Right of Private defence

The Right of Private defense: (Section 96 to 106):

One of the fundamental principles of law is that every individual has a right to defend himself and his property.

This is the doctrine of self-defense or self-preservation. Sec. 96 to 106 has recognized this rule and have provided for the limits within which it may be exercised. This may be discussed under two heads:

a) Right of person

b) Right of property

1. Right of person:

A) Every person has a right to defend his own body and the body of any other person against any person. (Sec-97)

B) Against a madman etc: The right extends in all circumstances against anyperson who is insane, drunk or who by a reason of youth immaturity is excused under law (Sec- 98)

Eg: Z under madness attempts to kill A.A may defend and even kill Z if circumstances so warrant.

C) Extension of the right: Sec-100 provides as follows :A person who is under a reasonable apprehension that his life is in danger,may to defend himself, voluntarily cause the death of the assailant if:

a) The assault done by him i.e., assailant causes reasonable apprehension of

1) Death or

2) Grievous hurt.

b) Or has assaulted with an intention to commit.-

1) The offence of rape

2) The offence of unnatural lust

3) Kidnapping or abduction or

4) Wrongful confinement, in such circumstances that the defender could not have recourse to public authorities to claim protection.This section empowers a person to defend himself by inflicting injury not greater than what is reasonably necessary. The injury caused in defending must be proportional to and commensurate with the injury received. This is the test.

D) Only in the above circumstances, the right extends to causing death as recourse. But, in all other circumstances, the right extends to causing any injury other than causing death. (Sec-101).

In R

V

 Rose,

H was cutting the throat of his wife, W. Their son saw this and fired at H. H died in consequence. Held, accused is within the limits of private defense. Hence, not guilty.

In Shaku

 V

 Crown

H used force to take away his wife W by force from her father's house. W inflicted injuries to H. H died. Held under the circumstances, W was within her right of defense.

E) Duration: Sec-102 the right of private defense commences as soon as there is a reasonable fear of danger to the body and continues as long as such fear continues.

 In Deo Narain

V

State. Of U. P. 

The Supreme Court has laid down the meaning of “Duration".

Exception:

1) There is no right of private defense against a public servant, if he acts in good faith, under color of his office, though that act may not be strictly according to law. However, if this act causes fear of instant death of grievous hurt, there is a right of private defense. There could have been no recourse to any public authorities. No more harm than is necessary to defend, may be inflicted. (Sec-99)

2) There is no right of self-defense if the public servant states the authority under which he is acting or produces (Warrant etc.) the same when demanded.

2. Private defense of property:

 i) Every person has a right to defend his property, moveable or immoveable. It may be his own or any person's property. The act of the offender must amount to theft, robbery, mischief, criminal trespass or attempt thereof (Sec- 98).

ii) Extent: The right extends to cause death or any other harm to the offender in the following cases:

a) House-breaking by night.

b) Mischief by fire on any building or vessel.

c) Theft, mischief or house-trespass with a fear that the offender would cause death or grievous hurt, if not defended. This is the test adopted (Sec-103).

iii) Duration: Sec-105 the right of private defense commences when there is a reasonable apprehension of danger to property and continues as long as that danger continues. The danger may be due to theft, criminal trespass, mischief or robbery, or housebreaking by night.

Cases:

 In R

V

 Holloway

S, the servant of M, saw a boy B, stealing wood. He tied the boy to a horse's tail and beat him. The horse took fright and B died. Held, no private defense, but a case of murder by S.

In R

 V

 Karim Bux

K saw a thief A, entering the house at night through an aperture in the side-wall. K held down the head of A to prevent him from further entering. A died of suffocation. Held, K not guilty.