GENERAL EXCEPTONS

The Indian Penal Code provides some general defences under chapter four that
exonerate criminal liability which based on the premise that though the person
committed the offence, he cannot be held liable. This is because at the time of
commission of offence, person was justified of his/her acts, or there was absence of
mens rea. However, it is not all acts that are to be punished. There are certain
defences provided under the ambit of Indian Penal Code (IPC),
1860 from Sections 76 to 106. Some exceptions such as mistake of fact, accident
and necessity are available when person was mistaken to existence of some facts
and act done without criminal intention. However, as per Section 105 of Indian
Evidence Act, 1872, the burden of proof regarding existence of a situation of
general defences lies on the accused. The criminal law covers various punishments
for offences which vary from case to case. But it is not always necessary that a
person gets punished for a crime which he/she had committed. The Indian Penal
Code (IPC), 1860  recognized certain defences in Chapter IV under "General
Exceptions."Section 76 to 106 covers these defences which are based on the
presumption that a person is not liable for the crime committed.By tendering a legally
recognized defence to a criminal conduct person can escape criminal liability. Some
common defences of criminal law, such as insanity, infancy and intoxication are
based on the defendant's lack of capacity to be held legally responsible. These
defences depend upon the circumstances prevailing at that point of time, mensrea of
person and reasonability of action of that accused.

Mistake of Fact:

Mistake of fact arises when accused misunderstood some fact that negates an
element of crime. This legal weapon can be used, where accused succeeds to prove
that he/she was mistaken to the existence of some facts or ignorant of the existence
of such facts. It is a condition that such mistake must pertain to fact not law. 

Section 76 and 79 of IPC contains the provision of mistake of fact. Such mistake

must be reasonable and must be of fact and not of law. The legal
maxim, "ignorantia facti excusati ignorantia juris non excusat" which means
ignorance of fact is an excuse, but ignorance of law is no excuse. So it is a basic
requirement to be get protected under the sphere of this defence that mistake must
be of fact.

Section 76: Act done by a person bound, or by mistake of fact believing

himself bound, by law.__Nothing is an offence which is done by a person who is,
or who by reason of a mistake of fact and not by reason of a mistake of law in good
faith believes himself to be, bound by law to do it.

Section 79: Act done by a person justified, or by mistake of fact believing

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

Thus it is cleared that an act will not be an offence, if it is committed in a bonafide

manner by a person who by mistake of fact believes himself to be bound by law or
who bound by law. Such belief must be a mistake of fact not law and that should be
exercised in good faith.

In Chirangi v. State (1952) Cri LJ 1212, the accused in a moment of delusion

believed his son to be an animal, he assailed him with an axe. It was held that he
was justified as he mistook a human being to be a dangerous animal and was not
held liable for his mistake.

Mistake of fact will not be a valid defence if the act is committed is illegal itself.

In R v. Princes (1875) LR 2 CCR 154, in this case, the accused was charged of
unlawfully taking an unmarried girl of 16 years against the will of her father, it was
found that the accused had bona fide and reasonable belief that the girl was older
than 16 years. It was held that the defence was not valid on the ground that act of
abduction is a wrongful and immoral act.

A person's act which constitutes an offence comes under the ambit of this defence
only when he acts in good faith and with good intention and believes that his act is
justified by law.

In Keso Sahu v. Saligram Shah (1977) Cri LJ 1725, in this case, the court held that
the accused showed that he in good faith and believing that the offence of smuggling
rice was going on in the plaintiff's house and thus he brings the cart and cartman to
the police station. The said suspicion was proved to be wrong. The accused can take
the defence of mistake of fact as he is doing the act in good faith and believing it to
be justified by law.

In Dhaki Singh v. State AIR 1955 All 379, the accused shot an innocent person
mistaking him to be thief, although he believes that he is bound to nab the thief.
According to the officer's finding, he was not in the position to apprehend him, fired
at him. Here, he cannot take the defence of mistake of fact as the act done by him
was not justified.

Accident:

With this defence a person can escape criminal liability where such act of person
occurs as a result of accident. Such act must be devoid of intention. Law does not
intend to punish a man of the things over which he could possibly have no
control. Section 80 of IPC talks about accident as a general defence.

Section 80: Accident in doing a lawful act.__ Nothing is an offence which is done
by 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.

An accident must be unintentional and unexpected. It implies to happening which

cannot be predicted by prudent man. According to Section 80, any act done without
criminal intent or with knowledge with proper care and precaution while doing a
lawful act in a lawful manner with lawful means, will constitute as an accident.
However, if there is no connection between the harm and the act, then there may be
no liability for the harm caused.

In State of Orissa v. Khora Ghasi (1978) Cri LJ 1305, in this case, the accused
killed the victim by shooting an arrow with the bona fide belief that he was shooting a
bear that entered into the fields to destroy his crops, the death was said to be
accident.

If the accident occurs while doing an unlawful act, the act would not attract the
provision of Section 80 of IPC. In Jogeshwar V. Emperor (24 Cri LJ 789), the
accused was giving the fist blow to the victim but accidently hit his wife who was
holding her 2 month old child, the blow hit the head of the child which resulted in his
death. It was held that even though the child was hit by accident, the act was not
lawful, not done by lawful means or in a lawful manner.

Necessity:

Defence of necessity applied, when a person in order to prevent a greater harm from
taking place, commits a crime or a criminal act during an emergency situation,
wherein accused can escape criminal liability because his/her act was justified as
he/she had the intention to prevent a situation which would cause a greater harm as
compared to the criminal act committed by him or her.

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 is likely to cause harm, if it be done without any criminal intention
to cause harm, and in good faith for the purpose of preventing or avoiding other
harm to person or property.

An act of accused in order to prevent greater harm without any criminal intention falls
under the ambit of necessity. Such act must be done in good faith in order to prevent
the happening of great harm. The question of motive is of no importance, where
positive evidence does exist in the favor of accused.

In Gopal Naidu v. Emperor (1923) ILR 46 Bom 605, the police officials were guilty
of the offence of wrongful confinement for disarming and restraining a drunken man
carrying a revolver in his hand. Though the offence of public nuisance was a non-
cognizable offence without a warrant, it was held that they can plead justification
under this defence. In this case the Madras High Court held that the person or
property to be protected may be person or property of the accused himself or of
others. The word harm in this section means 'physical injury.'

In R v. Dudley and Stephens (1884) 14 QBD 273 DC, in this case three adults and
one minor were cast adrift in a ship following a shipwreck without food and water.
Their food ran out 7 days before the storm and they had no water for 5 days. Dudley
suggested to sacrifice the minor boy as he was too weak to which Brook refused. On
the 20th day Dudley and Stephens without the consent of Brooks killed the boy as he
was close to death and had no family. All three fed on the boy and were rescued four
days later. In this case defence of necessity was not held valid and they were
convicted for murder.
Infancy:

Infancy is a legal incapacity to be held responsible for a crime due to the age of the
perpetrator. There is a legal incapacity for the crime under seven years of
age. DoliIncapaxis a presumption of law which provides that child has no discretion
to distinguish right from wrong, thus criminal intention does not arise. The defence of
infancy was first time raised before the Hon'ble Supreme Court in GopinathGhosh
V. State of West Bengal. The Sections 82 and 83 of Indian Penal Code deals with
the criminal liability under infancy.

Section 82: Act of a child under seven years of age.—Nothing is an offence

which is done by a child under seven years of age.

Section 83: Act of a child above seven and under twelve of immature
understanding.—Nothing is an offence which is done by a child above seven years
of age and under twelve, who has not attained sufficient maturity of understanding to
judge of the nature and consequences of his conduct on that occasion.

The essential ingredients of Sections 82 and 83 are that children under seven years
of age is doliincapax, i.e. he is incapable of committing a crime and cannot be guilty
of any offence. In Krishna Bhagwan V. State of Bihar, Patna High Court upheld
that if a child who is accused of an offence during the trial, has attained the age of
seven years or at the time of decision the child has attained the age of seven years
can be convicted if he has the understanding an knowledge of the offence committed
by him.

Insanity:

To use insanity as a legal excuse, the defendant has to show that he/she lacked the
capacity to understand that the act was wrong, or the capacity to understand the
nature of the act. The logic of the insanity as a defence goes back to the idea of
mensrea and culpability. We as a society usually only want to punish those people
who knew that any act against the fabric of the society, was wrong. The foundation
of this law was first laid in the M'Naughton case by the House of Lords in 1843.
The basis of the M'Naughtoncase is the inability to distinguish right from wrong. The
basic idea is that some people, under the duress of a mental disorder, cannot control
their actions despite understanding that the action is wrong. This general defence is
explained under Section 84 of the Indian Penal Code.

Section 84: Act of a person of unsound 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.

So it falls upon the accused to prove his insanity at the time of offence. It needs to be
proved by the accused that because of the accused's unsoundness of mind, he was
incapable of knowing the nature of the act or that the act was contrary to provisions
of law, or was wrong.
In ShrikantAnandraoBhosale V. State of Maharashtra, where a husband killed his
wife while he was suffering from paranoia schizophrenia. The Court allowed him the
defence of insanity as he was not fully aware of his conduct and its consequences.

