Chapter (iv) of the
An act or omission of an accused even though prima facie falls within the term of a section defining an offence or prescribing punishment, but does not constitute an offence if it is covered by any of the exceptions given in chapter (iv).
General exceptions can be classified two categories—
In excusable category the law excuses certain class of person, even though their acts constitute an offence. Acts of infants, insane, or intoxicated persons and the acts done under mistake of facts or by accident fall under this category.
In justifiable category, the acts committed, though are offences, but are justifiable under certain circumstances and hence exempted from the provision of the IPC. Judicial acts, acts done out of necessity, under duress, with consent, its causing slight harm or trivial incidents or acts done in private defence of body or property fall under this category.
Section 105 of the ‘’Evidence Act 1872’’ places the burden of proof on the accused to prove that the case falls within one of the general exceptions. It provides that ‘the court shall presume the absence of such circumstances’ , which may bring the accused within the exceptions set out in ch IV of the IPC. It calls upon the accused to show that the circumstances bringing the case within the exceptions are present, as the court cannot suomotu presume the existence of the circumstances.
Further, sec. 103 of the evidence act provides that when a person wishes the court to believe in the existence of any particular fact, the burden of proof lies on the person who desires the court to believe in it, unless the law specifically provides that the burden lies on any other particular person.
General exception to criminal liability - “standard of proof”
The burden of proof lies on the accused to prove that he is entitled to any of the general exception of the criminal liability. As to the standard of the proof the supreme court has settled the question that the accused may discharge the burden by preponderance of probability. The burden of proof in general exception is not as onerous as that of prosecution.
In VIJAYEE SINGH V. STATE OF U.P
The Supreme Court observed that the accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of hisplea directly or rely on the prosecution core or, he can indirectly introduced such circumstances by way of cross-examination and also rely on the probabilities and other circumstances. Then the initial presumption against the accused regarding the non-excistence of the circumstances in favour of his plea gets displaced and on an examination of the material if reasonable doubt arises, the benefit of it should go to the accused.
Mistake of fact -
76. Act done by a person bound, or by mistake of fact believing himself bound, by law.— 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.
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A hascommitted no offence.
(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
79. Act done by a person justified, or by mistake of fact believing himself, justified, by law.— Nothing is an offence which is done by any person who is justified by law, 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 justified by law, in doing it.
A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murders in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence.
Mistake or ignorance of law
A plain reading of sections 76 and 79, with special attention to the words ‘who by reason of mistake of fact and not by reason of a mistake of law in good faith believes’ appearing therein, reveals that the protection of sections applies only to mistake of fact and to not mistake of law. This is obviously based on the English common law maxim ignorantiafacit doth excust, ignorantia juris non excusat — ignorance of fact excuses, ignorance of law does not excuse. However, it is not easy to draw a logical distinction between a mistake of fact and a mistake of law.
The legal fiction that ignorantia juris non excusat is justified in the public interest. If ignorance of law is admitted as an exonerating factor, it is argued, every accused will take the plea of mistake of law as a defence and it will be difficult for prosecution to refute it and to show affirmatively that the accused knew the law in question. Further, courts, in the absence of evidence, will be obliged to decide as to whether the accused was indeed ignorant of the law. It will also lead to endless complications making the administration of justice nearly impracticable and introducing an element of uncertainty in the administration of justice. Allowing mistake of law will also lead to the encouragement of ignorance of the law.
Mistake of law, even in good faith, is not a defence.
Mistake v. Ignorance -
Ignorance implies a total want of knowledge in reference to the subject matter while mistake admits a knowledge, but implies a wrong conclusion. Ignorance implies passiveness mistake implies action. Ignorance does not pretend to know while mistake assumes to know.
Mistake of fact -
The expression “mistake of fact” is common to both sections 76 as well as 79 IPC. As per Ratanlal and Dhirajlal’s law of crimes. ‘’Mistake is not mere forgetfulness. It is a slip made, not by design, but by mischance. Mistake as the term is used in jurisprudence, is an erroneus mental condition, conception or conviction induced by ignorance, misapprehension or misunderstanding of the truth and resulting in some act or omission done or suffered erroneously, by one or both of the parties to a transaction, but without its erroneous character being intended or known at that time.
Mistake of fact can take the following two forms -
1. Mistake as to true identities; or
2. Mistake in sensory perceptions such as temporary distortion of imagination.
For example - A police officer who carries warrant for the arrest of A, finds B whom he dishonestly believes to be A, and arrest him. The police officer is not guilty of an offence. Similarly, 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.
Mistake of fact - ‘’why it is excused’’
The criminal intention being the essence of crime, if the intention is dependent on a knowledge of a particular fact, and want of such knowledge is not the result of carelessness or negligence than the act will not be considered as a criminal act.
Justice Cave in R v. Tolson
“Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in lunacy, or perversion of that faculty, as in lunacy.
If at all there is no knowledge of the fact, the discussed reasons without reference to that fact and therefore it should be concluded that the fact did not exist at all.
Mistake of law : why it is not excused
‘Blackstone’ argued that a man’s ignorance of law cannot be excused because he is bound to know it.
Austin gave two reasons in support of the argument as to why ignorance of law is not excused.One is if ignorance of law is admitted as a ground of exception, the administration of justice will become impracticable.
Secondly, it was then always be alleged by the party and the court would be bound to decide whether the party was really ignorant of law. It can be justified on the ground of convenience also.It will be very inconvenient to inquire into whether actually the wrongdoer had the knowledge of the law or not.
‘Holmes’ observed ‘’it is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance while the maker has determined to make men know and obey and justice to the individual is rightly outweighed by the larger interests on the other side of the scales.
