India Criminal Defense Manual - Various Defense Strategies

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Contents

Introduction

In the process of developing a theory of the case, a legal aid lawyer shall decide whether it is possible to exonerate the client from guilt. If so, the lawyer shall further consider how to prove the innocence of the client at trial. The following are possible defenses for exonerating an accused from criminal liability under the Indian legal framework and applicable circumstances to raise such defenses.

Has the prosecution borne the burden of proof?

Remember that your client is entitled to the right of being innocent until proven guilty. No person shall be found guilty without being judged as such by the Court according to law. It is the prosecution's duty to prove that the client is guilty of the charges against him. It means the prosecution must prove that the facts are clear and the evidence is sufficient.

Before forming other defenses, the counsel should critically scrutinize the bill of prosecution to confirm whether the alleged crime has really occurred or not. If it has occurred, further consider whether the prosecution has presented evidence sufficient enough to support the charge. Consider whether another charge (a lighter charge) fits better with the case evidence.

The following are necessary questions for your consideration:

  • What are the elements of the accused offense? For example:

Self-driven act: Did the client act from his own free will? What evidence has the prosecution presented to prove that the client acted of his own accord?

State of mind: Under what state of mind would the client's act constitute a crime (for example: intentionality, disregard of the outcome, negligence)?

Is the crime a strict liability crime (the prosecutor has no burden to present evidence concerning the accused's intent)? What evidence has the prosecution presented to prove that the client in his actions had the requisite criminal intent, had specific knowledge or skill necessary for committing the act, or was criminally negligent?

Cause and effect: Did the client's act result in the ultimate injury?

Direct cause: Were the client's actions far enough from the charged crime that he should not be subject to any legal responsibility?

Legal obligation: In this situation, does the law stipulate that the client must act in specific ways to exercise his distinctive legal obligation?

  • What laws define the elements of a crime? Are these laws contradictory with each other?
  • How much evidence must be presented in order to sufficiently meet all the required elements of the accused crime? What are the elements of the crime that the client should have been charged with, but was not?
  • Does the evidence presented meet the evidence requirements for all the elements of the alleged offense? What are the legal stipulations regarding evidence for elements of the accused crime? What evidence supports the prosecution's case? What evidence is not consistent with the prosecution's argument?
  • If the prosecutor cannot present sufficient evidence to support the charged offense or even support a lighter offense, the legal aid lawyer shall point out the insufficiency of evidence to thecourt and request that the court either judge the client as innocent or dismiss the charges.

Has the Statutory Time Limit for Criminal Prosecution Expired?

In view of the Section 468 of The Code of Criminal Procedure no court shall take cognizance of an offence for the following category after the expiration of a period of limitations as follows:

1. Six months, where the offence is punishable with fine only

2. One year,if the offence is punishable with imprisonment for a term not exceeding one year

3. Three years,if the offence is punishable with imprisonment with a term exceeding one year but not exceeding three year. However, any court may take cognizance of the offence after the expiration of the said period of limitations if it is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary in the interests of justice.[1]

Is it Possible to Make an Affirmative Defense if the Facts of the Crime Cannot be Denied?

In an affirmative defense, counsel does not deny the elements of the alleged offense but still attempts to prove the innocence of the accused. Such a defense requires counsel to present sufficient evidence, including witness testimony or material evidence. Even if the lawyer does not deny that the accused committed the alleged acts, the defense will try to prove that the acts were justified or provide another legal defense for negating the accused's criminal liability.

Can the legal aid lawyer prove the innocence of the accused?

This is one type of affirmative defense and aims to prove that the accused did not commit the crime, i.e. that the accused could not possibly have committed the alleged offense.

The two most common methods of proving the accused innocent are: proving the accused's alibi and using the material evidence to prove that the alleged offense could not have happened. In employing the first strategy, the criminal legal aid lawyer can provide credible evidence, such as the testimony of a witness at the scene to prove an alibi; if adopting the second strategy, the legal aid lawyer can cite credible evidence demonstrating the weaknesses of the material evidence against the accused, and explain how these limitations or weaknesses exclude the possibility of the alleged offense. For example, suppose the accused was accused of stabbing the victim, and the evidence provided by the prosecutor indicates that the victim was stabbed by an assailant who used his right hand. In such circumstances, if the criminal legal aid lawyer can provide credible evidence to prove that the accused's right hand was previously injured and that he could not have used it at the time that the crime was committed; this demonstrates that the accused could not have committed the alleged offense.

Can the legal aid lawyer justify the crime committed by the accused?

Justifying the crime for the accused is another type of affirmative defence wherein the accused does not deny the alleged offense, but argues that he should not bear legal responsibility for it. Counsel is arguing that the accused committed the alleged offense for justified causes that are socially accepted or that conform to moral principles.

1. Statutory Excuses that Exclude Transgression: Justifiable Defence and Averting Danger in an Emergency

2. Legally Prescribed Excuses for Mitigation:

List of defences described in Chapter IV of the Indian Penal Code

1. Act of a person bound by law to do a certain thing[2]
2. Act of a Judge acting judicially[3]
3. Act done pursuant to an order or a judgment of a Court[4]
4. Act of a person justified, or believing himself justified, by law[5]
5. Act caused by accident[6]
6. Act likely to cause harm done without criminal intent to prevent other harm[7]
7. Act of a child under 7 years[8]
8. Act of a child above 7 and under 12 years, but of immature understanding[9]
9. Act of a person of unsound mind[10]
10. Act of an intoxicated person[11] and partially exempted[12]
11. Act not known to be likely to cause death or grievous hurt done by consent of the sufferer[13]
12. Act not intended to cause death done by consent of sufferer[14]
13. Act done in good faith for the benefit of a child or an insane person by or by the consent of guardian[15]
14. Act done in good faith for the benefit of a person without consent[16]
15. Communication made in good faith to a person for his benefit[17]
16. Act done under threat of death[18]
17. Act causing slight harm[19]
18. Act done in private defence[20]

The list of defences described in Chapter IV of the Indian Penal Code can be categorized as follows:

Judicial Acts

This category only applies to court officials.

Judges presiding over cases are exempted if acting in good faith and under lawful powers. S. 77. of the Indian Penal Code says, "Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him."[32] Applicable only to Judges, under this section, a Judge is exempted in those cases he normally presides over and any other cases he may so preside over so long as good faith and lawful powers are present. A Judge must be acting within the Judges jurisdiction to be protected.

Agents of the court are protected so long as they believe the court has jurisdiction. S. 78. of the Indian Penal Code says, "Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a court of Justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the court had such jurisdiction." [33] Applicable to those acting pursuant to a court order, under this section, an agent of the court is exempted in those cases the agent believes the court had jurisdiction. Actual jurisdiction is not required so long as the agent of the court believes the court had jurisdiction. Mistake of law can be a defence.

Mistake of Fact

Mistake must be of fact and not of law. The burden of proving there is a mistake of fact is on the Accused and the court will assume there is not a mistake of fact unless the Accused brings the evidence forward.[34] An Accused does not bring the evidence forward until after the prosecution has crossed the barrier of innocence. In Bai Ramilaben v. State of Gujarat, a mother accused of killing her four children, the prosecution failed to produce a medical report as to the mother's mental state as an element to the crime and the mother did not have to establish a defence.[35]

Those bound by the law to follow an order, mistake of fact is a defence where the Accused believes in good faith Accused was bound by the law. S. 76. of the Indian Penal Code says, "Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it." [36] In the case of orders by parents and masters, mistake of fact will not be a defence. A police officer who tortures an accused will only be allowed this defence if the police officer is under fear of death from superiors.

In Emperor v. Gopalia Kallaiya, a police officer from another part of India was protected under this section when the officer in good faith and under warrant came to Bombay to arrest a person, but arrests the wrong person.[37] In Sheo Surun Sahai v. Mahomed Fazil Khan, a police officer who saw a horse tied up in B's premise that resembled a horse the officer's father had lost a few days prior, the officer jumped at the conclusion that the horse was the officer's father's horse and when the officer discovered that B had purchased the horse from S, the officer sent for S, charged S with theft, and required S to make bail without investigating; the court held that the officer did not act with good faith so the officer was not protected.[38]

Anyone acting in good faith believing to be justified in law, mistake of fact is a defence. S. 79 of the Indian Penal Code says, "Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it."[39] Example: A appears to B to be committing a murder. A believing in good faith B has committed a murder, seizes B. A has not committed any offense even if A was mistaken that B had committed a murder.

The distinction between s. 76. and 79. of the Indian Penal Code is that in s. 76. the accused is assumed to be bound by the law to act and in s. 79. the accused is justified in acting. Both require a bona fide intention. Accused cannot plead general good motive, but must specifically believe that Accused was bound by the law or in best judgment. The mistake must be one of fact and not of law. Honest and reasonable mistakes are matters of fact.

Ignorance of a fact can make the act morally involuntary. In Levett, the Accused on reasonable grounds swings a sword at what he believed to be a burglar and killed a man, had not committed an offense since he would have been in the same situation had the person been a burglar.[40] In State of Orissa v. Khora Ghasi, a farmer protecting his farm from a bear, fires an arrow and kills a man who was hiding in the bushes; the court held that the farmer was not held liable under section 79 of the Indian Penal Code.[41] In Keso Sahu v. Saligram, while helping the police stop a car reasonably suspected of carrying smuggled rice which turned out to be incorrect, the accused could not be prosecuted for wrongful restraint.[42] However, if the act is clearly wrong, then mistake of fact will not be a defence.[43]

In Bhawoo Jivaji v. Mulji Dayal, a police constable saw complainant carrying three pieces of clothes that the constable suspected to be stolen, approached the complainant and questioned the complainant. The constable not satisfied with complainant's answers and the complainant's refusal of allowing the constable to inspect the clothes caused a scuffle. The complainant was arrested by the constable, but released by the Inspector of Police. The complainant prosecuted the constable for wrongful restraint and confinement. The court held that asking the questions to clear up the situations was evidence of good faith and protected under this section (s. 79.) of the Indian Penal Code.[44]

Mistake of law is no defence, i.e. mistake as to the existence of a law or as to what is the law.[45] Those who make a mistake of law must abide by the consequences of the error.[46] Application extends to even those circumstances in which there is no way for the person to have known of the existence of the law.[47] In addition, the law does not have to be published or known outside of India to be enforceable.[48]

In King v. Tustipada Mandal, the court laid out guideline rules for either mistake of fact or mistake of law.[49]

"(1) That when an act is in itself plainly criminal, and is more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence.
(2) That where an act is not prima facie innocent and proper, unless certain circumstances co-exist, then ignorance of such circumstances is an answer to the charge.
(3) That the state of the accused person’s mind must amount to absolute ignorance of the existence of the circumstance which alters the character of the act, or to a belief in its non-existence.
(4) Where an act which is in itself wrong i.e., under certain circumstances, criminal, a person who does the wrong act cannot set up as a defence that he was ignorant of the facts which turned the wrong into a crime.
(5) Where a statute makes it penal to do an act under certain circumstances, It is a question upon the wording & object of the particular statute, whether the responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case his knowledge is immaterial."[50]

Accident

This category is aimed at those who are innocent or acting in a genuine lawful manner, i.e. without criminal intent or knowledge of the negative impacts of their actions. Section 80 of the Indian Penal Code says, "Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution."[51] Accident is an act that is done without the intent of causing it, and is an act that a reasonable person should not take precautions in doing that act.[52] Another words, an accident occurs out of the ordinary course of things.[53] Example: A is working with an axe when the head flies off and kills someone standing by; if there is no lack of proper caution that was not taken, then the act is excusable.

