Her Majesty the Queen V. Tom Dudley and Edwin Stephens
(1884) QBD 273 (DC)
This essay is going to talk about what will be the judgement if this case
happened within the territorial waters of INDIA, and happened in 2021? And how
does "Necessity as Defence" is neutralizing criminal liability?
Necessity is a sort of protection that is utilized in both criminal law and
civil law. This defence is defined under the Indian Penal Code section 81.
Necessity is defined in the Indian Penal Code as any act that is done to
forestall the other crime or the act in which the mischief will be there but
without any evil intent, it is additionally defined as when forestalling the
other crime, the knowledge was there, or the intent was there but it was done
for the greater good or in good faith without a criminal goal.
gives a better understanding of Necessity under the Indian Penal Code as it is
important to differentiate between the necessity as a defence and other defences
available for this one of Britain's elite scholars of criminal law Glanville Llewelyn Williams defined necessity as:
"By necessity is meant the assertion that
conduct promotes some value higher than the value of literal compliance with the
In criminal cases the necessity by law has been described as an excuse it
means whenever the necessity defence is to be taken in force it should be
justified which is followed by the maxim "Quod necessitas cogit, defendit"
There are some fundamental components that are set by the Indian Penal Code:
- For involving Necessity as protection, the criminal act is done, should
be done without any intentional wrongdoing or evil intent. E.g., like A and
B went hunting A saw that a wild bear is going to attack B so A tried to
shoot the bear but unintentionally kills B so A will not be guilty as he was
not having any intention to kill B.
- For involving Necessity as protection, the act must not be done by
having any malicious intent and if there is any then the person is liable
for his offence.
- For involving Necessity as protection, the act is to be conducted for
the greater good or the act committed to avoiding other harm like Avengers
saving Earth from Thanos.
If these elements of the Indian Penal Code are fulfilled Necessity can be taken
as defence and the person will not be liable for any offence.
So, in the case of Queen V. Tom Dudley and Edwin Stephens
, there were 4 men who
were travelling in territorial waters of INDIA on a boat named Mignonette, these
4 travellers confronted a storm and were trapped in a boat that was around 1000
miles from the land without sufficient food and water.
After finishing their
limited food, they were left with nothing just the sight of water, in the wake
of happening with practically no food and water for seven days Dudley proposed
that one of the four men's life ought to be forfeited to save the other three
lives so the other three can survive by eating the flesh of forfeited one.
Stephens concurred with the idea of Dudley, but Brook refused to follow the idea
and the Richard Parker who was forfeited was not consulted about this idea so
Dudley ordered if they were not able to find anything to eat by the following
day morning, they will execute their plan by killing the 17-year-old boy.
following day there was no indication of the vessel showing up so when the boy
was lying at the lower part of the boat, he was very weak and helpless from
drinking seawater at that time Dudley killed the boy and the boy couldn't make
any obstruction and he never volunteered to get killed. Subsequent to the
killing three of the leftovers ate the boy's flesh for four days later that day
they were saved.
- Whether necessity can be asserted as a safeguard for murder, and would
it be able to make the act permissible or not?
- Whether killing the kid to save one's own life in this situation be
named as a demonstration of self-defence or not?
To start with 1st issue, I noticed that by the killing of the kid, which was
itself a shameless demonstration, the respondents with assurance denied him any
odds of endurance. It was conceivable that all of them may be safeguarded the
following day where the case would be a "profitless" act to kill the kid. what's
more significant is whether or not murder is admissible when somebody wears on
the layer of necessity.
Necessity, in basic terms, is utilizing viciousness to
repulse that savagery that is sensible, supported, and important to stop the
unlawful demonstration towards oneself. The need which legitimizes manslaughter
is of two sorts, The necessity which is of private nature and the Necessity of
managing the public welfare and it is followed by three principles:
"Jus Necessitas means the justification of necessity", "Quad Necessitas Non-Habet
Legam that means necessity knows no law", "Necessitas Vincit Legam that means
necessity overcomes the law".
The principal kind which is pertinent for the case
is self-protection which has effectively been managed. In the current case,
notwithstanding, there was a clear homicide as the impulse to which the
respondents capitulated isn't what the law calls "necessity".
be inescapable to legitimize murder. Besides, the idea of "necessity" ought to
stretch out to everybody, in addition to the kid since he was in a
Secondly, I noticed how to measure the worth of one's life against another. The
very truth that Richard Parker was picked to be killed proposes that his life
was viewed as less significant than the existence of the others as the
17-year-old boy was a vagrant and he was not having a family that he should take
care of. It could be possible that he could be a great man in future.
of whether it was crucial to sacrifice one individual to survive it is simply
improper or uncalled to kill the most vulnerable and docile one. If this pattern
of singling out the most fragile continues until the salvage shows up then at
that point, everybody would be defended in killing and along these lines and
there would not be any person at legitimate fault for homicide.
