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UNIT III
IPC
The Indian Penal Code, 1860 recognizes defenses in chapter four under the heading ‘General Exceptions.’ Sections 76 to
106 of the IPC cover these defenses. The law offers certain defenses that exculpate criminal liability. These defenses are
based on the premise that though the person committed the offense, he cannot be held liable. This is because, at the time of
the commission of the offense, either the prevailing circumstances were such that the act of the person was justified or his
condition was such that he could not form the requisite mens rea for the crime.
The defenses are generally classified under two heads - justifiable and excusable. Thus, for committing a wrong, a
person must be responsible for doing a wrongful act without having any justification or excuse for it.
Justifiable Act: A justified act is a one which otherwise, under normal conditions, would have been wrongful but the
circumstances under which the act was committed make it tolerable and acceptable. The person fulfills all the ingredients
of the offence but his conduct is held to be right under the circumstances.
Excusable Act: An excusable act is the one in which though the person has caused harm, it is held that a person should be
excused because he cannot be blamed for the act.
For example – if a person of unsound mind commits a crime, he cannot be held responsible for being mentally sick. In case
of an excusable defense, the actor is not punished as he lacks the necessary mens rea for the offence either by reason of an
honest mistake of fact, infancy, insanity or intoxication. There must be a disability to cause the condition that excuses the
conduct. A conduct is punishable not because the person acted in that manner but because he chose to act in that
manner. Excusable defenses are invoked when one cannot infer the bad character of a person from the act that he has
committed.
Classification of general exceptions
EXCUSABLE JUSTIFIABLE
A mistake of Fact under section 76 and 79.
An act of Judge and Act performed in pursuance of an order
under Section 77 and 78.
Accident under Section 80. The necessity under 81.
Infancy – Section 82 and 83. Consent under Section 87 – 89 and Section 90 and 92.
Insanity – Section 84. Communication under Section 93.
Intoxication – Section 85 and 86. Duress under Section 94.
Trifles under Section 95.
Private Defence under Section 96 – 106.
• Generally, Prosecution has to prove its case beyond reasonable doubt against the accused.
• Before the enforcement of the Indian Evidence Act 1882, the prosecution had to prove that the case does not fall under
any exception, but section 105 of Evidence act shifted the burden on the claimant.
• But in exceptions, as per Section 105 of Evidence Act, a claimant has to prove the existence of general exception in
crimes.
1. Mistake of fact (section 76 and 79)
The two sections exclude a person from criminal liability when they are ignorant of the existence of relevant facts or
have mistaken them and commit a wrongful act for which he neither could foresee nor intended the unlawful
consequence. It is important that the mistake must be reasonable and must pertain to the fact of the case and not the
law. This is derived from the legal maxim “ignorantia facti doth excusat, ignorantia juris non excusat”.
• Section 76 excuses a person from criminal liability who, in to good faith, commits an act which he believes he is
bound to do so under law, due to mistake of fact.
• Section 79 excuses a person from criminal liability who, in to good faith, commits an act which he believes he is
justified to do, due to mistake of fact.
• Section 76 – A person believes that he is under a legal compulsion to do such an act.
• Section 79- A person acts because he thinks there is a legal justification for the act he has committed.
It is always to be kept in mind that mistake relating to the facts in various case laws should be a mistake of fact, not a
mistake of law. The mistake of law is never excusable in any court of law because everyone is always expected to know
the law of the land.
In case Regina vs. Prince[L.R. 2 Cr. CAS. Res. 154 (1875)],
Facts: Defendant was convicted of taking an unmarried girl under 16 years out of the possession and against the will of
her father. The jury found that the girl had told the defendant she was 18, the defendant honestly believed the statement,
and his belief was reasonable.
Defendant’s argument: The statute has a requirement read into it that the prosecution must prove that the defendant
believed the girl he had taken was over 16.
State’s argument: The statute does not require this proof. The act of taking a girl out is wrong in and of itself – that is
the mens rea. It does not matter that he thought the girl was older. Just like it would not matter whether he knew or did
not know whether she is under 16. However, it would have mattered if he did not know the girl was in the custody of her
father.
Holding: Conviction affirmed.
Reasoning: The court interpreted the statute to require a strict liability application. The Common Law does not allow defenses to
strict liability.
In Chirangi vs. State[1952 Cr LJ 1212],
Facts- The accused one day took an axe and went with his son(deceased) to a nearby hillock (a small hill), known as
“budra mata” in order to gather some leaves and killed him, the appellant in a moment of delusion considered that his
target was a tiger and not his son, and he accordingly assailed it with an axe. The accused thought, by the reason of fact
that he was justified in destroying deceased, whom he thought was a dangerous animal.
Holding – The court accordingly held that in the circumstances the accused was protected by the provisions of section 79
of the Indian penal code and was hence acquitted of the charge of murdering his son, under section 302 IPC.
2. Accident
Section 80 exempts an accident that transpires while doing a legal act. In the absence of a criminal intent to do such an
act, it is absolved. When an accused causes injury to another person without having any criminal intention or knowledge
of doing so, the court will consider the incident to be an accident if the accused did not do so intentionally or negligently .
Nothing is an offence if it is committed:-
1. By accident
2. Without criminal intention or knowledge
3. While doing a lawful act
4. In a lawful manner
5. By lawful means
6. Where due care and caution is exercised.
In King Emperor vs. Timmappa [3 Bom LR 678], a Division Bench held that shooting with an unlicensed gun does not
debar an accused from claiming immunity under that section, of the Indian Penal Code. The appeal against the acquittal is
accordingly dismissed and the order of the trial Magistrate is upheld. The court is also of the opinion that there is no
reason why the sentence awarded under Section 19(e) of the Indian Arms Act should be enhanced. The respondent was
technically liable under that provision but no more; and all that he had done was to borrow for a few minutes a gun in
order to kill, as he thought, a wild animal which might have attacked him and his comrades. The application for
enhancement of the sentence is also dismissed.
