Indian penal code- law of crimes full notes

NATURE & DEFINITION OF CRIME Every State should have an efficient system of penal laws in order to discharge its primary function of keeping peace in the land by maintaining law and order. Penal law is an instrument of social control which authorizes the infliction of state punishment on undesired and harmful human conduct. It supplies a pragmatic reason for not doing harmful acts and punishes the perpetrators of those acts. Professor Wechsler has remarked “ this is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. …If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works gross injustice to those caught within its coils. The law that carries that such responsibilities should surely be as rational and just as law can be.”

Salmond defined a crime as an act deemed by law to be harmful for society as a whole although its immediate victim may be an individual. Sir William Blackstone has defined crime as an act committed or omitted in violation of public law forbidding or commanding it. John Austin has defined crime in the words “A wrong which is pursued by the sovereign or his subordinates is a crime. A wrong which is pursued at the discretion of injured party and his representatives is a civil injury. Professor Kenny has defined Crime as wrongs whose sanction is punitive and is no way remissible by any private person but is remissible by the Crown alone, if remissible at all. Halsbury’s Law of England defines crime as an unlawful act or default which is an offence against the public and renders the person guilty liable to legal punishment.

Section 40 of IPC defines an offence as a thing made punishable by this Code or under any special or local law. According to the Supreme Court, crime is a revolt against the whole society and an attack on the civilization of the day. It is very difficult to give a correct and precise definition to crime. This difficulty arises due to the changing nature of crime. What is crime varies according to cultures, social values and beliefs, and ideology of the ruling social-political power. Professor Kenny observes that “Any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as endangering its safety, stability or comfort, it usually regards as heinous and seeks to repress it…. Crimes therefore originate in government policy of the state…so long as crimes continue to be created by government policy the nature of crime will elude true definition.”

Only political power of the day decides what a crime is. The purpose of criminal law is to express a formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it. Sociologists like Roscoe Pound perceive crime as a social phenomenon and consider criminal law as protecting certain social interests. Ex; interests in general safety, peace and public order, interest in conservation of social resources, interest is security of social institutions etc. Any act which threatens or poses threat to realisation of these interests is considered as a crime. The most precise and least ambiguous definition of crime is that which defines it as behaviour which is prohibited by the Criminal Code. An act or omission, no matter what the degree of immorality, reprehensible or indecent, does not amount to a crime unless it is prohibited by penal law. Ordinarly , a crime is a wrong which affects the security and well being of the public generally so that public has an interest in suppressing it.

Crime and Tort – Differences Tort is a wrongful act committed against an individual. The remedy lies in the Civil Court. Crime is a wrongful act committed not only against an individual but also against the public. The State prosecutes the wrong-doer. In tort the relief awarded to the person is damages. In criminal law the person who committed the offence is punished. The punishment may be corporal or monetary. Unlike torts Crimes are not generally remissible by private persons unless law allows the same. Criminal Law and Ethics Law is concerned with relationships between individuals rather than with individual excellence. Ethics deal with absolute ideal whereas positive law is concerned with current public opinion. A’s neighbour is dying of starvation. A’s granary is full. There is no law that requires A to help him.

ELEMENTS OF CRIME The fundamental principle of criminal liability is that there must be a wrongful act – Actus reus combined with a wrongful intention – Mens rea . “ Actus non facit reum nisi mens sit rea ” The above maxim means that ‘ an act alone does not make one guilty unless the mind is also legally blameworthy .’ Similarly mere actus reus ceases to be a crime as it lacks mens rea . Actus reus represents the physical aspect of the crime and mens rea , its mental aspect. Actus reus has been defines as such result of human conduct as the law seeks to prevent. Mens rea implies blameworthy mental condition or ‘mind at fault’ and covers a wide range of mental states and conditions. No act is per se criminal; it becomes a crime only when the actor does it with guilty mind.

No external conduct, howsoever serious in its consequences, is generally punished unless the prohibited consequence is produced by some wrongful intent, fault or mens rea . Actus reus connotes an overt act, the physical result of human conduct. It is different from the act which produced the result. Every Crime which is legally specified and defined, generally involves the combined presence of both actus reus and mens rea . In a murder case the victim’s death is the event which is the actus reus . The death or the actus reus was probably caused by firing of the gun, which is the conduct which produced the result. The vicious intention to cause the actus reus ie death, is called mens rea . However harmful or painful an event may be it is not actus reus unless the criminal law forbids it. In other words, the act must be one that is prohibited by law

ACTUS REUS Actus reus includes all the external circumstances and consequences specified in law as constituting the forbidden situation. Act or omission can lead to injury or a consequence or event. This event or consequence is called ‘ actus reus .’ A person is liable for causing that event which law forbids. The requirements of actus reus varies depending on the definition of the crime. Actus reus may be with reference to place, fact, time, person, consent, state of mind of victim, possession or even mere preparation. For ex; Place – In Criminal trespass or House Breaking actus reus is in respect of place Time – In House breaking by night or in lurking House-trespass by night the actus reus is in respect of time Person – In the offence of kidnapping the actus reus is in respect of the person

Consent – In the offence of rape, consent is the actus reus . Possession – In the offence of possession of stolen property the actus reus is in respect of possession Preparation – Section 399 IPC, makes preparation to commit dacoity an offence An act means a conscious or willed movement. It is a conduct which results from the operation of the will. It is only a voluntary act that leads to an offence. An Act on the part of the accused which is beyond the control of his mind is called an involuntary act. This situation is called automatism. Common examples of automatism are somnambulism, epilepsy, hypoglycemia etc. Section 32 makes it clear that the word act refer to illegal omissions also and Section 33 provides that the word act can mean a series of acts .

IPC makes punishable omissions, provided they are illegal. Illegal is defined in Section 43 IPC. An illegal omission would apply to omissions of everything which a person is legally bound to do. For ex, a Father or Mother of a Child below 12 years of age would be liable for culpable homicide if the child dies as a result of abandonment of the Child. An act of omission attracts criminal liability only when a person is placed under duty to act recognized by the Criminal law and he with the requisite blameworthy mind, failed to fulfill it. Such legal duties might arise out of relationship or contracts, or might be imposed by statutes. In Om Prakash v State of Punjab Supreme Court held that husbands act of deliberately withholding food to his wife would amount to attempt to murder under Section 307 IPC. Section 36 makes it clear that committing of an offence partly by an act and partly by omission would also constitute the offence.

Section 39 of IPC defines the term voluntaril y. A person is said to have caused an effect voluntarily when the effect is the probable consequence of the act done by him. If a particular effect could have been avoided by due exercise of reasonable care and caution then the effect of the negligent act is said to have been voluntarily caused. The question whether the effect of a particular act was caused voluntarily, is a question of fact, to be determined on the basis of facts and circumstances of each case. In order to create criminal liability it is not sufficient that there is mens rea and an act; however harmful or painful an event may be it is not actus reus unless criminal law forbids it. In other words, the act must be one that is prohibited by law. The causing of actual harm may or may not be a part of actus reus . Offences like treason, forgery, perjury and inchoate or incomplete crimes are per se offences, irrespective of whether they result in harm.

Causation in Criminal Law A man is said to have caused the actus reus of a crime, if that actus would not have occurred without his participation in what was done. Some causal relationship has to be established between his conduct and the prohibited result. Causation is the chain between act or omission and the consequence. The Harm caused must be a direct result of that act. It must be causa causans – the immediate cause, and it is not enough that it may be causa sine qua non – the proximate cause. If the result is too remote and accidental in occurrence, then there is no criminal liability. In Conduct crimes, the very conduct constitutes a crime. However in result crimes the link between conduct and result should be established. A person is liable for all the actions provided the chain of causation is unbroken. Doctrine of causation is based on the principle that a man can only be held liable for the consequences of his action.

Principles of Causation Principle of Reasonable foresight A man is said to intend the natural consequences of his act. Section 39 states that a man is said to have voluntarily caused an effect, if he had reasons to believe that an effect is likely to be caused. Section 300(3) and 300(4) contains this principle. In R v Roberts the accused attacked a woman who was travelling with him in his car. The woman jumped out of the car and in that process hurt herself. The accused was held guilty on the ground that what the woman did was a natural result of the words and actions of assailant. It was also held that if the woman had done something which could not be foreseen by any reasonable man then it would be a voluntary act of the victim and the chain of causation would be considered as broken.

Novus actus interveniens In the course of an incident, another person intervenes. In such an event the question arises whether the person who intervenes in the course of event would absolve the person from the guilt by whose action or omission the event started. In Joginder Singh v State of Punjab the accused were chasing the victim for retaliation. The victim jumped into a well and he died due to drowning. The Supreme Court held that the accused were 15-20 feet away from the victim. There was no evidence to suggest that the accused had drove victim into the well or they had left him no option but to jump into the well. Hence the accused were acquitted off the charges of murder and SC noted that if the accused had left the victim without any option then the result might have been different. In cases where another person has intervened and the latter’s action was the immediate and direct cause of the crime, the

original wrongdoer whose act had merely given rise to the occasion of the act of the criminal, will be absolved from liability. In R v Hilton, the accused was in charge of a steam engine. When he stopped the engine and went away some unauthorised person set the engine in motion, resulting in death of the deceased. The Court held that the death was the consequence of person who set the engine in motion after the prisoner had gone away. The defence of intervention was successful. In R v Horsey the accused set fire to a stack of straw. The deceased was found in the buring flames of straw. It was not clear as to how and when he came there. The accused was also not aware of his presence. It was held that the accused is not liable because the deceased persons intervening act led to his demise.

Principle of Minimal Causation When the death of a person is caused after medical treatment, it cannot be said that the treatment was not proper or inadequate, or had better treatment been given, the death would not have taken place. The intervention of doctor is in the nature of minimum causation and hence his intervention would have played only a minor part, if any in causing death. Section 299 explanation 2 specifically states that if an act causes death, even if death could have been avoided by proper remedies and skilful treatment, the act shall be deemed to have caused death and the person will be criminally liable. In Rewaram v State of Madhya Pradesh , the accused caused multiple injuries to his wife. She was admitted to a hospital where she developed hyperpyrexia. She died days later as a consequence of hyperpyrexia. SC upheld the conviction of husband for murder pointing out that hyperpyrexia was a result

of her debilitated condition. Intervening cause of hyperpyrexia was a direct result of multiple injuries and was not independent or unconnected with serious injuries sustained. In R v Blaue the accused made sexual advances to the victim which she refused. She was stabbed multiple times and was taken to a hospital. She required blood transfusion which she refused as it was against her religious beliefs. Court held the accused liable because the original wound was still an operating cause, and a substantial cause. The death was held to be the result of that wound albeit that some other cause of death was also operating . It was also held that the chain of causation is not broken and the defendants must take their victim as they find them. In R v Holland the defendant gave a cut to the thumb of victim during a fight. The victim failed to take care of the wound and an infection set in. He was asked to ampute his arm which also

he refused. Later he died of infection. It was held by the Court that the accused is liable because he had inflicted the wound without any justification and it made no difference whether the wound was instantly mortal or whether it became the cause of death by reason of the deceased not having adopted the best mode of treatment. Principle of Ordinary hazard Imagine a person who is attacked and has received injuries as a result of attack. While being taken to the hospital, as a result of a motor accident he is killed. In such a situation attacker will not be liable for the death of the person because he did not substantially increase the risk. Being a victim of traffic accident is an ordinary risk of life. The attacker has not increased the victims risk but his attack has only placed the victim in a geographical position, where another agency produced his death. Anyone could die in a traffic accident.

Negligence should be relevant In case of negligence the death should be the direct result of the rash and negligent act. It must be the causa causans – the immediate cause. In Suleman Rahiman v State of Maharashtra the accused while driving a jeep struck the deceased as a result of which he died. The accused had only learners permit. The prosecution argued that accused is guilty of causing death by rash and negligent act. However Court held that there was absolutely no evidence to suggest that the accused had driven the vehicle in a rash and negligent manner. A person could avoid taking a licence for variety of reasons. In the absence of evidence to prove that accused drove the vehicle in a rash and negligent manner, he could not be held liable under Section 304A of IPC. Contributory negligence cannot be pleaded as a defence in criminal law. It does not play a role in the determination of guilt

however it is a mitigating factor which is considered in the determination of sentence. Occasionally, the contributory fault of the victim may be so great that the defendants act is held not to be the imputable cause of harm. In Rv Dalloway, Dalloway was riding a cart along the road. He was not holding onto the reins as he should have done. A child ran out into the road in front of the cart and was killed. Court held Dalloway not liable for causing death by negligence because expert evidence was produced which demonstrated that even if Dalloway had been holding on to the reins tightly, he would not have been able to stop the cart before it collided with and killed the child. In State v Mohammad Yusuf a pedestrian alighted from the jeep, while crossing highway impatiently at night, collided with a two wheeler and died. The accused was not held liable for the event because negligent act of the deceased was the main contributory to the event.

