CHAPTER III

RIGHT OF PRIVATE DEFENCE OF BODY IN INDIA

3.1 INTRODUCTION

A mere reasonable apprehension is enough to put the right of self-defence into

operation and it is not necessary that there should be an actual commission of the
offence in order to give rise to the right of private defence. It is enough if the
appellant apprehended that such an offence is contemplated and is likely to be
committed if the right of private defence is not exercised.126 Right of Self- Defence
would arise where danger to person or property is imminent and would remain
available as long as such danger exists. Right of Self- Defence can be used as a shield
to ward off an unwarranted attack to person or property but it cannot be used as a
vehicle for provoking the attack, meaning thereby that it is to be exercised as
preventive measure and not for launching attack. When specific plea of self-defense is
raised, the onus to prove the same lay upon the party claiming the same. Such right
would extend only when a clear danger to person or property become imminent, and
the moment he exceeds such right then that act become the act of aggression.
According to codified law a person right under this heading continues unless the
threat or apprehension of being in danger continuous. Self- Defence or Private
Defence is a Countermeasure that involves defending oneself, one's Property, or the
well-being of another from Harm. The use of the Right of self-defense as a legal
justification for the use of Force in times of danger is available in many Jurisdictions,
but the interpretation varies widely. Such right was granted by almost all nations of
the worlds in same way as embodied in Indian Penal Code, 1860 to protect and
promoted equality and justice in the society, with consideration to strengthen the
wellbeing of the people to apply rational mind in difficult situation to protect their life
and property form assault of the transgressor subject to some restriction that the law
imposes.

126
Suresh Singhal v. State (Delhi Administration), (SC) 2017(2) SCC 737

55
 It is not necessary for the accused to plead in so many words that he acted in
self-defence. If the circumstances show that the right of private defence was
legitimately exercised, it is open to the court to consider such a plea.127
To claim 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 law
of private defence does not require that the person assaulted or facing apprehension of
an assault must run away for safety. It entitles him to defend himself and law gives
him right of private defence. There is no right of private defence where there is no
apprehension of danger. Necessity of averting and impending danger must be present,
real or apparent.128
3.2 THINGS DONE IN PRIVATE DEFENCE

3.2.1 INTRODUCTION

Subject to certain limitations 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 his own force or prevent it from being
violated. It is a right inherent in a man. But the kind and amount of force is minutely
regulated by law. The use of force to protect one’s property and person is called right
of Private Defence. The right of Private Defence cannot be exercised to cause harm to
another as revenge. In other words, the right of Private Defence can be used as a
shield and not a sword. The law recognizes a number of situations in which the use of
force is justified or otherwise in the exercise of Private Defence. Indeed, in several
cases even deadly force is allowed to be used provided the defendant reasonably
believes that he was placed in the imminence of danger for death or grievous bodily
injury. Under such circumstances the killing of the assailant became necessary to save
person or property. In other word, the use of deadly force could only be justified in a
situation in which the attacked reasonably apprehends grave danger to person or
property. Broadly speaking the aggressor is the creator of a situation in which the

127
Madhu Gupta & others v. State of NCT of Delhi,(Del. H.C.), CRL.A. 357 and 514 of 2017
128
Raj Singh v. State of Haryana (SC) 2015 AIR (SCW) 2941

56
assailed has no other alternative except to resort to force to ward off the danger in
order to protect person or property.

The Section 96, I.P.C. does not define the expression 'right of private defence'.
It merely indicates that nothing is an offence which is done in the exercise of such
right. Whether in a particular set of circumstances, a person acted in the exercise of
the right of private defence is a question of fact to be determined on the facts and
circumstances of each case. No test in the abstract for determining such a question can
be laid down. In determining this question of fact, the Court must consider all the
surrounding circumstances. It is not necessary for the accused to plead in so many
words that he acted in self-defence. If the circumstances show that the right of private
defence was legitimately exercised, it is open to the Court to consider such a plea. In a
given case the Court can consider it even if the accused has not taken it, if the same is
available to be considered from the material on record. Under Section 105 of the
Indian Evidence Act, 1872, the burden of proof is on the accused, which sets of the
plea of self-defence, and, in the absence of proof, it is not possible for the Court to
presume the truth of the plea of self-defence. The Court shall presume the absence of
such circumstances. It is for the accused to place necessary material on record either
by him adducing positive evidence or by eliciting necessary facts from the witnesses
examined for the prosecution. An accused taking the plea of the right of private
defence is not required to call evidence; he can establish his plea by reference to
circumstances transpiring from the prosecution evidence itself. The question in such a
case would be a question of assessing the true effect of the prosecution evidence, and
not a question of the accused discharging any burden. Where the right of private
defence is pleaded, the defence must be a reasonable and probable version satisfying
the Court that the harm caused by the accused was necessary for either warding off
the attack or for forestalling the further reasonable apprehension from the side of the
accused. The burden of establishing the plea of self-defence is on the accused and the
burden stands discharged by showing preponderance of probabilities in favour of that
plea on the basis of the material on record.129

129
Brij Lal v. State of Rajasthan, (SC) 2016 AIR (SC) 3875

57
3.2.2 NECESSITY OF THE RIGHT OF PRIVATE DEFENCE

The right of Self- Defence is, of course, very necessary. However, it is not a
necessary evil. For Pollock130 observes:

“It would be a grave mistake to regard Self- Defence as a necessary evil

suffered by the law because of the hardness of men’s hearts. The right is a just and
perfect one. To “repeal force by force” is the common instinct of every creature that
has means of defence. And when the original force is unlawful, this natural right or
power of man is allowed, nay approved by the law. Sudden and strong resistance to
unrighteous attack is not merely a thing to be tolerated; in many cases it is a moral
duty.”

Bentham131 stressing the necessity of this right observes:

“This right of defence is absolutely necessary. The vigilance of magistrates

can never make up for the vigilance of each individual on his own behalf. The fears of
the law can never restraint bad men so effectually as the fear of the sum total of the
individual resistance. Take away this right, and in so doing you become the
accomplice of all bad men”.

3.2.2.1 RIGHT TO PRIVATE DEFENCE IN LIGHT OF ARTICLE 21 OF THE

CONSTITUTION OF INDIA

What is most precious to any man is his life, next to that of his personal
liberty. That is why life and liberty are two basic human rights which are ensured to
every man, woman and child in any civilized society. This is recognised by our
Constitution and is enshrined as a fundamental right in Article 21. Indeed on such a
high pedestal have these two rights been placed by the Constitution that Article 21 is
couched in a language which is by way of a direction or injunction to all and sundry,
including the State, that no person shall be deprived of his life or personal liberty
except according to the procedure established by law.132 Article 21 reads that no
person shall be deprived of his life or personal liberty except according to the

130
Pollock, Law of Torts, Chapter IV, Section 12
131
Bentham, Principles of the Penal Code, p. 269
132
Inderjit Barua v. Stateof Assam, AIR (1983) Del 513,517

58
procedure established by law. Supreme Court held that the principles of
reasonableness which legally and philosophically is an essential element of equality or
non-arbitrariness pervades. Article 14 like a brooding omnipresence and procedure
contemplated by Article21 must answer the test of reasonableness is order to be in
conformity with Article 14, Constitution.133 The injunction not to deprive a person of
his life or personal liberty arbitrarily is really speaking the mother of the law relating
to right of Private Defence. If the right of Private Defence had not been there, Article
21 would have suffered the meanest violation, For State and everyone is under a
constitutional mandate with other’s life or personal liberty arbitrarily.

3.2.3 MEANING OF THE RIGHT OF PRIVATE DEFENCE

As stated in Mahandi v. Emperor,134 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 in sections 96 & 97, Indian Penal Code, 1980,
contemplates that if a man is attacked he would be justified in the eye of law if he
holds his ground and delivers a counter attack provided always that the injury which
he inflicts in Self-Defence is not out of all proportion to the injury with which he was
threatened.

Section 96 of Indian Penal Code, 1980 is merely declaratory of a right in the

abstract. It lays down that an act done in the exercise of the right of “Private Defence”
is not an offence. It does not define that right nor does it describe its extent and
limitations. This is left to subsequent sections. The right of Private Defence is,
however, here declared to be a justification for a crime. But in order to be a
justification, the crime must be complete without it there is no right of Private against
an act which is not in itself an offence under the Indian Penal Code.135 Consequently,
as laid down in Gorie Sankar v. Sultan,136 an act done in the exercise of the right of
Private Defence is not an offence and does not; therefore give rise to any right of
Private Defence in return.

133
Maneka Gandhi v. Union of India, AIR (1978) SC 597
134
51 CrLJ 654 (Lah.)
135
Ganouri Lal Das v. Queen-Empress, ILR 16 Cal. 206, p. 218
136
AIR, 1917 LB.12 (1)

59
 Again “you cannot claim the right of Private Defence if you yourself did not
commit an attack, nor can such a right be claimed by a person who deliberately joins
in a riot and finds himself attacked and his life is in danger”.137 So also, “When a body
of men are determined to vindicate their rights or supposed rights by unlawful force
and when they engage in a flight with the men who, on the other hand, are equally
determined to vindicate by unlawful force their rights, or supposed rights, no question
of self-defence arises. Neither side is trying to protect itself but each side is trying to
get the better of the other.138 Inflicting blows in retaliation will not amount to an
exercise of the right of Private Defence.139 It is trite law that the right of Private
Defence is a defensive right. It is neither a right of aggression, nor of reprisal.140
There is no right of Private Defence where there is no apprehension of danger, as
where the quarrel had ceased before the accused stabbed the deceased. 141 The right of
Private Defence is available only to one who is suddenly confronted with immediate
necessity of averting an impending danger not of his creation. The necessity must be
present, real or apparent.142

3.2.3.1 USE OF ENGLISH PRECEDENT

The right of Private Defence of person and property in India is codified in

Sections 96 to 106 of the penal code and courts do not think that it is permissible to
interpret the provisions of these sections on the basis of principles governing the right
of self-defence under the common law of England. The provisions are complete in
themselves and the words used in the sections must be looked to the finding the extent
the limits of the right.143

3.2.3.2 RIGHT OF PRIVATE DEFENCE: WHEN A COMPLETE DEFENCE

Right of Private Defence can be exercised only to repeal unlawful aggression

and not to retaliation. This right is one of defence and not of requital or reprisal.144

137
Shamshul Huda, Principles of law of crimes in British India, p. 385
138
Bhairoo Singh v. Emperor, AIR (1935) Nag. 141
139
Harbans Singh v. Emperor, AIR (1947) Lah.37
140
Stateof Jammu and Kashmir v. Hazara Singh, 1980 CrLJ 1501, p. 1506
141
Nga Chit Tin v. King, AIR (1939) Rang. 225, p.239
142
Laxman Sahu v. Stateof Orissa, 1988 CrLJ. 188, p.189
143
Bansa Mudi v. State, AIR (1959) Pat.22, p. 28
144
Rajesh Kumar v. Dharam Vir, CrLJ 2242,p. 2247 (SC)

60
The following are the circumstances in which the right of Private Defence will
completely absolve the accused from all guilt, even when he has voluntarily caused
the death of another person:

(i) Where the right is exercised in the Private Defence of the body of the
accused, if affords a complete defence-
(a) If the deceased was the actual assailant of the accused, and
(b) If the offence committed by the deceased, which occasioned the
exercise of the right was of any of the seven descriptions
enumerated in Section 100, Penal Code.
(ii) Where the right is exercised in the Private Defence of the property of
the accused, it equally affords a complete defence if the offence the
committing of which, or the attempting to commit which, by the
deceased occasioned the exercise of the right was of any of the four
descriptions enumerated in Section 103, Penal Code.

If an act is a legitimate exercise of self-defence then it is no offence in the eye

of law as provided by section 96, I.P.C. and that being so, there is hardly any occasion
for consideration whether it is an act covered by any provision relating to a joint
liability under sections 34 and 35, I.P.C., or to a vicarious liability under section 149,
I.P.C. But where it is alleged that the exercise of the right of Private Defence crossed
the limits laid down by law, the court shall be required to consider whether that right
has been exceeded and if so, then to determine upon the evidence on record what the
individual liability of the accused is. Where, however, there is only one injury
assigned to two persons by the witnesses but there is no evidence of common
intention, section 34 I.P.C., cannot be pressed into service, both become entitled to the
benefit of doubt. No individual liability can therefore be fastened on any of the
appellants in respect of head injury though it was certainly in excess of the legitimate
exercise of the right of defence of person or property. In order that the right of Private
Defence may be established, it is not sufficient for the accused, merely to establish
that the right had commenced. He must also further establish that the right had not
ended.

61
3.2.3.3 RIGHT OF PRIVATE DEFENCE AND SECTION 34 OF I.P.C.

The necessary conditions for the application of section 34 of Indian Penal

Code are common intention to commit an offence and participation by all the accused
in doing act or acts in furtherance of that common intention. If these two ingredients
are established, all the accused would be liable for the said offence, that is to say, if
two or more persons had common intention to commit murder and they had
participated in the acts done by them in furtherance of that common intention, all of
them would be guilty of murder. In that situation Section 96, I.P.C. of the code says
that nothing is an offence which is done in the exercise of the right of Private
Defence. Though all the accused were liable for committing the murder of a person by
doing an act or acts in furtherance of the common intention they would not be liable
for the said act or acts done in furtherance of the common intention, if they had the
right of Private Defence to voluntarily cause death of that person. Common intention,
therefore, has relevance only to the offence and not to the right of Private Defence.
What would be an offence by reason of constructive liability would cease to be one if
the act constituting the offence was done in exercise of the right of Private Defence.145

Common intention, therefore, has relevance only to the offence and not to the
right of Private Defence. What would be an offence by reason of constructive liability
would cease to be so if the act constituting the offence was done in exercise of the
right of Private Defence.146 If any of the accused caused death in exercise of the right
of Private Defence it is his individual act and he alone would be liable for the
consequences thereof.147

3.2.3.4 RIGHT OF PRIVATE DEFENCE TO AGGRESSORS

The right of Private Defence is essentially a defensive right circumscribed by

the statute, available only when circumstances clearly justify it. The right is not to be
allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or
retributive purpose. The right is available against an offence and so an aggressor
cannot claim the right of self-defence. The right of Private Defence cannot be used as

145
Shyam Singh v. State of Uttar Pradesh, 1992 CrLJ 1632, p.1638-1639 (All.)
146
Ibid
147
Salik v. State of U.P., 1992(2) Crimes 384- 385(All.)

