96. Things done in private defence.

-Nothing is an offence which is done in the exercise of

the right of private defence.

COMMENT

A man is justified in repelling force by force in defence of his person, habitation or property
against one who manifestly intends and endeavours by violence or surprise to commit a
felony upon either," said Russel. In these cases he is not obliged to retreat, but may pursue his
adversary till he finds himself out of danger and if in a conflict between them he happens to
kill him, such killing is justifiable. The right is recognised in every system of law and the
extent of the right varies in reverse ratio to the capacity of the State to protect the life and
property of the subject. The reason is obvious, namely the duty to protect the life and
property of the subject is primarily of the State. But no State, howsoever large its resources,
can provide protection in all situations. Therefore, this necessary limitation on the resources
of the State has given to the subject pro tanto the right to take the law into his own hands and
to provide for his own safety.

According to Mayne the whole law of self-defence rests on the following four propositions :

(1) Society undertakes, and, in the great majority of cases, is able to protect private persons
against unlawful attacks upon their person and property;
(2) Where the aid of society can be obtained, it must be resorted to;

(3) Where the aid of society cannot be obtained, individual may do everything necessary to
protect himself;
(4) The violence used must be in proportion to the injury to be averted and must not be
employed for the gratification of vindictive or malicious feelings.

However, there are two important limits on the right of private defence. The first is that the
right of private defence can under no circumstances justify anything which strictly is no
defence but an offence. Secondly, the right cannot be claimed when you have yourself
courted the attack.
In Laxman v. State of Orissa,¹ it was held that the right of private defence, is available only to
one who is suddenly confronted with immediate necessity of averting an impending danger
not of his own creation. The necessity must be present, real or apparent.

It was held in Gordhan v. State of Rajasthan, that the right of private defence should be based
on positive material. It cannot be made out merely on surmises and conjectures. The presence
of injuries on the person of an accused is only a circumstance to be taken into consideration
while evaluating the plea of private defence. Apart from that, the disproportion of injuries
received by the members of the complainant party on one hand and the accused on the other
hand, is a factor to be taken into consideration. Therefore, plea of private defence should not
be readily assumed merely because the accused had sustained insignificant injuries.
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.

This section deals with the extent of the exercise of the right of private defence. Section 99
provides the limitations on the right. These two sections combined together lay down the
principles of the right of private defence. The right is a right of defence both of person and
property, not necessarily one's own person and property but also of the person and property
of others. English law in one sense had at one time been narrower than Indian Law. In
England a man was justified in using force against an assailant in defence of himself and of
his immediate kindred. Later on those in immediate protection of a person were also added.
The circle has been gradually expanding and the right is limited to persons who are in a sort
of community of interest, i.e. both civil and natural relations are included, such as wife-
husband, master-servant, parent-child and landlord-tenant etc. The American law is wider. A
man may do for another what he may do for himself. So is the Indian Law.

In India every person has the right to defend (i) his own body and the body of any other
person against any offence affecting human body; and (ii) the property, movable or
immovable of himself or of any other person against theft, robbery, mischief, or criminal
trespass or attempts to commit any of these offences. Dacoity is only an aggravated form of
robbery and is, therefore, not expressly mentioned, but it was necessary to mention robbery
as besides theft it includes extortion.
In Darshan Singh v. State of Punjab, the court had laid down the principles relating to law of
private defence, whereto need to be taken into consideration. They are briefly summarised as
follows:-
(i) Self-preservation is the basic human instinct and is duly recognised by the criminal
jurisprudence of all the civilized countries.
All free, democratic and civilised nations recognise the right of private defence within certain
reasonable limits.
(ii) The right is available to only one who is suddenly confronted with the necessity of
averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self-defence into operation.
In other words, it is not necessary that there should be an actual commission of the offence in
order to give rise to the right of private defence. (iv) The right of private defence commences
as soon as a reasonable apprehension arises and it is co-terminous with the duration of such
apprehension.
(v) It is unrealistic to expect a person under assault to moderate his defence.
(vi) In private defence, the force used by the accused ought not to be wholly disproportionate
or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open for the
Court to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond
reasonable doubt.
(ix) The IPC confers the right of private defence only when that wrongful or unlawful act is
an offence.
(x) 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.

Under section 97 "every person has a right to defend". The right to protect one's own person
and property against the uncalled for aggressions of others is an inherent right of men. A man
owes a duty to society to protect the person and property of others. It concerns the public
safety that every honest man should consider himself as the natural protector of every other.

Section 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.

Illustrations

(a) Z, under the influence of madness attempts to kill A, Z is guilty of no offence. But A has
the same right of private defence which he would have if Z were sane.

(b) A enters by night a house which he is legally entitled to enter. Z in good faith, taking A
for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no
offence. But A has the same right of private defence against Z, which he would have if Z
were not acting under that misconception.