In R v BOILEY (1800), a sailor has been convicted of an offence that have been forbidden only by An Act of Parliament of which he could not possibly know, since it was enacted when he was for away at sea, and the offence was committed before the news of its enactment could reach him.
IN THE STATE OF MAHARASHTRA V. M.H. GEORGE (1965)
The Supreme Court refused to accept the plea of ignorance of the notification issued by the RBI on November 24, 1962 imposing restriction on the transit of gold to a place outside the territory of India and held the accused, a French national, who left Zurich on his way to Manila November 27, 1962 liable for violating the said notification, when his plane landed in Bombay.
Acts done under order of a superior authority
Every act done under orders of superior authorities is not protected under this section. Where the orders of the superior authority are illegal, it will not save the subordinate officer from liability. Where a police constable shoots and kills another under the order of his superior officer, he cannot escape from criminal liability because the order was obviously illegal and he was aware of the illegality of the order.
IN STATE OF WEST BENGAL V. SHEW MANGAL SINGH
The case of the prosecution was that the deceased and his brother were shot dead by the police at point blank range and brutally murdered. According to the defence version, the accused police officers were on patrol when they were stacked by mob. When an assistant commissioner of police was injured in the mob violence, order were given by the deputy commissioner of police to open fire. The accused constable were bound by law to obey the orders of the superior officer. Both the Calcutta High Court and the Supreme Court held that the situation warranted and justified the order to open fire and hence, the accused was entitled to the protection of section 76.
IN DAKHI SINGH V. STATE
The accused arrested the deceased who was suspected of being a thief, and the deceased resisted the arrest. The accused used force which resulted in his death. Though section - 46, CrPc, lays down that a police officer can use all means necessary to effect arrest, it also states that it does not give the right to cause death of a person who is not accused of an offence who is not accused of an offence punishable with death or imprisonments for life so, it was held that since the deceased was only suspected of theft, section 76 and 79, IPC did not justify that shooting the person dead.
Justified by law -
Section - 79 protects Acts which are justified by law or are bonafide believed, by mistake of fact to be justified by law. It exonerates the doer because of his bonafide belief, although mistaken, that eliminates his culpability. It comes into play only when there is a real or supposed legal justification for a person in doing the act complained of and that the some was done with an intention of advancing the law to the best of his judgement exerted in good faith.
An act wholly justified by law does not amount to an offence at all in view of the provisions of section - 79.
IN STATE OF ANDHRA PRADESH V. N. VENUGOPAL
The accused were all policemen, they arrested a person on the suspicion that he had received some stolen property and was involved in house breaking three days later the arrested person was found dead with number of injuries. The accused were charged with offences under section - 348, 331 and 201 of the IPC. The trial court convicted the accused. On appeal, the High court, believing that whatever the police officer does in investing a crime is justified, set aside the order of conviction passed by the trial court, the state preferred an appeal to Supreme Court.
The Supreme Court held that the act of beating or confining or sending away an injured person had no relation to the process of investigation. It reserved the judgement of the High court and convicted all the accused.
GOOD FAITH -
One of the essential ingredients required for an accused to get the protection of section 76 and 79 is that the action must be done in ‘good faith’. Section - 52, IPC, defines the term ‘good faith’.
It reads, “nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.
Section- 3 (22) of the General Clauses Act, 1897 defines the very same term in a positive manner: -
“A thing shall be deemed to be done in ‘good faith’ where it is infact done honestly, whether it is done negligently or not”
Under the General Clauses Act, the stress is on the moral element of honesty and right motive. If the intention is honest, then even if the act was negligent, it is deemed to be done in good faith.
IN HARBHAJAN SIGH V. STATE OF PUNJAB -
In this case the accused published a statement stating that the son of S. Pratap Singh Karon (the chief Minister of Punjab), was not only a leader of smugglers, but also was responsible for a large number of crimes being committed in Punjab.
A complaint was filed against the accused by the son (Surender Singh) stating that the press statement was highly defamatory.
The accused claimed the protection of the 9th exception of section- 499 IPC, as he made the statement in good faith and for the public good. The court held that some members of the Punjab Legislative Assembly had also made some similar statements on the floor of the house. Apart from this the accused produced material to show that the complainant was closely associated some smugglers and her also personally insured that case against them were withdrawn. There were also confidential report of Punjab University wherein there were record to show that the complainant threatened students with sticks in the college campus. The Supreme Court held that the accused acted in good faith. There was no dispute that the statement was also made for good faith.
Supreme Court observed that :
Good faith requires not indeed logical infallibility, but due care and attention.But, how far erroneous actions or statements are to be imputed to want of due care and caution must, in each case, be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question.
IN CHAMAN LAL V. STATE OF PUNJAB
A complaint was made by a nurse attached with a civil dispensary against the accused, who was the President of the Municipal committee at the relevant point in time. He wrote a letter to the civil surgeon on the basis of allegations made by leading man of all communities that the complainant had a very bad reputation having illegal relations with a cycle repairer. The letter written by the accused indicated that he set his seal of approval to the matters contained in that letter. There was no proof that he made any inquiry about the facts or that he acted with reasonable care. On the contrary, the court held that the accused acted without sense of responsibility and propriety. Being the President of the Municipal Committee, he was required to act with utmost prudence and caution. His conviction was upheld.
Section 77: Act of Judge when acting judicially. —Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
Section 78 : Act done pursuant to the judgment or order of Court.—Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
The logic behind giving personal immunity to a judge under section-77 is explained by Hari Singh Gaur. He observed: -
Judges and judicial officers have in all ages been the target of malice and spite. Their function often leads to exhibition of temper and feeling of retaliation. It, therefore, judges had been placed on the ordinary footing as regards the defence of their acts or conducts, they would soon have forsaken their legitimate duties in order to find time to vindicate themselves. Moreover, their exposure to the to the shaft of unsuccessful party of the condemned convict would have made their position one of considerable peril and precarious advantage. For no one would come forward to seek a situation in which his very fearlessness and independence would make him the butt of unscrupulous attack and organised opposition.
