GENERAL

EXCEPTIONS
Konina Mandal
Assistant Professor
  Chapter IV of IPC
 The general rule is that man is presumed to know the
nature and consequences of his act and is therefore
held responsible for it. This chapter gives situations
which are exceptions to this rule.

General
 31 Sections which can be divided into following 8
Exceptions heads-
1. Mistake of fact and mistake of law (Section 76,79)
2. Privileged and Judicial Acts (Section 77,78)
3. Accidental Acts (Section 80)
4. Necessity (Section 81)
 5. Incapability to commit crime (Section 82-86)
6. Acts done with consent (Sections 87-90); or without
consent (Section 92)
7. Triviality or Trifles (Section 95)
8. Private Defence (Section 96-106)
General  The above categories may be further divided into
Exceptions excusable exceptions and justifiable exceptions.
 In excusable exceptions there will be a lack of mens
rea due to reasons for example an accident.
 While in justifiable exceptions the circumstances under
which the offence was committed furnish legal
justification for its commission like act done in
pursuance of orders of a court.
Excusable Act Justifiable Act

Mistake of fact Judicial Act

Necessity
Incapability
Consent

Accident Trifles

Private Defence
  This comes within the category of ‘excusable acts’
 Section 76 and 79 IPC are the key provisions for the
topic.

Mistake of Fact  Section 76-

and law “76. Act done by a person bound, or by mistake of fact
believing himself bound, by law.—Nothing is an offence
which is done by a person who is, or who by reason of a
mistake of fact and not by reason of a mistake of law in
good faith believes himself to be, bound by law to do it.”
  When a person does something because of a ‘mistake of fact’,
implying some error of opinion as to real facts, which he believes
to be true then his actions will be excused.
 The principle behind this is that a man who is mistaken or ignorant
about the existence of a fact cannot form the necessary intention
to constitute a crime and is therefore not responsible in law for his
Mistake of Fact deeds.
and law  For example, 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.
Here the police officer believed in good faith that Z was Y and will
not be liable for wrongful confinement.
  This is different from a ‘mistake of law’. It is not an excusable act
when a person uses the defence that he did not know the law or
that he was mistaken as to what the law is.
 All persons resident in a country are bound by the law of the land
and it is assumed that ‘every man knows the law’.
 The distinction between mistake of fact and mistake of law can
Mistake of Fact be understood by the following example-

and law A, a police officer arrests B mistakenly thinking that he has

committed murder, when in fact he killed a dacoit in self-defence,
A is not liable for wrongful confinement since it’s a mistake of fact.
On the other hand, if a police officer arrests a person for
committing an assault, which he wrongfully considers a cognizable
offence, he is liable for wrongful confinement since it is a mistake
of law (no authority to arrest in non-cognizable offence)
  Section 79-
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
Mistake of Fact be justified by law, in doing it.
and law Illustration A sees Z commit what appears to A to be a murder. A, in
the exer­cise, to the best of his judgment exerted in good faith, of the
power which the law gives to all persons of apprehending murder­ers in
the fact, seizes Z, in order to bring Z before the proper authorities. A
has committed no offence, though it may turn out that Z was acting in
self-defence.
  Section 79 is complimentary to Section 76. They both excuse acts
done based on a mistake of fact and not for a mistake of law.
 What’s the difference between Section 76 and 79?
Mistake of Fact
and law SECTION 76 SECTION 79
1. For persons acting under a legal 1. Not under a legal compulsion but just
compulsion, eg- police officer believing has a legal justification.
its his duty to arrest.
2. Under this a person believes he must 2. Here the person just thinks his acts
act in a particular way. are justified.
  Section 80-
“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
Accidental means and with proper care and caution.
Illustration A is at work with a hatchet; the head flies off and kills a
Acts 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.”
 A man is not criminally responsible for unintended and unknown
consequences of his lawful acts which are performed in a lawful
manner and merely because harm is caused accidentally.
  Accident does not only mean occurrence by chance, but such
occurrence must be unintended and unexpected.
 It must be noted that both the words accident and misfortune
indicates injury to another person. Accident pertains to injury to
another person, but misfortune pertains to as much injury to the
first person as to the other person who is not connected with the
Accident or act.
 A and B both went to the jungle to shoot wild rats, and both took
Misfortune? their positions. After some time, some sound was heard, and A,
believing it to be a wild rat, fired in that direction. Unfortunately,
the shot caused B’s death. It was held that A was not liable for the
death as the death resulted from an accident.
 But where two persons driving a car collide with each other. And,
this resulted in injuries to drivers of both vehicles as well as some
bystanders. It will be a case of misfortune.
 It is important that the act which was being done was lawful, in a lawful manner and
by lawful means.
Tunda v. Rex 1950 Cr. Lj. 402 (All. HC)
The accused and the deceased were friends who were wrestling fans and were
Lawful act in a engaged in a wrestling bout. While wrestling, the deceased persons head accidentally
came in contact with a concrete platform resulting in injuries to the skull and eventual
lawful manner death. The accused was tried under section 304A but later on convicted under section
304A. He preferred an appeal to the Allahabad High Court, which held that when the

