Insanity under IPC

July 30, 2017 | Author: Gurjinder Singh | Category: Insanity Defense, Burden Of Proof (Law), Insanity, Assault, Plea
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UNION JUDICIARY INCLUDING WRITS Submitted to: - Dr Shruti Bedi By Kunwar Rajan (135/10) 3rd Semester


DEFENCE OF UNSOUND MIND (SECTION-84) The section- 84 under Indian Penal code states that: “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” This is given as a defence because there is absence of mens rea on the part of the accused as he suffering from defect of mind.

INSANITY It is referred to as lunacy or unsound mind, mental abnormality, disease of mind etc. an insane person cannot think and act as a normal human being. His capacity to know things is perverted. It is called „non compose mentis.' (possessed of a sound mind.) If insanity is to be regarded as immunity first of all it must be clearly explained as to what it is. There being no standard of insanity, it becomes difficult to define insanity leading to the absence of mens rea. Mc'Naghten Rule: In 1843 the law of insanity was more properly formulated by the house of lords in the historic case of R v. Mc'Naghten. Principles Laid Down In Mc'naghten Case: 1. Every person is presumed to be sane, until the contrary is established. 2. To establish the defence of insanity, it must be clearly proved that at the time of committing the crime, the person was so insane as not to know the nature and quality of the act he was doing or if he did know it, he did not know that what he was doing was wrong. 3. The test of wrongfulness f the act is in the power to distinguish between right and wrong, not in the abstract or in general, but in regard to the particular act committed. The English law on insanity is based on the Mc'Naghten rules and the Indian Law that is codified in the Indian Penal Code, 1860 s. 84, is also based on the Mc'Naghten rules. These principles have been incorporated in the penal codes of almost all the countries in the world. Insanity Under Ipc And Cr Pc. Insanity Under Indian Penal Code:

The defence of insanity is discussed in sec 84 of the Indian penal code which reads: “Act of a person of unsound mind- Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of doing the act, or that he is doing what is either wrong or contrary in law.” Principles For The Application Of This Section:

The following principles are to be kept in mind in applying this section: 1. every type of insanity is not legal insanity; the cognitive faculty must be destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law; 2. the court shall presume the absence of such insanity; 3. the burden of proof of legal insanity is on the accused, though it is not as heavy as the prosecution; 4. the court must consider whether the accused suffered from legal insanity at the time when the offence was committed; 5. in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant consideration; and 6. The prosecution in discharging its burden of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of the law that everyone knows the law and the natural consequences of his act. Essential Ingredients Of The Section

Ingredients of Section-84:

Act must be done by a person of unsound mind.

Such a person must be incapable of:-

a. Knowing the nature of the act. b. The act was contrary to law. c. That the act was wrong. The incapacity of the person must have existed at the time of commission of the act Unsoundness Of Mind: The term unsoundness of mind has not been defined in the code. But it has been equated by the courts to mean insanity. This section only deals with incapacity of mind which is a result of „unsoundness of mind' or „insanity'. It is not every type of insanity which is recognized medically

that is given the protection of this section. Medical insanity is different from legal insanity. The insanity should be of such a nature that it destroys the cognitive faculty of the mind, to such an extent that he is incapable of knowing the nature of his act or what he is doing is wrong or contrary to law.This section will apply even in cases of fits of insanity and lucid intervals. But it must be proved in such cases that at the time of commission of the offence, the accused was surfing from a fit of insanity which rendered him incapable of knowing the nature of his act. Legal And Medical Insanity Distinguished: It is in the case of every person pronounced to be insane according to medical science to be excused? No insanity for the purpose of criminal law differs from that in the medical sense. According to medical experts, every case of mental abnormality is insanity. According to law not all persons who are medically insane are legally insane because amongst those who are medically insane some are able to control some times and behave like normal people. He as a normal man plans the crime; they sometimes can plan better and even execute it even with more care. He knows what he is doing is wrong. We judge a man's responsibility with regards to his mens rea. Only those cases where because of insanity he does not know what he is doing or he does not know what he is doing is a wrong, only they can be excused. So amongst all the medically insane persons, only a few are legally insane. The law propounds a different test from that in the medical field. The test in law is simply, whether because of his insanity he is incapable of possessing mens rea. It is only where the insanity destroys the cognitive faculty of mind, it is considered as insanity in law. The faculty of reasoning and judgement is also considered. An insane person is not punished because he does not have any guilty mind to commit the crime. Kinds Of Insanity: There are no hard and fast rules in respect of what are the kinds of insanity which are recognized by courts as „legal insanity'. A survey of the case law reveals that the courts are influenced more by the facts of the case and the nature of crime, rather than any formal evidence as to the kind of insanity that the accused is suffering from. Law group's insanity into two broad heads, namely, 1. dementia naturalis i.e. individuals that are insane from birth; and 2. dementia adventitia or accidentialis i.e. an individual who becomes insane after birth. Hallucination Or Delusion: Hallucination or delusion is a state of mind where a person may be perfectly sane in respect of everything, but may be under a delusion in respect of one particular idea. The Bombay and the madras high courts have held that for a person who is not insane but is suffering from hallucination, this section cannot be invoked. Somnambulism:

Somnambulism is the unconscious state known as sleep walking and if proved, will constitute unsoundness of mind and the accused will get the benefit under this section. Irresistible Impulse, Mental Agitation, Annoyance And Fury: Irresistible impulse, mental agitation, annoyance and fury all merely indicate loss of control and not indicative of soundness of mind. Every minor mental aberration is not insanity and the circumstances indicating a mere probability of legal insanity cannot however be sufficient to discharge the onus of the accused to establish the plea of insanity. Here the victim actually becomes a tool in the hands of the disease. This is called cognitive insanity Insanity As Result Of Smoking Ganja Or Heavy Intoxication: Where insanity is caused by excessive drinking even involuntary or by smoking ganja or other drugs, such insanity will also amount to unsoundness of mind, if it makes a person incapable of understanding what he is doing or that he is doing is something wrong or illegal. The accused can take shelter under this section, if he can prove that the insanity existed at the time of the commission of the act. Lack Of Motive Or A Trifle Matter: The absence of a strong and adequate motive to commit such a serious offence like murder is not by itself a proof of insanity. But the absence of a motive may be taken into consideration along with other circumstances of a case to determine the question of sanity or otherwise of the accused. The fact that the accused caused the death of a person over a trifling matter will not by itself warrant a conclusion that he was insane, when no plea of insanity was taken before the trial court, nor was nay material produced to establish the ground of insanity. Excessive Or Unusual Violence: The brutality or the ferociousness of the act by itself cannot lead to the conclusion of insanity. Crime cannot be excused by its own atrocity. In order to determine whether the conduct of the accused was an insane act, one must look beyond or outside the act or crime itself for evidence as to how much the accused acted with knowledge. Insanity Under Criminal Procedure Code: Under the Criminal Procedure Code,1973 unsoundness of mind comes under section 464 and 465, which states that when an issue as to unsoundness of mind of an accused person is raised the court is bound to enquire it begins to record evidence. It says that when a magistrate while conducting an inquiry feels that the person is of unsound mind and consequently, incapable of making his defence, he may ask a medical officer to examine the person and postpone the trial of the case.

Position In Other Countries: Insanity Under American Law: In regards to defence of insanity in the United States of America, Underhill's Criminal Evidence has the following to say: Insanity is everywhere a defence to a charge of crime, for without a sound mind there can be no criminal intent. The existence, character and extent of insanity are ordinarily questions of the fact for the jury, and a defendant who has offered proof of his insanity is entitled to an instruction that he may be found not guilty by reason of insanity. The authorities are not agreed on the legal test for determining insanity. Most of the states have adopted the right and wrong test, as set forth by the House of Lords in the leading case of McNaughten in 1843. Insanity Under The English Law: The English law is also based on the Mc'Nachten rule. The English law on insanity is thus: “where it can be shown that a person at the time of his committing or omitting an act, the commission or omission of which would otherwise be criminal, was labouring under such a defect of reason, from the disease of the mind, as not to know the nature and quality of the act or omission, or as not to know that what he was doing was wrong, then such a person is not in law responsible for his act. Insanity Under Swiss Law Section. 10 of the Swiss Penal Code states that „any person suffering from a mental disease, idiocy or serious impairment of his mental faculties, who at the time of committing the act is incapable of appreciating the unlawful nature of his act or acting in accordance with the appreciation may not be punished'. Insanity Under The Law Of France: Penal Code of France, art. 64 provides that „there is no crime or offence when the accused was in state of madness at the time of the act or in the event of his having been compelled by a force which he was not able to resist'. Case Laws State Of MP V. Ahamdullah Subject: The burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by sec 84, IP code lies on the accused who claims the benefit of this exemption.

