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“General Exceptions”
Prof. Santosh D. Bhosale
FACTORS NEGATIVATING GUILTY INTENTION
(..6..)
GENERAL EXCEPTIONS (DEFENCES)
(Ss. 76 to 106)
QUESTION BANK
Q.1. Discuss the various defenses available to an accused person under the
provisions of I.P.C.
Q.2. What are the general exceptions provided under I.P.C.
SYNOPSIS
I]
Introduction
II]
Classification of offences under IPC
A)
B)
Excusable Acts
Justifiable Acts
III] Burden of Proof
I] INTRODUCTION:-
Every person who violates the criminal law is subject to punishment.
However, this rule has some exceptions. For example, a man may be excused from
punishment, either on the grounds of absence of the requisite mens rea or on some
other grounds recognised by the law. Such provisions of exception are dealt with
in Chapter IV of the Indian Penal Code, from Ss.76 to 106.
These provisions are ‘general’ in that they apply to every definition, penal
provision and illustration throughout this code (S.6). Therefore, all the general
exceptions are put in a single chapter instead of repeating them in connection with
each offence. These general exceptions do not apply only to the offences under
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I.P.C. but also to the offences under the Special or Local laws, e.g. Food
Adulteration Act, Anti-Corruption Act, etc.
II]
CLASSIFICATION OF OFFENCES UNDER I.P.C.:-
These provisions relating to ‘general exceptions’ may be classified into two
classes of exceptions, viz (namely) excusable and justifiable exceptions.
Inexcusable exceptions (or defences) there is a lack of mens rea on the part of the
person committing the offence, e.g. mistake of fact, accident, insanity, etc. When
any act falls under excusable exceptions, it is no offence at all. Whereas in
‘justifiable’ exceptions, the law provides justifications for the acts committed in
particular circumstances, e.g. judicial act, necessity, consent, etc. These acts are
otherwise offences if not justified by law.
Thus, if taking the goods of others with the consent of that person is no
offence, taking them without consent is an offence.
Thus, general exceptions can be classified as follows: -
A)
Excusable Acts: -
1)
2)
Mistake of Fact (Ss. 76 and 79).
Incapacity to do an act.
Infant/Infantacy (Ss.82,83)
Insanity (S.84).
a)
b)
c)
Intoxication (Ss. 85, 86).
B)
Justifiable Acts: -
1)
Judicial act.
a)
b)
Act of Judge (S.77).
Act done in pursuance of an
order of a court (Sec.78)
Necessity. (S.81).
Duress (S. 94).
2)
3)
4)
Consent: -
a)
b)
With consent (Ss. 87 - 89).
Without consent (S. 92).
5)
Communication made in good faith(S.93)
Act causing slight harm (S. 95).
6)
7)
Right of private defence (Ss. 96 to 106).
III] BURDEN OF PROOF:-
The burden of proof means the obligation to prove the truth or falsehood of
a fact or proposition. In criminal matters, the prosecution (State) has to prove the
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existence of all facts necessary to constitute the offence charged beyond all
reasonable doubt. If there is reasonable doubt regarding the guilt of the person
charged with a crime (i.e. accused), the benefit of it is to be given to the accused.
In criminal cases, the burden of proof rests upon the prosecution to prove actus
reus and mens rea.
However, the burden of proving the exemptions (above mentioned) is on
the person (i.e. accused) who wants to bring his case within any of the above-
mentioned exceptions. In other words, the accused has to prove the exception.
(..a..)
MISTAKE OF FACT
QUESTION BANK
Q.1. “An act done by reason of mistake of fact and not by mistake of law in good
faith believing himself to be justified by law is a good defence to a charge
of crime” critically examine above statement with reference to case law.
Q.2. “Ignorentia faciit doth excusat, Ignorentia juris non excusat.” Discuss this
maxim in the light of leading cases.
SHORT NOTES
1. Mistake of Fact
2. Mistake of Law.
3. Mistake of fact and mistake of law
SYNOPSIS
I]
Introduction
II]
A)
Mistake of Fact under I. P. C.
Act done by a person bound or by mistake of fact believes himself to be
bound by law.
B)
Act done by a person justified, or believing himself justified by the law
1)
2)
Justified by law.
Distinction between Ss. 76 to 79
I]
INTRODUCTION:-
The Common Law principle, ‘Ignorentia facti doth excusat and Ignorentia
juris not execusat’ (ignorance of fact is an excuse and ignorance of law is no
excuse), have been embodied in Ss. 76 to 79 of the I.P.C. This excuse is based on
the principle that a man who is mistaken about the existence of a fact can not form
the necessary intention required to constitute the offence and is, therefore, not
responsible in law for his deeds.
II]
MISTAKE OF FACT UNDER I.P.C.
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A)
Act done by a person bound or by mistake of fact believing himself
bound by law (S.76):-
Nothing is an offence which is done by a person who is, or who, by reason
of a mistake of fact and not by reason of a mistake of law in good faith, believes
himself to be bound by law to do it.
Illustration
i) A, a soldier, fires on a mob by the order of his superior officer in conformity
with the comments of the law. A has committed no offence.
ii) A, an officer of a court of justice, was ordered by that court to arrest Y, and
after due enquiry, believing Z to be Y, arrests Z, A has committed no offence.
This section excuses a person who has done what, by law, is an offence but
is done under a misconception (ignorance) of facts, leading him to believe in good
faith that he was commanded by law to do it. This section is of special importance
in regard to the military and police acting under their officer’s command and in
respect of private persons assisting the police.
1)
Mistake of fact: -
Mistake (or ignorance) of fact is an excuse. It is because no mens rea exists
to constitute a particular offence, though actus reus is there. Mistakes also have a
recognised place in civil law. Such a mistake may be caused due to forgetfulness,
ignorance, imperfect information, negligence, stupidity or superstition, but it must
not be due to design, pre-arrangement, etc.
