Ex. Ct. Mahadev Vs. The Director General, Boarder Security Force Ors.
[Civil Appeal No. 2606 of 2012]
Hima Kohli, J.
1. The appellant is aggrieved by the judgement dated 3rd March, 2011 passed by the Division Bench of the High Court of Delhi dismissing a writ petition filed by him, registered as WP(C)No.6709/2008, wherein he had challenged the order dated 19th March, 2008 passed by the respondent No.4 herein convicting him to life imprisonment for an offence committed under Section 46 of the Border Security Force Act, 19681 , that is to say for murder punishable under Section 302 of the Indian Penal Code, 18602. By the impugned order, the Division Bench has upheld the order passed by the respondent No.2 – Appellate Authority, whereby the statutory appeal filed by the appellant was dismissed and the order dated 10th March, 2007 passed by the General Security Force Court was upheld3.
2. The brief facts of the case are that the appellant, who was serving in the BSF, was tried by the GSFC in the year 2007, for committing an offence under Section 46 of the BSF Act, that is to say murder punishable under Section 302 of the IPC and the charges framed against him were as follows :
“The accused No.89131037, Const. Mahadev, of 131 Bn. BSF is charged with:
BSF ACT COMMITTING A CIVIL OFFENCE, THAT IS TO SAY
SEC.46 MURDER, PUNISHABLE U/S 302 IPC
In that he,
In a rubber garden located between BP No.2007/S-3 and BP No.2008/MP in AOR of BOP Bamutia, on 05/06/1004 at about 08:15 hrs. by firing shots from his INSAS Rifle bearing Butt No.503, Body No.16397/159 caused the death of a civilian namely Nandan Deb S/o Sh. Atinder Dev R/o Village- Rangotia, PS-Sidhal, Distt.-West Tripura and thereby committed murder.”
3. On the appellant pleading not guilty to the charge framed against him, the prosecution proceeded to examine seventeen witnesses. The appellant did not produce any witness. However, he made an oral statement in his defence. The plea of private defence taken by the appellant was rejected and on 10th March, 2007, the GSFC held him guilty of the charge and sentenced him to suffer imprisonment for life besides dismissing him from service. Vide order dated 4th April, 2007, the Convening Officer confirmed the findings and the sentence imposed on the appellant. Aggrieved by the said order, the appellant preferred a statutory petition, which was dismissed by the respondent No.1 – Union of India, vide order dated 19th March, 2008 that has been upheld by the High Court.
4. For arriving at the aforesaid conclusion, the High Court has primarily relied on the testimony of Dr. Ranjit Kumar Das (PW-10), who had conducted the postmortem on the body of the deceased and deposed that he had died due to firearm injuries and two bullets had pierced his body. It was noticed that PW-10 had deposed that having regard to the nature and place of the injuries, the position of the firer as against that of the deceased was such that the one who would have fired the shot, must have been on an elevated position compared to the victim since the direction of the bullets were from above the chest, going downwards and backward. Going by the said testimony read along with the testimony of SI Shanti Bhushan Bhuiya (PW-13), who had deposed that when he saw the dead body, both the legs were in a folded position, the High Court arrived at the conclusion that the appellant had made the deceased to crouch down and thereafter, had fired two shots at him.
5. Mr. Lalit Kumar, learned counsel for the appellant argued that the High Court has erred in concurring with the findings of the GSFC and discarding the defence taken by the appellant that he was compelled to exercise his right of private defence to save his life when suddenly confronted with intruders who were armed with weapons and had ‘gheraoed’ him. He alluded to the topography of the Rubber plantation where the incident had taken place, which was admittedly uneven with depressions and undulations, to urge that merely because the deceased was found with his legs in a folded position, could not be a ground to indict the appellant having regard to the fact that even as per the version of CT H.
Vijay Kumar (PW-1), the eye-witness who was patrolling in the area along with the appellant, the latter was positioned at a higher level vis-ஶis the deceased and therefore, it was but natural that on his firing from his rifle, the bullets would have hit the deceased on the upper part of his body as he was positioned at a lower level. It is in this manner that learned counsel for the appellant has sought to explain the path of the bullets that had pierced the body of the deceased and indicated that the shots were fired by the appellant taking a downward angle and not face on face.
