Question: Explain the acts done in good faith.

I Act not intended to cause death, done by consent in good faith for person’s
benefit: According to Section 88, “Nothing, which is not intended to cause
death, is an offence by reason of any harm which it may cause, or be intended by
the doer to cause, or be known by the doer to be likely to cause, to any person
for whose benefit it is done in good faith, and who has given consent, whether
express or implied, to suffer that harm or to take the risk of that harm.
Ingredients: This section provides that the doer of an act will not be liable even
though he causes the harm resulting in death intentionally or knowing that the
act is harmful if:
(1) The act done is for the benefit of the person who suffers injury,
(2) Such act is done with the consent of the person to suffer tht harm or to take
the risk of that harm,
(3) Consent may be express or implied,
(4) Act is done in good faith,
(5) Act is done without intention to cause death though it might have been done
with the intention of causing such harm as may result in death.
Illustration: A, a surgeon, knowing that a particular operation is likely to cause
the death of Z, who suffers under a painful complaint, but not intending to cause
Z’s death, and intending, in good faith Z’s benefit, performs that operation on Z
with Z’s consent. A has committed no offence.
the rule is that consent can never justify an intentional causing of death.
Under this section wrong-doer is protected even though he has done the act
 with the intention of causing harm including grievous hurt but not death. The
defence is available because the act is done in good faith and for the benefit of
the victim.
Cases: A school teacher who administers in good faith moderate and reasonable
corporal punishment to pupils to enforce discipline in the school is protected by
this section and will not be guilty of an offence punishable under 323 of the Code.
This section mandates that he who deals with the life or health of another person
must use competent skill and sufficient attention if the patient dies for want of
either, the persons is guilty of manslaughter.
In Dr. Suresh Gupta V. NCT Delhi, 2004, the surgeon(accused) performed plastic
surgery of the patient in order to remove deformity of nose. During the
operation the patient died. The accused was charged of an offence under section
304A of IPC. He pleaded defence under Section 80 and 88 of IPC. Exonerating
the accused of the charges against him, the Supreme Court held the surgeon not
liable for every accident or death caused during operation, unless there has been
gross negligence or recklessness on his part.
The next exception is:
Consent known to be given under fear or misconception: According to Section
90, “A consent, is not such a consent as is intended by any section of this Code,
if the consent is given by a person under fear of injury, or under a
misconception of fact, an if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such fear or
misconception; or
Consent of insane person: If the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature and
consequence's of that to which he gives his consent: or
Consent of child- Unless the contrary appears from the context, if the consent is
given by a person who is under twelve years of age.
This section does not define consent but describes what is not consent. The
misconception of fact used in this section refers to misconception regarding the
true nature of the act or regarding the effect or consequences of the acts.
In the following cases consent is not free consent under this section:
4. That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.
Illustration: A, in good faith, for his child’s benefit without his child’s consent, has
his child cut for the stone by a surgeon , knowing it to be likely that the operation
will cause the child’s death but not intending to cause the child’s death. A is
within this exception, in as must as his object was the cure of the child.
Ingredients: In order that a person may avail the defence under this section 89,
the following conditions must be fulfilled:
1. Act must be done for the benefit of a person who is either a minor under 12
years of age or a person of unsound mind;
2. Act must be done in good faith;
3. Act must be done by the guardian or by the consent of the guardian or other
person having lawful charge of that person;
4. The consent may either be expressed or implied.
5. If the above conditions are fulfilled, the act shall not amount to an offence.
(1) Consent given by a person under fear of injury’
(2) Consent given under misconception of fact.
(3) Consent given by a child under 12 years of age.
(4) Consent give by a person of unsound mind.
(5) Consent given by an intoxicated person.

III Acts done in good faith for benefit of a person without consent: According
to Section 92: “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: but
1. That this exception shall not extend to the intentional causing of death, or
the attempting to cause death;
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;
3. 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;
4. That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.
Illustration: 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. AS’s bullet gives Z a mortal wound. A has committed no offence.
The next exception is :
IV Communication made in good faith: According to Section 93: “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 that in his
opinion that he cannot live. The patient dies in consequence of the shock. A has
committed no offence, though he know it to be likely that the communication
might cause the patient's death.
