Dhruva Vig

Law has been defined as “a body of rules of action or conduct prescribed by a controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.”^[1]

The law serves many purposes. The main object of the law is to protect the people by deterring or penalizing those who breach such law, which should be done with due regard to principles of equity, justice, and fair play. Therefore, a trial proceeding is established with the intent to determine the guilt of the alleged accused in a fair and reasonable manner.

An offence is a breach of a law or rule, which is punishable by law. As defined in Black’s Law Dictionary, it is “a violation of the law; a crime, often a minor one. – Also termed criminal offense.”^[2] Thus, a criminal offence is a crime against the society, is further categorized into Cognizable offence or Non-Cognizable offence.

Section 40 of Indian Penal Code states the word “offence”, which denotes a thing punishable under the Code, or under any special or local law as defined.

Section 2(n) of Code of Criminal Procedure defines the term “offence” as “any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871)”

General Exceptions

Every law is subject to certain exceptions and circumstances, where such law shall fail to apply, even if an act or omission to a certain act has been committed.

The Criminal and Punitive law covers various punishments and legal obligations which vary in degree and nature of an act, or omission. But it is not always necessary that a person gets punished for a crime which he/she has committed. The Indian Penal Code (IPC), 1860 recognizes defences in Chapter IV under “General Exceptions”.

Section 76 to 106 covers these defences which are based on the presumption that a person is not liable for the crime committed due to certain conditions.  These defences rely upon the circumstances prevailing at that point of time when the act was committed (actus reus), intent (mens rea) of a person and the reasonability of action of that accused.

Section 6 of IPC, 1860

The reasoning behind the very fabric of general exceptions originates from section 6 of IPC, where it talks about “Definitions in the Code to be understood subject to exceptions.”

“—Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration.”

Illustrations

(a) The sections, in this Code, which contain definitions of offences, do not express that a child under seven years of age cannot commit such offences; but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.

(b) A, a police-officer, without warrant, apprehends Z, who has committed murder. Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z, and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it”.

Object of General Exceptions:

Every offence is not absolute in nature, they have certain exceptions. When the Penal Code was drafted initially, it was presumed that there can be no exceptions in criminal cases, which were a major loophole in the legal system. Consequently, a separate Chapter IV was introduced by the drafting committee of the Code which was applicable to the entire concept.

In a nutshell, the object of Chapter IV includes is to establish exceptional circumstances in which an individual can escape liability from his/her actions.

Burden of Proof Principle

Under the general rule of law, it is the prosecution that must prove its case beyond reasonable doubt against the accused in a court of competent authority.

Before the enforcement of the Indian Evidence Act 1882, it was the duty of prosecution to prove that the case did not fall under any exception, but section 105 of Evidence act shifted the burden on the claimant. But in exceptional cases, as per Section 105 of Evidence Act, a claimant must prove the existence of general exception in such cases.

Excusable and Justifiable Exceptions:

The chapter further provides a classification of offences into two major heads on basis of intention and culpability. Generally, a crime is defined as the result of two essential conditions being met, i.e., Actus Reus and Mens Rea, this classification aims to separate the two in a seasonable manner from one another. The two heads are:

1. Excusable exception
2. Justifiable exception

Excusable exceptions: Exceptions in which the ill intent of the person committing the crime cannot be deduced, are said to be excusable exception to the crime. These include:

• Mistake of fact;
• Infancy;
• Accident;
• Insanity;
• Intoxication.

Justifiable Exceptions: Exceptions in which act committed are wrongful in ordinary circumstances, but due to certain conditions the act is considered to be tolerable and acceptable before eyes of law, are said fall under justifiable exceptions. These include:

• Judicial act
• Necessity;
• Consent;
• Duress;
• Communication;
• Trifles;
• Private defence.

Legal Provisions:

Mistake of Fact

The common law maxim “Iqnorantia facti doth excusat; Ignorantia juris non excusat.” (Ignorance of fact is an excuse, but ignorance of law is not excused.) is the guiding principle for this provision.