by lawful accused and deceased agreed to wrestle with each other, there was an implied
consent on each part to suffer any accidental injuries. The injury was accidental and
there was no foul play on part of the accused and hence is to be given the benefit
means under section 80 and section 87.
Besides the defense of section 87(consent), benefit was also given under Section 80
due to the fact that there was no foul play by the deceased and both friends impliedly
agreed to accidental injuries while going for a wrestling bout with each other.
A woman who in order to discipline her child, hits him with an iron rod but the rod
hits another child and causes injury will not be entitled to the defence of accident as
the act itself lacks lawfulness and cannot be said to be in a lawful manner and by
lawful means.
  For example, if A, a workman, while throwing down sand
from the roof gives a proper warning but B, a passer-by is
nevertheless killed, the act is accidental and A is not liable.
 Proper care and caution must be taken. For example, if A
picks up a gun, not knowing that it is loaded or not, and
Accidental shoots in the air, killing B- here he would be liable for
causing death by negligence under Section 304A IPC.
Acts  The act must be legal and done in a legal manner. But it was
held that when A, while shooting a jackal in the jungle with
an unlicensed gun, by accident kills a man who was hiding
behind a bush, he would not be liable for murder just
because the gun was unlicensed and it would still be an
accident. (State v. Rangaswami, AIR 1952 Nag 268)
  Section 81 of IPC-

“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.

Necessity Explanation.—It is 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. ”
Based on 3 principles -
• Jus Necessitas– justification of necessity
• Quad Necessitas Non Habet Legam– necessity knows no law
• Necessitas vincit Legam– necessity overcomes the law
  For example, if 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 to 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
Necessity 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.
  The harm can be not just to person but also property. For
example, 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.
 But this does not give an absolute blanket immunity
Necessity from liability in all circumstances. It is only available in
exceptional circumstances and has following
ingredients-
1. Act must have been done without any criminal
intention to cause harm;
2. Act must be done in good faith for preventing or
avoiding other harm to person or property; and
3. Harm must be done in order to avert a greater harm.
  When homicide is committed due to necessity, it can
be of two kinds-
1. That which is of private nature, i.e. used for his own
defence and when it is necessary for the good of the
society. This comes within private defence.
2. That which relates to public justice and safety.
Necessity and (previous example of the ship choosing to hit a boat
with 2 people over a boat with about 20 people.)
Homicide  The principle of necessity only applies where harm
avoided is more than harm caused. If it is merely a
case of one life against another, the doctrine of
necessity won’t apply.
 A captain in justified though, in choosing who is to
enter first in the lifeboat since it results in net saving of
life.
  There was a shipwreck and two sailors and a captain boy were
stuck on a life boat for about 29 days. During this time, they had
gone days without food and the sailors suggested that one of
them must sacrifice his life so the other two could eat his flesh and
survive till they were rescued. The cabin boy never gave his
Regina v. consent for this. On the 25th day the two sailors killed the cabin
boy in his sleep and he was bleeding out till four days when the
Dudley and sailors were rescued.
Stephens  The court said that the doctrine of necessity would not apply here,
though the sailors argued that they did it to preserve their life and
the boy being much weaker would have died anyway. The court
held that-
1. Self preservation is not an absolute necessity.
 2. No man has the right to take another’s life to preserve his own,
Regina v. unless it is done is self defence (private defence).

