The Hindu : New Delhi News : Armed aggressor cannot claim right to self-defence

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Armed aggressor cannot claim right to self-defence

J. Venkatesan

New Delhi: In a “free-for-all” between two groups, a heavily armed aggressor cannot claim the “right of private defence” under the Indian Penal Code to justify assault on his rival, the Supreme Court has held. “To put it pithily, the right of private defence is a defence right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger, not of self-creation. Necessity must be present, real or apparent,” said a Bench consisting of Justices S.B. Sinha and H.S. Bedi.

Writing the judgment, Justice Sinha said: “The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. To claim a right of private defence extending to voluntary causing of death, the accused must show that were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.”

No golden scales

The Bench said: “The means and the force a threatened person adopts on the spur of the moment to ward off danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine whether the means and force adopted by the threatened person was proper or not.”

The answer to such a question “depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.”

In the instant case, in a fight during a panchayat election on October 25, 1984 at Kantharia village in Madhya Pradesh, Prem Singh died of bullet injury and 21others from the rival groups sustained injuries.

Bhanwar Singh, who drove a tractor and 17 others were charged for various offences including murder. Three of the accused died during the proceedings and the trial court awarded life imprisonment to the others. The Madhya Pradesh High Court confirmed the sentence and the present appeals are directed against that judgment.

The appellants took the stand of self-defence and pointed out that three of them sustained injuries. The apex court rejected this contention. While acquitting Bhanwar Singh, the Bench awarded 10-year imprisonment to two accused, seven-year jail to two others and three-year sentence to the remaining accused.

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