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Report No. 42

4.71. Section 106.-

Section 106 saves from liability harm caused to an innocent person. It permits a person acting in self-defence to "run the risk" of causing such harm, where the self-defence is against an assault causing a reasonable apprehension of death. We considered a suggestion that the provision of the section should be extended to assaults causing a reasonable apprehension of grievous hurt. And in support of the suggestion, it was pointed out that we have reommended1 the enlargement of section 94 to include serious bodily harm. It was urged, that section 94 related to compulsion by human agency, whereas section 106 related to compulsion by circumstances, and that the same principle should apply to both the sections.

It appears to us, however, that the legislature has, as a matter of policy, expected that where the harm apprehended is less than death, then the person exercising the right of self-defence should take reasonable care to avoid serious harm to an innocent person. Moreover, there is sufficient protection even now, because if the person acting in the circumstances mentioned in section 106 uses due care and caution, then he would also be able to take the aid of section 80 also.

No change is, therefore, recommended.

1. See recommendation relation to section 94.

4.72. Sections 97 and 100 to 10.-considered and revised.-

In the light of the above discussion we propose that section 97 be omitted and sections 100 to 106 be replaced by four sections as follows:

100. Right of private defence of the body.- (1) Every person has a right to defend his own body and the body of any other person against any offence affecting the human body.

(2) If the offence which occasions the exercise of the said right i.-

(a) such an assault as may reasonably cause an apprehension that death or grievous hurt will otherwise be the consequence of the assault, or

(b) an assault with the intention of committing rape or carnal intercourse against the order of nature, or

(c) an assault with the intention of kidnapping, or

(d) an assault in such circumstances as may reasonably cause an apprehension that an offence punishable under any of the sections 364 to 369 of this Code is being committed, or

(e) an assault with the intention of wrongfully confining a person in such circumstances as may reasonably cause him an apprehension that it will not be possible to have recourse to the public authorities for his release, the right of private defence of the body extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant, and, in any other case, it extends, under the same restrictions, to the voluntary causing to the assailant of any harm other than death.

(3) If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be 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.

101. Commencement and continuance of right of private defence of body.- The right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehensions of danger to the body continues.

102. Right of private defence of property.- (1) Every person has a right to defend the property, whether movable or immovable, of himself or of any other person against any offence which is or includes robbery, theft, mischief or criminal trespass and any attempt to commit any such offence.

(2) If the offence the committing of which, or attempting to commit which, occasions the exercise of the said right is or include.-

(a) robbery, or

(b) theft, mischief or criminal trespass in such circumstances as may reasonably cause an apprehension that death or grievous hurt will be the consequence if the right of private defence is not exercised, or

(c) mischief by fire or explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place of worship or as a place for the custody of property, or on any vehicle, the right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, and in any other case, it extends, under the same restrictions, to the voluntary causing to the wrong-doer of any harm other than death.

103. Commencement and continuance of right of private defence of property.- The right of private defence of property commences when a reasonable apprehension of danger to the property commences, and it continue.-

(a) against robbery, as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant wrongful restraint continues;

(b) against theft.-till the offender has effected this retreat with the property, or, if the property has been recovered earlier or the assistance of the public authorities has been obtained earlier, till such recovery of the property or the obtaining of such assistance; and

(c) against mischief or criminal trespass, as long as the offender continues in the commission of mischief or criminal trespass.



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