LAW OF TORT/BATCH 2019

NATIONAL UNIVERSITY OF STUDY AND

RESEARCH IN LAW

Research Paper

On

PRIVATE DEFENCE UNDER LAW OF TORT

Submitted by:

VARUN KUMAR (1026)

BATCH OF 2019-24

On

October 22, 2019

Under the guidance of

DR. SUBIR KUMAR

1|Page
LAW OF TORT/BATCH 2019

Table of Contents
Declaration................................................................................................................................3
Introduction..............................................................................................................................4
Nature and scope......................................................................................................................4
The Legal definition of Private Defence.................................................................................5
Principles of Private Defence..................................................................................................5
Misuse of private defence........................................................................................................5
Types of private defence..........................................................................................................6
1. Private defence to body.............................................................................................6
2. Private defence to property (movable and immovable).........................................6
In case of body:.....................................................................................................................6
In case of property:...............................................................................................................7
When the right extends to causing death:..............................................................................8
In the case of the body:.........................................................................................................8
Conditions required to invoke the jurisdiction of this provision:....................................8
In case of property:...............................................................................................................8
Extends to causing other harms:............................................................................................9
In case of body:.....................................................................................................................9
In case of property:...............................................................................................................9
Causing death of an innocent person:..................................................................................10
Recent Case Laws (After 2000) :...........................................................................................10
Conclusion...............................................................................................................................17
Bibliography:..........................................................................................................................17

2|Page
LAW OF TORT/BATCH 2019

Declaration

I hereby declare that the research paper entitled “Private Defence under Law of Tort”
submitted to National University of Study and Research in Law as part of Assessment based
on my original work carried under the guidance of Dr. Subir Kumar.

The material borrowed from other sources and incorporated in this research has been duly
acknowledged.

I would like to thank the Library Staff of National University of Study and Research in Law,
Ranchi as well for their co-operation and my batch mates and seniors who inspired, helped
and guided me in making this project.

Varun Kumar

Date: 22-10-2019

3|Page
LAW OF TORT/BATCH 2019

Introduction

The state is obliged to provide the citizens with some right in respect to their Body and their
Property. In law of Tort, this right is termed as Right to Private Defence under Law of Tort.
Right of private defence of body and property is the inherent right of an individual which
must be encouraged in every citizen of the society.

The state is obligated to remove all kinds of social disorder and provide social security for the
citizen’s welfare. Generally, security should be of a body and then of the property. With the
changing socio-economic and political conditions, people realised that the need for the
security of body as well as that of the property from the external threat which led to the
emergence of private defence.

Nature and scope

The amount of force used must be reasonable, proportionate and under the control of law.
This right is subjected to certain restrictions.

For example: If X (wrongdoer) in a dispute with Y tries to kill Y. Y has every right to protect
himself if there exists any apprehension of threat or danger to life.

Under section 96-106 of IPC, there are laws governing the Right of Private Defence:

a) Section- 97, 98, 99 deals with both the aspect of right to defend body and property.

b) Section- 100, 101, 102, 106 deals with the right to defend body.

c) Section-103, 104, 105 deals with the right to defend property.

4|Page
LAW OF TORT/BATCH 2019

The Legal definition of Private Defence

This right gives liberty to a person, but when that liberty is used for committing crimes or the
right of private defence is used as means to give justification for any act forbidden by law, the
state has the power to impose severe punishment.

Section 96 of IPC states that If any act which is forbidden by law is done with respect to
defence of body or property it will not amount to an offence. The force used in that act must
be proportionate and reasonable.

Illustration:

X, a person who is previously charged with the case of murder and who appears to be
aggressive picked a quarrel with Y. After a heated argument X attacked Y with a knife. Y has
the right of private defence to protect himself from the violent act.

Principles of Private Defence

Available against wrongdoer: The right of private defence is available against all those
persons who threaten to cause acts which are illegal and forbidden by law.

Reasonable assumption of threat: The offences caused by the wrongdoer shall be of that
nature which automatically creates the reasonable apprehension of threat and danger in
the mind of a person for which he shall take the protection of public authorities.

Misuse of private defence

This right is often used for giving unlawful justifications for the crime committed. This right
is also used with the malicious intention to take revenge or vengeance.

