OF ABETMENT

Chapter v of Penal Code 1860 deals with the law of accessories as it is known as English Law.

Accessories are the persons concerned in crime otherwise than as principals.

They are of 3 kinds:

a. Accessory before the fact,

b. Accessory at the fact;

c. Accessory after the fact.

This chapter deals only with such offenders who are accessories before or at the fact.

This chapter contains 15 sections {107-120}. The main principles may be summarized as

follows:

Section 107

(Abetment of a thing)

According to this section, A person abets the doing of a thing who –

Firstly, Instigates any person to do that thing; or

Secondly, engages with one or more other person or persons in any conspiracy for the doing of

that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order

to that doing of that thing.

Thirdly, intentionally aids, by any act or illegal omission, the doing of that thing.

Definition of abetment: The definition of abetment in this chapter is general in nature. It

does not make the abetment of an ‘offence’ but of a ‘thing’, which may or may not be an

offence. It depends upon the intention of the person who abets and upon the act which is done

by the person who has abetted.

1. Abetment by Instigation

Definition of Instigate – A person, who, by wilful misrepresentation, or by wilful concealment

of a material fact which he is bound to disclose, voluntarily causes, or procures, or attempts to

cause or procure, a thing to be done, is said to be done, is said to instigate the doing of that

thing.

CASES- Direct instigation- where of several persons constituting an unlawful assembly, some

only were armed with sticks, and A, one of them, was not picked up a stick and used it B(master

of A, who gave a general order to beat, was held guilty of abetting the assault made by them.

[ Rasookoollah(1869) 12 WR(cr)51]

Instigation by letter-Where one person instigates another to the commission of an offence by

means of a letter sent through the post, the offence of abetment by instigation is completed as

soon as the contents of such letter become known to the addressee. It the letter never reaches

him the act is only an attempt to abet.

[Ransford(1874) 13 Cox 9]

2. Abetment by Conspiracy – conspiracy consists in the agreement of two or more persons

to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in

intention only, it is indictable.

“Where parties concert together, and have a common object, the act of one of the parties,

done in furtherance of the common object and in pursuance of the concerted plan, is the act of

all” [ Ameer Khan (1871)17 WR(cr)15]

3. Abetment by Aid – A person abets by aiding, when by act done either prior to, or at that

time of the commission of an act, he intends to facilitate, and does in fact facilitate, the

commission thereof. The abettor must be shown to have intentionally aided the commission of

the crime.

It is not necessary that the abettor should be present at the place of crime. It is also not

necessary to show that the secondary party to a conspiracy to murder intended the victim to be

killed provided that it is proved he foresaw the event as a real or substantial risk.

[ R v Rook, (1993) 1 WLR 1005 (CA) ]

Illustration

A, a public officer is authorized by a warrant from a Court of justice to apprehend Z. B knowing

that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally

causes A to apprehended C. Here B abets by instigation the apprehension of C.

SCOPE –

This chapter covers the different ways in which such assistance or abetment may be

provided such as to make them liable in criminal law for punishment.

A majority of crimes are committed by two or more persons.

These persons are said to facilitate the commission of the offence.

INSTIGATION IN DOWRY DEATH CASES.

Instigation as a form of abetment has generally been one of the essential considerations in cases

involving the death of young brides or women within seven years after marriage, as a

consequence of dowry harassment.

Protima Dutta v State of West Bengal (1977) CrLj 97 cal

Here a charge under s 306 read with s 34, PC, was laid against the mother-in-law of the deceased

and her husband of having abetted the commission of suicide by instigating and inciting her to

commit suicide.

The evidence revealed many circumstances which showed that the mother-in-law suggested to

the deceased by conduct, language and direct or indirect expressions to commit suicide.

Although it did not amount to express solicitation, her cruel conduct towards the deceased over

the months made the deceased suffer mentally. Therefore, the series of conduct amounting to

actively suggesting and stimulating the deceased to commit suicide, it was held, clearly

amounted to instigation.

Tej Singh v State of Rajasthan AIR 1958 Raj 169 pp. 171-172

While generally passive or unresponsive approval may not necessarily be considered to be

instigation, there are specific instances when approval has been held to be instigation, as for

example, in instances of committing Sati, when a widow immolates herself in the funeral pyre of

her husband.

When members of the funeral procession of her husband applauded her resolve by shouting Satti

Mata Ke Jay, they were held to have instigated her to commit Sati, as their approval of the

woman's act by participation in the procession gave her encouragement to commit suicide.

Brijlal v. Prem Chand, AIR 1989 SC 1661: (1989) Supp 2 SCC 680.

In this case, the husband persistently demanded more money from his wife, quarrelling with her

everyday. On the fateful day when she happened to say that death would have been better than all

this, she heard only this in reply that her husband would feel relieved if she ended her life.

Immediately thereafter she set herself on fire. The husband was held guilty of instigating her to

commit suicide.

Gurbuchan Singh v Satpal Singh (1990) ISSC 445: AIR 1990 SC 209: 1990 CrLJ 562

In this case a married girl committed suicide by burning herself in her in-law's house, her in-laws

were held guilty of abetment because they were persistently torturing her for inadequate dowry

and had gone to the extent of accusing her of illegitimate pregnancy. All these tortures and

taunts", RAY. J said, "caused depression in be mind and drove her to take the extreme step of

putting an end to her life by sprinkling kerosene oil on her person and setting it afire."

Kishangiri Mangalgiri Goswami V State of Gujarat

Here The accused married Kantaben in 1989. Soon after two years of his marriage, the accused

started inflicting mental and physical torture on her and she was

taunted by the accused for not bringing sufficient dowry in the marriage. The demand was

persistent. Even threats were administered to the deceased and her family members. Thus, the

accused inflicted mental and physical torture on the victim which prompted her to commit

suicide by burning herself on 23-03-1999 after pouring kerosene on her body. Thus, the court

found that the appellant has committed the offence punishable under Section 498A and 306 of

IPC

Section 108

(Abettor)

According to this section, A person abets an offence, who abets either which would be

an offence, if committed by a person capable by law of committing an offence with the

same intention or knowledge as that of the abettor.

Illustration –

i. A instigates B to murder c. b refuses to do so. A is guilty of abetting B to commit

murder.

ii. A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from

the wound. A is guilty of instigating B to commit murder.

“Abettor” under this section, means the person who abets the commission of an

offence,

Or, the commission of an act which would be an offence if committed by a person not

suffering from any physical or mental incapacity.

Abetment is substantive offence- the offence of abetment is a substantive

one and the conviction of an abettor is, therefore, in no way dependent on the

conviction of the principal.

[Maruti Dada (1875)1 Bom 15; Sahib Ditta (1885) PR no. 20 of 1885.

Principal cannot be abettor- A person who has been convicted of an offence as

principal cannot also be punished for abetting it.

[ Jeetoo Chowdhury, (1865) 4 WR(CR)23]

Section 108A

(Abetment in Bangladesh, of offences outside it)

According to this section, a person abets an offence within the meaning of this code who, in

Bangladesh abets the commission of any act without and beyond Bangladesh which would

constitute an offence committed in Bangladesh. Abetment in Bangladesh of offences outside it.

Illustration

A, in Bangladesh, instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of

abetting murder.

Section Analysis

This section makes an abetment in Bangladesh by a citizen of Bangladesh of an act committed

in a foreign territory an offence punishable under the Penal Code if it would constitute an

offence if committed in Bangladesh.

