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general exceptions part 2 - section 80 - 83

Section 80 -

it has the following primary requirements : 1) Act was done without criminal intention or knowledge

2) act was done by lawful manner by lawful means 3) act was done with proper care and caution (main essence of the section)

Section 80 protects an act done by accident or misfortunate 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. The primordial requirement of Section 80 is that the act which killed the other person must have been done "with proper care and caution".

In Bhupendrasinh A. Chaudasama v. State of Gujarat (1998 (2) SCC 603) it was held by Supreme Court that where the accused shot his own colleague at close range without knowing the identity of his target, the act smacked of utter dearth of any care and caution.

The amount of care and circumspection taken by an accused must be one taken by a prudent and reasonable man in the circumstances of a particular case. Where the act of the accused is itself criminal in nature the protection under Section 80 is not available. If the accused pleads exception within the meaning of Section 80 there is a presumption against him and the burden to rebut the presumption lies on him. (See K.M. Nanavati v. State of Maharashtra (AIR 1962 SC 605).

Section 81

Stephen's opines that under certain circumstances an act which would otherwise be an offence can be excused if the accused is able to show that he did the particular act to prevent a greater offence or some irreparable evil. The test is this : Accused must be confronted with with a situation involving a possibility of a great harm and he has no choice but to commit lesser offence in order to prevent a greater offence. Here the choice lies in two evils and accused has to prefer a lesser evil . (Southwark London Borough Council v. Williams (1971) CH 734)

Supreme Court of India

Mrs. Veeda Menezes vs Yusuf Khan And Anr on 31 March, 1966

The expression "harm" has not been defined in the 'Indian Penal Code: in its dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil. There is no warrant for the contention raised that the expression "harm" in s. 95 does not include physical injury. The expression "harm" is used in many sections of the Indian Penal Code. In ss. 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury. In s. 93 it means an injurious mental reaction. In s. 415 it means injury to a person in body, mind, reputation or property. In ss. 469 and 499 harm, it is plain from the context, is to the reputation of the aggrieved party. There is nothing in s. 95 which warrants a restricted meaning which counsel for the appellant contends should be attributed to that word. Section 95 is a general exception, and if that expression has in many other sections dealing with the general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression "harm" in s. 95 in a restricted sense.

Supreme Court of India

Dr. Suresh Gupta vs Govt. Of N.C.T. Of Delhi & Anr on 4 August, 2004

"Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."

Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.

This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence.

For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.

Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.

To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.

(Supreme Court held - In present case, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.)

Dhania Daji v Emperor (1868)-Facts- The accused was a toddy tapper. He observed that toddy was brewing stolen from the trees regularly. To prevent it, he poisoned toddy in some of the trees. He sold toddy from other trees. However, by mistake the poisoned toddy was mixed with other toddy, and some of the consumers were injured and one of them had died. He was prosecuted. He took the plea of Section 81.

The Privy Council did not accept the contention of the just necessitas, as mixing poison was done by the accused intentionally and also with the knowledge that it would cause grave danger to the people. The accused was punished under section 328.

Gopal Naidu v State (1922)46 Mad 605-The accused was a rich person in a village . He drank and created public nuisance and also grave danger to the public. The village Magistrate arrested him. The accused filed a case against the village Magistrate.

The court upheld the act of villager Magistrate as it was necessary to protect the people from the grave danger of the drunken accused.

In R v Laughman an Australian case, it was held by the Australian Supreme Court that “Necessity does not justify escape from prison in apprehension of danger to life-Conviction upheld-

The following principles of Doctrine of Necessity were laid down by the Australian supreme

court in this case:

i) The law recognizes the defence of necessity.

ii) The defence of necessity involves the following elements:

a) The criminal act must have been done only to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon whom he was bound to protect.

b) The accused must honestly believe, on reasonable grounds that he was placed in a situation of imminent peril.

c) The acts done to avoid peril must not be out of proportion to the peril to be avoided.

d) The harm to be justified must have been committed under the pressure either of physical forces or exerted by some human agency so that an urgent situation of imminent peril has been created.

e) The accused must have acted with the intention of avoiding a greater harm or so as to have made possible the preservation of at least an equal value.

f) There was open to the accused no alternative other than that adopted by him to avoid greater harm or to conserve the value.

g) The doctrine so enunciated must however be carefully circumscribed. Else necessity would open the door to many an excuse. The accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. The test is would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid peril?

h) Self-defence, is not capable of being brought within the general description of a defence of necessity, is at least analogous to it, but in comparing the kind of necessity which require self-defence with the necessity which require escape from prison there is of course, an essential difference in that in the former the accused will always or almost always attack the person threatening him whereas in a case where a prisoner feels necessity as a justification for escaping, the criminal act which he commits is not directed to the person making the threat.