Judicial acts are not confined to the acts done in open court but also include orders passed in chambers. A person obtained bail but failed to furnish securities and so he was detained in custody. He filed a suit for damage against the magistrate. It was held that the magistrate was protected under the “Judicial Officers Protection Act” which is analogous to the Section 77 and 78 of IPC.
IN RAM PRATAP SHARMA V. DAYANAND
A judge of the Punjab and Haryana High Court visited a sessions court and also met members of the Bar. While addressing the members of the Bar, he criticised the government policy and openly attacked the government in its political and administrative decisions. The members of the Bar wrote a letter to the prime minister and the Chief Justice of India stating that the action of the judge was not like a judge, but like a politician expressed their regret over, it and urged the government to take appropriate action in this regard. A contempt notice was issued by the Punjab and Haryana High court against the signatories to the letter.
On appeal, the Supreme Court held that if any judge addresses on political problems or controversies, the judge exposed himself to discussion by public. The judge in such a case cannot take shelter behind his office. It is no part of the duty of a judge nor is it a duty in the discharge of the office of a judge to go and address a meeting on political matters. Since, the views expressed in such meeting are his personal opinion, the protective umbrella of the courts cannot be used by way of bringing charges of contempt proceedings be dropped.
IN DAYA SHANKAR V. HIGH COURT OF ALLAHABAD
A judicial officer was found copying while writing his first semester LLM examination. The Supreme Court held that the conduct of the petitioner was unworthy of a judicial officer. According to the court, judicial officer cannot have two standards one in the court and another outside the court. They must have only one standard of rectitude, honest and integrity. It upheld the dismissal of the petitioner from judicial service.
Accident and Misfortune
Section-80: Accident in doing a lawful act
Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
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 the part of A, his act is excusable and not an offence.
Section-80 exempts a person from liability if the act is done accidentally, by misfortune, without any criminal intention or knowledge and the accident occurs while doing a lawful act in lawful manner and by lawful means, wherein due care and caution is exercised. It exempts the doer of an innocent or lawful act in an innocent and lawful manner from any unforeseen result that may ensure from accident or misfortune. An accident or misfortune will operate as an exonerating factor, if it is shown that:
1. The act was a mere accident or misfortune,
2. The act was not accompanied by any criminal intention or knowledge,
3. It was an outcome of lawful act done in a lawful manner by lawful means,
4. It was done with proper care and caution.
If either of these elements are wanting the act will not be excused on the ground of accident.
In State Government of Madhya Pradesh V. Rangaswamy
The accused fired at an object of 152 feet. To his horror, he found that he had shot at a human being. The accused pleaded that he was under the bonafide impression that the object fired at was a hyena that he saw the previous day. At the time of shooting, it was raining and hence he did not expect a man to be present at heplace in question. It was held that the act of causing death was purely an accident and the accused was protected under S. 80.
In Girish Salkia V. State of Assam
The accused was attacked by his brother in the night when he was asleep. The Brother attempted to strangulate and punch the accused. The two brother started scuffling and rolled out of the room. The accused got hold of a bamboo and tried to strike his brother. But suddenly their father intervened and the bamboo blow aimed at the brother accidentally fell on the head of the father. The father Succumbed to the injuries and died. The Gauhati High Court held that the accused had committed no offence as the case was covered by(the exception) s.80 and acquitted him.
Proper care and Caution
The accidental act should not only by without any criminal intention and a lawful act, but the said lawful act should also have been exercised with proper care and caution. What is expected is not the utmost care, but sufficient care that a prudent and reasonable man would consider adequate, in the circumstances of the case.
In BhupendrasinhAChudasama V. State of Gujrat
The accused constable, along with the head constable was on patrol duty at a dam site which was in danger on account of heavy rainfall. The accused took the plea that he saw a fire and hence fired. The accused shot at close range without knowing the identity of his target. The Supreme Court held that the act was done without any care and caution. His conviction for murder was upheld and. He was sentenced to life imprisonment.
In Shankar Narayan Bhadolkar V. State of Maharashtra
The Supreme Court refused to give benefit of s.80 to a person who picked up a gun, unlocked it, loaded it with cartridges and shot deed, from a close range, one of the invites for dinner of his place. It held that act of the accused was without proper care and caution, and deliberate.
Section 81; Act likely to cause harm, but done without criminal intent, and to prevent other harm.
Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.
It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
(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 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 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 the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be 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 C.
(b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be 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.
DOCTRINE OF NECESSITY
Section-81 of the IPC recognises and embodies the doctrine of necessity as a defence against criminal liability. In other words, the law has to be broken to achieve a greater good.
Section-81 IPC, embodies the principle that were the accused chooses lesser evil, in order to avert the bigger, then he is immune.
The genesis of the principle enmates from Two maxims:
1. Quodnecessitas non habetlegem - necessity knows no law.
2. NecessitasVincitlegem - necessity overcomes the law.
Preventing or avoiding other harm
The immunity from criminal liability under s81 will be available where an offence is committed without any criminal intention, to cause harm and in good faith and if such offence is committed for the purpose of preventing or avoiding other harm to person or property. In order to attract s.81, it is necessary to show that the act complained of was done in good faith in order to prevent or avoid greater harm to the person or property of others.
