How far is mistake of fact, accident, act of child, insanity, and intoxication are valid and good defences under IPC?

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Q. How far is mistake of fact, accident, act of child, insanity, and intoxication are valid and good defences under IPC? In IPC, mistake of law is no defence but mistake of fact is a good defence. How? What exemptions have been given by IPC to minors for an offence under General Exceptions? What has to be proved by a person claiming immunity from criminal liability on the ground of Insanity?

The general rule is that it is the duty of the prosecution to prove the prisoner’s guilt beyond doubt and if there is any reasonable doubt then the benefit of doubt is given to the accused. The prosecution must prove beyond doubt that the accused performed the act with intention and with full knowledge of the consequences of the act. This is based on the maxim, “actus non facit reum, nisi mens sit rea”, which means that mere doing of an act will not constitute guilt unless there be a guilty intent’.

IPC defines certain circumstances in which it is considered that the accused had no evil intention. These circumstances are nothing but exceptional situations that negate mens rea. They create a reasonable doubt in the case of the prosecution that the act was done by the accused with evil intention. However, it is the burden of the accused to prove that such circumstances existed at the time of crime and the presumption of such circumstances is against the accused. If the accused proves that such circumstances indeed existed, then his act is not considered a crime. In K M Nanavati vs State of Maharashtra AIR 1962, it was held that it is the duty of the prosecution to prove the guilt of the accused or the accused is presumed to be innocent until his guilt is established by the prosecution beyond doubt. 
Chapter IV (Sec 76 to 106) of IPC defines such circumstances. Upon close examination of these sections, it can be seen that they define two types of circumstances – one that make the act excusable (Sec 76 to 95), which means that the act itself is not an offence, and second (Sec 96 to 106) that make the act justifiable, which means that although the act is an offence but it is otherwise meritorious and the accused is justified by law in doing it.

Mistake of fact, accident, act of child, insanity, and intoxication – All these cases are defined in General Exceptions of IPC and they make the act of the accused excusable. The presence of any of these conditions is a good defence because they negate the mens rea. Let us look at them one by one.

Mistake of fact

Sometimes an offence is committed by a person inadvertently. He neither intends to commit an offence nor does he know that his act is criminal. He may be totally ignorant of the existence of relevant facts. The knowledge of relevant facts is what really makes an act evil or good. Thus, if a person is not aware of the facts and acts to the best of his judgment, his act cannot be called evil. Under such circumstances he may take the plea that his acts were done under the misconception of the facts. Such a mistake of fact is acknowledged as a valid defence in section 76 and 79 of IPC.

Section 76 – Act done by a person bound or by mistake of fact believes to be 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 a reason of a mistake of law, in good faith believes himself to be bound by law to do it.

Illustration – 
A, a soldier fires on a mob upon orders from his superior, in conformity with the commands of the law. He has committed no offence.
A, an officer of court of justice, upon ordered by that court to arrest Y, after due inquiry, believing Z to be Y, arrests Z. He has committed no offence.

Section 79 – Act done by a person justified or by a mistake of fact believing himself justified by law – Nothing is an offence which is done by the a 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 believes himself to be justified by law, in doing it.

Illustration – 
A sees Z doing what appears to be murder. A, in the exercise to the best of his judgment, exerted in good faith of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence though it may turn out that Z was acting in self defence.

Difference between sec 76 and 79
The only difference between sec 76 and 79 is that in section 76, a person believes that he is bound by to do a certain act while in 79, he believes that he is justified by law to do a certain act. For example, a policeman believing that a person is his senior officer and upon that person’s orders fires on a mob. Here, he is bound by law to obey his senior officer’s orders. But if the policeman believes that a person is a thief, he is not bound by law to arrest the person, though he is justfied by law if he arrests the person.

To be eligible in either of the sections, the following conditions must be satisfied – 

  1. it is a mistake of fact and not a mistake of law that is excusable.
  2. the act must be done in good faith.

