UNIT:3

GENERAL EXCEPTIONS :

MENTAL INCAPACITY
Section 84 of Indian Penal code is the primary legislation dealing with the criminal
responsibility of mentally ill persons in india. This law is based on Mc Naughten Rules
enacted in England. In this paper an attempt has been made to discuss this section in
detail. . Key words: Mentally ill; criminal responsibility; section 84 IPC; Mc Naughten
Rules. Introduction: In law responsibility means liability 'to punishment.' This concept of
responsibility is fundamental to our view of man as a free, intentional being, and is said to
form the basis of criminal codes and punishment systems." A person can be held liable for
any act he commits, only if he does it with his wish and free will. It is considered that
motive is a must for a criminal act. A mere commission of act does not prove a person
guilty.
Law recognize the concept "actus non facit reum, 'nisi mens /sitrea", and "amens ne sine
mente" i.e. the physical act alone does not make a person guilty; the mental' component in
the form of evil intent (guilty mind) is equally important.'' , Plea of mental illness or
unsoundness of mind is usually brought forward by defence in order to save his client
from capital punishment.' The law presumes every individual at the age of discretion, to
be sane and to possess a sufficient degree of reason to be responsible for his criminal acts,
unless the contrary is proved to the satisfaction of the court.

A mentally ill person is not punished for his crime, as he is devoid of free will, intelligence
and knowledge of the act. Burden of proving this unsoundness of mind lies entirely on
defence. It does not mean that prosecution is free' from all responsibilities. Case is to be
proved by prosecution beyond reasonable doubt and then only plea of unsoundness of
mind is entertained. If case cannot be proved then accused is out rightly acquitted. If
defence can prove that accused was of unsound mind at the time of committing the
offence-then his responsibility diminishes. Depending upon the condition and nature of
offence, the accused can be sent to prison, psychiatric hospital, any other place of safe
custody or he may be acquitted. Concept behind this provision is that as such this person
was not in complete control of mind at the time of offence so he should not be punished.
Moreover, he need not be punished as punishment is already given to him by nature.

This provision can be dangerous sornetimes as all criminals will plead defence of insanity
in order to escape capital punishment. So, there should be a check guard for feigned
insanity. On the other hand, society must be protected against the attacks of a mentally ill
person.
In such cases we should be aware about the responsibilities of mentally ill in criminal
matters. A clear understanding of law in this subject is mandatory. This subject raises
various issues like: Are all mentally ill persons acquitted for any crime they commit?
What is the amount of mental illness necessary in this regard for acquittal?
Legally what is the borderline between sanity and' insanity? Are there any provisions for
punishing orrestraining mentally ill persons?
Are there any provisions to safeguard society from such individuals? These issues are
discussed in Indian Penal Code under section 84. This sections deals with act of a person
with unsound mind.
Mc Naughtem Rule:
Section 8 IPC is based on Mc Nauqhten's rules of 1843 in England. Mr. Daniel Mc
Naughten, while labouring under delusion of persecution killed Mr. Edmund Drummond;
private secretary of British Prime Minister Mr. Robert Peel in mistake for later. It was
shown that Mc Naughten had transected a business shortly before act and had shown no
signs of insanity. Defence put forth the plea of insanity and accused was acquitted. Due to
adverse public reaction, the House of Lords decided to probe into subject. Accordingly,
some questions were put before a bench of 14 judges in House of Lords. From the answers
given some rules were framed towards determination 'of criminal responsibility of insane
and were called Mc Naughten rules.4,6 It states that "in order to establish a defence on the
grounds of insanity, it must be clearly proved that at . the time of committing the act (or
making the omission), the accused was labouring under such a defect of reason from
disease of the mind as not to know the nature and quality of the act he was doing, or if he
knew what he was doing, that he did not know it was wrong."

Section 84 of Indian Penal Code:

Based on this law was drafted section 84 of Indian Penal Code, which says "nothing is an
offence whichis done by a person who, at the time of doing it, by reason of unsoundness of
mind, is incapable of knowing the nature of the act, or that he is doing what is either
wrong or contrary to law".
To be exempted under this section only proof of insanity is not enough. It should be clearly
proved that: Unsoundness of mind existed at the time of offence. This unsoundness
was of such a degree
Which rendered him incapable of knowing the nature of the act. . Even if he knew the
nature of the act he did not know that it was wrong or against the law.

