Criminal Law consists of categorically two elements; mens rea and actus rea. Derived from the Latin maxim actus non facit reum nisi mens sit rea; while mens rea denotes a guilty mind, actus reais the guilty act. The concept of the general exceptions provided under Chapter IV of the Indian Penal Code, 1860 is based on the absence of a guilty mind i.e. mens rea. A mens rea requirement distinguishes individuals who break the law only accidentally or inadvertently from ones who do so wantonly, with only the latter being held criminally responsible for their actions.1 Hence, the provisions prescribed under general exceptions are defences provided by law to escape criminal liability. Sections 76 to 106 of the Indian Penal Code, 1860 specifically furnishes for such defences.
Excusable and Justified Defences
General exceptions can be further classified into two types of defences; excusable and justified defences.
- Excusable Defences
As the name suggests, these defences indicate to acts which are excusable under the law which implies that even though the wrongful act took place, there existed no criminal intent. Excusable defences include:
- Mistake of fact (S. 76 & 79)
- Accident (S. 80)
- Infancy (S. 82 & 83)
- Insanity (S. 84)
- Intoxication (S. 85 & 86)
Illustration: A child of 5 years was playing with a knife and in the process ended up grievously injuring her neighbour. A child of 5 years has not developed adequate maturity and was merely playing with the knife, not knowing it to be dangerous with a possibility of causing harm. The child will not be held liable as under S. 82 of the Indian Penal Code, 1860; an act of a child below seven years of age is not an offence.
- Justified Defences
Justified defences on the other hand are wrongful acts which are justified or reasoned due to the circumstances. Justifiable defences include:
- Judicial Acts (S. 77 & 78)
- Necessity (S. 81)
- Consent (S. 87-89 & 92)
- Communication (S. 93)
- Trifle Acts (S. 95)
- Duress (S. 94)
- Private Defence (S. 96- 106)
Illustration: X, a surgeon tells A who is his patient that he doesn’t have any chance of survival. On listening to this, A, dies of shock. X will not be liable as the communication was made in good faith.
General Exceptions
Mistake of Fact (S. 76 & 79)
“Ignorantia facti doth excusat; ignorantia juris non excusat”
The general exception of mistake of fact is based on this legal maxim which means ignorance of fact is an excuse, but ignorance of law is no excuse. S. 76 of the Indian Penal Code, 1860 states, an act committed by a person who bound by law or by mistake of fact believes himself to be bound by law in a bona fide manner, such an act will not be an offence.
Illustration: If a police officer arrests X believing him to be Y without reasonable doubt, the police officer has committed no offence.
While S. 79 similar to the above states that any person who is justified by law or believes himself to be justified by law by mistake of fact commits an act which is an offence, all in good faith, such an act will not be deemed to be an offence.
Exception: Mistake of fact will not be a defence when the act committed is illegal. If A kills B believing him to be C with the intention of murder, the defence of mistake of fact between the identity of B and C will not be a defence.
Case:State of West Bengal v. Shew Mangal Singh& Ors.2
Death of two persons occurred due to an open fire by policemen who had fired under the order of their superior authority. The Supreme Court dismissed the SLP on the ground that police officer was only obeying the orders of the Deputy Commissioner of open fire and hence cannot be convicted.
Judicial Acts (S. 77 & 78)
Sec. 77 and 79 of the Indian Penal Code, 1860 grants immunity; while S. 77 covers an act done by a Judge in his or her bona fide judicial capacity, S. 78 talks about an act done following any judgement or order of the Court will not be counted as an offence even if the Court may not have had any jurisdiction to pass such an order or judgement but the person committing the act believes in good faith that the court had had such a jurisdiction.
Illustration: A judge cannot be held guilty of murder for granting a death penalty.
Case: Megh Raj v. Zakir3
The Allahabad High Court held that any person acting judicially within the limits of his jurisdiction, discharges his official duty will be liable for an act done or ordered. And in such a situation, the question of good faith is irrelevant and will not arise till the judge acts without jurisdiction.
Accident (S. 80)
Any act which is; an accident, done without criminal intent, or with knowledge while doing a lawful act in a lawful manner with lawful means and proper care and precaution will not be an offence under the said act.
Illustration: M is working with an axe; while working, the head flies off and hits a man thereby killing him. If proper care and precaution was taken by M, his act will excusable and not be an offence.
Case: Shakhir Khan v. Crown 4
A group of men went out to shoot pigs. A boar went towards the accused who as a result fired at the boar; the bullet missed the boar and hit a member of the group instead which resulted in death. It was held that the death was caused by accident and not by negligence and or rash shooting by the accused.
Necessity (S. 81)
Any act done in necessity, with the knowledge of the act causing harm or any act done without criminal intention to cause harm, done to prevent any other harm will not be an offence.
