LIST OF ABBREVIATIONS

A.C Appeal Cases

All E.R. All England Report
AIR All India Reporter
All Cr.R Allahabad Criminal Report
Alta. L.R. Alberta Law Report
Cal. L.R. Calcutta Law Report
Cal. W.N. Calcutta Weekly Notes
Cox C.C. Cox’s Criminal Cases
C.L.R. Commonwealth Law Reports (Australia)
CrLJ Criminal Law Journal
Cr. App. Rep Criminal Appeal Report
Cut. L.T Cuttack Law Times
D.L.R. Dominion Law Report
F. Federal Reporter, Second Series
I. A Indian Appeals
I.C. Indian Cases
I.L.R. Indian Law Reports
Ky.L.Rep. Kentucky Law Reports
L.Cr.R. Lucknow Criminal Reports
M.L.T. (Cr.) Madras Law Times (Criminal)
N.S.W. New Sout Wales (Australia)
N.Y. New York Report
PLR Punjab Law Reporter
SCC (Cri) Supreme Court Cases (Criminal)
S.C.R. Supreme Court Reports
S.C.Cr.R. Supreme Court Criminal Reports
Tex Cr. App. Texas Criminal Appeal
U.S.S.C.R United States Supreme Court Reports
W.L.R. Weekly Law Reports (England)

JOURNALS
ALJ Allahabad Law Journal
A.S.I.L Annual Survey of Indian Law (Indian Law Inst)
Col. L.R. Columbia University Law Review
Harv. L.R. Harvard Law Review Journal of the Indian Law Institute
Jub. L.J. Jubalpur Law Journal
Karn. L. J. Karnatak Law Journal
K. L. J. Kerala Law Journal

MISCELLANEOUS

Ibid, or Id (Ibidem) in same place

K.B King’s Bench
op. cit. (opera citato) in the work cited
P.C. Privy Council
Q.B. Queen’s Bench
SC Supreme Court (India)
 CHAPTER-1
THE CONCEPT OF SELF DEFENCE

1.1 INTRODUCTION

Self-preservation is a basic human urge that is acknowledged by all civilised countries'

criminal jurisprudence. Within certain reasonable limits, all free, democratic, and civilised
countries recognise the right to self-defence. 1 To assert a right of private defence that includes
voluntary causing of death, the accused must establish that there were circumstances that gave
rise to reasonable grounds for believing that he would suffer death or grave harm. The law of
private defence does not require the individual who has been assaulted or is under suspicion
of being assaulted to flee for their own protection. It provides him the right to defend himself,
and the law grants him that right. There is no right to self-defence if there is no reasonable
fear of harm. The need to avoid a coming threat must be present, whether real or perceived. 2
Self-preservation is paramount since nothing is more important to man, or any other animal or
living thing, than bodily health. As a result, one of the basic rights is the right to protect one's
person from bodily harm. It is natural to defend oneself; one would choose to kill rather than
be killed.

Private Defence Law can be traced back to the dawn of civilization, when everyone had the
right to defend his or her life and property. Communities have used their right to defend their
property and lives many times throughout history. In fact, it is not an exaggeration to say that
the two world wars that history has witnessed, as well as the ongoing conflicts between states
and between communities within states, are examples of communities exercising their right to
defend their land, water, and other natural resources from encroachment by the State or vested
interests in society. Every legal system in the world today understands and accepts that
everyone's life and property are valuable. The natural right to defend oneself against violent
acts of others in order to safeguard one's life and property was established in the Indian Penal
Code of 1860.3

In his article "Private Defence", legal scholar Michael Gorr made the following observations:

"With the exception of extreme pacifists, almost everyone thinks that it is occasionally
morally appropriate to engage in what Glanville Williams calls "private defence," i.e.,
inflicting substantial (even death) harm on another person to defend oneself or an innocent
third party from suffering the same." 4

The presence of other people who are merely standing by as silent witnesses has no bearing
on this right of Private Defence. 5 The law expects citizens to stand firm in the face of illegal
aggression. When confronted by criminals, no one is required to flee or exhaust all other
options before exercising his right to self-defence. It is not expected of man, no matter how
law compliant, to act like a rank coward at any time. Every free country's residents should be
encouraged to exercise their legal right to self-defence. There is nothing more demeaning to
the human soul than to run away in the face of disaster. If a man stands his ground and fights
back against his attackers, he is perfectly justified. However, this is a right of defence only,

1
Suresh Singhal v. State (Delhi Administration), 2017(2) SCC 737
2
Raj Singh v. State of Haryana (SC) 2015 AIR (SCW) 2941
3
http://www.jstor.org/stable/pdf/43953445.pdf last accessed on 14 June, 2014
4
Journal “Law and Philosophy” Vol. 9 No. 3, August, 1990 p. 241
5
Kala Singh v. Emperor, AIR 1933 Lahore 167
not of punishment or vengeance. The force used to defend one's person or property must not
be excessively disproportionate to the injury that is being avoided or reasonably anticipated.
The right to self-defence should never be used for vengeful or evil purposes. 6

It is not illegal to defend oneself or another from unlawful aggression that causes a reasonable
fear of death or grave bodily damage, or to use force to carry out a legal obligation, as long as
no more harm is caused than is necessary. 7 The rule of self-preservation dictates that a person
must safeguard his or her life or physical integrity even if it means sacrificing the assailant's
life or limb. 8 The right is a means to an end, to protect the defender's legitimate legal
interests.9 The law does not need or wish for people to submit quietly to a bodily assault
because doing so would only provide an incentive to criminals. If the right to life is upheld
but the authorization to employ reasonable means to repel hostile threats is denied, there will
be a logical conflict. In all legal systems around the world, self-defence is the oldest premise
for justifying the use of force. An individual has the right to protect himself against an assault
by using whatever force is required. This right extends not only to his own body but also to
that of his family and, in the case of a felony attack, even to that of a third party. The law
allows for the defence of others because righteous wrath, sparked by seeing the powerful
mistreat the weak, is unquestionably a moral impulse. It encourages people to put their own
safety first and help those in need. The law must tread carefully so as not to sever the ties that
bind this generous partnership of courage and humanity. Let it instead bestow all honour and
reward on the person who safeguards the interests of others. It is in the public interest for
every man to regard himself as a natural protector of others.10 The right to self-defence is
essential for the protection of one's person, habitation, or property from an aggressor who
clearly intends and attempts to take them away. Without a question, the state's principal
responsibility is to defend the lives and property of its citizens, but no state, no matter how
great its resources, can delegate a police officer to monitor each and every individual's
activities and protect him from criminal acts. There may be times when state authorities'
assistance is unable to stop an unlawful aggression, either because there isn't enough time to
seek for it or for other reasons. As a result, in order to address such needs, the law has granted
everyone the right to private defence. 11

Defending one's own person; right, etc., according to the Chambers English Dictionary. 12 This
dictionary uses the term "self-defence" instead of "private defence." This is the most exact
meaning of private defence: any action taken to protect oneself and one's birth rights. The
term 'right' here refers to a person's legal rights.

"Where a person commits a tort in defence of himself or his property, he is not always
responsible if the act was in the circumstances of a reasonable nature," writes L.B. Curzon. 13
Another meaning of private defence is "an action conducted in justifiable defence of one's
person or property," according to Osborn's Concise Law Dictionary. It can be used as a
defence in a tort action. The right to defend one's family and most likely, any other individual
against unlawful force.14

6
D.V. Chitaley & S. Appu Rao, The Indian Penal Code, Vol. I, (1969), pp. 641- 643
7
Stephen, J. Fitzjames, Sir, A Digest of the Criminal Law (91th ed., Sweet & Maxwell, London, 1950) p. 252
8
Holmes, Oliver Wendell, The Common Law (Macmillan, London, 1968) p. 40; Gur-Arye, Miriam, “Should the
Criminal Law Distinguish between Necessity as Justification and Necessity as an Excuse?” 102 (1986) LQR 71
at p.71
9
Brett, Peter, An Inquiry into Criminal Guilt (Sweet & Maxwell Ltd., 1963) p. 152
10
Atkinson, Charles M., Bentham's Theory of Legislation (Oxford University Press, 1914) Vol. 11, p. 46
11
Ibid.
12
Schwarz, C.M., Chambers English Dictionary, 1335, (1998)
13
L. B. Curzon, A Dictionary of Law, 289, (1983)
14
Roger Bird, Osborn’s Concise Law Dictionary, 278, (1983)
"It would be a major mistake to see Self-Defence as an inevitable evil experienced by the law
due to the hardness of men's hearts," Pollock says. The right is the only one that is both just
and flawless. As previously stated, every species with means of defence has the impulse to
"repel force with force." When the originating force is illegal, the law may allow this natural
right or power of man to be exercised. Sudden and resolute resistance to unjustified attack is
not only a thing to be tolerated; it is a moral imperative in certain cases." 15

The State and its personnel are granted exclusive law enforcement obligations in structured
societies. Individuals must rely on and defer to the state's monopoly of law enforcement,
which prohibits private acts of retribution and violence. The right of Private Defence, like the
defence of necessity, is an exception to this rule, allowing individuals to take the law into
their own hands. The extent of Private Defence, on the other hand, is carefully limited and
impacted by the structure of State-individual relations.16 The nature of society interactions and
expectations of how individuals are to behave vis-à-vis one another would also influence the
limits of Private Defence as the use of private force by one individual against another. As a
result, private defence has an impact on organised societies' political, moral, and social
dimensions. Private Defence, in general, allows individuals to employ coercive force to
defend themselves against an attack by another. Private Defence will be influenced by
specific political and moral ideals in society, according to one interpretation of this general
concept. Private Defence can also be thought of as a means of defending the socio-legal order,
with the person using defensive force acting as a "representative or protector of society, public
order, and the legal system." Because private defence is a natural and intrinsic right of every
man, society's laws cannot override it. It cannot be superseded by the law of society, even if it
is curtailed to some extent. This right has been recognised since antiquity, but only within
specific bounds.17 The survival of the fittest was the rule in nature, with the idea of self-
preservation dictating much of human conduct. A man has the inherent natural right to murder
another in self-defence. This was almost an unrestricted privilege that each individual was
granted by the 'Law of Nature.' The intrinsic right of a person to protect himself and his
property in the face of danger is still recognised by the liberal democratic state today. This
differs from the State's monopoly on violence, in which the State alone is justified in using
force or punishing the wrongdoer in all circumstances. The law relating to Self-Defence is
thus merely an extension of the principle of necessity, with a clear and present danger, the
imminence of harm to either person or property, and the consequent necessity to protect
oneself or one's property serving as the test or a reasonable exercise of Self-Defence. This is
in line with a fundamental goal of criminal law, which is to protect lawful action from being
labelled illegal. The right to self-defence is one that has been passed down from ancient law
givers. Manu advised using arms in self-defence, and the principle may be traced back to
Anglo-American jurisprudence. The right to private defence is based on the principle that, in
certain circumstances, a person's conduct is justified even if it is otherwise criminal, and
homicide committed in such circumstances has been dubbed "excusable homicide," with the
slayer performing a task that the State would normally perform. As a result, the law allows
what the law demands. This is why the right has been carefully limited while yet being
sacredly safeguarded. Any community must have the right to self-defence. It is now widely

15
Pollock, Law of Torts, quoted in R.C. Nigam, at pp. 421-422.
16
Several scholars, like George Fletcher, have stressed the political dimension of criminal law. Fletcher, for
example, illustrates how various "ideal forms of political theory" influence a state's use of coercive action
through the criminal law. Because the individual's autonomy is regarded as a sacred virtue in a libertarian
society, criminal law is used only as a last resort. Punishment is used in a communitarian state with the goal of
reintegrating the offender into society and restoring the connection that was harmed by the crime. The
employment of criminal law by a perfectionist state tries to enhance the offender's 'character' and educate him on
his mistakes. Fletcher also points out that these approaches are rarely used in concert or separately, with some
having more sway in specific areas of criminal law than others. 156–88 in G.P. Fletcher, The Grammar of
Criminal Law, Oxford University Press, 2007.
17
Reginald A., Melson, The Indian Penal Code, Vol. I, (1970), p. 387
accepted as a justification for otherwise illegal behaviour. Even the United Nations has
recognised it as a universal human right. The right to self-defence, however, is as sensitive as
it is important, and it has not been treated with the care it deserves. In the event of self-
defence pardons, automatic pardons must not be granted because this would lead to an
illogical interpretation of the law and would aid and encourage homicide. The act of self-
defence should be shown to be defensive rather than offensive, and there should be no hints of
vengeance or reprisal, as it is completely instinctive. 18

As Donovan J. points out, the law of private defence is "not written, but born with us; a law
which we have sucked in and imbibed from nature itself; a law which we were not trained in,
but which is ingrained in us, namely, that if our life is in danger from robbers or enemies from
violence, every means of securing safety is honourable." When arms are raised, laws are
quiet, and do not expect to be waited for, since he who waits will incur an unjust
consequence. Reason has taught learned men, necessity has taught barbarians, custom has
taught all nations, and nature has taught wild beasts, that they must at times repeal violence by
whatever means they may, without concluding that all men must perish at the hands of their
foes."19

The right to private defence does not apply to conduct that are not illegal. It can be used
against any attacker, whether sane or deranged, competent or stupid, and mistaken or not.
Regardless of their motive or meaning, overt attacks are defeated by the right. It exists even
when innocent people are hurt, when life or limb is in jeopardy, and there is no other way to
defend the victim. The criteria is whether there was an immediate need for Self-Defence, as
well as whether it was necessary for the defendant to take that specific course of action. If the
attack is actual or threatening, the right exists. The appearance of risk must be real, but not the
peril, in order to justify the taking of life on the basis of appearance of peril. The act of killing
must be carried out because of a genuine and well-founded fear of impending harm. As a
result, the courts should consider the circumstances from the perspective of the accused rather
than a detached observer.20 The legal premise that it is illegal to kill is based on the same
desire and right to live as the right to defend one's life from death or grave bodily harm. 21

When a threat to a person or property is immediate, the right of self-defence arises and
remains available as long as the threat exists. The right of self defence can be used as a shield
to deter an unjustified attack on a person or property, but it cannot be used to provoke the
attack, implying that it should only be used as a preventive measure rather than to begin an
attack. As a general rule, an individual can take whatever defensive or evasive actions they
believe are reasonable in the circumstances. Self-Defence, unlike much of the common law, is
not a formulaic area of law, but rather focuses on the facts of each case.

Even Anglo-American jurisprudence can be traced back to the origins of the concept of self-
defence. 22 All civilised jurisprudence follows this concept. A person in dread of his life is not
expected to modify his defence step by step or tier by tier, according to Robert B. Brown v.
United States of America (1921). "Detached reflection cannot be demanded in the presence of
an elevated knife," wrote Justice Holmes in the aforementioned case. 23

18
Ali, Dr. Meer Basharat, Assistant Professor, N.C Law College Nanded, “Right To Private Defence in Indian
Penal Code Statutory and Judicial Attitude” Volume-5, Issue-5, May – 2016. ISSN No 2277 – 8160, GJRA -
GLOBAL JOURNAL FOR RESEARCH ANALYSIS, p. 292-293
19
Nigam, R.C., Law of Crime in India, Vol. I, (1965), p. 420
20
Smt. Sandhya Rani Bardhan v. The State, (1977) CrLJ (NOC) 245 (Gauhati)
21
Howard H. Baker, Homicide and Self- Defence, Tennessee Law Review, Vol. XV (1937- 39), p. 297
22
Jack Lowery, “A Statutory study of Self- Defence and defence of others as an excuse for homicide”,
University of Florida Law Review, Vol. V (1952), p. 58
23
Robert B. Brown v. United States of America (1921) 256 US 335
It is now nearly universally accepted that a guy who kills another person or even causes
grievous physical harm in self-defense is lawful and should be acquitted. Justifiable
homicides in strictu sensu were not punishable under early English law. They were not
deemed felonies, and the killer's property was not forfeited. This was due to the fact that
homicide was either prohibited or tolerated by law. It is founded on the ancient common law
idea that what the law requires, the law also justifies. In other words, in circumstances of
justifiable homicide, the slayer is viewed as acting on behalf of the State. However, in the
current period, acts that are homicidal in character can be justified if they meet the legal
requirements. However, it took a long time for the homicidal deeds to be justified.

A state owes its citizens the duty to defend their lives, limbs, and property. However, no state,
no matter how resourceful or well-organized, will be able to assign a police officer to each
individual to defend his or her body and property, or to follow the steps of every person who
poses an unlawful threat to another's body or property. A state can never provide assistance to
everyone at all times and in all circumstances. In such a case, an individual will be obligated
to use all available measures to preserve himself and his property in order to satisfy his urge
for self-preservation. He is not expected to surrender or leave; rather, he is expected to stand
firm and neutralise the looming threat.24 He has the right to stay and defeat the threat. 25 He
who is in this situation has the right to fight with just force to oppose the threat or until the
State arrives to save him. The right to self-defence is based on the general proverb that
"necessity recognises no law" and that "it is man's fundamental obligation to aid him first."
Every person had the right to self-preservation, but nothing could be done to attain that goal if
it interfered with another person's right.

Hari Singh observed thus:

"Based on the basic idea that man's first responsibility is to help himself. It is then predicated
on the concept that the state's police are not always present, and that a person may strike out
for himself or for another. However, if unqualified, such a regulation could encourage
vengeance, resulting in societal chaos. As a result, it establishes the rule's boundaries as well
as the conditions under which it operates."26

In times when State assistance is unavailable, India and other modern civilised cultures are
influenced by this concept and grant their inhabitants every right to fight the violent deeds of
others, i.e. to repeal violence by violence, although with limitations.

From the foregoing explanation, it is clear that the right to private defence is a valuable
defence in criminal law, as stated in the Indian Penal Code's "General Exceptions." Sections
96 through 106 of the Indian Penal Code include the applicable laws. These rules, however,
should not be interpreted in light of principles defining the right of self-defence under English
common law. The provisions are self-contained, and the scope of the right must be
determined by looking at the terms used in the Sections.

1.1.1 SELF- DEFENCE AND PRIVATE DEFENCE

The terms "Self-Defence" and "Private Defence" are interchangeable. In truth, they both
signify the same thing. 'Se Defendendo' is a Latin phrase that means "to defend oneself."

24
Jai Dev v State of Punjab, AIR 1963 SC 612; Also see Yogender Morarji v State of Gujarat, AIR 1980 SC
660, (1980) CrLJ 459 (SC)
25
George Dominic Varkey v State of Kerela, AIR 1971 SC 1208, (1971) 3 SCC 275, (1971) CrLJ 1057 (SC)
26
Hari Singh Gour, Penal Law of India, 7th ed., Law Publishers, Allahabad, p. 421
When civilization had not yet dawned, only one law applied, and that was might is right.'
With the advancement of society, the State assumed responsibility for protecting its subjects'
person and property. However, experience showed that the State was unable to guarantee such
protection, and thus its subjects were privileged to protect their person and property by
inflicting simple and grievous injuries, within their reasonable limits, on those who intended
to harm them. In this study, the terms "private defence" and "self-defence" are used
interchangeably. Both words have the same meaning. Despite this, most people prefer to refer
to self-defence as "Self-Defence" rather than "Private Defence." Most jurists believe that the
term "private defence" is more appropriate because it refers to an individual's protection of
not just himself, but also other people and property.27

1.2 THE CONCEPT OF SELF- DEFENCE

Self-defence is an ever-changing notion. It differs from country to country and from time to
period, depending on the facts of each instance. Over the years, the concept of self-defence
has evolved significantly. Prior to 1267, a man was executed in self-defence cases as if he had
committed a felony since such killing was not considered justifiable murder. The party named
did not have a right to seek acquittal from the jury. He was imprisoned and placed at the
mercy of the king, who granted him a pardon. The idea that a killing in self-defence absolved
a person of homicide liability was not accepted in early English common law. 28 Exceptions to
criminal culpability were a fantasy at the time.

The clashing interests of the aggressor and the defender gave rise to Private Defence, which
was further complicated by the fact that the aggressor is the person responsible for the fight,
i.e. the party morally responsible for endangering the defender's interests. In the balancing
procedure, the aggressor is entitled to less weight.29

The defensive force, on the other hand, must be reasonable and proportionate to the threat.
There are occasions when lethal action is required to prevent a minor outcome. It is clearly
out of proportion to the threat and hence illegal. 30

In other words, the defender's act, which may be illegal in and of itself, may be justified by
the fact that he is defending himself against an attack. In the case of private defence, the law
considers the lesser of two evils. It's also a rationale for the necessity to preserve the
defender's legitimate interests, as well as the public peace and the judicial system, from a
transgressor.31

With the emergence of the notion of laissez-faire, or welfare state, and the growth of society,
the state now has the obligation of protecting the individual's person and property. The
essential right of self-defence has been recognised by the judiciary, and the government has
given it formal sanction by implementing statutory provisions in the penal code.

1.2.1 THE LITERAL MEANING OF SELF- DEFENCE

Killing in Self-Defence incorporates "the primary law of nature," as the famous English legal
scholar William Blackstone described it. The philosopher Thomas Hobbes presents a cogent

27
Michael J. Allen, Textbook on Criminal Law (1991) 156
28
Donovan & Wildman, Is the Reasonable Man Obsolete? A Critical Persecute on Self-Defence and
Provocation, 14 Loy. L.A.L. REV. at p. 442, (1981)
29
G. Fletcher, Rethinking Criminal Law, p. 859-860, (1978)
30
Ibid, at 857-858
31
Stanley M.H. Yeo, Compulsion in the Criminal Law 106 (1990)
justification for the illogic of dismissing genuine claims of Self Defence based on this
principle of self preservation in his rationale for the defence of duress:

"If a man is driven to do something against the law by fear of imminent death, he is
completely pardoned; since no law can compel a man to abandon his own survival." And even
if such a law were mandatory, a man would reason: "If I don't do it, I will die soon; if I do it, I
would die later; therefore, by doing it, I will gain time of life." 32

The term "Self-Defence" appears to be originated from the Latin term "se defendendo," which
is described as "defending himself, in Self-Defence, Homicide Committed as defendendo is
excusable" in Black's Law Dictionary. James Wilkinson broadened the definition to include
defending not just one's own person but also one's rights and property. This appears to be
broader than the previous one because it includes not only human rights but also individual
rights. It has an almost same meaning to that of "Self-Defence" today. In Jowitt's dictionary,
however, it is described as "Self-Defence- life and limb are of such high value in the opinion
of the law that it pardons even homicide if committed se defendendo, or in order to maintain
them."33

Many different dictionaries include definitions for the term "Self-Defence." "It is permissible
to cause harm or even death in order to defend oneself or another person from unlawful
violence, 34 provided that the person causing the harm or death did everything he could to
avoid the violence, such as by retreating where possible, and inflicts greater injury than he, in
good faith and on reasonable grounds, believes to be necessary to protect himself or the
other," David M. Walker wrote. If the defence is successful, the accused is free of blame
because the harm or death was justified; otherwise, he may be charged with assault or even
murder. The defence of his own life, but also the defence of another, such as a kid, against
rape, maybe sodomy, and the defence of another whom one properly should protect."35 Self-
Defence was originally defined as the defence of one's own person against an injury
threatened or caused by another. It was then expanded to include the protection of one's
property within its scope.36

The right is primarily a defensive one, not a retaliatory one. As Russell points out in Law of
Crimes, "a man is justified in resisting by force anyone who obviously plans and attempts to
commit a known offence against his person, habitation, or property by violence or surprise."
In these instances, he is not required to retreat and may not only fight the attack where he is,
but may also pursue his adversary until the threat has passed, and if he kills his assailant in a
conflict between them, such killing is justified. 37 The law of private defence is founded on
two fundamental principles:

I. Everyone has the right to defend his or her own body and property, as well as that of
others.

32
http://law.jrank.org/pages/1478/Justification-Self-Defense.html last assessed on 1 July, 2014
33
John Burke, Jowitt’ s Dictionary of English Law, Vol. II (London), (1977) p. 1629
34
Black’s Law Dictionary, (1999), p.1364: “The use of force to protect one self, one’s family, or one’s property
from a real or threatened attack”. Shorter oxford English Dictionary, Vol. II, (2007), p. 2744. “Defence of one
self, one’s right or position, etc; aggressive action, speech intended as defence”. Wharton’s Law Lexicon, Indian
economy reprint (2004), p. 912. “Both life and limbs of a man are of such high value, in the estimation of Law of
England, that it pardons even homicide, if committed se defendendo, or in order to preserve them”. K.J. Aiyer’s
Judicial Dictionary, (2001), p. 772 defines Private Defence as, “The act of one to defend his person or property
without any aid of law”
35
David M. Walker, the Oxford Companion to Law, Oxford, (1980), p. 1128
36
Galnville Williams, Text Book of Criminal Law, London, (1978), p. 449
37
Russell on Crime (11th ed, by JWC Turner 1958, vol. I), p. 491.
II. The right cannot be used as a justification for aggression that causes harm to another
person, or for inflicting more harm than is necessary for self-defence.38

As a result, the current stance is that the right to private defence encompasses both self-
defence and the defence of strangers.

1.2.2 BASIS OF THE RIGHT OF SELF- DEFENCE

Self-defence is an inherent instinct in humans that is shared by all other animals. According to
B. Parke:

"A man who is struck by nature is compelled to resist, and he is justified in using such force
as will avoid a repeat."

Of course, the extent to which this right of private defence is recognised is determined by the
state's ability and resources to protect its citizens. As a result, among the tumultuous
population, this right to personal protection is more extensive.

The right to self-defence is a treasured and precious right that allows citizens to defend
themselves and their property by effectively resisting unlawful violence. The primary idea
underlying the doctrine of the right to private defence is that when an individual or his
property is in danger and quick assistance from the state apparatus is unavailable, that
individual has the right to defend himself and his property. The law assumes that every citizen
will stand firm in the face of assault. When a person is attacked by criminals, nothing is
expected of him. Before invoking his right to private defence, no one is required to exhaust all
other options. Every free country's residents should be encouraged to exercise their right to
self-defence. It is a necessary corollary of the doctrine of Private Defence that the violence
that a citizen is entitled to use in defending himself or his property must not be unduly
disproportionate to the injury that is to be avoided or that is reasonably anticipated, and it
must not exceed its legitimate purpose. The right to self-defence must never be used for
vengeful or evil purposes. A person whose property is violently attempted to be occupied by
trespassers is not required by law to flee and seek protection from the authorities. The right to
self-defence serves a communal function, and it should be defined broadly. This right will not
only operate as a deterrent to evil people, but it will also cultivate the right spirit in a free
citizen. There is nothing more demeaning to the human soul than fleeing from danger. The
right to self-defence can only be used to stop unlawful action. The right to private defence
assumes that the person against whom the right is asserted has been attacked or has been
aggressive. The accused cannot claim any right to Private Defence if the person who is
attacked by the accused is not the aggressor. The accused cannot use Self-Defence as a
method or pretext for initiating an attack in order to keep his adversary at bay and then claim
Self-Defence exemption. Private Defence is based on the notion that it is legal for a person to
use a reasonable amount of force to defend himself or another against any unlawful use of
force directed at him. Private Defence must be proportional to the severity of the attack that is
being attempted to be thwarted. The idea of need must be differentiated from the right of
private defence. Though the right to self-defence stems from necessity, it is broader, and it
cannot be exercised in all circumstances of necessity. In current jurisprudence, the dictum
"Necessity has no law" has no place. The State, as a matter of law, identifies some
circumstances that are externally compelling circumstances that are not self-created but come
from outside sources, and the accused, as a result of the external compulsive circumstances,
acts in a specific manner, resulting in the commission of the so-called offence. External

38
Gour Hari Singh, Penal Law of India, (11th ed., vol.II, 2000), p.797
compulsion is not taken into account by the law, and the act is considered excusable. The state
has a responsibility to safeguard its citizens and their property. However, there may be times
when the assistance of state machinery is unavailable and a person or his property is in grave
danger. In such circumstances, a person is permitted to use force to protect his or her person
or property from an immediate threat. This is known as the right to self-defence. However,
such a right is subject to certain limitations and is not available in all situations. Against
public officials, the right to private defence is not attainable.functioning within the scope of
their legal authority Only reasonable force is permitted; force that is appropriate to the
looming danger.

1.2.2 DIFFERENCE BETWEEN “SELF- DEFENCE” AND “UNDER

PROVOCATION”

When provocation takes the shape of a physical assault of the type that would be expected to
elicit an outpouring of emotion in the immediate reprisal from a Self-Defence resistance. As a
result, it's not surprising that early authorities didn't always distinguish between killing in self-
defence and homicide in response to provocation. The punishments were essentially the same
in both cases at the time, but presently a homicide performed in self-defence carries no legal
consequences, and one committed under duress carries the felony of manslaughter, as it did in
the past. However, it has long been known that a light physical attack, which by itself would
not be considered sufficient to arouse murderous feelings in an ordinary man, can do so when
accompanied by insulting words or gestures. Furthermore, insulting words alone, especially in
certain circumstances, can have the same effect.

1.2.3 CONCEPT OF PRIVATE DEFENCE IN INDIA

Sections 96 to 106 of the Indian Penal Code codify the concept of private body and property
defence in India, which are ostensibly founded on the idea that the right to self-preservation is
a basic human instinct. These sections, which are grouped under the subheading 'Of the Right
of Private Defence' in Chapter IV, 'General Exceptions,' form a comprehensive legislative
framework for the right of Private Defence because they deal with the subject-matter, nature,
and scope of the right of Self-Defence in India, as well as the limitations within which the
right must be exercised. These rules are complete in themselves, and their interpretation
cannot be based on common law principles defining the right of self-defence. 39

The Indian Penal Code does not define the term "private defence," which is commonly used in
India. The judiciary was asked to define the contours of these terms in the absence of any
statutory definition. In India, the right of private defence refers to one's or another's right to
defend one's or another's person or property against a conduct by another that would have
amounted to a criminal if the right of private defence had not been invoked. It provides
reasons for actions that would otherwise be considered criminal. To put it another way, it
establishes a legal exception to criminal culpability. The Indian Penal Code's law of private
defence is based on English law, but it has been amended with minor alterations to fit the
country's circumstances. As a result, English law is the starting point. Sections 96 to 106 of
the Indian Penal Code deal with the right to private body and property defence as it is applied
in India. These Sections assist courts in determining whether an act was done within the right
or not, and whether the accused should be acquitted or punished. The law commissioners
believe that the notion outlined in these Sections should not be regarded as a flawless test on
the subject.40 However, we believe it is correct to state that there is no part of the code with

39
Barisa Mundi v State, AIR 1959 Pat 22, (1959) CrLJ 71
40
Nigam, R.C., Law of Crimes in India, Vol. I, (1965), p. 426
which we are less satisfied than this. We cannot accuse ourselves of a lack of attention or
diligence. There is no part of our work that has given us more anxiety or that has been
rewritten more frequently than this. Nonetheless, we are constrained to believe that we leave
it in a very flawed state; and, while we have no doubt that it could be far better implemented
than it has been by us, we are inclined to believe that it must always be one of the least precise
aspects of every criminal justice system.

