Private Defence- Crimes

Introduction

Under the Indian Penal Code, every person has a right to defend his own body, and the body of any other person, against any offence affecting the human body, and movable or immovable property belonging to him or of any other person against any act which is an offence under the definition of theft, robbery, mischief or criminal trespass or constitutes an attempt to that end. The right commences as soon as a reasonable apprehension or danger to the body, or property arises from an attempt or a threat and continues as long as such apprehension or danger to the body or property continues. It extends to the right to cause death or any harm to the wrongdoer(s). The right can be exercised even in respect of a public servant or police if there is reasonable cause to apprehend that their acts can cause death or grievous hurt, and the exercise of such a right cannot be construed as causing obstruction to them in the discharge of their duty. In general, private defence is an excuse for any crime against the person or property. It probably applies to the defence even of a stranger, and may be used not only against culpable but against innocent aggressors. In general, defence is allowed only when it is immediately necessary against threatened violence. A person who acts under a mistaken belief in the need for defence is protected, except that the courts hold that the mistake must be reasonable. The best that can be said of this qualification is that it is construed leniently, at least in favour of the forces of order. On principle, it should be enough that the force used was in fact necessary for defence, even though the actor did not know this; but the law is not clear. There is no duty to retreat, as such, but even a defender must wherever possible make plain his desire to withdraw from the combat. The right of private defence is not lost by reason of the defender's having refused to comply with unlawful commands. The force used in defence must be not only necessary for the purpose of avoiding the attack but also reasonable, i.e. proportionate to the harm threatened; the rule is best stated in the negative form that the force must not be such that a reasonable man would have regarded it as being out of all proportion to the danger. The question of proportionality is for the jury. A person may lawfully threaten more force than he would be allowed to use. The carrying of firearms and other offensive weapons is generally forbidden, but (1) a thing is not an "offensive weapon" if it is not offensive per se and is carried only to frighten; (2) a person does not "have it with him" if he merely snatches it up in the emergency of defence, and (3) there is the defence of "reasonable excuse" where the defendant acted reasonably under an "imminent particular threat affecting the particular circumstances in which the weapon was carried." The right of defence avails against the police if they act illegally, but the defender cannot take benefit from a mistake as to the law of arrest or self-defence. It was held in Fennell that a person who rescues another from police detention does so at his peril of the detention being lawful, and cannot set up a mistake of fact. The traditional rule is that even death may be inflicted in defence of the possession of a dwelling; and in Hussey this was applied even where the aggressor was acting, and was known to be acting, under a claim of right. The law of private defence of body and property in India is codified in ss 96 to 106 of the Indian Penal code (IPC), which are ostensibly based on the idea that the right of self-preservation is a basic human instinct. These sections, which are clustered under the sub-heading Of the Right of Private Defence of the chapter IV captioned General Expectations, constitute a comprehensive legislative framework of the right of private defence as they deal with the subject-matter, nature and extent of the right of self defence in India as well as the limitations within which the right is required to be exercised. These provisions are complete in themselves and no reliance on the principles of governing the right of self-defence in common Law can be placed for their interpretation. Section 96, which declares that nothing is an offence which is done in the exercise of the right of private defence, lays down the general rule on the right of private defence, while s 97, which deals with the subject-matter of the right of private defence of body and of property and lays down the extent of the right of private defence , proclaims that every person, subject to restrictions contained in s 99, has a right to defend his own body and the body of another person, against any offence affecting human body, and right to defend property of his and of any other person, against any act which is an offence falling under definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. And s 99 lists the situations wherein the right of private defence of body as well as of property is not available to an individual. It lays down the limits of the right. Sections 102 and 105 deal with commencement and continuation of right of private defence of body and of property respectively; while ss 100 and 101 and 103 and 104 deal with the extent of the harm(including voluntary death) that may be inflicted on the assailant in exercise of the right of body and of property respectively. Section 98 makes the right of private defence available even against person who, by reason of infancy, insanity, intoxication or misconception, are legally incompetent to commit an offence. In other words, it gives the right of private defence against certain act of person whose rights exempted from criminal liability. And s 106 allows a person to take the risk of harming innocent person in order to, in exercise of the right of private defence of body, save himself from mortal injury. Section 96, thus, declares, in general terms, that nothing is an offence which is done in the exercise of private defence. The subsequent ss 97-98 and 100-106 explain the contours of the right and define the broad boundaries within which it can be exercised. All the rights enumerated in these sections are subject to restrictions or limitations that are stated in s 99.It is said that the law of self defence is not written but is born with us.

We do not learn it or acquire it somehow but it is in our nature to defend and protect ourselves from any kind of harm. When one is attacked by robbers, one cannot wait for law to protect oneself. The right of private defence arises to those who in face of imminent peril act in good faith and in no case can this right be conceded to a person who manages a situation wherein the right can be used as an shield to justify an act of aggression. If a person goes with gun to kill another, the intended victim is entitled to act in self-defence and if he so acts, there is no right in the former to kill him in order to prevent him from acting in self-defence, there is no private defence against private defence. Every person has a right, subject to certain restrictions, to defend:1. His own body and the body of any other person against any offence affecting the human body,2. 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 any such offences. IPC incorporates this principle in section 96, which says,

Section 96: Things done in private defence -

Nothing is an offence which is done in the exercise of the right private defence.

