Absence of Criminal IntentCriminal intention means the purpose of doing an act forbidden by criminal law without just cause or excuse. So, there are certain acts which appear to be criminal, but are done without any criminal intent. It is fair that such acts should not be penalized. And therefore they are rightly exempted from the category of ‘Offences’. Criminal intent considered under seven act which are Section 81- section 86 and 92- 94.A.Act done to avoid other harm(Section 81) Section 81 states that any act done with the knowledge that it is likely to cause harm, but done in a good faith and without any criminal intent to prevent or avoid other harm to person or property, is not an offence. It is to be remembered that section 81 will afford protection, only where harm is caused without any criminal intention.B.Act of Child (Section 82 and 83)In criminal law children are protected under certain circumstances for acts committed by them.An act of a child-i. Under seven years is no offence (section 82)ii. Above seven year and under twelve year, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct, is also no offence (section 83)In one case Ulla Mahapatra,(1950) Cutt.208- in this case the accused, a boy, 11 years old, picked up a knife and threatened to cut the deceased to pieces, and did actually kill him. Here the maxim militia suppletoetatem applied, and that his action could lead only one inference, namely that he did what he intended to do, and that he knew that act was done with intention.The maxim Malitiasuppletoetatem means that a child under 12 and above 7 has attained sufficient maturity of understanding to judge the nature of his conduct and he will be liable.C.Act of an insane person (section 84)Section 84 says that the liability of an insane person for acts or offences committed by him. It provides that nothing is an offence which is done by a person, who is of unsound in nature, is incapable of knowing the nature of the act, or that he is doing what is wrong or opposite to law.· Test of insanity of law- every mentally diseased person exempted from criminal responsibility, such exemption is allowed only where the insane person incapable of knowing the nature of the act or that what he is doing is either wrong or opposite of law.· Insanity caused by drunkenness- Excessive consumption of alcohol impairs a person’s judgment and his ability to control his emotion and mind. In one case the mother of a child was an alcoholic who normally consumed wine, but before strangling her child, she had consumed almost one full bottle of vodka and pleaded that she knew nothing of what had happened.· Insane delusion- a person who, under an insane delusioncommits an offence as to existing facts, depend upon the nature of the delusion.· Delirium tremens- delirium tremens is a kind of madness brought about by habitual excessive liquor and it also occurs in case of illness.D.Act of an intoxicated person (Section 85-86)· Section 85 states that nothing is an offence which is done by a person who, owing to intoxication, is incapable of knowing the nature of the act, or that what he is doing is against the law, provided that the thing which intoxicated him was administered to him without this knowledge or against his will. Voluntary intoxication is no excuse for the crime. But if he gets intoxicated through fraud and thereby becomes incapable of understanding the nature and quality of the act, he must be excused. Lunacy is disease and is to be pitied; drunkenness is a vice and is therefore to be sentenced.· Section 86 says that the presumption for certain crimes committed by intoxicated persons. Therefore the act done with the intention or knowledge , and such an act is committed by an intoxicated person, he will be presumed to have possessed the knowledge requisite for the offence, unless otherwise he can show that he was intoxicated without knowledge or against his will.E.Bona fide act done for another’s benefit (Section 92)An act committed without criminal intention is described in section 92.Nothing is a crime which isdone by reason of any harm and may cause to the person for whose benefit it is done in a good faith and even without that person’s consent:i. If the conditions are such that it is impossible for that person to signify consentii. If person is incapable of giving consent and has no guardian from whom consent can be obtained in time.F.Communication made in good faith (Section 93)Any communication made in good faith to a person is not an offence, even though such communication may cause harm to the person to whom it is made if it is for such person’s benefit.Communication must be –I. Made in good faithII. For the benefit of the person.G.Act done under compulsion or threat (Section 94)Section 94 states that murder and offences against the state punishable with death, nothing is an offence, which is done by a person compelled to do by threats which at the time reasonably cause the concern that instant death to that person will otherwise be the consequence. Crimes committed under compulsion or threat will be excused only if the threat is to cause instant death, and not future death. Crime of attempt to commit murder would be excused if committed under threat of instant death.
Category: Legal Concept
Act done with consent (section 87-91)
Section 87– An act not intended or known to be likely to cause death or grievous hurt, which act causes any harm to a person above 18 years of age who has given consent to suffer it is not an offence.·
Section 88-the section 88 states that nothing which is not intended to cause death is an offence by reason of any harm which it may cause, or intention to cause to any person for whose benefit it is done in good way, and who has given his consent to suffer that harm or to take the risk of that harm.·
Section 89states that which caused any harm to a person less than twelve years of age or an insane person, for whose benefit it is done in good faith by his guardian, or by consent of his guardian is not an offence.· Section 90 defines consent ‘ an act of reason accompanied with deliberation, the mind weighing as in balance in good and evil on each side’. Consent is defined in sections 90 which run in negative term.It lay down as to what is not consent and can be analyzed as under.
