Marrying again (Bigamy) during lifetime of husband or wife

Section 494 of the Indian Penal Code, 1860 deals with the offence of Marrying again during lifetime of husband or wife. The offence under above mentioned Section is known as Bigamy under English law. However, Section 494 does not apply to Muslim males who are allowed to marry more than one wife, but the same is applicable to Muslim women.

In order to constitute an offence under Section 494, of the Indian Penal Code, 1860; it requires;

An existence of the first wife or husband when the second marriage is celebrated;

At the time of the second marriage, there must be a previous marriage valid and subsisting. However, if the first marriage is not a valid marriage, then contracting second marriage will not constitute an offence under Section 494 ((Padi, AIR 1963 HP 16)).

Similarly, a Muslim woman marrying within the period of iddat period is not guilty of bigamy ((Abdul Ghani v. Azizu Huq, (1911) 39 Cal 409)). Further, it is essential to note that, a divorce dissolves a valid marriage and the parties obtaining such dissolution can remarry ((Santosh Kumari v. Surjit Singh, AIR 1990 HP 77)).

Notwithstanding the fact that, the personal law permits a Muslim male to contract four marriages, if the second marriage is contracted under the provisions of Special Marriage Act, 1954 vis-à-vis the fact that, he has a legally wedded wife who has been married to him under the Mohammedan Law, Section 494 has to claw at the erring male… Mohammedan Law does not take preference over Special Marriage Act, 1954… there being no saving clause for the applicant to purge him of the charges under Section 494… the applicant is liable to be punished under this Section ((Radhika Sameena v. SHO Habeabnagar PS, 1997 Cr. LJ 1655 (AP).)).

The second marriage being void by reason of subsistence of the first according to the law applicable to the person violating the provisions of this Section

Prima facie, the expression “whoever marries” must mean “whoever marries validity” or “whoever… marries and whose marriage is a valid one”. If the marriage is not a valid one according to the law applicable to the parties, no question of its being by reason of its taking place during the life of the wife or husband of the person arises. If the marriage is not a valid one, it is no marriage in the eye of law ((Bhaurao, (1965) 67 Bom. LR 423 (SC).)).

Merely because, the second marriage even if performed by performing all essential ceremonies turns out to be void by virtue of Section 17 of the Hindu Marriage Act, 1955, it cannot be said that, Section 494 of Indian Penal Code, 1860 will not be attracted ((Gopal Lal v. State of Rajasthan, 1979 Cr. LJ 652 (SC).)).

If the second marriage was not provided to have been validly performed by observing essential ceremonies and customs in the community, the conviction under Section 494, of Indian Penal Code could not be maintained ((L. Obulamma, 1979 Cr. LJ 849 (SC).)). Even if the husband admits his second marriage, the prosecution is not absolved of its burden of proving that, the second wife was taken after solemnizing due ceremonies of Hindu Marriage ((P Satyanarayana v. P Mallaiah, (1996) 6 SCC 122)).

If a person who is already married goes through a form of marriage with another within prohibited degrees of relationship , he is still guilty of bigamy although the second marriage would be null and void in any case ((Robinson, (1938) 1 All ER 301)). However, it is not correct to say that, in every case of bigamy, unless the second marriage can be proved by bringing in the evidence of the performance itself, a conviction under Section 494 o Indian Penal Code, is virtually impossible. The accused can be convicted even if there is other reliable evidence to establish the charge ((Indu Bhgya Natekar v. Bhagya Pandurang Natekar, 1992 Cr. LJ 601 (Bom).)).

Though good faith and mistake of law are no defences to the charge of bigamy, it was held by the court in Raj Kumari v. Kalawti ((1992 Cr. LJ 1373 (All).)), that, the second marriage was invalid as one of the two essential ceremonies of the customary marriage was not performed. It was held that, having so concluded the court could not proceed to convict the accused under Section 494 of Indian Penal Code.

This section also laid down three exceptions to the offence viz.

  1. Continual absence of none of the parties for the space of seven years;
  2. The absent spouse not having been heard of by the other party as being alive within that time; and
  3. The party marrying must inform the person with whom he or she marries of the above fact.

Graham v. Connor and Objective Reasonableness standard

Graham v. Connor ((490 U.S. 386 (1989).)), was a United States Supreme Court case where the Court determined that an objective reasonableness standard should apply to a civilian’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person.

Graham v. Connor determine the legality of every use-of-force decision an officer makes. An officer must apply constitutionally appropriate levels of force, based on the unique circumstances of each case.

United States Supreme Court in this case held that determining the “reasonableness” of a seizure requires a careful balancing of the nature and quality of the intrusion on the individual… against the attempt at “countervailing” and under the guise of governmental interests, being at stake.

The Court outlined a non-exhaustive list of factors for balancing an individual’s rights and an officer’s: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, whether he is actively resisting arrest or attempting to evade arrest by flight.

Supreme Court of United States cautioned, the “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Supreme Court of United States also reinforced, as in other Fourth Amendment contexts… the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

However, Supreme Court of United States rejected the notion that the judiciary could use the Due Process Clause instead of the Fourth Amendment in analyzing excessive force claims: Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.

