Culpable Homicide

July 26, 2017 | Author: nitin1661 | Category: Manslaughter, Negligence, Crime & Justice, Crimes, Self Defense
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A Project Report On Culpable Homicide

Prepared By: Harish B. Chavda


Contents 1. What is Homicide? 2. Culpable Homicide 3. Lawful and Unlawful Homicide 4. Circumstances For Culpable Homicide 5.

Principle of Criminal Liability For Negligence

6. Rash and Negligent Act 7.

Defences Against Culpable Homicide

8. Conclusion

Objectives of the Course 2

The primary objective of criminal law is to maintain law and order in the society and to protect the life and liberty of people. It is for this reason that people place their ultimate reliance on this branch of law for protection against all injuries that human conduct can inflict on individuals and institutions. Due to these reasons, the penal law cannot afford to be weak, ambiguous or ineffective. Nor can it be harsh and arbitrary in its impact. The application of criminal law has to be uniform regardless of any discrimination on grounds of class, caste, religion, sex or creed etc. of either the criminal or the victim. The subject of Criminal Law-II has been so designed as to generate critical thinking among students about the stated objectives of criminal law and to enable them to scrutinize the recent developments and changes that have taken place in the field. The primary objectives of this course are:1. To familiarize the students with the key concepts regarding crime and criminal law. To expose the students to the range of mental states that constitute mens rea essential for committing crime. 2.


To teach specific offences under the Indian Penal Code.

4. To keep students abreast of the latest developments and changes in the field of criminal law.


What is Homicide? Homicide from the earliest times has fascinated the human mind and has always been considered as most heinous of offences. The word homicide has been derived from the latin word ‘homo’ which means a man, and ‘caedere’ which means to cut or kill. Thus, homicide means the killing of a human being, by a human being. But then, not all cases of homicide are culpable as all systems of law do distinguish between lawful and unlawful homicide For instance, killing in self defence or in pursuance of a lawful authority or by reason of mistake or fact, is not culpable. Likewise, if death is caused by accident or misfortune, or while doing an act in good faith and without any criminal intention for the benefit of the person killed, the man is excused from criminal responsibility for homicide. Further in some cases the accused may be punished for lesser offences (for e.g. hurt) even though death has resulted, if the injury resulting in death though voluntarily caused was not likely to cause death. For example, A gives B a blow and B, who suffers from an enlarged spleen of which A was not aware, dies as a result. A is not guilty of Culpable Homicide as his intention was merely to cause an injury that was not likely to cause death.


Culpable Homicide The crime of manslaughter is termed as Culpable Homicide. It is a term in the law of Scotland and England that covers a number of criminal homicides equivalent to manslaughter in legal criminal jurisdictions. Section 299 of the Indian Penal Code deals with Culpable Homicide and it is stated as follows – “Whoever causes death by doing an act with the intention of causing death, or with the knowledge that he is likely by such act to cause death, commits the offence of Culpable Homicide.” The Penal Code has first defined Culpable Homicide simpliciter (Section 299, I.P.C) termed as manslaughter under English law which is genus, and then murder (Section 300, I.P.C) which is species of homicide. Explanation 1 – A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2 – Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3 – The causing of the death of a child in the mother’s womb is not homicide. But it may amount to Culpable Homicide to caused the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or completely born.


Homicide is the killing of a human being by a human being. It is either a) lawful, or b) unlawful. a) Lawful Homicide: It is also known as Simple Homicide, includes several cases falling under the General Exceptions. The death is caused in one of the following ways:Ø Where death is caused by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act, in a lawful manner, by lawful means, and with proper care and caution (s. 80) Ø Where the death is caused justifiably, that is to say, i. By a person, who is bound, or by mistake of fact in good faith believes himself bound, by law (s.76) ii. By a Judge when acting judicially when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. (s.77) iii. By a person acting in pursuance of the judgement or order of a Court of Justice. (s.78) iv. By a person who is justified or who by reason of a mistake of fact, in good faith, believes himself to be justified by law.(s.79) v. By a person acting without criminal intention to cause harm and in good faith, for the purpose of preventing or avoiding other harm to person or property (s.81) vi. Where death is caused in the exercise of the right of private defence of person or property (ss. 100, 103) Ø Where death is caused by a child, or person of unsound mind, or an intoxicated person as will come under ss. 82,83,84 and 85. Ø Where death is caused unintentionally by an act done in good faith for benefit of the person killed, when i. He or, if a minor or lunatic, his guardian, has expressly or impliedly consented to such an act (ss. 87, 88); or 6

