Indian Penal Code

Strictly for Internal Circulation - KCL
GENERAL EXCEPTIONS (Ss. 76-106)

1. MISTAKE OF FACT (Ss. 76 & 79)
1.
Act done by a person who is bound, or by mistake of fact believes himself bound, bylaw (S. 76)
Mistake of fact is sometimes a good defence. But, it must be a mistake of fact, and not of law. S. 76,
therefore, lays down that nothing is an offence which is done by a person who owing to mistake of fact, and
not a mistake of law, in good faith, believes himself to be bound by law to do that act.
Illus.- (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 the Court to arrest Y, and after due enquiry,
believing Z to be Y, arrests Z. A has committed no offence: S. 76.
In Emp. v. Gopalia, (1924) 26 Bom. l.R. 138, a police officer after reasonable inquiries and on wellfounded suspicion, arrested the complainant under a warrant. It appeared that he had arrested the wrong
person. The Court held that the officer was not liable to be prosecuted for wrongful confinement, as his case
fell within S. 76.
MISTAKE OF LAW.- It is to be remembered that mistake of law is no defence, but mistake of fact is.
Everybody is bound to know the law of the land, and ignorance of the law is no excuse. This is based on the
assumption that if a person exercises due care and diligence (e.g., by consulting a lawyer), he would know
the law.
Mere forgetfulness is, however, not a mistake. A mistake is a slip made by mischance, and not by
design. Even under English common law, an honest and reasonable belief in the existence of circumstances
which would have made that act an innocent act, has always been a valid defence.
Mistake of fact distinguished from mistake of law - (1) Mistake of fact is a good defence to a
crime. Mistake of law is no defence. (2) In civil law, mistake of fact is not an excuse; there is a strict civil
liability for mistake of fact. In criminal law, absolute criminal responsibility for a mistake of fact is
exceptional.
WHEN MISTAKE OF FACT IS NO DEFENCE.- Though mistake of fact is a defence, it is to be
noted that it is no defence if the fact itself is illegal. One cannot do an illegal act and then plead ignorance of a
fact. Thus, a person cannot by mistake of fact, shoot X and then plead in defence that he did not intend to kill
X at all, but had mistaken him for Y whom he wanted to eliminate from this world. The plea of mistake of fact
cannot apply in such a case, because killing a person is itself illegal, and cannot be pleaded as a defence.
(This topic has been discussed fully in an earlier Chapter on Jurisprudence.)
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LIABILITY OF A SOLDIER UNDER THE I.PC. - In the case of a soldier, the I.PC. does not
recognize the mere duty of blind obedience to the commands of a superior officer as sufficient to protect him
from the penal consequences of his act. The law requires that he should exercise his own judgment, and he
cannot escape the penal consequences of his own act, if he does not believe in good faith that he is bound by
law to do it.
In Shew Mongal Singh v. State (1981 Cri. L.J. 84), where a policeman had fired as ordered by his
superior authority, and death of two persons ensued, the Calcutta High Court held that having regard to the
circumstances of the case, the policeman was not guilty. It was observed that the police force plays a vital
role in the maintenance of law and order in any State. Like the armed forces, the police force is a disciplined
force; and if discipline is not maintained, the force disintegrates. Acting in strict accordance with the order of
a superior is indeed a part of discipline. In the course of the judgment, the Court observed as follows:
If an order to fire is given, and there are casualties, can the policeman who opened fire be
prosecuted for a criminal offence? If the order is not necessary and on the face of it illegal, such as an order to
shoot an innocent passer-by or to torture a person, the policeman carrying out the order is certainly entitled to
protection under the law.
RESPONDEAT SUPERIOR.- This expression means act done by the order of a superior. In
criminal law, the maxim respondent superior does not apply. The order of a superior to an inferior servant to
commit an offence is not a valid defence. Nothing but fear of instant death is a good defence for a policeman
who tortures any person by the order of a superior. The maxim respondent superior has no application in
such a case: Lalit Khan (1825) 20 Bom. 364.
So also, where under order of their naik, three sepoys of a regiment fired a shot at a mob which,
otherwise, was by no means violent, it was held that they were guilty of culpable homicide not amounting to
murder, and that they were not bound to obey an illegal order : Gurdit Singh, (1812) PR. 16.
A more extreme case on the point is the case of the soldier who commanded the guards at the
execution of Charles I. His plea was that all he did was as a soldier under the command of his superior officer,
whom he had to obey or die. It was held that this was no excuse, for his superior was a traitor, and all who
obeyed him were equally traitors.
The Courts have laid down that whenever justification of a mistake of a fact is pleaded, the following
five guiding principles are to be applied, viz.I.
When act is in itself plainly criminal, but is more severely punishable if certain circumstances exist,
then ignorance of those circumstances is no answer to a charge for the aggravated offence.
II.
(ii) If, however, an act is prima facie innocent, but is an offence if certain circumstances exist, then
ignorance of those circumstances is a good defence to the charge.
III. (iii) If the act itself is wrong, and becomes criminal under certain circumstances, the person who
commits such a wrongful act cannot argue that he was ignorant of the facts which turned the wrong into a
crime.
IV. (iv) The state of the defendant's mind must amount to absolute ignorance of the existence of the
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circumstances which alter the character of the act

V.
(v) If a statute makes it penal to do an act under certain circumstances, it is a question to be decided
upon the wording and object of that statute, whether or not the responsibility of ascertaining that the
circumstances exist is upon the person who does that act
2.
Act done by a person justified, or by mistake of fact believing himself justified, by law (5. 79)
Another case in which a person under a mistake of fact can be excused is to be found in S. 79, which lays
down 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.
Illus. - A sees Z commit what appears to be murder. He in good faith seizes Z to hand him over to the
police. A has committed no offence, though it may turn out that Z was acting in self-defence: S. 79.
Se 76 AND 79 DISTINGUISHED.- The distinction between S. 76 and S. 79, is that in the former, a
person is assumed to be bound and in the latter to be justified, by law. In other words, the distinction is
between a real or supposed legal obligation and a real or supposed legal justification in doing the particular
act Under both the sections, there is a bona fide intention to advance the law.
ACT OF STATE.- Closely connected with the principle underlying S. 79 is the principle of an 'act of
State'. An act of State is an act injurious to the person or property of someone who is not at the time of that act
a subject of the Government, which act is done by any representative of Government's authority, civil or
military, and is either previously sanctioned or subsequently ratified by the Government.
To support a plea of this nature, two points have to be proved viz.
(1) that the defendant had authority to act on behalf of the state in the matter; and
(2) that in so acting, he was professing to act as a matter of policy, outside the law, and not as a matter of
right within the law.
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2. JUDICIAL ACTS (S. 77-78)

The second general exception relates to act of judges and Courts. This is laid down in secs. 77 and 78.
These sections lay down that nothing is an offence which is done(i) by a judge when acting judicially in the exercise of any power which is, or which he in good faith
believes to be, given to him by law: S. 77.
(ii) pursuant to the judgment or order of a Court of Justice, while such judgment 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.
Any act done by a judge while acting judicially is no offence. Thus, a judge who sentences a prisoner
to death (-even wrongly-) is not himself liable to be punished for having caused somebody's death. If it were
otherwise, it would lead to utter chaos.
Similarly, an act done pursuant to the judgment or order of a Court of justice is no offence. If it were
to be an offence the hangman who hangs the prisoner pursuant to the order of the Judge, would also have to
be hanged. This would lead to a vicious circle and would be equally absurd.
3. ACCIDENT (S. 80)

