Q. 5 (a). Explain the various kinds of punishment. When may a sentence of death be passed ?
Ans. There are following kinds of punishments known in law-
(1) Death punishment
(2) Mutilation of limbs.
(3) Transportation for life.
(4) Imprisonment for life.
(5) Rigorous imprisonment.
(6) Simple imprisonment.
(7) Whipping
(8) Fine
(9) Forfeiture of property.
Under the provisions of L.P.C., “Transportation for life” was substituted for imprisonment for life’ by Act XXVI of 1955. Imprisonment for life is by always rigorous, never simple [Nanavati v. State, AIR 1962 SC 605]. In Kartar Singh v. State, AIR 1982 SC 1438, the Supreme Court said that since the span of life is uncertain, imprisonment for life is not an imprisonment for a fixed term. In Bhagirath v. Delhi Administration, (1985) 2 SCC 580, the Supreme Court laid down that imprisonment for life is a sentence for the term of one’s life. Transportation for life is only a matter of history in India. Mutilation of limbs also does not exist in India. It was resorted to punish the criminals during Mughal period ‘Whipping’ is also not a punishment prescribed under the provisions of L.P.C. Other six forms of punishments are prescribed in Indian Penal Code. Under Section 357(1) of Cr. P.C., the Court can award compensation to the victim of crime, the amount of which cannot exceed the amount of fine which the Court can impose’ as a part of the sentence on the offender in a particular case. Under Section 357 (3) of Cr. P.C., the compensation can be awarded where sentence of fine is not imposed by the Court.
It is to be noted that the power to award compensation under this provision is not ancillary to other sentences but it is in addition thereto. Sarwan Singh v. State of Punjab, AIR 1978 SC 1525 Harkishan & State of Haryana v. Sukhbir Singh, AIR 1988 SC 2131]
The quantum of compensation ordered by the Court should be reasonable. The court should take into consideration the financial capacity of the accused, enormity of the offence, extent of damage caused to the victim etc. while making an order for payment of compensation. [Sebastian v. State of Kerala, 1992 Cri. L.J. 3642 (Ker.)]
A sentence of death may be passed under the provisions of Indian Penal Code in following offences.- Waging war against the Government of India (Section 121), Mutiny and its abetment (Section 132), Giving or fabricating false evidence upon which an innocent person suffers death (Section 194), Punishment for Murder (Section 302).
The only punishment prescribed is death but the Supreme Court declared this provision unconstitutional in Mithu v. State of Punjab, AIR 1976 SC 133 and held that all the cases of murder would fall under Section 302 of L.P.C. Punishment for Murder by a life-convict (Section 303); Abetment of a suicide of child or insane or an intoxicated person (Section 305); Attempt to murder under sentence of imprisonment if hurt is caused in such attempt (Section 307); Kidnapping for ransom (Section 364-A), Punishment for causing death or resulting in persistent vegetative state of victim (Section 376-A); Punishment for repeat offenders for committing the offences under Section 376 or Section 376-A or Section 376-AB or Section 376-D or Section 376-DA or Section 376-DB (Section 376-E) and Daçõity accompanied with murder (Section 396).
Death punishment in exceptional cases only. Prior to the amendment of Section 367 (5) of the Code of Criminal Procedure, 1898 in 1955, where death penalty or life imprisonment as an alternative punishment could be awarded by the Court the Court had to give special reasons for awarding life-imprisonment or term of imprisonment. In other words, life imprisonment could be given only in exceptional cases cases and death sentences was the rule but after the amendment of the provision in 1955, the Court was required to give special reasons for award of death sentence. Thus, from 1955, onwards, the life imprisonment became a rule and death sentence an exception. Section 354 (3) of the Code of Criminal Procedure, 1973 also provides that in case of death sentence, the special reasons shall be given by the Court while awarding the sentence. Thus, under the present Code of Criminal Procedure, 1973, the life imprisonment is the rule and death sentence is an exception.
In Machhi Singh v. State of Punjab, 1983 Cr. LJ 1457 (SC), the Supreme Court gave some illustrations of cases for awarding death sentence. These are as follows:
(1) Committing of murder in an extremely brutal, grotesque, diabolical, revolting or or dastardly manner which arouses intense and extreme indignation of the community eg.-(i) setting aflame the house of the victim to roast him alive in the house, (ii) inhuman acts of torture or cruelty to the victim to bring about his or her death, (iii) cutting the body of the victim into pieces or dismembering it in a fiendish manner, (iv) committing murder in a total deprave and mean manner e.g. murder to inherit property.
(2) Murder by hired assassins for money or reward, murder in the course of betrayal of the motherland.
(3) Murder of a Scheduled Caste or a member of minority community to create terror, bride burning, multiple murders of all or almost all the members of a family or murder of large number of persons or community.
(4) Murder of innocent or helpless woman or other helpless person by old age or infirmity.
(5) Victim being a public figure loved and respected by the community for services rendered by him and murder committed for political or similar reasons.
In Bachan Singh v. State of Punjab, 1980 Cr LJ 636 (SC), the Supreme Court while upholding the validity of death sentence expressed the opinion that a real and abiding concern for the dignity of human life postulates resistance to taking a life through instrumentality of law. That ought not to be done save in the rarest of rare cases when the alternative opinion is unquestionably foreclosed.
In Gurumukh Singh v. State of Haryana, (2010) 1 Cri LJ 450 (SC), the Supreme Court held the bounden obligation and duty of the Court to impose proper and appropriate sentence on the accused. The Court must endeavour to ensure that accused receives appropriate sentence. In other words, sentence would be according to gravity of offence
Q. 5 (b). Explain the maxim, “Ignorantia facti excusat; ignorantia juris non-excusat.”
Or
“A mistake of fact is a good defence but a mistake of law is not.” Discuss.
Ans. Mistake of Fact and Mistake of Law. The expression mistake of fact means that there is a misconception in the mind about the existence of a fact. If truth or otherise of a fact is not known correctly, it is a mistake of fact. ‘Mistake of mind’, on the other hand, is a mistake as to the existence or otherwise of a law and includes a mistake as to what the law is. There is a well-known maxim “ignorantia facti excusat, ignorantia juris non- excusat. It is literally translated as follows: “Ignorance of facts is excused but the ignorance of law is not excused.” It means, in other words, that a mistake of fact is a good defence but a mistake of law is not. Ignorance of law is indeed no excuse for defence. If it were so, it would be difficult to administer the law. A man may not know the law at his own peril. Law takes no notice of such ignorance. All legislation is published in a prescribed manner and, when so published it does not require to be proved that every citizen in the land knows it. There is an absolute duty upon all persons to know the law of the land to obey it. The consequences for a breach of the law are same whether one knew it or not. There is no escape from the law in not knowing it. The above principle of the law is embodied in the exceptions enacted in Section 76, LP.C
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 not by reason of a mistake of law in good faith believes himself, to be bound by law to do it. [Section 76].
