‘Private Defence’

as a right
under the Indian Penal Code

Authored by:
Anmol Xess
PRN No:
18010122016
Indian Penal Code
Three-year LL. B
2018-2021
 TABLE OF CONTENTS

 INTRODUCTION 3
 MEANING AND TYPES 4
 IN THE INDIAN LEGAL SYSTEM 5
 EVOLUTION OF THE RIGHT 11
 IN VARIOUS LEGAL SYSTEM 13
 JUDICIAL VIEW (case-wise) 14
 CONCLUSION 17

2
PRIVATE DEFENCE (as a right)

The state has the duty to protect its citizens and their property from harm. However,
circumstances may arise when the aid of state machinery is not available and there is
imminent danger to a person or his property. In such situations, a person is allowed to use
force to ward-off the immediate threat to his or someone else’s person or property. This is the
right of private defence. The people are endowed with this right so that they can defend
themselves and their property and not hesitate due to fear of prosecution. The right, in some
circumstances even extends to causing death of the person who poses such a threat. But such
a right is subject to some restrictions and not available in all circumstances. It is only allowed
when the danger to life or property is immediate and the accused is not the aggressor. The
right of private defence is not available against public servants acting in exercise of their
lawful powers. A person is allowed to use only reasonable force; force that is proportionate to
the impending danger.”

INTRODUCTION

Sections 96 to 106 of the Indian Penal Code state the law relating to the right of private
defence of person and property. The provisions contained in these sections give authority to a
man to use necessary force against an assailant or wrong-doer for the purpose of protecting
one’s own body and property as also another’s body and property when immediate aid from
the state machinery is not readily available; and in so doing he is not answerable in law for
his deeds.

Self-help is the first rule of criminal law. The right of private defence is absolutely necessary
for the protection of one’s life, liberty and property. It is a right inherent in a man. But the
kind and amount of force is minutely regulated by law. The use of force to protect one’s
property and person is called the right of private defence1.

150 years ago, during colonialism, an enthusiastic Macaulay proposed a right of private
defence in his draft code with the ambitious project of encouraging a ‘manly spirit’ among

1
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).

3
the ‘natives’. The ideal Indian would stand his ground in the face of danger and not hesitate
to defend his own body or property or that of another. He would respond with defensive force
to prevent certain crimes, even to the extent of causing death. As a general idea, the right of
private defence permits individuals to use defensive force which otherwise be illegal, to fend
off attacks threatening certain important interests. Like the defence of necessity, the right of
private defence authorizes individuals to take the law into their own hands2.

‘Private Defence’ MEANING AND TYPES

The expression ‘private defence’ that has been used in the Indian Penal Code, 1860, has not
been defined therein. Thus, it has been the prerogative of the judiciary to evolve a workable
framework for the exercise of the right. Thus, in India, the right of private defence is the right
to defend the person or property of himself or of any other person against an act of another,
which if the private defence is not pleaded would have amounted to a crime. This right
therefore creates an exception to criminal liability. Some of the aspects of the right of private
defence under the IPC are that no right of self-defence can exist against an unarmed and
unoffending individual, the right is available against the aggressor only and it is only the
person who is in imminent danger of person or property and only when no state help is
available. The right of private defence is a natural right which is evinced from particular
circumstances rather than being in the nature of a privilege3.

However, the most important principle is that the right of private defence requires that the
force used in the defence should be necessary and reasonable in the circumstances. But, in the
moments of disturbed mental condition, this cannot be measured in golden scales. Whether
the case of necessity exists must be determined from the viewpoint of the accused and his act
must be viewed in the light of the circumstances as they appear on such occasion. Specific
limitations have also been provided for when the right cannot be validly exercised and also
the provision specifies clearly the cases in which the right can extend to the causing of death
of the aggressor. The reasonable apprehension can only be justified if the accused had an
honest belief that there is danger and that such belief is reasonably warranted by the conduct
2
https://www.academia.edu/1437252/Private_Defence_in_the_Indian_Penal_Code (last visited on Sept. 30,
2018).
3
http://www.legalsutra.com/right-of-private-defence/Criminal-Law-Right-of-Private-defence (last visited on
Sept. 30, 2018).