A. Unsoundness of mind

B. Unsoundness should exist at

the timeof the
act

C. Nature of the act

If accused did not know the nature of the act he was committing then he is not
responsible for it., Similarly, if he knew the nature of the act but-did not know whether it
was wrong or contrary to the law he is not liable. On the other hand if the person did not
know the nature of the act but knew that it is wrong as contrary to law he is held
responsible.

Criticism of Section 84:

This Section is still based on outdated Me Naugliten rules of 1843. Even the country, which
had formulated then had brought some changes in them. Firstly, this Section considers
unsoundness of mind to be equivalent to disorders of cognition. The other forms of mental
illness does not hold good for plea. Various disorders of mind, which certifies him to be
mentally III, might affect his working to such an extent that he might loose control over his
actions. Lots of crimes are committed in a fit of anger or emotion. Just after committing the
act person may realize what he has done. But at that particular moment emotions have
controlled his actions. His cognitive functions might be absolutely normal.

Secondly, it considers such unsoundness to exist at the time of act. Here again no
consideration is given to condition prior to the act. Proper assessment of his pre act status
or conditions leading to' cause of act may help to figure out reasons for his act. Preqnancy
and child birth can lead to psychosis in women due to excessive stress and strain. In this
situation she can commit offence of infanticide. Here although her consciousness is clear
and there is no impairment .of cognition yet her emotional imbalance have led her to
commit the offence. If she is tried under Section 84 she will be convicted.
This is an injustice to such females.

Thirdly, it is mandatory fort a person to be acquitted under this action that he is unaware
of nature of act and or, its legality. Sometimes a person knows the illegality of his act but
then also in fit of anger, emotions as delusions he might commit some crime. In such
situations, conditions like irresistible impulse, obsessive-compulsive disorder, delusion,
emotions, fits of anger can offer a ground for medical insanity but will not constitute a
legal ground for acquittal. A depressed person may be driven by his mental illness to
commit suicide, but he may kill his dependent relatives (e.g. mother) before the act of
suicide. If he Is caught before killing himself he will be punished. As according to Section
84 he is liable, as he knows the nature as well as legal status of his act. Thus, it can be said
that medical proof ofinsanity is not legal proof for acquittal.
Although it may be hazardous to consider emotional aspects of crime as basis for acquittal.
As every criminal will plead them as defence and people will .be left with no logically
secure place short of total abandonment of criminal responsibility." But we should not
look only at these small number of cases. Though some criminals might be acquitted
wrongly but no non-guilty should be punished. The question of person's capacity to resist
temptation and of a person's responsibility is beyond easy understanding; they lie buried
in his consciousness into which no human being can enter.

Suggestions:
Although section 84 tries to deal fairly with mentally ill offender but sometimes there may
be false acquittals or convictions. So, there is need for incorporating wider concepts like
emotions; pre act situations etc. Scope of legal insanity is to be widened to incorporate
some more aspects of medical insanity. Stress should be on removing the crime and not
the criminal.
Most of such criminals are emotionally unstable and are .usually undeterred by
punishments' so care should be taken to improve and support them and not to punish
them. Other than this the family of such persons suffers from guilt and social stigma. They
should be supported and care should be taken to not to let entire family suffer because of
one Individual.

On the other hand, these criminals should not be let free in larger interests of society but
may be detained in psychiatric hospitals and proper assessment of their mental status is
to be made to avoid any false acquittals or convictions. Provision should be made for
examination by a psychiatrist in all such cases and fate of individual should not depend
only on discretion of one judge. Judge may be bound by law to give a particular judgment.
Opinion of doctor should be mandatory.
Proper analysis of this act has to be made and attempts should be made to modify it. In
foreign countries lot of cases have been decided on such issues and consideration have
been given to pleas of irresistible impulse. Doctrine of diminished responsibility has
become a latest issue in giving decisions. We should also keep us update of these
advancements and should' incorporate neswer provisions for a free and fair trial.

