General Defences 2

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Indian Penal Code
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2
GENERAL DEFENCES
UNITS
Insanity : 5
UNIT 6
Intoxication 15
UNIT 7
Private Defence 19
UNIT 8
Other Defences 27

·1
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BLOCK 2 GENERAL DEFENCES
..
In this Block General Defences have been explained in detail.

Unit 5 deals with Insanity, where the concept of "Defence" as per Indian Penal'
Code has been explained. Further light has been thrown on various judicial
pronouncements.

In Unit 6, learners would be able to discuss the defence of intoxication as given

under Indian Penal Code.

Unit 7 tries to bring into focus right of private defence in detail, be it of body or
of property. The scope, limitation, commencement and continuation of private
defence are the different aspect of this Unit.

Unit 8 discusses other defences where the plea of Mistake as a defence under
Indian law has been discussed.
..
 .. '

~ UNIT 5 INSANITY
Structure
5.1 Introduction ••
5.2 Objectives
5.3 Defences as per Indian Penal Code
5.4 Excusable Defences
5.5 Indian Cases on Insanity
5.6 Summary
5.7 Terminal Questions
5.8 Answers and Hints

5.1 INTRODUCTION
In this unit we shall look at the general defences provided in the Penal Code
which may be pleaded by the accused to claim exemption from punishment
prescribed for the offence of which he is charged. Chapter IV of the Penal Code
entitled "General Exceptions" consolidates and places at one place the general
defences available against various criminal offences. There are thirty-one
Sections, namely, Section 76 to Section 106, both inclusive which deal with
them. These Sections control, by virtue of Section 6 of the Act, all the Sections
defining the offences under the code or any subject or local law. Therefore,
correct awareness of these Sections is essential in determining the criminal
responsibility of an offender. These Sections can be in a way said to have
consolidated the principles which were found floating under English common
law at many places.

5.2 OBJECTIVES
After reading this unit, you should be able to:

• discuss the concept of "defences" as per Indian Penal Code; and

• analyse the judicial pronouncements on Insanity.

5.3 DEFENCES AS PER INDIAN PENAL CODE

On a closer scrutiny of the provisions in the chapter on "General Exceptions", it
can be seen that as a whole they provide two broad classes of exceptions, namely,
first, those in which the offence though committed is excusable, and, secondly,
those in which the offence though committed is justifiable. The first category of
'general defences', which are excusable, includes following:

1) Mistake, Sections 76 and 79.

2) Executive and judicial Acts, Sections 77 and 78.
3) Accident for misfortune, Section 80.
4) Necessity, Section 81.
5) Duress or Compulsion, Section 94. 5
General Defences 6) Non-mentality due to:
a) Immaturity, Sections 82 and 83; or,
b) Derangement, Sections 84, 85 and 85.
7) Consent, Sections 87, 90 and 91.
8) Benevolence, Sections 88, 89, 92 & 93.
9) Triviality, Section 95.

Under the second category of 'general defences', which are justifiable, we shall
discuss the right of private defence (Sections 96 to 106).

The difference between the two categories of defences is that in the former case
the act is excused for want of necessary requirements of mens rea, while in the
latter category the act done is not excused but is justified on account of some
other considerations neutralizing the liability otherwise incurred.

In the first category of cases, the act is not criminal because either there was
incapacity to form intent or immaturity or want of understanding or the intention
was not criminal, while in the latter case the act though criminal is not punishable
because it was otherwise meritorious. The foundation of general exceptions
chapter is based on the principle that criminal liability cannot be fastened when
there is incapacity to form guilty mind or absence of guilty mind or the act being
otherwise meritorious or justified in the eyes of law.

It may be stated at the very outset, that if the burden of proof is on the prosecution
to prove the guilt of the accused to the hilt, the burden of proof is on the accused
to prove that his case falls in general exceptions. If he does so, no criminal
liability can be fastened on him even if the prosecution may have discharged its
burden of proving guilt against him beyond reasonable doubt. The general rule
of burden of proof relating to the applicability of general exceptions contained
in the Penal Code in the context of right of private defence has been summed up
by the Supreme Court in State of U.P. v. Ram Swarup' thus:

Self Assessment Question

1) What is justifiable and excusable defence?

6 I (1974) 4 SCC 764 at

The burden which rests on the prosecution to establish its case beyond a reasonable Insanity
doubt is neither neutralized nor shifted because the accused pleads the right of
private defence. The prosecution must discharge its initial traditional burden to
establish the complicity of the accused and not until it does so can the question
arise whether the accused has acted in self-defence. This position, though often
overlooked, would be easy to understand if it is appreciated that the Civil Law
..
rule of pleadings does not govern the rights of an accused in a criminal trial.
Unlike in a civil case, it is open to a criminal court to find in favour of an accused
on a plea not taken up by him and by so doing the Court does not invite the
charge that it has made out a new case for the accused. The accused may not
plead that he acted in self-defence and yet the Court may find from the evidence
of the witnesses examined by the prosecution and the circumstances of the case
either that, what would otherwise be an offence is not one because the accused
has acted within the strict confines of his right of private defence or that the
offence is mitigated because the right of private defence has been exceeded.

What is the principle of proof applicable in case of claim of right of private

defence is equally applicable to other defences under Chapter IV of IPC. The
benefit of doubt 'may be availed of not of every doubt but only of a doubt for
which reasons can be given. As stated earlier that the basis of the chapter on
general exception is that these defences deal with the circumstances which
preclude the existence of mens rea and are, therefore, enumeration of
circumstances that are incompatible with its existence. All these principles have
been described as "conditions of non- imputability" or "conditions for exemption
.from criminal responsibility". To constitute a crime there must be an actus reus
and mens rea. From this it follows that a wrongdoer must possess (a) free will,
(b) intelligence to distinguish between good and evil, (c) knowledge of facts
upon which the good and evil of the act m ay depend, and (d) knowledge that the
act is prohibited by law. If anyone of these elements is wanting, the responsibility
is negatived.

Besides generaldefences, there is another category of defence available in respect

of certain offences which can better be stated as partial defence which does not
negate the criminal liability completely but only reduces it and visits the accused
with lesser penalty. In other words, under this category criminality of the accused
is not completely wiped up but is reduced and the punishment mitigated. These
partial defences to Section 300 IPC, if successfully, pleaded reduce criminality
from what would have been murder to culpable homicide not amounting to
murder.

5.4 EXCUSABLE DEFENCES

Under the Indian Penal Code defence of unsound mind is contained in Section
84 of the IPC which states as under:

Nothing is an offence which is done by a person who, at the time of doing it, by
reason of the unsoundness of the mind, is incapable of knowing the nature of the
act, or that he is doing what is either wrong or contrary to law.

From the above, it can be seen that a person is exempted from criminal
responsibility if at the time of doing the act, because of unsoundness of mind, he
was either incapable of knowing (1) the nature of the act, or (2) that he was
doing what was either wrong or contrary to law. 7
General Defences
Self Assessment Question
2) What is Section 84, IPC?

••

The general principle underlying this provision is that in order to hold a person
legally responsible for a crime, it is necessary that the person who did the forbidden
act had at that time sufficient mental capacity to form a criminal intent. It is
considered inhuman to punish a person who is suffering from an organic incapacity
to form a criminal intent. There is a distinction between a person suffering from
incapacity to know and a person not knowing that his act is wrong. The former
is incapacity to know and the latter is a situation where the person is not using
his faculty of reason to know when he could have known had he cared to know.
The former is not punishable but the latter is punishable if a forbidden consequence
ensues by the act of accused.

