India Criminal Defense Manual - Various Defense Strategies

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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.[1]

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]
2. Act of a Judge acting judicially[3]
3. Act done pursuant to an order or a judgment of a Court[4]
4. Act of a person justified, or believing himself justified, by law[5]
5. Act caused by accident[6]
6. Act likely to cause harm done without criminal intent to prevent other harm[7]
7. Act of a child under 7 years[8]
8. Act of a child above 7 and under 12 years, but of immature understanding[9]
9. Act of a person of unsound mind[10]
10. Act of an intoxicated person[11] and partially exempted[12]
11. Act not known to be likely to cause death or grievous hurt done by consent of the sufferer[13]
12. Act not intended to cause death done by consent of sufferer[14]
13. Act done in good faith for the benefit of a child or an insane person by or by the consent of guardian[15]
14. Act done in good faith for the benefit of a person without consent[16]
15. Communication made in good faith to a person for his benefit[17]
16. Act done under threat of death[18]
17. Act causing slight harm[19]
18. Act done in private defence[20]

The list of defenses described in Chapter IV of the Indian Penal Code can be categorized as follows:

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."[32] 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." [33] 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.[34] 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. [35]

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." [36] 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.[37] 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.[38]

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."[39] 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.[40] 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.[41] 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.[42] However, if the act is clearly wrong, then mistake of fact will not be a defense.[43]

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.[44]

Mistake of law is no defense, i.e. mistake as to the existence of a law or as to what is the law.[45] Those who make a mistake of law must abide by the consequences of the error.[46] Application extends to even those circumstances in which there is no way for the person to have known of the existence of the law.[47] In addition, the law does not have to be published or known outside of India to be eEnforceable.[48]

In King v. Tustipada Mandal, the Court laid out guidline rules for either mistake of fact or mistake of law.[49]

"(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."[50]

Accident

This category 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."[51] Accident is an act that is done without the intent of causing it, and is an act that a reasonable person should not take precautions in doing that act.[52] Another words, an accident occurs out of the ordinary course of things.[53] Example: A is working with an axe when the head flies off and kills someone standing by; if there is no lack of proper caution that was not taken, then the act is excusable.

In Patreswar Basumatary v. State of Assam, two brothers were sleeping in the same bed when one of them in a state of half-sleep felt someone throttling him, picked up a dao and administered a deathly blow that was received by his brother; the Court found the brother's act was not voluntary as the act lacked intention and motive.[54] In R. v. Clarke, a women charged with theft at a super market defended that at the time of the theft she was in a state of absent-mindness from depression which was verified by medical evidence; the Court accepted this defense.[55] In Sita Ram v. State of Rajasthan, the Defendant, a day labourer, who was digging with a spade when another labourer came up too close and was struck in the head; the Court found this was an accident, but still fell under 304A an act of criminal negligence.[56]

In Raja Ram, the Defendant fired shots at his target, but missed and killed an innocent party; the Court found that his case fell within s. 80 read with ss. 96 and 100.[57] In Girish Saikia v. State of Assam, the Defendant's brother tried to stragulate Defendant at night and in response Defendant, fearing imminent death, picked up a piece of bamboo which struck the father who was trying to intervene which killed the father; the Court found Defendant was acting in self-defense as to the brother and the blow to the father was an accident.[58] In Rangaswamy, the Court held that shooting with an unlicensed gun does not bar the Defendant from using s. 80 as a defense.[59] Shooting without knowing the identity of the victim shows a strong preference for a lack of care and caution.[60]

Absence of Criminal Intent

An act intended to prevent others from harm and lacks criminal intent will be a defense even if the act is likely to cause harm.[61] Section 81 of the Indian Penal Code says, "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." Example: A, a ship captain of 100 persons, who finds himself in a situation without fault or negligence that he cannot maneuver without destroying either boat B with 20 persons or boat C with five persons, A will have a defense in choosing the lesser of the two evils if A, in good faith, choose C for the purpose of saving harm. The test is (1) there must exist a grave danger, (2) there must be no choice but to commit the lesser of two evils, even though an innocent party may be harmed, (3) there must be a lack of criminal intent, and (4) the Defendant must rightly choose the lesser of the two evils.[62],[63] If the case rests upon proof of intention, then the Court must have evidence of facts sufficient to support a finding that the intention existed; no doubt can be used to infer intention but is not conclusive.[64] In addition, where the evidence against the Defendant is clear, cogent and reliable, the motive is irrelevant.[65],[66] The nature of the mens rea will depend on the nature of the Act and its provisions.[67],[68] Mens rea is an element in every case except in three cases:

(a) not a criminal case, but which are prohibited by public interest;
(b) public nuisance; and
(c) criminal, but are more a form of enforcing a civil right.