Facts: In this case the accused had murdered his mother in law to whom he bore ill-will in connection with his divorce.It was proved that he did the act at night having got into the house by scaling over a wall with the aid of a torch light and entered the room where the deceased was sleeping. All this showed that the crime was committed not in a sudden mood of insanity, but one that was preceded by careful planning and exhibiting cool calculation in execution and directed against a person who was considered to be his enemy. Then again, there was a mood of exultation which the accused exhibited after he had put out her life. Judgement: In these circumstances the Supreme Court rejecting his plea of insanity, convicted the accused of the offence of murder (setting aside the acquittals of both the session court and the high court), and sentenced him to rigorous imprisonment for life. Ayyangar J said thus: In the normal case, the proper punishment for the heinous and premeditated crime committed with human brutality would have been a sentence of death. But taking into the account the fact that the accused has been acquitted by the session's judge, an order which has been affirmed by the high court – we consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life. Dayabhai Chhaganbhai Thakkar V. State Of Gujarat In this case, the accused was charged and convicted under the IPC, s. 302 for the murder of his wife. The accused killed his wife with wife by inflicting her with 44 knife injuries on her body. The accused raised the plea of insanity at the trial court. Trial court however rejected the contention on the ground that the statements made to the police immediately after the incident did not showed any sign of insanity. This conviction was confirmed by the high court. The accused made an appeal to the Supreme Court. The Supreme Court also upheld the conviction of the accused and laid down certain criteria according to which an accused in entitled to the defence under the provision. It said that in determining whether the accused has established his case under the purview of Indian Penal Code, 1860, s. 84, „the court has to consider the circumstances which preceded, attended and followed the crime. The crucial point of time for determining the state of mind of the accused is the time when the offence was committed. The relevant facts are motive for the crime, the previous history as to mental condition of the accused, the state of his mind at the time of the offence, and the events immediately after the incident that throw a light on the state of his mind'. Ratanlal V. State Of MP The appellant on 22 January 1965, set fire to the grass lying in the khalyan of Nemichand. On being asked why he did it, the accused said; „I burnt it; do whatever you want'. The accused was arrested on 23 January 1965. He was referred to a mental hospital. The psychiatrist of the hospital reported that the accused remained silent, was a case of maniac depressive psychosis, and needs treatment. The report declared the accused to be a lunatic in terms of the Indian Lunatic Act, 1912The issue before the courts was whether insanity might be used as defence

against a charge of mischief by fire with intent to cause damage under the IPC, s. 435. The crucial point in this case was whether unsound mind may be established at the time of commission of the act. The Supreme Court held that the person was insane and acquitted him. Hazara Singh V. State In this case, Hazara Singh was under a delusion that his wife was unfaithful to him. One day, being disturbed by those thoughts, he caused her death by pouring nitric acid over her. Medical evidence showed that he knew what he was doing and had the ordinary knowledge of right and wrong. He was convicted for murder. Bhikari V. State Of Uttar Pradesh It is not for the prosecution to establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every one is presumed to know the consequences of his act. Similarly everyone is also presumed to know the law. These are not facts that the prosecution has to establish. It is for this reason that sec 105 of The Evidence Act places upon the accused person the burden of proving the exception upon which he relies. Undoubtedly, it is for the prosecution to prove beyond the reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence adduced in the case whether by prosecution or by the accused and when the reasonable doubt is created in the mind of the court as regards one or more of the ingredients of the offence including mens rea of the accused, he would be entitled to be acquitted. In the present case, there is evidence that up to the time of occurrence he (accused) has been doing with his cultivation. There is no evidence on record to prove the characteristic of his habit from which it could be concluded that he was acting like an insane man. Before the commission of the crime he did not beat any person. On the other hand, few months before occurrence the accused admittedly picked up quarrel with mangali and Bhaiya Lal and had given threats to make their family extinct. An insane person could not have done so like a sane person. Further on the date of the occurrence many children were playing including his own cousin sister. But first of all he gave a sickle blow only to Babu ram and other children of the family of mangali and babul al and not to any other child. This shows that he did not act under the influence of insanity but only with some previous deliberation and preparation. It is further in evidence that he had given threats to the witnesses. He beat Hiralal only when he tried to stop the act of beating of children of mangali and Bhaiya Lal's family with whom he had picked up quarrel previously. Lastly, a sense of fear prevailed in hi and that is why he acted as a sane man by running and then escaping by jumping into ganges river. So all these circumstances lead to one conclusion that he was not insane and he had acted like a sane man and with some motive. Held: death sentence was upheld.

