TOPIC: GENERAL DEFENCE UNDER INDIAN PENAL CODE

CONTENTS

 Introduction
 Principles of criminal liability
 Actus reus
 Conduct
 Result of conduct
 Acts prohibited by law
 Mens rea
 General exceptions under the ipc
 Object of chapter iv
 The fabric of chapter iv
 Excusable acts
 A mistake of fact under section 76 and 79
 Accident under section 80
 Infancy – section 82 and 83
 Insanity – section 84
 Intoxication – section 85 and 86
 Justifiable acts
 Necessity under 81
 Consent under section 87 – 89 and section 92
 Communication under section 93
 Duress under section 94
 Trifles under section 95
 Private defence
 Nature of the right
 Private defence in the indian legal system
 Evolution of the right of private defence
 Conclusion
 Reference
 CASE LAWS

LIST OF CASE

 Laxman v. State of Orissa, 1988 Cri. LJ 188 SC

 Chacko v. State of Kerala, 2001 Cri. LJ 146 SC

 Queen v. FukeeraChamar,6 WR (Cr.) 50

 King Emperor v. Timmappa, 1928) 55 MLJ 351

 Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217, 1991 (39) BLJR 321,

1991 CriLJ 1283

 Ashiruddin Ahmed vs. State, 1949 CriLJ 255

 Bishambher v. Roomal, AIR 1951 All 500

 Poonai Fattemah v. Emp, (12 W.R., Crim. Rul., 7)

 R.P Dhanda V. Bhurelal, 1987 CriLJ 1316

 Jakir Ali v. State of Assam ,2007 CriLJ 1615, 2007 (3) GLT 497

 Mrs. Veeda Menezes v. Khan, 1966 AIR 1773, 1966 SCR 123
 Introduction

Criminal Law has two elements; mens rea and actus rea. Mens rea is a guilty mind
and actus rea is the guilty act. It has been derived from the Latin maxim, “actus non
facitreum nisi mens sit rea”. There is no criminal liability if any of these two elements
are absent. The General Exceptions take place in the absence of mens rea. Chapter
IV of the Indian Penal Code, 1860 provides for these. General exceptions can be
further classified into two types of defences; excusable and justified defences.

Excusable Defences

1. Mistake of fact (S. 76 & 79)

2. Accident (S. 80)

3. Infancy (S. 82 &83)

4. Insanity (S. 84)

5. Intoxication (S. 85 & 86)

Justified Defences

1. Judicial Acts (S. 77 & 78)

2. Necessity (S. 81)

3. Consent (S. 87-89 & 92)

4. Communication (S. 93)

5. Trifle Acts (S. 95)

6. Duress (S. 94)

7. Private Defence (S. 96- 106)

The defence of private defence has been provided under the Indian Penal Code,
1860 from S.96 to 106. The laws provided in these sections provide for defence
against a person and property. Hence, these provisions give the power to a person
to protect his own body and property. Body ay be of oneself or another likewise the
property might also be moveable or immovable of himself or another in cases of
theft, robbery, mischief or criminal trespass or an attempt to do so. However, there
are important limits on the right of private defence. Firstly, you cannot claim private
defence for an act which under any circumstances justify anything which was no
defence but an offence and secondly, the right cannot be claimed when you yourself
have initiated the attack.

Principles of Criminal Liability

Criminal guilt would attach to a man for violations of criminal law. However, the rule
is not absolute and is subject to limitations indicated in the Latin maxim, actus non
facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty
mind.1

To make a person criminally accountable, it must be proved that an act, which is

forbidden by law, has been caused by his conduct, and that the conduct was
accompanied by legally blameworthy attitude ofmind. Thus, there are two
components of every crime, a physical element and a mental element, usually called
actus reus and mens rea respectively. 2

Actus Reus

The word actus connotes a ‘deed’, a physical result of human conduct. The word
reus means ‘forbidden by law’. The word actus reus, may, therefore, be defined as
‘such result of human conduct a§ the law seeks to prevent.’

The actus reus is made up ofthree constituent parts, namely: 3

(i) human action which is usually termed as ‘conduct;

(ii) the result of such act in the specified circumstances, which is a designated
as ;injury’; and
(iii) such act as is ‘prohibited by law’.

Conduct

An act is defined as ‘an event subject to the control of the will’. In other words, an act
means something voluntarily done by a human being, for example, giving a blow,

1 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
2 Ibid
3 Basu N.D.; Indian Penal Code, 8th Ed. Vol-I (1999)
walking, speaking, or any external manifestation of one’s mind. Broadly speaking,
human action includes acts of commission as well as acts of omission."

For the purpose of fixing criminal liability, an act may be analysed as consisting
ofthree parts: (a) its origin in some mental or bodily activity or passivity ofthe doer,
that is, a .willed movement or omission; (b) its circumstances; and (c) its
consequences.4

IfA shoots B to death with a rifle, the material elements ofthe act are: first, its origin
or the primary, stage, namely, a series ofmuscular contractions by which the rifle is
raised and the trigger pulled; secondly, the circumstances, the fact that the rifle is
loaded and is In working order, and that the person killed is within range; thirdly, the
consequences, the fall ofthe trigger, explosion ofthe powder, the discharge ofthe
bullet, striking ofthe body ofthe victim resulting in his death. All these factors are
implied in the statement ‘A killed B’ and they constitute ‘an act’. for which he will be
criminally liable. 5

However, if A, while in a fit of epilepsy strikes and hurts B, A is not liable for causing
injury to B, because at that time he had no control over his actions. The movement of
his arms and legs were not the result of his voluntary actions. Similarly, if A, suffering
from somnambulism, (a disorder in which sleep-walking is the major symptom) steps
on B, who was sleeping on the floor and hurts him, A is not liable for causing hurt to
B. A’s actions were not conscious or willed actions, and so it would not amount to ‘an
act’ at law for the purpose of holding A criminally liable for causing injury to B.