The mens rea is different for each type of offence. For Indian Penal Code sections, 87-89, 91-93, 95, 100, 104 and 106, harm means only physical harm.[69]

In Bostan, an out of uniform Chief Constable was kicked by a sentry as he made his way through a crowd of sentries, the sentry was justified as the kick was made to prevent a greater harm under this section.[70] In Dhania Daji, a person placed poison in his toddy pots to discover who the thief was of his pots and knowing that placing the poison in the pots would cause injury, and then the toddy was drunk and caused injury to a soldier who had purchased the toddy from a vendor; the person was not allowed to use the section 91 defense.[71]

Anyone under the age of seven cannot be prosecuted for a crime. Section 82 of the Indian Penal Code says, "Nothing is an offence which is done by a child under seven years of age." Those under the age of seven are ipso fact, Latin for "by the fact itself" in answer to the prosecution, i.e. the defense would be the Defendant is a child and cannot be prosecuted for the crime.[72] It is the burden of the Defendant to bring to light evidence of the age being under seven.[73] Prosecution of a child will continue even if the child ceases to be a child at the time of trial or punishment.[74],[75]

Anyone under the age of twelve, and above seven with an immature understanding will have a defense. Section 83 of the Indian Penal Code says, "Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion." The burden rests with the Defendant to bring forward to the Court the age and level of maturity of the Defendant and where such evidence is not brought forward, the Court will assume the Defendant assumed to act in the way the Defendant acted.[76] The immaturity is one of intellect and must be exceptional.[77] The Defendant is one who does not know the nature or physical consequences of their actions.[78],[79]

In Ulla Mahaparta, a boy of eleven years of age picked up a knife saying he was going to cut the Deceased to bits and did so, the Court found that the Defendant did what he intended knowing that cutting with a knife would carry out his intentions.[80] However, in A. v. DPP, a boy of eleven years of age picked up a brick, threw the brick at a police vehicle, and ran away; the Court concluded that the boy running away itself was not enough to prove that the boy knew he was committing criminal activity as the situation could also be interpreted as a naughty child running away from a teacher even when the naughty child has not committed criminal activity.[81] In cases related to theft, a child younger than twelve, but older than seven who commits a theft and then turns around and sells the stolen property, the child does not fit into this section (s. 83) as the understanding of selling the stolen property is enough to show a sufficient level of maturity.[82]

Anyone of unsound mind is incapable of knowing acts which are wrong or unlawful. Section 84 of the Indian Penal Code says, "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." This section does not apply if the Defendant knew his acts were wrong, irregardless of whether he knew they were unlawful acts, or knew that his acts were unlawful, irregardless of whether he knew they were wrong.[83] The burden of proving an unsound mind rests on the Defendant.[84],[85],[86],[87][88] The Defendant bears the burden only after the prosecution has proved its case.[89],[90],[91],[92],[93] However, where a history of insanity is discovered during the investigation stage, the burden is on the investigator to subject the Defendant to a medical examination and bring the evidence before the Court, and if this is not done then the benefit of the doubt is given to the Defendant.[94],[95],[96][97] The prosecution does not have to prove that the Defendant knew the consequences of his acts or the Defendant knew the law as these are presumed to be known to every person.[98] An absence of motive is one of the factors to be taken into conisderation.[99][100],[101],[102],[103]

Persons of unsound mind are:

(1) an idiot, i.e. anyone from birth is of non-sane memory[104],[105],[106]
(2) anyone made non compos mentis by illness and only those acts made under the illness[107]
(3) a lunitic, i.e. anyone afflicted by mental disorder at certain periods and vicissitudes[108],[109]
(4) drunks, see s. 85

Elements:

(1) The Defendant must be under the defect at the time of committing the act and not know what he was doing, or if he does know what he is doing then no know that what he was doing was wrong.[110],[111],[112] If he does know then he is responsible.[113] A plea of insanity will not save the Defendant.[114] In making the determination of whether the Defendant was under the defect at the time of committing the act, the Court can take into consideration relevant circumstances such as the behavior before and after committing the act.[115],[116],[117],[118],[119],[120],[121],[122],[123] Admitting the defense of insanity based soley on the character of the crime is dangerous.[124],[125],[126],[127],[128] The mere occurance of prior insanity is not sufficient to demonstrate insanity.[129]
(2) Only the unsoundness of mind that impairs the faculty of the mind will be exempted under this section.[130],[131] The unsoundness of mind would make it so that the Defendant does not know his actions to be wrong or against the law.[132],[133],[134] An agitated does not necessarily imply an effected mental state.[135],[136],[137] Pretend insanity are not cases of insanity.[138],[139] Acts which are barbaric in nature must be punished severely as inhuman acts.[140],[141],[142] Anyone who is not insane, but was under a partial delusion should be treated as if the delusions were real.[143],[144] Intoxication is no excuses, however, intoxication that causes delirium tremens to such a degree that madness is induced, even for a short period, that makes distinguishing from evils is an excuse.[145],[146] Such a defense is only available where the Defendant can no longer control Defendant's drinking.[147]
(3) The Defendant must not understand the nature of the act, i.e. not understand what is wrong or contrary to law.[148],[149] Mere absence of a motive cannot bring Defendant under this section.[150] A sudden impulse with a lack of motive will generally not be enough for this section.[151] Similarly, a lack of motive and making no attempt to leave the scene of the crime is not enough for this section as well.[152] However, in Lakshman, the Defendant was insane for some months prior and made no effort to leave the scene of the crime, the Defendant was afforded a defense under this section.[153] Where an examination shows that an unsound mind may have existed and is contradicted by testimony from close relations, then this section will not apply.[154] The difference between medical insanity and legal insanity, is that medical insanity refers to the Defendant's ability to congnize his acts on others whereas legal insanity Defendant's ability to cognize his acts in relation to himself.[155] However, for legal insanity there must first be medical insanity.[156]

