The Hindu : National : “Don’t construe self-defence right narrowly”

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Wednesday, Jun 27, 2007
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“Don’t construe self-defence right narrowly”

Legal Correspondent

It serves a social purpose: apex court

“It is often difficult to preserve composure”
Judge situation from the viewpoint of accused

NEW DELHI: The right of self-defence is very valuable one available to the accused in a criminal case, serves a social purpose and should not be construed narrowly, the Supreme Court has held.

“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. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered,” said a Bench of Justices Arijit Pasayat and D.K. Jain.

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 apprehended to him whether 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.”

Case in question

The Bench gave the ruling while dismissing appeals filed by the accused, Krishna and Kaira, challenging the life imprisonment awarded to them by the trial court and confirmed by the Allahabad High Court for causing the death of Chunua Chamar in a quarrel at a village in Banda district of Uttar Pradesh. Both the courts had rejected their plea of self-defence and convicted them.

The Bench was of the view that such situations had to be pragmatically viewed and not with high-powered spectacles or microscopes to detect even a 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.

The Judges further said: “But if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived.”

Writing the judgment Mr. Justice Pasayat said, “Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to 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 court room, or that which would seem absolutely necessary to a perfectly cool bystander.”

The Bench made it clear that the accused need not prove the existence of the right of private defence beyond reasonable doubt.

“It is enough for him to show as in a civil case that the preponderance or probabilities is in favour of his plea. The number of injuries is not always a safe criterion for determining who the aggressor was,” the Bench said.

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