This third exception relates to acts committed by accident. It is laid down in S. 80, which provides that
nothing is an offence which is done by accident or misfortune(a) without criminal intention or knowledge,
(b) in the doing of a lawful act.,
(i) in a lawful manner, (ii) by lawful means, and (iii) with
proper care and caution.
Illus.- 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:S. 80.
ACCIDENT.- It is to be remembered that an accident is not the same thing as an occurrence. The idea
of something fortuitous and unexpected is involved in the word 'accident'. An injury is said to be accidentally
caused whenever it is neither wilfully nor negligently caused.
An effect is said to be accidental when the act by which it is caused is not done with the intention of
causing it. In other words, it is something that happens out of the ordinary course of things.
INGREDIENTS OF S. 80.- In order that an act should be justifiable on the ground of accident, it
must be shown (i) that the act was an accident or misfortune; and (ii) that it was not accompanied by any
criminal intention; but that on the other hand, (iii) it was the outcome of a lawful act, and this lawful act must
have been done, (a) in a lawful manner, (b) by lawful means, and (c) with proper care and caution. All these
ingredients must concur to succeed in proving the defence of accident. Thus, in a garne of cricket, a ball
strikes a man on the head and he dies. Such a death is accidental. So also, A went into a jungle, accompanied
by B, to shoot porcupines. They agreed to take up certain positions to lie in wait for the game. After a while, A
hearing the rustle and believing it was a porcupine, fired in that direction. The shot hit B and caused B's
death. A would not be guilty of any offence. It was a pure accident by which B's death was caused, and A's
action is protected by S. 80.
CASES-Accident.- The accused and the deceased were wrestlers.
They arranged a bout in the course of which the deceased fell and broke his skull. Under the circumstances,
the Court held that this was a case of pure accident. (Tunda, (1950) 51. Cr. L.J. 402)
No Accident. - (i) A takes up a gun, and without examining whether it is loaded or not, points it in
sport at B, and pulls the trigger. B dies. Such a death is not accidental, as there was want of proper care and
caution. If A has reason to believe that the gun was not loaded, the death would have been accidental. It may
be noted that shooting with an unlicensed gun will not debar an accused from claiming the benefit of S.
(Rangaswamy, (1952) Nag. 93)
(ii) A shoots at a bird 'in B's house in order to steal it, and kills B. A is liable, as his act was not lawful.
To steal is not a lawful act.
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4. ABSENCE OF CRIMINAL INTENT (ss. 81-85 & 92-94)

This exception, namely, absence of criminal intent, will be considered under seven sub-heads.
Shortly stated, criminal intention means the purpose or design of doing an act forbidden by criminal law
without just cause or excuse. Now, there are certain acts which appear to be criminal, but are done without
any criminal intent. It is but fair that such acts should not be penalised. They are, therefore, rightly exempted
from the category of 'offences'. Under this head, seven acts are mentioned in Ss. 81 to 86 and 92 to 94. These
are as under:
(a) Act done to avoid other harm : S. 81.
(b) Act of a child,(i) under seven. S. 82.
(ii) above seven and under twelve, but of immature understanding S. 83.
(c) Act of lunatic : S. 84.
(d) Act of an intoxicated person: Ss. 85-86.
(e) Bona fide act for another's benefit : S. 92.
(f) Communication made in good faith : S. 93.
(g) Act done under compulsion or threat : S. 94.
It will be seen that in all these seven acts, a criminal intention (mens rea) is not present. All these
seven acts are discussed below in detail.
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(a) Act done to avoid other harm (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, for the purpose of preventing or avoiding other harm to person -or property
is not an offence.
Illus.- (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 a boat, B,
with 20 or 30 passengers on board, unless he changes the course of his vessel, and that by changing his
course, he must incur risk of running down 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 the boat C, and in good faith for
the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he
may run down the boat C by doing an act which he knew was likely to cause that effect, if it be 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) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does
this with the intention in good faith of saving human life or property. Here, if it be 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: S. 81.
In the above illustration, A's object in pulling down houses is to prevent the conflagration from
spreading. His good faith and want of criminal intention are apparent. He has done so for 'preventing or
avoiding other harm to persons or property'. A has, therefore, not committed any offence, his case having
fallen within the exception laid down in S. 81.
HARM MUST SE WITHOUT CRIMINAL INTENTION.-It is to be remembered that S. 81 will afford

protection, only where harm is caused without any criminal intention. A man, therefore, cannot intentionally
commit a crime in order to avoid other greater harm. In Emp. v. Dhania Daji (1868 ? S.H.C. 59) the accused
placed poison in his toddy pots knowing that if taken by a human being, it would cause injury, and with the
intention of thereby detecting an unknown thief who was in the habit of stealing the toddy from his pots. The
toddy was drunk by, and caused injury to, some soldiers who purchased it from an unknown vendor. It was
held that the accused was guilty under Sec. 328 (causing hurt by means of poison), and that Sec. 81 was no
defence.
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PRINCIPLE OF S. 81.- The principle upon which S. 81 is based is that when on a sudden and extreme
emergency, one or the other of two evils is inevitable, it is lawful so to direct events so that the smaller evil
only shall occur.
DOCTRINE OF SELF-PRESERVATION.-It may be noted that a person dying of starvation cannot

commit theft of food, and plead that he did so to avoid another harm, viz., his own death, because he
intentionally committed the offence of theft, and under S. 81, the act should have been done without any
criminal intention. A person who steals bread cannot exempt himself (under S. 81) from liability on the plea
that although he took bread, thereby injuring the baker, he took it for the purpose of avoiding other harm, e.g.
starvation to himself and his family. As he intends to take and does take unlawful means, causing thereby
wrongful gain to himself and wrongful loss to the baker, he is guilty of theft. His case is excluded from the
protection afforded by sec. 81 by reason of the criminal intention.
The leading English case on the subject is an old case, Dudley & Stephens [(1884) 14 Q.B.O. 173],
where it was held that a man who, in order to save his life from starvation, kills another for the purpose of
feeding on his flesh, is guilty of murder, although at the time of the act, he is in such circumstances that there
is no other chance of preserving his life. In that case, three shipwrecked sailors in a boat were without food
for several days, and two .of them killed the third, a boy, and fed on his flesh, under such circumstances that
there appeared to the accused every probability that unless they, then or very soon, fed upon the boy or one of
themselves, they would die of starvation. The Court held in the circumstances, that they were guilty of
murder.
In delivering the judgment, Lord Coleridge, C.J. Liggested that if the law appeared to be too severe,
it was open to the Sovereign to exercise its prerogative of mercy. Accordingly, the Queen was pleased to
commute the sentence to six months' imprisonment, in exercise of her royal prerogative.
(b) Act of child (5s. 82-83)
In criminal law, children are given protection, under certain circumstances, for acts committed by
them. The protection is afforded by Ss. 82 and 83 which can be analysed thusAn act of a child(i) under seven years is no offence: S. 82. (ii) above seven and under twelve years,
who has not attained sufficient maturity of understanding to judge the nature and consequences of his
conduct, is also no offence : S. 83.
LEGAL PRESUMPTION AS TO CAPACITY OF INFANTS.- It will be seen from S. 82 that under the age
of seven years, no infant can be guilty of a crime. For, under that age, an infant is, by presumption of law, doli
incapax, i.e. not endowed with any discretion so as to distinguish right from wrong. If the accused is shown
to be child under seven, the proof of the fact would, ipso facto, be an answer to the prosecution.
It is to be noted that the immunity of children under seven years of age from criminal liability is not
confined to offences under Code only, but extends to offences under any special or local law.
The immunity of a child from criminal liability can be analysed in a tabular form thus:
CHILD
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Under 7 years
(not liable)
Between 7 and 12 years
Of mature intellect : (liable)
Over 12 years (liable)
Of immature intellect (not liable)
Thus, a child cannot commit crime(i) if he is below 7 years of age : S. 82;

