2. ‘X’ is forcibly carried away by her husband ‘Z’.

She resists, and in order to save herself, ‘X’ throws

a stone at ‘Z’ which resulted in Z’s death. Did ‘X’ exceed her right of private defence? Discuss the
liability of ‘X’ if any, with relevant procedures and case law.
Right of Private Defence-
In the provided problem, X does not exceed the right of private defence provided to her. Applying
section 100, which gives protection, when the right of private defence of the body extends to causing
death of the assailant. For deciding the liability of ‘X’ we have to understand the essentials of section
100 IPC.
“The right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated,
namely: —
(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;
(Secondly) —Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
(Thirdly) — An assault with the intention of committing rape;
(Fourthly) —An assault with the intention of gratifying unnatural lust;
(Fifthly) — An assault with the intention of kidnapping or abducting;
(Sixthly) — An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to the public
authorities for his release.”1
Essentials to invoke the section 100 of IPC- To invoke this section these conditions must
exists-

 The person exercising the right of private defence must be free from fault bringing about the
encounter.
 There must be an imminent threat or danger to life, either real or so apparent as to create an
honest belief of exceeding necessity (great) necessity.
 There must be no other method to escape by retreat.
In case of Vishwanath v. State of Uttar Pradesh2,
Facts of the case- Accused ‘A’ has a sister ‘S’ who was married to ‘G’. The relations
between ‘S’ and ‘G’ were strained, due to which ‘S’ was living with her brother. G had repeatedly
requested the return of his wife but the accused refused to comply. On the day in question G went to
the house of the accused. He went inside and dragged his wife forcibly. Seeing this, the accused took
his small knife out of his pocket and gave one blow to ‘G’, which unfortunately landed on his heart. G
died of the injury in hospital.
It was held by the apex court that the right of private defence under clause 5 of section 100 arises
against any assault made for the purpose of abduction. The defender does not have to consider
whether the intention of the offender was or was not to commit an offence under one or another types
of kidnapping or abduction as given in sections 364 to 369, IPC.

1
Section 100, Indian Penal Code.
2
AIR 1960 SC 67: (1960) 1 SCR 646:1960 SCJ 126.
 Supreme court has also discussed the alternative view in the case of Ram Saiyan v. Emperor3.
The opinion of the court in this case was that the word abduction used in section 100(5) refers to the
offence mention in section 364, 365,366, 367 and 369, not the offence mentioned in section 362 of
IPC. As the offence of the ‘abduction’ is an auxiliary act not punishable in itself, but when it is
accompanied by a certain intention to commit another offence, it per se becomes punishable as an
offence.
But the apex court in Vishwanath dismissed this approach and held:
“On a plain reading, however, of the clause [ clause 5] there does not seem any reason for holding that
the word ‘abduction’ in section 362. It is true that the right of private defence of a person arise only if
an offence against the human body is committed.” The court also held that the right of private defence
under clause 5 of section 100 arises against any assault made for the purpose of abduction. The
defender does not have to consider whether the intention of the offender was or was not to commit an
offence under one or another types of kidnapping or abduction as given in section 364 to 369, IPC.
Thus, in the given situation, there will be no liability on ‘X’. She will have the right of private-defence
of her own body and her right would be extended to causing death, provided that the conditions of
section 99 were observed and that not more harm than was necessary for the purpose of defence has
been administered.
Whether was defence was excessive- In the given problem ‘X’ throws a stone at ‘Z’ to save herself.
The act of ‘X’ comes within the restriction of section 99, IPC. Considering that ‘X’ had thrown the
stone, if had been a little this way or that, could not have been fatal, it could not be said that she
inflicted more harm than was necessary for the purpose of defence. In the above-mentioned case of
Vishwanath the court held that, “these things cannot be weighed in too fine a set of scale or ‘in golden
scales’”.
Thus, the defence used by ‘X’ was not excessive in nature and the protection of section 100(5) would
be provided, and she will not be held liable for the murder of ‘Z’.

3
AIR 1948 All. 2015