4
of the aggressor and the surrounding circumstances. This brings in an iota of an objective
criterion for establishing ‘reasonableness.’ The imminence of danger is also an important
prerequisite for the valid exercise self-defence 4. Thus, there should be a reasonable belief that
the danger is imminent and that force must be used to repel it.

Nature of The Right

It is the first duty of man to help himself. The right of self-defence must be fostered in the
citizens of every free country. The right is recognized in every system of law and its extent
varies in inverse ratio to the capacity of the state to protect life and property of the citizens. It
is the primary duty of the state to protect the life and property of the individuals, but no state,
no matter how large its resources, can afford to depute a policeman to dog the steps of every
rouge in the country. One thing should be clear that there is no right of private defence when
there is time to have recourse to the protection of police authorities. The right is not
dependent on the actual criminality of the person resisted. It depends solely on the wrongful
or apparently wrongful character of the act attempted and if the apprehension is real and
reasonable, it makes no difference that it is mistaken. An act done in exercise of this right is
not an offence and does not, therefore, give rise to any right of private defence in return5.

‘Private Defence’ IN THE INDIAN LEGAL SYSTEM

Jeremy Bentham, an English Legal Luminary, once opined, “This right of defence is
absolutely necessary. The vigilance of the Magistrates can never make up for vigilance of
each individual on his own behalf. The fear of the law can never restrain bad men so
effectually as the fear of the sum total to individual resistance 6. Take away this right and you
become, in so doing, the accomplice of all bad men.” This right is based on two principles,

 It is available against the aggressor only, and

 The right is available only when the defender entertains reasonable apprehension.

There are three tests for ascertaining reasonable apprehension; they are the objective,
subjective and expanded objective tests. While objective test emphasizes as to how in a

4
http://laws.puchd.ac.in/includes/theses/2010/20101012155857-Summar-Dharam-Pal-Punia.pdf
5
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).
6
http://www.e-lawresources.co.uk/Public-and-private-defences.php (last visited on Sept. 30, 2018).

5
similar circumstance an ordinary, reasonable, standard and average person will respond, the
subjective test examines the mental state based on individual attitude. However, expanded
objective test, being a combination of aforesaid two tests, bases its inquiry to determine
whether or not the individual acted as a reasonable person. Right of private defence serves a
social purpose and the right should be liberally construed. Such a right is not only a
restraining influence on corrupt characters but also encourages manly spirit in a law-abiding
citizen. It should not be narrowly construed as it necessitates the occasions for the exercise of
this right as an effective means of protection against wrong doers.

The Right to private defence of a citizen, where one can practically take law in his own hands
to defend his own person and property or that of others, is clearly defined in Section 96 to
Section 106 of the Indian Penal Code.

‘Section 96’ talks about things done in private defence –

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

Right of private defence cannot be said to be an offence in return. The right of self-defence
under Section 96 is not absolute but is clearly qualified by Section 99 which says that the
right in no case extends to the inflicting of more harm than it is necessary for the purpose of
defence. It is well settled that in a free fight, no right of private defence is available to either
party and each individual is responsible for his own acts. The right of private defence will
completely absolve a person from all guilt even when he causes the death of another person
in the following situations, i.e.

 If the deceased was the actual assailant, and

 If the offence committed by the deceased, which occasioned the cause of the exercise
of the right of private defence of body and property falls within anyone of the six or
four categories enumerated in Sections 100 and 103 of the penal code.

6
‘Section 97’ talks about 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-

1st.His own body, and the body of any other person, against any offence affecting
the human body;
2nd.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 for criminal trespass.

This Section limits exercise of the right of private defence to the extent of absolute necessity.
It must not be more than what is necessary for defending aggression. There must be
reasonable apprehension of danger that comes from the aggressor. This Section divides the
right of private defence into two parts, i.e. the first part deals with the right of private defence
of person, and the second part with the right of private defence of property7.