Section 76 contains two principles one of law and the other of fact. It states at the outset that nothing is an offence which is done by a person who is bound by law to do it. This is the principle of law. It is supported by a corollary. The corollary is that nothing is an offence which is done by a person who (i) by reason of a mistake of fact, (ii) not by reason of mistake of law, (iii) in good faith, (iv) believes that he is bound by law to do that thing The essence of the corollary is in bona fide belief induced by mistake of fact in spite of due care and caution. This is the principle of fact. There is no excuse for mistake of law. One may not plead in defence to a charge that one did the act in question under belief that the law was different from what it actually is but it may very well be pleaded in defence that the act was done in the belief that there was a duty to do it under the law as it is and that such belief was induced by a wrong knowledge of facts and circumstances. If true facts were known, the person doing the act in question would have seen that there was no legal duty upon him to do it, the mistake, in other words, consists not in the knowledge of the law but in knowledge of facts to which such law is applied. In short, it is the mistaken application, not the mistaken knowledge of the law which is excused in the circumstances stated above.
Illustrations.(a) A, a soldier fires on a mob by the order of his superior officer in conformity with the commands of the 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.
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 a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it [Section 79]
Illustration. (c) 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.
Sections 76 and 79 apply the same principles to two distinct spheres- one is of duty or legal obligation, the other is of propriety or legal justification. In one, a person feels on account of mistake of fact that there is no choice for him as under the law, but to do the act, in the other he feels, on account of the said mistake, that there is a choice for him as to how he should act and he acts in the manner under the belief that his act would be justified under the law.
These two exceptions go to show that although a mistake of fact may sometimes absolve a man, mistake of law never absolves. Ignorance of law is no defence but ignorance of fact may be a good defence. If the facts, as mistaken, constitute an offence, a plea of mistake, or ignorance of facts shall be of no avail. Thus, where the master of a ship shot down minor of another ship in a quarrel on the high seas without knowledge that such shooting down had become an offence 48 days before, he was held guilty although on a reference to the larger Bench, it was opined that he should be pardoned. Richard Bailey case, (1880) R & R 1]
In a moment of delusion the accused thought his only son to be a tiger. He attacked him with an axe under a mistake of fact in good faith under the impression that he was justified by law to do so against a dangerous animal This section was held to be applicable. [Chirangi v. State, AIR 1952 Nag. 282]
Q. 5 (c). “Nothing is an offence which is done by any person who is, or who by reson of mistake of fact and not by reason of mistake of law in good faith believes himself to be, bound by law, to do it.” (Section 76, IPC), and
“Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.” (Section 79, I.P.C.). Comment and explain the above.
Ans. Sections 76 and 79 apply to mistake of fact and not to mistake of law. These sections are a paraphrase of the English Common Law maxim in its application to criminal law ‘Ignorantia facti excusat, ignorantia juris non excusat (Ignorance of fact excuses, ignorance of law does not excuse). The distinction between these two sections is that in the former, a person by mistake of fact and not by mistake of law assume himself to be bound, and in the latter, a person assumes himself to be justified by law to do an act, under both the sections there must be a bona fide intention to advance the law, manifested by the circumstances attending the act which is the subject of charge.
Under Sections 76 and 79, mistake must be one of fact and not of law. Mistake has a recognised place in civil law and as such it is a well-known concept Mistake is used in the sense of misconception or error of judgment not intended to produce the result attained. Such a mistake may or may not, be due to forgetfulness, ignorance, imperfact information or faulty ratiocination It may be due to chance, negligence, stupidity or even superstition but it must not be due to design, prearrangement nent or pre-concert. A mistake may be due to the imperfection of senses, or it may be due to the deficiency of intellect.
At common law, an honest and reasonable belief is the existence of a facts, which, if true, would make the act for which the prisoner is indicated, an innocent act and has always been held a good defence. Honest and reasonable mistake of fact stands on the same footing as absence of the reasoning faculty as in infancy, or perversion of that as in faculty lunacy. In respect of every offence, a state of mind is necessary in common law in committing an act, and if this state of mind is absent for any reason as by a mistake of fact, then the act done is not an offence.
In R. v. Prince, (1875) LR 2 CCR 154, the accused was charged of unlawfully taking an unmarried girl under the age of 16 years out of possession and against the will of her father. It was found that the accused bona fide and reasonably believed the girl to be older than 16 years. The accused’s mistaken belief about the age of the girl was held not to be a good defence because his act was not innocent in itself.
In R. v. Tolson, (1889) 23 QBD 168, the accused was charged with the offence of bigamy. She had married second time within seven years believing in good faith and on reasonable grounds that her husband was dead. It was held that at the time of her second marriage she in good faith believed her first husband to be dead and, therefore, defence of mistake of fact was allowed by the court.
In Sheras v. De Rutzen, (1895) 1 QB 918, a statute prohibited a licensed dealer of liquor from supplying liquor to a police constable while on duty and dealer supplied liquor to a constable on a bona fide belief that he was off duty. He was held to have committed no offence.
It may be laid down, as a general rule, that a person acts under a mistake of fact if he in good-faith believes reasonable grounds to exist at the time of doing of the act. Ignorance of fact is excusable because it many a times makes the act itself involuntary. Where a person thrusts the sword at a place whereupon reasonable grounds, he supposed a burgler to be, and killed a person who was not burgler, he was held to have committed no offence (Levet’s case, 1 Hale, 474).
It is to be noted that the mistake of fact must have been arrived at in good faith. Good faith will not avoid the accused person if it is a case of voluntary and negligent ignorance of fact in doing of the act. When an act is done either rashly or negligently, the act cannot be said to be done in good faith.
Mistake of law ordinarily means mistake as to existence or otherwise of any law on a relevant subject as well as mistake as to what the law is. The term ‘law’ as used in this reference means the general law of the land which includes bye-laws, rules and regulations having the force of law. Mistake of law in a criminal case is no defence.
The maxim Ignorantia juris non excusat in its application to criminal offence, admits of no exception. Ignorance of law is no excuse either in the case of a native or that of a foreigner, although it may be a ground for mitigation of sentence. This rule is founded on sound policy, e.g., effective administration of justice. It is well-settled that ignorance of law will not excuse any person who has a capacity to understand the law. Mistake of law, however, normally relates to mistake as to accused’s right under the law to do a particular act or pursue a particular course of conduct. The courts are not at all concerned with the legality or otherwise, of the right under which the accused purported to act.
The question as to whether the accused believed in good faith on account of mistake of fact that he was ‘bound by law’ to do the act which is alleged to constitute an offence would arise only where the order of the superior officer is not justified or is illegal. If the order is justified no such question would arise and such a defence may be successfully taken [State of West Bengal v. Shew Mangal Singh, AIR 1981 SC 1917].
An act is ‘justified by law’ if it is warranted, validated and made blameless by law’. For example, once a certificate sanctioning public exhibition tion of a film has been granted by the competent authority under the Cinematograph Act, there is a justification for its display thereafter and it can be an effective defence to prosecution under Section 292, L.P.C. [Raj Kapoor v. Laxman, AIR 1980 SC 605].
In Kesho Sahu v. Saligram Shah, 1977 Cr LJ 1725 (Orissa), the accused had helped a policeman to stop the buffalo cart of the complainant on the suspicion that rice was being smuggled in the cart. It was held that the policeman had the power to stop the cart on suspicion and help rendered to him in good faith is justified under Section 79 of IPC and the defence would be available under this section.
