GENERAL EXCEPTIONS OR DEFENCES UNDER INDIAN PENAL CODE, 1860 (Section 76 - 106)
There are certain acts which are committed by a person punishable by law but had no intention of doing so and those acts can be protected from criminal liability under section 76 - 106. Even if the accused is not aware of the defences to which he is entitled the court will suo motto apply them on his case. Thus, these are certain general exceptions.
Section 76 and 79 (Mistake of Fact)
Section 76 : Act done by a person bound or by mistake of fact believing himself bound, by law (mistake of fact)
Respective maxim - Ignorantia facti excusat i.e ignorance of fact can be excused. Nothing is an offence which is done by a person by mistake of fact and not by mistake of law, in good faith believes himself to be bound by law to do so.
E.g a soldier, he was commanded by his superior officer to fire on a mob, in conformity with that order here the soldier has committed no offence because he was bound by law.
E.g An officer of court was ordered by court to arrest Mr X and after due enquiry believing Z to be X arrest Z. Here, the officer committed no offence because of a mistake of fact believing himself to be bound by law to do so.
Mistake of fact is not a defence in case the fact itself is illegal e.g selling adulterated food stuff and then plead for mistake of fact. Thus, there should be mistakes in sensory perception or lack of mental alertness or misunderstanding of truth which result in some act or omission. Mistake of fact is allowed as defence when the act done was an order from the superior i.e. the person was bound by law to do it. If the person executes an obvious illegal command of the superior then this shall not be a valid defence.
M.H GEORGE VS STATE OF MAHARASHTRA AIR 1965 SC 722
M.H George was not an indian citizen and was trying to smuggle gold through india, india recently passed a law prohibiting carrying that much gold through india.
M.H George was hiding the gold in his jacket, that too 34 kg of gold.
Court said that even if Mr George didn’t know the law it is no excuse, he is supposed to know ignorance of law is no excuse and he was held liable under relevant provision.
Section 79 : Act done by a person justified, or by mistake of fact believing himself justified, by law. (mistake of law)
Nothing is an offence which is done by a person in good faith who believes himself to be justified by law in doing that act.
Respective maxim : ignorantia juris non excusat i.e ignorance of law is not an excuse
E.g A sees Z commit what appears to be murder. He in good faith seizes Z, to hand him over to the police. A has committed no offence though it may turn out that Z was acting in self defence.
STATE OF ANDHRA PRADESH VS VENU GOPAL 1994 AIR 33
Police (sub inspector, head constable and constable) arrested a person on suspicion that he had received some stolen property and is involved in house breaking.
Later the person was found dead with injuries on his body.
The prosecution alleged the police on wrongful confinement and torture for taking confession out of him.
Trial court convicted the police.
The High court acquitted them, giving them the defence of section 79 - whatever policemen do during investigation is justified by law.
The supreme court said that the view given by the high court is wholly unwarranted in law, beating and torturing has absolutely no relation with thr process of investigation.
Section 77 and 78 : Judicial acts - Act of judge acting judicially and Act done in pursuant to the judgment or order of court
Section 77 says that nothing is an offence which is done by a judge when acting judicially that means when a judge is acting in his jurisdiction and in good faith which he believes to be given by law and likewise under section 78, nothing is an offence which is done in pursuant (in accordance) to the judgment or order of the court of justice notwithstanding (despite of) the court may have had jurisdiction or not to pass such judgment or order, provided that the person doing the act in good faith believes that the court had such jurisdiction.
E.g a judge who sentences a prisoner to death even if wrongfully is not himself liable to be hanged for having caused somebody’s death.
80 : Accident in doing a lawful act
Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge (absence of mens rea) in doing a lawful act in a lawful manner by lawful means and with proper care and caution.
E.g A is at work with a hatchet, the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence.
A takes up a gun and without examining whether it is loaded or not points at B and pulls the triggers and B dies. Such a death is not accidental as there was a want of proper care and caution.If A has a reason to believe that the gun was not loaded, the death would have been accidental. Shooting with an unlicensed gun will not debar a person from criminal liability and claiming a defence of section 80.
Section 81 : Act likely to cause harm, but done without criminal intent, and to prevent other harm (necessity)
Respective maxim : Quad necessitas non habet legem i.e Necessity knows no law
Nothing is an offence which is done merely by reason of its being done with the knowledge that it is likely to cause harm , if it is done without criminal intention to cause harm and in good faith for the purpose of preventing or avoiding the harm to the person or property.
