Introduction

The criminal law outlines different punishments for various crimes. But a person
may not always be punished for a crime that he/she has committed. The Indian
Penal Code, 1860 recognizes defenses in chapter four under the heading ‘General
Exceptions.’ Sections 76 to 106 of the IPC cover these defenses. The law offers
certain defenses that exculpate criminal liability. These defenses are based on the
premise that though the person committed the offense, he cannot be held liable.
This is because, at the time of the commission of the offense, either the prevailing
circumstances were such that the act of the person was justified or his condition
was such that he could not form the requisite mens rea for the crime. The defenses
are generally classified under two heads- justifiable and excusable. Thus, for
committing a wrong, a person must be responsible for doing a wrongful act
without having any justification or excuse for it.
A justified act is a one which otherwise, under normal conditions, would have been
wrongful but the circumstances under which the act was committed make it
tolerable and acceptable. The person fulfills all the ingredients of the offence but
his conduct is held to be right under the circumstances. An excusable act is the one
in which though the person has caused harm, it is held that a person should be
excused because he cannot be blamed for the act. For example – if a person of
unsound mind commits a crime, he cannot be held responsible for being mentally
sick. In case of an excusable defense, the actor is not punished as he lacks the
necessary mens rea for the offence either by reason of an honest mistake of fact,
infancy, insanity or intoxication. There must be a disability to cause the condition
that excuses the conduct. A conduct is punishable not because the person acted in
that manner but because he chose to act in that manner. Excusable defenses are
invoked when one cannot infer the bad character of a person from the act that
he has committed. The different defenses features in IPC and in what category
they fall have been discussed in this project. The next section expresses my views
on attempt to classify these general exceptions.
Classification of general exceptions

Excusable Act – Excusable General Exceptions

 Mistake of fact (Section 76 and79)

 Accident (Section 80)
 Infancy (Section 82, 83)
 Insanity (Section 84)
 Intoxication

Justified Act

 Judicial Act  (Section 77 and 78)

 Necessity (Section 81)
 Consent (Section 87 – 89 and 92)
 Duress (Section 94)
 Communication (Section 93)
 Trifles (Section 95)
 Private Defense (Section 96-106)
Defining and Explaining the Excusable General Exceptions:-
Mistake of fact (section 76 and 79)
The two sections exclude a person from criminal liability when they are ignorant of
the existence of relevant facts or have mistaken them and commit a wrongful act
for which he neither could foresee nor intended the unlawful consequence. It is
important that the mistake must be reasonable and must pertain to the fact of the
case and not the law. This is derived from the legal maxim “ignorantia facti doth
excusat, ignorantia juris non excusat”.
 Section 76 excuses a person from criminal liability who, in to good faith,
commits an act which he believes he is bound to do so under law, due to
mistake of fact.
 Section 79 excuses a person from criminal liability who, in to good faith,
commits an act which he believes he is justified to do, due to mistake of fact.
 Section 76 – A person believes that he is under a legal compulsion to do
such an act.
 Section 79- A person acts because he thinks there is a legal justification for
the act he has committed.
Example in case of  – bound by law
A soldier firing on a mob under the lawful orders of his superior – This is an act
where the soldier is bound by law to do so.

 Example in case of justified by law:-

An officer of court is supposed to arrest X but accidentally arrests Z believing him
to be X – this is a mistake of fact.

It is always to be kept in mind that mistake relating to the facts in various case laws
should be a mistake of fact, not a mistake of law. The mistake of law is never
excusable in any court of law because everyone is always expected to know the
law of the land.

In case Regina vs. Prince[1],

Facts: Defendant was convicted of taking an unmarried girl under 16 years out of
the possession and against the will of her father. The jury found that the girl had
told the defendant she was 18, the defendant honestly believed the statement, and
his belief was reasonable.
Defendant’s argument: The statute has a requirement read into it that the
prosecution must prove that the defendant believed the girl he had taken was over
16.
State’s argument: The statute does not require this proof. The act of taking a girl
out is wrong in and of itself – that is the mens rea. It does not matter that he
thought the girl was older. Just like it would not matter whether he knew or did not
know whether she is under 16. However, it would have mattered if he did not know
the girl was in the custody of her father.
Holding: Conviction affirmed.
Reasoning: The court interpreted the statute to require a strict liability application.
The Common Law does not allow defenses to strict liability.
In Chirangi vs. State[2],
Facts- The accused one day took an axe and went with his son(deceased) to a
nearby hillock (a small hill), known as “budra mata” in order to gather some leaves
and killed him, the appellant in a moment of delusion considered that his target
was a tiger and not his son, and he accordingly assailed it with an axe. The accused
thought, by the reason of fact that he was justified in destroying deceased, whom
he thought was a dangerous animal.
Holding – The court accordingly held that in the circumstances the accused was
protected by the provisions of section 79 of the Indian penal code and was hence
acquitted of the charge of murdering his son, under section 302 IPC.
Accident (Section 80)
Nothing is an offence if it is committed:-