The Act does not define 'insanity' or 'unsoundness of mind'. Indian law insanity
is based on the answers given by the judges in the famous M'Naghten Case.'
The Daniel M'Naghten was under an insane delusion that Sir Robert Peel, the
then Prime Minister of England, had injured him and mistaking Edmond
Drummond, Private Secretary to Sir Robert Peel, to be him he shot and killed
him. He was tried in London before Tindal c.J. and two other judges and was
defended by Mr. Cockburn who later on became the Lord Chief Justice of England.
The accused pleaded insanity in his defence and the medical evidence produced
showed that the prisoner was labouring under a morbid delusion which carried
him away beyond power of his own control. The Chief Justice in his charge to
the jury said that the question for them to be determined was whether at the time
of committing the act he had or had not the use of his understanding so as to
know that he was violating the laws of God and man. The jury acquitted the
prisoner on the ground of insanity.

The trial of M'Naghten and his acquittal caused considerable hue and cry against
the verdict and became the subject matter of debate in the House of Lords and as
a result the House of Lords called on the fifteen judges to lay down the law on
the subject of criminal responsibility in cases of alleged lunacy in answers to
questions propounded by them. Fourteen of the judges united in their answers
and the remaining judge, Maule J. returned separate answers which, however,
did not materially differ from his colleagues. Tindal C.J delivered the opinion of
the majority. These questions and answers are known as the M'Naghten Rules'
which form the basis of the modem law on insanity. The answers given by the
judges in M'Naghten case can be summed up in the following prepositions:

2 (1843) 4 St. Tr. (N.S.) 847, 8 E.R. l718.

3 M'Naghten case (1843)4 St. Tr. (N.S.) 847, 8 E.R. l718.
8
1) That every man is presumed to be sane and to possess a sufficient degree of Insanity
reason to be responsible for his crimes, until the contrary. be proved to the
satisfaction of the jury or the court.

2) To establish defence on ground of insanity it must be clearly shown that at ..

the time of committing the act, the accused was labouring under such a
defect of reason from disease of mind, as not to mow the nature and quality'
of the act he was doing, or if he did not know it, that he did not know that
what he was doing was wrong.
,
3) If the accused was conscious that the act was one which he ought not to do
and if that act was at the 'same time contrary to the law of the land, he is.
punishable. .

4) A medical witness who has not seen the accused before trial should not be
asked whether on evidence he thinks that the accused was insane.

5) Where the criininal act is committed by a man under some insane delusion
as to the surrounding facts, which conceals from him the true nature 'of the
act he is doing, he will be under the same degree of responsibility as he.
would have been on the facts as he imagined them to be. .'

From the above it is thus clear that the test of insanity is in the power of,
distinguishing between right and wrong not in the abstract but with regard to the
particular act committed. The M'Naghten Rules have been severally criticized
by the medical men, particularly by the experts in the field of psychiatry. The
main criticism is that these rules only refer to the insane delusion which is only
one aspect of insanity. The doctors say that the derangement of the mind may be
caused not only by insane delusion, that is, when it affects one's beliefs, but also
when it affects one's emotions and will faculties which, indeed, occur more
frequently. It may be mentioned here that the medical insanity is a concept
which is wider than legal insanity and the reason is based on conceptual
distinction. For a medical professional or doctor the focal point is the patient i.e.
an individual and, therefore, according to him only a person with some
derangement would commit a serious offence while as the focal point for a lawman
is the society and it is the protection of the society which is paramount and
overriding claim over !individual interest. , Lawman expect people to control
their emotional and will outburst or volitional outburst because of the derangement
of mind as long as their cognitive faculties remain intact and are capable of
distinguishing between right and wrong.

According to the medical point of view it is probably correct to say that every
man at the time of committing a criminal act is insane and, therefore, needs
exemption from criminal responsibility owing to morbid condition of mind
whether temporary or permanent. While from the legal point of view, a man
must be held to be sane so long as he is able to distinguish between right and
wrong, a test which has been incorporated in Section 84 of the Penal Code.
Thus, one can say that it is not comprehensible that the two views, the medical
and the legal, will never agree.

It has been already observed that Indian law is based on the answers given to the
judges in the M'Naghten case. In order to get the benefit of the provisions of
Section 84, three elements are necessary- that the accused, because of unsoundness
9
General Defences of mind was, first, incapable of knowing the nature of the act; or, secondly, that
the act was contrary to law; or, thirdly, that the act was wrong. In Queen-Empress
v. Kader Nasyer Shah' the Calcutta High Court described the instances of
unsoundness of mind of this description would be such as these:

A person strikes another, and in consequence of an insane delusion thinks he is

breaking a jar. Here he does not know the nature of the act. Or he may kill a
child under an insane delusion that he is saving him from sin and sending him to
heaven. Here he is incapable of knowing by reason of insanity that he is doing
what is morally wrong. Or he may under insane delusion believe an innocent
man Whom he kills to be a man that was going to take his life; in which case, by
reason of his insane delusion, he is incapable of knowing that he is doing what is
contrary to the law of the land.

The Code has not defined what is the unsoundness of mind. It is sufficient to say
that the only unsoundness of mind that would result ina complete excuse would
be that unsoundness of mind by reason of which the accused was incapable of
knowing the nature of the act or that he was doing what was either wrong or
contrary to law. In Gedka Goala' the accused was given benefit of exemption of
murder even when he had committed multiple murders while suffering from
mental derangement of some sort when it was found that there was (1) absence
of any motive, (2) absence of secrecy, (3) want of pre-arrangement, and (4) want
of accomplices. It was held that these circumstances were insufficient to support
the inference that the accused suffered from unsoundness of mind of the kind
referred to in Section 84. The basis for the acceptance of insanity as an excusatory
defence is that it is assumed that the offender does not have the malice afterthought
or capacity to entertain guilty mind before committing an offence.

In India, the law on burden of proof in such cases is stated in Section 105 of the
Evidence Act which shifts the burden of proof in such cases on the accused
person. The burden of proof, however, is not higher than the burden which rests
upon the plaintiff or defendants in civil proceedings i.e. preponderance of
evidence.

5.5 INDIAN CASES ON INSANITY

In Lakshmi v. State", the court emphasized that the significant word in Section
84 of IPC is 'incapable'. The court emphasised that the accused claiming
protection under it should be 'incapable' of knowing whether the act done by
him was right or wrong and stated that the capacity to know a thing is quite
different from what a person knows. The former is a potentiality; the latter is the
result of it. If a person possesses the former he cannot be protected in law whatever
might be the result of his potentiality. In other words, what is protected is an
inherent or organic incapacity, and not a wrong or erroneous belief which might
be the result of a perverted potentiality. The court observed thus 7 :

4 (1896) ILR 23 Cal. 604.

5 16 Pat. 333; following Kader, 23 Cal. 604; Laxman Dagadu, 10 Born. 512; Maniram, 8
Lah. 114.
6 AIR 1959 All. 534.
7 [bid
10
A person might believe so many things. His beliefs can never protect him once Insanity
it is found that he possessed the capacity to distinguish between right and wrong.
If his potentialities lead him to a wrong conclusion, he takes the risk and law
will hold him responsible for the deed which emanated from him. What the law
protects is the case of a man in whom the guiding light that enables a man 0
distinguish between right and wrong and between legality and illegality is
completely extinguished. Where such light is found to be still flickering, a man
cannot be heard to plead that he should be protected because he was misled by
his own misguided intuition or by any fancied delusion which had been haunting
him and which he mistook to be a reality. Our beliefs are primarily the offspring's
of the faculty of intuition. On the other hand the content of our knowledge and
our realisation of its nature is born out of the faculties of cognition and reason.

If cognition and reason are found to be still alive and gleaming, it will not avail
a man to say that .at the crucial moment he had been befogged by an overhanging
cloud of intuition which had been casting its deep and dark shadows over than.
"Legal insanity" is not the same things as "medical insanity" and a case that falls
within the latter category need not necessarily fall within the former. Further,
the case where a murderer is struck with an insane delusion is different from the
case of a man suffering from organic insanity. In the case cited the plea of the
accused would belong to the former class, whereas in the present case the plea
might be different.

