eeeee CON PENCE CEPTIONS, ABETMENT, S AGAINST STATE AND PUBLIC PEACE Chapter-1 GENERAL EXCEPTIONS AND THEIR CLASSIFICATION [Sections 76-106] General Exceptions: Indian Penal Code, 1860 framed the criminal offences and punishments for them. When a person is alleged to have committed an offence, he is tried in the Criminal Court. The word ‘offence’ denotes a thing punishable under the Indian Penal Code or under any special or local law when it satisfies the conditions laid down in Section 40 of the Code. The general rule is that it is the duty of the prosecution to prove the offender's guilt. An accused is presumed to be innocent unless and until the prosecution established by unimpeachable evidence that he is guilty of the offence with which he has been charged. The Court, before declaring him guilty of the offence, gives him an opportunity to get exemption from criminal liability. 4a person is presumed to know the nature and consequences of his act, and is therefore, responsible for it'in law. However there are some ‘exceptions to this. A man may be excused from punishment, either on the ground ‘of the absence of the requisite mens rea for the commission of crime or on some other ground recognised by law. The Indian Penal Code provided general exceptions in Chapter IV from Sections 76-106. These provisions are applicable not only to offences under the IPC but also to offences under special or local laws. Section 6 of the IPC provides that every definition of an offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions (Chapter IV) though those exceptions are Not repeated in such definition, penal provision or illustration. 107Law of Crimes (U., CH Ss. 76-106) of Chapter IV of the IPC deal with the classes of exceptions: (i) excusable; and a Lane Excusable defences are those where the act committe soca for want of necessary requirement of mens rea. bese a a 95 of the IPC deal with excusable defences. In case of justifiable defences the act committed is not excused but is justified on account of some considerations neutralising the liability otherwise incurred. Sections 96 to 106 of the IPC deal with justifiable defences. It is a general rule of criminal jurisprudence, that unless otherwise directed by the statute, the presumption of innocence in favour of the accused casts on the prosecution the burden of providing every ingredient of the offence even though negative averments be involved therein. Before the enactment of the Indian Evidence Act in 1872, it was for the prosecution to show the absence of all circumstances which might being into play any of the exceptions in the Indian Penal Code. After the passing of the Evidence Act, the position has changed. As per Section 105 of the Evidence Act, 1872, “when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exceptions or provisos contained in any other part of the same Code, or in any law defining the offence, is upon him; and the Court shall presume the absence of such circumstances, For example, A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know that nature of the act. The burden of proof is on A! The general Exceptions ( The burden of proving exception lying on accused relating to the exceptions does not absolve the burden of issue on prosecution for conviction. Generally the Court presumes the absence of circumstances provided under General Exceptions in Chapter IV of the IPC. If it is apparent from the evidence on the record, whether produced by the Prosecution or by the defence, that a general exception would apply then the presumption is removed and it is open to the Court to consider whether the evidence satisfactorily shows that the accused is entitled to the benefit of the general exception. The accused in criminal case can defend himself by proving that his case falls within the group of general exceptions and can be acquitted by proving his defence under general exceptions beyond reasonable doubt,U,CHI G Classification of the Ge The general ®xceptiong on Exceptions under IPC i Ovi be placed within the following ie in Chapter IV of the IPC can 1) Mistake of fact; categories: a) act done bya Perso, himselt bound, b law ie b) act done bya Person justified or himself justified, by law [Sec 2) Judicial acts: OF by mistake of fact believi ¥ law [Seo, 76]; and evra by mistake of fact believing 79). a) act of a Judge when acting judicially [Sec. 77; and b) 7s done Pursuant to the judgment or order of Court [Sec. 3) Accident: Act caused by accident [Sec. 80], 4) Absence of criminal intent: a) Necessity: act done with the knowledge that it is likely to cause harm, but done Without criminal intent and to prevent other harm [Sec. 81]. b) In good faith: (i) act done in good faith for the benefit of a Person_without consent [Sec.. 92]., . , (ii) communication made in good faith [Sec._93]. Cc) Threat of death: act done under threat of death [Sec. 94). 5) Incapacity to commit crime: a) Child: (i) act of child under seven years [Sec. 82]. (ii) act of child above 7 and under 12 years but of immature understanding [Sec. 83]. b) Unsound mind: act of a person of unsound mind [Sec. 84]. ¢) Drunkennes: intoxi en the thing which Drunke :s: act of intoxicated person wh the th intoxicated him was administered to him without his in knowledge or against his will [Sec. 85).Law of Crimes i (Uy Cay 6) Consent: @) act not known to be likely to cause death or Grievous hurt done by consent of the sufferer [Sec. 87]. ‘ b) act not intended to cause death done by consent of the sufferer [Sec. 88]. ¢) act done in good faith for the benefit of a chilg under 12 years or an insane person with the consent of the guardian [Sec. 89]. 