Dr Nandini C P

Criminal Law - I
 Sec 76-106- These provisions make an
offense … non- offence

 Strictly brought under the seven categories

 Burden is on the accused to prove that his

cases comes under exception ( sec 105 of
the IEA, 1972)

 The onus of adducing evidence shifts from

one party to another
 Mista Accid Absenc Cons Trifli Private
ke of ent e of ent ng Defenc
Fact S 80 Crimin Ss Acts e
Ss Ss 76, al 87, S 95 Ss 96-
77 & 79 Intent 90 106
78 Ss 81-
86, 92-
94

General Exceptions
 The police officer to consider , if the
accused comes under the exception of
chapter IV
 However provisions of sec 96-106 fall
under different category as private
defence
 Other than the general exception , there
are special exceptions like S 300 ( 1-5);
334;335;358;359;361;494;499
Excusable Justifiable Act
Act • Judicial Act- Act of
Judge & Act done in Pursuance
• Mistake of Fact of an Order of the Court
• Incapacity • Necessity
• Duress
• Infancy
• Consent – With or Without
• Insanity • Communication
• Intoxication • Trivial
• Accident • Private Defence

• In the above there is legal

• Here there is lack of justifications
mens rea
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.

 Respondent Superior has no applicable in

cases where the act is illegal … however can be just
a ground for mitigation of punishment ( Chaman
Lal – 1940)

Even Private Persons u/s 42 of Cr. P C are protected

under this section
 It must of such character that had the
supposed circumstances been real, they
would have prevented the alleged liability
from attaching to the person in doing what
he did
 Mistake must be reasonable one
Mistake must be of fact only and not of
law -
R V Bailey – No exemption even if the
person was absent from the country
 George Fletcher, classifies mistakes on the
basis of legal outcomes. Thus, by his method,
there are three kinds of mistakes:

- Mistakes barring liability altogether.

 - Mistakes barring liability only if the making
of the mistake is free from culpability.
 - The mistake might have no effect on the
outcome of the case.
It is in third category that, at present, mistakes of
law would appear to fall.
 The distinction between the two sections lies in the difference
between legal compulsion and legal justification.
 The question of mistake arises in the case of a conflict between
objective existent facts and subjective impressions of those facts on
the part of a person
 In case of a strict liability offence, no mistake would serve to excuse.-
R. v. Prince
 R v. Tolson-Strict liability principle- Special cases of bigamy : Case of
Bigamy under the Mistaken belief as to death of his spouse- Court
distinguished b/w recklessness and intention with that of negligence
 D.P.P. v. Morgan ( 1976) Rape by Companions of the Husband( referring
Sweet V Parsley ( 1970)
 R. v. Cunningham- it was held that an accused who speeds cannot
claim a defence of having misread the speed limit sign, as this was a
mistake of law.
 St of Mah v. M.H. George 1964 :The S C stated that the accused was
guilty because he intended to bring a particular item into India.
 The excuse of mistake is based on the ground that a person
who is mistaken or ignorant about the existence of a fact
cannot form the requisite intention to constitute the crime
and is therefore not responsible in law for his deeds.
 This has been incorporated in the common law-principle
"ignorantia facit doth excusat, ignorantia juris non excusat"
(ignorance of fact excuses, ignorance of law ds not excuse).
 R V. Levitt ( 1839)…..where the accused killed a woman,
who was hiding behind a curtain in his house, mistakenly
believing her to be a burglar…. Supposed to be a burglar
 Similar Decision in St of Orissa V. Khora Ghasi ( 1978)– Here
the accused was guarding his maize field and saw a moving
object .. Thinking it to be a bear . Shot and killed a man.
 In Raj Kapoor v. Laxman (1980) 2 SCC 175, it was held that
“….If the offender can irrefutably establish that he
entertained a mistake of fact and in good faith believed
that he was justified by law in committing the act, then
the weapon of S.79 demolishes the prosecution.“
 Wilmington V DPP ( 1995)- Charged with murder of his
wife- claiming that the gun went off accidently , when he
was threatening her to live with her otherwise he will
shoot himself
 In another case , where the person had gone to the
church after unloading the gun, whereas some person
had in between used and killed his wife believing the
gun to be unloaded – -Can he get exemption ?
 R V Lamb (1967)- Jokingly showing gun to his friend and
killed ..When pressed the trigger
 InKohu M.K. Ismail v. Mohammed K.
Umma,AIR 1959 Ker 151, the accused was
charged with bigamy under S.494 of the
IPC for contracting a second marriage
during the continuance of the first
marriage. She was acquitted on the
grounds that she honestly and on
reasonable grounds believed that she
had obtained a divorce from the
complainant, although the divorce was
unauthorized.
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.
Wrongful Arrest in good faith
St of WB V. Shew Mangal Singh (1981)- order by
the senior- Mob Attack . Not liable for murder
Chirangi V. St (1952) - Killed Son for a tiger in the
hillock with an axe ( widower and living with his
son / nephew and daughter)
SEC 76
 The person is assumed to
be bound
 Here it is real and
supposed legal
obligation
 Need to have good faith
 He has to prove that he
believed in good faith
that he was bound by law
SEC 79
 Justified by law
 Here it is real and
supposed legal
justification
 Need to have Good Faith
 Good Motive cannot be a
defense
 Here he has to be that he
is empowered by law to
do so
 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.

