FACTORS NEGATIVATING GUILTY INTENTION[1]

(..6..)

GENERAL EXCEPTIONS (DEFENCES)[2]

Table of Contents

(Ss. 76 to 106)

QUESTION BANK

Q.1. Discuss the various defenses available to an accused person under the provisions of I.P.C.

Q.2. What are the general exceptions provided under I.P.C.

SYNOPSIS

I] Introduction

II] Classification of offences under IPC

A) Excusable Acts
B) Justifiable Acts

III] Burden of Proof

I] INTRODUCTION:-

Every person who violates the criminal law is subject to punishment. However, this rule has some exceptions. For example, a man may be excused from punishment, either on the grounds of absence of the requisite mens rea or on some other grounds recognised by the law. Such provisions of exception are dealt with in Chapter IV of the Indian Penal Code, from Ss.76 to 106.

These provisions are ‘general’ in that they apply to every definition, penal provision and illustration throughout this code (S.6)[3]. Therefore, all the general exceptions are put in a single chapter instead of repeating them in connection with each offence. These general exceptions do not apply only to the offences under I.P.C. but also to the offences under the Special or Local laws, e.g. Food Adulteration Act, Anti-Corruption Act, etc.

II] CLASSIFICATION OF OFFENCES UNDER I.P.C.:-

These provisions relating to ‘general exceptions’ may be classified into two classes of exceptions, viz (namely) excusable and justifiable exceptions. Inexcusable exceptions[4] (or defences) there is a lack of mens rea on the part of the person committing the offence, e.g. mistake of fact, accident, insanity, etc. When any act falls under excusable exceptions, it is no offence at all. Whereas in ‘justifiable[5]’ exceptions, the law provides justifications for the acts committed in particular circumstances, e.g. judicial act, necessity, consent, etc. These acts are otherwise offences if not justified by law.

Thus, if taking the goods of others with the consent of that person is no offence, taking them without consent is an offence.

Thus, general exceptions can be classified as follows: –

A) Excusable Acts: –

1) Mistake of Fact[6] (Ss. 76 and 79).

2) Incapacity to do an act.

a) Infant[7]/Infantacy (Ss.82,83)
b) Insanity[8] (S.84).
c) Intoxication[9] (Ss. 85, 86).

B) Justifiable Acts: –

1) Judicial act[10].

a) Act of Judge (S.77).
b) Act done in pursuance of an order of a court[11] (Sec.78)

2) Necessity[12]. (S.81).

3) Duress[13] (S. 94).

4) Consent[14]: –

a) With consent (Ss. 87 – 89).
b) Without consent (S. 92).

5) Communication made in good faith[15](S.93)

6) Act causing slight harm (S. 95).

7) Right of private defence[16] (Ss. 96 to 106).

III] BURDEN OF PROOF[17]:-

The burden of proof means the obligation to prove the truth or falsehood of a fact or proposition. In criminal matters, the prosecution (State) has to prove the existence of all facts necessary to constitute the offence charged beyond all reasonable doubt. If there is reasonable doubt regarding the guilt of the person charged with a crime (i.e. accused), the benefit of it is to be given to the accused. In criminal cases, the burden of proof rests upon the prosecution to prove actus reus and mens rea.

However, the burden of proving the exemptions (above mentioned) is on the person (i.e. accused) who wants to bring his case within any of the above-mentioned exceptions. In other words, the accused has to prove the exception.

(..a..)

MISTAKE OF FACT[18]

QUESTION BANK

Q.1. “An act done by reason of mistake of fact and not by mistake of law in good faith believing himself to be justified by law is a good defence to a charge of crime” critically examine above statement with reference to case law.

Q.2. “Ignorentia faciit doth excusat, Ignorentia juris non excusat.” Discuss this maxim in the light of leading cases.

SHORT NOTES

Mistake of Fact
Mistake of Law.
Mistake of fact and mistake of law

SYNOPSIS

I] Introduction

II] Mistake of Fact under I. P. C.

A) Act done by a person bound or by mistake of fact believes himself to be bound by law.
B) Act done by a person justified, or believing himself justified by the law

1) Justified by law.

2) Distinction between Ss. 76 to 79

I] INTRODUCTION:-

The Common Law principle, ‘Ignorentia facti doth excusat and Ignorentia juris not execusat’ (ignorance of fact is an excuse and ignorance of law is no excuse), have been embodied in Ss. 76 to 79 of the I.P.C. This excuse is based on the principle that a man who is mistaken about the existence of a fact can not form the necessary intention required to constitute the offence and is, therefore, not responsible in law for his deeds.

II] MISTAKE OF FACT UNDER I.P.C.

A) Act done by a person bound or by mistake of fact believing himself

bound by law[19] (S.76):-

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.

Illustration

i) A, a soldier, fires on a mob by the order of his superior officer in conformity with the comments of the law. A has committed no offence.
ii) A, an officer of a court of justice, was ordered by that court to arrest Y, and after due enquiry, believing Z to be Y, arrests Z, A has committed no offence.

This section excuses a person who has done what, by law, is an offence but is done under a misconception (ignorance) of facts, leading him to believe in good faith that he was commanded by law to do it. This section is of special importance in regard to the military and police acting under their officer’s command and in respect of private persons assisting the police.

1) Mistake of fact: –

Mistake (or ignorance) of fact is an excuse. It is because no mens rea exists to constitute a particular offence, though actus reus is there. Mistakes also have a recognised place in civil law. Such a mistake may be caused due to forgetfulness, ignorance, imperfect information, negligence, stupidity or superstition, but it must not be due to design, pre-arrangement, etc.

In State of West Bengal V/s Shew Mangal Singh[20]

Facts: – A Police Officer, on the order of the Deputy Commissioner, fired on a mob, which had become violent, thereby killing two persons. They were convicted for causing the murder of two innocent persons by the Session’s judge.

Supreme Court Held: – that the police were protected under S.76 since they were bound to protect law and order.

Mistake of fact is no defence in the following two cases viz (namely): –

1) When the responsible inquiry would have elicited the true fact[21]

2) When there is strict liability imposed by the statute.

2) Mistake of Law[22]: –

Mistake or ignorance of the law is no defence. The term ‘law’ means the general law of the land, as well as bylaws, rules and regulations having the force of law. Ignorance of the law is no defence to the native or foreigner who commits the crime, although it may be the ground for mitigation of sentence (punishment). Ignorance of the law is no defence because every man is presumed to know the law of the land. If ignorance of the law is allowed as a defence, it may screen the offenders and lead to endless complications; it may lead to uncertainty in the administration of the justice system. Another reason for ignorance of law not being a defence is that laws are generally based on fairness and common sense.

