Section 100 of the Indian Penal Code is extracted as under:
"100. 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 which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. First clause of Section 100 applies to cases where there is reasonable apprehension of death while second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event he can go to the extent of causing the latter's death in the exercise of the right of private defence even though the latter may not have inflicted any blow or injury on him.
It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not?
In the case of Mohd. Ramzani v. State of Delhi (1980 Supp. SCC 215), a Division Bench of Supreme Court speaking through Sarkaria, J. made the following pertinent observations :
"...the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in `golden scales' the precise force needed to repel the danger. Even if he in the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it..."
SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE
The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus:
"..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly 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 Supreme court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.
Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book `Principles of Penal Laws' has observed "the right of defence is absolutely necessary". It is based on the cardinal principle that it is the duty of man to help himself.
Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case.
But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self- defence arises in a sudden quarrel in which both parties engage, or on account of the initial provocation given by the person who has to defend himself in the end against an assault endangering life.
The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.
The right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. 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." But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.
When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.
Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.
A legal philosopher Michael Gorr in his article "Private Defense" (published in the Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241) observed as under:
"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed "private defence", i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same".
The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is 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 sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
This court in number of cases have laid down that when a person is exercising his right of private defence, it is not possible to weigh the force with which the right is exercised. The principle is common to all civilized jurisprudence. In Robert B. Brown v. United States of America (1921) 256 US 335, it is observed that a person in fear of his life in not expected to modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly observed "detached reflection cannot be demanded in the presence of an uplifted knife".
According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right every reasonable allowance should be made for the bona fide defender. The courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack.
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.
To justify the exercise of the right of private defence, the below mentioned
factors are to be equally examined:
i) The entire incident;
ii) Injuries received by the accused;
iii) Imminence of threat to the safety of person;
iv) Injuries caused by the accused;
v) Circumstances whether the accused had time to recourse to public
BRIEF ENUMERATION OF IMPORTANT CASES:
The legal position which has been crystallized from a large number of cases is that law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion. This principle has been enunciated in Mahandi v. Emperor [(1930) 31 Criminal Law Journal 654 (Lahore); Alingal Kunhinayan & Another v. Emperor Indian Law Reports 28 Madras 454; Ranganadham Perayya, In re (1957) 1 Andhra Weekly Reports 181.
The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.
A Full Bench of the Orissa High Court in State of Orissa v. Rabindranath Dalai & Another 1973 Crl LJ 1686 (Orissa) (FB) summarized the legal position with respect to defence of person and property thus: "In a civilized society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence.
In Laxman Sahu v. State of Orissa 1986 (1) Supp SCC 555 this court observed that it is needless to point out in this connection that the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation.
In Raghavan Achari v. State of Kerala 1993 Supp. (1) SCC 719 this court observed that "No court expects the citizens not to defend themselves especially when they have already suffered grievous injuries".
In Jagtar Singh v. State of Punjab AIR 1993 SC 970 this court held that "the accused has taken a specific plea of right of self-defence and it is not necessary that he should prove it beyond all reasonable doubt. But if the circumstances warrant that he had a reasonable apprehension that death or grievous hurt was likely to be caused to him by the deceased or their companions, then if he had acted in the right of self- defence, he would be doing so lawfully."
In Puran Singh & Others v. The State of Punjab (1975) 4 SCC 518 this court observed that in the following circumstances right of private defence can be exercised :-
i. There is no sufficient time for recourse to the public authorities
ii. There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned.
iii. More harm than necessary should not have been caused.
In Bhagwan Swaroop v. State of Madhya Pradesh (1992) 2 SCC 406 this court had held as under:-
"It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun-shot at that point of time in defence of his father is justified."
In Kashmiri Lal & Others v. State of Punjab (1996) 10 SCC 471, this court held that "a person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat."
In James Martin v. State of Kerala (2004) 2 SCC 203, this court again reiterated the principle that the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.
In Gotipulla Venkatasiva Subbrayanam & Others v. The State of Andhra Pradesh & Another (1970) 1 SCC 235, this court held that "the right to private defence is a very valuable right and it has been recognized in all civilized and democratic societies within certain reasonable limits."
In Mahabir Choudhary v. State of Bihar (1996) 5 SCC 107 this court held that "the High Court erred in holding that the appellants had no right to private defence at any stage. However, this court upheld the judgment of the sessions court holding that since the appellants had right to private defence to protect their property, but in the circumstances of the case, the appellants had exceeded right to private defence. The court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing".
In Munshi Ram & Others v. Delhi Administration (1968) 2 SCR 455, this court observed that "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. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of materials available on record.
In State of Madhya Pradesh v. Ramesh (2005) 9 SCC 705, this court observed "every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities."
In Triloki Nath & Others v. State of U.P. (2005) 13 SCC 323 the court observed as under:-
"No decision relied upon by the Appellants lays down a law in absolute terms that in all situations injuries on the persons of the accused have to be explained. Each case depends upon the fact situation obtaining therein."
In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, the court observed that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this court, to adopt tests by detached objectivity which would be so natural in a court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances."