Facts: - A Police Officer, on the order of the Deputy Commissioner, fired
on a mob, which had become violent, thereby killing two persons. They were
convicted for causing the murder of two innocent persons by the Session’s judge.
Supreme Court Held: - that the police were protected under S.76 since
they were bound to protect law and order.
Mistake of fact is no defence in the following two cases viz (namely): -
1 AIR 1981 SC 1917
In
R
V. Tolson ((1889) Q.B.D. 168.)
Facts: - Mrs. Tolson married Mr. Tolson in September 1880. He deserted her in December 1881. Later,
on information and enquiries, she and her father came to conclusion in good faith that her husband was
lost in ship that sunk with all its holds on board. On the belief that he was dead, she went through ceremony
of marriage with another man in January 1887, before seven years elapsed. In fact Tolson was not dead
and he returned from America in Dec.1887, and a woman was prosecuted for bigamy.
Held: - a bonafide belief on reasonable grounds in the death of husband (mistake of fact) at the time
of the second marriage was a good defence. Therefore Mrs. Tolson was not held guilty.
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When the responsible inquiry would have elicited the true fact
2) When there is strict liability imposed by the statute.
Mistake of Law: -
Mistake or ignorance of the law is no defence. The term ‘law’ means the
Prof. Santosh D. Bhosale
1)
2)
general law of the land, as well as bylaws, rules and regulations having the force
of law. Ignorance of the law is no defence to the native or foreigner who commits
the crime, although it may be the ground for mitigation of sentence (punishment).
Ignorance of the law is no defence because every man is presumed to know the
law of the land. If ignorance of the law is allowed as a defence, it may screen the
offenders and lead to endless complications; it may lead to uncertainty in the
administration of the justice system. Another reason for ignorance of law not being
a defence is that laws are generally based on fairness and common sense.
Facts: - A sailor was charged with an offence that the British Parliament
had just forbidden. But the passing of such a law could not possibly be known to
him since he was far away at sea, and the offence was committed before the news
of its enactment could reach him. He took the defence of ignorance of the law.
Held: The court convicted him for that offence, rejecting ignorance of the
law as a defence.
3)
In good faith, believes himself to be bound by law: -
To get the benefit of S.76, an accused has to prove that in good faith, he
believed himself to be bound by law to do that act. Thus, a soldier or policeman
acting under the command of his superior is not liable for consequences that occur
thereby.
B)
Act is done by a person justified or by mistake of fact believing himself
to be justified by the law (S.79):-
Another case in which a person under a mistake of fact can be excused is
mentioned in S. 79. It provides that nothing is an offence if done by a person who,
in good faith, believes himself to be justified by law in doing that act.
Illustration
‘A’ sees ‘Z’ and commits what appears to ‘A ‘to be a murder of ‘B’. ‘A’, in
2 1800. In State of Maharashtra V/s. Mayer Hans George (AIR 1965 SC. 722,)
Facts: - The accused was charged for violation of foreign exchange regulation Act 1947, by bringing
more gold than permitted. This ceiling limit was just imposed by the Reserve Bank by notification.
Accused pleaded defence of ignorance of that notification.
Court Held: - Ignorance of law is no defence, since notification is also law.
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exercise to the best of his judgement, exerted in good faith of the power (which
the law gives to all persons apprehending murders in the act), seizes Z in order to
bring Z before the police authorities. A has committed no offence, though it may
turn out that Z was acting in self-defence against ‘B’.
In Waryam Singh V/s Emperor
Facts:- An accused killed a man at night with several blows from a stick. At
the time of the attack, he believed in good faith that the object of his assault was
not a human being but a ghost or some other object than a living human being.
Held: - that the accused was acting under a mistake of fact as stated in S.79.
Therefore, he was acquitted.
1)
Justified by law:-
When the law justifies a person in doing an act, the commission of that act
does not amount to an offence.
Thus, a person is entitled to cut off those portions of a tree growing on his
neighbour’s land, which overhangs his land, as he is justified by the law in doing
such an act. It does not, by virtue of this section, amount to an offence of mischief
punishable under S.427
2)
Distinction between S. 76 and S. 79:-
The distinction between S. 76 and S. 79 is that, in S.76, a person is assumed
to be bound, and in S.79, to be justified. In other words, the distinction is between
a real (S.76) or supposed (S.79) legal obligation and a real or supposed legal
justification for doing the particular act. Under both sections, there is a bonafide
intention to advance the law; therefore, both sections are identical. S.76 protects
military and police, acting under their officer's commands and private persons
assisting to assist the police, but S.79 is meant to protect civilians who assume
themselves ‘justified by law’ in doing the State’s act (the act which is supposed to
be carried out by the state)
(..b..)
JUDICIAL ACTS
(Ss.77 to 78)
S. 77 and S. 78 grant immunity from criminal prosecution to judges and to
those who carry out their orders.
These sections provide that nothing is an offence which is done-
1) by a judge when acting judicially in the exercise of any power which is,
or which he is in good faith believes to be, given to him by the law.
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2) in pursuant to the judgement or order of the court of justice, while such
judgement or order remains in force, and the person doing the act, in good
faith, believes that the court has jurisdiction although it has not (S.78).
(..c..)
ACCIDENT (S.80): -
S 80 provides that nothing is an offence which is done by accident or
misfortune-
1)
2)
Without criminal intention or knowledge.
In the doing of a lawful act-
i)
In a lawful manner.
By lawful means, and
With proper care and caution.
Illustration: -
ii)
iii)
A is at work with a hatchet; the head flies off and kills a man. Here, if there was
no want of proper caution on the part of A, his act is excusable and not an offence.
In State of Orissa V/s Khoraghsi
Facts: - The accused was a tribal. He went into the forest to hunt the
animals. He shot an arrow with a bonafide intention that aimed at an animal. But
the arrow caused the death of a human being.
Held: - Court acquitted accused under S.80.
(..d..)
