• Legis Scriptor

General exception to criminal liability: Theoretical Foundation

Authored By Ishaanvi

Keywords: Supreme Court, criminal law, punishment, mens rea.


In one of the landmark judgment, the Supreme Court criminalized sex with a minor wife aged below 18 years. The court overturned an exception in rape law which permitted a husband to have sex with his wife aged 15 years and above regardless of consent, including punishment. The Criminal law covers various punishments that vary from case to case. But it’s not always necessary that a person gets punished for a crime which he/she had committed. Section 76 to 106 of the Indian Penal Code (chapter IV) covers the defenses which are based on the presumption that a person is not liable for the crime committed. The defenses depend upon the circumstances prevailing at that point of time, mens rea of person and reason ability of action of that accused.


Criminal liability is being liable for a criminal act.[1] It states that no one should be convicted or held liable for a crime unless some measures of subjective fault can be attributed to him. This means that a person must perform an act (actus reus) and should possess the guilty intentions (mens rea) required for the commission of an offense. These two elements are a sine qua non to a commission of the offense as failure to establish those elements will lead to an acquittal. Section 76 to 106 of the Indian Penal Code (chapter IV) covers such defenses which are based on the presumption that a person is not liable for the crime committed.

· Burden of proof

Section 105 of the Indian Evidence Act states a burden of proof lies on the accused to prove the existence of a situation of general exceptions. Usually, Prosecution has to prove its case beyond reasonable doubt against the accused. Earlier, the prosecution had to prove that the case does not fall under any exception, but section 105 of Evidence act shifted the burden on the claimant.

General exceptions recognized under the Indian Penal Code

The general exceptions are of two types:

a) Excusable acts: include a mistake of fact, accident, infancy, insanity and intoxication

b) Justifiable acts: judicial act, necessity, consent, communication, duress, trifles, private defense.

i. A mistake of fact: (section 76-79) Act done by a person bound or by mistake of fact believing, himself to be bound by law is included. It is based the legal maxim “ignorantia facti doth excusat, ignorantia juris non excusat”.[2]

ii. Accident: section 80 includes an Accident committed while doing a lawful act. Nothing is an offence that is done by accident or misfortune, 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.

iii. Infancy: section 82 and 83 includes an act of a child above seven and below twelve of immature understanding. Nothing is an offence that is done by a child above seven years of age and under twelve.

iv. Insanity: section 84 includes Act of a person of unsound mind. It excludes a person from criminal liability if he is of unsound mind at the time of the commission of the offense.

v. Intoxication: section 85 states that an individual is intoxicated involuntarily and section 86 states that a person is intoxicated voluntarily.

vi. Judicial act: (section 77 and 78) it excludes judges and is done in compliance with an order from the court. It is an act which would have been wrongful under normal conditions but the circumstances under which the act was committed makes it tolerable and acceptable.

vii. Necessity: section 81 states that an act that is likely to cause harm but done without criminal intent, and to prevent other harm.

viii. Consent: section 87 states that the consent was given by the victim for the harm to occur or the act was beneficiary to the victim (section 88) or the consent was given by the guardian to take the risk for the benefit of the child.

ix. Communication: section 93 states that communication without a 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.[3]

x. Duress: according to section 94 if a person is compelled by threats to perform an act is not an offence.

xi. Trifles: according to section 95, if an act causes slight harm, then it isn’t considered as an offence.

xii. Private defense: section 96 states a harm caused to a person in the exercise of private defense is not considered as an offense. Section 97 states the right to private defense. Section 99 states that private defense can be considered an offense under some reasonable circumstances.


Above are the general exceptions available to the accused to protect him from the offense committed. This may even extend from causing the death of a person to causing harm to a person depending upon the situation. Even though the Indian Penal Code states that all criminal acts must be punished, it also apprehended that not all acts are punishable. These general exceptions are based on the legal maxim “Audi alteram Partem” so that the accused can represent himself in the court.







[1],such%20belief%20in%20good%20faith [2] [3][3]