Author : Hari Haran.V
Commonly, laws are a set of rules and guidelines which are created, maintained, and enforced by the State to govern and regulate the behavior of people. Laws are made for the welfare of the people and to ensure their general-legal rights are protected from other public (including government) as well as private authority. As an Indian citizen, certain basics laws and rights must be known to all and follow the same by every citizen in India like sections 128,129,185,202 of the motor vehicles act, income tax act, etc.
With the knowledge of certain basic laws and rights, it is also necessary and important for all people to know about the right of private defence [Ss. 96 – 106] enacted under the Indian Penal Code, 1860. Since nowadays brutal murders are increasing in the case of theft, rape, etc. The law allows the victim to protect themselves from the danger by use of force. Of course, the defence has taken (use of force) should be reasonable and cause less harm to the assailant. But it is decided based on the harm imposed by the assailant whether the self defence by a victim can be taken to what extent? Every citizen must aware about the right and extent of self-defence on different difficult circumstances which helps them to defend themselves from the brutal attack caused by the assailants.
Self –defence is a virtue, Sole bulwark of all right – Lord Byron
PRIVATE DEFENCE UNDER IPC:
The private defence is considered as one of the general defences taken by an individual to protect him from the harm caused by the other. The right of private defence arises from the necessity and necessity is to prevent oneself from the danger. Necessity differs from the private defence. In necessity lesser harm is caused to innocent people to prevent a greater evil. But in private defence harm is caused by an assailant who himself a wrongdoer. Necessity in a wider sense, it is cannot be said that wherever there is a necessity there is a right of private defence.
Section 96 of the Indian Penal Code, 1860 mentions “Nothing is an offence which is done in the exercise of the right of private defence”. It is cleared that there is no offence when the commencement of a harmful act (use of reasonable force) is used to prevent ourselves from danger. When one uses reasonable force that is necessary for self-defence then he will not be liable for the harm caused by him. Since the use of force is justified for the purpose of defence only. There is no guilt and no criminal intent for private defence so one cannot be made liable for culpable homicide and murder when the exercise of private defence leads to death. The burden of proof of self-defence is always lying on the accused.
“Self defence is not just a set of techniques; it’s a state of mind, and it begins with the belief that you are worth defending”- Rorion Gracie.
Law makes sure that the right of private defence should not be misused for personal vengeance, etc. Therefore, certain limitations are made under the Indian Penal Code to exercise the right of private defence. A complete private defence can be claimed only when the following limitations are satisfied:
- If there exists sufficient time for recourse to public authorities, the right cannot be accessible before the court of law
- That there must be a reasonable fear of death or grievous hurt or hurt on the body or damage to the property that could not be averted.
- The first assault or battery (attack) should not be caused by the accused.
- The threat made to the person or property must be a real and immediate one.
- The defence taken should not cause more harm and must be reasonable harm which is enough to protect and defend him.
Section 97 of IPC, classifies the right of private defence into two types namely,
- Private defence of body and
- Private defence of property.
The first right confers on one’s own body and the body of any other individual, against any offences that affect the human body or attempts the same to do so. The second right confers on the property, whether it is movable or immovable, of one’s own or any other persons, 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 trespass1. So, it is understood that nothing is an offence which is done in the exercise of private defence to protect and prevent the human body or property.
SCOPE & EXTENT:
“Ignorantia facti excusat ignorantia juris non excusat”- this is a simple legal maxim known by every law graduate this principle states that ignorance of fact maybe excusable but ignorance of law is not excusable before the court of law. The working of this principle differs in many cases. It is impossible to make people aware of all laws; such a way if failure of performance can be justified and excused with minimum penalty. Even a Judicial aspirant cannot know all laws all the time. So it is difficult to create awareness and to give legal knowledge about all the existing laws to the ordinary public. This maxim is not blindly applied in all cases it depends on the facts of the case. However, the scope of maxim looks simple at the same time its extent and application are vast and vague.
