India Criminal Defense Manual - Various Defense Strategies

Introduction

In the process of developing a theory of the case, a legal aid lawyer shall decide whether it is possible to exonerate the client from guilt. If so, the lawyer shall further consider how to prove the innocence of the client at trial. The following are possible defenses for exonerating an accused from criminal liability under the Indian legal framework and applicable circumstances to raise such defenses.

Has the prosecution borne the burden of proof?

Remember that your client is entitled to the right of being innocent until proven guilty. No person shall be found guilty without being judged as such by the Court according to law. It is the prosecution's duty to prove that the client is guilty of the charges against him. It means the prosecution must prove that the facts are clear and the evidence is sufficient.

Before forming other defenses, the counsel should critically scrutinize the bill of prosecution to confirm whether the alleged crime has really occurred or not. If it has occurred, further consider whether the prosecution has presented evidence sufficient enough to support the charge. Consider whether another charge (a lighter charge) fits better with the case evidence.

The following are necessary questions for your consideration:

• What are the elements of the accused offense? For example:

Self-driven act: Did the client act from his own free will? What evidence has the prosecution presented to prove that the client acted of his own accord?

State of mind: Under what state of mind would the client's act constitute a crime (for example: intentionality, disregard of the outcome, negligence)?

Is the crime a strict liability crime (the prosecutor has no burden to present evidence concerning the accused's intent)? What evidence has the prosecution presented to prove that the client in his actions had the requisite criminal intent, had specific knowledge or skill necessary for committing the act, or was criminally negligent?

Cause and effect: Did the client's act result in the ultimate injury?

Direct cause: Were the client's actions far enough from the charged crime that he should not be subject to any legal responsibility?

Legal obligation: In this situation, does the law stipulate that the client must act in specific ways to exercise his distinctive legal obligation?

• What laws define the elements of a crime? Are these laws contradictory with each other?
• How much evidence must be presented in order to sufficiently meet all the required elements of the accused crime? What are the elements of the crime that the client should have been charged with, but was not?
• Does the evidence presented meet the evidence requirements for all the elements of the alleged offense? What are the legal stipulations regarding evidence for elements of the accused crime? What evidence supports the prosecution's case? What evidence is not consistent with the prosecution's argument?
• If the prosecutor cannot present sufficient evidence to support the charged offense or even support a lighter offense, the legal aid lawyer shall point out the insufficiency of evidence to thecourt and request that the court either judge the client as innocent or dismiss the charges.

Has the Statutory Time Limit for Criminal Prosecution Expired?

In view of the Section 468 of The Code of Criminal Procedure no court shall take cognizance of an offence for the following category after the expiration of a period of limitations as follows:

1. Six months�where the offence is punishable with fine only

2. One year�if the offence is punishable with imprisonment for a term not exceeding one year

3. Three years�if the offence is punishable with imprisonment with a term exceeding one year but not exceeding three year. However, any court may take cognizance of the offence after the expiration of the said period of limitations if it is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary in the interests of justice.

Is it Possible to Make an Affirmative Defense if the Facts of the Crime Cannot be Denied?

In an affirmative defense, counsel does not deny the elements of the alleged offense but still attempts to prove the innocence of the accused. Such a defense requires counsel to present sufficient evidence, including witness testimony or material evidence. Even if the lawyer does not deny that the accused committed the alleged acts, the defense will try to prove that the acts were justified or provide another legal defense for negating the accused's criminal liability.

Can the legal aid lawyer prove the innocence of the accused?

This is one type of affirmative defense and aims to prove that the accused did not commit the crime, i.e. that the accused could not possibly have committed the alleged offense.

The two most common methods of proving the accused innocent are: proving the accused's alibi and using the material evidence to prove that the alleged offense could not have happened. In employing the first strategy, the criminal legal aid lawyer can provide credible evidence, such as the testimony of a witness at the scene to prove an alibi; if adopting the second strategy, the legal aid lawyer can cite credible evidence demonstrating the weaknesses of the material evidence against the accused, and explain how these limitations or weaknesses exclude the possibility of the alleged offense. For example, suppose the accused was accused of stabbing the victim, and the evidence provided by the prosecutor indicates that the victim was stabbed by an assailant who used his right hand. In such circumstances, if the criminal legal aid lawyer can provide credible evidence to prove that the accused's right hand was previously injured and that he could not have used it at the time that the crime was committed; this demonstrates that the accused could not have committed the alleged offense.

Can the legal aid lawyer justify the crime committed by the accused?

