Chapter IV of the Indian Penal Code deals with the general exceptions to
criminal liability. There are various kinds of acts (exceptions) done under the
circumstances mentioned in Secs. 76 to 106 which will not amount to offences
under the Code.
These exceptions are:
The onus of proving exceptions lies on the accused that has to prove the circumstances bringing the case within any of the general exceptions. The court shall presume the absence of such circumstances. The prosecution has to prove the guilt of the accused.
Thus, A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. It may be noted that unlike the prosecution, which has to prove the charge beyond a reasonable doubt, the accused has to show that preponderance of probabilities is in favour of his plea.
Mistake of fact is sometimes a good defence. Sec. 76 lays down that 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 mistake of law, in good faith, believes himself to
be bound by law to do so.
Mistake is a slip made, not by design, but by mischance. Under English common
law also, an honest and reasonable belief in the existence of circumstances,
which would have made that act an innocent act, has always been a valid defence.
An honest and reasonable mistake stands, in fact, on the same footing as
absence of the reasoning faculty, as infancy or lunacy (Tolson's case, 1889).
Mere forgetfulness is not mistake. Mistake of fact implies mistake as to true
identities or mistake in sensory perceptions such as temporary distortion of
imagination. Thus, in Tolson's case, the accused wife was convicted of bigamy.
It was held that as at the time of second marriage she bona fide believed her
husband to be dead, her conviction was wrong.
Mistake of fact is no defence if the fact itself is illegal. One cannot do an
illegal act (e.g. selling adulterated foodstuffs) and then plead ignorance of a
fact. Thus, a person cannot by mistake of fact, shoot X and then plead in
defence that he did not intend to kill X at all, but mistaken him for Y, whom he
wanted to kill.
Similarly, taking an unmarried girl under the age of 16 years out of possession and against the will of her father was held not to be a good defence to an indictment for abduction because the accused intended to do and did a wrongful or immoral act, and not an innocent act [R v. Princes (1875) LR 2 CCR 154]. However, where A sees a young girl about to jump into the river; believing that the girl is about to commit suicide A grapples with her and drags her away, he is not guilty of molestation although it may turn out that the girl was actually doing sun worship.
The maxim respondeat superior (act done by the order of a superior) has no application in criminal law.
The order of a superior to an inferior servant to commit an offence is not a valid defence. Thus, where under order of their naik, three sepoys of a regiment fired a shot at a mob which, otherwise, was by no means violent, it was held that they were guilty of culpable homicide not amounting to murder, and they were not bound to obey an illegal order. If commands are obviously illegal, an inferior would be justified in refusing to execute such commands [Gurdit Singh (1812) P.R. 16].
One cannot plead ignorance of fact when responsible inquiry' would have elicited the true facts. For example, when a person marries on an honest belief that his previous marriage has been dissolved by a decree of divorce whereas the divorce decree has not been granted, he will be guilty of bigamy. He should have made responsible inquiries about dissolution of previous marriage.
According to Sec. 79, nothing is an offence if done by a person who in good
faith believes himself to be justified by law in doing that act. The distinction
between Sec. 76 and Sec. 79 is that in the former, a person is assumed to be
bound, and in the latter to be justified by law. The distinction is between a
real or supposed legal obligation and a real or supposed legal justification in
doing the act. Under both the sections, there is a bona fide intention to
advance the law (mens rea is absent in both).
A sees Z commit what appears to be murder. He in good faith seizes Z, to hand him over to the police. A has committed no offence though it may turn out that Z was acting in self-defence.
The distinction between Sec. 76 and Sec. 79 is that in the former, a person is assumed to be bound, and in the latter to be justified by law. In other words, the distinction is between a real or supposed legal obligation/compulsion and a real or supposed legal justification in doing the particular act. However, under both the sections, there is a bona fide intention to advance the law (mens rea is absent in both).
Where A mistook in good faith another's umbrella to be his own and took the defence that at the time of taking the umbrella he was intoxicated and erroneously believed that the umbrella was his own, the defence is tenable (Sec. 76). Where A shoots at B (A's inmate) who enters his room at night under circumstances which make A to believe in good faith that B is a burglar, it was held that A will not be liable for shooting B and will be entitled to claim defence of justifiable mistake under Sec. 79.
In Chirangi v. State (1952 CrLJ 1212), the
accused, in a momentary delusion, mistook his own son as a tiger and killed him.
In Wary am Singh v. Emperor (AIR 1962 Lah 554), the accused, in a night, mistook
a living human being as a ghost and killed him. A similar act was done by the
accused in State of Orissa v. Ram Bahadur Thapa (AIR 1961 Ori 161).