In United States v Holmes it was held that “Necessity does not justify indiscriminate throwing of passengers overboard to save sinking boat”(Circuit Court, Pennsylvania-United States-1842) it was further held in this case that ”Where the ship is in danger of sinking, but all sustenance is exhausted, and the sacrifice of one person is necessary to appease the hunger of others, the selection is by lot. This mode is resorted to as the fairest mode and in some sort, as an appeal to God for selection of the victim. The judge further felt that if lots are drawn and the victim resists’ force’ May be employed to coerce submission’.

London Borough of Southwark v Williams (supra)- In this case defendants, two homeless families, were unable to obtain housing. With the help of squatters association, they made an orderly entry into a house owned by the borough council. The council obtained an order for possession. The defendants relied inter alia on the defence of necessity.

Court held that , the doctrine of necessity so enunciated must however be carefully circumscribed. Else necessity would open the door to many an excuse. It was for this reason it was not admitted in the case of Dudley and Stephens…,They were held guilty of murder. Similarly when a man who is starving enters a house and takes food in order to keep himself alive, the law does not admit the defence of necessity. It holds them guilty of Larceny.

Queen v Dudley and Stephens (1884) 14 QBD 273 DC ) - In 1884, the respondents, with one Brooks, and the deceased, a boy between 17 and 18 years of age, the crew of a registered English vessel, were cast away in a steam on the High Seas. They had no supply of water or food. On the 18 th day prisoners spoke of their having families, and suggested it would be better to kill the boy so that their lives should be saved. Stephens agreed to the act, but Brooks dissented from it. Dudley, with the assent of Stephens, went to the boy, who was extremely weakened by famine, put a knife into his throat and killed him. The three men upon the body and blood of the boy for four days; after which the boat was picked up by a passing vessel, and the prisoners were rescued, still alive.

Point raised by defence - If the men had not fed upon the boy, they would probably have not survived to be picked up and rescued, but would within the four days have died of famine. The boy, being in a much weaker condition, was likely to have died before them. As the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. Under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. There was no appreciable chance of saving life except by killing someone for the others to eat. Assuming any necessity to kill anybody there was no greater necessity for killing the boy than any of the other three of them.

Court held: How far the conservation of a man’s life own life is in all cases and under all circumstances an absolute, unqualified and paramount duty. We are dealing with a case of private homicide, not once imposed upon men in the service of their Sovereign and in the defence of their country. 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 necessity.

But the temptation to the act which existed here was not just what the law has ever called necessity..,. To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it.

It is not correct, to say that there is an absolute or unqualified necessity to preserve one’s life…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’ It is not suggested that in this particular case the deeds were devilish. But it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. Hence the case is clearly a case of willful murder of the hapless boy and does not support the doctrine of necessity.

Section 82 and 83 is to be read with Juvenile Justice Act .

Section 83 - Malatia supplet octatum - Malice supplies the want of age.

The test is : whether child knew that what he was doing was seriously wrong and went beyond childish mischief ? Running away is not sufficient by itself to rebut the presumption of doli incapax , a naughty child would run away from his parents or teacher even though he committed no criminal act. ( A v. DPP (1991) COD 442 (DC) )

Mischievous discretion is the knowledge of wrongful nature of the act committed. It is to be seen if the child has sufficient maturity of understanding or not . This evidence of mischievous discretion can be gathered from facts such as , "whether the child was a precocious one , was brought up well or from a good social background. (B v. R (1958) 44 Cr App rep 1 .

Relevant conduct:-

The immediate actions of the child after the commission of the act.

