SASI K.G.
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.
This section comes
under Section 105 of the Indian Evidence Act, 1872. The legal presumption of
“doli capex” also is applicable here. Hence this is rebuttable. There is burden
on the accused to prove the following.
1.
The accused is
between seven and twelve years of age
2.
The accused has
not attained sufficient maturity of understanding to judge the nature of his
conduct at the time of the commission of the act.
3.
The accused has
not attained sufficient maturity of understanding to judge the consequences of
his conduct at the time of the commission of the act.
The supreme Court
has held that, “In the case of child offenders, current penological trends
command a more humanitarian approach. Under the
Penal Code, an infant under seven is
conclusively presumed to be incapable of committing crime. At this age he is
not endowed with any discretion to distinguish right from wrong (Section
82). Even a child between seven and
twelve who may not have attained sufficient maturity of understanding to
entertain a criminal intent (doli incapax), is presumed to be incapable of
committing an offence (Section 83)[lxxviii].”
The Supreme Court in
Hiralal Mallick v.
State Of Bihar[lxxix]
has remarked, “When a teenager, tensed by
his elders or provoked by the stone-hit on the head of his father, avenges with
dangerous sticks or swords, copying his brothers, we cannot altogether ignore
his impaired understanding, his tender age and blinding environs and
motivations causatory of his crime. It is common ground that the appellant was
twelve years old at the time of the occurrence. At common law in England, as
noticed by Archbold in Criminal Pleading, Evidence and Practice, a child under
14 years is presumed not to have reached the age of discretion and to be doli
incapax; but this presumption may be rebutted by strong and pregnant
evidence of a mischievous discretion... for the capacity to commit crime, do
evil and contract guilt, is not so much measured by years and days as by the
strength of the delinquent's understanding and judgment. Cross & Jones in
'An Introduction to Criminal Law' state : ‘It is conclusively presumed that no
child under the age of ten years can be guilty of any offence; a child of ten
years or over, but under the age of fourteen, is presumed to be incapable of committing
a crime, but this presumption may be rebutted by evidence of 'mischievous
discretion' i.e., knowledge that what was done was morally wrong[lxxx].’.
Cross & Jones further state : "The rebuttable presumption of innocence
in the case of persons between the age of ten and fourteen is still wholly
dependent on the common law. The Crown cannot, as in most other cases, rely on
the actus reus as evidence of mens rea; other evidence that the child knew it
was doing something morally wrong must be adduced[lxxxi].”
84. 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.
Section 105 of the
Indian Evidence Act, 1872 is attracted here. Illustration (a) there in has a
specific reference to unsoundness of mind.
Daniel M'Naghten fired a pistol at the back of Peel's
secretary, Edward Drummond, who died five days later. The House of Lords asked a panel of judges, presided
over by Sir Nicolas Conyngham Tindal, Chief Justice of the Common Pleas, a series of hypothetical questions
about the defence of insanity. The principles expounded by this panel have come
to be known as the M'Naghten Rules, though they have gained any status
only by usage in the common law. The rules so formulated as M'Naghten's Case
1843 10 C & F 200 have been a standard test for criminal liability in
relation to mentally disordered defendants in common law jurisdictions ever since, with some
minor adjustments.
“the jurors ought to be told in all cases that every man is to be presumed
to be sane, and to possess a sufficient degree of reason to be responsible for
his crimes, until the contrary be proved to their satisfaction; and that to
establish a defence on the ground of insanity, it must be clearly proved that,
at the time of the committing of the act, the party accused was labouring under
such a defect of reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know it, that he did not
know he was doing what was wrong[lxxxii].”
While dealing with the provision, Supreme Court observed in the case of
Dahyabhai Chaganbhai Thakker v. State of Gujarat[lxxxiii],
that there is a rebuttable presumption that the accused was not insane when
he committed the crime in the sense laid down by Sec. 84, IPC. The accused may
rebut it by placing before the Court all the relevant evidence, oral,
documentary or circumstantial, but the burden of proof upon him is no higher
than that which rests upon a party to civil proceedings.[lxxxiv]
Supreme Court in Sherall Walli Mohammed v. State of Maharashtra[lxxxv]
has held that the mere fact that no motive has been proved why the accused murdered his wife and child or the fact that
he made no attempt to run away when the
door was broken open would not indicate
that he was insane or that he did not have
necessary mens rea for the offence. Mere abnormality of mind or partial delusion, irresistible impulse or
compulsive behaviour of a psychopath
affords no protection under Section 84
as the law contained in that section is still squarely based on the outdated Naughton rules of 19th
Century England. The provisions of
Section 84 are in substance the same as that laid down in the answers of the Judges to the
questions put to them by the House of Lords, in M Naughton's case.[lxxxvi]
Behaviour, antecedent, attendant and
subsequent to the event, may be relevant in finding the mental condition
of the accused at the time of the event, but not that remote in time.
