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1. CRIMINAL JURISPRUDENCE
Q.1) There can be no Criminality without intention. Discuss bringing out
clearly the concept of crime.
OR
Discuss the statement in the context of Mens rea with its exceptions, if
any.[J17,N14,N13,A14]
OR
Elaborate concept of Mensrea with the help of leading case laws.[M17
Ans-
Introduction-
Mens rea’ means guilty mind. It is defined as “the mental element necessary to
constitute criminal liability”. In making a person criminal liable, an inquiry into
his mental attitude is made. Criminal intention, malice, negligence,
heedlessness and rashness, etc. all are different kinds of ‘mens rea’.
Criminal Liability is when person has committed a wrong – he is said to be
liable. Thus, liability is the condition of the person has committed a wrong.
Criminal law defines acts which it prohibits and also prescribes punishments
for committing them. A person, who commits of any of those acts, commits a
crime or is criminally liable or is under criminal liable.
The general conditions of criminal liability are indicated with sufficient
accuracy in the maxim ‘Actus non Facit reum nisi means sit rea’, that is, “the
act alone does not amount to guilt, it must be accompanied by a guilty mind.”
‘Liability’ means and implies responsibility for an act or omission.
Criminal liability may arise:

2. i) out of guilty mind or ‘mens rea’ that is, out of a bad intention
or “dolus malus” or
ii) out of knowledge that an act prohibited by the law is going to
be done or “militia” or
iii) Out of negligence, or
iv) Out of the provision of some statutes even in the absence of
any guilty intention, knowledge or negligence.
Criminal liability may arise also even in the absence of mens rea:
i) under the operation of the doctrine of “strict liability” or absolute
liability or
ii) under statutes where it is, very difficult to prove mens rea and where
the penalty is petty fine, or
iii) under ignorance of law, or even
iv) in cases of wrongs which are mala prohibit (not bad in themselves,
but bad simply because of legal prohibition), which is, as rule, no
excuse.
Under the Indian penal code, as a rule, there is a separate mens rea for each
offence.
MEANING OF LEGAL MENS REA
What does legal mens rea mean?
It refers to the mental element necessary for the particular crime, and this
mental element may be either intention to do the immediate act or bring about
the consequence or (in some crimes) recklessness as to such act or
consequence. In a different and more precise language, mens rea means
intention or recklessness as to the elements constituting the actus reus. These
two concepts, intention and recklessness, hold the key to the understanding of
a large part of criminal law. Some crimes require intention ad nothing else will
do, but most can be committed either intentionally or recklessly. Some crimes
require particular kinds of intention or knowledge.

3. Referring to the element of mens rea, Glanville Williams states: The mere
commission of a criminal act (or bringing about the state of affairs that the law
provides against) is not enough to constitute a crime, at any rate in the case of
the more serious crimes. These generally require, in addition, some element of
wrongful intent or other fault. Increasing insistence upon this fault element
was a mark of advancing civilization. In early law the distinction between what
we now call crimes and civil wrongs was blurred, and liability in both was very
strict. Little or no mental elements was requisite; the law hardly distinguished
between intentional and unintentional acts. In the animistic period of legal
thinking “punishment” was inflicted even upon animals and inanimate objects.
The law has followed a development that can still be seen among our own
young. Small children think of wrongness as any disobedience to rules,
irrespective of intention. Later they learn the relevance of wrongful intent, and
defend themselves by saying “I did not mean do it” similarly, judges came to
accept the maxim Actus Non Facit Reum Nisi Mens Sit Rea as general principle
(though one subject to exceptions) governing serious crimes. For example,
assault involves an intentional or reckless interference with another. The
requirement of a wrongful mental state is found not only in most common law
crimes but also in nearly all statutory crimes if they are of any degree of
seriousness. Thus criminal damage, a statutory crime, requires intention or
recklessness.
HISTORY OF MENS REA
Historically, ‘mens rea’ had origin in the idea of blameworthiness of the
wrongdoer for the wrongful act and, thus, it was an element of crime. In
modern times, though it continues to be a necessary condition for criminal
liability, standards with respect to its enquiry have changed. Different values
have been attached to the concept of “mens rea” in diverse legal system and
outlooks.

4. “Mens rea” has no longer remained the condition of penal liability in its original
sense. It has now been replaced by standards which the law established. Apart
from this change, there are other factors also which have contributed in
relegating the importance of “mens rea” as a condition of penal liability. “Mens
rea” or the degree of “subjective guilt” varies in different classes of offence. For
example, against a charge of kidnapping a girl under the age of 18, an honest
and reasonable belief of the accused that the girl was over 18, is no defense.
The law has now tended to establish absolute liability. A number of new
offences are being defined by the law in every society to ensure the smooth
running of community life under the growing, complicated, social organization.
The rules governing and regulating traffic, electricity and water supply, etc., are
examples of rules of this kind. In such offences, no “mens rea is required to
hold a person liable for breaching them. There is no moral stigma attached
when such offences are committed, and are, mostly, punishable with fines or
penalties.
Mens rea: Latin for "guilty mind"; guilty knowledge or intention to commit a
prohibited act.
Many serious crimes require the proof of mens rea before a person can be
convicted.
In other words, the prosecution must prove not only that the accused
committed the offence ( actus rea ) but that he (or she) did it knowing that it
was prohibited; that their act (or omission) was done with an intent to
commit the crime.
A maxim rich in tradition and well known to law students is actus non facit
reum, nisi mens sit rea or "a person cannot be convicted and punished in a
proceeding of a criminal nature unless it can be shown that he had a guilty
mind".

5. Not all offences require proof of mens rea such as many statutory or regulatory
offences
In Criminal Law, mens rea is the Latin term for "guilty mind" is usually one of
the necessary elements of a crime. The standard common law test of criminal
liability is usually expressed in the Latin phrase, Actus Non Facit Reum Nisi
Mens Sit Rea, which means that "the act does not make a person guilty unless
the mind be also guilty". Thus, in jurisdictions with due process, there must be
an actus reus accompanied by some level of mens rea to constitute the crime
with which the defendant is charged). The Criminal Law does not usually apply
to a person who has acted with the absence of mental fault; this is a general
rule.
It is one of the principles of the English criminal law that a crime is not
committed if the mind of the person doing the act in question be innocent. It is
said that actus non facit reum, nisi mens sit rea (the intent and act must both
concur to constitute the crime) Although prime facie and as a general rule
there must be mind at fault before there can be a crime, it is not an inflexible
rule, and a statute may relate to such a subject-matter and may be so framed
as to make an act criminal whether there has been any intention to break the
law or otherwise to do wrong or not. Mens rea is the state of mind stigmatized
as wrongful by the criminal law which when compounded with relevant
prohibited conduct constitutes a particular crime. Crimes involving mens rea
are of two types, i) crimes of basic intent and ii) crimes of specific intent. In the
former class of crimes, the mens rea does not go beyond the actus reus. In the
second it goes beyond the contemplation of the prohibited act and foresight of
its consequences and has a purposive element.
Literally mens rea means a guilty mind, a guilty or wrongful purpose, a
criminal intent, a guilty knowledge and willfulness.

6. Intention and Motive OF Mens Rea
Highlighting the distinction between motive and intention. A person’s motive is
his reason for acting as he did. Thus A’s motive for killing B may be financial
gain and C’s motive for stealing may be his wish to feed his starving children.
The general rule is that the accuser’s motives good or bad are irrelevant to his
criminal liability. Where the accused, motivated by affection for his mother and
religious duty, had removed her corpse from a grave in a cemetery belonging to
protestant dissenters in order to duty it with the body of his recently deceased
father in a churchyard, it was held that his motives, however estimable they
might be, did not provide a defense to a charge of removing a corpse without
lawful authority. However, good motives were reflected in the punishment
awarded, a fine of one shilling being imposed.
Intention, whether relating to an element required for the actus reus or
ulterior to it, must be distinguished from motive. Motive is secondary intention;
the distinction between further intention and motive is difficult to draw, the
former being relevant simply because it is specified in the definition of a
particular offence.
At common law the motive of the accused is not a necessary element of
his liability and therefore the prosecution have no need to prove what his
motive may have been; but evidence of his motive is of course admissible
against him as tending to establish either the actus reas or the mens rea, or
both
Over Act of Mens rea
Actus Reus and Mens Rea to be convicted of any crime under English law, two
elements need to be proved, the actus reus and the mens rea. The actus reus
for any crime is different, the actus reus is most commonly known as the

7. 'guilty act' or the 'state of affairs', while the mens rea constitutes the 'state of
mind' of the accused. The mens rea of a crime may be present, but if the actus
reus is absent, no conviction can be made. It will have to be determined in the
present case whether both the actus reus and mens rea can be proved, in order
to identify and judge, David and Alex's actions. From the details given, it is
necessary to decide whether Alex was responsible for her actions or was it due
to non-insane automatism. As regards David, the issue of self-defense has to
be considered, but also the actions
Actus reus has been defined as ‘such result of human conduct (conduct here
covers both acts and omissions) as the law seeks to prevent. Actus reus thus
connotes a deed, a material result of human conduct and thus it is constituted
by the event and not by the activity which caused the event. Actus (a deed, a
material result of human conduct) reus (forbidden) excludes the deeds which
commanded by law, such as putting to death a condemned prisoner by
authorized person. However it will be actus reus if condemned prisoner is killed
in an uncommented manner. In R v White, the accused put potassium cyanide
in his mother’s drink, intending to kill her. The medical report stated that
death was due to a heart affect as poisonous substance administered was
insufficient to cause her death. The element of actus reus of murder was
missing as death was not caused by his conduct. If there is no mens rea in
relation to actus reus, the accused cannot be held liable.
The Privy Council held him not guilty of murder because first act of accused
was accompanied with mens rea but it was not cause of death. On the other
hand the second act which was cause of death was accompanied by mens rea.
So accused was guilty of manslaughter as both acts of accused were not
distinguishable.