1. By accident
 2. Without criminal intention or knowledge
3. While doing a lawful act
4. In a lawful manner
5. By lawful means
6. Where due care and caution is exercised.
Accident means an unintentional act or an unexpected act. It is something that
happens out of the ordinary course of things. It is necessary to prove that the act
was done without any criminal intention, with no mens rea. An act that was
intended by or known to the doer cannot be an accident. The act must be a lawful
act, in a lawful manner by lawful means. Proper care and caution must be
exercised.

LEADING CASE – The State Government vs. Rangaswami[3]

Facts – During the forenoon of the 9th July 1950, when the respondent Jemadar
Menon, Subedar Chaitnath, Subedar Thadius and J.S.O. Verma were playing cards
in J.S.O.’s quarter No. 11, the respondent went to relieve himself. On his return
shortly afterwards, he reported that the hyena which had been roaming about in the
vicinity on the previous day had come back; and he indicated to his companions a
moving object near a tree about 200 feet from them. They all believed that it was a
tiger or hyena, and jemadar Menon went to the bungalows of Ordnance Officers
Gulabsingh and Gurmukh Singh and told them that there was a tiger near the
J.C.O.’s quarters.
The Ordnance Officers went there with their guns; and as Gulabsingh was not a
good ‘shikari’, toe gave his loaded gun to the respondent who went towards the
object from one direction, while Gurmukh Singh and Chaitnath approached it from
the opposite direction. Shortly afterwards, the respondent fired at the object from a
distance of 158 feet; and, to the horror of all, this was followed by the cry of a
human being in pain. When the respondent and others went to the place where he
was prostrate, they found that he was in a precarious condition; and Major M.T.
Chati, Station Commander, on arrival saw that he was dead. He accordingly sent
the report to the Police Station where it was received by K.K. Baxi, station officer.

Respondent’s submission – The respondent in examination admitted that he had

fired as the object with Gulab Singh’s gun because he was under the Impression
that it was the same hyena which had been seen in the vicinity of his quarters on
the previous day. He also pointed out that at the time of the shooting had was
falling, and in defence he added that he had not expected a human being to be at
the place in question and that the object at which he aimed had had a brown
covering, in short, his case was that Kachrya’s death was due to an accident.
Prosecution’s submission – The prosecution evidence, including that of the
station officer K.K. Baxi showed that at the material time drizzling was in
progress, the sky was overcast with clouds, there was no sunshine and visibility
was poor. There were bushes around the place where Kachrya was shot and he was
wearing a gunny-Dug at that time. In fact, the gunny-bag article D, which had been
found beneath the corpse, was bloodstained and contained a tear which indicated
that the bullet had passed through it.
Judgment by Bombay High Court – the respondent was rightly acquitted in
respect of an offence under Section 304A of the Indian Penal Code. The facts to
which the court referred show unmistakably that the amount of care and
circumspection taken by him was that which a prudent and reasonable man would
consider to be adequate upon all the circumstances of the case. The whole affair
was a pure accident and he was protected by the provisions of Section 80 of the
Indian Penal Code. The fact that he used an unlicensed gun would not deprive him
of the benefit of that immunity; and in King Emperor vs. Timmappa [3 Bom LR
678], a Division Bench held that shooting with an unlicensed gun does not debar
an accused from claiming immunity under that section, of the Indian Penal Code.
The appeal against the acquittal is accordingly dismissed and the order of the trial
Magistrate is upheld. The court is also of the opinion that there is no reason why
the sentence awarded under Section 19(e) of the Indian Arms Act should be
enhanced. The respondent was technically liable under that provision but no more;
and all that he had done was to borrow for a few minutes a gun in order to kill, as
he thought, a wild animal which might have attacked him and his comrades. The
application for enhancement of the sentence is also dismissed.
Infancy (Section 82 and 83)
According to Section 82 of IPC, nothing is an offence where –
 Act is done by a child
 Under seven years of age
There is Absolute incapacity for the crime under seven years of age.  Presumption
of law- Doli Incapax i.e. a child has no discretion to distinguish right from wrong,
thus criminal intention does not arise.

According to Section 83 of IPC, nothing is an offence where

 Act is done by a child between 7-12 years of age
 Has no sufficient maturity of understanding
 To judge the nature and consequences of his conduct is no offence.
Malitia Supplet Oetatem – Malice Supplies Age
If proven to have sufficient maturity of understanding, liability arises.

