General Exceptions (S.

76-106)

Chapter IV of the Indian Penal Code deals with the

general exceptions to criminal liability. There are
various kinds of acts (exceptions) done under the
circumstances mentioned in Secs. 76 to 106 which
will not amount to offences under the Code.

Exemptions from criminal liability – Acts are of two

categories

1- Excusable acts
(a)Mistake of Fact (S.76 &79)

(b)Incapacity: i- Infancy (S.82-83) ii- Insanity

(S.84)
iii-Intoxication (S.85-86)
(c) Accident (S.80)
 2-Justifiable acts
(a) Judicial act (S.77-78_
(b) Necessity (S.81)
(c) Duress (S.94)
(d) Consent (87-89), without consent (S.92)
(e) Communication (S.93)
(f) Trivial or trifle acts (S95)
(g) Private defence (96-106

Burden of Proof

The onus of proving exceptions lies on the

accused that has to prove the circumstances
bringing the case within any of the general
exceptions. The court shall presume the absence
 of such circumstances. The prosecution has to
prove the guilt of the accused.

Thus, A, accused of murder, alleges that, by

reason of unsoundness of mind, he did not know
the nature of the act. The burden of proof is on
A. It may be noted that unlike the prosecution,
which has to prove the charge beyond a
reasonable doubt, the accused has to show that
preponderance of probabilities is in favour of his
plea.

MISTAKE (s.76 and s.79)

Principle: Ignorentia facti excusat ignorentia juris

non excust means Mistake of fact is excusable,
mistake of law is not excusable. Section 76 and79
are based on this legal maxim.
S.76 “Nothing is an offence which is done by a
person who is, or who by reason of a mistake of fact
and not by reason of a mistake of law in good faith
believes himself to be, bound by law to do it.”

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.
What is Mistake- Mistake is a slip made, not by
design but by mischance. Mistake can be admitted as
defence provided:

 The state of things believed to exist would, if

true would have justified the act done
 Mistake must be reasonable
 Mistake relates to the fact and not law

Ignorantia facti doth excuse i.e. ignorance of fact is

excusable. Mistake of fact is the result of lack of
mental alertness or forgetfulness which is induced
by ignorance, misapprehension or misunderstanding
of the truth and resulting in some act or omission.

Mistake of fact is allowed as defence when the act

done was an order from the superior i.e. the person
was bound by law to do it. If the person executes an
obvious illegal command of the superior then this
shall not be a valid defence as the servant should
exercise his own judgement.

79. Act done by a person justified, or by mistake

of fact believing himself, justified, by law.—
Nothing is an offence which is done by any person
who is justified by law, or who by reason of a
mistake of fact and not by reason of a mistake of law
in good faith, believes himself to be justified by law,
in doing it.
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.
Mistake of fact is no defence if the fact in itself is
illegal e.g. A cannot take a defence under mistake of
fact that he was intending to kill X and he mistook Y
as X and shot him.

S.76 Bound by law- Legal compulsion

s.79 justified by law- Legal Justification

Ignorantia juris non excusat i.e. ignorance of law is

no defence. Everybody is bound to know the law of
land and ignorance of law is no excuse. This is based
on the assumption that if a person exercises due care
and diligence he would know the law. ‘Mistake of
law’ means mistake as to existence of any law on a
particular subject as well as mistake as to what law
is. If this is allowed as a defence, then every
person would plead ignorance of law and escape
punishment leading to total failure of justice.

If there is a mixed question of law and fact then it

shall be treated as a question of fact if the accused
was misled into an error of fact on account of an
error of law. Also one cannot plead ignorance of fact
when responsible inquiry would have elicited the
true facts.

An act done by virtue of a judgment or order of a

Court while in force even if Court had no
jurisdiction, but person in good faith believes Court
had jurisdiction then such person shall be allowed
defence under the law. Also if a judge does an act in
the exercise of power given by law which in good
faith he believes that he is capable under law to do it
then he shall also get defence.
In all the above cases of mistake of fact defence
under criminal law is given because the act lacks
mens rea or an intention to commit an offence or to
do something wrong but they are committed under
good faith. Good faith requires not logical
infallibility but due care and attention.