(ii) if he is above 7 and below 12, but too weak in intellect to judge what is right or wrong : S. 83.
Example:
A child of 9 years of age stole a gold necklace, and sold it to B for half a rupee only. Evidence at the
trial indicated that the child had attained sufficient maturity of understanding to judge the nature and
consequences of his conduct. Here, the child would be guilty of theft, if it is proved that he had attained
sufficient maturity of understanding to judge the consequences of his act, while B would be guilty of
receiving stolen property, knowing it to be stolen.
'MALITIA SUPPLET OETATEM'.- The wording of S. 83 shows that if it is. shown that a child under 12 and
above 7 had attained sufficient maturity of understanding to judge the nature of his conduct, he will be liable.
The circumstances of a case may disclose such a degree of malice as to justify the maxim malitia supplet
oetatem [malice supplies defect of years]. It is to be noted that this maxim applies to cases falling under S. 83
only.
(c) Act of an insane person (S. 84)
Criminal law gives complete protection to an insane person. This is the third case of a person devoid
of criminal intention or any intention at all. S. 84 deals with the liability of an insane person for acts or
offences committed by him. It provides that nothing is an offence which is done by a person, who owing to
unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is wrong or
contrary to law.
TEST OF INSANITY IN LAW.- The policy of the law is to control not only the sane, but so far as is
possible, also the insane. It is not, therefore, every person mentally diseased who is ipso facto, exempted
from criminal responsibility. Such exemption is allowed only where the insane person is incapable of
knowing the nature of the act or that what he is doing is either wrong or contrary to law. This section lays
down the legal test of responsibility in cases of alleged unsoundness of mind. It is by this test, as
distinguished from the medical test, that the criminality of an act is to be determined : Lakshman v. Dagdu,
(1886) 10 Bom. 515; Naga Kan Hla, (1914) 2 U. B. R. 28.
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INSANE DELUSION.- Akin to lunacy, is what is known as insane delusion, which is a borderline case. The
legal position as to partial delusion is as follows:
.
McNaughten's Case
The legal doctrine in regard to criminal insanity was for the first time settled in England in this case.
The facts of the case are as follows:
For many years, Mr. McNaughten suffered from what is known to doctors as persecution mania.
He thought a gang of persons followed him about and slandered him and prevented him from getting a job.
One day, at the Charing Cross railway station, he shot one Mr. Drummond, thinking him to be Sir Robert
Peel, the Prime Minister of England, who, he thought, was responsible for all his misfortunes. The witnesses
who were examined stated that the prisoner, at the time of the act, was impelled by an uncontrollable
impulse, while others stated that he was insane. The Solicitor General, in summing up the case before the
jury, said, The object of the Crown is to ascertain whether at the time the prisoner committed the crime, he
was to be regarded as a responsible agent or whether all control of himself was taken away. The jury
acquitted the prisoner on the ground of insanity.
(d) Act of an intoxicated person (85. 85-86)
EFFECT OF INTOXICATION.-Whereas lunacy is a disease and, is therefore to be pitied, drunkenness is
a vice and is therefore to be condemned. Drunkenness is a species of madness for which the man is to blame.
The law provides that deprivation of a sense of judgment and human feeling which in a sober state would
have prevented the accused from offending, shall not, when produced by his voluntary act, screen him from
punishment, although he may be no longer capable of self-restraint. Qui pecat ebrius luat sobrius: Let him
who sins when drunk be punished when sober. If a man chooses to get drunk, it is his own voluntary act; it is
very different from madness which is not caused by any act of the person. That voluntary species of madness
which it is a party's power to abstain from, he must answer for.
Now, so far as intoxicated persons are concerned, Ss. 85 and 86 are relevant. S. 85 lays down that
nothing is an offence which is done by a person who, owing to intoxication, is incapable of knowing the
nature of the act, or that what he is doing is wrong or contrary to law, provided that the thing which
intoxicated him was administered to him without his knowledge or against his will.
TEST OF DRUNKENNESS.- The test to apply in cases of drunkenness is not the test applied in cases of
insanity, viz., whether the accused person knew what he was doing was wrong or was able to appreciate the
nature and quality of his act. The correct test is whether by reason of drunkenness, the accused was incapable
of forming an intention of committing the offence. (Samman Singh, (1943) Lah. 39)
S. 86 states the presumption for certain offences committed by intoxicated persons. Thus, if an act is
an offence only when done with a particular intention or knowledge, and such an act is committed by an
intoxicated person, he will be presumed to have possessed the knowledge requisite for the offence, unless he
can show that he was intoxicated without his knowledge or against his will.
In other words, when intention or knowledge is an ingredient of the offence, a person who is
voluntarily drunk must be considered to have got the same knowledge as lie would have had if he had been
sober.
It is pertinent to note that although the above presumption applies to the knowledge of the accused,
there is no such presumption as regards his intention. The section does not say that the accused is to be dealt
with as if he had the same intention as he would have had if he had not been intoxicated. Thus, S. 86 attributes
to an intoxicated person the knowledge of a sober man, but does not attribute to him the same intention. In
such cases, his intention would have to be gathered by the Court from the facts and circumstances of every
individual case, having due regard to the degree of intoxication.
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In one case, X became very drunk, but knew what he was doing. He went to his house, took hold of a
sword and going along the road shouted his intention to kill Y with whom he had a dispute. Z, a passer-by,
gently tried to pacify X, who thereupon inflicted wounds on Z of which Z died within a few minutes. In the
circumstances, X would be guilty of culpable homicide.
The above is the case of Nga Sein Gale, (1934) 12 Rang. 445, where it was held that X must be
imputed with the same knowledge as he would have had if he had been sober and his act amounted to murder,
for which there was no extenuating circumstances. X got drunk voluntarily, and knew well what he was
doing. His case, therefore, clearly falls under S. 86.
Example
1. A is intoxicated with aicohol. He takes a large knife and is going along the road. B tries to pacify
him, but A declares his intention to kill him, follows him and inflicts injuries on B of which he dies. A is guilty
of murder. He has got drunk voluntarily and under S. 86, he will be liable for his act as if he was sober when
he did it.
2. A, a drunken person, enters another's house believing it to be his own, and beats an inmate of the house to
drive him out, supposing him to be a trespasser. Here, A should be held guilty of both the offences, viz.,
criminal trespass (S. 441) and assault (S. 351 I.PC.).
3. In another case, the accused ravished a girl of thirteen, and in furtherance of the act or rape, placed
his hand on her mouth, thereby causing her death by suffocation. The sole defence of the accused was that he
was drunk. The Court held him guilty of murder, and observed that drunkenness was no defence, unless it
was established that at the time of the rape, the accused was so drunk that he was incapable of forming the
intent to commit it. (Director of Public Prosecutions v. Beard (1920) A.C. 479)
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(e) 'Bona fide' act for another's benefit (S. 92)

The fifth case of an act committed without criminal intent is containe~ in S. 92, which lays down that
nothing is an offence by reason of any harm which it may cause to the person for whose benefit it is done (a)
in good faith, and (b) even without that person's consent,1)
if the circumstances are such that it is impossible for that person to signify consent; or
2)
if that person is incapable of giving consent, and has no guardian from whom consent can be
obtained in time.
There are, however, four cases to which the above defence will not be available, viz. a)
This exception does not extend to the intentional causing of death or the attempting to cause death.
b)
Further, the exception does not extend to doing' anything which the person doing knows to be likely
to cause death, unless it is
1.
for preventing death or grievous hurt, or
2.
for curing any grievous diseases or infirmity.
c)
Likewise, this exception does not also extend to
a.
voluntarily causing hurt, or
b.
attempting to cause hurt,
unless it is for preventing death or hurt.
d)
This exception does not also extend to the abetment of any offence, to the committing of which it
would not extend.
Illus.- (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 ball (i.e. bullet) gives Z a mortal wound. A has
committed no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal, unless an operation be
immediately performed. There is no 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.
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(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child
from the housetop knowing it to be likely that the fall may kill the child, but not intending to kill the child,
and intending, in good faith, the child's benefit. Here, even if the child is killed by the fall, A has committed
no offence: S. 92.
PRINCIPLE UNDERLYING THESE ILLUSTRATIONS.- In the above illustrations, there is what may
be called a temporary guardianship justified by the exigencies of the case and by the humanity of the motive.
The law extends to acts done in the exercise of this temporary guardianship, a protection very similar
to that given to acts of regular guardians.
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(f) Communication made in good faith (S. 93)

