21. “Public Servant”.

The words “public servant” denote a person falling under any of the descriptions hereinafter
following; namely-
 Every Commissioned Officer in the Military, Naval or Air Forces of India;
 Every Judge including any person empowered by law to discharge, whether by
himself or as a member of any body of persons, any adjudicatory functions;

 Every officer of a Court of Justice (including a liquidator, receiver or commissioner)

whose duty it is as such officer, to investigate or report on any matter of law or fact,
or to make, authenticate, or keep any document, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath, or to interpret,
or to preserve order in the Court, and every person specially authorized by a Court of
Justice to perform any of such duties;

 Every juryman, assessor, or member of a panchayat assisting a Court of Justice or

public servant;
 Every arbitrator or other person to whom any cause or matter has been referred for
decision or report by any Court of Justice, or by any other competent public
authority;
 Every person who holds any office by virtue of which he is empowered to place or
keep any person in confinement;
 Every officer of the Government whose duty it is, as such officer, to prevent offences,
to give information of offences, to bring offenders to justice, or to protect the public
health, safety or convenience;
 Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property on behalf of the Government, or to make any survey, assessment or contract
on behalf of the Government, or to execute any revenue process, or to investigate, or
to report, on any matter affecting the pecuniary interests of the Government, or to
make, authenticate or keep any document relating to the pecuniary interests of the
Government, or to prevent the infraction of any law for the protection of the
pecuniary interests of the Government;
 Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property, to make any survey or assessment or to levy any rate or tax for any secular
common purpose of any village, town or district, or to make, authenticate or keep any
document for the ascertaining of the rights of the people of any village, town or
district;
 Every person who holds any office in virtue of which he is empowered to prepare,
publish, maintain or revise an electoral roll or to conduct an election or part of an
election;
 Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for
the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a
Central, Provincial or State Act or a Government company as defined in section 617
of the Companies Act, 1956 (1 of 1956).

22. “Movable property”.

The words “movable property” are intended to include corporeal property of every
description, except land and things attached to the earth or permanently fastened to anything
which is attached to the earth.

23. “Wrongful gain”.

“Wrongful gain” is gain by unlawful means of property, which the person gaining is not
legally entitled. “Wrongful loss”.
“Wrongful loss” is the loss by unlawful means of property to which the person losing it is
legally entitled.
Gaining wrongfully, losing wrongfully.
A person is said to gain wrongfully when such person retains wrongfully, as well as when
such person acquires wrongfully. A person is said to lose wrongfully when such person is
wrongfully kept out of any property as well as when such person is wrongfully deprived of
property.

24. “Dishonestly”.
Whoever does anything with the intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that thing “dishonestly“.

25. “Fraudulently”.
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not
otherwise.

28. “Counterfeit”.
A person is said to “counterfeit” who causes one thing to resemble another thing, intending
by means of that resemblance to practise deception, or knowing it to be likely that deception
will thereby be practised.

Explanation 1-
It is not essential to counterfeiting that the imitation should be exact.
Explanation 2-
When a person causes one thing to resemble another thing, and the resemblance is such that a
person might be deceived thereby, it shall be presumed, until the contrary is proved, that the
person so causing the one thing to resemble the other thing intended by means of that
resemblance to practise deception or knew it to be likely that deception would thereby be
practised.

29. “Document”.

The word “document” denotes any matter expressed or described upon any substance by
means of letters, figures, or marks, or by more than one of those means, intended to be used,
or which may be used, as evidence of that matter.
Explanation 1-
It is immaterial by what means or upon what substance the letters, figures or marks are
formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.
Illustrations-
A writing expressing the terms of a contract, which may be used as evidence of the contract,
is a document.
A cheque upon a banker is a document.
A power-of-attorney is a document.
A map or plan which is intended to be used or which may be used as evidence, is a document.
A writing containing directions or instructions is a document.

30. “Valuable security”.

The words “valuable security” denote a document which is, or purports to be, a document
whereby any legal right is created, extended, transferred, restricted, extinguished or released,
or where by any person acknowledges that he lies under legal liability, or has not a certain
legal right.

Illustration-
A writes his name on the back of a bill of exchange. As the effect of this endorsement is
transfer the right to the bill to any person who may become the lawful holder of it, the
endorsement is a “valuable security”.

