Abuse of the Right of Private Defence: Case based Analysis

Article for Blog Post Writing Competition 2011 | by Sarthak Sharma


April 26th, 20115:10 pm


Right of self defence revolves around the general adage that “necessity knows no law” and “it is the primary duty of man to first help himself”. The right of self-preservation is inherent in every person but to achieve that end nothing could be done which militates against the right of another person. The Supreme Court in a case held that right of private defence given by the Penal Code was essentially one of defence or self-protection and not a right of reprisal or punishment. That right was subject to the restrictions indicated in Section 99, which were as important as the right itself. One of them was that harm inflicted in self-defence should be no more than that was legitimately necessary for the purpose of defence. Further, the right was co-terminus with the commencement and existence of a reasonable apprehension of danger to body from an attempt or a threat to commit the offence as stated in Section 102 of IPC. Attack by way of retaliation is not covered by the general exception to criminal liability. Thus when the deceased cultivated a land whole day to the knowledge of the accused and the accused having sufficient time to take recourse to law did not take it and on the contrary he attacked the victim while he was retiring in the evening, this act cannot be translated as an act in exercise of right of private defence and it was an act by way of retaliation and the accused must be held to be guilty[1]. This right proves to be a shield against the evil elements of the society but the problematic area regarding it is what if this shield will be used a sword. The right of private defence  is subject to certain restrictions, first one is that harm inflicted in self-defence must be no more than is legitimately necessary for the purpose of defence an important modification in this restrictions is earlier the main focus was on the weapon used but now the focus is on the part of the body which is attacked therefore in DeoNarain’s Case it has been held that the accused was justified in using his spear though the other party had aimed only a lathi blow on the head, which being a vulnerable part even a lathi blow can prove to be dangerous.[2] The second one is whether the act done in self defence was actually for self defence. The right of private defence is available against an offence and therefore when an act is done in exercise of right of private defence such act cannot give rise to any private defence in favour of the agressor in return. Right of private defence is not available. Thus when the accused himself goes with the gun toattack the victim and the victim in self-defencereattacks, the accused by killing him cannot plead the right of self-defence.[3]

In Hamsa v. State of Kerela[4], the deceased who was the aggressor hit the head of the father of the accused hard by the stick. The father summoned for help and the accused to deter the victim gave him a stab wound with an ordinary knife. Till this time the accused was well within the ambit of self-defence. But, when the accused stabbed him again, he exceeded the right of self defence and his intention to save transformed into intention to kill.

This right of self defence is not available to a person who resorts to retaliation for past injuries, but to him who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be real or apparent, before the antagonist can justifiably be deprived of his life.[5] In considering the plea of self defence not only is the manner of defence to be considered; the time also is important. If the person assaulted does not fall upon the aggressor until the affray is over, or when he is running away, that is revenge and not defence.

Also as according to Section 97 this right vests even in strangers for the defence of the body and property of others. 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.”

The courts have to therefore be careful in seeing that no one on the mere pretext of the exercise of the right of private defence takes side in a quarrel between two or more persons and inflict injuries, on the one or the other. So the third party seeing that one of his enemy is involved in a quarrel can inflict injuries on him on the mere pretext of exercising the right of private defence. So in a case when two parties are having a free fight without disclosing as to who is the initial aggressor it may be dangerous as a general rule to clothe either of them or his sympathiser with a right of private defence. If however one of them is shown to be committing an offence affecting human body then that would of course seem to give rise to such a right. If there is no initial right of private defence then there can hardly be any question of exceeding that right.[6]

Biggest lacuna of Section 100 of Indian Penal Code is that it makes it clear that Right of private defence can also be claimed against unarmed assailant also, therefore the accused has a proper justification even if he has given a perfect shape to his criminal intent. Such an extended ambit makes it a little unjustifiable but every coin has two sides and this provision also has its merits attached to it.

In a very recent judgment of Darshan Singh vs State Of Punjab &Anr[7], A dispute arose in a family. Deceased Gurcharan Singh was the brother of Bakhtawar Singh and uncle of Darshan Singh. The appellant Darshan Singh fired only after the serious incised wound by a Gandasa was inflicted on his father Bakhtawar Singh and at that time in order to save his life he fired 2 shots which hit the deceased Gurcharan Singh leading to his death. The trial court after marshalling the entire evidence came to the conclusion that, the probabilities of the case are much more in favour of the defence than in favour of the prosecution. The possibility of the injuries having been caused to Gurcharan Singh by Darshan Singh in exercise of private defence cannot be ruled out.

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.[8]

This proposition of law in itself is contradictory to the basic philosophical justification of the right to self-defence. This right has been granted to protect oneself from any harm which is probable to be inflicted by a person but how is it justified to kill the other for the same.


[1]RamrajShukla v. State of M.P. 1992 CrLJ 1223 (MP)

[2]DeoNarain, 1973 CrLJ 677(SC)

[3] State of U.P  v. Ram Swaroop , AIR 1974 SC 1570.

[4]1989 CrLJ NOC 158(Ker).

[5]Balbir Singh v. State of Punjab, 1959 CrLJ 1905.

[6]Munney Khan v. State of M.P. , AIR 1971 SC 1491

[7] Judgment as on 15th January 2010.

[8]Supra.Note 45.

 

Article by-

Sarthak Sharma,

Student, National Law Institute University, Orissa

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

 

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