LAW OF CRIMES ASSIGNMENT

ON

PRIVATE DEFENCE

Submitted By:
SHIMRAN ZAMAN
BA LLB (Hons.)
Roll No. 54
Jamia Millia Islamia, New Delhi
INDEX

1. INTRODUCTION
2. SCOPE AND LIMITATIONS OF RIGHT OF PRIVATE
DEFENCE
3. COMMENCEMENT AND CONTINUATION OF RIGHT
OF PRIVATE DEFENCE
4. RIGHT OF PRIVATE DEFENCE IS AVAILABLE TO
DEFENDER AND NOT OFFENDER
5. BURDEN OF PROOF
6. INDIAN LAW DOES NOT OBLIGE AN ACCUSED TO
RETREAT WHEN FACED WITH AGGRESSIN
7. RIGHT OF PRIVATE DEFENCE OF PROPERTY AND
BODY WHEN BECOME INSEPARABLE
8. CONCLUSION
Introduction

The right of private defence is a valuable right and it is basically

preventive in nature and not punitive. It is available in the face of
aggression when the state help is not available. Section 96 of IPC
does not define the expression ‘right of private defence’. It merely
indicates that nothing is an offence, which was done in the exercise of
‘right of private defence’. Section 97 deals with the subject matter of
private defence, which comprises of right to protect the body or
property of (i) the persons exercising the right; or (ii) of any other
person. The right may be exercised against all offences affecting
human body or attempt or reasonable threat of commission of any
such offence or offence of theft, robbery, mischief or criminal trespass
and attempts to commit any of such offences in relation to property. 1
This right is available for the protection of one’s own body or body of
any other person or one’s property or the property of any other person
in the face of an aggression with respect to body or property against
enumerated offences. Indian law on right of private defence does not
require that the defender must be related to the person whose body or
property is subject matter of aggression. It gives right to everybody to
defend anybody’s and everybody’s body or property against offences
for which right of private defence is provided there is no time to take
recourse to the protection of the public authorities and the force used
is not more than what is necessary to protect the body or property of a
person.

1
R. v. Wheat and Stocks (1921) 2 K.B. 119.
Scope and limitations of right of private defence

The right of private defence of a person enunciated in the matter of its

scope under Section 97 IPC is expressly subject to the restrictions
contained in the succeeding provisions more particularly Section 99.
Section 99 lays down the limits of this right of private defence. The
three important limitations laid down by section 99 are: i) That there
is no right of private defence against the act of a public servant or any
person acting under his instructions if the act of the public servant or
the person acting under his instructions is bonafide and lawful though
not strictly justifiable in law and does not cause reasonable
apprehension of death or grievous hurt. It has been clarified that the
person will not lose his right of private defence if he does not know or
has no reason to believe that the person is a public servant or that the
person is carrying out the instructions under the directions of the
public servant; ii) That there is no time to have recourse to the
protection of the public authority; and iii) That the accused must not
use more force than is necessary in the exercise of right of private
defence. Right of private defence is a right of defence, not of
retribution. It is available in face of imminent peril to those who act in
good faith and in no case can right be conceded to a person who
stage-manages a situation wherein the right can be used as a shield to
justify an act of aggression. The right to punish for the commission of
offence vests in the state (which has a duty to maintain the law and
order) and not in private individuals. The rights given in sections 96
to 98 and 100 to 106 are controlled by section 99. Sections 98 give
right of private defence against certain acts of persons whose acts are
exempted from criminal liability. The right of private defence extends
to voluntarily causing of death subject to the limitations laid down in
section 99 and other related provisions in respect of all offences
against human body enumerated in section 100. The accused must
show that there were circumstances giving rise to reasonable grounds
for apprehending that either death or grievous hurt or any other
offence enumerated under section 100 would be caused to him and
causing of death was necessary in such circumstances. Similarly,
death or grievous hurt can be caused by the defender against certain
offences of property as stipulated in section 103 and the
circumstances stated therein. But it is to be remembered that merely
because the offence or an attempt to commit an offence mentioned
either in section 100 or section 103 were likely to be committed does
not give rise to the causing of death unless the accused is able to show
that causing of death was the necessary force needed to be used to
defend the body or the property against the offences enumerated
therein, as the case may be. In other words, the right of private
defence extends to causing of death in circumstances enumerated in
section 100 in respect of offences against human body enumerated
therein and in respect of property in respect of the offences
enumerated in section 103 subject to the limitations of section 99. The
right of private defence in respect of offences against human body
other than those enumerated in section 100 extends to causing of any
harm other than death subject to limitations of section 99. 2 Similarly,
right of private defence in respect of offences of theft, mischief,
criminal trespass which are not of any of the descriptions enumerated
in section 103 extends to causing of any harm other than death subject
to limitations of section 99.