33. “Act”, “Omission”.

The word “act” denotes as well a series of acts as a single act: the word “omission” denotes
as well as series of omissions as a single omission.

Section 34
Section 34 of the Indian Penal Code lays down the principle of joint criminal liability. This
section does not create any offence but establishes a rule of evidence. Common means
something which is shared by all, and intention is something which is seen from the overt act
of a person.
The essential elements of section 34 of IPC are:-
1. There must be some act which is criminal in nature.
2. The act must be done by two or more persons.
3. The act done by persons must be with the common intention of all.
4. Every person who is involved in that act is liable for such act.
5. Every person shall be liable as if he has done that act alone.
Common Intention, Joint Liability
Common intention refers to the sharing of the mind. To constitute joint liability under section
34, it is essential that there should be prior meeting of minds. Before committing a criminal
act, the persons involved in the act must know about the act. It is necessary for their minds
to meet.
The meeting of mind may also develop on the spot of crime. It isn’t necessary that it should
take place at the time of planning.
For example, four persons plan to beat A near riverside. And as soon as they reach the spot to
beat A, they found a person B, who is enemy of A. After knowing their plan, B gets along
with those four persons in order to beat A. Here B has joined them on the spot, but he is
sharing common intention with all.
Joint Liability, Liability of All
All the persons who share common intention and are all involved in the act are jointly liable
for the crime. It is immaterial that what amount of participation they have in the act, but their
liability is equal to that of the main offender.
In Barendra Kumar Ghose vs Emperor, 1925 The court held that they also serve who stand
and wait. It is not necessary that the participation of all persons shall be equal. One may do
more, and one may do less. But that doesn’t mean that the person did less shall be free from
the liability. His liability is the same.
For example, Five persons A, B, C, D, and E planned to rob a bank. Four of the members of
the group that is A, B, C, and D, went inside the bank, and E was standing at the gate to
aware his partners on the arrival of police. Here the act of E is nothing but standing at the
gate of the bank, but still, he is responsible for the act in the same manner as everyone is.
Note: It is not necessary for a person to be physically present at the place of crime.

Section 35.
Whenever an act, which is criminal only by reason of its being done with a criminal
knowledge or intention, is done by several persons, each of such persons who joins in the act
with such knowledge or intention is liable for the act in the same manner as if the act were
done by him alone with that knowledge or intention.

36. Effect caused partly by act and partly by omission.

Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an
omission, is an offence, it is to be understood that the causing of that effect partly by an act
and partly by an omission is the same offence.

Illustration-
A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by
beating Z. A has committed murder.

37. Co-operation by doing one of several acts constituting an offence.

When an offence is committed by means of several acts, whoever intentionally co- operates
in the commission of that offence by doing any one of those acts, either singly or jointly with
any other person, commits that offence.
Illustrations-
(a) A and B agree to murder Z by severally and at different times giving him small doses of
poison. A and B administer the poison according to the agreement with intent to murder Z. Z
dies from the effects of the several doses of poison so administered to him. Here A and B
intentionally co-operate in the commission of murder and as each of them does an act by
which the death is caused, they are both guilty of the offence though their acts are separate.
(b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternatively for six
hours at a time. A and B, intending to cause Z’s death, knowingly co-operate in causing that
effect by illegally omitting, each during the time of his attendance, to furnish Z with food
supplied to them for that purpose, Z dies of hunger. Both A and B are guilty of the murder of
Z.

