PROJECT ON

ON

CONCEPT OF DURIS UNDER INDIAN PENAL CODE

 

Submitted to

Mrs. Golda Sahoo

(Associate Professor in Law of Crimes)
Submitted by
P.Prashanna Guruparan
II BA0150032

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 ACKNOWNLEDGMENT

At the outset, I take this opportunity to thank my Professor Ms.Golda Sahoo

from the bottom of my heart who has been of immense help during moments of
anxiety and torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Arun Roy

and the administrative staff of TNNLS who held the project in high esteem by
providing reliable information in the form of library infrastructure and database
connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their

precious time is unforgettable and highly solicited. Their valuable advice and
timely supervision paved the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to
confront all hurdles during the making of this project. Words aren’t sufficient to
acknowledge the tremendous contributions of various people involved in this
project, as I know ‘Words are Poor Comforters’. I once again wholeheartedly and
earnestly thank all the people who were involved directly or indirectly during this
project making which helped me to come out with flying colours.

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 DECLARATION

I, P.PRASHANNA GURUPARAN do hereby declare that the project

which is a case review on “CONCEPT OF DURIS UNDER INDIAN PENAL

CODE ” submitted to Tamil Nadu National law school in partial fulfillment of

requirement of award of degree in undergraduate in law is a record of original

work done by me under the supervision and guidance of Professor Ms. Golda

Sahoo, department of Law of Crimes, Tamil Nadu National law school and has not

formed basis for award of any degree or diploma or fellowship or any other title to

any other candidate of any university

P.Prashanna Guruparan

B.A., LL.B (Hons)

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 CONCEPT OF DURIS UNDER IPC

TABLE OF CONTENTS

TABLE OF CASES                                                                                           

PRIMA FACIE: AN INTRODUCTION                                                                  

RESEARCH METHODOLOGY                                                                             

GENERAL FEATURES OF THE DEFENCES                                                             

THE DEFENCES OF NECESSITY AND DURESS UNDER THE INDIAN PENAL CODE   

THE DEFENCES OF DURESS: COMMON LAW AND INDIAN CRIMINAL

JURISPRUDENCE PERSPECTIVES

DURESS OF CIRCUMSTANCES: A COMPROMISE BETWEEN THE DEFENCES OF

DURESS AND NECESSITY                                                                                

CONCLUSION                                                                                             

BIBLIOGRAPHY                                                                                              

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INDIAN PENAL CODE:

The Indian Penal Code (IPC) is the main criminal code of India. It is a comprehensive

code intended to cover all substantive aspects of criminal law. The code was drafted in 1860 on

the recommendations of first law commission of India established in 1834 under the Charter Act

of 1833 under the Chairmanship of Thomas Babington Macaulay. It came into force in British

India during the early British Raj period in 1862. However, it did not apply automatically in the

Princely states, which had their own courts and legal systems until the 1940s

PRIMA FACIE: AN INTRODUCTION

The world is full of situations which are such that the interests of one party can be

advanced only at the expense of the interests of another. These are called competitive interests.1

The British, Indian and American legal systems use conditional liability to accommodate for

such things as competitive interests. If someone commits a wrongful act in order to avoid an

imminent, otherwise unavoidable danger to life, limb or liberty, either to himself or to a

dependent or someone closely connected with him, the person who acts commits the act without

culpability or the criminal frame of mind.

In such a circumstance it would unfair on the part of law to expect that man to suffer the

risk and it would also be unfair of the law to treat him at par with the criminal who harms

someone with the evil intention and under no abovementioned mitigating circumstances2.

Duress is treated as an excuse based on coercion and constraint imposed by human

agents. The fact that the defendant broke the law in mitigating circumstances may be a ground

for reducing or cancelling punishment, but it is not necessarily a defence that prevents conviction
1
Feinberg, Joel, Harm to Others, Vol 1, Oxford Univ Press: New York, 1984
2
Sistare, C.T., Responsibility and Criminal Liability, Kluwer Academy: Dordrecht, 1989

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but there are certain situations such as necessity and duress among others when the defendant is

entitled to be acquitted and not merely treated leniently.