The Supreme Court stated in Narain Singh v. State of Haryana that the right to private defence
is primarily a defensive privilege limited by the governing statute, the IPC, and attainable
only when the circumstances plainly justify it. It is a right of defence, not retaliation, intended
to deter unlawful violence rather than as a form of retaliation. It should not be used as a
pretence for being vengeful, hostile, or committing an offence. While the Indian Penal Code
allows for the exercise of rights, it takes care not to create or devise a method whereby an
attack can be used as a pretext for killing. A right to defend does not entail the right to go on
the attack, especially if the need to defend has passed.

If the right to private defence is used after an offence has been committed, it will be useless.
This right cannot be utilised just because an illegal or wrongdoing has occurred. Not only
should that act be an offence, but it should also be an offence of a certain category, such as
theft, robbery, mischief, or criminal trespass.41

In India, the right to self-defence can only be used to stop unlawful aggression, not to
retaliate. To put it another way, the right to private defence is a defence right, not a right of
retaliation or retaliation. The accused does not have to plead that he acted in the exercise of
his right to private defence. When a plea or Private Defence is based on the wordings of
section 97 of the Indian Penal Code, it is the court's responsibility to analyse it in light of the
evidence and material presented to it. The accused can only be found guilty of the crime if the
plea is not established.

The right to Private Defence is only available to someone who is suddenly presented with the
urgent need to avert an impending threat that is not of his making. To meet the necessity, the
accused should not go above the limitations.

1.3 RESEARCH METHODOLOGY

To make the current research worthwhile, the researcher used a doctrinal and non-empirical
research method. The research was done with the help of secondary sources.

Secondary data was gathered from a variety of books, acts, periodicals and journals, research
papers, encyclopaedias, reports, government publications, and other sources. Comparative,
historical, and analytical methodologies were employed to analyse various secondary sources
as well as the many major instances on self-defence in India, England, America, and Australia
during the research. To cite pertinent writing, a consistent footnoting style was used
throughout. The researcher has attempted to make this research as authentic as feasible by
using all available materials.
All of the foregoing sources, as well as periodicals, Indian Acts, English Acts, American Acts,
and Australian Acts, were used to compile the data. The researcher has additionally gathered
secondary data from legal and other relevant websites, media articles, and any other means
available as needed and if appropriate.

41
Chandra Bhan v. State, AIR 19 All 39
1.4 AIMS AND OBJECTIVES

The goal of this research is to:

I. Investigate and analyse the idea of private defence.
II. To investigate the nature and origins of the law governing the right to self-defence.
III. To investigate the significance and necessity of private defence.
IV. To research and analyse India's current statute on the right to private defence.
V. To research, analyse, and evaluate self-defence laws in India, England, the United
States, and Australia.
VI. To identify faults and statutory limits in India's current laws on the right to private
defence.
VII. To examine the most recent judicial and legislative trends in the area of the right to
private defence.
VIII. To identify and propose strategies and legal remedies to close loopholes in India's
penal statutes relating to the right to private defence.

1.4.1 HYPOTHESIS

In the current investigation, the following hypothesis is being tested:

Respect for human life is a barometer of societal progress, and a well-crafted legal system
managing this life and ensuring its sanctity is critical to its progress. It is critical that the very
basic right of self-defence is not overlooked, and that it is accorded the exalted and
inalienable status that it has enjoyed throughout history. In this context, a comparative study
of the adequacy of law relating to private defence in the current Indian scenario is required.

1.5 REVIEW OF LITERATURE

'The foundation and inspiration for substantial, worthwhile research,' according to the
literature assessment. A literature review serves three purposes in this thesis. To begin, it
examines previous research, serving as a beginning point for identifying material and its
significance to one's own research, as well as familiarising oneself with the subject area.
Second, it enables the author to assess the quality of existing scholarly work and choose the
finest research projects. Finally, a literature study can assist in placing the thesis in context by
outlining how it will differ from that of other researchers, allowing it to stand out as a unique
contribution to the field. This literature study includes identifies academic comments on the
right to private defence in the realm of law. It establishes the conceptual foundation for
determining the thesis's primary themes. The following literature has been thoroughly
reviewed so far for the purposes of this study.

(A) BOOKS:

i. The book "Principles of the Law of Crimes," written by Shamshul Huda, was
reissued in 2011 by Eastern Book Company in Lucknow. This is one of the most
important classic texts on criminal law. The essay was widely lauded when it was
first published as part of the Tagore Law Lectures series, and it is still considered
the best work on the subject today. Since the publication of the book, the provisions
of the Indian Penal Code have remained untouched. As a result, the scholarly
author's superb exposition of criminal law fundamentals is still applicable today.
The book's overall structure and layout are commendable. The researcher has
reviewed Lecture XII of this book, which is about the right to private defence, and
 found that it contains a clear treatment of the principles with references to key
English and Indian cases on the subject, which is very helpful in grasping the entire
concept.

ii. R.C. Nigam's book "Law of Crimes in India" was released by Asia Publishing
House in New York in 1965. This book covers the history of criminal law as well
as the general principles, such as the nature and definition of crime, theories of
criminal liability, the mental element, preliminary crimes, group liability,
punishment, jurisdiction and limitations, and general defences, such as immunity,
accident, necessity, duress, and private defence, as well as the accused's rights and
protection. The researcher examined chapter eleven of this book, which is on the
right to private defence, and found that it exemplifies how to describe the topic
using various judge's and author's opinions and judgements. He organised the
chapter into four sections: first, the people against whom it can be used; second, the
boundaries to which it can be used; third, the scope to which it can be used; and,
last, the start and end dates.

iii. The Oxford University Press published David Ormerod's book "Smith and
Hogan- Criminal Law" in 2008. This book is the most complete treatment of
criminal law available. It gives a clear, up-to-date, and in-depth description of the
subject, as well as suggestions for additional research. It is a must-have reference
work for anyone learning the fundamentals of criminal law.

iv. In 2002, Cambridge University Press published J.W. Cecil's edited book "Kenny's
Outlines of Criminal Law." The book provides a thorough knowledge of the laws
of criminal law, allowing the reader to build a firm comprehension of the
fundamentals.

v. The Oxford University Press published Andrew Ashworth's book "Principles of

Criminal Law" in 2009. One of the best textbooks for describing the essential
ideas of criminal law, this book is one of the best. It's a fascinating and informative
look at criminal law. The researcher is particularly interested in the book's chapter
on self-defence, which goes into great length about the various aspects of self-
defence, justifiable force, and individual autonomy. It emphasises on the
fundamental concept of the necessity and necessity of self-defence. It finds that the
law governing self-defence and justifiable force is predicated on resolving a
conflict between two parts of the right to life: the individual's autonomy and the
right to safeguard life by employing even lethal force if necessary.

vi. LexisNexis Butterworth published Prof. K.L. Vibhute's revised book "PSA
Pillai's Criminal Law" in 2008. Without a doubt, this version is a comprehensive
reference. There are fifty-one chapters in the book, as well as a comprehensive
table of cases and a concise index. This is a book about Indian criminal law, not a
commentary on the Indian Penal Code. It delves into the fundamentals of the right
to self-defence, describing the underlying principles from the elements and citing
relevant English case law. Nonetheless, the book makes extensive use of recent
Indian case law, with the anchoring on English case law done primarily to highlight
to the establishment of principles.

vii. The Indian Penal Code, written by Ratanlal and Dhirajlal, was published in its
33rd edition by LexisNexis Butterworth in 2006. This famous commentary on the
Indian Penal Code, first published in 1896, is divided into sections. K.T. Thomas
 and M.A. Rashid reviewed this version carefully and meticulously, taking into
account changes brought about by recent legislative revisions as well as higher
court judgements. The Criminal Law (Amendment) Act, 2013, is comprehensively
covered in this edition, which has been completely rewritten. The most recent and
noteworthy Supreme Court cases, as well as those from several High Courts, have
been included.

viii. In 2015, LexisNexis Butterworth published the 8th edition of K.D. Gaur's book
"Criminal Law- Cases and Material." In the judgements of many courts in India
and overseas, a classic book in the subject of criminal law has been quoted with
favour. The current edition, which has been completely edited and updated,
provides a comprehensive overview of the statutes as well as a concise study of the
black text. Fundamentals of crime and criminal law, concepts of criminal liability,
mens rea under the Indian Penal Code and other statutory offences, strict
responsibility of hazardous substance makers, cybercrimes, and crimes against the
human body are all covered in this book. Sections 326A, 326B, 354A, 354B, 354C,
354D, 370A, 376A, 376B, 376C, 376D, and 376E of the Criminal Law
(Amendment) Act (13 of 2013) have been incorporated, as have recent revisions to
section 375 and the addition of a number of new offences. The book's utility is
enhanced by an exhaustive and critical examination of new offences such as
causing severe bodily harm by acid attack, sexual harassment, voyeurism, stalking,
gang rape, and provisions for harsh punishment for repeat and habitual offenders.
Leading examples where the judiciary played an innovative and crucial role in
establishing new notions of criminal jurisprudence have been included with special
care. The inclusion of important cases from countries such as the United States of
America, the United Kingdom, Australia, Canada, France, Germany, South Africa,
Iran, Iraq, Saudi Arabia, Pakistan, Sri Lanka, Singapore, Hong Kong, Myanmar,
and Malaysia to inform readers of global trends and new horizons in criminal
justice is another feature of the book.

(A) LAW COMMISSION OF INDIA REPORTS:

i. The Fifth Law Commission of India's Forty-Second Report, 1971: In its complete
report on the Indian Penal Code, the Commission has proposed a number of structural and
substantive reforms to the law relating to the right to private defence.
ii. The Indian Penal Code (Amendment) Bill, 1978: Based on the Forty-Second Law
Commission's Report, it sought to amend or replace existing sections dealing with the right
to private body and property defence through its corresponding clauses, i.e. 32-37, which
were drafted along the lines recommended by the Law Commission.
iii. The Fourteenth Law Commission of India's One Hundred and Fifty-Sixth Report, published
in 1997, endorsed the Fifth Law Commission's suggested improvements as well as the 1978
bill's sections with minor changes.
 CHAPTER-II
HISTORICAL EVOLUTION OF THE CONCEPT OF
SELF- DEFENCE

2.1 INTRODUCTION

Private Defence Law can be traced back to the dawn of civilization, when everyone had the
right to defend his or her life and property. Communities have used their right to defend their
property and lives many times throughout history. In fact, it is not an exaggeration to say that
the two world wars that history has witnessed, as well as the ongoing conflicts between states
and between communities within states, are examples of communities exercising their right to
defend their land, water, and other natural resources from encroachment by the state or vested
interests in society. Every legal system in the world today understands and accepts that
everyone's life and property are valuable assets.

2.2 HISTORICAL EVOLUTION

It will be necessary to examine the developments that have occurred in this area in various
countries in order to evaluate the concept of self-defence. A realistic look back at the concept
of self-defence under Roman, Indian, English, American, and Australian law.

2.2.1 ROMAN LAW

The origins of the right of self-defence in England can be traced back to Roman law. Before
considering the evolution of the right of self-defence in English and American legal systems,
it is necessary to review changes in Roman law. Homicide was defined in Roman law as an
act that resulted in the death of a human being. There were two types of criminal homicide
that were not punishable: excusable and justifiable homicide. 42 Self-defence was classified as
homicide in the second category. Violence is undoubtedly legal in self-defence: 'Vim enim vi
defendere omnes leges emniaque jure permittunt' (a man incurs no guilt if he kills another's
slave who attacks him). In Justinian's law, no more force than was necessary to ward off the
looming danger was permissible, and aquiline culpability was imposed if the slave was seized.
The same was true if the slave arrived at night as a thief. The Twelve Tables, on the other
hand, approved unrestricted killing in such a scenario because they saw it as lawful self-
redress rather than self-defence. The premise that the degree of force used must, in any
instance, be proportionate to the magnitude of the threatening evil was not explicitly stated in
these terms, but was widely assumed based on a broad notion of "moderation." Self-Defence,
within this permissible limit, also covered the prompt retaking by force of property that had
been violently taken from one.43 When one's life or limb was endangered, an attack was not
an injury; any amount of force used to oppose the injury was legal provided it was reasonably
necessary. A man in danger of his life might kill his assailant with impunity, but he was not
justified if he could have caught the man and there was no need to kill him. When it came to
property defence, there was less leeway. Even a burglar could not be legally slain if the
homeowner could spare his life without putting his own life at danger. In the defence of
property, however, any less violence was justified.44 An injury was deemed to be aggravated
because of the following factors:
i. the nature of the act, such as when a man is wounded, scourged, or beaten with sticks;

42
Lord Mackenzie, Studies in Roman law, London, (1898), p. 415
43
Jolwicz, H.F., Roman Foundations of Modern Law, Oxford, (1957), p. 83
44
Hunter, William A., Introduction to Roman law, London, (1904), p.137
ii. the setting, such as when the assault occurs in a public place and the circumstances,
such as when the assault occurs in a public place.
iii. such as when youngsters strike parents or patrons;
iv. or of the portion injured, such as a blow to the eye. Exemplary damages were awarded
in these situations.
"Necessity appears in Roman texts as a defence in an action for damage, e.g. where a ship was
driven without fault into a position where the only hope of avoiding wreck was by cutting the
cables of another shop, or again, where it is necessary to pull down a building to prevent a fire
from destroying one's own house," writes Arnold D. McNair. It's unclear how far this extends
in our legal system, but it's evident that the same rules apply as when putting out a fire. It
might be argued that there is no culpa here; nothing is done beyond what a reasonable person
would do, and the situation is akin to Self-Defence, which is recognised in both legal systems.
However, in Roman law, self-defence was not a sufficient response to a third party who had
been harmed by my actions, and English law appears to be ambiguous on this point. Even
where a house was demolished, it does not appear in the texts that there was any way of
claiming recompense for the harm thus lawfully committed."45

As a result, it appears that the Self-Defence was classified as "justifiable homicide." In Self-
Defence, there was also a proportionality rule, although in circumstances of great threat to life
or limb, any amount of force could be employed to repel the injury. Compensation was paid
to the injured in some circumstances.

2.2.2 ENGLISH LAW

2.2.2.1 DURING ANCIENT PERIOD

It was common practise in early human history to exchange vengeance for a monetary
payment. When this procedure became established, disagreements about the amount of
compensation were presented to the tribe assembly for resolution. In the beginning, tribal
assemblies were convened on a regular basis among primitive people, and payment of
compensation was optional, but subsequently it became mandatory. 46 As a result, during the
Anglo-Saxon period, all homicides, whether severe or not, were viewed as matters to be
expiated by monetary payment, which was referred to as war. It was the monetary value
placed on the man's life. This was done according to a complex tariff that determined the cost
of various blows and wounds based on the victim's status. Aside from that, the King imposed
a form of fine known as "wite."47 There were some more significant offences against the King
and his peace that developed. They were referred to as "botleas" or "bootless." The wrongdoer
had no right to repent in such instances and was at the mercy of the king. 48 Most crimes were
later amended, but the most serious offences remained unreliable. As a result of the "wite"
becoming a source of royal treasury, the King's jurisdiction in this area was expanded. By
Norman times, the emendation system had become outdated. The principal sins in the Norman
Chronicles were great men's rebellions. When the rebel was apprehended, he was sentenced to
imprisonment or exile and dispersion. Mutilation was used to punish the insurgent peasants. If
the slayer was not brought to justice, the kinsfolk of the deceased Norman received a portion
of the murder finem that fell on the hundred. They received six out of forty-six points, with

45
Arnold D. McNair, Roman law and Common Law: A comparison in Outline, Cambridge, (1936), p. 291.
46
Leges Henrici was compiled as late as 1118, which expressed the Wessex rule that for every homicide,
whether intentional or accidental, the wergild must be paid to the family of the slain man. See Morelan, Roy The
law of Homicide Indianapolis, (1952), pp. 1-2
47
“Wite was the usual word for a penal fine payable to the King or to some other public authority. See Cecil
Turner, J.W., Kenny’s Outlines of Criminal Law, (1952), p. 8
48
The “bot” was a more general word, which included all types of compensation, see Pollock and Maitland,
History of English Law, Vol. I, (1898), p. 48
the remainder going to the King's treasury. This was referred to as "presentation of
Englishry."49 The law looked at the individual's words and actions in the beginning, but it
didn't look into the man's heart. It was the strict liability era. Man was held accountable for his
actions regardless of his motive. His mental state was not taken into account while
determining his criminal responsibility. It was forced upon us. In this age, having a guilty
thought was not a requirement for responsibility. Accidental harm and injury caused by
coercion in the name of self-defence were both causes of culpability. The defendant was not
exempt from liability under the old statute since he was acting in self-defence. As a result, the
criminal culpability was unrelated to the actor's wicked intent. "The idea of man shall not be
tried, for the devil himself knoweth not the thought of man," stated Chief Justice Brian, one of
the best mediaeval attorneys.50 As a result, the early legislation is formal and immoral. The
doer's aim was assumed to be reflected in his actions. Homicides committed in self-defence or
by chance were not free from culpability. They were held accountable to the actor. At least in
the circumstances of accident and self-defence, the rule of strict culpability was inhumane.
Even in the earliest era of civilization, the claim of self-defence should have been accepted as
an explanation or justification for killing. The oldest societies were not governed by the rule
of law, and anarchy most likely reigned supreme. As a result, every excellent ruler enacted
legislation that would eradicate all forms of self-help while maintaining social harmony and
stability. This could have been one of the initial reasons of so-called absolute liability. 51 There
was no distinction between tort and crime. The wrongdoer was responsible for a wide range
of injuries. The primary concept of early English law, according to Holds worth52, was that a
man acted at his danger, even if causing unintentional death or harm or acting in self-defence.
In the pre-concept period, a popular fundamental idea on which criminal culpability was
based was "A man acts at his peril." The principle appears to be rather broad. "A man acts at
his danger" generally means that anything a man does, if it injures someone else, will result in
the doer being charged with a crime. 53 "Law in its early days strives to make men answer for
all the damages of an obvious kind that their activities impose upon their fellows," Pollock
and Maitland agree.54 Another probable rationale for these strict regulations is the difficulty of
proving the presence or absence of the wrongdoer's purpose in the conduct of the crime. There
was no way to tell because there was no machinery to do so. As a result, the concept of
absolute liability that arose as a result of this reason is expressed in one of the Selden
Society's descriptions: "Ancient law could not debate the topic of purpose because it lacked
the apparatus with which to conduct inquiry." 55 When Winfield compares rulers to wild beasts
who eat "hurriedly, when and how they can, heedless of what the food is so long as it feeds
them for the moment, in fear of losing it or their own lives to any stronger animal," he offers
an apt illustration.56 He investigates Alfred's Laws, which empower a man to fight and kill in
self-defence, in defence of his lord, or in defence of a blood relative without having to pay
recompense."57 There was also a general right of self-defence against everyone save one's lord
and when murdering by accident or misfortune.58 In addition, there was a comprehensive list

49
Ibid. at 48
50
Emilio S. Binavinee, “The Ethical Foundations of Criminal Liability”, Fordham Law Review, Vol. 33, (1964-
65), p. 1,2
51
Brown, Bernard, “Self- Defence in Homicide-from strict liability to complete exculpation” , The Criminal Law
Review, (1958), p. 583
52
Windeyer to complete exculpation”, The Criminal Law Review, (1938), p. 17- 18
53
Brown, Bernard, “Self- Defence in Homicide-from strict liability to complete exculpation” , The Criminal Law
Review, (1958), p. 583
54
Leges Henrici was compiled as late as 1118, which expressed the Wessex rule that for every homicide,
whether intentional or accidental, the wergild must be paid to the family of the slain man. See Morelan, Roy The
law of Homicide Indianapolis, (1952), p. 1-2
55
Emilio S. Binavince, “The Ethical Foundations of Criminal Liability”, Fordham Law Review, Vol. 33, (1964-
65), p. 1, 2
56
Cecil Turner, J.W., Kenny's Outlines of Criminal Law, (1952), p.8
57
Pollock and Maitland, History of English Law, Vol. I, (1898), p.48
58
Ibid
 of objective facts that made a man amiable to its consequences, and it occasionally indicated
conditions in which he was not liable.59 Early rules, according to Winfield, reveal that there
were many cases where a man did not act at his danger. Theoretically, a man could be held
accountable for some, but not all, incidental harm. In fact, this draconian rule was rendered
practicable by judicial discretion over sanctions, which resulted in a vague distinction
between intention, inadvertence, and unavoidable accident, at best. Professor Winfield is
harshly critical of Holds worth, Pollock, and Maitland, who are adamant about the "myth of
absolute culpability," as he defines it. The Hammurabi code established maximum penalties
for many offences, but judges were given great leeway in this area. You must pay less if you
were not at fault.60 The liability was proportional to the severity of the error. As a result, there
were different levels of culpability. The truth appears to lay somewhere in the middle, but a
lack of sufficient evidence makes any such conclusion difficult to reach.

As a result, at the end of his essay, Winfield recommends using the word "strict liability"61
instead of "absolute liability" for criminal culpability, as was the case in early English law.
Not only did the ancient law take a stern stance on accidents and self-defence, but it also
introduced logic into the criminal justice system. The phrase 'mens rea' was first employed in
English law during the eleventh century, due to the influence of canon law.

A change from strict responsibility to increased emphasis on the mental element occurred in
the thirteenth century. Killing was justified in a few unusual circumstances during this time
period. Even if a person died by accident or in self-defence, he was still guilty of a crime and
needed a pardon from the king. A person who killed in self-defence or in defence of his
family was required to seek the King's pardon and was regarded guilty until he did so. This
could be due to the King's wish to maintain control over his domain and his suspicions of any
disruption to his tranquilly. The King generally used his power to excuse the offender in cases
involving accidents and self-defence, so reducing the severity of the trials.62 The patent rolls
of Henry III reveal that pardoning for excusable homicide done by misadventure, self-
defence, or when of unsound mind and not by a felony of malice aforethought was a prevalent
procedure in the thirteenth century.63 Self-defence was not a legal justification or explanation
for killing throughout the Middle Ages, but it was a foundation for forgiveness. A review of
ancient law and practise leads us to the following conclusion:
i. In self-defence cases, the defendant was not blameless. He was accused of some
wrongdoing and faced forfeiture of his property;
ii. The doctrine of mens rea had emerged during this time period. It was logical and
sensible, and it was the result of civilization's growth.
As a result, killings performed se defendendo began to be considered as excusable, and the
king began to pardon them.

2.2.2.2 DURING MEDIEVAL PERIOD

Even if the accused received a pardon, he forfeited his property for the crime committed in
self-defence during the mediaeval period. The assumption that an innocent self-defender was
a criminal could not be tolerated indefinitely by the community's moral sense. In such
circumstances, the jury was eventually allowed to return a not guilty decision. 64 Unlike the

59
Ibid
60
Goebel, Julius, Jr., Felony and Misdemeanor, Pennsylvania, (1976), p. 7-8
61
Wigmore John H., “Responsibility for Tortuous Acts Its history”, Harvard Law Review, Vol. VII, (1993- 94),
p. 321
62
Emilio S. Binavince, “The Ethical Foundations of Criminal Liability” , Fordham Law Review, Vol. 33, (1964-
65), p. 1,2
63
Morelan, Roy, The law of Homicide, Indianapolis, (1952), p. 10
64
Ames, James Barr, Lectures on Legal History, London, (1913), p. 436
ancient period (which lasted until the twelfth century), which was characterised by total
responsibility, the middle ages saw some reasoning enter the realm of criminality, thanks to
the development of the concept of mens rea. As a result, the King began to issue pardons in
cases of homicides committed as a result of misfortune and defence. There were no set laws in
this regard as long as the excuse of self-defence remained a matter of royal favour. Certain
principles, on the other hand, were ingrained in the theology from the start. One of them was
that there would have been no pardon if the killing had been unnecessary. The most
significant principle in the law of self-defence is still this premise. In terms of criminal
culpability, the principle of pardon in circumstances of killings committed se defendendo was
relevant. Perhaps the concept of pardon arose when the severity of the punishment for
homicides committed in self-defence or by accident reached a breaking point. In such
instances, the community's moral sense could not tolerate inhumane behaviour. As a result,
the King was approached and asked to use his prerogative to lessen the punishment. The act
of pardoning was wholly dependent on the King's discretion. It was merely a humanitarian
gesture. During this time, the rules governing criminal culpability were steadily evolving. The
following cases, which were resolved by the King's Court in the thirteenth century,
demonstrate this. The right to arrest and imprison anyone found doing wrong in parks and
preserves was a point of contention between the King and the magnates in 1236. At the time,
the King had pardoned an Earl of Ferrets forester who had killed a malefactor in self-defence,
but the King explicitly said that this was an act of grace, not justice.65 A woman was assaulted
by a man who was attempting to rape her. She killed him with a little knife. She took off. Her
father offered the justices forty shillings in exchange for their consent to let her return to the
peace. They were given the fee and were able to speak with the King. 66 A review of the
aforementioned examples reveals that in the thirteenth century, pardon was granted purely by
the King's favour. Furthermore, even if it was committed in the attempt to avoid a felony, a
homicide in self-defence was not justifiable. As a result, there was no standard procedure for
awarding forgiveness in this case. Although the accused was first pardoned for homicide
committed in self-defence or by accident, he was compelled to surrender his assets and
chattels under all conditions. An entry in the Northumberland Assize Rolls may substantiate
this. With the passage of time, the liberality with which pardons were granted grew. As a
result, an insane chaplain had broken into a house at night, according to a ruling. He died after
being smacked on the head by a servant of the house holder. The justices were able to set the
servant free. In his book, Braxton allows a man to kill a housebreaker if it is a necessary act of
self-defence, but he notes in his margin a case where the slayer was pardoned by the King. 67
The act of pardoning is a type of justification. The word excuse itself implies a censure of the
offender's wrongdoing. The essence of excuses, according to Blackstone, is "the want or
imperfection of the will." However, the doctrine of pardon is entirely based on the excuse
theory. prevailing in English criminal law during the thirteenth century The defences that the
killing was per information or se defendendo did not exist until the middle of the fourteenth
century, and even then, their effect was limited to the exercise of the royal prerogative of
forgiveness rather than the convocation itself. As the practise of giving pardons for accidental
or self-defence homicides became more common, the method for granting them automatically
required the jury to conclude that the death occurred se defendendo or per infortunium. The
rule on excusable homicides was founded on these defences as a result of the Gloucester
statute. Prior to the statute of Gloucester in 1278, it was common practise for clerks in the
Court of Chancery to issue the writ de odio et atia, which allowed an inquest to assess if a
homicide was done by chance or in any other way that was not a felony. The Sheriff or
Coroners, as well as any justices who happened to be in Eyre, conducted the inquest. A
pardon was awarded in any case if the jurors returned a positive verdict. The Statute of

65
Bracton, Note book, III (1216) No. 1084
66
Northumberland Assize Rolls, 85
67
Pollock and Mainland, History of English Law, Vol. II, (1898), p. 418
Gloucester (1278) is a foundational document in the formation of self-defence law. The writ
de odio et atia, which had previously been issued in similar circumstances, was abolished by
this statute. The act stated that misadventure or self-defence cases would no longer be
bailable. The jury was unable to reach a decision on whether to convict or acquit. If the King
so desired, he could pardon the party based on the report of the justices. 68 Essentially, the Act
regulated and modified the pardon process. Homicide committed by accident or in self-
defence was not justifiable. The indicted party had no right to an acquittal by the jury. He was
imprisoned again and must rely on the King's generosity for a pardon. Furthermore, despite
receiving a pardon, he forfeited his property as a result of the crime. Pardons for killing in
self-defence were commonplace after that. Following that, juries were obligated to conclude
specifically that such was the case in cases of homicide when the defence was misadventure
or self-defence, upon which the King was obligated to award him pardon. Pardons for
misadventure or self-defence were becoming a mere formality by the end of the fourteenth
century, and the circumstances of their commission were recognised as giving grounds for the
issue of a pardon of course. The pardon was, of course, accompanied by the seizure of the
accused property. The pardon, of course, became a simple formality as time passed. The
nature of pardon was issued and signed by the chancellor in the name of the King. As a result,
it appears that the chancellor began issuing charters of pardon in cases of self-defence without
consulting the King. The practise of returning acquittals in such situations was established by
the Court during the fifteenth and early sixteenth century. It is also mentioned in the Year
Books of Edward IV and Henry VII's reigns that a person could claim Self-Defence or
misadventure to avoid liability for a felony. As a result, it is clear that there was a misuse of
pardon throughout this time. In 1532, a statute69 was enacted as a result. "A guy who kills a
thief in self-defence shall not forfeit his goods," the act reads. It went on to say that in the
future, no forfeiture should be imposed in such cases, and that those who kill should be
entitled to a simple acquittal. This provision clearly establishes that killing in self-defence
results in the confiscation of property. Self-defence was not a legal justification or explanation
for killing in the early common law of England, but it was a foundation for pardon, according
to a study of the history of law throughout the mediaeval period. There was no consistent
practise in the issuing of pardons. However, the overuse of pardon was felt in the fifteenth and
early sixteenth centuries. The official pardon in cases of required Self-Defence was abolished
by statute in 1532.

2.2.2.3 DURING MODERN VIEW

Finally, we've arrived to a position where liability in such a case is assessed by taking into
account all of the surrounding facts, a basis of fault, and a reasonable man's reaction.70
Instead, in current times, there is a presumption that homicides committed in self-defence do
not involve mens rea, and as a result, it has become a legal justification. The forfeitures that
accompanied the pardon were likewise eliminated in 1828, due to the legal justification of
self-defence under modern legal theory. As a result, incidents of self-defence that were
excused in the Middle Ages are now excused in current times. As a result, the defendant in
such circumstances is no longer held criminally liable. If committed se defendendo, it is a
justifiable homicide. This is in accordance with the European Convention on Human Rights'
Article 2 stipulations. "Everyone's right to life shall be protected by law, and deprivation of
life shall not be regarded as inflicted in contravention of this article when it results from the
use of force that is no more than absolutely necessary in the defence of any person against
unlawful violence," says the relevant article.