In Patreswar Basumatary, two brothers were sleeping in the same bed when one of them in a state of half-sleep felt someone throttling him, picked up a dao and administered a deathly blow that was received by his brother; the court found the brother's act was not voluntary as the act lacked intention and motive.[54] In R. v. Clarke, a women charged with theft at a super market defended that at the time of the theft she was in a state of absent-mindness from depression which was verified by medical evidence; the court accepted this defence.[55] In Sita Ram, the Accused, a day labourer, who was digging with a spade when another labourer came up too close and was struck in the head; the court found this was an accident, but still fell under 304A an act of criminal negligence.[56]

In Raja Ram, the accused fired shots at his target, but missed and killed an innocent party; the court found that his case fell within s. 80 read with ss. 96 and 100.[57] In Girish Saikia, the accused person's brother tried to strangulate accused at night and in response Accused, fearing imminent death, picked up a piece of bamboo which struck the father who was trying to intervene which killed the father; the court found Accused was acting in self-defence as to the brother and the blow to the father was an accident.[58] In Rangaswamy, the court held that shooting with an unlicensed gun does not bar the Accused from using s. 80 as a defence.[59] Shooting without knowing the identity of the victim shows a strong preference for a lack of care and caution.[60]

Absence of Criminal Intent

An act intended to prevent others from harm and lacks criminal intent will be a defence even if the act is likely to cause harm.[61] Section 81 of the Indian Penal Code says, "Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation:-It is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm." Example: A, a ship captain of 100 persons, who finds himself in a situation without fault or negligence that he cannot maneuver without destroying either boat B with 20 persons or boat C with five persons, A will have a defence in choosing the lesser of the two evils if A, in good faith, choose C for the purpose of saving harm. The test is (1) there must exist a grave danger, (2) there must be no choice but to commit the lesser of two evils, even though an innocent party may be harmed, (3) there must be a lack of criminal intent, and (4) the accused must rightly choose the lesser of the two evils.[62] If the case rests upon proof of intention, then the court must have evidence of facts sufficient to support a finding that the intention existed; no doubt can be used to infer intention but is not conclusive.[63] In addition, where the evidence against the accused is clear, cogent and reliable, the motive is irrelevant.[64] The nature of the mens rea will depend on the nature of the Act and its provisions.[65] Mens rea is an element in every case except in three cases:

(a) not a criminal case, but which are prohibited by public interest;
(b) public nuisance; and
(c) criminal, but are more a form of enforcing a civil right.

The mens rea is different for each type of offence. For Indian Penal Code sections, 87-89, 91-93, 95, 100, 104 and 106, harm means only physical harm.[66]

In Bostan, an out of uniform Chief Constable was kicked by a sentry as he made his way through a crowd of sentries, the sentry was justified as the kick was made to prevent a greater harm under this section.[67] In Dhania Daji, a person placed poison in his toddy pots to discover who the thief was of his pots and knowing that placing the poison in the pots would cause injury, and then the toddy was drunk and caused injury to a soldier who had purchased the toddy from a vendor; the person was not allowed to use the section 91 defence.[68]

Anyone under the age of seven cannot be prosecuted for a crime. Section 82 of the Indian Penal Code says, "Nothing is an offence which is done by a child under seven years of age." Those under the age of seven are ipso fact, Latin for "by the fact itself" in answer to the prosecution, i.e. the defence would be the accused is a child and cannot be prosecuted for the crime.[69] It is the burden of the accused to bring to light evidence of the age being under seven.[70] Prosecution of a child will continue even if the child ceases to be a child at the time of trial or punishment.[71]

Anyone under the age of twelve, and above seven with an immature understanding will have a defence. Section 83 of the Indian Penal Code says, "Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion." The burden rests with the accused to bring forward to the court the age and level of maturity of the accused and where such evidence is not brought forward, the court will assume the accused assumed to act in the way the accused acted.[72] The immaturity is one of intellect and must be exceptional.[73] The accused is one who does not know the nature or physical consequences of their actions.[74]

In Ulla Mahaparta, a boy of eleven years of age picked up a knife saying he was going to cut the Deceased to bits and did so, the court found that the accused did what he intended knowing that cutting with a knife would carry out his intentions.[75] However, in A. v. DPP, a boy of eleven years of age picked up a brick, threw the brick at a police vehicle, and ran away; the court concluded that the boy running away itself was not enough to prove that the boy knew he was committing criminal activity as the situation could also be interpreted as a naughty child running away from a teacher even when the naughty child has not committed criminal activity.[76] In cases related to theft, a child younger than twelve, but older than seven who commits a theft and then turns around and sells the stolen property, the child does not fit into this section (s. 83) as the understanding of selling the stolen property is enough to show a sufficient level of maturity.[77]

Anyone of unsound mind is incapable of knowing acts which are wrong or unlawful. Section 84 of the Indian Penal Code says, "Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." This section does not apply if the accused knew his acts were wrong, regardless of whether he knew they were unlawful acts, or knew that his acts were unlawful, regardless of whether he knew they were wrong.[78] The burden of proving an unsound mind rests on the accused.[79] The accused bears the burden only after the prosecution has proved its case.[80] However, where a history of insanity is discovered during the investigation stage, the burden is on the investigator to subject the accused to a medical examination and bring the evidence before the court, and if this is not done then the benefit of the doubt is given to the accused.[81] The prosecution does not have to prove that the accused knew the consequences of his acts or the accused knew the law as these are presumed to be known to every person.[82] An absence of motive is one of the factors to be taken into consideration.[83]

Persons of unsound mind are:

(1) an idiot, i.e. anyone from birth is of non-sane memory[84]
(2) anyone made non compos mentis by illness and only those acts made under the illness[85]
(3) a lunatic, i.e. anyone afflicted by mental disorder at certain periods and vicissitudes[86]
(4) intoxicated, see s. 85

Elements:

(1) The accused must be under the defect at the time of committing the act and not know what he was doing, or if he does know what he is doing then no know that what he was doing was wrong.[87] If he does know then he is responsible.[88] A plea of insanity will not save the accused.[89] In making the determination of whether the accused was under the defect at the time of committing the act, the court can take into consideration relevant circumstances such as the behavior before and after committing the act.[90] Admitting the defence of insanity based solely on the character of the crime is dangerous.[91] The mere occurrence of prior insanity is not sufficient to demonstrate insanity.[92]
(2) Only the unsoundness of mind that impairs the faculty of the mind will be exempted under this section.[93] The unsoundness of mind would make it so that the accused does not know his actions to be wrong or against the law.[94] An agitated does not necessarily imply an effected mental state.[95] Pretend insanity are not cases of insanity.[96] Acts which are barbaric in nature must be punished severely as inhuman acts.[97] Anyone who is not insane, but was under a partial delusion should be treated as if the delusions were real.[98] Intoxication is no excuses, however, intoxication that causes delirium tremens to such a degree that madness is induced, even for a short period, that makes distinguishing from evils is an excuse.[99] Such a defence is only available where the accused can no longer control his drinking.[100]
(3) The accused must not understand the nature of the act, i.e. not understand what is wrong or contrary to law.[101] Mere absence of a motive cannot bring accused under this section.[102] A sudden impulse with a lack of motive will generally not be enough for this section.[103] Similarly, a lack of motive and making no attempt to leave the scene of the crime is not enough for this section as well.[104] However, in Lakshman, the accused was insane for some months prior and made no effort to leave the scene of the crime, the accused was afforded a defence under this section.[105] Where an examination shows that an unsound mind may have existed and is contradicted by testimony from close relations, then this section will not apply.[106] The difference between medical insanity and legal insanity, is that medical insanity refers to the accused person's ability to cognize his acts on others whereas legal insanity accused person's ability to cognize his acts in relation to himself.[107] However, for legal insanity there must first be medical insanity.[108]

In cases where the accused has committed multiple murders under mental derangement the court has held that (i) absent motive, (ii) absent secrecy, (iii) want of pre-arrangement, and (iv) want of accomplices, the circumstances were insufficient to support an inference of unsound mind.[109] Other mental illness' are exempted including paranoid schizophrenia,[110] and automatism.[111]

The defence of insanity must be made by the accused.[112] The accused person's burden is to make the accused person's defence probable, but merely showing a medical certification is not enough.[113] However, the burden of the prosecution to make the case beyond a shadow of doubt does not change.[114] The accused person's defence of insanity may be recognized by the facts.[115] However, mere eccentric behavior is not enough to prove insanity based on the facts.[116]

Anyone who is intoxicated against their will and not capable of making reasonable judgments has a defence. Section 85 of the Indian Penal Code says, "Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will." The person must be incapable of self-restraint.[117] Voluntary intoxication is no defence.[118] However, voluntary intoxication can be factor where do to voluntary intoxication, the accused is not capable of forming the specific intent of the crime, the degree of the crime can be reduced.[119] Also where do to voluntary intoxication, the accused has formed a diseased condition of the mind that impairs the accused person's ability to recognize what is wrong or against the law, the accused would have a defence.[120]

Anyone intoxicated who commits an offence will be treated the same as if they were not intoxicated. Section 86 of the Indian Penal Code says, "In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will." Presumption is in regards to knowledge and not in regards to intention.[121] This presumption can be rebutted by showing that at the time of the crime that his mind was so affected that he was incapable of forming his own intentions in regards to the requisite of the charge.[122]

Any act done in good faith for the benefit of another that is not intended to cause death. Section 88 of the Indian Penal Code says, "Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm." Example, A, a surgeon, acting in good faith, but knowing that a particular procedure carries a high degree of fatality, performs the operation on B who has severe pain and consents to the procedure. A has committed no offence.[123] Similarly, those being attacked by beasts and can only be rescued by someone firing a shot that could be fatal to the attacked should not be punished.

Any act done in good faith for the benefit of a child or a person who is insane (or by consent of guardian) that is not intended to cause death. Section 89 of the Indian Penal Code says, "Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provisos-First: - That this exception shall not extend to the intentional causing of death, or to the attempting to cause death; Secondly: - That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; Thirdly: - That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death of grievous hurt, or the curing of any grievous disease of infirmity; Fourthly:- That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend." This section empowers guardians of children under twelve and insane persons to consent for their benefit on the infliction of harm on the child or insane person made in good faith.

In cases where sections 88 and 89 are not applicable, a good faith act without consent can be done for the benefit of another. Section 92 of the Indian Penal Code says, "Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provisos - First-That this exception shall not extend to the intentional causing of death, or the attempting to cause death; Secondly- That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; Thirdly: -That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; Fourthly:-That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend." This section is aimed at cases that do not fit into sections 88 and 89, and are aimed principally at medical practitioners. These are situations where there is a temporary guardianship that has happened. Examples:

(a) A is severely injured and cannot judge for himself. No one is around except B a medical doctor who performs a life saving procedure in good faith for the benefit of A. B has committed no offence.
(b) A is being mauled by a dangerous animal. B does not have a clear line of shot, but if B does not act, A will not survive. B not intending to kill A and acting for the benefit of A, B fires and mortally wounds A. B has committed no offence.
(c) A, a young child, is trapped in a fire. B also in the room sees no way out except out of the window where there are people holding out a blanket to catch the child. Even knowing that the fall is likely to kill the child, by throwing the child below, B has not committed any offence.