Justifying the crime for the accused is another type of affirmative defense wherein the accused does not deny the alleged offense, but argues that he should not bear legal responsibility for it. Counsel is arguing that the accused committed the alleged offense for justified causes that are socially accepted or that conform to moral principles.

1. Statutory Excuses that Exclude Transgression: Justifiable Defense and Averting Danger in an Emergency

2. Legally Prescribed Excuses for Mitigation:

List of defenses described in Chapter IV of the Indian Penal Code

1. Act of a person bound by law to do a certain thing

2. Act of a Judge acting judicially

3. Act done pursuant to an order or a judgment of a Court

4. Act of a person justified, or believing himself justified, by law

5. Act caused by accident

6. Act likely to cause harm done without criminal intent to prevent other harm

7. Act of a child under 7 years

8. Act of a child above 7 and under 12 years, but of immature understanding

9. Act of a person of unsound mind

10. Act of an intoxicated person and partially exempted

11. Act not known to be likely to cause death or grievous hurt done by consent of the sufferer

12. Act not intended to cause death done by consent of sufferer

13. Act done in good faith for the benefit of a child or an insane person by or by the consent of guardian

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

15. Communication made in good faith to a person for his benefit

16. Act done under threat of death

17. Act causing slight harm

18. Act done in private defence

The Indian Penal Code in Chapter IV describes the following acts exempted under the code from criminal liability under the following categories:

• Judicial Acts,
• Mistake of fact ,
• Accident
• Absence of criminal intent ,
• Consent ,
• Trifling acts
• Private defence

Judicial Acts

This category only applies to Court officals.

Judges presiding over cases are exempted if acting in good fairth and under lawful powers. S. 77. of the Indian Penal Code says, "Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him". Applicable only to Judges, under this section, a Judge is exempted in those cases he normally presides over and any other cases he may so preside over so long as good faith and lawful powers are present. A Judge must be acting within the Judges jurisdiction to be protected.

Agents of the Court are protected so long as they believe the Court has jurisdiction. S. 78. of the Indian Penal Code says, "Nothing which is done in pursuance of, or which is warranted by the judgement or order of, a Court of Justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgement or order, provided the person doing the act in good faith believes that the Court had such jurisdiction." Applicable to those acting pursuant to a Court order, under this section, an agent of the Court is exempted in those cases the agent believes the Court had jurisdiction. Actual jurisdiction is not required so long as the agent of the Court believes the Court had jurisdiction. Mistake of law can be a defense.

Mistake of Fact

Mistake must be of fact and not of law. The burden of proving there is a mistake of fact is on the Defendant and the Court will assume there is not a mistake of fact unless the Defendant brings the evidence forward. A Defendant does not bring the evidence forward until after the prosecution has crossed the barrier of innocence. In Bai Ramilaben v. State of Gujarat, a mother accused of killing her four children, the prosecution failed to produce a medical report as to the mother's mental state as an element to the crime and the mother did not have to establish a defense.

Those bound by the law to follow an order, mistake of fact is a defense where the Defendant believes in good faith Defendant was bound by the law. S. 76. of the Indian Penal Code says, "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." In the case of orders by parents and masters, mistake of fact will not be a defense. A police officer who tortures will only be allowed this defense if the police officer is under fear of death from superiors.

In Emperor v. Gopalia Kallaiya, a police officer from another part of India was protected under this section when the officer in good faith and under warrant came to Bombay to arrest a person, but arrests the wrong person. In Sheo Surun Sahai v. Mahomed Fazil Khan, a police officer who saw a horse tied up in B's premise that resembled a horse the officer's father had lost a few days prior, the officer jumped at the conclusion that the horse was the officer's father's horse and when the officer discovered that B had purshased the horse from S, the officer sent for S, charged S with theft, and required S to make bail without investigating; the Court held that the officer did not act with good faith so the officer was not protected.

Anyone acting in good faith believing to be justified in law, mistake of fact is a defense. S. 79 of the Indian Penal Code says, "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." Example: A appears to B to be committing a murder. A believing in good faith B has committed a murder, seizes B. A has not committed any offense even if A was mistaken that B had committed a murder.

The distinction between s. 76. and 79. of the Indian Penal Code is that in s. 76. the Defenant is assumed to be bound by the law to act and in s. 79. the Defendant is justified in acting. Both require a bona fide intention. Defendant cannot plead general good motive, but must spefically believe that Defenant was bound by the law or in best judgement. The mistake must be one of fact and not of law. Honest and reasonable mistakes are matters of fact.

