Criminal Law has two elements; mens rea and actus rea. Mens rea is a guilty mind and actus rea is the guilty act. It has been derived from the Latin maxim, “actus non facitreum nisi mens sit rea”. There is no criminal liability if any of these two elements are absent. The General Exceptions take place in the absence of mens rea. Chapter IV of the Indian Penal Code, 1860 provides for these. General exceptions can be further classified into two types of defences; excusable and justified defences.
Excusable Defences
1. Mistake of fact (S. 76 & 79)
2. Accident (S. 80)
3. Infancy (S. 82 &83)
4. Insanity (S. 84)
5. Intoxication (S. 85 & 86)
Justified Defences
1. Judicial Acts (S. 77 & 78)
2. Necessity (S. 81)
3. Consent (S. 87-89 & 92)
4. Communication (S. 93)
5. Trifle Acts (S. 95)
6. Duress (S. 94)
7. Private Defence (S. 96- 106)
Private Defence under Chapter IV
The defence of private defence has been provided under the Indian Penal Code, 1860 from S.96 to 106. The laws provided in these sections provide for defence against a person and property. Hence, these provisions give the power to a person to protect his own body and property. Body ay be of oneself or another likewise the property might also be moveable or immovable of himself or another in cases of theft, robbery, mischief or criminal trespass or an attempt to do so. However, there are important limits on the right of private defence. Firstly, you cannot claim private defence for an act which under any circumstances justify anything which was no defence but an offence and secondly, the right cannot be claimed when you yourself have initiated the attack.
Case: Laxman v. State of Orissa1
It was held that the right to private defence can only be provided when the person avaiking it is suddenly confronted with immediate necessity to defend which is not of his pwn creation, further the necessity should be present, real and apparent.
The right of private defence does not exist for an act which is not an offence under the Penal Code and can only be availed to repel unlawful aggression and not for retaliation. Private defence will also not be valid in cases of self-defence.
Case: Chacko v. State of Kerala 1
The deceased reached the scene with a chopper after finding out that his brother was surrounded by armed assailants. It was held that no aggressor can claim private defence only on the ground that the deceased had a chopper.
Sec. 98 provides for the right of private defence in cases of unsoundness of mind and others such as due to the reason of youth, maturity in understanding, insanity, intoxication or by misconception, a person would have the right to private defence even if the act is not an offence.
Illustration: A, attempts to kill B due to unsoundness of mind and madness. A will not be guilty of any offence, but B will have the right to private defence in the same manner as if A was sane.
Sec. 100 and 103 of the Indian Penal Code, 1860 deal with death which occurs due to exercising the right of private defence. S. 100 of the Code provides for acts where the right of private defence of body extends to causing death, they are:
1. An assault which causes the apprehension of death.
2. An assault which causes the apprehension of grievous hurt.
3. An assault for commission of rape.
4. An assault for gratifying unnatural lust
5. An assault for commission of kidnapping or abducting.
6. An assault for confining a person,
7. An act or attempt of throwing or administering an acid attack.
Sec. 103 of the Code provides for the right of private defence of property which has caused death, namely;
1. Robbery.
2. Housebreaking at night.
3. Mischief by fire on any building, tent or vessel, which is a human dwelling.
4. Theft, mischief, or house-trespass which causes apprehension that death or
5. grievous hurt.
Burden of Proof
The burden of proof always lies on the accused in the case of the General Exceptions of the IPC. The accused needs to prove his innocence to avail this Chapter.
Frequently Asked Questions
1. Which are the acts where no right to private defence exists?
There is no private defence where there exists no reasonable apprehension of death or of grievous hurt done or attempted by a public servant or by the direction of a public servant who is acting in good faith under his office even if the act is not strictly justifiable by law. There is also no right where there exists time to haverecourse to the protection of public authorities.
2. What is excessive harm?
Excessive harm occurs when there was more harm caused than necessary. For example in the case of Queen v. FukeeraChamar3 where the thief was caught with half his body and head inside the house and was struck with a pole 5 times. The accused was convicted for culpable homicide not amounting to murder.
3. When does the right to private defence of property commence?
The right to private defence commences when the reasonable apprehension to the danger to the property commences.
4. What is justifiable harm?
Justifiable harm is the harm caused during private defence where the harm caused is in proportion to the nature of the act and does not exceed what was necessary.
5. How does self defence differ from private defence?
According to Mayne in Criminal Law, the law of self defence lies on four propositions;
1. Society undertakes a majority of cases about the protection of people and their safety in cases of unlawful attacks on body and property.
2. Aid of society should be resorted to.
3. Where the aid cannot be resorted to, the individual must do whatever necessary to protect himself
4. Violence used must be proportionate
Whereas in private defence there can be said to be two important limits, private defence cannot justify an act which is not a defence but an offence and the person cannot to have initiated the attack.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
References
1. Laxman v. State of Orissa, 1988 Cri. LJ 188 SC
2. Chacko v. State of Kerala, 2001 Cri. LJ 146 SC
3. Queen v. FukeeraChamar,6 WR (Cr.) 50
4. S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central LawPublications, Allahabad