In State of Orissa v. Khora Ghasi, 1978 Cri. L.J. 1305 (Ori), the accused who was guarding his maize-field at night saw a moving object in the field. Believing it to be a bear he shot an arrow on the object. It was discovered later that the arrow had killed the deceased who had entered into the field with the object of stealing the maize. It was held that the arrow was shot under a bona fide belief in good faith that the moving object was bear and consequently, the accused was protected under Sections 79 and 80 of the LP.C.
Q. 5 (d). A, an officer of a Magistrate’s Court, is ordered by the Magistrate to arrest B under a warrant and after due enquiry A arrests C believing him to be B. Can A be prosecuted for any offence? Give reasons.
Ans. A cannot be prosecuted as he has committed no offence. A, an officer of the Magistrate’s Court has acted in pursuance of an order of Magistrate. He is bound by law to carry on the order. A after making due enquiry arrests C believing him to be B. Since he has acted in good faith under mistake of fact, he can successfully take the defence provided by Section 76.
The mistake has been committed due to misconception or error of judgment. Moreover, he has no intention to arrest C, and, therefore, there is no element of mens rea to constitute wrongful confinement.
Q. 6 (a). Discuss how an act which is otherwise an offence may, not be so and excused on account of accident or misfortune.
Ans. Accident in doing a lawful act. Section 80, I.P.C., enacts that nothing is an offence: (i) which is done by accident or misfortune; (ii) without any criminal intention or knowledge; (iii) in the doing of a lawful act; (iv) in a lawful manner; (v) by lawful means; and (vi) with proper care and attention.
To succeed under Section 80 of the L.P.C., the following essential elements of the defence must be proved-
(i) Something is done by mistake or misfortune;
(ii) there is absence of criminal intention or knowledge;
(iii) the act must be a lawful act;
(iv) it must be done in a lawful manner;
(v) it must be done by lawful means;
(vi) it must be done with proper care and caution.
Illustration. (i) A is at work with a hatchet; the head of hatchet flies off and kills a person who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and is not an offence. (Illustration appended to Section 80)
(ii) To take another illistration, two men, accused and deceased, went into a jungle, hunting, porcupines. They agreed to take up certain position in the jungle and lie in wait for game which was done. After a while the accused believing it to be a porcupine, fired in that direction. The shot, however, reached his companion and caused his death. It was held that the accused was protected by this section, the affair being a pure accident.
Accidents may be classified into two groups: (i) Misfortunes or acts which are involuntary, (ii) involuntary results of voluntary acts. A man stumbles forward to save himself from falling and in so doing clutches another man who falls down a precipice on being so clutched and ‘dies. The act of clutching is voluntary, but its result is involuntary.
To invoke the exception under Section 80, there should be absence of both criminal intention as well as criminal knowledge. No act is per se criminal unless the doer did it with criminal intent. As the object of law is to punish only serious infractions of the rules of the society, it cannot punish a man for his mistake or misfortune. If people in following their common occupation use due caution to prevent danger, and nevertheless happen unfortunately to kill anyone, such killing is homicide by misadventure. Thus where a person driving a car, happens to drive over another vehicle and kills a person, if the accident happens in such a manner that no want of due care could be imputed to the driver, it will be accidental death and the driver will be excused.
In State v. Rangaswamy, AIR 1952 Nag 268, where two men A and B went to jungle to shoot hyena, and they took their positions and laid waits for the game. After a while some rustle was heard and ‘A’ believing it to be hyena, fired in that direction. The shot caused by B’s death. A was held to be protected under this section and his acquittal under Section 304-A, I.P.C. was held to be correct.
Accident is not of itself a defence to civil suit unless it was not only an accident but also a misfortune. The word, “accident” in the section does not mean mere chance. It rather means an unintentional and a unexpected act.
But, where the act is not lawful, plea of accident cannot protect the accused from liability. As in cases of
(i) A shoots at a bird in B’s house in order to steal it and thereby kills B. The act of A is not lawful as he intended to commit theft and hence not protected for shooting under Section 80.
(ii) A and B are fighting. C intervenes to separate them but A stabs, C by a spear in his hand. A’s act in stabbing C is illegal. It is not a lawful act.
In Jageshwar v. Emperor, AIR 1924 Oudh 228: 24 Cr LJ 789, the accused was beating a person with his fists, when the latter’s wife with a two months child on her shoulder interfered, the accused hit the woman but the blow struck the child on his head and the baby died. It was held that although the child was hit by accident, the accused was not doing a lawful act in a lawful manner by lawful means. Therefore, the defence under Section 80, IPC could not be availed of by him.
Q. 6 (b). Whether an act done for prevention of harm to person or property is an offence, or not under Indian Penal Code. Explain fully with suitable examples.
Ans. Act likely to cause harm, but done without criminal intent, and to prevent other harm-According to Section 81 of I.P.C.-“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.
Illustrations. (a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with 20 or 30 passengers on board, unless he changes the course of his vessel, and by changing the course of vessel, he must incur the risk of running down a boat C with only two passengers on board which he may possibly clear. Here, if A alters his course without any intention to run down the boat C, and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C.
(b) A in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act; A is not guilty of the offence.
In R. v. Stratton, [(1779) 2 Hansi Tri. 1223), Lord Mansfield observed: “Whenever necessity forces a man to do an illegal act, forces him to do it, justifies him because no man can be guilty of a crime without the will and intention of the mind.”
Mayne observed in Criminal Law of India [4th Edn. Page 157] that “Section 81 is intended to give a legislative sanction to the principle that where on a sudden and extreme emergency one of the two evils isinevitable it is lawful so to do even that the smaller only shall occur.”
In R. v. Dudley & Stephen, (1884) 14 QBD 273, the case is famous as Mignonette case. The facts of the case were that Dudley, Stephen, Brooks and a boy Parker of 18 year’s age were lost in a sea-storm about 1600 miles away from the Cape of Good Hope. They were compelled to sit in an open boat of the ship Yacht Mignonette. Dudley, Stephen and Brooks were quite healthy- men. They had no supply of food and water but on fourth dau they caught a turtle and subsisted upon it for eight days. For the next eight days they had nothing to eat. They could have only the water collected by them from time to time in their Oil-Skin Caps. The boat was drifting in the open-sea about one thousand miles away from the earth. On the eighteenth day, Dudley suggested to Brooks that some one should be sacrificed to save the rest. But Brooks did not agree. Thereafter, he suggested that the lots should be drawn as to who should be sacrificed but Brooks never consented. Then, Dudley with consent of Stephen went to the boy Parker who was lying helpless, weakened by famine and drinking sea water, unable to make any resistance, and told him that his time had come. He then put a knief on the throat of the boy. Before doing this ghasty act Dudley had offered payer that he should be forgiven in case he was tempted to commit such a rash act. The three men fed upon the body and blood of the boy when they were picked up by a passing vessel. Although they were recused alive yet they were in the lowest state of prostration. They were prosecuted for committing murder. It was found that if the men had not fed upon the body of boy, they would probably have died of starvation. The boy being in a much weaker condition, would have died earlier in case not being slain. however, there was no greater necessity of killing the boy than any of the other three men.
