GENERAL EXCEPTIONS

Lecture No. 22 -26

 INTRODUCTION
• Chapter IV of the Indian Penal Code deals with the general
exceptions to criminal liability.
• Secs. 76 to 106
• The onus of proving exceptions lies on the accused, who has
to prove the circumstances bringing the case within any of the
general exceptions. The court shall presume the absence of
such circumstances. - Section 105 IEA, 1872.
• Section 6 should be read with Chapter IV.
 JUSTIFIABLE AND EXCUSABLE
• the provisions relating to “General Exceptions” deal with two classes of exceptions,
namely, excusable and justifiable exceptions.
• The first category is where the law excuses certain class of persons, even though
their acts constitute an offence.
• The second category is where the act s committed, though are offences, are held to
be justifiable under certain circumstances and hence exempted from the provisions
of the IPC. Acts of infants, insane or intoxicated persons and act s done under
mistake of fact or by accident fall under the first category of the exceptions.
• excusable - treats an act us reus as non-criminal because of the absence of the
requisite mens rea.
• Justifiable - considers an actus reus, though committed with the required mens rea,
meritorious. Secondly, in deter-mining whether conduct is justified, the focus is on
the act, not the actor.
 EXCUSABLE

1. Mistake of fact (Section 76 and79)

2. Accident (Section 80)
3. Infancy (Section 82, 83)
4. Insanity (Section 84)
5. Intoxication (85, 86)
 JUSTIFIABLE

1. Judicial Act (Section 77 and 78)

2. Necessity (Section 81)
3. Consent (Section 87 – 89 and 92)
4. Duress (Section 94)
5. Communication (Section 93)
6. Trifles (Section 95)
7. Private Defense (Section 96-106)
 Broad Seven Categories of Exceptions

1. Judicial acts (section. 77, 78).

2. Mistake of fact (sections 76, 79).
3. Accident (section 80).
4. Absence of criminal intent (sections 81–86, 92–94).
5. Consent (sections 87, 90).
6. Trifling acts (section 95).
7. Private defence (sections 96–106).
 Judicial Acts
• Section 77. Act of Judge when act ing 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 78. 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 believes that the Court had such
jurisdiction.
• The object of protection given under these provisions to judges and their ministerial
staff, who are executing the orders of the judges, is to ensure the independence of
the judges and to enable them to discharge their duties without any fear of the
consequences.
• Its object is not to protect mali-cious or corrupt judges but to protect the public from
the dangers to which the administration of justice would be exposed if concerned
judicial officers were subject to inquiry as to malice, or to litigation with those whom
their decisions might offend him. It is in the public interest that no action can lie
against a Judge for his judicial act. - Anowar Hussain v Ajoy Kumar Mukherjee AIR
1965 SC 1651
• No person, therefore, has the right, even under the Right to Information Act 2005, to
seek reasons from a Judge as to why he had taken a particular decision in the
matter which was before him. The judge is not obliged to give reasons, other than
those given in his judgment or order dispos-ing the matter. - Khanapuram Gandaiah
v Administrative Officer AIR 2010 SC 615
• So, Sections 77 and 78 grant immunity from criminal prosecution to judges and to
those who carry out their orders.
• Section 77 extends protection to a judge with respect to acts done by him in
discharge of his duty, even if he exceeds the jurisdiction granted to him by law and
prosecutes a man for committing the alleged offence, provided it was done in good
faith.
• Thus, if a magistrate assumes on an erroneous reading of the law that he had the
jurisdiction to decide a particular case, he is not criminally liable for exceeding his
jurisdiction, though it turns out to be that he had no authority to conduct the case. The
privilege does not extend to acts when a judge knowingly exceeds his authority or
does something contrary to law.
• For instance, if a judge assaults or abuses a man, he is as much liable as an ordinary
man would be for his acts.
 Essential Elements
• protection of s 78 cannot be extended to the execution of oral orders of
a judge. It also does not protect a person if he exceeds the power given
to him by a court.
• For instance, if a magistrate who is authorised under section 5 of
Gambling Act 1867, to issue a search warrant on credible information
only, issues a warrant to arrest a person without any such information,
the police officer, who arrests the man in pursuance of such an order is
not liable forcommitting an offence. As the arrest was made under the
direction of a court, the police officer is protected from conviction in spite
of the fact that the warrant was defective in law and, consequently,
illegal.
• Sec. 78, the officer is protected in carrying out an order of a
court, which may have no jurisdiction at all, whereas as under
Sea. 77, the judge must be acting within his jurisdiction to be
protected by it. Thus, ‘mistake of law’ can be pleaded as a
defence under Sec. 78.
 Mistake of fact (sections 76, 79).
ACTS DONE BY PERSONS BOUND BY LAW (Section 76) OR JUSTIFIED BY LAW
(Section 79).
Section 76. Act done by a person bound, or by mistake of fact believing himself bound,
by law.--
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.
Illustrations
(a) 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. Act done by a person justified, or by mistake of fact
believing himself justified, by law.--
• 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.
• Section 76 deals with those class of cases where a person by reason of
a mistake (or ignorance) of fact, in good faith, considers himself bound
by law to do an act, whereas, section 79 deals with that class of cases
where by reason of a mistake of fact a person considers himself justified
by law to do an act in a particular way. The difference between the two
provisions is involved in the words bound by law and justified by law.
• Mistake, as to be proved before court of law for the purpose of defence -

