Chapter One

Introduction
1.1 Background

The legal term self defense refers to a type of affirmative defense used to explain one person’s
use of force against another person. For example, self defense describes a situation where in one
person reasonably uses force to defend himself against an attack by another person on the
subway. A person might use non-deadly force, or deadly force, to defend himself, depending on
the situation.

The basic notion of the provision of general defense is to provide privilege to the accused if the
mens rea, the essential part of every criminal liability, is absence in the offence. Where one is
charged with a criminal offense, one may seek to deny liability pleading that the crime didn't
happen or it happened but one did not do it or one did it but one did not mean to do it. This
means either the defendants negate an element of the crime charged, usually the actus reus or
mens rea or admits the element of crime charged but argues that there are other factors to
consider. For instance, somebody might claim that he/she killed D to protect him or her to be
killed by D. However, the defendant must prove the claim to get excuse with the primary
exception of insanity. If the accused is able to introduce the evidence that is needed for the claim
to defense and if he/she succeeds, it will preclude a conviction, regardless of the crime charged.

Black’s Law Dictionary1 defines Self-defense as the use of force to protect oneself, one’s family or one’s
property from a real or threatened attack. Christina McAlhone and Rebecca Huxley-Binns2  in their book
def ine self defense as “to denote the situation in which D reacts to an attack from P, but in fact the defenses
(there is more than one) are far wider and cover the use of force against P who is threatening a third party,
where P is damaging D’s or another’s property or is committing or is about to commit any crime,
whether one of violence or not.”
 The source of this right is a comparison of the competing interests of the aggressor and the defender, as modified
by the important fact that the aggressor is the one party responsible for the fight. As the party morally at
fault for threatening the defender’s interests, the aggressor is entitled to lesser consideration in the

1
B A Garner, Black’s Law Dictionary, 9th edn (West Group, 2009) pg1481.
2
C McAlhone and R Huxley, Criminal Law: The Fundamentals, 2nd edn (Thomson Reuters, 2010) pg 431.
1
balancing process.3 Self-defense, properly understood, is alegal right, and as with other legal rights the question
whether a specific state of facts warrants its exercise is a legal question. It is not a question on which a state is
entitled, in any special sense, to be a judge in its own cause. 4 It is a defense that is considered rather both
justificatory and excusatory. In the words of Lord Bingham-“it is a defense that if successful, justifies D’s
conduct”.5

1.2 Statement of Problem

This study will fundamentally deal with the following two questions:

 What is the limitation for the immense of self defense?

 Are there standard or there requires standard for the conditions to apply the principle of
self defense?

1.3 Objective

 To study the right to self defense in reference to the established doctrine of the criminal
law.

 To study the principle of self defense and legal provisions

1.4 Rationale

This study will also draw-out the limitations on the right of private defence of person or property
that if there is sufficient time for recourse to public authorities, the right is not available; that
more harm than that is necessary should not be caused; that there must be a reasonable
apprehension of death or grievous hurt or hurt to the person or damage to the property
concerned. So, this research will benefit in both ways for getting the right to self defense and not
getting it.

1.5 Limitation

This study is limited within followings premises.

 This study is limited basically within the area of Right to self defense.

 This study is carried out for the purpose of partial fulfillment of prescribed university
course; the finding of this study cannot be generalized.

3
G P Fletcher, Rethinking Criminal Law (Oxford:OUP,1978) pg 857-858.
4
J L Brierly, The Law of Nations, 5th edn (Oxford: The Clarendon Press, 1955), pg 319.
5
Hasan (2005)2 W.L.R 709.
2
  Due to limited time, the study does not consist of the field study.

1.6 Organization

The study has divided into four chapters. The first chapter deals with background, statement of
problem, objective, rationale, limitation, organization, method under the title "Introduction". The
second chapter deals with introduction of self defense, Historical Origin and advent of the
defense of Self-Defense and The Legal Framework governing Self-Defense. The third Chapter
consists of Legal Provisions Regarding Right to Self Defense and Self Defense and Precedent.
And finally chapter four in the title of "Conclusion".

1.7 Methods

The study itself has applied secondary data collection techniques and based on the doctrinal
method. In addition to that it embraces an exploratory research design.

