Inportant Case Laws on Scope and Foundation of Right to Private Defence

SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE

       The rule as to the right of private defence has been stated
by Russel on Crime (11th Edn., Vol.1, p.491) thus:

"….. a man is justified in resisting by force anyone  who manifestly
intends and endeavours by violence   or surprise to commit a known
felony against either his person, habitation or property. In these
cases he is not obliged to retreat, and may not merely resist the
attack where he stands but may indeed pursue his adversary until the
danger is ended, and if in a conflict between them he happens to kill
his attacker, such killing is justifiable."

When enacting sections 96 to 106 of the Indian Penal Code, excepting
from its penal provisions, certain classes of acts, done in good faith
for the purpose of repelling unlawful aggressions, the Legislature
clearly intended to arouse and encourage the manly spirit of
self-defence amongst the citizens, when faced with grave danger.
The law does not require a law-abiding citizen to behave like a coward
when confronted with an imminent unlawful aggression. As repeatedly
observed by this court there is nothing more degrading to the human
spirit than to run away in face of danger. The right of private
defence is thus designed to serve a social purpose and deserves to be
fostered within the prescribed limits.

   Hari Singh Gour in his celebrated book on Penal Law of India
(11th Edition 1998-99) aptly observed that self-help is the first rule
of criminal law.   It still remains a rule, though in process of time
much attenuated by considerations of necessity, humanity, and social
order. According to Bentham, in his book `Principles of Penal Laws'
has observed "the right of defence is absolutely necessary".    It is
based on the cardinal principle that it is the duty of man to help
himself.

   Killing in defence of a person, according to the English law,
will amount to either justifiable or excusable homicide or chance
medley, as the latter is termed, according to the circumstances of the
case.

   But there is another form of homicide which is excusable in
self-defence. There are cases where the necessity for self- defence
arises in a sudden quarrel in which both parties engage, or on account
of the initial provocation given by the person who has to defend
himself in the end against an assault endangering life.

   The Indian Penal Code defines homicide in self-defence as a form
of substantive right, and therefore, save and except the restrictions
imposed on the right of the Code itself, it seems that the special
rule of English Law as to the duty of    retreating will have no
application to this country where there is a real need for defending
oneself against deadly assaults.

   The right to protect one's own person and property against the
unlawful aggressions of others is a right inherent in man.   The duty
of protecting the person and property of others is a duty which man
owes to society of which he is a member and the preservation of which
is both his interest and duty. It is, indeed, a duty which flows from
human sympathy.

As Bentham said: "It is a noble movement of the heart, that
indignation which kindles at the sight of the feeble injured by the
strong. It is noble movement which makes us forget our danger at the
first cry of distress….. It concerns the public safety that every
honest man should consider himself as the natural protector of every
other." But such protection must not be extended beyond the
necessities of the case, otherwise it will encourage a spirit or
lawlessness and disorder. The right has, therefore, been restricted to
offences against the human body and those relating to aggression on
property.

   When there is real apprehension that the aggressor might cause
death or grievous hurt, in that event the right of private  defence of
the defender could even extend to causing of death. A mere reasonable
apprehension is enough to put the right of self-defence into
operation, but it is also settled position of law that a right of
self-defence is only right to defend oneself and not to retaliate. It
is not a right to take revenge.

   Right of private defence of person and property is recognized in
all free, civilised, democratic societies within certain reasonable
limits. Those limits are dictated by two considerations:

(1) that the same right is claimed by all other members of the society and

(2) that it is the State which generally undertakes the responsibility
for the maintenance of law and order.

The citizens, as a general rule, are neither expected to run away for
safety when faced with grave and imminent danger to their person or
property as a result of unlawful aggression, nor are they expected, by
use of force, to right the wrong done to them or to punish the wrong
doer of commission of offences.

