ALL YOU NEED TO KNOW ABOUT THE GENERAL DEFENCES UNDER IPC

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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.

MISTAKE OF FACTS

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

·        Keso Sahu v. Saligram Sha[i]

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.

·        State of Orissa v. Ghora khasi[ii]

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.

ACCIDENT

 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.

·        Shankar Narayan Bhadolkar v. State of Maharashtra[iv]

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.

 INFANCY

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

·        Krishna Bhagwan v. State of Bihar

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.

·        Hirelal Mallick v. State of Bihar

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.

INSANITY

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:

·        Venkatesh v. State of Karnataka

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.

·        Rattan Lal v. State of M.P[ix]

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.

·        Shrikant Anandrao Bhosale V. State of Maharashtra

 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.

INTOXICATION

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

·        Mubarik Hussain V. State of Rajasthan[xi]

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.

·        Basdev v. State of Pepsu

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.

NECESSITY

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

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.

·         R v Dudley and Stephens 

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.

CONSENT

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.

·        Poonai Fattemah v. Emp

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.

DURESS

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

·        Antonio v Antonio

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.

·        Astley v. Reynolds

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.

TRIFLES

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

·        Bichittranand v. State of Orissa

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.

·        Veeda Menezes v YusufKhan

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.

PRIVATE DEFENCE

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

·        Kamparsare vs Putappa

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.

·        Parichhat vs State of M.P[xxi]

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.

·        Mohinder Pal Jolly v. State of Punjab[xxii]

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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