Sections 76 and 79 of the Code incorporate the common law principle of ignorantia facit doth excusat, ignorantia juris non excusat meaning thereby, ignorance of fact can be excused, ignorance of law can not be. The justification for exemption on the ground of mistake of fact and ignorance of fact is based on the principle that a man who is mistaken or ignorant about the existence of a fact cannot form the necessary intention to constitute a crime and is, therefore, not responsible in law for his deeds.
Section 76 reads as under:
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.
Section 76, I.P.C. deals with two classes of cases wherein a person is excused from criminal liability on the ground of mistake of fact, viz.,
(i) When a person is bound by law to do something and does it;
(ii) When a person believes in good faith, owing to a mistake of fact and not mistake of law, that he is bound to do something and does it.
However, here 'mistake' should not be confused with ignorance as such; it is a species of ignorance. It can be called as 'temporary ignorance'. Thus, ignorance includes mistake, but mistake does not necessarily include ignorance.
'Mistake of fact' must be distinguished from 'mistake of law' because while the former is excusable, the latter is not. 'Mistake of fact' can take the following two forms:
(i) mistake as to true identities;
(ii) mistake in sensory perceptions such as temporary distortion of imagination.
E.g., a Police Officer who carries warrant for the arrest of 'A', finds 'B' whom he honestly believes to be 'A' and arrests him. He is not guilty of an offence of arresting a wrong person.
In R. v. Prince, (1683) 2 Ch C 154 the following rules are laid down to determine the question of justification of an offence either due to mistake of fact or of law:
(i) When an act is in itself plainly criminal, but more severely punishable if certain circumstances exist, then ignorance of those circumstances is no answer to a charge for the aggravated offence.
(ii) If, however, an act is prima facie innocent, but in an offence if certain circumstances exist, then ignorance of those circumstances is a good defence to the charge.
(iii) If the act itself is wrong, and becomes criminal under certain circumstances, the person who commits such a wrongful act cannot argue that he was ignorant of the facts which turned the wrong into crime.
(iv) The state of the defendant's mind must amount to absolute ignorance of the existence of the circumstances which alter the character of the act, or to a belief in its non-existence.
'Mistake of law' does not mean ignorance of law which is no excuse. No court of law will ever accept the plea that the accused did not know the law. If these pleas shall be permitted by the Courts of law then administration of justice would become impossible. In State of Maharashtra v. Mayer Hans George, MANU/SC/0194/1964 : AIR 1965 SC 722 the Supreme Court refused to accept the plea of ignorance of the notification issued by the Reserve Bank of India imposing restrictions on the transit of gold to a place outside the territory of India and held the accused (a French National) liable for violating the said notification.
Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
Section 79, I.P.C. is complementary to section 76. This section exempts a man from criminal liability in those cases where by reason of a mistake (or ignorance) of fact in good faith, and not by reason of a mistake of law, a man considers himself justified by law to do an act in a particular way.1
Distinction between section 76 and section 79 should be kept in mind. While in the former, a person is assumed to be bound, in the latter he must have some justification in law. In other words, the distinction between the two sections is the distinction between a real or supposed legal obligation and a real or supposed legal justification in doing a particular act. However, under both sections, there must be a bona fide intention to advance the law manifested by circumstances attending the act which is the subject-matter of the charge. The party charged with the offence cannot simply allege that he had a good motive but he must
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1. See Law Commission of India Report (42nd Report, pp. 82-85).
allege and give a prima facie justification of good faith which actuated him to act the way he actually acted and that while doing so he had exerted the best of this judgment.
In Chirangi v. State, MANU/NA/0110/1952 : AIR 1952 Nag 282 the fact was, one Chirangi lobar lived in village Indar, with his 12-year son (Ghudsai), an unmarried daughter and a nephew. His son was attentive and considerate to his father. One day while Khotla, his nephew, was at work, the appellant took an axe and went with his son to a nearby hillock in order to gather bidi leaves. There he killed his only son with an axe and returned home. When Khotla returned from the fields Ghudsai was not there and Chirangi was asleep with a blood stained axe. On being questioned by his nephew, he told all the story to his nephew that he had killed his son and said that he had become insane. On the following morning the story was told to another person by himself.
Ghudsai's corpse was found on a hillock and Chirangi told that he had killed his son by mistake for a tiger, that two of his sons had died from insanity and he himself was insane.
