RIGHT OF PRIVATE DEFENCE OF BODY

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RIGHT OF PRIVATE DEFENCE OF BODY

SUBMITTED TO: Mr. MANORANJAN KUMAR

(FACULTY FOR CRIMINAL LAW)

SUBMITTED BY: SAMIDHA ROLL NO. 258

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ACKNOWLWDGEMNT
Before starting this project I would like to thank my faculty, Mr. Manoranjan Kumar for giving me such a wonderful topic to work on. The topic was really nice and I was very interested in doing this project. I would also like to thank University librarys librarian who constantly guided in reference and also my friends and guardians. Thanking You, Samidha choosing the appropriate books for

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M ETHODOLOGY
(1) Aim and Objective The aim of the project is to study and analyse the laws relating to Right of Private Defence of Body. (2) Scope and Limitation The scope of the project extends to study of laws relating to right of private defence. I tried to explain the present day position of laws in this context while discussing the various provisions of law regarding the same. The project is based on doctrinal method of research as field work on this topic is quite impossible. I have mainly used the textbooks relating to the subject and the bare act. Moreover internet is used to obtain web articles and write ups and bare acts. Due to lack of expertise and time constraints, I had to use secondary sources to do the research work which is the limitation of this project. (4) Chapterisation I have divided the project into various chapters each dealing with different aspects of the topic. In the initial chapters, I have discussed elaborately, the meaning of private defence and its necessity. Further, I have described different sections relating to that. Lastly, I have concluded the topic by summarising the highlighting aspects of the right of private defence of the body. (5) Sources of Data Books Bare Act Journals

(6) Method of Writing The method of writing followed in this project is both analytical and descriptive. (7) Mode of Citation Uniform mode of citation has been followed hinting at the Harvard Law Schools Bluebook for this project.

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CONTENTS

1) INTRODUCTION.................................................................................................................5 2)RIGHT OF PRIVATE DEFENCE.........................................................................................7 3)THINGS DONE IN PRIVATE DEFENCE...........................................................................9 4)RIGHT OF PRIVATE DEFENCE OF THE BODY AND PROPERTY.............................10 5)WHEN THE RIGHT OF PRIVATE DEFENCE OF THE BODY EXTENDS TO CAUSING DEATH..................................................................................................................11 6)WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH....................................................................................................................................1 7 7)WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH....................................................................................................................................1 8 8)RIGHT OF PRIVATE DEFENCE AGAINST DEADLY ASSAULT WHEN THERE IS RISK OF HARM TO INNOCENT PERSON..........................................................................19 9)CONCLUSION.....................................................................................................................2 0 10)BIBLIOGRAPHY...............................................................................................................2 1

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INTRODUCTION
I t is the first duty of man to help himself. As said by Bentham the law does not require a citizen, however law abiding he may be, to behave like a rank coward on any occasion. The right of self defence must be fostered in the citizens of every free country. The right is recognized in every system of law and its extent varies in the inverse ratio to the capacity of the State to protect life and property of the subject. To emphasize again, self help is the first rule of criminal law. The right of private defence is absolutely necessary for the protection of ones life, liberty, and property. There may be situations wherein help from the State authorities cannot be obtained in order to repel an unlawful aggression either because there is no time to ask for such help, or for any other reason. To meet such exigencies the law has given the right of private defence of body and property to every individual. The right is not dependent on the actual criminality of the person resisted. It depends solely on the wrongful or apparently wrongful character of the act attempted. If the apprehension is real and reasonable, it makes no difference that it is mistaken. As Halsbury1, a person defending himself or his habitation is not bound to retreat or to give way to the aggressor before killing, but if the aggressor is captured or is retreating without offering resistance and is then killed, the person killing him is guilty of murder. The law is the same in India.

