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General Defences

The document outlines general defenses in criminal law, focusing on the concepts of mistake of fact and law, as well as provisions related to accident and necessity. It explains how sections 76 and 79 provide exemptions from liability based on reasonable mistakes, while sections 80 and 81 address lawful acts done accidentally or to prevent harm. Key case examples illustrate the application of these defenses in legal contexts.

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aswinikumar bairagi
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4 views

General Defences

The document outlines general defenses in criminal law, focusing on the concepts of mistake of fact and law, as well as provisions related to accident and necessity. It explains how sections 76 and 79 provide exemptions from liability based on reasonable mistakes, while sections 80 and 81 address lawful acts done accidentally or to prevent harm. Key case examples illustrate the application of these defenses in legal contexts.

Uploaded by

aswinikumar bairagi
Copyright
© © All Rights Reserved
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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GENERAL DEFENCES

76 79 80 81
• Mistake is one of the defences available to the accused to get exemption from
criminal liability.
• A court has to determine his guilt on the basis of the believed facts and not on
the real facts.
• Mistake negates the existence of a particular intent or foresight which penal
law requires to make a person liable rather than actus reus.
• Burden of proof is on the hands of accused.
PROVISIONS ON MISTAKE OF FACT AND LAW

• 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.

• 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.
• “ ignorantia facti excusat ignorantia juris non- excusat” means ignorance of fact
excuses and ignorance of law does not excuse”
• Section 76 excuses a person from criminal liability who is bound by law to do
something and has done it or who in good faith, owing to a mistake of fact,
believes that he is bound by law to do something and does it.
• Whereas section 79 absolves a person, who believes, by reason of mistake of
fact and not by reason of mistake of law, in good faith, that his act would be
justified by law. The similarities between both the sections are the act must have
done based on mistake of fact and the accused must have acted in good faith.
The difference between two sections, is involved in the words “bound by law”
and “justified by law”.
• These two sections, though identical and accord the same immunity, are distinct
from each other. Under section, 76 a person believes himself bound by law to do
a thing and thereby he thinks he is under legal compulsion to do a thing,
whereas section 79 he acts because he thinks that he is justified in doing so and
thereby believes that there is a legal justification for his action. The purpose of
these sections is to provide protection from conviction to persons, who are
bound by law or justified by law in doing a particular act, but due to mistake of
fact, in good faith, committed an offence
• The purpose of these sections is to provide protection from conviction to
persons, who are bound by law or justified by law in doing a particular act, but
due to mistake of fact, in good faith, committed an offence
INGREDIENTS OF MISTAKE
• a. The state of things believed to exist would, if true,
• b. have justified the act done; the mistake must be reasonable;
• c. the mistake must relate to fact and not to law

EXCEPTIONS OF MISTAKE OF FACT


• The act is in good faith;
• He is compelled by law to do something;
• The mistake must be reasonable
• He should act with due care and caution

EXCEPTIONS OF MISTAKE OF LAW


• When the law is not published
• When you relied upon a statute that was later
• overturned or held to be unconstitutional
• When you relied upon a judicial decision
• When you relied upon an interpretation by an appropriate official
• R v Tolson, The appellant married in Sept 1880. In Dec 1881 her husband went missing. She
was told that he had been on a ship that was lost at sea. Seven years later, believing her
husband to be dead, she married another. Sometime after her marriage, her first husband
turned up. She was charged with the offence of bigamy. She was held not guilty since she was
afforded the defence of mistake as it was reasonable in the circumstances to believe that her
husband was dead.
• R. v. Prince, prince took a girl below the age of 16 years without the consent of the parents
under the belief that she was above 16 years, which is an offence in England under Offences
against persons Act, 1861. In this case he didn’t act in good faith because he failed to make
enquiries to find out the actual age of the girl. He was convicted, even though; there is no
mensrea, for the offence of kidnapping.
• In Jagesher v. Emperor, the accused was beating a person with his fist. The latter’s wife
intervened with two month old baby on her shoulder. The accused hit the women also the blow
struck the child on the head and it died from the effects of the blow. The accused was held
liable, even though the child was hit by accident. The reason is that the accused was not doing
a lawful act in a lawful manner by lawful means.
• R v. Wheat & Stock , the accused was an illiterate and he was miscommunicated that he had
been granted divorce. Subsequently he remarried. His first wife charged him for bigamy. The
court held him guilty of bigamy and convicted him.
PROVISONS OF ACCIDENT

Section 80: Accident in doing a lawful act


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.

• The act must have been done without any criminal intention or knowledge; the act
alleged to have been done against the accused must be lawful; the act must have
been done in a lawful manner by lawful means and with proper care and caution.
• In Bhupendra Singh v. State of Gujarat AIR 1997 SC 3790, the accused constable,
along with the head constable, was on patrol duty at a dam site, which was in
danger on account of heavy rain fall. The accused took the plea that he saw a fire
and hence fired. The accused close at shot range without knowing the identity of his
target. The Supreme Court held that the act was done without any care and caution.
His conviction for murder was upheld and he was sentenced to life imprisonment.
PROVISONS OF NECESSITY

Section 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.

quod necessitas non habet leegum -necessity knows no law


necessitas vincit legum- necessity overcomes the law

R v. Dudely and Stephens, three seamen and a cabin boy were the crew of an English vessel.
Due to ship wreck, the three seamen and the boy escaped and were put into open boat. On
20th day, when they had no food for eight days and no water for five days, the accused killed
the boy and fed on the flesh and blood for four days to survive. On the fourth day, they were
picked up by a passing vessel and subsequently they were prosecuted for the offence of murder
of the boy. The accused pleaded the defence of necessity to get exemption from the criminal
liability. The Privy Council held they are guilty for murder and convicted them on the ground of,
self preservation is not an absolute necessity, no man has a right to take another’s life to
preserve his own; and there is no necessity that justifies homicide.
• Section 80 and 81 are analogous provisions, the former dealing with accidents
and the latter with inevitable accidents. Section 80 stipulates the absence of
criminal intention as well as criminal knowledge. But section 81 stipulates the
absence of criminal intention alone. In fact section 81 clearly contemplates a
situation where the accused has knowledge that he is likely to cause harm, but
is specifically stipulated that such knowledge shall not be held against him.

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