In Bishambhar V. Roomal
In this case wherein the complainant who misbehaved with a Chamar girl, and who agreed in writing to abide by the decision of the panchayat, was taken around the village with blackened face and was given a shoe beating, the Allahabad High Court ruled that members of the panchayat were not guilty for their acts alleged contrary to ss. 323 and 506 of the IPC as they acted “without any criminal intention” , to save the complainant of his own misbehaviour.
Necessity as a reason for homicide
In United States V. Holmes, the accused was a member of the crew of a boat after a shipwreck. Fearing that the boat would sink, he under the orders of the mate, threw 16 male passengers overboard. The accused, though not convicted for murder, was convicted for manslaughter and sentenced to six month imprisonment with hard labour.
In a English Case, R v Dudley and Stephens, the crew of yacht, ‘Mignonette’, were cast away in a storm and were compelled to put an open boat, which had no water or food. On the Twentieth day, having had nothing. to eat for eight days, and being 1000 miles away from land, two of the crew (Dudley and Stephens) agreed that the cabin boy, who was likely to die first, should Be killed to feed themselves upon his body, and one of them carried out the plan. The men ate His flesh and drink his blood for four days. They were then rescued by passing vessel and were subsequently charged with murder.
Section - 82 and 83 IPC confer immunity from
criminal liability on child offenders. This immunity is based on the principle of juvenile justice.
Section 82 - Act of a child under seven years of age.
“ Nothing is an offence which is done by a child under seven years of age ”.
Section 83 - Act of a child above seven and under twelve of immature understanding.
“ Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion ”.
Essential ingredients -
The following are the essential ingredients of sections 82 and 83. -
Act of a child under seven years of age –
section 82 presumes that a child below seven years is doli incapax, Which means he is incapable of committing a crime and can not be guilty of any offence. Section 82 totally absolves a child below 7 years of age from criminal liability.
In Hiralal Mallick. V. State of Bihar, the Patna High Court ruled that the boy of 7 years, who discovered a gold chain and did not report to the matter to the concerned authority, was protected under section 82 of IPC.
Act of the child above 7 years but below 12 years of age –
Section 83 presumes that a child above seven years but below twelve years of age is doli capax i.e. he is capable of committing a crime depending upon his maturity of understanding. Liability of such a child depends upon his maturity of understanding of the nature and consequences of his conduct and not on his age
However, once a court comes to a conclusion that the concerned child has not attained sufficient maturity of understanding, then the immunity conferred by section 83 is as absolute as that conferred by section 82.
‘The presumption of innocence of a child is based on the principle of immaturity of intellect. The younger the child in age, the lesser the possibility of being corrupt ’. Seems to be its premise.
This is to say, “ malice makes up for age ” i.e., quia malitia supplet aetatem. Hence, as the age advances the maxim looses force.
Beyond the age of twelve, there is no immunity from criminal liability, even if the offender is a person of underdeveloped understanding and incapable of understanding the nature and consequences of his Act. However, the treatment of all juveniles that is persons up to the age of eighteen is now govern by the juvenile justice (care and protection of Children) Act 2015.
Maturity of understanding –
Section 83 stipulates that when a child accused of an offence is above seven and under 12 years, the court has to ascertain if the child has sufficient maturity of understanding, so as to understand the nature and consequence of his conduct. The word, ‘consequence of his conduct’ do not mean penal consequence but the natural consequences with result from his act. Before convicting a child who is over seven years but under 12 years of age, a judge is required to first conduct an enquiry and give a finding of facts as to whether the child had attained sufficient understanding to judge the nature of consequence of his act.
Determination of age of an accused juvenile - one of the major questions which confronts the courts in respect of juveniles is the determination of age of a juvenile accused of a crime. This question was finally put to rest in 2005 In Pratap Singh V. State of Jharkhand. A constitution bench of five judges of Supreme Court held that the reckoning date for the determination of the age of juvenile is the date of an offence committed by him and not the Date when he is produced before the juvenile board or the court. It accordingly ruled that the principle or law laid down in Umesh Chandra v. State of Rajasthan is the correct law and note the ruling in Arnit Das v. State of Bihar.
Bhola Bhagat V. State of Bihar
The Supreme Court observed that when a plea is raised on behalf of an accused that he was a child, at the time of the commission of the offence, it becomes obligatory for the court in cases, where there is any doubt about the age as claimed by the accused, to hold an enquiry for determination of age. Keeping in view the beneficial nature of the socially oriented legislation, it is an obligation of the court when such a plea is raised, to examine that Plea with care, and it cannot fold its hands without returning a positive finding in that regard.
The apex court also directed the high courts to issue administrative directions to the subordinate courts that whenever such a plea is raised before them and if they entertain any reasonable doubt about the correctness of the plea, they must, as a rule, conduct an inquiry by giving Opportunity to the parties to establish their respective claims and return a finding regarding the age of the concerned accused and then to deal with the case in the manner provided by law.
Section 84 - Act of a person of unsound mind
‘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 law’.
Insanity is one of the general exception to criminal liability recognised by the IPC this is based on the principal of the maxim “actus non facit reum nisi mens sit rea”. Which means an act in itself is not a crime unless backed by a guilty mind.
The term unsoundness of mind has not been defined in the IPC. it means a state of mind in which an accused is incapable of knowing the nature of his act or that he is incapable of knowing that what he is doing is wrong or contrary to the law.
A person can be said incapable of knowing ‘nature’ of the act if he, at the time of doing it, was ignorant of the physical characters of the act. A good illustration is to be found in the case, mentioned by Sir James Stephen, of the idiot who cut off the head of a man whom he found sleeping because, as he explained, it would be such fun to watch him looking about for his held when he awoke. It is quite certain that he had no idea that his fun would be lost, because the man would never awake.