1. A person under fear of injury or misconception of fact, and the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or misconception
2. 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.A consent given on a misrepresentation of fact is one given under a misconception of facts within the meaning of section 90 and would not be a valid consent as contemplated by the code.· Section 91 correlate to section 87,88 and 89.Illustration: causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an crime independently of any harm which it may cause or be intended to cause to the woman and therefore, it is not an offence ‘by reason of such harm’, and the consent of the woman or her guardian to the causing of such type of miscarriage does not justify the act.v Trifling act (Section 95)
Section 95 is based on the maxim ‘De minimis not curatlex’. It means that law does not take account of trifles. It deals with those cases which come within the letter of the penal law, but not within its spirit. Like dipping a pen in another man’s ink-pot would technically be theft, but the same would not be punished as an offence, the act being extremely trifling. This section is intended to prevent penalization of wrongs or offences of a trivial character. whether an act which amounts to an offence is undoubtedly depend upon the nature of the injury, the position of the parties the knowledge or intention with which the offensive act is done and other related circumstances.
Right of private defense (section 96-106)
Every person has a right has a right to defend his own person against injury or restraints, and his own property against any act which is an offence falling under the category of theft, robbery , mischief or criminal trespass, or which is an attempt to commit such an offence.I. Section 96 states that nothing is an offence which is done in the exercise of the right to private defense.There are four general points with the connection with the right of private defence:➢ There is no right private defense under the code against any act which is not in itself an offense under the code.➢ The right of private defense cannot be pleaded by person who believe they will be attacked, court the attack.➢ The general rule is that the accused must specifically plead the right of private defence.➢ Where a party of men is determined to clear their right for supposed by unlawful force, and they engage in a fight with another party of men, equally determined to clear their right by unlawful force, no question of the right of private defence can arise.A. Right to privatedefenceof the body (Section 97-98)➢ Section 97 states that every person has a right to defend his own body or that of another against any offence affecting the human body.➢ Section 98 states that every person has the right of private defence of the body against an act, which would otherwise be a certain offence, but is not that offence by reason of the doer being of unsound mind, a minor an intoxicated person or a person acting under misconception of fact.B. Acts against there is no right of privatedefenceof body (Section 99)➢ Section 99 states that there is no right of private defense of the body against an act which does not reasonably cause the apprehension of death or grievous hurt. If done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not not be strictly justificable by law.The right of private defense also exists when the act is done by the direction of a public servant.➢ Also there is no right of private defence of the body in a case in which there is time to have recourse to the protection of the public authorities.C. When right extend to the causing of death or any other harm to the offender (Section 100)There are acts of aggression mentioned if the right or private defense of the body extends to causing even the death of the offender in cases:i. An assault that gives grievous hurt.ii. An assault with the intention of committing rape.iii. An assault with the intention of gratifying unnatural lust.iv. An assault with the intention of wrongfully confining a person.v. An assault with the intention of kidnapping or abducting.vi. An act to throwing acid or attempt to do so.D. Right when commences, and how long it continues (Section 102):Section 102 states that the right of self-defense commences as soon as reasonable act of danger of the body arised from an attempt or threat to commit the offence, though the offence may not have been committed and continue as long as such act of danger to the body continues.In one case name Bayadas Bowri Vs. State of Assam, 1982)- the accused was a poor, disabled man with only one hand , a stronger person, assaulted him with a bamboo, and in his fight for life, the accused gave a blow with a pen-knife, which proved fatal. On these facts, the court held that if a disabled person used a pen-knife to escape death, it cannot be said to be an act done in excess, and the accused would be entitled to the protection of section 100.
Right of private defense of property
Acts against which right ofdefenceof property can be exercised.• Every person has right to defend his or other’s property whether it is movable or immovable➢ Against theft, robbery, mischief or criminal trespass, or any act which is an attempt to commit theft, robbery, mischief or criminal trespass.➢ Against the act of a luncatic, a minor, or an intoxicated person, or a person acting under a misconception of fact (Section 97-98)B. Acts against which there is no right of private defense of property This act is including in section 99 to lay down the limitation to the right of private defence of property. There are two acts against which the right of private defence of property cannot exercise.➢ There is no right of private defense if act done in good faith and public servant acting in good faith.➢ There is no right of private defense of property in cases in which there is time to have recourse to the protection of the public authorities.Section 99 provide private defense in no case extends to the infliction of more than it is necessary to inflict for the purpose of defense.C. Right when commences and how long it continues (Section 105)Under section 105 the right commences when a reasonable apphrension of danger to the proeperty commences:▪ Against theft▪ Against robbery▪ Against criminal trespass or mischief▪ Against house breaking by nightSection 102 and 105 indicate that the right of private defense of the body or property commences and continues as long as the danger lasts.D. Subject to the restrictions contained in section 99, the right extend to the causing of death or any other harm to the offender in the following cases –▪ In case of robbery▪ House breaking by night▪ Mischief by fire to any building, tent or vessel, used as human dwelling or as a place for the custody of property.
