Right of Private Defence
Punishing
someone without lawful authority is not accepted in any civilized legal system.
This principle applies to irrespective of any innocent or accused person under
trial. Inflicting punishment is the absolute authority of the state mechanism.
However, it does not necessarily mean that no one can prevent any crime that is
going to happen before him/her. It is reasonably expected that citizens ought
to protest against oppression and be the defenders against any unjust act. But
this protest must be reasonable and in a defensive mode.
The use of force to protect one's
property and person is called the right of private defence. Subject to certain
limitations, the law gives a right to every person to defend his body or
property, or the body or property of another person against unlawful
aggression. He may protect his right by his own force or prevent it from being
violated. It is a right inherent in a man. But the kind and amount of force is
minutely regulated by law.
Defending one's own life and property
against any kind of offence has been recognized in the legal system of
Bangladesh through the idea of "private defence" in its penal code,
1860. Sections 96 to 106 of the Penal Code state the law
relating to the right of private defence of person and property. Body may be
one's own body or the body of another person and likewise property may be
movable or immovable and may be of oneself or of any other person. Self-help is
the first rule of criminal law.
Principles:
The right of private defence is based on
the principle that it is the first duty of man to help himself.
The law of private defence is founded on
two principles: Firstly, everyone has the right to
defend one's own body and property as also the body and property of
another. Secondly, the right cannot be used as a
matter of pretention for justifying aggression. This right can never be
exercised to take revenge over the alleged offender but rather only as a mean
of one's own protection; it is not reckless, unrestricted and absolute right.
Section-96: Things done in
private defence
Nothing
is an offence which is done in the exercise of the right of private defence.
Scope:
The right
of private defence of person and property is recognized in all free, civilized
and democratic societies within certain reasonable limits.
Those limits are dictated by two
considerations: a) that
the same right is claimed by all other members of the society, and
b) that is the state which
generally undertakes the responsibility for maintenance of law and other.
Limitation:
The right of private defence is a
legal right which one can exercise for the defence of person and property. But
right is to be exercised under certain restrictions or limitations. The
limitations 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.
Plea
of private defence:
It is not necessary that the plea
of private defence must always be taken by the accused person. Even if the
accused does not do so, the court can consider it if the circumstances show
that the right of private defence was legitimately exercised.
The accused has not to plead
self-defence by examining some witnesses or by making any statement. But there
has to be some material available on record to indicate that the accused had
attacked the deceased in exercise of the right of self-defence.
When the accused's plea of
self-defence is inconsistent with the facts and circumstances of the case it
must be rejected.
Case
study:
Where there is a free fight no
right of private defence is available to either party.
[AIR
1978 (SC) 494]
The onus of proving right of
private defence lies on the accused claiming exercise of such right.
[DLR 61.-Sarwar Kamal Vs. State]
Even if the accused is not able
to substantiate his defence by producing evidence yet if his version gets
support from the prosecution to the extent of being reasonably possible, then
the accused is certainly entitled to acquittal. [DLR
203.-State vs. Md. Shahjahan]
Section-
97: Right of Private defence of the body and of property.
This section states that anyone has the right to
defend
(i)
his own body or body of any other persons
against offences affecting human body,
(ii)
his or any other persons moveable or
immovable property against four offences or attempt to commit those offences
namely theft, robbery, mischief, or criminal trespass. But this section is
subject to the restrictions of section 99 of Penal Code.
Private
defence of body:
Private defence under this section allows anyone the right to
defend one's own or anyone’s body when one's or anyone's body could be affected
by the aggression of another. Private defence can be applied for the protection
of the body and for the protection of life. In this regard Article 32 of
Bangladesh Constitution can be mentioned which guarantees for the protection of
life.
We can give an example from the case Yeshwant Rao vs State of M.P. ; AIR 1992 SC
1633 that where a girl was being sexually molested and her father
hit the assailant resulting in consequential death, it was held that the father
was entitled to the right of private defence irrespective of the fact that the
affair was with or without consent because the girl was a minor.
Where
not applicable private defence of body:
This right can never be exercised to take revenge over the
alleged offender but rather only as a means of one's own protection; it is not
reckless, unrestricted and absolute right.
In the case Pattani vs State, 1993 CrLJ 1709 (Mad) where
the accused husband attacked his unarmed wife with a pestle without any threat
or danger to his life, and to save herself, the wife caught hold of private
parts of the husband who is consequence hit on her head and she died, it was
held that the husband could not be said to have acted in the exercise of the
right of private defence.
