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Published : May 09, 2010 | Author : sauravrmlnlu
Category : Criminal law | Total Views : 7994 | Rating :

saurav singh 2nd year Student of Dr. Ram Manohar Lohiya National Law University, Lucknow

Defences Against Culpable Homicide: An Analysis on Self defence

The right of self defense is absolutely necessary. The vigilance of magistrates can never make up for vigilance of each individual on his own behalf. The fear of law can never restrain bad men as the fear of the sum total of individual resistance. Take away this and you become, in so doing, the accomplice of all bad men.”[1]

The expression ‘self defence’, strictly speaking would imply only the defense of the person that is why the Code uses the expression ‘private defence’ which covers the defense of person as well as property. In Indian Penal Code the instead of self-defence the phrase “private- defence” is used. The law does not require a citizen, however, law- abiding he may be, to behave like a rank coward on any occasion. The right of self-defence as defined by law must be fostered in the citizens of every free country. The law of self defence of person and property in India is codified in ss96-106 of Indian Penal Code, and it is not permissible to interpret the provision of these selections on the basis of principles governing the right of self defence in common law of England. The provisions are complete in themselves and therefore the words used in sections must be looked to be for finding the extent and limits of the right. The provision of the said sections must be construed in the back ground that the right of private defence is basically preventive, and not punitive.[2] As the self defense serves social purposes, the same should be construed liberally.

The whole law of self defence rests on these propositions:
Ø That society undertakes, and in the great majority of cases, is able to protect private persons against unlawful attacks upon their person or property. (It is the basis of the entire law. No one would dream of applying the refinements of the penal Code to an unsettled country, where everyone carries his life in his hand.)

Ø That, where its aid cannot be obtained, it must be resorted to. (rests upon the assumed proposition)

Ø That where its aid cannot be obtained, the individual may do everything that is necessary to protect himself,

Ø But that the violence used must be in proportion to the injury to be averted and must not be employed for the gratification of vindictive or malicious feeling. It is evident that proposition.

Leading rules as to private defence
The right of private defence is one of defence and not retribution. It is difficult to expect a person exercising the right in good faith to weigh with golden scales what maximum amount of force is necessary to keep within the right and every reasonable allowance should be made for the bona fide defender if with the instinct of self-preservation strong upon him he pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack. It would be wholly unrealistic to expect a person under assault to modulate his defence step-by –step according to the attack.

The law undoubtedly authorizes a person under a reasonable apprehension that his life or that of another would be in danger or in risk of grievous hurt to inflict death upon assailant either when assault is attempted or directly threatened. Violence inflicted must not be greater than reasonably necessary for purposes of self-defence. It must be proportionate and commensurate with the quality and character of the act it is intended to meet, what is done in excess in not protected in law. In order to find out whether the right of private defence existed or not the entire incident should be examined with care and in its proper setting. The injuries received by the accused, the imminent threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered on a plea of private defence.[3]

The leading feature of the right of private defence are as follows:
Ø The right exists only when there is not time to have recourse to the protection of the public authorities.(s99, third)

Ø A. Every person possesses this right(s. 99, ‘third.)

B. It is exercisable against anyone, even though

(i) of unsound of mind or

(ii) immature years, etc (s 98)

(iii) Subject to certain exceptions in regard to public servants (s 99, ‘first’ and ‘second’.

Ø The extent of the right is the infliction of the harm necessary for the purpose of defence (s 99, ‘fourth’). This may amount to the voluntary causing of death (ss 100 and 103), or only some harm other than death ( ss 101 and 104).

Ø The subject matter of the right comprise the body if the person exercising the right or of anyone else, against any offence affecting the human body; and the property of the person exercising the right, or of anyone else, against theft, robbery, mischief or criminal trespass (s 97).

Ø The right commences as soon as a reasonable apprehension of danger arises (ss 102 and 105).

Ø The right ceases when the apprehension of danger ceases, or on completion of the offence ( ss 102 and 105).

