Civil Appeal No.2606 of 2012

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2606 OF 2012

EX. CT. MAHADEV .… APPELLANT

Versus

THE DIRECTOR GENERAL,

BOARDER SECURITY FORCE & ORS. ….. RESPONDENTS

J U D G M E N T

HIMA KOHLI, J.

1.The appellant is aggrieved by the judgement dated 3

rd

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 19

th

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, 1968

1

, that

is to say for murder punishable under Section 302 of the Indian Penal Code, 1860

2

. 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

1 for short ‘BSF Act’

2 for short ‘IPC’

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Civil Appeal No.2606 of 2012

dismissed and the order dated 10

th

March, 2007 passed by the General Security Force

Court was upheld

3

.

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 10

th

March, 2007, the GSFC held

him guilty of the charge and sentenced him to suffer imprisonment for life besides

3 for short ‘GSFC’

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Civil Appeal No.2606 of 2012

dismissing him from service. Vide order dated 4

th

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 19

th

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.

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Civil Appeal No.2606 of 2012

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-à-vis 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

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Civil Appeal No.2606 of 2012

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 cross-

examination, 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

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Civil Appeal No.2606 of 2012

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 self-

preservation 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

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Civil Appeal No.2606 of 2012

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

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Civil Appeal No.2606 of 2012

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 :

4 (2003) 2 SCC 661

5 (2005) 9 SCC 705

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Civil Appeal No.2606 of 2012

“11. …………A plea of right of private defence cannot be based on sur-

mises and speculation. While considering whether the right of private de-

fence 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 rea-

sonable 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 de-

fence. Thus, it would be for the accused to adduce positive evidence or extract neces-

sary 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

6 (2004) 2 SCC 203

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Civil Appeal No.2606 of 2012

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 Fatima

8

, State of U.P. v. Mohd. Musheer Khan

9

and Mohinder Pal Jolly v. State of Punjab

10

…. …. 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

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

Page 10 of 20

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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 appre-

hended to him. Where assault is imminent by use of force, it would be law-

ful to repel the force in self-defence and the right of private defence com-

mences, 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 weigh-

tage 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-

13 (1991) 2 SCC 612

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Civil Appeal No.2606 of 2012

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 nega-

tived. 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.

xxxx

20. The right of private defence is essentially a defensive right circum-

scribed by the governing statute i.e. IPC, available only when the circum-

stances 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 de-

fend 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 ex-

tended 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 mur-

der 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

14 (2008) 16 SCC 657

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Civil Appeal No.2606 of 2012

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 situa-

tion 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 nei-

ther 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 de-

fence 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 indi-

vidual 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 Haryana

15

)”

15 (2007) 15 SCC 241

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Civil Appeal No.2606 of 2012

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

16 (2015) 6 SCC 268

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Civil Appeal No.2606 of 2012

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

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Civil Appeal No.2606 of 2012

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 self-

defence 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

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Civil Appeal No.2606 of 2012

Bamutia, Tripura, which is adjoining to the border of Bangladesh. While on patrolling

duty in the early hours of 5

th

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,

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Civil Appeal No.2606 of 2012

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-à-vis 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

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Civil Appeal No.2606 of 2012

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 4

th

July, 2016, he had already suffered incarceration for a

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Civil Appeal No.2606 of 2012

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]

NEW DELHI,

JUNE 14 , 2022

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