MENS REA Mens rea denotes a blameworthy mental condition. An act becomes a criminal only act when it is done with guilty mind. Actus non facit reum nisi mens sit rea implies act does not make one guilty unless the mind is also guilty. Ordinarily a crime is not committed, if the mind of the person doing the act is innocent. However the requisite state of mind varies from crime to crime. Criminal law believes that every person is born free and has the freedom to live in a free manner. Freedom to act freely also means that every person has the capacity and ability to choose between right and wrong, good and evil. Once a person exercises his free will to do or not to do an act, then he is liable for the consequences of his act. Also if law were to punish persons who acted innocently and who had no intention whatsoever to cause harm, then there would be no public acceptance of the same.

Under IPC Culpable Homicide becomes murder when the act which caused the death is done with the intention of causing death. Similarly the offence of theft would only be attracted when a moveable property is taken away with dishonest intention. Every actus reus has to be accompanied by a guilty mind or mens rea inorder to constitute a crime. Though the word mens rea is not used in IPC its essence is reflected in almost all the provisions of IPC. Guilt in respect of almost all the offences created under IPC is qualified by words like intention, knowledge, dishonestly, fraudulently, maliciously etc. Chapter IV of IPC deals with General Exceptions, wherein acts which otherwise would constitute offences, cease to be so under certain circumstances set out in the Chapter. The Chapter enumerates the circumstances that appear incompatible with the existence of required guilty mind or mens rea and thereby exempts the doers from criminal liability.

Intention A Person clearly intends a consequence if he wants that consequence to follow from his action. Intention is the desire to achieve a cetain purpose. It is the foreknowledge of the act coupled with the desire for it. Intention is difficult to establish by direct evidence, as it requires going into a person’s mind to determine what his intention was. Hence intention is understood from the attendant circumstances of the case and from the actions of the accused. Intention and motive are 2 different things. A motive is something which prompts a person to form an intention. Motive is called the ulterior intent, it is the reason for an action; what impels a person to act such as ambition, envy, fear, jealousy etc. Motive does not affect criminal liability, however it becomes a relevant factor in determination of aggravation or mitigation of sentence. A bad motive cannot be a reason for convicting a person and a good motive cannot be a reason for acquitting a person. Failure to bring on record any evidence regarding

motive does not weaken the prosecution case, though existence of same may strengthen the case. Knowledge Knowledge is awareness on the part of the person concerned of the consequences of the act. In many cases intention and knowledge merge into each other and intention can be presumed from knowledge. In Hyam v Director of Public Prosecutions it was held by House of Lords that a person who did an act without intention to cause death, but who knows that there is a serious risk, that death or grievous bodily harm will ensue from his acts, and still commits those acts deliberately and without lawful excuse, with the intention to expose a potential victim to that risk, can be held liable for murder.

Negligence A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise. It is the failure of the person to act with the standard of care expected of a reasonable or prudent man. A reasonable man in law generally means the law abiding, cautious, and careful person. However unlike in civil cases simple lack of care will not result in criminal liability and in order to attract liability the negligence should be culpable or gross negligence. The only state of mind which is deserving of punishment is that in which there is a deliberate willingness to subject others to harm, which is actually called recklessness. Rashness Rashness is the state of mind of a person who foresees the possible consequences of his conduct but acts without an intention or desire to bring them about. He is just indifferent to the consequences. Tapti Prasad v Emperor

Dishonest Intention Section 24 of IPC defines dishonestly. It says whoever does a thing with the intention of causing wrongful gain to oneself or wrongful loss to another person does the act dishonestly. Wrongful loss and wrongful gain is defined under Section 23 IPC. Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled. Fraudulent intention Section 25 states that a person is said to do a thing fraudulently if he does that thing with the intent to defraud. The expression defraud involves 2 elements namely ,deceit and injury to a person deceived. The injury is something other than economic loss, and it would include any harm whatever caused to any person in body, mind or reputation. A benefit or advantage to the deceiver without any loss to the deceived, will also amount to injury to the deceived.

In G.S.Bansal v Delhi Administration , inorder to obtain back Post Office National Savings certificates, the accused forged the signature of his father. His father had passed away. These certificates were given as security by the deceased person in order to get license for his ration depot, and he had made an application to release them before his demise. Accused maintained that he had not derived any gain or advantage for himself or caused any injury to anyone else by his act. However SC pointed out that the proper way of obtaining the document was to wait for 3 months after the death of the father, and then convince the Post Master General about being the sole heir of the deceased and then receive the money. SC held him liable for forgery by holding that by not waiting for 3 months and by avoiding the risk of refusal from the part of Post Master General he has secured an uneconomic advantage, which implied, he had obtained the documents fraudulently.

STRICT LIABILITY The necessity for mens rea has been dispensed with in respect of social or public welfare legislations. These are laws which are different from maintaining peace and order in the society. All these laws have been enacted for the larger good of the society. In R v Prince , the accused took away a girl below the age of 16 after the girl had told the accused that she was 18. In the statute there was no element of mens rea as an element of crime. Court held that what he intended to do was an inherently immoral act and his honest and reasonable belief would not save him. Intention of the legislature sufficiently appears to have been to punish the abduction, unless the girl, in fact, was of such an age as to make her consent an excuse, irrespective of whether he knew her to be too young to give an effectual consent. In R v Tolson , the defendant was convicted for the offence of bigamy for having gone through a marriage within 7 years after

she had been deserted by her husband. It was found out that at the time of marriage she had a honest and reasonable belief on the death of her husband. The House of Lords held that Section should be construed in accordance with the well-known principle of English criminal law that in order to constitute crime there must be a mens rea , or guilty intention. In the present case, the Court held the language of the section is not such as to indicate that a mens rea is not essential to the crime of bigamy. The proviso of the section provides a wider exception than the general exception of mens rea , which would come into operation after 7 years of desertion. It was held that a bonâ fide belief on reasonable grounds in the death of the husband at the time of the second marriage afforded a good defence to the indictment, and that the conviction was wrong. In Sherras v De Rutzen , the defendant was held liable for

selling liquor to a police constable who was on duty. Section 16(2) of the Licencing Act which prohibited such conduct did not mention anything about mens rea . The appeal was allowed and conviction was quashed. Court held that “ there is a presumption that mens rea , an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals.” The conviction was quashed on the ground that unless guilty mind is required, no amount of care on the part of publican can save him from conviction. Court held that it would be as easy for the constable to deny that he was on duty when asked, or to produce a forged permission from his superior officer, or to remove his armlet before entering the public house. In S.Varadarajan v State of Madras appellant was charged

Section 363 IPC. The girl was on the verge attaining majority when she abandoned the guardianship of her parents. Section 361 defines kidnapping from lawful guardianship as “ whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” Supreme Court pointed out that there is nothing on evidence to show that the girl had left the house of her father at the instance or even a suggestion of the appellant. She was not made to accompany the appellant by any threat or blandishments. The girl accompanied him willingly out of her desire to live as his wife. Law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. Appellant was acquitted since he had not induced the girl and had no role in formation of the intention to leave the house.

In State of Maharashtra v M H George the Reserve Bank of India issued a notification on 24 November 1962 placing restrictions on the transit of such gold to a place outside the territory of India, one of them being that such gold should be declared in the "Manifest" for transit. The respondent started his journey on 27 november and was travelling from Zurich to Manilla via Bombay. He was carrying 34 kilograms of gold and at Bombay airport Customs authorities arrested him for violating the notification. Magistrate found him guilty, but High Court reversed the decision and the matter came before Supreme Court. It was argued on behalf of the respondent that, he was not aware of notification by Reserve Bank hence he cannot be punished due to lack of mens rea . However, the Court held that besides the mere act of voluntarily bringing gold into India, any further mental condition or mens rea was not necessary considering the language of the Act.

Further, it was also held by Court that the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if a condition of mens rea is read into the words of the enactment. It was also held that Courts has to presume requirement of Mens rea for imposing criminal liability, unless a statute, expressly or be necessary implication, excludes mens rea .” In Nathulal v State of MP the appellant was convicted under Section 7 of Essential Commodities Act for stoking wheat without necessary license. Appellant pleaded that he was under the bonafide belief that a licence would be granted to him and that is the reason why he stored grains after applying for a licence . The Supreme Court after going through the relevant statutory provisions held that the object of the Act would not be defeated if mens rea is read as an ingredient of the offence.

It also held that “ Mens rea is an essential ingredient of a criminal offence, unless the statute expressly or by necessary implication, excluded mens rea . The mere fact that the object of the statute is to promote welfare activities or to suppress a grave social evil is by itself not decisive of the question whether element of guilty mind is excluded or not. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear the implementation of the object of the statute would otherwise be defeated. ” The Court acquitted the appellant of all charges and allowed his appeal. The necessity for mens rea has been dispensed with in respect of social or public welfare legislations enacted for larger good of the society. Courts in order to ensure that public at large is not put to risk has enacted strict liability offences in Prevention of Food Adulteration Act, Protection of Civil Rights Act, Contempt of Courts Act, SC & ST (Prevention of Atrocities) Act.

The necessity for mens rea has been dispensed with in respect of social or public welfare legislations. The Conviction for committing these public welfare offences does not attach to itself the kind of social stigma and damage to reputation that a conviction under IPC would attract. In determining whether a statutory provision does or does not create an offence of strict liability the following considerations are relevant: a) the phraseology of statutory provision b) object of the statute c) nature of the public purpose and d) nature of mischief at which the statute is aimed.

VICARIOUS LIABILITY The principle of vicarious liability, which plays an important role in torts is not extended to criminal law. However, there are 2 exceptions to this rule in English common law: a) A master is vicariously liable for libel published by his servant. b) A master is vicariously responsible for public nuisance committed by his servant. The maxim qui facit per alium facit per se is not a doctrine of criminal law. A master is punishable under criminal law for acts of his servants, only where it is proved that he has instigated or otherwise abetted the acts of the person who committed the crime. However there are exceptions to the general rule that a master is not criminally liable for the acts of his servants. A) Liability under Statute It is within the power of the legislature to make certain act or omission penal and fix strict liability upon a person. In such cases the acts or defaults of the servant or the agent in

ordinary course of employment may make the master or principal employer criminally liable, although the he was not aware of acts or defaults and even where they were against his orders. However such liability must be specifically imposed by the terms of the statute or at least the fact of implied liability must be sufficiently discernible from the provisions of the statute. In Sarjoo Prasad v State of UP the appellant was an employee of a seller of edible oils. Both the employer and employee were prosecuted for selling adulterated mustard oil. The Court held that “ the intention of the Legislature is plain. Every person, be he an employer or an agent is prohibited from selling adulterated food and infringement of the prohibition is by s. 16 penalised .” The Court also went on to hold that if the owner of the shop is punishable without mens rea , the employee can also be punished without a guilty state of mind.

B) Liability of Licensees A licensee is responsible for the acts of his employee done within the scope of his authority, although, contrary to the instructions of the licensee. In order to fix a licensee with a liability for the acts of his servants, personal knowledge of the licensee is not always necessary. In Emperor v Hanmantappa the accused held a licence under Indian Explosives Act 1884 to manufacture gun powder. The servant violating the terms of licence took the raw materials to the house of accused and started manufacturing there. The accused was charged for the explosion which occurred at his house. The accused was held liable because what the servant did was in furtherance of her master’s business and not in pursuance of any purpose of her own. What she was done was within the general scope of her employment and the breach of condition of the licence was committed when she was so engaged.

C) Riot and Unlawful Assembly Indian Penal Code 1860 provides for vicarious liability under Section 154 and 155. As per Section 154, whenever any unlawful assembly or riot takes place in the land of any person, the owner or occupier of the land, or any person having or claiming any interest in the land is criminally liable, if the agent or manager of the owner fails to take necessary action in reporting the matter to the police or fails to use all lawful means to prevent, disperse or suppress the riot or unlawful assembly. Similarly under Section 155, the owner or occupier who has derived any benefit from the riot or for whose benefit it has been carried out is made criminally liable, for failure of his agent or manager to use all lawful means to suppress the assembly and dispersing the same. Master is made criminally liable for the acts or omission of his servant. His liability does not depend upon his knowledge

of the riot. The owners and occupiers of land have been invested by law with certain duties, which they are expected to discharge by the virtue of their position as landholders. They are not unconnected with the use of the land and their responsibility is based upon the assumption that as land holders, they possess the power of preventing the gathering of men upon their land. D) Negligence in performance of duty Where a person is under a duty to perform an act, which is likely to cause dangerous results, does not perform it himself, but entrusts it to some unskillful hands, as a result of which there is a loss of life or some injury is caused, he may be criminally liable for the same.