There are obvious differences between the English Law and the Indian Law relating to ‘right of private defence’. A person has ordinarily no right of private defence of body (self- defence) under English law unless his own life or life of someone standing to close relationship with him, like husband- wife, guardian-ward, master- servant, is threatened. On the other hand, the first clause of s 97 of the Indian penal code provides that a person has right to self defence of body when his own life or that of any person in danger by reason of apprehension of danger to life arising upon a sudden quarrel in which case the person who claims to act in self-defence must treated as for as possible and attempt other means to avoid killing has assailant before he can be held to have had that right. The motive of self-preservation would dictate a define aggression on an innocent person. The right of self-defence arises out of the necessity for self preservation, still the later is wider and there can’t be right of self-defence in every case of necessity.

It may be interested to note in this connection that the law commissioners who, under the presidentship of Lord Macaulay prepared the original draft of Penal Code did not claim in their report relating to ss 96-106 that were bashing their draft upon principles of the common law of England relating to ‘right of self-defence’. Indeed they stated that they have drafted those provisions in the light of what was needed in the conditions prevailing in this (India) country.[4]

Section 96 does not define the right of defence but merely declares that nothing is an offence which is done in the exercise of right of the private defence.
So we can say that this right arises only against an act which would otherwise constitute an offence[5] and not against an act which is not an offence. Thus the infliction of the injuries by the deceased on the accused in exercise of right to self-defence is not an offence so as to entitle that latter to the right of self-defence under the sec. 96 of Indian Penal Code. It is enough if the accused apprehends that such an act of offence contemplated and likely to be committed if the right of self defence is not exercised. The Law does not confer a right of self-defence on a man who goes and seeks an attack which is likely to end of the death of the other. The right of self-defence conferred by the law or preserved by the law, for an individual is a very narrow and circumscribed right and can be taken advantages of only when circumstances fully justify the exercise of such right.

The first thing to remember is that the right of self defence can under no circumstances justify anything which is strictly is no defence but an offence but however it may sometimes happen that an attack is the most effective way of making defence in such cases attack is justifiable. One can’t take plea of self defence if he has himself courted the attack. Herel[6] argues that denying the self-defence would minimize the incidence of violence in the society by providing an incentive to individual to moderate their behavior. If individuals know that they will not be permitted to use self-defence force if they contribute in some way to the need to do so, then they will act more carefully, thus creating a society with a lower incidence of crime and violence.

Whether more harm has been inflicted than was necessary for the purposes of self-defence is purely a question of fact. Where the right is exceeded and injury caused is not justified, the person causing such injury is in the same position as if he had no 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-

Ø First.-- His own body, and the body of any other person, against any offence affecting the human body;

Ø 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.

In every civilized society the defence of person and the property of every member thereof is the responsibility of state. Consequently, there is a duty cast upon every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has right of self- defence.

By seeing section 97 we can say that this section, in the name of state responsibility upon the persons; provides right to self-defence which includes both the person who acted in self defence and the individual on whose behalf this self- defence was exercised even it can be exercised against the act of unsound mind sec 98 even against the innocent person in case of deadly assault if defender is situated in such circumstances that he can’t exercise off self-defence effectually without risk of harm to innocent person sec.106. Section 100, 101, 103and 104 must be read together which deals with the right of self-defence of body is concern. These are related to extent of injury that can be inflicted on an assailant in the exercise of right of self-defence. Wherever the right of self-defence exists it extends to the causing of any injury short of death necessary for the purposes of defence, but in certain special cases may extend to causing death and it is justified. A person claiming self-defense must prove at trial that the self-defense was justified. Generally a person may use reasonable force when it appears reasonably necessary to prevent an impending injury. A person using force in self-defense should use only so much force as is required to repel the attack. No deadly force can be used to repel either a non deadly attack or a deadly attack. Deadly force may be used to fend off an attacker who is using deadly force but may not be used to repel an attacker who is not using deadly force. Right of self-defence of body and property commences and continue as long as the dangers are not lost.

Jai Dev v. State of Punjab[7]
The Supreme Court held that the right of private defence against an assault causing apprehension of death or grievous hurt comes to an end as soon as the threat of assault has ceased and the apprehension of the danger has been entirely removed. If the accused fire rifle shots at the assaulters when all of them have run away, and shoot down persons standing at a long distance away, they cannot claim the right of private defence and are guilty of murder.

Biran Singh v. State of Bihar[8]
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 acts bore a stamp design. The right of private defence could not be availed by the accused.

