Right of private defence

RIGHT OF PRIVATE DEFENCE Submitted by P.Mohandas Reg. No. BA0150026

Under the Guidance of

Ms.Golda Sahao Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL (A State University established by Act No. 9 of 2012) Tiruchirappalli Tamil Nadu – 620 009 MARCH – 2017

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Ms. Golda Sahao Assistant Professor in Law of Crimes Tamil Nadu National Law School Tiruchirappalli Tamil Nadu – 620 009

CERTIFICATE This is to certify that the project work entitled “RIGHT OF PRIVATE DEFENCE is a bonafide record of the research work done by P.Mohandas, under my supervision and guidance. It has not been submitted by any other University for the award of any degree, diploma, associate ship, fellowship or for any other similar recognition.

Place: Tiruchirappalli Signature of the Guide

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P.Mohandas

Reg. No. BA0150026 – II Year B.A. LLB.(Hons.) Tamil Nadu National Law School Tiruchirappalli Tamil Nadu – 620 009

DECLARATION I, P.Mohandas, do hereby declare that the project entitled RIGHT OF PRIVATE

DEFENCE submitted to Tamil Nadu National Law School in partial fulfillment of requirement for award of degree in Under Graduate in Law to Tamil Nadu National Law School, Tiruchirappalli, is my original research work. It and has not been formed basis for award of any degree or diploma or fellowship or any other title to any other candidate of any university.

Counter Signed

Signature of the Candidate

Project Guide

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ACKNOWLEDGEMENT At the outset, I take this opportunity to thank my Professor s Ms.Golda Sahao from the bottom of my heart who has been of immense help during moments of anxiety and torpidity while the project was taking its crucial shape. Secondly, I convey my deepest regards to the Vice Chancellor Dr.KAMALA SANKARAN and the administrative staff of TNNLS who held the project in high esteem by providing reliable information in the form of library infrastructure and database connections in times of need. Thirdly, the contribution made by my parents and friends by foregoing their precious time is unforgettable and highly solicited. Their valuable advice and timely supervision paved the way for the successful completion of this project. Finally, I thank the Almighty who gave me the courage and stamina to confront all hurdles during the making of this project.

Words aren’t sufficient to acknowledge the

tremendous contributions of various people involved in this project, as I know ‘Words are Poor Comforters’. I once again wholeheartedly and earnestly thank all the people who were involved directly or indirectly during this project making which helped me to come out with flying colors.

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TABLE OF CONTENTS CHAPTER I INTRODUCTION OBJECTIVES RIGHT OF PRIVATE DEFENCE IN GENERAL NATURE OF THE RIGHT CONSEQUENCE OF THIS PLEA CHAPTER II THINGS DONE IN PRIVATE DEFENCE: SECTION 96 RIGHT OF PRIVATE DEFENCE OF THE BODY AND OF PROPERTY: SECTION 97 CASES ON DEFENCE OF PERSON CASES ON DEFENCE OF PROPERTY TRESSPASSER: WHEN TO EXERCISE THIS RIGHT: RIGHT OF PRIVATE DEFENCE AGAINST THE ACT OF A PERSON OF UNSOUND MIND ETC.: SECTION 98 ACTS AGAINST WHICH THERE IS NO RIGHJT OF PRIVATE DEFENCE: SECTION 99 PUBLIC SERVANT ACTING IN GOOD FAITH: CASES ON SECTION 99: CHAPTER III WHEN THE RIGHT OF PRIVATE DEFENCE OF BODY EXTENDS TO CAUSING DEATH: SECTION 100 5

CASES ON Sec.100 HARM SHORT OD DEATH: SECTION 101. COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF PRIVATE DEFNCE: SECTION 102. CASES: RIGHT OF PRIVATE DEFENCE OF PROPERTY WHEN EXTENDS TO CAUSING DEATH: SECTION 103 SECTION 104: RPD EXTENDS TO CAUSING ANY HARM SHORT OF DEATH COMMENCEMENT AND CONTINUANCE OF RPD TO PROPERTY: SECTION 105 RPD AGAINST DEADLY ASSAULT; SECTION 106 PROOF CHAPTER IV CONCLUSION

