This section shows that the criminal law of our country recognises the fact that there can be certain situations wherein a person may have no other way-out except to cause even death while exercising right of private defence of body. These situations have been identified in the form of six clauses under this section.
The section clearly states at the outset that the six circumstances under which any harm extending to even death of the assailant may be voluntarily caused is subject to the general restrictions laid down by section 99 to the Code. The section gives to the defender the right to cause death or any other harm to the assailant voluntarily if any of the circumstances mentioned herein is present.
The words ‘voluntary causing’ used in the section has the same meaning as of ‘voluntarily’ given in section 39 of the Code. The six circumstances enumerated under this section wherein even death of the assailant may be caused in right of private defence of body are:
Firstly, where the assault on the part on the assailant may cause a reasonable apprehension of death in the mind of the defender. In other words, if the circumstances are such that the defender feels that if he does not cause the death of the assailant there is reasonable apprehension that he would cause his death, he has a right to cause death of the attacker. The word ‘assault’ used in this section has the same meaning as given in section 351 of the Code.
Secondly, if the defender has reasonable apprehension that the assault on the part of the attacker may result in grievous hurt, he has a right to cause his death. ‘Grievous hurt’ has been defined in section 320 of the Code.
Thirdly, where the assailant commits an assault with the intention of committing rape, the defender may cause his death. “Rape” has been defined in section 375 of the Code.
Fourthly, where the assailant commits an assault with the intention of gratifying unnatural lust, the defender has a right to cause his death. The crime of ‘unnatural offences’ having been defined under section 377 of the Code, the attacker’s assault must be proved to fall within the meaning of that section.
Fifthly, the defender has a right to cause death of the assailant where the assailant commits an assault with the intention of kidnapping or abducting. The offence of kidnapping has been described under sections 359, 360 and 361, and that of abduction under section 362 of the Code.
Sixthly, the right of private defence of body extends even to commit death of the assailant where he commits an assault with the intention of committing the offence of wrongful confinement under such circumstances as may cause a reasonable apprehension that he will not be able to have recourse to the public authorities for his release. The offence of wrongful confinement has been defined under section 340 of the Code.
It is important to recollect here that section 97 of the Code gives the right of private defence to everyone to defend his own body or property or the body or property of any other person. Consequently, the right under section 100 is exercisable by the person who is being attacked or by another person on his behalf.
Cases under the first clause
In Yogendra Morarji v. State, the Supreme Court through Sarkaria, J., discussed in detail the extent and the limitations of the right of private defence of body. One of the aspects emphasised by the Court was that there must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
This aspect has created quite a confusion in the law as it indirectly suggests that one should first try to see the possibility of a retreat than to defend by using force which is contrary to the principle that the law does not encourage cowardice on the part of one who is attacked.
This retreat theory in fact is an acceptance of the English common law principle of defence of body or property under which the common law Courts always insisted to look first as to whether the accused could prevent the commission of crime against him by retreating.
It seems that the case of Jaidev v. State was not cited in the Yogendra Morarji’s case. In that case Justice Gajendragadkar has specifically held in the Supreme Court that in India there is no such rule which expects a person first to run away or at least try to do so before he can exercise his right of private defence.
It seems that Jaidev’s decision is the correct exposition of the law. Glanville Williams also looks at the retreat part with contempt when he states that one would like to ask: if a person is attacked by an armed burglar in his own room, is he expected to run away leaving the burglar to act as he liked.
The retreat principle has now been abolished in England by section 3, Criminal Law Act, 1967. Since then there has been a large number of English (and American too) decisions wherein the retreat law has not been followed. This all the more strengthens the view that this rule should have no existence in India.
In Mohammed Khan v. State, factionalism developed in a village as a result to which one faction left and shifted to a new site of residence near the mosque. Both factions offered Idd prayers and while the faction still occupying the old village was returning after the prayers, it was waylaid by the other group which has shifted to the new site. Arms were used by both the factions resulting in death of a few and grievous hurt to some others.
The Supreme Court held that both the groups had a right to offer ldd prayers in the mosque and, therefore, when the residents of the old village were attacked on their return, they had a right to defend by using force which was not challenged as excessive.
In Sardari Lai v. Emp., the deceased caught hold of the testicles of the accused during the course of a quarrel and pressed them hard. The accused picked up a knife lying nearby and gave two blows by it killing the deceased. It was held that since pressing of testicles could lead to death of the accused, he had a right to kill the deceased by using reasonable force against him.