The court in this case approved the decision in Anandi v. Emperor' but did not
agree with the decision in Ashiruddin Ahmed v. The King", It is important to
refer to the facts of both these cases to highlight as to why the Allahabad High
Court in Lakshmi tried to distinguish one from other.

In Ashiruddin Ahmed the accused was commanded by someone in parties to

sacrifice his own son of five years. The next morning the accused took his son to
a mosque and killed him by thrusting a knife in his throat. He then went straight
to his uncle's house but finding a chowkidar nearby took his uncle to a tank at
some distance and slowly told him the story. On these facts it was held by a
bench of Calcutta High Court that a case of insanity under Section 84 was made
out. It was held in that case that to enable the accused to get the benefit of
Section 84 he should be able to establish anyone of the following three elements:
viz. the nature of the act was not known to the accused or that the act was not
known by him to be contrary to law or that the act was not known to him to be
wrong. On the above facts the bench held that the third element was established
by the accused, namely, that the accused did not know that act was wrong. This
was obviously on the ground that the accused was labouring under a belief that
his dream was a reality. The Allahabad High Court in Lakshmi's case found
itself unable to endorse this view of Section 84 as it thought that once this view
was accepted to be correct it would lead to serious consequences which was
endanger safety and security of the society as it would be open to an accused in
every case to plead that he had dreamt a drain enjoining him to do a criminal act
and believing that his dream was commanded by a higher authority. He was
impelled to do the criminal act, and he was therefore protected by Section 84.
The court held that such a plea would be untenable and would not fall within the

8 AIR 1923 All 327.

9 AIR 1949 CaI. 182. 11
 General Defences four corners of Section 84. The court further said that the fallacy of the above
view lay in the fact that it ignored that what Section 84 laid down was not that
the accused claiming protection under it should not know an act to be right or
wrong but that the accused should be incapable of know whether the act done by
him was right or wrong. The capacity to know a thipg is quite different from
what a person knows.

In Anandi v. Emperor, a lady named Anandi had murdered a boy. There was in
this case in her favour the evidence of two experts, one of whom was a Civil
Surgeon and the other also was a doctor. Both of them had found the accused
subject to fits of insanity shortly after the murder. There was also evidence of
hereditary insanity in the family of the accused. There was also evidence showing
that her grandfather had at some time or other been insane. Further, the facts
indicated that the murder was committed without any motive. It is in these
circumstances that the court held that Anandi was suffering from insanity
unsoundness of mind at the time of committing the offence within the meaning
.. of Section 84.

It will be also not wrong to say that insanity as a defence has not be accepted by
Indian courts in many cases. Even in cases where the courts admitted that the
accused suffered from derangement of some sort but were not satisfied that the
derangement was of the kind which had rendered cognitive faculty of the accused
incapacitated within the meaning of Section 84 of the IPe. Kedar Nasyr Shah's
case is a good case to be referred here. In this case the court admitted that the
accused was suffering of some delusion and derangement of mind but at the
same time it also stated that the derangement was not one as stated in Section 84.
The court observed thus:

We make no special recommendations as to how the prisoner should be dealt

with; but we deem it right to observe that, though having regard to the language
of Section 84 of the Indian Penal Code we must hold that the accused is not
entitled to be acquitted, we think that the murder was committed without any
apparent same motive; that the accused was at the time suffering from mental
derangement of some sort; and that he is therefore entitled 'to every indulgent
consideration.

Another important feature or trend in judicial decision has been that it is only
where the courts have been s~t!sfied that the accused had placed medical evidence
of experts in support of the plea of insanity which was found by the courts credible
that the benefit of Section 84 was granted.

We may here give some of the judicial decisions in brief to show the judicial
thinking while dealing with the cases where insanity was pleaded as a defence.
In Queen-Empress v. Kedar Nasyr Shah'? , the accused who was very found of a
child living in his neighbourhood killed the child when his father left the child in
his custody without any sane motive. It seems that the accused had been suffering
of some sort of mental derangement due to loss of his destruction of his house
and property by fire. Immediately after killing the child he deposited the body of
the child in a secluded place and hid himself in a jungle nearby. After his arrest
he was not fit to stand trial for some time and was put on trial after he was
declared fit to stand the trial. He pleaded insanity as his defence. The Calcutta

IO (1896) ILR 23 Cal 604.

12
High Court in a well-reasoned judgement observed that under Section 84 it is Insanity
only unsoundness of mind which materially impairs the cognitive faculties of
the mind that can form a ground of exemption from criminal responsibility the
nature and the extent of unsoundness of mind required being such as would
make the offender incapable of knowing the nature of the act, or that he is doing
what is wrong or contrary to law. The court also after referring to the various
••
medical and legal authorities observed that insanity not only affects the cognitive
faculties of mind which guide our actions, but also our emotions which prompt
our actions and the will by which our action are performed.

The court observed that it may be that our law limits non liability only to those
cases in which insanity affect the cognitive faculties, because it is thought that
those are the cases to which the exemption rightly applies and the cases in which
insanity affects only the emotions and the will, SUbjecting offenders to impulses,
whilst it leaves the cognitive faculties unimpaired have been left outside
exceptions, because it has been thought that the object of the criminal law is to
,make people to, control their insane as well as sane impulses. The court observed
that whether this was the proper view to be taken in the matter or whether the
exemption ought to be extended as well to the cases in which insanity affects the
emotions and will as to those in which it affects the cognitive faculty was a
question which was not for the court to decide even though no doubt eminent
parties have favoured extending the exemption to those cases as well. The court
rightly observed that it was duty to administer the law as founded and it is for the
legislature to stop language and consider reframing of the law to extend it to
those cases not covered by the plain language of Section 84. The court applied
the law as it stood to the facts of the case and held itself enable to hold that it had
been shown that the accused at the time of killing the child was by reason of
unsoundness of mind capable of knowing nature of his act or that what he was
doing was either wrong or contrary to law. The court held that the circumstances
attending the murder showed that he could not have been devoid of such
knowledge. Though, according to the court they showed that he must he must at
that time have been suffering from mental derangement of some sort. The court
held that though the evidence showed that the accused was fond of the boy, and
he had no quarrel with his father but the accused had observed some secrecy in
committing the murder and it tried to conceal the corpse, and had hid himself in
a jungle which only goes to show that he was not suffering from incapacity or
impairment of cognitive faculty envisaged under Section 84. The court, however,
took the course of directing that the proceedings be forwarded for executive
clemency without making any special recommendation as to how the accused
should be dealt with.

5.6 SUMMARY
Chapter IV of the Indian Penal Code is about "General Exceptions". In this two
types of defences have been explained, i.e. justifiable and excusable, 'justifiable
defences' are discussed in Sections 76 to Section 95 and 'excusable defences'
from Section 96 to Section 106 of IPe. The foundation of general exceptions is
based on the principle that criminal liability can not be fastened when there is
incapacity to form guilty mind or absence of guilty mind or the act being otherwise
meritorious or justified in the eyes of law. The basis of the chapter on general
exceptions is that these defences deal with the circumstances which preclude the
13
..
 General Defences existence of "mens rea". Various judicial decisions on Insanity show that it is
only where the courts have been satisfied that the accused placed medical evidence
of experts in support of the plea of insanity which was found by the courts credible
that the benefit of Section 84 was granted.

5.7 TERMINAL QUESTIONS ••

1) Discuss in brief the Excusable Defences as provided in IPC.

2) Discuss few Indian cases on Insanity.