Sant Bir V. State Of Bihar it is not possible as to why the state government should have insisted before releasing the petitioner from the jail when the petitioner was found to be completely recovered and completely fit for discharge and there was absolutely no warrant or justification in law to detain him. The result was that the petitioner continued to rot in jail for a further period of ten years, though he was fully recovered and there was no reason or justification to continue his detention in the jail. It is shocking that a perfectly sane person should have been incarcerated within the walls of the prison for almost 16 years without any justification in law whatsoever. Held: The Supreme Court further observed that it should be a matter of shame for the society as well as the administration to detain a person in jail for over 16 years without authority of law. Tukappa Tamanna Lingardi V. State Of Maharashtra In a Bombay case a woman, the sister of the accused reported at the police station that he had come to banda weekly bazaar on that day, which was Monday, for selling potatoes and onions and further, that one person by the name ajjappa (victim) had quarrelled with her over the purchase of goods. The ASI of police who was on duty could not follow the language of the woman who was accompanied by the accused, the ASI sent a constable to bring the PS., the person complained against by the woman. But in the presence of the said constable suddenly the accused attacked the deceased and beheaded him. If transpired in the evidence that he accused had the fits of lunacy and, while in such fits, he used to say that a tiger was coming to eat him or to kill him. He used to hear the voice of the tiger and used to refuse to take his food. The accused used to have sleepless nights and if at all he was asleep, he used to get up and run away under the stress of fear from the tiger. On the date of the offence, the appellant was wandering in the forest of a heavy sickle (pal koyta) expecting a tiger to come. After a thorough analysis of the evidence and circumstances, the high court held that the accused was entitled to the protection of section 84, IPC. Baijanti V. State The accused was suffering from TB and stomach pain for the last sometimes and one day along with her infant jumped into the well in which incident the child lost her life but the lady accused was taken out alive. On being prosecuted u/s 302 she pleaded insanity but the court refused as she had no kind of mental ailment at the time of committing the crime. However she was said to have committed the act with the knowledge that the death was likely to be caused thereby. Hence her conviction was altered from u/s. 302 to one u/s 304 for committing the offence of culpable homicide not amounting to murder. Srikant Anandrao Bhosale V. State Of Maharashtra The circumstances that stand proved in the case are:

The appellant had a family history – his after her was suffering from psychiatric illness. The cause of ailment was not known – but heredity plays a part. The appellant was also being treated for unsoundness of mind since 1992 and was diagnosed as suffering from paranoid schizophrenia. Within a short span, soon after the incident from 27th June to 5th December, 1994, he had to be taken for treatment of ailment 25 times to the hospital. The appellant was also under regular treatment for the mental ailment. The And the fact of the killing in day light shows that no attempt to hide or run away was made. The plea of insanity was thus proved. Hence the conviction and sentence of the appellant cannot be sustained. Babasaheb Thombre V. State Of Maharashtra In the present case the accused was found guilty of committing murder of his wife. He was convicted for committing offence punishable under section 302 of the Indian penal code and is sentenced to suffer imprisonment for life by the Additional Session's Judge. The post mortem report was prepared by an autopsy surgeon who stated that the cause of the death of the wife of the accused was a shock due to the head injury with laceration of the brain. The accused pleaded insanity as a defence and stated that he was suffering from schizophrenia. But the evidence proved that he was not suffering from any kind of mental illness and was in full control of all his cognitive faculties prior to, at the time and after the commission of the offence. The appeal was thus dismissed in the higher court and the accused was convicted for murder. Conclusion And Suggestions The Indian Law on insanity is based on the rules laid down in the Mc'Naghten case. However, the Mc'Naghten rules have become obsolete and are not proper and suitable in the modern era. The Mc'Naghten rules is based on the entirely obsolete and misleading conception of nature of insanity, since insanity does not only affect the cognitive faculties but affects the whole personality of the person including both the will and the emotions. The present definition only looks at the cognitive and moral aspects of the defendant's actions but ignores the irresistible impulse that may be forcing him to commit that act. An insane person may often know the nature and quality of his act and that law forbids it but yet commit it as a result of the mental disease. The Law Commission of India in its 42nd report after considering the desirability of introducing the test of diminished responsibility under IPC, s. 84 gave its opinion in the negative due to the complicated medico-legal issue it would introduce in trial. It is submitted that the Law Commission's view needs modification since it is not in conformity with the latest scientific and technological advances made in this direction. There are three compartments of the mind controlling cognition, emotion and will. IPC, s. 84 only exempts one whose cognitive faculties are affected. The provision is regarded as too narrow, and makes no provision for a case where one's emotion and the will are so affected as to render the control of the cognitive faculties

ineffectual. The Courts must also adopt a broader view of the Insanity and introduce the concept of diminished responsibility. The Indian Government may also look at the provisions of the other countries relating to insanity. Swiss Penal Code, s. 10 states that „any person suffering from a mental disease, idiocy or serious impairment of his mental faculties, who at the time of committing the act is incapable of appreciating the unlawful nature of his act or acting in accordance with the appreciation may not be punished'. This provision is much broader and is better suited for the defence of insanity. The researcher submits that the defence of insanity is too narrow and must be amended to suit the present demands.