62
a shield to justify an act of aggression.148 When the accused is the aggressor he cannot
have any right of Private Defence.149 It is available against an offence and therefore,
where an act is done in exercise of the right of Private Defence, such act cannot give
rise to any right of Private Defence in favour of the aggressor in return. No aggressor
can claim right of Private Defence.150 This would be so even if the person exercising
the right of Private Defence has the better of the aggressor, provided, he does not
exceed his right because the moment he exceeds it, he commits an offence. 151
Aggressors cannot have right of Private Defence even if they receive injuries from the
victims on their aggression. In that case non-explanation by the prosecution of injuries
on the accused did not stand scrutiny.152 In a criminal case, when both sides suppress
their aggression and brand the other as aggressor and it becomes impossible for the
court to decipher as to which out of them is speaking the truth, the court has no option
but, to acquit the accused person153. In State of Uttar Pradesh v. Ram Swarup,154 the
Supreme Court held that:

“… [T]he right of Private Defence is a right of defence, not of retribution. It is

available in face of imminent peril to those who act in good faith and in no case can
the right be conceded to a person who stage-manages a situation where in the right
can be used as a shield to justify an act of aggression. While providing for the right of
Private Defence, the Penal Code has surely not devised a mechanism whereby an
attack may be provoked as pretence for killing”.

Where a right of Private Defence is pleaded, the essence of the case should be
to ascertain who the aggressor was and whether the accused party acted in the
exercise of their right of Private Defence or otherwise. Even where a plea of Private
Defence is not taken, it will be the court’s duty to see if, on the prosecution evidence
such a case is made out or if the accused was the aggressor. A right of Private
Defence cannot be claimed by a person who is himself the aggressor against the
person who is exercising his right of Private Defence against the aggressor. Plea of the
148
Stateof U.P. v. Ram Swarup, AIR (1974) SC 1570
149
Kishan v. State of M.P., AIR (1974) SC 244
150
Chacko v. State of Kerela (2001) 10 SCC 640
151
Munney Khan v. Stateof Madhya Pradesh, AIR (1971) SC 1491
152
Sonelal v. Stateof U.P., AIR (1981) SC 1379
153
Mehar Singh v. State of Punjab, 1997 SCC (Cr) 752
154
AIR (1974) SC 1570

63
right is not available to an aggressor; such plea could be taken only when the
impending danger, real or apparent is present. An accused must not be the creator of
necessity for Self- Defence. Similarly in State of Uttar Pradesh v. Pussu,155 the
Supreme Court held that a person who is an aggressor and who seeks an attack on
himself by his own, aggressive attack cannot rely upon the right of self-defence if in
the course of the transaction he deliberately kills another whom he had attacked
earlier.

Where both the parties have received injuries and it cannot be said who was
the aggressor, both parties cannot claim right of Private Defence. The rule that
unexplained injuries on the accused are proof that the accused was acting in Self-
Defence, is only a rule of prudence and not of law. Whether the rule should be applied
in any particular case depends upon the circumstances of the case. The fact that the
accused has injuries on his person is a circumstance showing that he was exercising
the right of Self- Defence and that the other party was aggressor. The absence of any
injury on the person of the accused is a strong indication that there was no attack on
him and that he was not acting in Self- Defence. The test of injuries is not a sole test
in confirming the defence of the accused. However, on majority of occasions the
courts point out and distinguish the injuries on the accused and the complainant or
deceased. The presence of injuries on the person of the accused shows that the
accused exercised right of Private Defence.

Large number of injuries on the person of the deceased shows that the accused
person exceeded his right of Private Defence. Where the accused by inflicting the
fatal injury on the deceased had exceeded the limit of Private Defence, he was liable
to be convicted under section 304, Part I of the Indian Penal Code. The absence of
injuries on the person of the accused is itself ‘Res ipsa loquitor’ i.e. the thing itself
speaks, it may give rise to a presumption of fact that the victim party was unarmed,
that the weapons were all with the accused, and that the accused person is the
aggressor. It reduces the validity of the plea of Private Defence. It is not necessary for
the accused to raise the plea that he acted in exercise of his right of Private Defence.
Where a plea of Private Defence is referred to the wordings of Section 97, Indian

155
AIR (1983) SC 867

64
Penal Code, it is the duty of the court to examine the same in the light of the evidence
and material before it. Only when the plea is not established, the accused can be
convicted of the offence.

In deciding the question of sanctity of bodily interest the Courts are inclined to
favour the accused who are victims of initial aggressions. Thus, in all cases the
question of justification of right of Private Defence has largely centered on to the
issue of aggressor. The two notable decisions in this regard are State of U.P. v. Ram
Swarup156 and Kishan v. Stateof M.P.157 In former case the Supreme Court laid down
a very stringent test which will entitle initial aggressor to claim the right of Private
Defence under exceptional situations. The observation made by the Supreme Court in
this case requires that the aggressor should have made all efforts to escape from the
situation already created by him, thereby in a way negative the aggression. The
similar issue became critically crucial for justifying exercise of right of Private
Defence of body in Kishan v. Stateof M.P.158 In this case; the session’s judge
acquitted the appellant holding that they were not the aggressors under that situation.
The High Court reversed the decision of the session court and held that the appellant
party was the aggressors. The Supreme Court upheld the finding of the high Court and
decided that the appellant had no justification in exercising the right of Private
Defence because they were aggressors. All these cases give a clear idea that the law of
Private Defence is not to help those who initially take the law into their own hands
and commit aggression against other persons. This type of interpretation hedges the
right of Private Defence within socially meaningful dimensions, thereby bringing the
law of Private Defence in consonance with the dominant policy of criminal justice
administration.

3.2.3.4.1 WHO ARE LIKELY TO BE AGGRESSORS?

If there is a great disproportion between the numbers of injuries on the two

sides, it certainly indicates that those who had inflicted the larger number of injuries
were likely to be the aggressors. It may be that, after an accused person had

156
AIR (1974) SC 1570
157
AIR (1974) SC 294
158
Ibid

65
established his right of Private Defence the mere excess in the number of the injuries
caused by the accused persons may not be weighed in what are called ‘golden scales’.
This does not mean that they have not been weighed at all in any kind of scales. Nor
does it mean that where the accused persons have miserably failed to establish the
alleged right of Private Defence, they can still invoke the principle that the injuries on
the two sides should not be “weighed in golden scales”159.

3.2.3.4.2 LIMITED RIGHTS TO AGGRESSOR FOR SELF-DEFENCE

Despite the general rule depriving an aggressor of the right to exercise self-
defence during the altercation resulting from the aggression, an aggressor does, under
the general rule, have limited rights of self-defence. Since these depend upon post
aggression conduct by someone, it is useful to consider these situations as ones in
which the aggressor’s right of self-defence is ‘reinstated” following conduct of either
of two kinds:160 The first situation in which the aggressor’s right of self-defence is
reinstated can develop only where the aggressor initially used only non deadly force,
as where he began the encounter using fists or some other no deadly weapon. If the
victim responds by using deadly force, the aggressor has the right to defend against
such deadly force.161 Consequently, this can be explained by noting that the initial
victim’s response to the aggression was excessive and thus beyond the victim’s own
right to self-defence. The initial victim thus became the aggressor, and the altercation
became attributable to the initial victim’s overreaction. The second situation in which
the right to use force in self-defence is reinstated exists where the aggressor has
withdrawn from the altercation that he began. The American Courts are divided,
however, on whether the intention to withdraw must be actually communicated to the
victim or whether reasonable efforts to communicate this intent will be sufficient.
Again, this exception can be explained on the ground that once the aggressor has
withdrawn, the continued altercation cannot be attributed to the initial aggressor but
must rather he considered the result of the victim’s overreaction in continuing the
battle.162

159
Mangat v. State, AIR (1967) All. 204, p. 208
160
Sanford H. Kadish, Encyclopedia of Crime and Justice, New York, (1983) p. 948
161
Castillo v. State, 614 p. 2d 756 (Alaska 1980)
162
Sanford H. Kadish, Encyclopedia of Crime and Justice, (New York, 1983) p. 948.

66
 In the aforesaid first situation, the position of Indian law is different. It amount
to the excessive forced used in self-defence. Consequently, the accused defendant
would be punished in such a case but his offence would be reduced from murder to
the culpable homicide not amounting to murder, if the aggressor dies.

However, for the second situation the judicial delineation of the Indian Courts
is lacking. No law is laid down on the subject. However, in State of U.P. V. Ram
Swarup,163 the Supreme Court has shown the American tendency that the right of
Private Defence should revert to the aggressor in such a situation.

3.2.3.4.3 ABSENCE OF EVIDENCE AS TO THE MANNER OF THE START

OF INCIDENT

In absence of evidence in a categorical manner as to how the occurrence

started the benefit of doubt is to be given to the accused and it may be accepted that
they were not the aggressors and on being attacked they had a right of Private
Defence.164

3.3 AVAILABILITY OR NON-AVAILABILITY OF PRIVATE DEFENCE:

FACTORS TO BE KEPT IN VIEW

In order to find whether right of Private Defence is available or not, the entire
incident must be examined with care and viewed in its proper setting. The injuries
received by the accused, the imminence of 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. Thus running to house, fetching a sword and assaulting the deceased are by
no means a matter of chance. These acts bear stamp of a design to kill and take the
case out of the purview of Private Defence.165 Along with the above factors one has
also to remember the following limitations on the right of Private Defence of person
and property:

163
AIR (1974) SC 1570
164
Hari Ram v. State of Rajasthan 1992 Cri LJ 3168,p. 3177
165
Biram Singh, 1975 CrLJ 44 (SC)

67
 (i) That if there is sufficient time for recourse to public authorities, the right is
not available;
(ii) That more harm than that is necessary should not be caused;
(iii) That there must be a reasonable apprehension of death or grievous hurt or
hurt to the person or damage to the property concerned.166

3.3.1 RIGHT OF PRIVATE DEFENCE IS VERY NARROW

The right of Private Defence conferred by the law or preserved by the law for
an individual is a very narrow and circumscribed right and can be taken advantage of
only when the circumstances fully justify the exercise of such right.167 It cannot be
contended that since a death has taken place in the complainant’s party it might well
be held that the accused person were aggressors.168

3.3.2. NO RIGHT OF PRIVATE DEFENCE TILLS ATLEAST AN ATTEMPT

TO COMMIT AN OFFENCE

It will be observed that the right of Private Defence postulates the attempt to
commit or the commission of an offence, specified in Section 97, Indian Penal Code.
There is, therefore, no right unless there was at least an attempt to commit an
offence.169

The right of Private Defence of body commences as soon as a reasonable

apprehension of danger to person arises and continues so long at the danger lasts.170
Whether a person had a right of Private Defence or not has got to be answered with
reference to provisions contained in Section 97 of the Indian Penal Code and the
section, in so far as it deals with the right of Private Defence of persons, clearly states
that every person has a right, subject to the restrictions contained in Section 99, to
defend his body against “any offence”. This section, which contains the law relating

166
Puran Singh, 1975 CrLJ 1479 (SC)
167
Dhanno Khan v. State, AIR (1957) All.317, p. 318
168
Jabbar Dar v. State, AIR (1955) J&K.9, p.11
169
Balackee Jolahed, 10 W.R. 9
170
Naye Nahak v. Stateof Orissa, (1962) 4 Orissa J.D. 17

68
to Private Defence, clearly states in terms that, the right is given to protect one’s body
against “an offence” only.171

3.3.3 FACTORS TO BE CONSIDERED BY THE COURT IN DECIDING THE

PLEA OF PRIVATE DEFENCE

It is true, that, when applying the law of Private Defence, court must make all
reasonable allowances in favour of accused and not apply the law in such a manner
that persons would become cowards. It is also true that, in deciding cases of this type
the mental condition of the assailant must be taken into account and not the views
which are formed by the bye-stander or in the cool atmosphere of the court-room. It is
also true that the action of the accused must not be weighed in golden scales nor
should we assess the actions of the accused step by step in the course of the struggle.
But, in applying all these principles and facts, the central point which must be borne
in mind is, that the right of Private Defence continues only so long as a reasonable
apprehension of the danger persists. When even a number of injuries come to be
inflicted by an accused person in the exercise of the right of Private Defence, the
important point which has got to be determined is as to whether in the circumstances
in which the accused was placed, the apprehension had persisted in his mind when he
inflicted a particular injury or injuries that his life was in danger and whether, under
the circumstances in which he was placed, that apprehension was a reasonable one.

It is true that one of the tests which may be safely and usefully applied would
be to discover whether the accused was still acting under the instinct of self-
preservation or whether other feelings such as those of anger, malice and reprisal had
intervened. In the former cases the accused would be entitled to right of Private
Defence, but not in latter cases.172

Where the accused becoming apprehensive of danger to himself and his family
members close to be defensive in becoming offensive, because of the first incident,
without having the requisite intention to cause the murder of any particular person, his

171
State v. Bharat Singh Odhar Singh, (1961) 1 CrLJ 649, p. 651
172
Umar Khan v. State, (1961) 1 CrLJ. 653, p. 653-654

69
act would, therefore, be termed as one in exercise of the right of Private Defence of
person entitling him to acquittal.173

3.3.3.1 BURDEN OF PROOF

3.3.3.1.1 INTRODUCTION

The Indian Penal Code does not deal with the question as to ‘burden of proof’,
‘duty of court’ and ‘duty of prosecution’ where the plea of private defence is taken.
However, the treatment of the subject seems necessary in order to determine the
practical limits of the private defence.

Every person accused of a crime is always presumed to be innocent, so that

burden lies upon the prosecution to establish beyond reasonable doubt that all the
ingredients of the offence with which the accused is charged are made out. Thus,
prosecution has to prove every ingredient in the crime. The general principles relating
to burden of proof in criminal cases are these two:

Firstly, that the court presumes the accused is innocent, and Secondly, that
once the prosecution has proved beyond a reasonable doubt that the accused is guilty
and he takes any defence, the burden of proving that the fact lies on him.

This is what Section 105, Indian Evidence Act, 1872 provides. It says that if
the accused claims that his case comes within any of the recognised exceptions, the
burden of proving that lies on him. The decision of the House of Lords in
Woolmington v. Director of Public Prosecutions,174 is the leading pronouncement.
Their Lordships pointed out that the prosecution has not merely to prove that the
accused had caused death and ask the court to presume that it was murder; they must
prove every ingredient that makes the killing a murder. It is not for the prisoner to
establish his innocence but for the prosecution to establish his guilt. But while the
prosecution must establish the guilt of the prisoner, there is no such burden laid on the
prisoner to prove his innocence and it is sufficient for him to raise a doubt, as to his
guilt; he is not bound to satisfy the court of his innocence, for there is already the

173
Harish Kumar v. State of M.P., 1996 SCC (CR) 1080, p.1089
174
(1935) AC 462

70
presumption of innocence. This is the effect of presumption of innocence. Lord
Sankey, L.C. reconsidering earlier decisions, most emphatically laid down:

“Throughout the web of the English Criminal law one golden thread is always
to be seen that it is the duty of the prosecution to prove that prisoner’s guilt,
subject….to the defence of insanity and subject also to any statutory exception. If, at
the end of and on the whole of the case, there is a reasonable doubt, created by the
evidence given by either the prosecution or the prisoner, as to whether the prisoner
killed the deceased with a malicious intention, the prosecution has not made out the
case and the prisoner is entitled to an acquittal. No matter what the charge or where
the trial, the principle that the prosecution must prove the guilt is part of the common
law of England and no attempt to whittle it down can be entertained.”