6. Learned counsel for the appellant also referred to the testimony of Sapan Das (PW-2) and other prosecution witnesses to submit that villagers in the area being close to the border of Bangladesh, used to regularly indulge in smuggling activities and even the deceased used to do so. He pointed out that this fact had not only been deposed by PW-1, but also by SI (M) Suresh Kumar Dagar (PW-17), who during his crossexamination, had stated in so many words that since the deployment of 131 Battalion, BSF and prior to the incident in question, trans-border criminals had attacked BSF personnel seven times and most of the times, they had to use force by opening fire in self-defence and the defence of property. In fact, the deceased had been apprehended for indulging in smuggling activities and his name features in the list of smugglers maintained by the BSF.
He also adverted to the fact that currency worth 24,700 Bangladeshi Takas was recovered from the shirt pocket of the deceased along with a ‘Dah’ that was found lying at the spot next his body. The point sought to be made was that in the above backdrop, the High Court ought not to have discarded the testimony of PW-1 and PW-17 to arrive at a conclusion that this was a case of cold-blooded murder committed by the appellant whereas he had acted in the heat of the moment, purely in his self defence.
7. Per contra, Ms. Aishwarya Bhati, learned Additional Solicitor General, appearing for the respondents – Union of India, has stoutly defended the findings returned by the GSFC and upheld the High Court. She submitted that the High Court cannot be faulted for disbelieving the testimony of PW-1, an eye-witness to the incident who was on duty at the Rubber plantation along with the appellant on the fateful day. It is her contention that the findings of the GSFC are sound and reliance has rightly been placed on the testimonies of the local villagers, namely, Sapan Das (PW-2), another witness by the name of Sapan Das (PW-3), Tapan Das (PW-4) and Sunil Das (PW-5), who had stated that the appellant had summoned the deceased and then shot at him twice without any provocation. She submitted that the testimony of the doctor (PW-10) was a clincher and left no manner of doubt that the appellant had made the deceased to kneel down and thereafter fired two shots directly at him, causing his death.
8. We have carefully considered the arguments advanced by learned counsel for the parties and perused the records, particularly, the testimony of the material witnesses and the statement of defence made by the appellant.
9. The singular question that requires to be examined in the present appeal is whether the appellant was entitled to exercise the right of private defence in the given facts and circumstances of the case.
10. We may commence the discussion by first observing that the instinct of selfpreservation is embedded in the DNA of every person. The doctrine of the right to private defence is founded on the very same instinct of self-preservation that has been duly enshrined in the criminal law. The provisions that deal with the right of private defence have been enumerated in Sections 96 to 106 of the IPC and fall under Chapter IV that deals with General Exceptions. Section 96 IPC states that nothing is an offence which is done in the exercise of the right of private defence. Whether a person has legitimately acted in exercise of the right of defence given a particular set of facts and circumstances, would depend on the nuance of each case.
For arriving at any conclusion, the Court would be required to examine all the surrounding circumstances. If the Court finds that the circumstances did warrant a person to exercise the right of private defence, then such a plea can be considered. Section 97 IPC states that every person has a right of defence of person as well as of property.Section 99 IPC refers to the acts against which there is no right of private defence and the extent to which the said right can be exercised. On a perusal of the aforesaid provision, it is apparent that the rights vested under Sections 96 to 98 and 100 to 106 IPC are broadly governed by Section 99 IPC.
11. Section 100 IPC throws light on the circumstances in which the right of private defence of body can be stretched to the extent of voluntarily causing death. To claim such a right, the accused must be able to demonstrate that the circumstances were such that there existed a reasonable ground to apprehend that he would suffer grievous hurt that would even cause death. The necessity of averting an impending danger is the core criteria for exercising such a right.Both Sections 100 and 101 IPC define the circumstances in which the right of private defence of the body extends to causing death or causing any harm other than death.
Provisions of Sections 102 and 105 IPC stipulate the stage of commencement and continuance of the right of private defence of the body and property respectively and state that the said right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though such an offence may not have been committed. The provisions state that it continues as long as such an apprehension or danger to the body continues.
12. In Rizan and Another v. State of Chhattisgarh through the Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh 4 , this Court has observed that the accused need not prove the existence of private self-defence beyond reasonable doubt and that it would suffice if he could show that the preponderance of probabilities is in favour of his plea, just as in a civil case.
13. In State of M.P. v. Ramesh 5, it was observed that:
“11. …………A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting…….. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.”
14. Section 105 of the Indian Evidence Act, 1872 states that the burden of proof rests with the accused who takes up the plea of self defence. In the absence of proof, the Court will not be in a position to assume that there is any truth in the plea of self defence. Thus, it would be for the accused to adduce positive evidence or extract necessary information from the witnesses produced by the prosecution and place any other material on record to establish his plea of private defence. In James Martin v. State of Kerala 6, it has been observed by this Court as under:
“13. ………An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.
The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram v. Delhi Admn.7 , State of Gujarat v. Bai Fatima8 , State of U.P. v. Mohd. Musheer Khan9 and Mohinder Pal Jolly v. State of Punjab10…. …. The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.”
15. In the captioned decision, reliance has been placed on the observations made by this Court in Salim Zia v . State of Uttar Pradesh .11, wherein it has been held as under:
“9. …….It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence.”
16. In Dharam and Others v. State of Haryana 12, this Court had the occasion to examine the scope of the right of private defence and had made the following pertinent observations:
“18. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.”
17. In Buta Singh v. State of Punjab 13, this Court had emphasised that a person who is apprehending death or bodily injury, cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. Referring to the said decision, this Court had made the following observations in James Martin (supra):
“17. …… In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him. Where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping.
Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preserva- tion is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
20. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggres – sion and not as a retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.”
18. The situation in which the plea of a right to private defence would be available to the accused was discussed by this Court in Bhanwar Singh and Others v. State of Madhya Pradesh 14 and it was held thus:
“50. The plea of private defence has been brought up by the appellants. For this plea to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death. Hence, if the court were to reject this plea, there are two possible ways in which this may be done. On one hand, it may be held that there existed a right to private defence of the body. However, more harm than necessary was caused or, alternatively, this right did not extend to causing death. Such a ruling may result in the application of Section 300 Exception 2, which states that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private de – fence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The other situation is where, on appreciation of facts, the right of private defence is held not to exist at all. xxx 60. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. Necessity must be present, real or apparent.”
19. The principles underlying the doctrine of right to private defence have been neatly summed up in the captioned case in the following words :- “61. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
We may, however, hasten to add that the means and the force a threatened person adopts on the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence. (See Dharam v. State of Haryana15)”
20. In Raj Singh v. State of Haryana and Others 16, supplementing the view of Justice R. Banumathi, who had authored the decision on behalf of a three Judges Bench, Justice T.S. Thakur had the following to state on the application of the provisions of Exception 2 to Section 300 IPC where an accused sets up the right to private defence:
“32. A conjoint reading of the provisions of Sections 96 to 103 and Exception 2 to Section 300 IPC leaves no manner of doubt that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence, provided that such right is exercised without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. A fortiori in cases where an accused sets up right of private defence, the first and the foremost question that would fall for determination by the court would be whether the accused had the right of private defence in the situation in which death or other harm was caused by him.
If the answer to that question is in the negative, Exception 2 to Section 300 IPC would be of no assistance. Exception 2 presupposes that the offender had the right of private defence of person or property but he had exceeded such right by causing death. It is only in case answer to the first question is in the affirmative viz. that the offender had the right of defence of person or property, that the next question viz. whether he had exercised that right in good faith and without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence would arise. Should answer to any one of these questions be in the negative, the offender will not be entitled to the benefit of Exception 2 to Section 300 IPC.
33. Absence of good faith in the exercise of the right of private defence, premeditation for the exercise of such right and acts done with the intention of causing more harm than is necessary for the purpose of such defence would deny to the offender the benefit of Exception 2 to Section 300 IPC. The legal position on the subject is fairly well settled by a long line of decisions of this Court to which copious reference has been made by Banumathi, J. No useful purpose would, therefore, be served by referring to them over again. All that need be said is that whether or not a right of private defence of person or property was available to the offender is the very first question that must be addressed in a case of the present kind while determining the nature of the offence committed by the accused, whether or not a right of private defence was available to an offender is, in turn, a question of fact or at least a mixed question of law and fact to be determined in the facts and circumstances of each individual case that may come up before the court.”
21. To sum up, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. 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. At the same time, 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. 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.
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.
22. Being mindful of the afore-stated parameters, we may examine the plea of selfdefence raised by the appellant in the attending facts and circumstances of the case. The factum of rampant smuggling in the area has not been disputed by either side. 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. A couple of months after the fencing had been fixed along the International border with Bangladesh, there was an incident where smugglers had assaulted one of the members of the Battalion when he was trying to prevent them from crossing the border. That the deceased used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF, is also a matter of record.
