SPECIAL ASSIGNMENT OF CRITICAL THINKING ESSAY (SACE)

Attendance Back Examination (1st Stage), April-2021

SUBJECT :- Indian Penal Code (IPC)

SEMESTER :- V

NAME :- Lucky Tandon

BATCH :- XIV
I.D no. :- 14/2014/1032
Roll no. :- 75

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR (C.G.)

RIGHT OF PRIVATE DEFENCE

(ABSTRACT)

“ The right to private defence of body and property in India is Codified in ss96 to 106
of the Indian Penal Code (IPC)1860, which are based on the idea that the right to self
preservation is a basic human instinct. These sections, which are provided in the sub-
heading ‘of the rights of private defence’ of chapter IV captioned ‘General
Exceptions’, 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 limits under which the they are to be exercised all of
these provisions are to be read together in order to have a proper grasp of the scope
and limitation of the right of private defence 1. An attempt has been made to succinctly
summarize all the important facets of each section along with related important case
laws related thereto. ”

Objectives and Rationale behind Right to Private defence

The state has the duty and obligation to protect and safeguard the life and property of
its citizens. However since it is not possible for the state to effectively check and
counter every single act or aggression against individuals or property and since the
protective machinery of the state is not omnipresent and ubiquitous the IPC provides
for the right of private defence of individuals where the state grants perfect immunity
from legal ramifications for acts that are done in private defence by a person fearing
for his or others life and property.

Thus in essence the state has effectively provided the right to use force to individuals
against imminent threat for life and property, and to repel violence with violence
when state help cannot be obtained 2 .The right of private defence is based on the
cardinal principle that it is the primary duty of a man to protect himself and self
preservation is the prime instinct of every human being 3 , however providing an
unrestricted right to defend will inevitably lead to disorder and chaos and eventually

1 Munney Khan v. State of Madhya Pradesh AIR 1963 SC 612

2 Gotipulla venkatshiva subramaniam v. State of Andhra Pradesh (1970) 1 SCC 235

3 James martin v State of Kerela (2004)2 scc 203

to serious law and order problems. Thus the provisions although intends to discourage
cowardice and fear in the face of unlawful threat or aggression directed towards
individual but at the same time does not encourage private warfare, it therefore lays
down limits and restrictions within which the rule applies and the conditions to which
it is subject. There is nothing more degrading to the human spirit than to run away in
the face of peril4. Justifying the right of private defence recognized under the IPC and
limitations thereon, authors of the code observed:

“Where and individual citizen or his property is faced with a danger and immediate
aid from the state machinery is not available, the individual citizen is entitled to
protect himself and is property. That being so, it is a necessary corollary to the
doctrine of private defence that the violence which the citizen defending himself or
his property is entitled to use must not be duly disproportionate to the injury which is
to be averted or which is reasonably apprehended and should not exceed its legitimate
purpose. The right of private defence must never be vindictive or malicious.” 5

““Section 96 Things done in private defence-.Nothing is an offence which is done in the

act of private defence

Section 97 Right to private of defence of 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, or criminal trespass. ””

The right to private defence is essentially a defensive right which is to be used only
when the circumstances clearly justify it and to repel unlawful aggression 6

4 Munshi ram v. Delhi Administration AIR 1968 SC 702

5 A penal law prepared by Indian law commissioners 1838 note B, P 269

6 Rajesh kumar v. dharamvir AIR 1997 SCC 3769

Private defence must only be used until imminent threat is present and not after
the threat has passed.

Jai Dev v. State of Punjab7

In this case the accused exercising his right to self defence shot at a mob of people
armed with weapons who were charging at him on his land trying to take possession
of the field. The accused fired shots which killed a Amin Lal,immediately after the
realisation of which the angry mob was fearful and started retreating. The accused
then proceeded to shoot and kill two more people from the retreating mob.

The court held that the accused was only justified in exercising his right to private
defence and the use of force till his shots killed Amin Lal from which he has
immunity, however he then proceeded to shoot and kill two more people from the
retreating mob at which point the act was no longer self defence but a kind of revenge
and thus had malice in his conscience against the people for which the law of self
defence does not grant immunity.

The accused was convicted of murder and sentenced to life imprisonment.

State of Punjab v. Karnail Singh8.

In this case the Supreme Court ruled that the evidence revealed that out of the three
deceased, two were fired from a very close range and one was shot in the back at a far
range thus indicating that he was retreating. The plea of accused for self defence was
rejected and he was sentenced to life imprisonment

Right of private defence is not available to aggressors.

Mannu Singh v. State of Uttar pradesh.

The deceased was going to the market and was attacked by accused with a deadly
weapon, although there were various injuries sustained by the accused during the
attack the supreme court held that the accused being the initial aggressor cannot claim
as they are not entitled to the right of self defence.

7 AIR 1963 SC 612

8 AIR 1995 SC 1970

Jaipal v. State of Haryana9.

The supreme court pointed out that it was the accused party who carried the
dangerous weapon, which clearly showed their intention to attack, and the
complainant party did not carry any weapons but suffered injuries. The accused was
held to be the aggressor.