There is no provision in the Penal Code whereby an accused person can be excused for insulting outburst of abuses in the exercise of the alleged right of private defence. Similarly, mere use of abusive language does not give rise to private defence. Like in Dattu Genus[footnoteRef:1] case where the deceased about a month before the murder had tried to outrage the modesty of the wife of the accused and thereafter on the day of the incident cut a rustic joke enquiring whether the accused had not kept buffaloes for drinking milk which lead the accused to beat the deceased mercilessly resulting in his death, it was held that giving the most charitable interpretation one could not find a single circumstance which will give the accused the benefit of the right of private defence and the interval between the attempt to outrage the modesty of the accuseds wife and the murder being too long he was not entitled to get the benefit of grave and sudden provocation within the meaning of exception 1 to section 300, I.P.C. [1: 1974 Cr LJ 446 (SC)]

Giving a general view of all the provisions of this right in Munney Khan v. State[footnoteRef:2], the Supreme Court observed: The right of private defence is codified in ss 96 to 106, IPC, which have all to be read together in order to have a proper grasp of the scope and limitations of this right. By enacting the sections the authors wanted to except from the operation of its penal clauses acts done in good faith for the purpose of repelling unlawful aggression. [2: A.I.R. 1971 SC 1491]

Availability or Non- Availability of private defence- Factors In order to find whether right of private defence is available or not, the entire incident must be examined with care and viewed in its proper setting. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered on a plea of private defence. Thus running to house, fetching a sword and assaulting the deceased are by no means a matter of chance. These acts bear stamp of a design to kill and take the case out of the purview of private defence. But where the accused was dispossessed of his land by a party of men and he ran to his residence from where he fetched his gun and came back within fifteen minutes to fire at and injure the, he was held to be within his rights, but when he went further still and chased and injure a person who was just standing by there and who died, in reference to him the accused had no right of private defence. Along with the above factors, one has to remember the following limitations on the right of private defence of person or property:i. That if there is sufficient time for recourse to public authorities, the right is not available.ii. That more harm than that is necessary should not be caused.iii. That there must be a reasonable apprehension of death or grievous hurt or hurt to the person or damage to the property concerned.Mannu v. State of Uttar Pradesh[footnoteRef:3] [3: AIR 1979 SC 1230]

When the deceased were going to the market, they were waylaid and attacked by the accused with dangerous weapon. Although, there were injuries caused on the side of the accused party as well and there was also loss of a life, the Supreme Court rejected the plea of self-defence, holding that the accused being the aggressors were not entitled to the right of self-defence.State of Uttar Pradesh v. Ram Swarup[footnoteRef:4] [4: AIR 1974 SC 1570]

The accuseds father held the contract of tehbazari in a vegetable market for 10 years. In one particular tender, he was outbid by the deceased. On the day of the incident, the accuseds father went to the market to purchase a basket of melons. The deceased declined to sell it saying that it was already marked for another customer. Hot words followed during which the deceased, asserting his authority, said he was the thakedar of the market and his word was final. The accuseds father was offended by this show of authority and left in a huff. The accuseds father returned with his three sons, one of them being an accused an hour later. The accuseds father had a knife, the accused had a gun and the other two brothers had lathis. They threw a challenge as to whose authority prevailed in the market. The deceased was taken by surprise and he was shot dead by the accused at point blank range. The defence pleaded that at the time the accused went with his father and brothers to the market, there was an unexpected quarrel between the deceased and the accuseds father, which assumed the form of grappling. The deceaseds servants beat the father of accused with lathis, and it was the beating that impelled the accused to use the gun in defence of his father. The Supreme Court rejected the plea stating that the accused, his father and brothers went to the market with a preconceived design to pick up a quarrel. The accused themselves were the lawless authors of the situation.Jaipal v. State of Haryana[footnoteRef:5] [5: AIR 2000 SC 1271]

The Supreme Court pointed out that it was the accused party alone who carried dangerous weapons, which clearly showed their intention to attack. The complainant party did not carry any weapons, but instead suffered injuries. The accused alone was held to be the aggressor.No Private Defence in a Free Fight-Where two parties come armed with determination to measure their strength and to settle a dispute by force and in the ensuing fight both sides receive injuries, no question of right of private defence arises. In such a case of free fight both parties are aggressors and none of them can claim right of private defence. Since there is a common intention or common object in a free fight, an accused cannot be punished for having recourse to s149 of the IPC. Each individual is responsible for his own acts. However, if, judging by the number of injuries on the parties to a free fight, it is difficult to decide who were the aggressors and who inflicted that blow on whom, all the accused deserve acquittal.Injury on accused- Non- explanation of injuries on the person of the accused is a factor of great importance and this fact may induce the court in judging the veracity of prosecution witnesses with considerable care. in a given case it may strengthen a plea of private defence set up by the accused or may create a genuine doubt regarding the prosecution case. At the same time it cannot be laid down as an invariable proposition of law that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and burden would shift on the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. Thus where the accused had some trivial injuries on non-vital parts but the victim has suffered as many as 19 injuries including some on vital parts which resulted in his death, it could not be believed that the accused had acted in self-defence especially when he was arrested 5 or 6 days after the incident but in the intervening time did not care to get himself medically examined. A plea of private defence cannot be based on surmises and speculation. Section 97: Right of Private Defence of the body and of property-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 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.Right of Private Defence essentially a Defensive and not a Punitive RightAs the very words nothing is an offence which is done in the exercise of the right of private defence, appearing in s96 denote, the right of the private defence is essentially a defensive right circumscribed by IPC and it is available only when the circumstances clearly justified it. It is exercised only to repel unlawful aggression and not to punish the aggressor for the offence committed by him. It is basically preventive in nature and not punitive. It is neither a right of aggression nor a reprisal. Its exercise cannot be vindictive or malicious.However, a right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survives. A person is not entitled to use the violence that is disproportionate to the injury which is to be averted or which is reasonably apprehended. The moment a defender exceeds it, he commits an offence and is thereby disentitled for the right of private defence. The exercise of the right is subject to the restrictions mentioned in s 99 which are as important as the right itself.Ram Ratan v. State of Bihar[footnoteRef:6] [6: AIR 1965 SC 926]

