Law and You > Criminal Laws > Indian Penal Code > Things Done in Private Defence (S. 96 IPC)
Section 97 of the IPC discusses the right of private defence of body and property. S.97 allows protecting his body or another person’s body, against any offence in which there is a danger to life and protecting his or another person’s movable or immovable property, against any offence like theft, robbery, mischief or criminal trespass or an attempt to commit theft, robbery, mischief or criminal trespass.
A. 97: Right of private defence of body and property:
Every person has a right, subject to the restrictions contained in section 99, to defend-
First.- 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.
The first clause of the section provides for the defence of the body against any offence affecting the human body. The second clause provides a defence of property against an act which amounts to commission of certain offences.
Under S. 97 the Indian Penal code gives the right to protect his body or anybody’s else body and his property or anybody’s else property. The English law gives the right to protect his body or anybody’s else body and body or property of a person having kindred or community interest like parent-child, husband-wife, landlord-tenant, etc.
Thus S. 97 the Indian Penal code gives the right to protect the body and property of another person also.
A father, in order to protect the life of daughter from the attack of a thief, shoots him in his leg. In this case, the father will not be liable as he was protecting the life of his daughter.
Who is the Agressor?
The number of injuries is used to decide the aggressor but it is not the criteria. The rationale on which this principle is founded that a party which goes to launch the assault would go well prepared and well armed in defence and would cause more injuries than it receives from the other side. This principle was held in case Machindra Baba Salve v. State of Maharashtra, 1997 CrLJ 486 (Bom). The aggressor has no right to the private defence.
Case Laws:
In Crown v. Rose (1884) 15 Cox 540, case the defendant shot dead his father while his father was launching a murderous attack on the defendant’s mother, was acquitted of murder on the grounds of self-defence.
In Beckford v Crown [1988] AC 130, the Court held that a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.
In Crown v Hussey (1924) 18 Cr App R 160, case the defendant was barricaded in his room while his landlady and some accomplices were trying to break down his door to evict him unlawfully. The defendant fired a gun through the door and wounded one of them. He was acquitted of the wounding charge on the grounds of self-defence.
In Amzad Khan v. Hazi Mohammad Khan, AIR 1952 SC 165, case, a mob killed or caused grievous hurts to persons in a locality. The mob was striking the door to break it open. To save the lives of inmates, the owner fired two shots for straying away the frenzied mob. The court held that it was not use of excessive force.
In Rajinder v. State of Haryana, 1995 SCC (Cri) 852 case the court held that the right of private defence is available only against an offence defined by the IPC.
Biren Singh v. State of Bihar AIR 1975 SC 87 case the two accused had simple injuries ran to their house and brought swords. During the fight with swords, one of the accused died of severe injuries to vital parts of the body. The court held that in such case the benefit of the right of private defence cannot be considered.
In Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660 case, the workers called for a strike. They were demanding enhancement of wages. They entered the office of the owner of the factory and were shouting slogans. They destroyed goods and furniture of the office. The accused (Appellant) came out of his room and fired a shot from his revolver, resulting in the death of one worker. The Supreme Court held that the accused caused more harm than was necessary, and thus he has not entitled the defence of the right of private defence. At the same time, there was sufficient time to call public authorities for defence.
In Krishna vs. State of Madras, 1968 (2) STC 253 case, the accused had attacked the Sales Tax Officer who came to his shop for an inspection. The officer attempted to seize the account books of the accused u/sec. 41 (3) of the Madras Sales Tax Act, 1951. He was abducted and assaulted by the accused. The accused was held to be guilty and was not entitled the protection of private defence.
In Dwarka Prasad v. State of U. P. (1993 SCC (Cri) 882 case the Court held that in case of a free fight there is no right of private defence to either party.
In Deo Narain v. State of U.P. (AIR 1973 SC 473) case, the Court observed that a person could only claim the right to use force after he has sustained a serious injury by an aggressive wrongful assault, is a complete misunderstanding. In this case, the accused used spear though other party had aimed lathi blow on his head. The Court held that the use of a weapon with him is justifiable as the blow of lathi on the head could prove dangerous. It is not excess of force.