Corporate Criminal Liability Section 11 of IPC defines persons. It says the word person includes corporations, associations or any body of persons whether incorporated or not. It was earlier believed that a corporation cannot be made liable for criminal offences like a natural person since it lacked physical body and mind. In the case of Ananth Bandu v Corporation of Calcutta, Calcutta High Court made it clear that a company is not outside purview of criminal law. However the Court held that when only imprisonment is prescribed as punishment, Company cannot be prosecuted against since it is physically impossible to imprison a company. This decision is in tone with the principle lex non legit ad impossibilia , which means law does not compel doing of impossibilites .

Originally it was believed that a Corporation cannot be charged of offences because due to lack of physical body, it cannot be arrested or compelled to remain present during criminal proceedings. It lacked mind and hence could not form the necessary mens rea and no bodily punishment could be inflicted upon it. At a later point of time Courts began to hold Corporations liable for offences that did not require mental element. In Queen v Great North of England Railway Co it was held Corporations could be held liable for misfeasance. The liability was fixed during the doctrine of respondent superior. In State of Maharashtra v Syndicate Transport Co ltd Court made it clear that for offences resulting in imprisonment as punishment, a trial cannot be instituted against a company since no effective order by way of sentence can be passed. In Assistant Commissioner v Velliappa Textiles it was held that Company could not be prosecuted for offences involving a sum

Rs One Lakh or more because above one lakh imprisonment was mandatory. But for a sum which is less than Rs One lakh discretion was there with the Court to grant either fine or imprisonment. In Standard Chartered Bank v Directorate of Enforcement the Supreme Court held that a Company can be imposed with fine irrespective of the fact that mandatory imprisonment is prescribed. Court clarified that the legislative intent behind FERA was to punish Corporations and never intended to remove Corporations from criminal liabilities. Court also pointed out that when 2 punishments are prescribed for the same offence, the intention of the legislature is to impose them to the extent possible and it is not to exonerate any person from liability. Nowadays Corporations are held liable for Mens rea offences by way of alter ego theory or identification theory.

In Lennards Carrying Co v Asiatic Petroleum Co ltd the alter ego theory was explained. Board of Directors act as the directing mind and will of the Corporation. Board of Directors are brains of the Company which is the body and Company can and does act only through them. A Corporation can be held criminally liable for committing an offence by a person who at the relevant time was the directing mind and will of the Corporation. In Tesco v Nattrass the test was further explained. It was held a Corporation must act through a person, and such a person is not acting for the company but he is acting as the company. He is acting as the company and his mind which directs his acts directs the company. Court held a company cannot be held liable for the actions of a branch manager and it can be held liable for actions of senior officials who are the directing minds of the company.

In Iridium India Telecom ltd v Motorola Inc, complainant was Iridium India Telecom who had invested in a telecommunication project by Motorola Inc which turned out to be a failure. The complaint was made under Section 120(b) and Section 420. Criminal proceedings were quashed by Bombay High Court under Section 482 Crpc . Supreme Court held that a Corporation can be prosecuted for offences involving Mens rea and it adopted the directing mind and will test used in UK to determine whose Mens rea is to be considered as Company’s Mens rea .

JURISDICTION UNDER IPC The criminal courts in India exercise jurisdiction either because a crime is committed by any person, national or foreigner within the Indian territory or because a crime though committed outside or beyond the territory of India, is committed by an Indian national. The former is called intra-territorial jurisdiction and the latter is called extra-territorial jurisdiction . Section 2 of the Code deals with intra-territorial jurisdiction of Courts. According to Section 2 the Code applies to every person in any part of India for every act or omission contrary to the provisions of the Code. The words “ every person” under this section means and includes a citizen of India as well as a non-citizen. Any person irrespective of his nationality, rank, caste, or creed is triable by Indian Courts provided the offences with which he has been charged have been committed on any part of Indian territory. Any foreigner who enters the Indian territories accepts the protection of Indian laws, and submits to

the operation of the laws and to the jurisdiction of the Courts. A foreigner cannot be allowed to plead that he did not know that the act he was doing was wrong, because of the act not being an offence in his own country. In R v Esop a person, native of Baghdad was charged for committing an unnatural offence on board an East Indian ship, lying in St.Katherine ’ dock. The act would not have been an offence in his home country. It was held that he was guilty of the offence and the fact that the act would not have amounted to an offence in his own country could not be admitted as a legal defence if his act constituted an offence in India. In Mobarak Ali Ahmed v State of Bombay the SC clarified that the basis of jurisdiction under Section 2 is the locality where the offence is committed and that the corporeal presence of offender in India is immaterial. In this case a Pakistani national, while staying at Karachi made false representations through letters, telephone conversations and telegrams to the complainant in Bombay and induced the latter

to part with money. The accused was prosecuted for cheating. SC held that even though accused was a Pakistani national at the time of the commission of the offence, he must be held guilty and punished under IPC, notwithstanding his not being corporeally present in India at the time. While under the Code there are no exceptions to the jurisdiction in favour of any person, certain persons are immune either by virtue of the provisions of the Constitution or under the law of civilised nations of the world. i ) Foreign Sovereigns - It is common understanding that between nations that one sovereign cannot be subject to law of the other. Sovereignity admits of no superior, therefore it would be incompatible with the concept of sovereignity to submit to the jurisdiction of the other. ii) High dignitaries of the State – By Article 361 of the Constitution the President of India and the Governors of the

State are exempt from the jurisdiction of the Court. iii) Ambassadors and Diplomats – Ambassadors and some other foreign diplomats enjoy immunity from the jurisdiction of the Courts. They enjoy the same immunity as the Sovereign or the State which they represent. Their immunity is based on the principle that they being representatives, of the state which sends them are admitted upon the faith to be clothed with same independence of and superiority to all adverse jurisdiction as the sovereign authority whom they represent would be. For certain purposes the premises of the foreign missions are not considered as part of this country but as a part of the country which they represent. Offences committed within the the premises of the foreign mission cannot be tried by local courts. If a person enjoying diplomatic immunity grossly offends misuses his office or does any act detrimental to interest of the country, the remedy is to make a demand of his recall.

iv) Alien Enemies – Alien enemies cannot be tried by the criminal courts of India in respect of their acts of war. If an alien enemy commits a crime unconnected with war as theft, cheating etc he would be triable by criminal court. For acts of war they shall be dealt with under martial law. v) Foreign Army – When armies of any foreign state are stationed on the Indian soil with the consent of the Indian Govt , they are immune from the jurisdiction of the local criminal courts. vi) Warships – Warships of a foreign country can enter territorial waters of India only with the permission of govt of India. Man of war (combatant warship) of a state in foreign waters are exempt from the jurisdiction of the state within whose territorial jurisdiction they are. A person is triable by Indian Courts only when the offence has been committed within India. If the offence is committed outside India it is punishable under IPC only when covered by Sections 3,4, 108A of the Code.

Section 4 confers jurisdiction on Indian Courts to extra-territorial offences in the following cases: i ) Offences committed by any citizen of India in any place without and beyond India, (Active nationality principle) ii) offences committed by any person on any ship or aircraft registered in india wherever it may be iii) any person in any place without and beyond India committing offence targeting a computer resource located in India When an offence is committed beyond the limits of India but the offender is found within the territorial limits of India then 2 courses are open; a) he may be given up for trial in the country where the offence was committed i.e , he may be extradited to that country b) he may be tried in India.

Section 3 of IPC provides that a person liable to be tried for an act constituting an offence, committed beyond India shall be dealt with as if he had committed the act within India. The words “ as if such act had been committed within India ” in section 3 creates a fiction with respect to offences committed beyond India. If an Indian does an act in a foreign country which is not an offence there, but is an offence in India, he may be prosecuted in India. Section 188 of Crpc states that a person having committed an offence outside India maybe tried at any place within India where he is found. Section 4 applies only when the acts committed amount to an offence under the Penal Code. Offences committed by foreigners outside India do not constitute an offence under the Code and therefore, no foreigner can be held criminally liable by Indian Courts for acts committed by him beyond the territorial limits of the country .

However, if a foreigner initiates an offence in a foreign country which is completed within the Indian territory, he can be tried by the Indian Court within whose jurisdiction the offence was completed provided he is found within the Indian territory. The jurisdiction to try offences committed on high seas is known as admirality jurisdiction. It is founded on the principle that a ship on the high seas is considered as a floating island belonging to country whose national flag she is flying. Admirality jurisdiction extends over: a) offences committed on Indian ships on High Seas b) offences committed on foreign ships in territorial waters of India c) Pirates Piracy means sailing on the seas for private ends without authorisation from the govt with the object of committing robbery or depredations upon property.

A pirate cannot claim immunity from the tribunal of his captor. By engaging in piracy a person forfeits all his claims to protection from his country or any other country. Any offence committed upon any aircraft registered in India, wherever it may be tried in India. In Om Hemrajani v State of UP, a Dubai based bank filed a complaint under Section 415,420 and 120-B IPC. It was alleged that the petitioner obtained loans and absconded without liquidating the liability to the bank. The Magistrate took cognizance of the offence and issued non- bailable warrants. This action was challenged before the SC. The Court held “ The victim who has suffered at the hands of the accused on a foreign land can complain about the offence to a Court, otherwise competent which he may find convenient. The Court where the complaint may be filed and accused either appears voluntarily or brought before it involuntarily in execution of warrant would be the competent Court within meaning of Section 188 Crpc as that Court would find the accused before him when he appears.”

STAGES IN COMMISSION OF CRIME Intention Intention stage is not sufficient to incur penal liability. The mere intention to commit a crime is not punishable, for the devil himself knows not the thought of a man. It is always possible that a human being may change his evil intention, therefore only an evil intention accompanied with an overt act is made punishable in law. After contemplation the next stage is preparation. Preparation Preparation is punishable in certain exceptional cases only because those cases exclude the possibility of an innocent intention. Preparation consists in devising or arranging means or measures necessary for the commission of offence. Ordinarily preparation is not punishable. The reasons as to why preparation is not punishable are 4 fold; a) A preparation apart

from its motive is generally a harmless act b) It is impossible in most cases to show that preparation was directed to a wrongful end or was done with an evil motive c) making preparation punishable would create innumerable offences d) Mere preparation does not affect the sense of security of the individual nor would the society be alarmed or disturbed as to rouse its sense of vengeance. Under the Indian Penal Code certain exceptions exist to the rule that preparation is not punishable. They are; i ) Section 122 – Collecting arms etc with intention of waging war against the govt of India. ii) Section 126 – Making preparation to commit depredation on territories of any power in alliance or at peace with govt of India iii) Section 235 – Possession of instrument or material for the purpose of using the same for counterfeiting coin. Making or selling instrument for counterfeiting of coin. iv) Section 399 – Making preparation to commit dacoity .

Attempt An attempt to commit a crime is an act done with the intent to commit that crime and forming a part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined but depends upon the circumstances of each case. An attempt to commit an offence can be said to begin when the preparations are complete. Attempt means an act which if not prevented would have resulted in full consummation of act attempted. Attempt has also been defined as the direct movement towards the commission after preparations have been made. If the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime. If the attempt had succeeded the offence charged would have been committed.

IPC treats criminal attempt in 4 different ways. They are; a) commission of offence and attempt to commit it are dealt with in the same section and the extent of punishment prescribed is the same. Ex: offences against state – Section 121, 124 etc abetting mutiny – Section 131 offences against public tranquility – Section 152 and 153-A offences against public justice - section 196, 198, 200 offences relating to extortion, robbery dacoity – Section 385, 387, 389, 391, 397 and 398 criminal trespass – Section 460 b) Attempt to commit offences are dealt with separately and different punishments are provided for attempts and the offences. Ex: attempt to commit murder Section 307, attempt to commit culpable homicide Section 308, attempt to commit robbery Section 393

c) Attempt to commit suicide - section 309. d) Attempt to commit offences for which no express provision is mentioned in the code – Section 511 Elements of Attempt There exists 3 essential elements in order to secure conviction for attempting to commit an offence. They are i ) intention or mens rea to commit an offence ii) an act or step is taken which is more than preparation to commit an offence iii) for reasons beyond the control of actor the offence did not materialize. An attempt to commit an offence commences the moment the accused, after making necessary preparations, commences to do an act with necessary intention. Such an act need not be the penultimate act towards commission of the crime. An attempt to commit an offence, begins when the state of preparation ends .