Section 76. Act done by a person bound, or by mistake of fact believing himself bound, by law.

Section 79. Act done by a person justified, or by mistake of fact believing himself justified, by law.

The essentials of mistake for it to be regarded as an excuse are:

1. the condition of events believed to exist, if real, caused the act done;
2. the mistake must be reasonable; and
3. the mistake must apply to fact and not to law.

Illustrations

1. 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.
2. 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

Case Laws:

Jaswantrai Maniklal Akhaney v State of Bombay^[3]
Held; “the presence of a specific ‘purpose‘ or ‘ foresight ‘ which allows criminal law to make a person guilty rather than actus reus is falsely negative. Mistake as a factor of absolving allows a judge to evaluate the wrongdoer’s behaviour in mind.”

State of Orrisa v. Khora Ghasi^[4]
Held: The accused, while guarding his crop field, shot an arrow on a moving object in good faith believing that such object was a bear. But the shot from arrow resulted in the death of a person. Here, the accused got the immunity under the mistake of fact.

Re Ganpathia Pillai^[5]
Held: “under the IPC, the emphasis is on whether the person has done an act with due care and attention. So, if a person, howsoever honest in his intention, blunders, he cannot get the protection under the IPC because apart from an honest intention, he is also expected to act with due care and caution.”

Judicial Acts

Judicial acts are those acts that are derived from ordinary exercise of judicial powers within appropriate jurisdiction of any person so empowered. They can also be referred to as “Act of a judge”. Section 77 and 78 of the Indian Penal Code absolves a judge in situations where he/she proceeds to act irregularly in the exercise of their powers bestowed by law. As well as where he/she may, in good faith, exceeds their jurisdiction with no lawful authority.

Section 77. Act of Judge when acting judicially.

Section 78. Act done pursuant to the judgment or order of Court.

The essentials of Judicial Acts for it to be regarded as an excuse are:

1. There was a judge,
2. He was acting judicially,
3. In the exercise of power believed in good faith to be given by the law,
4. Acts done pursuant to judgement or order of the Court.

Illustrations:

1. A judge giving death penalty to an accused in furtherance of the judicial powers of a judge in a trial.
2. A judge passing an order of life imprisonment to an accused, believing in good faith that the court has such jurisdiction, will not be held liable.

Case Laws

Suresh Kumar Sharma v. Durgalal Vijay & Ors^[6]
Held: “Proceedings initiated before Magistrate under chapter VIII of the CrPC are of judicial character and the magistrate, therefore, is protected even if he, in good faith, acted without jurisdiction or with malice.”

Accident

Accident^[7], according to Black’s Law Dictionary, is “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.” Section 80 of IPC provides immunity to a person, which states that nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

Section 80. Accident in doing a lawful act.

The essentials of a Mistake for it to be regarded as an excuse are:

1. The event was sudden, unexpected, and unforeseeable. It must be a result of misfortune,
2. There must be no criminal intention or knowledge attached to the act,
3. The act being done must be completely lawful in nature and justified,
4. The person should exercise due care and caution.

Illustrations:

1. 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.

Case Laws

State Government v. Rangaswami^[8]
Held: The court held that the act of killing of the person, even if such an act was committed by means of an unlicensed gun by the accused, shall not deprive him the benefit of immunity under the code. Here the accused was perusing his motive to kill the wild animal in his vicinity, where he ended up killing another person as an accident.

Necessity

Necessity^[9], according to Black’s Law Dictionary, is “a justification defence for a person who acts in an emergency that he or she did not create and who commits a harm that is less severe than the harm that would have occurred but for the person’s actions.” Section 81 provides for the defence of necessity, which means an act committed might be a crime if it were done with the intention to avoid consequences, which could have inflicted more harm to the person or property.

Legal Maxims:

Necessitas Facit Licitum Quod Alias Non Est Licitum; Necessity makes that lawful which otherwise is not lawful.