Section 109

Punishment of abetment if the act is committed in consequence and where no express

provision is made for its punishmentWhoever abets any offence shall, if the act abetted is committed in consequence of the abetment,

and no express provision is made by this Code for the punishment of such abetment, be punished

with the punishment for the offence. Punishment of abetment if the act abetted is committed in

consequence and where no express provision is made for its punishment.

Explanation: An act or offence is said to be Committed in consequence of abetment when it is

committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid

which constitutes the abetment.

Illustration: (a) A offers a bribe to B, a public servant, as a reward for showing A some favour

in the exercise of B’s official functions. B accepts the bribe. A has abetted the offence defined in

section 161

(b) A instigates B to give false evidence. B in consequence of the instigation commits that

offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

( c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procedures the poison and

delivers it to B in order that he may administer it to Z. B, in pursuance of conspiracy, administers

the poison to Z in A’s absence and thereby causes Z’s death. Here, B is guilty for murder. A is

guilty of abetting that offence by conspiracy and is liable to the punishment of murder.

Analysis of Section 109

Section 109 deals with the matter where an offence has been the consequence of abetment and

there

is no specific provision is made for the punishment of such offence.

From section 107 we know that abetment includes-

● Instigation

● Engagement of one or more persons in conspiracy

● Intentional aid by any act or illegal omissions.

Now, if any offence takes place in a result of these above-mentioned three things, and if there

is no express provision for its punishment, then the person abetting be punished with

the punishment provided for that offence.

Here, another notable fact is that- section 109 has no application where the offence is never

committed. Again, questions may arise what actually is meant by the word ‘offence’ in this

section. In this section, ‘offence’ means any act which is said to be an offence either under

the Penal Code,1860 or under any special law.

Case Study Under Section 109

Where the abetment committed at the time, when offence has been committed, the

section applicable is section 109 and not section 114 (AIR 1948 All 168)

There is no difference between “principle in the first degree” and “principle in the second

degree”. Under section 111, the abettor is liable for a different act if that was a probable

consequence of the abetment. This is applicable to the accused guarantor.

(Islami Bank Bangladesh V Md Habib & Others (criminal), 55 DLR, AD 19)

Section 110

Punishment of abetment if person abetted does act with different intention from that of

abettor- whoever abets the commission of an offence shall, if the person abetted does the act

with a different intention or Knowledge from that of the abettor, be punished with the

punishment provided for the offence which would have been committed if the act had been done

with the intention or knowledge of the abettor and with no other.

Analysis of Section 110

Section 110 deals with the punishment of an abettor, who does the act of abetting with a different

intention than that of the actual offence.

This section describes that if the abettor abets the commission of an offence with the knowledge

of something else, but the final result of the offence turns out not as per his intention, then he

would be punished in a way if the very act had been done with the knowledge of him.

Case Study Under Section 110

● Where the abettor intends that simple hurt to be caused to A, but the persons abetting

attacking A in such a way that their offence amount to culpable homicide. The abettor

will nevertheless be liable only for simple hurt under section 323/110 and not for

culpable homicide under section 304/110.

(AIR 1935 Oudh 473)

● Where the common intention of the members was to cause only grievous hurt, but one of

them committed murder, it was held that the members other than the member who

committed the murder shall be punished only under section 326 read with section 149,

and not under section 302 read with section 149.

(AIR 1936 Pat 481)

Section 111

Liability of abettor when one act abetted and different act done

Liability of abettor when one act abetted and different act done 111. When an act is abetted, and

a

different act is done, the abettor is liable for the act done, in the same manner, and to the same

extent as if he had directly abetted it:

Provided the act done was a probable consequence of the abetment, and was committed under

the influence of the instigation, or with the aid or in pursuance of the conspiracy which

constituted the abetment.

Illustrations

(a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose.

The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which

is by the side of that of Z. Here if the child was acting under the influence of A’s instigation, and

the act done was under the circumstances a probable consequence of the abetment, A is liable in

the same manner and to the same extent as if he had instigated the child to put the poison into the

food of Y.

(b) A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft

of property there. A, though guilty of abetting the burning of the house, is not guilty of abetting

the theft; for the theft was a distinct act, and not a probable consequence of the burning.

(c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery

and provides them with arms for that purpose. B and C break into the house, and being resisted

by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the

abetment, A is liable to the punishment provided for murder.

Section Analysis

This section deals with the liability of an abettor where the person abetted does a different act

than the act abetted by the abettor. This section incorporates the principle that every person is

presumed to intend the natural consequences of his act.

Naturally, if the act done was not a probable consequence of the abetment, the abettor could to

be held guilty of its abetment. A probable consequence would mean that the act committed could

be held to be likely to be committed as a result of the abetment or it could reasonably be

expected to follow as a result of the abetment. In other words, an act which could reasonably be

expected to take place from the abetment would be held to be a probable consequence of the act

abetted. The three illustrations provided under this section amply clarify and illustrate this point.

Illustrative Cases

Definition of Abetment

The term abetment has been defined in section 107 of the code.It includes not merely instigation,

which is the normal form of abetment but also conspiracy and aiding and these three forms of

abetment are dealt with in the proviso to this section.

⸰ AIR 1940 Bom 126

Where the act is applicable

This section doesn’t apply where the act abetted is not a criminal act

⸰ AIR 1931 Pat 52(54)

The Act was a probable consequence

1. To make the accused liable in this section the prosecution must not show not only that the

assault on the complainant was a probable consequence of the conspiracy to assault the

complainant but also that it was done in pursuance of that conspiracy.

⸰ AIR 1925 PC 305

2. Where an act is abetted and the abetment takes the form of instigation of an act and a different

act is done, that different act must be a probable consequence and committed under the influence

of the instigation and where the abetment takes the from of aiding or conspiracy the different act

must be a probable consequence and also must be done with the aid or in pursuance of the

conspiracy.

⸰ (1912)13 CriLI 305

Abetment of an act only refers to a criminal act:

This section does no more than declare the law according to the common law of England under

which the abetment of an act refers to the abetment of a criminal act.The moment the persons

overstep the line between that which is lawful and that which is an unlawful action becomes a

criminal offence

⸰ AIR 1931 Pat 52

SECTION 112

Abettor when liable to cumulative punishment for act abetted and for the act done

If the act for which the abettor is liable under the last preceding section is committed in addition

to the act abetted and constitutes a distinct offence, the abettor is liable to punishment for each

of the offences.

Illustration

A instigates B to resist by force a distress made by a public servant. B, in consequence, resists

that distress. In offering resistance, B voluntarily causes grievous hurt to the officer executing

the distress. As B has committed both the offence of resisting the distress, and the offence of

voluntarily causing grievous hurt, B is liable to punishment for both these offences; and, if A

knew that B was likely voluntarily to cause grievous hurt in resisting the distress, A will also be

liable to punishment for each of the offences.

Illustrative Cases

Liability of punishment:

This section presupposes that the person abetted commits two acts namely

1. The act abetted

2. Also, a different one constitutes a distinct offence.

In such cases, if the abettor can be held liable for the latter act under section 111 then he is liable

to punishment for each of the offences under this section.

⸰ AIR 1957 Andh Pro 231

Relation with other section:

1, This section should be read in conjunction with section 111

2. where the act of the person abetted is not the probable consequence of the act abetted or the

abettor has not the knowledge that his act was likely to cause the effect caused he will not be

liable for the effect caused by the act of the person, abetted

⸰ 1892 AHWN 233 (DB)

Section 113

Section 113 deals with the liability of the abettor for effect caused by the act abetted different

from that intended by the abettor.

