Download law of crimes 1 for semester 3 and more Exams Criminal Law in PDF only on Docsity!
LLB Paper Code: 205 Subject: Law of Crimes – I Semester: Third
Unit-I: Introduction to Substantive Criminal Law a. Extent and operation of the Indian Penal Code b. Definition of Crime c. Constituents Elements of Crime: Actus Reus and Mens rea
Unit-II: General Exceptions a. Definitions b. Mistake c. Judicial and Executive acts d. Accident e. Necessity f. Infancy g. Insanity h. Intoxication i. Consent j. Good Faith k. Private Defense against Body and Property
Unit-III: Incoherent Forms of Crime a. Joint and Constructive Liability b. Criminal Conspiracy c. Attempt d. Abetment
Unit-IV: Punishment a. Offence against the State b. Offence against Public Tranquility c. Theories of Punishment with special reference to Capital Punishment
Unit-I: Introduction to Substantive Criminal Law
Introduction:
Criminal law is a body of rules and statutes that defines conduct prohibited by the state because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts. Criminal law differs from civil law, whose emphasis is more on dispute resolution than in punishment. The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and prescribe punishments. In contrast, Criminal Procedure describes the process
through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which state enforces this substantive law—through the gathering of evidence and prosecution—is generally considered a procedural matter. The first civilizations generally did not distinguish between civil law and criminal law. The first written codes of law were designed by the Sumerians around 2100-2050 BC. Another important early code was the Code Hammurabi, which formed the core of Babylonian law. These early legal codes did not separate penal and civil laws. Of the early criminal laws of Ancient Greece only fragments survive, e.g. those of Solon and Draco. After the revival of Roman law in the 12th century, sixth-century Roman classifications and jurisprudence provided the foundations of the distinction between criminal and civil law in European law from then until the present time. The first signs of the modern distinction between crimes and civil matters emerged during the Norman invasion of England. The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scolasticism, when the theological notion of God's penalty (poena aeterna) that was inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal law. The development of the state dispensing justice in a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law had formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.
A. Extent and operation of the Indian Penal Code:
This Act shall be called the Indian Penal Code, and shall extend to the whole of India except the State of Jammu and Kashmir. Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which, he shall be guilty within India. Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. The provisions if this Code apply also to any offence committed by- (1) any citizen of India in any place without and beyond India; (2) any person on any shop or aircraft registered in India wherever it may be.
Explanation- In this Section the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code. E.g. A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India at which he may be found Certain laws not to be affected by this Act. Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airman in the service of the Government of India or the provisions of any special or local law.
B. Definition of Crime:
Many jurists have defined crime in their own ways some of which are as under:
Blackstone defined crime as an act committed or omitted in violation of a public law either forbidding or commanding it.
The injury should be illegally caused to any person in body, mind, reputation or property as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to any person in body, mind, reputation or property.
Stages in commission of a Crime: If a person commits a crime voluntarily or after preparation the doing of it involves four different stages. In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly, attempt to commit it and fourthly the accomplishment. The stages can be explained as under:
- Intention: Intention is the first stage in the commission of an offence and known as mental stage. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. But the law does not take notice of an intention, mere intention to commit an offence not followed by any act, cannot constitute an offence. The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the guilty mind of a person.
- Preparation: Preparation is the second stage in the commission of a crime. It means to arrange the necessary measures for the commission of the intended criminal act. Intention alone or the intention followed by a preparation is not enough to constitute the crime. Preparation has not been made punishable because in most of the cases the prosecution has failed to prove that the preparations in the question were made for the commission of the particular crime. If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter enemy B, but does nothing more. A has not committed any offence as still he is at the stage of preparation and it will be impossible for the prosecution to prove that A was carrying the loaded pistol only for the purpose of killing B. Preparation When Punishable- Generally, preparation to commit any offence is not punishable but in some exceptional cases preparation is punishable, following are some examples of such exceptional circumstances: · Preparation to wage war against the Government - Section 122, IPC 1860; · Preparation to commit depredation on territories of a power at peace with Government of India- Section 126, IPC 1860; · Preparation to commit dacoity- Section 399, IPC 1860; · Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255 and S. 257; · Possessing counterfeit coins, false weight or measurement and forged documents. Mere possession of these is a crime and no possessor can plead that he is still at the stage of preparation- Sections 242, 243, 259, 266 and 474.
