This Article is
written by Ritesha
Das, Symbiosis Law School, Hyderabad. In this article, she has discussed
the general defences available under IPC.
The Indian Penal Code, 1872 not only outlines
various punishments for the crimes but also provides various defences acting as
a weapon of escape from the liabilities. Legal defences are broadly classified
under two categories: Excusable defences and Justifiable defences. The term ‘excusable
defences’ involves the commitment of a criminal offence by the defendant, but
the liabilities are exempted due to the absence of criminal intention (Mens
rea). A befitting instance of this defence would be an unsound person
committing a crime would not be held liable due to the absence of Mens rea
(Criminal Intention). Excusable defences include Mistake of facts, Accident,
Infancy, Insanity and Intoxication. Justifiable defences involve the
acknowledgement of defendant of committing a criminal offence under the
justified circumstances, due to which the liabilities are neutralized.
Justifiable defences mainly include Necessity, Consent, Drunkenness, Trifle and
Private defence.
The defence of mistake of facts is covered
under section 76 and 79 of IPC. According to the maxim ‘ignorantia facti doth
excusat ignorantia juris non-excusat’, a person committing an act will fall under
the shadow of an offence under the misconception of facts if it was committed
believing in good faith and also backed by the law. The above statement simply
means that if the defendant justifies that he does the act due to a mistake of
fact or misunderstanding of some fact negating an element of the crime, he is
immune from the criminal liabilities to be imposed for the consequences of such
acts. But a person can’t eliminate his liability from the intentional mistakes.
Essential
elements
- The act done must be
justified by law.
- The act must be done in
good faith and good intention.
- The degree of mistake
should be unintentional.
Relevant
case laws
In
the above case, the court held that the accused, in false assumptions brought a
cart and the cartman to the police station, believing that the plaintiff was
indulged in the offence of smuggling rice. The court held that the act was done
in a good faith and belief; hence the accused can take the defence of mistake
of facts for neutralizing the liabilities to be imposed as the consequences of
this act.
In
the above case, the accused while guarding his field shot an arrow on the
moving object in a good faith believing it to be a bear, but the shot resulted
in the death of a person. The court held that he is entitled to get the
immunity under the mistake of fact.
Generally, the law does not strive at punishing a man
for the conduct of actions beyond his control. The maxim ‘Actus non facit reum
nisi mens sit rea just’ identifies that criminal law requires a kind of guilty
mental element for punishing anyone to inflict justice. This implies that a
person when does not intend and cannot even contemplate occurrence of a certain
course of events, cannot be held responsible for the happening of that event. The defence of ‘accident ’is defined
under section 80 of IPC. The term accident covers all the unforeseen and unanticipated
vicissitudes from the ordinary course of elements. The liability of an offence
committed by an accident involving a lawful act done in a lawful manner by
lawful means exerting due care and caution will be neutralized in the absence
of criminal intension.
Essentials elements
- The act committed must
fall under the purview of ‘lawful acts’ and must be done in a lawfully by
lawful means.
- The act must be done
with due care and caution.
- The act should not
involve any criminal intention.
Relevant
Case laws
- In the case of Tunda V. Rex,
[iii]The accused and the
deceased were engaged in wrestling combat, due to which the deceased was based
on the head resulting in his death. The court held that while indulging in wrestling
combat, there was implied consent to all the accidental injuries. The death was
accidental and the accused did not play foul, hence the benefit of sections 80
and 87 was given to the accused.
This case clarifies the notion that an act does
not benefit from accident unless it is unintentionally done with due precaution
and care. For instance, a host loading his pistol with bullets for firing,
ending up to fire at someone was not an act exerting proper care and caution.
-
In another similar case of Bhupendra Sinha
Chaudasama v. State of Gujarat [v], the accused shot his
colleague at a close range without knowing the identity of the target, reflecting
the absence of care and caution. The accused was not entitled to claim the
defence of accident.
The defence of insanity is defined under section 82
and 83 of IPC which involves the neutralization of liability for any criminal
act committed by a child below 12 years, who is immature enough to rationalize
the repercussions of his conduct. The legal maxim ‘Doli Incapax’ is that a
child under 7 years of age has no capacity to segregate between rights and
wrong, thus the question of mens rea or criminal intention does not arise. For
instance, if a child of 9 years stabbed his mother with a knife in the cloud of
immaturity, he will be exempted from his liability before attained the age of maturity.
Essential
elements
- Act is done by a child below
12 years of age.
- Has no capacity to
discrete between right and wrong.
- Cannot rationalize the repercussions
of his conduct due to immaturity.