Ignorance of a fact can make the act morally involuntary. In Levett, Defendant on reasonable grounds swings a sword at what he beleived to be a burglar and killed a man, had not committed an offense since he would have been in the same situation had the person been a burglar. In State of Orissa v. Khora Ghasi, a farmer protecting his farm from a bear, fires an arrow and kills a man who was hiding in the bushes. The farmer was not held liable under section 79 of the Indian Penal Code. In Keso Sahu v. Saligram, while helping the police stop a car reasonably suspected of carrying smuggled rice which turned out to be incorrect, the accused could not be prosecuted for wrongful restraint. However, if the act is clearly wrong, then mistake of fact will not be a defense.

In Bhawoo Jivaji v. Mulji Dayal, a police constable saw complainant carrying three pieces of clothes that the constable suspected to be stolen, approached the complainant and questioned the complainant. The constable not satisfied with complainant's answers and the complainant's refusal of allowing the constable to inspect the clothes caused a scuffle. The complainant was arrested by the constable, but released by the Inspector of Police. The complainant prosecuted the constable for wrongful restraint and confinement. The Court held that asking the questions to clear up the situations was evidence of good faith and protected under this section (s. 79.) of the Indian Penal Code.

Mistake of law is no defense, i.e. mistake as to the existence of a law or as to what is the law. Those who make a mistake of law must abide by the consequences of the error. Application extends to even those circumstances in which there is no way for the person to have known of the existence of the law. In addition, the law does not have to be published or known outside of India to be eEnforceable.

In King v. Tustipada Mandal, the Court laid out guidline rules for either mistake of fact or mistake of law.

"(i) That when an act is in itself plainly criminal, Is 1b more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence.

(ii) That where an not is prima facie innocent & proper, unless certain circumstances co-exist, then ignorance of such circumstances is an answer to the charge.

(iii) That the state of the deft's mind must amount to absolute ignorance of the existence of the circumstance which alters the character of the act, or to a belief in its non-existence.

(iv) Where an act which is in itself wrong i.e., under certain circumstances, criminal, a person who does the wrong act cannot set up as a defence that he wag ignorant of the facts which turned the wrong into a crime.

(v) Where a statute makes it penal to do an act under certain circumstances, It ix a question upon the wording & object of the particular statute, whether the responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case his knowledge is immaterial."

Accident

This section is aimed at those who are innocent or acting in a genuine lawful manner, i.e. without criminal intent or knowledge of the negative impacts of their actions. Section 80 of the Indian Penal Code says, "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."

Private defence

In State of Orissa v. Bhagbhan Barik, the Defendant thinking the Deceased was a thief to protect the Defendant's property, struck the Deceased with a lathi, killing him, outside of the house near a pond; the Court held that there was no private defense of property and the Defendant was convicted under s. 304 Part II.

Minor Offender

In representing juvenile offenders, the legal aid lawyer emphasizes that the accused should not bear criminal responsibility because of his or her age. Section 2(k) specifies eighteen as the higher limit for bearing criminal responsibility.

3. Other Excuses of Defense:

Maltreated Women Syndrome:

Although some courts do not recognize "Maltreated Women Syndrome" as a criminal defense, it can be considered secondary evidence for other defenses such as self-defense, defense from being coerced, etc. Because "Maltreated Women Syndrome" affects a person's behavior, an expert needs to be retained to testify and explain her acts in this context. Some courts allow using expert testimony about "Maltreated Women Syndrome" to prove the accused did not have the requisite intent for committing the alleged crime.

Being under Coercion or Duress

If the accused was forced or coerced to participate in a crime, the legal aid lawyer can argue the defense of being forced or coerced. When many accuseds are involved in a case and any one of them may have been coerced by the other accuseds, the legal aid lawyer often employs this kind of defense.

Criminal Act of Necessity

When the accused committed some crimes to avoid more serious damage, the defense of necessity can be adopted. Similar to the stipulations concerning justifiable defense, if the accused's act exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.

Misunderstanding of Law/Facts:

In this type of defense, the criminal legal aid lawyer argues that the accused had no knowledge that his act constituted a crime at all. In the defense of misunderstanding the law, the criminal legal aid lawyer must prove that first, the accused can be found guilty of the alleged crime only if he deliberately broke the law, and second, that the accused did not know the law at the time of the offense. In the defense of misunderstanding facts, the criminal legal aid lawyer must prove that first, the accused misunderstood the true circumstances at the time of the offense; second, if he understood them, he would not have committed the crime; third, there were understandable reasons for this misunderstanding.

