Categories of General Defense
Name: Shailendra Kumar Gupta
Third semester
Nepal Law Campus

Introduction
• Criminal law outlines different punishments for
various crimes. But a person may not always be
punished for a crime that he/she has committed.
These defenses are based on the premise that
though the person committed the offence, he
cannot be held liable. This is because at the time
of commission of the offence, either the
prevailing circumstances were such that the act
of the person was justified or his condition was
such that he could not form the requisite mens
rea for the crime.

Categories of General Defense
• Defense are simply categorized as
a) Excusable
b) Justifiable
a) Excusable
Excuses admit that the deed may be wrong but excuse
the actor because conditions suggest that the actor is
not responsible for his deed. In case of excuse, though
the person has caused harm, it is held that the person
should be excused because he cannot be blamed for the
act.

b) Justiciable
A justified act is a one which otherwise, under normal
conditions would have been wrongful but the
circumstances under which the act was committed make
it tolerable and acceptable. The person fulfills all the
ingredients of the offence but his conduct is held to be
right under the circumstances.
Justifications and excuses may seem similar in that both
are General Defense which exculpate an actor because of
his blamelessness. In determining whether the conduct is
justified, the focus is on the act not the actor. In excuse
focuses is given on the actor who have caused or
committed the criminal offence. Due to not having the
capacity to commit a criminal offence he or she is excused
and excluded from the criminal responsibility.

Excusable Defense
1. Mistake
2. Infancy
3. Insanity
4. intoxication

Mistake
• Mistake simply applies the general principle of
criminal law that crime requires actus reus along
with mens rea. Mistake is an extenuating factor
that the person who is ignorant of the existence
of relevant facts or has mistaken them and does
some wrongful act, he neither has intended nor
foreseen the resulted unlawful consequences.
Mistake therefore lacks the existence of ‘intent’
or ‘foresight’, which penal law requires to make a
person liable.

a. Mistake of fact
A mistake of fact arises when a person does any
act but misunderstood some fact that negates an
element of the crime.
A mistake of fact as a defense applies to various
crimes. If the criminal defendant can prove that
he does the act due to a mistake of fact or
misunderstood some fact that negates an
element of the crime.

Mistake of Law:
The conventional wisdom is ignorantia lexis non exusat:
“ignorance of law is no excuse.” The rule that mistake of law
does not constitute a defense is based on several
considerations:
• Knowledge: People are expected to know the law.
• Evidence: Defendant’s may falsely claim that they were
unaware of the law. This claim would be difficult for the
prosecution to overcome.
• Public Policy: The enforcement of the law insures social
stability.
• Uniformity: Individuals should not be permitted to define for
themselves the legal rules that govern society.

• Section 8 of the Muluki Penal code, 2074 has
accepted the principle as
8. Act done by mistake of fact not to be offense:
“No act done, believing to be done or excused by
law, by mistake of fact in good faith, shall be deemed to
be an offense.” Provided that an act committed by
ignorance of law shall not be excused.
Case:-
Resham Bahadur Khatri v. Kesh Bahadur Budhathoki
(2067)
Mistake of Law is never excusable while Mistake of Fact
may be excusable. It becomes excusable when mistake
of fact is honest and reasonable.

Infancy
Children are excused because of following reasons:
• Children do not have capacity to separate the good things and bad
things.
• They cannot understand about the act and consequences.
• Their mind is not fully developed.
• If reasoning power is not matured, then we cannot blame morally.
• Criminals are part of the society and society compels the children to
commit the crime.
• So the children should be sent to the hospital rather than jail.

Children's Act, 2075
• Section 36 of Children Act has mentioned the following provision to
determine the criminal liability of the child when he/she commit
any offence.
1. If a child below 10 years commits an act, he shall not be liable to
any type of punishment.
2. Children age 10 years or above and below 14 years
Committing an offence which is punishable with fine, he/she be
admonished and convinced, if offence committed with imprisonment,
he/shall be punished with imprisonment for a term which may extend
to 6 months depending on the offence.
3. 14 years or above and below 16 years
He shall be punished with half of the penalty.
4. Commits offence under advise or influence of any person, the
person doing such act shall be liable for full punishment.

Muluki Penal Code, 2017 has talked about Infancy.
• Section 13 “Act done by a minor not to be
offense”: Not act done by a minor below ten
years of age shall be deemed to be an offense.
• Section 24 “Punishment for offense caused to be
committed by a minor”: If a person causes a
minor to commit an offense by seducing,
persuading or ordering him/her, such person shall
be punished as if the offense were committed by
himself/herself.
• Muluki penal Code, 2017 has provided the
criminal liability of juvenile in Section 45 .