Limitations of private defence

The right to private defence in certain situations may not be available to a person. As stated in
section 99 of IPC following are the limitations:

5|Page
LAW OF TORT/BATCH 2019

 If a person does an act with a benevolent intention which does not give rise to
the assumption of any kind of threat or danger.
 The force must be proportionate.
 When the person has time to recourse and take protection of the public official.
 If an act is done or directed by a public official with bonafide intention that is,
for the welfare of the general public, and when the act was of such nature that
the person has time to take remedial measure and protection of the public
authorities.

Types of private defence

1. Private defence to body

2. Private defence to property (movable and immovable)

As Bentham said every honest man shall consider himself as the protector of each other.

Section 97 of IPC states that every person has the right of private defence in two folds-

 Right of private defence to body.

 Right of private defence to property (movable or immovable).

Illustrations:

If A and B breaks into the house of Z at night with the purpose of robbery, then Z has the
right to defend his body and property with proportionate force and if readily measures are
available he should also take the assistance of public official.

In case of body:

As soon as a person has the reasonable assumption of the imminent danger or threat to the
body by the wrongdoer the right to private defence can be availed by the person. It lasts until

6|Page
LAW OF TORT/BATCH 2019

the assumption of danger continues. The danger must be of such nature which should be of
imminent threat in the eyes of law.

Related Case Law:

Kala Singh v State of Punjab1

In the instant case, the deceased had a heated argument with the accused and ground and
pound him. When the accused was free from the grip of the deceased gave him three serious
blows in the head through a light hatchet which resulted in the death of the brute. It was held
that the accused exceeded the right of private defence even though the nature and acts of the
deceased were violent and aggressive but the force used by the accused was not proportionate
and reasonable.

In case of property:

The right of private defence begins with the commencement of such reasonable apprehension
which threats to cause imminent danger.

 In case of theft, the assumption continues until the offender has affected his retreat
from the property or either the person has taken the protection of a public official or
the property has been retrieved.

 Against robbery, it lasts as long as the offender has caused or attempts to cause death,
wrongful restraint, or hurt or even causes fear of instant hurt death or wrongful
confinement.

 In the case of criminal trespass, it continues until the wrong-doer continues its
commission.

1
SCC 2014

7|Page
LAW OF TORT/BATCH 2019

When the right extends to causing death:

In the case of the body:

Subject to restrictions enshrined under the section 99 the right of private defence of the body
extends to voluntarily causing the death of a person if the offences are from the list given
below -(Section 100)

 An assault that may cause the apprehension of death or imminent threat or danger.

 Assault with the intention of committing rape.

 Assault with the intention of committing wrongful confinement.

 Assault with the intention of abduction and kidnapping.

 Assault with gratifying unnatural lust.

Conditions required to invoke the jurisdiction of this provision:

 If there is an imminent threat to life.

 Such bodily injury that may either result in the death of the person or permanent
disablement.

 Necessity

Illustrations-

A with the intention to rape B abducted her. B on having the reasonable apprehension of
imminent threat or danger to her life kills A. B can avail the right of private defence.

In case of property:

Subject to the restrictions under restrictions Section 99, the right of private defence of
property extends to causing death in the following conditions or circumstances:

 Robbery
 House-trespass
 House-breaking by night

8|Page
LAW OF TORT/BATCH 2019

 Mischief by fire

Illustration:

A and B committed robbery in Z’s house when he was sleeping. While they were halfway
through Z woke up and tried to stop them in which A took out his gun and fired a shot at Z. Z
in his defence gave a serious blow in the head of A which resulted in his death. Z has the
right of private defence.

Landmark Case of Jessa Singh vs State of Haryana

In the instant case, it was held that right of private defence of the property will not extend to
the killing of a person who committed the act of trespass in open land.

Extends to causing other harms:

In case of body:

When an act or an offence is of great threat and danger but does not fall under the given
description of offences mentioned under the section 100 of IPC (which specifies the gravity
of offences in which rights extend to causing death) and does not extend to causing
voluntarily death, the right of private defence extends to causing harms other than death.

Illustrations:

A made a gesture of hitting B with a knife. B in a sudden reflex shot A which resulted in his
death. The right of private defence will not be available to A.

In case of property:

If an offence does not fall in the enumerated list prescribed in section 103 of IPC it will not
extend to causing voluntarily death of a person. It is subjected to limitations under section 99.