Likewise, the scope of self-defence also looks simple as outside since only reasonable harm is caused to defend ourselves. But inside, under certain circumstances, the extent of exercise of private defence can cause death to the assailant. The IPC provides the extent of private defence not only to cause death and also to cause any harm other than death which is considered to be the most aggressive form of hurt like grievous hurt, loss of limb or hand, etc based on the situation of the attack.
EXERCISE OF PRIVATE DEFENCE OF BODY EXTENDS TO CAUSING DEATH:
Section 100 of the Indian Penal Code provides the exercise of right of private defence of body extends to causing death of the assailant. However, the right of private defence of body extends, under the restrictions mentioned in section 99 of IPC. It also directs when this right can be invoked to voluntary causing of death or of any other harm to the assailant.
There are only six rights under IPC, which allows in exercising the private defence of death. After the Criminal Law Amendment Act, 2013 the seventh right was inserted on the recommendations of the Justice Verma Committee. For any of the seven offences of following occasions this right under s. 100 of IPC can be exercised, [namely:–
- Firstly – 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.]2
The above offences clear that one can exercise the right of private defence and can cause death to the assailant when there is a fear of apprehension of death or grievous hurt or fear of assault with intent to commit rape or fear of assault with intent to gratify his unnatural lust or fear of assault with intent to kidnap or abduct or fear of assault with intention of wrongful confinement or fear of throwing/administering or attempting to throw/administer acid to cause grievous hurt.
As mentioned in s.97 of IPC this right not only refers to one’s own body but also others. So, there is no rule that one should not help the other whose life is in imminent danger. Therefore, one can help the other to save them from danger. At that time the right of private defence implies the person who saves the other. To ensure that both the lives are saved he can exercise the right of private defence and kill the assailant which will not impose any criminal penalty on him.
The exercise of right of private defence saves the victim from being accused of committing culpable homicide and murder. Since, there is no guilt and criminal intention to kill the assailant. The act done is a complete private defence and cannot be sued for culpable homicide and murder.
EXERCISE OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH:
Section 103 of the Indian Penal Code describes the right of private defence of property extends to causing death under certain restrictions mentioned in section 99. The act of voluntary causing death or of any other harm to the assailant i.e. wrong-doer can be exercised only on the offences mentioned in this section. Committing of offence or attempting to commit on any of the following occasions one can use the right of private defence to kill the assailant, [namely:–
- Firstly – 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.]3
However, the property whether movable or immovable mentioned here also refers to not only one’s own but also others. Therefore, one can exercise the right of private defence extends to causing death to protect and safeguard one’s or others property being robbed or act of house-broken to rob certain property or any mischief by fire committed on any place of residence to cause damage to the property which is in custody or for theft or house-trespass causing apprehension of death and grievous hurt. Even the act done under s.103 is a complete private defence and cannot be made liable under culpable homicide [s.299] or murder [s.300].
COMMENCEMENT & CONTINUANCE:
Under s.102 of the Indian Penal Code, 1860 the right of private defence of body commences when there is a fear of danger to the body. It may be from any assault or threat to commit offence or such offence may not be committed. He doesn’t need to wait to get the first attack from the assailant and can exercise his private defence to prevent him from the first attack itself. It is mentioned that to exercise private defence there need not be any actual crime taken place only fear of reasonable apprehension is enough. This right continues as long as the fear of apprehension of danger to the body continues.
S.103 describes the right of private defence of property starts/commences when there is a reasonable apprehension of danger to the property. The right of private defence against robbery continues as long as the offender causes or attempts to cause death or hurt or wrongful restraint or fear of immediate death or immediate hurt or immediate wrongful restraint. The private defence against house-breaking continues until the house-trespass by such assailant ends. The private defence against mischief by fire committed on any place of residence through criminal trespass continues as long as the assailant continues in his act of criminal trespass or mischief. The right of private defence against theft continues till the assailant withdraws the property or when the public authorities arrived to help at those circumstances or the property has been completely recovered.
