LAW SUBSTANTIVE CRIMINAL LAW LAW OF PRIVATE DEFENCE

LAW SUBSTANTIVE CRIMINAL LAW LAW OF PRIVATE DEFENCE

Quadrant- I- Description of the Module Description of Module Subject Name Law Paper Name Law of private defence Module Name/Title Right to private defense of body and property Module Id Module 25 Pre-requisites A preliminary understanding of the basic principles of criminal law Objectives To understand the concept of private defence To determine the limits of the right to private defence To analyse the context in which right to private defence can be properly used Keywords Private defence- burden of proof Component II e-text LAW OF PRIVATE DEFENCE A state is under obligation to protect life, limb and property of its subject. However, it is not possible for a state to extent its help to all individuals at all times and in all the cases. In such a situation, an individual, in pursuit of his basic instinct of self preservation, will be forced to resort to all the possible means at his command to protect himself and his property. Where an individual citizen or his property is faced with a danger and immediate aid from the state machinery is not readily available, the individual citizen is entitled to protect himself and his property 1. It based on the concept of self preservation. The exercise of the right of private defence must never be vindictive or malicious. It is a right of defence, not of retribution, expected to repeal unlawful aggressions and not as retaliatory measure. It also recognises 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 to be averted or which is reasonably apprehended and should not exceed its limits. The right of private defence is based on the cardinal principal that the primary duty of a man is to help himself. 1 Yogendra Morarji v. State of Gujarath, AIR 1980 SC 660 & Jai Dev v. State of Punjab, AIR 1963 SC 612,

The right to private defence originates from the idea that a person has an inherent right to protect himself by effective self resistance against unlawful aggressor and no individual expected to run away but to retaliate when his life, limb or property is in jeopardy. It rest upon the general principal that where a crime is endeavoured to be committed by force, it is lawful to repeal that force in self defence. Learning out Come This module will enable the learners to : i. Understand rationales of private defence ii. When the right of private defence is available and against whom iii. When right to private defence comes to an end The concept of self defence is included in the Indian Penal Code from Section 96 to 106 of Chapter IV under heading of the right of private Defence. All the provisions have to read together to have proper grasp of the scope and limitations of the right of private defence. The whole of self defence rests on these propositions: 1. Every person is entitled to protect himself and others against unlawful attacks upon their person and property. 2. Where its aid can be obtained, it must be resorted to. 3. Where its aid cannot be obtained, the individual may do everything that is necessary to protect himself. 4. But the violence used must be in proposition to the injury to be averted, and must not be employed for the gratification of vindictive or malicious feelings. If we take a comparative analysis, apparently we can say Indian law on the subject of private defence is much wider in scope than the Anglo- American legal system. In India the right of private defence is available not only for the protection of the life and property of a person himself but also of the person and property of others. But in English Law one can exercise this right only in defence of himself and his immediate kindred. Section 96 gives statutory recognition to the right of private defence, stating that nothing is an offence which is done in exercise of right of private defence. But this right is not absolute. It is subject to the limitations contained in section 99 to 105. The right under section 96 is basically preventive in nature and not punitive. It is exercised only to repeal unlawful aggression and not to punish the aggressor for the offence committed by him. The question

