General Exception

IPC
Amith Sriram
Assistant Professor.
 ▪ Suppose, you have been attacked by an assailant in aggression and by
your stimulus, you will definitely try to defend yourself. If, during that
defence, there is some hurt caused to the assailant, are you guilty of
causing hurt or offence to the aggressor?
▪ Therefore, to protect you or some other person who was at the same
Introduction position from getting penalised, Chapter IV of the Indian Penal Code,
1860 protects or makes an offence a non-offence.
▪ Section 76 to 106 provides for the ‘right of the people’ to protect his life
and limb and those of others.
 ▪ Generally, a crime is committed when it fulfils the two
essentials for constituting the crime. They are: Mens
Rea and Actus Reus. Apart from this, the crime
committed should be backed by justifications and
excuses. Therefore, the general exception under IPC is
Types divided under two heads:
1. Excusable exception
2. Justifiable exception
 ▪ Excusable exceptions: Those exceptions from which the bad
character or bad intention of the person committing the crime
cannot be inferred are said to be excusable exception to the
crime. They include:
• Mistake of fact;
Excusable • Infancy;
exceptions • Accident;
• Insanity;
• Intoxication.
 ▪ Justifiable Exceptions: Those exceptions in which crimes
committed are wrongful in normal conditions but due to different
circumstances, it was considered to be tolerable and acceptable to
everyone are said to be justifiable exceptions. They include:
• Judicial act
• Necessity;
Justifiable • Consent;
Exceptions • Duress;
• Communication;
• Trifles;
• Private defence.
 ▪ Burden of Proof
▪ The person who is accused of committing the
offence has the responsibility of proving that
he/she was struck under different circumstances
Burden of or within special provision or exception
Proof provided by this part. For instance, an insane
person, if accused, has to prove and establish
by any means that he/she is not mentally sound
or he had no mens rea to commit that crime.
 ▪ Section 76 and 79 deals with mistake of Fact as a defence to the offence.
According to this exception, a person can be excluded from conviction if the
act done by him was not intended i.e., the accused had no mens rea to perform
that act. This concept is based on the Latin maxim of ignorantia facti excusat.
The condition required for attracting this Section is that if the circumstances
and the facts were known then the act committed by the accused might have
been preventive in doing that action. This defence is mostly provided when
Mistake of Fact proof of intention or foresight is unnecessary.

▪ In a landmark English case of

R v Tolson (1889) 23 QBD 168 where a woman remarried believing her
husband to be dead. The accused woman was convicted of bigamy. But the
court held that a bona fide belief was made on reasonable grounds that her
husband is dead after desertion for seven years.
 ▪ Acts Done by Persons Bound by Law or Justified by Law
▪ According to Section 76 of the Act, an accused person in good faith believes
himself/herself to be bound by law to that act. Whereas, Section 79 of the Act lays
down that an accused person in good faith believes himself/herself justified by law to
that act.

▪ There is a thin line of distinction between persons committing the offence considered
himself to be bound by law or justified by law. “Bound by law” means that although
the true state of the facts show that the offence is committed yet the person under
mistake of fact believes that he was bound by law to act in that particular way. For a
clear understanding, a servant kills his master at night mistaking him for a burglar
Bound by law & who entered his house. Here, the servant was bound by law to protect his master’s
house from burglary.
Justified by Law On the other side, “justified by law” means that a person committing the act was
empowered by law, done on adequate reasons sufficiently supported by evidence to do
that act.

