Private defense : A Right.

Private defense

Author : Mr. varenyam shukla, Rajiv Gandhi University of Law

 

The state has the duty to protect its citizens and their property from harm. However, circumstances may arise when the aid of state machinery is not available and there is imminent danger to a person or his property. In such situations, a person is allowed to use force to ward-off the immediate threat to his or someone else’s person or property. This is the right of private defence.

Private Defense is given in section 96-106 of Indian Penal Code.

The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting one’s own body and property as also another’s body and property when immediate aid from the state machinery is not readily available; and in so doing he is not answerable in law for his deeds. But the kind and amount of force is minutely regulated by law. The expression ‘private defence’ that has been used in the Indian Penal Code, 1860, has not been defined therein. Thus, it has been the prerogative of the judiciary to evolve a workable framework for the exercise of the right.

 

What is Private Defense?

Thus in India, the right of private defence is the right to defend the person or property of himself or of any other person against an act of another, which if the private defence is not pleaded would have amounted to a crime. Some of the aspects of the right of private defence under the IPC are that no right of self-defence can exist against an unarmed and unoffending individual, the right is available against the aggressor only and it is only the person who is in imminent danger of person or property and only when no state help is available.

 

However, the most important principle is that the right of private defence requires that the force used in the defence should be necessary and reasonable in the circumstances. The reasonable apprehension can only be justified if the accused had an honest belief that there is danger and that such belief is reasonably warranted by the conduct of the aggressor and the surrounding circumstances.

 

IPC Section 96. Things done in private defence:Nothing is an offence, which is done in the exercise of the right of private defence.

Right of private defence cannot be said to be an offence in return. The right of self-defence under Section 96 is not absolute but is clearly qualified by Section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. It is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts. While it is true that law does not expect from the person, whose life is placed in danger, to weigh, with nice precision, the extent and the degrees of the force which he employs in his defence, it also does not countenance that the person claiming such a right should resort to force which is out of all proportion to the injuries received or threatened and far in excess of the requirement of the case. The onus of proving the right of private defence is upon the person who wants to plead it. But an accused may be acquitted on the plea of the right of private defence even though he has not specifically pleaded it.

Courts are empowered to exempt in such cases. It must be borne in mind that the burden of proving an exception is on the accused. It is not the law that failure to setup such a defence would foreclose this right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability. It is true that no case of right of private defence of person has been pleaded by the accused not put forth in the cross-examination to the eye-witnesses but it is well settled that if there is a reasonable probability of the accused having acted in exercise of right of private defence, the benefit of such a plea can still be given to them.

The right of private defence, as the name suggests, is an act of defence and not of an offence. Consequently, it cannot be allowed to be used as a shield to justify an aggression. This requires a very careful weighing of the facts and circumstances of each case to decide as to whether the accused had in fact acted under this right. Assumptions without any reasonable basis on the part of the accused about the possibility of an attack do not entitle him to exercise this right. It was held in a case that the distance between the aggressor and the target may have a bearing on the question whether the gesture amounted to assault. No precise yardstick can be provided to fix such a distance, since it depends upon the situation, the weapon used, the background and the degree of the thirst to attack etc.

The right of private defence will completely absolve a persons from all guilt even when he causes the death of another person in the following situations, i.e

 

• If the deceased was the actual assailant, and

 

• If the offence committed by the deceased which occasioned the cause of the exercise of the right of

 

private defence of body and property falls within anyone of the six or four categories enumerated in Sections 100 and 103 of the penal code.

 

Thangavel case:

The general proverb or adage that “necessity knows no law” does not find a place in modern jurisprudence. The right of self-preservation is inherent in every person but to achieve that end nothing could be done which militates against the right of another person. In the other words, “society places a check on the struggle for existence where the motive of self-preservation would dictate a definite aggression on an innocent person”.

 

Kamparsare vs Putappa:

Where a boy in a street was raising a cloud of dust and a passer-by therefore chased the boy and beat him, it was held that the passer-by committed no offence. His act was one in exercise of the right of private defence.

 

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 of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.

 

This Section limits exercise of the right of private defence to the extent of absolute necessity. It must not be more than necessary for defending aggression. There must be reasonable apprehension of danger that comes from the aggressor in the form of aggression. This Section divides the right of private defence into two parts, i.e. the first part deals with the right of private defence of person, and the second part with the right of private defence of property. To invoke the plea of right of private defence there must be an offence committed or attempted to be committed against the person himself exercising such a right, or any other person. The question of the accrual of the right of the private defence, however, does not depend upon an injury being caused to the man in question. The right could be exercised if a reasonable apprehension of causing grievous injury can be established. If the threat to person or property of the person is real and immediate, he is not required to weigh in a golden scale the kind of instrument and the force which he exerts on the spur of the moment. The right of private defence extends not only to the defence of one’s own body and property, as under the English law, but also extends to defending the body and property of any other person.