ii. Where it is impossible for the person killed to signify his consent or where he is incapable of giving consent, and has no guardianfrom whom it is possible to obtain consent, in time for the thing to be done with benefit. (s.92) b) Unlawful Homicide : Culpable Homicide is the first kind of unlawful homicide. It is the causing of death by doing: i. An act with the intention of causing death. ii. An act with the intention of causing such bodily injury as is likely to cause death; or iii. An act with the knowledge that it was likely to cause death. Without one or other of those elements, an act, though it may be in its nature criminal and may occasion death, will not amount to the offence of Culpable Homicide.


Culpable Homicide – Essential Elements: Culpable Homicide is the first kind of unlawful homicide as defined in Section 299, I.P.C it purports to define and explain as to when an act of causing death constitutes Culpable Homicide. The important elements are:1) Causing of death of a human being. 2) Such death must have been caused by an act i. With the intention of causing death; or ii. With the intention of causing such bodily injury as is likely to cause death; or. iii. With the knowledge that the doer is likely by such an act to cause death. The fact that the death of a human being is caused is not enough. Unless one of the mental states mentioned in ingredient is present, an act causing death cannot amount to Culpable Homicide. Thus where a constable who had loaded but defective gun with him wanted to arrest an accused who was going on a bullock cart by climbing on the cart and there was a scuffle between him and the accused and in course of which the gun went off and killed the constable, it was held that accused could not be held guilty of Culpable Homicide.


Circumstances For Culpable Homicide a) Causes Death: In order to hold a person liable under the impugned Section there must be causing of death of a human being as defined under Section 46 of the Code. The causing of death of a child in the mother’s womb is not homicide as stated in Explanation 3 appended to Section 299, I.P.C. But the person would not be set free. He would be punishable for causing miscarriage either under Section 312 or 315 I.P.C depending on the gravity of the injury. The act of causing death amounts to Culpable Homicide if any part of that child has been brought forth, though the child may not have breathed or been completely born. The clause ‘though the child may not have breathed’ suggests that a child may be born alive, though it may not breath (respire) , or it may respire so imperfectly that it may be difficult to obtain clear proof that respiration takes place. Causing of death must be of a living human being which means a living man, woman, child and at least partially an infant under delivery or just delivered. b) By Doing An Act With The Intention Of Causing Death: Death may be caused by a hundered and one means, such as by poisioning, drowning,striking,beating and so on and so forth. As explained under Section 32, I.P.C the word ‘act’ has been given a wider meaning in the Code in as much as it includes not only an act of commission, but illegal omissions as well and the word ‘illegal’ is applicable to everything which is an offence or which is prohibited by law, or which is prohibited by law, or which furnishes ground for civil action (s.43). Therefore death caused by illegal omission will amount to Culpable Homicide. i. Death caused by effect of words on imaginations or passions: The authors of the Code observe : “ The reasonable course, in our opinion , is to consider speaking as an act, and to treat A as guilty of voluntary Culpable Homicide, if by speaking he has voluntarily caused Z’s death, whether his words operated circuitously by inducing Z to swallow a poison or throwing Z intoconvulsions.” c) With The Intention Of Causing Such Bodily Injury as is likely to cause death: . The word ‘intention’ in clause (a) to Section 299, I.P.C has been used in its ordinary sense, i.e., volitional act done without being able to forsee the consequence with certitude. The connection between the ‘act’ and the death caused thereby must be direct and distinct; and though not immediate it must not be too remote. If the nature of the connection between the act and the death is in itself obscure, or if it is obscured by the action of concurrent causes, or if the connection is 9

