Chapter IV – General Exceptions

Ss.76-106 IPC

The General Exceptions stipulated under Sections 76 to 106 of

the IPC, 1860 includes the following:

Mistake of fact (Sections 76 and 79)

Accident (Section 80)
Necessity (Section 81)
Infancy (Sections 82 and 83)
Insanity (Section 84)
Intoxication (Sections 85 and 86)
Judicial Act (Sections 77 and 78)
Consent (Sections 87- 91)
Communication (Section 93)
Duress (Section 94)
Trifles (Section 95)
Private Defense (Sections 96 – 106)

Mistake of Fact-

Section 76 - Act done by a person bound, or by mistake of fact

believing himself bound, by law

Nothing is an offense 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.

Illustrations

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.
A, an officer of a Court of Justice, being ordered by that Court to
arrest Y, and after due enquiry, believing Z to be Y, arrests Z. A
has committed no offence.

This exception excludes a person from criminal liability where the

person was mistaken as to the existence of some facts or ignorant
of the existence of such facts. The mistake must pertain to “fact”
and not law as“Ignorance of the law is not an excuse”. This is
encapsulated in the maxim “ignoratia juris non excusat”.

Essential elements-
For the defense to be established, the person must satisfy the
following that:

 He is bound by law to perform an act

 He has the belief himself that he was bound by law to perform
such act
 Such belief was a mistake of fact and not law
 He exercised such belief in good faith

In Chirangi v. State 1952 CR LJ 1212, the accused went with his

son to a hill in order to gather leaves. Thinking
it was an animal, he assailed him with an ax. The accused was
said to have been mistaken and thus acquitted.

Judicial Act-(Sections 77 and 78)

Section 77. Act of Judge when acting judicially.—Nothing is an

offence which is done by a Judge when acting judicially in the
exercise of any power which is, or which in good faith he
believes to be, given to him by law.

This exception excludes judges and it is done in compliance with

an order of the court.

Essential Elements-
For the defense to be established under the act of a judge
(Section 77), he must satisfy the following that:

 The act was performed by a judge

  The judge acted judicially in the exercise of the power
conferred upon him
 He exercised such power in good faith

In Surendra Kumar Bhatiya v. Kanhaiya Lal & others AIR 2009

SC 1961, it was held that a collector exercising his power under
the Land Acquisition Act is not a judge neither could he act
judicially.

Section 78. Act done pursuant to the judgment or order of

Court.—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.

For the defense to be established in compliance with a court

order (Section 78), the following ingredients must
be satisfied:

 There must be a judgment or an order of the court

 Such judgment or order must be in force
 The court must have jurisdiction to pass such judgment or
order
 The person must exercise good faith believing that the court
had jurisdiction

Mistake of law Vs mistake of fact in the Indian IPC

A mistake of law is the legal principle which refers to one or more

mistakes which are made by an individual in understanding how
applicable law is applied to their past activities which are under
analysis by the court. In jurisdictions, use of the term Mistake of
law is different from that of mistake of fact.

"Ignorance of the law is no excuse" is one of the principal in the

law. A mistake of law is not a known defense because such
mistakes might fall under the legal category of "exculpation". A
mistake of fact is normally called simply "mistake" in criminal
cases.

The mistake of Fact means it is a wrong belief as to something

factual. There is no excuses, except in the cases where the motive
is an important ingredient. Execution of such mistakes is
according to the Sections 76 and Section 79 of IPC. The mistake
of a fact is just a mistake relating to some fact.

Sections 76 and 79 of Chapter-IV (General Exceptions) of the

Indian Penal Code, 1860 describes the provisions related to
“Mistake of Fact” & “Mistake of Law”. These are based on the
common law maxim “Iqnorantia facti doth excusat; Ignorantia
juris non excusat.”

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.

Illustrations

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 fact, seizes Z, in order to bring Z before the
proper authorities. A has committed no offence, though it may
turn out that Z was acting in self-defence.
Accident-(Section 80)

Accident under section 80 under the Indian Penal Code falls

under the chapter of general exceptions. This article was made
with the objective of keeping in mind the students of law who
are nowadays in dire need of material which simplify the law
than complicating it.

"Accident", a word which is used in everyday life to indicate a

course of events over which a person had no control over and
which could not be avoided despite due diligence and care.
Section 80 talks about accident as a general exception and which
can lead to avoidance of criminal punishment and liability if
established fully before a court of law. Law does not intend to
punish a man of the things over which he could possibly have no
control over. Actus non facit reum nisi mens sit rea only works
as a reminder that criminal law in order to punish seeks some
kind of guilty mental element to punish a person. This implies
that a person when does not intend and cannot even contemplate
occurrence of a certain course of events, cannot be held
responsible for the happening of that event.

Essentials
Nothing is an offence
When studying chapter IV which talks of general exceptions, the
phrase "nothing is an offence" appears frequently. This phrase
has to be read with section 6 of the Indian Penal Code which says
that the offences be read subject to general exceptions as given
under chapter IV. Hence, the phrase elucidates that when a
particular situation falls under section 80 and satisfies the
ingredients given it will not be an offence.

Done by accident or misfortune

Accident comes from the word accidere which means to happen
or befall upon, whenever we use this term in daily life it usually
reflects a course of events out of our control. As they say
"Accidents happen", this indicates the core of this general
exception that there was no fault of a party which led to the
unwanted consequence. The second term used i.e "Misfortune" is
synonymous with bad luck or an event which was undesirable.
Misfortunes are similar to accidents but with the only difference
that accidents result in harm to others but misfortune may also
result in harm to the doer.