3. Infancy (Section 82 and 83)
According to Section 82 of IPC, nothing is an offence where –
• Act is done by a child
• Under seven years of age
• There is Absolute incapacity for the crime under seven years of age. Presumption of law- Doli Incapax i.e. a child has
no discretion to distinguish right from wrong, thus criminal intention does not arise.
According to Section 83 of IPC, nothing is an offence where
• Act is done by a child between 7-12 years of age
• Has no sufficient maturity of understanding
• To judge the nature and consequences of his conduct is no offence.
Malitia Supplet Oetatem – Malice Supplies Age
If proven to have sufficient maturity of understanding, liability arises.
Section 84
Insanity is provided in accordance with Section 84 of the Indian Penal Code as a defence under Indian Law. However, the term
“insanity” is not used under this provision. The Indian Penal Code uses the sentence “mental soundness.” In accordance with
the code, the defence of insanity, or that can also be called defence of mental insanity, comes from M’Naghten’s rule.
In Section 84 of the Indian Penal Code, a person of an unsound mind shall act- Nothing is an offence committed by someone
who is currently unable to know the nature of the act or does what is wrong or contrary to legislation due to a lack of a sound
mind.
For this defence, the following elements are to be established-
1.The accused was in a state of unsoundness of mind at the time of the act.
2.He was unable to know the nature of the act or do what was either wrong or contrary to the law. The term ‘wrong’ is different
from the term ‘contrary to the law.’
If anything is ‘wrong’, it is not necessary that it would also be ‘contrary to the law.’ The legal conception of insanity differs
significantly from medical conception. Not every form of insanity or madness is recognized as a sufficient excuse by law.
Distinction between legal insanity and medical insanity
Section 84 of the Indian Penal Code sets out the legal responsibility test as distinguished from the medical test. It can be
observed that the absence of will arises not only from the absence of understanding maturity but also from a morbid state of
mind. This morbid mind condition, which provides an exemption from criminal responsibility, differs from the medical and
legal point of view. According to the medical point of view, it is probably correct to say that every person, when committing a
criminal act, is insane and therefore needs an exemption from criminal responsibility; while it is a legal point of view, a person
must be held to be the same as long as he is able to distinguish between right and wrong; as long as he knows that the act
carried out is contrary to the law.
In the case of Surendra Mishra v. State of Jharkhand[(2011) 11 SCC 495], I
t was pointed out that ‘every person suffering from mental illness is not ipso facto exempt from criminal liability.’
Furthermore, in the case of Shrikant Anandrao Bhosale v. State of Maharashtra[(2002) 7 SCC 748],
the Supreme Court, in determining the offense under Section 84 of the IPC, held that’ it is the totality of the circumstances seen in
the light of the recorded evidence’ that would prove that the offense was committed.’ It was added: “The unsoundness of the mind
before and after the incident is a relevant fact.”
Unsoundness of mind must be at the time of the commission of the Act.
In this case, the accused was a police constable. The wife was hit on the head with a grinding stone by the accused, and she was
immediately taken to the hospital but was found already dead. After investigation, the appellant was charged for the offence of
murder. Insanity was pleaded as a defence. The appellant had a family history where his father also suffered from mental illness.
The reason for such an ailment was not known. The appellant was undergoing treatment for this mental disease. It was observed
that the motive for the murder was quite weak. After killing his wife, the accused did not attempt to hide or run away.
Based on the above-stated facts, it was held that the accused was suffering from paranoid schizophrenia, and he was incapable of
comprehending the nature of the act committed by him. Therefore he was not guilty of murder and will be given the benefit of
section 84, IPC.
Usually, when there is adequate capacity to distinguish between right and wrong, the mere presence of an irresistible impulse
would not excuse liability. Irresistible impulse is not incorporated under insanity because it does not fall within the ambit of
Section 84 of the Indian Penal Code.
In the case of, Kannakunnummal Ammed Koya v. State of Kerala (1967), it was held that to claim an exemption under section
84, the insanity has to be proved, at the time of the commission of an act, mere losing of self-control due to excitement or
irresistible impulse provides no defence under Indian law even if this is proved in a court of law.
Mc’Naughten’s Rule
There have been several tests from time to time, like the Wild Beast Test, Insane Delusion Test, etc. But the most important is
the “Right and Wrong Test” formulated in M’Naughten’s case.
The hearing of M’Naughten and his release was a topic of discussion in House of Lords, and as a consequence, they called
upon fifteen judges to decide on the question of criminal liability in the cases where the accused is incapable of understanding
the nature of the act and also answered the questions advanced. Fourteen judges had the same answers. The view of the
majority was given by Tindal C.J., these answers to the questions are known as M’Naughten’s Rule. The following principles
were cited:
1.If the person knew what he was doing or was only under a partial delusion, then he is punishable.
2.There is an assumption that every man is prudent or sane and knows what he is doing and is responsible for the same.
3.To establish a defense based on insanity, it must be ascertained, at the time of perpetrating the act, the accused was in such a
state of mind as was unable to know the nature of the act committed by him.
4.A person who has sufficient medical knowledge, or is a medical man and is familiar with the disease of insanity cannot be
asked to give his opinion because it is for the jury to determine, and decide upon the questions.
Intoxication
Sections 85 and 86
Intoxication is a state of mind in which a person loses self-control and his ability to judge. Intoxication is a defence available to
criminal defendant on the basis that, because of the intoxication, the defendant did not understand the nature of his/her actions
or know what he/she was doing. The defence of intoxication typically depends on whether the intoxication was voluntary or
involuntary and what level of intent is required by the criminal charge.Under the Indian Penal Code the criminal liability under
intoxication is mentioned under section 85 and 86.
Section 85 deals with offences committed under the influence of drugs or alcohol which is caused by fraud or coercion. Section
86 deals with intoxication which is self-induced.
Bablu alias MubarikHussain V. State of Rajasthan, in this case SC examined Section 85 of IPC and held that evidence of
drunkenness, the evidence which proves that the accused is incapable of forming the wrongful intent has also been considered
along with the other facts, and then it should be proved of the accused person has the intention to commit crime.These sections
do not protect someone who voluntarily consumed intoxicants as the person loses his mental ability because of his consensual
act i.e. by self-induced intoxication.