In Abhayanand Mishra v State of Bihar the accused applied to Patna University to take MA examination as a private candidate. He produced BA certificate and also other certificates evidencing that he was teaching in a school. However, these certificates were revealed to be false documents and it was realized that he was not teaching anywhere. The University prosecuted him for forgery and attempting to cheat. Appellant argued that he had only reached the preparatory stage and not crossed into the state of attempt to cheat. SC ruled out this contention and held that preparation was complete when the accused prepared the application for submission to the University and that the moment he had dispatched it, he had entered the realm of attempt to commit the offence of cheating . In Sudhirkumar Mukherjee v State of WB accused tried to show false delivery of limestone to his company in collusion with the supplier. At the time he was caught, he had not signed the invoice showing delivery of goods however signature of his superior was forged to the invoice.

SC held acts of the accused had crossed the stage of preparation and entered into realm of attempt. Test for determining whether an act amounts to attempt : PROXIMITY TEST The act or a series of acts, in order to be designated as an attempt to commit an offence, must be sufficiently proximate to the accomplishment of the intended substantive offence. In R v Taylor the accused was found in the act of striking a match behind a haystack, which he extinguished on perceiving that he was being watched. He was held guilty of attempted arson. But if he had merely purchased a box of matches, he would not have been found guilty of attempted arson. The underlying maxim is cogitationis poenam nemo patitur which means no man can safely be punished for his guilty purposes, save so far as they have manifested themselves in overt acts which themselves proclaim his guilt.

In State of Maharashtra v Mohammad Yakub the accused were arrested by the official of the Central Excise for attempting to smuggle silver out of India. Applying the proximity test Supreme Court held them liable for attempting to export silver out of India. It was held by Sarkaria J “ they had reached close to the seashore and had started unloading the silver there, near a creek from which the engine of a sea-craft was also heard. Beyond the stage of preparation, most of the steps necessary in the course of export by sea had been taken. The only step that remained to be taken was to load it on the sea-craft and move it out of the territorial waters of India.” So physical proximity of the doer with the commission of the intended crime can help us determine whether the conduct amounts to an attempt or not. TEST OF LOCUS POENITENTIAE This doctrine refers to the possibility of a person who, having made preparations to commit an offence, actually backs out of

committing it, owing to a change of heart or out of any other type of compulsion or fear. The acts of accused would only amount to preparation if the overt acts done by him are such that, if the offender changes his mind, and does not proceed further in its progress, the acts already done would be completely harmless. As long as the steps taken by the accused leave room for a reasonable expectation that he might either of his own accord, or for whatever reason, desist from going ahead with the contemplated act, then he will be treated in law, as only being in the stage of preparation. This doctrine was applied by the SC in the case of Malkiat Singh v State of Punjab. The driver and cleaner of a lorry were intercepted at Punjab,14 miles away from Delhi-Punjab border. They were carrying a load of 75 bags of paddy in violation of Punjab Paddy (Export) Control Order 1959. However, the SC set aside the conviction by holding that their acts were still at stage of preparation.

Equivocality Test This test suggests that an act is proximate if and only, if it indicates beyond reasonable doubt what is the end towards which it is directed. The act in order to constitute an attempt must be unequivocally refer to the commission of the crime. An act done towards the commission of the offence would amount to an attempt if and only if it unequivocally indicates the intention of the doer to accomplish the criminal object. SC in Om Prakash v State of Punjab has clarified that in case of attempt to commit murder by fire arms, till the accused fires a shot he does not do any act towards the commission of the offence and once he fires and something happens to prevent the shot taking effect, the offence of attempt to commit murder is made out. Social Danger Test Seriousness of the crime attempted is used as the criteria in deciding liability. If the resultant consequences would have been grave, crime of attempt is complete. It is the apprehension of social danger which the particular crime is calculated to excite, that determines the liability for an attempt.

ATTEMPT TO COMMIT AN IMPOSSIBLE ACT At one point it was believed that it would be no crime if a person attempted to do something, which in fact was impossible to perform. However, it is now perceived that impossibility of performance of an act does not per se render the attempt to do it an innocent or an act free from guilt. Illustrations (a) and (b) of Section 511 shows that a person can be held guilty of attempting to steal some jewels from an empty jewel box or something from an empty pocket. These two illustrations, lay down the rule that a person becomes liable for attempting to commit an impossible act, if he with the intent to commit the intended offence, has done everything within his reach to commit the intended offence but his criminal objective was frustrated because of reasons unknown to him or circumstances beyond his control or comprehension. An attempt to commit an offence is possible even when the intended offence is impossible to commit.

In R v Shivpuri the accused was arrested while in possession of a suitcase which he believed to contain prohibited drugs. However, on analysis the substance was found to be mere vegetable powder. He was convicted for an offence related to dealing with prohibited substances. He filed an appeal where he contended that since the substance was found not to be a prohibited one he could not be convicted for handling prohibited substances. House of Lords dismissed the appeal stating that since no proof was required that the person knew which category of prohibited drugs he was handling, it was immaterial that the appellant was unsure of exact nature of his substance , other than the fact that he believed that he was dealing in heroin or cannabis. The accused was punished for his guilty mind although the act committed is innocent. The impossibility to do the offence cannot be a defence in India and in England and a persons subjective belief to commit a particular crime is sufficient to convict him.

Principle of Joint Liability There are certain provisions in IPC (Sect 34 -38, Sect 149) which determine the liability of person committing a crime in combination with some others. In all such provisions a joint liability is created either because the intention is common or the object is common to all the persons forming a group alleged to have committed a crime. Sections 34 to 38 and 149 deals with situations where a crime consists of different acts big or small done by a group of persons where it is difficult to determine the liability of all those persons who constitute that group. Section 34 It states that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. This section was meant by framers of the

Code to deal with those cases where it may be difficult to distinguish precisely the part taken by each individual; it was deemed necessary to declare all the persons liable for the Criminal Act. In Barendra Kumar Ghosh v Emperor the appellant was charged under Section 302 read with Section 34 with the murder of a Post Master. Accused was one among the several persons who marched into the Post Office and demanded money from Sub Post Master. Immediately afterwards they fired at the Post Master and fled in different directions. The Appellant contended that he cannot be held liable for murder since he had only waited outside and had not fired at the Post- Master. The Privy Council held the appellant liable for Murder and laid down that section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention each person is liable for the result of them all, as if he had done them himself.

In Mahboob Shah v Emperor the deceased along with a few others proceeded in a boat for cutting and collecting reeds on the bank of the river. An altercation occurred between a man who tried to prevent them and the persons travelling on boat and upon hearing his cry for help the appellant and another came rushing to the spot with guns. While the appellant missed his shot a person died from his friends shot. Appellant was convicted for Murder read with Sect 34 and he appealed against it to the Privy Council. The appeal was allowed by the Privy Council and his conviction was set aside on the ground that there was no evidence that appellant and his friend ever entered into a pre-meditated concert to bring about the murder of deceased in carrying out their intention to rescue the person who cried for help. It was clarified that “Common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that criminal act was done in concert pursuant to the pre-arranged plan.

Common intention should not be confused with similar intention. For an intention to be common it must be known to all the members and must also be shared by them. Common intention exists prior to the commission of the crime. The distinction between common intention and similar intention was brought forth in Pandurang v State of Hyderabad. In this case the victim was attacked by 5 persons including the accused. The conviction of the appellant for murder read with section 34 was set aside by the SC on the ground that “ several persons can simultaneously attack a man and each can individually inflict a separate fatal blow and yet none would have the common intention required because there was no prior meeting of minds to form a pre-arranged plan. In such a case each would be individually liable for whatever injury he caused but none would be vicariously convicted for the act of others.” The conviction for murder was set aside and the accused was found guilty of causing grievous hurt under 326 IPC.

Criminal Act discussed in Section 34 is not the same as an offence. It includes a series of acts and omissions. It is a transaction comprising doing of separate acts. Section 34 is based on the decision in R v Cruise. In this case a Constable and his assistants had gone to arrest a person ‘A’. There were 3 other persons B,C, and D. On seeing the Police Constable B, C and D came out of the house gave him a blow and drove away the Constable and his assistants. Court evolved the concept of Joint Liability and held that each member B, C and D were responsible for the blow, irrespective of whether any of them had actually struck the blow. Common intention should be shown to be pre-meditated. It must be shown there was a prior meeting of mind. Proof of common intention will rarely be available directly. It has to be understood from facts of the case. Common intention can develop during the course of occurence

and could develop on the spot. It was explained in Pandurang case. Common intention can arise suddenly and it need not be an elaborate plan. For ex; if a man shouts at bystanders asking them to help him to kill a particular person, and they through their acts or speeches, extend their support to him and actually joins him, then there is a necessary meeting of minds. However hastily formed a pre-arranged plan has come into existence. Common intention can develop on the spur of the moment. Participation is condition precedent to attract joint liability. Participation must be in doing the act and not merely in planning. Participation need not in all cases be by physical presence. Accused can remain a little away and supply weapons to other accused by throwing them or with advent of electronic communication he may be overseeing the act from a distance and giving instructions. Common intention can be determined from conduct of offenders, manner in which they arrived at the scene, nature of

weapon, declaration made by them before attack and background of incident for determining common intention. To attract the provisions of Section 34 an overt act is not necessary, a legal omission is enough. Ex; A co-accused standing near the victim, face to face, saw an armed assailant nearing a victim from behind with a weapon to inflict a blow. Co- accsed could have alerted the victim but did not do so with the idea that the blow should fall on the victim. Hence an act whether overt or covert has to be done by the accused to be liable under Section 34. Effect of acquittal of Co-accused – If the acquitted co-accused reduce the number of accused to that below which a common intention cannot exist, (one accused), then conviction using Section 34 cannot be resorted to, unless it is proved that he shared a common intention with persons other than the acquitted persons and the offence was done in furtherance of that intention.

Section 35 stated that if several persons join in an act, each having a different intention or knowledge from others, each is liable according to his own intention or knowledge. Where several persons join in an act which is criminal only by reason of its being done with a certain knowledge or intention each person is liable for the act to the extent of his knowledge or intention. In Adam Ali Taluqdar , A and B beat C who died. A intended to murder him and knew the act would cause death. B only intended to cause grievous hurt and did not know his act was likely to cause death. A was held guilty of murder and B of causing grievous hurt. Section 37 deals with intentional co-operation which is different from common intention. Under Section 37 actual participation in the actus reus is necessary unlike under Section 34 where accused is made constructively liable. Ex: A and B agree to murder Z by giving him poisons at different times. A and B both gives poison to Z and Z dies as a result of different doses of poison. A and B intentionally co-operates in the commission of the offence by means of several acts.

Distinction between Common Intention and Common Object Both Sections 34 and 149 deal with constructive criminality. Common intention denotes a prior meeting of minds, while common object does not necessarily require proof of prior meetings of minds. Common intention is undefined while common object is defined under Section 141 IPC. Section 34 does not create any offence by itself but Section 149 does so. Criminal act under Section 34 must be done in furtherance of common intention. Under Section 149 the criminal act must be done in prosecution of the criminal object or it would be sufficient if the members of the assembly knew that offence was likely to be committed. Active participation is an essential element under Section 34 while under Section 149 a mere membership of the unlawful assembly at the time of commission of the crime would be sufficient. Active participation is not necessary. There must be at least 5 persons to attract Section 149 while for Sect 34 its 2.

THEORIES OF PUNISHMENT Deterrent Theory According to deterrent theory the object of punishment is not only to prevent the wrongdoer from doing a wrong a second time but also to make an example out of him to other persons who have criminal tendencies. The aim of punishment is not revenge but terror. An exemplary punishment should be given to criminal so that the others may learn a lesson from him. The result of this theory was that severe and inhuman punishments were imposed even for minor offences. Preventive theory The object of punishment is to prevent the offender from repeating the offences. It aims at disabling the criminal from doing a crime. An example of preventive theory is cancellation of driving licence .

Reformative theory According to this theory, the object of punishment is to bring about the moral reform of the offender. The advocates of this theory suggest that by sympathetic and loving treatment of offenders change can be brought about in their characters. Severe punishments will only debase them. Hanging a criminal is merely an admission of the fact that human beings have failed to reform the erring citizen. This theory requires circumstances of the crime to be taken into consideration and every effort should be given to criminal to improve himself. Mild imprisonment with probation is the only mode of punishment approved by the advocates of reformative punishment. Retributive theory This theory suggests that the purpose of punishment is to satisfy the desire for vengeance. In primitive society punishment was mainly retributive. The principle of an “ eye for an eye, tooth for tooth” was recognized and followed. In modern societies, retribution serves only a subsidiary purpose. According to this theory, punishment is an end in itself.

Expiatory theory Punishment is a form of expiation. The penalty of wrongdoing is a debt which the offender owes to victim. When the offender endures the punishment, the debt is paid off. This theory concentrates on the victim rather than the criminal. The victim is paid compensation by the criminal so that the spirit of vengeance is satisfied and victims financial needs are also taken care of. This theory is considered as related to retributive theory and sometimes as a part of it. PUNISHMENTS UNDER THE CODE Section 53 enumerated various kinds of punishments to which the offenders are liable under the Penal Code. They are; 1) Death 2) Imprisonment for Life 3) Rigorous and Simple imprisonment 4) Forfeiture of Property 5) Fine. Generally the Code lays down the maximum punishment that can be imposed for an offence. The punishment in a particular case shall, within the maximum limits fixed by the Code, be awarded in the discretion of the Court.

