Understanding the nuances of the right to private defence: Criticism of the Bulandshahr trial court conviction

This article discusses the law of right to private defence and the error of the Bulandshahr trial court in convicting a 70-year-old mother who killed a person who attempted to rape her daughter.
Understanding the nuances of the right to private defence: Criticism of the Bulandshahr trial court conviction
Rape

The law does not ask a law-abiding citizen to helplessly suffer a bodily injury or assault and do nothing to save himself/herself or any other person, when confronted with imminent and unlawful aggression.

This article discusses the law of right to private defence and the error in the approach of the trial court in Bulandshahr, Uttar Pradesh in convicting a 70-year-old mother who killed a person who attempted to rape her daughter.

In Chapter IV (Section 96 to 106) of ‘General Exceptions’ of the Indian Penal Code (IPC), the law recognizes and protects the right of a person of self-defence of the body.

The cardinal principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with danger and immediate aid from the State machinery is not readily available, then that individual is entitled to protect himself/herself or his/her property even by using force, if need be [Sikander Singh v. State of Bihar].

Section 96 provides that 'nothing is an offence which is done in the exercise of right of private defence'. Section 97 provides that every person has a right to defend his/her own body or the body of any other person against any offence affecting the human body, though subject to the restrictions contained in Section 99, which limits the right of private defence to the extent of harm caused. In other words, it permits the right of private defence to be exercised without the use of excessive force.

Section 100 read with Section 106 extends the right of private defence to cause death in certain occasions involving apprehension of death, grievous hurt, assault with the intention of committing rape, and others. It is thus clear that a person saving herself or any other person from an offence of rape or attempt to rape, is entitled to use maximum force to stop the offender from committing such a crime, subject of course to certain limitations.

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed. It continues as long as such apprehension of danger to the body continues [S. 102].

These principles have been reiterated in numerous cases decided by the apex court, and the legal position qua statutory sanction for use of this right is well-settled. But unfortunately, the recent decision by the Additional Sessions Judge, Bulandshahr dated October 14, 2021 in the matter of State of Uttar Pradesh v. Kasturi Devi fails to meet any of the parameters repeatedly laid down by the Supreme Court.

It would be apposite to give in brief the facts of the said case. One Kasturi Devi, who is a widowed mother of a 20-year-old young girl, informed the police that at around 12:30 AM, when she and her daughter were sleeping in the verandah of their house, an unknown person illegally entered their house and attempted to rape her daughter. She got up hearing the alarm raised by her daughter and found that the said person was attempting to rape her daughter. In an attempt to stop him from committing the offence, she attacked the said person with an axe lying close by, giving repeated blows due to which he died on the spot.

Th next day, another written complaint was made by some other person to the effect that the said assailant was murdered by Kasturi Devi and her daughter. A case under Section 302 IPC (murder) was lodged on the said complaints. The prosecution also brought in the angle of an affair between the deceased assailant and daughter of Kasturi Devi, but miserably failed to establish the same and it was disbelieved by the trial court. The prosecution also failed to establish any motive and case beyond doubt against the accused for an offence punishable under Section 302.

Thus, the confession of Kasturi Devi that she killed the person who was attempting rape on her daughter, was the whole fulcrum of the prosecution case. The trial court, while placing reliance on the confession of Kasturi Devi, denied her the benefit of the right to private defence of her daughter by disbelieving her story regarding the rape attempt by the deceased on her daughter. This conclusion was arrived at on the ground that Kasturi Devi failed to show any evidence of the attempt to commit rape, that the clothes of both the deceased and the daughter were intact, there was no injury on the person of the daughter, that the sole testimony of the daughter claiming to be a victim of a rape attempt cannot be relied upon for want of any corroborative evidence, and that the force used was excessive. After 11 years of prolonged trial and incarceration, the trial court convicted Kasturi Devi under Section 302 IPC and sentenced her to life imprisonment.

The approach of the trial court is erroneous on the following counts:

1. Burden on prosecution to establish its case beyond reasonable doubt

The legal position is well-settled that the prosecution has to establish its case beyond reasonable doubt and this burden is neither neutralized nor shifted because the accused has pleaded the right of private defence. The prosecution has a non-negotiable duty in law to discharge its initial traditional burden to establish the complicity of the accused and until it does so, the question cannot arise whether the accused has acted in self defence [State of Uttar Pradesh v. Ram Swarup, (1974); Sikander Singh v. State of Bihar; Salim Zia v. State of Uttar Pradesh].