Without any criminal intention or knowledge

Criminal intention or knowledge as reflected in the second
constituent of crime under criminal law i.e "Mens rea" is one of
the vital part which is necessary to make an individual liable for
his acts. Intention is when the accused brings about the very
result which it was his purpose to bring about, he is said to have
acted intentionally. In criminal jurisprudence it is presumed that
a man intends the natural consequences of his act. Knowledge on
the other hand means an acquaintance with the fact or the truth
pertaining to a certain event, it involves awareness of a fact, belief
or mental impression and many offences under the IPC make
"knowingly" doing of an act as punishable. Accidents and
misfortunes by their very nature negate the presence of a
criminal intention or knowledge and on this ground the accused
may be excused from criminal liability. In State of M.P. v.
Rangaswamy AIR 1952 Nag. 268, accused though that he’d seen a
hyena 152 feet away and shot at its direction. But later on it was
found out that it was a person, he pleaded that it was raining and
had a bonafide impression that it was a hyena and he in order to
protect the people around him fired the shot. Court held that he
will be entitled to the benefit under section 80 as besides the
other facts, there was no expectation of any other person being
present in the area where the shot was fired which resulted in the
death of a human being.

Lawful act in a lawful manner by lawful means

It is important that the act which was being done was lawful, in a
lawful manner and by lawful means. As in Tunda v. Rex (skip to
relevant cases part for brief story) , besides the defence of section
87(consent), section 80’s benefit was also given due to the fact
that there was no foul play by the deceased and both friends
impliedly agreed to accidental injuries while going for a wrestling
bout with each other. A woman who in order to discipline her
child, hits him with an iron rod but the rod hits another child and
causes injury will not be entitled to the defence of accident as the
act itself lacks lawfulness and cannot be said to be in a lawful
manner and by lawful means.

With proper care and caution – Act done without any regard to
proper care and caution also come within the purview of mens
rea as they come under the concept of negative mens rea.
Offences such as criminal negligence have this negative mens rea
imbibed in them. In these cases a person does an act with total
disregard to the consequences which may ensue from such
carelessness.

Shankar Narayan Bhadolkar v. State of Maharashtra AIR 2004

SC 1966, this case elucidates the principle that when an act is
done deliberately and without proper care and caution, it will not
be given the benefit of accident. A host who unlocks his pistol,
loads it with cartridges and ends up shooting one of the invitees
to a dinner from a close range is certainly an act where proper
care and caution was thrown out of the window.
This instance also highlights the problem of "celebratory firing" in
marriages, in these cases too, a person will not be given the
benefit of accident as firing bullets while attendees are present is
certainly not an act done with proper care and caution as there is
always the risk of bullet hitting one of the attendees.

Relevant cases
Tunda v. Rex 1950 Cr. Lj. 402 (All. HC)
The accused and the deceased were friends who were wrestling
fans and were engaged in a wrestling bout. While wrestling, the
deceased’s head accidentally came in contact with a concrete
platform resulting in injuries to the skull and eventual death. The
accused was tried under section 304 but later on convicted under
section 304A. He preferred an appeal to the Allahabad High
Court, which held that when the accused and deceased agree to
wrestle with each other, there was an implied consent on each
part to suffer any accidental injuries. The injury was accidental
and there was no foul play on part of the accused and hence is to
be given the benefit under section 80 and section 87.

Bhupendra Sinha Chaudasama v. State of Gujarat 1998 Cri.LJ 57

Where the accused shoots his own colleague at a close range
without knowing the identity of the target, this act reflects utter
lack of care and caution and hence, the benefit under section 80
will not be available to him.
This exception excludes a person from criminal liability where
such acts occur as a result of an accident. This
means that although the person performed the act, such act was
devoid of an intention.

Essential Elements-
For the defense to be established, he must satisfy the following:
 The act must be an accident or misfortune
 The act was done without criminal intention or knowledge
 It must be in the performance of a lawful act
 It must be exercised in a lawful manner and by lawful means
 Such an act must have been done with care and caution

In the State Government v. Rangaswami 1952 CriLJ 1191, A

reported to his friends that there was a Tiger or
Hyena which was in the vicinity. D gave his loaded gun to A who
went towards the “animal” from one direction
while B and C were moving towards the animal from the opposite
direction, A then fired the “animal” which kills E.
The court held that it was an accident and the fact that the gun
was unlicensed would not deprive him of the
benefit of the immunity.

Doctrine Of Necessity (section 81)

