General Exceptions
General exception contained in Chapter 4, Sections 76-106 extinguish the criminal liability. These are rules of evidence carrying conclusive or rebuttable presumptions. They deal with circumstances which extinguish mens rea. The wrongdoers who committed actus reus with requisite mens rea may escape liability because the act falls in general exceptions. Section 6 of Indian Penal Code provides that definitions in the Code are to be understood subject to exceptions. Framers of the Code have put all general exceptions in one place and dispensed with the necessity of repeating the general exceptions in every definition or penal provision. This chapter applies to the offences not only defined in Indian Penal Code but also the offences defined by any local or special law. Section 40 of the Code defines ‘offence’ as denoting a thing punishable under the Indian Penal Code as well as special or local law. Section 40 read with Section 6 clearly shows that general exceptions are applicable not only to the offences mentioned in Indian Penal Code but also to penal
provisions contained in other special or local laws.
Categories of exceptions: General Exceptions can be broadly categorized into following categories :-
Excusable
[Sections 76, 79, 80, 82, 83, 84, 85, 86]
Justifiable
[Sections 77, 78, 81, 94, 87, 88, 89,
92, 93, 95, 96-106]
In the first category i.e. excusable, the necessary mens rea for the offence is lacking while in second
category i.e. justifiable the circumstances under which the offence is committed furnish legal justification for
its commission. In first category, the act is excused for want of necessity of guilty mind. In second category
the act is justified on account of some other considerations.
Burden of Proof
As a general rule the burden to prove the guilt of the accused is on the prosecution. However, in cases ofGeneral Exception this rule is reversed. Section 105 of Indian Evidence Act provides that if an accused person claims the benefit of exceptions, the burden of proving his plea that his case falls under the general
exception lies upon the accused. In K. M. Nanawati v. State of Maharashtra, AIR 1962 SC 605 Supreme Court observed that if an accused pleads exceptions contained in Indian Penal Code then there is a presumption against him and the burden to rebut that presumption is on him. Although the burden of proof in respect of proving the existence of circumstances under Chapter IV of the Code is on the accused, the standard of proof required is not the same as that of prosecution. Prosecution is required to prove the elements of crime beyond reasonable doubt. But in case of defence, the accused need not prove
the case under Chapter IV of the Code beyond reasonable doubt. Supreme Court in Ranjitham v. Basavraj, AIR 2012 SC 1856 held that the accused discharges his burden as soon as he proves the preponderance of probability of the existence of the circumstances bringing his case within the general exceptions. In T.N.
Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 Supreme Court held that standard of proof is not the same as expected from the prosecution. It is enough that the accused maes his case in any of the general exception by standard of preponderance of probabilities.
Mistake of Fact
Sections 76 and 79 incorporates the law relating to mistake as an exception to criminal liability. They are
based on the principle of ignorantia facit excusat, ignorantia juris non excusat i.e. ignorance of fact is an
excuse but ignorance of law is not an excuse. Everyone is presumed to know the law. It is a legal fiction
created for sake of convenience and out of necessity. The exemption on the basis of mistake of fact or
ignorance of fact is based on the premise that the man who is mistaken or ignorant about the existence of
fact cannot form necessary mens rea to constitute an offence. Mistake negatives the existence of a particular
‘intent’ which the penal law requires in making a person liable. Mistake is an erroneous mental condition
induced by ignorance, misapprehension or misunderstanding of truth. Ignorance of fact must be ignorance
in respect of material fact i.e. fact which is essential to constitute an offence.