In R. V/s Baily[23]

Facts: – A sailor was charged with an offence that the British Parliament had just forbidden. But the passing of such a law could not possibly be known to him since he was far away at sea, and the offence was committed before the news of its enactment could reach him. He took the defence of ignorance of the law.

Held: The court convicted him for that offence, rejecting ignorance of the law as a defence.

3) In good faith, believes himself to be bound by law[24]: –

To get the benefit of S.76, an accused has to prove that in good faith, he believed himself to be bound by law to do that act. Thus, a soldier or policeman acting under the command of his superior is not liable for consequences that occur thereby.

B) Act is done by a person justified or by mistake of fact believing himself

to be justified by the law[25] (S.79):-

Another case in which a person under a mistake of fact can be excused is mentioned in S. 79. It provides that nothing is an offence if done by a person who, in good faith, believes himself to be justified by law in doing that act.

Illustration

‘A’ sees ‘Z’ and commits what appears to ‘A ‘to be a murder of ‘B’. ‘A’, in exercise to the best of his judgement, exerted in good faith of the power (which the law gives to all persons apprehending murders in the act), seizes Z in order to bring Z before the police authorities. A has committed no offence, though it may turn out that Z was acting in self-defence against ‘B’.

In Waryam Singh V/s Emperor

Facts:- An accused killed a man at night with several blows from a stick. At the time of the attack, he believed in good faith that the object of his assault was not a human being but a ghost or some other object than a living human being.

Held: – that the accused was acting under a mistake of fact as stated in S.79. Therefore, he was acquitted.

1) Justified by law:-

When the law justifies a person in doing an act, the commission of that act does not amount to an offence.

Thus, a person is entitled to cut off those portions of a tree growing on his neighbour’s land, which overhangs his land, as he is justified by the law in doing such an act. It does not, by virtue of this section, amount to an offence of mischief punishable under S.427

2) Distinction between S. 76 and S. 79:-

The distinction between S. 76 and S. 79 is that, in S.76, a person is assumed to be bound, and in S.79, to be justified. In other words, the distinction is between a real (S.76) or supposed (S.79) legal obligation and a real or supposed legal justification for doing the particular act. Under both sections, there is a bonafide intention to advance the law; therefore, both sections are identical. S.76 protects military and police, acting under their officer’s commands and private persons assisting to assist the police, but S.79 is meant to protect civilians who assume themselves ‘justified by law’ in doing the State’s act (the act which is supposed to be carried out by the state)

(..b..)

JUDICIAL ACTS[26]

(Ss.77 to 78)

77 and S. 78 grant immunity from criminal prosecution to judges and to those who carry out their orders.

These sections provide that nothing is an offence which is done-

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

2) in pursuant to the judgement or order of the court of justice, while such judgement or order remains in force, and the person doing the act, in good faith, believes that the court has jurisdiction although it has not (S.78).

(..c..)

ACCIDENT[27] (S.80): –

S 80 provides that nothing is an offence which is done by accident or misfortune-

1) Without criminal intention or knowledge.

2) In the doing of a lawful act-

i) In a lawful manner.
ii) By lawful means, and

iii) With proper care and caution.

Illustration: –

A is at work with a hatchet; the head flies off and kills a man. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence.

In State of Orissa V/s Khoraghsi

Facts: – The accused was a tribal. He went into the forest to hunt the animals. He shot an arrow with a bonafide intention that aimed at an animal. But the arrow caused the death of a human being.

Held: – Court acquitted accused under S.80.

(..d..)

NECESSITY (S.81)

(Act done to avoid greater harm)

QUESTION BANK

Q.1. “Necessity knows no law” critically examine the provisions relating to

necessity as a defense to a criminal charge under the penal code.

SHORT NOTES

Necessity

SYNOPSIS

I] Introduction

II] Act done to avoid other harm. (Necessity) (S.81).

I] INTRODUCTION:-

By necessity means a situation where conduct prompts some value higher than the literal compliance with the law. According to Oliver Goldsmith, smaller evil is allowed to procure a greater good in all human institutions. A necessity in legal context involves the judgment that the evil of obeying the letter of the law is socially greater than the evil of breaking the law.

Thus, wherever necessity forces a man to do an illegal act, forces him to do it justifies him because no person can be guilty of a crime without the will and intention. This is explained in the famous maxim “Necessities non habit legem” (i.e. Necessity knows no law).

II] ACT DONE TO AVOID OTHER HARM (NECESSITY)[28] (S. 81):-

An act done with the knowledge that it is likely to cause harm but done in good faith and without any criminal intention to cause harm to prevent or avoid other (greater) harm to a person or property is not an offence.

Explanation[29]: –

It is the question of fact in such a case as to whether the harm was of such a nature and so imminent to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

Illustrations

a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that before he can stop his vessel, he must inevitably run down (hit) a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that by changing his course, he must incur risk of running down (hitting) a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down boat C and in good faith for the purpose of avoiding danger to the passengers in boat B, he is not guilty of an offence. However, he may run down boat C by doing an act which he knew was likely to cause that effect if it is found as a matter of fact, that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C.
b) in a great fire, A pulls down houses to prevent the conflagration from spreading. He does this with the intention of saving human life and property in good faith here. If it is 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.

Thus, S. 81 stresses three conditions to claim exemption from criminal responsibility, viz-

i) The harm to be avoided must be such as to justify risk of doing an act likely to cause harm, and,
ii) The act must have been committed in good faith without any criminal intention to cause harm.

The doctrine of necessity stated under S.81 is based on the principle that when, in a sudden and extreme emergency, one or the other of two evils is inevitable, it is lawful to direct events that the smaller only shall occur.

In R. V/s Dudley and Stephens[30]

Facts: – The accused Dudley, Stephens one Brooks, all able-bodied English Seamen and the deceased, also an English boy of 18 years of age, was compelled to put into a small boat after a shipwreck on the high seas. In this small boat, they had no supply of water and food. They remained without food and water for three days. On the fourth day, they caught a small turtle upon which they subsisted for a few days, and this was the only food they had up to the eighth day; Dudley and Stephens killed the boy and fed flesh and blood to survive for four days. On that day, the boat was rescued by a passing vessel.

