PRIVATE DEFENSE- A GENERAL EXCEPTION

GENERAL EXCEPTIONS

“THESE ARE THE DEFENSES WHICH ARE EXEMPTED IN THE PENAL CODE WRITTEN IN THE CHAPTER 4 OF INDIAN PENAL CODE FROM SECTION 76-106”

PRIVATE DEFENSE

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

SECTION 96(CRIMINAL IMMUNITY)

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.

Kamparsare v. Putappa:
Where a boy in a street was raising a cloud of dust and a passer-by therefore chased the boy and beat him, it was held that the passer-by committed no offence. His act was one in exercise of the right of private defence.

SECTION 97

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.

Chotelal v. State:
X was constructing a structure on a land subject to dispute between Y and X. Y was trying to demolish the same. X therefore assaulted Y with a lathi. It was held that Y was responsible for the crime of waste and X had therefore a right to defend his property.

SECTION 98:-

Right of private defence against the act of a person of unsound mind, etc.- 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.

Example- (i) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. (iii) A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a house breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

SECTION 99:-

Section 99 lays down that the conditions and limits within which the right of private defence can be exercised. The section gives a defensive right to a man and not an offensive right.

Emperor v. Mammun:
The accused, five in number, went out on a moonlit night armed with clubs, and assaulted a man who was cutting rice in their field. The man received six distinct fractures of the skullbones besides other wounds and died on the spot. The accused on being charged with murder pleaded right of private defence of their property. Held under Section 99 there is no
right of private defence in cases where there is time to have recourse to the protection of the public authorities.

SECTION 100:-

When the right of private defence of the body extends to causing death

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

SECTION 101:-

When such right extends to causing any harm other than death

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

SECTION 102:-

Commencement and continuance of the right of private defence of the body.

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 103:-

When the right of private defence of property extends to causing death.

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.

SECTION 104:-

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 wrong -doer of any harm other than death.

SECTION 105:-

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 effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

SECTION 106:-

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.

Example- A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

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