Cohabitation caused by a man deceitfully inducing a belief of lawful marriage

Section 493 of the Indian Penal Code, 1860 deals with the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Under this section a man either married or unmarried who induces a women to become, as she thinks, his wife, but in reality his concubine, is punishable for the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage, with imprisonment for a term of 10 years and shall also be liable to fine or both.

In order to constitute an offence under Section 493 of Indian Penal Code, 1860, there shall be a;

However, if a woman married a man with the knowledge that, he was already a married man and there was no proof that the man falsely induced her to believe anything, it was held that, the ingredients of the offence under Section 493 were not made out ((Saurava Barik v. Gauri Kaudi, 1994 Cr.LJ 440)).

Where a man and woman exchanged garlands, the man promising to marry formally, and had se as a result of which the woman became pregnant, it was held that, exchange of garland did not amount to falsely inducing the woman to believe that she was married to the man ((Amruta Gadtia v. Trilochan Pradhan, 1993 Cr. LJ 1022 (Orissa).)).

In Akhaya Kumar v. State ((1998 Cr. LJ 1757 (Orissa).)), the accused and the prosecutrix were in love with each other for several years. The accused married another and still continued to cohabit with the prosecutrix on false pretences of marrying her. The prosecutrix was aware of this fact. Hence, there was no deception. Framing of charge against the accused under Section 493 of Indian Penal Code, 1860 was not proper.

Defamation as a crime under Indian Penal Code

Section 499 – 502 of Indian Penal Code deals with the defamation. Offence of defamation can be dealt both under the law of crimes as well as under Law of Torts. Criminal nature of defamation is defined under Section 499 of Indian Penal Code and Section 500 provides the punishment for such offence.

Bare reading of section 499 it becomes clear that any person by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said to defame that person. Section 499 is followed by 4 Explanations and 10 Exceptions.

The essence of the offence of defamation under the provisions of Indian Penal Code is the publication of the defamatory statement ((Baburao Shankarrao v. Shaikh Biban Baban Pahelwan, 1984 Cri LJ 350)). It may be either libel or slander.

If publication of truth is in public interest it would not be a defamation, but if it has nothing to do with public interest and relates to privacy of an individual then it would certainly be defamatory ((Abk Prasad v Union Of India, 2002 (3) ALT 332)).

Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject- matter of accusation ((AS Sree Nandhini v R Uthaman, decided on November 27, 2014, Madras High Court)).

General law relating to defamation is to be found in the operative part of Section 499 of the Indian Penal Code and various exceptions which only carve out the circumstances in which the act of the accused, which was otherwise defamatory, would not amount to defamation within the meaning of the section. The onus of proving these circumstances must, therefore, be borne and discharged by the accused himself and it is not the function of the prosecution to prove that no such circumstance exists ((Baburao Shankarrao v. Shaikh Biban Baban Pahelwan, 1984 Cri LJ 350)).

The question came before the Andhra Pradesh High Court ((Abk Prasad v Union Of India, 2002 (3) ALT 332))was that, whether Section 499 and Section 500 violates any principles on which our democratic set up rests, especially, whether it violates Article 19 of the Indian Constitution.

Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of the right to privacy and defamation and Sections 499/500 IPC are the existing laws saved under Article 19(2), and court held that, defamation is one of the exceptions created under Article 19(2) of the Constitution, therefore, Section 499 or 500 does not suffers from any Constitutional infirmity.

Hence, Sections 499 and 500 are not in violation of any principles on which our democratic set up rests. Truth is an exception to the law of defamation. By virtue of Section 500 of Indian Penal Code, whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Punishment for an attempt to commit an offence

Intention, preparation, attempts and commission are the four stages in a crime. By virtue of Section 511 of Indian Penal Code, 1860 “an attempt to commit an offence” is a punishable offence. Every attempt though fails must create an alarm, which of itself an injury and the normal guilt of the offender is the same, as if he had succeeded. Hence, an attempt to commit an offence is a punishable offence.

By virtue of Section 511 of Indian Penal Code, 1860 whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

An attempt means to try OR to endeavour to do something. In other words, an attempt means an act towards the commission of the offence, which fails due to circumstances independent of the attempter’s will. A person is said ((Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698))to have committed “an attempt to commit an offence” under the Indian Penal Code, if;

  • He intends to commit any particular offence; OR
  • He made preparation for it; and
  • He does any act towards its commission.

An attempt is said to be a direct movement towards the commission of an offence soon after the preparations. It is an intentional preparatory action, which fails in its object because of circumstances independent of the person who seeks its accomplishment.

An attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression attempt to commit an offence and is exactly what the provisions of Section 511 of the Indian Penal Code, requires ((Ramabai Nivrutti Chavan v. Nivrutti Nimbhaji Chavan & Others, 1988 (2) BomCR 161)).

Whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependant on the nature of the offence and the steps necessary to take in order to commit it. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation ((Rameshwar v. State of Haryana, AIR 1987 SC 713)).

