EX. CT. MAHADEVversusTHE DIRECTOR GENERAL, BOARDER SECURITY FORCE & ORS.

1136                       [2022]
                SUPREME COURT     7 S.C.R. 1136
                               REPORTS                     [2022] 7 S.C.R.


 A                            EX. CT. MAHADEV
                                     v.
             THE DIRECTOR GENERAL, BOARDER SECURITY
                              FORCE & ORS.
                      (Civil Appeal No. 2606 of 2012)
 B
                                 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
 C     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
 D     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
 E     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
 F     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.
 G
             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
 H     produced by the prosecution and place any other material on record
                                       1136
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1137
             SECURITY FORCE & ORS.

to establish his plea of private defence – Accused need not prove     A
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          B
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     C
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   D
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   E
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       F
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          G
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.        H
1138            SUPREME COURT REPORTS                       [2022] 7 S.C.R.


 A     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
 B
       provisions state that it continues as long as such an apprehension
       or danger to the body continues. 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.
 C     [Paras 10-12][1145-A-G; 1146-A]
             Rizan and Another v. State of Chhattisgarh through the
             Chief Secretary, Government of Chhattisgarh, Raipur,
             Chhattisgarh (2003) 2 SCC 661 : [2003] 1 SCR 457;
             State of M.P. v. Ramesh (2005) 9 SCC 705 : [2004]
 D           6 Suppl. SCR 152 -relied on.
              1.2 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
 E     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. The right of private
       defence is necessarily a defensive right which is available only
       when the circumstances so justify it. The circumstances are those
 F     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
 G     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
 H
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1139
             SECURITY FORCE & ORS.

proper or not. The Court’s assessment would be guided by several        A
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
                                                                        B
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. [Paras
14 and 21][1146-E-F; 1152-B-F]
      James Martin v. State of Kerala (2004) 2 SCC 203 :                C
      [2003] 6 Suppl. SCR 910; Salim Zia v. State of Uttar
      Pradesh (1979) 2 SCC 648 : [1979] 2 SCR 394;
      Dharam and Others v. State of Haryana (2007) 15 SCC
      241 : [2006] 10 Suppl. SCR 391; Buta Singh v. State of
      Punjab (1991) 2 SCC 612; Bhanwar Singh and Others                 D
      v. State of Madhya Pradesh (2008) 16 SCC 657 : [2008]
      9 SCR 1; Raj Singh v. State of Haryana and Others
      (2015) 6 SCC 268 : [2015] 7 SCR 268 – relied on.
      1.3 The factum of rampant smuggling in the area has not
been disputed by either side. The records reveal that border            E
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         F
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. The
testimony of PW-1 cannot be completely discarded, as done by            G
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
                                                                        H
1140            SUPREME COURT REPORTS                      [2022] 7 S.C.R.


 A     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 tow ards 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
 B
       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
 C     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,
 D
       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. The right of private self defence would be available to
 E     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
 F
       of the shots had pierced through the deceased, causing his death.
       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
 G     of Section 304 IPC. 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. By the time the appellant was
       granted bail by this Court on 4 th July, 2016, he had already
       suffered incarceration for a period of over eleven years, which
 H
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1141
             SECURITY FORCE & ORS.

given the peculiar facts and circumstances of the present case, is          A
considered sufficient punishment for the offence. The appellant is
set free for the period already undergone and the bail bonds stand
discharged. [Paras 22, 24-26][1152-G-H; 1154-A-H; 1155-A]
                          Case Law Reference
[2003] 1 SCR 457                   relied on               Para 12          B
[2004] 6 Suppl. SCR 152            relied on               Para 13
[2003] 6 Suppl. SCR 910            relied on               Para 14
[1979] 2 SCR 394                   relied on               Para 15
[2006] 10 Suppl. SCR 391           relied on               Para 16          C
[2008] 9 SCR 1                     relied on               Para 18
[2015] 7 SCR 268                   relied on               Para 20
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.2606
of 2012.
                                                                            D
      From the final Judgment dated 03.03.2011 of the High Court of
Delhi at New Delhi in Writ Petition (C) No.6709 of 2008.
          Lalit Kumar, Adeel Ahmed, Advs. for the Appellant.
      Ms. Aishwarya Bhati, ASG, R. Balasubramanian, Sr. Adv., B.
Krishna Prasad, Nachiketa Joshi, Rajan Kumar Chourasia, Ms. Shivika         E
Mehra, Pranay Ranjan, Navanjay Mahapatra, Ms. Shagun Thakur, Arvind
Kumar Sharma, Advs. for the Respondents.
          The Judgment of the Court was delivered by
          HIMA KOHLI, J.
       1. The appellant is aggrieved by the judgement dated 3rd March,      F
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 ,        G
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

1
    for short ‘BSF Act’
2
    for short ‘IPC’                                                         H
1142                SUPREME COURT REPORTS                        [2022] 7 S.C.R.