Private
defence of property:
A person can defend his or any other person’s
moveable or immoveable property against the offences
•
Theft
•
Robbery
•
Mischief
•
Criminal trespass ,
Or, against the attempt of the abovementioned
offences.
Applicability
of private defence of property:
•
Every person in possession of land is entitled
to defend his possession against anyone who tries to eject him by force.(Mohinder Singh vs. State of Punjab,1995,CrLJ 244)
•
Entitled to defend his possession against anyone
who tries to eject him by force. Possession is of supreme importance in respect
of private defence of property. (Mokee, 1869 12 WR
(CR) 15).
•
Any person can defend his property against any
act which will have the effect of causing injury.(Birjoo
Singh vs. Khub Lal1873, 19 WR (Cr) 66,)
•
Not applicable when the accused is the
aggressor.
For understanding, we can give an example of the Ghoraghat UNO
Waheeda Khanam’s attack on 3rd
September, 2020 where the accused entered into the UNO's residential living
quarters through a bathroom ventilator to attack the UNO, he opened the
bathroom door and entered the UNO's bedroom. At that time, UNO Waheeda Khanam
got up and went to get out of bed as she noticed something suspicious. The
accused hit her on the head with a hammer from behind several times. But here
is the point: Before getting hit by the trespasser, if the UNO hit the
trespasser first, she could get the help of private defence. But the trespasser
can’t claim the private defence here.
Section 98: Right of private defence of the body
and of property
Analysis:
The section is based on the natural
right of every person to defend himself and his property and there are no
exceptions to the exercise of that right.
This section lays down that for the
purpose of exercising the right of private defence, physical or mental
incapacity of the following persons against whom the right is exercised is no
bar:
Ø Youth
Ø Want of
maturity of understanding
Ø Unsoundness
of mind
Ø Intoxication
Ø Misconception
Illustration:
(a) Z, under
the influence of madness, attempts to kill A; Z is guilty of no offence. But A
has the same right of private defence which he would have if Z were same.
(b) A enters by
night a house which he is legally entitled to enter. Z, in good faith, taking A
for a house-breaker, attacks A. Here Z, by attacking A under this
misconception, commits no offence. But A has the same right of private defence
against Z, which he would have if Z were not acting under that misconception.
Section 99: Acts against which there is no right
of private defence
This section reflects the limitation of exercising
the right of private defence. An offender can get exemption from crime on
various issue under penal code where section 99 limits or concise the grounds.
The First two parts apply to those cases where any
act done by the public servant under color of his office in good faith and
which does not cause reasonable apprehension of death or grievous hurt. Private
defence cannot be applied by any person against those public servant and person
authorized or, directed by the public servant also. Where there is enough time
to seek protection from respective authority or other means to recourse, person
cannot apply private defence which reflects in the third part of section 99.
There needs some explanation of keywords as follows:
Public servant- A
person under section 21 of Penal code, 1860.
Under color of office-
Act done by authorized authority lawfully who have jurisdiction to give the
order and also included irregular activities but not illegal. That does not
mean any activities beyond jurisdiction of the authority and illegally. For
example, a police officer can search a house without search warrant on
justifiable ground where is suspecting a prisoner who escapes from jail.
Resistance by house owner from searching is not valid on the basis of
illegally. Here irregularity is defined separately from illegally.
In good faith-
Act done with due care and caution and under authority regarded as good faith.
For instance, when a police officer search a house preventing criminal
activities by search warrant from respective authority, there cannot be applied
private defence as trespass to the house.
For better understanding about these grounds here
can refer a case as follows:
In State vs. shanker and
Ors. AIR 1958 All 432 Case, a person entered into a land where dispute
arises relating to the possession of that land by receiving order of Magistrate
under section 145 of the Code of
Criminal Procedure. This act was not under any crime. So there could not apply
private defence against the entry.
The fourth part of the section denotes the scope
where a person can exercise private defence against any public servant or any
person authorized or directed by public servant. Where the power is used by
public servant unnecessarily excessive nature, a person can exercise private
defence that depends on the circumstances.
Grounds of Application:
1. Act
of public servant seems reasonable apprehension of death and grievous hurt.
2. Person
exercising right does not neither know or has reasonable reason believe that
Invader is a public servant or acts by the direction of public servant.
3. Having
lack of good faith.