Good faith communications. Section 93 of the Indian Penal Code says, "No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person." Example, A, a surgeon, in good faith tells B that B's son will not live. B dies from shock. A has committed no offence. The communication must be made in good faith and for the benefit of the person to whom it is made.[124]

Acts committed under threats can be excused. Section 94 of the Indian Penal Code says, "Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanation 1:- A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2:- A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law ; for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception." A person can be excused for acts committed under threat except (1) murder,[125] or (2) offences against the State.[126] The burden is on the accused to bring such evidence forward, as mere pressure or temptation will not be enough and must be a real fear of instant death.[127]

Consent

A consented act is not intended or known to be likely to cause death or harm. Section 87 of the Indian Penal Code says, "Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm." Example, A and B agree to wrestle for fun. This agreement implies that in the course of wrestling, any injuries that are sustained within the rules by the other are consented and no offences occur. However, this section does not allow consent to anything intended, or known to be likely to cause death or grievous hurt.[128]

Consent given under duress, by insane person, or child is not consent. Section 90 of the Indian Penal Code says, "A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age." Although not defining what consent is, this section describes consent not given when:

(1) by a person under fear of injury and the person obtaining the consent knows or has reason be believe the consent is given under fear of injury;
(2) by a person under a misconception of fact;
(3) by a person of unsound mind and is unable to understand the consent;
(4) by a person who is intoxicated and is unable to understand the consent;
(5) by a person under twelve years of age;

Consent requires the act to be done deliberately and with knowledge of the act or with knowledge of the nature of the act.[129] Consent is not the same as submission as every consent involves submission, but a submission alone does not make consent.[130] Lack of knowledge in a submission does not make a valid consent.[131]

Consent to rape is no consent and a rescuer is justified in the use of force.[132]

Consent given under a misconception is no consent i.e., if the party given the consent is aware of the misconception then no consent is present; however, an honest misconception by both parties does not invalidate the consent.[133] Similarly, consent obtained by misrepresentation leading to a misconception of facts will not be a valid consent.[134]

Trifling Acts

Acts which cause slight harm are trifling acts. Section 95 of the Indian Criminal Code says, "Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm." This covers those instances that are within the Indian Penal Code, but are small in impact that they do not rise to the level of prosecution. Example, dipping ink in another man's ink, assault that covers a man in water as a bike drives by a puddle, or pressing against someone on a train. As member of society some degree of interaction is assumed and cannot be prosecuted if the injury is de minimus. This section also covers those instances that are not accidental, but intentional or known to cause harm.[135]

In Narayanan, protestors outside of a liquor shop were excused under this section even though they did prevent some people from going inside of the shop.[136] In Anoop Krishan Sharma, the accused locked the Complainant inside of a factory for a very short period of time and although all of the elements of wrongful confinement were present, only a minimal harm was caused and fell within section 95.[137]

Acts considered trivial included when a accused took pods (almost valueless) from a tree on Government waste land,[138] theft of a cheque with no value,[139] and harm to a Plaintiff's reputation for traveling with the wrong ticket,[140].

Acts not considered trivial where a dismissed policeman gave a blow across the chest with an umbrella to the District Superintendent of Police for rejecting his application to reconsider his case,[141] where the accused tore up a piece of paper that showed the accused person's debt to the Prosecutor even though it was not stamped and therefore not a legal document,[142] and a man of respect was taken by the ear,[143].

Private Defence

In Munney Khan, the Supreme Court said in a general way that the "right of private defence is codified in ss. 96 to 106, IPC, which have all to be read together in order to have a proper grasp of the scope and limitations of this right. By enacting the sections the authors of the Code wanted to except from the operation of its penal clauses acts done in good faith for the purpose of repelling unlawful aggression."[144]

In general, private defence or self defence is excusable. Section 96 of the Indian Criminal Code says, "Nothing is an offence which is done in the exercise of the right to private defence." Only acts which repel unlawful aggression will be given a defence, as mere words are not enough to constitute a defence to the offense, i.e. accused cannot claim a defence that aggressive words incited accused to violence.[145]. In State of Orissa v. Bhagbhan Barik, the accused thinking the deceased was a thief to protect the accused person's property, struck the deceased with a lathi, killing him, outside of the house near a pond; the Court held that there was no private defence of property and the accused was convicted under s. 304 Part II.[146] The entire situation must be examined to make the determination of whether self defence can be a defence, including the injuries inflicted by the accused, the threat to safety, whether the accused had recourse of public authorities.[147] In addition, when it comes to the defence of person or property, the following factors have to be considered:

(i) self defence is not available where there is sufficient time for recourse to public authorities;
(ii) self defence is not available where there is excessive harm than is necessary under the circumstances;
(iii) only in instances where there is reasonable apprehension of death or grievous hurt or hurt to the person or damage to property.[148]

The burden is on the accused to bring to the court a claim of private defence and the burden is discharged by showing to a preponderance of probability in the accused person's favor.[149] However, the right of private defence does not need to be specifically pleaded.[150]

Reasonable force means minimal force under section 99 of the Indian Penal Code. In Jaidev, the Court held that there is no requirement that the accused must first retreat before exercising private defence, i.e. the accused has the right to stand and defend oneself rather than retreat before exercising the right of private defence.[151] In cases where two parties meet armed as aggressors to settle a dispute by force, both parties are aggressors and there is right to private defence.[152] An assembly of five to protect land is not unlawful, but if they continue to use force after their right is over then they have become an unlawful assembly.[153] In State of Rajasthan v. Sughad Singh, the accused was entitled to acquittal when the injuries on the deceased showed that the deceased must have sustained those injuries in a fight.[154] In cases where the accused joins a "free fight" after the deceased has passed, the accused is not entitled to a private defence.[155] In Sikhar Behera v. State of Orissa, two groups were illegally assembling, and a free fight broke out about the possession of land which neither group owned resulting in the death of two persons in the group, neither group was entitled to a private defence.[156] Unexplained injuries on the accused is a heavy factor that may question the prosecution's witness with care, but the injuries themselves do not make a defence.[157] It may strengthen a defence of private defence or may create genuine doubt in the prosecution's case, at the same time, it is not true that a private defence stands prima facie established to shift the burden back to the prosecution.[158] In addition, every minor injury on the accused does not require an explanation.[159] Injuries to the accused not caused during the same incident then accused does not have the right to a private defence.[160] If the accused is the aggressor then no private defence.[161]

In State of Punjab v. Sohan Singh, the accused turned back from the house of the deceased which the accused had just visited, the deceased followed the accused along with deceased's brother and mother and tried to attack the accused from behind; the accused was justified in turning back and shooting the deceased.[162] In Sridhar Das v. State of Orissa, the deceased with deceased's father were putting up a fence to protect land from a dispute, and the accused fatally struck the accused with a lathi; the Court held that since the accused received the injuries as a result of assault by the deceased and deceased's father, the accused was allowed a private defence.[163]

In Makwana Takhat Singh Ratan Singh v. State of Gujarat, a murder case where injuries on the accused and on the prosecution's witness were unexplained, the Court held that it could be said that the injuries were from acting in a right to private defence.[164] In Arjun v. State of M.P., the Court held that where the prosecution could not explain serious injuries on the accused, the accused was entitled to a private defence.[165] In Thakhaji Hiraji v. Thakore Kuber Singh Chaman Singh, the Court said, "Before non-explanation of injuries on the person of the accused by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of serious nature and (ii) such injuries must have been received at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which completes in probability with that of the prosecution."[166] Where the accused has trivial injuries on non-vital parts, but the victim has many injuries including to vital parts which results in death, the accused cannot be said to have been acting in self defence.[167]

The Supreme Court observed: "From a plain reading of the sections (Ss. 96-106) it is manifest that such a right can be exercised only to repel unlawful aggression and not to retaliate. To put it differently, the right is one of defence and not of requital or reprisal. Such being the nature of the right, the High Court could not have exonerated the accused persons of the charges leveled against them by bestowing on them the right to retaliate and attack the complainant party."[168]

Where the right of private defence has not been pleaded, but the accused appears to be the aggressor, the benefit of private defence can still be given to the accused.[169]

A person has the right of private defence for defending their body and property. Section 97 of the Indian Criminal Code says, "Every person has a right, subject to the restrictions contained in the 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 moveable or immoveable, of himself or of any other person, against any act which is an offence failing under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass." This section broadly specifies which offenses the right of private defence can be exercised. Section 99 provides the limitations. Together they make up principles of the private defence. The first clause provides a defence of the body while the second clause provides a defence of property. There is no requirement to retire merely because he has been threatened with violence.[170] The Supreme Court recognized that there is an importance to self-preservation.[171]

An aggressor does not have a right of private defence.[172] In Ramaotar, a mother intervenes in a fight between two groups and dies, the accused was not allowed a private defence.[173] There can be no private defence where the accused intentionally causes more harm than is reasonably necessary for defence.[174] In Nidhan Singh, where no party of the accused received not even a bruise, but the opposing party sustained several deaths, the Supreme Court concluded that the accused persons were the aggressors.[175] Where the father of the accused was pulling out a gate of the deceased and on the deceased assaulting the accused the accused struck the deceased dead, there was no right of private defence.[176] In Jarnail Singh, the accused was not the aggressor where the accused went to the field after successfully getting a judgment for a property dispute through the courts, and asked the other party to vacate the premises.[177] There is no right of private defence just because a co-conspirator was granted right of private defence.[178]

The right of private defence must be pleaded by the accused. The court, on evidence that the accused acted in self defence is bound to take cognizance of the fact.[179] But, even if the accused does not plead the right of private defence, he may be acquitted if the evidence showed that he was acting in self defence.[180] However, a right of private defence will not be assumed where the accused has failed to plead the defence and there is no evidence that the accused probably acted in self defence then the defence will not be presumed by the court.[181] The accused can make out the plea by a preponderance of the probabilities and the right of private defence is plausible.[182] The benefit should be extended to the accused where by preponderance of probabilities the defence is plausible.[183] Failure by the prosecution to prove that the injuries on the accused were not from self defence of the accused probable and the accused is entitled to the benefit of the private defence as the accused burden is not to prove beyond a reasonable doubt.[184]

Defence of another person is excused where there are reasonable grounds for believing the act was necessary in defence of another.[185] In Yeshwant Rao v. State of M.P., where a father hit an assailant in the head causing death who was molesting his daughter, the father had a right to a private defence since it was held that it did not matter whether there was consent to the affair as the daughter was a minor.[186] There is no right of private defence for trespassers who are attacked by the property owner.[187] If no party is shown to be in settled possession, then no right of private defence can arise.[188] The number and nature of the injuries, the Supreme Court suggested, may be evidence to consider whether the accused was acting in private defence.[189]

However, even when there is a right of private defence, the right can be exceeded.[190] In Parichhat, the father of the accused was attacked with a ‘’lathi’’ and suffered a simple injury, then the accused, to protect his father, administered a fatal blow with a ballam.[191] A somewhat contrary view has been taken by the Supreme Court in Deo Narain, a later case where the accused exercised his right of private defence with a spear against a ‘’lathi’’ blow to the head.[192] Thus, it appears to be more important the part of the body against which the attack is directed that then weapon used.[193]

Defence of property is excused where the Accused is in lawful possession of land and is defending the land against anyone who tries to eject him by force,[194] or steal from his land,[195] or to cause an act to injury his land.[196] There can be no defence of private property where the accused has no right, title, interest or possession of the land in issue.[197] Those in possession as lawful tenants of agricultural land are within their rights to hold themselves at the ready to repel an act and are also within their rights to protect themselves.[198] In Shib Lal, a bailiff went to a village to make an attachment with an invalid warrant that had lapsed in time, and the owner of the property registered and caused grievous harm to one party, the court held no right of private defence of property.[199]

Section 98 of the Indian Criminal Code says, "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 misconception on the part 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." S. 98 provides the following two illustrations:

"(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 the misconception."

There are acts with no right of private defence. Section 99 of the Indian Criminal Code says, "There is no right of private defence against an act which does not reasonable 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 reasonable 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. 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 to private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence. Explanation 1: - A person is not deprived of the 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 the person doing the act is such public servant. Explanation 2: - A person is not deprived of the 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."

