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Right to self-defence
NOTHING is an offence, which is done in the exercise of the right of private defence. In order to find out whether the right to self-defence existed or not the entire incident should be examined with care and tn its proper setting. The injuries received by the accused, the imminent threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered on a plea of private defence. The circumstances in which one can exercise the right of private defence arc specified below according to the national legislation.
THE PENAL CODE. 1860 Chapter IV- General exceptions Extent to which the right may be exercised
The right of private defence in no case extends to the inflicting of more harm than it is necessary' to inflict for the purpose of defe nee.
Explanation I -A person is not deprived of die right of private defence against an act done, or attempted to be done, by a public servant, as such unless he knows, or has reason to believe, that die person doing the act is such public servant.
Explanation 2 -A person is not deprived of die right of private defence against an act done, or attempted to be done, by the direction of a public servant. unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
Things done in private defence 96. Nothing is an offence which is done in the exercise of the right of private defence.
Right of private defence against the act of a person of unsound mind, etc 98. When an act, which would otherwise be a certain offence is not that offence by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconci ption on the pan of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
Example
(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 sane.
(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.
Acts against which there is no right private defence
99. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable bylaw.
There is no right of private defence against an act which does not reason- ’ ably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
When the right of private defence of the body extends to causing death 100. Hie right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary' causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descrip -tions hereinafter enumerated, namely: Firstly -Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly -Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly -An assault with the intention of committing rape;
Fourthly -An assault with the intention of gratifying unnatural lust;
Fifthly -An assault with the intention of kidnapping or abducting;
Sixthly - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
When such right extends to causing any harm other than death
101. If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99 to the voluntary causing to the assailant ofany harm other than death.
Commencement and continuance of the right of private defence of the body 102. Tlie right of private defence of the body commences as soon as a reason -able apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such, apprehension of danger to the body continues.
When tlie right of private defence of property extends to causing death 103. 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 the wrong-doer, if tlie 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 housetrespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private d efence is not exercised;
When such right extends to causing any harm other than death
104. If the offence, the committing of which, or the 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 the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned
in section 99, to tlie voluntary causing to the wrong-doer of any harm other than death.
Commencement and continuance of the right of private defence of property
105. fhe right of private defence of property commences when a reasonable apprehension of danger to tlie property commences.
The right of private defence of property against theft continues till the offender has effected his retreat with the property or cither the assistance of the public authorities is obtained, or the property has been recovered.
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.
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.
The right of private defence of property against house-breaking by night continues as long as the housetrespass which has been begun by such house-breaking continues.
Right of private defence against deadly assault when there is risk of harm to innocent person
106. If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
Example
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.
The court would first find out whether the right to self-defence existed or not and consider the case in its proper setting, then only would it decide the punishment.
- Complied by Law Desk.