Right to Private Defence – Part 2

This article deals with rest of section of Right to private defence.

All the sections mentioned in the article hereunder are from the Indian Penal Code

Sec 98 deals with right of private defence against the act of a person of unsound mind etc. It states that 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.

Eg: 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. Sec 98 provides that a person does not lose his right of private defence merely because the opposite party is legally incompetent to commit an offence.

It states that right of private defence is available even if the act is not an 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.

:- When Right of Private Defence of Body Extends to cause Death:

The right of private defence of the body extends in certain situations to the extent of even causing death of the aggressor. This right is subject to the restrictions imposed u/s 99. This is recognized u/s 100 of IPC. 

Sec 100 states that 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.

Seventhly.—An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

:- Reasonable apprehension of Death or Grievous Hurt:

The first and the second clause of sec 100 stipulates that right of private defence of body extends to causing death, when such assault reasonably causes the apprehension that death or grievous hurt will otherwise be the consequences of such assault. Such an apprehension of death or grievous hurt must be real or reasonable and not imaginary. It must be present and imminent and not remote or distant one.

:- Assault with the intention of Committing Rape or Gratifying Unnatural Lust:

In Yashwant Rao v. State of MP (AIR 1992 SC 1683), the minor daughter of the accused had gone to the toilet on the rear side of the house. Here the deceased caught her and had sexual intercourse with her. The accused seeing his minor girl being raped by the deceased, hit the deceased with spade and he died. Here the Court held that the father in defence of the body of his daughter, was justified in exercising his right of private defence.

:- Assault with intention of Wrongful Confinement:

In order to apply the sixth clause of sec 100 there must be proof of following facts:

There must be an assault.

  • That assault must be with the intention of wrongful confinement.
  • Such an assault must be made under the circumstance which may reasonably cause a person to apprehend that he will be unable to have recourse to public authorities for his release.
  • All the above three must co-exist.
  • Even if all these four exist, the act must fall under the restrictions mentioned in sec 99.

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

Sec 101 states that if the offence be not of any of the descriptions enumerated in section 100, 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.

:- Commencement and Continuation of Right of Private Defence:

Sec 102 states that 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.

It means the Right of Private Defence of the Body of commences only when the reasonable apprehension of danger to the body arises and it continues till such apprehension continues.

:- When Right of Private Defence of Property Extends to cause Death:

The right of private defence of the property extends in certain situations to the extent of even causing death of the aggressor. This right is subject to the restrictions imposed u/s 99. This is recognized u/s 103 of IPC. 

Sec 103 states that 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 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.

Right of Private Defence of Property :

In James Martin v. State of Kerala [(2004) 2 SCC 203]

 the accused did not close his Mill on the day of the ‘Bharat Bandh’ organized by some political parties. Five members of the political parties armed with deadly weapon entered the mill and demanded to close the mill. When the accused refused to do so, his property was set on fire and so he fired in which two members died. Here the accused pleaded that he exercised his right to defend his property. Here the Court accepted the plea of the accused and held that the accused is protected u/s 103 of Indian Penal Code.

:- Right of Private Defence of Property extends to causing any harm other than death:

Sec 104 states that  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.

As per sec 104, if theft, mischief or house-trespass does not create any reasonable apprehension of death or grievous hurt, then the right of private defence of property extends to voluntary causing to the wrong-doer of any harm other than death.

:- Commencement and continuance of the right of private defence of property:

Sec 105 states 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 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 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.

:- Right of private defence against deadly assault:

Sec 106 deals with Right of private defence against deadly assault when there is risk of harm to innocent person. It states 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.

Sec 106 deals with Right of private defence against deadly assault when there is risk of harm to innocent person. Eg: 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.

Aishwarya Says:

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