The Divisional Court, through Lord Coleridge C.J., with the concurrence of other four Judges found them guilty of murder. It was held that upon the facts stated above there was no proof of any such necessity as could justify the killing of the boy.
To the argument, that in order to save your life you can take away the life of another when there is no threat or attempt on your life by him, it was said that there was no authority which could support it. It was held that upon the facts there was no proof of any necessity as could justify the killing of the boy therefore accused were found guilty of murder and felony.
The Court after discussing at length various issues involved in the question of conservation of man’s own life in extreme cases of hardships laid down following principles, viz:
(1) Self-preservation is not an absolute necessity.
(2) No man has a right to take others life to preserve his own life, unless it is in self-defence.
(3) There is no necessity that justifies private homicide i.e. to conserve one’s own life.
The Supreme Court has opined in Veeda Menezes v. Yusuf Khan, AIR 1966 SC 1773, that word harm used in Section 81 and in Sections 87, 88, 89, 91, 92, 93, 95, 100, 104 and 106 of the I.P.C. can only mean physical injury.
Q. 7 (a). Discuss the law relating to defence on ground of minority or infancy.
Ans. Act of a child under seven years of age-Nothing is an offence which is done by a child under seven years of age. (Section 82).
Act of a child above seven and under 12 of immature understanding.- Nothing is an offence which is done by a child above 7 years of age and under 12 years, who has not attained sufficient maturity of understanding of the nature and consequences of his conduct on that to judge occasion. (Section 83)
A child can commit no wrong (i) if he is below 7 years of age as he is at such age presumed to be not endowed with a sufficient maturity of understanding to be able to distinguish right from wrong, or (ii) if he is above 7 years and below 12 years; but too weak in intellect to judge what is right or wrong.
Illustrations. (i) A child of 9 years of age took a necklace valued at Rs. 281/- from another boy and immediately sold it to another for Rs. 50/-. The child was discharged under this section, but the accused was convicted of receiving stolen property for, the Court considered his conduct, displaying sufficient intelligence to hold him guilty.
(ii) The accused, a girl of 10 years of age, a servant of the complainant, picked up his button worth eight annas and gave it to her mother. She was convicted of receiving stolen property and sentenced to a month’s imprisonment. But the High Court quashed the conviction holding that there was no finding by the Magistrate that the accused had attained maturity of understanding sufficient to judge the nature of the act.
In Mst. Aimona, 1 WR 43, a girl about 10 years of age was abused by her husband and father-in-law. The husband also attempted to strike her. Ten days after this accident, the girl by a dao, cut the throat of her husband when he lay asleep. The Court found her guilty of murder which was based on the demeanour in the Court, her presence of mind and her concealment after the act.
Q. 7 (b). Discuss the insanity as a defence to crime.
Or
To what extent is unsoundness of mind accepted as a defence to criminal liability under I.P.C.?
Ans. Act of a person of unsound mind- It is a principle of criminal law that the person doing an act and thus being guilty for that act should have a sufficient degree of understanding to form the intention for the act. If the person doing the act, was lacking such degree of understanding, he can be excused because of insanity.
Section 84 of I.P.C. runs as follows-
“Nothing is an offence which is 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”.
It is necessary for the application of Section 84 to show (1) That the accused was of unsound mind; (2) That he was of unsound mind at the time he did the act and not merely before or after the act; and (3) that as a result of unsoundness of mind he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law.
In Reg v. McNaughten, (1843) 10 CI & F 200. Daniel Mc Naughten under an insane delusion that Sir Robert Peel the then Prime Minister of England, had injured him and was going to inflict injuries again on him, shot and killed Drummond, the Private Secretary of the Prime Minister under the mistaken belief that he was Sir Robert Peel. The jury acquitted the accused on the ground of insanity and laid down following rules-
(1) Every man is presumed to be sane and to have sufficient degree of understanding and reason so as to know the nature of his act until the contrary is proved.
(2) To establish the defence of insanity, it must be clearly proved that the accused was labouring under such a defect of reason due to mental disease so as not to know the nature and quality of the act or that what he was doing was wrong.
(3) If the accused at the time of committing the act was concious that he should not do it and the same act was contrary to the law making it an offence, the accused would be punishable.
(4) There can be no medical evidence of the accused that he might have been insane while committing the act if the accused was not seen by the medical man before the trial.
(5) When a crime is committed by a man under insane delusion as to the surrounding facts he would be responsible to the same degree if the facts had been the same as imagined by him.
The Indian law of insanity is based on the Rules (1) and (2) as laid down in the following cases:
In State of M.P. v. Ahmadullah, AIR 1961 SC 948, it was held that the crucial point of time at which epileptic insanity should exist is the time of the commission of the act.
In Ujagar Singh v. State, 1954 Pepsu 5, the accused had developed a violent nature due to insanity. He was kept in chains. He, often did not take his food and gave it to crows and dogs. He used to assault his family members. One day, when not chained, he speared his uncle to death who had a lot of love and affection for him. After stabbing the uncle, he did not run away from the place of occurrence. It was held that the accused did the act without knowing the nature of the act or that the act was contrary to law.
In Indian law, irresistible pulse is not a good defence. The abnormality may be due to prime mood or high eccentricity which indicates the unsoundness of mind.
In Umar Khan, (1931) 32 PLR 804, it was held that a person could not be said to be insane where all that was established was that he was moody, irritable, short tempered and conceited and could be said to have been peculiar but at no time did he suffer from insanity of such nature or degree as to preclude him from knowing the nature of his act or to obscure the distinction between right and wrong.
In Ratan Lal v. State, 1971 SCC (Cri) 139, the accused used to set fire to his own clothes and house. It was held that his act could not be held merely as irrational acts but must be held more likely to be verging on insanity.
In Shrikant Anandrao v. State of Maharashtra, 2002 Cri LJ 4356 (SC), the accused, a police constable, was alleged to have killed his wife by hitting her with a grinding stone. His family history was that his father was suffering from psychiatric disease while the cause of the appellant’s ailment was not known but thought to be heredity. The accused was being treated for paranoid schizophrenia for two years. The motive of killing the wife was a weak one being her oppo opposition to resign from his service and he killed her in daylight and made no efforts to ride or run away. The Supreme Court rejecting the anger theory related by prosecution held that the accused having discharged his burden of proving to be of unsound mind under Sec. 105 of the Indian Evidence Act, was entitled to the benefit of Sec. 84 of the I.P.C. and set aside his conviction.
In Devidas Loka Rathod v. State of Maharashtra, AIR 2018 SC 3093, the accused allegedly assaulted the deceased and other injured person by a sickle. He was undergoing treatment just after the incident and was taken in custody two days after the incident. His medical examination was not conducted by the Investigating Officer just after the incident raising doubts about his mental condition. His medical report reflected that he was suffering from mental illness prior to the incident and taking antipsychotic drugs continuously. Evidence of his sister and mother revealed that he had to be tied up at times and was unable to take care of himself. The Supreme Court held that he was entitled to the benefit of Section 84 of the I.P.C. on account of established preponderance of his medical condition at the time of the incident and was entitled to acquittal. The prosecution cannot be absolved to explain as to why the plea of his insanity is not tenable when a reasonable doubt is created with regard to his mental state.