23. Viewed in the above setting, we may proceed to examine the statement by way of defence made by the appellant which has been extracted at some length in the impugned judgment. He has stated at the relevant time, that he was posted at BOP Bamutia, Tripura, which is adjoining to the border of Bangladesh. While on patrolling duty in the early hours of 5th June, 2004, he admitted to have fired from his rifle at one Nandan Deb, who died as a result of the firearm injuries. The version of the appellant was that when he was patrolling along with CT H. Vijay Kumar (PW-1), in the Rubber plantation, an area with depressions and undulations on the ground surface, he had noticed 6-7 persons crossing over from Bangladesh by cutting across the International border. They had tried to ‘gherao’ him and PW-1.
They were armed with weapons like ”Bhala’, ‘Dah’ and ‘Lathi’. Seeing himself cornered, the appellant started to retreat. But the intruders kept closing him and were in or at a distance of ten yards. Faced with such a precarious situation where the appellant gathered an impression that the intruders were going to attack him any minute, fearing for his life, the appellant fired two rounds in the air. This did not deter the intruders who kept on inching closer to the appellant. When one of the intruders, namely, Nandan Deb came as close as 3-4 yards from him and tried to attack him by raising his ‘Dah’, apprehending an imminent and perceptible threat to his life, the appellant fired at him due to which he fell on the ground. While, the other miscreants fled away to Bangladesh, Nandan Deb collapsed at the spot and was declared dead.
24. Having scanned the testimony of the prosecution witnesses, we are of the opinion that the testimony of CT H Vijay Kumar (PW-1) cannot be completely discarded, as done by the GSFC. He has deposed that when he and the appellant were patrolling in the area on the relevant date, they had seen three persons crossing the international border from Bangladesh side at 8.00 AM. On noticing the intruders, they had challenged them to stop at a distance of 50 meters. But the intruders ran away in the direction of Bangladesh. At this, PW-1 and the appellant had turned back and while continuing with their patrolling duty, they saw 6-7 persons rushing towards them from the side of Bangladesh, carrying weapons like ‘Dah’, ‘Bhala’ and ‘Lathi’ in their hands. 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. The trajectory of the bullets indicates that the firing took place from a higher position vis-ஶis the deceased. But that does not necessarily mean that the appellant had summoned the deceased and made him crouch on the ground before shooting at him, as assumed by the High Court.
The uneven terrain of the Rubber plantation with slopes and undulating surface would offer a plausible alternate explanation for the trajectory of the bullets fired by the appellant at the deceased. If the former was positioned at an elevated spot, then it was inevitable that the bullets would have hit the chest of the deceased who was down below the slope, and made a path downwards in the body. Thus the preponderance of probabilities would swing in favour of the plea of self defence taken by the appellant.
25. On a broad conspectus of the events as they had unfolded, we are of the opinion 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. We are therefore of the opinion that 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.
26. In view of the aforesaid discussion, the appeal is partly allowed and the impugned judgment is modified to the extent that the appellant is held guilty for the offence of culpable homicide, not amounting to murder as contemplated under Exception 2 to Section 300 IPC. Records reveal that by the time the appellant was granted bail by this Court on 4th July, 2016, he had already suffered incarceration for a period of over eleven years, which given the peculiar facts and circumstances of the present case, is considered sufficient punishment for the offence. The appellant is accordingly set free for the period already undergone and the bail bonds stand discharged.
27. The appeal is disposed of on the above terms.
……………………………J. [B.R. GAVAI]
……………………………..J. [HIMA KOHLI]
JUNE 14 , 2022
1 for short ‘BSF Act’
2 for short ‘IPC’
3 for short ‘GSFC’
4 (2003) 2 SCC 661
5 (2005) 9 SCC 705
6 (2004) 2 SCC 203
7 AIR 1968 SC 702
8 (1975) 2 SCC 7
9 (1977) 3 SCC 562]
10 (1979) 3 SCC 30
11 (1979) 2 SCC 648
12 (2007) 15 SCC 241
13 (1991) 2 SCC 612
14 (2008) 16 SCC 657
15 (2007) 15 SCC 241
16 (2015) 6 SCC 268