Law and You > Criminal Laws > Indian Penal Code > Things Done in Private Defence (S. 96 IPC)

Private defence is a Right inherent in human beings, which is the duty to help oneself. It is an excuse for any crime against the person or property. It also applies to the defence of a stranger and may be used not only against culpable but against innocent aggressors. The defence is allowed only when it is immediately necessary-against threatened violence.

Need of Right of Private Defence:

Actually, the state has the duty to protect its citizens and their property from harm. However, in some cases, circumstances may arise when the aid of state machinery is not available and there is imminent danger or apprehension to a person or his property. In such situations, a person is allowed to use force to ward off the immediate danger to his or someone else’s person or property. This right of the person is called the right of private defence. The people are endowed with this right so that they can defend themselves and their property and not hesitate due to fear of prosecution.

The whole concept of the right of private defence or self-defence rests on the following propositions:

1. Every person is entitled to protect himself and others against unlawful attacks upon their person and property.
2. Where its aid can be obtained, it must be resorted to.
3. Where its aid cannot be obtained, the individual may do everything that is necessary to protect himself.
4. But the violence used must be in proposition to the injury to be averted, and must not be employed for the gratification of vindictive or malicious feelings.

The right of private defence is not available against public servants acting in the exercise of their lawful powers. A person is allowed to use only reasonable force; a force that is proportionate to the impending danger.

Chapter IV, Sections 96 through 106 of the IPC defines the characteristics and scope of private defence in various situations. The provisions contained in these sections give authority to a person 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 so doing he is not answerable in law for his deeds. Such a right is not only restraining influence on corrupt characters but also encourages manly spirit in a law-abiding citizen

If we make a comparative analysis, apparently we can say Indian law on the subject of private defence is much wider in scope than the Anglo-American legal system. In India, the right of private defence is available not only for the protection of the life and property of a person himself but also of the person and property of others. But in English Law, one can exercise this right only in defence of himself and his immediate kindred.

Section 96: Things done in private defence:

Nothing is an offence which is done in the exercise of the right of private defence.

Illustration:

If A is attacked by a mob who attempts to murder him. He can only exercise his right of private defence by firing on the mob. He cannot fire without risk of harming young children who are mingled with the mob. Under S. 96 A has not committed any offence by firing, even if he harms the children.

Section 96 gives statutory recognition to the right of private defence, stating that nothing is an offence which is done in exercise of the right of private defence. But this right is not absolute. It is subject to the limitations contained in sections 99 to 105. The right under section 96 is basically preventive in nature and not punitive. It is exercised only to repel unlawful
aggression and not to punish the aggressor for the offence committed by him. The question whether the exercise of the right of private defence is preventive or not is always a question of fact.

Characteristics of Right of Private Defence:

• It is available against the aggressor only and against the offence described under the IPC.
• The right is available only when the defender entertains reasonable apprehension i.e when there is a real and immediate threat.
• If life is threatened by grave danger, then the person in danger need not wait for State aid, unless aid is available.
• The right of private defence cannot be claimed for a perceived future attack.
• Right is protective or preventive and not punitive
• The right is not for self-gratification
• Use of right should not be deliberate or for retaliation of past injury.
• The right commences as soon as a reasonable apprehension of danger arises and continues till the apprehension continues
• The protective measures must be proportionate to injury or threat.
• The right ends with the necessity for it.
• The aggressor cannot claim the right to self-defence.
• No private defence against private.
• Even if a private defence is not claimed, the Court may consider the plea based on material on record.
• The right of private defence is not available against public servants acting in exercising of their lawful powers.

Tests to Check Legitimacy of Right of Private Defence:

• The legitimacy of the claim of the private defence depends on the facts and circumstances of the case. There are three tests for ascertaining reasonable apprehension; they are the objective, subjective and expanded objective tests.
• The objective test emphasizes as to how in a similar circumstance an ordinary, reasonable, standard and average person will respond,
• The subjective test examines the mental state based on individual attitude.
• The Expanded test is a combination of the above two tests, bases its inquiry to determine whether or not the individual acted as a reasonable person.

Case Laws:

In Munshi Ram v. Delhi Administration, AIR 1968 SC 702 case, the property acquired by the Central Government was auctioned and sold to Ashwani Kumar Dutt. When buyer’s men went to the land to level it with tractors, they were attacked by the appellant and others armed with spears and lathis and caused injuries to them. In Court, the appellant took the plea of right of private defence. The Court observed that it is well-settled that even if an accused does not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record. Court also brought to notice that at the time of delivery, the land was in possession of Jamuna and crops are grown by Jamuna, were there in a portion of the land. The Court further said that the right of private defence serves a social purpose and the court also commented that there is nothing more degrading to the human spirit than to run away in face of peril. on this basis, the Court held that on the basis of the proved facts it cannot be said that the appellants had exceeded their right of private defence. The conviction of the appellants is set aside and they are acquitted.