whether the exercise of right of private defence is preventive or not is always a question of fact. The Supreme Court held that having received injuries on their heads on account of the assault made by the deceased, the accused person were well within their right to cause such injuries, which were likely to cause the death of the deceased 2. In another instance, when the occurrence originated the accused was not armed with any weapon. It was only in such a dangerous situation the accused who was an army personnel in order to scare away the crowed fired certain shots in the air and thereafter realising that it did not have any effect on the aggressor surging towards his house and constrained to fire on the crowed which resulted the death of the deceased and injuries to the witness. The apex court held the accused fired shots only in the exercise of his right of private defence which is not an afterthought 3. A mere apprehension is not enough, it should be a reasonable apprehension and to attract the general exception there should be material to show that death or grievous hurt could otherwise have been the result. When there is no such apprehension, causing death of the deceased and causing injuries to another person by firing two shots cannot be justified 4. One of the ingredient in the case of private defence is element of threat either to body or property, but here the question is in the case of free fight are they entitled to claim the protection of self defence. An appropriate test for determining as to whether a fight is a free fight or not is to see whether the parties voluntarily entered into fight with mutual interest to harm each other. In every free fight both the parties are aggressors and none of them is entitled to claim the right of private defence The question who attacked first is immaterial. In Vishava v,. State of Maharashtra 5, held that in a free fight there is no right of private defence to either party and each one is responsible for his own acts. It only a weapon in the hands of a person to evade from imminent threat or reasonable apprehension of danger either to a person or some other with respect to his body or property and cannot be exercised in a free fight where persons agreed to injure each other. Here again another question is when five or more persons come together to form an assembly in order to assert their private defence either in respect of their person, body or property, such an assembly, can we call it as an unlawful assembly. This issue came before the Supreme Court in numerous cases and it retreated that such assembly cannot call it as unlawful assembly and in such cases ingredients of conspiracy as well as abetment will not attract. However, the moment when they use unlawful force or exercise more force than needed, they constitute the offence of unlawful assembly. In State of 2 Raghavan Achari Alias Njoonjappan v. State of Kerala, AIR 1993 SC 203 3 Nagendra Pal Singh v. State of Utter Pradesh. AIR 1993 SC 950 4 Kulwath singh v. State of Punjab, AIR 1994 SC 1271. 5 AIR 1978 SC 414

Bihar v. Nathu Pandey 6, the Supreme Court held that an assembly cannot be designated as unlawful assembly, if its object is to defend property or body by the use of force within the limit prescribed by law. Can a person exercise his right of private defence against Public servants or any other person acting under authority of law?. The answer to this question springs on the fundamental principle that right to private defence is not available against the lawful acts. In kanwar singh v. Delhi Administration 7, held when a party is exercising a lawful act under law or any authority, the accused has no right to prevent / exercise right of private defence. Further the aggressor has no right of private defence, held in Chaco v. State of Kerala 8. This would be so even if the person exercising the right of private defence has the better of the aggressor, provided, he does not exceed the right because the moment he exceeds it, he commits an offence. As far as the person acting in good faith under authority is concerned he can exercise his right of private defence 9. Further the state can prosecute the hinder under section 332 or 353 of Indian Penal Code. Under section 100 10, the right of private defence of body extends to cause the death of the assailant. It is based on four cardinal conditions, such as, the accused must be free from fault in bringing about the encounters; there must be present an impending peril to life or great bodily harm; there must be no safe or reasonable mode of escape by retreat; there must have been a necessity for taking life, held in Balber Singh v. State of Punjab. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. Killing in exercise of private defence would be justified only if there was an honest and well founded belief in the imminence of danger. If after sustaining a serious injury, there is no apprehension of further danger to the body, then obviously the right to put defence would not be available. Therefore, as soon as reasonable 6 (1969) 2 SCC 207 7 AIR 1965 SC 871 8 MANU/KE/0067/1964 9 Section 99 states the circumstances in which there is no right to private defence. Firstly, there is no right to private defence against an act done or attempted to be done by or by the direction of a public servant. The public servant must have done the act in good faith and under colour of his office, even though the act may not be justified by law. Secondly, there is no right to private defence in case in which there is time to recourse to the protection of public authorities. (the mere fact that the police station is not very far from the place of incidence cannot deprive a person of his right of private defence.). Thirdly, in no case private defence shall extend to infliction of more harm than is necessary for the purpose of defence. 10 Section 100 provides the right of private defence of body extends to the causing of death to the assailant. if the offence is an assault of,resulting in the apprehension of causing death; resulting in the apprehension of causing grievous hurt; with the intention of committing rape; with the intention of gratifying unnatural lust; with the intention of kidnapping or abduction; with the intention of wrongfully confining a person which may reasonably cause the apprehension that the man may not be able to contact public authorities for help.