7) Trifling acts: Acts causing slight harm [Sec. 95]. 8) Private defence: a) of body [Sections 96-102, 104 and 106]; and b) of property [Sections 96-99 and Sections 103-105]. I. Mistake of Fact and Mistake of Law [Sections 76 & 78) Mistake: The term ‘mistake’ literally means ‘commission or omission of an act ignorantly or unintentionally causing injury or damage to another/ other”. Mistake is not mere forgiveness. It is a step made, not by design but by mischance. Mistake is our unconscious ignorance or forgetfulness of a fact, Past or present, material to the contract, or does not exist; some intentional act, omission, or error arising from ignorance, Surprise, imposition, or misplaced confidence; in a legal Sense, the doing of an act under an erroneous conviction, which act, but for such conviction would not have been done. Mistake is one of the defences available to the accused to get exemption from criminal liability. Mistake is of two kinds, namely: (i) mistake of fact; and (ii) mistake of law. Mistake of fact is a mistake which takes place when some fact which really exists is unknown; or Some fact is supposed to exist which really does not exist. Mistake of law is a mistake occuring when a person having full knowledge of fact comes to an erroneous conclusion as to their legal effect. Sections 76 and 79 of the Indian Penal Cede deal wit the defence of mistake.Section 78 So ‘states re ———— garding ar donéby a per: ound, or by mistake of fact believing himself bound by law thus: “76. Act dene by a person bound, or by mistake of fact elieving himself bound, by law:— Nothing is an offence which is one by a person who is, or who by reason of a mistake of fact and i by reason of a mistake of law in good faith believing himself to e, bound by law to do it.” IMustrations: ‘ (a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of law. A has committed no offence. - (b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence. Thus, Section 76 of the IPC excuses a person who has done what py law is an offence, under a misconception of facts, leading him to elieve in good faith, that he was commanded by law to do it. Essentials of Section 76 may be analysed as follows: n who is bound by law in doing that; 3 a : i) an act done by a perso or ii) an act done by a person who belli by law in doing that; iii) the belief must be by reason of a mistakeof fact and not by reason of a mistake of law, ie. the mistake must relate to fact and not to law; iv) the belief must be a bona fide belief in good faith i.e. he must believe in good faith; eves himself to be bound e fulfilled, mistake may successfully be If the above conditions ar eaded in defence to any prosecution for any offence. Section 76 of the IPC is based on the maxim ‘Ignorantia_facti cusat, ignorantia juris non-excusat’ which means ‘ignorance of fact cuses, ignorance of law does not excuse’. . The mistake should be one of the fact, not of the law. In both e cases, the mistake may be due to ignorance, negligence, chancene under the desire of ut, it : ‘ 44 do not know the law and norance of the municipal Ity thereby inflicted upon offenders, of the age of discretion and compos it; because every person etion and compos mentis is bound to know the d so to do.” However, if a person did a wrongful faith and honest belief that he istake of fact with a good 2nd do, he may be excused. It is presumed that everyone knows the law of the land. Mistake must be of material facts 1.e. facts essential to constitute the offence allegedly committed by the accused. He must be absolutely ignorant of the real circumstances of the case which makes his act an offence. Where a fact is unknown to the accused, his conduct must not be taken to be the intention with regard to it. In Rex v. Levett, (79 Eng. Rep. 1064 KB (1688)] the defendant was awakened in the night by strange noise in his house; thinking he was attacking a burglar, he ran his sword through a cabinet where the intruder was hiding and killed a friend of his servant present by the latter's invitation. It was held not to be manslaughter for he did it ignorantly without intention of hurt to the deceased. The mistake that furnishes a defence must be reasonable and must have been made in good faith. The words ‘good faith’ mean ‘the act done with due care and attention’. They also include the genuine belief of the person. According to Section 52 of the IPC, “Nothing 5 ae be done or believed in ‘good faith’ which is done or believed tects ne care and attention”. There must be evidence of such state eae ‘ene justify the belief in good faith. The burden of of good faith. The i. upon the person who wants to take the shelter by law’ mean He phrase ‘in good faith believes himself to be, bound S at the accused should be in good faith and he must be under the confidence that he was bound by law to do that act. In Bhawoo Jivaji v. Mulli Da, h : yal, (1888) 12 Bo a police constable saw the complainant carrying po 1 ae pieces of cloth. He suspected the cloth to be stolen, th “ stable arrested him as he did not allow to inspect the cloth pe sso was able if a person says: ' © *, Hale writes, Ig mentis, {tO of the age of di law and presume! scrts done in moments of delusion: Acts done in moments of delusion are also protected under Section 6. In Chirangi v. State, [AIR 1952 Nag. 282] the accused in a moment delusion that his only son was a tiger and accordingly he assailed im with an axe thinking, by