This holds well, not merely in criminal trials, but probably also in every civil
case where any allegation is made that a criminal act has probably also in every civil
case where any allegation is made that a criminal act has been committed. So strong is
this presumption that, in order to rebut it, the crime must be brought home to a
prisoner ‘beyond reasonable doubt’; and the graver the crime, the greater will be the
degree of doubt that is reasonable.175

The Supreme Court176 has recognised that a person has a profound right not to
be convicted of an offence which is not established by the evidential standard of proof
beyond reasonable doubt. Though this standard is a higher standard, there is no
absolute standard. What degree of probability amounts to proof is an exercise peculiar
to each case.…? Doubts must be actual and substantial doubts as to the guilt of the
accused arising from the evidence or lack of it, as opposed to mere apprehension. A
reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair
doubt based upon common sense and reason. It must grow out of the evidence in the
case.

A plea of right of private defence cannot be based on surmises and

speculations must be some evidence to establish the circumstances which necessitated

175 th
Kenny’s Outlines of Criminal law, 19 edition, (1996), by Turner
176
State of Uttar Pradesh v. Krishna Gopal, AIR 1987 SC 2154

71
the exercise of such a right.177 The right of private defence must not be assumed. The
part which alleges the right of private defence has to establish that claim. The Court is
bound to decide the question of private defence. It is true that the burden of proof lies
upon the accused person. But this burden is not as heavy as the burden, which lies on
the prosecution for establishing its case against the accused persons. It is not
necessary for the accused to produce witnesses in defence for making out a case of
private defence from circumstances of the cases.178

The failure on the part of the accused to establish all the circumstances
bringing the case under the exceptions does not absolve the prosecution of its
responsibility to establish the ingredients of the offence and take away the accused’s
right to an acquittal on the basis of a reasonable doubt.179 The burden which rests on
the prosecution to establish its case beyond a reasonable doubt is neither neutralized
nor shifted because the accused pleads the right of private defence. The prosecution
must discharge its initial traditional burden to establish the complicity of the accused
and not until it does so can the question arise, whether the accused has acted in self-
defence. The burden of proving the existence of circumstances which would bring the
case within the general exception of the right of private defence is upon the accused
and the Court must, presume the absence of such circumstances. The burden which
rests on the accused to prove the exception is not of the same rigour as the burden of
the prosecution to prove the charge beyond a reasonable doubt. It is enough for the
accused to show as in a civil case that the preponderance of probabilities is in favour
of his plea.

While this is the general principle, the principle laid down in Section 106,
Indian Evidence Act is also applicable and the effect of this section is that where a
fact is especially within the knowledge of the accused, burden lies upon him to prove
that fact.180 Explaining the reasons Bayley, J. said:

“It is a general rule, that if a negative averment be made by one party, which is
peculiarly within the knowledge of the other, the party within whose knowledge it

177
AIR 1915 Mad. 532
178
Narain Singh v. State of Haryana, AIR 2008 SC 2006
179
Lakshmanan v. Lakshmanan, AIR 1964 Mad. 418
180
Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660

72
lies, and who asserts the affirmative, is to prove it and not he who asserts the negative.
And when we consider the reason of the thing in this particular case, we cannot but
see that it is next to impossible that the witness for the prosecution be prepared to give
any evidence of the defendant’s want of qualification…..There is no hardship in
casting the burden of the affirmation proof on the defendant, because he must be
presumed to know his own qualification, and to be able to prove it….But if the onus
of proving the negative is to lie on the other party…..it will be the cause of many
offenders escaping conviction.”181

Where the accused remained silent and offered no explanation the Supreme
Court refused to draw the inference that he must be guilty. “We are unable to draw
any such inference. It is for the prosecution to prove its case affirmatively and it
cannot gain any strength from the conduct of the accused in remaining silent.”182
Where the accused offered an explanation which was afterwards found to be false
even that has been held to be not a proof of his guilt.183 The rules of evidence have
been built up over the years for one purpose, and that is the protection of the subject
against the danger of being mistakenly convicted of an offence which he has not
committed. Thus, “logically, at least, it is easier to prove innocence than guilt. Proof
of innocence requires only one piece of credible alibi evidence, while proof of guilt
beyond a reasonable doubt requires a mass of evidence that excludes successively
every plausible inference except guilt.”184

It is true that under Section 105, Indian Evidence Act the onus of proving
exceptions, which includes right of private defence, mentioned in the Indian Penal
Code, 1860, lies on the accused, but the section does not at all indicate the nature and
standard of proof required. The Evidence Act does not contemplate that the accused
should prove his case with the same strictness and vigour as the prosecution is
required to prove in a criminal charge. It is sufficient if the accused is able to prove
his case by the standard of preponderance of probabilities envisaged by Section 5 of

181
This result has been criticized. See R. v. Oliver, (1944) M.B. 68, Jon v. Humphreys, (1955) 1 WLR
(DC) 1 , pp. 212, 213
182
Nagappa Dondiba v. State of Karnataka, AIR 1980 SC 1753
183
Shankarlal v. State of Maharastra, AIR 1981 SC 765
184
WILLIAM, J. Curran & E. Donald Shapira, Law, Medicine and Forensic Science, reviewed in (1982) 92
Yale.L.J. 203

73
the Evidence Act as a result of which he succeeds not because he proves his case to
the guilt but because probability of the version given by him throws doubt on the
prosecution case and, therefore, the prosecution cannot be said to have established the
charge beyond reasonable doubt.

Under the first part of Section 105 of the Indian Evidence Act it is enough if
the accused is successful in bringing his case within the exception. It covers the
complete proof of the exception pleaded by a preponderance of probability. The
existence of the exception entitles the accused to the benefit of doubt on the
ingredients of offence. The language used in the first part of the Section 105 appears
to be deliberately less precise so that the accused may get benefit of the exception
even if he fails to discharge his burden fully. The last part of the Section 105 even if it
is strictly and literally interpreted, also does not justify that it is obligatory on the part
of the accused to prove the exception fully by a preponderance of probability.
“Burden of proof” means obligation to prove the truth or false-hood of a fact,185 or
proposition. Proof, however, does not mean proof in the rigid, mathematical sense,
because that is not possible.186 In a criminal case, it means such evidence as would
induce a reasonable man, in the particular circumstances of the case in which the
claim arises, to act upon the supposition that it exists.187 The rule has its origin in the
Roman maxim Ei qui affirmat non ei qui negat incumbit probation188. The maxim is
based upon two considerations, viz.; he who seeks the aid of the Court should be the
first to prove that he has a case and that in the nature of things it is more difficult to
prove than the affirmative. In criminal cases proof beyond reasonable doubt189 is
required for conviction. The burden of proof is used in two distinct senses viz., (i) the
burden of establishing a case and (ii) the duty to adduce evidence.190

185
Bhoormal Prem Chand v. Collector of Customs, Madras, AIR 1967 Mad. 39, p.43
186
Ratanlal and Dhirajlal, The Law of Evidence, (1969), p.8
187
The Indian Evidence Act (1 of 1872), Section 103; Myron L.Gorden, “Fraud in Federal Income Tax”,
Morquitte Law Review, (1948), p. 120 at 127
188
Phipson on Evidence (1970) p. 90, See also Stephen, Digest on the Law of Evidence, Article 104, S.C.
Sarkar, Law of Evidence, (1953) p. 764
189
Ruppert Cross, Evidence (1967) at p.88; See for meaning of “proof beyond reasonable doubt”
Millar v. Minister Pensions, (1947) 2 All.ER 372 at p.373, per Lord Denning; R. v. Kritz, (1950) 1 K.B.82;
90 and R. v. Summers, (1952) 1 A11.ER1059, per Lord Goddard.C.J.; see also J.A. Courts, “Standards of
proof in the Divorce Court”, (1950) 14 Mod.L.R. 41 1
190
Halsbury Laws of England, Vol. XIII Para 605

74
 In reference to the burden of proof that lies in the accused to prove his
defence, the Supreme Court laid down certain principles, which have been restated by
FAZAL ALI, J., in Rabindra Kumar Dey v. State of Orissa:191

In our opinion three cardinal principles of criminal jurisprudence are well

settled, namely:

i) That the onus lies affirmatively on the prosecution to prove its case beyond
reasonable doubt and it cannot derive any benefit from weakness or falsity
of the defence version while proving its case;
ii) That in a criminal trial the accused must be presumed to be innocent unless
he is proved to be guilty; and
iii) That the onus of the prosecution never shifts.

3.3.3.1.2 BURDEN OF PROOF WHEN BECOMES RELEVANT

The true rule appears to be that where a certain intention or knowledge is part
of the definition of an offence it is on the prosecution to prove it and in proving it
facts have to be necessarily ascertained upon which the accused is entitled to rely for
disproof or mitigation of his offence no less than for proving his non- liability. In such
cases the question is not one of the burdens of proof at all, but rather a question of
what offence the evidence discloses. But where proof of the offence is complete and
independent evidence is required to disprove the offence, then the question of onus
becomes material. Even in that case the accused may by cross examination of the
prosecution witnesses or otherwise establish his exceptional immunity from the crime,
if the facts are all there, and there is no question of surprise or unfairness to either
side, the court will permit the accused to establish his non- liability on the facts
appearing on the record. But where the evidence is clear and unequivocal he cannot be
permitted to take a line inconsistent with his previous defence and argue for his
innocence on hypothetical grounds. He cannot persuade the court to assume, facts
which he never pleaded, the pleading of which would necessitate the calling in of new
evidence. Though the burden of proof for a defence may not be as stringent as for the
prosecution, the law does not recognize mere ipse dixit of the accused or the

191
(1976) 4 SCC 233

75
vociferous argument of the advocate to be sufficient to meet the aforesaid test. Neither
the imagination of the counsel nor analyzing ability of the court can be summoned to
provide a defence to an accused who has himself not taken any defence or having
taken it, is unable to prove it.192

3.3.3.1.3 NO GENERAL RULE REGARDING PLEAD OF PRIVATE

DEFENCE

It is possible to formulate a general rule which the court at times are apt to lay
down in cases which, from their very complexity and variety, present no common rule
for guidance. While then the plea of private defence should in strictness of law be
raised by the accused, the court out of its solicitude for doing justice allows such a
plea to be argued at any stage, not upon any hypothetical grounds, but if the facts
necessary to establish it are on record.193 But this is an indulgence and not a right and
it cannot be extended in a case involving consideration or proof of independent facts,
as for instance, defamation.194 Moreover, the court will not entertain a plea on appeal
inconsistent with the defence set up at the trial.195

3.3.3.1.4 SCOPE OF PLEA OF PRIVATE DEFENCE

Right of private defence is essentially defensive right circumscribed by

governing statute. It should not be allowed to be pleaded or availed as a pretext for
vindictive, aggressive or retributive purpose of offence. If the accused has a case for
the exercise of private defence it is desirable that he should come out with that
defence squarely and place all the materials before the court at the earliest
opportunity. If from facts and circumstances of case accused is able to establish
exercise of right of private defence he has to be conferred benefit of same. It is not
necessary for the accused to plead in so many words that he acted in self defence. If
the circumstances show that the right of private defence was legitimately exercised, it
is open to the court to consider such a plea. Court can consider it even if the accused
has not taken it, if the same is available, to be considered from the material on record.

192
Ram Manohar v. State of Madhya Pradesh (1989) 1 CrLJ 717, pp. 721,722 (M.P.)
193
Kartar Singh v. Raj., 1952 CrLJ 1034
194
Abdur Razak v. Gansi Nath, (1910) PWR 4
195
Philpat, (1912) 7 CrAR140

76
A person taking the plea of the right of private defence is not required to call evidence
on his side, but he can establish that plea by reference to the circumstances transpiring
from the prosecution evidence itself. A plea of right of private defence cannot be
based on surmises and speculation. While considering whether right of private
defence is available to accused, it is not relevant whether he may have a chance to
inflict severe and mortal injury on aggressor. In order to find whether right of private
defence is available to an accused entire incident must be examined with care and
viewed in its proper setting.

3.3.3.1.5 WHEN ACCUSED NOT PLEADS RIGHT OF PRIVATE DEFENCE

It is well- settled principle that it is not necessary that accused must have
pleaded the right of self- defence. No doubt under Section 105 of the Evidence Act
the burden to prove the guilt lies on prosecution. It does not change even where the
accused pleads the right of defence. The accused may raise a plea of self- defence
either by pleading the same specifically or by relying upon the probabilities and
circumstances obtaining in the case. He can adduce positive evidence to prove his
plea of self- defence or rely on the prosecution case itself and introduce his plea in
cross- examination of witnesses and also rely on probabilities and other
circumstances.196 Most of the High Courts and the Supreme Court have ruled that the
benefit of self-defence may be given to the accused, if there is evidence to the effect
of self-defence, even where the accused does not plead the right of self- defence.
Supreme Court in G. V. S. Subbrayanam v. State of A.P.,197 where Dua J., speaking
for the Court held that even where the plea of self-defence was not raised by the
accused the Court is not precluded from “giving to his the benefit of the right of
private defence, if on proper appraisal of the evidence and other relevant material on
the record, the Court concludes that the circumstances in which he of and himself at
the relevant time gave him the right to use his gun in exercise of this right.” The
aforesaid view has been followed by various High Courts. The Madras High Court in
In re. Jogali Bhagro Naik198 held that even if an accused does not plead self-defence,
it is open to the Court to consider such a plea, if the same arises from the material on

196
Bahadur Singh v. State of Punjab, (1992) CrLJ 3709, p. 3710 (SC)
197
(1970) 1 SCC 235 at 247
198
AIR 1927 Mad. 97

77
record Similarly the Allahabad High Court in State of U.P. v. Jagdish Puttoo Lai,199
held that even in the absence of any plea of self-defence had not taken by the accused
specifically, the Court is empowered to give him the benefit of such plea, if on a
proper appraisal of the evidence, it come to the conclusion that the injury caused by
the accused was is the circumstances of the case inflicted at a time when he was
having reasonable apprehension of grievous hurt being caused to him by the deceased.
In Hanumantappa Bhimappa Dalavai v. State of Karnataka,200 the Supreme Court
stated that Section 96 of IPC does not define the expression right of private defence. It
merely indicates that nothing is an offence which is done in the exercise of such right;
whether in a particular set of circumstances, a person acted in the exercise of such
right, is a question of fact to be determined on the facts and circumstances of each
case. The Court must consider all the surrounding circumstances. Is not necessary for
the accused to plead that he exercised in private defence, if the circumstances shows
that the right of private defence was rightfully exercised, it is open to the Court to
consider such a plea. Court can consider it even if the accused has not taken it, if the
same is available to be considered from the material on record. It is submitted that the
latter view seems to serve the ends of justice. It is the settled principle of criminal law
that every individual is innocent unless proved otherwise. This supports the idea that
the benefit of doubt should be given to the accused, on the basis of this theory, the
later decisions have taken the line that if the evidence produced before the Court
indicates that the accused might have acted in the exercise of right of self-defence, he
may be given the benefit. Indeed, it helps the Courts in ascertaining the truth, which is
the ultimate goal of criminal justice.