The Black’s Law Dictionary defines the word ‘necessity’ as

‘Controlling force; irresistible compulsion; a power or
impulse so great that it admits no choice of conduct.’
When a defendant, in order to prevent a greater harm from taking
place, commits a crime or a criminal act during an emergency
situation like such, the defence of necessity is applied, wherein the
defendant is excused or not held liable for the crime committed by
him because his act was justified as he or she had the intention to
prevent a situation which would cause a greater harm as compared
to the criminal act committed by him or her. Thus, criminal
defendants who have intentionally violated the law, may claim that
they have not committed a criminal act due to the abovementioned
reason.
Chapter IV of the Indian Penal Code (hereinafter referred to as
the ‘IPC’) provides the General Exceptions in which Section 81
states that –
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.
Explanation.—It is 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 person who has been accused of committing a criminal act,
should have done that act in good faith in order to prevent a
greater harm, without having the intention of causing harm and
merely with the knowledge that his act is likely to ensue and he
will not be held responsible for the result of his act. But, where the
positive evidence against the accused is clear , cogent and reliable,
the question of motive is of no importance.[1]
In the prevention of harm, the accused is faced with two choices
both resulting in some harm and of sheer necessity to avoid a
greater harm he has to commit an act which would otherwise be an
offence. The test really is like this: there must be a situation in
which the accused is confronted with a grave danger and he has
no choice but to commit the lesser harm, may be even to an
innocent person, in order to avoid the greater harm. Here the
choice is between two evils and the accused rightly chooses the
lesser one.[2] Thus, where a Chief Constable not in his uniform
came to a fire and wished to force his way past the military
sentries placed around it, was kicked be a sentry, it was held that
as the sentry did not know who he was, the kick was justifiable for
the purpose of preventing much greater harm under this sections
and as a means of acting up to the military order.[3] Similarly,
where a village magistrate arrested a drunken person whose
conduct was at the time a grave danger to the public, it was held
that he was not guilty of an offence by reason of the provisions of
this section or section 96 or 105.[4]
Leading Case Laws
Regina v. Dudley and Stephens[5]
In this case the defendants, that is, Thomas Dudley and Edwin
Stephens and a cabin boy named Richard Parker were cast adrift in
a boat following a shipwreck without food and water. On the
18th day, when they had been seven days without food and five
days without water, Dudley proposed to Stephen that lots should
be cast who should be put to death to save the rest, and that they
afterwards thought it would be better to kill Parker so that their
lives could be saved. So, on
the 20th day, Dudley with the assent of Stephens, killed Parker
and both of them fed on his flesh for four days., after which, a
vessel rescued them and they were charged with murder.
death, but it was later commuted
It was held that killing an innocent life to save one’s own does not
justify murder even if it is committed under extreme necessity of
hunger. So, the defendants were sentenced to six months
imprisonment. And in R v Howe[6], the House of Lords affirmed
the case of Dudley and Stephens.
United States v. Holmes[7]
In 1842, a longboat containing passengers and members of the
crew of a sunken American vessel was cast adrift in the stormy sea.
To prevent the boat from being swamped, members of the crew
threw some of the passengers overboard. In the trial of one of the
crew members, the court recognized that such circumstances of
necessity may constitute a defence to a charge of criminal
homicide, provided that those sacrificed be fairly selected, as by
lot. Because this had not been done, a conviction for manslaughter
was returned.
R v Bourne[8]
In this case, a young girl was pregnant because she was raped and
the defendant, who was a gynaecologist, had performed an
abortion, with the consent of her parents because he was of the
 opinion that the rape victim could die if permitted to give birth.
The defendant was found not guilty of unlawfully procuring a
miscarriage” following a direction from the trial judge to the jury
that the defendant did not act “unlawfully”, rather he acted in good
faith while exercising his clinical judgement.
Conclusion
Thus, the defendant under no circumstances should intentionally
cause harm and harm should be caused only during grave necessity
in order to prevent a greater harm which might have been caused
in case the minor harm had not been committed by the defendant.
Gurucharan Singh v. State of Punjab, AIR 1956 SC 460 : 1956
CrLJ 827.

[1] Southwark London Borough Council v. Williams, (1971) Ch

734, (1971) 2 All ER 175.
[2] Mayer Hans George, (1964) 67
Bom LR 583, AIR 1965 SC 722.

[3] Gopal Naidu, (1922) 46 Mad 605 (FB).

[5](1884) 14 QBD 273.

[6][1987] AC 417.

Infancy-

Offence by minor (s.82-83)