NECESSITY (S.81)
(Act done to avoid greater harm)
QUESTION BANK
Q.1. “Necessity knows no law” critically examine the provisions relating to
necessity as a defense to a criminal charge under the penal code.
SHORT NOTES
1.
Necessity
SYNOPSIS
I] Introduction
II] Act done to avoid other harm. (Necessity) (S.81).
I]
INTRODUCTION:-
By necessity means a situation where conduct prompts some value higher
than the literal compliance with the law. According to Oliver Goldsmith, smaller
evil is allowed to procure a greater good in all human institutions. A necessity in
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legal context involves the judgment that the evil of obeying the letter of the law is
socially greater than the evil of breaking the law.
Thus, wherever necessity forces a man to do an illegal act, forces him to do
it justifies him because no person can be guilty of a crime without the will and
intention. This is explained in the famous maxim “Necessities non habit legem”
(i.e. Necessity knows no law).
II]
ACT DONE TO AVOID OTHER HARM (NECESSITY) (S. 81):-
An act done with the knowledge that it is likely to cause harm but done in
good faith and without any criminal intention to cause harm to prevent or avoid
other (greater) harm to a person or property is not an offence.
Explanation: -
It is the question of fact in such a case as to whether the harm was of such
a nature and so imminent to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.
Illustrations
a)
A, the captain of a steam vessel, suddenly and without any fault or
negligence on his part, finds himself in such a position that before he can stop his
vessel, he must inevitably run down (hit) a boat B, with twenty or thirty passengers
on board, unless he changes the course of his vessel, and that by changing his
course, he must incur risk of running down (hitting) a boat C with only two
passengers on board, which he may possibly clear. Here, if A alters his course
without any intention to run down boat C and in good faith for the purpose of
avoiding danger to the passengers in boat B, he is not guilty of an offence.
However, he may run down boat C by doing an act which he knew was likely to
cause that effect if it is found as a matter of fact, that the danger which he intended
to avoid was such as to excuse him in incurring the risk of running down the boat
C.
b)
in a great fire, A pulls down houses to prevent the conflagration from
spreading. He does this with the intention of saving human life and property in
good faith here. If it is found that the harm to be prevented was of such a nature
and so imminent as to excuse A’s act, A is not guilty of the offence.
Thus, S. 81 stresses three conditions to claim exemption from criminal
responsibility, viz-
i)
likely to cause harm, and,
ii) The act must
The harm to be avoided must be such as to justify risk of doing an act
have
been
committed
in
good
faith
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without any criminal intention to cause harm.
The doctrine of necessity stated under S.81 is based on the principle that
when, in a sudden and extreme emergency, one or the other of two evils is
inevitable, it is lawful to direct events that the smaller only shall occur.
Facts: - The accused Dudley, Stephens one Brooks, all able-bodied
English Seamen and the deceased, also an English boy of 18 years of age, was
compelled to put into a small boat after a shipwreck on the high seas. In this small
boat, they had no supply of water and food. They remained without food and water
for three days. On the fourth day, they caught a small turtle upon which they
subsisted for a few days, and this was the only food they had up to the eighth day;
Dudley and Stephens killed the boy and fed flesh and blood to survive for four
days. On that day, the boat was rescued by a passing vessel.
They were prosecuted for the murder. However, the accused pleaded that
they acted out of necessity to preserve their lives. They further argued that if they
had not fed upon the boy's body, then they would probably not have survived to
be so rescued but would have died of famine within the four days.
Held: - The deliberate killing of an unoffending and unresisting man
(boy), however great the temptation, cannot be justified by necessity.
Facts: The drunk created a public nuisance and grave danger. The village
Magistrate arrested him. The accused filed a complaint against the Magistrate for
wrongful confinement.
Court Held: - that the Magistrate's act of arresting drunks was a necessity.
(..e..)
ACT OF A CHILD
3 (1884) 14 QBD 273
In United States V/s. Holmes (1842)
Facts: - It is an American, case, wherein an American Vessel was while sinking after hitting to an
iceberg. The crew and some of the passengers managed to get away in long boat. The accused Holmes
was one of the occupants of such long boat. The long boat also leaked. Therefore, to lighten the boat.
An accused Holmes and crew threw fourteen men and two women over board. None of the crew was
thrown over board. They were subsequently rescued and charged for manslaughter.
Court Held: - In such dire situation lots (lottery) is the law of ocean. So accused should have prepared
lots (i.e. selection by lottery) instead of throwing indiscriminately. Therefore accused were convicted,
for manslaughter.
4 (1922) Mad 605.
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(Ss. 82, 83)
QUESTION BANK
Q.1. How far minority a good ground of defence?
SYNOPSIS
1) Absolute immunity to a child below 7 years (S.82)
2) Qualified immunity to a child above 7 and below 12 years of age (S. 83)
3) No immunity to a child above 12 years.
S. 82 and 83 give protection to a child under a particular age from criminal
prosecution and punishment.
1)
ABSOLUTE IMMUNITY TO A CHILD BELOW 7 YEARS (S. 82)
S. 82 grants absolute immunity to a child below seven years of age. Such
immunity is granted to a child below seven years on the ground that such a child
is doli incapax, i.e. incapable of doing a criminal act. It is because a child under
such an age group cannot form the necessary intention to commit a crime.
2)
QUALIFIED IMMUNITY TO A CHILD ABOVE SEVEN AND
BELOW 12 YEARS OF AGE (S. 83)
S. 83, however, provides qualified immunity to a child above seven years
of age and below twelve years of age. It provides that nothing is an offence done
by a child above seven years of age and under twelve who has not attained
sufficient understanding to judge the nature and consequences of his conduct on
that occasion.
Thus, if it is shown that the child has not attained the requisite degree of
understanding to judge the nature and consequence of his conduct, he is exempted
from criminal liability; in the absence of such proof, the child above 7 years of
age but below twelve years is as much liable for his criminal act as an adult. For
example, if the child of 9 years picks up a necklace from his friend's house and
immediately sells it for half the price, this act shows that he was sufficiently
mature to understand the nature and consequence of his deed. Therefore, his act
would amount to theft.