Illustration: X, due to a fire, pulls down houses to prevent the fire from spreading. He does this with the intention of saving human life and property. The harm was done to prevent a greater harm; X is not guilty of the offence.
Case: R v. Dudley and Stephen 5
Three adults and one minor were on a boat in the high seas during a storm, they ran out of water and food after sailing for a few days. After 18 days Dudley suggested to sacrifice the minor boy to which Brooks refused. On the 20th day Dudley and Stephen without the consent of Brooks killed the boy. All three fed on the boy as they would not have survived otherwise. It was held that there was no such necessity which justifies murder.
Infancy (S. 82 & 83)
Sec. 82 and 83 of the IPC deal with act of children. S. 82 constitutes all acts done by a child of under seven years to not be an offence. S. 83 in comparison particularly talks about acts done by a child above seven years or age but below twelve years of age who is of immature understanding or has not yet attained sufficient maturity.
Illustration: A child of 5 years pockets a ring from a jewellery shop, not knowing it amounts to theft; the child would not be guilty of an offence.
Case: Ulla Mahapatra case6
A boy of 11 years threatened to cut the deceased into pieces and then pursued his murder. It was held that he had the knowledge and his actions lead him to what he intended to do.
Insanity (S. 84)
An act done by a person who at the time of doing the act, due to unsoundness of mind cannot ascertain the nature or degree of act done or that the act is in itself unlawful, such an act will not be an offence under S. 80.
Illustration: Z is of unsound mind. Not understanding the nature and degree of his act, attempts to kill A; Z is guilty of no offence.
Case: Sudhakaran v. State of Kerela 7
The accused pleaded unsoundness of mind by stating that he was suffering from paranoid schizophrenia. The accused killed his wife but not his child and further insured proper care of the child. It was held that the burden of proof lies on the accused that he was suffering from unsoundness of mind during the time of committing the offence and in this case the mental illness was determined only after the incident. His conviction for murder was held to be proper.
Intoxication (S. 85 & 86)
No act will be an offence under S. 85 if done under the influence of intoxication, where the person was not capable of determining the nature of the said act.
Exception: The person should have been intoxicated without his or her knowledge or against his or her will.
Sec. 86 on the other hand states, an intoxicated person will not be liable if the person unless the person had knowledge or intention of committing the act under the influence of intoxication.
Illustration: X is intoxicated. She possesses a knife and shouts that she will kill C. Instead kills A, a passer-by. X will be guilty of murder as she got drunk voluntarily and will be liable for her acts as if she was sober.
Case: Dasa Kandha v. State of Orissa 8
The plea of the accused that his offence be treated has culpable homicide not amounting to murder as he could not have formed the intention of murder under the intoxication of liquor was not accepted.
Consent (S. 87-89 & 92)
Sec. 87 states for any act done with consent, which is not done with the intent or knowledge that such an act may cause death or grievous injury to not be an offence provided that the person giving the consent (express or implied) is above 18 years of age and has suffered harm.
Sec. 88 states no act done in good faith for the person’s benefit and with the consent (express or implied) of the person will be an offence if the act causes or is likely to cause harm to the person.
Sec. 89 provides for the exception where no act which causes harm or is likely to cause harm to a child of under 12 years or an insane person, which is either done with the consent (express or implied) of the guardian or in good faith or for the benefit of the child or insane personwill be an offence.
Exception:
1. An act which intentionally causes death or attempts to cause death.
2. If knowledge of death exists or if the act is done for a reason except for preventing or curing death, grievous injury or infirmity.
3. If harm or grievous injury is caused intentionally or voluntarily except for a reason of preventing or curing death, grievous injury or infirmity.
4. Abetment of any offence.
Sec. 92 states, an act will not be an offence even if the said act is done without consent provided that the act is done in good faith or for the benefit of the person and the person was either unable or incapable to give consent or it was not possible to attain consent from the guardian of the person in question. S. 92 hold the same exceptions as S. 89.
Illustration: M and N want to fence with each other and agree to do so. As there is a possibility of harm, the agreement between M and N implies the consent to suffer any harm in the course of fencing. If M, while playing fairly, hurts N, M commits no offence.
Case: Poonai Fattemah Case 9
The accused, a snake charmer persuaded the deceased to allow himself to be bitten by a poisonous snake inducing him to believe the snake had the power to protect him. It was held that the consent arose out of misrepresentation and the deceased gave consent under such misconception.
Communication (S. 93)
Any communication made in good faith will not be an offence if it is made in benefit of the person even if it causes harm.
Duress (S. 94)
Any act which was committed by a person who was compelled to commit it by the way of a threat which may cause apprehension of an instant death provided that the person did not commit the act on his or her own accord or from an apprehension of harm to himself which is not of instant death will not be an offence.
Exceptions: Murder and offences against the state punishable by death.