38. Persons concerned in criminal act may be guilty of different offences.

Where several persons are engaged or concerned in the commission of a criminal act, they
may be guilty of different offences by means of that act.
Illustration-
A attacks Z under such circumstances of grave provocation that his killing of Z would be
only culpable homicide not amounting to murder B, having ill-will towards Z and intending
to kill him, and not having been subject to the provocation, assists A in killing Z. Here,
though A and B are both engaged in causing Z’s death, B is guilty of murder, and A is guilty
only of culpable homicide.
39. “Voluntarily”.
A person is said to cause an effect “voluntarily” when he causes it by means whereby he
intended to cause it, or by means which, at the time of employing those means, he knew or
had reason to believe to be likely to cause it.
Illustration-
A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a
robbery and thus causes the death of a person. Here, A may not have intended to cause death;
and may even be sorry that death has been caused by his act; yet, if he knew that he was
likely to cause death, he has caused death voluntarily.
67. Imprisonment for non-payment of fine, when offence punishable with fine only.
If the offence be punishable with fine only, the imprisonment which the Court imposes in
default of payment of the fine shall be simple, and the term for which the Court directs the
offender to be imprisoned, in default of payment of fine, shall not exceed the following scale,
that is to say, for any term not exceeding two months when the amount of the fine shall not
exceed fifty rupees, and for any term not exceeding four months when the amount shall not
exceed one hundred rupees, and for any term not exceeding six months in any other case.
71. Limit of punishment of offence made up of several offences.
Where anything which is an offence is made up of parts, any of which parts is itself an
offence, the offender shall not be punished with the punishment of more than one of such his
offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in
force for the time being by which offences are defined or punished, or
where several acts, of which one or more than one would by itself or themselves constitute an
offence, constitute, when combined, a different offence,
the offender shall not be punished with a more severe punishment than the court which tries
him could award for any one of such offences.
Illustrations-
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of
voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make
up the whole beating. If A were liable to punishment for every blow, he might be imprisoned
for fifty years, one for each blow. But he is liable only to one punishment for the whole
beating.
(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the blow
given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one
punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.
73. Solitary confinement.
Whenever any person is convicted of an offence for which under this Code the Court has
power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that
the offender shall be kept in solitary confinement for any portion or portions of the
imprisonment to which he is sentenced, not exceeding three months in the whole, according
to the following scale, that is to say-
a time not exceeding one month if the term of imprisonment shall not exceed six months;
a time not exceeding two months if the term of imprisonment shall exceed six months and
shall not exceed one year;
a time not exceeding three months if the term of imprisonment shall exceed one year.
74. Limit of solitary confinement.
In executing a sentence of solitary confinement, such confinement shall in no case exceed
fourteen days at a time, with intervals between the periods of solitary confinement of not less
duration than such periods; and when the imprisonment awarded shall exceed three months,
the solitary confinement shall not exceed seven days in any one month of the whole
imprisonment awarded, with intervals between the periods of solitary confinement of not less
duration than such periods.
75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after
previous conviction.
Whoever, having been convicted,-
(a) by a court in India, of an offence punishable under Chapter XII or Chapter XVII of this
Code with imprisonment of either description for a term of three years or upwards,
(b) *** omitted
shall be guilty of any offence punishable under either of those Chapters with like
imprisonment for the like term, shall be subject for every such subsequent offence to
imprisonment for life, or to imprisonment of either description for a term which may extend
to ten years.

Chapter- IV
General Exceptions
 Section 76:
Section 76 of Penal code is established from a well-known maxim, ignorantia facti excusat,
ignorantia legis neminem excusat. It means that ignorance of fact is an excuse, but
ignorance of the law is not an excuse. The mistake of fact to be an excuse must be a mistake
related to a material fact that is necessary to constitute a particular offence. Mistake must be
reasonable and acceptable and that it is not a mistake of law but a mistake of fact.
One can not plead the defence of mistake of fact if the act committed is illegal. Further, no
one is permitted to plead for this defence if the responsible investigation reveals the correct
facts. Mistake of fact is also not accepted as a plea when the act is punished by law without
reference to the mind of the wrong-doer.
Case Laws:
1. R vs Tolson (1889)
2. Bhawoo Jivaji vs Mulli Dayal (1888)

Essentials elements of section 76

The essential elements of section 76 can be assessed as follows:
1. An act or mistake done by a person who is compelled by law in doing that.
2. Such a person believes that he is bound by law to do such an act.
3. Mistake must be related to fact and not the law.
4. The act committed must be in good faith.