Legal insanity as distinguished from medical insanity envisaged and covered by

Section 84 IPC is narrower and is applicable if the person accused was incapable of
knowing the nature of the act or knowing that what he was doing was either wrong or
contrary to law. The proper question, which is to be asked and answered, whenever
a plea under Section 84 is raised, is whether the appellant/accused at the time of
doing of the act, was incapable of knowing the nature of the act or that what he was
doing was wrong or contrary to law. (See Siddhapal Kamala Yadav v. State of
Maharashtra, AIR 2009 SC 97). In other words, to establish insanity under Section
84 IPC, it has to be established that the accused was laboring under such disability,
i.e. unsoundness of mind, as not to know the nature and quality of the act he was
committing or the act was wrong/contrary to law. Further, the crucial time for
ascertaining insanity is the time when crime was committed i.e. the time when the
act or offence was in fact done. Unsoundness of mind after or before commission of
the offence is not relevant, though may throw light on whether the accused was
unsound when the offence was committed. (See State of Madhya Pradesh v.
Ahmadulla, AIR 1961 SC 998, S.W. Mohammed v. State of Maharashtra AIR 1972
SC 2443, Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563).
17. Every man is presumed to be sane, till contrary is established. Insanity or
unsoundness of mind of the type stipulated in Section 84 IPC is an exception.
Illustration (a) to Section 105 of the Evidence Act, quoted above, casts burden on the
accused to show that the exception carved out under Section 84 IPC is applicable
and burden is on the accused to prove insanity at the time when the offence was
committed. However, the burden on the accused to prove insanity is not higher than
that upon a party in civil proceeding i.e. the principle of preponderance of probability
applies. It is not for the accused to establish conclusively or beyond doubt that he
was insane to get benefit of Section 84 IPC but he is entitled to claim insanity, if he is
able to raise a doubt regarding his sanity. To decide on the question of insanity, the
Court should examine the behavior and antecedents of the accused before, during
and subsequent to the event, to the extent they are relevant to record a finding on
the mental condition of the accused. However, while doing so the act itself or
absence of motive is not consequential and determinative.
Hidayatullah J. in Baswantrao Bajirao Vs. Emperor, 1949 Cri.L.J., 181 where the
accused had killed his two wives, has opined:-
"34. As to the second point about motive. The prosecution did lead some evidence of
motive but the learned Sessions Judge did not accept it. I do not differ from the
learned Sessions Judge and give the accused the benefit of the doubt. One fact,
however, stares me in the face and it is the failure of the two wives to bear a son to
the accused. When a man destroys his two wives in the manner he did there might
be a hundred different reasons which might have prompted the action. Though I do
not go as far as Mayne J. did when he said: "that it is never necessary to seek the
motive for a murder when the person murdered is the man's own wife" Mayne p. 185
(ibid) I am of opinion that failure to prove a motive does not necessarily mean that
there was no motive. In Beg v. Haynes, (1859) 1 P and P 666 : 175 B. Rule 898)
Bramwell B. in summing up to the jury, said:
As to the defence of insanity, it has been urged for the prisoner that you should
acquit him on the ground that, it being impossible to assign any motive for the
perpetration of the offence, he must have been acting under what is called a
powerful and irresistible influence, or homicidal tendency. But I must remark as to
that that the circumstances of an act being apparently motiveless is not a ground
from which you can safely infer the existence of such an influence. Motives exist
unknown and innumerable which might prompt the act. A morbid and restless (but
resistible) thirst for blood would itself be a motive urging to such a deed for its own
relief. But if an influence be so powerful as to be termed irresistible, so much the
more reason is there why we should not withdraw any of the safeguards tending to
counteract it.
xxxx xxxx
46. A crime is not excusable under the law whether done under an insane impulse or
not unless it satisfies the grounds on which alone it can be excused. Those grounds
are optimised in Section 84, Penal Code. This brings me to the discussion of the
second and the third point. The second point is that there was confusion of the
intellectual faculties. Most cases of insanity admit of some confusion of the mind. But
what the law requires is that confusion must reach a certain degree so as to impair
the cognitive faculties completely. This brings me to the third point. Here Dr. Roy
himself admits that the confusion or clouding of consciousness was only partial. He
admits that the prisoner knew the nature and quality of the act. This he could not but
admit because there was no evidence of delusions of any kind. He, therefore, says
that at the time of the commission of the crime the prisoner did not know that what
he was doing was wrong or contrary to law. It is indeed difficult to see how he could
say that not being present at the time of the murder. Within four or five hours the
accused knew that his actions were wrong because he admitted his guilt and that it
was contrary to law because be asked whether the police had come. Dr. Roy says
that the consciousness that his deed was wrong and contrary to law was slowly
dawning on him. Now it is impossible for a doctor to depose to-the exact state of an
accused at the time of the commission of the offence. It is easier to say that the
accused knew that his act was wrong or contrary to law than to say the contrary.
Many doctors have frankly admitted this. Dr. Northward East frankly admitted his
inability in True's case:
Is it possible to speculate definitely upon the mental processes of a person who is
suffering from disease of the mind to say what he understands and he does not
understand, and what he thinks or does not think. It is extermely difficult."
The said judgment also takes notice of the five Mc' Naugten Rules and observers
that these rules do not define insanity and there are no tests indicated therein and
holds that in India we are governed by the IPC (Indian Penal Code). It appears that
in practice a wider immunity has been granted than what was postulated in Mc'
Naugton Rules of 1843.
Section 84 IPC uses the expression "unsoundness of mind" and postulates that it
should be of the nature and quality that the accused for the said reason (i) was
incapable of knowing the act he was doing or (ii) did not know what he was doing
was wrong morally or the act was contrary to law.
Intoxication:

Intoxication is a state of mind in which a person loses self-control and his ability to
judge. Intoxication is a defence available to criminal defendant on the basis that,
because of the intoxication, the defendant did not understand the nature of his/her
actions or know what he/she was doing. The defence of intoxication typically
depends on whether the intoxication was voluntary or involuntary and what level of
intent is required by the criminal charge.Under the Indian Penal Code the criminal
liability under intoxication is mentioned under section 85 and 86.

Section 85: Act of a person incapable of judgment by reason of intoxication

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

Section 86: Offence requiring a particular intent or knowledge committed by

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

Section 85 deals with offences committed under the influence of drugs or alcohol
which is caused by fraud or coercion. Section 86 deals with intoxication which is self-
induced. Bablu alias MubarikHussain V. State of Rajasthan, in this case SC
examined Section 85 of IPC and held that evidence of drunkenness, the evidence
which proves that the accused is incapable of forming the wrongful intent has also
been considered along with the other facts, and then it should be proved of the
accused person has the intention to commit crime.These sections do not protect
someone who voluntarily consumed intoxicants as the person loses his mental ability
because of his consensual act i.e. by self-induced intoxication.

Consent as a defence
Section 90 of the IPC, though does not define ‘consent’, yet lays down what is not
consent. It regulates the operations of Sections 87, 88 and 89 of the I.P.C. There are
four cases where a consent given by a person is no consent.
First: Person giving consent under the fear of injury– Under criminal law, consent
obtained by threat and violence would not be a defence. For example, Z threatened
A with a knife to sign his property paper in favour of X, Z’s son. Here the consent
was given under fear of injury.
Second: Person giving consent under the misconception of facts– if consent is
obtained under a misconception of facts, then it will have no value in the eyes of law.
For example, a woman had a consent sexual intercourse with a doctor on the belief
that he was making a medical examination of her. The doctor would be held guilty as
he made her believe that he was doing a medical examination of her.
Third: Consent given by insane people– People who are of unsound mind, or in an
intoxicated state of mind, incapable to understand the nature and consequences of
their acts. For example, A, in a heavily drunken state, signed his property paper in
favour of the liquor shop owner just to get one more liquor bottle. In the eyes of the
law, his consent has no value.
Fourth: Consent given by child- The last para of section 90 says consent given by a
child under the age of 12 years has no value in the eyes of law. In this case, the
consent will be given by the child’s guardians or person in charge of him.    

Conditions needed to plead consent as a defence

Section 87, 88, 89 and 90 of the Code deals with various conditions which are
needed to plead consent as a defence. These are mentioned below:

1. Person has consented for the risk.

2. The person must be above the age of 12 years unless the contrary appears
from the context and must not be of unsound mind, if yes then the consent
must be given by guardians or the person in charge of them on their behalf.
3. Consent be given under no fear or misconception of facts.
4. The said consent must be made expressly or impliedly.
5. The consent was not intended to cause death or grievous hurt.

Express and Implied Consent

Both express and implied consent are recognized under the Section. As long as
there is consent and it was freely given, the number of words or specific articulation
of the said consent is not necessary.
The term ‘express consent’ as far as criminal law is concerned is used to give
permission for something either verbally or in writing. When your friend asked you to
rent your flat for a day and you said ‘Yes’. Then, it is your express consent given
verbally to him.
X, had an operation of his backbone. But before the operation, the doctor told him to
sign a paper in which it was expressly mentioned that operation might cause his
death. X signed the paper as he had an unbearable pain. X died. The doctor will not
be liable.
The term ‘implied consent’ in criminal law is used to obtain either (1) consent by acts
and conducts, or (2) consent presumed. When a person enters a Big Bazaar store
and picks up goods that were exhibited for sale, then it can be presumed that there
is an implied consent to enter into the shop, to handle goods and to purchase them
also. This is an example of consent by acts and conducts.
X, on being friendly terms with Z, goes into his wardrobe in his absence and takes
away his shirt without Z’s express consent for the purpose of attending a party
tonight, and the intention of returning it. X has not committed the offence of theft as
he had an impression of Z‘s implied consent though Z has never given or in any way
signified the same. It was presumed consent.      
Scope of Section 89 of IPC
Section 89 of IPC deals with children below 12 years of age and persons of unsound
mind and hence, they do not have the legal capacity to give consent as they are
incapable of understanding the nature and consequence of their act. Hence, the
consent on their behalf is given by guardians or persons legally in charge of them.
The doer must act in good faith and for the benefit of the person harmed.

When the benefit under Section 89 cannot be claimed

The following four provisos have been laid down by the legislature to make sure
some additional safeguards other than the fact that the doer should act in ‘good
faith’:

1. Act shall not extend to intentional causing of death, an attempt to cause

death. For instance, A in good faith intentionally kills his son, who is suffering
from incurable heart disease just to give him a peaceful death. A would not
be protected under this section.  
2. This provision will not apply in the situations wherein the person was aware
or had a knowledge of his act which is likely to cause death unless it was
done for the prevention of death or grievous hurt, or the curing of any
grievous disease or infirmity. For instance, A in good faith, for his daughter’s
benefit without her consent, has consented for transplantation, knowing it to
be likely to cause death in the process, but not intended to cause her death.
A will be given the defence of section 89, since his objective was to cure her
daughter.
3. This provision will not apply in the situations wherein the person voluntarily
causes grievous hurt or attempted to cause grievous hurt unless it was done
for prevention of death or grievous hurt, or the curing of any grievous
disease or infirmity. For instance, A in good faith, for his child’s pecuniary
benefit, emasculates him. Here A would not be protected under this
provision as A has caused grievous hurt to his child for a purpose, other than
preventing death or grievous hurt.
4. This provision will not extend to the abetment of any offence, which is not
covered under this provision. For instance, A, in good faith, abets B, his
friend, to sleep with his daughter Y, who is under 12 years of age for
pecuniary benefits. Neither A nor B would be given protection under this
section.

Dasrath Paswan v. State (1957)

In this case, the accused has failed at an examination for three consecutive years.
By disappointing these continuous failures he decided to end his life. He discussed
his decision with his wife who was a literate woman of 19 years of age. His wife said
to kill her first and then kill himself. Accordingly, the accused killed his wife first and
was arrested before he could kill himself. It was held that the wife had not given her
consent under the fear of injury or misconception of fact. Hence, the accused would
not be liable for murder.
Baboolun Hijrah v. Emp. (1866)
In this case, a man submitted himself to emasculation. It was performed neither by a
skilful hand nor in the least dangerous way and resulted in the death from the injury.
Before the Court the accused pleaded that he did know that the practice of
emasculation was forbidden by law and also he acted under the free consent of the
deceased. The court held the accused not guilty.

Sukaroo Kaviraj v. The Empress (1887)

In this case, Mr. Kaviraj, a qualified doctor performed an operation of internal piles by
cutting the vital part with an ordinary knife. The patient died because of copious
bleeding. He was prosecuted for causing death by rash and negligent act. The Court
held him liable as he did not act in good faith.