   A legal philosopher Michael Gorr in his article "Private
Defense" (published in the Journal "Law and Philosophy"  Volume 9,
Number 3 / August 1990 at Page 241) observed as under:

"Extreme pacifists aside, virtually everyone agrees that it is
sometimes morally permissible to engage in what Glanville Willams has
termed "private  defence", i.e., to inflict serious (even lethal) harm
upon another person in order to protect oneself or  some innocent
third party from suffering the same".

   The basic principle underlying the doctrine of the right of
private defence is that when an individual or his property is faced
with a danger and immediate aid from the State machinery is not
readily available, that individual is entitled to protect himself and
his property. The right of private defence is available only to one
who is suddenly confronted with the necessity of averting an impending
danger not of self creation. That being so, the necessary corollary is
that the violence which the citizen defending himself or his property
is entitled to use must not be unduly disproportionate to the injury
which is sought to be averted or which is reasonably apprehended and
should not exceed its legitimate purpose.

   This court in number of cases have laid down that when a person
is exercising his right of private defence, it is not possible to
weigh the force with which the right is exercised.   The principle is
common to all civilized jurisprudence. In Robert B. Brown v. United
States of America (1921) 256 US 335, it is observed that a person in
fear of his life in not expected to modulate his defence step by step
or tier by tier. Justice Holmes in the aforementioned case aptly
observed "detached reflection cannot be demanded in the presence of an
uplifted knife".

   According to Section 99 of the Indian Penal Code the injury
which is inflicted by the person exercising the right should
commensurate with the injury with which he is threatened. At the same
time, it is difficult to expect from a person exercising this right in
good faith, to weigh "with golden scales" what maximum amount of force
is necessary to keep within the right every reasonable allowance
should be made for the bona fide defender. The courts in one voice
have said that it would be wholly unrealistic to expect of a person
under assault to modulate his defence step by step according to
attack.

   The courts have always consistently held that the right of
private defence 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 of the IPC. According to the combined effect of two
clauses of section 100 IPC 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. 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.

……….


Darshan Singh Vs State of Punjab / Criminal Appeal 1057 of 2002

Date of Judgment : 15.01.2010



   We deem it appropriate to briefly discuss the principle of right
of private defence and how the courts have crystallized this principle
in some important judgments.

   Relevant provisions dealing with the right of private defence
are sections 96 and 97 of the Indian Penal Code.

"96. Things done in private defence. – Nothing is an offence which is
done in the exercise of the right of private defence.

97. Right of private defence of the body and of property. – Every
person has a right subject to the restrictions contained in Section
989, to defend–

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

Secondly.- The property, whether moveable or immoveable, 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."

 Section 100 of the Indian Penal Code is extracted as under:

"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."

 Section 100 of the Indian Penal Code justifies the killing of an
assailant when apprehension of atrocious crime enumerated in several
clauses of the section is shown to exist. First clause of Section 100
applies to cases where there is reasonable apprehension of death while
second clause is attracted where a person has a genuine apprehension
that his  adversary is going to attack him and he reasonably believes
that the attack will result in a grievous hurt. In that event he can
go to the extent of causing the latter's death in the exercise of the
right of private defence even though the latter may not have inflicted
any blow or injury on him.

       It is settled position of law that in order to justify the
act of causing death of the assailant, the accused has simply to
satisfy the court that he was faced with an assault which caused a
reasonable apprehension of death or grievous hurt. The question
whether the apprehension was reasonable or not is    a    question
of   fact   depending   upon   the   facts   and circumstances of each
case and no strait-jacket formula can be prescribed in this regard.
The weapon used, the manner and nature of assault and other
surrounding circumstances should be taken into account while
evaluating whether the apprehension was justified or not?


BRIEF ENUMERATION OF IMPORTANT CASES:

   The legal position which has been crystallized from a large
number of cases is that law does not require a citizen, however
law-abiding he may be, to behave like a rank coward on any occasion.
  This principle has been enunciated in Mahandi v. Emperor [(1930) 31
Criminal Law Journal 654 (Lahore); Alingal Kunhinayan & Another v.
Emperor Indian Law Reports 28 Madras 454; Ranganadham Perayya, In re
(1957) 1 Andhra Weekly Reports 181.