2
R. v. Prince (1875) 2 C.C.R. 154.
Commencement and continuation of right of private
defence

Sections 102 and 105 deal with commencement and continuation of

right of private defence of body and property respectively. The right
of private defence of body commences, as soon as, a reasonable
apprehension of the danger to the body arises from an attempt or
threat to commit the offence, although the offence may not have been
committed and lasts till such reasonable apprehension lasts.3 If after
sustaining a serious injury there is no apprehension of further danger
to the body or property then obviously the right of private defence
would not be available. Similarly, right of private defence of the
property commences when a reasonable apprehension of danger to the
property. The right of private defence of property against theft
continues till the offender has effected his retreat with the property or
the assistance of the public authorities obtained or the property has
been recovered.4 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 the criminal trespass or mischief. 5 The right of private
defence of property against housebreaking by night continues as long
as the house trespass which has been begin by such housebreaking
continues.6

3
In re Ganpathia Pillai AIR 1953 Madras 936.
4
R. v. Prince (1875) L.R. 2 C.C.R. 154.
5
Chiranji v. State AIR 1952 Nag. 282.
6
Waryam Singh v. Emp. AIR 1926 Lahore 554.
Right of private defence is available only to the defender
and not to the offender

It is well settled legal position that the right of private defence is

available only to a defender against an aggression when the protection
of the state authority is not available provided the same is exercised
within the limitations prescribed in Section 99 IPC and other related
provisions. It is a settled legal position that no aggressor can claim
right of private defence. In Kishan v. State of M.P., the Supreme
Court held that the accused who was an aggressor was not entitled to
right of private defence. This decision was arrived at by the court in
the following factual matrix: One ‘D’ went to the house of the ‘B’
while he was supervising foundation digging near his house. D
warned B to abstain from using bricks belonging to him. B stated that
he was using his own bricks which resulted in hot exchange of words
between them. D left and came back alongwith his other brothers who
dragged B out of his house and started giving blows to him. B tried to
get himself out of their grip and picked up a kutai lying nearby. He
gave three blows with weapon to one of the brothers who fell on the
ground and became unconscious. Thereafter the appellant and his two
remaining brothers caught held B. The appellant snatched kutai from
the hand of B and gave two or three blows on his head. B fell down
and died later on. The appellant was tried for the murder of B. He
pleaded right of private defence. The trial court opined that after B
was in possession of kutai there was a reasonable apprehension of
grievous hurt in the mind of the appellant. So when the appellant
snatched kutai from the hand of the B and struck him blows on his
head, he was acting in exercise of right of private defence. According
to the Sessions Court, B was the aggressor. The trial court held that
although the appellant had no intention to kill B but his act still
amounted to culpable homicide not amounting to murder under
section 304 part II IPC but as he had acted in exercise of the right of
private defence he was not guilty of the offence and acquitted the
appellant as also his co-accused. Disagreeing with the Sessions Court
the high court in the appeal preferred by the State against the
judgement of the Sessions’ court held that the appellant and his co-
accused were the aggressors, B was not an aggressor so the appellant
could not claim to have beaten B in exercise of right of private
defence. The high court accordingly convicted him of the offence of
murder under section 302 IPC. The Supreme Court dismissed the
appeal of the appellant holding that the appellant and his brothers
were aggressors who took law on their on hands and pulled B out of
his house and subjected him to punching and kicking. B tried to
escape from their grip, caught hold of the kutai and struck three blows
on the head of one of the brothers. B was then acting in exercise of
right of private defence. Therefore, he was not an aggressor. The
appellant could not have claim to have beaten in exercise of right of
private defence when he had none being himself alongwith his
brother’s aggressor. The court accordingly upheld the decision of the
high court and dismissed the appeal of the appellant.