• (1) that the state of things believed to exist would, if true, have justified
the act done;
• (2) that the mistake must be reasonable; and
• (3) the mistake must relate to fact and not to law.
• A plain reading of ss 76 and 79, with special attention to the words 'who by reason of a
mistake of fact and not by reason of a mistake of law in good faith believes' appearing
therein, reveals that the protection of the sections applies only to mistake of fact and
not to mistake of law.
• This is obviously based on the English Common Law maxim ignorantia facti doth
excusat, ignorantia juris non excusat (law—ignorantia juris neminem excusat)--,
ignorance of law is not excusable.
• The justification for exemption from criminal liability on the ground of a mistake of fact
is based on the principle that a man who is mistaken about the existence of a fact
cannot form the necessary intention required to constitute a crime and is, therefore, not
responsible in law for his deeds. Thus, a bona fide belief in the existence of facts, if
they do exist, would make an act innocent.
 'In good faith believes himself to be, bound by law'.
In order to entitle a person to claim the benefit of this section it is
necessary to show the existence of a state of facts which would justify the
belief in good faith, interpreting the expression with reference to section
52, that the person to whom the order was given was bound by law to
obey it.
Example - in the case of a soldier, the Penal Code does not recognize the
mere duty of blind obedience to the commands of a superior as sufficient
to protect him from the penal consequences of his act. But in certain
circumstances a soldier receives absolute protection under section 132 of
the Cr PC, 1973.
• Read Case on Fake Encounter - Satyavir Singh Rathi v
State Thr. CBI, AIR 2011 SC 1748 -
• The Supreme Court held that it cannot, by any stretch of
imagination, be claimed by anybody that a case of murder
would fall within the expression 'colour of duty'.
 Section 80. Accident

• 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.
• 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.
 ESSENTIALS

1. the act was a mere accident or misfortune.

2. the act was not accompanied by any criminal
intention or knowledge
3. it was an outcome of lawful act done in a lawful
manner by lawful means
4. it was done with proper care and caution.
ACCIDENT - An accident is something that happens out of the ordinary
course of things.
• The idea of something fortuitous and unexpected incident is involved in
the word 'accident'.
• It does not mean a mere chance. It rather means an unintentional, an
unexpected act . It implies the idea of something not only unintended
but something which was so little ex-pected that it came as a surprise.
• The term 'misfortune' means the same thing as an accident plus that it
was as unwelcome as it was unex-pected.
• Case - State of Punjab v Pargat Singh, AIR 2017 SC 3066.
• Accused persons travelling in truck allegedly causing death of deceased
travelling in jeep and injuring other persons by hitting right side of truck
to jeep.
• Mechanical test report revealing no head on collusion between two
vehicles and death of deceased due to accident. Tyre marks in
photographs of incident indicating application of brakes to avoid
accident.
• Accused persons were not armed with deadly weapons.
• So, Incident held to be accident and not murder.
 Examples
• An injury is said to be accidentally caused whenever it is neither wilfully nor
negligently caused.
• In a game of cricket a ball strikes a man on the head and he dies. Such a death is
accidental.
• where two wrestlers arranged bout in the course of which the deceased fell and
broke his skull.
• A takes up a gun, and without examining whether it is loaded or not, points it in sport
at B, and pulls the trigger. B dies. Such a death is not accidental, as there was ‘want
of proper care and caution’. If A has reason to believe that the gun was not loaded,
the death would have been accidental.
• It may be noted that shooting with an unlicensed gun will not debar an accused from
claiming the benefit of Sec. 80.
• A shoots at a bird in B’s house in order to steal it, and kills B. A is liable, as his act
was not lawful. To steal is not a lawful act.
• Where a mother was angry with her child and took a small iron bar used
as a poker and threw it at him which accidentally hit another child who
had entered the room and as a consequence the child died, the court
held that the woman was guilty, although she had no intention of killing
the child, as her act was an improper mode of correcting her child.
• In Shankar Narayan Bhadolkar v State of Maharashtra ,AIR 2004 SC
1966.
• the Supreme Court refused to give benefit of s 80 to a person who
picked up a gun, unlocked it, loaded it with cartridges and shot dead,
from a close range, one of the invitees for dinner at his place. It held that
act of the accused was without proper care and caution, and deliberate.
 Absence of criminal intent (sections 81–86, 92–94).
• [s 81] 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.
• Reniger v Fogosia, (1550) - Pollard - “quod necessitas non
habet legem”—necessity knows no law
• - By necessity, is meant a situation where conduct promotes
some value higher than the value of the literal compliance with
the law.
• It is on the principle of expediency that the law has recognised
necessity as an excuse in criminal cases.
• The genesis of this principle of expediency emanates from two
maxims: quod necessitas non habet leegem (necessity knows
no law) and necessitas vincit legem (necessity overcomes the
law).
 Essentials

• (i) the act must have been committed in order to avoid other
harm;
• (ii) the harm to be avoided must be such as to Justify the risk of
doing an act likely to cause harm; and
• (iii) the act must have been committed in good faith without any
criminal intention to cause harm.
 Queen v Dudley and Stephens, [1884] 14 QBD 273 DC

• the crew of a yacht, 'Mignonette', were cast away in a storm and were
compelled to put into an open boat, which had no water or food. On the
twentieth day, having had nothing to eat for eight days, and being 1,000
miles away from land, two of the crew (Dudley and Stephens) agreed
that the cabin boy, who was likely to die first, should be killed to feed
themselves upon his body; and one of them carried out the plan. The
men ate his flesh and drank his blood for four days. They were then
rescued by a passing vessel and were subsequently charged with
murder.
• it was held that a man who, in order to save his file from starvation, kills
another for the purpose of feeding on his flesh, is guilty of murder. The
‘doctrine of self-preservation is of no avail in such cases.
 Important for Prelims and Mains
Name of Judges - Lord Coleridge, CJ on behalf of Gove, Denman and
Pollock, JJ:
The principles that can be deduced from the Dudley and Stephens are:
(1) self-preservation is not an absolute necessity;
(2) no person has a right to take another's life to preserve his own, and
(3) there is no necessity that justifies homicide.
 Other case on Necessity

• United States v Holmes, (1842) 26 Fed Case 360 - Necessity

does not justify indiscriminate throwing of passengers
overboard to save sinking boat.
• Justice Baldwin, in charging the jury, mentioned:
• When the ship is in danger of sinking, but all sustenance is
exhausted, and the sacrifice of one person is necessary to
appease the hunger of others, the selection is by lot. This mode
is resorted to as the fairest mode, and, in some sort, as an
appeal to God, for selection of the victim.
 Difference between Section 80 and 81.

