The right of private is enshrined in Sections 96 to 106 of the Indian Penal Code. According to Section 96 nothing is an offence which is done in the exercise of the right of private defence and under Section 97 subject to the restrictions contained in Section 99 every person has a right to defend (1) his own body and the body of any other person against any offence affecting the human body, and (2) 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 these offences.
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The right of private defence, according to Section 99′ does not extend to an act which does not reasonably cause the apprehension of death or of a grievous hurt if done or attempted to be done by a public servant acting in good faith, etc.; and there is also no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Nor does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence.
Section 100 lays down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant. They are:
(1) If the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof;
(2) If such assault is inspired by an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release. In case of less serious offences this right extends to causing any harm other than death.
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The right of private defence of the body commences as soon as 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.
The right of private defence of property under Section 103 extends, subject to Section 99, to the voluntary causing of death or of any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery, house-breaking by night, mischief by fire on any building, etc., or if such offence is theft, mischief or house trespass in such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if the right of private defence is not exercised.
This right commences when reasonable apprehension of danger to the property commences and its duration, as prescribed in Section 105, in case of defence against criminal trespass or mischief, continues as long as the offender continues in the commission of such offence. Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons. Gotipulla Venkata Sive Subranam & Ors. v. State of Andhra Pradesh & Anr., (1970)3 S.C.R. 423).
Right of private Defence:
The right of private defence of person and property is recognized in all free, civilized democratic societies within certain limits. Those limits are dictated by two considerations:
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(1) That the same right is claimed by all other members of the society; and
(2) That it is the State which generally undertakes the responsibility for the maintenance of law and order.
Subject to certain limitations, therefore, the law gives a right to every person to defend his body or property, or the body or property of another person against unlawful aggression. He may protect his right by own force or prevent it from being violated.
It is a right inherent in a man, but the kind the amount of force is minutely regulated by law. This use of force to protect one’s property and person is called right of private defence. The right of private defence serves a social purpose as there is nothing more degrading to the human spirit than to run away in face of peril. But this right is basically preventive and not punitive.
An accused person can, without calling defence evidence in support of the plea of self-defence, rely on the evidence led by the prosecution and the material on the record for showing that he had acted in self-defence.
In such cases the real question which the Court is called upon to decide is whether on proper appraisal of the evidence and the relevant material on the record it can be said that the accused has been proved to be guilty beyond reasonable doubt, for the Court cannot justifiably ignore the material which establishes the right of self-defence merely because the accused has for some reason or the other omitted to take such plea. [Rajnikant v. State of Maharashtra, II S.C.J. 396].
Right of private Defence of Body:
Section 97 lays down that every person has a right, subject to the restrictions contained in Section 99, to defend his own body, and the body of any other person, against any offence affecting the human body, Section 102 of the Code provides 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.
It is clear from the wording of the section that the right commences and continues as long as danger to body lasts. The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and consequent thereon an apprehension of danger, but it should not be a mere idle threat. There must be reasonable ground for the apprehension.
The right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant if the offence occasioning the exercise of the right be of any of the following descriptions, viz., (i) an assault causing reasonable apprehension of death even injury to innocent persons in the right of private defence against an assault is excusable; (iii) assault with the intention of committing rape, gratifying unnatural lust, kidnapping or abducting or wrongfully confining a person causing reasonable apprehension that he will not be able to have recourse to the public authorities for his release.
For the purpose of exercising the right of private defence physical or mental incapacity of the person against whom the right is exercised is no bar.
There is, however, no right of private defence (i) against an act which does not reasonably cause the apprehension of death or:
Indian Penal Code:
grievous hurt, if done, or attempted to be done, by a public servant or 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; (ii) in cases in which there is time to have recourse to the protection of the public authorities; (iii) nor does the right of private defence extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. (S. 99).
The measure of defence must bear proportion to the quantum of force used by the attacker and which it is necessary to repel. Thus, where the accused who was attacked by another with a kirpan succeeded in disarming his opponent by taking away his weapon and showered blows after blows including the serious ones on the chest, it was held that he must be held to have exceeded the right of self- defence and was guilty under Section 304, Part I, I.P.C.
The right of private defence provided by Section 97, I.P.C., is a right of protection and not of vengeanee or aggression. An act done in exercise of a right of private defence does not give rise to any right of private defence in return. [Mukhtiar Singh v. State of Punjab, 1973 Cri. L.J. 132].
B has committed no offence for the reasons given above, namely X was killed in attempting to kidnap the ladies. B thus did not exceed the right of private defence.