UNIT 7: GENERAL DEFENSES

7.1 Concept & Meaning of General Defenses

7.2 The Rationale and Justification behind General Defenses
7.3 Classification of General Defenses
7.3.1 Excusable Defenses
7.3.2 Justifiable Defenses

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 Substantive
Criminal Law

Positive Aspects
Negative Factors
of Criminal
of Criminal Law/
Law Offence
Defense (Not Crime)/
(Crime)
Valid Defense

Criminalization Penalization Justification Excuse

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 From Blame to
Criminal Liability

Blame Actus Mens Rea Absence of Criminal

Reus Valid Liability
Defense

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 Criminal Liability

Crime- Offence Defense

Criminalization
Punishment/Penalty
Penalization

Actus Reus Mens Rea General Defenses Specific Defense to

Particular Offence

Provocation

Lawful Justifications Excuses

Diminished
Mistake Responsibility

Consent Necessity Duress Private Defense Infancy Battered Women

Syndrome
Insanity
Suicide Pact
Intoxication
Infanticide

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7.1 General Introduction to General Defenses

General
Defense

Excuse- Justification
Actor (Act/Behavior-
(Capacity) Circumstances/
Conditions)

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• The term ‘defence’ in criminal law is exemption from criminal
liability of a defendant based on some grounds. Or to put
simply, It is the exception of criminal liability.
• Defence is considered as the bar for conviction in criminal
offence.
• Defence is defined as a pleading served by the defendant in
answer to the plaintiff’s/prosecutor’s statement of claim.
• CRIME = MENS REA + ACTUS REUS + ABSENCE OF VALID
DEFENCE
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• According to Robinson the term ‘defence’ is commonly used,
at least in a casual sense, to mean any set of identifiable
conditions or circumstances which may prevent a conviction
for an offence.
• The term “General Defenses” is used to convey that such
defenses are available to all crimes.
• Some defenses are not “general” but specific to particular
offences: for example, provocation and diminished
responsibility are defenses only to murder, reducing liability
to manslaughter.
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• It must be stressed that the title “General Defenses” is
adopted purely for expository conveniences.

• It is patently untrue that all these defenses are available to

all offences.

• For example, duress is not available for murder and

intoxication is not available for most offences.
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Classification of General Defenses
• Robinson has categorized all these bars of conviction into five general
categories on the basis of rules and doctrines which are as follows:
• failure of proof defences
• offence modification defences
• justifications
• excuses, and
• non exculpatory public policy defences

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• Robinson further opines that only last three categories, out of five
aforesaid categories, are considered as general defenses
• Justifications
• excuses, and
• non exculpatory public policy defenses
• Further he opined that the previous two categories, as stated below,
cannot be considered as general defenses. These previous two categories
are considered as only defenses in criminal law.
• failure of proof defenses, (Instances in which, because of the conditions
that are the basis for the "defense", all elements of the offense charged
cannot be proven. In essence, they negate an element) and
• offence modification defenses (Offense modification defenses are real
defenses in the sense that they do more than simply negate an element of
an offense. Like failure of proof defenses, they commonly apply to only one
specific offense.)
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Conceptual background…
• The general defence can be applied generally in all criminal cases
universally. Justification, excuse and non exculpatory public policy
defences are considered as general defences.
• Generally, the term ‘general defence’ is confused with the terms
‘private defence’, ‘self defence’, ‘defence of others’, ‘defence of
property’, ‘defence of chastity’ and ‘defence of chattels’ even these
later terms are the species of general defence.
• Therefore, the general defence is the genus of the private defence.
• The private defence includes self defence, defence of others, defence
of property, defence of chastity and defence of chattels which have
different connotation.
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• Mostly, private defence and self defence are used as synonym which may
extend to defence of property.
• But private defence and self-defence signify different literal meaning.
• It is apparent that self defence means defence of one’s own person but not
defence of even one’s own property whereas private defence signifies
defence of one’s own property as well as defence of other’s person and
property.
• In one side, self defence, defence of others, and defence of property are
often separately defined…on the other, these defences overlap; they are
sometimes combined in a hybrid e.g. self defence, defence of others and
defence of habitation or premises. These terms can be considered as
private defence in aggregate.
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• By this discussion, we can observe that the self defence does not
cover defence of others, defence of property, defence of chastity and
defence of chattels rather it is confined only to defence of one’s own
person.
• It seems clear that self defence has the narrow meaning whereas
private defence has the broader meaning as general defence
• It can be further observed that the above mentioned terms do not
have same significance.
• Defence may not imply what general defence may imply in strict
sense.
• Therefore, it could be evaluated that all defences are not general
defences but all general defences are the defences.
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• A defence cannot theoretically be applied to all offences but the general
defence is general and universal one which can theoretically be applied to
all offences which negates the criminal liability of an offender.
• Likewise, general defence is not only private defence or self defence or
defence of others or defence of property or defences of chastity or
defences of chattels but all these later defences are general defences.
• General defence includes mistake of fact, insanity, infancy, intoxication (but
not self induced intoxication), consent, good faith, necessity, duress or
coercion, private defence which include self defence, defence of others,
defence of property, defence of chattels and defence of chastity either
excuse or justification.
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Justification…
• Justification defenses are not alterations of the statutory definition of
the harm sought to be prevented or punished by an offence.
• The harm caused by the justified behavior remains a legally
recognized harm which is to be avoided wherever possible.
• This category of General Defense is also known as lawful justification.
• In this category of defense, focus is given to the circumstances in
which such conduct or behavior of the doer is considered as legally
justified.

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• Justification defenses are those where what was clearly criminal conduct is
deemed not to be so because the criminal circumstances make the conduct
socially acceptable in some way.
• In some legal systems, “partial defenses” may operate with respect to
certain criminal offenses.
• A partial defense will not completely exonerate a person from criminal
responsibility but it may serve to reduce offence and any applicable
penalty.
• For example, in case of murder, the presence of provocation may reduce
the charge to that of manslaughter or voluntary homicide.
• The defense of diminished responsibility is also relevant in some systems in
the same way.

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• Justification can be a defence in a prosecution for a criminal offense.
• When an act is justified, a person is not criminally liable even though
his act would otherwise constitute an offense.
• Justification in jurisprudence is not the same as an excuse.
• A justification sets forth an exception to the prohibition of committing
certain offenses.
• For example, to commit a homicide intentionally would be considered
murder. However, it is not considered a crime if committed in self-
defence.

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• Justification defences are not alterations of the statutory definition of the harm
sought to be prevented or punished by an offence.
• The term harm caused by the justified behavior remains a legally recognized
harm which is to be avoided whenever possible.
• Under the special justifying circumstances, however, that harm is outweighed by
the need to avoid an even greater harm or to further a greater social interest.
• All justification defences have the same internal structure: triggering conditions
permit a necessary and proportional response.
• The triggering conditions are the circumstances which must exist before the actor
will be eligible to act under a justification.
• In defensive force justifications an aggressor must present a threat of unjustified
harm to the protected interest, as by attempting to harm defendant’s interest.

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• The triggering conditions of a justification defence do not in themselves give the
actor the privilege to act without restriction.
• To be justified, the response conduct must satisfy two requirements:
 (1) it must be necessary to protect or further the interest at stake, and
 (2) it must cause only a harm that is proportional, or reasonable in relation
to the harm threatened or the interest to be furthered.
• It shows that unnecessary and un-proportional or unreasonable use of force is
not allowed in justification.
• If the defendant fails to prove the necessity and proportionality or
reasonableness of his action against threatened harm then he or she cannot be
acquitted from criminal charge.
• The primary conditions of justification are necessary and reasonable use of force
against threatened harm for the protection of defendant’s interest.

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Excuse
• In contrast, an excuse (legal) is a defence that recognizes a crime was
committed, but that for the defendant, although committing a socially
undesirable crime, conviction and punishment would be morally inappropriate
because of a personal inadequacy, such as mental defect, lack of mental
capacity, sufficient age, intense fear of death, lacked the ability to control his
conduct.
• Or, we can say that Excuses admit that the deed may be wrong but excuse the
actor because conditions suggest that the actor is not responsible for his deed.
• This category of defense is also known as a grounds of excluding criminal
responsibility.
• In this category of defense focuses is given on the actor who have caused or
committed the criminal offence.
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• Due to not having the capacity to commit a criminal offence he or she
is excused and excluded from the criminal responsibility.
• Defenses that fall under the category of “excuse” or “exclusion of
criminal responsibility” excuse a person from morale blame even
where his or her conduct was criminal.
• Criminal responsibility may be excluded where the person’s behavior
is not voluntary (e.g., intoxication) or where the person lacked
capacity (e.g., in the case of insanity).
• What is included under “exclusion of criminal responsibility” is a
matter of public policy for a state.