Jayanti Rani Panda v. State (1983)

In this case, the accused was a teacher and frequently visited the house of the
complainant. In the course of time, they developed feelings for each other and
promised to marry her soon. Upon this assurance, sexual relationships have
developed between them. The complainant became pregnant and pressured to
perform marriage soon. When the complainant did not agree to undergo abortion,
the accused disowned his promise and stopped visiting her house.
A case of rape was filed against the accused. The Court held accused not liable as
section 90 will not be applicable because the complainant has given her free consent
to series of sexual relations and also the prosecution is unable to establish beyond a
reasonable doubt that the accused begin sexual contacts without the intention to
marry her. 

Bishambher v. Roomal (1950)

In this case, the complainant molested a girl. Immediately, around 200 people
gathered to punish him. Three local people intervened and tried to bring out a middle
way. All the people gathered before the Panchayat and the plaintiff agreed to follow
the decision of the Panchayat.
The Panchayat ordered the plaintiff to take a round of the village with his blackened
face. All the intervening people were arrested and prosecuted for Section 323 and
502 of the IPC. The Court held that the accused were entitled to the benefit of
Section 87 of the IPC because they acted in good faith without any criminal intention
to prevent serious consequences arising out from the previous act of the
complainant.

Udaya v. State of Karnataka (2003)

In this case, the prosecutrix gave her consent to the appellant for having sexual
intercourse. It was alleged that the accused Udaya expressed love and promised to
marry the prosecutrix on the later date. She started cohabiting with the accused
consciously and became pregnant. The accused was charged and tried for
committing rape as the prosecutrix pleaded that she consented under the
misconception of fact that the accused Udaya shall marry with her. 
Rejecting this contention it was held that the accused Udaya was not liable for the
offence of committing rape because the prosecutrix was aware of the fact that they
belonged to different castes and proposal of their marriage will be opposed by the
family members and yet she started cohabiting with accused consciously and
become pregnant. Consent to have sexual intercourse, in this case, cannot be said
to be given under a misconception of fact i.e., promise to marry because she also
desired for it. False promise to marry is not a fact within the meaning of the Penal
Code

Rao Harnarain Singh Sheoji Singh v. State (1957)

In this case, the accused who was an advocate and Additional Public Prosecutor
forced his tenant to give his wife for satisfying the carnal lust of Rao Harnarain and
his friends. They all ravished her all night that resulted in her death almost
immediately. 
Upon being prosecuted, the accused pleaded that the deceased husband had
consented for this and also the woman came with her own, therefore they should not
be held liable. The Court made clear the distinction between consent and
submission. 
The Court said all consent involves submission but not all submission is consent.
Here, in this case the deceased made her submission before the accused because
her husband was threatened with severe consequences. The Court held all of them
liable for committing and rape and murder.

Poonai Fattemah v. Emp. (1869)

In this case, the accused, a snake charmer persuaded the deceased to allow himself
to be bitten by a poisonous snake, making him to believe that he had the power to
protect him from the harm. Here, the consent given by the deceased was under the
misconception of the fact that the accused had a skill to cure snake bites. Therefore,
the Court held that the accused was not entitled to protect on the ground of consent
of the deceased and held liable.

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SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE

24. The rule as to the right of private defence has been stated by Russel on Crime
(11th Edn., Vol.1, p.491) thus:
"..... a man is justified in resisting by force anyone who manifestly intends and
endeavours by violence or surprise to commit a known felony against either his
person, habitation or property. In these cases he is not obliged to retreat, and may
not merely resist the attack where he stands but may indeed pursue his adversary
until the danger is ended, and if in a conflict between them he happens to kill his
attacker, such killing is justifiable."

When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal
provisions, certain classes of acts, done in good faith for the purpose of repelling
unlawful aggressions, 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 imminent unlawful aggression. As repeatedly observed by this court there is
nothing more degrading to the human spirit than to run away in face of danger. The
right of private defence is thus designed to serve a social purpose and deserves to
be fostered within the prescribed limits.
25. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-
99) aptly observed that self-help is the first rule of criminal law. It still remains a rule,
though in process of time much attenuated by considerations of necessity, humanity,
and social order.
According to Bentham, in his book `Principles of Penal Laws' has observed "the right
of defence is absolutely necessary". It is based on the cardinal principle that it is the
duty of man to help himself.
26. Killing in defence of a person, according to the English law, will amount to either
justifiable or excusable homicide or chance medley, as the latter is termed,
according to the circumstances of the case.
27. But there is another form of homicide which is excusable in self-defence. There
are cases where the necessity for self- defence arises in a sudden quarrel in which
both parties engage, or on account of the initial provocation given by the person who
has to defend himself in the end against an assault endangering life.
28. The Indian Penal Code defines homicide in self-defence as a form of substantive
right, and therefore, save and except the restrictions imposed on the right of the
Code itself, it seems that the special rule of English Law as to the duty of retreating
will have no application to this country where there is a real need for defending
oneself against deadly assaults.
29. The right to protect one's own person and property against the unlawful
aggressions of others is a right inherent in man. The duty of protecting the person
and property of others is a duty which man owes to society of which he is a member
and the preservation of which is both his interest and duty. It is, indeed, a duty which
flows from human sympathy. As Bentham said: "It is a noble movement of the heart,
that indignation which kindles at the sight of the feeble injured by the strong. It is
noble movement which makes us forget our danger at the first cry of distress..... It
concerns the public safety that every honest man should consider himself as the
natural protector of every other." But such protection must not be extended beyond
the necessities of the case, otherwise it will encourage a spirit or lawlessness and
disorder. The right has, therefore, been restricted to offences against the human
body and those relating to aggression on property.
30. When there is real apprehension that the aggressor might cause death or
grievous hurt, in that event the right of private defence of the defender could even
extend to causing of death. A mere reasonable apprehension is enough to put the
right of self-defence into operation, but it is also settled position of law that a right of
self-defence is only right to defend oneself and not to retaliate. It is not a right to take
revenge.
31. Right of private defence of person and property is recognized in all free, civilsed,
democratic societies within certain reasonable limits. Those limits are dictated by two
considerations : (1) that the same right is claimed by all other members of the society
and (2) that it is the State which generally undertakes the responsibility for the
maintenance of law and order. The citizens, as a general rule, are neither expected
to run away for safety when faced with grave and imminent danger to their person or
property as a result of unlawful aggression, nor are they expected, by use of force, to
right the wrong done to them or to punish the wrong doer of commission of offences.
32. A legal philosopher Michael Gorr in his article "Private Defense" (published in the
Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241)
observed as under:
"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally
permissible to engage in what Glanville Willams has termed "private defence", i.e., to
inflict serious (even lethal) harm upon another person in order to protect oneself or
some innocent third party from suffering the same".

33. The basic principle underlying the doctrine of the right of private defence is that
when an individual or his property is faced with a danger and immediate aid from the
State machinery is not readily available, that individual is entitled to protect himself
and his property. The right of private defence is available only to one who is
suddenly confronted with the necessity of averting an impending danger not of self
creation. That being so, the necessary corollary is that the violence which the citizen
defending himself or his property is entitled to use must not be unduly
disproportionate to the injury which is sought to be averted or which is reasonably
apprehended and should not exceed its legitimate purpose.
34. This court in number of cases have laid down that when a person is exercising
his right of private defence, it is not possible to weigh the force with which the right is
exercised. The principle is common to all civilized jurisprudence. In Robert B.
Brown v. United States of America (1921) 256 US 335, it is observed that a
person in fear of his life in not expected to modulate his defence step by step or tier
by tier. Justice Holmes in the aforementioned case aptly observed "detached
reflection cannot be demanded in the presence of an uplifted knife".
35. According to Section 99 of the Indian Penal Code the injury which is inflicted by
the person exercising the right should commensurate with the injury with which he is
threatened. At the same time, it is difficult to expect from a person exercising this
right in good faith, to weigh "with golden scales" what maximum amount of force is
necessary to keep within the right every reasonable allowance should be made for
the bona fide defender. The courts in one voice have said that it would be wholly
unrealistic to expect of a person under assault to modulate his defence step by step
according to attack.
Against whom and to what extent can the right of private defence
be exercised? (Section 97)
 
Section 97 states that the right of private defence is available against the
body and property only. Along with this, Section 99 states the exceptions
to the rule of private defence. Both of these sections together lay down
the principles of the right of private defence.

The right of private defence against Body

Under section 97, every person has a right to defend his body or of any
other person or to defend against any offence which affects the human
body. The person can also exercise the right against his property
including both movable property such as a car or jewellery and
immovable property such as land or house.

The right of private defence against property

A person can also exercise the right against the property of other people
along with his own property. The right of private defence against property
can only be exercised against offences in the category of theft, robbery,
mischief or criminal trespass or against theft, mischief or house-trespass
the person is under reasonable fear of probable death or grievous hurt.
Every person has a right to dispose of his property and to throw away any
trespasser who enters into the property without permission. But if the
trespasser has the possession of the property and the owner knows about
it, the right of private defence is not available to the owner. For example,
tenant.
The right of self-defence against a trespasser is available till the time the
trespasser is actually on the land. If the trespasser tries to dispossess the
owner from the property, the owner has the right to inflict such injuries
over the trespasser to dispossess him from the property. The moment the
trespasser is dispossessed, the owner’s right of private defence is expired
and he cannot take laws in his hands and injure the trespasser.
There are cases where the private defence is available against the owner.
If the person is in lawful possession of the property and the owner tries to
dispossess him from the property, the possessor of the property has a
right to exercise self-defence.
For exercising such right, following conditions needs to be fulfilled
[JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 579 (33RD ed. 2016)]:

● The trespasser must be in actual physical possession of the

property over a sufficiently long period.
● The possession must be in knowledge of the owner, either
expressed or without any concealment of fact.
 ● The process of dispossession of the true owner by the trespasser
must be complete and final.
● In case of culturable land, if the possessor has grown any crop on
the land then none including the true owner has a right to destroy
those crops [Puran Singh v. state of Punjab, 1975 4 SCC 518].

The right of private defence of property is available to prevent theft,

robbery, mischief or criminal trespass or an attempt to commit any of
these offences. Where the offence has been committed or the act
constituting the offence has ceased, the right cannot be exercised [68].

1. In short, the law of private defence is summarised by a full

bench of Orissa High court in the case of State of Orissa v.
Rabindra Nath [State of Orissa v. Rabindra Nath, 1973 CrLJ 1686]:

● It is the responsibility of the State to defend a person’s body and

property. In the same way, it is the duty of every person to take
shelter under the machinery of the state. But in case such aid is
not available, he has the right of private defence.

● Whether or not a person was allowed to use his right of private

defence without the recourse of public authorities depends upon
the nature of threat of imminent danger. The right of private
defence of property commences when a reasonable apprehension
of danger to the property commences.

● After the actual danger has commenced, the question of applying

for protection of the public authorities does not arise.

● The law does not expect a person to run away for protection under
public authorities when someone attacks on a person in possession
of the property. The moment reasonable apprehension of
imminent danger to the property commences, the right of private
defence is available to the individual. There is no duty on the
accused to run for protection of public authorities.

