Rakesh Dutt Sharma vs State of Uttarakhand - IPC:BNS - Right To Private Defence

Indian Penal Code 1860 - Section 96-106 : Bharatiya Nyaya Sanhita - Section 34-44 - When an attack is sought to be made on the accused by a person, who goes to the place of the accused, armed with a pistol and thereafter, shoots him on his head causing injury, there is no way the accused person would apply his rational mind in exercising his right of private defence- The right of private defence cannot be brushed aside and cannot be weighed in a golden scale. In such a case, the approach of the Court shall not be pedantic. It should be seen from the point of view of a common and reasonable person- Principles Quoted from Darshan Singh vs. State of Punjab (2010) 2 SCC 333: (i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. (Para 6-7)

Referred Judgment: