Supreme Court Partially Allows Appeal in Border Security Force Act Case: Ex. Ct. Mahadev vs. The Director General, Boarder Security Force & Ors. (2022)

Introduction

Date of the Judgment: 14 June 2022

Citation: Civil Appeal No. 2606 of 2012

Judges: B.R. Gavai, J. and Hima Kohli, J.

Can a member of the Border Security Force (BSF) invoke the right of private defense when faced with a group of armed intruders near the border? The Supreme Court of India recently addressed this critical question in a case involving a BSF constable who was convicted of murder. The court examined whether the actions of the constable were justified under the right of private defense or if they constituted a criminal act. The judgment was delivered by a two-judge bench comprising Justice B.R. Gavai and Justice Hima Kohli, with the opinion authored by Justice Hima Kohli.

Case Background

The appellant, a BSF constable, was charged with murder under Section 46 of the Border Security Force Act, 1968, which refers to offenses punishable under Section 302 of the Indian Penal Code, 1860. The charges stemmed from an incident on June 5, 2004, where the appellant, while on patrol duty in a rubber garden near the Bangladesh border, fired his INSAS rifle, resulting in the death of a civilian named Nandan Deb. The prosecution contended that the appellant intentionally killed Nandan Deb, while the appellant claimed he acted in self-defense when confronted by armed intruders.

Timeline:

Course of Proceedings

The General Security Force Court (GSFC) found the appellant guilty of murder under Section 46 of the Border Security Force Act, 1968, read with Section 302 of the Indian Penal Code, 1860, and sentenced him to life imprisonment. The GSFC rejected the appellant’s plea of private defense. The Convening Officer confirmed the findings and sentence. The appellant’s statutory appeal was dismissed by the Union of India. The High Court of Delhi upheld the GSFC’s decision, primarily relying on the postmortem report, which indicated that the deceased was shot from an elevated position. The High Court concluded that the appellant had made the deceased crouch before firing the fatal shots.

Legal Framework

The case revolves around the right of private defense as outlined in Sections 96 to 106 of the Indian Penal Code, 1860. Section 96 states that “nothing is an offence which is done in the exercise of the right of private defence.” Section 97 grants every person the right to defend their person and property. Section 99 specifies the limits to this right. Section 100 details the circumstances under which the right of private defense extends to causing death, requiring a reasonable apprehension of grievous hurt or death. Sections 102 and 105 define the commencement and continuation of this right, emphasizing that it begins with a reasonable apprehension of danger and continues as long as that apprehension persists. Section 105 of the Indian Evidence Act, 1872, places the burden of proof on the accused to demonstrate self-defense.

Arguments

Appellant’s Arguments:

• The appellant argued that the High Court erred in rejecting his claim of private defense.
• He contended that he was surrounded by armed intruders and had to act in self-defense.
• He highlighted the uneven terrain of the rubber plantation, suggesting that the trajectory of the bullets was due to the difference in elevation between him and the deceased, not because he made the deceased crouch.
• The appellant pointed out that the deceased was a known smuggler, and the area was prone to smuggling activities, which supported his claim that the deceased and others were the aggressors.
• He referred to the testimony of SI (M) Suresh Kumar Dagar (PW-17) that 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.
• He also pointed out 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.

Respondent’s Arguments:

• The respondents argued that the High Court correctly upheld the GSFC’s findings.
• They relied on the testimonies of local villagers who stated that the appellant had summoned and shot the deceased without provocation.
• They emphasized the postmortem report, which suggested that the appellant had made the deceased kneel before shooting him.
• They contended that the appellant did not act in self-defense but committed a cold-blooded murder.

Issues Framed by the Supreme Court

The primary issue framed by the Supreme Court was:

1. Whether the appellant was entitled to exercise the right of private defense in the given facts and circumstances of the case.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered several authorities to determine the scope and applicability of the right to private defense. These authorities were used to establish the principles and limitations of this right.