GENERAL DEFENCES UNDER TORT LAW
Ordinarily, in tort law, the defendant/ tort-feasor will be held liable given all essentials are fulfilled, however, there are some general defences available to him/her to get rid of the liability arising out of the tort. These are known as ‘General defences’ in the law of tort. The defences available are as follows:
- Volenti non fit injuria – When a person consents to infliction of some harm upon himself, he/she has no remedy for that in tort. Essentials to be proved for taking this defence are- 1. The plaintiff knew that the risk exists and 2. knowing the same, he/she agreed to suffer the harm.
In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at a motor car race on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff implicitly took the risk of such an injury. The danger is inherent in the sport which any spectator could foresee hence, the defendant was not liable. In this defence, it is also necessary that the plaintiff’s consent is free.
- Plaintiff the wrongdoer – The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. In Bird v Holbrook, the plaintiff, who trespassed over the defendant’s land was entitled to claim compensation for injury caused by a spring gun used by the defendant, without notice, in his garden.
- Inevitable Accident – Accident means an unexpected injury and if the same could not have been foreseen or avoided, in spite of reasonable care on the part of the defendant, then it can be termed as an inevitable accident. It is, therefore, a good defence if the defendant can show that he/she neither intended to injure the plaintiff nor could he/she avoid the injury by taking reasonable care. In Stanley v. Powell, the defendant and the plaintiff went to a pheasant shooting. The defendant fired at a pheasant but the bullet after getting reflected by a tree hit the plaintiff and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was held not liable.
- Act of God – It is a kind of inevitable accident in which the natural forces play their role and cause the damage. For e.g., heavy rainfall, storms, etc. Essentials required for this defence are-
1. There must be working of natural forces. In Ramalinga Nadar v. Narayana Reddiar the plaintiff had booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond the control of the defendant. It was held that every event beyond the control of the defendant cannot be said to be the Act of God. Only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be an aid to the act of God.2. Occurrence must be extraordinary. In Nichols v. Marshland, the defendant created an artificial lake on his land. Once there was an extraordinary rainfall, heaviest in human memory. The embankments of the lake got destroyed and washed away all the 4 bridges belonging to the plaintiff. The court held that the defendant was not liable as the same was an Act of God.
4. Private defence – The law has given permission to protect one’s life and property and for that, it has allowed the use of reasonable force to protect oneself and one’s property. But, the use of force is justified only for the purpose of self-defence and there should be an imminent threat to a person’s life or property. In Bird v. Halbrook, the defendant, had kept a spring gun in his garden, since flowers were often stolen from his garden. The plaintiff, a boy whose fowl had strayed away, jumped into the defendant’s garden to search for it. He had no knowledge about the gun there and got injured. The court held that the defendant was liable since he had exceeded the right of private defence to his property.
5.Mistake – Mistake, whether of fact or of law, is generally no defence to an action for tort. In Consolidated Company v. Curtis, an auctioneer auctioned some goods of his customer, believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer for the tort of conversion. The court held the auctioneer liable and mentioned that the mistake of fact is not a defence that can be pleaded here. To this rule, there is some exception when the defender may be able to avoid his/her liability by showing that he/she acted under an honest but mistaken belief.
6) Necessity – If an act is done to prevent greater harm, even though the act was done intentionally, is not actionable and serves as a good defence. In Cope v. Sharpe, the defendant entered the plaintiff’s premises to stop the spread of fire in the adjoining land where the defendant’s master had the shooting rights. Since the defendant’s act was to prevent greater harm so he was held not liable for trespass. If that interference is not reasonably necessary, the defender will be liable. In Carter v. Thomas, the defender, who entered the plaintiff’s premises in good faith to extinguish a fire at which the fireman had already been working, was held liable for trespass.
7) Statutory Authority – If an act is authorized by a statute or legislation, then it is not actionable even if it would constitute a tort otherwise. It is a complete defence and the injured party has no remedy except for claiming compensation as may have been provided by the statute. In Bhogilal v. Municipality of Ahmedabad, case, the defendant demolished a wall of the plaintiffs under their statutory powers. The roof of the plaintiff also collapsed in the process. The court held that no suit will lie against the defendant, as they have carried out their duty under statutory powers although the plaintiff has suffered injury.