They were prosecuted for the murder. However, the accused pleaded that they acted out of necessity to preserve their lives. They further argued that if they had not fed upon the boy’s body, then they would probably not have survived to be so rescued but would have died of famine within the four days.

Held: – The deliberate killing of an unoffending and unresisting man (boy), however great the temptation, cannot be justified by necessity.

In Gopal Niadu V/s Emperor[31]

Facts: The drunk created a public nuisance and grave danger. The village Magistrate arrested him. The accused filed a complaint against the Magistrate for wrongful confinement.

Court Held: – that the Magistrate’s act of arresting drunks was a necessity.

(..e..)

ACT OF CHILD[32]

(Ss. 82, 83)

QUESTION BANK

Q.1. How far minority a good ground of defence?

SYNOPSIS

1) Absolute immunity to a child below 7 years (S.82)

2) Qualified immunity to a child above 7 and below 12 years of age (S. 83)

3) No immunity to a child above 12 years.

82 and 83 give protection to a child under a particular age from criminal prosecution and punishment.

1) ABSOLUTE IMMUNITY TO A CHILD BELOW 7 YEARS (S. 82)

82 grants absolute immunity to a child below seven years of age. Such immunity is granted to a child below seven years on the ground that such a child is doli incapax, i.e. incapable of doing a criminal act. It is because a child under such an age group cannot form the necessary intention to commit a crime.

2) QUALIFIED IMMUNITY[33] TO A CHILD ABOVE SEVEN AND BELOW 12 YEARS OF AGE (S. 83)

83, however, provides qualified immunity to a child above seven years of age and below twelve years of age. It provides that nothing is an offence done by a child above seven years of age and under twelve who has not attained sufficient understanding to judge the nature and consequences of his conduct on that occasion.

Thus, if it is shown that the child has not attained the requisite degree of understanding to judge the nature and consequence of his conduct, he is exempted from criminal liability; in the absence of such proof, the child above 7 years of age but below twelve years is as much liable for his criminal act as an adult. For example, if the child of 9 years picks up a necklace from his friend’s house and immediately sells it for half the price, this act shows that he was sufficiently mature to understand the nature and consequence of his deed. Therefore, his act would amount to theft.

However, the age of immunity and maturity differs from country to country. In Malaysia and England, the age of complete immunity is ten years, and children above ten and below 14 enjoy qualified immunity; in the U.S.A., the age of absolute immunity varies from state to state, between eight and twelve.

In Hiralal Mallick V/s State of Bihar[34]

Facts: – Hiralal Mallick, a twelve-year-old lad, with his two elder brothers, was charged with the offence of murder. Though he was twelve years old, he wielded a sword, striking the neck of the deceased to take revenge and ran away from the spot like his brothers.

Held: – Hiralal’s conduct shows sufficient maturity to judge the nature and consequences of his act. Therefore, his conviction was upheld.

3) NO IMMUNITY TO A CHILD ABOVE 12 YEARS

However, a child above twelve years of age is liable for a crime. There is no immunity in favour of him. The provisions under this section are subject to the Juvenile Justice (Protection and Welfare) Act. 2000.

(.. f ..)

UNSOUNDNESS OF MIND[35]

(S. 84)

QUESTION BANK

Q.1. Unsoundness of Mind is good ground of defence.

Q.2. Discuss ‘Insanity’ as a defence in a criminal trial.

Q.3. Discuss fully the provisions regarding ‘mental incapacity’ as a factor

negativating guilty intention.

Q.4 How far “Insanity” is good ground of defence?

SHORT NOTES

Legal and medical insanity.

SYNOPSIS

I] Introduction.

II] Act of a person of unsound mind (S.84)

III] Medical and legal insanity.

IV] Tests of insanity.

I] INTRODUCTION

Unsoundness of mind or insanity is a complete defence against a criminal charge. It is because of the assumption that one who is insane has no mind and hence cannot have the necessary mens rea to constitute that offence. Therefore, such a person is even more protected than a child. Moreover, the object of punishment to reform a criminal does not serve in the case of an insane person since he cannot understand the object of punishment inflicted on him.

II] ACT OF PERSON OF UNSOUND MIND (S.84)

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 the law. Under this section, the word ‘unsoundness of mind’ is deliberately used because, according to Huda, it is a more comprehensive term than insanity.

Ingredients: –

A criminal act of a person is exempted from punishment if it is shown –

1) that the accused was of unsound mind.

2) that he was of unsound mind at the very time of his doing

the offence and not merely before or after the act and

3) that as a result of unsoundness of mind, he was incapable of knowing the nature of the act or what he was doing was either wrong or contrary to law.

However, if such a person becomes worse and attacks another person, he may be detained and kept in a mental hospital for care but not in jail.

III] MEDICAL AND LEGAL INSANITY[36]

Insanity, according to medical science, is a disease of the mind that impairs the mental faculties of a man.

It includes idiocy, madness, lunacy, mental derangement, mental disorder, abnormality, even an uncontrollable impulse driving a man to kill others and every other form of mental abnormality known to medical science.

However, the insanity or unsoundness of mind implicit in law under this topic is very restricted. In law, insanity means a disease of the mind that impairs a cognitive faculty (i.e. reasoning capacity) of a man to such an extent as to render him incapable of understanding the nature and consequences of his act. It is only of particular and appropriate kind of insanity which is regarded as insanity in law and is excusable.

In Surendra Mishra V/s State of Jharkhand (A.I.R. 2011 S.C. (Cri) 254)

Supreme Court ruled that even though the term “unsoundness of mind” is not defined in I.P.C., it has an equivalent meaning to ‘insanity’. An accused seeking acquittal under insanity should prove legal insanity, not medical insanity.

IV] TESTS OF INSANITY[37]

As discussed earlier, there are various degrees of insanity known to medical scientists or psychiatrists; however, the law does not recognise all sorts of insanity. Legal insanity, as contemplated under S. 84, is that unsoundness of mind in which a person completely loses his cognitive faculties and is incapable of knowing the nature of his act or that what he was doing was wrong or contrary to law. Therefore, the important question in many cases that come before the court is how the difference between medical and legal insanity can be made as an excuse. There are a number of tests laid down to answer this question. However, the most notable among them is the ‘right and wrong’ test laid down in M. Naughten’s case.

In Mac Naughtens Case[38]

Facts: – The accused, Mac Naughten, was charged with the murder of Mr Drummond (Secretary to the Prime Minister, Sir Robert Peel) by shooting him in the back as he was walking up. An accused was suffering from the insane delusion that Sir Robert Peel (The Prime Minister) had injured him. He mistook Mr Drummond for Sir. Robert and shot and killed him. The accused pleaded not guilty on the grounds of insanity caused by certain morbid delusions.