Mistake of law
Mistake or ignorance of law is no excuse. Mistake of law means mistake or ignorance as to whether there is law regarding a certain subject or a mistake or ignorance as to provisions of law. Mistake of law is not allowed to be pleaded as a defence. It applies even to a foreigner. If such kind of defence is allowed to be pleaded then everyone will advance this defence and it will be very difficult to prove whether the person was really ignorant of law or not. 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. 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. In Queen v. Tolson, (1889) 23 QBD 168 court held that belief in good faith about the existence of fact which do not exist would make act innocent in law. In Tolson’s case, Mrs. Tolson was charged with bigamy. It was argued on behalf of Mrs. Tolson that she believed in good faith and on reasonable grounds that her husband had died prior to her second marriage. After the husband of Mrs. Tolson went missing she made several inquires about whereabouts of her husband. She was led to believe that her husband was dead. This fact was also known to the second husband of Mrs. Tolson and the marriage ceremony was not a concealed one. The court held that Mrs. Tolson acted in bona fide mistake of fact and hence she was not liable for the offence of bigamy.
Act done by a person bound, or by mistake of fact believing himself bound by law:
Section 76 provides 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 a mistake of law in good faith believes himself to be, bound by law
to do it.
Essential ingredients
- Person is bound by law; or
- In good faith he believes himself to be bound by law.
- Such belief is by reason of mistake of fact and not by mistake of law.
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. Arrest under a warrant issued by a court is an act protected by this section. So, when a person executed the warrant of arrest by a bona fide mistake and arrested the wrong person, he will get the benefit of this section. Private persons are bound by law to assist the police under Section 37 of Code of Criminal Procedure and are also protected under Section 76. This section contemplates two types of situations: (1) where a person is bound by law to do an act and (2) where
a person, by mistake of fact in good faith, believes himself to be bound by law to do an act. Act done by person justified, or by mistake of fact believing himself justified by law: Section 79 provides that 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.
Essential Ingredients:
- Person is justified by law; or
- In good faith he believes himself to be justified by law
- Such belief is by reason of mistake of fact and not by mistake of law
For example, ‘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 act, seizes ‘Z’, in order to bring ‘Z’ before the proper authorities. A has committed no offence, it may turn out that ‘Z’ was acting in self-defence. The expression ‘justified by law’ means ‘not prohibited by law’. This section contemplates two types of situations:
(1) where a person is justified by law to do an act and
(2) where a person, by mistake of fact in good faith, believes himself to be justified by law to do an act.
Supreme Court in Pitchai v. State by Inspector of Police, Vadamadurai, (2004) 13 SCC 579 held that Section 79 comes into play only when there is real or supposed legal justification for a person in doing the act complained of and that the same was done with an intention of advancing the law to the best of his
judgment exerted in good faith. In Raj Kapoor v. Laxman, (1980) 2 SCC 175 prosecution was launched against the producer of the film ‘Satyam Shivam Sundaram‘. The Censor Board gave the certificate to the film for exhibition. That certificate gave the legal right to exhibit the film in public. The court held that producers believed themselves to be justified by law to exhibit the film. Good faith:
One of the essential requirements to get protection under Section 76 and 79 is that the action must be done in ‘good faith’. Section 52 of Indian Penal Code defines ‘good faith’. It provides that nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention. Therefore, a person is expected to act with due care and caution. Due care denotes degree of reasonableness in the care to be exercised. ‘Good faith’ is always a question of fact. Sections 76 and 79 are complimentary to each other. In Section 76 there is an element of legal compulsion. In this case the person is bound by law to do an act and he does it or the person, under mistake of fact, in good faith believes himself to be bound by law to do and act and he does it. While in Section 79 there is element of legal justification. In this case the person is justified by law to do an act and he does the act or under mistake of fact believes himself to be justified by law to do and act and does it.
Exemption from liability to Judges:
Section 77 provides protection to judges. Section 19 defines ‘judge’. According to it, the term ‘judge’ denotes not only a person who is officially designated as a judge, but also a person who is empowered by law to give a definitive judgment in any civil or criminal proceedings. Another important aspect of Section
77 is that such act should be done by the judge in course of discharging his judicial powers. Judge is protected only ‘when he is acting judicially’. The protection under Section 77 extends not only to acts of a judge in exercise of judicial power given to him by law, but also to acts done by him in exercise of judicial
power which he believes in good faith was given to him by law. The burden of proving ‘good faith’ lies the judge. Section 78 provides that 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. This section grants immunity to those persons who carry out the orders of the court. If the conditions of Section 78 are fulfilled then the person carrying out the order of the court will not be liable for prosecution even if the court issuing the order had no jurisdiction or order happened to be erroneous.