broken by the intervention of subsequent causes, or if the interval of time between death and the act is too long, the above condition is not fulfilled. Where a constable fired five shots in succession at another constable resulting in his death, it was held that it would be native to suggest that he had neither intention to kill nor any knowledge that injuries sufficient to kill in ordinary course of nature would not follow. His acts squarely fell in clauses 2,3 and 4 of s.300, I.P.C i.e Culpable Homicide amounting to murder. d) With the knowledge that he is likely by such act to cause death : ‘Knowledge’ is a strong word and imports ceratinity and not merely a probability.If the death is caused under circumstances specified under Section 80, the person causing the death will be exonerated under that Section. But, if it is caused in doing an unlawful act, the question arises whether he should be punished for causing it. The Code says that when a person engaged in the commission of an offence, without any addition on account of such accidental death. The offence of Culpable Homicide supposes an intention, or knowledge of likelihood of causing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt, or simple hurt. It is only where death is attributed to an injury which the offender did not know would endanger life would be likely to cause death and which in normal conditions would not do so notwithstanding death being caused, that the offence will not be Culpable Homicide but grievous or simple hurt. Every such case depends upon the existence of abnormal conditions unknown to the person who inflicts injury. Once it is established that an act was a deliberate acct and not the result of accident or rashness or negligence, it obvious that the offence would be Culpable Homicide. e) Death Caused of Person Other Than Intended: To attract the provisions of this Section it suffices if the death of a human being is caused whether the person was intended to be killed or not. For instance, B with the intention of killing A in order to obtain the insured amount gave him some sweets mixed with poison. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that B as liable for murder of the children though he intended to kill only A.


f) Death Caused Inadvertently without Intention While Doing an Unlawful Act: It has been clearly stated in I.P.C that a person will not be liable for Culpable Homicide, if he causes the death of a person while doing an unlawful act, provided he did not intend to kill or cause death by doing an act that he knew was likely to have that effect. On the other hand, under English law, if a person whilst committing an unlawful act accidently kills another, he would be liable for manslaughter or murder according to whether his act constituted a felony or misdemeanour. g) Consent is not a defence to Manslaughter: The House of Lords in R v Walker held that the respondent a truck driver carrying illegal immigrants will be criminally responsible for involuntary manslaughter, if the act results in death, even if the victim has consented to take such risk engaged in some joint unlawful activity. In this case the defendant, truck driver ( a Dutch national) drove a lorry from Rotterdam (Netherlands) to Zeebrugge (United Kingdom). The lorry had been loaded with a refrigerated container in which 60 Chinese (illegal immigrants) had been hidden to conceal the illegal human cargo behind a load of tomatoes. The container was sealed apart from a small air vent which was closed for 5 hours prior to the ferry crossing to Dover to preserve secrecy. On disembarkation at Dover (in England) the customs officers examined the container and discovered the bodies of 58 immigrants, who had suffocated to death. Wacker was charged with 58 offences of manslaughterand conspiracy to facilitate the entry of illegal entrants into United Kingdom. Applying the doctrine of negligence( ex turpi causa non oritur actio) for causing death of the victims the trial convicted and sentenced the respondent to 6 years imprisonment for each the manslaughter charges to run concurrently and eight years imprisonment for the conspiracy to facilitate entry of illegal immigrants with a total of 14 years. This decision was upheld by the House of Lords as well. Section 301; If a person, by doing anything which he intends or knows to be likely to cause death, commits Culpable Homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the Culpable Homicide committed by the offender is of the description of which it would have been if he had caused the death of the person, whose death he intended or knew himself to be likely to cause..


1) Doctrine of Transferred Malice: Blow aimed at the intended victim, if alights on another, offence is the same as it would have been if the blow had struck the intended victim. This Section lays down that Culpable Homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely, to kill. This Section embodies what the English authors describe as the Doctrine of Transfer of Malice or the transmigration of motive. Under this Section, if A intends to kill B but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is, by law attributed to him. Where the accused was deliberately trying to shoot a fleeing man who had criticized his father in a School Committee Meeting but unfortunately his own maternal uncle came in between him and the intended victim and thus got killed, it was held that the act of the accused ws nothing but murder under s.302 read with s.301, I.P.C Section 304: Whoever commits Culpable Homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or causing such bodily injury as is likely to cause death; Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. This Section provides punishment for Culpable Homicide not amounting to murder. Under it there are two kinds of punishments applying to two different circumstances: a) If the act by which death is caused is done with the inetention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine. b) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.