According to this section, when an act is abetted with the intention on the part of the abettor

causing a particular effect, and an act for which the abettor is liable in consequence of the

abetment causes a different effect from that intended by the abettor, the abettor is liable for the

effect caused, in the same manner, and to the same extent as if he had abetted the act with the

same intention of causing that effect, provided he knew that the act abetted was likely to cause

that effect.

This section denotes that if the abettor intended to cause a specific consequence, he should only

be liable for that. He should not be responsible for any further consequences that took place after

the offence was committed. However, if it is foreseen that the person abetted is likely to cause

more harm to the victim beyond the intention of the abettor. Still, if the abettor had abetted him

in doing the act, the abettor would be liable for the extended consequence of the committed

offence.

For example, A instigates B to cause grievous hurt to Z. B, in consequence of the instigation

causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted

was likely to cause death, A is liable to be punished with the punishment provided for murder.

Scope:

(1) This section should be read in conjunction with section 111.

(2) Where the act of the person abetted is not the probable consequence of the act abetted or

the abettor has not the knowledge that his act was likely to cause the effect caused, he

will not be liable for the impact caused by the act of the person, abetted.

(1892 AHWN 233 (DB))

Section 114

Section 114 deals with the situation in which the abettor is present when the offence is

committed.

According to this section, whenever any person who, if absent, would be liable to be punished

as an abettor, is present when the act of offence for which he would be punishable in

consequence of the abetment is committed, he shall be deemed to have committed such act or

offence.

This section is only applicable where the act at which the abettor is present would itself amount

to an offence. The meaning of this section is that if the nature of the act done continues abetment,

then, if present, the abettor is to be deemed to have committed the offence, though, in point of

fact, another actually committed it.

Scope:

(1) This section applies to cases where a person abets the commission of the offence sometime

before, at a different place and remains present when the offence is committed.

● Nanboo Kedar, AIR 1962 MP 91

(2) Section 114 does not apply to a case where the abetment is made at the time when the offence

takes place, and the abettor helps in its commission.

(3) Active abetment at the time of committing the offence falls under section 109. While section

109 is a section generally dealing with abetment, section 114 applies to those cases only in which

not only the abettor present at the commission of the offence but abetment has been committees

before and independently of his presence. (Kulwant Sing v State of Bihar, (2007) 15 SCC 670).

(4) The real test to see whether or not section 111 applies lies in the words of the section ‘who is

absent would liable to be punished as an abettor. ( AIR 1955 Trav-Co 266)

(5) In the absence of proof of any one of the two ingredients, namely,-

● abetment prior to the commission of the offence; and

● the abettor's presence at such commission,

This section will not be applicable. (AIR 1974 SC 45)

Act abetted different from the act committed- Abettor present.

Where A abets B to do the act which is a particular offence, and B does another act which

amounts to a different offence and which is not a probable consequence of the abetment, A

would not, if absent at the commission of the offence by B, be liable for the crime committed by

B. His presence at B's commission of an offence would not make any difference and would not

render him liable under this section for the offence committed by B.

● (1912) 13 CriLI 715

Section 115

Abetment of an offence punishable with death or imprisonment for life; If offence not

committedWhoever abets the commission of an offence punishable with death or imprisonment for life,

shall, if that offence be not committed in consequence of the abetment, and no express provision

is made by this Code for the punishment of such abetment, be punished with imprisonment of

either description for a term which may extend to seven years, and shall also be liable to fine;

If act causing harm to be done in consequence:

And if any act for which the abettor is liable in consequence of the abetment, and which causes

hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a

term which may extend to fourteen years, and shall also be liable to fine.

Illustration:

A instigates B to murder Z. The offence is not committed, if B had murdered Z, he would have

been subject to the punishment of death or imprisonment for life. Therefore, A is liable to

imprisonment up to 7 years and also a fine and if hurt be caused to Z in consequence of the

abetment he will be liable to imprisonment up to 14 years and also a fine.

Illustrative cases:

In determining factors of offence, the essential ingredients under Section 115 are as follows:

(1) The accused must have abetted the commission of the offence;

(2) The offence abetted is not committed;

(3) The offence abetted was not committed or no hurt was caused to any person in consequence

of such abetment.

Here, the second and third class of cases falls under the first and second paragraph of this

section. The first one falls under sections 109 and 110, not under this section.

Section 116

Abetment of an offence punishable with imprisonment; if the offence be not committed:

This section obliges the abetment of an offence culpable with confinement. There is no relating

segment in the Code relating to abetment of an offence culpable with fine as it were. The section

is supplementary to section 115.

According to the first part of this section, whenever an abettor abets such an offence for which

the punishment provided is imprisonment if the offence abetted is not committed in consequence

of the abetment and there is no express provision in the Indian Penal Code to punish such

abetment, the abettor shall be punished with imprisonment of any description for a term which

may extend to one-fourth part of the longest term provided for that offence, or with such fine as

is provided for that offence, or with both.

The second part of the section says that whenever an abettor abets an offence punishable with

imprisonment and if the abettor himself or the person abetted is a public servant whose duty is to

prevent the commission of such an offence, the abettor shall be punished with imprisonment of

any description provided for that offence for a term which may extend to one-half of the longest

term provided for the offence, or with such fine as is provided for the offence, or with both.

It is clear from the above that the law views an act to be more serious where either the abettor or

the person abetted is a public servant who is under a duty to prevent the commission of an

offence and, therefore, higher punishment has been provided in such cases.

Illustration:

a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise

of B's official functions. B refuses to accept the bribe. A is punishable under this section.

b)A, a police officer, whose duty it is to prevent robbery, abets the commission of the robbery.

Here, though the robbery be not committed, A is liable to one-half of the longest term of

imprisonment provided for that offence and also to a fine.

c) B abets the commission of a robbery by A, a police officer, whose duty it is to prevent that

offence. Here, though the robbery be not committed, B is liable to one-half of the longest term of

imprisonment provided for that offence of robbery and also to a fine.

Illustrative cases:

In the case of Parvati Charan Chatterji [(1895) 22IA 193: 17 All 498 PC], a Vakil of the HCD

signed and sent a letter to another Vakil of that court who practised in District Courts subordinate

thereto. The purport of this letter, which was one of several printed forms prepared for

circulation to Vakils practising in districts, was to the effect that the Vakil, to whom it was

addressed, "could easily send his clients" cases' both civil and criminal," to the writer, who

would conduct them in that court. And 'as a remuneration' the fees paid by the clients' would be

shared between the writer and the Vakil who had sent the cases. It was held that that was

incitement within the meaning of this section.

Section 117

Abetting commission of the offence by the public, or by more than ten person

Section 117 of the Penal Code states that, " Whoever abets the commission of an

offence by the public generally or by any number or class of persons exceeding ten,

shall be punished with imprisonment of either description for a term which may extend

to three years, or with fine, or with both."

Illustrations

A affixes in a public place a placard instigating a sect consisting of more than ten

members to meet at a certain time and place, for the purpose of attacking the members

of an adverse sect, while engaged in a procession. A has committed the offence defined

in this section.

Section Exploration

Offence: Abetting the commission of an offence by the public, or by more than ten

persons.

Punishment: Imprisonment for 3 years or fine or both.

Cognizable/ Non-cognizable: Same as offence.

Bailable/ Non-bailable: Same as the offence.