   The law clearly spells out that right of private defence is
available only when there is reasonable apprehension of receiving the
injury.      The law makes it clear that it is necessary that the
extent of right of private defence is that the force used must bear a
reasonable proportion of the injury to be averted, that is the injury
inflicted on the assailant must not be greater than is necessary for
the protection of the person assaulted. A person in fear of his life
is not expected to   modulate his defence step by step, but at the
same time it should not be totally disproportionate.

   A Full Bench of the Orissa High Court in State of Orissa v.
Rabindranath Dalai & Another 1973 Crl LJ 1686 (Orissa) (FB) summarized
the legal position with respect to defence of person and property
thus: "In a civilized society the defence of person   and   property
of   every   member     thereof   is   the responsibility of the
State. Consequently, there is a duty cast on every person faced with
apprehension of imminent danger of his person or property to seek the
aid of the machinery provided by the State but if immediately such aid
is not available, he has the right of private defence.

   In Laxman Sahu v. State of Orissa 1986 (1) Supp SCC 555 this
court observed that it is needless to point out in this connection
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 creation.

   In Raghavan Achari v. State of Kerala 1993 Supp. (1)SCC 719 this
court observed that "No court expects the  citizens not to defend
themselves especially when they have already suffered grievous
injuries".

    In Jagtar Singh v. State of Punjab AIR 1993 SC 970 this court
held that "the accused has taken a specific plea of right of
self-defence and it is not necessary that he should prove it beyond
all reasonable doubt. But if the circumstances warrant that he had a
reasonable apprehension that death or grievous hurt was likely to be
caused to him by the deceased or their companions, then if he had
acted in the right of self-defence, he would be doing so lawfully."

    In Puran Singh & Others v. The State of Punjab (1975) 4 SCC 518
this court observed that in the following circumstances right of
private defence can be exercised :-

i. There is no sufficient time for recourse to the public authorities

ii. There must be a reasonable apprehension of death or grievous hurt
to the person or danger to the property concerned.

iii. More harm than necessary should not have been   caused.

    In Bhagwan Swaroop v. State of Madhya Pradesh (1992) 2 SCC 406
this court had held as under:-

"It is established on the record that Ramswaroop was being given lathi
blows by the complainant party and it was at that time that gun-shot
was fired by Bhagwan Swaroop to save his father from further blows. A
lathi is capable of causing a simple         as well as a fatal
injury. Whether in fact the injuries actually caused were simple or
grievous is of no consequence. It is the scenario of a father being
given lathi blows which has to be kept in mind and we are of the view
that in such a situation a son   could reasonably apprehend danger to
the life of his father and his firing a gun-shot at that point of time
in defence of his father is justified."

…….

     In Kashmiri Lal & Others v. State of Punjab (1996) 10 SCC 471,
this court held that "a person who is unlawfully attacked has every
right to counteract and attack upon his assailant and cause such
injury as may be necessary to ward off the apprehended danger or
threat."

     In James Martin v. State of Kerala (2004) 2 SCC 203, this
court again reiterated the principle that the accused need not prove
the existence of the right of private defence beyond 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.

   In Gotipulla Venkatasiva Subbrayanam & Others v.The State of
Andhra Pradesh & Another (1970) 1 SCC 235, this court held that "the
right to private defence is a very valuable right and it has been
recognized in all civilized and democratic societies within certain
reasonable limits."

   In Mahabir Choudhary v. State of Bihar (1996) 5 SCC 107 this
court held that "the High Court erred in holding that the appellants
had no right to private defence at any stage.However, this court
upheld the judgment of the sessions court holding that since the
appellants had right to private defence to protect their property, but
in the circumstances of the case, the appellants had exceeded right to
private defence.       The court observed that right to private
defence cannot be used to kill the wrongdoer unless the person
concerned has a reasonable cause to fear that otherwise death or
grievous hurt might ensue in which case that person would have full
measure of right to private defence including killing".