In Jai Dev v. State of Punjab AIR 1963 SC 612 the court held as under:-
"Right of private defence is not measured in golden scales"
"as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence."
In Buta Singh v. The State of Punjab (1991) 2 SCC 612, the court noted that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private- defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self- preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact."
Darshan Singh vs State Of Punjab & Anr on 15 January, 2010
(i) Self-preservation is the 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.
(ii) 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. (aggressors cannot claim right of private defence)
(iii) 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.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) 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.
(vii) 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.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) 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.
Vishvas Aba Kurane vs State Of Maharashtra on 19 January, 1978
well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for its own acts.
Supreme Court of India
Mohammad Khalil Chisti vs State Of Rajasthan & Ors on 12 December, 2012
in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act alone. (relied on raghubir singh v. state of rajasthan (2011) 12 SCC
In Krishnan vs. State of Tamil Nadu, (2006) 11 SCC 304, the following principles have been relied on:
“15. It is now well settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under Section 105 of the Evidence Act (read with Sections 96 to 106 of the Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under Section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap v. State of U.P, Salim Zia v. State of U.P. and Mohinder Pal Jolly v. State of Punjab.
In Sekar v. State this Court observed: (SCC p. 355) “A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case, the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.”
As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high- powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh v. State of M.P. (AIR 1971 SC 1857). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.
Janardan singh v. state of bihar (2009) 16 SCC 269 Even without formally taking the plea of right of private defence accused has a right to probabilise such defence on basis of prosecution evidence and if he succeeds in his effort , the court can give him such benefit.
In case of Emperor v. Abdul Hamim, policemen raided to the house of accused at night. The accused was sleeping and was awakened by some noise and rushed out of the room. The policemen fired at him and he fired back not knowing who they were. It was held that the accused was under a mistake of fact with regards to the identity of the officers. This gave him the right to private defence to save his body and property from trespassers.
In Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:
"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."
In State of Gujarat v. Sai Fatima & Anr. (Untwalia, J.,) speaking for the Court, observed as follows:
"In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follows:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise-of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all."
Bombay High Court
Machindra Babu Salve vs State Of Maharashtra on 26 July, 1996
Bombay High court referred the judgment of apex court and held as follows :-
Lakshmi Singh v. State of Bihar wherein the Apex Court has held that the inferences to which the failure of the prosecution to explain the injuries of the accused may give rise to are that the prosecution is suppressing the genesis of the incident; that the witnesses are lying on a material particular; and where there is a defence version of the incident explaining the injuries of the other side the same is rendered probable.When there is conflicting evidence of witnesses, the evidence of some being compatible with the inference that the accused may have acted in the exercise of the right of private defence and that of some pointing to the converse conclusion it is a basic principle of criminal jurisprudence that the evidence favouring the accused should be accepted by Courts.
It is true that there is no inflexible rule of law that the party which sustained smaller number of injuries is the aggressor and that which suffers a larger number of injuries is the victim of aggression. However, more than often, it is found, and the present case is one of those cases, that the number of injuries is a very significant circumstances for determining as to who is the aggressor. The rationale on which this principle is founded is that a party which goes to launch the assault would go well prepared and well armed in defence and, therefore naturally would inflict more injuries than which it receives from the other side in its self-defence. In the instant case we are implicitly satisfied that the circumstance that on the side of defence a larger number of injuries have been sustained as compared to the prosecution side shows that it was the prosecution side which was the aggressor.
Deo Narain v. State of UP (AIR 197 SC 473) Accused was in possession of a plot of land . Complainant party approached the disputed land with an intent to disturb possession . A clash followed , Accused received head injuries and killed a member of the complainant party by spear causing his death .
Supreme court held :
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 it he offence , though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is not the section. The right of private defence is available forprotection against-apprehended unlawful aggression and not for punishing ,the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals.If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right.
In case of Emperor v. Abdul Hamim, policemen raided to the house of accused at night. The accused was sleeping and was awakened by some noise and rushed out of the room. The policemen fired at him and he fired back not knowing who they were. It was held that the accused was under a mistake of fact with regards to the identity of the officers. This gave him the right to private defence to save his body and property from trespassers.
Kishan vs The State Of Madhya Pradesh on 19 November, 1973
The prosecution case was this: On May 4, 1968, Damrulal Went to the house of Bucha while he was supervising foundation-digging near his house. Damrulal warned the deceased to abstain from using bricks belonging to him Bucha replied that he was using his own bricks. Then there was an exchange of hot words between them. Thereafter Damrulal left the place angrily after giving a warning to Bucha that he would soon settle the score. The work came to a stop at about 9 a.m. . and the labourers left the place. While the deceased was taking his meal in the verandah of his house, Damrulal, Ganesh and the appellant along with their brother Har Charan arrived there. Ganesh exhorted his brother Har Charan to catch hold of Bucha and kill him. Bucha was dragged out of his house upto a nearly neem tree There he was given a beating by fists and kicks by the appellant and his three brothers Bucha contrived to extricate himself from their grip and picked up a Khutai lying nearby He gave three blows on the head of Har Charan with the Khutai. Har Charan fell down on the ground and became unconscious. Thereafter the appellant and his remaining two brothers, Ganesh and Damrulal, caught hold of Bucha. The appellant snatched the Khutai from the hand of Bucha and gave two or three blows on his head. Bucha fell down on the ground and became unconscious. Bucha died soon afterwards.
