The Indian Penal Code provides for a well-framed scheme of General Defences under Chapter IV of the Code. Chapter IV of the Code deals with ‘General Exceptions’. This Chapter exempts certain acts from criminal liability. Therefore, the acts which are covered under this Chapter are not considered as punishable offences.
Scheme of General Defences
The basis of criminal liability is dependant on the maxim “Actus Non Facit Reum Nisi Mens Sit Rea”, which means an act committed is not considered as criminal act unless there is a guilty mind. Therefore, along with the action, the person accused should also have a guilty mind. Under certain circumstances, the guilty mind of the accused will be absent and the action will not be a result of any mental element. The Code thus provides exceptions in cases where the accused possessed no guilty mind. The exceptions provided under Chapter IV, therefore, are the defences which an accused shall plea before the court to relieve him of such accusations.
In the case of Emperor v. Musammat Anandi[i], upheld the provision of presumption under section 105 of the Indian Evidence Act, 1872. But further held that, if it is apparent from the evidence on record that a general exception is applicable in the case, then the presumption against the accused is immediately removed and it is open to the court to consider the evidence as to the proof of the general defence claimed.
Sections 76 to 106 under Chapter IV of the Indian Penal Code provides for general exceptions and these can be divided into two categories-
1. Excusable defences
2. Justifiable defences
Excusable are those which are the acts excused from criminal liability. Excuse is provided in certain cases where the accused was not possessing any inferable guilty mind at the time of commission of the act where the offence required the existence of mental element to complete the commission of crime. Therefore, the accused is excused from being punished for the act.
The exceptions which cover excusable defences are-
- Mistake of fact- (Sections 76 and 79)
- Accident- (Section 80)
- Infancy- (Sections 82 and 83)
- Insanity-(Section 84)
- Intoxication- (Section 85)
Mistake of Fact-
Sections 76 and 79 provides for two different circumstances under which mistake of fact can be pleaded as a defence. Section 76 provides for a defence where the accused has committed an act but he believes in good faith as a reason of mistake of fact that he is legally bound to commit such an act. In the case of Section 79, the defence is available where the accused believes in good faith as a reason of mistake of fact that his act is legally justified.
The Supreme Court in the case of State of West Bengal v. Shew Mangal Singh[ii], held that, in sections 76 and 79 if the subordinate as a mistake of fact has committed any illegal act in order to follow the orders of the superior, he would get the benefit of superior order. But these provisions cannot act as complete defence and shall only mitigate the punishment as the subordinate has shown obedience to an illegal order.
Accident in doing a lawful act is excused under section 80. Such an act is excused in the absence of criminal intention to commit it. Where the accused has caused injury to other persons without possessing any criminal intention or knowledge of committing such an act, the court will consider such commission as an accident, if neither wilfully nor negligently the accused has caused such injury[iii].
Section 82 covers the defence provided in case of any offence committed by a child under seven years of age as it is considered the child under seven years of age in mentally incapacitated to be held criminally liable. Further, section 83 provides for excuse from criminal liability if the offence is committed by a chile above seven years of age and under twelve years, but has not attained sufficient maturity to understand the consequences of the act committed.
Section 84 covers the defence in cases where the accused is said to be non compos mentis which means the accused was not of sound mind at the time of commission of crime. The provision under section 84 provides defence for a person who is mentally incapacitated to be held for criminal liability as the person is incapable of knowing the nature and consequence of the act. The kinds of unsoundness of mind considered under section 84 are-
(1) An Idiot who is not sane from his birth
(2) A person who is not of sound mind due to illness
(3) A lunatic who is having unsoundness of mind at certain periods.
Section 85 is a provision which can be considered as an extension to section 84. Intoxicated state of mind is also a kind of non compos mentis. If the accused is incapable of knowing the nature and consequence of the act at the time of commission and the reason for such incapacity is intoxication, then he is excused from criminal liability.
Justifiable defences are those which are provided in cases where the act of accused is justified under the law. Under normal circumstances, such acts are considered as offences, but in certain specified circumstances the same acts are considered tolerable and non-punishable. Those acts which are accepted only in specific circumstances are pleaded as justifiable defences.
The exceptions which cover justifiable defences are-
- Judicial act- (Sections 77 and 78)
- Necessity- (Section 81)
- Consent- (Sections 87, 88, 89 and 92)
- Duress- (Section 94)
- Communication- (Section 93)
- Trifles- (Section 95)
- Private defences- (Sections 96 to 106)
Section 77 is a defence available to the judges while acting judicially and believing in good faith that such power is given to him by law. This provision thus acts as a protection to the judges from the criminal process. Section 78 provides for a defence to a person who has committed an act in pursuance of judgment or order of a Court of Justice. This is a special provision where the mistake of law can be pleaded as a defence to a certain extent.
Section 81 provides defence in cases where a person has caused harm in order to prevent such harm or to avoid such harm to person or property. The situation demands for such an act by the accused as a necessity and hence, the act is justifiable as the accused did not possess any criminal intention to commit the act.
The provisions which considers consent as a defence are based on the maxim volenti non fit injuria, which means he who consents suffers no injury. The consent can be express or implied. The provisions providing this defence are majorly used to justify the act in cases of medical negligence, where the surgery or treatment was done with the consent of the patient by the doctor.
Section 94 exempts a person from criminal liability if he has committed the act under threat. But this section does not provide protection where the offences are murder and against State. This exception is given because no one can plead the excuse of compulsion except as provided under the Code. The offences against State pose a threat to national security and hence it cannot be provided as a defence.
Section 93 provides that communication if made in good faith cannot be considered as an offence. If the communication is made to benefit the other person, the harm caused cannot be punished.
Section 95 is based on the maxim de minimis non curatlex, which means law takes no account of trifles. If the acts are very trivial and a person of ordinary sense and temper does not consider such act as harm then, such acts are justifiable and provided as defences.
Sections 96 to 106 provides for private defences in specific circumstances. Section 96 lays down a general rule that no act which is committed in the exercise of private defence is an offence. But this defence cannot be availed if the accused had sufficient time for recourse from legal means.
Therefore, the scheme of defences provided under the Code are either excusable or justifiable. Both the categories of defences provides protection to the accused person as the criminal law abides by the principle of not punishing the innocent.
Frequently Asked Questions
If a woman causes injury to perpetrator while she is being raped, can she plead any general defences?
Section 100 provides that the defence can be pleaded even when the person has caused death of another in order to protect their body. If a person is causing assault with an intention to commit rape, then the victim can go to the extent of causing death of such perpetrator to protect herself.
Edited by Sakshi Agarwal
Approved & Published – Sakshi Raje
[i] (1923) 45 All 329.
[ii] 1981 Cr LJ 1683 (SC)
[iii] Raja Ram, 1977 Cr LJ NOC 85(All)