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

Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J. allowed a petition which was filed by the petitioner challenging the orders passed by the District Magistrate rejecting the license under the Arms Act, 1959 (“the Arms Act”) for self-protection and order passed in appeal by the Additional Secretary Home Department in State Government confirming the previous order.

The petitioner had applied for obtaining arms license for self-protection under the provision of the Arms Act with all the necessary documents. Nothing adverse had been found against the petitioner in the reports prepared by District Superintendent of Police and Mamlatdar which was sought by respondent 2.

Advocate appearing for the petitioner submitted that both the authorities have not appreciated the true facts of the case and the reports issued in favour of the petitioner, while rejecting the application of the petitioner. It was also asserted by him that the petitioner needed the arm since he dealt with the mining business and he was also doing contract business, which required lot of travelling with cash.

The Court noted that nothing adverse regarding his involvement in any of the illegal activities or with regard to his character had been opined in the reports. The Court observed that the District Magistrate, while rejecting the application of the petitioner as well the appellate authority, while dealing with the appeal of the petitioner has passed the orders being oblivious to the provisions of Section 14 of the Arms Act, 1959, which pertains to the refusal of the license.

The Court while allowing the writ petition stated that it is not the case of the State authorities that the petitioner has been found not worthy of the license on the grounds mentioned under Section 14 of the Arms Act. The grounds of rejection nowhere indicate that the petitioner was not entitled for the arms license and he was treated to be unfit for the license under the Arms Act. Respondent 2 was directed to issue license to the petitioner pursuant to the application.

[Devshibhai Raydebhai Gadher v. State of Gujarat, 2022 SCC OnLine Guj 757, decided on 13-06-2022]

Mr Rutviz S Oza for the Petitioner 1

Mr Sahil Trivedi, AGP for the Respondent 1, 2

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., dismissed an appeal filed aggrieved by the judgment of High Court which convicted the three appellants for the count of murder punishable under Section 296 to be read with Section 32 of the Penal Code, sentencing them to death and the fourth appellant was convicted for a lesser offence punishable under Section 314 of the Penal Code. The appellants contended that prosecution had failed to prove the charge against the 1st Appellant beyond a reasonable doubt, there appears a conflict of evidence between the witnesses; evidence led at the trial negates common murderous intention on the part of 2nd and 3rd appellant and thus imputation of vicarious liability was legally and factually flawed.

The deceased was a police officer. His wife was a school teacher and the deceased and the wife were living in the teacher’s quarters inside the school premises. The witness stated that when she had gone for band practices she saw the 2nd and 3rd appellant had gone to the quarters that the deceased was living and had tapped on the door and then they were seen fighting and then the deceased went inside and the appellants moved towards the road. After a while the deceased had come out of the house, dressed in his police uniform and had gone towards the road, then the 2nd and 3rd Appellants and the 4th  Accused carrying poles had come towards the deceased and had assaulted him. Another witness had told that the 1st Appellant had stabbed the deceased.

The Court while dismissing the appeal held that the Trial Judge had considered all the evidence adduced at the trial, analyzed the same and rightly decided that the 1st Appellant stabbed the deceased that caused his death, there was no evidence of the 1st Appellant using his right of self-defence, at the trial and there was found no conflict between the evidence of the witnesses that would affect their credibility. Lastly, as per the established facts, the intention was clear that it was to kill the deceased when that injury was caused. There were 10 more injuries observed by the Medical Officer who conducted the autopsy on the body of the deceased, thus the High Court has rightly come to the correct conclusion that the prosecution has proved the charge of murder against the 1st, 2nd and 3rd Appellants beyond a reasonable doubt. [Maduwanage Francis Wimalaratne v. Attorney General, Court of Appeal Case No. HCC 226-227 of 2012, decided on 17-01-2020]