He was convicted under section 302 for murder of his son.
Issue:
The question arose whether he was entitled to take benefit of mistake or not.
Contentions on behalf of appellant:
It was contended from the side of the appellant that he had become insane and under insanity he considered that he was attacking a tiger.
On behalf of the prosecution it was contended that there was nothing to show that the appellant was insane before or after the occurrence, there was also no allegation that his parents were also mentally affected.
Their Lordship observed that to get the benefit of mistake, the act should be done under insanity and in good faith. According to the medical report the abscess in his leg would have produced temperature which might have caused secondary delusion to magnify the image created by the defect in vision. He further added that Chirangi suffered from Cardio-vascular disorder which would have resulted in a temporary confusion in his mind and the injury on his eye brow could have caused a state of confusion during which he might have inflicted the injuries on his son without being conscious of his actions. The medical evidence showed clearly that Chirangi's existing physical ailments could have produced a state of mind in which he in good faith thought that the object of his attack was a tiger and not his son.
Decision:
It is abundantly clear from the fact that if Chirangi had for a single moment thought that the object of his attack was his son he would have desisted forthwith. In short, all what happened was that the appellant thought that his object was tiger and not his son. He thought that by reason of mistake of fact he was justified in destroying the deceased, whom he did not regard a human being but as, he thought, a dangerous animal.
The learned judge set aside the conviction and sentence and the appellant Chirangi was set at liberty.
Penal laws, which are founded on the principle of Mens Rea show much liberality and a softer attitude towards those persons who cannot think or cannot distinguish between right and wrong or do not understand the meaning or effect of any act which they might do. Penal laws are accordingly enacted in a manner so as to provide an immunity from criminal liability to such persons of unsound mind on the proposition that these persons are disposed of their 'will'. However, the immunity provided in the Penal Code is not so unlimited as to exempt all categories and classes of such persons. An elaborate and nearly fool proof definition or description of 'persons of unsound mind' has been provided in the Code. Section 84, I.P.C. provides immunity to the persons of unsound mind from any Criminal liability. This section reads:
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
According to the section quoted above, a person of unsound mind is the one who is:
(i) incapable of knowing the nature of the act; or
(ii) that he is doing what is either wrong or contrary to law.
It means that the alleged unsoundness of mind has to be judged in relation to the moment of time when the act is done. To decide which person belongs to unsound mind, courts of law have interpreted and explained to include the following kinds of persons:
(i) an idiot;
(ii) one made non compos mentis (i.e., not of sound mind) by illness;
(iii) a lunatic or a mad man;
(iv) one who is under intoxication.
In Ashiruddin Ahmed v. King, AIR 1949 Cal 182 it was held by the Calcutta High Court that to enable an accused to get benefit of section 84 he should be able to establish any one of the following three elements, viz.,
(i) that the nature of the act was not known to the accused, or
(ii) that the act was not known by him to be contrary to law, or
(iii) that the act was not known by him to be wrong.
In Dayabhai Chhagabhai Thakkar v. State of Gujarat, MANU/SC/0068/1964 : AIR 1964 SC 1563 the apex Court held that in determining whether the accused has established that his case comes within the purview of section 84, the court has to consider the circumstances which preceded, attended and followed the crime. The relevant facts are the motive for the crime, the previous history as to the mental condition of the accused, the state of his mind at the time of the offence, and the events immediately after the incident which throw a light on the state of mind.
In Sudhakaran v. State of Kerala, MANU/SC/0901/2010 : AIR 2011 SC 265, the Supreme Court held that where the appellant brutally committed murder of his wife but did not cause any hurt to the child. Rather he made up his mind to ensure that child be put into proper care and custody after murder. Appellant had been treated in a Psychiatric Hospital for 13 days in the year 1985. There was no evidence to indicate that the appellant suffered from mental illness post 1985. The appellant had failed to prove that he was suffering from such mental illness that would enable him to take benefit of section 84, IPC. The appellant convicted and sentenced to rigorous imprisonment for life by the High Court. In appeal by the accused the Supreme Court dismissed the appeal upholding the decision of the High Court.
Same held in Surendra Mishra v. State of Jharkhand, MANU/SC/0018/2011 : AIR 2011 SC 627, the Supreme Court held that where the appellant through a pistol shot-dead the deceased. He was not suffering from unsoundness of mind at the time of commission of the offence under section 302 IPC and therefore the Supreme Court dismissed the appeal upholding the decision of the High Court which convicted and sentenced to rigorous imprisonment for life.