Accident and Misfortune:
Section 80 deals with general exception related to accident. It is also a statutory recognition to the common law doctrine of mens rea that there can be no crime without criminal intention. If a person performs a lawful act, in a lawful manner, by lawful means and with proper care and caution then he is not responsible for the unintended and unknown consequences of the act. According to Stephen an effect is accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought,
under the circumstances in which it is done, take reasonable precaution against it. Section 80 provides 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.
Essential ingredients:
1.Act is done by accident or misfortune
2.Without any criminal intention or knowledge
3.Act should be lawful, done in a lawful manner and by lawful means
4.Act should be done with proper care and caution.
For example, ‘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. In another
example, if ‘A’ work with a hatchet at a place where children are playing and the head flies off and kills a
child ‘A’ cannot plea the defence of Section 80 because his work is not done with proper care and caution.
Accident and misfortune: Accident means such happening which is unintentional and unexpected
out of the ordinary course and no man of ordinary prudence could anticipate. To bring within the meaning
of the term ‘accident’ in Section 80, the happening must be one to which human fault does not contribute.
Accident implies injury to another and misfortune implies injury to the other as well as the author.
Absence of criminal intention or knowledge: It is essential to establish the absence of criminal
intention or knowledge. If the act is intentional or accompanied with the knowledge of evil consequences
it cannot be termed as an accident.
Lawful act in a lawful manner:
To avail the protection of Section 80 the act must be a lawful act,
done in a lawful manner and by lawful means. Supreme Court in Sukhdev Singh v. Delhi State (Govern-
ment of NCT of Delhi), 2003 Cri LJ 4315 (SC) held that Section 80 exempts the doer of an innocent or
lawful act in an innocent and lawful manner from any unforeseen circumstances. If either of these elements
are missing then the benefit of Section 80 will not be given. In State of Orissa v. Khora Ghasi, 1978 Cri LJ 1305, while guarding his maize field at night the accused in the darkness of night saw some object entering his field. Thinking it to be an animal, he shot a arrow and it caused death of a person hiding. The case was covered under Section 80.
In R. v. Swindall and Osborne, (1846) 2 C & K 230 two car drivers after getting drunk began race
with each other and drove over an old man. Both were charged with contributing to death of deceased by
their negligence and improper conduct. The act of driving the car was not in a lawful manner.
Necessity:-
Defence of Section 81 is based on the concept of necessity. It grants immunity to person with respect to the acts done under compelling circumstances forced by necessity. It is based on the maxim quod necessitas non habet leegem i.e. necessity knows no law. Therefore, an act which is otherwise a crime may in certain circumstances be excused if the person accused shows that it was done out of necessity and in order to avoid other harm to person or property. In Re Gopal Naidu, (1923) 46 Mad 605 court held that Section 81 rests upon the principle that ‘when, on a sudden and extreme emergency one or the other of two evils
is inevitable, it is lawful so to direct events that the smaller only shall occur.
Essential ingredients:
1.Act is done with the knowledge that it is likely to cause harm;
2.It is done without any criminal intention to cause harm;
3.Act is done in good faith for the purpose of avoiding other harm to person or property
For example, ‘A’, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the
offence. In order to take benefit of Section 81 it is required to show that act complained of was done in good faith and for the purpose of avoiding or preventing a greater harm to other person or property. Explanation appended to Section 81 provides that 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. The act must be done without any criminal intention to cause harm. Intentional wrong doing cannot be justified. For example, ‘A’ sees a tiger attacking ‘B’. In order to save ‘B’ from tiger ‘A’ shoots the tiger knowing that such act might kill ‘B’ if he misses the shoot. If ‘A’ kills ‘B’ then he will get the benefit of this section because he had no intention to kill ‘B’. He only acted in good faith to avoid harm to ‘B’.