Relevant
case laws
In the case Krishna Bhagwan v. State of Bihar[vi],
the court held that during a trial, an accused child has attaining the age of
seven years can also be convicted if he is mature enough to have the basic
perception and understanding of the offence committed by him.
In the case
of Hirelal Mallick V. State of Bihar[vii], a child of 12 years was convicted for murder.
The 12-year-old had stabbed deceased
with a sword and ran away. There was no evidence highlighting the degree of maturity
or understanding of the consequences of his act therefore, the conviction under
section 326 of IPC was upheld.
The
rule of insanity has been used as a weapon for the protection of mentally
unstable people against criminal liabilities. Whenever an insane person commits
a crime because of the consequence of his insanity, he has no guilty mind to
realize that his acts are law-abiding and hence he is immune from his
liabilities. The insanity law has proven to be of real significance in recognizing
an insane person’s condition and state of mind and has provided an exemption
from criminal liability under some appropriate circumstances.
Essential elements
- The accused must not be
in a state of sound mind at the time of committing the act.
- The accused must not able
to distinguish the nature of his acts that are contrary to the law.
Relevant case laws:
In
the case of Venkatesh v. State of
Karnataka, [viii]the
accused not only sprinkled chilli powder on the victim’s face but also clasped his
hair and assaulted him. Ingredients of Section 307[17] were proved. After meticulous
scrutiny of pieces of evidence and the victim injured, the other eye-witnesses
established the fact that accused had a stable mental condition during the time
of the assault and hence, it was held that benefit of Section.84 under Indian
Penal Code cannot be extended to him and conviction is not liable to be
interfered with.
In
the above-renowned case, the Court was well aligned that the key point where
the dysfunctional mind can be assessed is the moment at which the crime is
actually committed, and whether the accused has the right to immunity from
section 84 can only be known from the preceding, participating and following
circumstances. In other words, it is an antecedent behaviour, an attendant and
a follow-up to an event that may be relevant in assessing the mental condition
of the accused at the time of the commission of the offence, but not of those
remote in time.
In the case of Shrikant Anandrao Bhosale V.
State of Maharashtra[x], the husband killed his wife while he
was suffering from paranoia schizophrenia. The Court allowed him the defence of
insanity as he was not fully aware of his conduct and its consequences.
The defence of Intoxication
is defined under section 85 and 86 of IPC. It is only allowed in the cases
where the defendant could not understand the nature and the degree of
consequences of his own act due to intoxication. In simple words, intoxication
is regarded as a state of mind in which a person loses his self-control and the
ability of assessment. The application of the defence of intoxication has a
narrow scope due to its applicability in very limited circumstances depending
on the nature of intoxication and the level of intent required by the criminal offence.
The term intoxication is further classified into Involuntary and voluntary
intoxication. Involuntary intoxication occurs when someone is manipulated or
compelled to consume the substance like drugs or alcohol. An allergy to or
unintended effects of legally prescribed medications may also lead to
involuntary intoxication. Under voluntary intoxication, the defendant voluntary
consumes the substances like drugs or alcohol for intoxication. Defending
voluntary intoxication is far more complicated and challenging than involuntary
intoxication. Under established legal standards, voluntary intoxication is a
defence only applicable to certain crimes and even in those scenarios; the
court is far less likely to accept the defence of intoxication when the defendant
has brought the intoxication on its own.
Essential elements
- The incapability of the
defendant in understanding the nature and consequences of his own actions due
to intoxication.
- The absence of Mens rea
while committing any act during the state of intoxication due to the inability
of the defendant in forming a criminal intention.
Relevant case laws
In the above case, the Section 85 of the
IPC was analyzed by the Supreme Court and it held that the evidence of
drunkenness was held to demonstrate that the accused is incapable of having a false
intention and that the defendant is bent on committing the crime. This does not
protect someone who consumes intoxicants voluntarily as the individual loses
his or her mental ability due to his consent, i.e. through self-induced
intoxication.
In the case of Basdev v. State of
Pepsu, [xii]The
intoxicated appellant had been seated next to a child at the wedding meal. He
asked the child to switch to a more comfortable sitting spot. On the refusal of
the child, he shot him in the abdomen ending with the death of the child. The court,
after scrutinizing the circumstances, did not neutralize the liabilities of the
defendant on the grounds of intoxication as the absence of Men Rea could not be
vindicated.