The test for determining whether, the act constitutes an attempt or preparation, is whether the overt acts already done are such that, if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that, if not prevented from extraneous cause would fructify into commission of an offence, it would amount to an attempt to commit that offence ((Malkiat Singh v. State of Punjab, AIR 1970 SC 713)). In order to constitute an offence,

  • there must be an intention to commit an offence;
  • some acts must have been done which would necessarily have to be done towards the commission of the offence; and
  • such acts must be proximate to the intended result

in other words, the acts must reveal, with reasonable certainty, in connection with other facts and circumstances, and not necessarily in isolation an intention as distinguished from a mere desire or object to commit the particular offence ((State of Maharashtra v. Mohammad Yakub, AIR 1980 SC 1111)).

However, it must be noted that, Section 511 of the Indian Penal Code will not apply to cases of attempt made punishable under some other specific sections of the Indian Penal Code, viz.

  • Attempting to wage war against the Government of India (Section 121)
  • Attempt wrongfully to restrain the President and other higher officials with intent to induce or compel them to exercise or refrain from exercising any of their lawful powers (Section 124)
  • Attempt to rescue State prisoners or prisoners of war (Section 130)
  • Attempt by a public servant to obtain an illegal gratification (Section 161)
  • Attempt to use as true, evidence known to be false (Section 196)
  • Attempt to commit murder (Section 307)
  • Attempt to commit suicide (Section 309)
  • Attempt to commit robbery (Section 393)
  • Attempt by one of many joint house breakers by night to cause death or grievous hurt (Section 460)

Offences relating to marriage under IPC

Section 493 to 498 A, of the Indian Penal Code, 1860 deals with the offences relating to marriage. Section 493 of Indian Penal Code deals with the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.

By virtue of Section 493, every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Thorough reading of above mentioned Section makes it clear that, in order to constitute an offence under Section 493 of IPC, it shall have following two essential ingredients;

  1. Deceit causing a false belief in the existence of a lawful marriage; and
  2. Cohabitation or sexual intercourse with the person causing such belief

Section 494 of Indian Penal Code deals with the offence of Marrying again during lifetime of husband or wife. By virtue of said section, whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

However, Section 494 does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Further, whoever commits the same offence with concealment of former marriage from person with whom subsequent marriage is contracted, the fact of the former marriage, shall be punished under Section 495 of Indian Penal Code, with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 496 of Indian Penal Code deals with the offence of Marriage ceremony fraudulently gone through without lawful marriage. By virtue of Section 496 of IPC whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

By virtue of Section 497 of Indian Penal Code, whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Section 498 of Indian Penal Code deals with the offence of Enticing or taking away or detaining with criminal intent a married woman. By virtue of Section 498 of Indian Penal Code, whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

By virtue of Section 498 A of Indian Penal Code, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purpose of this Section, the term “cruelty” means;

  1. any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
  2. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

This is one of the Sections in the Indian Penal Code, which is widely misused. Read more on the misuse of sexual harassment laws in India.

Section 496, Fraudulent or unlawful marriage under IPC

Section 496 of the Indian Penal Code deals with the offence of marriage ceremony fraudulently gone through without lawful marriage. By virtue of this section, fraudulent or mock marriages are punishable offence. Section 496 of Indian Penal Code, 1860 is categorised under the offences relating to marriage.

Section 496 of IPC applies to those cases, in which a mock marriage ceremony is gone through, where it would in no case constitute a marriage, and in which one of the party deceived by the other party into the belief that, it does constitute a marriage OR in which effect is sought to be given by the proceedings to some collateral fraudulent purpose.

Where the ceremony gone through does, but the previous marriage constitute a valid marriage and if both the parties are very much aware of the circumstances of the previous marriage, then Section 494 of the Indian Penal Code will apply, where it deals with the offence of marrying again during the lifetime of husband OR wife ((Rama Sona, [1873] Unrep Cr.C 77)). However, when such a second marriage is performed fraudulently, complaint under this section can be made only by the person so deceived and not by the first wife ((Prasanna Kumar v. Dhanalaxmi, 1989 Cr.LJ 1829)).

Where the accused married for the second time during the pendency of the special appeal against the decree of divorce in violation of Section 15 of the Hindu Marriage Act, 1955, but without concealing the fact that, of the pendency of the appeal from the girl OR her parents, no conviction could be entered under Section 496 of the Indian Penal Code, as the act of the accused is neither fraudulent nor dishonest ((Kailash Singh, 1982 Cr.LJ 1005 [Raj])).

Ingredients of culpable homicide under Section 299

Homicide is nothing but killing of a human being. It can be either lawful or unlawful. Lawful homicide is covered under the general exceptions as mentioned under Sections 76 – 106 of Indian Penal Code. Unlawful homicide is categorised under the offences against human life and the same is classified as;

  • Culpable homicide not amounting to Murder (Section 299);
  • Murder (Section 300); and
  • Homicide by rash and negligent act (Section 304A)

Section 299 of Indian Penal Code deals with the offence of Culpable Homicide. By virtue of Section 299, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Referring to above provision of the Indian Penal Code, the essential ingredients of culpable homicide are as follows;

Intention of causing death

Intention is the purpose with which an act is done. It is a question of fact. It implies the foreknowledge and the desire or willingness to commit an act. It does not imply or assume the existence of some previous intention. It implies the actual intention existing at the very moment of committing an act.

Intention of causing such bodily injury as likely to cause death

In order to hold a person responsible for the offence of culpable homicide under the provisions of Indian Penal Code, it is essential to prove that, the death of the deceased was directly connected with the act of the accused. Such connection should be distinct as well.

