RIGHT OF PRIVATE DEFENCE

Introduction

There are circumstances when the state mechanism may not be accessible to the citizens to
defend themselves in case of impending danger, and in those situations, a person is allowed
to employ force to avert the impending threat. People have the right to protect themselves
when state aid cannot be obtained and this right is called the right of private defence of body.
This right is provided under Sections 96-106 of the Indian Penal Code (IPC). However, this
right can only be exercised when the circumstances justify it and not otherwise. The right of
private defence is subject to restrictions given under Section 99 of the IPC. Section 99 1
provides that the right to private defence cannot be availed when there is sufficient time to
take recourse to the public authorities, and also not against a public servant acting in good
faith under a legal duty unless reasonable apprehension is caused. It also provides that force
used must not be excessive than is necessary to ward off the impending threat. In certain
circumstances, the right of private defence also extends to causing death of the person who
poses such a danger. This right is provided under Section 100 of the IPC. In order to avail
this, there must be reasonable apprehension that death or grievous hurt might be caused, or in
case of assault with intention of committing rape, abducting, wrongfully confining a person
or when there is apprehension of throwing or attempting to throw acid. Although the law
permits causing of death in certain circumstances of private defence, it ensures that the
person does not exceed this right. This right can only be availed when the danger or the
threat is imminent and the force applied must be proportionate to the danger. However, as
stated in Puran Singh v. State of Punjab2, there is no set of scales that determines whether the
accused has exceeded the right. It has to be determined from the facts and circumstances of
each case. The Lesson Plan begins with Chapter 1 that provides historical background of the
subject itself i.e., Indian Penal Code. The plan goes down with Chapter 2, a detailed
introduction of the right of private defence as one of the general exceptions, further, explore
and analyse the seven circumstances wherein this right of private defence can extent to the
causing death in case of body related offences along with the various case laws and its
judicial interpretation. Chapter 3 sheds light on the addition of the seventh clause dealing
with acid attack under Section 100 by the Justice Verma Committee through the Criminal
Law Amendment Act 2013 and evaluate its effectiveness. Moreover, it provides the four

1
The Indian Penal Code,1860, sec.99.
2
AIR 1975 SC 1674.

1
circumstances wherein the right of private defence can extent to the causing death in case of
property related offences. Finally, taking into consideration the above aspects, Chapter 4
sums up the research paper by providing a detailed conclusion.

2
Chapter 1.

HISTORICAL INTRODUCTION TO THE INDIAN PENAL CODE.

The Muslim Law with the necessary modifications continued to govern the people of India
for a considerable period of the East-India Company's administration. Its provisions were
superseded only in cases where the regulations and the Muslim prescribed distinct penalties
for the same offence. It was from the year 1832 that the people of Bengal, Bihar and Orissa
not professing Mahommaden faith were absolved, if they so desired, from the operation of
the Muslim criminal law. By 1827 almost all the penal law of the Bombay Presidency had
been included in the Regulations3. The penal law of the Madras Presidency also was, by this
time, Muslim law only in its name. An attempt at consolidation of the British Empire in
India, moreover, necessitated unity of administrative control and uniformity of the laws and
judicial systems in all the parts of British India. The Governor-General became the sole
authority for promulgating laws for all persons and courts of justice. The Governor-General's
Council had one member added who had no say in the executive Government and was
concerned along with others in legislative functions. Later on, a sort of Legislative Council
was established composed of members of the Supreme Council, one representative each from
the Local Governments and two judges of the Supreme Court of Calcutta. This legislature
enacted for a time all laws whether of provincial or all-India application. The Local
Governments either itself sent legislative proposals to the Centre or, after 1854, got them
introduced there through their representative sitting there. This state of things continued till
1861 when legislative power was restored to the Governments of Bombay and Madras. The
Bengal Legislative Council was also constituted on 17th January, 18624. The increasing
legislative powers of the different Provincial Governments from 1813 onwards were
responsible for the growth of a heterogeneous system of laws, both substantive and
procedural, as enacted by the Regulations of the different Provinces. The conflict of laws, the
pattern of which will be hereinafter seen, created difficulties in the administration of the
country as a whole. This led to the appointment of a 'Law' Member of the Council of the
Governor-General. The first Law Member, T.B. Macaulay, assumed the charge of his office
on 27th June, 1834. The statute of 1833 provided for the appointment of the Law Commission

3
Simran, “Right of Private Defence” LLJ 2349 (2015).
4
Ibid.

3
and from time to time Commissions to inquire fully into the state of laws in force and the
administration of justice in the British possessions in India and to make reports thereon.

The Indian Penal Code was drafted by the first Indian Law Commission constituted in 1834
by the Charter Act of 1833 under the chairmanship of Lord Macualay. Lord Mcloed,
Anderson and Millet were the commission members. As Macualay was already inspired by
the Jermy Benthem’s view of codification, it took 2 years to prepare the code and was
submitted to Governor General in Council in1837. However, this draft was not accepted by
the Governor General in Council giving the reason that it’s not exclusively drawn upon one
system of laws but from different systems like U.S.A., U.K., France etc. and this forced Lord
Macualay to resign5.