Supreme court held : The finding of the Courts below is that the appellant along with his three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled him out of his house upto the neem tree and there subjected him to punching and kicking. So they were aggressors. They took the law in their own hands. Bucha contrived to escape from their grip, caught hold of the khutai and struck three blows on the head of Har Cha-ran. Bucha' was then acting in exercise of the right of self-defence. Therefore, he was not an aggressor. The appellant could not claim to have beaten Bucha in exercise of the right of self-defence. ( There can be no right of private defence against a private defence and aggressors cannot claim benefit of the right of private defence)
Supreme Court of India
State Of U.P vs Ram Swarup & Anr on 2 May, 1974
At about 7 a.m. on that day Ganga Ram is alleged to have gone to the market to purchase a basket of melons. The deceased declined to sell it saying that it was already marked for another customer. Hot words followed during which the deceased, asserting his authority, said that he was the Thekedar of the market and his word was final. Offended by this show of authority, Ganga Ram is alleged to have left in a huff.
An hour later Ganga Ram went back to the market with his three sons, Ram Swarup, Somi and Subhash. Ganga Ram had a knife, Ram Swarup bad a gun and the two others carried lathis. They threw a challenge saying that they wanted to know whose authority prevailed in the market. They advanced aggressively to the gaddi of the deceased who, taken by surprise, attempted to rush in a neighbouring kothari. But that was much too late for before he could retreat, Ram Swarup shot him dead at point-blank range
Supreme court held : The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if be so acts there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a presence for killing. The conclusion of the High Court in regard to Ram Swarup being plainly unsupportable and leading as it does to a manifest failure of justice, we set aside the order acquitting Ram Swarup and restore that of the Sessions Court convicting him under section 302 of the Penal. Code.
Supreme Court of India
Wassan Singh vs The State Of Punjab on 28 November, 1995
The prosecution story briefly is to the effect that accused Charan Singh is the sister's son of Piara Singh accused and the appellant who belongs to village Baghewala, is their partyman. That prosecution witnesses, Bachan Singh and Hazara Singh, are the real brothers and Mst. Bholan deceased was the wife of Hazara Singh and Jagir Singh is the nephew of Bachan Singh, Piara Singh is the cousin of Hazara Singh and Jagir Singh is the nephew of Hazara Singh. That PW Bachan Singh was to celebrate Lohri festival in connection with the birth of his grand-child. He went to Jagir Singh at village Akku Masteke on 10th January 1981 to request him (Jagir Singh) to join the celebration of Lohri festival at his house. On 11th January 1981 at about 9.00 a.m. Jagir Singh came to the house of Bachan Singh and remained there upto 6.00 p.m. in connection with the distribution of sweets on the occasion of the birth of his (Bachan Singh's) grand- child. At about 6.00 p.m. Hazara Singh, his wife Mst. Bholan, his brother Bachan Singh came out of the house along with Jagir Singh to see the letter off. They were standing in front of the gate of his (Hazara Singh's) house. At that time electric light which was fitted at his house, was illuminating in which a human being could be identified. Jagir Singh was going to connect his tractor with his trolley. Meanwhile, Piara Singh accused armed with his D.B.B.L. gun, Wassan Singh accused armed with a single barrelled gun and Charan Singh accused armed with `grandasa' came to the house of Hazara Singh and Bachan Singh raising `lalkaras'. Charan Singh accused raised a `lalkara' that he and his companion co-accused were going to teach Hazara Singh and others a lesson for parking the tractor trolley in the lane. Piara Singh accused opened the attack by firing from his D.B.B.L. gun towards Hazara Singh. However, the fire missed the target as he (Hazara Singh) had knelt down to save himself and the fire passed over his head. Thereafter appellant fired from his single barrelled gun and the shot hit Mst. Bholan deceased near he pelvic region. On receipt of this injury, she fell down on the ground. Thereafter Charan Singh accused dealt a `gandasa' blow on the head of Bachan Singh from its sharp side. Meanwhile Piara Singh accused dealt blow with the butt of his gun on the left hand of Jagir Singh and another blow from the said butt on his right ear. Then Charan Singh accused dealt a `gandasa' blow on the head of Bachan Singh from its reverse side. Thereupon Hazara Singh, Bachan Singh and Jagir Singh raised `raula' and on this, the accused decamped with their weapons. Before that, Bachan Singh and Hazara Singh also caused injuries on the person of appellant in their self- defence. Thereafter the PWs arranged a car in which Bholan was placed. Bachan Singh and Hazara Singh accompanied her to Civil Hospital, Forezepore, at a distance of 14/15 kilometers. The car left village Nizamwala at about 6.45 p.m. but Bholan died on the way at a distance of 6/7 miles near village Sodhiwala on their way to the Hospital.
