Case BriefsSupreme Court

Supreme Court: In an interesting case, where a man was convicted for murder of his younger brother, the bench of Sanjiv Khanna* and Bela M. Trivedi, JJ has converted the conviction from Section 302 to Part I of Section 304 of the IPC after holding that to discharge the burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.

In the case at hand, the appellant was convicted for killing his younger brother. He had then himself went to the police station and confessed the crime, albeit, the confession is inadmissible as proof of confession is prohibited under Section 25 of the Evidence Act, 1872. The weapon i.e. the pick-axe and the blood stained shirt of the appellant were recovered based on the appellant’s disclosure.

According to the testimonies of various family members and the neighbours, the deceased was an alcoholic who barely interacted with the family, and used to torment, abuse and threaten the appellant. This fact was relied upon by the prosecution to establish the motive. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. The appellant had also tried to commit suicide.

In is in the light of these facts, that the Supreme Court explained that,

“The prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.”

Hence, applying the prosecution version in the appellant’s defence, it was noticed that there was sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, it was held that the acts of provocation on the basis of which the appellant caused the death of his brother, were both sudden and grave and that there was loss of self-control.

Applying the provocation exception, the Court converted the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC. Further, considering that the appellant has already suffered incarceration for over 10 years, as he has been in custody since 27th September, 2011, the Court modified the sentence of imprisonment to the period already undergone. In addition, the appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, the appellant will be released forthwith, if not required to be detained for any other case

[Dauvaram Nirmalkar v. State of Chhattissgarh, 2022 SCC OnLine SC 955, decided on 02.08.2022]


*Judgment by: Justice Sanjiv Khanna

Case BriefsSupreme Court

Supreme Court: The bench of BR Gavai and Hima Kohli*, J has held that while deciding a case relating to right to private defence, the Court’s assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc.

“The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”

While the burden is on the accused, the accused need not prove the existence of private self-defence beyond reasonable doubt. It would suffice if he could show that the preponderance of probabilities is in favour of his plea, just as in a civil case.

Explaining the scope of the right of private defence, the Court observed that it is necessarily a defensive right which is available only when the circumstances so justify it. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid.

While it was observed that the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended, it was made clear that,

“This is not to say that a step-to-step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not.”

In the case at hand, the appellant, at the relevant time, was posted at BOP Bamutia, Tripura, which is adjoining to the border of Bangladesh, an area marred by rampant smuggling. The records reveal that border fencing in the area in question had been erected just a few months before the incident had taken place. Prior to that, many villagers used to freely indulge in smuggling activities by crossing over to the Bangladesh side and vice versa.

The deceased used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF. While on patrolling duty in the early hours of 5th June, 2004, the appellant admitted to have fired from his rifle at the deceased, who died as a result of the firearm injuries. He submitted that he noticed 6-7 persons crossing over from Bangladesh by cutting across the International border, who had tried to ‘gherao’ him and were armed with weapons like ‘’Bhala’, ‘Dah’ and ‘Lathi’. They managed to surround the appellant, who was closer to them. Apprehending an imminent and real threat to his life, the appellant had fired from his rifle at the intruders in self defence and the deceased who was a part of the group, sustained bullet injuries and had fallen on the ground.

On a broad conspectus of the events as they had unfolded and the testimonies of the witnesses, the Court held that the right of private self defence would be available to the appellant keeping in mind preponderance of probabilities that leans in favour of the appellant. In a fact situation where he was suddenly confronted by a group of intruders, who had come menacingly close to him, were armed with weapons and ready to launch an assault on him, he was left with no other option but to save his life by firing at them from his rifle and in the process two of the shots had pierced through the deceased, causing his death.

Hence, the appellant ought not to have been convicted for having committed the murder of the deceased. Rather, the offence made out is of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC, thereby attracting the provisions of Section 304 IPC.

Considering that by the time the appellant was granted bail by the Supreme Court on 4th July, 2016, he had already suffered incarceration for a period of over eleven years, the Court observed that given the peculiar facts and circumstances of the present case, the same is considered sufficient punishment for the offence. The Court, hence, set the appellant free for the period already undergone.

[Ex. Ct. Mahadev v. Border Security Force, 2022 SCC OnLine SC 739, decided on 14.06.2022]


*Judgment by: Justice Hima Kohli


Counsel for appellant: Advocate Lalit Kumar

Telangana High Court
Case BriefsHigh Courts

High Court for States of Andhra Pradesh & Telangana: In a dismal case of a mother strangling her two children to death and attempting to commit suicide on account of sheer frustration of her husband abandoning the family and the children persistently enquiring about their father, a Bench comprising CV Nagarjuna Reddy and Uma Devi, JJ. held that the mother was guilty of culpable homicide not amounting to murder, S. 304 of the Penal Code and also of attempt to commit suicide, S. 309 IPC.

Relying on the confession made by the appellant, the Court declared that the frustration of the appellant had turned into sudden provocation which made her take both the children’s lives and attempt to take her own. Therefore, the Court upheld the lower court’s finding of guilt under S. 309 but modified the conviction under S.302 (Punishment for Murder) to S. 304 part I (Culpable Homicide not amounting to Murder). She was further directed to serve a sentence of rigorous imprisonment for seven years. [Dudapaka Haritha v. State of Andhra Pradesh, 2017 SCC OnLine Hyd 210, decided on June 5, 2017]