The sentence should neither be disproportionately severe nor should it be too lenient so as to fail to serve its purpose in producing effect on the offender and as an eye opener to others. i ) Death Penalty - In our country under Criminal Procedure Code death sentence used to be a rule and imprisonment was an exception. However, later this position was reversed and now the Criminal Procedure Code 1973, in its Section 354(3) provides that in case of death penalty special reasons are to be stated. Now imprisonment is the rule and capital sentence is the exception. In Jagmohan v State of UP it was argued that death penalty was unconstitutional and hence invalid as a mode of punishment. It was argued that death penalty cannot be considered as a reasonable restriction on right to life. Supreme Court held that death penalty is valid. The deprivation of life is constitutionally permissible if that is done according to procedure established by law.

In Bachan Singh v State of Punjab , the Supreme Court while upholding the validity of death penalty expressed the opinion that it ought to be imposed only in the rarest of rare cases, where the alternative option is unquestionably foreclosed. The aggravating circumstances which justify the award of death penalty have been summed up as; 1) Murder involves previous planning and extreme brutality 2) murder involves exceptional depravity 3) murder was committed by a member of armed forces or any public servant while he was on duty etc . In Machhi Singh v State of Punjab , the SC laid out certain factors which could justify the imposition of death penalty. They are 1) Murder is committed in extremely brutal manner 2) Motive for commission of murder evinces total depravity 3) Murder is committed of a member of SC/ST or minority community with a view to terrorize the members of the caste or group.

4 ) When the crime is enormous in proportion 5) When the victim of murder is an innocent child, helpless woman or a person rendered helpless by old age or infirmity . In Sher Singh v State of Punjab Supreme Court clarified that unreasonable delay may be taken into consideration in mitigation of punishment. However, delay in execution of death sentence exceeding two years by itself does not entitle a person under sentence of death to demand quashing the sentence and converting it into a sentence of life imprisonment. In IPC the following offences can be awarded death sentence; 1) Waging war against govt of india – Sect 121 or abetment of mutiny – Sect 132 2) Perjury resulting in conviction and death of an innocent person – Sect 194 3) Murder – Sect 302 4) Abetment of suicide of Child or insane person – Sect 305

5) Attempted murder by a life convict – Sect 307(2) 6) Dacoity with murder – Sect 396 ii) Life Imprisonment – A Sentence of imprisonment for life means a sentence for the entire remaining life of the accused unless the sentence is remitted by the appropriate government either in whole or in part. There is no provision either in the IPC or in the Code of Criminal Procedure whereby life imprisonment could be treated as 14 or 20 years. By way of Section 432 of CrPC appropriate govt may suspend or remit the sentence of a person convicted of an offence however Section 433-A mandates that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served atleast fourteen years of imprisonment.

Imprisonment for life is to be treated as rigorous imprisonment for life. The sentence of imprisonment for life was substituted for transportation. Transportation to overseas penal settlements implied hard labour for the concerned convicts and the punishment of deportation beyond sea was considered as the most dreaded punishment. III) Imprisonment – Imprisonment is of two descriptions namely, rigorous and simple. In case of rigorous imprisonment, a convict is put to hard labour such as grinding corn, digging earth, drawing water, construction of roads and dams, cutting fire-wood, making furniture etc. In the case of simple imprisonment, a prisoner is merely confined to jail and is not put to any work. The offences in which an offender is punished with rigorous imprisonment without the alternative of simple imprisonment are Section 194 and Section 449 .

An offender is punished with Simple Imprisonment only in the following offences: Section 172- 174 , Section 175, Section 178, Section 228, Section 291, Section 341, Section 509 Section 510 etc. In State of Gujarat v Hon’ble High Court of Gujarat, it was held by the Supreme Court that imposition of hard labour on prisoners undergoing rigorous imprisonment was legal. It was also observed by the Court that the prisoner should be paid equitable wages for the work done by them. In Case of offences like rape, or attempting to commit robbery or dacoity while armed with deadly weapons, the minimum term of imprisonment is fixed by IPC. Section 61 and 62 were discussing about forfeiture of property as a punishment, however, these sections were abolished by IPC Amendment Act of 1921. Now absolute forfeiture of all property of offender has ceased to be a form of punishment.

IV) Fine - Fine is forfeiture of money by way of penalty. A Court has wide discretion in quantifying the fine to be imposed, where no amount of fine is stipulated in a penal provision. The Court also has to ensure that the amout of fine imposed should be within the means of the accused to pay though he must be made to feel the pinch of it. Section 63 states that where no sum is expressed as fine, the sum imposed shall not be excessive. Section 64 confers a general power on the Courts to award the sentence of imprisonment in default of payment of fine in all cases in which fine can be imposed to induce the offender to pay the fine. Section 65 discusses the limit to imprisonment for non-payment of fine, when imprisonment and fine awardable. When the court sentences an accused for a punishment, which includes a fine amount, it can specify that in the event the convict does not pay the fine amount, he would have to suffer imprisonment for a

further period as indicated by the Court, which is generally referred to as default sentence. Section 65 IPC fixes the maximum period that can be imposed as default sentence in case the convicted person does not pay the fine amount, as one-fourth of the maximum period fixed for the offence the accused person is convicted of. Section 66 states that the imprisonment which the court imposes in default of payment of fine may be of any description to which the offender might have been sentenced for the offence. Section 67 states that when the offence is punishable with fine only, then default sentence would be of the nature of simple imprisonment. When the amount of fine not paid is less than 50 rupees the default sentence cannot exceed 2 months, when the fine amount is less than 100 but exceeding 50 rupees the default sentence cannot exceed 4 months and when the amount is more than 100 rupees default sentence cannot exceed 6 months.

Section 68 states that default sentence would automatically come to an end whenever the fine is either paid or levied by a process of law. Section 69 makes it clear that a proportional payment or levying of fine causes a proportional reduction in the term of imprisonment. Section 70 states that the period during which a warrant for realization of fine could be executed is six years or during imprisonment. The death of the offender does not discharge from liability any property which would after his death be legally liable for his debts. Solitary Confinement - Solitary Confinement means keeping the prisoner isoalted from any kind of intercourse with the outside world. It is inflicted in order that a feeling of loneliness may reform the criminal. It should be very rarely exercised in most exceptional cases of unparallel atrocity. Section 73 discusses about Solitary Confinement. When any person is convicted of an offence for which under IPC Court can sentence him to rigorous imprisonment , the Court may, order the offender to

to be kept in solitary confinement. If the term of imprisonment is less than 6 months, the maximum period of solitary confinement is one month. In case of imprisonment more than 6 months but not exceeding one year, the maximum period of solitary confinement is 2 months. If the term of imprisonment has exceeded one year the maximum period of solitary confinement that can be awarded is 3 months. Section 74 states that solitary confinement cannot exceed fourteen days at a time and it should be imposed at intervals of equal duration as that of the confinement. In case of imprisonment exceeding 3 months, solitary confinement cannot exceed 7 days in one month.

General Exceptions Chapter IV of IPC comprising Sections 76 to 106, exempts certain persons from criminal libality . An act or omission of an accused even though prima facie falls within the terms of the section defining an offence, does not constitute an offence if it is covered by any of the exceptions enumerated in Chapter IV of the Code. A wrong doer who has committed an actus reus with the requisite mens rea , may escape from liability because he has a general exception to offer as an answer to the prosecution. The general exceptions, limit and override offences and penal provisions in the Code. The term General exceptions is used to convey that these exceptions are available to all offences. General Exceptions can be classified into Excusable and Justifiable. In Excusable, the law excuses certain classes of persons, even though their acts constitute an offence. The

second category is where the acts committed, though are offences are held to be justifiable under certain circumstances and hence exempted from the provisions of the IPC. Acts of infants, insane or intoxicated persons, and acts done under the mistake of fact or by accident fall under the first category of exceptions. Acts done out of necessity, Judicial acts, acts under duress, acts done in private defence of body or property fall under the second category. In Excusable defences , the act is excused for want of necessary requirements of guilty mind, while in the latter the act done is justified on account of some other meritorious considerations. Thus in the first category of defences the actus-reus is treated as non-criminal because of absence of mens rea while in the second category of defences the act is done with requisite mens rea but there exists other circumstances which justify the act. In Excusable defences the focus is on the actor while in Justifiable defences , the focus is on the act.

This Chapter has been framed in order to obviate the necessity of repeating in every penal clause a considerable number of limitations. Instead of qualifiying every offence with exceptions, a separate chapter has been enacted which is applicable to entire code. This was done to avoid the obvious inconvenience in repeating the exceptions in every offence. Section 6 of IPC makes it clear that every definition of an offence, every penal provision, and every illustration shall be understood subject to the exceptions contained in the Chapter General Exceptions. Every provision of IPC has to be read along with the Chapter on General Exceptions before coming to any conclusion on the liability or culpability of a person accused of a crime. Section 40 of IPC defines the word ‘ offence ’ as denoting a thing punishable under the IPC as well as under a special or local law. Thus it follows that Chapter on General Exceptions is applicable not only to the IPC, but also to penal provisions in other special and local Acts. The title ‘General Exceptions’ is adopted to convey that these exceptions are available to accused of all offences.

It is the fundamental rule in Criminal Law that a person is innocent until proven guilty. There is a presumption of innocence in favour of the accused and the burden of proving every aspect of the crime – the actus reus , the mens rea , the causation and the motive – is solely on the prosecution. The Standard of proof required is that the prosecution has to prove the guilt of the accused beyond reasonable doubt. Section 105 of Indian Evidence Act, places the burden on the accused to prove that the case falls within one of the general exceptions. It provides that the Court shall presume the absence of such circumstances, which may bring the accused within the exceptions set out in Chapter IV of IPC. It is the duty of the accused to show that the circumstances bringing the case within the exception are present. The Standard of proof required from the part of the accused is not as high as that of prosecution. He can discharge his burden of proof as soon as he proves the preponderance of probability.

He need not prove beyond reasonable doubt that case falls under an exception. Once a prima facie case of the existence of circumstances that bring the case within any of the general exception is made out, the burden once again shifts on the prosecution to prove beyond reasonable doubt the guilt of the accused and to establish that the general exception relied on by the accused does not exist. I) MISTAKE OF FACT Section 76 – Act done by a person bound, or by mistake of fact believing himself bound, by law. Illustration – A, an officer of 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. Section 79 – Act done by a person justified or by mistake of fact believing himself justified by law. Illustration – A sees Z commit what appears to A 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 act, seizes Z in order to bring Z before the proper authorities. A has committed on offence though it may turn out that Z was acting in self- defence .

Ignorantia facit excusat , means ignorance of fact is an excuse. Ignorance means lack of knowledge, or wrong opinion or judgement caused by insufficient knowledge. Mistake of fact to be an excuse must be with respect to a material fact, a fact essential to constitute a particular offence. Mistake may be successfully pleaded in defence only if the belief is in good faith. Mistake is a defence because when an act is done by reason of mistake of fact, mens rea necessary to constitute the crime is absent or negatived . Mistake of law means mistake as to the existence or otherwise of any law on a particular subject as well as mistake as to what the law is. The words “by reason of mistake fact and not by reason of mistake of law” used in Section 76 denote the paraphrasing of latin maxim “ ignorantia juris non- excusat . ” This principle is based on another rule of evidence that “ every man is presumed to know the law .”

In Gopalia Kallaiya a Police Officer arrested the Complainant under a warrant believing in good faith that he was the person to be arrested. The Complainant brought an action for wrongful confinement. It was held that the Police Officer was not guilty because he was protected by Section 76. In Bhawoo Jivaji v Mulji Dayal , the accused, a Police Constable saw the Complainant early in the morning, carrying under his arm three pieces of cloth. He suspected the cloth to be stolen and therefore questioned the complainant. Answers given by him were not satisfactory. He also refused to allow the Constable to inspect the cloth. The Constable thereupon arrested the complainant. The Cloth was found not to be stolen and therefore he prosecuted the Constable for wrongful restraint and Confinement. He was given benefit of Section 76. In State v Mc. Donald a rail conductor under the honest belief that a passenger had not paid the fare, forcibly ejected a passenger from a Train. It was held that he cannot be held liable under Criminal Law.

