GENERAL EXCEPTIONS

MISTAKE OF FACT
Section 14 and Section 17 BNS: Mistake of Fact
Mistake of fact is sometimes a good defence. SECTION 14 lays
down that nothing is an offence which is done by a person, who is,
or who by reason of a mistake of fact and not by reason of mistake
of law, in good faith, believes himself to be bound by law to do it.
Illustrations:
 A, a soldier, fires on a mob by the order of his superior officer
in conformity with the commands of the law. A has committed
no offence.
 A, an officer of a Court of Justice, being ordered by that court
to arrest Y, and after due inquiry, believing Z to be Y, arrests
Z. A has committed no offence.
Section 14 of IPC is established from a well known maxim,
Ignorantia facti excusat, ignorantia legis nemi nem excusat. It means
that ignorance of fact is an excuse but, ignorance of the law is not an excuse. The
mistake of fact to be an excuse must be a mistake related to a material fact that is
necessary to constitute a particular offence. Mistake must be reasonable and
acceptable and that it is not a mistake of law but a mistake of fact.
The essential elements of section 14 can be assessed as follows:
1. An act or mistake done by a person who is compelled by law in doing that.
2. Such a person believes that he is bound by law to do such an act.
3. Mistake must be related to fact and not the law.
4. The act committed must be in good faith.

 Mistake is a slip made, not by design, but by mischance.

Under English common law also, an honest and reasonable
belief in the existence of circumstances, which would have
made that act an innocent act, has always been a valid
defence. An honest and reasonable mistake stands, in fact, on
the same footing as absence of the reasoning faculty, as
infancy or lunacy .

 When mistake of fact is no defence

Mistake of fact is no defence if the fact itself is illegal. One cannot
do an illegal act (e.g. selling adulterated foodstuffs) and then plead
ignorance of a fact. Thus, a person cannot by mistake of fact, shoot
X and then plead in defence that he did not intend to kill X at all, but
mistaken him for Y, whom he wanted to kill.

Similarly, taking an unmarried girl under the age of 16 years out of

possession and against the will of her father was held not to be a
good defence to an indictment for abduction because the accused
intended to do and did a wrongful or immoral act, and not an
innocent act [R v. Princes (1875) LR 2 CCR 154]. However, where A
sees a young girl about to jump into the river; believing that the girl
is about to commit suicide A grapples with her and drags her away,
he is not guilty of molestation although it may turn out that the girl
was actually doing sun worship.
In M.H. George v. State of Maharastra, the Apex court held that an
Indian citizen residing in a foreign country cannot raise the plea in
his defence that the law under which is being prosecuted, having
been recently passed, he did not know about the existence of that
law. The reason being that as soon as a law is promulgated it is
presumed that all persons whether living in India or aboard, know
about the law and publication of that law outside India is not
necessary.

According to SECTION 17, Nothing is an offence which is done by

any person who is justified by law, or who by reason of a mistake of
fact and not by reason of a mistake of law in good faith, believes
himself to be justified by law, in doing it.

Illustration
A sees Z commit what appears to be murder. He in good faith seizes
Z, to hand him over to the police. A has committed no offence
though it may turn out that Z was acting in self-defence.

 Some cases coming under Sec. 79 are:

 In Chirangi v. State (1952 CrLJ 1212), the accused, in a
momentary delusion, mistook his own son as a tiger and killed
him.
 In Wary am Singh v. Emperor (AIR 1962 Lah 554), the
accused, in a night, mistook a living human being as a ghost
and killed him.
 R. Tolson.

 Distinction between Section 14 and Section 17

 Under Section 14 a person acts under legal compulsion, while
under section 17 he acts under legal justification.
 Sec.14 grants exemption to a person from criminal liability
when he believes himself bound by law to do a thing in a
particular way although the true state of facts reveal his act
to be an offence. For example- A, a soldier, fires on a mob
by the order of his superior officer, in conformity with the
commands of the law. A has committed no offence.
 Sec. 17 on the other hand , deals with cases wherein a
person by reason of a mistake of fact feels himself to be
justified by law in doing an act in a particular way. For
example-A seeing Z engaged in inflicting severe blow on B,
seizes him and takes him to the police. Later it shows that Z
was acting only in self defence and as such the seizure of Z
by A was unlawful. But A is protected under section 17 since
he acted in good faith under mistake of fact.
SECTION 76 IPC- Nothing is an offence which is done by a person
who is, or who by reason of a mistake of fact and not by reason of a
mistake of law in good faith believes himself to be, bound by law to
do it.

Illustration.

A, a soldier, fires on a mob by the order of his superior officer, in

conformity with the commands of the law. A has committed no
offence.

SECTION 79 IPC- Nothing is an offence which is done by any

person who is justified by law, or who by reason of a mistake of fact
and not by reason of a mistake of law in good faith, believes himself
to be justified by law, in doing it.

Illustration.

A sees Z commit what appears to A to be a murder. A, in the

exercise, to the best of his judgment exerted in good faith, of the
power which the law gives to all persons of apprehending murderers
in the fact, seizes Z, in order to bring Z before the proper
authorities. A has committed no offence, though it may turn out that
Z was acting in self-defence.

JUDICIAL ACTS

SECTION 15 BNS:Act of Judge when acting judicially- Nothing

is an offence which is done by a Judge when acting judicially in the
exercise of any power which is, or which in good faith he believes to
be, given to him by law.

SECTION 16 BNS: Act done pursuant to judgment or order of

Court- Nothing which is done in pursuance of, or which is warranted
by the judgment or order of, a Court; if done whilst such judgment
or order remains in force, is an offence, notwithstanding the Court
may have had no jurisdiction to pass such judgment or order,
provided the person doing the act in good faith believes that the
Court had such jurisdiction.

Section 77 IPC: Act of judge when acting judicially- Nothing is

an offence done by a judge when acting judicially in the exercise of
any power that is, or which in good faith he believes to be, given to
him by law.

Illustration: A, a judge punishes B with the death penalty. A is not

liable for the murder of B because he is protected under section 77,
IPC.
Section 77 of IPC grants protection to a judge when he is acting
judicially. As per this section, if a judge commits an offence while
acting judicially in the exercise of any power given to him by law or
in the exercise of any power which he believes to be given to him by
law in good faith, he will be able to take the defence under this
section.

Megh Raj vs Zakir Hussain (1875)

In this case, the High Court of Allahabad has held that ‘no person
acting judicially is liable for an act done or ordered to be done in the
discharge of his official duty within the limits of his jurisdiction and
in such a case the question of acting in good faith does not arise.
The question of good faith is irrelevant only when a judge acts
without jurisdiction. But when there is jurisdiction, the immunity
extends even to acts which constitute even an abuse of it.

Section 78 IPC: Act done pursuant to the judgment or order

of court- Nothing which is done in pursuance of, or which is
warranted by the judgment or order of a Court of Justice; if done
whilst such judgment or order remains in force, is an offence,
notwithstanding the court may have had no jurisdiction to pass such
judgment or order, provided the person doing the act in good faith be-
lieves that the court had such jurisdiction.

Illustration: A, an officer of the court, arrested B, following the court’s order. Here, A
has committed no offence.

Kapur Chand vs State (1976)

In pursuance of an order of the Magistrate, the accused (husband) had withdrawn the
property of his wife from her control without her consent. It was held that the husband
had not committed any offence as he was protected under section 78 of the IPC.

ACCIDENT

The word accident means a sudden unintended and misfortune act

by chance without any apparent cause. It is considered as one of
the general defence under criminal law for lack of mens rea, as a
vital part in committing a crime, at the time of action. Mere an act
without a guilty mind doesn’t constitute a crime.

SECTION 18 BNS- Nothing is an offence which is done by accident

or misfortune, and without any criminal intention or knowledge in
the doing of a lawful act in a lawful manner by lawful means and
with proper care and caution
Illustration

‘A’ is at work with a hatchet; the head flies off and kills a man who is
standing by. Here, if there was no want of proper caution on the
part of A, his act is excusable and not an offence.

Essential elements of Section 18 BNS-

1. Act should be done by accident.

2. Act should be without any criminal intention or knowledge.

3. While doing a lawful act in a lawful manner by lawful means.

4. With proper care & caution.

Accident in doing a lawful act

Actually, it is based on a principle that no act is an offence unless
the one doing it has done it with criminal intention.

Section 18 sheds light on the fact that nothing is an offence which is

done by accident or misfortune and without any criminal intention or
knowledge, in the doing of a lawful act act in a lawful manner by
lawful means and with proper care and caution.

Important case laws related to the Accident:-

State of Government v. Rangaswamy [1952]

In this case, the accused went with a view to killing Hyena and
heard a sound from a direction and fired a shot at it’s direction. But
later it was convinced that it was a person, not Hyena. Then he
pleaded that it was raining and had a bona fide impression that it
was Hyena and fired the shot with a view to protecting people
around him from being attacked by it.

The Court upheld that the accused will be entitled to the benefits
mentioned under Section 80 of Indian Penal Code as besides other
facts, there was no expectation of any other person being present in
that area in which the death happened. so it is proved that the act
was the result of an accident.

Tunda v. State [1950]

In this case, the accused Tunda and the deceased were friends who
were very interested in wrestling and were engaged in a wrestling
bout. While wrestling, the deceased got injured on his head and it
resulted in his death. In this case, Allahabad Highcourt observed
that the injury caused by death was the result of an accident and
there was no foul play on part of the accused. In addition to that,
the court held that there was an implied consent of the deceased in
taking any risk in the wake of wrestling. Therefore the accused was
entitled to get benefits under both Section 80 and 87.

Jageshwar v. Emperor [1924]

In this case, the accused was hitting the victim and accidentally hit
the wife of the accused who was pregnant. No sooner did the blow
hit the head of the child than it resulted in his death. The Court held
that the accused will not be entitled to the benefits of Section 80 of
IPC. It’s because even though the death of the child was by
accident, the act was not lawful in a lawful manner by lawful means.

SECTION 80 IPC says that “Nothing is an offence which is done by

accident or misfortune, and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful
means and with proper care and caution.”

Illustration:-

A is at work with a hatchet; the head flies off and kills a man who is
standing by. Here, if there was no want of proper caution on the
part of A, his act is excusable and not an offence.

