This section is a corollary of section 103. It says that where the offence of theft, mischief or criminal trespass has been committed or attempted but the description are different from those enumerated in section 103 of the Code; the right of private defence of property extends only up to the extent to voluntary causing of any other harm than death.
The relationship of this section with section 103, both dealing with defence of property, is similar in nature to that of section 101 with section 100 of the Code, both dealing with defence of body. Here also the section specifically states that the restrictions mentioned under section 99 of the Code shall have an overriding influence on this right. The expression ‘voluntary causing’ has same meaning as ‘voluntarily’ defined under section 39 of the Code.
In V. C. Cheriyan v. State; the three deceased persons along with some other persons had illegally laid a road through the private property of a Church. A criminal case was pending in the Court against them. The three accused persons belonging to the church put up barricades across this road with a view to close it down.
The three deceased who started removing these barricades were stabbed to death by the accused. The Kerala High Court agreed that the church people had the right of private defence but not to the extent of causing death of unarmed deceased person whose conduct did not fall under section 103 of the Code.
Where the victim was going on a pathway which went through a private field and on being challenged by the armed accused owner and others begged sorry for his mistake and promised never to repeat the same, but even then he was severely beaten resulting in fracture of arm, it was held that section 104 did not apply and the accused were guilty.
Where the appellant had cultivated land leased to him and had not surrendered its possession at any time but the crop was being harvested by the prosecution party not armed with deadly weapons, the appellant did have a right of private defence but not up to the extent of causing death of a person since his right was limited by virtue of section 104 of the Code.