 We thought that let's have a resource person who not only teaches in the judicial academy as such and whose sessions have been immensely popular on YouTube as well as on the Facebook and on this. Consequently, when we requested Mr. Sundar Mohan, as usual he was gracious enough to accede to the request on behalf of the team of Beyond Law CLC as is the next groups and the study circle, the TSE Chennai whose team has always been on the forefront sharing knowledge. And when two people with the same mindsets, that is the teams two teams decide to bring a good resource person. I'm quite sure that the session will have its own way understand things. Before we request Mr. Sundar Mohan to take things forward. We are enamoured by the fact that Justice P.S. Narayan has joined us on this platform, and it gives us an immense boost and asked sir to unmute himself for some brief comments upon this entire session, and it will be quite great. Justice P.S. Narayan. So we are going to unmute. Yeah, just try that. Yes, sir. You are able to hear me. Yes, sir. Everyone is able to hear you and we are all enamoured by the fact that you have joined us again. Oh, fine, giving to all of you. Good evening sir. Excellent topic you have chosen. I will also follow. Okay, okay. Thank you sir, thank you. Thank you Mr. Suresh for logging in. The entire team of TSE. Suresh is also one of the backbone of the TSE. We all have heard about TSE from down south, but TSE is a new thing which has been offered. What do you Mr. Sundar? Good evening friends. Nice to meet you all again. The topic for today is chapter four of the vinyl code, which is titled General Exceptions. In my view, this chapter and chapter two on general explanations are the two most important chapters for the defense lawyer, for a defense lawyer, and therefore this topic, I think, assumes importance. Now as the name suggests, these are all called general exceptions, as against special exceptions which we have for certain other offenses like defamation, murder, and a few other offenses where the definition clause itself provides for exceptions. They are called the special exceptions, but this chapter deals with general exceptions and it is applicable to all the offenses, not only the definition clauses, but also to the illustrations to this definition clause. Now, therefore before we start discussing about the provisions of under this chapter, one must know that this is applicable to all the offenses. This is a general exception which is applicable to all the offenses and therefore kindly see section six first before we go to this chapter itself. Section six of the Indian Criminal Code, I'll try and share it or I'll read it for you. Mr. Vikas, can I share this screen please? I hope you can see this section six. This is what it says, throw this code, every definition of an offense, every penal provision and every illustration, this is very important, not only definition, penal provision, but also every illustration of every such definition or penal provision shall be understood subject to the exceptions contained in the chapter entitled general exceptions, though the exceptions are not repeated in such definition, penal provision or illustration. Therefore, all these general exceptions have to be read with the provision. As you read a provision, you would have to read the general exceptions as well. Therefore, these are, this is a very, very important chapter. Now, let us see, go to the topic itself or the chapter four. Now, if you see, this has got about roughly about 30 provisions. Some of it are explained in nature, some of it are not exceptions in that sense. What does it, if you have to classify this chapter, you'll find that the offenses which have been committed either with no criminal intent or which are justified in law or on facts. Those are exceptions and they cannot be punished. The doer cannot be punished if he falls within these exceptions which can be broadly classified into two. One is those done without criminal intent or incapable of having any criminal intent like insane person or a person whose age is less than seven years or who is justified in the law for doing an act. So, this can be broadly classified. Now, let us deal with 76 and 79 together. So, as you can see, 76 is shown on the screen. Nothing is an offense which is done by a person who is or was or who by reason of a mistake of fact and not by reason of mistake of law in good faith believes himself to be born by law to do it. Before we go into section 76, I forgot to tell you one more aspect. Now, if you have to fall under these exceptions, the burden is on the doer. The burden is on the accused to establish that he falls under these exceptions. So, that is the first principle that you will find in section 105 of the Indian Evidence Act. Let us go to 105 of the Indian Evidence Act, which reads as follows. When a person is accused of any offense, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian criminal court or within any special exception or proviso contained in any part of the same court or in any law defining the offense is upon him. And the court shall presume the absence of such circumstances. Please underline these words. Therefore, there is a presumption of absence of exceptions. So, when there is a presumption of absence of exceptions, it is the burden is on the person who has to who says that there are exceptions to establish it. Therefore, the burden of proof is on the person who wants to say that his case falls within the exception. So, that is the first rule. Alright. What is the standard of proof? Now, is it the same as proof beyond reasonable doubt? No. The standard of proof is like in any other civil case, preponderance of probability. You will have to establish that your version is more probable than the prosecution. Therefore, it is on the basis of preponderance of probability. So, that is the standard of proof required for so far as to establish exception by a doer of an act. Alright. Now, to show that the standard of proof is only preponderance of probability. There are several judgments. You can make a note of a couple of judgments. These are not very important, but you can still make a note of it. 1974, 4 SCC, 764 and 1964, 7 SCR, 361 which says that standard of proof is by preponderance of probability. Alright. Now, let's go back to 76. Nothing is an offense which is done by a person who his or who by reason of mistake of fact and not by reason of mistake of law in good faith believes himself to be bound by law to do it. Now, you see this provision has two parts. The first part says nothing is an offense which is done by a person who has stopped there. Cut the line which is between the two commas and read it from bound by law to do it. This is the first part. So, nothing