Sections 85 and 86 of the Code have crystallised in tabloid form the law relating to intoxication or drunkenness as a defence or plea in mitigating the rigours of the law. However, the law does not protect all sorts of drunkenness; nor does it protect drunkenness as such. Drunkenness can be a habit as alcoholics generally are. Such persons are not protected.
Section 85, I.P.C. provides:
Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
This section lays down the test to determine when a person is said to have caused an act as a result of involuntary drunkenness so as to claim the benefit of exemption. Section 85 gives the same immunity to a person intoxicated involuntarily as section 84 gives to a person of 'unsound mind'. A man in order to claim exemption from criminal liability on the ground of involuntary drunkenness must establish that:
(i) he was incapable of knowing the nature of the act, or
(ii) that he was doing what was either wrong or contrary to law, and
(iii) that the thing which intoxicated him was given to him without his knowledge or against his will.
Section 86, I.P.C. says:
In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
Drunkenness was never an excuse for criminal misconduct and indeed the classic authorities broadly assert that voluntary drunkenness must be considered rather as an aggravation than a defence. Section 86, I.P.C. deals with that class of cases wherein a man enters into intoxication voluntarily. It imputes the same knowledge to such a man as he would had, had he not been intoxicated i.e., knowledge of a sober man with regard to the consequences of his acts. The Supreme Court in Basdev v. State of Pepsu, MANU/SC/0027/1956 : AIR 1956 SC 488 laid down the following guidelines:
(i) The absence of understanding of the nature and consequences of an act, whether produced by drunkenness or otherwise, is a defence to the crime charged;
(ii) The evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime, should be taken into consideration with other proved facts in order to determine whether or not he had this intent;
(iii) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was effected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
Section 86 says that a person voluntarily intoxicated will be deemed to have the same knowledge as he would have had if he had not been intoxicated. The section does not say that the accused shall be liable to be dealt with as if he had the same intention as might have been presumed if he had not been intoxicated. Therefore, there is no presumption, under section 86, with regard to intention. In such cases, his intention would have to be gathered from the facts and circumstances of every individual case, having due regard to the degree of intoxication.
In T.N. Lakshmaiah v. State of Karnataka, MANU/SC/0651/2001 : (2002) 1 SCC 219 the fact was, the accused took his wife and son to the extreme end to show them that Ganga Chukki falls at Shivanasamudra, a picnic spot. He led them downwards telling that he would show the beauty of the falls from a very near point. He is alleged to have pushed down his son from that place who fell on a rock which was 150 feet below. He also tied the saree of her wife around her neck and dragged her to a rock, notwithstanding her pleadings and protests.
The trial court concluded that the accused was guilty for the commission of the crime of murder of his wife and son.
The High Court dismissed the appeal filed by the accused.
The SC observed: "It is admitted that the appellant in this case, has not led any evidence in proof of the plea of insanity. There is nothing on the record to infer that the accused was of unsound mind at or about the time of occurrence. His behaviour at the time and subsequent to the commission of the crime clearly indicates that he knew and was capable of knowing the nature of the act done
by him. At no point of time, his behaviour is shown to be abnormal. We have found no record allegedly showing the appellant to be suffering from any mental disease when he is stated to have applied for bail. The plea raised, on the face of it, is an afterthought and bereft of any substance. We are satisfied that the appellant was sane and understood the implication of the act done by him and in no case was having unsound mind within the meaning of section 84 of the I.P.C., at the relevant time".
The SC further observed:
"We are not satisfied with the submission of the appellant that the prosecution had failed to prove the complete chain of circumstances connecting the accused with the commission of the crime. In its detailed judgment, the trial court has referred to prove circumstances which lead to the only inference of the involvement of the accused in the commission of the crime. Similarly, in its detailed judgment, has referred to relevant evidence and the incriminating circumstances. We do not find any ground to draw any other inference in the present case. There is no substance in this appeal which is accordingly dismissed".
In Shrikant Anandrao Bhosle v. State of Maharashtra, MANU/SC/0835/2002 : (2002) 7 SCC 748 the appellant, a police constable was married with Surekha in the year 1987. On the morning of 24-4-1994, there was a quarrel between husband and wife. While Surekha was washing the clothes in the bathroom, the appellant hit her with a grinding stone on her head which resulted in her death. The appellant was charged for the offence of the murder of his wife.
