Table of Contents
Indian penal code deals with various punishments which vary from case to case. But it is not always necessary that a person gets punished for a crime which is committed by him.
The Indian penal code, 1860 recognizes defences in Chapter IV under “General Exceptions”. Section 76 to 106 covers all the defences which are based on the presumption that a person is not liable for the crime which he had committed. These defences depend upon the circumstances prevailing at that point of time when particular offence took place i.e. Mens Rea (guilty mind) of the person and the reasonableness of his action.
The General Exceptions under the Indian Penal Code are divided into 2 categories as follows:
- Excusable Acts
- Judicially Justifiable Acts
|Excusable Acts||Justifiable Act|
|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.|
An Excusable Act is the one in which though the person had caused harm, yet that person should be excused because he cannot be blamed for the act. Such as, if a person of unsound mind commits a crime, he cannot be held responsible for that because he was not having Mens Rea. Same as for involuntary intoxication, insanity, infancy or honest mistake of fact.
A justified act is one which would have been wrongful under normal conditions but the circumstances under which the act was committed makes it tolerable and acceptable. Such as, Act of Judge and Act performed in pursuance of an order under Section 77 and 78.
Note: the legal maxim, “ignorantia facti excusati ignorantia juris non excusat” which means ignorance of fact is an excuse, but ignorance of law is no excuse. So it is a basic requirement to be protected under the sphere of this defence that the act committed is a mistake of fact not a mistake of law.
Section 76 and 79: A mistake of Fact
Section 76 states that, 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.
Example: If a soldier fires on a mob by the order of his officer in conformity through the command of the law, then he will not be liable.
Case: Gopalia Kallaiya vs Emperor on 22 November, 1923.
In this case the police had a warrant against a person. However, at the time of arrest, he arrested the wrong person. The arrested person filed a complaint but the police officer was not held liable as this was a case of mistake of fact and the police officer presumed that he was bound to do so.
Section 79 states that, 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.
- Example – A thought Z to be a murderer and in good faith and justified by law, seizes Z to present him before authority. A has not committed any offence, though it may turn out that Z was acting in self defense.
- Example – A person “A” on seeing smoke coming from a person “B” s’ lawn presumes that there is a potential fire in B’s lawn and hence enters inside without seeking permission to quench the fire. Later, after entering he sees the smoke was not because of fire but because B was preparing for a barbeque in his lawn. Here, A would not be held liable as his intention to trespass was not malafide.
Case: Keso Sahu And Ors. vs Saligram Shah on 23 March, 1977.
In this case, the court held that the accused showed that he was in good faith and believing that the offence of smuggling rice was going on in the plaintiff’s house and thus he brought the cart and cartman to the police station. The said suspicion was proved to be wrong. The accused can take the defence of a mistake of fact as he is doing the act in good faith and believing it to be justified by law. Here, A would not be held liable as his intention to trespass was not malafide.
Note: Section 76 of IPC, 1860, deals with those cases where a person commits a mistake in good faith and is ignorant of a fact. On the other hand, in section 79 of IPC, 1860, a person mistakes himself to be bound by law to do an act in good faith. (Refer to examples to make it more clear)
Section 77: Act of judge when acting judicially
It states that nothing is an offence done by a judge when acting judicially in the exercise of his any power, which he believes that the power to him to do so is given by law.
Such as Giving capital punishment to a wrongdoer is in the power of judges.
Section 78: Act done in pursuant to the judgement or order of court
This section protects the person who executes an order/judgement of the court. The section states that when an order or judgement is in force, any performance done for the same is not an offence. Even when it is beyond jurisdiction and the person believes in good faith to be in jurisdiction then also he is not liable for any offence.
Section 80: it includes an Accident committed while doing a lawful act. Nothing is an offence which is done by accident or misfortune, 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.
Suppose that X is trying to shoot a bird with a gun but unfortunately the bullet reflected from the oak tree causing harm to N, then, X will not be liable.
Absence of Criminal Intent
Section 81 : Necessity
when a person in order to prevent a greater harm, commits a crime or a criminal act during an emergency situation, there accused can escape criminal liability because his act was justified as he had the intention to prevent a situation which would cause a greater harm as compared to the criminal act committed by him or her. Defence of necessity applied here.
