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LAW OF CRIMES

Final On:

TOPIC JAMES MARTIN VS STATE OF KERALA


SUB TOPIC- PRIVATE DEFENCE
BY:

In the month

FEBRUARY 2017

Under Guidance Of

Prof. RICHA JAIN

Symbiosis Law School, Hyderabad


Symbiosis International University, PUNE

C E R T IF IC AT E

The Project entitled James Martin vs. State of Kerala submitted to the Symbiosis Law
School, Hyderabad for Law of Crimes as part of Internal assessment is based on my original
work carried out under the guidance of Prof. Richa Jain from December to March. The

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research work has not been submitted elsewhere for award of any degree. The material
borrowed from other sources and incorporated in the thesis has been duly acknowledged. I
understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate

Date: 6th March, 2017

ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to Prof. Richa Jain
for his exemplary guidance, monitoring, constant encouragement and for giving me the

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opportunity to express our views and opinions on the topic James Martin vs. State of
Kerala and giving me a chance, to study on this privileged topic and acquiring knowledge
about this topic as well as its allied topics. The blessing, help and guidance given by sir time
to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to Mr. M.I Baig , The
Director, Symbiosis Law School, Hyderabad and Mr. Sukhvinder Singh Dari, The Deputy
Director, Symbiosis Law School, Hyderabad and all other faculty members for providing us
with the best facilities and for their cooperation in each and every step that we take.

Lastly, I thank The Almighty, My Family and my Friends, without whose help and constant
support, this project would have been simply impossible for me to do.

TABLE OF CONTENTS

SERIAL TOPIC PAGE


NUMBER NUMBER

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1.
ABSTRACT 5
2.
RESEARCH METHODOLOGY 6
3. PREMABLE
8

4.
INTRODUCTION 9

5. JAMES MARTIN VS STATE OF KERALA


11

6. PROCEEDINGS IN THE COURT


16

8. PRIVATE DEFENCE IN THE INDIAN LEGAL SYSTEM


18

9. JUDICIAL VIEW ON PRIVATE DEFENCE

24

10. CASE LAWS


25

11.
CONCLUSION 26

12.
BIBLIOGRAPHY 27

ABSTRACT

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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 elses 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.

RESEARCH METHODOLOGY

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SCOPE AND OBJECTIVE OF THE STUDY

The objective of the study to analyze and understand the case James Martin v. State of
kerala and how private defence plays a crucial role in the protecting property and person in
the present day.

RESEARCH METHODOLOGY

The methodology adopted is largely analytical and descriptive. Reliance has been placed
largely on secondary sources like books and articles. The lectures and classroom discussion
have been rich with valuable pointers and gave direction to the research.

CHAPTERISATION

This project has been divided in six chapters.

It consists of following chapters, Introduction (Chapter I), Facts of the cases (Chapter II),
Hypothesis (Chapter III), Rules (Chapter-IV), Case laws (Chapter V) and Conclusion
(Chapter VI).

RESEARCH QUESTIONS

1. The understanding of the court proceedings of James Martin v. State of Kerala


2. How the right of private defence is execrised
3. How the right of private defence works in the Indian legal system
4. The view of Judiciary on private defence
5. Landmark cases relating to private defence

RULES

Section 34,96,99,114,302, 307, 326 of Indian Penal Code, 1860

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Sections 25(B)(1) of the of the Arms Act, 1959 (in short 'the Act') and Sections
27 and 30 thereof

HYPOTHESIS

The state as a policy of law identifies some circumstances which are some externally
compelling circumstances and are not self created rather they arrives out of some external
sources and the accused, owing to the external compulsive circumstances acts in a particular
manner resulting into the commission of so called offence. Law takes not of such external
compulsion and considers the act to be excusable. 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
elses person or property. This is the right of private defence. But such a right is subject to
some restrictions and not available in all circumstances. 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.