On production of the evidence, the appellant was found guilty by the sessions court which was affirmed by the judgment of the High Court.
Issue:
Was the commission of offence a result of extreme anger or unsoundness of mind?
Contention of the State:
It was contended by the learned counsel for the state that the prosecution evidence has established that the appellant by nature was an angry person and under a fit of extreme anger, he committed the murder of his wife as there was a fight between them that morning and there is nothing to show that at the relevant time the appellant was under an attack of paranoid schizophrenia.
Decision of the SC:
'The SC held: "In the present case, however, it is not only the aforesaid facts but it is the totality of circumstances seen in the light of the evidence on record to prove that the appellant was suffering from paranoid schizophrenia. The unsoundness of mind before and after the incident is a relevant fact. From the circumstance of the case clearly an inference can be reasonably drawn that the appellant was under a delusion at the relevant time. The anger theory on which reliance has been placed is not ruled out under schizophrenia attack. We are unable to hold that the crime was committed as a result of an extreme fit of anger. There is reasonable doubt that at the time of commission of the crime, the appellant was incapable of knowing the nature of the act by reason of unsoundness of mind and thus, he is entitled to the benefit of section 84, I.P.C. Hence, the conviction and sentence of the appellant cannot be sustained".
Sections 96 to 106 of the Code state the law relating to the right of private defence of person and property. These provisions 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.
The right of private defence provided by law to a citizen is, however, not punitive, but preventive notwithstanding the fact that punitive measures may thereby result. The protective measures or the preventive means which a citizen is permitted to employ in private defence must be related to the danger ahead.
The doctrine of 'right of private defence' is founded on the following expediencies:
(i) the society or the State has a duty, no doubt, to protect its citizens against all unlawful attacks and assaults upon their person or property, but it cannot come to a citizen's aid as speedily as a grave situation would normally demand;
(ii) that where aid of the State is available, it must be obtained; but 'availability' of such aid must be relative to the expediency or necessity of the given situation;
(iii) that a private citizen whose life is threatened by a grave danger need not wait for the State aid and should try to protect his life and property as best as he can by exercising the means he has at his own disposal.
(iv) that the right to private defence is protective or preventive and not punitive; therefore this right can be exercised only for protection and prevention and not for punishing the aggressor for that is the task of the State.
(v) that the right to private defence is always related to time and space. Thus only "when" and "where" the threat to life and property of persons becomes imminent can we exercise the said right and not otherwise. For example, a person is not entitled to go to the house of a person who beat his son or daughter in order to chastise him.
(vi) the violence used in the exercise of this right must be proportionate to the injury or threat to be averted and must not exceed such limits. This right to private defence cannot be availed of for the sake of self-gratification or for satisfying one's ego or to satisfy one's malicious or sadistic urges.
(vii) that the right must be exercised when there is real and immediate threat and there is a reasonable apprehension in the mind of a person of such immediate and real danger and not when the danger is remote and unreal.
(viii) The apprehension must be reasonable and not fanciful. And present and imminent danger (not remote or distant) should be present.
(ix) The right of private defence 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 such right continues so long as such apprehension of danger to the body continues. This right rests on the general principle that where crime is endeavoured to be committed by force, it is lawful to repeal that force in self-defence. To say that a person could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law.
(x) The right of defence ends with the necessity for it. Thus, the person exercising such right need not chase the fleeing attacker and then beat him. Similarly, a person is not entitled to go to the house of a person who beat his son in order to chastise him.
(xi) The law does not require that a person should not exercise his right to self-defence if by running away he can avoid injury from his assailant.
(xii) The law does not require that a person placed in such circumstances should weigh the arguments for and against and attack 'in golden scales'.
In Dominic Varkey v. State of Kerala, MANU/SC/0101/1971 : AIR 1971 SC 1208 the Supreme Court observed:
"Broadly stated, the right of private defence rests on three ideas: Firstly, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence; and thirdly, that the right does not commence until there is a reasonable apprehension". In short, right of self-defence is not available to a person who resorts to retaliation for past injury but to him who is suddenly confronted with the immediate necessity of averting an impending danger not of his creation."
However, the right of private defence' is not available in the following situations:
(i) The aggressors cannot claim this right when he himself create a danger to his own life.
