Private defence is not available for retaliation but for averting the danger.......Under what circumstances ...extent of killing in defence....

Question: 'Private defence is not available for retaliation but for averting the danger which is not created by himself'. Under what circumstances a person can go to the extent of killing in defence of his person? Answer with the help of decided cases.

Find the answer to the mains question of IPC only on Legal Bites. ['Private defence is not available for retaliation but for averting the danger which is not created by himself'. Under what circumstances a person can go to the extent of killing in defence of his person? Answer with the help of decided cases.]

Answer

The doctrine of the right to private defence is founded on the very same instinct of self-preservation that has been duly enshrined in criminal law. The provisions that deal with the right of private defence have been enumerated in Sections 96 to 106 of the IPC and fall under Chapter IV which deals with General Exceptions.

Section 96 of IPC states that nothing is an offence which is done in the exercise of the right of private defence. Whether a person has legitimately acted in the exercise of the right of defence given a particular set of facts and circumstances, would depend on the facts of each case. To arrive at any conclusion, the Court would be required to examine all the surrounding circumstances.

Section 100 of IPC throws light on the circumstances in which the right of private defence of the body can be stretched to the extent of voluntarily causing death. To claim such a right, the accused must be able to demonstrate that the circumstances were such that there existed a reasonable ground to apprehend that he would suffer grievous hurt that would even cause death. The necessity of averting an impending danger is the core criterion for exercising such a right.

Both Sections 100 and 101 of IPC define the circumstances in which the right of private defence of the body extends to causing death or causing any harm other than death. Provisions of Sections 102 and 105 of IPC stipulate the stage of commencement and continuance of the right of private defence of the body and property respectively and state that the said right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though such an offence may not have been committed. The provisions state that it continues as long as such an apprehension or danger to the body continues.

In the case of State of M.P. v. Ramesh, (2005) 9 SCC 705, the Hon’ble Court has made the following relevant observations:

“11. …………A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting…….. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.”

In another case of Dharam and Others v. State of Haryana, (2007) 15 SCC 241, the Hon’ble Court had the occasion to examine the scope of the right of private defence and had made the following pertinent observations:

“18. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.

We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.”

Important Mains Questions Series for Judiciary, APO & University Exams