The judicial act is an act that is derived from the ordinary exercise of judicial powers within the reasonable and appropriate
jurisdiction. Anything done while acting judicially is not an offence under the Indian Penal Code. Judicial acts as a general
exception can be better understood from section 77 and section 78 of IPC. And, the brief discussion about the topic is given
below.
Section 77 of IPC grants protection to a judge when he is acting judicially. As per this section, if a judge commits an offence
while acting judicially in the exercise of any power given to him by law or in the exercise of any power which he believes to
be given to him by law in good faith, he will be able to take the defence under this section.
In other words, it is no offence if a judge commits an act which is an offence in the Indian Penal Code while acting judicially
in the exercise of any power provided to him by law or in the exercise of any power which he believes to be provided to him
by law in good faith.
Section 77 of IPC grants protection to a judge when he is acting judicially. As per this section, if a judge commits an offence
while acting judicially in the exercise of any power given to him by law or in the exercise of any power which he believes to
be given to him by law in good faith, he will be able to take the defence under this section.
In other words, it is no offence if a judge commits an act which is an offence in the Indian Penal Code while acting judicially
in the exercise of any power provided to him by law or in the exercise of any power which he believes to be provided to him
by law in good faith.
Section 78
This section is a result of section 77 of the IPC. This section provides protection to officers acting under the authority of a
court’s decision or order of a Court of justice. The section states that if an act is committed at the time of the imposition of a
decision or order of a court, it will not be considered an offence, even if the court does not have jurisdiction to pass such a
decision. However, the act must be done believing in good faith that the court has such jurisdiction. Under this section, one can
plead a mistake of law as a defence.
Section 81
UNIT_III_IPC1.pptx
Consent as a general defence
Sections 87-90
Consent means “to agree upon the same thing in the same sense.” It is said to be given when a person agrees upon a thing
being done with his own will and not because of any fear, force or misconception. The element of consent excuses offences
against the human body and property. Sections 87 to section 89 of the Indian Penal Code lays down that if certain acts are
committed with the victim’s consent, they will not be considered an offence, and the offender will not be held liable for the
same.
Section 87
Section 87 of the Indian Penal Code, 1860 provides defence for certain games such as fencing, boxing, football, etc. This
section says that any act which causes harm except the act intended to cause death or grievous hurt and which is not in the
knowledge of the doer to be likely to cause death or grievous hurt is not an offence if it is done with the consent of a person
who is above 18 years of age. The consent may be given in any manner, express or implied.
This section is based on the maxim “volenti non-fit injuria“, which means he who consents suffers no harm. In other words,
if a person gives consent for an event that may cause harm to him with his own will, he accepts to suffer the harm. He can not
make the other person liable for it.
A and B are playing football. B kicks a ball, and the ball hits the face of A. As a result, A got injured. Here the consent was
given impliedly to suffer any harm in the course of a game. A can plead for defence.
The defence of consent is based on two submissions:
1. Every person is the best judge for itself.
2. No man will give consent for what he thinks will be hurtful to him.
Essential Ingredients of Section 87, IPC
To plead for the defence under section 87 of IPC, the harm must be caused under the following conditions:
1. The act causing harm must not be done with the intention or knowledge that it is likely to cause death or grievous hurt.
2. Such harm must be caused only with consent.
3. The consent must be given by a person who is above 18 years of age.
4. The consent may be express or implied.
Section 88
If a person commits an act of harm in good faith and with the consent for the benefit of that person, it will not be considered
an offence. The consent may be either express or implied. However, the consent must be obtained lawfully and by a person
who is capable of giving valid consent in law.
Under section 88 of the Indian Penal Code, the wrong-doer is protected even for an act causing grievous hurt but not death. In
cases where a person gives cosent with his will to take the risk of an operation, and the operation becomes fatal, the doctor
who has done the operation cannot be punished even if it causes that person’s death.
Illustration
A, a surgeon performed plastic surgery on the patient to remove the defect in the nose. The patient died during the surgery.
Here, A will not be liable for the patient’s death unless there has been any gross negligence on his part.
Essential Elements of Section 88, IPC
The essential elements of section 88 of IPC can be outlined as follows:
1. The act is done for the benefit of the person who suffers injury.
2. The act causing harm must be done with the consent of the person to suffer that harm.
3. The act causing harm must be done in good faith for the benefit of that person.
4. The act must be done without any intention to cause death. But if any harm results in the death of a person, then the doer is
not liable.
Section 89
This section provides power to the guardian of a child under twelve years of age or a person of unsound mind to give consent for
the infliction of harm on them. Section 89 of the Indian Penal Code states that any act that is done for the benefit of a child under
12 years of age or of unsound mind with the consent of the guardian or any other person having lawful charge of such person
and in good faith is not an offence.
However, please note that this exception shall not extend to the intentional causing of death or the attempt to cause death.
Illustration
A, in good faith, for the benefit of his child, took him to a surgeon to remove the stone in his stomach. He very well knew that
the operation is likely to cause the death of his child. But not intending to death, A gave his consent to get his child treated. Here,
neither A nor the surgeon will be liable if the operation causes death, as their sole objective was to cure the child.
Essential Elements of Section 89, IPC
To plead for the defence under section 89 of the Code, the following elements must be fulfilled:
1. Act done must be for the benefit of a person who is of unsound mind or a child under 12 years of age.
2. Such an act must be done in good faith.
3. Act must be either done by the guardian or by the guardian’s consent or such other person who has lawful charge of that
person.
4. The consent may be either express or implied.
Section 90
To plea consent as a defence, it must be given by a person who is capable of giving reasonable and valid consent. A person of
unsound mind, a child under 12 years of age, intoxicated persons, and so are not capable of giving valid consent.
The consent given must be free from any fear or misconception or such misconception of the fact that arises out of
misrepresentation, fraud, etc. Any consent which is obtained illegally or unlawfully is no consent under the law.
