Introduction –
Criminal Law was enforced to prevent the increase in the number of crimes being committed in society. It was brought into enforcement to maintain public order and well being. Criminal law makes people liable for the offences they have committed and further punishes them as prescribed in the Indian Penal Code, 1860. Although IPC lays down provision to punish the offenders there are some general exceptions to criminal liability as enshrined in Chapter IV of it. These certain defences are envisaged in Section 76 to 106 of Indian Penal Code, 1860. These defences are generally awarded because of the absence of intention to do the crime.
The mistake of Fact (Section 76 and 79) –
The mistake of fact refers to the idea that the accused misunderstood some facts that eliminate the essence of the crime. The mistake committed must appear to be reasonable and honest to the judge. Section 76 of the IPC reads as –
“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 because of a mistake of fact and not because of mistake of law in good faith and not because of a mistake of law in good faith believes himself to be, bound by law to do it.”[1] To claim the defence of mistake of fact, the person must fulfil the following conditions –
- The accused was obligated under the law to perform the act.
- The accused should be under the belief that he is obligated under the law to perform the act.
- The belief should be under a mistake of fact not under a mistake of law.
- The accused should perform the act under good faith.
In The State of Maharashtra v. Mayer Hans George[2]case, the court ordered an officer to arrest the person. The officer arrests another person presuming him to be the same person who was supposed to be arrested. The court held that the officer can take the ground of bona fide intention as a defence in the mistake of fact.
Accident –
Under this defence, the person can exempt himself from criminal liability as the act of the crime was accidental. In this defence, intention plays an integral role as the act should be mere because of the accident and not intentionally. Law spares the acts of a person over which he has no control. The accident should be unpredictable by a prudent man. Section 80 of the Indian Penal Code reads as –
“Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.”[3]
In-State of Orissa v. Khora Ghasi[4] case, the accused person killed another person by shooting an arrow to kill a wild board which entered his field to destroy the crops. The court held that the killing of a person was a mere accident.
Necessity –
When the offender commits a crime to prevent greater harm then he can claim the defence of necessity. The defence of necessity is applied in a situation of danger. These acts should be done with bona fide intention and in good faith. To claim the defence, the act must satisfy the following provisions:
- There should be prior knowledge that the act is likely to cause harm.
- There should be no criminal intent behind the act.
- The act should be done with bona fide intention.
In R v. Dudley and Stephen[5]case, where then seamen were held liable for murder because they murdered to preserve their own life.
Infancy –
Section 82 of IPC lays the provision that if a crime is committed by a child less than seven years of age then he could not be held liable. This provision is based on the maxim of doli incapax. The criminal liability of a child below the age of seven is exempted. Section 83 of the IPC further protects children between the ages of seven to twelve years of age from criminal liability. The only exception to this rule is that the accused should not have reached maturity to identify the outcome of his action.
In Krishna Bhagwan v. State of Bihar[6] case, the accused stole a necklace and immediately sold it. The court held that the child was mature enough to understand the repercussions of his action and therefore he was held liable.
Insanity –
This provision of IPC exempted a person of unsound mind from criminal liability. Section 84 of the Indian Penal Code, 1860 says that if the accused at the time of the commission of the offence was in a position of unsound mind and was unable to understand the repercussion of his action then he cannot be held liable.
In Frendak v. U.S. [7]case, the accused set fire to the apartment where he used to live with his mother. Minutes before the accident people saw him arguing with his mother. The court held that a trial court has the discretion to interpose an insanity defence over a defendant’s objection only if the court is convinced, after proper enquiry, that the defendant has not made, and cannot make, such a voluntary and intelligent decision.
Intoxication –
Under this defence, if the accused was in the state of intoxication then his liability could be discharged. This intoxication should be involuntary and without the knowledge of the accused. To claim the defence following essentials should be met:
- The accused should be incapable of knowing the nature of the offence.
- The act was a result of intoxication.
- The intoxication was against the knowledge of the accused.
Consent –
Consent refers to the voluntary act on an individual. The offender can claim the defence of consent if the victim himself volunteered for the crime and with the prior knowledge of the crime. To claim the defence of consent following criteria should be met:
- The person should have voluntarily consented to the risk. ‘
- The person who gave the consent must be above 12 years of age.
- There should be no threat to life.
- The consent should be expressed or implied.
- There should be no misconception of facts or fear.
In Baboolun Hijrah v. Emp. (1886) case, a man submitted himself to emasculation. Due to improper care and negligence, the person died. The accused held that the deceased person himself consented for the emasculation on which he was held not guilty.
Communication –
Under this provision of IPC, any communication made with a bona fide intention and in good faith is not an offence if it is made for the benefit of that person. There should be no criminal intention behind such communication. This provision protects professionals from the effect of their communication may lead to. The only necessity is that the communication should be in good faith. Section 93 of IPC reads as –
“No communication made in good faith is an offence because of any harm to the person to whom it is made if it is made for the benefit of that person.[8]”
Trifles –
The following defence is based on the maxim “de minimis no curate lex” which means the law does not take notice of small and petty issues. Trifles mean trivial and petty issues. This is done to maintain public order so that the courts don’t get overburdened with trivial cases. Section 95 of the Indian Penal Code reads as –
“Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm if that harm is so slight that no person of ordinary sense and temper would complain of such harm.”[9]
Duress –
Duress refers to the act of an accused which he is compelled to do. Except for murder and offences against the state punishable with date nothing stands as an offence. To clan the defence under Section 94 of the Indian Penal Code, 1860 following essentials need to be met –
- There needs to be a compulsion for the commission of the offence.
- There should be an immediate threat to perform the act.
- It should be caused by reasonable apprehension.
- This should be exclusive of murder and offences which are punishable by death.
Private Defense –
Under certain circumstances, the law permits the use of reasonable force to protect oneself. This provision is available for self-protection or the protection of another in the situation of imminent danger. Private defence in envisages from Section 96 to Section 106 of the Indian Penal Code, 1860. Section 96 is qualified and not absolute. The force used should be proportional to the danger present.
In Chotelal vs State case, B was constructing a structure on land subjected to a dispute between A and B. A was trying to demolish the same. B, therefore, assaulted A. it was held that A was responsible for the crime of waste and B has, therefore, a right to defend his property[10].
Sources:
[1] https://indiankanoon. Org/doc/202169/
[2] The State of Maharashtra v. Mayer Hans George 1965 AIR 722, 1965 SCR (1) 123
[3] https://indiankanoon .org/doc/202169/
[4] State of Orissa v. Khora Ghasi (1978) Cri LJ1305
[5] R v. Dudley and Stephen 14 Q.B.D 1884
[6] Krishna Bhagwan v. State of Bihar 1991 1BLJR
[7] Frendak v. U.S. 408 A.2d 364 (1979)
[8] Section 93 Universal’s The Indian Penal Code, 1860 Bare Act (2020)
[9] Section 95 Universal’s The Indian Penal Code, 1860 Bare Act (2020)
[10] https://www.legalserviceindia.com/article/1470-Private-Defence.html
This blog is written by Jaya Singh, Amity University.
Some of her blogs-
- MISCHIEF under Indian Penal Code
- Offences Relating To Election under IPC
- Bigamy and Cohabitation
- Unlawful Assembly & Rioting with Affray
- The doctrine of Double Jeopardy
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