‘Section 99’ lays down the 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 color of his office, though that act, may not
be strictly justifiable by law.

Section 99 lays down the conditions and limits within which the right of private defence can
be exercised. The first two clauses provide that the right of private defence cannot be invoked
against a public servant or a person acting in good faith in the exercise of his legal duty
provided that the act is not illegal8. Similarly, clause three restricts the right of private
defence if there is time to seek help of public authorities. And the right must be exercised in
proportion to harm to be inflicted. In other words, there is no right of private defence:

7
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).
8
http://www.indiankanoon.org/ (last visited on Sept. 30, 2018).

7
  Against the acts of a public servant; and
 Against the acts of those acting under their authority or direction;
 When there is sufficient time for recourse to public authorities; and
 The quantum of harm that may be caused shall in no case be in excess of harm that
may be necessary for the purpose of defence.
 Section 100 specifies 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
that 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 acid or attempting to throw acid.

To invoke the provisions of Section 100 of I.P.C., four conditions must exist: -

 The person exercising the right of private defence must be free from fault in bringing
about the encounter,
 There must be an impending peril to life or of great bodily harm,
 There must be no safe or reasonable mode of escape by retreat,
 There must have been a necessity for taking life.

8
‘Section 101’ prescribes 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 death9.

‘Section 102’ is very important as it deals with the 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. The apprehension of danger must be reasonable, not fanciful. For example,
one cannot shoot one’s enemy from a long distance, even if he is armed with a dangerous
weapon and means to kill. This is because he has not attacked you and therefore there is no
reasonable apprehension of attack. In other words, there is no attack and hence no right of
private defence arises. Moreover, the danger must be present and imminent10.

‘Section 103’ specifies 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: Robbery, House-breaking by night, Mischief by fire committed
on any building, tent or vessel, which building, tent of vessel is used as a human
dwelling, or as a place for the custody of property, Theft, mischief, or house-trespass,

9
http://www.legalsutra.com/right-of-private-defence/Criminal-Law-Right-of-Private-defence (last visited on
Sept. 30, 2018).
10
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).

9
 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 103 provides the right of private defence to the property whereas Section 100 is
meant for exercising the right of private defence to the body of a person. It justifies homicide
in case of robbery, house breaking by night, arson and the theft, mischief or house trespass
which cause apprehension or grievous harm. If a person does not have possession over the
property, he cannot claim any right of private defence regarding such property 11. Right to
dispossess or throw out a trespasser is not available to the true owner if the trespasser has
been successful in accomplishing his possession to his knowledge. This right can be only
exercised against certain criminal acts that are mentioned under this section.

‘Section 104’ tells us 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 wrongdoer of any harm other
than death. This Section cannot be said to be giving a concession to the accused to
exceed their right of private defence in any way 12. If anyone exceeds the right of
private defence and causes death of the trespasser, he would be guilty under Section
304, Part II. This Section is corollary to Section 103 as Section 101 is a corollary to
Section 100.

‘Section 105’ prescribes the 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 affected his retreat with the property or either the

11
http://www.e-lawresources.co.uk/Public-and-private-defences.php (last visited on Sept. 30, 2018).
12
http://www.scienceblogs.com/deltoid/2000/01/01/self-defence/ (last visited on Sept. 30, 2018).

10
 assistance of the public authorities is obtained, or the property has been recovered 13.
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
of 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.

‘Section 106’ talks about 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 or
private defence extends to the running of that risk.

EVOLUTION OF THE RIGHT of ‘Private Defence’

In Roman law, homicide was considered to be an act by which the life of a human-being was
taken away. There were two degrees of criminal homicide, namely, murder and
manslaughter, and two degrees of homicide that did not expose a person to punishment,
namely, justifiable and excusable. Self-defence was placed in the category of justifiable
homicide. In self-defence violence was lawful: ‘Vim enim vi defendere omnes leges emniaque
jure permittunt’ (A man, therefore, incurs no liability, if he kills another’s slave who attacks
him.)14 . The Justinian code and the Twelve Tables reiterated this right of private defence- the
Code holding that no greater force than what was sufficient to ward off the threatened danger

13
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).
14
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).