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• For example, states that allow criminal responsibility to be excluded
on the basis of intoxication commonly preclude the use of this
defense where a person has become voluntarily intoxicated, as it is
well known that intoxication can impede a person’s judgment.
• Excuses are not subject to punishment based on the characteristics of
the defendant. An example is an offender who is legally insane or
under seven years of age.

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• An ‘excuse’ or ‘justification’ is a form of immunity that must be
distinguished from exculpation.
• In this context, ‘to excuse’ means to grant or obtain an exemption for
a group of persons sharing a common characteristic from a potential
liability.
• ‘To justify’, as in justifiable homicide, means to ‘vindicate’ or to show
the justice in the particular conduct.

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• Excuses, like justifications, are usually general defences applicable to all
offences even though the elements of the offence are satisfied.
• Excuses admit that the deed may be wrong, but excuse the actor because
conditions suggest that the actor is not responsible for his deed.
• Society would in fact condemn and seek to prevent such act which falls
under the excusable defences.
• Each of the excuse defences has the following internal structure: a
disability causing an excusing condition.
• The disability is the abnormal condition of the actor at the time of offence.
• We say, for example, that the actor is suffering from insanity, intoxication,
sub normality, or immaturity.

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Robinson has stated that society is generally willing to
excuse an actor under four types of conditions:
 When the conduct constituting the offence is simply not the product of the
actor’s voluntary effort or determination (e.g. the actor is having a seizure);
It occurs where the actor cannot be said performing a volitional act...

 When the conduct is the product of the actor’s voluntary efforts or

determination, but he does not accurately perceive the physical nature or
consequences of the conduct

It occurs where there is a voluntary act by the actor, but he is appropriately

exculpated because he is unaware of the nature of his act, that is, unaware of
his physical nature or consequences.
For example, an actor who, suffering from delusion that he is squeezing a
lemon, strangles his wife. The defect is one of perception, resulting from
insanity or intoxication…automatism, which are often included, accurately in
the involuntary act defence.
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 When the actor accurately perceives and understand the physical nature of the
conduct, its physical results, and physical surroundings, but does not know that the
conduct or its results are wrong or criminal
The actor engages in conduct voluntarily and knows the nature of his act, but does
not know that the act is wrong or criminal. This is defect in knowledge.
It can result from a simple lack of information, or from a lack of the intelligence or
cognitive function necessary to use available information to determine wrongfulness
or criminality.
This basis for exculpating the actor underlines the defences of insanity, sub
normality, intoxication, immaturity, and certain mistake defences.
Insanity and Intoxication may cause both this excusing condition and the second
condition as mentioned above.
(‘To exculpate’ means to free a particular individual from culpability after he or she
has caused loss or damage and to represent this in a judgment that is either an
acquittal or mitigates sentencing in the criminal law.)

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  When the actor perceives the conduct accurately and fully, understands its
physical consequences, and knows its wrongfulness or criminality, but the actor
lacks the ability to control his conduct to such an extent that it is no longer
proper to hold him accountable for it.
The actor engages in conduct voluntarily, correctly perceives the nature of
his act, and is aware that it is wrong. He is exculpated because he lacks the
capacity to control his conduct: he cannot fairly be held accountable for it.
Insanity and intoxication may cause this excusing condition as well as the
previous two.
The duress defence is based solely on this defect in control.
Hypnotism is sometimes recognized as an excuse because it may cause this
fourth excusing condition, although it is often incorrectly listed as an
example of the involuntary act defence, the first excusing condition.

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 Main Categories of General Defenses

Excusable Defenses

Excusable Defense

Mistake Infancy Insanity Intoxication

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Mistake

Mistake

Mistake of Law Mistake of Fact

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The Rationale and Justification of Mistake as
General Defense
• The justification for exemption from criminal responsibility on
ground of mistake of fact is based on the principle that a man who is
mistaken about the existence of a fact cannot form necessary
intention required to constitute a crime and is, therefore, not
responsible in law for his deeds.
• A mistake of fact constitutes a defense in those instances that the
defendant’s mistake results in a lack of criminal intent.
• Thus, a bona fide belief in the existence of facts, if they do exist,
would make an innocent.

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• A Mistake of fact, rather than law, is a defence where it prevents the
defendant from forming the mens rea which the law requires for the
crime.
• Mistake of fact negates the requirement of mens rea. Thus, in the
absence of mens rea it is not possible to hold a person liable for
criminal Act .
• The act of the defendant is excused because there is the presence of
certain conditions which allows the defendant to exculpate from
criminal liability.

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Mistake of Law:
The conventional wisdom is ignorantia lexis non exusat: “ignorance of law is no
excuse.” The rule that mistake of law does not constitute a defense is based on
several considerations:

• Knowledge: People are expected to know the law.

• Evidence: Defendant’s may falsely claim that they were unaware of the law. This
claim would be difficult for the prosecution to overcome.

• Public Policy: The enforcement of the law insures social stability.

• Uniformity: Individuals should not be permitted to define for themselves the

legal rules that govern society.

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Nepalese Legal Provisions on Mistake
• In Nepal there is not general or specific provisions relating to mistake. But the Bill
of Criminal Code has incorporated the provisions related to mistake.
• Section 8 of the Bill of Criminal Code, 2011, which was tabled in Legislature-
Parliament has provided as follows about Mistake of Fact.
8. Act done by mistake of fact not to be offense:
“No act done, believing to be done or excused by law, by mistake of fact in good
faith, shall be deemed to be an offense.”
• Provided that an act committed by ignorance of law shall not be excused.
• Sec 8 of the Muluki Penal Code, 2074
• Act done by mistake of fact not to be offence: No act done by a person who is,
or who by reason of a mistake of fact, in good faith believes that he or she is
bound by law to do that act or that such act is excused by law shall be considered
to be an offence.
Provided that no act done in ignorance of law shall be excused.
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Government of Nepal V. Kesh Bahadur Budhathoki,
NLR (2067), p. 1337, SC (DB), DN 8435
• Supreme Court of Nepal, in the case of Government of Nepal V. Kesh Bahadur
Budhathoki, has decided the issue related with the Mistake of Fact. In this case
the victim was killed by the defendant due to the Mistake of the Fact.

• The victim and the defendant and other three people went to forest for hunting.
The victim went to put the food (charo) for Kalij ( a kind of bird).

• The defendant was ready with gun. The defendant heard the sound of leafs and
thought that the hunt (Kalij) came and pulled trigger of the gun and victim was
killed.

• The Supreme Court held that Mistake of Fact is excused. But Mistake of Fact is not
excusable defense in Nepalese Criminal Jurisprudence. The fact of the case is
related with the accident and it decided the case by using section 5 (2) of the
Homicide Chapter of Muluki Ain.

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• Mistake of fact should not be confused with mistaken identity of the
victim and transferred malice.
• Mistake of fact differs with mistaken identity of the victim and
transferred malice.
• No question of a mistake of fact arises in cases of strict liability. (If the
mens rea is not required for criminal liability- mistake may not be a
defence even if it is reasonable one.)
self-induced intoxication cannot be used as a defence to a crime of
basic intent and neither could the defence of mistake be raised, if this
mistake were caused by self-induced intoxication. (R v Fotheringham
[1988] Crim LR 846)
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Infancy
The Rationale and Justification of Infancy as Defense
Children are excused because of following reasons:

• Children do not have capacity to separate the good things and bad things.

• They cannot understand about the act and consequences.

• Their mind is not fully developed.

• If reasoning power is not matured, then we cannot blame morally.

• Criminals are part of the society and society compels the children to commit
the crime.

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Nepalese legal provision….
The Act Relating to Children, 2075 (2018)
Date of authentication: 2075/06/02 (18 September 2018)
• Sec. 2(j) "Children" means persons who have not completed the age of
eighteen years.
• 36. Provisions relating to punishment: (1) If the child is less than ten years
of age at the time of commission of the offence, no case and punishment
of any kind shall be instituted against and imposed on him or her.
• (2) If a child of ten years of age or above but below fourteen years of age
commits an offence that is punishable by a fine, the child shall be released
after counseling him or her and if such a child commits an offence that is
punishable by imprisonment, the child shall be punished with
imprisonment for upto six months or be sent to the child reform home for
a period not exceeding one year without subjecting him or her to
imprisonment.