The first sentence of the clause applies to public servants acting in good faith though the act may not be justified by law.[200] In Kesho Ram, an officer acting in good faith under the authority of the Commissioner of the municipality, attempted to seize the buffalo of the accused with a view to recover arrears of milk tax, the mere fact that no prior notice was issued to the accused as required by the Municipal Act would not make their act entirely outside the law and as such the accused had no private defence.[201] The clause applies to a case where an official has done wrongly, what he might have done rightly, but not to cases where the act could not have been done rightly at all by the official concerned.[202] If the act of a public servant is ultra vires the right of private defence may be exercised against him.[203] A police officer holding a search, without a written authority, is not acting 'under colour of his office'.[204] In Pukot Kotu, a police officer attempted without a search warrant to enter a house in search of property allegedly stolen and obstructed and resisted, the court held that even thought the officer was not justified in the search, the person obstructing and resisting could not set up the illegality of the officer's proceeding as a justification of his obstruction as it was not shown that the officer was acting with a lack of good faith.[205] Illegal attachment does not justify resistance.[206]

The second sentence of the clause applies to acts done under the direction of a public servant. The resistance under an illegally issued warrant, the accused is justified in resistance.[207]

The third sentence of the clause must be read with the first clause of s.105.[208] It place an important restriction on the exercise of the right of defence. The right of private defence being granted for defence only, it must not and cannot legally be exercised when there is time to have recourse to the protection of public authorities. The right of public defence does not take the place of the functions of those public servants who are especially charged with the protection of life and property and the apprehension of offenders, and where the assistance of the public authorities can be procured, the right cannot be lawfully exercised. But the law does not intend that a person must run away to have recourse to the protection of public authorities when he is attacked instead of defending himself.[209] A person in possession cannot be expected to leave his property at the mercy of armed trespassers where there is imminent danger to the property and the person in possession apprehends substantial damage thereto, he is entitled to raise his own arms in defence and retaliate to keep away the attack without applying for State aid.[210]

The fourth sentence of the clause is restricted to not inflicting more harm than necessary to inflict for the purpose of defence.[211] The amount of force depends on the circumstances and there is no protection if the harm is caused by excessive violence quite unnecessary to the case.[212] The harm must be justifiable.[213] When the injury was caused to the victim on the vital parts of the body even though he and the witnesses present at the spot were all unarmed, it was held that the question of acting in self defence did not arise.[214]

Where the right of private defence of the body extends to causing death. Section 100 of the Indian Criminal Code says, "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 hereinafter 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." A man is allowed, who is under reasonable apprehension that his life is in danger, to defend his body in risk of grievous hurt to inflict death upon his assailant either when the assault is attempted or directly threatened, but the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self defence.[215] Where the accused was attacked by three persons and sustained an injury on the vital part of his forehead, he had reasonable apprehension of some hurt to be caused to him and had the right of self-defence but had exceeded by causing more harm to his assailants than needed.[216] Mere verbal exchanges, however heated, do not constitute reasonable apprehension.[217] Where the overt act committed by the accused was not in apprehension of any danger to himself, no protection of private defence.[218] The extended right of private defence to the extent of causing the death of the assailant arises only if the offence which occasions the exercise of the right is of one of the kinds mentioned in this section.[219]

On a plain reading of clause five of this section (s. 100) there does not seem to be any reason for holding that the word 'abducting' used in the clause means anything more than what is defined as "abduction" in s. 362. The clause only requires that there should be an assault which is an offence against the human body and that assault should be with the intention of abducting, and whenever these elements are present the clause will be applicable.[220]

The burden of proving the right of private defence is not as onerous as that of the prosecution to prove its case. Preponderance of probabilities in favour of the defence is enough to discharge the burden.[221]

When the right of private defence extends to causing any harm other than death. Section 101 of the Indian Criminal Code says, "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 of any harm other than death." There is only a limited right of private defence to cause harm that is not death.[222] In Ghunnu v. State of U.P., the Court held that the right of private defence was held to have been exceeded where a member of the opposite side was killed after snatching his pistol.[223]

The right of private defence commences and continues as long as danger to the body lasts. Section 102 of the Indian Criminal Code says, "The right of private defence of the body commences as soon as a reasonable 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" The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. A mere idle threat is not enough. There must be reasonable grounds for apprehension. It is not necessary that the party exercising the right of private defence must have suffered some injury at the hands of his attackers.[224] Where the deceased was fleeing for his life, there was no justification to shoot him down and was cheer murder and nothing else.[225]

The right of private defence may arise when defending property that causes death. Section 103 of the Indian Criminal Code says, "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 the 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; -First-Robbery; Secondly-House-breaking by night; Thirdly-Mischief by fire committed on any building, tent or vessel, which building, tent of vessel is used as a human dwelling, or as a place for the custody of property; Fourthly[226][227][228]-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised; Fifthly-Mischief by fire or any explosive substance committed on any property used or intended to be used for the purpose of any Government or any local authority, statutory body or company owned or controlled by Government or railway or on any vehicle used or adapted to be used for the carriage of passengers for hire or reward."

When such right extends to causing any harm other than death. Section 104 of the Indian Criminal Code says, "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 the voluntary causing to the wrong -doer of any harm other than death." This section applies where an injury (but not death) is inflicted on the offender in the course of his committing the offences of theft, mischief, or criminal trespass by the person exercising the right of private defence. But this section does not apply to a case where death has been caused in exercise of the supposed right of private defence.[229]

Commencement and continuance of the right of private defence of property. Section 105 of the Indian Criminal Code says, "The Right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either 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 of 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 house-trespass which has been begun by such house-breaking continues." Under the first clause, the right of private defence of property commences when a reasonable apprehension of danger to property commences. Before such apprehension commences the owner of the property is not called upon to apply for protection to the public authorities. The right commences not when the actual danger to the property commences but when there is reasonable apprehension of danger.[230] Under the second clause, the right of private defence of property against theft continues till (1) the offender has effected his retreat with the property, or (2) the assistance of public authorities is obtained, or (3) the property has been recovered.[231] Under the fourth clause, in the case of criminal trespass and mischief the right of private defence ceases to exist as soon as the commission of these offences ceases.[232] Under the fifth clause, the right of private defence against house-breaking continues only so long as the house-trespass continues; hence where a person followed a thief and killed him in the open, after the house-trespass had ceased, it was held that he could not plead the right of private defence.[233]

Right of private defence against deadly assault when there is risk of harm to innocent person. Section 106 of the Indian Criminal Code says, "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." This section should be read in the light of s. 100. Injury to innocent persons in the exercise of the right of defence is excusable under it.


Minor Offender

In representing juvenile offenders, the legal aid lawyer emphasizes that the accused should not bear criminal responsibility because of his or her age. Section 2(k) specifies eighteen as the higher limit for bearing criminal responsibility.

3. Other Excuses of Defence:

Maltreated Women Syndrome:

Although some courts do not recognize "Maltreated Women Syndrome" as a criminal defence, it can be considered secondary evidence for other defences such as self-defence, defence from being coerced, etc. Because "Maltreated Women Syndrome" affects a person's behavior, an expert needs to be retained to testify and explain her acts in this context. Some courts allow using expert testimony about "Maltreated Women Syndrome" to prove the accused did not have the requisite intent for committing the alleged crime.

Being under Coercion or Duress

If the accused was forced or coerced to participate in a crime, the legal aid lawyer can argue the defence of being forced or coerced. When many accuseds are involved in a case and any one of them may have been coerced by the other accuseds, the legal aid lawyer often employs this kind of defence.

Criminal Act of Necessity

When the accused committed some crimes to avoid more serious damage, the defence of necessity can be adopted. Similar to the stipulations concerning justifiable defence, if the accused's act exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.

Misunderstanding of Law/Facts:

In this type of defence, the criminal legal aid lawyer argues that the accused had no knowledge that his act constituted a crime at all. In the defence of misunderstanding the law, the criminal legal aid lawyer must prove that first, the accused can be found guilty of the alleged crime only if he deliberately broke the law, and second, that the accused did not know the law at the time of the offense. In the defence of misunderstanding facts, the criminal legal aid lawyer must prove that first, the accused misunderstood the true circumstances at the time of the offense; second, if he understood them, he would not have committed the crime; third, there were understandable reasons for this misunderstanding.

Being Instigated or Misled by Government

When the government has instigated or misled the accused to commit a crime, the criminal legal aid lawyer can consider using two types of defence. In the "instigated by the government" defence, the legal aid lawyer must prove that government officials instigated the accused to commit the crime, and that the accused would not have otherwise committed the crime. In the "misled by the government" defence, the criminal legal aid lawyer must prove that first, government officials told the accused that the alleged crime was legal; second, the accused committed the crime only because he believed this; and third, there were understandable reasons for the accused's credulousness. The legal aid lawyer then argues that the accused should therefore not be held criminally responsible. In this type of defence, the legal aid lawyer focuses on the government officials' acts rather than on the accused's thoughts and on whether the accused had the motive to commit the crime. Even if the case concerns a crime usually considered under the "strict responsibility principle" (i.e. even if the crime is one of "strict responsibility" under the law), this type of defence can still be employed.

Criminal Act with Sincere Intent

"Sincerity" refers to very sincere ideas or beliefs, or is used to describe somebody lacking in evil or malicious intent. The defence of "crimes with sincere intent" usually applies to crimes of tax or financial fraud for which the accused's intent needs to be verified. Deliberate fraud or forgery cannot be considered "sincere." If, however, the criminal legal aid lawyer can prove the accused possessed all sincerity in his act, it can be inferred that the accused did not have fraudulent intent as alleged by the prosecutor.

Did the accused complete the crime?

Although being only at a certain stage of the crime (e.g. an intermediate stage) cannot count as evidence that proves the accused's innocence, it can lessen the accused's punishment in the court's final sentencing and even result in the accused being exempted from punishment. Thus, the legal aid lawyer must carefully research the accused's acts to determine whether the following circumstances exist so as to request a mitigated punishment or exemption from punishment : crime preparation V, an attempt to commit a crime, as the discontinuation of a crime (or lack thereof).

Is there anyone who should take more responsibility than the client for the alleged offense?

Does the accused have any other jointly accused persons? If so, the legal aid lawyer must investigate the concrete role of every co-accused to determine the actual role of the client. The lawyer needs to pay particular attention to joint crimes .

Was your client the ringleader in the course of the crime? Did your client organize, plot, or direct/lead the criminal group or other jointly accused persons? Was your client playing an important role in the course of joint crimes? Did your client instigate others to commit a crime?

Did your client play a secondary role in the course of the preparation and commission of the crime?

Is your client eligible for a lighter or mitigated punishment?

The court can be allowed to give the accused a mitigated punishment or exempt him from punishment under some circumstances according to law.

Can the lawyer still seek a mitigated punishment for the client if there are no statutory specifications about mitigation?

Yes, The following are some points of evidence that may help in obtaining a mitigated punishment:

1. The accused does not have long-term criminal record.

2. The accused has expressed sincere remorse and self-examination for having participated in the crime.

3. The accused has compensated the victim for all his or her losses.

4. The accused is still a minor and also wants to continue schooling; his school also allows him to continue enrollment.

5. The accused needs to take care of elderly and young household members.

6. The accused is mentally retarded and cannot sensibly make judgments, and is thus easily taken advantage of by others.

7. The accused had a difficult childhood (for example, he was ill-treated at home) that has affected his long-term personal development.

8. The accused has had to overcome great hardships that have tested his limits and abilities as a person (for instance, domestic violence, drug- addiction).

9. The accused has good work experience or educational background, or has made significant contributions to society.

10. Any other mitigating circumstances about the accused. The legal aid lawyer should think of any means to describe the accused as pitiable and condonable.