• Section 80 stipulates the absence of criminal intention as well as

criminal knowledge.
• But s 81 stipulates the absence of criminal intention alone.
• Thus, the terms 'without criminal intention' or 'knowledge' are present in
s 80,
• whereas, the term used in s 81 is 'without criminal intention' alone.
• In fact, s 81 clearly contemplates a situation where the accused has
knowledge that he is likely to cause harm, but it is specifically stipulated
that such knowledge shall not be held against him.
• Thus, in certain situations, even though the presence of knowledge is
sufficient mens rea, in this section, knowledge alone will not be suffi-
cient if there is absence of criminal intention.
 Section 82 & 83
• [s 82] Act of a child under seven years of age.
• Nothing is an offence which is done by a child under seven years of age.
• 83. Act of a child above seven and under twelve of immature
understanding.—Nothing is an offence which is done by a child above
seven years of age and under twelve, who has not attained sufficient
maturity of understanding to judge of the nature and consequences of
his conduct on that occasion
• Under the age of seven years no infant can be guilty of a crime; for,
under that age an infant is, by presumption of law, doli incapax, and
cannot be endowed with any discretion.
• there is an absolute incapacity for crime under seven years of age.
• Sections 82 and 83 of the Indian Penal Code, 1860 give protection to a child under a
particular age from criminal prosecution and punishment. This is based on the
principle that an infant is incapable of distinguishing between right and wrong and so
no criminal responsibility could be fastened in regard to his deeds.
• This immunity is based on the principle of juvenile justice. The constitutional basis for
juvenile justice can be derived from arts 15(3) and 39(e) and (f) of the Constitution of
India .
• Article 15(3) provides that 'Nothing in this article shall prevent the state from making
any provision for women and children'. Article 39 forms part of the Directive
Principles of the State Policy.
• Clause (e) of art 39 provides, inter alia, that the tender age of children is not abused.
• Clause (f) stipulates that children are to be given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that youth
be protected against exploitation and against moral and material abandonment.
• Section 83 presumes that a child above 7 but below 12 years of age is doli capax,
i.e., capable of committing a crime depending upon his maturity of understanding.
But this presumption is rebuttable. It can be rebutted by proof of 'mischievous
discretion' of the child.
• The prosecution is required to prove beyond reasonable doubt that the child
caused an act us reus with mens rea and that he knew that his conduct was not
merely mischievous but 'wrong'.
• The presumption of innocence of a child is based on the principle of immaturity of
intellect. 'The younger the child in age, the lesser the possibility of being corrupt',
seems to be its premise. This is to say, 'malice makes up for age,' i.e., quia malitia
supplet aetatem (malice supllies defect of years). Hence, as age advances, the
maxim loses force.
 Cases
Ulla Mahapatra Case -
Where the accused, a boy over 11 years but below 12 years of age, picked up his knife
and advanced towards the deceased with a threatening gesture, saying that he would
cut him to bits, and did actually cut him, his entire action can only lead to one inference,
namely, that he did what he intended to do and that he knew all the time that a blow
inflicted with a kathi (knife) would effectuate his intention.
A v DPP, (1991) COD 442 (DC). -
In the prosecution of an 11-year-old child for throwing a brick at a police vehicle and
then running away, the Court said that the justices were not entitled to conclude from
his appearance that he was normal in respect of incurring criminal responsibility. The
test is whether the child knew that what he was doing was seriously wrong and went
beyond childish mischief.
Running away was not by itself sufficient to rebut the presumption of doli incapax. A
naughty child would run away from a parent or teacher even if what he had done was
not criminal.
 Prelims - Important
• Hiralal Mallick v State of Bihar, AIR 1977 SC 2236 - Presumption as to age of
discretion is rebuttable.
• Accused was 12 yrs old; he wielded a sword; he struck on the neck of the deceased;
he rushed to avenge; he ran away like the rest. No evidence as to whether he was
under twelve, as conditioned by section 83 of the Code is adduced; no attention to
feeble understanding or youthful frolic (lively way) is addressed. The prima facie
inference of intent to endanger the life of the deceased with a sharp weapon stands
unrebutted. Indeed, robust realism easily imputes doli capax to a 12 year old, who
cuts on the neck of another with a sword; for, if he does not know this to be wrong or
likely to rip open a vital part he must be very abnormal and in greater need of judicial
intervention for normalisation.
• The conviction under section 326, IPC, 1860, therefore, must be reluctantly sustained.
Fettered by the law, theconviction was upheld.
 Leading Cases
• Section 84 - 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.
• Based on the maxim - furiosus nulla voluntus est, i.e. No culpability' can
be fastened upon insane persons as they have no free will. A person
who is suffering from a mental disorder cannot be said to have
committed a crime as he does not know what he is doing.
• Every normal and sane human being is expected to possess some
degree of reason to be responsible for his/her conduct and acts unless
contrary is proved. But a person of unsound mind or a person suffering
from mental disorder cannot be said to possess this basic norm of
human behaviour.
 R v Daniel McNaughten, 1843 RR 59 : 8ER 718
(HL).
• Facts - The accused by the name of Daniel M'Naghten suffered from a delusion that
Sir Robert Peel, the then Prime Minister of Britain had injured him. He mistook
Edward Drummond, Secre-tary to the Prime Minister for Sir Robert Peel. He shot
and killed him.
• The accused took the plea of insanity. The medical evidence showed that M'Naghten
was laboring under a morbid delusion which carried him away beyond the power of
his own control.
• He was held to be 'not guilty by reason of insanity' by the jury.
• However, his acquittal caused public excitement and considerable furor. The verdict
was made a subject of debate in the House of Lords.
• In consequence of the debate, to make the law on the topic clear, a set of five ques-
tions were formulated and put to the House of Lords for definite answers. Answers to
these questions are known as the M'Naghten Rules
 R v Daniel McNaughten, 1843 RR 59 : 8ER 718 (HL).