3
 Chapter Two

2.1 Right to Self Defense

2.1.1 Introduction of Self Defense:

The right of self defense is the right for a person to use reasonable force to defend himself, his
property, or the lives of others. If necessary, the use of deadly force can be permitted, depending
on the circumstances. Once someone uses excessive force, which is more force than the situation
truly calls for, then he gives up his right of self defense. In that case, he goes from being the
person defending himself to the aggressor in the action. If a defendant exercises his right of self
defense as a response to a threat of death or serious harm, then he is said to have a “perfect self
defense” justification.

In most jurisdictions, defense of self or others is an affirmative defense to criminal charges for
an act of violence. The right of private defense is based on the cardinal principle that it is the
primary duty of a man to protect him. Self-preservation is the prime instinct of every human
being.6 The Right of defense is absolutely necessary.7The right of self-defense serves a social
purpose. It always has power to encourage the right sprit in a free citizen simultaneously protect
in good faith. A man is justified in resisting by force anyone who manifestly intends and
endeavors by violence or surprise to commit a known felony against either person ,habitation or
property, he is not obliged to retreat, and may not merely resist the attack where he stands but
may indeed pursue his adversary until the danger is ended. For example A enters by night a
house in which he is legally entitled to enter B, in good faith, taking A for house breaker, attacks
A. Here B attacking A under this misconception commits no offence. But A has the same right
of private defense against B, which he would have if B was not acting under the misconception.

There will therefore be no valid defense, and the defendant will be liable for the crime. It is quite
difficult to define the reasonable force nevertheless the defendant must have faced with an
imminent attack against a protected interest and had no choice but to defend him/her. There are

6
James Martin v state of Kerala (2004) 2 SCC 203.
7
Bentham, in his Principle of the penal Code says: The vigilance of Magistrates can never make up for the vigilance
of each individual on his own behalf. The fear of the law can never restrain bad mean as the fear of the sum total of
individual resistance. Bentham,Principles of thec penal code, p 269 cited on PSA Pillai,s criminal Law, KI
Vibhuti,10th edition Lexis Nexis Butterworths Wadhwa,Nagpur,India,p198,2011.
4
certain principles and limitations in every law that relates to private defense. 8 However, it is
extremely difficult how to measure or build up concrete conception on what is reasonable
amount of force, it is jury who decides the amount of force used is whether reasonable in the
prevailing circumstances or not. The very commonsense of jury can readily understand what was
reasonably necessary at the time of incident. In assessing whether a defendant had used only
reasonable or more. The jury should assess whether a person who is being attacked mulled over
subtlety the exact measure of his necessary defensive action or not. Though it seems to be a
matter of Subjective interpretation however, it is essential that the defendant must have been
under pressure from imminent attack where there were no other options available for protecting
himself or herself from death or grievous injury and their property and the amount of force must
be proportionate and reasonable. If the jury is satisfied beyond reasonable doubt that there is no
reasonable, believe by the accused of such an attack no question of self-defense arises.

If the jury is not satisfied beyond reasonable doubt that there is no such reasonable belief by the
accused, it must then consider whether the force in fact used by the accused was reasonably
proportionate to the danger, which he believed he faced. If the jury is not satisfied beyond
reasonable doubt that more force was used than was reasonably proportionate it should acquit. If
the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be
either manslaughter or murder, that depending upon the answer to the final question for the jury
- did the accused believe that the force, which he used, was reasonably proportionate to the
danger, which he believed he faced? If the jury is satisfied beyond reasonable doubt that the
accused did not have such believe the verdict will be murder. If it is not satisfied beyond
reasonable doubt that the accused did not have that belief the verdict will be manslaughter.”

Justification does not convert the criminal use of force to lawful use of force, however, if the use
of force is justified, it affirmatively permits acquittal of defendants. The defense of justification
would fail, if a defendant intentionally killed a petty thief who did not commit robbery and who
did not appear to be a physical threat. It was preplanned then there is no ground available for self
defense; it is rather merely a crime. However, it is not absolutely necessary that the defendant
be attacked first. A man about to be attacked does not have to wait for his assailant to strike the
first blow or fire the first shot; circumstances may justify a pre-emptive strike. Likewise, the fact
and circumstance presented by the defendant and the prosecutor may also help finding out the
rationality.