Necessitas Inducit Priviligum Quod Jura Privata: Necessity gives a privilege with reference to private rights.

Section 81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.

The essentials of a Necessity for it to be regarded as an excuse are:

1. Act was done with the knowledge that it is likely to cause harm.
2. It was exercised without criminal intention to cause harm.
3. It was exercised in good faith.
4. It was done to prevent other harm.
5. It could be exercised to a person or property.

Illustrations

1. 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 twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur 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 C.
   
2. 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.

Case Laws:

R. v. Dudley and Stephen^[10]
Held: Doctrine of self-preservation; a person cannot commit an offence to preserve himself from harm or death. In this case the seamen who were stranded in the sea after a shipwreck were held liable for murder because the heinous act of murder was committed by seamen to preserve their own life.

Infancy

“Infancy”^[11] defined under Black’s Law Dictionary as:
1. Minority of a person
2. Early childhood. natural infancy.
3. At common law, the period ending at age seven, during which a child was presumed to be without criminal capacity.

Section 80 of IPC states that nothing can be constituted as an offence which is done by a child below the age of seven years. Thus, a person under the age of seven years cannot be held criminally liable for any offence committed under the code.

By virtue of Section 81, a person under the age of twelve but above the age of seven cannot be held liable for any offence committed, provided that such child has not attained the mental capacity or the maturity of understanding to know that he ought not to do the act or make the omission.

Section 82. Act of a child under seven years of age.

Section 83. Act of a child above seven and under twelve of immature understanding.

Legal Maxim:

Doli Incapax; incapable of doing harm.

The essentials of a Infancy for it to be regarded as an excuse are:

1. Act of child under seven years of age
2. Act of child above seven but below twelve years of age
3. Maturity of Understanding

Case Laws:

Krishna Bhagwan v. State of Bihar^[12]
Held: If a child who is accused of an offence, has attained the age of seven years, be it at the time of decision of the court or before, can be convicted if he/she has understanding of such offence committed.

Unsound Mind/Insanity

Insanity^[13], “any mental disorder severe enough that it prevents a person from having legal capacity and excuses the person from criminal or civil responsibility.” Nothing is an offence which is done by a person, who at that time of performing 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.

Section 84. Act of a person of unsound mind.

Legal Maxim:

Actus non facit reum, nisi mens sit rea; an action does not constitute an offence unless done with a guilty intention and insane persons are incapable of entertaining blame worthy intention.

Non compos mentis; a person who does not have a control over one’s mind

Furiosi Nulla Voluntas est; mentally impaired or incapable persons cannot validly sign a will or contract or form the frame of mind necessary to commit a crime.

The essentials of Infancy for it to be regarded as an excuse are:

1. The accused must, at the time of commission of the act, be of unsound mind.
2. The nature of unsoundness must be of such nature of which he is incapable of knowing the consequences or what is in violation of law.
3. The nature of act must show that there is absence of motive in commission of an act.

Case Laws:

Madhukar G. Nigade v State of Maharashtra^[14]
Held: The benefit of Insanity should be provided only if at the time when the offence was committed, the accused was of unsound mind and not in a position to understand the consequences of their actions.

Intoxication

Intoxication^[15], “a diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption; drunkenness.” Intoxication is a state of mind in which the person is incapable of knowing the nature of act, or that the act committed was either wrongful or contrary to law. Section 85 and 86 provides immunity to an intoxicated person only if the intoxicating substance was given to him/her without his /her knowledge or against their consent. Voluntary drunkenness is no excuse for the commission of any offence.

Section 85. Act of a person incapable of judgment by reason of intoxication caused against his will.

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

Legal Maxims

Omne Crimen Ebrietas Et Incendit Et Detegit; Drunkenness both kindles and uncovers every crime.

Qui pecat ebrius luat sobrius; let him who sins when drunk be punished when sober.