Any communication made in good faith to a person is no offence, even though such communication
may cause harm to the person to whom it is made, if it is for such person;s benefit : S. 93.
Illus. - A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The
patient dies in consequence of that shock. A has committed no offence, though he knew it to be likely that the
communication might cause the patient's death.
(Note. - The above illustration seems to presume that the communication was made for the benefit of
the patient. If this was not so, the protection of S. 93 would not be available.)
It will be seen that, under this section, communication must be
(i) made in good faith, and
(ii) for the benefit of the person to whom it is made.
Thus, S. 93 protects the innocent, without unduly cloaking the guilty.
(g) Act done under compulsion or threat (S. 94)
S. 94 can be put in an analytical form thus Except(i) murder, and
(ii) offences against the State punishable with death,
nothing is an offence, which is done by a person compelled to do 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 doer did (i) of his own accord place himself under
not
or
such constraint.
(ii) from a reasonable
apprehension of harm
to himself short of
instant death
Explanation 1.- A person who of his own accord, or by reason to a threat of being beaten, joins a gang
of dacoits, knowing their character, is not entitled to the benefit of the exception.
Explanation 2.- A person seized by a gang of dacoits and forced by threat of instant death to do a
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thing which is an offence by law, for example, a smith compelled to take his tools and to force open the door
of a house for the dacoits to enter and plunder it, is entitled to the benefit of the exception : S. 94.
.
5. ACT DONE BY CONSENT (Ss. 87-91)
Ss. 87 to 91 lay down the law as to how far an act done by consent will be excused in law.
Consent (S. 90)
Consent is defined in S. 90, which runs in negative terms. It lays down as to what is not consent, and
can be analysed as under:
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A consent intended
(a) a person underby the Codes not
such consent, if it
is given bythe consent was given in
consequence of such fear or
misconception; or
(b) 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
(c) a person under 12 years of age : S. 90.
fear of injury or misconception

of fact, and the person
doing the act knows, (or
has reason to believe) that
MEANING OF CONSENT- S. 90 lays down what is not consent. Jurists have defined consent as an act of
reason accompanied with deliberation, the mind weighing as in balance in good and evil on each side. In an
old but well-known case on the point, Emp. v. Poonai Fattemah, (1896) 12 w.R. (Cr.) 7, the accused, who
professed to be a snake-charmer, persuaded the deceased to allow themselves to be bitten by a poisonous
snake, inducing them to believe that he had power to protect them from harm. It was held that the consent
given by the deceased in allowing themselves to be bitten did not protect the accused. Such consent was
given on a misconception of facts, that is, in the belief that the accused had the power to cure snake-bites, and
the accused knew that the consent was given in consequence of such misconception. The accused was,
therefore, convicted of culpable homicide not amounting to murder.
It is also to be remembered that consent and submission are not the same thing. Every consent
involves a submission, but it does not follow that a mere submission amounts to consent. Thus, mere
submission by a person who does not know the nature of an act is not consent.
A consent given on a misrepresentation of fact is one given under a misconception of facts within the
meaning of S. 90, and would not be a valid consent as contemplated by the Penal Code. (Parshottam
Mahadev, 64 Bombay Law Reporter, 788)
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IMPORTANCE OF CONSENT.- It is to be remembered that consent plays a very important part in

criminal law. Its presence or absence often makes a difference between innocence and crime. Thus, for
example, an act of sexual intercourse with a girl over 16, with her consent, is no offence. Without such
consent, the offence is that of rape, which is a very serious offence.
Ss. 8791.- Ss. 87 to 91 lay down that if certain acts are done with the consent of the victim, they will
not amount to offences. These sections can be summarised as follows:
1. An act not intended or known to be likely to cause death or grievous hurt, which act causes any
harm to a person above 18 years of age who has given (express or implied) consent to suffer it is not an
offence: S. 87.
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Illus.- 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: S. 87.
PRINCIPLE OF S. 87.- This section covers injuries which may result whilst engaging in games and sports.
It proceeds upon the maxim 'Volenti non fit injuria': he who consents, cannot complain. This rule is founded
upon two simple propositions, viz.- (1) that every person is the best judge of his own interest; and (2) that no
man will consent to what he thinks is harmful to himself.
SCOPE.- It is to be remembered that the section does not permit a man to give his consent to anything likely
to cause his own death or grievous hurt. It only justifies any harm short of grievous hurt. In Shive Kin, (1915)
16 Cr. L.J. 581, A claimed to be proof against edged instruments and invited B to put his claim to test. B
thereupon cut A on the arm inflicting a wound as a result of which A bled to death. It was held that A's consent
was given under a misconception of fact, but that B could not be supposed to be aware of his mistake. B had
no intention of causing death or grievous hurt, and was therefore entitled to the benefit of S. 87.
A prize-fight is illegal, and all persons aiding and abetting it are guilty.
But mere presence at a prize fight is not an offence.
2. An act is not an offence if it is not intended or known to be likely to cause death, which causes any
harm to a person for whose benefit it is done in good faith with his (express or implied) consent to suffer it :
S.88.
Illus.- A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers
under a 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: S. 88.
SCOPE.- This section protects surgeons and surgical operations as also reasonable acts of teachers. In State
v. Ghatge (1949) 51 Bom. L.R. 103, the facts were as under:
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it is done in good faith by his guardian, or by consent (express or implied) of his guardian is not an
offence: Provided the act is not(i) the intentional causing of or attempting or abetting to cause death; or
(ii) any thing known 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; or
(iii) voluntarily causing or attempting or abetting to cause grievous hurt for any purpose other than
the-ray (a) prevention of death or grievous hurt, or (b) curing of any grievous disease or infirmity.
Illus.-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: S. 89.
It is also clarified (by S. 92) that mere pecuniary benefits are not covered by the term benefit
appearing in Ss. 88 and 89 above.
Lastly, S. 91 enacts a corollary to Ss. 87, 88 and 89. It lays down that the exceptions contained in
Sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may
cause to the person giving the consent : S. 91.
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Illus.-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 of her guardian to
the causing of such miscarriage does not justify the act : S. 91.
6. TRIFLING ACTS (S. 95)
The sixth general exception lays down the laws as to trifling acts. S. 95 deals with commission of
trifling acts and runs thus: "Nothing is an offence by reason that (i) it causes, 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.
DE MINIMIS NON CURAT LEX.- There are several acts of human beings which, if strictly viewed, might
amount to an offence. Suppose two strangers are dining on the same table or travelling in the same
compartment of a train. Suppose further that one of them picks up a wafer from the plate of the other, or lights
his own cigar from a match-box belonging to the other without the other's permission. Strictly speaking,
these are cases of theft, but no person of ordinary sense and temper would complain of it.
S. 95 is based on the maxim De minimis non curat lex. The law does not take account of trifles. It
deals with those cases which come within the letter of the penal law, but not within its spirit. Thus, dipping a
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pen in another man's ink-pot would, in the eyes of law, be theft, but the same would not be punished as an
offence, the act being extremely trifling.
7. RIGHT OF PRIVATE DEFENCE (8s. 96-106)
The important law relating to the right of private defense is laid down in Ss. 96 to 106 of the Code.
NATURE OF RIGHT OF PRIVATE DEFENCE.-Every person has a right to defend his own person
against injury or restraint, and his own property against any act which is an offence falling under the
definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit such an offence.
And what he may do for himself he may do for anyone else under similar circumstances. This right is not
dependent on the actual criminality of the person resisted; it depends solely on the wrongful or apparently
wrongful, character of the act attempted. If the apprehension is real and reasonable, it makes no difference
that it is mistaken. It is lawful to kill a lunatic who attacks a man, though the lunatic himself is not punishable
for his act.
S. 96, therefore, declares that nothing is an offence which is done in the exercise of the right of
private defence.
If in the exercise of the right of private defence against an assault which reasonably causes the
apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk
of harm to innocent person, his right of private defence extends to the running of the risk: S. 106.
Illus.- A is attacked by a mob who attempts to murder him. He cannot effectually exercise his right of
private defence without firing on the mob, and he cannot 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.
The right of private defence is the right to protect one's own person and property against the unlawful
aggression of others. It is a right inherent in man, and is based on the cardinal principal that it is the first duty
of man to help himself.
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In connection with the right of private defence, the following four general points may be noted :
1. There is no right of private defence under the Code against any act which is not in itself an offence
under the Code. An act done in 11 exercise of the right of private defence is not an offence and does not,
therefore, give rise to any right of private defence in return : Gouri v. Sheikh, (1917) 18 Crl. L.J. 864. Thus - A
attacks Z with a knife. Z in self-defence pulls out a revolver. This is not an offence on the part of Z. A cannot
say, Z was about to shoot me, so I killed him. It will be seen in this case that if, A had not started the trouble,
nothing would have happened.
The Supreme Court also has affirmed that the right of private defence is not available to the initial
aggressors. (Oilbagh Singh v. State of U.P. (1980) 4 S. C. 402)
2. The right of private defence cannot be pleaded by persons who, believing they will be attacked,
court the attack.
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3. The general rule is that the accused must specifically plead the right of private defence. Even if he
does not so plead, but if the evidence shows that he did, in fact, act under self-defence, the Court is bound to
consider it. As the Supreme Court has observed, It is well-settled that even if an accused does not plead selfdefence, it is open to the Court to consider such a plea if the same arises from material on record.
In Gangadas v. State of Rajasthan (1975 Crl. L.J. 1445), the Rajasthan High Court has observed that
the omission to take the plea, of private defence in the committing Court is not a bar to taking such a plea at
the trial, or even in appeal.
4. Where a party of men are determined to vindicate their right (or supposed right) by unlawful force,
and they engage in a fight with another party of men, equally determined to vindicate they right (or supposed
right) by unlawful force, no question of the right or private defence can arise. (Basan Bhowmick v. State,
A.I.A. 1963 Cal. 3)
The right of private defence is either of body or of property. Each of these is considered separately
below.
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(A) - RIGHT OF PRIVATE DEFENCE OF THE BODY
(SS. 97-102, 104 & 108)
1. Right of private defence of body