The conduct of the child during the investigation process.

The nature of the act done by the child

Other similar and relevant factors.

In case the child is below 7 years of age, he will get a complete defense under 82 as he is absolutely doli incapax.

In case the child is above 7 but below 12, it has to be proved that he has not attained enough maturity to understand the nature or consequences of his act.

In cases the child is above 12, he will be governed by the Juvenile Justice (Care and Protection Act, 2000) and no defense on the pretext of age will be entertained.

Marsh v. Loader

A child was caught stealing a piece of wood from the premises of the defendant but was discharged on the basis that he was under 7 years of age.

Partap Singh v. State of Jharkhand

In this case, the question of the date which was to be reckoned in determining the age of the child was brought to the court. The court held that the date of the commission of an offence was the relevant date to determine the age of the alleged offender and not the date on which the accused is brought before the court.

Hirelal Mallick v. State of Bihar

In this case, a 12-year-old boy along with two other people was convicted of murdering a person. The High court convicted the child under section 326 of IPC based on the circumstances revolving around the crime. The 12-year-old had struck the neck of the deceased with a sword and ran away after the act. There was no evidence to suggest that he did not have the maturity or understanding of the consequences of his act. And therefore, the conviction under s326 of IPC was upheld.

Ulla Mahapatra v. State

A boy of 11 years threatened to cut the deceased into pieces and then pursued his murder and . It was held by the court that he had the knowledge and his actions lead him to what he intended to do , it showed his sufficient maturity of intellect.

Calcutta High Court

Santosh Roy vs State Of West Bengal on 13 September, 1991

Section 82 provides that nothing is an offence which is done by a child under 7 years of age. An infant under that age is, by presumption of law, doli incapax. Section 83 provides that nothing is an offence which is done by a child above 7 years of age and under 12, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. The Indian Penal Code provides no protection from culpable liability on ground of tender age to one who is aged 12 years or more. In a child's life the period between 7 and 12 years of age is rather the twilight period of transition to a minimal workable level of understanding of things in the firmament of worldly affairs. And that is why both the Indian Penal Code and the Oaths Act have made special provisions for children below 12 years in respect of matters dependent on a minimal power of understanding. Normally therefore when a child below 12 years of age appears before a Court as a witness, the Court should before administering oath or affirmation to him satisfy itself by putting appropriate questions that he can understand ordinary questions and give intelligible and rational answers thereto, that he has a general idea of what is right and what is wrong, that he understands the duty of speaking the truth as well as the nature of an oath or affirmation, etc. and keep a note of the same along with the Court's opinion about the testimonial competency of the witness and his fitness to take oath or make affirmation. Where however the witness appears to be aged 12 years or more such examination on the voir dire i.e. preliminary examination by the Judge before administering oath may not be necessary except where the Judge has reason to doubt his testimonial competency or where an objection is raised at the very beginning about such competency of the witness. Such objection may however be taken also during the continuance of the examination of the witness. But in the present case no objection regarding the testimonial competency of the witness was at all taken at any stage in the trial Court. The learned Trial Judge also never doubted the testimonial competency of the witness. Her evidence read as a whole also does not militate against her testimonial competency. Prudence however requires that in spite of testimonial competency the evidence of this witness falling within the age-group of 12/13 years should be studied cautiously and the question of credibility of her evidence should be very carefully considered. As we have already seen her evidence however does not suffer from any noteworthy infirmity and is also corroborated by other eye-witnesses as well as by circumstances including the prompt reporting of the culprit's name to the police.

(Supreme Court in K. M. Nanavati v. State of Maharashtra had to consider the question of burden of proof in the context of a defence based on the exception embodied in s. 80 of the Indian Penal Code. In that context the law is summarized thus:

"The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under s. 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception, if proved, affecting the proof of all or some of the ingredients of the offence: (see s. 80 of the Indian Penal Code)........................ In the third case, though the burden lies on the accused to bring his case within the exception the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence."

After giving an illustration, this Court proceeded to state:

"That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.................. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused." (1) [1962] Supp. 1 S.C.R. 567, 597, 598.) what is relevant for section 80 is also relevant for section 84.

. General Exceptions Part 02 - Sectio


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