Right of Private Defence

The law of nature serves as the foundation for the right to private defence. Man’s inherent nature is to protect himself and hold onto what is his in the face of unjustified abuse from others. Man has access to all the tools necessary to accomplish this goal thanks to nature. The natural right to self-defence is unaffected by law and is thus in full force. Every Indian citizen has the right to self-defence so they can protect themselves from outside forces that might cause them harm or injury. The right to a private defence of someone’s body or one’s property is covered under the Indian Penal Code, Sections 96 to 106.

It is transparent from Sections 96 to 103 and Exception 2 to Section 300 of the IPC that culpable homicide is not murder if the offender, acting in good faith to exercise a legal right to self-defence of person or property, goes beyond the scope of that right and kills the person against whom he is acting in self-defence, provided that such right is exercised without considering or intending to cause more harm than is necessary for the purpose Private defence is an appeal for protection rather than an act of aggression. It is available to individuals who act in good faith and with appropriate force in the face of impending dangers and eliminates from its scope circumstances in which the right is used as a crutch to defend vengeful conduct.

Similar to this, Section 103 of the IPC addresses the right to private property protection in a number of circumstances, including robbery, nighttime burglary, and arson against any structure, tent, or watercraft used as a place of habitation, among others. The State actor must submit to the legal procedure in the same way that it would for any citizen who claimed they had killed someone in self-defence or other legal-permissible circumstances.

Necessary force

The law unquestionably implies that the right to private defence is only attainable where there is a legitimate fear of being injured. The question of whether a person has the right to defend himself when confronted with a lethal weapon—even to the point of killing the attacker—depends on whether or not that person has a reasonable belief that he is in immediate danger of death or serious bodily harm from the attacker, rather than the more detached question of whether or not a person of reasonable prudence would not believe it possible to flee safely or disable the attacker rather than kill him.

In the case of Vidhya Singh versus the State of Madhya Pradesh[1], the right to self-defence is an extremely fundamental right that serves a social good and should not be interpreted narrowly, the Court noted. Situations must be decided from the subjective perspective of the accused, who is caught up in the drama and confusion of the moment and confronted with those precise dangers, rather than by a minute and snarky analysis of the situation by objectivity, which would be natural in a courtroom or would seem strictly necessary to a perfectly at ease bystander.

The right of self-defence where causing death is justifiable

If the offence that prompts the exercise of the right is one of the seven kinds listed in Section 100 of the Indian Penal Code, then exercising the right to self-defence may include intentionally inflicting death or other harm on the aggressor. In Amjad Khan versus the State[2], the Supreme Court ruled that the accused had good reason to believe that he or his family would suffer grave harm, including death. The situation he found himself in was more than enough to grant him the right to self-defence of the body, even to the point of killing.

Right of private defence when it causes unavoidable harm to innocent persons

In the event that an innocent person is murdered or hurt while exercising his right to self-defence, the law shields the individual by releasing him from prosecution under Section 106 of the IPC. According to the aforementioned provision, when a person is subjected to a fatal assault that raises a legitimate fear of death and his right to private defence cannot be employed effectively without harming an innocent person, any harm done to innocent lives is equally protected by the law. In the case of Wassan Singh versus the State of Punjab[3], Two groups of people fought each other. In an act of self-defence, the accused, who had already sustained nine injuries, fired his gun at the attackers, killing an innocent bystander in the process. As a result of the Supreme Court’s ruling that the accused had a right to private defence, he was declared not guilty.

Acts against which there is no plea of right to private defence

This right of private defence does not apply in situations where greater harm than reasonable is caused, according to Section 99 of the IPC, which deals with conduct for which there is no right of private defence. Even though an act may not be strictly justified by law, there is no right against it if it is carried out or attempted by a public worker working in good faith and does not reasonably raise fears of death or great harm. Additionally, there cannot be an opportunity to use this immediately after the immediate threat has been neutralised or eliminated.

Burden of proof

According to Section 105 of the Indian Evidence Act, 1872, the accused does not have to prove their case beyond a reasonable doubt in order to plead guilty. This is a well-established principle. According to the preponderance of the evidence, if the defence of self-defence becomes credible, it should be accepted or at the very least given the benefit of the doubt. In Salim Zia versus the State of U.P.[4], the Supreme Court established a precedent by stating that even if the accused does not expressly enter this plea or present any evidence in support of it, he may still be successful in obtaining the plea of private defence if he is able to present evidence to the court that demonstrates that the crime, he committed was justified by the exercise of his right to private defence.

In Buta Singh versus the State of Punjab[5], the Supreme Court stated that a person who is anticipating death or physical harm cannot weigh on golden scales in the heat of the moment the number of injuries needed to disarm the attackers who were armed. It is frequently difficult to expect the parties to maintain composure and use exactly only as much force in reprisal commensurate with the risk perceived to him in periods of excitement and impaired mental equilibrium.

The right to private defence starts the moment the threat of an assault becomes so near that it would be legal to use force to repel it in self-defence. To detect modest or even marginal overstepping, such circumstances must be assessed pragmatically rather than through magnifying glasses or microscopes. It is important to give self-preservation due respect and to avoid taking an overly technical approach when taking into account what happens in the heat of the moment, on the spot, and while keeping in mind typical human behaviour.

MISUSE OF THE RIGHT TO PRIVATE DEFENSE

The general dictum “necessity knows no law” and “it is the primary duty of man to first help himself” are central to the right to self-defence. Every person has the innate right to self-preservation, but in order to exercise that right, nothing could be done that would conflict with another person’s right. There are several limitations to the right to self-defence, the first of which is that no more injury can be done in self-defence than is legitimately required for defence. The second is whether the self-defence action was indeed self-defence. The right to private defence is available in response to an offence; consequently, when the right to private defence is exercised, the resulting action cannot give rise to a private defence in the victim’s favour. As a result, the victim’s aggressor does not have access to private defence.

Some people will occasionally incite animosity in others and then use that as a justification for their own injury or even murder. However, this cannot be applied in cases when the accused was the only one to exhibit aggressiveness. The private defence, however, is only available to those who act in good faith and do not abuse it to cover up an illegal or aggressive act, according to the court’s assertion. This right to self-defence is only applicable to those who suddenly find themselves in need of escaping a threat that wasn’t their doing. It does not apply to those who use it as vengeance for prior harm. Before the antagonist can be legitimately denied life, the necessity must be real or obvious[6]. Not only must the means of defence be taken into account when evaluating the claim of self-defence, but also the passage of time. It is retribution, not defence, if the person who was assaulted doesn’t attack the aggressor until after the battle or as he is fleeing.  Self-defence as a right has a cultural notion to itself as specified by the Apex Court in the case of Munshi Ram v. Delhi Administration[7] that “such a right would not only be a restraint on those of bad character but would also foster the proper spirit of every citizen.” Self-defence as a right has a cultural connotation to it.


[1] AIR 1971 SC 1857

[2] 1952 SCR 567

[3] JT 1995 (8) 434

[4] 1979 SCR (2) 394

[5] 1991 CriLJ 1464

[6] Balbir Singh v. State of Punjab, 1959 CrLJ 1905.

[7] (1968) 2 SCR 455

Aishwarya Says:

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