This section deals with the defence of necessity. When someone does something knowing that the same is likely to cause harm to another, it is not an offence if it is proved that he had done that without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property.
The person claiming this defence must prove that he did not possess any criminal intention to cause harm and that his purpose in good faith was to prevent or avoid other harm to person or property. The use of the word ‘other’ and not ‘greater’ in this section shows that to succeed in this defence, it is not necessary for the accused to prove that he caused smaller harm to prevent or avoid greater harm.
The defence will still be available to him if he proves that he caused harm to prevent or avoid other harm to person or property. The only thing needed to be proved by him is that he acted in good faith without any criminal intention to cause harm. It is natural that it would be very difficult for him to prove good faith if he causes greater harm to prevent or avoid smaller harm. The illustration (a) under this section needs to be seen in this perspective.
The Supreme Court has opined in Veeda Menezes v. Yusuf Khan that the word ‘harm’ used in this section and in sections 87, 88, 89, 91, 92, 93, 95, 100, 104 and 106 of the Code can only mean physical injury.
In the famous English case of Dudley and Stephens, the accused were seamen. Their ship having capsized in a storm they along with a boy, about seventeen years of age, managed to float on a wooden plank. They continued to drift for many days’ without food and drinking water. When death by starvation of the three was almost imminent, they killed the boy and continued to eat his flesh for a few days when they were rescued.
On being prosecuted for murder, they pleaded that self-preservation was the utmost necessity and they had no option except to kill the boy. Both accused were held guilty of murder and their defence of necessity in the form of self-preservation of life was rejected and they were sentenced to death. This sentence was, however, reduced by the Crown to six months’ imprisonment.
The explanation under this section states that the nature and imminence of the harm to be prevented or avoided is such as to justify or excuse the risk of doing the act knowing that harm was likely to result is a question of fact. There cannot be a general law governing this aspect and the facts and circumstances of each case will decide this question.