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Right of Private Defence

February 4, 2015 by kudrat Leave a Comment

By Simran, Chanakya National Law University, Patna

“Editor’s Note:  The state has the duty to protect its citizens and their
property from harm. However, circumstances may arise when the aid
of state machinery is not available and there is imminent danger to a
person or his property. In such situations, a person is allowed to use
force to ward-off the immediate threat to his or someone else’s person
or property. This is the right of private defence. The people are
endowed with this right so that they can defend themselves and their
property and not hesitate due to fear of prosecution. The right, in
some circumstances even extends to causing death of the person who
poses such a threat. But such a right is subject to some restrictions
and not available in all circumstances. It is only allowed when the
danger to life or property is immediate and the accused is not the
aggressor. The right of private  defence is not  available against
public servants acting in exercise of their lawful powers. A person is
allowed to use only reasonable force; force that is proportionate to the
impending danger.” 

Introduction

Sections 96 to 106 of the penal code state the law relating to the right
of private defence of person and property. The provisions contained in
these sections give authority to a man to use necessary force against
an assailant or wrong-doer for the purpose of protecting one’s own
body and property as also another’s body and property when
immediate aid from the state machinery is not readily available; and in
so doing he is not answerable in law for his deeds.

Self-help is the first rule of criminal law. The right of private defence is
absolutely necessary for the protection of one’s life, liberty and
property. It is a right inherent in a man. But the kind and amount of
force is minutely regulated by law. The use of force to protect one’s
property and person is called the right of private defence[i].

150 years ago, during colonialism, an enthusiastic Macaulay proposed

a right of private defence in his draft code with the ambitious project
of encouraging a ‘manly spirit’ among the ‘natives’. The ideal Indian
would stand his ground in the face of danger and not hesitate to
defend his own body or property or that of another. He would respond
with defensive force to prevent certain crimes, even to the extent of
causing death. As a general idea, the right of private defence permits
individuals to use defensive force which otherwise be illegal, to fend
off attacks threatening certain important interests. Like the defence of
necessity, the right of private defence authorizes individuals to take
the law into their own hands[ii].

Private Defence: Meaning And Types

 The expression ‘private defence’ that has been used in the Indian
Penal Code, 1860, has not been defined therein. Thus, it has been the
prerogative of the judiciary to evolve a workable framework for the
exercise of the right. Thus in India, the right of private defence is the
right to defend the person or property of himself or of any other person
against an act of another, which if the private defence is not pleaded
would have amounted to a crime. This right therefore creates an
exception to criminal liability. Some of the aspects of the right of
private defence under the IPC are that no right of self-defence can
exist against an unarmed and unoffending individual, the right is
available against the aggressor only and it is only the person who is in
imminent danger of person or property and only when no state help is
available. The right of private defence is a natural right which is
evinced from particular circumstances rather than being in the nature
of a privilege[iii].

However, the most important principle is that the right of private

defence requires that the force used in the defence should be
necessary and reasonable in the circumstances. But, in the moments
of disturbed mental condition, this cannot be measured in golden
scales. Whether the case of necessity exists must be determined from
the viewpoint of the accused and his act must be viewed in the light of
the circumstances as they appear on such occasion. Specific
limitations have also been provided for when the right cannot be
validly exercised and also the provision specifies clearly the cases in
which the right can extend to the causing of death of the aggressor.
The reasonable apprehension can only be justified if the accused had
an honest belief that there is danger and that such belief is reasonably
warranted by the conduct of the aggressor and the surrounding
circumstances. This brings in an iota of an objective criterion for
establishing ‘reasonableness.’ The imminence of danger is also an
important prerequisite for the valid exercise self-defence[iv]. Thus,
there should be a reasonable belief that the danger is imminent and
that force must be used to repel it.

Nature Of The Right

It is the first duty of man to help himself. The right of self-defence
must be fostered in the citizens of every free country. The right is
recognized in every system of law and its extent varies in inverse ratio
to the capacity of the state to protect life and property of the citizens.
It is the primary duty of the state to protect the life and property of the
individuals, but no state, no matter how large its resources, can afford
to depute a policeman to dog the steps of every rouge in the country.
One thing should be clear that there is no right of private defence
when there is time to have recourse to the protection of police
authorities. The right is not dependent on the actual criminality of the
person resisted. It depends solely on the wrongful or apparently
wrongful character of the act attempted and if the apprehension is real
and reasonable, it makes no difference that it is mistaken. An act done
in exercise of this right is not an offence and does not, therefore, give
rise to any right of private defence in return[v].

Private Defence In The Indian Legal System

Jeremy Bentham, an English Legal Luminary, once opined, “This right

of defense is absolutely necessary. The vigilance of the Magistrates
can never make up for vigilance of each individual on his own behalf.
The fear of the law can never restrain bad men so effectually as the
fear of the sum total to individual resistance[vi]. Take away this right
and you become, in so doing, the accomplice of all bad men.” This
right is based on two principles,

 It is available against the aggressor only, and

 The right is available only when the defender entertains reasonable
apprehension.

There are three tests for ascertaining reasonable apprehension; they

are the objective, subjective and expanded objective tests. While
objective test emphasizes as to how in a similar circumstance an
ordinary, reasonable, standard and average person will respond, the
subjective test examines the mental state based on individual
attitude. However, expanded objective test, being a combination of
aforesaid two tests, bases its inquiry to determine whether or not the
individual acted as a reasonable person. Right of private defence
serves a social purpose and the right should be liberally construed.
Such a right is not only a restraining influence on corrupt characters
but also encourages manly spirit in a law abiding citizen. It should not
be narrowly construed as it necessitates the occasions for the
exercise of this right as an effective means of protection against
wrong doers.

The Right to private defence of a citizen, where one can practically

take law in his own hands to defend his own person and property or
that of others, is clearly defined in Section 96 to Section 106 of the
Indian Penal Code.

Section 96 talks about things done in private defence – Nothing is an

offence, which is done in the exercise of the right of private defence.

Right of private defence cannot be said to be an offence in return. The

right of self-defence under Section 96 is not ,absolute but is clearly
qualified by Section 99 which says that the right in no case extends to
the inflicting of more harm than it is necessary for the purpose of
defence. It is well settled that in a free fight, no right of private
defence is available to either party and each individual is responsible
for his own acts. The right of private defence will completely absolve a
person from all guilt even when he causes the death of another person
in the following situations, i.e

 If the deceased was the actual assailant, and

 If the offence committed by the deceased, which occasioned the cause
of the exercise of the right of private defence of body and property falls
within anyone of the six or four categories enumerated in Sections 100
and 103 of the penal code.