is an offense which is done by a person who is bound by law to do it. So, this is very simple. There is a law if a person is bound by law to do something, he is exonerated. So, there is no difficulty about understanding this part at all. And there are not many case laws on this first part. The law is very clear and if a person is bound by that law to do a particular act, then he is exempted or he falls within the general exceptions. For example, you see illustration B to section 6. Let me go back to section 6. This will illustrate the first part. A police officer without warrant, Apparence EZ, who has committed murder. Here, A is not guilty of the offense of wrongful confinement. For he was bound by law to Apparence EZ and therefore the case falls within the general exception which provides that nothing is an offense which is done by a person who is bound by law to do it. Now, this first part is illustrated in section B to section 6. Now, the difficulty normally arises in the second part. Now, what is the second part? Now, we will have to read with those words in between the commas to understand the second part. Nothing is an offense which is done by a person who by reason of mistake of fact and not by reason of mistake of law in good faith believes himself to be bound by law to do it. Now, here the law does not bind him to do a particular act, but he in good faith believes that by reason of a mistake of fact is bound by law to do it. This is where the difficulty arises. Now, here there is, it involves an adjudicative process where one has to determine facts to see whether the person has really done this in good faith by reason of a mistake of fact. Now, if he says it is a mistake of law, not by reason of mistake of law. If he says it is mistake of law, that is no excuse. All of us know ignorance of law is not an excuse. Therefore, it has to be by a mistake of fact believes himself to be bound by law to do it. Now, here you see illustration B to this. This will illustrate the second part which says an officer of a court of justice being ordered by court to arrest Y. And after due inquiry believing EZ to be Y, arrest EZ, EAS committed no offense. So, here E is not bound by law to arrest Y, sorry, arrest EZ, but he arrests Y believing him to be EZ. Therefore, that is the mistake of fact. Therefore, E is also protected. The person who in good faith by reason of a mistake of fact is also protected. Now, there is another interesting case dealt with by the Honorable Supreme Court in the year 1981 where a superior officer directs his subordinate to open fire on a protesting mob. Now, if the superior officer was bound by law or within law to direct the subordinate officer to open fire, there is no difficulty. Both of them will fall within the first part which says they are both bound by law to do it. Now, if what if the superior officer had exceeded his powers and illegally ordered opening of fire to his subordinate. Now, if the subordinate knows that the order is illegal and yet proceeds with the firing, then E is not protected. Now, please understand this distinction. If the subordinate knows that the superior is making an illegal order by directing him to open fire on the mob, then E is not protected. But if the subordinate by a mistake of fact believes in good faith that his superior was justified in giving the command, although the superior was not justified, then E is protected under 76. Now, this distinction is beautifully elaborated in this particular judgment. Please go through that. In 1981-4, SCC page 2, state of West Bengal versus Shio-Mangal Singh, there they make a distinction between where the superior officer, in that case they hold that the superior officer was justified. Therefore, on facts they hold that they are both bound by law to do it. But then they make a distinction where if the superior officer was not justified and the subordinate by a mistake of fact in good faith believes that he was right and he executes that order, E is also protected under section 76 part 2. So, there are two parts in this. So, please remember that one is a person is bound by law to do it and the second is even though he may not be really bound by law to do it, but by a mistake of fact he believes in good faith that is bound by law to do it. So, this is about 76. Now, let's go to 79 which is similar and then we'll deal with 77 and 78. Now, here you'll see the words used are very similar except for the fact that where we saw in 76 it says bound by law. In 79 it says justified by law. What is the distinction? Now, let's see what is the distinction? Nothing is an offense which is done by any person who is justified by law or who by reason of a mistake of fact and not by a mistake of law in good faith believes himself to be justified by law in doing it. Now, here again what do you mean by justified by law and bound by law? In 76 we saw bound by law means there must be a specific law which binds that person to do a particular act. Now, here there need not be any specific law. When you say justified by law there need not be any law which justifies a particular act. It only means all those you are permitted to do all acts which are not prohibited by law. So, you have to understand it that way. So, that is the difference between 76 and 79. For 76 there must be a specific law but 79 then if there is no prohibition under law you are justified by law to do it. So, that is the distinction please make that please understand that distinction. Now, you see the other words are very similar like nothing is an offense which is done by a person who is justified by law. Supposing you walk on the road it's just you know no law says that you can walk on the road but it's not prohibited. So, that is justified by law. But the second part is what is again which troubles is or by reason of a mistake of fact or not by reason of mistake of law in good faith believes that is justified by law to do a particular act. Now, how do you illustrate this second part? Now, you see the illustration explains that very nicely. A, C, Z commit what appears to A to be a murder. A, in exercise to the best of a judgment exerted in good faith of the power which the law gives to all persons of uprending murders in the fact, C, Z in order to bring Z before the proper authorities. A has committed no offense though it may turn out that Z was acting in self-defense. Now, here you see Z actually has not committed any offense but the man, the person who is uprending thinks that he has committed an offense. It appears to him that it is a murder and therefore he apprehends him. Here in good faith he believes that he is justified in law to apprehend him. So, this is one example. Now, in a Supreme Court, in a case before the honorable Supreme Court, a