However, the age of immunity and maturity differs from country to country.
In Malaysia and England, the age of complete immunity is ten years, and children
above ten and below 14 enjoy qualified immunity; in the U.S.A., the age of
absolute immunity varies from state to state, between eight and twelve.
5 AIR 1977 SC. 2236
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Facts: - Hiralal Mallick, a twelve-year-old lad, with his two elder brothers,
was charged with the offence of murder. Though he was twelve years old, he
wielded a sword, striking the neck of the deceased to take revenge and ran away
from the spot like his brothers.
Held: - Hiralal's conduct shows sufficient maturity to judge the nature and
consequences of his act. Therefore, his conviction was upheld.
3)
NO IMMUNITY TO A CHILD ABOVE 12 YEARS
However, a child above twelve years of age is liable for a crime. There is
no immunity in favour of him. The provisions under this section are subject to the
Juvenile Justice (Protection and Welfare) Act. 2000.
(.. f ..)
UNSOUNDNESS OF MIND
(S. 84)
QUESTION BANK
Q.1. Unsoundness of Mind is good ground of defence.
Q.2. Discuss ‘Insanity’ as a defence in a criminal trial.
Q.3. Discuss fully the provisions regarding ‘mental incapacity’ as a factor
negativating guilty intention.
Q.4 How far “Insanity” is good ground of defence?
SHORT NOTES
1.
Legal and medical insanity.
SYNOPSIS
I] Introduction.
II] Act of a person of unsound mind (S.84)
III] Medical and legal insanity.
IV] Tests of insanity.
I]
INTRODUCTION
Unsoundness of mind or insanity is a complete defence against a
criminal charge. It is because of the assumption that one who is insane has no mind
and hence cannot have the necessary mens rea to constitute that offence.
Therefore, such a person is even more protected than a child. Moreover, the object
of punishment to reform a criminal does not serve in the case of an insane person
since he cannot understand the object of punishment inflicted on him.
II]
ACT OF PERSON OF UNSOUND MIND (S.84)
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S. 84 provides that nothing is an offence which is done by a person who, at
the time of doing it, by reason of unsoundness of mind, is incapable of knowing
the nature of the act or that he is doing what is either wrong or contrary to the law.
Under this section, the word ‘unsoundness of mind’ is deliberately used because,
according to Huda, it is a more comprehensive term than insanity.
Ingredients:
-
A criminal act of a person is exempted from punishment if it is shown -
1)
2)
that the accused was of unsound mind.
that he was of unsound mind at the very time of his doing
the offence and not merely before or after the act and
that as a result of unsoundness of mind, he was incapable of
knowing the nature of the act or what he was doing was either
wrong or contrary to law.
3)
However, if such a person becomes worse and attacks another person, he
may be detained and kept in a mental hospital for care but not in jail.
III] MEDICAL AND LEGAL INSANITY
Insanity, according to medical science, is a disease of the mind that impairs
the mental faculties of a man.
It includes idiocy, madness, lunacy, mental derangement, mental disorder,
abnormality, even an uncontrollable impulse driving a man to kill others and every
other form of mental abnormality known to medical science.
However, the insanity or unsoundness of mind implicit in law under this
topic is very restricted. In law, insanity means a disease of the mind that impairs
a cognitive faculty (i.e. reasoning capacity) of a man to such an extent as to render
him incapable of understanding the nature and consequences of his act. It is only
of particular and appropriate kind of insanity which is regarded as insanity in law
and is excusable.
In Surendra Mishra V/s State of Jharkhand (A.I.R. 2011 S.C. (Cri) 254)
Supreme Court ruled that even though the term “unsoundness of mind” is
not defined in I.P.C., it has an equivalent meaning to ‘insanity’. An accused
seeking acquittal under insanity should prove legal insanity, not medical insanity.
IV] TESTS OF INSANITY
As discussed earlier, there are various degrees of insanity known to medical
scientists or psychiatrists; however, the law does not recognise all sorts of insanity.
Legal insanity, as contemplated under S. 84, is that unsoundness of mind in which
a person completely loses his cognitive faculties and is incapable of knowing the
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nature of his act or that what he was doing was wrong or contrary to law.
Therefore, the important question in many cases that come before the court is how
the difference between medical and legal insanity can be made as an excuse. There
are a number of tests laid down to answer this question. However, the most notable
among them is the ‘right and wrong’ test laid down in M. Naughten’s case.
Facts: - The accused, Mac Naughten, was charged with the murder of Mr
Drummond (Secretary to the Prime Minister, Sir Robert Peel) by shooting him in
the back as he was walking up. An accused was suffering from the insane delusion
that Sir Robert Peel (The Prime Minister) had injured him. He mistook Mr
Drummond for Sir. Robert and shot and killed him. The accused pleaded not guilty
on the grounds of insanity caused by certain morbid delusions.
Held: The accused was acquitted on the grounds of insanity. This
judgement created a sensation in England. Therefore, to clarify the law on this
subject, fifteen judges of the House of Lords laid down some principles. Viz.
Rules of Presumption: -
1) Every man is to be presumed sane and to possess a sufficient degree of
reason to be responsible for his crime until the contrary is proved.
2) To establish a Defence on the ground of insanity, it must clearly be proved
that, at the time of committing the act, the party accused was labouring
under such a defect of reason from disease of the mind as not to know the
nature and quality of the act he was doing or not to know what he was doing
was wrong.
3) But if the accused was conscious that the act was one which he ought not to
do and if the act was at the same time contrary to the
law of the land, he
is to be punished. Thus, the test is released with the power of distinguishing
between right and wrong.
Mac Naughten’s Case principles are formulated under S.84 of the I.P.C.
