‘A’ is attacked by a mob that attempts to kill him. ‘A’ in the exercise of his right of private defence fires at the mob killing one of the several children mingled with the mob. What offence, if any, is committed by ‘A’?

Question: ‘A’ is attacked by a mob that attempts to kill him. ‘A’ in the exercise of his right of private defence fires at the mob killing one of the several children mingled with the mob. What offence, if any, is committed by ‘A’? [HR.J.S. 1995 (II) R.J.S. 1986, WBCJ, 1995, MPCJ. PT. 1986]

Find the answer to the mains question only on Legal Bites. [‘A’ is attacked by a mob that attempts to kill him. ‘A’ in the exercise of his right of private defence fires at the mob killing one of the several children mingled with the mob. What offence, if any, is committed by ‘A’?]

Answer

Section 106 of IPC deals with the Right of private defence against deadly assault when there is a risk of harm to an innocent person. The provision states that, if in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

The section says that in the case of an assault reasonably causing an apprehension of death, if the defender is faced with such a situation where there exists a risk of harm to an innocent person, there is no restriction on him to exercise his right of defence and he is entitled to run that risk.

In other words, with the presence of innocent persons in situations where one is entitled to exercise his right of private defence, there is no curtailment in one’s right and he is entitled to use force even at the risk of causing harm to those innocent persons. The only condition is that he can do such a thing only when there is an apprehension of death. If the apprehension is of any other kind but not of death, this section does not give him such a right.

The present case at hand is borrowed from the Illustration of section 106. Here, in case of 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 the 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.

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