General Exceptions - Part 3 - Right of self-defence

96. Things done in private defence.

“Nothing is an offence which is done in the exercise of the right of private defence.”

In our country, the protection of person and property is the duty of the state. But what if an imminent danger is caused to a person or his property and even the state is not available the very moment? In such situations to protect oneself, his people or property from that imminent danger, one can utilise the right of private defence.[1]

Facing the danger, is what law teaches us by this chapter. To run away instead of facing the danger is degrading to human’s dignity. To face the situations in life, such provision has been implemented with reasonably restricted scope. Moreover, it is assumed to be the duty and instinct of a person to protect their life, their loved ones’ life, and their property.

Two important things are to be remembered in this section:

1.     The right of private defence is granted to establish a duty of self-protection while in imminent danger.

2.     Although this right should only be exercised in a reasonable capacity and should not be a weapon to protect the wrong doer for his wrongful acts.

This right of private defence is given with certain restrictions of proportionality.

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 defend—

First—His own body, and the body of any other person, against any offence affecting the human body;

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.”

For example, if B runs towards your sister with a dagger (a short knife) in revenge of love to kill her, you tried to stop him and while you were taking the dagger from his hand, the dagger accidently killed B. Morally as well as legally you cannot be held liable. As you did not have any primary intention to kill but you had to or accidently did, to save your sister’s life. This act of killing B would be accounted for private defence.

Another example of this is when five or more than five persons act in private defence, then it shall not be liable for unlawful assembly formation only because they were acting in private defence.[2]

Consider a situation, where an accused who has murdered X thought that he can claim self-defence. He was making statements without any facts and circumstances to prove that his act was the act of private defence. In such a situation the right of private defence cannot be assumed by the accused. That implies, this right is interpreted in accordance to the situation and facts of individual case.[3]

Important case laws:  A husband killed his wife in front of his children. The son soon after killed his father by slitting his throat. In such situation it has to be proved beyond reasonable doubt that the child had reasonable grounds to kill his father.[4] If in such situation the son killed his father when he was exiting from the crime scene and did not intended to kill his son. Now in such situation the right to private defence shall not be claimed.

While I was trespassing over the property of X, he came to beat me for my trespassing. In such situation if I hurt him, I cannot claim right of private defence since I was the offender in the first place. [5]

However, the attack of the owner against the trespassers cannot be of any degree. The proportionate degree has to be maintained which we will discuss later.

Suppose, A uses demeaning and slang words to define a man in an argument. The man with all anger came running with a dagger at A. A injured him to protect himself. Can the man claim private defence against the cruel and slangs A used? Can A claim private defence?

The man cannot use the defence under this section because mere words cannot lead to imminent danger.[6]

However, A can claim private defence because the man came running at him with a dagger.

Another example can be, if S saw a robbery happening in his house. To protect her 7 crore’s diamonds from the thief who has a gun, she hit him with a lamp due to which he suffered great loss. Now in this situation S can claim private defence if she proves that her actions were necessary and it was a situation of imminent threat.

Generally, no right of private defence is given to the person who does not have the possession of the land.^[7]

Exceeding the right to private defence

Proportionate principle is applied in the present right.

For example, if A was beating B with lathi and suffered various injuries. B in order to retaliate and protect himself gave a severe blow to A with a ballam(a sharp big object). It would not be fair to say it was a right to private defence because the degree of injury given by both of them were not proportionate.[8] A person who is beating you with a chopstick you can’t kill him altogether.  

Consider a situation where a man A, was about to shoot C (B’s wife). To protect his wife, B shot at A. But B missed his target and the bullet killed D. It is said that although he has killed D. He did not exceed his right of private defence.[9]

98. Right of private defence against the act of a person of unsound mind. etc.

“When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.”

Consider an example, S, a woman, under influence of madness, tries to kill B. B in self-defence shoots S. Who can be held liable? S was acting under influence of madness and therefore commits a crime. B to protect himself shoots at A and truly acted in private defence. Both were fair in their acts and therefore nobody is liable.

99. Acts against which there is no right of private defence. Extent to which the right may be exercised.

“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.

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 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.

There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.

Extent to which the right may be exercised—The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1—A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2—A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.”

Section 99 describes the limitation for extension of private defence.

There are three situations that we can analyse:

I. If A, a police officer, with a warrant, legally confines B for an offence he is accused of, B cannot extend his right to private defence. If B tries to run away from A and to catch him, A fires on B’s leg. B to protect himself shot A to death. B cannot claim the right to private defence because the police were acting in good faith according to law.

However, if a police officer without a warrant searches your house, you can consider them as trespassers.[10]

II. If A, a police officer orders C to shoot B, because he has the gun, to stop B. B shots back A and C both to protect himself. B cannot claim the right to the private defence because whatever C was doing was because of the A’s orders and in good faith.