Section 77
Section 77 of IPC grants protection to a judge when he is acting judicially. As per this
section, if a judge commits an offence while acting judicially in the exercise of any power
given to him by law or in the exercise of any power which he believes to be given to him by
law in good faith, he will be able to take the defence under this section.
In other words, it is no offence if a judge commits an act which is an offence in the Indian
Penal Code while acting judicially in the exercise of any power provided to him by law or in
the exercise of any power which he believes to be provided to him by law in good faith.
However, it is to be noted that the Judge must prove good faith.
Section 77 Case Law
Megh Raj vs Zakir Hussain (1875)
In this case, the High Court of Allahabad has held that ‘no person acting judicially is liable
for an act done or ordered to be done in the discharge of his official duty within the limits of
 his jurisdiction and in such a case the question of acting in good faith does not arise. The
question of good faith is irrelevant only when a judge acts without jurisdiction. But when
there is jurisdiction, the immunity extends even to acts which constitute even an abuse of it.‘
Section 78: This section is a result of section 77 of the IPC. This section provides protection
to officers acting under the authority of a court’s decision or order of a Court of justice. The
section states that if an act is committed at the time of the imposition of a decision or order of
a court, it will not be considered an offence, even if the court does not have jurisdiction to
pass such a decision. However, the act must be done believing in good faith that the court has
such jurisdiction. Under this section, one can plead a mistake of law as a defence.
Section 78 Case Law Kapur Chand vs State (1976) In pursuance of an order of the
Magistrate, the accused (husband) had withdrawn the property of his wife from her control
without her consent. It was held that the husband had not committed any offence as he was
protected under section 78 of the Penal Code.

section 79
Section 79 of IPC provides a defence to a person who commits an offence and, because of a
mistake of fact and not a mistake of law, believes himself to be justified by the law in doing
it.
Case Laws:
1. Kesho Sahu vs Saligram Shah (1977)
2. State of Orissa vs Bhagaban Barik (1987)
Essential elements of section 79
The essential elements or ingredients of section 79 are as follows:
1. An act committed by a person under a mistake of fact.
2. Such a mistake must be a mistake of fact and not of law.
3. The mistake must be made with bona fide belief or in good faith.
4. The person doing the act is either justified by law or he believes to be justified by the law
in doing such act.
Difference between section 76 and section 79
Section 76 deals with cases where the person under a mistake considers himself to be
compelled or bound by law to act in a particular way. Although his act is a crime on the
actual condition of the facts.
On the contrary, section 79 deals with cases where a person under the mistake considers
himself to be simply justified or excused by the law to act in a particular way.
In short, section 76 contains legal compulsion whereas, section 79 contains legal justification.
section 80: Section 80 of IPC is based on the principle that no act is an offence or crime
unless the one doing it has done it with criminal intent. Accident does not only mean
occurrence by chance, but such occurrence must be unintended and unexpected.
This section states that if anything is done by accident or misfortune and that too without any
criminal intention in doing a lawful act in a lawful manner and by all lawful means with
proper care and caution, it will not be defined as an offence.
In other words, it is no offence if a person commits an act that is an offence under the eye of
IPC by accident or misfortune but without any criminal intent or having knowledge of it. The
act must be lawful, and it must be done in a lawful manner by lawful means.
It must be noted that both the words accident and misfortune indicates injury to another
person. Accident pertains to injury to another person, but misfortune pertains to as much
injury to the first person as to the other person who is not connected with the act.
For example, in State vs Rangaswamy (1952), A and B both went to the jungle to shoot wild
rats, and both took their positions. After some time, some sound was heard, and A, believing
it to be a wild rat, fired in that direction. Unfortunately, the shot caused B’s death. It was held
that A was not liable for the death as the death resulted from an accident. But where two
persons driving a car collide with each other. And, this resulted in injuries to drivers of both
vehicles. It will be a case of misfortune.

section 80
The essential elements of section 80 can be outlined as follows:
1. The act committed must be an accident or misfortune.
Case law: State vs Rangaswamy (1952)
2. Such act must not be committed with criminal intention or knowledge.
Case law: Tunda vs State (1950)
3. The accident must be the outcome of a lawful act done in a lawful manner and by a lawful
means.
Case laws: (a) Jageshwar vs Emperor (1924), (b) Shakhir Khan vs Crown (1931)
4. The act committed must have been done with proper care and caution.
Case law: Shankar Bhadolkar vs State of Maharashtra (2004)
Burden of Proof
The burden of proof under section 80 of the Indian Penal Code lies upon the accused. It is on
the accused to prove that his case falls within the exception provided under this section.