Being Instigated or Misled by Government

When the government has instigated or misled the accused to commit a crime, the criminal legal aid lawyer can consider using two types of defense. In the "instigated by the government" defense, the legal aid lawyer must prove that government officials instigated the accused to commit the crime, and that the accused would not have otherwise committed the crime. In the "misled by the government" defense, the criminal legal aid lawyer must prove that first, government officials told the accused that the alleged crime was legal; second, the accused committed the crime only because he believed this; and third, there were understandable reasons for the accused's credulousness. The legal aid lawyer then argues that the accused should therefore not be held criminally responsible. In this type of defense, the legal aid lawyer focuses on the government officials' acts rather than on the accused's thoughts and on whether the accused had the motive to commit the crime. Even if the case concerns a crime usually considered under the "strict responsibility principle" (i.e. even if the crime is one of "strict responsibility" under the law), this type of defense can still be employed.

Criminal Act with Sincere Intent

"Sincerity" refers to very sincere ideas or beliefs, or is used to describe somebody lacking in evil or malicious intent. The defense of "crimes with sincere intent" usually applies to crimes of tax or financial fraud for which the accused's intent needs to be verified. Deliberate fraud or forgery cannot be considered "sincere." If, however, the criminal legal aid lawyer can prove the accused possessed all sincerity in his act, it can be inferred that the accused did not have fraudulent intent as alleged by the prosecutor.

Did the accused complete the crime?

Although being only at a certain stage of the crime (e.g. an intermediate stage) cannot count as evidence that proves the accused's innocence, it can lessen the accused's punishment in the court's final sentencing and even result in the accused being exempted from punishment. Thus, the legal aid lawyer must carefully research the accused's acts to determine whether the following circumstances exist so as to request a mitigated punishment or exemption from punishment : crime preparation V, an attempt to commit a crime, as the discontinuation of a crime (or lack thereof).

Is there anyone who should take more responsibility than the client for the alleged offense?

Does the accused have any other jointly accused persons? If so, the legal aid lawyer must investigate the concrete role of every co-accused to determine the actual role of the client. The lawyer needs to pay particular attention to joint crimes .

Was your client the ringleader in the course of the crime? Did your client organize, plot, or direct/lead the criminal group or other jointly accused persons? Was your client playing an important role in the course of joint crimes? Did your client instigate others to commit a crime?

Did your client play a secondary role in the course of the preparation and commission of the crime?

Is your client eligible for a lighter or mitigated punishment?

The court can be allowed to give the accused a mitigated punishment or exempt him from punishment under some circumstances according to law.

Can the lawyer still seek a mitigated punishment for the client if there are no statutory specifications about mitigation?

Yes, The following are some points of evidence that may help in obtaining a mitigated punishment:

1. The accused does not have long-term criminal record.

2. The accused has expressed sincere remorse and self-examination for having participated in the crime.

3. The accused has compensated the victim for all his or her losses.

4. The accused is still a minor and also wants to continue schooling; his school also allows him to continue enrollment.

5. The accused needs to take care of elderly and young household members.

6. The accused is mentally retarded and cannot sensibly make judgments, and is thus easily taken advantage of by others.

7. The accused had a difficult childhood (for example, he was ill-treated at home) that has affected his long-term personal development.

8. The accused has had to overcome great hardships that have tested his limits and abilities as a person (for instance, domestic violence, drug- addiction).

9. The accused has good work experience or educational background, or has made significant contributions to society.

10. Any other mitigating circumstances about the accused. The legal aid lawyer should think of any means to describe the accused as pitiable and condonable.

In order to discover these points of evidence for a mitigated punishment, the legal aid lawyer must win the trust of the client, his family members, and other important persons in his life (such as his teacher or boss). The evidence for a mitigated punishment must form an important part of the theory of the case. When presenting the evidence for mitigated punishment in court, the legal aid lawyer does not need to conceal his own feelings. The legal aid lawyer's objective is for the court to see his client's more humane side and thereby to give him the opportunity for reform.

Conclusion

In the course of developing the theory of the case, the lawyer needs to carefully consider the prosecutor's burden of proof. Furthermore, after the conclusion of the investigation, the legal aid lawyer can judge whether the client's act constitutes a crime, whether there is any possibility that the client has a reasonable and legitimate defense, whether the client has actually completed the crime, whether the client is only an accessory, and whether there is evidence supporting mitigated punishment. Only after the analysis of the above questions can the legal aid lawyer present a complete, persuasive theory of the case in court.

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See India Criminal Defense Manual