Illustrations:
(i) A child of 9 years of age took a necklace valued at Rs. 2/8/- from another boy
and immediately sold it to another for five annas, the child was discharged under
this section, but the accused was convicted of receiving stolen property for the
court considered convict displaying sufficient intelligence to hold him guilty.

(ii) The accused, a girl of 10 years of age, a servant of the complainant, picked up
his button worth eight annas and gave it to her mother. She was convicted and
sentenced to a month’s imprisonment. But the High Court quashed the conviction
holding that there was no finding by the Magistrate that the accused had attained
maturity of understanding sufficient to judge the nature of her act.

In case of Krishna Bhagwan vs. State of Bihar, Patna High Court upheld that if a
child who is accused of an offence during the trial, has attained the age of 7 years
or at the time of decision the child has attained the age of 7 years can be convicted
if he is able to understand the nature of the offence.
Insanity (Section 84)
It includes act done –

 Due to unsoundness of mind- no free will- born idiot, temporary failure,

madman, unconscious, intoxicated.
 Incapable of knowing the nature of the act, or that it is wrong or contrary to
law.
The point to be emphasized on is that if a person is taking insanity as a defense,
then he has to prove legal insanity along with the medical insanity.

 Tests:
– At the time of commission of offence

– State of mind before and after

– Only organic or natural incapability, not uncontrollable impulses, weak intellect,

or eccentric behavior.
LEADING CASE – Surendra Mishra vs. State of Jharkhand[4],
Facts – According to the prosecution, on 11th of August, 2000 the deceased
Chandrashekhar Choubey was going in a car driven by Vidyut Kumar Modi and
when reached Chas Nala crossing, he asked the driver to stop the car and call
Shasdhar Mukherjee, the owner of Sulekha Auto Parts. As directed, the driver
called said Shasdhar Mukherjee and the deceased started talking to him from inside
the car. According to the prosecution all of a sudden the appellant, Surendra
Mishra, the owner of the Medical Hall came there with a country-made pistol,
pushed Shasdhar Mukherjee aside and fired at point-blank range at the deceased.
The driver fled away from the place of occurrence and informed the family
members of the deceased, leaving the deceased in the car itself. Vinod Kumar
Choubey along with the driver came back and rushed the deceased to the Chas
Nala Colliery Hospital, where he was declared dead.
On the basis of the aforesaid report a case under Section 302 of the Indian Penal
Code and Section 27of the Arms Act was registered against the appellant. After
usual investigation police submitted the charge-sheet and ultimately the appellant
was put on trial for commission of the offence under Section 302 of the Indian
Penal Code and Section 27 of the Arms Act.

The trial court held him guilty on both the counts and sentenced him to undergo
imprisonment for life under Section 302 of the Indian Penal Code but no separate
sentence was awarded under Section 27 of the Arms Act. His conviction and
sentence has been upheld by the High Court in appeal and hence the appellant is
before Supreme Court with the leave of the Court.

Appellant’s submission– Only plea of the appellant was that by virtue of

unsoundness of mind, the act done by him comes within general exception
under Section 84 of the Indian Penal Code and, therefore, he cannot be held guilty
for the act done by him.
Prosecution’s submission – In the present case the prosecution has proved beyond
all reasonable doubt that immediately after the appellant had shot- dead the
deceased, threatened his driver, Vidyut Kumar Modi of dire consequences. Not
only that, he ran away from the place of occurrence and threw the country-made
pistol, the weapon of crime, in the well in order to conceal himself from the crime.
However, it was recovered later on.
The aforesaid conduct of the appellant subsequent to the commission of the
offence clearly goes to suggest that he knew that whatever he had done was wrong
and illegal. Further, he was running a medical shop and came to the place of
occurrence and shot dead the deceased. Had the appellant been a person of
unsound mind, it may not have been possible for him to run a medical shop.

We are of the opinion that the appellant though suffered from certain mental
instability even before and after the incident but from that one cannot infer on a
balance of preponderance of probabilities that the appellant at the time of the
commission of the offence did not know the nature of his act; that it was either
wrong or contrary to law.

Hence, the plea of the appellant does not come within the exception contemplated
under Section 84 of the Indian Penal Code and therefore the appeal was dismissed.