 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.

Sec 79 protects all acts done by person bound by law or justified

Sec 197 of C r p C provides for protection against prosecution
See Kiran Bedi & Jinder Singh V The Committee _ ( NL under sec
178 of IPC) Arresting a Lawyer
 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.
A Doing his work with an Hatchet :nThe
head of the Hatchet flies and kills , …
Here if there is no want of proper caution
on the part of A , his act is excusable
 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.
 DPP V Lynch ( 1975)- Here D.. Drove P and his
campanions to the place where he knew that p
intended to murder a policeman, D ‘s
intentional driving of the car was aiding and
abetting,-- even though he regretted the plan
and indeed was horrified by it. Later – this
decision was criticized and law laid down
clearly .. As to allow the defence for murder –
to be yes or no….
 The Court of Appeal dismissed the appeal and
the defendant appealed to the House of Lords.
 Held: Appeal allowed (The defence of duress is
available to a participant to murder who does
not personally do the act of killing).
 In Howe – ( 1987) .. Held that the defence
should not be given ….R V Sharp ( 1987)-
The court held that – the defence would not
be allowed to a person who voluntarily
joined a criminal organization or gang with
the knowledge that the gang used loaded
firearms to carry out robberies on post
offices and also that the leader of the gang
might bring pressure upon him to
participate in such offences. His appeal for
conviction against manslaughter was
rejected , when their leader had shot dead
the post – master
 The appellant joined a gang who carried out armed
robberies. He then wished to leave but was
threatened with serious violence if he did so. He took
part in a robbery on a post office in which the post
master was killed. He was convicted of murder and
his appeal was dismissed.
Lord Lane CJ: "Where a person voluntarily and with
knowledge of its nature joined a criminal
organisation which he knew might bring pressure on
him to commit an offence, and was an active member
when he was put under such pressure, he cannot
avail himself of the defence of duress."
 Abbott v The Queen [1977] AC 755 Privy Council
 Abbott had taken part in a brutal killing following
death threats against himself and his mother. He had
held the victim whilst she was being attacked with a
cutlass and then buried her alive. He was convicted
of murder and sentenced to death. He appealed his
conviction contending the defence of duress should
have been available.
 Held: Appeal dismissed and conviction upheld (Lord
Wilberforce and Lord Edmund Davies dissenting)
 The defence of duress is not available for murder to a
principal in the first degree.
 However in R V Hudson & R V Taylor- (
1971) –The court allowed the defence of
duress for giving false evidence , when
the person who was threatening was
present in the court and the accused
was told to act as per the direction
 R V. Hasan Prostitute Help( 2005)– Four
Question to was raised by jury to
determine the applicability of the
defence of duress – See The Elements of
the defence by Lord Brigham ( P 327 of
Smith and Hogan ) 12th Edition
 R V Graham [1982] 1 WLR 294 Court of Appeal- The appellant and
his homosexual partner Mr King .. Killed appellant’s wife.
 Held:
His conviction was upheld. The fact that a defendant's will to resist
has been eroded by the voluntary consumption of drink or drugs
or both is not to be taken into account. The correct direction to
juries should be:
(1)Was the defendant, or may he have been, impelled to act as he
did because, as a result of what he reasonably believed King had
said or done, he had good cause to fear that if he did not so act
King would kill him or (if this is to be added) cause him serious
physical injury?
(2) If so, have the prosecution made the jury sure that a sober
person of reasonable firmness, sharing the characteristics of the
defendant, would not have responded to whatever he reasonably
believed King said or did by taking part in the killing?