Cases Cited:

• Rizan and Another v. State of Chhattisgarh through the Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh [(2003) 2 SCC 661], Supreme Court of India: This case was cited to establish that the accused need not prove self-defense beyond a reasonable doubt. It is sufficient to show that the preponderance of probabilities favors the plea.
• State of M.P. v. Ramesh [(2005) 9 SCC 705], Supreme Court of India: This case was cited to emphasize that a plea of private defense cannot be based on speculation and that the entire incident must be examined carefully. It also highlighted that the accused must show reasonable apprehension of death or grievous hurt to claim the right of private defense.
• James Martin v. State of Kerala [(2004) 2 SCC 203], Supreme Court of India: This case was used to support the view that the accused can establish self-defense through prosecution evidence and that the burden is discharged by showing a preponderance of probabilities.
• Munshi Ram v. Delhi Admn. [AIR 1968 SC 702], Supreme Court of India: This case was cited in *James Martin v. State of Kerala* to support the view that the accused can establish self-defense through prosecution evidence.
• State of Gujarat v. Bai Fatima [(1975) 2 SCC 7], Supreme Court of India: This case was cited in *James Martin v. State of Kerala* to support the view that the accused can establish self-defense through prosecution evidence.
• State of U.P. v. Mohd. Musheer Khan [(1977) 3 SCC 562], Supreme Court of India: This case was cited in *James Martin v. State of Kerala* to support the view that the accused can establish self-defense through prosecution evidence.
• Mohinder Pal Jolly v. State of Punjab [(1979) 3 SCC 30], Supreme Court of India: This case was cited in *James Martin v. State of Kerala* to support the view that the accused can establish self-defense through prosecution evidence.
• Salim Zia v. State of Uttar Pradesh [(1979) 2 SCC 648], Supreme Court of India: This case was cited to reiterate that the burden on the accused to establish self-defense is not as onerous as the prosecution’s burden.
• Dharam and Others v. State of Haryana [(2007) 15 SCC 241], Supreme Court of India: This case was cited to explain that the violence used in self-defense must not be disproportionate to the injury sought to be averted.
• Buta Singh v. State of Punjab [(1991) 2 SCC 612], Supreme Court of India: This case was used to emphasize that a person under threat cannot weigh the force used in self-defense in golden scales.
• Bhanwar Singh and Others v. State of Madhya Pradesh [(2008) 16 SCC 657], Supreme Court of India: This case was cited to highlight that the right of private defense is a defensive right, not a right of aggression or reprisal.
• Raj Singh v. State of Haryana and Others [(2015) 6 SCC 268], Supreme Court of India: This case was cited to clarify that culpable homicide is not murder if the offender exceeds the right of private defense without premeditation and without intending to do more harm than necessary.

Legal Provisions Considered:

• Sections 96 to 106 of the Indian Penal Code, 1860: These sections deal with the right of private defense, its extent, and limitations.
• Section 300 of the Indian Penal Code, 1860: This section defines murder. Exception 2 to this section was considered for culpable homicide not amounting to murder.
• Section 304 of the Indian Penal Code, 1860: This section deals with punishment for culpable homicide not amounting to murder.
• Section 46 of the Border Security Force Act, 1968: This section deals with the commission of civil offenses by BSF personnel.
• Section 105 of the Indian Evidence Act, 1872: This section places the burden of proving self-defense on the accused.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Rizan and Another v. State of Chhattisgarh [(2003) 2 SCC 661]: The Court followed this authority to establish that the accused need not prove self-defense beyond a reasonable doubt.
• State of M.P. v. Ramesh [(2005) 9 SCC 705]: The Court followed this authority to emphasize that a plea of private defense cannot be based on speculation and that the entire incident must be examined carefully.
• James Martin v. State of Kerala [(2004) 2 SCC 203]: The Court followed this authority to support the view that the accused can establish self-defense through prosecution evidence and that the burden is discharged by showing a preponderance of probabilities.
• Salim Zia v. State of Uttar Pradesh [(1979) 2 SCC 648]: The Court followed this authority to reiterate that the burden on the accused to establish self-defense is not as onerous as the prosecution’s burden.
• Dharam and Others v. State of Haryana [(2007) 15 SCC 241]: The Court followed this authority to explain that the violence used in self-defense must not be disproportionate to the injury sought to be averted.
• Buta Singh v. State of Punjab [(1991) 2 SCC 612]: The Court followed this authority to emphasize that a person under threat cannot weigh the force used in self-defense in golden scales.
• Bhanwar Singh and Others v. State of Madhya Pradesh [(2008) 16 SCC 657]: The Court followed this authority to highlight that the right of private defense is a defensive right, not a right of aggression or reprisal.
• Raj Singh v. State of Haryana and Others [(2015) 6 SCC 268]: The Court followed this authority to clarify that culpable homicide is not murder if the offender exceeds the right of private defense without premeditation and without intending to do more harm than necessary.

