ACCIDENT

Course Title: Law of Crimes - I

Course Code: IL-C-303

Central University of Kashmir

Department of Law,
School of Legal Studies

Prepared by: Submitted to:

Sujeet Kumar Dr Hilal Ahmad Najar
B.A.LL.B 3rd Sem Assistant Professor
2007CUKmr35

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 Table of Contents

ACCIDENT AND CRIMINAL LIABILITY........................................................................................3

ESSENTIAL INGREDIENTS...............................................................................................................3
MEANING............................................................................................................................................3
LAWFUL ACT DONE IN LAWFUL MANNER BY LAWFUL MEANS..........................................4
ACCIDENT IN UNLAWFUL ACTS....................................................................................................5
ACT DONE WITH PROPER CARE AND CAUTION........................................................................6
ACT LIKELY TO CAUSE HARM, BUT DONE WITHOUT CRIMINAL INTENTION...................8
INGRIDENTS.......................................................................................................................................9
ACT DONE TO PREVENT HARM TO PERSON OR PROPERTY.................................................10
CONCLUSION...................................................................................................................................11
LIST OF REFERENCES.....................................................................................................................12

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ACCIDENT AND CRIMINAL LIABILITY
Section 80 deals with 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.1
Illustration: A is at work with a hatchet, 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.2
ESSENTIAL INGREDIENTS:
Indian law on accident is contained in section 80 of the I.P.C. Its ingredients are
as follow:
 The act must be an accident or misfortune.
 The act must not be done with any criminal intention or knowledge.
 The accident must be the outcome of a lawful act done in lawful manner
by lawful means.
 The act must have been done with proper care and caution.
MEANING:
Section 80 of the Indian penal code is based on the principle that no act is
considered as criminal act unless the actor did it with criminal intent. To
constitute a crime, intent and the act of the wrong doer must both concur. As the
object of criminal law is to punish only serious infraction of rule of society, it
follows that criminal law cannot punish a man for his mistake or misfortune.
Accident does not mean a happening by chance but such happening must be
unintentional and unexpected. It means an undesired happening out of the
ordinary course which no man of ordinary prudence could anticipate or provide
against. Stephen observes: -
An unexpected is said to be accident when the act by which it is caused is not
done with intention of causing it and when its occurrence as a consequence of
such act is not so probable that a person of ordinary prudence ought under the
circumstances in which it is done, to take reasonable precaution against it. Both
the words accident and misfortune imply injury to another. Accident involve
injury to another; misfortune implies as much injury to the author as to another
unconnected with the act. For example, where two men A and B went to the
1
The Indian Penal Code, 1860, (Act 45 of 1860), s. 80.
2
Ibid.

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jungle to shot wild rats, and they took their positions and laid bait for the game.
After a while some rustle was heard and A believing it to be wild rat, fired in
that direction. The shot caused B’s death. A will be protected under this section
because death was caused by accident. In this case the gun with which the
accused had fired was an unlicensed gun and it was observed that the use of
unlicensed can make that person liable for an offence under section 19 of arms
act but it cannot deprive him of the benefit of section 80. But where two cars
running in an opposite direction collide with each other resulting in injuries to
the drivers of both the vehicles it will be a case of misfortune and accident. An
injury is said to be caused accidentally when it is neither wilfully nor
negligently caused.   In Stephen’s digest of Criminal Law the following
illustrations are given that elucidate the nature of acts that may be regarded as
accident.
 A, a school master corrects a scholar in a manner not intended or likely
to injure him using due Care. The scholar dies. Death is accidental.
  A turns B a trespasser, out of his house, using no more force than is
necessary for that purpose. B resists but without striking A. They fall in
struggle and B is killed. Death is accidental.
  A workman throws snow from. a roof giving proper Warning A
passenger is killed. Such a death is accidental.
 A takes up a gun, not knowing whether it is loaded or not points it in
sport at B and pulls the trigger. B is shot: dead. Such a death is not
accidental. If ‘A’ had reason to believe that the gun Was not loaded, the
death would have been accidental, although he had not used every
possible precaution to ascertain whether gun was loaded or not.
LAWFUL ACT DONE IN LAWFUL MANNER BY LAWFUL
MEANS:
In Jageshwar v. Emperor3, the accused was beating a person with his fists,
when the latter’s wife with a two months child on her shoulder interfered. The
accuse hit the woman but the blow struck the child on his head, The baby died
from the effect of blow It was held that although the child was, hit by accident
the accused was not doing a lawful act in lawful manner by lawful means and
therefore the defence under section 80 of I.P.C. could not be availed of by him.
A similar situation would arise where B struck violent blows on the head and
shoulder of a woman who was carrying an infant child in her arms. One of the
blows fell on the child and killed it, while the woman received serious injuries.
3
AIR 1929 All 932.

