Lecture 17

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[00:00:00][music] [music] Uh welcome to this lecture. Today in this lecture we will discuss right of private defense. Students, we have seen the chapter third of the Bhartya Sangeita 2023 that deals with the various general defenses which a person accused of an offense under the SATA or any special or local laws can plead.

[00:00:42]This chapter is important from the point of view of criminal responsibility because section sections contained in it control all other sections defining offenses. These defenses have been put together in one chapter in order to avoate the necessity of repeating in every special clause. Every definition of offense, every penal provision and every illustrations of a definition or penal provision shall be construed subject to the provisions contained in this chapter. Dear student, in fact, as and when any person is accused of committing any crime, then the personal liberty of that person is at your party.

[00:01:33]And in every legal system if a person is accused of committing any offense then certain defenses are provided to that very person.

[00:01:46]In fact in our penal laws that is the bharti there are two types of the defenses available as a whole. one that is that runs along with the section itself and there are certain defenses which are available to every person accused of committing any crime since they are general in nature. Therefore, they have been put together in one chapter and this chapter 3 of the bharti asita contain those very differences. Since these defenses are general in nature and therefore they are placed in one place and they are provided or they are available to every person accused of committing any offense.

[00:02:36]And this chapter three the principle inuniated in this chapter are in fact rule of evidence carrying either conclusive or revertable presumption.

[00:02:48]They deal with the circumstances which preclude the existence of menia.

[00:02:54]That is if the accused person is proved or establishes the defense or anyone of this plea then in that very circumstance he will be exonerated from the criminal liability.

[00:03:10]These differences are therefore enumeration of the circumstances that are incompatible with the existence of menia. Buddha a criminal law jurist call these principles conditions of non-imputability and kai calls them conditions of exemptions from criminal liability.

[00:03:34]If the existence of facts or circumstances bringing the case within any one of the exceptions is proved, it negative the existence of menia necessary to constitute the offense and thereby furnishes a good ground for exemption from criminal liability.

[00:03:55]In our chapter third of this bhartya sangeita an analysis of these chapter that that is from that runs from section 14 to 44 of this chapter in general exception reveals that broadly speaking they deal with the exception are defenses which absolve the accuse from criminal liability. Therefore, an analysis of these [laughter] 31 sections that is section 14 to 44 of this chapter on general exception reveals that broadly speaking they deal with the exception or defenses which absolve the accused from criminal liability.

[00:04:45]They may be split into seven major categories. Apart from the seven category that is private defense to person or property that we have to discuss today these comprises from section 34 to 44 of the bhartita we have mistakes of fact section 14 to 17 judicial acts section 15 to 16 accident section 18 of BNS absence of criminal intent that is section 19 24 and 30 32. Consent that is defense of consent provided under section 25 to 28 and prefilling acts section 33. Then obviously our right of private defense that is section 34 to 44.

[00:05:38]Here today we will discussing the private defense to person or property that is section 34 to 444 of the Bharti Sangita corresponding to this section section 96 206 of this Indian penal code.

[00:05:55]With reference to private defense, we know that a man is justifies in repelling force by force in defense of his person, habitation and property against one who manifestly intends and endeavor by violence are surprised to commit felony. If a person is confronted with these situation, he is not obliged to retreat but may peruse or may pursue his adversary till he find himself out of danger. And if in a difficult or conflict between them, he happens to kill him, such killing is justified.

[00:06:39]This right of private defense is recognized in every system of law and the extent of right varies in reverse ratio to the capacity of a state to protect the life and property of the subject.

[00:06:56]Right of private defense that is under section 34 to 44 BNS 2023. This section 34 BNS correspond to section 96 of IPC.

[00:07:07]Section 34 is of general nature. Section 34 ENS provides things done in private defense which says that nothing is an offense which is done in the exercise of right of private defense.

[00:07:24]We have seen that a man is justified in repelling force by force in defense of his person, habitation or property against one who manifestly intends and endeavor by violence to commit a felony upon either. The right is recognized in every system of law and the extent of the right varies in reverse ratio to the capacity of a state to protect the life and property of the subject. The reason is obvious namely the duty to protect the life and property of the subject is primarily of the state because we know that it is the responsibility of the state to provide protection to every person against any offense either the offense affecting the body or the property of the subject.

[00:08:17]Moreover, we are also aware that it is not possible for the state to provide protection to every person at every time and at at every place howsoever strong the mechanism or the state machine may have been. Therefore, the state gives this right to individual that as and when an an individual is confronted with such a danger whether is against his body or property then in that circumstance the state allows the individual to take the law into their own hand and to defend himself against that act of aggression.

[00:08:57]The same way we know that we but state house large resources can can provide protection in all situations. Therefore, this necessary limitation on the resources of the state has given to the subject protein to the right to take the law into his own hand and to provide for his own safety.

[00:09:22]The whole of defense that is self-defense rest on the four proposition.

[00:09:29]Number one, society undertakes and in large great majority of cases is able to protect private persons against unlawful attacks upon their person or property. Number two, where the aid of society can be obtained, it must be resorted to. Three, where the aid of society cannot be obtained, individual may do everything necessary to protect himself. Fourth, the violence used must be in proportion to the injury to be averted and must not be implied for the gratification of vindictive or malicious feeling.