Insanity
• Criminal punishment is designed for those who are rational and
responsible beings not to one who is insane. To impose any
criminal liability upon a person, one should be of mentally well
or with the capacity to discriminate between good and bad
things.
• A defendant who wishes to plead that he was insane at the
time of the offence must demonstrate that he was suffering
from a defect of reason caused by a disease of the mind which
meant that either:
(i) he did not know the nature or quality of his actions; or
(ii) he did not know that what he was doing was wrong.
(iii) If successful in his plea the defendant will be found
‘not guilty’, but insane’.

– Section 14 of Muluki penal Code 2o74, “Act done
by a person of unsound mind not to be offense”
states “No act done by a person who, at the time
of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature, characteristics,
fault or consequence of such act, shall be deemed
to be an offense.”

• Naresh Basnet vs HMG NKP 2062, Vol 12, DN 7633, p.
1506
• Case: Culpable Homicide
• Issue: Insanity
• The case was filed under Number 13 (1) of the Chapter on
Homicide. The defendant killed her wife by attacking 3-4
times on her head with lethal weapon like axe. The
defendant confessed his crime and he was convicted by all
three tiers of the court. But the defendant claimed that the
crime was committed due to his insanity. Therefore, he
should be exempted from punishment. But the court held
that insanity is an excusable defense, but the defendant did
not prove that he was insane. Just staggering and not
speaking anything during the time of giving his statements
in the court cannot suffice for insanity defense. Therefore,
Number 188 of the Court Procedure cannot be attracted in
this case because the crime was committed with having
mens rea.

Intoxication
• Intoxication is a state of mind in which a person’s normal
capacity to act or reason has been inhibited by alcohol or
drugs. Normally, an intoxicated person is unable to act as
an ordinary, reasonable, and prudent person in similar
situations. In consideration of this fact, the law can provide
for the use of intoxication as a defense against certain
crimes. The primary principle is that an intoxicated person
cannot have the mental state required to establish to
commit the offense.
• It is capable of altering mood, perceptions, or
consciousness, or loosing inhibitions and self-control of
impairing movements, reactions, judgment and ability to
foresee consequence and giving exaggerated sense of his
own capacity.

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In criminal law, intoxication may be divided into following two
categories:
a) Voluntary Intoxication
b) Involuntary intoxication
However, even in such cases the law is unwilling to allow
drunken persons to escape criminal liability and draws
a distinction between voluntary and involuntary
intoxication, the general rule being that drunkenness is
only a complete defense in the latter situation. With
voluntary intoxication, drunkenness usually no defense
at all, but in certain cases, it is allowed to operate as a
partial excuse reducing the level of criminal liability
and punishment.

Voluntary Intoxication
• Intoxication is voluntary when a person
knowingly taking alcohol or some drugs.
Voluntary intoxication for a long time has
been seen as intoxicating oneself even though
it is in the knowledge of the defendant that
they will not be able to make judgments and
their thinking capabilities will be impaired.
• In criminal law it is called self-induced
intoxication.

Involuntary Intoxication
Intoxication is involuntary where:
• It is not self-induced, as where the accused’s friend have slipped Vodka
into his ginger beer or
• Where he has been drugged by his enemies.
• Results from taking of drug administered or prescribed by a doctor ( in
the case of prescribed drugs) that the accused has taken them in
accordance with the doctor’s instruction.
• Intoxicated through strategy or fraud of others, or through ignorance,
or through any other means causing others,
• Or through ignorance or through any other means causing intoxication
without his knowledge or against his will.
• It is also termed as “non-voluntary intoxication.”

Basudev v. State (1956 AIR SC 488)
Brief Facts
The accused was a retired jamedar, attended a
marriage party, in which he drank liquor heavily.
He wanted to sit in a chair, in which boy already
sat. The accused asked him to stand so that he
would sit in it. The boy refused. The accused
became annoyed, and shot with his pistol. The
boy died on the spot. Thereafter, the accused
walked to the police station and surrendered
him. The accused pleaded that he was heavily
intoxicated.

Judgment
• The Trail court held that standing, arguing and
shooting at the time of incidence, and walking
to the police station himself without the help
of any body, and surrendering himself to the
police show that the accused did not loose his
state of mind. He was aware what he was
doing. The Trial court convicted him for the
offence of murder. The High Court and
Supreme Court also confirmed the conviction.

Thank you