The Hindu : National : “Private defence begins the moment threat is imminent”

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“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.”

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