Natureof the Right:Itis the duty of man to help him-self first.
The right of private-defence isbeing provided to citizens of each and every democratic country. If the statemechanism failed to provides adequate help and support on time, citizens musthave right to self-defend themselves, if necessary to do on certaincircumstances.Theright of private defence is being recognized in by many state laws, but theprovisions and the ratio to the capacity of act is differed form county tocountry. This depends on the capacity of the state to protect life and propertyof the citizens. As it is the primary duty of the state to provide healthyenvironment to the citizens and to protect life&property of the individual.
Butno matter how much large resources and police force steps of every rouge in thecounty1.Consequently this right has been given by every state citizens to take law intotheir hands for their safety or for the safety of others (if the act is beingdone in good faith). Thereare two conditions for the use of force in self-defence, namely: · First,the use of force for private defence will be justified only when there is animminent threat to a person or his property.· Secondly,the use of force must be in proportion to what is necessary in the particularcircumstances of the case.Non-Avalibility of Private defenceto person on certain Conditions:· When there is sufficient recourse oftime to public authorities.· When more harm than that is necessaryshould not be caused.
· When there must be a reasonqbleapprehension of death or grievious hurt or hurt to the person or damageto theproperty concerned2.For example, if a person strikes me, I cannotbe justified to use a sword or a gun against him in self-defence. The forceshould not be excessive. What force can be used in the particular circumstances,to protect himself or his property, is a difficult question to decide.
Howeverthis depends on the facts and circumstances of each case.Consider this dispute between two people.When the defendant was passing in front of the plaintiff’s house he aimed toshoot the plaintiff’s dog that attempted to bite him. The dog ran away. Butwhen the dog returned, the defendant shot the plaintiff’s dog dead. It was heldthat the right of private defence could not be pleaded in this case.
The actwas unlawful because he shot at the dog at the time what it was not attackingand the force used was excessive and therefore he was liable to paycompensation. Asmentioned in Section- 96 of IPC3″Nothingis an offence, which is done in the exercise of the right of private defence.”Itis being clear that the no right is private defence when there is time to haverecourse of the protection of Police Man. An act exercise as right is not ancommission of an offence, give rise to right of private defence. Right ofprivate defence is not said to be an offence in return4.The right provided in Section-96 IPC, to citizens is absolute in nature, butthe right of private defence should not inflict the provisions or theexceptions mentioned the Section- 99 of IPC. The specific says that the rightshould not extend to inflicting of more harm than it is necessary for thepurpose of self defence.
And it is settled that in free fight, no right ofprivate defence is being available to either of the parties.Section-97of IPC says that the rigt of private defence is of two types, namely:· Right of private defence of body· Right of Private defence of property. Darshan Singh v. State of Punjab5, The Supreme Court laid down Guidelines for RightOf Private Defence for Citizens. It observed that a person cannot be expectedto act in a cowardly manner when confronted with an imminent threat to life andhas got every right to kill the aggressor in self defense. A bench comprisingJustices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a person ofmurder, said that when enacting Section 96 to 106 of the IPC, the Legislatureclearly intended to arouse and encourage the spirit of self-defense amongst thecitizens, when faced with grave danger.” The law does not require a law-abidingcitizen to behave like a coward when confronted with an imminent unlawfulaggression.
As repeatedly observed by this court, there is nothing moredegrading to the human spirit than to run away in face of danger. Right ofprivate defense is thus designed to serve a social purpose and deserves to befostered within the prescribed limit” The court laid down tenguidelines where right of self-defence is available to a citizen, but alsowarned that in the disguise of self-defence, one cannot be allowed to endangeror threaten the lives and properties of others or for the purpose of takingpersonal revenge. The apex court concluded by saying that a person who is underimminent threat is not expected to use force exactly required to repel theattack and his behaviour cannot be weighed on “golden scales.” · The Courtdeclared their legal position under the following 10 guidelines6: Self-preservation is a basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defense within certain reasonable limits. The right of private defense is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. A mere reasonable apprehension is enough to put the right of self-defense into operation.
In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defense. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defense is not exercised. The right of private defense commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension. It is unrealistic to expect a person under assault to modulate his defense step by step with any arithmetical exactitude.
In private defense the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. It is well settled that even if the accused does not plead self-defense, it is open to consider such a plea if the same arises from the material on record. The accused need not prove the existence of the right of private defense beyond reasonable doubt. The Indian Penal Code confers the right of private defense only when the unlawful or wrongful act is an offence. A person who is in imminent and reasonable danger of losing his life or limb may, in exercise of self defense, inflict any harm (even extending to death) on his assailant either when the assault is attempted or directly threatened. Chapter-3 (Right toprivate defence of property and it causing to death) Section-100 of IPC7:When the right of private defence of the bodyextends to causing death.
—The right of private defence of the body extends,under the restrictions mentioned in the last preceding section, to thevoluntary causing of death or of any other harm to the assailant, if theoffence which occasions the exercise of the right be of any of the descriptionshereinafter enumerated, namely:—(First) —Such an assault as may reasonably cause the apprehension that death willotherwise be the consequence of such assault;(Secondly) —Suchan assault as may reasonably cause the apprehension that grievous hurt willotherwise be the consequence of such assault;1 http://www.legalserviceindia.com/article/l470-Private-Defence.html,25/11/2017, 10:53 Am2Puran Singh, 1975 Cr LJ 44 (SC).3Bare act4 http://www.legalserviceindia.
com/article/l470-Private-Defence.html5 Darshan Singh v. State of Punjab ,Criminal AppealNo.446- (Division Bench) of 1994 dated 6.8.2002, PUJHC.6 http://www.legalserviceindia.com/article/l470-Private-Defence.html., 25/11/2017, 6:44 PM.7 https://indiankanoon.org/doc/714464/,25/11/2017, 11:44 Am