These are days of increasing violence – particularly against
women and the elderly persons. Do we
have to helplessly suffer these atrocities? No! Our criminal law (The Indian Penal Code 1860 Sections 96 to
1106) has clear provisions which give rights to people to resist
violence and to defend themselves and others against attacks on person and property.
A summary of the law regarding defense against violence is this: Every person has a right to defend his own body or another person’s body against any offence affecting the body. Further every person has the right to protect his own property or the property of another person against theft, robbery or criminal trespass.
It is clarified that this right to private defense (popularly
known as self-defense) is available only when public defence (such as police)
is not available. Further a person cannot inflict more harm than what is
necessary for the purpose of the defense.
However, under certain circumstances a person can even cause
the death of his assailant. But this extreme right to kill the assailant
is available only when the person faces an assault with intention to commit rape. Or kidnapping or abduction or when a fear
is created in his mind that he is going to be killed or subjected to grievous
harm.
Having studied the summary of the law regarding defense against certain offences we
can see some more details. When the law says that a person can kill another person if he perceives that he will be killed, mere perception will do. It is not necessary that there should be actual danger. A person saw his father beating his mother. He feared that his mother will be killed. So he shot his father. The court held that he acted in private defense. It may be noted that when a person acting in self-defense causes the death of an assailant the death can be voluntary. That is, it need not be mere accident or due to reflex action. The act of killing can be intentional (caused by the fear of being killed).
But the fear must be clear and not merely imaginary. Once a
person saw a weak old woman stealing at night and shot her on the plea that she
was stealing. The Court said he could not take shelter under private defense
looking to the circumstances. While
exercising self-defence a person can cause harm to innocent bystanders also.
Once a mob attacked a man. He had to fire at the mob in order to protect
himself. He fired at the mob and a few children who were mingled with the mob
were harmed. The Court held that the man had the right of private defense.
Is it possible for people to misuse the right of self-defence. Let us say Guru shoots and kills his enemy Babu. Can he plead that he did it in self defence? It is important to note that the burden of proof in case of private defence rests entirely on the person who claims the benefit of private defence. However, very interestingly courts have held that even if a person does not himself plead self defence but the evidence shows that he had clearly acted in self defence then they are bound to take notice of that fact and absolve him of blame.
- It may be noted that we have a law which allows us to kill our assailants in certain special circumstances and the intention to rape is one of them. If this knowledge of self defence (private defence) is spread among our people, especially women then we can hope that many of them may be in a position to defend themselves instead of being miserable victims or corpses.