Example, A sees Z commit what appears to A to be a murder. A, in the

exercise, to the best of his judgment exerted in good faith of the power
which the law gives to all persons of apprehending murderers in the act,
seizes Z, in order to bring Z before the proper authorities. A has committed
no offence, though it m day turn out that Z was acting in self-defence.
 ▪ Acts done under Order of a Superior Authority
▪ The maxim respondeat superior is not applicable as a reason in the cases
of mistake of fact. Cases, where illegal acts are done by a person on the
orders of a parent or a master or a superior, will not be considered to be
defence or a reason to be entitled for acquitting under mistake of fact.
However, if the order from the superior is in conformity with law, then
the accused subordinate person is protected but if the order from the
superior is not in accordance with the law, then the subordinate person
performing the act cannot claim protection under mistake of fact
believing to be bound by law to perform that act.
Superior ▪ Moreover, in the case of State of West Bengal v. Shew Mangal Singh, the
Authority Supreme Court held that if order by superior is lawful then its obedience
is obviously lawful.
▪ (a) A, a soldier, fires on a mob by the order of his superior officer, in
conformity with the commands of the law. A has committed no offence.
▪ (b) A, an officer of a Court of Justice, being ordered by that Court to
arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has
committed no offence.”
 ▪ Act of State
▪ An act of State is an act done by any representative of the
Government’s authority, civil or military, either
sanctioned or ratified by the Government. To claim
protection under this section, one has to establish:
Act of State • The accused had authority to act on behalf of the state.
• The accused action was outside the law.
 ▪ Section 52 of the Indian Penal Code defines good faith. Without due
care and attention, nothing is said to be done or believed to be done in
good faith.
▪ The expression ‘with due care and attention’ is only used in this Section
and not defined anywhere else.
▪ The Courts on the basis of their judgments and interpretation have tried
Good faith to explain it.

under IPC ▪ Based on the logic and reason, a good intention, with due care and
expertise is an important factor while determining an act done in good
faith.
▪ The prevailing circumstances, capacity and intellect of a person should
be kept in mind to analyse the act done by him.
 ▪ Essentials
• Logic and a reason;
• A good intention with;
• Due or reasonable care; and
• With expertise or a skill.
▪ Illustration
Essentials
▪ ‘C’, a surgeon, knows that a particular operation may result in the death
of ‘W’ who is suffering from throat cancer, but there is no intention to
cause his death and he does performs the operation in good faith and for
W’s benefit that too with his consent. Here ‘C’ has committed no
offence.
 ▪ S.77 Act of Judge when acting judicially :
▪ Nothing is an offence which is done by a judge acting judicially in
the exercise of any power which is or which in good faith he
believes to be , given to him by law.

▪ S.78 Act done pursuant to the judgment or order of court- if any act
is done by any person in furtherance of a judgement or order of a
Court of Justice, then he/she shall be protected under this Section.

▪ S.19, IPC defines the word Judge.

Judicial Acts ▪ A mere fact-finding body or authority like commissioner appointed
under the Public Servants Act,1850 would not be a judge or a court
of justice.

▪ The next important element of S.77 is that it should not only be an

act of a judge, but it should also be done by him while acting
judicially.

▪ Judicial acts are not just confined to open courts but also for acts
done in chambers.
 ▪ A judicial officer was found copying while writing his 1st
semester LLM examination. The SC held that conduct of
Daya Shankar vs petitioner was unworthy of judicial officer. According to
SC the judicial officer cannot have two standards. It
HC of Allahabad upheld the dismissal of judicial officer from judicial
service.
 ▪ The rights of parties in suit for possession was being decided by
the Rajasthan HC, while magistrate-initiated suits for criminal
proceedings it was held that magistrate has no jurisdiction . When
it was contended that this amounted to contempt of court. HC held
that magistrate committed only error of judgment and such an
Yakub Ali vs action is protected under Judicial officers Protection Act.

State of ▪ A judge acting in good faith is entitled to the immunity provided

Rajastan by Section 77, even if the court has no jurisdiction to convict an
accused. Moreover, the Judicial Officers Protection Act,
1850 protects judicial acts from civil suits if the act done was in
good faith that the court had competent authority as well as
jurisdiction while doing that act.
 ▪ According to Section 78 of the General Exception, if any act is
done by any person in furtherance of a judgement or order of a
Court of Justice, then he/she shall be protected under this
Section.
Acts Done ▪ In Sheo Narian vs State of Rajasthan, the petitioner had obtained
Pursuant to a decree in a civil suit and became tenant. When the complaint
Judgment or was registered against him stating that he obtained decree by
Order of Court suppressing fact. It was held that until such decree is set aside he
would be protected under S.78 of the IPC and no criminal
compliant is maintainable.
▪ However, protection cannot be given to the execution of oral
orders of judges.
 ▪ The only difference between Section 77 and 78
is that the judicial acts may be protected under
S.77 & 78 Section 78 even if the authorised court has no
jurisdiction but in Section 77, the Judge must
act within his jurisdiction to be protected by it.
 ▪ S.80 Nothing is an offence which is done by accident or
misfortune and without criminal intention or knowledge
in the doing of lawful act in a lawful manner by lawful