Section 105 of Evidence Act lays down three propositions; firstly, that
the prosecution case shall be judged on the presumption that no exception
existed; secondly, that presumption is rebuttable, and thirdly, that
the fact, if any, sufficient to rebut that presumption has to be proved by the
defence. That being so, the moment that presumption is rebutted by the defence
and the Court is brought to a point where it becomes doubtful of the fact or
when it cannot positively hold that the prisoner was then not of unsound mind
and that he was capable of showing the nature of the act alleged against him,
the onus under Sec. 105 has to be taken as discharged; for by reason of the
neutralization of the force of presumption, the prosecution is thrown back to
its position where it has to discharge its onus beyond reasonable doubt.[lxxxvii]
In other words, defence has only to demolish the aforesaid presumption laid
down against the prisoner under Sec. 104 and not to prove beyond reasonable
doubt the opposite of that presumption. This question of onus in the case of
plea based on insanity directly came for discussion in the case of Sodeman v.
R.[lxxxviii] In that case Viscount Hailsham, L.C. observed:
"The other point is that the jury may have been misled by the Judge's
language into the impression that the burden of proof resting upon an accused
to prove insanity is as heavy as the burden of proof resting upon the
prosecution to prove the facts which they have to establish. In fact, there is
no doubt that the burden of proof for the defence is not so onerous. It has not
been very definitely defined. The Canadian case of R. v. Clark[lxxxix]
was referred to, but even there the Judges were not able to find a very
satisfactory definition, but it is certainly plain that the burden in case in
which an accused has to prove insanity may fairly be stated as not higher than
the burden which rests upon a plaintiff or defendant in civil
proceedings."
This case, therefore, also lays down that the onus under Sec. 105, Evidence
Act, means the weighing on one side of the presumption laid under it and on the
other the facts relied upon by the defence to rebut that presumption.[xc]
An insane person is prima facie incompetent to plead insanity and
indeed the very plea, if taken, would establish his sanity. As for the failure
of the accused do adduce evidence to prove insanity, though no doubt the burden
is on the accused to prove the exception, of which he claims the benefit, it is
now well accepted that even if he lets in no evidence of his own, his case can
be spelled out from the circumstances appearing in the prosecution evidence.[xci] The
law requires that where an accused person pleads an exception, he has to prove
it. There must be some corroboration, direct or indirect, of the statement of
the accused person.[xcii]
In State Of Assam vs Inush Ali[xciii],
the Gauhati High Court has held that "Irresistible
impulse" is perhaps a defence Under Section
84 IPC when on account of such
impulse the accused is incapable of knowing the nature of the act he is doing and
what he is doing was either wrong or contrary to law. Such impulse or abnormal
urge to perform certain activity due to mental disease might be covered by Section
84 IPC Section 85 envisages creation
of force of impulse by reason of intoxication when the doer 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. This is another form whereby irresistible impulse is
created by intoxicant which destroys the reasoning faculty of the taker.
However, application of the defence need be considered if the appellant has
made out a prima facie case of irresistible impulse.”
The English law
recognizes two kinds of insanities namely, 1. Dementia naturalis corresponding
to idiocy and 2. Dementia adventitia or dementia accidentalis signifying
general insanity as it occurs in persons who have once enjoyed reasoning power.
However, it is also noteworthy that the insanity at the time of the commission
of the act alone shall be considered, but not the insanity at any past or later
instance.
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.
Section 105 of the
Indian Evidence Act, 1872 is attracted here.