 The elements of the Graham test:
 1. The defendant must have a reasonable
belief in the circumstances;
 2. This belief must have lead the defendant
to have a good cause to fear death or
serious injury would result if he did not
comply; and
 3. A sober person of reasonable firmness,
sharing the characteristics of the defendant,
might have acted as the defendant did.
 All three elements are objective in nature.
 Duress of Circumstances
 Reckless driving case- Willer (1986) –
Driving on the pavement to escape from a
gang of youths bent on attacking - Judge
refused to put the defence of necessity
 In Martin( 1989) in another reckless driving
case, the COA quashed the conviction,
saying ‘ it is still not clear whether there is
general defence of necessity and necessity
can only be a defence to charge of reckless
driving where the facts establish “ duress of
circumstances”
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.
R. P. Bajaj V K P S Gill
 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 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.
 Leading Case R V Dudley and Stephen
( 1884)
 Buckoke v. Greater London Council ( 1971)
– Fire Engine Crossing the Signal to save a
man’s life
 Brourne ( 1939) Why some abortions must
be lawful.... Law commission in the UK has
recommended for its abolition
 Perka( 1984) No system should allow it as a
defence- but can be excused in certain
circumstances
 Common Law presumption ( rebuttable) that
wife committed an offence ( except murder
or treason) in presence of her husband did
so under coercion and she should be
acquitted.
 The Law commission has recommended the
abolition of the coercion is wider than
Duress
 Criminal Justice Act, 1925 abolished the
presumption though.. it is retained the
defence
 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.
 In the beginning – it was held that a child
could not be guilty of crime unless it had
reached the age of twelve.
 Later law became severe and the age was
fixed at seven (In 1963… The age was
raised to 10 in England – From 10th
Birhtday)-
 In Makshulshah ( 1886) the court held that , if the
child sold a third party’s property, as the child
cannot be made liable under 411 ( IPC), the person
who bought the property was held liable for
Criminal Misappropriation
 Is running away means that the child understood that
it was wrong? – Ulla Mahapatra ( 1950) & A.v. DPP
(1991)
 Then later law divided it into three classes :
 Those under 10- Conclusive presumption.. In Marsh
V Loader ( 1863) the child who was arrested when 6
yrs successfully claimed from the arrestor.. For
wrongful confinement
 Those b/t 10-14- Rebuttable- but the presumption of
innocence is strong under 14 yrs.. So there must be some
clearer proof of mental condition necessary for the
commission of crime - Takes count of “mischievous
discretion” and needs to prove knowledge – in R V Tatam-
1921 .. The court held that boy under 14 cannot be liable
for sexual offences
 R V Gorrie (1918) “Lubeck Apple Proof”- Money V Apple
 or previous commission of crime
 Those b/t 14-21- During this age the child may know right
from wrong long before he knows how to make a prudent
speculation or a wise will ( Not to impose imprisonment
on any person less than 21 unless there was no other
punishment). In Crime and Disorder Act, 1998.. Parliament
abolished the rebuttable presumption.
 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 the nature and
consequences of his conduct on that occasion.
 In English law – Homicide Act, 1957 in substitution of
Children & Young Person Act, 1933 and Criminal
Justice System, Act 1948 ( This Act did not allow
Sentence of Imprisonment for any person below 17
years) now replaced by Murder ( Abolition of Death
Penalty Act, 1965)- Death Penalty cannot be imposed
to any person who appears to be below 18 yrs. But
can be detained and send to secretary of the state to
take necessary step
 P was born in 1993. His behaviour and
development gave rise to concern when he was
only 4. At the age of 5, he was referred to the
Department of Child and Family Psychiatry. At
the age of 7, he was diagnosed as having
Attention Deficit Hyperactivity Disorder (ADHD)
and was prescribed Ritalin.
 In 2002, he was assessed as having special
educational needs. In 2003, by which time he was
10, it was noted that, despite his medication, his
behaviour was not well controlled.
 Nga Tun Kaing ( 1943) In India a child of
12 yrs can be convicted of rape
 Whereas in Eng – The child below 14
cannot be made liable for rape , but can
be liable for Sexual Assault ----- So the
Sexual Offences Act, 1993 now provides
for the abolition of this presumption in
criminal law --- for incapable of
commission of Sexual intercourse
( Waite 1892)
 The accused had injured the victim with a
stab wound . He was taken to hospital and
treated. When the wound was completely
healed, the victim was treated with
antibiotics, that was mistaken
administered and later caused death. The
cause of the death was reasoned to be
broncho-pneumonia. Can the accused
be liable for causing the death of the
victim?
 Identify the Principle of Law- General
Principle
 Later identify the specific principle if any?
 Possibly identify the case or a similar case
 Issues that were discussed
 Grounds of circumstances and question
decided by the court of law
 Identify your answer for the questions with
above reason and other case laws relating
to this principle
 Principles of Criminal Liability
 Causation-
 In causation “ But for”
 Where another person has intervened
 R V. Jordon.... You can add related cases for
substantiating your answer
 Was he convicted or not....
 Conviction was quashed , as the death was
not caused due to the stab wound that had
caused penetrating the abdominal wound, but
for the wrong administration of treatment .. As
it was known through the additional evidence
that was allowed to be presented.