The principle underlying section 98 is that the right of private defence does not depend upon
the actual criminality of the aggressor but on the wrongful character of the act attempted. If
an act is otherwise an offence the right of private defence arises against the author of the act,
even though he is not punishable by reason of his personal incapacity to commit a crime or
because he acts without the necessary mens rea. For instance, if a lunatic attacks you or runs
away with your purse, your right to defend yourself or to take back your purse is not affected
by the fact that the lunatic lacks capacity to form criminal intent and therefore, his act would
not constitute an offence. Whether the aggressor would be liable for what he has done or not,
one has the right of private defence against his unlawful act.

Acts against which there is no right of private defence.-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 There is no right of private defence in cases in which there is time to
by law. have recourse to the 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 lays down the limits within which the right of private defence should be exercised.
It was held in Madan v. State of Madhya Pradesh, that a plea of right of private defence
cannot be based on surmises and speculation. While considering whether the right of private
defence of the body is available to an accused, it is not relevant whether he may have a
chance to inflict severe and mortal injury on the aggressor. In order to find whether the right
of private defence is available to an accused the entire incident must be examined with care
and viewed in its proper setting.
Explaining the entire gamut of right of private defence, the Supreme Court in the case of
Arjun v. State of Maharashtra, observed:

"Section 97 deals with the subject-matter of the right of private defence. The plea of right
comprises the body or property of the person exercising the right or any other person, and the
right may be exercised in the case of any offence against the body, and in case of offences of
theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to the
property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98
give a right of private defence against certain offences and acts. The right given under
Section 96 and 98 and Sections 100 to 106 is controlled by Sec. 99 of IPC. In order to
succeed in the plea of right of private defence extending to voluntarily causing death (Sec.
100), the accused must show that there were circumstances giving rise to reasonable grounds
for apprehension that death or grievous hurt would be caused to him."

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 that 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.]
By Criminal Law Amendment Act of 2013 which came into force on 3rd day of February,
2013, a new clause has been added in section 100 of the Indian Penal Code. Since section 100
deals with those cases where the right of private defence of body extends to causing of death,
the seventh clause adds a new clause seventh whereby an act of throwing or administering
acid or an attempt to throw or administer acid which may reasonably cause the apprehension
of grievous hurt has been made an additional ground for causing death in self defence.
The law authorises a man, who is under a reasonable apprehension that his life is in danger or
his body in risk of grievous hurt, to inflict death upon his assailant either when the assault is
committed or directly threatened. But the apprehension must be reasonable and not an
imaginary one. The injury inflicted must also be proportionate to and commensurate with the
quality and character of the act it is intended to meet
.
101. When such right extends to causing any harm other than death-It 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.

While dealing with the right of private defence of the body, sections 100 and 101 must be
read together. Under this section any harm short of death can be inflicted in exercising the
right of private defence of the body in any case which does not fall within the provisions of
section 100. In case any harm short of death is caused in the exercise of the right of private
defence the accused is required to prove only that he did not violate the limits laid down in
section 99 of the Code.

Where a plain clothed policeman lawfully attempted to arrest A and A mistook him for a
robber and attacked with excessive and unreasonable force, A will be liable for causing injury
to the policeman. The offence apprehended was only arrest and not robbery, therefore, A had
no reasonable cause to believe the policeman to be a robber even though he was not acting
under colour of his office. Here, the offence apprehended does not fall within clause (6) of
section 100 but is one falling under section 101, I.P.C. Since section 101 operates subject to
the limitations laid down by section 99 which does not justify causing of more harm than is
necessary in self-defence, A would be liable.

In Yogendra Morarji v. State of Gujarat, there was some dispute with the accused over
payment of amounts claimed by deceased and others in respect of digging of a well in
accused's land. While the accused was returning home in a jeep two persons raised their
hands signalling to the accused appellant to stop the vehicle, while their companions also
came close to jeep. On this the appellant took out his revolver and fired three shots in quick
succession resulting in the death of one person. In doing so he did not wait to assess the
necessity of firing in such a quick succession and then wait to see the effect of the action
taken in exercise of self-defence. Thus he exceeded the right of private defence given to him
under section 101.
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.
This section provides when the right of private defence of body commences and till what
time it continues. It commences as soon as a reasonable apprehension of danger to the body
arises and it continues as long as such apprehension of danger to the body continues. The
right commences only on a reasonable apprehension of danger to the body caused by an
attempt or threat to commit an offence. It is not necessary that the actual offence must have
been committed. That is, no actual injury needs to be received before the right is exercised.
There must be an attempt or threat and an apprehension of danger in consequence thereof.
For instance, if a man is preparing himself, as by seizing a dangerous weapon in such a way
that he manifestly intends immediate violence, this seems sufficient justification for the
exercise of the right, for his conduct amounts to a threat and the other has reason to consider
the danger to be imminent.