OBJECTIVES:

 The object of this research paper is to analyze the validity and consequently extent and

scope of the defences of duress in Common Law and under the Indian Penal Code.

 The scope was fairly wide because particularly in the case of the defence of duress there

is sufficient literature through case law and authoritative texts.

REQUIREMENTS

The defences are restricted to cases where the threat or danger is of the death or of the serious

injury of the person himself or his near and dear ones3. Threats to property or to reputation have

been held to be insufficient by the courts4. In Stean’s case5 it was held that the threat of false

imprisonment suffices as a valid danger.

It is felt that it is strange to fix a degree of danger since the seriousness of the threat may vary

according to several other considerations. A dire threat should be necessary to excuse a person

who caused a grave harm, but it does not follow that some lesser threat should not be sufficient

to excuse a lesser offence.

It is held that the test to determine the danger is the “sober person of reasonable firmness” test

imported from the doctrine of provocation.  This is an objective test.

The full test is that of a “sober person of reasonable firmness sharing the characteristics of the

defendant” that allows the court to take account of the age, sex, and physical health while
3
DPP for Northern Ireland v. Lynch, [1975] AC 653
4
Valderamma-Vega, [1985] Crim LR 220
5
[1947] KB 997.

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excluding factors that have a direct bearing on the ability to resist threats. It must be noted that

age, sex and physical health are objective factors. It must also be noted that physical health is

taken into account and not mental health. This raises the question whether a defence based on

concessions to human weakness does not operate harshly against relatively timorous people

caught up in desperate situations, and whether it should not be possible to modify the standard to

deal fairly with defendants incapable of attaining it6.

Another objective element is that the defendant is not entitled to be judged on the facts as he

believed them to be. The Court of Appeal in Graham held that the test for duress is whether, as a

result of what the defendant reasonably believed that the duresser had said or done, he had good

cause to fear death or serious injury. The court used the expression “but for the circumstances he

would not have acted in that manner”

The threat must be present and not a remote threat or future harm. This is the significance of

Hudson and Taylor [12] in which the Court of Appeal held that it is not necessary that the threat

would be carried out immediately so long as its implementation was imminent.

Doctrine of Prior Fault

Duress subject to the doctrine of prior fault. In Sharp the defendant joined a gang of

robbers, participating in crimes where guns were carried but when he tried to withdraw he was

himself threatened with violence. The Court of Appeals held that the defence of duress is

unavailable to anyone who voluntarily joins a gang “which he knows might bring pressure on

him to commit  an offence and was an active member under such pressure.” Although the words

6
. Alldridge, “Developing the defence of duress”, [1986] Crim LR 433;  K.J.M. Smith,”Must Heroes Behave
Periodically?”, [1989]

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“which he knows” are used this is an objective principle because out here he is expected to be a

reasonable person.

The Emphasis on Factors of Immediacy and Unavoidability

People frequently act in a certain way because they feel under intense pressure, but that

does not mean we treat them as not responsible for those actions. A confluence of economic and

social pressures may occasionally lead a person to believe that there is no choice but to act in a

certain way. The courts have always opposed this line of argument7 but there is no easy

distinction (in terms of pressure experienced) between direct threat, dangerous emergencies and

other forms of moral involuntariness. This argument might fit with the “person of reasonable

firmness” test on the argument that it is unfair to expect the defendant to resist pressure which a

reasonably steadfast citizen would not have resisted. Thus factors such as immediacy and

unavoidability are placed emphasis on to determine the validity of the defence.

The Defences of Necessity and Duress under the Indian Penal Code

The Indian Penal Code has two sections that specifically deal with the two defences of duress

and necessity. However there are differing schools of thought with regard to the manner in which

the penal code incorporates these defences. While some authorities consider that s.94 specifically

deals with duress and s.81 with necessity other authorities hold that the two sections are

supplemental and have to be read together to establish any one of the defences.