Dudley and 3. There is no necessity that justifies private homicide (to conserve
one’s life), as distinguished from public necessity or even necessity
Stephens when it is a justification.
 A temptation to murder cannot be held to be legal according to
the court and therefore the sailors were held guilty of murder.
  In certain circumstances where, for example, A stole
food from B in extreme famine and when he couldn’t
have bought it with money and needed it to survive,
theft has been seen as a necessity.
 In exceptional cases the necessity of appeasing hunger is
seen as a valid defence.
Necessity and  For example, D is a miner trapped by a fall of rock while
of waiting to be dug out, eats rations left behind by other
theft members of his party, as his only means of survival.
 It applies even in cases other than hunger, for example if
D’s house is on fire and he takes P’s fire extinguisher to
stop the fire, this would be an act done in necessity and
would be excused unless P’s house was also on fire or
was in danger and D’s act unreasonably increased this
danger.
  Certain people are assumed under law as incapable of committing
a crime. These are listed under Sections 82-86 IPC.
CHILDREN – Doli Incapax
 Section 82 says that nothing done by a child under 7 years of age
will be an offence. This is a total immunity and a child below 7 is
Incapacity to deemed to be incapable of distinguishing between right and
wrong.
commit crime  Section 83 gives partial immunity to children between ages 7 to 12
and says-
“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.”
  An inability to understand actions of the child must be proven. For
example, if a child of 9 years find a necklace at his friends’ place
and goes and sells it for Rs. 20 to misappropriate the money; he
will be liable for theft since he can understand the nature and
consequences of his actions.

Incapacity to INSANITY (M’Naughten Rules)

commit crime  Section 84 deals with unsoundness of mind and says that-
“Nothing is an offence which is done by a person who, at the time of
doing it, by reason of unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is either wrong or
contrary to law.”
Unsoundness of mind or insanity is a disorder of the mind which
impairs mental faculties, i.e. reasoning capacity, of a man and
makes him incapable of understanding the nature and
consequences of his actions.
  Medical insanity doesn’t mean a person is mad or crazy. It
most of the time means that the person is on medicines or
under consultation with a psychiatrist or therapist but are
able to make informed decisions and can do for them and
lead a normal life.

Medical v  Legal isanity is a situation in which a person has to be

placed under direct supervision having no decision making
Legal abilities in things related to finance or else and another
person has to take their responsibility and do their
INSANITY bidding.
 The traditional test of insanity in criminal cases is whether
the accused knew the difference between right and
wrong, following the M'Naughten Rule from 19th
Century England.
 Fifteen judges were called upon to decide on the question of criminal
liability in the cases where the accused is incapable of understanding
the nature of the act and also answered the questions advanced.
Fourteen judges had the same answers. The view of the majority was
given by Tindal C.J., these answers to the questions are known as
M’Naughten's Rule.

The following principles were cited:

 If the person knew what he was doing or was only under a partial
M’Naughten delusion, then he is punishable