Doctrine of self preservation:-
The question whether how far the doctrine of necessity justifies killing of another person to preserve one’s own life if discussed by court in R. v. Dudley and Stephens, (1884) 14 QBD 273. In this case shipwrecked sailors killed a boy travelling along with them for food and everyone fed upon the body. It was found that if sailors had not killed the boy they would not have survived without food. Sailors took the defence of necessity. Court held that deliberate killing of a person howsoever great the temptation might be cannot be justified by necessity. The court held the sailors liable for murder. Court laid down the following:-
1.Self-preservation is not an absolute necessity.
2.No man has a right to take other’s life to preserve his own life, unless it is in self defence/private
defence.
3.There is no necessity that justifies homicide.
In Dhania Daji’s case the accused put a poison in a toddy pot with the intention of detecting thief who was in a habit of stealing toddy from the pot. That toddy was drunk by and it caused injury to some soldiers who purchased the toddy from unknown vendor. It was held that there was no necessity of
detecting thief as would justify the risk of causing harm to others. Section 80 and 81 are analogous provisions. Former deals with accident and latter deals with necessity. However, there is a difference between these two provisions. Section 80 requires absence of ‘criminal
intention’ as well as ‘knowledge’ whereas Section 81 requires absence of ‘criminal intention’ alone. Section 81 clearly postulates that the accused had knowledge that he is likely to cause harm but under the circumstances of this section such ‘knowledge’ is not held against him.
Acts of child
Sections 82 and 83 grant immunity to infant below a particular age from any criminal liability. According to Blackstone infancy is a defect of understanding and infants ought not to be punished by any criminal prosecution. Section 82 totally absolves a child under the age of 7 years and Section 83 grants qualified immunity to child between 7 years and 12 years. The law presumes that child below a certain age is incapable
to taking care of his own interest and he cannot distinguish between right and wrong.
Act of a child under seven years of age
Section 82 provides that nothing is an offence which is done by a child under seven years of Children below the age of seven years are called doli incapax. This section grants absolute immunity to child age under 7 years. It presumes that he cannot distinguish between ‘right’ and ‘wrong’. It emanates from the fact that child under seven years lacks mental ability to understand the nature and consequences of his act and therefore, cannot form the necessary mens rea. This is a conclusive presumption and cannot be rebutted by adducing evidence. In Hiralal Mallick v. State of Bihar, (1977) 4 SCC 44 Supreme Court held that the proof of age of child that he is under seven years would absolve the child of criminal responsibility.
A child exactly of seven years of age would get benefit of Section 82. The law grants such immunity because the child under such age cannot form necessary intention to constitute a crime because he lacks understanding between good and bad. This section exempts child not only from the offences under Indian Penal Code but also from the offences under special or local laws. In Queen v. Lukhini Agradani, (1874) 22 W.R. (Cr.) 27 court held that mere evidence of age would be conclusive proof of the innocence of the child and would ipso facto be
an answer to any charge against him.
Act of a child above seven and under twelve of immature understanding:-
Section 83 provides that 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 the nature and consequences of his conduct on that occasion.
Section 83 provides cases of qualified immunity. In order to claim exception under this section the child must not have attained sufficient maturity for understanding and judging the nature and consequences of the act. The prosecution has to prove that child caused actus reus with mens rea and that he had sufficient maturity to understand the nature and consequences of his conduct.
Test for qualified immunity
Test for qualified immunity depends on three factors:-
1.The nature of the act done;
2.Subsequent conduct of the offender;
3.Demeanour and appearance of the offender.