Accident and
means and with proper care and caution.
▪ An accident or misfortune will operate as an exonerating
Misfortune factor, if its is shown that: 1st the act was mere accident
or misfortune. 2nd act was not accompanied by any
criminal intention. 3rd it was an outcome of lawful act
done in a lawful manner by law full means & 4th it was
done with proper care and caution.
 ▪ In case of Sukhdev Singh v. State of Delhi, the accused pleaded
that while doing a lawful act, he accidentally committed murder
of deceased. But the evidence showed that accused during the
course of scuffle deliberately used gun and fired shots at
deceased. Hence, the Supreme Court held that it was not a case
of accident covered under Section 80.
Case Law
▪ In Girish Saikia V state of Assam, the accused was attacked by
his brother. Two brothers in the middle of the fight ended up
throwing a bamboo on their father who intervened. Father
scummed to the injuries and died. GJ HC held that accused had
committed no offence as case was covered by S.80
 ▪ An act is said to be done accidentally if it is neither done
wilfully nor negligently.
▪ If two friends agree to accidental injuries in a wrestling
bout with each other. Here, if one of them dies in the
Contd.. course, the other can claim protection under this section
if there was no foul play within that time, since the
wrestling bout is a lawful act done in a lawful manner by
legal means.
 ▪ Sita Ram V State of Rajasthan.
The accused was digging the earth with a spade. The
deceased came to collect the mud. The spade hit the
deceased on the head and he scummed to the injuries. The
accused pleaded that it was an accident, but court held that
Case laws. accused was aware of the fact that other workers will come
and accused had lability to take proper care and caution.
Shankar Narayn Bhadolkar V State of MH. - The SC
refused to give benefit of S.80 to the petitioner who picked
by gun and killed on of his invitees to the dinner accidently.
 ▪ The term “necessity” is defined in Black law’s dictionary as
a controlling force; irresistible compulsion.
▪ The doctrine of necessity can be explained as the choice between two
evils where the accused chose the lesser one. This doctrine based
on ‘Salus populi suprema lex esto’ which means that welfare of
people must be supreme and if a person is causing harm to any person
or property in order to prevent a greater harm, then it is excusable.
Necessity S.81 ▪ In a landmark case of R v. Dudley and Stephens, a ship was cast away
in a storm on the high seas and was compelled to use a lifeboat.
Consequently, there was a shortage of food and acute hunger due to
which two of the four men decided to kill the third person and satisfy
their hunger. The court held that one does not justify murder by killing
an innocent person to save one’s own life.
▪ The doctrine of necessity can be attracted only when the harm i.e., loss
or detriment is caused in order to prevent or avoid harm.
 ▪ (1) Self- preservation is not an absolute necessity
▪ (2) No person has a right to take another person's life
Principles
▪ (3) There is no necessity that justifies homicide
 ▪ Act of a child under 7 years of age- Nothing is an offence which is
done by a child under 7 years of age.
▪ S.83 Act of child above 7 and under 12 of immature understanding-
For the children above seven years and below twelve years if
commits a crime, then the incapacity to commit an offence arises
only when the child has not attained sufficient maturity or
S.82 and 83 understanding. a child to have the immunity of this Section must
prove himself or herself to be below twelve years of age. Also, the
onus of non-attainment of maturity and understanding must
specially pleaded and proved.
 ▪ Juvenile Justice (Care and Protection of Children) Act, 2015
▪ This Act was enacted to consolidate and amend the law relating to
children and providing proper care, protection, treatment and disposal