Trial Court: Court by which offence abetted is triable.

Section 118

Concealing design to commit an offence punishable with death or imprisonment for life

Section 118 provides that, " Whoever intends to facilitate or knows it to be likely that

he will thereby facilitate the commission of an offence punishable with death or

imprisonment for life, voluntarily conceals, by any act or illegal omission, the existence

of a design to commit such offence or makes any representation which he knows to be

false respecting the such design,

if offence be committed:

shall, if that offence be committed, be punished with imprisonment of either description

for a term which may extend to seven years, or,

if offence be not committed:

if the offence is not committed, with imprisonment of either description for a term which

may extend to three years;

and in either case shall also be liable to fine.

Illustrations

A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate

that a dacoity is about to be committed at C, a place in an opposite direction, and

thereby misleads the Magistrate with intent to facilitate the commission of the offence.

The dacoity is committed at B in pursuance of the design. A is punishable under this

section.

Section Exploration

if the offence committed

Offence: Concealing a design to commit an offence punishable with death or

imprisonment for life, if the offence be committed.

Punishment: 7 years of imprisonment and fine.

Cognizable/Non-cognizable: Same as offence.

Bailable/Non-bailable: Non-bailable.

Trial Court: Court by which offence abetted is triable.

if the offence be not committed

Offence: Concealing a design to commit an offence punishable with death or

imprisonment for life, if the offence be not committed.

Punishment: 3 years of imprisonment and fine.

Cognizable/Non-cognizable: Same as offence.

Bailable/Non-bailable: Bailable.

Trial Court: Court by which offence abetted is triable.

Section 119

Public servant concealing design to commit an offence which it is his duty to

PreventWhoever, being a public servant intending to facilitate or knowing it to be likely that he will

thereby facilitate the commission of an offence which it is his duty as such public servant to

prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit

such offence, or makes any representation which he knows to be false respecting such design,

if offence be committed;

shall, if the offence be committed, be punished with imprisonment of any description provided

for the offence, for a term which may extend to one-half of the longest term of such

imprisonment, or with such fine as is provided for that offence, or with both;

if offence be punishable with death, etc;

or, if the offence be punishable with death or imprisonment for life, with imprisonment of

either description for a term which may extend to ten years;

if offence be not committed

or, if the offence be not committed, shall be punished with imprisonment of any description

provided for the offence for a term which may extend to one-fourth part of the longest term of

such imprisonment or with such fine as is provided for the offence, or with both.

Illustration

A, an officer of police, being legally bound to give information of all designs to commit robbery

which may come to his knowledge and knowing that B designs to commit robbery, omits to

give such information, with intent to facilitate the commission of that offence. Here A has by an

illegal omission concealed the existence of B’s design and is liable to punishment according to

the provision of this section.

Scope of this section

The facts necessary to establish an offence under this section:

1. That there is the existence of the design to commit an offence.

2. That the accused was a public servant.

3. That it was the duty of the accused, a such public servant, to prevent the

commission of that offence.

4. That the accused concealed the existence of such design

(a) By his act or illegal omission of that offence; or

(b) By his knowingly making false representation.

5. That the accused did so voluntarily.

6. That the accused thereby intended to facilitate or knew that he would thereby

facilitate the commission of such offence.

7. That the offence concealed has been committed (if the case falls under the first

clause.)

Section:120

Concealing design to commit an offence punishable with imprisonment

Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the

commission of an offence punishable with imprisonment, voluntarily conceals, by any act or

illegal omission, the existence of a design to commit such offence, or makes any representation

which he knows to be false respecting such design

if the offence is committed; if the offence be not committed

shall, if the offence be committed, be punished with imprisonment of the description provided

for the offence, for a term which may extend to one-fourth, and, if the offence be not

committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is

provided for the offence, or with both.

Scope of this section:

The facts necessary to establish an offence under this section:

1. That there was a design to commit an offence punishable with imprisonment

2. That the accused is aware of the design.

3. That the accused voluntarily concealed the existence of the design by a positive act on

his part or an illegal omission.

4. That the accused knew that he was likely thereby to facilitate to the commission of the

offence concealed.

This section deals with abetment by concealment of an offence punishable with imprisonment

depending upon the fact whether the offence abetted is committed or not committed.

Group D

Faiqua Tahjiba - 1812116210

Jannatun Nayem Shuvra - 1812516145

Salma Sabiha - 1712116132

Md. Jubayer Rahman Akash - 1810816181

Adiba Anjum - 1812116196

Nazmul Abedin Abir - 1810116104

Mashrur Imtiaz - 1810916147

Sajedul Karim - 1810416166

 

General Exceptions

Chapter IV of the Penal Code 1860 deals with the subject of exceptions to criminal liability and enumerates the facts or circumstances which negative or reduce criminality. Throughout the Code every definition of an offence, every penal provision and every illustration of such definition of the penal provision shall be understood subject to the exceptions contained in this Chapter, though these exceptions are not repeated in such definition, penal provision or illustration (s. 6). Under section 105 of the Evidence Act, the burden of proving the existence of circumstances which bring the case of an accused within any of the general or special exceptions in the Code is upon the accused and the Court shall presume the absence of such circumstances.

This chapter contains 31 sections (sections 76-106). The main principles may, however, be summarised thus:

(1)             Absence of mens rea-sections 81-86 and 92-94

(2)             Accident-section 80

(3)             Mistake-sections 76 and 79,

(4)             Acts done by consent-sections 87-91,

(5)             Privileged acts-sections 77-78;

(6)             Trifling acts-section 95, and

(7)             Right of private defence-sections 96-106

 

Section 76

Act done by a person bound, or by mistake of fact believing himself bound, by law

Section 76 provides that “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.”

Illustrations

(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.

(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y. And. After due enquiry, believing 2 to be Y. Arrests Z. A has committed no offence.

 

Section Analysis

Section 76 excuses a person who has done what by law is an offence under a misconception of facts leading him to believe in good faith that he was commanded by law to do it. This section is of special importance in regard to the Military and Police acting under their superiors' commands and in respect of private persons assisting the Police.

This section and section 79 are based upon the well-known Latin Maxim, that ignorance of law is no excuse. Everyman is presumed to knew the law. However, ignorance of fact is a valid defence in a law. The essentials regarding mistake falling under sections 76 to 79 are that-

(a)   It must be bonafide

(b)   The mistake must be one of fact.

Where an offence is committed by reason of a mistake of fact in good faith, the offender is entitled to the benefit of sections 76 to 79 in holding a person guilty of an offence, the existence of mens rea in himself is essential

Illustrative cases

·       Act done under the order of superior

(1)   Whereas a result of the mob violence the Deputy Commissioner ordered police force to open fire and, in the firing, resorted, to in pursuance of that order some persons in the mob were killed, it was held, that the member of the police force who opened fire could seek protection of the order of the superior (order being justified) and plead that they acted in obedience to tut order and therefore they could not be held guilty of the offence of murder with which they were charged.

-AIR 1981 SC 1917.

 

·       Arrest under warrant of Court.

(1)   A Police officer arresting a wrong person under a warrant under bona fide mistake of fact is not liable and is protected by this Section.

-AIR 1924 Bom 333.

 

·       Mistake of law;

(1)   It is a general principle that a mistake or ignorance of law, however-bona fide, is no defence to a charge of a criminal offence.

-AIR 1928 Nag 188

 

·       Mistake of fact.