section 81:
Section 81 of Penal Code says that anything which is done with the knowledge that it is likely
to cause harm, to prevent or avoid other harm to a person or property, will not be considered
as an offence if it is done without any criminal intention and in good faith.
Reasonable test of necessity
In such a case, it is a question of fact whether the damage prevented or avoided was of such a
nature and was so imminent as to justify or excuse the risk of acting with the knowledge that
it was likely to cause harm.
Example of necessity
Shiv pulls down houses to prevent the conflagration (fire) from spreading. He does this in
good faith for saving human life or property. Here, if it is found that the harm to be prevented
was of such a nature and so imminent as to excuse Shiv’s act, Shiv is not guilty of the
offence.
Principle of good faith
As per section 81 of the IPC, anything done in good faith to prevent or avoid other harm to
any person or property without any criminal intent believing or knowing that it is likely to
cause harm will not be considered an offence.
Principle of no other alternative
In other words, any act committed causing harm to another person or property with the
objective to prevent or avoid any other harm will not be an offence.
However, it is to be noted that the act committed must be done without any criminal intent
and with the knowledge that if it is not prevented or avoided, it is likely to cause some harm.
This section allows the doing of lesser evil to prevent greater evil either to a person or
property. In situations where necessity forces a person to do some illegal act, a person can use
the defence of section 81 because no one can be guilty of a crime without the will and
intention of the mind.
Essential Elements of Necessity
1. The act must be done without any criminal intention to cause harm:
In order to use the defence provided under this section, the criminal act must have been done
without any evil intention. Intentional wrongdoing cannot be justified in any condition.
For example, Ramesh sees that a tiger is going to attack Suresh. Ramesh shoots the tiger, as
he feels sure that the tiger might kill Suresh. Here, if unintentionally Ramesh kills Suresh; he
would be guilty of no offence because he did not intend to kill Suresh.
2. The act must have been done in good faith:
If a person does any act with an evil intention, he will be held liable for the offence
committed by him. The defence under section 81 IPC can be only used if the offence
committed was in good faith.
3. The act must have been done to prevent or avoid some other harm:
It is significant that the offence committed, to be a defence, must be done to prevent or avoid
the other harm. Case law: Dhania Daji (1868)

Section 82:
Section 82 says that anything done by a child under seven years of age will not be an
offence.
Doctrine of doli incapax
This section says that any act done by a child under seven years of age will not be considered
an offence. In India, a child below 7 years of age is deemed to be doli incapax and therefore
cannot be held guilty of any offence.
Case Law for section 82 Marsh vs Loader (1863): In this case, the defendant caught a
child stealing a piece of wood from his premises. However, the child was under the age
of seven years, and therefore he was not held liable for the offence.

section 83
Section 83: Section 83 says that anything done by a child above seven years of age and under
twelve years, who has not obtained enough maturity of understanding to judge the nature and
outcomes of his conduct on that occasion, will not be an offence.
 Doctrine of doli capax
According to this section, a child above seven years of age and below twelve years of age can
plead for the defence under this section if they commit any offence. However, it is to be
proved that the child has not attained enough maturity to judge the nature and outcomes of his
actions on that occasion.
Essential elements of section 83
1. The act must be done by a child between 7 years and 12 years of age.
2. The child must not have achieved enough maturity of understanding to judge the nature
and the consequences of his act.
3. The incapacity must exist at the time of the commission of the act.
Case Law for section 83
Marimuthu vs Unknown (1909): In this case, the accused, a girl of 10 years of age, picked
up a silver button worth eight annas and gave it to her mother. It was held that the girl was
not liable for theft because the circumstances did not disclose that she had attained sufficient
maturity of understanding to judge the nature of her act.
The Indian law on insanity is given under section 84 of the Indian Penal Code. It is based on
the first two prepositions given above.