reason of mistake of fact, his son was dangerous animal. The accused was allowed the defence of mistake fact and was held not liable for offence. Section 76 of the IPC is mainly intended to safeguard the ordinates, who are compelled to follow the supervisor's orders. ction 76 does not give protection to those people who act against law i.e. mistake of law. tection of private persons: Section 76 of the IPC is also applicable to private persons, who e private persons to arrest a person suspected to have committed n-bailable offence, and to apprehend such person and to handover im to the nearest police station. Private person acting under Sections , 43, 72 and 73 of the Code of Criminal Procedure will be protected der Section 79 of the IPC. stake or Ignorance of Law: The term ‘law’ used in this connection means, a general law of e land, But the rule applies to all bye laws, rules and regulations i of law. Ignorance of law is ho excuse either in the ae oe foreigner. Everybody is presumed to know law se of a native or a ; the land, Hence mistake of law is no defence.dy S| Law of Crimes: mers: 7 pen gue - ee sant In its application to criminal dba foreigner is not exempted who ie law. | The maxim ignorantia juris no offence admits of no exception. Even a ow th cannot reasonably be suppose! to wh} Ignorance of newly ef hich is made an offence for Although a per com 4 as to render it impossible the first time by 3 $1 i te could have reached the that any notice of the passing ‘this ignorance of place where the 0 the statute will not of the statul been committed, y' nishment. to act done by a person ustified by law thus: fence has save him from pu of the IPC states relating C vation oy ean of fact believing nimself j «7g, Act done by @ 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 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” Mustration: A sees Z commit what appears to A to be a murder. A in the exercise, to the best of his judgment, exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. ‘A has committed no offence, though it may turn out that Z was acting in self-defence. Ingredients of Section 79 of the IPC: Q An act done by a person under a mistake of fact; ii) Mistake must relate to fact and not to law; ili) Mistake must be committed in good faith; iv) ine person doing the act is either justified by law or believes imself to be justified by law in doing an act. In State of Orissa v. Khora i, [ / Ghasi, (1978 Cr.LJ. 13 i , . te A the accused while guarding his maize field shot an arrow at Se ot ject to the bona fide belief that it was a bear and in fe sces8 . used the death of a man who was hiding there. It was hold that ie could not be held liable for murder as his case was fi ed by Section 79 as well as Section 80 of IPC a fully covenIn Emperor v. Jagmohan Thukral, [AIR 1947 All. 99], the accused, no was passing through a forest during a night, saw the eyes of animal besides the bush and fired with his gun. But two military “fice’s ina military camp were wounded with the gun fire. The accused not know about the military camp. He was accused under Section 07 but the Court observed that the accused comes under the protection f¢ Section 79 of the IPC. In Ram Buhader v. State of Orissa, [AIR 1960 Ori. 161], the accused ounded the people who pretended that they were ghosts by holding ghts, while he and his master were afraid of seeing ghosts as the Jace they reached was known as a haunted place. Some neighbours nined them. The accused was given benefit under Section 79 of the pc and he was acquitted. In Keso Sahu v. Saligram, [1977 Cr.L.J. 1725 (Ori.)], where the cused while helping the police stopped a cart which they in good ith believed to be carrying smuggled rice but ultimately their suspicion oved to be incorrect, it was held that they could not be prosecuted or wrongful restraint under Section 341 as their case was covered Section 79 of the IPC which makes an offence, a non-offence. In Charandas v. State, [AIR 1950 East Punjab 321], a constable the National Volunteer Corps. in obedience to the orders of a superior fficer fired a gun and shot a woman inside the tent in which gambling las going on and no violent mob had gathered there. The accused as held guilty of the offence of murder as the superior order was egal as the accused fired when there was no gathering of violent mob. Whenever the question of justification of an offence either due mistake of fact or mistake of law arises, the guiding rules are: i) that when an act is in itself plainly criminal and is more severely punishable; ii) that where an act is prima facie innocent and: proper; ili) that the state of the defendant’s mind amounts to absolute ignorance of the existence of the circumstance which alters the character of the act; iv) where an act which is in itself wrong is criminal; v) where a statute makes it penal to do an act under certain circumstances.d Section 79 section 76 an jetin cl deals wit cases where by reason of a gection ol Cea under 2.7 take considers himself bound tak ct the oe iculat way, although on the true state of facts maw to act | aie tion 79 of the Ipc, on the other hand, deals . Seer a mistake of fact the person under re stified by law to act ina act is n his where a ts himself simply JU ‘oth Sections of and 79 there must be a icular WAY: dvance the law, manifested by the circumstances a intention is the subject OF sharge; and the party accused attending tne 27° that he A ‘d a good motive, but must allege je gene : i ith that he was bound by law wered by law [Sec.79] acted to the best of his judgment exerted in good faith. The en the two sections is involved in the words ’ in Section 76 and ‘justified by law’ in Section 79, Under Secti | compulsion and under Section 79 there is legal Judicial acts [Sections ‘e who carry out their | prosecution for their ju ion 76 there is lega! | justification. 77 and 78) Judges and thos' orders have been given protection from criminal dicial acts under Sections 77 and 78 of the IPC. Section 77 of the IPC stat Judge when acting judicially thus: wh “Tl. Act of Judge when acting judi oy now done by a Judge when acting t wer which is, or which in good faith he believes 0 him by law.” es relating to immunity for the act of cially:— Nothing is an offence judicially in the exercise of to be, given Section 78 of the IPC states relating to immunity for the act done Pursuant t F 0 the judgment or order of Court thus: “TB. Act d en which Beare to the judgment or order of Court:- br wan OF order of, a ” bursuance of, or which is warranted by the may re Temains in force, i of Justice, if done whilst such judgment the ca no jurisdictig is an offence, notwithstanding the Court eon doi iction to pass such judgment or order, provided Such june eS the act j JUrisgi e a a dicign's "® 2Ct in good faith believes that the Court haAccording to Hari Singh , sonal immunity toa Judge Pe emer e ae ‘dicial officers in all ages have been the target oF tl sl Judges and neir function often leads to exhibitions of tem er nd ete etaliation- If, therefore, Judges had been saeacat ath core ° poting 2 regards the defence of their act or cond ie rey woud oon have forsaken their legitimate duties in cn ae indicate themselves. Moreover, their exposure to the shatts ot nsuccesstul party or of condemned convict would have made their sition one of considerable peril and precarious advantage. For one would come forward to seek a situation in which i vay earlessness and independence would make him the butt of scrupulous attack and organised opposition. Justification for exempting a Judge from criminal liability has been ummarised by Markby J in Chunder Narain Singh v. Birjo Bullub Gooyee, 4874 (14) Beng.L.R. 254] thus: The duties which a Magistrate or Judge usually performs are of uch a nature as to render it absolutely necessary for their due erformance that he should have that protection. He has generally ither to punish an offence or to vindicate the rights of a private dividual; and if he were hampered by fear of the consequences which ight arise from a mistaken conclusion, he could not have that independence of mind which is essential for the discharge of such unctions as these. This protection is not confined to persons holding nd exercising a regular judicial office, but it extends to any person hose duty it is to adjudicate upon the rights or punish the misconduct f any given person, whatever from their proceedings may take, or jowever informal they may be.” Section 77 of the IPC protects the acts done by a Judge. Section 19 of the IPC defines the word ‘Judge’ thus: “The word ‘Judge’ denotes jot only every person who is officially designated as a Judge but also very person, who is empowered by law to give, in any legal proceeding, ivil or criminal, a definitive judgment, or a judgment which, if not appealed gainst would be definitive, or 4 judgment which, if confirmed by some ther authority, would be definitive, or who is one ot a body of persons, hich body of persons is empowered by law to give such a judgment. Ccording to illustrations, @ Collector or a Magistrate or a Member f a Panchayat are deemed to be Judges.Unde . " Section 77 of the IPC, the Judge is exe not only, the exercise of mpted in thos . . a pane eee which he proceeds irregularly in a, in god faith exceeds hi © caw gives him; but also in cases emai Judges from crimi is jurisdiction and has no lawful powers. It pro 9 criminal process just as the Judicial Officers Protect” Act, 1850 and the Judges (Protection) Act, 1985 saves tn? from civil Suits. d to acts done in t ers. m Judicial acts are not confine he open Court, but also include orders passed in Chamb' under Section 77 does not extend However, the privilege of Judges i to acts when a Judge knowingly exceeds his authority oF 8 ae contrary to law. For instance, if a Jud: or ri his nae he is as much liable as an ordinary man Coe : Section 78 is a corollary to Section 77 of the ie oo an of the IPC refers to acts done pursuant to the judgmen fi doe er of the Court. Section 78 is wider than the one given to a Judge in Section 77. Section 78 of the IPC 9g the authority or order of a Cou jurisdiction or the order happene ige assaults would officers acting under rt of Law even if the Court had no d to be erroneous. For instance, a Magistrate who is au ‘ection 5 of the Gambling Act, 1867, to issue a search warrant, on credible information only, issues a warrant to arrest a person without any such information, the police pursuance of such an order is not officer, who arrests the man in liable for committing an offence. As the arrest was made under the direction of a Court, the police officer is protected from conviction in spite of the fact that the warrant was defective in law, and, consequently, illegal. 