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• (3) If a child of fourteen years of age or above but below sixteen years
of age commits an offence, the child shall be punished with half the
punishment that is imposable on the person having attained majority
pursuant to the prevailing law.
• (4) If a child of sixteen years of age or above but below eighteen years
of age commits an offence, the child shall be punished with two-
thirds of the punishment that is imposable on the person of legal age
pursuant to the prevailing law.

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• (5) The Juvenile Court shall, having regard, inter alia, to the age, sex,
maturity of the child who is held to be subject to punishment
pursuant to subsection (2), (3) or (4), nature of the offence and also
the circumstances of the commission of the offence, postpone his or
her punishment or make any of following appropriate decisions as
punishment, with or without specifying the terms and conditions:
• (a) To counsel or advise the child about good human behaviours by
any family member or guardian,
• (b) To give orientation to the child through any institution or person
that provides the service,

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• (c) To provide single, group or family psycho-social counselling
service,
• (d) To keep the child under the observation of any family member,
guardian, school, person or institution that provides service for a fixed
period subject to the observance of the specified terms and
conditions,
• (e) To send the child for community service that is suitable to his or
her age, by specifying the nature and period of service,
• (f) To make the child stay in the child reform home for a period not
exceeding that of the punishment imposed on him or her.
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• (6) If any person has caused a child to commit an offence, by
teaching, giving pressure, ordering, luring or in any other manner,
that person who has taught so, given pressure, ordered, lured or
made to commit it shall be punished pursuant to law as if that person
committed the offence on his or her own.
• (7) Notwithstanding anything contained elsewhere in this Section,
while punishing a child who has not completed sixteen years of age,
no punishment of imprisonment shall be imposed on such a child
except in cases where he or she has committed a heinous offence,
grave offence or repeated the offence.

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Muluki Penal Code, 2074
• 13. Act of a child not to be offence: No act done by a child below
ten years of age shall be considered to be an offence.
• 28. Major liable to punishment for offence caused to be committed
by child: Where an offence is committed by a child upon being lured,
taught or influenced by a person to do so, such person shall be liable
to punishment as if the offence were committed by himself or herself.
• 45. Sentence imposable on children: (1) A person who has
committed an act constituting an offence under the law shall not be
liable to any sentence if that person has not attained the age of ten
years at the time of the commission of such act.

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• (2) In imposing the sentence of imprisonment on a person who is ten
years of age or above ten years but below fourteen years of age, such
person may be sentenced to imprisonment for a maximum of six months or
sent to a reform home for a maximum of one year instead of such
imprisonment.
• (3) Where a person who is fourteen years of age or above fourteen years
but below sixteen years of age commits any offence punishable by the
sentence of imprisonment, such person shall be liable to half the sentence
imposable by law on a person who has attained majority.
• (4) Where a person who is sixteen years of age or above sixteen years but
below eighteen years of age commits any offence punishable by the
sentence of imprisonment, such person shall be liable to two-thirds of the
sentence imposable by law on a person who has attained majority.

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Judicial Interpretation
• In the case of Government of Nepal V. Bikash Mahat and Others, there was
the issue related with the age of the accused.[1] If the age of the accused is
less than the age as prescribed in Children Act 2048, then what will be
duration of the imprisonment?

• The Supreme Court first decided the case on the basis of the No. 188 of the
Chapter “On Procedure” of Muluki Ain. Then it stated that the adult has
been imprisoned for ten years by using the above provisions of the Muluki
Ain, then the child should get the benefit of the Children Act 2048 and he
should be imprisoned for five years according to Section 11 (3) of the
Children Act 2048.
[1] Government of Nepal V. Bikash Mahat and Others, NLR (2067), Vol. 7., p.1159, SC (DB), DN 8415.

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 Insanity
The Rationale and Justification of Insanity as General Defense

• English common law initially did not consider a mental disturbance or

insanity as relevant to an individual’s guilt.

• In the thirteenth century, it was recognized that a murderer of

“unsound mind” was deserving of a royal pardon, and as the century
drew to a close “madness” was recognized as a complete defense.

• This more humanistic approach reflected the regrettable “wild beast”

theory that portrayed “madmen” as barely removed from “the brutes
who are without reason.”
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Why do we have insanity defense? Experts
cite three reasons:
• Free will: The defendant did not make a deliberate decision to violate the
law. His or her criminal act resulted from a disability.

• Theories of Punishment: A defendant who is unable to distinguish right

from wrong or to control his or her conduct cannot be deterred by criminal
punishment, and it would be cruel to seek retribution for acts that result
from a disability.

• Humanitarianism: An individual found not guilty by reason of insanity may

pose a continuing danger to society. He or she is best incapacitated and
treated by doctors in a noncriminal rather than in a criminal environment.

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Meaning, Nature and Kinds of Insanity
Insanity is an excusatory defense, rather than a justificatory defense that is the mental
condition of the defendant which eliminates culpability that would otherwise be liable.
• The insanity defense refers to a defense that a defendant can plead in a criminal trial. In an
insanity defense, the defendant admits the action but asserts a lack of culpability based on
mental illness.
Even when an actor’s conduct is not justified, because of a peculiarity of the actor or the
situation in which he/she finds himself/herself, he/she may be non culpable.
A defendant who, because of a disease of the mind, cannot appreciate the nature and
quality of her act, or cannot appreciate that it is wrong, lacks the practical reasoning skills
to be found responsible for what she has done, on this basis insanity ought to act as an
exemption.
An insane person is not held liable because he has no capacity to judge right from wrong.
He cannot make rational choice and has no capacity to appraise the nature and
consequence of his act.
Insanity is a condition in which a person because of mental disease loses the capacity to
think.
The insanity defense uses rules and standards to establish a defendant’s mental state as
sufficiently abnormal to excuse criminal responsibility.
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Definition

• A defendant who wishes to plead that he was insane at the time of

the offence must demonstrate that he was suffering from a defect
of reason caused by a disease of the mind which meant that
either:

(i) he did not know the nature or quality of his actions; or

(ii) he did not know that what he was doing was wrong.

(iii) If successful in his plea the defendant will be found ‘not

guilty’, but insane’.
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Several tests have been developed to identify
insanity:
• M’Naghten/ Right and Wrong Test

• Irresistible impulse test

• The New Hampshire or Durham test (the product test)

• The test recommended by the American Law Institute's Model Penal Code
or Substantial capacity test.

• The fundamental difference among these tests is whether the emphasis is

placed on defendant’s ability to know right from wrong or whether the
stress is placed on a defendant ability to control his or her behavior.
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  The Right and Wrong Test excuses individuals who, due to a mental
disease or defect, are unable to distinguish between right and wrong.
 Under the M'Naghten rule, it must be proved that at the time of the
offense the accused had a mental defect of the mind that prevented
an awareness of the criminal nature and quality of the act, or if the
nature of the act was known, it was not perceived as wrong.
 The Irresistible impulse test asks whether a mental disease or defect has
resulted in a loss of control and an inability to avoid committing a
criminal act.
 The irresistible impulse test applies to an accused who may know
the nature and quality of the offense and be aware that it is wrong
but who may be irresistibly driven to commit the act by an
overpowering impulse resulting from a defective mental condition.

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  The Durham product test excuses individuals whose criminal conduct results from a
mental disease or defect.
 The product rule states that a verdict should be not guilty by reason of insanity
if the offense resulted from or was the product of a mental disease in the
defendant.
 Person of unsound mind who does not know the merit, demerit and
consequences of his act is not liable- wider than M’Naghten rule.
 The Substantial capacity test broadens the right wrong and irresistible impulse tests.
 The Model Penal Code has met one of the main objections to the M'Naghten
test: its failure to recognize certain gradations in mental impairment.
 It accepts the theory that combines M'Naghten and the irresistible impulse test
by allowing the court to consider both awareness of wrongdoing and
involuntary compulsion.