very interesting issue came up. The producers of a movie called Satyam Shivam Sundaram were prosecuted for screening obscene scenes, under section obscene obscene scenes and therefore liable for offenses under section 292 IPC. Now, the difference of the producer and the other actors, others who are prosecuted were that maybe these scenes are obscene or it may or may not offend section 292 of the Indian Penal Code but we have got a censor board certification. So, the Supreme Court went into this question and said whether or not this censor board certification will have the effect of neutralizing section 292, we will not go into that question. In any case, because they had a certificate from the censor board, they in any case in good faith by reason of a mistake of fact believed that they are entitled to screen this movie. So, it is not a mistake of law. They said it is a mistake of fact. They believed that in good faith that they are entitled to screen this movie as such in view of the censor board certification. Therefore, their act was brought within the second part of section 79 and you will find this in AR 1980 Supreme Court 605 Raj Kapoor versus Lakshman. Raj Kapoor was the person who was prosecuted and this is a very interesting case on section 79 second part. Now, there are other similar cases. For example, if a person is accused of adultery and he is able to show that he was not sure or by verification he could find out whether that lady was married. A man is accused of adultery and say if A is accused of adultery with having a connection with D, let us say B and B is an husband prosecutes A for adultery. Now, A can take a defense that he had made all reasonable enquiries and could not find out whether B was or he was made to believe that B was unmarried and therefore he had a physical relationship with B and he is entitled to a protection in the 79. But provided he must be able to establish that it was a mistake of fact and in good faith he believed that she wasn't unmarried. So that is a defense that is possible in adult cases where people are not aware of the fact that she is married or the lady is married. Likewise, if you see where there is a physical relationship with consent of a minor girl and the person is prosecuted for rape. Now, if it is a minor girl it is rape whether with or without consent. Now, if the doer is able to or the person accused of rape is able to show that he bona fide believed by a mistake of fact that this girl was above 18. She was able to show some certificates of thought. She came across some certificates of the girl etc. Then he will also fall under this particular exception. So these are some illustrations to suggest that how though he may not be justified by law by a mistake of fact or not by a mistake of law in good faith believe that he is justified by law. So this will fall under section 79. Now, 76 and 77 and 78 are acts done by judges or done pursuant to a judgment or order. So this is very simple. This doesn't need any elaboration. Let us read it for the purpose of completion. Nothing is an offense which is done by a judge. Now, who is a judge is defined in the section 19 of the Indian Penal Code. The word judge denotes not only every person who is officially designated as a judge, but also every person who is empowered by law to give in any legal proceeding, civil or criminal, a definitive judgment or a judgment which if not appealed against would be definitive. Or a judgment which is confirmed by some other would be definitive or who is one of a body of persons which body of persons empowered by law to give such a judgment. Now, you will see the illustrations where there is a power confirmed on any person to adjudicate any dispute and that judgment is definitive if not appealed against or if confirmed by self-maudhati is definitive. He will be called as a judge whether or not he is officially designated as a judge. Now, let's go back to 76. So it is applicable to not only persons who are officially designated as judges, but also persons who have this power to adjudicate disputes. Now, nothing is an offense which of course there are subtle distinctions. Now, the arbitrator is not a court judge etc. But let's not go into that. For the time being, let us understand this way. Read it along with sections 19 and 77. Nothing is an offense which is done by a judge when acting judicially in exercise of any power which is or which in good faith he believes to be given to him by law. 78 is nothing which is done in persons of or which is warranted by a judgment or order of court of justice. If done while such judgment or order remains in force is an offense notwithstanding the court may have had no jurisdiction to pass such judgment or order provided the person doing the act in good faith believes that the court had such jurisdiction. Now, if you see all these provisions, it is the doers perception on a mistake of supposing he perceives that to be a legal order and executes it, then he is protected. Now, this is the subtle distinctions but then the burden is on him to show that he had done it in good faith. So, this is about 77 and 78. There are not many cases on these two provisions but as the provisions are very clear, it doesn't require much elaboration. Now, let us go to section 80. This particular provision has given trouble to the courts while interpreting. I'll tell you why. Although the act, the section is very short and looks innocuous, but it is not so. Now, let us read the section. Nothing is an offense 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. Now, all of us know that for an act to constitute an offense, there has to be two elements, two key elements, one is mensaria and the actresses. And absence of mensaria will not constitute, if there is no mensaria, that act cannot be called as an offense. Merely because bad consequences or a consequence follows from a particular act, it does not become an offense. All of us know that. The resultant act or the mere fact that a bad consequence has followed does not constitute an offense. So, what is important is the criminal intention or the knowledge or what we call as mensaria. Now, in the absence of mensaria, it automatically is not an offense. Now, if you see, therefore, the other conditions to constitute this exception are redundant. Now, that is why this particular provision was not found in the original draft which was submitted by Lord Macaulay to the Governor-General in the year 1837. This was, this particular provision was incorporated by the subsequent drafting committee and incorporated in the 1860 act. Now, the difficulty is because of these too many conditions, you can't really bring it under ATI and this particular provision is actually redundant provision because the moment you say