DOLI INCAPAX

Doli incapax is a Latin phrase used in the legal system, which means
‘incapable of doing harm or committing a crime.’ This principle
presumes that a child cannot form the necessary criminal intent to
commit an offence.
The maxim Doli Incapax is based on the following reasoning:
 Criminal responsibility should only apply to those who intend
to commit a crime.
 Children below the age of 7 lack sufficient mental
understanding to comprehend the consequences of their actions;
thus, they do not possess the criminal intention or mens rea
required to be held guilty of an offence.
 Children need to be protected from the strictness of the law
due to their tender age.

Doli Incapax inBNS

Doli Incapax is mentioned in Sections 20and 21of the BNS-.

BNS Section 20- Nothing is an offense which is done by a child

under seven years of age.

Doli incapax-

An infant below 7 is absolutely doli incapax. In the ordinary course

of nature a person of such age is absolutely incapable of
distinguishing between right and wrong.

Privilege of infancy-

An infant under 7 years can do no wrong. He can commit no crime

as he is incapable of understanding the consequences of his acts. If,
therefore, a child is accused of an offense under the Code, proof of
the fact that he was at the time below 7 years of age is ipso facto an
answer to the prosecution. It is not then open to the prosecution to
prove precocity of intellect, or any fact to rebut the presumption of
innocence, which is then irrebuttable.

Act of a child above 7 and under 12 years of age of immature

understanding–

BNS Section 21-Nothing is an offense which is done by a child

above seven years of age and under twelve years of age, who has
not attained sufficient maturity of understanding to judge the nature
and consequences of his conduct on that occasion.

Qualified privilege of children between 7 and 12 –

Under the Code a person below 7 is incapable of committing a

crime; and a person above 7 and below 12 may or may not be able
to commit a crime according to his individual intelligence. Full
criminal responsibility commences after 12, though civil liability
does not commence till a person has completed his 18 years.

Infants between 7 and 12 are criminally liable, if it is shown that

they have attained the requisite degree of understanding to
discriminate between right and wrong.
No provision for an infant of 7 years-

It will be seen that, while the last section speaks of “under seven”
and this section of “above severn,” the two sections make no
provision for an infant of 7 years. But such an infant should be dealt
with under section 20 BNS.

Section 82 AND 83 IPC

Section 82 of the Indian Penal Code, 1860 falls under the chapter
called ‘General Exceptions.’ This section grants absolute immunity
to any child under 7 years from being considered guilty of any
offence. It states, “Nothing is an offence which is done by a child
under 7 years of age.” This means that no child below the age of 7
can be held legally responsible for any criminal act.

The reason for this exemption is that children below the age of 7
cannot understand the difference between right and wrong. The law
aims to protect them by granting complete immunity from criminal
prosecution, trial, and conviction. This idea is rooted in the belief
that infancy is a period of limited understanding, and therefore,
young children should not be punished.
It’s important to note that the age of discretion, where a child can
be held accountable for their actions, varies from country to
country. Section 82 applies not only to offences under the Indian
Penal Code but also extends its protection to offences under local
and special laws.
Section 83:
Section 83 of the IPC provides partial immunity from criminal
liability to children who are above 7 and below 12 years of age.
According to this section “Nothing is an offence which is done by a
child above seven years of age and under twelve, who has not
attain sufficient maturity of understanding to judge of the nature
and consequences og his conduct on that occassion.”
 If a child is above 7 and below 12 years old,
 And if it is proven that the child has not yet reached a
sufficient level of maturity to understand the nature and
consequences of their actions on that particular occasion,
 Then, any act committed by that child will not be considered
an offence.
In other words, a child between 7 to 12 years of age can be excused
from criminal liability only if it can be shown that, at the time of
committing the offence, the child did not fully comprehend the
gravity of their actions. To determine whether a child has enough
understanding, various factors are taken into account, such as the
nature of the act, the child’s behaviour before and after the
incident, and how they behave during court proceedings.
For example, if a 10-year-old child steals a valuable bracelet from a
friend’s house and then sells it for a lower price, the child’s conduct
might indicate sufficient maturity to understand that stealing and
selling the bracelet was wrong. In such a case, the child could be
held guilty of theft under Section 378 of the IPC.

Case Laws for Doli Incapax

Hiralal Mallick v. State of Bihar (1977)

In this case, Hiralal Mallick, a 12-year-old boy, along with his two
elder brothers, was charged with the homicide of Arjan Mallick, and
they were convicted under Section 302 read with Section 34 of the
Indian Penal Code (IPC). Hiralal had caused fatal injuries to Arjan’s
neck with a sharp weapon as an act of revenge and then fled the
scene with his brothers. Upon appeal, the High Court converted
their conviction to one under Section 326 read with Section 34 IPC.
Considering Hiralal’s age at the time of the crime (12 years), the
High Court took a compassionate view and reduced his sentence to
4 years of rigorous imprisonment. However, Hiralal appealed this
decision to the Supreme Court through special leave.
The Supreme Court dismissed Hiralal’s appeal and upheld his
conviction. The Court reasoned that the evidence pointed to a clear
intention by Hiralal to endanger the life of the deceased, and there
was no evidence to suggest that Hiralal was not mature enough to
understand the consequences of his actions at the time of the
offence.
The Court also highlighted that in cases where a crime is committed
by a group of individuals acting together, the degree of criminal
responsibility may differ based on each person’s role and the
circumstances surrounding the crime and the applicability of Doli
Incapax maxim. Thus, a personalised approach is necessary when
assessing the culpability of each participant, considering factors like
their capacity to understand the nature of their actions (doli capax),
their age, and their expectations of the consequences.

Kakoo v. The State of Himachal Pradesh (1976) SC

In the case of Kakoo v. The State of Himachal Pradesh (1976) SC,
the accused, Kakoo, who was 13 years old, was convicted of raping
a 2-year-old child. He was sentenced to 4 years of rigorous
imprisonment by the High Court.
However, on appeal through Special leave under Article 136 of
the Indian Constitution, it was argued that since the accused was a
juvenile at the time of the crime, a more reformative approach
should be taken. The court, considering Section 82 and Section 83
of the Indian Penal Code and the principle of Doli Incapax and
emphasising the need for a humanitarian approach towards juvenile
offenders, reduced the sentence to one year of rigorous
imprisonment and a fine of Rs. 2000.
Ulla Mahapatra v. The King (1950) Orissa HC
In the case of Ulla Mahapatra v. The King (1950) Orissa HC, the
appellant Ulla Mahapatra, an 11-year-old child, threatened and
attacked the deceased with a knife, causing his death. He was
convicted under Section 302 IPC and initially sentenced to
transportation. However, on appeal, the Orissa High Court
considered his age and ordered him to be sent to a reformatory
school for 5 years instead of transportation, taking a more
rehabilitative approach.

INSANITY

Insanity is provided in accordance with Section 84 of the Indian

Penal Code as a defence under Indian Law. However, the term
“insanity” is not used under this provision. The Indian Penal Code
uses the sentence “mental soundness.” In accordance with the
code, the defence of insanity, or that can also be called defence of
mental insanity, comes from M’Naghten’s rule.

Section 22 BNS- Nothing is an offence which is done by a person

who, at the time of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that he is doing what
is either wrong or contrary to law.

In Section 84 of the Indian Penal Code, a person of an unsound

mind shall act- Nothing is an offence committed by someone who is
currently unable to know the nature of the act or does what is wrong
or contrary to legislation due to a lack of a sound mind.

Nevertheless, it should be noted that the framers of the IPC

preferred to use the expression “insanity of mind” instead of the
term “insanity.” Insanity’s scope is very limited, while the mind’s
insanity covers a large area.

For this defence, the following elements are to be established-

1. The accused was in a state of unsoundness of mind at

the time of the act.
2. He was unable to know the nature of the act or do what
was either wrong or contrary to the law. The term ‘wrong’
is different from the term ‘contrary to the law.’
If anything is ‘wrong’, it is not necessary that it would also be
‘contrary to the law.’ The legal conception of insanity differs
significantly from medical conception. Not every form of insanity or
madness is recognized as a sufficient excuse by law.

Distinction between Legal and Medical Insanity

Section 84 of the Indian Penal Code sets out the legal responsibility
test as distinguished from the medical test. It can be observed that
the absence of will arises not only from the absence of
understanding maturity but also from a morbid state of mind. This
morbid mind condition, which provides an exemption from criminal
responsibility, differs from the medical and legal point of view.
According to the medical point of view, it is probably correct to say
that every person, when committing a criminal act, is insane and
therefore needs an exemption from criminal responsibility; while it is
a legal point of view, a person must be held to be the same as long
as he is able to distinguish between right and wrong; as long as he
knows that the act carried out is contrary to the law.

In the case of Hari Singh Gond v. State of Madhya Pradesh, the

Supreme Court observed that Section 84 sets out the legal test of
responsibility in cases of alleged mental insanity. There is no
definition of ‘mind soundness’ in IPC. However, the courts have
mainly treated this expression as equivalent to insanity. But the
term ‘insanity’ itself does not have a precise definition. It is a term
used to describe various degrees of mental disorder. So, every
mentally ill person is not ipso facto exempt from criminal
responsibility. A distinction must be made between legal insanity
and medical insanity. A court is concerned with legal insanity, not
medical insanity.

Unsoundness of mind must be at the time of the commission

of the Act.

The first thing a court to be considered when defending insanity is

whether the accused has established that he was unsound at the
time of committing the act. The word “insanity” is not used in
Section 84 of the penal code.

In Rattan Lal v. State of M.P, it was well established by the court

that the crucial point of time at which the unsound mind should be
established is the time when the crime is actually committed and
whether the accused was in such a state of mind as to be entitled to
benefit from Section 84 can only be determined from the
circumstances that preceded, attended and followed the crime. In
other words, it is the behavior precedent, attendant and subsequent
to the event that may be relevant in determining the mental
condition of the accused at the time of the commission of the
offense but not those remote in time.

In Kamala Bhuniya v. West Bengal State, the accused was tried for
her husband’s murder with an axis. A suit was filed against the
accused, she alleged to be insane at the time of the incident, the
investigating officer recorded at the initial stage about the
accused’s mental insanity. The prosecution’s duty was to arrange
for the accused’s medical examination, it was held that there was
no motive for murder. The accused made no attempt to flee, nor
made any attempt to remove the incriminating weapon Failure on
the part of the prosecution was to discharge his initial responsibility
for the presence of mens-rea in the accused at the time of the
commission of the offence. The accused was entitled to benefit from
Section 84. And hence accused was proved insane at the time of the
commission of the offence and was held guilty of Culpable Homicide
and not of Murder.