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CHAPTER I

INTRODUCTION: A state is under obligation to protect life, limb and property of its subjects, but no state will be in a position to depute a police officer to every individual for protection. A state can never extend its help to all at all times and in all cases. Obviously the subjects are expected to use force that is required to counter the danger or until the state comes to its rescue. Thus it intends to discourage cowardice and encourage private warfare. This is how RPD comes into picture. These laws, provisions and cases determine the limit of self defence so that justice is extended to intruders and attackers as well. This is important to maintain supremacy of the state and the law. OBJECTIVES:  

To analyze RPD laws To answer whether these laws are just

RIGHT OF PRIVATE DEFENCE – IN GENERAL: Right of private defence is the seventh general exception. They are defined in the sections 96 to 106 of Indian Penal Code,1860. Out of these eleven sections, 

Section 96: declares that nothing is an offence which is done in exercise of the right of

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private defence. Section 97: says the right of private defence is of two types: (i) right of private defence of body (one’s own body or body of another person) ; (ii) right of private defence of property (movable or immovable). 7

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Section 98: lays down, for the purpose of exercising the right of private defence physical or mental incapacity of the person against whom it is exercised is no bar. Section 99: right of private defence does not extend to the following: (i) Act of a public servant not causing apprehension of death or grievous hurt. (ii) Act done under the direction of a public servant not causing apprehension of

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death or grievous hurt. (iii) Where there is time to have recourse to the protection of public authorities. Sections 100 & 101: lays down the circumstances when the right of private defence of

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body extends to causing death or any harm short of death. Sections 103 & 104: explain the extent of the right of private defence of property causing

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death or any harm short of death. Sections 102 & 105: lay down the commencement and continuance of this right. Section 106: explains as to when this right can be exercised at the risk of causing harm to an innocent person.

Nature of the right: This right is purely preventive and not offensive, retributive or punitive.1 The right is a right to ward off danger of being attacked and the danger must not be illusory but must be so imminent, potent and real that it cannot be averted otherwise other than by a counter attack. 2 The Penal Code envisages two measures of RPD: 1. First degree RPD: which shall not reach upto causing the death of the wrongdoer. 2. Full measure RPD: which may go up to causing death of the wrongdoer. To justify the exercise of this right the following are to be examined:3 (i) The entire incident; (ii) Injuries received by the accused; (iii) Imminence of threat to his safety; (iv)Injuries caused by the accused; (v) Circumstances whether the accused had time to recourse to public authorities. 1 N.G.Shreedharan v. State of Kerala, (1996) 2 SCC 112: 1996 SCC (Cri) 218. 2Raj Pal V. State Of Haryana, (2006) 9 SCC 678: (2006) 3 SCC (Cri) 361. 3 Patil hari meghji v. state of Gujarat, (1983) 2 SCC 270: 1983 SCC (Cri) 398: 1983 Cri LJ 826 (SC). 8

CONSEQUENCES OF THIS PLEA: This plea of right of private defence cannot be proved beyond reasonable doubt. CHAPTER II THINGS DONE IN PRIVATE DEFENCE: SECTION 96 As per Section 96 nothing is an offence which is done in exercise of the right of private defence. However this right differs from the doctrine of necessity. This right arises from necessity, the necessity for self-preservation. But it doesn’t mean that wherever the is necessity, there is the right of private defence. The right of private defence has to be pleaded and proved by the accused.4 Even if the accused has not pleaded this right, the court must take the facts into consideration, if its finds the accused had acted in self-defence.5 The supreme court has accepted the same in the recent case of munshi ram v. delhi admn.6 The rules regarding the burden of proof had been laid down by the supreme court in pratap v. state7, Narain singh v. state of maharashtra8, dahyabhai v. state of bihar9, K.M. nanavati v. state of maharashtra 10 and other cases. Cases:

4 Ram suhavan v. state, 1976 all LJ 508. 5 Hom singh, 1982 UP Cr Cas 30. 6 AIR 1968 SC 702: (1968) Cri LJ 806 (SC). 7 (1976) 2 SCC 798: 1976 SCC (Cri) 303. 8 (1964) 1 Cri LJ 730. 9 (1964) 5 GLR 911. 10 AIR 1962 SC 605: 64 BLR 488. 9

1. Kamparsare v. putappa:11 Where a boy in the street was raising a cloud of dust and a passer-by therefore chased the boy and beat him, it was held that the passer-by committed no offence. His act was done in exercise of the right of private defence. 2. Illustration 1: Some women were being forcibly abducted. Their relative saw this and while trying to rescue, caused injury to the culprit. It was held that the act was done in exercise of the right of private defence. Hence, not an offence.

RIGHT OF PRIVATE DEFENCE OF THE BODY AND OF PROPERTY: SECTION 97 Sections 97 and 99 combined together lay down the principles of the right of private defence. As explained in jaidev v. state of punjab12, 1) The threat to ones person or property must be real and immediate; 2) The forced used must be necessary force till the threat exists; 3) It is not necessary to modulate one’s defence step by step, according to the attack before there is reason to believe that the attack is over. One has the right to secure victory over the culprit using necessary force. CASES ON DEFENCE OF PERSON: 1. Paramasukha case:13 As per a false information, that a certain stolen property is in possession of one P, a police sub inspector and a constable went to search P’s house. They demanded the said property from P’s wife. She said she has no knowledge and her husband would come soon. The inspector laid hands on her and threatened and she cried for help. P’s cousin on hearing the cry, came and then he was assaulted by the sub inspector. The accused struck two blows with the cane on sub inspector’s forehead. It was held by

11 45 Cri LJ 524: AIR 1944 Mad 168: 40 Cri LJ 874: 184 IC 208. 12 AIR 1963 SC 612: (1963) 1 Cri LJ 495. 13 (1925) 27 Cri LJ 11. 10

the Supreme court that the accused has a right of private defence against the dual assault by the police on his person. 2. Parichhat case v. state of M.P.:14 The accused gave a blow on the chest of the deceased with a ballam against a lathi blow on his father’s head. The court decided that the accused has obviously exceeded the right of private defence.

CASES ON DEFENCE OF PROPERTY: Not only one’s person but one’s property can be defended. Similarly, not only another’s body but his property also can be defended. 1. Chhotelal v. state: B was constructing a structure on a land subject to dispute between A and B. A was trying to demolish the structure. B therefore assaulted A with lathi. It was held that A was responsible for the crime of waste and B had the right of private defence on his property. TRESSPASSER: WHEN TO EXERCISE THIS RIGHT: As expressed in ram ratan15and puran singh16 cases to exercise this right: (i) A trespasser must be in actual possession of property over a sufficiently long period; (ii) His possession must be to the knowledge, either express or implied, of the owner or without any attempt at concealment; (iii) The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; (iv)If the crop has been grown by the trespasser, even the true owner has no right to destroy the crop or take the possession forcibly of claim the right of private defence; 14 (1972) 4 SCC 694: 1972 Cri LJ 322 (SC) 15 Ram rattan v. state of u.p., 1977 Cri LJ 433. 16 1975 Cri LJ 1479. 11

(v) A trespasser in settled possession can be evicted only in due course of law by a rightful owner. RIGHT OF PRIVATE DEFENCE AGAINST THE ACT OF A PERSON OF UNSOUND MIND ETC.: SECTION 98 The right of private defence of body exist against all attackers , whether with or without mens rea. Unsoundness of mind is defined in Section 84 of IPC,1860. Intoxication is defined in Section 85 of IPC,1860. Misconception is defined in Sections 76 and 79 of IPC,1860. ILLUSTRATIONS ON SECTION 98: 1. A was attacked by B, an insane person with a knife. A suffered cuts on his hand and the next moment A pushed B and B fell into a manhole and died. The kind of force he used is necessary and he had the right of private defence which he would have as if the attackers were sane. 2. A under some misconception thinks X to be a housebreaker and attacks him, X has the right of private defence which he would have as if the attackers were not acting in misconception. ACTS AGAINST WHICH THERE IS NO RIGHJT OF PRIVATE DEFENCE: SECTION 99 Right of private defence does not extend to the following: (i) Act of a public servant not causing apprehension of death or grevious hurt. (ii) Act done under the direction of a public servant not causing apprehension of (iii)

death or grievous hurt. Where there is time to have recourse to the protection of public authorities.

