‘A’, a thief was seen with half of his body and head through the wall of a house occupied by a woman (the accused) and her young idiot son. The accused suddenly caught up a sort of pole-axe and with it struck the thief five times on his neck and nearly cut off his head…

Question: ‘A’, a thief was seen with half of his body and head through the wall of a house occupied by a woman (the accused) and her young idiot son. The accused suddenly caught up a sort of pole-axe and with it struck the thief five times on his neck and nearly cut off his head. Ultimately ‘A’ (thief) died. The accused is prosecuted for murder punishable under Section 302, I.P.C.

The accused took the defence that she has not committed any offence, as she killed the thief ‘A’ in the exercise of her right of private defence. What is your view? Give reasons and also refer to the case law, if any, on the point. [WBJS, 1973]

Find the answer to the mains question only on Legal Bites. [‘A’, a thief was seen with half of his body and head through the wall of a house occupied by a woman (the accused) and her young idiot son. The accused suddenly caught up a sort of pole-axe and with it struck the thief five times on his neck and nearly cut off his head. (52) Ultimately ‘A’ (thief) died…]

Answer

According to Section 99, IPC, the injury which is inflicted by the person exercising the right of private defence should commensurate with the injury with which he is threatened.

At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh, “with golden scales” what maximum amount of force is necessary to keep within the right every reasonable allowance should be made for the bona fide defender.

It is clear from Section 99, the Indian Penal Code that the measures of self-defence must always be proportionate to the quantum of force used by the attacker. The right of private defence is a weapon of defence or protection and not of aggression.

In Laxman Sahu v. State of Orrisa, 1986 (1) Supp SCC 555, the court specifically stated that the right of private defence is available only to one who is suddenly confronted with the immediate necessity of averting an impending danger, not of his creation.

In the present case, the accused exceeded his right to private defence and nearly cut off the head of the thief. The fact that the thief was seen only with half of his body and head through the wall of her house suggests that the accused had sufficient means to take help of public authorities or she could have acted in private defence with simple hurt i.e. a lesser degree of defensive action against the thief.

But she chose to cut his head before even he could come to her house. Hence, the accused is not entitled to the protection of Section 96, IPC and is correctly prosecuted for the murder of the thief.

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