Section 81 states “Nothing is an offence merely by reason of its being done with the knowledge

that it is likely cause harm, without it being done without any criminal intention to cause harm,

and in good faith for the purpose of preventing or other harm to person or property.”

7
DPP v. Pittaway, [1994] Crim LR 600

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The ingredients are

1) No Criminal Intention

2) Good Faith (Good Faith is defined in s.52 which states “Nothing is said to be done or believed

on good faith which is done or believed without due  care and attention”)

3) To prevent other harm

The good faith ingredient introduces proportionality as a requirement for that defence. The harm

expected must be proportional to the harm caused.

Section 94 states “Except murder and offences against the state punishable by death, nothing is

an offence which is done by a person who is compelled to do it by threats, which, at the time of

doing it, reasonably cause apprehension that instant death to that person will otherwise be the

consequence, provided that the person doing the act did not of his own accord, or from a

reasonable apprehension of harm to himself short of instant death, place himself in the situation

by which he became subject to such constraint.”

The ingredients are

1) Compelled by threat/s of instant death

2) Did not place himself in the predicament

At first glance it appears that s.81 deals exclusively with the defence of necessity and s.94 deals

exclusively with the defence of duress however it should be noted that most circumstances of

duress would satisfy the requirements under s.81 because the latter section is framed more

broadly. Moreover s.94 only encompasses threats to the person himself, what if his near and dear

ones are threatened? In that case is a defence available under s.81? The common law

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understanding is that the necessity must be by reason of non-human events or factors and duress

by human threats and thus the common law answer would be no! However according to the

Indian Penal Code I see no reason to exclude the possibility of the use of s.81 when you’re near

and dear ones are threatened. Thus s.81 encompasses the defence of necessity and some

circumstances of duress when the threat is not to oneself but to near and dear ones and also when

the threat is not of instant death. However s.94 is narrow and only encompasses the elements of

duress.

We shall now look at the defences in detail.

The Defences of Duress: Common Law and Indian Criminal Jurisprudence Perspectives

Introduction

Actus ne invito factus est mens actus

The above maxim means “An act which is done by me against my will is not my act and

hence I am not responsible for it.” It sums up the reasoning of the defence which is that the

defendant was put under pressure to do the act and thus did not do it willfully so should not be

punished for it8.

Duress is a well-established defence - where the accused is threatened with serious violence or

instant death9 as in the case of the Indian Penal Code (s.94) unless she/he commits a crime, then

generally this amounts to a total defence to the crime committed and the defendant is entitled to

be acquitted10. It is a full defence - in Hudson and Taylor11 (1971), the accused were two girls

8
Gaur, K.D., A Textbook on the Indian Penal Code, Oxford and IBH: New Delhi, 1992, p.143.
9
Devji Govindji, (1895) 20 Bom 215
10
http://devgan.in/ipc/section/94/
11
(1971) 2 All E.R. 244

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who committed perjury, having been threatened to be ‘cut up’ if they did not do so. The

convictions were quashed on the grounds that the defence of duress was valid.

The defendant has the mens rea to commit the offence and is also treated as acting voluntarily.

Duress then is a true defence where the accused is raising issues over and above the elements of

the offence itself which excuse the offence. From the position of moral revenge, faced with the

choice of two evils, the accused is not to be blamed for choosing to break the law - she/he is less

morally blameworthy that a person who exercises free choice and then commits a crime. Equally

from the position of deterrence, if a person of reasonable strength of character would not have

resisted these threats, then it is difficult to see that punishing this defendant would deter anyone

else or encourage resistance. However it can be argued that this ‘concession to human frailty’

should not be regarded as a defence but as a factor in mitigation of sentence- after all

provocation operates in this way in relation to all crimes except murder.