In order to discover these points of evidence for a mitigated punishment, the legal aid lawyer must win the trust of the client, his family members, and other important persons in his life (such as his teacher or boss). The evidence for a mitigated punishment must form an important part of the theory of the case. When presenting the evidence for mitigated punishment in court, the legal aid lawyer does not need to conceal his own feelings. The legal aid lawyer's objective is for the court to see his client's more humane side and thereby to give him the opportunity for reform.

Conclusion

In the course of developing the theory of the case, the lawyer needs to carefully consider the prosecutor's burden of proof. Furthermore, after the conclusion of the investigation, the legal aid lawyer can judge whether the client's act constitutes a crime, whether there is any possibility that the client has a reasonable and legitimate defense, whether the client has actually completed the crime, whether the client is only an accessory, and whether there is evidence supporting mitigated punishment. Only after the analysis of the above questions can the legal aid lawyer present a complete, persuasive theory of the case in court.


See India Criminal Defense Manual

References

  1. Section 473 of The Code of Criminal Procedure
  2. Section 76 of the Indian Penal Code
  3. Section 77 of the Indian Penal Code
  4. Section 78 of the Indian Penal Code
  5. Section 79 of the Indian Penal Code
  6. Section 80 of the Indian Penal Code
  7. Section 81 of the Indian Penal Code
  8. Section 82 of the Indian Penal Code
  9. Section 83 of the Indian Penal Code
  10. Section 84 of the Indian Penal Code
  11. Section 85 of the Indian Penal Code
  12. Section 86 of the Indian Penal Code
  13. Section 87 of the Indian Penal Code
  14. Section 88 of the Indian Penal Code
  15. Section 89 of the Indian Penal Code
  16. Section 92 of the Indian Penal Code
  17. Section 93 of the Indian Penal Code
  18. Section 94 of the Indian Penal Code
  19. Section 95 of the Indian Penal Code
  20. Sections 96-106 of the Indian Penal Code
  21. Section 77 of the Indian Penal Code
  22. Section 78 of the Indian Penal Code
  23. Section 76 of the Indian Penal Code
  24. Section 79 of the Indian Penal Code
  25. Section 78 of the Indian Penal Code
  26. Section 81-86 of the Indian Penal Code
  27. Section 92-94 of the Indian Penal Code
  28. Section 87 of the Indian Penal Code
  29. Section 90 of the Indian Penal Code
  30. Section 95 of the Indian Penal Code
  31. Section 96-106 of the Indian Penal Code
  32. Section 77 of the Indian Penal Code
  33. Section 78 of the Indian Penal Code
  34. Section 105 of The Indian Evidence Act
  35. Bai Ramilaben v. State of Gujarat, 1991 r LJ 2219 (Guj).
  36. Section 76 of the Indian Penal Code
  37. (1923) 26 Bom LR 138.
  38. (1868) 10 WR (Cr) 20.
  39. Section 79 of the Indian Penal Code
  40. (1839) Cro Car 538.
  41. 1978 Cr LF 1305 (Ori).
  42. 1977 Cr LJ 1725 (Ori).
  43. CROSS & JONES : INTRODUCTION TO CRIMINAL LAW, 9th Edn., pp. 58-59.
  44. (1888) 12 Bom 377. See Chirangi, (1952) Nag 348.
  45. Tustipada Mandal, (1950) Cut 75.
  46. Fischer, (1891) 14 Mad 342, 354, FB.
  47. State of Maharashtra v. M.H. George, 1965 (1) Cr LJ 641 : AIR 1965 SC 722.
  48. Mayer Hans George, (1964) 67 Bom LR, 583: AIR 1965 SC 722 : (1965) 1 Cr LJ 641.
  49. (1950) Cut. 75; quoting R. v. Prince, (1683) 2 Ch. C. 154.
  50. Id.
  51. S. 80 Indian Penal Code
  52. Stephen's Digest of Criminal Law, 9th Edn., Art. 316.
  53. Fenwick v. Schmalz, (1868) LR 3 CP 313, 316.
  54. Patreswar Basumatary v. State of Assam, 1989 Cr LJ 196 (Gau).
  55. R. v. Clarke, (1972) 1 All ER 219; Bratty v. A.G., (1961) 3 All ER 523; State of Kerala v. Bahuleyan, 1986 Cr LJ 1579 : AIR (1986) 4 SCC 124, explains the burden of the prosecution under s. 80 of the Indian Penal Code.
  56. Sita Ram v. State of Rajasthan, 1998 Cr LJ 287 (Raj)
  57. Raja Ram, 1977 Cr LJ NOC 85 (All); Khora Ghasi, 1978 Cr LJ 1305 (Orissa) under s. 79 of the Indian Penal Code.
  58. Girish Saikia v. State of Assam, 1993 Cr LJ 3808 (Gau).
  59. Rangaswamy, (1952) Nag 93).
  60. Bhupendra Singh A Chudasama v. State of Gujarat, AIR 1997 SC 3790 : 1998 Cr LJ 57.
  61. Stephen's Digest of Criminal Law, 9th Edn., Art 11.
  62. Southwark London Borough Council v. Williams, (1971) Ch 734, (1971) 2 All ER 175; Wood v. Richards, (1971) RTR 201.
  63. Ramchandra Gujar, (1937) 39 Bom LR 1184, (1938) Bom 114.
  64. Gurcharan Singh v. State of Punjab, AIR 1956 SC 460: 1956 Cr LJ 827; Kusta Balsu Kandnekar v. State of Goa, 1987 Cr LJ 89 Bom.
  65. Mayer Hans George, (1964) 67 Bom LR 583, AIR 1965 SC 722: (1965) 1 Cr LJ 641; Nathulal, AIR 1966 SC 43: 1966 Cr LJ 71.
  66. Veeda Menezes v. Yusuf Khan, 1966 Cr LJ 1489: AIR 1966 SC 1773: 68 Bom LR 629.
  67. (1892) 17 Bom 626.
  68. (1868) 5 BHC (Cr C) 59.
  69. Lukhini Agradanini, (1874) 22 WR (Cr) 27.
  70. Hiralal, 1977 Cr LJ 1921: AIR 1977 SC 2236.
  71. Makhulshah, (1886) 1 Weir 470; Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217.
  72. Id. , Hiralal.
  73. Lukhini Agradanini, (1874) 22 WR (Cr) 27, 28.
  74. Ulla Mahapatra, (1950) Cut 293; Mussamut Aimona, (1864) 1 WR (Cr) 43.
  75. Ulla Mahaparta, (1950) Cut 293
  76. (1991) COD 442 (DC).
  77. Krishna, (1883) 6 Mad 373.
  78. Geron Ali, (1940) 2 Cal 329.
  79. Dahyabhai, 1964 (2) Cr LJ 472 (SC); Lonimohon Das, 1974 Cr LJ 1186 (Gau); Kesheorao, 1979 Cr LJ 403 (Bom); Lala Sk. , 1983 Cr LJ 1675 (Cal); Balu Ganput, 1983 Cr LJ 1769 (Bom).
  80. Paramal Raman v. State of Ker, 1992 Cr LJ 176 Ker; Bai Bamilaben v. State of Gujarat, 1991 Cr LJ 2219 Guj; Shama Tudu v. State, 1987 Cr LJ 618 Orissa. The Orissa High court cited the following cases that accepted an insanity plea: Mitu Khadia v. State of Orissa, 1983 Cr LJ 385: 1983 Cut LR (Cr) 108; Khageshwar Pujari v. State of Orissa, 1984 Cr LJ 1108: 1984 (1) Orissa LR 142; Sundar Bairagi v. State, 1984 Cr LJ 124; Bata v. State, 1985 (2) Orissa LR 398. The insanity plea was not accepted in the following cases: Nakul Chandra v. State of Orissa, 1982 Cr LJ 2158: (1982) 54 Cut LJ 195; Kusa Majhi v. State, (1985) 59 Cut LT 203: 1985 (1) Crimes 520: 1985 Cr LJ 1460: AIR 1985 SC 1409. Prosecution proved its case in the following case: State of M.P. v. Digvijay Singh, AIR 1981 SC 1740: 1981 Cr LJ 1278; Sheralli Walli Md v. State of Maharashtra, AIR 1972 SC 2443: 1972 Cr LJ 1523; Qyami Ayatu v. State of M.P. , AIR 1974 SC 216: 1974 Cr LJ 305.
  81. Sanna Eranna, 1983 Cr LJ 619 (Kant); M. Parvaiah, 1985 Cr LJ 1824 (AP); Kuttappan, 1986 Cr LJ 271 (Ker); Bahadur, (1927) 9 Lah 371.
  82. Bhikari, AIR 1966 SC 1.
  83. Subbigadu v. Emperor, AIR 1925 Mad 1238: 1926 (27) Cr LJ 46; Ujagar Singh v. State, AIR 1954 Pepus 4: 1953 Cr LJ 1859; Amrit Bhushan Gupta v. Union of India, AIR 1977 SC 608: 1977 Cr LJ 376; Ram Bharose v. State of M.P. , 1974 Jab LJ 348; Peeru Singh v. State of M.P. , 1987 Cr LJ 1781 MP.
  84. Archbold, 35th Edn., pp. 31-32; Russell, 12th Edn., Vol. I, p. 105; 1 Hale P.C. 34.
  85. 1 Hale P.C. 30.
  86. Russell, 12 Edn. Vol. I, p. 103; 1 Hale PC 31.
  87. M'Naughton's case, (1843) 4 St Tr (NS) 847, 10 Cl & F 200; Tola Ram, (1927) 8 Lah 684; Jaganath Das v. State, 1991 Cr LJ (NOC) 32 Cal.
  88. Harka, (1906) 26 AWN 193.
  89. Nota Ram, (1866) PR No. 56 of 1866.
  90. Govindaswami Padayachi, (1952) Mad 479; Ahmadullah, (1961) 3 SCR 583: (1961) 2 Cr LJ 43: AIR 1961 SC 998; Dahyabhai, AIR 1964 SC 1563: 1964 (2) Cr LJ 472; Narain v. State, 1991 Cr LJ 1610, insanity at the time of the act was proved; A.G. Bhagwat v. U.T. Chandigarh, 1989 Cr LJ 214 P&H insanity at the time of the act was not proved; Ajaya Mahakud v. State, 1993 Cr LJ 1201 (Ori); S. Sunil Sandeep v. State of Karnataka, 1993 Cr LJ 2554 (Kant); State of Punjab v. Mohinder Singh, (1983) 2 SCC 274: 1983 SCC (Cri) 402: 1983 Cr LR (SC) 187; Krishan Dutt v. State of H.P., 1992 Cr LJ 1065 HP.
  91. S.W.Mohammed, 1072 Cr LJ 1523: AIR 1972 SC 2443; Oyami Ayatu, 1974 Cr LJ 305: AIR 1974 SC 216; Gundadhar Mondal, 1979 Cr LJ NOC 178 (Cal); Kesheorao, 1979 Cr LJ 403 (Bom); Munilal Gupta v. State, 1988 Cr LJ 627 (Del).
  92. Meh Ram v. State, 1994 Cr LJ 1897 (Raj).
  93. Kader Hasyer Shah, (1896) 23 Cal 604, 607; Kalicharan, (1974) Nag 226.
  94. Gedka Goala, (1937) 16 Pat 333; Raghu Pradhan v. State of Orissa, 1993 Cr LJ 1159 (Ori); Ashiruddin Ahmed, 50 Cr LJ 225 (Cal).
  95. Gourishankar, (1965) 68 Bom LR 236; Ashok Dattatraya v. State of Maharashtra, 1993 Cr LJ 3450 (Bom); Amruta v. State of Maharashtra, 1996 Cr LJ 1416 (Bom).
  96. Nathu Bapu Mhaskar v. State of Maharashtra, 1996 Cr LJ 2121 (Bom); Tola Ram v. State of Rajasthan, 1996 Cr LJ 8 (Raj).