Supreme Court held :that the appellant had a right of private defence of body which extended to even causing death and in exercise of that right if he fired one gun shot which unfortunately killed an innocent person that is, Smt. Bholan, it cannot be said that he was guilty of an offence even under Section 304 Part of the IPC on the ground that he had exceeded his right of private defence. Consequently the conviction of the appellant under Section 304 part I, IPC as rendered by the High Court is quashed and set aside.
Supreme Court of India
Mahabir Choudhary Etc vs State Of Bihar on 1 May, 1996
Prosecution case, in short, is thus: this three deceased visited. Kusi Village on the eve of the occurrence and cut open a bandh (embankment ) which blocked the water flowing further north. This act of the deceased was questioned by some of the appellants. But their protestations were not heeded to by the deceased. On the morning of 15.10.1974, situation further deteriorated with exchange of words between the two factions when those hailing from. Malpura forcefully resisted the attempt of the appellants to restore the bandh. All the appellants gathered up with guns, lathis, etc. The four Appellants, Who were convicted by the trial court used guns to fire down one or the other of the three deceased and consequently the deceased died of gun shot injuries. The remaining persons who came from Malpura Village retreated and fled from, the Scene.
Learned Sessions Judge found that the prosecution succeeded in establishing that the four convicted persons fired gun at the deceased. However, learned Sessions Judge took the view that appellants had right of private defence of property as deceased committed mischief by cutting open the bandh to block the water flow. But the trial Court further found that -the four convicted persons who used firearms had exceeded their right of private defence and hence they were convicted only of the offence under Section 304 Part I of l PC.
The High Court, in reversal of the above findings, concluded that all the 13 accused had formed themselves into an unlawful assembly with the common object of murdering the three deceased and that none hat the right of private defence at the relevant time.
Supreme Court held : No doubt Section 103 I.PC, which deals with right of private defence as against an act which might be mischief or theft or criminal trespass, conditions that there should be reasonable apprehension that death or grievous hurt would otherwise be the consequence. But that provision deals with the farthest extent of the right of private defence as against the above three categories of wrong against the property. But a man pitted against such wrongs or even against attempts thereof need not wait for exercising right of private defence untill the apprehension of death of grievous hurt is burgeoned in his mind Penal Code envisages two measures of right private defence. One is the first degree which shall not reach upto causing of death of the wrong doer. The other is the full measure which may go upto causing death. Both measures are, however, subjected to the restrictions enumerated in Section 99. Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft mischief or criminal trespass. But Section 103 recognises extension of the said right upto the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure.
The emerging position is, you have the first degree of right of private defence even if the wrong committed or attempted to be committed against you is theft or mischief or criminal trespass simplicitor. This right of private defence cannot be used to kill the wrong doer unless you have reasonable cause to fear that Otherwise death or grievous hurt might ensue in which case you have the full measure of right of private defence.
When the acts of Malpura People amounted to mischief, appellants had aright of private defence the thwart to same. In the course of exercise of such right appellants who gunned down the mischief-makers have obviously acted far in excess of the right of private defence. Nonetheless the first degree of right of private defence cannot be denied to them.
The High Court was in error in holding that appellants had no right of private defence at any stage. Trial Court was correct in its approach regarding that aspect of the matter. we therefore, allow these appeals and set aside the Judgment of the High Court. The conviction and sentence passed by the Session Court will stand.
Supreme Court of India
James Martin vs State Of Kerala on 16 December, 2003
The matrix of the litigation related to a Bharat Bandh on 15.3.1998 sponsored by some political parties. Prosecution version as unfolded during trial is as follows:
The incident involved in this case took place at about 2.30 p.m. on 15.3.1988 when five young men, the two deceased in this case, namely, Mohan and Basheer (hereinafter referred to as 'deceased' by their respective name), and PW-1, PW-2 and PW-4, who were activists of the bundh, as followers of the political parties which organized that bundh on that day, got into the flour mill of the A-2 through the unlocked gate leading access to that mill situate in a property comprising the residential building, a bread factory and other structures belonging to that accused. This group of five men on passing beside the mill of A-2 while they were perambulating the streets of Cheranelloor to have a first hand information as to the observance of the bundh on coming to know of the operation of the flour mill by A-2 proceeded to that place and made demands to PW-15, the employee of A-2 who was operating the mill to close down. An altercation took place between them and on hearing the commotion the accused, A-1 and A-2 who were inside their residential building, situate to the west of that mill, rushed to the place and directed the bundh activists to go out of the mill. As the activists of the bundh persisted in their demands for closing the mill, according to the prosecution, A-2 got out of the mill and on the instruction given by A-2, A-1 locked the gate of the compound from inside. Then both of them rushed back to the house with A-2 directing A-1 to take out the gun and shoot down the bundh activists by declaring that all of them should be finished off. On getting into the house and after closing the outer door of that building, both the accused rushed to the southern room of that building which faced the gate with a window opening to that side. The 1st accused on the instigation of the 2nd accused, his father, and having that accused beside him, fired at the bundh activists, who by that time had approached near the locked gate, by using an S.B.B.L. Gun through the window. The first shot fired from the gun hit