- Attempt: Attempt is the direct movement towards the commission of a crime after the preparation is made. According to English law, a person may be guilty of an attempt to commit an offence if he does an act which is more than merely preparatory to the commission of the offence; and a person will be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible. There are three essentials of an attempt: . Guilty intention to commit an offence;
· Some act done towards the commission of the offence; · The act must fall short of the completed offence.
Attempt under The Indian Penal Code, 1860- The Indian Penal Code has dealt with attempt in the following four different ways- · Completed offences and attempts have been dealt with in the same section and same punishment is prescribed for both. Such provisions are contained in Sections 121, 124, 124- A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.
· Secondly, attempts to commit offences and commission of specific offences have been dealt with separately and separate punishments have been provided for attempt to commit such offences from those of the offences committed. Examples are- murder is punished under section 302 and attempt to murder to murder under section 307; culpable homicide is punished under section 304 and attempt to commit culpable homicide under section 308; Robbery is punished under section 392 and attempt to commit robbery under section
· Thirdly, attempt to commit suicide is punished under section 309; · Fourthly, all other cases [where no specific provisions regarding attempt are made] are covered under section 511 which provides that the accused shall be punished with one- half of the longest term of imprisonment provided for the offence or with prescribed fine or with both.
- Accomplishment or Completion- The last stage in the commission of an offence is its accomplishment or completion. If the accused succeeds in his attempt to commit the crime, he will be guilty of the complete offence and if his attempt is unsuccessful he will be guilty of an attempt only. For example, A fires at B with the intention to kill him, if B dies, A will be guilty for committing the offence of murder and if B is only injured, it will be a case of attempt to murder.
reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. Example- A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence.
A judicial act is an act done by a member of the judicial department of government in construing the law or applying it to a particular state of facts presented for the determination of the rights of the parties there under; an act done in furtherance of justice, or a judicial proceedings by a person having the right to exercise judicial authority. A judicial act must be an act performed by a Court, touching the rights of parties, or property, brought before it by voluntary appearance, or by the prior action of ministerial officers. An adjudication of the rights of the parties who in general appear or are brought before the tribunal by notice or process and on whose claims some decision is rendered. According to American Encyclopedia a judicial act is the power to decide the rights of person or property in specific cases. A judicial act is an act involving the exercise of judicial power. The distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it. The term judicial does not necessarily means acts of a judge or legal tribunal sitting for the determination of matters of law, but a judicial act may be an act done by competent authority upon a consideration of facts and circumstances and imposing liability or affecting the rights of others. The authority must exercise some right or duty to decide before its act can be called judicial. The act of the presiding member of a municipal council in declaring the result of a poll is a purely ministerial or administrative act and not judicial. A judicial act seems to be an act done by a competent authority upon a consideration of facts and circumstances and imposing liability or affecting the rights of other. Thus it must be that of a person or persons who have legal authority to determine questions affecting the rights of parties and in a judicial manner. The duties of the Election Officer certainly fit it with the definition of judicial acts. He has legal authority to decide on the objection raised by the candidate. The question decided by him effects the rights of the parties and in deciding the objection raised he hears the parties and may also make an enquiry and therefore has a duty to act judicially. A judicial action is usually held to be adjudication upon the rights of parties who, in general, appear or are brought before Tribunal by notice or process, and upon whose claims some decision or judgment is rendered. Action of a court upon a cause, by hearing it, and determining what shall be adjudged or decreed between the parties, and with which is the right of the case.