9|Page
LAW OF TORT/BATCH 2019

Illustrations:

A snatched the phone of B. In order to retrieve his phone back he followed B and brutally
assaulted him which resulted in his death. B will be charged with murder and the right of
private defence will not be available to him.

Against a person of unsound mind:

Any person who is of unsound mind or lunatic or lacks the ability to think rationally does an
act forbidden by law and which possess imminent danger to the life and property of other
persons, the right to private defence is still available. However, the lunatic will not suffer any
legal consequences for the act committed. Section 98 of IPC deals with situations of such
nature.

For example: If A, (unsound person) tries to kill B, then he has the right to private defence
against A.

Another is, if A who is heavily intoxicated comes under a heated argument with B and tries to
stab him though he is not in his senses but the right of private defence is still available to B.

Causing death of an innocent person:

If a person assumes that an assault is likely to cause death, he can exercise his right of private
defence even though in the exercise of such right there is a threat to the life of an innocent
person.

For example: If a person is attacked by a group of people who are intending to kill him. In
his private defence he can fire at the mob and can also risk harming innocent people.

Recent Case Laws (After 2000) :

Laxman Singh vs. Poonam Singh and Ors2. :

2
SC/0692/2003

10 | P a g e
LAW OF TORT/BATCH 2019

Even though the accused persons had sustained injuries the maximum they could have done
was to exercise the right of private defence by inflicting simple injuries.
The High Court by the impugned judgment held that the case was one where the accused
persons had exercised the right of private defence and had not exceeded it.
It was held that the accused persons were entitled to exercise the right available in respect of
private defence.
In support of the appeals, learned counsel for the State and the informant submitted that the
parameters of the right of private defence as provided in IPC have been completely lost sight
of by the High Court.
The learned counsel for the informant submitted that though the trial court appears to have
observed that the right of private defence was available to the accused persons it was contrary
to the findings recorded about the complainants having possession of the disputed land.
The observations made by the trial court can be held to have been rendered by assuming
about the possession by the accused persons.
The accused persons had sustained injuries and the High Court was justified in holding that
the right of private defence had not been exercised in excess of the permitted limits.
Section 96 IPC provides that nothing is an offence which is done in the exercise of the right
of private 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.
A plea of right of private defence cannot be based on surmises and speculation.

Sekar Alias Raja Sekharan v. State Represented By Inspector Of Police, T.N.3:

The accused took the plea of false implication and alternatively pleaded that the assaults were
made in exercise of right of private defence.
In appeal, the High Court did not find any merit in the submissions made to the effect that
this was a case which was clearly covered by the accused's exercise of right of private
defence.
The occurrence has been accepted but the plea was one of exercise of right of private
defence.

3
2002 SC (3) SCR 113
11 | P a g e
LAW OF TORT/BATCH 2019

The plea relating to exercise of right of private defence has been rightly rejected by the courts
below.
If the circumstances show that the right of private defence was legitimately exercised, it is
open to the court to consider such a plea.
An accused taking the plea of the right of private defence is not required to call evidence; he
can establish his plea by reference to circumstances transpiring from the prosecution evidence
itself.
This, according to us, brings the case within the ambit of Exception IV to Section 300 IPC.
Even otherwise, this appears to be a case of the accused exceeding the right of private
defence.
The appropriate conviction would be under Section 304 Part I IPC and custodial sentence of
10 years would meet the ends of justice.
We reduce the sentence to 10 years and if the accused has undergone the period of 10 years
and is not required to be in custody in any other case, he shall be released forthwith.

State Of Uttar Pradesh v. Gajey Singh And Another4:

Mehar Singh in order to save his sons Rajpal Singh and Gajey Singh fired a shot from his gun
towards the accused persons.
Before the trial court, Dr. Goel, further stated that injuries on both Gajey Singh and Rajpal
Singh could be caused at about 9.30 a.m. on 27-1-1979.
Dr. S.C Goel who had medically examined Gajey Singh has denied the prosecution's
suggestion that the incised injury of Gajey Singh might have been caused by a fall on a piece
of glass.
In the case, the trial court convicted both the accused and the High Court allowed the appeal
filed by the accused persons and acquitted them.
Non-explanation of the injuries on Rajpal Singh and Gajey Singh has created serious doubt
about the credibility of the prosecution version.
The effect of non-explanation by the prosecution about the injuries on the accused persons
depends on the facts and circumstances of each case.