The authority on the extent to which drunkenness can be pleaded in
mitigation of the offence
is dealt with in Director of
Public Prosecutions v. Beard,[xciv]
a decision of the House of Lords. The three propositions which were there
laid down by Lord Birkenhead, I.C.; have been adopted
in the Court in India.[xcv] These
propositions are : (1) that insanity, whether produced by drunkenness or
otherwise, is a defence to the crime charged, (2) that evidence of drunkenness
which renders the accused incapable of forming the specific intent essential to
constitute the crime should be taken into consideration with the other facts
proved, in order to determine whether or not he had this intent, and (3) that evidence of drunkenness merely establishing that his mind was affected
by drink so that he more readily gave way to some violent passion, does not
rebut the presumption that a man intends the natural consequences of his act.[xcvi]
Supreme Court in Bablu alias Mubarik Hussain
v. State Of Rajasthan[xcvii]
has observed that, “Section 85 IPC deals with act of a person incapable of judgment by reason of
intoxication caused against his will. As the heading of the provision itself
shows, intoxication must have been against his will and/or the thing which he
intoxicated was administered to him without his knowledge. There is no specific
plea taken in the present case about intoxicant having administered without
appellant's knowledge. The expression "without his knowledge" simply
means an ignorance of the fact that what is being administered to him is or
contains or is mixed with an intoxicant. The defence of drunkenness can be
availed of only when intoxication produces such a condition as the accused
loses the requisite intention for the offence. The onus of proof about reason
of intoxication due to which the accused had become incapable of having
particular knowledge in forming the particular intention is on the accused.
Basically, three propositions as regards the scope and ambit of Section 85 IPC are as follows:
(i) The insanity whether produced by
drunkenness or otherwise is a defence to the crime charged;
(ii) Evidence of drunkenness which renders
the accused incapable of forming the specific intent essential to constitute
the crime should be taken into account with the other facts proved in order to
determine whether or not he had this intent; and
(iii) The evidence of drunkenness falling
short of a proved incapacity in the accused to form the intent necessary to
constitute the crime and merely establishing that his mind is affected by drink
so that he more readily give to some violent passion, does not rebut the
presumption that a man intends the natural consequences of his acts.”
86. 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.
Section 86
reiterates that an accused who has voluntarily subjected himself to
intoxication cannot claim protection for lack of mens rea and also the
exception under Section 85 of IPC. Even if the accused is at a stage of not
being able to understand the nature of the action, he is not presumed to be
innocent, as the actus rea was in consequence to the willful intoxication.
In Venkappa Kannappa Chowdari vs State Of
Karnataka[xcviii],
Karnataka High Court has held that, “A
person under intoxication can be excused if he had committed any offence
provided intoxicating material was given to him without his knowledge and
against his consent and a person cannot become himself drunk with liquor and
commit an offence and then come and say that he had consumed the liquor and,
therefore, the benefit of Section 85
should be given to him. It is something like devil quoting the scriptures.”
The Supreme Court in The Public Prosecutor v. Budipiti Devasikamani[xcix]
has observed that, “The wording of Section
86 of the Indian Penal Code lends
some support to the argument advanced before us. That section lays down that,
in certain classes of cases, the intoxicated person shall be liable to be dealt
with as if he had not been intoxicated; but it does not provide that an intoxicated
person shall be dealt with as if he had the same intent. The second part of the
section speaks of knowledge only and omits any reference to intent. Whether
this omission is intentional or not, as pointed out by Mr. Mayne, it may be due
to the fact that in the majority of cases the question of intention is merely
the question of knowledge. If the accused knew what the natural consequences of
his acts were, ordinarily he must be deemed to have intended to cause them. See
Re Mandru Gadaba (1914) I.L.R. 38 Mad. 479 per Ayling, J. Though ordinarily
intention is to be inferred from knowledge, there may be cases where intent
must be found as a fact and cannot be assumed in which cases voluntary
drunkenness may be relied on to show that the required 'intent' is absent. In
England it will be a question in such cases for the Jury to decide whether
having regard to the mental condition of the prisoner, the general inference of
intention from knowledge can reasonably be drawn. This, we think, is the utmost
that could be said in favour of this contention. Even according to this
restricted interpretation in this case, the evidence makes it clear that, in
spite of the ganja smoking, the accused had the requisite criminal intent,
because as soon as he put the torch to the thatch he ran away. He knew that the
act he was doing was a wrongful one and from this knowledge we can assume that
he must have had the criminal 'intent' requisite for the offence.”