Section 97 talks about Right of private defence of the body and of

Property: – Every person has a right, subject to the restrictions
contained in Section 99, to defend-
First-His own body, and the body of any other person, against any
offence affecting the human body;

Secondly-The property, whether movable or immovable, of himself or

of any other person, against any act which is an offence falling under
the definition of theft, robbery, mischief or criminal trespass, or which
is an attempt to commit theft, robbery, mischief for criminal trespass.

This Section limits exercise of the right of private defence to the

extent of absolute necessity. It must not be more than what is
necessary for defending aggression. There must be reasonable
apprehension of danger that comes from the aggressor. This Section
divides the right of private defence into two parts, i.e. the first part
deals with the right of private defence of person, and the second part
with the right of private defence of property[vii].

Section 99 lays down the acts against which there is no right of

private defence: – There is no right of private defence against an act
which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a public servant
acting in good faith under color of his office, though that act, may not
be strictly justifiable by law.

Section 99 lays down the conditions and limits within which the right
of private defence can be exercised. The first two clauses provide that
the right of private defence cannot be invoked against a public servant
or a person acting in good faith in the exercise of his legal duty
provided that the act is not illegal[viii]. Similarly, clause three restricts
the right of private defence if there is time to seek help of public
authorities. And the right must be exercised in proportion to harm to
be inflicted. In other words, there is no right of private defence:

 Against the acts of a public servant; and

 Against the acts of those acting under their authority or direction;
  When there is sufficient time for recourse to public authorities; and
 The quantum of harm that may be caused shall in no case be in excess
of harm that may be necessary for the purpose of defence.
 Section100 specifies when the right of private defence of the body
extends to causing death: -

The right of private defence of the body extends, under the restrictions
mentioned in the last preceding section, to the voluntary causing of
death or of any other harm to the assailant, if the offence which
occasions the exercise of the right be of any of the descriptions
hereinafter enumerated, namely: –

First-Such an assault as may reasonably cause the apprehension that

death will otherwise be the consequence of such assault;

Secondly-Such an assault as may reasonably cause the apprehension

that grievous hurt will otherwise be the consequence of such assault;

Thirdly- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

Sixthly- An assault with the intention of wrongfully confining a person,

under circumstances that may reasonably cause him to apprehend
that he will be unable to have recourse to the public authorities for his
release.

Seventhly – an act of throwing acid or attempting to throw acid.

To invoke the provisions of Section 100 of I.P.C., four conditions must

exist:-

 The person exercising the right of private defense must be free from
fault in bringing about the encounter,
  There must be an impending peril to life or of great bodily harm,
 There must be no safe or reasonable mode of escape by retreat,
 There must have been a necessity for taking life.

Section101 prescribes when such right extends to causing any harm

other than death:-

If the offence be not of any of the descriptions enumerated in the last

preceding section, the right of private defence of the body does not
extend to the voluntary causing of death to the assailant, but does
extend, under the restrictions mentioned in Section 99, to the
voluntary causing to the assailant of any harm other than death[ix].

Section102 is very important as it deals with the commencement and

continuance of the right of private defence of the body: 

The right of private defence of the body commences as soon as a

reasonable apprehension of danger to the body arises from an attempt
or threat to commit the offence though the offence may not have been
committed; and it continues as long as such apprehension of danger to
the body continues. The apprehension of danger must be reasonable,
not fanciful. For example, one cannot shoot one’s enemy from a long
distance, even if he is armed with a dangerous weapon and means to
kill. This is because he has not attacked you and therefore there is no
reasonable apprehension of attack. In other words, there is no attack
and hence no right of private defence arises. Moreover the danger
must be present and imminent[x].

Section103 specifies when the right of private defence of property

extends to causing death: -

The right of private defence of property extends, under the restrictions

mentioned in Section 99, to the voluntary causing of death or of any
other harm to the wrong-doer, if the offence, the committing of which,
or the attempting to commit which, occasions the exercise of the
right, be an offence of any of the descriptions hereinafter enumerated,
namely: Robbery, House-breaking by night, Mischief by fire committed
on any building, tent or vessel, which building, tent of vessel is used as
a human dwelling, or as a place for the custody of property, Theft,
mischief, or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not exercised.

Section 103 provides the right of private defence to the property

whereas Section 100 is meant for exercising the right of private
defence to the body of a person. It justifies homicide in case of
robbery, house breaking by night, arson and the theft, mischief or
house trespass which cause apprehension or grievous harm. If a
person does not have possession over the property, he cannot claim
any right of private defence regarding such property[xi]. Right to
dispossess or throw out a trespasser is not available to the true owner
if the trespasser has been successful in accomplishing his possession
to his knowledge. This right can be only exercised against certain
criminal acts that are mentioned under this section.

Section104 tells us when such right extends to causing any harm other
than death:-

If the offence, the committing of which, or the attempting to commit

which, occasions the exercise of the right of private defence, be theft,
mischief, or criminal trespass, not of any of the descriptions
enumerated in the last preceding section, that right does not extend to
the voluntary causing of death, but does extend, subject to the
restrictions mentioned in section 99, to the voluntary causing to the
wrongdoer of any harm other than death. This Section cannot be said
to be giving a concession to the accused to exceed their right of
private defence in any way[xii]. If anyone exceeds the right of private
defence and causes death of the trespasser, he would be guilty under
Section 304, Part II. This Section is corollary to Section 103 as Section
101 is a corollary to Section 100.

Section105 prescribes the commencement and continuance of the

right of private defence of property: -

The Right of private defence of property commences when a

reasonable apprehension of danger to the property commences. The
right of private defence of property against theft continues till the
offender has affected his retreat with the property or either the
assistance of the public authorities is obtained, or the property has
been recovered[xiii]. The right of private defence of property against
robbery continues as long as the offender causes or attempts to cause
to any person death or hurt or wrongful restraint of as long as the fear
of instant death or of instant hurt or of instant personal restraint
continues

 The right of private defence of property against criminal trespass or

mischief continues as long as the offender continues in the
commission of criminal trespass or mischief.
 The right of private defence of property against house-breaking by
night continues as long as the house-trespass which has been begun
by such house-breaking continues.