6 AIR 1977 SC 2236.
7 AIR 1964 SC 1563
In Ashiruddin Ahmed V/s. State (1950 Cri. L.J. 225).Facts: - The accused had dreamt that he was
commanded by someone in paradise to sacrifice his five-year-old son of five years. The next morning
the accused took his own son to a mosque and killed him by stabbing him in the throat. He then went
straight to his uncle, but finding a chawkidar nearby, took his uncle to the tank at some distance and
slowly told him the story. Held: - that the accused was entitled to the benefit of S.84, as even though
he knew the nature of the act, he did not know that it was wrong.
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Facts: The accused was Kalavati's husband. He did not like his wife;
therefore, he wrote a letter to his father-in-law stating this fact to him. After some
months, he again asked his father-in-law to take Kalavati to his house. He wrote
that he would take Kalavati on or before 9/4/1959. But he did not come on that
day. On that night, Kalavati’s shout was heard by her neighbours, crying that her
husband was beating her and stabbing her. She also called for the help of
neighbours. Neighbours called the accused, but by the time he came out, Kalavati
was found dead with a number of wounds on her body. The accused took the
defence of insanity. But he was convicted of murder by Sessions Judge. This case
eventually came to appeal before the Supreme Court.
The Supreme Court Held: - that the crucial point of time for ascertaining the
State of mind of the accused is the time when the offence was committed, and it
can be ascertained from the circumstances which proceeded, attended and
followed the crime. Thus, the conduct of the accused prior to and at the time of
the incident is relevant. The normal conduct of the accused prior to and after the
incident disallows the defence of insanity in this case.
(..g...)
DRUNKENNESS OR INTOXICATION (INVOLUNTARY)
(S. 85 & 86)
QUESTION BANK
Q.1. Discuss the liability of an intoxicated person under the I.P.C.
Q.2. Intoxication as a defence.
SYNOPSIS
I]
II]
Introduction
Intoxication as a defence under I.P.C [Ss. 85, 86)
I.
INTRODUCTION:-
There are three kinds of abnormal persons who are unable to form rational
thinking and do not know the nature of their act. They can also not know the effects
and legal consequences of their act. They are persons of unsound mind, persons
heavily drunken (intoxicated) and minors. It is because they lack the mens rea
requisite for committing that crime. Under S. 85 and S. 86, intoxication has been
provided as a defence to the criminal charge; however, such intoxication should
not be voluntary.
II]
INTOXICATION AS DEFENCE UNDER I.P.C (Ss.85 AND 86)
If read together, Ss. 85 and 86 give a comprehensive statement of the law
on the subject of intoxication as a defence to criminal prosecution. It provides that
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the person will be exonerated from liability for an act done while in a state of
intoxication if he, at the time of doing it by reason of intoxication, was-
a)
b)
incapable of knowing the nature of the act, or
that he was not in the state of mind to know that the act was either
wrong or contrary to law, and
c)
that the thing (liquor etc.) which intoxicated him was administered to
him without his knowledge or against his will, and
voluntary drunkenness is no excuse for the commission of a crime.
that the burden of proving intoxication without his knowledge or
against his will lies on the accused.
d)
e)
Thus, voluntary drunkenness is no defence to a criminal charge. This is
because allowing voluntary drunkenness as the defence will cause serious defects
in the administration of the criminal justice system.
Facts: - The accused was a retired military Jamadar who attended a
marriage party in which he drank liquor heavily. He wanted to sit in a chair where
a boy already had sat. The accused asked him to stand so that he would sit in it.
The boy refused. The accused became annoyed and shot the boy with his pistol.
The boy died on the spot. Thereafter, the accused walked to the police station and
surrendered himself. The accused pleaded that he was heavily intoxicated.
Held: - Voluntary intoxication is no defence to a crime. Moreover, the
conduct of the accused, standing, arguing and shooting at a boy and walking to
the police station himself without the help of anybody, shows that the accused did
not lose his state of mind. He was aware of what he was doing. Therefore, he was
convicted of the offence of murder.
Facts: - In this case, Beard was charged with the murder of a girl of
thirteen. He ravished her, and in furtherance of the rape, he placed his hand upon
her mouth and his thumb upon her throat, in consequence of which she was
suffocated. His defence was that he was drunk.
Held:- Drunkness voluntarily is no defence to a criminal charge. Therefore,
the accused was convicted of murder.
8 AIR 1956 SC 488.
9 (1920) AC. 479.
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(..h.. )
CONSENT
(S .87 to 92)
QUESTION BANK
Q.1. Explain the defence of consent as provided under I.P.C, with reference to
decided case law.
Q.2. “He who consents suffers no injury” Explain the applicability of this
principle to criminal liability.
SYNOPSIS
I]
II]
Introduction.
Definition of the consent (S. 90)
Scope of the defence of consent.
III]
I]
INTRODUCTION
‘Volunti non fit injuria’ seems to be the defence accepted in criminal
charges also. Ss. 87 to 91 of the I.P.C incorporate this principle. These sections
lay down the nature and Scope of the defence of consent in a criminal trial.
II]
DEFINITION OF CONSENT (S. 90)
S.90 defines consent negatively. It lays down what is not consent. It
provides that consent is not a consented if it is given –
1)
2)
by a person under fear of injury, or
by a person under a misconception of fact and the person
obtaining the consent knows or has reason to believe this
by a person of unsound mind.
3)
4)
5)
by a person who is intoxicated
by a person under twelve years of age.
-and cannot understand the nature and consequence of that to which he gives
his consent.
It is also positively defined by Jurist Story as “consent is an act of reason,
accompanied with deliberation, the mind weighing as in balance the good and evil
on each side’.
In Emp. V/s Fattemah
Facts: - The accused, in this case, professed himself to be a snake charmer
and persuaded the deceased to allow themselves to be bitten by the poisonous
snake, inducing them to believe that he had the power to protect them from harm.
The Court Held that: - the consent given by the deceased allowing
themselves to be bitten did not protect the accused. Such consent has been founded
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on a misconception of the fact that is, in the belief that the accused had power by
charms to cure snake bites, and the accused knowing that the consent was given
in consequence of such misconception.