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 i offence of any of the descriptions hereinafter enumerated, namely: First.-Robbery ; an

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 enumerates the cases in which the right of private defence of property extends to
the causing of death. A person may cause death in safeguarding his own property or the
property of someone else when there is a reason to apprehend that the person whose death has
been caused was about to commit one of the offences mentioned in this section or to attempt
to commit one of those offences. However, in the State of U.P. v. Shiv Mural, a new
approach was adopted in this connection. In judging whether the action of the accused in
causing injuries to the victim in the purported exercise of right of self-defence is justified or
not, and whether it ceases to be an offence one has primarily to look into the bona fides of the
accused in causing such injuries. In cases where there is marginal excess of the exercise of
such right, be possible to say that the means which a threatened person adopts, it may b or the
force which he uses should not be weighed in golden scales and in judging whether or not the
right of private defence existed it would be inappropriate to adopt tests of detached
objectivity which would be so natural in a courtroom.
104.When such right extends to causing any harm other than death-It 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.
This section justifies causing any harm short of death in the exercise of the right of private
defence of property if the offence committed or attempted to be committed is theft, mischief,
or criminal trespass simpliciter This right is subject to the restrictions mentioned in section 99
of the Code. As a consequence of section 104 persons already in possession of land have a
right to inflict any necessary injury short of death in the exercise of the right of private
defence of property to maintain the possession and eject the accused. This section does not
justify causing death in exercise of the supposed right of private defence.

In Kunwar Sen v. Virsen, B was passing on a pathway running through the field of the
accused. When B was in the midst of the field, accused C, D and E suddenly appeared with
lathis and kulhari and interrogated B. B begged to be excused and promised not to pass on
that passage again. Without listening to B's promises the accused attacked B with their
respective weapons. B received nine injuries and his ulna bone of right arm was fractured. It
was held that the accused were liable for causing grievous hurt and were not entitled to the
defence under this section because they had exceeded the limits laid down in section 99 of the
Code.
A finds crops sown by him being uprooted by B. Without having recourse to police help, he
seeks to protect his property and avoid further damage to by attacking and causing injury to
B. In the fight that ensues B inflicts a knife wound on A which causes A's death. Here A on
finding that damage was being caused to his property was justified in taking all reasonable
steps to prevent further damage to it and the fact of not seeking police help would not deprive
him of his right of private defence. Since A only caused injuries which, being short of death,
he was justified in causing B would be liable for causing A's death under section 304 IP.C.
The Supreme Court in A.R. Yalve v. State of Maharashtra, held that the right of private
defence under Section 103 or 104 is not available in cases where the accused does not have
right, title, interest or possession over the disputed land.

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.

This section indicates the commencement and continuance of the right private defence of
property.
First clause. In all offences against property where the right of private defence is available,
the right commences when a reasonable apprehension of danger to the property commences.
For the commencement of the right of private defence, commencement of actual danger to
the property is not necessary, but merely reasonable apprehension of danger would be
sufficient." This means one can act before actual harm is done. It is not a right of retaliation,
so one need not wait until the aggressor had started committing the offence which occasions
the exercise of the right"
Second clause.-The right of private defence of property against theft continues till (1) the
offender has effected his retreat with the property; or (2) the assistance of public authorities is
obtained, or (3) the property has been recovered. In the opinion of H.S. Gour this section does
not say what becomes of the right if anyone of the contingencies is satisfied but the property
remains unrecovered. He says the primary object of the right is to enable the owner to recover
his property, therefore, the right exists till the purpose has been attained.
Third clause. According to clause third of Section 105, in case of offence of robbery which is
an aggravated form of theft or extortion the right of private defence against robbery continues
so long as the offender causes or attempts to cause to any person death, hurt or wrongful
restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint
continues. The question is that whether in case of robbery, the owner of property may cause
death of the robber when he meets him later with the property robbed. The answer obviously,
is 'No', because the use of the word "instant" in this clause is important. The right of private
defence of property exists only so long as there is fear of instant death or instant hurt or
instant personal restraint in the course of committing robbery. But when the robbers leave the
place with the robbed property and thereafter the owner sees them with his property, he can
recover it no doubt but in this attempt he cannot cause the death of robber because then there
would be no fear of instant death, hurt or restraint to the owner of property. The right to cause
death in exercise of right of private defence exists only in the course of robbery of property
being committed.
Fourth Clause. Against criminal trespass, the person in possession of the property has the
right of private defence so long as the trespass continues.

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.
Illustration

A is attacked by a mob who attempt to murder him. He cannot effectively exercise his right
of private defence without firing on the mob, and he cannot fire without risk of harming
young children who are with the mob. A commits no offence if by firing he harms any of the
children.
This section lays down that under certain circumstances the right of private defence of body
extends to the causing of harm to innocent persons.It is to be noted that this section applies
only to those cases where there is a reasonable apprehension of death and of no other harm
lesser than death viz., grievous hurt. Of course, harm caused to innocent persons must have
been necessary and it must not be excessive as the limitations imposed by Section 99 of the
Code shall apply to this section also by virtue of Section 97 of the Code. This section also
justifies the causing of harm to innocent persons by the person who faces reasonable
apprehension of death.