68
Stephen, Sir J.F., A History of the Criminal Law of England, Vol. III, London, (1883), p. 36-37
69
24 Henry VIII C-5
70
Miller, J., Criminal Law, St. Paul, (1934), p. 199
2.2.2 AMERICAN LAW

The law on this subject in America is based on English common law. The various state
statutes in the United States of America, like English law, distinguish between justifiable and
excusable homicide in self-defence. A justifiable homicide occurs when someone, without
any fault on his side, is assaulted by another in such a way that he has a reasonable fear of
death or serious physical injury and kills in self-defence, thinking that such killing is
necessary to defend him. As a result, even in the situation of great bodily injury, the right to
kill exists. However, the following are the key elements:
i. The killer's blamelessness,
ii. a reasonable belief in the existence of an impending threat, and
iii. the killing's necessity. "Self-Defence without flaw" or "perfect Self-Defence" are
terms used to describe such a right of self-defence.
Excusable homicide in self-defence occurs when one party, fearing reasonably impending
death or serious physical injury, kills the other, thinking that such killing is required to protect
himself. This is similar to the common law's se defendendo. In this scenario, the law presumes
that both parties were at fault in some way. Under old English law, the death penalty was
applied for such homicides because of the presence of this flaw in the perpetrator, and later,
the penalty of forfeiture of possessions was imposed. In American law, such homicide in self-
defence is referred to as "imperfect self-defence." There would be no right to self-defence if a
person creates an opportunity to kill another. One cannot instigate a disagreement and then
use the quarrel as a reason to murder another.71 However, simple words, no matter how
insulting, would not deprive one of the right to self-defence since such comments would not
be provocative enough. 72 When the defence of self-defence is invoked, the question of who
was the aggressor becomes essential, and apportioning guilt in circumstances of chance is not
always easy. medley - In most cases, the aggressor is someone who gives up his right to self-
defence by engaging in unlawful conduct that are reasonably meant to produce or lead to
lethal struggle or to give another a reasonable fear of immediate danger to his life. 73 It is not
required for the person who strikes first to be the aggressor.74 If a person purposefully
instigated an encounter with the intent or expectation that it would escalate into a lethal
conflict and result in a death, that person is the aggressor and cannot claim self-defence.
However, if such a person, while engaged in legitimate fighting, abandons it or withdraws
from it, indicating to the other, by his words or conduct, his intention of not continuing the
battle or retreating from it, his right of Self-Defence will be resurrected. If the former
aggressor, who has withdrawn, is pursued after the withdrawal, he may be justified in killing
to rescue himself. 75 However, the withdrawal that restores the right to self-defence must be
supported by proof.76 There is no renewal of the right to Self-Defence if the aggressor has
beaten up the other to the point where he is incapable of understanding or recognising the
retreat.77 The expressions "great bodily injury" and "great personal injury" are used to
describe the extension of the right of Private Defence to apprehension of physical injury less
than death. Wherever such a term appears, it should be given its usual interpretation.78 It is
now a well-established legal principle that the right of Private Defence does not apply only in
cases where death is feared, but also in cases where the danger to be resisted is serious bodily
harm of a permanent nature,79 so that even if the statute does not mention bodily harm as one

71
Shack v. State, 236 Ala.667, State v. Fettovic, 110 Conn. 303
72
People v. Curtis, 18 N.W. 385
73
Scoggins v. Stage, 120 Ala. 369
74
Myers v. State, 62 Ala. 599
75
Padgett v. State, 40 Flo. 451
76
State v. Health, 237 M.O. 255
77
People v. Button, 106 Cal. 628
78
Rogers v. State, 60 Ark. 70
79
Pond v. People, 8 Mich. 150
of the bases for the right of Self-Defence, it will be assumed that exercising the right in
defence to danger of serious bodily harm is permanent. There have been situations where
American courts have decided that a doctrine of retreat applies regardless of whether the case
falls under excusable or justifiable homicide in self-defence80. 81"Rationally, the failure to
withdraw is a circumstance to be examined alongside all the others in order to assess whether
the defendant went further than he was warranted in doing, not a categorical proof of guilt,"
said Mr. Justice Holmes of the United States Supreme Court. Even if historical blunders
contributed to its development, the law has tended toward standards that are consistent with
human nature. Many respected writers agree that if a man rationally believes he is in
imminent danger of death or serious bodily harm from his adversary, he may stand his
ground, and that if he kills him, he has not gone beyond the limits of justifiable self-defence.
This Court has reached that conclusion. In the presence of an elevated knife, detached
reflection is impossible to achieve."82 As a result, there is no one-size-fits-all approach to the
retreat rule, and its application is contingent on the circumstances of each situation. To
summarise, in the ancient period, there was absolute culpability for homicide done se
defendendo. It became excusable during the Middle Ages, and pardons were awarded. In
today's society, killing committed in self-defence is justified, and the defendant has no
responsibility as a result.

2.2.4 AUSTRALIAN LAW

Self-Defence is a legal defence to a charge of causing harm or death in the defence of a

person or, to a limited extent, property, or a partial defence to murder if the degree of force
employed was excessive in Australia's criminal code.

Justice Mason articulated six principles on the law of self-defence in murder trials in Viro v.
Queen,.83 As a result, a full acquittal is obtained if the jury determines that the accused
reasonably believed they were in danger of death or serious bodily damage, and that the force
employed was proportionate to the apparent danger. The defence of self-defence is one that
any jury can and will understand. It's an easy concept to grasp. It does not necessitate any
complex legal reasoning. It doesn't require any specific phrases to explain it. There is no need
to use a formula in relation to it. It can be understood with only common sense. It is both legal
and common sense for a man who is attacked to be able to defend himself. It is both good law
and good sense that he may do what is reasonably necessary, but only that. However,
everything will be dependent on the specific facts and circumstances. A jury can choose
between these options. In some circumstances, taking a basic avoidance step may be the only
rational and obvious option. Some attacks have the potential to be serious and dangerous.
Others might not. If a very minor attack occurs, it would be irrational to allow a retaliatory
action that was completely out of proportion to the situation's needs. If an attack is serious
enough to put someone in danger right away, quick defensive action may be required. If
someone is in immediate danger, he may need to take immediate action to avert the threat. If
the attack is ended and there is no longer any danger, the use of force may be motivated by
vengeance, punishment, or settling an old score, or it may be pure aggression. There may no
longer be any connection to the need for defence. A jury's good judgement will be the arbiter
in all of these concerns. There are no specific terms or phrases that must be used or adopted in
a summing up. All that is required is a clear exposition of the concept of necessary self-
defence in respect to the facts of the case. There will obviously be no need for defence if there
has been no offence. If there has been an attack and defence is reasonable, it will be

80
Wallace v. U.S., 162 U.S. 406; Row v. U.S ., 164 U.S. 540
81
Begham v. State, 203 Ala. 163. Brewer v. State, 160 Ala. 66; State v. Donnelly, 69, IOWA 705
82
Brown v. U.S., (1921) 256 US 335
83
http://www.austlii.edu.au/au/cases/cth/HCA/1978/9.html last accessed on 30 July, 2014
recognised that a person defending himself cannot weigh the exact measure of his essential
defensive action to a fine point. If a jury believed that a person attacked had only done what
he honestly instinctively thought was required at a moment of unexpected suffering that
would be the most powerful proof that only reasonable defensive action had been used. A jury
will be taught that self-defence defences will only fall if the prosecution can establish beyond
a reasonable doubt that what the accused did was not in self-defence."84

In R v. Burgess; R v. Saunders (2005) NSWCCA 52 85, the New South Wales Court of
Criminal Appeal decided that the idea of self-defence only applies where the accused acts are
conducted directly against the person endangering the accused or another's life or property. R
v McKay was the first case to recognise the defence under common law (1957). The Victorian
legislature passed new self-defence laws in November 2005, in response to proposals from the
Victorian Law Reform Commission. A new offence of defensive homicide was introduced
among them: if the accused belief in the need for the force employed in Self-Defence was
unjustified, he or she could be convicted of a lesser crime than murder. Defensive homicide,
on the other hand, was abolished in November 2014.

2.2.5 INDIAN LAW

There is hardly any branch of criminal law in which public opinion has shifted more than that
which seeks to define an accused defendant's criminal liability. As a result, a retrospective of
the law of private defence is an essential and relevant study that should be conducted before
any discussion of the current state of the law of private defence can be considered realistic. If
we go back far enough in history, we can see that homicide was permitted in the first Hindu
Law, promulgated by Manu 86, when life was in peril. It was also permissible to use arms in
self-defence. However, the right was granted solely for the purpose of avoiding injury. It
couldn't be utilised as a means of retaliation. If the assailant had not struck, he could not have
been apprehended or killed. 87 When Muslims conquered India and imposed their rules on both
Muslims and Hindus, they included the right of self-defence in their Criminal Code. Men who
killed another in self-defence were not punished by the King. Retaliation, on the other hand,
was permitted. Until the arrival of the British Empire, Hindu and Mohammedan law provided
for the right of self-defence. During the first several years of their administration, the British
did not interfere with our country's criminal law. Warren Hastings, on the other hand,
interfered with the law for the first time in 1772 when he issued Regulations. The British
discovered that Mohammedan law was not accomplishing the intended goal in some
locations. As a result, they produced regulations that subsequently supplanted both Hindu and
Muslim criminal law. The Britishers handled justice through several Regulations prior to the
drafting of the Indian Penal Code. The English common law was used to create these
regulations. The Presidencies of Calcutta, Madras, and Bombay were later given legislative
powers. The growth of a diverse system of laws, both substantive and procedural, was caused
by the expansion of legislative powers. The administration of justice was hampered by the
contradictory statutes. As a result, he was appointed to the Governor General's Council as a
Law Member. The statute of 1833 established a Law Commission to develop the Indian Penal
Code. While drafting the Indian Penal Code, the Commissioners included the right to private
defence among other things. As a result, sections 96 to 106 of the Indian Penal Code, 1860,
were enacted to establish the law of self-defence. The Indian Self-Defence Law is more
expansive and thorough than the English Law. The Indian law on the matter differed from
English law, which the Commission justified.

84
http://www.austlii.edu.au/au/cases/cth/HCA/1978/9.html, last accessed on 30 July, 2014
85
http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2005/52.html, last accessed on 30 July, 2014
86
Manu VIII, Verses 348 and 349
87
Katyayana, Smritichandrika, p. 729
The Muhammadan Criminal Law was amended several times during the early British reign.
The Digest of Criminal Law of Beaufort88 and Harrington's examination of Bengal
regulations89 provide insight into the situation at the time. However, on December 31, 1600,
Queen Elizabeth issued the East India Company a charter granting it exclusive trading rights
between British India and other countries, including the United Kingdom. This trading
expedition grew into political power during the next one hundred and fifty years, thanks to a
series of charters. The East India Company's charter of 1600 gave it the authority to govern its
activities in general. The company's charter of 1623 gave it the authority to punish its
personnel for crimes committed on land or at sea. The company's powers were further
expanded by the charter of 1661, which included the administration of criminal justice in the
settlements. The charter of 1668 may best depict the company's transformation from a trade
concern to a territorial power. The business may even raise armed units under the 1683
charter.90 After the British took over the task of administering criminal justice in the country
in terms of 'diwani' rights, they discovered the Muslim law of crimes to be absurd, illogical,
uncivilised, and devoid of any rationale in terms of classification of crimes and punishment
imposed, forcing them to make changes to bring it into line with civilised nations. The
Muslim Criminal Law was significantly altered by Lord Cornwallis. He did not, however,
touch the homicide that he was defending. Because no amendments were made in this field or
in criminal law after that, the Muslim law of homicide remained in effect until the Indian
Penal Code was enacted. The Indian Penal Code of 1860 was implemented across the country,
regardless of caste, creed, or colour. It governed, among other things, the law of self-defence.
In India, the right to self-defence is enshrined in the Indian Penal Code's chapter on general
exceptions. It was created as a safeguard against criminal culpability. The law relating to the
right of self-defence and its numerous components, such as its initiation, duration, and extent,
is found in sections 96 to 106 of the Indian penal code. These Sections have also dictated the
limitations imposed on the exercise of the right of self-defence. The legislation relating to
self-defence has remained unchanged since the Indian Penal Code was enacted in 1860. For
more than a century, the courts have been interpreting the relevant elements of the law of self-
defence. Various societal standards arose and perished during this time. To address the desire
for new societal ideals, the judiciary has attempted to defend the right of Private Defence
within the legal framework of the Indian Penal Code. The Indian government established a
Law Commission to study the various articles of the Indian Penal Code, including the law of
self-defence, after recognising the need for legislative adjustments in several areas. In its 42nd
Report, the Law Commission examined the law relating to self-defence in depth and offered
various recommendations for legislative revisions, which have been addressed in the proper
locations. As can be seen from the preceding discussion, ancient India's idea of the right to
private defence was exceedingly broad and detailed. It even encompassed false accusations,
slander, and the like. During the mediaeval period, the broad idea of private defence was
eclipsed by the importation of Muslim criminal jurisprudence, which authorised it only in
limited circumstances. The Muslim law of Private Defence was preserved by the British in
India until the Indian Penal Code was published in 1861. The creator of the Indian Penal
Code, Lord Macaulay, provided a fitting legislation of Private Defence, which was needed by
people in the prevailing code-economic conditions of the country.

2.3 OBJECT AND SCOPE OF SELF- DEFENCE

2.3.1 OBJECT

88
Beauforst, Digest of Criminal Law for The Presidency of Fort William
89
Harrington’s Analysis of Bengal Regulations, Vol. I, p. 223
90
Srivastava, Dr. S.C., Industrial Disputes and Labour Management Relations in India, (1984), p. 193
In the following words, the architects of the Indian Penal Code have nicely defined the
purpose of the rules relating to Private Defence:

"It may be thought that we have given too much latitude to the exercise of this right; and we
believe that if we had been framing laws for a bold and high-spirited people, accustomed to
taking the law into their own hands and going beyond the line of moderation in repelling
injury, additional restrictions would have been appropriate." The danger is on the other side in
this country; the people are too weak to aid themselves; the patience with which they accept
the horrible depredations of gang robbers, as well as trespass and harm committed in the most
flagrant fashion by bands of ruffians, is one of the most remarkable. The depressing signs that
the status of India's society presents to us In these conditions, we would prefer to arouse and
foster a manly spirit among the people rather than impose additional restrictions on the
exercise of the right to self-defence."91

2.3.2 SCOPE

The right includes not just defending one's own body against any offence involving the human
body, but also defending the body of another person. The right also includes the protection of
one's or another's property from certain defined crimes, such as theft, robbery, mischief, and
criminal trespass. However, an accused person cannot claim the right to private defence if the
evidence indicates that the parties engaged in a free fight and it was impossible to distinguish
who was the initial aggressor, causing the other party to employ force against the aggressor in
order to defend themselves. 92

In India, the following principles emerge in terms of the scope of the right to self-defence:93

i. Self-preservation is a basic human instinct that is recognised by all civilised countries'

criminal jurisprudence. Within certain reasonable bounds, all free, democratic, and
civilised countries acknowledge the right to self-defence.

ii. The right to private defence is only available to someone who is unexpectedly faced
with the need to avert an impending threat, not with the need to create oneself.

iii. The right to self-defence can be invoked simply by having a realistic fear of harm. To
put it another way, an actual commission of the offence is not required to give rise to
the right of private defence. It is sufficient if the accused suspects that such an offence
is being considered and would be committed if the right to private defence is not
exercised.

iv. The right to a private defence begins as soon as a reasonable suspicion develops and
continues for the duration of the suspicion.

v. Expecting a person under attack to modulate his defence step by step with arithmetical
precision is impractical.

vi. In a private defence, the accused use of force should not be entirely excessive or
considerably larger than is necessary to protect his or her person or property.

91
Draft Penal Code, note, p.110
92
Bhagwan Sahai and anothers v. State of Rajasthan, Crl. A. No. 416 of 2016 @ SLP (Crl.) 2301 of 2016
93
Madhu Gupta v. State of NCT of Delhi, CRLA 357 & 514 of 2017, Del. H.C.
vii. It is widely established that even if the accused does not plead self-defence, the court
may consider such a plea if the evidence on record supports it.

viii. The accused does not have to prove beyond a reasonable doubt that the right to a
private defence exists.

ix. Only when an unlawful or unjust act is an offence does the Penal Code grant the right
of private defence.

x. When an assault is attempted or directly threatened, a person who is in imminent and

reasonable risk of losing his or her life or limb may, in self-defence, inflict any harm,
including death, on his or her offender.

2.4 JURISPRUDENTIAL ASPECT OF THE RIGHT OF SELF-

DEFENCE

There are three main theories 94 in regard to the basis of right of Self- Defence. They are-
(i) Social contract theory ;
(ii) Retributive theory and
(iii) Utilitarian theory.

2.4.1 SOCIAL CONTRACT THEORY

According to this theory, the state emerges from a social contract. The individual relinquishes
his rights and gives them to the government. He promises to follow out the king's orders.
Individuals are promised safety by the state in exchange. When men sign into contracts, they
maintain the right to defend themselves in situations where the government cannot assist
them. In the event that State assistance is unavailable, the individual is authorised to defend
himself and his property. Only those powers have been delegated to the state by individuals.
They keep the rest for themselves. This is Locke's and Kant's point of view. 95 This school of
thinking is supported by a large number of other thinkers.

As a result, it is clear that, on this argument, individuals maintain their right to self-defence in
the absence of state assistance. For practical purposes, this theory is particularly important,
because the exercise of the right of private defence is still restricted in current times.

If this hypothesis is right, then when the state fails to protect individuals, they can defend
themselves. It is undeniable that the foundation of the state is based on the social compact,
and that the right to self-defence was particularly reserved by the people since it is based on
the natural instincts of living organisms.

2.4.2 RETRIBUTIVE THEROY

Self-defence, according to this theory, is a retaliatory act.96 It is founded on the concept of

vengeance. To put it another way, the right to private defence is similar to the retributive
notion of retribution, which is based on the adage "eye for eye and tooth for tooth." Hegel was
the one who put forward this thesis. It was then adopted by a number of other thinkers. On
moral grounds, all wrongs must be opposed. Refusing to fight or succumb to wrong is a sin in
94
Francis Wharton, “Disputed questions of criminal law-Self- Defence-its Basis”, southern Law review, Vol. V.
(1879-80), P.366
95
Id. at p.367
96
Id. at p. 368
and of itself. True, the state may set restrictions on an individual's right, but it still exists
within those constraints.

The right to self-defence, according to this school of thinking, is not founded on a contract,
but rather on a moral duty and a right. Life is a priceless gift from God. As a result, everyone
has a moral obligation to safeguard it. What right does one have to take another's life if he
can't give it to them? As a result, the assailant loses his right to life, while the defendant, who
is innocent, has the absolute right to defend his life against all forms of aggression.

This right of self-defence idea has been attacked for being essentially lynch law, since it
would justify a great deal of wrongdoing by volunteer crusaders in the name of this right.

2.4.3 UTILITARIAN THEORY

Thinkers from the utilitarian and materialistic schools of thinking supported this view. This
school's protagonists consider utility rather than responsibility to be the proper springboard
for action. According to this theory, the State is the law-giver, and all law emanates solely
from the State. Because the right to self-defence is justified on the basis of preventing crime,
this doctrine is often known as "prevention." The primary goal of law is to promote the
common good and the individual's well-being. The state also commits to upholding and
protecting the rule of law. This is accomplished through a variety of organisations. 97

97
Ibid. at p. 369
 CHAPTER III
RIGHT OF PRIVATE DEFENCE OF BODY IN INDIA

3.1 INTRODUCTION

A simple reasonable perception is sufficient to invoke the right of self-defence, and no actual
conduct of the offence is required to invoke the right of private defence. It is sufficient if the
appellant has reason to believe that such an offence is being considered and would be
committed if the right to private defence is not exercised.98 When a threat to a person or
property is immediate, the right of self-defence arises and remains available as long as the
threat exists. Right of Self-Defence can be used as a shield to deter an unjustified attack on a
person or property, but it cannot be used to provoke the attack, implying that it should be used
as a deterrent rather than a means of attack. When a specific claim of self-defence is made, the
burden of proof falls on the person making the claim. Such a right would only apply if an
obvious risk to person or property was imminent, and if he went beyond that, the act would be
considered an act of hostility. A person's right under this title endures unless the threat or
apprehension of being in danger continues, according to codified law. Self-Defence,
sometimes known as private defence, is a countermeasure that entails defending oneself, one's
property, or another's well-being from harm. Many jurisdictions recognise the right to self-
defence as a legal basis for the use of force in times of danger, but the interpretation varies
widely. Almost all nations of the world have granted this right, which is embodied in the
Indian Penal Code, 1860, to protect and promote equality and justice in society, with a view to
strengthening the wellbeing of the people by allowing them to use their rational minds in
difficult situations to protect their lives and property from assault by a transgressor, subject to
some restrictions imposed by the law.

It is not required for the accused to plead that he acted in self-defence in so many words. It is
open to the court to consider such a plea if the circumstances suggest that the right to private
defence was legally exercised. 99

To assert a right of private defence that includes voluntary causing of death, the accused must
show that there were circumstances that gave rise to reasonable grounds for believing that he
would suffer death or grievous harm. The law of private defence does not require the
individual who has been assaulted or is under suspicion of being assaulted to flee for their
own protection. It entitles him to defend himself and law gives him right of private defence.
There is no right of private defence where there is no apprehension of danger. Necessity of
averting and impending danger must be present, real or apparent.100

3.2 THINGS DONE IN PRIVATE DEFENCE

The law gives everyone the right to defend his or her body or property, or the body or
property of another person, against unlawful violence, subject to certain limitations. He can
use force to protect his right or prevent it from being violated. It is a man's natural right.
However, the type and amount of force used are strictly limited by law. The right of private
defence refers to the use of force to protect one's property and person. The right to self-
defence cannot be used to inflict harm on another as a form of retaliation. To put it another
way, the right to self-defence can be utilised as a shield rather than a sword. In the exercise of
Private Defence, the law recognises a number of scenarios in which the use of force is
98
Suresh Singhal v. State (Delhi Administration), (SC) 2017(2) SCC 737
99
Madhu Gupta & others v. State of NCT of Delhi,(Del. H.C.), CRL.A. 357 and 514 of 2017
100
Raj Singh v. State of Haryana (SC) 2015 AIR (SCW) 2941
justified or not. Indeed, in some situations, deadly force is permitted if the defendant
reasonably feels he is in imminent risk of death or serious physical injury. In such
circumstances, the assailant's death became required to protect people or property. To put it
another way, the use of lethal force could only be allowed if the person or property being
assaulted is reasonably believed to be in severe risk. In general, the aggressor creates a
scenario in which the assailant has no choice but to use force to ward off the danger in order
to protect themselves or their property.

The term "right of private defence" is not defined under Section 96 of the IPC. It simply
means that nothing done in the exercise of such a right is an offence. Whether a person
behaved in the exercise of his or her right to private defence in a given set of circumstances is
an issue of fact that must be established based on the facts and circumstances of each instance.
There is no abstract test that can be used to answer such a question. The Court must consider
all of the surrounding circumstances before deciding this factual issue. It is not required for
the accused to plead that he acted in self-defence in so many words. It is open to the Court to
consider such a plea if the circumstances suggest that the right to private defence was legally
exercised. Though the same is accessible to be evaluated from the information on record, the
Court can examine it even if the accused has not taken it. The burden of proof is on the
accused under Section 105 of the Indian Evidence Act, 1872, which establishes the plea of
self-defence, and the Court cannot presume the truth of the plea of self-defence in the absence
of proof. The absence of such conditions will be presumed by the Court. It is the
responsibility of the accused to put necessary evidence on the record, either by adducing
affirmative evidence or by extracting necessary information from the prosecution's witnesses.
An accused who pleads to the right to private defence is not required to summon witnesses;
instead, he can establish his plea by referring to events that occur during the prosecution's
evidence. In such a scenario, the issue would be determining the genuine impact of the
prosecution evidence rather than whether or not the accused had discharged any burden.
When the right to a private defence is invoked, the defence must be a reasonable and probable
version that convinces the Court that the injury caused by the accused was required for either
preventing the attack or preventing additional reasonable apprehension on the accused part.
The accused bears the burden of establishing the plea of self-defence, which is satisfied by
demonstrating a preponderance of the evidence in favour of that plea based on the evidence
on file. 101

3.2.2 NECESSITY OF THE RIGHT OF PRIVATE DEFENCE

Of sure, the right to self-defence is essential. It is, however, not a necessary evil. According to
Pollock102:

"It would be a great error to see Self-Defence as a necessary evil imposed by the law as a
result of men's hard hearts. The right is the only one that is both just and flawless. Every
organism with methods of defence has the impulse to "repeal force by force." When the
originating force is illegal, man's natural right or authority is permitted, nay, approved by the
law. Sudden and resolute opposition to unjustified attack is not only a matter of toleration; in
many situations, it is a moral obligation."

Bentham103, emphasising the importance of this privilege, says:

101
Brij Lal v. State of Rajasthan, (SC) 2016 AIR (SC) 3875
102
Pollock, Law of Torts, Chapter IV, Section 12
103
Bentham, Principles of the Penal Code, p. 269
"This right to self-defence is vitally essential." The vigilance of magistrates will never be able
to compensate for the personal vigilance of each individual. The fear of the sum total of
individual opposition can never control wicked persons as effectively as the fear of the law. If
you take away this right, you become an accomplice to all terrible men."

3.2.2.1 RIGHT TO PRIVATE DEFENCE IN LIGHT OF ARTICLE 21 OF

THE CONSTITUTION OF INDIA

Next to his own liberty, a man's life is the most valuable thing he has. As a result, every man,
woman, and kid in any civilised community is guaranteed the right to life and liberty. Our
Constitution recognises this as a basic right, which is codified in Article 21. Indeed, the
Constitution has placed these two rights on such a high pedestal that Article 21 is written in
such a way that it is a directive or injunction to all and all, including the State, that no one
shall be deprived of his life or personal liberty except in accordance with legal procedures.104
Article 21 states that no one may be deprived of his or her life or personal liberty until he or
she has followed the legal procedure. The Supreme Court ruled that reasonableness, which is
a legal and philosophical requirement for equality or non-arbitrariness, penetrates. In order to
be in compliance with Article 14, Constitution, Article 14 must pass the test of
reasonableness, much as the brooding omnipresence and procedure anticipated by Article
21.105 The prohibition against arbitrarily depriving a person of his life or personal liberty is, in
many ways, the mother of the legislation relating to the right of Private Defence. Article 21
would have been the most heinous infringement if the right to private defence had not existed,
because the state and everyone is under a constitutional obligation to arbitrarily take another's
life or personal liberty.

3.2.3 MEANING OF THE RIGHT OF PRIVATE DEFENCE

According to Mahandi v. Emperor,106 the law does not force a law-abiding citizen to act like a
rank coward on any given circumstance. The right to self-defence, as defined in sections 96
and 97 of the Indian Penal Code, 1980, contemplates that if a man is attacked, he will be
justified in the eyes of the law if he stands his ground and attacks back, provided that the
injury he inflicts in Self-Defence is not out of all proportion to the injury he was threatened
with. The Indian Penal Code, 1980, Section 96, is only a declaration of a right in the abstract.
It states that an act performed in the exercise of one's right to "Private Defence" is not illegal.
It neither defines nor describes that right's scope or restrictions. This will be dealt with in later
parts. However, the right to private defence is deemed to be a justification for a crime in this
case. However, the offence must be complete in order to be justified; otherwise, there is no
right of private action against an act that is not an infraction under the Indian Penal Code.107
As a result, according to Gorie Sankar v. Sultan, 108 an act performed in the exercise of the
right of Private Defence is not an offence and does not confer any right of Private Defence in
return.

"You cannot claim the right of Private Defence if you did not conduct an attack, nor can you
claim such a right if you purposefully join a riot and find yourself attacked and your life is in
danger," says the court.109 "When a group of men is determined to vindicate their rights or
assumed rights by unlawful force, and they engage in a flight with men who are equally

104
Inderjit Barua v. Stateof Assam, AIR (1983) Del 513,517
105
Maneka Gandhi v. Union of India, AIR (1978) SC 597
106
51 CrLJ 654 (Lah.)
107
Ganouri Lal Das v. Queen-Empress, ILR 16 Cal. 206, p. 218
108
AIR, 1917 LB.12 (1)
109
Shamshul Huda, Principles of law of crimes in British India, p. 385
determined to avenge their rights or supposed rights by unlawful force, there is no issue of
self-defence." Neither side is attempting to protect itself, but both are attempting to gain the
upper hand on the other.110 Inflicting blows in reprisal is not an exercise of the right to private
defence.111 It is common knowledge that the right to private defence includes the right to bear
arms.
The right to defend is a defensive right. There is no right of Private Defence where there is no
perception of risk, such as where the quarrel had ended before the accused stabbed the
deceased. 112 The right of Private Defence is only applicable to someone who is abruptly
presented with urgent danger. Not because of his creation, but because of the necessity of
averting an imminent danger. The requirement must be present, whether it is genuine or
apparent.113

3.2.3.1 USE OF ENGLISH PRECEDENT

In India, the right to private defence of person and property is codified in Sections 96 to 106
of the penal code, and courts do not believe it is permissible to interpret these sections based
on principles regulating the right to self-defence under English common law. The provisions
are self-contained, and the terms used in the sections must be examined in order to determine
the scope and limits of the right.114

3.2.3.2 RIGHT OF PRIVATE DEFENCE: WHEN A COMPLETE

DEFENCE

The right to private defence can only be used to stop unlawful aggression, not to retaliate.
This is a defence right, not a right of retaliation or retaliation. 115 The right to Private Defence
will totally acquit the accused of all culpability, even if he has voluntarily caused the death of
another person, in the following circumstances:
If the right is exercised in the Private Defence of the accused body, it provides a complete
defence:
(a) If the deceased was the accused actual assailant, and
(b) If the offence committed by the deceased, who prompted the exercise of the right, was one
of the seven descriptions enumerated in Section 100 of the Penal Code.
(ii) If the right is exercised in the Private Defence of the accused property, it also provides a
complete defence if the offence committed, or attempted to commit, by the dead that
prompted the exercise of the right was one of the four types listed in Section 103 of the Penal
Code.
If an act is a legitimate act of self-defence, it is not an offence in the eyes of the law, as
provided by section 96 of the I.P.C., and there is little reason to consider whether it is an act
covered by any provision relating to joint liability under sections 34 and 35 of the I.P.C., or
vicarious liability under section 149 of the I.P.C. However, if it is claimed that the use of the
right to private defence went beyond the legal limitations, the court must assess whether that
right was exceeded and, if so, determine the accused individual liability based on the evidence
presented. Where, on the other hand, the witnesses assign only one injury to two people but
there is no proof of common intent, section 34 I.P.C. cannot be invoked, and both become
entitled to the benefit of the doubt. As a result, no individual liability may be imposed on any
of the appellants for head injury, even if it was clearly beyond the scope of the legal exercise

110
Bhairoo Singh v. Emperor, AIR (1935) Nag. 141
111
Harbans Singh v. Emperor, AIR (1947) Lah.37
112
Nga Chit Tin v. King, AIR (1939) Rang. 225, p.239
113
Laxman Sahu v. Stateof Orissa, 1988 CrLJ. 188, p.189
114
Bansa Mudi v. State, AIR (1959) Pat.22, p. 28
115
Rajesh Kumar v. Dharam Vir, CrLJ 2242,p. 2247 (SC)
of the right to defend one's person or property. It is not sufficient for the accused to simply
prove that the right to Private Defence has begun in order to establish the right. He also needs
to show that the right had not expired.