If at the time of committing the offence the accused knew the nature of the act, he is obviously punishable.
Kinds of insanity -
Insanity can be divided into two broad heads, namely:
(a) Dementia naturalis, i.e individuals who are insane from birth, and
(b) Dementia adventitia or acccidentialis, i.e, an individual who becomes insane after his birth.
Unsoundness of mind at the time of committing the offence -
One of the main points to be highlighted under this section is that the law is concerned only with insanity that existed at the time of committing the offence. The existence of unsoundness of mind prior to the commission of the offence or after the commission of the offence is neither relevant nor per se sufficient to bring his case within the exception provided by section 84, though it may be taken into consideration for the purpose of deciding whether the accused was insane. What is crucial for him is to establish that he was insane at. The time of committing the offence.
In Ratan Lal v. State of Madhya Pradesh, the accused was in the habit of setting fire to his own cloths and house. It was held that this could hardly be called rational and was more likely verging on insanity. The Supreme Court accepted the plea of inanity raised by the accused and absolved him of criminal liability.
In Shrikant Anandrao Bhosale v. State of Maharashtra, the accused killed his wife by hitting on her head with a grinding stone when She was washing cloths. He took the plea of insanity as a defence. The trial court and the Bombay High court rejected it. He contended before the Supreme Court that he was entitled to the benefit of section 84, as he, at the time killing his wife, was insane. In support of his contention, he relied on his past psychiatric treatment and the testimony of two medical specialists who prepared his medical record and stated that he suffered from suspicious ideas, persecutory delusions, loss of sleep and was a paranoid schizophrenic. There was also a history of psychiatric illness in the family of the accused. In the light of these circumstances, the apex court gave him the benefit of section 84 by holding that a paranoid schizophrenia is a mental disease that can recur and the sufferer may not be fully aware of his acts and the consequences thereof.
Presumption of Insanity
It is important to remember that the plea of insanity is a defence against criminal responsibility. It must, therefore, be established by the defence. The Courts will presume that every person is sane and in full control of all his faculties, until the contrary is proved.
Section 85 - Act of a person incapable of judgment by reason of intoxication caused against his will —
“Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will”.
Section 86. Offence requiring a particular intent or knowledge committed by one who is intoxicated —
“In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will”.
Note- Section 85 covers involuntary intoxication. Whereas, section 86 covers voluntary intoxication. The part “.. unless the thing which intoxicated him was administered to him without his knowledge or against his will” in section 86 creates confusion. This part is already covered under section 85. So, the section 86 simply means that a person is liable for the offences which require particular intent or knowledge, even if the person is intoxicated. But if the person is intoxicated against his will, there shall be no liability as already stated in section 85.
Alcohol is quite strangely associated with crime of violence. It impairs perception, reasoning, and the ability to foresee consequences. A man who commits a crime under the influence of alcohol may have otherwise led a normal and responsible life. His acts committed under the influence of alcohol may not reflect his real character.
Convicting a person who commits a crime under the influence of alcohol like all other offender may appear to be harsh. On the other hand, it is not uncommon for offenders to consume alcohol before committing an offence. Hence, it may not be in the interests of the general society to treat intoxication as a general defence.
Section 85 and 86 of the IPC deals with intoxication as an estimating factors.
Involuntary intoxication —
Section 85 protects a man from criminal liability, if at the time of committing the offence, he was incapable of knowing the nature of the act or that he was doing something wrong or contrary to law by a reason of intoxication, provided that the intoxication was administered to him “without his knowledge” or “against his will”.
Incapable of knowing the nature of the Act -
For the defence of Intoxication to be available under section 85, it must not only be established that the intoxication was administered without his knowledge or against his will, but also by reason of such intoxication the person concerned was incapable of understanding the nature of the act or that he is doing what is either wrong or contrary to law.
Without the knowledge’ or against his will’ —
The term ‘without his knowledge’ or ‘against his will’ denote that it should, be involuntary intoxication. The expression ‘without his knowledge’ means that the person concerned is ignorant of the fact that what is consumed by him is an intoxicant or is mixed with an intoxicant. In other words, he must be totally unaware that whatever was administered or given to him will have any intoxicating effect. The word ‘against his will’ means that the person was forced or coerced into consuming an intoxicant. Normal persuasion acting as an incentive is not covered by the expressing against his will, unless there is an element of compulsion to consume the intoxicant against his will.
In Basdev V. The state of Pepsu, a retained military officer was charged with the murder of a young boy aged above 15 years. Both of them and others of the same village attended a marriage party. All of them went to the house of the bride to take the midday mill. The retired officer, who was vary drunk and intoxicated, asked the young boy to step aside a little so that he could occupy a convenience seat. But, when he did not move, the officer whipped out a pistol and shot the boy in the abdomen. The injury proved fatal.
All of these fact, according to the Supreme Court, went to prove that there was no proved incapacity in the accused to form the intention to caused bodily injury sufficient in the ordinary course of nature to cause death. In view of his failure to prove such incapacity, the court presume that he intended the natural and probable consequences of his Act. The accused was found guilty of murder.
In Mavari Surya Sathya Narayan. V. State Of Andhra Pradesh, the accused and the deceased were married for 11 years. He was an alcoholic and quarreled often with her. One day after taking his meals, he went outside and return home with the brandy bottle and after consuming it, he started scolding the deceased by stating that he sustained loss as he married the daughter of his maternal uncle. He asked her to sign on blank paper saying that he would write whatever he liked on the papers. When she refused, he became wild and began beating her. When she tried to go out of the house, he caught hold of her hair and dragged her in to the room. He close the door and attempted to set her on fire she put out the flames and tried to run away. The accused again pulled her, poured kerosene and set her on fire, and she ultimately died of the burns. The Andhra Pradesh ‘High Court’, relying on the Basdev dictum held that having regard to the facts, it cannot be said that the accused was in total loss of mental power and hence the provision of 86 would not apply.