there is no criminal intention or knowledge or mensaria, then there is no offense at all. But to bring it within this exception, you see what all you have to establish. Nothing is an offense which is done by accident. First, you have to show that it is accident or misfortune. What is misfortune has not been defined. What is accident is also not been defined and without any criminal intention or knowledge. So, this is the most important thing, without any criminal intention or knowledge. In the doing of a lawful act, now he has to do a lawful act in a lawful manner by lawful means and with proper care and caution. So, with proper care and caution. Now, why not we ignore this section one may ask. Now, the difficulty, I'll give you two illustrations. Now, let us say a boatman takes passengers in his boat and he does not notice a particular stone or in one portion of the lake means let us say and therefore the boat collides on the stone and then ultimately the passengers are killed. Now, here you see he will be protected under this particular section for he would not be guilty of murdering or killing these people because it is an accident. What he has done is only transporting people, he has done it in a lawful act in a lawful manner by a lawful means with proper care and caution. Now, in the same illustration, let us assume that he's taking slaves or smuggling some goods along with some people, which is an illegal act and which is and which is definitely not by any lawful means. And he does the same act and it kills these people. Now, will he be liable for murder? No, but a reading of this section 80 says that since he has not done in a lawful act in lawful manner, generally people tend to say that the protection under section 80 is not available. So, minus section 80 also is protected under because he is protected because there is no criminal intention or knowledge in killing. He may be guilty of an illegal act. He may be guilty of an unlawful means in doing that act, but he may not be guilty of actually committing the crime for which he is charged. Now, another illustration is given in this lecture on criminal law by Uda, the beautiful book, where the learner author gives another example. So, he says a person with unlicensed gun goes for hunting. Let us say, so what does he do? Hunting is prohibited. The unlicensed gun that is also an unlawful act that he's doing and he accidentally kills a person who was found behind a bush thinking that he was killing an animal. He kills a person, let us say. Will he be guilty of murder? He will not be guilty of murder, though he's doing an unlawful act in an unlawful manner, but yet he will be liable only for those unlawful acts and not for the act of murder. So, this section, it is for the, in my view, and it is for the audience to ponder and think as to how this is relevant. In fact, that is why this particular provision was not found in the previous code submitted by the draft submitted by Lord McCullough. So, this is about section 80. So, what you have to understand is, when there is no intention and knowledge, that is good enough. That itself will observe you from the offense. There is no, there's no other thing required. But all other words are redundant. Therefore, in my humble view, this particular provision is a redundant provision. Now, let us go to the next provision. This is a very interesting provision, again misunderstood by many people. It is understood to mean that to prevent a greater harm, one can cause a slight harm to a third party. Now, let us read this provision and this is the impression that many people give, not only because on the plain reading of this provision, but also after reading the illustrations. Let us read this provision. And then I explained to you, that's not the only meaning that it should be given. That's not the only meaning that can be given to this provision. Nothing is an offense merely by reason of its being done with the knowledge that it is likely to cause harm if it be done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property. Now, you see here, now here's the knowledge, there are two, all of us know, when you talk about minceria, there are two types of mental states, two types of minceria. One is doing an act with the knowledge and the other one is doing the knowledge act with the criminal intention. So criminal intention is far worse because you not only have the knowledge that you are going to likely to commit the weapon, but also one more thing that you want to do it. But in knowledge, you have the only, there's only one part of that criminal intention. That is, you have knowledge, but criminal intention is something more than knowledge. You have not only the knowledge, but also the wanting to do that intention to do that, wanting to do that particular act. So here, therefore if you see that distinction you will have to make while you're reading section, the provisions and general exceptions, also any other criminal provision will have to make the distinction about these two mental states difference. That is, one is knowledge and the other one is intention. Now, here you see the act is done with the knowledge that it is likely to cause harm. So that knowledge part is there, but if it be done without any criminal intention, he does not intend to cause harm. That is very important. If he intends to cause harm, then he does not fall within that exception of section 81. Therefore, first thing is, even though he has knowledge that he is likely to cause a harm, but he does it without any criminal intention and in good faith for purpose of preventing or avoiding other harm to either person or property. Now, 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. So it is a question of fact is what the explanation says. Now, let us read the illustration. A, the captain of a sea vessel suddenly and without any fault or negligence on his part finds himself in such a position that before he can stop his whistle, he must invariably run down a boat B with 20 or 30 passengers on board, unless he changes the course of his vessel. And that by changing his course, he must incur the risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in board B, he is not guilty of an offense. Here you see the captain's intention was to not run down the passengers in board C. His intention was to save the passengers in board B, where the number is more. Therefore, his intention is only to save and not to cause harm to the board C, though he is aware that he has knowledge that by altering the course is likely to cause damage or danger to the passengers in board C, which has got lesser number of passengers. Now here, one may immediately conclude by reading this illustration that to prevent a greater harm, you can cause a slight harm. But