Result of Conduct

To constitute a crime, there must always be a result brought about by human

conduct; a physical event, which the law prohibits. Actus reus, therefore, is the result
of a human conduct and is an event. However, an event is distinguishable from the
conduct that produces the result.6

For example, in the case of a murder, it is the victim’s death brought about by the
conduct of the accused which is the actus reus. In other words, a crime is constituted

4 Gandhi B.M.; Indian Penal Code (1996)

5 Ibid
6 Nigam R.C.; Principles ofCriminal Law (Law of Crimes in India), Vol.-I
by the event, and not by the activity which causes the event. For example,, the
activity that led to the event, namely, shooting, stabbing, strangling or poisoning, etc
might have caused the victim’s death. It is.immaterial to the crime of murder. Once
the desired act is accomplished, the actus reus of the crime is complete and how the
contemplated event took place is not of much significance except for the purpose of
fixing criminal responsibility. If the desired result is not achieved, the person is not
responsible for the intended criminal act, which could not materialize.

If A fires at B in order to kill him, but the bullet causes only slight injury in B’s leg, A
is not liable for murder, unless the actus reus of the crime of murder is complete. Of
course, A will be liable for the offence of attempt to murder and for causing simple or
grievous hurt, as the case may be7.

Acts Prohibited by Law

An act, howsoever reprehensible it may be, is not a crime unless prohibited by law.
Only those acts that the law has chosen to forbid are crimes. No crime is committed
when a soldier, in a battlefield, shoots an enemy. The act being authorised by law,
the killing is not the actus reus of crime, for there is a lawful justification for it.
Similarly, no crime is committed when a person exercising his lawful right of private
defence causes harm to another. 8

Likewise, if an onlooker who happens to be a good swimmer does not rescue a child
about to be drowned in a pond he is not liable for any offence because there was no
legal duty on his part to rescue a person. An act of omission, to be punishable, must
be an illegal omission120 or a breach of legal duty. 9For instance, a jailor who
starves the prisoners in his charge to death in guilty of murder. The jailor’s act
amounts to an illegal omission to discharge his legal obligation to provide meals to
the prisoners.

Mens Rea

Mens rea is a technical term, generally taken to mean some blameworthy mental
'condition, whether constituted by intention or knowledge or otherwise, the absence

7 Tripathi B.N.M.; Text Book ofCriminal Law (Indian Penal Code), 2nd Ed. 1996
8 Ibid
9 Najmi, Mohammed (Prof.) : Mens Rea in Conspirary (1993)1 C.B.!. Bull. 27 p. 1
of which on any particular occasion, negatives the contention of a crime. There must
be a mind at fault to constitute a crime. No act is per se criminal; the act becomes
criminal when the actor does it with a guilty mind. Causing injury to an assailant in
self-defence is not a crime, but the moment injury is caused with an intent to take
revenge, the act becomes criminal.

Likewise, shooting in air is no crime, but shooting with an intent to kill a man is a
crime. The courts in earlier days in order to fix the accused’s criminal liability were to
determine whether the accused behaved in a manner which fell below the ethical
norms approved in the society or not. If the conduct happened to be below the
ethical standard, the accused was responsible for his act at law. Later, two tests
were evolved to determine mens rea. The first was whether the act in question was a
voluntary act of the accused and second, whether the accused had the foresight of
the consequences of his conduct.10

However, there is no single state of mind that must be present as a prerequisite for
all crimes. Mens rea takes on different colours in different surroundings. What is an
evil intent for one kind of offence may not be so for another kind. For instance, in the
case of murder, it is the intent to cause, death; in the case of theft, an intention to
steal; in the case of rape, an intention to have forcible sexual intercourse with a
woman without her consent; in the case of receiving stolen goods, knowledge that
the goods were stolen; and in the case of homicide, by rash or negligent act,
recklessness or negligence.11 To appreciate the meaning ofmens rea, it is necessary
to have a clear conception of words like intention, motive, knowledge, recklessness
and negligence etc, which are often used to indicate the different possible mental
attitudes constituting the actus reus of a particular crime.

General Exceptions under the IPC

The Criminal law covers various punishments which vary from case to case. But it is
not always necessary that a person gets punished for a crime which he/she had
committed. The Indian Penal Code (IPC), 1860 recognizes defences in Chapter IV
under “General Exceptions”12. Section 76 to 106 covers these defences which are

10 Basu N.D.; Indian Penal Code, 8th Ed. Vol-I (1999)

11 Ibid
12 Tripathi B.N.M.; Text Book ofCriminal Law (Indian Penal Code), 2nd Ed. 1996
based on the presumption that a person is not liable for the crime committed. These
defences depend upon the circumstances prevailing at that point of time, mens rea
of person and reasonability of action of that accused.

Object of Chapter IV

Every offence is not absolute, they have certain exceptions. When IPC was drafted,
it was assumed that there were no exceptions in criminal cases which were a major
loophole. So a separate Chapter IV was introduced by the makers of the Code
applicable to the entire concept.13

In short, the object of Chapter IV includes:

 Exceptional circumstances in which an individual can escape liability.

 Making Code construction simpler by removing the repetition of criminal
exceptions.
 Burden of Proof
 Generally, Prosecution has to prove its case beyond reasonable doubt
against the accused.