Section106 talks about right of private defence against deadly assault

when there is risk of harm to innocent person: -

If in the exercise of the right of private defence against an assault,

which reasonably causes the apprehension of death, the defender be
so situated that he cannot effectually exercise that right without risk
of harm to an innocent person his right or private defence extends to
the running of that risk.
Evolution of the Right of Private Defence

In Roman law, homicide was considered to be an act by which the life

of a human-being was taken away. There were two degrees of criminal
homicide, namely, murder and manslaughter, and two degrees of
homicide that did not expose a person to punishment, namely,
justifiable and excusable. Self-defence was placed in the category of
justifiable homicide. In self-defence violence was lawful : ‘Vim enim vi
defendere omnes leges emniaque jure permittunt’  (A man, therefore,
incurs no liability, if he kills another’s slave who attacks him.)[xiv].
The Justinian code and the Twelve Tables reiterated this right of
private defence- the Code holding that no greater force than what was
sufficient to ward off the threatened danger was permitted and the
Tables on the other hand, allowing killing in such a case without
restrictions regarding it to be permissible self-redress rather than self-
defence.

Under English law the status of the right of self-defence underwent a

series of changes through the ages. In the ancient period, there was
absolute liability even for homicide committed se defendendo. In the
Medieval period, the theory of pardon developed and it became
excusable, whereas in the Modern Age, homicide committed in self-
defence is treated as justifiable, because it is presumed that such an
act is not backed with evil intent. In the early days, the law regarded
the word and the act of the individual but it did not search the heart of
the man. It was the age of strict liability[xv]. Man was held responsible
for his acts irrespective of his intentions. His mental state was not
taken into account when determining liability for the commission of
the crime. It was the external conduct and the injury upon which
liability was imposed. The accidental injuries and the injuries inflicted
during self-defence, also attracted liability. Thus, criminal liability was
not related to the evil intention of the actor.
However, in the 13th century there was a shift from strict liability and
emphasis was laid on the mental element. During this period, killing
was justified in a few exceptional cases. One who killed in
misadventure, or in self-defence was still guilty of a crime, although he
deserved a pardon from the King[xvi]. During the Medieval period,
though the accused obtained pardon yet he forfeited his goods for the
crime committed in self-defence. The moral sense of the community
could not tolerate indefinitely the idea that a blameless self-defender
was a criminal. Ultimately, the jury was allowed to give a verdict of
not guilty in such cases. Pardon of the King soon became a formality in
such cases and thus grew the concept of excusable homicide. The act
of pardon was a kind of excuse[xvii]. The word excuse itself denoted
the condonation of wrong committed by the offender. Blackstone
perceived the essence of excuses to be ‘the want or defect of will’.
This all changed in the modern period. In modern times, there is a
presumption that there is no mens rea in the homicides committed in
self-defence and as such it has become a justifiable general defence in
law. Thus, now no criminal liability is attached to the accused in such
cases. This is in conformity with the provisions of Article 2 of the
European Convention on Human Rights.

Thus, in modern times every evolved legal system has accepted the
right of self-defence as a universal one.

Private Defence In Various Legal Systems

English Law
As the common law system does not provide a statutory definition of
self-defence, it is often the opinions of legal authorities that are relied
upon. Black’s Law Dictionary enumerates two elements that are
necessary to constitute self-defence, namely=

 Accused does not provoke difficulty, and

  There must be impending peril without convenient or reasonable mode
of escape.

On the other hand Glanville Williams’ analysis of the elements is more

comprehensive: -

 The force is threatened against the person,

 The person threatened is not the aggressor,
 The danger of harm is imminent,
 The force is unlawful,
 The person threatened must actually believe that a danger exists, that
the use of force is necessary and that the kind and amount of force
being used is required in the circumstances, and that the above beliefs
are reasonable[xviii].

American  Law
The position under American law is also very similar. Great importance
is given to the following concepts when dealing with the concept of
self-defence.

 Requirement of reasonableness (a reasonable and honest belief is

essential),
 Only that amount of force should be used which reasonably appears
necessary to prevent the threatened harm.

Thus, it can be seen that in the various legal systems of the world,
there are certain common established principles pertaining to self-
defence.

Judicial View on Private Defence

 The protection of life and property is axiomatic in every civilized

society and because it is impossible for the State to do so on every
occasion – as law enforcement officers cannot be omnipresent, the
individual is given the right of private defence. The right of private
defence legally accords to the individuals the right to take reasonably
necessary measures to protect themselves under special
circumstances. Notably, on the execution of the private defence
provisions in the Penal Code, the framers said “we leave it still in a
very imperfect state…we are inclined to think that it must always be
one of the least exact parts of every system of criminal law[xix].” This
suggests that they recognized the necessity for latent ambiguity to
allow judges the flexibility to read and apply the provisions so as to
achieve fairness.

However, the local courts have overlooked this discretion conferred

upon them and instead opted for a far too restrictive (and even
unreasonable) interpretation of the provisions to the extent where
private defence is hardly adequate as a defence, defeating the
intention of the provision. The inconsistency between the judicial
interpretation and the intention of the Code framers is exemplified in
the interpretation of “reasonable apprehension” under Sections 100
and 102[xx]. Evidently, the local courts have adopted a strict objective
approach in determining “reasonable apprehension”, ignoring its
inherent ambiguity. This is in contrast to the current English law that
judges the nature of the danger wholly according to that of the
accused’s perception (purely subjective test).

Darshan Singh v. State of Punjab[xxi]

The Supreme Court laid down Guidelines for Right Of Private Defence
for Citizens. It observed that a person cannot be expected to act in a
cowardly manner when confronted with an imminent threat to life and
has got every right to kill the aggressor in self defense. A bench
comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while
acquitting a person of murder, said that when enacting Section 96 to
106 of the IPC, the Legislature clearly intended to arouse and
encourage the spirit of self-defense amongst the citizens, when faced
with grave danger.“ The law does not require a law-abiding citizen to
behave like a coward when confronted with an imminent unlawful
aggression. As repeatedly observed by this court, there is nothing
more degrading to the human spirit than to run away in face of danger.
Right of private defense is thus designed to serve a social purpose and
deserves to be fostered within the prescribed limit[xxii].”

 The court laid down ten guidelines where right of self-defence is

available to a citizen, but also warned that in the disguise of self-
defence, one cannot be allowed to endanger or threaten the lives and
properties of others or for the purpose of taking personal revenge. The
apex court concluded by saying that a person who is under imminent
threat is not expected to use force exactly required to repel the attack
and his behaviour cannot be weighed on “golden scales.”

