Nov 30, 2025
Nov 30, 2025
Excusable & Justifiable Defences Under BNS, 2023: A Case-Law Enriched Analysis
Excusable & Justifiable Defences Under BNS, 2023: A Case-Law Enriched Analysis
Criminal law punishes intention, not accidents. That’s the backbone of the entire system. But understanding why the law excuses certain acts and justifies others demands more than reading BNS sections, it requires understanding how courts have treated these defences for decades. The courts have consistently endorsed the same philosophical split:
Excusable Defences → actor lacks capacity → no mens rea
Justifiable Defences → act itself is lawful → society approves the conduct
BNS reorganises the provisions but the underlying logic and the jurisprudence stays intact. Let’s break it down with relevant, authoritative case law.
1. Excusable Defences (Actor-Focused)
The actor is the issue.
The question is simple: Did this person have the mental ability to form criminal intent?
If the answer is “no,” the act is excused, because punishing incapable minds is pointless.
A. Mistake of Fact (BNS 14)
(Earlier IPC 76)
Key Case: Keso Sahu and Others v. Saligram Shah (1977) Cri LJ 1725 The accused genuinely believed the property (two carts transporting rice bags) they seized were used for smuggling of rice, which was an offense at the time. The court held that a “reasonable and honest mistake of fact” eliminates mens rea.
Principle:
A mistake must be real, reasonable, and relate to fact, not law.
B. Accident (BNS 18)
(Earlier IPC 80)
Key Case: Tunda v. Rex (Allahabad High Court, 1950)
Two friends were wrestling. One fell and died accidentally. The court held it was a pure accident without negligence.
Principle:
An unintended, unforeseen act occurring during lawful conduct → excusable.
C. Infancy (BNS 20–21)
(Earlier IPC 82–83)
Key Case: Krishna Bhagwan v. State of Bihar (AIR 1989 PAT 217)
A child under 12 was held incapable of forming mens rea due to insufficient maturity.
Principle:
Children lack criminal capacity. You don’t analyze the act, you analyze the child’s mental development.
D. Insanity (BNS 22)
(Earlier IPC 84)
Key Case: Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563)
This is the gold standard. The Supreme Court held that once the accused raises insanity as a defence, the burden doesn’t shift entirely, they only need to create reasonable doubt.
Principle:
Insanity must destroy cognitive ability at the time of the act, not before or after.
E. Involuntary Intoxication (BNS 23–24)
(Earlier IPC 85–86)
Key Case: Basdev v. State of Pepsu (AIR 1956 SC 488)
A military officer shot someone during a drunken quarrel. The court held voluntary intoxication does NOT excuse guilt, only involuntary intoxication can negate mens rea.
Principle:
Loss of control due to something you voluntarily consumed is not a defence.
Capacity loss due to involuntary intoxication → excusable.
2. Justifiable Defences (Act-Focused)
Here, the actor is not the point. The court looks at whether the act itself is lawful, necessary, or socially approved. Intent may exist. The act may appear violent. But if it fits within these defences, the law justifies it.
A. Justified by Law / Mistaken Belief that an act is Justified By Law(BNS 17)
(Earlier IPC 79)
Key Case: Chirangi v. State (1952 Cri LJ 1212)
The accused killed his own son believing him to be a tiger. The Supreme Court accepted the defence of mistake of fact and held the act justified.
Principle:
Not excused because of incapacity, justified because the act was right under the perceived factual situation.
B. Judicial Acts (BNS 15–16)
(Earlier IPC 77–78)
Key Principle Case: State of Rajasthan v. Prakash Chand (1998 1 SCC 1)
While not directly under “judicial acts,” it clarifies that judicial officers performing lawful duties get strong protection unless acting with malice.
Principle:
Judicial and quasi-judicial actions done within authority are justified.
C. Necessity (BNS 19)
(Earlier IPC 81)
Key Case: R v. Dudley & Stephens (1884)
Though an English case, Indian courts rely on it heavily. Two sailors killed and ate a cabin boy to survive. Court rejected defence but laid down the modern necessity doctrine.
Indian Position:
Indian courts accept necessity as long as:
harm caused < harm avoided,
the situation is immediate,
no lawful alternative exists
D. Consent (BNS 25–32)
(Earlier IPC 87–94)
Key Case: Bishambher v. Roomal (Allahabad High Court, 1950) The case involved Bishambher, who had allegedly molested a girl and, fearing a furious mob, consented in writing to have his face blackened, head tonsured, and be given a shoe-beating by a local panchayat to avoid harsher punishment. The court ruled that since the actions were performed with the complainant’s written consent and in good faith to prevent greater harm, they were not criminal offenses.
Principle:
Consent must be:
free
informed
from a person capable of giving consent
for acts the law permits
E. Trifling Acts (BNS 33)
(Earlier IPC 95)
(Earlier IPC 95) Key Case: Veeda Menezes v. Yusuf Khan (AIR 1966 SC 1773) SC
clarified what counts as trivial “hurt” and what does not. Genuine minor harms not intended for criminal ends may be ignored.
