General exceptions to criminal liability under IPC
The Indian Penal Code, 1860 is a substantive legislation that outlines many crimes and their associated punishments. According to the dictum “actus non facit reum nisi infers sat rea,” for an act to qualify as a crime, it must be accompanied with sufficient mental intent, or mens rea. The IPC offers the accused a number of exemptions from Section 76-106 in Chapter IV. The lack of mental intent is the basis for some of these defences. There are mainly seven defences in this Chapter. These General Exceptions provided in the IPC can be broadly classified as – justifiable acts and excusable acts. In excusable defences, the act is excusable because he cannot be blamed for it even though the act caused harm. In case of justifiable acts, the act is generally a crime, but due to the special circumstances it is justified by law and is not treated as crime.
Generally, the onus of proof is placed on the prosecution. The prosecution is expected to prove their case beyond reasonable doubt to convict a criminal. But when it is the defendant who is attempting to avail a defence, the burden of proof is placed on the defence counsel, though the standard is different. While the prosecution has to prove their case beyond reasonable doubt, the defence has to make a prima facie case for availing these defences.
The defences provided in the IPC are:
MISTAKE OF FACT (Section 76 and 79)
Section 76 of the IPC provides an exception for the acts done under mistake of fact which makes the doer believe that they are bound by law to do it. Section 79 of the IPC provides an exception for the acts done under mistake of fact which makes the doer believe that they are justified by law to do it.
As per the Latin maxim , “ignorantia facti doth excusat, ignorantia non juris excusat” , that is, only mistake of fact can be considered as a defence and not mistake of law. Every individual is expected to know the law and interpret it in the way it is supposed to be interpreted.
In Queen v. Tolson , the accused’s husband went missing and six years later, she remarried under the presumption that he died in the sea. When her husband came back after 11 months of her marriage she was accused of bigamy. Mrs. Tolson was excused for her actions because of the common law rule that an act done under honest and reasonable belief can make it innocent and can be used to acquit the individual.
In M.H George v. State of Maharashtra , the accused was prosecuted for smuggling gold into the country. The defendant claimed that since he did not know the law in the country he cannot be punished since he lacked mens rea, but the court found that mistake of law is not a defence.
A judge cannot be convicted for the actions he did as part of his office as long as he is acting judicially as given in Section 77. Similarly, Section 78 of the IPC provides that an officer cannot be convicted for carrying out judicial orders.
As explained in Section 80, an act which is not done voluntarily, but by accident and lacks mens rea cannot be considered as an offence as long as the act was done during the commission of a lawful act in a lawful manner.
Patreswar Basumatary v. State of Assam discussed about the defence of accident. In this case, two brothers were sleeping next to each other, and the defendant saw a dream of somebody throttling him, a semi-conscious state, the accused took a dao and hit the deceased. The accused was provided the defence of accident.
In Woolmington v. DPP , the accused took a gun to his wife’s house and shot her. He claimed that he did not intend to kill her, but only to scare her into thinking that he will kill himself so that she will get back with him, and the shot was fired accidentally and Woolmington was acquitted for the crime.
Necessity or Inevitable Accident
Section 81, IPC of the provides the defence that an act which was done to prevent a greater harm.
If the act was done without any criminal intention, but if the doer foresaw the consequences of his act, but still committed the act for preventing a greater harm then he cannot be convicted for the offence.
The defence of necessity was largely discussed in the case, R v. Dudley & Stephens , where the accused and another were trapped in a boat after shipwreck. After 20 days without food, the accused decides to kill the boy who was sick to feed on his flesh. The court convicted them for killing the boy and laid down that :
- Self-preservation is not an absolute necessity
- Taking another’s life in order preserve his own is not a right given to anyone
- Homicide cannot be justified by any necessity
In R v. Bourne, the wife was acquitted for bestiality since she committed it under duress due to her husband terrorising her.
Section 82 and 83 of the IPC, provides the defence of infancy. The Code says that an act which is done by an infant who is under the age of 7 shall not be considered as a crime. Similarly, the act done by a child under the age of 12 but lacks a maturity of understanding is also not considered to be an offence. This is based on the principle doli incapax, that is, ‘incapable of doing any harm or incapable of committing a crime’ and it is presumed that a child is incapable to form a criminal intent.
In Hiralal Mallick v. State of Bihar the accused was a 12 year old who murdered the deceased with his brothers and was convicted under Section 302 and 34 of the IPC. The court being considerate of his age reduced his sentence to a 4 year rigorous imprisonment.
;Section 84 of the IPC, provides exception to the crime done by an insane person.The criteria for availing this defence is that the accused must be unable to know the nature of the said act or is unable to comprehend that the act is illegal or unlawful in nature, that is, the court does not presume a person who is medically insane to be legally insane.
