Section 20 and 21 grant immunity to infant below a particular age from criminal liability. According to Blackstone infancy is a defect of understanding and infants ought not to be punished by any criminal prosecution. Section 20 totally absolves a child under the age of 7 years and Section 21 grants qualified immunity to child above 7 years and under 12 years. The law presumes that child below a certain age is incapable to taking care of his own interest and he cannot distinguish between right and wrong.
Act of a child under Seven years of age
Section 20 provides that nothing is an offence which is done by a child under Seven years of age. Children below the age of seven years are called doli incapax. This section grants absolute immunity to children under 7 years. It presumes that he cannot distinguish between 'right and wrong'. It emanates from the fact that child under seven years lacks mental ability to understand the nature and consequences of his act and therefore, cannot form the necessary mens rea. This is a conclusive presumption and cannot be rebutted by adducing evidence. In Hiralal Mallick v. state of Bihar, (1977) 4 SCC 44 Supreme Court held that the proof of age of child that he is under seven years would absolve the child of criminal responsibility.
A child exactly of seven years of age would get benefit of Section 20. The law grants such immunity because the child under such age cannot form necessary intention to constitute a crime because he lacks understanding between good and bad.
This section exempts child not only from the offence under BNS but also from the offences under special or local laws. In Queen v. Lukhini Agradani, (1874) 22 W.R. (Cr.) 27 court held that mere evidence of age would be conclusive proof of the innocence of the child and would ipso facto be an answer to any charge him.
Act of a child above seven years and under 12 years of immature understanding
Section 21 provides that 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 understading to judge the nature and consequences of his conduct on that occasion.
Section 21 provides cases of qualified immunity. In order to claim exception under this section the child must not have attained sufficient maturity for understanding and judging the nature and consequences of the act. The prosecution has to prove that child caused actus reus with mens rea and that he had sufficient maturity to understand the nature and consequences of his conduct.
Test for qualified immunity: Test for qualified immunity depends on three factors:
1. Nature of the act done;
2. Subsequent conduct of the offender;
3. Demeanour and appearance of the offender
In Ulla Mahapatra's case a boy over 11 years but less that 12 years threatened to kill a person by cutting into pieces and actually killed him. The court held that the actions of the boy could lead to one inference that he did what he intended to do and knew that his actions could kill the deceased.
In Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236 Supreme Court held that a child below the age of 7 years is completely free from any criminal responsibility but a child between 7 years of age and 12 years of age is qualified to avail the defence of doli incapax, if it is proved that he has not attained sufficient matunity of understanding to judge the nature and consequences of his act.
Child above seven years of age and under twelve years of age is governed by the maxim maliltia supplet aetatem which means malice supplies defect of years if in a given circumstances degree of malice is such that it would be justified that a child above seven years and below twelve years should be held liable.
Child above 12 years of age: Child above 12 years of age will incur full resposibility in criminal law. However, in such circumstances the whole process of trial, sentencing, rehabilitation etc. will be governed by Juvenile Justice (Care and Protection of Children) Act, 2015. Under the scheme of Juvenile Justice Act all persons who are below the age of 18 years on the date of commission of the offence shall be treated as juveniles even if the claim of juvenility was raised after they had attained the age of 18 years.
Unsoundness of mind
Section 22 deals with unsoundness of mind as a defence to criminal charge. This concept is based on the principle that a person who is of unsound mind cannot have necessary mens rea to commit a crime. As a general rule criminal intent is necessary in order to commit the crime and therefore, mental capacityof wrong doer is necessary. A person may lack sufficient mental capacity due to defect in mental capacity.
Unsoundness of mind is a defect of mind which impairs the mental faculties of a man. Such mental abnormalities may arise due to various factors and may exist in various degrees. Unsoundness of mind in terms of law (legal unsoundness of mind) means disorder of mind which impairs reasoning capacity of a person to such an extent as to render him incapable of understading the nature and consequences of his action. Number of tests have been laid down from time to time to adjudge the degree of unsoundness of mind. The most notable among them is one developed in McNaughtens's case.
In Lakshmi v. State, AIR 1959 All 534 court held that what Section 84 (now Section 22 of BNS) lays down is not that the accused claiming protection under it should not know an act to be right or wrong but the accused should be incapable of knowing whether the act done by him is right or wrong. Capacity to know a thing is quite different from what a person knows. Inherent or organic incapacity is protected and not the wrong or erroneous belief.
In Dayabhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 Supreme Court held that when a plea of insanity is setup the crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed.
Wild beast test
This test was developed in R. v. Arnold, (1724) 16 St. Tr. 695. According to this test a person can claim exemption from liability if by reason of unsoundness of mind the person was unable to distinguish between good and evil and also did not know what he did.
Insane delusion test
This test was developed in Hadfield's case. According to this test unsoundness of mind is to be deternmined by the fact of fixed insane delusions with which the accused was suffering and which was direct cause of the crime.
McNaughten Rule
McNaughten's case is an important decision on question of unsoundness of mind. In this case the accused suffered from a delusion that Sir Robert Peel, the then Prime Minister of Britain had injured him. He mistook Edward Drummond, Secretary to the Prime Minister for Robert Peel. He shot and killed him. The medical evidence showed that accused was labouring under a morbid delusion which carried him away beyond the power of his own control. House of Lord laid down the following propositions :-
1. Every man is presumed to be sane and to possess sufficient degree of reason until contrary is proved to the satisfaction of the court.
2. To establish the defence of insanity it must be clearly proved that at the time of committing the act the accused was labouring in defect of reason.
3. If the accused was conscious that the act which ought not be done or it was contrary to law then he would be punishable.
The Indian law of unsoundness of mind is based on the opinion of McNaughten case. The term 'insanity' is not used in Section 22. Courts in India have treated the expression 'unsoundness of mind' as equivalent to insanity'.
Act of a person of unsound mind
Section 22 provides that 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:-
1. The nature of the act; or
2. That he is doing what is either wrong or contrary to law.
The crucial point of time of such incapability due to unsoundness of mind is the time when he committed the offence [Hari Singh Gond v. State of MP, AIR 2009 SC 31]. In order to prove the defence of unsoundness of mind the following elements have to be proved:-
1. Medical unsoundness: Firstly, the accused will have to prove that he was suffering from some kind of medical unsoundness. It means some kind of mental disease which is capable of taking away the power of rational thinking. Medical unsoundness is the disease of mind which affects the mind to such an extent that the accused loses the control upon his body and is not capable of making right decisions. The words 'by reason of unsoundness of mind' under Section 22 refer to medical unsoundness. The accused has to prove such medical unsoundness by production of medical certificate.
2. Legal unsoundness: Apart from the medical unsoundness referred above the accused has to prove legal unsoundness as well. It must be noted that proving medical unsoundness simpliciter will not give the benefit of Section 22. Legal unsoundness can be proved by proving that due to medical unsoundness existing at the time of commission of offence the accused was incapable of knowing the nature of the act and the act he was doing was either wrong or contrary to law.
Unsoundness of mind must exist at the time of commission of offence and the onus is on the accused to prove the unsoundness of mind.
Supreme Court in State of MP v. Ahmadulla, AIR 1961 SC 990 held that if at the time of committing the act the accused was labouring under such a defect of reason, as not to know the physical nature and quality of the act he was doing, or that although he knew its nature he did not know it was either wrong or contrary to law then the benefit of this section can be given. In coming to this conclusion the relevant circumstances like behaviour of the accused before and after commission of the offence must be taken into consideration.
The expression 'nature of the act' means the charachter and consequence of the act. Duw to unsoundness of mind, the accused should have been incapable of understanding as to what he was doing and what would be the consequences. The accused is not protected if he knew that what he was doing was wrong.
In Prakash Nayi @ Sen v. State of Goa, (2023) 5 SCC 673 Supreme Court observed that the burden of proof does lie on the accused to prove to the satisfaction of the court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable material produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt.
Intoxication
Indian law on involuntary and voluntary drunkenness is contained in Section 23 and 24 respectively. A combined reading of Section 23 and 24 reveal that the former lays down the law relating to involuntary intoxication as a defence of criminal charge while the latter deals with criminal liability of a voluntarily intoxicated person.
In order to take the benefit of Section 23 it must be proved that intoxication is caused against the will or without the knowledge of the accused. Voluntary intoxication is not a defence even though due to such voluntary intoxication the accused was incapable of knowing the nature of the act. Section 23 provides that nothing is an offence which is done by a person who, at the time of doing it, is by reasona of intoxication, incapable of knowing -
1. The nature of the act; or
2. That he is doing what is either wrong, or contrary to law.
The thing which intoxicated him was administered to him without his knowledge or against his will.
