A had an intention to commit rape of a woman namely W. For this purpose, he makes an assault on W. But before he could even touch the body of 'W', she draws out a pistol from her purse and shoots A. Consequently, A dies. W is prosecuted….

Question: A had an intention to commit rape of a woman namely W. For this purpose, he makes an assault on W. But before he could even touch the body of ‘W’, she draws out a pistol from her purse and shoots A. Consequently, A dies. W is prosecuted for the ‘murder’ of A.W takes the defence of 'right of private defence’ whereas the prosecution argues that A had merely 'intention’ to commit rape and he did not even touch the body of W (did not make an attempt to commit rape), so he was in the preparation stage, and mere intention to rape or preparation for rape is not punishable (as offence). Thus, W had no ‘right of private defence’, hence she is guilty of ‘murder’ of A. Has ‘W’ right of private defence to the extent of causing the death of A? Give reasons and also refer to the relevant provision and case law, if any, on the point. [Bihar CJ, 2002]

Find the answer to the mains question only on Legal Bites. [A had an intention to commit rape of a woman namely W. For this purpose, he makes an assault on W…..]

Answer

Section 100 in The Indian Penal Code- 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. The assault types listed in section 100 are:

1. assault to kill or inflict grievous harm;
2. an assault with the intention of committing rape
3. assault with intention of gratifying unnatural lust
4. assault on kidnapping or abduction; and
5. assault on wrongful imprisonment
6. assault on throwing or administering acid or its attempt.

Therefore, the person has a right of private defence against the aggressor who is committing an assault with the intention of committing rape. It is to be noted that to invoke section 100 of the Indian Penal Code, the following conditions of section 99 should be fulfilled-

1. There must be an imminent threat of life to a person or grievous hurt to the body.
2. There must be no reasonable way to escape.
3. There must be no time to approach the appropriate authorities for protection.
4. Causing the death of the person attacking should have been a necessity.

The Hon’ble Supreme Court in the instance of Yeshwant Rao v. State of Madhya Pradesh [AIR 1992 SC 1683] explains the position of law with respect to the third and the fourth provision of Section 100. For this situation, the expired attempted to have sex with the little girl of the accused while she went to the toilet at the backside of her home. The accused, on observing the little girl being assaulted hit the deceased with the spade and the deceased died as an outcome.

The Supreme Court held that the accused was supported in practising the privilege of Private Defence of the body against the perished and subsequently was prosecuted. Here it tends to be seen that the assault that occurred on the girl was adequate to make sensible apprehension in the brain of the accused and in this way his demonstration was supported under Section 100. The privilege of private defence was practised by the accused to secure the body of another.

The bare reading of the provision under section 100 entails that the right of private defence causing the death of the aggressor is available when there is an assault on the victim with an intention of committing rape. Hence, to invoke the protection of section 100, it must be shown that there was some assault done in furtherance of that intention to commit rape. However, in the present case, deceased A was in the mere preparation stage to commit the assault while the accused pulled out her pistol and killed him.

So, based on the wording of the section and the requirement of using that much extend of force as to commensurate with the injury that occurred, it is clear that the accused has exceeded in exercising her right of private defence. Had the accused used the pistol after A tried to assault her with the intention of committing rape, her action would have deemed valid in law, but because that is no the case here, the accused will be held guilty of the murder of A.

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