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 or private defence extends to the running of that risk.

Illustration

A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

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.

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.

Comments

Right of private defence short of death

Section 104 will apply if the wrong doers commit or attempt to commit any of the following offences: (1) theft, (2) mischief or trespass not of the description which is covered under section 103, subject of course to restrictions mentioned in section 99; and in such a case the right of private defence of property would extend only to causing harm other than death to him; Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083.

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 or vessel is used as a human dwell­ing, or as a place for the custody of property;

Fourthly.—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.

STATE AMENDMENTS

Karnataka

(1) In section 103, 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 Government or any local authority, statutory body or company owned or controlled by Government or railway or any vehicle used or adapted to be used for the carriage of passengers for hire or reward.”

[Vide Karnataka Act 8 of 1972, sec. 2 (w.e.f. 7-10-1972)].

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 purposes of 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, for the carriage of passengers for hire or reward”.

[Vide Maharashtra Act 19 of 1971, sec. 26 (w.e.f. 31-12-1971)].

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 Government, or any local authority or other corporation owned or controlled by the Government, or

(b) any railway as defined in clause (4) of section 3 of the Indian Railways Act, 1890 or railways stores as defined in the Railways Stores (Unlawful Possession) Act, 1955, or

(c) any transport vehicle as defined in *clause (33) of section 2 of the Motor Vehicles Act, 1939.”

[Vide Uttar Pradesh Act 29 of 1970, sec. 2 (w.e.f. 17-7-1970)].

* See clause (47) of sec. 2 of the Motor Vehicles Act, 1988.

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.