Critical Appraisal of Private Defense Under Indian Penal Code A penal code is a particular body related to crimes and offenses and the punishment for commission. Private defense under the Indian penal code is a right availed to all citizens in circumstances where one is protecting himself or property. Under section 96 to 106 in which it is stated that each person has a right to use unlimited force in defense against an attacker as a means to defend his life or property or that of another person near to him in the event that state law enforces are not readily available. This then gives justification and protection to a criminal who commits crime in the name of self-defense against an assailant. Critical appraisal of private defense under Indian penal code is therefore a systematic assessment of the penal code, reviewing its relevance, validity and its application situations. It is the fundamental obligation of the Indian state to give protection to its citizens‟ life and property, even though self-protection remains each and every person‟s mandate. This is however logistically impossible to achieve regardless of how big or resourced the government agencies may be, to police every person wherever he/she is. The penal code therefore gives individuals the right to take law into their own hands in response to safety. This is however limited to instances where there is sufficient time for police to provide the necessary protection. In section 99 however, there is limitation to the use of unnecessary force to cause harm to another person in the name of self-defense. The private defense to one‟s body extends to causing of death in circumstances when an assailant tends to rape an individual, in cases of abduction or kidnap and when an assailant tends to inflict serious bodily harm to an individual. Even though the law would go a long way in the provision of necessary self-protection to citizens, it is however very difficult for the courts who implement the laws to determine whether individuals exercise the right appropriately and whether actions taken are done in good faith. It would therefore be more appropriate if adjustments are done to the penal code, to ensure that it is not misused or acted on inappropriately in the name of self-defense.

Basic Principle: self preservation is the private instinct of every human being. Every man has the right of private defense his own body, property and the body and property of his nearer. This basic principle has been recognized in the IPC to give protection to the wrong doer, who

commits acriminal act in the course of protecting his person, property, body andproperty of his nearest. Russel: Justified the killing of an aggressor, against the exercise of the right of private defense for saving her body and property. Bantham also justified the principle of self preservation in his principle of penal code, he admit that Magistrate (State) is not such capable to vigilance (save) every individual, nor the fear of law can restrain bad men as the fear of the sum total of individual resistance. Right to private defense and IPC. S.96, define that nothing is an office which is done in the exercise of the right of private defense, which lays done the general rule on the right of private defense. While S.97 which deals with the subject matter of the right of private defense of body and property and lays down the extent of the right of private defense, proclaims that every person, subject to restrictions contained in S.99, has a right to defend his own body and the body of another , against any office affecting human, and right to defend the property of his own and his nearer or any other person against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass. and S.99 lists the situation wherein the right to private defense of body as well as property is not available to an individual, s102 and s105 deal with commencement and continuation of right to private defense of body and property. Whereas SS.100,101,103,104 deals with the extant of harm (including voluntary death) that my be inflicted on the assailant in exercise of the right of body and of property respectively, while S.98 also provide the right of private defense against the lunatic person as well. S100.Right of private defense of the body extends to causing death: The right of private defense of the body extends to causing death is recognized by S100 of IPC, but this right is subject to the restrictions mentioned in the S.99 of IPC, to the voluntary causing of death or of any other harm to the assailant, when any one of the six situations stipulated therein arise in the committing of the offence of body extend to the causing of voluntary death of the actual or potential assailant if he through either of the specified assaults causes reasonable and immediate apprehension of death or grievous hurt in the mind of the accused. The categories of assault specified in the sections are: 1. 2. 3. 4. 5. 6.

Assault to kill. Assault to cause grievous hurt. Assault to commit rape. Assault to gratify unnatural lust. Assault to kidnap or abduct Assault to wrongfully confining a person and the accused cannot recourse to the public authority for his release.

Reasonable apprehension of Death or Grievous hurt Sufficient:

The first clause of s.100 stipulates that the right ofprivate defense of body extends to causing death, when such an assault reasonably causes the apprehension that death will otherwise be the consequence of such assault. the second clause of s100 stipulates that when an assault caused the reasonable apprehension that grievous hurt will otherwise be the consequence of such an assault, the right of private defense extends to causing of death. In order to avail of such exception of criminal liability under this clause, what is require to be establish is that there was reasonable circumstances giving rise to reasonable apprehension of either death or grievous hurt. Such an apprehension of death or grievous hurt must be real or reasonable and not an illusory or imaginary. It must be present and imminent and not remote or distant one. The reasonable apprehension of cause of death or grievous hurt will be caused to him , however is required to be judged from the subjective point of view and it cannot be subject to microscopic and pedantic scrutiny. The accused must be bona fide fear that death or grievous hurt would otherwise be the consequence of the assault if he done not defend. It is not essential that actual injury should be caused by the aggressor or the victim before the right of self defense can be availed of. Person apprehending danger is not required to wait for sustaining injury. Mere apprehension is sufficient to exercise his right of private defense. Exception of Right to Private Defense Right to private defense not available to aggressors. There is no right to private defense can be claimed by the aggressors. It is available against any offense and therefore, where an act is done in exercise of the right of private defense, such act cannot rise to any right of private defense in favor of the aggressor in return. Chacko v/s state of kerala. Quantum of injuries: If a person exercising the right of private defense has the better of the aggressor, provided he does not exceed his right because the movement he exceeds it he commits and offense. The injuries given to the aggressor by the accused must be in propositioned the assault. Free fight: There is no defense available of right of private defense when there is a free fight between two parties or individual, one another using unlawful force against each other. Both the sides mean to fight from the start. And they have the same intention to give the injuries to other. No right of private defense available in the following condition also:  