PUBLIC SERVANT ACTING IN GOOD FAITH:

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Good faith of the public servant is always a question of fact. An officer of public servant is not protected when he acts outside the scope of his powers. For instance, an illegally issued warrant cannot be executed. And of course it is necessary to defend oneself than running away for protection. Also, the measure of self defence used must be always in proportionate with the quantum of force used by the attacker. CASES ON SECTION 99: 1. Halloway case:17 A servant finding a boy stealing wood from his master’s ground tied the boy to a horse carriage and bet him. The horse took fright, ran and dragged the boy. The boy suffered a broken shoulder and he died. Held, the servant used excess force and exceeded his right. Therefore found guilty of murder. 2. Kesho ram case:18 In this case the officers of the Delhi municipal corporation, acting in good faith, seized the buffalo of kesho ram for recovering milk tax. Notice was not given to kesho ram regarding this under the Municipal act. The court decided that the act of the officers were not entirely outside the law and the accused had no RPD. CHAPTER III WHEN THE RIGHT OF PRIVATE DEFENCE OF BODY EXTENDS TO CAUSING DEATH: SECTION 100 The right of private defence of body can be used to cause the assailant’s death. But this right is subjected to restrictions laid down by sec.99. a) Gist of section: The sections lays down that the RPD of the body extends to causing even the death of the assailant: 1. When the assault causes reasonable apprehension of death;

17 (1628) 1 East PC 327. 18 Kesho ram v. delhi admn., (1974) 4 SCC 509: 1974 SCC (Cri) 545: 1974 Cri LJ 814 (SC). 13

2. When the assault causes reasonable apprehension that grievous hurt may be the 3. 4. 5. 6. 7.

consequence of such assault; When the assault is done with the intention of committing rape; Or of gratifying unnatural lust; Or of kidnapping; Or of abducting; Or of wrongfully confining a person in such a way that he would be unable to have

recourse to the public authorities for his release. b) Four conditions Moreover before the life of a person four cardinal conditions must by present: 1. The accused must be free from fault in bringing the encounter 2. Presence of impending peril to life or of great bodily harm, either real or apparent as to create an honest belief of existing necessity 3. No safe or reasonable mode of escape by retreat, and 4. A necessity for taking assailant’s life. c) Apprehension of death The apprehension must be reasonable. In deciding this the weapon used, the manner of using it , nature of assault and other surrounding circumstances must be taken into account19. CASES ON Sec.100 In Jai Dev v State of Punjab 20, The deceased was a man of desperate character. After serving a long sentence he had just come out of jail. Armed with club he threatened accused here can go to the length of causing his adversary’s death in exercise of the RPD. Where the appellant’s sister was being abducted by force and threat is an instance where reasonable apprehension of death would be caused. HARM SHORT OD DEATH:SECTION 101. The RPD extent of causing any harm short of death. Of course, this is subjected to restrictions mentioned in sec.99 CASES ON Sec.101

19 B.M Gandhi,Indian Penal Code,3rd Edn p140. 20 (1972) 4 SCC 694. 14

In Mohinder pal Jolly v. State of Punjab21 The workers of a factory threw brick bats and the owner by a shot from his revolver caused death of his worker. It was held that this section did not protect him as there was no apprehension of death or grievous hurt. COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF PRIVATE DEFNCE:SECTION 102. (i) The right of private defence commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence , though the offence may not have been committed; and (ii) It continues so long as such the apprehension of danger to the body continues22 REASONABLE APPREHENSION The apprehension of danger must not be fanciful. For example, one cannot shoot one’s enemy from a long distance, even if he is harmed with dangerous weapons and means to kill. In other words, there is no attack and hence no RPD arises. CASES: In Kala Singh case23, the deceased how was a strong man of dangerous character who killed one person previously. He threw the accused on the ground, pressed his neck and bit him. The accused when he was free from the clutches of this brute, took up a light hatchet and gave three blows on the head of the brute. The deceased died three days leter. It was held that the conduct of the deceased was aggressive and the circumstances raised a strong apprehension on the mind of the accused that he would be killed otherwise. CASES WHERE RPD IS NEGATIVE: In the following cases RPD is negative. i.

