General Defences

by



 

General Defences

Vis Major or Act of God

When something occurs over which you have no control and it is effected of accentuated by the forces of nature then you are not liable in tort law for such inadvertent damage that may arise out of such. However if you were well aware of the risks and could have possibly taken steps to stop the wrongful act or damaging act or have in anyway mitigated it then you cannot duck responsibility under this defence. Constituents of this defence:

  • Due to forces of nature or unnatural circumstances.  
  • You had no control over it and it happened suddenly.  
  • You had no knowledge or could not do anything to mitigate the damage.

Plaintiff the Wrongdoer

Let’s take an illustration to understand this concept. Ketan and Shailesh are next door neighbours. However they cannot stand each other and have frequent quarrels which often turn nasty. In the dead of night Ketan steals into Shailesh’s property claiming he wanted to take a walk in the latter’s gardens. Shailesh had a pet dog called YenYalYas who jumped at Ketan. Ketan files a suit claiming damges from Shailesh. Shailesh can take the plea of ‘plaintiff the wrongdoer’ as Ketan himself had first trespassed onto his property and thus could not claim a suit having committed a wrong himself in the first place.

Volenti non fit injuria  

This principle states that if one voluntarily takes the risk of something then he may not claim a suit of action of such risk leads to injury. However this risk must have been taken under free consent and not under coercion and with the full knowledge of the risk.  A corollary of this principle is Scienti non fit injuria which means that only knowledge of the risk is not enough to claim defence there must be acceptance to undergo the resultants of the risk undertaken. There had to be consent and mere knowledge is not sufficient.

Private Defence  

Nothing is wrong if done with regard to protecting one’s own self, another self, one’s property or another’s property against a threat to such. Suppose Someone points a loaded gun at me and threatens me I do have the right to bodily harm that person in order to save myself or someone else. However there are limitations to such rule with regard to the force being used which must be proportional to the risk presented.

Inevitable Accident

This is a defence that can be claimed under a situation where inspite of taking reasonable care and protection the harm could not be averted. This does not mean absolutely inevitable but unavoidable even after taking necessary precautions with respect to the harm in question.  

Mistake  

This is not a very often claimed defence as it is very hard to fit in a case into the subtle limits of this defence of ‘mistake’. This refers to a particular case wherein a person was under mistaken knowledge usually and even after taking reasonable precautions could not have been reasonably expected to not commit the so called ‘mistake’.

Necessity  

Under dire conditions if one does something which results in a tort then once can usually claim the defence of necessity. Such condition should however be able to come under the bracket of ‘general good’ or ‘greater good’ and to prevent a bigger harm.

Offences against Person

offence against the person” usually refers to a crime which is committed by direct physical harm or force being applied to another person. They are usually analysed by division into the following categories:  

  • Fatal offences
  • Sexual offences
  • Non-fatal non-sexual offences

Murder and culpable homicide

Culpable Homicide

  • A person commits culpable homicide, if the act by which the death is caused is done. The intentions can be :
  • With the intention of causing death  
  • With the intention of causing such bodily injury as is likely to cause     death Knowledge  
  • With the knowledge that he is likely to cause death
  • Culpable homicide is the genus and generic term.
  • There is intention, but the intention may or may not exist. Even if exists it is not so much stronger as is evident in murder.
  • Intention to kill can be the number and nature of wounds or injuries on the body of the deceased, for example, if one dies with beatings received twice with fists on head, it is a culpable homicide.
  • Less serious when compared with murder.
  • Every culpable homicide is not murder (it may or may not amount to murder).
  • Culpable homicide is not murder if the case falls within any of the exceptions mentioned in Section 300.
  • Punishment is lesser than murder.

The maximum punishment for culpable homicide is imprison­ment for life (under Sec. 304) or imprisonment of either des­cription for a term which may extend to ten years and shall also be liable to fine (Sec. 304).

 

 

Murder

  • Subject to certain exceptions, culpable homicide is murder, if the act by which death is caused is done:
  • With the intention of causing death
  • With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused  
  • With the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;  
  • With the knowledge that the act is so imminently dange­rous that it must in all probability cause death, or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
  • Murder is a species.  
  • There is strong intention to kill this person (victim). Generally there shall be a plan to kill.  
  • The wounding is a serious one through by stabbing with knife several times, it amounts to murder.  
  • More serious than culpable homicide. It is an aggravated form of culpable homicide.  
  • Every murder is primarily a culpable homicide. On fulfilling certain conditions, culpable homicide amounts to murder.  
  • According to Section 300, except in the cases hereinafter excepted, culpable homicide is murder.
  • Punishment is heavier than culpable homicide.  

The punishment for murder is death or imprisonment for life and shall also be liable to fine (Sec. 302).

 


WBPCS  Notes brings Prelims and Mains programs for WBPCS  Prelims and WBPCS  Mains Exam preparation. Various Programs initiated by WBPCS  Notes are as follows:- For any doubt, Just leave us a Chat or Fill us a querry––