The principle is that when a sudden and extreme emergency arises, where one or two of them is inevitable in such cases in order to prevent the most dangerous one, it is lawful to make the smaller event happen.
R VS DUDLEY STEPHEN (1884) : it was held that a man who in order to save his life from starvation, kills another for the purpose of feeding on his flesh, is guilty of murder. The doctrine of self preservation is of no avail in such cases.
Section 82 and 83 (Act of a child or infancy) :
Nothing is an offence which is done by a child under seven years of age (sec 82). It says that any child who is below seven years of age and committed an offence will be completely exempt from the criminal liability by reason of mental incapacity to understand the act he is doing. It is not only confined to the offence under IPC but extends to any other special laws or local laws. An infant, by presumption of law, is doli incapax which refers to being ‘incapable of committing a crime’ and has not endowed with discretion to distinguish between what is right and wrong.
Whereas under section 83 it says an act of a child above seven years of age and under twelve is protected by this section from criminal liability. Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. Thus children between the age of seven to twelve are given the benefit of doubt, according to their understanding of the situation. Offences done by children between the age group of twelve to eighteen are regulated by Juvenile Justice (care and protection of children) Act 2015.
ULLA MAHAPATRA VS THE KING 1950
The boy below 12 years shouted ‘ I will cut you in pieces’ and did so to the victim. He was convicted under section 302.
Section 84 : Insanity
Act of a person of unsound mind (insanity or suffer from mental abnormal)
Nothing is an offence which is done by a person who at the time of doing such act does not know the nature of his act, what is wrong or contrary to the law by reason of unsoundness of mind or insanity.
The Supreme Court in one case observed that the law presumes every person of the age of discretion to be sane unless the contrary is proved. Merely from the character of crime it would not be good to admit the defence of insanity.
Section 85 and 86 : Intoxication
Section 85: Act of a person incapable of judgment by reason intoxication caused against his will (involuntary intoxication)
Nothing is an offence which is done by a person who at the time of doing such act does not know the nature of his act whether wrong or contrary to the law by reason of intoxication which is administered to him against his will and knowledge or consent. The benefit or plea of this section can be taken up only when there is involuntary intoxication. Voluntary drunkenness is no excuse for commission of crime that is supposed if a person while committing an offence which he knows or understood that the act he was doing is wrong and opposed to the law and still does that then defence of section 85 cannot be pleaded and will be held liable for the act he committed.
E.g B mixed alcohol in A‘s soft drink at a party. A without knowing that his soft drink is intoxicated, he consumes it. A, in a hurry, picked up another person’s wallet and went home. Here, A will not be liable for the offence of theft as he was involuntarily intoxicated.
Section 86: Offence requiring a particular intent or knowledge committed by one who is intoxicated (voluntary intoxication)
(deals as an exception to section 85)
The section says that if a person does any act which is not considered as an offence unless done with particular knowledge or intent and a person who does the act in a state of intoxication then he will be held liable to be dealt with in a same way as he would be liable if he had not been intoxicated. A person can plead for defence if he was intoxicated without his knowledge or against his will.
If a person is voluntarily intoxicated, the court will presume the same knowledge as he would have if he had not been intoxicated. This section indicates to the drunken man the knowledge he possesses and not the particular intention. Voluntary intoxicated person while committing an offence will be liable only when particular knowledge is proved and not intention.
SECTION 87-92 (CONSENT AS A DEFENCE)
The word ‘Consent’ is nowhere defined under IPC. But section 90 talks about what does not amount to consent. It states, a consent given by a person under the fear of injury, misconception of facts, intoxication, unsoundness of mind, a child below 12 years of age (unless the contrary appears from the context), who is incapable to understand the nature of his act and the consequences of the consented act, is no consent.
Section 87 : Act not intended and not known to be likely to cause death or grievous hurt, done by consent :
Nothing is an offence which is done by a person who without intended and not known to be likely to cause death or grievous hurt, if the consent for such act is either expressly or impliedly given by a person who inflicted the injury and is above eighteen years of age. This section follows the principle that he who consents to an act has no right to claim damages for the injury caused to him by that act.
E.g a patient needs an operation. He or his relatives give a consent letter to the doctor. If the operation fails, the doctor cannot be blamed. That is why it is said ‘he who consents suffers no injury’.
However, consent does not mean to act negligently. If a doctor acts negligently he will be held liable under section 304A of IPC i.e (causing death by negligence). In case of Sridevi’s mother's operation in America, the then doctors conducted the operation negligently and the court ordered to pay a huge amount as compensation. This section is based on the maxim’ volenti non fit injuria’.
