Punishment for Honest Mistake
The law allows a lot of leeway
Event 1: A boy of 15 is offered a choice of presents. An Agfa camera or a Diana air rifle. The father prudently advises against the camera, photography being an expensive hobby. It is early 1957. One day, the boy wants to discharge the only pellet in the gun. He casually aims it at a metal corrugated door. He fires. The bullet ricochets and hits the father, standing next to the boy, in the chest. Fortunately, little damage is done: except a ‘birth-mark’. The father sets the boy down and tells him a story.
Event 2: This is his story. A kid of 10 years, son of the father’s friend, was fond of the game of darts. Innocent fun. The board was hung on a door curtain, separating two rooms in the home. One day, the boy throws a dart. His sister, entering the room, shifts the curtain. The dart penetrates her eye. She is blinded, in that eye, for life.
Event 3: A world-renowned athlete deified for his disability, a grown-up man, fires his high-powered rifle into a closed bathroom door, of his own home. The gun is aimed at the toilet. The shots kill his girlfriend. He claimed that he thought his girlfriend was in bed at the time and he mistook her for an intruder. The trial court finds him guilty of culpable homicide. It means death without intent to kill. Minimal punishment.
You be the judge.
Event 1 saw, thankfully, small damage. Moreover, the law was not as developed then as it is now. Event 2, the kid was too young to foresee the danger, though his parents should have. Family matter; end of story.
Event 3 saw ups and downs. In an appeal preferred by the South African state, the man is convicted of murder. The verdict hinged on the ‘Doctrine of Intent’, in the form of dolus eventualis, or manifest intention, or reasonable knowledge, that an action would have necessary consequences. The law allows one to protect his life and property; but not rashly. The reaction to the threat needs be measured. It must be just enough to protect oneself, disarm the aggressor or neutralise the threat. Here, one is reminded of Gilbert & Sullivan’s ‘Mikado’. It has a delightful piece called ‘Let the punishment fit the crime’. In the same way, let the response suit the danger. No more. Shooting several times, through a locked door, not stopping on hearing screams, is definitely an over-reaction, even to a supposedly perceived threat. 
 “A man’s home is his castle. He can, and must, protect it with any means at his disposal.” Brave words, quoted by many. Yet, bravado must not blinker sense. To be sure, the time between threat and response is, often, a micro second. Reflexes outrun rational thought. One shoots first and asks questions later. That could lead to trouble. 
What should a person do under such difficult circumstances? Unfortunately, there is no formula; there never will be. The normal answer, to a sudden fraught situation, is reaction. If attacked, an unarmed man will raise his hand in self-defence. He may take shelter behind a tree or a wall or under a table. He may turn about and run, if the situation permits and he is capable.
Or he may hit back. It’s this hitting back, and the intensity of the counter-attack, that weighs in court. And, if the defendant is proved to be short of temper or prone to aggression, the scale will not tilt in his favour. 
The law distinctly allows for a genuine mistake. It also allows for an exaggeration of the threat, if it is unseen or unfathomable. If the attack is in the dead of night, one cannot gauge the danger. Is the attacker bare-handed or armed? If armed, does he have a gun or a knife? Is he alone or with someone? Or are there many? Thought, at the speed of light, may be too slow. Quicksilver response is the need of the hour; rather, of the split second. Preservation is the overwhelming emotion. In such cases, the court understands. 
A word of caution, though. Do not take the court for granted.
(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])
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