SECTION 97 IPC – RIGHT OF SELF- DEFENCE – PRIVATE
- Mere reasonable apprehension is enough to put the Right of Self Defence into Operation and it is not necessary that there should be an actual commission of Offence in order to give rise to right of self-defence.
REFER : Darshan Singh Vs State of Punjab & Anr ( 2010) 2 SCC
Suresh Singhal VsState ( Delhi Administration) ( 02-02-2017)
- There must be no harm inflicted than is necessary for the purpose of defence.
- The right to Self- Defence does not commence until there is reasonable apprehension.
REFER : Dominic Varkey Vs State of Kerala, AIR 1971, SC
- When an accused himself is the aggressor he can’t claim any right of self- defence.
REFER : Majin Thomas George Vs State of MP, 1978 Cr L J, 578
- It is a Cardinal principle of law that a person in such situation cannot be expected to modulate his defence step by step and gauge the thrust of his blow(s) in golden scales.
REFER : Prem Singh Vs State of Himachal Pradesh, 1989, Cr L 1903
- When a man is assaulted in the course of a sudden brawl/quarrel he might under certain conditions, protect himself by killing his assailant and rely upon the excuse of self-defence and thus reduce his offence from murder to homicide which only involved forfeiture. The conditions are that he must show, first, that before a mortal stroke ( was) given he had declined further combat; secondly, that he then killed the assailant through necessity in order to avoid his own immediate death.
In all cases of homicide excusable by self-defence or medley it must be taken that the fatal blow was struck upon a sudden occasion, and not pre-meditated, or with malice.
- An exchange of abuses and threats on both sides does not give any of them a right to strike the other physically or with a weapon. No danger to a person arises if one is merely abused and as such no right accrues to the person abused to strike another.
If however, abuse is accompanied by a threat to assault it would be a different matter.
REFER : Paras Ram Vs Rex AIR 1949 : Khatri Bewa Vs State AIR 1952 Orissa
But mere threat not carried out and later completely abandoned followed by retracing of steps by the person threatening, would not justify any assault from the person threatened as he must have been convinced that the person threatening did not mean to carry out the empty threat. Therefore, no provision in the IPC where an accused person can be excused for insulting outburst in the evidence of the alleged right of private evidence.
- The right of private defence commences as soon as a reasonable apprehension of danger lasts or the property stolen is not recovered.
The amount of force justifiable in the exercise of the right is such as is strictly necessary for the purpose.
The right to defend one’s own or another person’s is absolute and unqualified.
- The law makes every allowances to a person who apprehends a reasonable danger to his life from his adversary, and with intent to self-preservation strong upon him, pursues his defence a little further than what to a perfectly by-stander may seem absolute necessary.
REFER : Amjad Khan Vs State Air 1952 SC
- Courts of law are to make all reasonable allowances in favour of the accused and not apply the law in such a manner that person sin the society would become cowards. It must be discovered whether the accused was acting under the instinct of self-preservation or out of anger, malice and feeling of reprisal had intervened.
- When a person is apprehending grave danger to himself and his instinct of self-defence is aroused, he cannot have the mental balance of measuring the degree of assault with which he would deal with his opponent.
- When an accused person commits an act of violence upon another person in circumstances which prove that he is apprehending further violence from that person, nothing further needs to be proved to establish that the accused is acting in exercise of his right of self-defence.
- In order that prosecution should succeed, its evidence must be such as to negate and demolish conclusively the plea of self-defence.
Even if the plea of self-defence is not positively established and the Court is left in doubt that the killing may have been in self-defence the accused is entitled to be acquitted.
- Also, while appreciating evidence on the plea of self-defence if the Court is in doubt whether the accused has succeeded in substantiating his plea of self-defence, it must allow the plea because it is the accused alone who is entitled to the “benefit of doubt”.