IX, p.587, quoted by Huda, p. 386

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But there is no right of private defence when there is time to recourse to the protection of police authorities. The right of private defence is highly prized gift granted to the citizens to protect themselves by effective self resistance against unlawful aggression. No man is expected to fly away when he is attacked. He could fight back and when he apprehends death or grievous hurt he could see that his adversary is vanquished without modulating his defence step by step. Face dwith a dangerous adversary, no man can possibly act with a detached reflection and under such circumstances if he travels a little beyond the limit, the law protect him and hence courts should not place more restrictions on him than the law demands. An act done in exercise of this right is not an offence and does not give rise to any right of private defence in return. The moment one exceeds hid right of private defence, he commits an offence. This right is purely preventive and not offensive, retributive or punitive. The right is a right to ward off the danger of being attacked and the danger must not be illusory but must be so imminent, potent and real that it cannot be averted otherwise than by a counter attack. The code has not devised a contrivance whereby an attack may be provoked as a pretence for killing. Unless the circumstances justify its exercise, this right cannot be exercised. The right is subject to limitations contained in Section 99. Right of private defence comes within the exceptions under Chapter IV of IPC. This project basically revolves around Section 96, 97, 100, 101, 102 and 106 of IPC. Section 96 talks about the things done in private defence; 97, with the right of private defence of the body and of property; 100, when the right of private defence extends to causing death; 101, when such right extends to causing any harm other than death; 102, commencement and continuance of the right of private defence of body and 106 extends to the right of private defence against deadly assault when there is risk of harm to innocent person.

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RIGHT OF PRIVATE DEFENCE

It is the primary duty of the State says Huda,2 to protect the life and property of the subject. But no state, no matter how large its resources, can afford to depute a policeman to dog the steps of every rogue in the country. Consequently a pro tanto right has been given by the State to the subject to take law into his own hand and provide for his own safety. The law of private defence provides that when a person is suddenly faced with an attack to his person or property and immediately aid from the state machinery is not available, that person is entitled to defend himself and resist the attack and to inflict on the attacker any harm that is necessary for the purpose if the defence. The right of private defence serves a social purpose. There is nothing more degrading to the human spirit than to run away in the face of peril. The Penal Code envisages two measures of RPD: One is the first degree RPD which shall not reach upto causing death of the wrongdoer. The other is the full measure RPD which may go up to causing death of the wrongdoer. Both measures are however subject to restrictions enumerated in Section 99, Indian Penal Code. As Bentham expressed in Principles of Penal Law (p.269), The vigilance of magistrates can never make up for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad man as the fear of sum total of individual resistance. Take away this right and you can become in so doing the accomplice of, of all bad men. The force which a person is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is necessarily apprehended and must not exceed its legitimate purpose, and that the exercise of the right must not be vindictive or malicious.
2

The principles of Criminal Law, p.382

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Section 97 gives every man the right to use necessary force against an assailant and to cause harm for the purpose of protecting his own body, and the body of another person against any offence affecting the human body. However, no one can take sides in a quarrel between two or more persons of the right of private defence. In a free fight, there is no right of private defence to either party. Each one is responsible for his own acts. The right of private defence is also available against any offence committed by a person who might not be criminally liable for his act, either by reason of the doer being a man of unsound mind, or by reason of any misconception on the part of that person. The right of private defence is essentially a defensive right circumscribed by the statute, available only when circumstances clearly justify it. The right cannot be used as a shield to justify an act of aggression.

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THINGS DONE IN PRIVATE DEFENCE

Section 96As the section puts it nothing is an offence which is done in the exercise of the right of private defence. The right of self-defence has to be pleaded and proved by the accused. Even if the accused had not pleaded this right, if the court, from the material before it finds that the accused acted in self defence, must take cognizance of the fact. Section 96 deals in general terms that nothing is an offence which is done in the exercise of private defence. In order to find whether the right of private defence is available or not, the entire incident must be examined with care and viewed in its proper setting. The injuries received by the accused, the imminence of threat to is safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered on a plea of private defence. Section 96 and 97 lay down the principles of the right of private defence.