In order that protection may be claimed under this section the
communication should have been made:
(1) In good faith, and
(2) For the benefit of the person to whom it is made.
The next exception is: Act to which a person is compelled by threats: According
to section 94, “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 tis exception.
Dr. H.S. Gour has suggested that in order to justify an act under section 94,
three points must be proved, namely:
1. That the person did not voluntarily expose himself to the constraint;
2. That the fear which prompted his action was the fear of instant death;
3. That the act itself was done at a time when he was left with no option but to
do it or die.
Cases: Except murder and offences punishable with death, compulsion is an
Fear must be present at the time of doing the act.
In Devji Govendji, it was held that, “ a policeman is no more justified in
torturing a man to death simply because he had been ordered to do so by his
superior then it will be as good as , a robber can justify his act on the plea
that he had to obey his fellow confederates. Therefore, the principle followed
in Indian cases is that “no man from a fear of consequences to himself short
of apprehension of immediate death arising from threat of injury has a right
to make himself a party to committing mischief on mankind.
The next exception is: Act causing slight harm(trifles): according to section
95, “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.
This section is based on the principle contained in the maxim “de minimis
non curat lex”, which means tht the law takes no account of trifles.
Whether an act which amounts to an offence is trivial would depend upon the
nature of the injury , the position of the parties, the knowledge with which the
act is done.
The following acts are covered by this section:
(1) Where a person takes pods almost valueless from a tree standing on
Government waste land.
(2) Where the accused committed theft of a cheque of no value.
(3) Where the plaintiff complained of the harm caused to his reputation by the
imputation that he was travelling with a wrong ticket.
The following acts are not trivial in nature:
(4) Where a blow was given across the chest with an umbrella by a dismissed
policeman to a District Superintendent of Police because his application to
reconsider his case was rejected.
(5) Where a respectable man is taken by the ear.
(6) Where an Advocate while cross-examining a witness used filthy words,
Exhibiting disrespect or indignity towards the other of the witness.
Case: In one of the cases, the accused had stored for sale mustard oil of a quality slightly
inferior to the purity standard fixed b the rules. It was urged that the variation was only
slight and the appellant should be given the benefit of Section 95. the plea was rejected
and the conviction was confirmed.
Right of Private Defence
Questions: 1. When the “right of private defence” of the body extends to causing death?
2. Explain the provisions relating to Private defence of property?
3. What are the circumstances under which the right of private defence may be
exercised?
Introduction: Section 96 to 106 of the Indian Penal Code speak about the right of private
defence of person and property as defence against criminal liability. Self help is the basic
rule of criminal law. The right of private defence is absolutely necessary for the
protection of one’s life liberty and property.
According to these provisions, a man can use necessary force against an assailant
or a wrong-doer for the purpose of protecting his own body and property and
also another man’s body and property, when immediate aid or help from the
State is not readily available. In doing so, he is not liable for any harm done to
the wrong doer by his acts.
“Things done in private Defence: According to section 96, “Nothing is an offence
which is done in the exercise of the right of Private Defence”.
This Section provides that the act done in the exercise of right of private
defence would not amount to an offence. The expression ‘self defence’ has
been elaborately explained in the next section , that is section 97 of IPC. Various
aspects and the extend to which the right of private defence may be used have
been incorporated under sections 96 to 106. in reaching a conclusion whether
an accused has been justified in use of his right of private defence, the Courts
must take into consideration the situation as a whole, namely the injuries
received by the accused, the imminence of threat to his safety, the injuries
caused by him and the circumstances, particularly whether he had the time to
seek assistance from the public authorities in the situation of the case.
Generally, the onus that he acted in exercise of his right to private defence lies
on he accused himself, but there may be cases when the accused though acting
under the right does not raise this plea before the Court or pleads some other
defence, in such a situation, the Court may suo moto allow this defence to the
accused if it thinks it necessary in the interest of justice.
This view finds support in the Supreme Court’s decision handed down in
Subramani v. State of Tamil Nadu, 2005, wherein the Court observed that the
plea of private defence need not always be taken by the accused, and even if
this plea is not raised by the defence, the court can itself consider it, if the
Circumstances of the case so warrant. However, in this particular case, the right
of private defence was not accepted by the Court.