3.3.3.1.6 WHEN ACCUSED PLEADS RIGHT OF PRIVATE DEFENCE

The onus of establishing the right of private defence is upon the accused but a
person taking the plea of private defence may not call evidence on his side. He may
establish that plea by reference to circumstances transpiring from the prosecution
evidence itself. The Supreme Court in Harbhajan Singh v. State, of Punjab,201
observed: Where the burden of an issue lies upon the accused, he is not required to

199
AIR 1966 All 244
200
( 2009) CrLJ 3045 (SC)
201
AIR 1966 SC 97

78
discharge that burden for leading evidence to prove his case beyond a reasonable
doubt. That, no doubt, is the test prescribed while deciding whether the prosecution
has discharged its onus to prove the guilt of the accused, but that is not a test which
can be applied to an accused person who seeks to prove substantially his claim that his
case falls under an Exception. Where an accused person is called upon to prove that
his case falls under an Exception, law treats the onus as discharged if the accused
person succeeds ‘in proving a preponderance of probability. Similarly the Supreme
Court reiterated the same view in V.D. Jhinqan v. State of U.P.,202 and clearly stated:
It is sufficient if the accused person succeeds in proving a preponderance of
probability in favour of his case. It is not necessary for the accused person to prove his
case beyond a reasonable doubt or in default to incur a verdict of guilty; the onus of
proof lying upon the accused person is to prove his case by a preponderance of
probability. Likewise the Supreme Court in Ram Din Singh v. State of Bihar203
asserted that the onus of establishing the plea of the right of private defence is on the
accused, though he is entitled to show that this right is established or can be sustained
on the prosecution evidence itself. The same view was reiterated in Rajnikant v. State
of Maharashtra,204 wherein the Supreme Court held that 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 record for showing that he had
acted in self-defence. The Supreme Court in State of U.P. v. Ram Swarup,205 again
stated that the burden which rests on the prosecution to establish its case beyond a
reasonable doubt is neither neutralized nor shifted because the accused pleads the
right of private defence. The prosecution must discharge its initial traditional burden
to establish the complicity of the accused and not until it does so, can the question
arise whether the accused had acted in self- defence. In Krishna v. State of U.P.,206
the Supreme Court elucidated its view by holding that the right of private defence
need not be proved beyond reasonable doubt. It is enough, if the accused establishes
fasts which on the test of preponderance or probabilities make his defence acceptable.

202
AIR 1966 SC 1762
203
(1970) SCC (Cri.) 376
204
(1971) CrLJ (N) 5 (SC)
205
(1974) 4 SCC 764
206
(2007) CrLJ 3525 (SC)

79
In V. Subramani v. State of Tamil Nadu,207 the Supreme Court stated that it would be
a question of assessing the true effect of the prosecution evidence and not a question
of the accused discharging any burden. It added that for pleading the right of self-
defence the accused is not required to adduce evidence in support of his plea. He may
elicit such facts and circumstances from the evidence led by prosecution and from
cross-examination of prosecution witnesses, which may support his plea and utilize
them in meeting the case of prosecution. In Arun v. State of Maharashtra208, the
Supreme Court stated that if right of private defence is taken, the defence must be
reasonable and probable version satisfying the Court that harm caused by the accused
was necessary to avoid the attack. The burden of establishing the plea of self defence
is on accused. The burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of material on record. The accused
need not prove the existence of the right of private defence beyond reasonable doubt.

The aforesaid discussion leads as to the conclusion that the burden of proof on
the accused is not of the same nature as is on the prosecution. The prosecution is
bound to prove the guilt of the accused beyond reasonable doubt but the accused is
not required to call the evidence to prove that he had acted in the exercise of the right
of private defence. He may prove it by showing a preponderance of probability on the
basis of even the prosecution evidence. Once, he creates the doubt, the burden shifts
from the accused to the prosecution.

3.3.3.1.7 WHEN BURDEN OF PROOF OF DEFENCE IS DISCHARGED

The burden of the accused is discharged, as and when the Court is brought to a
point where a doubt with respect to the facts of the case is created. The Supreme
Court in Pratap v. State of U.P.,209 lays down the principle when the burden of
defence is discharged. The Court stated that, the burden on an accused person to
establish the plea of self-defence is not as onerous as the one which lies on the
prosecution. While prosecution is required to prove its case beyond reasonable doubt
the accused need not establish the plea of the hilt and may discharge his onus by

207
(2005) CrLJ 1727 (SC)
208
(2009) CrLJ 2065 (SC)
209
AIR 1976 SC 966

80
establishing a mere preponderance of probability either by laying basis for that plea in
the cross-examination of the prosecution witnesses or by adducing defence evidence.
Similarly in, State of U.P. v. Ram Sarup,210 the Court held that, the burden which rests
on the accused to prove that any of the general exceptions is attracted does not
absolve the prosecution from discharging its initial burden and truly the primary
burden never shifts save when a statute displaces the presumption of innocence in
deed the evidence, though insufficient to establish the exception, may be sufficient to
negative one or more of the ingredients of the offence. That is to say, an accused may
fail to establish affirmatively the existence of circumstances which would bring the
case within a general exception and yet the facts and circumstances proved by him
while discharging the burden under Section 105 of the Evidence Act may be enough
to cast a reasonable doubt on the case of the prosecution, in which event he would be
entitled to an acquittal. In State of Madhya Pradesh v. Ramesh,211 the Supreme Court
stated that, under Section 105 of the Evidence Act, 1872, the burden of proof is on the
accused, which sets up the plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of self-defence. The Court shall
presume the absence of such circumstances. It is for the accused to place necessary
material on record either by him adducing positive evidence or by eliciting necessary
facts from the witnesses examine for the prosecution. An accused talking the plea of
the right of private defence is not necessarily required to call evidence; he can
establish his plea by reference to circumstances transpiring from the prosecution
evidence itself.

The question in such a case would be a question of assessing the true effect of
the prosecution evidence, and not a question of the accused discharging any burden.
The accused need not prove the existence of the right of private defence beyond
reasonable doubt. It is enough for him to show as in a civil case that the
preponderance of probabilities is in favour of his plea.

210
AIR 1974 SC1570,p. 1576
211
AIR 2004 SCW 6663

81
3.3.3.1.8 WHEN PLEA OF PRIVATE DEFENCE TO BE RAISED

It is now well settled that in taking a plea of exercise of the right of private
defence of person or property an accused person need not take it specifically or in so
many terms nor need he adduce any evidence on his own behalf for substantiating
such a plea. He may elicit such facts and circumstances from the cross- examination
of prosecution witnesses as may support this plea and utilize them in meeting the case
of the prosecution.212 But once the defence has established that the accused acted in
the exercise of the right of private defence, the burden of proving that they exceeded
that right lies on the prosecution.213 It is competent to the accused to deny the act, and
if proved, to justify it, though in some cases the contrary has been maintained. So it is
said that “No accused person can at the same time deny committing an act and justify
it. The law does not admit of justification by putting forward hypothetical cases; it
must be by proof of the actual facts.214

3.3.3.1.9 PREPONDERANCE OF PROBABILITIES

Plea of Burden of proof is on the accused and same can be proved by

preponderance of probabilities in favour of the plea on the basis of the material on
record. It is not necessary to lead defence witnesses; plea can be established from
evidence of prosecution witnesses.215 Where an accused person is called upon to
prove that his case falls under an exception, law treats the onus as discharged if the
accused person succeeds in proving a preponderance of probability. Preponderance of
probability is proved, the burden shifts to the prosecution which has still to discharge
its original onus. It must be remembered that basically the original onus never shifts
and the prosecution has, at all stages of the case, to prove the guilt of the accused
beyond reasonable doubt.216 The Supreme Court of India in Munshi Ram v. Delhi,
Administration217, laid down the general rule that the burden of proof on the accused
is not as heavy as the burden which lies on the prosecution for establishing its case

212
Superintendent and Legal Remembrancer of Legal Affairs v. Bhupati Bhusan Biswas, (1 956) AWR
(Sup.) 10
213
Makhdoom Singh v. Emperor, AIR 1945 Oudh 296, p. 297
214
Dhirenda Nath v. State, (1952) CrLJ 1427
215
Madhu Gupta v. State of NCT of Delhi, CRLA 357 & 514 (2017) Del.H.C.
216
Rishi Kesh Singh v. State, AIR 1970 All., pp. 66-67
217
AIR 1968 SC 702

82
against him. The accused can discharge this burden by showing preponderance of
probabilities in favour of the plea of self-defence on the basis of the material on
record. Reiterating the same in State of Gujarat v. Fatima218, that it is open for the
Court to consider the plea of self-defence, if the same arises from the material on
record even if it has not been pleaded by the accused and further that the burden of
establishing the plea can be discharged by shoving preponderance of probability in
favour of the plea on the basis of material on record In this case, a lady accused
caused death of a person by squeezing his testicles. She did not raise the plea of right
of private defence of body in her statement. Besides, no basis for the plea was laid in
the cross- examination of prosecution witnesses or by adducing any defence evidence.
But still the Court held that the squeezing of testicles of the deceased was in self-
defence and the act of the accused was not punishable. The Supreme Court has
favored a trend of treating the right of private defence on a different footing from
other general exceptions on the question of proof. It has held in the above case that
even where the right of private defence was not specifically pleaded, the Court of its
own can explore the possibility of giving advantage of the right to the accused. The
phrase “preponderance of probability” describes the lower burden of the accused for
proving his exception in contrast to the higher burden of the prosecution to prove his
case beyond reasonable doubt. “Preponderance” literally means nothing more than an
outweighing in the process of balancing. However, slight may be the tilt of the
balance, It covers every preponderance of the balance of probability whether slight or
overwhelming. Indeed, the dividing line between “preponderance of probability” and
“reasonable doubt” is very thin, though it is there.

The decision of the Supreme Court in Salim Zia v. State of U.P.,219 is a

Landmark on the point, held that, “It is true that the burden on an accused person to
establish the plea of self-defence is not as onerous as the one which lies on the
prosecution. While the prosecution is required to prove its case beyond reasonable
doubt, the accused need not establish the plea to the hilt and may discharge his onus
by establishing a mere preponderance of probabilities either by laying basis for that

218
AIR 1975 SC 1478
219
AIR 1979 SC 391

83
plea in the cross examination of prosecution witnesses or by adducing defence
evidence.

The principle laid down in the Salim Zia v. State of U.P. was reiterated by the
Supreme Court in Mahinder Pal Jolly v. State of Punjab,220 when it observed that in
the matter of private defence of property or person the onus is on the accused to
establish this right not on the basis of the standard of proving it beyond doubt but on
the theory of preponderance of probability. He might or might not take this plea
explicitly or might or might not adduce any evidence in support of it but he can
succeed in his plea, if he is able to bring out materials on the record on the basis of
evidence of the prosecution witnesses or on other pieces of evidence to show that the
criminal act which he committed was justified in exercise of his right of private
defence of person or property or both.

In Rampal v. State of Haryana,221 the Supreme Court held that it is well-

settled that when the accused set up a plea of self-defence, they need not prove their
case beyond all reasonable doubt and within the parameters under Section 105, if
Evidence Act if by preponderance of probabilities, the plea taken by them becomes
plausible then same should be accepted or at least, a benefit of doubt arises. In other
words, the accused need not establish their right beyond all reasonable doubt. It is
enough if a reasonable doubt arises on examination of the probabilities of the case. If
the plea of right of private defence put forward by the accused appears to be quite
probable, it cannot be rejected.

3.3.3.1.10 STANDARD OF PROOF

Section 96 occurs in chapter IV of the Indian Penal Code, 1860 i.e. General
Exception to Criminal liability, and it has been explained that on prosecution
succeeding to establish the foundation of the case, onus lies upon the accused to prove
the exception including one under Section 96, I.P.C. When plea of private defence is
set- up, Section 105, Evidence Act, does not neutralize or shift the general burden that
lies on the prosecution to prove beyond reasonable doubt all the ingredients of the
offence with which the accused stand charged. Accused has to rebut the presumption
220
AIR 1979 SC 577
221
AIR 1993 SC 1979

84
envisaged in the last limb of Section 105, Evidence Act, by bringing on record
evidential material before the court sufficient for a prudent man to believe that the
existence of such circumstances is probable. He may discharge his burden by
establishing a mere balance of probabilities in his favour with regard to the said
circumstances. That material may consist of oral or documentary evidence,
admissions appearing in evidence led by the prosecution or elicited from the
prosecution witness(s) in cross- examination, presumptions and the statement of the
accused recorded under Section 313, Cr.P.C. Notwithstanding the failure of the
accused to establish positively the existence of circumstances which would bring his
case within an exception, the circumstances proved by him may raise a reasonable
doubt with regard to one or more of the necessary ingredients of the offence itself. 222
Thus it is for the defence relying on right of private defence to prove that he is within
the exception no matter the right is or is not alleged as a defence. 223 The law is well
settled that when an accused takes the plea of the right of private defence, the burden
is on him to establish the existence of right of private defence; but he need not prove
the existence of the right of private defence beyond reasonable doubt.224

Whether an accused person, taking a plea of the right of private defence, is to

prove it in the same manner as the prosecution is required to prove its case or whether
a lower standard of proof would suffice, the accused must at least make a case out of
which a plea of the right of private defence might arise. It is true that an accused
person taking the plea of the right of private defence is not required to call evidence
but can establish that plea by reference to circumstances transpiring from the
prosecution evidence itself. But the question in such a case would be a question of
assessing the true effect of the prosecution evidence and not a question of the accused
discharging any burden.225 No doubt where the accused sets up a plea of private
defence and the court is in doubt whether or not the accused has been able to
substantiate completely to its satisfaction the plea set up by him, the accused is
entitled to the benefit of doubt.226 That principle has absolutely no application to a

222
Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660
223
Veerana Nandan v. Emperor, 13 CrLJ 470
224
Madan Chandra Dutta v. State of Assam, 1977 CrLJ 506
225
Dhirendra Nath v. State, AIR 1952 Cal. 621, p. 624
226
Madan Pal v. State of Uttar Pradesh, 1992 J.I.C. 747, p. 752