However, a person cannot kill another for self-preservation. This was established in Queen vs Dudley and Stephens. In this case, Dudley and Stephens were two sea men, along with them was a 17yr old boy. Their boat sank, however, somehow they managed to float on a wooden plank. On the 8th day, in order to survive they killed the minor boy and ate him. On the 12th day they were rescued from there. They were later prosecuted for murder. Their plea for self-preservation was rejected.
Section 82 and 83: Infancy
Section 82: It includes an act of a child below 7 years of age Nothing is an offence which is done by a child under 7 years of age.
It is based upon the principle of maxim DoliIncapax, referring to absolute incapacity to commit a crime. It states that the person is incapable of forming intent to commit a crime, especially by reason of age.
Suppose, a child below 7 years of age, pressed the trigger of the gun and caused the death of his father, then, the child will not be liable.
Note: If anyone abets a child to commit an offence and the child does so. In that case, the abettor is liable solely as the child is incapable of distinguishing between right and wrong.
Section 83: It includes an act of a child above 7 and below 12 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 consequences of his conduct on that occasion.
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. And If it is proven that the child has attained sufficient maturity to understand the nature and consequence of his act then the criminal liability arises.
Section 84: Insanity
Act of a person of unsound mind
Nothing is an offence which is done by a person who at that time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law.
Example: A, who is insane or unsound, killed B with a knife, thinking it to be a fun game, will not be liable for B’s death as he was not aware of the nature of his act and law.
Note: The defense of insanity is also based on DoliIncapax as the accused is presumed to be incapable of committing crime.
Intoxication: Section 85 and 86
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.
Note: the person was intoxicated against will or by fraud or was tricked (cheated) to do the same or was not aware about the same will not be liable for his acts and can take defence under section 85 of IPC.
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.
- Example: A person intoxicated, stabs another person under influence of alcohol which was administered to him in the party against his knowledge or will, will not be liable. But if that person had stabbed that person under voluntary intoxication, then he would be liable.
- Example: the accused was drunk and fought with the wife. He poured kerosene and set her on fire and started extinguishing (बुझाने) the fire. The court held that he intended to cause bodily injury which was likely to cause death under section 299 and sentenced him under section 304 of IPC.
Section 87 to 91: Consent
Sections 87 – 91, lay down the law as to how far an act done by consent will be excused. It is important to note that consent plays a very important role in criminal law. Its presence or absence often makes a difference between innocence and crime. such as, an act of sexual intercourse may become rape if done without consent.
Section 87: Act not intended and not known to be likely to cause death or grievous hurt, done by consent
It states that nothing is an offence which is not intended to cause death or grievous hurt and which is unknown by the doer to be likely to cause grievous hurt or injury, if done by the consent (may be expressed or implied) of the person.
- Example: Person “A” and person “B” participate in a boxing competition. A gets hurt grievously by B. In this case, B will not be held liable to cause injury to A as A had given voluntary assent for the same and it was known to A. This is based on the principle of Volenti Non Fit Injuria, which states that a person voluntarily gives assent for harm/injury.
- Example: A and E agreed to fence each other for enjoyment. This agreement implies the consent of each other to suffer harm which, in the course of such fencing, may be caused without foul play and if A while playing fairly hurts E, then A, has committed no offence.
Section 88: Act not intended to cause death, done by consent in good faith for person’s benefit
It states that nothing is an offence which is not intended to cause death by a doer and where harm is caused with the victim’s consent for his benefits, if done in good faith.
Such as in Surgery it requires cutting, stitching etc on a person’s body. This section is generally for medical purposes.
In the xyz case, the appellant, a medical doctor, performed an eye operation for cataract with the patient’s consent. The operation resulted in the loss of eyesight. The doctor was protected under this defence as he acted in good faith.
Section 89: Act done in good faith for the benefit of a child or insane person, by or by consent of the guardian
It states that nothing is an offence done in good faith or benefit of a child below the age of 12 years or an insane person by the consent (may be expressed or implied) of their guardian or the person having lawful charge of that person.
Note: this section must be used in good faith.
Section 90: Consent known to be given under fear or misconception
It states that a consent given by a person under the fear of injury, or under a misconception of facts, or by reason of unsoundness of mind, intoxication, or a child under the age of 12 years, who is incapable to understand the nature and consequences of the consented act, is invalid consent.