5
2.2 Historical Origin and advent of the defense of Self-Defense

Self-defense implies the use of essential and reasonable defensive force against an aggressor
who is perpetrating an illegitimate attack for the purpose of repelling this attack and thus
protecting a legitimate interest.9 The defense of Self-defense traces its origin from the principle
of natural law. Although some modern scholars deny that natural law exists, there is no dispute
that the Founders strongly believed in it.10 Both in the past and in the present, the right to Self-
defense is undisputed.13 Since ancient times, Jewish religious law has recognized the rule: ‘If
someone comes to kill you, kill him first.’ The accepted view of Self-defense as a natural right
that preceded the social contract is based on the writings of a long line of thinkers. 11 Even major
philosophers, like Hobbes and Locke, who have written about both Self-defense and the social
contract, perceived Self-defense not as a right against the state deriving from the social contract,
but rather, as an independent right that already existed in a state of nature and was merely
preserved after the establishment of the state. 12 ‘Natural law’ as a term of legal art was originally
based on Catholic legal thought.

2.3 The Legal Framework governing Self-Defense

The doctrine of Self-defense is a common law principal developed through judge-made law and
further enhanced by statute. The basic principles of self-defense were first set out in the authority
of R v Palmer and approved in R v McInnes 13 where the court ruled thus: ‘It is both good law
and good sense that a man who is attacked may defend himself. It is both good law and good
sense that he may do, but only do, what is reasonably necessary’. In the Palmer case, the
appellants were each separately convicted before the Supreme Court of Jamaica for murder and
sentenced to death. In both cases an issue of Self-defense was raised and left to the jury. In each
case in summing up, the trial judge referred to the defense of Self-defense which had been raised
but indicated that on the facts only two verdicts were open: guilty of murder or not guilty.
Applications for leave to appeal were dismissed by the Court of Appeal of Jamaica. Appeals

9
B Sangero, Self-Defence in Criminal Law (Oxford: Hart Publishing,2006) pg 45-52.
10
D B Kopel, The Natural Right of Self-Defense: Heller's Lesson for the World (2009) 59 Syracuse Law Review
1004. Available at SSRN: http://ssrn.com/abstract=1172255.
11
S Uniacke, Permissible Killing: The Self-Defence Justification of Homicide (Cambridge University Press,1994)
Pg 57,91.
12
K F Kimberly, Self-Defense And The State (2008) 5 Ohio State Journal of Criminal Law. Pg 449-457.
13
R v McInnes 55 Cr App R 551.
6
were brought by special leave to the Judicial Committee. In each case the only question raised
for determination was whether in cases of murder where an issue of Self-defense was left to the
jury it was in all cases obligatory to direct the jury that if they found that the defendant while
intending to defend himself had used more force than was necessary in the circumstances they
should return a verdict of guilty of manslaughter. On the issue raised in both appeals, which
were heard together, it was held by the Privy Council that dismissing the appeals, that there was
no rule that in every case where the issue of Self-defense was left to the jury that they had to be
directed that if they considered excessive force was used in defense they should return a verdict
of guilty of manslaughter; and that all that was needed in the summing up was a clear exposition,
in relation to the particular of the case, of the conception of necessary Self-defense. Decision of
the Court of Appeal of Jamaica was affirmed.

In England, there has been enacted the Criminal Law Act of 1967 which has express provisions
on the use of force in Self-defense. Section 3 of the Act states thus: ‘A person may use such
force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting
in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.’

Justice D.K. Magara in R v Andrew Mueche Omwenga14 held thus:

The law generally abhors the use of force or violence. There are, however, instances where the
use of reasonable force is justified. For instance, an accused charged with an offence may seek to
plead that he acted as he did to protect himself, or his property or others from attack or to
prevent a crime or to affect a lawful arrest. Such pleas when successfully raised provide a
justification for the accused conduct thereby rendering his act lawful. Since the use of lawful
force is not an offence, the accused will be acquitted of the offence as the element of actus reus
(the unlawful act) will be missing.

