Private Defence Must Be Strictly Preventive, Not Punitive Or Retributive In Nature: Supreme Court

The Supreme Court (on January 09) observed that private defence must be strictly preventive and not punitive or retributive. The Court reiterated that causing death can only be justified when the accused is faced with a reasonable apprehension of death or grievous hurt. The impending danger must be present, real or apparent., the Court said.The Bench of Justices JB Pardiwala and R Mahadevan were deciding a criminal appeal against the appellant's conviction for the offence of murder. To provide a brief factual background, the appellant owned his own agricultural farm. The deceased was trying to put up a fence in some part of his land and the same was objected to by the appellant's father.It was the prosecution's case that the appellant and his father caught hold of the deceased and the appellant stabbed him. Though the father was acquitted, the appellant was convicted via the Trial Court's order. The same was affirmed by the High Court. Thus, the present appeal.At the outset, the Court perused the concerned provisions of private defence provided under the Indian Penal Code. It opined that in order to determine whether apprehension was reasonable, facts and circumstances will have to be seen. The court, while deciding this question of fact, is to take into consideration various facts, like the weapon used, the manner and nature of assault, the motive and other circumstances., it added.Reliance was placed upon Darshan Singh v. State of Punjab and another (2010) 2 Supreme Court Cases 333, wherein the Court summarised the principles for the right of private defence.“The Court should take an overall view of the case and if a right of self-defence is made out from the evidence on record, that right should not be construed narrowly because the right of selfdefence is a very valuable right and it has a social purpose.,” the Court observed in the present case.Building on these observations, the Court opined that the facts do not suggest such reasonable apprehension of imminent danger on the part of the accused. Not only this but there was also no imminent threat to the appellant's property. The Court also pointed out that the appellant has also failed why putting up a fence was vehemently opposed by him and his father.After perusing the evidence, the Court also noted that the appellant, even after inflicting two stab wounds, continued with the assault. Thus, the force applied exceeded what was necessary for self-defense. Moreover, this shift indicated an act of aggression and not of defense.“In the case of private defense, the actions taken must be strictly preventive, aimed at averting the danger, rather than punitive or retributive. The continued assault after the initial injury demonstrates a disproportionate use of force, which is inconsistent with the principle of self-defence. Even if we were to assume that the initial actions were taken in self-defense, although it is not the case, the subsequent assault reveals a shift in the accused's intention from protecting himself & his property to inflicting harm and wrecking vengeance upon the deceased.”Thus, the Court also denied the benefit of Section 300, exception 2 of IPC to the appellant. For reference, the same reads as:“Exception 2. – 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 without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.”However, the Court said that to claim this benefit, there must be good faith, meaning actions done in the absence of due care and attention.“In this instance, inflicting a murderous assault with a deadly weapon upon the unarmed deceased and subsequently continuing to beat him, even when the deceased fell to the ground, provides a clear indication that the accused had not acted in good faith and had the intention of causing more harm than was necessary.,” the Court said.Apart from this, the lack of pre-meditation is also a must. However, the Court highlighted that the appellant was already bearing a knife when he arrived on the scene after his father called him.Further, the Court also turned down the appellant's argument that his act may, in alternative fall into talking about Exception 4 (Culpable homicide is not murder if it is committed without premeditation in a sudden fight). Explaining, the Court said that though the act may have occurred in the heat of passion the appellant had a knife with him whereas the deceased had nothing with him and was helpless. Therefore, this amounts to taking undue advantage or acting in a cruel or unusual manner., the Court said.In view of these observations, the Court categorically refused to interfere with the impugned orders. However, considering that the appellant was a convict for around nine years, the Court left it...

Private Defence Must Be Strictly Preventive, Not Punitive Or Retributive In Nature: Supreme Court

Gyanvi Khanna

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