These special cases where causing death in the exercise of self-defence is justifiable are:
Ø Assult which reasonably cause apprehension of death or grievous hurt or of rape or unnatural offence, kidnapping or abduction or wrongful confinement in such circumstances where which may reasonably causes him to apprehend that he will be unable to have resources to the public authority for his release.

Ø Robbery, house breaking by night, mischief by fire to any building, tent or vessel used for the purpose of the dwelling or custody of the property, Theft , mischief or house trespass under such circumstances as may cause the apprehension that the death or grievous hurt will be the consequence.

Bhaja Pradhan v. State of Orissa.[9]
The deceased had stolen a goat from the cattle shed of the accused. The accused charged him to recover his property and, in the process of recovering it, assaulted him without knowing that he had struck the vital body parts. Held, the accused exceeded the right of private defense.

We see that section 97 is provided in the name of state responsibility so this can’t be exercised against the State Authority or against a person who is legally entitle to act something. Section 97 of the Code provides that every person has a right, subject to the restrictions contained in Section 99. Section 99 elaborates such act against which there is no right of self –defence.

Ø 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.

Ø There is no right of private defense 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.

Ø There is no right of private defense in cases in which there is time to have recourse to protection of the public authorities.

Ø Extent to which the right may be exercised. Extent to which the right may be exercised.-- The right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense.

State of U.P v. Zalim and others,[10]
The right of private defense was not available to the accused that used knife and killed another person to repel the attack by that person with a shoe in his hand. It was held that the action of the accused could not fall within the periphery of right of private defense and assuming that they have a right of private defense, they had exceeded the same right.

First clause protects a public servant against the right of self-defense even if the authority be defective in minor particulars or even if the officer exceeds his authority in a minor particular, and it merely leaves the right of self-defense open when the alleged authority is no authority at all and is wholly defective in form or the officer goes clearly and widely outside the duties imposed upon him. Second clause does not necessary implies that the act should be done by the public servant but doer must act under the direction of public servant and a person can resist a public servant if the doer’s conduct is altogether illegal.

‘Not strictly justifiable by law’ are not intended to cure the want of jurisdiction but only an erroneous exercise of it. It does not extend to cases where there is a complete want of jurisdiction. The protection afforded under it to public servant is not lost to them by reason of any mistake on their part in exercise of their proper functions. The section thus apply to cases where there is an excess of jurisdiction as distinct from a complete absence of jurisdiction, to cases where the officials has done wrongly what they might have done rightly, but not to cases where the act could not possibly have been done rightly.

So our contention is that a person should be not deprived of self-defense against a public servant or a person who is acting under the directions of public servant, unless such person knows that the person against whom he is exercising the right is a public servant or acting under the direction of the public servant.

A variation on this general theme suggests that the criminal law is primarily concerned with punishing. Defendants who manifest a defect of motivation and that we should excuse those who violate the law in cases where no defect of motivation exists.[11] Like the claim about character, the suggestion about motive is that we cannot draw any negative conclusions about the motives of a person whose reason for violating the law is that he fears for his life or for the life of a loved one.
[1] Bentham’s Principles of Penal Laws
[2] Jai dev v state of Punjab AIR 1963 SC612
[4] Re Ramaswamy Ayyer 22 Cr. LJ 412, 44 ILR Mad. 913.
[5] State of Mysore V Raju Shetty AIR 1961 Mys. 74, 81:
[6] A Herel, ‘Efficiency and Fairness In Criminal Law : the case for criminal law principles of comparative fault’ (1994) 82 California Law Review 1181 -229, at 1185
[7] AIR 1963 SC 340.
[8] 1975SCC (Cr) 454: AIR 1975 SC 87.
[9] 1976CrLJ 1347.
[10] 1996 CrLJ 2537
[11] See Richard B. Brandt, A Motivational Theory of Excuses in the Criminal Law, in Nomos XXVII: Criminal Justice 165 (J. Roland Pennock & John W. Chapman eds., 1985), rpt. in Richard B. Brandt, Morality, Utilitarianism, and Rights (1992).

Authors contact info - articles The  author can be reached at: sauravrmlnlu@legalserviceindia.com

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Posted by nkn on March 19, 2011
plz HELP i can find an answer to this

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