In Barronet case 2 Frenchmen were convicted for Murder even though they did not know that by law of England killing an adversary in fair trial amounted to Murder. Section 52 of IPC says that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Good faith in each case must be considered with reference to general circumstances. In determination of good faith, a reference to the capacity, intelligence and position of the accused as well as circumstances under which a person acts becomes relevant. Under Section 79 the person under the mistake considers himself to be justified by Law to act in a particular way. Under Section 76, person under the mistake considers himself bound by law to act in a particular way. Under Section 79 an act may not be justified by law, yet if it is done under a mistake of fact, in the belief in good faith that it is justified by law, it will not be an offence.

In State of Orissa v Ram Bahadur Thap , the respondent was a Nepali Servant who came to a village with his Master for trade purposes. The villagers had strong belief in ghosts and the respondent and his Master were curious to see them. At midnight they went out to see ghosts and they found strange light at distance. The Nepali servant attacked the figures thinking they were ghosts. But they were women collecting flowers. He was charged with Section 302 and 326 but was acquitted under Section 79 of IPC. It was held by the Court that “ Standard of care and caution must be judged according to capacity and intelligence of person whose conduct is in question .” Servant was acting in good faith, since he was a firm believer of ghosts and the place was notorious for ghosts. In Chirangi an accused owing to a defect in his vision and the effect of a fall bonafidely believed that his son was a tiger and caused fatal injuries to him with an axe in a moment of delusion. He was not convicted for the offence of murder.

In State of Orissa v Khora Ghasi , the accused while guarding his maize field shot an arrow at a moving object in the bonafide belief that it was a bear and in the process he caused the death of a man who was hiding there. He was held not liable since he was acting under a mistake of fact. In Rajkapoor v Laxman , the petitioner was the producer of a film called Satyam Shivam Sundaram . He was prosecuted under Sect 292 IPC alleging film was obscene and indecent. It was contended by the Producer that film was duly certified by Board of Censors under Cinematograph Act and no prosecution can be legally sustained. Court held Petitioner had obtained a certificate for public exhibition, and they acted under the bonafide belief that certification justified their public exhibition. They were entitled for protection under Section 79 IPC.

II) Judicial Acts Section 77 provides that nothing is an offence which is done by a Judge when acting judicially in exercise of any power which in good faith he believes to be given to him by law. This section provides protection to Judges while acting judicially. This section affords protection to a Judge in those cases in which he proceeds irregularly in exercise of a power given him to by law and also in cases where he in good faith exceeds his jurisdiction and has no lawful powers. The question of good faith is relevant only when a Judge acts without jurisdiction, but when there is a jurisdiction the immunity extends even to acts which constitute even an abuse of it. Section 78 is a corollary to Section 77. This section offers protection to officers acting under the authority of judgment or order of a Court of Justice. An officer is protected under this section if he executes an order of a court which has no jurisdiction at all provided that he in good faith believes that Court had jurisdiction.

III) Accident Section 80 states that nothing is an offence which is done by accident and without any criminal intention or knowledge in the doing of a lawful act with proper care and caution. Section 80 is based on the principle that criminal law cannot punish a person for his mistake or misfortune. Ingredients of Section 80 are: i ) the act must be an accident ii) act must be done without any criminal intention or knowledge iii) accident must be the outcome of a lawful act done in a lawful manner by lawful means iv) act must have been done with proper care and caution An act that that was intended by or known to the doer cannot be an accident. Injuries caused due to accidents in games and sports are covered by this Section. In Tunda v Rex dealt with a case where 2 friends, who were fond of wrestling participated in a wrestling match. One of them sustained injuries which resulted in his death. In the absence of any foul play it was held

that the act of causing death was purely an accident and the accused was protected under Section 80. One of the primordial requirements under Section 80 is that the act must have been done with proper care and caution and the standard of care should be that of a prudent and reasonable man. If an act is done without proper care and caution, the accused will not be entitled to the benefit of Section 80. In Sita Ram v State of Rajasthan, the accused was digging the earth with a Spade. The deceased came to collect the mud. The Spade hit the deceased on the head and he succumbed to injuries. The accused pleaded that it was an accident. The Rajasthan High Court held that the accused was aware that other workers would come and pick up the mud. The accused did not take proper care and caution and acted negligently. He was convicted under Section 304A IPC.

In Jageshwar v Emperor the accused was beating a person with his fists, when the latter’s wife with a two months child on her shoulder interfered. The accused hit the woman but the blow struck the child on his head. The baby died from the effects of the blow. It was held that though the Child was hit by accident, the accused was not doing a lawful act in a lawful manner and therefore the defence under Section 80 could not be availed. If a person ‘A’ shoots at a fowl with the intention to kill it and kills ‘z’ who was hiding behind a bush, whose presence A was not aware of, then A will not be guilty of any offence and can claim the benefit of Section 80. IV) Section 81 – Necessity The Indian Law on defence of necessity is described in Section 81. An act which would otherwise be a crime may in some cases be excused if the person can show that it was done only in order to avoid consequences which would have inflicted inevitable and irreparable evil.

The ingredients of the defence of necessity are as follows: i ) The act constituting the offence is known by the wrong-doer to be likely to cause harm, but it is done without any criminal intention to cause harm. ii) The act must have been done in good faith iii) The act must have been done for the purpose of preventing or avoiding more harm iv) The harm aimed to be prevented or avoided may relate to person or property. The evil inflicted by it should not be disproportionate to the evil avoided. Section 81 permits the infliction of a lesser evil in order to prevent a greater evil. It is based on the principle that in case of a sudden and extreme emergency where one of the two evils is inevitable, it is lawful to direct events so that the smaller shall occur. In order to avail of the defence under this section it is necessary that criminal act is done without evil intention.

Section 81 is based on the maxim ‘ Necessitas Vincit Legem ’ which means necessity overcomes the law. It grants immunity to accused who chooses lesser evil, inorder to avert the bigger evil. Law is being broken to achieve a greater good. Under Section 81 even if the accused has knowledge that he is likely to cause harm such knowledge cannot be held against him. Illustration – A in a fire pulls down houses in order to prevent the fire from spreading. He does it with the intention of saving human life and property. A will not be guilty of any offence if the harm was imminent. It is to be noted that necessity is not a defence against murder. Necessity is different from Private defence because in Private defence the act is done against the aggressor. In R v Dudley and Stephens, a ship broke down and 3 members of the crew took shelter in a life boat. They had no food and water and on the 20 th day the two members decided to kill the cabin boy who was the weakest among them. The defendants consumed blood and flesh of the victim and kept themselves alive. They were

subsequently rescued by another ship and faced trial for murder. The Court held them liable for murder and laid out the principle that self-preservation is not an absolute necessity. There is no necessity that justifies homicide and no person has the right to take another’s life to preserve ones own. In United States v Holmes the accused was a member of the crew of a boat after shipwreck. Fearing that the boat would sink, he threw 16 male passengers overboard. The accused was convicted. V) Section 82 and 83 – Infancy Section 82 states that nothing is an offence which is done by a Child under seven years of age. Section 83 states that act of child above seven and under twelve years of age will not be an offence provided the child has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct.

Section 82 presumes that a Child below 7 years is doli incapax , ie , he is incapable of committing a crime and cannot be guilty of an offence. This presumption is recognized based on the fact that a child below 7 years of age lacks the adequate mental ability to understand the nature and consequences of his act. He is unable to form the required mens rea . This presumption cannot be rebutted by adducing evidence that the child had the capacity of understanding the consequences of his act. Section 83 presumes that a child above 7 years of age but below 12 years of age is doli capax ie , capable of committing a crime depending upon maturity of his understanding. The defence should prove that child was not only below 12 when he committed crime in question but also had not attained sufficient maturity required to understand the nature and consequences of his conduct. In the absence the Court presumes that the child accused intended to do what he really did. Above the age of 12 there is no immunity from criminal liability.

Whether the child had sufficient maturity of understanding is to be inferred from the nature of the act and his subsequent conduct. As Section 82 exempts a Child under seven years of age from any criminal liability, it is illegal for the police officer to arrest a boy under 7 years of age. In England a Child below the age of 10 is absolutely immune from criminal liability. For a child above 10 years of age and below 14 there is a rebuttable presumption of doli incapax . The presumption is that child is incapable of committing a crime which can be proved wrong by evidence of “mischievous discretion” ie knowledge that what was done was morally wrong. In Ulla Mahapatra the accused a boy of 11 years but below 12 years picked up a knife and threatened to cut the deceased to pieces and did actually kill him. Court reached the conclusion that he did what he intended to do and he knew of consequences of his action. He was held liable.

VI) Section 84 – Insanity A person may lack sufficient mental capacity to form a criminal intent because of immaturity of age or because of some disease of mind. Such persons who cannot distinguish between right and wrong because of some defect of mental faculty are not punishable by any criminal prosecution. No act is a crime if the person who does it, is at the same time when it is done prevented either by defective mental power or by any disease affecting his mind a) from knowing the nature and quality of the act or b) from knowing that the act is wrong. The India law relating to insanity is derived from the M’Naghten rules. The accused Daniel M’Naghten suffered from the delusion that Sir Robert Peel, the then PM of England had injured him. He shot and killed Edward Drummond Secretary to PM mistaking him to be PM. The accused pleaded insanity and he was held not guilty because he was suffering from delusion.

The verdict was made a subject of debate in House of Lords and inorder to make the law on the topic clear House of Lords issued what came to be known as M’Naghten rules. The following are the main principles enunciated by House of Lords. i ) Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is established. ii) To establish the defence of insanity, it must be clearly proved that at the time of committing of the crime, the person was so insane as not to know the nature and quality of act he was doing, or if he did know it, he did not know what he was doing was wrong. iii) If the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrary to law, he would be punishable.

The term unsoundness of mind is not defined in IPC. The Indian law is contained in Section 84 which has the following ingredients.; i ) Act must be done by a person of unsound mind ii) Such person must be incapable of knowing a) nature of the act or b) that the act was contrary to law or c) that the act was wrong. iii) Such incapacity must be by reason of unsoundness of mind of the offender. A man who is deprived by disease affecting the mind, of the power of passing a rational judgment on the moral character of act he meant to do is entitled to the benefit of Section 84. The incapacity of mind should exist at the time of doing of the act which constitutes the offence. It is only legal insanity and not medical insanity which absolves a person from criminal liability.

Law is concerned only with legal insanity and not medical insanity. A person is legally insane when he is incapable of knowing the nature of the Act or that what he was doing was wrong or contrary to law. For the purposes of claiming the benefit of defence of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the Act. Every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. There can be no legal insanity unless the cognitive faculties of the accused as a result of unsoundness of mind is completely impaired. A partial delusion, irresistible impulse or compulsive behaviour of a psychopath offers no protection under Section 84 of IPC. In State of Madhya Pradesh v Ahmadullah , the accused had murdered his Mother-in-law against whom he had a grudge. It

was proved in Court that he had scaled over the wall of the house with the aid of a torch light and entered the room were deceased was sleeping. All this showed careful planning and calcualtion and hence the plea of insanity was rejected and the accused was convicted. In Ashiruddin Ahmed v King the accused had a dream that he had been in heaven and he was directed to sacrifice his son. He took his son to the Mosque and stabbed him in the throat and killed him. He himself revealed the same thing to his maternal uncle. Court held that accused thought what he was doing was right, even though he knew what he was doing was contrary to law. Out of the 3 elements in Section 84 the III element whether he knew the act was wrong was found in favour of the accused. He made the sacrifice believing it to be right. Hence he was given the benefit of Section 84. In Jailal v Delhi Administration the accused was a railway employee

who was identified as suffering from acute Schizophrenia. After treatment he joined back in service. One day by the time he reached office he was marked absent. He took leave for one day and went back home. In the afternoon he entered neighbours house and stabbed and killed a one and a half old girl and injured 2 others. It was identified that he had a relapse of Schizophrenia. Court held him liable because he knew what he was doing was wrong and contrary to law. He concealed the Murder weapon, bolted the front door and tried to run away through the back door. He also threw brickbats at the Crowd. His conduct immediately after the occurrence showed his consciousness of guilt. VI) Intoxication Voluntary drunkenness is no defence for the commission of the crime. A person by consuming alcohol and becoming intoxicated voluntarily impairs his own self control and good judgment.