Where the deceased , an old man with an enlarged and flabby heart, was lifted by the accused during a quarrel and thrown on the ground from some distance with sufficient force and the deceased got his ribs fractured and died of a rupture of the heart, it was held that the offence fell under Section 325 rather than 304 as the accused had no intention or knowledge to cause death. Section 304 A: Whoever causes the death of any person by doing any rash or negligent act not amounting to Culpable Homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with finr, or both. The original Penal Code had no provision for punishment in those cases where a person causes death of another by negligence. That is to say, liability for causing death was limited only to cases of murder and Culpable Homicide not amounting to murder. Section 304A was inserted in the Penal Code by the Indian Penal Code Act 27 of 1870 to cover those cases which under English law are termed Manslaughter by negligence. The impugned Section provides punishment of either description for a term which may extend to two years, or fine, or both in case of homicide by rash or negligent act. The Law Commission of India in 1971 on the basis of strong demand for the increase in punishment for the offences under this Section recommended for enhancements of the sentence of imprisonment upto 5 years. But it was not implemented.


Principle of Criminal Liability For Negligence: Adomado The House of Lords in Adomado while dismissing the appeal against conviction of an anesthetist for gross negligence during an eye operation had failed to notice that the supply of oxygen has been discontinued, resulting in death of the patient held that to establish negligence the general principles of law as follows may apply: Ø Whether or not defendant was in breach of a duty of care owed to the victim who had died. If so, the general principle of ex turpicausa applied. Ø Whether that breach of duty caused the death of the victim: If so, should that breach of duty be categorized as gross negligence and therefore as a crime. Ø This will depend upon the seriousness of the breach committed by the defendant when the breach occurred. Ø In essence, it is permissible for gross negligence manslaughter to be established without necessity to enquire into defendant’ state of mind.



To bring a case of Homicide under Section 304A I.P.C the following condition must exist, viz; 1) There must be death of the person in question 2) The accused must have caused such death; and 3) That such act of the accused was rash or negligent and that it did not amount to Culpable Homicide. The requirement of Section 304A, I.P.C are that the death of a person, must have been caused by doing only rash or negligent act, and that there must be a direct nexus between death of a person and the rash and negligent act of the accused, Section 304 A. I.P.C will not apply. Where the accused was allowed to manufacture of wet paints in the same room where varnish and turpentine were stored, fire broke out due to a proximity of open burners to the stored varnish and turpentine. The direct or proximate cause of the fire which resulted in 7 deaths was the act of one Hatim. Apparently in a hurry, he had perhaps not allowed the resin to cool sufficiently and poured the turpentine too quickly.


The deaths were therefore not directly the result of the rash act on the part of the accused, nor one that was proximate and efficient cause without the intervention of another’s negligence. The accused was therefore acquitted of the offence under Section 304 A and held liable for negligent conduct with respect to fire or combustible matter is punishable under Section 285 of the I.P.C. It must be causa causans(immediate cause); it is not enough that it may have been the causa sine qua non (a necessary or inevitable cause).

Rash and Negligent Act A rash act is primarily an over hasty act. It is opposed to deliberate act. It basically denotes want of proper care and caution and connotes and overt act with a consequence of risk that evil consequences might follow but with hope it will not happen. Negligence is a breach of duty imposed by law. Negligence may be either civil or criminal negligence depending upon the nature and gravity of the negligence.Criminal negligence is gross and culpable, neglect or failure to exercise reasonable and proper care to guard against injury, either to public generally, or to an individual in a particular, which having regard to al the circumstances out of which charge has arisen, it was duty of person to have adopted. A Person Convicted Under Section 304A, I.P.C is not entitled to the benefit of probation and lenient Punishment- The apex court in Dalbir Singh, rejected the plea of the accused driver for invocation of the benevolent provision of Section 4 of the Probation of the Offenders Act, 1958. Medical Negligence: There is an “implied undertaking” by the member of medical profession that he would use a fair, reasonable and competent degree of skill. However, a medical practitioner cannot be found guilty merely because in matter of opinion he made an error of judgement. The doctor would not be liable for taking and adopting one course of treatment, whereas other course might have been preferable. Doctor liable For Negligence Both in Civil and Criminal Law: A doctor when consulted by a patient owes him certain duties, viz, 1)A duty of care in deciding whether to undertake the case; 2) A duty of care in deciding what treatment to give; 15