(a) Every person has a right to defend his own body or that of another, against any offence affecting
the human body : S. 97.
ENGLISH LAW. - This section is much wider than the corresponding provision under English law. Under
Indian law, even a stranger may defend the person or property of another person, whereas under the English
law, there must be some kind of existing relationship, such as that of master and servant, or husband and
wife, or guardian and ward, before the right can be exercised for or on behalf of another.
(b) Every person has the right of private defence of the body against an act, which would otherwise
be a certain offence, but is not that offence by reason of the doer being of unsound mind, a minor, an
intoxicated person or a person acting under misconception of fact : S. 98.
Illus. - (i) Z, under the influence of madness, attempts to kill A. Z is guilty of no offence. But A has the
same right of private defence which he would have if Z were sane.
(ii) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a
house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has
the same right of private defence against Z, which he would have if Z were not acting under this
misconception : S. 98.
SCOPE.- This section lays down, that for the purpose of exercising the right of private defence, the
physical or mental capacity of the person against whom the right is exercised is no bar. In other words, the
right of defence of the body exists against all attackers - whether with or without 'mens rea'.
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2. Acts against which there is no right of private defence of body (S. 99)
There are two acts stated in S. 99 against which the right of private defence of the body cannot be
exercised.
(a) Public servant (S. 99)
There is no right of private defence of the body against an act which does not reasonably cause the
apprehension of death or of grievous hurt if done, or attempted to be done by (or by the direction of) a public
servant acting in good faith under colour of his office, though that act (or direction) may not be strictly
justifiable by law. S. 99.
A person is not deprived of the right of private defence of the body against an act of a public servant,
unless he knows, or has reason to believe, that the person doing the act is a public servent: S. 89. Expln. 1.
This right of private defence also exists when the act is done by the direction of a public servant,
unless he knows or has reason to believe, that the person doing the act is acting by such direction, or unless
such person states the authority under which he acts, or, if he has authority in writing, unless he produces
such authority, when so demanded: S. 99, Expln. 2.
In other words, the right of private defence of body or property can be exercised against a public
servant only in the following three cases:
(a) When the act of the public servant reasonably causes apprehension of grievous hurt.
(b) When the public servant does not act in good faith under colour of his office.
(c) 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.
(A reference may be made to S. 21 (in Chapter IV) for the definition of the term public servant.)
'PUBLIC SERVANT ACTING IN GOOD FAITH.' -Whether a public servant is acting in good faith in a
given case is always a question of fact. Thus, an officer of the Court who acts under a warrant which has
expired and attaches property cannot be said to have acted in good faith. (Raghubir, (1941) 17 Luck. 311)
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'UNDER COLOUR OF HIS OFFICE.' - In one case, certain custom officials, on a search, found that
goods were smuggled from Yanam into Indian territory. The smugglers in the course of the search, attacked
the officials and caused injuries. They contended that the officials had no power to search, because there was
no notification declaring Yanam to be foreign territory under S. 5 of the Indian Tariff Act. It was held that the
officials had acted in good faith and under colour of their office, and that therefore no right of private defence
was available to the accused. (Public Prosecutor v. Suryanarayana, (1937) M.W.N. 741)
Thus, if a police officer, acting bona fide under colour of his office, arrests a person without
authority, the person so arrested has no right of self-defence against the police officer.
However, if the act of a public servant is ultra vires, the right of private defence may be exercised
against him. The law negatives the right of selfdefence where a public servant acts irregularly in the
,exercise of his powers, but not where he acts outside the scope of his powers.
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(b) Protection of public authorities and extent of right (S. 99)