The essentials of Intoxication for it to be regarded as an excuse are:

1. The intoxication must be involuntary i.e., without knowledge or against will.
2. The intoxication must be of such high degree that a person becomes totally incapable of knowing the nature of the act or that he is doing wrong or contrary to law.
3. The offence should be committed exactly at the time when the mind was under the influence of intoxication.
4. The test is that by reason of involuntary drunkenness the accused was incapable of forming an intention of committing the offence.

Case Laws

Chet Ram v. State^[16]
Held: Voluntary drunkenness is no excuse for the commission of a crime under the general exception of Intoxication.

Dasa Kandha v. State of Orissa
Held: Mere proof of being under influence is not enough proof. One has to rebut the presumption of an accused knowing the natural consequences of the crime and proving the degree of such intoxication which was insufficient to know the natural consequences of the act.

Consent

Consent^[17], “agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent. • Consent is an affirmative defence to assault, battery, and related torts, as well as such torts as defamation, invasion of privacy, conversion, and trespass. Consent may be a defence to a crime if the victim has the capacity to consent ‘and if the consent negates an element of the crime or thwarts the harm that the law seeks to prevent.”

General exception of consent has been provided under Section 87 to 91 of IPC, 1860. It occurs in non-fatal offences where a criminal act may have been committed. Such a defence is available where the victim consents to the act occurring. This means a person who gives consent does so consciously, deliberately and with knowledge of risk involved.

Section 87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent.

Section 88. Act not intended to cause death, done by consent in good faith for person’s benefit.

Section 89. Act done in good faith for benefit of child or insane person, by or by consent of guardian. Provisos.

Section 90. Consent known to be given under fear or misconception. Consent of insane person. Consent of child.

Section 91. Exclusion of acts which are offences independently of harm caused.

Legal Maxims

Consensus Tollit Ertorem; Consent removes mistake.

Qui Tacet, Consentire Videtur; He who is silent, is understood to consent.

The essentials of Consent for it to be regarded as an excuse are:

Under Section 87:

1. That the person consented to the risk
2. Such consent must be made expressly or impliedly.
3. The consent was not intended to cause death or grievous harm.
4. The person giving the consent is above eighteen years of age.

Under Section 88:

1. That the person consented to the risk
2. Such consent must be made expressly or impliedly.
3. The consent was not intended to cause death or grievous harm.
4. It was exercised in good faith.
5. The act was done for the benefit of the victim.

Under Section 89

1. The guardian consented to the risk.
2. Such consent was made expressly or impliedly.
3. The consent was not intended to cause death or grievous harm.
4. It was exercised in good faith.
5. The act was done for the benefit of the child or an insane person.

Illustrations:

1. 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 commits no offence.
2. A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.
3. A, in good faith, for his child’s benefit without his 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.
4. Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.

Case Laws:

Poonai Fattemah v. Emp.
Held: The accused professed himself to be a snake charmer and induced the deceased to believe him that he had power to protect him from any harm caused by snake bites. The deceased believed upon such claim and died as a result of venomous snake bite. The defence of consent was rejected.

Bishambher vs Roomal And Ors.^[18]
Held: Self-constituted Panchayat had the complainant parade through the village with blackened face and gave him a show-beating for the offence raping a harijan women, only to save him from the attack of harijans. Held the action of the accused Panchayat is with the consent of the complainant.

R v. Wilson^[19]
Held: Consensual activity between a husband and wife in the privacy of their own home is not a matter for criminal investigation or conviction. Therefore, consent is a valid defence under such situations.

G.B. Ghatge vs Emperor^[20]
Held: Teacher not guilty of misconduct for punishing student. No offence is committed since a teacher is a delegate of the parent to protect the interests of the student. However, the legal position on this has changed over time.

Md. Jakir Ali vs The State Of Assam^[21]
Held: It was proved beyond doubt that the accused had sexual intercourse with the victim on a false promise of marriage. The Guwahati High Court held that submission of the body by a woman under fear or misconception of fact cannot be construed as consent and so conviction of the accused under sections 376 and 417 of the Indian Penal Code was proper.