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Here again the defence under section 80 will not be available to the accused. He
would be liable for the offence of culpable homicide not amounting to murder
under section 301 of I.P.C. and for attempt to commit murder of the woman
under section 307. In this very case, if the woman too dies, then the accused
would be liable for committing murder of both.
Where A trespassed into B’s house in the absence and on return B demanded A
to leave but A refused to do so. This led to an altercation which excited B who
gave him a kick causing injury resulting in death. It was held that- A kick is not
justifiable mode of turning a man out of your house. Though he be a trespasser.
If the deceased would not die but for the injury received, the prisoner having
unlawfully caused that injury, he is guilty of manslaughter.
In Shakar Khan v. Emperor4, a big party consisting of some hundred men went
out for shooting pigs. A boar rushed toward the accused who fired at her, but he
missed the boar and the shot struck the leg of a member of the party. It was held
that the death was caused by accident and was not the result of rash or negligent
shooting. In another case A by shooting at a fowl with intent to kill and steal it
kills Z who is behind a bush, A not knowing that Z was there. Here A will not
be guilty of any offence and will get benefit of this section.
ACCIDENT IN UNLAWFUL ACTS:
Where an accident occurs in doing of unlawful act, there may be no liability for
the harm so caused if there is no casual connection between resulting harm and
the act in question. Macaulay in his draft of Indian penal code has cited two
illustrations. A pilot is navigating in the river with the utmost care. He directs
the vessels against a sand bank, the existence of which was unknown to him till
the disaster. Several passengers are drowned in the river. In this case to hang the
pilot as a murderer on account of his misfortune would be an act of atrocious
injustice. If the voyage of the pilot is illegal and an offence. Will it make a
difference? His answer then too is in negative. He says that to pronounce the
pilot guilty of one offence, because a misfortune befell him while he was
committing another offence- to pronounce him the murderer of people whose
lives he never meant to endanger, whom he was doing his best to carry safe to
their destination and whose death has been purely accidental is surely to
confound all boundaries of crime. The other illustration cited by Macaulay is
hundreds of persons in some great cities are in the habit of pickets. They know
that they are guilty of an offence. But it has never occurred to one of them, nor
would it occur to any rational man that they are guilty of an offence which
engender life. Unhappily, one of them attempts to take the purse of a gentleman
4
AIR 1931 Lah 54.

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who has a loaded pistol in his pocket. The thief touches the pistol and the trigger
goes off, the gentleman is shot dead. In his opinion this man cannot be treated
differently than all those pick pockets who steal under exactly similar
circumstances with exactly the same intention, with no less risk of causing
death, with no grater care to avoid causing death. Therefore, he suggests that he
should not be given punishment other than that any other pick pocket. Would
get. It means he should only be punished for pick pocketing and not for killing.
In his opinion when a person engaged in the commission of an offence cause
death by pure accident, he shall suffer only the punishment of his offence
without any addition on account of any such accidental death.
This view of the framer has found expression in illustration to section 299.
Therefore, the pick pocket will under our law be liable only for pick pocketing
and not for culpable homicide. It is submitted that we may agree with
Macaulay’s formulation in the first illustration but it would be difficult to agree
with his view, with regard to second one. The rule is that in harm caused by
accident the doer will not be liable if there is no casual connection between the
resulting harm and the act in question. In the first case there is no such casual
connection and even if we assume it to be so it is too remote. The voyage is
illegal but the death is caused because of diverting the vessels toward a sand
bank which act was quite innocent and accident occurred because of that act.
Death did not occur because of the voyage being illegal but of collision of the
vessel with sand bank. In the latter case the trigger of the pilot kept in the
pocket went off because the pick pocket put his hand in it with an intention to
seal and therefore the death was the result of an act which was not only an
offence but which has direct casual connection with the harm caused therefore it
is difficult to agree with the reasoning of sir Maculay that in both the cases
harm was caused by accident in the commission of another offence. True it may
be, but there is a case for reconsideration of the law in the subject.
ACT DONE WITH PROPER CARE AND CAUTION:
In Bhupendrasinh A. Chudasama v. State of Gujarat5, the appellant
Bhupendrasinh an armed constable of special reserved police shot at his
immediate superior head constable who died on the spot. The victim and the
appellant were posted in the same platoon at khampla dam site which was in
danger, some skirmishes developed and the deceased had taken the appellant to
task on the ground of dereliction in discharge of work allotted to him. The
appellant did not tightly take the diatribe hurled against him by the deceased
and he was groping for some opportunity to retaliate. On the evening of 2-7-
5
MANU/SC/0941/1997.

