96.Things done in private defence.—Nothing is an offence which is done in the exercise of the right of private defence.

COMMENTS

Burden of proof.—Burden of proof is on the accused. In the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence, the Court shall presume the absence of such circumstances. Burden of the accused stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.

[Satya Narain Yadav v. Gajanand and another, 2008 (3) Crimes 295 : 2008 (10) SCALE 728 : 2008 AIR SCW 5562 : AIR 2008 SC 3284].

Burden of proof.—For ascertaining availability of private defence the injuries received by the accused, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors Right to private defence is a valuable right and should not be construed lightly. [Dinesh Singh v. State of U.P., 2008 (5) Supreme 584].

Injuries sustained by accused—Non-explanation of.—Non- explanation may not affect prosecution case in all cases. Principle applies to cases where injuries sustained by accused are minor and superficial or where evidence is so clear and cogent, independent and disinterested, so probabilise, consistent and credit-worthy.

[Shivanna v. State of Karnataka, 2007 (1) Crimes 9 (SC) : 2007 (1) SLT 641 : 2006 (10) JT (SC) 507 : 2006 (12) SCALE 247].

Nature of.—If the fact show that in the guise of self- preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has been eliminated, the plea of right of private- defence can legitimately be negatived. The right of self-defence is a very valuable right, and should not be construed narrowly.

[Ram Pyare Mishra v. Prem Shanher and others, 2003 (9) JT (SC) 263 : 2008 (3) Crimes 343].

No-long plea of self-defence.—The Section 96 does not define the expression ‘right of private defence’. It merely indicates that nothing is an offence which

is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, It is open to the Court to consider such a plea.

[Arun v. State of Maharashtra, 2009 (2) SCC (Cri) 536 : 2009 (4) JT (SC) 78 : 2009 (2) Crimes 6 : 2009 (4) SCC 615].

No need to raise this plea specifically.—Due weightage has to be given to, and hyper-technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preser- vation, what really has been done is to assault the original aggressor, even after the reasonable apprehension has disappeared, the plea of right of private defence can be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. Ram Pat v. State of Haryana, AIR 2009 SC 2847 : 2009 (7) SCC 614 : 2009 (3) SCC (Cri) 488 : 2009(7) JT (SC) 579].

Plea not raised specifically.—Section 105 of the Evidence Act casts the burden of proof on the accused who sets up the plea of self-defence and in the absence of proof, it may not be possible for the Court to presume the correctness or otherwise of the said plea. No positive evidence although is required to be adduced by the accused; it is possible for him to prove the said fact by eliciting the necessary materials from the witnesses examined by the prosecution. He can establish his plea also from the attending circumstances, as may transpire from the evidence led by the prosecution itself.

[Ram Pat v. State of Haryana, AIR 2009 SC 2849 : 2009 (2) JT (SC) 579 : 2009 (7) SCC 614 :2009 (3) SCC (Cri) 488].

Private defence cannot be sustained—Plea of.—Already extracted the finding

of the trial Court and agree with the trial Court that there is nothing unnatural or improbable in the version a given by PW 6. Too much cannot be read into the statement of PW 6 that there was no ‘special reason’. The omission to spell out ‘special reason’ for requesting her parents and brothers to help her in agricultural operations is no ground to disbelieve her evidence, especially in view of the evidence on record that her kith and kin from the parents’ side were looking after some of her view of mental incapacity of husband.

[Dattu Shamrao Valake v. State of

Maharashtra, 2005 Cri LJ 2555 (SC)].

Plea when acceptable.—Plea should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. If the fact

situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private- defence can legitimately be negatived.

[Shajahan v. State of Kerala, 2007 (3) SCALE 618 : 2007 (2) Supreme 792 : 2007 Cri LJ 2291 : 2007 (2) Crimes 344 (SC)].

Proof of claim—Burden of.—To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to proper grounds for apprehending that either death or grievous hurt would be caused to him. Burden is on the accused to show that he had a right of private defence which extended to causing of death.

[Jesu Asir Singh v. State, 2007 Cri LJ 4310 : 2007 (8) SLT 87 : AIR 2007 SC 3015 : 2007 (10) JT (SC) 262 : 2007 (10) SCALE 110 : 2007 (5) Supreme 836 :2007 (3) Crimes 333 (SC)].

Proof that seeing harm right of defence was urgent.—Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further proper appre- hension from the side of the accused.