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 The M'Naghten Rules/ The Right/Wrong Test
M'Naghten Case (1843) 10 C&F, 200, 8, Eng. Rep.718

• The M'Naghten rule was formulated in the course of an inquiry by the

House of Lords in 1843 directed to the judges of England.
• M'Naghten had been acquitted of the murder of the secretary to Sir
Robert Peel on the ground of insanity and the judges were requested to
clarify the law in this area by responding to five theoretical questions.
• The "test" has been adapted from the following passage:
. . . [T]o establish a defence on the ground of insanity, it must be clearly
proved that, at the time of the committing of the act, the party accused
was labouring under such a defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing; or, if he did
know it, that he did not know he was doing what was wrong. Or, it can be
broken down into three requirements.
(1) Disease of the mind,
(2) Defect of reason, and
(3) The defendant did not know the nature and quality of his act or that it was
wrong

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Disease of the Mind
is not a medical but a legal question to be decided
 disease, which produces a malfunctioning of the mind
 a disease of the mind, and need not be a disease of the brain
 It covers any internal disorder

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Defect of Reason
"defect of reason" seems to mean that the powers of reasoning must be
impaired, not merely confusion or absentmindedness
A defect of reason which had one of two consequences: either
 (a) the defendant did not know the nature and quality of his act, or
 (b) he did not know his act was wrong
Nature and Quality of the act refers to the physical nature and quality of the
act. covers the situation where the defendant does not know what he is
physically doing. A cuts a woman's throat under the idea that he was cutting a
loaf of bread.
Knowledge that the act was wrong if the defendant knew what he was doing
then he will still be insane if he did not know that he was doing something
legally wrong - R v Windle [1952] 2 QB 826

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Insane Delusions
 M’Naghten rule emphasizes that delusions, which do not prevent the
defendant from having mens rea, will afford no defence.
 A case often discussed is that of a man who is under the insane
delusion that he is obeying a divine command.
 If the accused knows that his act is forbidden by law, it seems clear
he is liable.

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The Legal Equation of M’Nagthen Insanity Defense
M’Naghten Right Wrong Test= Defect of reason from a disease of the mind + At the time
of the act did not know + The nature and quality of the act Or That the act was wrong.

Mental
Disease or
Defect of the
Mind
M’Naghten
Insanity
Defense:
Not-Guilty
Inability to
know Nature Verdict
or Quality of
the Criminal
Act or That the
Criminal Act
was wrong

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 The Irresistible Impulse Test
• The modification of the M'Naghten rule which has attained widest acceptance is
the "irresistible impulse" test.[1] It recognizes impairment of the will, holding
defendant not responsible, even though he knew the nature and quality of his
act and its wrongfulness, if he was unable to resist it due to deprivation of will
power. [2]
• The M’Naghten test was criticized for focusing on the mind and failing to
consider emotions.
• Critics pointed out that an individual may be capable of distinguishing between
right and wrong and still may be driven by emotions to steal or to kill.
• The irresistible impulse test was first adopted by the Alabama Supreme Court in
1887 in the case of Parsons v. State.
• [1] See Keedy, Irresistible Impulse as a Defense in the Criminal Law, 100 U. PA. L.
REv. 956 (1952).
• [2] Smith v. United States, 36 F2d 549 (D.C. Cir. 1929).
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In 1887, in Parson v. State, the Albama Supreme
Court articulated the irresistible impulse test.
1. At the time of the crime was the defendant afflicted with a “disease of the mind”?

2. If so, did the defendant know right from wrong with respect to the act charged? If not, the law
excuses the defendant.

3. If the defendant did have such knowledge, the law will still excuse the defendant if two
conditions occur:

a) If mental disease caused the defendant to so far lose the power to choose between right and wrong
and to avoid doing the alleged act that the disease destroyed the defendant’s free will, and

b) If the mental disease was the sole cause of the act.

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The Legal Equation of Irresistible Impulse Defense
Irresistible Impulse Test= Mental disease or mental defect (psychosis or physical defect) + Inability to
resist criminal activity (may have ability to distinguish right from wrong).

Mental Disease
or Defect of the
Mind

Irresistible
Impulse
Defense:
Not-Guilty
Inability to resist
criminal activity
Verdict
(may have ability to
distinguish right
from wrong).

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The Durham Product Test
• A revolutionary event in the controversial course of the M'Naghten rule
was the 1954 Durham [1] case where the rule was rejected as the sole test
of criminal responsibility for the District of Columbia. Although the court
referred to the "enormous development in knowledge of mental life" the
rule it adopted was the eighty year-old New Hampshire "product" rule:
 It is simply that an accused is not criminally responsible if his unlawful
act was the product of mental disease or mental defect. We use
"disease" in the sense of a condition which is considered capable of
either improving or deteriorating. We use "defect" in the sense of a
condition which is not considered capable of either improving or
deteriorating and which may be either congenital, or the result of
injury, or the residual effect of a physical or mental disease.

• [1] Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954).

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• The Durham product test was intended to simplify the determination of legal
insanity by eliminating much of the confusing terminology.
• The “product” test was first formulated by the New Hampshire Supreme Court in
State v. Pike in 1886.
• This standard was not accepted or even considered by any other jurisdiction until
it was adopted in 1954 by the US Court of Appeals from the District of Columbia.
• Durham provided that an accused is “not criminally responsible if his unlawful act
was the product of mental disease or mental defect.” Or,
• A criminal defendant can't be convicted of a crime if the act was the result of a
mental disease or defect the defendant had at the time of the incident. It has
often been referred to as the "product defect rule," but doesn't require a medical
diagnosis of mental illness or disorder.
• This permitted expert witnesses to provide broad range information concerning a
defendant’s mental health and simplified the task of the jury, which now only
required determining whether the defendant acted as a result of a mental
disorder or defect.

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The Legal Equation of Durham Product Test
Durham Product Test= Unlawful + Product of disease or defect

Mental
Disease or
Defect of
the Mind

Durham
Causes
Insanity
Defense: Not-
Guilty Verdict

Criminal
Conduct

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The Substantial Capacity Test
• Psychiatric experts urged the American Law Institute (ALI) to incorporate the
Durham product test into the Model Penal code.
• The ALI, instead, adopted a modified version of the M’Naghten and Irresistible
Impulse tests in its Model Penal Code. Under Section 4.01 (1) (2) provides that:
“A person is not responsible for criminal conduct if at the time of such conduct as a result of
mental disease or defect he lacks substantial capacity either to appreciate the criminality
(wrongfulness) of his conduct or to conform his conduct to the requirement of law…The terms
“mental disease or defect do not include an abnormality manifested by repeated criminal or
otherwise antisocial conduct.”
• The defense has two elements. The first element requires the
defendant to have a mental disease or defect, like the M’Naghten and
irresistible impulse insanity defenses. The second element combines
the cognitive standard with volitional, like the irresistible impulse
insanity defense supplementing the M’Naghten insanity defense.
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• In general, it is easier to establish insanity under the substantial
capacity test because both the cognitive and volitional requirements
are scaled down to more flexible standards.
• Unlike the M’Naghten insanity defense, the substantial capacity test
relaxes the requirement for complete inability to understand or know
the difference between right and wrong.
• Instead, the defendant must lack substantial, not total, capacity.

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• The “wrong” in the substantial capacity test is “criminality,” which is
a legal rather than moral wrong.
• In addition, unlike the irresistible impulse insanity defense, the
defendant must lack substantial, not total, ability to conform conduct
to the requirements of the law.
• Another difference in the substantial capacity test is the use of the
word “appreciate” rather than “know.”
• The Word appreciate incorporates an emotional quality, which means
that evidence of the defendant’s character or personality is relevant
and most likely admissible to support the defense.
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The Legal Equation of Substantial capacity test
Substantial Capacity Test= Mental disease or defect + Substantial incapacity + To
appreciate criminality (wrongfulness) of an act Or Conform conduct to requirements
of the law.
Mental
Disease or
Defect of
the Mind
Substantial
Capacity
Insanity
Substantial
incapacity + To Defese: Not-
appreciate
criminality Guilty Verdict
(wrongfulness)
of an act Or
Conform
conduct to
requirements of
the law.

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Nepalese Legal Provisions…
• Number 1 of the Chapter on “Punishment” of Muluki Ain 2020 states, “
Where a person who commits any act that is considered by law as an
offense is so of unsound mind or insane that he or she cannot know the
nature and consequence of the act committed by him or her………. At the
time of the commission of that act, such person shall not be guilty of such
offense nor shall such person be liable to any kind of punishment.

………….Where any person teaches a person who is of unsound mind or

insane to commit any offense and such offense is so committed by the
person of unsound mind or insanity, the person who so teaches shall be
liable to punishment in full as if he or she were the principal offender.”