The complainants cattle trespassed into a field and started grazing. The accused party seized the cattle and was taking them to the pound. The complainant party, on coming to know of the seizure of the cattle by the accused party, came with good members, variously armed to rescue the cattle. The Supreme Court held that since the complainants party had come armed with sharp edged weapons and lathis to rescue the cattle from the accused party, the accused party could have apprehended that they were not peacefully inclined and would use force against them in order to rescue the cattle and the force likely to be used could cause grievous harm.In view of this, the court held that the accused party committed no offence in causing injuries to persons in the complainants party and even causing death to one of them. The accused were all acquitted. Jai Dev v. State of Punjab[footnoteRef:7] [7: AIR 1963 SC 612]

A piece of land was bought by the accused party in a neighbouring village of Ahrod. Since they were outsiders to the village, the Ahrod villagers treated them as strangers. When the accused, who were armed, were ploughing the field in the disputed land, the villagers of Ahrod, who could not tolerate that strangers should take possession of the land, came armed in large numbers to take possession of the field. The accused party in self defence of their property caused harm and shot dead one Amin Lal. Immediately thereafter the villagers of Ahrod who had come to the field ran away and there was no longer any justification for using force against the running villagers. The moment the property had been cleared of trespassers, the right of private defence ceased to exist. However, the accused shot dead two of the fleeing villagers. While the right of private defence was available in the killing of Amin Lal, the Supreme Court held that it was not available to kill the fleeing villagers who were already some distance away from the field. The accused were convicted for murder and sentenced to life imprisonment.Nabia Bai v. State of Madhya Pradesh[footnoteRef:8] [8: AIR 1992 SC 602]

The accused along with her mother and sister were weeding their crop when the deceased passed through the neighbouring field. The deceased then came into the field and attacked all three of them with a knife. There was some grappling and the accused managed to get hold of the knife held by the deceased and inflicted injuries resulting in death of the deceased. The Supreme Court observed that the accused had neither motive nor any intention to kill the deceased. She only wanted to save herself from an armed intruder who had inflicted knife injuries on her. The accused was acquitted.Munna v. State of Uttar Pradesh[footnoteRef:9] [9: AIR 1993 SC 278]

The accused attacked the deceased on 6 April 1975 at 2:15 pm. He put up a plea of self-defence and laced reliance on five injuries sustained by him. According to the doctors evidence, he treated the accused on 8 April at 1:30 am and according to him the injuries were six hours old. The fact that he went to the doctor one and a half days after the incident was held to show that they were not injuries sustained in the course of the incident. The Supreme Court rejected the accuseds plea of self-defence and it sentenced him to life imprisonment.State of Punjab v. Karnail Singh[footnoteRef:10] [10: AIR 1995 SC 1970]

The Supreme Court held that the evidence revealed that out of the three deceased, two were fired from a very close range and the third was shot in back, showing that he was fleeing. The accuseds plea of self-defence was rejected and he was convicted and sentenced to life imprisonment.Rajesh Kumar v. Dharamvir[footnoteRef:11] [11: AIR 1997 SC 3769]

The accused party and the deceased party had a dispute over a shop which had a common inner boundary wall. The accused party started demolishing the wall. Hearing the sound, the party of the deceased cam e out on the lane and shouted at them to stop. In the rift between the two, one was killed. The accused took the plea of private defence, stating that the deceased had tried to break open their outer door and in defence of their property they had to kill the deceased. The incidents took place outside on the lane and not inside the house. The Supreme Court held that even assuming that the version put up by the defence was correct, only as long as the deceased party continued in the defence, but it ended the moment the commission of the mischief was done. They attacked the deceased in the lane after the damage was over. The Supreme Court held that the right of private defence can be exercised only to repel unlawful aggression, and not to retaliate. The right under s96 was one of defence and not of retribution or reprisal. The plea of private defence was rejected and the accused were convicted and sentenced to imprisonment.Right of Private Defence not available against Lawful ActsA right of private defence cannot be exercised when a person is carrying out a lawful act. In fact, preventing a person from doing a lawful act would itself amount to an offence.Kanwar Singh v. Delhi Administration[footnoteRef:12] [12: AIR 1965 SC 871]

A raiding party possessing authority under a section of the Delhi Municipal Corporation Act seized the stray cattle belonging to the accused. The accused resisted the seizure of the cattle and inflicted injuries on the raiding party. Since, the raiding party was carrying out a lawful act, It was justified in law to seize the cattle, no right of private defence was available to the accused. Accordingly he was convicted.