Secondly, there is no right of private defence of the body in a case in which there is time to have
recourse to the protection of the public authorities : S. 99.
However, this does not mean that a person must run away to have recourse to the protection of public
authorities when he is attacked, instead of protecting himself.
In one case, the accused received information one evening that the complainants were to trespass on
his field the following day, and uproot all the corn. At about three o'clock in the early morning, he was
informed that the complainants were already on his field and were ploughing up the corn. Thereupon, he
proceeded to the field with his friends and they, were met by an attack by complainants. In the fight which
ensued, the leader of the complainants' party was killed. The Court held that complainants being the
aggressors, the accused and his friends had the right of self-defence. The Court observed that the accused
were not bound to act on the information received on the previous evening and seek the protection of public
authorities, as they had no reason to expect an attack on the field at night. (Narsang Pathabhai, (1890) 14
Bom. 441).
S. 99 also lays down the extent to which the right may be exercised. It provides that the right of
private defence of the body does not in any case, extend to inflicting more harm than is necessary to inflict
for the purpose of the defence.
3. When such right extends to the causing of death or any other harm to the offender (S. 100)
There are six acts of aggression, so serious in their nature, that the law gives full authority to the
defender even to cause the death of assailant. These six important cases are enumerated in S. 100 of the
Penal Code and can be summarised as follows:
The right of private defence of the body extends to causing even the death of the offender in cases of:
(i) An assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault.
In this case, if the defender be so situated that he cannot exercise the right without risk of harm to an
innocent person, he may even run that risk : S. 106.
Illus.- A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of
private defence without firing on the mob, and he cannot fire without running the 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 : S.
106.
(ii) An assault, as may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such assault.
(iii) An assault with the intention of committing rape.
(iv) An assault with the intention of gratifying unnatural lust.
(v) An assault with the intention of kidnapping or abducting.
(vi) An assault with the intention of wrongfully confining a person, under circumstances which may
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reasonably cause him to 'apprehend that he will be unable to have recourse to the public authorities for his
release.
4. Right when commences and how long it continues (S. 102)
Section 102 provides that the right of self-defence commences as soon as a reasonable apprehension
of danger of 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.
REASONABLE APPREHENSION.- It is to be noted that the apprehension must be reasonable, and
not fanciful. Thus, X cannot shoot his enemy Y who is at a great distance, even if Y is armed with a sword. The
reason is that, as yet Y has not attacked X, and therefore, it cannot be said that has a present and reasonable
apprehension of being attacked by Y:S sword. Hence, there is no right of private defence, in fact, there is no
attack at all. Or, suppose the threat proceeds from a woman or a child and is addressed to a strong man. In
such a case, there could hardly be a reasonable apprehension. Present and imminent danger should be
present.
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PROBLEM.- A, having armed himself with a ringed thick stick rushed to beat B, but B was not injured. At
that very moment, B who had a spear with him gave a spear blow in the stomach of A and A was brutally
killed. What offence if any, has been committed by B?
Ans.- B has not committed any offence. B has given one blow in order to protect himself, and there
was a reasonable apprehension in his mind that death or grievous hurt will otherwise be caused to him.
CASES IN WHICH THE RIGHT WAS NOT AVAILABLE TO THE ACCUSED.- (i) Emp. v. Gokoo,
(1866) 5 WR. 33- The accused killed a weak old woman found stealing at night. (ii) Emp. v. Durwan (1866)
WR. 73: The accused caught a thief in his house at night and deliberately killed him with a pickaxe to prevent
his escape. (iii) Emp. v. Dhunanjai, (1870) 14 W. R. 68-A : A number of persons apprehending a thief
committing house-breaking strangled him and subjected him to gross maltreatment when he was fully in
their power. In all these cases, the right of private defence was negatived.
So also in Rex. v. Hollaway, (1628) 1 East RC. 327, a parker finding a boy stealing wood in his
master's ground bound him to his horse's tail and beat him. The horse took fright and ran away, and dragged
the boy on the ground till his shoulder was broken whereof he died. The Court held that this amounted to
murder.
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(B)-RIGHT OF PRIVATE DEFENCE OF PROPERTY

(8s. 97, 99, 101, 103-105)
1.
Acts against which right of defence of property can be exercised
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, mischief or criminal trespass: S. 97; and
(b) against the act of a lunatic, a minor, or an intoxicated person, or a person acting under a
misconception of fact : S. 98.
Illus.- A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a housebreaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same
right of private defence against Z, which he would have if Z were not acting under this misconception: S. 98.
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CASE.- A, finding a thief entering into a house in the middle of the night through an entrance in the side wall,
seized him while intruding his body and held him with his face down to the ground to prevent his further
entrance and thereby caused his death by suffocation. At the trial, A pleads the right of private defence. Is this
plea good justification?
The above facts are from the case of Kurrim Bux, (1865) 3 w.R. (Cr.) 12, where it was held that the right
of private defence was a good justification. It is not the intention of the law that the right to defend property is
available only when the thief has already effected entry, for property may be protected by attacking the thief
inside the house as much as by preventing his entry into it A has, therefore, acted legally.
2. Acts against which there is no right of private defence of property (S. 99)
S. 99 then proceeds to lay down the limitation to the right of private defence of property. There are
two acts against which the right of private defence of property cannot be exercised.
(i) There is no right of private defence of property against an act which does not reasonably cause the
apprehension of death or grievous hurt, if done, or attempted to be done, by (or by the direction of) a public
servant acting in good faith under colour of his office, though that act (or direction) may not be strictly
justifiable by law: S. 99.
A person is not deprived of the right of private defence against an act of a public servant, unless he
knows, or has reason to believe, that the person doing the act is a public servant.
Such a right also exists when the act is done by the direction of a public servant, unless he knows, or
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has reason to believe, that the person doing the act is acting by such direction, or unless such person states the
authority under which he acts, or if he has authority in writing, unless he produces such authority, when so
demanded.
(ii) There is also no right of private defence of property in cases in which there is time to have
recourse to the protection of the public authorities.
S. 99 also provides that the right of private defence in no case extends to the inflicting of more than it
is necessary to inflict for the purpose of defence: S. 90 (This rule applies to private defence of the body also,
as seen earlier.)
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3. Right when commences and how long it continues (S. 105)

The right commences when a reasonable apprehension of danger to the property commences: S. 105.
The right continues(a) the offender has effected his retreat with the property; or
(1) Against theft, - tills (b) the assistance of the public authorities is obtained; or
(c) the property has been recovered.
(a) the offender causes (or attempts to cause) to any person death or hurt or wrongful restraint;
(2) Against robbery, - as long as
or
(b) the fear of instant death, or of instant hurt or of instant personaly restraint continues.
(3) Against criminal trespass or mischief,as long as the offender continues in the commission of such
offence.
(4) Against house-breaking by night,- as long as the house-trespass continues : S. 105.
It is to be noted that the right of private defence against housebreaking continues only so long as the
house-trespass continues. Hence, where a person followed a thief and killed him in the open after housetrespass had ceased, it was held that he could not plead the right of private defence. [Balakee Jolahed, (1868)
10 W. R. 9]
Ss. 102 and 105 indicate that the right of private defence of the body or property commences and
continues as long as the danger lasts. The extent to which the exercise of the right will be justified will
depend, not on the actual danger, but on whether there was reasonable apprehension of such danger. There
must be an attempt or threat, and consequent thereon, an apprehension of danger; but it is not an idle threat or
every apprehension of a rash or timid mind, that will justify the exercise of the right. Reasonable grounds for
the apprehension must be proved.
4. The right extends to the causing of death or any other harm to the offender in the following cases
only, viz.,-
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(i) Robbery;
(ii) Ho use-breaking by night;
(iii) Mischief by fire to any building, tent, or vessel, used as human dwelling or as a place for the custody of
property;
(iv) Theft, mischief, or house-trespass, under such circumstances as may reasonably cause an apprehension
that death or grievous hurt will be the consequence, if such right of private defence is not exercised : S. 103.
Subject to the above restrictions, the right of private defence of body or property extends to the causing of
any harm short of death resulting in damage of the standing crop. Then, the deceased and four others,
reached the spot. When the deceased questioned their high handed acts, they started inflicting injuries as a
result of which he died.
Decision: The trial court held that there was no justification to cause the death of Bhim Singh in the
alleged exercise of the right of private defence because the accused could not have had reasonable
apprehension of death or grievous hurt. The High Court observed that the accused were within their rights to
inflict injuries on the complaint partly short of causing death in exercise of the right of private defence of
property.
The Supreme Court observed A conspectus of the facts lead to the inevitable conclusion that the
accused clearly exceeded his right of private defence and caused much more harm then necessary. He
cannot, therefore, claim immunity under the garb of section 97 of the I.P.C. The right of private defence
under section 97, J.P.C. is expressly subject to the restriction contained in section 99. Therefore, it was held
that, we are of the view that Sher Singh, is liable to be punished under section 326 read with section 322,
I.P.C. Accordingly, he is convicted under section 326, I.P.C and sentenced to undergo R.I. for a period of five
years.
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JOINT LIABILITY
The law relating to joint liability or group liability has been elaborately dealt with and covered by
sections 34, 149, 120A and 120B of the Code. The doctrine of combination in crime is, that when two or
more persons unite to accomplish a criminal object, whether through the physical volition of one, or
proceeding severally or collectively, each individual whose win contributed to the wrong doing is in law
responsible for the whole, the same as though performed by himself alone1.
JOINT LIABILITY UNDER SECTION 34, I.P.C.
Section 34, LP.C. says:
34. Acts done by several persons in furtherance of common

intention.When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.
S 34 'Common intention' should not be confused with 'similar intention'; it means 'intention common
to all. To come -within the mischief of this section the following ingredients must be present:
(a)
there must be a common intention to commit a crime;
(b)
such act must be committed in furtherance of the common intention;
(c)
such act must result in the commission of a crime;
(d)
such common intention must be common to two or more persons;
(e)
such persons (more than two or more) must have done the act or must have participated in the
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commission of that act.

