RIGHT OF PRIVATE DEFENSE IN CASE OF SUSPICION OF RAPE

A fake message that has gone viral in the social media misinforms the public about the rights of a girl, suspected to be raped or getting raped. The message propagates that the law allows the victim to kill or harm the offendor, for which she will not be held guilty by virtue of Section 233 of the Indian Penal Code (IPC) 1860. The message that is being circulated is as follows and is being reproduced so that the public is not misinformed about its rights. The message reads as follows:

“Finally a new law passed by *MODI JI Govt* today. As per _Indian Penal Code_ 233. If a girl is suspected to be raped or getting raped, then she has the supreme right to *kill* the man, or *harm* that person as dangerously and girl won’t be blamed for *murder*”

This article is written in the interest of general public and clarifies that no such new anti-rape law has been enacted by the Government of India. The IPC 1860 has already provided that a person may, in the exercise of his/her right of private defense, voluntarily cause death or any other harm to an offendor, who commits any of the offences listed under Section 100 IPC:

1. assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
2. assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
3. assault with the intention of committing rape;
4. assault with the intention of gratifying unnatural lust;
5. assault with the intention of kidnapping or abduction;
6. assault with the intention of wrongful confinement, which may reasonably cause the victim to apprehend that he/she will be unable to have recourse to the public authorities for his/her release.

The Supreme Court has held that in the case of private defense, the onus of proof shifts between the accused, to establish his plea of private defense and the prosecution, to establish every ingredient of the offence with which the accused has been charged, beyond reasonable doubt. It has also held that while judging the nature of apprehension which the accused can reasonably entertain in such circumstances requiring him to act on the spur of moment, the court has to take into consideration the subjective point of view of the accused and the normal course of human conduct as to how would a person react under such circumstances in a sudden manner with an instinct of self-preservation.

Daliparthy Harini

Legal Associate