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• Section 14 of Bill of Criminal Code 2067, “Act done by a person of
unsound mind not to be offense” states “No act done by a person
who, at the time of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature, characteristics, fault or
consequence of such act, shall be deemed to be an offense.”
• Sec 14 Act of a person of unsound mind not to be offence: No act
done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature,
characteristic, fault or consequence of such act, shall be considered
to be an offence.

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Judicial interpretation…
• Naresh Basnet vs HMG NKP 2062, Vol 12, DN 7633, p. 1506
• Case: Culpable Homicide, Issue: Insanity
• The case was filed under Number 13 (1) of the Chapter on Homicide. The
defendant killed her wife by attacking 3-4 times on her head with lethal
weapon like axe. The defendant confessed his crime and he was convicted
by all three tiers of the court. But the defendant claimed that the crime
was committed due to his insanity. Therefore, he should be exempted from
punishment. But the court held that insanity is an excusable defense, but
the defendant did not prove that he was insane. Just staggering and not
speaking anything during the time of giving his statements in the court
cannot suffice for insanity defense. Therefore, Number 188 of the Court
Procedure cannot be attracted in this case because the crime was
committed with having mens rea.

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The Rationale and Justifications of Intoxication as
General Defense
• John E. Hodge, "Alcohol and Violence" in Pamela J. Taylor (ed.), Violence in Society
(1993). pp. 132-133.
(a) Moral theory: Probably the first was the pre-scientific 'moral theory', which held that
drinking loosens moral restraints, with the result that individuals who drink lose personal
control and, as a scientific validity, it is still popular. Labeling alcohol as the culprit
provides a convenient scapegoat for violent act.
(b) Disinhibition theory: Behavioral constraints are loosened by pharmacological action
of alcohol, and violence then results. However, the theory appears to imply that
aggression is a natural state which is normally held in check which can be released by the
pharmacological effects of alcohol. However, there is little evidence that aggression or
violence is a normal human state. Sobell and Sobell suggested that alcohol may directly
act on the inhibitory control of the cerebral cortex over the lower brain centers and thus
disinhibit aggressive urges. However, no empirical evidence has been obtained which
either supports or refutes this hypothesis.
(c) Stimulation theory: Some have suggested that alcohol may directly stimulate
aggression in individuals who may in some way be more biologically sensitive to its
effects. A particular example of this is the theory of pathological intoxication, which
suggests that a small proportion of individuals are particularly prone to become
excessively aggressive under the influence of alcohol.

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 Intoxication
• Intoxication, in modern criminal law, is[1]:
 The person’s state of mind which is caused by consuming alcohol or
taking drugs,
 It is capable of altering mood, perceptions, or consciousness, or
loosing inhibitions and self-control,
 Of impairing movements, reactions, judgment and ability to foresee
consequences and
 Giving the taker exaggerated sense of his own capacity.
• Intoxication, which denotes to the condition that exists when person
consumes alcohol or other drugs to the extent that his or her mental or
physical abilities are significantly affected, has been recognized as
defence in criminal law under some circumstances.
• It is not recognized as defence where the intoxication is an element of
crime like driving whilst intoxicated.
[1] Cross and Jones (1984), Introduction to Criminal Law (11th ed.), London: Butterworth, p. 190

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 In criminal law, intoxication may be divided into following two categories:

Intoxication

Voluntary Intoxication Involuntary Intoxication

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 Voluntary Intoxication
Meaning of Voluntary Intoxication

“Intoxication is voluntary,
• Where it results from a person knowingly taking alcohol or some drugs
(otherwise than under and in accordance with medical advice) even
though the effect of the amount taken is much greater than would have
been expected.

• In other words, voluntary intoxication means the intoxication of a

person by an intoxicant which he takes, otherwise than properly for
medical purpose, knowing that it is or may be an intoxicant.

• In criminal law it is also called self-induced intoxication.”

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 Involuntary Intoxication
Meaning of involuntary Intoxication
Intoxication is involuntary where:
• It is not self-induced, as where the accused’s friend have slipped Vodka into
his ginger beer or

• Where he has been drugged by his enemies.

• Results from taking of drug administered or prescribed by a doctor ( in the

case of prescribed drugs) that the accused has taken them in accordance with
the doctor’s instruction.

• Intoxicated through strategy or fraud of others, or through ignorance, or

through any other means causing others,

• Or through ignorance or through any other means causing intoxication

without his knowledge or against his will.

• It is also termed as “non-voluntary intoxication.”

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"Dutch Courage" Intoxication

• Where a person deliberately reduces himself to a state of

intoxication to give himself "Dutch Courage" to commit a crime,
his intoxication will not be a defense even to crimes that can only
be committed with a specific intention.

• He is to be "blamed" to the same extent as the person who

intentionally commits a crime.

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Judicial interpretation…

• The Supreme Court of Nepal has also recognized intoxication as a ground of

mitigation of punishment in case of homicide.

• In Dal Bahadur Gurung V. HMG (NLR 1985), p. 863., where the accused father
killed his deceased daughter while intoxicated consuming excessive portion of
wine by stabbing with Khukuri repeatedly and resulting in consequent death of
his daughter.

• In this case, the Supreme Court of Nepal held that in the case, where there is
no any intention to kill and without having any murderous enmity, the accused
had killed the victim while he was intoxicated due to consuming excessive
dosage of wine, maximum punishment as per Section 13 (3) of the Chapter “Of
Homicide” would be grave for the accused so the punishment is reduced to 10
years imprisonment as per section 188 of the Chapter “Of Procedure.”

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• Similarly, in Man Bahadur Tamang V. HMG, (NLR 1988), p. 162., where the
accused and the deceased girl were relatives and gathered for a religious
programme in the village. The accused killed the victim while he was
intoxicated by consuming excessive liquor by hitting only one blow on the
head of the deceased with an axe as a consequence, she died on the spot.

• The Supreme Court held the opinion of the lower courts to reduce
punishment awarded for the accused as per Section 188 of Chapter “Of
Procedure” of Muluki Ain is reasonable, where the accused had killed the
victim without having any enmity consuming excessive portion of liquor.
The Supreme Court reduced the sentence of the life imprisonment
awarded by the lower courts to ten years imprisonment on the ground of
intoxication.

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 7.3.2.1 Justifiable Defense
• Categories of Justifiable Defenses

Justifications

Private defense Necessity Duress Superior Order

1/6/2022 78
Private Defense
• Private Defence is a type of legal defence that may be able to absolve
a person of any legal liability if the person hurt or killed another
person to defend himself/herself.
• Private defense means and includes:
 Private defense means to protect himself or herself or others,
 From attack of others,
 Or to save the property to be stolen or looted or robbed,
 To save the chastity

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Limitations of Private Defense…
• There must be the proportional relation between the attack and the
defense, or offensive force and defensive force.

• Right of Private Defense is only a weapon of protection and not aggression.

• Right of Private Defense is allowed where it is necessary.

• There must be an imminent apprehension of danger of one’s body and

property.

• The right can only be used against an aggressor not an innocent.

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• There is no right in case in which there is time to have recourse to the protection
of the public authorities/police/state.

• Russell has mentioned four conditions to apply the validity of the Right of Private
Defense:

• The accused must be free from fault bringing about the encounter.

• There must be imminent danger to life and property not remote danger.

• There has to be some responsibility of safe mode to escape except to attack.

• There was necessary to cause injury.

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Nepalese legal provisions of Private Defense…
• Section 7 (1), (2) and (3) of the Chapter “On Homicide”; Section 8 of
the Chapter “On Rape” provides right of self-defense, right of private
property, right of public property and right of defense of her chastity,
respectively.

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Muluki Penal Code, 2074
• 24. Act done for private defence not considered to be
offence: (1) Any act done in the exercise of the right of private
defence subject to this Chapter shall not be considered to be an
offence.
• (2) Every person has a right to defend the body, life or property of
his or her own or of any other person against any illegal harm, injury
• (3) The right of private defence under this Section shall be exercised
only when there is a reasonable apprehension or reasonable cause to
believe that the body, life or property of his or her own or of any
other person cannot be defended against any illegal harm, injury
unless any act is done immediately.