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RIGHT OF PRIVATE DEFENCE OF THE BODY AND OF PROPERTY

Section 97Every person has a right, subject to the restrictions contained in Section 99, to defendFirst-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 of 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 for criminal trespass. Section 97 provides for the defence of against any offence affecting the human body There is no obligation upon a person entitled to exercise the right of private defence and to defend his person or property, to retire merely because his assailant threatens him with violence. It specifically recognises the right of private defence of body and property. These right are subject to, limitations imposed in section 99. Section 97(1) provide that the right of private defence of body extends not only to the protection of ones own body, but also the body of any other person against any offence affecting the human body. Explaining the genesis of the rule, the Supreme Court has observed that it is important to bear in mind that self preservation of ones life is the necessary concomitant of the right of life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred,

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precious and inviolable. The importance and validity of the duty and right to self preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it.

WHEN THE RIGHT OF PRIVATE DEFENCE OF THE BODY EXTENDS TO CAUSING DEATH
Section 100The 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. Section 100 declares that the right of private defence of the body extends to the causing death to assailant, if the offence which occasions the exercise of the right is an assault of any one of the description enumerated in that section, namely, apprehension of causing death, or

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of causing grievous hurt, or of committing rape, or of gratifying unnatural lust, or of kidnapping or abduction, or of wrongfully confining a person which may reasonably cause the apprehension that the man may not be able to contact public authorities for help. The right of private defence to a person also extends to the taking of risk to life of innocent persons where there is a reasonable apprehension of death and the person is so situated that he cannot effectively exercise the right of private defence without doing harm to such persons. Moreover before taking the life of a person four cardinal conditions must be present: 1) The accused must be free from fault in bringing the encounter 2) Presence of impending peril or great bodily harm, either real or apparent as to create an honest belief of existing necessity 3) No safe or reasonable mode of escape by retreat 4) A necessity for taking assailants life The Right of Private Defence commences as soon as 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. The apprehension of danger must be reasonable, not fanciful, and the violence inflicted must be proportionate and commensurate with the quality and character of the act done. Idle threats and every apprehension of a rash and timid mind will not justify the exercise of the right of private defence. Moreover the danger must be imminent and present.

DEFENSIVE RIGHT
It is a defensive right circumscribed by the statute, available only when the circumstances clearly justify it. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repeal that force in self defence. The right of private defence of the body extends it causing death when any of the six situations stipulated therein arise in the committing of the offence by the doer.

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REASONABLE APPREHENSION OF DEATH OR GRIEVOUS HURT SUFFICIENT

In order to avail criminal liability under this clause, it is required to be established that there was reasonable apprehension of death or grievous hurt. It is not essential that actual injury should be caused by the aggressor or the victim before the right of self defence can be availed of. This right of private defence rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repeal that force in self-defence. This right is available for protection against apprehended unlawful aggression and not for punishing he aggressor for the offence committed by him. If after sustaining a serious injury, there is no apprehension of further danger to the body, then obviously the right to put defence would not be available. Therefore as soon as reasonable apprehension of danger arises, the right of private defence can be exercised. Whether there was reasonable apprehension of death or grievous hurt is always a question of fact, to be determined on the basis of the facts and circumstances of each case. In Amjad Khan v. State,3 a communal riot broke out between the Sindhi refugees and the local Muslims. The mob had broken into another part of the house where the accused lived and looted it. The women and children of his family fled to the accused for protection. The mob was beating at his door with lathis. Here Supreme Court held that it was necessary for the accused to wait and see if the mob actually would or not destroy and loot his shop and kill his family. The threat was implicit in the conduct of the mob and the accused had a right of private defence and was justified in firing two shots which resulted in the death of one person. In Parshottam Lal Ji Waghela v State of Gujarat 4, the accused belonged to the vankar caste. The deceased belonged to the chamars, a scheduled caste. The area in which the vankars
3

AIR 1952 SC 165 (1992) Cr LJ 2521 (SC)

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lived was called vankarwas. The chamars were not permitted to pass through the street in the vankarwas area. When a women called Shantaben passed through the street in the vankarwas area, it was objected to by the vankars. The accused kicked her in the abdomen, Shantaben went to the temple where the chamars had gathered for bhajans and narrated the incdent. On hearing this, about seven to eight chamars who were still at the temple preceded towards the house of the accused, agitated about the assault on Shantaben. The accused, in anticipation that the chamars would come, came to the eastern end of the street of vankarwas along with other vankars. He was also armed with a gun. There was some pelting of stones between the parties. The accused shot dead two chamars. He pleaded that that he did so in self-defence because the chamars were hurling stones. The Supreme Court rejected the plea stating that the chamars having come directly from the temple were unarmed. None of the accused was injured in the stone pelting, so there could not have been any reasonable apprehension of death or grievous hurt to the accused from the chamars.