There can present a case reference as following:
Firoz Khan vs. The State,
DLR (SC), 266: A was received detention illegally by Police which could
be regarded as illegal confinement. Then A resisted and escaped from police
custody. For resorting A, police adopted violence to catch him. Exercising of
such act not permissible even if A tried to slip away.
Section 100: When the right of private defence
of the body extends to causing death
This section states that in six cases the right of
private defence of the body extends to the voluntary causing of death to the
assailant. Those six cases are 1.
Reasonable apprehension of death
2.
Reasonable apprehension of grievous hurt
3.
Intention of committing rape
4.
Gratifying unnatural lust
5.
Intention of kidnapping or abducting
6.
Wrongful confinement where recourse is not
possible from public authority.
Here the most vital point is the reasonable
apprehension, it varies in different cases and also a matter of proof.
According to the case of State of U.P. Vs. Ganjey Singh (2009) 11SCC 414
that “In order to justify the act of causing death of assailant, the accused
has simply to satisfy the court that there was reasonable apprehension of death
or grievous hurt. Question whether the apprehension was reasonable or not is a
question of fact depending upon the fact and circumstances of each case and no
straitjacket formula can be prescribed in this regard.”
Section 103
is analogous to Section 100, and
these two sections together make up the complete law of justifiable homicide
according to the Penal code, 1860.
Section
101: When
such rights extends to causing any
harm other than death
This section lays down that if the offence does not
fall under any of the enumerated descriptions in section 100, the right of
private defence does not extend to voluntary causing of death of the assailant.
This section also lays down that the right of private defence extends to the
voluntary causing of any harm other than death to the assailant.
Scope
and application:
When dealing with questions relating to the right of
private defence of the body, sections 100 and 101 must be read together. Under
this section any harm short of death can be inflicted in exercising the right
of private defence in any case which does not fall within the provisions of the
preceding section which deals with the offences in which the harm is likely to
be very serious, and hence justifies the killing of the assailant.
So, in order to get protection under this section
the following conditions must be fulfilled:
a) the
offence which triggers the exercise of
right of private
defence will not be of any of the offences mentioned
in
section 100;
b) the
harm caused by the exercise of right of private defence will be any harm short
of death.
Case
analysis:
1)
The accused was hit by a single brickbats or a
stone piece and suffered a simple head injury. After sometime he fired at the
unarmed assailant causing grievous injury to his abdomen. The Supreme Court
held that keeping in mind his simple hurt and the time gap between that and the gunshot wound caused by him ,
his action was a retaliation rather than act of private defence. Thus he did
not get the protection under this section.
State of J & K v. Hazard Singh,
AIR 1981 SC
451.
2)
The person who died came along with his brothers
to stage a fight with the accused because of an earlier act of insult on the
part of the accused. A single stab wound was administered to him which fell
upon his lower abdomen of which he died. The accused and his wife were also
injured in the process. It was held that the accused had not exceeded his right
of private defence.
Ramchandran v. State, 1994
Cr L J
2742 (Mad);
Sri Kumar Sharma v. State of Bihar, 2003 Cr L J 2258 (Pat).
Section
102: Commencement and continuance of the
right
of private defense of the body
This section indicates when the right of private
defense of the body commences and till what time it continues. It commences and
continues as long as danger to body lasts. The extent to which the exercise of
the right will be justified will depend on the reasonable apprehension of such
danger. There must be a serious threat or attempt to danger. Mere threat won’t
justify the right. There are some cases which may help to understand the scope
of the section clearly.
Reasonable
apprehension:
Without a reasonable apprehension or attack, the
right to private defense can’t be exercised. This point is clarified by the
mentioned cases.
James Martin v.
State of Kerala, (2004) 2 SCC 203: (2004) 1 KLT 513
This case explains the starting point of the right and its
end point. In this case, it explains that the threat to proceed from a woman or
a child and to be addressed to a strong man, here could hardly be a reasonable
apprehension. Present or immediate danger seems to be meant.
Another case Raja Ram, 1977 Cr LJ
NOC 85 (All) states that,
For exercising the right of private defense, it is not
necessary that the party exercises the right must have suffered some injury at
the hands of the attackers.
In
case of fleeing or running:
The right to private defense is valid while the
accused is fleeing the spot. Some cases are set for example in this regard.
In State of U.P. v.
Ramswarup, 1974 Cr LJ 1035: AIR 1974 SC 1570 case,
When the deceased was fleeing for his life, there was no
justification to shoot him down. This would be a sheer case of murder and
nothing else.
State of U.P. v.