Knowledge that he is likely by such act to cause death

When an act is done by a person, it is presumed that, he is having sufficient knowledge about the consequences of his act. Knowledge in this context merely means awareness. However, such a mere awareness shall not be equated to the intention to commit an offence. “Intention” and “Knowledge” are two distinct concepts ((Jai Prakash v. State of Delhi, (1991) 1 SCJ 319)).

By virtue of Section 304 of Indian Penal Code, whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Suicide: Durkheim’s theory and the debate

On decriminalization of Section 309, IPC

Tweisha Mishra, Student of Law, National Law Institute University, Bhopal

Abstract

Suicide as a phenomenon, in the present article, is focused on adolescent or teenage suicides, which are increasing at rapid rates, thus raising a cause of concern. Suicide has been studied with reference to the eminent French sociologist, Emile Durkheim’s theory on Suicide, which was explained in his book, Le Suicide (1897). This theory has been considered to be highly relevant to the present study.

The aim of this article is to explore suicide, not as a crime but as a sociological phenomenon that requires our immediate attention. This is done by analyzing suicide as theorized by Durkheim. Suicide has been defined, its types and causes explained and various prevention programs in operation have been referred to. In addition, the position of law in India has been analyzed with reference to various cases in which the question of the criminality of attempt to commit suicide has been raised.

INTRODUCTION

English word adolescence is derived from the Latin term adolescere which means ‘growing to maturity’. It is a transitional stage of physical and psychological human development that generally occurs during the period from puberty to legal adulthood [age of majority] ((Macmillan Dictionary for Students, Macmillan, Pan Ltd. (1981), page 14, 456)).  Adolescent is a person who is considered to be neither a child nor an adult. Period of adolescence generally begins from the age of twelve and goes on till twenty. In Western societies adolescence period is also referred to as ‘the teenage years’. The label teenager is popularly associated with the characteristic behaviour patterns of young adolescents. In the words of Jersild, adolescence is “the period through which a growing person makes transition from childhood to maturity ((Sharma, Ramnath. Psychological Problems of Adolescence. Advanced Applied Psychology, Vol.1. New Delhi: Atlantic Publishers and Distributors. 2004)).” During this period, the adolescent is active and unstable. Suicides in teenagers are not a new phenomenon, but the frequency of their commission in recent times is certainly a reason for worry.

The US recorded an 18% increase in teen suicide in the last couple of years, while youth (10 to 29 years) account for more than half of 312 suicides in India daily. A study conducted by CMC, Vellore indicates that Indian urban hubs such as Chennai record the highest suicide rates among teenagers in the world. This is a fact borne out by the National Crime Records Bureau’s figures for 2005; the number of children under 14 across India who committed suicide stood at 1328 boys and 1257 girls ((National Crime Records Bureau, Ministry of Home Affairs. Accidental Deaths and Suicides in India, 2013, page 169-189)). Suicide rates are nowadays disturbingly high among teenagers, and this is a grave and contemplative issue. Suicide rates have increased sharply among U.S. adolescents in recent decades and are now about 15 per 100,000 for boys and 3 per 100,000 for girls. It is the third leading cause of death for adolescents of fifteen to nineteen years old, accounting for 14 percent of all deaths in this age group. Suicide is very often, an impulse among adolescents, for example, after a highly stressful event. Teen lovers sometimes agree to kill themselves if they cannot be together. According to a psychological study, most adolescents who commit suicide – about 80 percent – have long-standing mental health problems such as depression, externalizing behaviour disorders, or substance abuse. The problem of increasing tendency among youth to commit suicide has been raised in Parliament recently. Some of the important terms used in this article are defined here. Suicide refers to the act of deliberately killing oneself. Para-suicide is the apparent attempted suicide without the actual intention of killing oneself. This also includes the attempts at suicide that did not succeed. Suicidal Ideation is the thinking about suicide without actually making plans to commit suicide. In this article, the author seeks to investigate the sociological causes of suicides among adolescents and suggest measures in which such cases may be prevented and avoided in future. Important recent statistics are described here.

Incidence and rate of suicides during the decade (2002–2012):More than one lakh persons (1,35,445) in the country lost their lives by committing suicide during the year 2012. The number of suicides in the country during the decade (2002–2012) has recorded an increase of 22.7%. The population has increased by 15.5% during the decade but the rate of suicides in 2012 was 11.2%. Causes of suicide include ‘family problems’ and ‘illness’, accounting for 25.6% and 20.8% respectively, are the major causes of suicides among the specified causes. ‘Drug abuse/addiction’ (3.3%), ‘love affairs’ (3.2%), ‘bankruptcy or sudden change in economic status’ (2.0%), ‘poverty’ (1.9%) and ‘dowry dispute’ (1.6%) were the other causes of suicides. It is also observed that social and economic causes have led most of the males to commit suicide whereas emotional and personal causes have mainly driven females to end their lives. Around 34.6% suicide victims were youths in the age group of 15-29 years and 33.7% were middle aged persons in the age group 30-44 years ((Id.)).