Section 88: Act not intended to cause death,done by consent in good faith for person’s benefit :
Nothing is an offence which is done without any intended to cause death and in good faith and with the consent whether expressed or implied for a person’s benefit. Thus, in layman language it says if a person is giving consent to another to do some act and the person doing that consented act without any intention to cause death of a person who gave consent and in good faith if perform such act, which may cause any harm, such person will not be held liable if the act he is doing cause any injury to consent giver.
E.g A, a surgeon knowing that a particular operation is likely to cause death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefits performs that operation on Z, with Z’s consent. A has committed no offence.
R. P. DANDELL VS BHURELAL
The appellant, a medical practitioner, performed an eye operation for cataract with the patient’s consent. The operation, however, resulted in loss of eyesight . 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.
DEEPA VS SUB INSPECTOR OF POLICE
The Kerala High Court has held that section 87 and 88 of the code cannot be held to be applicable in cases where the interest of the society is involved.
Section 89: Act done in good faith for the benefit of child or insane person , by or by consent of guardian :
Nothing is an offence which is done in good faith for the benefit of a child under 12 years of age or unsound mind (whose age is not mentioned under this section) with the consent either express or implied of the guardian or any person having lawful charge. Thus, if any harm is caused for such a consented act which the doer is known to be likely to cause harm then doer is not liable. Provided that this section does not extend to :
intentional causing death or attempting to cause death,
E.g if A, in good faith for his daughter's benefit intentionally kills her to prevent her falling in the hands of dacoits , A is not within the exception and his act is illegal and intentional.
the person doing it knows to be likely to cause death for any purpose other than preventing of death or grievous hurt or the curing of any grievous disease or infirmity,
E,g A in good faith, for his child’s benefit without his child’s consent has his child cut for the stone by a surgeon. Here, A knowing it to be likely to cause harm or death to his child but not intending to cause the child’s death, A is within the exception, inasmuch his object was to cure the disease.
Voluntary causing of grievous hurt or attempting to cause grievous hurt other than preventing of death or grievous hurt or the curing of any grievous disease or infirmity,
abetment of any offence
Section 90 : Consent known to be given under fear or misconception : If a consent is given under by a person under fear of injury or under a misconception of fact, then consent is not such consent as it intended by any section of this code and the person giving a consent has reason to believe that the consent was given in consequences of such fear or misconception.
If the consent is given by a person who from unsound mind and intoxication is unable to understand the nature and consequences of that to which he gives his consent then also consent is not a such consent,
And if the consent is given by a person who is below twelve years of age, unless the contrary appears from the context.
Section 91: Exclusion of acts which are offences independently of harm caused : The exception under section 87,88 and 89 do not extend to acts which are offences independently of any harm which they may cause or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
E.g causing miscarriage (unless caused in good faith for the purpose of saving the life of a woman).
The consent of the woman or of her guardian to causing of such miscarriage does not justify the act because it is an offence independently of any harm which it may cause or be intended to cause to the woman.
Section 92: Act done in good faith for benefit of a person without consent : Nothing is an offence which is done in a good faith and by reason of any harm cause to a person for the benefit of that person causing harm without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent or incapable of giving consent and has no guardian or other person in lawful charge from whom it is possible to obtain consent in the time for the thing to be done with benefit.
Provided:
That this section shall not apply where there is intentional causing of death or the attempting to cause death
Doing of anything which the person dong it knows to be likely to cause death but in case if it is done with the purpose preventing of death or grievous hurt or the curing of any grievous disease or infirmity,
Voluntary causing of hurt or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt,
Abetment of any offence, to the committing of which it would not extend.
Section 93: Communication in good faith: no communication which is made in good faith is not an offence by reason of any harm suffered to the person to whom it is made, if it is made for the benefit of that person.
E.g a surgeon in good faith communicates to a patient his opinion that he cannot live. The patient dies as a result of the shock. Here a surgeon has committed no offence though he knew it to be likely that the communicates might cause the patient's death.
Case law : Mr X vs Mr Y hospital AIR 2003
Fact: The respondent hospital Y informed the girl to whom the appellant Mr X was engaged to marry that her husband would be HIV positive.
On account of this disclosure, the girl refused to marry the appellant Mr X and Mr X was even severely criticised by the community.
Consequently Mr X initiated the criminal proceedings against hospital Y under section 269 of Ipc.
