Theories of Punishment:

Introduction :

Punishment. A term which is inherent to criminal justice. It is only because of the term
punishment, that certain acts are classified as ‘crimes’. Down the lane of the history of the
society, we have seen that without punishments, it would have sometimes been impossible to
tame the barbaric, as well as primitive tendencies of the public. It was the weapon named
‘punishment’ that the rulers used against their subjects in order to maintain a fear in the
minds of the public regarding the capacities and powers of their rulers. Punishments
sometimes were also given as an insult to someone else. However, the most common
punishment from which all of us are familiar is the scolding or mild beating that we get from
our parents. In that case, what are the theories of punishment actually in case of serious
crimes? How did they develop? What are the pros and cons of the various ways of punishing
people? Do the Hindu scriptures too depict any form of the punishments mentioned
hereinafter? Through this paper, we will try to answer all such questions and understand how
far the various Theories of Punishment are applicable in the present era. The theories of
punishment are as follows:

 RETRIBUTIVE THEORY.

 DETERRENT THEORY.

 PREVENTIVE THEORY.

 COMPENSATORY THEORY.

 REFORMATIVE THEORY.

1. Retributive Theory of punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in the
society would perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal
sentence over a perpetrator. It is based on a very small doctrine, namely the doctrine of Lex
talionis, which if translated, means ‘an eye for an eye’. Now, if looked at from the
perspective of very serious and heinous offences, like the Delhi gang rape case, people may
feel that it is better to inflict such retributive punishments, so as to ensure that a deterrent is
set across the society, in order to prevent such crimes in the near future.

 Doctrine of Societal Personification can be stated as-

‘When a member of the society is subjected to a very heinous crime, as a result of which, the
whole society, as if it were a natural person, considers the offence to be inflicted upon itself,
comes to the defence of that person either by way of demanding justice or by conducting the
same on its own, the society is said to be personified.’

It means that the society, whenever a heinous crime of an extreme form is committed,
assumes the form of a natural person and behaves in a collective manner so as to get justice.

Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape case,
etc.

 Doctrine of Correctional Vengeance maybe stated as-

‘When the society, in a fit to get justice, demands the concerned authorities to inflict vengeful
(as painful as the original act, or even more) punishments upon the victim for creating a
deterrent, it is said to exhibit correctional vengeance.’

Understanding Retributive Theory of Punishment:

‘The concept of retributive justice has been used in a variety of ways, but it is best understood
as that form of justice committed to the following three principles:

 That those who commit certain kinds of wrongful acts, paradigmatically serious
crimes, morally deserve to suffer a proportionate punishment;
 That it is intrinsically morally good—good without reference to any other goods that
might arise—if some legitimate punisher gives them the punishment they deserve;
and
 That it is morally impermissible intentionally to punish the innocent or to inflict
disproportionately large punishments on wrongdoers.’

The above three principles clarify the needs for retributive justice even further.
The place where both Criminal Law as well as Moral Law meet, is the place where mostly
the retributive punishments are generated.

E.g.: If a person rapes someone, capital punishment maybe given as a retributive measure. If
we literally give the person back what he did, i.e., sex, then it would be pleasurable rather
than torturing for him. Now that we have understood briefly that how exactly the retributive
punishment works, let us now move on to understand the ways in which Retributive Theory
is displayed in the Hindu texts and scriptures.

Retributive Theory and the Hindu Scriptures:

The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga Saptashati, are
primarily based on Retributive Theories but also, depict the ways in which one should
proceed while applying them.

 Ramayana– In the Ramayana the whole story began from retribution itself.
Lakshmana cut the nose of Raavan’s sister, because of which he kidnapped Sita. In
order to rescue her and also to avenge her kidnapping, Ram went to kill Raavan. But,
the major difference between the application of the retributive punishment between
the two was that Raavan did not even give Ram a chance to repent for his younger
brother’s act, but, Ram gave several chances to Raavan to correct his act.
 Mahabharata– Mahabharata, once again, is a very good example of how retributive
punishment should be inflicted. The Pandavas had not started-off with the war right
away. They had sent Shri Krishna as their messenger of peace a number of times to
the Kauravas, but, they did not give in. Mahabharata, especially Shrimad Bhagvad
Geeta, talks about the time when the retributive mode should be used. As we all know
that Arjun was about to leave the battlefield as he was too scared to go against his
own relatives, it was Krishna who said that ‘when all other paths close down, only
then war is to be resorted to. Because if then the person refuses to fight, then it will
inflict gross injustice upon the society at-large.’
 Durga Saptashati– In this too, Goddess Durga warns the various demons, i.e.
Mahishasur and Shumbh-Nishumbh, repeatedly, before starting a killer spree upon
them.

Case Laws:
  Nirbhaya Judgement– This case is indeed the first and foremost case to be
mentioned, while talking about retributive justice in India. In this Judgement, the
Supreme Court sentenced four out of six felons involved in the extremely heinous
Delhi gang rape case to death, much to the delight of the society, as they had
committed an extremely gruesome, as well as morally unimaginable crime.
 Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted had
already undergone a six month imprisonment term, before being officially convicted
by the Court. The Court held that since the convict had been convicted and also, the
required ‘blemish’ had also been imposed upon him, it was not necessary to sentence
him again in the name of ‘retributive punishment’, as it would inflict a very big loss
upon the family as well.
 Sri Ashim Dutta Alias Nilu vs State of West Bengal– In this case, it was observed
that both deterrent and retributive punishment aim at prevention of the recurrences of
the offences by others passing exemplary punishment for a particular offence. But the
civilization and the societies are progressing rapidly. There is advancement of science
and technology. The literate people and the experts in different branches of
knowledge started thinking in a different way. Eye for an eye, and tooth for a tooth
are no more considered as the correct approach towards the criminals. Such principle
may perpetuate the rule of the Jungle but cannot ensure the rule of law.