DURKHEIM’S THEORY OF SUICIDE

Le Suicide was a groundbreaking book in the field of sociology, written by French sociologist Émile Durkheim and published in 1897. He defines suicide as follows:

The term suicide is applied to all cases of death resulting directly or indirectly from a positive or negative act of the victim himself, which he knows will produce this result ((Durkheim, Emile. Suicide: A Study in Sociology. Trans. John Spaulding and George Simpson. Glencoe, Illinois: Free Press, 1952)).

The significance of his work in the history of sociology cannot be denied due to two principal reasons. One, it was the first attempt to apply a set of systematic principles of scientific investigation to a specific social phenomenon (suicide). These principles had been explained by Durkheim in his earlier book, The Rules of Sociological Method (1895). Two, having outlined the principles involved in the scientific study of society, Durkheim attempted to demonstrate the way in which we could apply those principles to the study of any social phenomenon. Durkheim argued that a phenomenon such as suicide could be analysed scientifically and the causes of that phenomenon explored. He believed that, in order to understand social life we had to analyse human behaviour in terms of its social characteristics. Following Comte, he viewed societies as “social systems” – systems that could only be fully understood in terms of the inter-relationship between various parts of the social. For Durkheim, society appeared to be something that existed in its own right, separate from the ideas, hopes and desires of its individual members.

Durkheim’s study of suicide was, and remains, an important example of the way in which sociological knowledge and methodological principles can be used to challenge commonly-accepted or “taken-for-granted” ideas about the nature of the social world. As he argued:

Since suicide is an individual action affecting the individual only, it must seemingly depend exclusively on individual factors, thus belonging to psychology alone. Is not the suicide’s resolve usually explained by his temperament, character, antecedents and private history? … If, instead of seeing in them (that is, suicides) only separate occurrences unrelated and to be separately studied, the suicides committed in a given society during a given period of time are taken as a whole, it appears that this total is not simply a sum of independent units, a collective total, but is itself a new fact sui generis (that is, unique in some way), with its own unity, individuality and consequently its own nature – a nature, furthermore, dominantly social ((Id.)).

From the above, it is explained why Durkheim considered it important to study suicide as a collective, as opposed to an individual, phenomenon. In his book, he arrived at various conclusions by exploring the differing suicide rates among Protestants and Catholics, arguing that stronger social control among Catholics resulted in lower suicide rates. His conclusions on suicide rates among various sections of society include:

  • Suicide rates are higher in men than women (although married women who remained childless for a number of years ended up with a high suicide rate).
  • Suicide rates are higher for those who are single than those who are married.
  • Suicide rates are higher for people without children than people with children.
  • Suicide rates are higher among Protestants than Catholics and Jews.
  • Suicide rates are higher among soldiers than civilians.
  • Suicide rates are higher in times of peace than in times of war.

In his work, he also distinguished four subtypes of suicide. These include egoistic, altruistic, anomic and fatalistic suicides.

Egoistic suicide is primarily concerned with the lack of a sense of belonging, as well as integration with the society. It gives birth to feelings of apathy, stress and depression. It is the result of weakening bonds that generally integrate individuals into the society, and was called by Durkheim as ‘excessive individuation’.

Altruistic suicide can be considered as the exact opposite of egoistic suicide. It is the product of excessive integration, of being overpowered by a group’s aims and concerns. The individual is perceived to be inferior to the society as a whole. His needs are thus, inferior to those of the society.

Anomic suicide is the result of major upheavals in the social or economic status of the individual. It results in a feeling of directionlessness and demoralization. It is the most common type of suicide in present day society, being a consequence of sudden transformations in the material world, as well as declining trends of emotional bonds and community living.

Fatalistic suicide takes place when a person is excessively regulated, when their futures are pitilessly blocked and passions violently choked by oppressive discipline ((Harriford, Diane, and Thomson, When the Center is on Fire, pg.167)). It occurs in excessively oppressive societies, causing people to prefer to dying to carrying on living within such a society.

Such classification of the types of suicides is fundamentally based on the degrees of imbalance between two forces: social integration and moral regulation. This is considered to be highly relevant even in the modern society. The next section presents the various causes that sociologists of different times have attributed to suicides.

CAUSES OF SUICIDE AMONG YOUTH

In Durkheim’s society, children and teenagers were the groups that had a low suicide rate. This is something that has changed today and there appears to be an unusually rapid proliferation of suicides in children and teenagers throughout the globe over the last few decades. By identifying the type of suicide as suggested by Durkheim, that these young people are committing, it may be possible to find the cause for such an increase and implement the necessary procedures to help prevent the phenomenon ((Bridge J.A., Goldstein T.R., Brent D.A. Adolescent Suicide and Suicidal Behavior. J. Child. Psychol. Psychiatry. 2006;47:372–394)).

Of all the types of suicide that Emile Durkheim wrote about in his groundbreaking work, Suicide: a Study in Sociology, there are two that seem to be behind teenage suicides in the twentieth and twenty-first centuries. These two types of suicide are altruistic and anomic, with anomic being the form that has the most relevance in analysis of teenage suicides. Durkheim describes this type as resulting from a low regulation and integration of the individual into the society. Among the different factors leading to anomic suicides among teenagers, the most common is major readjustments in the social order, an inability to fulfill a person’s needs, a lack of compassion from fellow humans, a lack of aims in life, a continually transforming society, and a lack of discipline and regulation. Primary causes have been explained in brief.