In cases where the Defendant has committed multiple murders under mental derangement the Court has held that (i) absent motive, (ii) absent secrecy, (iii) want of pre-arrangement, and (iv) want of accomplices, the circumstances were insufficient to support an inference of unsound mind.[157] Other mental illness' are exempted including paranoid schizophrenia,[158] and automatism.[159]

The defense of insanity must be made by the Defendant.[160] The Defendant's burden is to probablise the Defendant's defense, but merely showing a medical certification is not enough.[161] However, the burden of the prosecution to make the case beyond a shadow of doubt does not change.[162] The Defendant's defense of insanity may be recognized by the facts.[163] However, mere eccentric behaviour is not enough to prove insanity based on the facts.[164]

Anyone who is intoxicated against their will and are not capable of making reasonable judgements have a defense. Section 85 of the Indian Penal Code says, "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." The person must be incapable of self-restraint.[165] Voluntary intoxication is no defense.[166] However, voluntary intoxication can be factor where do to voluntary intoxication, the Defendant is not capable of forming the specific intent of the crime, the degree of the crime can be reduced.[167] Also where do to voluntary intoxication, the Defendant has formed a diseased condition of the mind that impairs the Defendant's ability to recognize what is wrong or against the law, the Defendant would have a defense.[168]

Anyone intoxicated who commits an offence will be treated the same as if they were not intoxicated. Section 86 of the Indian Penal Code says, "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." Presumption is in regards to knowledge and not in regards to intention.[169] This presumption can be rebutted by showing that at the time of the crime that his mind was so affected that he was incapable of forming his own intentions in regards to the requisite of the charge.[170]

Any act done in good faith for the benefit of another that is not intended to cause death. Section 88 of the Indian Penal Code says, "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." Example, A, a surgeon, acting in good faith, but knowing that a particular procedure carries a high degree of fatality, performs the operation on B who has severe pain and consents to the procedure. A has committed no offence.[171] Similarly, those being attacked by beasts and can only be rescued by someone firing a shot that could be fatal to the attacked should not be punished.

Any act done in good faith for the benefit of a child or a person who is insane (or by consent of gaurdian) that is not intended to cause death. Section 89 of the Indian Penal Code says, "Nothing which is done in good faith for the benefit of a person under twelve years of age, or 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 : Provisos-First: - That this exception shall not extend to the intentional causing of death, or to the attempting to cause death; Secondly: - That this exception shall not extend to 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; Thirdly: - That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death of grievous hurt, or the curing of any grievous disease of infirmity; Fourthly:- That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend." This section empowers gaurdians of children under twelve and insane persons to consent for their benefit on the infliction of harm on the child or insane person made in good faith.

In cases where sections 88 and 89 are not applicable, a good faith act without consent can be done for the benefit of another. Section 92 of the Indian Penal Code says, "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: Provisos - First-That this exception shall not extend to the intentional causing of death, or the attempting to cause death; Secondly- That this exception shall not extend to 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; Thirdly: -That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; Fourthly:-That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend." This section is aimed at cases that do not fit into sections 88 and 89, and are aimed prinipally at medical practitioners. These are situations where there is a temporary gaurdianship that has happened. Examples:

(a) A is severely injured and cannot judge for himself. No one is around except B a medical doctor who performs a life saving procedure in good faith for the benefit of A. B has committed no offence.
(b) A is being mawled by a dangerous animal. B does not have a clear line of shot, but if B does not act, A will not survive. B not intending to kill A and acting for the benefit of A, B fires and mortally wounds A. B has committed no offence.
(c) A, a young child, is trapped in a fire. B also in the room sees no way out except out of the window where there are people holding out a blanket to catch the child. Even knowing that the fall is likely to kill the child, by throwing the child below, B has not committed no offence.

Good faith communications. Section 93 of the Indian Penal Code says, "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." Example, A, a surgeon, in good faith tells B that B's son will not live. B dies from shock. A has committed no offence. The communication must be made in good faith and for the benefit of the person to whom it is made.[172]

Acts committed under threats can be excused. Section 94 of the Indian Penal Code says, "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 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." A person can be excused for acts committed under threat except (1) murder,[173] or (2) offences against the State.[174] The burden is on the Defendant to bring such evidence forward, as mere pressure or temptation will not be enough and must be a real fear of instant death.[175]

Consent

A consented act is not intended or known to be likely to cause death or harm. Section 87 of the Indian Penal Code says, "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." Example, A and B agree to wrestle for fun. This agreement implies that in the course of wrestling, any injuries that are sustained within the rules by the other are consented and no offences occur. However, this section does not allow consent to anything intended, or known to be likely to cause death or grievous hurt.[176],[177]

Consent given under duress, by insane person, or child is not consent. Section 90 of the Indian Penal Code says, "A consent is not such a consent as it intended by any section of this Code, 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 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 unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age." Although not defining what consent is, this section describes consent not given when:

(1) by a person under fear of injury and the person obtaining the consent knows or has reason be believe the consent is given under fear of injury;
(2) by a person under a misconception of fact;
(3) by a person of unsound mind and is unable to understand the consent;
(4) by a person who is intoxicated and is unable to understand the consent;
(5) by a person under twelve years of age;

Consent requires the act to be done deliberately and with knowledge of the act or with knowledge of the nature of the act.[178] Consent is not the same as submission as every consent invovles submission, but a submission alone does not make consent.[179] Lack of knowledge in a submission does not make a valid consent.[180]

Consent to rape is no consent and a rescuer is justified in the use of force.[181],[182]

Consent given under a misconception is no consent i.e., if the party given the consent is aware of the misconception then no consent is present; however, an honest misconception by both parties does not invalidate the consent.[183] Similarly, consent obtained by misrepresentation leading to a misconception of facts will not be a valid consent.[184],[185]

Trifling Acts

Acts which cause slight harm are trifling acts. Section 95 of the Indian Criminal Code says, "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." This covers those instances that are within the the Penal Code, but are small in impact that they do not rise to the level of prosecution. Example, dipping ink in another man's ink, assualt that covers a man in water as a bike drives by a puddle, or pressing aginst someone on a train. As memeber of society some degree of interaction is assumed and cannot be prosecuted if the injury is de minimus. This section also covers those instances that are not accidental, but intentional or known to cause harm.[186]

In Narayanan v. State of Kerala, protestors outside of a liquor shop were excused under this section even though they did prevent some people from going inside of the shop.[187][188] In Anoop Krishan Sharma v. State of Maharashtra, the Defendant locked the Complainant inside of a factory for a very short period of time and although all of the elements of wrongful confinement were present, only a minimal harm was caused and fell within section 95.[189]

Acts considered trivial included when a Defendant took pods (almost valueless) from a tree on Government waste land,[190] theft of a cheque with no value,[191] and harm to a Plaintiff's reputation for traveling with the wrong ticket,[192].

Acts not considered trivial where a dismissed policeman gave a blow across the chest with an umbrella to the District Superintendent of Police for rejecting his application to reconsider his case,[193] where the Defendant tore up a piece of paper that showed the Defendant's debt to the Prosecutor even though it was not stamped and therefore not a legal document,[194] and a man of respect was taken by the ear,[195].

Private Defence

96-106


Section 96 of the Indian Criminal Code says, "Nothing is an offence which is done in the exercise of the right to private defence." Only acts which repel unlawful aggression will be given a defense, as mere words are not enough to constitute a defense to the offense, i.e. defendant cannot claim a defense that aggressive words incited defendant to violence.

In Munnery Khan v. State, the Deceased insults Defendant’s wife so Defendant beats deceased to death; the Court held that self defense was not allowed.[196] In Jagdish Chandra v. State of Rajasthan, a hostile and quick tempered Deceased fires a gun at Defendant and Defendant returned a deadly shot; the Court allowed self defense.[197] In Kuduvakuzinyil Sudhakaran v. State, the Deceased was neither unarmed or aggressor self defense not allowed.[198] In Hakim Singh v. State of M.P., Defendant fires a gun at an unarmed Deceased and when Deceased picks up a gun and wounds defendant, Defendant returns deadly fire; the Court did not allow self defense.

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.[199]


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.

