Accident as general defense | Sec: 80 IPC | UPSC Law Optional Notes with previous year UPSC question
IMPORTANCE OF THIS TOPIC : Section 80 is a small topic under general defenses of IPC - 2 direct questions were asked till now in UPSC Law Optional Mains from this topic( discussed below ) - Just 10 mins read can help you cover this topic of accident. Do not leave any topic under UPSC law Optional syllabus - make sure that at least you have some idea on all topics.
ACCIDENT AS GENERAL DEFENSE (SEC. 80)
SECTION 80 | Bare Text
Accident in doing a lawful act.—Nothing is an offence 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.
Illustration : A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence.
S. 80 in other words: Nothing is an offence if it is committed:
· By accident
· Without criminal intention or knowledge
· While doing a lawful act
· In a lawful manner
· By lawful means
· Where due care and caution is exercised.
UPSC 2016 QUESTION| Paper II | QUESTION 1C | 15 MARKS
A man is not criminally responsible for unintended and unknown consequences of his lawful acts performed in a lawful manner, by lawful means with proper care and caution – Elucidate
Answer line : This is a statement based question thus try to start the answer by explaining the statement – identify it as principle under S. 80- Explain S. 80 – Give ingredients – rationale behind S. 80 – example / case law
What is an accident ? Accident means an unintentional act or an unexpected act. It is something that happens out of the ordinary course of things.
How and when section 80 is applied ?
· To invoke the help of Section 80, there should be the absence of both criminal intention as well as criminal knowledge. No act is per se criminal unless the actor did it with criminal intent.
· As the object of criminal law is to punish only serious infractions of the rules of society, it cannot punish a man for his mistakes or misfortune.
· If people in following their common occupations, use due caution to prevent danger, and nevertheless happens unfortunately to kill anyone, such killing is homicide by misadventure.
· Accident is not of itself a defence to a civil suit, unless it was only an accident but also a misfortune. The word “accident” in the section does not mean mere chance. It rather means an unintentional, an unexpected act.
THUS ! ACCIDENT = UNINTENTIONAL + UNEXPECTED ACT
LX EXPLAINS: - A works with a hatchet; the head flys off and kills a person standing nearby. Here, if there was no want of proper caution on the part of A, his act is excusable and is not an offence. ( Illustration 1)
IT IS NECESSARY TO PROVE THAT THE ACT WAS DONE
1. without any criminal intention, with no mens rea. An act that was intended by or known to the doer cannot be an accident # Tunda v. Rex (wrestling match)
2. The act must be a lawful act, in a lawful manner by lawful means.
3. Proper care and caution must be exercised # State of Orissa v. Khora Ghasi
ACCIDENT.- The accused and the deceased were wrestlers. They arranged a bout in the course of which the deceased fell and broke his skull. Under the circumstances, the Court held that this was a case of pure accident # Tunda, (1950) 51. Cr. L.J. 402.
NO ACCIDENT. - (i) A takes up a gun, and without examining whether it is loaded or not, points it in sport at B, and pulls the trigger. B dies. Such a death is not accidental.
REASONING : As there was want of proper care and caution. If A has reason to believe that the gun was not loaded, the death would have been accidental.
Note : It may be noted that shooting with an unlicensed gun will not debar an accused from claiming the benefit of Section # Rangaswamy, (1952) Nag. 93
(ii) A shoots at a bird 'in B's house in order to steal it, and kills B. A is liable, as his act was not lawful. To steal is not a lawful act.
OTHER ILLUSTRATIONS :
· A and B go a hunting. They take up certain positions and lie in wait for the game. A hears a rustle and thinking that an animal is moving about fires in the direction of the rustle. The shot reaches B and causes B’s death. B’s death is the result of an accident or misfortune.
· A and B are fighting. C intervenes to separate them and in doing so C is stabbed by a spear in the hand of A. A’s act in stabbing C is illegal. It is not a lawful act.
INGREDIENTS OF SECTION 80:-
From section 80, it can be seen that there are four essential conditions when a person can take the defence of an accident -
Ingredient 1 : The act is done by accident or misfortune :
Accident explained ! - Stephen in his digest of criminal law explains that an effect is said to be accidental if the act that caused it was not done with an intention to cause it and if the occurrence of this effect due to that act is not so probable that a person of average prudence could take precautions against it. The effect comes as a surprise to the doer of average prudence. Since he does not expect it to happen, he is unable to take any precaution against it.
Lx EXPLAINS:- A firecraker worker working with Gun powder knows that it can cause explosion and must take precaution against it. If it causes an explosion and kills a third person, he cannot claim defence of this section because the outcome was expected even though not intended.
However, if a car explodes killing a person, it is an accident because a person on average prudence does not expect a car to explode and so he cannot be expected to take precautions against it.
