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How Necessity As Defense Neutralizes The Criminal Liability: Queen v/s Dudley And Stephens If Happened In India

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.

This definition 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 law".

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:
  1. 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.
  2. 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.
  3. 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.

The 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.

  1. Whether necessity can be asserted as a safeguard for murder, and would it be able to make the act permissible or not?
  2. 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".

Necessity should 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 disadvantageous position.

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.

Regardless 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:
  1. 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 harm".
  2. 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.
  3. 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.

Some foreign cases that can be cited:
  1. 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.
  2. 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.

  • Ratanlal & DhirajLal the Indian Penal Code 36th edition.
Articles and Journals:
  1. 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.
  2. Manupatra The Indian Penal Code: Differences between Justification and Excuses and Mistakes and Necessity and Accidents as defences by Sarika Ashok Reddy.

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