14
R v Andrew Mueche Omwenga Cr Case No 11 of 2008[2009] eKLR.
7
 Chapter Three

3.1 Legal Provisions Regarding Right to Self Defense

3.1.1 Nepalese Legal Provisions:

Chapter 2 on General Principles of Criminal Justice, (Muluki Penal Code, 2074)

24. Act done for private defence not considered to be offence:

(1) Any act done in the exercise of the right of private defense subject to this Chapter shall
not be considered to be an offence.

(2) Every person has a right to defend the body, life or property of his or her own or of any
other person against any illegal harm.

(3) The right of private defence under this Section shall be exercised only when there is a
reasonable apprehension or reasonable cause to believe that the body, life or property of
his or her own or of any other person cannot be defended against any illegal harm
unless any act is done immediately.

25. Restriction on the exercise of right of private defense:

(1) Notwithstanding anything contained in Section 24, the right of private defense is not
available in the following circumstances or against the following acts:

(a) Where there is time to have or likely to have recourse to the protection of
public authority immediately to defend the body or property of any one
against illegal harm at the time of causing such harm,

(b) Where harm caused to the body or property of a person was so caused by
reason that the harm doer was provoked by such person himself or herself,

(c) Where a public servant does an act in good faith in pursuance of a

judgment or order of a court,
8
 (d) Where a public servant does an act in good faith in the exercise of his or
her official power,

(e) Where any act is done by a person in pursuance of a direction given in good
faith by a public servant in the exercise of his or her official power.

(2) Notwithstanding anything contained in sub-section (1), a person shall not be deprived
of the right of private defense in the following circumstances:

(a) Where that person does not know or have a reasonable reason to believe that
the doer of the act referred to in clause (c) of sub-section (1) is a public servant
and he or she is doing the act in pursuance of the judgment or order of a court
or the doer does not disclose his or her identity or produce the authority under
which he or she acts even if so demanded,

(b) Where there is no reasonable reason to know or believe that the doer of the act
referred to in clause (d) of sub-section (1) is a public servant,

(e) Where there is no reasonable reason to know or believe that the doer of the act
referred to in clause (e) of sub-section (1) is doing such act by the direction of
a public servant or the doer does not state that authority under which he or she
acts or does not produce the authority under which he or she acts even if so
demanded.

(3) While exercising the right of private defence under Section 24 or this Section, more
force than reasonably necessary for such defence cannot be used.

26. No right to cause death:

(1) In exercising the right of private defence pursuant to this Chapter, no one shall have the
right to cause a person’s death.

(2) Notwithstanding anything contained in sub-section (1), if any act done in the exercise of
the right of private defence subject to sub-section (3) of Section 25, in any of the
following circumstances, causes the death of a person, such act shall not be considered
to be an offence:

9
 (a) Where there is reasonable cause to believe that an assault on oneself or another
person would cause the death of or serious injury or grievous hurt to oneself or
another person unless instant defense is exercised against such assault,

(b) Where any act is instantly done by the victim having reasonable cause to
believe that the assault is made with the intention of committing rape or at the
time of or after the commission of rape,

(c) Where hostage-taking or kidnapping is committed with the intention of causing

death, taking ransom for hostage-taking or kidnapping, committing rape,
causing grievous hurt,

(d) Where attempt is made to cause mischief by seizing, using a deadly weapon,
setting fire to or using explosive substance on, any building, tent which is used
for human dwelling or as the place for worship or pray or the custody of
property or a means of transport,

(e) Where it is necessary to defend against robbery,

(f) Where the circumstance requires an instant retaliation by a security personnel

deputed by order of the competent authority for the personal security of a
person or security of a property of the Government of Nepal, State
Government or Local Level or a body corporate under full or majority
ownership or control of the Government of Nepal, State, Government or Local
Level or public property in order to prevent an assault made on such person or
property.

Chapter 12 on Offences Relating to Human Body, (Muluki Penal Code, 2074)

179. Prohibition of causing death by grave provocation or in heat of passion:

(1) Notwithstanding anything contained in Section 177 or 178 (Homicide), a person who
causes the death of another person in any of the following circumstances shall be liable
to a sentence of imprisonment for a term of ten to fifteen years and a fine of one
hundred thousand to one hundred fifty thousand rupees:

10
 (a) Where the offender, while being deprived of the power of self-control by
grave and sudden provocation, causes the death of the person who gave
such provocation,

Provided that this clause shall not apply to the following circumstance:
(1) Where the offender is provoked by anything done in obedience to
the law or in the exercise of the right of private defense or anything
done or intended to be done by a public servant in the exercise of his
or her official duties,

(2) Where the offender himself or herself gives provocation to another

with intent to do harm to any one and anything done by that other
person upon being so provoked causes the death of any person.

