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Monday, January 18, 2010


Dear (s)

You have seen this in many movies – a good looking girl walking in isolated road – an evil looking guy jumps out from behind. Some close up shots, girl running, villain chasing – suddenly she jabs him in the eyes or kicks at some sensitive place. The guy squirms and she leaps and run for safety. An act of self – defence - ala counter measure of defending oneself, which is legally justified. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order.

In a recent judgment, the Apex Court dwelt at length on this in a Criminal Appeal stating that the law does not require a law -abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. Nothing is more degrading to the human spirit than to run away in the face of danger, said a Bench comprising Justices Dalveer Bhandari and A K Ganguly. It laid down a 10-point guideline on right to self-defence, under which a person cannot be accused of committing a crime even if he inflicted mortal wounds on the aggressor. Ofcourse, this should not be used as a tool to settle scores or enmity. Neither it the use of force excess that what is warranted to avert imminent danger to life and property approved.

A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.

Here are some excerpts of a decision in Criminal Appeal no. 1057 of 2002; Darshan Singh being the Appellant and State of Punjab being a respondent pronounced by Dalveer Bhandari and AK Ganguly. The appeal had been made against order of Punjab & Haryana High Court.

Darshan Singh and Bakhtawar Singh were acquitted by the Sessions Court, Ludhiana. The said judgment of acquittal was set aside by the High Court of Punjab & Haryana at Chandigarh. Darshan Singh and Bakhtawar Singh filed appeal against the said judgment before this court. During the pendency of this appeal, Bakhtawar Singh died and consequently the appeal filed by him abated.

The dispute had arisen between intimately close family members ; Deceased Gurcharan Singh was the brother of Bakhtawar Singh and uncle of Darshan Singh. The agriculture fields of both brothers, Gurcharan Singh and Bakhtawar Singh were situated adjoining to each other. According to the prosecution, on 15.7.1991 at about 8 a.m. Gurdish Singh, and his father, Gurcharan Singh were irrigating their fields and were also mending its ridges. Darshan Singh and Bakhtawar Singh came there from the side of their fields raising lalkaras and abused the complainant party. Darshan Singh, accused was armed with D.B.B.L. gun and his father Bakhtawar Singh was carrying a Gandasa and they were saying that they would teach a lesson to the complainant party for cutting the ridges.

A Gandasa is a Punjabi implement primarily used in cultivation and farming. It consists of a long stick of wood (roughly the height of its user) with a wide blade attached to one end. It resembles a very large axe, although it is used in a different manner.

According to the further story of the prosecution, Bakhtawar Singh gave a Gandasa blow causing injuries on the chest of Gurcharan Singh. Gurcharan Singh was also having a Gandasa with him and in order to save himself he also caused injury on the head of Bakhtawar Singh. Thereafter, Darshan Singh fired two shots from his licensed gun which hit Gurcharan Singh in the chest and some of the pellets hit Gurdish Singh on his left upper arm and Gurdev Singh, on his left thigh. Gurcharan Singh fell down and died at
the spot. Gurdish Singh and others retraced their steps in
order to save themselves. Both the accused in order to save
themselves ran towards their respective houses. Gurdish Singh,
proceeded to the police station and lodged FIR. The police visited the spot took possession preparing a recovery memo. Gandasa, empty cartridge of 12 bore were found lying near the dead body. Post mortem was done. Darshan Singh and Bakhtawar Singh were arrested; factum of the incident was not been denied by the accused and they claimed right of private defence.

To the prosecution, the motive was dispute regarding partition of land. One year prior to the incident, the village Panchayat had got the dispute compromised by a written agreement. There was a common well situated in the adjoining land. As a result of the
compromise, the well along with a small piece of land attached
to it was given to Gurcharan Singh and the land of common
pathway leading to the well was given to the accused party.
The compromise was not accepted by the accused party and
they wanted repartition of the land attached to the well. This
grievance had led to this unfortunate incident.

Eye witness gave detailed description of the occurrence. The accused pleaded innocence stating that the deceased along with some outsiders came to their field and remarked that they would teach a lesson. The deceased also gave a gandasa blow to Bakthwar Singh on the head. He thought that his father had been killed and he too would be done. Apprehending fear of life, he pulled the trigger.

The trial court concluded that Bakhtawar Singh was injured at the hands of the deceased and the deceased had advanced towards Darshan Singh armed with gandasa and he had no option but to open fire. Upholding the principle of right of private defence the court acquitted the accused.

The Principle of right of Private Defence : Sec 96 & 97 of Indian Penal Code :
"96. Things done in private defence. - Nothing is an offence which is done in the exercise of the right of private defence.
97. Right of private defence of the body and of property. - Every person has a right subject to the restrictions contained in Section 99, to defend--
First.- His own body, and the body of any other
person, against any offence affecting the human
Secondly.- The property, whether moveable or
immoveable, of himself or of any other person,
against any act which is an offence falling under the
definition of theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass."
Section 100 of the Indian Penal Code : When the right of private defence of the body extends to causing death. -- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: --
First. -- Such an assault as may reasonably cause
the apprehension that death will otherwise be the
consequence of such assault;
Secondly. -- Such an assault as may reasonably
cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
Thirdly. -- An assault with the intention of
committing rape;
Fourthly. -- An assault with the intention of
gratifying unnatural lust;
Fifthly. -- An assault with the intention of
kidnapping or abducting;
Sixthly. -- An assault with the intention of
wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that
he will be unable to have recourse to the public
authorities for his release."

Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. First clause of Section 100 applies to cases where there is reasonable apprehension of death while second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event he can go to the extent of causing the latter's death in the exercise of the right of private defence even though the latter may not have inflicted any blow or injury on him.

It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not?

The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by the court there is nothing more  degrading to the human spirit than to run away in face of  danger. The right of private defence is thus designed to serve
a social purpose and deserves to be fostered within the prescribed limits. Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case.

The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.

The Court had held on many occasions that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. 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 right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

The High Court reversed the trial court's judgment of acquittal and convicted the accused.High Court disbelieved the trial court's version that Gurdish Singh and Gurdev Singh did not receive fire arm injuries because no pellet or pellets were recovered from their bodies. The High Court set aside the judgment of the trial court.

The Apex Court on 15th Jan 2010 allowed the appeal and restored the judgment of acquittal of trial court.

With regards
S Sampathkumar

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