Section 85 gives immunity to a person intoxicated involuntarily. A person seeking protection under Section 85 should prove that a) he was incapable of knowing the nature of the act b) he did not know what he was doing was either wrong or contrary to law c) that the thing which intoxicated him was administered to him without his knowledge or against his will . If the intoxicant administered was not sufficient to make a person incapable of understanding the nature of the act committed by him, then he is not entitled for protection under Section 85. He should lose his ability to understand the nature of the act committed by him as a result of intoxicant administered against his will. He should either be forced or coerced into consuming an intoxicant or he must be totally unaware of the fact that whatever was administered to him had intoxicating effect. In R v Tandy the appellant was an alcoholic who strangled her

11 year old daughter after drinking almost a whole bottle of Vodka. She was convicted. Court held that having chosen to drink Vodka, it could not be said that her resulting abnormality of mind was induced involuntarily. Section 86 states that in case of voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness. In the latter part of the section word intention is omitted which means whether the accused was having intention while committing an act cannot be presumed. A drunken man is attributed the knowledge of a sober man while judging his action. In R v Kingston the accused invited a 15 year old boy to his flat and rendered him unconscious. Then he invited Kingston to abuse the boy in that state. The whole incident was photographed by the accused. Kingston contended that he too was drugged. Even though he was drugged the Court convicted him, because he had the requisite intention. A drugged intent is still an intent.

In Enrique F.Rio a person in state of extreme intoxication caused a fatal injury in abdomen of his friend where he was not capable of forming necessary intention under Section 300, he was not convicted under Section 302 but was convicted under Section 304 Part II by virtue of imputed knowledge under Section 86. In Basdev v State of Pepsu , the appellant was a military officer. He went to a wedding where he requested the victim a boy of 15 or 16 years of age to step aside a little so that he can occupy a convenient seat. Boy refused to do so and and the accused shot him with a pistol. The injury proved fatal. Court held that although the accused was under the influence of alcohol, he was capable of forming the necessary intention. He was talking, moving independently and he made a choice for his own seat and also tried to get away after the incident. All this showed that he had capacity to form the necessary intention and hence offence was not reduced from murder to culpable homicide not amounting to murder.

In Bablu / Mubarik Hussain v State of Rajasthan , the accused killed his 3 daughters and son by strangulation. Accused took the defence that he was in a state of drunkenness and did not know the consequences of what he did. Evidence of drunkenness falling short of proved incapacity in accused to know the nature of the Act and merely establishing that his mind is affected by drink does not rebut the presumption that a man intends the natural consequences of his act. Supreme Court confirmed the death sentence. VII) Section 87 -92 Consent Section 87 states that any harm other than death or grievous hurt even though intended or known by the doer to be likely to be caused will not be an offence if the harm is caused with the consent of a person above 18 years of age. Section 90 describes what is not a consent. Consent inorder to be a defence must be a valid consent ie it must be a consent

given by a person who is capable of giving a good and valid consent and it must be freely given by such person. Consent is not free when it is obtained by fraud, misrepresentation, coercion or undue influence. A consent is not a valid one when it is given under fear of injury or misconception of fact. Misconception refers to misconception as to true nature of the act or regarding the effect or consequences of act. In the following cases consent is not free consent i ) Consent given by a person under fear of injury ii) Consent given under a misconception of fact iii) Consent given by a child under 12 years of age iv) Consent given by a person of unsound mind v) Consent given by an intoxicated person The degree of unsoundness or intoxication in order to vitiate a consent must be the same as that would furnish a defence to a criminal charge on the ground of insanity or intoxication.

A person consenting under a misconception of fact arising out of misrepresentation of fact or fraud practiced on him cannot be said to have consented. In Poonai Fattemah case the accused who professed to be a snake charmer, persuaded the deceased to allow himself to be bitten by a poisonous snake, inducing him to believe that he had power to protect him from harm. It was held that consent was given by the deceased under a misconception of fact arising out of the misrepresentation made by the accused that he had power by charms to cure snake bites and the accused was not entitled to protection on the ground of consent of the deceased. In R v Flattery the accused professed to give medical advice. A girl of 19 years consulted him and he advised surgical operation was necessary. Under the pretence of performing surgery he had sexual intercourse with the girl. Since she submitted to what was done under the belief that he was merely treating her, the accused was guilty of rape.

Section 87 is based on the roman maxim Volunti non fit injuria . It states that Consent is a good defence to all offences against property and to all offences against human body which do not involve the causing of death or grievous hurt. Under this Section any harm other than death or grievous hurt intended or known by the doer to be likely to be caused will not be an offence if the harm is caused to any person with his consent. The person giving the consent should be above 18 years of age and the consent can be express or implied. The defence of consent is based on the proposition that every person is the best judge of his own interest. Every man is free to suffer any injury to his person or property. However Consent does not justify causing death or grievous hurt. If consent is obtained for the performance of a dangerous act, which results in death of the person consenting, the accused will be liable for mitigation of punishment only. For ex; a man suffering from extreme unbearable pain may prefer his death and may ask another

person to shoot him, but if that other person shoots him he will be guilty but under exception 5 to section 300 his offence will be reduced to culpable homicide not amounting to murder. Section 87 ordinarily provides protection to certain games like fencing, boxing, football etc. In games bodily harm is not the intention of either party. However in order to avail the benefit of this defence proper caution and perfect fair play must be used. Section 88 - Under Section 88, a person for whose benefit an act is done, may consent that another shall do that act, even if death may probably ensue although death is never intended by the doctor. Illustration – A, a Surgeon knowing that a particular operation is likely to cause death of Z, who suffers a disease, in good faith for Z’s benefit, performs that operation with Z’s consent. Even if death ensues A cannot be punished.

In order that the defence under this section may be availed it is necessary to show that act was done for the benefit of the person. Consent must be given by a person above 12 years of age. Under this section the wrong-doer is protected even though he has done with the intention of causing grievous hurt. The act which results in harm or injury must be one done in good faith i.e. it should be not an act done without due care and attention. Persons not qualified as medical practitioners cannot claim the benefit of this section as they can hardly be deemed to act in ‘good faith’. In Jaggan Khan v State the accused a Homeopathic doctor administered to a patient suffering from guinea worm 24 drops of stranonium and a leaf of dhatura without studying its effects and the patient died. His act could not be said to be in good faith and therefore he was not protected under Section 88. In Suraj Bali’s a lady was operated upon by a person for cataract

with the result that she lost her eyesight. The operation was performed with the consent of the patient and in good faith for her benefit. It was performed in accordance with the recognized Indian method for treatment for cataract. It was held that defence under Section 88 was available. Section 89 – This section gives power to the guardian of an infant under 12 years of age, or an insane person to consent to the infliction of harm to the infant or the insane person, provided it is done in good faith and for his benefit. Under Section 89 the consent is one of the guardian or other person having lawful charge of the infant. Illustrations – i ) A, a parent who whips the child moderately for the benefit of child has committed no offence ii) A, in good faith for his child’s benefit has his Child undergo a surgery knowing it to be likely that the operation will cause child’s death but not intending to cause child’s death. A has committed no offence.

iii) A in good faith, for his child’s pecuniary benefit handicaps his child. A cannot avail of this defence since section 89 does not include pecuniary benefit. A School Master who for the purpose of enforcing discipline inflicts moderate punishment upon a minor pupil is protected under Section 89. Section 92 – Section 92 deals with situations where the person harmed is not physically in a position to give consent or it is not practical or possible to get the consent of the guardians, as it is an emergency situation. Like in Section 89, the act is done without the consent of the person harmed . In view of this some additional safeguards are provided as provisos in both these sections: i ) benefit of the sections will not be extended to intentional causing of death ii) where the doer is aware of the risk of death the act will be protected only if it was intended to prevent death or grievous hurt etc.

Illustrations – i ) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, in good faith intending Z’s benefit. Even if A causes a mortal wound he will not be liable. ii) A a Surgeon sees a Child suffer an accident which is likely to prove fatal unless an operation is performed. There is no time to apply to child’s guardian. A performs the operation in good faith for the benefit of the Child. A has committed no offence. Section 91 – It constitutes a situation, wherein despite the consent given, an act constitutes an offence not by reason of the harm caused or intended to be caused, but by reason that the act consented is per se illegal. For ex, causing miscarriage of a woman is an offence unless it is done for the purpose of saving the life of woman. Thus miscarriage if caused, even if it is done with the consent of the woman it will not be covered under Section 87, 88 and 89. So in cases where the acts committed, albeit with consent, are per se illegal, irrespective of the harm caused, then such acts will not be protected under Sections 87,88 and 89.

VIII) Section 93 – Communications made in good faith Section 93 states that no communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of the person. For ex, if a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence. IX) Section 94 – Offence committed out of Compulsion The principle is founded on the maxim, actus me invito factus non est meus acts ie an act which is done by me against my will is not my act. The benefit of this section will extend to all offences under the Code except murder and offences against the State punishable with death. Inorder to avail the benefit of this section, the threat under which the act was done must be a threat of instant death. If the threat is anything other than ‘instant death’ then this section will

not apply. Where the threat is to be effected at a future point in time then it cannot be pleaded as an excuse. Whether the threat was real or not, if the circumstances show that at the time of doing the offence, the accused was under a reasonable apprehension that instant death will be caused to him, then that is sufficient for him to be excused from criminal liability. In Queen Empress v Latif Khan it was held that mere order of a superior police officer is not sufficient to justify a subordinate police officer in torturing a person to extract a confession from him, unless the subordinate police officer can show that he was compelled to act under fear of instant death. The proviso to the Section provides that the person doing the act should not, of his own accord, place himself in such a situation of being placed under compulsion. For ex; if a person joins a gang of dacoits of his own accord or by reason of threat of being beaten, he will not get the benefit of this section.

X) Trivial Acts Section 95 is based on the principle that law does not concern itself with trifles ( de minimis non curat lex ). Section 95 aims to prevent penalisation of negligible wrongs or offences of trivial character. Section 95 will come into play only when the act complained of amounts to an offence and no person of ordinary sense and temper would complain of it. Whether an act which amounts to an offence is trivial or not, depend upon the nature of the injury, the position of the parties, the relation between them, the situation in which they are placed, the knowledge or intention with which the offending act is done. In R D Bajaj v K P S Gill the accused slapped the posterior of an IAS officer in a dinner party in the full presence of other ladies and guests. FIR was registered under Section 354 and 509 IPC and High Court quashed the same. Supreme Court disagreed with the HC and held when offences relate to modesty of a woman, under no circumstances can it be termed trivial.

XI) Right of Private Defence The law of private defence of body and property in India is codified in Sections 96 to 106 of Indian Penal Code which is based on the idea that right of self-preservation is basic human instinct. Section 96 states that nothing is an offence which is done in exercise of right of private defence. Section 97 states that every person has a right to defend his own body and body of any other person along with right to defend movable or immovable property of himself or any other person. Right to private defence is exercised only to repel unlawful aggression and not to punish the aggressor of the offence committed by him. Private defence is basically preventive in nature and not punitive. It is neither a right of aggression nor it can be used maliciously. A person is not entitled to use the violence that is disproportionate to the injury which is to be averted and it cannot be used when the need to defend no longer survives.

The exercise of right of private defence is subject to the restrictions mentioned in Section 99. The right of private defence can be exercised only to repel unlawful aggression and not to retaliate. The right under Sect 96 is one of defence and not of retribution or reprisal. Right of private defence cannot be exercised when a person is carrying out a lawful act. Section 98 states that right of private defence is available against the act of a person of unsound mind, or against an intoxicated person or against a person acting under a misconception of fact and even against a child. Section 98 ensures that a person does not lose his right of private defence merely because the opposite party is legally incompetent to commit an offence. Section 98 is based on the fact that right of private defence arises from human instinct of self-preservation and not from any supposed criminality of the person who poses danger to body and property.

Illustration - Z under the influence of madness, attempts to kill A, Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. Section 105 Indian Evidence Act requires that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions is on him and the Court shall presume the absence of such circumstances. The burden of establishing the plea of self- defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of the plea. The accused need not prove the existence of right of private defence beyond reasonable doubt. It is enough for him to show that the preponderance of probabilities is in favour of his plea. Right of private defence is essentially a defensive right which cannot be used for retributive purposes. A right to defend does not include a right to launch an offensive and it cannot be used as a retaliatory measure.

Limits of Right of Private Defence – The first two paragraphs of Section 99 lays down that there is no right of private defence against an act done or attempted to be done by a public servant in good faith, unless it causes a reasonable apprehension of death or grievous hurt. Similarly, right of private defence is available against an act done by the direction of a public servant when it causes a reasonable apprehension of death or grievous hurt. The act should be done in good faith under the colour of his office though that act or direction may not be strictly justifiable by law. The right of private defence is not available when there is time available for having recourse to state authorities. Harm caused under Private defence cannot exceed quantum of harm that may be necessary for the purpose of defence. The restriction on right of private defence rests on the theory that it is good for the society that a public servant should be protected in the execution of his duty even where he is in error.

Right of private defence is given to a person to repel an imminent danger to his body and property when the state help is not available to him. The necessity of self help disappears when he has ample opportunity to have recourse to state authorities. The right of self-defence of either body or property can only be at the time when there is imminent danger or harm. If parties had advance intimation of the impending harm, then their remedy is to approach the appropriate authorities. Similarly, if the alleged harm is already done, then again their remedy is to take recourse to law and not to take law unto their hands. Right of private defence can in no case extend to inflicting more harm than it is necessary to inflict for the purpose of defence. The violence a person is entitled to use in defending himself or his property should not be unduly disproportionate to the injury which is to be averted. He must stop using the force as soon as the threat has disappeared. The right does not allow an individual to chase and kill his assailant who is running away.