Thus under section 97 even a stranger can defend the person or property of another person and vice versa, whereas under the English law there must be some kind of relationship existing such as father and son, husband and wife, etc., before this right may be successfully exercised. A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing but has not accomplished his mission; but this right is not available to the true owner if the trespasser has been successful in accomplishing possession and his success is known by the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. The onus of establishing plea of right of private defence is on the accused though he is entitled to show that this right is established or can be sustained on the prosecution evidence itself. The right of private defence is purely preventive and not punitive or retributive. Once it is held that the party of the accused were the aggressors, then merely because a gun was used after some of the party persons had received several injuries at the hands of those who were protecting their paddy crop and resisting the aggression of the party of the accused, there can be no ground for taking the case out of Section 302, I.P.C., if otherwise the injuries caused bring the case within the definition of murder.

 

Chotelal vs State:

B was constructing a structure on a land subject to dispute between A and B. A was trying to demolish the same. B therefore assaulted A with a lathi. It was held that A was responsible for the crime of waste and B had therefore a right to defend his property.

 

Parichhat vs State of M.P:

A lathi blow on his father’s head, his son, the accused, gave a blow with a ballam on the chest of the deceased. The court decided that the accused has obviously exceeded his right of private defence.

 

IPC Section 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:-

 

• 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.

 

• 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.

 

This Section lay down that for the purpose of exercising the right of private defence, physical or mental capacity of the person against whom it is exercised is no bar. In other words, the right of private defence of body exists against all attackers, whether with or without mens rea. The above mentioned illustration are pointing a fact that even if an attacker is protected by some exception of law, that does not diminish the danger and risk created from his acts. That is why the right of private defence in such cases also can be exercised, or else it would have been futile and meaningless.

 

 

IPC Section 99. Act against which there is no right of private defence:

There is no right of private defence against an act which does not reasonable 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 reasonable 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 to Private defence in no case extends to the inflicting of more harm that 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, demanded.

 

Section 99 lays down that the conditions and limits within which the right of private defence can be exercised. The section gives a defensive right to a man and not an offensive right. That is to say, it does not arm a man with fire and ammunition, but encourage him to help himself and others, if there is a reasonable apprehension of danger to life and property. The first two clauses provide that the right of private defence cannot be invoked against a public servant or a person acting in good faith in the exercise of his legal duty provided that the act is not illegal. Similarly , clause three restricts the right of private defence, if there is time to seek help of public authorities. And the right must be exercised in proportion to harm to be inflicted. In other words , there is no right of private defence :

 

• Against the acts of a public servant; and

 

• Against the acts of those acting under their authority or direction;

 

• Where there is sufficient time for recourse to public authorities; and

 

• The quantam of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of defence.

 

The protection to public servants is not absolute. It is subject to restrictions. The acts in either of these clauses must not be of serious consequences resulting in apprehension of causing death or of grievous hurt which would deprive one of his right of private defence.

To avail the benefit of those clauses,

 

( i ) the act done or attempted to be done by a public servant must be done in good faith; ( ii ) the act must be done under the colour of his office; and

 

( iii ) there must be reasonable grounds for believing that the acts were done by a public servant as such or under his authority in the exercise of his legal duty and that the act is not illegal. Good faith plays a vital role under this section. Good faith does not require logical infallibility but due care and caution as defined under Section 52 of the code.

 

Emperor vs Mammun:

The accused, five in number, went out on a moonlit night armed with clubs, and assaulted a man who was cutting rice in their field. The man received six distinct fractures of the skull-bones besides other wounds and died on the spot. The accused on being charged with murder pleaded right of private defence of their property. Held under Section 99 there is no right of private defence in cases where there is time to have recourse to the protection of the public authorities.

 

Public prosecute vs Suryanarayan:

On search by customs officers certain goods were found to have been smuggled from Yemen into Indian Territory. In course of search the smugglers attacked the officers and injured them. They argued that the officers had no power to search as there was no notification declaring Yemen a foreign territory under Section 5 of the Indian Tariff Act. It was held, that the officers had acted in good faith and that the accused had no right of private defence.

 

IPC Section100. 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;

 

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.

 

To invoke the provisions of sec 100, I.P.C., four conditions must exist:

 

• That the person exercising the right of private defense must be free from fault in bringing about the encounter.

 

• There must be present an impending peril to life or of great bodily harm

 

• There must be no safe or reasonable mode of escape by retreat;

 

• There must have been a necessity for taking the life.

 

 

Moreover before taking the life of a person four cardinal conditions must be present:

 

• the accused must be free from fault in bringing the encounter;

 

• presence of impending peril to life or of great bodily harm, either real or apparent as to create an honest belief of existing necessity;

 

• no safe or reasonable mode of escape by retreat; and

 

• a necessity for taking assailant’s life.

