An Insight of General Exceptions under Indian Penal Code (IPC)

Introduction

Criminal Liability has been defined as being responsible for a criminal act. It is an established
principle of criminal law that no one should be convicted or held liable for a crime unless
some measure of subjective fault can be attributed to him.

This invariably means that such a person must not only actively perform the act (actus reus)
but also possess the guilty intension (mens rea) required for the commission of such offense.
These two elements are in a sine qua non to the commission of any offense as failure to
establish those elements leads to an acquittal.

However, it is not all acts that are to be punished. There are certain defenses that the law
provides which exculpates criminal liability. It is provided for in section 76 to 106 of Indian
Penal Code (IPC), 1860.

These defenses are based on the fact that although the person committed an offense, he
cannot be held criminally liable because as at the time the offense was committed, he was
justified of his acts or he had no intention to commit such offense.

According to Section 105 of Indian Evidence Act, 1872 the burden o proof lies on the
accused to prove the existence of a situation of general exceptions.

The above exceptions are provided in the following cases, K.M. Nanavati v State of
Maharashtra 1962 AIR (SC) 605, Dayabhai Chhanganbhai Thakkar v State of Gujrat 1964
AIR(SC) 1563 and Vijay veersingh v State of Uttar Pradesh 1990 AIR(SC)1459.

General Exception are recognized under the IPC

The General Exceptions stipulated under Section 76 to 106 of the IPC, 1860 includes the
following:

Mistake of fact

Accident

Necessity

Infancy

Insanity

Intoxication
Judicial Act

Consent

Communication

Duress

Trifles

Private Defense

Mistake of Fact

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. This 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 excercised 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 axe. The accused was said
to have been mistaken and thus acquitted.

Judicial Act

This exception excludes judges and it is done in compliance with an order of the court.

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

The act was performed by a judge

He exercised such power in good faith

In Surendra Kumar Bhatiya v Kanhaiya Lal and 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.

For the defense to be established in compliance with a court order Section 78, the ollowing
ingredients must be satisfied:

There must be a judgement or an order of the court

Such judgement or order must be in force

The court must have jurisdiction to pass such judgement or order

The person must exercise good faith believing that the court has jurisdiction

Accident

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
intension.

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 intension 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 CriJ 1191, A reported to his friends that there
was tiger or hyena which was in 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
opposition direction, A then fired the “animal” which kills E.

The court held it was an accident and the fact that the gun was unlicensed would not deprive
him of the benefit of the immunity.
The doctrine of Necessity/Self Preservation

This defence comprises self defence, defence of property and the exercise of reasonable care
during medical or health operations. Where deaths occur during defense to life or property
from an actual threat, it constitutes the defense of necessity.

Essential Elements-For the defence to be established under the act, he must satisfy the
following:

The act was done with the knowledge that it is likely to cause harm

It was exercised without criminal intension to cause harm

It was exercised in good faith

It was done to prevent other harm

It could be exercised to a person or property

This defense has limitations which are provided in the Doctrine of self-preservation means
that a person cannot commit an offense to preserve himself from harm or death. This was
illustrated in the locus classicus case of R v. Dudley and Stephen 14 Q.B.D 1884 where the
seamen were held liable for murder because they committed murder to preserve their own
life.

Infancy

According to Section 82 of IPC, nothing is an offense which is done by a child under seven
years of age. Thus a person under seven years of age is not criminally liable for any offense
committed.

By virtue of Section 83 of IPC, a person under the age of twelve but above the age of seven is
not criminally liable for any offense committed provided such child has not attained maturity
of understanding to know that he ought not to do the act or make the omission.

When the child has attained maturity of understanding that he ought not to perform such an
act, he becomes criminally liable. In Krishna Bhagwan v State of Bihar 1991 1 BLJR 321, A,
a child stole a necklace and immediately resold it to B. The court held that the fact that the
child sold the necklace immediately shows that the child has attained maturity of
understanding.

Insanity

This exception excludes a person rom 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 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 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

The provision or intoxication is stipulated under Section 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

Consent

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

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

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

Duress

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

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:

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

Private Defense

Although, the state is vested with the responsibility of protecting its citizens against imminent
dangers, there are circumstances which permit a private person to use reasonable force to
protect himself or property.
Any offense which arises as a result of that constitutes an exception to criminal liability. It is
provided in Section 96-106 of the IPC.

The right of self-defense provided under Section 96 is qualified and not absolute. It is
available where a person defends his body or the body of another; his property or the property
of another against theft, robbery, mischief or criminal trespass. This section is restricted to a
reasonable apprehension of danger and the force used must commiserate with that of the
assailant.

According to Section 99, there is right to private defense where:

There is no reasonable apprehension of death or grievous harm

The person knows or believes that the person doing the act is a public servant

The person knows or believes that the person doing the act is acting under the direction of a
public servant

Time is available to have the recourse of the protection of public authority

The force used is not commiserated with that of the assailant

Conclusion

Criminal liability makes a person liable for crimes committed by him and although IPC
recognized the fact that criminal acts must be punished, it also cognizance of the fact that not
all acts are to punished.

Acts which is justifiable or devoid of mens rea needs to be exempted from criminal
responsibility. This, the law has put in place. The accused person should also be provided the
right to be heard in all these circumstances.