Meaning of Mistake – 
A mistake means a factual error. It could be because of wrong information, i.e. ignorance or wrong conclusion. For example, an ambulance driver taking a very sick patient to a hospital may be driving faster than the speed limit in order to reach the hospital as soon as possible but upon reaching the hospital, it comes to his knowledge that the patient had died long time back and there was no need to drive fast. However, since he was ignorant of the fact, breaking the speed limit is excusable for him. A person sees someone remove a bulb from a public pole. He thinks the person is a thief and catches him and takes him to the police only to learn that the person was replacing the fused bulb. Here, he did the act in good faith but based on wrong conclusion so his act is excusable.

To be excusable, the mistake must be of a fact and not of law. A mistake of fact means an error regarding the material facts of the situation, while a mistake of law means an error in understanding or ignorance of the law. A person who kills someone cannot take the defence of mistake saying he didn’t know that killing is a crime because this is a mistake of law and not of fact. But, as in Waryam Singh vs Emperor AIR 1926, he can take a defence of mistake saying he believed that the killed person was a ghost because that would be a mistake of a fact.

R vs Prince 1875, is an important case where a person was convicted of abducting a girl under 18 yrs of age. The law made taking a woman under 18 from her guardian without her guardian’s permission a crime. In this case, the person had no intention to abduct her. She had gone with the person with consent and the person had no reason to believe that the girl was under 18. Further, the girl looked older than 18. However, it was held that by taking a girl without her guardian’s permission, he was taking a risk and should be responsible for it because the law made it a crime even if it was done without mens rea. In this case, five rules were laid down which are guidelines whenever a question of a mistake of fact or mistake of law arises in England and elsewhere – 

  1. When an act is in itself plainly criminal and is more severely punishable if certain circumstances coexist, ignorance of the existence is no answer to a charge for the aggravated offence.
  2. When an act is prima facie innocent and proper unless certain circumstances co-exist, the ignorance of such circumstances is an answer to the charge.
  3. The state of the mind of the defendants must amount to absolute ignorance of the existence of the circumstance which alters the character of the act or to a belief in its non-existence.
  4. When an act in itself is wrong, and under certain circumstances, criminal, a person who does the wrongful act cannot set up as a defence that he was ignorant of the facts which would turn the wrong into a crime.
  5. When a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the statute whether responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case, his knowledge is immaterial.

The above guidelines were brought in Indian law in the case of The King vs Tustipada Mandal AIR 1951 by Orissa HC.
In R vs Tolson 1889, a woman’s husband was believed to be dead since the ship he was traveling in had sunk. After some years, when the husband did not turn up, she married another person. However, her husband came back and since 7 years had not elapsed since his disappearance, which are required to legally presume a person dead, she was charged with bigamy. It was held that disappearance for 7 yrs is only one way to reach a belief that a person is dead. If the woman, and as the evidence showed, other people in town truly believed that the husband died in a shipwreck, this was a mistake of fact and so she was acquitted.

However, in R vs White and R vs Stock 1921, a person was convicted of bigamy. Here, the husband with limited literacy asked his lawyers about his divorce, who replied that they will send the papers in a couple of days. The husband construed as the divorce was done and on that belief he married another woman. It was held that it was a mistake of law.

Good faith
Another condition that must be satisfied to take a defence of mistake of fact is that the act must be done in good faith. Section 52says that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Thus, if one shoots an arrow in the dark without ascertaining no one is there, he cannot be excused because he failed to exercise due care.
If a person of average prudence in that situation can ascertain the facts with average deligence, a person taking the defence of mistake of those facts cannot be said to have taken due care and thus, is not excusable.

Accident

Accidents happen despite of nobody wanting them. There is no intention on the part of anybody to cause accident and so a loss caused due to an accident should not be considered a crime. This is acknowledged in Section 80 of IPC, which states thus – 

Section 80 – Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in doing of a lawful act, in a lawful manner by lawful means with proper care and caution.

