Chapter IV of the IPC deals with general exceptions. Second part of the chapter consisting of sections 96 to 106 deals with ‘right of private defence’. Section 96 establishes general principle of private defence by stating that nothing is an offence which is done in the exercise of the right of private defence.
(1) INTRODUCTION OF RIGHT OF PRIVATE DEFENCE
This part of general exceptions has to be read as a whole. Section 97 of IPC deals with the subject matter of right of private defence. The plea of right comprises the body or property of the person exercising the right or of any other person, and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to the property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under sections 96 to 98 and 100 to 106 is controlled by Section 99. To plea a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.[1]
To put it pithily, the right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger which is not self created. Necessity must be present, real or apparent.[2]
(1.1) FOUNDATION OF RIGHT OF PRIVATE DEFENCE
When enacting sections 96 to 106 of IPC, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. There is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits. The Supreme Court had observed that right of self defence should not be construed narrowly because it is a very valuable right and has a social purpose.
According to Hari Singh Gour, “self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order”. According to Bentham, “the right of defence is absolutely necessary”. It is based on the cardinal principle that it is the duty of man to help himself. The right to protect one’s own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.
It is well settled principle that when a person is exercising his right of private defence, it is not possible to weigh the force with which the right is exercised. The principle is common to all civilized jurisprudence. The legal position which has been crystallized from a large number of cases is that law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion.
The section 96 does not define the expression “right of private defence”. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence.
(1.2) GENERAL PRINCIPLES OF RIGHT OF PRIVATE DEFENCE
Right to private defence could even extend to causing death if there is real apprehension that aggressor might cause death or grievous hurt. The Supreme Court has enumerated some the following principles emerge on scrutiny of judgments on right of private defence.[3]
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well-settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The IPC confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
(2) RIGHT OF PRIVATE DEFENCE OF THE BODY AND OF PROPERTY
Section 97 of IPC says that every person has a right to defend –
(i) his own body, and the body of any other person, against any offence affecting the human body;
(ii) 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 or criminal trespass.
The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. However, the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not and answer to such a question depends upon host of factors like the prevailing circumstances at the spot; his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious.[4]
In a civilized society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence. No court expects the citizens not to defend themselves especially when they have already suffered grievous injuries.
(2.1) RESTRICTIONS ON RIGHT OF PRIVATE DEFENCE
Section 99 of IPC says that there is no right of private defence –
(i) 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.
A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. [Explanation I]
(ii) 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.
A person is not deprived of the right of the right of private defense against an act done, or attempted to be done, by the direction of an public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded. [Explanation II]
(iii) in case in which there is time to have recourse to the protection of the public authorities.
This section imposes restrictions on the right of private defence, in three different circumstances : (i) a person cannot claim his right of private defence against the act of a public servant acting in good faith in its official capacity; (ii) a person cannot claim his right of private defence against the act of a person acting upon the direction of a public servant acting in good faith in his official capacity; and (iii) right of private defence cannot be claimed, in a case in which there is time to have recourse to the protection of the public authorities.
(2.2) LIMITATION OF RIGHT
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. The Supreme Court observed that in the following circumstances right of private defence can be exercised: (i) there is no sufficient time for recourse to the public authorities; (ii) there must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned; and (iii) more harm than necessary should not have been caused.
Section 99 explains that the injury which is inflicted by a person exercising the right should commensurate with the injury with which he is threatened. Right of private defence cannot be used to do away with a wrong doer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence.[5]
The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. Where a case was of single gunshot which was not repeated, it cannot be said that accused persons exceeded their right of private defence in any manner. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not?[6] In judging whether accused has exceeded his right to private defence or not, the court has to take into account the weapons used.[7]
(2.3) BURDON OF PROOF IN CASE OF PRIVATE DEFENCE
The accused is not required to prove the plea of private defence of person beyond reasonable manner of doubt. The defence version regarding accused acting in self defence was liable to be proved by accused. It is well settled that the burden of establishing the plea of self defence is on the accused but it is not as onerous as the one that lies on the prosecution.
In order to find out whether right of private defence was available or not, the occasion for and the injuries received by an accused, the imminence of threat to his safety, the injuries caused by the accused and circumstances whether the accused had time to have recourse to public authorities are relevant factors, yet the number of injuries is not always considered to be a safe criterion for determining who the aggressor was. The defence has to further establish that the injury so caused on the accused probabilise the version of the right of private defence.[8]
A person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation, which is commensurate with the danger, apprehended to him where assault is imminent by use of force. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, a finding of fact.[9]
It was held that exercise of the right of private defence can never be vindictive or malicious. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.
The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.[10]
(2.4) PRIVATE DEFENCE AGAINST THE ACT OF A PERSON OF UNSOUND MIND :
Section 98 of IPC says 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 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 where that offence. The illustration to the sections reads as – ‘Z’, under the influence of madness, attempts to kill ‘A’; ‘Z’ guilty of no offence. But ‘A’ has the same right of private defence which he would have if ‘Z’ were sane.
Second illustration of the section explicates that this section is not limited to unsoundness of mind but also includes misconception. ‘A’ enters by night a house which he is legally entitled to enter ‘Z’, in good faith, taking ‘A’ for a house-breaker, attacks ‘A’. Here ‘Z’, by attacking ‘A’ under this misconception, commits no offence. But ‘A’ has the same right of private defence against ‘Z’, which he would have if ‘Z’ were not acting under that misconception.