Thus an act done under mistake of law is no defence

but if done under mistake of fact by exercising good
faith then it shall be a defence.

Cases- R v.Prince

R v Tolson

Chirangi v.State – Act done in good faith believing

in it to be justified by law is defence

R v. Rose-Homicide is excusable if fatal blow is

necessary for protection of life, even though based
on mistaken belief.
Judicial acts (Section 77-78)

The second general exception relates to act of judges

and courts.

S.77. “Act of Judge when acting judicially.--Nothing

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

According to Sec. 77, any act done by a judge while

acting judicially, which he in good faith believes to
be given to him by law, is no offence. Thus, a judge
who sentences a prisoner to death (even wrongly) is
not himself liable to be hanged for having caused
somebody's death.

S.78 “Act done pursuant to the judgment or order of

Court.--Nothing which is done in pursuance of, or
which is warranted by the judgment or order of, a
Court of Justice, if done whilst such judgment or
order remains in force, is an offence,
notwithstanding the Court may have had no
jurisdiction to pass such judgment or order,
provided the person doing the act in good faith
believes that the Court had such jurisdiction.”

Thus an act done pursuant to the judgment or

order of a court of justice (when the person doing the
act in good faith believes that the court has
jurisdiction) 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.

It may be noted that under Sec. 78, the officer is

protected in carrying out an order of a court, which
may have no jurisdiction at all, whereas as under
Sec. 77, the judge must be acting within his
jurisdiction to be protected by it. Thus, mistake of
law' can be pleaded as a defence under Sec. 78
 S.80. 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.

1-An accident must be unintentional and

unexpected. 2-It implies to happening which cannot
be predicted by prudent man.
According to Section 80, any act done without
criminal intent or with knowledge with proper care
and precaution while doing a lawful act in a lawful
manner with lawful means, will constitute as an
accident. However, if there is no connection between
the harm and the act, then there may be no liability
for the harm caused.
In State of Orissa v. Khora Ghasi (1978) Cri LJ
1305, in this case, the accused killed the victim by
shooting an arrow with the bona fide belief that he
was shooting a bear that entered into the fields to
destroy his crops, the death was said to be accident.
If the accident occurs while doing an unlawful act,
the act would not attract the provision of Section 80
of IPC. In Jogeshwar V. Emperor (24 Cri LJ 789),
the accused was giving the fist blow to the victim
but accidently hit his wife who was holding her 2
month old child, the blow hit the head of the child
which resulted in his death. It was held that even
though the child was hit by accident, the act was not
lawful, not done by lawful means or in a lawful
manner.
Defence of Necessity

S.81. 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.

Illustrations (a) A, the captain of a steam

vessel, suddenly and without any fault or negligence
on his part, finds himself in such a position that,
before he can stop his vessel, he must inevitably run
down a boat B, with twenty or thirty passengers on
board, unless he changes the course of his vessel,
and that, by changing his course, he must incur risk
of running down 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 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.
Cases where necessity can be pleaded as
defence-
1-Self defence and prevention of violence
 2-prevention of harm to the accused at the
expense of innocent person
3-In order to prevent greater harm
Doctrine of self-preservation

R v. Dudely & Stephens – The question is, how

far the necessity of preservation of own life justifies
causing harm to an innocent person.

Facts. Dudley and Stephens along with Brooks

and Parker(victim) were cast away at sea without
weeks of food. After twenty days, Dudley and
Stephens proposed one person sacrifice himself in
order to save the rest. Brooks dissented while
Dudley and Stephens decided to kill Parker since he
was the weakest and was almost about to die. On the
Seeing no rescue in sight, Dudely and Stephens
killed Parker and the three men feasted on his body.
Four days later a vessel rescued them and Dudley
and Stephens were charged with murder.