MINORITY
Apart from the various acts concerning children, The Indian Penal Code (IPC) also has a
list of offences against children. According to the sections 82 and 83 of the IPC a child who
commits a crime and is below the age of seven is not considered to have committed a
crime. A child who is between the ages of seven and twelve and is deemed to have
immature understanding about the consequences of his/her actions is also considered
incapable of committing a crime.
Section 315 and 316 discusses the offence of foeticide and infanticide. If a person commits
an act with the intention of preventing the child from being born alive or an act that
results in the death of the child after birth, that person is committing foeticide/infanticide
as long as they do not do it in the interest of the mother's health or life. If a person does an
act that amounts to culpable death which results in the quick death of an unborn child, he
will be charged with culpable homicide. Section 305 states that it is a crime for any person
to abet the suicide of a child, i.e. a person who has not completed eighteen years of age.
Section 317 states that is it a crime against children, if their mother or father expose or
leave a child in a place with the intention of abandonment. This does not prevent the law
from pursuing further if the abandonment results in the death of the child. The parents
would then be charged with culpable homicide or murder.
There are a number of sections in the IPC that discuss kidnapping and abduction. Section
360 states that kidnapping from India is the defined as the conveyance of a person beyond
the borders of India without their consent. 361 states that if a male minor of not yet
sixteen and female minor of not yet eighteen is taken from their lawful guardians without
their consent it is termed kidnapping from lawful guardianship. Section 362 defines
abduction as compelling, forcing or deceitfully inducing a person from a place. Section
363-A states, it is a crime to kidnap or maim a minor for the purpose or employment of
begging. If a person if found employing a minor for begging, and that person is not the
legal guardian of the child, it is assumed that the child has been kidnapped for the purpose
of employment in begging. Section 364 states that any person who kidnaps another for the
purpose for murdering or disposing of in a way that will lead to murder is punishable by
law. Section 364-A defines ransom kidnapping as any person who kidnaps another to
threatens to harm or kill that person in an attempt to get the government, or any other
foreign or state organisation to do or not do any act. Section 365 discusses kidnapping to
secretly or wrongfully confine someone. Section 366 states it is a crime to force or compel
or abuse a woman to leave a place in order to force her to marry or seduce or illicit sexual
intercourse from her by the kidnapper or another person. 366A specially outlines such a
crime being committed against a minor girl who has not attained eighteen years of age.
Section 367 states it is a crime to kidnap a person in order to cause them grievous hurt,
place them in slavery, or subject them to the unnatural lust of a person. Section 369 is a
specific crime of kidnapping a child under 10 years of age in order to steal from them.
Sexual offences against children are also covered in the IPC. Section 372 discusses the
selling of a child (below the age of eighteen) for the purpose of prostitution or to illicit
intercourse with any person, or knowing that it is likely that the child is being sold for
such a purpose. Section 372 states it is a crime to buy a child for the purpose of
prostitution or to illicit sex from any person.
Section 376 discusses the offence of rape. Under this section a man who rapes his wife,
who is not below twelve years old is given a lesser punishment. The section also discusses
special circumstances of rape such as rape committed by a civil servant or police man,
rape of a pregnant woman, gang rape or rape of a child below the age of twelve.

INSANITY,

MEDICAL AND LEGAL

INSANITY INSANITY IN
MEDICAL TERMS
Medically, insanity has not been comprehended to the general acceptance level.
Unsoundness of mind is the current and accepted notion of insanity by the medical
experts. “Doctors with
experience of mental disease contended that insanity does not only, or primarily affect the
cognitive orintellectual faculties, but affects the whole personality of the patient, including
both the will and emotions. Medical conception of insanity can be defined as a mental
abnormality due to various factors existing in varying degrees. In wider connotation, it
includes idiocy, madness, lunacy, mental derangement, mental disorder and every other
possible form of mental abnormality known to medical science. It recognizes sudden and
uncontrollable impulse driving a man to kill or to cause injury within the scope of insanity.
However the legal concept of insanity widely differs from that of the medical concept. The
scope of the meaning of insanity in medical terms is much wider when compared to its
legal meaning.

INSANITY IN LAW
Insanity or unsoundness of mind is not defined in any act. It means a disorder of the
mind,which impairs the cognitive faculty; that is, the reasoning capacity of man to such
an extentas to render him incapable of understanding consequences of his actions. It
means that theperson is incapable of knowing the nature of the act or of realising that the
act is wrong or contrary to law.
There are 3 kinds of person who may be said to be noncomposmentis

(not of sound mind)

(1) An idiot – an idiot is one who from birth had defective mental capacity. This
infirmity in himis perpetual without lucid intervals;
(2) One made so by illness – by illness, a person is made non compos mentis. He is,
Therefore, excused in case of criminal liability, which he acts under the influence of this
disorder;
(3) A lunatic or a madman – lunatics are those who become insane and whose incapacity
might be or was temporary or intermittent. A lunatic is afflicted by mental disorder
only at certain period and vicissitudes, having intervals of reason;

