Author: Asmita Chakraborty
It is the natural instinct of a man to defend his body and his possession against any imminent danger. In the opinion of Justice Donavan, “The law of private defence is neither a written law nor a law taught to us, we have imbibed this from the nature itself, we are not trained for it rather it is ingrained us that if our life is in danger from violence, every means to secure safety is honourable”. The law of private defence being the inalienable right of the man such cannot be abrogated by the society. Though the right to private defence can be abridged to some extent it cannot be superseded by the law of the society.
The right of private defence is not abrogated by the mere presence of another people who is standing merely as a silent observer. A man is fully justified if instead of fleeing if he holds his grounds and gives a counter-attack to his assailants. However, since this right is of the nature of defence and not of punishment and retaliation, use of unduly disproportionate force in respect of the injury to be averted or which is reasonably apprehended is not justified.
All in all the right to private defence should not be exercised vindictively or in a malicious manner. For example, a homicide cannot be justified as self-defence where it was pre-meditated or was done as an act of revenge for previous injury. The purpose of the person attacked behind using private defence is not to enforce law, rather an act of self-preservation. The Indian Criminal Legal system recognises the private defence as a general exception to all offences and is enshrined in the Indian Penal Code, 1860 from Sections 96 to 106. Since Protective Mechanisms of the State are not always readily available, the recognition of the Right to Private Defence has been imperative.
Scope of Right to Private Defence:
As already mentioned above, the Right to Private Defence has been mentioned in the Indian Penal Code, 1860 from Section 96 to 106. Also, as previously mentioned, the person who is supposedly accused shall be absolved of all his guilt, if his act of causing an offence was actually directed against the real assailant or if his act consisting of the offence was exercised in use of private defence and which falls within any one of the 6 or 4 categories mentioned from Section 100 to 103.
Section 98 talks about private defence against the acts of a person with an unsound mind and says that an act which would have been an offence otherwise will not be the same by reason of youth, want of maturity of understanding, unsoundness of mind or intoxication or acts done under misconception.
However, Section 99 provides for the express limitations on the rights of private defence and says that there is no right to private defence in cases of acts by public servants, when there is enough time to seek public recourse or in case when force used in apprehension of danger is more than the force to be used in the danger. In the case of Mohinder Pal Jolly v. State of Punjab when there was a dispute between the factory workers and its employer, while the workers threw bricks and in retaliation the employer fired a gun killing one worker, it was held that there was no defence of private defence and the force used was in excess to the apprehended danger, thereby, going in contravention of Section 99 of the Code, 1860. However, again in the case of Baljit Singh v. State of Uttar Pradesh, where the property was a disputed land and the complainant had entered in the land armed with lathi and in order to protect his land, defendant had assaulted the complainant leading to his death. It was held that he had rightly used his right of private defence and hence had not committed any offence.
Section 100 mentions six situations where ‘private defence of body’ causing death does not amount to an offence. They are the following:
- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
- An assault with the intention of committing rape;
- An assault with the intention of gratifying unnatural lust;
- An assault with the intention of kidnapping or abducting;
- 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.
Section 101 also makes it clear that the right to private defence is not only limited to the six scenarios enumerated above but also covers within its ambit all other harms caused while exercising the right to private defence. However, such cases are hit by the restrictions mentioned under Section 99. Section 102 makes it clear that the right to private defence lasts as long as the apprehension of danger to one’s life and property lasts.
Section 103 provides for the situations where the right of private defence serves as an exception to the offence in case of danger to one’s property and they are following:
- House-breaking by night;
- 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;
- 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.
Section 104 and Section 105 of the Act, 1860 is similar to Section 102 and Section 103 only in this case Section 104 and Section 105 deals with acts causing harm other than during defence of one’s property and the time period till when such right to private defence of property extends respectively.
Burden of Proof:
The right to private defence is based mainly on two principles which are:
- The right is available against the aggressor; and
- Only when the defender enters reasonable apprehension.
The tests for ascertaining reasonable apprehension are three in number. 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 respond, 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.