Illustration – A works with a hatchet; the head flys off and kills a person standing nearby. Here, if there was no want of proper caution on the part of A, his act is excusable and is not an offence.

From section 80, it can be seen that there are four essential conditions when a person can take the defence of an accident – 

1. The act is done by accident or misfortune –  Stephen in his digest of criminal law explains that an effect is said to be accidental if the act that caused it was not done with an intention to cause it and if the occurance of this effect due to that act is not so probable that a person of average prudence could take precautions against it. The effect comes as a surprise to the doer of average prudence. SInce he does not expect it to happen, he is unable to take any precaution against it.
For example, a firecraker worker working with Gun powder knows that it can cause explosion and must take precaution against it. If it causes an explosion and kills a third person, he cannot claim defence of this section because the outcome was expected even though not intended. 
However, if a car explodes killing a person, it is an accident because a person on average prudence does not expect a car to explode and so he cannot be expected to take precautions against it.

2. There must not be a criminal intent or knowledge in the doer of the act – To claim defence under this section, the act causing the accident must not be done with a bad intention or bad motive. For example, A prepares a dish for B and puts poison in it so as to kill B. However, C comes and eats the dish and dies. The death of C was indeed an accident because it was not expected by A, but the act that caused the accident was done with a criminal intention.
In Tunda vs Rex AIR 1950, two friends, who were fond of wrestling, were wresting and one got thrown away on a stone and died. This was held to be an accident and since it was not done without any criminal intention, the defendant was acquitted.

3. The act must be lawful, and done in a lawful manner, and by lawful means – An accident that happens while doing an unlawful act is no defence. Not only that, but the act must also be done in a lawful manner and by lawful means. For example, requesting rent payment from a renter is a lawful act but threatening him with a gun to pay rent is not lawful manner and if there is an accident due to the gun and if the renter gets hurt or killed, defence under this section cannot be claimed.
In Jogeshshwar vs Emperor, where the accused was fighting with a man and the man’s pregnant wife intervened. The accused aimed at the woman but accidently hit the baby who was killed. He was not allowed protection under this section because he was not doing a lawful act in a lawful manner by lawful means.

4. Proper precautions must be taken while doing the act – The act that causes the harm must have been done with proper care and precautions. An accident caused due to negligence is not excusable. A person must take precautions for any effects that any person with average intelligence would anticipate. For example, a owner of a borewell must fence the hole to prevent children falling into it because any person with average prudence can anticipate that a child could fall into an open borewell.
In Bhupendra Singh Chudasama vs State of Gujarat 1998, the appellant, an armed constable of SRPF shot at his immediate supervisor while the latter was inspecting the dam site in dusk hours. The appellant took the plea that it was dark at that time and he saw someone moving near the dam with fire. He thought that there was a miscreant. He shouted to stop the person but upon getting no response he fired the shot. However, it was proven that the shot was fired from a close range and it was held that he did not take enough precaution before firing the shot and was convicted.

Accident in a act done with consent
Section 87 extends the scope of accident to cases where an act was done with the consent of the victim. It says thus – 

Section 87 – Nothing which is not intended to cause death or grevious hurt and which is not known to the doer to be likely to cause death or grevious hurt is an offence by reason of any harm that it may cause or be intended by the doer to cause to any person above eighteen years of age, who has given consent whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.

Illustration – A and Z agree to fence with each other for amusement. This agreement implies the consent by each to suffer any harm which in the course of such fencing may be caused without foul play; and if A, while playing fairly, hurts Z, A committs no offence.

This is based on the premise that every body is the best judge for himself. If a person knowingly undertakes a task that is likely to cause certain damage, then he cannot hold anybody responsible for suffering that damage. Thus, a person watching another litting up firecrackers agrees to take the risk of getting burned and must not hold anybody responsible if he gets burned. In Nageshwar vs Emperor, a person asked the accused to try dao on his hand believing that his hand was dao proof due to a charm. He got hurt and bled to death. However, the accused was acquitted because he was protected under this section. The deceased consented to the risk of trying dao on his hand.