 A     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
 B     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:
 C               BSF ACT      COMMITTING A CIVIL OFFENCE, THAT IS TO
                              SAY
                 SEC.46       MURDER, PUNISHABLE U/S 302 IPC
                              In that he,
 D                            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-
 E
                              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
 F
       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
 G     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.

       3
 H         for short ‘GSFC’
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1143
        SECURITY FORCE & ORS. [HIMA KOHLI, J.]

       4. For arriving at the aforesaid conclusion, the High Court has         A
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
                                                                               B
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,       C
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        D
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
                                                                               E
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    F
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.                                                                  G
       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,
                                                                               H
1144             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


 A     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
 B
       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
 C     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
 D     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
 E     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)
 F     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
 G     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.
 H
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1145
        SECURITY FORCE & ORS. [HIMA KOHLI, J.]

       10. We may commence the discussion by first observing that the         A
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     B
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     C
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   D
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         E
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           F
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        G
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, Chhattisgarh4,
4
    (2003) 2 SCC 661                                                          H
1146                SUPREME COURT REPORTS                           [2022] 7 S.C.R.


 A     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. Ramesh5, it was observed that :
 B              “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
 C              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
 D              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
 E     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
 F     James Martin v. State of Kerala6, 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
 G
                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

       5
           (2005) 9 SCC 705
 H     6
           (2004) 2 SCC 203
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1147
        SECURITY FORCE & ORS. [HIMA KOHLI, J.]

       reasonable and probable version satisfying the court that the harm         A
       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
                                                                                  B
       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       C
       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        D
       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        E
       plea in the cross-examination of prosecution witnesses or by
       adducing defence evidence.”
      16. In Dharam and Others v. State of Haryana12, this Court
had the occasion to examine the scope of the right of private defence
and had made the following pertinent observations:                                F
       “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       G
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                                                              H
1148                SUPREME COURT REPORTS                            [2022] 7 S.C.R.


 A               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
 B
                 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
 C               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.”
 D             17. In Buta Singh v. State of Punjab13, 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) :
 E
                 “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
 F               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
 G               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-preservation 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

 H     13
            (1991) 2 SCC 612
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1149
        SECURITY FORCE & ORS. [HIMA KOHLI, J.]

          aggressor, even after the cause of reasonable apprehension has            A
          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.
                                          xxxx                                      B
          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       C
          retribution, expected to repel unlawful aggression 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.”                 D

       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 Pradesh14 and it was
held thus :
                                                                                    E
          “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             F
          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
                                                                                    G
          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 without premeditation, and without
          any intention of doing more harm than is necessary for the purpose
14
     (2008) 16 SCC 657                                                              H
1150                SUPREME COURT REPORTS                          [2022] 7 S.C.R.


 A            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
 B            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
 C     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
 D            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
 E            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
 F            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.
 G            (See Dharam v. State of Haryana 15)”
              20. In Raj Singh v. State of Haryana and Others16, 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
       15
            (2007) 15 SCC 241
       16
 H          (2015) 6 SCC 268
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1151
        SECURITY FORCE & ORS. [HIMA KOHLI, J.]

state on the application of the provisions of Exception 2 to Section 300          A
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,        B
      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       C
      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                 D
      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
                                                                                  E
      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           F
      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      G
      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
                                                                                  H
1152             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


 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.”
 B
               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
 C     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
 D     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
 E     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
 F     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
 G     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
 H
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1153
        SECURITY FORCE & ORS. [HIMA KOHLI, J.]

when he was trying to prevent them from crossing the border. That the          A
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               B
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        C
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       D
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               E
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.                                                                 F
       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       G
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
                                                                               H
1154             SUPREME COURT REPORTS                              [2022] 7 S.C.R.


 A     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
 B     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
 C
       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.
 D
              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
 E     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
 F
       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
 G     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
 H
EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER 1155
        SECURITY FORCE & ORS. [HIMA KOHLI, J.]

case, is considered sufficient punishment for the offence. The appellant       A
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.

                                                                               B
Divya Pandey                                          Appeal partly allowed.




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