Whether the killing of Parker was murder

considering the circumstances of this case?

As necessary the circumstances seemed where

sacrificing one’s life would save the rest, that itself
does not justify murder. The fact that Dudley and
Stephens chose the weakest person to be the victim
also does not justify that Parker could not have
survived. Instead, by killing him, it is only making
certain that he had no chance of survival.

Three principles were deduced from the

judgement of this case:
Lord Coleridge held
“To preserve one’s life is generally speaking a duty
but it may be the plainest and highest duty to
sacrifice it. War is full of instances in which it is
man’s duty not to live but to die. The duty in case
shipwreck, of a captain of his crew, of the crew to
the passengers, of soldiers to the women and
children.. these duties impose on a man the moral
necessity not of preservation, but of sacrifice of their
lives for others.. it is not correct to say that there is
necessity to preserve own life. A man has no right to
declare temptation to be an excuse .. therefore
prisoner’s act was willful murder.”

Three principles can be deduced from the

judgment

1-Self-preservation is not absolute necessity

 2-no man has right to take another’s life to
preserve his own

3-there is no necessity that justifies homicide.

82. Act of a child under seven years of age.—

Nothing is an offence which is done by a child under
seven years of age.
83. Act of a child above seven and under
twelve of immature understanding.—Nothing is
an offence which is done by a child above seven
years of age and under twelve, who has not attained
sufficient maturity of understanding to judge of the
nature and consequences of his conduct on that
occasion.
Defence of Insanity (S.84)

Defence of insanity has been in existence since

many centuries; however, it took a legal position
only since the last three centuries. There were
various tests used to declare a person legally insane
such as
1-Wild Beast test,

2-the Insane Delusion test, and

3-“test of capacity to distinguish between right and

wrong.”

These three tests laid the foundation for the

landmark case Mc Naughten rule.

Facts of the case are as follows Daniel M’Naghten, a

Scotsman was tried for the murder of Edward
Drummond. Private Secretary to Sir Robert Peel, the
then Prime Minister Denial M’Naghten, was under
an insane delusion that Sir Robert Peel had
persecuted him and mistaking Drummond for Sir
Robert Peel he shot and killed him. He was tried in
London before Tindal C.J. and two other judges and
defended by Mr. Cockbum who later on became the
Lord Chief Justice of England. The accused pleaded
insanity in his defence and the medical evidence
produced in substance that the prisoner was affected
by morbid delusions, which carried him beyond the
power of his own control, and left him with no
perception of right and wrong, that he was not
capable of exercising any control over acts
connected with his delusion. The Chief Justice in his
charge to the jury said that the question for them to
be determined was whether at the time of
committing the act he had or had not the use of his
understanding so as to know that he was violating
the law of God and man. The jury acquitted the
prisoner on the ground of insanity, but had ordered,
however, that the prisoner be detained in Broadmoor
mental institution where he remained until his death
in May 1965.
This Mc Naughten rule became a legendary
precedent for the law concerning the defense of
insanity. Even, in India, insanity defense law,
Section 84 IPC is solely based on the Mc Naughten
rules. Since it is drafted, no changes have been
made. However, in 1971, there was an attempt by
the Law Commission of India to revisit the Section
84 in their 42nd report, but no changes were made.

Section 84 of IPC deals with the “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.”

On analysis of the Section 84 IPC, the following

essential ingredients can be listed. For the sake of
easy understanding, the Section 84 IPC can be
divided into two broad categories of, major criteria
(medical requirement of mental illness) and minor
criteria (loss of reasoning requirement). Major
criteria (mental illness requirement) mean the person
must be suffering from mental illness during the
commission of act. Minor criteria (loss of reasoning
requirement) mean the person is:

a. Incapable of knowing the nature of the act or

b.Incapable of knowing his act is wrong or
c. Incapable of knowing it is contrary to law.

Both major (mental illness) and minor (loss of

reasoning) criteria constitute legal insanity.