In Ulla Mahapatra’s case a boy over 11 years but less than 12 years threatened to kill a person by cutting into pieces and actually killed him. The court held that the actions of the boy could lead to one inference that he did what he intended to do and knew that his actions could kill the deceased,
In Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236 Supreme Court held that a child below the age of 7 years is completely free from any criminal responsibility but a child between 7 years of age and 12 years of age is qualified to avail the defence of doli incapax, if it is proved that he has not attained sufficient maturity of understanding to judge the nature and consequences of his act. Child above seven years of age and under twelve years of age is governed by the maxim malitia suppletaetatem which means malice supplies defect of years if in a given circumstances degree of malice is such that it would be justified that a child above seven years and below twelve years should be held liable.
Child above 12 years of age: Child above 12 years of age will incur full responsibility in criminal law, However, in such circumstances the whole process of trial, sentencing, rehabilitation etc. will be governed by Juvenile Justice (Care and Protection of Children) Act, 2015. Under the scheme of Juvenile Justice Act all persons who are below the age of 18 years on the date of commission of the offence shall be treated as
juveniles even if the claim of juvenility was raised after they had attained the age of 18 years.
Unsoundness of mind-Insanity
Section 84 deals with unsoundness of mind as a defence to a criminal charge. This concept is based on the principle that a person who is insane cannot have necessary mens rea to commit a crime. As a general rule criminal intent is necessary in order to commit the crime and therefore, mental capacity of wrong doer is necessary. A person may lack sufficient mental capacity due to defect in mental capacity, Unsoundness of mind or insanity is a defect of mind which impairs the mental faculties of a man. Such mental abnormalities may arise due to various factors and may exist in various degrees. Insanity in terms of law (legal insanity) means disorder of mind which impairs reasoning capacity of a person to such an extent as to render him incapable of understanding the nature and consequences of his action. Number of tests have been laid down from time to time to adjudge the degree of insanity. The most notable among them is one developed in McNaughten’s case.
In Lakshmi v. State, AIR 1959 All 534 court held that what Section 84 lays down is not that the
accused claiming protection under it should not know an act to be right or wrong but the accused should
be incapable of knowing whether the act done by him is right or wrong. Capacity to know a thing is quite
different from what a person knows. Inherent or organic incapacity is protected and not the wrong or
erroneous belief.
In Dayabhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 Supreme Court held that when a plea
of insanity is setup the crucial point of time for ascertaining the state of mind of the accused is the time
when the offence was committed.
Wild beast test:
This test was developed in R. v. Arnold, (1724) 16 St. Tr. 695. According to this test a person can
claim exemption from liability if by reason of unsoundness of mind the person was unable to distinguish
between good and evil and also did not know what he did.
Insane delusion test:
This test was developed in Hadfield’s case. According to this test insanity is to be determined by the
fact of fixed insane delusions with which the accused was suffering and which was direct cause of the
crime.
McNaughten Rule:-
McNaughten’s case is an important decision on question of insanity. In this case the accused suf
fered from a delusion that Sir Robert Peel, the then Prime Minister of Britain had injured him. He mistook
Edward Drummond, Secretary to the Prime Minister for Robert Peel. He shot and killed him. The medical
evidence showed that accused was labouring under a morbid delusion which carried him away beyond the
power of his own control. House of Lord laid down the following propositions :-
(1) Every man is presumed to be sane and to possess sufficient degree of reason until contrary is
proved to the satisfaction of the court.
(2)To establish the defence of insanity it must be clearly proved that at the time of committing the
act the accused was labouring in defect of reason.
(3)If the accused was conscious that the act which ought not be done or it was contrary to law then
he would be punishable.
The Indian law of insanity is based on the opinion of McNaughten case. The term “insanity’ is not
used in Section 84. Courts in India have treated the expression ‘unsoundness of mind’ as equivalent to
insanity’.
Act of a person of Unsound mind:-
Section 84 provides that 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.
