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murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has
committed no offence, though it may turn out that Z was acting in self-defence.
18.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 hatchet; the head flies off and kills a man who is standing by. Here,
if there was no want of proper caution on the part of A, his act is excusable and not an
offence.
19.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 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) A, the captain of a 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 Aalters 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 imminent as to
excuse A’s act, A is not guilty of the offence.Act of Judge |
when acting
judicially.
Act done
pursuant to
judgment or |
order of
Court.
Act done by a
person justified,
or by mistake of |
fact believing
himself justified,
by law.
Accident in
doing a lawful |
act.
Act likely to
cause harm,
but done
without |
criminal
intent, and to
prevent other
harm.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY11_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________20.Nothing is an offence which is done by a child under seven years of age.
21.Nothing is an offence which is done by a child above seven years of age and under |
twelve years of age, who has not attained sufficient maturity of understanding to judge of
the nature and consequences of his conduct on that occasion.
22.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. |
23. 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.
24.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 was administered to him without his knowledge or against
his will.
25.Nothing which is not intended to cause death, or grievous hurt, and which is not |
known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause, to any person, above eighteen
years of age, who has given consent, whether express or implied, to suffer that harm; or by
reason of any harm which it may be known by the doer to be likely to cause to any such
person who has consented to take the risk of that harm. |
Illustration.
A and Z agree to fence with each other for amusement. This agreement implies the
consent of each to suffer any harm which, in the course of such fencing, may be caused
without foul play; and if A, while playing fairly, hurts Z,A commits no offence.
26.Nothing, which is not intended to cause death, is an offence by reason of any harm |
which it may cause, or be intended by the doer to cause, or be known by the doer to be likely
to cause, to any person for whose benefit it is done in good faith, and who has given a
consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration.
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who |
suffers under the painful complaint, but not intending to cause Z’s death, and intending, in
good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no
offence.
27.Nothing which is done in good faith for the benefit of a person under twelve years
of age, or person of unsound mind, by, or by consent, either express or implied, of the |
guardian or other person having lawful charge of that person, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause or be known by the doer to be
likely to cause to that person:
Provided that this exception shall not extend to––
(a) the intentional causing of death, or to the attempting to cause death; |
(b) the doing of anything which the person doing it knows to be likely to causeAct of a child
above seven
and under
twelve years
of age of |
immature
understanding.
Act of a
person of
unsound mind. |
Act of a person
incapable of
judgment by
reason of
intoxication |
caused against
his will.
Offence
requiring a
particular |
intent or
knowledge
committed by
one who is
intoxicated. |
Act not
intended and
not known to
be likely to
cause death or |
grievous hurt,
done by
consent.
Act not
intended to |
cause death,
done by
consent in
good faith for
person's |
benefit.
Act done in
good faith for
benefit of
child or |
person of
unsound mind,
by, or by
consent of
guardian.Act of a child |
under seven
years of age.12THE GAZETTE OF INDIA EXTRAORDINARY[Part II—_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________death, for any purpose other than the preventing of death or grievous hurt, or the
curing of any grievous disease or infirmity;
(c) the voluntary causing of grievous hurt, or to the attempting to cause grievous
hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of |
any grievous disease or infirmity;
(d) the abetment of any offence, to the committing of which offence it would not
extend.
Illustration.
A, in good faith, for his child’s benefit without his child’s consent, has his child cut for |
the stone by a surgeon knowing it to be likely that the operation will cause the child’s death,
but not intending to cause the child’s death. A is within the exception, in as much as his
object was the cure of the child.
28.A consent is not such a consent as is intended by any section of this Sanhita,––
(a) if the consent is given by a person under fear of injury, or under a misconception |
of fact, and if the person doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or misconception; or
(b) if the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he
gives his consent; or |
(c) unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.
29.The exceptions in sections 25, 26 and 27 do not extend to acts which are offences
independently of any harm which they may cause, or be intended to cause, or be known to
be likely to cause, to the person giving the consent, or on whose behalf the consent is given. |
Illustration.
