Right of Private Defence

The right of private defence is defined in section 96 to section 100 of Indian Penal Code 1860.

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

In a civilized society with a government, the responsibility of the safety of every person and property is on the state. But what if such aid is not available immediately, arises the right to private defence. It is very valuable right in a civilized and democratic society but is subject to certain reasonable restrictions. In the following sections 96-100 IPC we will discuss the entire law relating to the right of private defence of person and property, with the reasonable restricitions.

General Principle

  • Person starting the fight cannot plead for self-defence.
  • There should not be feeling of retaliation.

Right of private defence of person and property is recognized in all fee, civilised and democratic societies within certain limitations/ reasonable ristrictions. The limits are directed by two considerations: –

  • the same right is claimed by all other members of the society.
  • It is the state which generally undertakes the responsibility for the maintainence of law and order.

The citizen as a general rule is neither expected to run away for safety when faced with imminent/grave danger nor are they expected to use such force against the imminent/grave danger as to punish them for the wrong done against him.

In Arun v. State of Maharashtra (16 March, 2009) the Supreme Court held that self defence is a question of fact which is derived from circumstances of fact.

Section 96 IPC provides that nothing is an offence which is done in the exercise of right of private defence, but the section does not explain the expression “right of private defence”.

As a general principle it does not include right to launch an offensive action, particularly when the need to defend no longer survived. It has to be exercised in proportion to the aggression of the attack.

The onus in general circumstance sin on the accused to prove that he acted in private defence.

The question of proportionate self defence can be understood with the help of the following: –

Illustration.

“A slapped B, B in return started beating A with a big stick, A in self defence killed B.

Question arises whether A can plead for private defence? As A attacked first.

Two answers are available to the above question: –

  • A has attacked first, hence loses right to private defence.
  • A has right to private defence as B has exceeded the limit of defence for slap.

In Kashi Ram v. State of Rajasthan, the accused persons were informed that the complainant were going to illegally cultivate their land. The accused proceeded to that place with full arrangement of weapons and caused fatal injuries to the member of the complainant party, though they were totally without arms. The court said that they could not claim the right of private defence. The findings of the court that there was excessive use of private defence was also unsustainable.

Section 97 IPC defines the right of private defence of body and property. The section says that every person has right to defend him body and body of other against an offence which can affect the human body. And every person has right to defend his or  someone else’s property whether movable or immovable, against an act which is an offence under the definition of theaft, robbery, mischief, criminal, trespass.(the right is subjected to reasonable ristrictions).

NOTE: – Aggressor has no right of private defence i.e. there is no private defence against a private defence.

Who is an Aggressor?

To determine who is the aggressor, we need to look at the circumstances of the case and then can we only determine with due diligence who is an aggressor. Number of injuries, facts that injuries happened to whose body, also does not determine the aggressor. It is mere subject to characteristic of crime and fact of the case.

In Dashrath Alias Jolo v. State of Chhattisgarh (23 Jan, 2018), the Supreme court held that, merely because the occurrence happened in front of the house of the appellant, it cannot be said that the complainant party were the aggressors. To find out as to where the aggressors, the entire incident must be examined with due care on its proper setting.

In Dhananjai v. State of U.P AIR 1994 SC 551, Appellant, armed with deadly weapons came to the house of complainant. Abused and challenged the victim, inflicting injuries which caused his death. The court held the appellant to be aggressor with no right of private defence.

In Jaipal v. State of Haryana 1988 AIR 1504, Accused persons were armed with dangerous weapons, but non from the complainant party was armed. The accused inflicted blows on the vital parts of the deceased’s body, court held that the accused party is aggressor, and subsequently conviction for murder was upheld.

Section 98 IPC talks about the act of private defence against the act of a person of unsound mind. The sections says that an act which in general circumstances would be an offence, is not an offence if it is done under the influence of intoxicant, or where the offender is not in sane mind or under misconception.

Illustration

  • A, under the influence of madness, being not in his senses attempted to kill B. A is guilty of no offence. But B has the same right of private defence against A, if A would have acted when being in his senses.

Section 99 IPC There are three general things which came out in this section.

  • 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 when 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.

In Kanwar Singh v. Delhi Administration AIR 1965 SC 871, Under section 481(1) of Delhi Municipal Corporation Act, the raiding party of the municipal corporation was entrusted to cease stray animals. The accused interviewed the duty of raiding party regarding his animals which were caught. The officer asked him to pay the penalty for allowing his animals to go stray on road. The accused did not pay the penalty but he assaulted them. The Supreme Court held that accused has no right of private defence of property u/s 99 IPC against the public servant because he was performing his duty and with reasonable means.

In Yashwant Rao v. State of Madhya Pradesh AIR 1992 SC 1683, The accused attacked the rapist who was sexually molesting the minor girl (his daughter). The court held that, the accused should not be blamed that he should go to the police station.

Section 100 IPC: –  The criminal justice system does not want us to act like cowards. Whenever an event occurs where there is a threat of danger to the body or life of ourself or any person/persons, one should act bravely and should try to protect himself as well as others. To invoke section 100 of the Indian Penal Code, the following conditions should be fulfilled-

  • There must be an imminent threat of life to a person or grievous hurt to the body.
  • There must be no reasonable way to escape.
  • There must be no time to approach the appropriate authorities for protection.
  • Causing the death of the person who is attacking should have been a necessity.

The following are the certain ground defined in the section against which the section will protect the right of private defence, are: –

  1. Such assault that makes apprehension of death,
  2. Such assault that makes apprehension of grievous hurt,
  3. An assault with the intention of committing rape;
  4. An assault with the intention of gratifying unnatural lust;
  5. An assault with the intention of kidnapping or abducting;
  6. 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.
  7. An act of throwing or administering acid or an attempt to throw or administer acid which makes apprehension of grievous hurt.

Case One boy was chased by the mob during a riot. Boy entered a shop and closed the door, he knows in no time, mob will break in. He in order to save himself took a gun and shot some shorts, he was protected by the right of private defence u/s 100 IPC because he had reasonable apprehension of death, the court held.

Burden Of Proof

The burden lies to the accused. Proof by preponderance of probabilities is sufficient. The burden of proving the right of private defence is not as onerous as that of the prosecution to prove its case. Preponderance of probabilities in favour of accused/defence is enough to discharge the burden. While the prosecution is required to prove its case beyond reasonable doubt.

References: –

  1. Indian Penal Code, 1860
    1. Ratanlal DhirajLal – The Indian Penal Code 1860.

Case Referred: –

  1. Arun v. State of Maharashtra (16 March, 2009).
  2. Kashi Ram v. State of Rajasthan.
  3. Dashrath Alias Jolo v. State of Chhattisgarh (23 Jan, 2018).
  4. Dhananjai v. State of U.P AIR 1994 SC 551.
  5. Jaipal v. State of Haryana 1988 AIR 1504.
  6. Kanwar Singh v. Delhi Administration AIR 1965 SC 871.
  7. Yashwant Rao v. State of Madhya Pradesh AIR 1992 SC 1683.

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