GENERAL DEFENCES (I.P.C), Study notes of Criminal Law

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General Exceptions (IPC)

Dr. Ravulapati Madhavi

Associate Professor of Law

Dr. MCR HRDI

• The Indian Penal Code, 1860 consists of 23

chapters, 511 sections. (V-A; IX-A and XX-A were

added) The code was passed on 6th. October, 1860,

but came into effect from 1-1-1862.

• The Charter Act of1833 facilitated the emergence of

this code under the stewardship of Lord T.B.Mac

aulay.

• This codified statute is a substantive general law of

crimes in India, and is exhaustive in respect of

matters covered by it.

STRUCTURE OF I.P.C.

GENERAL EXCEPTIONS (I.P.C)

• When a person proved with the commission of an offence, and ought to have

been punished by law, if he is exempted from such legal punishment under special conditions stipulated in the law, it is known as General Exception.

• Ch.IV comprising of Ss-76 to 106 deals with the General Defences in the

Indian Penal Code.

• In fact, these provisions indicate the absence of mens rea element in the acts

of commissions and omissions on the part of the perpetrator of the offence.

• When a person is accused of any offence, the burden of proving the existence

of circumstances bringing the case within the exception lies on that accused person.

CATEGORIES OF EXCEPTIONS

• • i) Mistake of Fact … Ss – 76, can be divided into seven categories –
• • Ii) Judicial acts …. Ss- 77,
• • iii) Accident S-
• • iv) Absence of criminal intent … Ss-81-86, 92-
• • v.) Consent …. Ss 87-
• • vi) Trifling acts …… S –
• • vii) Private Defence …. Ss-96 –

MISTAKE OF FACT

Act of a person –

• i) bound by Law to do it (s-76)
• Ii) Justified by Law to do it (s-77)
• Sec – 76 provides immunity for the acts of a person who is bound by law- done in good faith- and by reason of mistake of fact, not by mistake of law. (Excusable act) Ex. A police firing at a rioting mob under lawful orders, did not commit any offence. ii) Arrest by police a wrong person under mistake of fact. In Shew Mangal’s case, it was held that a subordinate officer carrying the orders of his superior, is not liable.

Contd…

• S-79 provides exemption from criminal liability in respect of acts of a person justified, or believing himself to be justified by law. Rao Bahadur Thapa’s case – Gurkha killing innocent women under the impression of apparitions.
• S-79 is complimentary to Sec-76. Sec-76 deals with a real or supposed legal obligation and S- 79 deals with a real or supposed legal justification.
• Under S-76 a person believes that he must act in a particular way and under S-79, a person thinks that he has justification for action and acts accordingly.

INCAPABILITY

• CLASSIFIED INTO –
• 1. INFANCY – S-82, 83
• 2. INSANITY – S-
• 3. INTOXICATION – S-85 & 86
• Sec-82 exempts a child under 7 yrs. of age from criminal liability – Doli in capax. – absolute immunity.
• Sec-83 exempts act of a child above 7 yrs. and under 12 yrs. – qualified immunity.
• Child should not have attained sufficient maturity of understanding to judge the nature and consequences of his conduct.
• 9 yrs. Child picks up a necklace of Rs. 100/- from his friend’s house and sells for Rs. 20/- held child having sufficient maturity to understand the consequences 0f the act – no protection from S- theft.

INSANITY

Sec- 84 provides exemption from criminal liability in respect of acts of a person of unsound mind. (non compos mentis)

• At the time of the act, incapable of knowing the nature of the act and
• Not capable of understanding what he was doing was either wrong or contrary to law. Four kinds of persons with non compos mentis-
• i) An idiot – who is of non-sane memory from his birth, perpetual infirmity, without lucid intervals,
• Ii) illness leading to non compos mentis’
• Iii) a Lunatic – afflicted by mental disorder only at certain periods and vicissitudes
• Lunacy and madness are acquired insanity and idiocy is natural insanity.
• Iv) Intoxicated persons.