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the
woman) is an offence independently of any harm which it may cause or be intended to cause to
the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the
woman or of her guardian to the causing of such miscarriage does not justify the act. |
30.Nothing is an offence by reason of any harm which it may cause to a person for
whose benefit it is done in good faith, even without that person’s consent, if the circumstances
are such that it is impossible for that person to signify consent, or if that person is incapable
of giving consent, and has no guardian or other person in lawful charge of him from whom it
is possible to obtain consent in time for the thing to be done with benefit: |
Provided that this exception shall not extend to––
(a) the intentional causing of death, or the attempting to cause death;
(b) the doing of anything which the person doing it knows to be likely to cause
death, for any purpose other than the preventing of death or grievous hurt, or the
curing of any grievous disease or infirmity; |
(c) the voluntary causing of hurt, or to the attempting to cause hurt, for any
purpose other than the preventing of death or hurt;
(d) the abetment of any offence, to the committing of which offence it would not
extend.
Illustrations. |
(1) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires toConsent
known to be
given under
fear or
misconception. |
Exclusion of
acts which are
offences
independently
of harm |
caused.
Act done in
good faith for
benefit of a
person |
without
consent.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY13_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the
trepan before Z recovers his power of judging for himself. A has committed no offence.
(2) Z is carried off by a tiger. Afires at the tiger knowing it to be likely that the shot may
kill Z, but not intending to kill Z, and in good faith intending Z’s benefit.A’s bullet gives Z a |
mortal wound. A has committed no offence.
(3)A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an
operation be immediately performed. There is no time to apply to the child’s guardian. A
performs the operation in spite of the entreaties of the child, intending, in good faith, the
child’s benefit. A has committed no offence. |
(4) A is in a house which is on fire, with Z, a child. People below hold out a blanket.A
drops the child from the house top, knowing it to be likely that the fall may kill the child, but
not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if
the child is killed by the fall, A has committed no offence.
Explanation.—Mere pecuniary benefit is not benefit within the meaning of |
sections 26, 27 and this section.
31.No communication made in good faith is an offence by reason of any harm to the
person to whom it is made, if it is made for the benefit of that person.
Illustration.
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. |
The patient dies in consequence of the shock. A has committed no offence, though he knew
it to be likely that the communication might cause the patient’s death.
32.Except murder, and offences against the State punishable with death, nothing is an
offence which is done by a person who is compelled to do it by threats, which, at the time of
doing it, reasonably cause the apprehension that instant death to that person will otherwise |
be the consequence:
Provided that the person doing the act did not of his own accord, or from a reasonable
apprehension of harm to himself short of instant death, place himself in the situation by
which he became subject to such constraint.
Explanation 1.—A person who, of his own accord, or by reason of a threat of being |
beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this
exception, on the ground of his having been compelled by his associates to do anything that
is an offence by law.
Explanation 2.—A person seized by a gang of dacoits, and forced, by threat of instant
death, to do a thing which is an offence by law; for example, a smith compelled to take his |
tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the
benefit of this exception.
33.Nothing is an offence by reason that it causes, or that it is intended to cause, or
that it is known to be likely to cause, any harm, if that harm is so slight that no person of
ordinary sense and temper would complain of such harm. |
Of right of private defence
34. Nothing is an offence which is done in the exercise of the right of private defence.
35.Every person has a right, subject to the restrictions contained in section 37, to
defend—
(a) his own body, and the body of any other person, against any offence affecting |
the human body;
(b) the property, whether movable or immovable, of himself or of any otherCommunication
made in good
faith.
Act to which a |
person is
compelled by
threats.
Act causing
slight harm. |
Things done
in private
defence.
Right of
private |
defence of
body and of
property.14THE GAZETTE OF INDIA EXTRAORDINARY[Part II—_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________person, against any act which is an offence falling under the definition of theft, robbery,
mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief
or criminal trespass. |
36.When an act, which would otherwise be a certain offence, is not that offence, by
reason of the youth, the want of maturity of understanding, the unsoundness of mind or the
intoxication of the person doing that act, or by reason of any misconception on the part of
that person, every person has the same right of private defence against that act which he
would have if the act were that offence. |
Illustrations.
(a) Z, a person of unsound mind, attempts to kill A; Z is guilty of no offence. ButA has
the same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter. Z, in good faith,
taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, |
commits no offence. But A has the same right of private defence against Z, which he would
have if Z were not acting under that misconception.
