Ria Tandon, Research Associate
DIFFERENCE IN LIABILITY IN GENERAL EXCEPTION
Criminal liability has been clearly defined by the lexicon dictionary as something where there is a presence of accountability and responsibility to the other person by the ways like that of criminal sanction ((The Lexicon, 3 rd edition)). Through this paper the author wishes to bring forth the meaning the liability with reference to exceptions like intoxication, mistake, legally abnormal person and compulsion.
The provision of the exception cases are dealt with the Indian Evidence Act section 105 which talks about the burden of proving that the case of the offender comes under the exceptions. It states that when a person has been accused of some offence, then the burden to prove the circumstances of the offence to fall under the criteria of exception in Indian Penal Code, or any proviso ((Anthony F., Law of Evidence, pp-337, Dhingara and Company , Patna Law House.))present in that code lies on him.
s in general- In Halsbury’s Laws of England ((4 th ed, Vol XI ,Para 19, Page 22.)), it is explained as follows – The general principle when it comes to common law is that the prosecution has to prove the guilt of a defendant beyond all the reasonable doubt; it is not upon the defendant so as to establish his innocence. While when it comes to the justification in the common law, such things like accident , consent , compulsion, drunkenness, self defense , the burden of proving all this lies on the prosecution. The burden of proving the insanity lies with the defense ((Raghavan V.V, Law Of Crimes, 3 rd ed, pp-127, Orient Law House.)).
Whatever be the position of the enactments of the Indian Evidence Act earlier , section 103 and 105 of the Evidence places the burden of proof on the accused himself. It is not solely on the to prove his innocence, he has to also base his arguments on basis of the proof provided by the prosecution. It is upon the court to decide whether the evidence provided by the defense was falling under the ambit of the exception ((Mst. Anandi v. Emperor, 24 Cr Lj 225.)).
Private defense or self defense of personal property is of the most prime importance to be discussed when we speak of the general defenses. Self defense is known to be the clearest of all the laws: and this very fact they didn’t make it. When we talk about the mental capacity, then in this case insanity is taken to be a valid defense. General exception is found ((Ratanlal and Dhirajlal, Law of Crimes, 23 rd ed, pp-191, Bharat Law House PVT . Ltd))to be in the law where it is developed with respect to the state of mind of the person who commits an offence because mental element is of great importance.
Duress or The act of compelling or the state of being compelled ; the act of driving or urging by force or by physical or moral constraint; subjection to force. The compulsion which will excuse a criminal act must be present, immediate and impending and of such a nature as to induce a well- grounded apprehension of death or serious bodily harm. To constitute ((Henry Campbell Black, Black’s Law Dictionary, 5 th ed, pp-260, West Publishing Company))“compulsion” or coercion rendering payment involuntary, there must be some actual or threatened exercise of power possessed, or supposedly possessed, by payee over payer’s person or property, from which payer has no means of immediate relief except by advancing money. This has been stated as the meaning of compulsion by Black’s Law dictionary.
The accused who is forced in committing a crime claim at times compulsion as a defense. Compulsion gives rise to four major ((Chandrasekharan Pillai K.N. , General Principles of Criminal Law , pp- 264, Eastern Book Company))problems like (1) what kind of crime can be excused under compulsion? (2) What are the ingredients of compulsion? (3) How close would the commission of a crime be to the coercion which takes place? (4) A person is of the honest belief that in a threat sufficient or it is necessary for a belief to be reasonable?
The Penal Code has basically incorporated the English position
Acts through which a person is compelled
Section 94 of the Indian Penal Code reads Act to which a person is compelled by threats- Except for the murder and the offences which are committed against the state. There are two instances where a person will liable or not based on the two situations. Firstly -Where a person because of the threat like being beaten up , join a group of violent people , knowing their character , cannot take the defense of being forced and will be held liable for the act. Secondly- A person who is being compelled by a gang of dacoits ((Available at http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11§ions_id=2769))and is threatened by the threats of his death to do an illegal act as stated by the statutes..
Murder is defined under section 300 of the IPC. The defense with respect to concerion or compulsion cannot be applied under this aspect when a person under a fear of death which is sudden or instant in manner. Any other offence which is found to be against the state including the factor of culpable homicide wherein the intention is not of murder but is committed because of threat is considered to be under the protection.
Under the fear of death that is instant in nature will only be considered as a valid point for the defense under the exception duress or compulsion and not fear of distant.
The IPC (Amendment) Bill, 1972 ((Available at http://www.shareyouressays.com/118500/section-94-of-indian-penal-code-1860-explained.))vide clause 31 had suggestion of widening the ambit of the scope of section 94 , so as to include point of the physical hurt of the victim as well the threat to his / her family but this suggestion was not take up .