Burden of Proof -
To avail the protection of section 85, it is required for an accused to prove that the intoxication was not voluntarily and that he by reason of intoxication, lost the mental equilibrium to distinguish a right from wrong or nature of the Act committed by him. Both the questions of involuntary nature of intoxication, as well as its effects on his mental faculties, are question of facts that need to be established by an accused. Evidence of drunkness short of requisite mental deprivation disentitled him the protection of umbrella of section 85.
Consent and compulsion (sec 87-93)
Volunti non fit injuria an old roman maxim , which means that harm caused with consent can not be considered an injury, plays some role in criminal law. Section 87 to section 93 of IPC deal with consent as general exception.
What is consent ?
The word consent has not been defined in the IPC however, section 90 of the IPC describes as to what does not amount to consent. It describe consent in negative manner. It states
Section 90. - Consent known to be given under fear or misconception. - A consent is not such a consent as is intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Thus section 90, ultimately, provides that consent to be a ground for avoiding criminal responsibility is required to be a real consent and not vitiated by fear, fraud or, immaturity.
Acts done by consent
Section 87, 88 and 89 of the code deal with various aspects of acts done with consent, which, but for consent given, would amount to offences.
Intentional Death or Grievious Hurt may not be caused with consent -
Section 87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent.—
“Nothing, which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm”.
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; and if A, while playing fairly, hurts Z, A commits no offence.
Section 88. Act not intended to cause death, done by consent in good faith for person's benefit.—
“Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm”.
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.
Section 89. Act done in good faith for benefit of child or insane person, by or by consent of guardian.-
“Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person”: Provided—
First.—That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;
Secondly.—That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
Thirdly.—That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity;
Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
A, in good faith, for his child's benefit without his child's consent, has his child cut for the 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, in as much as his object was the cure of the child.
Section 92. Act done in good faith for benefit of a person without consent.—
Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided—
Provisos. First.—That this exception shall not extend to the intentional causing of death, or the attempting to cause death;
Secondly.—That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
Thirdly.—That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
(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 that the shot may kill Z, but not intending to kill Z, and in good faith intending Z's benefit. A's ball gives Z a mortal wound. A has committed no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence.
(d) A, is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the top of the house, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child's benefit. Here, even if the child is killed by the fall, A has committed no offence.
Explanation.—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.
In M Natesan v. State of Madras
When a child below 12 years is sent by its parent to guardian to a school, it is presumed that the parent or the guardian gives his implied consent to put the child or ward under the discipline and control of the school authorities and to inflicts, if necessary, reasonable punishment on the child for maintaining school discipline or correcting it.
Section 91. Exclusion of acts which are offences independently of harm cause.—
The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is 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 of her guardian to the causing of such miscarriage does not justify the act.
Section 93. Communication made in good faith.—
No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in 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.
Section 94. Act to which a person is compelled by threats.—
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 became subject to such constraint.
Explanation 1.—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 a gang of dacoits, and forced, by 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 for the dacoits to enter and plunder it, is entitled to the benefit of this exception.
Section 95. Act causing slight harm.—
Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
This section is based on the principle ‘de minimis non curat lex’ which means the law does not concern itself with trifles.
According to Shamshul Huda -
No reasonable man complains of trifles. No man can pass through a crowded thoroughfare without treading on somebody’s toes or without clashing against somebody and no reasonable man would complain of such small annoyances. ‘De minimis non curat lex’ is an old doctrine of roman law. The provision is unnecessary for ordinary men, but there are eccentric people all over the world, and it is to guard against eccentricities that a formal provision of law of this kind is needed.
A state is under obligation to protect life, limb and property of its subjects. But no state in the world is so resourceful that it can provide a police man to every citizen for protecting his body and property. Thus, a state can never extend its help to all that all times and in all cases. In such a situation, an individual is bound to help himself or to protect himself and his property. He is neither expected to surrender nor to flee, but to hold his ground and to quell the eminent threat or to repel it. He is entitled to stay and overcome the threat. Obviously , he is expected to use force that is just required to counter the danger or until the state comes to his rescue.
Basis of the right of private defence -
The right of private defence is based on the cardinal principal that it is the primary duty of a man to help himself. Self-preservation is the prime instinct of every human being.
‘Bentham’ in his principle of penal code says - the right of defence is absolutely necessary. The vigilance of magistrates can never make up for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad man as the fear of the sum total of individual registrant. Take away this right and you become in so.
The right of private defence serve a social purpose. It not only restrains bad character but also encourages the right sprit in a free citizen.
The law of private defence of body and property in india is codified in section 96 to 106 of IPC, which are ostensibly based on the idea that the right of self-preservation is a basic human instincts.
General Principles -
Section 96 Things done in private defence.--
‘’Nothing is an offence which is done in the exercise of the right of private defence’’.
Section 97 Right of private defence of the body and of property —
“Every person has a right, subject to the restrictions contained in section 99, to defend”-
First.--His own body, and the body of any other person, against any offence affecting the human body;
Secondly.--The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Right of private defence is a defensive right not a punitive right. It is basically preventive in nature and not punitive. It is neither a right of aggression nor a reprisal. It’s exercise can not be vindictive or malicious. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survives. A person is not entitled to use the violence that is disproportionate to the injury which is to be averted or which is reasonably apprehended. The movement a defender exceeds it, he commits an offence.