The McNaughten Case is famous for framing the McNaughten Rules. In this case the court acquitted a person who intended to kill the Prime Minister but then killed his Secretary on grounds that he wasn’t aware of the consequences of his action.
In Ashiruddin Ahmed v. State the accused claimed that he saw a dream in which he was ordered to kill his five-year old son. The accused presuming it to be the command of the God, took his son to the mosque and killed his son, following which he went to his uncle and narrated the event. The accused used the defence of insanity which was granted to him by the court.
As per Section 85 and 86 of the IPC, a person who is involuntarily intoxicated can be acquitted if he is unable to understand the nature of his act.In DPP v. Beard, the accused was intoxicated and was raping a minor but he accidentally killed her when he tried to keep his hand over her mouth to stop her from screaming. He was found guilty of murder but of unlawful homicide without malice which amounts to manslaughter.
Sections 87-92 provide the exception for consent in IPC. S.87 explains that an act that was done with the consent of the victim but caused harm to him is not punishable as long as the fear was not under misconception or fear. In Rex v. Tunda, the victim and the accused were having a friendly wrestling match during which the victim hit his head and eventually died. Since there was implied consent from both the parties, the accused was acquitted.
Sections 88,89 and 92 provide defence for acts done in good faith. S.88 explains that when an act is done for the benefit of the victim with the victim’s consent then the act is not a crime, while S.89 says that an act done for the benefit of a person who is incapable to give consent, like minor or insane person, but if the doer has obtained consent from the legal guardian then even if the act results in harm the doer is not criminally responsible. S.92 explains about emergency situations where it is not possible to obtain the consent of the victim, but the doer does the act in good faith for the benefit of the victim then the act is not a crime.
S.90 and S.91 provides two exceptions to the defence of consent. S.90 explains that if the consent was obtained under misconception or by fear then the consent is not valid and S.91 says that an even if the victim gives consent to do an act which independently cause harm, the act will not be provided the defence of consent.
Tuxa Ram v. State of Maharashtra or the Mathura Rape Case largely dealt with the concept of consent in sexual intercourse. The case dealt with custodial rape. When the highest court in the country acquitted the accused stating that since the victim was accustomed to sex she might have incited the police officers to have sex with her, public outrage and an open letter written to the Supreme Court led to a reformation in the system that if the women says that she has been raped then the court will presume that she was and the Criminal Amendment Act 1983.
It is the state’s duty to protect its citizens from harm. But it is not possible for the state to protect all, so the Penal Code provides for situations where one has to protect himself. S.96-106 deals with acts are done as private defence. S.97 explains that private defence can be extended to not only one’s own property and body but also that of another. Private defence is usually for protecting one against crimes, but as per S.98 it can be extended to the acts of harm done by a minor or an insane person even when the act itself is not considered as a crime. S.99 explains to what extent the defence can be used. The exception can be used only if there is a reasonable cause for apprehension of fear of harm and the act done must be proportional to possible harm. It cannot be used against the acts of a public servant under his official duty. The defence is also not extended to when there was sufficient time to gain the protection of public authorities.
S.100 and S.103 explains the situations where private defence can cover the acts which cause death. According to the Section 100, it is only when there is reasonable apprehension of death/ grievous hurt, or against an assault that is intended to commit rape or satisfy unnatural lust, etc. As per S.103, acts causing death can avail the defence of private defence only if it is robbery, housebreaking, trespass. S.101 & S.104 says that if the act is not given in S.100 or S.103 respectively, then private defence cannot be extended to death but for acts not causing death, this defence can be used. S.102 and S.105 explains when the right to private will start and when it will end – it commences when the reasonable apprehension of fear begins. Sections 100,101,102 explains private defence for protection of body, while Section 103,1004,105 explains private defence for protection of property. S.106 provides that act done in private defence can even extend to innocent people when there is a risk of deadly harm.
The IPC also provides for defences for situations when the act done is so trivial that it does not extend to a crime (S.95). In S.94, it says that if the act is done by a person who is threatened with instant death it does not constitute a crime since that person did it under duress and was compelled to do so.
 Queen v. Tolson (1889) 23 QBD 168
 1965 AIR 722, 1965 SCR (1) 123
 1989 CrLJ 196 (Gau).
  UKHL 1
  EWHC 2 (QB)
  36 Cr App R 1251
 1977 AIR 2236
 AIR 1950 CrLJ 225.
 1920] AC 479
 1950 Cr. Lj. 402 (All. HC)
 1979 AIR 185
Author: Crystal Ann,
2nd year, National University Advanced Legal Studies