2. Deterrent Theory of punishment

In Deterrent theory of punishment, the term “DETER” means to abstain from doing any
wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals from
attempting any crime or repeating the same crime in future. So, it states that deterring crime
by creating a fear is the objective; to set or establish an example for the individuals or the
whole society by punishing the criminal. That simply means, according to this theory if
someone commits any crime and he/she is punished by a severe punishment, then, it may
result maybe that the people of the society will be or may be aware of the severe punishments
for certain kinds of crimes and because of this fear in the minds of the people of the society,
the people may stop from committing any kind of crime or wrongful act.

The deterrent theory of punishment is utilitarian in nature. For a better understanding we can
say like, ‘The man is punished not only because he has done a wrongful act, but also in order
to ensure the crime may not be committed.’ It is best expressed in the word of Burnett, J who
said to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other horses may not
be stolen”. = Through making the potential criminals realize that it doesn’t pay to commit a
crime, the deterrent theory hopes to control the crime rate in the society.

Jurisprudential School of Thought:

The deterrent theory can be related to the sociological school of Jurisprudence. The
sociological school creates a relationship between the society and law. It indicates law to be a
social phenomenon, with a direct and/or indirect connection to society. One of the main aim
of the deterrence is to establish an example for the individuals in the society by creating a
fear of punishment.

The concept of deterrent theory can be simplifying to the research of philosophers such like
Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy Bentham (1748-1832).
These social contract thinkers provided the foundation of modern deterrence in criminology.

In the Hobbesian view, people generally pursue their self-interests, such as material gain,
personal safety and social reputation and make enemies, not caring if they harm others in the
process. Since people are determined to achieve their self-interests, the result is often conflict
and resistance without a fitting Government to maintain safety. To avoid, people agree to
give up their egocentricity as long as everyone does the same thing, approximately. This is
termed as “Social Contract”. According to this social contract, he stated that individuals are
punished for violating the social contract and deterrence is the reason for it to maintain the
agreement between the State and the people, in the form of a social contract workable.

According to Cesare Beccaria, while discussing about punishments, the proportion of the
crime and punishments should be equal for it to serve as a deterrence or have a deterring
value.

According to J. Bentham, who is known as the founder of this theory, a hedonistic

conception of man and that man as such would be deterred from crime if punishment were
applied swiftly, certainly, and severely. But being aware that punishment is an evil, he says, if
the evil of punishment exceeds the evil of the offence, the punishment will be unprofitable;
he would have purchased exemption from one evil at the expense of another.
From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham, we came to
know that the theory of deterrence consists of 3 major components. They are as follows:

 Severity: It indicates the degree of punishment. To prevent crime, criminal law must
emphasize penalties to encourage citizen to obey the law. Excessively severe
punishments are unjust. If the punishment is too severe it may stop individuals from
committing any crime. And if the punishment is not severe enough, it will not deter
criminals from committing a crime.
 Certainty: It means making sure that punishments must happen whenever a criminal
act is committed. Philosopher Beccaria believed that if individuals know that their
undesirable acts will be punished, then they will refrain from offending in the future.
 Celerity: The punishment for any crime must be swift in order to deter crime. The
faster the punishment is awarded and imposed, it has more effect to deter crime.

Therefore, deterrence theorists believed that if punishment is severe, certain and swift, then a
rational person will measure the gain or loss before committing any crime and as a result the
person will be deterred or stopped from violating the law, if the loss is greater than the gain.

3. Preventive Theory of punishment

Preventive theory of punishment seeks to prevent prospective crimes by disabling the

criminals. Main object of the preventive theory is transforming the criminal, either
permanently or temporarily. Under this theory the criminals are punished by death sentence
or life imprisonment etc.

Philosophical View of Preventive Theory:

Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of
punishment due to its humanizing nature. Philosophy of preventive theory affirms that the
preventive theory serves as an effective deterrent and also a successful preventive theory
depends on the factors of promptness. The profounder of this theory held that the aim of
punishment is to prevent the crimes. The crimes can be prevented when the criminal and his
notorious activities are checked. The check is possible by disablement. The disablement may
be of different types.
Confining inside the prison is a limited form of disablement, that is temporary and when it is
an unlimited form of disablement, that is permanent. It suggests that imprisonment is the best
mode of crime prevention, as it seeks to eliminate offenders from society, thus disabling them
from repeating the crime. The death penalty is also based on this theory. This theory is
another form of deterrent theory. One is to deter the society while another is to prevent the
offender from committing the crime. From an overall study, we came to know that there are
three most important ways of preventive punishment, they are as follows:

 By creating the fear of punishment.

 By disabling the criminal permanently or temporarily from committing any other
crime.
 By way of reformation or making them a sober citizen of the society.

Case Laws:

 Dr. Jacob George v state of Kerala: In this case, the Supreme Court held that the aim
of punishment should be deterrent, reformative, preventive, retributive &
compensatory. One theory preferred over the other is not a sound policy of
punishment. Each theory of punishment should be used independently or incorporated
on the basis of merit of the case. It is also stated that “every saint has a past & every
sinner has a fortune”. Criminals are very much a part of the society so it is a
responsibility of the society also to reform & correct them and make them sober
citizens of the society. Because the prevention of crime is the major goal of the
society and law, both of which cannot be ignored.
 Surjit Singh v State of Punjab: In this case, one of the accused, a policeman entered
the house of the deceased with the intention to commit rape but failed to do so as the
as sons of the deceased shouted for help. Another accused suggested the policeman to
kill the deceased. The accused was held liable under section 450 of the Indian Penal
Code. While on the contrary, the death penalty or capital punishment is more of a
temporary form of disablement.