The expression 'without his knowledge or against his will' means ignorance of the fact that what is being administered is an intoxicant. Where the drunkenness is involuntary the criminal act of a person will be judged with reference to his mental condition at the time when the act was committed.
In Jethuram Sukura Nagbanshi v. State of Madhya Pradesh, (1960) Cr LJ 1093 court held that in cases where the person is involuntarily intoxicated, he cannot be said to have acted on his own accord and therefore, he is not responsible for his own acts.
In Director of Public Prosecution v. Beard 1920 AC 479 court laid down that where a specific intent is essential element of offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute a particular crime. It must be noted that mere fact that an intoxicant was administered to him by another person without his knowledge or against his will, does not qualify him for exemption under this section. What is required to be established that he, by reason of the intoxicant administerd to him without his knowledge or against his will by someone else, lost his ability to understand the nature of the act committed by him. The court held that evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends that natural consequences of his acts.
Offence requiring a particular intent or knowledge committed by one who is intoxicated
Section 24 provides that in cases where:-
1. An act done is not an offence unless done with a particular knowledge or intent;
2. 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;
3. Unless the thing which intoxicated him was administered to him without his knowledge or against his will.
Section 24 creates a rule of presumption in cases where the intoxication is voluntary. In case of voluntary intoxication, there can be a case where that the intoxication was so excessive that due to such intoxication the accused became incapable of knowing the nature of the act. In such cases Section 23 shall not apply. Section 24 provides that if an offence requiring such a knowledge or intention is committed by self-induced intoxication, only knowledge, and not intention, of the offence on his part will be presumed. In effect, Section 24 imputes the same knowledge to a man intoxicated voluntarily as he would have had had be not been intoxicated. Degree of intoxication required in both the sections is same. In both the sections it is required to be shown that the degree of intoxicanon made the person incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law.
Voluntary drunkenness under Section 24 does not afford a defence where merely knowledge required to constitute the offence was wanting, though it may be used to show that any intent it required was absent.
In Basdev v. State of Pepsu, AIR 1956 SC 488, Supreme Court held that the court will only presume the existence of knowledge and not intention as mei rea. A person who gets into the state of intoxication voluntarily is presumed to have the same knowledge as he would have had if he had not been intoxicated. This presumption of knowledge in cases of voluntary intoxication is a rebuttable presumption. Intention is the highest degree of mind and it cannot be presumed. It has to be proved by the prosecution on the basis of facts and circumstances of the case.
Consent
Section 25, 26, 27 and 30 deal with the defence related to consent. These provisions lay down circumstances where consent may be pleaded as defence. The element of consent condones the offences against human body and those against property. The law related to consent is based on maxim volenti non fit injuria i.e. he who consents suffers no harm. Man is best judge of himself and no man will consent to what he considers injurious to his interest.
What is consent?
The term 'consent' is not defined in the Sanhita. According to Stephen, 'consent' means consent freely given by rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents.
Supreme Court is State of Uttar Pradesh v. Naushad, AIR 2014 SC 384 held that consent is an art of reason couple with deliberation. Section 28 further states that consent is no consent if it given under fear of injury or misconception of fact. Therefore, it follows that consent should be free in order to avail it as a defence.
In Deelip singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203 Supreme Court held that consent obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence is a mere delusion and not a deliberate act.
Consent known to be given under fear or misconception
Section 28 provides that it should be proved in order to mitigate the liability that the victim has consented to suffer wrong or injury freely. The consent should not be given by-
a. A man under fear of injury or under misconception of fact, and the person doing the act knows or has reason to believe that consent was given under such fear or misconception.
b. Person who, by reason of unsoundness of mind or intoxication, is unable to understand the nature and consequences to which he had given his consent, or
c. A child under twelve years of age.
The term 'misconception of fact' refers to misconception regarding true nature of facts. Consent can be expressed or implied. The question of consent is dependent on fact and circumstances of each case.
Section 25 gives immunity to a person from criminal prosecution on the ground of consent in general. Section 26, 27 and 30 extend protection in those cases only when the harm is caused in good faith during the course of doing an act for the benefit of consenting party.
Act not intended and not known to be likely to cause death or grievous hurt, done by consent
Section 25 is based on the principle 'volenti non fit injuria'. Following are the ingredients of Section 25:-
1. The act should not be intended to cause death or grievous hurt.
2. It should not be known by the doer to be likely to cause death or grievous hurt.
3. The harm caused to a person is with his express or implied consent.
4. The person who give consent is above 18 years of age.
5. The act should be in good faith.
For example 'A' and 'Z' agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play, and if 'A', while playing fairly, hurts 'Z', 'A' commits no offence.