Section 82 and section 83 of the Indian Penal Code confer
immunity from criminal liability to children up to 12 years.
Children below 7 years get a complete defense from criminal
liability whereas, for children from 7 to 12 years, the immunity
conferred depends on their maturity of understanding during the
commission of the crime.
Section 82: Act of a child under seven years of age.—Nothing is an
offence which is done by a child under seven years of age
Section 83: Act of a child above seven and under twelve of
immature understanding.—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 of the
nature and consequences of his conduct on that occasion.
The ingredients of section 82
Act of a child under 7 years of age
According to section 82 of the IPC a child below 7 years of age gets
a complete defense from any kind of criminal liability. The reason
for this is the principle of ‘doli incapax’, a child below the age of 7
cannot be held guilty for any offence because of the assumption
that he cannot draw a distinction between ‘right’ and ‘wrong’. It
works under the assumption that a child below 7 lacks the ability
to understand the nature and consequences of his act and
therefore cannot form the required mens rea. This is a complete
defense and cannot be taken away in any circumstances. No sort
of evidence to prove that the child could understand the nature or
consequences of his act will act as a rebuttal.
The ingredients of section 83 are
A child above 7 years of age but below 12
There is a partial defense from criminal liability conferred on
children above the age of 7 but below the age of 12. This is based
on the principle of “doli capax”; that is; a child between 7 to 12
years is capable of understanding the nature and consequences of
his act. However, in order to hold a child liable, the prosecution
needs to prove, beyond any reasonable doubt that the element of
‘mens rea’ was present along with the actus reus. In other words,
the prosecution needs to establish the fact that the child in
question knew that his act was wrong and would have the
consequences. The liability depends on his understanding and not
the age.
Maturity of understanding
When a child is above 7 and below 12, the liability is totally
dependent on the maturity of the child. It does not depend on age,
but rather the mental capacity. For example; a child 11 years of age
with no understanding of the nature of his act can be absolved
from the liability but a child of 8 years who has enough maturity
and understanding to of the consequences, can be held liable. The
 maturity or understanding of the child can be inferred from the
circumstances involving the crime and is different in different
cases. However, a few generalized factors that can demonstrate the
child’s guilt are:
 The immediate actions of the child after the commission of the act.
 The conduct of the child during the investigation process.
 The nature of the act done by the child
 Other similar factors.
Therefore, to summarize:
In case the child is below 7 years of age, he will get a complete
defense
 In case the child is above 7 but below 12, it has to be proved that
he has not attained enough maturity to understand the nature or
consequences of his act.
 In cases the child is above 12, he will be governed by the Juvenile
Justice (Care and Protection Act, 2000) and no defense on the
pretext of age will be entertained.
Comparative Analysis
Position In Canada
The Criminal Code of Canada, section 13, establishes the
minimum age of criminal liability to be 12. The YCJA (Youth
Criminal Justice Act) governs the application of criminal and law
to those children who are 12 years old or older, but younger than
18 at the time of committing the offence. In certain circumstances,
Youth aged 14 to 17 may be tried and/or sentenced as adults as
described in the act. In certain special circumstances the youth
might receive an adult sentence.[1]
Position In England and Wales
The minimum age of criminal responsibility in England and Wales
is ten years old. Those below this age are considered doli incapax
i.e. incapable of forming criminal intent.
A number of Acts, dating back to 1933, (Children and Young
Persons Act 1933 (as amended by sec 16(1) Children and Young
Persons Act 1963) provide for the system of juvenile justice in
England and Wales. The juvenile justice system then functions in
the form of a Youth Court, which hears cases of ten to eighteen-
year-olds.[2]
Position in Ireland (Republic of Ireland)
In Ireland, the minimum age of criminal responsibility is 7. Such
crimes are governed by the Children Act 2001. There is a
presumption of doli incapax for the children aged 7 to 14. This can,
however, be rebutted by proving beyond reasonable doubt that the
child was capable of understanding the nature of his/her act.
The minimum age of criminal responsibility in Northern Ireland is
10 years old[3]
Position in Sri Lanka
Minimum age of criminal responsibility in Sri Lanka was set at eight
years. However, it has been increased to 12. The judge has
discretionary powers to hold a child aged 12 to 14 years, criminally
accountable. Children above 12 years of age can be held
accountable irrespective of their ability to understand the
seriousness of the crime. Children between 16 and 18 can be
treated as adults by the criminal justice system.[4]
Illustrations
Krishna Bhagwan v. State of Bihar[5]
In case of Krishna Bhagwan v. State of Bihar, Patna High Court
upheld that if the accused of an offence during the trial, has
attained the age of 7 years or at the time of decision the child has
attained the age of 7 years can be convicted if he is able to
understand the nature of the offence.
Marsh v. Loader[6]
A child was caught stealing a piece of wood from the premises of
the defendant but was discharged on the basis that he was under
7 years of age.
Partap Singh v. State of Jharkhand[7]
In this case, the question of the date which was to be reckoned in
determining the age of the child was brought to the court. The
court held that the date of the commission of an offence was the
relevant date to determine the age of the alleged offender and not
the date on which the accused is brought before the court.
Hirelal Mallick v. State of Bihar[8]
In this case, a 12-year-old boy along with two other people was
convicted of murdering a person. The High court convicted the
child under section 326 of IPC based on the circumstances
revolving around the crime. The 12-year-old had struck the neck of
the deceased with a sword and ran away after the act. There was
no evidence to suggest that he did not have the maturity or
understanding of the consequences of his act. And therefore, the
conviction under s326 of IPC was upheld.
What is the minimum age of Criminal responsibility in India?
According to IPC, the age of criminal responsibility is at 12 years.
An offence committed by a child under the age of 7 years is not
punishable under IPC.[9] Also, an offence committed by a child
above the age of 7 years but below the age of 12 years shall not be
punishable if it seems that he does not possess sufficient maturity
to understand the consequence of his actions.[10]
Why are children below the age of 7 absolved from criminal
responsibility?
The children below the age of 7 are absolved from criminal
responsibility because of the principle of doli incpax. Doli Incapax
is a Latin term that means “incapable of doing harm”. This term
has been used to describe a presumption of innocence for children
in Criminal law in most countries.
The basis of this presumption lies in the theory of Criminal
Responsibility. The theory has been built upon the theory that a
person should be held criminally responsible only for acts he
intends to commit.[11]

Insanity-(Section 84)

This exception excludes a person from criminal liability as a

result of unsoundness of mind if, at the time of the commission
of the offense, the person was incapable of knowing the nature of
his acts and that that his actions were wrong or contrary to law.
In Madhukar G. Nigade v State of Maharashtra 2006 CriLJ 1305,
the court held that the benefit of Section 84 is that at the time
when the offense was committed, the accused was unsound mind
and unable to understand the consequences of his actions.

The locus classicus is the McNaughton case 1843 where the

accused killed the secretary of the British Prime
Minister in the belief that the Prime Minister was conspiring
against him. He was acquitted of the charge by
reason of insanity. This rule created a presumption of sanity
unless rebutted by the defense.

Intoxication-(Sections 85 and 86)

The provision for intoxication is stipulated under Sections 85

and 86 of the IPC. The difference between these sections is that
in the former, a person is intoxicated involuntarily while in the
latter, a person is intoxicated voluntarily.

Thus, by virtue of Section 85, the person is not criminally liable.

However, under Section 86, the defense of intoxication does not
avail the person.

Essential Elements-
For the defense to be established under Section 85, the accused
must satisfy the following:

 He was incapable of knowing the nature of his act

 He was incapable of knowing that his acts were wrong or
contrary to law
 His acts were as a result of intoxication
 The thing intoxicated was administered against his will

In Jethu ram v. State of MP 1960 CriLj 1093, the accused was

persuaded by his father to drink alcohol. The
defense of intoxication did not avail him because he had
knowledge of the drink which was administered to him.
The same decision was reached in Arun Jaysingh Khandagale v
State of Maharashtra 1999.

Consent- (Sections 87- 91)

It is provided under Section 87 – 91 of the IPC. It means to agree
to perform a thing. It means that the victim
gave consent for the harm to occur (Section 87) or the act was
done for the benefit of the victim (Section 88) or
a guardian consented to take the risk for the benefit of a child
(Section 89).