Juvenile Justice of matters and their rehabilitation and other matters concerned with
juveniles.
(Care and ▪ In the case of Deoki Nandan Dayma v. State of Uttar Pradesh, the
Protection of court held that for the purpose of determination of age of an accused,
Children) Act, the date of birth recorded in school record will be taken into
2015 consideration.
▪ In the case of Krishna Bhagwan v. State of Bihar, for considering the
relevant age of juvenile, the age on the offence committed will be
considered.
 ▪ If any juvenile is alleged to be guilty of any crime, then such
juvenile shall be charged under special juvenile police unit or

Contd.. the designated child welfare police officer. The authorised

police officer shall produce the juvenile offender before the
Board within 24 hours excluding the journey time.
▪ Insanity or Mental Abnormality
▪ Section 84 of the IPC provides for a defence to a crime committed who are
insane or who cannot constitute required mens rea to commit an offence.
Every normal and sane human being is expected to possess some degree of
reason to be responsible for his/her conduct and acts unless any contrary is
proved. But a person of unsound mind or a person suffering from a mental
disorder cannot be said to possess this basic norm of human behaviour.

▪ Essential Ingredients of Section 84

▪ The essential elements of Section 84 are as follows:
1. The accused must, at the time of commission of the act be of unsound mind.
2. The nature of unsoundness must be of such nature of which he is incapable
of knowing the consequences or what is in violation of law.

3. The nature of act must show that there is absence of motive in commission
of an act.
 ▪ Mere subjection to insane impulses is not sufficient for a person to
acquit himself/herself under this Section.
▪ In a landmark case of Re M’Naghten where M’Naghten who was an
Englishman apparently paranoid by Schizophrenia shot and killed
the Secretary of Prime Minister of Britain. To the surprise,
M’Naghten was acquitted from the offence because it was proved
that he was insane at the time of commission of this act. Since this
Case Law case was the first case where insanity as an exception was observed
by House of Lords.
▪ The applicability of M’Naghten Rule is very apparent in India
because Section 84 clearly brings out the essential ingredients as laid
down in the judgment. Assam High Court in the case of State v.
Kartik Chandra held that M’Naghten Rule is the basis of Section 84
and is embodied in it.
 ▪ Medical insanity and legal insanity
▪ There is a difference between medical and legal insanity. A Court is
always concerned with the legal insanity and not with the medical
insanity. Medical insanity is that condition of any person who is
suffering from any medical illness or other mental diseases whereas
legal insanity is that condition of any person who is having loss of
Medical insanity reasoning power at the time of committing crime.

and legal insanity ▪ Moreover, to clearly point out the importance of distinction of medical
insanity with legal insanity, the court in a case where the accused
committed murder and had full understanding of the conduct of his act.
Here, the court said that even though there is proven medical insanity
yet Section 84 cannot be invoked when legal insanity is not established
by the accused. This was held in the case of Govind Raj v. State.
 ▪ Irresistible Impulse, Mental Agitation, Annoyance and Fury
▪ Crime is generally said to be done with free-will except in cases of abetment or
coercion. However, there are cases where a person can claim protection for
irresistible internal compulsion affecting the emotions and the will. The act of
committing crime is spontaneous, sudden and uncontrollable under the law of
insanity. Even in some cases, people may know what is right or wrong yet he is
incapable of restraining himself from doing it because of his freedom of will is
overpowered by mental disease.

▪ This doctrine of irresistible impulse is not included in the Indian Law. a person has
to prove prior unsoundness of mind along with the irresistible impulse.
Contd. ▪ In the case of Brij Kishore Pandey v. State of UP, the Supreme Court held that plea
of irresistible impulse shall be considered as a mitigating factor in aggravating the
act to be done. The mere fact that murder was committed on sudden impulse will
not be sufficient to claim protection under Section 84 of IPC.

▪ The doctrine of irresistible impulse and impulsive insanity is not a valid

defense under Section 8
 ▪ Presumption of Sanity
▪ Law presumes every person to be sane until and
unless the contrary is proved. To prove the
particular person to be insane, one has to prove
the following:
1.He must show that he was suffering from a
disease of the mind when he committed an illegal
Presumption act.
2.He must show that he was unable to frame reason
or was absent-minded which rendered him insane.