Act of child, insanity, intoxication

As mentioned before, to hold a person legally responsible for a crime, in general, evil intention must be proved. A person who is not mentally capable of distinguishing between good and bad or of understanding the implications of an action cannot be said to have an evil intention and thus should not be punished. Such incapacity may arise due to age, mental illness, or intoxication. Let us look at each of these one by one – 

Act of child

It is assumed that a child does not have an evil mind and he does not do things with evil intention. He cannot even fully understand the implications of the act that he is doing. Thus, he completely lacks mens rea and should not be punished. IPC contains for following exemptions for a child – 

Section 82 – Nothing is an offence which is done by a child under seven years of age.

Section 83 – Nothing is an offence which is done by a child above seven years of age and below twelve years of age who has not attained the sufficient maturity of understanding to judge the nature and consequences of this conduct on that occasion.

Through these sections, IPC acknowledges the fact that children under seven years of age cannot have suffient maturity to commit a crime and is completely excused. In Indian law, a child below seven years of age is called Doli Incapax. In Queen vs Lukhini Agradanini 1874 , it was held that merely the proof of age of the child would be a conclusive proof of innocence and would ipso facto be an answer to the charge against him.

However, a child above seven but below twelve may or may not have sufficient maturity to commit a crime and whether he is sufficiently mature to understand the nature and consequences of the act needs to be determined from the facts of the case. To claim a defence under section 83, a child must 

  1. be above seven and below twelve years of age.
  2. not have attained sufficient maturity to understand the nature and consequences of his act.
  3. be immature at the time of commission of the act.

Section 83 provides qualified immunity because presumes that a child above seven and below twelve has sufficient maturity to commit a crime and the burdon is on the defence to prove that he did not possess sufficient . Thus, inHiralal vs State of Bihar 1977, the boy who participated in a concerted action and used a sharp weapon for a murderous attack, was held guilty in the absence of any evidence leading to boy’s feeble understanding of his actions.
In English law, a boy below 14 years is deemed incapable of raping a woman but no such protection is offered in India and in Emperor vs Paras Ram Dubey, a boy of 12 years of age was convicted of raping a girl.

Insanity

A person may be rendered incapable of judging an action as right or wrong due to several kinds of deficienty in mental faculty or a disease of mind. Such people are called insane. Their position is same as childern below the age of discretion. From time to time several approches have been adopted to understand insanity and to see whether a person was insane or not at the time of his act.

Wild Beast Test
This test was evolved in R vs Arnold 1724. Here, the accused was tried for wounding and attempting to kill Lord Onslow. By evidence, it was clear that the person was mentally deranged. J Tracy laid the test as follows, “If he was under the visitation of God and could not distinguish between good and evil and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever.”

Insane Delusion Test
This test was evolved in Hadfield’s Case in 1800, where Hadfield was charged with high treason and attempting the assasination of Kind George III. He was acquitted on the ground of insane delusion. Here, the counsel pleaded that insanity was to be determined by the fact of fixed insane delusions with which the accused was suffering and which were the direct cause of his crime. He pointed out that there are people who are deprived of their understanding, either permanently or temporarily, and suffer under delusions of alarming description which overpowers the faculties of their victims.