However, if a police officer tries to execute an illegal warrant, then the act of resistance against it shall be justified.

III. B was harassing D for ransom and threaten D that he will kill his wife if he does not give him 6 crore rupees. D waited for six days. And after cutting 20 calls from B, D went to his place and killed B with a sword. Can D claim the right to private defence? No, because D had enough time to call the state for help. Recall the statement that was written under section 96. The right to private defence is given in situations only when imminent danger is experienced. While he waited for 6 days he could have informed police or authorities about it. And therefore, he cannot exceed his right of private defence.[11]

The proportionality rule is described here. It states that the right to private defence cannot be exercised without any proper reason. The reasonable action should be committed in proportion to the injuries that might be caught due to an imminent threat. 

For example, A comes with a pencil to kill B. B shoots A to protect himself. Can he claim self-defence? No. because A could have given grievous or simple injuries to B with that pencil but murder would have been difficult. In such a situation generally, the defence would not be given because the reaction is not in proportion.

Similarly, a trespasser cannot be shot for his trespassing.[12]

An unarmed person gave serious injuries to the accused. The accused cannot claim the right of private defence while he shot the victim to death.[13]

100.When the right of private defence of the body extends to causing death.

“The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: —

First—Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; 

Secondly—Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly—An assault with the intention of committing rape;

Fourthly—An assault with the intention of gratifying unnatural lust;

Fifthly—An assault with the intention of kidnapping or abducting;

Sixthly—An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Seventhly—An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.”

This section also stresses the proportionality of the reaction under self-defence. The voluntary causing of death can be done when certain circumstances arise like abduction, rape, wrongfully confining, etc. as given under this section. And when an accused fails to prove the apprehension of right to private defence, he shall not be given the right of private defence.

When the death of the assailant is caused, the accused simply has to prove that he was under imminent danger and threat of life and therefore the act was proportionate and necessary.

For example, when a W was getting kidnapped, by her own husband from a farmhouse, her brother came to her rescue and to protect her from 3 goons along with the husband, the brother killed husband and injured the three goons. Can the brother claim private defence? Yes. [14]

Similarly, a brother who was grappling with his sister and was trying to outrage her modesty, his mother came to her rescue and hit him with a glass lamp. He died in the process. Can the mother claim private defence? Yes, she can.[15]

In another instance, two friends who were drunk and entered into an argumentative fight. One of the friends hit the other who was unarmed with a glass bottle and he died. Can he claim private defence due to the hot argumentative fight they were having? No, there was no imminent danger nor was there any apprehension of causing death or injury.

Burden of Proof

The burden of proof lies on the accused, to prove without any reasonable doubt that the act was of private defence. [16]

In 2013, the right of private defence against acid attacks were also administered under the Criminal Law (Amendment) Act, 2013[17] on the recommendation of the Justice Verma Committee.

The difference between sections 99 and 100 is that 99 talks about the apprehension of any harm other than death and 100 talks about the apprehension of death.

101.When such right extends to causing any harm other than death.

“If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.”

I slapped M due to a big loss I had because of M’s carelessness. M took a gun and killed me. Was M acting under private defence? NO!!

A threw a stone piece, a brickbat on Z. Z had very few head injuries. Z took a gun and shot A. Can Z claim private defence? NO!! [18]

All these examples state that the right does not extend over to those actions which are not capable of causing any harm, grievous injury, or death of the accused.

A was kidnapped by one D. D pulled out a gun to kill A. A snatched the gun from D and killed him. The right of private defence was exceeded since after snatching the pistol from D, A did not have the threat of death anymore, instead, D had a threat to life.[19]

102. Commencement and continuance of the right of private defence of the body.

“The right of private defence of the body commences as soon as a 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 it continues as long as such apprehension of danger to the body continues.”

As long as a person has an imminent threat of life or any injury, his actions in proportion can be considered under the right of private defence.

For example, A, the victim was chasing B in a jungle to kill him with a dagger. B while running for his life in the jungle killed A first, to protect himself. B can claim the right of private defence. But if B had found a way out from the jungle and he could have just left the jungle. But he still kills A can he claim private defence? In such a situation, if it is proved that even though B has escaped, he would not have been able to call the authorities for help and there were high chances that A could find out about him in the outskirts of the jungle considering A had a very big army of goons. In such situations, if B still kills A despite knowing the way out of the jungle, he can claim private defence.

For example, In cases where abduction is done with the fear of death, the accused cannot claim private defence when he waited for 6 days after the threat call. This would not amount to self-defence.

103.When the right of private defence of property extends to causing death.

“The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: —

First—Robbery;

Secondly—House-breaking by night;

Thirdly—Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

Fourthly—Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.”