'o riparian of Section 78 of the IPC cannot be extended a perwon if he ae orders of a Judge. It also does not protect 3 a cidiosion than Eh iter tours him by a Court. Apart Delhi dudilel Service Asec by these sections, the Supreme Court in [AIR 1991 eS pa Association, Tis Hazari Court v. State of Gujarat. of judicial officers : ve issued certain directions in respect of arrest case. If circumstance: ° event of their being involved in a criminal arrest may be eiloced and the c immediate arrest, a formal or technical and i : @ same be info cari are the Chiet Justice of the High Court. On rmed to the District Judge not be taken to the police station vi arrest, the Judicial Officer ‘ation without nrinr ards nt tho Mictrict rants protection to thorised under S1 CH Sent. Exceptions, ete, 2 Otc. against State & Pui ic Peace yage. The Supreme Court also gj 7 7 i rected that i 7 Judicial Officer is arrest fat in all a ed, handcutts should not erica nen It will be noticed that (a) Good faith; rder are the ; and (b) iat i . of the © only tWo requisites of an sematon tr anal om criminal ili der Section 78 jiability un of the IPC. Mi ° . Mistake e a good defence under Section 78, for in eae ae an order d was legal, a pei igsul 9 Person may be misled by a mistaken view of law as much as by a mistaken view of facts, accident as a defence in Criminal Law [Section 80] mn Section 80 of the IPC states r i 8 ; a ie garding accident in doing a lawful «go. Accident in doing a lawf ul act:— Nothing is an offen ; g ci which is done by accident of misfortune, and without any criminal peiarae or knowledge Lu the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.” Illustration: A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence. Accident is an event, which occurs all of a sudden and no man of ordinary prudence, could anticipate or foresee or expect it. In common parlance, ‘accident’ means “an event that occurs without one’s foresight or expectation and in the same way law also adopts it. Accident is not of itself a defence to a civil suit, unless it was only an accident but also a misfortune. “Misfortune” means “an unfortunate incident, mishap or disaster”. Accident differs from misfortune. Accident causes injury to another, while the misfortune causes injury as much to himself as to another unconnected with the act. Accident and misfortune are good defences in Criminal Law. be accidel ith the intention ntal when the act by which it of causing it, and when uence of such act is not so probable dence ought, under the circumstances able precautions against it. An t of the ordinary course of The effect is said to is caused is not done wi its occurrence as a consed that a person of ordinary prt in which it is done, to take reason: accident is something that happens ou things.The ingredients of Section 80 of the IPC are: i) The act must be an accident or imiefortunes / ii) The act must not be done with any criminal intention 9, knowledge; iii) The accident must be the outcome of a lawful act done in lawful manner by lawful means; iv) The act must have been done with proper care and Caution, In Stephen's Digest of Criminal Law the following illustrations are given that elucidate the nature of acts that may be regarded as accident: a) A, a schoolmaster, corrects a scholar in a manner not intended or likely to injure him, using due care. The scholar dies. Such a death is accident. b) A turns B, a trespasser, out of his house, using no more force than is necessary for that purpose. B resists, but without Striking A. They fall into a tussle and B is killed. Death is accident. c) A, a workman, throws snow from a roof, giving proper warning. A passenger is nevertheless killed. Such a death is accident. In Tunda v. Rex, [AIR 1950 All. 95], A and B were friends. During the wrestling bout, B received head injuries and died, when he was thrown by A. It was held that the injuries were accidental and not intentional and A was protected under Section 80 of the IPC. in his death. It was held that the death wa: S Caused by accident and was not the result of rash Or negligent s| hooting. ‘In Jageshwar v, Emperor, [AIR 1924 Oudh beating @ Person with his fists, when the latter’ child on her shoulder interfered. The accused blow struck the child on its head. The baby the blow. It was held that although the child accused was not doing a lawful act in a lawful and therefore the defence under Section 89 to him. . 228], the accused was S wife with a two month hit the woman but the died from the effect of was hit by accident, the manner by lawful means of IPC was not availableIn Bhupendrasinha | Chua, scC 603], the accuseq and th lasama head constable. They \. State of g, lec ere poy '8Sed Were ujarat, [AIR 1998 Police Constable and fe killed his colleague jn the ni _ hg molect a da the identity of his target. The x fi a g0. The Supreme Court Confirmeg Court under Section 302, ang held that 4 proper care and Caution, ang that the act al : under an accident or Misfortune nor was ita Stephen's Digest of Criminal Law gi : ives i accident which does not Come under protect he example relating to the IPC. A takes up a gu oints it in the direction " : shot dead. Such a death is cae soe Pal ine tigger. B believe that the gun was accidental, although he ha ascertain whether gun wa: IM site. The accused lose Tange without knowing d pleadag defence of Section N given by the High ccused acted without cused could not come Convictioy id not us provides: “81. Act likely to cause harm, but done without criminal intent, and to prevent other harm:- Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the Purpose of preventing or avoiding other harm to person Or property.” Explanation:— It is a question of fact in such a case ven! the harm to be prevented or avoided was of such . aa 2 imminent as to justify or excuse the