Section 84 IPC, clearly embodies a fundamental

maxim of criminal jurisprudence that is, (a) “Actus
nonfacit reum nisi mens sit rea” (an act does not
constitute guilt unless done with a guilty intention)
and (b) “Furiosi nulla voluntas est” (a person with
mental illness has no free will). This means that an
act does not constitute a crime unless it is done with
a guilty intention called “mens rea.” Hence, Section
84 IPC fastens no culpability on persons with mental
illness because they can have no rational thinking or
the necessary guilty intent.

To be held criminally responsible, two essential

elements have to be proven, beyond reasonable
doubt:

(a) the person committed the act (actus reus)

(b) in doing so, the person acted with his or her own
free will, intentionally and for rational reasons (mens
rea).
Psychiatrists may be asked to assist the court in
determining whether certain mental disorders
affected a person's ability to form the intent
necessary to make that person legally culpable.

Section 84 lays down the legal test of responsibility

in cases of alleged crime done by a person with
mental illness. There is no definition of
“unsoundness of mind” in the IPC. The courts have,
however, mainly treated this expression as
equivalent to insanity. But the term “insanity” itself
has no precise definition, carries different meaning
in different contexts and describes varying degrees
of mental disorders. Every person who is mentally ill
is not ipso facto exempted from criminal
responsibility. A distinction is to be made between
legal insanity and medical insanity. A court is
concerned with legal insanity, and not with medical
insanity.

Any person, who is suffering from any kind of

mental illness is called “medical insanity,” however
“legal insanity” means, person suffering from mental
illness should also have a loss of reasoning power.
The term legal insanity also refers to the “mental
state” of a person at the time of committing crime
and nothing else. This is purely a legal concept and
is unrelated to the various psychiatric diagnoses.

In simple words, legal insanity means, at the time of

the commission of the act, the person should be
suffering from mental illness and also have a loss of
reasoning power. This issue is clearly depicted in
Section 84 IPC as that person incapable of knowing:

a. The nature of the act, or

 b.That he is doing what is either wrong or
c. Contrary to law.

Mere abnormality of mind or partial delusion,

irresistible impulse or compulsive behavior of a
psychopath affords no protection under Section 84
IPC.

In one of the landmark decisions, in the case of

Surendra Mishra v.state of Jharkhand, the Apex
Court has stated that an accused who seeks
protection under Section 84 of the IPC has to
prove legal insanity and not medical insanity.
Further, it also said that expression
“unsoundness of mind” has not been defined in
the IPC, and it has mainly been treated as
equivalent to insanity.
In Dahyabhai Chhaganbhai Thakker v. state of
Gujarat, the court has held that even if the accused
was not able to establish conclusively that he was
insane at the time he committed the offense, the
evidence placed before the court may raise a
reasonable doubt in the mind of the court as regards
one or more of the ingredients of the offense,
including mens rea of the accused and in that case
the court would be entitled to acquit the accused on
the ground that the general burden of proof resting
on the prosecution was not discharged.

Defence of Intoxication (S.85-86)

Intoxication is a state of mind in which a person
loses self-control and his ability to judge.
Intoxication is a defence available to criminal
defendant on the basis that, because of the
intoxication, the defendant did not understand the
nature of his/her actions or know what he/she was
doing. The defence of intoxication typically depends
on whether the intoxication was voluntary or
involuntary and what level of intent is required by
the criminal charge. Under the Indian Penal Code
the criminal liability of intoxication is mentioned
under section 85 and 86.

S.85 Involuntary Intoxication

S.86. Voluntary or self-induced Intoxication

S.85. 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”.

Ingredients of S.85

1- At the time of doing act by the reason of

intoxication he was incapable of knowing:
a-the nature of the act
b-act was either wrong or contrary to law
c- the thing which intoxicated him was
administered to him without his knowledge
or against his will.
 Case- Director Public Prosecution v Beard
(1920)
Basudeo v. Pepsu (1956)

S86. 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”.