against one of the bundh activists, who had got into the compound, namely Basheer, and he fell down beside the gate. The other four bundh activists on requesting the 1st accused not to open fire rushed towards Basheer and, according to the prosecution, the first accused fired again with the gun indiscriminately causing injuries to all of them. Even when the first shot was fired from the gun passersby in the road situate in front of that property also sustained injuries. When the firing continued as stated above some of the residents of the area who were standing beside the road also received gun shot injuries. On hearing the gun shots people of the locality rushed to the scene of occurrence and some of them by scaling over the locked gate broke opened the lock and removed the injured to the road, from where they were rushed to the hospital in a tempo van along with the other injured who had also sustained gun shot injuries while they were standing beside the road. One among the injured, namely, Mohanan breathed his last while he was transported in the tempo to the hospital and another, namely, Basheer, succumbed to his injuries after being admitted at City Hospital, Ernakulam. All the other injured were admitted in that hospital to provide them treatment for the injuries sustained. After the removal of the injured to the hospital in the tempo as aforesaid a violent mob which collected at the scene of occurrence set fire to the residential building, flour mill, bread factory, household articles, cycles, a tempo and scooter, parked in front of the residential building of the accused, infuriated by the heinous act of the accused in firing at the bundh activists and other innocent people as aforesaid. Soon after the firing both the accused and PW-15 escaped from the scene of occurrence and took shelter in a nearby house.
The accused on the other hand, took the stand that the firing resulting in the death of two bundh activists and sustaining of grievous injuries to several others occurred when their house and other buildings, situated in a common compound bounded with well protected boundary walls, and movable properties kept therein were set on fire by an angry mob of bundh activists when the accused failed to heed their unlawful demand to close down the flour mill which was operated on that day.
Supreme Court held : Where 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 for either warding off the attack or for forestalling 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 stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.
The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non- explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.
The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defense, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.
The background facts as noted by the trial Court and the High Court clearly show that the threat to life and property of the accused was not only imminent but did not cease, and it continued unabated. Not only there were acts of vandalism, but also destruction of property. The High Court noticed that explosive substances were used to destroy the properties of the accused, but did not specifically answer the question as to whether destruction was prior or subsequent to the shooting by the accused. The High Court did not find the prosecution evidence sufficient to decide the question. In such an event the evidence of PW- 15 who was also a victim assumes importance. The High Court without indicating any acceptable reason held on mere assumptions that his sympathy lies with the accused. The conclusion was unwarranted, because the testimony was acted upon by the Courts below as a truthful version of the incident. The trial Court found that an unruly situation prevailed in the compound of the accused as a result of the violence perpetrated by the bandh activists who got into the place by scaling over the locked gate and that their entry was unlawful too, besides intimidating and assaulting PW-15 and making him flee without shutting down the machines. The circumstances were also found to have necessitated a right of private defence. Even the High Court, candidly found that tense situation was caused by the deceased and his friends, that PW-15 suffered violence and obviously there was the threat of more violence to the person and properties, that the events taking place generated a sort of frenzy and excitement rendering the situation explosive and beyond compromise. Despite all these to expect the accused to remain calm or to observe greater restraint in the teeth of the further facts found that the accused had only PW-15 who was already manhandled though they were outnumbered by their opponents (the bandh activists) and whose attitude was anything but peaceful would be not only too much to be desired but being unreasonably harsh and uncharitable, merely carried away only by considerations of sympathy for the lives lost, on taking a final account of what happened ultimately after everything was over. In the circumstances, the inevitable conclusion is that the acts done by the accused were in the reasonable limits of exercise of his right of private defence and he was entitled to the protection afforded in law under Section 96 IPC.
Supreme Court of India
Amjad Khan vs The State on 20 March, 1952
A communal' riot broke out at Katni on the 5th of March, 1950, between some Sindhi refugees resident in the town and the local Muslims. The trouble started in the locality known as Zanda Bazar or Zanda Chowk. Police Constable Bharat Singh, P.W. 17, who made the First Information Re- port, said that most of the shopkeepers in Zanda Bazar are Sindhis. He stated that when he was told that trouble had broken out there he proceeded to the spot and found that the goods in the Muslim shops in that locality were scattered. It is also in evidence that some Muslims lost their lives. From this place he went on to Subash Chowk, the locality in which the appellant's shop is situate. It lies to the West of Zanda Bazar. He states that when he got there he found a "crowd" there but not a "mob". He admitted that he had said in the First Information Report that a gun was fired a minute after he had reached the spot and he said that what he had stated in the First Information Report was true. It is not disputed that this shot was fired by the appellant, as also a second shot, and that that caused the death of one man (a Sindhi) and injured three others, also Sindhis.
The map, Ex. D-4, shows that the shops of the appellant and his brother Zahid Khan run into each other and form two sides of a rectangle, the appellant's house facing north and the brother's house facing east. Each shop opens out on to a road.