3.2.3.3 RIGHT OF PRIVATE DEFENCE AND SECTION 34 OF I.P.C.

Common purpose to commit an offence and involvement by all the accused in doing act or
acts in furtherance of that common intention are required for the application of section 34 of
the Indian Penal Code. If these two elements are proven, all of the accused will be found
guilty of the crime. For example, if two or more people had a common purpose to commit
murder and they participated in the acts carried out in pursuit of that common intention, they
will all be found guilty of murder. In that case, Section 96, I.P.C. of the code states that
nothing done in the exercise of the right to Private Defence constitutes an offence. Though all
the accused were accountable for murdering a person by undertaking an act or acts in support
of the common goal, they would not be liable for the said act or acts if they possessed the
right of Private Defence to willingly cause the death of that person. As a result, common
intention only applies to the crime, not to the right to private defence. If the act constituting
the offence was done in the exercise of the right of Private Defence, it would cease to be an
offence due to constructive liability. 116

As a result, common intention only applies to the crime, not to the right to private defence. If
the act constituting the infraction was done in the exercise of the right to Private Defence, it
would cease to be an offence due to constructive liability. 117 If any of the accused caused
death in the exercise of his right to private defence, it was his own act, and he would be alone
responsible for the consequences. 118
3.2.3.4 RIGHT OF PRIVATE DEFENCE TO AGGRESSORS

The right to Private Defence is essentially a defence privilege that is limited by statute and
usable only in exceptional circumstances. The right may not be invoked or used as a pretext
for vengeful, hostile, or retaliatory purposes. Because the right is only available in the case of
an offence, an aggressor cannot use it to defend himself. The right to self-defence cannot be
used as a justification for an act of hostility. When the accused is the aggressor, he is not
entitled to a private attorney.119 This is true even if the individual exercising the right of
private defence has the upper hand over the aggressor, as long as he does not exceed his right,
as doing so constitutes an offence. 120 Aggressors do not have the right to self-defence, even if
they injure victims as a result of their hostility. The prosecution's non-explanation of the
accused injuries did not hold up under scrutiny in that case.121 When both parties repress their
hostility and label the other as the aggressor in a criminal case, the court has no choice but to
acquit the accused person122 because it is difficult for the court to determine which of them is
telling the truth. In State of Uttar Pradesh v. Ram Swarup,123 the Supreme Court held that:

The right to Private Defence is a defence right, not a right to retaliation. It is available to
individuals who act in good faith in the face of impending danger, but it cannot be granted to
someone who stage-manages a situation where the right can be used as a shield to legitimise

116
Shyam Singh v. State of Uttar Pradesh, 1992 CrLJ 1632, p.1638-1639 (All.)
117
Ibid
118
Salik v. State of U.P., 1992(2) Crimes 384- 385(All.)
119
Stateof U.P. v. Ram Swarup, AIR (1974) SC 1570
120
Munney Khan v. Stateof Madhya Pradesh, AIR (1971) SC 1491
121
Sonelal v. Stateof U.P., AIR (1981) SC 1379
122
Mehar Singh v. State of Punjab, 1997 SCC (Cr) 752
123
AIR (1974) SC 1570
an act of aggression. While the Penal Code recognises the right to self-defence, there is no
system in place to allow an attack to be instigated as a pretext for murder."

When a right of private defence is asserted, the focus of the case should be on determining
who the aggressor was and whether the accused party responded in good faith or not. Even if
a plea of Private Defence is not entered, the court must determine whether a case can be made
out based on the prosecution's evidence or whether the accused was the aggressor. A person
who is the aggressor cannot claim a right of Private Defence against the person who is
exercising his right of Private Defence against the aggressor. An aggressor cannot make a
right plea; such a plea might only be made if there is an imminent risk, real or apparent. An
accused person must not be the one who invents the need for self-defence. Similarly, the
Supreme Court declared in State of Uttar Pradesh v. Pussu, 124 that an aggressor who seeks an
attack on himself by his own, aggressive attack cannot invoke the right of self-defence if, in
the course of the transaction, he purposefully murders somebody whom he has previously
attacked.

Both parties cannot claim the right to Private Defence if both have been injured and it is
unclear who was the aggressor. The concept that unexplained injuries on the accused are
proof that the accused was acting in self-defence is merely a prudential rule, not a legal norm.
Whether or not the rule should be applied in a specific case is determined by the facts of the
case. The fact that the accused has injuries on his body is evidence that he was exercising his
right to self-defence and that the aggressor was the other party. The absence of any injuries to
the accused person indicates that he was not the target of an attack and that he was not acting
in self-defence. The examination of injuries is not the only way to corroborate the accused
defence. The majority of the time, however, the courts point out and differentiate between the
injuries sustained by the accused and those sustained by the complainant or deceased. The
existence of injuries on the accused person indicates that he or she invoked his or her right to
Private Defence.

The large number of injuries on the deceased's person indicates that the accused individual
went beyond his right to private defence. The offender was entitled to be convicted under
section 304, Part I of the Indian Penal Code if he inflicted the fatal damage on the dead after
exceeding the limit of Private Defence. The absence of injuries on the accused person is 'Res
ipsa loquitor,' i.e. the object speaks for itself, and it may lead to a presumption of fact that the
victim party was unarmed, that all of the weapons were with the accused, and that the accused
is the aggressor. The validity of the Private Defence plea is weakened. The accused does not
have to plead that he acted in the exercise of his right to private defence. When a plea of
Private Defence is based on the wordings of Section 97 of the Indian Penal Code, the court
must consider it in light of the evidence and materials presented before it. The accused can
only be found guilty of the crime if the plea is not established.

When it comes to the sanctity of bodily interests, courts tend to favour the accused who have
been the victims of initial aggressions. As a result, in every case, the issue of aggressor has
been central to the justification of the right of private defence. State of U.P. v. Ram Swarup 125
and Kishan v. State of M.P.126 are two notable cases in this regard. In the previous decision,
the Supreme Court established an extremely strict standard that will allow the initial aggressor
to assert the right to Private Defence in unusual circumstances. According to the Supreme
Court's ruling in this instance, the aggressor should have taken every attempt to get out of the

124
AIR (1983) SC 867
125
AIR (1974) SC 1570
126
AIR (1974) SC 294
position he had created, therefore negating the aggressiveness. In Kishan v. State of M.P., a
similar issue became crucial in justifying the exercise of the right to Private Body Defence. 127

In this case, the session judge found the appellants not to be the aggressors in the scenario and
acquitted them. The appellant party was found to be the aggressors by the High Court, which
overturned the session court's ruling. The Supreme Court confirmed the lower court's
decision, ruling that because the appellants were aggressors, they had no right to use their
right to private defence. All of these cases demonstrate that the law of private defence is not
intended to assist those who take the law into their own hands and commit acts of aggression
against others. This view confines the right to private defence to socially relevant features,
putting the law of private defence into line with the prevalent criminal justice administration
policy.

3.2.3.4.1 WHO ARE LIKELY TO BE AGGRESSORS?

If the number of injuries on both sides is significantly different, it is almost evident that those
who caused the most injuries were the aggressors. It's possible that after an accused person
has proved his right to Private Defence, the sheer amount of injuries caused by the accused
persons will not be considered in the 'golden scales.' This isn't to say that they haven't been
weighed on any scales at all. It also does not imply that, even if the accused persons have
failed miserably to demonstrate the supposed right to Private Defence, they can nevertheless
rely on the concept that the injuries on both sides should not be "weighed in golden scales." 128

3.2.3.4.2 LIMITED RIGHTS TO AGGRESSOR FOR SELF-DEFENCE

Despite the general rule denying an aggressor the right to self-defence during an incident
stemming from the aggression, an aggressor does have limited rights of self-defence within
the general rule. Because these instances are dependent on someone's post-aggression
behaviour, it's helpful to think of them as situations in which the aggressor's right to self-
defence is "reinstated" as a result of one of two types of behaviour. The aggressor's right to
self-defence can only be restored in the first case where the aggressor employed only non-
lethal force, such as fists or some other non-lethal weapon at the outset of the conflict. If the
aggressor uses lethal force in response to the victim's use of deadly force, the aggressor has
the right to protect himself. 129 Consequently, this can be explained by noting that the initial
victim’s response to the aggression was excessive and thus beyond the victim’s own right to
self-defence. The initial victim thus became the aggressor, and the altercation became
attributable to the initial victim’s overreaction. The second situation in which the right to use
force in self-defence is reinstated exists where the aggressor has withdrawn from the
altercation that he began. However, American courts are split on whether the victim's
withdrawal purpose must be explicitly expressed or whether reasonable efforts to disclose this
goal will suffice. This exemption can be rationalised on the grounds that once the aggressor
has retreated, the continuation of the conflict cannot be assigned to the initial aggressor, but
must instead be attributed to the victim's overreaction in prolonging the struggle. 130

3.2.3.4.3 ABSENCE OF EVIDENCE AS TO THE MANNER OF THE

START OF INCIDENT

127
Ibid
128
Mangat v. State, AIR (1967) All. 204, p. 208
129
Castillo v. State, 614 p. 2d 756 (Alaska 1980)
130
Sanford H. Kadish, Encyclopedia of Crime and Justice, (New York, 1983) p. 948.
In the absence of clear proof as to how the incident began, the accused should be given the
benefit of the doubt, and it may be recognised that they were not the aggressors and that when
they were attacked, they had a right to private defence. 131

3.3 AVAILABILITY OR NON-AVAILABILITY OF PRIVATE

DEFENCE: FACTORS TO BE KEPT IN VIEW

To determine whether or not a right of Private Defence exists, the entire occurrence must be
carefully analysed and regarded in its proper context. The accused injuries, the imminence of
a threat to his safety, the injuries caused by the accused, and whether the accused had time to
contact public authorities are all essential issues to examine when deciding whether to pursue
a Private Defence plea. As a result, rushing to the house, retrieving a sword, and assaulting
the corpse is not a random act. These actions show the imprint of a plan to kill and remove the
case from Private Defence’s jurisdiction.132 Along with the aforementioned considerations, it's
important to keep in mind the following restrictions on the right to private defence of one's
person and property:
i. If there is adequate time for recourse to public authorities, the right is not available;
ii. More harm than is necessary should not be committed;
iii. There must be a reasonable fear of death or grave bodily harm or damage to the person
or property in question.133

3.3.1 RIGHT OF PRIVATE DEFENCE IS VERY NARROW

The right of private defence bestowed or retained by law for an individual is a very limited
and constrained right that can only be exercised when the circumstances fully justify it. 134 It
cannot be argued that because a death occurred in the complainant's party, the accused
persons may be considered aggressors.135

3.3.2. NO RIGHT OF PRIVATE DEFENCE TILLS ATLEAST AN ATTEMPT TO

COMMIT AN OFFENCE

It should be noted that the right to private defence presupposes the attempt or commission o f
an offence as defined in Section 97 of the Indian Penal Code. As a result, no right exists until
there was at least an attempt to commit a crime.

The right to self-defence begins as soon as a realistic fear of bodily harm develops and
continues for as long as the threat exists.136 The question of whether or not a person has a
right of private defence must be answered in light of the provisions of Section 97 of the Indian
Penal Code, which clearly states that every person has the right to defend his body against
"any offence," subject to the restrictions set forth in Section 99. The legislation relating to
Private Defence is explicitly stated in this clause, which specifies that the right is only granted
to protect one's body against "an infraction."137

3.3.3 FACTORS TO BE CONSIDERED BY THE COURT IN DECIDING

THE PLEA OF PRIVATE DEFENCE
131
Hari Ram v. State of Rajasthan 1992 Cri LJ 3168,p. 3177
132
Biram Singh, 1975 CrLJ 44 (SC)
133
Puran Singh, 1975 CrLJ 1479 (SC)
134
Dhanno Khan v. State, AIR (1957) All.317, p. 318
135
Balackee Jolahed, 10 W.R. 9
136
Naye Nahak v. Stateof Orissa, (1962) 4 Orissa J.D. 17
137
State v. Bharat Singh Odhar Singh, (1961) 1 CrLJ 649, p. 651
True, when applying the law of private defence, the court must make all reasonable
accommodations in favour of the accused and must not apply the law in such a way that
people become cowards. It is also true that, in deciding situations of this nature, the mental
state of the assailant must be considered, rather than the views formed by bystanders or in the
cold courtroom setting. It is also true that the accused activities should not be weighed in
golden scales, nor should we judge the accused conduct step by step throughout the conflict.
But, while applying all of these ideas and facts, the most important thing to remember is that
the right to self-defence exists only as long as there is a legitimate fear of harm. When an
accused person inflicts a number of injuries in the exercise of his right to Private Defence, the
important question to determine is whether, in the circumstances in which the accused was
placed, the apprehension that his life was in danger persisted in his mind when he inflicted a
particular injury or injuries, and whether that apprehension was reasonable.

True, one of the tests that could be used to determine whether the accused was still behaving
out of self-preservation instincts or whether other emotions such as rage, malice, and reprisal
had intervened would be to see if the accused was still acting out of self-preservation
instincts. The accused would have the right to private defence in the first case, but not in the
second.138

Where the accused, fearful of harm to himself and his family members, switches from
defensive to offensive mode as a result of the first incident, without having the requisite intent
to murder a specific person, his act would be classified as one in which he exercised his right
to Private Defence, entitling him to an acquittal.139

3.3.3.1 BURDEN OF PROOF

When a plea of private defence is taken, the Indian Penal Code does not address the issues of
'burden of proof,' 'duty of court,' and 'duty of prosecution.' The treatment of the subject, on the
other hand, appears to be required in order to define the practical boundaries of the private
defence.

Because every individual accused of a crime is presumed innocent, the prosecution must
prove beyond a reasonable doubt that all of the elements of the crime with which the accused
is charged are present. As a result, the prosecution must prove each element of the offence.
The following are the general rules governing the burden of proof in criminal cases:

First, the court assumes the accused is innocent; second, if the prosecution has proven beyond
a reasonable doubt that the accused is guilty and he raises any defence, he bears the burden of
establishing the fact.

Section 105 of the Indian Evidence Act of 1872 allows for this. It states that if the accused
asserts that his case falls under one of the recognised exceptions, he bears the burden of proof.
The leading judgement is Woolmington v. Director of Public Prosecutions,140 issued by the
House of Lords. Their Lordships pointed out that the prosecution must establish all of the
elements that make a killing a murder, not just that the accused caused death and asked the
court to presume it was murder. It is the prosecution's responsibility to prove the prisoner's
guilt, not the prisoner's. However, while the prosecution must show the prisoner's guilt, the
prisoner is not need to prove his innocence, and it is sufficient for him to create a reasonable
138
Umar Khan v. State, (1961) 1 CrLJ. 653, p. 653-654
139
Harish Kumar v. State of M.P., 1996 SCC (CR) 1080, p.1089
140
(1935) AC 462
doubt about his guilt; he is not required to satisfy the court of his innocence because there is
already a presumption of innocence. The presumption of innocence has this impact. Lord
Sankey, L.C., reviewing previous judgements, stated unequivocally:

"One golden thread runs through the web of English criminal law: it is the prosecution's job to
establish the prisoner's guilt, subject to the defence of insanity and any legislative exceptions."
If there is a reasonable doubt, created by the evidence given by either the prosecution or the
prisoner, at the end of and on the whole of the case, as to whether the prisoner killed the
deceased with a malicious intent, the prosecution has not made out the case, and the prisoner
is entitled to an acquittal. Regardless of the accusation or the location of the trial, the idea that
the prosecution must show guilt is part of English common law, and no attempt to reduce it
can be tolerated."

This is true not only in criminal cases, but very certainly in any civil action in which a
criminal act is alleged to have been committed. This presumption is so strong that, in order to
overcome it, the crime must be driven home to a prisoner "beyond reasonable doubt"; and the
more serious the offence, the greater the degree of reasonable doubt.141

The Supreme Court142 has recognised that a person has a fundamental right not to be
convicted of an offence that is not proven beyond a reasonable doubt by the evidential
standard of proof. There is no absolute standard, even though this is a higher level. What
degree of likelihood constitutes proof is a case-by-case exercise.... Actual and serious
questions about the accused guilt must arise from the evidence or absence thereof, rather than
mere apprehension. A reasonable doubt is a fair doubt based on common sense and reason,
not a fictitious, insignificant, or just probable doubt. It must emerge from the case's evidence.

Surmises and guesses cannot be used to support a claim of right to private defence. Evidence
must be presented to establish the circumstances that led to the exercise of such a right.143 The
right to self-defense should not be taken for granted. The claim of a right to private defence
must be supported by evidence. The Court is obligated to rule on the issue of private defence.
It is correct that the accused bears the burden of proof. However, this burden is not as great as
the one that the prosecution bears in proving its case against the defendants. The accused does
not have to produce witnesses in order to establish a case of private defence based on the facts
of the case.144

The accused' inability to show all of the conditions that bring the case under the exceptions
does not exonerate the prosecution of its burden to establish the components of the crime, nor
does it take away the accused right to an acquittal on the basis of a reasonable doubt.145
Because the accused invokes the right to a private defence, the prosecution's responsibility to
prove its case beyond a reasonable doubt is not neutralised nor moved. The prosecution must
first satisfy its customary duty of proving the accused complicity, and only then can the
question of whether the accused acted in self-defence be raised. The accused bears the burden
of showing the existence of circumstances that would bring the case under the general
exception to the right of private defence, and the Court must assume that such circumstances
do not exist. The burden on the accused to show the exception is not as severe as the
prosecution's burden of proving the accusation beyond a reasonable doubt. It is sufficient for
the accused to establish, like in a civil proceeding, that the preponderance of the evidence is in
his favour.
141
Kenny’s Outlines of Criminal law, 19th edition, (1996), by Turner
142
State of Uttar Pradesh v. Krishna Gopal, AIR 1987 SC 2154
143
AIR 1915 Mad. 532
144
Narain Singh v. State of Haryana, AIR 2008 SC 2006
145
Lakshmanan v. Lakshmanan, AIR 1964 Mad. 418
While this is the general concept, Section 106 of the Indian Evidence Act also applies, and the
impact of this section is that where a truth is particularly within the knowledge of the accused,
he bears the burden of proof.146 J. explained the reasons to Bayley:

"It is a general rule that if one party makes a negative averment that is specifically within the
knowledge of the other, the party whose knowledge it is, and who declares the affirmative, is
required to show it, not the party who asserts the negative." And, when we evaluate the
circumstances in this case, we can't help but conclude that the prosecution witness will be
unable to provide any evidence of the defendant's lack of qualifications. It is not difficult to
place the burden of affirmation proof on the defendant, because he must be presumed to know
and be able to prove his own qualifications.... However, if the onus of proving the negative is
placed on the opposing side, many perpetrators will be able to avoid conviction." 147

The Supreme Court rejected to draw the inference that the accused was guilty because he
stayed mute and offered no explanation. "We are unable to make such a conclusion." The
prosecution must prove its case positively, and it cannot rely on the accused decision to keep
mute to do so."148 Even if the accused provided an explanation that was later discovered to be
untrue, this has not been deemed to constitute proof of his guilt. 149 The rules of evidence have
been developed over time for one purpose: to safeguard the person from being wrongfully
convicted of an offence he did not commit. As a result, "at least intellectually, it is easier to
show innocence than guilt." Proof of innocence requires only one credible alibi, whereas
proof of guilt beyond a reasonable doubt necessitates a mountain of evidence that eliminates
every logical inference save guilt."150

True, the onus of showing exceptions, such as the right to private defence provided in the
Indian Penal Code, 1860, falls on the accused under Section 105 of the Indian Evidence Act,
but the section does not specify the form or standard of proof required. The Evidence Act
makes no provision for the accused to show his case with the same rigour and zeal as the
prosecution is obligated to do in a criminal proceeding. It is sufficient if the accused is able to
prove his case by the preponderance of the evidence standard set out in Section 5 of the
Evidence Act, as a result of which he succeeds not because he proves his case to be guilty, but
because the probability of the version given by him casts doubt on the prosecution case, and
the prosecution cannot be said to have established the charge beyond reasonable doubt.

If the accused is successful in bringing his case within the exemption, the first portion of
Section 105 of the Indian Evidence Act is sufficient. It covers the entire proof of the
preponderance of evidence-based exception. The existence of the exception gives the accused
the benefit of the doubt when it comes to the elements of the crime. The phrasing in the first
half of Section 105 appears to be intentionally vague in order for the accused to benefit from
the exception even if he does not fully discharge his task. Even if the last portion of Section
105 is strictly and precisely understood, it does not justify the accused obligation to show the
exception completely by a preponderance of likelihood. The term "burden of proof" refers to
the requirement to demonstrate the truth or falsity of a fact,151 or statement. Proof, on the

146
Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660
147
This result has been criticized. See R. v. Oliver, (1944) M.B. 68, Jon v. Humphreys, (1955) 1 WLR (DC) 1 ,
pp. 212, 213
148
Nagappa Dondiba v. State of Karnataka, AIR 1980 SC 1753
149
Shankarlal v. State of Maharastra, AIR 1981 SC 765
150
WILLIAM, J. Curran & E. Donald Shapira, Law, Medicine and Forensic Science, reviewed in (1982) 92
Yale.L.J. 203
151
Bhoormal Prem Chand v. Collector of Customs, Madras, AIR 1967 Mad. 39, p.43
other hand, does not imply proof in the strict, mathematical sense, as this is impossible.152 In a
criminal case, it refers to evidence that would lead a reasonable person, under the
circumstances of the case in which the claim is made, to act on the assumption that it exists.153
The principle is based on the Roman maxim Ei qui affirmat non ei qui negat incumbit
probation.154 The maxim is based on two considerations: the person seeking the Court's
assistance should be the first to prove that he has a case, and the affirmative is more difficult
to prove than the negative. For a conviction in a criminal matter, proof beyond a reasonable
doubt155 is required. The burden of proof is defined in two ways: I the burden of proving a
case, and (ii) the responsibility to present evidence.156

The Supreme Court established some rules in regard to the burden of proof that lies on the
accused to prove his case, which were reaffirmed by FAZAL ALI, J., in Rabindra Kumar Dey
v. State of Orissa: 157

Three cardinal principles of criminal law, in our opinion, are clearly established:

i. That the prosecution has the burden of proof to prove its case beyond a reasonable
doubt, and that it cannot benefit from the defence version's weakness or falsity in
proving its case;

ii. That in a criminal trial, the accused must be presumed innocent until proven guilty;
and

iii. That the prosecution's burden of proof never shifts.

3.3.3.1.2 BURDEN OF PROOF WHEN BECOMES RELEVANT

The true rule appears to be that where a certain intention or knowledge is part of the definition
of an offence, the prosecution must prove it, and in proving it, facts must be ascertained on
which the accused is entitled to rely for disproof or mitigation of his offence, just as he is
entitled to rely for proving his non-liability. In such circumstances, the question isn't so much
about the burden of proof as it is about what offence the evidence reveals. However, where
comprehensive proof of the crime is necessary and independent evidence is required to
disprove the crime, the question of onus becomes relevant. Even in that situation, if the facts
are all there and there is no question of surprise or unfairness to either side, the court will
allow the accused to show his extraordinary immunity from the offence by cross examination
of prosecution witnesses or other means. When the evidence is plain and unequivocal,
however, he cannot be allowed to depart from his previous defence and argue for his
innocence on hypothetical grounds. He cannot persuade the court to presume facts that he
never pleaded and that would need the introduction of new evidence if pleaded. Though the
standard of proof for the defence may be less onerous than for the prosecution, the law does
not consider the accused ipse dixit or the advocate's noisy argument to be adequate to meet

152
Ratanlal and Dhirajlal, The Law of Evidence, (1969), p.8
153
The Indian Evidence Act (1 of 1872), Section 103; Myron L.Gorden, “Fraud in Federal Income Tax”,
Morquitte Law Review, (1948), p. 120 at 127
154
Phipson on Evidence (1970) p. 90, See also Stephen, Digest on the Law of Evidence, Article 104, S.C.
Sarkar, Law of Evidence, (1953) p. 764
155
Ruppert Cross, Evidence (1967) at p.88; See for meaning of “proof beyond reasonable doubt” Millar v.
Minister Pensions, (1947) 2 All.ER 372 at p.373, per Lord Denning; R. v. Kritz, (1950) 1 K.B.82; 90 and R. v.
Summers, (1952) 1 A11.ER1059, per Lord Goddard.C.J.; see also J.A. Courts, “Standards of proof in the
Divorce Court”, (1950) 14 Mod.L.R. 41 1
156
Halsbury Laws of England, Vol. XIII Para 605
157
(1976) 4 SCC 233
the aforementioned requirement. Neither the counsel's creativity nor the court's ability to
analyse can be summoned to give a defence to an accused who has not taken any defence or,
if he has, is unable to show it.158

3.3.3.1.3 NO GENERAL RULE REGARDING PLEAD OF PRIVATE DEFENCE

It is conceivable to develop a general rule that the court may apply in circumstances when
there is no common norm for guidance due to their complexity and variety. While the accused
should raise the private defence in proper legal terms, the court, in its desire to do justice,
allows such a plea to be presented at any time, not on hypothetical grounds, but if the facts
essential to establish it are on record.159 However, this is an indulgence, not a right, and it
cannot be extended in cases where independent facts must be considered or proven, such as
defamation.160

3.3.3.1.4 SCOPE OF PLEA OF PRIVATE DEFENCE

The right to private defence is essentially a defensive right that is governed by statute. It
should not be used as a pretext for vengeful, hostile, or retributive purposes. If the accused has
a case for exercising private defence, it is preferable that he state his case clearly and present
all relevant papers to the court as soon as possible. If the facts and circumstances of the case
show that the accused has exercised his right to private defence, he must be given that benefit.
The accused does not have to plead in so many words that he acted in self-defence. It is open
to the court to consider such a plea if the circumstances suggest that the right to private
defence was legally exercised. Even though the accused has not taken it, if it is available, the
court might consider it from the information on record. A person pleading the right to private
defence is not required to call evidence on his side, but he might establish that plea by
referring to the facts revealed by the prosecution evidence. Surmises and guesswork cannot be
used to support a right of private defence claim. When determining whether an accused has
the right to a private defence, it is irrelevant whether he has a chance to inflict serious and
fatal injury on the attacker. To determine whether someone accused has the right to a private
defence, the entire incident must be carefully scrutinised and seen in its proper context.

3.3.3.1.5 WHEN ACCUSED NOT PLEADS RIGHT OF PRIVATE DEFENCE

It is a well-established concept that the accused does not have to claim the right to self-
defence. The prosecution, without a doubt, has the burden of proof under Section 105 of the
Evidence Act. Even if the accused pleads the right to a defence, nothing changes. The accused
may raise a defence of self-defence by pleading it directly or depending on the facts and
circumstances of the case. He can present positive proof to support his self-defence plea, or he
can rely on the prosecution's case and introduce his plea during cross-examination of
witnesses, or he can rely on probabilities and other circumstances.161 Even if the accused
does not plead the right to self-defence, the majority of High Courts and the Supreme Court
have ruled that the benefit of self-defence may be granted to the accused if there is evidence
to the effect of self-defence. In G. V. S. Subbrayanam v. State of A.P.,162 the Supreme Court
held that even if the accused did not raise the plea of self-defence, the Court is not barred
from "giving to him the benefit of the right of private defence, if on proper appraisal of the
evidence and other relevant material on the record, the Court concludes that the circumstances
in which he of and himself at the relevant time gave him the right to use his gun in e self-
158
Ram Manohar v. State of Madhya Pradesh (1989) 1 CrLJ 717, pp. 721,722 (M.P.)
159
Kartar Singh v. Raj., 1952 CrLJ 1034
160
Abdur Razak v. Gansi Nath, (1910) PWR 4
161
Bahadur Singh v. State of Punjab, (1992) CrLJ 3709, p. 3710 (SC)
162
(1970) 1 SCC 235 at 247
defence." Several High Courts have agreed with this viewpoint. In re. Jogali Bhagro Naik 163,
the Madras High Court declared that even though an accused does not plead self-defense, the
Court may entertain such a plea if it arises from the evidence. Similarly, in State of U.P. v.
Jagdish Puttoo Lai, 164 the Allahabad High Court held that even if the accused has not
specifically taken a plea of self-defence, the Court is empowered to grant him the benefit of
that plea if, after a thorough examination of the evidence, the Court determines that the injury
caused by the accused was inflicted at a time when he had reasonable apprehension of
grievous harm being caused. The Supreme Court declared in Hanumantappa Bhimappa
Dalavai v. State of Karnataka165 that Section 96 of the IPC does not define the word right to
private defence. It simply means that nothing done in the exercise of such right is an offence;
whether a person acted in the exercise of such right in a given set of circumstances is an issue
of fact that must be determined based on the facts and circumstances of each case. The Court
must take into account all of the circumstances. It is not necessary for the accused to plead
that he exercised his right to private defence; nonetheless, the Court may consider such a plea
if the circumstances suggest that the right to private defence was properly exercised. If it is
available to be evaluated from the information on record, the court can consider it even if the
accused has not taken it. The latter viewpoint, it is argued, appears to fulfil the purposes of
justice. It is a well-established premise of criminal law that everyone is innocent until proven
guilty. This supports the premise that the accused should be given the benefit of the doubt.
Based on this approach, successive rulings have taken the position that if the evidence
presented to the Court shows that the accused may have acted in self-defence, he may be
granted the benefit of the doubt. It does, in fact, assist the courts in discovering the truth,
which is the ultimate purpose of criminal justice.