The second general exception relates to act of judges and courts. According to
Sec. 77, any act done by a judge while acting judicially, which he in good faith
believes to be given to him by law, is no offence. Thus, a judge who sentences a
prisoner to death (even wrongly) is not himself liable to be hanged for having
caused somebody's death.
Similarly, according to Sec. 78, an act done pursuant to the judgment or order of a court of justice (when the person doing the act in good faith believes that the court has jurisdiction) is no offence. If it were to be an offence the hangman who hangs the prisoner pursuant to the order of the judge, would also have to be hanged.
It may be noted that under Sec. 78, the officer is protected in carrying out an order of a court, which may have no jurisdiction at all, whereas as under Sec. 77, the judge must be acting within his jurisdiction to be protected by it. Thus, mistake of law' can be pleaded as a defence under Sec. 78.
The third general exception relates to acts committed by accident. Sec. 80 lays down that nothing is an offence, which is done by accident or misfortune:
A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on A's part, his act is excusable and not an offence.
An accident is something that happens out of the ordinary course of things. The idea of something fortuitous and unexpected is involved in the word accident'. An injury is said to be accidentally caused whenever it is neither wilfully nor negligently caused. Thus, in a game of cricket a ball strikes a man on the head and he dies. Such a death is accidental. Similar is the case where two wrestlers arranged bout in the course of which the deceased fell and broke his skull.
Some other illustrations are:
A takes up a gun, and without examining whether it is loaded or not, points it in sport at B, and pulls the trigger. B dies. Such a death is not accidental, as there was want of proper care and caution. If A has reason to believe that the gun was not loaded, the death would have been accidental. It may be noted that shooting with an unlicensed gun will not debar an accused from claiming the benefit of Sec. 80. A shoots at a bird in B's house in order to steal it, and kills B. A is liable, as his act was not lawful. To steal is not a lawful act.
Criminal intention means the purpose or design of doing an act forbidden by
criminal law without just cause or excuse. Now, there are certain acts, which
appear to be criminal, but are done without any criminal intent. It is but fair
that such acts should not be penalized, which lack mens rea.
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, for the purpose of
preventing or avoiding harm to person or property is not an offence.
For instance, A, in a great fire, pulls down houses in order to prevent the conflagration from spreading, or where the sailors threw passengers overboard to lighten a boat.
The principle upon which Sec. 81 is based is that when in a sudden and extreme emergency, one or the other of two evils is inevitable, it is lawful so to direct events so that the smaller evil only shall occur. It is a question of fact in each case whether such circumstances exist.
However, a man cannot intentionally commit a crime in order to avoid other greater harm. In a case, a thief was in the habit of stealing the toddy from pots. The accused placed poison in his toddy pots to detect the thief. The toddy was drunk by, and caused injury to, some soldiers who purchased it from an unknown vendor. It was held that Sec. 81 was of no defence to the accused (Emperor v. Dhania Daji, 1868). Similarly, a person dying of starvation cannot commit theft of food and plead that he did so to avoid harm, viz. his own death, because he intentionally committed the offence of theft.
Likewise, in Dudley v. Stephens (1884) 14 Q. B. D. 173, it was held that a man, who, in order to save his life from starvation, kills another for the purpose of feeding on his flesh, is guilty of murder. The doctrine of self-preservation is of no avail in such cases.
Under the Indian Penal Code, there is an absolute incapacity for crime under
seven years of age. According to Sec. 82, an act of a child under seven years is
no offence. It is to be noted that this immunity is not confined to offences
under the Code only, but extends to offences under any special or local law.
An infant is, by presumption of law, doli incapax i.e. not endowed with any discretion so as to distinguish right from wrong, thus, the question of criminal intention does not arise. Where persons get crimes committed through children below 7 years, they will be held liable while the child will be exempted.
According to Sec. 83, acts done by children above seven and below 12 will be protected if it is shown that the child in question has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. It is to be noted that there is complete liability to punishment after twelve years of age.
In a case, a girl of 10 years married again during the lifetime of her husband, the marriage being negotiated and caused to be performed by her mother. Here, if the girl was of sufficient maturity of understanding, she would be liable for bigamy. Similar would be the case where a child of 9 years of age stole a gold necklace and sold it to B for half a rupee only. The boy would be liable if he was proved to be of sufficient maturity of understanding. The maxim malitia supplet oetatem (malice supplies defect of years) applies to Sec. 83. The circumstances of a case may disclose such a degree of malice as to justify the maxim.
Criminal law gives complete protection to a lunatic. Sec. 84 lays down that
nothing is an offence which is done by a person, who owing to unsoundness of
mind, is incapable of knowing the nature of the act, or that he is doing what is
wrong or contrary to law. The legal insanity contemplated by this section is
different from the medical insanity.
No culpability can be fastened upon insane persons as they have no free will (Furiosi nulla voluntas est).