Again, in 1845 the second Law Commission was constituted it revised draft code and
presented in 1856.Almost after twenty years of editing and scrutiny, finally Council was
reluctant to pass the draft law. However, the mutiny of 1857, forced the Council to finally
pass it in 1860. Finally, on October 6, 1860 Indian Penal Code was passed. It became
operational from January 1, 18626.

5
Ayushi Aggarwal, “Right of Private Defence against the Body related offences” 3(4) IJLLJS 294-309.
6
Ibid.

4
Chapter 2

Sections 96 to 1067 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 wrongdoer 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.

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 hands8.

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

7
The Indian Penal Code, 1860.
8
Ratanlal and Dhirajlal, The Indian Penal Code 173 (34th ed. 2014).

5
person who is in imminent danger of person or property and only when no state helps 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.

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. 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 him. 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. No
state has so much resource to place a police officer with every individual. Thereby, the Indian Penal
Code recognizes an individual’s right to protect body and property of himself and any other person
against an impending threat when the state aid cannot be obtained and thus provides the right of
private defence to protect them under section 96-106 of Indian Penal Code (IPC). This right is
provided to ensure the safety of the citizens and a person is not responsible in law for his actions.
However, this right can only be exercised when the circumstances justifies it and not otherwise. There
has to be a reasonable apprehension of the threat although actual injury may or may not happen. Also,
this right is subject to restrictions given under Section 99 of the IPC.

In certain situations in cases of private defence of body, this right extends to causing death of the
person who poses such a danger and this is recognized by section 100 of the IPC. The right of Private
Defence of the body extends to causing of voluntary death of the assailant in seven circumstances that

6
have been enumerated below. However, this right can only be exercised and must be guided by
restrictions given under S.99 IPC. Also, the assault under the six circumstances is not simply an
assault but an aggravated form of assault. It means assault coupled with any other wrongful act. 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.

Private Defence in the Indian Legal System

Jeremy Bentham, an English Legal Luminary, once opined, “This right of defence 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. Take away this right and you
become, in so doing, the accomplice of all bad men.”9 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

9
Supra note 3 at 3.

7
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 9610 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 9711 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:
Firstly, 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.

Section 9912 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

10
The Indian Penal Code, 1860, s. 96.
11
The Indian Penal Code, 1860, s. 97.

8
of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in
good faith under colour 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. 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;
 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.

Section 10013 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:
 Firstly- 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:

12
The Indian Penal Code, 1860, s.99.
13
The Indian Penal Code,1860, s.100.

9
 1. The person exercising the right of private defence must be free from fault in bringing
about the encounter,
2. There must be an impending peril to life or of great bodily harm,
3. There must be no safe or reasonable mode of escape by retreat, and
4. There must have been a necessity for taking life.

Section 10114 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.

Section 10215 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.

Section 10316 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 wrongdoer, 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:
1. Robbery,
2. Housebreaking by night,

14
The Indian Penal Code, 1860, s. 101.
15
The Indian Penal Code, 1860, s. 102.
16
The Indian Penal Code, 1860, s.103.

10
 3. 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,
4. 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. 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.

Section 10417 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. 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.

17
The Indian Penal Code, 1860, s.104.

11
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.

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 housebreaking by night continues as long as
the house trespass which has been begun by such housebreaking 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.). 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.

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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. 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 13 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. 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. 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.

Judicial View on Private Defence

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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.” 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.
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 accuser’s
perception (purely subjective test).

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 defence. 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 defence 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 defence is thus designed to serve a social purpose and deserves to be
fostered within the prescribed limit.”

14
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 ten guidelines:

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 defence within certain reasonable limits.
2. The right of private defence is available only to one who is suddenly confronted with
the necessity of averting an impending danger and not of self creation.
3. A mere reasonable apprehension is enough to put the right of self defence into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defence. It is
enough if the accused apprehended that such an offence is contemplated and it is
likely to be committed if the right of private defence is not exercised
4. The right of private defence commences as soon as a reasonable apprehension arises
and it is coterminous with the duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate his defence step by step
with any arithmetical exactitude.
6. In private defence the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.
7. It is well settled that even if the accused does not plead self defence, it is open to
consider such a plea if the same arises from the material on record.
8. The accused need not prove the existence of the right of private defence beyond
reasonable doubt.
9. The Indian Penal Code confers the right of private defence only when the unlawful or
wrongful act is an offence.

15
 10. A person who is in imminent and reasonable danger of losing his life or limb may, in
exercise of self defence, inflict any harm (even extending to death) on his assailant
either when the assault is attempted or directly threatened.

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. 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

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

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.

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Mithu Pandey v. State
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

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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