ACCIDENT & MISFORTUNE

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.
Illustration:
A is at work with a hatcher; the head flies of and kills a man who is
standing by. Here, if there was no want of proper caution on the part
of A, his act is excusable and no an offence.
An accident or misfortune will operate as an exonerating factor, if it is
shown that:
First, the act was a mere accident or misfortune;
Secondly, the act was not accompanied by any criminal intention or
knowledge;
Thirdly, it was an outcome of lawful act done in a lawful manner by
lawful means, and
Fourthly, it was done with proper care and caution.
ACCIDENT OR MISFORTUNE
The word ‘accident’ is derived from the Latin word accidere,
signifying ‘fall upon, befall, happen, chance’.
The meaning of the term ‘accident’ used in Section 80, an essential
requirement is that the happening must be one to which human fault
does not contribute.
The term ‘misfortune’ means the same thing as an accident plus that it
was as unwelcome as it was unexpected.
It is only a accident with attendant evil consequences.
The different between the two lies in the fact that an accident involves
only injury to another, while misfortune causes injury as much to the
author as to another unconnected with the act.
Accident and misfortune, thus, means not just the happening of the
unexpected or unintended event, but it also means that such unexpected
or unintended act resulted in injury to another.
ABSENCE OF CRIMINAL INTENTION OR KNOWLEDGE
For the application of this section, it is essential to establish that the act
was done without any ‘criminal intention or knowledge’. In other
words, it must be without mens rea or guilty mind.
Injuries caused due to accidents in games and sports are covered by this
section.
In Tunda v. Rex, dealt with a case where two friends who were fond of
wresting participated in a wrestling match. One of them sustained
injuries which resulted in his death. The other person was charged
under Section 304A IPC. The High Court held that when both agreed
to wrestle with each other, there was an implied consent on the part of
each to suffer accidental injuries. In the absence of any proof of foul
play, it was held that the act was accidental and unintentional, and the
case fell within Sections 80 and 87, IPC.

A Lawful Act in a Lawful Manner by Lawful Means

If a blow is aimed at an individual unlawfully and it strikes another and
kills him, the accused cannot be protected under Section 80.
Where a mother was angry with her child and took a small iron bar
used as a poker and threw it at him which accidentally hit another
child who had entered the room and as a consequence the child died,
the court held that the woman was guilty, although she had no
intention of killing the child, as her act was an improper mode of
correcting her child.

Proper Care and Caution

One of the primordial requirements of Section 80 is that the act must
have been done ‘with proper care and caution’ and the amount of care
and circumspection taken by an accused must be one taken by a prudent
and reasonable man in the circumstances of a particular case.
In Sita Ram v. State of Rajasthan, 1998, the accused was digging the
earth with a spade. The deceased came to collect the mud. The spade
hit the deceased on the head and he succumbed to the injuries. The
accused pleaded that it was an accident. The Rajasthan High Court held
that the accused was aware that other workers would come and pick up
the mud. The accused did not take proper care and caution and acted
negligently. He was convicted under Section 304A, IPC.
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.
Section 82 and 83 IPC, confer immunity from criminal liability on
child offenders. This immunity is based on the principle of juvenile
justice. The constitutional basis for juvenile justice can be derived from
Articles 15 (3) and 39(e) and (f) of the Constitution of India. Article
15(3) provides that ‘Nothing in this article shall prevent the state from
making any provision for women and children’. Article 39 forms part
of the Directive Principles of the State Policy. Clause (e) of Article 39
provides, inter alia, that the tender age of children is not based. Clause
(f) stipulates that children are to be given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity
and that youth be protected against exploitation and against moral and
material abandonment.
Another objection is that no individuals are equal in mental
development. So why a fixed age of 7 years.
It is arbitrary but it is difficult practically to fix subjective maturity
criteria for each individual.
1. Act of Child under Seven Years of Age
Section 82 presumes that a child below seven years is doli incapax, i.e.,
he is incapable of committing a crime and cannot be guilty of any
offence.
It presumes that he cannot distinguish ‘right’ from ‘wrong’.
This presumption is conclusive. It cannot be rebutted by addicting
evidence that the child had the capacity of understanding the
consequences of his act.
Section 82 totally absolves a child below seven years of age from
criminal liability.
2. Act of a Chid above Seven but Below 12 years of Age
Section 83 presumes that a chid above 7 but below 12 years of age is
doli capax, i.e., capable of committing a crime depending upon his
maturity of understanding. But this presumption is rebuttable. It can be
rebutted by proof of ‘mischievous discretion’ of the child.
The prosecution is required to prove beyond reasonable doubt that the
chid caused an actus reus with mens rea that he knew that his conduct
was not merely mischievous but ‘wrong’.
The question relevant for determining his liability, therefore, is not one
of his age but of the requisite degree of his maturity of understanding
at the time of commission of a crime.
Even if the accused is past the age of 12, the question of his age does
not become totally irrelevant. The question of his youth and maturity
of understanding will be relevant in the context of the sentence to be
passed against him in the event of his conviction.
The treatment of all juveniles, i.e., persons up to the age of 18 is now
governed by the Juvenile Justice (Care and Protection of Children) Act,
2015 (Juvenile Justice Act).
However, a combined reading of Sections 82 and 83, which
respectively confer immunity from criminal liability to a child ‘under
seven’ and ‘above seven’, reveals that criminal liability of an infant of
‘seven’ years is left out.
Such an infant ‘should be dealt under Section 82 rather than under
Section 83’ of the Code.
Defence of Necessity
Section 81. Act likely to cause harm, but done without criminal
intent, and to prevent other harm - Nothing is an offence merely by
reason of its being done with the knowledge that it is likely to cause
harm, if it 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.