11
was permitted and the Tables on the other hand, allowing killing in such a case without
restrictions regarding it to be permissible self-redress rather than self-defence.

Under English law the status of the right of self-defence underwent a series of changes
through the ages. In the ancient period, there was absolute liability even for homicide
committed se defendendo. In the Medieval period, the theory of pardon developed and it
became excusable, whereas in the Modern Age, homicide committed in self-defence is
treated as justifiable, because it is presumed that such an act is not backed with evil intent. In
the early days, the law regarded the word and the act of the individual but it did not search the
heart of the man. It was the age of strict liability 15. Man was held responsible for his acts
irrespective of his intentions. His mental state was not considered when determining liability
for the commission of the crime. It was the external conduct and the injury upon which
liability was imposed. The accidental injuries and the injuries inflicted during self-defence,
also attracted liability. Thus, criminal liability was not related to the evil intention of the
actor.

However, in the 13th century there was a shift from strict liability and emphasis was laid on
the mental element. During this period, killing was justified in a few exceptional cases. One
who killed in misadventure, or in self-defence was still guilty of a crime, although he
deserved a pardon from the King16. During the Medieval period, though the accused obtained
pardon yet he forfeited his goods for the crime committed in self-defence. The moral sense of
the community could not tolerate indefinitely the idea that a blameless self-defender was a
criminal. Ultimately, the jury was allowed to give a verdict of not guilty in such cases.
Pardon of the King soon became a formality in such cases and thus grew the concept of
excusable homicide. The act of pardon was a kind of excuse 17. The word excuse itself
denoted the condonation of wrong committed by the offender. Blackstone perceived the
essence of excuses to be ‘the want or defect of will’. This all changed in the modern period.
In modern times, there is a presumption that there is no mens rea in the homicides committed
in self-defence and as such it has become a justifiable general defence in law. Thus, now no
criminal liability is attached to the accused in such cases. This is in conformity with the
provisions of Article 2 of the European Convention on Human Rights.

15
http://www.icidr.org/ijalsg_vol3no1_april2012/ThePragmaticNatureunderCriminalJurisprudenceinNigeria.pdf
16
http://www.scienceblogs.com/deltoid/2000/01/01/self-defence/ (last visited on Sept. 30, 2018).
17
http://www.e-lawresources.co.uk/Public-and-private-defences.php (last visited on Sept. 30, 2018).

12
Thus, in modern times every evolved legal system has accepted the right of self-defence as a
universal one.

‘Private Defence’ IN VARIOUS LEGAL SYSTEM

ENGLISH LAW

As the common law system does not provide a statutory definition of self-defence, it is often
the opinions of legal authorities that are relied upon. Black’s Law Dictionary enumerates two
elements that are necessary to constitute self-defence, namely-

 Accused does not provoke difficulty, and

 There must be impending peril without convenient or reasonable mode of escape.

On the other hand, Glanville Williams’ analysis of the elements is more comprehensive: –

 The force is threatened against the person,

 The person threatened is not the aggressor,
 The danger of harm is imminent,
 The force is unlawful,

The person threatened must actually believe that a danger exists, that the use of force is
necessary and that the kind and amount of force being used is required in the circumstances,
and that the above beliefs are reasonable18.

AMERICAN LAW

The position under American law is also very similar. Great importance is given to the
following concepts when dealing with the concept of self-defence.

 Requirement of reasonableness (a reasonable and honest belief is essential),

 Only that amount of force should be used which reasonably appears necessary to
prevent the threatened harm.

Thus, it can be seen that in the various legal systems of the world, there are certain common
established principles pertaining to self-defence.