Before the enforcement of the Indian Evidence Act 1882, the prosecution had to
prove that the case does not fall under any exception, but section 105 of Evidence
act shifted the burden on the claimant.

But in exceptions, as per Section 105 of Evidence Act, a claimant has to prove the
existence of general exception in crimes.14

The fabric of Chapter IV

Section 6 of IPC

“Throughout this code, every definition of offence, every penal provision and every
illustration of every such definition or penal provision, shall be understood subject to
exceptions contained in the chapter titled General Exceptions”.

The General Exceptions are divided into 2 categories:

13 supra
14 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
  Excusable Acts
 Judicially Justifiable Acts

Excusable Acts Justifiable Act

An act of Judge and Act performed in

A mistake of Fact under section 76
pursuance of an order under Section 77
and 79.
and 78.

Accident under Section 80. The necessity under 81.

Consent under Section 87 – 89 and

Infancy – Section 82 and 83.
Section 90 and 92.

Insanity – Section 84. Communication under Section 93.

Intoxication – Section 85 and 86. Duress under Section 94.

Trifles under Section 95.

Private Defence under Section 96 – 106.

Excusable Acts

An Excusable Act is the one in which though the person had caused harm, yet that
person should be excused because he cannot be blamed for the act. For example, if
a person of unsound mind commits a crime, he cannot be held responsible for that
because he was not having mens rea.15 Same goes for involuntary intoxication,
insanity, infancy or honest mistake of fact.

A mistake of Fact under Section 76 and 79

Under Section 76: Act done by a person bound or by mistake of fact believing,
himself to be bound by law in included.16 Nothing is an offence which is done by a
person who is or by reason of a mistake of fact, not by mistake of law in good faith

15 Gandhi B.M.; Indian Penal Code (1996)

16 Ibid
believes himself, to be, bound by law to do such act. It is derived from the legal
maxim “ignorantia facti doth excusat, ignorantia juris non excusat”.

Example: If a soldier firing on a mob by the order of his officer in conformity through
the command of the law, then he will not be liable.

Under Section 79: Act done by a person justified or by mistake of fact believing,
himself justified, by law is included. Nothing is an offence which is done by any
person who is justified by law, or who by reason of mistake of fact and not mistake of
law in good faith, believes himself to be justified by law, in doing that particular act

Example: A thought Z to be a murderer and in good faith and justified by law, seizes
Z to present him before authority. A has not committed any offence.17

Case law for Section 79

In Kiran Bedi v. Committee of Inquiry, 18petitioner refused to deposed to the

beginning of the inquiry as she believed that she could depose only at the end of

the inquiry

Accident under Section 80

Includes an Accident committed while doing a lawful act. Nothing is an offence which
is done by accident or misfortune, without any criminal intention or knowledge in the
doing of a lawful act in a lawful manner by lawful means and with proper care and
caution.19

Example: Suppose M is trying to shoot a bird with a gun but unfortunately the bullet
reflected from the oak tree causing harm to N, then, M will not be liable.

Case law for Section 80

In King Emperor v. Timmappa, 20a division bench held that shooting with an
unlicensed gun does not debar an accused from claiming defence under Section 81
of IPC. The appeal of acquittal was dismissed and the order of trial magistrate was

17 Najmi, Mohammed (Prof.) : Mens Rea in Conspirary (1993)1 C.B.!. Bull. 27 p. 1

18 1988 AIR 2252 1988 SCR Supl. (2) 518 1988 SCC (4) 49 JT 1988 (3) 372 1988 SCALE (2)272
19 Nigam R.C.; Principles ofCriminal Law (Law of Crimes in India), Vol.-I
20 (1928) 55 MLJ 351
upheld. The court was of the opinion that there is no reason why sentence awarded
under Section 19(e) of the Indian Arms Act should be enhanced. The respondent
was liable under the provision but no more. He just borrowed a gun for few minutes
to kill as he thought a wild animal might attack him and his partners. The application
was dismissed regarding enhancement of sentence.21

Infancy – Section 82 and 83

Section 82: It includes an act of a child below seven years of age. Nothing is an
offence which is done by a child under seven years of age.

Suppose a child below seven years of age, pressed the trigger of the gun and
caused the death of his father, then, the child will not be liable.

Section 83: It includes an act of a child above seven and below twelve of immature
understanding. Nothing is an offence which is done by a child above seven years of
age and under twelve, who has not yet attained sufficient maturity of understanding
to judge the nature and repercussions of his conduct during that occasion.22

Example: Suppose a child of 10 years killed his father with a gun in the shadow of
immaturity, he will not be liable if he has not attained maturity.

Case law for Section 83

In Krishna Bhagwan v. State of Bihar,23 Patna High Court upheld that if a child who is
accused of an offence during the trial, has attained the age of seven years or at the
time of decision the child has attained the age of seven years can be convicted if he
has the understanding an knowledge of the offence committed by him.

Insanity – Section 84

Act of a person of unsound mind. Nothing is an offence which is done by a person

who at that time of performing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is either wrong or contrary to
law.

21 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
22 Ibid
23 AIR 1989 Pat 217, 1991 (39) BLJR 321, 1991 CriLJ 1283
Example: A, who is insane or unsound, killed B with a knife, thinking it to be a fun
game, will not be liable for B’s death as he was not aware of the nature of act and
law. he was incapable of thinking judiciously.

Case law for Section 84

In Ashiruddin Ahmed vs. State,24 the accused Ashiruddin was commanded by

someone in paradise to sacrifice his own son, aged 4 years. Next morning he took
his son to a Mosque and killed him and then went straight to us uncle, but finding a
chowkidar, took the uncle nearby a tank and told him the story.