4. Compensatory Theory of punishment

The main look out in the law of crimes is to penalize the criminal, and/or to seek his
reformation and rehabilitation with all the resources and goodwill available through the
Courts and other Governmental and non-Governmental organizations. It must be seen that the
criminals should get proper judgement for their crimes so caused and the harassment caused
to the victim and towards their family members and property. The victims in a crime can be
compensated on mainly two grounds, namely-

 A criminal who had inflicted an injury against the person (or group of persons), or the
property must be compensated for the loss caused that has caused to the victim, and
 The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.

Compensation is the true essence of deterrent, reformative and a necessary contribution of

retribution.

Case Laws:

In the landmark case of DK Basu v. State of West Bengal the Apex Court held that a victim
who is under the custodial right, has every right to get compensated as her Right to Life,
which is under Article 21 of the Constitution, has been breached by the officer of the State.

In State of Gujarat and Anr. V. Hon’ble High Court of Gujarat, Justice Thomas had held
that, “The Reformative and reparative theories deserve serious consideration, where the
victim(s) of crime or his family members should get compensated from the wages that is
earned in prison by the criminal.” The Court suggested that the particular State should enact a
comprehensive legislation in respect of his compensation payable to victim of a crime.

5. Reformative Theory of punishment

This theory focuses on reforming the criminals and bringing the criminals back to society as
good and law-abiding citizens. This is based on the Gandhian principle: Hate the sin, not the
sinner.

This theory was successful to some extent in the case of juveniles. Some work or
craftsmanship is imposed on the offender during his period of confinement with the aim that
he will start a new life after his punishment is over.
Example of the reformative theory of punishment: Ankit, a prisoner, has learned pottery
during his stay in jail. After his release from jail, he started a pottery business, earned his
livelihood and lived happily.

Meaning of Mens Rea:

A fundamental principle of Criminal Law is that a crime consists of both a mental and a
physical element. Mens rea, i.e. a person’s awareness of the fact that his or her conduct is
criminal, is the mental element, and actus reus, i.e. the act itself, is the physical element.

Mens rea is a technical term, generally taken to mean some blameworthy mental condition,
the absence of which on any particular occasion negatives the condition of crime. It is one of
the essential ingredients of criminal liability. A criminal offence is committed only when an
act, which is forbidden by law, is done voluntarily.

It is the main characteristics of our legal system that the individual’s liability to punishment
for crimes depends, among other things, on certain mental conditions. The absence of these
conditions, where they are required, negatives the liability. Therefore an act in order to be a
crime must be committed with a guilty mind. This principle is based on the maxim ‘Actus
non facit reum nisi mens sit rea’, it means the act alone does not make a man guilty unless his
intentions were so. No person can be held liable for his act unless it is proved that he had a
guilty mind

It is the combination of act and intent which makes a crime. In the case of Sweat v. Parsley,
Lord Diplock said, “An act does not make a man guilty of a crime unless his mind be also
guilty”. Salmond said that the responsibility in crimes must depend on the doing of a ‘willed’
or ‘voluntary’ act and a particular intent behind that act.

For any criminal liability there must be a ‘voluntary act’. This proposition is derived from
the maxim ‘actus me invito factus non est mens actus’ which means ‘an act done by me
against my will is not my act’. This maxim supports the doctrine of mens rea for no person
can be held liable for an act done under fear or compulsion. For ex.- ‘A’ holds ‘B’ and
compels him at gun point to open the lock of C’s house. Here B’s act is not a willed or
intentional act.

Origin and Development of Mens Rea:

Notion of mens rea in early primitive societies was non-existent and liability was absolute
and offender was responsible whether he acted innocently or negligently. In the earlier times
the trials were held on fundamental presumption that a man must almost in every case be
deemed to have intended to do what he had done. In those days the distinction between crime
and tort was not clearly drawn and punishment in those days mainly consisted of money
compensation to the person wronged. Therefore, the mental attitude of a person was an
irrelevant consideration. But later on bodily punishment came as a substitute of the payment
of damages. It was then that the importance of mens rea at the time of commission of crime
was realized. With the passage of time the requirement of mens rea as an essential of a crime
has firmly taken its root. Before the 13th century, the doctrine of mens rea was almost non-
existent. Even then it was not completely disregarded and was kept in view in awarding the
punishment. But by the end of 17th century it was universally settled law that mens rea is an
essential ingredient of crime. III.

Application of Principle of Mens Rea to Statutory Offences:

The principle of mens rea has been applied to all common law offences in England without
any exception. But the answer to the question that whether it is applicable to statutory
offences was uncertain up to 1947. The question whether the common law requirement of
mens rea must be imported into every crime defined in the statute even where it is not
expressly mentioned as an essential element has been discussed in a number of cases. R. v.
Prince and Queen v. Tolson are the two leading cases on this point.

In the case of R. v. Prince, Prince Henry was tried for having unlawfully taken away an
unmarried girl, below the age of 16 years, out of the lawful custody and against the will of
her father, under the belief that she was 18 years old. Jury found that before the accused took
her away, the girl had told him that she has attained the age of 18 years. It was held that the
accused’s belief about the age of girl was no defence. It was argued that the statute did not
insist on this knowledge of the accused, the doctrine of mens rea, should, nevertheless be
applied and conviction be set aside in the absence of criminal intention.

16 Judges tried the case and all but one unanimously held Prince liable. By a majority of
fifteen to one the court held that: “A mistaken belief, even though based on reasonable
grounds, that the girl was over sixteen years of age is no defence to a charge of kidnapping-a
statutory offence of taking a girl under sixteen years of age out of possession and against the
will of her parents or guardian”. A distinction was drawn between the acts that were in
themselves innocent but made punishable by statute (malum prohibitum) and acts that were
intrinsically wrong and immoral (malum in se). In the former, a belief, a reasonable belief in
the existence of the facts, if true, would take the case out of the mischief of the statute and
would be a good defence; but in the letter case such a belief was immaterial unless, of course,
the law made it otherwise. In these offences which are malus in se, mens rea is presumed and
it need not be proved specifically.