(1)   An error on a mixed question of law and fact is treated as a mistake of fact.

­-AIR 1951 Orissa 284

 

·       Mixed question of question of law and fact

 Mixed question of question of law and fact is treated as a mistake of fact.

-AIR 1951 Orissa 284

 

·       Good faith

(1)   Where the accused was not, as a matter of fact, bound by law to do the act Impugned as an offence, he may still rely on this section where after taking due care and attention, he believed in a certain state of facts which would, if true, have made his act an obligatory one under the law. Thus, due care and attention on his part are essential before he can plead good faith under, this section.

­-AIR 1943 Pat 64.

Section 77

Act of Judge when acting judicially

Section 77 provides that "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." 

Under this section a Judge is exempted not only in those cases in which he proceeds irregularly in the exercise of a power which the law gives to him, but also in cases where he in good faith, exceeds his jurisdiction and has no lawful powers. It protects Judges from criminal process just as the Judicial Officers Protection Act, 1850, saves them from Civil suits.

Illustrative cases-

·       Analogous law

(1)   The protection afforded by the Judicial Officers’ Protection Act is not absolute but qualified.

-AIR 1969 Pat 194.

(2)   The protection afforded to judicial officer’s rests on public policy, but it does not follow that a malicious Judge can exercise his malice with impunity. His conduct can be investigated elsewhere, and due punishment awarded.

-(1905)7 Bam LR 951 (DB)

 

·       Illegal refusal of bail-Lability of Magistrate for wrongful confinement

(1)   Where a Magistrate illegally refuses bail to a person from an improper motive, he will be liable for wrongful confinement as the improper motive proves the absence of good faith on the faith of the Magistrate.

-        4 QB 468

 

·       Unwarrantable delay in disposal of criminal cases

(1)   An unwarrantable delay by a Magistrate in the disposal of a criminal case and the consequent detention of an under-trial prisoner illegally beyond the period allowed by law will make the Magistrate liable to a suit for damages and he will not be entitled to the protection of the Judicial Officers’ Protection Act 18 of 1550)

-(1869) 11 Suth WR 19 (Cri)

 

Section 78

Act done pursuant to the judgment or order of Court

 Section 78 provides that “nothing which is done in pursuance of or which is warranted by the Judgment or order of, a Court of Justice, if done whilst such judgment or order remains 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.”

(1)   This section is a corollary to section 77. It affords protection to the officer acting under the authority of judgment or order of a Court.

(2)   This section is supplementary to S. 77. S. 77 deals with Immunity of Judges from criminal liability for acts done by them while acting judicially. This section deals with the immunity of ministerial officers or others executing the process of Court Issued in pursuance of the judgments and orders of Court.

-(1837-1841) 2 MIA 293.

 

 

 

Section 79

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

Section 79 provides that “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, believes himself to be justified by law, in doing it.”

Illustrations

 A sees Z commit what appears to A to be a 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.

 

Scope and applicability

·       This section is analogous to section 76. While section 76 deals with cases in which a person acts in the belief that he is bound by law to act in a particular manner, section 79 deals with the cases in which a person acts in the belief that he is justified by law to act. Mistake of law is no justification under this section.

·       This section can be distinguished from section 132 CrPC Protection given by this section is a protection against conviction, while protection under section. 132 CrPC is a protection against trial.

 

·       This section excuses a person who has done what by law is an offence, under a misconception of facts, leading him to believe in good faith that he was bound or justified by law to do it. But in order to entitle a person to claim the benefit of this section it is necessary to show the existence of a state of facts which justify the belief in good faith that the person was bound or justified by law to do as he did.

Illustrative cases-

Examples of acts held justified by law.

(1)   A person is entitled to cut off those portions of the tree growing on his neighbour’s land which overhang his land. Hence, his act in cutting off such portions of the tree does not amount to an offence under S. 427 (Mischief).

– 1978 KerLT 441

(2)   When the Police officer acts within the limits of his power, it is not necessary to consider whether he has acted corruptly or maliciously

 -(1886) ILR 10 Bom 506

·       Distinction between section 76 and section 79.-

Under section 76 a person believes himself to be bound by law to do a particular act, whereas under section 79, he similarly believes himself to be justified by law to do it. That is to say, under section 76 a person believes that he is under a legal obligation to do the act which is the subject of the charge: while under section 79 he believes that he has legal justification in doing It. The distinction thus lies between a real or supposed legal obligation and a real or supposed legal justification in doing the particular act. Under both the sections there must be a bona fide intention to advance the law, manifested by the circumstances attending the act which is the subject of the charge and the party accused cannot allege generally that he had a good motive, but must allege specifically that he believed in good faith that he was bound by law to do as he did. Or that being empowered by law to act in the matter, he had acted to the best of his judgment exerted in good faith.

-First Report, s. 114, p.219

 

Section 80

Accident in doing a lawful act –

 

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

 

A is at work with a hatched; the head flies off and kills a man who is standing by. here, if there was no want of proper caution on the part of A, his act is excusable and not an offence.

 

Section 81

Act likely to cause harm, but done without criminal intent and to prevent other harm-

 

Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm if it is done without any criminal intention, and in good faith for the purpose of preventing or avoiding other harm to a person or property.

 

It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

Illustrations -

1. A ,the captain of a steam vessel, suddenly and without fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down the boat. B, with 20 or 30 passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur the risk of running down a boat C with only two passengers on board which h may possibly clear. Here, if A alters his course without any intention to run down boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect if it is found as a matter of fact that the danger which he intended to avoid was such as to excuse him in inquiring the risk of running down C.
2. A, is a great fire, that pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be count that the harm to be prevented was of such a nature and so imminant as to excuse A’s act, A is not guilty of the offence. 

 

Section 82

Act of a child under (nine) years of age-

 

Nothing is an offence that a child does under (nine) years of age.

 

The immunity of children under nine years of age from criminal liability is not confined to offenders under the Code only. Still, it extends to offences under any special or local law by virtue of section 40. A child under nine years of age cannot distinguish right from wrong and if he is prosecuted the very fact that he is below nine years is a sufficient answer to prosecution.

 

 

Section 83

Act of a child above (nine) and under twelve of immature understanding.

 

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

 This section may be read along with the children act 1974, where the definition of a child; has been given in section 2(f) of the act and according to the provisions of section 71, of the said act the words “conviction” and “sentence” shall not be used in relation to children.

 

If a child between nine to twelve years of age is to be convicted of an offence it must be shown or proved that he has sufficient maturity of understanding to judge the nature and consequences of the act done. 

Full criminal responsibility irrespective of maturity or understanding commences after a person attains the age of twelve years.

Illustrative cases-

1. An act of a child over 7 years of age and under 12 years should not be taken as an offence unless it can be shown that he has attained sufficient maturity of understanding the consequences of his conduct. 31 DLR 101.
2. Beyond the age of 12 years, there is no immunity from criminal liability, even if the offender is a person of undeveloped understanding and not capable of understanding the nature and consequence of his act. AIR 1959 All 698.
3. The proceeding against ⅘ years old child can not be allowed to continue and hence it should be quashed. Labu Mia vs. State (criminal) 53 DLR 218.

 

·       Theft by a child - Receipt of stolen property from a child-

Where theft is committed by a child of 6 years and another person is charged under section 411 of the Penal Code for having dishonestly received the property acquired by such theft, it has been doubted whether such person can be held guilty under section 411.  (1885) J Weir 470.