Judgment – It was held that an accused who seeks exoneration from criminal
liability of an act under section 84 is to prove legal insanity and not medical
insanity because Expression “unsoundness of mind” has not been defined in the
Indian Penal Code and it has mainly been treated as equivalent to insanity. But the
term insanity carries different meaning in different contexts and describes varying
degrees of mental disorder. Every person who is suffering from mental disease is
not ipso facto exempted from criminal liability. The mere fact that the accused is
conceited, odd, irascible and his brain is not quite all right, or that the physical and
mental ailments from which he suffered had rendered his intellect weak and
affected his emotions or indulges in certain unusual acts, or had fits of insanity at
short intervals or that he was subject to epileptic fits and there was abnormal
behavior or the behavior is queer are not sufficient to attract the application
of Section 84 of the Indian Penal Code.

Next thing which needs consideration is as to on whom the onus lies to prove
unsoundness of mind.

In law, the presumption is that every person is sane to the extent that he knows the
natural consequences of his act. The burden of proof in the face of Section 105 of
the Evidence Act is on the accused. Though the burden is on the accused but he is
not required to prove the same beyond all reasonable doubt, but merely satisfy the
preponderance of probabilities.

Even if the accused establishes unsoundness of mind, Section 84 of the Indian

Penal Code will not come to its rescue, in case it is found that the accused knew
that what he was doing was wrong or that it was contrary to law. In order to
ascertain that, it is imperative to take into consideration the circumstances and the
behavior preceding, attending and following the crime. Behavior of an accused
pertaining to a desire for concealment of the weapon of offence and conduct to
avoid detection of crime go a long way to ascertain as to whether, he knew the
consequences of the act done by him.

Intoxication (Section 85 and 86)

According to section 85 of the IPC, nothing is an offence which includes:-
 Act of a person
 Incapable of judgment
 Due to intoxication
 Caused without his knowledge or against his will
According to section 86 of the IPC,
 Offence requiring a particular intent or knowledge
 Committed by an intoxicated person
 Presumption of knowledge, unless proves intoxicated without his knowledge
or against his will is never excusable in the court of law.
The major difference between section 85 and 86 is that in sec 85, a person is
intoxicated involuntarily and in sec 86, a person is intoxicated voluntarily. That’s
why under sec 85, defense is provided to the accused. In sec 86, and person is held
guilty of the offence.

The correct test is whether by reason of drunkenness, the accused was incapable

of forming an intention of committing the offence.
In case of Jethu ram vs. state of MP[5], where accused drank liquor at the
persuasion of his father to alleviate his pain, it cannot be said that administration of
liquor to him was against his will and therefore, he could not claim any benefit
under section 85. “Will” is the faculty of our mind which guides or controls our
actions. So where the mind goes with the act, it can be said that a person had acted
in accordance with his will.
LEADING CASE – Basdev vs. State of Pepsu[6]
In this case, Basdev (retired military personnel) and a boy (aged 15 years) had
gone to attend a wedding. At there, Basdev boozed quite a lot and he became very
drunk and intoxicated. However, the evidence showed that although at times he
staggered and was incoherent in his talk, he was still capable of moving himself
independently and talking coherently as well. He asked the boy to step aside a little
so that he may occupy a convenient seat. The boy refused. On that Basdev
whipped out a pistol and shot the boy in the abdomen which proved fatal.

It was also in evidence that after shooting the boy, Basdev had made attempt to get
away and when he was caught hold off by the witnesses, he had requested them to
be forgiven. There was also no evidence that when he was taken to the police
station, he had to be specially supported. Keeping all these facts in view, the court
held that he was not so much under the influence of the drink that his mind was so
obscured by the drink that there was incapacity to him to form the required
intention.

The court observed that 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 intent
or intention is concerned, we must gather it from attending circumstances of the
case paying due regard to the degree of intoxication.

The court laid down some important propositions with regard to the effect of
voluntary intoxication on criminal liability:-

 The absence of understanding of the nature and consequence of an act,

whether produced by drunkenness or otherwise, is a defence to the crime
charged.
 Drunkenness is ordinarily neither a defence nor an excuse for crime.
 If due to excessive drunkenness actual insanity supervenes, it furnishes a
complete defence to a criminal charge.
 However, there may be cases falling short of insanity. In such cases and
when the crime is such that the intention of the party committing it is one of
 its constituent elements, there should be evidence to show that he had become
“incapable of forming the specific intent essential to constitute the crime.”
 Where the evidence does not prove such incapacity and merely establishes
that the mind of the accused was so affected by drink that he more readily
gave way to some violent passion, that would not rebut the presumption that
accused intended the natural consequences of his acts.
In the present case, the accused had not gone so deep in drinking, and from the
fact it could be found that he knew what he was about to do.

Decision:-
In view of the decision in this case, it cannot be said that the accused was incapable
of forming a specific intent. Thus, he is liable to be convicted for murder.

By
Sahana Gopal
LLM(PhD)