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Par. 2. These provisions do not apply to the acts specified in Article 5.

Art. 10. A punishment executed abroad shall be deducted from a punishment subsequently imposed for the same offense by the Greek courts.

Art. 11, par. 1. If a Greek national was convicted abroad of an act which entails additional punishment according to Greek law, the Greek court may impose such punishment.

Par. 2. Likewise, the Greek court may impose security measures upon a Greek citizen who has been convicted or acquitted by foreign courts, if such measures are provided for by the Greek law.

BIBLIOGRAPHY

Gafos, Helias. Poinikou Dikaiou (Criminal Law). Thessalonike, Theodozidi,

1948. 440 p. Heliopoulos. Systema tou Hellenikou poinikou dikaiou (System of the Greek

Criminal law). Athens, Delabrammatica, 1930. 613 p. Horafas, Nikolaos. Genikai archai tou poinikou dikaiou (General Principles of

Criminal Law). Athens, Sakkoula, 1962. 368 p. Konstantaras. Hellenikon poinikon dikoiou (Greek Penal Law). Athens, 1946.

463 p.

Moschandreas Hermania tou poinikou kodikos (Interpretation of the Criminal

Code). Athens, 1951. 321 p.
Staikos, Adonios. Hermeneia tou poinkov kodikos (Interpretation of the Crimi.

nal Code). Athens, Fragouli, 1954. 1091 p. Tzortzopoulos, Haralabos. Cusiastikon poinikon dikaiou (Substantive Criminal

Law). Athens, Pyrsos. A.E., 1936. 405 p.

INDIA

1. The Indian Penal Code 1860 1 does not follow the tripartite division, as suggested by the proposed code. However, the Penal Code is divided into twenty three chapters each having grouped into it a number of similar offenses on the same subject. Thus, there is a subject division of the offenses in the Indian Penal Code. A reference to the contents in the attached Xerox copy will show how divisions are made.

Chapter I is formal, relating to the title and extent of operation of the Code. Chapter II contains an explanation of the terms used in the Code while Chapter III has the punishments provided in the Code. Those acts, commission of which constitutes no offense, are given in Chapter IV; abetment and abettor are dealt with in Chapter V, while the shortest Chapter V-A has the punishments for criminal conspiracy. Chapter VI through Chapter XXIII each deal with separate offenses, e.g., offenses against the State; offenses relating to the Army, Navy and Air Force; and offenses against the public tranquility, etc.

2. The Indian Penal Code has a continuous numbering system from section 1 through section 511. There are no blank numbers. Amendments in the future are likely to be either in the form of an addition to a section or by the substitution of a section. In the case of a substitution, the old section disappears from the Code; when a section is added, which is rather rare, a letter is added to the chapter number, e.g., chapter V-A and section 120-A, 120-B. Since the enactment of the Code in 1860, the amendments have been few and far between.

3. The Indian Code has no section corresponding to section 302 (1) of the proposed code. The different kinds of culpability, not separately defined but included within various sections of the code, are intentionally, knowingly, voluntarily, rashly, fraudulently and dishonestly. Of these, the expressions dishonestly, fraudulently and voluntarily are defined in sections 24, 25 and 39 respectively.

The principle of mens rea, as enunciated by the English law, is inapplicable to the Indian law since the Indian Penal Code and each of its sections provide all the ingredients required to be proved for bringing home the guilt of the defendant. According to Mayne: 2

"Every offense is defined, and the definition states not only what the accused must have done, but the state of his mind with regard to the act when he was

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doing it. It must have been done knowingly, voluntarily, fraudulently, diskiem estly, or the like. And when it is stated that the act must be done with a par ticular knowledge or intention, the definition goes on to state what he mi** have known, or what he must have intended."