The Court declared their legal position under the following 10

guidelines[xxiii]:

1. Self-preservation is a basic human instinct and is duly recognized by

the criminal jurisprudence of all civilized countries. All free,
democratic and civilized countries recognize the right of private
defense within certain reasonable limits.
2. The right of private defense is available only to one who is suddenly
confronted with the necessity of averting an impending danger and not
of self-creation.
3. A mere reasonable apprehension is enough to put the right of self-
defense into operation. In other words, it is not necessary that there
should be an actual commission of the offence in order to give rise to
the right of private defense. It is enough if the accused apprehended
that such an offence is contemplated and it is likely to be committed if
the right of private defense is not exercised.
 4. The right of private defense commences as soon as a reasonable
apprehension arises and it is co-terminus with the duration of such
apprehension.
5. It is unrealistic to expect a person under assault to modulate his
defense step by step with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to be
wholly disproportionate or much greater than necessary for protection
of the person or property.
7. It is well settled that even if the accused does not plead self-defense,
it is open to consider such a plea if the same arises from the material
on record.
8. The accused need not prove the existence of the right of private
defense beyond reasonable doubt.
9. The Indian Penal Code confers the right of private defense only when
the unlawful or wrongful act is an offence.
10. A person who is in imminent and reasonable danger of losing his
life or limb may, in exercise of self defense, inflict any harm (even
extending to death) on his assailant either when the assault is
attempted or directly threatened.

Yogendra Moraji v. State[xxiv]

The Supreme Court discussed in detail the extent and the limitations
of the right of private defence of body. One of the aspects emphasized
by the court was that there must be no safe or reasonable mode of
escape by retreat for the person confronted with an impending peril to
life or of grave bodily harm except by inflicting death on the assailant.
This aspect has create quite a confusion as it indirectly suggests that
once should first try to see the possibility of a retreat than to defend
by using force, which is contrary to the principle that the law does not
encourage cowardice on the part of one who is attacked. But another
viewpoint is that this retreat theory in fact is an acceptance of the
English common law principle of defence of body or property under
which the common law courts always insisted to look first as to
whether the accused could prevent the commission of crime against
him by retreating.

Nand Kishore Lal v. Emperor[xxv]

Accused who were Sikhs, abducted a Muslim married woman and
converted her to Sikhism. Nearly a year after the abduction, the
relatives of the woman’s husband came and demanded that she return.
The accused refused to comply and the woman herself expressly
stated her unwillingness to rejoin her Muslim husband. Thereupon the
husband’s relatives attempted to take her away by force. The accused
resisted the attempt and in so doing one of them inflicted a blow on
the head of the woman’s assailants, which resulted in the latter’s
death. It was held that the right of the accused to defend the woman
against her assailants extended under this section to the causing of
death and they had, therefore, committed no offence.

Mohinder Pal Jolly v. State of Punjab[xxvi]

Workers of a factory threw brickbats from outside the gates, and the
factory owner by a shot from his revolver caused the death of a
worker, it was held that this section did not protect him, as there was
no apprehension of death or grievous hurt.

Mithu Pandey v. State[xxvii]

Two persons armed with ‘tangi’ and ‘danta’ respectively were
supervising collection of fruit by labourers from the trees that were in
the possession of the accused persons who protested against the act.
In the altercation that followed one of the accused suffered multiple
injuries because of the assault. The accused used force resulting in
death. The Patna High Court held that the accused were entitled to the
right of private defence even to the extent of causing death.
Jassa Singh v. State of Haryana[xxviii]
The Supreme Court held that the right of private defence of property
would not extend to the causing of the death of the person who
committed such acts if the act of trespass is in respect of an open
land. Only a house trespass committed under such circumstances as
may reasonably caused death or grievous hurt is enumerated as one of
the offences under Section 103.

Conclusion

In general, private defence is an excuse for any crime against the

person or property. It also applies to the defence of a stranger, and
may be used not only against culpable but against innocent
aggressors.

The defence is allowed only when it is immediately necessary-against

threatened violence. A person who acts under a mistaken belief in the
need for defence is protected, except that the mistake must be
reasonable. In principle, it should be enough that the force used was in
fact necessary for defence, even though the actor did not know this;
but the law is not clear. There is no duty to retreat, as such, but even a
defender must wherever possible make plain his desire to withdraw
from the combat. The right of private defence is not lost by reason of
the defender’s having refused to comply with unlawful commands.

The force used in defence must be not only necessary for the purpose
of avoiding the attack but also reasonable, i.e. proportionate to the
harm threatened; the rule is best stated in the negative form that the
force must not be such that a reasonable man would have regarded it
as being out of all proportion to the danger[xxix].

The carrying of firearms and other offensive weapons is generally

forbidden, but (1) a thing is not an “offensive weapon” if it is not
offensive per se and is carried only to frighten; (2) a person does not
“have it with him” if he merely snatches it up in the emergency of
defence.

The right of defence avails against the police if they act illegally, but
the defender cannot take benefit from a mistake as to the law of arrest
or self-defence[xxx]. The traditional rule is that even death may be
inflicted in defence of the possession of a dwelling.

The occupier of premises may use necessary and reasonable force to

defend them against a trespasser, or one reasonably thought to be a
trespasser; and it seems that even a licensee (such as a lodger) can
eject trespassing strangers. It is a statutory offence to set spring guns
or mantraps, except in a dwelling house between sunset and sunrise.
It has not been decided whether the exception operates to confer an
exemption from the ordinary law of offences against the person. Such
defences as spikes and dogs are lawful if reasonable[xxxi]. Guard
dogs must, by statute, be kept under full control, except in private
houses or on agricultural land.

Thus, we can see the right of private defence is very helpful in giving
citizens a weapon which in a case that it’s not misused is subject to
certain restrictions, helps them protect their and others’ lives and
property.

Section 100 in The Indian Penal Code

100. When the right of private defence of the body extends to causing death.—The right of
private defence of the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the assailant, if the offence
which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:—
(First) — Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
(Secondly) —Such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault;
(Thirdly) — An assault with the intention of committing rape;
(Fourthly) —An assault with the intention of gratifying unnatural lust;
(Fifthly) — An assault with the intention of kidnapping or abducting;
(Sixthly) — An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be unable to have
recourse to the public authorities for his release.
http://indiankanoon.org/doc/714464/

iPC Section 96 to 106 of the penal code states the law relating to the right of private defence of person
and property.

The provisions contained in these sections give authority to a man to use necessary force against an
assailant or wrong-doer for the purpose of protecting one’s own body and property as also another’s body
and property when immediate aid from the state machinery is not readily available and in so doing he is
not answerable in law for his deeds. Section 97 says that the right of private defence is of 2 types:
(i) Right of private defence of body,
(ii) Right of private defence of property.

Body may be one’s own body or the body of another person and likewise property may be movable or
immovable and may be of oneself or of any other person. Self-help is the first rule of criminal law. The
right of private defence is absolutely necessary for the protection of one’s life, liberty and property. It is a
right inherent in a man. But the kind and amount of force is minutely regulated by law. The use of force to
protect one’s property and person is called the right of private defence.