INTOXICATION
There are three kinds of abnormal person’s viz., Persons of unsound mind, persons heavily
drunken and minors. These persons do not form the rational thinking, and do not know
the nature of the acts they are doing, and do not know their affects and legal
consequences.
Chapter-IV (General Exceptions) of the Indian Penal Code, 1860 exonerates such persons
if their unsoundness of mind, inability of forming rational knowledge of the acts done by
them is proved.
Act done under the influence of heavy intoxication (not voluntarily) is a defence to the
wrong-doer. Sections 85 & 86 of Chapter-IV explain the provisions pertaining to the
wrongful acts done under the influence of intoxication.
All England Report in its Annual Review 1989 observed: “Alcoholism may constitute a
disease provided it has damaged the brain to an extent as to grossly impair the ability to
make rational judgments and emotional responses.
A killing attributable to alcoholism is one thing but a killing attributable to the taking of
alcohol is quite another and a line must be drawn between the two though it may be a fine
one in some cases.
The taking of alcohol inevitably impairs judgment and the ability to control the emotion
because of the effect it has on the brain but the transient effects of alcohol cannot be
accounted a “disease”.” Drunkenness is no excuse. However, delirium tremens (an affection
of the brain caused by alcoholicexcess) caused by drinking (not voluntarily) differs from
drunkenness in the eye of the law.
Because it produces certain degree of madness, incapacity to know the nature of the act
whether it is right or wrong. Hence under certain unavoidable circumstances, the act of
heavily drunkard person is excused from criminal responsibility.”

Sec. 85. Act of a person incapable of judgment by reason of intoxication caused against his
will: Nothing is an offence which is done by a person who, at the time of doing it, is, by
reason ofintoxication, incapable of knowing the nature of the act, or that he is doing what
is either wrong, or contrary to law:

Provided that the thing which intoxicated him was administered to him without his
knowledge oragainst his will.

Sec. 86. Offence requiring a particular intent or knowledge committed by one who is
intoxicated:

In cases where an act done is not an offence unless done with a particular knowledge or
intent, a person who does the act in a state of intoxication shall be liable to be dealt with as
if he had the same knowledge as he would have had if he had not been intoxicated, unless
the thing which intoxicated himwas administered to him without his knowledge or against
his will.

Ingredients:
The ingredients of Sections 85 and 86 are that a person will be exonerated from liability
 for an act done while in a state of intoxication, if he, at the time of doing it, by reason of
intoxication, was,—
(a) Incapable of knowing the nature of the act; or
(b) That he was not in a state of mind to know that the act was either wrong or contrary to
law; and
(c) That the thing which intoxicated him was administered to him without his
knowledge or against his will;
(d) And that voluntary drunkenness is not excuse for the commission of a crime.
Burden of proof lies upon the accused.

Basudev vs. State (1956

AIR )Brief Facts:
The accused was a retired Jamedar, attended a marriage party, in which he drank liquor
heavily. He wanted to sit in a chair, in which a boy already sat. The accused asked him to
stand so that he would sitin it.
The boy refused. The accused became annoyed, and shot the boy with his pistol. The boy
died on the spot. Thereafter, the accused walked to the police station and surrendered
him.
The accused pleaded that he was heavily intoxicated. The prosecution contended that the
defence of intoxication should not be available to the accused, because he took excess
liquor voluntarily, and also at the time of doing the act, he stood independently.

Judgment:
The trial Court held that standing, arguing and shooting at the time of incidence, and
walking to the police station himself without the help of any body, and surrendering
himself to the police show that the accused did not loose his state of mind.
He was aware what he was doing. The trial Court convicted him for the offence of murder.
The High Court and Supreme Court also confirmed the conviction.

PRIVATE DEFENCE-JUSTIFICATION AND LIMITS

WHEN PRIVATE DEFENCE EXTENDS TOCAUSING OF DEATH TO PROTECT BODY AND
PROPERTY
It is said that the law of self defence is not written but is born with us. We do not learn it or
acquire it some how but it is in our nature to defend and protect ourselves from any kind
of harm. When one is attacked by robbers, one cannot wait for law to protect oneself.
Bentham has said that fear of law can never restrain bad men as much as the fear of
individual resistance and if you take away this right then you become accomplice of all bad
men.