Roop Singh, AIR 1996 SC 215: 1996 Cr LJ 410 states that,
Where the testimony of independent witness showed that the
accused chased one of the deceased who fled away from the scene of occurrence
and killed him, they could not be said to have right of private defense as
regards the killing of such deceased.
Another case Jai Dev v. State of Punjab, AIR 1963 SC
612,
The SC held that where the aggressors had already started
running away, and there is no danger to the body or the property of the
accused, the accused is not entitled to rely on ‘private defense' and kill any
of the aggressors who are in fact running away and if anyone is killed, the
accused will be guilty of murder of the deceased and that once the conclusion
is reached that at the relevant times there was no threat either to the person
or property of the deceased, the accused is not entitled to plead private
defense in answer to the charge. Where the deceased stared to attack, he was
soon disarmed and he started running away, there could not be right of private
defense in such a case.
Nature
of the weapon:
Though the nature of apprehension depends upon the nature of
weapon intended to be used or used. It can’t be said that as the complaint’s
party had only used lathis. The accused was not justified in using his spear
especially when a blow with a lathi was aimed at a vulnerable part like the
head.
Deo Narain, 1973. Sarejerac Sahadeo Gaikwad v. State, 1997
CrLJ 3839 (Bom.)
In this case, the accused was attacked by a person with a
crowbar. The aggressor was accompanied by his wife and daughter with sticks in
their hands. The accused snatched the crowbar from the hands of the aggressor.
It was held that the right of private defense did not come to an end with that.
It extended to causing injuries to the ladies who were a part of the aggressor
party. The prosecution has to prove its case against the accused beyond
reasonable doubt. In the case of Hira Rai AIR 1972 SC 244, where some
armed persons went to harvest certain crop forcibly, and during the assault
which they made on the owner of the crop, the accused who was on the side of
the owner gave a fatal blow to one of the members (deceased) reasonably apprehending
grievous hurt or death of the owner, it was held that the accused could not be
said to have exceeded his right of private defense.
But the State v. Md.
Qaiyum, 8 DLR 55 (WP) states
that,
Right of private defense of body commences when there is reasonable
apprehension of danger, and actual blows not necessary. Under the law, the
moment a person apprehends danger from his assailant, he need not wait to be
attacked first, and then to deliver a counter blow in exercise of the right of
self-defense because, if he did it, it is possible that as a result of the
assailant's blow he may not have an opportunity at all to defense his person.
In the present case it was not necessary for the deceased to wait until the
accused had first stabbed him with the dagger which he was carrying in his
hand. He was perfectly justified in delivering a blow with a spade before he
was stabbed. The question of exceeding the right to private defense does not
arise in the case. Fazal Dad v. The Crown, 8 DLR 11 case states that,
The right to private defense can’t continue after the
assaulter has been disarmed…Not merely exceeding the right of private defense
but making it a pretext to cause dead, offence, or murder.
Section 103: When the right of private defence of property extends to
causing death.
The right
of private defence of property extends, under the restrictions mentioned in
section 99, to the voluntary causing of death or, of any other harm to
wrongdoer, if the offence, the committing of which or the attempting to commit
which, occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated, namely :-
Firstly, Robbery
Secondly, House
breaking by night
Thirdly, Mischief
by fire committed on any building, tent or vessel, which building tent or
vessel is used as a human dwelling or as a place for the custody of
property Fourthly, Theft, mischief or house trespass, under such
circumstances as may reasonably cause apprehension that death or grievous hurt
will be the consequence, if such right of private defence is not
exercised.
Scope of the section:
Under
section 103 of Penal code the right of private defence of property would extend
to the causing of death; if theft, mischief or house trespass is done under the
circumstances as may reasonably cause apprehension that death or grievous hurt
would be the consequence if the right of private defence is not exercised.
Where
there is no evidence to justify the conclusion that there was any reasonably
cause for apprehension of death or grievous hurt and the deceased committed no
offence of theft mischief or house trespassing it should be held that the
accused had no right of private defence so as to cause death.
The
weapon used, the manner of using it, the nature of assault and other
surrounding circumstances should be taken into consideration in determining of
reasonable apprehension.
This
section catalogue the cases in which the right of private defence of property
must not be disproportionate to the act which calls for exercise such a right
killing a trespasser in the right of private defence cannot be justified when
no apprehension of injury to life is imminent from the trespasser.