Object of the section
Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The
section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the
section is the element of participation in action. The liability of one person for an offence committed by
another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal
act is done in furtherance of a common intention of the persons who join in committing the crime. Direct
proof of common intention is seldom available and, therefore, such intention can only he inferred from the
circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring
home the charge of common intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for
which they are charged with the aid of section 34, be it prearranged or on the spur of the moment; but it must
necessarily be before the commission of the crime. The true contents of the section are that if two or more
persons intentionally do an act jointly, the position in law is just the same as if each of them has done it
individually by himself; Harbans Singh v. State of Haryana, AIR 2005 SC 2989.
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Guiding principles of 'common intention'

In Mahboob Shah v. Emperor, 721 IA 148 (PC): AIR 1945 PC 118 the following principles were laid
down by the court:
(i)
Under section 34 of the Penal Code, essence of liability is to be found in the existence of a common
intention, animating the accused, leading to the doing of a criminal act in furtherance of such intention.
(ii)
To invoke the aid of section 34 successfully, it must be shown that the Criminal act complained
against was done by one of the accused persons in furtherance of the common intention; if this is so then
liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done
by him alone.
(iii)
Common intention within the meaning of section 34 implies a prearranged plan, and to convict the
accused of an offence applying the section it should be proved that the criminal act was done pursuant to the
prearranged plan.
(iv)
It is difficult, if not impossible, to procure direct evidence to prove the intention of an individual, in
most case it has to be inferred from his act or conduct or other relevant circumstances of the case.
(v)
Care must he taken not to confuse same or similar intention with common intention; the partition
which divides their bounds is often very thin; nevertheless, the distinction is real and substantial and if
overlooked will result in miscarriage of justice.
(vi)
The inference of common intention within the meaning of the term under section 34 should never be
reached unless it is a necessary inference deductible from the circumstances of the case.
'Common intention' is a matter of interference
In Jai Bhagwan v. State of Haryana, 1999 Cr U 1634 (SC) it was held that to apply section 34, I.P.C.,
apart from the fact that there should be two or more accused, two factors must be established:
(i)
Common intention, and
(ii)
Participation of the accused in the commission of an offence. If the common intention is proved but
no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves
vicarious liability, but if participation of the accused in crime is proved and common intention is absent,
section 34 cannot be invoked. In every case it is not possible to have direct evidence of common intention. It
has to be inferred from the facts and circumstances of each case.
In furtherance of common intention
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The principle of joint-liability arises out of common intention followed by an act in furtherance of
such common intention. This is clearly illustrated by the well-known case Mahboob Shah v. Emperor, 721
IA 148 (PC): AIR 1945 PC 118, wherein one Allah Dad was shot dead by a bullet from the gun used by one of
the accused who came to rescue their cousin who had been attacked by Allah Dad and shouted for help. The
two accused were armed with guns, and each one of them aimed at two different individuals shot from the
gun of Wali Shah, the latter only received injuries from a bullet shot by Mahboob Shah. (See the case in
detail, infra). Of the three accused, Wali Shah, whose shot killed Allah Dad absconded and could not be
brought to trial, and the other two were prosecuted for murder under section 302 read with section 34,
I.P.C. The Sessions Judge convicted him of the offence and sentenced him to
death. On appeal, their Lordships of the Lahore High Court held that the case fell within the ambit of section
34, and as to their common intention, it was said that common intention to commit the crime which was
eventually committed by Mahboob Shah and Wali Shah came into being when Ghulam Qasim Shah shouted
to his companions to come to his rescue and both of them emerged from behind the bushes and fired from
their respective guns.
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Their Lorciships of the Privy Council however disagreed with the view of the judges of the High
Court. In their opinion there was no evidence of common intention to the evidence that the appellant just
have been acting in concert with Wali Shah pursuance of a concerted plan when he along with him rushed to
the help of Ghulam Qasim . In their view the common intention of both was to rescue Ghulam Qasim and
both of them picked up different individuals to deal with. Evidence is lacking to show that there was any premediation to bring about the murder of Allah Dad. At the most, they can be stated to have similar intention
but similar intention is different from 'common intention' and one should not be confused with the other.
Their Lordships, therefore, set aside the conviction and sentence of the offence of murder imposed
by the High Court.
Common intention should be prior to the occurrence
In Pandurang v. State of Hyderabad, AIR 1955 SC 216: 1955 Cr U 572 their Lordships of the
Supreme Court observed that it is well established that a common intention presupposes prior concert, it
requires a pre-arranged plan because before a person can be vicariously convicted for the criminal act of
another, the act must have been done in furtherance of the common intention of them all. The inference of
common intention should never be reached unless it is a necessary inference deducible from the
circumstances of the case. The incriminating facts must be incompatible with the innocence of the accused
and incapable of explanation on any other reasonable hypothesis.
Participation
Participation is a necessary element or condition precedent to a finding of joint-liability. The
Supreme Court in Kantiah Rainayya Munipally v. State of
Bombay, AIR 1955 SC 287 observed that, it is the essence of the section 34 that the person must be
physically present at the actual commission of the crime. He need not be present in the actual spot, he can, for
instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in
a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the
occurrence and must actually participate in the commission of the offence in some way or the other at the
time the crime is actually committed.
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JOINT-LIABILITY UNDER SECTION 149, I.P.C.

Section 149, J.P.C. provides:
149. Every member of unlawful assembly guilty of offence committed in prosecution of
common object.lf an offence is committed by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of that assembly knew to be likely to be committed
in prosecution of that object, every person who, at the time of the committing of that offence, is a member of
the same assembly, is guilty of that offence.
This section covers such cases in which several members of an unlawful assembly may be held
guilty of an offence if their 'object' is the same though all of them may not have actually participated in doing
of that act.
Essential ingredients
To invoke section 149, I.P.C., the following ingredients must be present:
(a)
There must be an unlawful assembly. What is an unlawful assembly has been explained below;
(b)
There must be five or more persons forming such an unlawful assembly;
(c)
There must be some common object of such an unlawful assembly. Here the word common must
be distinguished from similar; it means common to all and known to the rest of them and also shared by
them.
(d)
There must be a commission of an offence by anyone or more members of such unlawful assembly.
(e)
The commission of such offence by anyone or more members of such unlawful assembly must be in
the prosecution of the common object shared by all and each one of the members of such unlawful assembly;
(f)
The offence committed in prosecution of a common object must be such that each one of the
members of such unlawful assembly knew was likely to be committed in the prosecution of the common
object.
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Unlawful assembly: meaning of

Section 141, I.P.C defines for 'unlawful assembly' in the following words:
141. Unlawful assembly.An assembly of five or more persons is designated an unlawful

assembly, if the common object of the persons composing that assembly is
First.
To overawe by criminal force, or show of criminal force, the Central or any State
Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful
power of such public servant;
Second.
To resist the execution of any law, or of any legal process; or
Third.
To commit any mischief or criminal trespass, or other offence; or
Fourth.
By means of criminal force, or show of criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water
or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed
right; or
Fifth.
By means of criminal force, or show of criminal force, to compel any person to do what he is
not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.An assembly which was not unlawful when it assembled, may subsequently become
an unlawful assembly.
An assembly of five or more than five persons, combined for one or the other purposes indicated in section
141, is declared in law an 'lawful assembly'.
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Section 34 and section 149 distinguished