MODE OF CITATION

A uniform system of citation is followed throughout in the contents

PREMABLE

The right of private defence is available to every citizen of the country. It is a right which is
inherent in an individual and can be used for protection from bodily harm and harm to
property, to the extent as regulated by and defined in the laws of the country. Sections 96 to

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106 of the Indian Penal Code pertain to the right of private defence in India. They authorise a
person to exercise necessary force for the protection of his/her physical well-being and
property as well as the protection of physical well-being and property of the persons
neighbour when there is reasonable apprehension of danger and/or imminent death and
recourse to public authorities is not possible. The right of private defence is not available
under two situations; where disproportionate force is used to retaliate and where recourse to
public authorities is possible. Reasonable apprehension of danger can be to both person and
property

INTRODUCTION

Right of self defence revolves around the general adage that necessity knows no law and it
is the primary duty of man to first help himself. The right of self-preservation is inherent in
every person but to achieve that end nothing could be done which militates against the right
of another person. The Supreme Court in a case held that right of private defence given by the
Penal Code was essentially one of defence or self-protection and not a right of reprisal or
punishment. That right was subject to the restrictions indicated in Section 99, which were as
important as the right itself. One of them was that harm inflicted in self-defence should be no
more than that was legitimately necessary for the purpose of defence. Further, the right was
co-terminus with the commencement and existence of a reasonable apprehension of danger to
body from an attempt or a threat to commit the offence as stated in Section 102 of IPC.
Attack by way of retaliation is not covered by the general exception to criminal liability. Thus
when the deceased cultivated a land whole day to the knowledge of the accused and the
accused having sufficient time to take recourse to law did not take it and on the contrary he
attacked the victim while he was retiring in the evening, this act cannot be translated as an act
in exercise of right of private defence and it was an act by way of retaliation and the accused
must be held to be guilty1. This right proves to be a shield against the evil elements of the
society but the problematic area regarding it is what if this shield will be used a sword. The
right of private defence is subject to certain restrictions, first one is that harm inflicted in
self-defence must be no more than is legitimately necessary for the purpose of defence an
important modification in this restrictions is earlier the main focus was on the weapon used

1 RamrajShukla v. State of M.P. 1992 CrLJ 1223 (MP)

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but now the focus is on the part of the body which is attacked therefore in DeoNarains Case
it has been held that the accused was justified in using his spear though the other party had
aimed only a lathi blow on the head, which being a vulnerable part even a lathi blow can
prove to be dangerous2. The second one is whether the act done in self defence was actually
for self defence. The right of private defence is available against an offence and therefore
when an act is done in exercise of right of private defence such act cannot give rise to any
private defence in favour of the agressor in return. Right of private defence is not available.
Thus when the accused himself goes with the gun toattack the victim and the victim in self-
defencereattacks, the accused by killing him cannot plead the right of self-defence3.

JAMES MARTIN VS STATE OF KERALA

Most of the shops and offices were closed and vehicles were off the road. There were isolated
instances of defiance to the bundh call and some incidents had taken place that, however, did
not escalate to uncontrolled dimensions. Cheranelloor, where the concerned incidents took
place, is a politically sensitive suburb of Kochi where accused- appellant James and his father
Xavier had their residence, besides a bread factory and a flour mill in the same compound. It
was not anybody's case that they belonged to any political party or had credentials, which
were unwholesome. By normal reckoning, their business activities flourished well. They
owned a tempo van and other vehicles which were parked inside the compound itself. It was,
however, said that their success in business was a matter of envy for Thomas Francis, their
neighbour, particularly who filed complaints to the local authorities against the conduct of the
mill and the factory and also filed a writ petition to get them closed down, but without
success. The incident was wrought by him out of hatred and deep animosity towards James
and Xavier.

The incident involved in this case took place at about 2.30 p.m. on 15.3.1988 when five
young men, the two deceased in this case, namely, Mohan and Basheer, who were activists of
the bundh, as followers of the political parties which organized that bundh on that day, got
into the flour mill through the unlocked gate leading access to that mill situate in a property
comprising the residential building, a bread factory and other structures belonging to that

2 DeoNarain, 1973 CrLJ 677(SC)


3 State of U.P v. Ram Swaroop , AIR 1974 SC 1570

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accused. This group of five men on passing beside the mill, while they were perambulating
the streets of Cheranelloor to have a first hand information as to the observance of the bundh
on coming to know of the operation of the flour mill by Xavier proceeded to that place, the
employee of Xavier who was operating the mill to close down. An altercation took place
between them and on hearing the commotion the accused, James and his father who were
inside their residential building, situate to the west of that mill, rushed to the place and
directed the bundh activists to go out of the mill.

As the activists of the bundh persisted in their demands for closing the mill, according to the
prosecution, Xavier got out of the mill and on the instruction given by Xavier, James locked
the gate of the compound from inside. Then both of them rushed back to the house with
Xavier directing James to take out the gun and shoot down the bundh activists by declaring
that all of them should be finished off.