   In Munshi Ram & Others v. Delhi Administration (1968) 2 SCR 455,
this court observed that "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 burden of
establishing that plea is on the accused and that burden can be
discharged by showing preponderance of probabilities in favour of that
plea on the basis of materials available on record.

   In State of Madhya Pradesh v. Ramesh (2005) 9 SCC 705, this
court observed "every person has a right to defend his own body and
the body of another person against any offence, affecting the human
body. The right of self defence commences as soon as reasonable
apprehension arises and it is co-terminus with the duration of such
apprehension. Again, it is defensive and not retributive right and can
be exercised only in those cases where there is no time to have
recourse to the protection of the public authorities."

   In Triloki Nath & Others v. State of U.P. (2005) 13 SCC 323 the
court observed as under:-

"No decision relied upon by the Appellants lays down a law in absolute
terms that in all situations   injuries on the persons of the accused
have to be  explained. Each case depends upon the fact situation
obtaining therein."

   In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, the
court observed that "the right of self-defence is a very valuable
right, serving a social purpose and should not be construed narrowly.
  Situations have to be judged from the subjective point of view of
the accused concerned in the surrounding    excitement     and
confusion   of    the   moment,confronted with a situation of peril
and not by any microscopic and pedantic scrutiny.   In adjudging the
question as to whether more force than was necessary was used in the
prevailing    circumstances    on    the   spot      it   would   be
inappropriate, as held by this court, to adopt tests by detached
objectivity which would be so natural in a court room, or that which
would seem absolutely necessary to a perfectly cool bystander.
The person facing a reasonable apprehension of threat to himself
cannot be expected to modulate his defence step by step with any
arithmetical exactitude of only that much which is required in the
thinking of a man in ordinary times or under normal circumstances."

   In Jai Dev v. State of Punjab AIR 1963 SC 612 the court held as under:-

"as soon as the cause for the reasonable apprehension has disappeared
and the threat has either been destroyed or has been put to rout,
there can be no occasion to exercise the right of private defence."

   In order to find out whether right of private defence is
available or not, the injuries received by the accused, the imminence
of threat to his safety, the injuries caused by the accused and the
circumstances whether the accused had time to have recourse to public
authorities are all relevant factors to be considered.

   In Buta Singh v. The State of Punjab (1991) 2 SCC 612, the court
noted that a person who is apprehending death or bodily injury cannot
weigh in golden scales in the spur of moment and in the heat of
circumstances, the number of injuries required to disarm the
assailants who were armed with weapons. In moments of excitement and
disturbed mental equilibrium it is often difficult to expect the
parties to preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to him where
assault is imminent by use of force, it would be lawful to repel the
force in self-defence and the right of private- defence commences, as
soon as the threat becomes so imminent.  Such situations have to be
pragmatically viewed and not with high-powered spectacles or
microscopes to detect slight or even marginal overstepping. Due
weightage has to be given to, and hyper technical approach has to be
avoided in considering what happens on the spur of the moment on the
spot and keeping in view normal human reaction and conduct, where
self-preservation is the paramount consideration. But, if the fact
situation shows that in the guise of self-preservation, what really
has been done is to assault the original     aggressor,   even   after
 the   cause   of   reasonable apprehension has disappeared, the plea
of right of private defence can legitimately be negatived. The court
dealing with the plea has to weigh the material to conclude whether
the plea is acceptable. It is essentially, as noted above, a finding
of fact."

 The following principles emerge on scrutiny of the following judgments:

(i) Self-preservation is the basic human instinct and  is duly
recognized by the criminal jurisprudence  of all civilized countries.
All free, democratic and   civilized countries recognize the right of
private  defence within certain reasonable limits.

(ii)    The right of private defence is available only to 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. 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.

(iv) The right of private defence commences as soon as a reasonable
apprehension arises and it is co-terminus with      the   duration
of     such   apprehension.

(v)    It is unrealistic to expect a person under assault to modulate
his defence step by step with any arithmetical exactitude.

(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 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 Indian Penal Code confers the right of private    defence
only when that unlawful or wrongful 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.

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