IV. Mens Rea and Indian Penal Code:

J.D. Mayne, Ratan Lal Dheeraj Lal and various other authors have taken the view that the
common law doctrine of mens rea has no general application in India. Mayne observed
“Under the Penal Code such a doctrine of mens rea is wholly out of place. Every offence is
defined and the definition states not only what the accused must have done, but the state of
his mind with regard to the act when he was doing it.”

The word mens rea has nowhere been used in the IPC but it has been applied in the following
two ways:

i. While defining offences, words used indicate actual criminal intent required for the offence.
The expressions fraudulently, dishonestly, voluntarily, knowingly and intentionally, etc. used
in the definitions indicate the criminal intent. No such words have, however, been used in
case of offences which cannot be committed by innocent persons. In those offences criminal
intent is presumed. Such offences are Waging war against Government (Sec. 121), Sedition
(Sec. 124-A) and Counterfeiting of Coins (Sec. 232), etc.

ii. The IPC contains a separate chapter on General Exceptions (Sections. 76-106) which
indicate the circumstances where absence of criminal intent is presumed. This is negative
method of applying the principle of mens rea in IPC.

Thus, though the word mens rea as such is nowhere found in the IPC, its essence is reflected
in almost all the provisions of the Penal Code. Every offence created under IPC virtually
imports the idea of criminal intent or mens rea in some form or other.

The doctrine of mens rea has been applied by the Courts in India and it is now firmly settled
law that mens rea is an essential ingredients of offences.
V. Exceptions to the Principle of Mens Rea:

There are certain exceptional cases in which mens rea is not required to be proved, these
exceptions are:

i. Offences which are made as such by the statute itself. For ex. the offence of waging war
against the State or the offence of kidnapping.

ii. All offences relating to public nuisance, private libel and contempt of court.

iii. Offences against the welfare of public (Social Welfare Offences). In these offences the
principle of strict liability is followed. For ex. offences under the Prevention of Food
Adulteration Act, 1954, or the Protection of Civil Rights Act, 1955.

iv. The cases in which although the proceeding is criminal in form, but it is only a summary
mode of enforcing a civil right.

VI. Actus Reus:

It is the third essential element of crime. A human being and evil intent are not enough to
constitute a crime for you cannot know the intentions of a man. The thought of a man is not
triable. The criminal intent in order to be punishable must become manifest in some
voluntary act or omission. In other words, some overt act or illegal omission must take place
in pursuance of the guilty intention.

Actus Reus is commonly defined as a criminal act that was the result of voluntary bodily
movement. This describes a physical activity that harms another person or damages property.
Anything from a physical assault or murder to the destruction of public property would
qualify as an actus Reus.

Prof. Kenny defined the term actus Reus as “Such result of human conduct as the law seeks
to prevent.” The act done or omitted must be an act forbidden or commanded by some law.
Russel calls actus Reus as the ‘physical result of human conduct’. When criminal policy
regards such act as sufficiently harmful, the commission of the act is prohibited on pain of
punishment.
Omission, as an act of criminal negligence, is another form of actus Reus. In other word, an
act includes illegal omission also. A man is held liable if some duty is cast upon him by law
and he omits to discharge that duty.

General Exceptions:

Person is presumed to know the consequence of her/his act and is therefore held liable for it.
However, there are certain exceptions to this general rule, wherein a person may be excused
from criminal liability. General exceptions extend from Section 76 to Section 106, IPC, 1860:
Criminal law outlines several punishments for the various crimes committed by a person.
However, a person may not be held liable if the act committed by her/him falls under the
category of general exceptions.

General exceptions are further classified into:

1. Excusable Acts: Refer to the acts where criminal knowledge and intent are absent. E.g. :
Mistake of fact (defined U/S 76,79, IPC,1860) Accident (defined U/S 80, IPC, 1860) Infancy
(defined U/S 82, 83, IPC, 1860) Insanity (defined U/S 84, IPC, 1860 ) Intoxication (defined
U/S 85, 86, IPC, 1860)

2. Justified Acts: Refer to those acts where knowledge of the nature of act is there. However,
malafide intention is absent. Eg: Judicial act (defined U/S 77, 78, IPC, 1860) Necessity
(defined U/S 81, IPC, 1860) Consent (defined U/S 87 TO 92, IPC, 1860) Good faith (defined
U/S 53 &93, IPC,1860)

Private defense (defined U/S 96-106, IPC, 1860)

GENERAL EXCEPTIONS AT A GLANCE

Mistake: Defined U/S 76 and 79, IPC, 1860 These defenses exclude a person from criminal
liability when s/he is ignorant of the existence of the relevant fact/information or have
mistaken them to commit a wrongful act in good faith. (Sentence formation can be better, a
bit confusing) Illustration A person A is burning leaves in his lawn. Another person B
mistakes it as fire and enters to A’s property to calm the fire. Here, B is not liable for tress
passing in A’s property as the B’s intentions were made in good faith.
ESSENTIAL ELEMENTS OF MISTAKE AS A DEFENCE

Section 76: Act done by a person bound, or by mistake of fact behaving himself bound, by
law :

Mistake of Fact‘ Misconception about the existence or nonexistence of fact in someone‘s

mind. Nothing is an offence which is done by a person who is, or who reason of a mistake of
fact and not by reason, of a mistake of law in good faith believes himself to be, bound by law
to do it.