III] SCOPE OF THE DEFENCE OF CONSENT
Ss. 87, 88, 89, and 91 describe the Scope of S. 90, i.e., the defence of
consent.
1)
An act not intended or known to be likely to cause death or grievous
hurt to a person above 18 years of age who has given (express or
implied) consent to suffer it is not an offence (S. 87)
Illustration
A and Z agree to fence with each other for amusement. This agreement implies
the consent of each to suffer any harm which, in the course of such fencing, may
be caused without foul play; A, while playing fairly, hurts Z, and A commits no
offence.
However, this section does not permit a man to give his consent to anything
likely to cause his own death or grievous hurt. Ordinary games such as fencing,
single sticks, boxing, football, and the like are protected by this section.
2)
Act not intended to cause death done by consent in good faith for
person benefit, is no offence (S. 88)-
Illustration
A surgeon, knowing that a particular operation is likely to cause the death of Z,
who suffers from a painful complaint but does not intend to cause Z’s death and
intends in good faith Z’s benefit, performs that operation on Z, with Z’s consent.
A has committed no offence if Z dies.
The preceding section allows any harm to be inflicted short of death or
grievous hurt. This section sanctions the infliction of any harm if it is for the
benefit of the person to whom it is caused. However, no consent can justify an
intentional cause of death. This section protects surgeons, surgical operations, and
teachers' reasonable acts (i.e., moderate punishments inflicted on the pupil to
enforce discipline in school.).
3)
Act done in good faith for the benefit of a child or insane person, by or
by the consent of the guardian, is no offence (S. 89):-
Provided that this exception shall not extend to -
i)
the intentional causing of death or attempting to cause death.
ii)
the act, which the person doing it knows to be likely to cause death for any
purpose other than (a) the preventing of death or grievous hurt or
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(b) the curing of any grievous disease or infirmity.
the voluntarily causing or attempting or abetting to cause hurt for any
Prof. Santosh D. Bhosale
iii)
purpose other than (a) prevention of death or grievous hurt or
(b) curing of any grievous disease or infirmity.
Illustration
i) A, in good faith, for his child’s benefit without his child’s consent, has his child
cut for the (kidney) stone by a surgeon, knowing it to be likely that the operation
will cause the child’s death, but not intending to cause the child’s death. A is
within the exception, inasmuch as his object was the child's cure.
ii) A, a parent, whips his child moderately for the child’s benefit. A has committed
no offence.
This section empowers the guardian of an infant under twelve years or an
insane person to consent to the infliction of harm to the infant or the insane person,
provided it is done in good faith and is done for his benefit. A person above twelve
years of age is considered to be capable of giving consent under S.88.
4)
Exclusion of acts which are offences independent of harm caused
(S.91):-
Illustration
Causing miscarriage (unless caused in good faith for the purpose of saving the life
of the woman) is an offence independently of any harm which it may cause or be
intended to cause to the woman. Therefore, it is not an offence “by reason of such
harm”, and the consent of the woman or her guardian to the causing of such
miscarriage does not justify the act.
This section is a sort of exception to Ss.87, 88, and 89. The defences under
these sections are not available to acts that are offences independent of any harm.
Thus, causing miscarriage, public nuisance, offences against public safety and
morals, etc., are independent offences and can not be justified by the consent of
that person or by the consent of his guardian.
5)
Act done in good faith for the benefit of a person without consent, no
offence (S. 92)
Illustrations
a) Z is thrown from his horse and is insensible. A, a surgeon, finds that Z
requires to be trepanned. A, not intending Z’s death, but in good faith, for
Z’s benefit, performs the trepan before Z recovers his power of judging for
himself. A has committed no offence.
b) Z is carried off by a tiger. A fires at the tiger, knowing it to be likely
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that the shot may kill Z, but not intending to kill Z, and in good faith,
intending Z’s benefit. A’s shot gives Z a mortal wound. A has committed
no offence.
This section deals with cases of emergency, wherein the consent will be
implied or inferred. S. 92 provides that where harm is caused in good faith to a
person without that person’s consent, where circumstances are such that it is
impossible for that person to signify consent or if that person is incapable of giving
consent (being an infant or a Lunatic) and if there can be no guardian or other
person from whom consent can be obtained in proper time, any harm caused to
such person is justified. However, this right is restricted by the same limitations
as discussed in S.89, except for the slight difference that under this section, even
the causing of simple hurt is prohibited for any purpose other than the prevention
of death or hurt. Thus, Ss. 88, 89, and 92 are the protections of medical
practitioners.
(..i..)
COMMUNICATION MADE IN GOOD FAITH (S.93)
S.93 protects a man from criminal prosecution for communicating in good
faith for the benefit of the person to whom it is made.
Illustration
A surgeon, in good faith, communicates to a patient his opinion that he
cannot live long. The patient dies as a consequence of the shock. A has committed
no offence, though he knew it to be likely that the communication might cause the
patient’s death.
(..j..)
DURESS (COMPULSION) (S94)
S.94 exempts a man from criminal liability in respect of acts committed by
him under compulsion or duress.
S.94 provides that, except murder and offences against the State punishable
with death, nothing is an offence which is done by a person who is compelled to
do it by threats, which at the time of doing it, reasonably cause the apprehension
that instant death to that person will otherwise be the consequence.
Provided the person doing the act did not, of his own accord or from a
reasonable apprehension of harm to himself short of instant death, place himself
in the situation by which he becomes subject to such constraint.
Explanation 1: -
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A person who, of his own accord or by reason of a threat of being beaten,
joins a gang of dacoits, knowing their character, is not entitled to the benefit of
this exception on the ground of his having been compelled by his associates to do
anything that is an offence by law.
Explanation 2: -
A person seized by the gang of dacoits, and forced, by the threat of instant
death, to do a thing which is an offence by law, for example, a smith compelled to
take his tools and to force the door of a house open for the dacoits to enter and
plunder it, is entitled to the benefit of this exception.