The Supreme Court opined that the accused can claim the defence as even though
he knew the nature of the act, he did not know what was wrong. 25

Intoxication – Section 85 and 86

Section 85: Act of a person incapable of judgment by reason of intoxication caused

against his will. Nothing is an offence which is done by a person who at the time of
doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or
that he is doing what is either wrong, or contrary to law, provided that the thing which
intoxicated him was administered involuntarily without his will or knowledge.

Example: A drank alcohol given by a friend thinking it to be a cold drink. He became

intoxicated and hit a person on driving his car back home. He will not be liable as
alcohol was administered to him without his will and knowledge.26

Section 86: Offence requiring a particular intent or knowledge committed by one who
is intoxicated. This applies to cases where an act done is not an offence unless done
with a particular knowledge or intent, a person who does the act in state of
intoxication, shall be liable to be dealt with as if he had the same knowledge as he
would have had if he had not been intoxicated, unless the thing which intoxicated
him was administered to him without his knowledge or against his will.

Example: A person intoxicated, stabs another person under influence of alcohol

which was administered to him in the party against his knowledge or will, will not be

24 1949 CriLJ 255

25 supra
26 Tripathi B.N.M.; Text Book ofCriminal Law (Indian Penal Code), 2nd Ed. 1996
liable. But if that person had stabbed that person under voluntary intoxication, then
he will be liable.

Case law for Section 86

In Babu Sadashiv Jadhav case, the accused was drunk and fought with the wife. He
poured kerosene and set her on fire and started extinguishing the fire. The court held
that he intended to cause bodily injury which was likely to cause death under section
299(20 and sentenced h under section 304, Part I of code).27

Justifiable Acts

A justified act is one which would have been wrongful under normal conditions but
the circumstances under which the act was committed makes it tolerable and
acceptable.

Act of Judge and Act performed in pursuance of an order under Section 77 and 78

Section 77: Act of Judge when acting judicially. Nothing is an offence which is done
by a judge when acting judicially in the exercise of any power which is, or which in
good faith he believes to be, given to him by law.28

Example: Giving Capital Punishment to Ajmal Kasab was done under the judicial
powers of judges.

Section 78: Act done pursuant to the Judgement or order of the court. Nothing which
is done in pursuance of, or which is warranted by the judgment or order of, a court of
justice, if done whilst such judgment or order remains in force, is an offence,
notwithstanding the court may have no jurisdiction to pass such judgment or order,
provided the person doing the act in good faith believes that the court had such
jurisdiction.29

Example: A judge passing an order of giving lifetime jail punishment, believing in

good faith that the court has jurisdiction, will not be liable.

Necessity under 81

27 supra
28 Basu N.D.; Indian Penal Code, 8th Ed. Vol-I (1999)
29 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
Act likely to cause harm, but done without criminal intent, and to prevent other harm.
Nothing is an offence merely by reason of its being done with the knowledge that it is
likely to cause harm if it is done without any criminal intention to cause harm, and in
good faith for the purpose of preventing or avoiding other harm to person or property.

Example: A Captain of a ship turned the direction of the ship of 100 people in order
to save their lives, but harming the life of 30 people of a small boat, without any
intention or negligence or fault on his part. He will not be liable because necessity is
a condition in which a person causes small harm to avoid great harm.30

Case law for Section 81

In Bishambher v. Roomal, 131950, the complainant Bishambhara had molested a girl

Nathia. Khacheru, Mansukh, and Nathu were accused related to father of the girl.
The Chamars were agitated and determined to punish Bhishambher. Rumal Singh,
Fateh Singh, and Balwant Singh intervened and tried to bring a settlement. They
collected a panchayat and the complainant’s black was blackened and given shoe
beating. It was found by the court that accused had intervened in good faith but the
panchayat was having no authority to take such a step.32

Consent under Section 87 – 89 and Section 92

Section 87: Act not intended and not known to be likely to cause death or grievous
hurt, done by consent. Nothing which is not intended to cause death, or grievous
hurt, and which is not known by the doer which is likely to cause death or grievous
hurt, is an offence by reason of any harm which it may cause, or to be intended by
the doer to cause, to any person, above 18 years of age, who has given consent,
whether express or implied, to suffer that harm; or by reason of any harm which it
may be known by the doer to be likely to cause to any such person who has
consented to that risk of harm.

Example: A and E agreed to fence each other for enjoyment. This agreement implies
the consent of each other to suffer harm which, in the course of such fencing, may

30 Gandhi B.M.; Indian Penal Code (1996)

31 AIR 1951 All 500
32 Ibid
be caused without foul play and if A while playing fairly hurts E, then A, has
committed no offence.

Case law for Section 87

In Poonai Fattemah v. Emp33, the accused who professed to be a snake charmer,

induced the deceased to believe him that he the power to protect him from any harm
caused by the snake bite. The deceased believed him and got bitten by the snake
and died. The defence of consent was rejected.34

Section 88: Act not intended to cause death, done by consent in good faith for
person’s benefit. Nothing, which is not intended to cause death, is an offence by
reason of any harm which it may cause, or be intended by the doer to cause, or be
known by the doer to be likely to cause, to any person for whose benefit it is done in
good faith, and who has given a consent, whether express or implied to suffer that
harm, or to take the risk of that harm.35

Case law for Section 88

In R.P Dhanda V. Bhurelal,36 the appellant, a medical doctor, performed an eye

operation for cataract with patient’s consent. The operation resulted in the loss of
eyesight. The doctor was protected under this defence as he acted in good faith.