• Section 84 clearly gives statutory recognition to the defence of insanity

as developed by the Common Law of England in a decision of the
House of Lords rendered in the case of Mc Naughten.
• “right and wrong test” - formulated in R v M’Naghten
• The law of insanity is stated in the form of replies given by the fifteen
judges of the House of Lords to the five questions put to them with a
view of getting the law clarified on the subject. These questions and
particularly answers to the second and the third questions have
assumed great significance in as much as they find place in the penal
codes of almost all the countries in the world.
• These questions were:
• Question II—What are the proper questions to be submitted to the jury where a
person, alleged to be afflicted with insane delusion respecting one or more particular
subject or persons, is charged with the commission of a crime (murder, for example),
and insanity is set up as a defence?
• Question III—In what terms ought the question to be left to the jury as to the
prisoner’s state of mind at the time when the act was committed?
• The answers to these questions were:
• Every man is to be presumed to be sane, and to possess a sufficient degree of
reason to be responsible for his crimes, until the contrary be proved to their
satisfaction; and that to establish a defence on the ground of insanity, it must be
clearly proved that, at the time of committing the act, the party accused was labouring
under such a defect of reason, from disease of the mind, as not to know the nature
and the quality of the act he was doing; or, if he did know it, that he did not know he
was doing what was wrong.
 Main Principles in Mc Naughten's Case

• Section 84 of IPC, 1860 has been drafted in the light of the replies to the second and
the third questions.
• Main principles were enunciated by the House of Lords in reply to the
questions:
• (1) Every person is presumed to be sane and to possess a sufficient degree of
reason to be re-sponsible for his crimes, until the contrary is established.
• (2) To establish the defence of insanity, it must be clearly proved that at the
time of committing the crime, the person was so insane as not to know the
nature and quality of the act he was doing, or if he did know it, he did not know
that what he was doing was wrong.
• (3) The test of wrongfulness of the act is in the power to distinguish between
right and wrong, not in the abstract or in general, but in regard to the particular
act committed.
• There are four kinds of persons who may be said to be non
compos mentis (not of sound mind):
• (1) an idiot;
• (2) one made non compos by illness;
• (3) a lunatic or a madman; and
• (4) one who is drunk.
 Tests to determine insanity under section 84
1. It must be shown that the accused w'as of unsound mind “ at the time of
the commission of the offence”. If he was not insane at that time but
became insane later, he cannot take the benefit of Sec. 84.
2. History of previous insanity, the behaviour of the accused on the day of
occurrence, the state of his mind before and after the commission of the
offence are relevant factors to be taken into consideration. For instance,
evidence of pre-meditation, secrecy, motive, an attempt to evade/ resist
arrest, confession given on the very next day, etc. may make the
defence of insanity untenable (Queen-Empress v Gedka Gowala AIR
1937 Pat 333).
3. What is protected by Sec. 84 is ‘naturally impaired cognitive faculties of
mind’ i.e. inherent or organic incapacity (incapability). What is not protected
is a wrong or erroneous belief (may be on account of perverted illusion), or
uncontrollable impulses, or ‘moral insanity’ or weak/defective intellect, or
eccentric behaviour. When cognitive faculties are not impaired, and only
vvjll and emotions are affected, insane impulses are not a defence [Queen-
Empress v K.N. Shah (1896)].
4. To claim protection under Sec. 84, it is not that person should not know
an act to be right or wrong, but that he should be incapable of knowinp
whether the act done by him is right or wrong. When the “guiding light” (i.e.
capacity to distinguish between right and wrong) is fotmd to be still
flickering, a man cannot be protected under Sec. 84 (Lakshmi v State AIR
1959 All 534).
• 5. Akin to lunacy, is what is known as insane delusion, which is a borderline case.
Delusions are “false beliefs” which may be full or partial. Whether a person, who
under an insane"delusion, commits an offence in consequence thereof is to be
excused depends upon the nature of die delusion.

• Prelims - A distinction is to be made between legal insanity and medical insanity. A

Court is always concerned with legal insanity, and not with medical insanity. What
sections 84, IPC, 1860 provides is defence of legal insanity as distinguished from
medical insanity.
• A person is legally insane when he is incapable of knowing the nature of the act or
that what he was doing was wrong or contrary to law.
 Latest & Leading Cases
• Uttam Nandram Somwanshi v State of Maharashtra, 2016 (13) SCC
205. -
• It is essential to prove that “at the crucial point of time” or “at the time of
doing the act” by unsoundness of mind, the accused/ appellant was
incapable of knowing the nature of his act.
• Jai Lal v Delhi Administration, AIR 1969 SC 15 - Burden of proof to
claim exemption under section 84 rests on accused
• Sheralli Wali Mohammed v State of Maharashtra, AIR 1972 SC 2443
- Every person is presumed sane unless proved contrary. Absence of
motive by itself is not proof of insanity or lack of mens rea.
 INTOXICATION
• Section 85. 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 the time of doing it, is, by
reason of intoxication, in-capable 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 86. 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.
• Based on the maxim - Qui Pecat Ebrius Luat Sobrius:
• Let him who sins when drunk be punished when sober. However, Section 85 &
86.protect an intoxicated person provided he got intoxicated by mistake, force or
fraud.
• A combined reading of ss 85 and 86 reveals that the former lays down the law
relating to involuntary intoxication or drunkenness as a defence to a criminal
charge, while the latter deals with criminal liability of a voluntarily intoxicated person
when he commits an offence under the influence of self-administered intoxicant.
• Section 85, situations are similar to that of s 84, accords immunity from criminal
liabiliity to a person intoxicated involuntary as s 84 gives to a person of unsound
mind. Section 86 provides for a limited exemption from criminal liability to a self-
intoxicated person. It, in ultimate analysis, deals with the ef-fect of voluntary
drunkenness on criminal liability in certain types of cases.
 INVOLUNTARY INTOXICATION
• A man in order to claim exemption from criminal liability under IPC, 1860, section 85
on the ground of involuntary drunkenness must establish that he was
(i) incapable of knowing the nature of the act, or
(ii) that he was doing what was either wrong or contrary to law, and
(iii) that the thing which intoxicated him was given to him without his knowledge or
against his will.
• An offence committed under intoxication caused due to fraud or coercion, has been
mentioned under section 85
• The justification for such a provision is based on the contention that the accused had
himself not contributed towards his drunkenness, which was not likely to be repeated
as in case of voluntary drunkenness.
• 'without his knowledge' means that the person concerned is ignorant of the fact that
what is con-sumed by him is an intoxicant or is mixed with an intoxicant.8 In other
words, he must be totally unaware that whatever was administered or given to him
will have any intoxicating effect.
• The words 'against his will' mean that the person was forced or coerced into
consuming an intoxicant. Normal persuasion acting as an incen-tive is not covered
by the expression 'against his will', unless there is an element of compulsion to
consume the intoxicant against his will.
• Bablu @ Mabarik Hussain v State of Rajasthan ,AIR 2007 SC 697. - wherein the
accused, under the influence of liquor, killed his wife and five children, the Supreme
Court ruled that the mere proof of intoxication is not enough to invoke s 85. The
accused needs to take the plea and prove that the intoxicant was administered to
him without his knowledge or against his will.
 VOLUNTARY INTOXICATION
• Section 86 deals with that class of cases where a man gets intoxicated voluntarily. It
imputes the same knowledge to such a man as he would have had he had not been
intoxicated, ie, the knowledge of a sober man with regard to the consequences of his
acts.
• s 86 deals with immunity of a self-intoxicated person when he commits an offence
requiring 'particular knowledge or intention', as a definitional ingredient, on the part of
an accused. It provides that if an offence requiring such a knowledge or intention is
committed by a selfinduced intoxicated person, only knowledge (and not the
intention) of the offence on his part will be presumed. If such an offence is committed
by an involuntarily intoxicated person, neither knowledge nor intention in committing
it is to be presumed on the part of the doer.
• S 85 covers all the offences, while s 86 covers the offences requiring particular intent
or knowledge. Section 86, in this sense, is an exception to s 85.
• Reason behind incorporating Section 86 - If voluntary drunkenness
was allowed to be a protective shield against criminal liability, it would
obviously lead to a sort of license to commit crimes with impunity.
Voluntary drunkenness, therefore, is no defence for any offence.
• This presumption of knowledge in cases of voluntary intoxication is, like
all other presumptions, rebuttable. Thus, in cases of voluntary
intoxication, where the offence requires particular knowledge or intent,
then the court will presume that such knowledge as he would have, had
if he had not been intoxicated is present.
• The onus or the burden shifts on the accused to prove that he, by
reason of intoxication, had become incapable of having the particular
knowledge which he is presumed to have
• Sections 87 to 93 of the Code deal with consent as a
general exception. Sections 87 and 91 lay down the law
of consent as a defence, while ss 88, 89, 92 and 93 lay
down the law relating to immunity for the harm caused, in
good faith, with or without consent, for the benefit of the
sufferer. And s 90 explains what is not consent for the
purposes of the Code.
• [s 87] Act not intended and not known to be likely to cause death or
grievous hurt, done by consent.
• This section protects a person who causes injury to another person
above 18 years of age who has given his consent by doing an act not
intended and not known to be likely to cause death or grievous hurt.
• It appears to proceed upon the maxim volenti non fit injuria. He who
consents suffers no injury. This rule is founded upon two very simple
propositions:
• (1) that every person is the best judge of his own interest and
• (2) that no man will consent to what he thinks hurtful to himself.
• [s 88] Act not intended to cause death, done by consent in good faith for person's
benefit.
• section allows any harm to be inflicted short of death or grievous hurt.
• This section sanctions the infliction of any harm if it is for the benefit of the person to
whom it is caused. No consent can justify an intentional causing of death.
• Example - Where a person attacked by a wild beast called out to his friends to fire,
but the fire hit him, so his friends were not held liable inspite of the fact that when
they fired they knew themselves to be likely to cause his death.
• This section differs from the last section in two particulars—(1) under it any harm
except death may be inflicted;
• (2) the age of the person consenting is not mentioned
• (but see section 90 under which the age of the consenting party must at least be 12
years).
• Section 89 - Act done in good faith for benefit of child or insane person,
by or by consent of guardian.
• This section empowers the guardian of an infant under 12 years or an
insane person to consent to the infliction of harm to the infant or the
insane person, provided it is done in good faith and is done for his
benefit. Persons above 12 years are considered to be capable of giving
consent under section 88. The consent of the guardian of a sufferer, who
is an infant or who is of unsound mind, shall have the same effect which
the consent of the sufferer himself would have, if the sufferer were of
ripe age and sound mind.
• [s 90] Consent known to be given under fear or misconception.
• A plain reading of s 90 reveals that consent given by a person 'under fear of injury' or
'under a misconception of fact' is not 'consent' at all.
• Similarly, consent given by a person of unsound mind or a person who intoxi-cated,
who is incapable of understanding the nature and consequences of the consented
act, and a person below 12 years of age, unless contrary appears from the context, is
not a valid consent.
• Section 90, ultimately, provides that consent to be a ground for avoiding criminal
responsibility is required to be a real con-sent and not vitiated by fear, fraud or
immaturity.
• The phrase 'misconception of fact' used in s 90 refers to 'misconception' regarding
the true nature of the act, that is, in reference to the effect and consequence of the
act.
• Example - Snake Charmer Case
 Section 94 - Duress
• Sec. 94: Act Done under Compulsion or Threat
• As per Sec. 94, offences committed under compulsion or threat by a person so
compelled or threatened will be excused if the threat is to cause instant death of such
person. However, a person so put under threat cannot cause murder or an offence
against the State punishable with death (e.g. treason) to avail benefit of Sec. 94.
Further, 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 under such
constraint.
• A person who of his own accord, or by reason of a threat of being beaten, joins a
gang of dacoits, is not entitled to the benefit of Sec. 94. However, a person seized by
a gang of dacoits and forced by threat of instant death to do anything which is an
offence by law (e.g. to break open the door of a house) is entitled to the benefit of
Sec. 94.
• Sec. 95: Trifling Acts/Acts Causing Slight Harm
• The sixth general exception is laid down in Sec. 95. The maxim
de minimis non curat lex (‘the law takes no account of trifles’) is
the foundation of the section:
• If a person causes any harm (even with an intention or
knowledge to do so), and that harm is so slight that no person
of ordinary' sense and temper would complain of such harm, it
is no offence.
• Thus, both accidental as well as deliberate acts are covered by
the section. Further, the ‘harm’ covers actual physical injury
also.
 Secs. 96-106: Right of Private Defence
• The right of private defence is based on the cardinal principle
that it is the primary duty of a man to help himself. Self-
preservation is the prime instinct of every human being.
• Bentham, in his Principles of the Penal Code says:
• The right of defence is absolutely necessary. The vigilance of
Magistrates can never make up for the vigilance of each
individual on his own behalf. The fear of the law can never
restrain bad men as the fear of the sum total of individual
resistance. Take away this right and you become in so.
• Section 96, which declares that 'nothing is an offence which is done in the exercise
of the right of private de-fence', lays down the general rule on the right of private
defence,
• while s 97, which deals with the subject-matter of the right of private defence of
body and of property and lays down the extent of the right of pri-vate defence,
proclaims that every person, subject to restrictions contained in s 99, has a right to
defend his own body and the body of another person, against any offence affecting
human body, and right to defend property of his and 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.
• s 99 lists the situations wherein the right of private defence of body as well as of
property is not available to an individual. It lays down the limits of the right.
• Sections 102 and 105 deal with commencement and continuation
of right of private defence of body and of property respectively;
while ss 100 and 101 and 103 and 104 deal with the extent of the
'harm' (including voluntary death) that may be in-flicted on the
assailant in exercise of the right of body and of property
respectively. Section 98 makes the right of private defence
available even against persons who, by reason of infancy,
insanity, intoxication or misconception, are legally incompetent to
commit an offence. In other words, it gives the right of private de-
fence against certain act s of persons whose rights exempted
from criminal liability.
• And s 106 allows a per-son to take the risk of harming
innocent person in order to, in exercise of the right of
private defence of body, save himself from mortal injury.
• Section 96, thus, declares, in general terms, that
nothing is an offence which is done in the exercise of
pri-vate defence. The subsequent ss 97-98 and 100-106
explain the contours of the right and define the broad
boundaries within which it can be exercised. All the
rights enumerated in these sections are subject to re-
strictions or limitations that are stated in s 99.
 Principles of Right to Private Defence
• The doctrine of private defence is founded on the following expediencies:
• (i) A person, whose life is threatened by a grave danger, need not wait for the State
aid, unless such aid is available.
• (ii) The right of private defence is protective or preventive and not punitive (i.e. not
meant for punishing the aggressor); however, punitive measures may result.
• (iii) The right cannot be availed of for the sake of self-gratification or to satisfy one’s
malicious or sadistic urges. The act of private defence should not be deliberate, or
retaliation for past injury.
• (iv) The right must be exercised when there is
• (a) real and immediate threat (not imaginary and remote), and
• (b) a reasonable apprehension of such threat. A fear that one might or will be
attacked in near future will not justify the exercise of this right.
• (v) The right commences as soon ns reasonable apprehension of danger to the body arises from an
attempt to or threat to commit the offence, though the offence may not have been committed, und
such right continues so long as such apprehension continues. It is incorrect to say that a person could
claim the right to use force after he had sustained a serious injury. Further, if the apprehension is real
and reasonable, it makes no difference that it is mistaken.
• (vi) The protective measures employed must be relative to the danger ahead, i.e. violence used must
be proportionate to the injury or threat to be averted, and must not exceed such limits. However, in
such situations it cannot be expected of a person to minutely calculate the correct proportion of force
to be used in defence (Amjad Khan v State AIR 1952 SC 165).
• (vii) The right of defence ends with the necessity for it. Thus, the person exercising such right need
not chase the fleeing attacker and then beat him (State of U P v Ram Swarup AIR 1974 SC 1570).

• (viii) The law1 does not require that a person should not exercise his right to self- defence if by
running away he can avoid injury.
• (ix) The law does not require that a person placed in such
circumstances should weigh the arguments for and against an attack 'in
golden scales’.
• (x) The “aggressor” (i.e. one who goes to beat other) cannot claim the
right to self-defence (Deo Narain v State of UP. AIR 1973 SC 473).
• (xi) There cannot be 'private defence against private defence’. There is
no right of private defence under the Code against any act which is not
in itself an offence under it (an act done in exercise of the right of private
defence is not an offence).
• (xii) In a case of “free fight”, no right of private defence is available to
either party.
• (xiii) Even if an accused does not plead self-defence, it is open to the
 Restrictions on Right to Private Defence (S. 99)
• (i) There is no right of private defence against an act which
does not reasonably cause the apprehension of death or
grievous hurt, if done by a 'public servant’ acting in good faith
under colour of his office, though that act may not be strictly
justifiable by law.
• (ii) There is no right of defence in cases in which there is time to
have recourse to the protection of public authorities.
• (iii) 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.
 LEADING AND LATEST CASES
• In Ram Ratan v State of Bihar ,1965 SCR (1) 293
• Facts - the complainant's cattle trespassed into a field and started grazing. The
accused party seized the cattle and was taking them to the pound. The complainant
party, on coming to know of the seizure of the cattle by the accused party, came with
good numbers, variously armed to rescue the cattle.
• The Supreme Court held that since the complainant's party had come armed with
sharp edged weapons and lathis to rescue the cattle from the accused party, the
accused party could have apprehended that they were not peacefully inclined and
would use force against them in order to rescue the cattle and that the force likely to
be used could cause grievous harm.
• Held - the accused party committed no offence in causing injuries to persons in the
complainant's party and even causing death to one of them. The accused were all
acquitted.
• In Jai Dev v State of Punjab ,1962 SCR (3) 489
• Facts - a piece of land was bought by the accused party in a neighbouring village of Ahrod. Since they
were outsiders to the village, the Ahrod villagers treated them as strangers. When the ac-cused, who
were armed, were ploughing the field in the disputed land, the villagers of Ahrod, who could not
tolerate that strangers should take possession of the land, came armed in large numbers to take
possession of the field. The accused party in self-defence of their property caused harm and shot
dead one Amin Lal. Immediately thereafter, the villagers of Ahrod who had come to the field ran away
and there was no longer any justification for using any force against the running villagers. The
moment the property had been cleared of trespassers, the right of private defence ceased to exist.
However, the accused shot dead two of the flee-ing villagers. While the right of private defence was
available in the killing of Amin Lal,
• the Supreme Court held that it was not available to kill the fleeing
villagers who were already some distance away from the field. The
accused were convicted for murder and sentenced to life
imprisonment.
• In Rajesh Kumar v Dharamvir, 1997 INSC 0318 -
• “the right of private defence can be exercised only to repel unlawful aggression, and
not to retaliate”.
• State of Madhya Pradesh v Ramesh, 1999 (3) ACR 2164 (SC) - the right of private
defence is es-sentially a defensive right and it does not include in it the right to
launch an offensive attack. The right of pri-vate defence arises only when there is
unexpected apprehension and one is taken unawares.
• Mannu v State of Uttar Pradesh ,AIR 1979 SC 1230, when the deceased were going
to the market, they were waylaid and attacked by the accused with dangerous
weapon. Although, there were injuries caused on the side of the accused party as
well and there was also loss of a life, the Supreme Court rejected the plea of self-
defence, holding that the accused being the aggressors were not entitled to the right
of self-defence.
 FREE FIGHT
• A free fight is when two individuals or parties fight with one another using
unlawful force against each other.
• In such a case of free fight, both the parties are aggres-sors and none of
them is entitled to claim the right of private defence.38
• An appropriate test for determining as to whether a fight is a free fight or
not is to see whether the parties voluntarily entered into fight with mutual
intent to harm each other.
• The question of who attacks and who defends in such a fight is wholly
immaterial.39In a free fight, no right of private defence is available to
either party and each individual is responsible for his own acts.
• the right of private defence cannot be ex-ercised when a person
is carrying out a lawful act.
• In Kanwar Singh v Delhi Administration , 1965 AIR 871 - a
raiding party possessing authority under a section of the
Delhi Municipal Corporation Act, seized the stray cattle
belonging to the accused. The accused resisted the sei-
zure of the cattle and inflicted injuries on the raiding party.
Since, the raiding party was carrying out a lawful act, it was
justified in law to seize the cattle, no right of private
defence was available to the accused. Ac-cordingly, he was
convicted.
• When five or more persons come together to form an
assembly, in order to assert their right of private de-fence either
in respect of their person, body or property, such an assembly
cannot be termed to be an un-lawful assembly. But when these
persons use unlawful force (i.e. when they do not act in self-
defence), they constitute an unlawful assembly.45
• In State of Bihar v Nathu Pandey , 1970 SCR (1) 358 the
Supreme Court held that an as-sembly can not be designated
as an unlawful assembly, if its object is to defend property by
the use of force within the limit prescribed by law.
• Mohinder Pal Jolly v State of Punjab ,1979 SCR (2) 805 -
• there was a dispute between the workers and the management
over demand for wages. The workers threw brickbats at the
factory. The owner of the factory came out and fired with a
revolver killing one worker. The Supreme Court held that the
owner exceeded his right of self-defence in killing the worker.
Similarly, when an accused was attacked with a stick by the
deceased and the accused stabbed him with the knife in the
heart, it was held that the accused exceeded his right of self-
defence
• Amjad Khan v State ,1952 AIR 165, 1952 SCR 567
• Facts - a communal riot broke out between the Sindhi refugees and the
local Muslims. Several Muslim shops had been broken and looted and
many killed. The mob had broken into another part of the house where
the accused lived and looted it; the women and children of his family
fled to the accused for protection. The mob was act ually beating at his
door with lathis. Under these circumstances,
• Held - it was not necessary for the accused to wait and see if the mob
actually would or not destroy and loot his shop and kill his family. The
threat was implicit in the conduct of the mob and the accused had a
right of private defence and was justified in firing two shots which
resulted in the death of one person.31
• In Yeshwant Rao v State of Madhya Pradesh ,AIR 1992 SC 1683 -
• the minor daughter of the accused had gone to the toilet on the rear side of the
house. The deceased was indulged in sexual intercourse with her. The accused
seeing his minor daughter being sexually molested by the deceased, hit the
deceased with a spade. The deceased on trying to flee also fell and hit himself. He
died due to injury of the liver. The prosecution case was that the 127 minor girl had
consented to the sexual intercourse. The Supreme Court held that since the girl was
a minor, the question of 'consent' does not arise and the act of the deceased would
amount to committing rape under s 376, IPC, and hence, the father in defence of the
body of his daughter, was justified in exercising his right of private defence. The
accused was acquitted.
• Clauses 'thirdly' and 'fourthly' of s 100 provide that the right of private defence of
body extends to causing death in cases of assault with intention of committing rape
or gratifying unnatural lust.34
• Clause 'fifthly' of s 100 provides that the right of private defence of the body extends to causing death
in cases of assault with intention of kidnapping or abducting.
• In Vishwanath v State of Uttar Pradesh , 1960 SCR (1) 646 - the accused's sister was staying with
her father and brother (the accused) because she did not want to live with her husband. The husband
came to the house of the accused and tried to drag his wife away. The girl caught hold of the door as
she was being taken out and a tug-of-war followed between her and her husband. At this stage, the
accused (the brother of the wife) took out a knife and stabbed the (the husband) once. The knife
penetrated the heart and he fell down senseless and thereafter died. The accused put up the plea
that his case would come under 'fifth' clause of s 100.
• Held - abduction, in cl (5) of s 100, means only abduction simpliciter as defined under s 362 of the
IPC, i.e. where a person is compelled by force to go from any place. The moment there is an assault
with intention to abduct, the right to private defence is available. It would not be right to expect from a
person who is being abducted by force to pause and consider whether the abductor has further
intention as provided in s 364-369, IPC. Moreover, the fifth clause itself does not qualify the term 'ab-
duction' and hence, the clause must be given full effect according to its plain meaning. The clause
merely requires that there should be an assault, which is an offence against human body, and that
assault should be with the intention of abducting. The apex court acquitted the accused.
• Section 106 , IPC, provides that when there is a deadly assault on a person which
causes a reasonable ap-prehension of death and his right of private defence cannot
be effectively exercised without causing harm to an innocent person, then in such
situations, any harm caused to innocent persons is also protected by law. In other
words, in the exercise of the right of private defence, if, some innocent person is
killed or injured, law protects the man exercising the right of private defence by
exempting him from criminal liability.
• In Wassan Singh v State of Punjab ,1996 SCC (1) 458 - there was a fight between
two groups. The accused himself received nine injuries. He shot at the assailants
with his gun, which however, hit an innocent woman bystander, killing her. The
Supreme Court held that the accused had the right of private defence and hence he
was acquitted.
• Darshan Singh v State of Punjab,(2010) 2 SCC 333 - Guidelines and Principles
for application of Right of Private Defence -
• (1) Self-preservation is a basic human instinct and is duly recognized by the criminal
jurisprudence of all civilized countries. All free democratic and civilized countries
recognize the right of private defence within certain reasonable limits.114
• (2) The right of private defence is available only to one who is suddenly confronted
with the necessity of averting an impending danger and not of self-creation.115
• (3) A mere reasonable apprehension is enough to put the right of self defence into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defence. It is
enough if the accused apprehended that such an offence is contemplated and it is
likely to be committed, if the right of private defence is not exercised.116
• (4) The right of private defence commences as soon as a reasonable apprehension arises and it
continues with the duration of such apprehension.117
• (5) It is unrealistic to expect a person under assault to modulate his defence step by step with any
arithmetical exactitude.118
• (6) In private defence the force used by the accused ought not to be wholly disproportionate or much
greater than necessary for protection of the person or property.119
• (7) It is a well settled principle that even if the accused does not plead self-defence, it is open to the
court to consider such a plea, if the same arises from the material on record.120
• (8) The accused need not prove the existence of the right of private defence beyond reasonable
doubt.121
• (9) The Indian Penal Code, 1860 confers the right of private defence only when that unlawful or
wrongful act is an offence.122
• (10) A person who is in imminent and reasonable danger of losing his life or limb may exercise right
of selfdefence and inflict any harm even extending to causing death on his assailant either when the
assault is attempted or directly threatened apprehending that death will otherwise be consequence of
such assault.123
• Narinder Kumar v State of J & K, (2010) 9 SCC 259 - firing on
unarmed deceased with gun causing death cannot claim Right
of Private Defence.
• Brij Lal v State of Rajasthan, AIR 2016 SC 3875 - Plea of self-
defence under section 100 of Indian Penal Code, 1860 is not
tenable when the accused fired gunshots in discriminately, on
being angered by the criminal when they were not aiming to
cause any harm or injury to the accused, resulting in death of a
woman and injuring a child. So, Plea of self defence rejected.
• Sukumaran v. State Rep. by the Inspector of Police,
AIR 2019 SC 1389.
• whether Right to Private Defence is rightly exercised
or exceeded, the same is required to be examined
keeping in view the entire background facts and
circumstances in which the incident occurred
resulting in injury.