3.3.4 WHEN THERE IS A GAP BETWEEN THE ATTACK AND

COUNTER ATTACK

The accused persons were not deemed entitled to any right of Private Defence where there
was a gap between the attack on the accused and the counterattack on the other party, and the
accused did not allow the injured persons of the other party to be brought to the dispensary for
treatment.166

As a result, the Indian Penal Code does not specify the circumstances in which the right of
Private Defence may be used. However, under Section 101, the right to Private Defence of the
Body is applicable for offences not covered by Section 100 that result in death or serious
bodily harm. Similarly, the right of Private Defence of Property under Section 104 is limited
to causing the wrongdoer any harm other than death. Sections 100 and 103 define the types of
offences that can result in death if the right to self-defence is exercised. As a result, the
legislature failed to identify the circumstances under which the right may be exercised. The
courts have been asked to decide whether or not the right to private defence can be exercised
in each case.

3.4 PARTICULAR FACTUAL SITUATIONS WHERE THE RIGHT OF

PRIVATE DEFENCE OF BODY ARISES

The right to private defence is based on three principles: first, no more harm must be inflicted
than is necessary for the purpose of defence; second, there must be a reasonable apprehension

163
AIR 1927 Mad. 97
164
AIR 1966 All 244
165
( 2009) CrLJ 3045 (SC)
166
Kanhiyalal v. State of Rajasthan, 1989 CrLJ 1482 (SC)
of bodily harm from the attempt or threat to commit some offence; and third, the right does
not begin until there is a reasonable apprehension.167 "It is a magnificent moment of the
heart," Bentham observed, "that wrath which kindles at the sight of the feeble harmed by the
powerful." It is a beautiful movement that causes us to forget our danger at the first sign of
trouble..... Every honest man should see himself as the natural protector of every other in
matters of public safety."

Sections 100 to 101 establish the scope of a person's right to private bodily defence. If a
person has a right to private body defence under Section 97, that right extends to causing
death under Section 100 if there is a realistic fear of death or grievous bodily harm as a result
of the assault.168

There must be an infraction done or attempted to be committed before an act can be pleaded
as justified by the right of Private Defence. The question of whether or not a person's right to
Private Defence accrues is unrelated to whether or not he has been injured. If the facts and
circumstances of a given case indicate that, in the accused position, he could have had a
reasonable fear of a serious injury being inflicted on him, then he had the right to Self-
Defence.169 It is not essential for the infraction to have been committed in order for the right
of Private Defence to be invoked. It is sufficient if the accused suspects that such an offence is
being considered and will be committed if the right of Private Defence is not exercised.170 The
right of Private Defence would be rendered nugatory if it were to be invoked after the conduct
of an offence. Case law suggests that there is a reasonable fear of harm if I the force was used
in a communal disturbance that resulted in the assailant's death, and (ii) the harm causes a
reasonable fear of grave damage or death, even if the injuries are minor. In the case of Amjad
Khan v. The State, a communal riot erupted in Katni between Sindhi refugees and local
Muslims. The accused and his brother's establishments were fairly close to each other.
Their homes were likewise in close proximity. The crowd approached the accused
neighbourhood and plundered the accused brother's shop. After getting the scary news from
his mother and seeing the throng pounding on the doors of the accused shop with their fists,
the accused opened fire on the crowd through the entire wall of his dwelling house near the
shop, killing one Sindhi and injuring three others. Based on these facts, the Supreme Court
determined that the accused had reasonable reasons to believe that he or his family would
suffer death or serious harm. The conditions in which he found himself were adequate to grant
him the right to Private Defence of the Body, even to the point of death.

In Deo Narain v. State of Uttar Pradesh, 171 the aforementioned position was adopted. In this
case, the accused had speared the invader who had used a lathi in the exercise of his right to
private defence. Because of the simple weapon, the lathi, and the non-fatal nature of the harm
previously inflicted by the invader, the Court ruled against the accused. The Supreme Court
overturned the High Court's decision, holding that if the harm creates a realistic fear of grave
injury or death, the individual is justified in causing death even if the invader's injuries aren't
fatal. In Dharamvir Singh v. State,172 the Punjab and Haryana High Court held that whether a
person claiming the right to Private Defence of Body had any reasonable apprehension of
danger or not depends on his mental state and the situation in which he was placed at the
relevant time, and no one can say what was going through his mind at the time.

3.4.1 RESISTANCE TO AN ILLEGAL SEARCH OR ARREST

167
Dominic Varkey v. State of Kerela, AIR (1978) CrLJ 578
168
Brij Lal v. State of Rajasthan, (SC) 2016 AIR (SC) 3875
169
State of U.P. v. Jagdish Puttoo Lal, AIR (1966) All. 244 at p. 247
170
Pagla Baba v. State, AIR. (1957) Orissa 130 at p. 150
171
1973 CrLJ 677
172
1975 CrLJ 132
It will be criminal to make an illegal arrest, search, or seizure. A person's right to resist an
illegal search or arrest is unquestionable. This type of resistance will be carried out in the
exercise of one's right to self-defence. 173 The villagers could be deemed to have acted in the
exercise of their right to Private Defence when they attempted to rescue a person who had
been unlawfully detained by the police and only attacked them after one of them fired three
shots one after another.174

3.5 PARTICULAR FACTUAL SITUATIONS WHERE THE RIGHT OF

PRIVATE DEFENCE OF BODY DOES NOT ARISES

In Russell on Crimes,175 the law on the subject is stated thus:

When a man is assaulted in the course of a sudden brawl or argument, he may, under certain
circumstances, protect himself by killing his opponent and claiming Self-Defence, reducing
his crime from murder to homicide, which only carries a penalty of forfeiture. He had to
establish, first, that he had denied further combat before a lethal stroke was delivered; and,
second, that he then killed his enemy out of necessity in order to save his own immediate
death." "In all cases of homicide excusable by self-defence or chance medley, it must be
assumed that the fatal blow was struck on a sudden occasion, and not premeditated, or with
malice, and from the doctrine which has been laid down it appears that the law required that
the person who killed another should have retreated as far as he conveniently or safely could,
to avoid the violence of the assault, before turning upon his assailant, and that not fictitiously
or involuntarily.

There can never be a case of a sudden fight if some people go to another with the intent of
attacking him. In that instance, the latter would be entitled to the right of Private Defence in
order to defend himself from the former's attack. A sudden fight occurs when two people
gather at a location and a disagreement erupts, as a result of which the parties attack each
other or one person assaults another.176

In a sudden battle, the right to private defence is not sustained by either party because it is
difficult to determine who is the aggressor in such a situation. In the case of Paras Ram v.
Rex,177 a sudden quarrel arose between the accused A and the dead B over the ownership of a
livestock trough. On the 14th of June, 1947, an argument erupted, culminating in a brawl.

Both sides were equipped with lathis before the battle began, but there was no indication that
the parties had made any pre-arranged plans to resolve the issue that day or had made any
preparations to that goal before the fight began. Without A assaulting him or threatening to
assault him, the deceased B delivered the first strike. C, A's son, raced to his father's aid. B
was killed by the accused A and C, who hit him with lathi strikes. Based on these facts, the
Allahabad High Court concluded that it was not a case of two people coming together pre-
prepared to fight and test their power, but rather a case of fighting over a cattle trough and
verbal abuse. As a result, the defendants had no right to assault the accused in the first place,
and the accused's counter-attack would be considered self-defence. In the circumstances, the
accused A and his son C could not be said to have invoked their right to self-defence.

173
1965 (2) CriLJ 843 ( 844, 856) (Punj)
174
State of U.P. v. Niyamat, AIR (1987) SC 1562
175
11th Ed., p. 514, 515, 516
176
Statev. Koli Hira Bhaga, AIR (1961) Guj. 8, p. 11
177
AIR (1949) All. 274
When two parties engage in an unintentional battle, each is liable for the damage he causes
himself as well as the likely consequences of his party's pursuit of their common goal. He
cannot claim that his own blows were given in self-defence because he could be struck by a
member of the opposing group at any time. 178

3.5.1 FREE FIGHT

Accused side claims right of private defence in a free fight between two opposing groups;
generally, neither party has the right of private defence in occurrences of group fighting. 179

When two individuals or parties engage in a free fight, they are utilising unlawful force
against one another. From the start, both sides intend to battle. They arrive with the intention
of testing their power and resolving a quarrel through force. There's a pitched battle going on.
A pre-planned fight between two parties may result in interference that neither party seeks to
defend, but a pre-planned fight is not always required to turn a 'fight' into a 'free fight.'180 Both
participants are aggressors in a free battle, and neither of them is allowed to claim the right to
private defence.181 The participants freely went into a fight with mutual intent to damage each
other, which is an adequate test for deciding whether a fight is a free fight or not. In such a
battle, it makes little difference who attacks and who defends. 182 In a free battle, neither party
has the right to Private Defence, and each man is responsible for his own actions. 183 An
accused cannot be penalised for invoking section 149 of the Indian Penal Code since there is
either a shared intention or a common object in a free fight. Each person is accountable for his
or her own actions. 184 However, if determining who was the aggressor and who struck what
strike on whom is difficult based on the amount of injuries sustained by the participants to a
free fight, all of the accused deserve acquittal.185

3.5.3 TIME TO RECOURSE TO PUBLIC AUTHORITIES

There is no right to Private Defence in circumstances where there is no urgency, danger is not
imminent, and effective support can be obtained by relying on the protection of the public
authorities. When a person is suddenly attacked, it is not expected of him to surrender
violence; instead, he might retaliate and use appropriate force to avert the threat. The topic of
whether the mere presence of public authorities at the scene of an incident invariably deprives
a person of his right to private defence. The restriction on the right to private defence is based
on the principle that people should not take the law into their own hands if they can turn to
public authorities for adequate protection of their person and property, because it is the State's
primary function to protect people from unlawful aggression. However, where governmental
authorities are unable to prevent a threat to an individual's person or property due to their
ineptitude, imbecility, or any other reason, the individual's right to Private Defence remains
intact. It must therefore be determined in each case whether there was any actual threat to the
individual's person when the opposing party or his associates arrived at the scene. If the threat
was still there and the subject could reasonably anticipate that he would suffer serious injury,
he was justified in protecting himself from additional harm by employing force to the point of
death. However, if the individual's person was not in danger and his or her assailants had fled

178
In re Erasi Subba Reddi, AIR (1943) Mad. 492 at p. 493
179
Pathubha Govindji Rathod v. State of Gujarat (SC) 2015(2) Cri.CC 653
180
Kalu Ram v. Stateof Rajasthan, AIR (1965) Raj 74
181
Dwarka Prasad v. State of Uttar Pradesh, 1993 Supp 3 SCC 441
182
Gajanand v. State of Uttar Pradesh, AIR (1954) SC 695
183
Vishvas Aba Kurane v. State of Maharashtra, AIR (1978) SC 414
184
Rohtas & others v. State of Haryana, 1993 Cr L J 3303 (P & H)
185
Kanbi Nanji Virji v. State of Gujarat AIR (1970) SC 219
the scene or appropriate protection could be obtained from the public authorities present, the
individual would not be entitled to Private Defence.186

3.6 APPRAISAL:

The Indian Penal Code does not specify the circumstances in which a person's right to private
defence may be invoked. However, under Section 101, the right to Private Defence of the
Body is applicable for offences not covered by Section 100 that result in death or serious
bodily harm. Similarly, the right of Private Defence of Property under Section 104 is limited
to causing the wrongdoer any harm other than death. Sections 100 and 103 define the types of
offences that can result in death if the right to self-defence is exercised. As a result, the
legislature failed to identify the circumstances under which the right may be exercised.

As a result, the question arises as to when the Private Defence to Person and Property plea is
maintainable.
The Private Defence theory is based on the following considerations:

i. A person whose life is in grave danger does not need to wait for State assistance
unless it is available.

ii. The right to private defence is preventative rather than punitive (i.e., it is not intended
to punish); yet, punitive actions may be taken.

iii. The right cannot be exercised solely for personal gain. The act of self-defence should
not be premeditated or in retribution for a previous injury.

iv. The right must be exercised when there is a genuine and immediate threat, not a
hypothetical or distant one, and when there is a legitimate fear of such a threat. Fear of
being assaulted in the near future will not suffice.

v. Protective measures must be appropriate to the danger, i.e., violence must be

proportionate to the injury or threat to be avoided, and must not exceed such
limitations.

vi. The right to self-defence ends when it is no longer necessary. As a result, the
individual exercising such a right does not need to pursue and then beat the fleeing
attacker.187

vii. A person in such a situation is not required by law to balance the grounds for and
against an attack "in golden scales."

viii. An "aggressor," someone who goes out to beat up on someone else, cannot claim the
right to self-defence.

ix. Private Defence cannot be used against Private Defence. Under the code, there is no
right of private defence against any act that is not an infraction in and of itself.

x. In case of free fight, no right of Private Defence is available to either party. Even if an
accused does not plead Self- Defence, it is open to the court to consider such plea if
the same arises from material on record.
186
Dhoora v. State, 1963 Raj. L.W. 436 at p. 441,442Dhoora v. State, 1963 Raj. L.W. 436 at p. 441,442
187
State of U.P. v. Ram Swarup, AIR (1974) SC 1570
3.7 STATUTORY PROVSIONS IN RELATION TO RIGHT TO
PRIVATE DEFENCE OF BODY

Section 97 of the I.P.C. establishes the rule, while Section 99 of the I.P.C. establishes the
exceptions to which the rule is subject. Section 97 of the I.P.C. establishes the scope of the
right, whereas Section 99 of the I.P.C. establishes its boundaries. Section 97 of the IPC
specifies what a person is permitted to do, whereas Section 99 specifies what he is not
permitted to do. As a result, the two portions are complementary and together provide a
complete enunciation of the rule. The right to private defence can be used to defend against a
wide range of offences under Section 97 of the IPC. This section's first clause provides for
body defence "against any crime" affecting the human body. The second provides for the
protection of property against acts that constitute the conduct of "particular offences." The
Supreme Court explained the scope of section 97 of the IPC in terms of the right to private
body defence, holding that the code exempts large classes of acts done in good faith for the
purpose of repelling unlawful aggression from the application of its penal clauses, but that this
right is regulated and limited by several principles and limitations. The right of Private
Defence extends not only to the defence of one's own body against any offence harming the
human body, but also to the defence of any other person's body. The right also includes the
protection of property, whether one's own or that of others, from theft, robbery, mischief, and
criminal trespass. However, Section 99 of the I.P.C. restricts this right.

Can we utilise this right while defending the person and property of others? It should be noted
that the right to protect one's own person and property is just as vital as the right to protect
one's own. Governor Crittenden188 stated the following:

"Am I to defend my person only to stand by and watch my child, my wife, my property, and
my defenceless ones be destroyed or taken without resenting the harm?" No, no, no! That was
never the case with the legislation...... If I had no other choice, I would raise my own wild
hand and take my own life, inflicting pain on my Creator as a thankless gift."

So also Bentham189 observed:

"Are we capable of defending no one except ourselves?" Do we not have the right to defend
our fellow citizens against unjust aggression? Surely, the wrath that arises when the weak are
wounded by the powerful is a noble act of the heart. It's a great movement that causes us to
forget about our own risk at the first sign of trouble. The law should be wary of weakening
this generous union of courage and humanity. Let him who performs the duty of magistrate in
the interests of the oppressed be honoured and rewarded. Every honest man should see
himself as the natural protector of every other in matters of public safety."

The words "offences affecting the human body" appear in Section 97, which grants the right
of Private Defence, and in the beginning of Chapter XVI of the Indian Penal Code, indicating
that the right of Private Defence arises in favour of a person when any of the offences listed in
Sections 299 to 377 is contemplated to be committed against the person who seeks to exercise
that right.190

Except in extremely limited circumstances, the right to private defence applies solely to acts
that constitute an offence. It doesn't happen just because something is illegal or bad. The act
188
J.Donovan, Tact in Court, p.160
189
Principles of Penal Code, P. 269-270
190
Ram Saiya v. Emperor, AIR (1948) All. 205 P.208
must constitute a specific type of offence. The offence must be against the human body in the
case of person defence. The offence must be theft, robbery, mischief, or criminal trespass, or
an attempt to commit such offences, or aggravated forms of these offences, or their attempts,
in the event of property defence. A right of Private Defence will not be granted for an act that
is contrary to one's liking but is not illegal under the penal code. An act committed in the
course of exercising private defence is not a crime. There is no right to private defence against
such an act. A credible fear of death or serious bodily harm is enough to trigger the right to
Private Defence. It is not required that the apprehension manifest itself.

The term "offence" refers to a "thing" that is punished under the Indian Penal Code, with the
exception of the chapters and sections listed in clauses 2 and 3 of this section. The term
"thing" refers to the result of an action. So, if an act, i.e., a thing, is made punishable by the
Indian Penal Code, then that item is an offence, but this is subject to Section 40's clauses 2
and 3. Section 40, paragraph I, declares that the definition of offence set forth in paragraph I
applies not only to the Indian Penal Code, but also to special and local laws. According to
Section 40 (2), the term "offence" in Chapter IV indicates a "thing" punishable under the
Indian Penal Code or any special or local law as established hereinbefore. The idea of right of
private defence is discussed in Chapter IV, which is devoted to general exceptions. So, the
term "offence" as used in section 97 does not refer solely to the Indian Penal Code, but also to
special law and local laws, implying that everyone has the right to private defence against an
offence defined under the Indian Penal Code, Special law, or Local laws, subject to the
limitations set forth in section 99 read in conjunction with sections 100,101, and 102 in the
case of the body, and Section 99 read in conjunction with Sections 103,104, and 105 in the
case.

To determine whether a person has the right to Private Defence, the entire occurrence must be
carefully analysed and regarded in its proper context. The person's injuries, the imminence of
a threat to his safety, the accused injuries, and the circumstances of whether the person had
time to contact public authorities are all essential considerations to examine while deciding on
a Private Defence plea.

3.7.2 MEANING OF PHRASE “EVERY PERSON HAS A RIGHT TO

DEFEND”

Every human being is first and foremost devoted to his or her own body. Every man has the
right under Section 97 of the I.P.C. to use necessary force against an assailant and to cause
harm in order to protect his own body. At the same time, a man has a social responsibility to
defend the lives of others. Every honest individual should regard himself as the natural
protector of all others when it comes to public safety. The right to self-defence under section
97 of the Indian Penal Code extends not only to defending one's own body against any
offence harming the human body, but also to defending the body of another person. The
expression 'any other individual' refers to anyone who is attacked by the attacker. These
words demonstrate that the assailant has the right to defend anyone else in whom he has an
interest. People should be able to enjoy their own property without being hampered by the
law. Every person in possession of land has the right to defend his possession against anyone
who tries to evict him by force, steal from him, or do something that would do him harm. The
right of Private Property Defence did not vest in the accused if he had no right, title, interest,
or possession of the land in question.

3.7.3 RESTRICTIONS UNDER SECTION 99 OF I.P.C, 1860

The exercise of the right of private defence is subject to the limitations set forth in Section 99
of the IPC, which provide that the right of private defence does not extend to causing greater
injury than is required for the purpose of defence. 191 Section 97 is subject to the constraints set
in section 99, as the section states. Parts 97 and 99 of the I.P.C. are both subject to the ensuing
sections of Chapter IV. Sections 99, I.P.C., govern the rights granted under sections 96 to 98
and 100 to 106.

3.7.4 RIGHT OF PRIVATE DEFENCE EXTENDS TO THE CAUSING

OF UNAVOIDABLE HARM TO INNOCENT PERSONS

When a person is subjected to a lethal assault that generates a reasonable fear of death and his
right of Private Defence cannot be properly exercised without harming an innocent person,
Section 106 of the I.P.C. states that any harm inflicted to innocent people is likewise protected
by law. In other words, if an innocent person is killed or injured while exercising the right of
Private Defence, the law protects the man exercising the right of Private Defence by
exempting him from criminal punishment. The section's graphic is self-explanatory. There
was a battle between two factions in Wassan Singh v. State of Punjab.192 Nine injuries were
sustained by the accused. He fired his gun at the assailants, but it accidentally hit and killed an
innocent woman bystander. The accused was acquitted after the Supreme Court ruled that he
had the right to a private defence. Section 106 of the I.P.C. applies in cases of severe need,
when a person is allowed to risk harming an innocent person in order to save him from
death.193 This section should be read in conjunction with I.P.C. section 100. It is legal in the
United Kingdom. It allows for the infliction of harm on innocent people in the exercise of
one's right to self-defence.

191
Bhagirathi Burhia v. State, AIR (1965) Orissa 99 at p. 101
192
(1996) CrLJ 878 SC
193
Lallan v. Stateof U.P., 1984 AllLJ 894
 CHAPTER IV

EXTENT, LIMITATION AND RESTRICTIONS ON RIGHT OF

PRIVATE DEFENCE TO CAUSE DEATH OR
OTHER HARMS IN INDIA

4.1 INTRODUCTION

In Raj Singh v. State of Haryana,194 it was held that Section 99 of the I.P.C. deals with acts for
which there is no right of private defence and, among other things, states that the right of
private defence does not extend to causing greater injury than is necessary for the purpose of
defence. Section 100 of the Code deals with situations in which the right to private bodily
defence extends to voluntarily causing death or other harm to the assailant if the offence that
prompts the exercise of the right is one of the types listed in the section. Causes death, great
bodily harm, rape, gratifying unnatural lust, and assault with the goal of abduction or
abducting are among the offences listed under the aforementioned law. Similarly, Section 103
of the Code addresses the right to private property defence in a variety of situations, including
robbery, night time housebreaking, mischief by fire of any building, tent, or vessel used as a
human residence, and so on. A combined reading of Sections 96 to 103 of the Code, as well as
Exception 2 to Section 300 of the Code, leaves no doubt that culpable homicide is not murder
if the offender, in good faith, exercises the right of private defence of person or property and
causes the death of the person against whom he is exercising such right of defence, provided
that such right is exercised without premeditation. A fortiori, in circumstances where an
accused asserts his right to private defence, the first and most important question for the Court
to decide is whether the accused had the right to private defence in a situation where he
caused death or other harm. If you answer no to that question, Exception 2 to Section 300 of
the Code will not help you. Exception 2 assumes that the criminal had the right to self-defence
of person or property, but that he had overstepped that right by killing someone. Only if the
first question is answered affirmatively, i.e., the offender had the right of person or property
defence, will the second question, i.e., whether he had exercised that right in good faith,
without premeditation, and without any intent to do more harm than was necessary for the
purpose of such defence, arise. If the offender answers no to any of these questions, he or she
will not be eligible for the benefit of Exception 2 to Section 300 of the I.P.C. The benefit of
Exception 2 to Section 300 would be denied to the offender if there was no good faith in the
exercise of the right to private defence, premeditation for the exercise of such right, or
conduct done with the objective of causing more injury than is necessary for the purpose of
such defence. Whether or not an offender has a right to a private defence is an issue of fact, or
at the very least a mixed question of law and fact, that must be evaluated based on the facts
and circumstances of each specific case that may come before the court.

4.2 ACTS AGAINST WHICH THERE IS NO RIGHT OF PRIVATE

DEFENCE

Within some acceptable boundaries, all free, civilised, democratic countries recognise the
right to private defence of one's person and property. These limitations include the fact that all
other members of society claim the same right; and the fact that the State is normally

194
2015 AIR (SCW) 2941
responsible for maintaining law and order. Citizens are not required to flee for safety when
they are faced with significant and imminent danger to their person or property as a result of
unlawful aggression, nor are they expected to right wrongs done to them or punish the
wrongdoer for committing offences by using force. The right to self-defence serves a social
function, and as the courts have often stated, there is nothing more demeaning to the human
spirit than fleeing in the face of danger. However, this right is primarily preventative rather
than punitive.

Except for individuals listed in Section 99, I.P.C., everyone has the right to private defence. It
specifies the conduct that do not give rise to the right of private defence. It establishes the
parameters within which the right to self-defence may be exercised. The first two paragraphs,
when read in conjunction with explanations one and two, establish that there is no such right
against an act done or attempted to be done by a public servant 195 or an act done or attempted
to be done by a public servant's direction, unless it causes reasonable fear of death or grievous
harm, as long as the public servant acts legally. By virtue of paragraph three of section 99,
I.P.C., the right to private defence is not available while time is available for recourse to State
authorities or seeking assistance from the State. The final paragraph states that the amount of
injury produced in the exercise of the right of private defence shall not exceed the amount of
harm required for the purpose of defence. As a result, the right to private defence of one's
body or property must be exercised under the following conditions:
i. If a public servant does not cause a reasonable fear of death, serious bodily harm, or
property damage;

ii. If there is adequate time to contact public authorities; and

iii. If no more harm is caused than is necessary to fight the attack.196

I.P.C. Section 99 has been misplaced. It belongs following Section 100 of the IPC, which
outlines the scope of the right. Its restrictions are defined in this section. Sections 102, 110,
106, 105, 103, 104, and 99, I.P.C., might all be rearranged in this order more logically. If the
third and fourth paragraphs had come before the first two, Section 99, I.P.C. would have made
sense. The explanations would be better placed if the latter referred to a distinct class. This
section's third clause must be interpreted as subject to Section 105, I.P.C.197 The first
paragraph was enacted to address circumstances when the public servant might fall outside of
Section 332, I.P.C. In this case, Section 332 did not apply because the assault was committed
on him while he was performing a legal obligation.198 Section 99 of the I.P.C. establishes the
parameters within which the right to self-defence must be exercised. It does not empower the
offended party with fire and sword, but rather allows him to help himself only when a
reasonable fear of harm exists. The amount to which the right can be pushed is defined in
other sections. This part restricts the general norm established in the previous section, and its
purpose is to impose certain limitations; the first two paragraphs are specifically designed to
safeguard public employees, while the remaining two paragraphs are more broad. The
paragraphs in favour of public servants are based on the likelihood that their actions will be
legal, in which case resistance must be illegal; partly on the theory that resistance is
unnecessary because the law will correct what has been wrongfully done in its name; and,
finally, on the belief that it is good for society for public servants to be protected in the
performance of their duties, even if they are wrong.

195
‘Public Servant’ is defined under Section 21, Indian Penal Code, 1860
196
Puran Singh v. State of Punjab, AIR 1975 SC 1674
197
In re, Ganpathi Pillai, AIR 1953 mad. 936 at p. 937
198
Dalip v. emperor, ILR 18 All. 246, p. 252
The first paragraph applies to situations in which a public official is acting in good faith under
the colour of his office, even if the conduct he is performing is not legal. 199 Section 99 of the
I.P.C. expressly states that a public worker working in good faith under the colour of his
office has no right of private defence against a conduct that does not reasonably induce
apprehension of death or grave harm, if done or tried to be done on his command. The
protection extends even to conduct that are not precisely legal justifications.200 Section 99 of
the I.P.C. protects a public servant who acts in good faith under the colour of his position,
even though his actions are not exactly legal. However, there is a distinction to be made
between acts that are completely prohibited on the one hand and acts that may or may not be
absolutely legal on the other. Though a public official acts without authority, it is impossible
to say that he behaved in good faith and that his actions should be protected, even if they are
not absolutely legal. Illegal acts and acts conducted by a public servant without jurisdiction
are not protected by the law. The phrase "act not strictly justifiable by law" does not apply to
an act that is completely illegal and outside of the scope of the law. Section 99 of the IPC
applies to acts in which jurisdiction is wrongfully exercised, but not to acts in which
jurisdiction is completely absent.201

Acts performed under the supervision of a public official are discussed in the second
paragraph. It is not necessary for the doer to be a government employee. This paragraph must
be read in conjunction with Explanation two of Section 99, I.P.C.

Section 99, I.P.C., third paragraph, must be interpreted in conjunction with Section 105,
I.P.C., first clause. It imposes significant limitations on the exercise of the right to self-
defence. Because this privilege is only allowed for self-defence, it must not and cannot be
used when there is time to seek the protection of public authorities. The Supreme Court ruled
that a criminal's right to private defence cannot be utilised when authorities are readily
available and there is no need for the delinquent to take the law into his own hands. 202
Although it is true that going to a civil or criminal court would take time, the law requires that
if there is time to go to public authorities, those authorities must be sought first.203 However,
the law does not require a person to flee in order to seek the protection of public authorities
when he is attacked rather than defending himself.

According to the fourth paragraph of Section 99 of the I.P.C., the right of Private Defence is
limited to not causing more injury than is necessary for the purpose of defence. The amount of
force used must be proportional to the circumstances, and there is no protection if the harm is
caused by excessive aggression that is unrelated to the situation. The right to Private Defence
does not allow for the infliction of more injury than is required for the purpose of defence.
That right must be exercised in a reasonable manner. When it is exceeded, the alleged
defenders become criminally liable.204 The right to private defence granted by the penal code
is primarily one of defence or self-defence, not of retaliation or punishment.
It is subject to the limitations set forth in Section 99 of the I.P.C., which are just as
fundamental as the right itself. One of them is that the amount of harm caused in self-defence
must not exceed what is legally required for the purpose of defence. Furthermore, the right
begins and ends with the onset and existence of a reasonable fear of bodily harm from an

199
Dalip, (1896) 18 All 246, 252
200
Kanwar Singh v. Delhi Administration, AIR 1965 SC 871
201
Sawal Seth v. Emperor, (1933) 34 CrLJ 726
202
Lala Ram v. Hari Ram, AIR 1970 SC 1093
203
Parvathi v. State of Punjab, 1968 SC Cr 59
204
Sheo Lachan v. State of U.P., (1971) AllLJ 600
effort or threat to conduct the offence. It only works against a genuine, present, and urgent
threat.205

Explanation I wanted to protect those who may have acted inadvertently because they didn't
realise they were dealing with a government employee. A public servant's position will be
obvious to anyone who needs to interact with him if he wears a unique insignia or uniform. If
a public servant does not have a distinguishing insignia or uniform, he must first identify
himself before claiming special treatment. It would be adequate if he was accompanied by
people wearing badges that indicated his position or if he was already well-known in the area.
The rule undoubtedly applied to ordinary cases, and it is easy to imagine emergency situations
in which police officers might act without wearing their uniform; however, in such cases, it is
their responsibility to take steps to make it clear to the person they intend to arrest that they
are law enforcement officers. They cannot legitimately seek the court's protection if they do
not do so.206

Explanation II states that a person's right to private defence is not abridged when an act is
done, or tried to be done, under the supervision of a public official.