Bona-fide Acts, Communication and Compulsion (Duress)

Bona fide^[22] [Latin “in good faith”], “made in good faith; without fraud or deceit. sincere; genuine.”

Communication^[23], “the expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another’s perception. The information so expressed or exchanged.”

Compulsion^[24], “the act of compelling; the state of being compelled.”

Threat,^[25] “a communicated intent to inflict harm or loss on another or on another’s property, especially one that might diminish a person’s freedom to act voluntarily or with lawful consent.”

Duress^[26], “a threat of harm made to compel a person to do something against his or her will or judgment; especially, a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.”

Section 92 lays down that nothing is an offence by reason of any harm which it may cause to the person for whose benefit it is done, in good faith, and even without that person’s consent, under emergent circumstances.

Section 93 lays down that any communication made in good faith to a person for such person’s benefit is no offence, even though such communication may cause harm to such person.

As per Sec. 94, offences committed under compulsion or threat by a person so compelled or threatened will be excused if the threat is to cause instant death of such person. However, a person so put under threat cannot cause murder or an offence against the State punishable with death.

Section 92. Act done in good faith for benefit of a person without consent. Provisos.

Section 93. Communication made in good faith.

Section 94. Act to which a person is compelled by threats.

Legal Maxim

actus me invite factus no est meus acts; an act which is done by me, against my will is not my act, and hence I am not responsible for it.

Necessitas Publica Major Est Quam Privata; Public necessity is greater than private.

The essentials of Communication for it to be regarded as an excuse are:

1. That the communication was made in good faith.
2. Such communication would benefit the person to whom it is made.

The essentials of Duress for it to be regarded as an excuse are:

1. There was a compulsion to do an illegal act.
2. Such compulsion was made by threats of instant death.
3. It caused reasonable apprehension.
4. It excludes murder and offences punishable by death.

Illustrations:

1. Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.
2. Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed no offence.
3. A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.
4. is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the house stop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence.
5. A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.

Case Laws

X v. Hospital Z^[27]
Held: Doctors disclosed to a prospective bride of the petitioner the fact of HIV complaint of a proposed bridegroom. Doctors are not subject to any liability in this case. Bride is saved from future deadly consequences as public safety trumps confidentiality of doctor-patient relationship. Privacy is not an absolute right.

Trifles

Offence by Trivial acts are those offences which cause slight harm and which would not be complained by an ordinary person. Section 95 states that “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.” A trivial act is distinguished depending upon the nature of the injury, the knowledge, intention and other related circumstances. Therefore, if the allegation of the complainant is of a petty or trivial nature, then no criminal

Legal Maxim

de minimis non curat lex; the law takes no account of trifles.

Section 95. Act causing slight harm.

The essentials of Trifles for it to be regarded as an excuse are:

1. No harm is done.
2. No person of ordinary sense and temper would complain of such harm.

Case Law

Krishnaal v. State^[28]
Held: The court held that there was nothing that suggested that A provoked the accused which could justify him in exercising S.96 of IPC.

Public Prosecutor v. K. Satyanarayana^[29]
Held: The conduct of lawyer in using filthy language in the course of cross-examination are treated as trivial offences.

Mrs. Veeda Menezes vs Yusuf Khan And Anr^[30]
Held: During exchange of high tempers and abusive words between appellant’s husband and the respondent, the latter threw a file of papers at the former which hit the appellant causing a scratch on the elbow. The apex court said that the harm caused was slight and hence, not guilty of any offence.

Bindhewari Prasad Sinha v. Kali Singh^[31]
Held: The accused had taken away the certified copy of judgment meant for the complainant by signing his name. The complainant got another copy thereafter. The court held that the accused should be acquitted under Section 95 of the Code.

Private Defence

Self-Defence^[32], “the use of force to protect oneself, one’s family, or one’s property from a real or threatened attack. Generally, a person is justified in using a reasonable amount of force in self-defence if he or she reasonably believes that the danger of bodily harm is imminent, and that force is necessary to avoid this danger.” The right of private defence is the right to protect one’s own person and property against the unlawful aggression of others.

