7- Private Defence

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Every person has the right to defend his life, liberty and property. In other words every person has got the right to help himself. In India, the right of private defence has been given a wider scope, considering the peculiar state of society. When compared to English law of private defence Indian law is wider in scope. Difference between the two is, in India one can extend his right of private defence even for the protection of life and property of strangers, which is not available in English law.

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The law of private defence is found on two principles. They are; 1) Every one has the right to defend one‘s own body and property and also the right to defend others body and property at the time of immediate necessity. 2) The right cannot be used for causing harm to another person. The right of private defense is available to a person who is in immediate necessity. This right should not be used to seek revenge. In other words ―the right of private defence can be used as a shield and not as a sword.

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In State of Punjab v. Karnail Singh(AIR 1995 SC 1970), the Supreme Court held that the evidence revealed that out of the three deceased, two were fired from a close range and the third was shot in the back, showing that he was guilty. The accused‘s plea of selfdefence was rejected and he was convicted and sentenced to life imprisonment.

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Section 96 lays down that nothing is an offence which is done in the exercise of the right of private defence. This Section does not define the right of private defence but simply declares the right. This right is available against the person or persons from whom imminent danger to life or property is apprehended.

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Section 97 provides that the right of private defence is available to defend person as well as property. The right consists of defending the body or property of the person exercised in the case of any offences in relation to property. Property includes movable as well as immovable property of himself or of any other person.

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Right of private defence does not extend to the infliction of more harm than that is necessary. Similarly it is not available to a person who has first started the attack. In order to determine whether the accused acted in exercise of the right of private defence, it is necessary to find who started the assault first. If a person is held to be the aggressor, no right of private defence is available to him

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As per Section 98 the right of private defence is not affected by the fact that the threatened act does not constitute an offence technically because of the agent‘s youth, want of maturity of understanding. Unsoundness of mind, or misconception. ◦ For eg., if a drunken person attacks either the person or property of another, any person is entitled to exercise the right of private defence.

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The only limitation is that more than what is necessary should not be inflicted.

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Section 99 states the circumstances in which there is no right of private defence. In other words, the limits of the right of private defence are stated in Section 99. The first two clauses of this Section state that there is no right of private defence against an act done, or attempted to be done, by or by the direction of public servant. The public servant must have done the act in good faith under the colour of his office, even though that act may not be justifiable by law.

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In Dhara Singh v. Emperor (1974), the police entered a house at night to arrest the accused. The accused did not know who they were, and he fired at them. It was held that the accused had a right of private defence because he was not aware that he was a public servant. If public servant has a different uniform his position would be known to others and in such circumstance there is no right of private defence. Like public servants, those who are acting under the direction of a public servant are also protected. The private person who is acting under the direction of a public servant must state his authority.

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Third clause lays down that there is no right of private defence if there is time to have recourse to the protection of public authorities. As per the fourth clause more harm than what is necessary should not be inflicted while exercising the right of private defence. There is no hard and fast rule which determines the amount of harm which can be caused.

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Section 100 provides the circumstances in which the right of private defence may go to the extend of causing of death. This right arises only if an offence against the human body is committed, attempted or threatened. The right can be exercised subject to the restrictions provided under Section 99.

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In Balbir Singh v. State (1959), it was held that before the life of a person can be taken on the plea of private defence the following four conditions must be satisfied: ◦ 1) The accused must be free from fault in bringing about the encounter; ◦ 2) There must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity; ◦ 3) There must be no safe or reasonable mode of escape by retreat; and ◦ 4) There must have been a necessity for taking life.

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As per Section 100 death can be caused under the following cases; 1) assault which causes fear of death;(S.302) 2) assault which causes fear of grievous hurt;(S.320) 3) assault with intent to commit rape;(S.375) 4) assault with intent to commit unnatural offence(S.377) ◦ 5) assault with the intention of kidnapping or abduction (S.359,362) ◦ 6) assault with the intention of wrongful confinement.(S.340) ◦ ◦ ◦ ◦

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In Yeshwant Rao v. State of M.P.(AIR 1992 SC 1683), the minor daughter of the accused was raped. The deceased gripped her and had sexual intercourse with her. The accused seeing his minor girl being raped by the deceased, hit the deceased with a spade. The deceased on trying to flee also fell and hit himself and died. 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 S. 376, IPC, and hence, the father in defence of the body of his daughter was justified in exercising his right of private defence. The accused was aquitted.

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In Viswanath v. State of U.P.(AIR 1960 SC 67), the appellant‘s sister was being abducted by her husband from her father‘s house. The husband compelled her by force to accompany him even though she was not willing. She was also assaulted by her husband. The appellant prevented the husband from abducting his sister by causing his death. It was held that he had the right of private defence of the body of his sister.

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S. 103 provides that the circumstances in which death can be caused while defending the property. Here also the right can be exercised subject to the restrictions provided under Section 99. The offences states in Section 103 are: ◦ 1) robbery;(S.390) ◦ 2) house breaking by night;(S.446) ◦ 3) mischief by fire on any building, tent or vessel used as a place for the custody of property;(S.436) ◦ 4) Theft, mischief or house-trespass reasonably causing apprehension by death or grievous hurt.(Ss. 378,425,442)

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In Gurudatta Mat v. Uttar Pradesh(AIR 1965 SC 257), the deceased had title to a plot, and the appellant had cultivatory possession of it. The deceased with a few police constables and labourers went to the field and were harvesting the crops. The accused with 25 persons came there with guns, spears and lathis and shot dead three persons and injured others. It was held that the accused had no right of private defence of property to cause death.

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Sections 101 and 104 provide that any harm other than death can be caused if the offence is not one coming under Sections 100 or 103. Commencement and continuance of the right of private defence is stated in Sections 102 and 105. ◦ 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, even though the offence might not have been committed. The right continues so long as the apprehension of danger to the body continues .

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In the case of defence of person a mere threat is sufficient. But in the case of an attack on property there must be something more than a mere threat and it must be a threat which is so imminent as to amount to an attempt to commit the offence.

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S. 106 provides the right of private defence against a deadly assault when there is risk of harm to innocent person. If a man is being assaulted in such a manner that he reasonably apprehends death, and nothing else, one can defend him even at the cost of harm to an innocent person.