Where circumstances of the case are such that the act done by the accused cannot be termed as an act of an insane person and above all much after the incident, the accused himself has shown no indication of mental abnormality, the accused cannot take immunity provided under Section 84 of the Code. State of Assam, 2003 Cri. L.J. 733 (Gau)& Kamla Dhaneshwar Pradhani v. State Bhuriya v. State of West Bengal, 2006 Cri. LJ 998 (Cal)].
Q. 8 (a). State the facts, judgment and principles laid down in Reg v. Mc Naughten, (1843) 10 CI & F 200.
Ans. McNaughten Case. The case lays down certain principles in the form of answers regarding the subject of insanity.
Facts. Daniel McNaughten was indicted of murdering Edward Drummond, Secretary to Sir Robert Peel, by shooting him in the back. He was acquitted on acceptance of his plea of insane delusion at the time of his committing the act. He mistook the victim for Sir Robert Peel, the Prime Minister of England, under the delusion that he (Sir Peel) had injured him. The decision in the case created flutter and House of Lords submitted five questions to the Judges for opinion. The answers submitted by Tindal. L.C.J., on behalf of his brother Judges are known as Mc Naughten Rules.
McNaughten Rules
1. Every man is presumed to be sane and to have sufficient degree of understanding and reason so as to know the nature of his act until the contrary is proved to the satisfaction of the Court or jury.
2. To establish the defence of insanity it must be clearly proved that the accused was labouring under such a defect of reason due to mental disease so as not to know the nature and quality of the act or that what he was doing was wrong.
3. If the accused suffering from delusion at the time of committing the act, was conscious that he should not do it and the same act was contrary to law making it an offence, the accused would be punishable.
4. The question, whether a person, who under an insane delusion as to existing facts commits an offence in consequence thereof, is excused, depends on the nature of the delusion he was suffering from. If the accused is otherwise sane and suffers only with a partial delusion he must be considered in the same situation as to his responsibility for the act as if facts with respect to which the delusion existed, were real. If under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and and the he kills kills that man, as he supposes in the self-defence, he would be exempt from punishment. If his delusion was that the deceased has inflicted a serious injury to his character and fortune, and killed him in revenge for such injury, he would be liable to punishment.
5. A medical expert, who did not see the prisoner previously, but was present during the whole of his trial, may not be asked to to the prisoner’s state give his opinion as of mind at the time of the commission of falleged crime or whether he was conscious at the time of doing the act that he was acting contrary to law, or what delusion he was labouring under any and at time of committing the act. The questions are not mere matters of science, his opinion would be evidence. But where the facts are admitted or not disputed and the question becomes substantially one of science only, it may be covenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.
Q. 8 (b). What is difference between medical insanity and legal insanity ?
Ans. Difference between medical insanity and legal insanity- There is difference between medical insanity and legal insanity. Medically every body who commits a crime is in disturbed state of mind and more or less is insane. However, according to the law a man is not insane till he has capacity to distinguish between right or wrong. So a man may be legally insane only when he fails to distinguish between right right and wrong relating to a particular matter. The test of distinguishing between ‘right’ and ‘wrong’ has been adopted in Section 84, I.P.C.
In Tulu Chetia v. State of Assam, (1976) Cri. L.J. 1476 (Gau.), the Gauhati High Court ruled that unsoundness of mind as contemplated by Section 84 of the LP.C. is legal necessity which means the state of mind in which an accused is incapable of knowing the nature of the act or that he is incapable of knowing that he is doing what is either wrong or contrary to law. In other words, his cognitive faculties are such that he does not know what he has done or what will follow his act.
Q. 8 (c). How far intoxication be taken as a ground of defence in a criminal prosecution?
Or
Discuss the liability of an intoxicated person under the Indian Penal Code.
Ans. Sections 85 and 86 of the Code taken together lay down the law on the subject of intoxication as a ground of defence to a criminal liability.
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 of intoxication, 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 or against his will. [Section 85].
Section 86 provides that “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 him was administered to him without his knowledge or against his will”. It may seem that the latter section is but an explanation of the former.
Voluntary drunkenness is no defence to a criminal charge. But in voluntary drunkenness and the persistent drunkenness, leading to insanity usually described as delirium tremens stand on a different footing and will be defence to a charge if they satisfy the terms of Section 85 of the Code.
The following are the essential elements of the defence given under Section 85 of the Code-
(i) The accused must be under the state of intoxication at the time of doing an act.
(ii) He, by reason of intoxication, must not know the nature of his act or he must not know that his act is wrong or contrary to law.
(iii) The intoxicant is given to him without his knowledge or against his will.
In Basudev v. State of Pepsu, AIR 1958 SC 488, the appellant was a retired Military Jamadar. He was charged with murder of a young boy M aged, about 15 or 16 years. Both of them attended a wedding and went to the house of the bride to take the lunch. The appellant asked M, who had taken his seat, to step aside a little so that he could occupy a convenient seat. But M did not move. The appellant whipped out a pistol and shot the boy in abdomen. The injury proved fatal. Alongwith the other members of the wedding party, the Jamadar boozed quite a lot of liquor and he became very drunk and intoxicated. The Supreme Court held-So far as knowledge is concerned, the Court must attribute to the intoxicated man the same knowledge as if he was quite sober, but so far as intent or intention is concerned the Court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication.
The Court further observed that rule of law is well-settled that-
(1) insanity, whether produced by drunkenness or otherwise is a defence to the crime charged;
(2) evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.
(3) evidence of drunkenness falling short of proved incapacity in the accused to form the intent necessary to constitute the crime, and not merely establishing that his mind was affected by the drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
It was held by Supreme Court in this case that the offence was not reduced from murder to culpable homicide not amounting to murder under the Second Part of Section 304.
In Dedekula Khabala Saheb v. State of A.P., 1996 Cr LJ 2196 (AP); both the accused and the deceased were drunk and started quarrelling. The accused was beating and dragging the deceased at the time of the incident. On seeing it, the wife and son of the deceased started to approach them but the accused hit the deceased on the head by a stone resulting in his death. It was held that voluntary drunkenness was no defence and the accused was guilty under Section 304, Part I for culpable homicide not amounting to murder.
In D.P.P. v. Beard, (1920) AC 479, where the accused, a watchman, sitting on the gate of a mill, caught a girl and ravished her. She was sent by her father to purchase some thing for the domestic purpose. She struggled but he put one hand on her mouth and pressed the thumb of the other.
Consequently, she died due to suffocation. The evidence was given that Beard was in a drunken state but House of Lords held Beard guilty of murder.
In R. v. Gallagher, (1963) All ER 813, where a man decides, to commit murder, and gets drunk in order to nerve himself, to carry it out, the question arose, if a person deliberately gets drunk for the sake of ‘Dutch Courage’ to commit murder or some other serious crime.
It was held that-It is a special case; he can probably be convicted even though he was in automation at the moment of acting. It is an intelligible rule that the defendant is to be held guilty of a crime of intention in such circumstances because his conduct must be regarded as whole.