Unlawful Assembly and Private Defence-When five or more persons come together to form an assembly, in order to assert their right of private defence either in respect of their person, body or property, such an assembly cannot be termed to be an unlawful assembly. But when these persons use unlawful force (i.e. when they do not act in self defence), they constitute an unlawful assembly.State of Bihar v. Nathu Pandey[footnoteRef:13] [13: AIR 1970 SC 27]

C was in possession of a plot of land. There were mahua trees standing thereon. C along with his party went to the plot with the object of preventing the theft of mahua fruits by the other party in exercise of their right of private defence of their property. In the altercation that followed, two persons from the other party received fatal injuries, which resulted in their death. The Supreme Court held that an assembly could not be designated as an unlawful assembly, if its object was to defend property by the use of force within the limit prescribed by law. The object of Cs party was to prevent the commission of theft of the mahua fruits in exercise of their right of private defence of their property. Hence, they could not be termed as an unlawful assembly and made constructively liable for the acts of the others.Where both parties concerned assemble at a place with arms apprehending opposition and confrontation and have come prepared to meet in, then both parties are unlawful assemblies and the right of self- defence is not available to either of them.

RIGHT OF PRIVATE DEFENCE AGAINST ACTS OF LUNATICS, INTOXICATED PERSONSSection 98: Right of Private Defence against the act of a person of unsound mind, etc-When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

It has been seen earlier that the acts of lunatics, intoxicated persons or acts done under mistake are not offences. The right of private defence is available only against commission of offences.So, s 98, IPC specifically provides that the right of private defence extends to acts which would be offences, but for the fact that they are acts of the youth, persons of unsound mind, acts of intoxicated persons and acts done under misconception. It ensures that a person does not lose is right of private defence merely because the opposite party is legally incompetent to commit an offence and is protected because of legal abnormality. If a drunken man breaks law and attacks either the person or property of other people, any member of the public is entitled to exercise the right of private defence against such attack, even the drunken man himself is entitled to the protection of law. Section 98 is based on the fact that the right of private defence arises from the human instinct of self-preservation and not from any supposed criminality of the person who poses danger to body and property. For e.g.: Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have of Z were sane. A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house- breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.LIMITS OF THE RIGHT OF PRIVATE DEFENCESection 99: Acts against which there is no right of private defence-There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not, reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised- 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.Explanation 1- A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.Explanation 2- A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 99 stipulates the acts against which the right of private defence does not arise. It sets the limits within which the right of private defence is to be exercised.The first two paragraphs (read with explns 1 and 2) lay down that there is no right of private defence against an act done or attempted to be done by a public servant or an act done or attempted to be done by direction of a public servant, unless it causes reasonable apprehension of death or grievous hurt, so long as the public servant acts legally.The right of private defence, by virtue of paragraph three of s99, is not available when there is time available for having recourse to state authorities or for seeking help from the state.The last paragraph stipulates that harm caused in exercise of the right of private defence in no case should exceed than the quantum of harm that may be necessary for the purpose of defence.The right of private defence of person or of property, thus, is to be exercised subject to the following condition:i. If a public servant does not cause reasonable apprehension of death or of grievous hurt to the person or damage to the property;ii. If there is no sufficient time for the recourse to public authorities, andiii. No harm more than necessary to repel the attack is caused.Acts of Public ServantsThe section provides that no right of private defence is available against actions of a public servant or actions done under the direction of a public servant, if it is done in good faith under colour of his office though that action or direction may not be strictly justifiable by law. However, this protection given to lawful acts of public servant or person acting under theirdirection will not apply in cases where the actions of the public servant cause a reasonable apprehension of death or of grievous hurt to the parties concerned. In order words, even if government servant is doing an act in good faith under colour of his office, if his act is such that it causes a reasonable apprehension that it will result in death or grievous hurt of parties, then the parties are entitled to exercise their right of private defence against public servants.However, explanations 1 and 2 to s 99 provide that the section will apply only if the person, doing the act, has knowledge or has reason to believe that the doer of the act is a public servant or is acting under the direction of a public servant. If the person is acting under directions of a public servant then such person should state the authority under which he acts or if the authority is in writing, he should produce the same if demanded in order to get the protection under this section.The restriction on the right of private defence rests on the probability that the acts of a public servant are lawful in which case resistance necessarily amounts to unlawful, partly on the theory that resistance in unnecessary since the law will set right what has been wrongly done in its name, and on the ground that it is good for the society that a public servant should be protected in the execution of his duty even where he is in error.Time to have recourse to AuthoritiesSection 99 further stipulates that there is no right of private defe3nce in cases in which there is time to have recourse to the protection of public authorities.The restriction is based on the fact that the right of private defence is given to a person to repel an imminent danger to his body and property when the state help is not available to him. Obviously, the necessity of self help disappears when he has ample opportunity to have recourse to state authorities. In such a situation, a delinquent, has to approach public authorities rather than taking law into his hands.However, the time element in s99 does not depend upon the gravity of the offence threatened but on the accuseds reasonable apprehension that the act would be completed by the time the public authorities act. The mere fact that the police station is not very far away from the place of incidence cannot deprive a person of his right of private defence.Thus, the right of self defence of either body or property can only be at the time when there is imminent danger or harm. If the parties had advance intimation of the impending harm, then their remedy is to approach the appropriate authorities. Similarly, if the alleged harm is already done, then again their remedy is to take recourse to law and not to take law unto their hands.