See India Criminal Defense Manual

References

  1. ↑ Section 473 of The Code of Criminal Procedure
  2. ↑ Section 76 of the Indian Penal Code
  3. ↑ Section 77 of the Indian Penal Code
  4. ↑ Section 78 of the Indian Penal Code
  5. ↑ Section 79 of the Indian Penal Code
  6. ↑ Section 80 of the Indian Penal Code
  7. ↑ Section 81 of the Indian Penal Code
  8. ↑ Section 82 of the Indian Penal Code
  9. ↑ Section 83 of the Indian Penal Code
  10. ↑ Section 84 of the Indian Penal Code
  11. ↑ Section 85 of the Indian Penal Code
  12. ↑ Section 86 of the Indian Penal Code
  13. ↑ Section 87 of the Indian Penal Code
  14. ↑ Section 88 of the Indian Penal Code
  15. ↑ Section 89 of the Indian Penal Code
  16. ↑ Section 92 of the Indian Penal Code
  17. ↑ Section 93 of the Indian Penal Code
  18. ↑ Section 94 of the Indian Penal Code
  19. ↑ Section 95 of the Indian Penal Code
  20. ↑ Sections 96-106 of the Indian Penal Code
  21. ↑ Section 77 of the Indian Penal Code
  22. ↑ Section 78 of the Indian Penal Code
  23. ↑ Section 76 of the Indian Penal Code
  24. ↑ Section 79 of the Indian Penal Code
  25. ↑ Section 78 of the Indian Penal Code
  26. ↑ Section 81-86 of the Indian Penal Code
  27. ↑ Section 92-94 of the Indian Penal Code
  28. ↑ Section 87 of the Indian Penal Code
  29. ↑ Section 90 of the Indian Penal Code
  30. ↑ Section 95 of the Indian Penal Code
  31. ↑ Section 96-106 of the Indian Penal Code
  32. ↑ Section 77 of the Indian Penal Code
  33. ↑ Section 78 of the Indian Penal Code
  34. ↑ Section 105 of The Indian Evidence Act
  35. ↑ Bai Ramilaben v. State of Gujarat, 1991 r LJ 2219 (Guj).
  36. ↑ Section 76 of the Indian Penal Code
  37. ↑ Emperor v. Gopalia Kallaiya, (1923) 26 Bom LR 138.
  38. ↑ Sheo Surun Sahai v. Mohomed Fazil Khan, (1868) 10 WR (Cr) 20.
  39. ↑ Section 79 of the Indian Penal Code
  40. ↑ Levett, (1839) Cro Car 538.
  41. ↑ State of Orissa v. Khora Ghasi, 1978 Cr LF 1305 (Ori).
  42. ↑ Keso Sahu v. Saligram, 1977 Cr LJ 1725 (Ori).
  43. ↑ CROSS & JONES : INTRODUCTION TO CRIMINAL LAW, 9th Edn., pp. 58-59.
  44. ↑ Bhawoo Jivaji v. Mulji Dayal, (1888) 12 Bom 377. See Chirangi, (1952) Nag 348.
  45. ↑ Tustipada Mandal, (1950) Cut 75.
  46. ↑ Fischer, (1891) 14 Mad 342, 354, FB.
  47. ↑ State of Maharashtra v. M.H. George, 1965 (1) Cr LJ 641 : AIR 1965 SC 722.
  48. ↑ Mayer Hans George, (1964) 67 Bom LR, 583: AIR 1965 SC 722 : (1965) 1 Cr LJ 641.
  49. ↑ King v. Tustipada Mandal, (1950) Cut. 75; quoting R. v. Prince, (1683) 2 Ch. C. 154.
  50. ↑ Id.
  51. ↑ S. 80 Indian Penal Code
  52. ↑ Stephen's Digest of Criminal Law, 9th Edn., Art. 316.
  53. ↑ Fenwick v. Schmalz, (1868) LR 3 CP 313, 316.
  54. ↑ Patreswar Basumatary v. State of Assam, 1989 Cr LJ 196 (Gau).
  55. ↑ R. v. Clarke, (1972) 1 All ER 219; Bratty v. A.G., (1961) 3 All ER 523; State of Kerala v. Bahuleyan, 1986 Cr LJ 1579 : AIR (1986) 4 SCC 124. (Explains the burden of the prosecution under section 80 of the Indian Penal Code.)
  56. ↑ Sita Ram v. State of Rajasthan, 1998 Cr LJ 287 (Raj)
  57. ↑ Raja Ram, 1977 Cr LJ NOC 85 (All); Khora Ghasi, 1978 Cr LJ 1305 (Orissa) under s. 79 of the Indian Penal Code.
  58. ↑ Girish Saikia v. State of Assam, 1993 Cr LJ 3808 (Gau).
  59. ↑ Rangaswamy, (1952) Nag 93).
  60. ↑ Bhupendra Singh A Chudasama v. State of Gujarat, AIR 1997 SC 3790 : 1998 Cr LJ 57.
  61. ↑ Stephen's Digest of Criminal Law, 9th Edn., Art 11.
  62. ↑ Southwark London Borough Council v. Williams, (1971) Ch 734, (1971) 2 All ER 175.
  63. ↑ Wood v. Richards, (1971) RTR 201.
  64. ↑ Ramchandra Gujar, (1937) 39 Bom LR 1184, (1938) Bom 114.