Mc’Naughten’s Rule

There have been several tests from time to time, like the Wild Beast
Test, Insane Delusion Test, etc. But the most important is the “Right
and Wrong Test” formulated in M’Naughten’s case.

The hearing of M’Naughten and his release was a topic of discussion

in House of Lords, and as a consequence, they called upon fifteen
judges to decide on the question of criminal liability in the cases
where the accused is incapable of understanding the nature of the
act and also answered the questions advanced. Fourteen judges had
the same answers. The view of the majority was given by Tindal C.J.,
these answers to the questions are known as M’Naughten’s Rule.
The following principles were cited:

1. If the person knew what he was doing or was only under

a partial delusion, then he is punishable.
2. There is an assumption that every man is prudent or
sane and knows what he is doing and is responsible for the
same.
3. To establish a defense based on insanity, it must be
ascertained, at the time of perpetrating the act, the
 accused was in such a state of mind as was unable to
know the nature of the act committed by him.
4. A person who has sufficient medical knowledge, or is a
medical man and is familiar with the disease of insanity
cannot be asked to give his opinion because it is for the
jury to determine, and decide upon the questions.
English Law on the Defence of Insanity
English criminal law considers insanity a valid defence of crime. The
fundamental definition of insanity is based on the M’Naghten Rules.
These rules are not about insanity medical definitions. In
M’Naghten’s case, the judges declared the following insanity
principles:

1. All are presumed to be sane and to have enough reason,

until proved contrary, to be responsible for their crimes.
2. It must be clearly demonstrated in order to establish the
defence of insanity that at the time of the act, the accused
was working under such a defect of reason, from mental
illness, as
3. He didn’t know the nature and the qualities of the act he
was doing, or
4. He did not know what he was doing was wrong.
The accused must, therefore, prove on the basis of the facts that he
was suffering from a defect of reason caused by mental illness in an
effort to argue insanity, because either he was unaware of the
nature and quality of the act, or he had not realized that his actions
were wrong.
Incapacity to know the nature of the act
The word “incapacity to know the nature of the act” embodied in
Section 84 of the Indian Penal Code refers to that state of mind
when the accused was unable to appreciate the effects of his
conduct. It would mean that the accused is insane in every possible
sense of the word, and such insanity must sweep away his ability to
appreciate the physical effects of his acts.

Incapacity to know right or wrong

In order to use the defence of insanity under the latter part of
Section 84, namely “or to do what is either wrong or contrary to the
law,” it is not necessary that the accused should be completely
insane, his reason should not be completely insane, his reason
should not be completely extinguished. What is required, is to
establish that although the accused knew the physical effects of his
act, he was unable to know that he was doing what was either
“wrong” or “contrary to the law.” This part of Section 84 has made a
new contribution to criminal law by introducing the concept of
partial insanity as a defence against criminal insanity. However, as a
practical matter, there would probably be very few cases in which
insanity is pleaded in defence of a crime in which the distinction
between “moral” and “legal” error would be necessary. In any
crime, insanity can undoubtedly be pleaded as a defence, yet it is
rarely pleaded except in murder cases. Therefore, in a case, this
fine distinction may not be very useful for the decision. The Indian
penal code has advisably used either “wrong or contrary to the law”
in Section 84, perhaps anticipating the controversy.

Irresistible Impulse as a defence

Irresistible impulse is a sort of insanity where the person is unable
to control his actions even if he has the understanding that the act
is wrong. In some cases, the Irresistible Impulse Test was
considered to be a variation of Mc’Naughten’s rule; in others, it was
recognized to be a separate test. Though the Irresistible Impulse
Test was deemed to be an essential corrective on Mc’Naughten’s
selective perception, it still had some criticisms of its own.

Under English Law

In 1884, the irresistible impulse test was introduced by the

legislation. By 1967, this test was applicable in 18 states out of 51
states of the U.S.A. Irresistible impulse when, attributable to a
diseased mind, appears to have been identified as a legitimate
excuse in some English cases.

Irresistible impulse as a defence was developed in the famous case

of Lorena Bobbit (1993), on June 23rd, 1993, the defendant took
a knife from her kitchen and wounded her husband by cutting off his
penis while he was sleeping. Her lawyers contended that she had
been suffering from domestic violence, which was perpetrated by
her husband during her marriage, and his husband even raped her
before she committed this act. Though she was well aware of the
consequences, she was not able to control her actions and
demanded that she was subject to an irresistible impulse. The state
of Virginia was the first state which used this defence in its original
form. It was held that she’s not guilty as she was suffering from
temporary insanity.

Under Indian Law

Usually, when there is adequate capacity to distinguish between

right and wrong, the mere presence of an irresistible impulse would
not excuse liability. Irresistible impulse is not incorporated under
insanity because it does not fall within the ambit of Section 84 of the
Indian Penal Code.

In the case of, Kannakunnummal Ammed Koya v. State of Kerala

(1967), it was held that to claim an exemption under section 84, the insanity
has to be proved, at the time of the commission of an act, mere losing of self-control
due to excitement or irresistible impulse provides no defence under Indian law even if
this is proved in a court of law.

In another case, Ganesh v. Shrawan (1969), it was observed that the mere fact that
the murder is committed by the accused on an irresistible impulse, and there is no
identifiable motive for the commission of the act, can form no grounds for accepting
the defence of insanity.

Durham Rule
The Durham defence is also known as the “Durham rule,” or the
“product test” was established in the case of, Durham v. United
States (1954), the defendant was guilty of breaking into a house
and demanded the plea of insanity in his defence. The existing
tests, which were the Mc’Naughten Rule and the irresistible
impulse test, were declared to be obsolete by the Court of Appeal.
But later on, it was understood that both these tests could still be
employed, and the Durham rule can be used in addition to these
tests.

This defence has two main components:

1. First, the defendant must possess a mental disease or infirmity.

Although these words are not explicitly explained in the Durham case, the
language of the judicial view indicates an effort to rely more on objective,
psychological standards, rather than focusing on the defendant’s
subjective cognition.
2. The second element has to do with causation. If criminal behavior is
“caused” by the mental disease or defect, then the conduct should be
exempted under the circumstances.
This test is currently accepted only in New Hampshire, considering it has been
regarded too broad by other jurisdictions.

INTOXICATION

Section 23 BNS- Act of a person incapable of judgement by

reason of intoxication caused against his will: Nothing is an offence
which is done by a person who, at the time of doing it, is, by reason
of intoxication, icapable of knowing the nature of the act, or that he
is doing what is either wrong, or contrary to law; provided that the
thing which intoxicated him was administered to him without his
knowledge or against his will.

Section 24 BNS- Offence requiring a particular intent or knowledge

committed by one who is intoxicated: In cases where an act done is
not an offence unless done with a particular knowledge or intent, a
person who does the act in a state of intoxication shall be liable to
be dealt with as if he had the same knowledge as he would have
had if he had not been intoxicated, unless the thing which
intoxicated him was administered to him without his knowledge or
against his will.

Section 85 IPC: Act of a person incapable of judgment by reason of

intoxication caused against his will: Nothing is an offence which is
done by a person who, at thc time of doing it, is, by reason of
intoxication, incapable of knowing the nature of the act, or that he is
doing what is either wrong, or contrary to law; provided that the
thing which intoxicated him was administered to him without his
knowledge or against his will.

This section protects a man from criminal liability, if at the time of

committing the offence, he was incapable of knowing the nature of
this act or that he was doing something wrong or contrary to law by
reason of intoxication, provided that the intoxicant was
administered to him 'without his knowledge' or 'against his will'. The
terms 'without his knowledge' or- 'against his will' denote that it
should be involuntary intoxication.

The expression 'without his knowledge' means that the person

concerned is ignorant of the fact that what is consumed by him is an
intoxicant or is mixed with an intoxicant. The word 'against his will'
means that the person was forced or coerced into consuming an
intoxicant.

But, by no means, this section is limited to drunkenness only. The

essential elements of the defence are as follows:

i) the accused must be under the state of intoxication at the time of

doing an act.
ii) he, by reason of intoxication, must not be knowing the nature of
his act, or he must not be knowing that his act was wrong or
contrary to law.
iii) the intoxicant is given to him without his knowledge or against
his will.

State of Intoxication: This 'state of intoxication' can only mean

intoxication which renders a person incapable of knowing the nature
of the act or that he is doing what is either wrong or contrary to law.
Where a drunken person commits an offence, there will be no
presumption of guilty-intention and such intention must be proved
like any other fact in issue. The person will be exogenated from
liability for an act done while in a state of intoxication if he, at the
time of doing it, by reason of intoxication was incapable of forming
the intention.Voluntary drunkenness is no excuse for the
commission of offence.

Burden of Proof: The burden of proof of involuntary intoxication and

its resultant incapacity on the person is on the accused. Like in all
other exceptions, the onus of proving the same is on the accused.

The case of Reniger v Fogossa states that if a person who is drunk kills another, this
shall be a felony, and he shall be hanged for it even if he did it through ignorance, for
when he was drunk or he had no understanding and nor memory; but in as much that
ignorance was caused by his own act and folly and he could have avoided it, he shall
not be privileged thereby.

It is said that one who sins when drunk, should be punished when he is sober – qui
peccat ebrius luat sobrius. The justification for the punishment in such cases is based
on the principle that intoxication is the result of a voluntary act of the accused and he
must answer for it, although he might not have been capable of self-restraint at the
time the crime was committed.

In Bablu mubarik Hussain v. state of Rajasthan, the Supreme Court

examined Sec. 85 of IPC & held that evidence of drunkenness, proof
that the accused was incapable of wrongful intent should also be
considered, along with the other facts & then the the accused
person has the intention to commit the crime.Just proving that his
mind was affected by the intoxication that led to violent behaviour
doesn't disapprove of a man's natural consequences of that action.
The court rejected the defendant's plea because it was a very brutal
and diabolical act.

Section 86 IPC- Offence requiring a particular intent or knowledge

committed by one who is intoxicated: In cases where an act done is
not an offence unless done with a particular knowledge or intent, a
person who does the act in a state of intoxication shall be liable to
be dealt with as if he had the same knowledge as he would have
had if he had not been intoxication, unless the thing which
intoxicated him as administered to him without his knowledge or
against his will.