It is proved that when the rioting broke out in the Zanda Chowk the alarm spread to the appellant's locality and the people there, including the appellant, started closing their shops.
The appellant's version is that the mob approached his locality and broke into the portion of the building facing east in which his brother's shop is situate and looted it. The High Court holds that this is proved and holds further that this preceded the firing by the appellant. There is a hole in the wall between the two portions of the building in which these two shops are situate and the High Court holds that Zahid's family got into the appellant's portion of the building through this hole and took refuge there. The High Court also holds that the appellant's mother then told the appellant that the crowd had burst into his (appellant's) shop and was looting it. The learned Judges state that what he said was not quite true because all that the crowd did was to beat the door of the appellant's shop with lathis as they were passing but had not broken into the shop. But they accept the fact that the crowd was beating the doors of the appellant's shop with their lathis.
Supreme Court held :" It was enough that the mob had actually broken into another part of the house and looted it, that the woman and children of his family fled to the appellant for protection in terror of their lives and that the mob was actually beating at his own doors with their lathis and that Muslim shops had already been looted and Muslims killed in the adjoining locality. It was impossible for him to know whether his shop would or would not suffer the same fate if he waited, and on the findings it was reasonable for him to apprehend death or grievous hurt to himself and his family once they broke in, for he would then have had the right to protest and indeed would have been bound to do what he could to protect his family. The threat to break in was implicit in the conduct of the mob and with it the threat to kill or cause grievous hurt to the inmates; indeed the High Court Judges themselves hold that his own shop was menaced. The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death. These things cannot be weighed in too fine a set of scales or, as some learned Judges have expressed it, in golden scales. We have confined our attention to the right of private defence of the person though in this case the question about the defence of property happens to be bound up with it. The appeal is allowed".
Supreme Court of India
State Of U.P vs Niyamat & Ors on 14 April, 1987
Where accused was fired at by the police to dispel his party from attempting to rescue his friend from illegal police detention and an informer intervened to prevent the accused from snatching the police gun and received fatal injuries in consequence . Court held that accused persons were entitled to right of private defence.
Supreme Court of India
State Of Gujarat vs Bai Fatima & Anr on 19 March, 1975
Respondents Nos. 1 and 2 were mother and daughter. The deceased was the brother-in-law of respondent No. 1. For some days before the date of the Occurrence, the relations
between the two families were none too cordial. On the day of the occurrence there was a scuffle between the respondents and the deceased. A little later, when the
deceased was sitting in the house of his father-in-law in the opposite row of houses, respondent No. 1 was alleged to have gone to the deceased with a stick to beat him. Some
neighbours intervened and tried to pacify both the parties. When the deceased was going out, respondent No. 1 put her leg across the legs of the deceased, as a result of which he
fell down on his back. Respondent No. 2 immediately caught hold of both the hands of the deceased and respondent No. 1 is stated to have squeezed his testicles and pulled them.
Eventually the deceased succumbed to the injury. After the incident respondent No. 1 lodged a complaint before the police stating that the deceased,his wife and his mother-in-law caught hold of her and gave her blows and kicks with a stick as a result of Which she fell down.
Holding that the prosecution case was proved beyond reasonable doubt, the Sessions Judge convicted respondent No. 1 under S. 304, Part-I I.P.C. Respondent No. 2 was convicted under s. 323 read with s. 144, I.P.C. On appeal, the High Court, even after believing the main part of the occurrence, acquitted respondent No. 1 of the charges levelled against her and consequently respondent No. 2 also on the ground that she must have done so in exercise of her right of private defence inasmuch as she must have squeezed the testicles of the deceased when be was showering blows with a stick on her in order to protect herself.
SUPREME COURT HELD :The trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents and the occurrence in question forming part of the second incident. The High Court differed from the view of the trial judge on flimsy and unsustainable grounds.
(2) There was absolutely no basis or material on the record to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence. Even going to the maximum extent in favour of the respondents that respondent No. 1 got the blows with a stick at the hands of the deceased and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death.The counterattack could in no sense be an attack in exercise of the right of private defence.
(3) Neither in her complaint before the police nor in the statement under s.313 Cr. P.C. Was there a whisper by respondent No. 1 of her having squeezed the testicles and private parts of the deceased in exercise of her right of private defence. Not only was the plea of private defence not taken by the respondents in their statements under Cr. P.C. but no basis for the plea was laid in the cross-examination of the prosecution witnesses or by adducing any defence evidence. The burden of establishing that plea was not discharged in any way by the respondents even applying the test of preponderance of probabilities in favour of that plea. There is absolutely no material on the record to lead to any such conclusion.