3.Due to unsound mind, the act affected the legal

responsibility of knowing the nature and
consequences of his wrongful act.
 ▪ In a case of Arumugham v. State of Tamil Nadu, an accused in a sort of
provocation caught hold of seven years old child and dashed his head
thrice in quick succession resulting in the death of the boy. Immediately

Case Law after the occurrence the accused ran away. Here, the accused pleaded for
insanity as a defence. But the court held that his running away from the
crime scene shows that he had no legal sanity and hence his plea of
insanity was rejected and was punished for the crime committed.
INTOXICATION This Photo by Unknown Author s licensed under CC BY-NC-ND

▪ Intoxication is a state of mind in which the person is incapable of

knowing the nature of act or he was doing an act which was
either wrong or contrary to law. Section 85 and 86 provides
immunity to an intoxicated person only if the intoxicating thing
was given to him without his knowledge or against his will.
Voluntary drunkenness is no excuse for the commission of the
crime. This was held in the case of Chet Ram v. State.
 ▪ Moreover, in the year 1956, the principle was laid for
immuning from criminal act due to drunkenness in the
case of Basdev v. State of Pepsu as:
• If the intoxication is self-induced then the accused shall
be treated as if he had been aware of the risk taken by
Contd. doing a criminal act.
• Intoxication can be induced by drink or drugs.
• The recklessness of an act is an alternative to intent or
knowledge.
 ▪ Involuntary intoxication is a state when a person
is administered with intoxicating substances
involuntarily i.e. when he was unknown of the
fact. Involuntary intoxication is immuned under

Involuntary Section 85 if the accused is able to prove with the

satisfaction of the Court that the crime committed
intoxication was not intended by him and he had no
knowledge of the cause of the inebriated state of
mind.
 ▪ Basdev V State of Pepsu, Retired military officer was
Case Law charged with murder of young 15 year old boy. Analyze.
 ▪ Trivial Acts
▪ Offence by Trivial acts are those offences which causes
slight harm which would not be complained by an ordinary
person. Section 95 of the General Exception provides

Trivial Acts
immunity to the person who commits trivial offences. A
trivial act is distinguished depending upon the nature of the
injury, the knowledge, intention and other related
circumstances. Therefore, if the allegation of the complainant
is of a petty or trivial nature, then no criminal proceeding
should be taken.
 ▪ Veeda V Yusuf Khan- Yusuf was a tenant of Mrs Veeda.
Robert the servant of Mrs Veeda called yusuf wife a thief.
Next day Yusuf slapped Robert & due to heated exchange of
abusive words. Yusuf threw a file at Mrs Veeda. A complaint
was launched that Yusuf trespassed to commit offence and he
shall be imprisoned for 3 years. HC acquitted Yusuf on the
Case Law grounds of S.95
▪ In Bindeshwari Prasad V Kali Singh, the allegation against the
accused was that he took away a certified copy of judgment
meant for complainant by signing his name. Thereafter he
obtained another copy, court held that this case is covered
under S.95
 ▪ Acts such as theft of cheque of no value, harm to the
reputation of a person when he was travelling with a wrong
ticket, etc are considered to be trivial. Even the case of
Public Prosecutor v. K. Satyanarayana established that the
conduct of a lawyer in using filthy language in the course of
cross-examination are treated as trivial.
Contd..
▪ The Supreme Court in the case of Bindeshwari Prasad Sinha
v. Kali Singh cleared the meaning of harm. According to the
Court, the harm in Section 95 includes financial loss, loss of
reputation, mental worry and apprehension of injury which
cannot be the reason of the complainant to punish the accused.
 ▪ Sections 87 to 93 of the Indian Penal Code deals with the
law of Consent in criminal cases. The term 'consent' is
not defined in the code. It means to agree to a thing being
done. Consent, is thus a positve act; act ot an assent of
the mind a n d is different from mere submission.
▪ UNINTENDED HARMIN GOOD FAITH FOR
CONSENT PERSON'S BENEFIT: (Sec. 88)
▪ E.g.: A, a surgeon, knowing that a particular operation is
likely to cause the d e a t h o f Z in good faith and for Z's
benefit, and not intending to cause. Z ' s death performs
operation on Z, with Z's consent. A has committed n o
offence.
▪ Essentials of Sec. 88:
▪ .1 The act done must be for the benefit of the person who
suffers injury. Mere pecuniary benefit is not considered a s
'benefit' mentioned above.