Section 89: Act done in good faith for the benefit of a child or insane person, by or by
consent of the guardian. Nothing which is done in good faith for the benefit of a
person under twelve years of age, or of unsound mind, by or by consent, either
express or implied, of the guardian or other person having lawful charge of that
person, is an offence by reason of any harm which it may cause, or be intended by
the doer to cause or be known by the doer to be likely to cause to that person

Section 92: Act done in good faith for benefit of a person without consent. Nothing is
an offence by reason of any harm which it may causes to a person for whose benefit
it is done in good faith, even without that person’s consent, if the circumstances are
such that it is impossible for that person to signify consent, or if that person is

33 (12 W.R., Crim. Rul., 7)

34 supra
35 Jain A.K.; Criminal Law (Part-2), 1st Ed. 1998 (Reprint 2000)
36 1987 CriLJ 1316
incapable of giving consent, and has no guardian or other person in lawful charge of
him from whom it is possible to obtain consent in time for the thing to be done with
benefit.

Section 90: Consent known to be given under fear or misconception. A consent is

not such a consent as is intended by any section of this Code,37

if the consent is given by a person under fear of injury, or under a misconception of

fact, and if the person doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or misconception; or

Consent of insane person if the consent is given by a person who, from

unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or

Consent of children, the contrary appears from the context, if the consent is given by
a person who is under twelve years of age.38

Case law for Section 90

In Jakir Ali v. State of Assam39, it was proved beyond doubt that the accused had
sexual intercourse with the victim on a false promise of marriage. The Gauhati High
Court held that submission of the body by a woman under fear or misconception of
fact cannot be construed as consent and so conviction of the accused under
sections 376 and 417 of the Indian Penal Code was proper.

Section 91: Exclusion of acts which are offences independently of harm caused.
The exceptions in sections 87, 88 and 89 do not extend to acts which are offences
independently of any harm which they may cause, or be intended to cause or be
known to be likely to cause, to the person giving the consent, or on whose behalf the
consent is given.

Communication under Section 93

37Tripathi B.N.M.; Text Book ofCriminal Law (Indian Penal Code), 2nd Ed. 1996
38Ibid
39 2007 CriLJ 1615, 2007 (3) GLT 497
Communication made in good faith. No communication made in good faith is an
offence by reason of any harm to the person to whom it is made if it is made for the
benefit of that person.

Example: A doctor in good faith tells the wife that her husband has cancer and his
life is in danger. The wife died of shock after hearing this. The doctor will not be
liable because he communicated this news in good faith.40

Duress under Section 94

Act to which a person is compelled by threats. Except murder, and offences against
the state punishable with death, nothing is an offence which done by a person
compelled to do it under threats, which, at the time of doing it, reasonably cause the
apprehension that instant death to that person will otherwise be the consequence,
provided the person doing the act did not of his own accord, or from reasonable
apprehension of harm to himself short of instant death, place himself in the situation
by which he became subject to such constraint.

Example: A was caught by a gang of dacoits and was under fear of instant death. He
was compelled to take gun and forced to open the door of house for entrance of
dacoits and harm the family. A will not be guilty of offence under duress.41

Trifles under Section 95

Act causing slight harm is included under this section. Nothing is an offence by
reason that it causes, or that it is intended to cause, or that it is known to be likely to
cause, any harm if that harm is so slight that no person of ordinary sense and temper
would complain of such harm.

Case law for Section 95

In Mrs. Veeda Menezes v. Khan,42 during the course of exchange of high tempers
and abusive words between appellant’s husband and the respondent, the latter
threw a file of papers at the former which hit the appellant causing a scratch on the
elbow. SC said that the harm caused was slight and hence, not guilty.

40 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
41 Ibid
42 1966 AIR 1773, 1966 SCR 123
Private Defence

Sections 96 to 106 of the Indian Penal Code state the law relating to the right of
private defence of person and property. The provisions contained in these sections
give authority to a man to use necessary force against an assailant or wrong-doer for
the purpose of protecting one’s own body and property as also another’s body and
property when immediate aid from the state machinery is not readily available; and in
so doing he is not answerable in law for his deeds.

Self-help is the first rule of criminal law. The right of private defence is absolutely
necessary for the protection of one’s life, liberty and property. 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 the right of private defence43.

150 years ago, during colonialism, an enthusiastic Macaulay proposed a right of

private defence in his draft code with the ambitious project of encouraging a ‘manly
spirit’ among the ‘natives’. The ideal Indian would stand his ground in the face of
danger and not hesitate to defend his own body or property or that of another. He
would respond with defensive force to prevent certain crimes, even to the extent of
causing death. As a general idea, the right of private defence permits individuals to
use defensive force which otherwise be illegal, to fend off attacks threatening certain
important interests. Like the defence of necessity, the right of private defence
authorizes individuals to take the law into their own hands44.

Private Defence: Definition

The expression ‘private defence’ that has been used in the Indian Penal Code,
1860, has not been defined therein. Thus, it has been the prerogative of the judiciary
to evolve a workable framework for the exercise of the right. Thus in India, the right
of private defence is the right to defend the person or property of himself or of any
other person against an act of another, which if the private defence is not pleaded
would have amounted to a crime. 45This right therefore creates an exception to
criminal liability. Some of the aspects of the right of private defence under the IPC
are that no right of self-defence can exist against an unarmed and unoffending

43 Gandhi B.M.; Indian Penal Code (1996)

44 Basu N.D.; Indian Penal Code, 8th Ed. Vol-I (1999)
45 Ibid
individual, the right is available against the aggressor only and it is only the person
who is in imminent danger of person or property and only when no state help is
available. The right of private defence is a natural right which is evinced from
particular circumstances rather than being in the nature of a privilege46.