It occurs in non-fatal offenses where a criminal act may have been

committed. The defense of consent is available where the victim
consents to the activity occurring.
Consent comprises consciousness, deliberation and knowledge
of the risk intended.
This means a person who gives consent does so consciously,
deliberately and with full knowledge of the risk.

Consent is not valid where:

 It is given under fear or injury or misconception of fact

 The person involved is aware or has reason to believe that the
consent is given under fear, injury or misconception
 It is given by an intoxicated person
 It is given by a person of unsound mind
 It is given by a person under 12 years without maturity of
understanding of the consequences

Essential Elements
For the defense to be established under Section 87, the accused
must satisfy the following:

 That the person consented to the risk

 Such consent must be made expressly or impliedly
 The consent was not intended to cause death or grievous
harm
 The person giving the consent is above eighteen years old

An example is illustrated where A and B agree to wrestle each

other. Such an agreement is consent for either of
them to suffer any harm which occurs without liability. Thus,
where B suffers an injury, A is not liable For the defense to be
established under Section 88, the accused must satisfy the
following:

 That the person consented to the risk

 Such consent must be made expressly or impliedly
 The consent was not intended to cause death or grievous
harm
 It was exercised in good faith
 The act was done for the benefit of the victim

An example of this occurs in the hospital where a doctor is to

perform a surgery with A’s consent and the surgery was done in
good faith and A dies. The defense of consent would avail the
doctor.

For the defense to be established under Section 89, the accused

must satisfy the following:

 That the guardian consented to the risk

 Such consent was made expressly or impliedly
 The consent was not intended to cause death or grievous
harm
 It was exercised in good faith
 The act was done for the benefit of the child or an insane
person

Communication- Section 93,

A person who disseminates information which causes harm to

another in good faith for the benefit of such
person is excluded from liability.
For the defense to be established under Section 93, the accused
must satisfy the following:

 That the communication was made in good faith

 Such communication would benefit the person to whom it is
made

Duress- Section 94,

Where a person is compelled by threats to perform an act which
constitutes an offense, the defense of Duress would avail him.

For example, a security man compelled to open the door of a

bank for armed robbers to enter and steal would be availed of
this defense. This is subject to murder and offenses punishable
by death.

For the defense to be established under Section 94, the accused

must satisfy the following:

 There was a compulsion to do an illegal act

 Such compulsion was made by threats of instant death
 It caused reasonable apprehension
 It excludes murder and offenses punishable by death

Trifles- Section 95

This is provided in the Latin maxim, “De minimis non curat lex”
which means, the law does not concern itself with trifles.

For the defense to be established under Section 95, the accused

must satisfy the following: That

 The harm is slight

 No person of ordinary sense and temper would complain of
such harm

In Krishnaal v State, 1998 CriLj 990, the court held that there
was nothing that suggested that A provoked the accused which
could justify him in exercising Section 96 of the IPC.

Right of Private Defence

Sections 96 to 106 of the Indian Penal Code state the law relating
to the right of private defence of person and property. The
provisions contained in these sections give authority to a man to
use necessary force against an assailant or wrong-doer for the
purpose of protecting one’s own body and property as also
another’s body and property when immediate aid from the state
machinery is not readily available; and in so doing he is not
answerable in law for his deeds.

Self-help is the first rule of criminal law. The right of private

defence is absolutely necessary for the protection of one’s life,
liberty and property. It is a right inherent in a man. But the kind
and amount of force is minutely regulated by law. The use of force
to protect one’s property and person is called the right of private
defence[i].

As a general idea, the right of private defence permits individuals

to use defensive force which otherwise be illegal, to fend off
attacks threatening certain important interests. Like the defence of
necessity, the right of private defence authorizes individuals to
take the law into their own hands[ii].

The right, in some circumstances even extends to causing death of

the person who poses such a threat.

But such a right is subject to some restrictions and not available in

all circumstances.

1. It is only allowed when the danger to life or property is

immediate and the accused is not the aggressor.
2. The right of private defence is not available against public
servants acting in exercise of their lawful powers.
3. A person is allowed to use only reasonable force; a force
that is proportionate to the impending danger.
Private Defence: Meaning And Types

The expression ‘private defence’ that has been used in the Indian
Penal Code, 1860, has not been defined therein. Thus, it has been
the prerogative of the judiciary to evolve a workable framework for
the exercise of the right. Thus in India, the right of private defence
is the right to defend the person or property of himself or of any
other person against an act of another, which if the private
defence is not pleaded would have amounted to a crime.
This right therefore creates an exception to criminal liability. Some
of the aspects of the right of private defence under the IPC are that

1. no right of self-defence can exist against an unarmed and

unoffending individual,
2. the right is available against the aggressor only and
3. it is only the person who is in imminent danger of person or
property and
4. only when no state help is available.
5. The right of private defence is a natural right which is evinced
from particular circumstances rather than being in the
nature of a privilege[iii].

However, the most important principle is that the right of private

defence requires that

1. the force used in the defence should be necessary and

reasonable in the circumstances.

But, in the moments of disturbed mental condition, this

cannot be measured in golden scales. Whether the case of
necessity exists must be determined from the viewpoint of
the accused and his act must be viewed in the light of the
circumstances as they appear on such occasion. Specific
limitations have also been provided for when the right cannot
be validly exercised and also the provision specifies clearly
the cases in which the right can extend to the causing of death
of the aggressor.

The reasonable apprehension can only be justified if the accused

had an honest belief that there is danger and that such belief is
reasonably warranted by the conduct of the aggressor and the
surrounding circumstances. This brings in an iota of an objective
criterion for establishing ‘reasonableness.’