For instance, if A, a man who has consumed too much liquor, takes
a knife from his house and goes along the road shouting his
intention to kill B, with whom he had quarrelled earlier, and kills C
who tried to pacify him, A would be imputed with the same
knowledge as he would have had, had he been sober and his act
would amount to culpable homicide not amounting to murder
punishable under BNS and not murder.

The following are the components of Section 86 of ipc:

 The existence of a particular knowledge or intention.

 Influence of a substance that results in drunkenness.
 Giving the drunken substance to someone without their will or without their
knowledge.

In the case of Basdev vs State of Pepsu, 1956, the law of dominance has been very
briefly summarised. The appellant Basdev of the village Harigarh was a retired
military jamadar, who was charged with the murder of a young boy named Magarh
Singh (15 or 16 years old). The two of them and others of the same village went to
attend a wedding and to take the mid-day meal; some had settled down in their seats
and some had not. The appellant asked Magar Singh, the young boy to step aside a
little so that he could occupy a convenient seat but Magar Singh did not move. In a fit
of anger, the appellant whipped out a pistol and shot the boy in the abdomen. The
injury proved fatal.

While rejecting the plea of the accused to allow him the benefit of Section 86 and
reduce the charge from murder to culpable homicide not amounting to murder, the
Supreme Court laid down the following rules for guidance:

1. The absence of understanding the nature and

consequences of an act whether produced by drunkenness
or otherwise is not a defence to the crime charged.
2. The evidence of drunkenness which renders the accused
incapable of forming the specific intent essential to
constitute the crime, should be taken into consideration
with other proven facts in order to determine whether or
not he had this intent.
3. The evidence of drunkenness falls short to prove the incapacity of
rational judgement, and merely establishing that his mind was affected by
a drink which gave way to some violent passion, does not rebut the
presumption that a man intends the natural consequences of his acts.
In the case of Dasa Kandha versus the State of Orissa, 1976 the plea of the accused-
appellant that under the influence of liquor he could not have formed the requisite
intent, and hence this offence is to be treated as a culpable homicide and not murder,
was not sustained. In the instant case, the plea could not be upheld because of the
clear and cognizant prosecution evidence which established the guilt of the accused.

Foreseeability test
This test checks the liability of a person as to whether he is liable or
not for the offense committed. It is true that when a person takes
alcohol he starts losing control over his actions. There is a certain
limit after which a man fully loses control over his mind or actions. If
a person stops before reaching that point then we can say that the
person has not fully lost his control. But the question is how do we
know that a person crossed that point or not? And does this test
apply to both types of intoxications – voluntarily and involuntarily?

This test applies only to voluntary intoxication, whereas in

involuntary intoxication, intention and knowledge of the person is
not a relevant factor to decide the guilt of the accused.

The foreseeability test checks all the actions of an intoxicated

person collectively to see whether he crossed the limit after which a
man loses self-control and cannot foresee the consequences of his
acts. For example, if an intoxicated person just after the commission
of murder tries to hide in a bush, it shows that even if he was under
the influence of liquor but he has not lost his consciousness to judge
whether he is doing a wrongful act or not.

Dutch courage rule

This is based on the theory that people consume not only alcohol for
pleasure, but also to tackle depression & forget pain or pain and to
escape this worldly pain and depression. In this imagination, he
imagines himself as overcoming these problems courageously.
Thus, people often also consume alcohol to develop courage.
Drinking causes a feeling of self-resistance and also takes away the
ability to think this it does is illegal. The person before drinking, i.e.
voluntary intoxication, plans what he or she must do and also builds
the courage to do this thing. This rule is known as rule of courage.
This rule governs only the principle of voluntary intoxication. This
shows that a person intends & also earlier plan to do the act.

Difference between section 85 and section 86 of IPC

It can be concluded that section 85 contains a general exception

where a person who is involuntarily intoxicated, if commits an
offence, will not be held liable. But, section 86 contains a condition
to the exception given under section 85 of the IPC whereby a person
voluntarily intoxicated can be held liable for an offence only when
particular knowledge is proved.
NECESSITY

Section 19 BNS -Act likely to cause harm, but done without

criminal intent, and to prevent other harm: Nothing is an offence
merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to
cause harm, and in good faith for the purpose of preventing or
avoiding other harm to person or property.

Explanation. —It is a question of fact in such a case whether the

harm to be prevented or avoided was of such a nature and so
imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.

SECTION 81 IPC: Act likely to cause harm, but done without

criminal intent, and to prevent other harm

Nothing is an offence merely by reason of its being done with the

knowledge that it is likely to cause harm, if it be done without any
criminal intention to cause harm, and in good faith for the purpose
of preventing or avoiding other harm to person or property.

Explanation

It is question of fact in such a case whether the harm to be

prevented or avoided was of such a nature and so imminent as to
justify or excuse the risk of doing the act with the knowledge that it
was likely to cause harm.

Illustration

‘A’, the captain of a steam vessel, suddenly and without any fault
and negligence on his part, finds himself in such a position that
before he can stop his vessel, he must inevitably run down a boat,
‘B’, with twenty or thirty passengers on board, unless he changes
the course of his vessel and that by changing his course, he must
incur risk of running down a boat ‘C’ with only two passengers on
board, which he may possibly clear. Here if A alters his course
without any intention to run down the boat ‘C’ and in good faith for
the purpose of avoiding the danger to the passengers in the boat
‘B’, he is not guilty of an offence, though he may run down the boat
‘C’ by doing an act which he knew was likely to cause that effect, if
it be found as a matter of fact that the danger which he intended to
avoid was such as to excuse him in incurring the risk of running
down the boat ‘C’.

Ingredients
To attract the provisions of this section the following conditions
must be satisfied :

1. Want of Criminal Intention :-The act constituting the offence

must have been done without criminal intention to cause harm.
Section 81 stipulates the absence of criminal intention but not the
criminal knowledge that is, the doer knows that what he is doing is
an offence but he does so without criminal intention.

2. The act must have been done in good faith for the
purpose of preventing or avoiding other harm to person a
property :- The main principle on which this section is based is that
causing of lesser evil in good faith may be justified to prevent
greater evil either to person or property. All measured which may
become necessary on occasion of contagious diseases, earthquakes;
famines, cloudbursts, and tsunamis etc. are covered by this section.

3. The harm must have been done in order to avert – a

greater harm :- Although the word 'greater evil' or 'lesser evil’ are
not specifically used in the phraseology of Section 81, but the
explanation to this section makes it clear that it is a question of fact
to be decided in accordance with each case as to whether the harm
to be presented or avoided was of such a nature as to justify or
excuse taking the risk of the act.

Queen Vs Dudley and Stephens (1884)

In this leading English case, the accused and Stephens were

steamer, their ship capsized in a storm, they along with a boy of
seventeen years of age managed to float on a wooden plank. They
continued to drift for many days without food and drinking water.
The land being more than a thousand miles from the mid – sea
where they were drifting, they thought on twentieth day that the
only alternative to survive from death by Starvation was to kill the
boy and eat his flesh for four days when they were rescued. On
being prosecuted for murder, they took the defence of necessity
and argued that there was no other alternative for survival. The
court rejected their plea and convicted them for murder and they
were sentenced to death. The court ruled that the defence of
necessity cannot be extended to the extent of causing death of a
person in any circumstances. The Crown however reduced their
sentence to six months imprisonment, keeping in view the tragic
circumstances in which they were placed for such long duration.

The court after discussing at length various issues involved in the

question of conversation of a man’s own life in extreme cases of
hard ships laid down following principles, viz.

1. Self-preservation is not an absolute necessity

2. No man has a right to take others life to preserve his own life,
unless it is in self-defence.

3. There is no necessity that justifies private homicide i.e. to

conserve one’s life, as distinguish from public necessity or even
necessity when it is a justification.

In Dhania Daji Vs Emperor (1868)

The accused mixed poison in his toddy knowing that it is injurious

for human consumption, but with the intention of detecting the
unknown thief who was in the habit of stealing the toddy from his
pots. Some soldiers purchased toddy from an unknown vendor and
on consuming it, suffered injury. The accused was held guilty under
Section 328 IPC and the court did not accept his plea that he mixed
the poison in toddy out of necessity to detect the toddy thief.

United States v. Holmes

In 1842, a harrowing maritime incident unfolded that would forever

raise complex legal and moral questions. It involved a longboat,
adrift in treacherous seas, carrying both passengers and crew
members who had managed to survive the harrowing sinking of
their American vessel. As the storm raged on, threatening to capsize
the already fragile boat, desperation and fear gripped the souls
aboard.

In a desperate attempt to save themselves and prevent the boat

from being swamped by towering waves, some members of the
crew made the grim decision to throw a select few passengers
overboard. This heartrending choice was based on the belief that
sacrificing a small number of lives could spare the rest and increase
the chances of survival for the majority.

When the survivors were eventually rescued, the incident sparked

an intense legal and ethical debate. In the ensuing trial, one of the
crew members was brought before the court, charged with a serious
offense. The court grappled with the question of whether the dire
circumstances at sea could justify the sacrifice of human lives.

The judicial decision ultimately held that while circumstances of

necessity might, in some cases, constitute a valid defense to a
charge of criminal homicide, there were certain conditions that
needed to be met. Fairness and equal chance were deemed crucial
factors in determining the ethical and legal implications of such
extreme actions. The court noted that, in this particular case, the
selection process for the passengers who were thrown overboard
had not been carried out fairly, for instance, by means of a
randomized lottery system.
Consequently, the crew member in question was convicted of
manslaughter, marking a significant legal precedent and
highlighting the intricate balance between the preservation of life,
the limits of self-defense, and the pursuit of justice.

This tragic maritime incident stands as a haunting reminder of the

weighty decisions individuals may face in life or death situations,
prompting us to contemplate the boundaries of our humanity when
confronted with unimaginable circumstances. It continues to serve
as a thought-provoking case study in the realms of law, ethics, and
the complexity of the human condition.

R v. Bourne

In this case, a young girl was pregnant because she was raped and
the defendant, who was a gynaecologist, had performed an
abortion, with the consent of her parents because he was of the
opinion that the rape victim could die if permitted to give birth. The
defendant was found not guilty of “unlawfully procuring a
miscarriage” following a direction from the trial judge to the jury
that the defendant did not act “unlawfully”, rather he acted in good
faith while exercising his clinical judgement.