8. PRESUMPTION OF LAW AS TO MENS REA
As to mens rea the following are important:
1) there is presumption of law that mens rea is required before a
person can be held guilty of criminal offence;
2) the presumption is particularly strong where the offence is
“truly criminal” in character;
3) that the presumption applies to statutory offences and can be
displaced only if this clearly or by necessary implication the
effect of the statute;
4) the only situation where the presumption can be displaced is
where the statute is concerned with an issue of social concern
and public safety is such a concern;
5) even where a statute is concerned with such an issue, the
presumption of mens rea stands; it can also be shown that the
creation of strict liability will be effective to promote the objects
pf the statute.
Outside the class of crimes requiring mens rea there are some that do not
require any particular state of mind but do require negligence. Negligence in
law is not necessary a state of mind; and thus these crimes are best regarded
as not requiring mens rea. However, negligence is a kind of legal fault, and in
that respect they are akin to crimes requiring mens rea. Yet other crimes do
not even require negligence. They are crimes of strict or vicarious
responsibility, and, like crimes of negligence, they constitute exceptions to the
adage “Actus Non Facit Reum Nisi Mens Sit Rea”.
The full definition of every crime contains expressly or by implication a
proposition as to the state of mind. Therefore , if the mental element of any
conduct alleged to be a crime is proved to have been absent in any given case,
the crime so defined is to committed; or again, if a crime is fully defined,
nothing amounts to that crime which does not satisfy that definition. It,

9. therefore appears that the above maxim has not so wide an application as it is
sometimes considered to have. It has undergone a modification owing to the
greater precision of modern statutes. It is impossible to apply it generally to all
statutes, and the substance of all the reported cases is that it is necessary to
look at the object of each act that is under consideration to see whether and
how far knowledge is of the essence of the offence created. Crimes are at the
present day much more accurately defined by statures or otherwise than they
formerly were. But it seems very like an emphatic re-assertion of the doctrine
that mens rea is an essential ingredient in every offence except in three cases:
1) Cases not criminal in any real sense but which in the public interest are
prohibited under a penalty e.g., Revenue Acts;
2) Public nuisance;
3) Cases criminal in form but which are really only summary modes of
enforcing a civil right.
Mens rea and principles of absolute liability
Absolute liability is not to be clearly established. The proof of mens rea is not
necessary when the statute prescribes a strict liability. Then it is sufficient for
the prosecution to prove the doing of the prohibited act, the existence of the
circumstance or the happening of the consequence as the case may be. In
other words, any defense of ignorance, mistake or reasonable care is excluded
unless the law allows it to some limited extent. The reason offered by some
judges for construing an offence as one of strict liability is that the statute is
silent on the question of mens rea; yet if there is in law an implied requirement
of mens rea ( as has from time to time been said), the fact that the Act does
not express the requirement should not affect the matter. Strict liability is
sometimes called “ absolute liability”, but this, although accepted usage, is a

10. misnomer, because all the usual defenses are available except the defenses of
lack of intention recklessness or negligence.
Vicarious liability
The rule of master’s liability for the act of his servant is known as vicarious
liability. It is general rule of criminal law that the master is not liable for the
acts of his servants and agents. The Courts are reluctant to impose vicarious
liability in criminal cases unless clear words of the penal statute compel them
to do so or they are driven to the conclusion by necessary implication when a
although it lies upon the prosecution to establish the liability of the master, yet
the question whether he is liable turns necessarily upon what is the true
construction to be placed upon the statute. The statute should be construed
not merely with reference to the language but also with reference to its subject
matter. There may be statutes under which a master may be held guilty for the
act of his agent or servant. Unless the stature either clearly or by necessary
implication rules out mens rea as constituent part of a crime, a defendant
should not be found guilty of offence against the criminal law unless he has a
guilty mind. Master does not generally have guilty knowledge about the
wrongful act done by servant
Burden of proof of mens rea- it may be found that so called defense, like
insanity, automatism, drunkenness, duress etc., are developments of the
doctrine of mens rea. Since Wilmington’s case it has been firmly established
that the onus is on the prosecution to establish mens rea beyond all
reasonable doubt, whether generally or when such particular issues arise in all
cases other than insanity or where it is otherwise laid down by statute. E.g.
diminished responsibility in murder. In the case of insanity, anomalously, the
burden is on the defense to prove insanity on a balance of probabilities
Mens rea of corporate body.

11. A corporation can be prosecuted as it is a person under 11 of the penal code. A
corporate body or any company cannot be indictable for offences like bigamy,
perjury, rape etc. which can only be committed by a human individual or for
offences punishable with imprisonment or corporal punishment. Bearing these
exceptions, a corporate body ought to be indictable for criminal acts or
omissions for its directors or authorized agents or servants, whether they
involve mens rea or not, provided they have acted or have purported to act
under authority of the corporate body or in pursuance of the aims or objects of
the corporate body. The question whether a corporate body should or should
not be liable for criminal action resulting from the acts of some individual must
depend on the nature of the offence disclosed the allegations in the complaint
or in charge sheet, the relative position of the officer or agent vis-a-vis the
corporate body and other relevant facts and circumstances which could show
that the corporate body, as such, meant or intended to commit that act. Each
case will have necessarily to depend on its own facts which will have to be
considered by the magistrate or judge before deciding whether to proceed
against a corporate body or not. Explaining this decision another Bombay case
it was held, “the law is that a corporate body can be indicated for criminal acts
where those purporting to act on its behalf claim the authority of the body to
act in the manner they
have done.
DOCTRINE OF MENS REA UNDER THE IPC
The doctrine does not apply so much under the Indian penal code which
defines each offence separately and gives the ingredients constituting each
offence. Thus to constitute the offence of theft, a dishonest intention is an
essential fact to be proved. A fraudulent intent cannot be regarded as the
requisite ‘criminal intent’ for constituting the offence of theft. On the other

12. hand, a fraudulent intent is sufficiently a criminal intent for constituting the
offence of forgery or the offence of cheating.
Justice Stephen said: “mental elements of different crimes differ widely.
Mens rea (guilty mind ) means, in the case of murder, malice aforethought; in
the case of theft, an intention to steal ; in case of rape, an intention to have
forcible connection with a women without her consent ; and a case of receiving
stolen goods, knowledge that the goods were stolen. In some cases, it denotes
mere in attention e.g. Case of manslaughter by negligence or forgetting to
notice a signal.”
It appears confusing to call so many dissimilar states of mind by one name
“mens rea” or “guilty mind”. But we must not forget that it is the common law
maxim. Generally speaking, it applies to common law crimes and not to crimes
which are defined as statutes. The meaning of mens rea varies according to the
nature of crime. And the meaning of mens rea can only be ascertained by
reference to the particular definition of a particular crime. There is common
factor in every case and that is intent to injure.
The full definition of every crime contains expressly or by implication a
proposition as to the state of mind. There fore, if this mental element is absent
in any given case, the crime so defined is not committed.
MAXIM - ACTUS NON FACIT REAUM NISI MENS SIT REA
A criminal offence generally consists of two elements, i.e. the mental and
physical elements. A certain mental states viz. intention, knowledge, negligence
or rashness is ordinarily necessary for committing a legally forbidden act. The
requisite mental and physical conditions are expressed by the terms mens rea

13. and actus reus respectively. Since both the components are generally
necessary for the commission of crime, it is said that no crime is committed
unless there is concurrence of guilty act and guilty act and guilty mind. The
common law maxim actus non facit reum nisi mens sit rea conveys the same
principle.
The concept of ‘act’ consisting actus reus is of very wide import. According to
the terms means any event which is subject to the control of the human will.
The term therefore means not only positive acts but also negative acts. i.e.,
omissions to act. It should, of course, be understood that omission to act can
be component of a criminal act only if there is a legal duty to act in a given
situation. The framers of the Indian Penal Code made the following
observations to indicate the extent to which omissions were to be treated as
acts in the context of criminal liability.
Mens rea or the guilty mind is the other essential of a criminal offence. Just as
mens rea alone is not punishable unless followed by the actus reus, actus reus
without mens rea cannot constitute an offence. Various expressions like
intentionally, knowingly, rashly, negligently and dishonestly are used to denote
the various mental states involved in different offences.
The maxim actus non facit reum nisi mens sit rea is of common law origin. The
doctrine has been incorporated in most of the statutory crimes in England,
India and other countries. The difficulty, however, arises in interpreting these
statutes where there is no reference whatsoever to the mental state of the
wrongdoer. The problem is that on the one hand, the courts are required to
interpret the statutes as it without resorting to any extraneous considerations,
and at the same time the judges find it extremely unfair to find a person liable
in the absence of a guilty mind. The courts have therefore been unable
sometimes to get rid of the common law principle even in statutory offences.