The application of defence of
necessity involves the criminal conduct of a person to mitigate additional
damage during an emergency situation. Such scenarios vindicate the criminal act
of the defendant and hence the defendant is immune from the criminal
liabilities. Necessity is based on maxim salus populi suprema lex, i.e. ‘the
welfare of the people is the supreme law’. It is defined under section 81 of
IPC. Necessity is further categorized into Public necessity and private
necessity. Public necessity concerns with the need of public authorities or
private individuals to avoid a natural tragedy or a public calamity. The action consists of damaging or
appropriating the property of another. Private
necessity stems from self-interest rather than from society at large. Under
private necessity, the defendant intends to safeguard his own interest. Like public
necessity, it does not act as an absolute shield.
Essential
elements
- The defendant must consider
his act as a weapon to alleviate the degree of threat requiring immediate
action.
- There must be no realistic
alternative other than the criminal act committed by the defendant.
- The degree of damage by
the criminal act must not be greater than the damage to be caused if such act
was avoided.
- The accident or the
emergency circumstance must not be a contribution of the defendant.
Relevant
case laws
R v Willer[xiii],
the defendant had driven impudently to avoid a crowd of youths intended to
cause physical harm to the passengers in his car. The Court of Appeal held that
the context of the circumstance highlights the apparent threat of death. Hence
the defendants should be allowed to present the defence of necessity to the jury.
In the case of R v Dudley and Stephens[xiv], A ship was shipwrecked by a storm as a result
of which three adults and one minor were stranded for 18 days. Due to the
unavailability of food and water for more than 5 days, one of the adults
proposed to sacrifice the minor boy but this proposal was reprimanded by
others. One day the boy was killed by one of them as he was near death and had
no relatives. The defendant was not granted the defence of necessity and hence
was convicted for murder.
The term consent
means permission or agreement of doing a particular thing. The defence of
consent is elucidated under Section 87 to 91 of IPC. This defence basically
involves consenting to a particular act or event despite knowing the repercussions
or consenting to any action or conduct done for the benefit of the victim. It
arises in non-fatal cases where a criminal act may have been committed. Consent
involves awareness, deliberation and full knowledge of the expected consequence.
The consent obtained by fraud or misrepresentation or undue influence or
coercion or intoxication or minor will not amount to free and valid consent.
The consent can be made either impliedly or expressly.
Essential elements
- The consent obtained
should fall under the ambit of ‘free consent’.
- The defendant must have
the full knowledge of every possible consequences of the act or event for which
the consent was obtained.
- The acts involving
intentional infliction of harm to the plaintiff will fall under this section if
the plaintiff voluntarily consents to such acts.
Relevant case laws
In the above case,
there was no question that the accused had sexual relations with the victim on
a false promise of marriage. The High Court of Gauhati held that a woman’s
consent through fear and ambiguity of facts could not be considered to
constitute consent and the condemnation of individual accused under sections
376 and 417 of the Indian Penal Code was necessary.
In the case of
Poonai Fattemah v. Emp[xvi],
the accused who professed to be a snake charmer impelled the deceased to
believe that he could protect him from any harm caused by a snake’s morsel. The
deceased trusted him, was bitten and died by his snake. The defence of consent
was rejected.
The defence of
duress is the shield covering the victims of insufficient distress under the
common law. This defence is defined under section 94 of IPC and
is applicable to all crimes except murder. To be immune, the defendant has to
show that his criminal actions were an immediate response to the threats of
death or serious harm. Though violence can’t be
seen as a pretext for a crime, it may serve as an excuse to use physical forces
depending on the assessment of the circumstances. It is analogous in some
ways to self-defence because it results from the threat and fear of possible
death or serious bodily harm, and it allows the criminal to have a rational
belief that the threat will be carried out. Moreover, it also requires proving
that there was no alternative to commit the crime. There is a fine line between
an acceptable and unreasonable strain that has been changing over time.
Essential elements
- The criminal act of the defendant must be in
response to an immediate constant threat of serious bodily harm.
- There must not be an alternative to escape
safely, except by committing the unlawful act.
- The defendant must
consider his act as a weapon to alleviate the degree of threat requiring
immediate action.
Relevant case laws
In the case of
Antonio v Antonio[xvii],
The wife surrendered to a long battle of threats of abuse and coercion by her
husband and relocated half of the shares to her company and entered into a
shareholder arrangement with him, the court found that both the transfer and
the deal were due to hardship. The court didn’t even inquire if she had any
realistic alternative, such as finding proper redress.
In the case of
Astley v. Reynolds, [xviii]the
money was paid to the defendant under duress of goods. The availability of an
alternative legal remedy did not prevent the court from drawing the conclusion
that the payment was caused by illegitimate pressure.
