NECESSITY AS A DEFENCE IN IPC
Necessity is a defence in both IPC (criminal law which we are going to discuss today ) as well as in civil law. Necessity as a defence is defined under section 81 of the IPC as “Act likely to cause harm, but done without criminal intent and to prevent other harm.- An act that is likely to cause harm, and done with knowledge, but done in good faith without any criminal intent, to prevent or avoid other harm or harm of a greater extent”. Illustration can give a clear picture of defence of necessity in the reader’s mind.
Illustration- ‘A’ is a captain of a ship and was sailing into the ocean. Suddenly, two boats one with two passengers and the second with 10 passengers case in front of the ship in that way that accident is inevitable and there was not any possibility to avoid it. ‘A’ ordered to hit the boat with two passengers. During the trial, the court held that ‘A’ is not guilty of homicide as he ordered to avoid harm to a great extent.
Essential elements of Necessity in IPC
• The act must not be done with a criminal intent to cause harm and done without any evil intention
Illustration- Ramesh sees a bear is going to attack Suresh. Ramesh to save Suresh fired a shot. Here, if, unintentionally bullet will hit Suresh; he would not be held guilty of homicide as he had done this act without any criminal intention.
• The act must have been in good faith and without any malicious intent. If there is the presence of any type of evil intention, he will be held liable for the offence.
• The act must have been done to prevent other harm. It is significant that to get the defence of necessity, the offence committed must have been done to avoid the other harm.
Burden of proof-
The burden of proof lies on the defendant. The overall Exceptions are given within the Indian legal code, 1860 presume the absence of malice aforethought, which means that there could also be a presumption against the accused and therefore the burden to prove this presumption lies on the accused.
US vs. Holmes –
A longboat with passengers and crew of a sunken American ship was cast adrift in a stormy sea. Due to being overweight, the crew member threw some passengers out of the boat. During the trial of one of the crew members, it was held by the judges and the jury that he can’t be charged for homicide as he has not selected the person before throwing fairly and this shows that he had not had any criminal intent and he did so in good faith to save the life of passengers and crew members on board.
R v. Bourne
In this case, a young girl, who was a rape victim got pregnant. In the opinion of the doctor, a gynaecologist, if she will deliver a child, then, her life could be in danger. The doctor with the consent of her parent in good faith performed the abortion. The court held that the defendant (doctor) is not guilty of “unlawfully procuring a miscarriage” because the defendant had no criminal intent and performed the abortion in good faith to save the child.