CONSENT

The defence of consent is based on the Roman Law maxim volenti

non fit injuria which means that where person has given consent to
suffer a harm or risk, he cannot complain of any injury that flows
therefrom. Although mens rea in such cases may be present in the
form of intention or knowledge, the same is compounded by the
consent of the person who has suffered the harm. The consenting
victim may have consented to the act in question either expressly,
by words, or impliedly, through conduct. Consent is a defence to, in
theory at least, all non- fatal offences and even homicides. The law
rests on the policy that principle of individual autonomy proceeds on
the premise that every person is the best judge of his own interests
and in no circumstance will he/she consent to what he/she considers
injurious to his personal interest.

This defence of is based on the idea that if competent adults

voluntarily consented to crimes against themselves and knew what
they were consenting to, the harm emanating from the act so
caused in consequence of the consent cannot invite criminal
charges against the doer of the act. The heart of the defence is the
high value placed on individual autonomy in a free society. If
mentally competent adults want to be crime victims, so the
argument for the justification of consent goes. However, an
apparent consent is invalid where the person giving it is so young,
intoxicated or mentally disordered or retarded that his knowledge or
understanding is such that he is unable to make a rational decision
whether or not to consent. In such special cases, if the situation
demands, the consent must be obtained from the guardian or any
other person with the lawful charge of such incompetent person.

SECTION 25 BNS:Act not intended and not known to be likely

to cause death or grievous hurt, done by consent- Nothing
which is not intended to cause death, or grievous hurt, and which is
not known by the doer to be likely to cause death or grievous hurt,
is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, to any person, above eighteen years
of age, who has given consent, whether express or implied, to suffer
that harm; or by reason of any harm which it may be known by the
doer to be likely to cause to any such person who has consented to
take the risk of that harm.

Illustration.

A and Z agree to fence with each other for amusement. This

agreement implies the consent of each to suffer any harm which, in
the course of such fencing, may be caused without foul play; and if
A, while playing fairly, hurts Z, A commits no offence.

SECTION 26 BNS: Act not intended to cause death, done by

consent in good faith for person's benefit- Nothing, which is
not intended to cause death, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause, or be
known by the doer to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent,
whether express or implied, to suffer that harm, or to take the risk
of that harm.

Illustration.

A, a surgeon, knowing that a particular operation is likely to cause

the death of Z, who suffers under the painful complaint, but not
intending to cause Z’s death, and intending, in good faith, Z’s
benefit, performs that operation on Z, with Z’s consent. A has
committed no offence.

SECTION 27 BNS: Act done in good faith for benefit of child

or person of unsound mind, by, or by consent of guardian-
Nothing which is done in good faith for the benefit of a person under
twelve years of age, or person of unsound mind, by, or by consent,
either express or implied, of the guardian or other person having
lawful charge of that person, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause or be
known by the doer to be likely to cause to that person:
Provided that this exception shall not extend to––
(a) the intentional causing of death, or to the attempting to cause
death;
(b) the doing of anything which the person doing it knows to be
likely to cause death, for any purpose other than the preventing of
death or grievous hurt, or the curing of any grievous disease or
infirmity;

(c) the voluntary causing of grievous hurt, or to the attempting to

cause grievous hurt, unless it be for the purpose of preventing
death or grievous hurt, or the curing of any grievous disease or
infirmity;

(d) the abetment of any offence, to the committing of which offence

it would not extend.

Illustration.

A, in good faith, for his child’s benefit without his child’s consent,
has his child cut for the stone by a surgeon knowing it to be likely
that the operation will cause the child’s death, but not intending to
cause the child’s death. A is within the exception, in as much as his
object was the cure of the child.

SECTION 28 BNS: Consent known to be given under fear or

misconception- A consent is not such a consent as is intended by
any section of this Sanhita,–– (a) if the consent is given by a person
under fear of injury, or under a misconception

of fact, and if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such fear or
misconception; or

(b) if the consent is given by a person who, from unsoundness of

mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or

(c) unless the contrary appears from the context, if the consent is
given by a person who is under twelve years of age.

SECTION 29 BNS: Exclusion of acts which are offences

independently of harm caused- The exceptions in sections 25, 26
and 27 do not extend to acts which are offences independently of
any harm which they may cause, or be intended to cause, or be
known to be likely to cause, to the person giving the consent, or on
whose behalf the consent is given.

Illustration.
Causing miscarriage (unless caused in good faith for the purpose of
saving the life of the woman) is an offence independently of any
harm which it may cause or be intended to cause to the woman.
Therefore, it is not an offence “by reason of such harm”; and the
consent of the woman or of her guardian to the causing of such
miscarriage does not justify the act.

SECTION 30 BNS: Act done in good faith for benefit of a person

without consent- Nothing is an offence by reason of any harm which
it may cause to a person for whose benefit it is done in good faith,
even without that person’s consent, if the circumstances are such
that it is impossible for that person to signify consent, or if that
person is incapable of giving consent, and has no guardian or other
person in lawful charge of him from whom it is possible to obtain
consent in time for the thing to be done with benefit:

Provided that this exception shall not extend to––

(a) the intentional causing of death, or the attempting to cause

death;

(b) the doing of anything which the person doing it knows to be

likely to cause death, for any purpose other than the preventing of
death or grievous hurt, or the curing of any grievous disease or
infirmity;

(c) the voluntary causing of hurt, or to the attempting to cause hurt,

for any purpose other than the preventing of death or hurt;

(d) the abetment of any offence, to the committing of which offence

it would not extend.

Illustrations.
(1) Z is thrown from his horse, and is insensible. A, a surgeon, finds
that Z requires to

Consent known to be given under fear or misconception.

Exclusion of acts which are offences independently of harm caused.

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

Communication made in good faith.

Act to which a person is compelled by threats.

be trepanned. A, not intending Z’s death, but in good faith, for Z’s
benefit, performs the trepan before Z recovers his power of judging
for himself. A has committed no offence.
(2) Z is carried off by a tiger. A fires at the tiger knowing it to be
likely that the shot may kill Z, but not intending to kill Z, and in good
faith intending Z’s benefit. A’s bullet gives Z a mortal wound. A has
committed no offence.

(3) A, a surgeon, sees a child suffer an accident which is likely to

prove fatal unless an operation be immediately performed. There is
no time to apply to the child’s guardian. A performs the operation in
spite of the entreaties of the child, intending, in good faith, the
child’s benefit. A has committed no offence.

(4) A is in a house which is on fire, with Z, a child. People below hold

out a blanket. A drops the child from the house top, knowing it to be
likely that the fall may kill the child, but not intending to kill the
child, and intending, in good faith, the child’s benefit. Here, even if
the child is killed by the fall, A has committed no offence.

Explanation.—Mere pecuniary benefit is not benefit within the

meaning of sections 26, 27 and this section.

SECTION 31 BNS: Communication made in good faith- No

communication made in good faith is an offence by reason of any
harm to the person to whom it is made, if it is made for the benefit
of that person.

Illustration.

A, a surgeon, in good faith, communicates to a patient his opinion

that he cannot live. The patient dies in consequence of the shock. A
has committed no offence, though he knew it to be likely that the
communication might cause the patient’s death.

SECTION 32 BNS: Act to which a person is compelled by threats-

Except murder, and offences against the State punishable with
death, nothing is an offence which is done by a person who is
compelled to do it by threats, which, at the time of doing it,
reasonably cause the apprehension that instant death to that
person will otherwise be the consequence:

Provided that the person doing the act did not of his own accord, or
from a reasonable apprehension of harm to himself short of instant
death, place himself in the situation by which he became subject to
such constraint.

Explanation 1.—A person who, of his own accord, or by reason of a

threat of being beaten, joins a gang of dacoits, knowing their
character, is not entitled to the benefit of this exception, on the
ground of his having been compelled by his associates to do
anything that is an offence by law.
Explanation 2.—A person seized by a gang of dacoits, and forced, by
threat of instant death, to do a thing which is an offence by law; for
example, a smith compelled to take his tools and to force the door
of a house for the dacoits to enter and plunder it, is entitled to the
benefit of this exception.

Consent plays a very important role in fixing the liability in criminal

law for the reason that consent has role of exonerating or
extenuating a person from the criminal liability. Sections 87-92 of
the Indian Penal Code provide for and incorporate those
circumstances under which the harm caused to the consenting
individuals may be compounded or condoned. The actual provisions
which recognise this defence in various forms are sections 87, 88,
89 and 92; while as section 90, section 91 and explanation to
section 92 provide for the principles guiding these provisions. An
adult person may consent to any harm against himself (which is not
though grievous hurt or murder) {Section 87}. Similarly any act
resulting in harm may be done against a consenting person, in
absence of an intention to cause death, if the act is done for the
benefit of the person consenting and in good faith {Section 88}.
And in case the person against whom the act sought to done which
might result in an incidental harm, is incapable of giving consent by
reason of unsoundness of mind or infancy, the consent may be
given by the guardian of such person or any other person having the
lawful charge of the person, provided the act was done in good faith
and for the benefit of such insane or minor {Section 89}. In such a
case the act may be done either by the guardian himself or by any
other person with the consent of such guardian or person having the
lawful charge. In extraordinary circumstances a person might be
incapable of giving the consent (e.g. a person in coma, or an
unconscious person) and it may further be impossible to obtain the
requisite consent from the guardian or other person with lawful
charge of such person without a delay which otherwise would defeat
the purpose of the act, sought to be done for the benefit of such
person, the requirement of consent can be done away with—those
cases are the instances act done in absence of consent {Section
92}. These all provisions of the consent are guided by Section 90,
Section 91 and Explanation of Section 92.

Conditions needed to plead consent as a defence

Section 87, 88, 89 and 90 of the Code deals with various conditions
which are needed to plead consent as a defence. These are
mentioned below:

1. Person has consented for the risk.

2. The person must be above the age of 12 years unless
the contrary appears from the context and must not be of
 unsound mind, if yes then the consent must be given by
guardians or the person in charge of them on their behalf.
3. Consent be given under no fear or misconception of
facts.
4. The said consent must be made expressly or impliedly.
5. The consent was not intended to cause death or
grievous hurt.

