This document discusses various general defenses under criminal law, including: 1. Unlawful act of child/infancy - Children under 10 are immune from criminal liability in Nepal. Between 10-18, they can claim reduced culpability. 2. Insanity - Several insanity tests have been used over time, including the wild beast test (unable to distinguish right from wrong), McNaughton rules, and Durham/product tests. Current Nepali law considers mental illness as a defense. 3. Intoxication - Voluntary intoxication usually does not excuse criminal liability but may reduce culpability. Involuntary intoxication can be a full defense in some cases. 4. Self-defense,

1. GENERAL DEFENSE
Adv. Vijay Jayshwal
Kathmandu University School of Law

2. 1. UNLAWFUL ACT OF CHILD /INFANCY
DOCTRINE
 A defense is a plea which is successfully raised will lead to acquittal
on criminal charge.
 The infancy law doctrine is one of the most venerable traditions in
the common law.
 It represents society’s determination that minors lack the mental capacity for a
meeting of the minds—a requirement for criminal activities.
 Under the English common law the defense of infancy was expressed as a set of
presumptions in a doctrine known as doli incapax. A child under the age of
seven was presumed incapable of committing a crime.
 Children who are below the age of 18 are regarded as infant.
 Section 16 of Human Trafficking and Transportation Control Act 2064, a child
under 18 is considered as minor.
 For the purpose of matrimonial, 20 years is considered age for marriage.
(Sec. 173 of MCCA 2074)
 Children below the age of 10 is immune from criminal liability. (Sec 13 of
MCCA 2074).
 Law must protects certain categories of people as known vulnerable to
society.

3. INSANITY
 The concept of defense by insanity has existed since ancient
Greece and Rome. The first known recognition of insanity as a
defense to criminal charges was recorded in a 1581 English
legal treatise stating that, “If a madman or a natural fool, or a
lunatic in the time of his lunacy” kills someone, they cannot be
held accountable.
 The British courts came up with the “wild beast” test in the
18th Century, in which defendants were not to be convicted if
they understood the crime no better than “an infant, a brute, or
a wild beast.”
 Criminal liability requires proof of three interrelated
components as follows:
 Commission of the prohibited conduct specified in the
offense (Actus Reus)
 Committed with a particular mental state (Mens Rea)
 Committed without a legal defense.

4. WILD BEAST TEST
 It was the first test to check insanity that was laid
down in the case of Arnold in 1724. Justice Tracy, a
13thcentury Judge in King Edward's court, first
formulated the foundation of an insanity defense
when he instructed the Jury that it must acquit by
reason of insanity if it found the defendant to be a
madman which he described as “a man that is
totally deprived of his understanding and memory,
and doth not know what he is doing, no more than
an infant, than a brute or a wild beast, such a one is
never the object of punishment.”

5. GOOD AND EVIL TEST
 This test was laid down in the case of R vs
Madfield. The test laid down in this case is ‘the
ability to distinguish between good and evil.” In this
case, the accused was charged for treason for
attempting to kill the king.
 The defense pleaded that he was not able to
distinguish between good and evil and “wild beast
test” was unreasonable. He was acquitted.

6. IRRESISTABLE IMPULSE TEST
 This test asks the evaluator to determine if the
defendant's mental disorder rendered him or her
unable to refrain from his or her behavior,
regardless of whether the defendant knew the
nature and quality of his or her act or could
distinguish right from wrong.

7. MCNAUGHTON'S RULES:
 Every man is to be presumed to be sane and to possess
a sufficient degree of reason to be responsible for
his crimes, until the contrary be proved.
 An insane person is punishable “if he knows” at the
time of crime.
 To establish a defense on insanity, the accused, by
defect of reason or disease of mind, is not in a position
to know the nature and consequences.
 The insane person must be considered in the same
situation as to responsibility as if the facts with respect
to which the delusion exists were real.
 It was the jury's role to decide whether the defendant
was insane.

8. DURHAM RULE (PRODUCT TEST) (DURHAM V. UNITED
STATES 1954)
 This insanity test derived from a D.C. Circuit case in
which Judge Bazelon allowed a finding of insanity if
the defendant's unlawful act was a “product of a
mental disease or defect.”
 As with the irresistible impulse test, the product test
expanded the category of those who were eligible
for a finding of insanity and rapidly fell out of favor.
 It is currently used in only two jurisdictions in the
United States: New Hampshire and the Virgin
Islands

9.  Sec. 6 of the Illaz garne ko has made provision that such
person should be kept on proper custody and the guardian or
parent can apply to the government for detention if they are
unable to keep control over such person.
 Tirtha Dangol v HMV (NKP 2042, p.435)- Diseases of
Schizophrenia- Mental Diseases under which person may
commit any type of act.
 HMG V Dev Giri (NKP 2042,p.110)- setting one’s own house
on fire, assaulting own wife and killing innocent 15 months old
boy cannot be hold as normal human behavior.
 HMG V Kuldhoj Lama (NKP 2046, p.610)- witnesses give
disposition that his activities were unsound since so many
days.
 Sec. 14 of MCCA 2074- At the time of act, if a person is not
conscious, unable to know about nature of offenses, mental
illness..will be immune from the criminal liability.