37.(1) There is no right of private defence,––
(a) against an act which does not reasonably cause the apprehension of death
or of grievous hurt, if done, or attempted to be done, by a public servant acting in good |
faith under colour of his office, though that act, may not be strictly justifiable by law;
(b) against an act which does not reasonably cause the apprehension of death
or of grievous hurt, if done, or attempted to be done, by the direction of a public
servant acting in good faith under colour of his office, though that direction may not
be strictly justifiable by law; |
(c) in cases in which there is time to have recourse to the protection of the public
authorities.
(2) The right of private defence in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defence.
Explanation 1.—A person is not deprived of the right of private defence against an act |
done, or attempted to be done, by a public servant, as such, unless he knows or has reason
to believe, that the person doing the act is such public servant.
Explanation 2.—A person is not deprived of the right of private defence against an act
done, or attempted to be done, by the direction of a public servant, unless he knows, or has
reason to believe, that the person doing the act is acting by such direction, or unless such |
person states the authority under which he acts, or if he has authority in writing, unless he
produces such authority, if demanded.
38.The right of private defence of the body extends, under the restrictions specified in
section 37, to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions hereinafter |
enumerated, namely:—
(a) such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault; |
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying unnatural lust;
(e) an assault with the intention of kidnapping or abducting;Right of
private
defence |
against act of
a person of
unsound mind,
etc.
Acts against |
which there is
no right of
private
defence.
When right of |
private
defence of
body extends
to causing
death.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY15_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________(f) an assault with the intention of wrongfully confining a person, under |
circumstances which may reasonably cause him to apprehend that he will be unable to
have recourse to the public authorities for his release;
(g) an act of throwing or administering acid or an attempt to throw or administer
acid which may reasonably cause the apprehension that grievous hurt will otherwise
be the consequence of such act. |
39.If the offence be not of any of the descriptions specified in section 38, the right of
private defence of the body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions specified in section 37, to the voluntary
causing to the assailant of any harm other than death.
40.The right of private defence of the body commences as soon as a reasonable |
apprehension of danger to the body arises from an attempt or threat to commit the offence
though the offence may not have been committed; and it continues as long as such
apprehension of danger to the body continues.
41.The right of private defence of property extends, under the restrictions specified in
section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the |
offence, the committing of which, or the attempting to commit which, occasions the exercise
of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—
(a) robbery;
(b) house-breaking after sunset and before sunrise;
(c) mischief by fire or any explosive substance committed on any building, tent |
or vessel, which building, tent or vessel is used as a human dwelling, or as a place for
the custody of property;
(d) theft, mischief, or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the consequence,
if such right of private defence is not exercised. |
42. If the offence, the committing of which, or the attempting to commit which occasions
the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any
of the descriptions specified in section 41, that right does not extend to the voluntary
causing of death, but does extend, subject to the restrictions specified in section 37, to the
voluntary causing to the wrong-doer of any harm other than death. |
43.The right of private defence of property,––
(a) commences when a reasonable apprehension of danger to the property
commences;
(b) against theft continues till the offender has effected his retreat with the
property or either the assistance of the public authorities is obtained, or the property |
has been recovered;
(c) against robbery continues as long as the offender causes or attempts to
cause to any person death or hurt or wrongful restraint or as long as the fear of instant
death or of instant hurt or of instant personal restraint continues;
(d) against criminal trespass or mischief continues as long as the offender |
continues in the commission of criminal trespass or mischief;
(e) against house-breaking after sunset and before sunrise continues as long as
the house-trespass which has been begun by such house-breaking continues.
44. If in the exercise of the right of private defence against an assault which reasonably
causes the apprehension of death, the defender be so situated that he cannot effectuallyWhen such |
right extends
to causing any
harm other
than death.
Commencement |
and
continuance of
right of private
defence of
body. |
When right of
private
defence of
property
extends to |
causing death.
When such
right extends
to causing any
harm other |
than death.
Commencement
and
continuance
of right of |
private
defence of
property.