apprehension of danger arises, the right of private defence can be exercised. Here we have to read this limitation along with section 102 and 105 states the commencement and continuance of the right of private defence. The right commences as soon as a reasonable apprehension of danger to human body or to property arises from an attempt or threat to commit the offence, though the offence may not have been committed. The right comes to an end as soon as the threat of assault has ceased and the apprehension of danger has been removed 11. In yeswanth Rao v. State of Madhya Pradesh 12, the minor daughter of the accused was sexually molested by the deceased. After seeing this he hit the deceased with a spade. He died due to injury of the liver. The supreme court held that since the girl was a minor, the question of consent does not arise and the act of the deceased would amounts to rape and hence father is in the defence of the body of his daughter, was justified in exercising his right of private defence. Further section 99 clearly states the limitations of section 100. The right of private defence is also available against an offence committed by a person who might not be criminally liable for his act on account of reason of youth, want of maturity of understanding, unsoundness of mind or intoxicating or misconception on the part of the doer 13. This section ensures that a person does not lose his right of private defence merely because the opposite party is legally incompetent to commit the offence and is protected because of legal abnormality. The right of private defence is available only against the commission of offences. If the acts of the lunatics, intoxicated persons or acts done under mistake are not offences. Section 98 is based on the fact that right of private defence arises from the human instinct of self preservation and not from any supposed criminality of the person who poses danger to body and property. In Munshi Ram v. Delhi Administration 14, the court observed that even if an accused does not plead self defence, it is open to the court to consider such plea if the same arises from the material on record. It is to be noted that right to private defence also extends to the taking of risk to life of innocent persons under the circumstances that there is a reasonable apprehension of death or the person is so situated that he cannot effectively exercise the right of private defence without doing harm to innocent person. 15 11 In case of theft the right of private defence continues till the offender has effected his retreat. In case of house breaking by night the right of private defence continues so long as house breaking continues. 12 AIR 1992 SC 1683 13 Section 98 14 1968 (2) SCR 455, AIR 1968 SC 702 15 Section 106

One of the cardinal features of Indian criminal law is the right to private defence is available against property of his own or another person. It is available only when there is theft, robbery, mischief or criminal trespass or an attempt to commit any one of the offence or it extend to death on fulfilment of conditions mentioned in section 103. In Hukum singh v. State of U.P 16, it was held that the owner of a land has the right to use necessary force, if the trespasser fails to remove the trespass. So far as the defence of land against trespasser is concerned, a person is entitled to use necessary and moderate force for preventing the trespass or to eject the trespasser. For the said purpose, the use of force must be the minimum necessary or reasonably believed to be necessary. A reasonable defence would mean a proportionate defence. Ordinarily the, a trespasser would be first asked to leave and if the trespasser fights back, a reasonable force can be used. Defence of dwelling house, however, stand on a different footing. The law has always looked with special indulgence on a man who is defending his dwelling against those who would unlawfully evict him; as for the house of everyone is to him as his castle and fortress 17 The supreme court in Puran Singh v. State of Punjab laid down four criteria s which the trespasser may entitled to exercise right of private defence of property and person. They are, the trespasser must be in actual physical possession of the property over a sufficient long period; the possession must be in the knowledge, either express or implied, of the owner or without any concealment and which contains an element of animus possidendi; the process of disposition of the true owner by the trespasser must be complete and final; one of the usual rests to determine settled possession of the true owner by the trespasser in the case of cultivable land, would be whether any crop has been grown on the land. If the crop has been grown, even the true owner has no right to destroy the crop grown by the trespasser. Burden of proof In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused or in other words it is the fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. In Woolmington V. DPP 18, just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to the guilt. In either case, he is entitled to the benefit of doubt. 16 AIR 1961 SC 1541 17 Bishna @ Bhiswadeb Mahato V. State of West Bengal, 2005 (8) SCC 180. 18 1935 AC 462

But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove innocence and it s sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the injury of innocence. However, Section 105 of the Indian Evidence Act 19 is an exception to this fundamental jurisprudence, says if the accused person claims the protection of right of private defence or under general exception the burden is upon him 20. This is a rebuttable presumption. This burden will be discharged by showing preponderance of probability in favour of the plea on the basis of material on record. Under this exemption the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a prudent man. If the materials placed before the court, such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of prudent man, the accused will have discharged his burden 21. In Emperor v. Damapala 22, the High court interpreted section 105 and held even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within the exception or exceptions pleaded, the accused is entitled to be acquitted if upon the consideration of evidence as a whole the court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exemption pleaded. In Parbhoo v. Emperor 23, held that section 105 is stated in two forms, that of a rule as to burden of proof and that of a presumption and that the burden of proving the guilt of the accused always rests on the prosecution and never shifts and the doubt cast in connection with the right of private defence must be a reasonable doubt, it castes a doubt and if there is 19 Section 105 When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances 20 Section 105 has a special characteristic. It is only applicable to criminal cases when an accused is interested to take benefit of the general exceptions of the Indian Penal Code or of any of the special laws. The general principles relating to burden of proof are: (i) the accused is always presumed to be innocent, and (ii) it is prosecution to prove the guilt of the accused. It is only after the prosecution to discharge its initial traditional burden establishing the complicity of the accused. Under section 105 the burden lies on the accused. Once the prosecution has been successfully proveed the guilt beyond reasonable doubt that the accused had committed offence, it will immediately shifted to the accused who, if he so desires, may set up a defence of bringing his case within general exceptions of I.P.C. or within special exception or proviso contained in any part of the same code or any other law. 21 Justice K.A. Abdul Gafoor, Law of Private Defence, Universal Law Publishing Co, Delhi (1 st edn- 2006), p. 32. Also see Yogendra Mararji v. State of Gujarat, AIR 1980 SC 660 22 AIR 1937 Rang 83 23 AIR 1941 All 402