In Nabia Bai v. State, the deceased attacked the accused lady by a knife causing serious injuries. She managed to extricate herself and snatch the knife. She inflicted some wounds to save herself as a result of which he died. The Supreme Court held that she had acted in right of private defence.
In Laomi Kirsani v. State, the deceased was armed with an axe. He slapped a person. One of the accused snatched his axe and gave blows on him by it resulting in his death. The plea of private defence was rejected because once the axe was snatched away from him, there could not be any reasonable apprehension of death or grievous hurt justifying killing him.
In Jai Prakash v. Delhi Administration there was a hot exchange of words between the accused and the deceased as a result of which the accused stabbed the deceased to death. The Supreme Court observed that mere verbal exchanges, however, hot, do not justify killing as there is no reasonable apprehension of death, or for that matter no clause of section 100 of the Code can be applicable.
Ajit Singh v. Stated is a decision on an important aspect of private defence, viz, whether the starter of a quarrel or fight can claim this right. The facts were that the accused, armed with a spear, abused the deceased who was armed with a dang and in an excited mood. The deceased inflicted the first blow by the dang on the accused who gave one spear blow resulting in the death of the deceased.
The Punjab and Haryana High Court held that the accused had acted in his right of private defence. Even though the accused had started the quarrel first by abusing the deceased, this did not give the deceased the right to take the law in his hands. Consequently, if the deceased, being infuriated by the abuse, attacked the accused by the dang, the accused had the right to use reasonable force in his defence to ward off the attack. But in Kashmiri Lai v. State of Punjab, the Supreme Court ruled that right of private defence is not available to a person who himself is aggressor and unlawfully attacks another person.
In Mukhtiar Singh v. Stated it was held that the right of private defence in no case extends to killing an intervener who is without arms and who in no way has attempted to assault the accused or incited him.
Guljara Singh v. State, lays down two important principles. The Supreme Court has held in this case that the right of private defence arises not only against one who actually inflicts a blow but also against all members of an unlawful assembly which is engaged in doing the act in prosecution of common object of the unlawful assembly.
It was also emphasised by the Court that it is not necessary that the accused must plead this right always to warrant an acquittal. If the Court is satisfied that the circumstances of the case showed that the accused was exercising this right it does not matter at all whether he pleads this defence or not, and the Court must give him this benefit.
There seem to be at least two cogent reasons behind this principle. First, the primary duty of the Courts being to do justice, they must grant him this right once they are convinced that he had acted under this right. Secondly, what defence should be pleaded by the accused is decided by his lawyer who attempts to do what he thinks is best for his client, and an honest error of judgment on his part should in no case be allowed to seal the fate of the accused.
In Narayan Singh v. State of Haryana, the Supreme Court held that raising of plea of private defence is not necessary. If the circumstances point towards its legitimate use, the court can consider this. In the present case, the accused persons went armed with gun and jailies to plough the field of the deceased.
When the deceased tried to prevent them from sowing of jowar in the field the accused persons fired at and assaulted the deceased. The Supreme Court held that the accused were not entitled to private defence and were convicted under section 304, Part II. However, the punishment of imprisonment for ten years awarded by the High Court was reduced to seven years.
In Ranveer Singh v. State of Madhya Pradesh} the accused appellant and his son were thrashing the family members of the complainant. Hearing his shouts the complainant with many others reached the spot. The accused thereupon asked his son to bring gun. On exhortation given by the accused his son fired a shot which hit the sister of the complainant and proved fatal.
The Supreme Court held that the accused had exceeded his right of private defence and convicted them under section 304, Part I read with sections 109 and 34. The Court also stated that the specific plea of private defence need not be raised.
In Arun v. State of Maharashtra? and in Hanumantappa Bhimappa Dalavai v. State of Karnataka, the Supreme Court stated that it is not necessary for the accused to prove private defence and if circumstances are such as to show private defence, it is open for the court to consider private defence. The burden of accused stands discharged by showing preponderance of probabilities in favour of that plea. The appeal was dismissed as private defence was not proved.
In Dhiria Bhavji v. State, it has been held by the Gujarat High Court that an apprehension in the mind of the accused that the deceased might cause his death by witchcraft cannot be accepted as a reasonable apprehension within the meaning of this section because there has been no ‘assault’. Consequently, unless he apprehends physical violence from his opponent he cannot be held to have a right of private defence against’ him.
