Speech on the Rights of Private Defence in India

Chapter-IV explains General Exceptions. It contains Sections 76 to 106. Of them Sections 96 to 106 explain the provisions about the right of private defence

Meaning:

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Self preservation is the primary instinct of every human being. Every man has the right to defence his own body, property and the body and property of his nearer. This instinct of self preservation is also seen in the animals. This basic principle has been recognised in the Indian Penal Code.

Sections 96 to 106 give protection to the wrong-doer, who commits a criminal act in the course of protecting his person, property, body and property of his nearest.

Russel explains:

“A man is justified in resisting by force any one who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property.

In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable.”

Definition:

Sec. 96 defines “Right of Private Defence”.

Sec. 96. Things done in private defence:

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

Important Points:

A. The right of self defence is a very valuable right. It has a social purpose. This right should not be considered narrowly. There are certain limitations prescribed by the law. The right deserves to be fostered within the prescribed limits.

B. The right of private defence is a right of defence. It should not be used for retribution or to take revenge. It should be used in good faith. In no case it should exceed its limitations.

Where an old woman entered into the house and ate food without permission, the house owner beat her and caused her death. The house owner is not entitled the defence of right of private defence, as he used excess force on a weak woman.

C. In certain occasions, the accused, under Sec. 302, take the plea of right of private defence. The Courts look into the matter very deeply and genuinely.

The Courts consider the circumstantial evidence, previous history between accused and the deceased, the weapons used, the injuries on the body, the number of persons/accused participated in causing wrongful act, etc.

D. In Gurudatta Mai vs. State of U.P. (AIR 1965 SC 257) case, the accused party and also the deceased party, consisted huge members. Each party had pre-arranged plan. The accused party succeeded in killing some of the opposite deceased party.

The accused pleaded the right of private defence. The trial Court acquitted them under the benefit of doubt under the right of private defence. The Supreme Court rejected the Trial Court’s decision.

E. The right to defend does not include a right to offend:

Every drop of human blood is more precious than a claim to acres of land. An accused cannot, for the purpose of enforcing his claim to property, strikes a spear blow in the abdomen of his rival. Law does not protect such an action. This opinion was expressed by the Supreme Court by Ram Sukhavan vs. State (1976 CrLJ 508).

F. An aggressor has no right of private defence:

In a free fight, no right of private defence is available to either party and each individual is responsible for his own acts.

G. Injuries:

The test of injuries is not a sole test in confirming the defence of the accused. However, in majority occasions the Courts point out and distinguish the injuries on the accused and the complainant or deceased. The presence of the injuries on the person of the accused shows that the accused exercised right of private defence.

Large number of injuries on the person of the deceased shows that the accused person exceeded his right of private defence. The absence of injuries on the person of the accused is itself “Res ipsa loquitor” (the thing itself speaks) It reduces the validity of the plea of private defence.

H. Pathani vs. State (1993 CrLJ 1709 Mad.)

The accused was husband and the deceased was his wife. A quarrel took place between them. The husband attacked his wife with pestle. She was unarmed. When the husband attacked the wife, the wife to save her life caught hold of his private parts.

He beat his wife with pestle on the head. As a result wife died. The accused pleaded right of private defence. The Divisional Bench of Madras High Courts held that the accused did not act in the exercise of the right of private defence and exceeded the limits.

Right of Private Defence of the Body and of Property

Sec. 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,—

Firstly:

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 or criminal trespass.

Important Points:

A. Object:

The object of Sec. 97 is to provide the general right of private defence of person and property. However it is restricted with certain conditions mentioned in Sec. 99. The general right of private defence of the body and of property should be utilised subject to the provisions of Sec. 99. Sections 97 and 99 must be read together.

Every human being first loves his body. Next to his own person, every human being loves his family members. Next to it, every human being loves his own property.

Hence the right of self defence, defence of the dearer, and then defence of property is necessary for every human being.

The terms “any other person” signifies that any person against whom the aggressor attacks. These words show that the assailant has right to protect any other person, on whom he has interested.

B. The right of private defence must be utilised only in necessity and danger. However such necessity and danger should not be created by the accused. The aggressor should have proceeded against the accused unlawfully. The necessity must be present, real or apparent. At the same time the accused should not exceed the limits to meet the necessity.

C. In Lakshman Singh vs. State of Orissa (AIR 1988 SC 83) case, the deceased abused the accused. The accused had beaten the deceased with a heavy lathi blow. By one stroke, which was very heavy, the deceased died.

The trial Court held that the accused exceeded his right of private defence, and convicted the accused under Sec. 304, Part-I. The Supreme Court upheld the conviction.