Held: The accused was acquitted on the grounds of insanity. This judgement created a sensation in England. Therefore, to clarify the law on this subject, fifteen judges of the House of Lords laid down some principles. Viz.

Rules of Presumption: –

1) Every man is to be presumed sane and to possess a sufficient degree of

reason to be responsible for his crime until the contrary is proved.

2) To establish a Defence on the ground of insanity, it must clearly be proved that, at the time of committing the act, the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing or not to know what he was doing was wrong.

3) But if the accused was conscious that the act was one which he ought not to do and if the act was at the same time contrary to the law of the land, he is to be punished. Thus, the test is released with the power of distinguishing between right and wrong.

Mac Naughten’s Case principles are formulated under S.84 of the I.P.C.

In Dayabhai Chhaganbhai Tahakkar V/s State of Gujrat[39]

Facts: The accused was Kalavati’s husband. He did not like his wife; therefore, he wrote a letter to his father-in-law stating this fact to him. After some months, he again asked his father-in-law to take Kalavati to his house. He wrote that he would take Kalavati on or before 9/4/1959. But he did not come on that day. On that night, Kalavati’s shout was heard by her neighbours, crying that her husband was beating her and stabbing her. She also called for the help of neighbours. Neighbours called the accused, but by the time he came out, Kalavati was found dead with a number of wounds on her body. The accused took the defence of insanity. But he was convicted of murder by Sessions Judge. This case eventually came to appeal before the Supreme Court.

The Supreme Court Held: – that the crucial point of time for ascertaining the State of mind of the accused is the time when the offence was committed, and it can be ascertained from the circumstances which proceeded, attended and followed the crime. Thus, the conduct of the accused prior to and at the time of the incident is relevant. The normal conduct of the accused prior to and after the incident disallows the defence of insanity in this case.

(..g…)

DRUNKENNESS OR INTOXICATION (INVOLUNTARY)

(S. 85 & 86)

QUESTION BANK

Q.1. Discuss the liability of an intoxicated person under the I.P.C.

Q.2. Intoxication as a defence.

SYNOPSIS

I] Introduction

II] Intoxication as a defence under I.P.C [Ss. 85, 86)

I. INTRODUCTION:-

There are three kinds of abnormal persons who are unable to form rational thinking and do not know the nature of their act. They can also not know the effects and legal consequences of their act. They are persons of unsound mind, persons heavily drunken (intoxicated) and minors. It is because they lack the mens rea requisite for committing that crime. Under S. 85 and S. 86, intoxication has been provided as a defence to the criminal charge; however, such intoxication should not be voluntary[40].

II] INTOXICATION AS DEFENCE UNDER I.P.C (Ss.85 AND 86)

If read together, Ss. 85 and 86 give a comprehensive statement of the law on the subject of intoxication as a defence to criminal prosecution. It provides that the person will be exonerated from liability for an act done while in a state of intoxication if he, at the time of doing it by reason of intoxication, was-

a) incapable of knowing the nature of the act, or
b) that he was not in the state of mind to know that the act was either wrong or contrary to law, and
c) that the thing (liquor etc.) which intoxicated him was administered to him without his knowledge or against his will, and
d) voluntary drunkenness is no excuse for the commission of a crime.
e) that the burden of proving intoxication without his knowledge or against his will lies on the accused.

Thus, voluntary drunkenness is no defence to a criminal charge. This is because allowing voluntary drunkenness as the defence will cause serious defects in the administration of the criminal justice system.

In Basudev V/s State[41]

Facts: – The accused was a retired military Jamadar who attended a marriage party in which he drank liquor heavily. He wanted to sit in a chair where a boy already had sat. The accused asked him to stand so that he would sit in it. The boy refused. The accused became annoyed and shot the boy with his pistol. The boy died on the spot. Thereafter, the accused walked to the police station and surrendered himself. The accused pleaded that he was heavily intoxicated.

Held: – Voluntary intoxication is no defence to a crime. Moreover, the conduct of the accused, standing, arguing and shooting at a boy and walking to the police station himself without the help of anybody, shows that the accused did not lose his state of mind. He was aware of what he was doing. Therefore, he was convicted of the offence of murder.

In the Director of Public Prosecution V/s Beard[42]

Facts: – In this case, Beard was charged with the murder of a girl of thirteen. He ravished her, and in furtherance of the rape, he placed his hand upon her mouth and his thumb upon her throat, in consequence of which she was suffocated. His defence was that he was drunk.

Held:- Drunkness voluntarily is no defence to a criminal charge. Therefore, the accused was convicted of murder.

(..h.. )

CONSENT

(S .87 to 92)

QUESTION BANK

Q.1. Explain the defence of consent as provided under I.P.C, with reference to decided case law.

Q.2. “He who consents suffers no injury” Explain the applicability of this principle to criminal liability.

SYNOPSIS

I] Introduction.

II] Definition of the consent (S. 90)

III] Scope of the defence of consent.

I] INTRODUCTION

‘Volunti non fit injuria’ seems to be the defence accepted in criminal charges also. Ss. 87 to 91 of the I.P.C incorporate this principle. These sections lay down the nature and Scope of the defence of consent in a criminal trial.

II] DEFINITION OF CONSENT (S. 90)

S.90 defines consent negatively. It lays down what is not consent. It provides that consent is not a consented if it is given –

1) by a person under fear of injury, or

2) by a person under a misconception of fact and the person

obtaining the consent knows or has reason to believe this

3) by a person of unsound mind.

4) by a person who is intoxicated

5) by a person under twelve years of age.

-and cannot understand the nature and consequence of that to which he gives his consent.

It is also positively defined by Jurist Story as “consent is an act of reason, accompanied with deliberation, the mind weighing as in balance the good and evil on each side’.

In Emp. V/s Fattemah

Facts: – The accused, in this case, professed himself to be a snake charmer and persuaded the deceased to allow themselves to be bitten by the poisonous snake, inducing them to believe that he had the power to protect them from harm.

The Court Held that: – the consent given by the deceased allowing themselves to be bitten did not protect the accused. Such consent has been founded on a misconception of the fact that is, in the belief that the accused had power by charms to cure snake bites, and the accused knowing that the consent was given in consequence of such misconception.

III] SCOPE OF THE DEFENCE OF CONSENT

Ss. 87, 88, 89, and 91 describe the Scope of S. 90, i.e., the defence of consent.