D. Accident:
Section 80: Accident in doing a lawful act: Nothing is an offence which is done by accident or misfortune, and 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.
Illustration: A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence.
E. Necessity:
Section 81: Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be 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. Explanation- It is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. Illustrations- (a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down to boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C. (b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act. A is not guilty of the offence.
F. Infancy:
A child can commit no wrong if: (i) He is not endowed with a sufficient maturity of understanding to be able to distinguish right from wrong, or (ii) if he is above 7 and below 12 years of age, but too weak in intellect to judge what is right or wrong. The principle of the law may be expressed in tabular form as follows: Section 82 says nothing is an offence which is done by a child under seven years of age and Section 83 says nothing is an offence which is done by a child above seven years but under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. In English Common Law, a child below seven years of age cannot be guilty of any criminal offence whatever may be evidence as to its possessing a guilty state of mind in the ordinary course of nature. A person of such age is absolutely incapable of distinguishing between right
G. Insanity:
Section 84: Act of a person of unsound mind- Nothing is an offence which is done by a person who, at the time of doing 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.
There are four kinds of person who may be said to be non compos mentis (not of sound mind):
- An idiot – An idiot is one who from birth had defective mental capacity. This infirmity in him is perpetual without lucid intervals;
- One made so by illness – At times, by illness a person is made non compos mentis. He is therefore excused in case of criminal liability, which he acts under the influence of this disorder;
- A lunatic or a mad person– Lunatics are those who become insane and whose incapacity might be or was temporary or intermittent. A lunatic is afflicted by mental disorder.
There is a difference between the medical definitions of insanity. According to medical science, insanity is a disorder of the mind that impairs the mental facilities of a man. Insanity is another name for mental abnormalities due to various factors and exists in various degrees. Insanity is popularly denoted by idiocy, madness, lunacy, to describe mental derangement, mental disorder and all other forms of mental abnormalities known to medical science. Insanity in medical terms encompasses much broader concept than insanity in medical terms. Therefore, the scope of the meaning of insanity in medical terms is much wider when compared to its legal meaning. Insanity or unsoundness of mind is not defined in the Act. It means a disorder of the mind, which impairs the cognitive faculty; that is, the reasoning capacity of man to such an extent as to render him incapable of understanding consequences of his actions. It means that the person is incapable of knowing the nature of the act or of realising that the act is wrong or contrary to law. A person, although of unsound mind, who knows that he is committing an unlawful act, may not get the benefit of this exception provided under Section 84. The nature and extent of the unsoundness must be so high so as to impair his reasoning capacity and that he may not understand the nature of the act or that it is contrary to law. It excludes from its preview insanity, which might be caused by engendered by emotional or volitional factors.
H. Intoxication:
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 to him without his knowledge or against his will. Section 85 essentially deals with offences committed under the influence of drugs or alcohol. Such intoxication should be caused by fraud or coercion and such intoxication should limit his ability to decide what is right and what is wrong.
Section 86 deals with intoxication which is self induced. Such intoxication which results in an offence follows the principle that one who sins when drunk be punished when he is sober. For example, if a person who has consumed too much liquor, takes a knife from his house and goes with the intention to kill a person but instead kills a person who tried to pacify him, his act would amount to murder once he is sober. However, in Delirium tremens , a form of insanity arising out of habitual drinking which makes a person reach a degree of madness whereby he is incapable of distinguishing between right and wrong, the disease is perceived as insanity protanto and the person’s case is given the same treatment as that of a case of involuntary drunkenness.
I. Consent:
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 to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen 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 take the risk of that harm. Example- A and Z agrees to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.
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. Example- A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending in good faith for Z's benefit performs that operation on Z, with Z's consent. A has committed no offence.