An aggressor has no RPD.24

21 (1979) 3 SCC 30. 22 Raj Pal v. State of Haryana (2006) 9 SCC 678. 23 (1993) 34 Cri LJ 1175. 24 (1971) 3 SCC 683 15

ii. iii. iv. v. vi. vii. viii.

Where the individual is unarmed and the unoffending and trying to get up.25 Where a person flees to save his life26 Where the opposite person is a weak old person27 Catching a thief at night in the house and deliberately killing him with a pickaxe28 Subjecting a thief in one’s power to gross maltreatment and strangling him29 When the apprehension has ceased to exist30, and Where the most disproportionate violence is inflicted31

RIGHT OF PRIVATE DEFENCE OF PROPERTY WHEN EXTENDS TO CAUSING DEATH: SECTION 103 This section is like section 100. It indicates the case wherein the RPD of property extends to causing death. It automatically follows that any injury less than death can be inflicted. This section is subject to provisions of section 99. Consequently death can be caused in the following cases of defence of property, and in no other cases: i. ii. iii. iv. a) b)

Against robbery Against housebreaking by night Against mischief by fire to any kind of human dwelling or a place of custody of property; Against: Theft Mischief or

25 (1974) Cri LJ 463 26 (1974) 4 SCC 764 27 [1866] 5 WR 33 28 [1866] 5 WR 73 29 1870 15 WR 68 30 1983 2 SCC 270 31 1973 1 SCC 347 16

c) House trespass causing apprehension of death or grievous hurt

When this section is read with section 100 it is known that RPD can be extended to causing even death.

SECTION 104: RPD EXTENDS TO CAUSING ANY HARM SHORT OF DEATH This section cannot be said to giving a concession to the accused to exceed their RPD in any way. If anyone exceeds the RPD and causes death of the trespasser, he is guilty under section 304 (2).32 One must note that this section 104 is a corollary to section 103.

COMMENCEMENT AND CONTINUANCE OF RPD TO PROPERTY: SECTION 105 Section 102 and 105 indicate as to when RPD to body and property commences, continues and ends. There should not be unreasonable interval of time between removal and recapture of property. This section applies to stolen property but not to property acquired dishonestly, within the meanings of sections 403 and 411.

RPD AGAINST DEADLY ASSAULT; SECTION 106:

32 VC Cherian vs State of Kerala, 198a2 Cri LJ 2071 Kerala 17

This section provides for the risk a person may have to run in order to defend himself against a deadly assault reasonably causing the apprehension of his death. The illustration attached to the section makes the understanding clear. However, where there is no such apprehension, risk to the life of an innocent person should not be run. In such a case the aid of the section cannot be invoked33. PROOF: Right to private defence need not be proven beyond reasonable doubt, the complainant has to prove reasonable probability of danger to him on his property34. The court has to decide as to who is an aggressor and an aggressor has no right of private defense 35. In every case of homicide there is no right of presumption that accused is the aggressor 36. Burden is on the accused to show that he had the right of private defence which extended to causing of death37.

CHAPTER IV CONCLUSION: Thus we see that the law maintains an equitable view on the right to private defence. While it is no doubt a necessary provision to prevent prosecution of the innocent respondents, at the same time law must not be taken into private hands, and the thin veil between legality and morality is maintained in that just-appropriate rights are accorded under RPD for the sake of satisfying urges under the heat of the moment. Thus we have just statutory provisions in this regard. Thus the objective is completed. 33 Ishak 1976 Jab LJ 351 34 1996 SCC cri 890 35 1996 10 SCC 277 36 1996 6 SCC 457 37 2003 2 SCC 661 18