The imminence of danger is also an important prerequisite for the

valid exercise self-defence[iv]. Thus, there should be a reasonable
belief that the danger is imminent and that force must be used to
repel it.
Nature Of The Right

 It is the first duty of man to help himself.

 The right of self-defence must be fostered in the citizens of

every free country. The right is recognized in every system of
law and its extent varies in inverse ratio to the capacity of the
state to protect life and property of the citizens.

 One thing should be clear that there is no right of private

defence when there is time to have recourse to the protection
of police authorities.

 The right is not dependent on the actual criminality of the

person resisted. It depends solely on the wrongful or
apparently wrongful character of the act attempted and if the
apprehension is real and reasonable, it makes no difference
that it is mistaken.

 An act done in exercise of this right is not an offence and does

not, therefore, give rise to any right of private defence in
return[v].
Private Defence In The Indian Legal System

Jeremy Bentham, an English Legal Luminary, once opined, “This

right of defense is absolutely necessary. The vigilance of the
Magistrates can never make up for vigilance of each individual on
his own behalf. The fear of the law can never restrain bad men so
effectually as the fear of the sum total to individual resistance[vi].
Take away this right and you become, in so doing, the accomplice
of all bad men.” This right is based on two principles,

 It is available against the aggressor only, and

 The right is available only when the defender entertains
reasonable apprehension.

There are three tests for ascertaining reasonable apprehension;

1. objective Test: While objective test emphasizes as to how in

a similar circumstance an ordinary, reasonable, standard and
average person will respond,
2. subjective Test: the subjective test examines the mental state
based on individual attitude.
3. expanded objective test: expanded objective test, being a
combination of aforesaid two tests, bases its inquiry to
determine whether or not the individual acted as a reasonable
person.3.

Section 96 talks about things done in private defence – Nothing

is an offence, which is done in the exercise of the right of
private defence.

Right of private defence cannot be said to be an offence in return.

The right of self-defence under Section 96 is not absolute but is
clearly qualified by Section 99 which says that the right in no case
extends to the inflicting of more harm than it is necessary for
the purpose of defence. It is well settled that in a free fight, no
right of private defence is available to either party and each
individual is responsible for his own acts. The right of private
defence will completely absolve a person from all guilt even when
he causes the death of another person in the following situations,
i.e

 If the deceased was the actual assailant, and

 If the offence committed by the deceased, which occasioned
the cause of the exercise of the right of private defence of
body and property falls within anyone of the six or four
categories enumerated in Sections 100 and 103 of the penal
code.

Section 97 talks about Right of private defence of the body and of

Property: – Every person has a right, subject to the restrictions
contained in Section 99, to defend-

First-His own body, and the body of any other person, against
any offence affecting the human body;

Secondly-The property, whether movable or immovable, of

himself or of any other person, against any act which is an
offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft,
robbery, mischief for criminal trespass.
This Section limits exercise of the right of private defence to the
extent of

 absolute necessity. It must not be more than what is

necessary for defending aggression.

 Reasonable apprehension of danger that comes from the

aggressor.

This Section divides the right of private defence into two parts, i.e.
the first part deals with the right of private defence of person, and
the second part with the right of private defence of property[vii].

SECTION 98: Right to private defence is also available against the

person who is not aware of the offence he is committing and is
under misconception at the time of committing offence.
Right of private defence against the act of a person of unsound
mind, etc.—When an act, which would otherwise be a certain
offence, is not that offence, by reason of the youth, the want of
maturity of understanding, the unsoundness of mind or the
intoxication of the person doing that act, or by reason of any
misconception on the part of that person, every person has the
same right of private defence against that act which he would
have if the act were that offence.

Illustrations
(a) Z, under the influence of madness, attempts to kill A; Z is
guilty of no offence. But A has the same right of private defence
which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter
Z, in good faith, taking A for a house-breaker, attacks A. Here Z,
by attacking A under this misconception, commits no offence. But
A has the same right of private defence against Z, which he would
have if Z were not acting under that misconception.

Section 99 lays down the acts against which there is no right of

private defence: – There is no right of private defence against an
act which does not reasonably cause the apprehension of death
or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under color of his office, though that
act, may not be strictly justifiable by law.

Section 99 lays down the conditions and limits within which the
right of private defence can be exercised. The first two clauses
provide that the right of private defence cannot be invoked against
a public servant or a person acting in good faith in the exercise of
his legal duty provided that the act is not illegal[viii]. Similarly,
clause three restricts the right of private defence if there is time to
seek help of public authorities. And the right must be exercised in
proportion to harm to be inflicted. In other words, there is no right
of private defence:

 Against the acts of a public servant; and

 Against the acts of those acting under their authority or
direction;
 When there is sufficient time for recourse to public
authorities; and
 The quantum of harm that may be caused shall in no case be
in excess of harm that may be necessary for the purpose of
defence.

Section100 : specifies when the right of private defence of the body

extends to causing death: –

The right of private defence of the body extends, under the

restrictions mentioned in the last preceding section, to the
voluntary causing of death or of any other harm to the assailant, if
the offence which occasions the exercise of the right be of any of
the descriptions hereinafter enumerated, namely: —

First-Such an assault as may reasonably cause the apprehension

that death will otherwise be the consequence of such assault;

Secondly-Such an assault as may reasonably cause the

apprehension that grievous hurt will otherwise be the
consequence of such assault;

Thirdly- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural

lust;
Fifthly- An assault with the intention of kidnapping or
abducting;

Sixthly- An assault with the intention of wrongfully confining a

person, under circumstances that may reasonably cause him to
apprehend that he will be unable to have recourse to the public
authorities for his release.

