EX. CT. MAHADEV versus THE DIRECTOR GENERAL, BOARDER SECURITY FORCE & ORS.

Citation: [2022] 7 S.C.R. 1136 · Decided: 14-06-2022 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Case Partly allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 7 S.C.R.
   [2022] 7 S.C.R. 1136
1136
EX. CT. MAHADEV
v.
THE DIRECTOR GENERAL, BOARDER SECURITY
FORCE & ORS.
(Civil Appeal No. 2606 of 2012)
JUNE 14, 2022
[B. R. GAVAI AND HIMA KOHLI, JJ.]
Border Security Force Act, 1968 – s.46 – Penal Code, 1860 –
ss.96-100 & s.302, Exception 2 to s.300 and s.304 –  Plea of self
defence – When available – Appellant, serving in BSF was convicted
for an offence committed u/s.46, BSF Act i.e. for murder u/s.302,
IPC and was sentenced to life imprisonment – Statutory appeal filed
by the appellant was dismissed – Order upheld by High Court –
Held: Whether a person has legitimately acted in exercise of the
right of defence would depend on the nuance of each case – 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 – In the present case, the right of private self defence would
be available to the appellant keeping in mind preponderance of
probabilities that leans in his favour – In a situation where he was
suddenly confronted by a group of intruders, who came 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 – In the process two of the shots
pierced through the deceased, causing his death – Appellant ought
not to have been convicted for the murder of the deceased – Rather,
the offence made out is of culpable homicide not amounting to murder
u/Exception 2 to s.300 IPC, thereby attracting s.304, IPC – Impugned
judgment modified – Further, on facts, period already undergone is
sufficient punishment for the offence – Appellant set free.
Penal Code, 1860 – ss.96-100 – Right of private defence –
Evidence Act, 1872 – s.105 – Burden of proof – Held: s.105 states
that the burden of proof rests with the accused who takes up the
plea of self defence – It is 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
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to establish his plea of private defence – Accused need not prove
the existence of private self-defence beyond reasonable doubt and
it would suffice if he could show that the preponderance of
probabilities is in favour of his plea, just as in a civil case.
Penal Code, 1860 – ss.96-100 – Plea of right of private
defence – When available – Circumstances enumerated to guide
assessment by Courts.
Partly allowing the appeal, the Court
HELD: 1.1 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 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. The rights vested under Sections 96 to 98 and
100 to 106 IPC are broadly governed by Section 99 IPC. 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 

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