IPC Section100. When the right of private defence of the body extends to causing
death:
The right of private defence of the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the assailant, if the offence which
occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:--
First-Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;
Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be
the consequence of such assault;
Thirdly-An assault with the intention of committing rape;
Fourthly-An assault with the intention of gratifying unnatural lust;
Fifthly-An assault with the intention of kidnapping or abducting;
Sixthly-An assault with the intention of wrongfully confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for
his release.

To invoke the provisions of sec 100, I.P.C., four conditions must exist:
• That the person exercising the right of private defense must be free from fault in bringing about the
encounter.
• There must be present an impending peril to life or of great bodily harm
• There must be no safe or reasonable mode of escape by retreat;
• There must have been a necessity for taking the life.

Moreover before taking the life of a person four cardinal conditions must be present:
(a) the accused must be free from fault in bringing the encounter;
(b) presence of impending peril to life or of great bodily harm, either real or apparent as to create an
honest belief of existing necessity;
(c) no safe or reasonable mode of escape by retreat; and
(d) a necessity for taking assailant’s life.

Yogendra Moraji vs. State:

The supreme court through Sarkaria, J. discussed in detail the extent and the limitations of the right of
private defence of body. One of the aspects emphasized by the court was that there must be no safe or
reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave
bodily harm except by inflicting death on the assailant. This aspect has create quite a confusion in the law
as it indirectly suggests that once should first try to see the possibility of a retreat than to defend by using
force which is contrary to the principle that the law does not encourage cowardice on the part of one who
is attacked. This retreat theory in fact is an acceptance of the English common law principle of defence of
body or property under which the common law courts always insisted to look first as to whether the
accused could prevent the commission of crime against him by retreating.

Nand kishore lal case:

Accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism. Nearly a
year after the abduction, the relatives of the woman’s husband came and demanded her return from the
accused. The latter refused to comply and the woman herself expressly stated her unwillingness to rejoin
her Muslim husband. Thereupon the husband’s relatives attempted to take her away by force. The
accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s
assailants, which resulted in the latter’s death. It was held that the right of the accused to defend the
woman against her assailants extended under this section to the causing of death and they had,
therefore, committed no offence.

IPC Section101. When such right extends to causing any harm other than death:
If the offence be not of any of the descriptions enumerated in the last preceding section, the right of
private defence of the body does not extend to the voluntary causing of death to the assailant, but does
extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any
harm other than death.

Mohinder Pal Jolly v. State of Punjab:-

Workers of a factory threw brickbats and the factory owner by a shot from his revolver caused the death
of a worker, it was held that this section did not protect him as there was no apprehension of death or
grievous hurt.

http://www.legalserviceindia.com/article/l470-Private-Defence.html

From the Act

The right of private defence of the body extends, under the restrictions mentioned in the last preceding section,
to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the
exercise of the right be of any of the descriptions hereinafter enumerated, namely:-

First.-Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;

Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such assault;

Thirdly.-An assault with the intention of committing rape;

Fourthly.-An assault with the intention of gratifying unnatural lust;

Fifthly.-An assault with the intention of kidnapping or abducting;

Sixthly.-An assault with the intention of wrongfully confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his
release.
http://www.lawnotes.in/Section_100_of_Indian_Penal_Code,_1860

The extent of the injury that can be inflicted in exercising the right of self-defence is
limited except in cases as referred in Sections 100 and 103 of the Code. Section 100
provides that the right of private defence of the body extends to the voluntary causing of
death or of any other harm to the assailant, if the offence which occasions the exercise
of the right of any of the following descriptions:
(i) Such an assault as may reasonably cause the apprehension that death will otherwise
be the consequence of such assault; (ii) such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the consequence of such assault; (iii)
an assault with the intention of committing rape; (iv) an assault with the intention of
gratifying unnatural lust; (v) an assault with the intention of kidnapping or abducting; (vi)
an assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse
to the public authorities for his release.

If B attempts to horsewhip A in such a manner as to cause grievous hurt to A. A draws a

pistol. B persists in the assault. A, believing in good faith that he can by no other means
prevent himself from being horsewhipped shoots B dead. A is guilty of no offence.
A husband noticed another man trying to rape his wife who was trying to get out of his
clutches. The husband gave a quick succession of lathi blows resulting in the death of
the man and rescued his wife. It was held that the husband acted in exercise of his right
of private defence which he did not exceed.

Under this section, the person claiming the right of private defence must be under bona
fide apprehension or fear that death or grievous hurt would otherwise be the
consequence of the attack on him if he did not defend himself. The accused may not
even wait till the causing of the grievous injury.

An intruder (the deceased) armed with knife attacked the accused. Accused managed
to get hold of the knife held by the deceased and in order to save himself he inflicted
injuries on deceased. In these circumstances the accused acted in exercise of right of
private defence of person.

Whether apprehension was reasonable or not is a question of fact depending on the

weapons used, etc. It may be noted here that mere abduction is not an offence and,
therefore, cannot give rise to any right of private defence.

An attempt by a husband to abduct his wife forcibly is an unlawful act and she is
justified in using force to resist the attempt in self-defence under Section 100. When a
woman was being abducted, even though by her husband, and there was an assault on
her and she was being compelled by force to go away from her paramour’s house, the
paramour and his brother would have the right of private defence of the body against an
assault by her husband with an intention of abducting her by force and the right would
extend even to the causing of death.

Again where it was found that : (1) the land was in possession of the accused persons;
(2) paddy crop had been grown by the accused persons and the same was ready for
harvesting; (3) the deceased and their people were the aggressors; and (4) when the
accused persons tried to resist the attempt of the deceased and their group in the
matter of harvesting of the paddy crop, two of the accused persons were badly beaten
up and they suffered grievous injuries and there was a further finding that these two
accused were first injured by the aggressors, the Supreme Court held that the accused
were entitled in the exercise of the right of private defence of the body to cause death.

The party of the deceased was armed with sharp cutting instruments by the use of
which injuries on the two accused persons had been inflicted. The blows were on a vital
part of these two accused persons. If there was no resistance offered it was very likely
that with some further blows death would have occurred so as to give rise the first
contingency indicated in Section 100. Grievous hurt had been caused which gave rise
to the second contingency.

In this connection it is quite significant to note that it has been the consistent view of the
Supreme Court of India that where the right of private defence of person is exceeded it
loses its credit and no protection of Section 100 can be availed.

However, it indicates the absence of pre-plan on the part of accused or person proved
to have exceeded the right of private defence of person.