Seventhly – an act of throwing acid or attempting to throw acid.

Essential conditions to invoke section 100

To invoke the provisions of Section 100 of I.P.C., four conditions

must exist:-

 The person exercising the right of private defense must be

free from fault in bringing about the encounter,
 There must be an impending peril to life or of great bodily
harm,
 There must be no safe or reasonable mode of escape by
retreat,
 There must have been a necessity for taking life.

Section101 : prescribes when such right extends to causing any

harm other than death:-

If the offence be not of any of the descriptions enumerated in

the last preceding section, the right of private defence of the
body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions mentioned in
Section 99, to the voluntary causing to the assailant of any harm
other than death[ix].

Section102 is very important as it deals with the commencement

and continuance of the right of private defence of the body:

The right of private defence of the body commences as soon as a

reasonable apprehension of danger to the body arises from an
attempt or threat to commit the offence though the offence may
not have been committed; and it continues as long as such
apprehension of danger to the body continues. The apprehension
of danger must be reasonable, not fanciful. For example, one
cannot shoot one’s enemy from a long distance, even if he is armed
with a dangerous weapon and means to kill. This is because he has
not attacked you and therefore there is no reasonable
apprehension of attack. In other words, there is no attack and
hence no right of private defence arises. Moreover the danger must
be present and imminent[x].

Section103 specifies when the right of private defence of

property extends to causing death: –

The right of private defence of property extends, under the

restrictions mentioned in Section 99, to the voluntary causing of
death or of any other harm to the wrong-doer, if the offence, the
committing of which, or the attempting to commit which,
occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated, namely: Robbery, House-
breaking by night, Mischief by fire committed on any building, tent
or vessel, which building, tent of vessel is used as a human
dwelling, or as a place for the custody of property, Theft, mischief,
or house-trespass, under such circumstances as may reasonably
cause apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not exercised.

Section 103 provides the right of private defence to the property

whereas Section 100 is meant for exercising the right of private
defence to the body of a person. It justifies homicide in case of
robbery, house breaking by night, arson and the theft, mischief or
house trespass which cause apprehension or grievous harm. If a
person does not have possession over the property, he cannot
claim any right of private defence regarding such property[xi].
Right to dispossess or throw out a trespasser is not available to the
true owner if the trespasser has been successful in accomplishing
his possession to his knowledge. This right can be only exercised
against certain criminal acts that are mentioned under this section.

Section104 tells us when such right extends to causing any harm

other than death:-

If the offence, the committing of which, or the attempting to

commit which, occasions the exercise of the right of private
defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right
does not extend to the voluntary causing of death, but does extend,
subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrongdoer of any harm other than death.
This Section cannot be said to be giving a concession to the accused
to exceed their right of private defence in any way[xii]. If anyone
exceeds the right of private defence and causes death of the
trespasser, he would be guilty under Section 304, Part II. This
Section is corollary to Section 103 as Section 101 is a corollary
to Section 100.

Section105 prescribes the commencement and continuance of

the right of private defence of property: –

The Right of private defence of property commences when a

reasonable apprehension of danger to the property commences.
The right of private defence of property against theft continues till
the offender has affected his retreat with the property or either the
assistance of the public authorities is obtained, or the property has
been recovered[xiii]. The right of private defence of property
against robbery continues as long as the offender causes or
attempts to cause to any person death or hurt or wrongful restraint
of as long as the fear of instant death or of instant hurt or of
instant personal restraint continues

 The right of private defence of property against criminal

trespass or mischief continues as long as the offender
continues in the commission of criminal trespass or mischief.

 The right of private defence of property against house-

breaking by night continues as long as the house-trespass
which has been begun by such house-breaking continues.

Section106 talks about right of private defence against deadly

assault when there is risk of harm to innocent person: –

If in the exercise of the right of private defence against an assault,

which reasonably causes the apprehension of death, the defender
be so situated that he cannot effectually exercise that right without
risk of harm to an innocent person his right or private defence
extends to the running of that risk.
Evolution of the Right of Private Defence

Self-defence was placed in the category of justifiable homicide. In

self-defence violence was lawful: ‘Vim enim vi defendere omnes
leges emniaque jure permittunt’ (A man, therefore, incurs no
liability, if he kills another’s slave who attacks him.)[xiv].

Darshan Singh v. State of Punjab[xxi]

The Supreme Court laid down Guidelines for Right Of Private

Defence for Citizens. It observed that a person cannot be expected
to act in a cowardly manner when confronted with an imminent
threat to life and has got every right to kill the aggressor in self
defense. A bench comprising Justices Dalveer Bhandari and Asok
Kumar Ganguly, while acquitting a person of murder, said that
when enacting Section 96 to 106 of the IPC, the Legislature clearly
intended to arouse and encourage the spirit of self-defense
amongst the citizens, when faced with grave danger.

“The law does not require a law-abiding citizen to behave like a

coward when confronted with an imminent unlawful aggression.
As repeatedly observed by this court, there is nothing more
degrading to the human spirit than to run away in face of danger.
Right of private defense is thus designed to serve a social purpose
and deserves to be fostered within the prescribed limit[xxii].”

The court laid down ten guidelines where right of self-defence is

available to a citizen, but also warned that in the disguise of self-
defence, one cannot be allowed to endanger or threaten the lives
and properties of others or for the purpose of taking personal
revenge. The apex court concluded by saying that a person who is
under imminent threat is not expected to use force exactly
required to repel the attack and his behaviour cannot be weighed
on “golden scales.”