risk of doing knowledge that it was likely to cause harm. Mlustrations: suddenly and without any (6) A, the captain of ae himself in such a Position nul oF negligence o stop his vessel, he must inevitably run that, before he eae or thirty passengers on board, unless poe Maod * aio of his vessel, and that, by changing he changes therei his course, he must incur risk of running down 3 bow © with only two passengers on board, which he may ° ‘o hos “(ear Here, if A alters his course without any roof avokting te the boat C and in good faith for the pure ia not golly * danger to the passengers in the boat fhe peat C'by Goin an offence, though he may run down Me fe an act which he knew was likely t cause which he intoniiad found as a matter of fact that the danger merits the Hsk Gf to avoid was such as to excuse him in in running down the boat / (b) A, in a great fire, pulls dH te ee Pah astgas conflagaration from sprea' ing. He | tenth and in good faith of saving human a eden, Here, if it be found that the harm to be Clay a ; . cl a nature and so imminent as to excuse A’s act, A is not guilty of the offence. To invoke the defence of necessity under Section 81 of the IPC, the following ingredients are to be satisfied: i) Though the wrong-doer knows that the act is likely to cause harm, it is done without any criminal intention to cause harm. [Absence of | mens | real. ii) The act must have been done in_good_ faith; ill) The act must have also been done for the purpose of preventing or avoiding other harm; iv) The harm aimed to be prevented or avoided may relate to person or property. ‘By necessity’ is meant a situation where conduct promotes some value higher than the value of the literal compliance with the law. wi . hen there are two dangers causing two harms in front of a Person, under unavoidable circum: i f stances, he i Is excused to commit less harm sdaigaioga ;, which come i penalised. Under such critical circum: epunder crimento.be what he is doing. He is compe stances the ‘son who acts knows ng-doing. If he doesPollard observes, “In eve TY law 4 " en, h they nr a man may bre, k ere are some things, whi break the law itself and such thing, MO"US Of the lay” hich when law, and th _ 9S are » and yet not of the © law p ®xempted out of the analy ; TOVides pri: done against ti “S Privile at breakin tha | he Teter of i reaking qo” {Mem although they not br 9 ‘AW, SO long a Ng the words of the law is Of the law ig Not broken. itis a COMMON proverb, ‘quog ne et legem’ — ‘necessity ; cessit knows n0 law’. There is anoth Sitas non hab er pro 1 mnecessity overcomes the lay, Ve ‘necessitas vinci, legem’ - is on the princi i It i p nciple of ®©xpediency that the |, necessity as an excuse in criminal Cases. In other ir tnoceaaty forces it justifies, namely quod necessitas, Cogit defen om hal which necessity compels, it justifies’, , om aie he dropped a section on Necessity from his Draft Code of 1879. Ken observed that, “it is just possible to imagine cases in which the expediency of breaking the law is so Overwhelmingly great that people may be justified in breaking it but these cases cannot be defined beforehand. Circumstances or cases where necessity may be pleaded as a defence: Section 81 of the IPC stresses three conditions to claim exemptions from criminal “responsibility, namely:— i) Self-defence, and presentation of violence; ii) Prevention of harm to the accused at the expense of an innocent person; ili) Choice of evils affecting person other than the accused. Self-defence: i it ibit t in his himself for doing prohibited act ne conte ow ty under Section 81 of the self-defence or for protecting his prope! IPC. The law relating to the necessity of self-defence is contained in 8 if i 106_of ‘ode. If A attacks against the person or capes = 7 or if A attempts to commit rape agains! ©. B a eee Iso C can kil in Kill A to protect his person oF id al Struggle to protect her honour. pts property anPrevention of harm to the accused at the expense of an innocent person: Lord Hale cites an incident in this regard. If the common Provision for the ship’s company fails the master may under certain emergency conditions break open the private chests of the mariners and Passengerg and distribute the provision for the preservation of ship's company though such act of stealing invites penalty. Self-preservation: Everyone has the right to preserve his life. The question is, how far the necessity of preservation of one’s own life justifies the causin, of harm to an innocent person. Stephen has cited the case of two drowning men struggling for a plank which could support only one, If one pushes the other who is then killed by drowning, he would not be guilty because he left him to a chance of picking another plank and he did so because of compulsion by necessity. The person who succeeds in throwing another to save his own life cannot be punished under the penal law. Hobbes in Leviathan says, “If a man by the terror of present death be compelled to do an act against the law, he is totally excused; because no law can oblige a man to abandon his own preservation’. The relevant leading English case on the point of necessity is — ‘Queen v. Dudley and Stephens, [1884 (14) QBD 273)’. In this case, in 1884, the respondents including one Brook, and the deceased, a boy between 17 and 18 years of age, the crew of a registered English vessel were cast away in a storm on the high seas. They had no supply of water or food. On the 18th day prisoners spoke of their having families, and suggested it would