In short, consent can not be used as a defence under the following cases:
1. Consent that is given by a person under fear of injury.
2. Consent given under misconception of fact.
3. Consent given by a child under 12 years of age.
4. Consent given by a person of unsound mind.
5. Consent given by an intoxicated or drunken person.
Section 92 defines as not even a single act or thing is a crime if such reasons are present:
•If any harm caused to a person for whose benefit it is done in good faith, even without the person’s consent, and
•Even when the circumstances were such that it was impossible for that person to signify the consent, or
•That the person was incapable of giving consent, and
•Also the person has no guardian or any other person in lawful charge of him from whom it is possible to obtain consent in
time for the thing to be in benefit.
•R’ was driving at night and suddenly his car crashed and he became unconscious. ‘S’, a surgeon, finds that surgery has to be
done. So ‘S’ without the consent of ‘R’ but in good faith and for his benefit performs surgery before ‘R’ gains the power to
judge.
Essentials of Section 92
•An act done for the benefit of a person who suffers harm.
•The act done must be in good faith.
•There was no time to obtain the consent of the person.
•Where it is impossible to signify the consent of that person.
•There was no guardian or lawful in charge of that person to obtain the consent.
Communication made in good faith
Section 91
This section explicitly states that those 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
stand on a different footing and for them the benefit of sections 87, 88, and 89 of the Code do not extend.
One such act has been mentioned in the illustration of this section. However, with the passing of the Medical Termination of
the Pregnancy Act, 1971 there are other grounds as well, besides saving the life of the woman, on which pregnancy can be
terminated.
Other acts where exception under Sections 87, 88 and 89 of the Code do not extend may be offences affecting the public health,
safety, convenience, decency, morals and the like. Thus, obscene publications or indecent exhibition even if done with the
consent of the concerned person will entail criminal prosecution and the exception under sections 87, 88 and 89 of the Code
will not be available to the offender.
Section 93 of the Indian Penal Code defines the communication made in good faith.
It states that if anything is communicated to someone else in a good faith and for the benefit of that person then it is not an
offence even if by the communication the person suffers any harm.
This section gives protection to a person who makes a communication to another person in good faith for the benefit of that
other person even if the same may cause harm to that other person. Sections 88, 89 and 92, on the other hand, deal with acts
done for the benefit of a person. The burden of proof under section 93 is naturally on the accused to show that the
communication had been made in good faith for the benefit of the person to whom it was made.
Section 94
This section recognizes the principle that involuntary crimes are a criminal liability for protection. Compulsion is a restraint on
a person’s will, by which a man is urged to do what he disapproves of his judgment, and if the decision rests on the person, he
will reject it.
The theory was based on the well-known maxim, ‘actus me invito factus non est meus act‘, i.e. an act committed by me, is
not my act against my will, and therefore I am not liable for it. It is therefore extremely just and fair for a man to be excused
for his actions which are done through force and coercion that are unavoidable.
The advantage of this provision would apply to all crimes under this Code except for the two specifically excluded in the
clause, namely murder and death-punishable offences against the State. This provision shall apply to any special law or local
law by virtue of s 40, paragraph 2 of the Code.
I. Exclusion of Murder and Offences Against the State Punishable with Death
The protection of this section shall be exempted for crimes of murder and death-punishable offences against the State. That is,
there is no protection under this section for a person who commits murder under the threat of instant death.
This is probably because a man can’t kill another to save his own life. A person, however, who, under the risk of instant death
at the hands of murderers, abets murder and the offence of causing the evidence of murder to disappear; is entitled to s 94
defences.
But a person who participates in a murder commission even under the threat of instant death cannot seek protection from the
chapter. But a person who engages in a murder commission even under the threat of instant death cannot seek protection from
the chapter.
In reference to the second provision, i.e., the death-penalty offence against the state, where coercion is not a justification for
criminal liability, there is only one death-penalty offence against the government in the IPC. Death is punishable by the crime
of declaring or threatening to wage war or promoting any war against the Government of India under s 121, IPC.
The exception was probably made with the idea that a person would put his country’s sovereignty over his or her life. Even at
the point of the weapon, people should refuse to fight against the state. It wasn’t an excuse for him that a gun was aimed at him
and that had he not fought a war, he would have been killed.
II The threat of Instant Death
To use the exemption under this clause, if the act is not performed, the threat under which the act is performed must be a threat
of instant death. The threat may be nothing less than an instant death threat. If the risk is anything but ‘instant death’, then it
will not refer to this chapter.
The threat of death, though present briefly but eventually ceases to exist, or where it happens at a future or distant date, cannot
be pled as a justification because the threat is not ‘instant’.
In Emperor v. Antar the accused assisted in removing the dead body of a person following the murder of the accused’s
mother, under the master’s threat of killing him if he declined to assist him in removing the dead body, the accused who would
otherwise have been guilty under s201 was excluded from punishment under this chapter.
The threat should be Present at the Time of Doing the Act
The important ingredient of this clause is that at the time of doing the act of committing the crime the threat of instant death
must be present. If the threat of immediate death ceases or does not continue to exist, this section will not apply at the time of
the actual commission of the offence.
Proviso and Explanations to Section 94 IPC
Section 94 is explained in two ways. Secondly, the scope of the chapter should be expanded. Under the terms of the section, an
actor should not, by his or her own consent, be placed in such a situation where he or she was subject to such coercion or
threat. Similarly, out of a reasonable apprehension of injury, short of immediate death, the person should not have been put in
such a situation of compulsion..
The man concerned will avail the benefit of this section because the situation is not of his own. It is a matter of fact whether a
person is forced to commit a crime under the threat of immediate death by a mob, and the absence of evidence of the same
force renders the reason inapplicable.
Section 95
Section 95 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) provides for the private defence for trivial or trifle
acts. It states that “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.” The
provision expressly discards the conviction of the accused in matters which are trivial and petty in nature and no man of
prudence and ordinary nature would seek to complain against such acts before the court of law. This section is based on the
principle of “de minimis non-curat lex” which provides that the “law is not concerned with trifles.” This provision is enshrined
under the code to minimise the burden on the Indian courts with trifles, insignificant offences, and marginal wrongs in the
society.