Held: the disclosure of information was not a violation of rule of confidentiality not of right of privacy. Thus the information communicated by the hospital is therefore in good faith and was for the benefit of the girl concerned.
Section 94 : Act to which a person is compelled by threats : According to section 94, no amount of mental compulsion arising out of threat of injury can under any circumstances excuse the causing of death or the causing of any offence against the state punishable with death.
In order to justify an act under section 94 three points must be proved i.e
That the person did not voluntary expose himself to the constraint
That the fear which prompted his action was the fear of instant death,
That the act itself was done at a time when he was left with no option but to do it or die.
E.g A smith compelled to take his tools and to force the door of a house for the dacoit to enter and plunder it is entitled to the benefit of this section.
Section 95: Act causing slight harm: acts which cause slight harm. 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.
This section is based on the principle contained in the maxim, ‘de minimis non curat lex’ which means that the law takes no account of trifles. No reasonable man complains of mere trifles.
The following acts are covered by this section :
Where a person takes just seeds, vessels etc almost valueless from a tree standing on govt wastelands.
Where an accused committed a theft of cheque of no value.
Section 96-106 (Private defence of person or property) This collective section talks about the right of private defence of person or property. The provision contained in this section gives authority to a man to use necessary force against an assailant or wrongdoer for the purpose of protecting one's own body or property as also another body or property when an immediate aid of a state is not available and the act he is doing is not answerable in law for his deeds.
The right of private defence is purely preventive and not punitive or retributive.
Case : Munney Khan vs State (AIR 1971 SC 1491)
All sections 96-106 all read together to know the scope and limitation of this defence. The following limitation will apply to this defence :
Not your right to exercise if there is sufficient time for recourse to public authorities.
There should be reasonable apprehension of hurt, grievous hurt or death to the person or damage to the property.
The force used and harm caused should be only as much as reasonably necessary.
Section 96 - Nothing is an offence which is done in the exercise of the right of private defence:
Right of private defence cannot be said to be an offence in return. The right of self defence under section 96 is not absolute but is clearly qualified by section 99 which says that right in no case extends to the inflicting of more harm than it is necessary for the purpose of defence.
It is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own act.
The onus of proving the right of private defence is upon the person who wants to plead it. But an accused may be acquitted on the plea of right of private defence even though he has not specially pleaded.
Arjun vs State of Maharashtra AIR 2012
In this case it was held that if any person claiming a right of private defence reasonable apprehension of death or grievous hurt should be proved.
Section 97 : Right of Private defence of the body and of property:
Every person has a right, subject to the restriction contained in section 99, to defend
His own body or body of any other person, against any offence affecting the human body e.g culpable homicide, murder,
Secondly, the property whether movable or immovable of himself or 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.
The right of private defence of property, is therefore comparatively restricted in the sense that it is available only in cases of the four offences mentioned above and their attempts. These offences are provided under section 378, 390, 425, 441 of the IPC.
This section says that right of private defence is of two types i.e right of private defence of body and right of private defence of property of property.
In case of Indian law with regard to the right of private defence, it is available to the stranger to defend the person or property while in case of English law there must be a relationship between the person exercising the right of private defence in defending other persons such as father and son, husband and wife etc.
Section 98: Right of private defence against the act of a person of unsound mind, etc :
When an act is done by a person who by reason of 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 does an act which he does not know about the nature and consequences of the offence he is doing is not an offence and in vice versa every person has the same right of private defence against that act which he would have if the act were that offence.
Thus, this section lays down the principle that the right of private defence is available against such attackers also who may be mentally incapacitated and because of which they themselves may not be liable for any harm which they might cause.
The right of private defence of the body exists against all attackers whether with or without mens rea. The private defence law does not know about normal or non normal attackers on the body or property of any person and in both cases the same right is available to the defender.
E.g Z, under the influence of madness, attempts to kill A, Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
Section 99: Acts against which there is no right of private defence : There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of 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 in cases in which there is time to have recourse to the protection of the public authorities.
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, (extent to which the right may be exercised). E.g if someone slaps you, you will slap that person but cannot kill him.
Explanation 1 : A person is not deprived of the 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 a public servant. Thus in layman language it means if a person exercising a right of private defence does not know that the person doing the act is a public servant or act against which the right is being exercised then his right of private defence is protected and can plead for its defence unless he knows about the public servant.
Explanation 2 : A person is not deprived of the 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, demanded.