4
(2009) 11 SCC 414

12 | P a g e
LAW OF TORT/BATCH 2019

Kashi Ram And Others v. State Of Rajasthan5

The High Court again examined the entire evidence and came to a clear conclusion that the
appellant-accused had exceeded in their right of private defence.
"The learned trial court has rightly held that the accused persons have exceeded their right of
private defence of property."
The High Court also came to the conclusion that in the facts and circumstances the trial court
has correctly evaluated the entire evidence on record and has taken a very lenient view.
The appellants aggrieved by the said judgment of the High Court have preferred this appeal
before this Court.
It was submitted by the learned counsel appearing for the appellants that the High Court
failed to appreciate that the disputed land was in possession of the accused persons and the
complainant party came to their field to dispossess them and their acts, if any, are fully
covered by the right of self-defence.
The conviction of the appellant must be under that provision and not under Section 302 IPC.
The appeal is partly allowed, the conviction under Section 302 IPC, is set aside, and the
appellant is convicted instead under the first part of Section 304 IPC.
Since the appellant-accused did not have the right of private defence the findings of the
courts below regarding their exceeding the right of private defence cannot be sustained and
are set aside.
Since there is no appeal by the State against acquittal of the appellant-accused under Section
302 IPC it is not necessary for us to deal with the aspect whether their acquittal under Section
302 was justified or not.
The appeal being devoid of any merit is dismissed.

Ram Kishan And Ors. vs The State Of Rajasthan6

The learned Counsel for the accused-appellants contended that the learned trial Court itself
has recorded a finding that accused-persons had a right of private defence of person and
further that the said right of private defence of the appellant was upheld by the Division
Bench of this Court while dismissing D.B. Criminal Revision Petition No. 453/2004, filed by
the complainant Prakash Singh against the order of acquittal of the accused-persons from the
charge under Section 302 read with Section 34, IPC, and under Section 4/25 of the Arms Act,

5
RH/0295/2010
6
RH/1243/SC 2007

13 | P a g e
LAW OF TORT/BATCH 2019

vide order dated 8-4-2005; the only point for determination in the present appeal is whether
the learned trial Court was justified in convicting the accused-appellants by holding that they
exceeded their right of private defence and further whether accused-appellants could have
been convicted under Section 304 with the aid of Section 34, IPC, in the facts and
circumstances of the present case. He contended that according to Section 100 of the IPC, the
appellant had a right of private defence even up to death of Bhopal Singh and
present case cannot be said to be a case of exceeding the right of private defence. He
specifically referred Clause (3) of Section 100 and contended that even an assault with the
intention of committing rape is sufficient to the voluntary causing of death of the assailant in
the right of private defence of body. He further contended that in any circumstance the
appellants could not have been convicted with the aid of Section 34, IPC, particularly when
they were given the benefit of right of private defence of person and on the pretext that they
exceeded their right of private defence. He, therefore, contended that the impugned judgment
of the learned trial Court is liable to be set-aside and the accused-appellants are liable to be
acquitted.

Brij Lal and Anr. vs State Of Rajasthan7

In the instant case a reddish brown spot of fire arm (Pellets) on left side of back of chest was
noticed on the person of appellant Brij Lal. His X-Ray report showed presence of a round
metal piece at the side of lung. Though, the injuries are simple in nature but it does suggest
that the injury must have been sustained in the subject occurrence. The appellant Sahib Singh
has sustained as many as 11 injuries caused by fire arm. His X-Ray report showed many
metallic round pieces in the body. From these injuries the only reasonable inference can be
drawn is that both the accused persons received injuries during the course of the occurrence
which were inflicted on them by some members of the prosecution party.

Thus, the precise question falls for consideration is, the prosecution party being initially at
fault, to what extent the harm which could be lawfully inflicted in self-defence? The right
of private defence of person and property is codified in Sessions 96 to 106 of the Penal Code.
In fact these Sections confer and define the limits of right of private defence, constitutes
general exception to the offences defined in the Code.