● When a person in possession is attacked by trespassers, he has

the whole right to drive away the aggressors by application of
force. When the person who is in physical possession of the
property is dispossessed by the trespasser, he is entitled in
exercise of the right of private defence to drive away such intruder
provided that the trespasser has not obtained settled possession
over the property.

● If the accused although has the physical possession of the

property but at the time of attack, if he is not present at the spot,
is entitled to exercise his right to force aggressor to not to enter
into the property or to turn away the aggressor when he comes to
 know that the trespasser is getting into possession of his property
or is attempting to do so.

● If there is an imminent danger to the property and the person in

possession incurs sufficient injury, he is entitled to defend the act
of aggressor without asking for the aid of the state.

● When there is no serious loss to the property or no urgency for

driving away from the trespasser, the person must recourse to
state aid and not exercise any offence under the shelter of private
defence. Where such person exercising the right is present on the
property at the time trespass is attempted, he would ordinarily
have the right of private defence as soon as his possession over
the property is actually threatened. There can be an exception to
the rule of seeking state aid in case where the aggressor tries to
take advantage of the temporary absence of the person who has
the settled possession of the property and attempts to trespass to
the property.

● Just because the location of police station was not away from the
crime scene, it does not mean that a person cannot exercise his
right of private defence. This can be taken into account if it is
proved that could have been timely and effective. The
effectiveness of the police help depends on the possibility that
timely information to the police and obtaining timely assistance
from the police was possible and effective.

● In dealing with cases of private defence, a distinction must be

made between enforcing a right and maintaining the right.
● If the aggressor was only preparing for the attack, this does not
mean that the other person has no right of private defence. It
must, however, be proved that there was no time to take recourse
of public authorities.

Can you exercise the right of private defence against a person of

unsound mind? (Section 98)
We know that a person of unsound mind is immune from getting punished
for any offence. But what can we do if that person attacks or tries to
harm our body or property? It is said that the immunity given to the
insane person will not affect your right of private defence in any manner.
Although any offence committed by an insane person is no offence in the
eyes of the law; this won’t affect your right of private defence. An
individual has the same right of private defence against an insane person
as he has against a sane person.
For example, a person under the influence of sleepwalking, tries to kill Mr.
Gabbar. Mr. Gabbar in private defence hits that person with a stick
causing hurt. Here, the person who is sleepwalking is guilty of no offence.
Mr. Gabbar, however, has a complete right of private defence.
This right is applicable to other exceptional cases as well such as:

● A child below 12 years

● A person who lacks understanding
● A person with unsound mind
● An intoxicated person

When can a person exercise his right of private defence against

the body to cause death? (Section 100)

1. 100 authorises a person to take away life in exercise of his right of

private defence against body. The basic idea behind Section 100
was that no innocent person should be punished. If a person has
committed an offence in order to protect his or someone else’s
person or property instead of running away from the spot; the law
gives him the right to defend the concerned person or property

It is the duty of the court to check if the action of the accused is protected
under the exceptions of Section 100 or not, even though the accused has
not taken a plea. It is not necessary that the accused has obtained any
injury or not. Mere reasonable apprehension would be sufficient for the
exercise of right of private defence
The right of private defence can save a person from guilt even if he
causes the death of another person in the following situations:

● The deceased was the actual assailant,

● There was a threat to life or of great bodily harm must be present,
● The threat must be real and apparent as to create honest belief
that necessity exists,
● There must be no other reasonable or safe mode of escape,
● There must be a necessity of taking life
● If the offence which is committed by the deceased and which had
occasioned the cause of the exercise of the right of private defence
of body and property falls within any of the seven categories
enumerated in Sections 100 of the penal code

This Section exercises a limit on the right of private defence to the extent
of absolute necessity. It must not be more than what is necessary for
defending aggression. There must be reasonable apprehension of danger
that comes from the aggressor .
The question of private defence arises only when the prosecution has
established that the act of the accused is an offence [Nga Chit Tin v. King, AIR 1939 Rang 225].
Cases in which the right of private defence can be exercised to the
extent of causing death:

● Fear of death:  If there is an assault and a person has a

reasonable fear that his death will cause if he will not kill that
person.
● Fear of grievous hurt:  If there is an assault and a person has a
reasonable fear that he will be grievously hurt if he will not kill that
person.

To prove that the person was under fear of death or grievous hurt; the
following conditions need to be fulfilled:

o The accused must not have caused the fault i.e. he must
not have started the encounter first. It needs to be the
victim who should cause the fear of death or grievous hurt
without fault of the accused.
o There must be an approaching danger to life or of great
bodily harm. This danger must be so evident and real that
the other person felt the necessity to cause death.
o There must not be any other safe or reasonable way to
escape from that situation.
o There must be a necessity to do so. The act of voluntarily
causing death can be excused only when the person feels
that it is necessary to act that way [25].

Reasonable Apprehension of danger:

1. The right of private defence of the body extends to voluntarily causing of

death to the assailant during the assault if the victim has reasonable
 apprehension that grievous hurt would otherwise be the consequence. It
is this apprehension in the mind of the victim which gives him the right
of private defence to voluntarily cause death of the assailant [Raja Ram v. State of
UP, 1977 All Cr C 25].

In considering the plea of self-defence, it is not to be considered that how

many injuries have been inflicted upon the accused. It does not matter if
any injury has been inflicted or not. What is to be considered is whether
the accused had any reasonable apprehension of grievous hurt or death
to himself or not [27].
Real or apparent danger:
The apprehension of death or grievous hurt which was present in the
mind of the accused to enable him to invoke the aid of private defence is
to be ascertained objectively with reference to events and deeds at the
time of the offence and the surrounding circumstances [28].

1. Intention of Rape:  If a person feels that the other person is

committing assault with an intention of rape; the death can be
committed for self-defence. In the case of State of orissa v.
Nirupama Panda [State of orissa v. Nirupama Panda, 1989 CrLJ 621 (Ori)], the victim entered
into the house of accused and tried to rape her. There was a
scuffle between them and the accused lady finally stabbed the
man and he died. She was not held liable because she was acting
in her right of private defence.

● Intention of satisfying unnatural lust:  If a person is

committing assault with an intention of satisfying his unnatural
lust; the other person can exercise his right of private defence to
the extent of causing the death of that person. It has been held in
the case of Indu Kumari Pathak v. S. K. Pathak [Indu Kumari
Pathak v. S. K. Pathak, (1983) 2 DMC 64 (Raj)] that if a wife
refuses to submit to her husband for cohabitation, the husband is
not expected to use force to make the wife to sexual intercourse.
The husband has no right to cause injury to his wife in enforcing
sexual intercourse and wife has the right of private defence to
retaliate the force used on her [Shigni v. State of Haryana, 1969
CrLJ 220].
● Intention of kidnapping or abduction:  If a person feels that
the other person is acting with an intention of kidnapping or
abducting him or any other person, he may use his right to cause
death of kidnapper.
● Intention of wrongful confinement:  If a person feels that the
other person is intending to wrongfully confine him or any other
person and if the person is confined, he will not be able to escape
or take help of public authorities for his release. In this case, he
can exercise his right of private defence to cause death of another
person.
 ● Act of throwing or attempt to throw acid: This provision was not
present in the original provision but observing the increasing rates
of acid attack, this condition was added after recommendations
of Justice J. S. Verma Committee [32] under which a person, in
certain circumstances may exercise his right of private defence to
voluntarily cause harm or death to the assailant.

If a person is in fear that other person is going to throw acid or is

attempting to throw acid and this may cause grievously hurt; He /she can
exercise his/her right of private defence to cause death of that person.
The act of throwing or attempting to throw acid is an offence under
Section 326A and 326B of the Indian Penal Code.

The right of self-defence to cause death and the doctrine of

necessity
The doctrine of necessity states that if an act is an offence, it will not be
considered as one if the following conditions are satisfied [33]:

● The act was done to avoid other harm which could not be avoided
otherwise. If that situation was not avoided, it would have inflicted
upon him or another person’s body or property, inevitable and
irreparable evil.
● The force inflicted was reasonable as per the necessity
● The evil inflicted was proportionate to the evil avoided

As stated in KENNY on Outlines of Criminal  [34], where the man has

inflicted harm upon others person or property for the purpose of saving
himself or others from greater harm, he is saved under this defence.
One person, in private defence can kill any number of aggressors to
protect himself alone. private defence overlaps the doctrine of necessity.
Unlike necessity, the private defence does not. [35]

What is the extent of private defence against body in a situation which is

not mentioned in the seven categories of Section 100? (Section 101)
If there is any situation which is not mentioned in Section 100, the person
cannot exercise his right of private defence against the body to cause
death of any person. He can only exercise the right to the extent of
causing any other harm or injury except death.
In the case of Mahinder Pal,[ Mahinder pal, 1979 CrLJ 584
(SC)] when small mischief was committed in the factory by the workers,
the owner was not justified in doing his act when he shot dead one of the
workers.
When does the right of private defence Commences, and ends? (S.
102)
Section 102 deals with the commencement and continuance of right of
private defence with respect to body only. The person exercising the right
must consider whether the threat to his person is real and immediate or
not.
Commencement:  A person can exercise the right of private defence as
soon as he reasonably apprehends the danger to the body. This may be
sensed when any person attempts to commit an offence or threatens that
he will commit an offence. The person is not expected to wait till the
offence is committed. Even if the person threatens to commit the offence,
it is sufficient for the other person to exercise his right of private defence.
The extent to which the right can be exercised does not depends upon the
actual danger but on the reasonable apprehension of danger. The right to
private defence gives right to defend one self from any reasonable
apprehension of danger. The threat however must give rise to present
and imminent danger and not remote or distant danger [Deonarain v.
State of UP, 1973 scc (Cr) 330].
Continuance:  As long as the fear of danger continues, the person is free
to use his right of private defence.
It was held in the case of Sitaram v. Emperor,  [Sitaram v. Emperor, AIR
1973 SC 473] that a person exercising the right of private defence is
entitled to secure his victory as long as the contest is continued. He is not
obliged to retreat but may continue to defend till he finds himself out of
danger.
End:  When it can be reasonably seen that the danger no longer exists,
the person’s right of private defence ends. He has no such right after that.
If in case he commits any hurt to other after the fear ends, he will not be
immune and will be held liable for his act.
For example, Mr. A threatened Mr. B that he will kill him and moved with
a sword towards Mr. B. Meanwhile, Mr. X, father of Mr. A, came in
between and stopped Mr. A. Mr. A followed his order and started going
back to his home. Now, the apprehension of threat on Mr. B has ended. If
Mr. B attacks Mr. A now, he will not be given shelter under private
defence and will be held liable for his acts.

