EX.CT. MAHADEV vs. THE DIRECTOR GENERAL BORDER SECURITY FORCE

Civil Appeal No.2606 of 2012 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2606 OF 2012 EX. CT. MAHADEV .… APPELLANT Versus THE DIRECTOR GENERAL, BOARDER SECURITY FORCE & ORS. ….. RESPONDENTS J U D G M E N T HIMA KOHLI, J. rd 1. The appellant is aggrieved by the judgement dated 3 March, 2011 passed by the Division Bench of the High Court of Delhi dismissing a writ petition filed by him, th registered as WP(C)No.6709/2008, wherein he had challenged the order dated 19 March, 2008 passed by the respondent No.4 herein convicting him to life imprisonment 1 for an offence committed under Section 46 of the Border Security Force Act, 1968 , that 2 is to say for murder punishable under Section 302 of the Indian Penal Code, 1860 . By the impugned order, the Division Bench has upheld the order passed by the respondent Signature Not Verified No.2 - Appellate Authority, whereby the statutory appeal filed by the appellant was Digitally signed by GULSHAN KUMAR ARORA Date: 2022.06.14 14:50:15 IST Reason: 1 for short ‘BSF Act’ 2 for short ‘IPC’ Page 1 of 20 Civil Appeal No.2606 of 2012 th dismissed and the order dated 10 March, 2007 passed by the General Security Force 3 Court was upheld . 2. The brief facts of the case are that the appellant, who was serving in the BSF, was tried by the GSFC in the year 2007, for committing an offence under Section 46 of the BSF Act, that is to say murder punishable under Section 302 of the IPC and the charges framed against him were as follows : "The accused No.89131037, Const. Mahadev, of 131 Bn. BSF is charged with: BSF ACT COMMITTING A CIVIL OFFENCE, THAT IS TO SAY SEC.46 MURDER, PUNISHABLE U/S 302 IPC In that he, In a rubber garden located between BP No.2007/S-3 and BP No.2008/MP in AOR of BOP Bamutia, on 05/06/1004 at about 08:15 hrs. by firing shots from his INSAS Rifle bearing Butt No.503, Body No.16397/159 caused the death of a civilian namely Nandan Deb S/o Sh. Atinder Dev R/o Village- Rangotia, PS-Sidhal, Distt.-West Tripura and thereby committed murder." 3. On the appellant pleading not guilty to the charge framed against him, the prosecution proceeded to examine seventeen witnesses. The appellant did not produce any witness. However, he made an oral statement in his defence. The plea of private th defence taken by the appellant was rejected and on 10 March, 2007, the GSFC held him guilty of the charge and sentenced him to suffer imprisonment for life besides 3 for short ‘GSFC’ Page 2 of 20 Civil Appeal No.2606 of 2012 th dismissing him from service. Vide order dated 4 April, 2007, the Convening Officer confirmed the findings and the sentence imposed on the appellant. Aggrieved by the said order, the appellant preferred a statutory petition, which was dismissed by the th respondent No.1 – Union of India, vide order dated 19 March, 2008 that has been upheld by the High Court. 4. For arriving at the aforesaid conclusion, the High Court has primarily relied on the testimony of Dr. Ranjit Kumar Das (PW-10), who had conducted the postmortem on the body of the deceased and deposed that he had died due to firearm injuries and two bullets had pierced his body. It was noticed that PW-10 had deposed that having regard to the nature and place of the injuries, the position of the firer as against that of the deceased was such that the one who would have fired the shot, must have been on an elevated position compared to the victim since the direction of the bullets were from above the chest, going downwards and backward. Going by the said testimony read along with the testimony of SI Shanti Bhushan Bhuiya (PW-13), who had deposed that when he saw the dead body, both the legs were in a folded position, the High Court arrived at the conclusion that the appellant had made the deceased to crouch down and thereafter, had fired two shots at him. Page 3 of 20 Civil Appeal No.2606 of 2012 5. Mr. Lalit Kumar, learned counsel for the appellant argued that the High Court has erred in concurring with the findings of the GSFC and discarding the defence taken by the appellant that he was compelled to exercise his right of private defence to save his life when suddenly confronted with intruders who were armed with weapons and had ‘gheraoed’ him. He alluded to the topography of the Rubber plantation where the incident had taken place, which was admittedly uneven with depressions and undulations, to urge that merely because the deceased was found with his legs in a folded position, could not be a ground to indict the appellant having regard to the fact that even as per the version of CT H. Vijay Kumar (PW-1), the eye-witness who was patrolling in the area along with the appellant, the latter was positioned at a higher level vis-à-vis the deceased and therefore, it was but natural that on his firing from his rifle, the bullets would have hit the deceased on the upper part of his body as he was positioned at a lower level. It is in this manner that learned counsel for the appellant has sought to explain the path of the bullets