(ii) There cannot be private defence against a private defence.
According to section 96, I.P.C:
Nothing is an offence which is done in the exercise of the right of private defence.
Section 96 is the general provision. It 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. 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; V. Subramani v. State of Tamil Nadu, MANU/SC/0179/2005 : AIR 2005 SC 1983.
Section 97, I.P.C. provides for right of private defence of the body and of property in the following words:
Every person has a right, subject to the restrictions contained in section 99, to defend--
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Firstly.-- |
His own body, and the body of any other person, against any offence affecting the human body; |
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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 or criminal trespass. |
This section 97 provides that subject to the restrictions contained in section 99, every man has a right to defend his own body and the body of any other person, against any offence affecting human body, and to defend his property and the property of any other person whether movable or immovable. Section 97 divides the right of private defence into two parts. The first part deals with defence of person and the second part deals with the defence of property.
To invoke the plea of right of private defence there must be an offence committed or attempted to be committed against the person himself exercising such a right, or any other person. The question of the accrual of the right of private defence, however, does not depend upon an injury being caused to the man in question. The right could be exercised if a reasonable apprehension of causing grievous injury can be established. If the threat to person or property of the person is real and immediate, he is not required to weigh in a golden scale the kind of instrument and the force which he exerts on the spur of the moment; Parichhat v. State of Madhya Pradesh, MANU/SC/0158/1971 : (1972) 4 SCC 694.
In Biran Singh v. State of Bihar, MANU/SC/0112/1974 : AIR 1975 SC 87 two of the accused, having received simple injuries, ran back to their house, fetched a sword and inflicted fatal blows on the head of the deceased with that sword. The court held that even assuming that the deceased had inflicted simple injuries on the accused, there could be no justification for any of the accused to hit the deceased with a sword on a vital part of the body such as the head. The severity of the injuries could not be said either to have been a matter of chance. The way the accused murdered the deceased was by no means a matter of chance. Their acts bore a stamp of design. The right of private defence, therefore, could not be availed by the accused.
Section 98, I.P.C. enlarges the right of private defence and permits it to exercise against person of unsound mind etc. Section 98 reads:
When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
Under this section the right of private defence is made available for protection of one person or the body of any other person and of movable or immovable property of self or any other person from any harm or danger from any person whose act would not be an offence by reason of various conceptions provided in the Penal Code. For example the act of a child, under seven years of age (section 82); the act of a child above seven and under twelve years. If he is of immature understanding (section 83); the act of a person of unsound mind (section 84); the act of a person incapable of judgment by reason of intoxication caused against his will (sections 85, 86) or act done under mistake of fact (section 79). The persons mentioned in these sections do not come within the purview of law if they commit any offence, and therefore the right to private defence has also been given to a citizen to protect his body or that of any other person and immovable or movable property of himself or any other person from any harm which may be imminent from such persons as are exonerated by law if they commit any offence.
Section 99, I.P.C. lays down the conditions and limits within which the right of private defence can be exercised. Section 99 provides:
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 colour of his office, though that act, may not be strictly justifiable by law.
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 the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.--
A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2.--
A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
This section gives a defensive right to a man and not an offensive right. 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 authority.
The right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence1.
Good faith plays a vital role under this section. Good faith does not require logical infallibility but due care and caution2. In Kesho Ram v. Delhi Administration, 1974 Cr LJ 814 (SC) the Supreme Court held that an immunity " under section 99 cannot be claimed by a public servant, if he acts in good faith and under the colour of his offence, even though legality of the act could not otherwise be sustained.
No man has a right to take the law into his own hands. Clause 3 to this section lays down that, there is no right of private defence, if there is reasonable opportunity of redress by recourse to the public authority.
Clause 4 to section 99 provides that the injury to be inflicted should be proportionate to the harm caused or attempted to be caused.
In Bhaja Pradhan v. State of Orissa, 1976 Cr LJ 1347 the deceased had stolen a goat from the cattleshed of the accused. The aceused charged him to recover his property and, in the process of recovering it, asseulted him without knowing that he had struck vital body parts. Held, the accused exceeded the right of private defence. Similarly in Baljit Singh v. State of Uttar Pradesh, MANU/SC/0093/1976 : AIR 1976 SC 2273 the Supreme Court held that the actual possession of the disputed land did permit the accused the right to defend the property from being dispossessed. But had the right exercised resulted in fatal injuries to the aggressors, the accused would have exceeded the limit of the lawful exercise of that right.