1) An act not intended or known to be likely to cause death or grievous

hurt to a person above 18 years of age who has given (express or

implied) consent to suffer it is not an offence[43] (S. 87)

Illustration

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; A, while playing fairly, hurts Z, and A commits no offence.

However, this section does not permit a man to give his consent to anything likely to cause his own death or grievous hurt. Ordinary games such as fencing, single sticks, boxing, football, and the like are protected by this section.

2) Act not intended to cause death done by consent in good faith for

person benefit, is no offence[44] (S. 88)-

Illustration

A surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers from a painful complaint but does not intend to cause Z’s death and intends in good faith Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence if Z dies.

The preceding section allows any harm to be inflicted short of death or grievous hurt. This section sanctions the infliction of any harm if it is for the benefit of the person to whom it is caused. However, no consent can justify an intentional cause of death. This section protects surgeons, surgical operations, and teachers’ reasonable acts (i.e., moderate punishments inflicted on the pupil to enforce discipline in school.).

3) Act done in good faith for the benefit of a child or insane person, by or by the consent of the guardian, is no offence (S. 89):-

Provided that this exception shall not extend to –

i) the intentional causing of death or attempting to cause death.
ii) the act, which the person doing it knows to be likely to cause death for any purpose other than (a) the preventing of death or grievous hurt or

(b) the curing of any grievous disease or infirmity.

iii) the voluntarily causing or attempting or abetting to cause hurt for any purpose other than (a) prevention of death or grievous hurt or

(b) curing of any grievous disease or infirmity.

Illustration

i) A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the (kidney) stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, inasmuch as his object was the child’s cure.
ii) A, a parent, whips his child moderately for the child’s benefit. A has committed no offence[45].

This section empowers the guardian of an infant under twelve years or an insane person to consent to the infliction of harm to the infant or the insane person, provided it is done in good faith and is done for his benefit. A person above twelve years of age is considered to be capable of giving consent under S.88.

4) Exclusion of acts which are offences independent of harm caused[46] (S.91):-

Illustration

Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”, and the consent of the woman or her guardian to the causing of such miscarriage does not justify the act.

This section is a sort of exception to Ss.87, 88, and 89. The defences under these sections are not available to acts that are offences independent of any harm. Thus, causing miscarriage, public nuisance, offences against public safety and morals, etc., are independent offences and can not be justified by the consent of that person or by the consent of his guardian.

5) Act done in good faith for the benefit of a person without consent, no

offence[47] (S. 92)

Illustrations

a) 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.
b) 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 shot gives Z a mortal wound. A has committed no offence[48].

This section deals with cases of emergency, wherein the consent will be implied or inferred. S. 92 provides that where harm is caused in good faith to a person without that person’s consent, where circumstances are such that it is impossible for that person to signify consent or if that person is incapable of giving consent (being an infant or a Lunatic) and if there can be no guardian or other person from whom consent can be obtained in proper time, any harm caused to such person is justified. However, this right is restricted by the same limitations as discussed in S.89, except for the slight difference that under this section, even the causing of simple hurt is prohibited for any purpose other than the prevention of death or hurt. Thus, Ss. 88, 89, and 92 are the protections of medical practitioners.

(..i..)

COMMUNICATION MADE IN GOOD FAITH[49] (S.93)

S.93 protects a man from criminal prosecution for communicating in good faith for the benefit of the person to whom it is made.

Illustration

A surgeon, in good faith, communicates to a patient his opinion that he cannot live long. The patient dies as a 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.

(..j..)

DURESS (COMPULSION)[50] (S94)

S.94 exempts a man from criminal liability in respect of acts committed by him under compulsion or duress.

S.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.

Provided the person doing the act did not, of his own accord or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he becomes subject to such constraint.

Explanation 1: –

A 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.

Explanation 2: –

A person seized by the gang of dacoits, and forced, by the 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 open for the dacoits to enter and plunder it, is entitled to the benefit of this exception.

This section is based on the maxim. ‘Actus me invoto (factus) non-est mens actus’, i.e. an act which is done by me against my will is not my act, and hence I am not responsible for it.

(..k..)

ACT CAUSING SLIGHT HARM[51] (S. 95)

95 lays down the law as to the trifling acts. It provides that nothing is an offence by the reason that-
i) it is caused, or }
ii) is intended to cause, or } any harm

iii) is known to be likely to cause }

If that harm is so slight that no person of ordinary sense and temper would complain of such harm.

This exception is based on the maxim ‘de minimis non curat lex’, i.e. the law takes no account of trifles. Thus, it is theft to dip a pen in another man’s ink-pot or to take a sheet of paper from another’s drawer; it is causing hurt to a man by pressing against him in getting into a railway compartment or a theatre hall, but the law does not take notice of such acts. If it were made punishable, all free movement and intercourse in society would come to an end; men would not be able to live together.

(..l…)

RIGHT OF PRIVATE DEFENCE[52]

(Ss. 96 TO 106)

QUESTION BANK

Q.1. Briefly explains the nature, extent duration of the right of private defence of

the body under the I.P.C.

Q.2. “The Indian Penal Code permits a man to use force as a right of private defence to prevent harm to person and property” Discuss.

Q.3. What are the acts against which there is no right of private defence?

Q.4. Explain the right of private defence. When does the right of private defence extend even to the causing of the death of a human being?

Q.5. Explain the Scope of the right of private defence under the I.P.C, and explain when death can be caused in defence of property.

Q.6. Explain fully the right of private defence along with its exceptions.

Q.7. When private defence extends to causing of death to protect body and property. SHORT NOTES

The right of private defence of property.

SYNOPSIS

I] Introduction.

II] Right of private defence.

A] Right of private defence of body.

1) Right of private defence of body (S.97 and 98)

2) Acts against which there is no right of private defence (S. 99)

a) Acts of a public servant.
b) Time to obtain protection of public authorities
c) Extent of the right of private defence.

3) When right of private defence of body extend to cause death

(S.100)

4) Commencement and continuance of right of private defence of

body (S.102)

B] Right of private defence of property: –

1) Right of private defence of property (S.97 and 98).