Stress and Depression: Many causes, including academic pressure and peer pressure, cause stress in adolescents. Biochemical changes in the brain trigger depression, which manifests itself in different forms. Vidyadhar Bapat, a known psychotherapist has studied the temperament, strength and weaknesses of the teenagers which make them susceptible to depression. He comments, “due to their sensitivity, teenagers feel a void when what they get is completely different from what they expected ((Birajdar, Laxmi. The Many Pitfalls of Teens Life. Times City. Sunday Times of India. June 1, 2008)).”

Gender: In Western countries, the rates of suicide are higher in adolescent boys than adolescent girls (ratio of 5:1), whereas the rates of suicidal ideation and attempted suicide are higher in girls (ratio of 3:1). Reasons for such patterns include higher suicidal intent, use of more violent methods, higher prevalence of antisocial disorder and substance abuse, and greater vulnerability to stress factors, such as legal troubles, financial difficulties, and personal losses among boys. Boys may also have more difficulties in seeking help and communicating their distress.

Teenage Pregnancies and Venereal Diseases: Teenage pregnancies and venereal diseases are considered as serious problems faced by the teenagers. This can severely and all of a sudden disrupt their education as well as health. Moreover, becoming pregnant at such an early age can also have seriously negative effects on a girl’s health and mental well-being.

Family Factors: Research has suggested that family environment is an important factor in predicting suicidal behaviors. The relevant family-related risk factors include parental psychopathology, family history of suicidal behavior, family discord, loss of a parent to death or divorce and poor quality of the parent-child relationship.

Physical and Sexual Abuse: There is a grave association between childhood abuse and suicidal tendencies for both boys and girls. Exposure to physical and, especially, sexual abuse in childhood leads to a significant increase in poor mental health outcomes, including suicidal ideation and behavior, experienced at ages 16 to 25. The risk is increased if the child is sexually abused by an immediate family member or the sexual abuse is repeated over time. The greater the severity of the abuse, the higher the risk of suicide attempts.

PROGRAMS FOR PREVENTION

Despite the increasing trend of suicidal tendencies among adolescents across the world due to causes discussed earlier, there have been important measures to prevent and curb suicides among youth. For this, attention has been focused on school-based programs for identifying students susceptible to depression and anxiety, and referring them to psychological health institutions. The teachers of the target schools act as ‘gatekeepers’ to identify and refer such children. This program is worthy of appreciation because many adolescents do not convey their conditions to adults, or express clearly their mental state. Through this approach, it becomes possible to study the behaviours and take effective measures in order to prevent commission of suicide. In Canada, many prevention programs focused on protection of ethnic minorities such as native Indians have been implemented to promote their interests and values and save them from extinction. There are some plans that are based on Durkheim’s study and attempt to provide teenagers with the resources as well as the education to counter the primary causes leading to suicides among them. They also try to provide solutions for the despair, anxiety, helplessness and depression among youth. They educate adolescents to express themselves and communicate their need for support to those who are capable of extending such help. They encourage teenagers not to be embarrassed by their vulnerable conditions. One such appreciable effort, named ‘Suicide Shouldn’t Be a Secret’ has been developed in Colorado, and is based on Durkheim’s research. This campaign conveys this message in the adolescents’ own words and provides resources using modern technology that is within the access of teenagers across America, such as the internet. The program has an online resource that shows the warning signals that family and friends of such teenagers should be careful about and also lists the important phone numbers that the teenagers can call if they need to discuss their problems with someone.

In India, national suicide prevention measures are oriented towards school education programs, crisis center hotlines, screening programs that seek to identify susceptible adolescents, media guidelines (suicide prevention strategies that involve educating media professionals about the prevalence of copy-cat suicides among adolescents) and efforts to limit access to firearms. These programs have been helpful in showing that people with suicidal tendencies are inclined to show signs of emotional and mental anxiety. The identified individuals may be referred for efficient and effective treatment. Referring individuals at risk to mental health services and institutions can save many lives in time, and provide proper care to the individuals that they need so desperately.

One noteworthy project to prevent suicides is ‘Strategies to Prevent Suicide (STOPS) Project’ of Suicide Prevention International (SPI). In 2006, the Planning Committee, composed of Herbert Hendin, José Bertolote, Michael Phillips, and Danuta Wasserman developed the STOPS Project in Asia ((Herbert Hendin et al. Suicide and Suicide Prevention in Asia, World Health Organization, 2008 http://www.who.int/mental_health/resources/suicide_prevention_asia.pdf)). This program has consulted various experts engaged in suicide prevention programs across Asian countries that have undertaken strategies to curb suicides, not just in the public sector but also by non-governmental organizations. The objective of the program is to stimulate and improve suicide prevention initiatives in participant Asian countries and to help develop, implement, and fund suicide prevention initiatives that seem likely to be effective. Initiatives that have effective evaluation measures are highlighted to serve as a model for others. STOPS is currently focused on three South Asian countries (India, Sri Lanka, and Thailand), belonging to the WHO South-East Asia Region, one country belonging to the WHO Eastern Mediterranean Region (Pakistan), and eight countries (Australia; China; Japan; Malaysia; New Zealand; the Republic of Korea; Singapore; Vietnam; and China, Hong Kong, Special Administrative Region [Hong Kong SAR]), belonging to the WHO Western Pacific Region.