In order to ascertain if the right to private defence has been exceeded or not, the weapons used is to be taken into consideration, especially in cases of firing and the number of shots that were fired. Section 105 of Indian Evidence Act, 1872 casts a burden on the 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-defence. Upholding the decision in the case of Parbhoo v. Emperor, a nine-judge bench of Allahabad High Court held that an accused person who pleads an exception and after thorough perusal of all the evidence as a whole, a doubt is created in the mind of the court, in such case the accused is entitled to be acquitted. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
- Darshan Singh v. State of Punjab: In this landmark judgement, the Supreme Court gave the guidelines for right of private defence for the citizens. A bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a person of murder, said that when enacting Sections 96 to 106 of the IPC, the Legislature clearly intended to arouse and encourage the spirit of self-defence amongst the citizens when faced with grave danger.” The following are the 10 guidelines which were laid down in this case:
- Self-preservation is a basic human instinct and is a recognized principle of the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
- The right of private defence is available only to one who is suddenly confronted with the necessity of averting an imminent danger which is not of self-creation.
- Reasonable apprehension is enough to put the right of self-defence into operation. An actual commission of the offence is not necessary to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
- The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
- It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
- In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for the protection of the person or property.
- It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
- The accused need not prove the existence of the right of private defence beyond reasonable doubt.
- The Indian Penal Code confers the right of private defence only when the unlawful or wrongful act is an offence.
- A person who is in imminent and reasonable danger of losing his life or limb may, in exercise of self defence, inflict any harm (even extending to death) on his assailant either when the assault is attempted or directly threatened.
- Mithu Pandey v.State: Two persons who were supervising the collection of fruits by labourer from the trees in the land of the accused who had protested for the same. An altercation took place in which the accused who suffered multiple injuries and in apprehension of danger to his life had assaulted the deceased who succumbed to the assault and died. The Patna High Court held that the accused has exercised his right to private defence.
- Jassa Singh v. State of Haryana: The Supreme Court held that the right of private defence of property mentioned under Section 103 would not extend to the causing of the death of the person who has committed such acts of trespass is in respect of an open land. Only a house trespass committed under such circumstances as may have reasonably caused death or grievous hurt is enumerated as one of the offences under Section 103.
The right to private defence is an exception to the commission of an offence and serves as general exceptions to all the offence mentioned in the Indian Penal Code, 1860. It has been mentioned from Section 96 to Section 106. The right to defend oneself or one’s own property in the face of imminent and impending danger is universally recognised as a right to self-defence under the criminal jurisprudence across various countries. In India, the same is given much importance and has been elaborately explained over ten Sections also including within those Sections the limitation to the exercise of right of private defence. If the same limitations are not kept in mind and some offence is committed then such offence shall not be excused by the right of private defence. Hence, while the right to private defence is an all-encompassing exception to all offences the same right should be exercised carefully in order to fully actualise the right.
Warren on Homicide, Vol. I, Article 148, p. 639. (Quoted in Anand&Aiyer: Law of Private Defence, (1964), p. 2)
 Kala Singh v. Emperor, AIR 1933 Lahore 167.
 Snell v. Derriscott, 161 Ala. 259; 49 SC 895.
AIR 1979 SC 577.
AIR 1976 SC 2273.
Raghunath Prasad, Right of Private Defence and Effect of Non-explanation of Injuries, http://www.ijtr.nic.in available at http://ijtr.nic.in/articles/art39.pdf (last seen on 03/07/2018).
Madan Mohan Pandey v. State of U.P, 1991 Cr, L,J, 467 (S.C).
Narain Singh v.State of Punjab (1964) 1 Cr.L.J.730.
AIR 1941 All. 402 (F.B.).
Rizan v. State of Chattisgarh, AIR 2003 SC 976.
Criminal Appeal 1057 of 2002.
 1967 CrLJ 102 (Pat).
2002 CrLJ 563(SC).
About the Author: Asmita is a third-year law student at Chanakya National Law University (CNLU), Patna.