5.8' ANSWERS AND HINTS

SelfAssessment Questions
1) Refer to Section 5.3
2) Refer to Section 5.4

Terminal Questions
1) Refer to Section 5.3
2) Refer to Section 5.5

l,
 UNIT 6 INTOXICATION

Structure
6.1 Introduction
6.2 Objectives ••
6.3 Defence of Intoxication as per IPe
6.4 Summary
6.5 Terminal Question
6.6 Answers and Hints

6.1 INTRODUCTION
The Indian Law on Intoxication (drunkenness) is contained in Sections 85 and
86 of the Act. It is voluntary intoxication having same effect as insanity which
exempts the accused from the criminal liability and not voluntary drunkenness.
Section 85 which deals with voluntary intoxication, affords the same protection
as Section 84 affords to a person of unsound mind. In defining the excuse Section
85 uses the very same words as are used in Section 84, namely, "incapable of
knowing the nature of the act or that he is doing what is either wrong or contrary
to law," provided he was intoxicated without his knowledge or against his will.
Under Section 86, in order to avail of the limited protection provided in cases of
voluntary intoxication, the person under voluntary intoxication or drunkenness
is presumed to have the same knowledge as that of the non-intoxicated person.
But in respect of the offences where mens rea in the form of intention is an
essential ingredient of an offence the intention has to be determined at the time
of commission of the offence and if a person was incapable of forming an intent
due to impairment of the cognitive faculty because drunkenness even though
voluntary the person cannot be attributed with intention to commit the offence
in question and to that extent voluntary drunkenness provides limited protection
from criminal liability. In other words, he can be only punished on the basis of
, knowledge and not of any particular intention.

6.2 OBJECTIVES
After reading this unit, you should be able to:

• discuss the Indian Law on Intoxication; and

• analyse the nature of defences as provided in Sec 85 and in Sec 86 of IPe.

6.3 DEFENCE OF INTOXICATIONAS PER IPC

Voluntary drunkenness under Section 86 does not afford a defence that the
knowledge required to complete an offence was wanting, though it may be shown
that any intent if required was absent. It may be observed that the first part of
Section 86 speaks of intent or knowledge while the second part deals with
knowledge. An omission of intent in the second part, therefore, leads to a
presumption that only presumed knowledge is attributable and not the presumed
intention. Thus in voluntary drunkenness knowledge has to be presumed of a
15
General Def~nces non-intoxicated person but the same is not true in case of mens rea in the form of
intention. Therefore, in order to claim exemption from criminal liability under
Section 85 the accused has to establish that at the time of doing the act by reason
of intoxication he was (1) incapable of knowing the nature of the act, or (2) that
he was doing what was either wrong or contrary to law, and (3) that the thing"
which intoxicated him was administered to him without his knowledge or against
his will.' The legal position on voluntary intoxication has been authoritatively
stated by the Supreme Court in Basudeo v. State of Pepsu" and observed thus:

Self Assessment Question

1) What is Section 86 of IPC?

It is no doubt true that while the first part of the Section speaks of intent or
knowledge, the latter part deals only with knowledge.iand a certain element of
doubt in interpretation may possibly be felt by reason of this omission. If in
voluntary drunkenness, knowledge is to be presumed in the same manner as if
there was no drunkenness, what about those case where mens rea is required?
Are we at liberty to place the intent on the same footing, and if so, why has the
Section omitted intent in its latter part? This is not the first time that the question
comes up for consideration. It has been discussed at length in many Sections
and the result may be briefly described as follows: so far as knowledge is
concerned we must attribute to the intoxicated man the same knowledge as if he
was quite sober. But so far as the intent or the intent is concerned, we must
gather it from the attending general circumstances of the case paying due regard
to the degree of intoxication; Was the man beside his mind altogether for the
time being? If so, it would not be possible to fix him with the requisite intention.
But if he had not gone so deep in drinking, and from the facts it could be found
that he knew what he was about, we can apply the rule that a man is presumed to
intend the natural consequences of his act or acts.

Of course, we have to distinguish between motive, intention and knowledge.

Motive is something which prompts a man to form his intention and knowledge
is an awareness of the consequences of the act. In many cases intention and
knowledge merge into each other and mean the same thing more or less and
intention can be presumed from know ledge. The demarcating line between
knowledge and intention is, no doubt, thin but it is not difficult to perceive that
they connote different things.

In Basudeo, the appellant was a retired military Jamadar who was charged with
the murder of a young boy who had accompanied him to a wedding party. When
they had gone to take the midday meal on the next day, the appellant asked the
boy to make a room for him to enable him to occupy a convenient seat, but the
boy did not do so. This enraged the appellant who whipped out a pistol and shot

16
I AIR 1956 se 488.
 the boy in the abdomen. The injury being fatal caused the death of the boy. The Intoxication
appellant Jamadar was undoubtedly drunk and intoxicated. This circumstance
and the total absence of any motive of premeditation to kill weighed with the
Sessions Judge who awarded him lesser penalty of imprisonment of life. An
appeal was preferred to the Pepsu High Court without any success. Special
leave to appeal was granted by the Supreme Court on the question whether the
offence committed by the appellant fell under Section 302 or 304 of the Penal"
Code having regard to the provisions of Section 86 of the Penal Code. The
Supreme Court held that the offence was not reduced from murder to culpable
homicide not amounting to murder under the second part of Section 304 of the
Penal Code. The court upheld the findings of the division of the High Court
holding that the facts placed before it went to prove that there was not proved
incapacity in the accused to form the intention to cause bodily injury sufficient
in the ordinary course of nature to cause death. The evidence established that he
was capable of moving himself independently and talking coherently as well. It
was also proved that he made a choice for his own suit and that was why he
asked the deceased to move away from his place. Further, the evidence was on
record that after shooting at the deceased he did attempt to get away and was
secured at some distance when he requested the witnesses to be forgiven so that
it happened from him.

6.4 SUMMARY
The Indian law on the subject of intoxication has been summed up thus:

1) Involuntary drunkenness, that is, drunkenness impairing cognitive faculties

where the accused is incapacitated to form a guilty mind is an excuse if
drunkenness caused is without one's knowledge or against one's will.
2) Voluntary drunkenness is an excuse only as regards 'intention' so that it is a
complete excuse in crimes requiring the presence of an 'intention' to complete
a crime.
'3) The voluntary drunkenness is no excuse for a crime which requires the
mere presence of 'knowledge' as distinct from 'intention'.
, 4) In any case though voluntary drunkenness is no excuse for knowledge, it
does not imply actual knowledge giving rise to the inference of presumed
intention.

The question whether a person wasdrunk voluntary or involuntary is a question

of fact to be decided upon the proved facts in the case. Sometimes, the facts
proved in a case may show that the intoxication was partly the result of voluntary
drinking and party involuntary. Take the case of a man who has proved to have
been drinking on his own accord. But when he is drunk, he is given by his friend
some more drink so that he loses his power of resistance. In such cases, the
question may arise as to whether it is to be treated as a case of voluntary or
involuntary drunkenness. It seems that the better view seems to be to hold it to
be a case of involuntary drunkenness. However, it has to be remembered as a
basic principle that it is only in those cases where it is proved that the accused
was in such a condition of a drunkenness that his reason was "dethroned" and
was incapable of forming any intention, that the defence of drunkenness would
be available. 2
2 In re Surutyyan, AIR 1954 Mad. 523, 526 Per Chandra Reddy J.
17
 General Defences
6.5 TERMIANL QUESTION
1) Differentiate between Section 85 and Section 86 of IPC

6.6 ANSWERS AND HINTS

••
Self Assessment Question
1) Refer to Section 6.3

Terminal Question
1) Refer to Section 6.3

18'
 UNIT 7 PRIVATEDEFENCE
Structure
7.1 Introduction
..
7.2 Objectives
7.3 Scope and Limitations of Right of Private Defence
7.4 Commencement and Continuation of Right of Private Defence
7.5 Right of Priavte Defence is Available only to the Defender and not to the
Offender
7.6 Burden of Proof
7.7 Indian Law does not Oblige an Accused to Retreat when Faced with
Aggression
7.8 Right of Pri va~e Defence of Property and Body when become Inseparable
.. 7.9 Summary
7.10 Terminal Questions
7.11 Answers and Hints

7.1 INTRODUCTION
The right of private defence is a valuable right and it is basically preventive in
nature and not punitive. It is available in the face of aggression when the state
help is not available. Section 96 of IPC does not define the expression 'right of
private defence'. It merely indicates that nothing is an offence, which was done
in the exercise of 'right of private defence'. Section 97 deals with the subject
matter of private defence, which comprises of right to protect the body or property
of (i) the persons exercising the right; or (ii) of any other person. The right may
be exercised against all offences affecting human body or attempt or reasonable
threat of commission of any such offence or offence of theft, robbery, mischief
,. or criminal trespass and attempts to commit any of such offences in relation to
property.'

