Variations in Criminal Liability

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VARIATIONS IN CRIMINAL LIABILITY Ms. Archana Sarma Assistant Professor, ITM Law School Gurgaon 1

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Case I A man before going to church, fired off his gun, and left it empty. But during his absence some person went out shooting with the gun and, on returning, left it loaded. The owner, late on the same day, took up the gun again and, in doing so, touched the trigger. The gun went off and killed his wife, who was in the room. Can he be held liable for causing death of his wife? 2

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Case II A gave grave and sudden provocation to B. B on this provocation, fired a pistol at A, neither intending nor knowing himself to be likely to kill Z, who was near him, but out of sight. Z was killed. Can B be held liable for killing Z? 3

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Fundamental Principle of Criminal Liability Actus non facit reum nisi mens sit rea (the act is not culpable unless the mind is guilty) Mens rea Voluntariness Omissions & acts Omissions & acts Omissions & Acts Causation Basic intent Specific intent Actus rea Liability Culpability Penalty 4

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Basic Rules of Criminal Liability Basic Rules – Direct or indirect contribution to the actus reus. Voluntary conduct Foresight of consequences at the time of act or omission Application of the rules in Case I and Case II 5

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Culpability and Variations in Liability Culpability – the primary basis of punishment under the criminal legal system of any country. Culpability is dependent upon the degree of liability . Liability varies from cases to cases. Application of the basic rules of liability in the two cases indicates variation in liability. There are instances where liability is lessened or entirely excluded owing to special circumstances or to something peculiar to the person who has brought about the actus of a crime. 6

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Factors responsible for Variations in Liability Liability lessened or excluded Culpability Variations Liability Mistake Intoxication Necessity Sovereign Infants Insane Persons Legally Abnormal Persons Special Circumstances

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Mistake Conditions to be fulfilled for availing mistake of fact as a defence (Sections 76 & 79 of IPC) The mistake must relate to FACT and not to LAW The state of things believed to exist would, if true, have justified the act done. The mistake must be reasonable Acts done under order of a superior authority – the accused believing himself to be bound by law was entitled to the protection under S. 76 (State of West Bengal v. Shew Mangal Singh AIR 1981 SC 1917) Charges of obscenity - Prior certification by the Censor board provides justification in law in exhibiting the film. (Raj Kapoor v. Laxman AIR 1980 SC 33) 8

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Intoxication Involuntary intoxication under the Indian Penal Code (Section 85) Incapacity to know the nature of his act Incapable of knowing that the thing he was doing was either wrong or contrary to law Intoxication without knowledge or against will Voluntary intoxication under the Indian Penal Code (Section 86) Presumption of particular knowledge or intent . Jethuram Sukhra Nagbhansi v. State AIR 1960 MP 242 (nature of intoxication on the basis of interpretation of 'against the will') 9

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‘ An act done by me against my will, is not my act ’. Defence of compulsion under Section 94 of IPC (except murder and offences against the State punishable with death) Defence of necessity (Section 81 of IPC) is based on the maxim ‘ necessitas vincit legem’ i.e. ‘necessity overcomes law’ Necessity as a reason for homicide ( R v. Dudley and Stephens [1884] 14 QBD 273 ) Gopal Naidu v. Emperor AIR 1923 Mad 523 (offence committed for the purpose of preventing or avoiding other harm to person or property is justified under Section 81) Compulsion and Necessity 10

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Legally Abnormal Persons Persons who are not invested with the same responsibility for their acts as are those whom we term as legally normal owing to some peculiarity in themselves. e.g. The Sovereign Infants Insane Persons 11

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Sovereign Based on the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution A sovereign is superior to all in authority and power. It prevents, in advance, a suit or prosecution against a sovereign, being a monarch, ruler, or government, without the sovereign's consent. Article 361 of the Constitution of India.

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Infants Moral delinquency – a pre-requisite of criminal guilt. Doli incapax - Incapacity to understand the nature and consequence of an act or omission – basis of exempting a child below seven years from criminal liability (Section 82 of IPC). Partial immunity for children between seven and twelve (Section 83). 13

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Insane persons Insanity - a complete defence to criminal liability in offences involving mens rea Mc Naughten Rules Insanity in IPC – Section 84 Difference between LEGAL INSANITY and MEDICAL INSANITY – every type of insanity is not a legal insanity unless the cognitive faculty is destroyed as a result of unsoundness of mind. Baburam Mahali v. State of West Bengal (2005)3CALLT331(HC) 14

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Culpability and Exclusion from liability - A balanced approach Imposition of harsh penalties without considering blameworthiness is morally repugnant. Violation of rules of criminal law does not always imply appropriate liability. Factors affecting liability must be considered while determining culpability. Cases of exclusion from liability must be duly substantiated. 15