The words unsoundness of mind include following kinds of persons:
Drunkenness is a species of madness for which the man is to blame. If a man
chooses to get drunk, it is his own voluntary act; it is very different from
madness, which is not caused by any act of the person.
Qui Pecat Ebrius Luat Sobrius: Let him who sins when drunk be punished when sober. However, Secs. 85 and 86 protect an intoxicated person provided he got intoxicated by mistake (e.g. took a wrong medicine) or by fraud or force.
Sec. 85 lays down that nothing is an offence which is done by a person, who owing to intoxication is incapable of knowing the nature of the act, or that what he is doing is wrong or contrary to law, provided that the thing which intoxicated him was administered without his knowledge or against his will. Thus, the test of drunkenness is the capacity to form an intention' of committing the offence; in the case of insanity, the test is capacity to knew' the nature of one's act. However, insanity produced by drunkenness is a defence (under Sec. 84).
Sec. 86 states the presumption for certain offences committed by intoxicated persons. Thus, if an act is an offence only when done with a particular intention or knowledge, and such an act is committed by an intoxicated person, he will be presumed to have knowledge requisite for the offence, unless he can show that he was intoxicated without his knowledge or against his will. It may be noted that there is no presumption as regards his intention.
The intoxication may be caused by liquor, medicines, bhang, ganja, etc. Where the accused drank liquor at the persuasion of his father to alleviate his pain, it cannot be said that administration of liquor to him was against his will. Thus, he could not claim any benefit under Sec. 85.
In Basdev v. State of Pepsu (AIR 1956 SC 488), it was held that drunkenness is ordinarily neither a defence nor an excuse for crime'. By law, an intoxicated person is presumed to have the same knowledge as a sober man. However, the intention must be gathered from the circumstances of the case paying due regard to the degree of intoxication.
When the accused's mind was so affected by drink that he more readily gave way to some violent passion, it could not be said that the accused did not intend the natural consequences of his acts. To claim benefit under Sec. 86, the accused has to be so drunk that he was incapable of forming the intent [Director of Public Prosecutions v. Beard (1920) A.C. 479].
The test to apply in cases of drunkenness is not the test applied in cases of
insanity viz., whether the accused person knew what he was doing was wrong or
was able to appreciate the nature and quality of his act. However, insanity
produced by drunkenness is a defence (under Sec. 84).
The correct test is whether by reason of drunkenness, the accused was incapable of forming an intention of committing the offence. A man is taken to intend the natural consequences of his acts. This presumption may be rebutted in the case of a drunken man by showing that he did not know what he was doing was dangerous, or incapable of forming the specific intent essential to constitute the crime [Director of Public Prosecution v. Beard (1920) AC 479]. Thus, the accused could rebut this presumption by giving such evidence of drunkenness as might have affected his faculty of understanding to form the requisite intent (Dasa Kandha v. State of Orissa, 1976 Cr LJ 2010).
Sec. 86 says that a person voluntarily intoxicated will be deemed to have the same knowledge as he would have had if he had not been intoxicated. The section does not say that the accused shall be liable to be dealt with as if he had the same intention as might have been presumed if he had not been intoxicated. Therefore, there is no presumption under Sec. 86 with regard to intention' (the presumption of knowledge alone is provided). In such cases, his intention would have to be gathered from the facts and circumstances of every individual case, having due regard to the degree of intoxication.
If the existence of a specific intention is essential to the commission of a crime the fact that the offender was drunk, when he did the act, which if coupled with that intention would constitute such crime, should be taken into account in deciding whether he had that intention (Sir James Stephen).
Voluntary drunkenness is an excuse only as regards intention so that it is a complete excuse in crimes requiring the presence of an intention to complete a crime. But voluntary drunkenness is no excuse for a crime which requires the mere presence of knowledge as distinct from intention If a man was out of his mind altogether at the time of commission of crime, it would not be possible to fix him
Section 92 lays down that nothing is an offence by reason of any harm which it
may cause to the person for whose benefit it is done, in good faith, and even
without that person's consent, under emergent circumstances. For instance, an
immediate operation performed by a surgeon on an accidental victim; or where a
person drops a child from the housetop (the house being on fire) knowing it to
be likely that the fall may kill the child, but not intending to kill the child,
and intending, in good faith, child's benefit.
Z is carried off by a tiger. A fires at the tiger, knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith, intending Z's benefit. A's bullet give Z a mortal wound. A has committed no offence.
Section 93 lays down that any communication made in good faith to a person for
such person's benefit is no offence, even though such communication may cause
harm to such person. For instance, a surgeon, in good faith, communicates to a
patient his opinion that he cannot live. The patient dies under shock. The
surgeon has committed no offence, though he knew that it to be likely that the
communication might cause the patient's death.