The Supreme Court in Bhan Singh v. State of Punjab, 1995, held that a person
who comes fully prepared for a fight or a quarrel and attacks the unarmed
victim, will not be entitled to the benefit of private defence.
In Sekar alias Shekheran v. State of Tamil Nadu, AIR 2002, there was a quarrel
between the accused and the deceased which was not premeditated. While
quarrelling the accused suddenly attacked the deceased who fell on the ground
and succumbed to injuries as the accused still continued to hit him on his neck.
Disallowing the plea of private defence, the Court convicted the accused for the
offence under section 304, Part I of the IPC.
In Krishna and others v. State of UP, 2007, the accused was indebted to the
deceased and the latter was persistently asking for the repayment of debt.
There was exchange of abuses between the two on this issue. When the
deceased was going to police station along with his brother to lodge a FIR, the
accused with lathis and knife causing him serious injuries which caused his
death. The Court held the accused guilty of the offence of assault and refused
to accept his plea of private defence.
The Court in this case, reiterated that in order to decide whether the right of
private defence should be allowed to the accused or not, the Court would take
into consideration the following facts:
(i) Injuries caused to the accused;
(ii)Imminence of danger to the accused;
(iii)
The injuries caused by the accused to the person injured; and
(iv)Whether there was sufficient time for recourse to public authorities instead
of using force for self protection.
Section 97: Right of private defence of the body and of property- Every person
has a right, subject to the restrictions contained in Section 99 to defend-
1. His own body, and the body of any other person, against any offence
affecting the human body;
2. The property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of
theft, robbery, mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal trespass.
3. This Section provides that every person has a right to defence the person
and property of his own and also of any other person. The right to defend
property is very limited in the sense that it extends to only 4 offences, namely
theft, robbery, mischief and criminal trespass and attempt thereof.
The exercise of right of private defence relating to person under Section 97 is
justified only where the offence is actually committed and not merely on the
possibility of the occurrence of the offence. As provided under the section 99 of
IPC, the exercise of the right of private defence under Section 97 is subject to
following limitations:
(1) The aggressor’s act should constitute an offence relating to human body
under the IPC;
(2) The person using this right must have apprehension of injury to his body or
body of some other person;
(3) The person exercising this right should not himself be an aggressor; and
(4) The right of private defence is right to defend and not right to take revenge.
Defence of Body: Where a person is about to shoot a person, the targeted
person may fire the gun in his own self defence and it will be no offence.
 The Supreme Court held in Sonelal v. State, 1981, held that right of private
defence begins when there is reasonable apprehension about injury to
human body. Mere intimidation will not constitute a valid ground for the
exercise of the right of private defence. The person exercising this right should
not himself be an aggressor.
The Supreme Court in State of UP v. Niyami, 1987, held that right of private
defence extends not only for self, but also for defending the body or property of
others. The English Law however does not extend this defence to protection of
strangers.
Defence of Property: the exercise of right of private defence is not limited to the
protection of human body but also extends to the protection of one’s property
and property of others.
The right of private defence of property cannot be exercised against a
person who entered the premises lawfully, under the authority of law. Thus in
Kanwar Singh v. Delhi Administration, AIR 1965, a raiding party under the
authority of the Delhi Municipal Corporation Act, seized the stray cattle
belonging to the accused and the accused resisted the seizures by use of force
and inflicting injuries on the raiding party, it was held that the right of private
defence cannot be available to the accused and he was convicted for the offence
of assault.
Exceeding the right of Private Defence: Where the accused has used force which
was excessive in the circumstances of the case, he cannot avail of the right of
private defence.
In the case of Kishore Shambhunath Mishra v. State of Maharastra, AIR, 1989,
two notorious criminals of the locality armed with lethal weapons entered a flat
and forced the occupants to part with money, an act which is an offence of
extortion under section 388 of IPC. The occupants of the flat resisted the
invaders both of whom were killed in the fight. It was difficult to say as to who
actually hit the deceased which caused their death. The Court held all the
occupants in those circumstances were entitled to the right of private defence
and therefore none of them could be convicted for an offence under Section 302
read with section 34 IPC.