The
causing of death in order to prevent the commission of an offence specified in
section 99 will be justified only where that offence is sufficient to cause a
reasonable apprehension of death or grievous hurt. This clause will not apply
when the apprehension of death arises by the reason of the person or exercising
the right of private defence.
Case Study:
Balajit singh Vs. The state of Uttar Pradesh (AIR
1976) In this case the accused party was in possession of the disputed land,
they caused death one of the complainants party. Conviction under section 147
323/149 set aside and that under section 302/149 altered to one under section
304 part II on a finding that the accused party had exceeded the right of
private defence.
Union Territory of Tripura Vs. Tarami das and others
(1968 crlj)
Person in rightful possession entitled to
defend his possession even to the extent of causing death of member of
aggressive party. Under section 103 of penal code even to the extent of causing
death subject to the restrictions mentioned in section 99 and prevent to
mischief to his land and the crop.
Section
104: When such right extends to causing any harm other than death
If the offence committing of which, or attempting to
commit which occasions the exercise of the right of private defence, be theft,
mischief, or criminal trespass, not of any of the descriptions enumerated in
Section 103 that right does not extend, to the voluntary causing of death but
does extend, subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrongdoer of any harm other than death.
Illustration:
In a case where a person B had stolen the goat from
the cattle shed of the person C who chased him to recover his property and in
the process of recovering it, assaulted B without knowing that the B had been
hit on the vital parts. It was held that C had exceeded the private defence and
was held responsible for culpable homicide.
Scope:
This section applies in cases where an injury (but
not death), inflicted on the offender in the course of his committing the
offences of theft, mischief, or criminal trespass by the person exercise the
right of private defence. It is only when the act which amounts to the offence
is such as per se to cause a reasonable apprehension that death or grievous
hurt will result, that the causing of death is justified. This section is not
applicable to a case where death has been caused in exercise of the supposed
right of defence. This section has also no application by way of defence to a
charge under Section 504 dealing with intentional insult with intent to provoke
breach of the peace.
Section 104
is analogous to section 101. Section 101 and 104 restrict the right of private defence in certain cases to
voluntarily causing hurt or grievous hurt. Section
101 is corollary to Section 100
and Section 104 is to Section 103.
Case
study:
The appellant seized cattle which had trespassed into
the land cultivated by him and was taking them to pound when he was overtaken
by the owner who was armed with formidable weapon and attempted to remove the
cattle from the possession of the appellant who defended the possession by
causing to the owner injuries which resulted in his death. The appellant was
convicted under Section 302 Penal Code.
In appeal before the High court took plea of right of
private defence of property and person.
Held: The appellant was in lawful possession of the
cattle under Section 10 of the Cattle
Trespass Act—Illustration (i) and (k) to Section 379 Penal Code show that removal of cattle, from the lawful
possession of person even by real owner of the cattle, amounts the theft; the
removal by the owner was with dishonest motive of carrying wrongful gain to
himself at least with respect to the fee which he would have to pay in
retrieving the cattle from the pound. Under Section 104 of the Penal Code, the person from whose possession the
cattle was removed had the right to defend his possession of the cattle by
causing to the wrong-doer any harm other than death. If the owner of the cattle
came armed with a formidable weapon to rescue his cattle, the person in
possession of the cattle could have a reasonable apprehension that while
attempting to defend his possession he may receive grievous hurt at the hands
of the owner and that in such circumstances the person in possession of the
cattle would have the right under Section
103 Penal Code extending to the causing of death of the owner. [Nawab vs
The State 12 DLR (WP) 42]
Thus where the deceased was committing criminal
trespass on the land which he was ploughing, the act of shooting at him by the
accused could not be said to have been done in exercise of the right of private
defence and therefore the accused would not be liable for his act to the
fullest extent [PLD
1960 Lah 880]
Section 105: Commencement and continuance of the right of private defence of property:
Illustration:
While Section
102 of the Penal Code deals exclusively with commencement and continuance
of the right of private defence of the body, this section relates to the same
questions with respect of the right of private defence of property. The right
gets vested the moment reasonable apprehension of danger commences with respect
to the property. The right of private
defence of property
(a)
against theft continues till the offender has
effected his retreat with the property or either the assistance of the public
authorities is obtained, or the property has been recovered;
(b)
against robbery continues, as long as the
offender causes or attempts to cause to any person death, hurt or wrongful
restraint or as long as the fear of instant death or instant hurt or instant
personal restraint continues; (c)
against criminal trespass or mischief continues as long as the offender
continues in the commission of criminal trespass or mischief; and
(d)
against house-breaking by night, continues as long as the house trespass which
has been begun by such housebreaking continues.