Burden of Proof

In Common Law though the defendant does not have to prove duress, she/he must cite evidence

sufficient to raise the issue in order for it to be left to the jury. The burden of disproving it

beyond reasonable doubt rests on the prosecution. In Indian Criminal Law duress comes under

the chapter of general defences. Section 105 of the Indian Evidence Act, 1872 states “when a

person is accused of any offence, the burden of proving the existence of circumstances bringing

the case within any of the General Exceptions in the Indian Penal Code [45 of 1860], or within

any special exception or proviso contained in any other part of the same Code, or in any law

defining the offence, is upon him, and the Court shall presume the absence of such

circumstances.” Thus the burden of proof is upon the defendant to show that he was under

duress.

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The test in duress is a dual one and can in that sense is compared to provocation, as it

incorporates both subjective and objectives aspects. Was the accused’s will overborne by the

threat and would a person of reasonable firmness have responded in a similar way. In Graham12

(1982) the accused was a homosexual living with his wife and a man. He was taking drugs for

anxiety. The other man, a violent person, was jealous of the wife and at his suggestion, he and

Graham killed the wife. Graham had been threatened but the Court of Appeal held that it did not

matter that his fortitude was weakened by drugs since a sober person would not have given way.

Lord Lane said that there must be a well-founded (i.e. on reasonable grounds) fear to which a

sober and reasonable person, possessing similar but permanent characteristics of the accused and

of reasonable fortitude would have given way. This is supported by the House of Lords in Howe
13
(1987)

The test has thus been imported from provocation - note the differences in both cases from

mistake since the belief in the threat must be based on reasonable grounds and it takes no

account of the position of a weak-willed individual. A mistaken and unreasonable belief that you

are being under duress would be no defence whereas a mistaken and unreasonable belief that you

are under attack and need to defend yourself would be a defence. The English draft Criminal

Code would employ the same test for both.

THREATS OF WHAT?

In Common Law the threat must be of (at least) serious violence- the s.94 of the Indian

Penal Code clearly states that the threat must be of instant death. Thus a threat to expose an

12
[1982] 1 WLR 294
13
[1987] AC 417

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accused’s immorality or financial position is insufficient both under the Penal code and Common

Law. In Valderrama-Vega[32] (1985) the accused was importing cocaine from Colombia and he

was threatened not only with death unless he complied but also with exposure of his

homosexuality and financial irregularities. The trial judge directed the jury that they should be

concerned solely with the death threat and this was upheld though the Court of Appeal was

unhappy with ‘solely’. The threat need not be the sole cause but must be the ‘sine qua non’ of the

accused’s acts

In R v. Hudson and Taylor, Hudson and Taylor raised the defence of duress to the

charge of giving false evidence. They said that they had been threatened with death. The charge

was dismissed.

THREATS TO WHOM?

Under Common Law the threats can be against the accused or against the family or close

associates -in Ortiz14 it was assumed that a threat to a wife and child was sufficient – However

under s.94 of the Indian Penal Code the threat can only be against the defendants self however as

it had been argued if s.81 is allowed to accomodate cases of duress where the threat to the family

or loved ones then it would be more appropriate and more akin to the common law principle.

Joining a Gang - Self-Induced Duress

15
If the accused has joined some association (criminal, terrorist) where threats to commit

offences could reasonably be foreseen, then she/he cannot rely on the defence - Fitzpatrick

(1971) - and this has been accepted by English court as in Sharp16 (1987) and Shepherd (1987).

14
(1986) 83 Cr App R 173.
15
Sanlaydo, (1933) 35 Cr LJ 262
16
[1987] QB 853

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S.94 of the Indian Penal Code clearly disqualifies from using the defence anybody who has put

himself in such a situation of duress.