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• 25. Restriction on the exercise of right of private defense: (1)
Notwithstanding anything contained in Section 24, the right of private
defence is not available in the following circumstances or against the
following acts:
• (a) where there is time to have or likely to have recourse to the
protection of public authorities immediately to defend the body or
property of any one against illegal harm, injury at the time causing
such harm, injury,
• (b) where harm or injury caused to the body or property of a person
was so caused by reason that the harm, injury doer was provoked by
such person himself or herself,

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• (c) where a public servant does an act in good faith in pursuance of
a judgment or order of a court,
• (d) where a public servant does an act in good faith in the exercise
of his or her official power,
• (e) where any act is done by a person in pursuance of a direction
given in good faith by a public servant in the exercise of his or her
official power.

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• (2) Notwithstanding anything contained in sub-section (1), a person shall
not be deprived of the right of private defence in the following
circumstances:
• (a) where that person does not know or have a reasonable reason to
believe that the doer of the act referred to in clause (c) of sub-section (1) is
a public servant and he or she is doing the act in pursuance of the
judgment or order of a court or the doer does not disclose his or her
identity or produce the authority under which he or she acts even if so
demanded,
• (b) where there is no reasonable reason to know or believe that the doer
of the act referred to in clause (d) of sub-section (1) is a public servant,
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• (e) where there is no reasonable reason to know or believe that the
doer of the act referred to in clause (e) of sub-section (1) is doing
such act by the direction of a public servant or the doer does not
state that authority under which he or she acts or does not produce
the authority under which he or she acts even if so demanded.
• (3) While exercising the right of private defence under Section 24 or
under this Section, more force than it is reasonably necessary for such
defence cannot be used.

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• 26. No right to cause death: (1) In exercising the right of private defence
pursuant to this Chapter, no one shall have the right to cause a person’s
death.
• (2) Notwithstanding anything contained in sub-section (1), if any act done
in the exercise of the right of private defence, subject to sub-section (3) of
Section 25, in any of the following circumstances causes the death of a
person, such act shall not be considered to be an offence:
• (a) where there is reasonable cause to believe that an assault on oneself
or another person would cause the death of or serious injury or grievous
hurt to oneself or another person unless instant defence is exercised
against such assault,
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• (b) where any act is instantly done by the victim having reasonable
cause to believe that the assault is made with the intention of
committing rape or at the time of or after the commission of rape,
• (c) where hostage taking or kidnapping or abduction is committed
with the intention of causing death, taking ransom for kidnapping or
abduction, committing rape, causing grievous hurt,
• (d) where attempt is made to cause mischief by capturing of, deadly
weapon, fire or explosive substance committed on any building, tent
or vessel/vehicle, which is used for human dwelling or as the place
for worship or pray or the custody of property,

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• (e) where it is necessary to defend against robbery,
• (f) where the circumstance requires an instant retaliation by a
security personnel deputed by order of the competent authority for
the personal security of a person or security of a property of the
Government of Nepal, State Government or Local Level or a body
corporate under full or majority ownership or control of the
Government of Nepal, State Government or Local Level or public
property in order to prevent an assault made on such a person or
property.

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Classification of Private Defense
Private defense…
Private Defense

Self-defense Defense of Defense of Chastity

Property of women

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Self Defense…
Legal Equation
Self-Defense= Reasonable belief
+
immediately necessary
+
to employ proportionate force
+
to protect him or herself against unlawful force.

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Nepalese Legal Provisions on Self-Defense
• Section 7 of the Chapter “Of Homicide” of Muluki Ain

• Section 4 of the Chapter “Of Hurt” of Muluki Ain

• Section 4 of the Chapter “Of Cattle” of Muluki Ain

• Muluki Penal Code, 2074

Sec. 24, Sec. 25, & Sec. 26

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Judicial Interpretation on Self Defence
• Defendant Mani Kumar Rai vs HMG, NKP 2062, DN 7477, p. 1
• Case: Culpable homicide, Issue: Self-defesne
• The charge-sheet was filed under Number 13 (1) of the Chapter on Homicide
against the defendant Mani Kumar Rai. The defendant killed deceased Lagan
Bahadur Rai by attacking on his chest with a blade. The District Court and Court
of Appeal convicted the defendant as per demand of charge sheet. The
defendant appealed in the Supreme Court against decision of the trial court and
appeal court. His contention was that he counter attacked to the deceased when
the deceased attacked with a knife upon him. He attacked upon deceased for
self-defense. When he tried to defend himself and restrict the deceased from his
attack, then he was killed. But the court stated that it was not seen and found
from testimony submitted in the case of file that the deceased attacked the
defendant with a knife. The fight occurred due to leg crushing at the time of Dhan
Nach Mela. This crime was committed due to that. Therefore, the claim of self-
defense cannot be proved. But, after considering 18 years age of defendant, no
prior enmity with the deceased, the Supreme Court upheld decision of the Court
of Appeal and confirmed the opinion to imprison for ten year according to
Number 188 of Court Procedure chapter of Muluki Ain.

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 GoN vs Sanjib Kumar Singh Yadav and others, NKP 2064, Vol. 10, DN 7888, p. 1312
Case: Culpable Homicide, Issue: Self Defense

• In this case, the fact was that the charge-sheet was filed under Number 13 (1) of the Chapter on
Homicide of Muluki Ain for violation of Number 1 of Chapter on Homicide and punishment was
claimed accordingly against the defendants Dharmadev and Rajesh for killing his cousin by gun.
Other defendants are charged under 17 (3) and 25 Numbers. For attacking upon mother of the
deceased, the charge sheet was also filed according to number 15.
• In this case, the defendant Rajesh was convicted with punishment for life imprisonment along with
confiscation of property and others were acquitted. The appeal was filed by the defendant
Dharmdev against the decision of the District Court and appeal was filed by the plaintiff against the
decision of the District Court for acquitting other defendants.
• The Court of Appeal confirmed the decision of District Court for defendant Dharmadev and over
ruled the decision of Rajesh and imposed punishment for life imprisonment along with confiscation
of property. For other defendants, the District Court decision was confirmed.
• The defendants Dharmadev and Rajesh went further to appeal in the Supreme Court and contended
that they fired gun for self defense. But the Supreme Court upheld the decision of the Court of
Appeal.
• It stated that use of force shall be last resort in any murder case in order to get exemption under the
principle of self-defense. The requirement for self defense is that death should be proved to be
occurred while reacting against the assailant and such situation has been created in it is not possible
to escape from his grip or control. The presence of such situation should be proved by the
defendant. The arguments that presence of such situation has not been proved by the defendant
according to the principle of self defense.
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Defense of Property
• Section 7 (2) of the Chapter “Of Homicide” of Muluki Ain has provided that
Except in the case of a theft of food, vegetables or fruits from the field or garden,

• if someone is lurking (sneaking) to steal or engaging in theft by entering into a building

through a regular or irregular way

• or someone is entering into (a place) by digging a tunnel (Sen) to steal and

• sufficient help is not available to catch the thief or robber while making full effort for it,
and

• it is not possible to save the property,

• and in such a case the owner of the property takes an action in the meantime and

• the perpetrator dies in the course of such an action.................2

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Judicial Intrepretations

• In the case of HMG v. Shiv Mahato (NKP 2046, p. 1039) one of the
docoits was captured by the villagers and beaten to his death in the
name of defense of property. court has not made any comment on
such action.
• Defense in execution of public duty
• In HMG v. Jogendra Bdr Karki, a mob attacks upon a police post. The
person in duty Jogendra hits with rifle-butt as a consequence of
which the person dies. Jogendera is charged with murder but gets
acquitted by the court on the ground of self-defense.

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Defense of Chastity
• Section 8 of the Chapter “Of Rape” of Muluki Ain has provided that

• “In cases where a person with intention

• to attempt rape,
• assaults,
• rounds up (chhekthun),
• ties up (bandchhand) or
• uses force (jorjulum) by any other means to a victim and
• it is not possible to save the chastity (dharma) for the victim upon rescuing
herself from the offender by shouting, requesting for the help or by any
other means immediately,
• or where the victim is in a situation that if she does not do anything with
her idea (akkal) or power (barkat)

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…
• she may not be able to save her chastity due to serious fear or threat
so created over there before the commission of rape or
• even after the commission of rape where she could do nothing due
to lack of her power or force immediately,
• if such a victim, out of anger of such act, strikes a weapon, stick
(latho) or stone at the place of commission of rape immediately or
• within one hour upon pursing the offender from such place and
• the offender dies over there,
• such an act shall not be deemed to be an offence.
• In case the victim kills the offender after one hour, she shall be liable
to a fine of up to Five Thousand Rupees or imprisonment for a term
not exceeding Ten years.