For instance, theft must be committed dishonestly, cheating must be comm! ted fraudulently, murder must be committed either intentionally or knowing

Every man is presumed to intend the natural consequences of his act :: acts, and intention has to be inferred from the facts and attending circus stances of each case. The Supreme Court of India, in the case of Bhikarit the State of Uttar Pradesh 3 observed as follows:

"The burden of proving an offence is always on the prosecution; it net! shifts. Intention when it is an essential ingredient of an offence, has also to : established by the prosecution. But the state of mind of a person can ordina. ily only be inferred from circumstances."

By virtue of section 32, the expression “act" includes also illegal omissie.

The defendant's state of mind determines the guilt and not the degree guilt or the sentence. All that the prosecution has to do in India is to pr that a particular act committed by the accused answers the various indir. ents of the offense in the particular section of the Indian Penal Code.

4. There is no section in the Indian Penal Code corresponding to section in the proposed draft. Of course, participation of the defendant has to be tablished either alone or jointly with another or others.

Section 39 of the Code defines the expression "voluntarily" which, in fa has reference to causation of effects and not to the doing of the acts 17 which those effects follow. The Indian Code makes no distinction bettiin cases in which a man causes an effect designedly and cases in which he can it knowingly or having reason to believe that he is likely to cause it. If the fect is a probable consequence of the means used by him, he causes it ***?** tarily" whether he really meant to cause it or not. 4

Writing about the causal relationship between the doer and the deed to established, Gour says: 5

“The question whether the effect produced was premeditated or known probable by the author is, therefore, always a question of fact to be 0. minced according to the particular circumstances of each case. But whate the facts, the prosecution have to prove them with sufficient clearness so as establish a causal relationship between the doer and the deed

5. The defense of insanity is contained in section 84 of the Code (Xcopy attached).

There are four kinds of persons who may be said to be non compos me. (not of sound mind) under the defense of insanity in the Indian Code: (1. idiot; (2) one made non compos by illness; (3) a lunatic or a madman; : (4) one who is drunk. Under the section, if a defense of insanity is the lished by a defendant, he is exonerated from liability for his criminal act. no provision is made in the Code for giving him medical care.

(1) An idiot is one who is of non-sane memory from his birth, hy a per ual infirmity and without lucid interval. Those are said to be idiots wb not count twenty, or tell the days of the week, or who do not know their ther or mothers, or the like.

(2) A person made non compos mentis by illness is excused in crir: cases from such acts as are committed by him while under the influence on disorder. Several causes may be assigned to the disorder; sometimes from distemper of the humours of the body; sometimes from the violence of a ease, as a ferer; sometimes from a concussion or harm to the brain; and . is more or less violent, it is distinguishable in kind or degree, from total s ation of the mind, or from complete madness.

(3) A lunatic is one who is, as described by English writers, a flicte! mental disorder only at certain periods and vicissitudes, having interra'. reason. Such persons during their frenzy are criminally as irresponsik: those whose disorder is fixed and permanent.

(4) Insanity as a defense to criminal conduct, when caused by drunker. is as much a defense for exoneration as lunacy, etc. Insanity by drunker in fact operates in this section as an exception to the rule contained in

3 [1956] All India Rptr., Supreme Court 488, 490.
* Rattan Lal & Dhiraj Lal. The Law of Crimes 71 (1971).
• Dr. Sir Hari Sigh Gour, The Penal Law of India 279 (8th ed. 1966).

85 of the Indian Code. Section 85 says drunkenness when voluntary will not be a defense to any criminal act of a defendant. However, under section 84 herein, if drunkenness causes a disease which produces such incapacity as to result in the defendant's mind failing to appreciate his actions, the defense of insanity by drunkenness, even though voluntary, is provided to the defendant. Such drunkenness creates intemperance as to lead to a total deprivation of self-control, or creation of delusions, as in delirium tremens. Insanity in such cases may have been caused by any means such as excessive drinking, habitual drinking, drugs, etc. It remains a question of fact for determination in each case.

The defendant must establish insanity and to obtain acquittal he must not only prove insanity but also the additional fact that at the time of the commission of the act, he was, in consequence of the insanity, incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. This principle, adopted by the law, was based on the well known McNaughten case.6

A plea of insanity under the Indian Code entitles the defendant to acquittal. As for the burden of proof, the onus on prosecution is to prove guilt beyond a reasonable doubt and it is then for the defendant to establish, by adducing evidence, his defense of insanity. Under section 45 of the Indian Evidence Act 1872,7 the opinion of an expert will be relevant in determining the question of the insanity of a defendant. Though such an opinion is neither conclusive nor binding on the court, it cannot be brushed aside lightly. The defendant's onus in proving his insanity plea is not as heavy as that of the prosecution to prove guilt since the burden is light and no more than the requirement in civil matters of proving the probabilities of the insanity. For onus of proof the Supreme Court of India in the case of Bhikari v. The State of Uttar Pradesh 8 observed as follows:

"The burden of proving an offence is always on the prosecution; it never shifts. Intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. For example, if a person deliberately strikes another with a deadly weapon, which according to the common experience of mankind is likely to cause an injury and sometimes even a fatal injury depending upon the nature of the weapon and the part of the body on which it is struck, it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury which in fact resulted from the act. In such a case the prosecution must be deemed to have discharged the burden resting upon it to establish an essential ingredient of the offence, namely the intention of the accused inflicting a blow with a deadly weapon.

“Section 84, Penal Code, can be invoked by the accused for nullifying the evidence produced by the prosecution. This he can do by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The prosecution need not establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. It is for this reason that S. 105 of the Evidence Act places upon the accused person the burden of proving the exception relied upon by him."

As is evident from reasoning in the aforesaid decision, the Court does not attempt to prove the defense of the defendant by calling a psychiatrist on its own for an examination. It is not for the courts to assist the defendant or make up for his deficiencies in ascertaining the plea of insanity by calling its own witnesses.

6. The law with regard to intoxication as a defense, though not similarly worded as section 503 of the proposed draft is included in section 84 of the Indian Penal Code. Section 502 of the proposed code corresponds to section 85 read with 86 of the Indian Penal Code.

• 4 State Trials (N.S.) 847 (Central Criminal Court 1843).
: IV India Code, Government of India, Ministry of Law, Delhi, 1965.
372 Indla Crim. L.J.R. 63, 65 (1965).

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Under the Indian law, voluntarily getting intoxicated and then committing a crime would be no defense to criminal conduct. However, where such voluntary intoxication created a failure of the mind to discriminate between lawful conduct and criminal conduct, intoxication even though voluntary would operate as a defense of insanity provided the moment of insanity coincided with actual criminality. In certain cases drunkenness produces a frenzy of madness and it is then only when the mind gets diseased (as in the case of most habitual addicts) that drunkenness affords the defense of insanity.

Sections 85 and 86 crystallize the law relating to intoxication or drunkenness as a defense or plea in mitigation of a criminal offense. Section 85 gives the same protection as section 84 does to a person of unsound mind, who is by reason of intoxication "incapable” 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 without his knowledge or against his will. A person who gets into a state of intoxication voluntarily is, under section 86, presumed to have the same knowledge as he would have had if he had not been intoxicated, when the state of intoxication is such as to make him incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law, he can only be punished on the basis of knowledge and not for any particular intention.

The foundation of the law in sections 85 and 86 is based on the principle that criminal liability follows criminal intention and that a person who is drunk is in the same predicament as a person temporarily insane. Indeed, such a state has been termed dementia offectata-a form of lunacy in which the functions of the mind are temporarily suspended. But since no man can be permitted to wear the cloak of immunity by getting drunk, the rule justly excludes cases of voluntary drunkenness. But while such drunkenness is never a defense to a crime, it is relevant in determining the question of intention and for that purpose it is permissible to prove as a defense that the prisoner was suffering from a habitual and fixed frenzy brought on by drunkenness.

The Supreme Court of India is summing up the law on the subject in the case of Basdev v. The State of Pepsu 9 observed as follows:

“So far as knowledge is concerned the court must attribute to the intoxi. cated man the same knowledge as if he was quite sober but so far as intent or intention is concerned, the court must gather it from the attending circumstances of the case paying due regard to the degree of intoxication. If the man was beside his mind altogether for the time being, it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking and from the facts it could be found that he knew what he was about the court will apply the rule that a man is presumed to intend the natural consequence of his act or acts.”

The rule of law is well settled :

"1. That insanity, whether produced by drunkeness or otherwise, is a defence to the crime charged ;

*2. The evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent;

"3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.”

7. Right of self-defense is known as the right of private defense under the Indian law. The law with regard to the private defense of the body and other persons, and defense of property is contained in sections 96 to 106 of the Indian Penal Code (kindly refer to Xerox copy). Limits of the right are contained in sections 97 and 99; the extent of right in sections 100, 101, 103, 104 and 106; and the commencement and continuance are dealt with by section 105.

The first clause of section 97 provides for the defense of the body, one's own or of any other person, irrespective of any relationship, against any offense affecting the human body. The second clause provides for the defense of prop

• (1956) India S. Ct. 363.

erty against an act which amounts to the commission of certain offenses involving theft, robbery, mischief or criminal trespass, or attempted theft, robbery, mischief or criminal trespass under the Indian Penal Code. So that in matters of self defense, one may do for himself as he may do for anyone else under similar circumstances. This right is not dependent upon the actual criminality of the person resisted; it depends solely on the wrongful or apparently wrongful character of the act attempted. It is lawful to kill a lunatic who attacks a man, though the lunatic is not punishable for the act under section 98. If the apprehension is real and reasonable, it makes no difference that it is mistaken. It is even lawful under section 106 to run the risk of injuring an innocent person, where that risk is inseparable from the proper exercise of the right of resisting a criminal act.

Section 98 states that for the purpose of exercising the right of self defense, physical or mental capacity of the person against whom the right is exercised is no bar. In other words, the right of defense of the body exists against all attackers—whether with or without mens rea. The two statutory illustrations within the section itself further elaborate the explanation.

Section 99 states two acts against which the right of private defense of the body cannot be exercised. There is no right of private defense of the body :

(a) Against an act which does not reasonably cause the apprehension of death or of grievous hurt if done, or attempted to be done, by (or by the direction of) a public servant acting in good faith under color of his office, though that act (or direction) may not be strictly justifiable by law.

By virtue of explanation 1, such defense will prevail if the person exercising it did not know nor have any reason to believe that the attacker was such a public servant.

The right of private defense will also prevail when the act is done by the direction of a public servant who does not state his authority for so acting, when it is so demanded. This is evident from explanation 2 of the section.

The right of private defense against a public servant can be exercised in the following cases :

(i) when the act of the public servant reasonably causes apprehension of death or grevious hurt;

(ii) when the public servant does not act in good faith under color of his office;

(iii) when the person exercising the right does not know or have any reason to believe that the attacker is a public servant or acts by the direction of a public servant.

(b) There is no right of private defense of the body in cases in which there is time to have recourse to the protection of the public authorities.

Section 99 then proceeds to prescribe the extent to which the right of private defense of the body may be exercised. It says:

“The right of private defence of the body in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence."

Thus, the measure of the right of private defense of the body must be judged in proportion to the force used by the attacker. In the case of Mammun & others v. Emperor 10 the defendants, five in number, went out on a moonlit night armed with clubs and assaulted a man who was cutting rice in their field in such a manner that he received six distinct wounds and he died on the spot. The defendants pleaded the right of private defense and defense of property. It was held that the defendants failed in their duty to have recourse to the protection of public authorities when there was time for the same and moreover the force used by the defendants was disproportionate to the force necessary to counter the attack.

Section 102 says the right begins as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offense, though the offense may not have been committed. The right continues so long as such apprehension of danger to the body continues.

Section 100 gives the extent to which the right of private defense of the body can be extended to the causing of the death of the assailant. There are seven situations when the defendant has a right to cause the death of the assailant. They are: When the assailant causes reasonable apprehension of (i)

10 18 India Crim. L.J.R. 367 (1917).

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