Q. 8 (d). Define ‘consent’. What is valid consent under the law? Discuss how far it can be pleaded as a defence under Indian Penal Code?
Ans. What is consent. Consent may be defined as the willingness of a party to admit certain acts with a likelihood of adverse consequences. It is willingness to suffer harm though harm may not actually come. The I.P.C. does not define consent. But Section 90 describes the consent in negative way. It does not provide that when there would be free consent instead it described that when there would be no consent. A person is said to have given a free consent when after knowing the full facts and effects he agrees to something. A person can know facts and effects only if he is conscious. Therefore, consciousness is also an important factor before a person can be said to have given a valid consent. If person gives the consent under state of intoxication, it does not amount to valid consent.
Act not intended and not known to be likely to cause death or grievous hurt, done by consent. Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. (Section 87)
Section 87 is based on the principle ‘volunti non fit injuria’, which means he who consent suffers no injury. The policy behind this principle is that everyone is the best Judge of his own interest and that no one consents to what he considers injurious to his own interest.
Illustration. A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which in the course of such fencing, may be caused without foul play; and if A while playing fairly hurts Z, A has commits no offence.
But this section will not afford any protection where the act by itself is one which is prohibited by law, as for example, if any person wounded whilst duelling, and one of them is hurt even if they are fighting fairly, both will be liable, because duelling is prohibited by law.
Section 90 defines a valid consent in negative terms. It provides that a consent under the following circumstances shall not be a valid consent for the purposes of the Indian Penal Code:
(1) If the consent is given by a person under fear of injury or under a misconception of fact and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
(2) If the consent is given by a person who, from unsoundness of mind or into intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
(3) Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age (Section 90).
Consent plays an important role in Law of Crimes. There are certain offences in P.C., in which consent is a material element such as the case of rape (Section 375) and theft (Section 378). In case of homicide, consent has the effect of mitigating the punishment. Exception 5 to Section 300 provides that the person will not be liable for murder when the person whose death is caused being above the age of eighteen years suffers death or takes the risk of death with his own consent, In Dasharath Paswan v. State of Bihar, AIR 1958 Pat. 190, the accused, due to successive failures in High School examination, decided to end his life. He communicated his plan to his wife, who asked her husband (i.e., accused) to kill herself first and then to himself. Accused killed his wife but before he could kill himself, he was arrested. It was held by the Court that consent given by the wife was a valid consent. Therefore, the husband was held liable not for murder, but for culpable homicide not amounting to murder.
Illustration.-A, an ignorant person, falsely represents himself as a very skilful surgeon capable of performing a difficult operation on B. B, believing his statement to be true, consents to be operated by A. As a result of the operation. B dies. A is not protected.
Act not intended to cause death done by consent in good faith for person’s benefit (Section 88).-Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm or to take the risk of that harm.
Illustration. A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending, in good faith with Z’s consent Z’s with benefit, performs Z’s operation on Z, with Z’s consent. A has committed no offence, even if it turns out that the operation is unsuccessful.
In R.P. Dhanda v. Bhurelal, 1987 Cri. L.J. 1316 (MP), the appellant, a medical doctor, performed an eye-operation for cataract with the patient’s consent. The operation, however, resulted in loss of sight. It was held that since the doctor had acted in good faith for the benefit of the patient, he was protected under Section 88 of the Code.
Act done in good faith for benefit of child or insane person, by or by consent of guardian (Section 89).-Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind by or by consent, either express or implied, of the guardian or other person having lawful charge of that person is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause, to that person: Provided-
Provisos Firstly, that this exception shall not extend to the intentionally causing of death or to the attempting to cause death.
Secondly, that this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death for any purpose other than the preventing of death or grievous hurt or the curing of any grievous disease or infirmity.
Thirdly, that this exception shall not extend to the voluntary causing of grievous hurt or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity.
Fourthly, that this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
Illustration.-A, in good faith for his child’s benefit without the child’s consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception inasmuch as his object was the cure of the child.
The object of Section 89 is to allow doing in good-faith something which is necessary for the benefit of a person who is a child under twelve years of age or a person of unsound mind if the consent is given by the guardian or a person having a lawful charge of him. The word ‘benefit’ does not mean only pecuniary benefit’. The word ‘harm’ includes all sorts of injuries and death. There are four provisos to the aforesaid provision-
(1) The section does not protect intentionally causing of death or attempting to cause death (Proviso 1).
(2) The section does not protect an act if the person doing the act knows that the act is likely to cause death for any purpose except where it is done to prevent death, grievous hurt or to cure any grievous disease or infirmity (Proviso 2).
(3) The section does not exempt voluntarily causing of grievous hurt or attempting to cause grievous hurt unless it is done to prevent death, grievous hurt or to cure grievous disease or infirmity (Proviso 3).
(4) The section does not exempt the abetment of an offence which is not immune from criminal liability under the section (Proviso 4).
Section 90 provides that if anyone give his consent under fear of injury as misconception of fact, such a consent is no consent and will not protect any person seeking protection under Section 89 if he knew that it was thus vitiated. A consent is no consent, as is intended by any section of the Code, if it is given by a person who from unsoundness of mind or intoxication, is unable to understand the nature and consequence of that to which he gives his consent. On same footing is the consent of a child under 12 years of age but of immature understanding.
Q. 9. How far the plea of compulsion as a defence is available to the charge of committing an offence under L.P.C?
Or
In what cases and to what extent will a plea of compulsion by threats be a sufficient defence against a charge of criminal offence? Does it give absolute protection?
Ans. Offences done under compulsion. The circumstances in which a person who commits an offence under compulsion is execused, are described in Section 94. The principle on which such person is excused is that his will is suppressed to such an extent that a guilty mind cannot be ascribed to him. His will is subordinate to a superior will. The law under such circumstance is explained in Section 94.
Except murder or offences against the State punishable with death nothing is an offence which is done by a person who is co compelled to do it by threats, which at the time of doing it, reasonably causes the apprehension that instant death to that person will otherwise be the consequence: provided the person doing the act did not of his own accord or from a reasonable apprehension of harm to himself, short of instant death place himself in that situation by which he becomes subject to such constraint. (Section 94)
The basis of the principle under Section 94 is the maxim actus me invito factus non est mens actus which means an act done by me against my will is not my act. Where the will does not function as a free agent and it acts under the compulsion of a threat, evil intention cannot be ascribed to such will. Lest such plea might be easily taken, law places several restrictions on such plea. It refuses to excuse murder, and offences against the State punishable with death committed under threat. Then again the threat must also be of a nature reasonably causing apprehension of instant death. The law allows fear as a reason for acquittal in such offences only if there is fear of instant death or instant grievous hurt apprehended to result in instant death. The fear of death must not relate to any time in the future, it must essentially be concerned with the living present.
In R. v. Hudson and R. v. Taylor, (1971) 1 All ER 244, Miss Hudson and Miss Taylor were charged with giving false evidence at a criminal trial. They pleaded duress successfully in defence to the charge on the ground that a man who was present at the trial at which the false evidence was given had threatned to kill them unless they gave false evidence. The Court of Appeal set aside the conviction and held that the accused had no alternative under the circumstances but to give false evidence and this was a sufficient justification for the act in question.