Explanation – It is question of fact in such a case whether the harm to

be prevented or avoided was of such a nature and so imminent as to
justify or excuse the risk of doing the act with the knowledge that
it was likely to cause harm.
Illustrations:

a) A, the captain of a steam vessel, suddenly and without any fault

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

Section 81, IPC, embodies the principle that where the accused
chooses lesser evil, in order to avert the bigger, then he is immune.
The genesis of this principle emanates from two maxims: quod
neessitas non habet leegem (necessity knows to law) and necessitas
vincit legem (necessity overcomes the law).
It is pertinent to note that although Section 81 does not specifically
refer to ‘greater evil’ or ‘lesser evil’, it in effect deals with the case of
‘lesser evil’.
Mens rea
Section 80 and 81 are analogous provisions, the former dealing with
accidents and the latter with inevitable accidents.
Section 80 stipulates the absence of criminal intention as well as
criminal knowledge. But Section 81 stipulates the absence of criminal
intention alone.
Basic Principles:-
1. The defence of necessarily can be invoke only when there is
emergent situation which is bound to cause or which is certain to
cause some loss to human body or to property.
2. That emergent situation passes two options to the accused:-
A. Either to do the act to avoid the harm or
B. Not to do the act, and let the harm take place. Where only one
option is there, then he can’t take this defence.
3. The option which the accused has taken was causing lessor harm
at the cost of preventing greater harm. i.e. Principal of
proportionality.
EMPEROR V. DHANI DARGI 91868) BOMBAY—
Fact—The accused used to manufacture ‘Tadi’ (homemade liquor) and
keep it in a pot. A thief used to come and steel those Tadi pots. Just to
prevent that & Catch him, he mixed poison in it. Thief came, stole and
sold the liquor to someone who consumed it and died.
Accused was prosecuted for death. He took the plea of Section 81.
The defence is not available as, the harm caused is greater than the harm
to be avoided, moreover this was not the only means to avoid it as such
the person was not acting in good faith.
4. In order to ascertain whether it is the lessor or the greater
harm following guidelines are laid.
• If the harm prevented is related to human life, and is the harm
caused is related to property. Then harm related to human life will be
taken as greater harm in comparison to harm related to property.
• When the harm prevented is related to property & the harm
caused is to human life then, harm to human life shall be taken as
greater harm, in comparison to harm to the property.
• When harm relating to human life is prevented, and harm
caused is also related to human life, the comparison between two has
to be made on equal footing.
Illustration- A doctor performing an operation finds that the
patient requires rare blood group ‘O negative’ he realizes that if
the blood is not given the patient may die. He finds that an
attendant has ‘O negative’ blood group. He forcibly takes the blood
of the patient survives. Doctor is liable, and cannot claim protection
because every person is sovereign of anatomy of his body.
• So when it is taken without his consent, it is violation of his
sovereignty. It amounts to violation of basic human rights of a
person. The doctor can only persuade or advise him.
• If it is taken to be justified as necessity, it will have very
dangerous implications. i.e. it will confer a license on a doctor to
forcibly take the blood of other persons and there is every fear of its
misuse by the doctors.
• When balance is between loss & harm to property, that is harm
caused and harm prevented are both related to property, they are to
be taken on equal footing & a fair comparison is to be made.
5. The harm prevented must be:
Certain
Definite: mere suspicion or possibility of harm is not sufficient.
Example – ‘A’ is trying to pass through forest area. Where wild
animals are there, ‘B’ stopped him telling that, wild animals are
there. ‘B’ takes out a revolver & tell ‘A’ to go back will ‘B’ is
entitled to take the defence of necessity?
‘No’, the harm to be prevented was not definite or certain, it is