Section 96 - Nothing is an offence which is done in the exercise of the right of private
defence. It makes the acts, which are otherwise criminal, justifiable if they are done while
exercising the right of private defence. Normally, it is the accused who takes the plea of
self defence but the court is also bound take cognizance of the fact that the accused aced in
self defence if such evidence exists.
In Section 97 through 106, IPC defines the characteristics and scope of private defence in
various situations.

Section 97 - Every person has a right, subject to the restrictions contained in section
99, to defend – first - his own body or body of any other person against any offence
affecting the human body.
 second - the property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery, mischief,
or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal
trespass.

This allows a person to defend his or anybody else's body or property from being
unlawfully harmed. Under English law, the right to defend the person and property
against unlawful aggression was limited to the person himself or kindred relations or to
those having community of interest e.g. parent and child, husband and wife, landlord and
tenant, etc. However, this section allows this right to defend an unrelated person's body or
property as well. Thus, it is apt to call it as right to private defence instead of right to self
defence.

It is important to note that the right exists only against an act that is an offence. There is
no right to defend against something that is not an offence. For example, a policeman has
the right to handcuff a person on his belief that the person is a thief and so his act of
handcuffing is not an offence and thus the person does not have any right under this
section.
Similarly, an aggressor does not have this right. An aggressor himself is doing an offence
and even if the person being aggressed upon gets the better of the aggressor in the
exercise of his right to self defence, the aggressor cannot claim the right of self defence. As
held by SC in Mannu vs State of UP AIR 1979, when the deceased was waylaid and
attacked by the accused with dangerous weapons the question of self defence by the
accused did not arise.

The right to private defence of the body exists against any offence towards human body,
the right to private defence of the property exists only against an act that is either theft,
robbery, mischief, or criminal trespass or is an attempt to do the same.

Section-98. Right of private defense against the act of a person of unsound mind, etc.
When an act, which would otherwise be a certain offence, is not that offence, by reason of
the youth, the want of maturity of understanding, the unsoundness of mind or the
intoxication of the person doing that act, or by reason of any misconception on the part of
that person, every person has the same right of private defense against that act which he
would have if the act were that offence.
Restrictions on right to private defence
As with any right, the right to private defence is not an absolute right and is neither
unlimited. It is limited by the following restrictions imposed by section 99 –

Section 99 - There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a
public servant acting in good faith under colour of his office though that act may not be
strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under colour of his office though that
direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the
protection ofthe public authorities.

Extent to which the right may be exercised - The right of private defence in no case
extends to the inflicting of more harm that it is necessary to inflict for the purpose of
defence.

Explanation 1 - A person is not deprived of his right of private defence against an act
done or attempted to be done by a public servant, as such, unless he knows or has reason
to believe that the person doing the act is such public servant.

Explanation 2 - A person is not deprived of his right of private defence against an act
done or attempted to be done by the direction of a public servant, unless he knows or has
reason to believe that the person doing the act is acting by such direction, or unless such
person states the authority under which he acts or if he has authority in writing, unless he
produces such authority if demanded. Upon carefully examining this section, we can see
that the right to private defence is not available in the following conditions –

1. when an act is done by a public servant or upon his direction and the act
1. is done under colour of his office
2. the act does not cause the apprehension of death or grievous hurt
3. is done under good faith
4. the act is not wholly unjustified
2. when the force applied during the defence exceeds what is required to for the purpose of
defence.
3. when it is possible to approach proper authorities

In Ajodha Prasad vs State of UP 1924, the accused received information that they were
going to get attacked by some sections of the village. However, they decided that if they
separated to report this to the police they will be in more danger of being pursued and so
they waited together. Upon attack, they defended themselves and one of the attackers was
killed. It was held that they did not exceed the right of private defence.

Right to private defence of body up to causing death

Section 100 of IPC specifies six situations in which the right of private defence of body
extends even to causing death.
Section 100 - The right of private defence of the body extends under the restrictions
mentioned in section 99, to the voluntary causing of death or of any other harm to the
assailant if the offence which occasions the exercise of the right be of any of the
descriptions here in after enumerated, namely -

First - such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.
Second - such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault.
Third - An assault with the intention of committing rape.
Fourth - An assault with the intention of gratifying
unnatural lust.Fifth - As assault with the intention of
kidnapping or abducting.
 Sixth - An assault with the intention of wrongfully confining a person under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse
to the public authorities for his release.

Even though this section authorizes a person to cause death of another in certain
situation, it is also subject to the same restrictions as given in section 99. Thus, a person
cannot apply more force than necessary and must contact the authorities if there is an
opportunity.