  65. ↑ Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 : 1956 Cr LJ 827.
  66. ↑ Kusta Balsu Kandnekar v. State of Goa, 1987 Cr LJ 89 Bom.
  67. ↑ Mayer Hans George, (1964) 67 Bom LR 583, AIR 1965 SC 722 : (1965) 1 Cr LJ 641.
  68. ↑ Nathulal, AIR 1966 SC 43 : 1966 Cr LJ 71.
  69. ↑ Veeda Menezes v. Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 : 68 Bom LR 629.
  70. ↑ Bostan, (1892) 17 Bom 626.
  71. ↑ Dhania Daji, (1868) 5 BHC (Cr C) 59.
  72. ↑ Lukhini Agradanini, (1874) 22 WR (Cr) 27.
  73. ↑ Hiralal, 1977 Cr LJ 1921 : AIR 1977 SC 2236.
  74. ↑ Makhulshah, (1886) 1 Weir 470.
  75. ↑ Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217.
  76. ↑ Id., Hiralal.
  77. ↑ Lukhini Agradanini, (1874) 22 WR (Cr) 27, 28.
  78. ↑ Ulla Mahapatra, (1950) Cut 293.
  79. ↑ Mussamut Aimona, (1864) 1 WR (Cr) 43.
  80. ↑ Id., Ulla Mahaparta
  81. ↑ A. v. DPP, (1991) COD 442 (DC).
  82. ↑ Krishna, (1883) 6 Mad 373.
  83. ↑ Geron Ali, (1940) 2 Cal 329.
  84. ↑ Dahyabhai, 1964 (2) Cr LJ 472 (SC).
  85. ↑ Lonimohon Das, 1974 Cr LJ 1186 (Gau).
  86. ↑ Kesheorao, 1979 Cr LJ 403 (Bom).
  87. ↑ Lala Sk., 1983 Cr LJ 1675 (Cal).
  88. ↑ Balu Ganput, 1983 Cr LJ 1769 (Bom).
  89. ↑ Paramal Raman v. State of Ker, 1992 Cr LJ 176 Ker.
  90. ↑ Bai Bamilaben v. State of Gujarat, 1991 Cr LJ 2219 Guj.
  91. ↑ Shama Tudu v. State, 1987 Cr LJ 618 Orissa. The Orissa High Court cited the following cases that accepted an insanity plea: Mitu Khadia v. State of Orissa, 1983 Cr LJ 385: 1983 Cut LR (Cr) 108; Khageshwar Pujari v. State of Orissa, 1984 Cr LJ 1108 : 1984 (1) Orissa LR 142; Sundar Bairagi v. State, 1984 Cr LJ 124; Bata v. State, 1985 (2) Orissa LR 398. The insanity plea was not accepted in the following cases: Nakul Chandra v. State of Orissa, 1982 Cr LJ 2158 : (1982) 54 Cut LJ 195; Kusa Majhi v. State, (1985) 59 Cut LT 203 : 1985 (1) Crimes 520 : 1985 Cr LJ 1460 : AIR 1985 SC 1409. Prosecution proved its case in the following case: State of M.P. v. Digvijay Singh, AIR 1981 SC 1740 : 1981 Cr LJ 1278.
  92. ↑ Sheralli Walli Md v. State of Maharashrta, AIR 1972 SC 2443 : 1972 Cr LJ 1523.
  93. ↑ Qyami Ayatu v. State of M.P., AIR 1974 SC 216 : 1974 Cr LJ 305.
  94. ↑ Sanna Eranna, 1983 Cr LJ 619 (Kant).
  95. ↑ M. Parvaiah, 1985 Cr LJ 1824 (AP).
  96. ↑ Kuttappan, 1986 Cr LJ 271 (Ker).
  97. ↑ Bahadur, (1927) 9 Lah 371.
  98. ↑ Bhikari, AIR 1966 SC 1.
  99. ↑ Subbigadu v. Emperor, AIR 1925 Mad 1238 : 1926 (27) Cr LJ 46.
  100. ↑ Ujagar Singh v. State, AIR 1954 Pepus 4 : 1953 Cr LJ 1859.
  101. ↑ Amrit Bhushan Gupta v. Union of India, AIR 1977 SC 608 : 1977 Cr LJ 376.
  102. ↑ Ram Bharose v. State of M.P., 1974 Jab LJ 348.
  103. ↑ Peeru Singh v. State of M.P., 1987 Cr LJ 1781 MP.
  104. ↑ Archbold, 35th Edn., pp. 31-32.
  105. ↑ Russell, 12th Edn., Vol. I, p. 105.
  106. ↑ 1 Hale P.C. 34.
  107. ↑ 1 Hale P.C. 30.
  108. ↑ Russell, 12 Edn. Vol. I, p. 103.
  109. ↑ 1 Hale PC 31.
  110. ↑ M'Naughton's case, (1843) 4 St Tr (NS) 847, 10 Cl & F 200.
  111. ↑ Tola Ram, (1927) 8 Lah 684.
  112. ↑ Jaganath Das v. State, 1991 Cr LJ (NOC) 32 Cal.
  113. ↑ Harka, (1906) 26 AWN 193.
  114. ↑ Nota Ram, (1866) PR No. 56 of 1866.
  115. ↑ Govindaswami Padayachi, (1952) Mad 479.
  116. ↑ Ahmadullah, (1961) 3 SCR 583 : (1961) 2 Cr LJ 43 : AIR 1961 SC 998.
  117. ↑ Dahyabhai, AIR 1964 SC 1563 : 1964 (2) Cr LJ 472.
  118. ↑ Narain v. State, 1991 Cr LJ 1610 (insanity at the time of the act was proved).
  119. ↑ A.G. Bhagwat v. U.T. Chandigarh, 1989 Cr LJ 214 P&H (insanity at the time of the act was not proved).
  120. ↑ Ajaya Mahakud v. State, 1993 Cr LJ 1201 (Ori).
  121. ↑ S. Sunil Sandeep v. State of Karnataka, 1993 Cr LJ 2554 (Kant).