Thus mens rea is
equated to knowledge in Section 86. The law presumes against the voluntarily
intoxicated person and refuses to give the benefit of lack of knowledge and
mens rea. Thus for claiming any exception under IPC, once it is proved by the
prosecution that the accused was under intoxication, the onus probandi is on the
accused to prove that the thing which intoxicated him was
administered to him without his knowledge or against his will. If he fails, he
fails in claiming exception.
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.
Section 105 of the
Indian Evidence Act, 1862 is applicable here. Thus, if the accused claims
exemption under this section, it is his
burden to prove the following ingredients of Section 87 of Indian Penal Code,
1860.
1.
Both the accused
and hurt persons should be above eighteen years of age
2.
There has been
consent of the hurt person, whether express or implied to suffer that harm
3.
The accused had
no intention to cause death or grievous hurt
4.
The accused did
not know that his action might cause death or grievous hurt
5.
The accused has
acted in good faith
In the case of the
illustration, A has the burden to prove the following facts.
1.
A ans Z are above
eighteen years of age
2.
There must be an
implied or express consent of Z for the fencing
3.
There has been consent
of Z, whether express or implied to suffer that harm
4.
A had no
intention to cause death or grievous hurt to Z
5.
A did not know
that his action might cause death or grievous hurt to Z
6.
A has acted in
good faith
88. Act not intended to cause death, done
by consent in good faith for person's benefit.--Nothing, which is not intented 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.
Section 105 of the
Indian Evidence Act, 1862 is applicable here.
For claiming
exception under Section 88 of IPC, the accused has to suffer the burden of
proof to prove,
1.
The accused has
not intented to cause death
2.
The harm caused
to the affected person, or intented to cause, or likely to case was done for
the benefit of the person on whom harm is caused, intented or likely to be
caused
3.
The act was done
in good faith
4.
That person has
given a valid consent, whether implied or express to suffer that harm or to
take the risk of that harm
5.
That person was
aware of the risks of the operation
In the case of the
illustration, A has the burden to prove the following facts.
1.
A has not
intented to cause death of Z
2.
The operation was
done for the benefit of Z
3.
The operation was
done in good faith
4.
Z has given a
valid consent to suffer the risks of the operation
5.
Z was aware of
the risks of the operation
It is also
noteworthy that where a kabiraj caused the death
of a patient by a clumsy surgical operation and claimed the benefit of Sec. 88,
Penal Code, held, it was for the defence, pleading the exception, to
show that the patient did accept the risk attending the operation, and, that
consequently, he was aware of it.[c]
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-
Provisos.-First.-That this exception shall not extend to the
intentional causing of death, or to the attempting to cause death;
Secondly.-That this exception
shall not extend to the doing of anything which the person doing it knows to be
likely to cause death, for any purpose other than the preventing of death or
grievous hurt, or the curing of any grievous disease or infirmity;
Thirdly.-That this exception shall not extend to
the voluntary causing of grievous hurt, or to the attempting to cause grievous
hurt, unless it be for the purpose of preventing death or grievous hurt, or the
curing of any grievous disease or infirmity;
Fourthly.-That this exception shall not extend to
the abetment of any offence, to the committing of which offence it would not
extend.
Illustration
A, in good faith, for his child's benefit without his child's consent, has
his child cut for the stone by a surgeon knowing it to be likely that the
operation will cause the child's death, but not intending to cause the child's
death. A is within the exception, in as much as his object was the cure of the
child.
Section 105 of the
Indian Evidence Act, 1862 is applicable here.
Section 89 of IPC is
an extension of Section 88, with the major deference that the harm is caused to
a minor child under twelve years of age and that the consent is given by the
guardian of that child and that the four provisos under Section 89 have to be
followed. As a minor child is involved, even if the guardian gives consent to
the person causing harm to harm the child, if the act itself is having illegal
nature, the doer of the harm cannot claim exception under Section 89 of IPC.
All the test of
Section 88 is applicable in this section in addition to the protection to the
minor.
In Appearance v.
Unknown[ci], Gujarat High Court has held that it is
universally felt that children can be corrected by correctional measures than
physical punishment and, therefore, the defence that the corporeal punishment
of children was covered by exceptions, as mentioned in Sections
88 and 89 of the Indian Penal Code, has no relevance at all.