This section describes about the right to private defence to protect one’s property from given situations.

If a person who has the possession of an agricultural land sees a blind person ploughing his land. The owner tries to stop him, but the blind man asks her people 8-10 goons to beat the owner and throw him out of the land. In defence the owner killed the blind man. It was held that until the death of blind man, the owner would not have been able to protect himself against the goons and therefore his right of private defence was not exceeded.[20]

The right of private defence after causing death of a trespasser on an open space cannot be claimed.[21]

A did not close his shop on a Bharat bandh day. Some people (4-5) came to his shop with heavy arms and demanded him to close his shop. To protect himself, the shop-owner fired at them and two of them were killed. After firing his shop was set on fire. It was held that the shop-owner did not exceed his private defence right and can be exempted from punishment.[22]

104. When such right extends to causing any harm other than death.

“If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.”

Section 99 and 97 provides certain situations like theft, etc where the private defence can be exercised when the injury of the accused is caused. In cases where a person does an act which is not among the listed acts under section 99, 97, but can cause harm to the accused, the accused can exercise the right to private defence.

For example, A tries to give B a drug which may cause serious internal injuries to B. Giving a drug does not involve an activity already listed in the above section but it does have a capacity to harm B. In such a situation, if B harms A to protect himself, then B can exercise the right of private defence.

105.Commencement and continuance of the right of private defence of property.

“The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.”

The right of private defence against person and for property can be claimed until there is a reasonable apprehension of danger to the property is considered. As soon as this apprehension ceases, the right also ceases to exist.[23] One of the important key point is that this right exists even if there is no actual danger is caused but apprehension of danger.[24]

The right of private defence of property against theft continues till

(1)   the offender has affected his retreat with the property, or

(2)   the assistance of public authorities is obtained, or

(3)   the property has been recovered.”[25]

Consider a situation where a thief enters your house. He pulls a gun and threatens you to keep quiet and silently move to a single room. All the family members (2 members) went quietly into the room. Now, the offence of theft and the apprehension of danger to life will continue until the wrongful confinement ends or the thief vanishes or the family members catch the thief and he has to pay for his actions. Till then the danger continues and the right of private defence exists. But the moment thief steps out of the house and there is no more threat to their lives, the right to private defence ceases to exist.  

106.Right of private defence against deadly assault when there is risk of harm to innocent person.

“If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.”

Injury caused to innocent person in order to exercise the right of private defence is justified.[26] For example, in order to protect oneself from an unlawful assembly’s attack, B fires on the children mingled with the assembly. A little boy dies. It will be considered that B did not commit any offence.

 

By,

LawVastutah

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[1] Dharam v State of Haryana. JT 2007 (1) SC 299

[2] Kashi Ram v State of MP, AIR 2001 SC 2902

[3] State of Gujarat v Bai Fatima, 1975 Cr LJ 1079; Raza Pasha, 1983 Cr LJ 977; Salim Zia, 1979 Cr LJ 323

[4] Kashiram v State of MP, (2002) 1 SCC 71

[5] Hukam Singh, (1961) 2 Cr LJ 711

[6] Ramesh Laxman Pardesi v State of Maharashtra, 1987 SCC (Cr ) 615

[7] Daulat Trimbak Shewale v State of Maharashtra, (2004) 10 SCC 715

[8] Dilip Singh v State of Rajasthan, (1994) 2 Cr LJ 2439 (Raj)

[9] Krushna Chandra Bisoi v State of Orissa, 1992 Cr LJ 1766 (Ori).

[10] Ram Parves, (1944) 23 Pat 328.

[11] Ritaram Besra v State of Bihar, (2007) 15 SCC 383

[12] John Scutty v State, (1824) 1 C & P 319

[13] Baitullah v State of UP, AIR 1997 SC 3946

[14] Nankau v State, 1977 Cr LJ NOC 116 (All).

[15] Bhadar Ram v State of Rajasthan, 2000 Cr LJ 1174 (Raj)

[16] Kishan Chand v State of UP, (2007) 14 SCC 737

[17] Act 13 of 2013, section 2 (w.e.f. 3-2-2013).

[18] State of J&K v Hazara Singh, 1980 Cr LJ 1501

[19] Ghunnu v State of UP, 1980 Cr LJ (NOC) 15

[20] Chandra Shekhar Tiwari v State, 1993 Cr LJ 2159 (All)

[21] Jassa Singh v State of Haryana, AIR 2002 SC 520

[22] James Martin v State of Kerala, (2004) 2 SCC 203

[23] Rajesh Kumar v Dharamvi, 1997 Cr LJ 2242

[24] Chakradhar, (1964) 2 Cr LJ 696 .

[25] Punjabrao, (1945) Nag 881.

[26] State of Karnataka v Madesha, (2007) 7 SCC 35