As in that section here also it has been specifically stated that this right is subject to what has been specified in section 99 of the Code by way of restrictions. The circumstances under which even death may be caused have been enumerated under four clauses and the section clearly state that the right is available where any of the offences mentioned under any of these clauses has either been committed or attempted.
The first clause says that in case of commission of the offence of robbery or its attempt the defence extends to cause even death of the wrong-doer. Robbery has been defined in section 390 of the Code. The second clause permits this right in case of housebreaking by night, defined in section 446, or its attempt. Under the third clause the right exists for the offence of mischief by fire, or its attempt, committed on an any building, tent or vessel which is used as human dwelling, or as a place for the custody of property.
As can be seen this clause is limited only to mischief by fire and does not apply to other modes of mischief and such mischief must be with respect to a place in the form of a building, tent or vessel used as a dwelling house or where property is kept or stored. Mischief has been defined under section 425 of the Code.
Under the fourth clause this right extends to theft, mischief not covered under the previous clause, or house-trespass or their attempts under such circumstances as may result into a reasonable apprehension in the mind of the defender that death or grievous hurt will be the consequence if such right of private defence is not exercised. Theft has been defined under section 378 and house- trespass under section 442 of the Code.
Right of trespasser even against the true owner
One of the tricky questions that has been coming up before the Courts has been as to whether a trespasser over a property has any right of private defence with respect to the property he has trespassed upon, and also whether this right is available even against the true owner of that property.
The matter came up before the Supreme Court in the famous case of Munshi Ram v. Delhi Administration, where the Court rule that such right exists even against the true owner provided the trespasser has settled possession over the property. Since the Court did not elaborate as to what constitutes settled possession, subsequent decisions by the High Courts interpreted the expression differently.
The Supreme Court ultimately resolved the controversy in Puran Singh v. State, where the accused party after having taken possession of a disputed land possibly about a month before the occurrence had grown wheat crop on it and the complainant party tried to re-enter the land and destroy the crop.
The Supreme Court reversed the decision of the High Court and held that the accused party had acted under right of private defence of property when they resisted the attack by the complainant party in the process of which death and injuries had resulted.
The Court observed that settled possession means such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend the property against an attack even by the true owner. Settled possession means that the trespasser’s possession is effective, undisturbed and to the knowledge of the owner or without any attempt at concealment.
Since the right of private defence is a right of defence no one, not even a true owner, is permitted to take the law in his hands. With the view in mind section 99 of the Code states, inter alia, that there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities.
In Ram Rattan v. State, the complainant had encroached upon certain public land., which was meant for common enjoyment and had established his possession for two or three weeks before the incident. The Supreme Court held that he had a right to defend the encroached property even against the true owner or any member of the public trying to secure the property out of his possession.
To decide as to whether there is settled possession or not one of the tests generally adopted by the Courts in cases of cultivable land has been to find out as to whether or not the trespasser has grown crop over the disputed land, and if the answer to this question is in the affirmative the Courts have generally felt that he had a settled possession over that property.
In Mithu Pandey v. State two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection of fruit by labourers from the trees which were in possession of the accused persons who protested against this illegal act. In the altercation that followed one of the accused suffered multiple injuries because of the assault. The accused used force resulting in death. The Patna High Court held that the accused were entitled to the right of private defence even to the extent of causing death as the fourth clause of this section was applicable.
In Mohinder Pal Jolly v. State the deceased worker and some of his colleagues were shouting slogans in support of their demands outside their factory premises. Some brickbats were also thrown by them which damaged the property of the accused owner of the factory who fired two shots from outside his office room one of which killed the deceased worker.
The Supreme Court held that since it was a case of simple mischief being committed by the workers including the deceased, the accused was not entitled to claim right of private defence under section 103 of the Code.
Where the deceased persons who were unarmed were harvesting certain crop under police protection and they were attacked suddenly by the accused party armed with guns and other dangerous weapons who had first managed to send away the police protecting the deceased party away from there, it was held by the Supreme Court that the accused party were liable for the deaths caused by them as there was no robbery being committed by the deceased party.
Where the deceased who was suspected to be carrying on an illicit relationship with the wife of the accused, committed lurking house-trespass by night, as defined under section 444 of the Indian Penal Code, into the house of the accused with the object of having sexual intercourse with his wife, the consequent use of force on him by the accused resulting into his death was held to be within the right of private defence under clause 4 of section 103 of the Code.
In Mahabir Choudhary v. State of Bihar? mischief was committed against the accused’s property. The Supreme Court held that he had first degree of right of private defence. But this right must be held to have exceeded when there was no fear that otherwise death or grievous hurt would ensue, and as such it was a case of exceeding the right and the accused was convicted under section 304, Part I of the Code.
In State of Rajasthan v. Ram Bharosi, the revenue records showed that the complainant party was in possession of the land where the incident happened. The accused party trespassed into that land fully armed with firearms and lathis for taking possession from the complainant party consisting of two persons.
The Supreme Court held that the use of deadly force by the accused was not justified merely to expel two persons. Intention on the part of the complainant party to commit offence, insult or annoy the accused party under section 441 of the Code was not proved and as such the plea of right of private defence of property under section 103 and the second exception under section 300 of the Code were not available.
In Jassa Singh v. State of Haryana, the Supreme Court held that the right of private defence of property will not extend to the causing of death of the person who committed such acts if the act of trespass is in respect of an open land. Only a house- trespass committed under such circumstances as may reasonably cause death or grievous hurt is enumerated as one of the offences under section 103.