Against lawful acts. Unlawful assembly.

Case Laws. Vishwantha v/s Stateof UP AIR 1960 SC 67 SC held that appellant had the right of private defense of person under the fifth clause of s.100 IPc and did not cause more harm than was necessary and acquitted the appellant. State of UP v/s Zalim and other. SC held that mere apprehension of death is not the ground of right to private defense. State of UP v/s Chattur sing Hon'ble court held that accused intention and premeditated notion to murder is clear and accused is liable to be convicted to be murder. Conclusion: Right to private defense is essentially a defensive right circumscribed by the IPC and it is available only when the circumstances clearly justify it. It is exercised only to repel unlawful aggression and to punish the aggressor for the offence committed by him. It is basically preventive in nature and not punitive. It is neither a right of aggression nor a reprisal. Its exercise cannot be vindictive or malicious.

Bibliography: Books Referred:        

P Srivastava, “Principles of Criminal Law”, 4th ed., 2005. PSA Pillai, “Criminal Law”, 9th ed., 2007. K S N Murthy and K V S Sarma, “Criminal Law”, 1st ed., 2001. ND Basu, “Indian penal code”, 9th ed., vol 1, (2nd Ind. Rep.), 2006. R P Kathuria. “Supreme court on criminal law”, vol.3, 5th ed., 1996. Ratanlal and Dhirajlal, “ Indian penal code”, 29th ed., (2nd Ind. Rep.), 2004. J W Cecil Turner, “outlines of criminal law”, 19th ed., 2002. John Kaplan and Robert Weisberg, “criminal law”, 2nd ed., 1991.



Raghunath Prasad H.J.S. The terms 'Private Defence' and 'Self Defence' are synonymous to each other. In fact they carry one and the same meaning. Latin words, 'Se Defendendo' stand for the same. In the olden days, when the civilization had not dawned, only one law had its effective play and that was 'might is right'. With the advancement of society the State took up the task of protecting the person and property of its subject, but experiences were that the State was exclusively - unable to guarantee such protection and thereby its subject were privileged to protect their person and property by causing injuries, simple and grievous, within their reasonable restrictions, to them who intended to pose such danger to person and property. Sections 96 to 106 of the Indian Penal Code deal with the right of private defence of person and property. This right is based on two principles, (I), It is available against the aggressor only, and (II), the right is available only when the defender entertains reasonable apprehension. There are three

tests for ascertaining reasonable apprehension; they are objective, subjective and expanded objective. While objective test emphasises as to how in a similar circumstance an ordinary, reasonable, standard and average person will response, the subjective test examines the mental state based on individualistic attitude. However, expanded objective test, being the combination of aforesaid, two tests, bases its inquiry on an individual as a person and inquiry is furthered to determine whether or not the individual acted as a reasonable person. Right of private defence serves social purpose and the right should be liberally construed. Such a right will not only be a restraining influence on bad characters but will also encourage manly spirit in a law abiding citizen1 It is a very valuable right. It has a social purpose. It should not be narrowly construed. It necessitates the occasions for the exercise of this right as an effective means of protection against wrong doers2. In judging whether the accused has exceeded his right to private defence or not, the court has to take into account the weapons used particularly in a case of firing and the number of shots that were fired3. In such a case where it was not possible to disengage the truth from falsehood and to sift the grain from the chaff, because the truth and falsehood were so inextricably inter twined together, the prosecution was found to have failed to prove the case beyond reasonable doubt and it was held that the accused

could not be said to have exceeded his right of private defence.4

1 Munshi Ram v. delhi Administration, AIR 1968 SC 702 2 Vidya Singh v. State of M.P,. AIR 1971 SC 1857 3 Madan Mohan Pandey v, State ot U,P" 1991 Cr, L,J, 467 (S.C). 4 Biri Singh v. State of U.P., 1992 Cr.L.J.1510 (S.C.). S Kamta v. State, 1978 All W.C. 281. 4YFPMWLIH MR -RWXMXYXI W .SYVREP 1EVGL 2

From the point of view of prosecution, it can now be safely said that there are two basic principles of criminal justice system, one, there is presumption of Innocence in favour of the accused, and second, it is for the prosecution to prove the guilt beyond all reasonable doubts.