3)A duty of care in administering that treatment. A breach of duty gives a cause of action under (i) Law of Torts, or (ii) Consumer Protection Act, 1986. The doctor is liable to pay compensation to victim if found liable . In case of civil case in law of torts the plaintiff is required to pay ad valorem court fee, which is about 10% of the amount claimed apart from other expense incurred. However under Consumer Protection Act, 1986 the plaintiff is not required to pay the court fees or engage a lawyer. He may present his case personally. A doctor may also be held liable under the Penal Code for punishment in case of criminal negligence, for: a) causing death by rash and negligent act under Section 304A, I.P.C. b) causing grievous hurt endangering life under Section 388, IPC c) causing hurt endangering life under Section 337, I.P.C Both the proceedings (civil and criminal) are may go simultaneously as laid down by Supreme Court in Union Carbide In order to prove criminal liability in medical negligence there must be causa causans and merely proving causa sine quo non, will not be enough. In criminal law the burden of proof will be much higher on prosecution as compared to civil law. The prosecution will have to prove its case beyond reasonable doubt and the victim will get nothing but mental satisfaction therefore, most of these cases are filed in civil courts preferably under Consumer Protection Act, 1986.


Defences Against Culpable Homicide: An Analysis on Self defence “The right of self defense is absolutely necessary. The vigilance of magistrates can never make up for vigilance of each individual on his own behalf. The fear of law can never restrain bad men as the fear of the sum total of individual resistance. Take away this and you become, in so doing, the accomplice of all bad men.”[1] Bentham The expression ‘self defence’, strictly speaking would imply only the defense of the person that is why the Code uses the expression ‘private defence’ which covers the defense of person as well as property. In Indian Penal Code the instead of self-defence the phrase “privatedefence” is used. The law does not require a citizen, however, lawabiding he may be, to behave like a rank coward on any occasion. The right of self-defence as defined by law must be fostered in the citizens of every free country. The law of self defence of person and property in India is codified in ss96-106 of Indian Penal Code, and it is not permissible to interpret the provision of these selections on the basis of principles governing the right of self defence in common law of England. The provisions are complete in themselves and therefore the words used in sections must be looked to be for finding the extent and limits of the right. The provision of the said sections must be construed in the back ground that the right of private defence is basically preventive, and not punitive.[2] As the self defense serves social purposes, the same should be construed liberally. The whole law of self defence rests on these propositions: Ø That society undertakes, and in the great majority of cases, is able to protect private persons against unlawful attacks upon their person or property. (It is the basis of the entire law. No one would dream of applying the refinements of the penal Code to an unsettled country, where everyone carries his life in his hand.) Ø That, where its aid cannot be obtained, it must be resorted to. (rests upon the assumed proposition) Ø That where its aid cannot be obtained, the individual may do everything that is necessary to protect himself, Ø But that the violence used must be in proportion to the injury to be 17

averted and must not be employed for the gratification of vindictive or malicious feeling. It is evident that proposition. Leading rules as to private defence The right of private defence is one of defence and not retribution. It is difficult to expect a person exercising the right in good faith to weigh with golden scales what maximum amount of force is necessary to keep within the right and every reasonable allowance should be made for the bona fide defender if with the instinct of self-preservation strong upon him he pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack. It would be wholly unrealistic to expect a person under assault to modulate his defence step-by –step according to the attack. The law undoubtedly authorizes a person under a reasonable apprehension that his life or that of another would be in danger or in risk of grievous hurt to inflict death upon assailant either when assault is attempted or directly threatened. Violence inflicted must not be greater than reasonably necessary for purposes of self-defence. It must be proportionate and commensurate with the quality and character of the act it is intended to meet, what is done in excess in not protected in law. In order to find out whether the right of private defence existed or not the entire incident should be examined with care and in its proper setting. The injuries received by the accused, the imminent threat to his 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. The leading feature of the right of private defence are as follows: Ø The right exists only when there is not time to have recourse to the protection of the public authorities.(s99, third) Ø A. Every person possesses this right(s. 99, ‘third.) B. It is exercisable against anyone, even though (i) of unsound of mind or (ii) immature years, etc (s 98) (iii) Subject to certain exceptions in regard to public servants (s 99, ‘first’ and ‘second’.


