by Krishna Pallavi
Private Defence is a basic human instinct that is recognised by law. It is considered to be an involuntary or a spontaneous action of a man, done in order to protect himself from danger. Therefore, if any act is done by a person in order to protect himself or his property or another’s person or property, it is considered to be Private Defence.
However, in order to take the defence of Private Defence, three conditions must be fulfilled. They are:
- There must be imminent threat to the person or property.
- The force used was only for the purpose of protection.
- The force used was reasonable.
To understand this better, let us take a closer look at the requirements of these conditions.
1. There must be imminent threat to the person or property:
This defence states that, the threat imposed on a person must be a real and an imminent threat. Along with this, the reaction to the imminent threat must be instant.
To understand this, let us consider the following example:
Assume that you were playing cricket in your neighbourhood and the most annoying dog ‘Don’ of your neighbourhood starts running behind you furiously. In order to save yourself, you throw the cricket ball in your hand at the dog thereby killing it. The master of Don files a suit against you. Would you be saved for killing Don? Yes! You have the exception of private defence at your rescue.
Therefore, in the above example there was an imminent threat i.e., the dog running behind furiously which was coupled with an instant reaction of throwing the ball at hand at Don. Therefore, the defence obtained here is valid
Now, to understand it further, let us look take the same example with a little twist in it.
You were playing cricket in your neighbourhood and the most annoying dog ‘Don’ of your neighbourhood starts running behind you furiously. Eventually, after running behind you for a while, Don turns back and walks away. You notice this and later pick up a stone and throw it at Don thereby killing it. Would you be saved for such action of yours? No! Why?
In the present scenario, the two main ingredients are not fulfilled. The moment Don turns back and walks away, there was no imminent threat.
Also, the act of picking up a stone later and throwing it at Don is not a justified action in order to claim Private Defence.
2. The force used was only for the purpose of protection:
In order to claim the private defence what has to be shown is that, the force that was used in order to protect oneself was used only for the purpose of protection and that there was no mala fide (bad intention) intention in it.
To understand this, let us consider the following example:
A and B are neighbours. B owns a field where he grows crops. A owns three cows. They enter into B’s field and destroy it. B throws a stick at the cows to shoo them away. This stick hits one of the cow and kills it. A sues B for the act.
Will B be saved? Yes. Why? The force used in this case was used only for the purpose of protecting the field and B had no ill-intention..
Now, to understand it further, let us look take the same example with a little twist in it.
A and B are neighbours. There were constant tiffs between the two. B owns a field where he grows crops. A owns three cows. They enter into B’s field and destroy it. B shooed the cows away. However, remembering their recent feud, B plans to take revenge at A by shooting the cows.
When the cows were almost out of the field, B takes his gun and shoots at one of the cow. This causes death of the cow. When A sues B, B claims Private defence. Will B’s claim stand? No. Why?
The force used in this case was with a malign intention i.e., to take revenge at A, but not in private defence. Also, the force used in the present case was not reasonable.
What is reasonable force? We shall see this in the following element.
3. The force used must be reasonable.
What Private Defence requires, apart from the above elements is that, the force used by the person in order to protect him or his property must be reasonable or proportionate.
To understand this, let us consider the following example:
You are walking home at 1 a.m. and the street is very deserted. After walking for a while, you realize that there is a person approaching towards you. You increase your pace and the person behind you starts running towards you and puts his hand on your shoulder.
You feel threatened, and you punch him on his face. This causes some serious injury to that person and he sues you for the same. You claim private defence. Would your claim stand? Yes! Why?
In this case, punching a person in the face is a reasonable force that a reasonable man would use in order to protect himself from the imminent threat a person following them late in the night.
Now, to understand it further, let us look take the same example with a little twist in it.
You are walking home at 1 a.m. and the street is very deserted. After walking for awhile, you realize that there is a person approaching towards you. You increase your walking pace and the person behind you starts running towards you and puts his hand on your shoulder.
You feel threatened, so you take a gun out of your bag and shoot him. When the trial starts against you for killing that person, you claim private defence. Would your claim stand? No! Why?
In this case, the force used was unreasonable. Why? In order to protect yourself you had other sources such as punching him in the face, holding his hand in defence etc. Shooting a person with a gun is unreasonable and cannot be taken as a private defence.
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