10. INTOXICATION
 The defendant did not understand the nature of his or her actions
or know what he or she was doing. The intoxication defense
applies in very limited circumstances and typically depends on
whether the intoxication was voluntary or involuntary and what
level of intent is required by the criminal charge.
 Involuntary intoxication can also be a defense to a general intent
crime if the defendant can establish that the involuntary
intoxication acted similarly to an insanity defense and prevented
the defendant from understanding the nature of his or her actions
or differentiating between right and wrong.
 The defense of voluntary intoxication does not completely
absolve the defendant of liability but instead reduces the overall
culpability for the crime.
 IPC, sec 85 & 86 has said that, if the person was victimized to
take drink or drug under the pressure of somebody else or he
was administered such substance without his knowledge, the
person can plead defense under it.

11.  Narcotic Drug Control Act 2033 has also prohibited
to take drug punishable under it.
 Man Bdr v HMG ( NKP 2045,p.162)- Madn Bdr
charged with murder of Thuli Tamangni by striking
with an axe when she was engaged in funeral
sacrament. He pleaded the act done under
intoxication and court reduced amount of
punishment under abam 188.

12. SELF DEFENSE
 This builds on the Roman Law principle
of dominium where any attack on the members of the
family or the property it owned was a personal attack on
the pater familias – the male head of the household,
sole owner of all property belonging to the household,
and endowed by law with dominion over all his
descendants through the male line no matter their age.
 The right to self-defense is phrased as the principle
of vim vi repellere licet ("it is permitted to repel force by
force") in the Digest of Justitian (6th century).

13.  In certain specific situation, every person has right to
pursue private defense in order to protect his life,
property.
 Defense of person- Sec. 24 (1) of MCCA 2074.
 Defense of property-Sec. 24 (2) of MCCA 2074.
 Defense in execution of official duty- Sec 179 of MCCA
2074.
 Defense of chastity and right to retaliation- Sec. 8 of the
Muluki Ain, chapter on rape..
 Self defense in defense of cow- Chapter on Choupaya,
Sec 4
 Private defense against trafficker of human being- Sec 16
of Human Trafficking and Transportation Control Act
2064.

14. PRINCIPLES OF SELF DEFENSE
 Reciprocity in force- Sec 25 (3) of the MCCA 2074.
 Threat of force
 Third party intervention
 Police exercising self defense
 Private defense against legally immune person
 Kousila Pun Magar V HMG (NKP 2042,p.13)
 HMG V Rup Narayan et al (NKP 2942, p.190)
 HMG V Shiv mahato (NKP 2046,p.1039)
 HUMg V Ichhalal Mushar et al ( NKP 2047,p.282)

15. NECESSITY
 In the U.S. criminal law, necessity is a form of defense.
Usually, defendants argue that their actions were
necessary to prevent a greater evil. Necessisty test..
1) The harm the defendant wanted to avoid outweighs
the danger of the prohibited conduct the person is
charged with.
2) The defendant had no other reasonable alternative.
3) The defendant had stopped the prohibited action when
the other danger passed.
4) The defendant had not created the other danger that
the defendant wanted to avoid by doing the prohibited
action.

16.  It is defense in a very limited situation where the
person has to act instantly within limited alternative
means.
 It is based on Latin maxim, necisstas non habet
legume- necessity knows no law.
 According to sec.2 of Illaz Garne ko Mahal, Muluki
Ain 2010, doctor can give treatment in good faith to
any person who is unconscious without his/her
consent is his/her life is at risk.
 Sec 23 of MCCA 2074.
 Marda Bdr Rai et al v HMG ( NKP 2043,p.651)-
Land lord and distribution of grain for survival case)

17. DURESS AND COERCION
 Duress is a defense in very limited course of action. A
principal in first degree cannot plead duress ad defense
in murder charge. A hands over a dragon in the hand of
D and pressurizes him to kill V with a threat that he will
kill D himself otherwise. If D kills V, he cannot plead
duress in defense arguing that in order to save his own
life, he was bound to kill the victim.
 Duress can be a defense in favor of persons who are
acting as abettors under pressure in all types of crime.
 HMG V Laxmi Mallaha (NKP 2033,p.19)
 HMg v Krishnlal Yadav ( NKP 2044 p.671)
 Sec 22 of MCCA 2074

18. CONSENT
 Consent is a defense in a certain specific situations
only. In an ac which likely causes death or grievous
hurt or harm gives criminal liability even though if it
committed with mutual consent. Suicide pact is
illegal.
 Doctor ca n give treatment to patient who is unable
to give consent.
 HMG V Abdul Fatte Musalamn (NKP 2044,p.840)-
Love marriage.

19. MISTAKE
 Mistake of law and mistake of fact is studied under
the criminal law.
 Mistake of law is not excused in the criminal
charges while mistake of fact is a defense in
criminal charge.
 Sec 8 of MCCA 2074.
 NG v Kesh Bdr Budhathoki ( NKP 2067,p.1337)

20. SUPERIOR ORDER
 It is not defense in any criminal trial. The person doing
the act must bear criminal liability for his/her act. The
order giver may be held a abettor or inciter to the act.
 Order given is fully liable where the person acting under
him/her is an innocent agent or minor.
 If the case related to military, the commanding officer
can be held legally responsible for the consequence of
the act committed under his/her order, the actual
perpetrator gets nominal punishment.
 HMG v Dharanidhar Bhandari et al (NKP 2041,p.150)

21.  Thank you