▪ 2. The person who suffers the harm should consent to take the
risk of suffering harm. Itshould be a lawful consent and the
person giving consent must be capable of giving consent.
▪ 3. The consent may be express or implied.
▪ 4. The act should be made in good faith..
▪ 5. The act should be done without intention to cause death
 ▪ DFERENCE BETWEEN. SECTION 87 AND SECTION 88:
▪ Sec.. 8 8 differs from Sec. 8 7 in two ways:
1 Under Sec. 87, any harm except death and grievous hurt may be inflicted but in
Sec. 88, any harm except death may be inflicted.
2. Under Sec. 87, the person giving consent must be above 18 years; but under Sec.
88, the age of the person who gives consent is not material.
Sec. 89 extends the operation of consent to persons under 12 years of age and
Contd persons ot unsound mind. For these persons, the guardians alone can give consent.
Such consent must be given in good faith and for the benefit of the child or insane
person. Here both the persons causing unintentional harm and the guardian who has
given consent are not punishable.

E.g.: Ain good faith, for his child's benefit without his child's consent, has the child
operated by a surgeon. The child dies, but since A did not intend causing the death
of t h e child, A is within this exception.
 ▪ CONSENT UNDER FEAR OR MISCONCEPTION: (Sec.
90)
▪ Sec. 90 says that if consent is given under fear or injury or
misconception of fact, then it is not a valid consent. Consent
in criminal cases in not vitiated by undue influence, fraud,
mistake, etc. For e.g.: If a man persuades a woman to have
Consent in fear sexual intercourse with him under the false promise. Of
payment of money, then he is punished for rape because the
consent is valid though it is obtained by fraud.
▪ If consent is given by a person of unsound mind, or an
intoxicated person, who is unable to understand the nature and
consequences of his consent, it is not a valid consent.
▪ The following are not free consent:
▪ 1. Consent given by a person under fear of injury. 2. Consent given
u n d e r misconception of fact. 3. Consent given by a child under
12 years of age. 4. Consent by a person of unsound mind. 5.
Consent by an intoxicated person.
▪ In Re Poonai Fatemah:
▪ The accused was a snake charmer. He persuaded the deceased to
allow himself to be bitten by a poisonous snake. He induced the
public to believe that he had the power to protect them from snake
poison.
▪ The Court held that the accused was punishable for murder because
the consent was given in consequence of misconception. There is
difference between submission and consent. Mere submission by a
person who does not know the nature of the act .done cannot be
consent.
Private Defense
▪ The essential guideline fundamental for the privilege of
Private Defence is that when an individual or his property is
looked with risk and prompt guide from the State machinery
isn’t promptly accessible, that individual is qualified secure
himself and his property.

▪ “This privilege of defence is completely essential. The

cautiousness of the Magistrates can never compensate for
the watchfulness of every person on his own behalf.

▪ The right to private defence of a resident, where one can for

all intents and purposes take law in his own hands to shield
his very own individual and property or that of others, is
unmistakably characterized in Section 96 to Section 106 of
the Indian Penal Code.
 ▪ S.96 – Nothing is an offence which is done in the exercise of right to private
defense.

▪ Section 97 discusses the right of private defence of the body and of property:-
Every individual has a right, subject to the limitations contained in Section 99,
to protect;

1. His very own body, and the body of some other individual, against any offence
Sections affecting the human body;

2. The property, regardless of whether moveable or steady, of himself or of some

other individual, against any demonstration which is an offence falling under
the meaning of burglary, devilishness or criminal trespass, or which is an
endeavour to carry out burglary, theft, mischief for criminal trespass.
 ▪ Right of private defense arises in unexpected
apprehension and one is taken unawares.
▪ Right of private defense is not available against
aggressors.
▪ State of UP vs Ram Swarup- Accused father had contract
in market. In one particular tender he was outbid by
deceased. On the day of incident accused father went to
RIGHTS market to purchase fruits. Deceased declined to sell the
fruits. Hot words followed. Accused father returned with
his 3 sons. They threw challenge on whose authority
prevailed. Defense pleaded that there was an unexpected
quarrel.
▪ SC rejected the plea stating that accused his father went
with preconceived design to quarrel.
▪ Self help is the basic rule of criminal law. The right of private defense is
absolutely necessary for the protection of one's life, liberty and property.