However, the questions are as to in what manner plea of private defence can be introduced by the accused and as to how the burden of proving the plea of private defence can be discharged. Many debates on both the counts have been made. Now the law is clear. Evidence establishing a plea of private defence may be Introduced by the prosecution itself or it may be introduced by the defence by the cross examination of the witnesses or by the statement of accused u/s 313 Cr. P.C. or by the defence evidence5. Plea of private defence, even if not taken in trial court, can be taken in appeal6. Even the accused can rely on circumstances and admissions made by the witnesses in support of his plea of self-defence, without even setting up a specific plea. It was held that it was not a right approach to question that the plea was put forward during the trial and not during investigation7. Section 105 of Indian Evidence Act. 1872 casts a burden on accused to prove exception of defence and in absence of proof it is not possible for the court to presume the truth of the plea of self defence8. In nine Judges bench of Allahabad High Court,9 the question for consideration was as to whether the views of Seven Judges10 were still a good law. While declaring that the majority decision in Parbhoo v. Emperor10 is still, good law, it was held that the accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence

as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the court about the guilt of the accused. Discussing it further, it was observed that the majority of their Lordships did not lay down anything beyond three important propositions which, if not either directly or indirectly supported by decisions of their Lordships of the Supreme Court, have not been affected in the slightest degree by these decisions. These propositions are: firstly, that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that the accused has not proved his plea fully; secondly, that the obligatory presumption at the end of Section 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of the offence with which he is charged; and thirdly, if the doubt, though raised due to evidence in support of the exception pleaded, is reasonable and affects an ingredient of

5 Kamta v. State, 1978 All W.C. 281 6 Ahir Raja Ladha v. State of Gujarat, (1969)2 S.C.W.R. 828 ( 831) 7 Bahadur Singh v. State of Punjab. 1993 S.C.C. (Cr.) 94

8 Narain Singh v. State of Punjab. (1964) 1 Cr.L.J.730, Ram Dahir v. State of Bihar. 1970 S.C. Cr. R.557: State of U.P. v. Ram Swaroop, AIR 1974 S.C. 1570. Salim Zia v. State Of U.P., AIR 1979 S.C. 391, Mohindra Pal v. State of Punjab, AIR 1979 S.C. 577 9 Rishikesh Singh v. state of U.P, AIR 1970 All 51 (FB) 10 Parbhoo v. Emperor, AIR 1941 All. 402 (F.B.) 3

the offence with which the accused is charged, the accused would be entitled to an acquittal. Even if the accused falls to establish to the satisfaction of the court, the plea of private defence, it is enough, if a reasonable doubt arises on examination of the probabilities of the case11. Accused need not prove the same beyond reasonable doubt. However, the circumstances should at least probabilise the same.12 Some of the cases will justify the causing of injuries in exercise of the right of private defence. Where the accused assaulting victim on seeing his minor daughter being sexually molested by him, it is a case where the right of private defence arises and the case is fully covered by Sections 96 and 97 read with Section 100 of the I.P.C., whether it was a case of sexual intercourse with consent or without consent.13 The defence version that the deceased

and his brother followed accused and his brother while they were passing the lane via house of deceased and on reaching place of occurrence deceased tried to inflict blow with Kripan, whereupon accused turned and fired shot resulting in death of Darshan Singh on the spot, was found acceptable14 As she had neither motive nor had intention to kill the deceased, she only wanted to save herself from an armed intruder who had inflicted knife Injuries on her, the court found that she acted in her right of self defence.15 The compromising position in which the accused found the deceased with his wife gave the accused the grave and sudden provocation. The provocation was further aggravated when the accused found the deceased causing further offence of causing multiple injuries including grievous injury to him. Accused thereafter using chopper and causing death of deceased. The court held that it cannot be said that the accused has exceeded his right of private defence.16 In this case both the sides were armed. The victim received a number of injuries and fell dead. Two of the accused also received gunshot injuries. The evidence showed that the accused had already taken possession of the land, though it was taken forcibly. The court held that in presence of such evidence the accused could not be held aggressors and their plea of self defence could not altogether be ignored 17 .

Effect of non-explanation of Injuries On this point of law, views of Hon'ble Supreme Court have been of different dimensions. Views are being reproduced below. Adverse Inference Theory 1. Where the prosecution fails to explain the injuries on the accused, two results follow:

(i) That the evidence of the prosecution witnesses is untrue; and (ii) that the injuries probabilise the plea taken by the accused. Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394: (AIR 1976 SC 2263).