·       The arrest of child offender-

 

As Section 82 exempts a child under 9 years of age from any criminal liability, it is illegal for a Police Officer to arrest a boy under 9 years of age for the offences of theft and hence, an obstruction offered to such arrest is not an offence under Section 255-B of the Penal Code. AIR 1916 Mad 642.

 

Section-84

Act of person of unsound of mind

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.

Section Analysis

Section-84 lays down that a person is exonerated from criminal liability of doing an act by reason of an unsoundness of mind, if he, at the time of doing the act, is either incapable of knowing- the nature of the act, or that what he is doing is either wrong or contrary to law.

Penal Code 1860 gives no definition of unsoundness of mind. But there are four kind of persons who can be said to be non compos mentis ( not of sound mind):

a)     An idiot;

b)     One made non compos mentis by illness;

c)     A lunatic or a madman &

d)     One who is drunk.

Insanity

Section-84 treats the expression unsoundness of mind as equal to insanity. Insanity is in two forms, viz. legal insanity and medical insanity. A court is always concerned with legal insanity not with medical insanity. In the case 13 CrLJ 164, temporary insanity caused by one bout of drinking or ganja smoking which is of such an extremely temporary nature as to pass off a few hours after the consumption of the liquor or drug, is not even temporary unsoundness of mind, it is nothing more or less than intoxication and affords no excuse to the accused unless the intoxication be involuntary.

Drunkenness

“Drunkenness is no excuse. If a deaf mute has sufficient intelligence to understand the character of his criminal act, he is liable to be punished” is cited by the judgment of the case AIR 1947 All 301.

Depression & mental agitation

The mere fact the accused was in a state of acute mental agitation, depression or despondency or that he was for some time before the act extremely moody, taciturn and so on will not prove that he was suffering from such unsoundness of mind as to make him incapable of knowing what he was doing or he was doing or that his act was morally or legally wrong. Hence, in such cases the accused will not be entitled to protection under this section mere on the proof of facts of the above nature according to the case AIR 1967 Ker 92.

Burden of proof

The burden of proving fact lies upon the accused under section-105 of Evidence Act 1872. The accused have to prove the situation under which circumstances or state he did this act which is wrong or contrary to law. Through State v. Balashri Das Sutradhar 13 DLR 89, the court stated that the prosecution must prove the case without reasonable doubt.

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, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contarry to law: provided that the thing which intoxicated him was administered him without his knowledge or against his will.

Section-86

Offence requiring a particular intent or knowledge committed by one who is intoxicated

In cases where an act is not an offence unless done with a particular knowledge or intent, a person who does the act in 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 not been intoxicated, unless the thing which intoxicated him was administrated to him without his knowledge or against his will.

Sections Analysis

Sections- 85 & 86 depicts about the act done by a person who is in a state of intoxication either willingly or unwillingly.

Here intoxication results into mental instability of a person who committed an act either wrong or contrary to law.

In explaining the intoxication drunkenness viz., voluntary can be considered as an example. It can be taken into consideration at least two types of cases.

1)     In case Director of Public Prosecutions v. Beard,1920 AC 479 the court states  “Where specific intent is an essential element of an offence charged and the evidence shows that the state of intoxication of the accused is such that he is incapable of forming specific intent essential to constitute a crime.”

2)     Where habitual drunkenness has resulted in such a diseased condition of the mind that the accused is incapable of knowing the nature of the act or he is doing what is either wrong or contrary to law.

A case relating to an intoxication state follows Charna v. State, 1959 A.L.J. 83,” Voluntary drunkenness is no excuse for the commission of a crime. But if a man is made drunk through stratagem or the fraud of others, or through ignorance, or through any other means against his will, he will be excused.”

On the other hand, section-86 provides a consequence of no exemption on ground of voluntary intoxication. A person who on his own accord drunk himself will be deemed to be intoxicated.

Section-87

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 known 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 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 of each 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 commits no offence.

Section Analysis

An act which cause death or grievous hurt which is done  without knowledge and intention but done by consent will be excused from liability according to section-87 of the Penal Code 1860. There should fulfill two perquisites before commission the act.

a)     The person who is giving the consent should be above 18 years old.

b)     There must a contract whether express or implied.

Example-

Before commencing on boxing,the players made an agreement which gave him exemption from any kind of accident occurred at the time of playing boxing played without criminal intention.

Section 88

Act not intended to cause death, done by consent in good faith for person’s benefit

Section 88 defines that where the intention is not to cause death but by any such reason it may cause harm, or it may be intentionally caused by the doer, or the doer knows that it is likely to cause harm, to any person for whose benefit it is done in good faith and also expressly or impliedly the person has given the consent to suffer that harm will not be considered as an offence.

Illustration

C, a surgeon, knows that a particular operation may result in the death of W who is suffering from throat cancer, but there is no intention to cause his death and he does perform the operation in good faith and for W’s benefit that too with his consent. Here C has committed no offence.

Section 88 protects Surgeons and surgical operations. Persons not qualified as medical practitioners cannot claim the benefit of this section as they can hardly satisfy the court that they had undertaken the operation in good faith as defined in section 52, for good faith means a conscientious belief that they had skill to perform the operation, while the supposition is that they were unskilled and ignorant.

 

Section 89

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

Section 89 of the Penal Code states that any act done in good faith or for the benefit of the person who is below the age of twelve years, or who is of unsound mind by the guardian himself or by any other person, either expressly or impliedly then it is not an offence even though it is likely to cause harm to the person.

Provisos- provided –

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

Secondly- That this exception shall no 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 diseases or infirmity.

Thirdly- That this 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 diseases 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.

Illustration

A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, inasmuch as his object was the cure of the child.

Relevant cases:

·       Corporal punishment inflicted on a schoolboy a by teacher in good faith, in the interest of school discipline and without exceeding reasonable limits, will be covered by these sections and the schoolmaster will not be criminally liable for his act in inflicting the punishment. (AIR 1965 Cat 32).

·       Due care and attention, which are essential for good faith within the meaning of penal code and this section, imply that the physician or surgeon, who undertakes to administer medicine or to perform a surgical operation, possesses a reasonably sufficient knowledge and experience of his business. (AIR 1963 MadhPra 102).

Section 90

Consent known to be given under fear or misconception

Under section 90 of the Penal code, consent obtained by a false representation which leads to a misconception of facts will not be a valid consent.

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 which he gives his consent.

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

Scope and applicability of the section-

·       Consent obtained by a false representation which leads to a misconception of facts will not be a valid consent. Mere submission by one who do not know the nature of the act done, cannot give consent.

·       The consent of an insane woman is no consent in the eye of law and a person who subjects such a woman to sexual intercourse even though she apparently consents to it cannot escape liability for the offence under section 376 of the penal code.

Relevant cases:

·       Where the accused, a snake charmer, represented that owing to his power of charming even the bite of a poisonous snake would do no harm and a person was induced by such representation to allow himself to be bitten by a poisonous snake and died in consequence, the snake charmer will be guilty of murder, not only of culpable homicide not amounting to murder, where he knew that the person who allowed himself to be bitten by snake did so in consequence of misconception of fact for which the snake charmer was responsible. (1869) Beng LR(A Cr) 25.

·       If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact section 90 of the penal code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other. (1983) 2 Cal HN 290.

Section 91

Exclusion of acts which are offences independently of harm caused

Section 91 – the exceptions in sections 87, 88, and 89 do not extend to acts 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 whose behalf the consent is given.