RIGHT OF PRIVATE DEFENCE OF THE BODY AND

OF PROPERTY: (Sec. 97)

Section 97 provides that subject to the restrictions

contained in Section 99, every man has a right to detend.

i. his own body and the body of any other person, against any offence affecting
the h u m a n body.

l. his. property, and the property of any other person, Sec. 36 IPC reads, "Nothing
is an offence which is whether moveable or immovable against theft, done in the
exercise of the right of private defence". robbery, mischief, or criminal trespass or
an attempt to commit any one of these olfences.
 ▪ A true owner has every right to dispossess or throw out a trespasser.
▪ 2. Such right against the trespasser is available both during the process
of trespassing and also after the trespass is complete.
▪ However, this right is not available to the true owner if the trespasser
has proved his right to possession.
Tress passers ▪ 3. if the trespasser has proved his right to possession, then the true
owner can dispossess the trespasser only by seeking civil law remedies.
▪ 4. The burden of proof is on the person who exercises the right of
private defence. The right of private defence is purely preventive and
not punitive or retributive.
 ▪ S.441 Criminal trespass- Whoever enters into or upon property in
possession of another with intent to commit an offence or intimidate
or assault or annoy any person in possession of such property is said
to commit criminal trespass.
▪ Thus, while mere entry upon another’s property without permission
is trespass when such entry is with intent then that amounts to
criminal trespass.
▪ Cherubin V State of Bihar- The deceased was an inmate of house
near that of accused. The wall of the toilet of the house of the
Criminal deceased was an inmate of house near that of accused. The wall of
the toilet of accused had collapsed. Consequently, the deceased
Tresspass started using the toilet. Followed by this accused gave oral warning
which was not suffice. So, to stop this he kept electric wire but
without warning sign.
▪ Accused died cz of this after using. Sc held that mere fact of person
entering a land is trespass but that doesn’t entitle the owner or
occupier to inflict injuries by direct violence. SC upheld the
conviction.
 ▪ The right of private defence does not authorise a person to act with
aggression, but it encourages him to help himself and others, if there
is a reasonable apprehension of danger to his/ others life and property.
▪ In Jai Pal Vs State of Hariyana- SC pointed out that it was accused
party who carried dangerous weapon which clearly shows in intention
to attack.
▪ RIGHT OF PRIVATE DEFENCE AGAINST THE ACT OF A
Private Defence PERSON OF UNSOUND MIND, ETC.: (Sec. 98)
▪ According to Sec. 98, private defence can be 'exercised against any
aggressor, whether competent or incompetent, sane or insane, or
acting under any misconception, and it does not depend upon their
mental state.
▪ *Examples:. Z, an insane person attempts to kill A. Z is not guilty of
any. offence. But even here, A can have the right of private defence.
 ▪ *In . R Vs. Rose: Under some circumstances, a boy
thought that his father was cutting the throat of his

Case Law mother, As he honestly believed that his act was

necessary for the defense of his mother, murder was
excused.
 ▪ No private defense In the following cases :
▪ If the act is done by a public servant in good faith and not to
the extent of causing death or grievous hurt, then a person
cannot have the right of private defence against the public
servant. The object behind deprivation of the right of private
defence against public servants is that the act as per law for
the benefit of the public in general and so protection of
S.99 public servants is necessary in the public. interest.
▪ No private defense if there is sufficient time to report the act
to the public authorities.
▪ It cannot be excessive. A person should not cause harm more
then necessary.
▪ No private defense against the acts done by 3rd person under
the direction and authority of public servant.
 ▪ In Baljit Singh V State of UP- the accused party was in
possession of some disputed land. The complainants
party trespassed into the land armed with LATHIS. The
accused party tried to protect the land from trespass , as a
result of which assaulted the deceased and caused 72
Case Law injuries resulted in death. It was held that his self defense
was excessive.
▪ Analyze Mohinder Pal Jolly V State of Punjab.
 ▪ PRIVATE DEFENCE OF BODY EXTENDING TO CAUSING DEATH: (Sec. 100)
▪ Sec. 100 says that the right of private d e f e n c extends to committing death of the aggressor
only under the following instances:
▪ Viswanath Vs. State o f U.P:
▪ 1. Assault likely to cause death.
▪ 2. Assault likely to cause grievous hurt.
▪ 3. Assault with intention of committing rape..
▪ 4. Assault with intention of gratifying unnatural lust or Rape
S.100 ▪ 5. Assault with intention of kidnapping or abduction
▪ 6. Assault with intention of wrongful confinement.

