Doctrine of Necessity as a defence under section 81 of IPC

Doctrine of Necessity as a defence under section 81 of IPC

Author: Punam Pramanick, a student of Department of Law, Calcutta University, West Bengal

This article discuss about how doctrine of necessity used as a defence in crime. It’s implication and what conditions would be fulfilled for its used. 

Introduction: Section 81 of the Indian Penal Code embodies the doctrine of necessity, It states that nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm, normally greater harm, to person or property.

Illustration: A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence.

Conditions – 

For Section 81 to apply, the following conditions must be fulfilled:

1. The act must have been done without criminal intention (mens rea);

2. It must have been done in good faith; and

3. It must have been done in order to prevent or avoid other (greater) harm.

                                                                The doctrine of necessity can be found in Indian criminal law. Chapter IV of the Indian Penal Code, 1860 contains the provisions of ‘General Exceptions’ under Sections 76 to 106. If an individual commits any of the offences under the exceptions or circumstances as stated in Chapter-IV, then such individual is exempted from criminal liability. The individual will not face any punishment. The doctrine of necessity is also included in such general exceptions under Section 81 of the IPC.

Section 81 of the IPC talks about such acts which are likely to cause harm but where such acts are done without any criminal intent to cause harm. Such an act must also be done in good faith in order to avoid or prevent any kind of further harm to an individual or any property. However, the risk of doing such an act will be weighed against the nature and need of each situation.

In the case of preventing a harmful situation, an individual is given two options that result in some harm either way. In such a situation, to avoid or prevent greater harm, an individual due to utter necessity is compelled to commit an act that would otherwise be considered as an offence. In simple terms, the individual is required to choose between two evils and they must rightly choose the less evil option in order for the doctrine of necessity to applied.

Important Case Law

Regin vs Dudley and Stephens (1884): In this case The two defendants Dudley and Stephen and a boy between the ages of seventeen and eighteen were cast away in an open boat at sea following a storm. The boat drifted in the ocean and was considered to be more than one thousand miles from land. After seven days without food and five without water, Stephen suggested that lots should be drawn with the loser being put to death to provide food for the remaining two. Subsequently however, Dudley and Stephen colluded to the extent that the boy should be killed so that they could survive. On the twentieth day, with the agreement of Stephen, Dudley killed the boy and both the defendants ate him for the following four days until rescue. Later, a vessel rescued them and they were charged with committing murder to the boy. 

                                                         The Court held that in this case the killing of an innocent in order to have save own one’s live will not justify murder even though it was committed under the extreme necessity of hunger. Subsequently, the defendants were sentenced to death, however, it was later reduced to six months imprisonment.