Explanation. The two explanations to Section 94 are also to be noted-(i) A person who of his own accord or by reason of a threat of being beaten, joins a gang of dacoits knowing their character is not protected by this section, (ii) a person seized by a gang of dacoits and forced by threat of instantaneous death to do a thing which is an offence in law, as for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it is entitled to the benefit of this protection.
Does it give absolute protection?-The plea of doing an act under compulsion is a sufficient answer to a criminal charge only when it is not a charge of murder or of an offence against the State punishable with death, and only when the offence alleged has been committed under fear of instantaneous death to the person charged. The plea in other words is not an absolute defence to a criminal charge.
Q. 10. Discuss briefly the law relating to-
(a) Private defence of person
(b) Right of private defence extending to causing of death
(c) Private defence of property
(d) When right extends to causing any harm other than death.
(e) Limits to the exercise of the right of private defence and the acts against which the right is available.
(f) Commencement and continuance of the right of private defence.
Ans. (a) Private defence of person. Self-help is the first rule of criminal law. In primitive societies, self-help was the only mode of defending oneself against attacks on body or property. In civilized and developed, societies, this is curtailed to a great extent and exists in a limited way and is regulated by law. The basis for its continuance is “the vigilance of each individual on his own behalf.” State cannot protect every citizen all the time by its police. Thus, people, in certain circumstances, may resort to self-help when their person or property is attacked.
Section 96 of the Indian Penal Code gives statutory recognition to the right of private defence by providing, “Nothing is an offence which is done in the exercise of the right of private defence.” This general rule is available against an act which is otherwise an offence under the Code. An act done in the exercise of the right of private defence is not in itself an offence and as such there is no right of private defence in return. The right ght is not one of reprisal or revenge but of warding off the threat and imminent danger of an attack. The injuries received or caused by the accused, the imminence of threat to his safety and the circumstances as to whether he had time to have recourse to public authorities are all the facts relevant to justify private defence. An aggressor, therefore, cannot claim the right of self-defence. If a person acts with an intention to kill another, the intended victim is entitled to act in self- defence and if he so acts there is no right for the former to kill him nor to prevent him from acting in self-defence. The Indian Penal Code has not devised a mechanism whereby an attack may be proved as pretence for killing. [State of U.P. V. Ram Swarup, right (1974) 4 SCC 764]. The of private defence is not available when there is free fight between the parties. [Vishvas Aba Kurane v. State of Maharashtra, (1978) 1 SCC 474].
The right of private defence, as the name suggests, is an act of defence and not of offence. Consequently, it cannot be used as a shield to justify an aggression.
Right of private defence of the body and of property- According to Section 97, the right of defending person is not confined to defend one’s own body but it extends to defending the body of any other person. It is a noble movement of the heart that the indignation which kindles at the sight of the feeble injured by t d by the strong. It concerns the public safety and every honest man should consider himself as the protector of every other.
Section 97 describes right of “private defence” in the following words:-
“Every person has a right, subject to the restrictions contained in Section 99, to defend-
Firstly, His own body, and the body of any other person, against any offence affecting the human body;
Secondly, 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.”
Right of private defence is necessarily a defensive right which is available only when circumstances so justify it. Such a right would be available to accused when he or his property is faced with a danger and there is little scope of state machinery coming to his aid. At the same time, courts must keep in mind that extent of violence used by the accused for defending himself or his property should be in proportion of injury apprehended. [Ex. Ct Mahadev v. Director General, Border Security Force, AIR 2022 SC 2986]
In Munney Khan v. State of M.P., (1970) 25 SCC 430, it was held-The right of private defence is available against an offence. An aggressor has no right of private defence. There is no right of private defence where there is time to have recourse to the protection of public authorities. The right of private defence is a defensive right circumscribed by the State available only when the circumstances justify it.
In Kanchan v. State of U.P., (1983) Cr LJ. 1633, it was held- the accused who are armed attack the unarmed persons they cannot claim the right of private defence.
In Sikhar Behra and others v. State, 1982 Cr LJ 1167, the court held- When the members of the prosecution party went to the place of occurrence heavily armed with Tentas, Bhallis and Lathis and the members of the opposite party were also heavily armed, both the parties would be unlawful assembly. No party can claim the right of private defence.
Where the accused assaulted the victim on seeing his minor daughter being sexually molested hy him, the right of private defence is extendable to such case, and the fact whether sexual intercourse was with or without the consent of the daughter is not material. The fact whether the cause of susbsequent death of victim was internal injury due to a fall or result of a blow by the accused is not material. His conviction under Section 325 was, therefore, set aside. [Yeshwant Rao v. State, AIR 1992 SC 1683]
(b) Right of private defence extending to causing of death.- According to Section 100, the right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant if the offence which occasions the exercise of the right of private defence be of any of the following descriptions.-
(a) Assault, which may reasonably cause the apprehension that death will otherwise be the consequence of such assault (under Section 300).
(b) Assault, which may reasonably cause the apprehension of grievous hurt (under Section 320).
(c) Assault, with the intention of committing rape (under Section 375).
(d) Assault, with the intention of gratifying unnatural lust (under Section 377).
(e) Assault, with the intention of kidnapping or abducting.
(f) Assault to wrongfully confine (under Section 340) a person under circumstances which may cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
(g) An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise by the consequence of such act.
In Vishwanath v. State of U.P., AIR 1960 SC 67, the accused’s sister was being abducted from her father’s home even though by her husband and there was assault on her body by the husband, the Supreme Court held that the accused would have the right of private defence of the body of her sister which would extend even to the causing of death.
In Amjad Khan v. State, AIR 1952 SC 165, a communal riot broke out between some Sindhi refugees and Muslims. There were cases of looting of shops and the trouble spread in locality where the appellant and his brothers had their shops. The shop of the appellant’s brother was looted by the mob when both of them were closing their shops. The woman and the children fled to the appellant’s portion for shelter. The mob was still beating the door when the appellant fired two shots which caused death of one Sindhi and injuries to three others.
It was held that the circumstances in which the appellant was placed were amply sufficient to give him right of private defence of body even to the extent of causing death, since these things could not be weighed in a set of scales or as it is said golden scales.
In Nabia Bai v. State, AIR 1992 SC 602, the deceased attacked the accused with a knife causing serious injuries. She managed to extricate herself and snatch the knife. She inflicted some wounds to save herself as a result of which he died. The Supreme Court held the accused having acted in her right of private defence under Section 100 and, therefore, she was not liable for any offence.
In Bhawan Swaroop v. State, AIR 1992 SC 675, where the accused had fired from his gun at the complainant party to save his father whom he saw being beaten by them with lathies, it was held that the accused was acting in his right of private defence and it was not relevant whether the injuries to his father were simple or grievous.
In Yashwant Rao v. State of M.P., 1992 Cr LJ 2779, it was held that the accused seeing his daughter being sexually molested by the deceased, whether. she consented or not, was entitled to exercise the right of private defence which extended under Section 100 to the extent of causing death.