Ø The extent of the right is the infliction of the harm necessary for the purpose of defence (s 99, ‘fourth’). This may amount to the voluntary causing of death (ss 100 and 103), or only some harm other than death ( ss 101 and 104). Ø The subject matter of the right comprise the body if the person exercising the right or of anyone else, against any offence affecting the human body; and the property of the person exercising the right, or of anyone else, against theft, robbery, mischief or criminal trespass (s 97). Ø The right commences as soon as a reasonable apprehension of danger arises (ss 102 and 105). Ø The right ceases when the apprehension of danger ceases, or on completion of the offence ( ss 102 and 105). There are obvious differences between the English Law and the Indian Law relating to ‘right of private defence’. A person has ordinarily no right of private defence of body (self- defence) under English law unless his own life or life of someone standing to close relationship with him, like husband- wife, guardian-ward, master- servant, is threatened. On the other hand, the first clause of s 97 of the Indian penal code provides that a person has right to self defence of body when his own life or that of any person in danger by reason of apprehension of danger to life arising upon a sudden quarrel in which case the person who claims to act in selfdefence must treated as for as possible and attempt other means to avoid killing has assailant before he can be held to have had that right. The motive of self-preservation would dictate a define aggression on an innocent person. The right of self-defence arises out of the necessity for self preservation, still the later is wider and there can’t be right of selfdefence in every case of necessity. It may be interested to note in this connection that the law commissioners who, under the presidentship of Lord Macaulay prepared the original draft of Penal Code did not claim in their report relating to ss 96-106 that were bashing their draft upon principles of the common law of England relating to ‘right of self-defence’. Indeed they stated that they have drafted those provisions in the light of what was needed in the conditions prevailing in this (India) country.


SCOPE OF THE RIGHT OF THE SELF-DEFENCE Section 96 does not define the right of defence but merely declares that nothing is an offence which is done in the exercise of right of the private defence. So we can say that this right arises only against an act which would otherwise constitute an offence[5] and not against an act which is not an offence. Thus the infliction of the injuries by the deceased on the accused in exercise of right to self-defence is not an offence so as to entitle that latter to the right of self-defence under the sec. 96 of Indian Penal Code. It is enough if the accused apprehends that such an act of offence contemplated and likely to be committed if the right of self defence is not exercised. The Law does not confer a right of self-defence on a man who goes and seeks an attack which is likely to end of the death of the other. The right of self-defence conferred by the law or preserved by the law, for an individual is a very narrow and circumscribed right and can be taken advantages of only when circumstances fully justify the exercise of such right. The first thing to remember is that the right of self defence can under no circumstances justify anything which is strictly is no defence but an offence but however it may sometimes happen that an attack is the most effective way of making defence in such cases attack is justifiable. One can’t take plea of self defence if he has himself courted the attack. Herel[6] argues that denying the self-defence would minimize the incidence of violence in the society by providing an incentive to individual to moderate their behavior. If individuals know that they will not be permitted to use self-defence force if they contribute in some way to the need to do so, then they will act more carefully, thus creating a society with a lower incidence of crime and violence. Whether more harm has been inflicted than was necessary for the purposes of self-defence is purely a question of fact. Where the right is exceeded and injury caused is not justified, the person causing such injury is in the same position as if he had no right of private defence. Section 97- Right of private defence of the body and of property: Every person has a right (subject to the restrictions contained in section 99) to defendØ First.-- His own body, and the body of any other person, against any offence affecting the human body; 20

Ø 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 or criminal trespass. In every civilized society the defence of person and the property of every member thereof is the responsibility of state. Consequently, there is a duty cast upon 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 right of selfdefence. By seeing section 97 we can say that this section, in the name of state responsibility upon the persons; provides right to self-defence which includes both the person who acted in self defence and the individual on whose behalf this self- defence was exercised even it can be exercised against the act of unsound mind sec 98 even against the innocent person in case of deadly assault if defender is situated in such circumstances that he can’t exercise off self-defence effectually without risk of harm to innocent person sec.106. Section 100, 101, 103and 104 must be read together which deals with the right of self-defence of body is concern. These are related to extent of injury that can be inflicted on an assailant in the exercise of right of self-defence. Wherever the right of self-defence exists it extends to the causing of any injury short of death necessary for the purposes of defence, but in certain special cases may extend to causing death and it is justified. A person claiming self-defense must prove at trial that the self-defense was justified. Generally a person may use reasonable force when it appears reasonably necessary to prevent an impending injury. A person using force in self-defense should use only so much force as is required to repel the attack. No deadly force can be used to repel either a non deadly attack or a deadly attack. Deadly force may be used to fend off an attacker who is using deadly force but may not be used to repel an attacker who is not using deadly force. Right of selfdefence of body and property commences and continue as long as the dangers are not lost. Jai Dev v. State of Punjab The Supreme Court held that the right of private defence against an assault causing apprehension of death or grievous hurt comes to an end as soon as the threat of assault has ceased and the apprehension of the danger has been entirely removed. If the accused fire rifle shots at the assaulters when all of them have run away, and shoot down persons 21