The extreme limit of the right of private defence has been provided under section 100, I.P.C. It mentions the situations when the right of private defence of body extends to causing death. Section 100 reads:
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:--
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1. Second part to section 99, IPC.
2. See section 52, IPC
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Firstly.-- |
Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; |
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Secondly.-- |
Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; |
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Thirdly-- |
An assault with the intention of committing rape; |
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Fourthly.-- |
An assault with the intention of gratifying unnatural lust; |
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Fifthly-- |
An assault with the intention of kidnapping or abducting; |
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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 section 100, I.P.C. following four conditions must exist:
Firstly, that the person exercising the right of private defence must be free from fault in bringing about the encounter;
Secondly, there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create an honest belief of exceeding (great) necessity;
Thirdly, there must be no safe or reasonable mode of escape by retreat; and
Fourthly, there must have been a necessity for taking the life.
In Somnath Das v. State, MANU/OR/0046/1969 : AIR 1969 Ori 138 the accused and the deceased were cousins who did not pull on well. A free fight took place between them and subsequently the accused was charged with the murder of the deceased. It was held from the facts as ascertained by the court that the deceased had done nothing as to cause a reasonable apprehension in the mind of the accused that he was threatened either with death or grievous hurt. He had merely picked up a lathi thrown at him by the son of the accused, whereupon the accused felled him with fatal blows. There was, therefore, no reasonable apprehension in the mind of the accused that either death or grievous hurt would befall (happen) upon him, had he not exercised his right of private defence.
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.
Under this section any harm short of death can be successfully inflicted in exercise of right of private defence subject to the restrictions mentioned in section 99 of the Code; Yogendra Morarji v. State of Gujarat, MANU/SC/0291/1979 : AIR 1980 SC 660.
Sections 102 to 105, I.P.C. fix the time when the right of private defence commences and the time duration for which it continues.
Section 102, I.P.C. which provides for the commencement and continuance of the right of private defence, says that:
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.
In Deo Narain v. State of Uttar Pradesh, 1973 Cr LJ 677 (SC), the Supreme Court held that the right of private defence is a 'preventive and not a punitive right'. If after sustaining serious injuries there is no apprehension of further danger to the body, obviously the right of private defence would not be available. But that is to say the appellant could only claim the right to use force after he had sustained assault is a complete misunderstanding of the law embodied in section 102, I.P.C.
Sections 103, 104 and 105, I.P.C. provide provisions for right to private defence for the protection of one's property as also of another's property.
Section 103 says:
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:--
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Firstly.-- |
Robbery; |
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Secondly.-- |
House-breaking by night; |
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Thirdly-- |
Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; |
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Fourthly.-- |
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. |
Under section 103 the right of private defence of property extends, subject to the restrictions mentioned in section 99, to voluntarily causing death when such theft or mischief is committed in such circumstances as may reasonably cause an apprehension that death or grievous hurt will result, if such right of private defence is not exercised; Gurdatta Mal v. State of Uttar Pradesh, MANU/SC/0332/1964 : AIR 1965 SC 257.
Section 104, I.P.C. restricts the right of private defence of property, as section 101 puts a check on the right to private defence of the body, to causing any harm short of death in the existence of the right of private defence. Section 104 says:
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 wrong-doer of any harm other than death.
In Natham v. State of Madras, 1973 Cr LJ 608 the Supreme Court held that since it did not appear that the harvesting party was armed with any deadly weapon and there could not have been any fear of death or grievous hurt on the part of the appellant and his party, under section 104, I.P.C. their right was limited to the causing of any harm other than death.
Section 105, I.P.C. fixes the time when the right of private defence of property commences and when it comes to an end. This section reads:
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 effected 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 or 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.
According to the section, the right of defence of property commences when a reasonable apprehension of danger to the property commences. The continuance depends upon the nature of the offence.
In Amjad Khan v. State, MANU/SC/0032/1952 : AIR 1952 SC 165 the Supreme Court held that under sections 102 and 105, I.P.C. the right of private defence commences as soon as a reasonable apprehension of danger to the human body or the property of oneself or another person commences to arise from an attempt or threat to commit an offence, even though the offence may not be committed.