However, the most important principle is that the right of private defence requires
that the force used in the defence should be necessary and reasonable in the
circumstances. But, in the moments of disturbed mental condition, this cannot be
measured in golden scales.47 Whether the case of necessity exists must be
determined from the viewpoint of the accused and his act must be viewed in the light
of the circumstances as they appear on such occasion. Specific limitations have also
been provided for when the right cannot be validly exercised and also the provision
specifies clearly the cases in which the right can extend to the causing of death of
the aggressor.

The reasonable apprehension can only be justified if the accused had an honest
belief that there is danger and that such belief is reasonably warranted by the
conduct of the aggressor and the surrounding circumstances. This brings in an iota
of an objective criterion for establishing ‘reasonableness.’ The imminence of danger
is also an important prerequisite for the valid exercise self-defence48. Thus, there
should be a reasonable belief that the danger is imminent and that force must be
used to repel it.

Nature Of The Right

It is the first duty of man to help himself. The right of self-defence must be fostered in
the citizens of every free country. The right is recognized in every system of law and
its extent varies in inverse ratio to the capacity of the state to protect life and property
of the citizens. It is the primary duty of the state to protect the life and property of the
individuals, but no state, no matter how large its resources, can afford to depute a
policeman to dog the steps of every rouge in the country.

One thing should be clear that there is no right of private defence when there is time
to have recourse to the protection of police authorities. The right is not dependent on

46 Nigam R.C.; Principles ofCriminal Law (Law of Crimes in India), Vol.-I

47 Ibid
48 Ibid
the actual criminality of the person resisted. It depends solely on the wrongful or
apparently wrongful character of the act attempted and if the apprehension is real
and reasonable, it makes no difference that it is mistaken. An act done in exercise of
this right is not an offence and does not, therefore, give rise to any right of private
defence in return49.

Private Defence In The Indian Legal System

Jeremy Bentham, an English Legal Luminary, once opined, “This right of defense is
absolutely necessary. The vigilance of the Magistrates can never make up for
vigilance of each individual on his own behalf. The fear of the law can never restrain
bad men so effectually as the fear of the sum total to individual resistance 50. Take
away this right and you become, in so doing, the accomplice of all bad men.” This
right is based on two principles,

It is available against the aggressor only, and

The right is available only when the defender entertains reasonable apprehension.

There are three tests for ascertaining reasonable apprehension; they are the
objective, subjective and expanded objective tests. While objective test emphasizes
as to how in a similar circumstance an ordinary, reasonable, standard and average
person will respond, the subjective test examines the mental state based on
individual attitude. However, expanded objective test, being a combination of
aforesaid two tests, bases its inquiry to determine whether or not the individual acted
as a reasonable person.

Right of private defence serves a social purpose and the right should be liberally
construed. Such a right is not only a restraining influence on corrupt characters but
also encourages manly spirit in a law abiding citizen. It should not be narrowly
construed as it necessitates the occasions for the exercise of this right as an
effective means of protection against wrong doers.

49 supra
50 Basu N.D.; Indian Penal Code, 8th Ed. Vol-I (1999)
The Right to private defence of a citizen, where one can practically take law in his
own hands to defend his own person and property or that of others, is clearly defined
in Section 96 to Section 106 of the Indian Penal Code.

Section 96 talks about things done in private defence – Nothing is an offence, which
is done in the exercise of the right of private defence.51

Right of private defence cannot be said to be an offence in return. The right of self-
defence under Section 96 is not ,absolute but is clearly qualified by Section 99 which
says that the right in no case extends to the inflicting of more harm than it is
necessary for the purpose of defence. It is well settled that in a free fight, no right of
private defence is available to either party and each individual is responsible for his
own acts. The right of private defence will completely absolve a person from all guilt
even when he causes the death of another person in the following situations, i.e

If the deceased was the actual assailant, and

If the offence committed by the deceased, which occasioned the cause of the
exercise of the right of private defence of body and property falls within anyone of
the six or four categories enumerated in Sections 100 and 103 of the penal code.

Section 97 talks about Right of private defence of the body and of Property: – Every
person has a right, subject to the restrictions contained in Section 99, to defend-

First-His own body, and the body of any other person, against any offence affecting
the human body;52

Secondly-The property, whether movable or immovable, of himself or of any other

person, against any act which is an offence falling under the definition of theft,
robbery, mischief or criminal trespass, or which is an attempt to commit theft,
robbery, mischief for criminal trespass.53

This Section limits exercise of the right of private defence to the extent of absolute
necessity. It must not be more than what is necessary for defending aggression.
There must be reasonable apprehension of danger that comes from the aggressor.

51 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
52 Ibid
53 Gandhi B.M.; Indian Penal Code (1996)
This Section divides the right of private defence into two parts, i.e. the first part deals
with the right of private defence of person, and the second part with the right of
private defence of property54.

Section 99 lays down the acts against which there is no right of private defence: –
There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by a
public servant acting in good faith under color of his office, though that act, may not
be strictly justifiable by law.

Section 99 lays down the conditions and limits within which the right of private
defence can be exercised. The first two clauses provide that the right of private
defence cannot be invoked against a public servant or a person acting in good faith
in the exercise of his legal duty provided that the act is not illegal55. Similarly, clause
three restricts the right of private defence if there is time to seek help of public
authorities. And the right must be exercised in proportion to harm to be inflicted. In
other words, there is no right of private defence:56

Against the acts of a public servant; and

Against the acts of those acting under their authority or direction;

When there is sufficient time for recourse to public authorities; and

The quantum of harm that may be caused shall in no case be in excess of harm that
may be necessary for the purpose of defence.