The crucial point of time of such incapability due to unsoundness of mind is the time when he
committed the offence [Hari Singh Gond v. State of Madhya Pradesh, AIR 2009 SC 31]. In order to
prove the defence of unsoundness of mind the following elements have to be proved:-
- Medical unsoundness: Firstly, the accused will have to prove that he was suffering from some kind
of medical unsoundness. It means some kind of mental disease which is capable of taking away
the power of rational thinking. Medical unsoundness is the disease of mind which affects the
mind to such an extent that the accused loses the control upon his body and is not capable of
making right decisions. The words by reason of unsoundness of mind’ under Section 84 refer to
medical unsoundness. The accused has to prove such medical unsoundness by production of
medical certificate.
2.Legal unsoundness: Apart from the medical unsoundness referred above the accused has to prove
legal unsoundness as well. It must be noted that proving medical unsoundness simpliciter will not
give the benefit of Section 84. Legal unsoundness can be proved by proving that due to medical
unsoundness existing at the time of commission of offence the accused was incapable of knowing
the nature of the act and the act he was doing was either wrong or contrary to law.
Unsoundness of mind must exist at the time of commission of offence and the onus is on the accused
to prove the unsoundness of mind. Supreme Court in State of Madhya Pradesh v. Ahmadulla, AIR
1961 SC 990 held that if at the time of committing the act the accused was labouring under such a defect
of reason, as not to know the physical nature and quality of the act he was doing, or that although he knew
its nature he did not know it was either wrong or contrary to law then the benefit of this section can be
given. In coming to this conclusion the relevant circumstances like behavior of the accused before and after
commission of the offence must be taken into consideration.
The expression ‘nature of the act’ means the character and consequence of the act. Due to unsound-
ness of mind, the accused should have been incapable of understanding as to what he was doing and what
would be the consequences. The accused is not protected if he knew that what he was doing was wrong.
Intoxication:-
Indian law on involuntary and voluntary drunkenness is contained in Sections 85 and 86 respectively. A
combined reading of Sections 85 and 86 reveal that the former lays down the law relating to involuntary
intoxication as a defence of criminal charge while the latter deals with criminal liability of a voluntarily
intoxicated person.
In order to take the benefit of Section 85 it must be proved that intoxication is caused against the will
or without the knowledge of the accused. Voluntary intoxication is not a defence even though due to such
voluntary intoxication the accused was incapable of knowing the nature of the act. Section 85 provides that
nothing is an offence which is done by a person who, at the 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
The thing which intoxicated him was administered to him without his knowledge or against his will.
The expression without his knowledge or against his will’ means ignorance of the fact that what is
being administered is an intoxicant. Where the drunkenness is involuntary the criminal act of a person will be
judged with reference to his mental condition at the time when the act was committed. In Jethuram
Sukura Nagbanshi v. State of Madhya Pradesh, (1960) Cr LJ 1093 court held that in cases where the
person is involuntarily intoxicated, he cannot be said to have acted on his own accord and therefore, he is
not responsible for his own acts.
In Paul v. State of Kerala, (2020) 3 SCC 115 Supreme Court held that so far as knowledge is
concerned in case of voluntary drunkeness, knowledge is to be presumed in the same manner as if there is
no drunkeness. So far as intention is concerned, it must be gathered from attending general circumstances
of the case.
In Director of Public Prosecution v. Beard, 1920 AC 479 court laid down that where a specific
intent is essential element of offence, evidence of a state of drunkenness rendering the accused incapable of
forming such an intent should be taken into consideration in order to determine whether he had in fact
formed the intent necessary to constitute a particular crime. It must be noted that mere fact that an intoxi-
cant was administered to him by another person without his knowledge or against his will, does not qualify
him for exemption under this section. What is required to be established that he, by reason of the intoxicant
adminstered to him without his knowledge or against his will by someone elese, lost his ability to understand
the nature of the act committed by him. The court held that evidence of drunkeness falling short of a
proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends that natural consequences of his acts.