  122. ↑ State of Punjab v. Mohinder Singh, (1983) 2 SCC 274 : 1983 SCC (Cri) 402 : 1983 Cr LR (SC) 187.
  123. ↑ Krishan Dutt v. State of H.P., 1992 Cr LJ 1065 HP.
  124. ↑ S.W.Mohammed, 1072 Cr LJ 1523 : AIR 1972 SC 2443.
  125. ↑ Oyami Ayatu, 1974 Cr LJ 305 : AIR 1974 SC 216.
  126. ↑ Gundadhar Mondal, 1979 Cr LJ NOC 178 (Cal).
  127. ↑ Kesheorao 1979 Cr LJ 403 (Bom).
  128. ↑ Munilal Gupta v. State, 1988 Cr LJ 627 (Del).
  129. ↑ Meh Ram v. State, 1994 Cr LJ 1897 (Raj).
  130. ↑ Kader Hasyer Shah, (1896) 23 Cal 604, 607.
  131. ↑ Kalicharan, (1974) Nag 226.
  132. ↑ Gedka Goala, (1937) 16 Pat 333.
  133. ↑ Raghu Pradhan v. State of Orissa, 1993 Cr LJ 1159 (Ori).
  134. ↑ Ashiruddin Ahmed, 50 Cr LJ 225 (Cal).
  135. ↑ Gourishankar, (1965) 68 Bom LR 236.
  136. ↑ Ashok Dattatraya v. State of Maharashtra, 1993 Cr LJ 3450 (Bom).
  137. ↑ Amruta v. State of Maharashtra, 1996 Cr LJ 1416 (Bom).
  138. ↑ Nathu Bapu Mhaskar v. State of Maharashtra, 1996 Cr LJ 2121 (Bom).
  139. ↑ Tola Ram v. State of Rajasthan, 1996 Cr LJ 8 (Raj).
  140. ↑ Paras Ram v. State of Punjab, (1981) 2 SCC 508 : 1981 SCC (Cr) 515.
  141. ↑ Gulab Manik Surwase v. State of Maharashtra, 2001 Cr LJ 4302 (Bom).
  142. ↑ Laxmandas Mangaldas Manikpuri v. State, 1997 Cr LJ 950 (Bom).
  143. ↑ M'Naughton, (1843) 4 St Tr (NS) 847.
  144. ↑ Ghatu Pramanik, (1901) 28 Cal 613.
  145. ↑ Davis, (1881) 14 Cox 563.
  146. ↑ Bheleka Aham, (1902) 29 Cal 493.
  147. ↑ R. v. Tandy, (1989) 1 All ER 267 CA.
  148. ↑ Id., M'Naughton.
  149. ↑ Mani Ram, (1926) 8 Lah 114.
  150. ↑ Kalicharan, (1947) Nag 226.
  151. ↑ Ganesh Shrawan, (1969) 71 Bom LR 643.
  152. ↑ S.W. Mohammed, 1972 Cr LJ 1523 : AIR 1972 SC 2443. See Mitu Khadia, 1983 Cr LJ 1385 (Ori).
  153. ↑ 1973 Cr LJ 110 (Mad). See Prakash, 1985 Cr LJ 196 (Bom); Krishan Dutt v. State of H.P., 1992 Cr LJ 1065 (HP).
  154. ↑ Velusamy, 1985 Cr LJ 981 (Mad).
  155. ↑ Baswant Rao, (1948) Nag 711.
  156. ↑ Sukru Sa, 1973 Cr LJ 1323 (Ori); Kesheorao, 1979 Cr LJ 403 (Bom); Lala Sk, 1983 Cr LJ 1675 (Cal); Rajan, 1984 Cr LJ 874 (Ker); Kusa Majhi, 1985 Cr LJ 1460 (Ori); Sudhir Ch Biswas v. State, 1987 Cr LJ 863 Cal; Siddheswari Bora, 1981 Cr LJ 1005 (Gau); State of Assam v. Inush Ali, 1982 Cr LJ 1044 (Gau).
  157. ↑ Gedka Goala, (1937) 16 Pat 333; Niman Sha v. M.P., 1996 Cr LJ 3395 (MP), (the plea of insanity was accepted where a Defendant killed two womens heads with an axe without reason and the evidence showed earlier similar attacks of disorder); State of Jharkhand v. Madras Nayak, 2003 Cr LJ NOC 197 : 2003 AIR Jhar HCR 653 (the insanity pleas was accepted where the Defendant killed seven people, including his wife and two children, and some cattle with an axe without provocation and the evidence showed he was not of sound mind).
  158. ↑ Jagannath Das v. State, 1991 Cr LJ (NOC) 32 (Cal); Shrikant Anandrao Bhosale v. State of Maharashtra, AIR 2002 SC 3399; but there are circumstances where the plea of paranoid is not enough as a defense, S.K. Nair v. State of Punjab, AIR 1997 SC 1537 : 1997 Cr LJ 772 : (1997) 1 SCC 141, (the plea of paranoid was rejected where the Defendant understood the effects of his acts).(
  159. ↑ R. v. Kemp, (1956) 3 All ER 249 : (1956) 3 WLR 724; R. v. Quick, (1973) 3 All ER 347, (the law makes no distinction between physical or mental conditions so long as the effect is on the condition of the mind); R. v. Hennessy, (1989) 2 All ER 9 CA; Regina v. Burgess, (1991) 2 WLR 1206 (CA).
  160. ↑ Shivraj Singh v. State of M.P., 1975 Cr LJ 1458; State v. E. Lemon, AIR 1970 Goa 1; Balagopal Re, 1976 Cr LJ 1978; Dulal Nayak v. State, 1987 Cr LJ 1561 Cal; Omkarlal v. State of M.P., 1987 Cr LJ 1289 MP.