14. “It is of the utmost importance for the protection of the liberty of the abject that
a court shall always bear in mind that, unless a statute either clearly or by
necessary implication rules out mens rea as a constituent part of a crime, the
court should not find a man guilty of an offence against the criminal law unless
he has a guilty mind.”
Importance of “Actus Reus” and “Mens Rea” under Indian Law –
Explained!
“Actus non facit reum nisi mens sit rea”
1. is the famous English maxim of criminal law. This maxim means “The act
itself does not constitute guilt unless done with a guilty mind.” This maxim is
popularly known as “Mens Rea”. Mens Rea means “III Intention”.
2.Mens Rea is a well settled principle of common law in England. In every
statutory offence, Mens Rea is an essential ingredient. It is presumed that the
wrong-doer did the offence with an ill intention. The prosecution must prove
the ill intention (Mens Rea) of the accused to prove the offence committed.
3.Only in the cases, where the applicability of Mens Rea is excluded by the
Statutes, then only it can be exempted. Only in few exceptional circumstances
the Doctrine of Mens Rea is excluded. Some of them are:
1. Public Nuisance;
2. Cases, which are not criminal in nature, but are prohibited in the
interest of public at large.
Example:

15. 1 .Environmental Pollution cases, deficiency of services under Consumer
Protection Laws etc. These Laws do not enquire into the Mens Rea of an
industrialist who negligently pollutes the environment and releases hazardous
and noxious effluents into the atmosphere and causes danger and harm to the
public at large.
2. In the similar way, the manufacturer or occupier supplies the defective
goods or services and causes the injury to the consumers.
3. These cases have criminal nature, but in practice, their proceedings are
conducted in the Courts according to the Civil Procedure Code as civil
proceedings and safeguard the civil rights of citizens.
4. This maxim has been applied to all common law crimes in England without
any reservations. Its application to statutory offences was however uncertain
upto 1947. There were two prominent case- laws leading the Doctrine of Mens
Rea. One is R. vs. Prince and another R. vs. Tolson.
EXCEPTION TO THE RULE OF MENS REA
Generally there is no liability under criminal law unless there is a guilty mind.
Following this principle, an entire chapter in the penal code has been devoted
to the conditions which negate criminal liability due to lack of mens rea and
the provision of the Penal Code are subject to it..
The following are some of the more important situations covered by the
exceptions:
1. Act committed due to mistake of fact in good faith. Mistake of law is not
recognized as a defense. (Section 76 and 79 ).

16. 2. Act caused by accident or some mishap despite proper care and attention
observed. (Section 80).
3. Act committed because of necessity, i.e. to prevent greater harm in a
compelling situation. ( Section 81 )
4. Act of a child under 7 years in all cases and the act of a child above 7
years but below 12 years of immature understanding. ( Section 82 and
83 )
5. Act of a person of unsound mind is exempted from criminal liability if at
the time of the commission of the act he was incapable of knowing the
nature of his act or that what he was doing was wrong or contrary to law.
(Section 84). The law is based M’Naughten’s Rules propounded in
England about one hundred years back. Nothing less than total
destruction of cognitive faculties is covered under the exception and
hence it is evident that the concept of legal insanity is narrower as
compared to the concept of medical insanity. The defense of irresistible
impulse, recognized in some of the American jurisdictions, is not covered
under the Indian law.
6. Act of an intoxicated person is a complete defense if the intoxication is
involuntary. Even voluntary intoxication may provide a defense in limited
situations. ( Section 85 and 86 )
7. Acts done by the consent, express or implied, or without consent for
saving of the sufferer’s interest. ( Section 87,88,89 and 92 )
8. Act (except murder or any offence against State punishable with death)
committed under threat of death. ( Section 94)
9. Act done in the reasonable exercise of the right of private defense of
person or property. ( Sections 96-106 )
To constitute an offence, mens rea is not essential in the following cases:
1) Where by statute, strict liability is imposed. Under the provisions of such
statutes a person is held liable even in the absence of any negligence or
mens rea.

17. In the cases involving matters of public health, food, drug etc and in
respect of public nuisances, there is a strict liability imposed by statute.
for example, Adulteration of Foods and Drugs Act, Arms Act, Licensing pf
Shops, Hotels, Restaurants and Chemists Establishment Acts, Road
Traffic Act. Motor Vehicles Act is also some of the statutes which impose
strict liability. Because these statutes are passed in the interests of public
safety and social welfare. Therefore. the law of strict liability under those
statutes is based on the principle : salus populi est suprema lex, i.e. what
ever is for the good of the population is supreme law.
There fore in the interests of the public i.e. for the good of the community
as a whole, it might become necessary to sacrifice the good of the
individual.
2- Where , the principle of vicarious liability is recognized under law of
crimes – for example a) the law imposes upon the owner of a property, an
obligation of managing that property in such a manner that it shall not
injure anyone else or the public. In such case if owner delegates the
management to someone else and that someone else commits the breach
of the obligation, the owner can be held liable vicariously. b) The owner of
a newspaper can be held liable criminally, for a libel or defamatory article
published in it, though it was published without his knowledge and
though there was no guilty mind on his part.
3- Where it is difficult to prove mens rea provided the penalties are petty
fines under statute which has done away with the necessity for mens
rea. Because, in such petty cases, where speedy disposal becomes
necessary and where the proving of mens rea is not an easy affair, or
where expediency demands the doing away with the necessity of proving
mens rea, (it is not necessary to prove mens rea), and the accused may
be fined even without any proof of mens rea.
4- Where a person who does a wrongful act out of ignorance of law, is liable
though he would never have done it if he had known that it was a

18. wrongful act. For example, a person who fails to take a license for his
dog, is liable to be fined, even though he did not know that the license
was required. Because ignorance of law is no excuse.
CASE LAW
CASE LAW-1
R. vs. Prince (1875 LR 2 CCR 154)
Brief Facts:
Henry Prince loved Annie Philips, an unmarried minor girl. He took away her
with an intention to marry her. The father of girl reported to the police against
Henry Prince alleging that Prince had illegally taken away his minor girl, below
the age of 16 years.
The Police arrested Henry Prince and filed criminal proceedings against him.
Henry Prince was tried for having unlawfully taken away an unmarried girl
below the age of 16 years, out of the lawful possession and against the will of
her father/the natural guardian.
The accused contended that he was under the belief that she completed 18
years. He also contended that the girl herself told him about her age was more
than 18 years. The accused also argued that he had no mens rea (ill intention).
Judgment: Jury found upon evidence that before the defendant took her away
the girl had told him that she was 18. However Jury held that the accused’s
belief about the age of the girl was no defence. It was argued that the statute
did not insist on the knowledge of the accused that the girl was under 16 as

19. necessary for conviction, and that the Doctrine of Mens Rea, should
nevertheless, be applied and conviction be set aside in the option of criminal
intention. 16 Judges tried the case and all but one unanimously held that
Henry Prince was guilty of kidnapping.
Principles: A mixed question of fact and law was treated as a question of fact, if
the accused was misled into an aware of fact on account of an error of law. The
jury formulated certain important rules, while disposing this case:
1. That when an act is in itself plainly criminal, and is more severely
punishable if certain circumstances co-exist, ignorance of the existence of such
circumstances is no answer to a charge for the aggravated offence.
2. That where an act is prima facie innocent and proper, unless certain
circumstances co-exist, then ignorance of such circumstance is an answer to
the charge.
3. That the state of the defendant’s mind must amount to absolute ignorance of
the existence of the circumstances which alters the character of the act, or to a
belief in its non existence.
4. Where an act which is in itself wrong, under certain circumstances,
criminal/a person who does the wrong act cannot set up as a defence that he
was ignorant of the facts which turned the wrong into a crime.
5. Where a statute makes it penal to do an act under certain circumstances, it
is a question upon the wording and object of the particular statute whether the
responsibility of ascertaining that the circumstances exist is thrown upon the
person who does the act or not. In the former case his knowledge is immaterial.

20. CASE LAW-2
R. vs. Tolson (1889 23 QBD 168)
Brief Acts:
The accused was tried under Section 57 of the Offences against the Persons
Act, 1861 (similar provision in India is Section 494 of the Indian Penal Code,
1860) for having committed the offence of bigamy.
Under that Section, it was an offence for a married person to contract a second
marriage during the life time of the husband or wife, as the case may be. In
this case, Mrs. Tolson married in 1880.
In 1881, Mr. Tolson deserted her and went away. She made all possible
enquiries about him and ultimately came to know that her husband Mr. Tolson
died in a ship accident in America.
Therefore, supposing herself to be a widow, she married another man in 1887.
The whole story was known to the second husband and the marriage was not
secrecy.
In the meantime, Mr. Tolson suddenly re-appeared and prosecuted Mrs. Tolson
for bigamy. In the trial Court, she was convicted for imprisonment on the
ground that a belief in good faith and on reasonable facts about the death of
husband was no defence to the charge of bigamy. She appealed to the Court of
Appeal.
The question before the Court of Appeal was whether Mrs. Tolson had guilty
intention (mens rea) in committing the offence of bigamy.