(a) unless he knows or has cause to think that the person doing the act is acting under such
direction; or (b) unless he knows or has reason to suspect that the person performing the act is
acting under such direction.

b) unless the authorization under which he acts is stated; or

(c) If he has written authority, unless he can show it if requested. If a person executing a
warrant is asked for the written authority, it must be produced. He is disqualified from
enforcing it if he cannot provide the authority. 207

4.2.1 AGAINST THE ACTS OF PUBLIC SERVANTS

The law with regard to public servant may be summarized as Stated below:

a) There is no right of Private Defence against a public servant who acts lawfully in the
exercise of his official responsibilities, for the simple reason that his behaviour is not an
offence.

b) If his actions are completely illegal, he is in the same position as any other private citizen
and is not entitled to any particular protection.

c) However, if the following requirements are met, protection is extended to activities by

public workers or others acting under their authority for direction that are not strictly
justifiable but are not entirely authorised:

i. That the act is not likely to result in death or serious injury;

ii. That the act is done in good faith;
iii. That the act is done under the colour of his office;
iv. That it is known at the time that the act is being done by a public servant as such or
under his authority

205
Onkarnath Singh v. State of U.P., AIR 1974 SC 1550
206
Emperor v. Abdul Hamim, AIR 1942 All. 74
207
Bhai Lal Chowdhury, ILR (1902) 29 Cal. 417
v. That the irregularity does not transgress the limit of being ‘strictly justifiable by
law’.208

4.2.1.1 WHEN ACTS ARE LAWFUL

To be protected by Section 99 of the Indian Penal Code, an act done or attempted by a public
official must be:
i. done in good faith,
ii. done under the colour of his position, and
iii. done even though the act is not precisely justified by law.

4.2.1.1.1 GOOD FAITH

"Nothing is claimed to be done or believed in 'good faith' which is done or believed without
adequate care and attention," says Section 52 of the Indian Penal Code. The moral aspects of
honesty and right motive, which are involved in the popular meaning of "good faith" and
which are predominant in the positive definition approved in previous Acts of the Legislature,
are not mentioned in this Section. On the other hand, Section 22 of the General Clauses Act,
1897, which applies to all Acts of the Governor General in Council and Regulations, states
that a thing is regarded to be done in good faith if it is done honestly, whether negligently or
intentionally. As a result, whereas an honest blunderer can operate in good faith under the
General Clauses Act, an honest blunderer can never act in good faith under the Penal Code for
negligence. Due care and attention imply a sincere endeavour to discover the truth rather than
a hasty acceptance of a false belief. Whatever the case may be, the question of good faith is a
matter of fact that must be determined based on the circumstances. Genuine belief without
reasonable grounds for belief is not synonymous with good faith; however, good faith does
not necessitate logical infallibility; rather, it necessitates due care and caution, which must be
considered in each case in light of the overall circumstances as well as the capacity and
intelligence of the person whose conduct is in question. The law does not demand the same
level of care and attention from everyone, regardless of their position.209 Good faith does not
necessitate logical infallibility, but it does necessitate proper care and prudence, which must
be examined in each case in light of the overall circumstances as well as the capacity and
intelligence of the individual whose action is under scrutiny. The concept of good faith in
criminal law differs from the concept of good faith in civil law. In terms of criminal law, an
act cannot be claimed to be done in good faith if it is performed without due care and
attention.

The Supreme Court declared in Kesho Ram v. Delhi Administration,210 that a public official
can claim immunity under Section 99, I.P.C. if he acts in good faith and under the colour of
his authority, even though the legality of the act cannot be supported otherwise. The appellant
struck an Inspector of the Delhi Municipal Corporation who had gone to collect the milk tax,
as required by Section 161 of the Corporation Act, and had seized his buffalo in the course of
his duties. For assaulting the Inspector, the appellant was found guilty. The appellant argues
that the seizure of the buffalo in failure of tax payment was an act of bad faith because no
notice of demand was provided to him as required by Section 154 of the Corporation Act. The
Inspectors were acting honestly in the exercise of the power entrusted to them by the
Commissioners, the court found, rejecting the appellant's allegation. Their attempt to recoup
208
Huda S.S., Principles of criminal Law in British India, TLL (1902) p. 388
209
Hari Singh Gour, The Penal Law of India, Vol. I, (1972), pp. 937-38. See also, Bhawoo Jivaji v. Mulji Dayal,
12 Bom. 377; Sheo Surah v. Mohd. Fazil Khan, 10 W.R. Cr. 20; Emp. v. Daya Shankar, AIR 1926 Qudh 398,
Public Prosecutor v. Rajammal, 1911-12 Mad.WN 479; Queen Empress v. Subba Naicker, 21 Mad. 249,
Krishnaya v. Emp, 1937 Mad.WN 569, Public Prosecutor v. Suryanarayana Reddi, 1937 Mad.WN 741
210
AIR 1974 SC 1158
the unpaid tax by seizing the animal was not wholly illegal, and they acted in good faith. In
the circumstances, Section 99 did provide protection to the corporation's employees who acted
in good faith while acting in their official capacity.

4.2.1.1.2 COLOUR OF OFFICE

"Under the colour of his office," that is, a genuine belief that it was a public servant's
responsibility to undertake the act, regardless of whether he was acting legitimately or
unlawfully in the performance of his duties. 211 The term "colour of office" refers to irregular
rather than unlawful behaviour. There would be no right of Private Defence if what was done
was done in good faith under the cover of his office. It demonstrates that the act was within
the scope of the jurisdiction, but that the jurisdiction was exercised improperly or on
insufficient grounds. In summary, the act was performed incorrectly, despite the fact that it
could have been performed correctly. In other words, the paragraph is not intended to cure a
lack of jurisdiction, but only an erroneous exercise of it, and that it is covered by this
paragraph when the error affects the procedure rather than the principle, such as initialling a
warrant instead of signing it, the mode of delivering possession, or the like.

4.2.1.1.3 NOT STRICTLY JUSTIFIABLE BY LAW

A public official operating in good faith and for conduct done under the colour of his office is
exempt from any claim of right of private defence unless there is a realistic fear of death or
serious bodily harm. Or, to put it another way, the right of private defence cannot be used
against a public official. There is a world of difference between activities that are supra vires
from the start and those that are not strictly legal. The phrase "not strictly justifiable by law"
isn't meant to cover up a lack of jurisdiction, but rather an erroneous application of it. The
Section does not apply in situations where the originating process and the authority under
which any public worker purports to act are completely devoid of jurisdiction. The paragraph
would cover an error that impacts the technique rather than the principle.
Explanation I wanted to protect people who may have acted inadvertently because they didn't
realise they were dealing with a public worker. There is no right to Private Defense when a
public official acts strictly in the course of his or her duties. The operation of Section 99,
I.P.C., unlike Section 183, I.P.C., extends to conduct that are not strictly justified by law. The
purpose of Section 99 is to safeguard a public servant by limiting the amount of resistance
that can be presented to him. Section 183, I.P.C., on the other hand, is not a section designed
to safeguard the public servant; rather, it empowers him to go on the offensive and prosecute
anyone who opposes the rightful seizing of property. It's one thing to say that a public servant
who is operating in good faith in the performance of his duties, even if he is acting outside of
his authority, is protected from assault. It's quite another thing to imply that a public worker
who is in fact wrong may prosecute anyone who peacefully opposes his wrongdoing.
Resistance to an act of a public officer acting in good faith but beyond his power may easily
result in an assault accusation, but it cannot provide any basis for a prosecution under Section
183, I.P.C. The language of Section 183 of the I.P.C. is very straightforward. It applies to
property taken by authorised authority of a public servant, and there are no words in that
section, as there are in Provision 99, I.P.C., extending the section's operation to activities not
strictly justified by the law. 212 The phrase "strictly" was purposefully introduced by the
legislators in Section 99, I.P.C. to show that this section was not meant to apply to
circumstances when the act was completely unjustifiable. It does not apply in circumstances
when jurisdiction is completely lacking.

211
487 Dalip v. Emperor, ILR 18 All. 246, p. 252
212
Sakharam Rawaji v. Emperor, 36 CrLJ. 1263
The Calcutta High Court stated in Bisu Haidar v. Emp.213 that the phrase "not strictly
justifiable by law" as stated in Mayne's commentary on criminal law appears to point to cases
where there is an excess of jurisdiction rather than a complete lack of jurisdiction, to cases
where the official has done wrongly what he could have done rightly, rather than cases where
the act could not have possibly been done rightly. In other words, the paragraph is not meant
to correct a lack of jurisdiction, but merely an erroneous exercise of it, and it will be covered
by the paragraph if the error impacts the method rather than the principle.

The Patna High Court noted in Jograj Mahto v. Emperor214 that it has been decided in a series
of decisions that Section 99, I.P.C. applies only where there is jurisdiction to conduct an act
but that jurisdiction has been improperly exercised in some areas. The phrase "strictly
justifiable by law" is used in this section. The word "strictly," which the Legislature must
have purposefully placed, indicates that this Section was not meant to apply in circumstances
when the act was completely unjustifiable. It does not apply in circumstances when
jurisdiction is completely lacking.

On 16.9.1961 in Kanwar Singh v. Delhi Administration,215 Mukhtiar Singh, Licensing

Inspector, organised a raiding force of around 12 people to seize stray livestock within the
corporation's bounds. About 25 or 30 stray cattle, including buffaloes and cows, were picked
up by the party. The three accused approached the party armed with lathis while they were
transporting the livestock to the Pound and threatened them with terrible consequences if they
did not release the cattle. They revealed their true identities and informed them that they were
carrying out their duties. They accused the raiding team, injured them, and were able to get
their livestock back. Based on these facts, the Supreme Court determined that the raiding
party's actions were strictly legal and that there was no right of Private Defence.

This part of the Section protects the public servant against the right of private defence even if
the authority is defective in minor particulars or if the officer exceeds his duty in a minor
particular, according to the Patna High Court in Puna Mahton v. Emperor,.216 It only leaves
the right of private defence open when the alleged authority is no authority at all and is wholly
defective in form or the officer goes clearly and widely outside the duties imputed to him. The
Section has no effect if the authority is without flaws.

4.2.1.2 WHEN ACTS ARE UNLAWFUL

In the instance of unlawful acts by a public official that are likely to result in death or serious
injury, resistance to such acts is unavoidable, because any redress available through recourse
to public authorities would be too late in such cases. Mayne in these states that connect:

"In the unlikely but plausible situation of an attempt to execute or flog the wrong men or a
man against whom no such sentence has been pronounced, Section 99, clauses (1) and (2),
I.P.C. would apply." In circumstances of other illegal acts without such consequences, the
right to resist will be determined by whether the public servant was acting in 'good faith'
under the colour of his authority, even if the act was not strictly legal."217

Public employees' actions can be classified into four categories:

i. when the warrant is legitimate but irregular;
ii. when there is no warrant;
213
11 CalWN 836.
214
AIR 1940 Pat. 696
215
AIR 1965 SC 871
216
AIR 1932 Pat. 315
217
Mayne John D. The Criminal Law of India, Madras, (1904), pp. 203-04
iii. when the warrant is good but the mode of execution is illegal; and
iv. when there is complete lack of jurisdiction from the start.

4.2.1.2.1 WHEN WARRANT IS LEGAL BUT IRREGULAR

In such a circumstance, the resistance will always be illegal, because there has been a
procedural error rather than a legal error. In Janki Prasad 218 resistance was provided in the
face of a court-issued arrest warrant that was sealed but just initialled rather than signed. It
was decided that there was no right to self-defence based on these facts.

The police are protected by a warrant issued by a competent Magistrate, even if it is irregular
in form, according to R. v. Allan,.219

In the instance of the Countess of Rutland,220 a peer was arrested for debt in execution of a
writ of arrest issued by the Court of Common Pleas, which clearly stated her position. The
Sheriff and his officers, however, were justified in carrying out the writ, despite the principle
that ignorance of the law is no excuse, because in some cases, such as contempt of Court,
such a writ can be issued against a peer, despite the fact that in England, a peer cannot be
arrested or imprisoned for a debt.

4.2.1.2.2 WHEN THERE IS NO WARRANT

When a warrant issued by a competent authority appears to be prima facie illegal, no one
should be required to comply with it. As a result, the resistance to such a warrant was deemed
justifiable.

The Calcutta High Court held in Debi Singh v. Queen Empress221 that disobedience to a
warrant describing the person to be detained as the son of a man who was not his father did
not constitute an offence.

In Basti v. State of Haryana,222 the top constable searched the accused home without a warrant
or legal permission. He attempted to molest the women. Based on these facts, the Court
determined that the accused had every right to inflict harm on the constable and apprehend
him in the exercise of their right to Private Defence.

Although a public officer's act may not be absolutely legal, the right of Private Defence
cannot be used against him if he acts in good faith under the colour of his authority. From the
beginning, it has been stated that there is a world of difference between the terms "not strictly
justifiable by law" and "acts illegal and supra vires." Prior to the Supreme Court's decision223,
the Allahabad High Court concluded in a case that the only effect of the warrant's illegality
would be that the police officer could not be deemed to have been acting in the course of his
duties within the meaning of Section 332 of the Indian Penal Code.224

4.2.1.2.3 WHEN MODE OF EXECUTION OF WARRANT IS ILLEGAL

Resistance appears to be legal under English law. In this regard, Hale observes:

218
8 All. 293
219
(1867), 17 LT(NS)222
220
6 Rep. 52
221
28 Cal. 399
222
1980 CrLJ. 92 (NOC)
223
State of Rajasthan v. Rehman, AIR 1960 SC 210
224
Khuda Bax v. State of U.P., AIR 1951 All 637
"Where a good warrant is executed in an unlawful manner, such as if a bailiff is killed while
smashing open a door or a window to arrest a guy; or possibly if he arrests on a Sunday and
causes a death, the killing is manslaughter, not murder."225

However, in Indian law, if a public worker acted in "good faith" under the colour of his
authority, he is entitled to protection under Section 99 of the Indian Penal Code.

4.2.1.3 LAW COMMISSION RECOMMENDATION

According to the Law Commission, public officials should be granted complete immunity
from all possible assaults by individuals exercising their right to private defence. The
commission stated that public officials are unprotected if they are assaulted while carrying out
a court order over which they have no jurisdiction. The question of whether the court that
issued the order that was carried out by a public official had jurisdiction is always debatable
and difficult to resolve. In many cases, no definitive decision can be reached unless the case is
submitted to the highest court. So long as his behaviour is in good faith, the subordinate
public officials carrying out the command should not be put in danger of bodily harm. 226 The
commission went on to say that extra-ordinary protection should only be granted when a
public worker is acting in the execution of what he believes is his legal authority. Public
officials are protected by existing regulations for their irregular activities, but they do not have
a right to private defence. However, the same cannot shield them from legal consequences of
their activities, whether due to a lack of jurisdiction or any other reason. In such instances, the
right to Private Defence against public workers will be applicable. As a result, the scope of
protection should be broadened to include all actions taken in good faith by public servants in
carrying out court orders.227 The exercise of the right to self-defence is acceptable if the
conduct committed by a public worker is wholly illegal, or if it is likely to result in death or
serious injury, or if his official character is unknown or unnoticed. The protection afforded to
public servants also extends to individuals working under their orders or authority. This is
founded on the principle that, in most cases, public servants will always behave in accordance
with the law. In the sake of the smooth operation of the state, no impediment should be placed
in their path when they in good faith appear to operate as public servants, even if they may not
act technically according to the law while doing so. It should be noted that the law does not
oblige a person to submit to any conduct of a public servant that is not absolutely legal if the
act causes the person to fear death or serious harm.

4.2.2 WHERE TIME FOR RECOURSE TO THE PROTECTION OF THE

PUBLIC AUTHORITIES

The rule requiring that, if at all feasible, the protection of public authorities be sought first is
one conceived in the public interest with the goal of eliminating private justice and
unnecessary violence. The right conferred by Section 97 of the IPC is specifically subject to
the restrictions of Section 99 of the IPC. In circumstances where there is time to seek
protection from public authorities, Section 99 of the I.P.C. states that there is no right to
private defence.228 The restriction is based on the fact that a person's right to Private Defence
allows him to defend himself and his property against an urgent threat when state assistance is
unavailable. Obviously, the need for self-help vanishes when somebody has numerous

225
Hale, Pleas of The Crown Vol. I, (1736), p. 458, Hawkins, Pleas of the Crown, (1795), p. 104
226
Law Commission of India: Indian Penal Code, 42nd Report, (1971), p. 102
227
Ibid
228
Mazidar Rahman v. State of Assam (1977) CrLJ. 1293
opportunities to seek help from the government.229 In such a case, rather than taking the law
into his own hands, a delinquent must consult official authorities. The time element under
Section 99, I.P.C., on the other hand, is based on the accused reasonable belief that the act
will be finished by the time the public authorities intervene, not on the gravity of the offence
threatened.230 The sheer proximity of the police station to the scene of the crime cannot
deprive a person of his right to private defence.231 As a result, the right to self-defence of one's
person or property can only be used when danger or injury is imminent. If the parties were
given advance notice of the imminent injury, they should contact the proper authorities. 232

In the case of Kabiruddin v. Emperor, Justice Romphiny articulated the law as follows:

When self-help causes or is likely to cause damage to another person's person or property,
self-help rights must be limited, and recourse to public authorities must be required. When a
person prefers to use force to safeguard property when he may easily have recourse to
governmental authorities to protect that property, the use of force is punishable under the
Indian Penal Code. Whatever such person's intentions may be, the law states that he may not
use force in such a situation. To hold otherwise would be to encourage and valorize rioting,
which is all too often in India. If an offender who could receive relief through the courts is
allowed to take the law into his own hands, the country will be "deluged (flooded) with
blood," in the words of Holloway, J. 233

4.2.2.1 STATUTORY REQUIREMENTS

Section 99 of the Indian Penal Code234 contains a specific clause that embodies this notion. It
goes like this:

"In circumstances where there is time to seek the protection of the public authorities, there is
no right to private defence."

An examination of the aforementioned paragraph demonstrates that there is no right to Private

Defense where there is time to seek protection from the government. This prohibition is in
place for both personal and property defence.

The following factors determine whether a person has enough time to report an attack to the
authorities:
i. Prior knowledge of the attack;
ii. The precision and reliability of such knowledge;
iii. Opportunity to report to public authorities; and
iv. Proximity of police station or other police with which report can be lodged.

The first and most important question to ask is whether the accused had prior knowledge or
warning of the attack. It is a well-established and widely accepted truth that in the event of
prior or antecedent information, the accused is psychologically prepared for self-defence and
is also mentally prepared to decide whether to go to the authorities or face the challenge. The
accused is typically expected to go to the authorities in such a case of prior knowledge. The
second issue to assess is whether or whether the so-called "antecedent information" is
accurate and dependable. Every piece of information isn't reliable, and it shouldn't throw the

229
Sampath v. State of Tamil Nadu (1993) CrLJ. 2468
230
State of Haryana v. Karan Singh (1996) CrLJ. 3698
231
State of Uttar Pradesh v. Haripal Singh (2000) All.L.J 1224
232
Ram Rattan v. State of Uttar Pradesh, AIR 1977 SC 619
233
1908 ILR 35 Cal. 368 (376)
234
Indian Penal Code (1860), Para. 3 of Section 99
accused head into disarray. Such knowledge or information comes from a very tangible
source. It is not necessary to panic and prepare for 'war.' It is necessary to confirm the
accuracy and trustworthiness of information or knowledge. The ability to approach
governmental officials is, of course, the third important aspect. Assuming that the antecedent
knowledge exists and is accurate and reliable, the critical question is whether the accused had
an opportunity. Could he get that much time, as well as the necessary facilities and means of
communication? Naturally, the fourth key consideration is inextricably tied to the third. It
refers to the distance between the police station and the public authority to be approached.
When the distance between the accused and the authorities is such that the accused may not
survive or the property may be destroyed in the meanwhile, reaching the authorities becomes
somewhat relevant. There's no way to answer all of these perplexing issues with a simple 'yes'
or 'no.' Every case must be assessed on its own merits. And each instance has its own unique
characteristics. In a broad sense, the concepts of one case can be extended to another.
However, when convicting or acquitting, the judge must delve deeply into the various issues
involved in the right of Private Defence, and then determine whether the accused case is
covered by the right of Private Defence or not, based on general principles and the peculiar
features of that particular case. The foregoing reasons will not be taken into account if the
attack was unexpected and unplanned, or if there was no way to contact public authorities, or
if help was not provided or not delivered in a timely manner. When a person's life or property
is in jeopardy, he or she can use his or her right to Private Defence to protect himself without
resorting to the government.

4.2.2.2 LAW COMMISSION RECOMMENDATIONS

While reviewing the provisions of the Indian Penal Code, the Law Commission of India
sought legal opinion on whether this prohibition should be preserved or removed. On this
subject, there was a very even split of views. The proponents of one viewpoint believed that
the current restriction on the exercise of the right to self-defence was required due to a
growing trend among the public to turn to self-help even while public authorities are there to
protect them. It was also stated that, given the current level of evidence of disregard for law
and order, removing this restriction will only increase the number of crimes and lead to
lawlessness. On the other hand, proponents of the other viewpoint said that current
circumstances necessitate an individual's right to private defence without relying on
government assistance. They went on to say that history demonstrates that no one can be
certain of receiving adequate protection from public authorities when they seek it, and that the
restriction tends to take away the right itself, defeating the Section's objective. However, in
light of the foregoing reasoning, the law commission decided to remove the prohibition,
stating:

Because so many different points of view have been expressed, deciding whether to keep or
remove the restriction is difficult. However, we believe that the balance favours eliminating
the third paragraph from a practical standpoint. While the law does not encourage self-help
for dubious purposes, self-defence is a different storey. In many circumstances, it is debatable
whether there was adequate time to seek the protection of public authorities, according to
experience. The premise that "detached reflection cannot be expected in the face of the
uplifted knife" justifies self-defence as a justification for doing an offensive act is the
assumption that "detached contemplation cannot be expected in the face of the uplifted knife."
If this is the case, the law should not require a person to carefully assess whether or not there
is adequate time to seek the protection of public authorities. We have not found any other
country's criminal codes that contain such severe restrictions on the right to self-defence. The
third paragraph should be removed, according to our recommendations.235 As a result of the

235
Law Commission of India: Indian Penal Code, 42nd Report, (1971), p. 103
recommendation to remove this prohibition, it was deleted from the planned Indian Penal
Code (Amendment) Bill 1972, but this bill has yet to become law.

4.2.3 RIGHT DOES NOT EXTEND TO CAUSING MORE HARM THAN

NECESSARY

Another limitation on the use of the right of private defence is that it should never be utilised
to cause more harm than is necessary for the purpose of defence. The amount of violence used
must not exceed what is required for self-defence. It must be proportionate to and
commensurate with the nature and quality of the behaviour it is meant to address. Because the
right is for protection rather than destruction, this is true.

It specifies that the right to Private Defence does not extend to the infliction of greater injury
than is required for the sake of defence. 236 It was held that there was no right of Private
Defence where the accused continued to assault the deceased after he had fallen down and
been rendered harmless. 237 There was a dispute between the workers and the management in
Mohinder Pal Jolly v. State of Punjab, 238 over wage demands. The factory was pelted with
brickbats by the workers. The factory owner walked out and opened fire with a handgun,
killing one worker. The Supreme Court ruled that the owner's right to private defence was
violated when he killed the worker.

The accused party in Baljit Singh v. State of Uttar Pradesh,239 was in possession of certain
disputed land. The complainant's group entered the property armed with lathis. The accused
attempted to preserve the land from trespassing, as a result of which the accused assaulted the
dead and caused 72 injuries, leading to the deceased's death. The accused was found to have
abused his right to private defence.

There was an episode of grappling between the accused party and the complainant party in
Onkarnath Singh v. State of Uttar Pradesh,240 After a while, the complaint party began to flee.
The accused, on the other hand, pursued them and assaulted them with a savage assault. The
Supreme Court determined that the two episodes, namely the initial grapping between the
parties and the subsequent deadly assault, were two independent incidents in terms of time
and space. There was no logical progression of events to warrant the heinous assault. The
assault was described as "very spiteful and maliciously excessive" by the judge. The force
utilised was excessive in comparison to the alleged threat posed by the complaining party,
which no longer existed.

The question of whether an accused right to private defence was exercised in excess of his
right, and if the accused caused more injury than was required, is wholly a matter of fact that
must be evaluated based on the facts of each case. 241 True, in the case of violence, a person's
right to use in defending himself or his property should not be disproportionately
disproportionate to the injury that could have been avoided, or that could have been fairly
anticipated, and should not exceed its legitimate aim. The right to self-defence must never be
used for vengeful or evil purposes.242 A person who does a vengeful or malicious act does so
with the intent of exacting revenge rather than to protect himself or his property.243 A person's

236
State of Uttar Pradesh v. Ram Swarup, AIR1974 SC 1570
237
Patil Hari Meghji v. State of Gujarat, AIR 1983 SC 488
238
AIR 1979 SC 577
239
AIR 1976 SC 2273
240
AIR 1974 SC 1550
241
George Dominic Varkey v. State of Kerala, AIR 1971 SC 1208
242
Jai Dev v. State of Punjab, AIR 1963 SC 612
243
State of Assam v. Abinash Dutta (1982) CrLJ. 400 (Gau.)
right does not allow him to pursue and murder an assailant who is fleeing the scene. 244
However, there is little doubt that when analysing a person's actions after proving that he had
a right to Private Defence, consideration must be given to his feelings at the moment. He is
confronted with an assault that leaves him with a reasonable fear of death or serious injury,
which inevitably provokes excitement and uncertainty in his thinking. At such a time, the
foremost thought in his mind would be to fend off the threat and save himself or his property,
and he would naturally be eager to use his right to strike a devastating blow. It is undeniably
true that he should not use more force than appears to be fairly necessary when dealing a
decisive blow. However, when judging whether more force was used than was required or
justified by the circumstances, it would be incorrect to utilise detached objective tests that
would be so natural in a courtroom, for example, long after the incident has occurred. As a
result, it has been stated in several judicial rulings that the tactics used by a threatened person,
or the force used by him, should not be weighed in golden scales. 245 When a person's life or
the lives of others is in jeopardy, he is not expected to weigh the exact force required to fight
the danger in golden scales. As a result, the law allows a defender to exercise his right of
Private Defence a bit further in the heat of the moment than would be necessary if computed
with accuracy and exactitude by a calm and unruffled mind. 246 A person confronting a
legitimate fear of attack cannot be expected to modify his defence step by step with any
arithmetic precision of simply that which is demanded of a man's thinking in regular times or
under ordinary conditions. It is often difficult to expect a person to maintain composure and
employ exactly the amount of force in reprisal proportionate with the risk he perceives when
assault is impending by use of force in periods of excitement and disturbed equilibrium. 247

In such cases, a court must look at the facts and circumstances of a case pragmatically rather
than using high-powered spectacles or microscopes to find little or even marginal
overstepping by a person exercising his right to Private Defence. The court must give
sufficient weight to the pragmatic facts that occurred on the spur of the moment on the spot
and avoid a hyper technical approach in considering them, keeping in mind the normal human
reaction and behaviour.248 First and foremost, the person exercising his right to self-defence
must determine if the harm to his person or property is serious and immediate. He is entitled
to exercise his privilege if he reasonably concludes that the threat is immediate and real. In
exercising his right, he must use only the force necessary to accomplish the goal, and he must
cease using force as soon as the threat has passed. The right to Private Defence can be
properly used as long as the threat exists. It would not be reasonable to expect him to regulate
his defence step by step, according to the attack, before there is cause to believe the offensive
is over, as Mayne has suggested. The law of Private Defence does not require the person who
has been assaulted or is under suspicion of being assaulted to flee for their own protection. It
gives him the right to use all necessary force to defeat his aggressor. This necessitates the
assumption that after the cause for reasonable anxiety has vanished and the threat has either
been removed or defeated, there can be no need to employ the right of Private Defence. If the
danger or the worry about it is still there, the right to Private Defence exists; if the danger or
the apprehension about it is no longer present, the right to Private Defence is no longer
available. 249

The amount of harm that must be caused in self-defence varies from case to case and
depending on the circumstances in which the defender finds himself. It's difficult to set a hard

244
Ram Narain & Others v. State of Uttar Pradesh, AIR 1972 SC 2544
245
Mohd Ramazani v. State (Delhi Administration), AIR 1980 SC 1341
246
V Subramani v. State of Tamil Nadu (2005) 10 SCC 358
247
Bishna @ Bhiswadeb Mahato & Others v. State of West Bengal, 2005 (9) SCC 1679
248
James Martin v. State of Kerala (2004) 2 SCC 203
249
Jai Dev v. State of Punjab, AIR1963 SC 612
and fast rule for deciding whether or not the harm is excessive. The facts of each instance
would determine this.

4.2.3.1 MANDATORY REQUIREMENTS

Two criteria decide the use of force and its reasonableness:

i. if an actual danger occurred or was reasonably believed to exist that needed its use,
and
ii. whether it was actually or fairly considered to be necessary and suitable.250 According
to Williams, the use of force in the exercise of the right to Private Defence must meet
two conditions: i. the use of force is essential to prevent the danger, and (ii) the kind
and quantity of force used by the defendant is necessary. When attack is attempted or
directly threatened, a person who is in imminent and reasonable risk of losing his or
her life or limb may inflict any injury, including death, on the aggressor. This principle
is also subject to the condition that the harm or death inflicted in order to avert the
danger is not significantly disproportionate to the quality and nature of the perilous act
or threat to be averted.251

In this case, Justice Holmes describes the law as follows:

"Many respected scholars agree that if a man rationally believes he is in imminent danger of
death or grievous bodily damage from his adversary, he may stand his ground, and that if he
kills him, he has not gone beyond the limitations of justifiable self-defence." This Court has
reached this conclusion."252

However, caution dictates that the true need to kill an enemy in self-defence be demonstrated.

4.2.3.2 HARM CAUSED MUST BE PROPORTIONATE

Harm caused in the course of exercising private defence must be proportional to the threat of
injury to the accused. The law is not based on a retaliation notion. The strikes he suffered, as
well as the blows the attackers may have delivered, and any additional injuries he may have
had, must all be reviewed to see if his right to private defence has been violated in any way. 253
The right to Private Defence is a statutorily limited defensive privilege that can only be
exercised when the circumstances plainly justify it. It should not be used or accepted as a gift
for vengeful, hostile, or retaliatory purposes. Under no event does the right to private defence
allow for the infliction of more harm than is necessary in the circumstances.254 In one
example, a member of the complaining party died of an injury that the doctor determined was
not deadly. The complainant party trespassed on the accused property, infringing on his right
to private defence. The right to self-defence was not infringed upon. The defendant was found
not guilty. 255

4.2.3.2.1 JUSTIFIABLE HARM

The degree of force that is justified may then be determined not only by the nature of the risk
that is really present, but also by the nature of the danger that is anticipated. And, in addition
to the necessity of the violence used, the man's thoughts at the time, such as his inflated sense
of danger, his lack of self-possession, and his uneasy state of mind, must all be considered.