ASSAULT WITH THE INTENTION OF COMMITTING RAPE OR GRATIFYING UNNATURAL LUST

Clauses thirdly and fourthly of Section 100 provide that the right of private defence of body extends to causing death in cases of assault with intention of committing rape or gratifying unnatural lust. In Yeshwant Rao v State of MP, 5, the minor daughter of the accused had gone to the toilet on the rear side of the house. The deceased gripped her and had sexual intercourse with her. The accused seeing his minor girl being raped by the deceased, hit him with a spade. The deceased on trying to flee also fell and hit himself. He die due to injury of the liver. The prosecution case was that the minor girl had consented to the sexual intercourse. The Supreme Court held that since the girl was a minor, the question of consent does not arise and the act of the deceased would amount to committing rape under Section 376 IPC. Hence the father in defence of the body of his daughter was justified in exercising his right of private defence. The accused was acquitted.

AIR 1992 SC 1683

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ASSAULT WITH INTENTION OF KIDNAPPING OR ABDUCTION

In Vishwanath v State of UP, 6the accuseds sister was staying with her father and brother(accused) because she did not want to live with her husband. The deceased husband came to the house of the accused and tried to drag his wife away. The girl caught hold of the door as she was being taken out and a tug-of-war followed between her and her husband. The accused took out a knife and stabbed the deceased once. The knife penetrated the heart and he fell down senseless and thereafter died. The accused put up the plea that his case would come under clause fifthly of Sec. 100. Prosecution contended that section 364-369 of the IPC do not make abduction a pure and simple crime. As per these clauses, abduction coupled with certain intents such as murder, wrongful confinement is alone an offence. So the right of private defence under clause fifthly of section 100 will be available only when the abduction is with some other intent, if it is just abduction. The benefit of sec 100 is not available. The Supreme Court rejected this argument and held that abduction means only abduction simplicitor as defined under section 362 of the IPC, i.e. where a person is compelled by force to go from any place. It ruled that the moment there is an assault with an intention to abduct the right to private defence is available. It would not be a right to expect from a person who is being abducted by force to pause and consider whether the abductor has further intention as provided in section 364-369 of IPC. Moreover, the fifth clause itself does not qualify the term abduction and hence the clause must be given full effect according to its plain meaning. The clause merely requires that there should be an assault which is an offence against human body, and that assault should be with an intention of abduction. The apex court acquitted the accused.

AIR 1960 SC 67

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ASSAULT WITH INTENTION OF WRONGFUL CONFINEMENT

Right of private defence of body extends to causing death when there is an assault with intention of wrongfully confining a person.This is further qualified that such wrongful confinement must be under circumstances which cause reasonable apprehension that the person will not be able to have recourse to public authorities for his release. A person wrongfully arrested and being taken to the police station for being handed over to the police cannot be said to have a reasonable apprehension that he will be unable to have recourse to the authorities for his release. However, if an assault with intention to cause wrongful confinement is made by a private individual and if he is unable to have recourse to a public authority for his release, he can avail the right of private defence of body mentioned in sixthly clause of sec 101.

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WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH
Section 101If the offence be not of any of the descriptions enumerated in the last preceding section, 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. Section 101 provides the situation when ROPD will extend to causing harm, but not death. As per this section, the right of private defence of body will extend to causing harm and not death in all other situation except as provided in Sec 100. In all other other situations the right of private defence of body will only extend to causing any harm, short of death. In Yogendra Morarji v State of Gujarat7, tthere was a dispute over payment of dues claimed by the deceased from the aacused in respect of digging of a well in the accuseds land. The accuseds jeap was stopped in the middle of the road by the deceased and others. The deceased party pelted stones on the accused. The accused fired three rounds, one of which hit the deceased. The question before the court was whether the accused had a right of private defence and if so, did it extend to causing of death or did it fall short of causing death. The Supreme Court held that the moment the jeep of the accused was stopped by the deceased and others, in the background of the dispute over the dues claimed, there was all possibility that the accused had reasonable apprehension of physical harm at the hands of the deceased and others. For claiming right of private defence extending to voluntarily causing death, the accused must establish that there were circumstances giving rise to reasonable grounds for apprehension that either death or grievous hurt would be caused to him. Such a reasonable apprehension is required to judge subjectively. The apprehension is in the mind of the person exercising the right of self defence and the apprehension is to be ascertained objectively with

