GENERAL EXCEPTIONS
SECTIONS 96-106
RELEVANT SECTIONS
SECTIONS 96-106
CASES:
R V. DUDLEY AND STEPHENS
(1884) 14 QBD 273 DC
ISSUE: Considering the circumstances in which the young boy
Parker was killed, whether necessity was a defense to the charge
of murder?
Dudley and Stephens (the two defendants) along with Brooks
and Parker(victim) became shipwrecked by a storm.
They were forced to abandon their ship and were stranded in a
small emergency boat.
They had been stranded for 18 days. The food had ran out 7 days
earlier and they had had no water for five days.
Dudley and Stephens decided to draw straws so that one person
sacrifices himself in order to save the rest. Brooks dissented
while Dudley and Stephens decided to kill Parker since he was
the weakest and had no family.
Dudley and Stephens cut the boys (Parker’s) throat. He was too
ill to put up any resistance. All the three men fed on the boy.
Four days later a vessel rescued them and on their return to
England, Dudley & Stephens were charged with the boy’s murder.
REASONING:
Lord Coleridge CJ quotes:
“It would be a very easy and cheap display of commonplace
learning to quote from Greek and Latin authors, from Horace,
from Juvenal, from Cicero, from Euripides, passage after
passage, in which the duty of dying for others has been laid
down in glowing and emphatic language as resulting from the
principles of heathen ethics; it is enough in a Christian
country to remind ourselves of the Great Example [Jesus
Christ] whom we profess to follow.”
JUDGEMENT
"Now it is admitted that the deliberate killing of this unof fending and
unresisting boy was clearly murder, unless the killing can be justified
by some well-recognized excuse admitted by the law. It is fur ther
admitted that there was in this case no such excuse, unless the killing
was justified by what has been called 'necessity'. But the temptation to
the act which existed here was not what the law has ever called
necessity. Nor is this to be regretted. Though law and morality are not
the same, and many things may be immoral which are not necessarily
illegal, yet the absolute divorce of law from morality would be of fatal
consequence; and such divorce would follow if the temptation to
murder in this case were to be held by law an absolute defense of it….."
"It is not needful to point out the awful danger of admitting the
principle which has been contended for. Who is to be the judge of this
sor t of necessity? By what measure is the comparative value of lives to
be measured? Is it to be strength, or intellect or what? It is plain that
the principle leaves to him who is to profit by it to determine the
necessity which will justify him in deliberately taking another's life to
save his own. In this case the weakest, the youngest, the most
unresisting, was chosen. Was it more necessar y to kill him than one of
the grown men? The answer must be 'No'”
JUDGEMENT
Lord Coleridge CJ states :
“It must not be supposed that in refusing to admit temptation to
be an excuse for crime it is forgotten how terrible the temptation
was; how awful the suffering; how hard in such trials to keep the
judgment straight and the conduct pure. We are often compelled
to set up standards we cannot reach ourselves, and to lay down
rules which we could not ourselves satisfy. But a man has no
right to declare temptation to be an excuse, though he might
himself have yielded to it, nor allow compassion for the criminal
to change or weaken in any manner the legal definition of the
crime. It is therefore our duty to declare that the prisoners’ act
in this case was wilful murder, that the facts as stated in the
verdict are no legal justification of homicide; and to say that in
our unanimous opinion the prisoners are upon this special
verdict guilty of murder.”
DECISION:
The defendants were convicted of murder.
The defense of necessity was not allowed.
There is no defense of necessity (while killing another’s life to save
one’s own even under extreme necessity of hunger) to the charge of
murder
The defendants were sentenced to death.
The defendants were later granted a pardon by the Crown and
their sentence commuted to 6 months of imprisonment.
AMJAD KHAN V. THE STATE
ISSUE: Whether the appellant acted in his right of private defence.
Did Amjad Khan exceed his right of private defense ?
A communal riot broke out in a town between some Sindhi
refugees and the local Muslims. The trouble started in a locality
where most of the shopkeepers were Sindhis.
The goods in the Muslim shops there were scattered and some
Muslims lost their lives. Alarm spread to another locality where
the shops of appellant and his brother (both Muslims) were
situated and the people there, including the appellant, started
closing their shops.
The family of the appellant's brother had taken shelter in the
appellant's portion of the building through a hole in the wall
between the two portions of the building in which the two shops
were situated.
A mob collected there and approached the appellant's locality and
looted his brother's shop and began to beat the doors of his shop
with lathis. The appellant fired two shots from his gun which
caused the death of one Sindhi and injured three other Sindhis.
A communal riot broke out at Katni on the 5th of March,
1950, between some Sindhi refugees resident in the town and
the local Muslims.
The trouble started in a locality where most of the
shopkeepers were Sindhis. The goods in the Muslim shops
there were scared and some Muslims lost their lives.