Express and Implied Consent

Both express and implied consent are recognized under the Section.
As long as there is consent and it was freely given, the number of
words or specific articulation of the said consent is not necessary.

The term ‘express consent’ as far as criminal law is concerned is

used to give permission for something either verbally or in writing.
When your friend asked you to rent your flat for a day and you said
‘Yes’. Then, it is your express consent given verbally to him.

X, had an operation of his backbone. But before the operation, the

doctor told him to sign a paper in which it was expressly mentioned
that operation might cause his death. X signed the paper as he had
an unbearable pain. X died. The doctor will not be liable.

The term ‘implied consent’ in criminal law is used to obtain either

(1) consent by acts and conducts, or (2) consent presumed.

X, on being friendly terms with Z, goes into his wardrobe in his absence and takes
away his shirt without Z’s express consent for the purpose of attending a party
tonight, and the intention of returning it. X has not committed the offence of theft as
he had an impression of Z‘s implied consent though Z has never given or in any way
signified the same. It was presumed consent.

CASE LAWS

Dasrath Paswan v. State (1957)

In this case, the accused has failed at an examination for three

consecutive years. By disappointing these continuous failures he
decided to end his life. He discussed his decision with his wife who
was a literate woman of 19 years of age. His wife said to kill her first
and then kill himself. Accordingly, the accused killed his wife first
and was arrested before he could kill himself. It was held that the
wife had not given her consent under the fear of injury or
misconception of fact. Hence, the accused would not be liable for
murder.

Baboolun Hijrah v. Emp. (1866)

In this case, a man submitted himself to emasculation. It was

performed neither by a skilful hand nor in the least dangerous way
and resulted in the death from the injury. Before the Court the
accused pleaded that he did know that the practice of emasculation
was forbidden by law and also he acted under the free consent of
the deceased. The court held the accused not guilty.

Sukaroo Kaviraj v. The Empress (1887)

In this case, Mr. Kaviraj, a qualified doctor performed an operation

of internal piles by cutting the vital part with an ordinary knife. The
patient died because of copious bleeding. He was prosecuted for
causing death by rash and negligent act. The Court held him liable
as he did not act in good faith.

ACT CAUSING SLIGHT HARM

SECTION 33 BNS: Act causing slight harm- Nothing is an

offence by reason that it causes, or that it is intended to cause, or
that it is known to be likely to cause, any harm, if that harm is so
slight that no person of ordinary sense and temper would complain
of such harm.

SECTION 95 IPC: Nothing is an offence by reason that it causes, or

that it is intended to cause, or that it is known to be likely to cause,
any harm, if that harm is so slight that no person of ordinary sense
and temper would complain of such harm.

In Biswabahan v. Gopen Chandra (1967), the accused felled some green plants and
trees illegally by accident and ulterior motive and turned those trees into firewood. He
later paid Rs. 50 as compensation to the authorities and compounded the crime. The
issue arose here whether such compounding of an offence is valid in the eyes of the
law. It was argued on behalf of the petitioner that the offence committed was of such
a trivial nature that compensation paid by the accused person is adequate enough to
resolve it and put an end to the matter without any adjudication from the court of law.

PRIVATE DEFENCE

Nature of The Right

It is the first duty of man to help himself. The right of self-defence

must be fostered in the Citizens of every free country. The right is
recognised in every system of law and its extent varies in the
inverse ratio to the capacity of the state to protect life and property
of the subject( citizens). It is the primary duty of the state to protect
the life and property of the individuals, but no state, no matter how
large its resources, can afford to depute a policeman to dog the
steps of every rouge in the country. Consequently this right has
been given by the state to every citizen of the country to take law
into his own hand for their safety. One thing should be clear that,
there is no right of private defence when there is time to have
recourse to the protection of police authorities. The right is not
dependent on the actual criminality of the person resisted. It
depends solely on the wrongful or apparently wrongful character of
the act attempted, if the apprehension is real and reasonable, it
makes no difference that it is mistaken. An act done in exercise of
this right is not an offence and does not, therefore, give rise to any
right of private defence in return.
Limitations to Right to Private Defence

While the right to private defence is an important aspect of criminal

law, it is not an absolute right. In order to prevent the misuse of this
right, there are certain limitations that have been imposed by the
law.

These limitations ensure that the force used in self-defence is

reasonable and proportionate to the threat faced, and that innocent
individuals are not harmed in the process. Understanding these
limitations is essential to ensure that the right to private defence is
used judiciously and responsibly.

They are as follows:

1. The amount of power used must be proportional to the

threat: The individual defending themselves must not use more
force than is required to repel the assault. For example, if someone
assaults another person with a fist, the defence cannot react with a
deadly tool because that would be excessive force.
2. The right to private defence applies only while the
danger exists: Once the threat has passed, the right to private
defence expires. As a result, if someone attacks another person and
the attack is repulsed, the defender cannot use force against the
assailant because the danger has passed.
3. The individual exercising their right to private defence
must have a reasonable conviction that such force is
required to protect themselves or others: this means that they
cannot use force based on a simple suspect or conjecture of an
assault. A reasonable perception that an attack is impending or
underway is required.
4. The right to private defence does not include the use
of deadly force unless there is a threat of death or serious
bodily harm: This means that a person cannot use lethal force
unless their life is in peril or they suffer serious bodily harm.
5. Except in instances of imminent mortality or serious
bodily harm, the right to private defence does not include
the use of lethal force: This means that unless a person’s life is in
peril or they suffer grave harm, they cannot use deadly force. For
example, if someone assaults another person with a knife, the
defender may defend themselves with a firearm because a dagger
can cause serious harm or death.
6. The person using the right to private defence must not
act in a cruel or unusual manner, which can cause harm or
injury beyond what is necessary to repel the attack:This
means that the defender cannot cause unnecessary harm or injury
to the attacker once the threat has been repelled.
7. The person using the right to private defence cannot
use this right to justify pre-emptive strikes, revenge, or
retaliation: This means that the defender cannot attack an
individual based on a previous threat or perceived threat.

Exceptions to the Right of Private Defence

1. When the person protecting themselves or others is the

perpetrator or initiator of the attack. The right to private defence
cannot be used to excuse the use of force in such instances.
2. When a person exercising their right to private defence goes
beyond the scope of their defence and causes more damage or
injury than is required to resist the attack.In such instances, the
individual may be made liable for the damage done.
3. When a person exercising his or her right to private defence
causes harm or injury to a third party who was not engaged in the
assault, the person may be held liable for the harm caused to the
third party.
4. When a person exercising their right to self-defence employs
lethal force in a circumstance where it was not required to repel the
assault, the person may be held liable for the use of excessive force.

Sections 34 to 44 of Chapter III of Bharatiya Nyaya Sanhita

(BNS) describe the provision of private defence. These sections not
only define the provisions of private defence, but also outline the
circumstances under which a person can use force to protect
themselves, their property, or others from external harm.

Section 34- Things done in private defence - Nothing is an

offence which is done in the exercise of the right of private defence.

IPC Section 96. Things done in private defence:Nothing is an

offence, which is done in the exercise of the right of private defence.

Right of private defence cannot be said to be an offence in return.

The right of self-defence under Section 96 is not absolute but is
clearly qualified by Section 99 which says that the right in no case
extends to the inflicting of more harm than it is necessary for the
purpose of defence. It is well settled that in a free fight, no right of
private defence is available to either party and each individual is
responsible for his own acts. While it is true that law does not
expect from the person, whose life is placed in danger, to weigh,
with nice precision, the extent and the degrees of the force which
he employs in his defence, it also does not countenance that the
person claiming such a right should resort to force which is out of all
proportion to the injuries received or threatened and far in excess of
the requirement of the case. The onus of proving the right of private
defence is upon the person who wants to plead it. But an accused
may be acquitted on the plea of the right of private defence even
though he has not specifically pleaded it.

Courts are empowered to exempt in such cases. It must be borne in

mind that the burden of proving an exception is on the accused. It is
not the law that failure to setup such a defence would foreclose this
right to rely on the exception once and for all. It is axiomatic that
burden on the accused to prove any fact can be discharged either
through defence evidence or even through prosecution evidence by
showing a preponderance of probability. It is true that no case of
right of private defence of person has been pleaded by the accused
not put forth in the cross-examination to the eye-witnesses but it is
well settled that if there is a reasonable probability of the accused
having acted in exercise of right of private defence, the benefit of
such a plea can still be given to them.

The right of private defence, as the name suggests, is an act of

defence and not of an offence. Consequently, it cannot be allowed
to be used as a shield to justify an aggression. This requires a very
careful weighing of the facts and circumstances of each case to
decide as to whether the accused had in fact acted under this right.
Assumptions without any reasonable basis on the part of the
accused about the possibility of an attack do not entitle him to
exercise this right. It was held in a case that the distance between
the aggressor and the target may have aa bearing on the question
whether the gesture amounted to assault. No precise yardstick can
be provided to fix such a distance, since it depends upon the
situation, the weapon used, the background and the degree of the
thirst to attack etc.

Thangavel case:
The general proverb or adage that “necessity knows no law” does
not find a place in modern jurisprudence. The right of self-
preservation is inherent in every person but to achieve that end
nothing could be done which militates against the right of another
person. In the other words, “society places a check on the struggle
for existence where the motive of self-preservation would dictate a
definite aggression on an innocent person”.

Kamparsare vs Putappa:
Where a boy in a street was raising a cloud of dust and a passer-by
therefore chased the boy and beat him, it was held that the passer-
by committed no offence. His act was one in exercise of the right of
private defence.

Section 35- Right of private defence of body and of property: Every person
has a right, subject to the restrictions contained in section 37, to
defend—
(a) his own body, and the body of any other person, against any offence affecting the
human body;
(b) the property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery,
mischief or criminal trespass, or which is an attempt to commit theft, robbery,
mischief or criminal trespass.
IPC Section 97.Right of private defence of the body and of
Property:-
Every person has a right, subject to the restrictions contained in
Section 99, to defend-
First-His own body, and the body of any other person, against any
offence affecting the human body;
Secondly-The property, whether movable or immovable, of himself
or of any other person, against any act which is an offence falling
under the definition of theft, robbery, mischief or criminal trespass,
or which is an attempt to commit theft, robbery, mischief for
criminal trespass.