The Court declared their legal position under the following 10

guidelines[xxiii]:
 1. Self-preservation is a basic human instinct and is duly
recognized by the criminal jurisprudence of all civilized
countries. All free, democratic and civilized countries
recognize the right of private defense within certain
reasonable limits.
2. The right of private defense is available only to one who is
suddenly confronted with the necessity of averting an
impending danger and not of self-creation.
3. A mere reasonable apprehension is enough to put the right of
self-defense into operation. In other words, it is not necessary
that there should be an actual commission of the offence in
order to give rise to the right of private defense. It is enough
if the accused apprehended that such an offence is
contemplated and it is likely to be committed if the right of
private defense is not exercised.
4. The right of private defense commences as soon as a
reasonable apprehension arises and it is co-terminus with the
duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate
his defense step by step with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to
be wholly disproportionate or much greater than necessary
for protection of the person or property.
7. It is well settled that even if the accused does not plead self-
defense, it is open to consider such a plea if the same arises
from the material on record.
8. The accused need not prove the existence of the right of
private defense beyond reasonable doubt.
9. The Indian Penal Code confers the right of private defense
only when the unlawful or wrongful act is an offence.
10. A person who is in imminent and reasonable danger of
losing his life or limb may, in exercise of self defense, inflict
any harm (even extending to death) on his assailant either
when the assault is attempted or directly threatened.

Yogendra Moraji v. State[xxiv]

The Supreme Court discussed in detail the extent and the

limitations of the right of private defence of body. One of the
aspects emphasized by the court was that there must be no safe or
reasonable mode of escape by retreat for the person confronted
with an impending peril to life or of grave bodily harm except by
inflicting death on the assailant. This aspect has create quite a
confusion as it indirectly suggests that once should first try to see
the possibility of a retreat than to defend by using force, which is
contrary to the principle that the law does not encourage cowardice
on the part of one who is attacked. But another viewpoint is that
this retreat theory in fact is an acceptance of the English common
law principle of defence of body or property under which the
common law courts always insisted to look first as to whether the
accused could prevent the commission of crime against him by
retreating.
Nand Kishore Lal v. Emperor[xxv]

Accused who were Sikhs, abducted a Muslim married woman and

converted her to Sikhism. Nearly a year after the abduction, the
relatives of the woman’s husband came and demanded that she
return. The accused refused to comply and the woman herself
expressly stated her unwillingness to rejoin her Muslim husband.
Thereupon the husband’s relatives attempted to take her away by
force. The accused resisted the attempt and in so doing one of
them inflicted a blow on the head of the woman’s assailants, which
resulted in the latter’s death. It was held that the right of the
accused to defend the woman against her assailants extended
under this section to the causing of death and they had, therefore,
committed no offence.
Mohinder Pal Jolly v. State of Punjab[xxvi]

Workers of a factory threw brickbats from outside the gates, and

the factory owner by a shot from his revolver caused the death of
a worker, it was held that this section did not protect him, as there
was no apprehension of death or grievous hurt.
Mithu Pandey v. State[xxvii]

Two persons armed with ‘tangi’ and ‘danta’ respectively were

supervising collection of fruit by labourers from the trees that were
in the possession of the accused persons who protested against
the act. In the altercation that followed one of the accused suffered
multiple injuries because of the assault. The accused used force
resulting in death. The Patna High Court held that the accused were
entitled to the right of private defence even to the extent of causing
death.
Jassa Singh v. State of Haryana[xxviii]

The Supreme Court held that the right of private defence of

property would not extend to the causing of the death of the
person who committed such acts if the act of trespass is in respect
of an open land. Only a house trespass committed under such
circumstances as may reasonably caused death or grievous hurt is
enumerated as one of the offences under Section 103.
Conclusion

In general, private defence is an excuse for any crime against the

person or property. It also applies to the defence of a stranger, and
may be used not only against culpable but against innocent
aggressors.

The defence is allowed only when it is immediately necessary-

against threatened violence. A person who acts under a mistaken
belief in the need for defence is protected, except that the mistake
must be reasonable. In principle, it should be enough that the force
used was in fact necessary for defence, even though the actor did
not know this; but the law is not clear. There is no duty to retreat,
as such, but even a defender must wherever possible make plain
his desire to withdraw from the combat. The right of private
defence is not lost by reason of the defender’s having refused to
comply with unlawful commands.

The force used in defence must be not only necessary for the
purpose of avoiding the attack but also reasonable, i.e.
proportionate to the harm threatened; the rule is best stated in the
negative form that the force must not be such that a reasonable
man would have regarded it as being out of all proportion to the
danger[xxix].

The carrying of firearms and other offensive weapons is generally

forbidden, but (1) a thing is not an “offensive weapon” if it is not
offensive per se and is carried only to frighten; (2) a person does
not “have it with him” if he merely snatches it up in the emergency
of defence.

The right of defence avails against the police if they act illegally,
but the defender cannot take benefit from a mistake as to the law
of arrest or self-defence[xxx]. The traditional rule is that even death
may be inflicted in defence of the possession of a dwelling.

The occupier of premises may use necessary and reasonable force

to defend them against a trespasser, or one reasonably thought to
be a trespasser; and it seems that even a licensee (such as a lodger)
can eject trespassing strangers. It is a statutory offence to set
spring guns or mantraps, except in a dwelling house between
sunset and sunrise. It has not been decided whether the exception
operates to confer an exemption from the ordinary law of offences
against the person. Such defences as spikes and dogs are lawful if
reasonable[xxxi]. Guard dogs must, by statute, be kept under full
control, except in private houses or on agricultural land.

Thus, we can see the right of private defence is very helpful in

giving citizens a weapon which in a case that it’s not misused is
subject to certain restrictions, helps them protect their and others’
lives and property.