that had pierced the body of the deceased and indicated that the shots were fired by the appellant taking a downward angle and not face on face. 6. Learned counsel for the appellant also referred to the testimony of Sapan Das (PW-2) and other prosecution witnesses to submit that villagers in the area being close to the border of Bangladesh, used to regularly indulge in smuggling activities and even Page 4 of 20 Civil Appeal No.2606 of 2012 the deceased used to do so. He pointed out that this fact had not only been deposed by PW-1, but also by SI (M) Suresh Kumar Dagar (PW-17), who during his cross- examination, had stated in so many words that since the deployment of 131 Battalion, BSF and prior to the incident in question, trans-border criminals had attacked BSF personnel seven times and most of the times, they had to use force by opening fire in self-defence and the defence of property. In fact, the deceased had been apprehended for indulging in smuggling activities and his name features in the list of smugglers maintained by the BSF. He also adverted to the fact that currency worth 24,700 Bangladeshi Takas was recovered from the shirt pocket of the deceased along with a ‘Dah’ that was found lying at the spot next his body. The point sought to be made was that in the above backdrop, the High Court ought not to have discarded the testimony of PW-1 and PW-17 to arrive at a conclusion that this was a case of cold-blooded murder committed by the appellant whereas he had acted in the heat of the moment, purely in his self defence. 7. Per contra , Ms. Aishwarya Bhati, learned Additional Solicitor General, appearing for the respondents – Union of India, has stoutly defended the findings returned by the GSFC and upheld the High Court. She submitted that the High Court cannot be faulted for disbelieving the testimony of PW-1, an eye-witness to the incident who was on duty at the Rubber plantation along with the appellant on the fateful day. It is her contention Page 5 of 20 Civil Appeal No.2606 of 2012 that the findings of the GSFC are sound and reliance has rightly been placed on the testimonies of the local villagers, namely, Sapan Das (PW-2), another witness by the name of Sapan Das (PW-3), Tapan Das (PW-4) and Sunil Das (PW-5), who had stated that the appellant had summoned the deceased and then shot at him twice without any provocation. She submitted that the testimony of the doctor (PW-10) was a clincher and left no manner of doubt that the appellant had made the deceased to kneel down and thereafter fired two shots directly at him, causing his death. 8. We have carefully considered the arguments advanced by learned counsel for the parties and perused the records, particularly, the testimony of the material witnesses and the statement of defence made by the appellant. 9. The singular question that requires to be examined in the present appeal is whether the appellant was entitled to exercise the right of private defence in the given facts and circumstances of the case. 10. We may commence the discussion by first observing that the instinct of self- preservation is embedded in the DNA of every person. The doctrine of the right to private defence is founded on the very same instinct of self-preservation that has been duly enshrined in the criminal law. The provisions that deal with the right of private defence have been enumerated in Sections 96 to 106 of the IPC and fall under Chapter Page 6 of 20 Civil Appeal No.2606 of 2012 IV that deals with General Exceptions. Section 96 IPC states that nothing is an offence which is done in the exercise of the right of private defence. Whether a person has legitimately acted in exercise of the right of defence given a particular set of facts and circumstances, would depend on the nuance of each case. For arriving at any conclusion, the Court would be required to examine all the surrounding circumstances. If the Court finds that the circumstances did warrant a person to exercise the right of private defence, then such a plea can be considered. Section 97 IPC states that every person has a right of defence of person as well as of property. Section 99 IPC refers to the acts against which there is no right of private defence and the extent to which the said right can be exercised. On a perusal of the aforesaid provision, it is apparent that the rights vested under Sections 96 to 98 and 100 to 106 IPC are broadly governed by Section 99 IPC. 11. Section 100 IPC throws light on the circumstances in which the right of private defence of body can be stretched to the extent of voluntarily causing death. To claim such a right, the accused must be able to demonstrate that the circumstances were such that there existed a reasonable ground to apprehend that he would suffer grievous hurt that would even cause death. The necessity of averting an impending danger is the core criteria for exercising such a right. Both Sections 100 and 101 IPC define the circumstances in which the right of private defence of the body extends to causing Page 7 of 20 Civil Appeal No.2606 of 2012