Section 91: Exclusion of acts which are offences independently of harm caused
The exceptions given in Sections 87, 88 and 89 do not apply to the acts which are offences independently in itself under IPC. any act which is considered as crime in itself cannot take any defence even if it is done with the consent of the person to whom the harm is caused.
Such as, Causing miscarriage is independently is a serious offence, even if done with the consent of the concerned women or her guardian. it can only be done in good faith and in very odd circumstances to save her life.
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 causes 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.
For example, In case of road accident, a person was hospitalized and his family members were not there while he was taken to the hospital. In order to save that person, doctors were required to perform a surgery which required consent. In this situation, neither the person is in a state to give consent nor are his family members available. Hence, the doctor in ‘good faith’ (to save the life of the aggrieved) performed the surgery for his benefit. Hence, the doctor will not be held liable.
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.
Example: A doctor in good faith tells the wife that her husband has cancer and his life is in danger. The wife died of shock after hearing this. The doctor will not be liable because he communicated this news to her in good faith.
Section 94: Act to which a person is compelled by threats
In this section it is said that nothing is an offence done by a person who is compelled to do a wrongful act by fear of threats, which is accompanied by reasonable apprehension of instant death to the person who is performing the act under compulsion at that time.
Example: A, who is seized by goons and is under apprehension of instant death, he is forced to snatch money from ‘B’ will not be held liable for the same.
Note: This defense is not avilable in murder and offenses against state. And also if the person accords himself to the situation where he became a subject to such restrictions by the people he accorded with.
Such as, if a person ‘C’, who by his accord joins a group of dacoits and is under apprehension of threat/instant death, commits an offense will not be given the benefit of this defense.
Section 95: Act causing slight harm
Nothing is an offence which is caused with or without intention, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Like scratches etc.
It is based on maxim De Minimis Non Curat Lex meaning law doesn’t deal with trifles.
Section 96 – 106: Private Defence
Section 96 : Things done in private defence
It states that nothing is an offense which is done under the exercise of the right of private defense, in order to protect oneself from harm or injury. A person while exercising the right of private defense can only inflict a reasonable amount of harm. It is not an absolute right.
Section 97 : Right of private defence of body and property
- Protecting his body or another person’s body, against any offence in which there is a danger to life.
- Protecting his or any other person’s movable or immovable property, against any offence like theft, robbery, mischief or criminal trespass or an attempt to commit theft, robbery, mischief or criminal trespass.
However, these defenses should be in compliance with the restrictions mentioned under section 99 of IPC, 1860.
Note: Anyone may protect another person’s property. One doesn’t need to be related to someone in order to protect her/him.
Section 98: Right of private defence against the act of a person of unsound mind etc.
It provides the right to private defense against a person of unsound mind, child, intoxicated person etc. This section enables an individual to exercise the right of private defense against offenses which may not be considered as offenses due to insanity, intoxication, infancy, mistake of fact, etc.
As we have studied in previous sections that person may not be held liable for offenses if committed by him due to reason of mistake of fact, infancy, insanity, intoxication etc. in such cases the wrongdoer may get a clean chit and the act done by him may not be considered an offense. However, this doesn’t deprive the aggrieved from exercising his right to private defense in order to protect himself.
Example: A attempts to kill Z under the influence of insanity but A is not guilty. But Z can exercise private defence to protect himself from A.
Section 99: Acts against which there is no right of private defence
i) against the acts of a public servant acting in good faith and;
ii) against the acts of those acting under the authority or direction of a public servant.
iii) where there is sufficient time to seek recourse (help) from public authorities; and
iv) The quantum of harm that may be caused shall in no case be in excesses.
Section 100: When the right of private defence of the body extends to causing death
It mentions the offenses under which the right to private defense of the body may extend to cause death.
The right to private defense against a body may extend to cause death under the following offenses:
1. In the case of assault, which may create apprehension resulting in the death of the aggrieved.
2. In case of assault which may create apprehension of causing grievous hurt to aggrieve.
3. In case of an assault which has intention to commit rape.
4. In case of an assault to gratify unnatural lust.
5. In case of an assault which has the intention to kidnap or abduct.
6. In case of an assault where there is intention of wrongfully confining a person.
7. In case of an act of throwing or administering acid or in case of an attempt to do so.
Note: mere exchange of words doesn’t give rise to the right of private defense. Physical act is required to exercise the right to private defense.