Rules  There is an assumption that every man is prudent or sane and

knows what he is doing and is responsible for the same.
 To establish a defense based on insanity, it must be ascertained, at
the time of perpetrating the act, the accused was in such a state of
mind as was unable to know the nature of the act committed by him.
 A person who has sufficient medical knowledge, or is a medical man
and is familiar with the disease of insanity cannot be asked to give
his opinion because it is for the jury to determine, and decide upon
the questions.
 i.
The things those were highlighted in this are elaborated
below:
The accused has to prove legal insanity and not the medical
Surendra insanity
Mishra vs. ii.Every person who is suffering from mental disease is not ipso
facto exempted from criminal liability.
State of iii.The onus of proving insanity or unsoundness of mind which is
Jharkhand A one of the exceptions mentioned in Chapter IV of the CrPC, lies
on the accused on preponderance of probabilities. To
IR 2011 SC discharge the onus, the accused must prove his conduct prior
to offence, at the time or immediately after the offence, with
627. reference to his medical condition. Whether the accused knew
that what he was doing was wrong or it was contrary to law is
of great importance and may attract culpability despite mental
unsoundness having been established.
iv.The accused has to prove legal insanity beyond all reasonable
doubt.
 Under Section 84 a person must be of unsound mind during the
commission of the crime. If a person gets fits of insanity usually but
during the commission of the crime he was aware of his actions and
was acting normally, then he will not come within this section.
Incapacity to INTOXICATION – Involuntary and Voluntary
commit crime  Section 85 excuses acts of a person done due to intoxication which
was caused against his will. It says that- “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.”
  Section 86 says that-
“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
Incapacity to intoxicated, unless the thing which intoxicated him was
administered to him without his knowl­edge or against his will.”
commit crime  For example, if A consumes too much liquor and takes a knife
shouting his intention to kill B, with whom he had a quarrel
earlier, but then kills C who was trying to pacify him. A would
be imputed with the same knowledge as he would have had,
had he been sober and it would amount to culpable homicide
punishable under Section 304 IPC.
  Section 87 of the Indian Penal Code, 1860 provides defence for certain
games such as fencing, boxing, football, etc. This section says that any
act which causes harm except the act intended to cause death or
grievous hurt and which is not in the knowledge of the doer to be likely
to cause death or grievous hurt is not an offence if it is done with the
consent of a person who is above 18 years of age. The consent may be
given in any manner, express or implied.
 This section is based on the maxim“volenti non-fit injuria“, which
means he who consents suffers no harm. In other words, if a person
Consent gives consent for an event that may cause harm to him with his own
will, he accepts to suffer the harm. He can not make the other person
liable for it.
 A and B are playing football. B kicks a ball, and the ball hits the face of
A. As a result, A got injured. Here the consent was given impliedly to
suffer any harm in the course of a game. A can plead for defence.
 The defence of consent is based on two submissions:
1. Every person is the best judge for itself.
2. No man will give consent for what he thinks will be hurtful to him.
  If a person commits an act of harm in good faith and with the
consent for the benefit of that person, it will not be considered an
offence. The consent may be either express or implied. However,
the consent must be obtained lawfully and by a person who is
capable of giving valid consent in law.
 Under section 88 of the Indian Penal Code, the wrong-doer is
protected even for an act causing grievous hurt but not death. In
cases where a person gives consent with his will to take the risk of
Consent an operation, and the operation becomes fatal, the doctor who
has done the operation cannot be punished even if it causes that
person’s death.
A, a surgeon performed plastic surgery on the patient to remove the
defect in the nose. The patient died during the surgery. Here, A will
not be liable for the patient’s death unless there has been any gross
negligence on his part.
  This section provides power to the guardian of a child under
twelve years of age or a person of unsound mind to give consent
for the infliction of harm on them
 . Section 89 of the Indian Penal Code states that any act that is
done for the benefit of a child under 12 years of age or of unsound
mind with the consent of the guardian or any other person having
lawful charge of such person and in good faith is not an offence.
However, please note that this exception shall not extend to the
Consent intentional causing of death or the attempt to cause death.
A, in good faith, for the benefit of his child, took him to a surgeon to
remove the stone in his stomach. He very well knew that the
operation is likely to cause the death of his child. But not intending
to death, A gave his consent to get his child treated. Here, neither A
nor the surgeon will be liable if the operation causes death, as their
sole objective was to cure the child.
  To take the plea of consent as a defence, it must be given by a
person who is capable of giving reasonable and valid consent. A
person of unsound mind, a child under 12 years of age, intoxicated
persons, and so are not capable of giving valid consent.

When consent  The consent given must be free from any fear or misconception or
such misconception of the fact that arises out of
is not a misrepresentation, fraud, etc. Any consent which is obtained
illegally or unlawfully is no consent under the law.
defence –  In short, consent can not be used as a defence under the following
Section 90 IPC cases:
1. Consent that is given by a person under fear of injury.
2. Consent given under misconception of fact.
3. Consent given by a child under 12 years of age.
4. Consent given by a person of unsound mind.
5. Consent given by an intoxicated or drunken person.
  Section 95 states that “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.”
 The meaning of this is evident from the plain reading and the section exists
Triviality or to prevent case load from trivial complaints.