This Section limits exercise of the right of private defence to the

extent of absolute necessity. It must not be more than necessary for
defending aggression. There must be reasonable apprehension of
danger that comes from the aggressor in the form of aggression.
This Section divides the right of private defence into two parts, i.e.
the first part deals with the right of private defence of person, and
the second part with the right of private defence of property. To
invoke the plea of right of private defence there must be an offence
committed or attempted to be committed against the person
himself exercising such a right, or any other person. The question of
the accrual of the right of the private defence, however, does not
depend upon an injury being caused to the man in question. The
right could be exercised if a reasonable apprehension of causing
grievous injury can be established. If the threat to person or
property of the person is real and immediate, he is not required to
weigh in a golden scale the kind of instrument and the force which
he exerts on the spur of the moment. The right of private defence
extends not only to the defence of one’s own body and property, as
under the English law, but also extends to defending the body and
property of any other person.
Thus under section 97 even a stranger can defend the person or
property of another person and vice versa, whereas under the
English law there must be some kind of relationship existing such as
father and son, husband and wife, etc., before this right may be
successfully exercised. A true owner has every right to dispossess or
throw out a trespasser, while the trespasser is in the act or process
of trespassing but has not accomplished his mission; but this right is
not available to the true owner if the trespasser has been successful
in accomplishing possession and his success is known by the true
owner. In such circumstances the law requires that the true owner
should dispossess the trespasser by taking recourse to the remedies
available under the law. The onus of establishing plea of right of
private defence is on the accused though he is entitled to show that
this right is established or can be sustained on the prosecution
evidence itself. The right of private defence is purely preventive and
not punitive or retributive. Once it is held that the party of the
accused were the aggressors, then merely because a gun was used
after some of the party persons had received several injuries at the
hands of those who were protecting their paddy crop and resisting
the aggression of the party of the accused, there can be no ground
for taking the case out of Section 302, I.P.C., if otherwise the injuries
caused bring the case within the definition of murder.

Chotelal vs State:
B was constructing a structure on a land subject to dispute between
A and B. A was trying to demolish the same. B therefore assaulted A
with a lathi. It was held that A was responsible for the crime of
waste and B had therefore a right to defend his property.

Parichhat vs State of M.P:

A lathi blow on his father’s head, his son, the accused, gave a blow
with a ballam on the chest of the deceased. The court decided that
the accused has obviously exceeded his right of private defence.

Section 36-Right of private defence against act of a person of unsound mind,

etc: When an act, which would otherwise be a certain offence, is not
that offence, by
reason of the youth, the want of maturity of understanding, the
unsoundness of mind or the intoxication of the person doing that
act, or by reason of any misconception on the part of that person,
every person has the same right of private defence against that act
which he would have if the act were that offence.
Illustrations.
(a) Z, a person of unsound mind, attempts to kill A; Z is guilty of no
offence. But A has the same right of private defence which he would
have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter. Z,
in good faith,taking A for a house-breaker, attacks A. Here Z, by
attacking A under this misconception,commits no offence. But A has the
same right of private defence against Z, which he would have if Z were not acting
under that misconception.

IPC Section 98. Right of private defence against the act of a

person of unsound mind, etc:When an act, which would otherwise
be a certain offence, is not that offence, by reason of the youth, the
want of maturity of understanding, the unsoundness of mind or the
intoxication of the person doing that act, or by reason of any
misconception on the part of that person, every person has the
same right of private defence against that act which he would have
if the act were that offence.

Illustrations:-
# Z, under the influence of madness, attempts to kill A; Z is guilty of
no offence. But A has the same right of private defence which he
would have if Z were sane.
# A enters by night a house which he is legally entitled to enter Z, in
good faith, taking A for a house breaker, attacks A. Here Z, by
attacking A under this misconception, commits no offence. But A
has the same right of private defence against Z, which he would
have if Z were not acting under that misconception.

This Section lay down that for the purpose of exercising the right of
private defence, physical or mental capacity of the person against
whom it is exercised is no bar. In other words, the right of private
defence of body exists against all attackers, whether with or without
mens rea. The above mentioned illustration are pointing a fact that
even if an attacker is protected by some exception of law, that does
not diminish the danger and risk created from his acts. That is why
the right of private defence in such cases also can be exercised, or
else it would have been futile and meaningless.

Section 37- Acts against which there is no right of private defence: (1) There is
no right of private defence,––
(a) against an act which does not reasonably cause the apprehension of death
or of grievous hurt, if done, or attempted to be done, by a public servant acting in
good faith under colour of his office, though that act, may not be strictly justifiable by
law;
(b) against an act which does not reasonably cause the apprehension of death
or of grievous hurt, if done, or attempted to be done, by the direction of a public
servant acting in good faith under colour of his office, though that direction may not
be strictly justifiable by law;
(c) in cases in which there is time to have recourse to the protection of the public
authorities.
(2) The right of private defence in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defence.
Explanation 1.—A person is not deprived of the right of private defence against an act
done, or attempted to be done, by a public servant, as such, unless he knows or has
reason to believe, that the person doing the act is such public servant.
Explanation 2.—A person is not deprived of the right of private defence against an act
done, or attempted to be done, by the direction of a public servant, unless he knows,
or has reason to believe, that the person doing the act is acting by such direction, or
unless such person states the authority under which he acts, or if he
has authority in writing, unless he produces such authority, if
demanded.

IPC Section 99. Act against which there is no right of private

defence: There is no right of private defence against an act which
does not reasonable cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by a public servant acting in
good faith under colour of his office, though that act, may not be
strictly justifiable by law.
There is no right of private defence against an act which does not
reasonable cause the apprehension of death or of grievous hurt, if
done, or attempted to be done, by the direction of a public servant
acting in good faith under colour of his office, though that direction
may not be strictly justifiable by law. There is no right of private
defence in cases in which there is time to have recourse to the
protection of the public authorities.
Extent to which the right may be exercised:--The right to Private
defence in no case extends to the inflicting of more harm that it is
necessary to inflict for the purpose of defence.

Explanation 1: - A person is not deprived of the right of private

defence against an act done, or attempted to be done, by a public
servant, as such, unless he knows or has reason to believe, that the
person doing the act is such public servant.

Explanation 2: - A person is not deprived of the right of private

defence against an act done, or attempted to be done, by the
direction of a public servant, unless he knows, or has reason to
believe, that the person doing the act is acting by such direction, or
unless such person states the authority under which he acts, or if he
has authority in writing, unless he produces such, demanded.
Section 99 lays down that the conditions and limits within which the
right of private defence can be exercised. The section gives a
defensive right to a man and not an offensive right. That is to say, it
does not arm a man with fire and ammunition, but encourage him to
help himself and others, if there is a reasonable apprehension of
danger to life and property. The first two clauses provide that the
right of private defence cannot be invoked against a public servant
or a person acting in good faith in the exercise of his legal duty
provided that the act is not illegal. Similarly , clause three restricts
the right of private defence, if there is time to seek help of public
authorities. And the right must be exercised in proportion to harm to
be inflicted. In other words , there is no right of private defence :
# Against the acts of a public servant; and
# Against the acts of those acting under their authority or direction;
# Where there is sufficient time for recourse to public authorities;
and
#The quantam of harm that may be caused shall in no case be in
excess of harm that may be necessary for the purpose of defence.

The protection to public servants is not absolute. It is subject to

restrictions. The acts in either of these clauses must not be of
serious consequences resulting in apprehension of causing death or
of grievous hurt which would deprive one of his right of private
defence.

To avail the benefit of those clauses ( i ) the act done or attempted

to be done by a public servant must be done in good faith; ( ii ) the
act must be done under the colour of his office; and ( iii ) there must
be reasonable grounds for believing that the acts were done by a
public servant as such or under his authority in the exercise of his
legal duty and that the act is not illegal. Good faith plays a vital role
under this section. Good faith does not require logical infallibility but
due care and caution as defined under Section 52 of the code.

Emperor vs Mammun:
The accused, five in number, went out on a moonlit night armed
with clubs, and assaulted a man who was cutting rice in their field.
The man received six distinct fractures of the skull-bones besides
other wounds and died on the spot. The accused on being charged
with murder pleaded right of private defence of their property. Held
under Section 99 there is no right of private defence in cases where
there is time to have recourse to the protection of the public
authorities.
Public prosecute vs Suryanarayan:
On search by customs officers certain goods were found to have
been smuggled from Yemen into Indian Territory. In course of
search the smugglers attacked the officers and injured them. They
argued that the officers had no power to search as there was no
notification declaring Yemen a foreign territory under Section 5 of
the Indian Tariff Act. It was held, that the officers had acted in good
faith and that the accused had no right of private defence.

Section 38- When right of private defence of body extends to causing

death:The right of private defence of the body extends, under the restrictions
specified in section 37, to the voluntary causing of death or of any other harm to the
assailant, if the offence which occasions the exercise of the right be of any of the
descriptions hereinafter enumerated, namely:—
(a) such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying unnatural lust;
(e) an assault with the intention of kidnapping or abducting;
(f) an assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be unable to
have recourse to the public authorities for his release;
(g) an act of throwing or administering acid or an attempt to throw or administer acid
which may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such act.
IPC Section100. When the right of private defence of the body
extends to causing death:The right of private defence of the body
extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to
the assailant, if the offence which occasions the exercise of the right
be of any of the descriptions hereinafter enumerated, namely:--
First-Such an assault as may reasonably cause the apprehension
that death will otherwise be the consequence of such assault;

Secondly-Such an assault as may reasonably cause the

apprehension that grievous hurt will otherwise be the consequence
of such assault;
Thirdly-An assault with the intention of committing rape;
Fourthly-An assault with the intention of gratifying unnatural lust;
Fifthly-An assault with the intention of kidnapping or abducting;
Sixthly-An assault with the intention of wrongfully confining a
person, under circumstances which may reasonably cause him to
apprehend that he will be unable to have recourse to the public
authorities for his release.

To invoke the provisions of sec 100, I.P.C., four conditions must

exist:
# That the person exercising the right of private defense must be
free from fault in bringing about the encounter.
# There must be present an impending peril to life or of great bodily
harm.
# There must be no safe or reasonable mode of escape by retreat;
# There must have been a necessity for taking the life.