85
case where an accused person set up a plea of self- defence but completely fails to
establish it or fails to adduce any evidence in support of it.227 A plea of right of private
defence cannot be based on surmises and speculation. There must be some evidence
to establish the circumstances which necessitated the exercise of such a right. 228 The
right of private defence must not be assumed. The party, which alleges the right of
private defence, has to establish that claim. The court is bound to decide the question
of private defence. It is true that the burden of proof lies upon the accused persons.
But this burden is not as heavy as the burden, which lies on the prosecution for
establishing its case against the accused persons. It is not necessary for the accused to
produce witnesses in defence for making out a case of private defence from
circumstances of the case.229 The burden which rests on the prosecution to establish
its case beyond reasonable doubt is neither neutralized nor shifted because the
accused pleads the right of private defence. The prosecution must discharge its initial
traditional burden to establish the complicity of the accused and not until it does so
can the question arise, whether the accused has acted in self- defence. The burden of
proving the existence of circumstances which would bring the case within the general
exception of the right of private defence is upon the accused person and the court
must presume the absence of such circumstances. The burden which rests on the
accused to prove the exception is not of the same rigour as the burden of the
prosecution to prove the charge beyond reasonable doubt. It is enough for the accused
to show as in a civil case that the preponderance of probabilities is in favour in his
plea.230 It is not necessary for the accused to lead evidence to prove their defence
because such proof can be offered by relying on the evidence led by the prosecution;
the material elicited by cross- examination the prosecution witnesses and the totality
of facts and circumstances emerging out of the evidence in the case.231

As to standard of proof of right of private defence the accused need not

establish the plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that a plea in the cross-

227
Bodhan v. Emperor, AIR 1948 All. 223,p. 225
228
Shankar Rai v. State of Kerala, (1992) CrLJ 2871, p. 2873
229
Mangalkhan v. State, (1960) AWR (HC) 173
230
Munshi Ram v. Delhi Administration, AIR 1968 SC 702
231
Gurmit Singh v. State of Punjab, 2002 SCC (Cr) 752, p. 757

86
examination of prosecution witness(s) or by adducing defence evidence. 232 The
burden which rests on the prosecution to establish its case beyond reasonable doubt is
neither neutralized nor shifted because the accused pleads the right of private defence.
The prosecution is bound to discharge its initial burden to establish the complicity of
the accused not until it does so, no question arise whether the accused has acted in
self- defence. It is open to a criminal court to find out, even if the accused does not
take the plea of self- defence, from the evidence of the witnesses examined by the
prosecution and the circumstances of the case either that what would otherwise be an
offence is not one because the accused has acted within the strict confines of his right
of private defence or that the offence is mitigated because the right of private defence
is exceeded.233 On prosecution establishing its case prima facie the burden of
establishing that plea is on the accused and that burden can be discharged by showing
preponderance of probabilities in favour of that plea on the basis of the material on
record.234 The accused is not required to prove his case beyond all reasonable doubt. It
is sufficient that the defence plea is plausible on preponderance of probabilities.235
When a plea of self- defence is taken and if the court is satisfied that it probable and
there is basis for the same and if the benefit is to be given to the accused, then the
legality of the conviction itself is involved.236

In Yogendra Moraji v. State of Gujarat,237 the Supreme Court enunciated the

law as, “The accused has to rebut the presumption envisaged in the last limb of
Section 105, by bringing on record evidential material before the Court sufficient for a
prudent man to believe that the existence of such circumstances is probable. In other
words even under Section 105 the standard of proof required to establish those
circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But
within that standard there are degrees of probability and that is why under Section 105
the nature of burden on an accused person claiming the benefit of an exception is not
as onerous as the general burden of proving the charge beyond reasonable doubt cast
on the prosecution. The accused may discharge his burden by establishing a mere
232
Salim Zia v. State of Uttar Pradesh, AIR 1979 SC 391
233
Balkaran Singh v. State of Rajasthan, 1978 CrLJ NOC 82
234
State of Gujarat v. Bai Fatima, AIR 1975 SC 1478
235
State of Punjab v. Gurubux Singh, (1996) SCC (Cri) 88
236
Savita Kumari v. Union of India, (1993) CrLJ 1590
237
AIR 1980 SC 660

87
balance of probabilities in his favour with regard to the said circumstances. The
material before the Court to establish such a preponderance of probability in favour of
the defence plea may consist of oral or documentary evidence, admissions appearing
in evidence led by the prosecution or elicited from prosecution Witnesses in cross-
examination presumptions, and the statement of the accused recorded under Section
313 of the Code of Criminal procedure, 1973.

In Kashi Ram v. State of M.P.,238 the Supreme Court stated that Section 105
Indian Evidence Act provides that the burden of proving the existence of
circumstances which would bring the act of the accused alleged to be an offence
within the exercise of right of private defence is on him and the Court shall presume
the absence of such circumstances. However, it must be borne in mind that the burden
on the accused is not as heavy as it is on the prosecution. While the prosecution must
prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the
accused has to satisfy the standard of prudent man. If on the material available on
record a preponderance of probabilities is rose which renders the plea taken by the
accused plausible then the same should be accepted and in any case a benefit of doubt
should deserve to be extended to the accused.

Thus, it is evident from the above decisions that standard of proof on the
prosecution is heavier and stronger than that of the accused. It reflects that the law is
liberal to the accused on this point.

3.3.3.1.11 RIGHT OF PRIVATE DEFENCE AND PLEA OF ALIBI

Plea of alibi and plea of right of private defence can be taken alternatively. 239
The plea of alibi can succeed only if it is shown that the accused was so far away at
the relevant time that he could be present at the place where the crime was committed.
The plea of alibi postulates the physical impossibility of the presence of the accused at
the scene of offence by reason of his presence at another place. 240 The fact that the
plea of self- defence was not raised by the accused and that he had on the contrary
pleaded alibi did not preclude the court from giving to him the benefit of the right of

238
AIR 2001 SC 2902
239
Karnail Singh v. State of Rajasthan (1977) CrLJ 1729 (Raj.)
240
Rajesh Kumar v. Dharamvir & others, (1997) CrLJ 2242 (SC)

88
private defence, if on proper appraisal of the defence and other relevant material on
the record the court concluded that the circumstances in which he found himself at the
relevant time gave him the right to use his gun in exercise of his right. The analogy of
estoppels or of the technical rules of civil proceedings is, in such cases inappropriate
and the courts are expected to administer the law of private defence in a practical way
with reasonable liberality so as to effectuate its underlying object, bearing in mind
that the essential basic character of this right is preventive and not retributive.241

It is open for the accused to plead that he was present elsewhere at the time of
occurrence and did not commit the act alleged against him but that if it is taken to be
proved that he committed the offence, he acted in his right of private defence of
property. If there is sufficient material on the record in a case to show that the
appellant acted in his right of private defence of property, he cannot be deprived of
the benefit of the plea of self- defence even though he tried to set up the plea of
absence in vain and pleaded the right of private defence of the property in the
alternative. Hence, it is the duty of the court to sit and assess the evidence.242 Where
accused raised an express plea of alibi, a plea of self- defence on their behalf is
inconsistent with the express plea raised by them. However, if on the material placed
on record the plea of private defence could be made out consistent with the provision
of Section 105, Indian Evidence Act; there will no justification to deny the benefit of
it to be accused.243

So, what relationship exists between the plea of alibi and the benefit of right of
private defence? A survey of decided cases reveals that two theories have emerged
with respect to this question. The former view is rigid whereas the latter one liberal.
On this point, it may be submitted that it would be appropriate to coin two phrases to
express the aforesaid two approaches on the subject. The first, view may be termed as
“Theory of Rigid Approach” and the second as “Theory of Liberal Approach”. The
new terminology will naturally depict the nature and character of two different views.

241
G.V.S. Subbrayanam v. State of Andhra Pradesh, AIR 1970 SC 1079
242
Karnail Singh v. State of Rajasthan, (1977) CrLJ 1929, p. 1733
243
State of Mysore v. Raju Shetty, AIR 1961 Mys. 74, p. 80

89
3.3.3.1.13 THE THEORY OF RIGID APPROACH

The first theory advocates that the benefit of self-defence should not be
extended to the accused, who pleads alibi, because both are inconsistent to each other.
The seed of this theory appears to have been sown in 1877 in re. Jamsher Sirdar244
wherein the Calcutta High Court held that the act charged cannot be denied and the
plea of private defence rose as an alternative. The right of private defence is not
available to the accused who pleads alibi. The aforesaid view received the approval of
the Calcutta High Court in 1915 in Emp. v. Upendra Math Das245. After about four
decades, the Calcutta High Court again affirmed the same view in Dhirendra Nath v.
State246, and held that, “A plea of the right of private defence can be taken by a person
who admits the act charged against him, but pleads an excuse. If a person, however,
states that he had not done the act at all, it is difficult to see how at the same time, the
question of a right of private defence would arise.”

Two years later the Calcutta High Court re-affirmed the view of aforesaid
three cases, in Eusuf SK. v. The State247 The Court observed:

“The learned judge in dealing with the case of Eusuf only placed before the
jury the defence of alibi and did not place the further defence that he was acting in the
exercise of the right of private defence or property and person. Now, Eusuf Sheikh in
his statement definitely stated that he was at present at the place of occurrence and
that he was at Ichapur undergoing medical treatment at the time and evidence was
adduced in support of that case. There are certain decisions that if the accused denies
having participated in the occurrence at all, the right of private defence cannot arise.”

From the aforesaid decisions it is evident that the right of self-defence is not
available to an accused person pleading alibi.

244
(1877) 1 Cal.L.R. 62 at 65
245
AIR 1915 Cal. 773, 19 CWN 653, 1915 I.C.Vol.30 p.l 13
246
AIR 1952 Cal. 621
247
AIR 1954 Cal. 258 at 268

90
3.3.3.1.13 THE THORY OF LIBERAL APPROACH

The second theory advances the view that the accused may be given the
benefit of self-defence, even through be pleads alibi, as the accused might not have
felt necessary to take the plea of self-defence due to some reasons and on the basis of
the whole evidence produced before the Court, it might be convinced that the accused
could have acted in self-defence, Besides, the ultimate aim of the Court is to ascertain
truth in order to meet the ends of justice. This theory is supported by many decisions
of the High Courts and the Supreme Court.

The Mysore High Court in State of Myore. v. Raju Shefty,248clearly laid down
that if on the material placed on record, the plea of private defence could be made out,
there would be as justification to deny its benefit to the accused .even though he
pleaded Alibi.

The aforesaid line of view has been followed by the Allahabad High

Court in Rishi Kesh Singh v. State249 wherein the accused had pleaded alibi but a
suggestion of self-defence was made in the cross-examination of the prosecution
witnesses. The defence was also adduced on this plea. In these circumstances, the
Court held that it was open to the Court to consider the plea of self-defence if the
same arose from the material on record. Similarly the Gauhati High Court allowed the
right of self-defence to the accused in Smt. Sandhya -Rani Bardhan v. The State,250
though she had pleaded alibi in the case. The Court added that if the right of private
defence is made out from the evidence on record, the benefit should be granted to the
accused, In the Court’s view the plea of alibi does not preclude it from extending the
benefit of self-defence to the accused, if the same is evident from the material on
record. In the same year, the Rajasthan High Court in Karnail Singh v. State of
Rajasthan,251 reiterated the similar view and observed that if -there is sufficient
material on the record to show that the accused had acted in the right of self- defence,
he could not be deprived of its benefit even though he had set-up the plea of alibi.

248
AIR 1961 Mys. 74
249
AIR 1970 All. 51 at 66
250
(1977) CrLJ NOC 245 (Gauhati)
251
(1977) CrLJ 1729 (Raj)

91
 The Supreme Court was also invited to decide this issue in Gottipulla Venkata
Siva Subraiaanyam v. State of A.P.252, wherein the Court held that the accused may be
given the benefit of right of private defence, even though he pleaded alibi. The Court
added that if on proper appraisal of the evidence and other relevant material on record,
the Court is convinced that the accused might have acted in self-defence, he may,
undoubtedly be given the benefit of it, in spite of his pleading alibi.

Thus, it is evident that the Court is competent to give the benefit of the right of
self-defence to the accused, if it is satisfied on the basis of material brought on record
that the accused might have used the force in self-defence, though he pleads alibi. It is
difficult to support decisions of the Supreme Court that the question of private
defence can be gone into even if the accused has not taken such a plea or he has takes
an inconsistent plea like the plea of alibi. He should not be granted a free licence to-
tell lies. It is also true that theoretically the burden of proof squarely lies on the
prosecution and the prosecution has to prove all the facts that may lead to the
conclusion of the guilt of the accused. But a pragmatic approach requires that equal
stress cannot be laid by the prosecution on all the constituent facts. One has to pay
attention to the plea of the accused.

Dr. Gour in his commentary on the Penal Code says 253:

“The true rule appears to be that where a certain intention or knowledge is a part of
the definition of an offence it is on the prosecution to prove it and in proving it facts
have to be necessarily ascertained upon which the accused is entitled to rely for
disproof or mitigation of his offence no less than for proving his non-liability. In such
a case the question is not one of burden of proof at all, but rather a question of what
offence the evidence discloses. But where the proof of the offence is complete and
independent evidence is required to disprove the offence then the question of onus
becomes material. Even in that case the accused may, by cross-examination of the
prosecution witnesses or otherwise, establish his exceptional immunity from the
crime, and if facts are all there, there is no question of surprise or unfairness to either
side the Court will permit the accused to establish his no liability on the facts

252
AIR 1970 SC 1079
253
Hari Singh Gour, The Penal Laws of India, Vol.l, (1966), p. 624

92
appearing on record. But where the evidence is clear and unequivocal he cannot be
permitted to take line inconsistent with his previous defence and argue for his
innocence on hypothetical grounds. He cannot persuade the Court to assume facts
which he never pleaded, and the pleading of which would necessitate the calling in of
new evidence”.

The law should clearly provide for that the Courts would take into
consideration only that defence which has been said by the accused and the accused
should not have the occasion for parallel inconsistent defences.

3.3.4 WHEN THERE IS A GAP BETWEEN THE ATTACK AND COUNTER

ATTACK

Where there was a gap between the attack on the accused and the counter-
attack made on other party and the accused did not permit the injured persons of the
other party to be taken to the dispensary for treatment, the accused persons were not
found entitled to any right of Private Defence.254

So, the Indian Penal Code does not specifically lay down the situations in
which right of Private Defence can be exercised. However, under Section 101, the
right of Private Defence of body is available against offences which are not covered
by Section 100 to the extent of causing harm of death. Similarly, under Section 104
the right of Private Defence of property is limited to causing to the wrong -doer any
harm other than death. Sections 100 and 103 specify the offences against which even
death may be caused in exercise of the right of Private Defence. Thus, legislature,
failed to specify the situations in which the right can be used. In the Courts have been
called upon to determine in each case whether the right of Private Defence can be
used or not.