Thus in other words there is no right of private defence against the acts of public servant and against the acts of those acting under their authority or direction.
E.g there are 3 people A,B and C. B is a public servant and authorises C in written form to arrest A. C shows his written authority to A and if C does not produce his authority to A then A can use his right of private defence.
and where there is sufficient time for recourse to public authorities and the quantum of harm that may be caused shall in no case excess of harm that may be for the purpose of defence.
Case : Emperor vs Mammun
There are five accused, went out on a moonlit night armed with clubs and assaulted a man who was cutting rice in their field. The man received six distinct fractures of the skull bones besides other wounds and died on the spot. The accused on being charged with murder pleaded right of private defence of their property. Held under section 99 there is no right of private defence in cases where there is time to have recourse to the protection of the public authorities.
Section : 100-102 : Deals with right of private defence of body
Section 100 : When the right of private defence of the body extends to causing death : the section says that if any person attacks you and that falls under the following types then you can cause death of that assailant while exercising the right of private defence of the body of your own or any other person’s body. The right of private defence of the body extends to the restriction given under section 99 of the code i.e right of private defence of body must exercised within the ambit of section 99.
The types :
Such an assault may reasonably cause the apprehension that death will otherwise be the consequences of that assault.
Such an assault may reasonably cause the apprehension that grievous hurt will otherwise be the consequences of that assault.
An assault with an intention of committing rape.
An assault with an intention of gratifying unnatural lust.
An assault with an intention of kidnapping or abducting.
An assault with an 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.
An act throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequences of such act. (inserted by criminal law amendment act 2013)
Section 101: When such right extends to causing any harm other than death : this section says that if the offence is not one that is mentioned in the preceding section (i.e section 100) then the right of private defence of the body can be exercised to voluntarily cause any harm under the restriction mentioned in section 99 other than death.
Case : Mohinder Pal Jolley vs State of Punjab
Agitating workers of a factory threw some brickbats at their factory building in support of their demands and the factory owner shot from his revolver caused the death of a worker. It was held that this section did not protect him as there was no apprehension of death or grievous hurt.
Section 102: Commencement and continuance of the right of private defence of the body : thus this section talks about the time period of right of private defence of body. The right of private defence of the body commences as soon as a reasonable (not fanciful) apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not be committed and it continues as long as such apprehension of danger to the body continues.
Case: Kala Singh Case
The deceased who was a strong man of dangerous character and who had killed one person previously picked up a quarrel with the accused, a weakling. He threw the accused on the ground, pressed his neck and bit him. The accused, when he was free from the clutches of his brute, took up a light hatchet and gave three blows of the same on the brute’s head. The deceased died three days later. It was held that the conduct of the deceased was aggressive and the circumstances raised a strong apprehension in the mind of the accused that he would be killed otherwise.
Section 103 - 105 : deals with private defence of property
Section 103 : When the right of private defence of property extends to causing death : the section says that if any person committed an offence or an attempt to commit it and that falls under the following types then you can voluntarily cause death of that assailant while exercising the right of private defence of the property of your own or any other person’s property. The right of private defence of the property extends to the restriction given under section 99 of the code i.e right of private defence of property must exercised within the ambit of section 99.
The types :
Robbery
House breaking by night
Mischief by fire committed on any building, tent or vessel which is used as a human dwelling or as place for the custody of property
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.
Case : Jassa Singh vs State of Haryana
The Supreme Court held that the right of private defence of property will not extend to the causing of death of the person who committed such acts if the acts of trespass are 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.
Section 104: When such right extends to causing any harm other than death : this section says that if the offence is not one that is mentioned in the preceding section (i.e section 103) then the right of private defence of the property can be exercised to voluntarily cause any harm under the restriction mentioned in section 99 other than death.
This section is a corollary of section 103. It says that where the offence of theft, mischief or criminal trespass has been committed or attempted but the description are different from those enumerated in section 103, the right of private defence of property extends only up to extent to voluntary causing of any other harm than death.
Section 105: Commencement and continuance of the right of private defence of property : the right of private defence of property commence when a reasonable apprehension of danger to the property comences.
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 been begun by such house breaking continues.
The right can be exercised only when there is no time to have recourse to public authorities.
Section 106 : Right of private defence against deadly assault when there is risk of harm to innocent person: if an assault which reasonably causes an apprehension of death and there is a risk of harm to innocent person while exercising the right of private defence, then such harm to innocent person is not an offence by a person exercising the right of private defence. His right of private defence extends to the running of that risk.
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