Section 98: Right of private defence against the act of a person of unsound
mind, etc., “
When an act, which would otherwise be a certain offence is not that
offence, by reason of the youth, the want of maturity of understanding, the
unsoundness of mind or the intoxication of the person doing that act, or by
reason for any misconception on the part of that person, every person has
the same right of private defence against that act which he would have if the
act were that offence.
Illustrations: 1. Z, under the influence of madness attempts to kill A, Z is
guilty of no offence. But A has the same right of private defence within he
would have if Z were sane.
2. A enters by night a house which he is legally entitled to enter. Z, in good
faith taking A for a House-breaker, attacks A. Here Z, by attacking A under
this misconception, commits no offence. But A has the same right of private
defence against Z, which he would have if Z were not acting under that
misconception.
Acts against which there is no right of private defence:
The clauses one to four, under the Section 99, lays done the limitations within
which the right of private defence can be exercised. In other words, it explains
the conditions under which the right of private defence will not be available.
They are as follows:
(1). Right of private defence does not exist against public servant acting in good
faith: There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or
attempted to be done, by a public servant acting in good faith under colour of his
office, though that act may not be strictly justifiable by law.
For instance, where a police officer in good faith arrests a person, then the person
so arrested will not have any right of private defence against the police officer.
But if the police officer exceeds his authority and makes illegal arrest, then the
arrestee shall have the right of private defence against such police officer.
(2). Acts done under the direction of Public Servant: There is no right of private
defence against a person who has acted under the direction of a public servant.
But there is an exception to this rule. Where a person not knowing that the act
is being done under the directions of a public servant, exercises right of private
defence against the doer of the act, he shall be entitled to defence under this
section. Thus, where a police officer attempted to execute a warrant which was
issued illegally, it was held that the accused were justified in resisting the
execution of that warrant.
(3). Where there is time to have recourse to protection of public authorities:
the principle underlying this provision is that no one can be allowed to take law
in his own hands when he can seek the assistance of public authorities for
redressal of his problem. However, where the assistance of public authorities
cannot be procured and the situation warrants immediate action on the part of
the defender, he can retaliate, to keep away the attack without waiting for such
help.
while deciding on availability of the right of private defence under this clause of
Section 99, the Court will take into consideration the following two aspects:
(i)The nature and gravity of the danger apprehended; and
(ii) Did the accused have time to seek recourse to public authorities for
assistance, instead of making use of the right of private defence himself.
(4) The harm or injury caused should not be more than necessary keeping in
view the circumstances of the case: This Clause (4) of this Section further
stipulates that right of private defence in no case should exceed to the causing of
more harm that is necessary for the purpose of defence. Where the accused
continued assault on the deceased after he had fallen on the ground and became
helpless, it was held that there was no need to assault him further therefore, the
accused had exceeded the limits of right of private defence and therefore , lost
that right.
(ii) Did the accused have time to seek recourse to public authorities for assistance,
instead of making use of the right of private defence himself.
(4) The harm or injury caused should not be more than necessary keeping in view
the circumstances of the case: This Clause (4) of this Section further stipulates that
right of private defence in no case should exceed to the causing of more harm that
is necessary for the purpose of defence. Where the accused continued assault on
the deceased after he had fallen on the ground and became helpless, it was held
that there was no need to assault him further therefore, the accused had
exceeded the limits of right of private defence and therefore , lost that right.
Questions: 1. When the “right of private defence” of the body extends to causing
death?
Section 100 discusses, when the right of private defence of the body extend to
causing death: the right of private defence of the body extends, under the
restrictions mentioned in the last proceeding section to the voluntary causing of
death or of any other harm to the assailant, In this offence which occasions the
exercise of the right be of any of the description hereinafter enumerated, namely
1. Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault:
2. Such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequences of such assault:
3. An assault with the intention of committing rape:
4. An assault with the intention of gratifying unnatural lust:
5. An assault with the intention of kidnapping or abducting:
6. An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will
be unable to have recourse to the public authorities for his release.
7. An act of throwing or administering acid or an attempt to throw or
administer acid which may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such act.(this seventh
new clause was added by Criminal Law Amendment Act of 2013).
Condition to invoke section 100:
1. The person exercising the right of private defence must not do any act to
invite the encounter;
2. There must be an actual peril to life or great bodily harm or injury, either
real or apparent to create an honest belief that only by causing death of the
aggressor such peril could be avoided.
