A, a child below 7 years of age attacks B with a sword. Before A could cause death or grievous hurt to B, B opened fire by a gun on child A (below 7 years of age), A is killed. B is prosecuted under Section 302 I.P.C for the murder of A….

Question: A, a child below 7 years of age attacks B with a sword. Before A could cause death or grievous hurt to B, B opened fire by a gun on child A (below 7 years of age), A is killed. B is prosecuted under Section 302 I.P.C for the murder of A.

B takes the defence that he killed the child in the exercise of ‘right of private defence’ whereas the arguments of prosecution were that B had no ‘right of private defence’ because A was under 7 years of age and his act was not an offence and the right of private defence is exercised only against an act which is an offence and not against such an act which do not constitute an offence. Decide, who will succeed, whether prosecution or defence. Give reasons and also refer to the relevant provision on the point.

Find the answer to the mains question only on Legal Bites. [A, a child below 7 years of age attacks B with a sword..]

Answer

Section 98, IPC provides the right of private defence against the act of a person of unsound mind, etc. This right is applicable to other exceptional cases as well such as:

1. A child below 12 years
2. A person who lacks understanding
3. A person with an unsound mind
4. An intoxicated person

An individual has the same right of private defence against the abovementioned exceptional cases as he has against a sane person.

Further, section 100 talks about when the right of private defence of the body extends to causing death. In certain cases, the body’s right to privacy protection stretches to the degree that it even causes the aggressor’s death. This is recognized by IPC section 100. This right is subject to the restrictions imposed under section 99, it must always be borne in mind, i.e.,

1. if a public servant does not cause a reasonable apprehension of death or grievous harm to the person or damage to the property,
2. if there is insufficient time for recourse to public authorities, and
3. it does not cause more harm than is required to repel the attack.

Therefore, pursuant to these conditions, the right to privacy protection applies to the aggressor’s death, subject to the additional conditions specified in section 100.

As per section 100, the right of privacy protection extends to causing the assailant’s death if any of the six conditions stipulated occur in the assailant’s commission of the offence. In other terms, it guarantees that the body’s right to privacy protection applies to the cause of the actual or potential assailant’s voluntary death if he induces reasonable and immediate fear of death or serious harm in the accused’s mind through either of the defined assaults.

The assault types listed in section 100 are:

1. assault to kill or inflict grievous harm;
2. assault on rape to fulfil unnatural lust;
3. assault on kidnapping or abduction; and
4. assault on wrongful imprisonment.

When death is caused by the exercise of the body’s right of privacy protection, the defender must show that: (a) the crime defended against was one of the six categories referred to in s 100, and (b) he behaved within the limits set out in s 99.

Following the above provisions and the allied reasoning, it is clear that A, the child aged below 7 years in the present case, attacked B by a sword caused reasonable apprehension of causing death or grievous hurt to B, this is when B opened fire by a gun on the child A. Hence, he acted in private defence and is entitled to protection under section 98, IPC.

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