In Abdul Kadir v. Stated the accused persons were in possession of a piece of land on which they had grown paddy crop. The deceased persons along with some others reached their armed with some sharp cutting-instruments with a view to harvest the crop. On being resisted they inflicted serious injuries on vital parts of two of the accused persons.
This created a reasonable apprehension in their mind that they would be killed by the deceased party. They, therefore, defended by force with the weapons they had. The Supreme Court held that they had a right of private defence of body and property and were thus not liable.
In Ram Phal v. State, there was no prior enmity between two groups and the whole incident developed suddenly. The accused persons received many injuries some on vital parts also. The prosecution failed to explain these injuries. It was held that the plea that the accused had inflicted injuries on the deceased in private defence was quite probable.
Only one injury was inflicted by the accused on the head of the deceased who unfortunately succumbed. The accused could not be said to have exceeded right of private defence. Benefit of doubt was given to them.
In State of U.P. v. Roop Singh, the allegations were that the accused persons armed with sticks and lathis assaulted the deceased causing his death. The accused chased and killed one of the deceased who fled away from the scene of occurrence. It was held by the Supreme Court that they cannot have the right of private defence as regards the killing of such a deceased. Their acquittal was set aside and they were held guilty under sections 302/149 of the Code.
In Masilamani v. State of Tamilnadu} injury on the backside of the accused which could not be explained by the prosecution showed that the accused was chased by the deceased and deceased was the aggressor. This was supported by medical evidence which did not reveal any injury on the backside of the deceased. The evidence on record showed that the accused was in imminent danger of death and so he inflicted injuries on deceased in exercise of his right of private defence.
Further, non-examination of the investigating officer by the prosecution caused great prejudice to the accused. The Madras High Court held that in the circumstances the finding of the lower court that the accused exceeded private defence is not proper.
Cases under the second clause
In Janab Ali Shaikh v. State? the deceased attacked the accused by a ‘panchan’, a lathi like object which could cause only simple injury and not grievous injury. The accused resisted by a ‘faura’ (spade) and caused fracture of frontal bone of the deceased’s head resulting in his death. The Supreme Court held that the accused was not entitled to the right of private defence extending up to this extent.
In Raghavan Achari v. State, the accused found his wife in a compromising position with the deceased. He developed grave and sudden provocation by this incident. But the deceased attacked him and caused multiple injuries including grievous injury to the accused who thereafter caused death of the deceased by a chopper. Reversing the decision of the Kerala High Court the Supreme Court held that the accused was acting under his right of private defence under clause (2) of section 100 and was, therefore, not liable for the deceased’s death.
In Deo Narain v. State, the Supreme Court observed that when a vital part like the head is aimed to be hit by a blunt weapon like lathi, it creates a reasonable apprehension of grievous hurt or even death in the mind of the defender. Consequently, the use of spear by the defender may be held to be justified as he is not expected to weigh in golden scales the amount of force necessary to stop the aggression.
The Gauhati High Court has held in Madan Chandra Dutta v. State, that where the deceased first hit the accused by a heavy lathi and then attacked him by a dao causing an incised wound, he had already caused grievous bodily injury on the accused entitling him to use reasonable force even to the extent of causing his death and this right had already accrued as soon as there was a reasonable apprehension of impending grievous hurt in the mind of the accused.
In Onkarnath Singh v. State, the appellant has slapped two teenaged boys one of whom complained about it to his two cousins who confronted the first appellant in presence of his brother, the second appellant, and asked him as to why had he done so.
When the first appellant repeated that he would again do so, the first and the second appellants were pinned down on the ground by the two cousins. The cousin then left the place and within a short distance they were surrounded by the first two appellants armed with a gandasa and a spear respectively and three others armed with lathis.
The first appellant gave a gandasa blow on the head of one and the second a spear blow on the abdomen of the other cousin while the other three kept on inflicting lathi blows on them. The spear blow proved fatal. The Supreme Court rejected the plea of private defence itself and thus of exceeding the right of private defence under the second exception to section 300 of the Code saying that there was no apprehension from the two victims where they were surrounded and attacked. The reason of the attack seemed to be taking revenge and gratifying the hurt feelings when the first two appellants were first spoken to by the victims about the slapping incident and subsequently pinned by them on the ground.
In Bhawan Swaroop v. State, the father of the accused was being beaten by lathis by the complainant party. The accused fired from a gun to defend his father. It was held that he was acting under his right to private defence and the fact whether the injuries caused on his father by lathi blows were simple or grievous was not relevant.