Free Fight.

A free fight is where two individuals or parties fight with one another using unlawful
force against each other. Both sides mean to fight from the start and have a preformed
intention to settle a certain dispute through the use of unlawful force against each
other, such a pre-planned fight may lead to an inference that the object of neither
party is to protect itself. In such a free fight both the parties are the aggressors and
neither are entitled to claim the right of private defence 10. It is wholly immaterial as to
who attacks and who defends in such a fight 11 and each individual is responsible for
his own acts12. However if the exchanges of injury are difficult to decide then all the
accused deserve acquittal.13

Right of Private Defence against acts of lunatics,Intoxicated persons.

According to section 98 of the IPC if an act is committed by a person who is of

unsound mind or intoxicated or an underage person who has not yet attained the
prudence to reflect upon his actions.Although such acts do not constitute an offence
due to above-mentioned grounds they are not sufficient to rid a person off his right to
private defence. He would be still be entitled to exercise his right to private defence as
if the imminent threat was received from as if it were an offence

The illustrations attached in the bare sections are more than enough to explain this

9 AIR 2000 SC 1271

10 Omkarnath v. State of Uttar Pradesh AIR 1974 SC 1550

11 Gajanand v. Uttar pradesh 1935 SC 695

12 Thakur ranjit bhandari v. State of Gujrat AIR 1984

13 Kanbi nanji virji v. State of Gujrat AIR 1970 SC 219

1. X under the influence of madness, attempts to kill Y. X is not guilty of an offence,
“

but Y has the same right of private defence which he would have if X were a sane
person

2. A enters a house at night which he is legally entitled to enter, B in good faith

acting on the misunderstanding and fear that A is a house breaker and trespassing
attacks A. B is guilty of no offence but at the same time A is entitled to exercise self
defence. ”

Ram Prasad Ahir v. State of Uttar Pradesh 14

Since the right of private defence is only available against offences, Section 98 of IPC
specifically provides that the right to private defence extends to acts that would be
offences but aren’t due to either done by person that are Intoxicated, of unsound mind
or acts done under misconceptions or otherwise.The law makes sure that a person
does not lose his right to self defence merely because the opposite party is
incompetent to commit an offence.

Plea of self defence.

“ It is not necessary for the accused to raise the plea that he had acted in self defence, it
is the duty of the court to examine the same in light of the evidence and material
before it and only when the plea is not established can the accused be convicted of an
offence15

The analogy of estoppel or of the technical rules of civil pleadings are in such cases
inappropriate and the courts are expected to administer the law of private defence in a
practical and reasonable liberality so as to effectuate its underlying object bearing in
mind its character is preventive and not retributive 16 ”

14 AIR 1959 All 790

15 Goerge v, State of Kerela AIR 1960 Ker 142

16 Gotipulla v. State of Andhra Pradesh AIR 1970 SC 1079

Burden of Proof

“ In case of Private defence as according to Section 105 of the act the burden of proof
lies on the accused to proof that circumstances existed which brings the case to
General Exceptions, and the court shall presume absence of such circumstances. The
accused does not have to prove this beyond reasonable doubt, the onus of proof
against him stands discharged where he can show there existed mere preponderance
of possibilities either by pleading it in the cross-examination or evidence on record.

Important points

1. Its upon the facts and circumstances of each case whether a person acted in right of
private defence

2. There must be reasonable apprehension in the mind of the accused that an offence
is likely to commit and that there was not sufficient time to have recourse to public
authorities, the accused must show to claim a right to self defence extending to
voluntary causing death that he had reasonable grounds for apprehending that either
death or grievous hurt may be caused to him. ”

Explanation for injuries on the body of accused.

This matter was extensively discussed on various cases and by multiple judges.
However in order to maintain brevity and precision the cases have been dealt with
succinctly

Mohar rai v. State of Bihar17

Here the Supreme Court held that if the prosecution is not able to explain the injuries
sustained by the accused at the time of occurrence of altercation or aggression, the
court may infer that Prosecution has suppressed material fact and not presented true
version which would make their evidence unreliable, and if the accused can provide
explanation as to his injuries, the prosecutions case can be probably doubted further.

Myriad of cases followed on this matter and have formed law through judicial
pronouncements and key important factors held in various cases may be reproduced
as below:-

17 AIR 1968 SC 1281

1. Injuries of serious nature sustained by the accused in the course of altercation
which are unexplained by prosecution may hint that accused had right of private
defence however this does not include injuries that are evidently not serious, self
incurred or of superficial nature (even more so if the prosecution has proved its case
beyond reasonable doubt).

Necessary Elements-

A. The injury on the person was of a serious nature

B. The injury was caused at the time of occurrence in question.

2. The prosecutions case can however not be entirely rejected on the basis of mere
non explanation of injuries sustained by the accused. The courts are to make specific
efforts to find out how much of the prosecutions case was proven beyond reasonable
doubt, which differs from case to case and no general rule can be provided for that. If
the prosecution case is strong mere non explanation of injuries can not be a ground for
dismissing the prosecutions case.