AIR 1980 SC 660

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reference to events and deeds at that crucial time and in the total situation of surrounding circumstances.

WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH
Section 102The 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. Section 102 provides that the right of private defence 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. It does not commence until there is a reasonable apprehension. The Supreme Court of India has rightly expressed in Deo Narayan case 8 that to say that a person can only claim the right to use force after he has sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in Section 102, Indian Penal Code. The danger or the apprehension must be real, present or apparent. The right of private defence is available when one is suddenly confronted with immediate necessity of averting an impending danger that is not his creation. Further the right of private defence continuous as long as such apprehension of danger to the body continuous. Thus the right of private defence is co-terminus with the commencement and existence of a reasonable apprehension of danger to commit an offence.

Deo Narayan v. State of U.P., (1975) 1 SCC 473

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RIGHT OF PRIVATE DEFENCE AGAINST DEADLY ASSAULT WHEN THERE IS RISK OF HARM TO INNOCENT PERSON
Section 106If 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 or private defence extends to the running of that risk.

Section 106, IPC, provides that when there is a deadly assault on a person, which causes a reasonable apprehension of death and his right of private defence cannot be exercised without causing harm to innocent person then in such situation, any harm caused to innocent persons is also protected by law. Thus in the exercise of right of private defence, if some innocent person is injured or killed, law protects the man exercising the right of private defence by exempting him from criminal liability. In Wassan Singh v State of Punjab 9, there was a fight between n two groups. The accused himself received nine injuries. He shot at the assailants with his gun, which however hit an innocent women bystander, killing her. The Supreme Court held that the accused had the right of private defence and hence was acquitted.

CONCLUSION
9

(1996) Cr LJ 878 (SC)

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The right of private defence of body is a valuable right granted to a person to offer effective resistance against his assailant. It rests on the general principal that where a crime is endeavoured to be committed by force, it is lawful to repeal that force in self defence. Sections dealt under this topic provides the immunity from punishment which would otherwise be a penal offence. The law allows a defender, in the heat of the moment, to carry his right of private defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind. In the exercise of the right of private defence, the person must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So as long as the threat lasts, the right of private defence can be legitimately exercised. Moreover the right of private defence of body extends to causing death of a person, as mentioned in sec 100 of IPC. It authorises and justifies the taking away of life of a person in the exercise of the right of self-defence. Section 101 of IPC restricts the above mentioned right to causing harm and not death in all other situation except as provided in Section 100. It is pertinent to note that in all these cases, the defenders right of private defence is subject to the limitations mentioned in section 99, which talks about the acts against which there is no right of private defence and the extent to which the right may be exercised.

BIBLIOGRAPHY

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BOOKS
1) Pillsi, PSA, Criminal Law, Tenth Edition, Lexis Nexis Butterworths 2) Gaur KD, A Textbook on the Indian penal Code, Third edition, Universal Law Publishing Co. 3) Mishra SN, Indian Penal Code, 14th Edition, Central Law Publications 4) Ratanlal and Dheerajlal, The Indian penal Code, 30th Edition, Reprint 2007, Wadhwa & Company Nagpur 5) Gaur K D, Criminal Law cases and Materials, Fourth Edition, Lexis Nexis Butterworths

WEBSITES
1.

http://www.advocatekhoj.com/library/lawareas/defence/defence.php?Title=Right %20of%20Private%20Defense%20of%20the%20body%20and%20of%20property

2. 3.

http://www.vakilno1.com/bareacts/IndianPenalCode/S97.htm http://www.lawyersclubindia.com/forum/message_display.asp? quote=7013&group_id=1619

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