Section100 specifies when the right of private defence of the body extends to
causing death: –

The right of private defence of the body extends, under the restrictions mentioned in
the last preceding section, to the voluntary causing of death or of any other harm to
the assailant, if the offence which occasions the exercise of the right be of any of the
descriptions hereinafter enumerated, namely: —

54 Tripathi B.N.M.; Text Book ofCriminal Law (Indian Penal Code), 2nd Ed. 1996
55 Laxman v. State of Orissa, 1988 Cri. LJ 188 SC
56 Ibid
First-Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;

Secondly-Such an assault as may reasonably cause the apprehension that grievous

hurt will otherwise be the consequence of such assault;

Thirdly- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

Sixthly- An assault with the intention of wrongfully confining a person, under

circumstances that may reasonably cause him to apprehend that he will be unable to
have recourse to the public authorities for his release.

Seventhly – an act of throwing acid or attempting to throw acid.

To invoke the provisions of Section 100 of I.P.C., four conditions must exist:-

The person exercising the right of private defense must be free from fault in bringing
about the encounter,57

There must be an impending peril to life or of great bodily harm,

There must be no safe or reasonable mode of escape by retreat,

There must have been a necessity for taking life.

Section101 prescribes when such right extends to causing any harm other than
death:-

If the offence be not of any of the descriptions enumerated in the last preceding
section, the right of private defence of the body does not extend to the voluntary
causing of death to the assailant, but does extend, under the restrictions mentioned
in Section 99, to the voluntary causing to the assailant of any harm other than
death58.

57 Chacko v. State of Kerala, 2001 Cri. LJ 146 SC

58 Basu N.D.; Indian Penal Code, 8th Ed. Vol-I (1999)
Section102 is very important as it deals with the commencement and continuance of
the right of private defence of the body:

The right of private defence of the body commences as soon as a reasonable

apprehension of danger to the body arises from an attempt or threat to commit the
offence though the offence may not have been committed; and it continues as long
as such apprehension of danger to the body continues. The apprehension of danger
must be reasonable, not fanciful. For example, one cannot shoot one’s enemy from a
long distance, even if he is armed with a dangerous weapon and means to kill. This
is because he has not attacked you and therefore there is no reasonable
apprehension of attack. In other words, there is no attack and hence no right of
private defence arises. Moreover the danger must be present and imminent59.

Section103 specifies when the right of private defence of property extends to

causing death: –60

The right of private defence of property extends, under the restrictions mentioned in
Section 99, to the voluntary causing of death or of any other harm to the wrong-doer,
if the offence, the committing of which, or the attempting to commit which, occasions
the exercise of the right, be an offence of any of the descriptions hereinafter
enumerated, namely: Robbery, House-breaking by night, Mischief by fire committed
on any building, tent or vessel, which building, tent of vessel is used as a human
dwelling, or as a place for the custody of property, Theft, mischief, or house-
trespass, under such circumstances as may reasonably cause apprehension that
death or grievous hurt will be the consequence, if such right of private defence is not
exercised.

Section 103 provides the right of private defence to the property whereas Section
100 is meant for exercising the right of private defence to the body of a person. It
justifies homicide in case of robbery, house breaking by night, arson and the theft,
mischief or house trespass which cause apprehension or grievous harm. If a person
does not have possession over the property, he cannot claim any right of private
defence regarding such property61. Right to dispossess or throw out a trespasser is

59 AIR 1980 SC 660.

60 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
61 AIR 1924 Pat 789.
not available to the true owner if the trespasser has been successful in
accomplishing his possession to his knowledge. This right can be only exercised
against certain criminal acts that are mentioned under this section.

Section104 tells us when such right extends to causing any harm other than death:-

If the offence, the committing of which, or the attempting to commit which, occasions
the exercise of the right of private defence, be theft, mischief, or criminal trespass,
not of any of the descriptions enumerated in the last preceding section, that right
does not extend to the voluntary causing of death, but does extend, subject to the
restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any
harm other than death. This Section cannot be said to be giving a concession to the
accused to exceed their right of private defence in any way62. If anyone exceeds the
right of private defence and causes death of the trespasser, he would be guilty under
Section 304, Part II. This Section is corollary to Section 103 as Section 101 is a
corollary to Section 100.63

Section105 prescribes the commencement and continuance of the right of private

defence of property: –

The Right of private defence of property commences when a reasonable

apprehension of danger to the property commences. The right of private defence of
property against theft continues till the offender has affected his retreat with the
property or either the assistance of the public authorities is obtained, or the property
has been recovered64. The right of private defence of property against robbery
continues as long as the offender causes or attempts to cause to any person death
or hurt or wrongful restraint of as long as the fear of instant death or of instant hurt or
of instant personal restraint continues

The right of private defence of property against criminal trespass or mischief

continues as long as the offender continues in the commission of criminal trespass
or mischief.

62 AIR 1979 SC 577.

63 Ibid
64 1967 CrLJ 102 (Pat).
The right of private defence of property against house-breaking by night continues as
long as the house-trespass which has been begun by such house-breaking
continues.

Section106 talks about right of private defence against deadly assault when there is
risk of harm to innocent person: –65

If in the exercise of the right of private defence against an assault, which reasonably
causes the apprehension of death, the defender be so situated that he cannot
effectually exercise that right without risk of harm to an innocent person his right or
private defence extends to the running of that risk.

