GENERAL EXCEPTIONS

Right of Private Defense (Ss 96-106)

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 Things done in private defense.-

Section 96.- Nothing is an offence which is done in the exercise of the right of private defense.
.

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Comment.-
  Sections 96 to 106 of the Code state the law relating to
the right of private defense 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 doing so is not answerable in law for his
deeds.

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 Right of private defense.-
  The law of private defense is based on two cardinal
principles, viz.,
(i)  Everyone has the right to defend his own body and
property, as also another’s body and property.
(ii)  The right cannot be applied as a pretence for justifying
aggression for causing harm to another person, nor for
causing more harm than is necessary to inflict for the
purpose of defense.
  The right is essentially of defense not retribution as
pointed out by Russell in ‘Law of Crimes’.

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Scope.-
  Section 96 states the general proposition. However, the right is not
absolute and is subject to restrictions. The subsequent sections 97
to 105 state the limits within which the right can be exercised, the
extent of injury that can be inflicted and against whom these rights
can be exercised.
  The right of private defense will completely absolve a person from
all guilt even when he causes the death of another person in the
following situations, viz.;
(i) If the deceased was the actual assailant, and
(ii) If the offence committed by the deceased which occasioned
the cause of the exercise of right of private defense of body and
property falls within anyone of the six or four categories
enumerated in sections 100 and 103 of the Code respectively, or
was an assault reasonably causing the apprehension of his death, as
explained in section 106 of the Code.
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 Thomas v State of
  In this case the Apex Court held that Madhya Pradesh 1978
the question of right of private defense Cr LJ 528 (MP)
arises when the accused person is left
with only two options, namely, either
to surrender before the aggressor or
to defend himself using reasonable
force.
  The law does not expect a person to
surrender or retreat like a coward,
rather he should defend himself if
there is no time to have recourse to
official authorities for help.

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 Navinchandra v State
  In this case the Apex Court observed of Uttaranchal, AIR
that the defense available to an 2007 SC 363
accused under Section 96 IPC is a
defensive right.
  Therefore, it cannot be used for taking
revenge or to justify offensive assault. If
a person causes serious injury by use
of force against his enemy during hot
exchange of words between the two,
his plea of self defense will fail.

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 Yeshwant Rao v State
  Here, in this case the accused attacked of M.P., AIR 1992 SC
the deceased when he saw the latter in 1683
compromising position with his
(accused’s) daughter.
  Since the victim was a minor girl, the
deceased was guilty of the offence of
rape under Section 375(6), IPC.
  Though the act of sexual intercourse
was not completed, even then the plea
of the accused that he acted in defense
of his daughter was accepted and he
was acquitted by the Court.

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Right of private defense of the body and of
property.-
  Section 97.- Every person has a right, subject to the
restrictions contained in section 99, to defend-
  Firstly. – His own body, and the body of any other person,
against any offence affecting the human body;
  Secondly. – 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 or criminal trespass.

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Scope.-
  Defense of body and property: Section 97 provides that
subject to the restrictions contained in section 99, every
man has a right to defend his own body and the body of
any other person, against any offence affecting the human
body, and to defend his property, and the property of any
other person, whether movable or immovable against
theft, robbery, mischief, or criminal trespass or an attempt
to commit any one of these offences.
  The section divides the right of private defense into two
parts:
i) right of private defense of person
ii) right of private defense of property.

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Contd..
  Defense of body and property of others: The right of
private defense extends not only to the defense of one’s
body and property, as under the English law, but also
extends to defending the body and property of any other
person.
  Under Section 97 even a stranger can defend the person
or property of another person and vice versa, whereas
under the English law there must be some kind of
relationship existing, such as father and son, husband and
wife, guardian and ward, master and servant etc., before
this right may be successfully exercised.

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 Right of private defense of trespasser
against the true owner.-
  A true owner has every right to dispossess or throw out
a trespasser, while the trespasser is in the act or process
of trespassing but has not accomplished his mission; but
this right is not available to the true owner if the
trespasser has been successful in accomplishing
possession and his success is known by the true owner.
  In such circumstances the law requires that the true
owner should dispossess the trespasser by taking
recourse to the remedies available under the law.

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Onus of establishing defense.-
  The onus of establishing plea of right of private defense is on
the accused though he is entitled to show that this right is
established or can be sustained on the prosecution evidence
itself. The right of private defense is purely preventive and not
punitive or retributive.
  To invoke the right of defense of person or property, the
accused must prove that he was placed in such a dangerous
situation that to protect himself he had to use reasonable
force.
  An accused person taking the plea of private defense is not
required to call evidence but can establish that plea by
reference to circumstances. He is also entitled to benefit of
doubt, if the court is in doubt whether or not the accused has
been able to substantiate completely to its satisfaction the plea
set up by law.

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 Sonelal v State, AIR
1981 SC 1379
The Supreme Court held
that right of private defense
begins when there is
reasonable apprehension
about injury to human body.

Mere intimidation will not

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Kanwar Singh v Delhi Administration, AIR
1965 SC 871
  The right of private defense of property cannot be
exercised against a person who entered the premises
lawfully, under the authority of law.
  Thus, a raiding party under the authority of the Delhi
Municipal Corporation Act, seized the stray cattle
belonging to the accused and the accused resisted the
seizure by use of force and inflicting injuries on the raiding
party, it was held that the right of private defense cannot
be available to the accused and he was convicted for the
offence of assault.

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Kishore Shambhunath Mishra v State of
Maharashtra, AIR 1989 SC 705
  In this case two notorious criminals of the locality armed
with lethal weapons entered a flat and forced the
occupants to part with money, an act which is an offence
of extortion under Section 388 IPC.
  The occupants of the flat resisted the invaders both of
whom were killed in the fight. It was difficult to say as to
who actually hit the deceased which caused their death.
  The Court held all the occupants in those circumstances
were entitled to the right of private defense and
therefore none of them could be convicted for an offence
under Section 302 read with Section 34, IPC.

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Right of private defense against the act of a
person of unsound mind, etc.-
  Section 98.- When an act, which would otherwise be a
certain offence, is not that offence, by reason of the
youth, the want of maturity of understanding, the
unsoundness of mind or the intoxication of the person
doing that act, or by reason of any misconception on the
part of that person, every person has the same right of
private defense against that act which he would have if
the act were that offence.

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Illustrations
  (a) Z, under the influence of madness, attempts to kill A, Z
is guilty of no offence. But A has the same right of private
defense which he would have if Z were sane.
  (b) A enters by night a house which he is legally entitled
to enter. Z, in good faith, taking A for a house-breaker,
attacks A. Here Z, by attacking A under this
misconception, commits no offence. But A has the same
right of private defense against Z, which he would have if
Z were not acting under that misconception.

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  Section 98 provides that what may not
be offences because of the age, physical Comment.-
or mental incapacity of the aggressor is
no bar to the exercise of private
defense. Hence, the right can be
exercised even against an infant, the
insane, an intoxicated person or one
suffering under misconception of facts.

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Contd..
  For instance, where a minor (Sec. 82) or a child who lacks
maturity of understanding (Sec. 83) or intoxicated person
(Sec. 84) or a person acting under the mistake or
misconception of facts (Ss. 76 & 79) etc. assaults or uses
force against a normal person, that person can retaliate
using reasonable force warranted in those circumstances
in the exercise of his right of private defense.
  Thus, the right of private defense can be used not only
against the normal persons but also against those who are
not normal and are exempted from criminal liability by
virtue of their peculiar categorization.

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