Principle: Law doesn’t waste time on petty annoyances.
F. Private Defence (BNS 34–44)
(Earlier IPC 96–106)
This is the strongest justification defence.
Key Case 1: Darshan Singh v. State of Punjab (2010 2 SCC 333)
The Supreme Court held:
The right to private defence is a fundamental, natural right. It allows causing death if reasonably necessary. Courts must not expect “weighing of golden scales” in sudden attacks.
Key Case 2: Yogendra Morarji v. State of Gujarat (1980 2 SCC 218)
Private defence applies even if the attacker had no deadly weapon, as long as the danger was reasonable.
Principle: A person facing unlawful aggression can cause harm, even killing, if necessary for self-preservation. The law judges the act, not the prior relationship or intention.
Category | Excusable Defences | Justifiable Defences |
Core Logic | Actor lacked the capacity to form mens rea | Act itself is lawful, necessary, or socially approved |
Focus | On the actor’s mental state, capacity, cognitive ability | On the act’s legality, necessity, justification |
Mens Rea | Absent due to incapacity | Present but overridden by legal necessity or approval |
Blameworthiness | Actor is not blameworthy | Act is not blameworthy |
Legal Philosophy | “You can’t punish someone who couldn’t form intent.” | “You can’t punish someone for doing the right thing.” |
Nature of the Defence | Defect in the actor (capacity failure) | Legitimacy of the act (law approves) |
Burden of Proof Trend | Defence raises reasonable doubt (e.g., insanity, mistake) | Act must show legal justification (private defence, necessity) |
Example to Remember | A child breaks a window → not liable (incapacity) | You break a window to save a trapped child → justified (necessity) |
3. The Clean Philosophical Split
Excusable = actor lacks capacity → no mens rea → not blameworthy
Justifiable = act is lawful / necessary / protective → society approves it.
This distinction is not academic, it is the backbone of how courts evaluate defences.
4. Final Takeaway: The Defence Lives or Dies Based on This Split
Every real-life defence fits into one of these two worlds:
If the actor’s mind was absent, impaired, or incapable → Excusable.
If the act serves law, necessity, consent, or survival → Justifiable.
And courts have consistently upheld this logic for over a century. BNS has reorganised the section numbers, but the jurisprudential foundation is exactly the same. Get the category right and your defence argument becomes precise. Get it wrong and you’re done before you even enter submissions.
Criminal law punishes intention, not accidents. That’s the backbone of the entire system. But understanding why the law excuses certain acts and justifies others demands more than reading BNS sections, it requires understanding how courts have treated these defences for decades. The courts have consistently endorsed the same philosophical split:
Excusable Defences → actor lacks capacity → no mens rea
Justifiable Defences → act itself is lawful → society approves the conduct
BNS reorganises the provisions but the underlying logic and the jurisprudence stays intact. Let’s break it down with relevant, authoritative case law.
1. Excusable Defences (Actor-Focused)
The actor is the issue.
The question is simple: Did this person have the mental ability to form criminal intent?
If the answer is “no,” the act is excused, because punishing incapable minds is pointless.
A. Mistake of Fact (BNS 14)
(Earlier IPC 76)
Key Case: Keso Sahu and Others v. Saligram Shah (1977) Cri LJ 1725 The accused genuinely believed the property (two carts transporting rice bags) they seized were used for smuggling of rice, which was an offense at the time. The court held that a “reasonable and honest mistake of fact” eliminates mens rea.
Principle:
A mistake must be real, reasonable, and relate to fact, not law.
B. Accident (BNS 18)
(Earlier IPC 80)
Key Case: Tunda v. Rex (Allahabad High Court, 1950)
Two friends were wrestling. One fell and died accidentally. The court held it was a pure accident without negligence.
Principle:
An unintended, unforeseen act occurring during lawful conduct → excusable.
C. Infancy (BNS 20–21)
(Earlier IPC 82–83)
Key Case: Krishna Bhagwan v. State of Bihar (AIR 1989 PAT 217)
A child under 12 was held incapable of forming mens rea due to insufficient maturity.
Principle:
Children lack criminal capacity. You don’t analyze the act, you analyze the child’s mental development.
D. Insanity (BNS 22)
(Earlier IPC 84)
Key Case: Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563)
This is the gold standard. The Supreme Court held that once the accused raises insanity as a defence, the burden doesn’t shift entirely, they only need to create reasonable doubt.
Principle:
Insanity must destroy cognitive ability at the time of the act, not before or after.
E. Involuntary Intoxication (BNS 23–24)
(Earlier IPC 85–86)
Key Case: Basdev v. State of Pepsu (AIR 1956 SC 488)
A military officer shot someone during a drunken quarrel. The court held voluntary intoxication does NOT excuse guilt, only involuntary intoxication can negate mens rea.
Principle:
Loss of control due to something you voluntarily consumed is not a defence.