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1983 the appellant noted the victim walking near the tower of the dam. He
aimed his rifle at the deceased and pumped four bullets into his vital part. The
appellant did own the act of firing the rifle but pleaded that he was doing
patrolling duty with the service rifle and at about 7.45 p.m. when it was
absolutely dark he came near the bridge for proceeding towards the valve tower.
He saw a flame near the tower and saw somebody moving. He suspected that
some miscreants was about to commit mischief with the fire. He could not
identify the moving person due to want of life and shouted at him to stop. Since
there was no reply he proceeded further and repeated the shout and still there
was no reply. He had to open fire to discharge his liability. His version is that he
first fired in open ir and then fired two more rounds and heard the sound of
something falling down. Thereafter he reported the incident in the office. The
appellant was charged and tried for murder. He was acquitted b the trial judge
as he entertained doubt about his complicity.  The supreme court refused to
allow the benefit of section 80, I.P.C. because the act has not been done with
proper care and caution.
In Sita ram v. State of Rajasthan6, 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 was aware that the 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 304 I.P.C
Burden of proof: In order that the accused may successfully claim a defence
under this section proof of any criminal intention or knowledge behind the
doing of act is necessary. Where the accused pleads exception under this section
that the death was caused by accident, the court shall presume absence of
circumstances bringing the case within that expectation in view of section 105
of the evidence act and the burden will lie upon the accused to prove that his
case falls within the exception. The burden of proving negation of mens
rea which lies on the accused is discharged if he satisfies to obtain a verdict in
his favour. He need not to go to the excluding of reasonable doubt as the
prosecution must do to secure a conviction, mere preponderance of probability
is enough.
Wrestling: In Tunda v Rex7, the accused and deceased were two friends who
were fond of wrestling. The accused invited the deceased for wrestling bout. In
the bout the deceased was thrown out where his head came in contact with the
hard edge of chabutra which resulted in fracture of the skull and death. It was
held that when the two agreed to bout with each other, there was an implied
6
MANU/RH/0180/1997.
7
AIR 1950 All 95.

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consent on the part of each other to suffer accidental injuries. In this case
because the injury was not intentionally caused but occurred accidentally and
further there being no proof of foul play on the part of the accused, his act did
not amount to an offence. He was entitled to protection under this section.
Fire-arm: In the case of dealing with fire-arms a greater degree of care than in
ordinary case is required of man. Sometimes it is said that a man must know
that the gun is loaded. In English case, a man and his wife went to have dinner
with a friend, he carried his gun with him, hoping to meet with some diversion
by the way, but before going to dinner he discharged it and set it up in a private
place in his friend’s house. His wife brought the gun part of the way. He carried
the gun the room where his wife was. He is tacking it up touched the trigger and
the gun went off and killed the wife, whom he dearly loved. In the course of
evidence, it was shown that while the man was at church a person belonging to
the family had privately taken the gun out to shoot and had returned it loaded to
the place where it was put in the friend’s house. The accused was acquitted on
the ground that he had reasonable grounds to believe that the gun was not
loaded. The death was, therefore held to be by accident.
ACT LIKELY TO CAUSE HARM, BUT DONE WITHOUT
CRIMINAL INTENTION:
Section 81 deals with 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 knowledge that it is likely to cause harm, if it to 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.8
Explanation: It is a question of fact in such a case whether the harm to be
prevented or avoided was of such a nature and so imminent as to justify or
excuse the risk of doing the act with the knowledge that it was likely to cause
harm.
Illustrations
a) as to 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 a 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
8
The Indian Penal Code, 1860, (Act 45 of 1860), s. 81.