Section 89: Act done in good faith for benefit of child or insane person, by or by consent of 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. Provided: First- That this exception shall not extend to the intentional causing of death, or to the attempting to cause death; Secondly- That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death
(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z' s benefit. A' s ball gives Z a mortal wound. A has committed no offence. (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child' s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child' s benefit. A has committed no offence. (d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child, from the house- top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child' s benefit. Here, even if the child is killed by the fall, A has committed no offence. Explanation- Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and
Section 93: 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, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death.
K. Private Defence against Body and Property:
Section 96 to 106 of the penal code states 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. Section 97 says that the rights of private defence are of two types: (i) Right of private defence of body; (ii) Right of private defence of property.
Body may be one’s own body or the body of another person and likewise property may be movable or immovable and may be of oneself or of any other person. 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 defence.
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 recognised in every system of law and its extent varies in the inverse ratio to the capacity of the state to protect life and property of the subject (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. Consequently this right has been given by the state to every citizen of the country to take law into his own hand for their safety. 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 the actual criminality of the person resisted. It depends solely on the wrongful or apparently wrongful character of the act attempted, 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 return.
Section 96: Things done in private defence- Nothing is an offence, which is done in the exercise of the right of private defence. 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 an each individual is responsible for his own acts. While it is true that law does not expect from the person, whose life is placed in danger, to weigh, with nice precision, the extent and the degrees of the force which he employs in his defence, it also does not countenance that the person claiming such a right should resort to force which is out of all proportion to the injuries received or threatened and far in excess of the requirement of the case. The onus of proving the right of private defence is upon the person who wants to plead it. But an accused may be acquitted on the plea of the right of private defence even though he has not specifically pleaded it. Courts are empowered to exempt in such cases. It must be borne in mind that the burden of proving an exception is on the accused. It is not the law that failure to setup such a defence would foreclose this right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability. It is true that no case of right of private defence of person has been pleaded by the accused not put forth in the cross-examination to the eye-witnesses but it is well settled that if there is a reasonable probability of the accused having acted in exercise of right of private defence, the benefit of such a plea can still be given to them. The right of private defence, as the name suggests, is an act of defence and not of an offence. Consequently, it cannot be allowed to be used as a shield to justify an aggression. This requires a very careful weighing of the facts and circumstances of each case to decide as to whether the accused had in fact acted under this right. Assumptions without any reasonable basis on the part of the accused about the possibility of an attack do not entitle him to exercise this right. It was held in a case that the distance between the aggressor and the target may have a bearing on the question whether the gesture amounted to assault. No precise yardstick can be provided to fix such a distance, since it depends upon the situation, the weapon used, the background and the degree of the thrust to attack etc.
The right of private defence will completely absolve a persons from all guilt even when he causes the death of another person in the following situations: •If the deceased was the actual assailant; and
available to the true owner if the trespasser has been successful in accomplishing possession and his success is known by the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. The onus of establishing plea of 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 right of private defence is purely preventive and not punitive or retributive. Once it is held that the party of the accused were the aggressors, then merely because a gun was used after some of the party persons had received several injuries at the hands of those who were protecting their paddy crop and resisting the aggression of the party of the accused, there can be no ground for taking the case out of Section 302, I.P.C., if otherwise the injuries caused bring the case within the definition of murder.
Chotelal v. State: B was constructing a structure on a land subject to dispute between A and B. A was trying to demolish the same. B therefore assaulted A with a lathi. It was held that A was responsible for the crime of waste and B had therefore a right to defend his property.
Section 98: Right of private defence against the act of a person of unsound mind, etc.- When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. Example- (i) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. (iii) A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a house breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.
This Section lay down that for the purpose of exercising the right of private defence, physical or mental capacity of the person against whom it is exercised is no bar. In other words, the right of private defence of body exists against all attackers, whether with or without mens rea. The above mentioned illustration are pointing a fact that even if an attacker is protected by some exception of law, that does not diminish the danger and risk created from his acts. That is why the right of private defence in such cases also can be exercised, or else it would have been futile and meaningless.