  97. Paras Ram v. State of Punjab, (1981) 2 SCC 508: 1981 SCC (Cr) 515; Gulab Manik Surwase v. State of Maharashtra, 2001 Cr LJ 4302 (Bom); Laxmandas Mangaldas Manikpuri v. State, 1997 Cr LJ 950 (Bom).
  98. M'Naughton, (1843) 4 St Tr (NS) 847; Ghatu Pramanik, (1901) 28 Cal 613.
  99. Davis, (1881) 14 Cox 563; Bheleka Aham, (1902) 29 Cal 493.
  100. R. v. Tandy, (1989) 1 All ER 267 CA.
  101. Id. , M'Naughton; Mani Ram, (1926) 8 Lah 114.
  102. Kalicharan, (1947) Nag 226.
  103. Ganesh Shrawan, (1969) 71 Bom LR 643.
  104. S.W. Mohammed, 1972 Cr LJ 1523: AIR 1972 SC 2443. See, Mitu Khadia, 1983 Cr LJ 1385 (Ori).
  105. 1973 Cr LJ 110 (Mad). See, Prakash, 1985 Cr LJ 196 (Bom); Krishan Dutt v. State of H.P. , 1992 Cr LJ 1065 (HP).
  106. Velusamy, 1985 Cr LJ 981 (Mad).
  107. Baswant Rao, (1948) Nag 711.
  108. Sukru Sa, 1973 Cr LJ 1323 (Ori); Kesheorao, 1979 Cr LJ 403 (Bom); Lala Sk, 1983 Cr LJ 1675 (Cal); Rajan, 1984 Cr LJ 874 (Ker); Kusa Majhi, 1985 Cr LJ 1460 (Ori); Sudhir Ch Biswas v. State, 1987 Cr LJ 863 Cal; Siddheswari Bora, 1981 Cr LJ 1005 (Gau); State of Assam v. Inush Ali, 1982 Cr LJ 1044 (Gau).
  109. Gedka Goala, (1937) 16 Pat 333; Niman Sha v. M.P. , 1996 Cr LJ 3395 (MP), the plea of insanity was accepted where an accused killed two women by cutting their heads with an axe without reason and the evidence showed earlier similar attacks of disorder; State of Jharkhand v. Madras Nayak, 2003 Cr LJ NOC 197: 2003 AIR Jhar HCR 653, the insanity pleas was accepted where the accused killed seven people, including his wife and two children, and some cattle with an axe without provocation and the evidence showed he was not of sound mind.
  110. Jagannath Das v. State, 1991 Cr LJ (NOC) 32 (Cal); Shrikant Anandrao Bhosale v. State of Maharashtra, AIR 2002 SC 3399; but there are circumstances where the plea of paranoid is not enough as a defence, S.K. Nair v. State of Punjab, AIR 1997 SC 1537: 1997 Cr LJ 772: (1997) 1 SCC 141, the plea of paranoid was rejected where the accused understood the effects of his acts.(
  111. R. v. Kemp, (1956) 3 All ER 249: (1956) 3 WLR 724; R. v. Quick, (1973) 3 All ER 347, the law makes no distinction between physical or mental conditions so long as the effect is on the condition of the mind; R. v. Hennessy, (1989) 2 All ER 9 CA; Regina v. Burgess, (1991) 2 WLR 1206 (CA).
  112. Shivraj Singh v. State of M.P. , 1975 Cr LJ 1458; State v. E. Lemon, AIR 1970 Goa 1; Balagopal Re, 1976 Cr LJ 1978; Dulal Nayak v. State, 1987 Cr LJ 1561 Cal; Omkarlal v. State of M.P. , 1987 Cr LJ 1289 MP.
  113. Sankaran v. State, 1994 Cr LJ 1173 (Ker); T.N. Lakshmiah v. State of Karnataka, (2002) 1 SCC 219; T.N. Lakshmiah v. State of Karnataka, AIR 2001 SC 3828; Khuraiam Somai Singh v. State, 1997 Cr LJ 567 (Guj), burden of proof principle statements; S.K. Nair v. State of Punjab, 1997 Cr LJ 772: AIR 1997 SC 1537; Genda Oraon v. State of Bihar, 2003 Cri LJ NOC 4 (Jhar): (2002) JLJR 584.
  114. Kuziyaramadiyil Madhavan v. State, 1994 Cr LJ 450 (Ker).
  115. Ratan Lal v. State of M.P. , AIR 1971 SC 778: 1971 Cr LJ 654; Tukappa Tamanna Lingardi v. State of Maharashtra, 1991 Cr LJ 2375 (Bom).
  116. Narayan Chandra Dey v. State, 1988 Cr LJ 387 (Cal).
  117. Mobeni Minji, 1982 Cr LJ NOC 39 (Gau).
  118. Bodhee Khan, (1866) 5 WR (Cr) 79; Boodh Dass, (1866) PR No. 41 of 1866.
  119. Director of Public Prosecutions v. Beard, (1920) AC 479; Ramsingh, (1938) Nag 305; Samman Singh, (1941) 24 Lah 39; D.P.P. v. Majewski, (1976) 2 All ER 142); Mathai Mathew, 1952 Cr LJ 1304 (TC); Basdev v. State of Pepsu, 1956 Cr LJ 919(2): AIR 1956 SC 488
  120. Id., Davis; Id., D.P.P. v. Board; Id ., Director of Public Prosecutions v. Beard.
  121. Dil Mohammad, (1941) 21 Pat 250; Basdev v. State of Pepsu, 1956 Cr LJ 919 (2); State of Maharashtra v. Ashok Yashwant, 1987 Cr LJ 1416 (Bom); Pal Singh, (1917) PR No. 28 of 1917; Judagi Malah, (1929) 8 Pat 911.
  122. Samman Singh, (1941) 24 Lah 39; Basdev v. State of Pepsu, (1956) SCR 363: AIR 1956 SC 488; Pidika Janu v. State of Orissa, 1989 Cr LJ (NOC) 104.
  123. R.P. Dhanda (Dr.) v. Bhurelal, 1987 Cr LJ 1316 MP.
  124. Veeda Menezes v. Yusuf Khan, 1966 Cr LJ 1489: AIR 1966 SC 1773: 68 Bom LR 629.
  125. Umadasi Dasi, (1924) 52 Cal 112, abetment is not included under murder and can be excused; Karu, (1937) Nag 524; R. v. Howe, (1987) 1 All ER 770 HL, duress not available to someone charged with murder; Bachchan Lal, 1957 Cr LJ 344.
  126. Maganlal and Motilal, (1889) 14 Bom 115
  127. Devji Govindji, (1895) 20 Bom 215, 222, 223; R. v. Sharp, (1987) 3 All ER 103 CA, this section will not apply to those who voluntarily join a criminal organization or gang.
  128. R v. Laskey, (1993) 2 WLR 556 (HL); R. v. Powell (Jason Wayne), (2002) EWCA Crim 661: (2002) 2 Cr App R (S) 117, [CA (Crim Div.)]
  129. Lock, (1872) LR 2 CCR 10, 11.
  130. Day, (1841) 9 C & P 722, 724.
  131. Lock, (1872) LR 2 CCR 10, 14.
  132. Prakash Chandra v. State of Rajasthan, 1991 Cr LJ 2566 (Raj); State of Orissa v. Nirupma Panda, 1989 Cr LJ 621 Orissa.
  133. Baboolun Hijrah, (1866) 5 WR (Cr) 7.
  134. Parshottam, (1962) 64 Bom LR 788; Poonai Fattemah, (1869) 12 WR (Cr) 7.
  135. Veeda Menezes v. Yusuf Khan, 1966 Cr LJ 1489: AIR 1966 SC 1773: 68 Bom LR 629
  136. Narayanan v. State of Kerala, 1987 Cr LJ 741 Ker; Attappa Re, AIR 1951 Mad 759: 1951 (2) Cr LJ 716.
  137. Anoop Krishan Sharma v. State of Maharashtra, 1992 Cr LJ 1861 (Bom).
  138. Kasyabin Ravji, (1868) 5 BHC (Cr C) 35.
  139. Ethirajan, 1955 Cr LJ 816.
  140. South Indian Railway Co. v. Ramakrishna, (1889) 13 Mad 34.
  141. Sheo Gholam Lalla, (1875) 24 WR (Cr) 67.
  142. Ramasami, (1888) 12 Mad 148.
  143. Shoshi Bhusan Mukerjee v. Walmsley, (1897) 1 CWN cxxxiv.
  144. Munney Khan v. State, AIR 1971 SC 1491 : (1970) 2 SCC 480.
  145. Munney Khan v. State, AIR 1971 SC 1491 : (1970) 2 SCC 480, deceased insults Accused person’s wife so Accused beats Deceased to death; self defence was not allowed; Serei Behera v. Bipin Behari Roy, 1959 Cr LJ 1069; Dattu Genu, 1974 Cr LJ 446 : AIR 1974 SC 387; Narasimha Raju v. State, 1971 Cr LJ 1066 : (1970) 3 SCC 481 : AIR 1971 SC 1232; Mohammad Hameed v. State, AIR 1980 SC 108 : 1980 Cr LJ 192 : (1979) 4 SCC 708; Jagdish Chandra v. State of Rajasthan, 1987 Cr LJ 649 Raj., a hostile and quick tempered Deceased fires a gun at Accused and Accused returned a deadly shot; the Court allowed self defence; Kuduvakuzinyil Sudhakaran v. State, (1995) 1 Cr LJ 721 (Ker), the deceased was neither unarmed or aggressor self defence not allowed; Hakim Singh v. State of M.P., (1994) 2 Cr LJ 2463 (MP), the accused fires a gun at an unarmed deceased and when the deceased picks up a gun and wounds the accused, the accused returns deadly fire; the Court did not allow self defence. See also, Sellanuthu v. State of T.N., (1995) 2 Cr LJ 2143 (Mad); Hukam Chand v. State of Haryana, AIR 2002 SC 3671; Jham Singh v. State of M.P., 2003 Cr LJ 2847.
  146. State of Orissa v. Bhagban Barik, (1987) 2 SCC 498 : AIR 1987 SC 1265 : 1987 Cr LJ 1115. The Court relied on Russel On Crimes, 76 (Vol. 1).
  147. Biran Singh, 1975 Cr LJ 44 : AIR 1975 SC 87, the accused ran to a house to fetch a sword and returning to commit the assault on the accused was relevant; Krishanlal v. State, 1988 Cr LJ 990 (J&K), the accused was not able to use his land by a party of men, the accused ran to his house to fetch a gun, returned some fifteen minutes later to commit the assault, the accused was within his rights, but when he went further and injured a man who was just standing by he was not able to claim self defence.
  148. Puram Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674; Shivappa Laxman Savadi v. State, 1992 Cr LJ 2845 (Kant), where confronted with three persons, the superiority in numbers was enough to reason that the accused was in imminent danger and the was allowed the defence of self defence; Hari Singh v. State of Rajasthan, AIR 1997 SC 1505 : 1997 Cr LJ 733; State of Haryana v. Mewa Singh, AIR 1997 SC 1407: 1997 Cr LJ 1906.
  149. Rizan v. State of Chhatisgarh, AIR 2003 SC 976 : 2003 Cri LJ 1226.
  150. Ram Dhani v. State, 1997 Cr LJ 2286 (All).
  151. 1963 (1) Cr LJ 495 : AIR 1963 SC 612; Mohd Khan, 1972 Cr LJ 661 : (1971) 3 SCC 683; Puran Singh, 1975 Cr LJ 1479 : AIR 975 SC 1674; Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980 SC 660, this is the old view that the accused must first try to avoid the attack by retreating or other such measures and this case was overturned by Id., Jaidev, 1963 (1) Cr LJ 495 : AIR 1963 SC 612.