Though sections 34 and 149, I.P.C. seem to overlap, yet there is a marked difference between the
two.
(a)
Section 34 does not create an offence, it merely lays down a rule of law; section 149 creates a definite
offence and deals with the punishment of that offence alone. Thus being a member of unlawful assembly is
by itself an offence.
(b)
Under section 34 common intention is the decisive test, whereas in section 149 common object of the
members of an unlawful assembly must be established.
(c)
Participation or presence in the criminal act is essential to fix liability under section 34. Membership
(not necessarily presence) is the foundation of the liability under section 149.
(d)
Section 34 requires two or more persons involved in the commission of the offence. Section 149
requires five or more persons of an unlawful assembly in the commission of an offence.
(e)
Section 34 provides for 'common intention' which requires a pre-concerted plan or agreement;
whereas section 149 speaks about 'common object' does not necessarily require any pre-concert.
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CONSPIRACY
A criminal conspiracy is the agreement of two or more persons to do an illegal act or to do a legal act
by illegal means. Sections 120A and 120B, I.P.C deal with criminal conspiracy. While section 120A defines
'criminal conspiracy', section 120B provides punishment for this offence.
Section 120A reads:
120A. Definition of criminal conspiracy.When two or more persons agree to do, or cause to be
done,
(1)
an illegal act, or
(2)
an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such agreement in
pursuance thereof.
Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement or is merely
incidental to that object.
In State (C.B.l./S.I.T.) v. Nalini, (1999) 5 SCC 60 (Rajiv Gandhi murder case) the apex Court held that an
agreement between two or more persons to do an illegal act amounts to criminal conspiracy. The illegal act
may or may not be done in pursuance of the agreement but the very agreement is an offence and is
punishable. Everyone of the conspirator need not have taken active part in the commission of each and every
one of the conspiratorial acts for the offence of conspiracy to be made out. The prosecution need not
necessarily prove what the perpetrators expressly agreed to do and/or caused to be done the illegal act. The
agreement may be proved by necessary implications under section 120B, I.P.C. In the impugned case the
accused were charged and convicted under section 120B read with section 302, I.P.C. by the designated
Court. The accused appealed to the apex Court to set aside the conviction.
Essential ingredients
The ingredients of section 120A, I.P.C are as stated below
(1)
There should be an agreement between two or more persons who are alleged to conspire;
(2)
The agreement should be to do or cause to be done:
(i)
an illegal act', or
(ii)
an act which may not itself be illegal but be done by illegal means.
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Illegal act: Meaning of

The word 'illegal' is defined in section 43 of the Code as 'applicable to everything which is an
offence, or which is prohibited by law, or which furnishes ground for a civil action'; and a person is said to be
'legally bound to do whatever it is illegal in him to omit'.
Reading sections 43 and 120A together it would appear that two or more persons would be guilty of a
criminal conspiracy whenever, they agree to do or cause to be done acts, which are an offence punishable
under the Indian Penal Code or any special or local law, or which are prohibited by law, or which furnish
ground for civil action. Leaving the case of punishable offences or other acts prohibited by law aside, acts
which might furnish ground for a civil action may be either (a) breaches of contract, or (b) wrongs
independent of contract, committed by an individual acting alone or by two or more persons acting in
combination. A wrongful act must necessarily be so in two or more acting in concert.
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In Bimbadhar v. State of Orissa, AIR 1956 SC 469 the apex Court observed that, it is not necessary
that each one of the conspirators should be aware of the acts done by any of conspirators during the course of
the conspiracy. The acts done by any of conspirators in furtherance of the purpose the conspiracy are
relevant as merely indicative of what the object of the conspiracy was. What is relevant is that there should
be one conspiracy to which specific persons were parties and not series or conspiracies, for the liability of
each conspirator has to be fixed in relation to the particular conspiracy entered into by him with the others.
PUNISHMENT FOR 'CRIMINAL CONSPIRACY'
Section 120B punishes for the offence of 'criminal conspiracy' in the following manner:
ATTEMPT
The word 'attempt' clearly conveys with it the idea that if the attempt had succeeded, the offence charged
would have been committed1. In other words, attempt is the direct movement towards the commission of an
offence after preparations has been made. Once an 'act'2 enters into the arena of attempt, criminal liability
begins, because attempt takes the offender very close to the successful completion of the crime and so it is
punishable in law like a completed offence. An attempt, creates alarm which of itself is an injury, and the
moral guilt of the offender is the same as though he had succeeded. An attempt in order to be criminal need
not be the penultimate act. It is sufficient in law, if there is at present an intent coupled with some overt act in
execution thereof.
'ATTEMPT' UNDER THE PENAL CODE
The Indian Penal Code has not defined attempt to commit a crime but has dealt with attempt in four
different ways:
(i)
Firstly, the commission of an offence and the attempt to commit it are dealt with in the same section,
the extent of punishment being the same for both the offence as well as its attempt. These are
(i)
offences against the State, such as, waging or attempting to wage war against the Government of
India (section 121);
(ii)
assaulting or attempting to assault the President of India, Governors of States, etc., with intent to
counsel or restrain the exercise of any lawful power (section 124);
(iii)
sedition (section 124A), waging or attempting to wage war against any Asiatic Power in alliance
with the Government (section 125), public servant taking gratification (section 161), dacoity (section 391),
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etc.;
(ii)
Secondly, attempts to commit offences and commission of specific offences have been dealt with
separately, and separate punishments have been provided for attempt to commit such offences from those of
the offences committed.
For instance, attempt to commit murder, attempt to commit culpable homicide not amounting to murder, and
attempt to commit robbery have been dealt with in sections 307, 308 and 393, I.P.C. whereas murder,
culpable homicide and robbery are punishable under sections 302, 304 and 392, I.P.C. respectively;
(iii)
Thirdly, attempt to commit suicide is made punishable under section 309, I.P.C.; and
(iv)
Fourthly, attempts to commit offences in general (except those falling in the above-stated categories)
have been made punishable under section 511, I.P.C. However, section 511, I.P.C. is not exhaustive. It leaves
unpunished attempts of those minor offences which are punishable with fine only.
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NOTES
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Strictly for Internal Circulation - KCL

GENERAL EXCEPTIONS (Ss. 76-106)

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circumstances which alter the character of the act

2. JUDICIAL ACTS (S. 77-78)

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3. ACCIDENT (S. 80)

4. ABSENCE OF CRIMINAL INTENT (ss. 81-85 & 92-94)

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(a) Act done to avoid other harm (S. 81)

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HARM MUST SE WITHOUT CRIMINAL INTENTION.-It is to be remembered that S. 81 will afford

DOCTRINE OF SELF-PRESERVATION.-It may be noted that a person dying of starvation cannot

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Between 7 and 12 years

Of mature intellect : (liable)

Over 12 years (liable)

Of immature intellect (not liable)

Thus, a child cannot commit crime(i) if he is below 7 years of age : S. 82;

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(e) 'Bona fide' act for another's benefit (S. 92)

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(f) Communication made in good faith (S. 93)

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fear of injury or misconception

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IMPORTANCE OF CONSENT.- It is to be remembered that consent plays a very important part in

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1. Right of private defence of body

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(b) Protection of public authorities and extent of right (S. 99)

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(B)-RIGHT OF PRIVATE DEFENCE OF PROPERTY

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3. Right when commences and how long it continues (S. 105)

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34. Acts done by several persons in furtherance of common

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commission of that act.

Guiding principles of 'common intention'

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JOINT-LIABILITY UNDER SECTION 149, I.P.C.

Unlawful assembly: meaning of

141. Unlawful assembly.An assembly of five or more persons is designated an unlawful

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Section 34 and section 149 distinguished

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Illegal act: Meaning of

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