Offence requiring a particular intent or knowledge committed by one who is intoxicated:
Section 86 IPC
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 86 creates a rule of presumption in cases where the intoxication is voluntary. In case of
voluntary intoxication, there can be a case where that the intoxication was so excessive that due to such
intoxication the accused became incapable of knowing the nature of the act. In such cases Section 85 shall
not apply. Section 86 provides that if an offence requiring such a knowledge or intention is committed by
self-induced intoxication, only knowledge, and not intention, of the offence on his part will be presumed.
In effect, Section 86 imputes the same knowledge to a man intoxicated voluntarily as he would have had
had be not been intoxicated. Degree of intoxication required in both the sections is same. In both the
sections it is required to be shown that the degree of intoxication made the person incapable of knowing
the ture of the act or that what he is doing is either wrong or contrary to law.
Voluntary drunkenness under Section 86 does not afford a defence where merely knowledge required
to constitute the offence was wanting, though it may be used to show that any intent it required was absent.
In Basdev v. State of Pepsu, AIR 1956 SC 488, Supreme Court held that the court will only presume the
existence of knowledge and not intention as mens rea. A person who gets into the state of intoxication
voluntarily is presumed to have the same knowledge as he would have had if he had not been intoxicated.
This presumption of knowledge in cases of voluntary intoxication is a rebuttable presumption. Intention is
the highest degree of mind and it cannot be presumed. It has to be proved by the prosecution on the basis
of facts and circumstances of the case.
Consent
Sections 87, 88, 89 and 92 deal with the defence related to consent. These provisions lay down circum-
stances where consent may be pleaded as defence. The element of consent condones the offences against
human body and those against property. The law related to consent is based on maxim volenti non fit injuria
i.e. he who consents suffers no harm. Man is best judge of himself and no man will consent to what he
considers injurious to his interest.
What is Consent?
The term ‘consent’ is not defined in the Code. According to Stephen, ‘consent’ means consent freely
given by rational and sober person so situated as to be able to form a rational opinion upon the matter to
which he consents. Supreme Court in State of Uttar Pradesh v. Naushad, AIR 2014 SC 384 held that
consent is an act of reason coupled with deliberation. Section 90 further states that consent is no consent if
it is given under fear of injury or misconception of fact. Therefore, it follows that consent should be free in
order to avail it as a defence. In Deelip Singh Dilip Kumar v. State of Bihar, AIR 2005 SC 203
Supreme Court held that consent obtained by intimidation, force, mediated imposition, circumvention,
surprise or undue influence is a mere delusion and not a deliberate act.
Consent known to be given under fear or misconception:-
Section 90 provides that it should be proved in order to mitigate the liability that the victim has
consented to suffer wrong or injury freely. The consent should not be given by-
1.A man under fear of injury or under misconception of fact.
2.A child under twelve years of age.
3.By an insane who is unable to understand the nature and consequences to which he had given his The term misconception of fact refers to misconception regarding true nature of facts. Consent can be express or implied. The question of consent is dependent on facts and circumstances of each case. Section 87 gives immunity to a person from criminal prosecution on the ground of consent in general. Sections 88, 89 and 92 extend protection in those cases only where the harm is caused in good faith during
the course of doing an act for the benefit of consenting party.
Act not intended and not known to be likely to cause death or grievous hurt, done by consent :
Section 87 is based on the principle ‘volenti non fit injuria’.Essentials of Section 87
1.The act should not be intended to cause death or grievous hurt.
2.It should not be known by the doer to be likely to cause death or grievous hurt.
3.The harm caused to a person is with his express or implied consent.
4.The person who give consent is above 18 years of age.
5.The act should be in good faith.
For example, ‘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.
It must be noted that the immunity granted under this section will not justify causing of death, grievous
hurt or any other harm which is known by the doer to be likely to cause death or grievous hurt. This section
will only apply when mens rea or intention to cause death or grievous hurt on part of the doer is completely
absent. This section does not permit a man to give his consent to anything intended or known to be likely
to cause death or grievous hurt.