Case-Basudeo v. Pepsu (1956)

Act done by Consent (S.87-91) Volenti non fit
injuria

S.87. 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 eighteen 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.

S.88. 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.

S.89. 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 that:

a-First.-That this exception shall not extend to the

intentional causing of death, or to the attempting to
cause death;

b-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;

c-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;
d- 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, in as much as his object was the cure of
the child.

S.90. 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.

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. 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.

S. 91. Exclusion of acts which are offences

independently of harm cause.--The exceptions in
sections 87, 88 and 89 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.

Absence of Criminal Intention and acts done

without person’s consent (S.92-94)
S.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 causes 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.

Illustrations (a) Z is thrown from his horse, and is

insensible. A, a surgeon, finds that Z requires to be
trepanned. A, not intending Z's death, but in good
faith, for Z's benefit, performs the trepan before Z
recovers his power of judging for himself. A has
committed no offence.
 (b) Z is carried off by a tiger. A fires at the tiger
knowing it to be likely that the shot may kill Z, but
not intending to kill Z, and in good faith intending
Z's benefit. A's ball 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 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.

(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 house-top, 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.

Explanation.-Mere pecuniary benefit is not benefit

within the meaning of sections 88 89 and 92.

S.93. 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.
S.94. 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.

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.

S.95. 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.
Section 95 is based on the principle contained in the
maxim Di minimus non curat lex means law takes
no account of trifles.

Right of Private Defence (S.96-106)

The state has the duty to protect its citizens and their
property from harm. However, circumstances may
arise when the aid of state machinery is not available
and there is imminent danger to a person or his
property. In such situations, a person is allowed to
use force to ward-off the immediate threat to his or
someone else’s person  or property. This is the right
of private defence. The people are endowed with this
right so that they can defend themselves and their
property and not hesitate due to fear of prosecution.

The right, in some circumstances even extends to

causing death of the person who poses such a threat.
But such a right is subject to some restrictions and
not available in all circumstances. It is only allowed
when the danger to life or property is immediate and
the accused is not the aggressor. The right of private
defence is not available against public servants
acting in exercise of their lawful powers. A person is
allowed to use only reasonable force; a force that is
proportionate to the impending danger.

Sections 96 to 106 of the Indian Penal Code state

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

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

of private defence is absolutely necessary for the
protection of one’s life, liberty and property. It is a
right inherent in a man. But the kind and amount of
force is minutely regulated by law. The use of force
to protect one’s property and person is called the
right of private defence.
S.96. Things done in private defence.—Nothing is
an offence which is done in the exercise of the right
of private defence.

Laxman v. State of Orissa it was held that right of

private defence is available to one who is suddenly
confronted with immediate necessity of averting an
impeding danger not of his own creation. The
necessity must be real , present and apparent.

S.97. Right of private defence of the body and of

property.—Every person has a right, subject to the
restrictions contained in section 99, to defend—

First.—His own body, and the body of any other

person, against any offence affecting the human
body;
Secondly.—The property, whether movable or
immovable, of himself or of any other person,
against any act which is an offence falling under the
defintion of theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass.

S.98. Right of private defence against the act of a

person of unsound mind, etc.—When an act,
which would otherwise be a certain offence, is not
that offence, by reason of the youth, the want of
maturity of understanding, the unsoundness of mind
or the intoxication of the person doing that act, or by
reason of any misconception on the part of that
person, every person has the same right of private
defence against that act which he would have if the
act were that offence.
Illustrations (a) Z, under the influence of madness,
attempts to kill A; Z is guilty of no offence. But A
has the same right of private defence which he
would have if Z were sane

. (b) A enters by night a house which he is legally

entitled to enter. Z, in good faith, taking A for a
house-breaker, attacks A. Here Z, by attacking A
under this misconception, commits no offence. But
A has the same right of private defence against Z,
which he would have if Z were not acting under that
misconception.

