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Categories of General Defence.pptx

  1. Categories of General Defense Name: Shailendra Kumar Gupta Third semester Nepal Law Campus
  2. 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.
  3. 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.
  4. 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.
  5. Excusable Defense 1. Mistake 2. Infancy 3. Insanity 4. intoxication
  6. 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.
  7. 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.
  8. 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.
  9. • 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.
  10. 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.
  11. 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.
  12. 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 .
  13. 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’.
  14. – 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.”
  15. • 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.
  16. 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.
  17. 11/27/2022 18 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.
  18. 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.
  19. 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.”
  20. 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.
  21. 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.
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