The Act of subordinate officer is protected under this Section.

This section is based on common law principle: Ignorantia facti excusat, ignorantia juris non
excusat. (Ignorance of the fact excuses, ignorance of the law excuses not.) Person is bound by
Law

Essentials of section 76:

(1) Act done by a Person bound, or by mistake of fact believing himself bound by law:

Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact
and not by reason of a mistake of law in good faith believes himself to be bound by law to do
it.

e.g. : A, a soldier fires on a mob by the order of his superior officer

M.H George V. State of Maharashtra (Air 1965 Sc 722) M.H. George was not an Indian
Citizen and was trying to smuggle gold through India. India recently passed a law prohibiting
to carry that much gold through India. M.H George was hiding the Gold in his jacket that too
34 kg of gold. Court said that even if M.H. George didn‘t know the law he is supposed know
it ignorance of law is no excuse and he was held liable under the relevant provision.

Essentials of section 76:

Person is bound by Law

In good faith he believes to be bound by law

Such believe is by reason of mistake of fact and not by mistake of law

Section 77: Act of judge with acting judicially:

Nothing is an offence which is done by a judge when acting judicially in the exercise of any
power which is, or which in good faith he believes to be, given to him by law.

In Megh Raj v. Zakir, the Allahabad High Court held that “no person acting judicially is
liable for an act done or ordered to be done in the discharge of his official duty within the
limits of his jurisdiction and in such a case the question of acting in good faith does not arise.
The question of good faith is irrelevant only when a judge acts without jurisdiction, but when
there is a jurisdiction, the immunity extends even to acts which constitute even an abuse of it.

Section 78: Act done pursuant to the judgment or order of Court

Nothing which is done pursuance or which is warranted by the judgment or order of, a court
of justice, if done whist such judgment or order remain in force, is an offence,
notwithstanding the Court may have had no jurisdiction to pass such judgment or order,
provided the person doing the act in good faith believes that the Court had such jurisdiction.

In Kapur Chand v. State, the accused (husband) forcibly removed the property of his wife
from her custody without her consent in pursuance to an order of the Magistrate. Held, the
husband committed no offence as he was protected under sec. 78, IPC.

Section 79- Act done by a person justified, or by mistake of fact believing himself, justified,
by law

Nothing is an offence which is done by any person who is justified by law, or who by reason
of a mistake of fact and not by reason of a mistake of law in good faith, believer himself to be
justified by law, in doing it.

Essentials of section 79:

 Person is justified by law

 In good faith he believes to be justified by law.
 Such belief is by reason of mistake of fact and not by mistake of law.
State of Andhra Pradesh v. Venu Gopal (1994 AIR 33)

Policeman sub inspector one head constable and a constable) arrested a person on suspicion
that he had received some stolen property and is involved in house breaking. Later the person
was found deal with injuries on his body. The prosecution alleged the police for wrongful
confinement and torture for taking out a confession out of him; Trial Court convicted the
police. High court acquitted giving them the defence of Sector 79- whatever policeman do
during investigation is justified by law. Supreme Court said that this view of High Court is
whally unwarranted in law beating and torturing has absolutely no relation to the process of
investigation.

Section 80. Accident in doing lawful act:

Nothing is an offence which is done by accident or misfortune, and without any criminal
intention or knowledge in the doing of lawful act in a lawful manner by lawful means and
with proper care and caution.

The main objective for providing this defence is that there is no criminal intention (Mens rea)
in Accident, if these 5 conditions are fulfilled it will be obvious that there was no criminal
intention and the person would get protection under section 80.

1. Act is done by accident or misfortune;

2. Act done was lawful;

3. Done in a lawful manner,

4. By lawful means;

5. Done with due care and caution

Example: A person killed by mistake by the use of hatchet

Section 81. Act likely to cause harm, but done without criminal intent, and to prevent
other harm:

Nothing is offence merely by reason of its being done with the knowledge that it is likely to
cause harm, if it be done without any criminal intention to cause harm, and in good faith for
the purpose of preventing or avoiding other harm to person or property. Jus Necessitates,
Quad necessitas non habet legem (Necessity knows no law) There essentials for this section
mandates act to be done in good faith and without any criminal intention i.e. there should be
absence of Mens Rea. R v. Dudley & stephens caselaw (shipwreck case) is the most
important case on self preservation. Examples: houses on fire, titanic ship, the burning train
etc.

Section 82: Act of a child under seven years of age

Nothing is an offence which is done by a child under seven years of age.

Section gives the defence of infancy Doli incapax (incapable of committing an offence):
states Absolute immunity.

Section 83: Act of a child above seven and under twelve of immature understanding :

Nothing is an offence which is done by a child above seven years of age and under twelve,
who has not attained sufficient maturity of understanding to judge of the nature and
consequence of his conduct on that occasion.

In case there is no evidence to prove ‗immature understanding‘ court will assume that the
child above seven and below 12 understood the nature of his acts.

Ulla Mahapatra v. The King (AIR 1950 Ori 261)-

The boy below 12 years shouted ‗ will cut you into pieces and did so to the victim, He was
convicted under Section 302.

Section 84 Act of a person of unsound mined :

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.

Essential Ingredients:

(1) Act must be done by a person of unsound mind.

(2) such person must be incapable of knowing :

(i) the nature of the act; or

(ii) that the act was contrary to law,or

(iii) that the act was wrong

Section 85: Act of a person incapable of judgment by reason of intoxication caused against
his will :

Nothing is an offence which is done by a person who, at the time of doing it, is by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing what is either
wrong, or contrary to law provided that the thing which intoxicated him was administered to
him without his knowledge or against his will.

Essentials to claim defence of intoxication:-

1. Accused must be intoxicated at the time of the commission of the crime and he is
incapable of knowing the nature of the act.