In Abdul Habib v. State, 1974 Cr LJ 248 (All), the accused inflicted injuries on back and abdomen of the deceased when he tried to get hold of the accused and to handover him to police. The deceased succumbed to the injuries, it was held that the accused was not entitled to the protection of Section 100 as the deceased had no intention to abduct the accused for wrongful confinement but intended to restrain him for marching him to the police station.
In Janab Ali Shaiker v. State, 2001 Cr LJ NOC 117 (Mad), the deceased attacked the accused with a lathi like object, which could cause only simple injury. The accused resisted attacked with faura (spade) which resulted head injury to deceased. The attack of the deceased was held to be not covered under Clause 2 of Section 100.
In Arun v. State of Maharashtra, (2009) Cri. L.J. 1534 (SC) and in Hanumantappa v. State of Karnataka, (2009) Cri. L.J. 3045 (SC), the Supreme Court stated that it is not necessary for the accused to prove private defence and if circumstances are such as to show private defence, it is open for the court to consider private defence.
(c) Private defence of property. (1) Section 97 provides that every person has right of private defence of his and others property subject to the restrictions contained in Section 99 against any act which is an offence falling under the definition of or which is an attempt to commit theft, robbery, mischief or criminal trespass.
(2) The right of private defence is also available against an act committed by an infant, an insane, an intoxicated person or if it is committed under misconception which he would have if it were an offence (Section 98).
(3) Section 99 limits the right of private defence, by prohibiting its exercise against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done by:
(i) a public servant acting in good faith under colour of his office; and
(ii) by the direction of a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
(iii) There is no right of private defence in cases in which there is time to take recourse to the protection of the public authorities.
(4) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Right of private defence of property extending to causing death. Section 103 states the cases in which the right of private defence of property extends to the causing of death of the offender and Section 104 lays down the cases where any harm other than death may be caused.
The right of private defence of property extends to causing of death or any other harm to the offender if the offence committing of which or the attempt to commit which occasions the exercise of the right to an offence enumerated hereinafter. These offences may be divided into two categories. Under the first category fall the offences of robbery; house breaking by night; and mischief by fire on a building, tent or vessel used as a dwelling place, or where property is kept in custody; under second category fall the offences of the theft; mischief, and house trespass. In the offences of the first category, the right of private defence extends to the causing of death of the offender without any other condition, but in case of the offences under second category the right extends to the causing of death only under such circumstances as may reasonably cause apprehension that the death or grievous hurt will be the consequence if such right is not exercised. (Section 103).
In Jassa Singh v. State of Haryana, (2022) Cri. L.J. 563 (SC), the Supreme Court held that the right of private defence of property will not extend to the causing of the death of the person who committed such acts if the act of trespass is in respect of an open land. Only a house-trespass committed under such circumstances as may reasonably cause death or grievous hurt is enumerated as one of the offences under Section 103.
(d) When right extends to causing any harm other than death. In case of offences of theft; mischief; or criminal trespass, not of any description enumerated in Section 103, the right of private defence extends to causing of any harm other than death.
In Ghanshyam Das v. The State of Delhi, Ad., AIR 1970 SC 44, the deceased while committing criminal trespass was not armed. There could have been no apprehension that death or grievous hurt was likely to be caused to the accused. The accused was held to have exceeded his right of private defence of property by using chhura which cut the heart and the lung. Hence, he was guilty of an offence under Section 304 of I.P.C.
In Gohool Bouree, 5 WR 33, the accused finding a starved old woman cutting his rice brutally assaulted her, fracturing her shoulder-blade and wrist and causing two wounds on the skull causing her death immediately. The accused was held to have exceeded the right of private defence.
The right of private defence is available only against an act which is itself an offence under the Code. It is available only against person or persons from whom imminent danger to life or property is apprehended and not others. The exception rendered to the acts done in private defence is based on the philosphy that if a man is attacked or his property is attacked, he need not run away. He is expected to defend his body and property against such attacks and such step is justified in the eyes of law provided the power exercised by him is proportional to the attack and the same is done torepell the attack on body or property perty of his own or of others.
It is a normal conception that State takes care of the person and property of the citizens but when there is no time to take recourse to the government machinery mery a a person is entitled to counter the attack by his own means. The rights provided under Sections 96 to 106 are not absolute one but they are subject to the limitations imposed by Section 99. It is a clear law that there cannot be a right of private defence against lawful acts. The rights enshrined under Sections 96-106 are exceptions to the law of general criminality and they authorise a person to take care of the body and property of his own and e of others, in certain conditions to save them from the miscreants.
(e) Limits to the exercise of the right of private defence and the acts against which the right is available. Section 99 lays down that there is no right of vate defence against an act which does private not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by (i) a public servant, or (ii) by the direction of a public servant acting in good faith under colour of his office though that act may not be strictly justifiable by law. This principle is based on three grounds:
(i) usually an act done by a public servant is presumed to be lawful; (ii) even if it is not lawful, law will set right the wrong done by him; (iii) it is in the interest of the society that public servants should be given some protection in the discharge of their official duties to maintain an orderly and sound administration. But in order to secure the protection of the section, it is necessary that the act done or attempted to be done by by a pub a public servant must be (i) in good faith, and (ii) under colour of his office, (iii) though that act may not be strictly justifiable by law. However, a person is not deprived of the right of private defence against an act done, or attempted to be done: (i) by a public servant as such, unless he knows or has reason to believe that the person doing the act is such public servant; or (ii) 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, if he has authority in writing, unless he produces such authority, if demanded.
In Gottipulla Venkattasiva Subbrayanam v. The State of U.P., AIR 1970 SC 1079, the Supreme Court held-The right of private defence of person and property is recognised in all free, civilised democratic societies within reasonable limits. These limits are: (1) that the same right is claimed by all other members of the society, and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order.
In Onkar Nath Singh v. State of U.P., (1975) 3 SCC 276, the Court held-If the aggressor has taken to heels, one cannot pursue him and strike a blow because it would not be in the exercise of defence. It shall become an offence because at that time the apprehension of danger had passed away.
(f) Commencement and continuance of the right of private defence of property. According to Section 105 of I.P.C., right of private defence of property commences when a reasonable apprehension of danger to the property commences.
The right of private defence of property against theft continues 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.
The right of private defence of property against robbery continues 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 instant hurt or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house breaking by night continues as long as the house trespass which has begun by such house breaking continues.
In Hukum Singh v. State, 1984 Cr LJ 1124 (P&H), the accused were driving their two carts loaded with sugarcane through the field of a person with standing crops in order to reach the main road. The Supreme Court held that the owner of the field had right of private defence against this criminal mischief as long as it continued.
In Rajesh Kumar v. Dharamvir, 1997 Cr LJ 2242 (SC), the complainant damaged the outer door of the house of the accused, whereafter the accused attacked the complainant. The Supreme Court held that since the right of private defence continued so long as the mischief continued, the accused had no right of private defence.
In Nga Pu Ke v. Emperor, AIR 1933 Rang. 340, where accused chased and attacked two customers who were carrying in their carts paddy sheaves stolen from the field of the accused. When the cartmen were running away leaving the carts and the sheaves, the accused inflicted injuries causing death of one of the cartmen. It was held that the property having being recovered, the accused had no right of private defence against the theft of their property and were liable for causing death.