This section is based on the maxim. ‘Actus me invoto (factus) non-est mens
actus’, i.e. an act which is done by me against my will is not my act, and hence I
am not responsible for it.
(..k..)
ACT CAUSING SLIGHT HARM (S. 95)
S. 95 lays down the law as to the trifling acts. It provides that nothing is an
offence by the reason that-
i) it is caused, or
}
ii) is intended to cause, or
} any harm
iii) is known to be likely to cause }
If that harm is so slight that no person of ordinary sense and temper would
complain of such harm.
This exception is based on the maxim ‘de minimis non curat lex’, i.e. the
law takes no account of trifles. Thus, it is theft to dip a pen in another man’s ink-
pot or to take a sheet of paper from another’s drawer; it is causing hurt to a man
by pressing against him in getting into a railway compartment or a theatre hall,
but the law does not take notice of such acts. If it were made punishable, all free
movement and intercourse in society would come to an end; men would not be
able to live together.
(..l...)
RIGHT OF PRIVATE DEFENCE
(Ss. 96 TO 106)
QUESTION BANK
Q.1. Briefly explains the nature, extent duration of the right of private defence of
the body under the I.P.C.
Q.2. “The Indian Penal Code permits a man to use force as a right of private
defence to prevent harm to person and property” Discuss.
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Q.3. What are the acts against which there is no right of private defence?
Q.4. Explain the right of private defence. When does the right of private defence
extend even to the causing of the death of a human being?
Q.5. Explain the Scope of the right of private defence under the I.P.C, and explain
when death can be caused in defence of property.
Q.6. Explain fully the right of private defence along with its exceptions.
Q.7. When private defence extends to causing of death to protect body and
property.
1. The right of private defence of property.
SYNOPSIS
SHORT NOTES
I]
II]
A]
Introduction.
Right of private defence.
Right of private defence of body.
1)
2)
Right of private defence of body (S.97 and 98)
Acts against which there is no right of private defence (S. 99)
a)
b)
c)
Acts of a public servant.
Time to obtain protection of public authorities
Extent of the right of private defence.
3)
When right of private defence of body extend to cause death
(S.100)
4) Commencement and continuance of right of private defence of
body
(S.102)
B]
Right of private defence of property: -
1) Right of private defence of property (S.97 and 98).
2) Acts against which there is no right of private defence of property (S.99)
3) When right of private defence of property extend to causing death (S.103)
4) Commencement and continuance of right of private defence of property
(S.105)
I]
INTRODUCTION:-
The right of private defence is recognised in every civilised system of law.
By nature, all creatures have one or the other form of tactic or organ of defence.
The right of private defence is very fundamental in nature. Therefore, the law of
private defence provides that when a person is suddenly faced with an attack on
his person or property. Immediate aid from the State (i.e. police, etc.) machinery
is not available, and that person is entitled to defend himself and resist the attack
and to inflict on the offender such harm that it is necessary to defend. The right of
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private defence serves a social purpose. There is nothing more degrading for a
human being than to run away in a cowardly manner at a time of peril.
In India, the right of private defence is dealt with by Ss. 96 to 106 of the
Indian Penal Code. The rights guaranteed under these sections are the right to
defend not only the person and property of a person himself but also the person
and property of others. S.96, therefore, declares that nothing is an offence which
is done in the exercise of the right of private defence. However, this right of private
defence is subject to the limitations imposed in Ss. 99 to105 of the I.P.C. S.97 lays
down that the right of private defence embodies the defence of the person and
property of a person himself as well as of others (i.e. of strangers).
Held:- The burden of proving the right of private defence is on the accused.
However, he need not prove defence beyond a reasonable doubt; mere
preponderance of probability is sufficient.
In Gopal V/s State of Rajasthan (2013 S.C.C. (2) 188)
Supreme Court that:-S. 96 provides ‘Right of Private defence’; but does
not provide its definition. Deciding on the right of private defence is a question of
fact; whether the defence of the right of private defence is proper or not depends
upon the fact and circumstances of each case.
Thus the right of private defence may be of a person (i.e. of the body) or
property. A person can defend not only his own person or property but the person
and property of others (strangers) too.
II]
A)
1)
RIGHT OF PRIVATE DEFENCE:-
Right of Private Defence of Body:-
Right of Private Defence of body: -
a) As studied above, S.97 provides for the right of private defence of
person’s own body as well as of another’s, against any offence
affecting the human body (S. 97)-
Indian law, on this point, provides a wider right of private defence than English
law. In Indian law, even a stranger may defend the person or property of another, whereas,
in English law, there must be some kind of existing relationship, such as that of master
and servant or husband and wife or guardian or ward, to exercise the right of private
defence of another person
.
b) Right of private defence against the act of a person of unsound mind
10 (AIR 2007 SC 363).
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etc. (S. 98) –
This section provides that the right of private defence is available even
against the person who might not be held criminally liable for his act, either
because of his unsound mind or due to want of maturity of understanding or by
reason of any misconception on the part of that person.
Illustration
a)
Z, under the influence of madness, attempts to kill A; Z is guilty of no
offence (because of his being mad). But A has the same right of private defence
which he would have if Z were sane.
b)
A enters by night a house which he is legally entitled to enter. ‘Z’ in good
faith, taking A for a house breaker, attacks A. Here Z, by attacking A under a
misconception, commits no offence. But A has the same right of private defence
against Z, which he would have if Z were not acting under the misconception.
2)
Acts against which there is no right of private defence (S.99):-
This section lays down the limit on the right of private defence of body as
well as of property mentioned under Ss. 96 to 98 and 100 to 106 viz.
a)
Acts of a public servant
There is no right of private defence against the act of a public servant, acting
in good faith in the discharge of his legal duty, provided the act is not illegal.