4 (2003) 2 SCC 661 5 (2005) 9 SCC 705 Page 8 of 20 Civil Appeal No.2606 of 2012

6 (2004) 2 SCC 203 Page 9 of 20 Civil Appeal No.2606 of 2012

7 AIR 1968 SC 702 8 (1975) 2 SCC 7 9 (1977) 3 SCC 562] 10 (1979) 3 SCC 30 11 (1979) 2 SCC 648 12 (2007) 15 SCC 241 Page 10 of 20 Civil Appeal No.2606 of 2012

13 (1991) 2 SCC 612 Page 11 of 20 Civil Appeal No.2606 of 2012

14 (2008) 16 SCC 657 Page 12 of 20 Civil Appeal No.2606 of 2012

Page 13 of 20 Civil Appeal No.2606 of 2012 16 20. In Raj Singh v. State of Haryana and Others , supplementing the view of Justice R. Banumathi, who had authored the decision on behalf of a three Judges Bench, Justice T.S. Thakur had the following to state on the application of the provisions of Exception 2 to Section 300 IPC where an accused sets up the right to private defence :

16 (2015) 6 SCC 268 Page 14 of 20 Civil Appeal No.2606 of 2012

21. To sum up, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. The Court’s assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up Page 15 of 20 Civil Appeal No.2606 of 2012 resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice. 22. Being mindful of the afore-stated parameters, we may examine the plea of self- defence raised by the appellant in the attending facts and circumstances of the case. The factum of rampant smuggling in the area has not been disputed by either side. The records reveal that border fencing in the area in question had been erected just a few months before the incident had taken place. Prior to that, many villagers used to freely indulge in smuggling activities by crossing over to the Bangladesh side and vice versa. A couple of months after the fencing had been fixed along the International border with Bangladesh, there was an incident where smugglers had assaulted one of the members of the Battalion when he was trying to prevent them from crossing the border. That the deceased used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF, is also a matter of record. 23. Viewed in the above setting, we may proceed to examine the statement by way of defence made by the appellant which has been extracted at some length in the impugned judgment. He has stated at the relevant time, that he was posted at BOP Page 16 of 20 Civil Appeal No.2606 of 2012 Bamutia, Tripura, which is adjoining to the border of Bangladesh. While on patrolling th duty in the early hours of 5 June, 2004, he admitted to have fired from his rifle at one Nandan Deb, who died as a result of the firearm injuries. The version of the appellant was that when he was patrolling along with CT H. Vijay Kumar (PW-1), in the Rubber plantation, an area with depressions and undulations on the ground surface, he had noticed 6-7 persons crossing over from Bangladesh by cutting across the International border. They had tried to ‘gherao’ him and PW-1. They were armed with weapons like ‘'Bhala', 'Dah' and ‘Lathi’. Seeing himself cornered, the appellant started to retreat. But the intruders kept closing him and were in or at a distance of ten yards. Faced with such a precarious situation where the appellant gathered an impression that the intruders were going to attack him any minute, fearing for his life, the appellant fired two rounds in the air. This did not deter the intruders who kept on inching closer to the appellant. When one of the intruders, namely, Nandan Deb came as close as 3-4 yards from him and tried to attack him by raising his ‘Dah’, apprehending an imminent and perceptible threat to his life, the appellant fired at him due to which he fell on the ground. While, the other miscreants fled away to Bangladesh, Nandan Deb collapsed at the spot and was declared dead. 24. Having scanned the testimony of the prosecution witnesses, we are of the opinion that the testimony of CT H Vijay Kumar (PW-1) cannot be completely discarded, Page 17 of 20 Civil Appeal No.2606 of 2012 as done by the GSFC. He has deposed that when he and the appellant were patrolling in the area on the relevant date, they had seen three persons crossing the international border from Bangladesh side at 8.00 AM. On noticing the intruders, they had challenged them to stop at a distance of 50 meters. But the intruders ran away in the direction of Bangladesh. At this, PW-1 and the appellant had turned back and while continuing with their patrolling duty, they saw 6-7 persons rushing towards them from the side of Bangladesh, carrying weapons like ‘Dah’, ‘Bhala’ and ‘Lathi’ in their hands. They managed to surround the appellant, who was closer to them. Apprehending an imminent and real threat to his life, the appellant had fired from his rifle at the intruders in self defence and the deceased who was a part of the group, sustained bullet injuries and had fallen on the ground. The trajectory of the bullets indicates that the firing took place from a higher position vis-à-vis the deceased. But that does not necessarily mean that the appellant had summoned the deceased and made him crouch on the ground before shooting at him, as assumed by the High Court. The uneven terrain of the Rubber plantation with slopes and undulating surface would offer a plausible alternate explanation for the trajectory of the bullets fired by the appellant at the deceased. If the former was positioned at an elevated spot, then it was inevitable that the bullets would have hit the chest of the deceased who was down below the slope, and made a path Page 18 of 20 Civil Appeal No.2606 of 2012 downwards in the body. Thus the preponderance of probabilities would swing in favour of the plea of self defence taken by the appellant. 25. On a broad conspectus of the events as they had unfolded, we are of the opinion that the right of private self defence would be available to the appellant keeping in mind preponderance of probabilities that leans in favour of the appellant. In a fact situation where he was suddenly confronted by a group of intruders, who had come menacingly close to him, were armed with weapons and ready to launch an assault on him, he was left with no other option but to save his life by firing at them from his rifle and in the process two of the shots had pierced through the deceased, causing his death. We are therefore of the opinion that the appellant ought not to have been convicted for having committed the murder of the deceased. Rather, the offence made out is of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC, thereby attracting the provisions of Section 304 IPC. 26. In view of the aforesaid discussion, the appeal is partly allowed and the impugned judgment is modified to the extent that the appellant is held guilty for the offence of culpable homicide, not amounting to murder as contemplated under Exception 2 to Section 300 IPC. Records reveal that by the time the appellant was th granted bail by this Court on 4 July, 2016, he had already suffered incarceration for a Page 19 of 20 Civil Appeal No.2606 of 2012 period of over eleven years, which given the peculiar facts and circumstances of the present case, is considered sufficient punishment for the offence. The appellant is accordingly set free for the period already undergone and the bail bonds stand discharged. 27. The appeal is disposed of on the above terms. ................................. J. [B.R. GAVAI] ................................... J. [HIMA KOHLI] NEW DELHI, JUNE 14 , 2022 Page 20 of 20