LEGAL PROVISIONS IN INDIA

The relevant sections of the Indian Penal Code that discuss suicide are 306 (abetment of suicide) and 309 (attempt to commit suicide). Section 306 states:

If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Attempted suicide, though a failed act usually carries more importance than suicide, a successful act, since attempt to commit suicide constitutes an offence under Section 309 of Indian Penal Code. It states:

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for term which may extend to one year [or with fine, or with both].

In England, the Suicide Act 1961 abrogated the law laying down that attempt to commit suicide is an offence. Although suicide is no longer an offence in itself, any person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, is guilty of an offence and liable on conviction on indictment to imprisonment for a term which may extend to 14 years ((Halsbury’s Laws of England, 4th ed. 2000 Reissue, Vol. 11(1), Para 106)).

The provisions of Section 309 have given rise to numerous conflicting opinions on the desirability of making attempt to suicide punishable. On one hand, it is considered that Article 21 of the Constitution of India guarantees protection of life and personal liberty. By declaring an attempt to commit suicide a crime, the IPC upholds the dignity associated with human life which is as precious to the State as it is, to its holder and the State cannot turn a blind eye to a person trying to kill himself. On the other hand, a section of people feels that the provision is irrational and brutal as it provides double punishment to an individual already in distress. The conditions that led him to attempt to end his own life are further aggravated by imposing a cruel punishment or fine or both on the troubled individual. The Mental Health Care Bill was introduced to the Rajya Sabha on August 19, 2013 and provides, in Article 124, that:

Notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to be suffering from mental illness at the time of attempting suicide and shall not be liable to punishment under the said section.

It also provides that the Government shall have the duty to provide medical care to any such person attempting suicide. The Bill, therefore, does not repeal Section 309 of the Indian Penal Code, but merely provides the presumption of mental illness ((The Mental Health Care Bill 2013. Ministry of Health and Family Welfare. Union of India 2013)).

In 1981, the Delhi High Court condemned the section by calling it ‘unworthy of human society’. In 1986, the Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra ((1987 CriLJ 743)), ruled that Section 309 is ‘ultra-vires’ as it is violative of Articles 14 and 21 of the Constitution of India. It supported its decision with an example. The Court said:

The freedom of speech and expression includes freedom not to speak and to remain silent. The freedom of association and movement likewise includes the freedom not to join any association or to move anywhere. The freedom of business and occupation includes freedom not to do business and to close down the existing business. If this is so, logically it must follow that right to live as recognized by Article 21 of the Constitution will include also a right not to live or not to be forced to live. To put it positively, Article 21 would include a right to die, or to terminate one’s life.

The High Court further observed that the notion of ending one’s own life is not something which is entirely novel to the history of humankind. Religions like Hinduism and Jainism have approved the act as well as condemned it based on carrying circumstances. Buddhism has remained ambivalent on the issue. Neither the Old nor the New Testament condemn suicide as an act. It is significant that the High Court referred to the French sociologist, Emile Durkheim, and his classification of the types of suicides in its judgment. It quoted the explanations given by Durkheim of egoistic, altruistic and anomic suicides by considering them relevant to the present case. It also observed that imprisoning people who attempted suicide on account of mental illnesses would only lead to further derangement of the individuals. What they really need is proper psychiatric care, not punishment. Moreover, those who attempt to kill themselves due to terminal diseases, or grave physical state because of old age or physical disablement need homes for care of such people and not prisons.

However, the Andhra HC held that it is a valid section, by giving the reason that it does not ‘offend’ the said Articles. In the 1994 case of P. Rathinam v. Union of India ((AIR 1994 SC 1844)), a Supreme Court bench consisting of two judges, Justice R M Sahai and Justice B L Hansaria, held the section to be void. Quoting from a lecture of Harvard University Professor of Law and Psychiatry, Alan A Stone, the Supreme Court noted that right to die inevitably leads to the right to commit suicide. They said: the right to live (under Article 21 of the Constitution of India) can be said to bring in its trial the right not to live a forced life.

On the contrary, in March 1996, a Supreme Court bench consisting of five judges declared that attempted suicide is an offence under the IPC, overruling the previous bench. The case involving this question was Gian Kaur v. State of Punjab ((AIR 1996 SC 946)), where the Court overruled the decisions in Maruti Shripati Dubal and P. Rathinam, ruling that Article 21 cannot be interpreted to include within it  the ‘right to die’, and thus, it cannot be said that section 309, IPC is violative of Article 21. It said:

‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’. The comparison with other rights, such as the right to ‘freedom of speech’, etc., is inapposite… The right to die, if any, is inherently inconsistent with the right to life, as is death with life.

The Gian Kaur judgment reasoned that unhappiness is a cause behind suicides. However, a few scholars disagree with this judgment and argue by asking a question: Would the Court pronounce a medical condition as illegal if it is a symptom of depression and unhappiness? If not, then why is attempted suicide, which is a symptom of underlying psychiatric disorders, illegal? Depression is the commonest diagnosis associated with suicidal attempt like other common diagnoses such as alcoholism, drug abuse, Schizophrenia, etc. All these disorders require medical and/or psychological therapy ((Ahuja N. A Short Textbook of Psychiatry. 4th ed. New Delhi: Jaypee Brothers; 1999: p.203-210)). McNaughten’s rule may be found relevant when interpreting the criminality of Section 309. This rule is represented in Section 84 of the Indian Penal Code. It says:

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.