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UNIT_III_IPC1.pptx

  • 2. The Indian Penal Code, 1860 recognizes defenses in chapter four under the heading ‘General Exceptions.’ Sections 76 to 106 of the IPC cover these defenses. The law offers certain defenses that exculpate criminal liability. These defenses are based on the premise that though the person committed the offense, he cannot be held liable. This is because, at the time of the commission of the offense, either the prevailing circumstances were such that the act of the person was justified or his condition was such that he could not form the requisite mens rea for the crime. The defenses are generally classified under two heads - justifiable and excusable. Thus, for committing a wrong, a person must be responsible for doing a wrongful act without having any justification or excuse for it. Justifiable Act: A justified act is a one which otherwise, under normal conditions, would have been wrongful but the circumstances under which the act was committed make it tolerable and acceptable. The person fulfills all the ingredients of the offence but his conduct is held to be right under the circumstances. Excusable Act: An excusable act is the one in which though the person has caused harm, it is held that a person should be excused because he cannot be blamed for the act.
  • 3. For example – if a person of unsound mind commits a crime, he cannot be held responsible for being mentally sick. In case of an excusable defense, the actor is not punished as he lacks the necessary mens rea for the offence either by reason of an honest mistake of fact, infancy, insanity or intoxication. There must be a disability to cause the condition that excuses the conduct. A conduct is punishable not because the person acted in that manner but because he chose to act in that manner. Excusable defenses are invoked when one cannot infer the bad character of a person from the act that he has committed. Classification of general exceptions EXCUSABLE JUSTIFIABLE A mistake of Fact under section 76 and 79. An act of Judge and Act performed in pursuance of an order under Section 77 and 78. Accident under Section 80. The necessity under 81. Infancy – Section 82 and 83. Consent under Section 87 – 89 and Section 90 and 92. Insanity – Section 84. Communication under Section 93. Intoxication – Section 85 and 86. Duress under Section 94. Trifles under Section 95. Private Defence under Section 96 – 106.
  • 4. • Generally, Prosecution has to prove its case beyond reasonable doubt against the accused. • Before the enforcement of the Indian Evidence Act 1882, the prosecution had to prove that the case does not fall under any exception, but section 105 of Evidence act shifted the burden on the claimant. • But in exceptions, as per Section 105 of Evidence Act, a claimant has to prove the existence of general exception in crimes.
  • 5. 1. Mistake of fact (section 76 and 79) The two sections exclude a person from criminal liability when they are ignorant of the existence of relevant facts or have mistaken them and commit a wrongful act for which he neither could foresee nor intended the unlawful consequence. It is important that the mistake must be reasonable and must pertain to the fact of the case and not the law. This is derived from the legal maxim “ignorantia facti doth excusat, ignorantia juris non excusat”. • Section 76 excuses a person from criminal liability who, in to good faith, commits an act which he believes he is bound to do so under law, due to mistake of fact. • Section 79 excuses a person from criminal liability who, in to good faith, commits an act which he believes he is justified to do, due to mistake of fact. • Section 76 – A person believes that he is under a legal compulsion to do such an act. • Section 79- A person acts because he thinks there is a legal justification for the act he has committed.
  • 6. It is always to be kept in mind that mistake relating to the facts in various case laws should be a mistake of fact, not a mistake of law. The mistake of law is never excusable in any court of law because everyone is always expected to know the law of the land. In case Regina vs. Prince[L.R. 2 Cr. CAS. Res. 154 (1875)], Facts: Defendant was convicted of taking an unmarried girl under 16 years out of the possession and against the will of her father. The jury found that the girl had told the defendant she was 18, the defendant honestly believed the statement, and his belief was reasonable. Defendant’s argument: The statute has a requirement read into it that the prosecution must prove that the defendant believed the girl he had taken was over 16. State’s argument: The statute does not require this proof. The act of taking a girl out is wrong in and of itself – that is the mens rea. It does not matter that he thought the girl was older. Just like it would not matter whether he knew or did not know whether she is under 16. However, it would have mattered if he did not know the girl was in the custody of her father.
  • 7. Holding: Conviction affirmed. Reasoning: The court interpreted the statute to require a strict liability application. The Common Law does not allow defenses to strict liability. In Chirangi vs. State[1952 Cr LJ 1212], Facts- The accused one day took an axe and went with his son(deceased) to a nearby hillock (a small hill), known as “budra mata” in order to gather some leaves and killed him, the appellant in a moment of delusion considered that his target was a tiger and not his son, and he accordingly assailed it with an axe. The accused thought, by the reason of fact that he was justified in destroying deceased, whom he thought was a dangerous animal. Holding – The court accordingly held that in the circumstances the accused was protected by the provisions of section 79 of the Indian penal code and was hence acquitted of the charge of murdering his son, under section 302 IPC.
  • 8. 2. Accident Section 80 exempts an accident that transpires while doing a legal act. In the absence of a criminal intent to do such an act, it is absolved. When an accused causes injury to another person without having any criminal intention or knowledge of doing so, the court will consider the incident to be an accident if the accused did not do so intentionally or negligently . Nothing is an offence if it is committed:- 1. By accident 2. Without criminal intention or knowledge 3. While doing a lawful act 4. In a lawful manner 5. By lawful means 6. Where due care and caution is exercised.
  • 9. In King Emperor vs. Timmappa [3 Bom LR 678], a Division Bench held that shooting with an unlicensed gun does not debar an accused from claiming immunity under that section, of the Indian Penal Code. The appeal against the acquittal is accordingly dismissed and the order of the trial Magistrate is upheld. The court is also of the opinion that there is no reason why the sentence awarded under Section 19(e) of the Indian Arms Act should be enhanced. The respondent was technically liable under that provision but no more; and all that he had done was to borrow for a few minutes a gun in order to kill, as he thought, a wild animal which might have attacked him and his comrades. The application for enhancement of the sentence is also dismissed. 3. Infancy (Section 82 and 83) According to Section 82 of IPC, nothing is an offence where – • Act is done by a child • Under seven years of age • There is Absolute incapacity for the crime under seven years of age. Presumption of law- Doli Incapax i.e. a child has no discretion to distinguish right from wrong, thus criminal intention does not arise.