D. Yashwant Rao vs. State of M.P. (AIR 1992 SC 1683)

Brief Facts:

When the accused knocked the door of his own house, as usual, after returning from his duty, found that the door was locked inside. He heard cries of his minor daughter. He went into the house by the back door and found that the deceased was going to rape his minor daughter.

The accused abused the criminal trespasser/deceased, and obstructed his wrongful act. The deceased assaulted the accused. The accused had beaten the deceased with a house hold utensil on the head of the deceased.

The accused pleaded the right of private defence. The trial Court convicted the accused. The Supreme Court set aside the conviction, and held that the accused was protected by the right of private defence.

E. M.D. Khan Abbas Khan vs. Emperor (AIR 1941 LAH 81)

The accused went to the house of the deceased. He wanted to assault the deceased. As soon as the deceased saw the accused, chased him. After some chasing, he was caught. During struggle, the accused stabbed the deceased. The Divisional Bench of the Lahore High Court held that the accused had no right of private defence, because he himself created the necessity and danger.

F. Right of defence of property:

The law wants the people should enjoy their own property without obstructions. When the trespasser or aggressor invades the property of the owner or possessor, and there will be no time to approach the police or Court of Law, then only the owner of the property could defend his own property.

This right of private defence of property is available only in respect of certain specified offences, i.e., theft, robbery, mischief, dacoity, criminal trespass, but not in other cases.

G. Amzad Khan vs. State (AIR 1952 SC 165)

Brief Facts:

A riot broke out between the Sindhi and Mohammadan inhabitants of the locality. The shop of the appellant and his brother were in the same building and the mob looted the shop of the brother and was beating the doors of the appellant’s shop with lathies.

The appellant fired two shots which caused death of two persons of the mob. The mob frightened and fled away. The trial Court convicted the appellant under Sec. 302. It was confirmed by the High Court. The appellant appealed to the Supreme Court.

Judgment:

The Supreme Court reversed the judgment of the trial Court and the High Court. It opined that the appellant had reasonable grounds for apprehending death or grievous hurt to himself and his family members and to his property, and since effective and timely help of public authorities were not available, the right of private defence had accrued to him.

Principles:

If there is time to have re-coursed to the protection of public authorities, the right of private defence will not be available. There must be real danger to the assistant.

Right of Private Defence against the Act of a Person of Unsound Mind

Section 84 gives exemption from criminal liability to a wrongful act committed by a person of unsound mind. In December, 2007, two incidents took place in Hyderabad.

One insane person attacked a college going girl with stone and had beaten on her head. Another person attacked two girls in the public park. Both these accused were arrested and found that they were insane persons.

A, an insane person, attacks B, a person, without any reason. B has right to defend himself by re-attacking A

Sec. 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.

Illustrations:

(a) 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 if Z were sane.

(b) 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 this misconception.

Acts against which there is no Right of Private Defence

Scope:

Sec. 99 imposes the conditions and limitations upon the right of private defence of person and property. Secs. 97 and 99 are read together.

Sec. 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 acts 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.

Important Points:

A. Private defence against acts of the Public Servants:

Clauses (i) and (ii) impose the conditions that 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 or by the directions of a public servants acting in good faith under colour of his office, though the act may not be strictly justifiable by law.

The object of Sec. 99 is designed to protect the public servants in performing their duties. Sec. 21 of the Code defines “Public Servant”. Sec. 52 defines “Good Faith”.

B. Krishna vs. State of Madras (1968 (2) STC 253)

The Sales Tax Officer came to the shop of the accused for an inspection. He attempted to seize the account books of the accused under the Sec. 41 (3) of the Madras Sales Tax Act, 1951.

The accused abducted and assaulted the sales tax officer. The Court held that the accused was guilty and he was not entitled the benefit of right of private defence.

C. Kanwar Singh vs. Delhi Administration (AIR 1965 SC 871)

Under Sec. 418 (1) of the Delhi Municipal Corporation Act, the raiding party of the Municipal Corporation was entrusted to seize the stray animals. The accused intervened the duty of the raiding party contending that his animals were caught. The officers asked him to pay penalty for allowing his animals on the roads.

The accused did not pay the penalty, but he assaulted them. The Supreme Court held that accused had no right of private defence of property under Sec. 99, while the public servants were performing their duties,

D. Time to have recourse to Public Authority:

The 3rd condition of Sec. 99 imposes the restriction nr, ‘hat if the accused has the time to submit his grievance before the public authorities or to the Court of

Law, but the accused does not utilise it and takes the law into his own hands, and causes injuries or death to the opposed party, he is not protected by the right of private defence. The right of private defence arises at once. The aggressor attacks the accused at once.