  152. Onkarnath Singh v. State of U.P., 1974 Cr LJ 1015 : AIR 1974 SC 1550; Vishvas, 1978 Cr LJ 484 : AIR 1978 SC 414; Sikhar Behera, 1982 Cr LJ 1167 (Orissa); Munir Ahmad v. State of Rajasthan, AIR 1989 SC 705 : 1989 Cr LJ 845 : (1989) 26 ACC 115 : 1989 Supp SCC 377; Hari Krishna Singh v. State of Bihar, AIR 1988 SC 863 : (1988) 2 SCC 95 : 1988 Cr LJ 925; Garanand v. State, 1954 Cr LJ 1746, AIR 1954 SC 695; Abdul Hamid v. State of U.P., 1991 Cr LJ 431, two groups got into a fight where three persons died and it was not determinable who, if any, were exceeding limits; all were acquitted; State of Assam v. Upendra Das, 1991 Cr LJ 2930 Gan, relying on Lakshmisingh v. State of Bihar, AIR 1976 SC 2263 : 1976 Cr LJ 1736. For cases on free fight acquittals see Ram Nath v. State, 1991 Cr LJ 1825 All; Sonpal v. State of U.P., 1991 Cr LJ 1597 All, prosecution failed to explain the spark of the event and how the accused got his injuries; Nityanand Pasayat v. State, 1989 Cr LJ 1547 (Ori), an altercation between two groups; Chandrasekharan v. State of Kerala, 1987 Cr LJ 1715 (Ker), conviction was set aside when the prosecution in a murder trial tried to suppress information about private defence.
  153. Amir Ali v. State Assam, 1989 Cr LJ 1512
  154. AIR 1994 SC 1593 : 1994 Cr LJ 2188.
  155. Amrik Singh v. State of Punjab, 1993 Cr LJ 2857: 1993 AIR SCW 2482 : 1994 Supp (1) SCC 320; Rohtash v. State of Haryana, 1993 Cr LJ 3303 (P&H), where there is a "free fight" involving two groups that was started by the deceased, it is immaterial who started the fight as the private defence is not available to any of them).
  156. 1993 Cr LJ 3664: 1993 AIR SCW 3162 : 1994 Supp (1) SCC 493; Vijayan v. State, AIR 1999 SC 1311 : 1999 Cr LJ 2037; Ram Kumar v. State of Haryana, AIR 1998 SC 1437 : 1998 Cr LJ 2049, in a boundary dispute that was resolved through competent authorities, the accused entered complainant's side and opened fire, but it was unclear who fired at whom; the Court acquitted); Pammi v. Govt. of M.P., AIR 1998 SC 1185 : 1998 Cr LJ 1617; Ram Sunder Yadav v. State of Bihar, 1999 Cr LJ 3671 : AIR 1999 SC 2873; Periasami v. State of T.N., 1997 Cr LJ 219 : (1996) 6 SCC 457, the accused was given the benefit of the doubt when there was a previous enmity, but not distinguishable who instigated.
  157. Lacchiram v. State of M.P., 1990 Cr LJ 2229 MP; Govdhan v. State, 1987 Cr LJ 541 Raj.
  158. Id., Onkarnath.
  159. Man Bharan Singh v. State of M.P., 1996 Cr LJ 2707 (MP).
  160. Munna v. State of U.P., AIR 1992 SC 278 : 1993 Cr LJ 45 : 1993 Supp (2) SCC 757; State of Kerala v. Mavila Thamban Nambiar, 1993 Cr LJ 1817 (Ker), no private defence where the accused fell off during the struggle and injured himself.
  161. Ram Kumar v. State of Haryana, 1994 Cr LJ 1450 P&H; Velummel v. State, 1994 Cr LJ 1738 (Ker), no private defence when entering the house of another for crime.
  162. AIR 1992 SC 1247 : 1992 Cr LJ 2514 : 1993 Supp (1) SCC 312.
  163. 1992 Cr LJ 2907 (Ori).
  164. AIR 1992 SC 1989 : 1992 Cr LJ 3596; Hardeep Singh v. State, 1996 Cr LJ 3091 (Raj), no difference to the acceptance of their plea of private defence where there is no explanation of injuries on the accused.
  165. 1995 Cr LJ 3797 (MP); State of U.P. v. Mukunde, (1994) 2 SCC 191 : 1994 Cr LJ 3797 (MP), the Court said that merely on the grounds that the prosecution's witness has not explained the injuries on the accused, the witness should not be rejected outright if the Court finds it probable that accused might have acted out of a private defence.
  166. (2001) 6 SCC 145 : AIR 2001 SC 2326 : 2001 AIR SCW 2077; Chandu v. State of Maharashtra, (2001) 4 scale 590 : (2001) 5 Supreme 672; Dev Raj v. State of H.P., AIR 1994 SC 523 : 1993 AIR SCW 3966 : (1994) Supp 2 SCC 552; Tara Chand v. State of Haryana, AIR 1971 SC 1891 : 1971 Cr LJ 1411.
  167. Kashi Ram v. State of M.P., AIR 2001 SC 2902; State of Rajasthan v. Pura, 2000 Cr LJ 2615 (Raj); Pala Singh v. State, 1997 Cr LJ 2797 (Raj), right of private defence where there is no explanation of the injuries on the accused; Dharminder v. State of H.P., AIR 2002 SC 3097. See, Poosaram, 1984 Cr LJ 1848 (Raj); State of Gujarat v. Bai Fatima, 1975 Cr LJ 1079: AIR SC 1478.m; Rizan v. State of Chhatisgarh, AIR 2003 SC 976, non-explanation of injuries on the accused by itself cannot give rise to right of private defence.
  168. Rajesh Kumar v. Dharmavir, AIR 1997 SC 3769: 1997 Cr LJ 2242.
  169. State v. Tanaji Dagadu Chawan, 1998 Cr LJ 4515 (Bom).
  170. Nareshi Singh, (1923) 2 Pat 595.
  171. Surjit Singh v. State of Punjab, 1996(2) SCC 336 at 342: AIR 1996 SC 1388.
  172. State of U.P. v. Ram Swarup, 1974 Cr LJ 1035: AIR 1974 SC 1570; Kishan, 1974 Cr LJ 324: AIR 1974 SC 244; Gurbachan Singh, 1974 Cr LJ 436: AIR 1974 SC 496; Sone Lal, 1981 Cr LJ 1027: AIR 1981 SC 1379: (1981) 2 SCC 531; State of Gujarat v. Koli Manu Rajvi, 1985 Cr LJ 1686 (Gujarat); Bhaskaran Nair v. State of Kerala, 1991 Cr LJ 23; Jadu Behera v. State, 1990 Cr LJ 817 Orissa, private defence allowed where the deceased standing in the house of the accused with an iron in hand threatened to kill the accused, the accused came out and killed the deceased; Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263: (1976) Cr LJ 1736; Jagdish v. State of Rajasthan, AIR 1979 SC 1010: (1979) Cr LJ 888; State of Rajasthan v. Modho Singh, AIR 1991 SC 1065: 1991 Cr LJ 1343: AIR 1991 SC 1065, the accused was given the benefit of the doubt when the prosecution did not speak about the injuries on the accused; Kashmiri Lal v. State of Punjab, AIR 1997 SC 393: 1996 Cr LJ 4452, private defence not allowed where accused was the aggressor. See, State of M.P. v. Sardar, 2001 Cr LJ 3984 (SC); Ayodhiya Ram v. State of Bihar, 1999 Cr LJ 5005: (1999) 9 SCC 139 (SC); Dhananjai v. State of U.P., AIR 1996 SC 551: 1994 Cr LJ 614: 1994 SCC (Cri) 184, where several guys with ‘’lathis’’ and firearms went to the house of the deceased and one of them fired five shots hitting the deceased and another, there was no right of private defence.
  173. Ramaotar v. State of M.P., AIR 1993 SC 302: 1993 Cr LJ 57;Pattani v. State, 1993 Cr LJ 1709 (Mad); State of M.P. v. Mohandas, 1992 Cr LJ 101 (MP).
  174. Hari Meghji, 1983 Cr LJ 826: AIR 1983 SC 488; State of U.P. v. Pussu, (1983) 3 SCC 502: AIR 1983 SC 867: 1983 Cr LJ 1356; T. Mahto, 1972 Cr LJ 835 (Pat); State of Orissa v. Golleri Damo, 1973 Cr LJ 117 (Orissa); Mathew v. State of Kerala, 1993 Cr LJ 213 (Ker), the accused as aggressor was not entitled to a private defence when a shop keeper came out and started beating the accused and the accused dealt deadly blows to the shop keeper.
  175. Nidhan Singh v. State of Punjab, 1980 Cr LJ 1421: 1980 SCC (Cr) 902: AIR 1981 SC 376; Darshan Lal v. State, 1990 Cr LJ 2751 (Del), the accused only sustained superficial injuries.
  176. State of M.P. v. Mohandas, 1991 Cr LJ 221 (All).
  177. Jarnail Singh v. State of Punjab, AIR 1993 SC 72: 1992 Cr LJ 3863: 1993 Supp (1) SCC 588; Jaipal v. State of Haryana, AIR 2000 SC 1271: 2000 Cr LJ 1778.
  178. State of M.P. v. Sardar, AIR 2001 SC 1321; Chacko v. State of Kerala, AIR 2000 SC 3601: 2001 Cr LJ 146; Murali v. State of T.N., 2001 Cr LJ 470 (SC).
  179. Kishen Lal, (1924) 22 ALJR 501.
  180. Munshi Ram v. Delhi Administration, AIR 1968 SC 702: 1968 Cr LJ 806, the Supreme Court said, "It is well settled that even if an accused does not plead self defence, it is open to the Court to consider such a plea if the same arises from materials on record."; Rajanikant, (1970) 2 SCC 866: 1970 SCC (Cr) 575; Veerana Nadan, (1912) MWN 404; Upendra Nath Das, (1914) 19 CWN 653, FB; Afiruddi, (1919) 29 CLJ 571; Ambika Singh, (1961) 1 Cr LJ 15; Ghulam Rasul, (1921) 23 PLR 7, 22 Cr LJ 507.
  181. State of Gujarat v. Bai Fatima, 1975 Cr LJ 1079: AIR 1975 SC 1478; Raza Pasha, 1983 Cr LJ 977: AIR 1983 SC 575; Sekar v. State of T.N., 2003 Cri LJ 93: AIR 2002 SC 3667, no self defence can be based on speculation.
  182. Salim Zia, 1979 Cr LJ 323: AIR 1979 SC 319; Yogendra Morarji, 1980 Cr LJ 459: AIR 1980 SC 660; Mohd. Ramzani v. State of Delhi, 1980 Cr LJ 1010: 1980 SCC (Cri) 907: AIR 1980 SC 1341; Savita Kumari v. Union of India, 1993 AIR SCW 1174: 1993 Cr LJ 1590: (1993) 2 SCC 357.
  183. Jharmal v. State of Haryana, 1995 Cr LJ 3212: 1994(2) SCC 551; Rizam v. State of Chhatisgarh, AIR 2003 SC 976, burden of proof is on the accused.
  184. Debraj v. State of U.P., (1993) Supp 2 SCC 552; Muskandar Ali v. Assam, (1995) 2 Cr LJ 1900 Gau, it is enough that the accused show on a preponderance of probability that he acted in self defence. See, Dwarka Pd. v. State of U.P., (1993) AIR SCW 1122: (1993) Supp. 3 SCC 141.
  185. Rose, (1884) 15 Cox 540, a man was cutting the throat of his wife when their son shot and killed the father, the Court held the son had reasonable grounds and believed the defence was necessary to protect his mother. Kashiram v. State of M.P., (2002) 1 SCC 71; Bhagwan Swaroop v. State of M.P., AIR 1992 SC 675 : 1992 Cr LJ 777 : (1992) 2 SCC 406.