250
Edward M. Dengel, Criminal Law, Boston, (1951), p.167
251
13 CW no. 1180
252
Brown v. United States (1921) 256 U.S. 335 (343)
253
Rahmat Ali v. State, AIR 1953 All 338
254
Munney Khan v. State of Madhya Pradesh, AIR 1971 SC 1491
255
Devilal v. State of M.P., (1991) 3 Crimes 536 (MP)
It is extremely difficult to describe the form of force used in the exercise of a person's right to
Private Defence in order to defend his or her person or property. Indeed, expecting a person
exercising this right in good faith to weigh "with golden scales" the greatest amount of force
required to stay within the limit is unrealistic. Every reasonable concession should be made
for the bona fide defender "if he continues his defence a bit further than may be practically
necessary in the circumstances to avoid the attack with the instinct of self-preservation strong
upon him." It is impractical to expect a person under attack to gradually adjust his defence in
response to the attack.256

The Supreme Court ruled in Puran Singh v. State of Punjab: 257

"It is not the law that, when confronted with an assault, a person must flee to the police station
and not defend himself, or that, when his property has been subjected to trespass and
mischief, he should allow the aggressor to take possession of the property while fleeing to the
public authorities." When there is an element of invasion or aggression on the property by a
person who does not have a right to ownership, there is clearly no place for recourse to the
authorities, and the accused has the unquestionable right to resist the attack and use force if
necessary."

The Supreme Court stated in Ram Pant v. State of Haryana: 258

"The core concept underlying the idea of the right to private defence is that when an
individual or his property is threatened and quick assistance from the state machinery is
unavailable, the individual has the right to defend himself and his property." As a result, the
required conclusion is that the violence that a citizen is permitted to use to defend himself or
his property must not be disproportionately disproportionate to the injury that is sought to be
avoided or that is reasonably anticipated, and it must not exceed its legitimate aim. We should
add, however, that the measures and power used by a threatened individual on the fly of the
moment to fend off danger and preserve himself or his property cannot be measured in golden
scales. It is neither practicable nor prudent to establish abstract guidelines that can be used to
judge whether the threatened person's measures and force were appropriate. The answer to
such a question is dependent on a number of elements, including the current circumstances at
the scene, his feelings at the moment, the level of confusion and excitement based on the type
of the assault on him, and so on.

4.2.3.2.2 EXCESSIVE HARM

There is no hard and fast criterion for determining the degree of harm that is legally justifiable
in the exercise of the right to self-defence. Individual instances will have to be evaluated
based on their own unique circumstances. When accused persons have the right to private
defence, they are justified in employing responsible force against assailants' hostile activities,
provided that they do so within the legal boundaries. They will lose the protection they have
been granted if they exceed the restrictions, and they will be held responsible for the excess
they have committed. The Supreme Court emphasised the phrase "within the limits provided
by law" in State of Bihar v. Nathu Pandey259. This clearly demonstrates that no offence is
committed as long as the force and is within the limits.

256
Yogendra Moraraji v. State of Gujarat, AIR 1980 SC 660
257
AIR 1975 SC 1674
258
AIR (2009) SC 0978
259
AIR 1970 SC 27
A review of the facts in cases where appropriate force was employed in the exercise of the
right of private defence indicates the following pattern:

i. If a permanent water course is built without his agreement, the landowner has the right
to use sailas, dang, kulhari, and other similar activities;260

ii. A person in possession who is attacked by a trespasser has the right to use lathi
blows;261

iii. Villagers trespassing on the accused land and erecting a dwelling on his land permits
him to utilise Tangia;262

iv. The accused possessor's cultivation of crops on the land authorises him to employ
lathes against the trespasser;263

v. Two people cutting down the tree gave the accused the right to use force against the
assailant with a lathe;264

vi. When a crop planted on disputed territory is damaged, the accused is authorised to use
force to the point of killing;265

vii. A rowdy throng threatens the accused, prompting him to use excessive force to the
point of killing the attackers;266

viii. When a wife is molested, the husband feels compelled to employ force against the
perpetrator;267

ix. Where the deceased, along with his father, was erecting a fence, and the accused,
when resisted, assaulted him and caused injuries, and the accused, in order to protect
himself, swung the lathi which killed the deceased, the plea of self-defence was
accepted, and the accused was acquitted of the charge of murder;268

x. When an accused was forced to the ground and threatened to kill him, and only the
accused struck the victim once, when a "party of armed men attempted to demolish the
cow-shed," the accused was granted the right to Private Defence. The judge upheld his
acquittal. 269

xi. Where there was gunfire between parties and the accused reasonably saw a threat to
his father's life and fired bullet in self-defence, his act would be covered under the
right to Private Defence;270

xii. Where a funeral procession was taken to a cremation ground through a school's
precinct and members of the procession were interrupted by school teachers who then

260
Hetram Lallu Singh & others v. State, AIR 1970 P&H 85
261
State of Orissa v. Rabindranath, 1973 CrLJ 1986 (Orissa)
262
Iswar Bhera v. The State, 1976, CrLJ 611 (Orissa)
263
Bhajan Sana v. The State, 1975 CrLJ 1584 (All.)
264
Ram Manorath v. The State, 1971 CrLJ 1584 (All.)
265
AIR 1975 SC 1674
266
Amjad Khan v. The State, AIR 1952 SC 165
267
48 Cut. LT 53 At p. 58
268
Sridhar Das v. State of Orissa, 1992 CriLJ 2907 (Orissa)
269
State of M.P. v. Mishrilal, 2003 CrLJ 2312 (SC)
270
State of Gujarat v. Allarkha Khamisa Mansuri, 1999 CrLJ 4937 (Gujarat)
 used arms and shots, and there was no easementary right available, the accused can be
said to have acted in the exercise of their right of property defence. 271

On the other hand, the courts have determined that excessive force was employed in the
following set of circumstances:

i. A person with lathis repels an assault by inflicting lethal injuries with a dangerous
weapon, such as a taigas. 272

ii. Housebreaking - three people broke into the house at night and the accused killed one
of them with a dao;273

iii. Hitting the deceased with a spade while he was causing havoc by improperly diverting
water.274

iv. Witnessing the thief cutting the crop in the dead of night and the accused striking the
thief with a lathi blow to the head;275

v. Witnessing the dead sitting on the brother's chest and the accused striking him twice
with "Jambia," resulting in his death.276

vi. Where the accused's claim that they injured the dead in the exercise of their right to
private defence because the property in issue was in their control and the deceased was
attempting to evict them was not supported by evidence, the accused's conviction for
murder was upheld. 277

vii. No right of Private Defense emerged for accused when he permitted his buffalo to
graze in the field of deceased, even though he was not entitled to do so, and when
deceased drove the buffalo out of his field, accused assaulted deceased and another
person who came to help.278

The major objective of this restriction, as shown in the preceding discussion, is to maintain
the right of Private Defence within its confines and to prevent misuse of the right, which is
defensive rather than retributive. As a result, in exercising the right, reasonable force should
be employed. Inflicting more harm than is necessary in the circumstances is not a good idea.
However, neither the legislative nor the judiciary have established a yardstick to assess the
amount of force that can be used in self-defence. The amount and form of force to be
employed in exercising the right to self-defence would be determined by the unique
circumstances of each case. In that sense, there are no hard and fast rules that may be applied
to the right of private defence. Only where all of the relevant circumstances of the case
indicate that the amount and character of the force employed by him was wholly
disproportionate to the force actually required to fend off the apprehension of danger would
he be held to have exceeded his right to Private Defence. The quantity and type of injuries
caused by an accused would not be conclusive in determining whether the accused had
exercised his or her right to self-defence. The Court must assess the right and the force

271
State of U.P. v. Haripal Singh, 2000 CrLJ 3022 (All.)
272
1973 CrLJ 117
273
Padmeswar Phukan v. State, 2001 CrLJ 1955 at 1596
274
1960 CrLJ 741
275
22 CrLJ 741
276
AIR 1969 SC 956
277
Parbati Marandi v. State of Bihar, 2006 CrLJ 3551 (Jhar)
278
Nankahoo v State, 1998 CrLJ 2890 (All.)
actually used in exercising the right, as well as the force regarded suitable in the
circumstances of a particular case, from the perspective of the accused, not a bystander. It
would be unreasonable to expect the accused, in his current condition, to analyse the nature of
the attack to be defended at any given time and adjust his defence accordingly.

4.2.3.2.2.1 CONSEQUENCES OF EXCESSIVE HARM

In general, the consequences of violating the right to private defence can be separated into
two types: homicidal and non-homicidal. Excessive exercise of the right to private defence in
both of these areas is divided into three categories. First, incidents in which the accused used
force in self-defence but inflicted more harm than necessary owing to a mistake in judgement
or a loss of self-control in the heat of the moment or the suddenness of the situation. Second,
when unnecessarily harmful or injurious harm is delivered after the threat of danger has
passed. The third category includes cases in which the accused actions and the circumstances
of the case demonstrate that the accused meant to do more harm than was required from the
start. In the last category of cases, the issue of mitigation in light of the wrongdoer's
malfeasance does not usually arise. In such instances, the right to self-defence serves simply
as a cover for illegal behaviour. In the second class of cases, whether or not the question of
mitigation arises is dependent on the presence or absence of mala fides on the part of the
person claiming the right of Private Defence. Where the act in excess of the justifiable limit
proceeds from or is a result of a spirit of revenge, reprisal, or retaliation, or is by its very
nature extremely reckless or cruel, it is hardly distinguishable from an act falling under the
last category and there is no occasion for However, leniency may be shown in cases where the
act in question is the result of an apprehension of danger continuing in circumstances that a
person of ordinary reason would not consider continuing, or the result of an apprehension of a
renewal of attack for which there is no sound foundation or basis. The topic of mitigation or
leniency can only be properly raised in the first class of situations, i.e. cases in which more
than required harm is produced in the exercise of a bona fide right of Private Defence without
any intention of creating such harm. The right to self-defence is founded on three major
principles: First and foremost, no more injury must be inflicted than is required for defence.
Second, there must be a reasonable fear of bodily harm as a result of an effort or threat to
conduct an offence, and finally, the right does not begin until there is a reasonable fear. 561
The amount of force that can be used and the amount of harm that can be inflicted are
determined by the facts of each case. When determining whether the right to self-defence has
been surpassed, the nature of the attack, the risk seen, the imminence of the perceived danger,
and the true necessity of inflicting harm by retribution are all factors to consider. However,
distinguishing between the use of force in the right of Private Defence and excessive self-
defence is challenging. It cannot be ascertained solely by counting the number of people on
each side or the number of self-defence blows delivered. The justification for self-defence
may be based on the cumulative effect of all of the foregoing factors, including the force used
in this instance. Courts have developed specific tests based on the facts of each case.
However, a review of the Court's decisions demonstrates that it does not use a consistent
yardstick.

4.3 WHEN THE RIGHT OF PRIVATE DEFENCE EXTENDS TO

CAUSING DEATH

Section 100, I.P.C., states that any of the seven conditions listed in the recently modified in
2013 must exist. In Section 100, the right of private defence can be expanded to include the
right to kill, which is a logical extension of the idea of necessity. The essential premise of
Section 100 is that no one should be convicted of something they are not guilty of. If a person
commits an offence in defending his person or property rather than fleeing the scene, the law
has given him the right to defend himself or anyone in whom he has an interest, even if he is
in danger of losing his life, and if he acts bravely in warding off that apprehension rather than
fleeing the scene like a coward, the law presumes that he will not be held responsible for such
an offence, and thus he will not As a result, it is the court's responsibility to determine
whether the accused is innocent or not, taking into account their actions in defending their
person and property. If the court is not given this obligation, the result will be a conviction,
which is contrary to the fundamental principles of criminal law. As a result, in deciding the
case, the courts must determine whether the accused actions are protected under Section 100,
even if he has not entered a plea in his defence. 279

The I.P.C. Section 100 authorises the taking of life. There are four cardinal conditions that
must be met in order to be authorised:

To begin, the accused must be without fault in causing the encounter;

second, there must be an impending danger to life or great bodily harm, either real or apparent
enough to create honest belief in an existing necessity;
third, there must be an impending danger to life or great bodily harm, either real or apparent
enough to create honest belief in an existing necessity;
fourth, there must be an impending danger to life or great bodily harm, either real or apparent
enough to create honest belief in an existing necessity; and
finally, there must Third, there had to be no safe or reasonable way to flee through retreat; and
fourth, there had to be a compelling motive for killing life. 280

Even against the act of a person of unsound mind, everyone has the right to private defence,
subject to Section 99's limitations. The only assaults listed in Section 100 and qualified by
Section 101 that would warrant killing are those listed in Section 100 and qualified by Section
101. In the case of attack, however, the individual in question will lose his right to Private
Defence if he goes above the limitations, which are (a) he did not inflict more harm than was
required, and (b) he had a realistic fear of death or grave harm. In the case of attacks, the party
in question must also prove beyond a reasonable doubt that the assailant intended to commit
the offence listed below in order to maintain the plea of Private Defence.281

4.3.1 IN CASE OF BODY

The Indian Penal Code makes it clear that the right to private defence includes the ability to
cause death282. It goes like this:

"The right of Private Defence of the Body extends, subject to the limitations set forth in
Section 99 of the I.P.C., to the voluntarily infliction of death or other harm on the aggressor if
the offence that prompts the exercise of the right is of any of the categories below stated,
namely:

First, any assault that could reasonably lead to the belief that death will result as a result of the
assault;

Second, such an assault as may reasonably give rise to the fear that serious harm may result as
a result of the assault;

279
Murali v. State of Tamil Nadu, AIR 2001 SC 413
280
State of Karnataka v. Shiv Shankar, (1978) SCC 1679
281
Sampat v. State, 1993 CrLJ 2468
282
Section-100, The Indian Penal Code, 1860
Third, an assault with the purpose to rape someone;

Fourth, an assault with the goal of satisfying an abnormal craving;

Fifth, an assault with the goal to kidnap or abduct someone;

Sixthly, an assault with the goal of wrongfully confining a person under conditions that may
reasonably induce him to believe he will be unable to seek relief from the public authorities.

Seventh.-An act of throwing or administering acid, or an attempt to throw or administer acid,

that may fairly induce the apprehension that grievous harm may result otherwise.

This provision is largely in line with English law, which holds that the offence listed in the
section provides sufficient grave provocation to justify homicide.

Each of the first six clauses of section 100, I.P.C. refers to an assault, which is a crime against
the human body, whereas the seventh clause refers to the act of throwing or administering
acid, or an attempt to throw or administer acid, which may reasonably cause the apprehension
that grievous harm will result otherwise. So, before the extended right under Section 100
arises, there must be an assault, and the assault must be one of the six types listed in the first
six clauses of the section, whereas the act of throwing or administering, or an attempt to do
so, must be done in a way that reasonably causes the apprehension that grievous harm will
otherwise result. There is an offence against the human body, meaning assault, in each of the
first six clauses of Section 100. So the right of Private Defence arises against that offence, and
Provision 100 states that if the assault is of an aggravated nature, as defined in that section,
the right of Private Defence extends even to death. The fact that several of the clauses in
Section 100 contain phrases like 'grievous injury,' 'rape,' 'kidnapping,' and 'wrongfully
confining' to describe the nature of the attack does not entail that the intention with which the
assault is perpetrated must always be an offence in itself. The terms used to indicate the
intention in several other clauses do not constitute an offence under the I.P.C. The first clause,
for example, states that the attack must be such that a reasonable person may fear death. In
I.P.C., death is no longer considered a crime. As a result, when the word 'abducting' is used in
section 5, it does not have to be an offence in and of itself in order for that clause to be
invoked by or on behalf of a person who is assaulted with the aim to abduct. All the clause
requires is that there be an assault that is an offence against the human body, and that the
assault be with the goal of abducting, and the clause will apply whenever these factors are
present.283

4.3.1.1 REASONABLE APPREHENSION OF DEATH OR GRIEVOUS HURT

SUFFICIENT

The 'first' clause of Section 100 states that where an assault legitimately generates the
apprehension that death will otherwise result from the assault, the right of Private Defence of
the body extends to inflicting death. The 'second' clause states that where an assault generates
a reasonable fear that grave harm would result as a result of the assault, the right of Private
Defence extends to the causing of death. To qualify for the exception to criminal culpability
provided by this section, it must be proven that there were reasonable circumstances giving
rise to a reasonable fear of death or grievous bodily harm. 284 Such a fear of death or serious
injury must be real or rational, not illusory or fictitious. It must be current and impending,

283
Vishwanath v. State of Uttar Pradesh, AIR 1960 SC 67
284
Kulwant Singh v. State of Punjab, AIR 1994 SC 1271
rather than distant and distant.285 The reasonable fear of death or serious injury to the accused,
on the other hand, must be determined from the accused subjective point of view and cannot
be subjected to microscopic and pedantic inspection.286 Surmises and hypotheses cannot be
used to support a claim of right to private defence.287 If the accused does not protect himself,
he must have a genuine fear of death or serious injury as a result of the assault. 288 Only an
honest and well-founded belief in the imminence of the danger would justify killing in the
exercise of the right to Private Defence. 289 It is not necessary for the attacker or the victim to
have caused physical injury before the right of self-defence can be exercised.290 It is not
necessary for a person who detects danger to wait until they are injured. For the purposes of
exercising his right to Private Defence, just reasonable apprehension is sufficient.

The right to Private Defence is based on the basic idea that if a crime is being attempted by
force, it is legal to repel that assault in Private Defence. To imply that a person might only
claim the right to use force after suffering a significant injury as a result of an aggressive
wrongful act is to misunderstand Section 100 of the law. The right to private defence is
provided to guard against unlawful violence that has been detected, not to punish the attacker
for the crime he has done. If there is no fear of future harm to the body after incurring a
serious injury, the right to put defence is definitely not available. As a result, the right to
Private Defence can be used as soon as a reasonable fear of danger emerges. 291 Whether there
was a reasonable fear of death or serious injury is always an issue of fact that must be decided
based on the facts and circumstances of each case. 292 In the case of Amjad Khan v. State293, a
sectarian riot erupted between Sindhi refugees and local Muslims. Several Muslim businesses
had been smashed into and looted, and several people had been killed. The crowd had stormed
into another portion of the house where the accused lived and looted it; the accused family's
women and children fled to him for safety. The horde was pounding on his door with lathis. In
these circumstances, the Supreme Court ruled that the accused did not need to wait to see if
the mob would actually damage and loot his shop and murder his family. The mob's actions
implied a threat, and the accused had a right to private defence and was justified in firing two
shots, one of which killed one person.

When the deceased and the accused had a verbal disagreement and the deceased removed his
left leg's shoe, the accused felt insulted and dragged him to the middle of the road, stabbing
him. The Supreme Court ruled that holding a shoe could not generate a reasonable
apprehension of danger in the accused mind, and thus the accused was not entitled to a Private
Defence plea. 294

Whether the suspicion was reasonable or not is always a matter of fact that must be
determined based on the facts. In such a circumstance, the question is not whether there was
real risk, but whether there was a reasonable fear of such danger.295

It is not essential for the infraction to have been committed in order for the right of Private
Defence to be invoked. It is sufficient if the accused suspects that such an offence is being

285
Rameshwar v. State (Delhi Administrartion) (1981) CrLJ. 1125
286
Wassan Singh v. State of Punjab, (1996) CrLJ. 878
287
Sekar v. State of Rajasthan, 92003) CrLJ 53
288
State of Gujarat v. Dhiria Bhabji, AIR 1963 Guj. 78
289
Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 414
290
Puran Singh v. State of Punjab, AIR 1975 SC 1674
291
Deo Narain v. State of Uttar Pradesh, AIR 1973 SC 473
292
Puran Singh v. State of Punjab, AIR 1975 SC 1674
293
AIR 1952 SC 165
294
State of U.P. v. Zalim, AIR 1996 SC 3278
295
Devi Singh Bapu Singh v. State, AIR 1955 CrLJ. 471
considered and will be committed if the right to Private Defence is not asserted.296 For self-
defence, the right to Private Defence has been established. Therefore, even if a person avoids
serious harm or death as a result of exercising this right, it cannot be argued that he had no
expectation of suffering or death if he did not act in self-defence.297

4.3.1.2 ASSAULT WITH INTENTION OF COMMITTING RAPE OR GRATIFYING

UNNATURAL LUST

Section 100, clauses 'thirdly' and 'fourthly,' stipulate that the right to private body defence
extends to inflicting death in circumstances of attack with the aim to commit rape or please
desire. The minor daughter of the accused went to the toilet on the back side of the home in
Yeshwant Rao v. State of Madhya Pradesh,298. The deceased apprehended her and had sexual
relations with her. When the accused saw his underage daughter being raped by the deceased,
he struck him with a spade. In an attempt to run, the deceased fell and collided with him. He
died as a result of a liver damage. The prosecution claimed that the juvenile girl had given her
assent to the sexual activity. The Supreme Court ruled that because the girl was a minor, the
issue of 'consent' did not arise, and the deceased's behaviour amounted to rape, therefore the
father was justified in using his right to Private Defence in defence of his daughter's body.
The defendant was found not guilty.

In Badan Nath v. State of Rajasthan, 299 the Rajasthan High Court granted the benefit of
Section 100, third, to a parent who killed a person who was attempting to rape his pregnant
daughter while the prosecutrix was away. The High Court also acquitted a man who rescued a
woman from sexual assault and delivered a death blow to the deceased, who was insulting the
woman's modesty. 300 Similarly, a lady who stabbed a guy who engaged in forced and non-
consensual sexual intercourse with her was granted Section 100 protection.301 A fear of
simple injury does not entitle a person to employ private defence to cause death or serious
harm. 302

4.3.1.3 ASSAULT WITH INTENTION OF KIDNAPPING OR ABDUCTING

Section 100, clause 'fifthly,' states that in circumstances of attack with the aim to kidnap or
abduct, the right of Private Defence of the body extends to inflicting death.

The term 'abducting' refers to abducting as a criminal offence under the Indian Penal Law, not
just the act of abduction as described in section 362 of that code. Because mere abduction is
not a crime, it cannot give rise to a right of Private Defence, and the enlarged right of Private
Defence provided by Section 100 can only be exercised if the offence that causes the right to
be exercised is one of the types listed in Section 100. Section 97 establishes a person's right to
private defence against any crime involving the human body. Section 99 states that the right
to private defence does not include the infliction of greater injury than is required for the
purpose of defence. In circumstances when the offence that prompts the exercise of the right
is of any of the categories mentioned in Section 100, the person has an enlarged right of
Private Defence. Only when an offence against the human body occurs does a person's right
to private defence exist. Offenses involving the human body are found in Chapter XVI of the
Penal Code, from Section 299 to Section 377, and include crimes involving the use of

296
Pagla Baba v. State, AIR 1957 Orissa 130, p. 150
297
Bhajaram v. State, 1958 M.P.L.J., p. 119
298
AIR 1992 SC 1683
299
(1999) CrLJ. 2268 (Raj.)
300
Bhadar Ram v. State of Rajasthan (2000) CrLJ. 1174
301
State of Orissa v. Nirupamma Panda (1989) CrLJ. 621
302
Janab Ali Shaikh v. State of West Bengal, 1992 CrLJ 2530
unlawful force and assault. Abduction is also defined in Section 362 of Chapter XVI.
Abduction occurs when a person forcibly forces or deceitfully persuade another individual to
leave a particular location. However, the Penal Code does not make abduction a crime in and
of itself. Only abduction with a specific aim is considered a crime. Section 364 applies if the
abductees’ is being held with the aim of being murdered or being put in danger of being
murdered. Section 365 applies if the goal is to inflict covert and unlawful imprisonment.
Section 366 applies if the abducted person is a woman and the purpose is for her to be coerced
or persuaded into illicit intercourse or is likely to be forced or seduced into illicit intercourse.
Section 367 applies if the goal is to cause grievous harm or to dispose of the person abducted
in such a way that he is in danger of being subjected to grievous harm or servitude to the
unnatural lust of any person. Section 369 applies if the abducted individual is a youngster
under the age of ten and the goal is to take dishonestly any transportable property from their
person. The fifth clause of Section 100 is stated to have no application unless an offence
under one of these sections is likely to be committed. On a simple reading of that clause,
however, there appears to be no reason to believe that the term "abducting" means anything
other than what is specified as "abduction" in Section 362. True, the right to private person
defence exists only when a crime against the human body is committed. Each of the first six
sentences of Section 100 refers to an attack, which is a crime against the human body. So,
before the extended right under section 100 can be invoked, there must be an assault, and that
assault must be one of the six sorts listed in the section's six clauses.

Furthermore, the definition of 'abduction' is divided into two parts:

i. abduction where a person is forced to leave a location, and
ii. abduction where a person is encouraged to leave a location by any deceptive methods.

Now, the fifth clause of section 100 only refers to abductions using force, and where the
assault is carried out with the goal of abducting, the right of Private Defence that emerges as a
result of such an assault extends even to death. It would be unreasonable to expect a person
who is being kidnapped by force to halt and examine if the kidnapper has any other intentions,
as defined in one of the Penal Code's Sections, before taking efforts to defend himself, even if
that means killing the kidnapper. The Code's architects understood that abduction was not an
infraction in and of itself unless it was linked with some other intent. Even so, the word
'abducting' has been used without qualification in the fifth sentence of Section 100, implying
that the abducting must be of the type described in sections 364 and onwards. As a result, the
Supreme Court concluded that the position taken in Ram Saiya's case,586 is incorrect, and
that the fifth clause must be given full effect in accordance with its plain meaning. As a result,
if the appellant's sister was abducted, even if by her husband, and there was an assault on her
and she was forced by force to leave her father's home, the appellant would have the right of
Private Defence of his sister's body against an assault with the intent of abducting her by
force, and this right would extend to the causing of death.303

A husband had assaulted his major wife in order to kidnap her from her father's home. Her
spouse died as a result of injuries inflicted by his wife with a knife. It was decided that she
had not gone beyond her right to self-defence. It was suggested that Section 100 would excuse
the use of force by a person who was assaulted with the intent of abduction, even if the force
employed resulted in death, if the use of force was necessary. Because the only person in the
house was the accused father, who had been restrained by the husband's colleagues, it was
only logical for the accused to believe that the only option to prevent her abduction was to
render the husband incapable of carrying out his plan.

4.3.1.4 ASSAULT WITH INTENTION OF WRONGFUL CONFINEMENT

303
Vishwanath v. State of Uttar Pradesh, AIR 1960 SC 67
The clause 'sixthly' presupposes a situation in which an assault with the goal of unfairly
confining the accused results in a genuine fear that the accused will be unable to seek justice.
The following facts must be proven in order for the exception in Section 100, clause sixth,
I.P.C. to apply:

i. There must be an assault,

ii. that assault must be with the intent of wrongful confinement,

iii. that assault must be committed under circumstances that reasonably cause a person to
believe that he will be unable to seek release from the public authorities,

iv. that all three must exist, and

v. that even if all four are present, the act must fall under the restriction set forth in
Section 99, I.P.C.304

A person who has been unfairly arrested and taken to the police station to be handed over to
the cops cannot be considered to have a legitimate fear that he will be unable to seek relief
from the authorities. 305 However, if a private individual commits an assault with the goal to
create unlawful imprisonment and is unable to obtain relief from a public authority, he may
exercise his right to Private Defence of the Body under Section 100, subsection 'sixthly.'

4.3.1.5 ACT OF THROWING OR ADMINISTERING ACID OR ITS ATTEMPT

The Criminal Law (Amendment) Act. 2013 was passed on April 2, 2013, amending the Indian
Penal Code, 1860. The change resulted in the inclusion of a seventh clause to Section 100, as
well as the addition of Sections 326A and 326B to deal with acid violence explicitly. The new
amendment went like this:

The right to self-defence has been expanded to include the fear of serious injury from an acid
attack. The Criminal Law (Amendment) Act 2013 added new provisions to the Indian Penal
Code, 1860. (addition to Section 100, I.P.C.)

"Seventh,- An act of throwing or administering acid, or an attempt to throw or administer

acid, that may fairly induce the apprehension that grievous harm will result otherwise,"

In addition, the Supreme Court of India has issued various orders concerning compensation,
free medical treatment, and the regulation of acid sales.

4.3.2 IN CASE OF PROPERTY

Section 103, I.P.C., specifies that the Private Defence of Property extends to inflicting death,
subject to the limitations set by Section 99,306 in circumstances where the following acts are
committed or attempted to be committed:

i. Robbery;
304
Abdul Habib v. State (1974) CrLJ. 248 (All)
305
Razu v. Emperor, (1947) CrLJ. 487 (DB)
306
V Subramani v State of Tamil Nadu (2005) 10 SCC 358
ii. Housebreaking at night;

iii. Mischief by fire committed on any building, tent, or vessel used as a human dwelling
or a place for the custody of property;

iv. Theft, mischief, or house trespass committed under circumstances that reasonably
cause apprehension that death or grievous harm will result if the right of Private
Defence is not exercised.

The right to private property defence does not include the right to kill someone who has only
committed criminal trespass. Only a house trespass committed in such conditions as to
reasonably cause apprehension of death or great bodily harm justifies the killing of an
assailant as one of the offences listed under Section 103.307 However, if an accused can show
that the deceased-assailant induced reasonable fear of grave harm or death, necessitating the
assailant's killing, he shall be free of culpability under Section 100, I.P.C.308

Housebreaking during the day and simple theft are not included by Section 103; I.P.C. Theft
under section 382, I.P.C. qualifies for Section 103, I.P.C. protection.

4.4 WHEN THE RIGHT OF PRIVATE DEFENCE DOES NOT EXTENDS

TO CAUSING DEATH

4.4.1 IN CASE OF BODY

Except as specified in Section 100 of the I.P.C., the right of Private Defence of the Body
extends to causing hurt rather than death in all other situations. In other words, only in the
instances specified in section 100 will the right of Private Defence of Body extend to
inflicting the assailant's death. In all other circumstances, the right to private bodily defence is
limited to causing any 'damage' short of death. However, it is important to remember that the
defender's right to Private Defence in all of these circumstances is subject to the limitations
set forth in section 99, I.P.C.

There was a disagreement in Yogendra Morarji v. State of Gujarat,309 about payment of dues
claimed by the deceased from the accused in connection with the digging of a well on the
accused property. The dead and others halted the accused jeep in the middle of the road. The
accused was pelted with stones by the deceased party. Three shots were fired by the accused,
one of which struck the deceased. The court had to decide if the accused had a right to private
defence, and if so, whether that right extended to causing death or was limited to causing
death. The Supreme Court decided that when the accused jeep was stopped by the deceased
and others in the context of a disagreement about unpaid debts, the accused had a realistic fear
of physical danger at the hands of the deceased and others. However, the Supreme Court
decided that because the accused was travelling in a closed station wagon, even if the dead
was pelting stones, he could not have reasonably anticipated death or grave harm as a result of
the stone throwing. In addition, the accused had shot three rounds in a short period of time.
Before firing the second bullet, he should have fired one and waited to observe how it affected
the gang attempting to surround him. In light of the foregoing, the court decided that the
accused right to private defence only applied to causing hurt, not death. The accused had

307
State of Rajasthan v Ram Bharosi, AIR 1998 SC 3016
308
Jassa Singh v State of Haryana, AIR 2002 SC 520
309
AIR 1980 SC 660
overstepped his bounds by killing the deceased and was thus found guilty under Section 301
of the I.P.C.