Ram Ratan v. State of Bihar
When a person seized cattle on the ground that they were trespassing on his land and causing damage to the crop and took them to the pound, it was held by the Supreme Court that he was not committing theft and hence when he was attacked by the owners of the cattle who obstructed him, the person had the right of self-defence against the obstructers. The obstructing party could not have had any right of private defence and cannot rescue the cattle by force in as much as the act of talking the cattle to the pound is not an offence.
Nabia Bai v. State of Madhya Pradesh, the accused along with her mother and sister were weeding their crop when the deceased passed through the neighboring field. The deceased then came into the field and attacked all three of then with a knife. There was some grappling and the accused managed to get hold of the knife held by the deceased and inflicted injuries resulting in the death of the deceased. The Supreme Court observed that the accused had neither motive nor any intention to kill the deceased. She only want to save herself from an armed intruder who had inflicted knife injuries on her. The accused was acquitted.
Right to private defence is not available to the aggressor. No aggressor can claim the right of private defence.
Munnu v. State of Uttar Pradesh
In this case When the deceased were going to the market, they were way laid and attacked by the accused with dangerous weapons although, there were injuries cause on the side of the accused party as Well as there was also the loss of life, the Supreme Court rejected the plea of self defence, holding that the accused being the aggressors were not untitled to the right of private defence.
The right of private defence also not available against lawful acts
The right of private defence arises only in the situations where there is an unlawful aggression against the accused. In order to repel such unlawful aggression, the right of private defence can be exercised.
Kanwar Singh V. Delhi Administration, A raiding party possessing authority under a section of the Delhi Municipal corporation Act, seized the stray cattle belonging to the accused. The accused resisted the seizure of the cattle and inflicted injuries on the raiding party. Since, the raiding party was carrying our a lawful act, it was justified in law to seize the cattle, no right of Private defence was available to the accused. Accordingly, he was convicted.
Unlawful Assembly And Private Defence
When five or more persons come together to form an assembly, in order to assert their right of private defence either in respect of their person, body or property, such as an assembly cannot be termed to be an unlawful assembly. But when these person use unlawful force (i.e. when they do not act in self-defence), they constitute an unlawful assembly.
In State of BIhar v. Nathu Pandey, C was in a possession of a plot of land. There were Mahua trees standing thereon. C along with his party went to the plot with the object of preventing the theft of Mahua fruits by the other party in exercise of their right of private defence of their property. In the altercation that followed, two person from the other party received fatal injuries which resulted in their death. The Supreme Court held that an assembly could not be designated as an unlawful assembly, if its object was to defend property by the use of force within the limit prescribed by law. The object C’s party was to prevent the commission of theft of the Mahua fruits in exercise of their right of private defence of their property. Hence, they could not be termed as an unlawful assembly and made constructively liable for the act of other.
Section 98. Right of private defence against the act of a person of unsound mind, etc.—
When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. 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 this 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 that misconception.
If a drunken man breaks law and attacks either the person or property of other people, any member of the public is entitled to exercise the right of private defence against such attack, even the drunken man himself is entitled to the protection of law Section 98 is based on the fact that the right of private defence arises from the human instincts of self-preservation and not from any supposed criminal liability of the person who poses danger to body and property. The illustration to Section are self explanatory.
Plea of Self Defence -
It is not necessary for the accused to raise the plea that he acted in exercise of his right of private defence. Where a plea of private defence is raised it is the duty of the court to examine the same in the light of the evidence and material before it. Only when the plea is not established, the accuse can be convicted of the offence.
In Munshi Ram. V. Delhi Administration
The Supreme Court has held that although the accused had not taken the plea of private defence in their statement, necessary bases for that plea has been made in the cross examination of the prosecution witness, as well as by adducing defence evidence. It has been observed that even if an accused does not plead self-defence, it is open to the court to consider such plea if the same arrises from the material on record.
In Moti Singh v. State of Maharashtra
The Supreme Court ruled that a person can not be denied of the benefit of the right of private defence merely because he failed to plea it or took a different line of defence during the trial, if the evidence adduced by the prosecution indicates that he was put under a situation where he could reasonably have apprehended danger to his body. The Crucial factor is not but the accused pleaded, but whether he had the caused to reasonably apprehend danger to body.
Burden Of Proof -
Section 105 of The Indian Evidence Act 1872. The evidence Act requires that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the ‘general exceptions’ or ‘special exception’ or proviso contained in or proviso contain in any part of the IPC is on him and the court shall presume the absence or such circumstances. This presumption is rebuttable. It, thus, puts the burden of proving the existence of circumstances which would bring the act of the accused alleged to be an offence within the exercise of private defence is on him and the court shall presume the absence of such circumstances.
section 99 Acts against which there is no right of private defence.—
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.
Extent to which the right may be exercised.—The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
Act of public Servants
The section provides that no right of private defence is available against action of a public servants or actions under the direction of a public servant. If it is done in good faith under colour of his office though that action or direction may not be strictly justifiable by law. However, this protection given to lawful acts of public servants or person acting under their directions will not apply in cases where the actions of the public servant cause a reasonable apprehension of death or of grievous hurt to the parties concerned.
In other words, even if a government servant is doing an act in good faith under colour of his office, if his act is such that it causes a reasonable apprehension that it will result in death or grievous hurt of parties, then the parties are entitled to exercise their right of private defence against public servants.
Section 100. When the right of private defence of the body extends to causing death.—
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—
First.—Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly.—Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly.—An assault with the intention of committing rape;
Fourthly.—An assault with the intention of gratifying unnatural lust;
Fifthly.—An assault with the intention of kidnapping or abducting;
Sixthly.—An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
[Seventhly.—An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.]