In Rampbal v. State of Haryana, there was no prior enmity between two groups but the
whole incident developed all of a sudden. In this process the accused sustained many
injuries on his body and the same were unexplained by the prosecution.

The single act of the accused caused death of deceased. The Apex Court held that
such act must be taken to have been caused in exercise of right of private defence of
person and benefit of doubt must be given to the accused.

The fact situation involved in Buta Singh v. State of Punjab is more instructive in this
regard. There the deceased and his companions had gone to the disputed field to have
it tilled. But their efforts were frustrated by the son of the accused.

They were annoyed and enraged. They, therefore, went to the ‘dera’ (camp) of the
accused and launched an attack. The accused and his wife fought to repel the attack
and in the course of the incident both sides sustained injuries and one of the members
of the attacking party died.
It was held that the accused could not be said to have exceeded the right of private
defence for the obvious reason the accused could not have weighed in golden scales in
the heat of the moment the number of injuries required to disarm his assailants who
were armed with lethal weapons’.

Discussing Section 100 of the Penal Code the Supreme Court, in Suresh v. State of
Haryana, has held if the assault is likely to cause death or grievous hurt ,the accused
person has a right of private defence which can extend even to cause death of the
attacking party

http://www.shareyouressays.com/119698/section-100-of-indian-penal-code-explained

ovisions of Section 100 of Indian Penal Code, 1860.

When the right of private defence of the body extends to causing death:
This section shows that the criminal law of our country recognises the fact that there
can be certain situations wherein a person may have no other way-out except to cause
even death while exercising right of private defence of body. These situations have
been identified in the form of six clauses under this section.

The section clearly states at the outset that the six circumstances under which any harm
extending to even death of the assailant may be voluntarily caused is subject to the
general restrictions laid down by section 99 to the Code. The section gives to the
defender the right to cause death or any other harm to the assailant voluntarily if any of
the circumstances mentioned herein is present.
 Image Source: northcarolina.edu

The words ‘voluntary causing’ used in the section has the same meaning as of
‘voluntarily’ given in section 39 of the Code. The six circumstances enumerated under
this section wherein even death of the assailant may be caused in right of private
defence of body are:

Firstly, where the assault on the part on the assailant may cause a reasonable
apprehension of death in the mind of the defender. In other words, if the circumstances
are such that the defender feels that if he does not cause the death of the assailant
there is reasonable apprehension that he would cause his death, he has a right to
cause death of the attacker. The word ‘assault’ used in this section has the same
meaning as given in section 351 of the Code.

Secondly, if the defender has reasonable apprehension that the assault on the part of
the attacker may result in grievous hurt, he has a right to cause his death. ‘Grievous
hurt’ has been defined in section 320 of the Code.

Thirdly, where the assailant commits an assault with the intention of committing rape,
the defender may cause his death. “Rape” has been defined in section 375 of the Code.
Fourthly, where the assailant commits an assault with the intention of gratifying
unnatural lust, the defender has a right to cause his death. The crime of ‘unnatural
offences’ having been defined under section 377 of the Code, the attacker’s assault
must be proved to fall within the meaning of that section.

Fifthly, the defender has a right to cause death of the assailant where the assailant
commits an assault with the intention of kidnapping or abducting. The offence of
kidnapping has been described under sections 359, 360 and 361, and that of abduction
under section 362 of the Code.

Sixthly, the right of private defence of body extends even to commit death of the
assailant where he commits an assault with the intention of committing the offence of
wrongful confinement under such circumstances as may cause a reasonable
apprehension that he will not be able to have recourse to the public authorities for his
release. The offence of wrongful confinement has been defined under section 340 of the
Code.

It is important to recollect here that section 97 of the Code gives the right of private
defence to everyone to defend his own body or property or the body or property of any
other person. Consequently, the right under section 100 is exercisable by the person
who is being attacked or by another person on his behalf.

Cases under the first clause

In Yogendra Morarji v. State, the Supreme Court through Sarkaria, J., discussed in
detail the extent and the limitations of the right of private defence of body. One of the
aspects emphasised by the Court was that there must be no safe or reasonable mode
of escape by retreat for the person confronted with an impending peril to life or of grave
bodily harm except by inflicting death on the assailant.

This aspect has created quite a confusion in the law as it indirectly suggests that one
should first try to see the possibility of a retreat than to defend by using force which is
contrary to the principle that the law does not encourage cowardice on the part of one
who is attacked.
This retreat theory in fact is an acceptance of the English common law principle of
defence of body or property under which the common law Courts always insisted to look
first as to whether the accused could prevent the commission of crime against him by
retreating.

It seems that the case of Jaidev v. State was not cited in the Yogendra Morarji’s case.
In that case Justice Gajendragadkar has specifically held in the Supreme Court that in
India there is no such rule which expects a person first to run away or at least try to do
so before he can exercise his right of private defence.

It seems that Jaidev’s decision is the correct exposition of the law. Glanville Williams
also looks at the retreat part with contempt when he states that one would like to ask: if
a person is attacked by an armed burglar in his own room, is he expected to run away
leaving the burglar to act as he liked.

The retreat principle has now been abolished in England by section 3, Criminal Law Act,
1967. Since then there has been a large number of English (and American too)
decisions wherein the retreat law has not been followed. This all the more strengthens
the view that this rule should have no existence in India.

In Mohammed Khan v. State, factionalism developed in a village as a result to which

one faction left and shifted to a new site of residence near the mosque. Both factions
offered Idd prayers and while the faction still occupying the old village was returning
after the prayers, it was waylaid by the other group which has shifted to the new site.
Arms were used by both the factions resulting in death of a few and grievous hurt to
some others.

The Supreme Court held that both the groups had a right to offer ldd prayers in the
mosque and, therefore, when the residents of the old village were attacked on their
return, they had a right to defend by using force which was not challenged as excessive.

In Sardari Lai v. Emp., the deceased caught hold of the testicles of the accused during
the course of a quarrel and pressed them hard. The accused picked up a knife lying
nearby and gave two blows by it killing the deceased. It was held that since pressing of
testicles could lead to death of the accused, he had a right to kill the deceased by using
reasonable force against him.

In Nabia Bai v. State, the deceased attacked the accused lady by a knife causing
serious injuries. She managed to extricate herself and snatch the knife. She inflicted
some wounds to save herself as a result of which he died. The Supreme Court held that
she had acted in right of private defence.

In Laomi Kirsani v. State, the deceased was armed with an axe. He slapped a person.
One of the accused snatched his axe and gave blows on him by it resulting in his death.
The plea of private defence was rejected because once the axe was snatched away
from him, there could not be any reasonable apprehension of death or grievous hurt
justifying killing him.