In Shepherd the accused was involved in shop burglaries - he sought to withdraw but was

threatened by his accomplice who in fact assaulted him at the court while the case was awaiting

trial. Though the defence was withdrawn from the jury at the trial, the Court of Appeal held that

if it was an enterprise where violence was not involved but unexpectedly materialized, then it

should have been left to the jury. It was a question of fact as to the accused’s knowledge of his

accomplice, the nature and timing of the threats and the persistence of the offences. Compare this

with Sharp where the accused was a member of a gang which used firearms to rob post-offices -

the defence of duress was correctly withdrawn from the jury since the accused had voluntarily

joined a criminal organization and was aware of its violent nature17.

OFFENCES TO WHICH THE DEFENDANT CAN CLAIM DEFENCE UNDER

DURESS.

Duress is a defence to all crimes except murder18 and possibly treason.

The accessory in murder

In Karu Mansukh Gond v. Emperor it was held that murder does not include abetment to murder

and thus such abetment could be excused under s.94. In Bachanlal19 the defendant caused the

disappearance of the evidence of murder under fear of instant death and he was excused. Under

common law in Lynch(1975) the defendant was ordered by members of the IRA to drive to a

garage where they shot and killed a policeman. The accused claimed that he knew the principal

17
Gemone, Marise and Herring, Jonathan, Criminal Law, 2nd Edn., Macmillan: London, 1998
18
Note: Duress and Murder”,  19  CLQ 161
19
1957 Cri LJ 344

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was a violent person who would shoot him if he did not obey. The House of Lords quashed the

conviction and ordered a re-trial. However in Howe, the House departed from this and ruled that

duress was not a defence to an accessory. The outcome of the decision can be seen with ‘proxy

bombings’ where a gun is put at someone’s head and they are ordered to drive a vehicle packed

with explosives to a particular destination. If someone is then killed, that person has no defence

to murder even though they are morally innocent. The House suggested that this could be dealt

with by executive remedies - a decision not to prosecute, no recommendation as to length of

sentence, parole or the prerogative of mercy - but this is little consolation.

Duress and Mens Rea

A defence would be required only if the prosecution has established the necessary ingredients of

the offence i.e. actus rues and the mens rea.  However this does not exclude the possibility that

evidence of compulsion could show that the accused lacked the necessary mens rea for the

offence. It is accepted in law that whether or not the accused puts forward duress as his

defence… evidence of subjection to the power of another in the form of personal violence, ill-

usage or threats of the same is always relevant to the issue whether or not the accused had the

specific intent required. It must be remembered that to have to do and to mean to do are two

different things and that in cases of duress a person has to do and does not mean to do. Thus

though there may be some degree of mens rea in an offence committed under duress there is not

the requisite mens rea to convict him.

 20
Where the accused helped in removal of the dead body of a person after the murder of

such person by the accused’s master, under the threat of the master to kill him if he

20
PSA Pillai, The Criminal law Lexis Nexis 12th edition 1956 pg no 135

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 refused to help him in the disposal of the dead body, the accused who would have

otherwise been guilty under s 201 was exempted from punishment21

OFFENCES TO WHICH THE DEFENDANT CAN’T CLAIM DEFENCE UNDER

DURESS.

The principal in murder

In Abbott 22(1977) the accused was ordered by Malik, head of a Trinidad commune, to kill a

woman. He did so because he feared that if he disobeyed Malik and he would be killed. The

Privy Council ruled that there was no defence - Lord Salmon’s judgment was based on the policy

grounds that such a defence would be a ‘charter for terrorists, gang leaders and kidnappers…’

There is however a strong dissent from Wilberforce and Edmund Davies who argue that there is

little foundation for the automatic exclusion of this defence, even for murder. Once the defence

is accepted, then there is no justification for distinguishing between categories of offence.

This position is supported in Howe - a person should die rather than take the life of an innocent.

Hailsham also uses the international terrorist card that  if a reasonable person would not have

resisted such threats, why does the conviction of the accused assist the fight against such

organisations?