2) Acts against which there is no right of private defence of property (S.99)

3) When right of private defence of property extend to causing death (S.103)

4) Commencement and continuance of right of private defence of property

(S.105)

I] INTRODUCTION:-

The right of private defence is recognised in every civilised system of law. By nature, all creatures have one or the other form of tactic or organ of defence. The right of private defence is very fundamental in nature. Therefore, the law of private defence provides that when a person is suddenly faced with an attack on his person or property. Immediate aid from the State (i.e. police, etc.) machinery is not available, and that person is entitled to defend himself and resist the attack and to inflict on the offender such harm that it is necessary to defend. The right of private defence serves a social purpose. There is nothing more degrading for a human being than to run away in a cowardly manner at a time of peril.

In India, the right of private defence is dealt with by Ss. 96 to 106 of the Indian Penal Code. The rights guaranteed under these sections are the right to defend not only the person and property of a person himself but also the person and property of others. S.96, therefore, declares that nothing is an offence which is done in the exercise of the right of private defence. However, this right of private defence is subject to the limitations imposed in Ss. 99 to 105 of the I.P.C. S.97 lays down that the right of private defence embodies the defence of the person and property of a person himself as well as of others (i.e. of strangers).

In Naveen Chandra V/s State of Uttaranchal[53]

Held:- The burden of proving the right of private defence is on the accused.

However, he need not prove defence beyond a reasonable doubt; mere preponderance of probability is sufficient.

In Gopal V/s State of Rajasthan (2013 S.C.C. (2) 188)

Supreme Court that:-S. 96 provides ‘Right of Private defence’; but does not provide its definition. Deciding on the right of private defence is a question of fact; whether the defence of the right of private defence is proper or not depends upon the fact and circumstances of each case.

Thus the right of private defence may be of a person (i.e. of the body) or property. A person can defend not only his own person or property but the person and property of others (strangers) too.

II] RIGHT OF PRIVATE DEFENCE:-

A) Right of Private Defence of Body[54]:-

1) Right of Private Defence of body: –

a) As studied above, S.97 provides for the right of private defence of

person’s own body as well as of another’s, against any offence

affecting the human body (S. 97)-

Indian law, on this point, provides a wider right of private defence than English law. In Indian law, even a stranger may defend the person or property of another, whereas, in English law, there must be some kind of existing relationship, such as that of master and servant or husband and wife or guardian or ward, to exercise the right of private defence of another person[55].

b) Right of private defence against the act of a person of unsound mind

etc[56]. (S. 98) –

This section provides that the right of private defence is available even against the person who might not be held criminally liable for his act, either because of his unsound mind or due to want of maturity of understanding or by reason of any misconception on the part of that person.

Illustration

a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence (because of his being mad). 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 a 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 the misconception.

2) Acts against which there is no right of private defence[57] (S.99):-

This section lays down the limit on the right of private defence of body as well as of property mentioned under Ss. 96 to 98 and 100 to 106 viz.

a) Acts of a public servant

There is no right of private defence against the act of a public servant, acting in good faith in the discharge of his legal duty, provided the act is not illegal. However, the right of private defence is available even against a public servant when: –

i) the act of a public servant reasonably cause apprehension of death or grievous hurt.
ii) when a public servant does not act in good faith under the colour of his office.

iii) When the person exercising the right does not know or have any reason to believe that the attacker is a public servant or is acting under the direction of a public servant.

In Public Prosecutor V/s Suryanarayana[58]

Facts: – In this case, certain customs officers, on a search, found that the goods were smuggled from Yaman into Indian Territory. The smugglers, during the search, attacked the officers and caused injuries. They pleaded the right of private defence.

Court held: – that the officers had acted in good faith and under the colour of their office, and therefore no right of private defence was available to the accused.

b) Time to obtain the protection of public authorities: –

The right of private defence is also not available in cases where there is time to have recourse to the protection of the public authorities.

c) Extent of the right of private defence[59]: –

The right of private defence is restricted to not inflecting more harm than it is necessary to inflict for the purpose of defence. The right of private defence is a defensive right that cannot be extended to punish an attacker.

In Gokool Bowee[60]

Wherein the Court negatived the right of private defence of an accused who killed a weak old woman found stealing at night. The accused exceeded the right of private defence.

3) When the right of private defence of the body extends to causing death (S. 100)

In the following cases, the right of private defence extends in causing even the death of the assailant.

When an assault causes a fear of death

In this case, if the defender is so situated that he cannot exercise the right without risk of harm to an innocent person, he may even run that risk (S.106).

Illustration

‘A’ is attacked by a mob, which attempts to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he can not fire without risk of harming young children who are mingled with the mob. A commits no offence if, by so firing, he harms any of the children.

– a) When an assault causes fear of death.

b) When an assault causes fear of grievous hurt.
c) When an assault is made with the intention of committing rape.
d) When an assault is made with the intention of committing an unnatural offence[61].
e) When an assault is with the intention of kidnapping or abduction.
f) When an assault is with the intention of wrongfully confining a person and, thus, preventing him from taking recourse to public authority.

In Vishwanath V/s State of U.P[62].

Facts: – In this case, Gopal (a deceased) had married the sister of Vishwanath, an accused. But the relationship between Gopal and his wife became strained on account of Gopal’s suspicion of her chastity. Therefore, she was staying at her father’s house, where Vishwanath and her brother also lived. In contrast, Gopal was staying with his relatives, i.e. Banarasi, in nearby quarters of the Railway. Gopal insisted his wife stay with him in Banarasi’s house, but she refused. On one fine evening, Gopal sought the help of Banarasi’s family and took Banarasi and his two sons with him to his father-in-law’s house, where his two sons stood outside the door of the house and Gopal went inside. He tried to drag his wife out of the house, but she was struggling and refusing to go with him. Thereupon, to protect his sister, Vishwanath drew a knife from his pocket and stabbed Gopal. As a consequence, he died. The prosecution argued that the accused, Vishwanath, had exceeded the right of private defence. Whereas the accused pleaded that the killing was justified under the right of private defence, while the victim was to abduct the sister of the accused.

Held: The court accepted the defence of the accused and acquitted him.

4) Commencement and continuance of the right of private defence of a

body[63] (S.102): –

It provides that the right of self-defence 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.

However, it must be noted that the apprehension must be reasonable and must not be fanciful.

In State of U.P. V/s Ramswarup

Facts: – The attacker, when (he) was defeated by a person (accused), was running away to save his life when the accused shot him down with his gun, in the result of which the assailant died. The accused took the defence of the right of private defence of the body.

Held:- that the right arises as soon as the reasonable apprehension arises until the threat continues. There is no right to inflict punishment on the wrong door for his attack after the apprehension ceases. The right of defence ends with the necessity for it. Therefore, when the deceased was fleeing for his life, there was no justification to shoot him down. This is a case of murder and nothing else.