7
SCC 2006

14 | P a g e
LAW OF TORT/BATCH 2019

Raghubar & Others vs State Of U.P8

Smt. Raj Laxmi Sinha, learned A.G.A. has also been joined by Shri Rahul Mishra holding
brief of Shri Apul Mishra, Advocate representing the complainant by contending that here the
circumstances are speaking for itself that the accused-appellants were the aggressors and in
the present case from the side of accused-appellants qua the other side of story, First
Information Report has been lodged being case crime No.116-A and therein the theory set up
by them has been found to be untruthful and accordingly, final report has been submitted and
said matter has been permitted to attain finality. Here the totality of the circumstances would
clearly reflect that accused-appellants were not at all in possession of the property in question
and in a deliberate and wilful manner with full intention to take possession, the accused-
appellants formed unlawful assembly and have participated in commission of offence and
here the accused persons have failed to discharge their burden that in exercise of right
of private defence of person and property, such an act has been committed by them and
accordingly, in the facts of the case, the right that has been claimed by them that is the right
of private defence of person and property, same is neither applicable nor attracted in the facts
of case. In view of this, they had every right to exercise right of private defence of property
and once they have been attacked and assaulted then they have every right to exercise right
of private defence of person and here exactly same has been done.

Darshan Singh v. State Of Punjab And Another9

The High Court has unnecessarily laid stress on the point of recovery of the gun at the
instance of Darshan Singh. The accused has not denied the incident. The case of
the defence is that their case is covered by the right of private defence. Darshan Singh in his
statement under Section 313 of the Code of Criminal Procedure, 1908 has admitted that he
had fired from his licensed gun in his right of private defence. The High Court without
properly comprehending the entire evidence on record reversed the well-reasoned judgment
of the trial court.

8
IPC/SCC 2014
9
RH/1933/SCC 2010

15 | P a g e
LAW OF TORT/BATCH 2019

Bhiswadeb Mahato & Ors vs State Of West Bengal10

In the instant case we are inclined to hold that the appellants had initially acted in exercise of
their right of private defence of property, and later in exercise of the right
of private defence of person. It has been found that three of the appellants were also injured
in the same incident. Two of the appellants, namely, Appellants 2 and 3 had injuries on their
head, a vital part of the body. Luckily the injuries did not prove to be fatal because if inflicted
with more force, it may have resulted in the fracture of the skull and proved fatal. What is,
however, apparent is the fact that the assault on them was not directed on non-vital parts of
the body, but directed on a vital part of the body such as the head. In these circumstances, it is
reasonable to infer that the appellants entertained a reasonable apprehension that death or
grievous injury may be the consequence of such assault. Their right of private defence,
therefore, extended to the voluntarily causing of the death of the assailants.

Triloki Nath & Ors vs State Of U.P11

'Falsus in uno, Falsus in ombibus' is not a rule of evidence in criminal trial and it is the duty
of the court to disengage the truth from falsehood, to sift the grain from the chaff.

The said First Information Report was lodged without any delay whatsoever; particularly
having regard to the fact that after the incident the injured persons were required to be looked
after and the distance of the Police Station from the place of occurrence was about three
kilometres.

SELF-DEFENCE The law relating to self-defence in view of a catena of decisions of this

Court is now well-settled. A plea of right of private defence may be in respect of property or
a person. Section 99 of the Indian Penal Code, however, mandates that the right
of private defence, in no case, extends to inflicting of more harm than necessary. Section
100 of the Code provides that the right of private defence of the body extends under the
restrictions mentioned in Section 99 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 enumerated therein. It is essential for an accused to show that there were
circumstances giving rise to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him, burden wherefore lies on him.

Conclusion
To sum up I would say that private defence is a right available to an individual to defend his
body and property. Though there are times when this right is misused for the commission of a

10
RH/SCC 2005
11
SC 128 2005

16 | P a g e
LAW OF TORT/BATCH 2019

crime, it depends upon the court to decide on the basis of facts and circumstances of the case
whether the act was done in good faith or not. In cases of private defence, it must be kept into
consideration that there is a reasonable apprehension of threat, proportionate force and time
of recourse.

Bibliography:
BOOKS :

 CLERK AND LINDSHELL

 RATANLAL & DHIRAJLAL

WEBSITES :

 http://www.manupatra.com
 http://www.scconline.in

17 | P a g e