A .

WHETHER THE ACCUSED ACTED WITHIN THE LIMITS OF RIGHT OF

PRIVATE DEFENCE IN THE GIVEN CIRCUMSTANCES?

It is humbly submitted before this Honourable Court that the accused, cannot use the basic self-
defence principle because there was no actual threat to his life. Thats why it cannot be say that
the accused person acted in good faith and without premeditation, and also that an intruder had
entered his house at early hour in the morning. which does not extend the right of private defence
to the voluntary causing of death to the wrong-doer. Hence, the accused does not acted in
rightful exercise of private defence in the given circumstances of the present case. The counsel
submits the following to affirm the same.

A.1.COMMENCEMENT OF THE RIGHT OF PRIVATE DEFENCE

The right of private defence commences as soon as a reasonable apprehension of danger to the
human body or to the property of himself or of another person arises from an attempt or threat to
commit the offence, though the offence may not have been committed. In the present case, the
respondent lives in a separate property alone. Regardless of whether the offence was committed,
there is no reasonable apprehension of an offence after a house breaking by early hour of
morning is not justified. When the respondent heard a window opening in the bathroom he
grabbed his 9mm pistol,but he did not see anyone there and also he screaming and shouting for
the intruder to get out of his house.but no response got from other side.so the respondant had not
a reasonable apprehension of danger from an intruder to himself, his partner and his property.
The right of private defence not ensued. And also he cannot claim IPC S.103 secondly extends
the right of private defence to the voluntary causing of death or of any other harm to the wrong-
doer.In Yogendra Morarji vs State of Gujarat,

“ it was contemplated that, the right extends to the killing of the actual or potential
assailant when there is a reasonable and imminent apprehension of the atrocious crimes.
For our purpose, only the first two clauses of Section 100 are relevant the combined
effect of these two clauses is that taking the life of the assailant would be justified on the
plea of private defence; if the assault causes reasonable apprehension of death or
grievous hurt to the person exercising the right. In other words, a person who is in
imminent and reasonable danger of losing his life or limb may in the exercise of right of
self-defence inflict any harm, even extending to death on his assailant either when the
assault is attempted or directly threatened. This principle is also subject to the preceding
rule that the harm or death inflicted to avert the danger is not substantially
disproportionate to and incommensurate with the quality and character of the perilous
act or threat intended to be repelled”.
the
Hon’ble Suprme Court
in the case of Pammi
V/s State of M.P.
100

has held
that the aggressor can’t
avail this Right of
Private Defence as entry
in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
 of Private Defence can’t
be claimed against an act
of Self Defence.
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100

has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Defence.
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100

has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Defence.
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100
has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Defence.
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100

has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Defence
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100

has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Defence
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100

has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Defence.
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100

has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Defence.
the
Hon’ble Suprme Court in
the case of Pammi V/s
State of M.P.
100

has held
that the aggressor can’t
avail this Right of Private
Defence as entry in the
house of deceased with the
weapons, was an act of
aggressions, and the Right
of Private Defence can’t be
claimed against an act of Self
Def
in the State of U.P. versus Ram Swarup (1974),

“ laid down a stringent test with regard to permitting the initial aggressor to claim this
right of private defense under exceptional situations. It necessitates that the aggressor
should have made every effort to negate the aggression, thereby escaping from the
situation already created by him in every possible manner”.

In this case the act done by respondant person having 9mm pistol and shooted four shot as
agressor. Also he had not made more effort to escaping from the danger. The right of private
defence arises when an aggressor has struck or a reasonable apprehension of a grievous hurt
arises depending upon the facts of this case . But such a right in no case extends to the inflicting
of more harm than is necessary to inflict for the purpose of defence.

The person facing threat to life and property is entitled to use force or even cause death of the
assailant. But the force used to defend "must not be unduly disproportionate to the injury which
is sought to be averted or which is reasonably apprehended".However, it was clear in its mind
that the exercise of the right of private defence can never be vindictive or malicious as this would
be repugnant to the very concept of private defence.

A.2 LIMITATION OF THE RIGHT OF PRIVATE DEFENCE

When the accused heard the toilet door slam, there is not apprehension of danger was affirmed
due to proximity of a hidden intruder. The respondent acted while there is no such an
apprehension continued; even as he called out to the deceased tocall the police, noise from the
toilet triggered the instinctive response of the respondent in firing four round with his 9mm pistol
at the toilet door. the respondent exceed the limits of S.99 IPC against apprehension of unlawful
act against him and his property.

Citing Darshan Singh vs State of Punjab, the Supreme Court in Suresh Singhal v. State
(Delhi Admn.)while simplifying the law in case of private defence in an elaborate judgment, has
set out the principles that emerged on the scrutiny of various cases. The relevant points to the
present case are reproduced below:

i. Self-preservation is a 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 continues 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. The accused need not prove the existence of the right of private defence beyond
reasonable doubt.
vii. The Indian Penal Code, 1860 confers the right of private defence only when that
unlawful or wrongful act is an offence.
viii. A person who is in imminent and reasonable danger of losing his life or limb may
exercise right of self defence and inflict any harm even extending to causing death on his
assailant either when the assault is attempted or directly threatened apprehending that
death will otherwise be consequence of such assault.
In Ganpat And Ors vs State. , the Hon’ble Supreme Court observed that,

   Section 100 of the Indian Penal Code, 1860 provides that 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, if such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault. Along with this, Section 104 IPC is also
available to the accused-appellants, which inter-alia provides that 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 at night, 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 not extend, subject to the restrictions mentioned in  section 99, to the
voluntary causing to the wrong-doer of any harm other than death.