The accused must prove that there were circumstances giving rise to reasonable grounds for
anxiety that either death or grave harm would be caused to him before asserting the right to
Private Defence extending to voluntarily causing death.310 To assess subjectively, such a
reasonable anticipation is required. 311 The apprehension is in the mind of the person
exercising the right of Private Defence, and it must be determined objectively in light of
events and deeds at that critical moment, as well as the overall situation of surrounding
circumstances. 312 Sections 101 and 100 should be read together when dealing with questions
about the right to private body defence.

In one case, the accused persons attacked the victim, and several of them were injured as a
result of the attack. They were found ineligible to use the plea of private defence. 313 In a
Supreme Court decision, the harm experienced could not be proven to be self-inflicted, and
his claim that he acted in self-defence to protect himself and other defendants appeared
plausible because one of the defendants had suffered serious injuries. In some circumstances,
the accused who has taken the special plea of Private Defence does not have to prove it
beyond a reasonable doubt, and the court must consider the probability while considering
such a plea. The accused was found to have a right to private defence, which he abused by
inflicting greater harm than was required.314 In a murder trial, the accused placed knife blows
on the victim, causing him to die instantly. The accused had overstepped his right of Private
Defence and was only liable to be found guilty under Section 304 (2), I.P.C., rather than
Section 302, I.P.C., because he had a right of Private Defence of property and person to do the
deceased injury short of death only. 315

4.4.2 IN CASE OF PROPERTY

Section 104 limits the right of Private Defence of property, just as Section 101 limits the right
of Private Defence of the body, to causing any harm other than death in the exercise of that
right. As a result, if the act giving rise to the exercise of the right of Private Defence is theft,
mischief, or criminal trespass, rather than any of the other offences listed in Section 103, the
right of defence is limited to the voluntary infliction of any harm other than death. I.P.C.
Section 104 is a corollary to I.P.C. Section 103.

The Supreme Court held in Nathan v. State of Madras,316 that because the harvesting party did
not appear to be armed with any deadly weapons and there could not have been any fear of
death or grievous harm on the part of the appellant and his party, their right under Section
104, I.P.C. was limited to causing any harm other than death. As a result, the accused, while
exercising their right to private property defence, went beyond that right when they killed one
of the harvesting party, and their case fell under exception 2 to Section 300, I.P.C., and they
will be charged with culpable homicide not amounting to murder under Section 304, I.P.C.,
rather than murder.

310
Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 414
311
Wassan Singh v. State of Punjab, (1996) CrLJ. 878 (SC)
312
Sunil Gangrade v. State of Madhya Pradesh (1997) CrLJ 4238 (MP)
313
Dular Mehto v. State of Bihar, 1993 CrLJ. 165
314
Savita Kumari v. Union of India, (1993) CrLJ. 1590 (SC)
315
Shivaji Ganu Naik v. State of Maharastra, (1999) CrLJ. 471 (Bom.)
316
AIR 1973 SC 665
 CHAPTER V
CONCLUSION AND SUGGESTIONS

5.1 CONCLUSION

Self-defence is a God-given right that is not based on, provided by, or taken away by man-
made ordinances or legislation. "To be or not to be, that is the question," is one of the most
famous, if not the most famous, proverbs. The right to exist includes the right to defend one's
own existence. In ancient times, when the contemporary notion of society had not arisen and
man used to live in the state of nature, he used to redress his complaints according to the
extent of his authority, according to the study of the growth and development of society. The
guiding principle was that 'might makes right.' Its unavoidable consequence was that the
mighty ruled over the weak, and occasionally it was a domination of wrong over right,
resulting in injustice, anarchy, and disorder. Then, as society progressed morally, the
responsibility for redressing private rights shifted to society or the state. The extent to which
the state took on this responsibility was determined by the state's capacity and resources in
carrying it out. However, no matter how well-organized and resourceful a society is, it will
never be able to help everyone at all times and in all circumstances. Because of the state's
inability to provide adequate safety for life and property, it was forced to recognise, within
certain limits, the right of every person to oppose violence or repel violence with violence
when state assistance was unavailable. It is clear that the most important considerations in
regard to the right to self-defence are twofold: first, that the primary responsibility of society
to maintain peace and order must not be usurped by private individuals, and second, that
individual rights must be protected in all cases and at all times. These factors have driven the
state to acknowledge the right to self-defence in situations where it cannot afford to provide
protection, but denies it in situations where it can.

The right to self-defence is extremely important. It is, however, not a necessary evil. The
importance of this right cannot be overstated, both in civilised and non-civilized states,
because it is the primary duty of the state to protect the rights of its citizens in all cases and at
all times, and thus this right assumes importance whenever there is a fear of harm to the
individual at the hands of an aggressor. With the advancement of civilization, the concept of
property develops value, and as a result, the desire for appropriation grows in proportion,
necessitating the need for opportunities to exercise this right as an efficient means of defence
against wrongdoers. As a result, the relevance of this right has not diminished in modern
governments, despite the fact that the opportunities for exercising it have decreased. When a
person is unexpectedly attacked by aggressors and effective police intervention is not
available, the decision is between a meek submission to the aggressor in the expectation of
future restitution from the public authorities or an effective resistance to such aggression by
taking the law into his own hands. The rule of self-preservation dictates that a person must
safeguard his or her life or physical integrity even if it means sacrificing the assailant's life or
limb. The right is a means to an end, to protect the defender's legitimate legal interests. The
law does not need or wish for people to submit quietly to a bodily assault because doing so
would only provide an incentive to criminals. If the right to life is upheld but the authorization
to employ reasonable means to repel hostile threats is denied, there will be logical conflict. In
all legal systems around the world, self-defence is the oldest premise for justifying the use of
force.

The right to private defence is found in all legal systems around the world, particularly in
India, England, the United States, and Australia, albeit its functions and extent vary depending
on the maturity of the system in which it is found. In the sake of general peace and good
order, society should take on the responsibility of defending individual rights and prohibiting
the use of force by individuals. Although a well-regulated and organised society will provide
broad protection to all of its citizens, it will not be able to provide protection in the event of a
sudden attack. Because of the incapacity to provide protection at all times and in all
circumstances, the right to private defence was established. The use of force in private
defence is tolerated only because the government fails to protect citizens against assault. It
means that the right is considered as the actualization of legal interests in the promotion of
general peace, rather than solely an individualistic right to safeguard one's own interests. The
right to private defence is a crucial one, because no amount of legal vigilance could ever
replace the vigilant care that each individual takes on his own behalf. Aggressors would never
be constrained as effectively by dread of individual opposition as they are by fear of laws.
Dependence on state assistance in certain unavoidable situations would be disastrous, and it
would be exceedingly unjust to deny the right to private defence entirely. Taking away this
right encourages the nefarious to commit crimes. Furthermore, the right to private defence is
undoubtedly a component that contributes to the reduction of both public and private
violence. The right can be justified on the basis of personal preference or the fact that the
prospect of punishment by the law is ineffective in deterring such behaviour. This is because
the danger of death in the future will never be strong enough to persuade a guy to commit
suicide now. If a legitimate private defence were to be considered criminal, it may be
construed as undervaluing the victim's life in favour of the aggressor's. The first law of nature,
as it is rightly called, private defence, cannot be taken away by the law of society.

The purpose of this explanation of the idea of self-defence is to establish that the phrases
"Self-Defence" and "Private Defence" are interchangeable. In truth, they both signify the
same thing. 'Se Defendingo' is a Latin phrase that means "to defend oneself." In this study, the
terms "private defence" and "self-defence" are used interchangeably. Both words have the
same meaning. Despite this, most people prefer to refer to self-defence as "Self-Defence"
rather than "Private Defence." Most jurists believe that the term "private defence" is more
appropriate because it refers to an individual's protection of not just himself, but also other
people and property.

In the ancient world, the notion of right of private defence in western countries was a period
of absolute culpability, and killing was regarded a crime. With the growth of society, this
absolute culpability was diminished, and killing in self-defence was excused, and in the
mediaeval time, the concept of forgiveness exempted a person. With the passage of time, this
concept of pardon aids in the development of a more acceptable attitude to the theory of self-
defence in society. Gradually, the defendant became exempt from criminal liability only in
circumstances when his actions were justified. The criminal jurisprudence of India has been
affected by religion from ancient times, and homicide is only authorised in circumstances
when there is a danger to life. During the middle Ages, Islamic jurisprudence granted the
defendant the right to kill a person in self-defence, with the caveat that it should only be used
when there is an immediate danger to life and there is no other option. In contrast to the
doctrine of absolute culpability developed in ancient western criminal jurisprudence, ancient
Indian law of self-defence was more expansive philosophically. The British instilled the
concept of limited self-defence in India through the Indian Penal Code.

In comparison, in England, homicide cannot be justified on any grounds unless it was

necessary to protect the defender's equal interests. When the goal may be reached through any
peaceful means, such as retreat or temporising the situation, it is not lawful to commit
homicide in self-defence. Retreat, on the other hand, is just one of the factors to consider
when determining whether the defendant went beyond the reasonable limitations. The victim
of an unlawful assault may use reasonable force in self-defence, but the appropriateness of the
force should not be judged on a jeweller’s scale; rather, an objective standard would be more
suitable and sensible. If an assailant died as a result of his actions, he should not be charged
with murder if the force employed was not excessive in the circumstances. The responsibility
of a man who honestly believes it is essential to use lethal force in self-defence is
unquestionably lower than that of a man who kills someone in cold blood. In England, the
right to self-defence and the defence of those who stand in the relationship of husband and
wife, parent and child, or master and servant is a right that belongs to everyone. Probably, the
right does not apply only to these kinds of relationships, but also to the defence of anyone. If a
person or property is forcibly attacked, it is legal for him to retaliate with force, and any
breach of the peace that occurs is charged only against the individual who started the affray. It
is sufficient to prove that the initial assault was justified in this defence. Self-defence is a
fundamental law of nature that is not, and cannot be, taken away by the law of society. It's an
excuse for breaking the law, or even homicide, but if the defender's opposition goes beyond
ordinary defence and prevention, the defender becomes the aggressor. When a person pleads
self-defence to an assault allegation, he must show that he did not desire to fight. He must
have shown by his actions that he was willing to delay and disengage, as well as possibly
make some bodily retreat, but he did not have to take to his heels and flee. Whether the
alleged attack resulted in death or not, this is the law. In a number of cases, the English Court
followed a similar interpretation, 317 emphasising that there cannot be any question of private
defence if both parties' primary goal was to fight and the assertion of their right to property
was only a pretext. There can only be a right of private defence to property in the hands of
someone who has a clear title to it; if no such title has been established, there can be no right
of private defence. The right to self-defence is no longer limited to a person who is being
attacked or assaulted. The use of force in self-defence or to prevent crime is justified under
English criminal law. In order to escape an assault, the force employed in defence must be
both required and reasonable in the circumstances, i.e. proportionate to the harm posed.
However, the defendant or accused is guilty of murder if he employs excessive force.
According to the notion, there may be no defence at all or a comprehensive defence. This, it is
said, is an oversimplified viewpoint. If the killing was reasonably necessary, the action should
only be considered manslaughter if it was based on an unjustifiable mistake of fact. Even if
the defendant's mistake of fact was irrational, it can be used as a defence.

The Supreme Court of India ruled 318 that self-preservation is a basic human instinct that is
duly recognised by all civilised countries' criminal law. Within certain reasonable bounds, all
free, democratic, and civilised countries acknowledge the right to self-defence.

To claim a right to private defence extending to voluntary inflicting of death, the accused
must show that there were circumstances giving rise to reasonable grounds for believing that
death or grave harm would be caused to him, according to the Supreme Court of India. 319 The
law of private defence does not require the individual who has been assaulted or is under
suspicion of being assaulted to flee for their own protection. It provides him the right to
defend himself, and the law grants him that right. There is no right to self-defence if there is
no reasonable fear of harm. The need to avoid a coming threat must be present, whether real
or perceived.

The Supreme Court320 held that the right to private defence is founded on the following
principles:

317
R. v. Wheeler, (1967) 1 WLR 1531, R. W. Julien, (1969) 1 WLR 839
318
Suresh Singhal v. State (Delhi Administration), 2017(2) SCC 737
319
Raj Singh v. State of Haryana (SC) 2015 AIR (SCW) 2941
320
George Dominic Varkey v. State of Kerala, (1971) 35 SCC 275
i. No more harm must be inflicted than is necessary for the purpose of defence;

ii. There must be a reasonable fear of bodily harm from the attempt or threat to commit
some offence; and

iii. The right does not come into existence until there is a reasonable fear of bodily harm.

Sections 99, 98, and 100 specify the scope of the right, the people against whom it can be
used, and the amount of harm that can be inflicted justifiably on the person against whom the
right can be used.

Because under Section 97, everyone has the right to defend his or her own body, as well as
"the body of any other person" against any crime.

The Supreme Court also defined the scope of the right to private defense 321:

"This, however, does not imply that a person who is abruptly confronted with an assault must
flee and thereby defend himself. He has the right to fight back and defend himself. If he has to
deal with an attack on his property, he is in the same boat. In other words, if an individual
citizen or his property is threatened and immediate assistance from the state machinery is
unavailable, the individual citizen has the right to defend himself and his property."

The right must exist at the relevant period, according to the Supreme Court. There is no right
to self-defence if there was no threat to the individual or the persons and property of their
companions at the time.

In examining the accused apprehension, Indian courts place a strong emphasis on the passage
of time. A reasonable fear of harm to a person or property is founded on a number of
considerations, including a real and immediate threat, a dangerous form of assault, the
assailant's attitude, and so on. To determine a realistic fear of danger, the enlarged objective
test technique should be used.

The retreat rule is not included in the Penal Code or any other equivalent legislation. In the
absence of such a provision, the perspectives of many authors and decision-makers may be
useful. The retreat rule has not been enforced in India since the right to private defence serves
a social purpose. Furthermore, when confronted with unlawful action, the law does not
require a law-abiding individual to act like a coward.

Only when the right of self-defence provided by sections 96-105 (which later codified the
common law relating to self-defence) has been exceeded by the use of more force than was
required to repulse the violence is the mediatory argument allowed by Indian courts. The
exemption itself stipulates that the excessive violence was employed in good faith, and that it
would not apply if the perpetrator exploited the situation to settle a score.

When one is under imminent fear of bodily injury in America, one is authorised to use
reasonable force to defend himself in every state. The amount of force used must be
proportional to the amount of force used against the person's safety. Many states in the United
States have an obligation to retreat if it is possible to do so safely. In certain states, this is not
the case. In most cases, one is not compelled to retreat if he is in his own home, but he should
verify the rules in his own state. Fundamentally, there is agreement on one basic principle: if

321
Jai Dev v. State of Punjab, AIR 1963 SC 612
there is no other option, one is authorised to use a reasonable degree of force against someone
who has attacked him.

If the threat is potentially lethal, lethal force may be used. However, the amount of force used
must be acceptable and proportionate to the threat, especially in public settings. Shooting
someone who tosses a wad of paper at you, as well as shooting someone who throws a punch
or other non-lethal threat, is disproportionate and unreasonable. Of course, punching back is
an acceptable kind of self-defence. There are also increased self-defence statutes in many
states. In Colorado, for example, it is generally permissible to use any amount of force against
an intruder who has entered one's home illegally, assuming that the situation poses a
legitimate and imminent threat to the occupants. Homeowners who use force against an
intruder in their house are usually granted legal and criminal immunity under such Castle
Doctrine rules. The concept is that someone who enters a home illegally can be viewed as an
imminent threat to the occupants and should be dealt with accordingly. Stand-your-ground
laws in some states go much further, basically expanding the "castle concept" to "wherever
you have a right to be" and permitting any level of response to any threat. In the United
States, it is the law that whatever one can do for himself, one can also do for others. The
"Castle Doctrine" allows nearly all states to authorise the use of lethal force to protect one's
own body and property. Many people still have a "duty to retreat" if they are attacked outside
their home in some locations. However, several states have enacted legislation to strengthen
those rights in other areas. Self-defence is an affirmative defence used in the United States to
explain the use of force by one person against another in specified circumstances. "A person
is privileged to use such force as reasonably appears necessary to defend himself or herself
against an obvious threat of unlawful and immediate harm from another," according to the
general rule in the United States. This means that in non-lethal force cases, the person must
reasonably think that using force was necessary to prevent impending, unlawful physical
damage. When using deadly force in self-defence, the person must have a reasonable belief
that using lethal force is immediately necessary to prevent the other from inflicting grievous
bodily harm or death. Most states no longer demand that a person retreat before using lethal
force. While it is unsafe to do so or when one is inside one's own home, there is no
responsibility to retreat in the minority of countries that do mandate it. Legislation relating to
the use of lethal force are known as "duty to retreat" laws. Individuals who live in a state that
has enacted some type of "duty to retreat" policy are expected to attempt to flee immediate
danger by running away or abandoning the situation. The use of fatal force can be considered
self-defence if the individual is physically unable of fleeing the situation. When a person is
cornered or physically constrained and faces bodily harm or death, they have the right to use
any action required to protect themselves, including lethal force. Arkansas, Connecticut,
Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Missouri, Minnesota, Nebraska,
New Jersey, New York, North Dakota, Rhode Island, Wisconsin, and Wyoming are among
the states that have enacted "duty to withdraw" legislation. In America, the issue has been
debated repeatedly, and it has been decided in numerous jurisdictions that a person who is
unjustly attacked and killed may stand his ground and justifiably kill his perpetrator. Several
jurisdictions, on the other hand, hold that if the need for killing may be safely avoided by
retiring, the assailant shall retreat rather than murder. California, for example, has a statute
comparable to "stand your ground" but with substantial distinctions. California does not have
a "Stand Your Ground" statute, but it does have the "Castle Doctrine," which allows people to
use deadly force in their own homes if they have a "reasonable fear of impending hazard or
serious bodily harm." Illinois, Iowa, Oregon, and Washington are among the states that have
identical statutes.

"Stand Your Ground" laws are currently in force in 24 states, including North Carolina and
Florida. A "Stand Your Ground" statute states that a person may use force, including lethal
force in some jurisdictions, to defend himself without first attempting to flee imminent
danger. With a claim of self-defence in many "stand your ground" jurisdictions, a person can
avoid a trial and be awarded immunity from prosecution. The laws governing "stand your
ground" vary from state to state. When it comes to deploying lethal force, some people still
insist on a "responsibility to withdraw." In self-defence instances, the use of lethal force is
frequently a topic of contention. The Stand Your Ground Rule is followed in Alabama,
Alaska, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan,
Mississippi, Montana, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma,
Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

These rules are similar to "stand your ground" principles, but are limited to a person's
property under the "Castle Doctrine," which refers to a person's realm, which can include their
home, office, or automobile. The "castle theory" asserts that a person has the right to be safe
and secure inside their own house or place of business, and that they should not be forced to
leave their domain to be safe. When faced with severe bodily harm or death, homeowners
who use fatal force within their home, place of business, or automobile may be entitled to
claim self-defence under "Castle Doctrine" states. While most states have some version of the
"Castle Doctrine," the regulations vary each state. Most states no longer demand that a person
retreat before using lethal force. While it is unsafe to do so or when one is inside one's own
home, there is no responsibility to retreat in the minority of countries that do mandate it. The
common law norm that a person must retire before using deadly force is not followed in the
majority of US jurisdictions. However, whether or not the person retreated may be significant
to the reasonableness of the use of lethal force. The actor must have proven that he or she
retreated before employing fatal force under the common law rule and the norm in a minority
of states, unless:
1) it was not safe to retreat; or
2) the incident occurred at the actor's house. Furthermore, the Model Penal Code mandates
retreat or compliance if it may be done safely. In America, as in England, there may be a
comprehensive defence or no defence at all. As a result, in cases of disproportionate force
employed in self-defence, the accused is sentenced to death. However, a new pattern is
emerging in which the aggressor used solely non-lethal force or started the battle with fists or
another non-lethal weapon, and the victim retaliated with lethal force. This could be explained
by the initial victim's extreme response to the aggressiveness, which went beyond the victim's
right to self-defence. In this case, the initial victim turned the aggressor, and the altercation
was attributed to the initial victim's overreaction.

In Australia, an individual can generally take any defensive or evasive actions they consider
are reasonable in the circumstances. Self-defence, unlike much of the common law, is not a
formulaic area of law, but rather focuses on the facts of each case. A person acts in self-
defence if and only if he or she believes the action is necessary to defend himself or another
person; to prevent or terminate unlawful imprisonment of himself or another person; to
protect property from unlawful appropriation, destruction, damage, or interference; to prevent
criminal trespass to any land or premises; or to remove a person who is committing criminal
acts from any land or premises.

While the term 'self-defence' implies that it can only be employed when the person is
personally threatened, it can also be used to defend others. Self-defence was originally limited
to particular types of relationships in common law, such as parent and child, husband and
wife, or 'master and servant.' However, as legislated in s 418(2) (a) of the Crimes Act 1900
(NSW) and Section 9AC, Section 9AE(a) of the Crimes Act 1958, several Australian
jurisdictions allow for self-defence outside these limited categories (VIC). The likelihood of
the expected attack, whether imminent or not, is definitely a consideration in determining
whether self-defence will give an excuse. In theory, there currently appears to be a significant
difference between the positions taken in the United Kingdom and Australia. In the United
Kingdom, it is common to think of defence as only being available if an assault is imminent.
Imminence is one of several criteria to consider in Australia, despite its importance.
The latter is the superior option, and it should be used in the UK as well.
The likelihood of the expected attack, whether imminent or not, is definitely a consideration
in determining whether self-defence will give an excuse. Imminence, which once served as a
rule of law, is now employed as an evidential matter when determining the rationality and
necessity of an accused actions. However, in cases involving victims of chronic family
violence who killed their abusers in non-confrontational conditions and claimed self-defence
in the last two decades, imminence has been difficult. As a result, a number of Australian
jurisdictions developed their own approaches to imminence. There are five distinct ways, with
the most radical (in Queensland) presumably replacing a history of domestic violence for the
need of imminence. Imminence considerations are much more permissive in other
jurisdictions, such as Victoria and Western Australia. While imminence may have previously
served as an independent temporal metric, its role as a proxy for necessity is now obvious, at
least in cases involving family violence victims who kill their abusers. Because some of these
people lack adequate State protection, an exemption to the basic rule that only the state can
use force to defend them in non-imminent situations may be justified. As a result, necessity
rather than imminence may be the deciding factor for victims of familial violence who kill
their abusers.

The historical duty to retreat related to the requirement that someone in peril "retreat as far as
possible before resorting to self-help." While retreating in the face of danger is no longer a
legal requirement, the High Court322 indicated that it was a "circumstance to be examined in
assessing whether the accused felt upon reasonable reasons that what he did was required in
self-defence." In a series of cases, Australian courts have stated that an accused who used
more force than was reasonably necessary to defend himself and killed his assailant would be
guilty of manslaughter rather than murder if he believed the degree of force he was employing
was justified by the situation.323 Howe, (1958) 100 is the most authoritative Australian ruling
on the subject. 448 C.L.R.

It is determined that the right to private defence was originally limited to the defence of
oneself, but has since expanded to include family members. The scope of private defence or
self-defence has broadened throughout time. The right of self-defence may now be exercised
in India, England, Australia, and the United States for the protection of one's own body and
the bodies of others, as well as one's property and the property of others, against offences
affecting human body and property, subject to a number of factors, including the presence of a
real and immediate threat, the time of apprehension, the fit case of a dangerous form of
assault, reasonable apprehension of danger, and the time to seek.

We reviewed the entire notion of private defence in India, as well as the circumstances that
frequently cause confusion, and we contrasted the current laws relating to the right of private
defence in England, America, and Australia.

8.2 SUGGESTIONS

i. The law relating to the right of private defence requires structural reform by
rearranging the provisions, clustering the sections dealing with the right of private

322
Zecevic v. DPP (1987) 162 CLR 645, 663
323
Howe (1958) 100 C.L.R. 448; McKay [1957] V.R. 560; Bufalo [1958] V.R. 363; Enright [1961] V.R. 663:
Turner [1962] V.R. 30; Tikos (1) [1963] V.R. 285; Tikos (2) [1963] V.R. 306.
 defence of the body in one section and those dealing with the right to defend property
in another, so that the concepts of person and property can be read and understood one
after the other.

ii. Section 96 of the Indian Penal Code should be repealed because it is only a declaratory
legislation. We understand that everything done in the exercise of the right of private
defence is not an offence without this provision because the other connected sections
are under Chapter IV of the Indian Penal Code, which nullifies responsibility.

iii. The words "any conduct which constitutes an offence" in Section 97 of the Indian
Penal Code should be removed, and the phrase "coming under the definition of theft,
robbery, mischief, or criminal trespass" should be added in its place. The reason for
this is because Section 98 of the Indian Penal Code fully covers all circumstances in
which an act, while not an offence, allows the perpetrator to exercise his or her right to
self-defence.

iv. It is necessary to alter Section 99 of the Indian Penal Code to provide protection to
public servants who are acting in good faith in attempting to execute a judgement or
order issued by a court with no jurisdiction. Even if a public servant is free from
prosecution under section 78 of the Indian Penal Code if he believed the court had
jurisdiction in good faith.

v. The phrase "time to take recourse to the protection of the public authority" in Section
99 of the Indian Penal Code should be removed. In my opinion, the law on this topic
needs to be reviewed because public authority protection is neither readily available
nor appropriately provided. In comparison, other countries' penal codes do not contain
similar restrictions.

vi. The components of "reasonable harm" or "proportionate harm," which are not
explicitly stated in Section 99 Para IV of the Indian Penal Code, must be defined.

vii. The fifth paragraph of Section 100 of the Indian Penal Code should be changed to
limit the types of abductions that are punishable under the Indian Penal Code.

viii. Section 103 of the Indian Penal Code should be repealed because 'all aggravated kinds
of criminal trespass' are controlled by the general provision in clause 'fourthly' of the
section.

ix. It is necessary to broaden the scope of the right to private property defence by
including the offences of "mischief by explosive substance," "mischief by fire or
explosive substance committed on any vehicle," and "mischief by fire or explosive
substance committed on places of worship" in Section 103 of the Indian Penal Code's
'thirdly' section.

x. In Section 103 of the Indian Penal Code, the word 'house-trespass' should be replaced
with 'criminal trespass.'

xi. It is necessary to broaden the meaning of Section 106 of the Indian Penal Code to
include apprehension of severe harm.
 To summarise, the major finding of this study is that existing regulations relating to the right
of private defence need to be reviewed because they are insufficient. It is envisaged that the
theses above recommendations will aid in broadening the concept of private defence in India.

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ARTICLES
1) Ashworth, A.J., “Self- Defence and the Right to life”, The Cambridge
LawJournal, Vol. 34, Issue 2, Nov. 1975
2) Brooks, Joshua D., “Deadly- Force Self- Defence and the problem of the
silent provocateur”, Cornell Journal of Law and Public Policy, Vol. 24,
2015
3) Elliott, Ian D., “Excessive Self- Defence in Commonwealth Law: A
Comment”, The International and Comparative Law Quarterly,
Cambridge University Press, Vol. 22, No. 4, Oct., 1973
4) Grabczynska, Arlette & Ferzan, Kimberly Kessler, “Justifying Killing in
Self- Defence”, The Journal of Criminal Law & Criminology,
Northwestern University, School of Law, Vol. 99, No. 1, 2009
5) Guz, Angelica & McMahon, Marilyn, “Is Imminence still necessary?
Current approaches to imminence in the laws governing Self- Defence in
Australia”, Flinders Law Journal, 13 FLJ 79, 2011
6) Kim, Susie, “Looking at the Invisible: When Battered Women are
acquitted by successfully raising Self- Defence”, UNSWStudentLRS,
2013
7) Lanham, David, “Offensive Weapons and Self- Defence”, Melbourne
Law School Legal Studies Research Paper, No. 115, May, 2005
8) Leverick, Fiona, “Defending Self- Defence”, Oxford Journal of Legal
Studies, 27 (3), 2007
9) McMahon, Marilyn, “Homicide, Self- Defence and the (inchoate)
criminology of battered women”, 37 Criminal Law Journal, 79, 2013
10) Pichhadze, Amir, “Proposals for Reforming the Law of Self- Defence”,
TheJournal of Criminal Law, 2008, 72 JCL
11) Ross, Jonatham, “The Right of Private Defence”, The Yale Law Journal,
Vol. 11, No. 3, Jan., 1902
12) Sangero, Boaz, “A New Defense for Self- Defence”, Buffalo Criminal
LawReview, University of California Press, Vol. 9, No. 2, Jan., 2006
13) Stewart, Hamish, “The Role of Reasonableness in Self- Defence”,
CanadianJournal of Law and Jurisprudence, Vol. 16, No. 2, July, 2003
14) Tarrant, Stella, “Self- Defence in the Western Australian Criminal Code:
Two Proposals for reform”, University of Western Australia, Faculty of
Law Research Paper, 2015-6
15) Toole, Kellie, “Self- Defence and the Reasonable Women: Equality
before the New Victorian Law”, University of Adelaide Law School,
Research Paper No. 2012- 30
16) Yeo, Stanley Meng Heong, “New Developments in the Law of Self-
Defence in Australia”, Oxford Journal of Legal Studies, Vol. 7, No. 3,
Winter, 1987
17) Yeo, Stanley Meng Heong, “The Demise of Excessive Self- Defence in
Australia”, The International and Comparative Law Quarterly, Cambridge
University Press, Vol. 37, No. 2, Apr., 1988

JOURNALS

1) Allahabad Law Journal

2) Allahabad Weekly Notes
3) American Journal of Criminal Law
4) American Journal of Comparative Law
5) Brooklyan Law Review
6) Calcutta Weekly Notes
7) Columbia Law Review
8) Criminal Law Journal
9) Cuttack Law Times
10) Harvard Law Review
11) Jabalpur Law Journal
12) Kerala Law Journal
13) Kerala Law Times
14) Madras Weekly Notes
15) Modern Law Review
16) Tulane Law Review
17) University of Florida Law Review

REPORTERS
1) All England Law Reporter
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9) Punjab Law Report