11Munshi Ram v. Delhi Administration, AIR 1968 S.C. 702; State of U.P. v. Ram Swaroop, AIR 1974 S.C. 1570; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478; State of U.P. v. Mohd. Museer Khan, AIR 1977 SC 1897; Mohinder Pal v. State of Punjab, AIR 1979 SC 577; Salim Zia v. State of U.P., AIR 1979 SC 391; Ram Phal v. State of Haryana, AIR 1993 SC 1979. 12 Ballam Singh v. State of Haryana, 1994 Supp. (1) S.C.C. 92 = 1994 SCC (Cr.) 196 13 Yeshwant Rao v. State of M.P., 1992 Cr. L.J. 2779 (S.C.) 14 State of Punjab v. Sohan Singh, 1992 Cr. L.J. 2514 (S.C.)

15 Nabia Bai v. State of Madhya Pradesh, 1992 Cr. L.J. 526 (SC) 16 Raghavan Achari v. State of Kerala, 1992 Cr.L.J. 3857 (SC) 17 Khudedu v. State of U.P., AIR 1993 SC 1538 4

2. The non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (i) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (iii) that in case there is a defence version which explains the Injuries on the person of the accused, It Is rendered probable so as to throw doubt on the prosecution case. Mohar Rai v. State of Bihar, (1968) 3 SCR 525: (AIR 1968 SC 1281). No Obligation Theory 1. The prosecution is not obliged to explain the Injuries on the person of the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries of the accused. Bhaba Nanda Sharma v. State of Assam, (1977) 4 SCC 396 : (AIR 1977 SC 2252).

2. The prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused. Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881: (AIR 1972 SC 2593) Care and Caution Theory In Onkarnath Singh v. State of U.P., (1975) 3 SCC 276: (AIR 1974 SC 1550), Hon'ble Supreme Court has reiterated its view as expressed in Bankey Lal v. State of U.P., (1971)2 SCC 184: (AIR 1971 SC 2233) and Bhagwan Tana Patil v. State of Maharashtra, (1974) 3 SCC 536: (AIR 1974 SC 21) that the entire prosecution case cannot be thrown over-board simply because the prosecution witnesses do not explain the injuries on the person of the accused. Thereafter, it was observed as follows (at p. 1557 of AIR):"Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care. Each case presents its own features. In some case, the failure of the prosecution to account for the injuries of accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the

prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift to the prosecution to prove that those injuries were caused to the accused in self-defence by the 5

complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises" Corresponding Obligation Theory It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy-the court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution two conditions must be satisfied:1. That the injuries on the person of the accused must be very serious and severe and not superficial; 2. That it must be shown that these injuries must have been caused at

the time of the occurrence in question. Jag dish v. State of Rajasthan. (1979) 3 SCR 428. (AIR 1979 SC 1010 at p. 1011). Eye witnesses Preferential Theory In material particulars the evidence of the three eye-witnesses as also the evidence of dying declaration of the deceased before P.W. Gulam Nabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No.1. The prosecution case is not shaken at all on that account. State of Gujarat v. Bai Fatima. (AIR 1975 SC 1478). Appreciation of Evidence Theory It is not an invariable rule that the prosecution has to explain the Injuries - " sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by, the accused and proves its case beyond reasonable doubt it becomes hardly necessary for the prosecution to again

explain how and in what circumstances injuries have been inflicted on the person of the accused. Hare Krishna Singh v. State of Bihar. AIR 1988 SC 863. Prosecution witness shy away Theory Two accused persons sustained injuries on the skull as well as scapular region but no explanation was offered by the prosecution, it was held that if the prosecution witnesses shy away from the reality and do not explain the injuries. It casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the - impression that the witnesses are 6

suppressing some part of the incident. It was hazardous to place implicit reliance on the testimony of the Injured P. W. 2 State of Rajasthan v. Madho. AIR 1991 SC 1065. Scope for argument theory The effect of non-explanation by the prosecution about the injuries on the accused persons depends on the facts and circumstances of each case. Normally if there is such non explanation it may at the most give scope for the argument that the accused had the right of private defence or In general. that the prosecution evidence should be rejected as they have not come out with the whole truth particularly regarding the genesis of the occurrence.

State of Karnataka vs. Jinappa Kudachi and others, 1994 S.C.C. (Cr.) 330. Accused non explaining factor theory There is not a whisper on the side of the accused as to how they happened to receive the injuries. No doubt the burden is not on them but in appreciating the facts of the case, this aspect also has to be borne in mind. Jagat Singh v. State of Punjab, 1994 SCC (Cr.) 1246. [J.T.R.I. JOURNAL – Second Year, Issue – 4 & 5 - Year – March, 1996]

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