21
Emperor v Antar Air 1925 All 315
22
[1977] AC 755

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Attempted murder

This was decided by the House of Lords in Gotts 23(1991) which used dicta by Griffiths

in Howe and concluded that duress was not a defence to attempted murder. The justification was

that murder was deliberate and intentional and so the fact of failure made no difference. The state

of mind for murder was the same as for attempted murder and the same policy reasons applied in

denying the defence. This still leaves open whether duress is a defence to conspiracy or

incitement to murder - Lord Lane in the Court of Appeal in Gotts suggested that it did apply

since these offences were further away from the full offence than attempt24.

Offences against the state punishable with death

25
As regards the second exception i.e. offence against the state punishable with death,

where compulsion is not an excuse from criminal liability, there is only one offence against the

state in the IPC, which is punishable with death. The offence of waging or attempting to wage a

war on abetting such war against the Government of India under s.121 IPC, is alone punishable

with death. The exception has presumably been introduced on the assumption that an individual

should place the sovereignty of his war against the state. The fact that a gun was pointed at him

and had he not waged a war, he would have been killed; is not an excuse.

The concept of Duress in other Laws:

It is submitted that the Indian Penal Code though accommodative of the defence of duress does

not deal with the offences appropriately. A reading of Section 94 makes it clear that the defence

23
[1992] 2 AC 412.
24
Gardner, Simon, “Duress in Attempted Murder”, 107 LQR 389
25
PSA Pillai, The Criminal law Lexis Nexis 12th edition 1956 pg no 135

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is only open in cases where the threat is to one’s own self and not to ones near and dear ones.

However this problem can be avoided if a wide interpretation is given to s.81 and the

abovementioned cases of threats to near and dear ones can be included under s.81. However it is

submitted that a change is due. S.94 should be exhaustive of the defence of duress and s.81

should be exhaustive of a defence of necessity and cases where it is a valid defence. These two

sections have not been worked by the lawyers and the courts so tremendous reliance has been

placed on common law sources even by the Indian Criminal Law academicians. In my opinion

the emphasis should be placed on appropriate “duress” legislation. In several common law

countries working guidelines have been proposed and implemented.

The English Draft Code of 1985 provides that a person has a defence of duress with respect to

an act if

(a) He does it because he believes

(i) That a threat has been made to kill or cause serious injury to himself or another if the act is

not done; and

(ii) That the threat will be carried out immediately if he does not do the act or, if not

immediately, before he can obtain official protection; and

(iii) That there is no other way of preventing the threat being carried out; and

(b) The threat is one which in all the circumstances (including any of his personal characteristics

that affect its gravity) he could not reasonably be expected to resist.

The American Model Penal Code provides;

Section 2.09. Duress

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(i) It is an affirmative defence that the actor engaged in the conduct charged to constitute an

offence because he was coerced to do so by the use of , or a threat to use, unlawful force against

his person or the person of another, that a person of reasonable firmness in his situation would

have been unable to resist.

(ii) The defence provided by this Section is unavailable if an actor recklessly places himself in a

situation in which it was probable that he would be subjected to duress. The defence is also

unavailable if he was negligent in placing himself in such a situation, whenever negligence

suffices to establish culpability for the offence charged.

The Law Commission of Canada has proposed the following,

Duress: No one is liable for committing a crime in reasonable response to threats of immediate

serious harm to himself or another person unless he himself purposely causes the death of, or

seriously harms, another person.

It is submitted that the tests for determining the immanency and danger of a threat should not be

purely objective and the court should not rule out looking into personal characteristics. The

offence should be broken up into two elements;

1) Perception of threat and

2) Response to threat

Perception of the threat is highly subjective in itself and unnecessary effort should not be made

to objectify it. Personal characteristics should be taken into account.

In the case of response to threat the objective test should be used. The question should be asked

“was his reaction to the threat he perceived justified?”

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With regard to the causing of death it is submitted that the defences of both necessity and duress

should be admitted as factors to mitigate sentences. Executive clemency and reduced

sentences in appropriate fact situations could do justice.