Supreme Court of India
Puran Singh & Ors vs State Of Punjab on 25 April, 1975
In a dispute over land between the party of the appellants and the complainant, the appellants alleged that they had redeemed the mortgage in respect of the land and thereafter the mortgagee had himself delivered possession of the land and that they had grown wheat crop in it. The complainant, to whom the mortgagee sold his mortgage rights, tried to take its possession forcibly.It was alleged that on the day of the occurrence the complainant and his party, armed with deadly weapons, entered the disputed land and tried to destroy the wheat crop. In the scuffle that ensued two persons of the complainant's party died and some persons on both sides were injured. On the question of possession of the land the High Court gave a finding in favour of the appellants but on its own interpretation of the decision of this Court in Munshi Ram and Others v. Delhi Administration held that the appellants who were not in settled possession of the land, were rank trespassers and secondly that, instead of indulging in a free fight with the opposite party,the appellants could have taken recourse to the public authorities, Since the appellants had exceeded the limitations provided in s. 99 to 102 I.P.C. they could not claim any right of private defence.
Allowing the appeal,
Supreme Court held :-
The appellants were protected by the right of private defence of their property and person and the prosecution case against the appellants, which has not been proved beyond reasonable doubt must fail. It is not the law that a person when called upon to face in assault must run away to the police station and not protect himself or when his property has been the subject matter of trespass and mischief he should allow the aggressor to take possession of
the property while he should run to the public authorities. Where there is an attribute of invasion or aggression on the property by a person who has no right to possession then there is obviously no room to have recourse to the public authorities and the accused has an undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also and it is not necessary that death or grievous hurt should actually be caused before the right could be
exercised. A mere reasonable apprehension is enough to put the right of private defence into operation.
In the present case it could not be said that the appellants had exceeded the right of private defence. The appellants were undoubtedly in possession of the laid and had grown
wheat crop and the prosecution party had tried to destroy the wheat crop. The appellants were entitled to resist the invasion of their right by the prosecution party. Again it cannot be said that the appellants had in any event exceeded their right of private defence. As the prosecution bad deliberately suppressed the very material part of the origin of the occurrence it is not known how the occurrence started. Secondly when two persons on the side of the
accused were injured by gun fire it was not possible for them to weigh their blows in golden scales in order to assault the prosecution party. After two members of their party had received gun shot injuries the appellants would have undoubtedly it reasonable, apprehension that either death or grievous hurt could be caused to the members of their party or one of them. This being the position they were fully justified in causing the death of the deceased
Persons in exercise of their right of private defence of person. Such an apprehension could not be said to be hypersensitive or based on no ground and it will be idle to content that the appellants could have waited until one of their party members would have die or received serious injuries before acting on the spur of moment, nor could one expect a person who is attacked by an aggressor to modulate his blows in accordance with the injuries he received.
Supreme Court of India
Dattu Genu Gaikwad vs The State Of Maharashtra on 23 November, 1973
Nagnath asked the appellant a rustic question inquiring whether the appellant had kept buffaloes for drinking milk and this was enough excuse for the appellant to beat Nagnath to death. The true reason for the assault seems to be that a month or so before the incident Nagnath had attempted to outrage the modesty of the appellant's wife, Hirakani. The interval between that incident and the assault on Nagnath is too long to afford to the appellant the benefit of the plea of grave and sudden provocation. There is not one circumstance which even charitably can be construed to confer the right of self-defence. Appellant was accordingly held liable.
Supreme Court of India
Vishwanath vs The State Of Uttar Pradesh on 3 September, 1959
The facts of the case, as found by the High Court, are no longer in dispute and the question that is raised in this appeal is whether the appellant had exceeded the right of private defence of person. The relevant facts for our purposes are these. Gopal deceased was married to the sister of the appellant. The appellant and his father Badri were living in a railway quarter at Gorakhpur. Gopal's sister was married to one Banarsi, who was also living in another railway quarter nearby. Gopal had been living for some time with his father-in-law. They did not, however, pull on well together and Gopal shifted to the house of Banarsi. Badri persuaded Gopal to come back to his house but the relations remained strained and eventually Gopal shifted again to the quarter of Banarsi about 15 days before the present occurrence which took place on June 11, 1953, at about 10 p.m. Gopal's wife had continued to live with her father as she was unwilling to go with Gopal. Her father Badri and her brother Vishwanath appellant sided with her and refused to let her go with Gopal. Gopal also suspected that she had been carrying on with one Moti who used to visit Badri's quarter. Consequently, Gopal was keen to take away his wife, the more so as he had got a job in the local department some months before and wanted to lead an independent life. On June 11, there was some quarrel between the appellant and Gopal about the girl; but nothing untoward happened then and the appellant went back to his quarter and Gopal went away to Bansari's quarter. Gopal asked Banarsi's sons to help him in bringing back his wife. Banarsi also arrived and then all four of them went to Badri's quarter to bring back the girl. On reaching the place, Banarsi and his two sons stood outside while Gopal went in. In the meantime, Badri came out and was asked by Banarsi to let the girl go with her husband. Badri was not agreeable to it and asked Banarsi not to interfere in other people's affairs. While Badri and Banarsi were talking, Gopal came out of the quarter dragging his reluctant wife behind him. The girl caught hold of the door as she was being taken out and a tug-of-war followed between her and Gopal. -The appellant was also there and shouted to his father that Gopal was adamant. Badri, thereupon replied that if Gopal was adamant he should be beaten (tomaro). On this the appellant took out a knife from his pocket and stabbed Gopal once. The knife penetrated into the heart and Gopal fell down senseless. Steps were taken to revive Gopal but without success. Thereupon, Gopal was taken to the hospital by Badri and the appellant and Banarsi and his sons and some others, but Gopal died by the time they reached the hospital.