2. It is sufficient for the accused to show preponderance of probabilities in favour of the plea of private defence

It is a settled principle of law that though the burden of establishing the plea of self-defence is on the accused, it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused need not to establish the plea of self-defence to the hilt and rather the burden of the accused is discharged on showing the preponderance of probabilities in favour of the plea of private defence [Laxman Singh v. Poonam Singh; Partap v. The State of Uttar Pradesh; Munshi Ram and Ors. v. Delhi Administration; James Martin vs. State of Kerala].

In the Bulandshahr case, Kasturi Devi discharged this burden by showing a preponderance of probabilities, which was supported by statement of her daughter, the victim herself.

3. Reasonable apprehension of danger to body is sufficient to exercise the right of private defence

The trial court disbelieved the plea of right of private defence by holding that the accused failed to bring on record any evidence to establish any attempt to commit rape. This entire approach was erroneous and contrary to the settled legal position and the statutory requirement of Section 102 IPC that a right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises. It is not necessary for an actual act to take place [Vidhya Singh v. State of Madhya Pradesh; Deo Narain v. State of UP; State of Madhya Pradesh v Ramesh; Rizan v. State of Chhattisgarh; Sekar v. State; Shriram v. State of Madhya Pradesh].

4. Act of private defence cannot be weighed on a golden scale

Each individual would react or respond to a situation or threat perception in a different manner. This always depends upon a host of factors, like the prevailing circumstances; the individual’s mental and emotional status at the relevant time; nature of the assault; risk involved, etc. The means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself/herself cannot be weighed on golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. [Sikander Singh v. State of Bihar; Dharam v. State of Haryana; Darshan Singh v State of Punjab].

A person apprehending death or bodily injury cannot weigh on golden scales, the number of injuries required to disarm the assailants. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage need to be given to and a hyper-technical approach has to be avoided in considering what happens at the spur of the moment, keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration [Buta Singh v. State of Punjab].

5. Such a valuable right cannot be narrowly construed

The right to self-defence should not be narrowly construed because it is a very valuable right and has a social purpose [Vidhya Singh v. State of Madhya Pradesh; State of Gujarat v. Bai Fatima]. Such situations have to be judged from the subjective point of view of the accused concerned who is confronted with such a situation on the spot and cannot be subjected to any microscopic and pedantic scrutiny [Wassan Singh v. State of Punjab] and is liable to be upheld even in absence of any injury on the accused [Sat Narain v. State of Haryana]. The number of injuries is not always a safe criterion for determining who the aggressor was [V Subramani v. State of TN]. The trial court in Kasturi Devi was wrong on this count as well. In Deo Narain v. State of UP, the accused attacked and killed with a spear his assailant who raised his lathi to hit him. The Supreme Court accepted his plea of private defence.

6. Sole testimony of the prosecutrix in rape cases can be relied upon:

Conviction can be recorded on the sole testimony of the prosecutrix [State of Himachal Pradesh v. Raghubir Singh]. It requires no corroboration, if found to be worthy of credence and reliable [State of Punjab v. Gurmit Singh]. It is also a clear position of law that the right of private defence is available, be it to protect one's own body or someone else's body [Yeshwant Rao v. State of Madhya Pradesh].

Darshan Singh v. State of Punjab lays down broad principles on the right of private defence. It was held that it is enough if the accused apprehended that such an offence is contemplated and is likely to be committed if the right of private defence is not exercised. It is unrealistic to expect a person under assault to modulate his/her defence step by step with any arithmetical exactitude and a person who is in imminent and reasonable danger of losing his/her life or limb, may in exercise of self-defence inflict any harm even extending to death on her/his assailant either, when the assault is attempted or directly threatened.

On the findings of the trial court that the prosecution failed to establish any mens rea, and miserably failed to establish any relation between the deceased and the young daughter of Kasturi Devi, the intention to kill certainly cannot be assumed against her. A mother losing her self-control seeing someone attempting to rape her daughter cannot in law be expected to judge the force she uses with mathematical exactitude in order to deter the assailant. She would rather ensure that the assailant is rendered completely incapable to cause any further harm to her daughter and herself.

Otherwise also, even if the plea of private defence is disbelieved, she could at the best be convicted under Part II of Section 304 IPC for culpable homicide not amounting to murder, with no intention to cause death. Since the widow mother had already suffered a prolonged trial for 10 years and incarceration, she should have been let go with the sentence undergone. Her conviction u/s 302 IPC is absolutely unjust and the reasoning used in arriving at the conclusion of holding her guilty is hugely erroneous and contrary to settled legal principles.

Shobha Gupta is a practicing advocate at the Supreme Court.

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