On getting into the house and after closing the outer door of that building, both the accused
rushed to the southern room of that building which faced the gate with a window opening to
that side. The 1st accused on the instigation of his father, and having that accused beside him,
fired at the bundh activists, who by that time had approached near the locked gate, by using
an S.B.B.L. Gun through the window. The first shot fired from the gun hit against one of the
bundh activists, who had got into the compound, namely Basheer, and he fell down beside the
gate. The other four bundh activists on requesting the 1st accused not to open fire rushed
towards Basheer and, according to the prosecution, the first accused fired again with the gun
indiscriminately causing injuries to all of them. Even when the first shot was fired from the
gun passersby in the road situate in front of that property also sustained injuries. When the
firing continued as stated above some of the residents of the area who were standing beside
the road also received gun shot injuries.

On hearing the gun shots people of the locality rushed to the scene of occurrence and some of
them by scaling over the locked gate broke opened the lock and removed the injured to the
road, from where they were rushed to the hospital in a tempo van along with the other injured
who had also sustained gun shot injuries while they were standing beside the road. One
among the injured, namely, Mohanan breathed his last while he was transported in the tempo
to the hospital and another, namely, Basheer, succumbed to his injuries after being admitted at
City Hospital, Ernakulam. All the other injured were admitted in that hospital to provide them
treatment for the injuries sustained. After the removal of the injured to the hospital in the
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tempo as aforesaid a violent mob which collected at the scene of occurrence set fire to the
residential building, flour mill, bread factory, household articles, cycles, a tempo and scooter,
parked in front of the residential building of the accused, infuriated by the heinous act of the
accused in firing at the bundh activists and other innocent people as aforesaid. Soon after the
firing both the accused and they escaped from the scene of occurrence and took shelter in a
nearby house.

The information as to the occurrence of a skirmish and altercation between bundh activists
and the accused and of an incident involving firing at Cheranelloor was received by the
police at Kalamassery Police Station from the Fire Station at Gandhi Nagar, Ernakulam,
which was informed of such an incident over phone by a resident living close to the place of
occurrence.

The accused on the other hand, took the stand that the firing resulting in the death of two
bundh activists and sustaining of grievous injuries to several others occurred when their
house and other buildings, situated in a common compound bounded with well protected
boundary walls, and movable properties kept therein were set on fire by an angry mob of
bundh activists when the accused failed to heed their unlawful demand to close down the
flour mill which was operated on that day.

PROCEEDINGS IN THE COURT

The conviction was made by the trial Court and sentence was imposed. The trial Court came
to hold that though the accused persons claimed alleged exercise of right of private defence
same was exceeded. The view was endorsed by the High Court by the impugned judgment so
far as the present appellant is concerned. But benefit of doubt was given to father of the
present appellant.

Mr. Sushil Kumar, learned senior counsel for the appellant submitted that the factual scenario
clearly shows as to how the appellant was faced with the violent acts of the prosecution
witnesses. Admittedly, all of them had forcibly entered into the premises of the appellant.
One of employees was inflicted severe injuries. In this background, the accused acted in

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exercise of right of private defence and there was no question of exceeding such right, as held
by the trial Court and the High Court.

Self-preservation is the prime instinct of every human being. The right of private defence is a
recognized right in the criminal law. Therefore, Section 96 of Indian Penal Code, 1860 (in
short 'the IPC') provides that nothing is an offence which is done in the exercise of the right
of privatedefence. The question is, as happens in many cases, where exercise of such rights is
claimed, whether the "Lakshman Rekha", applicable to its exercise has been
exceeded. Section 99 IPC delineates the extent to which the right may be exercised.

In response, learned counsel for the State submitted that after analyzing the factual position
the trial Court and the High Court have rightly held that the accused exceeded the right
of privatedefence and when two persons have lost lives, it cannot be said that the act done by
the accused was within the permissible limits. He also pressed for accepting prayer in the
connected SLPs relating to acquittal of A-2 and conviction of the accused-appellant under
Section 304 Part I.