Section 99: Act against which there is no right of private defence- There is no right of private defence against an act which does not reasonable 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 colour of his office, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office,
though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised- The right to Private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence.
Explanation 1 - A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. Explanation 2 - A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such, demanded.
Section 99 lays down that the conditions and limits within which the right of private defence can be exercised. The section gives a defensive right to a man and not an offensive right. That is to say, it does not arm a man with fire and ammunition, but encourage him to help himself and others, if there is a reasonable apprehension of danger to life and property. 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 illegal. 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:
- Against the acts of a public servant;
- Against the acts of those acting under their authority or direction;
- Where there is sufficient time for recourse to public authorities; and
- The quantam of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of defence. The protection to public servants is not absolute. It is subject to restrictions. The acts in either of these clauses must not be of serious consequences resulting in apprehension of causing death or of grievous hurt which would deprive one of his right of private defence. To avail the benefit of those clauses following must be present: ( i ) the act done or attempted to be done by a public servant must be done in good faith; ( ii ) the act must be done under the colour of his office; and ( iii ) there must be reasonable grounds for believing that the acts were done by a public servant as such or under his authority in the exercise of his legal duty and that the act is not illegal. Good faith plays a vital role under this section. Good faith does not require logical infallibility but due care and caution as defined under Section 52 of the code.
Emperor v. Mammun: The accused, five in number, went out on a moonlit night armed with clubs, and assaulted a man who was cutting rice in their field. The man received six distinct fractures of the skullbones besides other wounds and died on the spot. The accused on being charged with
This aspect has create quite a confusion in the law as it indirectly suggests that once 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.
Nand Kishore Lal case: Accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism. Nearly a year after the abduction, the relatives of the woman’s husband came and demanded her return from the accused. The latter refused to comply and the woman herself expressly stated her unwillingness to rejoin her Muslim husband. Thereupon the husband’s relatives attempted to take her away by force. The accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held that the right of the accused to defend the woman against her assailants extended under this section to the causing of death and they had, therefore, committed no offence.
Section101: 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 death.
Mohinder Pal Jolly v. State of Punjab: Workers of a factory threw brickbats and the factory owner by a shot from his revolver caused the death of a worker, it was held that this section did not protect him as there was no apprehension of death or grievous hurt.
Section102: 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 imminent.
Kala Singh Case: The deceased who was a strong man of dangerous character and who had killed one person previously picked up a quarrel with the accused, a weakling. He threw the accused on the ground, pressed his neck and bit him. The accused when he was free from the clutches of this brute took up a light hatchet and gave three blows of the same on the brute’s head. The deceased died three days later. It was held that the conduct of the deceased was aggressive
and the circumstances raised a strong apprehension in the mind of the accused that he would be killed otherwise. The apprehension, however, must be reasonable and the violence inflicted must be proportionate and commensurate with the quality and character of the act done. Idle threat and every apprehension of a rash and timid mind will not justify the exercise of the right of private defence.
Section103: When the right of private defence of property extends to causing death- 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: First-Robbery; Secondly-House-breaking by night; Thirdly-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; Fourthly-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 property. Right to dispossess or throw out a trespasser is 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 which are mentioned under this section.
Mithu Pandey v. State: Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection of fruit by labourers from the trees which were in the possession of the accused persons who protested against the illegal act. In the altercation that followed one of the accused suffered multiple injuries because of the assault. The accused used force resulting in death. The Patna High Court held that the accused were entitled to the right of private defence even to the extent of causing death as the forth clause of this section was applicable.
Jassa Singh v. State of Haryana: The Supreme Court held that the right of private defence of property will not extend to the causing of the death of the person who committed such acts if the act of trespass is in respect of an open land. Only a house trespass committed under such circumstances as may reasonably caused death or grievous hurt is enumerated as one of the offences under Section
Section104: When such right extends to causing any harm other than death-