21. Judgment: The Court of Appeal by majority set aside the conviction on the
ground that a bona fide belief about the death of the first husband at the time
of second marriage was a good defence in the offence of bigamy.
It also opined that the statutory limitation for the second marriage of seven
years was completed at the time of her second marriage and she informed the
real facts to the second husband. Hence it acquitted the accused.
CASE LAW-3
R. vs. Wheat and Stock (1921) 2 KB 119)
In this case, the accused/an uneducated man handed over his case to his
solicitor for obtaining divorce from his first wife. He believed that as soon as he
handed over his case to his solicitor, he obtained divorce from his first wife.
Believing it in good faith, he married another lady. The first wife prosecuted
him. He pleaded that he did not know the procedure of law and he believed
that he obtained the divorce and with bona fide intention he married another
lady.
The Court did not accept his version, and convicted him for the offence for
bigamy on the ground that reasonable belief about the dissolution of marriage
would be no defence to the charge of bigamy, unless the divorce would be
obtained from a Court of law.
Principles:

22. 1. Two cases, i.e., Tolson and Wheat cases are quite distinct from each other.
In Tolson’s case, it was a mistake of fact. In Wheat’s case, it was a mistake of
law. Mr. Wheat did an act which was forbidden by law, whereas Mrs. Tolson
had no such intention.
2. The Doctrine of Mens Rea was re-surrected and made applicable not only to
common law offences, but also to all statutory offences.
3. There is a presumption that mens rea or evil intention or knowledge of the
wrongfulness of the act is an essential ingredient in every offence
Mens Rea in Indian Law
Technically the Doctrine of Mens Rea is not applied to the offences under the
Indian Penal Code. Here it is wholly out of place. In the Indian Penal Code,
1860, every offence is defined very clearly. The definition not only states what
accused might have done, that also states about the state of his mind, with
regard to the act when he was doing it.
Each definition of the offence is complete in itself. The words “mens rea” are
not used any where in the Indian Penal Code. However the framers of the Code
used the equivalent words to those of mens rea in the Code very frequently.
Such expressions are – Fraudulently (Section 25); Dishonestly (Section 24);
Reason to believe (Section 26); Voluntarily (Section 39); Intentionally; etc.
Moreover in the Indian Penal Code, a separate Chapter (Chapter-IV) on General
Exceptions is provided. Chapter-IV (Ss. 76 to 106) explains the circumstances,
where options of criminal intent may be presumed. Comparing with English

23. Law, Mens Rea has been applied by the Indian Courts, and it is now firmly
settled law that Mens Rea is an essential ingredient of offence.
Important Points:
CASE LAW-4
A. Hari Prasad Rao vs. State (AIR 1951 SC 204) In this case, a servant of a
petrol dealer supplied motor spirit without coupons and in some cases
took advance coupons from the consumers, without supplying them the
spirit, which was an offence under the Motor Rationing Order, 1941. The
Supreme Court held that there were no grounds for conviction of the
master, especially when he was not present at the time of delivery of the
spirit. He, however, was convicted for non-endorsement on coupons by
his servant which was mandatory and an absolute rule. Non-observance
of such statutory rules was punishable even without mens rea.
CASE LAW -5
B. Nathulal vs. State of M.P. (AIR 1966 SC 43):
In this case, the accused/a food grain dealer applied for a licence and
deposited the requisite licence fee. He, without knowledge of rejection of his
application, purchased food grains and sent returns to the Licencing Authority,
who on checking, found that it was in excess of the quantity permitted by
Section 7 of MP Food Grains Dealers Licensing Order, 1958. The accused was
prosecuted. However he was acquitted on the ground that he had no guilty
mind.

24. CASE LAW-6
C. Malhan K.A. vs. Kora Bibi Kutti (1996 SCC 281):
The accused was a financier. He seized a vehicle for which he financed but did
not receive the instalments. The person from whom the vehicle was seized
complained to Police alleging that the accused had stolen his vehicle. The
Supreme Court held that the element of mens rea is totally wanting in this case
and the accused cannot be convicted for the offence of theft under Section 379.
D. In Sankaran Sukumaran vs. Krishnan Saraswathi (1984 CrLJ 317),
the Supreme Court held that Mens Rea is an essential ingredient of the offence
under Section 494 (Bigamy), where the second marriage has been entered in a
bona fide belief that the first marriage was not subsisting, no offence under
Section 494 is committed
E. In C. Veerudu vs. State of Andhra Pradesh, 1989 CRLJ 52 (AP), the
Supreme Court held that Mens Rea is an essential ingredient of the offence
under Section 498-A. Cruelty in Section 498-A means “wilful conduct”. Cruelty
by husband or relatives of husband against a wife includes wilful conduct.
Wilful conduct includes Mens Rea.
F. Section 420 (Cheating) of the Penal Code defines cheating and dishonestly
inducing to delivery of property. While delivering the judgment in Banvarilal
Agarwal vs. A. Surya Narayan (1994 CrLJ 370 Ori.), the Supreme Court
observed that the evidence adduced must establish beyond reasonable doubt,
Mens Rea on the part of the accused. The intention of the person must be
dishonest and there must be Mens Rea. It has to be shown that his intention
was dishonest at the time of making the promise. Dishonest intention cannot

25. be inferred from the mere fact that he could not subsequently fulfil the
promise. The dishonest intention must be from the very beginning.
G. Section 171-D of IPC defines and punishes for Personation at Elections
(rigging). In Mool Chand vs. Emperor (AIR 1937 Sindh 21), the Privy Council
held that Mens Rea is a constituent part of the offence under Section 171-D.
The words of this Section are wide enough to cover the case of a man who,
knowing that he has no vote, or already voted, knowing that another person
bearing the same name as himself as a vote applies for a voting paper though
that name be the same name has his own.
Case law-7
Director of Public Prosecutions v. Majewski (1976) 2 ALL ER 142pp.146-147,
153-155
Mens rea means different things in relation to different crimes. A drug
enforcement officer in order to break the drug ring under order of superior
officers has the necessary mens rea to be a co-conspirator if he participates in
the commission of a crime. It is a different thing that he may not be prosecuted
on success of his plan, but joining a conspiracy to gain information without
any intention of taking part in the planned crime is a different thing and officer
lacks requisite mens rea to be a co-conspirator.
Quite simply therefore mens rea refers to the mental element of the offence that
accompanies the actus reus. In some jurisdictions the terms mens rea and
actus reus have been superseded by alternative terminology. In Australia for
example the elements of all federal offences are now designated as "fault
elements" (mens rea) and "physical element" (actus reus). This terminology was
adopted in order to replace the obscurity of the Latin terms with simple and
accurate phrasing.

26. The exception is strict liability crimes (in the civil law, it is not usually
necessary to prove a subjective mental element to establish liability, say for
breach of contract or a tort, although if intentionally committed, this may
increase the measure of damages payable to compensate the plaintiff as well as
the scope of liability).
Conclusion-
Mens rea was an essential ingredient of an Offence. An application of the rule
of construction to this principle meant that there was no presumption that
mensrea was excluded form statutory offences.
Under common law “It is a sound rule to construe a statute in conformity
with the common law rather than against it, except where and so far the
statutes plainly intended to alter the course of the common law. Let me
conclude this article with observation of the Hon’ble Full Bench of Andhra
Pradesh High Court, in Additional, Commissioner,
Income Tax v. Durga Pandari Nath Tulijayya & Co., where it was observed
as under: – “The doctrine of mens rea is of common law origin developed by
Judge-made law. It has no place in the Legislator’s law. It has no place in the
Legislator’s law where offences are defined with sufficient accuracy…. Mens
rea is an essential ingredient of an offence. However, it is a rule of
construction. If there is a conflict between the common law and the statutory
law, it has always been held that it is a sound rule to construe a statute in
conformity with the common law. But it cannot be postulated that statute
cannot alter the course of the common law. The parliament, in exercise of its
constitutional powers makes statutes and in exercise of those powers it can
affirm, alter or take away the common law altogether. Therefore, if it is plain
from the statute that it intends to alter the course of the common law, then
the plaint meaning should be accepted. The existence of mens rea as an
essential ingredient of an offence has to be made out by the construction of
the statute.”

27. Q.2 )Write a note in detail on Right of Private Defence with its limitation.
Cite case laws.[J17,M16,M15,N14]
Or
Discuss the law relating to private Defence of Property and person. Cite
relevant case laws. [M17,N13,A14]
Ans-
Introduction-
The provisions contained in these sections give authority to a man to use
necessary force against an assailant or wrong-doer for the purpose of
protecting one’s own body and property as also another’s body and property
when immediate aid from the state machinery is not readily available and in so
doing he is not answerable in law for his deeds. Section 97 says that the right
of private defense is of 2 types:
(i) Right of private defence of body,
(ii) Right of private defence of property.
Body may be one’s own body or the body of another person and likewise
property may be movable or immovable and may be of oneself or of any other
person. Self-help is the first rule of criminal law. The right of private defence is
absolutely necessary for the protection of one’s life, liberty and property. It is a
right inherent in a man. But the kind and amount of force is minutely
regulated by law. The use of force to protect one’s property and person is called
the right of private defence.

28. The code except from the operation of its penal clauses of acts done in good
faith for the purpose of repelling unlawful aggression. The right of defence is
absolutely necessary. The vigilance of magistrates can never make up for the
vigilance of each individual in his own behalf. The fear of law can never restrain
bad man so effectually as the fear of the sum total of the individual resistance.
Take away this right and you become in so doing the accomplice of all bad
men. - (Bentham). The law does not require a citizen, however, law abiding he
may be, to behave like a rank coward on any occasion. The right of self defence
as defined by the law, must be fostered in the citizens of every free country,
and it is perfectly cleared that if a man is attacked, he need not run away, and
he would be perfectly justified in the eye of law if he holds his ground and
delivers a counter attack to his assailants provided always, that the injury
which he inflicts in self defence is not out of proportion to the injury with
which he was threatened.
Meaning of Private Defence
The expression ‘private defence’ that has been used in the Indian Penal Code,
1860, has not been defined therein. Thus, it has been the prerogative of the
judiciary to evolve a workable framework for the exercise of the right. Thus in
India, the right of private defence is the right to defend the person or property
of himself or of any other person against an act of another, which if the private
defence is not pleaded would have amounted to a crime. This right therefore
creates an exception to criminal liability. Some of the aspects of the right of
private defence under the IPC are that no right of self-defence can exist against
an unarmed and unoffending individual, the right is available against the
aggressor only and it is only the person who is in imminent danger of person or
property and only when no state help is available. The right of private defence
is a natural right which is evinced from particular circumstances rather than
being in the nature of a privilege[iii].