A survey of decided cases reveals the following pattern of particular facts

situation in which the plea of Private Defence may be upheld:

254
Kanhiyalal v. State of Rajasthan, 1989 CrLJ 1482 (SC)

93
3.4 PARTICULAR FACTUAL SITUATIONS WHERE THE RIGHT OF
PRIVATE DEFENCE OF BODY ARISES

3.4.1 REASONABLE APPREHENSION OF DANGER TO BODY

Broadly stated, the right of Private Defence rests on three ideas: Firstly, that
there must be no more harm inflicted than is necessary for the purpose of defence;
secondly, that there must be reasonable apprehension of danger to the body from the
attempt or threat to commit some offence and, thirdly the right does not commence
until there is a reasonable apprehension.255 As Bentham said “It is a noble moment of
the heart, that indignation which kindles at the sight of the feeble injured by the
strong. It is a noble movement which makes us forgets our danger at the first cry of
distress….. It concerns the public safety that every honest man should consider
himself as the natural protector of every other.”

Sections 100 to 101 define the extent of the right of private defence of body. If
a person has a right to private defence of body under Section 97, that right extends
under Section 100 to causing death if there is reasonable apprehension that death or
grievous hurt would be the consequence of the assault.256

In order that an act may be pleaded as justified by the right of Private Defence
there must be an offence committed or attempted to be committed. The question of the
accrual of the right of Private Defence to a person does not depend upon an injury
being caused to him. If the facts and circumstances of a particular case indicate that,
placed as the accused was, he could have had a reasonable apprehension in his mind
of a grievous injury being caused to him, and then the right Self- Defence was
available to him.257 It is not necessary that there should be an actual commission of
the offence in order to give rise to the right of Private Defence. It is enough if the
accused apprehends that such an offence is contemplated and that it is likely to be
committed if the right of Private Defence is not exercised.258 The right of Private
Defence would become nugatory if it were to be exercised after the commission of an

255
Dominic Varkey v. State of Kerela, AIR (1978) CrLJ 578
256
Brij Lal v. State of Rajasthan, (SC) 2016 AIR (SC) 3875
257
State of U.P. v. Jagdish Puttoo Lal, AIR (1966) All. 244 at p. 247
258
Pagla Baba v. State, AIR. (1957) Orissa 130 at p. 150

94
offence. Decided cases suggest that there is a reasonable apprehension of danger if- (i)
the force was used in communal riot causing death of the assailant and (ii) harm gives
rise to a, reasonable apprehension of grievous injury or death even where the injuries
inflicted-by the aggressor are not fatal. In Amjad Khan v. The State259, a communal
riot broke out it in Katni between some Sindhi refugee residents and the local
Muslims. The shops of the accused and- his brother were very near to each other.
Their residences were also close by. The mob approached the accused’s locality and
looted the shop of the accused’s brother. On hearing the alarming news through is
mother and finding the crowd beating the doors of the accused’s shop with their at
this, the accused fired at thus crowd through whole in the wall of his dwelling house
near the shop which resulted in the death of one Sindhi and injury to three other Sind
his as well. On these facts the Supreme Court held that the accused had reasonable
grounds for apprehending that either death or grievous hurt would be caused to
himself or his family. The circumstances in which he was placed were quite sufficient
to give him a right of Private Defence of the body even to the extent of causing death.

The aforesaid view was followed in Deo Narain v. Stateof U.P.,260 In this case
in the exercise of right .of Private Defence accused had speared the invader who had
used a lathi. The Court decided against the accused in view of the simple weapon, the
lathi and non-fatal nature of injury already inflicted by the invader. On appeal, the
Supreme Court reversed the judgment of the High Court and held that if the harm
gives a reasonable apprehension of grievous injury or death, the person is justified in
causing death even where the injury or death, the person is justified in causing death
even where the injuries inflicted by the invader are not of fatal type. The Punjab and
Haryana High Court in Dharamvir Singh v. State,261 observed that whether a person
claiming right of Private Defence of body had any reasonable apprehension of danger
or not, depends on the state of his mind and also the situation in which he had been
placed at the relevant time and no one can say that what passing in his mind at that
time.

259
AIR (1952) SC 165
260
1973 CrLJ 677
261
1975 CrLJ 132

95
 Where accused is an aggressor he cannot claim any right of Private Defence of
person or property.262

3.4.2 RESISTANCE TO AN ILLEGAL SEARCH OR ARREST

An illegal arrest or search or seizure will be an offence. A person is fully

justified in resisting an illegal search or illegal arrest. Such resistance will be one in
the exercise of the right of Private Defence.263 Where the villages tried to rescue a
person illegally arrested by the police and attacked the police only after one of them
fired three shots one after another, the villagers could be said to have acted in the
exercise of the right of Private Defence.264

3.5 PARTICULAR FACTUAL SITUATIONS WHERE THE RIGHT OF

PRIVATE DEFENCE OF BODY DOES NOT ARISES

3.5.1 SUDDEN FIGHT

In Russell on Crimes,265 the law on the subject is stated thus:

“…. Where a man was assaulted in the course of such sudden brawl or quarrel
he might, under certain conditions, protect himself by killing his assailant and rely
upon the excuse of Self- Defence and thus reduce his offence from murder to
homicide which only involved forfeiture. The conditions were that he must show,
first, that before a mortal stroke (was) given he had declined further combat; and
secondly, that he then killed his adversary through necessity in order to avoid his own
immediate death.” “In all cases of homicide excusable by Self- Defence or chance
medley it must be taken that the fatal blow was struck upon a sudden occasion, and
not premeditated, or with malice, and from the doctrine which has been above laid
down it appears that the law required that the person who killed another should have
retreated as far as he conveniently or safely could, to avoid the violence of the assault,
before he turned upon his assailant and that not fictitiously or in order to watch his
opportunity, but from a real tenderness of shedding his brother’s blood.”

262
Majin Thomas George v. State of Madhya Pradesh, 1978 CrLJ. 578
263
1965 (2) CriLJ 843 ( 844, 856) (Punj)
264
State of U.P. v. Niyamat, AIR (1987) SC 1562
265 th
11 Ed., p. 514, 515, 516

96
 If some persons deliberately go to another with the intention of attacking him
that can never be a case of sudden fight. That would be a case where the latter would
be entitled to the right of Private Defence in order to ward off the attack on him by the
former. If two persons gather together at a place and some dispute suddenly arises, as
a result of which the parties attack each other or one person attacks another that would
be a case of sudden fight.266

Decided cases reveal that the right of Private Defence is not maintainable to
either party in sudden fight as it is difficult to ascertain the aggressor in such a
situation. In Paras Ram v. Rex,267 there was a sudden quarrel with regard to the
ownership of a cattle trough between the accused A on one hand and the deceased B
on the other hand. On 14th June, 1947 a quarrel ensued resulting in a fight.

Both were armed with lathis from before the start of the fight but there was no
evidence to show that the parties had made any pre- arranged plan of fighting out
dispute that day or had made any preparation to that end before the start of the fight.
The deceased B struck the first blow without A having assaulted him or having
threatened to assault him. A’s son C rushed to protect his father. The accused A and C
struck lathi blows on B resulting in the death of the latter. On these facts, the
Allahabad High Court held that it was not a case of two persons having come pre
determined to fight and measure strength, but was a case in which there were
bickering over a cattle trough and exchange of abuses. This conferred no right on the
deceases to attempt to strike the accused in the first instance and as such the counter
attack by the accused would be deemed in Self- Defence. It could not in the
circumstances be held that the accused A and his son C exercised any right of Self-
Defence.

Where there is spontaneous fight between two parties, each individual is

responsible for the injuries he causes himself and for the probable consequence of the
pursuit by his party of their common object. He cannot plead that because he might at

266
Statev. Koli Hira Bhaga, AIR (1961) Guj. 8, p. 11
267
AIR (1949) All. 274

97
any moment be struck by some member of the other party his own blows were given
in Self- Defence.268

3.5.2 FREE FIGHT

Free fight between two opponent groups, accused party claiming right of
private defence, normally the right of private defence is not available to either of the
parties in incidents of group fighting.269

A free fight is when two individuals or parties fight with one another using
unlawful force against each other. Both the sides mean to fight from the start. They
come armed with determination to measure their strength and to settle a dispute by
force. There is a pitched battle. A pre-plan fight between two parties may lead to an
interference that the object of neither party is to protect, but it is not necessary that a
pre-planned fight is always necessary to turn a ‘fight’ into a ‘free fight’. 270 In such a
case of free fight, both the parties are aggressors and none of them is entitled to claim
the right of Private Defence.271 An appropriate test for determining as to whether a
fight is a free fight or not is to see whether the parties voluntarily entered into fight
with mutual intent to harm each other. The question of who attacks and who defends
in such a fight is wholly immaterial.272 In a free fight, no right of Private Defence is
available to either party and each individual is responsible for his own acts.273 Since
there is either common intention or common object in a free fight, an accused cannot
be punished for having recourse to section- 149 of the Indian Penal Code. Each
individual is responsible for his own acts.274 However, if, judging by the number of
injuries on the parties to a free fight, it is difficult to decide who were the aggressors
and who inflicted what blow on whom, all the accused deserve acquittal.275

268
In re Erasi Subba Reddi, AIR (1943) Mad. 492 at p. 493
269
Pathubha Govindji Rathod v. State of Gujarat (SC) 2015(2) Cri.CC 653
270
Kalu Ram v. Stateof Rajasthan, AIR (1965) Raj 74
271
Dwarka Prasad v. State of Uttar Pradesh, 1993 Supp 3 SCC 441
272
Gajanand v. State of Uttar Pradesh, AIR (1954) SC 695
273
Vishvas Aba Kurane v. State of Maharashtra, AIR (1978) SC 414
274
Rohtas & others v. State of Haryana, 1993 Cr L J 3303 (P & H)
275
Kanbi Nanji Virji v. State of Gujarat AIR (1970) SC 219

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 When the riot is predetermined on both sides there is no right of Private
Defence on the part of either of the parties.276 When there is a free fight between two
parties, which are armed and determined to fight, the members of each party are liable
for the offences committed by them unless any of the parties is protected by the right
of Private Defence. In a free fight no right of Private Defence is available to either
party and each individual is responsible for his own acts.277 In Kabiruddin v.
Emperor,278 their Lordships observed: “When both parties are armed and prepared for
battle and it is not shown that they were acting within the legal limits of right of
Private Defence, it does not matter who was the first to attack.”

Decided cases reveal that in free fight the plea of right of Private Defence is
not maintainable. In Re Erasi Subba Reddi, there was a riot in which six persons
participated. They gathered to fight and both parties’ sustained casualties. After an
exchange of strong abusive words, the deceased stooped down to pick up a stone,
whereupon the appellant threw a stone at the head of the deceased and caused fatal
injuries. Then, the co-accused number 2 struck the deceased on the right arm with a
stick which caused the deceased to fall down. Thereafter the other accused began to
throw stones on the complainant’s party and drove them away from the field of battle.
On these facts, the Madras High Court observed: Where there is a spontaneous fight
between two parties, each individual is responsible, for the injuries he causes himself
and for the probable consequences of the pursuit by his party of their common object.
He cannot plead that because he might at any moment be struck by some member of
the other party his own blows were given in Self- Defence. The Court accordingly
held that the conviction of the appellant was right as no one could plead the right of
Private Defence in a free fight.

In Jumman v. State of Punjab when Lakha Singh, Tara Singh and Sngha Singh
alongwith three prosecution witnesses reached the bridge of a water-course, the six
accused persons emerged out of a Khal which was then dry. Hazara had a gun in his
hand, Bansa had pistol, Sohani and Chanan carried spears. Darshu had a Kirpan and
Jumman carried a kattar. The accused’s party was in wait for their rivals to pass that

276
State v. Adwaita Behara, 1961 Orissa J.D. 26: 27 Cut.LT 367
277
Vishvas aba Kurane v. State of Maharashtra, AIR (1978) SC 414 at p. 419
278
ILR (1908) 35 Cal. 368

99
way. On seeing the prosecution party, the accused raised a lalkara that none should be
spared; whereupon Jumman and Sohani opened an attack on the deceased Lakha
Singh. Darshu attacked Tara Singh and Chanan invaded Sangha Singh. When Lakha
Singh fell down with injuries, Jumman launched attack on Sangha Singh and Sohani
attacked Tara Singh. Various injuries were inflicted on the victims by the assailants.
When the prosecution witnesses saw the three individuals being attacked and falling
down, they escaped to a nearby field. While they were escaping Bansa and Hazara
fired at them but shots were missed. Then they turned round and pounced upon the
firing party, and snatched the gun from Hazara and the pistol from Bansa. Seeing this,
the other four accused threatened to attack the witnesses, who ran away, and then the
accused retreated. After a while Lakha Singh, Tara Singh and Sangha died on the
spot. On these facts the Supreme Court held that where a mutual conflict develops and
there is no reliable evidence as to how it started and as to who the aggressor it will not
be correct to assume Private Defence for both sides. In Sajjan Das v. State, Sajjan
Das and his co-petitioner were on terms of enmity with prosecution witness Raghu
Majhi and his nephew Nanda Majhi, the deceased. The quarrel started 4 years ago
when they were both competing for the purchase of a piece of land. The land was
eventually purchased by Raghu Majhi. On 12.9.1961 there was a quarrel between
raghu Majhi on the one hand and the two petitioners on the other, because the
petitioners’ suspected that Raghu Majhi had thrown some weeds uprooted from his
land into the adjoining lands of the petitioners. Raghu Majhi conveyed a panchyat to
settle the dispute but the petitioners did not attend the panchyat. Troubles arose again
on 14.9.1961 between the parties. The two petitioners met Raghu Majhi and the
deceased Nanda when they were returning from the field after carrying out weeding
operation. Petitioner Khushna confronted them and asked them whether they had
thrown the weeds on his paddy fields as they did on 12.9.1961. Thereupon Raghu
Majhi said that they should see their fields first before charging him and Nanda had
committed such an act. This led to exchange of words. Khushna gave a blow on the
forehead of Raghu Majhi, which caused him a lacerated injury. SajjanDas was also
standing there with a stick. The deceased Nanda gave him (Sajjan das) a blow on his
head. Thereupon Sajjan gave a terrible blow with his lathi on Nanda who immediately
fell down with his skull fractured. Nanda was again beaten and became unconscious

100
and died on the next day when he was being taken to hospital by boat. On these facts,
the Orissa High Court observed that once a party to a fight is held to be an aggressor,
it is immaterial as to who gave the first blow. The other party would be justified in
taking such measures as may be necessary to prevent further attack on that party and
merely because one of those parts retaliated after the first blow had been given by the
accused’s party, the latter cannot claim any right of Private Defence. The Court
accordingly dismissed the revision petition. It is evident from the above that the right
of Private Defence was not available to any party in free fight, as it is difficult to
decide as to who was aggressor and who was defendant in such a situation.