Illustration: A is seized by a gang of dacoits and is forced by way of threat of instant death, to commit theft. A will have not committed an offence.
Case: Bachchan Lal v. State11
The accused was under the threat of instant death when he held the legs of the deceased and helped in removal of the body and concealing it. It was held that his actions took place under the threat of instant death.
Trifle Acts (S. 95)
“De minimis non curat lex”
This maxim means, the law does not take account of the trifles. If any harm, so slight, it wouldn’t result in an ordinary person complain, will not be an offence under this section.
Illustration: X and Yare travelling in the same compartment on a train, X of them lights his cigar from Y’s match box without Y’s permission. Y would not file a complaint for the same.
Case: Bichittranand v. State of Orissa 10
The accused had stored for sale mustard oil. The quality of mustard oil was only said to be slightly inferior to the purity standard, the variation was urged to be only slight. The plea was rejected.
Private Defence (S. 96- 106)
Sections 96 to 106 furnish the right to private defence, which is not an offence under the Indian Penal Code, 1860. Each and every person has a right to defend his own or any other person’s body from any harm or his or any other person’s property from harm under situations such as theft, robbery, mischief or criminal trespass or an attempt to commit theft, robbery, mischief or criminal trespass. The right of private defence cannot be extended to inflicting harm which is more than necessary for the purpose of defence.
Illustration: X enters his house at night. Z, in good faith, assumes X to be a thief and attacks X. Here Z, by attacking X under this misconception, commits no offence.
Case: Chacko v. State of Kerela 12
The deceased arrived the scene with a chopper with the thought that his brother was in trouble with assailants. It was held that no aggressor can claim the right of private defence merely on the defence that the person was armed.
Frequently Asked Questions
1. What is the applicability of the general exceptions?
The general exceptions are only applicable as a defence to the offences provided under the Indian Penal Code, 1860 specifically.
2. Who holds the burden of proof?
The burden of proof is on the defendant. S.105 of the Indian Evidence Act states that if a person desires to avail any of the exceptions, he must prove that his case falls within any of the exceptions.
Illustration: Z is accused of murder. She alleges that she committed the murder due to unsoundness of mind. The burden of proof will lie on Z, that she was of unsound mind while committing the offence.
3. What are the essentials for an act to fall within the ambit of S. 80?
80 of the Code lays down the general exception of accident. In order for an act to be justifiable on the ground of accident, following essentials must exist–
a. There was an accident.
b. There was no criminal intention.
c. The accident was an outcome of a lawful act, which must have been done in a lawful manner by lawful means with proper care and caution.
4. What may be the outcome if private defence leads to death?
100 and 103 of the Indian Penal Code, 1860 deal with death due private defence in case of person or property respectively.
100 of the Code states, the right of private defence of body by way of causing death is excusable under restrictions. Which are;
a. An assault which causes the apprehension of death.
b. An assault which causes the apprehension of grievous hurt.
c. An assault for commission of rape.
d. An assault for gratifying unnatural lust
e. An assault for commission of kidnapping or abducting.
f. An assault for confining a person,
g. An act or attempt of throwing or administering an acid attack.
103 of the Code states, the right of private defence of property by way of causing death which also has restrictions, namely;
a. Robbery
b. Housebreaking at night.
c. Mischief by fire on any building, tent or vessel, which is a human dwelling.
d. Theft, mischief, or house-trespass which causes apprehension that death or grievous hurt.
5. Which persons can be said to be of unsound mind?
A person of unsound mindcan include:
- An idiot: A person of infirmity from birth, without lucid intervals.
- A person made incapable by illness.
- A lunatic: A person who may be afflicted by unsoundness of mind only at certain periods.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
References
1. Paul Larkin Jr., Jordan Richardson and John-Michael Seibler, The Supreme Court on Mens Rea: 2008–2015, ( July 28, 2019, 7:05 PM), https://www.heritage.org/courts/report/the-supreme-court-mens-rea-2008-2015#_ftn4
2. State of West Bengal v. Shew Mangal Singh & Ors.,1981 AIR 1917
3. Megh Raj v. Zakir, 1 All. 280
4. Shakhir Khan v. Crown, AIR 1931 Lah. 54
5. R v. Dudley and Stephen, (1884) 14 Q.B.D 273
6. Ulla Mahapatra case, 1950 Cut. 293
7. Sudhakaran v. State of Kerela, (2011) I Cr. LJ 292 (SC)
8. Dasa Kandha v. State of Orissa, 1976 Cr. LJ 2010
9. Poonai Fattemah Case, (1869) 12 W.R. (Cr.) 7
10.Bichittranand v. State of Orissa, 1978 Cr. LJ 1050
11. Bachchan Lal v. State, AIR 1957 All. 184
12. Chacko v. State of Kerela , 2001 Cr. LJ 146 SC