Section 106, I.P.C. deals with a case of extreme necessity, in which a person is authorized by law to run the risk of harming even innocent persons in order to protect himself from mortal injury. Section 106 says:
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 of private defence extends to the running of that risk.
Thus, where a person is attacked by a mob which attempt to murder him and he cannot open fire on the mob because they are mixed with some other innocent persons who have nothing to do with the attack on him, then the person is fully entitled to run the risk of causing harm to innocent persons also in the exercise of his right of private defence against an assault.
In State of Haryana v. Sher Singh, MANU/SC/0773/2002 : (2002) 9 SCC 356 the accused armed with weapons viz. bhalas, jelis, gandasis and lathis come to the land to take forcible possession and cattle brought by them were let loose in the fields resulting in damage of the standing crop. Then, the deceased and four others, reached the spot. When the deceased questioned their high handed acts, they started inflicting injuries as a result of which he died.
Decision; The trial court held that there was no justification to cause the death of Bhim Singh in the alleged exercise of the right of private defence because the accused could not have had reasonable apprehension of death or grievous hurt. The High Court observed that the accused were within their rights to inflict injuries on the complaint partly short of causing death in exercise of the right of private defence of property.
The Supreme Court observed "A conspectus of the facts lead to the inevitable conclusion that the accused clearly exceeded his right of private defence and caused much more harm then necessary. He cannot, therefore, claim immunity under the garb of section 97 of the I.P.C. The right of private defence under section 97, I.P.C. is expressly subject to the restriction contained in section 99." Therefore, it was held that, we are of the view that Sher Singh, is liable to be punished under section 326 read with section 322, I.P.C. Accordingly, he is convicted under section 326, I.P.C. and sentenced to undergo R.I. for a period of five years.
In Moti Singh v. State of Maharashtra, MANU/SC/0407/2002 : (2002) 9 SCC 494 wherein a situation which pitched up to brim of a communal riot, one person died of a stab injury on the chest. It appeared that he was the only person who sustained fatal injury in the occurrence.
Issue:
Can the appellant legitimately claim the right of private defence in the above situation?
Decision of the SC:
The SC held that section 102 of the I.P.C. says that 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 even a threat to cause any offence though the offence may not been committed and the right continues as long as such apprehension of danger to the body continues. Section 100 of the I.P.C. confers the right of private defence of the body up 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 the acts as may responsibly cause the apprehension that grievous hurt be the consequence of such assault. The crucial factor is not what the accused pleaded, but whether the accused had the cause to reasonably apprehend such a danger. A different plea adopted by the accused would not foreclose the judicial consideration on the existence of such a situation.
The court further held:
"In our considered opinion the appellant, even if the prosecution version that it was he who inflicted the fatal stab on the deceased is to be accepted as correct, it ended in the exercise of right of private defence. As the reasonable apprehension that the grievous hurt would have been inflicted on one of the accused cannot be ruled out on the broad probabilities delineated by the prosecution to the evidence, we are disposed to extend the said right to this appellant. Resultantly, conviction and sentence passed on him cannot be sustained".
In Subramani v. State of Tamil Nadu, MANU/SC/0709/2002 : (2002) 7 SCC 210 the appellant had a litigating tenant to the aforesaid and was obstructing delivery of possession of the land to the deceased who had purchased this land. When deceased tried to plough the land, then accused assaulted the deceased with their weapons which resulted in his death.
Decision:
The Supreme Court referred to the case of State of Bihar v. Mathu Pandey, (1970) 1 SCR 358 and held: "It is well-settled that once it is held that the accused had the right of private defence and reasonably apprehended that death or grievous hurt would be the consequence if the right of private defence was not exercised. The right of private defence of property extended under section 103, I.P.C. to voluntarily causing the death of the aggressor subject to restrictions mentioned in section 99, I.P.C. In this case, if the appellants acted in exercise of their right of private defence of property, it can not be said that they committed a criminal act in furtherance of a common intention, because section 96, I.P.C. makes it absolutely clear that nothing is an offence which is done in the exercise of the right of private defence. They did not intend to commit any criminal act or to do anything which may be described as unlawful. Their object was not to kill the deceased but to protect their property."
The court further held:
"Once it is held that the appellants did not exceed their right of private defence, it must logically follow that they cannot be convicted of the lesser offences under sections 324 and 326, I.P.C., because in the same perspection and in the exercise of their right of private defence. They had caused injuries to some to the prosecution witnesses".
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