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 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 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 imminent excuse A's act, A is not guilty of
the offence.
INGRIDENTS:
The Indian law on defence of necessity as contained in section 81 of I.P.C. may
be analyses as follows:
 The act constituting the offence is known by the wrongdoer to be likely to
cause harm, but it is done without any criminal intention to cause harm.
 The act must have also been done in good faith
 The act must have also been done for the purpose of preventing or
avoiding other harm.
 The harm aimed to be prevented or avoided may relate to person or
property.
Wherever necessity forces a man to do an illegal act, he will be justified
because no man can be guilty of a crime without the will and intention of mind.
Thus, the law of necessity dispenses with things which otherwise are not lawful
to be done. But it is a defence provided that harm was not otherwise avoidable.
In Cope v. Sharpe9, it was held justifiable to burn ship of heather to prevent a
fire from spreading. Similarly in the case of Mouse’s case, a bargeman threw
goods of the plaintiff out of a barge in order to lighten the barge in a storm and
for the safety of the passenger and it would be immaterial that bargeman had
overloaded the barge.
Act without criminal intention: in order to take the plea of this section one
must prove that the act which has been done by him is without any criminal
intention, or the act was not done with evil mind. Intentional wrong doing
cannot be justified. For example, A see a tiger attacking B and he feels sure that
the tiger will be on him in a minute, A shoots the tiger fully knowing that B and
9
(No. 2) (1912) 1 K.B. 496.

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the tiger are so close that he might kill B and not the tiger. Here if A kills B, he
would be guilty of no offence because he had no intention to kill B. A intent to
kill tiger to save B.
ACT DONE TO PREVENT HARM TO PERSON OR
PROPERTY:
The main principle on which this section is based is that, causing of lesser evil
may be justified to prevent greater evil either to person or property. All
measures which may become necessary on occasion of contagious diseases,
sieges, famines, tempests of shipwrecks are covered by this section.
Necessity as a reason for homicide: The question whether the doctrine of
necessity can be applied as a justification for killing human being is a very
tricky question. The usual view is that necessity is no defence to charge of
murder. But the question become 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 aggressor. Generally, the aggressor are
wrongdoers, while the persons against whom action is taken by necessity may
not be aggressor or wrongdoer.
In R v. Dudley and Stephens10, the crew of yacht, Mignonette was 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 crew 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 flesh and drank his blood for four days. They were
then rescued by passing vessel and were subsequently charged with murder.

CONCLUSION:
The criminal law outlines different punishments for various crimes. But a
person may not always be punished for a crime that he/she has committed. The
10
(1884) 14 QBD 273 (DC).

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Indian penal code 1860 recognizes defences under section 76 to section 106.
The law offers certain defences that exculpate criminal liability. These defences
are based on the premises that though the person committed the offense, he
cannot be held liable. This is because at the time of the commission of the
offence, either the prevailing circumstance were such that the act of person was
justified or his condition was such that he could not form the requisite mens rea
for the crime. The defences are generally classified under two heads: justifiable
and excusable. Accident comes under excusable general exception, where if
person has done lawful act in lawful manner without any criminal intention,
then he/she can take the plea of this section.

LIST OF REFERENCES:
1. The Indian Penal Code, 1860, (Act 45 of 1860).

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2. Sir James Fitzjames Stephen, A Digest of the Criminal Law (Crimes and
Punishments) (Macmillan and Co. and New York, London, 5th edn.,
1894).
3. P.S. Atchuthen Pillai, K.I Vibhute, P S A Pillai’s Criminal Law (Lexis
Nexis, 14th edn., 2019).
4. https://cukashmir.knimbus.com/
5. https://www-scconline-com-cukashmir.knimbus.com/
6. https://www-manupatrafast-in-cukashmir.knimbus.com/

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