Right of private
defence against |
deadly assault
when there is
risk of harm to
innocent person.16THE GAZETTE OF INDIA EXTRAORDINARY[Part II—_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________exercise that right without risk of harm to an innocent person, his right of private defence
extends to the running of that risk. |
Illustration.
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his
right of private defence without firing on the mob, and he cannot fire without risk of harming
young children who are mingled with the mob. Acommits no offence if by so firing he harms
any of the children. |
CHAPTERIV
OF ABETMENT ,CRIMINAL CONSPIRACY AND A TTEMPT
of abetment
45.A person abets the doing of a thing, who—
(a) instigates any person to do that thing; or |
(b) engages with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
(c) intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment |
of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts
to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration.
A, a public officer, is authorised by a warrant from a Court to apprehend Z. B, knowing
that fact and also that C is not Z, wilfully represents toA that C is Z, and thereby intentionally |
causes A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission of an act,
does anything in order to facilitate the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.
46.A person abets an offence, who abets either the commission of an offence, or the |
commission of an act which would be an offence, if committed by a person capable by law of
committing an offence with the same intention or knowledge as that of the abettor.
Explanation 1.—The abetment of the illegal omission of an act may amount to an
offence although the abettor may not himself be bound to do that act.
Explanation 2.—To constitute the offence of abetment it is not necessary that the act |
abetted should be committed, or that the effect requisite to constitute the offence should be
caused.
Illustrations.
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit
murder. |
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers
from the wound. Ais guilty of instigating B to commit murder.
Explanation 3.—It is not necessary that the person abetted should be capable by law
of committing an offence, or that he should have the same guilty intention or knowledge as
that of the abettor, or any guilty intention or knowledge.Abetment of a |
thing.
Abettor.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY17_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Illustrations.
(a) A, with a guilty intention, abets a child or a person of unsound mind to commit an
act which would be an offence, if committed by a person capable by law of committing an
offence, and having the same intention asA. Here A, whether the act be committed or not, is |
guilty of abetting an offence.
(b) A, with the intention of murdering Z, instigates B, a child under seven years of age,
to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the
absence of A and thereby causes Z’s death. Here, though B was not capable by law of
committing an offence, Ais liable to be punished in the same manner as if B had been capable |
by law of committing an offence, and had committed murder, and he is therefore subject to
the punishment of death.
(c) Ainstigates B to set fire to a dwelling-house. B, in consequence of his unsoundness
of mind, being incapable of knowing the nature of the act, or that he is doing what is wrong
or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed |
no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is
liable to the punishment provided for that offence.
(d) A, intending to cause a theft to be committed, instigates B to take property belonging
to Z out of Z’s possession. Ainduces B to believe that the property belongs to A. B takes the
property out of Z’s possession, in good faith, believing it to be A’s property. B, acting under |
this misconception, does not take dishonestly, and therefore does not commit theft. But A is
guilty of abetting theft, and is liable to the same punishment as if B had committed theft.
Explanation 4.—The abetment of an offence being an offence, the abetment of such
an abetment is also an offence.
Illustration. |
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and
C commits that offence in consequence of B’s instigation. B is liable to be punished for his
offence with the punishment for murder; and, as A instigated B to commit the offence, A is
also liable to the same punishment.
Explanation 5.—It is not necessary to the commission of the offence of abetment by |
conspiracy that the abettor should concert the offence with the person who commits it. It is
sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
Illustration.
A concerts with B a plan for poisoning Z. It is agreed thatA shall administer the poison.
B then explains the plan to C mentioning that a third person is to administer the poison, but |
without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to
B for the purpose of its being used in the manner explained. Aadministers the poison; Z dies
in consequence. Here, though A and C have not conspired together, yet C has been engaged
in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the
offence defined in this section and is liable to the punishment for murder. |
47.A person abets an offence within the meaning of this Sanhita who, in India, abets
the commission of any act without and beyond India which would constitute an offence if
committed in India.
Illustration.
A, in India, instigates B, a foreigner in country X, to commit a murder in that country, |
A is guilty of abetting murder.
48.A person abets an offence within the meaning of this Sanhita who, without and
beyond India, abets the commission of any act in India which would constitute an offence if
committed in India.Abetment in
India of |