Defences

General Exceptions under Indian Penal Code

{Sections 76 to 95}

Dr. Amit Guleria (Double Medalist; Gold and Silver)

Assistant Professor,
Dr. B.R. Ambedkar National Law University Sonepat
Email: [email protected]
 Defences
Excusable Defences (Secs. 76-95, IPC) Justifiable Defences (Secs. 96-106, IPC)
(General Exceptions) (General Defences)
Act done in absence of mens rea.
Act committed is not
Circumstances which negative excused, but justified on
the existence of mens rea. account of consideration
neutralizing the liability.
Eg: Eg:
• Bound by law. • Self defence.
• Mistake of fact. • Private defence.
 General Exceptions
Section 76, IPC: Act done by a person
bound, or by mistake of fact believing
himself bound, by law.— 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.
 Essentials of Sec. 76
An act done by a person who is bound by law in doing that act; or
(act of state or under state authority). Eg. Arrest by a police office is
not a wrongful confinement.

An act done by a person who believes himself to be bound by law in

doing that act;

The belief must be by reason of a mistake of fact and not of law;

The belief must be bona fide belief in good faith.

 Mistake of Fact
Ignorantia facit excusat, ignorantia juris non excusat.
Mistake
Mistake must be reasonable.
Mistake must be related to fact not to law.
The fact must be sufficient to misled a prudent person.
The act must be bona fide and committed in good faith.
Mistake may or may not be due to forgetfulness,
ignorance and imperfect information. It is a slip
made, but by mischance (Sandford v. Bed (1899).

Justice Coke observed that honest and reasonable

mistake stand in fact on the same footing as absence
of the reasoning faculty, as in infancy or perversion
of that faculty, as in lunacy (R. v. Tolson, (1889).
 Illustrations

(a) 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.

(b) 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.
Section 77, IPC, 1860, 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.
e.g. Punishment awarded by a Judge is not an offence.
* Power granted by law.
Section 78, IPC, 1860, 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.
Eg.
* Handcuffing on the order of court is not a wrongful
confinement.
* Hanging on the order of Court is not a murder.
Section 79, IPC, 1860, 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.

Illustration

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.
Section 80, IPC, 1860 Accident in doing a lawful act.—
Nothing is an offence which is done by accident or misfortune,
and without any criminal intention or knowledge in the doing of
a lawful act in a lawful manner by lawful means and with
proper care and caution.
Illustration
A is at work with a hatchet; the head flies off and kills a man
who is standing by. Here, if there was no want of proper caution
on the part of A, his act is excusable and not an offence.
By accident or misfortune.
 Without any criminal intention or knowledge.
 Doing the lawful act.
 Such act must be committed:
 in a lawful manner;
 by lawful means;
 with proper care and caution.
Accidently: Injury is caused neither willfully nor negligently/when the things
happen unexpectedly.
An effect is said to be accidental when the act by which it is caused is not done
with the intention of causing it.
It is something that happens out of the ordinary course of things.

Eg. Injury/death caused of a player in a cricket match.

Not an accident: Mr. A takes the gun and without examining whether loaded or
not, points on B and pulls the trigger and B dies. There is absence of proper care
and caution hence, it is not an accident.
Mr. X shoots at a bird in B’s house in order to commit theft but killed Mr. Y. Mr.
X cannot take the defence of accident as commission of theft is not a lawful act.
Section 81, IPC, 1860: 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 a 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.
• Sudden an extreme emergency.
• Absence of criminal intention
• Good faith
• Avoidance of other harm.
• Smaller harm may occur.

• Eg. Mr. Z saw sparking in a car in the parking area. He broke the glasses of
that car and cut down the wires in order to prevent the harm to other vehicles
in the parking area. Mr. Z has committed no offence.
Doctrine of Self Preservation:
Saving the life from starvation, stealing
the bread by causing injury to baker is no
defence and one is liable for theft.
Killing one person to stay alive on the
flesh of other is no defence and one is
liable for murder (Dudley & Stephens
(1884)
Section 82, IPC, 1860: Act of a child under
seven years of age.— Nothing is an offence
which is done by a child under seven years of
age.
* Child is not endowed with any discretion
so as to distinguish right and wrong.
Presumption of law.
* Doli incapx
Section 83, IPC,1860: 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.
Malitia Supplet Aetatem = malice supplements
age
 Child

Below 7 years of
age Above 7 and below
Above 12 years of
12 years of age
{Not liable} (Sec. age {Liable}
(Sec. 83)
82)