The defence of
trifle is defined under section 95 of IPC. This section is based on the legal
maxim, ‘De minimis non curatlex’ which means the law does not take account of
the trifles for promoting social harmony and adjustments. The term trifle means
‘less value or importance.’ Under this defence, the defendant can neutralize
his liability by proving that the acts committed by him has caused or is likely
to cause a negligible degree of damage to which a prudent man would never
complain. The application of this defence ranges from accidental to deliberate
acts.
Essential elements:
- The degree of damage
caused by the action of the defendant must be negligible.
- The act of the defendant
can be unlawful.
- The act of the defendant
can be deliberate or intentional.
Relevant case laws
In the case of Bichittranand v. State of
Orissa[xix],
the accused was involved in the selling of mustard oil which was slightly inferior
to the purity standard. The variation was urged to be only slight. The plea was
rejected.
In the
case of Veeda Menezes v Yusuf Khan, [xx]it
was held that whether the act is trivial or not, depends upon the nature of the
injury and the knowledge of the act and the position of the parties.
The term private
defence simply means to authorize a private person to use a reasonable degree
of force to protect himself or others against any immediate threat. Section 96 to 106 of the Indian Penal Code
defines the provisions related to the right of private defence of person and
property. The provisions under these sections grant a green signal to a person
for using the requisite force against an intruder or a wrongdoer in order to
defend his own body and property, as well as someone else’s body and property
in the cases where immediate assistance from the state apparatus is not readily
available and hence those acts are justified under the law. Self-help is a
crucial aspect of criminal law. The right of private defence is absolutely
necessary for the protection against the natural privileges of one’s life,
dignity, liberty and property. But the nature and the degree of force is
regulated by law. A rational fear can only be justified if the victim has a
genuine perception that there is a risk and that such a perception is fairly
supported by the actions of the aggressor and the circumstances around it. But
this defence can’t be granted against the acts of a public servant or against
those acting under their authority.
Essential elements
- There must be an immediate threat to life or property.
- A reasonable degree of force, depending upon
the nature and circumstances of an act or event, should be exerted.
- There must be insufficient time for informing the public
authorities
- The defendant must
consider his act as a weapon to alleviate the degree of threat requiring
immediate action.
- There must not be any reasonable alternative
way to escape other than the criminal act committed by the defendant.
Relevant case laws
In the above case,
the boy was raising a cloud of dust on the street due to which he was beaten by
a passer-by. It was held that the passer-by committed no offence. His act was done
in exercise of the right of private defence.
In the above case,
the accused gave a blow with a Ballan on the deceased’s chest as the deceased
hit the father of the accused with a stick. The court ruled that the accused
has exceeded his right of private defence.
In the above case,
the workers of a factory threw brickbats. The factory owner shot a fire with
his revolver which resulted in the death of a worker. It was held that this
section did not protect him as there was no apprehension of death or grievous
hurt.
[i] Keso sahu v. Saligram Sha, 1977 CLT 615
[ii] State of Orissa v. Ghora khasi, 1978 CriLJ 1305
[iii] Tunda v. Rex, AIR 1950 All 95
[iv] Shankar Narayan Bhadolkar v. State of Maharashtra, AIR 2004 SC 1966
v Bhupendra
Sinha Chaudasama v. State of Gujarat, 1998 Cri.LJ 57
[vi] Krishna
Bhagwan Roy And Ors. vs State of BiharJT 2002 (6) SC 523
[vii] Hirelal Mallick V. State of Bihar AIR 1977 SC 2236
[viii] Venkatesh v. State of Karnataka, AIR 1992 SC 674
[ix] Rattan Lal v. State of M.P JT 2002 (7) SC
627
[x] Shrikant Anandrao Bhosale V. State of
Maharashtra, (2002) 7 SCC 748
[xi] Mubarik Hussain V. State of Rajasthan (2006) 13 SCC
116
[xii] Basdev v. State of Pepsu, AIR 1956 SC 588
[xiii] R
v Willer (1986) 83 Cr App R 225
[xiv] R v
Dudley and Stephens (1884) 14 QBD 273
[xv] Jakir Ali v. State of Assam, 2007 (3) GLT 497
[xvi] Poonai Fattemah v. Emp (1869) 12 WR (Cr)
7
[xvii] Antonio v Antonio [2010] EWHC 1199
[xviii] Astley v. Reynolds, 1731 2 Str 915
[xix] Bichittranand v. State of Orissa, 2001 II OLR 205
[xx] Veeda Menezes v Yusuf Khan, 1966 SCR 123
[xxi] Parichhat vs State of M.P AIR 1972 SC 535
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