A communal riot broke out at Katni on the 5th of March,
1950, between some Sindhi refugees resident in the town and
the local Muslims.
The trouble started in a locality where most of the
shopkeepers were Sindhis. The goods in the Muslim shops
there were scared and some Muslims lost their lives.
Alarm spread to another locality where the shops of appellant
and his brother (both Muslims) were situated and the people
there, including the appellant, started closing their shops.
The family of the appellant's brother had taken shelter in the
appellant's portion of the building through a hole in the wall
between the two portions of the building in which the two
shops were situated.
A mob collected there and approached the appellant's locality
and looted his brother's shop and began to beat the door of
his shop with lathis
The appellant fired two shots from his gun which caused the
death of one Sindhi and injured three other Sindhis.
The question for determination was w
Section 97 of IPC: the right extends not only to the defense of one’s
own body against any of fence af fecting the human body but also, to
defend the body of any other per son. This right also talks about the
protection of proper ty, whether one’s own or another per son’s .
The learned Judges Mr. Faizal Ali and Bose stated that there was no
time for the defendant to approach the authorities in order to protect
himself and feared getting gravely injured due to the activities of the
mob. (S 100, 101 , 102)
He had not done more than necessar y for self defense as, the judges
noted, shots fired by him were aimed ver y low and caused injur y to 4
Sindhis, implying that there was Sindhi activity ongoing within the
defendants vicinity.
Amjad Khan can exercise his right of private defense as he saw
reasonable apprehension of threat towards himself and his family and
proper ty. The mob had already looted his brother s shop and now they
had gathered infront of his shop. By shooting he did NOT exceed his
right of private defense.
So, according to a reasonable man’s perception, Amjad Khan acted to
protect his family and proper ty. (Section 99 )
DECISION:
The facts of the case afforded a right of private defence to the
appellant under the provisions of the Indian Penal Code .
Amjad Khan saw reasonable apprehension of threat towards
himself and his family and property. There was no way that he
could reach out for help. Therefore, his right of private defense
wasn’t exceeded by him and the defense was availed
successfully.
The circumstances in which he was placed were amply sufficient
to give him a right of private defense of the body even to the
extent of causing death as the appellant had no time to have
recourse to the authorities and has reasonable grounds for
apprehending that either death or grievous hurt would be caused
either to himself or to his family.
These things could not be weighed in too fine a set of scales or
"in golden scales."
The appeal was admitted and conviction of the accused was set
aside.
VISHWANATH V. STATE OF U.P., (1960) 1
SCR 646
ISSUE: Did the Appellant exceed the Right of Private Defense as laid
down by § 100 of the Indian Penal Code 1860?
Was the Appellant within the restrictions of § 99 of the Indian
Penal Code 1860?
The deceased, Gopal, was married to the sister of appellant.
The sister was at this time living with the appellant as she did not wish to
stay with Gopal.
The father and brother (Vishwanath) were of the opinion that she should
stay with them and not go and live with Badri.
Gopal wanted his wife to return home with because of the fact that she was
his lawfully wedded wife but also believed that she had an extra marital
affair with a person called Moti.
Gopal along with the help of others went to take his wife back home. He
dragged her out of the house and in the words of the court a “tug-of-war”
ensued.
Enraged by the conduct of Gopal, the father, asked that Gopal should be
beaten.
Upon hearing these words from this father, the appellant (Vishwanath)
pulled out a knife from his pocket and stabbed Gopal once.
Unfortunately the knife pierced his heart and subsequently he died to this
injury.
REASONING AND ANALYSIS:
The force used by the appellant under a reasonable apprehension
was in proportion with the fear caused by the attempted ‘abduction’
by the deceased.
The courts looked at Section 97 of IPC which gives the right of
private defense against any offence affecting the human body.
Section 99 was used by the courts and they stated that the right of
private defense in any case should not extend to inflicting more
harm than required to defend one self from the incoming harm.
The case at hand deals with Section 100. This section lays down six
instances where the right of private defense can extend to that of
causing death.
As long as the assault is “aggravated in nature” the right extends to
causing of death.
The courts further clarified that even though many of the occasions
are offences which are defined, the accused need not have the exact
mens rea for that offence.
ANALYSIS AND CONCLUSION:
The courts laid down a simple requirement of an offence which is
one of assault with the intention of abduction simpliciter.
The definition of abduction in this case should of the first type
where “a person is compelled by force to go from any place ”
The law states that the “right of private defense never extends to
causing more harm that necessary for the purpose of defending.”
The bench stated that “one blow” with a kitchen knife did not
cross that threshold where it became unreasonable.
The circumstances along with the fact it was an ordinary knife,
made the courts conclude that it was unfortunate for Gopal that
the one blow pierced his heart and resulted in his death.
The Courts allowed the S.100 of the IPC to be used in this case.
They explicitly stated that because such situations cannot be
weighed in golden scales, one blow to save his sister cannot be
judged harshly.