standing at a long distance away, they cannot claim the right of private defence and are guilty of murder. Biran Singh v. State of Bihar Two of the accused, having received simple injuries, ran back to their house fetched a sword and inflicted fatal blows on the head of the deceased with that sword. The court held that even assuming that the deceased had inflicted simple injuries on the accused, there could be no justification for any of the accused to hit the deceased with a sword on a vital part of the body such as the head. The severity of the injuries could not be said either to have been a matter of chance. The acts bore a stamp design. The right of private defence could not be availed by the accused. These special cases where causing death in the exercise of selfdefence is justifiable are: Ø Assult which reasonably cause apprehension of death or grievous hurt or of rape or unnatural offence, kidnapping or abduction or wrongful confinement in such circumstances where which may reasonably causes him to apprehend that he will be unable to have resources to the public authority for his release. Ø Robbery, house breaking by night, mischief by fire to any building, tent or vessel used for the purpose of the dwelling or custody of the property, Theft , mischief or house trespass under such circumstances as may cause the apprehension that the death or grievous hurt will be the consequence. Bhaja Pradhan v. State of Orissa. The deceased had stolen a goat from the cattle shed of the accused. The accused charged him to recover his property and, in the process of recovering it, assaulted him without knowing that he had struck the vital body parts. Held, the accused exceeded the right of private defense. RESTRICTIONS ON THE RIGHT OF SELF-DEFENCE: We see that section 97 is provided in the name of state responsibility so this can’t be exercised against the State Authority or against a person who is legally entitle to act something. Section 97 of the Code provides that every person has a right, subject to the restrictions contained in Section 99. Section 99 elaborates such act against which there is no right of self – defence.


Ø There is no right of private defence 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. Ø There is no right of private defense 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. Ø There is no right of private defense in cases in which there is time to have recourse to protection of the public authorities. Ø Extent to which the right may be exercised. Extent to which the right may be exercised.-- The right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense. State of U.P v. Zalim and others, The right of private defense was not available to the accused that used knife and killed another person to repel the attack by that person with a shoe in his hand. It was held that the action of the accused could not fall within the periphery of right of private defense and assuming that they have a right of private defense, they had exceeded the same right. First clause protects a public servant against the right of self-defense even if the authority be defective in minor particulars or even if the officer exceeds his authority in a minor particular, and it merely leaves the right of self-defense open when the alleged authority is no authority at all and is wholly defective in form or the officer goes clearly and widely outside the duties imposed upon him. Second clause does not necessary implies that the act should be done by the public servant but doer must act under the direction of public servant and a person can resist a public servant if the doer’s conduct is altogether illegal.


‘Not strictly justifiable by law’ are not intended to cure the want of jurisdiction but only an erroneous exercise of it. It does not extend to cases where there is a complete want of jurisdiction. The protection afforded under it to public servant is not lost to them by reason of any mistake on their part in exercise of their proper functions. The section thus apply to cases where there is an excess of jurisdiction as distinct from a complete absence of jurisdiction, to cases where the officials has done wrongly what they might have done rightly, but not to cases where the act could not possibly have been done rightly. So our contention is that a person should be not deprived of self-defense against a public servant or a person who is acting under the directions of public servant, unless such person knows that the person against whom he is exercising the right is a public servant or acting under the direction of the public servant.


CONCLUSION A variation on this general theme suggests that the criminal law is primarily concerned with punishing. Defendants who manifest a defect of motivation and that we should excuse those who violate the law in cases where no defect of motivation exists. Like the claim about character, the suggestion about motive is that we cannot draw any negative conclusions about the motives of a person whose reason for violating the law is that he fears for his life or for the life of a loved one. The field of Culpable Homicide is very vast and is of practical utility . It includes all felonious homicide not amounting to murder. It is basically a killing which the killer neither intended nor foresaw as likely to happen; it is an accidental, blameworthy felonious killing. There have been many cases in which this field of law has been used and correctly applied as well. The Sections 299, 301, 304, 304A deal with the different aspects covered under this subject in an elaborate manner all the provisions are not exhaustive and there is a need to pit into application many of the suggestion of the Law Commission for better administration of Justice since it would help in the evolvement of this subject with time.


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