RESTRICTIONS UNDER S. 99:
Before exercising the right of private defence everyone must know when the right gets shutdown (cannot be used). Section 99 of the Indian Penal Code makes the right of private defence unavailable to the people of India. One cannot claim the right of private defence for an act that does not cause any reasonable fear of death or grievous hurt. If it is done or attempts to be done by a public servant who is considered to be in official duty i.e. acting under the colour of his office and believed to be in a good faith even though the act or direction may not be strictly justified by law. The act which is not justifiable by law must not be taken for granted. The public servant must not act illegal and without jurisdiction under any circumstances.
Also, there is no right of private defence in cases when there is time to have recourse to the protection of the public authorities. It is also must that the extent of harm caused is reasonable and necessary to inflict for the purpose of defence only.
LAW NEEDS BRAVE CITIZENS IN SOCIETY:
In India, there is no law that suggests a person should run away from the inevitable danger before the use of private defence. One should not expect official authorities to save him all the time. When there is not sufficient time for recourse to public authorities, he should stand on his ground and exercise self-defence to protect himself from the imminent danger. Jai Dev v. State of Punjab4, the court stated that law does not anticipate any citizen to be a yellow-belly and to leave his own house at the mercy of the burglar.
Brutal murders are rising rapidly in India. Most of the death cases are rape, vengeance killing, and theft. Prevention of sexual violence against women is necessary and all must make sure to help them to live freely in a better society. The knowledge of the private defence of body or property extent to causing death for those offences must be known by everyone. And they should exercise that right without fear. It is cleared that they are not considered as accused since the right is pure of preventive and not punitive5. The knowledge on this right makes them act brave with courage and use of the presence of mind in dangerous circumstances to protect themselves and others.
“Bravery is the capacity to perform properly even when scared half to death”
-Omar N. Bradley
In the case of Vishwanath v. State of U.P6, some women were being forcibly abducted. Their relative saw this and while rescuing them he caused injury to the assailant. It was held that what he did was one in the exercise of the right of private defence and he cannot be punishable.
In Vishvas Aba Kurane v. State of Maharashtra7, it was held that when both the parties are fighting and there is no evidence to prove as who assaulted first, no party is entitled to plead a right of private defence and each party is liable for the actions caused by them. In the case of, V. Subramani v. State of T.N8, the court said that the right of private defence has to be pleaded and proved by the accused only.
In Bayadas Bowri v. State of Assam9, the accused was a one-handed person. He was attacked with a bamboo and was severely injured. To escape from further attacks from the aggressor he gave only one blow with a penknife on the aggressor. The blow fell on a vital part of the aggressor’s body resulting in death. The court held he had not exceeded his right of private defence since it was a case of life and death struggle, therefore the act fell within the ambit of clauses (I) and (II) of s.100 IPC. Hence, he could not be held guilty of any offence. And it was held that the aggressor has no right of private defence in the case of Amrik Singh v. State of Punjab10.
In Public Prosecutor v. Suryanarayana Reddi11, the private defence was not granted by the court under restrictions under s.99 of IPC. Since the customs officers were the public servant, acting in good faith under the colour of his office they has right to search and check the goods. The accused has no right to attack the public servant since it is proved that the goods found were to be smuggled from Yemen to Indian Territory.
In Mammun v. Emperor12, the armed five accused went for a walk at pleasant night. They saw the deceased who was chopping rice on their field. The deceased undergone severe injuries with minor wounds and passed away at the time. Accused pleaded extent of private defence of the property causing death under s.103 of IPC. But the court canceled their pleadings and held them guilty of murder. Since there was sufficient time to inform to police were the restrictions mentioned under s.99 of IPC or they can pull him out of the field. They caused unnecessary death for which they can’t take the right of private defence.
