Zeitschrift für Zivil- und Rechtswissenschaften

Abstrakt

Private Defence: A Look at Definitional Aspects and Burden of Proof

Divyam Nandrajog

This paper examines the contemporary definitional elements of “reasonable apprehension” and the role executed by the Supreme Court of India while exercising its criminal jurisdiction in matters concerning private defence of the body under the criminal laws of India. While looking at the totality of factors, this paper makes an assessment of the guidelines which courts have adopted in their pursuit of a fair trial, such as avoiding a microscopic scrutiny of the conduct of the accused and substituting its own hindsight for the foresight of the accused in the circumstances as they existed. One of the notable departures from its general conduct of proceedings is the heavy pro-accused tilt of the court, a feature writ large across the criminal justice system. This paper will examine how the judiciary changes the conventional adversarial model to carve out a greater space for itself in the trial. This paper also examines the burden of proof which rests on the accused. A concerning trend in private defence is the susceptibility of the right to misuse whereby a person may provoke another into a rash attack and use this attack to retaliate in turn, something for which the Indian Penal Code has not provided explicit safeguards. Subsequent to this analysis, the conclusion is presented along with the observations and suggestions of the author.