this act, if you see the provision does not say anywhere about greater or lesser harm. Now, there are three types of situations that one can visualize under section 81. First is to prevent greater injury, you cause harm to someone which is lesser in gravity, just as we saw in the illustration. That is the first illustration, that is the first situation that one can think of. A second situation is when you talk about avoiding harm, other harm to a person or property, it includes harm to oneself. Now, if you have to prevent greater harm to yourself or to your property, you are justified in causing a lesser harm to another person. That is the second situation. If a smaller injury is caused to another person to prevent greater injury oneself, that is the second situation. Now, the third type of situation is to prevent injury to a person and when that person is put to an equal or a greater injury, let me illustrate this. Now, you are putting that person to a particular type of, you are risking or you have the knowledge that you are likely to put that person to a particular type of injury to prevent an equal or a greater injury or even a lesser injury. Let me illustrate it this way. Now, you see a tiger attacking or the tiger fast approaching a person. Now, you will have to shoot at the tiger. You are aware, by that act, you are likely to kill that person also. When you are shooting at the tiger, you are likely to harm that person or even kill that person. But yet, you can proceed with that act, though you know that a tiger may or may not kill that person. See, that can cause a lesser injury. But by that act, you are causing a greater injury even though that you have a knowledge that you are likely to cause a greater injury to that particular person by shooting at the tiger and missing the tiger and killing that person. You are still entitled to protection under section 81. This is even if it is a greater or a lesser injury that is sought to be avoided. But these are the situations. Now here, therefore, the explanation which makes it very clear, it is a question of fact in such a case whether the harm to be prevented or avoided was of a such a nature or so imminent to justify the excuse or risk of doing the act. Now, here, so this is about section 81. So, wherever you feel that harm or it can be prevented without any criminal attention cause another harm to third party or greater injury, then it is greater injury. So far as greater injury is concerned, it is when you want to prevent a greater injury to yourself, your intent to cause a lesser harm. You can't prevent a lesser harm to yourself and cause a greater injury to others. That is where the distinction arises. So, that distinction one must understand. So, the broad test is if it is equal, supposing there is a choice between your life and another man's life, what do you do? You can't take that life on other person. The choice is you have to take away your life. So, if the choice is equal, that is your life or the other man's life, you have to take away your life. That is the test that is applied by a court. So, the explanation also would suggest whether to harm to be prevented such a nature or to imminent to justify or excuse the risk of doing the act. All right. Now, this is about section 81. Now, let us see section 82. So, 82 is founded on the principle of doli incapac. Doli means crime, incapac means incapable of committing a crime. So, doli incapac means incapable of committing a crime. So, the law presumes that a child below seven years is incapable of committing an offense and this presumption is conclusive. So, there is no rebuttal and the prosecution cannot prosecute a person who is aged less than seven years of any offense. So, this is very, very clear. Nothing is an offense which is done by a child under the seven years of age. Now, 83 is slightly different where there is a rebuttable presumption. Now, here also there is a presumption that a person below 12 years is incapable of or does not have the sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. So, that is a presumption but it is rebuttable. The prosecution can establish that the person who committed the offense was at the sufficient or attained the sufficient maturity of understanding to judge the nature and consequences of his conduct. So, in 82, it is a conclusive presumption that it is incapable of committing an offense. Here it is a rebuttable offense. Therefore, unlike the other general exceptions, so far as Section 83 is concerned, the burden is on the prosecution to show that the child between the age of seven and twelve was at the sufficient maturity of understanding to judge the nature and consequences of conduct. So, here, so you can take it that a person below 12 years is incapable of committing an offense. But if he is between seven and 12, the prosecution if it is able to show that the person is capable of understanding or the doer is capable of understanding the nature and consequences of act, he is also guilty. So, that is a rebuttable presumption. Now, some of the interesting illustrations you will find in cases where a boy of 12 years at some, along with his brothers attacks his uncle for some property dispute and he wields a knife and on the neck of the person, on the victim. So, there the court found that this person who was able to wield a knife was 12 years, was able to wield a knife, understood the nature and consequences because he knew that neck was a vital part and if you attack a person in the neck, he is likely to die. And therefore, he was prosecuted and he was also convicted for attempt to murder. I am not sure of where you can have a look at the judgment. In 1977, for a CC page 44, this is an interesting date, please go to the document where they discuss about, in fact, they discuss about juvenile justice, the juvenile justice actor then not coming to force, but then they say, the juveniles cannot be punished at that. But then they had, at that point of time, they were confined, they were bound by the law and therefore they are constrained to convict the accused of 12 years, who was aged 12 years. So, this is about, so the only distinction here is the, it is on the burden was on the prosecution here unlike the other general exceptions, the presumption is rebuttable and the child between 7 and 12 years can be prosecuted if he's got sufficient which you can understand. The next is a very important provision, which you all often discuss about, is the act committed by a person of unsolved mind. Now, let us see what this provision actually tells us. Nothing is an offense, which is done by a person who at the time of doing it, by reason of unsolved of mind is incapable of knowing the nature of that or that is doing what is either wrong or contrary to