In Viswanath vs State of UP AIR 1960, when the appellant's sister was being abducted
from her father's home even though by her husband and there was an assault on her
body by the husband, it was held that the appellant had the right of private defence of the
body of his sister to the extent of causing death.

To be able to extend this right up to causing death, the apprehension of grievous hurt
must be reasonable. In case of Sheo Persan Singh vs State of UP 1979, the driver of a
truck drove over and killed two persons sleeping on the road in the night. People ahead of
the truck stood in the middle of the road to stop the truck, however, he overran them
thereby killing some of them. He pleaded right to private defence as he was apprehensive
of the grievous hurt being caused by the people trying to stop him. SC held that although in
many cases people have dealt with the errant drivers very seriously, but that does not give
him the right of private defence to kill multiple people. The people on the road had a right
to arrest the driver and the driver had no right of private defence in running away from
the sceneof accident killing several people.

Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed

that when life is in peril the accused was not expected to weigh in golden scales what
amount of force does he need to use and summarized the law of private defence of body
as under –
1. There is no right of private defence against an act which is not in itself an offence
under this code.
2. The right commences as soon as and not before a reasonable apprehension of
danger to the body arises from an attempt or thread to commit some offence
although the offence may not have been committed and it is continuous with the
duration of the apprehension.
3. It is a defensive and not a punitive or retributive right. Thus, the right does not
extend to the inflicting of more harm than is necessary for defence.
4. The right extends to the killing of the actual or potential assailant when there is a
reasonable and imminent apprehension of the atrocious crimes enumerated in the
six clauses of section 100.
5. There must be no safe or reasonable mode of escape by retreat for the person
confronted with an impending peril to life or of grave bodily harm except by
inflicting death on the assailant.
6. The right being in essence a defensive right does not accrue and avail where there
is time to have recourse to the protection of public authorities.

Section-101. When such right extends to causing any harm other than death
If the offence be not of any of the descriptions enumerated in the last preceding section,
the right of private defense of the body does not extend to the voluntary causing of death
to the assailant, but does extend, under the restrictions mentioned in section 99, to the
voluntary causing to the assailant of any harm other than death.

Duration of the right of private defence of body

Section 102 specifies the duration of the right of private defence of the body as
follows - Section 102 - The right of private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises from an attempt or threat to
commit the offence, though the offence may not have been committed and it continues as
long as such apprehension of danger to the body continues.
The right to defend the body commences as soon as a reasonable apprehension of danger
to the body arises and it continues as long as such apprehension of danger to the body
continues.

Right to private defence of property up to causing death

Section 103 of IPC specifies four situations in which the right of private defence of
property extends even to causing death.

Section 103 - The right of private defence of property extends, under the restriction
mentioned in section 99, to the voluntary causing of death or of any other harm to the
wrong doer, if the offence, the committing of which, or attempting to commit which,
occasions the exercise of the right, be an offence of any of the descriptions hereinafter
enumerated, namely -
First – Robbery
Secondly - House breaking by night
Third - Mischief by fire committed on any building, tent, or vessel, which building tent or
vessel is usedas a human dwelling or as a place for custody
of property. Fourth - Theft, mischief or house trespass under such circumstances as
may reasonably cause apprehension that death or grievous hurt will be the consequence
if such right of private defence is not exercised.
A person may cause death in safeguarding his own property or the property of some one
else when there is a reason to apprehend than the person whose death has been cause
was about to commit one of the offences mentioned in this section or to attempt to commit
one of those offences.
Duration of the right of private defence of property
Section 105 specifies the duration of the right of private defence of the property as
follows -

Section 105 - The right of private defence of the property commences as soon as a
reasonable apprehension of danger to the property commences.
It continues - in case of theft - till the offender has effected his retreat with the
property or either the assistance of the public authorities is obtained or
the property has been recovered.in case of robbery - as long as the offender
causes or attempts to cause to any person death or hurt or wrongful restraint or as long as
the fear of instant death or of instance hurt or of instance personal restraint continues.
in case of criminal trespass - as long as the offender continues in the commision of
criminal trespass or mischief.
in case of house breaking by night - as long as the house, trespass which has been begun
by such house breaking, continues.
The case of Amjad Khan vs State AIR 1952, is important. In this case, a criminal riot
broke out in the city. A crowd of one community surrounded the shop of A, belonging to
other community. The crowd started beating the doors of A with lathis. A then fired a shot
which killed B, a member of the crowd. Here, SC held that A had the right of private
defence which extended to causing of death because the accused had reasonable ground
to apprehend that death or grievous hurt would be caused to his family if he did not
act promptly.