  • 10. According to Section 83 of IPC, nothing is an offence where • Act is done by a child between 7-12 years of age • Has no sufficient maturity of understanding • To judge the nature and consequences of his conduct is no offence. Malitia Supplet Oetatem – Malice Supplies Age If proven to have sufficient maturity of understanding, liability arises.
  • 11. Section 84 Insanity is provided in accordance with Section 84 of the Indian Penal Code as a defence under Indian Law. However, the term “insanity” is not used under this provision. The Indian Penal Code uses the sentence “mental soundness.” In accordance with the code, the defence of insanity, or that can also be called defence of mental insanity, comes from M’Naghten’s rule. In Section 84 of the Indian Penal Code, a person of an unsound mind shall act- Nothing is an offence committed by someone who is currently unable to know the nature of the act or does what is wrong or contrary to legislation due to a lack of a sound mind. For this defence, the following elements are to be established- 1.The accused was in a state of unsoundness of mind at the time of the act. 2.He was unable to know the nature of the act or do what was either wrong or contrary to the law. The term ‘wrong’ is different from the term ‘contrary to the law.’ If anything is ‘wrong’, it is not necessary that it would also be ‘contrary to the law.’ The legal conception of insanity differs significantly from medical conception. Not every form of insanity or madness is recognized as a sufficient excuse by law. Distinction between legal insanity and medical insanity Section 84 of the Indian Penal Code sets out the legal responsibility test as distinguished from the medical test. It can be observed that the absence of will arises not only from the absence of understanding maturity but also from a morbid state of mind. This morbid mind condition, which provides an exemption from criminal responsibility, differs from the medical and legal point of view. According to the medical point of view, it is probably correct to say that every person, when committing a criminal act, is insane and therefore needs an exemption from criminal responsibility; while it is a legal point of view, a person must be held to be the same as long as he is able to distinguish between right and wrong; as long as he knows that the act carried out is contrary to the law.
  • 12. In the case of Surendra Mishra v. State of Jharkhand[(2011) 11 SCC 495], I t was pointed out that ‘every person suffering from mental illness is not ipso facto exempt from criminal liability.’ Furthermore, in the case of Shrikant Anandrao Bhosale v. State of Maharashtra[(2002) 7 SCC 748], the Supreme Court, in determining the offense under Section 84 of the IPC, held that’ it is the totality of the circumstances seen in the light of the recorded evidence’ that would prove that the offense was committed.’ It was added: “The unsoundness of the mind before and after the incident is a relevant fact.” Unsoundness of mind must be at the time of the commission of the Act. In this case, the accused was a police constable. The wife was hit on the head with a grinding stone by the accused, and she was immediately taken to the hospital but was found already dead. After investigation, the appellant was charged for the offence of murder. Insanity was pleaded as a defence. The appellant had a family history where his father also suffered from mental illness. The reason for such an ailment was not known. The appellant was undergoing treatment for this mental disease. It was observed that the motive for the murder was quite weak. After killing his wife, the accused did not attempt to hide or run away. Based on the above-stated facts, it was held that the accused was suffering from paranoid schizophrenia, and he was incapable of comprehending the nature of the act committed by him. Therefore he was not guilty of murder and will be given the benefit of section 84, IPC.
  • 13. Usually, when there is adequate capacity to distinguish between right and wrong, the mere presence of an irresistible impulse would not excuse liability. Irresistible impulse is not incorporated under insanity because it does not fall within the ambit of Section 84 of the Indian Penal Code. In the case of, Kannakunnummal Ammed Koya v. State of Kerala (1967), it was held that to claim an exemption under section 84, the insanity has to be proved, at the time of the commission of an act, mere losing of self-control due to excitement or irresistible impulse provides no defence under Indian law even if this is proved in a court of law. Mc’Naughten’s Rule There have been several tests from time to time, like the Wild Beast Test, Insane Delusion Test, etc. But the most important is the “Right and Wrong Test” formulated in M’Naughten’s case. The hearing of M’Naughten and his release was a topic of discussion in House of Lords, and as a consequence, they called upon fifteen judges to decide on the question of criminal liability in the cases where the accused is incapable of understanding the nature of the act and also answered the questions advanced. Fourteen judges had the same answers. The view of the majority was given by Tindal C.J., these answers to the questions are known as M’Naughten’s Rule. The following principles were cited: 1.If the person knew what he was doing or was only under a partial delusion, then he is punishable. 2.There is an assumption that every man is prudent or sane and knows what he is doing and is responsible for the same. 3.To establish a defense based on insanity, it must be ascertained, at the time of perpetrating the act, the accused was in such a state of mind as was unable to know the nature of the act committed by him. 4.A person who has sufficient medical knowledge, or is a medical man and is familiar with the disease of insanity cannot be asked to give his opinion because it is for the jury to determine, and decide upon the questions.
  • 14. Intoxication Sections 85 and 86 Intoxication is a state of mind in which a person loses self-control and his ability to judge. Intoxication is a defence available to criminal defendant on the basis that, because of the intoxication, the defendant did not understand the nature of his/her actions or know what he/she was doing. The defence of intoxication typically depends on whether the intoxication was voluntary or involuntary and what level of intent is required by the criminal charge.Under the Indian Penal Code the criminal liability under intoxication is mentioned under section 85 and 86. Section 85 deals with offences committed under the influence of drugs or alcohol which is caused by fraud or coercion. Section 86 deals with intoxication which is self-induced. Bablu alias MubarikHussain V. State of Rajasthan, in this case SC examined Section 85 of IPC and held that evidence of drunkenness, the evidence which proves that the accused is incapable of forming the wrongful intent has also been considered along with the other facts, and then it should be proved of the accused person has the intention to commit crime.These sections do not protect someone who voluntarily consumed intoxicants as the person loses his mental ability because of his consensual act i.e. by self-induced intoxication.