Section 84
Section 84 of IPC says that if a person commits an act because of unsoundness of mind, he
will not be liable for an offence. However, it is to be noted that the unsoundness of mind must
be at the time of the commission of the act, and it must be to such an extent that the offender
is incapable of knowing the nature of the act or that what he was doing was either wrong or
opposite to the law.
A person could plead for the defence under this section if he was unable to differentiate
between good and evil because of unsoundness of mind. The accused can in no way be
protected under this section if he knew that the act done by him is wrong, even if he did not
know that the act was opposed to the law.
What Happens if a Person Becomes Insane After Committing a Crime?
It must be proved that the insanity existed at the time of committing the act constituting the
offence. A plea of insanity at the time of trial is not considered and is of no use. After
committing a crime, if a person becomes insane or of unsound mind, he can’t escape from his
 liability of crime. For defence under section 84 IPC, it is necessary to be insane or of unsound
mind at the time of committing an offence.
Persons of Unsound Mind
The persons of unsound mind can be classified into four categories:
1. An idiot
2. A lunatic
3. A person made of unsound mind due to illness
4. Drunken person
Essential Elements of Section 84
The essential elements of section 84 can be outlined as follows:
1. The act must be done by a person who is of an unsound mind.
Case law: Siddhapal Kamala Yadav vs State of Maharashtra (2009)
2. Such a person must be incapable of knowing the nature of the act, or that the act is
opposed to law or that the act was right or wrong.
3. Such incapacity must be by the unsoundness of the offender’s mind.
4. The incapacity must exist at the time of the commission of the act constituting the offence.
Case law: Gunadhar Mondal vs State (1979)

Section 85
Section 85 contains involuntary intoxication. It says that if anything is done by a person who,
because of intoxication at the time of the commission of the offence, was incapable of
ascertaining the nature of the act or of ascertaining what he was doing was wrong or opposed
to the law, he will not be held liable for the offence. However, the thing due to which the
offender became intoxicated must be administered to him without his knowledge or
against his own will.
Important: Voluntary drunkenness can in no way be pleaded as a defence. It is only
involuntary drunkenness or intoxication that can be pleaded as a defence against an offence
committed by a person.
Example of section 85
B mixed alcohol in A‘s soft drink at a party. A without knowing that his soft drink is
intoxicated, he consumes it. A, in a hurry, picked up another person’s wallet and went home.
Here, A will not be liable for the offence of theft as he was involuntarily intoxicated.
Essential elements of section 85
The essential elements of section 85 can be outlined as:
1.A person committing an offence was intoxicated against his will or without his knowledge:
To plead for a defence under section 85, it must be proved that the thing by which the
offender was intoxicated was administered or given to him without his knowledge or against
his own will or consent.
Case law: Director Public Prosecution vs Beard (1920)
2. Such a person was incapable of knowing the nature of the act or what he was doing was
wrong or contrary to the law at the time of the commission of the offence due to intoxication:
Suppose a person at the time of committing the offence knows or understood that what he
was doing should not be done or is contrary to the law and he still does that. In that case, he
will not be able to use the defence, and he will be held liable for the offence committed by
him.

section 86
Section 86 says that if a person does any act which is not considered as an offence unless
done with particular knowledge or intent, in a state of intoxication, then he will be held liable
to be dealt in the same way as he would be liable if he had not been intoxicated. However, the
person committing an offence can plead for the defence if the thing which intoxicated him
was administered/given to him without his knowledge or against his will.
Section 86 contains a condition to the law written under section 85.
Accordingly, if a person is voluntarily intoxicated, the court will presume the same
knowledge as he would have if he had not been intoxicated. However, it is to be noted that
this section indicates a drunken man the knowledge he possesses and not the intention. As
criminal jurisprudence says that mens rea is a mental element and can’t be presumed. It is to
be understood that a voluntarily intoxicated person while committing an offence can be held
liable only based on knowledge and not on any particular intention.
Example of section 86
A had two bottles of medicine, one containing poison and the other medicine for internal use.
He mistakenly gave his child a dose of poison while he was in a drunken state. As a result,
the child died due to this. Here, A is not entitled to plead the defence under this section and
shall be guilty of culpable homicide not amounting to murder because his act was of gross
negligence.
 Difference between section 85 and section 86
It can be concluded that section 85 contains a general exception where a person who is
involuntarily intoxicated, if commits an offence, will not be held liable. But, section 86
contains a condition to the exception given under section 85 of the IPC whereby a person
voluntarily intoxicated can be held liable for an offence only when particular knowledge is
proved.