NECESSITY

Chapter-IV of the Indian Penal Code, 1860 contains Sections from 76 to 106. These
Sections provide the provisions for General Exceptions. The actor, if commits any of the
offences under the circumstances and exceptions mentioned in Chapter-IV, is excused
from criminal liability. Punishment shall not be imposed upon him. One of such General
Exceptions is the Doctrine of Necessity and Compulsion, which is explained in Section 81.

Introduction:
When there are two dangers causing two harms in front of a person, under unavoidable
circumstances, he is put to face them; he is excused to commit less harm.
In such circumstances, he knows what he is doing. He is compelled to do willful wrong-
doing. Law excuses him for such willful wrong-doing. If he does the same thing in the
ordinary circumstances, definitely the law punishes him. This is called the Doctrine of
Necessity and Compulsion or Jus necessitates.
This is explained in the famous maxim “Necessitas non habet legem”. It means: “Necessity
knows no laws”.

Circumstances/Examples:
(i) Self-preservation:
A and B are drowning in the sea clinging to a plank which can support only one. There
would be no mercy or love on the opposite person. Each thinks to save his own life. In such
circumstances, might is right.
The strongest person throws the weaker person and occupies the plank to save his own
life. The person who succeeds to throw another and saves his own life cannot be punished
under the penal law.
(ii) In a shipwrecked sailors are driven in the cyclone. 30 Days passed. Due to hungry and
thirsty, one or two of them died. The remaining persons kill of the co-sailor and drink the
blood and eat the flush to survive them. The law excuses them.
(iii) Fire is spreading. To stop the spreading of fire, if someone pulls down a hut or
house, he isexcused.

(iv) Right of Private Defence:

If A attacks against the person or property of B, or if A attempts to commit rape against C,
B can kill A to protect his person and property and also C can kill A to protect her chastity.
Hobbes in his Leviathan writes: “If a man by the terror of present death be compelled to
do a fact against the law, he is totally excused; because no law can oblige a man to
abandon his own preservation.”
Lord Bacon says: “Necessity is of three sorts: necessity of conservation of life; necessity of
obedience; and necessity of the act of God or a stranger.”
The Law of Jus necessitates (Necessity knows no laws) is defined and explained
in Section 81IPC, with one Explanation and two illustrations, which runs:

Sec. 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 whether the harm to be prevented or avoided was of
such a nature and so imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.

Ingredients of Section 81:

1. The circumstances shall compel wrong-doer to do such a criminal act and the wrong-
doer shall not have criminal intention.
2. The wrong-doer shall have to do that act with an intention to prevent other harm.
3. The act must be justified under the circumstances. It is a question of fact. Killing a
weak beggar, or an old woman, who enter into the house and eats food, is not justifiable
under this doctrine.
4. The wrong-doer must act in good faith.
Principle:
When, on a sudden and extreme emergency one or the other of two evils is inevitable, it is
lawful so to direct events that the smaller only shall occur, appended to Section 81 explain
this principle.

17. MISTAKE OF FACT

Sections 76 and 79 of Chapter-IV (General Exceptions) of the Indian Penal Code, 1860
explain the provisions about “Mistake of Fact” and “Mistake of Law”. These provisions are
based upon the common law maxim “Iqnorantia facti doth excusat; Ignorantia juris non
excusat.” (Ignorance of fact is an excuse, but ignorance of law is not excused.)
Mistake of fact is a good defence in criminal law, which is explained in two Sections 76 and
79. Both of these Sections are included in General Exceptions (Chapter-IV).

Meaning of Mistake:
An unconscious ignorance or forgetfulness of a fact, past or present, material to the
contract, or a belief in the present existence of a thing material to the contract, which 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 of fact:
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:
A mistake of law occurs when a person having full knowledge of facts comes to an
erroneousconclusion as to their legal effect.
Sec. 76. Act done by a person bound, or by mistake of fact believing himself bound, by law:
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact
and notby reason of a mistake of law, in good faith believes himself to be, bound by law to do
it.

Illustrations:
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the
commands ofthe 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.