When can a person exercise his right of private defence against

Property to cause death? (Section 103)
This section postulates that in certain cases, when you have threat to a
property, be it yours or someone else’s or movable or immovable
property, you can exercise the right of private defence to cause death of a
person.
In the case of Jagan Ram v. State, [Jagan Ram v. State, 2014 CrLJ NOC 483] the court said that
whenever any offence is committed on a property, it is immaterial that the
accused is the owner of the property or not. However, they cannot exercise this
right to defend the property of other person if that person has entered into a
free fight.

This act justifies the mentioned acts when they causes reasonable
apprehension of death or grievous harm. If a person is not in possession
of the property, he cannot claim any right of private defence regarding
such property. Right to dispossess or throw out a trespasser is not
available to the true owner if the trespasser is in the lawful possession of
the property at that time.
If a person is appointed to guard the property of his employer, he is
protected under Section 103 if he commits homicide while defending the
property from aggressors. Similarly, a person who is appointed to guard a
public property enjoys the same right

Cases in which the right of private defence can be exercised to the

extent of causing death:

A person cannot exercise his right of private defence against the property
to cause death of any person except in the following cases:

● Robbery:  Robbery, as per section 390 of IPC, can be committed

in two ways. Eventually, robbery is an advanced stage of either
theft or extortion.

Theft is Robbery when at the time of committing theft, the thieves

eventually:

o Causes death, hurt or wrongful restraint

o Attempts to cause death, hurt or wrongful restraint
o Causes fear of death, hurt or wrongful restraint
 o Attempts to cause fear of death, hurt or wrongful restraint

Extortion is robbery when at the time of committing robbery, the person

is put in fear of instant death, hurt or wrongful confinement.

● House-breaking at night:  As per section 446 of IPC, if a person

commits housebreaking after sunset and before sunrise, the other
person has a right of private defence to an extent of causing the
death of the house breaker.
● Mischief by fire: It is explained under section 436 of IPC. If any
person acts to cause wrongful damage to someone’s property, it
comes under mischief. Mischief by fire is considered as the most
aggravated form of mischief.

If a person commits mischief by setting fire on any building, tent or vessel

which is used for Human dwelling; another person has a right to cause
death of that person under right of private defence.

● Theft, mischief or house-trespass with reasonable fear of

death or grievous hurt:  If any offence of theft, mischief or
house-trespass is being committed on someone’s property, a
person generally cannot cause death of the offender. But if the
person is under a reasonable fear that if he will not cause death of
that person, the result will be his death or grievous hurt, he can
cause death of the offender.

It may be noticed in the case of Kanchan v. State, [Kanchan v. State,

1982 CrLJ 1633 (All)] just because mischief was committed by victim and
his companions on the property of the accused, the accused does not
have a right to cause death. There must be reasonable apprehension that
death or grievous hurt may otherwise be the consequence.
In all the above-said situations, although the right of a person can be
extended to causing death of the aggressor, the right cannot be exercised
in excess to what is necessary.

What is the extent of private defence against property in a situation which

is not mentioned in the seven categories of Section 103? (Section 104)
If there is any other threat to the property which is not mentioned above,
the person cannot exercise his right of private defence to cause death to
any person. However, the person can exercise his right of private defence
to cause any harm other than death to the person who is doing wrong to
his property. (Section 104)
Also, in cases where theft, mischief or trespass if it does not cause
reasonable apprehension of death then one cannot cause death of a
person.
When does the right of private defence Commences, continues and ends?
(Section 105)
Under this section, what is important to be noticed is that was there a
reasonable apprehension of danger to the property or not. Once there is
such apprehension of danger, the right is available to the accused
irrespective of the fact that the offence or the attempt for the offence has
actually committed or not.
Commencement:  A person can exercise the right of private defence as
soon as he reasonably senses the danger to the property. For
commencing the right of private defence, reasonable apprehension is
important and not the fact that actual crime has been committed or not.
Continuance:
Theft: A person can exercise the private defence till:

● The offender has not withdrawn from the property, or

● The police assistance is not obtained, or
● The property is not recovered

If the thief has withdrawn or the property has been recovered, the person
has can no longer exercise the right of private defence.
Robbery: A person can exercise his right of private defence as long as:

● The offender causes or attempts to cause death, hurt or wrongful

restraint to any person, or
● The fear of death, hurt or wrongful restraint continuous

Criminal Trespass and Mischief: A person can exercise the right until the
aggressors leave the field. If the trespassers use violence against the
persons resisting the criminal trespass, any hurt made as an exercise of
private defence over the trespassers is justified.
House Breaking by night: A person can exercise the right till the offence
of housebreaking continues.
Ends: As soon as the above conditions stops operating, a person’s right
of private defence cannot be exercised.
But the right of private defence against property is not extended to
intellectual property such as patents, copyrights etc.

What does the Supreme Court says on the right of private defence to
cause death?
The Supreme Court reviewed the law relating to the right of self-defence
extending to cause death and clearly enunciated these:- [43]
 1. It is not a right to take revenge. It is a right to defend.
2. It can be exercised only when the person is unable to get
immediate aid from the State machinery [State of Orissa v. Rabindranath Dalai & another,
(1973) Cri LJ 1686 (Ori)].

3. This right can be extended to protect the body and property of

third party as well.
4. It should not be an act of self-creation [Laxrnan Sahu v, State of
Orissa AIR 1988 SC P. 83 : 1988 Cri LJ 188] but an act of
necessity which causes an impending danger and should not
exceed than what is legitimate and necessary[Puran Singh v. State
of Punjab, 1975 Cri LJ 1479: AIR 1975 SC 1674]. One may cause
such injury as may be necessary to tackle with that danger or
threat” [Kashrniri La! v. State of Punjab, 1996 Cri LJ 4452 : AIR 1997 SC 393].
5. Where the person is exercising the right of self-defence, it is not
possible to calculate the amount of force which he needs to
exercise. The person exercising the right does not need to prove
the existence of a right of private defence beyond reasonable
doubt [James Martin v. State of Kerala (2004) 2 SCC 203].
6. The right of private defence is recognized under the law but within
certain reasonable limits [Gotipulla Venkata Subramanyam v.
State of Andhra Pradesh, AIR 197JSC 1079].
7. Even if the accused does not plead self-defence, it is open to the
Court to consider that such circumstances might exist [Munshi
Ram & others v. Delhi Administration, i968 Cri LJ 806 : AIR 1968
SC 702].
8. The fight of self-defence commences as soon as reasonable
apprehension arises, and continues till such apprehension lasts
[State of Madhya Pradesh v. Ramesh, AIR 2005 SC 1186: 2005 Cri
LJ 6)2.].
9. There is nothing which lays down in absolute terms and in all
situations that the injuries incurred by the accused have to be
explained! [Triloki Nath & others v. State of Uttar Pradesh, AIR
2006 SC 32l]’.
10. Once the reasonable apprehension disappears, the right of
self-defence is not available anymore [Jai Dev v, State of Punjab,
AIR 1963 SC 612: 1963 (1) Cri LJ 495].
11. The plea of reasonable apprehension is a question of fact
which the court finds out through certain facts and circumstances
[Buta Singh v. State of Punjab, AIR 1991 SC 1316: 1991 Cri LJ
1464].
12. It is unrealistic to expect a person under assault to step by
step modulate his defence [Vidya Singh v. State of Madhya Pradesh AIR 1971 SC 1857 : 1971 Cri LJ 1296.].

Right of private defence against reasonable fear of death in case

where there is a risk of harm to innocent person (Section 106)
Where a person can reasonably foresee that there is fear to his life but if
he exercises the right of private defence, any innocent person may get
hurt; he has the right to exercise such right. In case he hurts an innocent
person while exercising his right of private defence; he will not be held
liable for this act.
Section 106 contemplates an assault which reasonably causes
apprehension of death and therefore contemplates exercise of the right at
the risk of harm to innocent person [56].

What are the Exceptions to the rule of private defence? (Section

99)

Act of a public servant or under the direction of a public servant:

A person cannot exercise his right of private defence if the following
conditions are satisfied:

● There was no fear of death or grievous hurt

● The act was done or attempted to be done by a public servant or
under the direction of public servant
● The public servant was acting in good faith
● The public servant was under colour of his office
● It does not matter if the act or direction was justified by law or not

Section 99 specifically says that there is no right of private defence

against an act which does not cause reasonable apprehension of death or
grievous hurt, if done or attempted to be done on the direction of a public
servant acting under good faith under the colour of his office. The
protection extents to acts which are not even justified by law [Kanwar
Singh v. Delhi Administration, AIR 1965 SC 871].
However, there is a difference between acts which are not strictly justified
by law and acts which are wholly illegal. If a public servant acts without
jurisdiction, it cannot be said that he acted in good faith and his act
should be protected even if it is not justified by law. The law does not
protect illegal acts and the acts committed by officers without jurisdiction.
‘Act not justified by law does not cover an act which is wholly illegal and
totally without jurisdiction. Section 99 Applies to acts where jurisdiction is
wrongly applied but not in cases where jurisdiction is absent [Sawal Seth
v. Emperor, AIR 1933 Pat 144].

When a person has time to recourse:

If a person has reasonable time to have recourse to the protection of the
public authorities; he has no right to use its private defence. For example,
if a person is threatened that he will be killed after three days, he has
sufficient time to inform the police. If in case he waits for the person who
threatened him and shot him dead. He cannot say that he was using his
right of private defence.
A per the Supreme Court of India, when a person has time to get
recourse and there is no need to take law in hands, right of private
defence cannot be exercised [Lala Ram v. Hari Ram, (1969) 3 SCC 173].
This does not mean that a person must run away to have recourse of the
public authorities when he is attacked instead of defending himself
[Alingal Kunhinayan, (1905) 28 Mad 454].
In the case of Jai Dev v. state of Punjab,  [Jai Dev v. state of Punjab,
AIR 1963 SC 612] the Supreme court said that “In a civilized society, the
state is assumed to take care of person and properties of Individual. This,
however, does not mean that if a person suddenly faces an assault, he
must run away and protect himself. He is entitled to resist the attack and
defend himself.”
The law of private defence itself states that there is no right of private
defence available unless the situation was so urgent that there was no
time to have recourse to the protection of public authorities. The urgency
of the situation must naturally depend upon several facts and
circumstances. These circumstances may include:

● Immediate danger to person or property that if it is not

immediately protected, would be lost by the time the protection
from public servants is obtained.
● Reasonable apprehension of the danger to person or property
arises out of committed, attempted or threatened crime. The act
was going to affect person and property and justifies the particular
injury inflicted.