Only question which needs to be considered, is the alleged exercise of right


of private defence. Section 96, IPC provides that nothing is an offence which is done in the
exercise of the right of private defence. The Section does not define the expression 'right
of private defence'. It merely indicates that nothing is an offence which is done in the exercise
of such right. Whether in a particular set of circumstances, a person legitimately acted in the
exercise of the right of private defence is a question of fact to be determined on the facts and
circumstances of each case. No test in the abstract for determining such a question can be laid
down. In determining this question of fact, the Court must consider all the surrounding
circumstances. It is not necessary for the accused to plead in so many words that he acted in
self-defence. If the circumstances show that the right of private defence was legitimately
exercised, it is open to the Court to consider such a plea. In a given case the Court can
consider it even if the accused has not taken it, if the same is available to be considered from
the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short
'the Evidence Act'), the burden of proof is on the accused, who sets up the plea of self-
defence, and, in the absence of proof, it is not possible for the Court to presume the truth of
the plea of self-defence. The Court shall presume the absence of such circumstances. It is for
the accused to place necessary material on record either by himself adducing positive
evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An
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accused taking the plea of the right of private defence is not necessarily required to call
evidence; he can establish his plea by reference to circumstances transpiring from the
prosecution evidence itself. The question in such a case would be a question of assessing the
true effect of the prosecution evidence, and not a question of the accused discharging any
burden. Where the right of private defence is pleaded, the defence must be a reasonable and
probable version satisfying the Court that the harm caused by the accused was necessary for
either warding off the attack or for forestalling the further reasonable apprehension from the
side of the accused. The burden of establishing the plea of self-defence is on the accused and
the burden stands discharged by showing preponderance of probabilities in favour of that plea
on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi
Administration (AIR 1968 SC 702), State of Gujarat v. Bai Fatima (AIR 1975 SC
1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226), and Mohinder Pal Jolly v.
State of Punjab (AIR 1979 SC 577). Sections 100 to 101 define the extent of the right
of private defence of body. If a person has a right of private defence of body under Section
97, that right extends under Section 100 to causing death if there is reasonable apprehension
that death or grievous hurt would be the consequence of the assault. The oft quoted
observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:

The accused need not prove the existence of the right of private defence beyond reasonable
doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is
in favour of his plea.

The number of injuries is not always a safe criterion for determining who the aggressor was.
It cannot be stated as a universal rule that whenever the injuries are on the body of the
accused persons, a presumption must necessarily be raised that the accused persons had
caused injuries in exercise of the right of private defence. The defence has to further establish
that the injuries so caused on the accused probabilise the version of the right
of private defence. Non- explanation of the injuries sustained by the accused at about the time
of occurrence or in the course of altercation is a very important circumstance. But mere non-
explanation of the injuries by the prosecution may not affect the prosecution case in all cases.
This principle applies to cases where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the
part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR

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1976 SC 2263)]. A plea of right of privatedefence cannot be based on surmises and
speculation. While considering whether the right of private defence is available to an accused,
it is not relevant whether he may have a chance to inflict severe and mortal injury on the
aggressor. In order to find whether the right of private defence is available to an accused, the
entire incident must be examined with care and viewed in its proper setting. Section 97 deals
with the subject matter of right of private defence. The plea of right comprises the body or
property (i) of the person exercising the right; or (ii) of any other person; and the right may be
exercised in the case of any offence against the body, and in the case of offences of theft,
robbery, mischief or criminal trespass, and attempts at such offences in relation to
property. Section 99 lays down the limits of the right of private defence. Sections
96 and 98 give a right of private defence against certain offences and acts. The right given
under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right
of private defenceextending to voluntary causing of death, the accused must show that there
were circumstances giving rise to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him. The burden is on the accused to show that he had a
right of private defence which extended to causing of death. Sections
100 and 101, IPC define the limit and extent of right of private defence.

As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is
apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and
in the heat of circumstances, the number of injuries required to disarm the assailants who
were armed with weapons. In moments of excitement and disturbed mental equilibrium it is
often difficult to expect the parties to preserve composure and use exactly only so much force
in retaliation commensurate with the danger apprehended to him where assault is imminent
by use of force, it would be lawful to repel the force in self-defence and the right of private-
defence commences, as soon as the threat becomes so imminent. Such situations have to be
pragmatically viewed and not with high- powered spectacles or microscopes to detect slight
or even marginal overstepping. Due weightage has to be given to, and hyper technical
approach has to be avoided in considering what happens on the spur of the moment on the
spot and keeping in view normal human reaction and conduct, where self-preservation is the
paramount consideration. But, if the fact situation shows that in the guise of self-preservation,
what really has been done is to assault the original aggressor, even after the cause of
reasonable apprehension has disappeared, the plea of right of private-defence can legitimately

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be negatived. The Court dealing with the plea has to weigh the material to conclude whether
the plea is acceptable. It is essentially, as noted above, a finding of fact.

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.
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. 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.