Ingredients:
1. “Mistake of fact and not by reason of a mistake of law”:
This phrase in the Section means that a mistake of fact is excusable, but a mistake of law is
not excusable. It is the duty of every citizen of the land to know the law of the land, and to
behave accordingly. If a person says, “I do not know the law and due to not knowing the
law, I did the offence.” It is not excusable.
However, if a person did a wrongful act by a mistake of fact with a good faith and honest
belief that he was bound to do, he may be excused. It is presumed that everyone knows the
law of the land.

Hale writes:
“Ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon
offenders, does not excuse any, that is of the age of discretion and compos mentis, from
the penalty of the breach of it; because every person of the age of discretion-and compos
mentis is bound to know the law and presumed so to do.”
2. “Good faith”:
The words “good faith” means “the act done with due care and attention”. They also
include the genuine belief of the person. The burden of proof lies upon the person who
wants to take the shelter of good faith.
3. “In good faith believes him to be bound by law”:
This phrase means that the accused should be in good faith and he must be under
confidence that he was bound by law to do that act.
This Section is mainly intended to safeguard the subordinates, who are compelled to
follow the superior’s orders, illustrations (a) and (b) appended to Section 76 also reveal
the same. This Section does not give protection to those people who act against the law,
i.e., mistake of law.

State of West Bengal vs. Shiv Mangal Singh (1981

CrLJ 1683)Brief Facts:
While the police were patrolling in the outskirts of the town in the night, some armed
people attacked them, and an Assistant Commissioner of Police was badly injured.
The Deputy Commissioner of Police ordered firing against the unknown persons. Two
persons were died. The Court held that the police were protected under Section 76, being
they were bound to protect law and order.
It does not mean that every superior officer’s firing order is protected by Sec. 76 or 79.
The order mustbe given in good faith, and to protect the peace, law and order.
The subordinate officers should feel that the order given is given in good faith. Torturing
the innocent persons, under trial prisoners, lock-up deaths, etc., is not protected under
Sec. 76.
Recently a police tour went into forest nearby Adilabad District searching Naxalites. It was
alleged that the superior officer of searching party ordered the police constable to squeeze
the milk from a Tribal woman to know whereabouts of the Naxalites. It was criticized by
the Press and Assembly. This kind ofsuperior orders is not protected under Sec. 76.
Section 76 IPC is also applicable to private persons, who help the police or other officers.
Sec. 42 of Cr.P.C. empowers the private persons to arrest a person suspected to have
committed non-bailable offence, and to apprehend such person and to handover him to
the nearest police station.

Sec. 79. Act done by a person justified or by mistake of fact believing himself justified by
law: Nothing is an offence which is done by any person who is justified by law, or who by
reason of amistake of fact and not by reason of a mistake of law in good faith, believes him to
be justified by law,in doing it.

Illustration:
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 fact, 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.
Distinction between Ss. 76 and 79: There is a slight difference between these two Sections.
In Section 76, the person is bound by law; whereas in Section 79, the person is justified by
law Under Sec. 76, the person is bound by a legal obligation, whereas under Sec. 79, the
person is supposed to have legal justification. Both the Sections require good faith

State of Orissa vs. Khora Ghasi

(1978) Brief Facts:
The accused-an agriculturist was guarding his maize field lying on a Manche (specially
constructed in the agricultural fields). He observed that one animal was moving in his
field. He cried. Inspite of his crying, he observed that some animal was moving in the field
and coming towards him.
He fired his gun. In fact, it was not an animal, but a person, who was hiding there. The
Court held that the accused was protected under Sec. 79 and also 80 (Accident).

Exemption to the Judges and Judicial Officers

There is a separate statute “the Judicial Officers Protection Act, 1850″ giving protection to
the judicial officers while they are acting judicially. Besides this Act, Section 77 IPC
provides exemption to the Judges from criminal process and Section 78 IPC provides
exemptions to the persons whose act is in pursuance to the judgment or order of the
Court. These two Sections run:—

Sec. 77. Act of Judge when acting judicially:

Nothing is an offence which is done by a Judge when acting judicially in the exercise of
any power which is, or which in good faith he believes to be, given to him by law.
Sec. 78. Act done pursuant to the judgment or order of Court:
Nothing which is done in pursuance of, or which is warranted by the judgment or order of,
a Court of Justice, if done whilst such judgment or order remains in force, is an
offence, notwithstanding theCourt may have had no jurisdiction to pass such judgment or
order, provided the person doing the act in good faith believes that the Court had such
jurisdiction.