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ARGUMEMTS ADVANCED
ISSUE 4.) Whether the Police can be accused of murder?
It is humbly submitted before the Hon’ble Court that the actions of the police were purely out of self-defense. The police had not taken action and shot the four accused, they would have fled and could have caused serious injury to the police and to others. The police had to use their guns as last resort to stop them from fleeing. [4.1] Enforcementof sec 96 IPC [4.2] NO violation of Sec 300 IPC
[4.1] Enforcementof sec 96 IPC
Private defence refers to using illegal actions to protect oneself,
another person, or property or to prevent criminal activity.
According to the Indian Penal Code, “Nothing is an offence which is
committed to exercising the right of private defence.” This means that any harm or injury caused to a person while defending against external force or damage is not considered an offence under the code.
The right of private defence can only be exercised when there is an
imminent danger and state support or assistance is unavailable. To fulfil its fundamental duty, the State has therefore granted its citizens the authority to take the law into their own hands regarding self-defence. It must be borne in mind that the burden of proving an exception is on the accused.
Every person has a right, subject to the restrictions contained in Section 99, to defend- First-His own body, and the body of any other person, against any offence affecting the human body; Secondly-The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.
a full bench of Orissa High court in the case of State of Orissa v. Rabindra
Nath [19]:
It is the responsibility of the State to defend a person’s body and
property. In the same way, it is the duty of every person to take shelter under the machinery of the state. But in case such aid is not available, he has the right of private defence.
Whether or not a person was allowed to use his right of private
defence without the recourse of public authorities depends upon the nature of threat of imminent danger. The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
It is now the duty and responsibility of the court to examine whether the right has been invoked in good faith or not. [4.1.1] ACT DONE IN GOOD FAITH
Section 52 of the Indian Penal Code defines good faith. Without due care and attention, nothing is said to be done or believed to be done in good faith.
“Nothing is an offence which is done by a person who is, or who by reason
of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.”
Section 88 of IPC defines that when there is no intention to cause death by
the does but by any such reason it may cause harm or it may be intentionally caused by the doer knows that this act is likely to cause harm or even death but it has to be done for the benefit of the person and is done in good faith there is no evil intention. Any harm is done by that act will not be considered as an offense.
In the present case, Suneel and Madhav snatched the revolvers from the Constables while they were being taken to the Court, jumped out of the Police Van and fired two rounds in the air. They were also damaging the public property and were threatening the police officers. So police had no other option left and had to shoot down the four accused who otherwise would have fled.
[4.2] NO violation of Sec 300 IPC
According to exception 3 of Sec 300 IPC, When any public servant or any person authorized by the public servant acts for the advancement of justice and exceeds their powers causing a death of person which in bonafide intention believes to be lawful and considered as necessary for the purpose of discharging his duty as a public servant and without ill treatment towards the person whose death is caused. As in the case of Dakhi Singh vs State 1955 CriLJ 905 the court held that the accused as guilty of Culpable Homicide not amounting to murder, as it was a case where the officer though exceeded his legal powers did not have any ill will and committed the offence for the advancement of public justice.
It says that culpable homicide will not amount to murder if it is done with the intention of causing bodily injury, which is sufficient in the ordinary course of nature to cause death. Section 46(2) of the Code of Criminal Procedure; provides a wider power to the person making arrest. It provides that if any person tries to escape arrest, the person making the arrest has power to use all necessary force required for making the arrest. This right is given for the safety and security of the officials and also in the public interest as in case such person is successful in evading arrest, he may commit any other offense of like nature or try to tamper with evidence of the ongoing case that is detrimental to the witnesses of the appellant or the prosecution. Also The Hon'ble High Court of Karjaat held, “The Police had no other option but to shoot the four accused failing to which they would have fled and which would have triggered mass and widespread agitation throughout the Nation and the role of the Police would have been in question. Therefore, the Court finds the act of the Police as an ‘Act of Bravery’ and sudden reflex to counter the situation which arose in front of them.”
As in present case, The police officers although exceeded their legal powers but they were acting with bonafide intention and had to kill them for the advancement of public justice and for the welfare of nation.