There is always debate on the subject that whether these defences should be available for

certain offences and whether they should be available at all. Indian Criminal jurisprudence has

not contributed much to understanding in the area of the general defences of necessity and

duress. The Indian Penal Code incorporates the provisions s.81 and s.94 to provide for such

circumstances. However the law in this regard is wholly borrowed from the common law

understanding. Common law has worked hard on defining and limiting the scope of these

defences and there is an excess of notable cases to this effect from which notable inputs to the

common law have been culled out.

The Recommendations of the British Law Commission on the Defences

The British Law Commission has recommended a shift that would dismantle several of the

objective tests. According to them the basis of the defence should be the defendants belief that

such a threat has been made (no reasonable requirement) , the defendants belief that the threat

would be carried out before he could obtain “effective protection” (no requirement to avail

himself of a reasonable opportunity), and proof that the threat was one  “which in all

circumstances”  (including any personal characteristics) he cannot reasonably be  expected to

resist. The counterweight to balance these benefits for the defendant is the placing of the burden

of proof on the defence.

As mentioned in the introduction there is also a view that the defences of duress should be done

away with and it should only be considered at the sentencing stage.

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The British Law Commission says that duress should be defence for murder with shifted burden

of proof. Some says that intentional killing of human being can never be excused. Duress has

been held to be no defence to attempted murder as well26.

CONCLUSION:

Over a period of time several views have been expressed about the status of these defences and

questions have been raised as to whether these defences should be exonerating (totally excusing)

or mitigating (reducing sentence). Supporters of deterrent theory (preventive) have a particular

problem. Their general approach is to maintain that the stronger the temptation or pressure to

commit a crime the stronger the laws threat should be in order to counterbalance it. This is to

strengthen resolve under pressure. However even Bentham admitted that penalties and

punishments are inefficacious when an acute threat is there.

The concept of utilitarianism insists that the defences should be done away with because over a

period of time in a world where social and economic pressures are increasing there would be a

net saving of lives if these defences were done away with.

Finally put forth are the proposed changes in the Indian Penal Code.

 S.81 should remain as it is.

 S.94 should read as follows,

“Except murder, and offences against the state punishable with death, nothing is an offence

which is done by a person who is compelled to do it by threats, which at the time of doing it,

26
Gotts, [1992] 2 AC 412

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cause apprehension that instant death or grievous hurt to that person or another in whom he is

interested will otherwise be the consequence, provided ……..”

Thus the scope of s.94 should be widened.

BIBLIOGRAPHY

CASES REFERRED:

 DPP for Northern Ireland v. Lynch, [1975] AC 653

 Valderamma-Vega, [1985] Crim LR 220

 [1947] KB 997.

 DPP v. Pittaway, [1994] Crim LR 600

 Devji Govindji, (1895) 20 Bom 215

 (1971) 2 All E.R. 244

 [1982] 1 WLR 294

 [1987] AC 417

 (1986) 83 Cr App R 173.

 Sanlaydo, (1933) 35 Cr LJ 262

 [1987] QB 853

 Note: Duress and Murder”, 19  CLQ 161

 1957 Cri LJ 344

 Emperor v Antar Air 1925 All 315

 [1977] AC 755

 [1992] 2 AC 412.

 Gotts, [1992] 2 AC 412

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BOOKS REFERRED:

 Feinberg, Joel, Harm to Others, Vol 1, Oxford Univ Press: New York, 1984

 Sistare, C.T., Responsibility and Criminal Liability, Kluwer Academy: Dordrecht, 1989

 Alldridge, “Developing the defence of duress”, [1986] Crim LR 433;  K.J.M. Smith,

“Must

 PSA Pillai, The Criminal law Lexis Nexis 12th edition 1956 pg no 135

 Gaur, K.D., A Textbook on the Indian Penal Code, Oxford and IBH: New Delhi, 1992,

p.143.

 Gemone, Marise and Herring, Jonathan, Criminal Law, 2nd Edn., Macmillan: London,

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 Gardner, Simon, “Duress in Attempted Murder”, 107 LQR 389

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