3.5.3 TIME TO RECOURSE TO PUBLIC AUTHORITIES

In cases where there is no urgency and danger is not imminent and effective
help can be secured by having recourse to the protection of the public authorities,
there is no right of Private Defence. Where however, there is a sudden attack upon a
person it is not expected that he should submit aggression but he can retaliate and use
reasonable force to avert the danger. The question whether mere physical presence of
the public authorities at the place of occurrence in all cases would deprive a person of
his right of Private Defence. The principle underlying the restriction on right of
Private Defence is that people should not take the law in their own hands if they can
have recourse to public authorities for the adequate protection of their person and
property because it is the primary function of the Stateto protect the people from
unlawful aggression. But where the public authorities on account of their
incompetence, imbecility or any other such cause are unable to avert the danger to the
person and property of an individual, his right of Private Defence is not lost. It cannot,
therefore, be laid down as a general rule that a person is deprived of his right of
Private Defence simply because the public authorities are available at the scene of
occurrence. It has, therefore, to be seen in each case whether there was any actual
threat or not to the person of the individual when the other party or his companions
reached the place of occurrence. If the threat was still there and the individual could
reasonably apprehend that grievous injury was likely to be caused to him then he was
justified in protecting his person from further injuries by using force to the extent of
causing death. But if there was no danger to the person of the individual and is

101
assailants had run away from that place or effective protection could be had from the
public authorities, present there, in that case the individual would not have any right
of Private Defence.279

3.5.4 PRIVATE DEFENCE VERSUS PRIVATE DEFENCE

The right of Private Defence is available against an offence and therefore

when an act is done in exercise of right of Private Defence such act cannot give rise to
any right of Private Defence in favour of the aggressor in return. 280 This right of
Private Defence extends not to an aggressor to counter the acts of Self- Defence of the
victim by a counter attack and causes his death.281 Right of Private Defence is not
available when the accused has provoked an attack. Thus when the accused himself
goes with a gun to attack the victim and the victim in Self- Defence re-attacks; the
accused by killing him cannot plead right of Self- Defence.282 The right of Self-
Defence conferred by the law or prescribed by the law for an individual is a very
narrow and circumscribed right and can be taken advantage of only when the
circumstances fully justify the exercise of such a right. A man who goes and seeks an
attack on himself by his own threat and attack on another, an attack which is likely to
end in the death of that other, cannot claim such a right. 283 When the act is provoked
the intention to commit the act need not be proved.284 Where once it is held that the
incident relating to deaths of two persons is an integrated one, and cannot be divided
into parts, it follows that the same right of Private Defence that is available to the
accused in causing the death of one, person can also be available to him in respect of
the death of another person. It would be wrong to hold the right of Private Defence in
respect of one and not in respect of the other.285 A survey of decided cases suggests
that the right of Private Defence is available against an unlawful act and the act of
self-defence is a lawful act, so it is not available against it.

279
Dhoora v. State, 1963 Raj. L.W. 436 at p. 441,442
280
Munney Khan v. Stateof M.P., AIR 1971 SC 1491
281
Kishan v. Stateof M.P., 1974 Cr L J 324
282
Stateof U.P. v. Ram Swaroop, AIR (1974) SC 1570
283
Dhanno Khan v. State, AIR (1957) All. 317
284
Chaitan Bhuiya v. Stateof Orissa, 1978 CrLJ 1303
285
State of U.P. v. Ram Niranjan Singh, AIR. 1971 SC 1432 at p. 1439

102
3.5.5 RETALIATION FOR PAST INJURY

The right of Self- Defence is not available to a person who resorts to

retaliation for past injuries, but to him who is suddenly confronted with immediate
necessity of averting an impending danger not of his creation. The necessity must be
real or apparent, before the antagonist can justifiably be deprived of his life.286
Inflicting blow in retaliation will not amount to the exercise of right of Private
Defence.287 The exercise of the right of Private Defence is not an offence in return.288
In considering the plea of Self- Defence not only is the manner of the defence to be
considered; the time also is important. If the person assaulted does not fall upon the
aggressor until the affray is over, or when he is running away, that is revenge and not
defence. Neither under the cover of Self- Defence the law permits a man to screen
himself from guilty of deliberate murder.289

3.5.6 AGAINST LAWFUL ACTS

In order to repeal unlawful aggression, the right of Private Defence can be

exercised. The right of Private Defence cannot be exercised when a person is carrying
out a lawful act. In fact, preventing a person from doing a lawful act would itself
amount to an offence. In Kanwar Singh v. Delhi Administration,290 a raiding party
possessing authority under a section of the Delhi Municipal Corporation Act, seized
the stray cattle and inflicted injuries on the raiding party. Since, the raiding party was
carrying out a lawful act; it was justified in law to seize the cattle, no right of Private
Defence was available to the accused. Accordingly, he was convicted. Similarly, in
Ram Ratan v. State of Bihar,291 when a person seized cattle on the ground that they
were trespassing on his land and causing damage to the crop and took them to the
pound, it was held by the Supreme Court that he was not committing theft and hence
when he was attacked by the owners of the cattle who obstructed him, the person had
the right of Self- Defence against the obstructers. The obstructing party could not

286
Balbir Singh v. State of Punjab, 1959 CrLJ 905
287
Subbanna Goundar v. Emperor, 1935 mad WN 1228
288
Gorieshankar v Sheikh Sultan, 1918 Low Bur 12 : 18 CrLJ 864
289 st
ARCHBOLD on Pleading, Evidence and Practice in Criminal Cases, 41 ed., Para 20-22, p.1406
290
AIR (1965) SC 871
291
AIR (1965) SC 926

103
have had any right of Private Defence and cannot rescue the cattle by force in as much
as the act of taking the cattle to the pound is not an offence.

Where the object of the accused was not to kill the deceased but to protect
their property and they acted in exercise of their right of Private Defence of property,
it cannot be said that they committed a criminal act in furtherance of a common
intention, because Section 96, Indian Penal Code makes it clear that nothing is an
offence which is done in the exercise of the right of Private Defence. The person
facing a reasonable apprehension of threat to him cannot be expected to modulate his
defence step by step with any arithmetical exactitude of only that much which is
required in the thinking of a man in ordinary times or under normal circumstances.
The fact of the case must show that threat to life or property or both of the accused
was not only imminent but did not cease, and it continued unabated. Not only there
were acts of vandalism but also destruction of property. In the circumstances the act
done by accused was in the reasonable limits of exercise of his right of Private
Defence and he was entitled to the protection afforded in law under section 96, Indian
Penal Code.

3.5.7 AGAINST UNARMED PERSON

The right of Private Defence does not exist in the situations where the
individual is unarmed and unoffending including the intervener. Under such a
circumstance, there would be no apprehension of danger from such a person and as
such there is no justification for exercising the right of defence under such a
circumstance. This is the general rule of law under such a situation. The Punjab and
Haryana High Court in Mukhtiar Singh v. State,292 clearly laid down that the
intervener who was armless and did not assault the accused, no right of Private
Defence was available against him. The Saurastra High Court in State v. Bhima
Deoraj,293 laid the similar ruling. In this case, the deceased entered the house to
outrage the modesty of the wife of the accused. He did something to express his
intention. The accused beat the deceased with sticks. He continued to beat him even
after he had fallen down. The Court held that after falling down, he could not continue

292
1971 CrLJ 1049
293
AIR (1956) Sau. 77

104
to trespass. Whatever intention he had at the time before entering the house that
disappeared, when he fell down. He remained on the premises, as he was physically
unable to get out. The Court ruled that as soon as the deceased fell down, he became
unoffending and consequently the right of Private Defence of the accused terminated.
Likewise, in Ramesh Chandra Sutradhar v. State,294 the Tripura High Court held that
the accused crossed the limits of the right of Private Defence, because he inflicted
blows on the deceased after he had fallen down on the ground and his weapon was
also wrested from him. Under such a situation, he had no right of self-defence against
the deceased. The Supreme Court in Gurbachan Singh v. State of Haryana295
observed that no right of Private Defence as the assault was continued even after the
deceased persons had fallen down on the ground and become inactive. The Court
further added that the right of Private Defence was not available to the accused
because his party had come prepared to teach a lesson to the deceased for having
raised a dispute in respect on land about which they had hinted even about a month
ago. It was the accused party who assaulted and caused multiple injuries and death of
three persons. The Court also observed that in view of the motive of the accused,
manner of assault, the nature of injuries inflicted, there is no justification in granting
the right of Private Defence to the accused. However, there may be situation when the
right of Private Defence accurse even against an unarmed person. For instance, the
Gujarat High Court in Baburao Vithal Survade v. State of Gujarat,296 held that there is
nothing in the law of Private Defence to suggest that the right of Private Defence of
body cannot be claimed against an assailant who is not armed with some sort of
weapon. The Court observed: Looking to the plain language of Section 100 of the
Indian Penal Code, it appears that the question whether a person has a right of Private
Defence in a given case depends on the manner in and the ferocity with which he is
attacked and the apprehension in his mind resulting from such an attack and not on the
question whether he was armed or otherwise. If in view of the manner of attack, he
has a genuine apprehension that the person assaulting him would either cause his
death or grievous hurt to him, he would be justified in causing death of his assailant in
exercise of the right of Private Defence irrespective of the fact whether the assailant

294
AIR (1969) Tripura 53
295
AIR (1974) SC 496
296
1972 CrLJ 1574

105
was armed or not. Thus, under exceptional circumstances the right of Private Defence
may be available even against unarmed person. It is submitted that the current
thinking about the striking of the first blow and falling down on the ground of the
victim (who has not died) does not led to reasonable apprehension in the mind of the
accused that the danger to his life still continues is full of danger to the life of the
accused and is impracticable. It is far from reality. A hurt beast or serpentine is more
dangerous and revengeful than the ordinary beast or serpentine. On the same
principle, if the victim intended to cause the death of the accused and the accused
struck a blow and the victim fell down, the reasonable apprehension of death or
grievous hurt from the victim to the accused does not come to an end. It is evident
from the foregoing discussion that the one who has courted the attack is not entitled to
the benefit of self-defence. Where it is difficult to ascertain as to who the aggressor
was and who the defendant was in case of free fight and sudden fight, neither side is
given the benefit of Private Defence. Further, the right of Private Defence is not
available against unoffending and armless persons. It is available only in the
circumstances where there is reasonable apprehension of danger to the person or
property. This right arises only in the cases of unlawful attack and on violation of
legal right of an individual.

If those who were injured were unarmed then without more the said fact could
not rule out exercise of the right of Private Defence, extending even in a case where
the person who has resorted to the right of Private Defence was confronted by three
persons. The very superiority in numbers could in all probability have been construed
by the accused as an imminent danger to himself thus giving him the signal to act in
exercise of the right of Private Defence more in self protection than with the intent of
harming the others in those circumstances may have appeared to him like maranders
rather than people who had just come to make an enquiry.297

3.5.8 LAWFUL ASSEMBLY

When five or more persons come together to form an assembly, in order to

assert their right of Private Defence either in respect of their person, body or property,
such an assembly cannot be termed to be an unlawful assembly. But when these
297
Shivappa Laxman Savadi v. State, 1992 CrLJ 2845 at p. 2857.

106
persons use unlawful force (i.e. when they do not act in Self- Defence), they constitute
an unlawful assembly.298 Where both parties concerned assemble at a place with arms
apprehending opposition and confrontation and have come prepared to meet it, then
both parties are unlawful assemblies and the right of Self- Defence is not available to
either of them.299 When a few people have assembled to form an unlawful assembly
the object of which from the inception is unlawful, clearly the assembly is an
aggressor. No question of right of Private Defence arises in such a case. 300 To ward
off an impending attack by a faction, if other faction does assemble, the object is not
unlawful, nor the assembly is an unlawful assembly, even if a riot ensues in the
process, the latter party can invoke the right of Private Defence.301 Section 141, Indian
penal Code must be read with section 96 to 106, Indian Penal Code. Assembly whose
common object is to defend property by use of force within limits prescribed by law
cannot be designated as unlawful assembly.302 If the common object of an assembly
of five or more persons was not to do any act exceeding right of Private Defence but
one of the members exceeds that right, then that particular member alone will be
guilty of the offence committed by him. But, where it is not known which of the
members exceeded that right and there is no common intention to cause death, none of
the accused can be held guilty of the offence. If the assembly, which was in its
inception lawful, becomes aware that the right is being exceeded, by some members
of the assembly and continues to aid and abet those who exceed the right, then the
assembly will become an unlawful assembly and cannot claim right of Private
Defence.

3.6 APPRAISAL:

The Indian Penal Code does not specifically lay down the situations in which
right of Private Defence can be exercised. However, under Section 101, the right of
Private Defence of body is available against offences which are not covered by
Section 100 to the extent of causing harm of death. Similarly, under Section 104 the
right of Private Defence of property is limited to causing to the wrong -doer any harm

298
Kartar Singh v. State of Punjab, AIR (1961) SC 1987
299
Sikhar Behera v. State, 1982 CrLJ 1167 (Ori) (DB)
300
Muhammad Ebrahim v. Emperor, AIR (1929) Nag 43
301
Ajodhia Prosad v. Emperor, AIR (1925) All 664
302
State of Bihar v. Nathu Pandey, AIR (1970) SC 27

107
other than death. Sections 100 and 103 specify the offences against which even death
may be caused in exercise of the right of Private Defence. Thus, legislature, failed to
specify the situations in which the right can be used. In the Courts have been called
upon to determine in each case whether the right of Private Defence can be used or
not.

A question, therefore, arises as to when the plea of Private Defence to person

and property maintainable?
The doctrine of Private Defence is founded on the following expediencies:
(i) A person, whose life is threatened by a grave danger, need not wait for the
State aid, unless such aid is available.
(ii) The right of Private Defence is protective or preventive and not punitive
(i.e. not meant for punishing); however, punitive measures may result.
(iii) The right cannot be available for the sake of self-gratification. The act of
Private Defence should not be deliberate, or retaliation for past injury.
(iv) The right must be exercised when there is real and immediate threat, not
imaginary and remote; and a reasonable apprehension of such threat. A
fear that one might or will be attacked in near future will not do.
(v) The protective measures employed must be relative to the danger ahead,
i.e. violence used must be proportionate to the injury or threat to be
averted, and must not exceed such limits.
(vi) The right of defence ends with the necessity for it. Thus, the person
exercising such right need not chase the fleeing attacker and then beat
him.303
(vii) The law does not require that a person placed in such circumstances
should weigh the arguments for and against an attack ‘in golden scales’.
(viii) The “aggressor”, one who goes to beat other, cannot claim the right to
Self- Defence.304
(ix) There cannot be a Private Defence against Private Defence. There is no
right of Private Defence under the code against any act which is not in
itself an offence under it.

303
State of U.P. v. Ram Swarup, AIR (1974) SC 1570
304
Deo Narain v. State of U.P., AIR (1973) SC 473

108
 (x) In case of free fight, no right of Private Defence is available to either
party.
(xi) Even if an accused does not plead Self- Defence, it is open to the court to
consider such plea if the same arises from material on record.