When the act of private defence extends to inflicting of more harm than it
is necessary to inflict for the purpose of defence:
The right of private defence is restricted to not inflicting more harm than
necessary for the purpose of defence. To determine the amount of force
which was necessary to be inflicted, the facts and circumstances are
needed to be considered. There is no protection available in case the
harm is inflicted unnecessarily and is much extended than what was
reasonable [Sheo Lachan v. State of UP, 1971 All Cr R 91]. For instance,
if a person is going to slap you, you cannot shoot the person with a gun in
self-defence.
There have been instances where the force inflicted was more than
necessary. Some of them are:

● A person killed old woman found stealing at night [Gokool Bowree,

(1866) 5 WR (Cr) 33]
● A person caught a thief at night and deliberately killed him with a
pick-axe [Durwan Geer, (1866) 5 WR (Cr) 73]
 ● A thief was caught committing housebreaking and was subjected
to gross maltreatment [DhununjaiPoly, (1870) 14 WR (Cr) 68]

The right of private defence arises when an aggressor has struck or a

reasonable apprehension of a grievous hurt arises depending upon the
facts of each case. But such a right in no case extends to the inflicting of
more harm than is necessary to inflict for the purpose of defence [66].

Exception to the exception of right of private defence!

● If the person who uses his right of private defence over a public
servant did not know or had no reason to believe that he is a
public servant; he can exercise his right. For example, Mr. X saw
Mr. A was followed by an unknown person with a gun. Mr. X hit
that unknown person in order to save Mr. A. Later, it is revealed
that the unknown person was Mr. Z, a police officer. Since Mr. Z
was not in his uniform, Mr. X did not know and has no reason to
believe that he is a public servant. Therefore, Mr. X’s right of
private defence was justified.

● If the person who uses his right of private defence against a

person who was acting under the direction of public servant; his
right of private defence cannot be taken if:
o He did not know that the person is acting under the
direction of a public servant
o He has no reason to believe that the person is acting under
the direction of a public servant
o The person does not state that he is working under such
authority
o If the person has the authority in writing and he did not
produce such authority, if demanded

Bonafied Act:  Even if the act of a public servant is not justified by law,
the right of private defence cannot be exercised if he acts bonafied and
under the colour of his office. But in case the officer is acting unlawfully,
he cannot be said to be acting in discharge of his duties.
Knowledge of identity of public officer and his authority:  In order
to establish this condition, it is necessary that the accused must be sure
that the person is a public officer.
In case of Emperor v. Abdul Hamim, policemen raided to the house of
accused at night. The accused was sleeping and was awakened by some
noise and rushed out of the room. The policemen fired at him and he fired
back not knowing who they were. It was held that the accused was under
a mistake of fact with regards to the identity of the officers. This gave him
the right to private defence to save his body and property from
trespassers.
Note:  Even if the accused denies that he has killed the accused, if there
is sufficient evidence to show that the actions of the accused comes under
self-defence, the court cannot deny the benefit of the privilege of private
defence.
BRIEF ENUMERATION OF IMPORTANT CASES:
38. The legal position which has been crystallized from a large number of cases is
that law does not require a citizen, however law-abiding he may be, to behave like a
rank coward on any occasion. This principle has been enunciated in Mahandi v.
Emperor [(1930) 31 Criminal Law Journal 654 (Lahore); Alingal Kunhinayan &
Another v. Emperor Indian Law Reports 28 Madras 454; Ranganadham Perayya, In
re (1957) 1 Andhra Weekly Reports 181.
39. The law clearly spells out that right of private defence is available only when
there is reasonable apprehension of receiving the injury. The law makes it clear that
it is necessary that the extent of right of private defence is that the force used must
bear a reasonable proportion of the injury to be averted, that is the injury inflicted on
the assailant must not be greater than is necessary for the protection of the person
assaulted. A person in fear of his life is not expected to modulate his defence step by
step, but at the same time it should not be totally disproportionate.
40. A Full Bench of the Orissa High Court in State of Orissa v. Rabindranath Dalai &
Another 1973 Crl LJ 1686 (Orissa) (FB) summarized the legal position with respect
to defence of person and property thus: "In a civilized society the defence of person
and property of every member thereof is the responsibility of the State.
Consequently, there is a duty cast on every person faced with apprehension of
imminent danger of his person or property to seek the aid of the machinery provided
by the State but if immediately such aid is not available, he has the right of private
defence.
41. In Laxman Sahu v. State of Orissa 1986 (1) Supp SCC 555 this court observed
that it is needless to point out in this connection that the right of private defence is
available only to one who is suddenly confronted with immediate necessity of
averting an impending danger not of his creation.
42. In Raghavan Achari v. State of Kerala 1993 Supp. (1) SCC 719 this court
observed that "No court expects the citizens not to defend themselves especially
when they have already suffered grievous injuries".
43. In Jagtar Singh v. State of Punjab AIR 1993 SC 970 this court held that "the
accused has taken a specific plea of right of self-defence and it is not necessary that
he should prove it beyond all reasonable doubt. But if the circumstances warrant that
he had a reasonable apprehension that death or grievous hurt was likely to be
caused to him by the deceased or their companions, then if he had acted in the right
of self- defence, he would be doing so lawfully."
44. In Puran Singh & Others v. The State of Punjab (1975) 4 SCC 518 this court
observed that in the following circumstances right of private defence can be
exercised :-
i. There is no sufficient time for recourse to the public authorities ii. There must be a
reasonable apprehension of death or grievous hurt to the person or danger to the
property concerned.

iii. More harm than necessary should not have been caused.
45. In Bhagwan Swaroop v. State of Madhya Pradesh (1992) 2 SCC 406 this court
had held as under:-
"It is established on the record that Ramswaroop was being given lathi blows by the
complainant party and it was at that time that gun-shot was fired by Bhagwan
Swaroop to save his father from further blows. A lathi is capable of causing a simple
as well as a fatal injury. Whether in fact the injuries actually caused were simple or
grievous is of no consequence. It is the scenario of a father being given lathi blows
which has to be kept in mind and we are of the view that in such a situation a son
could reasonably apprehend danger to the life of his father and his firing a gun-shot
at that point of time in defence of his father is justified."

46. The facts of this case are akin to the facts of the instant case.
47. In Kashmiri Lal & Others v. State of Punjab (1996) 10 SCC 471, this court held
that "a person who is unlawfully attacked has every right to counteract and attack
upon his assailant and cause such injury as may be necessary to ward off the
apprehended danger or threat."
48. In James Martin v. State of Kerala (2004) 2 SCC 203, this court again reiterated
the principle that the accused need not prove the existence of the right of private
defence beyond reasonable doubt. It is enough for him to show as in a civil case that
the preponderance of probabilities is in favour of his plea.
49. In Gotipulla Venkatasiva Subbrayanam & Others v. The State of Andhra Pradesh
& Another (1970) 1 SCC 235, this court held that "the right to private defence is a
very valuable right and it has been recognized in all civilized and democratic
societies within certain reasonable limits."
50. In Mahabir Choudhary v. State of Bihar (1996) 5 SCC 107 this court held that
"the High Court erred in holding that the appellants had no right to private defence at
any stage. However, this court upheld the judgment of the sessions court holding
that since the appellants had right to private defence to protect their property, but in
the circumstances of the case, the appellants had exceeded right to private defence.
The court observed that right to private defence cannot be used to kill the wrongdoer
unless the person concerned has a reasonable cause to fear that otherwise death or
grievous hurt might ensue in which case that person would have full measure of right
to private defence including killing".
51. In Munshi Ram & Others v. Delhi Administration (1968) 2 SCR 455, this court
observed that "it is well settled that even if the accused does not plead self defence,
it is open to consider such a plea if the same arises from the material on record. The
burden of establishing that plea is on the accused and that burden can be
discharged by showing preponderance of probabilities in favour of that plea on the
basis of materials available on record.
52. In State of Madhya Pradesh v. Ramesh (2005) 9 SCC 705, this court observed
"every person has a right to defend his own body and the body of another person
against any offence, affecting the human body. The right of self defence commences
as soon as reasonable apprehension arises and it is co-terminus with the duration of
such apprehension. Again, it is defensive and not retributive right and can be
exercised only in those cases where there is no time to have recourse to the
protection of the public authorities."
53. In Triloki Nath & Others v. State of U.P. (2005) 13 SCC 323 the court observed
as under:-
"No decision relied upon by the Appellants lays down a law in absolute terms that in
all situations injuries on the persons of the accused have to be explained. Each case
depends upon the fact situation obtaining therein."

54. In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, the court
observed that "the right of self-defence is a very valuable right, serving a social
purpose and should not be construed narrowly. Situations have to be judged from
the subjective point of view of the accused concerned in the surrounding excitement
and confusion of the moment, confronted with a situation of peril and not by any
microscopic and pedantic scrutiny. In adjudging the question as to whether more
force than was necessary was used in the prevailing circumstances on the spot it
would be inappropriate, as held by this court, to adopt tests by detached objectivity
which would be so natural in a court room, or that which would seem absolutely
necessary to a perfectly cool bystander. The person facing a reasonable
apprehension of threat to himself cannot be expected to modulate his defence step
by step with any arithmetical exactitude of only that much which is required in the
thinking of a man in ordinary times or under normal circumstances."
55. In Jai Dev v. State of Punjab AIR 1963 SC 612 the court held as under:-
"as soon as the cause for the reasonable apprehension has disappeared and the
threat has either been destroyed or has been put to rout, there can be no occasion to
exercise the right of private defence."

56. In order to find out whether right of private defence is available or not, the injuries
received by the accused, the imminence of threat to his safety, the injuries caused
by the accused and the circumstances whether the accused had time to have
recourse to public authorities are all relevant factors to be considered.
57. In Buta Singh v. The State of Punjab (1991) 2 SCC 612, the court noted that a
person who is apprehending death or bodily injury cannot weigh in golden scales in
the spur of moment and in the heat of circumstances, the number of injuries required
to disarm the assailants who were armed with weapons. In moments of excitement
and disturbed mental equilibrium it is often difficult to expect the parties to preserve
composure and use exactly only so much force in retaliation commensurate with the
danger apprehended to him where assault is imminent by use of force, it would be
lawful to repel the force in self-defence and the right of private- defence commences,
as soon as the threat becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered spectacles or microscopes to detect
slight or even marginal overstepping. Due weightage has to be given to, and hyper
technical approach has to be avoided in considering what happens on the spur of the
moment on the spot and keeping in view normal human reaction and conduct, where
self-preservation is the paramount consideration. But, if the fact situation shows that
in the guise of self- preservation, what really has been done is to assault the original
aggressor, even after the cause of reasonable apprehension has disappeared, the
plea of right of private defence can legitimately be negatived. The court dealing with
the plea has to weigh the material to conclude whether the plea is acceptable. It is
essentially, as noted above, a finding of fact."
58. The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognized by the
criminal jurisprudence of all civilized countries. All free, democratic and civilized
countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to

one who is suddenly confronted with the

necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defence. It is
enough if the accused apprehended that such an offence is contemplated and it is
likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension
arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step
by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open
to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence
beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that
unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may
in exercise of self defence inflict any harm even extending to death on his assailant
either when the assault is attempted or directly threatened
Oooooooooooooooooooooooooooooooooooo
Unit- IV Abetment, Conspiracy, Offences against State
 a) Abetment and Criminal Conspiracy
b) Offences against State and Public Tranquility
c) False Evidence and Offences against Public Justice; Offences relating to
Coin and Government Stamps
d) Offences affecting the Public Health, Safety, Convenience, Decency and
Morals
Evidence is information which is used in the court to prove something
which exists or true. Giving false evidence and fabricating false evidence
is an offence under Indian penal Code, 1860.  The provisions of False
evidence and fabricating false evidence are specifically mentioned in
Section 191 and section 192 respectively of the IPC under Chapter XI.