7.2 OBJECTIVES
After reading this unit, you should be able to:

• discuss the scope and limitation of private defence;

• discuss when right of private defence commences and till when it continues;
and
• analyse on whom burden of proof lies.

7.3 SCOPE AND LIMITATIONS OF RIGHT OF

PRIVATE DEFENCE
The right of private defence of a person enunciated in the matter of its scope
under Section 97 IPC is expressly subject to the restrictions contained in the

I R. v. Wheat and Stocks (1921) 2 K.B. 119.

19
General Defences succeeding provisions more particularly Section 99. Section 99 lays down the
limits of this right of private defence. The three important limitations laid down
by Section 99 are:
i) That there is no right of private defence against the act of a public servant or
any person acting under his instructions if the act of the public servant or
the person acting under his instructions is bonafide and lawful though not
strictly justifiable in law and does not cause reasonable apprehension of
death or grievous hurt. It has been clarified that the person will not lose his
right of private defence if he does not know or has no reason to believe that
the person is a public servant or that the person is carrying out the instructions
under the directions of the public servant;
ii) That there is no time to have recourse to the protection of the public authority;
and
iii) That the accused must not use more force than is necessary in the exercise
of right of private defence.
Right of private defence is a right of defence, not of retribution. It is available in
face of imminent peril to those who act in good faith and in no case can right be
conceded to a person who stage-manages a situation wherein the right can be
used as a shield to justify an act of aggression. The right to punish for the
commission of offence vests in the state (which has a duty to maintain the law
and order) and not in private individuals.
The rights given in Sections 96 to 98 and Sections 100 to 106 are controlled by
Section 99. Sections 98 give right of private defence against certain acts of
persons whose acts are exempted from criminal liability. The right of private
defence extends to voluntarily causing of death subject to the limitations laid
down in Section 99 and other related provisions in respect of all offences against
human body enumerated in Section 100. The accused must show that there
were circumstances giving rise to reasonable grounds for apprehending
that either death or grievous hurt or any other offence enumerated under Section
100 would be caused to him and causing of death was necessary in such
circumstances. Similarly, death or grievous hurt can be caused by the defender
against certain offences of property as stipulated in Section 103 and the
circumstances stated therein. But it is to be remembered that merely because the
offence or an attempt to commit an offence mentioned either in Section 100 or
Section 103 were likely to be committed does not give rise to the causing of
death unless the accused is able to show that causing of death was the necessary
force needed to be used to defend the body or the property against the offences
enumerated therein, as the case may be.

In other words, the right of private defence extends to causing of death in

circumstances enumerated in Section 100 in respect of offences against human
body enumerated therein and in respect of property in respect of the offences
enumerated in Section 103 subject to the limitations of Section 99. The right of
private defence in respect of offences against human body other than those
enumerated in Section 100 extends to causing of any harm other than death
subject to limitations of Section 99.2 Similarly, right of private defence in respect
of offences of theft, mischief, criminal trespass which are not of any of the
descriptions enumerated in Section 103 extends to causing of any harm other
than death subject to limitations of Section 99.

20 2 R. v. Prince (1875) 2 C.C.R. 154.

 Private Defence
Self Assessment Question
1) Explain the limits within which right of private defence should be
exercised as per Section 99.
••

7.4 COMMENCEMENT AND CONTINUATION OF

RIGHT OF PRIVATE DEFENCE
Sections 102 and 105 deal with commencement and continuation of right of
private defence of body and property respectively. The right of private defence
of body commences,' as soon as, a reasonable apprehension of the danger to the
body arises from an attempt or threat to commit the offence, although the offence
may not have been committed and lasts till such reasonable apprehension lasts.'
If after sustaining, a serious injury there is no apprehension of further danger to
the body or property then obviously the right of private defence would not be
available. Similarly, right of private defence of the property commences when a
reasonable apprehension of danger to the property."

The right of private defence of property against theft continues till the offender
has effected his retreat with the property or the assistance of the public authorities
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 the criminal
trespass or mischief."

The right of private defence of property against housebreaking by night continues

as long as the house trespass which has been begin by such housebreaking
continues."

3 In re Ganpathia Pillai AIR 1953 Madras 936.

4 AIR 1956 SC 575.
5 R. v. Prince (1875) L.R. 2 C.C.R. 154.
6 AIR 1951 Orissa 284.
7 Chiranji v. State AIR 1952 Nag. 282.
8 Waryam Singh v. Emp. AIR 1926 Lahore 554.

21
 General Defences
Self Assessment Question
2) When does right of private defence against body commence?

..

7.5 RIGHT OF PRIVATE DEFENCE IS

AVAILABLE ONLY TO THE DEFENDER AND
NOT TO THE OFFENDER
It is well settled legal position that the right of private defence is available only
to a defender against an aggression when the protection of the state authority is
not available provided the same is exercised within the limitations prescribed in
Section 99 IPC and other related provisions. It is a settled legal position that no
aggressor can claim right of private defence. In Kishan v. State of M.P., the
Supreme Court held that the accused who was an aggressor was not entitled to
right of private defence. This decision was arrived at by the court in the following
factual matrix:

One 'D' went to the house of the 'B' while he was supervising foundation digging
near his house. D warned B to abstain from using bricks belonging to him. B
stated that he was using his own bricks which resulted in hot exchange of words
between them. D left and came back alongwith his other brothers who dragged
, B out of his house and started giving blows to him. B tried to get himself out of
their grip and picked up a kutai lying nearby. He gave three blows with weapon
to one of the brothers who fell on the ground and became unconscious. Thereafter
the appellant and his two remaining brothers caught held B. The appellant
snatched kutai from the hand of B and gave two or three blows on his head. B
fell down and died later on. The appellant was tried for the murder of B. He
pleaded right of private defence. The trial court opined that after B was in
possession of kutai there was a reasonable apprehension of grievous hurt in the
mind of the appellant. So when the appellant snatched kutai from the hand of
the B and struck him blows on his head, he was acting in exercise of right of
private defence. According to the Sessions Court, B was the aggressor. The
trial court held that although the appellant had no intention to kill B but his act
still amounted to culpable homicide not amounting to murder under Section 304
part II IPC but as he had acted in exercise of the right of private defence he was
not guilty of the offence and acquitted the appellant as also his eo-accused.
Disagreeing with the Sessions Court the high court in the appeal preferred by the
State against the judgement of the Sessions' court held that the appellant and his
eo-accused were the aggressors, B was not an aggressor so the appellant could
not claim to have beaten B in exercise of right of private defence. The high
court accordingly convicted him of the offence of murder under Section 302
22
 IPC. The Supreme Court dismissed the appeal of the appellant holding that the Private Defence
appellant and his brothers were aggressors who took law on their on hands and
pulled B out of his house and subjected him to punching and kicking. B tried to
escape from their grip, caught hold of the kutai and struck three blows on the
head of one of the brothers. B was then acting in exercise of right of private
defence. Therefore, he was not an aggressor. The appellant could not have claim
. to have beaten in exercise of right of private defence when he had none being
himself alongwith his brothers aggressor. The court accordingly upheld the
decision of the high court and dismissed the appeal of the appellant.