[00:10:18]However, these right of private defense is also having certain limitations and there are two important limit limits on the right of private defense. First, the right of private defense can under no circumstances justify anything which is strictly is no defense but an offense. Second limitation, the right cannot be claimed when you have yourself quoted the attack. That is to say that aggressor under no circumstance has any right of private defense. Because even in the cases if an aggressor by his own act gives rise a right to his victim to right of private defense and in that exercising the right of private defense if his victim is exceeding the right given to him under the law for the purpose of defending himself in that circumstance that even if he exceeding the right given to him under the law this aggressor against that very exceeding offense or exceeding this jurisdiction cannot exercise his right of private defense.

[00:11:37]In a very important case, Lusman versus state of Odisa 1987 criminal law general page number 541 Rajasthan.

[00:11:46]It was held there that right of private defense is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his own creation. The necessity must be present real and corrupted.

[00:12:09]No right of private defense against an act of self-defense. The Supreme Court in Pamei versus state of Madhya Pradesh held that the aggressor cannot avail of right of private defense against an act of self-defense. In another case, Arun versus Estate of Maharashtra 2009 to criminal law general page number 2065 Supreme Court wherein the Supreme Court held that the availability of right of private defense is a question of fight to be determined on the fact and circumstances of each case.

[00:12:48]It is not it is not necessary for accused to plead in so many words that he acted in self-defense. If circumissa stances show that right of private defense was legitimately exercised. It is open to the court to consider such a play. Court shall presume absence of such circumstances.

[00:13:12]burden and accused stands discharge by showing preponderance of probabilities in favor of that play.

[00:13:23]Thus, in order to decide whether the right of private defense is available or not, entire incident must be examined with care in proper setting in order to find whether right of private defense is available or not. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to the public authorities are all relevant factors to be considered.

[00:13:59]What is right of private defense and under no circumstance justify anything which strictly is no defense but an offense. Right cannot be claimed when you have yourself quoted the attack and other thing that no right of private defense against act of self-defense. In a very important case, Rajes Kumar versus Dhanir 1997 criminal law general age number 22 to4 Supreme Court wherein it was held that the right of private defense can be exercised only to repel unlawful aggression and not to retaliate. An act done in exercise of right of private defense not an offense and does not therefore gives rise to any right of private defense in return.

[00:14:56]There is no right of private defense under the sanhita or for that reason under the Indian penal code against any act which is not in itself an offense under it. That is it is very important to note that this right of private defense is available only against an act which is an offense and is provided under this sanit.

[00:15:23]The right of private defense can be exercised only to repel a lawful aggression and not to retaliate. An act done in the exercise of right of private defense is not offense and does not therefore give rise to any right of private defense in return.

[00:15:43]However, there are certain controversy with reference to that ex if a person who is exercising his right of private defense and while exercising the right of private defense if he exceeded the right given to him under the law and the question is whether against that that exceeding right the accused person or aggressor in return has a right of private defense or not.

[00:16:12]It cannot be said with certaintity whether the offender too has a right of private defense against an act done in exercise of the right of private defense where such right is exceeded and it poses substantial danger to him.

[00:16:28]According to some, his right of private defense is restricted by the second limitations which we have stated earlier that the right cannot be claimed when a person had himself quoted the attack.

[00:16:44]But according to some others, he has a right of private defense because the other acting in exercise of his right of private defense shall forfeit the protection the moment he exceed the right given to him under the law.

[00:17:02]So long as the defender's act is within the limit let down in sanitita, the aggressor shall have no right of private defense arising out of his own act of aggression. But the moment the limits of the right of private defense provided under the sanited the act shall become an offense affording a right of private defense to the other party. For example, A entered the house of B with the intention of committing theft. B and others members of his family surrounded and attacked A with latis. Finding his life in danger, A whipped his revolver and fired causing the death of B. Here A will be liable for committing murder because the situation which gave him the right of private defense as he apprehended danger of his own death was the result of his own wrongful life. as against that it is argued that because B has exceeded his right of private defense of property which the law afforded him in case of apprehension of theft A was justified in defending his life. It is submitted that this view appears to be erroneous because the law does not give this right to an offender.

[00:18:42]In this case, the thief had already come prepared with a revolver that he had the intention of not only committing theft.

[00:18:52]But if in committing theft, he had the intention of not only but he has while in committing the theft, he may use the revolver to save himself if the need be arise.

[00:19:10]A person who is an aggressor and who seeks an attack on himself by his own aggressive attack cannot rely upon the right of private defense. In a very important case in a state of P versus Pusu, B was fired upon by P and S but P was deprived of his rifle due to intervention of some persons.

[00:19:37]Subsequently, however, he managed to obtain the pistol of S and fired at B who died while he was being carried to hospital. He was held to have no right of private defense in these circumstances.

[00:19:54]According to second limitation as stated that the right cannot be claimed when a person had himself quoted the attack.

[00:20:04]The Supreme Court in Bhawar Singh versus the state of Madhya Pradesh held that the right of private defense is a self-defense. It is neither a right of aggression nor of reprisal.

[00:20:19]There is no right of private defense where there is no apprehension of danger. The right is available to only one who is suddenly confronted with the necessity of averting an impending danger not of self creation. Necessity of private defense must be present real and apparent.

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