29. However, the most important principle is that the right of private defence
requires that the force used in the defence should be necessary and reasonable
in the circumstances. But, in the moments of disturbed mental condition, this
cannot be measured in golden scales. Whether the case of necessity exists
must be determined from the viewpoint of the accused and his act must be
viewed in the light of the circumstances as they appear on such occasion.
Specific limitations have also been provided for when the right cannot be
validly exercised and also the provision specifies clearly the cases in which the
right can extend to the causing of death of the aggressor.
The reasonable apprehension can only be justified if the accused had an
honest belief that there is danger and that such belief is reasonably warranted
by the conduct of the aggressor and the surrounding circumstances. This
brings in an iota of an objective criterion for establishing ‘reasonableness.’ The
imminence of danger is also an important prerequisite for the valid exercise
self-defence. Thus, there should be a reasonable belief that the danger is
imminent and that force must be used to repel it.
Nature of The Right
It is the first duty of man to help him. The right of self-defence must be fostered
in the Citizens of every free country. The right is recognized in every system of
law and its extent varies in the inverse ratio to the capacity of the state to
protect life and property of the subject( citizens). It is the primary duty of the
state to protect the life and property of the individuals, but no state, no matter
how large its resources, can afford to depute a policeman to dog the steps of
every rouge in the country. Consequently this right has been given by the state
to every citizen of the country to take law into his own hand for their safety.
One thing should be clear that, there is no right of private defence when there
is time to have recourse to the protection of police authorities. The right is not

30. dependent on the actual criminality of the person resisted. It depends solely on
the wrongful or apparently wrongful character of the act attempted, if the
apprehension is real and reasonable, it makes no difference that it is mistaken.
An act done in exercise of this right is not an offence and does not, therefore,
give rise to any right of private defence in return.
Every person has right to defend his own person against injury or
restraint, and his own property 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 such an offence. And what he may do for himself he
may do for anyone else under similar circumstances. This right is not
dependant on the actual criminality of person resisted; it depends solely on the
wrongful or apparently wrongful, character of the act attempted. If the
apprehension is real and reasonable, it makes no difference that it is mistaken;
it is lawful to kill a lunatic who attacks a man, though the lunatic himself is
not punishable for his act.
Subject to certain limitations the law gives a right to every person to defend his
body or property, or the body or property of another person against unlawful
aggression. He may protect his right by his own force or prevent it from being
violated. It is a right inherent in man. But the kind and amount of force is
minutely regulated by law. The use of force to protect ones property and person
is called the right of private defence.
Section 96to section 106 of Indian Penal Code is related to Right of
Private Defence.
I) Section 96:- Things done in private defence
Nothing is an offence which is done in the exercise of the right of private
defence.

31. Illustration- A is attacked by a mob who attempts to murder him. He cannot
effectually exercise his right of private defence without firing on the mob, and
he cannot fire without risk of harming young children who are mingled with the
mob. A commits no offence if by so firing he harms any of the children.
The right of private defence is the right to protect one’s own person and
property against unlawful aggression of others. It is a right inherent in man,
and is based on the cardinal principle that it is the first duty of man to help
him.
In connection with the right of private defence, the following four general
points may be noted:
1. There is no right of private defence under the code against any act which
is not in itself an offence under the code. An act done in exercise of right of
private defence is not an offence and does not, therefore, give rise to any right
of private defence in return.
2) Gauri vs. Sheikh, (1917) 18 Cri.L.J.8641
Thus- A attacks Z with a knife. Z in self-defence pulls out a revolver. This is not
an offence on the part of Z. A cannot say,”Z about to shoot me, so I killed him.”
It will be seen in this case that if A had not started the trouble, nothing would
have happened.
1. The Supreme Court also has affirmed that the right of private defence is
not available to the initial aggressors. (Dilbagh Singh v. State of U.P.) (1980) 4
S.C.402 1

32. 2. The right of private defence cannot be pleaded by persons who, believing
they will be attacked, court the attack.
3. The accused has to specifically plead the right of private defence. Even if
he does not so plead, but the evidence shows that he did, in fact, act under self
defence, the court is bound to consider it. As the Supreme Court observed, “it
is well settled that even if an accused does not plead self defence, it is open to
the court to consider such a plea if the same arises from material on record.”
In Gangadas v. State of Rajasthan 2 the Rajasthan High court has
observed that the omission to take the plea of private defence in the committing
court is not bar to taking such a plea at the trial, or even in appeal.
Where the party of men are determined to vindicate their right (or
supposed right) by unlawful force, and they engaged in a fight with another
party of men, equally determined to vindicate they right (or supposed right) by
unlawful force, no question of the right of private defence can arise. 3
Basis of the right of private defence –
According to Mayne the whole law of self defence rests on the following
propositions-
1. That the State undertakes, and in a large majority of cases is able to protect
the individual against the unlawful attacks on their person and property;
2. That where its aid can be obtained, it must always be resorted to by
individual;

33. 3. That where such a protection cannot be obtained, an individual who is
threatened can do everything that is necessary to protect himself; but
4. That the violence used in the protection must be in proportion to the injury
to be averted and must not be used to gratify malice or revenge against the
aggressor.
Counter-attack is not private defence –
The counter-attack could in no sense be an attack exercise of the right in
of private defence.1 the right of private defence is preventive, not punitive. In
the exercise of this right an injury to property or body can be averted though it
cannot be avenged.2
Free fight: No private defence –
A free fight is one when both sides mean to fight from the start, go out to
fight and there is a pitched battle. The question who attacks whom is wholly
immaterial and depends upon the tactics adopted by the rival commanders.3
It is well settled that in a free fight no right of private defence is available
to either party and each individual is responsible for his own acts.4
“Private defence is the law of nature which has been restricted to a great
extends by the law of the state. Self preservation is a primary instinct. Nature
prompts man to resist and law recognizes that he is justified in using such a
degree of force as will prevent a repetition”. Thus said Parke, J., The violent self
help of the individual has been replaced by the organized help, the brute force
of the state, but it has not been eliminated. A subtraction of violent
circumstances in which and the extent to which such help may be resorted to.

34. Illustration
It is well settled that in a free fight, no right of private defence is available
to either party and each individual is responsible for his own acts.1
While it is true that law does not expect from the person whose life is
placed in danger, to weigh, with nice precision, the extent and the degree of the
force which he employs in his defence,
It also does not countenance that the person claiming such right should
resort to force which is out of all proportion to the injuries received or
threatened and far in excess of the requirement of the case.2
A plea of private defence of person of co-accused not pleaded in his
statement before the trial court can be sustained by the appellate court if it can
be spelt out of prosecution evidence.3
Private defence - It is well- settled that the right of private defence need
not be specifically pleaded. Its benefit can be given to the accused if
circumstances show that he may have acted in the exercise of it.4
It is also well – settled that unexplained injuries of the accused are a
strong basis for concluding that he might have acted in the exercise of such a
right.5
Persons exercising right of private defence do not intend to commit
criminal act
If the appellants acted in exercise of their right of private defence of
property, it cannot be said that they committed a criminal act in furtherance of
a common intention because Section 96. IPC makes it abundantly clear that
nothing is an offence which is done in the exercise of the right of private
defence.
They did not intend to commit any criminal act or to do anything which may be
described as unlawful. Their object was not to kill the deceased but to protect

35. their property. It may be that in a given case, it may be found on the basis of
material on record that some of them may have exceeded their right of private
defence and for that they may be individually held responsible. But it cannot
be said that the murder was committed pursuant to a common intention to
commit such crime.1
Right of private defence- Burden of proof –
An accused taking the plea of the right of private defence is not require to
call evidence, he can established his plea by reference to circumstances
transpiring from the prosecution evidence itself. The question in such a case
would be a question of assessing
The true effect of the prosecution evidence and not a question of the accused
discharging any burden.
Availability of right of private defence –
Non – explanation of the injuries sustained by the accused at about the
time of occurrence or in the course of altercation is a very important
circumstance. But mere non-Explanation of the injuries by the prosecution
may not affect the prosecution case in all cases. This principle applies to cases
whether the injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and disinterested so
probable, consistent and creditworthy that it far outweighs the effect of the
omission on the part of the prosecution to explain the injuries. In order to find
whether right of private defence is available or not, the injuries received by the
accused, the imminence of threat to his safety, the injuries caused by the

36. accused and the circumstances whether the accused had time to have recourse
to public authorities are all relevant factors to be considered.
These facts bear stamp of a design to kill and take the case out of the purview
of private defence.
(A) RIGHT OF PRIVATE DEFENCE OF BODY
(Ss. 97- 102 )
a) Every person has right to defend his own body or that of another,
against any offence affecting the human body : Section 97
In an English case, Crown v Ros, 1 the accused shot and killed his father
whom he believed to be cutting the throat of his mother. It was held that the
accused had every right to project his mother against his fathers act, viz, that
of cutting his mothers throat.
Cases – Paramsukh, (1925) 27 Cri. LJ 11 2 –
On being falsely informed that certain stolen property was in the
possession of P, a Sub-Inspector proceeded with a constable to P’s house with
the object of making a search. On his arrival, he demanded the said property
from P’s wife. She repudiated all knowledge of it, and told him that her
husband would be back shortly.
He, however, declined to wait for P’s return, but began to threaten the
woman with a cane and laid hands on her.
On hearing her cries, the accused (P’s cousin) ran to her help. An
altercation ensued, ultimately, the accused, on being assaulted by the Sub –

