Negating the elements of Crime in Criminal Law

A very general rule of criminal liability is that all the persons are responsible for the criminal act they commit, however, there are certain exceptions and circumstance which tend to waive the liability. The courts, when it comes to dealing with the accused, provides them with a chance to prove their innocence to free themselves of criminal liability before assessing any form of punishments for the commission or omission of an illegal act or crime. The accused prove their innocence in various ways as prescribed in the law using different means which is called General Exceptions or Defenses in Criminal Law. The courts negate elements of crime committed by the accused as they use various defences given in the penal code while proving their innocence. The premise of doing so is the existence of a fact which says that even though a person has committed an offence he cannot be held liable until proven guilty.

Chapter four of the Indian Penal Code from Section 76 to 106 has the provisions relating to the general exceptions of criminal law. However, in any case, if a general exception is used as a defence, the Burden of Proof is on accused as the court in the first hand presumes the absence of such circumstances. Section 105 of the Indian Evidence Act has made provisions of such.[1] The whole idea of negating the elements of the crime is to protect the rights of the accused and to prove that the justice system is fair for both sides, the victim as well as the accused.

History of negating the elements of the crime

The history of general defences or rather negating the elements of crime dates back to the Hammurabi Code of 1772 BC where the first ever recorded use of insanity as a defence is found. Also the case of 1843 where legal rules relating to insanity plea namely ‘McNaghten Rules’ were found wherein a man named Daniel McNaghten[2] was acquitted of murder due to his mental condition. This case generated an intensive series of debate in the House of Lords in the UK, thus resulting in the McNaghten Rules.[3] The rules stated that to establish a general defence, it was necessary to prove the defect of reason from a diseased mind.

General Defences and its kinds

There is no such express classification of general defences in the Indian Penal Code, 1860 however, in the Draft Criminal Code of UK two main themes of defences are emphasized namely-

  • Excusable Exception
  • Justifiable Exception

Nevertheless, the classification and distinction have become an important part of criminal law while studying general defences in India as well and even though Section 4 of the Indian Penal Code doesn’t explicitly word out the classification, the jurisprudential aspect of the law is pretty much understandable and evident, which has helped us make the following distinctions.

  • Excusable Exception

The excusable exception is said to take place when even though an accused has done harmful activities he/she is not to be blamed for an act and should be excused. Excusable exceptions for an act has been listed in the Indian Penal Code in Section 76, 79 for Mistake of a Fact, Section 80 for Accident, Section 82, 83 for Infancy, Section 84 for Insanity, Section 85, 86 for Intoxication.[4] The excusable exceptions are used in the courts for the reason that there was no mens rea or criminal intent behind the crime done by the accused.   

  • Justifiable Exception

In simple terms, a justifiable exception occurs when any action deemed to be wrong under normal circumstances is now acceptable and justifiable due to numerous circumstances. These circumstances have been listed Indian Penal Code in Section 77, 78 for Judicial Acts, Section 81 for Necessity, Section 87, 88, 89, 90 for Consent, Section 93 for Communication, Section 94 for Duress, Section 95 for Trifling Acts and Section 96-106 for Private Defense. The justifiable exceptions are used in the court for the reason that the action (crime) despite committing it is justified by the conditions mentioned in the code.

The explanations for some of the defences along with case laws are as follows-

A mistake of a Fact- This defence is based on the Latin maxim, Ignorantia facit doth excusat; Ignoramtia Juris non excusat’ which translated to ‘Ignorance of fact is an excuse, but ignorance of the law is not excused’. In this maxim, we can understand that there are two elements. First, that Mistake of law is not a general defence in criminal law and cannot be excused. For instance in the case of People v. Marrero[5]; wherein a federal officer misinterpreted the law saying peace officers could carry a gun but the law applied to only state-level peace officers and hence the court held that mistake of law is not a defence and cannot be excused even though the mistake is reasonable. Another landmark case of M.H. George v. Maharashtra[6]; ruled that ‘Mistake of law is not a defence, because every man is presumed to know the law and is to be held responsible in any case of breach of the same.

The second element to the maxim that is Mistake of the face can be excused and can be used as a defence in criminal law. For example in the case of State of Orissa v. Khora Gari[7], wherein a  man while guarding the farm shot an arrow at a moving object mistaking it for a bear and accidentally killed a man. It was held that he would not be held liable for murder as it was a mistake of fact and not a mistake of reason.

Insanity- This defence is based on the Latin Maxim, Non-compos mentis, which translates in English to ‘without mastery mind’. Insanity is not a medical terminology; it is a legal concept to denote mental disorder which relives the accused of criminal responsibility for his/her crime. The insanity defence has been used as a defence for many centuries but took a legal position since the last three centuries.

