lowest punishment is provided if the same punishment is not provided for all1. confine 73. Whenever any person is convicted of an offence for Solitary which under this Code the Court has power to sentence him to ment. rigorous imprisonment 2, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say— A time not exceeding one month if the term of imprisonment shall not exceed six months. A time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year. A time not exceeding three months if the term of imprisonment shall exceed one year. 74. In executing a sentence of solitary confinement, such Limit of confinement shall in no case exceed fourteen days at a time, confinesolitary with intervals between the periods of solitary confinement of ment. not less duration than such periods; and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods 3. 75. Whoever, having been convicted of an offence punish- Second The following are illustrations of this section: (a) A is charged with a simple assault on Z, with assaulting her with intent to wound her and with assaulting her with intent to rape her. It is clear on the evidence that he is guilty of one of these offences: but it is doubtful of which. A must be punished for the simple assault. (b) It is clear on the evidence that either A or B murdered Z, and that whichever was the murderer was aided by the other in the commission of the offence: but it is impossible to ascertain which committed the murder and which aided the commission. The punishment for both these offences is the same, and both A and B are liable to that punishment (M. & M. 51). (c) A is charged with giving false statements on oath or solemn affirma- offence years' im ment against 1 3 punishable able under chapter XII or chapter XVII of this Code" with three with imprisonment of either description for a term of three prison- years or upwards, shall be guilty of any offence punishable under either of those chapters with imprisonment of either coin, description for a term of three years or upwards, shall be property. subject for every such subsequent offence to transportation for life, or to imprisonment of either description for a term which may extend to ten years*. stamps, or The punishment actually awarded for the former offence need not be imprisonment for three years. * The previous convictions here referred to must have been after the Code came into force, 4 Bom, H. C., Cr. Ca. 11, and of offences committed after that time, 4 Suth. Cr. 9; 3 Suth. Cr. 17; and the offender must, according to the Bengal High Court, have undergone his imprisonment for his previous offence, 5 Suth. Cr. 66. But, as Mr. Mayne observes, if a prisoner, in gaol for theft, commits another theft in gaol, it is hard to say why he should not receive an enhanced punishment. If a person who has been convicted of such an offence is convicted of an attempt to commit any such offence, he does not thereby become liable to the enhanced punishment allowed by sec. 75, for attempts are punishable under chap. XXIII, 5 Bom. 140; 3 All. 773. Act X of 1886, sec. 22. Before this Act was passed, in case of an offender convicted (say) of simple theft, when he had been previously convicted of a similar offence, and when the Court considered a sentence of imprisonment for six years is not sufficient, it must either pass an inadequate sentence or else sentence him to transportation for life, which might be more than it considered necessary. For forms of charges alleging previous convictions, see Act X of 1882, Sched. V, No. XXVIII, and 4 Mad. H. C. Rulings, x. CHAPTER IV. GENERAL EXCEPTIONS. by one bound, or 76. Nothing is an offence which is done by a person who Act done is, or who by reason of a mistake of fact 2 and not by reason of a mistake of law in good faith believes himself to be, by mistake bound by law to do it. Illustrations. of fact believing himself bound by (a) A, a soldier, fires on a mob by the order of his superior law. officer, in conformity with the commands of the law. A has committed no offence. (b) 4, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence. 4 ing judi 77. Nothing is an offence which is done by a Judge Act of when acting judicially 5 in the exercise of any power which Judge actis, or which in good faith he believes to be, given to him cially. by law. order of 78. Nothing which is done in pursuance of, or which is Act done warranted by the judgment or order of a Court of Justice, pursuant to judgif done whilst such judgment or order remains in force, is ment or an offence, notwithstanding the Court may have had no juris- Court. diction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction. 79. Nothing is an offence which is done by any person Act done who is justified by law, or who by reason of a mistake of fact by one Sec. 19. justified, or by mis- and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it. take of fact believing himself justified by law. Accident in doing Illustration. A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence. 80. Nothing is an offence which is done by accident or lawful act. misfortune, and without any criminal intention or knowledge in the doing of a lawful act1 in a lawful manner, by lawful means, and with proper care and caution 2. to cause Illustration. A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence3. Act likely 81. Nothing is an offence merely by reason of its being harm, but done with the knowledge that it is likely to cause harm, if it done with be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. out cri minal intent, and to prevent otherharm. Explanation. It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. Illustrations. (a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat, B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat, C, with only two passengers on board, which he may possibly clear. Here, if 4 alters 1 An act lawful by the general law of the land, M. & M. 58, not a private right: see Cooper v. Phibbs, L. R. 2 H. L. 170, per Lord Westbury. 2 i. e. that degree of care and attention which a man of ordinary prudence and activity employs in his daily occupations. 8 This illustration assumes the absence of criminal intention or knowledge in working with the hatchet. Other illustrations of sec. 80 are: A undertakes to treat Z for a dangerous disease. A has no skill or knowledge of medicine to justify him in doing so. Z dies of the disease. A cannot plead this section. A flogs his child Z immoderately, or with a cat-o'-nine-tails, and Z dies of the flogging. Here, though A might lawfully have administered reasonable correction to Z, with a proper instrument, he cannot plead this section. his course without any intention to run down the boat C, and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C. (6) 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. child un 82. Nothing is an offence which is done by a child under Act of years of age. seven der 7 years. child above 7 and under 83. Nothing is an offence which is done by a child above Act of seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature 12. consequence of his conduct on that occasion 1. and unsound 84. Nothing is an offence which is done by a person who, Act of at the time of doing it, by reason of unsoundness of mind, is person of incapable of knowing the nature of the act, or that he is mind. doing what is either wrong or contrary to law 2. tary in 85. Nothing is an offence which is done by a person who, Involunat the time of doing it, is, by reason of intoxication, incapable toxication. of knowing the nature of the act, or that he is doing what is either wrong or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will 3. 86. In cases where an act done is not an offence unless Offence re done with a particular knowledge or intent, a person who quiring particular does the act in a state of intoxication shall be liable to be intent or 1 Suth. Cr. 43. As to punishing juvenile offenders (i. e. males under 16) with whipping in lieu of any other punishment to which they may be liable, see Act VI of 1864 (the Whipping Act), sec. 5; supra, P. 107. 24, a Hindu, sacrifices his child to Mahadeva because wealth did not accompany its birth, in the belief that the child would be restored to life and that wealth would simultaneously accrue to 4. Here, though there may have been religious hallucination, there is nothing to show the incapacity mentioned in sec. 84. 3 Drunkenness does not aggravate know |