Department of Law

Jagannath University, Dhaka

ANALYTICAL ASSESSMENT ON PENAL CODE
COURSE CODE-LAW3202

Submitted to,
Professor. Dr. Sarkar Ali Akkas
Chairman, Department of Law,
Jagannath University, Dhaka.
Submitted by,
Jamal Naser Mustakim
ID No: B170501072
3rd year, 2nd semester,
Department of Law,
Jagannath University, Dhaka.
 Every Person by born is entitled to avail his/her constitutional rights in all sphere of his/her
life, in the same way he/she is entitled to avail a Right of Fair Trial as a fundamental element of
his/her rights; When he/she is being alleged or victimized of any pre mediated occurrence by
someone. So, nobody is an offender until he/she is proved guilty. ICCPR also provides that
"Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to the law." That is why every person should be presumed innocent. Due to
the term "presumption of innocence", a person cannot be compelled to confess guilt or give
evidence against him. It is for the state / prosecution to produce evidence of guilt, not for the
accused to prove of innocence or a suspect's or accused's silence should not be used as evidence of
guilt. Because of the serious impact of conviction in a criminal trial, the state/prosecution must
prove guilt or mens rea of the wrong-doer beyond reasonable doubt. If doubt remains, the accused
must be given the benefit of the doubt and it will be cleared that the state's/prosecution's " burden of
proof has not been met properly, which is also a material fact in accordance with the Evidence Act,
1872, because Section 101 of the Evidence Act asserts that whoever desires that any court to give
judgment as to any legal right or liability he/she must prove the existence of the asserted facts
before the learned concerned Court of law. And when the State/prosecution proved the material
facts in proper standards or beyond the reasonable doubt but there is also the General Exceptions in
the penal code, also recognized in the Section 105 of the Evidence Act, for which Accused person
may be acquitted. An accused may be acquitted Under the General Exception of the Penal Code,
1860 under sections asserted for Right of Private Defence as part of Affirmative Defence. And also an
Accused may be acquitted in the grounds of the Excusable and Justifiable Defence and causes of Non
imputability for the Ends of the Justice.
The Rights of Private Defences are also treated as Justifiable Defences. Justifiable Defence means
the defences based on the Justification focusing the offence. A Justifiable defence claims that the
accused's conducts legal rather than other criminal conducts. The Justifiable Defence are such as
Self-defence, Necessity, Protecting others from harm, and defending personal Property. In the
language of Penal Code that are called the Private Defence which are treated as the Right of a
Person. They are as follows:
1. Section 96 of the Penal Code, 1860 asserts that Acts done in exercising the right of private
defence in not come under any offence.
2. Section 97 of the Penal Code, 1860 asserts that Every person has right to private defence
except restriction contained in section 99 of the Penal code:-
Firstly, Offence against his own body or offence against any other persons or offence
affecting any human body.
Secondly, Against any offence relating to the property of himself whether moveable or
immovable and Against any offence relating to any other person's property whether movable or
immovable falling under the offence robbery, theft, mischief, criminal trespass or which is under
the offence attempt to commit theft, attempt to commit criminal trespass, attempt to robbery,
attempt to mischief etc.
contd. page no:2
 Page no: 2
3. Section 100 of the Penal Code, 1860 asserts that the right of private defence of body
extend, under the restriction mentioned in the section 99 of the Penal Code, for the voluntary harm
causing death of the assailant is not an offence for avoiding the following consequence namely:-
Firstly- such assault reasonably cause apprehension that death will be consequence
Secondly-such assault reasonably cause apprehension that grievous hurt will be consequence
Thirdly- such assault reasonably cause apprehension that intention of committing rape
Fourthly- an assault intention of gratifying unnatural lust
Fifthly- An assault with the intention of kidnapping or abducting
Sixthly- An assault with the intention of wrongfully confining a person
4.Section 103 of the Penal Code, 1860 asserts that the right of private defence of body
extend, under the restriction mentioned in the section 99 of the Penal Code, for the voluntary harm
causing death of the assailant is not an offence for avoiding the following consequence namely:-
Firstly- Robbery;
Secondly- House-breaking by Night;
Thirdly- Mischief by fire committed on any building, tent or vessel used for living or for the
custody of any property;
Fourthly- Theft, Mischief or House Trespass may reasonably apprehend that death of
grievous hurt will be the consequence of the offence, if such right of private defence not
exercised;
There is also excusable defences which are also regarded as affirmative defence for the
acquittal of the accused though the State/Prosecution prove the guilt of the accused beyond
reasonable doubt. Excusable Defences are those which are the acts excused from criminal liability.
Excuse is provided in certain cases where the accused was not possessing any inferable guilty mind
at the time of commission of the act where the offence required the existence of mental element to
complete the commission of crime. Therefore, the accused is excused from being punished for the
act.
The Excusable defences are classified as follows:-

 Mistake of fact- (Sections 76 and 79)

 Accident- (Section 80)
 Infancy- (Sections 82 and 83)
 Insanity-(Section 84)
 Intoxication- (Section 85)
Mistake of Fact :- According to the Penal Code, 1860, Section 76 asserts that, for a defence where
the accused has committed an act but he/she believes in good faith as a reason of fact that he/she is
legally bound to commit such an act. In the case of Section 79, the defence is available where the
accused believes in good faith as a reason of mistake of fact that his act is legally justified . [state of
west bengal v. shew mangla singh {1981 Cr LJ 1683 (SC)}]
contd. page no:3
 Page no: 3
Accident :- Accident in doing a lawful act is excused under section 80 according to the penal
code, 1860. This act is excused in the absence of criminal intention to commit it. Where the
accused has caused injury to other persons without possessing any criminal intention , the
court will consider such commission as an accident, if neither wilfully nor negligently the
accused has caused such injury. [ Raja Ram, 1977 Cr LJ NOC 85(All)]
Infancy- Section 82 of the Penal Code, 1860 asserts that, in case of any offence committed by
a child under nine years of age as it is considered the child under nine years of age in mentally
incapacitated to be held criminally liable. Further, section 83 provides for excuse from
criminal liability if the offence is committed by a child above nine years of age and under
twelve years, but has not attained sufficient maturity to understand the consequences of the act
committed.
Insanity- Section 84 of the Penal Code, 1860 asserts that, where the accused was not of sound
mind at the time of commission of crime. The provision under section 84 provides defence for
a person who is mentally incapacitated to be held for criminal liability as the person is
incapable of knowing the nature and consequence of the act. The kinds of unsoundness of
mind considered under section 84 are-
1. An Idiot who is not sane from his birth
2. A person who is not of sound mind due to illness
3. A lunatic who is having unsoundness of mind at certain periods.
Intoxication- Section 85 of the Penal Code, 1860 asserts that, If the accused is incapable of
knowing the nature and consequence of the act at the time of commission and the reason for such
incapacity is intoxication, then he/she is excused from criminal liability.
Other than the Justifiable and Excusable Defences an accused may be acquitted in the grounds of
Non-imputability. In criminal law, non-imputability means mental state in which a person cannot
be held criminally liable. The person was not aware of the consequences of his actions or was
unable to control his actions during non-imputability. It is a temporary mental illness for which an
accused may not be treated as guilty and he/she will not be liable for punishment.
So, in conclusion we can say that, it is duty-bound for the prosecution to prove the guilt of
the accused in proper standard and beyond reasonable doubt, but aforementioned defences are the
affirmative grounds for the acquittal of the accused from the complaint.