There are various tests through which a person may be acquitted for being insane like the Wild Beast Test which has evolved through Rex vs. Arnold case, the other test is Insane Delusional Test which was evolved through the case of Hadfield, another such test is the Right and Wrong test portrayed in the case of Bellingham, these three tests mentioned above also comprise of what we called the M’Naghten Test. The M’Naghten test is based on M’Naghten rule which comprises two elements for declaring anyone insane. The first element is the defect of reason from mental disease and the second element is the inability to know the nature of a criminal act and not able to distinguish of wrong and right. 

Infancy- This criminal defence has been inherited from the British common law which attempts to disprove the liability of a crime because of the accused’s young age. This defence believes that Children cannot be prosecuted as adults because they lack emotional and cognitive maturity to understand the moral nature of their actions. An infancy defence recognizes that a person cannot be held guilty without a requisite men’s rea to commit criminal acts until they have reached predefined age of criminal responsibility. Under English common law, the defence was expressed as a set of presumptions in a doctrine known as Dolly Incapax, which means ‘not capable of crime’.

Intoxication- Intoxication is classified under excusable defence; however, the person must have administrated alcohol without his knowledge or against his will. There are two forms of intoxication, one is voluntary and the other is involuntary.  The law doesn’t grant general defence to voluntary intoxication done to develop courage for doing a crime. This has been illustrated in the case of AG of Northern Ireland v. Gallagher[8]wherein a man was held guilty and charged because he had formed the intention of killing his wife beforehand and got voluntarily intoxicated to get the courage and performed the criminal action.

Also, in the case of Mirza Ghani Baig v. State of Andhra Pradesh[9];it was held that ‘Voluntary drunkenness is no excuse for the commission of a crime’. Whereas in involuntary intoxication, a person can be free from criminal responsibility. For example in the case of R v. Hardie[10] wherein a person was charged with Arson, when asked he claimed that it was due to Valium tablets prescribed to him to calm his nerves and did not remember anything and thus the court held that he was not guilty of the crime.

Necessity- This general defence of necessity has been recognized in the law but the limit and scope of it are uncertain. It works based on the accused pleading justification for what he has done. However, there are certain elements which can be considered while deciding on the defence of necessity. For instance, the element of extreme emergency, when a person has to choose between two evils and he chooses the less evil option or the element when a person has no legal alternatives to violate the law. But this defence cannot be used to commit a crime and later justify it for the reason of necessity.

A very famous case of R v. Dudley and Stephens[11] portrays how the defence of necessity cannot be used for murder; wherein three shipmen, out of whom one was a 17 years old boy, escaped from a storm which capsized their ship and drifted on a wooden plank for many days without food and water, and hence for survival when the death of the three from starvation was imminent, the two decided to kill the boy and eat his flesh for a few days until they were rescued. However, on being prosecuted for murder, their defence of necessity was rejected and sentenced to death. Thus, to prove necessary in the court, the defendant should be able to prove that there would be a situation of greater harm than his criminal acts and that there is a threat of humans or natural forces and not on the basic whim of necessity. 

Private Defense- This is a very important general defence wherein a person has the right to private defence of his body or property against any harm or death. This is also called Self Defense and prevention of crime which allows a person to use reasonable force to defend himself/herself under attack; the ‘reasonable force’ depends upon the individual circumstances and conditions varying as per the situation and case. The right of private defence is based on the cardinal principle that it is the primary duty of a man to help him first against any harm. However, to exercise this defence, the situation should be proportional to the harm one faces.


From the above discussion it is evident that if there is no mens rea to an action which is contrary to the law, one can seek to free themselves from criminal responsibility using certain general defences. To do so, relevant evidence must be proven based on the respective law and the accused must prove beyond a reasonable doubt that he should be exempted from punishment.

[1] §105, Indian Evidence Act, 1872. 

[2] M’Naghten’s case [1843] UKHL J16 (19 June 1843).

[3] Prof. Duncan Bloy, ‘Lecture Notes on Criminal Law’, Cavendish Publishing Limited, 2nd ed.,pg-183.

[4] Chapter 4, Indian Penal Code, 1860.

[5] People v Marrero, 507 N.E.2d 1068 (1987).  

[6] M.H. George v. Maharashtra, AIR 1965 SC 722.

[7] Orissa v. Khora Gari, 1978 CriLJ 1305.

[8] AG of Northern Ireland v. Gallagher, [1963] AC 349.

[9] Mirza Ghani Baig v. State of Andhra Pradesh, (1997) 2 Crimes 19 (AP).

[10] R v. Hardie, [1985] 1 WLR 64.

[11] R v. Dudley and Stephens, (1884) 14 QBD 273 DC.

Prashamsa Ghimire from National Law College, Tribhuwan University, Nepal.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: