INTRODUCTION:-

It is well established rule that “Criminality is never to be presumed and the accused must be regarded as innocent until the contrary is proved”. Criminal Jurisprudence says that “the evidence against the accused must be such as to exclude, to a moral certainty, every reasonable doubt about his guilt and if there be any reasonable doubt about his guilt he is entitled to be acquitted”.

[1]It is not and cannot be disputed that a criminal case is a “proceeding” within the meaning of Section 102 of the Indian Evidence Act, 1872, and that the burden of proof in such a proceeding lies on the prosecution, for the simple reason that if neither the prosecution nor the defence leads evidence the accused is entitled to be acquitted.

If in a criminal proceeding an accused person pleads in defence any “exception” or “proviso” referred to in Section 105 of the Indian Evidence Act, 1872, the existence or absence of the “exception” or “proviso” becomes a “fact in issue” as defined by Section 3 of the Indian Evidence Act, 1872 of the Act. Section 3 inter alia enacts that ‘facts in issue’ means and includes any fact from which, either by itself or in connexion with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding. Necessarily follows. 

[2]Right of private defence of person and property is recognized in all free, civilised, democratic societies within certain reasonable limits. Those limits are dictated by two considerations: (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences. A legal philosopher Michael Gorr in his article “Private Defence” (published in the Journal “Law and Philosophy” Volume 9, Number 3 / August 1990 at Page 241) observed as under:

“Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed “private defence”, i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same”.

[3]The right of private defence need not necessarily be exercised for the defence of one’s own person; it can be exercised for the defence of the person of another one. So long as an assembly of persons is acting in exercise of the right of private defence it cannot be an unlawful assembly. An assembly though lawful to begin with may in the course of events become unlawful. So long as the accused persons were acting in exercise of right of private defence, their object was not unlawful and so there was no unlawful assembly but once they exceeded the right, the assembly ceased to be lawful and became an unlawful assembly. There too only such of the members of the assembly who shared the object of doing anything in excess of the exercise of right of private defence, alone would be liable to be punished for the acts committed in prosecution of the common object or for their individual unlawful acts. The assemblage of accused persons, five or more in number, cannot wholly be held liable to conviction with the aid of Section 149, IPC unless the whole assembly shared the common object of doing anything in excess of the exercise of the right of private defence. (PARA No.30).

BACKGROUND:-

[4]The Hon’ble Supreme court has observed that “The right to protect one’s own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said: “It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress….. It concerns the public safety that every honest man should consider himself as the natural protector of every other.” But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property”.

[5]In K.M. Nanavati v. State of Maharashtra, it is observed by the Hon’ble Supreme Court that:

“In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution’ to prove ‘the guilt of the accused. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that Section the Courts shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the nonexistence of such circumstances as proved till they are disproved. This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients, of the offence with which the accused is charged; that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary then real. Indeed, there is no conflict at all.”

[6]This indifference displayed by the Administration is pregnant with far-reaching fatal implications. Disregard of the law laid down by the higher Court amounting to disobedience by the Administration, display lack of faith in the Rule of law. It impairs efficacy of superintending powers of this Court over these Tribunals. It compels die litigants to rush to this Court, many of whom may have been driven to acquiesce by sheer inability to do so. It also impairs the confidence of the people in the inquiries conceived under the Act. It emboldens the authorities to afford to be arbitrary and unresponsive to the true requirements of the situation and breeds companion evils. It unnecessarily adds to the already piling explosive arrears of this Court. It also prolongs the life of the litigation to the detriment of the intended beneficiaries like Adivasis. Nobody doubts the concern of the administration towards growing explosive arrears in the Courts and need of the speedy disposal of the cases affecting social legislations and yet their contribution by such acts and omissions to the sorry plight of the litigants is too apparent to escape attention. It is indicative of the lack of the coordination between its different wings. The sooner it is remedied the better. It needs to be appreciated that effective implementation of the objectives of the every social legislation inevitably involves trial of the issues arising thereunder and there cannot be short-cut to the essential minimum procedural safeguards guaranteed by the Constitution. It can be speedily and effectively implemented not by arbitrary ad hoc methods displayed by such administrative instructions but by:-

(1) entrusting the trial to experienced senior officers,

(2) ensuring speedy disposal by reserving them exclusively for this purpose, and by increasing their strength, if necessary,

(3) reducing the number of appeals,

(4) requiring the Appellate Authorities to dispose of the appeal summarily by exhaustive judgments at the stage of admission, when these do not disclose merits,

(5) extending free legal aid to them instead of eliminating lawyers from the scene, and

(6) watching the progress of the case at every stage through their law officers.

BASIC PRINCIPLE:-

The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.

LEGISLATURE & JUDICIAL VIEW:-

[7]The Hon’ble Supreme Court held that “In our opinion, the facts found by the High Court are sufficient to afford a right of private defence. Under section 97 of the Indian Penal Code the right extends not only to the defence of one’s own body against any offence affecting the human body but also to defending the body of any other person. The right also embraces the protection of property, whether one’s own or another person’s, against certain specified offences, namely theft, robbery, mischief and criminal trespass. The limitations on this right and its scope are set out in the sections which follow. For one thing, the right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence. Another limitation is that when death is caused the person exercising the right must be under reason- able apprehension of death, or grievous hurt, to himself or to those whom he is protecting; and in the case of property, the danger to it must be of the kinds specified in section”.

[8]In Raghavan Achari v. State of Kerala the Hon’ble Supreme court observed that “No court expects the citizens not to defend themselves especially when they have already suffered grievous injuries”.

[9]In Puran Singh & Others v. The State of Punjab the Hon’ble Supreme court observed that in the following circumstances right of private defence can be exercised :-

i. There is no sufficient time for recourse to the public authorities ii. There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned. [10]In James Martin v. State of Kerala, the Hon’ble Supreme court again reiterated the principle that the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that “the preponderance of probabilities” is in favour of his plea.

[11]In Munshi Ram & Others v. Delhi Administration, this court observed that “it is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of materials available on record.

INDIAN PENAL CODE

Sections 96 to 106, IPC, deal with the right of private defence. Sections 97, 99 and 100, IPC, are reproduced as under:

97. Right of private defence of the body and of property. – Every person has a right, subject to the restrictions contained in Section 99, to defend-

First. – His own body, and the body of any other person, against any offence affecting the human body;

Secondly. – The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

99. Acts against which there is no right of private defence. – 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 in cases in which there is time to have recourse to the protection of the public authorities.

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 defence.

100. When the right of private defence of the body extends to causing death. – The 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 descriptions hereafter enumerated, namely:

First. – 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.

Exception 2 of Section 300. IPC, is also reproduced as under:

Exception 2. – Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

12. Section 105 of the Evidence Act is also necessary to be considered for adjudication of the present matter, which reads as under:

105. Burden of proving that case of accused comes within exceptions; – When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.

(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.

(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, and shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A.

In the case of [12]Samuthram alias Samudra Rajan v. State of Tamil Nadu, the Madras High Court held that “Plea of self-defence When the prosecution has established its case, it is incumbent upon the accused, under section 105 to establish the case of his private defence by showing probability”.

In the case of [13]Rizan v. State of Chhattisgarh, the Hon’ble Supreme Court has held that “The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record”.

[14]The Hon’ble Supreme court has given the following principles on scrutiny of the several judgments:

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly    confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv)The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

CONCLUSION:-

[15]“Every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self-defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities.” Observed by the Hon’ble Supreme Court In State of Madhya Pradesh v. Ramesh.

[16]“The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this court, to adopt tests by detached objectivity which would be so natural in a court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances”, observed by the Hon’ble Supreme court In Vidhya Singh v. State of Madhya Pradesh.

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[1] Parbhoo And Ors. vs Emperor AIR 1941 All 402.

[2] Darshan Singh vs State Of Punjab & Anr on 15 January, 2010 CRIMINAL APPEAL NO. 1057 of 2002.

[3] In Kashi Ram v. State of M.P. Appeal (crl.)  320 of 2000 (Hon’ble Supreme Court).

[4] Darshan Singh vs State of Punjab & Anr. on 15 January, 2010 CRIMINAL APPEAL NO. 1057 of 2002.

[5] [1962] Suppl. 1 SCR 567

[6] Shaikh Gulab Chandu Khatik vs The State Of Maharashtra And Ors. AIR 1979 Bom 71, (1979) 81 BOMLR 364

[7] Amjad Khan vs The State on 20 March, 1952 : 1952 AIR 165, 1952 SCR 567

[8] 1993 Supp. (1) SCC 719

[9] (1975) 4 SCC 518

[10] (2004) 2 SCC 203

[11] (1968) 2 SCR 455

[12] (1997) 2 Crimes 185 (Mad).

[13] AIR 2003 SC 976.

[14] Darshan Singh vs State Of Punjab & Anr on 15 January, 2010 CRIMINAL APPEAL NO. 1057 of 2002.

[15] (2005) 9 SCC 705

[16]  (1971) 3 SCC 244