In Gotipulla Venkata Siva v. the State of A.P., AIR 1970 SC 1079 case, the dispute was with respect to a Kunta (pond in Telugu), which was government property, certain persons who had occupied a part of the land in the Kunta and the accused, were asserting their respective claims, the former to the use of the land in the Kunta for cultivation and latter, to the use of the Kunta as a  source of irrigation. The occupiers and accused belonged to opposite political factions. A suit was filed by the occupiers and the civil court passed two orders of injunction, one restraining the accused from interfering with the occupiers’ possession, and the other, restraining the occupiers from opening sluices in the bund of the Kunta. While the suit was pending the occupies raised corps on their land and the accused raised a new bund. Since their crops were being damaged as a result of the raising of the new bund, the occupiers approached the police ‘authorities and tahsildar for the removal of the bund, but they did not give any effective help. The accused were not willing to allow the removal of the bund without any Government order. Thereupon, the occupiers and their supporters, numbering not less than twenty went to the spot to remove the bund by force, but the accused were present at the spot determined not to allow the bund to be removed. There was a fight among themselves with sticks and spears. During this fight accused were seriously injured. One of the accused (A total of 10) shot at the actual aggressors and killed three of them and injured another. Both the parties took the defence of the right of private defence. The Court observed that: “The right of private defence of person and property is recognised in all free, civilised, 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 wrongs done to them or to punish the wrongdoer for the commission of offences. The right of private defence serves a social purpose.” The Court held that According to S. 96 nothing is an offence which is done in the exercise of the right of private defence and under s. 97 subject to the restrictions contained in s. 99 every person has a right to, defend : (1) his own body and the body of any other person against any offence affecting the human body and (2) 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 these offences. The Court allowed the appeal and acquitted appellants.

In Ram Dhani v. the State of U.P., 1997 CrLJ 2286 (All) case, there was a dispute between the parties over, the ownership of land. There was a fight among members of both parties at the time of harvesting. Two persons from the complainant side died. Some people from accused-appellant sides were injured seriously. The Court observed that the accused-appellants side was in possession over the disputed land, and if the prosecution party cut and removed the standing crop as alleged by the defence then it was, in any case, a case of theft, giving rise to the accused-appellants right to private defence of property even if the prosecution side was not armed with any weapon. The Court further observed that in Section 99, IPC there is an important condition that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Under Section 100 IPC the right of private defence of the body extends to causing death but there is no material from which it may be inferred that any of the circumstances narrated in Section 100, IPC were present so as to justify voluntarily causing death to the assailants. So, in causing the death of the two deceased, the right of private defence of the person has in any case been exceeded by Ram Dhani accused-appellant (now dead) and Chhangur accused-appellant. As far as Satya Narain accused-appellant was concerned, he inflicted only simple injury to Moti Lal prosecution injured and so it cannot be said, that he exceeded the right of private defence of a person. Thus Court accepted the right of private defence of the accused but Court held that they have exceeded their right of private defence. Chhangur accused-appellant was convicted under Section 304A, IPC and sentenced to rigorous imprisonment for a period of seven years and Satya Narain accused-appellant is acquitted of the offences under Section 307, IPC.

A similar view was taken in the case Laxman Singh v. Poonam Singh 2003 CrLJ 4478 (SC).

In Munney Khan v. the State of M.P. (AIR 1971 SC 1491) case, the deceased picked up a  quarrel with the appellant’s brother,  that the deceased overpowered the appellant’s brother, threw him on the ground and sat on his chest giving him fist blows, and that since the appellant could not, prevent the deceased hitting his brother by the use of his fist, he stabbed the deceased in the back with a knife. The trial court found the appellant guilty of murder,  and the High Court dismissed his appeal summarily, agreeing generally with the conclusions of the trial court. The Court held that the appellant had exceeded his right of private defence and his guilty of culpable homicide not amounting to murder punishable under the first part of s.304, IPC. The court observed that the right of private defence is defensive and neither vindictive nor retributive.

A similar view was taken in a case Krishna v. State (2007 CrLJ 3525 (SC)).

In Nityanand Pasayat v. the State of Orissa, 1989 CrLJ 1989 case, there was a fight between two neighbours. The Session Court convicted the appellant under Section 302, IPC, and has been sentenced to undergo rigorous imprisonment for life for having intentionally caused the death of deceased Banabasa Bank. The Appellant appealed in the Orissa High Court. The High Court observed: “a right of self-defence has been granted to a citizen to protect himself by effective self-resistance against the unlawful aggressors and no man is expected to fly away when he is being attacked. He can fight back and when he apprehends that death or grievous hurt would be caused by his adversary, he can retaliate till the adversary is vanquished. But he can exercise such right only if he comes to the conclusion that the danger to his person is real and imminent. If he reaches the conclusion reasonably, then he is entitled to exercise the right so long as the reasonable apprehension has not disappeared. …. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. “. The Court acquitted the appelant.

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 Bhaskaran Nair v. State of Kerala(1991 CrLJ 23 (Ker)) case the court held that the aggressor cannot claim the right to self-defence. A similar view was taken in case Basin Bhowmik v. State of W.B. (AIR 1963) Cal 3)

In Darshan Singh v. State of Punjab (AIR 2010 SC1212) case, the Supreme Court has given following principles governing the right of self-defence.

1. 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.
2. 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.
3. 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.
4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
6. In private defence, the force used by the accused ought not to be wholly disproportionate or much greater than necessary for the protection of the person or property.
7. 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.
8. The accused need not prove the existence of the right of private defence beyond a reasonable doubt.
9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
10. A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of the self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

For More Articles on Indian Penal Code Click Here

For More Articles on Different Acts, Click Here