In R v. Hallowary13, a servant finds a boy stealing wood from his master’s ground, so he made bound the boy to his horse’s tail and beat him. The horse took fright, ran, and dragged the boy. The boy’s shoulder was broken and he died of it. It was held that the servant exceeded his right of private defence under s.99 of IPC in using more force (force used was not reasonable) and found guilty of murder.
In the State of U.P. v. Gajey Singh14, the defendant was being hit upon his head with a sharp-edged weapon; hence there was a danger to life causing death under clause (I) of s.100 IPC. He fired a single gunshot which caused the assailant to death. It was held that the defendant was not guilty of murder and exercise of extent of private defence causing death under this circumstance was valid and justifiable under law.
In Jagtar Singh v. State of Punjab15, it is said that only the proof of fear of any act mentioned under the occasions of s.100 of IPC happens to the accused is enough to succeed in his plea of right of private-defence of body before the court of law and his action of using reasonable force is excusable and justified by law to defend him. He need not to prove all other queries arises under such dangerous circumstances.
In Jassa Singh v. State of Haryana16, it was held that criminal-trespass is not mentioned under the offences in s.103 of IPC. Only any mischief or house-trespass of one’s own or others property is punishable and the accused can exercise the right of private defence for the same. Since no one has rights on open land the right of self-defence of property under s.103 cannot be invoked on the open land.
In Abdul Kadir v. State of Assam17, the two deceased persons and their men had trespassed into the property and were about to harvest the paddy. Theft and mischief were either being committed or threatened to be committed. When approached them, they wanted to forcibly commit the offence of theft and mischief. The accused persons wanted to exercise their right, grievous blows were given to them by the deceased. To defend him the accused caused death to the two assailants. It was held that the right of private defence of body and property was available to the accused persons, which under the given occasions extend to cause death in s.100 and s.103 of IPC. It is cleared that exception under s.99 of IPC will not be applicable in this case.
“You do not have the right to take another human’s life, unless it’s in strict self-defence”
– Michael Moore
The only knowledge of private defence under IPC (Indian Penal Code) creates a virtuous opportunity for brave and willful citizens to escape from brunt activity which is considered endanger to life and to prevent their property from being theft. It is in the hands of people to use self-defence at the required time. It is unforeseeable because there shall not be a good opportunity available to all people to defend them but knowing the right of extent of private defence gives confidence and hinders them to be motivated at hard times. Every people should make sure that through exercising this right given by law, the cases of death in vengeance killing, rape and theft must be decreasing in future India.
- M. GANDHI’S, INDIAN PENAL CODE, pg.154, 4rth edition, EBC Publishing (P) Ltd., 2017.
- The Indian Penal Code, 1860 (s.100)
- The Indian Penal Code, 1860 (s.103)
- Jai Dev v. State of Punjab, AIR 1963 SC 612.
- Shankar Balu Patil v. State of Maharashtra, (2007) 12 SCC 450.
- Vishwanath v. State of U.P, AIR 1960 SC 67.
- Vishvas Aba Kurane v. State of Maharashtra, 1978 SCC (Cri) 125.
- Subramani v. State of T.N, 2005 SCC (Cri) 1521.
- Bayadas Bowri v. State of Assam, 1982 Cri LJ 213.
- Amrik Singh v. State of Punjab, 1994 SCC (Cri) 387: 1993 Cri LJ 2857.
- Public Prosecutor v. Suryanarayana Reddi, 1937 MWN 741.
- Mammun v. Emperor, AIR 1917 Lah 347.
- R v. Hallowary, (1628) 1 East PC 327.
- State of U.P. v. Gajey Singh, (2009) 3 SCC (Cri) 1412: 2009 Cri LJ 2274.
- Jagtar Singh v. State of Punjab, AIR 1993 SC 970.
- Jassa Singh v. State of Haryana, 2002 SCC (Cri) 363.
- Abdul Kadir v. State of Assam, 1985 Supp SCC 603.
- M. GANDHI’S, INDIAN PENAL CODE, 4rth edition, EBC Publishing (P) Ltd., 2017.