Prepared by Asisst. Professor Rekha Khandelwal
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IPC Chapter – IV General Exceptions
Absence of criminal intent ( Sections – 81 – 86, 92 – 94)
Necessity ( Sec. 81)
Sec. – 81. “Act likely to cause harm, but done without criminal intent, and to prevent other harm.”
Whenever any act is done with knowledge of harm but without any criminal intention, in good faith to prevent or avoid other bigger harm to person or property, then the act shall not be an offence.
If above conditions are fulfilled in doing any act then the act is exempted under the code from criminal liability where the accused is not charged of the crime committed. As the act shows absence of mens rea i.e. guilty mind. While Actus rea and mens rea are two essential elements to impose criminal liability on accused.
According to Principle of criminal liability in IPC which is basis on latin maxim “Actus non faciet reum nisi mens sit rea”
It is a question of fact whether act should be done or not.
Sec. 81 gives exemption to the accused person who committed evil act to prevent a bigger evil. It is based on the principle laid down by the given latin maxim.
Quod necessitas non habet leegem (necessity knows no law)
Necessitas vincit legem (necessity overcomes the law)
1. P a captain of a steam vessel suddenly and without any fault or negligence on his part finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat Q with twenty or thirty passengers on board unless he changes the course of his vessel, and that, by changing his course he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear.
Here, if P alters his course without any intention to run down the boat R and in good faith for the purpose of avoiding the danger to the passengers in the boat X. he is not guilty of an offence though he may run down the boat R by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down R.
(b) P, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does the act with the intention of saving human life or property in good faith. If it be found that the harm to be prevented was of such a nature and so imminent as to excuse P’s act. P is not guilty of the offence.
Dudley and Stephens, (1884) 14 QBD 273
A man, who kills another person for the purpose of eating his flesh to escape death from hungry, is guilty of murder. Although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. It was held that upon these facts there was no proof of such a necessity. So they were guilty of murder.
The divisional court adjudged the accused persons of murder and sentenced them to death. The three principles orginated from this judgment are:
- Self-preservation is not an absolute necessity
- To take another’s life for preserving himself is not a right given to anyone
- Homicide cannot be justified by any necessity
In this case, the accused persons Dudley and Stephen were on a yacht. Which was cast away due to storm. They killed the cabin boy who seemed to them to have become fragile enough to die first. Then they ate his flesh and drank his blood for 4 days until they were finally rescued. The jury rendered a special verdict: “If the men had not fed upon the body of the boy, they would probably would or have survived to be so picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before that at the time of the act there was no sail in sight, or any reasonable prospect of relief; that assuming any necessity to kill anyone, there was no greater necessity for killing the boy than any of the other three men; but whether upon the whole matter,
Ramchandra Gurjar, (1937) 39 Bom
Where an offence depends upon proof of intention the court must have proof of facts sufficient to justify in coming to the conclusion that the intention existed. There is no doubt that usually one has to determine the purpose of the conduct, and one thing that should be taken into consideration is the potential impact of the conduct. But that is never conclusive.
Gurcharan Singh v. State of Punjab, AIR 1956 SC 460
Where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance.
Southwick London Borough Council v. Williams, (1971) Ch 734
As in self-defense so in the prevention of harm the accused is faced with two choices both resulting in some harm and of sheer necessity to avoid a greater harm he has to commit an act which would otherwise be an offence. The trial is really like this: there must be a situation in which the accused had a fear of the grave and in order not to do more harm to him, the innocent person has no choice but to do less harm. Here the choice is between the two evils and the accused rightly chooses the lesser one.
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