S. 99. Acts against which there is no right of

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

There is no right of private defence in cases in

which there is time to have recourse to protection of
the public authorities.

Extent to which the right may be exercised.—The

right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict
for the purpose of defence.

Explanation 1.—A person is not deprived of the

right of private defence against an act done, or
attempted to be done, by a public servant, as such,
unless he knows or has reason to believe, that the
person doing the act is such public servant.
 Explanation 2.—A person is not deprived of the
right of private defence against an act done, or
attempted to be 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, if demanded.

S.100. When the right of private defence of the

body extends to causing death.—The right of
private defence of the body extends, under the
restrictions mentioned in the last preceding section,
to the voluntary causing of death or of any other
harm to the assailant, if the offence which occasions
the exercise of the right be of any of the descriptions
hereinafter enumerated, namely:—
 First.—Such an assault as may reasonably cause
the apprehension that death will otherwise be the
consequence of such assault;

Secondly.—Such an assault as may reasonably

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

Thirdly.—An assault with the intention of

committing rape;

Fourthly.—An assault with the intention of

gratifying unnatural lust;

Fifthly.—An assault with the intention of

kidnapping or abducting;

Sixthly.—An assault with the intention of

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

Seventhly.—An act of throwing or administering

acid or an attempt to throw or administer acid which
may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such act.
(inserted through Criminal Law Amendment
Act,2013)

Cases: 1-Harjinder Singh v Karnail Singh(1998)

2-Sikandar Singh v state of Bihar

S.101. When such right extends to causing any

harm other than death.—If the offence be not of
any of the descriptions enumerated in the last
preceding section, the right of private defence of the
body does not extend to the voluntary causing of
death to the assailant, but does extend, under the
restrictions mentioned in section 99, to the voluntary
causing to the assailant of any harm other than death.

S.102. Commencement and continuance of the

right of private defence of the body.—The right of
private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises
from an attempt or threat to commit the offence
though the offence may not have been committed;
and it continues as long as such apprehension of
danger to the body continues.

S.103. When the right of private defence of

property extends to causing death.—The right of
private defence of property extends, under the
restrictions mentioned in section 99, to the voluntary
causing of death or of any other harm to the wrong-
doer, if the offence, the committing of which, or the
attempting to commit which, occasions the exercise
of the right, be an offence of any of the descriptions
hereinafter enumerated, namely:—

First.—Robbery;

Secondly.—House-breaking by night;

Thirdly.—Mischief by fire committed on any

building, tent or vessel, which building, tent or
vessel is used as a human dwelling, or as a place for
the custody of property;

Fourthly.—Theft, mischief, or house-trespass,

under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not
exercised.

S.104. When such right extends to causing any

harm other than death.—If the offence, the
committing of which, or the attempting to commit
which occasions the exercise of the right of private
defence, be theft, mischief, or criminal trespass, not
of any of the descriptions enumerated in the last
preceding section, that right does not extend to the
voluntary causing of death, but does extend, subject
to the restrictions mentioned in section 99, to the
voluntary causing to the wrong-doer of any harm
other than death.

S.105. Commencement and continuance of the

right of private defence of property.—The right of
private defence of property commences when a
reasonable apprehension of danger to the property
commences.

The right of private defence of property against theft

continues till the offender has effected his retreat
with the property or either the assistance of the
public authorities is obtained, or the property has
been recovered.

The right of private defence of property against

robbery continues as long as the offender causes or
attempts to cause to any person death or hurt or
wrongful restraint or as long as the fear of instant
death or of instant hurt or of instant personal
restraint continues.

The right of private defence of property against

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

The right of private defence of property against

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

S.106. Right of private defence against deadly

assault when there is risk of harm to innocent
person.—If in the exercise of the right of private
defence against an assault which reasonably causes
the apprehension of death, the defender be so
situated that he cannot effectually exercise that right
without risk of harm to an innocent person, his right
of private defence extends to the running of that risk.

Illustration-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 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.