 

 

Yogendra Moraji vs. State:

The supreme court through Sarkaria, J. discussed in detail the extent and the limitations of the right of private defence of body. One of the aspects emphasized by the court was that there must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant. This aspect has create quite a confusion in the law as it indirectly suggests that once should first try to see the possibility of a retreat than to defend by using force which is contrary to the principle that the law does not encourage cowardice on the part of one who is attacked. This retreat theory in fact is an acceptance of the English common law principle of defence of body or property under which the common law courts always insisted to look first as to whether the accused could prevent the commission of crime against him by retreating.

 

Nand kishore lal case:

Accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism. Nearly a year after the abduction, the relatives of the woman’s husband came and demanded her return from the accused. The latter refused to comply and the woman herself expressly stated her unwillingness to rejoin her Muslim husband. Thereupon the husband’s relatives attempted to take her away by force. The accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held that the right of the accused to defend the woman against her assailants extended under this section to the causing of death and they had, therefore, committed no offence.

 

IPC Section101. 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 doesextend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

 

Mohinder Pal Jolly v. State of Punjab:-

Workers of a factory threw brickbats and the factory owner by a shot from his revolver caused the death of a worker, it was held that this section did not protect him as there was no apprehension of death or grievous hurt.

 

IPC Section102. 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. The apprehension of danger must be reasonable, not fanciful. For example, one cannot shoot one’s enemy from a long distance, even if he is armed with a dangerous weapon and means to kill. This is because he has not attacked you and therefore there is no reasonable apprehension of attack. In other words, there is no attack and hence no right of private defence arises. Moreover the danger must be present and imminent.

 

Kala Singh case:-

The deceased who was a strong man of dangerous character and who had killed one person previously picked up a quarrel with the accused, a weakling. He threw the accused on the ground, pressed his neck and bit him. The accused when he was free from the clutches of this brute took up a light hatchet and gave three blows of the same on the brute’s head. The deceased died three days later. It was held that the conduct of the deceased was aggressive and the circumstances raised a strong apprehension in the mind of the accused that he would be killed otherwise. The apprehension, however, must be reasonable and the violence inflicted must be proportionate and commensurate with the quality and character of the act done. Idle threat and every apprehension of a rash and timid mind will not justify the exercise of the right of private defence.

 

IPC Section103. 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 of 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.

 

IPC Section 103 provides the right of private defence to the property whereas IPC Section 100 is meant for exercising the right of private defence to the body of a person. It justifies homicide in case of robbery, house breaking by night, arson and the theft, mischief or house trespass which cause apprehension or grievous harm. If a person does not have possession over the property, he cannot claim any right of private defence regarding such property. Right to dispossess or throw out a trespasser is not available to the true owner if the trespasser has been successful in accomplishing his possession to his knowledge. This right can be only exercised against certain criminal acts which are mentioned under this section.

 

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 the possession of the accused persons who protested against the 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 forth clause of this section was applicable.

 

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 the 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 caused death or grievous hurt is enumerated as one of the offences under Section 103.

 

Section104 IPC. 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.

 

This Section cannot be said to be giving a concession to the accused to exceed their right of private defence in any way. If anyone exceeds the right of private defence and causes death of the trespasser, he would be guilty under Section 304, Part II. This Section is corollary to Section 103 as Section 101 is a corollary to Section 100.

 

V.C. Cheriyan v. State:

The three deceased person along with some other person had illegally laid a road through the private property of a Church. A criminal case was pending in court against them. The three accused persons belonging to the Church put up barricades across this road with a view to close it down. The three deceased who started removing these barricades were stabbed to death by the accused. The Kerela High Court agreed that the Church people had the right of private defence but not to the extent of causing death of unarmed deceased person whose conduct did not fall under Section 103 of the Code.

 

Section105. 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 of 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.

 

This right can be exercised if only there is no time to have recourse of public authorities. As soon as the trespass is accomplished successfully the true owner of the property loses right of private defence to protect property. No right of private defence to protect property is available to a trespasser when disputed land is not at all in possession of him.

 

Section106. 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 or 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.

This section removes an impediment in the right of private defence. The impediment is the doubt in the mind of the defender as to whether he is entitled to exercise his right even when there is a possibility of some innocent persons being harmed by his act. The Sections says that in the case of an assault reasonably causing an apprehension of death, if the defender is faced with such a situation where there exists risk of harm to an innocent person, there is no restriction on him to exercise his right of defence and he is entitled to run that risk.

 

Conclusion

To justify the exercise of this right the following are to be examined:-

 

• The entire accident

 

• Injuries received by the accused

 

• Imminence of threat to his safety

 

• Injuries caused by the accused

 

• Circumstances whether the accused had time to recourse to public authorities.

 

Right of private defence is a good weapon in the hand of every citizen to defend himself. This right is not of revenge but toward the threat and imminent danger of an attack. But people can also like misuse this right. It’s very difficult for court to find out whether this right had been exercised in good faith or not.