Section 18 deals with general exception related to accident. It is also a statutory recognition to the common law doctrine of mens rea that there can be no crime without criminal intent. If a person performs a lawful act, in a lawful manner, by lawful means and with proper care and caution then he is not responsible for the unintended and unknown consequences of the act.
According to Stephen an effect is accidental when the act by which it is caused is not done with the intention of causing it and when its occurence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, take reasonable precaution against it.
Section 18 of BNS provides that 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.
Essential ingredients of Section 18
Following are the essential ingredients of Section 18:-
1. Act is done by accident or misfortune.
2. Without any criminal intention or knowlege.
3. Act should be lawful, done in a lawful manner and by lawful means.
4. Act should be done with proper care and caution.
For example, "A" is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if, there was no want of proper caution on the part of 'A', his act is excusable and not an offence. In another example, if 'A' work with a hatchet at a place where children are playing and the head flies off and kills a child 'A' cannot plea the defence of Section 18 because his work is not done with proper care and caution.
Accident and misfortune: Accident means such happening which is unintentional and unexpected out of the ordinary course and no man of ordinary prudence could anticipate. To bring within the meaning of the term 'accident' in Section 18, the happening must be one to which human fault does not contribute. Accident implies injury to another and misfortune implies injury to the other as well as the author.
Absence of criminal intention or knowledge: It is essential to establish the absence of criminal intention or knowledge. If the act is intentional or accompanied with the knowledge of civil consequence it cannot be termed as an accident.
Lawful act in a lawful manner: To avail the protection of Section 18 the act must be a lawful act, done in a lawful manner and by lawful means. Supreme Court in Sukhdev Singh v. Delhi State (Government of NCT of Delhi), 2003 Cri LJ 4315 (SC) held that Section 80 [Now Section 18 of BNS] exempts the doer of an innocent or lawful act in an innocent and lawful manner from any unforeseen circumstances. If either of these elements are missing then the benefit of Section18 BNS will not be given.
In State of Orissa v. Khora Ghasi, 1978 Cri LJ 1305, while guarding his maize field at night the accused in the darkness of night saw some object entering his field. Thinking it to be an animal, he shot a arrow and caused death of a person hiding. The case was covered under Section 80 of IPC [Section 18 of BNS].
In R v. Swindall and Osborne, (1846) 2 C and K 230 two car drivers after getting drunk began race with each other and drove over an old man. Both were charged with contributing to death of deceased by their negligence and improper conduct. The act of driving the car was not in a lawful manner.
Necessity
Defence of Section 19 is based on the concept of necessity. It grants immunity to person with respect to the acts done under compelling circumstances forced by necessity. It is based on the maxim quod necessitas non habet leegem i.e. necessity knows no law. Therefore, an act which is otherwise a crime may in certain circumstances be excused if the person accused shows that it was done out of necessity and in order to avoid other harm to person or property.
In Re Gopal Naidu, (1932) 46 Mad 605 court held that Section 81 [now Section 19 of BNS] rests upon the principle that 'when, on a sudden and extreme emergency one or the other of two evils is inevitable, it is lawful so to direct events that the smaller only shall occur'.
Essential ingredients of Section 19
Following are the essential ingredients of Section 19:-
1. Act is done with the knowledge that it is likely to cause harm;
2. It is done without any criminal intention to cause harm;
3. Act is done in good faith for the purpose of avoiding other harm to person or property.
For example, 'A', in a great fire, pull down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of the offence.
In order to take the benefit of Section 19 it is required to show that act complained of was done in good faith and for the purpose of avoiding or preventing a greater harm to other person or property. Explanation appended to Section 19 provides that it is a 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.
The act must be done without any criminal intention to cause harm. Intentional wrong doing cannot be justified. For example, 'A' sees a tiger attacking 'B'. In order to save 'B' from tiger 'A' shoots the tiger knowing that such act might kill 'B' if he misses the shot. If 'A' kills 'B' the he will get the benefit of this section because he had no intention to kill 'B'. He only acted in good faith to avoid harm to 'B'.
Doctrine of self preservation
The question whether how far the doctrine of necessity justifies killing of another person to preserve one's own life if discussed by court in R v. Dudley and Stephens, (1884) 14 QBD 273. In this case shipwrecked sailors killed a boy travelling along with them for food and everyone fed upon the body. It was found that if sailors had not killed the boy they would not have survived without food. Sailors took the defence of necessity. Court held that deliberate killing of a person howsoever great the temptation might be cannot be justified by necessity. The court held the sailors liable for murder. Court laid down the following :-
1. Self-preservation is not an absolute necessity.
2. No man has right to take other's life to preserve his own life, unless it is in self defence/private defence.
3. There is no necessity that justifies homicide.
In Dhania Daji's case the accused put a poison in a toddy pot with the intention of detecting theif who was in a habit of stealing toddy from the pot. That toddy was drunk by and it caused injury to some soldiers who purchased the toddy from unknown vendor. It was held that there was no necessity of detecting thief as would justify the risk of causing harm to others.
Section 18 and 19 are analogous provisions. Former deals with accident and latter deals with necessity. However, there is a difference between these two provisions. Section 18 requires absence of 'criminal intention' as well as 'knowledge' whereas Section 19 requires absence of 'criminal intention' alone. Section 19 clearly postulates that the accused had knowledge that he is likely to cause harm but under the circumstances of this section such 'knowledge' is not held against him.
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