As per Sec. 94, offences committed under compulsion or threat by a person so
compelled or threatened will be excused if the threat is to cause instant death
of such person. However, a person so put under threat cannot cause murder or an
offence against the State punishable with death (e.g. treason) to avail benefit
of Sec. 94. Further, 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 under such constraint.
A person who of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, is not entitled to the benefit of Sec. 94. However, a person seized by a gang of dacoits and forced by threat of instant death to do anything which is an offence by law (e.g. to break open the door of a house) is entitled to the benefit of Sec. 94.
It is important to note that merely threatening with future death or any other injury short of death will not be good excuse. The threat should be to cause instant death. Thus, if A approaches B with a stick in his hand and threatens to beat B if the latter does not go and cause a grievous hurt to Z; B cannot plead defence under Sec. 94.
However, if A had a loaded revolver or a dagger in his hand, and held it at B's throat, causing B to believe that he would be instantly killed if he did not break Z's bones, this would be a good defence. Where certain witnesses gave false evidence, and then pleaded that they were threatened by the police to do so, it was held that they were guilty as there was no proof of instant death.
As noted above, a person under threat will not be excused under Sec. 94 if he commits a murder of another person. Sec. 94 seems to enjoin that it is better that he should die under such circumstances, rather than commit murder. However, the offence of attempt' to commit murder or abetment' of murder would be excused if committed under threat of instant death.
[V] Secs. 87-91: Act Done by Consent
Sections 87-91 lays down the law as to how far an act done by consent will be excused in law. It is important to note that consent' plays a very important role in criminal law. Its presence or absence often makes a difference between innocence and crime (viz. an act of sexual intercourse may become rape).
It is to be noted that consent' and submission' are not the same thing. Every
consent involves a submission, but not vice versa. Thus, mere submission by a
person who does not know the nature of an act is not consent.
Thus, causing miscarriage (unless caused in good
faith for the purpose of saving the life of the woman) is an independent
offence, and the consent of the woman or of her guardian to the causing of such
miscarriage does not justify the act.
The sixth general exception is laid down in Sec. 95. The maxim de minimis non
curat lex (the law takes no account of trifles) is the foundation of the
section: If a person causes any harm (even with an intention or knowledge to do
so), and that harm is so slight that no person of ordinary sense and temper
would complain of such harm, it is no offence. Thus, both accidental as well as
deliberate acts are covered by the section. Further, the harm covers actual
physical injury also.
Examples of such trifling acts include- picking up a wafer from the another's plate; lighting one's own cigar form a match-box belonging to the other without his permission; a blow given across the chest with an umbrella by a dismissed-policeman to the D.S.P. as his application to reconsider his case was rejected. Thus, this section covers those cases which fall within the letter of the penal law, but are not within its spirit.
The right of private defence is the right to protect one's own person and
property against the unlawful aggression of others. Sec. 96 lays down that
nothing is an offence which is done in the exercise of the right of private defence. It is a right inherent in man; it is the first duty of man to help
himself. The right must be fostered in the citizens of every free country.
Section 97 lays down that every person has a right to defend his own body or
that of any other person against any offence affecting the human body. Thus,
even a stranger may defend the person or property of another person. While under
the English law, there must be some kind of existing relationship (e.g. master
and servant, husband and wife).
Section 98 provides that for the purpose of exercising the right of private defence, the physical or mental capacity of the attacker (whether with or without mens rea, e.g. a lunatic, a minor, an intoxicated person or a person acting under misconception of fact) is no bar. Thus, if A, a lunatic, attempts to kill B, A is guilty of no offence, but B has the same right of private defence which he would have if A were sane.
Section 100 lays down six acts of aggression, so serious in nature, that the law
gives full authority to the defender even to cause the death of assailant. The
six cases of assault are: reasonable apprehension of death, or of grievous hurt,
assault with the intention of committing rape, or of gratifying unnatural lust,
or of kidnapping and abduction, or of wrongfully confining a person. In other
cases, the defender may cause any harm except death (Sec. 101).
In the case of reasonable apprehension of death, if the defender be so situated that he cannot exercise the right without risk of harm to an innocent person he may even run that risk (Sec. 106) (viz. a person attacked by a mob; he cannot fire without risk of harming young children who are mingled with the mob).
Section 102 lays down that the right of self-defence commences as soon as a reasonable apprehension of danger to the body arises and continues as long as such apprehension continues (even though the offence may not have been committed).
Thus, where the accused continued to assault the deceased after he had fallen down and was rendered harmless, the right of private defence would not be available. Similarly, where a number of persons strangled a thief and subjected him to gross maltreatment when he was fully in their power, the right of private defence was negatived.
Every person has the right to defend the property (whether movable or immovable) of himself or of any other person:
The right of private defence of property is also subject to limitations laid
down in Sec. 99.
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