Criminal Law provides for plethora of definitions, not only of offences but also of Defences. In criminal cases, the proceedings are always initiated by the prosecution, and the opposing party against whom the case is filed is called the defendant. During the hearing, the advocate from the prosecution side presents allegations against the accused, while the defendant’s advocate tries to defend against those allegations and prove that the accusations made by the prosecution are baseless.

Black’s law dictionary defines self-defense as the use of force to protect oneself, one’s own family or one’s property from a real or threatened attack. Generally, a person is justified in using a reasonable amount of force in self-defense if he or she believes that the danger of bodily harm is imminent and that force is necessary to avoid this danger.

LAWS ON SELF-DEFENCE : NEPAL

Justifiable defence is the act of accused which is justifiable by the law.

As in the context of Nepal, the defendant must be able to prove that the act of defense falls under the purview of section 24 of the National Criminal Code, 2074.

As mentioned under the National Criminal Code, 2074.

U/s. 24 :  Act in Self-Defense not to be considered as an offence:

Everyone has a right to defend against a harm caused to one’s body, life and property. However, the right of private defense shall be considered when there is a reasonable cause to believe that the body, life or property of his or her own or of any other person cannot be defended against any illegal harm unless any act is done immediately.

Further, U/s. 25, Right of Private Defence isn’t available in the following circumstances :

1. If there is possibility of getting aid or protection from public authority immediately to defend the body or property while causing harm,
2. Harm caused by Self-provocation,
3. Where a public servant does an act in good faith in pursuance to the order of a court,
4. Where a public servant does an act in good faith in pursuance of his official power ,
5. Where any act is done by a person in pursuance of a direction given in good faith by a public servant in the exercise of his or her official power.

However, a Person shall not be deprived of his Right of Private defense in following conditions :

1. Where the person or defender does not know the doer of the act was a Public Servant,
2. Where there is no reasonable reason to believe that the doer of the act is a public servant &
3. Where there is no reasonable reason to know that the doer of the act was given direction by the public servant or state.

However, U/s. 26 : No right to cause death in the name of Self-defence. However, it cannot be said to be considered as an offence, if resulted in death if it satisfies below mentioned conditions  :

1. Where there is a reasonable reason to believe that an assault on oneself is likely to cause death or serious injury or grievous hurt to oneself or another person ;
2. If the assault is done by the victim having an intention of committing rape or after the commission of rape ;
3. Kidnapping and hostage-kidnapping with an intention of causing death.
4.  Where attempt is made to cause mischief by seizing, using a deadly weapon, setting fire to or using explosive substance on, any building, tent which is used for human dwelling or as the place for worship or pray or the custody of property or a means of transport ; 
5. To defend against a robbery &
6. Where it requires instant retaliation by a security personnel deputed by the order of competent authority.

Further, In GON v. Radhika shrestha [1], The court established the concept of Battered women syndrome where the defendant was accused of killing of her husband. Later, it was found that her Husband used to use physical aggression, torture her from many years. Since a long time,the Husband used to come home drunk. use abusive words , accuse her for being a witch and even assault his wife. However, the defendant compromised for about 2 /3yrs, however, on the date of incident both the parties were drunk and while their conversation turned int  a massive argument they chose to settle the same, furthermore, the defendant had made deceased’s bed as she asked him to sleep. While the deceased was sleeping she threw petrol on her husband and locked him from the inside causing his body to be burned on fire. On this Particular case, the District court held that the defendant was liable under मुलुकी ऐन, ज्यानसम्बन्धीको महलको १३(३) नं. बमोजिम सर्वस्वसहित जन्मकैद Further-on, the Appeallate court accepted the same verdict given by the District Court. Nonetheless, the Supreme Court had held that the defendant would be liable for 10yrs imprisonment and would not be liable under attachment of property as she was a battered women and she had to take care of two of her kids. (DEFENCE UNDER INSANITY)

---

[1] D.no.9242, ०६९-CS-०८८१

In the case of  Menendez v. Superior Court[1],   Two Brothers killed both their parents and drove up to Mulholland Drive to dump their guns. They also bought a movie ticket as an alibi. After, returning home, they called 911 and informed them that their parents were shot death. This case became a National sensation where the new television network, court TV broadcast trail in 1993. Initially, both the brothers werenot suspected of murdering their parents, however, the brothers confessed their crime to the psychotherapist. All the footage of them confessing the crime was tapped. In march 1990, lyle 22, and Erik 19, were arrested. While the trial was going on in 1993, the brothers described years of sexual abuse by Jose and kitty Menendez and plea the defence under self-defense stating that their parents were sexually abusing them and Jose would have killed them, if not. However, the court didn’t give them the defence of self defence and help that they would be liable to sentenced to life in prison without the possibility of parole.

