Introduction
Subject
to certain limitations the law gives a right to every person to defend his body
or property, or the body or property of another person against unlawful
aggression. He could shield his right by his own force or prevent it from being
violated. It is a right inherent in a man. But the kind and amount of force is
minutely regulated by law. This use of force to protect one’s property and
person is called the right of private defence.
Relevant Provisions
Sections
96, 97, 99, 100, 101, 102, 103, 104, 105, of P.P.C. 1860.
Definition of Private Defence
The
term “Private Defence’ has not been defined in Black’s Law Dictionary
but it does provide a more generic definition of the term self defence,
which it also extends to defending ones property. Self Defence has been
explained by the Black’s Law Dictionary as follows;
“The
use of force to protect ones self, ones family or ones property from a real or
threatened attack. A Person is justified in using a reasonable amount of force
in self defence, if he or she believes that the danger of body harm is imminent
and that force is necessary to avoid such danger.”
Circumstances Where In Assailant Can Be Subjected To Use of Force, Which Can Even Cause His Death
Followings
are two circumstances where in assailant can be subjected to use of force,
which can even cause his death:
(i) Right of Private defence of body
Under
Section 100 P.P.C:
Section
100 describes the situations where the death of a person may be
caused, however it also puts restrictions as are mentioned in Section 99.
Under
Section 100 following are the cases where the death of a person may
be caused in private defence;
(a) Apprehension of Death
Right
of private defence of body can extend to causing death of an assailant when as
assault of assailant reasonably causes apprehension that death will otherwise
be consequence of such assault.
(b) Apprehension of Grievous Hurt
Right
of private defence of body can extend to causing death of an assailant when an
assault of assailant reasonably causes apprehension that grievous hurt will
otherwise be consequence of such assault.
(c) Intention of Committing of Rape
Right
of private defence of body can extend to causing death of an assailant when an
assault of assailant is with intention to commit rape.
(d) Intention of Gratifying Unnatural Lust
Right
of private defence of body an extend to causing death of an assailant when an
assault of assailant is with the intention to gratify unnatural lust.
(e) Intention of Kidnapping or Abducting
Right
of private defence of body can extend to causing death of an assailant when an
assault of assailant is with intention of kidnapping or abducting.
(f) Intention of Wrongfully Confining
Right
of private defence of body can extend to causing death of an assailant when as
assault of assailant is with intention of wrongfully confining a person under
such circumstances, which reasonably causes him to apprehend that he will be
unable to have recourse to the public authorities for this release.
Conditions Precedent to Cause Death in Self Defence
Cause
Law: AIR 1959 Punj 332
In
this case, the court gave four cardinal conditions must exist before the taking
of life of a person is justified on the plea of self-defence.
Firstly:
The accused must be free from fault in bringing about he encounter;
Secondly:
There must be present and impending peril to life of great bodily harm,
either real or so apparent as to create honest belief of an existing necessity;
Thirdly:
There must be no safe or reasonable mode of escape by retreat;
Fourthly:
There must have been a necessity for taking life.
(ii) Right of Private Defence of Property
Section
103 Gives a person a right to cause voluntarily the death of a person who
infringes, threatens to commit an offence or commits an offence which falls
under the categories enumerated by the section following are the cause where
the death of a person may be caused in defence of property;
(a) Commission of Robbery
Right
of private defence of body can extend to causing death of an assailant when
assailant commits or attempts to commit robbery.
(b) Commission of House-breaking By Night
Right
of private defence of body can extend to causing death of an assailant when
assailant commits or attempts to commit house-breaking by night.
(c) Mischief By Fire
Right
of private defence of body can extend to causing death of an assailant when
assailant commits mischief by fire on any building, tent or vessel, which
building, tent or vessel is used as a human dwelling or as a place for custody
of property.
(d) Theft, Mischief Or House –trespass
Right
of private defence of body can extend to causing death of an assailant when
assailant commits or attempts to commit theft, mischief or house-trespass under
such circumstance, which reasonably cause apprehension that death or grievous
hurt will be consequence, if such right of private defence is not exercised.
Final Analysis
To
Conclude, it can be stated that it is necessary to exercise right of private defence
that use of force should have become necessary against assailant and use of
force should be reasonable. When a person uses such necessary and reasonable
force through private defence, he/she is not answerable in law for his/her
deeds.
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