In Yashwant Rao vs. State of M.P. case the accused attacked the rapist who was sexually molesting his minor daughter. The accused should not be blamed that he should go to the police station or to the Court at that crucial period. If the accused would have gone to the police station, the deceased might have completed rape and killed the minor girl.

E. Pammi vs. Govt, of M.P. (1998 SC (2) SCC 700)

There were factions in the village. The appellant and his accomplice entered the house of the opposite deceased’s party to settle the disputes, wearing deadly weapons at 9-00 p.m. 24-6-1983. Hot discussions and exchange of words took place between them.

The appellant and his followers attacked and caused the death of leader of the opposite group. The appellants pleaded the right of private defence. The Supreme Court quashed the appeals holding that they were not entitled the right of private defence, because they themselves created the dangerous situation.

When the Right of Private Defence of the Body Extend to Causing Death

Scope:

Section 100 explains about “when the right of private defence of the body extends to causing death”. It prescribes the extent of the right to the voluntary causing of death or any other harm to the assailant if the offence which occasions the exercise of the right be any of the descriptions mentioned in the Section.

Sec. 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:—

Firstly:

Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly:

Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly:

An assault with the 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 he will be unable to have recourse to the public authorities for his release.

Important Points:

A. Assault:

Section 100 contains 6 clauses. All these six clauses talk about assault. Assault is an offence defined in Sec. 351 and punishable under Sec. 352. Before exercising the right of private defence under Sec. 100, the opposite party must have committed any wrongful act within the definition of assault. Mere assault is not sufficient. It must create the apprehension of death or of any other harm to the accused/assailant. Further condition is that the assailant has no time to approach the public authorities.

B. Mohammad Shafi vs. Emperor (AIR 1934 Lah 620)

The aggressor committed assault on the wife of the accused. The aggressor had the intention of committing rape on her. She resisted. However she failed. At that time, the accused entered into the house.

Seeing the incident, the assailant attacked the aggressor and caused him death. The Lahore High Court held that the assailant had the right of private defence and acquitted him.

C. Viswanath vs. State of U.P. (AIR 1960 SC 67)

Brief Facts:

This is a leading case on the Right of Private Defence. Gopal married the sister of Viswanath. For some time Gopal lived with his father-in-law Badri, at a railway quarter at Gorakhpur. The relations between him and his wife were strained. Gopal suspected that his wife had illicit contact with one Moti.

Gopal’s sister was married to one Banarsi, who was also living in another railway quarter nearby. Gopal shifted his residence to Banarsi’s house and asked his wife to come to Banarsi’s house.

She refused. Gopal sought the help of Banarsi’s family. On 11-6-1953 evening Gopal, Banarsi, Banarsi’s two sons went to the house of Badri. Banarsi and his sons stood outside the door of Badri’s house.

Gopal went into the house and dragged his wife. The girl refused to go with him and struggled. Badri was talking with Banarsi. To protect his sister Viswanath drew a knife from his pocket and stabbed Gopal.

The knife penetrated into the heart of Gopal and Gopal fell down senseless. Before reaching the hospital, Gopal died. The police filed charge sheet against Viswanath and Badri.

The trial Court acquitted both the accused opining that Viswanath had the right of private defence of the person and that his right extended even to the causing of death as it arose on account of an assault on his sister which was with intent to abduct her.

The Court further opined that more harm than the circumstances of the case required was not caused. On appeal by the State, the High Court upheld the acquittal of Badri, but it set aside the acquittal of Viswanath on the ground that the case was not covered by the 5th clause of Sec. 100.

Judgment:

The Supreme Court allowed the appeal and held that the appellant had the right of private defence of person under the fifth clause of Sec. 100 and did not cause more harm than was necessary and acquitted the appellant.

Principles:

1. The view that the word “abducting” used in the fifth clause of Sec. 100 of the Penal Code refers to such abducting as is an offence under that Code and not merely to the act of abduction as defined in Sec. 362 thereof is not correct.

On a plain reading of clause fifth of Sec. 100, there does not seem to be any reason for holding that the word “abduction” used in the clause means anything more than what is defined as “abduction” in Sec. 362.

All that the clause requires is that there should be an assault which is an offence against human body and that assault should be with the intention of abducting, and whenever these elements are present the clause will be applicable.

2. The appellant had the right of private defence of the body of his sister against an assault with the intention of abducting her by force and that right extended to the causing the death.

D. Chandra Sekhar Thewari vs. State (1993 CrLJ All.)

The accused possessed certain land. While he was plouging, 8 to 10 members armed with spears and lathies proceeded towards the accused. The accused warned them not to enter into the field. The assailants did not heed his words moreover they came forward and unyoked the bullocks.