3. There must not be any safety or any means of escape by retreat; and
4. There must not been a necessity for taking the life.
This section contemplates that there may be certain situations wherein a
person may not have any alternative except causing death of the aggressor in
exercise of his right of private defence of body. The section enumerates such
situations, wherein a person may use his right of private defence to the extend
of causing death of the assailant in the exercise of his right of private defence
are where there is reasonable and imminent danger or fear of assailant’s act
result in the following:
1. Reasonable apprehension of death or grievous hurt: Clauses first and second
of this Section provides that the right of private defence of body extends to
causing death, when an assault reasonably causes the apprehension that it
might result in death or grievous hurt if not retaliated promptly. Such
apprehension must be real and reasonable and not imaginary or based on
surmises. Mere reasonable apprehension is sufficient to justify exercise of
the right of private defence by the accused.
In State of UP. V. Zalim, AIR, 1996, there was a verbal altercation between the
deceased and the accused and the deceased took off the shoe of his left leg and
hurled at the accused. On this, the accused felt badly insulted and therefore,
dragged the deceased in the middle of the road and stabbed his causing his
death. Held, hurling of shoes could not cause reasonable apprehension of
imminent danger the mind of a person and therefore, the accused was not
justified in stabing the deceased in the exercise of his right of private defence.
The defence therefore fails.
2. Assault with intention to commit rape or unnatural offence: Clauses third and
fourth of Section 100, stipulates the right of private defence of body
extends to causing death in cases of assault with intention of committing rape or
gratifying unnatural lust. The offences of rape and unnatural lust are defined in IPC
under Sections 376 and 377 respectively.
The Supreme Court in Deo Narayan v. State of UP, 1973, held tht when a vital part of
the body such as head is hit by a blunt weapon, it crates a reasonable apprehension
of grievous hurt or even death in the mind of the defence. Therefore, use of spear by
him may be justified under right of his private defence and it cannot be said tht the
force in those circumstances was excessive than need to stop the oppression.
The case of Gurriya Buchha v. State of Gujarath, AIR, 1962, relates to exercise of right
of private defence under Section 100 in order to protect a person from being a victim
of the unnatural sexual lust of the deceased. In this case, the deceased assaulted a
boy and caused him injuries in order to satisfy his sexual lust. Seeing this, the
accused attacked the deceased who fell down and even after that the accused
continued beating him with the result the deceased dies, Held , the apprehension of
unnatural act by the deceased had come to an end the moment he fell on the
ground, therefore the grievous hurts caused by the accused to the defendant after
his falling down were not justified in exercise of the right of private defence under
section 100. the defence was this disallowed.
3. Assault with intention of kidnapping or abducting: according to Clause fifth of
this section: When there is an assault which is an offence against human body
and that assault is with the intention of abduction as defined in Section 362, IPC,
the right of private defence will be available to the accused when caused injuries
or even death to oppose the act of abduction.
In Vishwanath v. State of UP, AIR, 1960, the husband went to his in laws house to
bring back his wife who had left him and was residing with her parents. His father-
in-law, refused to send his daughter, hence her husband forcibly dragged her out of
the house to take her with him. This infuriated brother-in-law of the deceased
husband stabbed him to death. In defence, the brother of the girl pleaded
protection under clause fifth of section 100 as the act was done to prevent his sister
from being forcibly abducted by her husband. Accepting his defence, the Court
acquitted the accused.
4. Assault with the Intention of Wrongful Confinement: Clause sixth of Section 100
stipulates that the right of private defence of body may extend to causing death
when there is an assault with the intention of causing wrongful confinement. But
the person asserting this defence must have a reasonable
Apprehension that the person so confined did not have recourse to public
authorities for his or her relief.
According to Section 101, that in case of an offence of any other description
enumerated in the section 100, the right of private defence will not extend to
causing of death of the assailant, but accused in defence can cause any other
harm accept death in such a case.
According to Section 102, talks about Commencement and continuance of the
right of private defence of the body: 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 bee committed and it continues as long as such apprehension of danger to
body continues. (also write here Section 103, When the right of private defence of
property extends to causing death, which is dealt in the next question )