The Court held that the appellant had the right to private defense, given the circumstances, but he exceeded the limits of that right. The court found that the appellant was in a situation where he was surrounded by armed intruders and had a reasonable apprehension of danger to his life. However, the force used was deemed to be in excess of what was necessary, leading to a conviction for culpable homicide not amounting to murder under Exception 2 to Section 300 of the Indian Penal Code, 1860. The court modified the High Court’s judgment, holding the appellant guilty of culpable homicide not amounting to murder, punishable under Section 304 of the Indian Penal Code, 1860. Given that the appellant had already served over eleven years in prison, the court deemed this sufficient punishment and set him free.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, primarily focusing on the circumstances surrounding the incident and the legal principles governing the right of private defense. The Court carefully considered the evidence presented, including the testimonies of witnesses, the postmortem report, and the appellant’s statement of defense. The court also examined the topography of the area where the incident occurred and the prevalence of smuggling activities near the border.

The Court emphasized that the right of private defense is a defensive right, not a right of aggression. The Court noted that the appellant was in a situation where he was surrounded by armed intruders and had a reasonable apprehension of danger to his life. However, the Court also noted that the appellant had exceeded the limits of the right of private defense by using excessive force.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The sentiment analysis shows that the court gave significant weight to the apprehension of imminent danger and the uneven terrain. The ratio of fact to law indicates that the court’s decision was influenced more by the factual circumstances of the case than by purely legal considerations.

Logical Reasoning:

The court’s reasoning involved a step-by-step analysis of the facts, the evidence, and the law. The court first determined whether there was a reasonable apprehension of danger, then considered whether the force used was proportionate to the danger.

The Court considered the alternative interpretation that the appellant had made the deceased kneel down before shooting him, but rejected it based on the uneven terrain of the rubber plantation and the testimony of PW-1. The Court concluded that the appellant had acted in self-defense but had exceeded the limits of that right.

“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.”

“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.”

“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.”

Key Takeaways

• The right of private defense is a defensive right, not a right of aggression or reprisal.
• The accused need not prove self-defense beyond a reasonable doubt but by a preponderance of probabilities.
• The force used in self-defense must be proportionate to the danger apprehended.
• The burden of proof rests on the accused to demonstrate self-defense.
• Even if an accused has the right to private defense, exceeding the limits can lead to a conviction for culpable homicide not amounting to murder.

This judgment clarifies the application of the right of private defense in situations involving armed encounters. It emphasizes that while individuals have the right to protect themselves, the force used must be proportionate to the threat. The judgment also highlights the importance of considering all surrounding circumstances, including the topography of the area and the background of the incident, when evaluating a claim of self-defense. This judgment may influence future cases involving similar circumstances, particularly in areas prone to border-related issues and smuggling.

Directions

The Supreme Court modified the High Court’s judgment, holding the appellant guilty of culpable homicide not amounting to murder under Exception 2 to Section 300 of the Indian Penal Code, 1860. Given that the appellant had already served over eleven years in prison, the court deemed this sufficient punishment and set him free. The bail bonds were discharged.

Specific Amendments Analysis

There were no specific amendments discussed in the judgment.

Development of Law

The ratio decidendi of this case is that while the right of private defense is available to individuals facing imminent danger, the force used must be proportionate to the threat. The court clarified that the burden of proof for self-defense lies with the accused, who must establish it by a preponderance of probabilities. The judgment also reiterates that exceeding the limits of private defense can lead to a conviction for culpable homicide not amounting to murder. There is no change in the previous position of the law, but the court has reiterated the principles of law relating to private defence.

Conclusion

The Supreme Court partially allowed the appeal, modifying the High Court’s judgment. The Court held that the appellant had the right to private defense but had exceeded its limits, resulting in a conviction for culpable homicide not amounting to murder. The appellant was set free, considering the time already served in prison. This judgment underscores the importance of proportionality in the exercise of private defense and provides clarity on the legal principles governing such situations.