The accused fired against them, resulting the death of one person of the assailants. The Divisional Bench of Allahabad High Court held that the accused acted in exercise of right of self defence

E. Jayaprakash vs. State (AIR 1991 SC 330)

There was a quarrel between the accused and deceased. They exchanged heated words between them. The deceased was unarmed. The accused drew his kirpan and attacked the deceased resulting his death. The Court held that the accused had no right of self-defence.

F. Fakeera Chamar Case:

The thief was caught at night with half his body and head inside the hole of wall of the house. The house owner/accused had beaten the head of the thief with a pole five times, resulting the death of the thief. The Court held that the accused exceeded the right of private defence and used excess force.

G. Problem:

“X”, a stout and strong rowdy quarreled with “D”, a very weak person, gave a blow on his stomach and pressed his neck. “D” took a knife from his pocket, stabbed and killed X. Explain the criminal liability of “IT. (Apr, 2006, a.u.)

Solution:

‘D’ is not guilty, and is protected under Section 100.

H. When such right extends to causing any harm other than death:

Sec. 101 is the continuation provision of Sec. 100. Under Sec. 101, a person is entitled to exercise his right of private defence of the body, as against any assault other than the first and second clauses of Sec. 100, to the extent of causing grievous hurt.

Sec. 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 preceding Section, the right of private defence of the body does not extend to the 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.

I. Commencement and continuance of the right of private defence of the body:

Sec. 102 explains that 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.

Sec. 102. Commencement and continuance of the right of private defence 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.

When the Right of Private Defence of Property Extends to Causing Death

Sec. 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:

Firstly:

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.

Important Points:

A. Sec. 103 justifies killing the aggressor and exercising right of private defence in cases of robbery, house-breaking by night, arson, theft, mischief or house-trespass causing apprehension of death or grievous hurt. This right is subjected two limitations mentioned in Sec. 99.

First limitation is that there should have no time to approach and seek the help from the public authorities. The second limitation is that the act of the assailant should not exceed the right of private defence and in no case extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

B. Gurudev vs. State of Punjab (1974 CrLJ 154)

The deceased had illicit contact with the wife of the accused. This was not known to the accused. In a night when the deceased committed lurking house-breaking by night for the purpose of committing adultery, the accused had beaten the deceased with a pole causing his death. The Court held that the accused had right of private defence and acquitted the accused.

When Such Right Extends to Causing any Harm Other than Death

Sec. 104. When such right extends to causing any harm other than death:

If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief or criminal trespass, not of any of the 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.

Important Points:

A. Like Sec. 101, Sec. 104 explains the circumstance when the right of private defence of property extends to causing any harm other than death. This Section also has the same limitations and conditions laid down by Section 99

B. Ladha Gova vs. State (1951 Sau 1 DB)

The accused was the owner of sugar-cane field. The accused saw the deceased carrying a bundle of sugar-cane from his field. The accused attacked the deceased, and beat him. The deceased fell down.

Even after that the accused had beaten some more blows with a stick. The deceased died on the spot. The Court held that the accused was not entitled the defence of right of private defence, because he caused more harm than was necessary.

C. Mohindar Pal vs. State of Punjab (AIR 1979 SC 577)

The accused was the owner of a factory. The workers demanded for the enhancement of wages. They began to strike. They entered the office of the accused shouting slogans.

They destroyed goods and furniture of the office. The accused came out of his room and fired a shot from his revolver, resulting the death of one worker.

The Supreme Court held that the accused had right of private defence if the workers’ act would be dangerous to his life. Here the workers destroyed the goods of the office, which would amount to mischief, a wrongful act.

The accused caused more harm than was necessary, and thus he was not entitled the defence of right of private defence. The Supreme Court altered the conviction of the accused from Sec. 302 to Sec. 304 Part-ll.

D. Vishal Singh and another vs. State of M.P. (1998) (9) SCC 90)

There was a dispute on the land. Quarrel took place between two groups on 25-6-1990, while the accused and four accomplices were ploughing. As soon as the complainant party reached the field, the accused fired guns, resulting the death of four persons.

The opposite party did not possess any deadly weapons and arms. Case was filed under Sections 147,148, 302, 307 read with Section 149. The accused/appellants pleaded the right of private defence.

The Supreme Court rejected their contention, and held that the accused exceeded the right of private defence under Ss. 103 and 104, and confirmed their conviction.

E. Commencement and continuance of the right of private defence of property:

Sec. 105 explains that 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 affected 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 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 or 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.

F. Right of private defence against deadly assault when there is risk of harm to innocent person:

Sec. 106 says that 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.

Illustration

A, is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.