Whether the right to Private Defence under Section 96 IPC extends to causing death

The author in this article discusses whether right to Private Defence under Section 96 IPC extends to causing death. The author in this article also discusses the relevant and important case laws.

The Legal maxim “Actus Non Facit Reum Nisi Mens Sit Rea” states, generally, a person cannot be guilty of a crime if the two elements are not present viz actus reus “the guilty act” and mens rea “the guilty mind”, this maxim explicates that the act of a person causing harm (actus reus) to a legal right shall be by the person’s criminal intent (mens rea) to cause harm to a legal right, to proclaim the person guilty of a criminal act. Let us discuss the right to private defence.

Private defence is a right made available to every citizen of India codified by the Indian statutes to shield themselves from any extraneous force that can, or may, result into any harm or injury caused due to an impromptu action. Under Section 96 of The Indian Penal Code 1860 (hereinafter referred as “The IPC”), contemplates “things done in private defence” which states, “Nothing is an offence which is done in the exercise of the right of private defence”, in this research we are exploring its wider aspect, whether it extends to causing death.

The Law of Private Defence

The right of private defence is not applicable when the accused has provoked the attack. When the accused goes with a gun to attack the victim and the victim in self-defence re attacked accused by killing the victim, the accused cannot plead right of self-defence.[1]

The Supreme Court[2] discussed in detail the ambit of the right of private defence of body and its limitations contemplating

(a)        There is no right of private defence against an act which is not in itself an offence under the code.

(b)        The right commences immediately as a reasonable apprehension of danger to the body arises by an attempt or threat to commit any offence. Although the offence may, or may not have been committed, it is co-terminus with the duration of such apprehension.[3]

(c)        It is defensive and not a punitive or retributive right. Therefore, in no case, more harm than is necessary to inflict in defence is permissible.

(d)       The right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the crime enumerated in the six clauses of section 100 of the IPC.

Under the IPC, Section 97 elucidates “Right of private defence of the body and of property” states; Every person has a right, subject to the restrictions under section 99, to private 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.

While the right to Private Defence is a tool by the State for its citizens where a victim can perform an actus reus with reasonable force, the right is meant to curb acts where oppression of victim’s effort for own safety can be labelled as victim’s cowardice which would lead to handicap a person its own safety, it is not a sheer right to inflict pain, but it is conditional and subject to limitations with the amount of harm to be reasonable.

In deciding the question of fact, the court must take into consideration all the surrounding circumstances. It is not necessary for the accused to plead in so many words explaining he acted in self-defence. If the circumstances show that the right of private defence was lawfully exercised, it is open to the court to consider such a plea. In a given case, the court can consider it even if the accused has not taken it if the same is able to be considered from the material on record.[4]

While the question of the burden of proof, in this case, an accused taking the plea of the right of private defence is not required to call evidence, he can establish his plea by reference, to circumstances transpiring from the prosecution evidence itself. The accused need not prove the existence of the right of private defence beyond a reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. ([5])([6])

Whether Right to Private Defence extends to causing death

The Indian Penal Code 1860, under sections 100 and 103 contemplates the legitimacy of the right to private defence of the body extends to causing death, and the right of private defence of property extends to causing death, respectively.

Right to Private Defence of the Body extends to Causing Death

Under section 100 of the IPC enumerates, apart from the exceptions as mentioned under the section 99 of the IPC, 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 enumerates namely seven occasions.

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

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

Thirdly.           An assault with the intention ofcommitting  of rape.

Fourthly.         An assault made with intending of gratifying unnatural lust.

Fifthly.                        An assault made intending of kidnapping or abducting.

Sixthly.            There must be no safe or reasonable mode of escape from one’s confinement.

Seventhly.[7]      An act of throwing or administering acid or any attempt to throw or administer acid which may reasonably lead to an apprehension that resulting into a grievous hurt will be otherwise consequence of such act.

In Wassan Singh v State of Punjab,[8] it was held that a reasonable apprehension of the accused that grievous hurt will be otherwise caused to him must be analysed from the subjective perspective of the accused and cannot be subjected to microscopic and pedantic scrutiny.