Burden of proof

The burden of proof that the act in question was in exercise of right of
private defence with respect to both bodily offences as well as offence
against property is on the accused. In Rizan v. State of Chattisgarh,
the court observed that the question whether a person acted in
exercise of right of private defence is dependent on the surrounding
circumstances of the case. The court also ruled that it is well settled
that it is not necessary for the accused to plead in so many words that
he acted in self-defence. If the circumstances show that right of
private defence was legitimately exercised, it is open to the court to
consider such a plea. In a given case the court can consider it even if
the accused has not taken such a plea but such a conclusion is
discernible from the available material on record. Under section 105
of the Indian Evidence Act, 1872 the burden of proof is on the
accused, who takes the plea of self-defence to prove the same. He is
not required to call evidence; he can establish his plea by reference to
the circumstances transpiring from the prosecution evidence itself.
The question in such a case would be a question of assessing the true
effect of the prosecution evidence, and not a question of the accused
discharging any burden. Where the right of private defence is pleaded,
the defence must be a reasonable and probable version, satisfying the
court that the harm caused by the accused was necessary for either
warding off the attack or for forestalling further reasonable
apprehension from his side. The burden of establishing the plea of
self-defence would stand discharged by showing preponderance of
probabilities in favour of that plea on the basis of material on record.
It cannot be stated as a universal rule that whenever there are injuries
on the body of the accused persons, a presumption can necessarily be
drawn that they had caused injuries in exercise of their right of private
defence. The defence has to further establish that the injuries so
caused on the accused parabolises the version of the right of private
defence. Non-explanation of the injuries sustained by the accused at
about the time of occurrence or in the course of the altercation is a
very important circumstance. But mere non-explanation of the cause
of those injuries by the prosecution may not affect the prosecution
case in all cases. This principle applies to cases where the injuries
sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and creditworthy that it far outweighs the effect
of the omission on the part of the prosecution to explain the injuries.
The courts have observed that a plea of private defence cannot be
based on surmises and speculations. In order to find whether the right
of private defence is available to the accused, the entire incident must
be examined with care and viewed in its proper setting. The injuries
received by the accused to 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 the public authorities for
protection are all relevant factors to be considered. In Rizan, the court
held that the accused running to the house, fetching tabli and
assaulting the deceased are by no means a matter of course. These
acts bore the stamp of a design to kill and took the case out of
purview of right of private defence.
Indian law does not oblige an accused to retreat when
faced with aggression

It is also well settled legal position that the common law rule of
retreat to the wall has not been accepted by the Indian courts. The
Supreme Court has held in State of U.P. v. Ram Swarup that a victim,
being in a place where he has right to be cannot be expected to run a
way or submit himself to aggression. He has a right to face the
aggression and use all force necessary to ward off the aggression. But
he has to be mindful that right of private defence is a right of defence,
not of retribution, it is available in face of imminent peril to those
who act in good faith. This right in no case can be conceded to a
person who stage-manages a situation where the right can be used as a
shield to justify an act of aggression. If a person goes with a 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. While providing for right of
private defence the penal code has surely not devised a mechanism
whereby an attack may be provoked as pretence for killing.