7.6 BURDEN OF PROOF

The burden of proof that the act in question was in exercise of right of private
defence with respect to both bodily offences as well as offence against property
is on the accused. In Rizan v. State of Chattisgarh, the Court observed that the
question whether a person acted in exercise of right of private defence is dependent
on the surrounding circumstances of the case. The Court also ruled that it is well
settled that it is not necessary for the accused to plead in so many words that he
acted in self-defence. If the circumstances show that right of private defence was
legitimately exercised, it is open to the court to consider such a plea. In a given
case the court can consider it even if the accused has not taken such a plea but
such a conclusion is discernible from the available material on record. Under
Section 105 of the Indian Evidence Act, 1872 the burden of proof is on the
accused, who takes the plea of self-defence to prove the same. He is not required
to call evidence; he can establish his plea by reference to the circumstances
transpiring from the prosecution evidence itself. The question in such a case
would be a question of assessing the true effect of the prosecution evidence, and
not a question of the accused discharging any burden. Where the right of private
defence is pleaded, the defence must be a reasonable and probable version,
satisfying the court that the harm caused by the accused was necessary for either
warding off the attack or for forestalling further reasonable apprehension from
his side. The burden of establishing the plea of self-defence would stand
discharged by showing preponderance of probabilities in favour of that plea on
the basis of material on record.

Self Assessment Question

3) On whom burden of proof lies as per Section 105 of Indian Evidence Act?

It cannot be stated as a universal rule that whenever there are injuries on the
body of the accused persons, a presumption can necessarily be drawn that they
had ccused injuries in exercise of their right of private defence. The defence has
23
 General Defences to further establish that the injuries so caused on the accused probabilises the
version of the right of private defence. Non-explanation of the injuries sustained
by the accused at about the time of occurrence or in the course of the altercation
is a very important circumstance. But mere non-explanation of the cause of those
injuries by the prosecution may not affect the prosecution case in all cases. This
principle applies to cases where the injuries sustained by the accused are minor
and superficial or where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy-that it far outweighs the
effect of the omission on the part of the prosecution to explain the injuries.
The courts have observed that a plea of private defence cannot be based on
surmises and speculations. In order to find whether the right of private defence
is available to the accused, the entire incident must be examined with care and
viewed in its proper setting. The injuries received by the accused to the imminence
of threat to his safety, the injuries caused by the accused and the circumstances
whether the accused had time to have recourse to the public authorities for
protection are all relevant factors to be considered.

In Riran, the Court held that the accused running to the house, fetching tabli and
assaulting the deceased are by no means a matter of course. These acts bore the
stamp of a design to kill and took the case out of purview of right of private
defence.

7.7 INDIAN LAW DOES NOT OBLIGE AN

ACCUSED TO RETREAT WHEN FACED
WITH AGGRESSION
It is also well settled legal position that the common law rule of retreat to the
wall has not been accepted by the Indian courts. The Supreme Court has held in
State of V.P. v. Ram Swarup that a victim, being in a place where he has right to
be cannot be expected to run a way or submit himself to aggression. He has a
right to face the aggression and use all force necessary to ward off the aggression.
But he has to be mindful that right of private defence is a right of defence, not of
, retribution, it is available in face of imminent peril to those who act in good
faith. This right in no case can be conceded to a person who stage-manages a
situation where the right can be used as a shield to justify an act of aggression.
If a person goes with a gun to kill another, the intended victim is entitled to act in
self defence and if he so acts, there is no right in the former to kill him in order
to prevent him from acting in self defence. While providing for right of private .
defence the penal code has surely not devised a mechanism whereby an attack
may be provoked as pretence for killing.

7.8 RIGHT OF PRIVATE DEFENCE OF

PROPERTY AND BODY WHEN BECOME
INSEPARABLE
Every person in possession of land is entitled to defend his possession against
anyone who tries to dispossess him by force. This right has been fully explained
in Dev Naraian v. State of U'P: In this case there was several legal proceedings
between rival parties with respect to both title and possession of some plots of
land. On a particular day there was a clash between the party of the accused and
24
 the party of the complainant. Both sides lodged reports with the police. The Private Defence
appellant was tried for the murder of one of the members of the complainant
party but was acquitted by the Sessions Court. The trial court after exhaustive
discussions on the evidence produced by the prosecution and defence came to
the conclusion that the possession of the disputed plot of land was undoubtedly
with the accused persons. The only further question which required determination '
by the trial court was if the complainant party had gone to the plot in question
with an aggressive design to disturb the possession of the accused person by
unlawful use of force and the accused person had exceeded his right of private
defence in beating and killing the deceased, a member of the complainant party.
According to the trial court the complainant party had actually gone to the plot
of land in question for the purposes of preventing the accused person from
cultivating and ploughing the said land. The trial court held that accused as
defenders were entitled to exercise of right of private defence and to inflict injuries
with spare against the aggressors who were carrying lathis. The trial court held
that the death caused was in exercise of right of private defence. The high court
on appeal by the State held that though the accused was entitled to right of private
defence but he had exceeded his right of private defence by inflicting serious
injuries causing death 'of the deceased by using spare as against lathi by which
only superficial injuries were caused. On this reason the high court convicted
the accused appellant of the offence under Section 304 IPC and sentenced him
to rigorous imprisonment for five years who appealed to the Supreme Court
against the judgement.of the high court. The Supreme Court held that the high
court had erred in law in convicting the appellant on the ground that he had
exceeded the right of private defence. The high court seemed to have overlooked
Section 102 IPC which makes it clear that right of private defence of the body
commences as soon as the reasonable apprehension of danger to the body arises
from an attempt of threat to commit an offence though the offence may not have
been committed and such right continues so long as such apprehension of danger
to the body continues. The court observed that the threat, however, must
reasonably give rise to the present and imminent and not remote or distant danger.
The right of private defence rests on the general principal that when a crime is
2I endeavour to be committed by force, it is lawful to repel that force in self-defence.
The court observed that the high court was wrong when it said that the appellantJ
accused could only claim the right to use force after he had sustained a serious
injury by an aggressive wrongful assault in a complete misunderstanding of the
law embodied in Section 102IPe. The court held that as soon as the appellant
reasonably apprehended danger to his body even from a real threat on the part of
the complainant party to assault him for the purposes of forcibly taking possession
of the plots in dispute or obstructing threat of cultivation, he got the right of
private defence and to use adequate force against the wrongful aggressor in
exercise of that right. The court held that there could be little doubt that on the
conclusion of the courts below that the party of the complainant had deliberately
come to forcibly prevent or obstruct the possession of the accused persons and
that this forcible obstruction and prevention was unlawful. The appellant could
reasonably apprehend imminent and present danger to his body and to his
companions. The complainants were clearly determined to use maximum force
to achieve their end. He was, therefore, justified in using force to defend himself
and if necessary for averting peril to his companions. Merely, because the
complainant party had used lathis could not beheld against accused appellant
for not using his spare. Lathi can be used to cause severe injury and, therefore,
it is wrong to say that use of spare was unreasonable. When faced with grave 25
General Defences aggression should accused appellant could not be expected to coolly way, as if in
golden scales and calmly determine with the composed mind as to what precise
kind and severity of blow would be legally sufficient for effectively meeting the
lawful aggression. The court held that the view of the high court was not only
unrealistic and unpractical but also contrary to law. The court held that the accused
appellant had not exceeded his right of private defence.