It must be noted that the immunity granted under this section will not justify causing of death, grievous hurt or any other harm which is known by the doer to be likely to cause death or grievous hurt. This section will only apply when mens rea or intention to cause death or grievous hurt on part of the doer is completely absent. This section does not permit a man to give his consent to anything intended or known to be likely to cause death or grievous hurt.
Basis of Section 25: Section 25 is based on two fundamentals:
1. Every person is the best judge of his own interest and
2. No man will consent to what he thinks is hurtful to himself.
Act not intended to cause death, done by consent in good faith for person's benefit
Section 26 has the following ingredients. The act is not an offence if:-
1. The act is done is without the intention of causing death. Although it may amount to an offence by reason of any harm.
2. The act is done with the consent (express or implied) of the victim.
3. The act is done in good faith.
4. The act is done for the benefit of the person.
For example, 'A', a surgeon, knowing that a particular operation is likely to cause the death of 'Z', who suffers under a painful complaint, but not intending to cause Z's death, and intending in good faith Z's benefit, performs that operation on Z with Z's consent.
Generally, this section is used in cases related to doctors in order to grant them immunity against surgical operations. The element of good faith and benefit of person has to be proved in order to avail the benefit under this section.
Difference between Section 25 and 26
Following are the points of differences between Section 25 and 26:-
1. Under Section 25 any harm short of death and grievous hurt can be inflicted. Under Section 26 any harm can be inflicted if it is for that person's benefit.
2. Under Section 25 the person consenting must be above 18 years of age. Under Section 26 age of person consenting is irrelevant.
3. Under Section 25 an act may not be for the person's benefit. Under Section 26 the act should be for person's benefit.
Act done in good faith for benefit of child or insane person, by or by consent of guardian
Section 27 has following ingredients. Act is not an offence if:-
1. The act must be done for the benefit of the person;
2. It must be done in good faith;
3. The person may be under twelve years of age, or of unsound mind;
4. The act must be done by his consent (express or implied) or consent of the guardian or other person having lawful charge of that person.
For example 'A', in good faith, for his child's benefit without his child's consent, has his child cut for the stone by a surgeon knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the exception, in as much as his object was the cure of the child.
The immunity granted by this provision is not absolute. It is subject to 4 provisos appended to this section. This provisos are:
According to Proviso (a) this provision shall not extend to the intentional causing of death, or to the attempting to cause death.
Proviso (b) states that this section 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.
Proviso (c) states that it shall not extend to the voluntary causing of grievous hurt, or to attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity.
Provise (d) states that it shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
Act done in good faith for benefit of a person without consent
Section 30 provides that nothing is an offence:-
1. By reason of any harm which it may cause to a person;
2. For whose benefit it is done in good faith;
3. Even without that person's consent;
4. If the circumstances are such that it is impossible for that person to signify consent; or
5. 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 thim for the thing to be done with benefit.
For example, '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.
'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 bullet gives Z a moratal wound. A has committed no offence.
Section 30 covers emergency situation which are not covered under Section 27. Consent may be dispensed with when the circumstances are such as to render consent impossible or when the person is incapable of giving consent.
Communication made in good faith
Section 31 provides that 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.
For example, '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.
In X v. Hospital Z, AIR 1999 SC 495 Supreme Court held that the Hospital Z and doctors were protected under Section 93 (Now Section 31 of BNS) for disclosing to the prospective bride that the appeallant was HIV positive. This communication led to cancellation of marriage.
Act to which a person is compelled by threats
Section 32 provides that except murder, and offences against the State punishable with death, nothing is an offence which is done by a person:-
1. Who is compelled to do it by threats;
2. Which, at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise be the consequence.
The person should not on 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.
According to Explanation 1 a person who, of his own accord, or by reason of a threat of being beaten, joins a gang dacoits, knowing their charachter, 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.
According to Explanation 2 a person seized by a gang of dacoits, and force, 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.
This provision is based on the maxim actus me invite factus est nisi actus, i.e. 'an act which is done by me against my will is not my act and I am not responsible for it.' In other words voluntary act is essential to constitute crime. It is not every threat that will excuse a man from punishment. The threat in order to attract benefit of Section 32 must be of instant death to the person compelled to commit the offence.
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