18
http://www.icidr.org/ijalsg_vol3no1_april2012/ThePragmaticNatureunderCriminalJurisprudenceinNigeria.pdf

13
JUDICIAL VIEW on ‘Private Defence’

The protection of life and property is axiomatic in every civilized society and because it is
impossible for the State to do so on every occasion – as law enforcement officers cannot be
omnipresent, the individual is given the right of private defence. The right of private defence
legally accords to the individuals the right to take reasonably necessary measures to protect
themselves under special circumstances. Notably, on the execution of the private defence
provisions in the Penal Code, the framers said “we leave it still in a very imperfect state…we
are inclined to think that it must always be one of the least exact parts of every system of
criminal law19.” This suggests that they recognized the necessity for latent ambiguity to allow
judges the flexibility to read and apply the provisions so as to achieve fairness.

However, the local courts have overlooked this discretion conferred upon them and instead
opted for a far too restrictive (and even unreasonable) interpretation of the provisions to the
extent where private defence is hardly adequate as a defence, defeating the intention of the
provision. The inconsistency between the judicial interpretation and the intention of the Code
framers is exemplified in the interpretation of “reasonable apprehension” under Sections 100
and 10220. Evidently, the local courts have adopted a strict objective approach in determining
“reasonable apprehension”, ignoring its inherent ambiguity. This is in contrast to the current
English law that judges the nature of the danger wholly according to that of the accused’s
perception (purely subjective test).

Darshan Singh v. State of Punjab21

The Supreme Court laid down guidelines for Right of Private Defence for citizens. It
observed that a person cannot be expected to act in a cowardly manner when confronted with
an imminent threat to life and has got every right to kill the aggressor in self-defence. A
bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a
person of murder, said that when enacting Section 96 to 106 of the IPC, the Legislature
19
https://www.academia.edu/1437252/Private_Defence_in_the_Indian_Penal_Code (last visited on Sept. 30,
2018).
20
http://www.legalserviceindia.com/ (last visited on Sept. 30, 2018).
21
Darshan Singh v. State of Punjab & Anr., (2010) 2 SCC 333

14
clearly intended to arouse and encourage the 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. Right of private defence is thus designed to serve a social purpose and deserves to be
fostered within the prescribed limit22.”

The court laid down ten guidelines where right of self-defence is available to a citizen, but
also warned that in the disguise of self-defence, one cannot be allowed to endanger or
threaten the lives and properties of others or for the purpose of taking personal revenge. The
apex court concluded by saying that a person who is under imminent threat is not expected to
use force exactly required to repel the attack and his behaviour cannot be weighed on “golden
scales.”

The Court declared their legal position under the following 10 guidelines23:

1. Self-preservation is a 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.
2. 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.
3. 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.
4. The right of private defence commences as soon as a reasonable apprehension arises
and it is co-terminus with the duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate his defence step by step
with any arithmetical exactitude.
6. 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.

22
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).
23
http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-for-right-of-private-
defence-for-citizens/ (last visited on Sept. 30, 2018).

15
 7. 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.
8. The accused need not prove the existence of the right of private defence beyond
reasonable doubt.
9. The Indian Penal Code confers the right of private defence only when the unlawful or
wrongful act is an offence.
10. 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.

Yogendra Morarji v. State of Gujarat24

The Supreme Court discussed in detail the extent and the limitations of the right of private
defence of body. One of the aspects emphasized by the court was that there must be no safe
or reasonable mode of escape by retreat for the person confronted with an impending peril to
life or of grave bodily harm except by inflicting death on the assailant. This aspect has
created quite a confusion as it indirectly suggests that once should first try to see the
possibility of a retreat than to defend by using force, which is contrary to the principle that
the law does not encourage cowardice on the part of one who is attacked. But another
viewpoint is that this retreat theory in fact is an acceptance of the English common law
principle of defence of body or property under which the common law courts always insisted
to look first as to whether the accused could prevent the commission of crime against him by
retreating.

Nand Kishore Lal v. Emperor25

Accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism.
Nearly a year after the abduction, the relatives of the woman’s husband came and demanded
that she return. The accused refused to comply and the woman herself expressly stated her
unwillingness to re-join her Muslim husband. Thereupon the husband’s relatives attempted to
take her away by force. The accused resisted the attempt and in so doing one of them inflicted
a blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held
24
Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660
25
Nand Kishore Lal v. King-Emperor, AIR 1924 Pat 789

16
that the right of the accused to defend the woman against her assailants extended under this
section to the causing of death and they had, therefore, committed no offence.

Mohinder Pal Jolly v. State of Punjab26

Workers of a factory threw brickbats from outside the gates, and the factory owner by a shot
from his revolver caused the death of a worker, it was held that this section did not protect
him, as there was no apprehension of death or grievous hurt.

Mithu Pandey v. State of Bihar27

Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection of fruit
by labourers from the trees that were in the possession of the accused persons who protested
against the act. In the altercation that followed one of the accused suffered multiple injuries
because of the assault. The accused used force resulting in death. The Patna High Court held
that the accused were entitled to the right of private defence even to the extent of causing
death.

Jassa Singh v. State of Haryana28

The Supreme Court held that the right of private defence of property would not extend to the
causing of the death of the person who committed such acts if the act of trespass is in respect
of an open land. Only a house trespass committed under such circumstances as may
reasonably cause death or grievous hurt is enumerated as one of the offences under Section
103.

CONCLUSION

In general, private defence is an excuse for any crime against the person or property. It also
applies to the defence of a stranger, and may be used not only against culpable but against
innocent aggressors.

26
Mohinder Pal Jolly v. State of Punjab, (1979) 3 SCC 30
27
Mithu Pandey & Ors. v. State of Bihar, AIR 1966 Pat 464
28
Jassa Singh & Ors. v. State of Haryana, (2002) 2 SCC 481

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The defence is allowed only when it is immediately necessary-against threatened violence. A
person who acts under a mistaken belief in the need for defence is protected, except that the
mistake must be reasonable. In principle, it should be enough that the force used was in fact
necessary for defence, even though the actor did not know this; but the law is not clear. There
is no duty to retreat, as such, but even a defender must wherever possible make plain his
desire to withdraw from the combat. The right of private defence is not lost by reason of the
defender’s having refused to comply with unlawful commands.

The force used in defence must be not only necessary for the purpose of avoiding the attack
but also reasonable, i.e. proportionate to the harm threatened; the rule is best stated in the
negative form that the force must not be such that a reasonable man would have regarded it as
being out of all proportion to the danger29.

The carrying of firearms and other offensive weapons is generally forbidden, but (1) a thing
is not an “offensive weapon” if it is not offensive per se and is carried only to frighten; (2) a
person does not “have it with him” if he merely snatches it up in the emergency of defence.

The right of defence avails against the police if they act illegally, but the defender cannot take
benefit from a mistake as to the law of arrest or self-defence 30. The traditional rule is that
even death may be inflicted in defence of the possession of a dwelling.

The occupier of premises may use necessary and reasonable force to defend them against a
trespasser, or one reasonably thought to be a trespasser; and it seems that even a licensee
(such as a lodger) can eject trespassing strangers. It is a statutory offence to set spring guns or
mantraps, except in a dwelling house between sunset and sunrise. It has not been decided
whether the exception operates to confer an exemption from the ordinary law of offences
against the person. Such defences as spikes and dogs are lawful if reasonable 31. Guard dogs
must, by statute, be kept under full control, except in private houses or on agricultural land.

Thus, we can see the right of private defence is very helpful in giving citizens a weapon
which in a case that it’s not misused is subject to certain restrictions, helps them protect their
and others’ lives and property.

29
http://www.jdsupra.com/legalnews/right-of-private-defense-in-india-07062/ (last visited on Sept. 30, 2018).
30
http://www.scienceblogs.com/deltoid/2000/01/01/selfdefence/ (last visited on Sept. 30, 2018).
31
http://www.legalserviceindia.com/article/l470-Private-Defence.html (last visited on Sept. 30, 2018).

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