Legal Provisions of Section 102 of Indian Penal Code, 1860.
Commencement and continuance of the right of private defence of the body:
ADVERTISEMENTS:
This section deals with two very important aspects of the right of private defence of body— at what point of time does the right commence and how long does it continue. Regarding the first aspect the section says that the right commences at that point of time when a reasonable apprehension of danger to the body arises either from an attempt to commit an offence on the body or from a threat to commit such offence even though in either of these cases the offence itself may not have been committed.
As of the second aspect the right continues till such apprehension of danger to the body continues. This law does not command that to exercise such a right one must wait up to the time when the first blow on the body falls. The right gets vested as soon as a reasonable apprehensions of danger to the body arises either by an attempt or a threat of an offence relating to body though the offence may not have been committed.
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Since it is a right of defence, it is available for protecting an apprehended unlawful attack and not for punishing an aggressor. Since the apprehension has to be real and not imaginary an offence must have been attempted or threatened. The threat must give rise to a present and imminent, and not remote or distant, danger. The right does not extent to a case where blows are inflicted even after the apprehension has ended.
Where an accused continues to attack for more time than necessary and the injuries inflicted are not in proportion to the injuries sustained, the Court would hesitate to grant the right. Similarly, where the imminence of danger has long ended and the attackers have run away but the accused fires shots resulting in loss of life of persons standing at a long distance away from the place of the happening, it cannot be held that he was acting under right of private defence.
ADVERTISEMENTS:
Divergent views have been held by Courts where a weapon has been snatched away by the accused from the hands of the deceased and has subsequently been used to attack him. The Orissa High Court is of the view that where the accused being attacked by the deceased by the ‘tangia’ snatched it from him and gave a blow by it on the deceased who fell down on the ground injured and there was no more apprehension of an attack from him, the subsequent continuance of the attack on him by the accused in exceeding the right of private defence.
But the Madras High Court has held that where a drunken person who was pelting stones on the person and the house of the accused and then attacked him by a knife which was snatched away from him by the accused who inflicted injury by it on him as a result of which he died, was acting under his right of private defence because the apprehension of death or grievous hurt in the mind of the accused continued to exist at the time he inflicted the blows on the deceased.
The difference in the viewpoints is not of law but is the interpretation on the basis of evidence to know as to what in reality are the facts of a case. While in the former the Court ruled that there was no more apprehension of an assault in the mind of the accused after the weapon had been snatched away from the deceased, in the latter case the Court felt that even after the snatching of the weapon the accused did have such a reasonable apprehension.