Private defence cannot be exercised against public servants.

According to section 99 of the act there is no private defence against any act which
does not reasonably cause the apprehension of death or grievous hurt, if done or
attempted to be done by a public servant or by any other person under his direction,
acting in good faith under the color of his office even though the act may not be
strictly justifiable.

Explanation. A person is not deprived of his right to private defence against an act
done or attempted to be done by a public servant or by any other person under the
direction of a public servant,

“unless he knows or has reason to believe that the person doing the act is a public
servant” or

“is acting under the direction of a public servant”, or

“unless the person states the authority under which he acts or if he has authority in
writing and produces such authority if and when demanded.”

The right of private defence cannot be exercised against a public servant if

1. He does not cause reasonable apprehension of death or grievous hurt or damage to
property.

2. If there is sufficient time to have recourse to public authorities.

3. The person uses more force than is necessary to repel the attack(disproportionate
use of force).

Time to have recourse to authorities.

According to section 99 there is no right to private defence if there is time to have

recourse to public authorities, the right is provided to a person only when it is
reasonably clear that the authorities cannot be expected to act and interfere in the
limited amount of time within which death or grievous hurt would have already
happened to a person or his property. If the person knew in advance of a possible
attack and there was ample time then the remedy is to contact authorities, similarly if
the act has already been committed then legal recourse is to be sought rather than to
act in a fit of revenge. 18

Cannot cause more harm than is necessary.

Section 99 provides for a limitation on use of force for self defence than is necessary
and the force use must not be disproportionate. In the case of Omkarnath singh v State
of Uttar Pradesh19 the complainant party came grappling at the accused. After some
time the complainant started fleeing but regardless the accused party made a deadly
assault upon which the court ruled that they were two separate instances and the there
was malicious and vindictive use of force by the accused in response to a threat that
no longer existed.

The court can not be severely analytical on their approach to usher out every minor
overstepping of the force used keeping in mind the human composure has its limits
and acts were done at the spur of the moment, but at the same time the force used
must not so duly disproportionate to outrightly reject the claim for self defence. All of
which is dependant on the facts and circumstances of each case and no general rule
can be formulated for the same.

18 Ram rattan v. State of Uttar Pradesh AIR 1977 SC 619

19 AIR 1974 SC 1550

Instances where right to private defence extends to causing death.

The right to private defence extends to causing death where

1. There is an assault or attempt to kill or cause grievous hurt

2. There is an assault or attempt to commit rape or gratify unnatural lust

3. There is an act or attempt to kidnap or abduct

4. There is an act or attempt to commit wrongful confinement

5. There is an act or attempt of throwing or administering acid

*other than these points the right to private defence only extends to causing hurt and
not death.

If death or grievous hurt is caused through the exercise of private defence the
defender must prove in order to absolving himself of criminal liability that

1. The defence defended against one of the seven descriptions originally mentioned in
section 100

2. And that he acted within limitations stipulated under section 99

When right of private defence does not extend to causing death

“ According to section 101 the right of private defence cannot extend to causing death
if the act is not mentioned in any of the points provided by section 100. In which case
the right only extends to causing harm short of death.

In case of Yogendra morarji v. State of Gujrat20 the Supreme court held that upon
finding himself being surrounded by the complainant party mob who were pelting
stones at the accused in rage of non payement of dues, the accused fired three shots in
quick succession.

The point of being relatively safe inside a car from pelted stones was stressed and also
the accused fired shots in quick succession and instead of firing one shot and checked
to see if the mob was retreating lead to the Honb’le court deciding against the accused

20 AIR 1980 SC 660

and held that at this time the right to private defence extended to causing harm short
of death thereby sentencing the accused under section 302 ”

Commencement and continuation of right of private defence

According to section 102 The right to private defence commences as soon as a

reasonable apprehension of danger to body or property can be made and lasts till the
point such reasonable apprehension continues and not after that point

Right of private defence against deadly assault extends to causing unavoidable

harm to innocent persons Section 106

The act of private defence which extends to causing harm to innocent person must
first comply to sections 99 and 100 of the code and the defender must be so situated
that he cannot effectively exercise his right of private defence without the risk of harm
to innocent person then his right of private defence extends to the running of that risk.

When the right of private defence of property extends to causing Death

According to section 103 such right extends to causing death where

1. Robbery

2. House breaking by night

3. Mischief or fire committed on any building tent or vessel which is used as human
dwelling, or a place for the custody of property.

4. Theft mischief or house trespass the commission of which may lead to a

reasonable apprehension that death or grievous hurt will be the consequence if the
right is not exercised.

Section 104 states that if there is not a reasonable apprehension that the acts will
cause death or grievous hurt then the right extends to causing harm other than death

Section 105 states the extent of commencement and continuation of the right of
private defence of property commences when there is a reasonable apprehension of
danger to such property .
In case of trespass or house breaking, the right commences from the reasonable
apprehension of as long as it continues and ends when the offender retreats from the
property and ends the trespass.

In case of theft the right commences when the offender starts to take control of the
property and continues til such property is in his possession and ends when such
property is recovered.

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