Sec. 96 lays down that nothing is an offence which is done in the exercise of the right of private defence.

Section 97 asserts for the right to defend a person’s own body or another body from another person or any immovable property, if act of theft or mischief is being committed with respect to such property.

Section 98 provides that for the purpose of exercising the right of private defence, the physical or mental capacity of the attacker (whether with or without mens rea, e.g., a lunatic, a minor, an intoxicated person or a person acting under misconception of fact) is no bar.

Section 99 enumerates certain situation wherein the right to private defence is not available and they are:
1. against acts of public servants, if the act committed by an official is done in good faith and under any authority, even though its actions may not be legally justifiable
2. when there was time to have recourse to the protection of public authorities
3. the right must not exceed more harm than is necessary to stop the wrongful act of the offender.

Section 100 lays down six acts of aggression, so serious in nature, that the law gives full authority to the defender even to cause the death of assailant. The six cases of assault are: (1)reasonable apprehension of death, or of (2)grievous hurt, (3)assault with the intention of committing rape, or of (4)gratifying unnatural lust, or of (5)kidnapping and abduction, or of (6)wrongfully confining a person.

While Section 101 provides for the situations wherein the right to private defence cannot provide immunity for committing death because of such defence. It says, except for the situations enumerated under Section 100, a person’s right to private defence only extends till causing any “harm”, short of death.

Section 102 lays down that the right of self-defence commences as soon as a reasonable apprehension of danger to the body arises, and if such apprehension continues (even though the offence may not have been committed).

Section 103: When the right of private defence of property extends to causing death. Instances where this section shall apply:

1. Robbery.
2. House-breaking by night;
3. mischief by fire committed on any building, vessel or tent, used for human dwelling.
4. house-trespass, theft, mischief resulting in reasonable apprehension of death or grievous hurt.

Section 104: When such right of defence extends to causing harm other than death. If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong doer of any harm other than death.

Section 105 says that the right to exercise private defence of the property only subsists if the theft continues till the offender has affected his retreat with property or recourse of the public authorities is secured, or recovery of property is done. Similarly, with respect to robbery, the right continues until the apprehension of death, hurt or wrongful restraint subsides. In case of criminal trespass or mischief or house-breaking, the right continues till the fear of the aforementioned act continues.

Section 106: Right of private defence against deadly assault when there is a risk of harm to innocent person. If in the exercise of private defence against an assault, a person causes apprehension of death, in which defender has no choice but harming an innocent person, his right will extend to that running of risk.

Section 96. Things done in private defence.

Section 97. Right of private defence of the body and of property.

Section 98. Right of private defence against the act of a person of unsound mind. etc.

Section 99. Acts against which there is no right of private defence. Extent to which the right may be exercised.

Section 100.When the right of private defence of the body extends to causing death.

Section 101.When such right extends to causing any harm other than death.

Section 102.Commencement and continuance of the right of private defence of the body.

Section 103.When the right of private defence of property extends to causing death.

Section 104.When such right extends to causing any harm other than death.

Section 105.Commencement and continuance of the right of private defence of property.

Section 106.Right of private defence against deadly assault when there is risk of harm to innocent person.

Illustrations:

1. 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.
2. A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.
3. A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

Case Laws

Puran Singh & Ors vs State Of Punjab & Ors^[33]
Held: The Court observed that where there is an element of invasion or aggression on the property by a person who has no right of possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force, if necessary.

Yogendra Morarji v. State of Gujarat^[34]
Held: The apex court discussed in detail the extent and limitations of the right of private defence of the body. There must be no safe or reasonable mode of escape any retreat for the person confronted with imminent peril to life or bodily harm except by inflicting death.

James Martin v. State of Kerala^[35] 
Held: The provisions regarding private defence are premised on the principle that it is every person’s primary duty to help him. Self-preservation is the prime instinct of every human being.