violation of ‘A’s fundamental right.
6. The harm could not have been prevented by any other means,
except by causing the harm which the accused caused.
7. The person must be acting without any criminal intention in
causing that harm. He must not have any ulterior motive or design of
criminal venture.
8. The person in causing that harm, must be acting in good faith.
Or the act done with due care & caution which an ordinary prudent
person would take in similar circumstances.
Preventing or Avoiding Other Harm
In order to attract Section 81, it is necessary to show that the act
complained of was done in good faith in order to prevent or avoid
greater harm to the person or property of others.
In Gopal Naidu v. Emperor, 1923. In this case, a drunken man carrying
a revolver in his hand was disarmed and put under restraint by police
officers, though the offence of public nuisance under Section 290 was
a non-cognizable offence without a warrant. Though the police officers
were prima facie guilty of the offence of wrongful confinement, it was
held that they could plead justification under this section.
The person or property to be protected may be the person or property
of the accused himself or of others. The word ‘harm’ in this section
means physical injury.
In Bishambhar v. Roomal, 1951, wherein the complainant, who
misbehaved with a SC girl and who agreed in writing to abide by the
decision of the Panchayat, was taken round the village with blackened
face and was given a shoe-beating, the Allahabad High Court ruled that
members of the Panchayat were not guilty for their acts alleged
contrary to Sections 323 and 506 of the IPC as they acted ‘without
any criminal intention’, to save the complainant from serious
consequences of his own misbehaviour.
Necessity as a Reason for Homicide
The usual view is that necessity is no defence to a charge of murder.
But, the question becomes much more difficult in case of emergency.
Killing a person in self defence may appear to be an example of
necessity. While self defence may overlap necessity, the two are not
the same.
Private defence operates only against aggressors. Generally, the
aggressors are wrongdoers, while the persons against whom action is
taken by necessity, may not be aggressors or wrongdoers.
Unlike necessity, private defence involves no balancing of values.
R v Dudley and Stephens, 1884, the crew of a Yacht, ‘Mignonette’,
were cast away in a storm and were compelled to put into an open boat,
which had no water or food. On the twentieth day, having had nothing
to eat for eight days, and being 1000 miles away from land, two of the
crew (Dudley and Stephens) agreed that the cabin boy, who was likely
to die first, should be killed to feed themselves upon his body; and one
of them carried out the plan. The men ate his flesh and drank his blood
for four days. They were then rescued by a passing vessel and were
subsequently charged with murder.
The question was considered by a divisional court of five judges, which
held that the act was murder and awarded them the sentence of death.
However, their death sentence was commuted by the Crown to a six
months’ imprisonment.
The principles that can be deducted from the Dubley and Stephens
are:
1. self-preservation is not an absolute necessity;
2. no person has a right to take another’s life to preserve his own, and
3. there is no necessity that justifies homicide.
DOCTRINE OF SELF-PRESERVATION –
It may be noted that a person dying of starvation cannot commit theft
of food, and plea that he did so to avoid another harm, viz., his own
death, because he intentionally committed the offence of theft, and
under Section 81, the act should have been done without any criminal
intention. A person who steals bread cannot exempt himself (under
Section 81) from liability on the plea that although he took bread,
thereby injuring the baker, he took it for the purpose of avoiding other
harm, e.g., starvation to himself and his family. As he intends to take
and does take by unlawful means, causing thereby wrongful gain to
himself and wrongful loss to the baker, he is guilty of theft. His case is
exclude from the protection afforded by Section 81 by reason of the
criminal intention.