Illustrations

Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or intended to cause to the woman. 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 miscarriage does not justify the act.

 

Relevant cases:

·       The accused, a student, become extremely depressed owing to his repeated failure in his examination and wanted to put an end to his own life. His wife, who was equally upset, requested him that he should first kill her and then kill himself.

·       In accordance with this fact, the husband killed his wife, but was arrested by the police before he could kill himself. It was held that the wife’s consent was not given under any misconception of facts and the husband was, therefore, only guilty of culpable homicide not amounting to murder under section 300 exception 5. (AIR 1958 Pat 190)

 

Section 92

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

Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:

Provided-

Firstly.-That this exception shall not extend to the intentional causing of death, or 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 of death or grievous hurt, or the curing of any grievous disease or infirmity;

 Thirdly.-That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;

 Fourthly.-That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

 Illustrations

 (a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A not intending Z's death but in good faith for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

 (b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z's benefit. A's ball gives Z a mortal wound. A has committed no offence.

 (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence.

 (d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child's benefit. Here even if the child is killed by the fall, A has committed no offence.

 Explanation.-Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.

Section 92 of the code deals with the cases that may be kept in the category of constructive consent, which means cases, in which, because of the certain urgent circumstances, consent, is  completely dispensed with, but, as ordered by law, the person causing harm is liberated from his liabilities. The main crux of section 92 lies in this. If  the consent is unobtainable from a person under section 88, or an incapable person cannot give his consent under section 89 and it is impossible to gain consent from his lawfully appointed guardian then, the person desiring to act with a good intention, in a bona fide manner, for the benefit of other person, may proceed to do so without receiving consent from the person.

Sec.92 defines as 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.

 

Section 93

Communication made in good faith

No communication made in good faith is 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. 

Illustration
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death.

This section gives protection to a person who makes a communication to another person in good faith for the benefit of that other person even if the same may cause harm to that other person. Sections 88, 89 and 92, on the other hand, deal with acts done for the benefit of a person. The burden of proof under section 93 is naturally on the accused to show that the communication had been made in good faith for the benefit of the person to whom it was made.

The illustration under this section shows that a surgeon is not guilty of an offence if he communicates to a patient in good faith for his benefit that he cannot live. To prove good faith in such a situation may sometimes be very difficult as the requirements of section 52 of the Code are to be satisfied and that is why it has been observed that generally medical doctors are not inclined to make such statements.

 

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.
 Explanation 1.-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 his having been 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 a 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 dacoits to enter and plunder it, is entitled to the benefit of this exception.

The defence provided under this section is also known as the defence of compulsion, or of duress, or of coercion. At the outset the section exempts from its purview the cases of murder and offences against the State punishable with death. Consequently, this defence is not available where a murder or an offence against the State punishable by death has been committed under compulsion.

The section says that except these cases, when something is done by a person who is compelled to do it by threats, which, at the time of doing it, causes a reasonable apprehension in the mind of the doer that if he does not do it instant death to him may result, his act does not amount to an offence.

The proviso clause under this section states that this defence is not available where the accused has done the act of his own accord by placing himself in such a situation by which he became subject to such constraint or from a reasonable apprehension of harm to himself short of instant death, he has placed himself in such a situation. The first explanation attached to the section states that if a person joins a gang of dacoits of his own accord Knowing their character, or he does so under a threat of being beaten, this defence will not be available to him.

The second explanation appended to the section says, on the other hand, that if a person is seized by a gang of dacoits and is forced under threat of instant death to do something, such as a smith under such circumstances compelled to take his tools and to force open the door of a house for the dacoits to enter and plunder it, his act does not amount to a crime.

The basis of the principle under this section is the famous maxim ‘acts ne invito factus est mens actus’ which means an act which is done by me against my will is not my act. The defence is not available in murder cases because of the principle ‘to save one’s own life no one is entitled to take another’s life’.

Similarly, the defence is not available in cases of offences against the State punishable with death because of the principle that State has to protect the interest of the community at large and consequently has a right to effect its own preservation.

 

Section 95

Act causing slight harm

Nothing is an offence by reason that it causes, or that it is intented 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.

 

Analysis of section :

Section 95 says that law will not notice slight harm as an offence whether done intentionally or unintentionally.

This section is established under a maxim: de minimis non curat lex (law does not care about trifles)

To drip a pen in another man's ink, to take a sheet of paper from another's drawer, causing hurt to a man by pressing Against him while getting into train, to call a man by bad names….are too trifle act that they do not deserve the name of crime.

The core intention of this section is to exempt from criminality of these tiny mischiefs.

If such tiny acts were punishable all free moment and interaction in society would come to an end and people would not be able to live together.

 

PRIVATE DEFENCE

Defending one's life and property against any kind of offence has been recognised in the legal system of Bangladesh through the idea of 'private defence' in section 96-106 of penal code.

Section 96

Things done in private defence

Section 96 says that no act will be considered as offence if done under the shelter of private defence.

Private defence is a right, not privilege that shelters the person from criminal liability of his act. The penal code does not give any definition of private defence.The doctrine of private defence is derived from a latin term "se defendendo" which says even homicide in defence of a man's own life is not felony.

It is expected that citizens ought to protest against oppression and be the defender Against any unjust act.But this protest must be reasonable and in a defensive mode.

Conditions and limits under which right of private defence may be claimed:

●      When someone's right to life is at a threat

●       When the same right is claimed by other members of the society

●      When the state undertakes the responsibility for maintenance of

law.

Where right of private defence can not be claimed :

●       No right of private defence against lawful acts (AIR 1963 Orissa 52)

●       When victim gets the opportunity to seek help from Authority, he cannot take the law into his own hands and if done so, victim would be the aggressor and no exemption can be claimed under the right of private defence (AIR 1975 SC 167)

 

Section 97

Right of private defence of the body and of property

Every person has a right, subject to the restrictions contained in section 99, to defend

Firstly. - his own body, and the body of any other person against any offence effecting the human body

Secondly.- The property, whether moveable or immoveable, of himself or of any other person, againstvany act whichvis an offence falling under the definition of theft, robbery, mischief or criminal trespass.

 

      

Analysis of section :

 

Section 97 lays down that

every person has a right under some limitations in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body.

 

Under section 97, every person in possession of property, movable or immovable, is entitled to defend his possession Against anyone who tries to evict him by force or to steal from him or to do such act which causes injury to that property. Injury of property must be the consequences of the following offences:

●      Theft

●      Robbery

●      House breaking by night

●      Mischief

 

Section 98

Right of private defence against the act of a person of unsound mind, etc

Under Section 98 physical or mental incapacity of the person against whom the right is exercised is no bar for the purpose of exercising the right of private defence.

 

Illustration

(a). Z, under the influence of madness, attempts to kill A. Z is guilty of no offence.  But A has the same right of private defence which he would have if Z were sane.

(b). A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a housebreaker, attacks A. Here, Z, by attacking A under this misconception,  commits no offence. But A has the same right of private defence Against Z, which he would have if Z were not acting under that misconception.

 

  # The section makes clear that a person does not lose his right of private defence of property merely because the opponent is under a misconception.(AIR 1959 ALL 790)

 

Section 99

Acts against which there is no right 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 attempted 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 or of grievous hurt, if done, or attempted to be done, by the direction of 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 in cases in which there is time to have recourse to the 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.

Explanation 1.-A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such unless he knows, or has reason to believe, that the person doing the act is such public servant.