The case deals
with the use of a Self-safeguard or defence. The law is that an individual can
be legitimized in ending the existence of another just if there should be an
occurrence of self-protection against the one whose life was taken. This
standard, notwithstanding, has no application for this situation as Parker,
being badly, represented no danger to the men.
So, the man can't take
self-protection as legitimization in light of the fact that there was no
incitement, inferred or in any case by the open kid which might urge the men to
make such an extreme move. Also, the self-guard which reaches out to safeguard
others, is adequately adaptable to permit the precautionary utilization of
power, given the individual utilizing the power trusts their direct to be
fundamental and the utilization of power is impartially sensible thinking about
the encompassing conditions. The circumstance here is very unique as there is no
participation of Parker at any point.
As there is no particular law in India that proclaims the eating of human flesh
is illegal but in order to eat it a person has to be murdered and murder is an
offence of culpable homicide, so Dudley, Stephens and brook are the murderers of
Richard so under section 302 three of them are punishable and by this case, it
is laid down necessity can never be used as a defence for crimes this case
discourages the person from taking law in his hand.
Some Indian Cases That Can Be Cited Are:
Some foreign cases that can be cited:
- Gopal Naidu V. Emperor:
In this case of Madras High Court a tipsy man was
having a gun in his hand and was roaming, he was incapacitated and put under
custody by cops, however, the offence of public nuisance under section 290 of IPC is a non-cognisable offence and for the same, the warrant has not required
the cops can directly take the offender under custody.
However, the cops by all
facts were at real fault for the offence of unfair confinement, it was held that
they could argue a defence under Section 81 of IPC that is a necessity as
defence. "For this case, the Madras High Court held that the individual or
property is to be ensured might be the person or property of the blamed himself
or for another person". The word harm under this section signifies "physical
- Olga Tellis V. Bombay Municipal Corporation:
The Supreme Court held that
"under the law of civil wrongs necessity is a conceivable defence, which
empowers an individual to get away from the obligation on the ground that the
offence done in the necessity is to prevent the other harm from happening for
the greater good among other things, in this way the trespass on some property
can't be legitimized consistently based on necessity.
- Dhania Daji:
In this case, the denounced was a toddy-tapper he saw that
toddy was being taken by someone regularly so he sets poison in his toddy pots
to prevent the stealing he was having knowledge that whenever it will be taken
by a person it will surely cause injury. So one day he sold toddy from different
trees, accidentally the poisoned toddy was mixed in the sold one so some of the
consumers consumed and were affected by the poison one person even died by the
poison so when the accused was presented in court he pleaded for section 81 but
it was concluded by the court that the accused was liable under Section 328 of
IPC that is "causing hurt by means of poison or any, intoxicating or unwholesome
drug or another thing with intent to commit an offence" and in that case,
section 81 of IPC does not apply.
- United States V. Holmes:
Necessity doesn't legitimize the sacrifice of travellers to save a sinking boat. This case talks about the drowning American
boat that was hit by an iceberg. The finger was put down on the member of the
crew. Compelled by the mate, he sacrificed and threw out sixteen male travellers
on board to keep the boat safe from sinking. However, he was presented before
the court he wasn't found guilty of a homicide, but he was sentenced for man
slaughtering and condemned to a half-year detainment. He was fined USD 20 for
manslaughter. However afterwards, his sentence was revoked.
- Carter V. Thomas:
In this case, the plaintiff's premise was caught in the
fire so after the fire was caught and was out of control then fire workmen
reached and they attempted to extinguish the fire and simultaneously the
defendant entered the premises to douse the fire by pouring the water from the
bucket and finally after that the fire extinguishes the plaintiff filed a case
against the defendant claiming that he entered in his premises without his
permission so he was liable for the offence of trespass. The court after seeing
all facts concluded that the fire workmen team was already there to extinguish
the fire so there was no need for the defendant to enter the premises and douse
the fire, so the court decided that the defendant was liable for the offence of
trespassing as he entered the premises without the permission.
Articles and Journals:
- Ratanlal & DhirajLal the Indian Penal Code 36th edition.
- The Defence of Necessity in Criminal Law: The Right to Choose the Lesser
Evil by Edward B. Arnolds Norman F. Garland, the Year 1975, Volume 65, Issue
3, Article 2.
- Manupatra The Indian Penal Code: Differences between Justification and
Excuses and Mistakes and Necessity and Accidents as defences by Sarika Ashok
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