  • 15. The judicial act is an act that is derived from the ordinary exercise of judicial powers within the reasonable and appropriate jurisdiction. Anything done while acting judicially is not an offence under the Indian Penal Code. Judicial acts as a general exception can be better understood from section 77 and section 78 of IPC. And, the brief discussion about the topic is given below. Section 77 of IPC grants protection to a judge when he is acting judicially. As per this section, if a judge commits an offence while acting judicially in the exercise of any power given to him by law or in the exercise of any power which he believes to be given to him by law in good faith, he will be able to take the defence under this section. In other words, it is no offence if a judge commits an act which is an offence in the Indian Penal Code while acting judicially in the exercise of any power provided to him by law or in the exercise of any power which he believes to be provided to him by law in good faith. Section 77 of IPC grants protection to a judge when he is acting judicially. As per this section, if a judge commits an offence while acting judicially in the exercise of any power given to him by law or in the exercise of any power which he believes to be given to him by law in good faith, he will be able to take the defence under this section. In other words, it is no offence if a judge commits an act which is an offence in the Indian Penal Code while acting judicially in the exercise of any power provided to him by law or in the exercise of any power which he believes to be provided to him by law in good faith.
  • 16. Section 78 This section is a result of section 77 of the IPC. This section provides protection to officers acting under the authority of a court’s decision or order of a Court of justice. The section states that if an act is committed at the time of the imposition of a decision or order of a court, it will not be considered an offence, even if the court does not have jurisdiction to pass such a decision. However, the act must be done believing in good faith that the court has such jurisdiction. Under this section, one can plead a mistake of law as a defence. Section 81
  • 18. Consent as a general defence Sections 87-90 Consent means “to agree upon the same thing in the same sense.” It is said to be given when a person agrees upon a thing being done with his own will and not because of any fear, force or misconception. The element of consent excuses offences against the human body and property. Sections 87 to section 89 of the Indian Penal Code lays down that if certain acts are committed with the victim’s consent, they will not be considered an offence, and the offender will not be held liable for the same. Section 87 Section 87 of the Indian Penal Code, 1860 provides defence for certain games such as fencing, boxing, football, etc. This section says that any act which causes harm except the act intended to cause death or grievous hurt and which is not in the knowledge of the doer to be likely to cause death or grievous hurt is not an offence if it is done with the consent of a person who is above 18 years of age. The consent may be given in any manner, express or implied. This section is based on the maxim “volenti non-fit injuria“, which means he who consents suffers no harm. In other words, if a person gives consent for an event that may cause harm to him with his own will, he accepts to suffer the harm. He can not make the other person liable for it. A and B are playing football. B kicks a ball, and the ball hits the face of A. As a result, A got injured. Here the consent was given impliedly to suffer any harm in the course of a game. A can plead for defence.
  • 19. The defence of consent is based on two submissions: 1. Every person is the best judge for itself. 2. No man will give consent for what he thinks will be hurtful to him. Essential Ingredients of Section 87, IPC To plead for the defence under section 87 of IPC, the harm must be caused under the following conditions: 1. The act causing harm must not be done with the intention or knowledge that it is likely to cause death or grievous hurt. 2. Such harm must be caused only with consent. 3. The consent must be given by a person who is above 18 years of age. 4. The consent may be express or implied.
  • 20. Section 88 If a person commits an act of harm in good faith and with the consent for the benefit of that person, it will not be considered an offence. The consent may be either express or implied. However, the consent must be obtained lawfully and by a person who is capable of giving valid consent in law. Under section 88 of the Indian Penal Code, the wrong-doer is protected even for an act causing grievous hurt but not death. In cases where a person gives cosent with his will to take the risk of an operation, and the operation becomes fatal, the doctor who has done the operation cannot be punished even if it causes that person’s death. Illustration A, a surgeon performed plastic surgery on the patient to remove the defect in the nose. The patient died during the surgery. Here, A will not be liable for the patient’s death unless there has been any gross negligence on his part. Essential Elements of Section 88, IPC The essential elements of section 88 of IPC can be outlined as follows: 1. The act is done for the benefit of the person who suffers injury. 2. The act causing harm must be done with the consent of the person to suffer that harm. 3. The act causing harm must be done in good faith for the benefit of that person. 4. The act must be done without any intention to cause death. But if any harm results in the death of a person, then the doer is not liable.
  • 21. Section 89 This section provides power to the guardian of a child under twelve years of age or a person of unsound mind to give consent for the infliction of harm on them. Section 89 of the Indian Penal Code states that any act that is done for the benefit of a child under 12 years of age or of unsound mind with the consent of the guardian or any other person having lawful charge of such person and in good faith is not an offence. However, please note that this exception shall not extend to the intentional causing of death or the attempt to cause death. Illustration A, in good faith, for the benefit of his child, took him to a surgeon to remove the stone in his stomach. He very well knew that the operation is likely to cause the death of his child. But not intending to death, A gave his consent to get his child treated. Here, neither A nor the surgeon will be liable if the operation causes death, as their sole objective was to cure the child. Essential Elements of Section 89, IPC To plead for the defence under section 89 of the Code, the following elements must be fulfilled: 1. Act done must be for the benefit of a person who is of unsound mind or a child under 12 years of age. 2. Such an act must be done in good faith. 3. Act must be either done by the guardian or by the guardian’s consent or such other person who has lawful charge of that person. 4. The consent may be either express or implied.
  • 22. Section 90 To plea consent as a defence, it must be given by a person who is capable of giving reasonable and valid consent. A person of unsound mind, a child under 12 years of age, intoxicated persons, and so are not capable of giving valid consent. The consent given must be free from any fear or misconception or such misconception of the fact that arises out of misrepresentation, fraud, etc. Any consent which is obtained illegally or unlawfully is no consent under the law. In short, consent can not be used as a defence under the following cases: 1. Consent that is given by a person under fear of injury. 2. Consent given under misconception of fact. 3. Consent given by a child under 12 years of age. 4. Consent given by a person of unsound mind. 5. Consent given by an intoxicated or drunken person.