Right does not extend to casing more harm than necessarySection 99 places a further limitation to exercise the right of private defence. It stipulates 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.Where the accused continued to assault the deceased after he had fallen down and rendered harmless, it was held that there was no right of private defence.Mohinder Pal Jolly v. State of Punjab[footnoteRef:14] [14: AIR 1979 SC 577]

There was a dispute between the workers and the management over demand for wages. The workers threw brickbats at the factory. The owner of the factory came out and fired with a revolver killing one worker.The Supreme Court held that the owner exceeded his right of self-defence in killing the worker. Baljit Singh v. State of Uttar Pradesh[footnoteRef:15] [15: AIR 1976 SC 2273]

The accused party was in possession of some disputed land. The complainants party trespassed into the land armed with lathis. The accused party tried to protest the land from trespass, as a result of which the accused assaulted the deceased and caused as many as 72 injuries which resulted in the death of the deceased. It was held that the accused exceeded his right of self-defence.Onkarnath Singh v. State of Uttar Pradesh[footnoteRef:16] [16: AIR 1974 SC1550]

There was an incident of grappling between the accused party and complainant party. After some time, the complainant party started fleeing. However, the accused party chased them and made a murderous assault. The Supreme Court held that the two incidents, i.e., the incident of the actual grappling between the parties and the murderous assault thereafter, were two separate both in point of time and distance. The court observed that the assault was exceedingly vindictive and maliciously excessive. The force used was out of proportion to the supposed danger, which no longer existed from the complainant party.The question whether the right of private defence exercised by an accused is in excess of his right and whether the accused has caused more harm than necessary, is entirely a question of fact to be decided upon the circumstances of each case.It is true that the violence is entitled to use in defending himself or his property should not be unduly disproportionate to the injury which is to be averted, or which is reasonably apprehended and should not exceed its legitimate purpose.The exercise of the right of private defence must never be vindictive or malicious. A vindictive or maliciously act by a person implies that the act was not done for protecting himself or his property but with the motive of taking revenge. The right does not allow an individual to chase and kill his assailant who is running away from the scene. However, there can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind would be to ward off the danger and to save himself or his property, and so he would naturally be anxious to strike a decisive blow, he must not use more force than appears to be reasonably necessary.When a person is faced with imminent peril of life and limb of himself or of other, he is not expected to weigh in golden scales the precise force needed to repel the danger. The law therefore allows a defender, in the heat of moment, to carry his right of private defence a little further than what would be necessary when calculated with precision and exactitude of only that much which is required to the thinking of a man in ordinary times or under normal circumstances. In moments of excitement and disturbed equilibrium, it is often difficult to expect a person to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force. In such situations, a court needs to pragmatically view the facts and circumstances of a case and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping by a person while exercising his right of private defence. Keeping in view normal human reaction and conduct, the court has to give due weightage to the pragmatic facts that occurred on the spur of the moment on the spot and to avoid a hyper technical approach n considering them.To begin with, the person exercising his right of private defence must consider whether the threat to his person or property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right.In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts, the right of private defence can be legitimately exercised.The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to secure his victory over his assailant by using the necessary force. This necessarily postulates that as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence. WHEN THE RIGHT OF PRIVATE DEFENCE OF BODY EXTENDS TO CAUSING DEATHSection 100: When the right of private defence of the body extends to causing death-The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-First Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;Second Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;Thirdly An assault with intention of committing rape;Fourthly An assault with the intention of gratifying unnatural lust;Fifthly An assault with the intention of kidnapping or abducting;Sixthly An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that that he will be unable to have to have recourse to the public authorities for his release.The right of private defence of the body extends in certain situation to the extent of even causing death of the aggressor. This is recognized by s100, IPC. This right, it must always be borne in mind, is subject to the restrictions imposed under s 99, such as the fact that first, this right will not be available against a public servant acting in good faith under color of office, unless the act causes reasonable apprehension of death or grievous hurt, secondly, the right of private defence is not available if there is time to take recourse to authorities, and thirdly, this right does not extend to causing more harm than necessary. So, subject to these conditions, the right of private defence extends to the causing of death of the aggressor, subject to further conditions enumerated in s100.As per s100, the right of private defence extends to causing death of the assailant when any one of the six situations stipulated therein arise in the committing of the offence by the doer. In other words, it provides that the right of private defence of body extend to the causing of voluntary death of the actual or potential assailant if he through either of the specified assaults causes reasonable and immediate apprehension of death or grievous hurt in the mind of the accused. The categories of assault specified in the section are:1. Assault to kill or cause grievous hurt;2. Assault to commit rape to gratify unnatural lust;3. Assault to kidnap or abduct, and4. Assault to commit wrongful confinement.If death is caused in the exercise of the right of private defence of body, the defender for absolving himself from criminal liability, must prove that: The offence defended against was one of the six categories mentioned in s 100, and He acted within the limitations stipulated under s 99.Section 100 authorities and justifies the taking away of life of a person in the exercise of the right of self- defence, if four cardinal conditions exist.They are: 1. The accused must be free from fault in bringing about the encounter;2. There must be present an impending peril to life or great bodily harm, either real or so apparent as to create honest belief of an existing necessity;3. There must be no safe or reasonable mode of escape by retreat;4. There must have been a necessity of taking life.Reasonable Apprehension of causing death or Grievous Hurt SufficientThe first clause of s100 stipulates that the right of private defence of body extends to causing death, when such an assault reasonably causes the apprehension that death will otherwise be the consequence of such assault. The second clause stipulates that when an assault causes the reasonable apprehension that grievous hurt will otherwise be the consequence of such assault, then the right of private defence extends to causing death.This right of private defence rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self defence.Amjad Khan v. State[footnoteRef:17] [17: AIR 1952 SC 165]