2. Because of reason of intoxication he was not in a condition to know the nature of his act.

3. Intoxicant must have been administered to him without his consent or against his will.
(Voluntary intoxication is no defence).

Section 86: Offence requiring a particular intent of knowledge committed by one who is
intoxicated

In cases where an act done is not an offence unless done with a particular knowledge or
intent, a person, who does the act in a state of intoxication shall be liable to be dealt with as if
he had the same knowledge as he would have had if he had been intoxicated, unless the thing
which intoxicated him was administered to him without his knowledge or against his will.

Now this section basically says that if you are intoxicated voluntarily you will be taken as
person who has the same knowledge as a normal person (who is not intoxicated), But this
section does not assume that you have the same intention as a normal person while
intoxicated.

So if you voluntarily drunk and stab your friend then it will be assumed that you had
knowledge that it will kill him, but if you can prove that you didn‘t have intention at that time
then you might be given less harsher punishment (say for culpable homicide instead of
murder)
Basudeo v. State of Pepsu

The appellant Basdev belonging to the village of Harigarh is a retired military Jamadar. He is
charged with the murder of a young boy named Maghar Singh, aged about 15 or 16 under
Section 302 of the Indian Penal Code. People living in the same village had gone to attend a
wedding in another village. All of them went to the house of the bride to take the midday
meal on 12th March, 1954. Some had settled down in their seats and some had not. The
appellant asked Maghar Singh, the young boy to step aside a little so that he may occupy a
seat of his choice. However, Maghar Singh did not move. The appellant whipped out a pistol
and shot the boy in the abdomen. The injury proved to be fatal. In the present case, evidence
proved that the accused was capable of moving himself independently and talking coherently.
He also came to the ‗darwaza‘ of Nath Singh himself. After shooting the deceased, he also
attempted to get away, which proved that he realized the consequences of his actions.
Deceased, he also attempted to get away, which proved that he realized the consequences of
his actions.

Hence, according to the SC ―The accused had, therefore, failed to prove such incapacity as
would have been available to him as a defence, and so the law presumes that he intended the
natural and probable consequences of his act, in other words, that he intended to inflict bodily
injury to the deceased and the bodily injury intended to be inflicted was sufficient in the
ordinary course of nature to cause death.‖ The conviction and sentence were held right.

Section87: Act not intended and not known to be likely to cause death or grievous hurt,
done by consent:

Nothing which is not intended to cause death, or grievous hurt, and which is not know by the
doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it
may cause, or be intended by the doer to case, to any person, above eighteen years, of age,
who has given consent, whether express or implied to suffer that harm, or by reason of any
harm which it may be known by the doer to be likely to cause to any such person who has
consented to take the risk of that harm

Volenti non fit injuria‟ - He who consent to an act has no right to claim damages for the
injury caused to him by that act.

Ingredients: 1. The Act is not intended and is not likely to cause death or grievous hurt.
2. The person consenting must be 18 years or above (consent can be express or implied).

Section 88: Act not intended to cause death, done by consent in good faith for person‘s
benefit:

Nothing, which is not intended to cause death, it an offence by reason of any harm which it
may cause or be intended by the doer to cause, or be known by the doer to be likely to cause,
to any person for whose benefit it is done good faith, and who has given a consent, whether
express or implied to suffer that harm, or to take the risk of that harm.

Ingredients:

1. Act not intended to cause death,

2. Act must be for the benefit of that person and done in good faith

3. If should be with the persons consent (consent can be express or implied)

Section 89: Act done in good faith for benefit of child or insane person, by or consent of
guardian:

Nothing which is done in good faith for the benefit of a person under twelve years of age, or
of unsound mind, by or by consent, either express or implied, of the guardian or other person
having lawful charge of that person, is an offence by reason of any harm which it may cause,
or be intended by the doer to cause or be known by the doer to be likely to cause to that
person:

Provisos:

First- That this exception shall not extend to the intentional causing of death, or to the
attempting to cause death,

Secondly- That this exception shall not extend to the doing of anything which the person
doing it knows to be likely to cause death, for any purpose other than the preventing death or
grievous hurt, or the curing of any grievous disease of infirmity;

Thirdly- That the exception shall not extend to the voluntary causing of grievous hurt, or to
the attempting to cause grievous hurt, unless it be for the purpose of preventing death or
grievous hurt, or the curing of any grievous disease or infirmity;
Fourthly- That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.

Section 90: Consent known to be given under fear or misconception

A consent is not such a consent as is intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent was given in consequence of
such fear or misconception; or

Consent of insane person: if the consent is given by a person who, from unsoundness of
mind, or intoxication is unable to understand the nature and consequence of that to which he
gives his consent; or

Consent of child: unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.

NOTE: If consent has been received by fear or injury (coercion, undue influence,
misconception of fact or unsoundness of mind, intoxication or immaturity of age in
understanding the nature of act, is then regarded as no consent.

Section 91: Exclusion of acts which are offences independently of harm caused

The exception in sections 87, 88 and 89 do not extend to act which are offences
independently of any harm which they may cause, or be intended to cause, or be known to be
likely to cause, to the person giving the consent or on whose behalf the consent is given.

The exception in section, 87, 88 and 89 do not extend to each which are offences
independently of any harm which they may cause, or be intended to cause, or be known to be
likely to cause, to the person giving the consent, or on whose behalf the consent is given.

There is an Act (Miscarriage)- It causes some harm to the women- if the women even consent
for the harm- It won‘t be covered under 87, 88, 89- because- Causing Miscarriage is also an
offence against the child – so the act is independently an offence under section.312 (IPC)
other than the harm caused which was consented.
The illustration under IPC gives the exception where Miscarriage is necessary to save the
women‘s life but after Medical Termination of Pregnancy Act, 1971‘ other exceptions are
also there apart from saving the life of the women‘.