In Jai Prakash v. Delhi Administration there was a hot exchange of words between the
accused and the deceased as a result of which the accused stabbed the deceased to
death. The Supreme Court observed that mere verbal exchanges, however, hot, do not
justify killing as there is no reasonable apprehension of death, or for that matter no
clause of section 100 of the Code can be applicable.

Ajit Singh v. Stated is a decision on an important aspect of private defence, viz, whether
the starter of a quarrel or fight can claim this right. The facts were that the accused,
armed with a spear, abused the deceased who was armed with a dang and in an
excited mood. The deceased inflicted the first blow by the dang on the accused who
gave one spear blow resulting in the death of the deceased.

The Punjab and Haryana High Court held that the accused had acted in his right of
private defence. Even though the accused had started the quarrel first by abusing the
deceased, this did not give the deceased the right to take the law in his hands.
Consequently, if the deceased, being infuriated by the abuse, attacked the accused by
the dang, the accused had the right to use reasonable force in his defence to ward off
the attack. But in Kashmiri Lai v. State of Punjab, the Supreme Court ruled that right of
private defence is not available to a person who himself is aggressor and unlawfully
attacks another person.
In Mukhtiar Singh v. Stated it was held that the right of private defence in no case
extends to killing an intervener who is without arms and who in no way has attempted to
assault the accused or incited him.

Guljara Singh v. State, lays down two important principles. The Supreme Court has held
in this case that the right of private defence arises not only against one who actually
inflicts a blow but also against all members of an unlawful assembly which is engaged in
doing the act in prosecution of common object of the unlawful assembly.

It was also emphasised by the Court that it is not necessary that the accused must
plead this right always to warrant an acquittal. If the Court is satisfied that the
circumstances of the case showed that the accused was exercising this right it does not
matter at all whether he pleads this defence or not, and the Court must give him this
benefit.

There seem to be at least two cogent reasons behind this principle. First, the primary
duty of the Courts being to do justice, they must grant him this right once they are
convinced that he had acted under this right. Secondly, what defence should be
pleaded by the accused is decided by his lawyer who attempts to do what he thinks is
best for his client, and an honest error of judgment on his part should in no case be
allowed to seal the fate of the accused.

In Narayan Singh v. State of Haryana, the Supreme Court held that raising of plea of
private defence is not necessary. If the circumstances point towards its legitimate use,
the court can consider this. In the present case, the accused persons went armed with
gun and jailies to plough the field of the deceased.

When the deceased tried to prevent them from sowing of jowar in the field the accused
persons fired at and assaulted the deceased. The Supreme Court held that the accused
were not entitled to private defence and were convicted under section 304, Part II.
However, the punishment of imprisonment for ten years awarded by the High Court was
reduced to seven years.
In Ranveer Singh v. State of Madhya Pradesh} the accused appellant and his son were
thrashing the family members of the complainant. Hearing his shouts the complainant
with many others reached the spot. The accused thereupon asked his son to bring gun.
On exhortation given by the accused his son fired a shot which hit the sister of the
complainant and proved fatal.

The Supreme Court held that the accused had exceeded his right of private defence
and convicted them under section 304, Part I read with sections 109 and 34. The Court
also stated that the specific plea of private defence need not be raised.

In Arun v. State of Maharashtra? and in Hanumantappa Bhimappa Dalavai v. State of

Karnataka, the Supreme Court stated that it is not necessary for the accused to prove
private defence and if circumstances are such as to show private defence, it is open for
the court to consider private defence. The burden of accused stands discharged by
showing preponderance of probabilities in favour of that plea. The appeal was
dismissed as private defence was not proved.

In Dhiria Bhavji v. State, it has been held by the Gujarat High Court that an
apprehension in the mind of the accused that the deceased might cause his death by
witchcraft cannot be accepted as a reasonable apprehension within the meaning of this
section because there has been no ‘assault’. Consequently, unless he apprehends
physical violence from his opponent he cannot be held to have a right of private defence
against’ him.

In Abdul Kadir v. Stated the accused persons were in possession of a piece of land on
which they had grown paddy crop. The deceased persons along with some others
reached their armed with some sharp cutting-instruments with a view to harvest the
crop. On being resisted they inflicted serious injuries on vital parts of two of the accused
persons.

This created a reasonable apprehension in their mind that they would be killed by the
deceased party. They, therefore, defended by force with the weapons they had. The
Supreme Court held that they had a right of private defence of body and property and
were thus not liable.
In Ram Phal v. State, there was no prior enmity between two groups and the whole
incident developed suddenly. The accused persons received many injuries some on
vital parts also. The prosecution failed to explain these injuries. It was held that the plea
that the accused had inflicted injuries on the deceased in private defence was quite
probable.

Only one injury was inflicted by the accused on the head of the deceased who
unfortunately succumbed. The accused could not be said to have exceeded right of
private defence. Benefit of doubt was given to them.

In State of U.P. v. Roop Singh, the allegations were that the accused persons armed
with sticks and lathis assaulted the deceased causing his death. The accused chased
and killed one of the deceased who fled away from the scene of occurrence. It was held
by the Supreme Court that they cannot have the right of private defence as regards the
killing of such a deceased. Their acquittal was set aside and they were held guilty under
sections 302/149 of the Code.

In Masilamani v. State of Tamilnadu} injury on the backside of the accused which could
not be explained by the prosecution showed that the accused was chased by the
deceased and deceased was the aggressor. This was supported by medical evidence
which did not reveal any injury on the backside of the deceased. The evidence on
record showed that the accused was in imminent danger of death and so he inflicted
injuries on deceased in exercise of his right of private defence.

Further, non-examination of the investigating officer by the prosecution caused great

prejudice to the accused. The Madras High Court held that in the circumstances the
finding of the lower court that the accused exceeded private defence is not proper.

Cases under the second clause

In Janab Ali Shaikh v. State? the deceased attacked the accused by a ‘panchan’, a lathi
like object which could cause only simple injury and not grievous injury. The accused
resisted by a ‘faura’ (spade) and caused fracture of frontal bone of the deceased’s head
resulting in his death. The Supreme Court held that the accused was not entitled to the
right of private defence extending up to this extent.
In Raghavan Achari v. State, the accused found his wife in a compromising position with
the deceased. He developed grave and sudden provocation by this incident. But the
deceased attacked him and caused multiple injuries including grievous injury to the
accused who thereafter caused death of the deceased by a chopper. Reversing the
decision of the Kerala High Court the Supreme Court held that the accused was acting
under his right of private defence under clause (2) of section 100 and was, therefore,
not liable for the deceased’s death.