A communal riot broke out between the Sindhi refugees and the local Muslims. Several Muslim shops had been broken and looted and many killed. The mob had broken into another part of the house where the accused lived and looted it; the women and children of his family fled to the accused for protection. The mob was actually beating at his door with lathis. Under these circumstances, the Supreme Court held that it was not necessary for the accused to wait and see if the mob actually would or not destroy and loot his shop and kill his family. The threat was implicit in the conduct of the mob and the accused had a right of private defence and was justified in firing two shots which resulted in the death of one person.State of Uttar Pradesh v. Zalim[footnoteRef:18] [18: AIR 1996 SC 3278]

There was verbal altercation between the deceased and the accused and the deceased took off the shoe of his left leg, the accused felt insulted, dragged him to the middle of the road and stabbed him. The Supreme Court held that holding of a shoe could not cause reasonable apprehension of danger in the mind of the accused and the plea of private defence was not available to the deceased. Parshottan Lal Ji Waghela v. State of Gujarat[footnoteRef:19] [19: (1992) Cr LJ 2521 (SC)]

The accused belonged to the vankar caste. The deceased belonged to the chamars, scheduled caste. The area in which the vankars lived was called vankarwas. The chamar were not permitted to pass through the street in vankarwas area. When a woman called Shantaben passed through the street in the vankarwas area, it was objected to by the vankars. The accused kicked her in the abdomen. Shantaben went to the temple where the chamars had gathered for bhajans and narrated the incident. On hearing this, about seven to eight chamars who were still at the temple proceeded towards the house of the accused, agitated about the assault on Shantaben. The accused, in anticipation that the chamars would come, came to the eastern end of the street of vankarwas along with other vankars. He was also armed with a gun. There was some pelting of stones between the parties. The accused shot dead two chamars. He pleaded that he did so in self- defence because the chamars were hurling stones. The Supreme Court rejected the plea stating that the chamars having come directly from the temple were unarmed. None of the accused (vankars) party was injured in the stone pelting. So, there could not have been any reasonable apprehension of death or grievous hurt to the accused from the chamars.

Assault with intention of committing Rape or Gratifying Unnatural LustClauses thirdly and fourthly of s 100 provide that the right of private defence of body extends to causing death in cases of assault with intention of committing rape or unnatural lust.Yeshwant Rao v. State of Madhya Pradesh[footnoteRef:20] [20: AIR 1992 SC 1683]

The minor daughter of the accused had gone to the toilet on the rear side of the house. The deceased caught her and had sexual intercourse with her. The accused seeing his minor girl getting raped by the deceased, hit the deceased with a spade. The deceased on trying to flee also fell and hit himself. He died due to injury of the liver. The prosecution case was that the minor girl had consented to the sexual intercourse. The Supreme Court held that since the girl was a minor, the question of consent does not arise and the act of the deceased would amount to committing rape under s 376, IPC, and hence, the father in defence of the body of his daughter, was justified in exercising his right of private defence. The accused was acquitted.Badan Nath v. State of Rajasthan[footnoteRef:21] [21: (1999) Cr LJ 2268(Raj)]

The Rajasthan High Court gave benefit of thirdly of s 100 to a father who killed a person, who, taking opportunity of the absence of mother of prosecutrix and after alluring accused to consume liquor, was attempting to commit rape on his pregnant daughter. Assault with intention of kidnapping or abductingClause fifthly of s 100 provides that the right of private defence of the body extends to causing death in cases of assault with intention of kidnapping or abducting.Vishwanth v. State of Uttar Pradesh[footnoteRef:22] [22: AIR 1960 SC 67]