Capacity loss due to involuntary intoxication → excusable.
2. Justifiable Defences (Act-Focused)
Here, the actor is not the point. The court looks at whether the act itself is lawful, necessary, or socially approved. Intent may exist. The act may appear violent. But if it fits within these defences, the law justifies it.
A. Justified by Law / Mistaken Belief that an act is Justified By Law(BNS 17)
(Earlier IPC 79)
Key Case: Chirangi v. State (1952 Cri LJ 1212)
The accused killed his own son believing him to be a tiger. The Supreme Court accepted the defence of mistake of fact and held the act justified.
Principle:
Not excused because of incapacity, justified because the act was right under the perceived factual situation.
B. Judicial Acts (BNS 15–16)
(Earlier IPC 77–78)
Key Principle Case: State of Rajasthan v. Prakash Chand (1998 1 SCC 1)
While not directly under “judicial acts,” it clarifies that judicial officers performing lawful duties get strong protection unless acting with malice.
Principle:
Judicial and quasi-judicial actions done within authority are justified.
C. Necessity (BNS 19)
(Earlier IPC 81)
Key Case: R v. Dudley & Stephens (1884)
Though an English case, Indian courts rely on it heavily. Two sailors killed and ate a cabin boy to survive. Court rejected defence but laid down the modern necessity doctrine.
Indian Position:
Indian courts accept necessity as long as:
harm caused < harm avoided,
the situation is immediate,
no lawful alternative exists
D. Consent (BNS 25–32)
(Earlier IPC 87–94)
Key Case: Bishambher v. Roomal (Allahabad High Court, 1950) The case involved Bishambher, who had allegedly molested a girl and, fearing a furious mob, consented in writing to have his face blackened, head tonsured, and be given a shoe-beating by a local panchayat to avoid harsher punishment. The court ruled that since the actions were performed with the complainant’s written consent and in good faith to prevent greater harm, they were not criminal offenses.
Principle:
Consent must be:
free
informed
from a person capable of giving consent
for acts the law permits
E. Trifling Acts (BNS 33)
(Earlier IPC 95)
(Earlier IPC 95) Key Case: Veeda Menezes v. Yusuf Khan (AIR 1966 SC 1773) SC
clarified what counts as trivial “hurt” and what does not. Genuine minor harms not intended for criminal ends may be ignored.
Principle: Law doesn’t waste time on petty annoyances.
F. Private Defence (BNS 34–44)
(Earlier IPC 96–106)
This is the strongest justification defence.
Key Case 1: Darshan Singh v. State of Punjab (2010 2 SCC 333)
The Supreme Court held:
The right to private defence is a fundamental, natural right. It allows causing death if reasonably necessary. Courts must not expect “weighing of golden scales” in sudden attacks.
Key Case 2: Yogendra Morarji v. State of Gujarat (1980 2 SCC 218)
Private defence applies even if the attacker had no deadly weapon, as long as the danger was reasonable.
Principle: A person facing unlawful aggression can cause harm, even killing, if necessary for self-preservation. The law judges the act, not the prior relationship or intention.
Category | Excusable Defences | Justifiable Defences |
Core Logic | Actor lacked the capacity to form mens rea | Act itself is lawful, necessary, or socially approved |
Focus | On the actor’s mental state, capacity, cognitive ability | On the act’s legality, necessity, justification |
Mens Rea | Absent due to incapacity | Present but overridden by legal necessity or approval |
Blameworthiness | Actor is not blameworthy | Act is not blameworthy |
Legal Philosophy | “You can’t punish someone who couldn’t form intent.” | “You can’t punish someone for doing the right thing.” |
Nature of the Defence | Defect in the actor (capacity failure) | Legitimacy of the act (law approves) |
Burden of Proof Trend | Defence raises reasonable doubt (e.g., insanity, mistake) | Act must show legal justification (private defence, necessity) |
Example to Remember | A child breaks a window → not liable (incapacity) | You break a window to save a trapped child → justified (necessity) |
3. The Clean Philosophical Split
Excusable = actor lacks capacity → no mens rea → not blameworthy
Justifiable = act is lawful / necessary / protective → society approves it.
This distinction is not academic, it is the backbone of how courts evaluate defences.
4. Final Takeaway: The Defence Lives or Dies Based on This Split
Every real-life defence fits into one of these two worlds:
If the actor’s mind was absent, impaired, or incapable → Excusable.
If the act serves law, necessity, consent, or survival → Justifiable.
And courts have consistently upheld this logic for over a century. BNS has reorganised the section numbers, but the jurisprudential foundation is exactly the same. Get the category right and your defence argument becomes precise. Get it wrong and you’re done before you even enter submissions.
Making legal knowledge accessible and understandable for everyone. Expert insights and practical advice for your legal questions.
Making legal knowledge accessible and understandable for everyone. Expert insights and practical advice for your legal questions.
Making legal knowledge accessible and understandable for everyone. Expert insights and practical advice for your legal questions.
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