RIGHTS OF PRIVATE DEFENCE

The terms 'Private Defence' and 'Self Defence' are synonymous to each other. In fact they
carry one and the same meaning. Latin words, 'Se Defendendo' stand for the same. In the
olden days, when the civilization had not dawned, only one law had its effective play and that
was 'might is right'. With the advancement of society the State took up the task of protecting
the person and property of its subject, but experiences were that the State was exclusively -
unable to guarantee such protection and thereby its subject were privileged to protect their
person and property by causing injuries, simple and grievous, within their reasonable
restrictions, to them who intended to pose such danger to person and property.

Sections 96 to 106 of the Indian Penal Code deal with the right of private defence of person
and property. This right is based on two principles, (I), It is available against the aggressor
only, and (II), the right is available only when the defender entertains reasonable
apprehension. There are three tests for ascertaining reasonable apprehension; they are
objective, subjective and expanded objective. While objective test emphasises as to how in a
similar circumstance an ordinary, reasonable, standard and average person will response, the
subjective test examines the mental state based on individualistic attitude. However,

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expanded objective test, being the combination of aforesaid, two tests, bases its inquiry on an
individual as a person and inquiry is furthered to determine whether or not the individual
acted as a reasonable person. Right of private defence serves social purpose and the right
should be liberally construed. Such a right will not only be a restraining influence on bad
characters but will also encourage manly spirit in a law abiding citizen 4. It is a very valuable
right. It has a social purpose. It should not be narrowly construed. It necessitates the
occasions for the exercise of this right as an effective means of protection against wrong
doers5.

In judging whether the accused has exceeded his right to private defence or not, the court has
to take into account the weapons used particularly in a case of firing and the number of shots
that were fired6. In such a case where it was not possible to disengage the truth from
falsehood and to sift the grain from the chaff, because the truth and falsehood were so
inextricably inter twined together, the prosecution was found to have failed to prove the case
beyond reasonable doubt and it was held that the accused could not be said to have exceeded
his right of private defence7.

From the point of view of prosecution, it can now be safely said that there are two basic
principles of criminal justice system, one, there is presumption of Innocence in favour of the
accused, and second, it is for the prosecution to prove the guilt beyond all reasonable doubts.

However, the questions are as to in what manner plea of private defence can be introduced by
the accused and as to how the burden of proving the plea of private defence can be
discharged. Many debates on both the counts have been made. Now the law is clear.

Evidence establishing a plea of private defence may be Introduced by the prosecution itself or
it may be introduced by the defence by the cross examination of the witnesses or by the
statement of accused u/s 313 Cr. P.C. or by the defence evidence 8. Plea of private defence,
even if not taken in trial court, can be taken in appeal9. Even the accused can rely on
circumstances and admissions made by the witnesses in support of his plea of self-defence,

4 Munshi Ram v. delhi Administration AIR 1968 SC 702 2


5 Vidya Singh v. State of M.P,. AIR 1971 SC 1857
6 Madan Mohan Pandey v, State ot U,P" 1991 Cr, L,J, 467 (S.C).
7 Biri Singh v. State of U.P., 1992 Cr.L.J.1510 (S.C.). S Kamta v. State, 1978 All W.C. 281.
8 Kamta v. State, 1978 All W.C. 281
9 Ahir Raja Ladha v. State of Gujarat, (1969)2 S.C.W.R. 828 ( 831)

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without even setting up a specific plea. It was held that it was not a right approach to question
that the plea was put forward during the trial and not during investigation10.

Section 105 of Indian Evidence Act. 1872 casts a burden on accused to prove exception of
defence and in absence of proof it is not possible for the court to presume the truth of the plea
of self defence11.

In nine Judges bench of Allahabad High Court,12 the question for consideration was as to
whether the views of Seven Judges 13 were still a good law. While declaring that the majority
decision in Parbhoo v. Emperor14 is still, good law, it was held that the accused person who
pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a
whole (including the evidence given in support of the plea of the general exception) a
reasonable doubt is created in the mind of the court about the guilt of the accused. Discussing
it further, it was observed that the majority of their Lordships did not lay down anything
beyond three important propositions which, if not either directly or indirectly supported by
decisions of their Lordships of the Supreme Court, have not been affected in the slightest
degree by these decisions. These propositions are: firstly, that no evidence appearing in the
case to support the exception pleaded by the accused can be excluded altogether from
consideration on the ground that the accused has not proved his plea fully; secondly, that the
obligatory presumption at the end of Section 105 is necessarily lifted at least when there is
enough evidence on record to justify giving the benefit of doubt to the accused on the
question whether he is guilty of the offence with which he is charged; and thirdly, if the
doubt, though raised due to evidence in support of the exception pleaded, is reasonable and
affects an ingredient of the offence with which the accused is charged, the accused would be
entitled to an acquittal. Even if the accused falls to establish to the satisfaction of the court,
the plea of private defence, it is enough, if a reasonable doubt arises on examination of the