Thus, through this argument, attempted suicide is not considered to be an offence since the person at the time of commission, is covered by Section 84. Moreover, a person suffering from grave psychological illness cannot be expected to consider the legal consequences of his act. Thus, the law in such cases, fails to act as a deterrent. Supporters of this theory ask: Does the State today have a right to force a person to stay alive, when the State itself cannot provide him means of a decent livelihood?

An Association at the global level, The International Association for Suicide Prevention, also observed that attempt to suicide needs to be decriminalized and the individuals with suicidal tendencies should be provided with immediate help and care, and that imposing punishment on such individuals only worsens their situation. The Association sponsors the ‘World Suicide Prevention Day’ in order to attract global attention to its immediate objective on September 10 every year. Acting on the view that such persons deserve the active sympathy of society and not condemnation or punishment, the British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence ((Justice A. R. Lakshmanan, Humanization and Decriminalization of Attempt to Suicide, Report No. 210, October 2008. http://lawcommissionofindia.nic.in/reports/report210.pdf)). Clause 126 of the Indian Penal Code (Amendment) Bill, 1972, introduced in the Council of States on 11.12.1972, provided for the omission of section 309. It was stated in the ‘Notes on Clauses’ appended to the Bill that the said penal provision is harsh and unjustifiable, and that a person making an attempt to commit suicide deserves sympathy rather than punishment. As the House of the People was dissolved in 1979, the Bill, though passed by the Council of States, lapsed.

However, the debate regarding the section has now been stabilized. In December 2014, the government decided to decriminalize ‘attempt to suicide’ by deleting Section 309 of the Indian Penal Code. Minister of State for Home, Haribhai Parathibhai Chaudhary said that the government had decided to drop Section 309 from the IPC after 18 states and 4 Union territories backed the recommendation of the Law Commission of India in this regard. ​In his words:

Law Commission of India, in its 210th Report, had recommended that Section 309 (attempt to commit suicide) of IPC needs to be effaced from the statute book. As law and order is a state subject, views of States/UTs were requested on the recommendations of the Law Commission. 18 states and 4 Union territory administrations have supported that Section 309 of the IPC may be deleted. Keeping in view the responses from the states/UTs, it has been decided to delete Section 309 of IPC from the statute book ((Bharti Jain, Government decriminalizes attempt to commit suicide, removes section 309, TOI, December 10, 2014. http://timesofindia.indiatimes.com/india/Government-decriminalizes-attempt-to-commit-suicide-removes-section-309/articleshow/45452253.cms)).

It was observed that many countries including those in Europe and North America have decriminalized attempt to suicide. WHO, the International Association for Suicide Prevention, and Indian Psychiatric Society have also recommended the above stated decriminalization. Thus, in view of these recommendations, the Government finally took the bold step of initiating steps to repeal the ‘anachronistic’ law.

CONCLUSION

Suicide remains an grave psychological problem and a major cause of death in young people. The role of social factors in suicidal behavior has for long been established. It is very necessary that the causes of suicides be studied in depth, and appropriate measure to curb the act be enacted. Various views on the debate concerning decriminalization of attempt to suicide (covered by Section 309 of IPC) were expressed in the paper. This research welcomes the latest move of the government in favor of repealing the harsh and unreasonable section. It was highly necessary not to subject already troubled individuals to further pain and humiliation. This is a step that would go a long way in preventing suicides. However, only this is not enough. It is imperative that both governmental and non-governmental organizations pursue programs for the identification of such individuals who might be at risk of committing suicides and providing them with the requisite medical care. This would be more effective in the situations where individuals inclined towards committing suicides can be identified at a young age, during their adolescence so that they may be counseled in a more effective way. In this context, the concepts propagated by the classical theories of Durkheim and Erickson are still highly relevant today. Some such organizations are already at work and have done some commendable work in the field, but there is a need to establish more such organizations and expand their reach so as to bring more troubled individuals into their fold.

General Exception and Difference in Liability

Author: Ria Tandon, Research Associate

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.

Defenses 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 defense 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 ((Douglas Jerrold)). 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.

COMPULSION

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 ((http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=2769))and is threatened by the threats of his death to do an illegal act as stated by the statutes.

Murder aspect

Murder is defined under section 300 ((Section 300 of Indian Penal Code))of the IPC. 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.

Instant Death

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 ((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 .

INTOXICATION

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 drunken person. Though Drunkenness 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 defense but always the aspects of mens rea are seen.

MISTAKE OF FACT

Mistake of Fact ((Chandrasekharan Pillai K.N. General Principles of Criminal Law , pp- 274, Eastern Book Company))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 ((Section 79 of the Indian Penal Code))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 defense.

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 defense 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, 5th 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 defense 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.

CONCLUSION

Through this paper the author tries to bring forth the various instances which exist 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 defense while in case of the mistake of law is not considered as a defense. 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.