Monday, January 18, 2010

Supreme Court upholds right of self defence

Courtesy_

Dinamani ePaper


Also read the related stories

"Private defence begins the moment threat is imminent"

J. Venkatesan

It can't be construed narrowly in recording conviction: apex court


Person apprehending threat can't be expected to modulate defence with arithmetical exactitude

Where assault is imminent, it is difficult to expect people to maintain composure


New Delhi: Self-defence against criminal assault is a valuable right serving a social purpose and should not be construed narrowly by courts in recording a conviction, the Supreme Court has held.

"In adjudging the question whether more force than was necessary was used in the prevailing circumstances on the spot, it would be inappropriate to adopt tests by detached objectivity which would be so natural in a courtroom, or that which would seem absolutely necessary to a cool bystander," said a Bench consisting of Justices Arijit Pasayat and Mukundakam Sharma.

"The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances."

The Bench gave this ruling while acquitting Gajanand, who was awarded life imprisonment by the trial court and which sentence was confirmed by the Rajasthan High court. The appellant contended that while exercising the right of private defence he dealt two blows to the deceased, who had attacked him.

Writing the judgment, Justice Pasayat said: "In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. A person who is apprehending death or bodily injury cannot weigh in golden scales, on the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons."

The Bench said: "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 he apprehends, where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent.

"Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect a slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering, what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration."

The Bench said: "Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor."

© Copyright 2000 - 2009 The Hindu

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http://www.thehindu.com/2008/08/13/stories/2008081360201400.htm


Also read the related stories

Supreme Court upholds right of self defence

Tannu Sharma

Posted: Wednesday, Jan 30, 2008 at 2333 hrs

NEW DELHI, JANUARY 29: Upholding the right of private defence as a "very valuable right", the Supreme Court has emphasised the need to prove that the act was committed to protect against unlawful force. In this context, the apex court has stated that two parameters which need to be determined are that a person acting in self-defence is normally acting to prevent the commission of a crime, and also that the extent of force used in self-defence was a "reasonable" response not exceeding limits. The SC also reiterated that such right cannot be claimed by an accused, who is the aggressor.

Highlighting that such a right was only meant to ward off the danger of being attacked, the Bench comprising Justices S B Sinha and Dalveer Bhandari spelled out, "The right of private defence is purely preventive and not punitive. This right is available only to ward off the danger of being attacked; the danger must be imminent and very real and it cannot be averted by a counter-attack."

"It can be used only to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention as held by the apex court as recent as in 2005," the Bench said, adding that "test to be applied in such cases is now well established to be the same as for the cases of prevention of crime, that is the force used in self-defence or in defence of another must be reasonable in the circumstances."

Explaining what is reasonable, the court referred to earlier decisions and maintained that the right cannot be used to kill the wrongdoer unless the person concerned has a cause to fear that otherwise death or grievous hurt might ensue.

The Bench set aside the findings of the sessions court and the Rajasthan High Court, saying that the accused pre-determinedly proceeding with lethal weapons and thereafter causing serious injuries, including fatal injuries, could never claim the benefit of the right of self defence. The courts below had concluded that the accused, Kanshi Ram, and others had acted in self-defence although "exceeded" it. This in fact, went against the evidence as blunt arms, lathis and other weapons of offence were recovered from them besides proof of causing fatal injuries to the complainants in a fight on June 13, 1999.

However, the Apex Court rejected the argument of the accused that they were compelled to use force in order to protect their lives and property. They had challenged their conviction for murder and other criminal offences under the IPC, which was upheld by the HC.

Dealing at length with the question as to whether the accused were protected under the right of private defence, it painstakingly referred to Section 96 of the IPC (Things done in Right of Private Defence) besides Section 99, which imposes reasonable restrictions (Acts not to be covered under the Right of Private Defence). Besides these two provisions, the right of private defence is codified in Section 97 to 106 of the IPC.

Agreeing that position of law is "well-settled for over a century" both in England and India, the court said all these sections have to be read together to ascertain whether the accused in a case are entitled to claim the right or not. "Only then we get a comprehensive view of the scope and limitations of that right."

Courtesy_

http://www.indianexpress.com/news/supreme-court-upholds-right-of-self-defence/266827/0


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