10 Bahadur Singh v. State of Punjab. 1993 S.C.C. (Cr.) 94


11 Narain Singh v. State of Punjab. (1964) 1 Cr.L.J.730, Ram Dahir v. State of Bihar. 1970 S.C. Cr. R.557: State
of U.P. v. Ram Swaroop, AIR 1974 S.C. 1570. Salim Zia v. State Of U.P., AIR 1979 S.C. 391, Mohindra Pal v.
State of Punjab, AIR 1979 S.C. 577
12 Rishikesh Singh v. state of U.P, AIR 1970 All 51 (FB)
13Parbhoo v. Emperor AIR 1941 All. 402 (F.B.)
14 ibid

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probabilities of the case15. Accused need not prove the same beyond reasonable doubt.
However, the circumstances should at least probabilise the same16.

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 17. 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.

15 1Munshi Ram v. Delhi Administration, AIR 1968 S.C. 702; State of U.P. v. Ram Swaroop, AIR 1974 S.C. 1570;
State of Gujarat v. Bai Fatima, AIR 1975 SC 1478; State of U.P. v. Mohd. Museer Khan, AIR 1977 SC 1897;
Mohinder Pal v. State of Punjab, AIR 1979 SC 577; Salim Zia v. State of U.P., AIR 1979 SC 391; Ram Phal v. State
of Haryana, AIR 1993 SC 1979.
16 Ballam Singh v. State of Haryana, 1994 Supp. (1) S.C.C. 92 = 1994 SCC (Cr.) 196
17 http://laws.puchd.ac.in/includes/theses/2010/20101012155857-Summary%20%20Dharam%20Pal
%20Punia.pdf .

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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

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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 property18.

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 illegal19. 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:

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

19 www.legalsutra.com//rightprivate-defence/Criminal-Law-Right-of-Private-defence.

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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 death20.

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

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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 ones 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 imminent21.

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 22. 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:-
21 http://www.legalserviceindia.com/article/l470-Private-Defence.html.
22 www.e-lawresources.co.uk/Public-and-private-defences.php.

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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 way23. 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 recovered24. 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

23 scienceblogs.com/deltoid/2000/01/01/selfdefence/ .
24 http://www.legalserviceindia.com/article/l470-Private-Defence.html.

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right without risk of harm to an innocent person his right or private defence extends to the
running of that risk.

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. Nothing is an offence, which is done in the exercise
of the right of private defence. Section 96 is a declaratory provision wherein it is expressly
provided that if anything i.e. any harm is caused in the exercise of ones right to private
defence then it will not be an offence. Therefore the accused, in order to take the benefit of
section 96, shall prove that he was acting with the domain of his right to private defence.
Thus the issue arises as to what will be the domain of ones right to private defence and it is
here that the various provision from section 97 till 106 will be applicable. 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 and 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. In
the cases of body the right is available with respect to any offence against human body
whereas in the matters of property it is available only in case of theft, robbery, mischief,
criminal trespass. These are those offences of property in which there is a sense of physical
urgency and these are considered to be fit cases for private defence.

JUDICIAL VIEW ON 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. 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. Evidently, the local
courts have adopted a strict objective approach in determining reasonable apprehension,
ignoring its inherent ambiguity.

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CASE LAWS

DARSHAN SINGH V. STATE OF PUNJAB

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.

YOGENDRA MORAJI V. STATE

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.

JASSA SINGH V. STATE OF HARYANA

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.

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CONCLUSION

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

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BIBLIOGRAPHY

BOOKS

Ratanlal & Dhirajlal(Cr.P.C.)


K.D.Kaur(IPC)
M P Jain(Constitution)
Dr Hari Singh Gaur(IPC)
S. C. Sarkar(IPC)

WEBSITES

https://indiankanoon.org
http://www.wbja.nic.in/
http://highcourt.cg.gov.in/
http://www.slideshare.net/
http://www.manupatrafast.in/
http://www.scconline.com/
https://books.google.co.in
http://judis.nic.in/

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