be better to kill the boy so that their lives would be saved. Stephens agreed to the act, but Brooks dissented from it. Dudley, with the assent of Stephens, went to the boy, who was extremely weakened by famine, put a knife into his throat and killed him. The three men fed upon the body and blood of the boy for four days; after which the boat aA pin up by a passing vessel, and the prisoners were rescued, After reaching the shore, they were prosecuted and tried for the murder of the boy. The accused pleaded the defence of ‘necessity’ to get exemption from the criminal liability.ll, Girt] __ Genk. Exceptions, etc, Saw Pune 12 The Privy Council held the accused guity of murder and convicted them on the ground that- i) self-preservation is not an absolute necessity ji) no man has a right to take another's life to preserve his own; ii) there is no necessity that justified homicide. However, their sentence was later commuted to six months’ igonment. in another case, Dhania Daji v. Emperor, (1868 (5) BHC (Cr.C.) 5g], the accused placed poison in a toddy pot with the intention of detecting thief, who was in the habit of stealing toddy from his pots. The toddy was drunk by some soldiers who purchased it from an unknown vendor and it caused injury to them. The accused took the plea under section 81. It was held that the accused was guilty under Section 328 of the Code as there was no such necessity of detecting the thief by mixing poison intentionally and also with the knowledge that it would cause grave danger to the people. In Gopal Naidu v. State, [1922 (46) Mad. 605], a village Magistrate arrested a drunken person whose conduct was at that time a grave danger to the public. It was held that he was not guilty of an offence and was protected by Section 81 as it was an act done in private defence. In United States v. Holmes, [26 Fed Case 360 (1842)], the accused was a member of the crew of a boat after a shipwreck. Fearing that the boat would sink, he, under the order of the mate, threw 16 male passengers over-board. The accused though not convicted for murder was convicted for manslaughter and was sentenced to six months’ imprisonment with hard labour. In Maleverger v. Spinke, [1537 Dyer at 36(b) ER at 81], to stop the spreading of fire, the accused pulled down a hut and he was excused after finding him not guilty of offence. In Cope v. Sharpe, (1912 (1) KB 496], it was held justifiable to burn a slap of heather to prevent a fire from spreading. In R v. Mouse, [1608 (77) ER 1341], a bargeman threw the goods Of the plaintiff out of a barge in order to lighten the barge in a storm and for the safety of the passengers. In an action of trespass it was held that not only the bargeman but any passenger would be justified in taking any such action for the safety of the passengers, though the bargeman had overloaded the barge imp"Incapacity of a child [Doli Incapaxl [Minor - An exception to crime] or [Defence of Minority] [Sections 82 & 83] immune (exempted) from In Criminal Law, children or juvenile are i | i ions 82 and 8: criminal liability under certain circumstances. Section 3 of the IPC states thus: “82. Act_of a child under an offence which is done by @ © nga, Act of a child above S understanding:— Nothing is an Oo} seven years of age and under twel , maturity of understanding to judge the na’ fur his conduct on that occasion. Sections 82 and 83 of | the IPC deal | wi h the defence of infancy, which provides @ child, exemption from criminal liability. Section 82 of the Code deals with the acts of a child under seven years and Section 83 of the Code deals with the acts of a child _above seven years and under twelve years. ing of Section 82 and Section 83, which respectively confer immunity from criminal liability to a child ‘under seven’ and ‘above seven’, reveals that criminal liability of an infant of ‘seven’ years is left out. However, Hari Singh Gour, with a view to overcoming the lacuna, suggests that such an infant should be dealt under Section 82 rather than under Section 83 of the Code. The word ‘infancy’ means ‘childhood’. An infant is a child below the age of legal maturity/minority/18 years. Sections 82 and 83 of the IPC exempt the children from criminal liability. seven years of a je:—_Nothing is hild under Seven years of age.” even and under twelve of immature ffence which is done by a child above Ive, who has not attained sufficient e and consequences of In the legal sense both boys and girls were held to be infants under the age of 7 years and were immune from punishment under the English and the Roman Law. They are under a natural disability of distinguishing between good and evil. The children are treated on ompted boy a6 they are innocent and uncorrupt. Thus children are an, 3 m e criminal and civil liabilities. In civil matters, a minor's eeiption ie pie Contract _ab initio is void. In criminal law, for giving Mader the ir criminal liability, children are made into two groups age of seven; and (ii) above seven years and below twel i i Nelve Years. Section 82 of the IPC provides complete exem from the criminal liability for apie 3G I Rape blll th complete.) seven years. SC1S done by a child below the age ofBoth under the English an 44 and the girl 12 they Were s, and, therefore, children abo committed by them. So the said to be doli incapax. eh © Roman Law w to AVE attaine, © this age were Children before the hen the boy becomes d the age of discretion, held liable for offences Y attained this age were with any ai : Agraganini (1874 (22) wR (Cr.) rh it