37. Inspector and the constable snatched a heavy stick from the latter and struck
two blows on the fore head of the Sub-Inspector which proved fatal. It was held
that the accused had a right of self defence against the dual assault on his
person.
Kampansare v. puttappa (1943 2 M.L.J. 644) 1–
A boy raised a cloud of dust causing injury to passers-by. The accused,
who was one of them, chastised the boy. It was held that the accused has acted
in the exercise of the right of private defence.
A decree for possession was passed in favour of a member of the
accused’s party and possession having been already given to him, the
accused’s party went to the plot to fence it. The complainant’s party stopped
them as a result of which free fight took place and several persons on both
sides were injured. A member of the complainant’s party was killed by a
gunshot from the accused. On these facts it was held: 1) that the accused had
a right of private defence and he had not exceeded it. It would not be fair to
expect of an accused under such circumstances to weigh in golden scales the
amount of force to be used by him;
2) that it could not be argued that the accused should have approached the
police before taking the law into their own hands; and 3) that from the fact that
death had taken place in the complainant’s party, it could not be said that the
accused persons were the aggressors.
Section 98 – Right of private defence against the act of 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

38. reason of 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.
Every person has the right of private defence of the body against an act,
which would otherwise be a certain offence, but is not that offence by reason of
the doer being of unsound mind, a minor, an intoxicated person or a person
acting under misconception of fact.
Illustration:
a) Z under the influence of madness attempts to kill A. Z is guilty no
offence. But A has the same right of private defence which he would have if Z
were sane.
b) 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 this
misconception.
Section 98 makes it clear that a person does not lose the right of private
defence of property merely because the opposite party is under the
misapprehension.1
Scope - This section lays down that for the purpose of exercising the right of
private defence, the physical or mental capacity of the person against whom
the right is exercised is no bar. In other words, the right of defence of the body
exists against all attackers- whether with or without men’s rea.
Section 99 –
Acts against which there is no right of private defence of body
There are two acts stated in section 99 against which the right of private
defence of the body cannot be exercised.

39. a) Public servant-
There is no right of private defence of the body 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.
b) Protection of public authorities and extent of right
Secondly there is no right of private defence of the body in a case in
which there is time to have recourse to the protection of the public authorities.
However it does not mean that a person must run away to have recourse
to the protection of public authorities when he is attacked, instead of
protecting himself.
In one case, the accused received information one evening that the
complainants were to trespass on his field of the following day, and uproot all
the corn. At about three o’ clock in the early morning, he was informed that the
complainants were on his field and were sloughing up the corn. Thereupon
proceeded to the field with his friends and they were met by an attacked by
complainants party was killed. The court held that complainants being
aggressors, the accused and his friends had a right of self defence. The court
observed that the accused were not bound to act on the information received
on the previous evening and seek the protection of public authorities, as they
had no reason to expect an attack on the field at night.1 Extent to which the
right may be exercised – the right of private defence in no case extend to
inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1 – a person is not deprived of the right of private defence
against an act done or attempted to be done, by the public servant as such,
unless he knows or has reason to believe, that the person doing the acts is
such public servant.

40. Explanation 2 - a person is not deprived of the right of private defence
against an act done, by the direction of the public servant as such, unless he
knows or has reason to believe, that the person doing the acts is acting by such
direction, or unless such person states the authority in writing, unless he
produces, such authority, if demanded.
Section 100 – 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 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, viz-
Firstly – such an assault as may reasonably cause the apprehension that
death will otherwise be the consequences of such assault;
Secondly - such an assault as may reasonably cause the apprehension
that grievous hurt is otherwise be the consequences of such assault;
Thirdly – an assault with the intention of committing rape;
Fourthly - an assault with the intention of gratifying unnatural lust;
Fifthly - an assault with the intention of kidnapping or abducting;
Sixthly - an assault with the intention of wrongfully confining a person
under circumstances which may reasonably cause him to be apprehended that
he will be unable to have recourse to the public authorities for his release.
In Gurligapa, 23 Bom.L.R. 817, the two accused were searched by an
armed gang who announced their intention to kill them. The accused took
refuge in the kitchen. The mob broke into the kitchen and attacked the
accused who hack to death one of the assailants. It was held that the accused
had committed no offence. They were fighting for their lives against a

41. murderous mob, and it was not surprising that they did their best to make
sure that their enemy was dead.
It has held by Gujarat High Court that an apprehension in the mind of
the accused that death may be caused by witchcraft is unreasonable, and
therefore, it cannot confer any right of self defence on the accused, unless he
apprehends actual physical violence from the opponent. (Dhiria Bhavji, (1963)
1 Cr. L.J. 431)
To claim a right of private defence extending to voluntary causing of
death, the accused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or grievous hurt would
be caused to him.
Section 101:- When such right extends to causing any harm other than
death.
If the offence be not of any of the descriptions enumerated in the last
preceding section, the right of private defence of the body does not extends to
the voluntary causing of the death to the assailant, but does extend under the
restrictions mention in section 99, to the voluntary causing to the assailant of
any harm other than death.
Illustration-
Reasonable Apprehension of Danger – Under section 101 a person is
entitled to exercise his right of private defence of the body as against any
assault other than the first and secondly of section 100 to the extend of
causing grievous hurt. If after the commission of assault of a simple or grievous
nature, there is in any case no further apprehension of assault, occasion for
the exercise of his right of private defence of the body should not arise. At the
same time the possibility of the inflicting further assault likely to cause
grievous body injury, cannot as a ruled be ruled out on the mere ground that

42. the injury or the injuries already inflicted are simple. The law in this aspect
honors the human instinct of self- preservation.
In considering whether one is entitled to exercise the right of private
defence on his body, one has to placed himself in the position of the accused in
the midst of the circumstances in which the accused stood and to form and to
form his opinion whether for the accused in those circumstances, it was not
fairly wise to apprehend an injury to the body as would entitle the accused to
exercise the right that the accused claims to have done. Where a defendant
charged with murder asserts that he killed in self defence, his state of mind at
the time killing becomes material and an important element in determining his
justification for his for his belief in an impending attack by the deceased. The
reputation of the deceased for a violent, dangerous or turbulent disposition is
thus a circumstance which would cause such a belief. Again the previous
temperament and disposition shown in his conduct at the time of the assault
must go a great way to cause belief in the mind of the accused in an impending
danger to life accompanied with little chance of escape.
In Laxman Sahu v. state of Orissa, 1 the accused blow a lathi blow on the head
of the victim which it was proved was sufficient to cause death. There was
nothing to show that the blow was given by the accused to defend himself. It
was held by the Supreme Court that the accused had exceeded his right of
private defence and was liable to be convicted under section 304. Part I, I.P.C.
The Court observed that it is needless to point out in his connection that the
right of defence is available only to one who is suddenly confronted with
immediate necessity of averting an impending danger not of his own creation.
The necessary must be present, real or apparent’. In Savita Kumari v. Union of
India, 2 the Supreme Court laid down that in private defence the accused is not
bound to prove his case beyond doubt. The burden lies to the court whether
accused can get private defence in present facts and situations. The burden

43. lies to the court whether accused can get private defence in present facts and
situations.
Section 102:- Commencement and continuance of the right of private
defence of the body.
Right when commences, and how long it continues-
Section 102 provides that the right of self defence commences as soon as
a reasonable apprehension of danger of the body arises from an attempt or
threat to commit the offence, though the offence may not have been committed;
and it continues as long as such apprehension of danger to the body continues.
Reasonable Apprehension:- it is to be noted that the apprehension must be
reasonable, and not fanciful.
The law does not require that a person should not exercise his right of self
defence if by running away he can avoid injury from his assailant. The law does
not require that a person placed in such circumstances should weigh the
arguments for and against an
attack ‘in golden scales’. It would be unnatural to expect him to do so, and the
law in fact does not require any such thing.
An interesting case on the point is that of Kala Singh, 1 in this case, the
deceased was a strong man of a dangerous character, brutal nature, and
reputed to have previously killed a man. He picked up a quarrel with the
accused who was a weakling, came with a stick threw the accused on the
ground, pressed his neck and beat him. When the accused was extricated from
the deceased’s grip, he took up a light hatchet and struck three blows on the
head of the deceased, who died three days later. It was held that the whole
conduct of the deceased was aggressive, and the circumstances were sufficient

44. to raise a strong apprehension in the mind of the accused that otherwise, he
would be killed.
It is to be remembered that the apprehension must be reasonable, and
the violence inflicted must not be greater than is reasonably necessary for the
purpose of self defence. It must be proportionate to and commensurate with
the quality and character of the act it is intended to meet and what is done in
excess is not protected
B) Right Of Private Defence Of Property (Section - 103-105):-
1) Act against which right of private defence of property can be
exercise –
Every person has the right to defend the property (whether movable or
immovable) of himself or of any other person-
a) Against theft, robbery, mischief or criminal trespass, or any act which is
an attempt to commit theft, robbery, mischief or criminal trespass –
section 97
b) Against the act of lunatic, a minor, or an intoxicated person, or a person
acting under a misconception of fact – section 98
Case – Kurrim Bux, 1
One person finding thief entering into a house in the middle of the night
through an entrance in the side wall, seized him while intruding his body and
held him with his face down to the ground to prevent his further entrance and
thereby caused his death by suffocation. At the trial, he pleads the right of

45. private defence. It was held that the right of defence was a good justification. It
is not the intention of the law that the right to defend property is available only
when the thief has already effected entry, for property may be protected by
attacking the thief inside the house as much as by preventing his entry into it.
He has therefore acted legally.
2) Acts against which there is no right of private defence of property
– section 99
Sec. 99 then proceeds to lay down the limitation to the right of private defence
of property. There are two acts against which the right of private defence of
property cannot be exercised.
1) There is no right of private defence of property against an act which does
not reasonably cause the apprehension of death or grievous hurt, if done, or
attempted to be done, by (or by the direction of) a public servant acting in good
faith under color of his office, though that act (or direction) may not be strictly
justifiable by law : S : 99
A person is not deprived of the right of private defence against an act of a
public servant, unless he knows, or has reason to believe, that the person
doing the act is a public servant.
Such a right also exists when the act is done by the direction of a public
servant, unless he knows, or has reason to believe, that the person doing the
act is acting by such direction, or unless such person states the authority
under which he acts, or if he has authority in writing, unless he produces such
authority, when so demanded.
2) There is also no right of private defence of property in cases in which
there is time to have recourse to the protection of the public authorities.