  186. AIR 1992 SC 1633 SC : 1992 Cr LJ 2779.
  187. Hukam Singh, (1961) 2 Cr LJ 711 : AIR 1961 SC 1541; Munshi Ram, AIR 1968 SC 702 : 1968 CR LJ 806; Puran Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674.
  188. State of Orissa v. Bhagabat, 1978 Cr LJ 1566 (Orissa).
  189. Patori Devi v. Amar Nath, (1988) 1 SCC 610 : AIR 1988 SC 560 : 1988 Cr LJ 836.
  190. Hanumantappa Krishanappa Mantur v. State of Karnataka, 1992 Cr LJ 405 : AIR 1992 SC 599; State of Orissa v. Bata, 1990 Cr LJ 1087 (Ori); Bayadas Bawri, 1982 Cr LJ 213 (Gau); Kamal Singh v. State of M.P., (1995) 2 Cr LJ 1834 MP; Krushna Chandra Bisoi v. State of Orissa, 1992 Cr LJ 1766 (Ori).
  191. 1972 Cr LJ 332 : AIR 1972 SC 535; Dilip Singh v. State of Rajasthan, (1994) 2 Cr LJ 2439 (Raj); Telantle v. State of A.P., (1994) 2 Cr LJ 2302 (AP); Thomas George v. State of Kerala, AIR 2000 SC 3497 : 2000 Cr LJ 3475; Sekar v. State of T.N., 2003 Cr LJ 53 (SC).
  192. 1973 Cr LJ 677 (SC) : (1973) 3 SCR 57 : AIR 1973 SC 473. See further Laxman Sahu v. State of Orissa, 1988 Cr LJ 188 : AIR 1988 SC 83 : 1986 Supp SCC 555 : 1987 SCC (Cri) 173).
  193. Rafiq, 1979 Cr LJ 706 : AIR 1979 SC 1179; Yogendra Morariji, 1980 Cr LJ 459 : AIR 1980 SC 660; see also V.C. Cheriyan, 1982 Cr LJ 2071 (Ker); Jagtar Singh v. State of Punjab, AIR 1993 SC 968 : 1993 Cr LJ 301 : (1993) Supp (2) SCC 760.
  194. Sachee, (1867) 7 WR (Cr) 76 (112). Mohinder Singh v. State of Punjab, (1995) 1 Cr LJ 244 (P&H) an attempt to take forcible possession of land resisted, resistance held justified, the court explained when the right of resistance can extend to causing death. Tanaji Govind Misal v. State of Maharashtra, AIR 1998 SC 174 : 1998 Cr LJ 340, evidence showed that the property belonged to the complainant party and not to the complainant party and not to attackers, the owners suffered 51 wounds whereas the attackers received 15 wounds, which were also insignificant. The court held that the conviction of the accused could not be altered from under s. 300 to s. 304. Pohap Singh v. State of Haryana, 1998 Cr LJ 1564 : AIR 1998 SC 1554.
  195. Mokee, (1869) 12 WR (Cr) 15.
  196. Birjoo Singh v. Khub Lall, (1873) 19 WR (Cr) 66.
  197. A.R. Yelve v. State of Maharashtra, 1996 Cr LJ 1718 : AIR 1996 SC 2945.
  198. Hira, (1922) 45 All 250.
  199. (1933) 55 All 617. Jaggar Singh v. State of Punjab, 1989 Cr LJ 1980 P&H, a protest against the accused persons who were leveling the ground on their side of the boundary thinking that they were going to demolish the wall, and the party of the accused attached them causing death, defence not allowed. Ram Manohar v. State of Punjab, 1989 Cr LJ 1227 MP burden of proof as to right not established; Gangadhar v. State of Karnataka, 1998 Cr LJ 3601 : AIR 1998 SC 2379; Sukhdev Singh v. State, 1997 Cr LJ 2404 (P & H); Rajendra Tiwari v. State, 1997 Cr LJ 3926 (MP).
  200. Dalip, (1896) 18 All 246, 252.
  201. 1974 Cr LJ 814.
  202. Bhairo, 1941 Kar 324; Pagla Baba, (1957) Cr LJ; Ouseph Varkey, (1964) 1 Cr LJ 592; Deoman Shamji, (1958) 61 Bom LR 30.
  203. Jogendra Nath Mukerjee, (1897) 24 Cal 320; Tulsiram, (1888) 13 Bom 168; Haq Dad, (1925) 6 Lah 392; Achhru Ram, (1925) 7 Lah 104.
  204. Ram Parves, (1944) 23 Pat 328.
  205. (1896) 19 Made 349.
  206. Poomalai Udayan, (1898) 21 Mad 296; Bhai Lal Chowdhry, (1902) 29 Cal 417.
  207. Jogendra Nath Mukerjee, (1897) 24 Cal 320.
  208. Narsang Pathabhai, (1890) 14 Bom 441.
  209. Alingal Kunhinayan, (1905) 28 Mad 454.
  210. State of Orissa v. Rabindranath, 1973 Cr LJ 1686 (FB-Ori).
  211. Gokool Bowree, (1866) 5 WR (Cr) 33; Durwan Geer, (1866) 5 WR (Cr) 73.
  212. Gokool Bowree, (1866) 5 WR (Cr) 33; John Scutty, (1824) 1 C & P 319; Ram Prasad Mahton, (1919) 4 PLJ 289, 20 Cr LJ 375.
  213. Kurrim Bux, (1865) 3 WR (Cr) 12; Moizudin, (1869) 11 WR (Cr) 41; Mokee, (1869) 12 WR (Cr) 15.
  214. Baitullah v. State of U.P., AIR 1997 SC 3946 : 1997 Cr LJ 4644; Rukma v. Jala, AIR 1997 SC 3207 : 1997 Cr LJ 4641; Mavila Thamban Nambiar v. State of Kerala, AIR 1998 SC 308.
  215. Dhiria Bhavji, (1963) 1 Cr LJ 431, 3 Guj LR 503; Shankar Rai v. State of Kerala, 1992 Cr LJ 2871 (Ker); Dharampal v. State of U.P., AIR 1994 SC 127 : 1994 Cr LJ 615.
  216. Scaria v. State of Kerala, AIR 1995 SC 2342 : 1995 Cr LJ 3990.
  217. Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32: 1991 SCC (Cr) 299.
  218. Aramana Joseph v. State of Kerala, 1996 Cr LJ 2140 (Ker); Vishnu Narayan Moger v. State of Karnataka, 1996 Cr LJ 1121 (Kant); Baj Singh v. State of Punjab, AIR 1995 SC 1953 : 1995 Cr LJ 3605.
  219. Ram Saiya, (1948) All 165. See also Kishore Shambudatta Mishra v. State of Maharashtra, AIR 1989 SC 1173 : 1989 Cr LJ 1149 : 1989 Supp (1) SCC 399. Also Raza Pasha v. State of Maharashtra, AIR 1984 SC 1793: (1984) 4 SCC 441: 1984 SCC (Cr) 605, the person shot at from rooftop and killed was outside the house at that time, held that there was no occasion for private defence. Wassan Singh v. State of Punjab, (1996) 1 SCC 458 : 1996 Cr LJ 878.
  220. Vishwanath, 1960 Cr LJ 154, (1960) 1 SCR 646 : AIR 1960 SC 67; Nankau, 1977 Cr LJ NOC 116 (All).
  221. Dharminder v. State of H.P., AIR 2002 SC 3097; Inacio Manual Miranda v. State of Goa, 1999 Cr LJ 422 (Bom).
  222. Mahinder Pal, 1979 Cr LJ 584 : AIR 1979 SC 577; See also Yogendra Morarij, 1980 Cr LJ 459 : AIR 1980 SC 660; State of J&K v. Hazara Singh, 1980 Cr LJ 1501: 1981 SCC (Cr) 537 : AIR 1981 SC 451.
  223. 1980 Cr LJ (NOC) 15 : AIR 1980 SC 864: 1980 ALL LJ 397: 1979 SCC (Cr) 438. See also Chuhar Singh v. State of Punjab, AIR 1991 SC 1052 : 1991 Supp (2) SCC 455 : 1991 SCC (Cri) 1066, where the circumstances did not justify causing death by gun shot injuries. Bandlamuddi Atchuta Ramaiah v. State of A.P., AIR 1997 SC 496 : 1996 Cr LJ 4463 death of neighbor caused at a time when there was no apprehension of loss of life or property; right exceeded. Ramchandran v. State, 1994 Cr LJ 2741 (Mad); Sri Kumar Sharma v. State of Bihar, 2003 Cr LJ 2258 (Pat), right of private defence found justified, hence acquittal.
  224. Raja Ram, 1977 Cr LJ NOC 85 (All).
  225. State of U.P. v. Ramswarup, 1974 Cr LJ 1035 : AIR 1974 SC 1570; Onkarnath, 1974 Cr LJ 1015 : AIR 1974 SC 1550.
  226. State Amendments: Karnataka-The following amendments were made by Karnataka Act No. 8 of 1972, s. 2 (w.e.f. 7-10-1972). In its application to the State of Karnataka in s. 103(1) in clause Thirdly--(i) after the words "mischief by fire", insert the words "or any explosive substance". (ii) after the words "as a human dwelling, or" insert the words "as a place of worship or", (2) after clause Fourthly, insert the following clause, namely: Fifthly-Mischief by fire or any explosive substance committed on any property used or intended to be used for the purpose of any Government or any local authority, statutory body or company owned or controlled by Government or railway or on any vehicle used or adapted to be used for the carriage of passengers for hire or reward."
  227. Maharashtra-The following amendments were made by Maharashtra Act No. 19 of 1971, s. 26 (w.e.f. 31-12-1971). In its application to the State of Maharashtra, in section 103, add the following at the end, namely:--Fifthly-Mischief by fire or any explosive substance committed on any property used or intended to be used for the purpose of any Government or any local authority, statutory body, company owned or controlled by Government, railway or tramway, or on any vehicle used or adapted to be used, or the carriage of passengers for hire or reward."
  228. Uttar Pradesh--The following amendments were made by U.P. Act No. 29 of 1970, s. 2, w.e.f. 17-7-1970. In its application to the State of Uttar Pradesh, in section 103, after clause Fourthly, add the following clause, namely:--Fifthly-Mischief by fire or any explosive substance committed on--(a) any property used or intended to be used for the purpose of any Government or any local authority or other corporation owned or controlled by Government; or (c) any transport vehicle as defined in clause (33) of section 2 of the Motor Vehicles Act, 1939.
  229. Ramram Mahton, (1974) 26 Pat 550.
  230. Chakradhar, (1964) 2 Cr LJ 696.
  231. Punjabrao, (1945) Nag 881.
  232. Rajesh Kumar v. Dharamvi, 1997 Cr LJ 2242 : AIR 1997 SC 3769, the accused came to the place of occurrence and attacked the complainant after the latter had already damaged the outer door of the house. It was held that the accused had no right of private defence.
  233. Balakee Jolahed, (1868) 10 WR (Cr) 9; Gulbadan, (1885) PR No. 25 of 1885.