In Nand Kishore Lal v. Emperor,[9] the Sikhs abducted a Mohammedan married woman and converted her religion to Sikhism. Nearly after a year of the abduction, relatives of the woman’s husband came and demanded her return back to his family from the accused. The latter refused to fulfil this demand and the woman voluntarily stated her unwillingness to return to her Muslim husband. Further her Muslim husband’s relatives attempted to take her away by force. The accused resisted this forceful attempt and in doing so a blow on the head of the woman’s assailants was inflicted by one of them, which resulted in the former’s death. Further, it was held that in the capacity of the right of accused to defend the woman with private defence of the body, against her assailants extended under section 100 of the IPC to causing of the death and they had, therefore, committed no offence.

In Yogendra Morarji vs State of Gujarat,[10] it was contemplated that, the right extends to the killing of the actual or potential assailant when there is] a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. For our purpose, only the first two clauses of Section 100 are relevant the combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled.

The following principles emerged in Darshan Singh v. State of Punjab & Anr,[11] it set guidelines for India for applicability of right to private defence of a body

  • Self-preservation is the fundamental human instinct and is duly acknowledged by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries acknowledge the right of private defence within certain reasonable limits.
  • The right to private defence is available only to one who is suddenly confronted with the necessity to preclude a danger which is forthcoming and not of any self-creation.
  • A mere reasonable apprehension is enough to put the right of self-defence applicable. In other words, it is not necessary that there should be an actual commission of the act of offence in order to emerge the right of private defence. It is sufficient if the accused apprehended and observed that such an offence is likely to be executed if the right of private defence is not exercised.

(iv)      The right of private defence is in operation immediately as a reasonable apprehension arises, and it is co-terminus with the period of such apprehension.

  • It is unrealistic to anticipate the victim under assault to modulate the defence in a systematic manner with any arithmetical exactitude.
  • In private defence, the energy used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property, only necessary force can be implied to which is necessary to intercept apprehension.
  • Even if the accused does not plead self-defence voluntarily, it is open to establish such a plea if the same is understandable from the material on record.
  • The accused need not prove the existence of the right of private defence beyond a reasonable doubt; in other words, reasonable circumstantial evidence is sufficient.

(ix)       IPC confers the right of private defence only when that unlawful or wrongful act is an offence.

  • A person who is under critical imminent and reasonable danger of threat to his life or losing any limb may exercise self-defence, to inflict any harm, even extending to death of the assailant either the moment when assault is attempted or when directly threatened.

Right to Private Defence of the Property extends to Causing Death

As contemplated under section 103 of the IPC, the right of private defence of property extends, inclusive of limitations mentioned under section 99 of the IPC, the voluntary causing of death or of any such any other harm to the malefactor for private defence of property, only when the offence, the commission of which, or the attempt to commit which, occasions the exercise of the right, be an offence of any of the prescribed hereinafter namely;

First.                Commission of a Robbery;

Secondly.        House-breaking by night, at the period of night, is explicitly mentioned;

Thirdly.           Anyone committed mischief by fire on any tent, vessel or building, which tent, vessel or building is used as a human dwelling or as a place for the storage of the property;

Fourthly.         House-trespass, mischief or theft under such occurrences where it may result in reasonably causing apprehension that fatality or grievous hurt will be the otherwise consequence if such right of private defence is not exercised.

State Amendments are further made by the State of Karnataka, Maharashtra, Uttar Pradesh which is exercised within the respective jurisdictions of the State, with reference to the Section 103 of the IPC.

The right commences immediately as a reasonable apprehension of danger to the body arises by an attempt or threat to commit any offence. Although the offence may, or may not have been committed, it is co-terminus with the duration of such apprehension

In Jassa Singh v State of Haryana,[12] The Supreme Court of India stated that, the Right of Private defence of property will not be applicable when causing of death of the person who had committed such acts, if the act of trespasses in respect of open land. Strictly a house trespass in such conditions which may reasonably result into apprehension that death or grievous hurt would be the otherwise aftermath and is enumerated as one of the offences under section 103.