B) Right of Private Defence of Property[64]: –

1) Right of Private defence of property: –

Every person has the right to defend the property (whether movable or immovable) of himself or of any other person-

a) Against theft, robbery, mischief or criminal trespass, or any act which is

an attempt to commit theft, robbery or criminal trespass (S.97), and

b) Against the act of a lunatic or a person acting under a misconception of

facts (S. 98).

Illustration

A enters a house by night, which he is legally allowed to enter. Z, in good faith, taking (presuming) A for a house breaker, attacks A. Here, by attacking A under this misconception, Z commits no offence. However, A has the same right of a private defence against Z, which he would have if Z had not acted under this misconception.

2) Acts against which there is no right of private defence of property (S.99)

(S. 99 lays the same limitations on the right of private defence of property, as discussed in the right of private defence of the body.)

3) When the right of private defence of property extends to causing death (S.103):-

The right of private defence of property extends to the causing of death or any other harm to the offender; in the following cases, only Viz-

i) Robbery,
ii) House breaking by night.

iii) Mischief by fire to any building, tent or vessel used as a human

dwelling or as a place for the custody of property.

iv) 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. But in any other case, the right of private defence does not justify the killing of assailants (S. 104).

4) Commencement and continuance of the right of private defence of the

property (S. 105): –

The right of private defence of the property commences as soon as the reasonable apprehension of danger to the property commences: – The right continues in case of-

a) Theft – till

a) the offender has affected his retreat with the

property, or

b) the assistance of the public authorities is obtained,

c) the property has been recovered.

b) Robbery –

as long as

a) the offender causes or attempts to cause any

person death or hurt or wrongful restraint or

b) the fear of instant death or instant hurt or of

instant personal restraint continues.

c) Criminal trespass

or mischief

as long as the offender continues in the commission

of criminal trespass or mischief.

d) Housebreaking

by night

as long as the house trespass continues.

[1] दुश्टबुध्दी नाकारणारे घटक [दुश्टबुध्दी को नकारने वाले कारक।]

[2] सर्वसाधारण अपवाद (संरक्षणे). [सामान्य अपवाद (सुरक्षा)।]

[3] Through this code every definition of an offence every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the chapter entitled ‘General Exceptions’ though those exceptions are not repeated in such definition, penal provision or illustration.

[4] शम्य अपवाद [उचित अपवाद।]

[5] न्यायक्षम्य अपवाद.

[6] परिस्थीती बद्दल चुकभूल [स्थिति को लेकर असमंजस में।]

[7] लहान मुल. [ छोटा बच्चा]

[8] वेडे / बुध्दीभ्रम. [पागल / भ्रमपूर्ण।]

[9] मादक पदार्थाचे सेवन.-

[10] न्यायाीक कृत्य [न्याय का कार्य]

[11] न्यायालयाचे आज्ञेची अम्मलबजावनी करताना केलेले कृत्य [एक न्यायालय के आदेश के निष्पादन में किया कृत्य]

[12] गरज. [जरूरत]

[13] जुलूम/ बळजबरी. [अत्याचार / ज़बरदस्ती।]

[14] संम्म्ती. [अनुमति।]

[15] सद्भावपूर्वक केलेले कथन. [नेक नीयत से दिया गया बयान।]

[16] स्वसंरक्षनाचा अधिकार [आत्मरक्षा का अधिकार]

[17] पुरावा देन्याची जबाबदरी /बोजा [सबूत देणे का बोझ]

[18] परिस्थीती बद्दल चुकभुल [स्थिति को लेकर भ्रम]

[19] कायदयाने बध्द असलेल्या व्यक्तीने अथवा कायदयाने बध्द आहे असे समजना-या व्यक्तीने केलेले कृत्य. [कानून से बंधे किसी व्यक्ति द्वारा या कानून द्वारा बाध्य नहीं माने जाने वाले व्यक्ति द्वारा किया गया कार्य।]

[20] AIR 1981 SC 1917

In R V. Tolson ((1889) Q.B.D. 168.)

Facts: – Mrs. Tolson married Mr. Tolson in September 1880. He deserted her in December 1881. Later, on information and enquiries, she and her father came to conclusion in good faith that her husband was lost in ship that sunk with all its holds on board. On the belief that he was dead, she went through ceremony of marriage with another man in January 1887, before seven years elapsed. In fact Tolson was not dead and he returned from America in Dec.1887, and a woman was prosecuted for bigamy.

Held: – a bonafide belief on reasonable grounds in the death of husband (mistake of fact) at the time of the second marriage was a good defence. Therefore Mrs. Tolson was not held guilty.

[21] R.V. Stocks (1921 K.B.)

Facts: – A woman hears a rumor that her husband is dead. She makes no inquiry whether he is really dead or alive and re-marries. The rumors subsequently found out untrue and her previous husband was alive.

Court Held: – that a belief carelessly entertained cannot be pleaded as an excuse on the charge of bigamy.

[22] कायदयाबद्दल चुकभूल [कानून के बारे में एक गलती]

[23] 1800. In State of Maharashtra V/s. Mayer Hans George (AIR 1965 SC. 722,)

Facts: – The accused was charged for violation of foreign exchange regulation Act 1947, by bringing more gold than permitted. This ceiling limit was just imposed by the Reserve Bank by notification. Accused pleaded defence of ignorance of that notification.

Court Held: – Ignorance of law is no defence, since notification is also law.

[24] र्निदेाश मनान, (कृत्य) करणे स्वतः वर कायदयाणे बंधनकारक आहे अष्या समजुतीने केलेले कृत्य. [निर्दोष मन से कृत्य- एक ऐसा कार्य है जो इस समझ के साथ किया जाता है कि इसे करने के लिए व्यक्ति कानूनी रूप से बाध्य है।]

[25] र्निदेाश मनाने स्वतः वर कायदयाने कृत्य करण्याचे बंधन आहे असे समजणा-या व्यक्तीने केलेले कृत्य [एक व्यक्ति द्वारा किया गया कार्य जो यह मानता है कि वह अपने दम पर कार्य करने के लिए कानूनी बाध्यता के अधीन है]

[26] न्यायाीक कृत्य.

[27] अपघात.[ दुर्घटना]

[28] इतर नुकसान टाळण्यासाठी केलेले कृत्य/ गरज/ अवष्यकता म्हणून केलेले कृत्य [अन्य नुकसान को रोकने के लिए किया गया कार्य/आवश्यकता/आवश्यकता के रूप में किया गया कार्य]

[29] स्पष्टीकरण

[30] (1884) 14 QBD 273

In United States V/s. Holmes (1842)

Facts: – It is an American, case, wherein an American Vessel was while sinking after hitting to an iceberg. The crew and some of the passengers managed to get away in long boat. The accused Holmes was one of the occupants of such long boat. The long boat also leaked. Therefore, to lighten the boat. An accused Holmes and crew threw fourteen men and two women over board. None of the crew was thrown over board. They were subsequently rescued and charged for manslaughter.

Court Held: – In such dire situation lots (lottery) is the law of ocean. So accused should have prepared lots (i.e. selection by lottery) instead of throwing indiscriminately. Therefore accused were convicted, for manslaughter.

[31] (1922) Mad 605.

[32] बालकाचे कृत्य. [बच्चे की हरकत]

[33] लायक असल्यास मुक्त. [लायक हो तो मुक्त]

[34] AIR 1977 SC. 2236

[35] मनाची विकृती/वेडेपणा [मन/पागलपन का विक्षिप्तता]

[36] वैदयकीय आणि कायदेषिर वेडेपना. [चिकित्सा और कानूनी पागलपन।]

[37] वेडेपणाच्या चाचण्या [पागलपन का परीक्षण।]

[38] AIR 1977 SC 2236.

[39] AIR 1964 SC 1563

In Ashiruddin Ahmed V/s. State (1950 Cri. L.J. 225).

Facts: – The accused had dreamt that he was commanded by someone in paradise to sacrifice his own son of five years. The next morning the accused took his own son to a mosque and killed him by thrashing the knife in his throat. He then went straight to his uncle but finding a chawkidar nearby took his uncle to the tank at some distance and slowly told him the story.

Held: – that the accused was entitled to the benefit of S.84, as even though he knew the nature of the act he did not know that it was wrong.

[40] In Bablu alias Mubarik Hussain V/s. State of Rajasthan (AIR 2007 SC 697)

Facts– Accused found guilty of committing murder of his wife, three daughters and a son.

Defence- Accused took defence of drunkenness.

Held – Merely because accused claims to be in a state of drunkenness at relevant point of time, that does not in any way get dilute offence because one after another five lives were taken.

[41] AIR 1956 SC 488.

[42] (1920) AC. 479.

[43] 18 वर्शोच्या वरील व्यक्तीने (कृत्यास) दिलेली संमती की ज्यामधे संमती देणा-या व्यक्तीस जिवीताची अथवा गंभीर दुखापतीची शक्यता नाही; तर असे कृत्य अपराध नाही. [18 वर्ष से अधिक आयु के व्यक्ति द्वारा सहमति (घटना को) देणे से, जिसमें सहमति देने वाले व्यक्ति को जीवन या गंभीर चोट का कोई खतरा नहीं है; तो ऐसा कृत्य कोई अपराध नहीं है।]

[44] र्निदेाश मनाने (संमती देणा-या) व्यक्तीचा मृत्यू होऊ नये अशा विचाराने केलेले कृत्य गुन्हा होत नाही. [इस इरादे से किया गया कार्य कि सहमति देने वाला व्यक्ति मरना नहीं चाहिए, अपराध नाही है]

[45] (c) A confines his child, for the child’s benefit. A has committed no offence.

(d) A, in good faith, for his daughter’s benefit intentionally kills her to prevent her from falling into the hands of Pindarries. A is not with the exception.

[46] जरी संमती दिली असेल तरीही जे गुन्हे स्वतंत्रपणे (संमती असो अथवा नसेा)गुन्हे ठरलेले आहेत असे गुन्हे हे संमती असेल तरीही गुन्हे होतात. [भले ही सहमति दी गई हो ऐसे अपराध जो अलग से अपराधीकृत हैं (सहमति के साथ या बिना) सहमति होने पर भी अपराध हैं।]

[47] र्निदेाश मनाने व्यक्तीच्या संम्मती षिवाय त्याच्या फायदयासाठी केलेले कृत्य.[ किसी व्यक्ति की सहमति के बिना उसके लाभ के लिए जानबूझकर किया गया कार्य।]

[48] A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately perfored. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties to the child, intending, in good faith, the child’s benefit. A has committed no offence.

[49] चांगल्या मनाने केलेले निवेदण/ पुरविलेली माहिती. [नेक नीयत से दिए गए बयान/जानकारी।]

[50] धाकधपटषाही दाखऊन केलेले कृत्य. [जबारण किया कार्य।]

[51] अल्प अपय करणारे कृत्य [एक छोटा सा नुकसान करणे वाला अपराध।]

[52] संरक्षनाचा अधिकार [शारीरिक रक्षा का अधिकार]

[53] (AIR 2007 SC 363).

[54] शरीर संरक्षणाचा अधिकार [शारीरिक रक्षा का अधिकार]

[55] In Kulvant Singh V/s. State of Punjab (2004 AIR SCW 778)

Facts– accused party (claiming right of private defence), was armed with deadly weapons, Trespassed agricultural field of another party. They killed one woman there.

Held– Attacking party cannot claim the right of private defence. Right of private defence is the right of defence and not of attack. Therefore, in this case, it can not be presumed that attack is firstly started by informant’s (victim’s) party.

[56] वेडया व्यक्तीच्या कृत्या विरूध्द संरक्षनाचा अधिकार. [पागल व्यक्ति के कृत्यों के विरुद्ध संरक्षण का अधिकार।]

[57] अशी कृत्य की ज्या विरूध्द संरक्षणाचा अधिकार नाही. [एक आपराधिक कृत्य जिसके खिलाफ बचाव का कोई अधिकार नहीं है।]

[58] (1937)

[59] संरक्षन अधिकाराची व्याप्ती. [सुरक्षा अधिकार की सीमा।]

[60] (1866) 5 WR 33

[61] अनैसर्गिक (संभोगाचे) अपराध. [अप्राकृतिक (संभोग) अपराध।]

[62] AIR 1960, SC 67.

[63] शरीराच्या संरक्षनाचा अधिकार कधी चालू होतो व तो कधीपर्यंत चालू ठेवला जाउ शकतो [शरीर की सुरक्षा का अधिकार कब लागू होता है और इसे कब तक जारी रखा जा सकता है?]

[64] मालमत्तेच्या संरक्षनाचा अधिकार. [संपत्ति के संरक्षण का अधिकार।]