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Judicial Interpretation…
“Striking with an offensive weapon against the person who is already
unconscious does not give room to defense of person or defense of
chastity.”
In the case of HMG V. Balmanjari Acharya and others, three accused
young girls went to forest to collect grass and fire woods and in the
forest the deceased assailant, Sher Bahadur, held one of the accused
girls, Bal Manjari and tried to rape her.
The accused girl in order to save her chastity caught and hold the
testical of the assailant and forcefully pulled it till he fell unconscious.
After that she alarmed other friends, Rita and Bhawani and they
together repeatedly stabbed the assailant with Khukuri and sickle all
over the body. Consequently the assailant died on the spot. Afterthen,
all the three girls went together to report the case to the police. Police
prosecuted them on the charge of murder.
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• The Supreme Court held that the punishment as per Section 13 (1) of
the Chapter “Of Homicide” for accused persons would be grave in a
situation where without having any enmity towards the assailant had
collectively but using weapon caused the death of the assailant who
had attempted to rape one of the accused. On the ground of above
mentioned factor, the Supreme Court reduced the punishment of the
life imprisonment along with the confiscation of property to five years
imprisonment for each accused.
• In the case of HMG vs. Dhanmaya (NKP 2031, p. 123), mother
Dhanmaya kills her son within 1 hour of the latest incident who rapes
her three times within a time span of one and half hour. The court
acquits her from a charge of murder.
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 Government of Nepal vs Samjhna Shreshta, Date of
Decision 069/9/2, Issue: defense of chastity
• In this case, the defendant gave her statements in the court that “the deceased Khadag Bahadur to
make his wife to the defendant the deceased caught the defendant. When the defendant could not
escape from clutch of the deceased, she attacked with a stick, on the hand of the deceased, lying
there and knife which was in the hand of the deceased fell there. When the deceased tried to catch
knife once again, she hit and run away. My intention was not to kill him. I hit to escape from clutch of
the deceased.” It is the continuation of the statements given during the period of investigation. In the
first information report given by Srijna Shrestha, she has mentioned in it that it is the case of Number
8 of the Chapter on Rape and it is matter of chastity, therefore it should be accordingly and she stated
accordingly in the court. The pleading of the lawyer on behalf of the defendant that the deceased
died due to hurt in sexual organ which caused his fall down from ladder cannot be acceptable and the
statement given by the defendant is appropriate. The deceased died on the same day in the evening.
Due to the attack of defendant, the defendant was killed. Therefore, the legal provision mentioned in
the latter part of the Number 8 of the Chapter on Rape shall be applicable and punishment imposed
for a term of four years imprisonment by using discretionary power is appropriate. Decision of the
Patan Court of Appeal is upheld.
• In this case there is direct nexus between the incidents and death of the deceased. But
interpretation of the latter part of Number 8 of the Chapter on Rape has narrowed down the right to
defense of chastity. If any woman kills within an hour to any julmi, then the defendant gets
exemption from punishment as per first part of the Chapter on Rape. If any julmi dies after an hour
from the attack of the defendant which was caused by within an hour and if any julmi dies after an
hour from the attack of the defendant which caused after an hour cannot be equated in the same
manner.

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Necessity
• Necessity could be a defense in a very limited situation, where the person has to act
instantly within limited alternative mean only in emergency cases. In such a situation, in
order to avoid larger risk one may pursue the course of action having smaller risk thereby
causing damage to person or property.
• This defense is based on Latin maxim necessitas non habet legume which means
necessity knows no law.
• The necessity defense recognizes that conduct that would otherwise be criminal is
justified when undertaken to prevent a significant harm.

• This is commonly called “the choice of evils” because individuals are confronted with the
unhappy choice between committing a crime or experiencing a harmful event.

• The harm to be prevented was traditionally required to result from the forces of nature.

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• Some countries have necessity statutes and other jurisdictions rely
on the common law defense of necessity. There is agreement on the
central elements of the necessity defense:
1. An immediate and imminent harm
2. The defendant also must not have been substantially at fault in creating
the emergency
3. The harm created by the criminal act is less than that caused by the
harm confronting the individuals
4. An individual reasonably expected a direct causal relationship between
his acts and the harm to be averted.
5. There were no available legal alternatives to violating the law.
6. The criminal statute that was violated does not preclude the necessity
defense

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Nepalese legal provisions on Necessity
• Section 28 of the Chapter “Of Homicide” of Muluki Ain has stated
as “Excepting the abortion caused due to something done out of
altruistic purpose,

a) a person shall be liable if he aborts,

b) or cause to abort or

c) helps to abort a pregnancy.”

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• Section 2 of the Chapter “On Medical Treatment” of Muluki Ain has provided that

“ In cases where a surgery has to be performed to split, burst, take out or cut (Chirna,
Forna, Jhikna, Katna) from the body for the best interest of the patient, the medical
practitioner or a Vaidhaya holding a certificate (Passwala) may himself or herself
perform such an operation upon receiving the consent of the patient

a) if he or she is major and conscious and

b) upon receiving the consent of the guardian if the patient is minor or in a state of
unconsciousness, and

c) even without receiving any consent but in the best interest of the patient on behalf of
the hospital in the case of a person without any guardian.

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Muluki Penal Code, 2074
Sec. 23. Act done in good faith to prevent other harm, injury not
to be offence: Any act done by a person shall not be considered to be
an offence merely by reason of its being done with the knowledge that
it is likely to cause harm, injury, if it be done without any criminal intent
to cause harm, injury, and in good faith for the purpose of preventing
or avoiding possible great harm, injury to life, person or property and it
was so imminent that greater harm, injury than such act was likely to
result in would be caused to the life, person or property of him or her
or any one else if such act was not done immediately.

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The Legal Equation
Necessity
=
Criminal action to be believed to be necessary to prevent a harm
+
The harm prevented is grater than will result from the criminal act
+
Absence of legal alternative
+
Legislature did not preclude necessity
+
Did not intentionally create harm.

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 Judicial interpretation…
• In the case of Marda Bdr Rai et al. v HMG (NKP 2043, p. 651), a group of people
approach at the house of a land lord and beg to distribute grain for survival of
themselves, as the villages has been suffering from drought. The land lord rejects
their demand thereupon thy interfere with the granary, divide the grain among
themselves and also apportion of it for the land lord. They too also some money
available in the house. Later, they were charged with dacoit. They took the defense of
necessity. The court acquits them on the ground that the elements necessary for
dacoit as defined by the law is not present in the case.
• Comment: Does the decision in this case suggest that the necessity is a defense
where there is drought in the village? It is dangerous to entertain necessity as a
defense in every sort of critical situation. The court did not analyze the alternative
means available to the group suffering from starvation. It is not clear whether they
were in emergency situation with only option to evade the granary. It is submitted
that the court’s perception should remain limited with this case only otherwise a
thief may plead that he committed theft because he had nothing to eat. A rapist may
plead that he had irresistible impulse against the women.
• See US vs. Holmes (1842)
• R. vs. Dudley and Stephens (1884)
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Duress
• Duress is a defense in a very limited course of action. A principal in first degree
cannot plead duress as a defense in murder charge.
• One should kill any innocent victim in the name of duress. Law also directs that one
should die better than to kill an innocent victim even in an extreme pressure.
• However, duress can be a defense in favour of persons who are acting as abettors
under pressure in all types of crime (i.e. in the case of Dhan Bdr. Mulan Tamang v
HMG, NKP 2042, p. 607: two persons were acquitted of the charge of abetting the
murder on the ground of duress.)
• Duress is a defence to all crimes except murder, attempted murder, and certain forms
of treason. To establish the defence a defendant must show that:

1. He or she committed the crime because of threats of death or grievous bodily harm.

2. A reasonable person would have acted as the defendant did.

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Requirements…
1. The defendant must act because of a threat of death or serious injury.

• The requirement contains a number of separate elements:

(1) The defendant must act because of threat or the circumstances.

(2) The threat must be one of death or grievous bodily harm.
(3) The threat can be of death or serious harm to any one.
(4) The threat must not come from the defendant himself.
(5) The defendant can rely on what he reasonably believed of threat
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2. The reasonable person must have responded to the threat in the
way the defendant did.

• In considering this issue there are various factors to be examined:

(1) The jury must decide that the reasonable person must have
responded to the threat as the defendant did.
(2) What the characteristics of the defendant should be attributed to
the reasonable person?