To fabricate means to make up for the purpose of deception whereas

giving false evidence is something the person has given false statement
to divert the verdict of the case.

Definitions:
● Giving false evidence:
Whoever being legally bound by an oath or by an express provision of law
to state the truth, or being bound by law to make a declaration upon any
subject, makes any subject, makes any statement which is false, and
which he either knows or believes to be false or does not believe to be
true, is said to give false evidence.

● Fabricating false evidence:

Whoever cause any circumstances to exist or [makes any false entry in
any book or record, or electronic record or makes any document or
electronic record containing a false statement], intending that such
circumstance, false entry or false statement, may appear in evidence in a
judicial proceeding, or in proceeding taken by law before a public servant
as such, or before an arbitrator, and that such circumstance, false entry
or false statement, so appearing in evidence, may cause any person who
in such proceeding is to form an opinion upon the evidence, to entertain
an erroneous opinion touching any point material to the result of such
proceeding, is said “to fabricate false evidence.”

Object of Chapter XI of IPC:

● To punish those who have given and fabricated false evidence
● To prevent fraud and falsehood
● To ensure the criminals get punishment
● To give justice to the innocent
Difference between Giving false evidence and fabricating false
evidence
Following are the differences of giving false evidence and fabricating false
evidence –

1. In case of false evidence, general intention is required whereas in

Fabricating false evidence, particular intention is necessary. Intention is
the essence of both the offence. In short it must be intentionally given.

2. In false evidence, the statement which are false not necessary that it
should be material. On the other hand, in fabricating false evidence
statements must be on material point only.

3. The offence of giving false evidence is committed by the person who is

legally bound by an oath to the state the truth whereas its opposite in the
fabricating false evidence i.e. the offence is committed by a person who is
not legally bound to take an oath to state the truth.

4. In Giving false evidence, the question of effect of the evidence on the

officer before whom the evidence is given is of no consequences while this
effect of the evidence is important in fabricating false evidence.

5. In giving false evidence, it is necessary that there should be a

proceeding of judicial or non-judicial being conducted whereas in
fabricating false evidence, it is not necessary of judicial or non-judicial
proceeding because it is enough that there is reasonable prospect of the
proceeding.

Important Provisions:
Section 191: Giving false evidence

It is an offence if –

● The person is legally bound by the oath to state truth or to make

declaration
● He has given false statement- it is not necessary that the false
evidence should be concerning a question material to the decision of
the case; it is sufficient if the false evidence does not bear directly
 on material issue in the case being relative to incidental that would
be a matter to be taken into consideration in fixing the sentence.
● The false statements which he has been giving he must know that
they are false and not true.
Abatement of giving false evidence- the person who instigate or induce
other person to make false statement, then he will not be guilty of giving
false evidence but he will be guilty of abatement of that offence.

Section 192: Fabricating false evidence

It is an offence if-

● It causes any circumstance to exist, or makes any false entry in

book
● Makes any document containing false statement
● Above acts done intentionally by the person
● There is fabrication of a material point
● Forming of erroneous opinion, there could be no fabrication if on the
basis of the fabrication no erroneous opinion could be formed
touching any point material to the result of proceeding.
Section 193: Punishment for false evidence or fabricates false
evidence

● Any person intentionally gives false evidence or fabricates false

evidence for being sued in the judicial proceeding then the
punishment will be

● Imprisonment which may extend to 7 years and

● Fine
● Any person either gives false evidence or fabricates false evidence
in all other cases, then the punishment will be

● Imprisonment which may extend to 3 years and

● Fine
This offence in non- cognizable, bailable, non-compoundable and triable
by the Magistrate of first class.

Section 194: Giving or fabricating false evidence with intention to

procure conviction
 ● Any person gives or fabricates false evidence with an intention and
reason to believe that it may cause person to be convicted for
capital punishment, the he shall be punished-

●Rigorous imprisonment which may extend to ten years and

●Fine
This section provides for more severe punishment if an innocent person is
convicted and executed in consequences of such false evidence.

Section 195-A: Threatening any person to give false evidence

● If any person threatens or threat to cause injury to the person, his

property, reputation with an intention to induce that person to give
false evidence the such person shall be punished-
●
●
● Imprisonment for a term which may extend to seven years or
● Fine or
● Both
Case laws:
● Abdul Majid v. Krishna Lal Nag Calcutta High Court. Date: 13 Apr, 1893
In this case, it was held by the court that the false evidence must be
given in a proceeding in which the accused was bound by law to speak
the truth. If the court has no authority to administer an oath the
proceeding will be coram non-judice and prosecution for false evidence
cannot stand. Similar will be the case where a court is acting beyond the
jurisdiction.

● Gobind Chandra Seal v. Queen Empress 1892 cal

It was held by the court that when in a court a person binds himself on
oath to state the truth he cannot say that as he was not bound under law
to go into the witness box or make an affidavit, a false statement which
he had made after the oath is not covered by this section. The offence
may be committed although the person giving evidence has neither been
sworn nor affirmed.

● Baban Singh v. Jagdish Singh 1966 SC

It was held by the Supreme Court that where a false affidavit is sworn by
a witness in a proceeding before a court, the offence would fall under
sections 191 and 192. It is the offence of giving false evidence or of
fabricating false evidence for the purpose of being used in a judicial
proceeding.
Conclusion:
It can be concluded that there is a difference between these two terms.
The intention is important in both terms i.e. general intention in giving
false evidence and material or particular intention in fabricating intention.
The person who will threaten or induce to give or fabricate false evidence
will also liable for the punishment. It is to be noted that the person who is
giving false evidence must have knowledge that he is giving a false
statement or believe it to be false. The person who will commit an offence
of giving and fabricating an evidence will be punished according to the
punishment period mentioned in the IPC, 1860.

00000000000000000000000000000000000000

268. Public nuisance.

268. Public nuisance.—A person is guilty of a public nuisance who does any act or
is guilty of an illegal omission, which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy property in
the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience
or advantage.

269. Negligent act likely to spread infection of

disease dangerous to life.
269. Negligent act likely to spread infection of disease dangerous to life.—
Whoever unlawfully or negligently does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any disease dangerous to
life, shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine, or with both.

270. Malignant act likely to spread infection of

disease dangerous to life.
270. Malignant act likely to spread infection of disease dangerous to life.—
Whoever malignantly does any act which is, and which he knows or has reason to
believe to be, likely to spread the infection of any disease dangerous to life, shall be
punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.
271. Disobedience to quarantine rule.
271. Disobedience to quarantine rule.—Whoever knowingly disobeys any rule
made and promulgated [i][by the [ii][* * *] Government [iii][* * *]] for putting any
vessel into a state of quarantine, or for regulating the intercourse of vessels in a
state of quarantine with the shore or with other vessels, or for regulating the
intercourse between places where an infectious disease prevails and other places,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine, or with both.

272. Adulteration of food or drink intended for

sale.
272. Adulteration of food or drink intended for sale.—Whoever adulterates any
article of food or drink, so as to make such article noxious as food or drink,
intending to sell such article as food or drink, or knowing it to be likely that the
same will be sold as food or drink, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
STATE AMENDMENTS
Orissa.—In its application to the State of Orissa, in Sections 272, 273, 274, 275 and
276, for the words “shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both”, the following shall be substituted, namely:—
“shall be punished with imprisonment for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment which is less than imprisonment
for life.” [Vide Orissa Act 3 of 1999, S. 2.]
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Sections 272,
273, 274, 275 and 276 for the words “shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both”, the following shall be substituted,
namely—
“shall be punished with imprisonment for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment which is less than imprisonment
for life.” [Vide U.P. Act 47 of 1975.]
West Bengal.—In its application to the State of West Bengal, in Sections 272, 273,
274, 275 and 276, for the words “of either description for a term which may extend
to six months, or with fine which may extend to one thousand rupees, or with both”,
the words “for life with or without fine:
Provided that the Court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment which is less than imprisonment
for life”, shall be substituted. [Vide West Bengal Act 42 of 1973.]
273. Sale of noxious food or drink.
273. Sale of noxious food or drink.—Whoever sells, or offers or exposes for sale,
as food or drink, any article which has been rendered or has become noxious, or is
in a state unfit for food or drink, knowing or having reason to believe that the same
is noxious as food or drink, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

274. Adulteration of drugs.

274. Adulteration of drugs.—Whoever adulterates any drug or medical
preparation in such a manner as to lessen the efficacy or change the operation of
such drug or medical preparation, or to make it noxious, intending that it shall be
sold or used for, or knowing it to be likely that it will be sold or used for, any
medicinal purpose, as if it had not undergone such adulteration, shall be punished
with imprisonment of either description for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with both.

275. Sale of adulterated drugs.

275. Sale of adulterated drugs.—Whoever, knowing any drug or medical
preparation to have been adulterated in such a manner as to lessen its efficacy, to
change its operation, or to render it noxious, sells the same, or offers or exposes it
for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or
causes it to be used for medicinal purposes by any person not knowing of the
adulteration, shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to one thousand
rupees, or with both.

276. Sale of drug as a different drug or

preparation.
276. Sale of drug as a different drug or preparation.—Whoever knowingly sells,
or offers or exposes for sale, or issues from a dispensary for medicinal purposes,
any drug or medical preparation, as a different drug or medical preparation, shall be
punished with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.

277. Fouling water of public spring or reservoir.

277. Fouling water of public spring or reservoir.—Whoever voluntarily corrupts
or fouls the water of any public spring or reservoir, so as to render it less fit for the
purpose for which it is ordinarily used, shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine which may
extend to five hundred rupees, or with both.

278. Making atmosphere noxious to health.

278. Making atmosphere noxious to health.—Whoever voluntarily vitiates the
atmosphere in any place so as to make it noxious to the health of persons in general
dwelling or carrying on business in the neighbourhood or passing along a public way,
shall be punished with fine which may extend to five hundred rupees.

279. Rash driving or riding on a public way.

279. Rash driving or riding on a public way.—Whoever drives any vehicle, or
rides, on any public way in a manner so rash or negligent as to endanger human
life, or to be likely to cause hurt or injury to any other person, shall be punished
with imprisonment of either description for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with both.

280. Rash navigation of vessel.

280. Rash navigation of vessel.—Whoever navigates any vessel in a manner so
rash or negligent as to endanger human life, or to be likely to cause hurt or injury to
any other person, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

281. Exhibition of false light, mark or buoy.

281. Exhibition of false light, mark or buoy.—Whoever exhibits any false light,
mark or buoy, intending or knowing it to be likely that such exhibition will mislead
any navigator, shall be punished with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both.

