Nothing is an offence which is done in the exercise of the right of private defence.

COMMENTS

Harm

The fraternity of the non-gazetted employees, who were on strike, sought to make fun of the complainant, who was a loyalists co-worker and was not participating in the strike. The fun was in the nature of having taken a photograph of the loyalist worker with a garland of shoes around his neck. The photograph was neither shown to the complainant nor published. In a prosecution under section 504 against the accused for having insulted the complainant, the submission was made on behalf of the accused that the triviality of the act with a view to befooling a member of the fraternity should operate as a bar to the wrong alleged. The plea was not sustained and it was held that the complainant had been subjected to indignity although the Court took a lenient view of the matter by merely admonishing the accused; Kishori Mohan v. State of Bihar, 1976 Cri LJ 654.

Private defence: object

(i) In judging whether accused has exceeded his right to private defence or not the court has to take into account the weapons used; Madan Mohan Pandey v. State of Uttar Pradesh, (1991) Cr LJ 467 (SC).

(ii) The defence version regarding accused acting in self defence was liable to be proved by accused; Rasikbhai Ram Singh Rana v. State of Gujarat, 1999 (1) Guj CR 176.

(iii) Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the cast that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record; Rizan v. State of Chattisgarh, AIR 2003 SC 976.

Right to private defence

(i) The accused is not required to prove the plea of private defence of person beyond reasonable manner of doubt. The onus on the accused is only to show that the defence version is probable one which is reflected from the salient features and the circum­stances in the prosecution case itself; Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).

(ii) Divergent views expressed by court where prosecution failed to explain the injuries sustained by accused in same occurrence. Hence referred to larger Bench; Ram Sunder Yadav v. State of Bihar, 1999 Cr LJ 3671 (SC).

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.

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.

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.

Illustration

A, a surgeon in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.

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 – Provided-

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.

Illustrations

(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed on offence.

(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.

(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence.

Explanation

Mere pecuniary benefit is not benefit within the meaning of Sections 88, 89 and 92.