Explanation 2.-A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

 

Right of private defence arises only against acts which are offences -

The right of private defence arises only against acts which constitute an offence except in certain specified circumstances – AIR 1974 SC 496

An act which may not be one’s liking but is not punishable under the provisions of the Penal Code will not give rise to a right of private defence – AIR 1948 Ali 205

 

Private defence of body-

The right of private defence of the body comprises not only the right to defend one’s own body against an offence against the human body but also the right to defend the body of any other person – AIR 1952 SC 165

In a case in India where a boy raised a cloud of dust in the street and the accused, a passerby chastised him by slapping him. It was held that the act of the boy was causing injury to the body of the passerby and that the accused’s act in slapping the boy was in exercise of the right of private defence – AIR 1944 Mad 168

 

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: -

Firstly-Such an assault as may reasonably 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 the 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 reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Scope of this section

Section 103 is analogous to section 100 and enumerates certain offences against which the right of private defense of property extends to the voluntary causing of death to the wrongdoer. The two sections together make up the complete law of justifiable homicide according to the Penal Code. These sections speak of offenses which are heinous in nature or notoriously dangerous.

However if the accused exceeds his right and kills his assailant though he could have caused lesser injury, the general exception may not apply. In that event the case is likely to fall under exception (2) two section 300 of the Penal Code. To claim a right of private defense extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.

 

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.

Scope of the section-

When dealing with question relating to the right of private defense of the body, section 100 and 101 must be read together. Under this section any harm short of death can be inflicted in exercising the right of private defense in any case which does not fall within the provisions of the preceding section which deals with the offenses in which the harm is likely to be very serious and hence justifies the killing of the assailant.

 

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 though the offence may not have been committed; and it continues as long as such, apprehension of danger to the body continues.

Scope of this section

It is clear from the wording of section 102 that the right commences and continues as long as danger to the body lasts. The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and the consequence thereupon and apprehension of danger, but it should not be a mere idle threat. There must be a reasonable ground for that apprehension.

Examples

In  AIR 1952 SC 165 - where during a communal ride a mob had actually broken into one part of accused’s house and we're knocking at his doors and shops had been looted and persons killed in the adjoining locality, it was held that the threat to break into accused’s house was implicit in the conduct of the mob, and give rise to the right of private defense to the accused even though no actual assault was directly made on the accused.

 

·       Every person in possession of property, movable or immovable, is entitled to defend his possession against anyone who tries to evict him by force or to steal from him or to do an act which has the effect of causing injury of it. Section 97 of The Penal Code 1860 lays down that every person has a right to defend the property whether movable or immovable, of himself or of any other persons, (subject to the restriction contained in section 99 of this Act.) against any act which is an offence falling under the definition of theft, robbery mischief or criminal trespass, or which is an attempt to commit such offence.

Here, again, section 103, 104, and 105 of this Act discuss about the right and scope of exercising private defence to protect one’s property. 

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:-

Firstly. – Robbery;

Secondly.- House-breaking by night;

Thirdly.- Mischief by fire committed on any building, tent or vessel, which custody or 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 Analysis

·       Sec. 103 is analogous to section 100 of this Act.

·       According to section 103 of this Act, the right of private defence of protect one’s property extends to the voluntary cause of death or of any other harm to the wrongdoer in the following four grounds-

-        Robbery;

-        House-breaking by night;

-        Mischief by fire committed on any building, tent or vessel, which custody or property;

-        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.

·       Only under the above mentioned circumstances the right of private defence would extend to causing of death.

·       And where there is no evidence of justify that there is any reasonably cause for apprehension of death or grievous hurt by theft, mischief or criminal trespass, the right of private defence of property shall not extend to causing of death.

Section 104

When such right extends 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 Analysis

·       Sec. 104 is analogous to section 101 of this Act.

·       According to this section, the right of private defence of property extends to causing any harm other than death if the offence is theft, mischief or criminal trespass but does not reasonably cause apprehension of death or grievous hurt.

·       Under the above mentioned circumstance, the right of private defence shall be exercised causing any harm to the wrong-doer but not to cause death. 

·       This section does not apply to a case where death has been caused in the exercise of the supposed right of private defence.

Case References

·       Under this section, the accused are entitled to cause any harm to the wrong-doer other than death (AIR 1965 Orissa 99).

·       Thus where the deceased was committing criminal trespass on the land which he was ploughing, the act of shooting at him by the accused could not be said to have been done in exercise of the right of private defence and therefore the accused would not be liable for his act to the fullest extent (PLD 1960 Lah 880).

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 by such house-breaking continues.

Section Analysis

·       Sec. 105 is analogous to section 102 of this Act.

·       According to this section, commencement and continuance of the right of private defence of property can be described as follows –

-        The right of private defence of property against theft continues –

i.       till the offender has effected his retreat with property, or

ii.     the assistance of public authorities is obtained, or

iii.   the property has been recovered.

-        The right of private defence against robbery continues –

i.       till the offender causes or attempts to cause to any person death or hurt or wrongful restraint, or

ii.     till the fear of instant death or of instant hurt or of instant personal restraint continues.

-        The right of private defence against criminal trespass or mischief continues –

i.       till the offender continues in the commission of criminal trespass or mischief.

-        The right of private defence of property against house-breaking by night continues –

i.       till the house-trespass which has been 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 to an innocent person, his right of private defence extends to the running of that risk.

Illustration

A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

Section Analysis

·       Section 106 of this Act empowers a person to exercise his right of private defence with the risk of harm of an innocent person in the following circumstances –

-        where there is an assault which reasonably causes the apprehension of death, and

-        the defender is in such a situation where he can not effectually exercise his right of private defence without risk of harm to an innocent person.

·       under above mentioned circumstances a person can make any harm to an innocent while exercising his right of private defence, and here he shall be deemed to commit no offence.

Case Reference

The right of private defence of the body extends of the voluntary causing of death of the offence which occasion the exercise of the right is an assault which may reasonably cause the apprehension of either death or grievous hurt. The right of private defence is not applicable when there is no reasonable apprehension of death or grievous hurt. (Khundoker Saiful Islam Vs. State, 50 DLR, AD 126)

General Conclusion

 

The law of private defence is founded on two cardinal principles:

 (a) Everyone has the right to defend one’s own body and property as also to another’s body and property. The law does not require him to be cowardly;

(b) This right cannot be used as a pretence for justifying aggression, i.e. for causing harm to another person nor for inflicting more harm than is necessary to inflict for the purpose of defence.

• Law allows resort to repel force forwarding off an injury but not for taking revenge.

• The right of private defence is not available to one who resorts to retaliation for any past injury, but to one who is suddenly confronted with the immediate necessity of averting an impending danger not of his creation.Right of private defence is designed to serve social purpose.

• When enacting sections 96 to 106 of the Penal Code excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggression, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens when faced with grave danger.

• The law does not require a law abiding citizen to behave like a coward when confronted with an immediate unlawful aggression.

There is nothing more degrading to human spirit than to run away in face of danger. The right of private defence is thus designed to serve social purpose and deserves to be fostered within the prescribed limit (1971 SCO 1183).

 

 Submitted by -

1812516129 - SUBAH SAMIHA AFRID

1812016138 - SANJIDA RAHMAN

1812116141 - RAHIZA TASNIM

1812016155 - MAISHA TABASSUM

1812116177 - JANNATI ZAHRA MAHBUBA

1812016202 - ASFANA AREFIN

1712018196 - AFIA FARZANA

1612316155 - MST. SIMA AKTER