Mavetlon In Queen y, Lakhini achild under seven years of the » It Was held In India a child below 7 Are years Of age is congj and cannot be endowed wit Nsidered to be dol incapax that if the accused were In Marsh v. Loader, [1863 (14) a child while stealing a piece of w into custody. Since the child was u 7 years) he was discharged. A child immune from criminal liability. CBNS 535], the defendant caught 100d from his Premises, and gave inder the age of responsibility (i.e. below 7 years of age is absolutely Section 83 of the Code considers a child above seven and under twelve years doli in compax to certain extent depending upon a variety of circumstances. In India, a child between 7 to 12 years of age is qualified to avail the defence of doli incapax if it is proved that he has not attained sufficient maturity of understanding to comprehend the nature and consequences of his conduct on that occasion. In order that Section 83 of the Code may apply, the child should not know the nature and physical consequences of ul act or conduct. It is not necessary for the prosecution to lead positive evidence e show that an accused person below 42 years of age had arrive é sufficient maturity of understanding within the meaning of Sc The non-attainment of rey of eee ° oe nie over 7 nder 12 years of age, any pie pe is in aceordan® with the Tone ety leaded Sxesption relied upon By & acclee Foe If no evidence or and established by evidence on his pl Se oad it tice of the Court, a Sicumstances is brought 10 Re NOt iat ne really did. The maturity that the child accused intended tan the nature and quality of the Of understanding can be ine” | ang other allied factors. The act, subsequent conduct of thEEEEIEEEEDEE-_E OO OO —————— words ‘consequences of his conduct’ do not mean penal consequences but the natural consequences which result from his act. y], an eleven year old chilg In A v. DPP [1991 (COD) 442 (DC l ( ) ‘ e vehicle and then running was prosecuted for throwing a brick at a polic , away. The Court observed that the justices were not entitled to Conclude from the child's appearance that he was normal in respect of incurring criminal responsibility. The test is whether the child knew that what he was doing was seriously wrong and went beyond childish mischier, Running away was not by itself sufficient to rebut the presumption of doli incapax. A naughty child would run away from a parent or teacher even if what he had done was In Heeralal v. State of Bihar, [AIR 1977 SC 2236] the accused, a child of eleven years old, threatened the deceased that he would cut him to pieces. Accordingly, the accused killed him with knife. In the prosecution, the defence was pleaded under Section 83 of the Code. The Trial Court convicted the child and held that the boy was not entitled to get the immunity under Section 83 because his words, gesture, assault, keeping a knife in his pocket, stabbing the deceased etc. showed that the child had attained sufficient maturity of understanding to judge the wrongful act and also the consequences of his act. The Supreme Court upheld the conviction by the lower Court on the ground that the accused child had sufficient maturity of mind to understand the nature and consequences of the act, while stabbing the deceased. In R. v. Krishna, [1883 (6) Mad. 373] a child of nine years of age stole a necklace worth Rs.2-8-0 and immediately afterwards sold it to accused for five annas (old coin with value of 1/16th of rupee) the accused could be convicted of receiving stolen property, because the act of the child in selling the necklace showed that he had attained a sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion within the meaning of Section 83 of the Code. The child could not get protection under the Section. His act amounted to theft. ot criminal. In R. v. Mariamutha, [9 Cr.LuJ. 392 (Mad.)] a girl aged about 10 = up a silver button and gave it to her mother. The itl 's not held liable for theft because the circumstances did not disclose at she had attained sufficient maturi ¥ judge that she had att : ffi it turity of understanding to ju'ee SS 'St State g B bil persons of unso, 4 lc Peace nd [Def Section 84) “nee of Insanity] section 84 of the Indian Pa of 2 person of unsound mina se! IS ej The ingredients of Section g4 wrong or contrary to law." 4) Act must be done by a person of 2) Such person must be incapable i) the nature of the act; or — ii) that the act was contrary to law: or ili) that the act was wrong. unsound mind, Of knowing, 3) Such incapacity must be by reason of _unsoundness of mind of the offender. 4) The incapacity of knowing the nature of act must exist at the time of doing of the act constituting the offence. Unsoundness of mind: The word unsoundness of mind has not been defined in the Code. ‘Unsoundness of mind’ is a state of not being mentally sound or normal. lt means a state of mind in which an accused _is incapable of knowing the nature of his act_or that he is incapable of knowing that fe | is doing wrong or contrary to law. There are four kinds of persons who may be said to be not of sound mind (non compos mentis). i) an idiot; ii) a lunatic_or mad man; il) one made_non compos by illness; and iv) one who is drunk. i) Idiot: mental power. An idiot is a person idiot i lost his m we noes not possess at tational_thinking capacity and completely lost his memory from his birth without lucid intervals. a 4 Iso ¢ ne who cannot count twenty or tell the days A en : ve hs does_not_know his father or mother or of the week or Wo vive . the like.