(b) Where the offender in the exercise in good faith of the right of private defence
exceeds the limit of such power and causes the death of the person against
whom he or she is exercising such right of private defence,

(c) Where death is caused instantly in the heat of passion upon a sudden quarrel,
114 Provided that while doing any act referred to in this clause, the offender
must not have taken an undue advantage or acted in a cruel or unusual
manner.

(2) Notwithstanding anything contained in clauses (b) and (c) of sub-section (1), the
provisions contained in these clauses shall not be applicable to any case of murder
committed with premeditation or deliberate afterthought.

194. Sentence for causing hurt or grievous hurt by grave provocation or in heat of passion:

(1) Notwithstanding anything contained in Section 191 or 192 (Hurt and Grievous Hurt),
a person who causes hurt in any of the following circumstances shall be liable to a
sentence of imprisonment for a term not exceeding two years or a fine not exceeding
twenty thousand rupees or both the sentences in the case of a grievous hurt, and to a
sentence of imprisonment for a term not exceeding one year or a fine not exceeding ten
thousand rupees or both the sentences in the case of any other kind of hurt:

11
 (a) Where the offender, while being deprived of the power of self-control by grave and
sudden provocation, causes hurt to the person who gave such provocation or to any
other person by a mistake of fact or happens to cause injury to another person by
accident.

Provided that this clause shall not apply to the following circumstance:

(1) Where the offender causes hurt upon being provoked by anything done
in obedience to the law or in the exercise of the right of private defence
or any anything done or intended to be done by a public servant in the
exercise of his or her official duties,

(2) Where the offender himself or herself gives provocation to another

with intent to cause any harm to any one and anything done by that
other person upon being so provoked causes hurt to any person.

(b) Where the offender in the exercise in good faith of the right of private defence
exceeds the limit of such power and causes injury to any person,

(c) Where hurt is caused to any person instantly in the heat of passion upon a sudden
quarrel,

Provided that while doing any act referred to in this clause, the offender must
not have taken an undue advantage or acted in a cruel or unusual manner.
(2) Notwithstanding anything contained in clauses (b) and (c) of sub-section (1), the
provisions contained in these clauses shall not be applicable to any case of hurt or grievous
hurt caused with premeditation or deliberate afterthought.

12
3.2 Self Defense and Precedent:

3.2.1 Kousila Pun Magar V. HMG

In this case Ratna Bdr. died as a result of wound caused with carpenter's weapon (basila)
after two months of incidence. Kousila, the wife of deceased, claimed that she was attacked
by her husband at first thereafter she struggled with him to save herself. Ratna had sustained
severe injury on his throat and was unable to speak when outsiders entered in to the room.
He pointed out to Kousila for the injury. Kousial also had suffered several wounds on her
body. Court of first instance acquitted her. Mid regional court convicts her. The Supreme
Court acquitted her on the ground that the death had occurred after two months of the
incidence. The sign made by the deceased pointing to Kousila did not conclusively prove
that Kousila alone was responsible for the incidence. Witness deposited that when they first
saw the fighting couple, Ratna was holding the weapon.

3.2.2 Viro v The Queen (1978) 141 CLR 88

In Viro v The Queen(1978) six propositions were formulated by Mason CJ, Aickin and
Stephen JJ. They were expressed as follows that-

 It is for the jury first to consider whether when the accused killed the deceased the
accused reasonably believed that an unlawful attack which threatened him with death or
serious bodily harm was being or was about to be made upon him.
 By the expression “reasonably believed” is meant, not what a reasonable man would
have believed, but what the accused himself might reasonably believe in all the
circumstances in which he found himself.