In Parents Forum For Meaningful
Education v. Union Of India And Another[cii]
of Delhi High Court directed the State to ensure that children are not subjected to corporal
punishment in schools and they receive education in an environment of freedom
and dignity, free from fear.
Delhi District Court has also punished a vice principal of an
school for the offence of corporeal punishments to children, stating, “The
accused has followed the principle of Corporal punishment which has already
been declared null and void by the Hon'ble High Court of Delhi in CWP No.
196/98 in the matter titled Parents' Forum of Meaningful Education v. Union of India
& Ors. After
strucking of Rule 37 of Delhi School Education Rules, 1973, the accused has not
only committed the offence, but also committed the contempt of the Hon'ble High
Court of Delhi as well. No doubt, the offences committed by the accused are of
no such big on account of punishment prescribed by the law, but the offences
are big on account of humanity. The offences committed by the accused are not
against the complainant, but against a child, who was not in position to
protect himself from the clutches of the principal, who was his guardian at
that time.”
In the case of the
illustration, A has the burden to prove the following facts.
1.
A has not
intented to cause death of his child
2.
The act by A was
done for the benefit of the child
3.
The action of
having his child cut for stone by the surgeon was done in good faith
4.
The consent of A
was a legally valid consent.
5.
Z was aware of
the risks of the operation
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; or
Consent of insane person.-if the consent
is given by a person who, from unsoundness of mind, or intoxication, is unable
to understand the nature and consequence of that to which he gives his consent;
or
Consent of child.-unless the contrary
appears from the context, if the consent is given by a person who is under
twelve years of age.
Section 105 of the
Indian Evidence Act, 1862 is applicable here.
This Section deals
with the nature of the consents given under various sections of IPC, such as in
Sections 88, 89 etc. According to this section consent shall not be given under
fear of injury or under misconception of fact. Such a consent shall not be considered
as a consent under IPC. Consent given by an insane person or a child under
twelve years shall also not be considered as consent under IPC.
As the above
provisions are of a restricting nature of the exceptions under IPC, the
prosecution may make use of these provisions against such claims for
exceptions. Thus the onus probandi is on prosecution, and if prosecution proves
such defects of consent beyond any reasonable doubt, the accused shall fail in
his claim of exceptions under Sections 88 and 89.
A Division Bench of
the Madras High Court in 1913 in In Re: N. Jaladu[ciii]
considered the scope and amplitude of the expression 'misconception of fact'
occurring in Section 90
in the context of the offence of kidnapping under Section
361, IPC. The 2nd accused in that case obtained the consent of
the girl's guardian by falsely representing that the object of taking her was
for participating in a festival. However, after the festival was over, the 2nd
accused took her to a temple in another village and married her to the 1st
accused against her will. The question arose whether the guardian gave consent
under a misconception of fact. The High Court held that there was no consent.
The Supreme Court in
Deelip Singh alias Dilip Kumar vs State Of Bihar[civ]
has held that, “The factors set out in the first part of Section
90 are from the point of view of the
victim. The second part of Section 90
enacts the corresponding provision from the point of view of the accused. It
envisages that the accused too has knowledge or has reason to believe that the
consent was given by the victim in consequence of fear of injury or
misconception of fact. Thus, the second part lays emphasis on the knowledge or
reasonable belief of the person who obtains the tainted consent. The
requirements of both the parts should be cumulatively satisfied. In other
words, the Court has to see whether the person giving the consent had given it
under fear of injury or misconception of fact and the Court should also be
satisfied that the person doing the act i.e. the alleged offender, is conscious
of the fact or should have reason to think that but for the fear or
misconception, the consent would not have been given. This is the scheme of Section
90 which is couched in negative
terminology. Section 90
cannot, however be construed as an exhaustive definition of consent for the
purposes of the Indian Penal Code. The normal connotation and concept of 'consent' is
not intended to be excluded. Various decisions of the High Court and of this
Court have not merely gone by the language of Section
90, but travelled a wider field,
guided by the etymology of the word 'consent'.”