7.9 SUMMARY
This right is available for the protection of one's own body or body of any other
pets on or one's property or the property of any other person in the face of an
aggression with respect to body or property against enumerated offences. Indian
law on right of private defence does not require that the defender must be related
to the person whose body or property is subject matter of aggression. It gives
right to everybody to defend anybody's and everybody's body or property against
offences for which right of private defence is provided there is no time to take
recourse to the protection of the public authorities and the force used is not more
than what is necessary to protect the body or property- of a person.

7.10 TERMINAL QUESTIONS

1) Discuss in detail Sec. 97 of IPe alongwith Sec. 99 of IPe.

2) Discuss with judicial pronouncements that right of private defence is

available only to the defender and not to offender.

7.11 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 7.3

2) Refer to Section 7.4

3) Refer to Section 7.6

Terminal Questions

1) Refer to Section 7.3

2) Refer to Section 7.5

26
UNIT 8 OTHER DEFENCES
Structure
8.1 Introduction ..
8.2 Objectives
8.3 Mistake under Indian Law
8.4 Illustrative Cases
8.5 Legal Compulsion
8.6 Legal Justification
8.7 Summary
8.8 Terminal Questions
8.9 Answers and Hints

8.1 INTRODUCTION
Under the category of excusable defence one of the important defence is mistake
of fact in good faith as a 'general defence'. It may be stated at the outset that
mistake of law is in no circumstances a defence available either under common
law or under the Indian Penal Code. Further, it is not every mistake of fact but
only mistake of fact in good faith that furnishes a complete defence under common
law as well as under the Indian Penal Code under Sections 76 and 79. The
justification for mistake of fact in good faith is that when a person is ignorant of
the existence of relevant facts, or is mistaken as to them, his conduct may produce
harmful results which he neither intended nor foresaw.

By defence of mistake of fact in good faith what has attempted is to prove the
absence of mens rea. In other words, mistake negatives the existence of a
particular intent or of that foresight which in law amounts existence of mens rea
to make the accused liable for his act accompanied by the requisite mens rea. As
stated above, the mistake has to be a reasonable mistake. In other words, the
mistake should be a bonafide mistake, a mistake which the accused believe in
good faith. This can be illustrated by taking the example where the husband
discharged gun he had taken with him and set it up in a private place in his
friend's house before taking dinner. On his return in the evening the wife carried
the supposedly empty gun and it was put in her room. The husband taking it up
touched the trigger and the gun went off which killed his wife. It appeared that
some one in his friend's house had found the empty gun and taken it out for
shooting and had afterwards returned it loaded to the place when she took it. He
was acquitted of the charge of murder on the ground that he had reasonable
grounds to believe that it was not loaded. In other words, the defence set up by
the accused was, in fact, that he had no mens rea, because he did not realise that
to handle the gun as he did would expose any person to the risk of injury.

8.2 OBJECTIVES
After reading this unit, you should be able to:
• discuss the law relating to plea of mistakes as a defence; and
27
General Defences • Analyse the common law maxim which states that ignorance of fact can be
an excuse but ignorance of law can never be an excuse.

8.3 MISTAKE UNDER INDIAN LAW

Sections 76 and 79 of the Penal Code provide the law relating to the plea of
mistake as a defence. A close study of these two provisions reveals that two
points which distinguish between the two provisions, namely, under Sections 76
the person believes himself to be bound by law to do a thing, while as under
Section 79 he feels justified by law in doing it; secondly, under Section 76 he
acts because he believes he must act, under Section 79 he acts because he thinks
he is justified in acting so. However, in both cases the quality and the extent of
protection is the same. Both these Sections have in common the words "by reason
of a mistake of fact and not by reason of mistake of law in good faith". These
words are, in fact, a paraphrase of the English common law maxim known to
criminal law: ignorantia facti excusat, ignorantia juris (legis) non (neminem)
excusat, which mean that ignorance of fact excuses, ignorance of law does not
excuse. A mistake of law is never accepted as a defence in actions, whether civil
or criminal. The basis of this rule is said to be another maxim of law of evidence
namely, "every man is presumed to know the law." The justification for attributing
every person knowledge of law is primarily administrative convenience as
otherwise a chaotic condition will arise in society with the prosecution is required
to prove the knowledge of law by the accused. It is sometime said that by
presuming that everybody ought to know the law howsoever ambiguous the law
may be it amounts to a confession that justice may be sacrificed to the exigencies
of administration and that economy of time of the judge is preferred to justice. A
mistake in order to be an excuse may be due to the imperfection of senses or it
may be due to deficiency of intellect, where for example a man kills another
believing him to be a ghost, or a hunter mistakes a man to be an animal and fires,
his mistake may be as much due to defective vision as to defective intellect. In
either case, if there was no mens rea, there was a mistake and, therefore, the act
may not amount to a crime. The maxim "ignorance of fact is an excuse" is subject
to two reservations, namely, first, no one is allowed to plead ignorance of fact,
when responsible inquiry would be elicited the true facts. For instance, a woman
hears a rumor that her husband is dead. She makes no inquiry whether the rumor
is true or false and marriages again. It is afterwards found out that the rumor was
false. This belief carelessly entertained cannot be pleaded as an excuse ona
charge of bigamy. So also if a person goes through a ceremony of marriage after
a decree nisi of dissolution of his first marriage has been pronounced but before
it has been made absolute, he honestly believes that his first marriage has been
dissolved; nonetheless, he is guilty of bigamy.' Then again, A abducts B, a girl
under fifteen years of age, out of the guardianship of her father without his consent.
He believes that she is above the age of fifteen, but does so without making any
inquiry, basing his belief on mere appearance which was deceptive. He also
held guilty of kidnapping under English Law which would also amount to
kidnapping under Section 361 of the Indian Penal Code? . This mistake will not
save him because it was not done after responsible inquiries. Secondly, mistake
of fact is not accepted as a plea at all, when the act is penalized by a statute
without reference to the mind of the wrongdoer. For example reference may be
made here by building bye-laws which impose strict liability.
I R. v. Wheat and Stocks (1921) 2 K.B. 119.
28 2 R. v, Prince (1857) 2 c.c.a, 154.
 Other Defences
Self Assessment Questions

1) What do you mean by "Ignorantia facti excusat, ignorantia juris neminem

excusat"?

..

................................................................................................................
2) What is the distinguishing point between Section 76 and Section 79 of
IPC?

8.4 ILLUSTRATIVE CASES

The illustrative cases of mistake of facts in good faith may be that a student on
a rainy day takes one.of the umbrellas which he believes was his from the stand
of his college where students deposits their umbrellas. The fact of the matter is
that the umbrella which he took was not his but some other student. He is not
liable for stealing because of mistaken belief in good faith. Though, there was
actus reus but no mens rea. Then again, A fires a bullet into a bush where,
unknown to him, P is lying hid and the bullet kills P. It is true that A fired
intentionally into the bush, but he is not liable as he did not fire intentionally at
P believing that there would have no human being behind the bush in a jungle.
Mere superstitious belief will not be excused. So also, some men caused the
death of the wife of one of them by holding her over a fire and scaring her with
a red hot poker in the honest expectation of thereby exorcising a demon that
was supposed to possess her. They were held guilty of the offence, because
their belief that they were obeying a divine command was regarded as actuated
by a mistake which was unreasonable.
Both under Sections 76 and 79 ofthe IPC, the term 'good faith' has been used in
order to make a mistake of fact to be a complete defence. Section 52 of the IPC
defines 'good faith' negatively when it says that nothing is said to be done or
believed in good faith which has done or believed without due care and attention.
It does not define good faith but states what it is not. The positive definition of
the term is furnished by Section 3(2) of the General Clauses Act, 1897 thus:
A thing shall be deemed to be done in good faith, where it is, in fact, done
honestly, whether it is done negligently or not.
The distinction between positive and negative definitions of 'good faith' is well
D~:nll~htout by Ramaswamy 1.3:
3 In re Ganp.rhia Pillai AIR 1953 Madras 936 29
General Defences Section 52 makes no reference to moral elements of honesty and right motive,
which are involved in the popular significance of good faith and which are
predominant in the positive definition enacted in other Acts of the legislature,
for example, the General Clauses Act, 1897. While an honest blunderer acts in
good faith within the meaning of the General Clauses Act, an honest blunderer
can never act in good faith within the meaning of the Penal Code for being
negligent. Good faith according to the Penal Code does not require logical
infallibility but due care and caution which must in each case be considered with
reference to general circumstances, the capacity and intelligence of the person
whose conduct is in question.