In Deo Narain v. State, the Supreme Court observed that when a vital part like the head
is aimed to be hit by a blunt weapon like lathi, it creates a reasonable apprehension of
grievous hurt or even death in the mind of the defender. Consequently, the use of spear
by the defender may be held to be justified as he is not expected to weigh in golden
scales the amount of force necessary to stop the aggression.

The Gauhati High Court has held in Madan Chandra Dutta v. State, that where the
deceased first hit the accused by a heavy lathi and then attacked him by a dao causing
an incised wound, he had already caused grievous bodily injury on the accused entitling
him to use reasonable force even to the extent of causing his death and this right had
already accrued as soon as there was a reasonable apprehension of impending
grievous hurt in the mind of the accused.

In Onkarnath Singh v. State, the appellant has slapped two teenaged boys one of whom
complained about it to his two cousins who confronted the first appellant in presence of
his brother, the second appellant, and asked him as to why had he done so.

When the first appellant repeated that he would again do so, the first and the second
appellants were pinned down on the ground by the two cousins. The cousin then left the
place and within a short distance they were surrounded by the first two appellants
armed with a gandasa and a spear respectively and three others armed with lathis.

The first appellant gave a gandasa blow on the head of one and the second a spear
blow on the abdomen of the other cousin while the other three kept on inflicting lathi
blows on them. The spear blow proved fatal. The Supreme Court rejected the plea of
private defence itself and thus of exceeding the right of private defence under the
second exception to section 300 of the Code saying that there was no apprehension
from the two victims where they were surrounded and attacked. The reason of the
attack seemed to be taking revenge and gratifying the hurt feelings when the first two
appellants were first spoken to by the victims about the slapping incident and
subsequently pinned by them on the ground.

In Bhawan Swaroop v. State, the father of the accused was being beaten by lathis by
the complainant party. The accused fired from a gun to defend his father. It was held
that he was acting under his right to private defence and the fact whether the injuries
caused on his father by lathi blows were simple or grievous was not relevant.

Cases under the third clause

In Prakash Chandra v. State? some persons went into the house of the appellants in the
night and started dragging out a married woman of about 25 years of age and causing
her injuries with the intention of having sexual intercourse with her. The husband of the
lady and other in-laws inflicted injuries on them by using force resulting into death of
one of them.

It was held by the Rajasthan High Court that the appellants were entitled to the benefit
of section 100 of the Indian Penal Code as they were exercising their right of private
defence. Persons going at the odd hour of night to the house and dragging a married
woman out are sufficient circumstances for her husband and other in-laws to have used
reasonable force. Since the dragging was done with the intention of seducing her to
sexual intercourse, it was clearly a case of atrocity on the weaker sex of the society
according to the Court.

In State v. Nirupama Panda, the Orissa High Court held that the extra-judicial
confession of the accused that she had stabbed the deceased because he outraged her
modesty cannot be used as an incriminating piece of evidence against her because she
had every right to save her honour even by causing death of the person who either
committed rape on her or attempted to commit the same.

The Court went on to emphasise that after her widowhood the accused led an immoral
life by living as a mistress of someone is of little consequence because even a whore is
entitled under law to protect herself from attack of intending rapist. The Court acquitted
her on the ground of private defence.

In Badan Nath v. State, the deceased committed assault on the daughter of the
accused with the intention of raping her. The Rajasthan High Court held that the
accused was entitled to the benefit of right of private defence of the person of his
daughter.

Cases under the fifth clause

In Vishwanath v. State? a married woman whose relations with her husband were
strained was residing with her brother, the accused. The requests of the husband that
the wife must return to him were not complied with. On the day of the incident the
husband alongwith some other, persons went to the home of the accused to bring back
his wife. While his other companions waited outside, he went inside and started
dragging his unwilling wife by hand.

The accused, who at that time was standing outside with the husband’s companions,
became agitated. He pulled out a small knife from his pocket and inflicted one blow by it
which fell on his heart as a result of which he died. It was held by the Supreme Court
that since the deceased husband had committed an assault with the intention of
abducting her, clause 5 of section 100 of the Code gave a right of private defence to the
accused even to the extent of causing his death.

The Court was satisfied that since only one blow was inflicted, the condition under
section 99 that no more harm than necessary for the purpose of defence should be
caused was adhered to even though that single blow by falling on the heart caused the
death.

While in the above discussed case a brother used force to prevent his sister from being
abducted, in Nankau v. State, a paramour of a married woman, who left her husband
and came to reside with him voluntarily, and his brother used force against her husband
who assaulted her with a view to compel her by force to leave her paramour’s house
and come with him.
It was held by the Allahabad High Court that since section 97 of the Code gave the right
of private defence to everyone to intervene on anyone else’s behalf, the paramour and
his brother were protected under clause 5 of section 100 for causing death of even the
husband of the woman.

In Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Balkrishna, – the

accused had eaten at a restaurant and ran away without making payment bill. He had
beaten an employee of the restaurant also. When he was being chased and caught by
the employees of the restaurant with the view to compel him to make the payment or to
hand him over to the police for taking necessary action against him for assaulting an
employee, he attacked an employee who was killed. On being prosecuted for the
murder, he pleaded that he had a right of private defence to cause death as he was
assaulted by the employees with the intention of abducting him.

The Andhra Pradesh High Court held that in a situation like this if an attempt is made by
one to catch another for recovering his dues or for surrendering him to the police for
having assaulted another, it does not constitute an act of assault with the intention of
abducting and consequently there is no right of private defence under this clause.

In Nand Kishore Lai v. Emp. a Muslim married woman was abducted by certain Sikhs
and converted to Sikhism. When after about a year her husband and some of his
relatives came and demanded her return from the accused they rejected the demand
and the woman too refused to go with him. When they attempted to take her by force,
the accused party resisted by using force resulting in the death of one of the assailants.
The Patna High Court allowed the plea of private defence.

Cases under the sixth clause

In Abdul Habib v. Stated the appellant was running hard to get away from the grasp of
the pursuers. The deceased is alleged to have heard the pursuers shouting that the
appellant should be caught with a view to be taken to the police station. When the
deceased tried to get hold of the appellant with that intention, the appellant inflicted
injuries on the back and abdomen of the deceased as a result of which he died.
The accused argued that since he was being assaulted with the intention of wrongfully
confining him under circumstances which reasonably caused an apprehension that he
would be unable to take recourse to public authorities for his release, he had a right of
private defence to cause death. The Allahabad High Court held that clause 6 of section
100 did not apply as there was no such intention on the part of the deceased who was
merely trying to restrain him with the intention of marching him to the police station.

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