[Shajahan v. State of Kerala, 2007 Cri LJ 2291 : 2007 (3) SCALE 618 : 2007 (2) Supreme 792 : 2007 (2) Crimes 344 (SC)].

Private defence—Availability of.—Right of private defence is a defensive

right, it is neither a right of aggression nor of reprisal. Right of private defence is available to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. Necessity must be present real or apparent.

[Dharam v. State of Haryana, 2007 Cri LJ 791 : 2007 (1) SLT 150 : AIR 2007 SC 397 : 2007 (1) JT (SC) 299 : 2006 (13) SCALE 280 : 2007 (2) SRJ 57 : 2007 (1) Crimes 363 (SC)].

Private defence—Consideration for.—Issue of private defence even if not raised, burden of proof of availability of right of private defence, lies on offence which is done in exercise of right of private defence. Whether in a particular case, a person legitimately acted in exercise of right of private defence is a

question of fact to be determined on the facts and circumstances of each case. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Burden of proof is on the accused, who set up plea of self defence.

[Naveen Chandra v. State of Uttaranchal, 2007 Cri LJ 874 : AIR 2007 SC 363 : 2006 (12) SCALE 456 : 2007 (1) Crimes 207 (SC)].

Private defence—Nature of.—Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression ‘right of private defence’. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the

right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea.

[Shivanna v. State of Karnataka, 2007 (1) Crimes 91 (SC) : 2006 (10) JT (SC) 507 : 2006 (12) SCALE 247 : 2007 (1) SLT 641].

Private defence—Plea of.—The question, whenever a right of private defence is claimed, must be judged from the nature of occurrence, the circumstances in which it had occurred and whether the person claiming such

right has acted legitimately. Attending circumstances would also be relevant for judging the same. It is well-settled that the burden to prove the same is on the person who raises such plea. For the purpose of proving the same, the accused may rely upon the materials on records brought by the prosecution in addition to examining the witnesses and adducing positive evidences, if any. A person has a right of private defence of body under Section 97 and in the event it is found that he was entitled to exercise the same, he necessarily must be held to have a right to cause death in terms of Section 100 of the Indian Penal Code, if there was a reasonable apprehension that death or grievous hurt would be caused.

[Kulwant Singh v. State of Punjab, 2004 SCC (Cri) 1441 : AIR 2004 SC 2875 : 2004 (2) Crimes 88 : 2004 (9) SCC 257].

Private defence—Right of.—Burden of proof is on the accused, who sets up the plea of self-defence, in absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. Court shall presume the absence of such circumstances. It is for the accused to place necessary evidence on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution.

[Shajahan v. State of Kerala, 2007 Cri LJ 2291 : 2007 (3) SLT 180 : 2007 (3) SCALE 618 : 2007(2) Supreme 792 : 2007 (2) Crimes 344 (SC)].

Private defence—Right of.—It is a right of defence, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

[Shivanna v. State of Karnataka, 2007 (1) Crimes 91 (SC) : 2007 (1) SLT 641 : 2006 (10) JT (SC) 507 : 2006 (12) Scale 247].

Private defence—Right of.—Right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or

availed as a pretext for a vindictive. aggressive or retributive purpose of offence expected to repel unlawful aggression and not as retaliatory measure. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

[Krishna v. State of Uttar Pradesh, 2007 Cri LJ 3525 : AIR 2007 SC 2452 : 2007 (9) JT (SC) 184 : 2007 (8) SCALE 634 : 2007 (5) Supreme 589 : 2007 (7) SRJ 184 : 2007 (3) Crimes 77 (SC)].

Private defence—Right of.—The injuries inflicted on deceased is not disputed. She was not and could not have been armed with any weapon. She did not take any part. She ever did not incite her sons to assault the accused persons. If the informant party was the

aggressor, there was no reason as to why she would run towards the place where the fight was taking place, resulting in causing of injuries on the person of Partap Singh. She apparently tried to intervene seeing her sons being attacked with sharp cutting weapons. She had been inflicted with as many as five sharp-cutting injuries, three on the leg and two on the wrist. There does not appear to be any reason as to why an aged lady was done to death.

[Kulwant Singh and others v. State of Punjab, AIR 2004 SC 2875 : 2004 (1) JT (SC) 583 : 2004 (2) Crimes 58 : 2004 SCC (Cri)1441 : 2004 (9) SCC 257].

Private defence—Right to.—The means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his

property cannot be .weighed in golden scales. It is not possible to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot; his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.

