1. Unit 7. General Defenses
7.1 Concept & Meaning:
• Certain acts committed without intention (mens rea) even if
injure others, are not treated as criminal offences.
• All the acts done under the circumstances that does not amount
to offences as declared by criminal law are the matters of defense.
• These are exceptions to criminal liability. The person’s acts are
exempted from the category of offences and he is not liable for
punishment.
• Acts committed under following situations give “defense” from
criminal liability as a general rule, provided that existence of such
situation is proved:
i. Excusable General Defenses
ii.Justifiable General Defenses
2. 7.2 Rationale & Justifications behind
General Defenses:
• Protecting competing interests
• Avoidance of greater evil.
• Necessity
• Absence of mens rea.
• Sincere, genuine and legitimate cases of not
knowing the law or ignorance.
3. 7.3 Classification of General Defenses
(a) Excusable General Defenses
(1) Infancy:
• Below 10 years: can’t form mens rea. Completely immune.
• 10-14 yrs: scolding (if fine); up to 6 months confinement in child
reform home if to be imprisoned.
• 14-16 years: Half punishment than that imposed to adult
criminals.
(See Section 11 of Children Act, 2048)
(2) Accident:
• Any act done with advertence/care and caution does not give
criminal liability.
• This is a defense of accident.
• Inadvertence act comes under negligence. (See Section 80 of IPC)
• But in Nepalese law, accident is punishable which is inconsistent
with the principles of general defenses, mens rea and strict
liability.
4. Excusable General Defenses…
(3) Insanity:
• It is the disease of mind.
• Completely immune from criminal liability.
(See No. 1 of the Chapter on Punishment in Muluki Ain, 2020 B.S.)
(4) Intoxication (Drunkenness and Drug taking):
• If a person is made to drink in pressure and commits crime, he is not
liable .
• If he drinks or takes drugs by self inducing, he is liable.
(5) Mistake:
(a) Mistake of Law:
• Is not a defense.
• But if found to negate mens rea, provided that it is not in case of strict
liability.
(b) Mistake of Fact:
• Is always defense.
• If a person (V) dies while targeting a dog with a pistol, it is defense.
5. (b) Justifiable General Defenses
(1) Private Defense:
(a) Self Defense
• Defense of person’s body and life.
• If excess force is applied than it may amount to provocation.
(b) Defense of Chastity
• Can kill within 1 hour of rape.
• Only defense to women.
See No. 8 of Chapter in Rape
(c) Defense of property
• Until it is in the control of another.
(d) Defense in execution of ones own duty.
• E.g. injury to escaping dacoit while the police attempted to
catch/arrest him.
See Section 37 of Nepal Police Act, 1995 (2012 B.S.)
(e) Defense in Course of Cow Killing
• One can kill a person in order to protect the cow.
• See No. 4 of the Chapter on four footed animals.
6. Justifiable General Defenses…
(2) Superior Order
• Superior order can be defense only in case of vicarious liability.
(3) Necessity
• It is said necessity knows no law.
• The Queen v. Dudley & Stephens, 1884: 3 men and a 14 years old
child were cast at an open boat for 18 days. 3 men killed the boy and
ate his flesh. After 4 days they were rescued and prosecuted. They
argued seeking defense of doctrine of necessity. Held- Necessity is a
defense but it can not be defense in case of murder.
(4) Duress (karkap) and Coercion
• Duress between husband and wife might be defense to certain limit.
• It is a defense in all cases except in case of murder.