46. Section 99 also provides that the right of private defence in no case extends
to the inflicting of more than it is necessary to inflict for the purpose of defence.
Section 103: private defence of property when may extends to causing of
death
The right of private defence of property extends under section 103 to the
voluntary causing of death or of any other harm to the wrong doer, of the
offence the committing of which or the attempting to commit which occasions
the exercise of the right, be an offence of any of the following description :
1) Robbery
2) House-breaking by night,
3) Mischief by fire committed on any building, tent or vessel, which
building, tent or vessel is used as a human dwelling, or as a place for
custody property,
Theft, mischief or house trespass under such circumstances as may be
reasonably cause apprehension that death or grievous hurt will be the
consequence if such right of private defence is not exercised. A person
employed to guard the property of his employer is protected if he, in the
exercise of the right of private defence, caused the death of a person, with the
reasonable apprehension that the person whom he killed was about to commit
one of the offences mentioned in this section or to attempt to commit one of
those offences. A person whose duty is to guard a public building is in the
same position as a person employed to guard a private building. The mere fact
is that the property to be guarded by him is public property does not give him
an extended right. Therefore a police constable on guard duty at a magazine or
other public building is not authorized to fire at a person on a simple reason
that the latter does not answer his challenge.1

47. But where it was found that : 1) the land was in possession of the
accused person; 2) paddy crop had been grown by the accused persons and
the same ready for harvesting; 3) the deceased and there people were the
aggressors; 4) the two deceased persons and their men had trespassed into the
property and were about to harvest the paddy; 5) theft and mischief were either
being committed or threaten to be committed; 6) when accosted they wanted to
forcibly commit the offence of theft and mischief.
Illustration
Section 100 catalogues the cases in which the right of private defence of
the body extends, under the restriction mentioned in section 99, to the
voluntary causing death. The present section, however, catalogues the cases in
which the right of private defence of property extends, under the restrictions
mentioned in section 99 to the voluntary causing death.
The causing of death in order to prevent the commission of an offence
specified in clause 4 will be justified only where that offence is sufficient to
cause a reasonable apprehension of death or grievous hurt. This clause will not
apply when the apprehension of death arises by reason of the intervention of
the person or persons exercising the right of private defence.1
Extent of right of private defence:-
While it is true that in exercise of right of private defence, only such force may
be used as may be necessary, but it is equally well-settled that at a time when
a person is faced with eminent peril of life and limb of himself or other, he is
not expected to weigh in golden scales the precise force needed to repeal the
danger. Even if he, in the heat of moment, carries his defence a little further
than what would be necessary when calculated with precision and exactitude
by a claim and unruffled mind, the law makes due allowance for it.

48. Section 104:- when right of private defence of property extends to causing
any harm other than death -
If the offence, the committing of which, or the attempting to commit which
occasions the exercise of right of private defence, be theft, mischief or criminal
trespass, 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
extend, subject to the restrictions mentioned in section 99, to the voluntary
causing to the wrongdoer of any harm other than death.
Illustration
Section 104 in effect lays down that if the offence occasioning the exercise of
right of private defence be theft, mischief or criminal trespass, i.e. not of the
description noted about in section 103, the right does not extend to the
voluntary causing of death, but does not extend, subject to the restrictions
mention in section 99 to the voluntary causing to the wrongdoer of any harm
other than death.
The right of private defence of property does not justifying the causing of
death in all cases in which theft, mischief or house trespass is being
committed. It is only when the act which amounts to the offence is such as per
se to cause a reasonable apprehension that death or grievous hurt will result,
that the causing of death is justified. It does not apply when the apprehension
of death arises by reason of the intervention of the person exercising the right
of private of defence. Section 104 applies in cases where an injury (but not
death) is inflicted on the offender in the course of his committing the offence. It
does not apply to a case where death has been caused in exercise of the
supposed right of private defence.
Section 99 lays down that there is no right of private defence: 1) against an act
which does not reasonably caused the apprehension of the death or grievous

49. hurt, if done, or attempted to done, by a public servant or by direction of public
servant acting in good faith under colour of his office though that act or
direction may not be strictly justifiable by law; 2)in cases in which there is time
to have recourse to the protection of the public authorities; 3) nor does the
right of private defence extend to the inflicting or more harm than it is
necessary to inflict for the purpose of defence.
Private defence of property – harm caused not to be excessive
The right of private defence in no case extends to the inflicting of more
harm than necessary to inflict for the purpose of defence (section 99). The
amount of force necessarily depends on the circumstances of the case, and no
protection can be sought if the harm is caused by excessive violence quite
unnecessary to the case.1 The measure of self defence must always b e
proportionate to the quantum of force used by the attacker and which it is
necessary to repel.3 in considering what was the harm necessary to inflict for
the purpose of defence, regard must be had to the position and circumstances
of the parties, their Comparative strength and the force and violence of the
attack, and the consequent agree feelings aroused, the danger apprehended
and the difficulty of adjusting harm 2 caused to the danger threatened. Again
the extent to which the exercise of the right will be justified will depend not on
the actual danger but on whether there was reasonable apprehension of such
danger. But a man who assaulted is not bound to modulate his defence step by
step, according to the attack, before there is reason to believe the attack to be
over. He is entitled to secure his victory as long as the contest is continued. He
is not obliged to retreat, but may pursue his adversary till he finds himself out
of danger; and if it conflict between them, he happens to kill such killing is
justifiable. And, of course, where the assault is once assumed a dangerous
form every allowance should be made for one who, with the instinct of self-
preservation strong upon him, pursues his defence a little further than to a

50. perfectly cool by-stander would seem absolutely necessary. The question in
such cases will be, not whether there was an actually continuing danger, but
whether there was a reasonable apprehension of such danger.1 In the exercise
of right of private defence a person is not called upon to weigh the amount of
force in golden scales so as to keep within the limits of the allowed to him by
law.2 The deceased had stolen the goat from the cattle shed of the accused who
chased him to recover his property and in the process of recovering it,
assaulted the deceased without knowing that the deceased had been hit on the
vital parts. It was held that accused had exceeded the private defence and was
held responsible for culpable homicide.
Section 105:- commencement and continuance of the right of private
defence of property
The right of private defence of property commences when a reasonable
apprehension of danger to the property commences.
The right of private defence of property against theft continues till the
offender has effected his retreat with the property or either the assistance of
the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long
as the offender causes or attempts to cause to any person death or hurt or
wrongful restraint or as long as the fear of instant death or of instant hurt or of
instant personal restraint continues.
The right of private defence of property against criminal trespass or
mischief continues as long as the offender continues in the commission of
criminal trespass or mischief.

51. Section 106 – right of defence against deadly assault when there is risk of
harm to innocent person:-
If in the exercise of the right of private defence against an assault which
reasonably causes the apprehension of death the defender be so situated that
he cannot effectually exercise that right without risk of harm to an innocent
person, his right of private defence extend to the running that of that risk.
Illustration-
A is attacked by a mob who attempts to murder him. He cannot effectually
exercise his right of private defence without firing on the mob, and he cannot
fire without risk of harming young children who are mingled with the mob. A
commits no offence if by so firing he harms any of the children.
Gottipulla Venkatasiva Subbryam
v.
The state of Andhra Pradesh [1970(1) Supreme court cases, 235]
Facts-
the appellants who were tried on then 22 charges by the additional Sessions
Judge, Masulipatam, were acquitted of all the charges. The state preferred an
appeal to the High Court. There was a difference of opinion between the two
learned Judges of High court, one judge upholding the order of acquittal on the
plea of private defence and the other coming to the conclusion that the
prosecution case was proved by the evidence. Under section 429 of the code of
criminal procedure, 1898 (S. 392 of 1973 Code) the case was placed before the
third judge who accepted the prosecution case and convicted the appellants on
the some of the charges. The accused appealed to the Supreme Court,
confining their arguments to the question of the right of private defence.

52. Evolution of the Right of Private Defence
In Roman law, homicide was considered to be an act by which the life of a
human-being was taken away. There were two degrees of criminal homicide,
namely, murder and manslaughter, and two degrees of homicide that did not
expose a person to punishment, namely, justifiable and excusable. Self-defence
was placed in the category of justifiable homicide. In self-defence violence was
lawful: ‘Vim enim vi defender omnes leges emniaque jure permittunt’ (A man,
therefore, incurs no liability, if he kills another’s slave who attacks him.)[xiv].
The Justinian code and the Twelve Tables reiterated this right of private
defence- the Code holding that no greater force than what was sufficient to
ward off the threatened danger was permitted and the Tables on the other
hand, allowing killing in such a case without restrictions regarding it to be
permissible self-redress rather than self-defence.
Under English law the status of the right of self-defence underwent a series of
changes through the ages. In the ancient period, there was absolute liability
even for homicide committed se defended. In the Medieval period, the theory of
pardon developed and it became excusable, whereas in the Modern Age,
homicide committed in self-defence is treated as justifiable, because it is
presumed that such an act is not backed with evil intent.
In the early days, the law regarded the word and the act of the individual but it
did not search the heart of the man. It was the age of strict liability[xv]. Man
was held responsible for his acts irrespective of his intentions. His mental state
was not taken into account when determining liability for the commission of
the crime. It was the external conduct and the injury upon which liability was
imposed. The accidental injuries and the injuries inflicted during self-defence,
also attracted liability. Thus, criminal liability was not related to the evil
intention of the actor.