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Nepalese legal provisions on Duress

• 22. Act compelled by fear, threat not to be offence: No act done by

a person who is compelled to do it by fear or threat exerted or made
by another person carrying a deadly weapon or toxic or explosive
substance that that other person would kill or cause grievous hurt to
that person or his or her close relative if that person does not do that
act immediately and there is a reasonable cause to apprehend that it
would cause death or grievous injury to that person or close relative
if such act is not done immediately shall be considered to be an
offence.

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• Provided that, in the following circumstances, such act shall be considered
to be an offence:
• (a) where death or grievous hurt is caused,
• (b) where rape is committed,
• (c) where an offence against the State is committed,
• (d) where the person doing such act placed himself or herself in such a
situation of fear or threat, of his or her own accord or as a result of any
thing done by himself or herself.
• (2) The person who causes the offence to be committed by exerting fear
or threat under sub-section (1) shall be punished by law as if the offence
had been committed by himself or herself.

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Judicial interpretations…
• In the case of HMG v. Laxmi Mallaha (NKP 2033, p. 19), Laxmi was married to a
man in India. She had illicit relationship with a man in Nepal. Her husband
became suspicious on her conduct and handed over a dragon on her hand with
instruction that she should kill her paramour visiting to Nepal. otherwise he
himself would kill her. Laxmi came to Nepal with a dragon and killed Rasul (the
victim) while they were engaging in sexual intercourse. The court convicted Laxmi
and did not consider coercion exercised upon the woman by the husband.
• In the case of HMG v. Krishnalal Yadav, Ishwori (NKP 2044, p 671) was a married
woman who got pregnant because of involvement with Krishnalal. She informs
the fact to Krishnalal. One day when she was back home with grass load on her
back, Krishnalal forcibly took her into a house and managed to administer powder
medicine against her will. The next day, Ishwori suffered bleeding and miscarriage
of the baby. Krishnalal was convicted on the charge of illegal abortion. Ishwori
was acquitted because she had been under pressure to commission the crime.
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Superior Order…
• Generally superior order 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 as abettor or inciter to the act. Order giver is fully liable where
the person acting under him/her is a n innocent agent or minor. If the case
related to military officer or police force, the commanding officer can be
held legally responsible for the consequence of the act committed under
his/her order, the actual perpetrator getting only nominal punishment.
• In the case of HMG v. Dharanidhar Bhandari et al. (NKP 2041, p. 150)
Dharanidhar commands his peon Lakpa to beat Tachung in order to comply
him with the payment of compensation for damaging the property
(chhirumala) of the victim. Tachung dies after some days of the incident.
Dharanidhar and Lakpa are charged with murder. Lakpa absconds from the
jail. Dharanidhar gets acquitted on the ground that he had no intention to
kill.

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Prescribed cases…
1) Insanity
 Tritha Dongol vs. HMG, Decision No. 2355
2) Plea of Self Defense in murder
 Sanjiv Kumar Yadav et. at. Vs. HMG, Decision No. 7888
3) Crime Dies with Criminal
 Mayashwori Damini vs. HMG Decision No. 1414-2
4) Retrospective effect of law
 Uttam Lama vs. HMG, Decision No. 7432
5) Conspiracy
 Jasman Limbu vs. GON, Decision No. 8758
6) Nullum Crimen Sine Lege
 Manish Shrestha vs. GON, Decision No. 9047

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1) Insanity
Tritha Dongol vs. HMG, Decision No. 2355
In this case, Padma Raj Joshi is charged with murder of his own sleeping wife
by striking with axe. After the act, he cried in a loud voice that he killed
which was heard by his aged father, Shiva Dutta, working in the field. The
accused confessed his guilt in the police as well as in the court and narrated
that by the time in question he felt tense in his mind and committed the act
under the same tension. The doctor who examined him certified that he was
suffering from schizophrenia mental disease under which a person may
commit any type of act. Kanchanpur District Court acquitted, Far Western
Regional Court and Division Bench of Supreme Court convicted him. The full
bench of the Supreme Court acquits him on the ground of insanity and gave
importance to the evidence placed forward by the doctor, statement of the
spot by the accused as deposited by his father, the opinion of Sarjamin and
the unusual behavior of the accused which he displayed since the last 6/7
days.

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2) GoN vs Sanjib Kumar Singh Yadav and others, NKP 2064, Vol. 10,
DN 7888, p. 1312. Case: Culpable Homicide, Issue: Self Defense
• In this case, the fact was that the charge-sheet was filed under Number 13 (1) of the Chapter on Homicide of
Muluki Ain for violation of Number 1 of Chapter on Homicide and punishment was claimed accordingly
against the defendants Dharmadev and Rajesh for killing his cousin by gun. Other defendants are charged
under 17 (3) and 25 Numbers. For attacking upon mother of the deceased, the charge sheet was also filed
according to number 15.
• In this case, the defendant Rajesh was convicted with punishment for life imprisonment along with
confiscation of property and others were acquitted. The appeal was filed by the defendant Dharmdev
against the decision of the District Court and appeal was filed by the plaintiff against the decision of the
District Court for acquitting other defendants.
• The Court of Appeal confirmed the decision of District Court for defendant Dharmadev and over ruled the
decision of Rajesh and imposed punishment for life imprisonment along with confiscation of property. For
other defendants, the District Court decision was confirmed.
• The defendants Dharmadev and Rajesh went further to appeal in the Supreme Court and contended that
they fired gun for self defense. But the Supreme Court upheld the decision of the Court of Appeal.
• It stated that use of force shall be last resort in any murder case in order to get exemption under the
principle of self-defense. The requirement for self defense is that death should be proved to be occurred
while reacting against the assailant and such situation has been created in it is not possible to escape from
his grip or control. The presence of such situation should be proved by the defendant. The arguments that
presence of such situation has not been proved by the defendant according to the principle of self defense.

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3) Crime Dies with Criminal
Mayashwori Damini vs. HMG Decision No. 1414-2
• No. 176
• No. 186 – reference case

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4) Retrospective effect of law
Uttam Lama vs. HMG, Decision No. 7432
• In this case the fact was that the defendant Uttam Lama and others sold
the victim Charimaya Moktan in Shrawan (July ) 2043 BS in one brothel of
Bombay. The victim worked for ten years in brothel of Bombay and
returned in 2053 BS and file FIR against the defendant.
• The main issue of this case was also related with the retroactivity of law.
• The district court and Court of Appeal convicted and sentenced according
to the Human Trafficking Activity (Control) Act 2043.
• The defendant appealed in the Supreme Court against the decision of the
lower court and claimed that the decision of the lower court is against the
Article 14 (1) of the Constitution of the Kingdom of Nepal 1990.

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• In this the double bench of Supreme Court dismissed the claim of the
accused and submitted the case in the full bench stating that this type
of issue was also raised in the case of Pasang Dawa Lopachan.
• Out of three judges, the majority decision of the full bench of the
Supreme Court also upheld the decision of the lower court and
dismissed the claim of the defendant.
• But the dissenting opinion of the single judge Mr. Balram KC was
according to the claim of the defendant. Justice KC gave his dissenting
opinion that the application of the Human Trafficking Activity
(Control) Act 2043 is violation of right against retroactivity of law.

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5) Conspiracy
Jasman Limbu vs. GON, Decision No. 8758
• In this case, the Government Attorney submitted the charge sheet against Purna Bahadur
Limbu, one of the Accused of the case, claiming that he had to be punished according to
the Sec. 13(4) of the Chapter on Homicide of the Muluki Ain, 2020.
• The fact of the case was that he involved into the conspiracy to kill the deceased because
he was bitterly assaulted by the deceased group.
• The Supreme Court interpreted the claimed section and ruled that the physical presence
of the accused in the crime scene was essential element to be held criminally liable
according to section 13(4) of the said Chapter. In the case, the defendant was not present
in the crime scene but his involvement in conspiracy was proved.
• The court held the defendant guilty of criminal conspiracy on the ground that he was not
present on crime scene but involved in conspiracy to kill the deceased. He was punished
according to the Sec. 16 of the Chapter on Homicide.
• The court indirectly accepted that physical presence was not legal requirement in
criminal conspiracy rather involvement in agreement to commit the offense was
sufficient to be held liable.

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6) Nullum Crimen Sine Lege
Manish Shrestha vs. GON, Decision No. 9047

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