Rajesh Kumar v. Dharamvir^[36]
Held: Private defence is only justified to oppose unlawful aggression and not to punish the aggressor for the offence he has committed.

Chacko v. State of Kerala^[37]
Held: Any act done in exercise of private defence cannot give birth to the right of defence in favour of the aggressor in return.

State of Uttar Pradesh v. Ram Swarup^[38]
Held: The right of the affected person/party must not exceed more harm than is necessary to stop the wrongful act of the offender.

Laxman Sahu v. State of Orissa^[39]
Held: The apprehension of danger must be apparent, real and present. Only when a person is confronted with an immediate necessity to avert an impending danger that is not created by him, that the person can exercise his right to private defence.

Dwarka Prasad v. Sate of U.P.^[40]
Held: In case of a free fight, there is no right of private defence to either party.

Conclusion

Any act done which gives rise to a criminal liability shall make a person liable for such act or omission committed by a person, and the provisions of law recognise such offences under various statutes. Certain exceptions have also been provided for to protect the innocent from wrongful prosecution and/or punishment.

Acts that are justifiable or devoid of an ill-intent (mens rea), are subject to exemptions from criminal liability under the Indian Penal Code, 1860. Thus, such provisions have been put in place to achieve the goal of providing a free and fair trial to every person with an equal opportunity to be heard. Since every legal system has been established upon the principles of natural justice, these General Exceptions provided under IPC are synonymous with spirit of these principles.

1. Black’s Law Dictionary, 6th ed., s.v. “law.” ↑
2. Black’s Law Dictionary, 9th ed., “offense” pg.1186 ↑
3. AIR 1956 SC 575 ↑
4. 1978 CriLJ 1305 Orissa HC ↑
5. AIR 1953 Mad 936 ↑
6. (2011) ILR 1 MP 628 ↑
7. Black’s Law Dictionary 9^th ed., pg. 16 “accident’ ↑
8. 1952 CriLJ 1191 ↑
9. Black’s Law Dictionary 9^th ed., pg. 1130 “necessity” ↑
10. 14 Q.B.D 1884 ↑
11. Black’s Law Dictionary 9^th ed., pg. 849 “infancy” ↑
12. 1991 1 BLJR 321 ↑
13. Black’s Law Dictionary 9^th ed., pg. 865 “insanity” ↑
14. 2006 CriLJ 1305 ↑
15. Black’s Law Dictionary 9^th ed., pg. 898 “intoxication” ↑
16. 1971 CriLJ 1246 ↑
17. Black’s Law Dictionary 9^th ed., pg. 346 “consent” ↑
18. AIR 1951 All 500 ↑

19. 1996 2 Cr. App. R. 241

    ↑

20. 1949 CriLJ 789 ↑
21. 2007 CriLJ 1615, 2007 (3) GLT 497 ↑
22. Black’s Law Dictionary 9^th ed., pg. 199 “bona fide” ↑
23. Black’s Law Dictionary 9^th ed., pg. 316 “communication” ↑
24. Black’s Law Dictionary 9^th ed., pg. 326 “compulsion” ↑
25. Black’s Law Dictionary 9^th ed., pg. 1618 “threat” ↑
26. Black’s Law Dictionary 9^th ed., pg. 578 “duress” ↑
27. (1998) 8 SCC 296 ↑
28. 1998 CriLJ 990 ↑
29. 1968 AIR 825, 1968 SCR (2) 387 ↑
30. 1966 AIR 1773, 1966 SCR 123 ↑
31. AIR 1977 SC 2432 ↑
32. Black’s Law Dictionary 9^th ed., pg. 1481 “self-defence” ↑
33. 1996 AIR 1092, 1996 SCC (2) 205 ↑
34. AIR 1980 SC 660 ↑
35. 2004 2 SCC 203 ↑
36. AIR 1997 SC 3769 ↑
37. 2001 10 SCC 640 ↑
38. 1974 SC 1570 ↑
39. AIR 1988 SC 83 ↑
40. 1993 SCC (Cri) 882 ↑