<p>The Supreme Court on Tuesday said the right of private defence is necessarily a defensive right, available only when the circumstances justified the action done in good faith and without malice. </p>.<p>The top court allowed right of private defence to a BSF constable and converted charges of murder levelled against him to culpable homicide for shooting down a smuggler intruding at Bangladesh border in Tripura.</p>.<p>A bench of Justices B R Gavai and Hima Kohli set free constable Mahadev, who had already served 11 years of incarceration after being held guilty of the offence of murder.</p>.<p>In the case, while on patrolling duty on June 5, 2004 at Bamutia, Tripura, adjoining to the border of Bangladesh, the appellant admitted to have fired from his rifle at one Nandan Deb, who died as a result of the injuries.</p>.<p>The court said the right of private self defence would be available to the appellant keeping in mind preponderance of probabilities that leans in his favour.</p>.<p>"The right of private defence 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," the bench said.</p>.<p>In a situation where he (the appellant) was suddenly confronted by a group of intruders, who had come menacingly close to him, and 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, the court pointed out. </p>.<p>"We are therefore of the opinion that the appellant ought not to have been convicted for having committed the murder of the deceased," the bench said.</p>.<p>The court also said the deceased used to indulge in smuggling activities and his name was mentioned in such a list maintained by the BSF, is also a matter of record.</p>.<p>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, the bench noted.</p>.<p>It partly allowed an appeal against the Delhi High Court's judgement which had dismissed the petitioner's plea against his conviction for murder and sentence of life imprisonment.</p>
<p>The Supreme Court on Tuesday said the right of private defence is necessarily a defensive right, available only when the circumstances justified the action done in good faith and without malice. </p>.<p>The top court allowed right of private defence to a BSF constable and converted charges of murder levelled against him to culpable homicide for shooting down a smuggler intruding at Bangladesh border in Tripura.</p>.<p>A bench of Justices B R Gavai and Hima Kohli set free constable Mahadev, who had already served 11 years of incarceration after being held guilty of the offence of murder.</p>.<p>In the case, while on patrolling duty on June 5, 2004 at Bamutia, Tripura, adjoining to the border of Bangladesh, the appellant admitted to have fired from his rifle at one Nandan Deb, who died as a result of the injuries.</p>.<p>The court said the right of private self defence would be available to the appellant keeping in mind preponderance of probabilities that leans in his favour.</p>.<p>"The right of private defence 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," the bench said.</p>.<p>In a situation where he (the appellant) was suddenly confronted by a group of intruders, who had come menacingly close to him, and 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, the court pointed out. </p>.<p>"We are therefore of the opinion that the appellant ought not to have been convicted for having committed the murder of the deceased," the bench said.</p>.<p>The court also said the deceased used to indulge in smuggling activities and his name was mentioned in such a list maintained by the BSF, is also a matter of record.</p>.<p>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, the bench noted.</p>.<p>It partly allowed an appeal against the Delhi High Court's judgement which had dismissed the petitioner's plea against his conviction for murder and sentence of life imprisonment.</p>