---

[1] Menendez v. Superior Court, 3 Cal. 4th 435, 834 P.2d 786, 11 Cal. Rptr. 2d 92, 1992 Cal. LEXIS 3970, 92 Cal. Daily Op. Service 7390, 92 Daily Journal DAR 11946 (Cal. Aug. 27, 1992)

Further, following Justifiable defences is explained under this chapter :

1. Self-Defence
2. Consent
3. Necessity
4. Duress

SELF-DEFENCE

According to the Black’s Law Dictionary states that there must be two elements necessary to constitute self-defence :

1. The defender didn’t provoke difficulty
2. Harm being caused without convenient or reasonable mode of escape

As per Glanville Williams[1] the elements is more comprehensive:

1. Force is threatened against the person,
2. Person threatened isn't the aggressor &
3. Danger of harm is imminent.

Case laws :

1.  Dhana Bahadur Rai V HMG[1]

The court stated that in order to establish the defense principle, the defendant must not initiate the action of a crime.

II.  HMG V Dhanamaya Chhetrini [2]

In this case, Dhanamaya killed her own son accusing him for raping her. The court provided her defense of chastity and right to retaliation as mentioned u/c. on Rape section 8, Muluki Ain 2020.

Four elements of Self-Defence

1. Imminent Threat
2. Unlawful aggression
3. Reasonable Fear
4. Proportional Force

Explaination :-

1. Imminent Threat :  Further, Inorder to establish the self- defence on Imminent threat or defence of others, there must be an imminent threat to which the defendant didn’t have any option except to defend in the action. The defendant in such a scenario can use force or an actual show of force. However, the defense of self-defense is available on when the threat is on going. If the defendant is found to be using of a threat after the threat has ended, the use of force is no longer appropriated. The threat can even be verbal, as long as it puts the victim in an immediate fear of physical harm. However, offensive language without the threat of physical harm won’t be justifiable under the defense of self defense.
2. Unlawful Aggression :  Further, Inorder to establish defence on unlawful aggression the Supreme court of Manila, Philippines in  PEOPLE OF THE PHILIPPINES v. RODOLFO ADVINCULA Y MONDANO, held unlawful aggression to be of two kinds:
   i. actual or material unlawful aggression; and
   ii. imminent unlawful aggression
   To which, the court further dictated  Material or actual unlawful aggression means an attack with physical force or with the help of a weapon, where the intention of an attack is to harm or commit an injury. Suppose for an example, an act of hitting another person with a big heavy stone with an intention of causing grievous hurt and Imminent unlawful aggression means an attack that is impending or at the point of happening, where neither any damage is done yet nor the intention is imaginary. For example : the act of pointing of a revolver at another with an intention to shoot.
   The court further held that inorder to plea for defense against unlawful aggression an accused must establish the concurrence of three elements :
   Physical attack or material attack or an assault
   Must be actual, not imaginary,
   Unlawful attack. 
3. Reasonable Fear : Inorder to seek for defense of Reasonable fear, the accused must prove that the defendant act with force was reasonable. For example, if the defendant gave a man a toy gun and responded by assaulting or harming. If a “reasonable man” would have believed that the toy gun was a real threat and have responded with fear as we, the defendant’s actions will likely to be considered self-defense.  However, there are two types of defenses. i.e, Perfect Defense – for which the accused plea for a defence and the court after examining and looking into the facts gives his full defence, i.e, no punishment is set on the accused. Imperfect Defense – for which defendant plea for right under self-defense but if the defendant’s argument is unable to meet the reasonable person standard, but the defendant truly did fear a threat of harm, in such a case, court might not provide perfect defense however, the court may lesser the punishment levied upon the accused. At times, a person can have an imminent fear which could not be reasonable from a layman’s point of view. In such a case, if a person uses a force, violence to defend himself, the situation is known as Imperfect self-defense.
4. Proportional force – Whenever a person notices an unlawful aggression towards him/her, that person should respond to the threat with the exact level of force that is put in by the attack.  If the attacker implies minor force, the defendant can’t revert back to that force with deadly force. However, if a deadly force is put in by the attacker on the defendant then only the defendant is allowed to put in deadly force as a defense. For an example, a person can’t shoot an attacker(pick-pocketer) if the attacker threatens to hit him with a stick. Similarly, if a threat is induced in rape, the attack can use deadliest force as a means of defense.

---

[1] NKP 2072, 9298

[2] NKP 2031, 123

---

[1] http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-for-right-of-private-defence-for-citizens/.

Lastly, to summarize this blog, there are two types of defences in general. I.e, Excusable Defences and Justifiable Defences. Excusable Defences are those acts for which one can be excused from Criminal Liability. Only in some cases will an accused not be liable for the offence committed by him. An accused would not be liable if, at the time of commission of the act he lacks Mens Rea. Certain exceptions to this defence is mistake of fact, accident, infancy, insanity and intoxication. Further, under Justifiable defence, the act of accused is justified under the law. However, in normal circumstances such acts are classified as an offence but in special circumstances they are accepted as tolerable and non-punishable. The exceptions under Justifiable defence as previously discussed are private defence, defence of duress, consent, necessity, communication, trifles. Need less to say, this Article only talks about Self-defence as an element of Self-defence. The content in this blog is only for educational purpose. Kindly refer, acts, codes and caselaws for better understanding.