Basis of Section 87: Section 87 is based on two fundamentals; (1) every person is the best judge of
his own interest and (2) no man will consent to what he thinks is hurtful to himself.
Act not intended to cause death, done by consent in good faith for person’s benefit:-
Section 88 has the following ingredients. The act is not an offence if:-
1.The act is done is without the intention of causing death. Although it may amount to an offence
by reason of any harm.
2.The act is done with the consent (express or implied) of the victim.
3.The act is done in good faith.
4.The act is done for the benefit of the person.
For example, ‘A’, a surgeon, knowing that a particular operation is likely to cause the death of ‘Z’, who
suffers under a 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.
Generally, this section is used in cases related to doctors in order to grant them immunity against
surgical operations. The element of good faith and benefit of person has to be proved in order to avail the
benefit under this section.
Difference between Section 87 and 88 IPC:
Following are the points of differences between Section 87 and 88:-
1.Under Section 87 the person consenting must be above 18 years of age.
2.Under Section 88 age of person consenting is irrelevant.
3.Under Section 87 an act may not be for the person’s benefit. Under Section 88 the act should be for person’s benefit.
Act done in good faith for benefit of child or insane person, by or by consent of guardian:
Section 89 has following ingredients.
Act is not an offence if:-
1.The act must be done for the benefit of the person;
2.It must be done in good faith;
3.The person may be under twelve years of age, or of unsound mind.
4.The act must be done by his consent (express or implied) or consent of the guardian or other person.
having lawful charge of that person.
The immunity granted by this provision is not absolute. It is subject to 4 provisos appended to this
section. These provisos are:
According to Proviso 1 this provision shall not extend to the intentional causing of death, or to the
attempting to cause death.
Proviso 2 states that this section shall not extend to 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.
Proviso 3 state that it shall not extend to the voluntary causing of grievous hurt, or to 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.
Proviso 4 states that it shall not extend to the abetment of any offence, to the committing of which
offence it would not extend.
Act done in good faith for benefit of a person without consent:
Section 92 provides that 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.
For example, ‘Z’ is thrown from his horse and is insensible. ‘A’, a surgeon, finds that ‘Z’ requires to 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.
‘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.
Section 92 covers emergency situation which are not covered under Section 89. Consent may
dispensed with when the circumstances are such as to render consent impossible
incapable of giving consent.
Communication made in good faith:-
Section 93 provides that 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.
For example, ‘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.
In X v. Hospital Z, AIR 1999 SC 495 Supreme Court held that Hospital Z and doctors were
protected under Section 93 for disclosing to the prospective bride that the appellant was HIV positive. This
communication led to cancellation of marriage.
Act to which a person is compelled by threats
Section 94 provides that 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.
The person should not on 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.
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.
According to 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.
This provision is based on the maxim actus me invite factus est nisi actus, i.e. ‘an act which is done by me
against my will is not my act and I am not responsible for it.’ In other words voluntary act is essential to
constitute crime. It is not every threat of injury that will excuse a man from punishment. The threat in order
to attract benefit of Section 94 must be of instant death to the person compelled to commit the offence.
Act causing slight harm
Section 95 provides that 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. This section is based on maxim De Minimus Non Curat Lex i.e law does not take into account trifles.
This section is intended to prevent penalization of negligible wrongs. Section 95 will come into play only
when the act complained of amounts to an offence and no person of ordinary sense and temper would
complain of it. Where the act is of such a nature that it will not be an offence, even independent of this
section, then there is no question of applying this section.
In Amish Devgan v. Union of India, (2021) 1 SCC 1, Supreme Court held that Section 95 of theIndian Penal Code is intended to prevent penalization of negligible wrongs or offences of trivial nature.
Whether asn act, which amounts to an offence, is trivial would depend on the evidence collected in relation
to injury or harm, the knowledge or intention with which the offending act was done and other related
circumstances.
RIGHT OF PRIVATE DEFENCE is given in next article.