In Uday vs State Of
Karnataka[cv],
the Supreme Court has held that, “There
is yet another difficulty which faces the prosecution in this case. In a case
of this nature two conditions must be fulfilled for the application of Section
90 IPC. Firstly, it must be shown
that the consent was given under a misconception of fact. Secondly, it must be
proved that the person who obtained the consent knew, or had reason to believe
that the consent was given in consequence of such misconception.”
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 inexpediently 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.
This Section acts as
a restriction to sections 87, 88 and 89 which enable the accused the benefits
of exceptions on the ground of consent. Section 91 thus excludes offences
independently of any harm such as causing miscarriage etc, from the purview of
claiming exceptions. Thus having a nature of supporting the prosecution, it is
the burden of the prosecution to prove that the offence for which the accused
has raised the benefit of exception under IPC, is one independently of any harm
which it may cause.
In the case of the
illustration, it is the duty of the prosecution to prove beyond any reasonable
doubt a charge under Chapter XVI of IPC under one or more sections from Section
312 to Section 316. Even if the prosecution does so, the accused has a further exception
to claim by taking the burden of proving that the offence has been committed to
save the life of the woman.
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.
Section 105 of the
Indian Evidence Act, 1872 is applicable here. The exception provided here is on
matters of emergency that necessitates the person who acts to act without
obtaining consent either due to the inability or incapacity to give consent.
The burden of proof
for claiming the exception is with the person who acts without consent. He has
to prove among others, that
1.
The act done was
done for the benefit of the person suffering harm
2.
The person
suffering harm was in danger and any inaction may be fatal to him
3.
The person
suffering harm was incapable of giving consent, and no guardian or other
person in lawful charge of him from whom it is possible to obtain consent in
time was not available
4.
The act was done in good faith
However, the prosecution may challenge the
claim of such exceptions on the ground of the above said four provisos and the
burden of proof in that regard shall be with the prosecution.
As far as the illustrations are concerned A in (a), A in (b), A in (c) and
A in (d) can claim the exceptions under IPC and the burden of proof as far as
the existence of exceptions concerned are with the accused persons.
The Explanation to Section 92 also provides that mere pecuniary benefit is
not benefit within the meaning of sections 88, 89 and 92. Thus the term
‘benefit’ as used in Sections 88, 89 and 92 should be construed accordingly.
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.
Section 105 of the
Indian Evidence Act, 1872 is applicable here. To claim the benefit of exception
the accused has to carry the burden to prove two things, namely,
1.
The communication
was made in good faith
2.
The communication
was made for the benefit of the person to whom it is communicated
As for the
illustration, the doctor has to prove that his action was in good faith and
that communication of his opinion that his patient cannot live was for the
benefit of the patient.
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.
Explantion 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.
Section 105 of the
Indian Evidence Act, 1872 is applicable here. It is the burden of an accused
other than for murder or any other offence punishable with death, of claiming
exception under Section 94, to prove that his action was under threats or fear
of instant death to himself or harm short to instant death. However a person
who has associated with the persons threatening him cannot get exception under
explanation 1, but a compulsion for an instance shall not take that right away
from him as in situations described in explanation 2.
As the construction
of the words in explanation 1 is negative in character, and as explanation 1
takes away the right of the accused, it is the burden of the prosecution to
prove beyond any reasonable doubt that the accused has associated himself with
the persons threatening him to do anything that is an offence by law.
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.
The maxim de minimis non curat lex, which means that the law
does not take account of trifles, is the foundation of Section 95, I.P.C. Technically, the exemption under
this section may not be termed as an acquittal on merit, as here, it is the
Court that finds that even though the accused might have committed offence, due
to the triviality of the same, the case is not furthered any more.
However, in Mrs. Rupan Deol Bajaj & Anr v. Kanwar Pal Singh Gill
& Anr[cvi],
Supreme Court held that Section 95 IPC cannot have any manner of application to an offence
relating to modesty of woman as under no circumstances can it be trivial.
A Full Bench decision of the Kerala High Court, in State of Kerala v. Vasudevan Nair[cvii]
has observed as, “Adulteration of food, even if it be of a slightest
extent, is not a trifling matter to the consumer as his Health is likely to be
injuriously affected in the long run but his continued consumption of such
food. Hence I respectfully differ from the view of the Madras High Court in
Varma's case 1971 Cri LJ 60 and hold that the provisions of Section 95, I.P.C. are not applicable to the offences
committed under the provisions of the Prevention of Food Adulteration Act.