law. Now, this provision also was not found in the original draft. The original draft said, nothing is an offense, which is done by a person who suffers from mediocrity. That was as simple as that. Now, there's no such thing as unsolved of self-mind or incapable of knowing the nature of that or that is doing what is either wrong or contrary to law. Then, how did this particular provision come up? What had happened was, there was a case in London where one magnotin had, was suffering from some stent disease of illusion and he suffered, he thought that the prime minister was the cause for all his problems in life. And therefore, he goes and kills his personal secretary, one Edmund Drummond, thinking that he is the prime minister. So, the defense taken by him was that he suffered from insanity and therefore, he should not be punished and his defense was, he was accepted and he was acquitted. And this issue came up for debate before the House of Lords, then they wanted a definitive opinion from the House of Lords. Five questions were put to the House of Lords based on this particular case and the House of Lords answered it. The answers to questions number two and three were incorporated in this particular section. They said, if any person who suffers from unsoundness of mind is incapable of knowing the nature of act or that is doing what is either wrong or contrary to law, then he should be accepted and he should not be guilty or made guilty of the offense. Now, the rules and the questions and answers to this, what was placed before the House of Lords is extracted in a judgment of the Honorable Supreme Court in 2010, 10 ACC page 552, 582, Sudhakaran versus state of Kerala. Please go to this judgment, very interesting there, where they say as to how this particular provision came about. So, that's about the history of this particular provision. Now, let's go back to the section as to what it means actually means. Now, what does the doer has to establish three things. One, that at the time of doing it, that must be relevant, it must not be a past event. At the time of doing it, he must suffer from unsoundness of mind. That's the second thing that he must establish. And not only that, because of that unsoundness of mind, he was incapable of knowing the nature of the act. So, it doesn't stop with unsoundness of mind. Because of that unsoundness of mind, he was incapable of knowing the nature of the act or that is doing what is either wrong or contrary to law. So, these three things have to be established. Now, here at the time of doing it is very clear. So, he must at that particular point suffer from that unsound of mind and incapable of knowing the nature. So, what is unsoundness of mind? This has not been defined. This has not been defined. It has, we have all often said that it refers to insanity. Now, insanity is again not defined. Therefore, the quotes have come up with theory that insanity means he must first suffer from some kind of a medical insanity. So, once there is a medical insanity established, the, that by itself, if so factor will not absolve him of the efforts. There must be something called legal insanity. What is legal insanity? That must be something more. What is that something more that apart from that medical insanity, he must be incapable of knowing the nature of act or that is doing what is either wrong or contrary to law. Now, therefore, all those persons who are medically unsound are not protected or will not come under within these exceptions. So, medically unsound person must further establish that because of his unsoundness or because of that particular insanity, he was incapable of understanding the nature of the act or that is doing what is either wrong or contrary to law. Now, this is established. Now, how do you show that he was incapable of knowing the nature of the act? That is again his mental process. How do you establish that? How do you, how is the, how can a difference establish that? Again, the courts have laid some tests based on some suggestions made by the great jurist, John D. Maine. He suggests some tests for seeing whether this particular person was really incapable of knowing the act or what was doing was either wrong or contrary to law. Now, the tests are like this. The first test is whether there was a deliberation and preparation by the doer for doing that act. If the answer is yes, then he was capable of knowing the nature of the act. If the answer is no, then that is the first test that he has passed. That is, he was, he had not done this act by any kind of a deliberation or preparation. That's the first test. Then, whether it was done in a manner which showed the desire to conceal the offense. Supposing the man did that offense and tried to conceal it by say, for example, washing the blood stains off or any other manner of concealing it, then again, he was capable of knowing the nature of the act. So, if the answer to the question is, desire to conceal was there, if the answer is yes, then again, he was capable of knowing the nature of the act. He fails in that test. So, if he passes in these two tests, then the third test is after the crime, if the offender shows consciousness of guilt and made efforts to avoid detection. Now, supposing he runs away and he made efforts to avoid detection, that's the third test. There also, he is capable of knowing the nature of the act. Then the fourth test is whether he gave false excuses and false statements after others. Now, all these tests, John DeMaine says are not conclusive. They at best will show you inferential insanity. This can be fake. All these symptoms or all these tests can be passed by faking it. Now, therefore, these are not conclusive. Therefore, again, it is for the courts on facts to determine whether maybe they can use this test as a guidance. Supposing, in a broad daylight, a person commits a murder in the presence of, say, a few policemen and walks directly to them without any effort to conceal it or without any repentance, that all those might indicate that he is incapable of provided, is otherwise supposed from medical insanity also. So, this is an, in fact, in one of the cases, they discuss a very interesting situation where a person was prosecuted for murder. The man in which he committed murder was very ghastly. He cuts the, he chops the head off of his friend who was sleeping next to him and then puts the head in the cupboard. And then he says when the police and sleeps with the dead body. Next day morning when the people come and ask him as to what happened, he says, I wanted to play a prank on my friend. I wanted to take his head off and keep it away so that he goes in search of it. So, this is a clear case of extreme case of unsoundness of mind and where you see the conduct, he not