Right of private defence to kill the assailant in certain circumstances

Right of private defence to kill the assailant in certain circumstances

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A lot of controversy has been created in the media about the statement of DGP Haryana Shri K.P. Singh (who happens to be my batch-mate in my previous service) about the right of private defence, in which he is reported to have said that a common man has the right to take life of a criminal. “If someone insults a woman or tries to kill a person, then the law empowers a common man to kill that person. This is not just the powers vested in the police, if someone is insulting any mother and sister, if somebody tries to immolate a house or shop, or if someone tries to kill a person in front of you, then a common man has been empowered by the law to kill that person,” the DGP is reported to have said.

It appears that his statement has been sensationalized and might perhaps also have been quoted out of context. It is a fact that every person (including a common man, or aam aadmi) has a right of private defence which can go even to the extent of killing the assailant in certain circumstances. I don’t know what exactly was stated by the DGP Haryana, but the law in this regard is very clear. Section 100 of IPC states that the right of private defence given to every person can go even to extent of causing the death of the assailant when the assault results in one of the following situations:

(1) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

(2) Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

(3) An assault with the intention of committing rape;

(4) An assault with the intention of gratifying unnatural lust;

(5) An assault with the intention of kidnapping or abducting;

(6) 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.

(7) An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

However, it is important to point out that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Thus, when it is possible to approach the police, one cannot take the law in his own hands and exercise his right of private defence. Moreover, 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 defence. Thus, if you can repel the assault by simply causing hurt to the assailant and he runs away, you cannot kill him unnecessarily (say, by chasing him) merely because his assault came in one of the above categories. There are a few other circumstances mentioned in Section 99 of IPC when the right of private defence is not available, such as:

  • 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 by law.
  • 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 the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

Another important issue worth remembering is that in exercise of the right of private defence if someone causes death of the assailant, he may still have to face the case of murder. It is almost certain that an offence would be registered against him in the first instance. Then, even during the investigation, it is very rare that the police would fully recognize his right of private defence and close the investigation and file a closure report exonerating him. Generally, the police will charge sheet with the case of murder (section 302 IPC) or culpable homicide (section 304 IPC), and it is only during the trial of such case that he can provide evidence that he acted in his right of private defence and that too within justifiable limits. Here also, if it is found that he exceeded the right of private defence (by causing more harm than was necessary), while he may not be convicted of the offence of murder, he may still be convicted of a lesser offence.

As criminal trials (and then appeals) in India take notoriously long periods of time to complete, the person exercising right of private defence has to undergo a long period of harassment as an accused person even if he exercised this right validly in accordance with law. He has to show with evidence that one of the above situations actually existed which gave him a right of killing the assailant and that in fact, there was an assault in the first instance. He also has to show that he did not cause more harm than was necessary. It is not an easy task. Therefore, one has to keep in mind the fact that exercising one’s right of private defence is not without its own risk. Even if he proves himself innocent in the end, by that time he would have lost some 20-30 years and many of those years might actually have been in jail.

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