282. Conveying person by water for hire in

unsafe or overloaded vessel.
282. Conveying person by water for hire in unsafe or overloaded vessel.—
Whoever knowingly or negligently conveys, or causes to be conveyed for hire, any
person by water in any vessel, when that vessel is in such a state or so loaded as to
endanger the life of that person, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
283. Danger or obstruction in public way or line of
navigation.
283. Danger or obstruction in public way or line of navigation.—Whoever, by
doing any act, or by omitting to take order with any property in his possession or
under his charge, causes danger, obstruction or injury to any person in any public
way or public line of navigation, shall be punished with fine which may extend to two
hundred rupees.

284. Negligent conduct with respect to poisonous

substance.
284. Negligent conduct with respect to poisonous substance.—Whoever does,
with any poisonous substance, any act in a manner so rash or negligent as to
endanger human life, or to be likely to cause hurt or injury to any person,
or knowingly or negligently omits to take such order with any poisonous substance
in his possession as is sufficient to guard against any probable danger to human life
from such poisonous substance,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or
with both.

285. Negligent conduct with respect to fire or

combustible matter.
285. Negligent conduct with respect to fire or combustible matter.—Whoever
does, with fire or any combustible matter, any act so rashly or negligently as to
endanger human life, or to be likely to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order with any fire or any combustible
matter in his possession as is sufficient to guard against any probable danger to
human life from such fire or combustible matter,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or
with both.

286. Negligent conduct with respect to explosive

substance.
286. Negligent conduct with respect to explosive substance.—Whoever does,
with any explosive substance, any act so rashly or negligently as to endanger
human life, or to be likely to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order with any explosive substance in
his possession as is sufficient to guard against any probable danger to human life
from that substance,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or
with both.

287. Negligent conduct with respect to

machinery.
287. Negligent conduct with respect to machinery.—Whoever does, with any
machinery, any act so rashly or negligently as to endanger human life or to be likely
to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order with any machinery in his
possession or under his care as is sufficient to guard against any probable danger to
human life from such machinery,
shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or
with both.

288. Negligent conduct with respect to pulling

down or repairing buildings.
288. Negligent conduct with respect to pulling down or repairing buildings.
—Whoever, in pulling down or repairing any building, knowingly or negligently omits
to take such order with that building as is sufficient to guard against any probable
danger to human life from the fall of that building, or of any part thereof, shall be
punished with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.

289. Negligent conduct with respect to animal.

289. Negligent conduct with respect to animal.—Whoever knowingly or
negligently omits to take such order with any animal in his possession as is sufficient
to guard against any probable danger to human life, or any probable danger of
grievous hurt from such animal, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
STATE AMENDMENTS
Himachal Pradesh.—In its application to the State of Himachal Pradesh, the
following section shall be added, namely:—
“289-A. Feeding of Monkeys in public place.—Whoever throws eatables in public
place, other than those notified by the State Government in the Official Gazette, and
thereby entice monkeys to assemble at such place for taking eatables which result in
causing danger to human life or to be likely to cause injury or annoyance to the
public or to the people in general or to cause hindrance in smooth running of
vehicular traffic, shall be punished with imprisonment of either description for a term
which may extend to one month or with fine which may extend to one thousand
rupees or with both.”. [Vide H.P. Act 15 of 2006, S. 2, w.e.f. 29-6-2006]

290. Punishment for public nuisance in cases not

otherwise provided for.
290. Punishment for public nuisance in cases not otherwise provided for.—
Whoever commits a public nuisance in any case not otherwise punishable by this
Code, shall be punished with fine which may extend to two hundred rupees.

291. Continuance of nuisance after injunction to

discontinue.
291. Continuance of nuisance after injunction to discontinue.—Whoever
repeats or continues a public nuisance, having been enjoined by any public servant
who has lawful authority to issue such injunction not to repeat or continue such
nuisance, shall be punished with simple imprisonment for a term which may extend
to six months, or with fine, or with both.

292. Sale, etc., of obscene books, etc.

[iv][292. Sale, etc., of obscene books, etc.—[v][(1) For the purposes of sub-
section (2), book, pamphlet, paper, writing, drawing, painting, representation, figure
or any other object, shall be deemed to be obscene if it is lascivious or appeals to
the prurient interest or if its effect, or (where it comprises two or more distinct
items) the effect of any one of its items, is, if taken as a whole, such as to tend to
deprave and corrupt person who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.]
[vi][(2)] Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation, or for purposes of sale, hire, distribution, public exhibition or circulation,
makes, produces or has in his possession any obscene book, pamphlet, paper,
drawing, painting, representation or figure or any other obscene object whatsoever,
or
(b) imports, exports or conveys any obscene object for any of the purposes
aforesaid, or knowing or having reason to believe that such object will be sold, let to
hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he
knows or has reason to believe that any such obscene objects are for any of the
purposes aforesaid, made, produced, purchased, kept, imported, exported,
conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this section, or
that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section,
shall be punished [vii][on first conviction with imprisonment of either description for
a term which may extend to two years, and with fine which may extend to two
thousand rupees, and, in the event of a second or subsequent conviction, with
imprisonment of either description for a term which may extend to five years, and
also with fine which may extend to five thousand rupees].
[viii][Exception.—This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure—
(i) the publication of which is proved to be justified as being for the public good on
the ground that such book, pamphlet, paper, writing, drawing, painting,
representation or figure is in the interest of science, literature, art or learning or
other objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or
in—
(i) any ancient monument within the meaning of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for
any religious purpose.]]
STATE AMENDMENTS
Orissa.—Amended by Orissa Act 13 of 1962 [same as that of Tamil Nadu].
Tamil Nadu.—In its application to the whole of the State of Tamil Nadu, in Section
292 the words “shall be punished with imprisonment of either description for a term
which may extend to three months or with fine or with both” substitute the
following, namely,—
“shall be punished with imprisonment of either description for a term which may
extend to two years or with fine or with both:
Provided that for a second or any subsequent offence under this section, he shall be
punished with imprisonment of either description for a term which shall not be less
than six months and not more than two years and with fine.” [Vide Tamil Nadu Act
25 of 1960.]
SECTION 292-A
Orissa.—Amended by Orissa Act 13 of 1962 [same as that of Tamil Nadu as
originally inserted before amendment by Tamil Nadu Act 13 of 1982].
Tamil Nadu.—In its application to the whole of the State of Tamil Nadu, after
Section 292 insert the following new section, namely,—
“292-A.—Printing, etc. of grossly indecent or scurrilous matter or matter intended
for blackmail.—Whoever,—
(a) prints or causes to be printed in any newspaper, periodical or circular, or exhibits
or causes to be exhibited, to public view or distributes or causes to be distributed or
in any manner puts into circulation any picture or any printed or written document
which is grossly indecent, or is scurrilous or intended for blackmail, or
(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has in his
possession, any picture or any printed or written document which is grossly indecent
or is scurrilous or intended for blackmail, or
(c) conveys any picture or any printed or written document which is grossly indecent
or is scurrilous or intended for blackmail knowing or having reason to believe that
such picture or document will be printed, sold, let for hire, distributed or publicly
exhibited or in manner put into circulation, or
(d) takes part in, or receives profits from, any business in the course of which he
knows or has reason to believe that any such newspaper, periodical, circular, picture
or other printed or written document is printed, exhibited, distributed, circulated,
sold, let for hire, made, produced, kept, conveyed or purchased, or
(e) advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this section, or
that any such newspaper, periodical, circular, picture or other printed or written
document which is grossly indecent or is scurrilous or intended for blackmail can be
procured from or through any person, or
(f) offers or attempts to do any act which is an offence under this section,
[ix][shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both:]
Provided that for a second or any subsequent offence under this section, he shall be
punished with imprisonment of either description for a term which shall not be less
than six months [x][and not more than two years].
Explanation I.—For the purposes of this section, the word ‘scurrilous’ shall be
deemed to include any matter which is likely to be injurious to morality or is
calculated to injure any person:
Provided that it is not scurrilous to express in good faith anything whatever
respecting the conduct of—
(i) a public servant in the discharge of his public functions or respecting his
character so far as his character appears in that conduct and no further; or
(ii) any person touching any public question, and respecting his character, so far as
his character appears in that conduct and no further.
Explanation II.—In deciding whether any person has committed an offence under
this section, the court shall have regard, inter alia, to the following considerations—
(a) the general character of the person charged, and where relevant, the nature of
his business;
(b) the general character and dominant effect of the matter alleged to be grossly
indecent or scurrilous or intended for blackmail;
(c) any evidence offered or called by or on behalf of the accused person as to his
intention in committing any of the acts specified in this section.” [Vide Tamil Nadu
Act 25 of 1960, S. 3, dt. 9-11-1960.]
293. Sale, etc., of obscene objects to young
person.
[xi][293. Sale, etc., of obscene objects to young person.—Whoever sells, lets
to hire, distributes, exhibits or circulates to any person under the age of twenty
years any such obscene object as is referred to in the last preceding section, or
offers or attempts so to do, shall be punished [xii][on first conviction with
imprisonment of either description for a term which may extend to three years, and
with fine which may extend to two thousand rupees, and, in the event of a second or
subsequent conviction, with imprisonment of either description for a term which may
extend to seven years, and also with fine which may extend to five thousand
rupees].]
STATE AMENDMENTS
Orissa.—Amended by Orissa Act 13 of 1962 [same as that of Tamil Nadu].
Tamil Nadu.—In its application to the whole of the State of Tamil Nadu, in Section
293—
(a) for the words “any such obscene object as is referred to in the last preceding
section” substitute the words, figures and letter, “any such obscene object as is
referred to in Section 292 or any such newspaper, periodical, circular, picture or
other printed or written document as is referred to in Section 292-A”;
(b) for the words “which may extend to six months” substitute the words “which
may extend to three years”;
(c) in the marginal note, after the words “obscene objects” insert the words “and
grossly indecent or scurrilous matter intended for blackmail”. [Vide by Tamil Nadu
Act 25 of 1960.]

294. Obscene acts and songs.

[xiii][294. Obscene acts and songs.—Whoever, to the annoyance of others,—
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any public
place,
shall be punished with imprisonment of either description for a term which may
extend to three months, or with fine, or with both.]

294-A. Keeping lottery office.

[xiv][294-A. Keeping lottery office.—Whoever keeps any office or place for the
purpose of drawing any lottery [xv][not being [xvi][a State lottery] or a lottery
authorised by the State Government], shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine, or with both.
And whoever publishes any proposal to pay any sum, or to deliver any goods, or to
do or forbear from doing anything for the benefit of any person, on any event or
contingency relative or applicable to the drawing of any ticket, lot, number or figure
in any such lottery shall be punished with fine which may extend to one thousand
rupees.]