Right of private defence under

BNS
sec 34-44
Unit 5
 • Sec. 34 gives a general right to everyone to act under private defence.
The right of private defence authorises individuals to take the law into their own hands. However, the most important principle in this context is
that the right of private defence requires that the force used in the defence should be necessary and reasonable in the circumstances.
Right to private defence is a preventive not punitive in nature.
To use necessary force against a wrong doer for the purpose of protecting one’s own body/property.
• Sec 36: Right of private defence against the act of a person of unsound mind. etc.
Two important points:
1. Private defence is available against the aggressor/assailant only, and
2. The right is available only when the defender entertains reasonable apprehension.
• Sec 38: is a pre-condition to this defence and specifically so mentioned in Sections 35, 38, 39, 41 and 42.
There is no private defence available under these conditions-
1. Against a public servant acting in good faith.
2. Against act of those who are acting under authority/direction.
3. When there is sufficient time to take recourse to public authority.
4. No excess harm be used.
 Right to private defence to Body
• These sections deals with private defence against body 37, 39, 40, 41.
• Reasonable apprehension of death or grevious hurt.
• No right to private defence if time to have recourse to the public authority.
• Only proportionate harm be inflicted as per the nature of injury or apprehension.
Sec. 38: when private defence extends upto causing death of a person-

Apprehension Apprehension Assault with Kidnapping/ Wrongful

Natural lust confinement
of death of grievous hurt intent to rape abduction
(Unable to rescue)

Acid attack/its attempt causes

grievous hurt
 Four ingredients for sec. 100 is must-
1. Persona exercising private defence must be free from fault in bringing about the encounter.
2. Peril to life or of great bodily harm either real or apparent to create honest belief of
exceeding necessity.
3. No safe or reasonable mode of escape by retreat (withdraw).
4. There must have been a necessity for taking the life.
• Private defence can be exercised and causing any harm other than death. (subject to the
restrictions of sec. 37
• Commencement and continuance of private defence of body- (not necessary
offence is done)

As soon as apprehension of danger

to the body arises Continues so long as apprehension of
(attempt/threat) danger to the body continues
 Right to private defence to property
• These sections deals with private defence against property 41,42, 43.
Private defence when extend to causing death, when these offences are committed or
attempted –
House-breaking by Mischief by fire
Robbery (tent/vessel/building) Theft/mischief/house
night
Used as human dwelling or trespass
custody of property

• Private defence extends to cause any harm other than death. (S. 42)
Commencement & continuance of private defence- House
Theft breaking at
Robbery night-
a) Offender effected his retreat Cr. Trespass/mischief
Fear of instant As long as house
b) Gets assistance of public Continues commission
death/hurt/wrongful trespass
authority of cr. Trespass/mischief
restraint continues continues
c) Property recovered
 Amjad Khan v State AIR 1952 SC 165

• A communal riot broke out at Katni on the 5th of March, 1950, between some Sindhi
refugees resident in the town and the local Muslims. The trouble started in the locality
known as Zanda Bazar or Zanda Chowk. Police Constable Bharat Singh, P. W. 17, who
made the First Information Report, said that most of the shopkeepers in Zanda Bazar are
Sindhis. He stated that when he was told that trouble had broken out there he proceeded
to the spot and found that the goods in the Muslim shops in that locality were scattered. It
is also in evidence that some Muslims lost their lives.
• Issue- whether there is a right of private defence?
• Held-The appellant did not use more force than was necessary. Indeed, the firing, far from
acting as a deterrent, spurred them on and they ransacked and looted the place.
• The convictions and sentences are set aside and the appellant will be released.
 Kishan v. The state of Madhya Pradesh AIR
1974 SC 244
• Facts-Three persons were tried for the murder of one Bucha by the Additional Sessions Judge, Tikamgarh.
The prosecution case was this: On May 4, 1968, Damrulal Went to the house of Bucha while he was
supervising foundation-digging near his house. Damrulal warned the deceased to abstain from using bricks
belonging to him Bucha replied that he was using his own bricks. Then there was an exchange of hot words
between them. Thereafter Damrulal left the place angrily after giving a warning to Bucha that he would soon
settle the score. The work came to a stop at about 9 a.m. . and the labourers left the place. While the deceased
was taking his meal in the verandah of his house, Damrulal, Ganesh and the appellant along with their brother
Har Charan arrived there. Ganesh exhorted his brother Har Charan to catch hold of Bucha and kill him.
• Held- The appellant could not claim to have beaten Bucha in exercise of the right of self-defence.
• With these injuries death was inevitable." This medical opinion clearly brings the case of the appellant within
the purview of Section 300, third clause. So the High Court is right in convicting him under Section 302 I.P.C
 Kesho Ram v Delhi Administration 1974 AIR 1158

• It was alleged that the appellant had, on 17-3-1967, at 4,30 p.m., in Rameshwar Nagar, obstructed
Sarvshri Rattan Singh, Maharaj Singh ;and Raghbir Singh, Section Inspectors, and Dunger, a Peon
of the Delhi Municipal Corporation, when they went to seize a buffalo belonging to the appellant in
the discharge of their duty to, realise the milk tax from him, and struck Rattan Singh on the nose
with the result that it bled and was also fractured.
• On facts found, it has to be assumed that the appellant had objected to the taking of his buffalo,
and, as this was of no avail, he had given a blow to Rattan Singh on the nose which bled and was
also fractured as a result. It is true that, if the act against which a right of private defence is pleaded
is not done in good faith the protection of Section 99 I.P.C. will not extend to it.
• The action of the Inspectors did not become vitiated by bad faith simply for that reason. They were
acting honestly in the exercise of the powers delegated to them by the Commissioner. Their attempt
to recover the tax due, by seizure of the animal, was not entirely outside the law.
Krishnamurthy@Gunodo and Other v. State of Karnataka(Criminal
Appeal No. 288 of 2022)
• Section 34 Indian Penal Code makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply
there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or pre-arranged
plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation.

• For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common
intention can be formed just a minute before the actual act happens.

• whether or not there exists a common intention has to be determined by drawing inference from the facts proved.

• Section 34 Indian Penal Code also uses the expression "act in furtherance of common intention". Therefore, in each case when Section 34 is invoked, it is
necessary to examine whether the criminal offence charged was done in furtherance of the common intention of the participator. If the criminal offence is
distinctly remote and unconnected with the common intention, Section 34 would not be applicable. However, if the criminal offence done or performed was
attributable or was primarily connected or was a known or reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of
the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention.

• Held- that these two Accused could have premeditated the result which ensued when Krishnamurthy behaved and acted in the manner he did. Clearly, they had
not joined Krishnamurthy when he had acted and have stood by. There is nothing to indicate that their acts, that is, holding the hands and pulling the legs of the
deceased making him fall down, were done in furtherance of the common intention that Krishnamurthy would thereupon put his leg on the neck of the deceased,
crushed his chest and fracture the ribs. They are not guilty for the offence under Section 300 or even Section 299 of the Indian Penal Code on the ground that
they shared common intention as understood on application of Section 34 Indian Penal Code.

• Held- conviction converted to that under Section 323 read with Section 34 Indian Penal Code. Conviction of Thimmappa and Gopala upheld for individual
offences Under Sections 447, 504, 506 and 341 Indian Penal Code.
 Cases:
• Amjad Khan v State AIR 1952 SC 165
• Kishan v. The state of Madhya Pradesh AIR 1974 SC 244
• Kesho Ram v Delhi Administration 1974 AIR 1158
• Krishnamurthy@Gunodo and Other v. State of Karnataka(Criminal Appeal
No. 288 of 2022)
• Thank you.