Of mature intellect
{Liable}

Of immature
intellect {Not
liable}
Eg.
Mature Intellect: If a child of 10 years takes
away the gold chain without the consent of its
owner and sells it at half price to a goldsmith
(liability for theft).
Immature Intellect: If a child of 10 years takes
away the gold chain without the consent of its
owner and starts playing with it as usual the
children do (no liability for theft).
11 years and 364-65 days
Sec. 84, IPC, 1860: Act of a person of
unsound mind— 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
law.
 Incapable of
knowing the
nature of the
act or that Devoid of
Defense of Protection to Degree of
what he is criminal
insanity lunatics. reasoning.
doing is intention.
wrong or
contrary to
law
M. Naughton Rule:
The accused shot one Mr. Drummond, thinking him to be
Sir Robert Peel, the then Prime Minister of England. The
witnesses who were examined stated that the accused, at
the time of the act, was impelled by an uncontrollable
impulse, while others stated accused was insane.
“The person is presumed to be sane unless the contrary
is proved and the act must be followed by the defect of
reason caused by the “disease of the mind” and the
person was unaware of the nature and quality of the
crime”.
"Every man is to be presumed to be
sane, and ... that to establish a defense
on the ground of insanity, it must be
clearly proved that, at the time of the
committing of the act, the accused was
laboring under such a defect of reason,
from disease of mind, and not to know
the nature and quality of the act he was
doing; or if he did know it, that he did
not know he was doing what was
wrong."
The cardinal principle
in M'Naghton test is the
inability to know the
difference between right
and wrong
The Durham Rule:
According to the Durham Rule, a criminal defendant
can't be convicted of a crime if the act was the result of
a mental disease or defect the defendant had at the time
of the incident. It has often been referred to as the
"product defect rule," but doesn't require a medical
diagnosis of mental illness or disorder.
For example: drug addicts were able to use the defense
to successfully avoid conviction for crimes related to
their addiction.
Sec. 85, IPC, 1860: Act of a person incapable
of judgment by reason of intoxication caused
against his will.—Nothing is an offence which
is done by a person who, at the time of doing it,
is, by reason of intoxication, incapable of
knowing the nature of the act, or that he is doing
what is either wrong, or contrary to law;
provided that the thing which intoxicated him
was administered to him without his knowledge
or against his will.
By reason of intoxication.

Accused is incapable of knowing the nature of the act;

or

Accused is incapable of knowing that what he is doing

is either wrong, or contrary to law.