Ingredient 2 : There must not be a criminal intent or knowledge in the doer of the act -
To claim defence under this section, the act causing the accident must not be done with a bad intention or bad motive.
LX EXPLAINS:- A prepares a dish for B and puts poison in it so as to kill B. However, C comes and eats the dish and dies. The death of C was indeed an accident because it was not expected by A, but the act that caused the accident was done with a criminal intention.
Thus ! A cannot claim protection under S. 80
CASE LAW : Tunda vs Rex AIR 1950, two friends, who were fond of wrestling, were wrestling and one got thrown away on a stone and died. This was held to be an accident and since it was not done without any criminal intention, the defendant was acquitted.
Ingredient 3 : The act must be lawful, and done in a lawful manner, and by lawful means
An accident that happens while doing an unlawful act is no defence. Not only that, but the act must also be done in a lawful manner and by lawful means.
Example : Requesting rent payment from a renter is a lawful act but threatening him with a gun to pay rent is not lawful manner and if there is an accident due to the gun and if the renter gets hurt or killed, defence under this section cannot be claimed.
CASE LAW : Jogeshshwar vs Emperor, where the accused was fighting with a man and the man's pregnant wife intervened. The accused aimed at the woman but accidently hit the baby who was killed.
He was not allowed protection under this section because he did an unlawful act.
Ingredient 4: Proper precautions must be taken while doing the act
The act that causes the harm must have been done with proper care and precautions. An accident caused due to negligence is not excusable. A person must take precautions for any effects that any person with average intelligence would anticipate.
LX EXPLAINS:-A owner of a borewell must fence the hole to prevent children falling into it because any person with average prudence can anticipate that a child could fall into an open borewell
CASE LAW : Bhupendra Singh Chudasama vs State of Gujarat 1998
The appellant, an armed constable of SRPF shot at his immediate supervisor while the latter was inspecting the dam site in dusk hours. The appellant took the plea that it was dark at that time and he saw someone moving near the dam with fire. He thought that there was a miscreant. He shouted to stop the person but upon getting no response he fired the shot. However, it was proven that the shot was fired from a close range and it was held that he did not take enough precaution before firing the shot and was convicted.
CASES TO UNDERSTAND FOR SECTION. 80
CASE LAW : State vs Appoh (1970) 2 All NLR 218
FACTS : Two boys were pushing themselves near the river. While doing this, they were warned by another boy that the two boys were playing a dangerous game. As they continued, one of the boys pushed the other into the river and he drowned.
HELD : The court held that the defence of accident would not apply since it is reasonably foreseeable that pushing near a river could lead to drowning.
CASE LAW : Ukot vs State (1992) 5 NWLR pt 240, the accused swung a pen knife in a crowd in order to escape. While swinging the knife, it hit someone and killed him. The accused pleaded accident but the court did not grant his plea because it was reasonably foreseeable that by swinging a pen knife in a crowd, the knife could hit anyone.
ACCIDENT IN A ACT DONE WITH CONSENT
Section 87 extends the scope of accident to cases where an act was done with the consent of the victim.
BARE TEXT | Section 87 - Nothing which is not intended to cause death or grevious hurt and which is not known to the doer to be likely to cause death or grevious hurt is an offence by reason of any harm that it may cause or be intended by the doer to cause to any person above eighteen years of age, who has given consent whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Illustration - A and Z agree to fence with each other for amusement. This agreement implies the consent by each to suffer any harm which in the course of such fencing may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.
UPSC LAW OPTIONAL QUESTION | YEAR 1998 | Question 1C | 20 MARKS
On what grounds can a person committing any harm on a consenting individual be not punished ? Is there any limit to the harm or can it be a harm to any extent?
Answer line : Section 87 must be stated + Explain sec. 87+ Ingredients S. 87 + example/ case + limit- death or grievous hurt cannot be caused explain + case / illustration.
A person is saved under section 87 if
· He has not caused or known to cause death or grievous hurt.
· But cause some harm upon consent of such harmed person – consent may be implied or express
· The person consenting must be above 18 yrs
RATIONALE BEHIND THIS PROVISION : This is based on the premise that every body is the best judge for himself. Ordinarily games, such as fencing, boxing, football and the like are protected under this section.
If a person knowingly undertakes a task that is likely to cause certain damage, then he cannot hold anybody responsible for suffering that damage. Modified form of volunti non fit injuria.
DAY TO DAY EXAMPLE : Thus, a person watching another litting up firecrackers agrees to take the risk of getting burned and must not hold anybody responsible if he gets burned.
CASE LAW : Nageshwar vs Emperor, a person asked the accused to try dao on his hand believing that his hand was dao proof due to a charm. He got hurt and bled to death. However, the accused was acquitted because he was protected under this section. The deceased consented to the risk of trying dao on his hand.