Author: Sameer Afzal Ansari, III year of B.A.,LL.B. from Guru Gobind Singh Indraprastha University
IPC provides for general exceptions because in certain acts mens rea is missing. The act occurred due to the independent compelling circumstance. The general rule is that the person is presumed to know the nature and consequence of the act. He is thus made responsible for his actions in law. If he is able to prove any one of the general exceptions mentioned in IPC, a complete defense is given.
Section 6 of IPC declares that all the offenses in IPC are to be read with subject to general exceptions. Section 105 of the Indian Evidence Act states that the burden of proof to prove general exceptions of IPC lies in the accused. He has to prove the existence of special circumstances. The burden of proof on the accused is that of civil proceedings. Accused establishes his defense on a preponderance of probabilities.
Even if the accused is not able to prove completely the general exceptions but creates a doubt about the mens rea. The accused will get the benefit of the doubt. As the prosecution will fail to prove the guilt of the accused beyond a reasonable doubt.
The following defenses can be taken by the accused:
Mistake of Fact and Law
Section 76 IPC states, “nothing is an offense which is done by a person who is, or who because of a mistake of fact and not because of a mistake of law in good faith believes himself to be, bound by law to do it”.
Section 79 IPC states, “nothing is an offense which is done by any person who is justified by law, or who because of a mistake of fact and not because of a mistake of law in good faith, believes himself to be justified by law, in doing it”.
The mistake admits as a defense if:
The state of things believed to exist would if true would have justified the act done
The mistake must be reasonable
Mistake relates to the fact and not a law
Essential ingredients of Mistake
‘Ignorantia facti doth excusat’- Mistake of fact is excusable
Section 76 excuses a person from criminal liability who, into good faith, commits an act. Provided he believes he is bound to do so under law, due to mistake of fact. The legal presumption is that everyone knows the law of the land. An act will not be an offense if it is committed in a manner by a person who by mistake of fact believes to be bound by law or who is bound by law. However, mistake of law per se is not excusable.
Accident
Section 80 of IPC states, “nothing is an offense 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”.
Essential ingredients of Accident
The act done should be by accident or misfortune. It happens ‘out of the ordinary course of things’ and is unexpected.
Without any criminal intention or knowledge. Acts that are criminal but without the criminal intent, lacking mens rea, are not penalized. “Mens rea” is one of the necessary ingredients to make an individual liable for his acts.
While legally doing a lawful act by lawful means. The original act should be lawful.
The person should exercise due care and caution. If any harm is caused without it no defense shall be given.
Even if the accident takes place while performing an unlawful act, Sec. 80 would be available if there is no causal connection between the resultant harm and act in question.
Case Laws
State of Orissa v. Khora Ghasi (1978)
Jogeshwar V. Emperor
Tunda v. Rex
Necessity
Section 81, IPC states, “nothing is an offense merely because of its being done with the knowledge that it is likely to cause harm if it is done without any criminal intention to cause harm, and in good faith to prevent or avoid other harm to person or property.”
Essential ingredients of Necessity
Knowledge of harm should exist but the act should be without any criminal intention. It is necessary for this exception to be in the absence of any criminal intention. Any intentional action cannot be justified.
The purpose of the act is to prevent or avoid harm which is to a person or property. Even if the wrongful act is committed with the knowledge of it being so. Also, the act committed is to prevent harm to a person or a property, the act would be covered under this section. It will not be an offense.
It must be in good faith. Good faith is circumstantial i.e. the act should be done in an imminent situation.
Types of necessity
Public Necessity- Public necessity pertains to action taken by public authorities or private individuals to avert a public calamity.
Private Necessity- Private necessity arises from self-interest rather than from a community at large. It takes place when the defendant wants to protect his interest.
The defense of necessity is based on the following principles
Jus Necessitas- justification of necessity
Quad Necessitas Non-Habet Legam- necessity knows no law
Necessitas Vincit Legam- necessity overcomes the law
Case Laws
Gopal Naidu v Emperor ;R v. Dudley and Stephens (1884)
Infancy
Section 82: It includes an act of a child below seven years of age. Nothing is an offence which is done by a child under seven years of age.
Suppose a child below seven years of age, pressed the trigger of the gun and caused the death of his father, then, the child will not be liable.
Section 83: It includes an act of a child above seven and below 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 yet attained sufficient maturity of understanding to judge the nature and repercussions of his conduct during that occasion.
Example: Suppose a child of 10 years killed his father with a gun in the shadow of immaturity, he will not be liable if he has not attained maturity.
Intoxication
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 involuntarily without his will or knowledge.
Example: A drunk alcohol given by a friend thinking it to be a cold drink. He became intoxicated and hit a person while driving his car back home. He will not be liable as alcohol was administered to him without his will and knowledge.
Section 86: Offence requiring a particular intent or knowledge committed by one who is intoxicated. This applies to cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in 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.
Case law
Babu Sadashiv Jadhav case
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 which is likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or to be intended by the doer to cause, to any person, above 18 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 that risk of harm.
Case law
Poonai Fattemah v. Emp
Section 88: Act not intended to cause death, done by consent in good faith for a 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.
Case law
R.P Dhanda V. Bhurelal
Section 89: Act done in good faith for the benefit of a child or insane person, by or by consent of the 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
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 children, the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Case law
Jakir Ali v. State of Assam
Section 91: Exclusion of acts which are offences independently of harm caused. 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.
Sudden and grave provocation
When the person losing his self-control by the sudden and grave provocation, causes the death of the person who gave the provocation or any other person due to a mistake or an accident then he will be liable for the culpable not amounting to murder. The essential conditions are as:
The accused had been provoked by the deceased.
Provocation needs to be sudden.
Provocation needs to be grave.
The accused had lost his self-control or controlling power.
The accused must have caused the death of the person who gave the provocation.
The accused must have caused the death during the continuance of his deprivation of the power of self-control.
The accused should not have malafide intention.
Case Laws
K.M Nanavati vs the State of Maharashtra 1962 SCR Supl. (1) 567
Suljina Dhan vs the State of Assam
Mahmood vs State AIR 1961 All 538
Muthu vs State of Tamil Nadu 2016