INTOXICATION

• Intoxication may lead to ‘dementia offectatia’, a state of mind equal to insanity i.e. the function of the mind is temporarily suspended.
• Ss-85 and 86 crystalize the law relating to acts committed by a person in intoxication in mitigating the rigor of law.
• Voluntary drunkenness cannot be a cloak of immunity.
• To claim exemption from criminal liability on the ground of involuntary drunkenness, it must be established that he was –
• i) incapable of knowing the nature of the act, or
• Ii) that he was doing what was either wrong or contrary to law, and
• Iii) that the thing which intoxicated him was given to him without his knowledge or against his will.
• Ex: A person committing an offence when made intoxicated by fraud, coercion or ignorance practiced by some one.

Contd….

• S-86 says- if an act is an offence only when done with a particular intent or knowledge, and such act is committed by an intoxicated person, he is liable unless he can show that he was intoxicated without his knowledge and against his will.
• Voluntarily drunken person will be liable as if he was sober when he did it- must be considered as an aggravation rather than a defence.
• Based on the principle – QUI PECCAT EBRIUS, LUAT SOBRIUS i.e. one who sins when drunk, should be punished when he is sober.
• Sarthi vs. State of M.P (1976) – Three drunken accused roughed up the deceased making him unconscious, and without ascertaining whether he was dead or alive, hanged him from the ceiling fan – state of intoxication gave the accused benefit to be convicted under Sec-304 IPC instead of under Sec-.

Contd….

• Sec-78 provides protection to officers acting under the authority of a judgment, or order of a court of justice.
• Act done in good faith.
• Belief in the legality of the court order.
• Protection is given even in respect of a defective or invalid order of a court.
• Ex. Police executing search warrant (Gambling Act) though the warrant is defective in law and illegal.

NECESSITY

• Act done to avoid other harm-s-81(inevitable Accident)
• QUOD NECESSITAS NON HABET LEEGEM i.e. necessity knows no law. Breaking the words of law is not breaking the law so long as the intent of the law is not broken.
• S-81 gives legal protection to the doctrine of salvage i.e. self-preservation. Permits a lesser evil to avert a greater evil.
• S-81 grants immunity to a man with respect to acts committed under compelling circumstances forced necessity. Conditions to be satisfied are i) The act must have been done without any criminal intention to cause harm; ii) The act must be done in good faith to prevent or avoid harm to other person or property iii) Harm done in order to avert a greater harm. (mother’s life to be saved over a child in the womb.) Ex. A captain of a vessel, without his negligence finds suddenly a small boat within a short distance, and hits it under forced circumstances to save vessel. Similarly, pulling down a house to prevent great fire spreading to other areas.

DURESS

• S-94 exempts a person from criminal liability in respect of an act committed under compulsion or duress. Based on the principle ACTUS NE INVITO FACTUS EST NISI ACTUS i.e. ‘an act done by me against my will is not my act’.
• This defence is subject to two exceptions (i) Murder and (ii) Waging war against Govt. of India, which is punishable with death. But English law permits a man to save his life at the expense of the state.
• The threat under S-94 must be of instant death to the person compelled to commit the offence.
• In R. vs. HASAN (2005), House of Lords held that defence of duress is not admissible when the accused voluntarily associates with others engaged in criminal activity.
• In R vs. Hudson and R vs. Taylor, charge of giving false evidence under threat of death by the other party – Trial court convicted and Court of Appeal set aside the conviction, the act of giving false evidence was under duress and threat of life.
• R vs. BOURNE – Defence to a charge of bestiality – husband compelled his wife to have carnal knowledge of a dog which was an offence – on appeal held that wife was terrorized by husband to commit such act against her will and defence of duress exempted her from conviction.

CONSENT

• Ss-87-89 & 92 say under what conditions consent may be pleaded as a defence to a criminal charge i.e. when the harm caused to the consenting individuals should not be punished in the interest of the community.
• S-87 gives immunity from criminal prosecution on the ground of consent in general.
• Ss-88, 89 and 92 extend protection in those cases only where harm is caused in good faith for the benefit of the consenting party. Intended to protect the interests of doctors and the like – VOLENTI NON FIT INJURIA operates.