Learned Additional Solicitor General, Ms. Aishwarya Bhati submitted, testimony of Doctor-PW10 was a clincher and left no manner of doubt: EX. CT. Mahadev had made Nandan Deb kneel down and thereafter fired two shots directly at him.
Doctrine of Right to Private Defence is founded on instinct of self-preservation. Buta Singh v. State of Punjab, (1991) 2 SCC 612 emphasized, a person who is apprehending death or bodily injury, cannot weigh, in golden scales, number of injuries required to disarm assailants. But, extent of violence used for defending should be in proportion to injury apprehended.
It is a matter of record, Nandan Deb used to indulge in smuggling activities. CT. H Vijay Kumar-PW1’s testimony cannot be completely discarded. Rubber Plantations with an uneven terrain, slopes and undulating surface would offer a plausible alternate explanation for trajectory of bullets fired. Thus, preponderance of probabilities would swing in favor of Plea of Self-Defence.
In a fact situation where Mahadev was suddenly confronted by a group of intruders, who were menacingly close-armed-ready to launch an assault, he was left with no other option but to save his life by firing at them from his rifle. In process, two shots had pierced through Nandan Deb, causing his death. Mahadev ought not to have been convicted for having committed murder. Rather, offence made out is of culpable homicide not amounting to murder.
– Hon’ble Justice Hima Kohli, EX. CT. Mahadev v. Director General, Border Security Force, [Civil Appeal No. 2606 of 2012].