The definition of 'good faith', given under Section 52 of the Penal Code, is the
keynote of all the Sections wherein this term occurs. It is important to state here
that the term 'good faith' defined under the General Clauses Act applies to civil
cases, not to criminal cases where the definition given under Section 52 will
apply. Under the definition given in the General Clauses Act, an honest blunderer
acts in good faith, but he can never be said to have done so within the meaning of
Section 52, as for being negligent he has not acted with due care and caution.
Thus, it becomes clear that the approach in the two definitions is different and
there is nothing common between them. The general definition condones
carelessness and negligence only if there was honesty, while the Penal Code
regards honesty as immaterial and the presence of care and attention is paramount
in the Code. In this respect it may be said that the definition under the Code
closely corresponds with the notion of "reasonable and probable cause", or
"reasonable and justifiable cause" known to English criminal law.

The question of good faith is always a question fact to be determined according

to the proved facts and circumstances of each case. It would vary with the
competence of the accused, his education, his skill and the circumstances in
which he was placed. The court has to see that, circumstanced as he was, whether
he has exercised the "care and attention" which was expected of him.

Illustrative cases: A butcher unskilled in surgery, employed to set a bone on

board of a vessel on the high seas, would be judged by a very different standard
than a qualified surgeon discharging the same duty. So also, a surgeon working
in his operation theatre would be judged by a different standard than a surgeon
working in the field. But where a quack unskilled in surgery performs an operation
which even a trained surgeon seldom dares, he could not be said to have acted in
good faith. if his patient trusting him, succumbs to his operation.

8.5 LEGAL COMPULSION

Section 76 deals with cases of legal compulsion. It deals with cases in which a
person acts under the belief that he is bound by law to act. Thus, in the case of a
soldier the Penal Code does not recognise the mere duty of blind obedience to
the commands of the superior as sufficient to protect him from penal consequences
of his act. However, in certain circumstances, a soldier receives absolute
protection under Section 132 of the Code of Criminal Procedure, 1973 which
protects him from criminal prosecution, except with the sanction of the Central
Government if the person has acted under Chapter X of the Code of Criminal
Procedure in dispersing unlawful assemblies, provided such officer has acted in
good faith and the soldier has acted in obedience of an order which he was
30
bound to obey. For illegal acts, neither the orders of the parent nor the master Other Defences
nor the superior will furnish any defence. In such cases, nothing but fear of
instant death is a defence for a policeman or any other person who tortures any
one by order of his superior. The maximum respondent superior has no application
to such a case. However, obedience to an illegal order may be pleaded in
mitigation of punishment but cannot be availed of as a complete defence. Private ••
persons who are bound to assist the police under Section 42 of the Code of
Criminal Procedure will also be protected under this Section.

8.6 LEGAL JUSTIFICATION

Legal justification is provided for in Section 79 of the Penal Code. This Section
protects notonly acts justified by law but also those acts which are justifiable.
The law, in other words, the Section grants protection to cases in which a person
acts in the belief that his act is justified by law but which it is not. The term law
is wider and the law has to be understood in the wider context to include written
and unwritten or customary law and even bye-laws and rules and regulations in
force. The Supreme Court in Jaswantrai Maniklal Akhaney v. State of Bombay
has observed that in considering whether Section 79 can be availed of by the
accused, the important thing to consider is the mental attitude of the accused and
the Section will apply only if the court is satisfied that he made a mistake of fact
after taking due care arid caution. There are five invaluable rules which have
been the guidelines inEngland and elsewhere whenever the question of
justification of an offence, either due to mistake of fact or mistake of law, arises.
These rules were laid down in an English case' , quoted in The King v. Tustipada
Mandalr by a bench of fifteen judges. The accused, a police constable, saw the
complainant early one morning carrying under his arm three pieces of cloth.
Suspecting that the cloth was stolen, he went to the complainant and questioned
him. The complainant's answers were not satisfactory. So the constable wanted
to inspect the cloth which was refused by the complainant and a scuffle thereupon
ensued between the two. The constable then arrested the complainant then
prosecuted the constable for wrongful restraint and confinement. The magistrate
convicted the constable of the said offence. On an appeal the High Court held
that the conviction was wrongful as the constable acted under a bona fide belief
that he was legally justified in detaining what he suspected to be stolen properly.
The putting of questions to the complainant to clear up his suspicious was an
indication of good faith. He was, therefore, protected under Section 79 of the
Penal Code. Similarly, where an accused owing to a defect in his vision and the
effect of a fall bona fide believed his son, whom he loved dearly, to be a tiger and
caused fatal injury with an axe in a moment of delusion, it was held that he was
protected under this Section as his act was done under a bona fide mistake and
so he could not be convicted of an offence of murder". So also the accused who
believed in good faith that the object of assault was not a human being at all but
a ghost and thus caused fatal injuries to him, resulting in his death, was protected
by the provisions of this Section". It may be observed that the protection applies
as much as to the offences under this act as also those under a local or special
law.
4 AIR 1956 se 575.
5 R. v. Prince (1875) L.R. 2 C.C.R. 154.
6 AIR 1951 Orissa 284.
7 Chiranji v. State AIR 1952 Nag. 282.
~ W(l!},am Singli v. Emp. AIR 1926 Lahore 554.
31
 General Defences Similarly, under Chapter IV, executive and judicial acts are also immune from
criminal liability. Sections 77 and 78 extends to judicial officers and their
ministerial officers for anything done by them in exercise of the power given by
law and those acts which they perform believing in good faith that they are given
such powers. As in England was also in India if the judge is acting within the
jurisdiction, he enjoys an absolute immunity from civil or criminal actions in
respect of his acts done. If a judge acts without his jurisdiction, he is not protected
unless he had acted- bona fide. The protection of the ministerial officers is
necessary as protection of ministerial officers is very necessary because protection
of judicial officers would be inadequate and incomplete, though enjoying personal
immunity, they may be attacked through their ministerial officers who have acted
in obedience to their commands. A close study of Section 78 of the Penal Code
will reveal that the two requisites of an exemption from criminal liability are,
namely, first, good faith, and secondly, belief in the legality of the order. Mistake
of law may, therefore, be a good defence under this Section, because in believing
that an order issued was legal, a person may be misled by a mistaken view of law
as much as by a mistaken view of facts.

8.7 SUMMARY
"Every man is presumed to know the law" thus says law. The justification for
attributing every person knowledge of law is primarily administrative convenience
as otherwise a chaotic condition will arise in society. Section 76 and 79 of IPC
provide the law relating to the plea of mistake as a defence, the only difference
between the two Sections is that, white under Section 76, the person believes
himself to bound by law to do, while under Section. 79 he feels justified by law
to do, while Section. 76 deals with legal compulsion, Section 79 deals with legal
justification.

8.8 TERMINAL QUESTIONS

1) Expain with case laws in what circumstances can a person take the plea of
, Section 76 as defence.

2) What is Section 77 and 78 of IPC?

8.9 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 8.3

2) Refer to Section 8.3

Terminal Questions
1) Refer to Sections 8.3 and 8.5

2) Refer to Section 8.6

32
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SOUIGNOUIP.O.2T/February-2011

ISBN-978-81-266-S098-9