The appellant gave only one blow with a knife which he happened to have in his pocket. It is unfortunate that the blow landed right into the heart and therefore Gopal died. But considering that the appellant had given only one below with an ordinary knife which, if it had been a little this way or that, could not have been fatal, it cannot be said that he inflicted more harm than was necessary for the purpose of defence. As has been pointed out in Amjad Khan v. The State ), " these things cannot be weighed in too fine a set of scales or in golden scale"'. We, therefore, allow the appeal and hold that the appellant had the right of private defence of person under the fifth clause of s. 100 and did not cause more harm than was necessary and acquit him.It would in our opinion be not right to expect from a person who is being abducted by force to pause and consider whether the abductor has further intention as provided in one of the sections of the Penal Code quoted above, before he takes steps to defend himself, even to the extent of causing death of the person abducting. The framers of the Code knew that abduction by itself was not an offence unless there was some further intention coupled with it. Even so in the fifth clause of s. 100 the word " abducting " has been used without any further qualification to the effect that the abducting must be of the kind mentioned in s. 364 onwards. We are therefore of opinion that the view taken in Ram Saiya's case (1) is not correct and the fifth clause must be given full effect according to its plain meaning. Therefore, when the appellant's sister was being abducted, even though by her husband, and there was an assault on her and she was being compelled by force to go away from her father's place, the appellant would have the right of private defence of the body of his sister against an assault with the intention of abducting her by force and that right would extend to the causing of death.
Puran Singh & Ors vs State Of Punjab on 25 April, 1975
"It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force."
the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
(i)that the trespasser must be in actual physical possession of property over a sufficiently long period;
(ii)that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case ;
(iii)the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and'
(iv)that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence.
In the case of Horam and others v. Rex( I.L.R. ((1955) 14yd. 406) which was relied upon by this Court in Munshi Ram's case (supra) a Division Bench of the Allahabad High Court observed as follows:
"Where a trespasser enters upon the land of another, the person in whom the right of possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence. His action would be covered by the principle of self- defence embodied in Ss. 96 to 105, Penal Code. If, on the other hand, the trespasser had already accomplished or completed his pos- session and the person with the right of possession has acquiesced in this accomplishment, it is not open to the latter to avail himself of the doctrine of self- defence and by inflicting injuries on the trespasser to reacquire possession of his land."
It may be noted that in this case the accused had remained in possession for ten days and had sown the field and this was held to be sufficient possession to enable the trespasser to resist the entry of the true owner,
the case of Hazara Singh and others v. The State(A.I.R. (1959) Punjab 570. ) it was held that the accused was protected by the right of private defence having cultivated and sown Bajra in the field. In this connection, Chopra, J., observed as follows:
"When once Resham Singh had taken possession of, cultivated and sown bajra in the field and had remained in possession of it for a couple of months, Hazara Singh even though he was the owner was not entitled to take the law into his own hands and use force in ousting the trespasser. He had ample time to have recourse to the protection of public authorities. He was himself liable for committing criminal trespass and mischief by taking forcible possession of the land and uprooting the crop and would. not therefore be entitled to the right of private defence of property."
Supreme Court of India
Madan & Ors vs State Of M.P on 11 July, 2008
Where accused till a certain stage acted in defence of their property but exceeded it in breaking into the room of their victim , striking him with a lathi blow and also his wife and daughter who were also there in the room , the victim subsequently dying their conviction was shifted from under s.302 to under 304 part I.
Supreme Court of India
Jassa Singh & Ors vs State Of Haryana on 8 January, 2002
If criminal trespass is only in respect of open land , then right of private defence cannot extend to causing of death as Section 103 envisages a house breaking by night or house trespass under such circumstances to cause reasonable apprehension of death or grevious hurt.
In State of Rajasthan vs. Ram Bharosi AIR 1998 SC 3016, it was observed by this Court as under :
"Though there would be right of private defence under Section 97 IPC when offence of criminal trespass or attempting criminal trespass is committed, under Section 103 IPC it is only in the case of house trespass that right of private defence can extend to causing death.
In Rajinder & Ors. vs. State of Haryana (1995) 5 SCC 187, this Court held in paragraphs 21 and 22 as under :
"It is evident from the above provision that unauthorized entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above principles, it cannot be said that the complainant party committed the offence of "criminal trespass" for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to withdraw thereupon and not with any intention to commit any offence or insult, intimidate or annoy them. Indeed there is not an iota of material on record to infer any such intention. That necessarily means that the accused party had no right of private defence to property entitling them to launch the murderous attack. On the contrary, such murderous attack not only gave the complainant party the right to strike back in self-defence but disentitled the accused to even claim the right of private defence."