Right of private defence of property and body when

become inseparable

Every person in possession of land is entitled to defend his possession

against anyone who tries to dispossess him by force. This right has
been fully explained in Dev Naraian v. State of U.P. In this case there
was several legal proceedings between rival parties with respect to
both title and possession of some plots of land. On a particular day
there was a clash between the party of the accused and the party of the
complainant. Both sides lodged reports with the police. The appellant
was tried for the murder of one of the members of the complainant
party but was acquitted by the Sessions Court. The trial court after
exhaustive discussions on the evidence produced by the prosecution
and defence came to the conclusion that the possession of the disputed
plot of land was undoubtedly with the accused persons. The only
further question which required determination by the trial court was if
the complainant party had gone to the plot in question with an
aggressive design to disturb the possession of the accused person by
unlawful use of force and the accused person had exceeded his right
of private defence in beating and killing the deceased, a member of
the complainant party. According to the trial court the complainant
party had actually gone to the plot of land in question for the purposes
of preventing the accused person from cultivating and ploughing the
said land. The trial court held that accused as defenders were entitled
to exercise of right of private defence and to inflict injuries with spare
against the aggressors who were carrying lathis. The trial court held
that the death caused was in exercise of right of private defence. The
high court on appeal by the State held that though the accused was
entitled to right of private defence but he had exceeded his right of
private defence by inflicting serious injuries causing death of the
deceased by using spare as against lathi by which only superficial
injuries were caused. On this reason the high court convicted the
accused appellant of the offence under Section 304 IPC and sentenced
him to rigorous imprisonment for five years who appealed to the
Supreme Court against the judgement of the high court. The Supreme
Court held that the high court had erred in law in convicting the
appellant on the ground that he had exceeded the right of private
defence. The high court seemed to have overlooked Section 102 IPC
which makes it clear that right of private defence of the body
commences as soon as the reasonable apprehension of danger to the
body arises from an attempt of threat to commit an offence though the
offence may not have been committed and such right continues so
long as such apprehension of danger to the body continues. The court
observed that the threat, however, must reasonably give rise to the
present and imminent and not remote or distant danger. The right of
private defence rests on the general principal that when a crime is
endeavour to be committed by force, it is lawful to repel that force in
self-defence. The court observed that the high court was wrong when
it said that the appellant/ accused could only claim the right to use
force after he had sustained a serious injury by an aggressive
wrongful assault in a complete misunderstanding of the law embodied
in section 102 IPC. The court held that as soon as the appellant
reasonably apprehended danger to his body even from a real threat on
the part of the complainant party to assault him for the purposes of
forcibly taking possession of the plots in dispute or obstructing threat
of cultivation, he got the right of private defence and to use adequate
force against the wrongful aggressor in exercise of that right. The
court held that there could be little doubt that on the conclusion of the
courts below that the party of the complainant had deliberately come
to forcibly prevent or obstruct the possession of the accused persons
and that this forcible obstruction and prevention was unlawful. The
appellant could reasonably apprehend imminent and present danger to
his body and to his companions. The complainants were clearly
determined to use maximum force to achieve their end. He was,
therefore, justified in using force to defend himself and if necessary
for averting peril to his companions. Merely, because the complainant
party had used lathis could not be held against accused appellant for
not using his spare. Lathi can be used to cause severe injury and,
therefore, it is wrong to say that use of spare was unreasonable. When
faced with grave aggression should accused appellant could not be
expected to coolly way, as if in golden scales and calmly determine
with the composed mind as to what precise kind and severity of blow
would be legally sufficient for effectively meeting the lawful
aggression. The court held that the view of the high court was not
only unrealistic and unpractical but also contrary to law. The court
held that the accused appellant had not exceeded his right of private
defence.
Conclusion

Crime rate in India has been considerably increasing from year to year
and the convictions rate hard become very low and that too the courts
have been awarding very megre punishments by using their vide
discretionary powers. There are more chances to get lenient
punishment by the proved offenders due to loose frame work of the
legislature in fixing the punishment for several offences in the Code.
There is more probability to apply the personally favored brain and
individual opinion of the judicial officers while conforming the
sentence to the offenders, due to wide discretion available in the
present sentencing jurisprudence. So that, there are more chances to
escape for the accused from the clutches of the law. Already Indian
Criminal Justice System is working on the motto of “hundred
criminals can be escaped, but one innocent should not be punished”.
In these circumstances, if the minimum punishment is conformed in
the penal statutes in general and in Indian Penal Code in particular as
it is covering substantial portion of the offences in India by the
legislature through amendments ,the trial court judge will be curtailed
by the Statute and he is forced to give punishment within the limit
stipulated by the legislature. Crime is age-old phenomenon, a deep
rooted evil, born and developed along with the development of man
and gradually became universal malady afflicting each and every
society. There are various reformative steps which can be taken to
curb different crimes which are increasing rampantly. It became
growing societal menace and it is a constant threat to everyday is
peaceful existence. It is endemic in all governments and there is
hardly any society which is totally free from the menace of crime or
totally controlled the crime rate, but it has become rampart in India
and reached disconcerting levels particularly after Independence.
Actually the crime rate of any country decides the safety and security
of the people along with the developmental aspects of that country.
Crimes can be found in all walks of life and has effected every sector
of the society. The present age old colonial punishment system is not
suitable to control the offences it should undergo a radical change.
The only one way to control the crimes and to diminish its allied bad
effects on the society is imposing proper punishment to the
responsible persons and implementing them without any delay.