Extent of right to Self-Defence: Sec99 IPC

Q) A and B were both security guards posted outside the home of a senior army officer, Mr X. They often used to exchange hot words with each other in context to the other. On the day of holi festival both of them had a verbal exchange due to the fact that both wanted to go to home early for festival that led to altercation b/w the two, both of them instantaneously aimed their revolvers at each other respectively. ‘C’ who was also on duty with them intervened and pacified both of them. Both agreed to lower their weapons respectively. The moment ‘B’ noted that ‘A’ had lowered his revolver, he immediately fired at ‘A’ and killed him. On being tried ‘B’ was awarded death sentence. However, on appeal the HC acquitted ‘B’ on the plea of self-defence. The state intends to go in for appeal in the SC against the decision of HC. Advise in light of the case-law on the subject

 On perusal of the facts provided following are crucial:

a) It is a recorded fact that both A and B had no liking for each other and they would often engage in verbal spat

b) ‘B’ act of firing upon A was a  conscious fact for a simple reason that he waited for ‘A’ to lower his weapon. And seeing ‘A’ do so he fired the shot killing A

For completion of offence under Sec 300 culpable homicide of the degree mentioned in any of the four clauses of Sec 300 must be proved. The first three are at higher level as ‘intention’ of offender in causing death must be proved whereas for fourthly ‘knowledge’ of offender in causing death must be shown. Besides these other attributes too form part of these clauses

In the giving circumstances there is no doubt in the fact that B had garnered intention to kill A. this is clear from the fact that both A and B often entered in hot verbal exchanges in some context or other. The plea of self-defence has no application in this case because it is a noted fact that A had lowered his gun after which B shot him. This subsequent conduct of B precisely demolishes the self-defence plea because Sec 99 para 4 (IPC ) lays :

“ the right of self-defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence”

When A had lowered his gun the danger on B’s life ceased but B still had grudge against A which resulted in him firing at A and killing him. There cannot be a malicious or vindictive intent in act of self-defence.

Even Sec 100 under which the right of private defence to cause death is included, the restricitons are explicit: 

" When the right of private defence of the body extends to causing death.—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault"

There was no resonable apprehension on B's life or limb when A had lowered his pistol, still B shot A.  

In Darshan Singh v State of Punjab [(2010) 2 SCC 333] it was stated:

“ When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also

settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.”

 In Mahabir Choudhary v. State of Bihar [(1996) 5 SCC 107] where accused were alleged to have exceeded their private defence against property…..“The court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing”

Herein reasonable apprehension of death or grevious hurt upon body of B ceased as soon as A lowered the pistol after tempers were pacified at C behest. But  B acyions dilute his stand that he shot in order to protect himself.

Sec 300 Excp 4

Even if the plea of exception 4 of Sec 300 is taken by B, the same shall hold no good. The exception states:  

 “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

The above exception is applied on th premise that even if it is assumed that fight between A nd B was a sudden fight in heat of passion as both wanted to go home early for Holi. The exception requires that offender must not have taken undue advantage, which certainly is not the case here, B had fired upon A when he had lowered the gun which is a action emerging from violent intention aimed at ending the life of A. Moreover the heat of passion had cooled down as A had lowered his gun.

In State of MP v Shiv Shankar [Sept 2014 SC] An altercation took place between accused and complainant party.   The accused went inside his house, brought the licensed gun of his brother and fired a shot hitting the deceased on the stomach. Apart from the accused, acquitted co-accused and others had Kattas and 12 bore single barrel guns. The acquitted co- accused also fired in the air. The deceased succumbed to his injuries. Here SC convicted the accused for murder

“It is clear from the case of the prosecution mentioned above that the accused first slapped the complainant which was followed by verbal abuses and thereafter the accused brought the licensed gun and fired at the deceased, who died. It was, thus, a voluntary and intentional act of the accused which caused the death. Intention is a matter of inference and when death is as a result of intentional firing, intention to cause death is patent unless the case falls under any of the exceptions. We are unable to hold that the case falls under Exception 4 of Section 300, IPC as submitted by learned counsel for the respondent. Exception 4 is attracted only when there is a fight or quarrel which requires mutual provocation and blows by both sides in which the offender does not take undue advantage. In the present case, there is no giving of any blow by the complainant side. The complainant side did not have any weapon. The accused went to his house and brought a gun. There is neither sudden fight nor a case where the accused has not taken undue advantage.

In any case, the pleas of  accused do not withstand the scrutiny of self-defence principles. And HC was not justified in acquitting B on this ground. The conviction under Sec 302 must be restored, though the punishment could be lowered.

In Darshan Singh’s case following principles were evolved regulating the use of self-defence plea under IPC:

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

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

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

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

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

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

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

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

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

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