Clearly, the respondent has not established preponderance of probabilities in the favour of the
plea of rightful exercise of right of private defence. All these factors eloquently show that the
accused was exeed his right of self-defence contemplated Under Sections 96 and 97 IPC.

A.3.THE ACT OF RESPONDENT FAILS THE TEST OF REASONABILITY AND

PROPORTIONALITY

The protection measures employed must be relative to the danger ahead, i.e. violence used must
be proportionate to the injury or threat to be averted and must not exceed such limits. However,
in such situations yes we can say that it cannot be expected of a person to minutely calculate the
correct proportion of force to be used in defence. But using 4 shots by their 9 mm pistol without
aprehension of the danger is exeed such limit.becouse in this situation the injuries caused by the
bullets shots is sufficient for the death of anyone who is behind the door .

In G. V. S. Subbrayanam v. State of A. P. 

“The Supreme Court Stated that, the principle envisaging the right of private defence is that, the
court will not go into the question of excess by conducting a test of detached objectivity. But the
right of self defence itself is subject to certain limitations, amongst them one crucial restriction
is that the harm inflicted in self defence must not be supplemental than which is legitimately
necessary for the purpose of private defence. However, the force inflicted for private defence
cannot be weighed in golden scale”.

It is all around a settled legal position that the right of private defence is accessible as it were to
safeguard against an animosity when the security of the state authority is not accessible gave the
equivalent is practised inside the constraints recommended in Section 99 of the IPC and other related
arrangements. It is a settled legal position that no assailant can guarantee right of private defence.
In Kishan v. Province of M.P. the Court held that the accused who was an attacker was not
qualified for the right of private defence.

case Jaidev v. State of Punjab wherein it was observed as follows—

“In judging the conduct of a person who proves that he had a right of private defence’
allowance has necessarily to be made for his feelings at the relevant time He is faced with an
assult which causes a reasonable apprehension of death or grievous hurt and that inevitabily
creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in
his mind would be to wards off the danger and to save himself and his property, and so, he
would necessarily be anxious to strike a decisive blow in exercise of his right. It is no doubt true
that in striking a decisive blow, he must not use more force than appears to bp reasonably
necessary But in cealirg with the question as to whether more force is used that is necessary or
than was justified by the provailing circumstances, it would be inappropriate to adopt testa of
detached objectivity which would be so natural in a court room for instance long after the
incident has taken place. The means which a threatened person adopts or the force which he
uses should not be weighed in golden scalts To begin with, the person exercising a right of
private defence must consider whether the threat to his person of his property is real and
immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is
entitled to exercise his right In the exercise of his right, he must use force necessary for the
purpose and he must stop using the force as soon as the threat has disappeared. So lore as the
threat lasts and the right of private defence can be legitimately exercised, it would not be fair to
require that he should modulate his defence step by step, according to the attack, before there in
reason to believe the attack is over.”
In Kala Singh And Ors. vs State Of Punjab
. It was held that in this case the conduct of the respondance was aggressive and there is no
circumstances raised a strong apprehension in the mind of him that he would be killed otherwise.
The apprehension, however, must be reasonable and the violence inflicted must be proportionate
and commensurate with the quality and character of the act done. Idle threat and every
apprehension of a rash and timid mind will not justify the exercise of the right of private defence.

In State vs Badri And Ors. Hon’ble Supreme Court said that

Homicide is justifiable only upon the plea of necessity and such necessity only arises in the
prevention of atrocious crimes.

In this situation only listening of noise of bathroom door is without seeing the real danger is not
said to be necessity to prevention of atrocious crime.

A.4.THE RESPONDENT ACTED NOT IN GOOD FAITH

 The firing of the four shots while in fear is not a naturally instinctive reaction on hearing the
noise from behind the toilet door when the accused was in close proximity. The arguments
advanced above clearly show that the respondent not acted in good faith .

In James Martin v. State of Kerala set out that there are various elements that should be considered
to discover whether the right of private defence is accessible or not. Factors, for example, wounds got
by the accused, the advent of risk to his security, wounds that are brought about by the denounced
and furthermore the conditions wherein the wounds were caused are taken into consideration. It is
hard to anticipate that an individual should measure the power required. Such circumstances are
sober-mindedly seen, remembering ordinary human response and conduct.

Now in this case if we consider the wounds of the deceased person A bullet that hit the right side of
his head fractured her skull and entered her brain. Also the bullet wound above deceased person's
right elbow shattered her upper arm and she would not have been able to use it if she had
survived. The hip wound would have affected her balance. There is no chance to survival of
anyone one who is behind the door. "The wound to the head was incapacitating and probably
almost instantly fatal."

So it is clearly shows that the respondant person know that his act of firing at the toilet door is
sufficient to kill anyone behind the door. It can not be say that the act done by such person is
done under the right to private defence . becouse the injuries of the deceased person clearly
shows that the respondace exceed his limit of right to private defence.

A.5.THE CONVICTION OF THE ACCUSED

while convicting the accused for culpable homicide, the Hon’ble trial court erred in not applying
the settled law IPC section 300 forthly.—If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death, or such bodily injury as is
likely to cause death, and commits such act without any excuse for incurring the risk of causing
death or such injury as aforesaid.

. In the light of the arguments advanced and above-mentioned judicial precedents, it is clearly
said that the respondent has not established preponderance of probabilities in the favour of the
plea that the accused was in his right of self-defence contemplated Under Sections 96and 97 of
IPC, so there is no right to private defence and he is entitled to be punished under section 302 of
IPC.