Section 101: When such rights extend to causing any harm other than death – It states when the right to private defense against a body extends to cause any other harm than death. Offences other than those which are mentioned Under Section 99 of IPC, 1860, the right to private defense may extend to cause any other harm than death in case of right to private defense against a body.
Above we have discussed Section 100 of IPC, 1860, which lays out provisions under which the right to private defense against a body may extend to death.
Section 102: Commencement and continuance the right of private defence of the body
A person’s right to private defense begins from the very moment when he finds himself under the reasonable apprehension of harm/injury/assault etc or It arises from the very moment of the threat/attempt of any such act that may result in death/grievous hurt/injury/assault etc.
It lasts till the apprehension/threat is there. However, once the situation of threat/apprehension is over, the person no longer can exercise his right to private defence.
Example: a week ago, A, B, and C were chasing D to kill him in order to take revenge, but suddenly they saw a policeman coming from another side. They got afraid and turned back to run. But D shoots B after a week, even when there was no imminent danger of harm. D will be liable as there was no apprehension of death or risk of danger.
Section 103: When the right of private defence of property extends to causing death
Under these following circumstances the right to private defense against property can extend to death ;
1. In case of robbery.
2. In case of house breaking at night
3. In case of mischief by fire committed on any building, tent, or vessel that is being used as a place of human dwelling (निवास-स्थान) or as a place of custody of property.
4. In case of theft, mischief or house-trespass, under such circumstances, if there is reasonable apprehension of death or grievous hurt as a consequence then the right to private defense may extend to death.
Example: C Attempts to stab D maliciously while committing burglary in D’s house. There is a reasonable apprehension in the mind of D that C will hurt him grievously, so in order to save himself and property, D throttled him, causing C’s Death. D will not be liable.
Section 104: When such right extends to causing harm other than death
It talks about situations when the right to private defense against property may extend to cause any harm other than death. In case of any offense except those which are mentioned under Section 103 of IPC, 1860, a person may exercise his right to private defense causing any other harm than death after taking care of restrictions mentioned under section 99 of IPC, 1860.
Example – If someone has committed criminal trespass in order to annoy or hurt, then you can only have the right to harm but in a proportional manner, not causing the death of the person.
Section 105: Commencement and continuance of the right of private defence of property
It talks about the commencement and continuation of the right to private defense against property.
A person’s right to private defense begins from the very moment when he finds himself under the reasonable apprehension of harm/injury to his property or It arises from the very moment of the threat/attempt of any such act that may result in harm/injury to his property and it lasts till the apprehension/threat is there.
However, once the situation of threat/apprehension is over, the person no longer can exercise his right to private defense against property.
Example: Suppose a thief enters the house of an individual, and attempts to hurt him instantly with a knife, then that individual has the right to act in private defence and harm that thief to save life and property.
In this xyz case, paddy sheaves belonging to the accused were removed illegally by a person. Accused attacked the cartman and that cartman jumped off the carts and ran away leaving sheaves. The accused still chased him and attacked him leading to death. The court held him guilty of the offence.
Section 106: Right of private defence against deadly assault when there is a risk of harm to innocent person
It states that in case of an apprehension of a deadly assault, a person has the right to protect oneself by exercising his right to private defense. In a situation like this, if a person harms an innocent person, he shall not be held liable as that would be the need of hour.
Example: C is attacked by a mob who attempts to murder him. He cannot exercise his right to private defence unless firing on the mob. In order to save himself, he is compelled to hurt innocent children mingled in the mob, while doing so, C has committed no offence as he exercised his right.
So, these were the general exceptions under the Indian Penal Code which are available to the accused to escape liability or save himself from the offence committed. It may even extend to causing the death of a person or harm to an innocent person too depending upon the circumstances. The accused should also have the right to be heard, keeping in view all aspects of law and its fairness for all. Therefore, these exceptions are provided to one who is innocent in his eyes but due to any unwanted event he was compelled to do such a criminal act.