Trifles (Section  The word ‘harm’ has not been defined by the Indian Penal Code under this
section or elsewhere and, therefore, the Court has the authority to
95) determine as to whether harm has resulted. The harm may be in the form of
physical or even mental injury and may include financial or reputational loss.
 For example, during the course of exchange of high tempers and abusive
words between A and B, the latter threw a file of papers at the former which
hit the A causing a scratch on her elbow. Here the harm is so little that
Section 95 can be argued to apply.
  Section 96- 106 of IPC deal with the right to private
defence.
 Section 96 says that “ Nothing is an offence which is
done in the exercise of right of private defence.”
 It therefore establishes private defence, which is
commonly known as self- defence.
Private  Everyone has the right to defend his or her body and
Defence property or the body or property of another.
 But this cannot be used as an excuse to justify causing
harm to another, not for causing more harm than is
necessary.
  “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
Section 97 or of any other person, 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 theft, rob­bery, mischief or criminal
trespass.”
 The right doesn’t just extend to a person’s own body or property
but to even a stranger’s. This right does not exist in English law
and only own or other, if related.
  An aggressor cannot use self-defence to get out of liability. For
example, if A and B had a fight and A had aggressive weapons
during this fight, then A cannot use self defence if he was the one
attacking.
Section 97  The right of self defence is purely preventive and not punitive, it is
thus established on the prosecution evidence. The defendant can
establish the plea by reference to circumstances though.
 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 against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a
public servant acting in good faith under colour of his office, though that direction 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 the
protection of the public authorities.
Section 99 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.
  This section lays down conditions and limits within which the right of private
defence can be exercised.
 There is no private defence-
1. Against acts of a public servant acting in good faith; and
2. Against acts of those acting under their authority or direction;
3. Where there is sufficient time for recourse to public authorities; and
Section 99 4. The quantum of harm that may be caused in all cases of private defence
shall in no case be in excess of harm tat may be necessary for the purpose
of defence.
 However the protection given here to public servants is not absolute and is
subject to restrictions. The acts cannot be wholly illegal and he has to acting
representing his office. When the act is not authorised, it must be such that it
must not cause reasonable apprehension of death or serious hurt.
  For example, if X, a policeman, goes to Y’s house based on
suspicion and asks Y’s wife, Z, for certain documents and on Z
telling X to wait for her husband he beats her up. When Y sees this
he goes to defend Z but X started beating up Y too. During this
fight Y took a stick from X and hit X twice on the head which
proved to be fatal.
Here Y can use the right to private defence since the act of the
Section 99 policeman was illegal and was not done in good faith. Causing death
or grievous hurt is not covered by this Section.
 The force used must be proportionate to the appropriate force in
need to defend in the situation. For example, when a policeman
stabbed and killed a thief trying to escape custody cannot use
private defence as he did used more force than was necessary to
take him into custody.
  “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
Section 100 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.”
 This section has the following ingredients-
1. The person exercising the right of private defence must be
Section 100 free from fault in bringing about the encounter;
2. There must be present an impending peril to life or of great
bodily harm, either real or so apparent as to create an
honest belief of exceeding necessity;
3. There must be no safe or reasonable mode of escape by
retreat;
4. There must have been a necessity for taking the life.
CASE LAWS
  ISSUE: Considering the circumstances in which the young boy Parker
was killed, whether necessity was a defense to the charge of murder?
 Dudley and Stephens (the two defendants) along with Brooks and
Parker(victim) became shipwrecked by a storm.
 They were forced to abandon their ship and were stranded in a small
R v. Dudley emergency boat.
 They had been stranded for 18 days. The food had ran out 7 days earlier
and Stephens and they had had no water for five days.