However, the right of private defence is available even against a public servant
when: -
i) the act of a public servant reasonably cause apprehension of death or
grievous hurt.
ii) when a public servant does not act in good faith under the colour of his
office.
iii) When the person exercising the right does not know or have any reason
to believe that the attacker is a public servant or is acting under the
direction of a public servant.
Facts: - In this case, certain customs officers, on a search, found that the
goods were smuggled from Yaman into Indian Territory. The smugglers, during
the search, attacked the officers and caused injuries. They pleaded the right of
private defence.
Court held: - that the officers had acted in good faith and under the colour
11 (1937)
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of their office, and therefore no right of private defence was available to the
accused.
b)
Time to obtain the protection of public authorities: -
The right of private defence is also not available in cases where there is time
to have recourse to the protection of the public authorities.
c)
Extent of the right of private defence: -
The right of private defence is restricted to not inflecting more harm than it
is necessary to inflict for the purpose of defence. The right of private defence is a
defensive right that cannot be extended to punish an attacker.
Wherein the Court negatived the right of private defence of an accused who
killed a weak old woman found stealing at night. The accused exceeded the right
of private defence.
3)
(S. 100)
In the following cases, the right of private defence extends in causing even
When the right of private defence of the body extends to causing death
the death of the assailant.
When an assault causes a fear of death
In this case, if the defender is so situated that he cannot exercise the right
without risk of harm to an innocent person, he may even run that risk (S.106).
Illustration
‘A’ is attacked by a mob, which attempts to murder him. He cannot effectually
exercise his right of private defence without firing on the mob, and he can not fire
without risk of harming young children who are mingled with the mob. A commits
no offence if, by so firing, he harms any of the children.
- a) When an assault causes fear of death.
b) When an assault causes fear of grievous hurt.
c) When an assault is made with the intention of committing rape.
d) When an assault is made with the intention of committing an unnatural
offence.
e) When an assault is with the intention of kidnapping or abduction.
f) When an assault is with the intention of wrongfully confining a person and,
thus, preventing him from taking recourse to public authority.
12 (1866) 5 WR 33
13 AIR 1960, SC 67.
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Facts: - In this case, Gopal (a deceased) had married the sister of
Vishwanath, an accused. But the relationship between Gopal and his wife became
strained on account of Gopal’s suspicion of her chastity. Therefore, she was
staying at her father’s house, where Vishwanath and her brother also lived. In
contrast, Gopal was staying with his relatives, i.e. Banarasi, in nearby quarters of
the Railway. Gopal insisted his wife stay with him in Banarasi’s house, but she
refused. On one fine evening, Gopal sought the help of Banarasi’s family and took
Banarasi and his two sons with him to his father-in-law's house, where his two
sons stood outside the door of the house and Gopal went inside. He tried to drag
his wife out of the house, but she was struggling and refusing to go with him.
Thereupon, to protect his sister, Vishwanath drew a knife from his pocket and
stabbed Gopal. As a consequence, he died. The prosecution argued that the
accused, Vishwanath, had exceeded the right of private defence. Whereas the
accused pleaded that the killing was justified under the right of private defence,
while the victim was to abduct the sister of the accused.
Held: The court accepted the defence of the accused and acquitted him.
4)
Commencement and continuance of the right of private defence of
a
body (S.102): -
It provides that the right of self-defence 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 apprehension of danger to the body continues.
However, it must be noted that the apprehension must be reasonable and
must not be fanciful.
In State of U.P. V/s Ramswarup
Facts: - The attacker, when (he) was defeated by a person (accused), was running
away to save his life when the accused shot him down with his gun, in the result
of which the assailant died. The accused took the defence of the right of private
defence of the body.
Held:- that the right arises as soon as the reasonable apprehension arises until the
threat continues. There is no right to inflict punishment on the wrong door for his
attack after the apprehension ceases. The right of defence ends with the necessity
for it. Therefore, when the deceased was fleeing for his life, there was no
justification to shoot him down. This is a case of murder and nothing else.
B)
Right of Private Defence of Property: -
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1) Right of Private defence of property: -
Every person has the right to defend the property (whether movable or
immovable) of himself or of any other person-
“General Exceptions”
Prof. Santosh D. Bhosale
a)
Against theft, robbery, mischief or criminal trespass, or any act which is
an attempt to commit theft, robbery or criminal trespass (S.97), and
Against the act of a lunatic or a person acting under a misconception of
facts (S. 98).
b)
Illustration
A enters a house by night, which he is legally allowed to enter. Z, in good faith,
taking (presuming) A for a house breaker, attacks A. Here, by attacking A under
this misconception, Z commits no offence. However, A has the same right of a
private defence against Z, which he would have if Z had not acted under this
misconception.
2) Acts against which there is no right of private defence of property (S.99)
(S. 99 lays the same limitations on the right of private defence of property,
as discussed in the right of private defence of the body.)
3)
When the right of private defence of property extends to causing death
(S.103):-
The right of private defence of property extends to the causing of death or
any other harm to the offender; in the following cases, only Viz-
i)
ii)
Robbery,
House breaking by night.
iii)
Mischief by fire to any building, tent or vessel used as a human
dwelling or as a place for the custody of property.
Theft, mischief or house trespass under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the
consequence if such right of private defence is not exercised. But in
any other case, the right of private defence does not justify the killing
of assailants (S. 104).
iv)
4)
Commencement and continuance of the right of private defence of the
property (S. 105): -
The right of private defence of the property commences as soon as the
reasonable apprehension of danger to the property commences: - The right
continues in case of-
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a) Theft - till
a) the offender has affected his retreat with the
property, or
b) the assistance of the public authorities is obtained,
or
c) the property has been recovered.
a) the offender causes or attempts to cause any
person death or hurt or wrongful restraint or
b) the fear of instant death or instant hurt or of
instant personal restraint continues.
b) Robbery
-
as long as
c) Criminal trespass
as long as the offender continues in the commission
of criminal trespass or mischief.
or mischief
d) Housebreaking
as long as the house trespass continues.
by night
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