Moreover before taking the life of a person four cardinal conditions

must be present:
(a) the accused must be free from fault in bringing the encounter;
(b) presence of impending peril to life or of great bodily harm, either
real or apparent as to create an honest belief of existing necessity;
(c) no safe or reasonable mode of escape by retreat; and
(d) a necessity for taking assailant’s life.

Yogendra Moraji vs. State:

The supreme court through Sarkaria, J. discussed in detail the extent
and the limitations of the right of private defence of body. One of
the aspects emphasized by the court was that there must be no safe
or reasonable mode of escape by retreat for the person confronted
with an impending peril to life or of grave bodily harm except by
inflicting death on the assailant. This aspect has create quite a
confusion in the law as it indirectly suggests that once should first
try to see the possibility of a retreat than to defend by using force
which is contrary to the principle that the law does not encourage
cowardice on the part of one who is attacked. This retreat theory in
fact is an acceptance of the English common law principle of
defence of body or property under which the common law courts
always insisted to look first as to whether the accused could prevent
the commission of crime against him by retreating.

Nand kishore lal case:

Accused who were Sikhs, abducted a Muslim married woman and
converted her to Sikhism. Nearly a year after the abduction, the
relatives of the woman’s husband came and demanded her return
from the accused. The latter refused to comply and the woman
herself expressly stated her unwillingness to rejoin her Muslim
husband. Thereupon the husband’s relatives attempted to take her
away by force. The accused resisted the attempt and in so doing
one of them inflicted a blow on the head of the woman’s assailants,
which resulted in the latter’s death. It was held that the right of the
accused to defend the woman against her assailants extended
under this section to the causing of death and they had, therefore,
committed no offence.

Section 39- When such right extends to causing any harm other than death: If
the offence be not of any of the descriptions specified in section 38,
the right of private defence of the body does not extend to the
voluntary causing of death to the assailant, but does extend, under
the restrictions specified in section 37, to the voluntary causing to
the assailant of any harm other than death.

IPC Section101. When such right extends to causing any harm

other than death:If the offence be not of any of the descriptions
enumerated in the last preceding section, the right of private
defence of the body does not extend to the voluntary causing of
death to the assailant, but does extend, under the restrictions
mentioned in Section 99, to the voluntary causing to the assailant of
any harm other than death.

Mohinder Pal Jolly v. State of Punjab:-

Workers of a factory threw brickbats and the factory owner by a
shot from his revolver caused the death of a worker, it was held that
this section did not protect him as there was no apprehension of
death or grievous hurt.

Section 40- Commencement and continuance of right of private defence of body:

The right of private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises from an
attempt or threat to commit the offence though the offence may not
have been committed; and it continues as long as such
apprehension of danger to the body continues.

IPC Section102. Commencement and continuance of the right of

private defence of the body: The right of private defence of the body
commences as soon as a reasonable apprehension of danger to the
body arises from an attempt or threat to commit the offence though
the offence may not have been committed; and it continues as long
as such apprehension of danger to the body continues. The
apprehension of danger must be reasonable, not fanciful. For
example, one cannot shoot one’s enemy from a long distance, even
if he is armed with a dangerous weapon and means to kill. This is
because he has not attacked you and therefore there is no
reasonable apprehension of attack. In other words, there is no
attack and hence no right of private defence arises. Moreover the
danger must be present and imminent.

Kala Singh case:-

The deceased who was a strong man of dangerous character and
who had killed one person previously picked up a quarrel with the
accused, a weakling. He threw the accused on the ground, pressed
his neck and bit him. The accused when he was free from the
clutches of this brute took up a light hatchet and gave three blows
of the same on the brute’s head. The deceased died three days
later. It was held that the conduct of the deceased was aggressive
and the circumstances raised a strong apprehension in the mind of
the accused that he would be killed otherwise. The apprehension,
however, must be reasonable and the violence inflicted must be
proportionate and commensurate with the quality and character of
the act done. Idle threat and every apprehension of a rash and timid
mind will not justify the exercise of the right of private defence.

Section 41- When right of private defence of property extends to causing

death: The right of private defence of property extends, under the
restrictions specified insection 37, to the voluntary causing of death
or of any other harm to the wrong-doer, if the offence, the
committing of which, or the attempting to commit which, occasions
the exercise of the right, be an offence of any of the descriptions
hereinafter enumerated, namely:—
(a) robbery;
(b) house-breaking after sunset and before sunrise;
(c) mischief by fire or any explosive substance committed on any
building, tent
or vessel, which building, tent or vessel is used as a human
dwelling, or as a place for
the custody of property;
(d) theft, mischief, or house-trespass, under such circumstances as
may reasonably cause apprehension that death or grievous hurt will
be the consequence,if such right of private defence is not exercised.

IPC Section103. When the right of private defence of property

extends to causing death:
The right of private defence of property extends, under the
restrictions mentioned in Section 99, to the voluntary causing of
death or of any other harm to the wrong-doer, if the offence, the
committing of which, or the attempting to commit which, occasions
the exercise of the right, be an offence of any of the descriptions
hereinafter enumerated, namely;
First-Robbery;
Secondly-House-breaking by night;
Thirdly-Mischief by fire committed on any building, tent or vessel,
which building, tent of vessel is used as a human dwelling, or as a
place for the custody of property;
Fourthly-Theft, mischief, or house-trespass, under such
circumstances as may reasonably cause apprehension that death or
grievous hurt will be the consequence, if such right of private
defence is not exercised.

IPC Section 103 provides the right of private defence to the property
whereas IPC Section 100 is meant for exercising the right of private
defence to the body of a person. It justifies homicide in case of
robbery, house breaking by night, arson and the theft, mischief or
house trespass which cause apprehension or grievous harm. If a
person does not have possession over the property, he cannot claim
any right of private defence regarding such property. Right to
dispossess or throw out a trespasser is not available to the true
owner if the trespasser has been successful in accomplishing his
possession to his knowledge. This right can be only exercised
against certain criminal acts which are mentioned under this
section.

Mithu Pandey v. State:

Two persons armed with ‘tangi’ and ‘danta’ respectively were
supervising collection of fruit by labourers from the trees which
were in the possession of the accused persons who protested
against the illegal act. In the altercation that followed one of the
accused suffered multiple injuries because of the assault. The
accused used force resulting in death. The Patna High Court held
that the accused were entitled to the right of private defence even
to the extent of causing death as the forth clause of this section was
applicable.

Jassa Singh v. State of Haryana:

The Supreme court held that the right of private defence of property
will not extend to the causing of the death of the person who
committed such acts if the act of trespass is in respect of an open
land. Only a house trespass committed under such circumstances as
may reasonably caused death or grievous hurt is enumerated as
one of the offences under Section 103.

Section 42- When such right extends to causing any harm other than death:If
the offence, the committing of which, or the attempting to commit
which occasions the exercise of the right of private defence, be
theft, mischief, or criminal trespass, not of any of the descriptions
specified in section 41, that right does not extend to the voluntary
causing of death, but does extend, subject to the restrictions
specified in section 37, to the voluntary causing to the wrong-doer
of any harm other than death.

Section104 IPC. When such right extends to causing any harm

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

This Section cannot be said to be giving a concession to the accused

to exceed their right of private defence in any way. If anyone
exceeds the right of private defence and causes death of the
trespasser, he would be guilty under Section 304, Part II. This
Section is corollary to Section 103 as Section 101 is a corollary to
Section 100.
V.C.Cheriyan v. State:
The three deceased person along with some other person had
illegally laid a road through the private property of a Church. A
criminal case was pending in court against them. The three accused
persons belonging to the Church put up barricades across this road
with a view to close it down. The three deceased who started
removing these barricades were stabbed to death by the accused.
The Kerela High Court agreed that the Church people had the right
of private defence but not to the extent of causing death of
unarmed deceased person whose conduct did not fall under Section
103 of the Code.

Section 43- Commencement and continuance of right of private defence of

property: The right of private defence of property,-

(a) commences when a reasonable apprehension of danger to the

property
commences;

(b) against theft continues till the offender has effected his retreat
with the property or either the assistance of the public authorities is
obtained, or the property has been recovered;

(c) 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;

(d) against criminal trespass or mischief continues as long as the

offender continues in the commission of criminal trespass or
mischief;

(e) against house-breaking after sunset and before sunrise

continues as long as the house-trespass which has been begun by
such house-breaking continues.

IPC Section105. Commencement and continuance of the right of

private defence of property: The Right of private defence of
property commences when a reasonable apprehension of danger to
the property commences. The right of private defence of property
against theft continues till the offender has effected his retreat with
the property or either the assistance of the public authorities is
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 of 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 criminal trespass or mischief.
# The right of private defence of property against house-breaking
by night continues as long as the house-trespass which has been
begun by such house-breaking continues.

This right can be exercised if only there is no time to have recourse

of public authorities. As soon as the trespass is accomplished
successfully the true owner of the property loses right of private
defence to protect property. No right of private defence to protect
property is available to a trespasser when disputed land is not at all
in possession of him.

Section 44- Right of private defence against deadly assault when there is risk of
harm to innocent person: If in the exercise of the right of private
defence against an assault which reasonably causes the
apprehension of death, the defender be so situated that he cannot
effectually exercise that right without risk of harm to an innocent
person, his right of private defence extends to the running of that
risk.

Illustration.

A is attacked by a mob who attempt to murder him. He cannot

effectually exercise his right of private defence without firing on the
mob, and he cannot fire without risk of harming young children who
are mingled with the mob. A commits no offence if by so firing he
harms any of the children.

IPC Section106. Right of private defence against deadly assault

when there is risk of harm to innocent person:-
If in the exercise of the right of private defence against an assault
which reasonably causes the apprehension of death, the defender
be so situated that he cannot effectually exercise that right without
risk of harm to an innocent person his right or private defence
extends to the running of that risk.

Illustration
A is attacked by a mob who attempt to murder him. He cannot
effectually exercise his right of private defence without firing on the
mob, and he cannot fire without risk of harming young children who
are mingled with the mob. A commits no offence if by so firing he
harms any of the children.

This section removes an impediment in the right of private defence.

The impediment is the doubt in the mind of the defender as to
whether he is entitled to exercise his right even when there is a
possibility of some innocent persons being harmed by his act. The
Sections says that in the case of an assault reasonably causing an
apprehension of death, if the defender is faced with such a situation
where there exists risk of harm to an innocent person, there is no
restriction on him to exercise his right of defence and he is entitled
to run that risk.