In G. V. S. Subbrayanam v. State of A. P.,[13] The Supreme Court Stated that, the principle envisaging the right of private defence is that, the court will not go into the question of excess by conducting a test of detached objectivity. But the right of self defence itself is subject to certain limitations, amongst them one crucial restriction is that the harm inflicted in self defence must not be supplemental than which is legitimately necessary for the purpose of private defence. However, the force inflicted for private defence cannot be weighed in golden scale.

In Mithu Pandey And Ors. v. State of Bihar,[14] two persons equipped with ‘danta’ and ‘tangi’ and were supervising collection of fruit by workers extracted by the trees which were in the possession of the persons accused, who also protested against the illegitimate act. In the proceedings one of the accused suffered multiple injuries due to the assault. The accused exercised force which caused death. The High Court Patna held that the accused were entitled to the right of private defence even to the extent of causing death as the fourth clause of this section was applicable.

In Sukumaran v. State Rep. By The Inspector Of Police,[15] It was held the right to self-defence extends to protection of another person’s life and property. Court acquits a Tamil Nadu forest ranger, who was jailed for shooting an alleged sandalwood smuggler in 1988.

Discussion

The Right to Private Defence as per the Section 96 of the IPC defines the right conferred to the citizens where the State is allowing its citizens a right to self-defence and not to act with cowardice, exercising this right only when it is sine qua non to perform.

Furthermore, this right extends to causing death under section 100 and 103 of the IPC, under the head “Right to Private Defence of the Body extends to Causing Death” and “Right to Private Defence of the Property extends to Causing Death” respectively.

Indian courts have held matters of private defence carving precedence with lucidity towards a legitimate interpretation of the statute, estopping any misuse of the statute, giving wider clarity for protection of victims disguised as accused in lieu of protection of an accused disguised as victim.

Conclusion

Thus it can be concluded that, under the IPC, provisions relating to the right to private defence are contemplated under sections 96 to section 106, where the right of homicide Se defendendo viz. right to self-defence sheathing the right to private defence is an essential right which is conferred by Section 96 of the IPC, and the right extends to causing death, whilst the right is not absolute, it is in lieu enforceable only when reasonable circumstances eventuate which could otherwise cause grievous harm or death of the person and, or, person’s property, stating the harm inflicted by the claimant person of self-defence, should not endeavour unnecessary supplemental force than the amount required for the purpose of self-defence.

Also read Self Defence: A Necessary Evil


[1] State of U.P. v Ram Swarup AIR 1974 SC 1570: Cr LJ 1035

[2] Yogendra Morarji vs State of Gujarat AIR 1980 SC 660

[3] Also contemplated under Section 102 of the IPC

[4] Munshi Ram And Others vs Delhi Administration 1968 AIR 702, 1968 SCR (2) 408

[5] Sekar v State of Rajasthan 2003 SCC (Cri) 16:2003 Cr LJ 53

[6] Rizan v State of Chhattisgarh AIR 2003 SC 976: 2003 Cr LJ 1226

[7] Inserted in the IPC by Act 13 of 2013, s. 2 (w.e.f. 3-2-2013)

[8] (1996) 1 SCC 458: 1996 SCC (Cri) 119: 1996Cr LJ 878

[9] AIR 1924 Pat. 789

[10]AIR 1980 SC 660, 1980 CriLJ 459, (1980) 2 SCC 218

[11] CRIMINAL APPEAL NO. 1057 of 2002: 15th January, 2010, Supreme Court of India

[12] AIR 2002 SC 520: (2002) 2 SCC 481: 2002 SCC (Cri) 363: 2002 Cr LJ 563

[13] AIR 1970 SC 1079: 1970 Cr LJ 1104

[14] AIR 1966 Pat 464, 1967 Cri LJ 102

[15] Criminal Appeal No. 5 of 2009, decided on 07 March, 2019, at Supreme Court of India