Evolution of the Right of Private Defence

In Roman law, homicide was considered to be an act by which the life of a human-
being was taken away. There were two degrees of criminal homicide, namely,
murder and manslaughter, and two degrees of homicide that did not expose a
person to punishment, namely, justifiable and excusable. Self-defence was placed in
the category of justifiable homicide. In self-defence violence was lawful: ‘Vim enim vi
defendere omnes leges emniaque jure permittunt’ (A man, therefore, incurs no
liability, if he kills another’s slave who attacks him.)66. The Justinian code and the
Twelve Tables reiterated this right of private defence- the Code holding that no
greater force than what was sufficient to ward off the threatened danger was
permitted and the Tables on the other hand, allowing killing in such a case without
restrictions regarding it to be permissible self-redress rather than self-defence.

Under English law the status of the right of self-defence underwent a series of
changes through the ages. In the ancient period, there was absolute liability even for
homicide committed se defendendo. In the Medieval period, the theory of pardon
developed and it became excusable, whereas in the Modern Age, homicide
committed in self-defence is treated as justifiable, because it is presumed that such
an act is not backed with evil intent.

65 supra
66 2002 CrLJ 563(SC).
In the early days, the law regarded the word and the act of the individual but it did
not search the heart of the man. It was the age of strict liability67. Man was held
responsible for his acts irrespective of his intentions. His mental state was not taken
into account when determining liability for the commission of the crime. It was the
external conduct and the injury upon which liability was imposed. The accidental
injuries and the injuries inflicted during self-defence, also attracted liability. Thus,
criminal liability was not related to the evil intention of the actor.68

However, in the 13th century there was a shift from strict liability and emphasis was
laid on the mental element. During this period, killing was justified in a few
exceptional cases. One who killed in misadventure, or in self-defence was still guilty
of a crime, although he deserved a pardon from the King 69. During the Medieval
period, though the accused obtained pardon yet he forfeited his goods for the crime
committed in self-defence.

The moral sense of the community could not tolerate indefinitely the idea that a
blameless self-defender was a criminal. Ultimately, the jury was allowed to give a
verdict of not guilty in such cases. Pardon of the King soon became a formality in
such cases and thus grew the concept of excusable homicide. The act of pardon
was a kind of excuse70. The word excuse itself denoted the condonation of wrong
committed by the offender. Blackstone perceived the essence of excuses to be ‘the
want or defect of will’. This all changed in the modern period. In modern times, there
is a presumption that there is no mens rea in the homicides committed in self-
defence and as such it has become a justifiable general defence in law. Thus, now
no criminal liability is attached to the accused in such cases. This is in conformity
with the provisions of Article 2 of the European Convention on Human Rights.

Thus, in modern times every evolved legal system has accepted the right of self-
defence as a universal one.

67 Queen v. FukeeraChamar,6 WR (Cr.) 50

68 Gandhi B.M.; Indian Penal Code (1996)
69 Tripathi B.N.M.; Text Book ofCriminal Law (Indian Penal Code), 2nd Ed. 1996
70 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
 CONCLUSION

So these were the general exceptions which are available to the accused to escape
liability or save himself from the offence committed. It may extend to even causing
the death of a person or harm an innocent person too depending upon the
circumstances. The accused should also have the right to be heard, keeping in view
the democratic character of our nation. That’s why these exceptions are provided so
as to represent oneself in the court of law.

In general, private defence is an excuse for any crime against the person or
property. It also applies to the defence of a stranger, and may be used not only
against culpable but against innocent aggressors.

The defence is allowed only when it is immediately necessary-against threatened

violence. A person who acts under a mistaken belief in the need for defence is
protected, except that the mistake must be reasonable. In principle, it should be
enough that the force used was in fact necessary for defence, even though the actor
did not know this; but the law is not clear. There is no duty to retreat, as such, but
even a defender must wherever possible make plain his desire to withdraw from the
combat. The right of private defence is not lost by reason of the defender’s having
refused to comply with unlawful commands.

The force used in defence must be not only necessary for the purpose of avoiding
the attack but also reasonable, i.e. proportionate to the harm threatened; the rule is
best stated in the negative form that the force must not be such that a reasonable
man would have regarded it as being out of all proportion to the danger.

The carrying of firearms and other offensive weapons is generally forbidden, but (1)
a thing is not an “offensive weapon” if it is not offensive per se and is carried only to
frighten; (2) a person does not “have it with him” if he merely snatches it up in the
emergency of defence.

The right of defence avails against the police if they act illegally, but the defender
cannot take benefit from a mistake as to the law of arrest or self-defence. The
traditional rule is that even death may be inflicted in defence of the possession of a
dwelling.
The occupier of premises may use necessary and reasonable force to defend them
against a trespasser, or one reasonably thought to be a trespasser; and it seems
that even a licensee (such as a lodger) can eject trespassing strangers. It is a
statutory offence to set spring guns or mantraps, except in a dwelling house between
sunset and sunrise. It has not been decided whether the exception operates to
confer an exemption from the ordinary law of offences against the person. Such
defences as spikes and dogs are lawful if reasonable. Guard dogs must, by statute,
be kept under full control, except in private houses or on agricultural land.

Thus, we can see the right of private defence is very helpful in giving citizens a
weapon which in a case that it’s not misused is subject to certain restrictions, helps
them protect their and others’ lives and property.

REFERENCE

 S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications,
Allahabad
 Basu N.D.; Indian Penal Code, 8th Ed. Vol-I (1999)
 Gandhi B.M.; Indian Penal Code (1996)
 Jain A.K.; Criminal Law (Part-2), 1st Ed. 1998 (Reprint 2000)
 Nigam R.C.; Principles ofCriminal Law (Law of Crimes in India), Vol.-I
 Nath Bholeshwar : Indian Panel Code Ed. 1998
 Gour H.S.; The Penal Law ofIndia (The I.P.C), 11th Ed. Vol.-l (1978)