(3) PRIVATE DEFENCE EXTENDS TO CAUSING DEATH OR ANY HARM
(3.1) PRIVATE DEFENCE OF THE BODY EXTENDS TO CAUSING DEATH
Section 100 of the Code enumerates the circumstances, in which causing death of a person in defending the body, is exempted from any penal provisions and acquit the person from the charge. The section says that the right of private defence of the body extends, under the restrictions mentioned in the section 99, 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:-
(i) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(ii) Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(iii) An assault with the intention of committing rape;
(iv) An assault with the intention of gratifying unnatural lust;
(v) An assault with the intention of kidnapping or abducting;
(vi) 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.
Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault.[11]
To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of the right of private defence.[12]
(3.2) PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH
Section 103 states that the right of private defence or 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:-
(i) Robbery; (ii) House-breaking by night; (iii) 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; (iv) 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.
The inmates clearly had a right of private defence against the intruders who tried to extract money by force.[13]
(3.3) RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH
According to section 101, if 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 104 says that if the offence, the committing or 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.
Accused caused grievous hurt by dangerous weapon; he is protected as he so in exercise of right of self defence under section 104 IPC. The court while acquitted the person said that guilt cannot be proved under section 326 IPC.[14]
(3.4) WHEN ACCUSED EXCEEDED RIGHT OF PRIVATE DEFENCE
While being chased by deceased appellant attacked on deceased caused fire incited wound, held exceeded the right of private defence, conviction under section 304 Part I Proper. [15] Attack by single blow on the neck of deceased proved fatal. Held accused exceeded right of private defence. [16]
If the accused had already dealt several blows on the deceased, he could not have been in a position to shoot at the accused persons. Having regard to some of the admissions made by the witness, it appears that the accused took forcible possession of the land some days ago. Therefore, even assuming that they come into possession after committing trespassing, if the deceased and others had gone to the land they cannot be held to be aggressors as pleaded by the defence.[17]
(3.5) RIGHT OF PRIVATE DEFENCE AGAINST DEADLY ASSAULT
According to section 106 of IPC grants right of private defence against deadly assault when there is risk of harm to innocent person. It says, 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 without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
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 of by so firing he harms any of the children.
(4) COMMENCEMENT AND CONTINUANCE OF THE RIGHT
(4.1) RIGHT OF PRIVATE DEFENCE OF THE BODY
Section 102 says 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.
Right commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. On the other hand, right lasts so long as the reasonable apprehension of the danger to the body continues. Injuries received by the Accused, the imminence of threat to his safety, the injuries caused by the Accused and whether the Accused had time to have recourse to public authorities are all relevant factors to be considered to find out whether right of private defence available to Accused or not.[18]
(4.2) RIGHT OF PRIVATE DEFENCE OF PROPERTY
According to section 105 the right of private defence of property commence when a reasonable apprehension of danger to the property commences and continues as follows-
| Property Against | Continues |
| Theft | 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. |
| Recovery | as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the offender causes of 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. |
| Criminal Trespass or Mischief | as long as the offender continues in the commission of criminal trespass or mischief. |
| House-breaking by night | as long as the house – trespass which has been begun by such house- breaking continue. |
Sections 102 and 105 of IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. It was observed by Supreme Court that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.
In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
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[1] Arjun v. State of Maharashtra, AIR 2012 SC 2181: (2012)5 SCC 530.
[2] Sikandar Singh v. State of Bihar, AIR 2010 SC 3580 : (2010) 7 SCC 477.
[3] Darshan Singh v. State of Punjab, AIR 2010 SC 1212 : (2010) 2 SCC 333
[4] Sikandar Singh v. State of Bihar, AIR 2010 SC 3580 : (2010) 7 SCC 477.
[5] Arjun v. State of Maharashtra, AIR 2012 SC 2181: (2012)5 SCC 530.
[6] State of U.P. v. Gajey Singh, (2009) 11 SCC 414 : 2009 (3) SCALE 337
[7] Madan Mohan Pandey v. State of Uttar Pradesh, (1991) Cr LJ 467 (SC).
[8] Sikandar Singh v. State of Bihar, AIR 2010 SC 3580 : (2010) 7 SCC 477.
[9] Butta Singh v. The State of Punjab, 1991CriLJ1464
[10] Salim v. State of Haryana, 2008 CrLJ 4327.
[11] Ranveer Singh v. State of M.P., AIR 2009 SC 1658 : (2009) 3 SCC 384
[12] Rizan and Anr. v. State of Chhattisgarh, 2003 CriLJ 1226.
[13] Kishore Shambhudata v. State of Maharashtra, AIR 1989 SC 1173.
[14] Jai Bhagwan v. State o Haryana, AIR 1999 SC 1083: 1999 (3) SCC 102.
[15] Suresh Singh v.State, AIR 1999 SC 1773 : 1999 (2) Crimes 42.
[16] Amar Singh v. State of Madhya Pradesh, 1997 SCC (Cr) 630.
[17] Khuddu v. State of Uttar Pradesh, AIR 1993 SC 1538 (1540).
[18] Ranveer Singh v. State of M.P., AIR 2009 SC 1658 : (2009) 3 SCC 384