"The burden of proving self-defence is always on the accused but it is not as onerous as the one which lies with the prosecution. Such burden can be discharged by probablising the defence. The accused may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross examination of prosecution witness or by adducing defence evidence," a bench of Justices J B Pardiwala and R Mahadevan said.

 

The bench emphasised that the court presumes the absence of circumstances that would justify a defence claim, but this presumption can be rebutted by the accused.

 

"Courts have consistently upheld the principle that even if private-defence is not formally pleaded, it may still be considered based on the material available on record, with the accused bearing the responsibility to substantiate it," the bench said.

 

The court pointed out that Section 96 of the IPC provides that nothing is an offence, which is done in the exercise of the right of private defence. Section 97 of the IPC further provides that every person has a right of private defence to defend his own body and the property, subject to the restrictions contained in Section 99.

 

It noted Section 99 of the IPC provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by a public servant, or by the direction of a public servant, acting in good under colour of his office, though that act may not be strictly justifiable by law. This provision further provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

 

"It is a settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case. The court, while deciding this question of fact, is to take into consideration various facts, like the weapon used, the manner and nature of assault, the motive and other circumstances," the bench said.

 

Referring to Exception 2 to Section 300 IPC, the bench said existence of good faith is a must before the accused claims benefit of this exception.

 

"While acting in good faith, if the accused has exceeded the right of self-defence and caused death of a person without pre-meditation and further he had no intention to causing more harm than was necessary for the purpose of the defence although in fact more harm was caused, yet the benefit of Exception 2 to Section 300 may be available if the accused was not the aggressor," the bench said.

 

The court pointed out that the presence of good faith as given in Section 52 IPC refers to actions done in the absence of due care and attention.

 

"Another essential for invoking Exception 2 is the lack of premeditation. Such pre-meditation may be established by direct or circumstantial evidence, such as previous threats, expression of ill feelings, acts of preparation to kill, etc," the bench said.

 

Court explained the legal provisions while dismissing an appeal filed by Ratheeshkumar alias Babu against the Kerala High Court's judgment of January 5, 2018, which rejected his plea against the Palakkad court's judgment holding him guilty in a case of murder and awarding him sentence of life term.

 

"In the case of private defense, the actions taken must be strictly preventive, aimed at averting the danger, rather than punitive or retributive. The continued assault after the initial injury demonstrates a disproportionate use of force, which is inconsistent with the principle of self-defence. Even if we were to assume that the initial actions were taken in self-defense, although it is not the case, the subsequent assault reveals a shift in the accused’s intention from protecting himself and his property to inflicting harm and wrecking vengeance upon the deceased. This shift indicates that the actions were no longer defensive in nature but became an act of aggression," the bench said.

 

In the present case, the court said, given the facts presented, it was difficult to establish the defence of private defence.

 

"The circumstances do not support a reasonable apprehension of imminent danger that would justify the actions of the accused, making it challenging to sustain the claim of self defense," the bench said.

 

The court said it may be that the incident occurred at the spur of a moment and in the heat of passion.

 

"But we should not be unmindful of the fact that the appellant herein had a knife with him whereas the deceased had nothing with him. He was absolutely helpless at the time when he was attacked. Therefore, this amounts to taking undue advantage or acting in a cruel or unusual manner," the bench said.

 

The appellant, an agriculturalist, was alleged to have killed the deceased by inflicting stab injuries, following an altercation over raising a fence. The trial court acquitted his father, a co-accused but held him guilty of offence under Section 302 of the IPC. The Kerala High Court also dismissed his plea.

 

His counsel submitted the altercation took place between his father and the deceased and he arrived at the spot on a call by the father. Having realised the seriousness of the situation, he was left with no other option but to take out a knife and stab the deceased to death. He further submitted that there was an imminent threat to his property. He was trying to protect his property and exercised his right of private defence.

 

The counsel also claimed the act was not pre-meditated or pre-planned. Everything happened in a spur of a moment and that too in the heat of passion.

 

"Having regard to the nature of the oral evidence on record more particularly, the evidence of the eye-witnesses and the genesis of the occurrence, it is difficult for us to take the view that the case falls within Exception 2 of Section 100 of the IPC. It is true that the High Court in its line of reasoning has given an indication that the appellant herein was trying to act in exercise of his right of private defence but in the process, he exceeded in the same. To this extent also, we are not in agreement with the High Court," the bench said.

 

After going through the evidence, the court opined, in the given circumstances, it was difficult to discern any reasonable apprehension of imminent danger on the part of the accused.

 

"The defense argument claiming protection of property appears unfounded in this context, as the facts do not support any imminent threat to the appellant’s property," the bench said.

 

In the instance, the court said, inflicting a murderous assault with a deadly weapon upon the unarmed deceased and subsequently continuing to beat him, even when the deceased fell to the ground, provided a clear indication that the accused had not acted in good faith and had the intention of causing more harm than was necessary.

 

Having regard to the nature of the oral evidence on record more particularly, the evidence of the eye-witnesses and the genesis of the occurrence, it was difficult for us to take the view that the case falls within Exception 2 of Section 100 of the IPC, the bench said.

 

The court pointed out the appellant-convict had failed to clarify as why he and his father vehemently opposed putting up a fence by the deceased in his own land.

 

The court held that no case was made out for interference.

 

The bench ordered the appellant to surrender within four weeks. As the appellant underwent nine years of imprisonment, the court said, it would be open for him to make a representation for remission in accordance with the policy.