3.7 STATUTORY PROVSIONS IN RELATION TO RIGHT TO PRIVATE

DEFENCE OF BODY
3.7.1 INTRODUCTION
Section 97, I.P.C lays down the rule as Section 99; I.P.C lays down the
exceptions to which the rule is subject. Section 97, I.P.C defines the extent of the
right, as Section 99, I.P.C prescribes its limits. Section 97, I.P.C lays down what a
person may do; Section 99, I.P.C lays down what he is forbidden to do. The two
sections are thus complementary to each other, and together contain a complete
enunciation of the rule. Section 97, I.P.C broadly specifies the offences against which
the right of Private Defence can be exercised. The first clause of this section provides
for the defence of body “against any offence” affecting the human body. The second
provides for the defence of property against an act which amounts to the commission
of “certain offences”. Explaining the scope of section 97, I.P.C so far as right of
Private Defence of body is concerned the Supreme Court held the code excepts from
the operation of its penal clauses large classes of acts done in good faith for the
purpose of repelling unlawful aggression but this right has been regulated and
circumscribed by several principles and limitations. The striking feature of this
provision is that right of Private Defence extends not only to the defence on one’s
own body against any offence affecting the human body but also to defending the
body of any other person. The right also embraces the protection the protection of
property, whether one’s own or of another person against theft, robbery, mischief and
criminal trespass. But this right is subject to limitation in Section 99, I.P.C.

Can we defend the person and property of others in the exercise of this right?
It may be pointed out that the right to protect the person and property of others is

109
equally important as the right to protect one’s person or property. Governor
Crittenden305 said:

“Am I to protect my person merely to stand by and see my child, my wife, my

property, my helpless ones destroyed or taken and resent not the injury? No, no! The
law never was so narrow as that…… If I had no greater right than that I would raise
my own wild hand and take my life and hurt it back in the face of my Maker as a
thankless gift.”

So also Bentham306 observed:

“Can we defend nobody but ourselves? Ought we to not have the right of
protecting our fellows against an unjust aggression? Surely, it is a noble movement of
the heart that indignation which kindles at the sight of the feeble injured by the strong.
It is a noble movement which makes us forgets our own danger at the first cry of
distress. The law ought to beware how it enfeebles this generous alliance between
courage and humanity. Let him rather be honoured and rewarded who performs the
function of the magistrate in favour of the oppressed. It concerns the public safety that
every honest man should consider himself as the natural protector of every other.”

The use of the words “offences affecting the human body” both in Section 97,
which gives the right of Private Defence, and in the beginning of chapter XVI of the
Indian Penal Code makes it clear that the right of Private Defence of person arises in
favour of a person in cases when any of the offences mentioned in Sections 299 to
Section 377 is contemplated to be committed against the person who seeks to exercise
that right.307

The right of Private Defence arises only against acts which constitute an
offence except in certain specified circumstances. It does not arise merely because an
act is unlawful of wrongful. The act must amount to an offence of a particular kind. In
the case of defence of person the offence must be one against the human body. In the
case of defence of property the offence must be theft or robbery or mischief or

305
J.Donovan, Tact in Court, p.160
306
Principles of Penal Code, P. 269-270
307
Ram Saiya v. Emperor, AIR (1948) All. 205 P.208

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criminal trespass or an attempt to commit such offences or aggravated forms of these
offences or their attempts. An act which may not be to one’s liking but is not
punishable under the provisions of the penal code will not give rise to a right of
Private Defence. An act done in the exercise of Private Defence is not an offence.
Against such an act there is no right of Private Defence. A reasonable apprehension of
death or grievous hurt is enough to give rise to the right of Private Defence. It is not
necessary that the apprehension must have materialized.

As per Section 40 Para I, the word “offence” denotes a “thing” made

punishable by Indian Penal Code but except in the chapters and sections mentioned in
clauses 2 & 3 of this section. Here the word “thing” means consequence of an act. So,
a consequence of an act, i.e., thing, if it is made punishable by Indian Penal Code then
that thing is an offence, but this is subject to clauses 2 & 3 of Section 40 itself.
Section 40 Para I itself declares that the definition of offence given in Para I itself, is
not confined to Indian Penal Code only, rather it is applicable to special and local
laws also. Under Section 40 (2) it is stated that in chapter IV, the word “offence”
denotes a “thing” punishable under Indian Penal Code or under any special or local
law as hereinbefore defined. Chapter IV is related to General Exceptions which
includes the doctrine of right of Private Defence. So, the word “offence” which is
used under section 97 is not confined to Indian Penal Code only but it extends to
special law and local laws, which means that every person has a right of Private
Defence against an offence which is defined under Indian Penal Code or Special law
or Local laws subject to limitations provided under section 99 read along with
sections 100,101 and 102 in case of body and Section 99 read along with Sections
103,104 and 105 in case of property.

In order to ascertain whether the right of Private Defence is available to a

person, the entire incident must be examined with care and viewed in its proper
setting. The injuries received by the person, the imminence of threat to his safety, the
injuries caused by the accused and the circumstances of whether the person had time
to have recourse to public authorities are all relevant factors to be considered on a plea
of Private Defence.

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3.7.2 MEANING OF PHRASE “EVERY PERSON HAS A RIGHT TO
DEFEND”

Every human being first loves his body. Section 97, I.P.C. gives every man
the right to use necessary force against an assailant and to cause harm for the purpose
of protecting his own body. At the same time, a man owes a duty to society to protect
person of others. It concerns the public safety that every honest man should consider
himself as the natural protector of every other. Under section 97, I.P.C., the right of
Self- Defence extends not only to the defence of one’s own body against any offence
affecting the human body but also to defending the body of any other person. The
term ‘any other person’ signifies that any person against whom the aggressor attacks.
These words show that the assailant has right to protect any other person, on whom he
has interest. The law wants the people should enjoy their own property without
obstructions. Every person in possession of land is entitled to defend his possession
against anyone who tried to eject by force, or to steal from it; or to do an act which
will have the effect of causing injury to it. Where the accused had no right, title,
interest or possession of the land in issue, right of Private Defence of property did not
vest in him.

3.7.2.1 DISTINCTION BETWEEN ENFORCING A RIGHT AND

MAINTAINING A RIGHT

At first there may appear to be some confusion between the right of Private
Defence of property as set out in sections 96 and 105, I.P.C. and the provisions of
section 141 (fourthly) of the same code which makes it an offence to “enforce any
right”. A party cannot be said “to enforce any right” where he is in undoubted
possession of the land upon which an attack has been made and he defends that
possession. In that case the right of Private Defence of property would arise. If on the
other hand there was a real doubt whether the land belonged to one party or the other,
then if either party used force, that would amount to enforcing a right and there would
be no right of Private Defence of property. What indeed that law prohibits is the
enforcement of a right or supposed right by criminal force or show of criminal force
by an assembly of five or more persons. And rights, the defence of which can only be
effected by enforcing them, may come within the provisions of sections 141, I.P.C.

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The phrase “to enforce a right” can only apply when the party claiming the right has
no possession over the subject of the right and therein lays the distinction between
“enforcing a right” and “maintaining a right”. A party in possession is entitled to resist
and repel and aggression and his action in doing would be in the maintenance of his
right.308 The right exists to defend his and other’s body and property by use of force.
The “body of any other person” who may be a perfect stranger. But what force is
justified? That depends upon the circumstances of each case. The amount of violence
necessary to repeal the aggression of one person will not be the same as is necessary
to repeal an armed band of twenty.

3.7.3 RESTRICTIONS UNDER SECTION 99 OF I.P.C, 1860

The exercise of the right of Private Defence is itself subject to the restrictions
mentioned in Section 99, I.P.C., which prescribe that the right of the Private Defence
in no case extends to the inflicting of more harm than is necessary to inflict for the
purpose of defence.309 Section 97 is as the section itself provides, subject to the
restrictions enacted in section 99. Both sections 97 and 99 are subject to the
subsequent sections of Chapter IV of I.P.C. The right given under sections 96 to 98
and Sections 100 to 106 is controlled by Sections 99, I.P.C.

3.7.4 PREPARATION AND USE OF WEAPONS FOR PRIVATE DEFENCE

The Indian Penal Code puts no restriction either upon the weapon, or upon the
mode of using it, in those particular cases in which it provided that the voluntary
causing of death is justified when acting in exercise of the right of Private Defence of
the body, but of course, all the circumstances of the case must be considered
together.310 Where a person receives information of an intended attack on his person
or property, there is nothing wrong in his getting ready with weapon and men for the
purpose of defence against the attack.311

308
Ganouri Lal Das v. Queen-Empress, ILR 16 Cal. 296
309
Bhagirathi Burhia v. State, AIR (1965) Orissa 99 at p. 101
310
Nga Chit Tin v. king, AIR (1939) Rang. 225 at p. 239
311
AIR (1954) Punj 232 (234, 235)

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There is no restriction as to the weapons used or the mode of using it when exercising
Private Defence. The circumstances in each case must be considered. 312 When an
assailant is using a particular weapon, the use of similar weapons in Private Defence
cannot be said to be exceeding the right of Private Defence.313 Where one L stood
before a jeep driven by A for preventing it from moving and A drove the jeep over L
causing injuries, held it was atrocious for anybody to think of using a motor car as a
weapon for the exercise of Self- Defence, and that A had exceeded his right if any
existed.314 The fact that the prosecution witnesses were not armed with dangerous
weapons is no ground for finding that the accused could not have had apprehension of
death or grievous hurt. Death and grievous hurt can be caused without the aid of
dangerous weapons. The dangerous situation in which the accused was placed and not
the use of dangerous weapons is the deciding factor.315 If A sees B invading his right
to property, it is lawful for him to go to the spot and object to the invasion. It is also
lawful for him to take “Suitable Weapon” if the opposite party is armed.316 But all the
above, in India it is not permissible to acquire illegal weapons in cases of urgency for
the sake of private defence of either body or property because in India The Arms Act,
1959 makes the acquiring the illegal as well as the prohibited weapons an offence,
even for the sake of private defence.

3.7.5 PRIVATE DEFENCE BY PUBLIC SERVANT

A police officer went out to apprehend a proclaimed offender whose name was
piare. Misguided by inaccurate information this police officer accidently pursued
another man whose name was Iso. Iso was following his lawful occupation on the
king’s highway when he became aware that he was being pursued by an armed and
mounted man. Iso belonged to a fighting tribe and he happened to have hatchet in his
hand. He stood on guard and showed a bold front. Flourishing his hatchet in the air he
shouted to purser to keep his distance or it would be the worse for him.

312
1960 Ker LT 207 (212) (DB)
313
AIR (1933) All 401 (403)
314
1958 CriL.J 33 (DB)
315
1972 CriL.J 1574 (1577)
316
1959 CriL.J 71

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 The police constable believed himself to be face to face with dangerous
proclaimed offender. He had carbine in his hand. He attempted to shot over the head
of his antagonist. He gave his piece what he supposed to be necessary elevation but
the distance was so great that the dropping shot struck the man himself. The wound
was enough to infuriate but not enough to disable, Iso charged the constable who must
have been attempting to reload his carbine, pulled back his horse. And the blow which
Iso delivered struck the horse and the blow which Iso delivered struck the horse, not
the man. But by this time the constable had reloaded his weapon. It appears that
charge must have carried him past the man on horseback. The constable turned and
fired into the back of his assailant. The wound was fatal. The question was: what was
the legal liability of the man who fired the fatal shot. It was held that the police officer
had a right of Private Defence even to the causing of death.

The pursuing party consisting of 60 to 70 persons was fully armed with

kulharis and kirpans, etc. They were all brandishing their weapons. Waryam Singh
was ahead of the party and was armed with kulhari. On reaching the accused the
pursuit party surrounded them. Darshan Singh was attacked and was injured with
sharp-edged weapons and was killed on the spot. The accused Kartar Singh was found
to have received eight injuries when he was arrested. It was held that in the
circumstances it could not be said that the accused Kartar Singh did not have
reasonable apprehension that he was likely to be killed by the members of the pursuit
party. He was therefore justified in defending himself. He gave only one blow with
his spear which unfortunately proved fatal. In the circumstances it could be said that
the accused exceeded their right of Private Defence.317 The accused has clearly stated
that when his wife was killed, his attention has drawn as the baby cried and when he
run away to spot proceeded towards him to kill him. He caught hold of the tangia, but
the stick which he was holding for driving the buffaloes felt down and deceased
picked up that stick and assaulted him. So he brandished the tangia in order to save his
life and in the process deceased was killed. Taking into consideration the accused

317
Bahadur Singh v. State of Punjab, 1992 (4) SCC 503, p. 506

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statement, as a whole, there is no other alternative than to hold that the accused is
entitled to the right of Private Defence.318

3.7.6 RIGHT OF PRIVATE DEFENCE AGAINST ACTS OF LUNATICS,

INTOXICATED PERSONS

The right of Private Defence would have lost most of its value if it was not
allowed to be exercised against persons suffering from the incapacities mentioned in
this section. Section 98 ensures that a person does not lose the right of defence of
property merely because the opposite party is under misapprehension.319 Section 98
assumes that the right of Private Defence from its very nature admits no exception
since it is the right of preservation of one’s life and property as also of another’s life
and property against the world at large. This section provides that the right of Private
Defence extends even against an offence committed by a person who might not be
responsible in law for his deeds by reason of the doer being a man of unsound mind
(section 84), or because of want of maturity of understanding (section 82, 83), or by
reason of any misconception on the part of that person (section 76, 79). It ensures that
a person does not lose his right of Private Defence merely because the opposite party
is legally incompetent to commit an offence and is protected because of legal
abnormality.320 The illustrations to the section are self- explanatory.

3.7.7 RIGHT OF PRIVATE DEFENCE EXTENDS TO THE CAUSING OF

UNAVOIDABLE HARM TO INNOCENT PERSONS

Section 106, I.P.C, provides that when there is a deadly assault on a person
which causes a reasonable apprehension of death and his right of Private Defence
cannot be effectively exercised without causing harm to an innocent person, then in
such situations, any harm caused to innocent persons is also protected by law. In other
words, in the exercise of the right of Private Defence, if, some innocent person is
killed or injured, law protects the man exercising the right of Private Defence by
exempting him from criminal liability. The illustration to the section is self-

318
In Re Harijana Dontalagadu, (1965) 2 CrLJ.440 at p. 442
319
Ram Prasad Ahir v. State of U.P., AIR 1959 All 790
320
Ibid.

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explanatory. In Wassan Singh v. State of Punjab,321 there was a fight between two
groups. The accused himself received nine injuries. He shot at the assailants with his
gun, which however, hit an innocent woman bystander, killing her. The Supreme
Court held that the accused had the right of Private Defence and hence he was
acquitted. Section 106 of the I.P.C. applies to a case of extremely necessity in which a
person is entitled to run the risk of harming innocent person in order to save him from
mortal injury.322 This section should be read in the light of section 100, I.P.C. It is in
accordance with English law. Injury to innocent persons in the exercise of the right of
defence is excusable under it.

321
(1996) CrLJ 878 SC
322
Lallan v. Stateof U.P., 1984 AllLJ 894

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