only does that, he sleeps with the, he does, there's no effort to conceal, there's no effort to escape, etc. So, this is one extreme case of unsoundness of mind that courts have discussed in one particular case. Now, the interesting case laws on this subject, you can make a note, are reported in 2011, 11 ACC page 495, Surendra Mishra was the state of Jharkhand and then Bapu was the state of Rajasthan, 2007, 8 ACC page 636. Then Sikant Anandrao was the state of Maharashtra, 2002, 7 ACC page 748. So, here therefore what does the doer got to establish if he wants to be protected under this or come under within this exception, he must say that at the time of doing it, he suffered from some kind of unsoundness of mind. And because of that unsoundness of mind, he was incapable of knowing the nature of that or that he's doing that, what is he either doing or wrong or contrary to that. So, there is a general presumption, like there is a presumption that the courts will always have, draw the presumption that there are no exceptions in a particular case. It is for the doer to show that he falls within the exception, whether it is general or special. Likewise, there is a presumption that every person is sane. So, to show that he is insane is for the person who wants to establish that he is insane. Section 85 is again very similar. Only difference is the unsoundness of mind is replaced by intoxication. So, nothing is an offense which is done by a person who at the time of doing it is by reason of intoxication incapable of knowing the nature of that or that he is doing what is either wrong or contrary to law provided that the thing which is intoxicated was administered to him without this knowledge or against his will. Now, here the law presumes now a reading of this section says a law presumes that by reason of intoxication a person may or may not be incapable of knowing the nature of that if he is intoxicated. Now, so intoxication here again like you saw in unsoundness of mind, here again intoxication by itself is not a difference. He must not only be intoxicated, one that intoxication must have been administered to him without his knowledge or against his will that's the second condition. And third condition is very, very important because of that intoxication he was incapable of knowing the nature of that or that is doing what is either wrong or contrary to law. Again, this third aspect of incapable of knowing the nature like I told you in section 84 Insanity is also have to be determined also have to be determined on the basis of facts. Supposing his conduct was such that he was incapable of knowing the nature of that then he will be protected, provided the intoxication is administered to him without his knowledge. There are not many cases on this provision as well because there are very rarely you come across situations where a person will fall under all these things. Firstly, he must be intoxicated, intoxication must be administered to him without his knowledge or against his will and then he commits an offense. So, it's a very rare combination so you can't find many cases under section 85 also. Now, here 86 is important 86 is not an exception. Now, you understand in fact it should not have come under the general exceptions because it is not an exception. It is only an explanation section 86 if you read it very carefully is an explanation. Let me read the story for you in cases where an act done is not an offense unless done with the particular knowledge or intent. A person who does an act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have done if you have not been intoxicated unless the thing which intoxicated him was administered to him without his knowledge or against his will. Now, let us take an example of a person who is intoxicated on his own will or voluntarily intoxicate himself. So, if that person commits an offense, like I told you in 85 the law presumes that sometimes the intoxication will tend to make a person incapable of knowing the nature of the act. So, if a person whether it is voluntarily administered or against his will the liquor or the intoxication has the effect of making him unable to understand. So, they wanted to make that very very clear. If a person voluntarily intoxicates himself and even if he is unable to understand the nature of the conduct he is still liable because he can then take the defense that I did not have the requisite ministry or knowledge. He may not have had the requisite ministry or knowledge, please understand this distinction very clearly. He may not have had the requisite ministry or knowledge which would have otherwise absolved him of the offense. But if he had intoxicated and voluntarily and even if he was incapable of understanding or the nature of the conduct is still be liable by virtue of the explanation. I may call it explanation, it is not an exception under section 86. I hope I have made myself clear. The only distinction between 85 and 86 is 85 is an exception that if it is administered without his knowledge or against his will and he has done something without knowing the nature of the act then he is accepted under 85. But under 86 the law makes it very very clear that even though a particular person may not have had the requisite ministry or he is still liable if he had voluntarily intoxicated himself and committed the act. Now, here it says with a particular knowledge or intent again the so that these two menstrual are also presumed if he had voluntarily intoxicated himself. So, this is an explanation and not an exception. So, please understand this is the distinction between 85 and 86. Now 87 to 92 fall under one category. Those are categories where harm is caused to a person who has consented to suffer that harm. Now, what is the distinction between all these five sections? You will find that they are very interestingly divided and classified into five different provisions. The first thing is about, first thing, first provision is section 86, 87. When an act, let me read the section provision and then explain to you nothing which is not intended to cause death or give a set and which is not known by the doer to be likely to cause death. So, please understand, please make a note of these two intentions. First of all, the doer must not intend to cause death or give a set and he must not have the knowledge also that that act is likely to cause death or give a set. So, this is very, very important. If these two conditions are satisfied, that is not enough. By reason of any harm which it may cause or intend to be caused by the doer to cause to any person above 18 years of age who has given consent, whether experts are inclined to suffer that harm or the reason of any harm which it may be known by the doer to likely to cause any harm such