The thing which intoxicated him was administered to

him without his knowledge or against his will
(Involuntary Intoxication).
 Bablu v. State of Rajasthan, AIR 2007 SC 697
The Hon’ble Supreme Court stated three propositions as regards the scope and ambit
of Section 85 IPC:
(i) The insanity whether produced by drunkenness or otherwise is a defence to the
crime charged;
(ii) Evidence of drunkenness which renders the accused incapable of forming the
specific intent essential to constitute the crime should be taken into account with the
other facts proved in order to determine whether or not he had this intent; and
(iii) The evidence of drunkenness falling short of a proved incapacity in the accused
to form the intent necessary to constitute the crime and merely establishing that his
mind is affected by drink so that he more readily give to some violent passion, does
not rebut the presumption that a man intends the natural consequences of his acts.
Sec. 86, IPC, 1860: Offence requiring a particular
intent or knowledge committed by one who is
intoxicated.—In cases where an act done is not an
offence unless done with a particular knowledge or
intent, a person who does the act in a state of
intoxication shall be liable to be dealt with as if he had
the same knowledge as he would have had if he had not
been intoxicated, unless the thing which intoxicated him
was administered to him without his knowledge or
against his will.
In voluntary drunkenness the knowledge is to be
presumed in the same manner as if there was no
drunkenness.
In Gautam Bhila Ahire v. State of
Maharashtra, 2010 Cr. LJ 4073
(Bom) it was observed that the
husband beats his wife and had
thrown burning lamp on her
under the influence of liquor.
Since he consumed the liquor
himself he is not entitled to claim
benefit under this Section.
Walking to the house of witness at a distant place and concealing
the weapon used in crime and wearing apparels shows that the
accused was conscious and capable of understanding the nature
of his act. No evidence as regards the degree of intoxication is
needed to reach at the conclusion that the accused was under the
control of his senses (Shankar Jaiswara v. State of West Bengal,
(2007) 9 SCC 360).
Sec. 87, IPC, 1860: Act not intended and not known to
be likely to cause death or grievous hurt, done by
consent.—Nothing which is not intended to cause death,
or grievous hurt, and which is not known by the doer to be
likely to cause death or grievous hurt, is an offence by
reason of any harm which it may cause, or be intended by
the doer to cause, to any person, above 18 years of age,
who has given consent, whether express or implied, to
suffer that harm; or by reason of any harm which it may be
known by the doer to be likely to cause to any such person
who has consented to take the risk of that harm.
 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; and if A, while
playing fairly, hurts Z, A commits no
offence.
Sec. 88, IPC, 1860: Act not intended to cause
death, done by consent in good faith for
person's benefit.—Nothing, which is not
intended to cause death, is an offence by reason
of any harm which it may cause, or be intended by
the doer to cause, or be known by the doer to be
likely to cause, to any person for whose benefit it is
done in good faith, and who has given a consent,
whether express or implied, to suffer that harm, or
to take the risk of that harm.
 Illustration
A, a surgeon, knowing that a particular
operation is likely to cause the death of Z,
who suffers under the painful complaint,
but not intending to cause Z's death, and
intending, in good faith, Z's benefit,
performs that operation on Z, with Z's
consent. A has committed no offence.
Sec. 89, IPC, 1860: Act done in good faith for benefit of
child or insane person, by or by consent of guardian:
Nothing which is done in good faith for the benefit of a person
under twelve years of age, or of unsound mind, by or by
consent, either express or implied, of the guardian or other
person having lawful charge of that person, is an offence by
reason of any harm which it may cause, or be intended by the
doer to cause or be known by the doer to be likely to cause to
that person: Provided—
Provisos:
First.—That this exception shall not extend to the intentional
causing of death, or to the attempting to cause death;
Secondly.—That this exception shall not extend to the doing of
anything which the person doing it knows to be likely to cause
death, for any purpose other than the preventing of death or
grievous hurt, or the curing of any grievous disease or
infirmity;
Thirdly.—That this exception shall not extend to the voluntary
causing of grievous hurt, or to the attempting to cause grievous
hurt, unless it be for the purpose of preventing death or
grievous hurt, or the curing of any grievous disease or
infirmity;
Fourthly.—That this exception shall not extend to the abetment
of any offence, to the committing of which offence it would not
extend.
 Illustration
A, in good faith, for his child's benefit without
his child's consent, has his child cut for the
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 cure of the child.
Sec. 90, IPC, 1860: Consent known to be given under fear or
misconception.—A consent is not such a consent as is intended by
any section of this Code, if the consent is given by a person under
fear of injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
Consent of insane person.—if the consent is given by a person
who, from unsoundness of mind, or intoxication, is unable to
understand the nature and consequence of that to which he gives his
consent; or
Consent of child.—unless the contrary appears from the context, if
the consent is given by a person who is under twelve years of age.
Sec. 91, IPC, 1860: Exclusion of acts which are offences
independently of harm cause: The exceptions enumerated in
sections 87, 88 and 89 of this Code do not extend to acts which are
offences independently of any harm which they may cause, or be
intended to cause, or be known to be likely to cause, to the person
giving the consent, or on whose behalf the consent is given.
Illustration
Causing miscarriage (unless caused in good faith for the purpose of
saving the life of the woman) is 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 of her guardian to the causing of such miscarriage does not
justify the act.
Sec. 92 Act done in good faith for benefit of a
person without consent.—Nothing is an offence by
reason of any harm which it may cause to a person
for whose benefit it is done in good faith, even
without that person's consent, if the circumstances
are such that it is impossible for that person to
signify consent, or if that person is incapable of
giving consent, and has no guardian or other person
in lawful charge of him from whom it is possible to
obtain consent in time for the thing to be done with
benefit:
Provided—
Provisos:
First.—That this exception shall not extend to the intentional causing of
death, or the attempting to cause death;
Secondly.—That this exception shall not extend to the doing of anything
which the person doing it knows to be likely to cause death, for any purpose
other than the preventing of death or grievous hurt, or the curing of any
grievous disease or infirmity;
Thirdly.—That this exception shall not extend to the voluntary causing of
hurt, or to the attempting to cause hurt, for any purpose other than the
preventing of death or hurt;
Fourthly.—That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend.
 Illustration
A, a surgeon, sees a child suffer an accident which is
likely to prove fatal unless an operation be immediately
performed. There is not time to apply to the child's
guardian. A performs the operation in spite of the
entreaties of the child, intending, in good faith, the child's
benefit. A has committed no offence.
Explanation.— Mere pecuniary benefit is not benefit
within the meaning of sections 88, 89 and 92.
Sec. 93, IPC, 1860: Communication made in good faith.—No
communication made in good faith is an offence by reason of
any harm to the person to whom it is made, if it is made for the
benefit of that person.
Illustration
A, a surgeon, in good faith, communicates to a patient his
opinion that he cannot live. The patient dies in 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.
Harm = An injurious reaction (Veeda Menezes v. Yusuf Khan,
AIR 1966 SC 1773).
Sec. 94, IPC, 1860: Act to which a person is compelled by threats.
—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 became subject to such
constraint.
* Doctrine of Compulsion and Necessity
No one has the right to commit a mischief on mankind in
consequence of fear to himself.
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 a gang of dacoits, and
forced, by 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 for the dacoits to
enter and plunder it, is entitled to the benefit of this
exception.
Sec. 95, IPC, 1860: Act causing slight harm.— Nothing is an offence
by reason that it causes, or that it is intended to cause, or that it is
known to be likely to cause, any harm, if that harm is so slight that no
person of ordinary sense and temper would complain of such harm.
Principles of Trifles or Trivialities.
De minimis, non curat lex = Law takes no account of trivialities.
Taking the pods from a tree standing on the government waste land
which were almost of no value. (Defence given). {Kasyabin Ravji,
(1865)}
The accused caused the deceased to fall down and the co-accused
threw down a heavy stone on the head of deceased. (The defence of
Sec. 95 was not given) {Athai v. State of Madya Pradesh, 2010 Cr. LJ
995 (MP)}.