13
 Chapter Four

4.1 Conclusion

The self-defence is a natural right, which is given by the nature to each and every natural living
things. We all know that even a tiny insect tries to protect by itself by self-defence if it is being
attacked. This is why is the self-defence is a natural phenomenon which is considered as a right
of every natural living things. Naturally, the plea of ‘self defence’ cannot be deprived from
human being. Respecting the’ self defence’ as a natural right of human being.

The right of private defense is recognized in every civilized system of law it is based on the
principle that every man or woman is expected to endowed with a certain amount of self-
reliance, encourage and capacity to defend himself and property. It may not be possible for the
state to give protection to all the individuals in the state at all times and at all places. Therefore,
the state confers on the individual the right of private defence (on account of the recognition of
this practical fact) and it follows from this that where such timely help can be obtained from the
state no one should take the law into his own hands.15

Nothing is an offence, which is done in the exercise of the right of private defence. In order to
find out whether the right of private defence existed or not the entire incident should be
examined with care and in its proper setting. The injuries received by the accused, the imminent
threat to his safety, 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 on a plea
of private defence. There are also some limitations on the right of private defence of person or
property, they are:

a) That if there is sufficient time for recourse to public authorities, the right is not available,
b) That more harm than that is necessary should not be caused,

c) That there must be a reasonable apprehension of death or grievous hurt or hurt to the
person or damage to the property concerned.

The first point is that there is no time to have recourse to the protection of the public authorities.
The second point is that the right of private defence only justifies the defence not offence. The
15
P.S. Atchuthen ,Criminal Law, Tripathi 8th ed, p 99.
14
force used in defence must be not only necessary for the purpose of avoiding the attack but also
reasonable and the right does not commence until there is a reasonable fear. The third point is
that there should be unlawful attack on life and property and you cannot claim the right of
private defence if you have yourself courted the attack. There must be reasonable apprehension
of danger on that unlawful attack.

Necessity:

There is no time to have recourse to the protection that is why the resistance is necessary. The
force is being used because it is necessary for protection of life and property. In order that, a
homicide may be justifiable on the ground of self-defence, the accused must have believed on
reasonable grounds that his life was in danger and the force used by him must have been
reasonably necessity for his protection.

Proportionality:

There is no more harm is inflicted than is necessary for the purposes of defence. The force used
was in fact necessary for defense, which was proportionally justifiable. There should not be used
of unnecessary force to answer the attack. The use of excessive force indicates that the defendant
has acted unreasonably in the circumstances .There will therefore be no valid defence and the
defendant will be liable for the crime. Excessive use of self-defence is no defence and if it results
in death constitutes murder. The defence should be reasonable and proportionally. A is gives a
slap on B’s face; B answers by using a gun. B is not justified in shooting.

15
Bibliography

Cline, Howard F., "Review", The American Historical Review, Vol. 76, No. 5 (Dec., 1971),
1626-1628.

Edward H. Schafer, The Golden Peaches of Samarkand: A Study of Tʻang Exotics (USA:
University of California Press 1963),  22.

Jacques Gernet, A History of Chinese Civilization (Cambridge: Cambridge University Press

1996),  294.

Marianne Giles, Criminal law, 4th edition (Newxeon: Nutshells), 65

Mark Edward Lewis, China's cosmopolitan empire: the Tang dynasty (Harvard: Harvard
University Press 2009), 170.

Michael Schill & Susan Wachter, Principles to Social Justice and Equity, 2nd edition (Newyork:
Dubli Publication 2001), 46.

P.S. Atchuthen ,Criminal Law, 8th edition (Tripathi: Publication Hous), 99.

Thomas, Mark G. et al. Proceedings of the Royal Society B: Biological Sciences (Anglos:
Perrybar Press 1601), 2657.

B A Garner, Black’s Law Dictionary, 9th edn (West Group, 2009), 1481.

C McAlhone and R Huxley, Criminal Law: The Fundamentals, 2nd edn (Thomson Reuters,
2010), 431.

J L Brierly, The Law of Nations, 5th edn (Oxford: The Clarendon Press, 1955), 319.

K F Kimberly, Self-Defense And The State (2008) 5 Ohio State Journal of Criminal Law, 449-
457.

B Sangero, Self-Defence in Criminal Law (Oxford: Hart Publishing,2006), 45-52.

G P Fletcher, Rethinking Criminal Law (Oxford:OUP,1978), 857-858.

16