Balbir Singh v. State of Punjab
It was held that section 100 authorises and justifies the taking away of life of a person in the exercise of the right of self defence, if for condition exist -
1. The accused must be free from fault in
bringing about the encounter.
2. Here must be present an impending peril to
life or great bodily harm, either real or so
apparent as to create honest belief of an
3. There must be no safe or reasonable more or
escape by retreat.
4. There must have been a necessity for taking
In Deo Narain v. State of Uttar Pradesh
It was held where the lathi blows were aimed at a vulnerable part of the body Like the head, it was held by the SC that the victim were justified inclusive spear to defend himself and as a result cause the death of the deceased.
In Sekar v. State of Rajasthan
A plea of right of private defence can not be based on surmises speculation. The accused must be under a bona fide fear that death or grevious hurt would otherwise be the consequence of the assault if he does not defend. Killing him the exercise of right of private defence would be justified only if there was no honest and well founded belief in the imminence of the danger. It is not essential that actual injury should be caused by the aggressor or the victim before the right of self-defence can be availed of person apprehending danger is not required to wait for sustaining injury. Mere reasonable apprehension is sufficient for exercising the right of private defence.
In Amjad Khan v. State
A communal riots broke out between the Sindhi refugees and the local Muslim. Several Muslim shops has been broken and looted and many killed. The mob had broken in to another part of the house where the accused lived and looted, the women and children of his family plead to the accused for protection. The mob was actually beating as his door with Lathis. Under these circumstances, the Supreme Court held That it was not necessary for the accused to wait and see if the mob actually would or not destroy and loot his shop and kill his family. The threat was implicit. In the conduct of the mob and the accused had a right of private defence and was justified in firing too shots which resulted in the death of one person.
Assault With intention of committing Rape or gratifying Unnatural Lust -
Clause ‘thirdly’ and ‘fourthly’ of section 100 provide that the right of private defence of body extends to causing death in cases of assault with intention of committing rape or gratifying unnatural lust.
In Yeshwant Rao v. State of Madhya Pradesh
The minor daughter of the accused had gone to the toilet on the rear side of the house. The deceased caught and held sexual intercourse with her. The accused seeing his minor girl being raped by the deceased, hit the deceased with a spade. The deceased on trying to flee also fell and hit himself course of he died due the injury of the liver. The prosecution case was that the minor girl had consented to the sexual intercourse. The Supreme Court held that since the girl was a minor, the caution of ‘consent’ does not arise as the act of the deceased the amount to committing rape under ‘section 376’ and hence, the father in defence of the body of his daughter, was justified in exercising his right of private defence. The accused was acquitted.
Assault with Intention of Kidnapping or Adducting
Clause ‘fifthly’ of S.100 provides that the right of private defence of the body extends to causing death in case of assault with intention of kidnapping or abducting.
In Vishwanath V. State of Uttar Pradesh
The accused sister was staying with her father and brother (the accused) because she did not want to live with her husband. The deceased husband came to the house of the accused and tried to drag his wife away. The girl caught hold of the door as she was being taken out and a tug-of-war followed between her and her husband. At this stage, the accused (the brother of the wife) took out a knife and stabbed the deceased (the Husband) once. The knife penetrated the heart and he fell down senseless and thereafter died. The accused, put up the plea that his case would come under fifth of Clause of S.100.
The prosecution contended that Ss. 364-369 of the IPC do not make abduction a pure and simple crime. As per these clauses, abduction coupled with certain intents such as murder, wrongful confinement is alone an offence. So, the right of private defence under clause fifthly’ of S.100 will be available only when the abduction is with some other intent. If it is just abduction, the benefit of S.100 is not available.
The Supreme Court rejected this argument and held that the clause merely requires that there should be an assault, which is an offence against human body, and that assault should be with the intention of abducting. The apex court acquitted the accused.
Commencement and Continuance of The Right of Private Defence of The Body
Section 102- Commencement and continuance of the right of private defence of the body.
The right of Private defence of the body 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.
The danger or the apprehension of danger must be present, real or apparent. The right of private defence is available when one is suddenly confirmed with immediate necessity of averting and impeding danger that is not his creation. Further, the right of private defence continues as long as such apprehension of danger to the body continues. Thus, the right of Private defence is co-terminus with the commencement and existence of a reasonable apprehension of danger to commit the offence. So, when the accused after a grappling incident, murderously assaulted a fleeing party, it was held that the supposed danger come to an end when he attacked the deceased and when the danger was over, the accused’s right to private defence got over as well. The accused had no right to chase and kill the deceased.
Right of Private Defence Extends to the causing of Unavoidable harm to innocent persons
Section 106- Right of private defence against deadly assault when there is risk of harm to innocent person-
If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot 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.
Section 100, IPC provides that when there is a deadly assault on a person which cause a reasonable of death and his right of private defence cannot be effectively exercised without causing harm to an innocent person, then in such situations, any harm caused to innocent person, then in such situations, any harm caused to innocent persons is also protected by law. In other words, in the exercise of the right of Private defence, if some innocent person is killed or injured, law protects the man exercising the right of private defence by exempting him from criminal. Liability. The illustration to the section is self- explanatory.
In Wasan Singh V State of. Punjab
There was a fight between two groups. The accused received nine injuries. He shot at the assailants with his gun, which however, hit an innocent woman bystander, killing her. The Supreme Court held that the accused had the right of private defence and hence he was acquitted.
Section 101- When such right extends to causing any harm other than death-If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.
Section 103- When the right of private defence of property extends to causing death.-
The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—
Secondly.—House-breaking by night;
Thirdly.—Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
Fourthly.—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.
Section 104- When such right extends to causing any harm other than death.-
If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.
Section 105- Commencement and continuance of the right of private defence of property.-
The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.