[Sikandar Singh and others v. State of Bihar, 2010 (3) SCC (Cri) 417 : 2010 Cri LJ 3854 : 2010 (7) JT (SC) 637 : 2010 (3)

Crimes 139 : 2010 (7) SCC477 : AIR 2010 SC 3580].

Private defence—Right of.—The statement of the appellants recorded under Section 313, Criminal Procedure Code, 1973, proves their presence and participation in the fight. These two factors clearly prove that the appellants went and attacked with lethal weapons the deceased and his family members in the latter’s fields. Court is convinced that in the light of the evidence on record they were the aggressors. Thus, being members of the aggressors’ party none of the appellants can claim right of self-defence. Right to defend does not include a right to launch an offensive or aggression. Therefore, no hesitation in holding that the appellants have failed to

establish that they were exercising right of private defence.

[Dharam v. State of Haryana, 2007 Cri LJ

791 : 2007 (1) SLT 150 : AIR 2007 SC

397:2001 (1) JT (SC) 299 : 2006 (13) SCALE

280 : 2007 (2) SRJ 57 : 2007 (1) Crimes 363

(SC)]. Private defence—Right of.—To find

whether right of private defence is available? The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and if the accused had time to have recourse to public authorities are all relevant factors to be considered.

[Ranveer Singh v. State of M.P., (2009) 2 SCC (Cri) 110 : 2009 Cri LR (SC) 418 : AIR 2009 SC 1658 : 2009 (3) SCC 384 : 2009 Cri LJ 1534].

Private defence—Scope of.—Judicious plea of right of private defence cannot be based on surmises and speculation. To find whether right of private defence available to accused, entire incident to be examined with care and viewed in proper setting.

[Shivanna v. State of Karnataka, 2007 (1) Crimes 91 (SC) : 2007 (1) SLT 641 : 2006 (10) JT (SC) 507 : 2006 (12) SCALE 247].

Private defence—Test to decide available right of.—The means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is not prudent to lay down abstract parameters which can in be applied to determine as to whether the means and force adopted by the

threatened person was proper or not. Answer to such a question depends upon the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindicative or malicious.

[Ram Pat and others v. State of Haryana, AIR 2009 SC 2849 : 2009 (2) JT (SC) 579 : 2009 (7) SCC 614 : 2009 (3) SCC (Cri) 488].

Private defence "a question of fact"—Right of.—Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence does not define the expression ‘right of private defence’. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a

particular set of circumstances, a person legitimately acted in the exercise of the right of private legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. It is not necessary for the accused to plead in so many words that he acted in self- defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.

[Shajahan v. State of Kerala, 2007 Cri LJ 2291 : 2007 (3) SLT 180 : 2007 (3) SCALE

618 : 2007 (2) Supreme 792 : 2007 (2) Crimes 344 (SC)].

Right of private defence—Construction of.—The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with

any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.

[Naveen Chandra v. State of Uttaranchal, 2007 Cri LJ 874 : AIR 2007 SC 363 : 2006 (12) SCALE 456 : 2007 (2) SRJ 517 : 2007 (1) Crimes 207 (SC)].

Right of private defence—Establishment of.—An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the

attack or for forestalling the further reasonable apprehension from the side of the accused.

[Shivanna v. State of Karnataka, 2007 (1) SLT 641 : 2006 (10) JT (SC) 507 : 2006 (12) SCALE 247 : 2007 (2) Crimes 91 (SC)].

Right of private defence—Exercise of.—Private defence may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property.

[Ananta Deb Singha Mahapatra v. State of West Bengal, 2007 (3) Crimes 7 (SC) : 2007 (7) SLT 31 : AIR 2007 SC 2524 : 2007 (8) JT (SC)633 : 2007 (8) Scale 448 : 2007 (5) Supreme 7].

Right of self defence.—No benefit can be derived by the appellant on the legal

position expressed by the Court, with reference to the plea of self- defence. Herein, there is no evidence to demonstrate, that the accused- appellant and the co- accused were actually attacked, and it was as a matter of self-defence that they fired at the crowd, with their pistols.

Since it was not disputed by the accused-appellant, that three fatal (besides other) injuries, were caused by the accused- appellant and his co-accused, the onus lies on the appellant to demonstrate the reason and the justification for their action. The evidence produced by the prosecution demonstrates, that the accused had fired gunshots indiscriminately, on being angered by the gathering, which was trying to persuade them from carrying

out their singular objective — to cause harm to the person of PW 15. Having accepted, that they had actually fired at the neighbours and the villagers, who had gathered at the place of occurrence, it does not lie in their mouth to raise such a plea. For the aforesaid reasons, no merit even in the instant contention.

