This article has been written by Ms. Leezer Kaur, a 3rd-year student at the Army Institute of Law, Mohali.
TITLE: GENERAL DEFENCES UNDER THE INDIAN PENAL CODE,1860
The Indian Penal Code, of 1860 provides for punishments for various crimes. It is not no necessary that a person will be punished for all the offenses. Sometimes, there may be exceptional cases where the punishment will not be applicable. These are recognized under ‘General Exceptions’ under Chapter IV of the Indian Penal Code, 1860. The object behind the introduction of this new Chapter was to provide for the exceptional cases where an individual may escape liability and to make the code simpler by removing the repetition of these exceptions. Before the Indian Evidence Act, of 1882, the prosecution was also supposed to prove that the case didn’t fall in any of the exceptions provided under the Code but now, Section 105 of the act makes it a duty of the claimant.
The General exceptions or the defenses can be claimed for the acts under the following two categories:
- EXCUSABLE ACTS
It includes those acts where the harm is caused by the person yet the person could not be blamed and is excused for his actions. For ex- when a person is of unsound mind or is a minor or may be intoxicated.
It includes the following defenses:
- MISTAKE OF FACT
Section 76 of the Indian Penal Code, 1860 provides that when a person due to the mistake of fact and in good faith believes that he is bound to do that act then such act done by the person will not be punished. Section 79 provides that nothing is an offense that is done by a person justified by law under the mistake of fact and in good faith. However, a ‘mistake of law’ is not covered under these provisions and it cannot be considered a defense.
Section 80 of the Indian Penal Code provides it as an exception to the punishments under the code and it includes an offense that is done by accident or misfortune without any such intention or the knowledge of the consequences, if it was done lawfully and with proper care and caution.
Section 82 of the code provides that no act of a child below seven years of age can be punished and Section 83 provides that if the child is above seven years of age but below twelve years of age and could not infer the consequences of the act done by him then that child cannot be punished.
Section 84 provides that an act of a person who could not understand the nature of the crime committed by him because of his unsoundness of mind would not be punishable.
Section 85 provides that when a person was intoxicated without his will or knowledge and was unable to understand the nature of the act then he will not be punished. Section 86 also provides intoxication as a defense.
- JUDICIALLY JUSTIFIABLE ACTS
It includes those acts which would have been punishable under normal circumstances but could not be punished in the circumstance in which it was committed by the person. For ex- an act done for private defense or with the consent of the other party. It includes the following defenses:
- JUDICIAL ACT
Section 77 of the Indian Penal Code, 1860 provides that an act done by a judge in his judicial capacity and good faith cannot be punished. Section 78 provides that an act done in furtherance of an order of the court cannot be punished if the person acts in good faith and believes that the court in question had jurisdiction over the case.
Section 81 of the Code provides that an act of the nature of a crime that is done without any such criminal intention and in good faith to prevent harm to a person or property is not punishable.
Section 87 of the Indian Penal Code, 1860 provides that an act that is not intended to or likely to cause death or grievous hurt and is done with the consent of the other person cannot be punished.
Section 89 of the Code provides the exception of an act done for the benefit of a child or insane person with the consent of the guardian and in good faith. Section 92 provides that if the person was unable to give his consent or circumstances made it impossible to take consent and an act is done for the benefit of a person and in good faith then the act will not be punished. However, Section 90 of the Code provides that if the consent is taken under fear or mistake of fact then that will not constitute valid consent, to act as a defense.
Section 93 of the Code provides that if a communication is made in good faith without any intention to cause harm to the other person then that will not constitute an offense.
Section 94 of the Code provides that when a person acts under any threat by a third person then that person will not be held liable for the act. However, it is not applicable in murder cases.
An act resulting in very slight harm of which a person of sound mind will not complain then won’t constitute an offense and will act as an exception.
- PRIVATE DEFENCE
Sections 96 to 106 of the Indian Penal Code, 1860 provide ‘private defense’ as an exception or defense for the punishments under the Indian Penal Code, 1860.
Section 96 provides that nothing done in private defense by a person will constitute an offense. Section 97 provides that the right of private defense of property or person can be used subject to reasonable restrictions only. It may extend to causing death in case of reasonable apprehension of death, grievous hurt, or rape. However, it will not be applicable if the person had the opportunity to recourse to the police authorities.
In the case of Krishna Bhagwan v. State of Bihar, the court held that if a child attained the age of seven years on the date of the decision and has the proper understanding of the consequences of the act then he cannot claim a defense under the Indian Penal Code.
In the case of Babu Sadashiv Jadhav’s case, the court held a person liable for his wife’s murder under Section 304 of the Indian Penal Code who was voluntarily drunk, and the defense of intoxication was not provided to him.
In the case of Poonai Fattemah v. Emperor(1869), the accused induced the deceased to believe him that he had the power to protect him from the snake bite and received the consent of the deceased. The court held that the defense of consent cannot be claimed by the snake charmer.
In the case of R.P. Dhanda v.Bhurelal, a doctor performed an eye operation on the person with his consent in good faith but that resulted in the loss of eyesight. The defense of consent was held applicable in this case.
In the case of Yogendra Morarji v. State, the court held that the right to private defense up to the extent of causing death can be used only when there is no mode of escape from imminent life or bodily harm.
In the case of Mohinder Pal Jolly v. State, some protesters threw bricks at the building which resulted in the death of one of the factory workers. The court held that it was a case of mischief and no defense could be claimed by the person.
Chapter IV of the Indian Penal Code, 1860 provides for some general exceptions to the punishments laid down under the Code. It includes excusable acts like intoxication, insanity, infancy, accident, etc., and judicially justified acts like consent, communication, private defense, trifles, etc.
- Krishna Bhagwan v. State of Bihar.
- Babu Sadashiv Jadhav v. State Of Maharashtra.
- Poonai Fattemah v. Emperor.
- R.P. Dhanda v.Bhurelal.
- Yogendra Morarji v. State.
- Mohinder Pal Jolly v. State.
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