The accuseds sister was staying with her father and brother (the accused) because she did not want to live with her husband. The deceased husband came to the house of the accused and tried t drag his wife away. The girl caught hold of the door as she was being taken out and tug-of-war followed between her and her husband. At this stage, the accused (the brother of the wife) took out a knife and stabbed against the deceased (the husband) once. The knife penetrated the heart and he fell down senseless and thereafter died. The accused put up the plea that this case would come under fifth clause of s 100. The prosecution contended that ss 364-369 of the IPC do not make abduction a pure and simple crime. As per these clauses, abduction coupled with certain intents such as murder, wrongful confinement is alone an offence. So, the right of private defence under clause fifthly of s 100 will be available only when the abduction is with some other intent. If it is just abduction, the benefit of s 100 is not available. The Supreme Court rejected this argument and held abduction, in clause (5) of s 100, means only abduction simpliciter as defined under s 362 of the IPC, ie where a person is compelled by force to go from any place. It ruled that the moment there is an assault with intention to abduct; the right of private defence is available. It would not be right to expect from a person who is being abducted by force to pause and consider whether the abductor has further intention as provided in s 364-369, IPC. Moreover, the fifth clause itself does not qualify the term abduction and hence, the clause must be given full effect according to its plain meaning. The clause merely requires that there should be an assault, which is an offence againsthuman body and that assault should be with the intention of abducting. The apex court acquitted the accused. Assault with intention of wrongful confinement The sixthly of s100 provides that the right of private defence of body extends to causing death when there is an assault with intention of wrongfully confining a person. This is further qualified that such wrongful confinement must be under circumstances, which cause reasonable apprehension that the person will not be able to have recourse to public authorities for his release.A person wrongfully arrested and being taken to the police station for being handed over to police cannot be said to have a reasonable apprehension that he will be unable to have recourse to the authorities for his release. However, if an assault with intent to cause wrongful confinement is made by a private individual and if he is unable to have a recourse to a public authority for his release, he can avail the right of private defence of body mentioned in sixthly of s 100. In order to apply sixthly of s 100, there must be proof of the following facts, namely:i. There must be assault;ii. That assault must be with the intention of wrongful confinement;iii. Such an assault must e made under the circumstance which may reasonably cause a person to apprehend that he will be unable to have recourses to the public authorities for his release;iv. All the three must co-exist, andv. Even if all these four exist, the act must fall under the restriction mentioned under s 99.WHEN THE RIGHT IF PRIVATE DEFENCE OF BODY DOES NOT EXTEND TO CAUSING DEATHSection 101: When such right extends to causing any harm other than death- If the offence be not of any of the descriptions enumerated in the last preceeding section, the right of private defence of the body does not extend to voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.As per s 101, IPC, the right of private defence of body will extend to causing harm and not death in all other situation except as provided in s 100. In other words, the right of private defence of body will extend to casing death of the assailant, only in the situations stated in s 100. In all other situations, the right of private defence of body will only extend to causing any harm, short of death. However, it is pertinent to note that in all these cases, the defenders right of private defence is subject to the limitations mentioned in s 99.Yogendra Morarji v. State of Gujarat[footnoteRef:23] [23: AIR 1980 SC 660]

There was a dispute over payment of dues claimed by the deceased from the accused in respect of digging of a well in the accuseds land. The accuseds jeep was stopped in the middle of the road by the deceased and others. The deceased party pelted stones on the accused. The accused fired three rounds, one of which hit the deceased. The question before the court was whether the accused had a right of private defence and if so, did it extend to causing of death or did it fall short of causing death?The Supreme Court held that the moment the jeep of the accused stopped by the deceased and others, in the background of the dispute over the dues claimed, there was all possibility that the accused had reasonable apprehension of physical harm at the hands of the deceased and others.But, the question whether the right extended to causing death, the Supreme Court held that the accused was travelling in a closed station wagon and so even if the deceased were pelting stones, he could not have reasonably apprehended death or grievous hurt as a result of the stone throwing. Furthermore, the accused had fired three rounds in quick succession. He should have fired one round and waited to see its effect on the group attempting to surround him before firing the next round. In view of the above, the court held that the right of private defence of the accused extended to only cause harm and not death. By killing the deceased, the accused had exceeded his right and hence was convicted under s 304, IPC.For claiming right of private defence extending to voluntarily causing death, the accused must establish that there were circumstances giving rise to reasonable grounds for apprehension that either death or grievous hurt would be caused to him. Such a reasonable apprehension is required to judge subjectively. The apprehension is in the mind of the person exercising the right of self- defense and the apprehension is to be ascertained objectively with reference to events and deeds at that crucial time and in the total situation of surrounding circumstances.

COMMENCEMENT AND CONTINUATION OF THE RIGHT OF PRIVATE DEFENCESection 102: Commencement and continuation of the right of private defense of the body-The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.Section 102 provides that the right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though, the offence may not have been committed. It does not commence until there is a reasonable apprehension. However, mere threat to body is sufficient to commence the right. It lasts so long as the reasonable apprehension of the danger to the body continues. Therefore, a person cannot get benefit of s 102, if he continues his attack even when the apprehension of danger becomes past.The danger or the apprehension of danger must be present, real or apparent. The right of private defence is available when one is suddenly confronted with immediate necessity of averting an impending danger that is not his creation.Further, the right of private defence continues as long as such apprehension of danger to the body continues. Thus, the right of private defence is co-terminus with the commencement and existence of a reasonable apprehension of danger to commit the offence. So, when the accused after a grappling incident, murderously assaulted a fleeing party, it was held that the supposed danger came to an end when he attacked the deceased and when the danger was over, the accuseds right to private defence got over as well. The accused had no right to chase and kill the deceased.

