Summary
A BSF constable on patrol in a rubber plantation on the Bangladesh border in Tripura in June 2004 shot dead a villager, a listed smuggler, with his rifle. A General Security Force Court convicted him under Section 46 of the BSF Act for murder under Section 302 IPC and sentenced him to life imprisonment, rejecting his plea of private defence; the Delhi High Court upheld the conviction, inferring from the downward bullet trajectory and the folded legs of the body that he had made the deceased crouch before shooting. The Supreme Court held that private defence, which an accused need only show on a preponderance of probabilities, was made out: the fellow constable's account of six or seven armed intruders surrounding the appellant could not be discarded, and the undulating terrain explained the trajectory. The conviction was altered to Section 304 IPC under Exception 2 to Section 300.
Issues
- Whether the appellant was entitled to the right of private defence of the body when confronted by a group of armed intruders crossing the international border, and what standard of proof applies to that plea.
- Whether a downward bullet trajectory and the folded legs of the deceased justified the inference that he was made to crouch and shot in cold blood, so as to exclude private defence.
Provisions considered
- Sections 96 to 106 (right of private defence), Section 300 Exception 2 and Section 304, Indian Penal Code, 1860The right of private defence is defensive, not retributive, arises on a reasonable apprehension of danger to the body and continues while it lasts; force used cannot be weighed in golden scales. Where the right existed but was exceeded in causing death, Exception 2 to Section 300 applies and the offence is culpable homicide not amounting to murder. (¶¶ 10, 11, 16, 17, 18, 20, 21, 25)
- Section 105, Indian Evidence Act, 1872The burden of proving private defence lies on the accused but is discharged on a preponderance of probabilities, which may be established from the prosecution evidence itself without calling defence witnesses (Rizan, James Martin, Salim Zia). (¶¶ 12, 13, 14, 15)
- Section 46 (civil offence), Border Security Force Act, 1968The appellant was tried by the General Security Force Court for the civil offence of murder; his conviction was modified to culpable homicide not amounting to murder. (¶¶ 1, 2, 26)
Held
- Rampant cross-border smuggling, a recent assault on BSF personnel by smugglers, the deceased's name on the BSF list of smugglers and the recovery of Bangladeshi currency and a 'dah' beside his body formed the setting against which the plea had to be examined; the testimony of the fellow constable PW-1 that six or seven armed intruders rushed at and surrounded the appellant could not be completely discarded as the GSFC had done. (¶¶ 22, 23, 24)
- The trajectory of the bullets from a higher position does not necessarily mean the appellant made the deceased crouch before shooting; the uneven, sloping terrain of the rubber plantation offers a plausible alternative explanation, so the preponderance of probabilities favours self-defence. (¶ 24)
- Suddenly confronted by a group of armed intruders who had come menacingly close and were ready to attack, the appellant had no option but to fire; he ought not to have been convicted of murder, the offence made out being culpable homicide not amounting to murder under Exception 2 to Section 300 read with Section 304 IPC, and the eleven years' incarceration already undergone is sufficient punishment. (¶¶ 25, 26)
Result
Appeal partly allowed; the Delhi High Court's judgment of 03.03.2011 in WP(C) No. 6709 of 2008 modified, the appellant held guilty of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC and sentenced to the period of over eleven years already undergone; set free and bail bonds discharged.