section 87
Section 87 of the Indian Penal Code, 1860 provides defence for certain games such as
fencing, boxing, football, etc. This section says that any act which causes harm except the act
intended to cause death or grievous hurt and which is not in the knowledge of the doer to be
likely to cause death or grievous hurt is not an offence if it is done with the consent of a
person who is above 18 years of age. The consent may be given in any manner, express or
implied.
This section is based on the maxim “volenti non-fit injuria“, which means he who consents
suffers no harm. In other words, if a person gives consent for an event that may cause harm to
him with his own will, he accepts to suffer the harm. He cannot make the other person liable
for it.
Illustration
A and B are playing football. B kicks a ball, and the ball hits the face of A. As a result, A got
injured. Here the consent was given impliedly to suffer any harm in the course of a game. A
can plead for defence.
The defence of consent is based on two submissions:
1. Every person is the best judge for itself.
2. No man will give consent for what he thinks will be hurtful to him.
Essential Ingredients of Section 87, IPC
To plead for the defence under section 87 of IPC, the harm must be caused under the
following conditions:
1. The act causing harm must not be done with the intention or knowledge that it is likely to
cause death or grievous hurt.
2. Such harm must be caused only with consent.
3. The consent must be given by a person who is above 18 years of age.
4. The consent may be express or implied.

Section 88,
If a person commits an act of harm in good faith and with the consent for the benefit of that
person, it will not be considered an offence. The consent may be either express or implied.
However, the consent must be obtained lawfully and by a person who is capable of giving
valid consent in law.
Under section 88 of the Indian Penal Code, the wrong-doer is protected even for an act
causing grievous hurt but not death. In cases where a person gives consent with his will to
take the risk of an operation, and the operation becomes fatal, the doctor who has done the
operation cannot be punished even if it causes that person’s death.
Illustration
A, a surgeon performed plastic surgery on the patient to remove the defect in the nose. The
patient died during the surgery. Here, A will not be liable for the patient’s death unless there
has been any gross negligence on his part.
Essential Elements of Section 88, IPC
The essential elements of section 88 of IPC can be outlined as follows:
1. The act is done for the benefit of the person who suffers injury.
2. The act causing harm must be done with the consent of the person to suffer that harm.
3. The act causing harm must be done in good faith for the benefit of that person.
4. The act must be done without any intention to cause death. But if any harm results in the
death of a person, then the doer is not liable.

Section 89
This section provides power to the guardian of a child under twelve years of age or a person
of unsound mind to give consent for the infliction of harm on them. Section 89 of the Indian
Penal Code states that any act that is done for the benefit of a child under 12 years of age or
of unsound mind with the consent of the guardian or any other person having lawful charge
of such person and in good faith is not an offence. However, please note that this exception
shall not extend to the intentional causing of death or the attempt to cause death.
Illustration
A, in good faith, for the benefit of his child, took him to a surgeon to remove the stone in his
stomach. He very well knew that the operation is likely to cause the death of his child. But
not intending to death, A gave his consent to get his child treated. Here, neither A nor the
surgeon will be liable if the operation causes death, as their sole objective was to cure the
child.
Essential Elements of Section 89
To plead for the defence under section 89 of the Code, the following elements must be
fulfilled:
1. Act done must be for the benefit of a person who is of unsound mind or a child under 12
years of age.
2. Such an act must be done in good faith.
3. Act must be either done by the guardian or by the guardian’s consent or such other person
who has lawful charge of that person.
4. The consent may be either express or implied.

Section 90
To plea consent as a defence, it must be given by a person who is capable of giving
reasonable and valid consent. A person of unsound mind, a child under 12 years of age,
intoxicated persons, and so are not capable of giving valid consent.
The consent given must be free from any fear or misconception or such misconception of the
fact that arises out of misrepresentation, fraud, etc. Any consent which is obtained illegally or
unlawfully is no consent under the law.
In short, consent can not be used as a defence under the following cases:
1. Consent that is given by a person under fear of injury.
2. Consent given under misconception of fact.
3. Consent given by a child under 12 years of age.
4. Consent given by a person of unsound mind.
5. Consent given by an intoxicated or drunken person.
The exceptions in sections 87, 88 and 89 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.

Section 91:
 The exceptions in sections 87, 88 and 89 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.

Section 92
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–
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.
Illustrations-
(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to 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.
(b) Z is carried off by a tiger. A fires 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 ball gives Z a
mortal wound. A has committed on offence.
(c) 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.
(d) 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 housetop, 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 88, 89 and 92.

Section 93:
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.

Section 94. Act to which a person is compelled by threats.

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.

Section 95.
Act causing slight harm.
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.