WHEN THE RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATHSection 103: When the right of private defence of property extends to causing death-The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-First Robbery;Secondly House-breaking by night;Thirdly Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;Fourthly Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.A person employed to guard the property of his employer is protected by ss. 97, 99, 103, and 105 if he causes death in safeguarding his employers property when there is reason to apprehend that the person whose death has been caused was about to commit one of the offences mentioned in this section or to attempt to commit one of those offences. A person whose duty is to guard a public building in the same position, that is to say, it his duty to protect the property of his employer and he may take such steps for this purpose as the law permits. The fact that the property to be guarded is public property does not extend the protection given to a guard. In Jamuna Singhs case[footnoteRef:24] a police constable on guard duty at a magazine or other public building is not entitled to fire at a person merely because the latter does not answer his challenge. [24: (19$$) 23 Pat 908]

In Gurdatta Mals case[footnoteRef:25], the deceased, none of whom was in possession of any dangerous weapons, were harvesting crop on a plot of land with peaceful intention under the protection of police. The accused who claimed the crops did not approach the authorities for redress, although they had time to do so, sent away the police constables by a ruse and then attacked the deceased with guns and other dangerous weapons and shot them down at close range. It was held by the Supreme Court that the acts of the deceased did not amount to robbery and that the accused had no right of private defence of property. [25: AIR 1965 SC 257]

Section 104: When such right extends to causing any harm other than death-If the offence, the committing of which, or attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.As per s104, if theft, mischief or house-trespass does not create any reasonable apprehension of death or grievous hurt, then the right of private defence of property extends to voluntary causing to the wrong-doer of any harm other than death.Section 103, thus, envisages that in the exercise of the right of private defence a person can cause death only in the specific cases mentioned therein while s 104 applies to cases where harm other than death of the assailant can be caused provided conditions stipulated there under are satisfied.And if a group of armed persons comes to evict him from his land, he, having reasonable apprehension of death or of grievous hurt, can even cause death of aggressors to repel the imminent danger to his body and property.Nathan v. State of Madras[footnoteRef:26] [26: AIR 1973 SC 665]

The accused party was in possession of the land and the complainant party tried to forcibly harvest and take away the crop. Since the complainant party was not armed with any deadly weapon and there could not have been any fear of death of death or grievous hurt, it was held that as per s104, the right of private defence of the property of the accused extended only to the extent of causing harm other than death.The right of private defence does not extend to causing death of the person who committed merely criminal trespass. Only a house-trespass committed under such circumstances as may reasonably cause apprehension that death or grievous hurt would be the consequence, justifies death of an assailant as it is enumerated as one of the offences under s 103. However, if an accused is able to prove that the deceased- assailant after trespassing in the open land caused reasonable apprehension of grievous hurt or death that necessitated killing of the assailant, will absolve him from the liability under s100 of the IPC.COMMENCEMENT AND CONTINUATION OF THE RIGHT OF PRIVATE DEFENCE OF PROPERTYSection 105: Commencement and continuance of the right of private defence of property-The right of private defence of property commences when a reasonable apprehension of danger to the property commences.The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or instant hurt ir of instant personal restraint continues.The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.The right of private defence of property against house-breaking by night continues as long as the house-trespass which has begun by such house- breaking continues.As per s105, the right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property in cases of theft continues until the offender has effected his retreat with the property, or either assistance of the public authorities obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt, or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass of mischief.The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

RIGHT OF PRIVATE DEFNCE EXTENDS TO THE CAUSING OF UNAVOIDABLE HARM TO INNOCENT PERSONSSection 106: Right of private defence against deadly assault when there is risk of harm to innocent person-If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.Section 106, IPC, provides that when there is a deadly assault on a person which causes a reasonably apprehension of death and his right of private defence cannot be effectively exercised without causing harm to an innocent person, then in such situations, any harm caused to innocent persons is also protected by law.In other words, in the exercise of the right of private defence, if, some innocent person is killed or injured, law protects the man exercising the right of private defence by exempted him from criminal liability. Wassan Singh v. State of Punjab[footnoteRef:27] [27: (1996) Cr LJ 878 (SC)]

There was a fight between two groups. The accused himself received nine injuries. He shot at the assailants with his gun, which however, hit an innocent woman bystander, killing her. The Supreme Court held that the accused had the right of private defence and hence he was acquitted.

Conclusion

Self-defence against criminal assault is a valuable right serving a social purpose and should not be construed narrowly by courts in recording a conviction, the Supreme Court has held. In adjudging the question whether more force than was necessary was used in the prevailing circumstances on the spot, it would be inappropriate to adopt tests by detached objectivity which would be so natural in a courtroom, or that which would seem absolutely necessary to a cool bystander, said a Bench consisting of Justices Arijit Pasayat and Mukundakam Sharma.The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.The Bench gave this ruling while acquitting Gajanand, who was awarded life imprisonment by the trial court and which sentence was confirmed by the Rajasthan High court. The appellant contended that while exercising the right of private defence he dealt two blows to the deceased, who had attacked him. Writing the judgment, Justice Pasayat said: In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. A person who is apprehending death or bodily injury cannot weigh in golden scales, on the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons.The Bench said: In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force, in retaliation, commensurate with the danger he apprehends, where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent.Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect a slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering, what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration.The Bench said: Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression right of private defence. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor.

Bibliography

Criminal Law PSA Pillai Indian Penal Code Ratanlal and Dhirajlal Criminal Manual Textbook on Criminal Law Glanville Williams www.hindu.com www.helplinelaw.com www.legalserviceindia.com

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