(1884) 14 QBD  Dudley and Stephens decided to draw straws so that one person
sacrifices himself in order to save the rest. Brooks dissented while
273 DC Dudley and Stephens decided to kill Parker since he was the weakest
and had no family.
 Dudley and Stephens cut the boys (Parker’s) throat. He was too ill to put
up any resistance. All the three men fed on the boy. 
 Four days later a vessel rescued them and on their return to England,
Dudley & Stephens were charged with the boy’s murder.
  Lord Coleridge CJ quotes:
 “It would be a very easy and cheap display of commonplace
learning to quote from Greek and Latin authors, from Horace,
REASONING: from Juvenal, from Cicero, from Euripides, passage after passage,
in which the duty of dying for others has been laid down in
glowing and emphatic language as resulting from the principles of
heathen ethics; it is enough in a Christian country to remind
ourselves of the Great Example [Jesus Christ] whom we profess to
follow.”
  "Now it is admitted that the deliberate killing of this unoffending and unresisting boy
was clearly murder, unless the killing can be justified by some well-recognized excuse
admitted by the law. It is further admitted that there was in this case no such excuse,
unless the killing was justified by what has been called 'necessity'. But the temptation
to the act which existed here was not what the law has ever called necessity. Nor is
this to be regretted. Though law and morality are not the same, and many things may
be immoral which are not necessarily illegal, yet the absolute divorce of law from
Judgement morality would be of fatal consequence; and such divorce would follow if the
temptation to murder in this case were to be held by law an absolute defense of it….."

 "It is not needful to point out the awful danger of admitting the principle which has
been contended for. Who is to be the judge of this sort of necessity? By what measure
is the comparative value of lives to be measured? Is it to be strength, or intellect or
what? It is plain that the principle leaves to him who is to profit by it to determine the
necessity which will justify him in deliberately taking another's life to save his own. In
this case the weakest, the youngest, the most unresisting, was chosen. Was it more
necessary to kill him than one of the grown men? The answer must be 'No'”
  Lord Coleridge CJ states :
 “It must not be supposed that in refusing to admit temptation to
be an excuse for crime it is forgotten how terrible the temptation
was; how awful the suffering; how hard in such trials to keep the
judgment straight and the conduct pure.  We are often compelled
to set up standards we cannot reach ourselves, and to lay down
rules which we could not ourselves satisfy.  But a man has no right
Judgement to declare temptation to be an excuse, though he might himself
have yielded to it, nor allow compassion for the criminal to change
or weaken in any manner the legal definition of the crime.  It is
therefore our duty to declare that the prisoners’ act in this case
was willful murder, that the facts as stated in the verdict are no
legal justification of homicide; and to say that in our unanimous
opinion the prisoners are upon this special verdict guilty of
murder.”
  The defendants were convicted of murder.
 The defense of necessity was not allowed.
 There is no defense of necessity (while killing another’s life to save
one’s own even under extreme necessity of hunger) to the charge of
murder

DECISION:  The defendants were sentenced to death.

 The defendants were later granted a pardon by the Crown and

their sentence commuted to 6 months of imprisonment.
  ISSUE: Whether the appellant acted in his right of private defence. Did Amjad
Khan exceed his right of private defense?