The above mentioned grounds deal exclusively with the
question of continuance of the right, and for different offences different
yardsticks have been fixed.
Scope:
(1)
In
case of theft: The right of private
defence continues till
(a)
the offender has effected his retreat with the
property, or
(b)
assistance of public authorities is obtained,
or (c) the property has been
recovered.
That being said the above mentioned conditions need
further discussion
•
The first part is a question of fact because it
cannot be said for certain that a particular stage is the exact time when it
can be said without doubt that the offender has effected his retreat. However
once the offender has removed the property beyond the immediate reach of the
possessor it can be said that he has effected his retreat.
•
The second part says that the right of private
defence continues till the assistance of the public authorities is obtained
which means that the right comes to an end with the obtaining of assistance of
public authorities.
•
The third part says that the right against theft
continues till the property has been recovered. This means that after the
recovery of the property the defender’s right of private defence against the
thief comes to an end.
So the right of private defence of property against
theft comes to an end when any of when any one of this conditions is met.
(2)
In
case of robbery: The right of private defence of property against robbery
continues as long as
•
The offender causes or attempts to cause to any
person death or hurt or wrongful restraint; or
•
As long as the fear of instant death or of
instant hurt or of instant personal restraint continues.
(3)
In
case of criminal trespass or mischief: The right of private defence of
property against criminal trespass or mischief continues as long as the
offender continues in the commission of criminal trespass or mischief.
Therefore, so long as the offender continues to commit criminal trespass or
mischief, the right of defence continues to remain vested in the defender in
these two cases.
(4)
In
case of house breaking by night: The right of private defence of property
against house-breaking by night continues as long as the house-trespass which
has been begun by such house-breaking continues. So where a trespasser leaves
the premises after committing house breaking by night, the right of private
defence against him comes to an end.
Case Study
•
In Nga Pu Ke v. Emp. paddy sheaves belonging to
the accused were removed illegally by certain person. The accused attacked the
cart men in whose carts these were being carried away. The cart men jumped off
the carts and ran away leaving the sheaves and the carts. The accused chased
and attacked them resulting into death of one of them. The Court held that as
the property, the paddy sheaves, had been recovered the accused had no longer
any right of private defence in case of theft and were, therefore, liable for
causing the death.
•
In Karamjit Singh v. State, an unarmed Sarpanch
of a village went on to a disputed land in possession of the accused who
attacked him causing serious injuries. The Punjab and Haryana High Court held
that since the victim had committed a simple criminal trespass the defender did
have a right of private defence against him but not up to the extent of causing
serious injuries because the victim had not given any reasonable apprehension
to the accused of committing or attempting any offence.
•
In Rajesh Kumar v. Dharamvir, the complainant
damaged the outer door of the house of the accused which amounts to mischief.
The Supreme Court held that the accused was entitled to exercise the right of
private defence so long as the complainant continued in the commission of
mischief, and since the accused had come to the place of occurrence and
attacked the complainant after the latter had damaged the outer door of his
house, the accused had no right of private defence.
Section 106: Right of private defence against deadly
assault where there is a risk of harm to innocent person.
Description:
This section removes an impediment in the right of
private defence. The impediment is the doubt in the mind of the defender as to
whether he is entitled to exercise his right even when there is a possibility
of some innocent persons being harmed by his act. The section says that in the
case of an assault reasonably causing an apprehension of death, if the defender
is faced with such a situation where there exists risk of harm to an innocent
person, there is no restriction on him to exercise his right of defence and he
is entitled to run that risk.
Scope:
The law of private defence is based on two cardinal
principles:
1. Everyone
has the right to defend one’s own body and property as well as another’s body
and property.
2. This
right cannot be used as a pretense for justifying aggression i.e. for causing
harm to another person nor inflicting more harm than is necessary.
With these principles in mind law provides certain
grounds when a person can cause harm to an innocent person while practicing
self defence. Only
when one’s life is in danger,
•
there is no way of exercising right of private
defence without putting innocent person at the risk of harm, and
•
cannot be exercised to retaliate or take revenge
of past injury.
Case
Study:
Khandokar Saiful Islam
Vs. State (50 DLR AD 126) – The right of private defence of the body
extends to voluntary causing of death if the offence which occasions the
exercise of the right to an assault which may cause the apprehension of either
death or grievous hurt.
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