  161. ↑ Sankaran v. State, 1994 Cr LJ 1173 (Ker); T.N. Lakshmiah v. State of Karnataka, (2002) 1 SCC 219; T.N. Lakshmiah v. State of Karnataka, AIR 2001 SC 3828; Khuraiam Somai Singh v. State, 1997 Cr LJ 567 (Guj), (burden of proof principle statements); S.K. Nair v. State of Punjab, 1997 Cr LJ 772: AIR 1997 SC 1537; Genda Oraon v. State of Bihar, 2003 Cri LJ NOC 4 (Jhar) : (2002) JLJR 584.
  162. ↑ Kuziyaramadiyil Madhavan v. State, 1994 Cr LJ 450 (Ker).
  163. ↑ Ratan Lal v. State of M.P., AIR 1971 SC 778 : 1971 Cr LJ 654; Tukappa Tamanna Lingardi v. State of Maharashtra, 1991 Cr LJ 2375 (Bom).
  164. ↑ Narayan Chandra Dey v. State, 1988 Cr LJ 387 (Cal).
  165. ↑ Mobeni Minji, 1982 Cr LJ NOC 39 (Gau).
  166. ↑ Bodhee Khan, (1866) 5 WR (Cr) 79; Boodh Dass, (1866) PR No. 41 of 1866.
  167. ↑ Director of Public Prosecutions v. Beard, (1920) AC 479; Ramsingh, (1938) Nag 305; Samman Singh, (1941) 24 Lah 39; D.P.P. v. Majewski (1976) 2 All ER 142); Mathai Mathew, 1952 Cr LJ 1304 (TC); Basdev v. State of Pepsu, 1956 Cr LJ 919(2) : AIR 1956 SC 488
  168. ↑ Id. Davis; Id., D.P.P. v. Board; Id., Director of Public Prosecutions v. Beard.
  169. ↑ Dil Mohammad, (1941) 21 Pat 250; Basdev v. State of Pepsu, 1956 Cr LJ 919 (2); State of Maharashtra v. Ashok Yashwant, 1987 Cr LJ 1416 (Bom); Pal Singh, (1917) PR No. 28 of 1917; Judagi Malah, (1929) 8 Pat 911.
  170. ↑ Samman Singh, (1941) 24 Lah 39; Basdev v. State of Pepsu, (1956) SCR 363 : AIR 1956 SC 488; Pidika Janu v. State of Orissa, 1989 Cr LJ (NOC) 104.
  171. ↑ R.P. Dhanda (Dr.) v. Bhurelal, 1987 Cr LJ 1316 MP.
  172. ↑ Veeda Menezes v. Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 : 68 Bom LR 629.
  173. ↑ Umadasi Dasi, (1924) 52 Cal 112, (abetment is not included under murder and can be excused); Karu, (1937) Nag 524; R. v. Howe, (1987) 1 All ER 770 HL, (duress not available to someone charged with murder); Bachchan Lal, 1957 Cr LJ 344.
  174. ↑ Maganlal and Motilal, (1889) 14 Bom 115
  175. ↑ Devji Govindji, (1895) 20 Bom 215, 222, 223; R. v. Sharp, (1987) 3 All ER 103 CA, (this section will not apply to those who voluntarily join a criminal organisation or gang.
  176. ↑ R v. Laskey, (1993) 2 WLR 556 (HL).
  177. ↑ R. v. Powell (Jason Wayne), (2002) EWCA Crim 661 : (2002) 2 Cr App R (S) 117, [CA (Crim Div.)]
  178. ↑ Lock, (1872) LR 2 CCR 10, 11.
  179. ↑ Day, (1841) 9 C & P 722, 724.
  180. ↑ Lock, (1872) LR 2 CCR 10, 14.
  181. ↑ Prakash Chandra v. State of Rajasthan, 1991 Cr LJ 2566 (Raj).
  182. ↑ State of Orissa v. Nirupma Panda, 1989 Cr LJ 621 Orissa.
  183. ↑ Baboolun Hijrah, (1866) 5 WR (Cr) 7.
  184. ↑ Parshottam, (1962) 64 Bom LR 788.
  185. ↑ Poonai Fattemah, (1869) 12 WR (Cr) 7.
  186. ↑ Veeda Menezes v. Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 : 68 Bom LR 629/
  187. ↑ Narayanan v. State of Kerala, 1987 Cr LJ 741 Ker.
  188. ↑ Attappa Re, AIR 1951 Mad 759: 1951 (2) Cr LJ 716.
  189. ↑ Anoop Krishan Sharma v. State of Maharashtra, 1992 Cr LJ 1861 (Bom)
  190. ↑ Kasyabin Ravji, (1868) 5 BHC (Cr C) 35.
  191. ↑ Ethirajan, 1955 Cr LJ 816.
  192. ↑ South Indian Railway Co. v. Ramakrishna, (1889) 13 Mad 34.
  193. ↑ Sheo Gholam Lalla, (1875) 24 WR (Cr) 67.
  194. ↑ Ramasami, (1888) 12 Mad 148.
  195. ↑ Shoshi Bhusan Mukerjee v. Walmsley, (1897) 1 CWN cxxxiv.
  196. ↑ AIR 1971 SC 1491 : (1970) 2 SCC 480.
  197. ↑ 1987 Cr LJ 649 Raj.
  198. ↑ (1995) 1 Cr LJ 721 (Ker).
  199. ↑ State of Orissa v. Bhagban Barik, (1987) 2 SCC 498 : AIR 1987 SC 1265 : 1987 Cr LJ 1115. The Court relied on Russel On Crimes, 76 (Vol. 1).
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