08. Conclusion
The function of the
concept of burden of proof is to keep a balance of the conflicting interests of
the State, first to keep the presumption that everybody is innocent until
proved guilty by conferring the entire burden of proof in a criminal
proceedings with the prosecution, compelling it to prove the case of the state
beyond all reasonable doubt and secondly to take off the unnecessary burden out
of the shoulders of the prosecution and placing the same on the accused in
certain cases, where the presumption of law supports so, or having admitted the
omission or commission of the offence, the accused resorts to certain
exceptions to get exonerated.
It is also the
interest of the State to protect, women, children, insane, and other weaker
sections and to safeguard all bonafide actions and beneficial actions.
These are the
principles on which the concept of the burden of proof as applicable to the
general exceptions of Indian Penal Code, except those under Of the Right of Private Defence are concerned. However
these concepts are under evolutionary stage to address the needs of a developed
welfare State. The Imperial law denying protection to a child between twelve and
eighteen years under exceptions under Sections 82, 83 and 90 is an example.
NOTES
[lxxviii]
Kakoo vs The State Of Himachal Pradesh,
AIR 1976 SC 1991, 1976 Cri LJ 1545 : (1976) 2 SCC 215
[lxxix]
1977 AIR 2236 : 1978 SCR (1) 301
[lxxx]
R. V. Owen (1830) 4 C & P. 236
[lxxxi]
R. v. Kershaw (1902) 18 T.L.R. 357
[lxxxii]
https://en.wikipedia.org/wiki/M'Naghten_rules
[lxxxiii]
(1964)7
SCR 371 : AIR 1964 SC 1563
[lxxxiv]
Dyami
Ayatu v. State of Madhya Pradesh, AIR 1974 SC 216 at p. 218
[lxxxv]
1972 Cr.LJ 1523 (SC)
[lxxxvi]
(1843) 4 St. Tr. (NS) 847 : 1843 10 C
& F 200
[lxxxvii]
C.D.Field’s Commentary on Law on Burden of Proof, Page 442
[lxxxviii]
(1936)
2 All ER 1138
[xc] Kamala Singh v. State,
AIR 1955 Pat 209 at Pages 213-214
[xci] Chami v.
State of Kerala, AIR 1960 Ker 241 at pp. 241-242
[xcii]
Jairam Chandrabhan v. State of Bombay, AIR 1959
Bom 463 at p. 466
[xciii]
1982 Cri LJ 1044
[xciv]
(1920)
AC 479 : 89 LJK 437 : 122 LT 625 : 84 JP 129 : 36 TLR 379 : 57 SC LR 743 : 14
Cr. App. Rep. 159 : 64 SJ 340
[xcv] Vide Sheru v.
Emperor, AIR 1926 Lah 232: 94 IC 406 : 27 Cr. L. 630 : 7 Lah 50 : 27 PLR
294 : Judagi Mallah v. Emperor, AIR 1930 Pat. 168 : 130 Cr. C 264 : 121 IC 452 : 31
Cr. LJ 243 : 8 Pat 911 and Nga Sein Gale v. Emperor, AIR 1934 Rang 361 :
1934 Cr.C 1326: 152 lC 1054: 12 Rang 445
[xcvi]
Ramsingh
Sada Singh v. Emperor, AlR 1937 Nag 386 at p. 387: 172 IC 167
[xcvii]
AIR 2007 SC 697 : (2006) 13 SCC 116
[xcviii]
1996 Cri LJ 15, ILR 1995 KAR 2149, 1995
(6) KarLJ 544
[xcix]
(1928) 55 MLJ 228
[c] Sukarao
Kabiraj v. Empress, 14 Cal. 566 at pp. 568-69 ; see also in the
matter of Shibo Prosad Pandah, 4 Cal 124 : 3 Cal LR 122
[ci] CR.A/798/1996
[cii] 2001 (2) AD Delhi 20, AIR 2001 Delhi 212 : 89 (2001) DLT
705 : 2001 (57) DRJ 456
[ciii]
ILR 36 Madras 453
[civ] AIR
2005 SC 203
[cv] AIR 2003 SC 1639
[cvi] 1996 AIR 309, 1995 SCC (6) 194
[cvii]
1975 FAJ 36 : 1975 Cri LJ 97
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