person who was concerned to take that risk of that harm. Now, here the victim who is above 18 years gives a concern to suffer a particular harm. That particular harm will not extend to either death or grief was hurt. Please understand, this will not extend to either death. Sorry, nobody can give concern to kill oneself. That is not what is contemplated under section 87 that even if a person gives a consent also, the other person has no right to cause death or grief was hurt unless it falls within any of the exceptions that you would now presently leave 88 to 90. So, here the doer of the act does not intend to either cause death or grief was hurt or does not have knowledge that it is likely to cause death or grief was hurt. Causes harm to another person who has given concern to suffer the term. For example, how do you give concern to either implied or express supposing there is a sports event like for the illustration as it suggests A and Z agreed to fence within just for amusement. Now, here both of them agree that it is likely to cause harm. Both of them concern to the other person that by agreeing to indulge in Z score they are causing harm to they are likely to cause harm to each other. They are both protected provided both did not intend to cause death or did not have the knowledge to cause death or grief was hurt. Very important is grief was hurt also. So, here therefore if these two conditions are satisfied, neither knowledge nor intention to cause death or grief was hurt is not there. Then the consent by a person above A is that then he is protected under section 87 or any other sport for that exam and boxing you can take boxing you can take even cricket. There is no intention to cause death, but there are people who have died of the cricket field. Now, section 88 is slightly different. Now, section 88 gives one more concession that is the doer of act does not intend to cause death, but he knows that it is likely to cause death. Now, the distinction between 87 and 88 here is one mensaria is only ruled out the intention to cause death is ruled out. But there is a knowledge that it is likely to cause death, but yet he does that act because in good faith he believes that it is to prevent another harm. For example, it applies to surgeons, surgeon knowing that a particular option operation is likely to cause the death of Z. He knows you remember unlike 87 here he knows there is a knowledge also who suffered under the painful complaint, but not intending to cause death. And intending in good faith that for death benefit performs that operation on Z with death content he has committed no offense. So, here you see the doer of the act knows while performing that operation for let us take the case of our doctor. While performing the operation he knows that it is likely to cause death, but yet he is protected because the reason is he knows that it is he is doing that for the benefit of the person who is given that consent. So, therefore he is protected under section 88 and there are number of cases where doctors have been prosecuted who will fall under the exception to section 88. Before we I think maybe we can stop here and the remaining sections we can do in part two. What do you say Mr. Vikas? We have already done more than I think the attention span may. We will do part two especially we have also written on the creative also from its part one. Yes, yes, yes we will do it in part two. See that as it may one can connect with this session and thereafter they can also log in for the second session. Yes, yes, yes. Yeah, one question has come can I a person intoxicated in the section under 86 take defense of an accident as there is no knowledge and intention. Intoxication? Let's assume a person is an intoxicated and there is an accident. Can he say take the defense of accident under section 80? No, see if it is done with the if if we had not done with the intention now there is a recent judgment of Audubon Supreme Court he says knowledge can be presumed if a person is intoxicated. Knowledge that it is likely to cause harm to another person can be presumed if he's intoxicated therefore he cannot have that difference under section 80. So there are two mental states I telling you either intention or knowledge. So the knowledge can be presumed if a person intoxicates himself voluntarily and causes accident and say for example causes death of another person. He prosecuted for 304 part two where he's presumed to have had knowledge of the desired consequences. The, not the desired consequences knowledge of the consequences. This is the complainant is the aggressor push the accused accused right to save himself and push them away. The complainant fell down and fractured the arm. Can the accused claim exception of self defense. Yes, yes. So we had only two questions. Yes. Next session. Yeah. One more has come. If a person who wants to end his life allows another to kill him and cause his consent on video film. Will the other person be guilty? He will not. The other person will be guilty of culpable homicide because he will fall under exceptions. He will not be totally exonerated even if the other person concerns he has no right to kill. Another is when Naveen Kumar he says kindly explain the doctrine of necessity at the section 81. Yes, doctrine of necessity again it is based on facts as we saw the illustrations or the explanation to the section. It depends on facts of each case. There are three situations that are usually we should have that will come under that provision. Like you saw preventing a greater arm, you, you cause a lesser on to some person or to prevent a great injury to oneself, you cause a lesser on to another person, or you know that there's a equal injury or harm is likely to be caused to a particular person. You cause a greater injury. So these are the three situations all depends on facts. The expression is very clear to that person. Any other question? That is merely asking. Yes. When will be the next session I said that we can connect on the WhatsApp number. Yeah. So thank you Mr. Sundar for helping us to understand the nuances of the general exceptions. Normally as a student and as a lawyer one does redevelop it. But what would be the legal journey and what could be the differences as you rightly said for a defense counselor to understand all this. After you have the insights. Then they can understand the much better way subsequently because you are once you have the, as they say then you can push the envelope of thought processes to understand the things in the better way. So everyone stay safe, stay blessed. And as we keep on saying those were not vaccinated. They should get themselves vaccinated. Thank you. Thank you. Thank you. Thank you Mr. Suresh and thank you Mr. Justice. Thank you.