such a reasonable doubt, it caste a doubt on the entire case of the prosecution and that the result is that the accused gets the benefit of doubt. The presumption laid down in section 105 might come into play but it does not follow there from that the accused must convict even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case. Benefit of doubt is applicable not only to the offences but to the exceptions also held in Santhosh Kumar v. state of Kerala 24 However in Rishikesh Singh v State 25, the question came up for consideration before larger bench consisting of nine judges was, whether the dictum in Parbhoos Case is still good law on the ground that some of the decisions of the supreme court have cast a cloud of doubt. A majority of seven judges approved the principle laid down in the parbhoos case. Beg, J. Observed three propositions which are often used by the supreme court in several judgements such as firstly,, that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that accused has not proved his plea fully; secondly, that the obligatory presumption at the end of section 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of offence with which he is charged; and thirdly, if the doubt, though raised due to evidence in support of the exception pleaded, is reasonable and affects an ingredient of the offence with which the accused is charged, the accused is entitled to acquittal. As i read the answer of the majority in Parbhoos case, i find it based on these three propositions which provide the ratio decedendi and this is all that needs to be clarified. When the right of private defence is pleaded the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary either for warding off the attack or for stalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self defence is on the accused and the burden stand discharge by showing preponderance of probabilities in favour of that plea on the basis of the material on record. It is well settled that when the accused set up a plea of self defence he need not prove his case beyond reasonable doubt. 26 The burden is on the accused to show that he had a right of private defence though he need not prove the same beyond reasonable doubt held in Mohanan v. State of Kerala 27. Prosecution has to prove the case beyond 24 1986 KLT SN.41 P.24. 25 AIR 1970 All 51 26 Lakshmi singh v. Poonam Singh, AIR 2003 SC 3204 27 2000 (2) KLT 562

reasonable doubt whereas accused has only to prove his case as probable or considering the preponderance of probabilities his defence story is a possible story held in Noushad Vs State of Kerala 28. Self defence Principles Every person is entitled to protect himself and others against unlawful attacks upon their person and property. Where its aid can be obtained, it must be resorted to. Where its aid cannot be obtained, the individual may do everything that is necessary to protect himself. But the violence used must be in proposition to the injury to be averted, and must not be employed for the gratification of vindictive or malicious feelings The right of private defence come to an end when danger to the body or property ceases. 28 2006 [1] KLT 717

Right of private defence Of his own body and property Against the body & property of others Against unsound person, lunatic etc Against person innocent Private defence is not available When it may extend to cause death No reasonable apprehension of death or grievous hurt; bonafide act of a public servant and there is time to recourse to the protection of the public authorities. With respect to body An assault as may reasonably cause the apprehension of death, grievous hurt, rape, gratifying unnatural lust, kidnapping or abduction, wrongful confinement, throwing acid. With respect to property Robbery; house breaking by night; mischief by fire on any residence and theft, mischief or house trespass as may reasonably cause the apprehension od death or grievous hurt. With respect to innocent persons Allows when there is a reasonable apprehension of death and unable to exercise the right of private defence without harming to an innocent person Commencement and continuance of private defence- it commences when the danger to the property and body begins; continues with the danger and ends when danger ends.

Burden of proof initial burden of proof is upon the accused; no need to prove his case beyond reasonable doubt but only to prove his case as probable or considering the preponderance of probabilities that his defence story is a possible story where as Prosecution has to prove the case beyond reasonable doubt whereas accused has only to