 A communal riot broke out in a town between some Sindhi refugees and the local
Muslims. The trouble started in a locality where most of the shopkeepers were
Sindhis.
Amjad Khan v.  The goods in the Muslim shops there were scattered and some Muslims lost their
lives. Alarm spread to another locality where the shops of appellant and his brother
The State (both Muslims) were situated and the people there, including the appellant, started
closing their shops.
 The family of the appellant's brother had taken shelter in the appellant's portion of
the building through a hole in the wall between the two portions of the building in
which the two shops were situated.
 A mob collected there and approached the appellant's locality and looted his
brother's shop and began to beat the doors of his shop with lathis. The appellant fired
two shots from his gun which caused the death of one Sindhi and injured three other
Sindhis.
  A communal riot broke out at Katni on the 5th of March, 1950,
between some Sindhi refugees resident in the town and the local
Muslims.
 The trouble started in a locality where most of the shopkeepers
were Sindhis. The goods in the Muslim shops there were scared
and some Muslims lost their lives.
FACTS  A communal riot broke out at Katni on the 5th of March, 1950,
between some Sindhi refugees resident in the town and the local
Muslims.
 The trouble started in a locality where most of the shopkeepers
were Sindhis. The goods in the Muslim shops there were scared
and some Muslims lost their lives.
 Section 97 of IPC: the right extends not only to the defense of one’s own body
against any offence affecting the human body but also, to defend the body of any
other person. This right also talks about the protection of property, whether one’s
own or another person’s.
 The learned Judges Mr. Faizal Ali and Bose stated that there was no time for the
defendant to approach the authorities in order to protect himself and feared
getting gravely injured due to the activities of the mob. (S 100, 101, 102)
 He had not done more than necessary for self defense as, the judges noted, shots
fired by him were aimed very low and caused injury to 4 Sindhis, implying that
there was Sindhi activity ongoing within the defendants vicinity.
 Amjad Khan can exercise his right of private defense as he saw reasonable
apprehension of threat towards himself and his family and property. The mob had
already looted his brothers shop and now they had gathered infront of his shop. By
shooting he did NOT exceed his right of private defense.
 So, according to a reasonable man’s perception, Amjad Khan acted to protect his
family and property. (Section 99)
  The facts of the case afforded a right of private defence to the appellant
under the provisions of the Indian Penal Code.
 Amjad Khan saw reasonable apprehension of threat towards himself and
his family and property. There was no way that he could reach out for help.
Therefore, his right of private defense wasn’t exceeded by him and the
defense was availed successfully.
 The circumstances in which he was placed were amply sufficient to give
DECISION: him a right of private defense of the body even to the extent of causing
death as the appellant had no time to have recourse to the authorities and
has reasonable grounds for apprehending that either death or grievous hurt
would be caused either to himself or to his family.
 These things could not be weighed in too fine a set of scales or "in
golden scales."
 The appeal was admitted and conviction of the accused was set aside.
  ISSUE: Did the Appellant exceed the Right of Private Defense as laid down
by § 100 of the Indian Penal Code 1860?
 Was the Appellant within the restrictions of § 99 of the Indian Penal Code
1860?
 The deceased, Gopal, was married to the sister of appellant.
Vishwanath v.  The sister was at this time living with the appellant as she did not wish to stay with
State of U.P., Gopal.
 The father and brother (Vishwanath) were of the opinion that she should stay with
(1960) 1 SCR them and not go and live with Badri.
 Gopal wanted his wife to return home with because of the fact that she was his
646 lawfully wedded wife but also believed that she had an extra marital affair with a
person called Moti.
 Gopal along with the help of others went to take his wife back home. He dragged
her out of the house and in the words of the court a “tug-of-war” ensued.
 Enraged by the conduct of Gopal, the father, asked that Gopal should be beaten.
 Upon hearing these words from this father, the appellant (Vishwanath) pulled out a
knife from his pocket and stabbed Gopal once.
 Unfortunately the knife pierced his heart and subsequently he died to this injury.
  The force used by the appellant under a reasonable apprehension was in
proportion with the fear caused by the attempted ‘abduction’ by the deceased.
 The courts looked at Section 97 of IPC which gives the right of private defense
against any offence affecting the human body.
 Section 99 was used by the courts and they stated that the right of private
defense in any case should not extend to inflicting more harm than required to
REASONING defend one self from the incoming harm.
AND Analysis:  The case at hand deals with Section 100. This section lays down six instances
where the right of private defense can extend to that of causing death.
 As long as the assault is “aggravated in nature” the right extends to causing
of death.
 The courts further clarified that even though many of the occasions are
offences which are defined, the accused need not have the exact mens rea for
that offence.
  The courts laid down a simple requirement of an offence which is one of
assault with the intention of abduction simpliciter.
 The definition of abduction in this case should of the first type where “a
person is compelled by force to go from any place”
 The law states that the “right of private defense never extends to causing
Analysis AND more harm that necessary for the purpose of defending.”
CONCLUSION  The bench stated that “one blow” with a kitchen knife did not cross that
threshold where it became unreasonable.
:  The circumstances along with the fact it was an ordinary knife, made the
courts conclude that it was unfortunate for Gopal that the one blow
pierced his heart and resulted in his death.
 The Courts allowed the S.100 of the IPC to be used in this case.
 They explicitly stated that because such situations cannot be weighed in
golden scales, one blow to save his sister cannot be judged harshly.