For understanding the liability in case of intoxication we basically deal with two sections 85 and 86 ((Section 85 and 86 of Indian Penal Code))which talk about intoxication in IPC . Section 85 states that a person commits a crime without knowing the nature of act under the influence and the wrong committed by him without his knowledge about the thing which intoxicated him. Section 86 talks about the aspect where a person has the intention and full knowledge about the act and he will be held liable whether he does it under intoxication or he does it when he doesn’t know the thing which intoxicated him.
Intoxication is basically by way of consumption of alcohol or drugs which affect the person’s judgment power, perception and the self-control. These things may cause a person to commit crime.
The attitude ((Chandrasekharan Pillai K.N. , General Principles of Criminal Law , pp- 267, Eastern Book Company.))of courts in the Common law countries like India or UK has been ambivalent. In theory they detect that there is no element of mens rea in a crime committed by a drunk person. Though Drunkness doesn’t serve any good to the society at large but Criminal Law distinguishes it as voluntary intoxication and involuntary intoxication. Though voluntary intoxication is never a but always the aspects of mens rea is seen.
MISTAKE OF FACT
Mistake of Fact ((Id at p. 274))can be taken as a defense only when it helps in negating the material elements in the crime. Mistake prevents a person from forming mens rea for example when the accused mistakes women’s consent for sexual intercourse. The mistake of fact leads to the distortion of the surrounding of a crime scene where the offender believes that he is being attacked while in the real sense he is being arrested lawfully.
Section 79 of IPC explains the act which is justified by the person based on mistake of fact made by him which is in the rightful justification by the law.
Illustration so as to explain is A sees Z committing an Act of murder as it seem to A . Hence A in good faith seizes Z in order to bring the act of Z before the proper authorities. So in this case A has not committed any offence per se but it can seem as if he committed it in self.
This is kind of analogous of section 76 ((Section 76 of the Indian Penal Code))which talks about the fact that person who commits some act will not be liable for it if there is a mistake of fact and not the mistake of law with reference to the act he believes is bounded by law.
A person will be justified in doing an act even the following condition (1) When his or her country is between war. (2) Where is some kind of destruction as like rebellion and (3) When the act is done by the state based on the instructions from the Centre or by the subsequent satisfaction ((Forester, 12 BLR (SC) 12; See also Kamatchi Bai Sabeha, 13 Moor PC Cases 22; Hari Bhanji, 5 Mad 273.))or the when the Martial Law ((Channappa Shantirappa V Emperor, AIR 1937 Bom 57.))is promulgated.
Section 79 makes offence as a non-offence, only on the fact when the offending turns to an act which can be justified by Law or in bona fide intention it is seen to be in the mistake of fact something which is to be justified ((Raj Kapoor, AIR 1980 SC 605 1980 Cr LJ 436: 1980 UJ (SC) 180.)).
LEGALLY ABNORMAL PERSON
The definition of the term legally abnormal person is not very clear but here we take insanity as abnormal attributes since Insanity has been defined by Black’s Law Dictionary as a social or legal term rather than a medical condition in this case. The person is seen to be unfit to enjoy liberty of action since his actions are not reliable.
Insanity as a to Crime
There are various ways by which court tests the criminal liability of a person. The test is provided under the Model Penal Code ((Black’s Law Dictionary, 5 th ed))where it states that a person is not responsible for criminal conduct if during the time of the conduct because of the mental illness or that he lacks the proper thinking capability.
The basis which is looked after when it comes to the aspect of Insanity as an excusatory is based on the assumption that the offender does not possesses the element of malice aforethought ((This means that the offender does not have the capacity to entertain a guilty before committing the act)). The person does not possess a normal working mind. Hence it is very clear fact that the person does not voluntarily commit the particular act. However these acts surely affect the society at large. The criminal law has taken this issue very seriously so that is why it has made some special provisions which are govern the punishment and the criminal liability of the such people who are seen to be abnormal.
The element of morals is totally absent when it comes to abnormal person since they lack the “ free will” and the autonomy which is in possession of the law. There is really no point in granting punishment to the offenders since they are unlikely to understand any command of law covering the wrongful act committed by them.
Through this paper the author tries to bring forth the various instances which exists in the different exceptions of the criminal Law. Paper answers the incidents like Intoxication where the liability of a offender lies where the stress lies on the knowledge of the act done again it can same be as mens rea .While on the other hand a person can take protection intoxication too. Then when we talk about abnormal persons wherein a person of unstable mind is taken to be safe from the liability of the criminal punishment. Although both of these exceptions are against the public Mistake of facts is can be taken as a while in case of the mistake of law is not considered as a . In case of compulsion where the person is under threat of some person with regards to his instant death without knowing the outcome of act is held liable.