M’ Naghten’s Rules
In this case, Danial M’Naghten was tried for the murder of a private secretary of the then prime minister of England. He was acquitted on the ground of insanity. This caused a lot of uproar and the case was sent to bench of fifteen judges who were called upon to lay down the law regarding criminal responsibility in case of lunacy. Some questions were posed to the judges which they had to answer. These questions and answers are knows as M’Naghten’s Rules which form the basis of the modern law on insanity. The following principals were evolved in this case – 

  1. Regardless of the fact that the accused was under insane delusion, he is punishable according to the nature of the crime if, at the time of the act, he knew that he was acting contrary to law.
  2. Every man must be presumed to be sane until contrary is proven. That is, to establish defence on the ground of insanity, it must be clearly proven that the person suffered from a condition due to which he was not able to understand the nature of the act or did not know what he was doing was wrong.
  3. If the accused was conscious that the act was one that he ought not to do and if that act was contrary to law, he was punishable.
  4. If the accused suffers with partial delusion, he must be considered in the same situation as to the responsibility, as if the facts with respect to which the delusion exists were real. For example, if the accused, under delusion that a person is about to kill him and attacks and kills the person in self defence, he will be exempted from punishment. But if the accused, under delusion that a person has attacked his reputation, and kills the person due to revenge, he will be punishable.
  5. A medical witness who has not seen the accused previous to the trial should not be asked his opinion whether on evidence he thinks that the accused was insane.

The Indian Law recognizes the first two principals and incorporates them in section 84. 

Section 84 – Nothing is an offence which is done by a person who, at the time of doing it, by the 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, a person claiming immunity under this section must prove the existence of the following conditions – 

  1. He was of unsound mind – Unsound Mind is not defined in IPC. As per Stephen, it is equivalent to insanity, which is a state of mind where the functions of feeling, knowing, emotion, and willing are performed in abnormal manner. The term Unsoundness of mind is quite wide and includes all varieties of want of capacity whether temporary or permanent, or because of illness or birth defect. However, mere unsoundness of mind is not a sufficient ground. It must be accompanied with the rest of the conditions.
  2. Such incapacity must exist at the time of the act – A person may become temporarily out of mind or insane for example due to a bout of epilepsy or some other disease. However, such condition must exist at the time of the act. In S K Nair vs State of Punjab 1997, the accused was charged for murder of one and greivious assault on other two. He pleaded insanity. However, it was held that the words spoken by the accused at the time of the act clearly show that he understood what he was doing and that it was wrong. Thus, he was held guilty.
  3. Due to incapacity, he was incapable of knowing –
    1. either the nature of the act.
    2. or that the act is wrong.
    3. or that the act is contrary to law.

The accused in not protected if he knows that what he was doing was wrong even if he did not know that what he was doing was contrary to law. In Chhagan vs State 1976, it was held that mere queerness on the part of the accused or the crime does not establish that he was insane. It must be proved that the cognitive faculties of the person are such that he does not know what he has done or what will follow his act.

Intoxication
Several times intoxication due to drinking alcohol or taking other substances cause the person to lose the judgment of right or wrong. In early law, however, this was no defence for criminal responsibility. In recent times this has become a valid defence but only if the intoxication was involuntary. Section 85 says thus – 

Section 85 – 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.

This means that to claim immunity under this section, the accused mus prove the existence of following conditions – 

  1. He was intoxicated.
  2. Because of intoxication, he was rendered incapable of knowing the nature of the act or that what is was doing was wrong or contrary to law.
  3. The thing that intoxicated him was administered to him without his knowledge or against his will.

Director of Public Prosecution vs Beard 1920 was an important case on this point. In this case, a 13 yr old girl was passing by a mill area in the evening. A watchman who was drunk saw her and attempted to rape her. She resisted and so he put a hand on her mouth to prevent her from screaming thereby killing her unintentionally. House of lords convicted him for murder and the following principles were laid down – 

  1. If the accused was so drunk that he was incapable of forming the intent required he could not be convicted of a crime for which only intent was required to be proved.
  2. Insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The difference between being drunk and diseases to which drunkenness leads is another. The former is no excuse but the later is a valid defence if it causes insanity.
  3. The evidence of drunkenness falling short of proving incapacity in the accused to form the intent necessary to commit a crime and merely establishing that his mind was affected by the drink so that he more readily gave way to violent passion does not rebut the presumption that a man intends the natural consequences of the act.

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