Other Acts on which defences of 87, 88, and 89 do not extend are offences affecting public
health, safety convenience, decency morals etc. Like publication of obscene material even
with the consent of the concerned person is an offence because it is independently an offence
for reasons other than the harm caused to the consenting person.

This section extends only against human body and property and not against the public policy
and other provisions of law.

For example: Posting any obscene material, publishing of such obscene material etc are all
offence under the IPC.

Section 92: Act done in good faith for benefit of a person without consent

Not even a single act or thing is a crime if such reasons are present:

If any harm caused to a person for whose benefit it is done in good faith, even without the
person‘s consent, and

 Even when the circumstances were such that it was impossible for that person to signify the
consent, or

 That the person was incapable of giving consent, and

 Also the person has no guardian or any other person in lawful charge of him from whom it
is possible to obtain consent in time for the thing to be in benefit.

Essentials of Section 92

 An act done for the benefit of a person who suffers harm.

 The act done must be in good faith.

 There was no time to obtain the consent of the person.

 Where it is impossible to signify the consent of that person.

 There was no guardian or lawful in charge of that person to obtain the consent

Exceptions to section 92

 The doer cannot take advantage of this Section if he does the act intentionally to cause
death or intentionally attempts to cause death.

 If the doer knows that such an act if done then the result is likely to cause death then he
cannot be benefited under this Section

.  The doer should not extend the act to voluntarily causing hurt or even attempting to cause
hurt.

 The doer should not enhance his act in order to instigate or abet any person to make him
commit an offence.

Section 93: Communication made in good faith

No communication made in good faith in an offence by reason of any harm to the person to
whom it is made, if it is made for the benefit of that person. Essentials to this section

 The communication must be made in good faith.

 It must be made for the benefit of the person.

Section 94: Act to which a person is compelled by threats

Except murder, and offences against the State punishable with death, nothing is an offence
which is done by a person who is compelled to do it by threats, which, at the time of doing it,
reasonably cause the apprehension that instant death to that person will otherwise be the
consequence: Provided the person doing the act did not of his own accord, or from a
reasonable apprehension of harm to himself short of instant death, place himself in the
situation by which he became subject to such constraint.

Explanation1. A person who, of his own accord, or by reason of a threat of being beaten,
joins a gang of dacoits, knowing their character, is not entitled to the benefit of this
exception, on the ground of him being compelled by his associates to do anything that is an
offence by law
Explanation 2. A person seized by a gang of dacoits, and forced, by threat of instant death, to
do thing which is an offence by law, for example a smith compelled to take his tools and to
force the door of a house for the docoits to enter and plunder it, is entitled to the benefit of
this exception.

It exempts a man from criminal liability in respect of an act committed under compulsion or
duress, that reasonably causes the apprehension of death to that person. This is founded on
the well-known Maxim: “Actus me invito factus est nisi actus” an act which is done by me,
against my will is not my act, and hence I am not responsible for it

Exceptions

 Murder punishable with death; (a man cannot kill another to save his own life, but the one
who abets the murder or helps in disappearing the evidence is read under sec.94 for the
defence)

 Waging a war against the state or government of India, punishable with death (Only one
(O) which is punishable by death under IPC is under sec.121, the defence is not available to
any under law because it presumes that ―an individual should not place the sovereignty of
his country, even above his life‖).

Essentials

 The apprehension of threat must be reasonable and not voluntarily sought.

 The threat must be of instant death at the time of doing the act, and accused was with no
other option but to act.

 The threat must be confined to the person himself.

 Presence of threatner.

 This law extends to the IPC as well as special and local laws under sec.40 IPC.

Important case laws

 Duress – defence to Bestiality – R v. Bourne (1952)

 Duress – defence to Perjury – R v. Hudson, R v. Taylor (1971)

Section 95: Act causing slight harm / Acts of trivial nature

Nothing is an offence by reason that it cause or that it is intended to cause, or that it is known
to be likely to cause, any harm if that harm is so slight that no person of ordinary sense and
temper would complain of such harm.

Sec.95 is intended to prevent the penalisation of the negligible wrongs or offences of trivial
nature. Further it is based on the maxim “de Minimis non curat Lex” means the law will not
take notice of trifles (something of less importance or value). ―Harm‖ - connotes a wider
meaning under section 95 it includes physical injury, financial loss, loss of reputation, mental
worry or even apprehension of injury.

Important case laws which establishes the law is not maintainable in cases of socio economic
offences (food adulteration, trading in medical drugs) and any traffic offences.

 State of Maharashtra v. Taherbhai (1978)

 State of Karnataka v. M/s Lobo Medicals (1978)

 Bichitrananda naik v. State of Orissa (1978) Compounding of (O) – sec. 320Crpc

PRIVATE DEFENCE – (Sec.96-106)

The law of self-defence is not written but is born with us. We do not learn it or acquire it
somehow but it is in our nature to defend and protect ourselves from any kind of harm.
Bentham has said that fear of law can never restrain bad men as much as the fear of
individual resistance and if you take away this right then you become accomplice of all bad
men.

Munney Khan V. State (AIR 1971 Sc 149) All Sections (96-106) all read together to know
the scope and limitation of this defence. The following limitations will apply to this defence:

1. Not your right to exercise if there is sufficient time for recourse to public authorities.

2. The force used and harm caused should be only as much as reasonably necessary( Rafiq v.
State of Maharashtra, 1979) hit by sharp knife while he was being hit by lathi).