Any justification in the submission projected by appellant, in a different perspective. The prosecution has clearly demonstrated through the testimony recorded on oath, that none of the persons gathered at the place of occurrence was armed in any manner.

[Brij Lal v. State of Rajasthan, AIR 2016 SC 3875 : 2016 (6) Supreme 365 : 2016 (8) JT (SC) 183 : 2016 (8) Scale 83 : 2016 Cri LJ4832].

Right of self-defence.—The accused only needs to show that the preponderance of probabilities is in side of his plea. The right of self-defence is a very valuable right, serving a social purpose and should not be taken narrowly.

[Genda Singh and others v. State of U.P., 2008 Cri LJ 3618 : 2008 (8) JT (SC) 123 : 2008 (3) Crimes 199 : 2008 (3) SCC (Cri) 934].

Right to private defence.—Right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket. While a victim of aggression has a right of private defence or self- defence, if that victim exceeds right of private defence or self-defence by using excessive force or retaliatory measures, he then becomes an

aggressor and commits a punishable offence. When State uses such excessive or retaliatory force leading to death, it is referred to as an extra-judicial killing or an extra-judicial execution. There must be a reasonable connection between act and official duty. Causing death of a person is certainly an offence but whether there was a reasonable connection between death and official set or whether excessive force or retaliatory force was used in the act has to be determined at an appropriate stage. It does not matter whether victim was a common person or a militant or a terrorist, nor does it matter whether aggressor was a common person or State. Law is the same for both and is equally applicable to both. To provide assurance to people, such an allegation

must be thoroughly enquired into. This is requirement of a democracy and requirement of preservation of rule of law and preservation of individual liberties.

[Extra- Judicial Execution Victim Families

Association (EEVFA) v. Union of India,

2016 (4) Crimes 256 (SC)].

Right to private defence exceeded.—The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of

the right, care has been taken in IPC not to provide a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

[Ranveer Singh v. State of M.P., (2009) 2 SCC (Cri) 110 : 2009 Cri LR (SC) 418 : AIR 2009 SC 1658 : 2009 (3) SCC 384 : 2009 Cri LJ 1534 (SC)].

Scope of.—In order to find whether right of private defence is available or not, the injuries received by the accused, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.

[Satya Narain Yadav v. Gajanand and another, AIR 2008 SC 3284 : 2008 (3)

Crimes 295 : 2008 (10) SCALE 728 : 2008 AIR SCW 5562 : 2008 (8) JT (SC) 432].

Self-defence—Burden to establish of

right.—Burden of establishing the plea of self defence is on the accused but it is not as onerous as the one that lies on the prosecution. Accused may discharge the onus by showing preponderance of probabilities in favour of that plea on the basis of material on record.

[Dharam v. State of Haryana, 2007 Cri LJ 791 : 2007 (3) SLT 150 : 2007 (1) JT (SC) 299 : 2006 (13) SCALE 280 : 2007 (2) SRJ 57 : 2007 (1) Crimes 363 (SC)].

Self defence plea, be construed narrowly.—The burden of establishing the plea of self defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the

prosecution is to prove its case beyond reasonable doubt, the accused need not establish the plea of self defence to the hilt and may discharge the onus in favour of that plea on the basis of the material on record. In Vidhya Singh v. State of Madhya Pradesh, 1971 (3) SCC 244, the Court observed that right of self defence should not be construed narrowly because it is a very valuable right and has a social purpose.

[Sikandar Singh and others v. State of Bihar, 2010 (7) JT (SC) 637 : 2010 (3) Crimes 139 : 2010 (7) SCC 477 : 2010 (3) SCC (Cri) 417 : 2010 Cri LJ 3854 : AIR 2010 SC 3580 : 2010 (3) SCC (Cri) 417].

When plea under is not available.—There is no reason to differ from conclusion of Courts below that appellants were aggressors and attacked

the deceased first. As per prosecution, death of deceased took place in course of said incident. Question of exercising any right of private defence as claimed by the appellants is without any substance. Appeal sans merit and liable to be dismissed.

[Krishna v. State of Uttar Pradesh, 2007 Cri

LJ 3525 : 2007 (1) SLT 1 : AIR 2007 SC 2452

: 2007 (9) JT (SC) 184 : 2007 (8) SCALE 634

: 2007 (5) Supreme 589 : 2007 (3) Crimes

77 (SC)].