  • 23. Section 92 defines as not even a single act or thing is a crime if such reasons are present: •If any harm caused to a person for whose benefit it is done in good faith, even without the person’s consent, and •Even when the circumstances were such that it was impossible for that person to signify the consent, or •That the person was incapable of giving consent, and •Also the person has no guardian or any other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be in benefit. •R’ was driving at night and suddenly his car crashed and he became unconscious. ‘S’, a surgeon, finds that surgery has to be done. So ‘S’ without the consent of ‘R’ but in good faith and for his benefit performs surgery before ‘R’ gains the power to judge. Essentials of Section 92 •An act done for the benefit of a person who suffers harm. •The act done must be in good faith. •There was no time to obtain the consent of the person. •Where it is impossible to signify the consent of that person. •There was no guardian or lawful in charge of that person to obtain the consent. Communication made in good faith
  • 24. Section 91 This section explicitly states that those 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 stand on a different footing and for them the benefit of sections 87, 88, and 89 of the Code do not extend. One such act has been mentioned in the illustration of this section. However, with the passing of the Medical Termination of the Pregnancy Act, 1971 there are other grounds as well, besides saving the life of the woman, on which pregnancy can be terminated. Other acts where exception under Sections 87, 88 and 89 of the Code do not extend may be offences affecting the public health, safety, convenience, decency, morals and the like. Thus, obscene publications or indecent exhibition even if done with the consent of the concerned person will entail criminal prosecution and the exception under sections 87, 88 and 89 of the Code will not be available to the offender. Section 93 of the Indian Penal Code defines the communication made in good faith. It states that if anything is communicated to someone else in a good faith and for the benefit of that person then it is not an offence even if by the communication the person suffers any harm. This section gives protection to a person who makes a communication to another person in good faith for the benefit of that other person even if the same may cause harm to that other person. Sections 88, 89 and 92, on the other hand, deal with acts done for the benefit of a person. The burden of proof under section 93 is naturally on the accused to show that the communication had been made in good faith for the benefit of the person to whom it was made.
  • 25. Section 94 This section recognizes the principle that involuntary crimes are a criminal liability for protection. Compulsion is a restraint on a person’s will, by which a man is urged to do what he disapproves of his judgment, and if the decision rests on the person, he will reject it. The theory was based on the well-known maxim, ‘actus me invito factus non est meus act‘, i.e. an act committed by me, is not my act against my will, and therefore I am not liable for it. It is therefore extremely just and fair for a man to be excused for his actions which are done through force and coercion that are unavoidable. The advantage of this provision would apply to all crimes under this Code except for the two specifically excluded in the clause, namely murder and death-punishable offences against the State. This provision shall apply to any special law or local law by virtue of s 40, paragraph 2 of the Code. I. Exclusion of Murder and Offences Against the State Punishable with Death The protection of this section shall be exempted for crimes of murder and death-punishable offences against the State. That is, there is no protection under this section for a person who commits murder under the threat of instant death. This is probably because a man can’t kill another to save his own life. A person, however, who, under the risk of instant death at the hands of murderers, abets murder and the offence of causing the evidence of murder to disappear; is entitled to s 94 defences. But a person who participates in a murder commission even under the threat of instant death cannot seek protection from the chapter. But a person who engages in a murder commission even under the threat of instant death cannot seek protection from the chapter.
  • 26. In reference to the second provision, i.e., the death-penalty offence against the state, where coercion is not a justification for criminal liability, there is only one death-penalty offence against the government in the IPC. Death is punishable by the crime of declaring or threatening to wage war or promoting any war against the Government of India under s 121, IPC. The exception was probably made with the idea that a person would put his country’s sovereignty over his or her life. Even at the point of the weapon, people should refuse to fight against the state. It wasn’t an excuse for him that a gun was aimed at him and that had he not fought a war, he would have been killed. II The threat of Instant Death To use the exemption under this clause, if the act is not performed, the threat under which the act is performed must be a threat of instant death. The threat may be nothing less than an instant death threat. If the risk is anything but ‘instant death’, then it will not refer to this chapter. The threat of death, though present briefly but eventually ceases to exist, or where it happens at a future or distant date, cannot be pled as a justification because the threat is not ‘instant’. In Emperor v. Antar the accused assisted in removing the dead body of a person following the murder of the accused’s mother, under the master’s threat of killing him if he declined to assist him in removing the dead body, the accused who would otherwise have been guilty under s201 was excluded from punishment under this chapter.
  • 27. The threat should be Present at the Time of Doing the Act The important ingredient of this clause is that at the time of doing the act of committing the crime the threat of instant death must be present. If the threat of immediate death ceases or does not continue to exist, this section will not apply at the time of the actual commission of the offence. Proviso and Explanations to Section 94 IPC Section 94 is explained in two ways. Secondly, the scope of the chapter should be expanded. Under the terms of the section, an actor should not, by his or her own consent, be placed in such a situation where he or she was subject to such coercion or threat. Similarly, out of a reasonable apprehension of injury, short of immediate death, the person should not have been put in such a situation of compulsion.. The man concerned will avail the benefit of this section because the situation is not of his own. It is a matter of fact whether a person is forced to commit a crime under the threat of immediate death by a mob, and the absence of evidence of the same force renders the reason inapplicable. Section 95 Section 95 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) provides for the private defence for trivial or trifle acts. It states that “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.” The provision expressly discards the conviction of the accused in matters which are trivial and petty in nature and no man of prudence and ordinary nature would seek to complain against such acts before the court of law. This section is based on the principle of “de minimis non-curat lex” which provides that the “law is not concerned with trifles.” This provision is enshrined under the code to minimise the burden on the Indian courts with trifles, insignificant offences, and marginal wrongs in the society.