To invoke Section 100, I.P.C., the following four conditions must exist -
▪ i. the person exercising the right of private defence must not do any act to invite the encounter;
▪ ii. there must be an actual peril to life or great bodily. harm/injury, either real or apparent to
create an honest belief that only b y causing death of aggressor such peril could be avoided.
▪ ill. there must not be any safety or any means of escape by retreat;
▪ there must have been a necessity for taking the life..
 ▪ Vishwanath v State of UP.
▪ The deceased n a m e d Gopal and his wife had strained relations and hence the wife
lived with her. father arrd brother. One d a y Gopal came to his father-in law's house
and tried to drag his wife away forcibly.

▪ The accused, in order to prevent his sister from being abducted by her husband Gopal,
stabbed him to death. The accused was charged for murder, but he pleaded right of
private defence to save his sister form being abducted.

▪ According to sec. 100, the right of private defense extends to causing death of the
aggressor if there is beginning of reasonable fear of danger or attempt or threat of an

Case Law offence. This right continues as long as the reasonable fear of abduction.

▪ But, it is not provided whether it is abduction simpliciter or abduction followed by an

oftence. The Trial Court held that it means only abduction followed by an offence and
since only abduction simpliciter was present

▪ In this case it convicted the accused. But on appeal, the Supreme Court held that Sec.
100 means that right of private defence extends. to causing death of the aggressor
even for abduction simpliciter and hence acquitted the accused on this ground.
 ▪ S.103- The right of property extends, under the restriction
mentioned in S.99 if it involves
▪ 1st Robbery
Right of property
▪ 2nd House breaking by night
extends to
▪ 3rd Mischief by fire committed on building.
causing death
▪ 4th Theft
 ▪ RIGHT OF PRIVATE DEFENCE NI INSTANCES S H
O R T: OF CAUSING DEATH: (Sec. 101)
▪ Analyse Yogendra Morarji V State of GJ.
S.101 & 102
▪ Right of Private defense arises as soon as reasonable
apprehension of the danger to the body arises.
 ▪ Sec. 106 deals with right of private defence against deadly
assault when there is risk of harm to innocent person:

▪ For e.g.: A mob attempts to murder A. Ain the right of private

defense fires on the mob. Many Young children and innocent
men die, but A has not committed any offence.

S.106 ▪ Wassan Singh Vs State of Punjab- There was a fight between

two groups. The accused himself received nine injuries. He shot
at the assailants with his guns, which however, hit an innocent
person, killing her. SC held that accused has the right of private
defence and hence he was acquitted
 ▪ The two-judge bench of SC in Darshan Singh Vs State of Punjab and
Another outlined the principles of Right of Private Defence as pursues:
▪ Self-defence is the essential human nature and is appropriately perceived by the
criminal statute of every single socialized nation. All free, law-based and
enlightened nations perceive the privilege of private defence inside certain
sensible points of confinement;
▪ The privilege of private defence is accessible just to one who is all of a sudden
stood up to with the need of turning away a looming peril and not of self-
General creation;

Principles ▪ An insignificant sensible misgiving is sufficient to place the privilege of private

defence into activity
▪ The privilege of private defence starts when sensible fear emerges, and it is seen
with the duration of such fear;
▪ It is unreasonable to anticipate that an individual under attack should adjust his
protection bit by bit with any arithmetical exactitude;
 ▪ The Indian Penal Code gives the privilege of private defence
only when that unlawful or illegitimate act is an offence;

Contd..