Section 96-106 is right to private defense

Section 96
If a person commits an offence in the exercise of the right of private defence, then it is not an
offence under the Indian Penal Code. But the harm should not be more than which is
necessary for the purpose of protecting body and property.
What is reasonable shall be taken into consideration by the court. What amount of harm is
necessary for the right of private defence has nowhere been scaled or measured.

Section 97
Every person has a right, subject to the restrictions contained in section 99, to defend-
First – His own body, and the body of any other person, against any offence affecting the
human body; Secondly – The property, whether movable or immovable, of himself or of any
other 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.
Section 98
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, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A 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.

Private Defence of Body and Property

Section 99
Except the restrictions contained in section 99 of the Indian Penal Code, a person can defend
his own body, and other’s body and also his property and other’s property. Property may be
movable or immovable.
Restrictions under Section 99 IPC
There are some acts to which a person do not have the right of private defence. They are:
A. There is no right of private defence against the public servant who is acting in good faith
until and unless there is an apprehension of death or grievous hurt by his actions. For
Example, a police officer.
Explanation I– But a person can exercise his right of private defence against a public servant
when he is not aware of or has no reason to believe that he is a public servant.
 B. There is no right to private defence against the act which has been done in compliance of
the directions given by a public servant until and unless there is an apprehension of death or
grievous hurt by his actions.
Explanation II– But a person can exercise his right of private defence against a person who is
doing an act on the directions of the public servant, when he is not aware of or has reason to
believe that the person is acting on directions by the authority.
C. A person does not get the right of private defence where he has the time to approach or
seek help from the public authorities.
D. A person is not authorized to exercise the right of private defence more than which is
required. A person may cause reasonable harm which is necessary for defence.
When Private Defence Extends to Cause Death
It is a rule that a person exercising the right of private defence is allowed to inflict reasonable
harm to protect body or property. But there are certain occasions when this right extends to
causing of death. They are:
 In the case of Body (Section 100 IPC)
 In the case of Property (Section 103 IPC)

In the case of Body

Section 100
A. When a person is assaulted in such a manner that it creates apprehension in the mind of a
person that if he does not exercise his right of private defence, then death will be the
consequence of such assault.
B. When a person is assaulted in such a manner that it creates apprehension in the mind of a
person that if he does not exercise his right of private defence, then grievous hurt will be the
consequence of such assault.
C. When a person is assaulted with the intention of getting raped.
D. When a person is assaulted with the intention of unnatural lust (unnatural sexual desire).
E. When a person is assaulted by being kidnapped or abducted.
F. When a person is assaulted of being wrongfully confined and creates apprehension in the
mind of a person that he would not able to recourse to public authorities after that.
 G. When a person has the apprehension that acid is about to be administered or thrown on
him or her and if he or she does not exercise the right of private defence, grievous hurt will be
the consequence.

Section 101
If the offence be not of any of the descriptions enumerated in the last preceding section, 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 mentioned in section 99, to the voluntary
causing to the assailant of any harm other than death.
Section 102 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.

In the case of Property

Section 103
Except for the restrictions mentioned under section 99, a person has the right to extend his
right of private defence to cause death when:
A. The person attempts or commits the offence of robbery; or
B. The person who attempts or commits housebreaking or house-trespass after sunset and
before sunrise; or
C. The person attempts to destroy or destroy/diminishes (mischief) any building, tent or
vessel used for human dwelling by fire; or
D. The person attempts or commits theft, mischief, or house-trespass and causes
apprehension in the mind of other that if the right of private defence is not exercised, death or
grievous hurt will be the consequence.
Notes:
1. The right of private defence of a person continues till the danger to body or property
continues.
2. A person has the same right of private defence against an unsound mind person or an
intoxicated person like a normal prudent man.

Section 104
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 enumerated in the last preceding section, that right does not extend to the
voluntary causing of death, but does extend, subject to the restrictions mentioned in section
99, to the voluntary causing to the wrong-doer of any harm other than death.

Section 105
The right of private defence of property commences when a reasonable apprehension of
danger to the property [Link] right of private defence of property 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 [Link] right of private
defence of property 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 [Link] right of private defence of
property against criminal trespass or mischief continues as long as the offender continues in
the commission of criminal trespass or [Link] right of private defence of property
against house-breaking by night continues as long as the house-trespass which has been
begun by such house-breaking continues.

Section 106
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 effectually 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. A commits no offence if by so firing he harms
any of the children.