Criminal

Law of Private Defence in India

KEYWORDS:-INDIAN PENAL CODE

Indian penal Code

THE POLICY

Right of Private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the court provided there is reasonable apprehension to life or reasonable apprehension of a grievous hurt to a person. It is well settled that the onus of proof on the accused as to exercise of right of Private defence is not as heavy as on the prosecution to prove guilt of the accused and it is sufficient for him to prove the defence on the touchstone of preponderance of probabilities (See Sat Narain v. State of Haryana, (2009) 17 SCC 141 In V. Subramani and Anr. v. State of Tamil Nadu, (2005) 10 SCC 358, this Court examined the nature of this right. this Court held that whether a person legitimately acted in exercise of his right of Private defence is a question of fact to be determined on the facts and circumstances of each case. In a given case it is open to the Court to consider such a plea even if the accused has not taken it, but the surrounding circumstances establish that it was available to him. The burden is on the accused to establish his plea. The burden is discharged by showing preponderance of probabilities in favour of that plea. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and whether the accused had time to have recourse to public authorities are all relevant factors to be considered.[Ranjitham Versus Basavaraj and Others (2011) 13 SCALE 221]

In State of U.P. v. Ram Swarup and Anr.,, AIR 1974 SC 1570, this Court held:

…the Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a criminal court to find in favour of an accused on a plea not taken up by him and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self-defence and yet the Court may find from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of Private defence or that the offence is mitigated because the right of Private defence has been exceeded….

THE BURDEN OF EVIDENCE

It has to be borne in mind that the obligation to prove an exception lies on an accused but at the same time the onus of proof which the accused has to discharge is not as strict as in the case of the prosecution which had to prove its case beyond doubt. It has also to be borne in the mind that it is very difficult, and often suicidal, for an accused to raise a plea whereby he admits his presence but if the prosecution evidence itself shows that the defence taken by him is probable, the accused is entitled to claim the benefit of that evidence as well. [ Mahender Singh Versus State of Uttaranchal JT 2011 (10) SC 268 : (2011) 9 SCALE 520]

ROLE OF THE APPEAL COURT IN CASE OF APPEAL AGAINST ACQUITTAL 

Supreme  Court in Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra, JT 2010 (12) SC 287, considered various aspects of dealing with a case of acquittal and after placing reliance upon earlier judgments of this Court particularly in Balak Ram and Anr. v. State of U.P., AIR 1974 SC 2165; Budh Singh and Ors. v. State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his L.Rs. and Ors.,, AIR 2008 SC 2066; Arulvelu and Anr. v. State, (2009) 10 SCC 206; and Babu v. State of Kerala (2010) 9 SCC 189, held that:

22. It is a well-established principle of law, consistently re-iterated and followed by this Court is that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.

23. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration.

The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court’s acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.

24. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence’, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.

Thus, unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal.

Firearms used for defence

For inviting conviction under Section 27 of the Arms Act, it has to be proved that the fire arm has been used in contravention of Section 5 or Section 7 of the Arms Act. Since it was a licensed gun, there was no question of Section 7 coming in. Insofar as Section 5 is concerned, we do not think that an act on the part of the accused in firing in the air to scare the aggressors would come within the mischief of Section 5(1) of the Arms Act. Therefore, the appellant is liable to be acquitted even of the offence under Section 27 of the Arms Act.[Deomuni Sharma Appellant Versus State of Jharkhand AIR 2009 SC 2731]