Cases under the third clause
In Prakash Chandra v. State? some persons went into the house of the appellants in the night and started dragging out a married woman of about 25 years of age and causing her injuries with the intention of having sexual intercourse with her. The husband of the lady and other in-laws inflicted injuries on them by using force resulting into death of one of them.
It was held by the Rajasthan High Court that the appellants were entitled to the benefit of section 100 of the Indian Penal Code as they were exercising their right of private defence. Persons going at the odd hour of night to the house and dragging a married woman out are sufficient circumstances for her husband and other in-laws to have used reasonable force. Since the dragging was done with the intention of seducing her to sexual intercourse, it was clearly a case of atrocity on the weaker sex of the society according to the Court.
In State v. Nirupama Panda, the Orissa High Court held that the extra-judicial confession of the accused that she had stabbed the deceased because he outraged her modesty cannot be used as an incriminating piece of evidence against her because she had every right to save her honour even by causing death of the person who either committed rape on her or attempted to commit the same.
The Court went on to emphasise that after her widowhood the accused led an immoral life by living as a mistress of someone is of little consequence because even a whore is entitled under law to protect herself from attack of intending rapist. The Court acquitted her on the ground of private defence.
In Badan Nath v. State, the deceased committed assault on the daughter of the accused with the intention of raping her. The Rajasthan High Court held that the accused was entitled to the benefit of right of private defence of the person of his daughter.
Cases under the fifth clause
In Vishwanath v. State? a married woman whose relations with her husband were strained was residing with her brother, the accused. The requests of the husband that the wife must return to him were not complied with. On the day of the incident the husband alongwith some other, persons went to the home of the accused to bring back his wife. While his other companions waited outside, he went inside and started dragging his unwilling wife by hand.
The accused, who at that time was standing outside with the husband’s companions, became agitated. He pulled out a small knife from his pocket and inflicted one blow by it which fell on his heart as a result of which he died. It was held by the Supreme Court that since the deceased husband had committed an assault with the intention of abducting her, clause 5 of section 100 of the Code gave a right of private defence to the accused even to the extent of causing his death.
The Court was satisfied that since only one blow was inflicted, the condition under section 99 that no more harm than necessary for the purpose of defence should be caused was adhered to even though that single blow by falling on the heart caused the death.
While in the above discussed case a brother used force to prevent his sister from being abducted, in Nankau v. State, a paramour of a married woman, who left her husband and came to reside with him voluntarily, and his brother used force against her husband who assaulted her with a view to compel her by force to leave her paramour’s house and come with him.
It was held by the Allahabad High Court that since section 97 of the Code gave the right of private defence to everyone to intervene on anyone else’s behalf, the paramour and his brother were protected under clause 5 of section 100 for causing death of even the husband of the woman.
In Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Balkrishna, – the accused had eaten at a restaurant and ran away without making payment bill. He had beaten an employee of the restaurant also. When he was being chased and caught by the employees of the restaurant with the view to compel him to make the payment or to hand him over to the police for taking necessary action against him for assaulting an employee, he attacked an employee who was killed. On being prosecuted for the murder, he pleaded that he had a right of private defence to cause death as he was assaulted by the employees with the intention of abducting him.
The Andhra Pradesh High Court held that in a situation like this if an attempt is made by one to catch another for recovering his dues or for surrendering him to the police for having assaulted another, it does not constitute an act of assault with the intention of abducting and consequently there is no right of private defence under this clause.
In Nand Kishore Lai v. Emp. a Muslim married woman was abducted by certain Sikhs and converted to Sikhism. When after about a year her husband and some of his relatives came and demanded her return from the accused they rejected the demand and the woman too refused to go with him. When they attempted to take her by force, the accused party resisted by using force resulting in the death of one of the assailants. The Patna High Court allowed the plea of private defence.
Cases under the sixth clause
In Abdul Habib v. Stated the appellant was running hard to get away from the grasp of the pursuers. The deceased is alleged to have heard the pursuers shouting that the appellant should be caught with a view to be taken to the police station. When the deceased tried to get hold of the appellant with that intention, the appellant inflicted injuries on the back and abdomen of the deceased as a result of which he died.
The accused argued that since he was being assaulted with the intention of wrongfully confining him under circumstances which reasonably caused an apprehension that he would be unable to take recourse to public authorities for his release, he had a right of private defence to cause death. The Allahabad High Court held that clause 6 of section 100 did not apply as there was no such intention on the part of the deceased who was merely trying to restrain him with the intention of marching him to the police station.