3. There should be reasonable apprehension of hurt grievous hurt or death to the person or
damage to the property.
Section 96: The law of private defence to body and property has been mentioned here. This
section lays down the general rule of the defence. It makes the acts, which are otherwise
criminal, justifiable if they are done while exercising the right of private defence. Normally,
it is the accused who takes the plea of self defence but the court is also bound to take
cognizance of the fact that the accused aced in self defence if such evidence exists.

Section97: This allows a person to defend his or anybody else's body or property from being
unlawfully harmed. Under English law, the right to defend the person and property against
unlawful aggression was limited to the person himself or kindred relations or to those having
community of interest e.g. parent and child, husband and wife, landlord and tenant, etc.
However, this section allows this right to defend an unrelated person's body or property as
well. Thus, it is apt to call it as right to private defence instead of right to self defence.

The right to private defence of the body exists against any offence towards human body, the
right to private defence of the property exists only against an act that is either theft, robbery,
mischief, or criminal trespass or is an attempt to do the same.

It is important to note that the right exists only against an act that is an offence. There is no
right to defend against something that is not an offence. For example, a policeman has the
right to handcuff a person on his belief that the person is a thief and so his act of handcuffing
is not an offence and thus the person does not have any right under this section.

Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and
even if the person being aggressed upon gets the better of the aggressor in the exercise of his
right to self defence, the aggressor cannot claim the right of self defence. As held by SC in
Mannu vs State of UP AIR 1979, when the deceased was waylaid and attacked by the
accused with dangerous weapons the question of self defence by the accused did not arise.

Section98: Right of private defence against the act of a person of unsound mind etc. When an
act which would otherwise be a certain offence, is not that offence, by reason of the youth,
the want of maturity of understanding, the unsoundness of mind or the intoxication of the
person doing that act, or by reason of any misconception on the part to that person, every
person has the same right of private defence against that act which he would have it the act
were that offence.

Section 99: Acts against which there is no right of private defence.

There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done or attempt to be done, by a public servant
acting in good faith under colour of his office, though that act may not be strictly justifiable
by law.

There is no right of private defence against an act which does not reasonably cause the
apprehension of death of grievous hurt, if done, or attempt to be done, by the direction of a
public servant acting in good faith under colour of his office though that direction may not be
strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to
protection of the public authorities.

Extent to which the right may be exercised; The right of private defence in no case extends to
the inflicting of more harm than it is necessary to inflict for the purpose of defence.

The person should know that act is done by public servant.

[And should show the authority proof if demanded]

Like a policeman search in house should show the search warrant

Refiq v. State of Maharashtra (AIR 1979 SC1179)

The deceased was attacking the accused with a lathi but the accused took out a knife and
stabbed him to death. The medical showed that the wound was deep and the knife pierced
through the heart with great force resulting in death because of pouring out of blood from the
heart

It was held that it was self defence but the Accused used excessive force so he is liable for
culpable homicide not amounting to murder.

Section 100. When the right of private defence of the body extends to causing death.

The right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm, to the assailant, if
the offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated namely:-
First – Such an assault as may reasonable cause the apprehension that death will otherwise be
the consequence of such assault;

Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be consequence of such assault;

Thirdly- An assault with the intention of committing rape;

Fourthly- An Assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

Sixthly- An assault with the intention of wrongfully confining a person, under circumstances
which may reasonable cause him to apprehend that he will be unable to have recourse to the
public authorities for his releases.

Seventhly- An act or administering acid or an attempt to throw or administer acid which may
reasonable cause the apprehension that grievous hurt will otherwise be the consequence of
that act. (Added by Criminal law (amendment) Act, 2013.

Section 101. When such right extends to causing any harm other than death. –

If the offence be not of any of the descriptions enumerated in the last preceding section, the
right of private defence of the body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary
causing to the assailant of any harm other than death.

Section 102. Commencement and continuance of the right of private defence of the body. –

The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to commit the offence through the offence
may not have been committed; and it continues as long as such apprehension of danger to the
body continues.

Section 103: When the right of private defence of property extends to causing death. –

The right of private defence of property extends, under the restrictions mentioned in section
99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence,
the committing of which, or the attempting to commit which, occasions the exercise of the
right, be an offence of any of the descriptions hereinafter enumerated, namely:

First. – Robbery;

Secondly, - House-breaking by night;

Thirdly- Mischief by fire committed on any building, tent or vessel, which building, tent or
vessel is used as a human dwelling, or as a place for the custody of property;

Fourthly- Theft, mischief, or house-trespass, under such circumstances as may reasonably

cause apprehension that death or grievous hurt will be the consequence, if such right of
private defence is not exercised.

Section 104. When such right to causing any harm other than death.-

If the offence, the committing of which, or the attempting to commit which occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of
the descriptions enumerated in the last preceding section, that right does not extend to the
voluntary causing of death, but does extend, subject to the restrictions mentioned in section
99, to the voluntary causing to the wrong-doer of any harm other than death.

Section 105. Commencement and continuance of the right of private defence of property. –

The right of private defence of property commences when a reasonable apprehension of

danger to the property commences.

- The right of private defence of property against theft continues till the offender has effected
his retreat with the property or either the assistance of the public authorities is obtained, or
the property has been recovered.

- The right of private defence of property against robbery continues as long as the offender
causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the
fear of instant death or of instant hurt or of instant personal restraint continues.

- The right of private defence of property against criminal trespass or mischief continues as
long as the offender continues in the commission of criminal trespass or mischief.
- The right of private defence of property against house-breaking by night continues as long
as the house-trespass which has been begun by such house-breaking continues:

Section 106. Right of private defence against deadly assault when there is risk of harm to
innocent person —

If in the exercise of the right of private defence against an assault which reasonably causes
the apprehension of death, the defender be so situated that he cannot effectually exercise that
right without risk of harm o to an innocent person, his that right without risk of harm to an
innocent person, his right or private defence extends to the running of that risk.