53. However, in the 13th century there was a shift from strict liability and emphasis
was laid on the mental element. During this period, killing was justified in a
few exceptional cases. One who killed in misadventure, or in self-defence was
still guilty of a crime, although he deserved a pardon from the King[xvi]. During
the Medieval period, though the accused obtained pardon yet he forfeited his
goods for the crime committed in self-defence.
The moral sense of the community could not tolerate indefinitely the idea that
a blameless self-defender was a criminal. Ultimately, the jury was allowed to
give a verdict of not guilty in such cases. Pardon of the King soon became a
formality in such cases and thus grew the concept of excusable homicide. The
act of pardon was a kind of excuse[xvii]. The word excuse itself denoted the
condonation of wrong committed by the offender. Blackstone perceived the
essence of excuses to be ‘the want or defect of will’. This all changed in the
modern period. In modern times, there is a presumption that there is no mens
rea in the homicides committed in self-defence and as such it has become a
justifiable general defence in law. Thus, now no criminal liability is attached to
the accused in such cases. This is in conformity with the provisions of Article 2
of the European Convention on Human Rights.
Thus, in modern times every evolved legal system has accepted the right of self-
defence as a universal one.
Private Defence In Various Legal Systems
British Law
As the common law system does not provide a statutory definition of self-
defence, it is often the opinions of legal authorities that are relied upon. Black’s

54. Law Dictionary enumerates two elements that are necessary to constitute self-
defence, namely:
 Accused does not provoke difficulty, and
 There must be impending peril without convenient or reasonable mode of
escape.
On the other hand Glanville Williams’ analysis of the elements is more
comprehensive: –
 The force is threatened against the person,
 The person threatened is not the aggressor,
 The danger of harm is imminent,
 The force is unlawful,
 The person threatened must actually believe that a danger exists, that
the use of force is necessary and that the kind and amount of force being
used is required in the circumstances, and that the above beliefs are
reasonable[xviii].
American Law
The position under American law is also very similar. Great importance is given
to the following concepts when dealing with the concept of self-defence.
 Requirement of reasonableness (a reasonable and honest belief is
essential),
 Only that amount of force should be used which reasonably appears
necessary to prevent the threatened harm.
Thus, it can be seen that in the various legal systems of the world, there are
certain common established principles pertaining to self-defence.

55. Judicial View on Private Defence
The protection of life and property is axiomatic in every civilized society and
because it is impossible for the State to do so on every occasion – as law
enforcement officers cannot be omnipresent, the individual is given the right of
private defence. The right of private defence legally accords to the individuals
the right to take reasonably necessary measures to protect themselves under
special circumstances. Notably, on the execution of the private defence
provisions in the Penal Code, the framers said “we leave it still in a very
imperfect state…we are inclined to think that it must always be one of the least
exact parts of every system of criminal law[xix].” This suggests that they
recognized the necessity for latent ambiguity to allow judges the flexibility to
read and apply the provisions so as to achieve fairness.
However, the local courts have overlooked this discretion conferred upon them
and instead opted for a far too restrictive (and even unreasonable)
interpretation of the provisions to the extent where private defence is hardly
adequate as a defence, defeating the intention of the provision. The
inconsistency between the judicial interpretation and the intention of the Code
framers is exemplified in the interpretation of “reasonable apprehension” under
Sections 100 and 102[xx]. Evidently, the local courts have adopted a strict
objective approach in determining “reasonable apprehension”, ignoring its
inherent ambiguity. This is in contrast to the current English law that judges
the nature of the danger wholly according to that of the accused’s perception
(purely subjective test).
Darshan Singh v. State of Punjab
The Supreme Court laid down Guidelines for Right Of Private Defence for
Citizens. It observed that a person cannot be expected to act in a cowardly
manner when confronted with an imminent threat to life and has got every
right to kill the aggressor in self defense. A bench comprising Justices Dalveer

56. Bhandari and Asok Kumar Ganguly, while acquitting a person of murder, said
that when enacting Section 96 to 106 of the IPC, the Legislature clearly
intended to arouse and encourage the spirit of self-defense amongst the
citizens, when faced with grave danger.
“The law does not require a law-abiding citizen to behave like a coward when
confronted with an imminent unlawful aggression. As repeatedly observed by
this court, there is nothing more degrading to the human spirit than to run
away in face of danger. Right of private defense is thus designed to serve a
social purpose and deserves to be fostered within the prescribed limit[xxii].”
The court laid down ten guidelines where right of self-defence is available to a
citizen, but also warned that in the disguise of self-defence, one cannot be
allowed to endanger or threaten the lives and properties of others or for the
purpose of taking personal revenge. The apex court concluded by saying that a
person who is under imminent threat is not expected to use force exactly
required to repel the attack and his behaviour cannot be weighed on “golden
scales.”
The Court declared their legal position under the following 10 guidelines[xxiii]:
1. 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 defense within certain
reasonable limits.
2. The right of private defense is available only to one who is suddenly
confronted with the necessity of averting an impending danger and not of
self-creation.
3. A mere reasonable apprehension is enough to put the right of self-
defense 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 defense. It is enough if the accused apprehended that

57. such an offence is contemplated and it is likely to be committed if the
right of private defense is not exercised.
4. The right of private defense commences as soon as a reasonable
apprehension arises and it is co-terminus with the duration of such
apprehension.
5. It is unrealistic to expect a person under assault to modulate his defense
step by step with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the
person or property.
7. It is well settled that even if the accused does not plead self-defense, it is
open to consider such a plea if the same arises from the material on
record.
8. The accused need not prove the existence of the right of private defense
beyond reasonable doubt.
9. The Indian Penal Code confers the right of private defense only when the
unlawful or wrongful act is an offence.
10. A person who is in imminent and reasonable danger of losing his
life or limb may, in exercise of self defense, inflict any harm (even
extending to death) on his assailant either when the assault is attempted
or directly threatened.
Yogendra Moraji v. State
The Supreme Court discussed in detail the extent and the limitations of the
right of private defence of body. One of the aspects emphasized by the court
was that there must be no safe or reasonable mode of escape by retreat for the
person confronted with an impending peril to life or of grave bodily harm except
by inflicting death on the assailant. This aspect has create quite a confusion as
it indirectly suggests that once should first try to see the possibility of a retreat
than to defend by using force, which is contrary to the principle that the law

58. does not encourage cowardice on the part of one who is attacked. But another
viewpoint is that this retreat theory in fact is an acceptance of the English
common law principle of defence of body or property under which the common
law courts always insisted to look first as to whether the accused could prevent
the commission of crime against him by retreating.
Nand Kishore Lal v. Emperor
Accused who were Sikhs, abducted a Muslim married woman and converted
her to Sikhism. Nearly a year after the abduction, the relatives of the woman’s
husband came and demanded that she return. The accused refused to comply
and the woman herself expressly stated her unwillingness to rejoin her Muslim
husband. Thereupon the husband’s relatives attempted to take her away by
force. The accused resisted the attempt and in so doing one of them inflicted a
blow on the head of the woman’s assailants, which resulted in the latter’s
death. It was held that the right of the accused to defend the woman against
her assailants extended under this section to the causing of death and they
had, therefore, committed no offence.
Mohinder Pal Jolly v. State of Punjab
Workers of a factory threw brickbats from outside the gates, and the factory
owner by a shot from his revolver caused the death of a worker, it was held
that this section did not protect him, as there was no apprehension of death or
grievous hurt.
Mithu Pandey v. State
Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising
collection of fruit by labourers from the trees that were in the possession of the
accused persons who protested against the act. In the altercation that followed
one of the accused suffered multiple injuries because of the assault. The
accused used force resulting in death. The Patna High Court held that the

59. accused were entitled to the right of private defence even to the extent of
causing death.
Jassa Singh v. State of Haryana
The Supreme Court held that the right of private defence of property would not
extend to the causing of the death of the person who committed such acts if
the act of trespass is in respect of an open land. Only a house trespass
committed under such circumstances as may reasonably caused death or
grievous hurt is enumerated as one of the offences under Section 103.
Conclusion-
In general, private defence is an excuse for any crime against the person or
property. It also applies to the defence of a stranger, and may be used not only
against culpable but against innocent aggressors.
The defence is allowed only when it is immediately necessary-against
threatened violence. A person who acts under a mistaken belief in the need for
defence is protected, except that the mistake must be reasonable. In principle,
it should be enough that the force used was in fact necessary for defence, even
though the actor did not know this; but the law is not clear. There is no duty to
retreat, as such, but even a defender must wherever possible make plain his
desire to withdraw from the combat. The right of private defence is not lost by
reason of the defender’s having refused to comply with unlawful commands.
The force used in defence must be not only necessary for the purpose of
avoiding the attack but also reasonable, i.e. proportionate to the harm
threatened; the rule is best stated in the negative form that the force must not
be such that a reasonable man would have regarded it as being out of all
proportion to the danger.

60. The right of defence avails against the police if they act illegally, but the
defender cannot take benefit from a mistake as to the law of arrest or self-
defend. The traditional rule is that even death may be inflicted in defence of the
possession of a dwelling.