Section 100 – Right of private defence of body extends to causing death of the assailant in the following occasions; i ) an assault which creates a reasonable apprehension of death ii) an assault which creates a reasonable apprehension of grievous hurt iii) an assault with the intention of committing rape iv) an assault with intention of gratifying unnatural lust v) an assault with the intention of kidnapping or abduction vi) an assault with the intention of wrongfully confining a person vii) an attempt to throw acid which may cause the reasonable apprehension of grievous hurt. This right is always subject to the restrictions in Section 99. The apprehension of death or grievous hurt must be real or reasonable and not an illusory or imaginary. The apprehension must be present and imminent and not remote or distant.

The accused should be under a bona fide fear that death or grievous hurt would otherwise be the consequence of the assault if he does not defend. The reasonable apprehension of the accused should be judged from the subjective point of view of the accused and it cannot be subjected to microscopic scrutiny. The right under Section 100 can be exercised even before the person had sustained a serious injury. Person apprehending the danger is not required to wait for sustaining injury. Supreme Court has clarified that abduction in Clause (5) means abduction simpliciter as defined in Section 362 of IPC. The victim need not pause and consider whether the abductor has further intention as provided in Section 364-369. Section 101 - This section says that right of private defence extends to causing any other harm and not death in all other situation except as provided in Section 100. In other words,

the right of private defence of body will extend to causing death of the assailant, only in the situation mentioned in Section 100. In all other situations, the right of private defence of body will only extend to causing harm, short of death. Section 102 provides that the right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence. The right of private defence lasts as long as the reasonable apprehension of danger to the body continues. A person cannot get the benefit of Section 102, if he continues his attack even when the apprehension of danger becomes past. Right of private defence continues as long as such apprehension of danger to the body continues. Thus right of private defence is co-terminus with reasonable apprehension of danger. The right of private defence is available when one is suddenly confronted with immediate necessity of averting an impending danger.

Section 106 IPC provides that when there is a deadly assault on a person which causes a reasonable apprehension of death and his right of private defence cannot be effectively exercised without causing harm to an innocent person, then in such situations, any harm caused to innocent persons is also protected by law. If an innocent person is killed or injured, law protects the man exercising the right of private defence. Right of Private Defence of Property A trespasser who is in ‘settled possession’ of the land gets the right to defend his property against an attack even by true owner. The person exercising this right should be in actual physical possession of property. True owner has every right to dispossess or throw out a trespasser while the trespasser is in the process of trespassing however if he has been successful, then true owner can dispossess trespasser only by taking recourse to remedies available under law.

Section 103 IPC enumerates cases in which the right of private defence of property extends to causing the death. A person may cause death in safeguarding his own property or the property of some one else when there is a reason to apprehend that the aggressor was about to commit one of the following offences; i ) Robbery ii) House-breaking by night iii) Mischief by fire on a place used as human dwelling (building, tent or vessel) or as a place for custody of property iv) Theft, mischief or house trespass which creates a reasonable apprehension of death or grievous hurt As per Section 104 if theft, mischief or house-trespass does not create any reasonable apprehension of death or grievous hurt then the right of private defence of property extends to voluntary causing of any harm other than death.

The right of private defence of property does not extend to causing death of the person who committed merely criminal trespass. Only a house trespass which creates a reasonable apprehension of death or grievous hurt would justify death of the assailant as it is enumerated under Section 103 . Section 105 states the right of private defence of property commences when a reasonable apprehension of danger to property commences. The right of private defence of property in theft continues until the offender has effected his retreat with the property or either assistance of the public authorities is obtained. Right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of the criminal trespass or mischief. Right of private defence of property against robbery continues as long as fear of instant death or of instant hurt or instant personal restraint continues .

Case Laws In Jai Dev v State of Punjab, certain villagers who were not happy with strangers cultivating in their area tried to take forcible possession of land. They were armed with weapons. The appellants used their rifles against the villagers. As soon as one person was shot dead all the other villagers started to run away. The appellants used their rifles against the villagers who were at a distance. Court held them guilty of murder under Section 302. While exercising the right of private defence, force must be stopped as soon as the threat had disappeared. Court held there was no justification for using force against villagers who were already running away. In Munney Khan v State of MP the deceased picked up a quarrel with appellants brother. The deceased threw the brother on the ground and sat on his chest and gave him fist blows. The appellant stabbed the deceased in back with a knife. Court held the force used had exceeded the minimum required to save the

person. Since the death was caused by exceeding the right of private defence of body the accused was punished under Section 304 IPC. In State of UP v Ram Swarup and anr it was held by the Court that right of private defence is available to a person in face of imminent peril and to those who act in good faith. It is not available to a person who stage manages a situation wherein right can be used as a shield to justify an act of aggression. The accused had gone to the market with a pre-conceived design to pick up a quarrel, hence he cannot claim right of private defence. In James Martin v State of Kerala Court took the view that a person who is apprehending death or bodily injury cannot weigh in golden scales the no of injuries required to disarm the assailants. Slight or marginal overstepping should not be detected. Hypertechnical approach has to be avoided. It was

held by the Court that person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with arithmetical exactitude. In Viswanath v State of UP Supreme Court made it clear that the benefit of Section 100 would be granted whenever there is an assault with the intention of abducting. It was held even against Abduction Simpliciter right of private defence under Section 100 is available. In Mohinder Pal Jolly v State of Punjab the agitating workers were shot by the Manager of the factory. Court held right of private defence of property can extend to causing death only when there is an apprehension of death. The accused was found to have acted in excess of right of private defence. He was held liable for Culpable Homicide not amounting to Murder. In Amjad Khan v State communal riot broke out in a town and out of fear families of appellants took shelter in a building. The

mob reached their building and started to beat the door with lathis . Appellants fired 2 shots which killed a member of the mob. Court extended him the benefit of Section 100. In Cherubin Gregory v State of Bihar the victim was using the washroom at accused’s house due to some damage of wall at victims house. Accused protested against this and fixed a copper wire across the floor and connected it to a power supply. Deceased while on the way to washroom touched the wire and got electrocuted. Court dismissed the plea of right of private defence of property because the act of accused cannot be brought under Section 99 or Section 103 IPC.

Abetment A person who does not commit a crime, may however, command urge, encourage, induce or help a third party to bring about it and thereby be guilty of offence of abetment. The term ‘abet’ in general usage means to assist, advance aid and promote. Thus any act of an individual, which aids, helps or assists another to commit a crime, falls within the offence of abetment. It indicates that there is a distinction between person abetting the commission of an offence and the principal offender. Under English Law, persons who themselves are not the main offenders, but who assist or aid them are called accessories. English law recognizes 3 types of accessories. i ) Accessories before the fact, ii) Accessories at the fact and iii) Accessories after the fact.

Accessories before the fact are those who though not present in the scene of occurrence, counsel procure or command another to commit the crime. Accessories after the fact are those who knowing that a person has committed an offence knowingly receive, relieve harbour or assist him from escaping the clutches of law. Principals in the first degree are persons who perpetrate a crime directly or through an innocent agent. Accessories at the fact/ Principals of second degree do not actually participate in the commission of crime but they remain present at the occurrence of the crime and thereby aid, assist or abet the commission of the crime. However the IPC does not recognize such a classification of parties to a crime. IPC makes separate provisions to cover liability of persons who helps an accused to flee from justice. Section 107 of IPC discusses about abetment and Sect 108 discusses the definition of abettor.

Under Section 107 abetment is constituted in 3 different ways i ) Abetment by instigation ii) Abetment by Conspiracy iii) Abetment by intentionally aiding a person to commit an offence. Abetment by Instigation Instigation means the act of inciting another to do a wrongful act. One may abet the commission of an offence by counselling , encouraging, procuring or commanding another to do an act. It means to provoke, incite urge or encourage to do an act. Instigation means some active suggestion to stimulate the commission of an offence. Instigation can also be caused by wilful misrepresentation or concealment provided he had a duty to reveal the material fact. A mere request to do a thing may also amount to instigation. If A offers bribe to B, a public servant, then A has done abetment even if B refuses to accept bribe.

Advice per se does not amount to instigation however instigation is direct where there is a command. For ex, If A orders his servant B to beat C, A would be liable for instigating B to cause hurt to C. In Queen v Mohit a woman prepared herself to commit sati in the presence of the accused persons. They followed her upto the pyre and stood by her encouraging her through slogans. It was held that all those who followed her to the pyre and stood by her chanting slogans would be guilty of abetment. Instigation may be in any form. Instigation can be by conduct or by words. A mere word, without necessary intent to incite a person, uttered in quarrel or in a spur of the moment or in anger does not constitute instigation. In K Prema S Rao v Yadla Srinivasa Rao and anr the Supreme Court held that a continued and persistent demand, associated with physical torture and harassment, by husband of a deceased wife for transfer of a piece of land as stridhan amounts to abetment of Suicide by willful conduct.

Abetment by Conspiracy Conspiracy and abetment by conspiracy are 2 distinct offences. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the Conspiracy. But for the offence of Conspiracy, the very agreement is an act in itself and is the gist of the offence. The persons who are initially guilty of conspiracy to commit an offence become guilty of abetting the offence as soon as an act or illegal omission takes place in pursuance of the Conspiracy. Abetment by Intentional Aiding Intentional aid can be by doing an act which directly assists the commission of the crime or by illegally omitting to do a thing which one is bound to do. An act which aids the commission of a crime will amount to abetting an offence only if the act was done with the intention to aid the commission of the offence. The word ‘intentional aid’ warrant active complicity. A mere

giving aid does not amount to abetment by aid if he does not know that the offence was being committed or contemplated. Intention to aid the commission of the offence is the gist of the offence of abetment by aid. A person aiding the commission of an offence under coercion or fear, therefore, does not come within purview of the provision. In order to attract intentionally aiding the act must have been done. The third type of abetment would only be attracted when the offence has been committed. To hold a person guilty of abetment by illegal omission, it is required to prove that his omission led to a breach of legal obligation. Illegal omission should be of an act that the person is in law expected to do. In Kali Churn Gangooly a Head Constable of Police perceiving that his subordinates were about to torture a prisoner for extorting confession, left the place so as not to be a witness of what occurred. It was held that he was guilty of abetment of offence that was committed in his absence.

The charge of abetment by intentional aid fails when the person alleged to have committed the offence is acquitted of that offence. If the perpetrator commits no offence then aiding by another person becomes impossible. Section 108 - Abettor Section 108 explains that to constitute the offence of abetment it is not necessary that the act abetted should be committed or it is not necessary that the person abetted should be capable by law of committing an offence. Illustrations i ) A instigates B to set fire to a house. B in consequence of the unsoundness of his mind sets fire to the house. B has committed no offence but A is guilty of abetting the offence. ii) A induces B to believe that a property belonging to Z, is actually his property. B in good faith acting under the misconception takes the property out of Z’s possession and gives it to A. B is not liable for theft but A is liable for abetting theft.

Explanation 4 to Section 108 makes it clear that abetment of abetment is an offence. For ex, A instigates B to instigate C to murder D. B does not instigate C. He refuses to do so. But even then A will be liable for abetment. The abetment of an abetment is an offence though the second abetment is ineffective. A paid Rs 50 to B to be handed over to C, a medical officer as bribe. B did not pay the money. A was held guilty of abetment of an offence. Explanation 5 states that all persons joining in any conspiracy need not be aware of every secret or every minute detail of it. A number of persons may be involved in a conspiracy and each one of them may play distinct roles. For ex, A and B conspired together for making and engraving a plate for the purpose of forgery. A placed an order with C for the manufacture of plate. C never saw B. Here both A and B would be liable for abetment by conspiracy. Section 108-A provides that abetment is punishable provided the abetment is committed in India though the person abetted is on a foreign territory or offence abetted is committed outside India.

Section 109 states that if the abetted act is committed in consequence of such abetment the abettor shall be punished with the punishment provided for the offence. This section provides for the same punishment to the abettor as that which may be inflicted on the principal offender provided that the act abetted is committed in consequence of the abetment. Illustration - A and B conspire to poison Z. A procures the poison and delivers it to B in order that he may administer it to Z. B administers the poison to Z in the absence of A causing death of Z. Here B is guilty of murder. A is guilty of abetting the offence by way of conspiracy and is liable to punishment for murder. Section 115 states that whoever abets the commission of an offence punishable with death or imprisonment for life shall, if that offence be not committed in consequence of the abetment, be punished with imprisonment for a term which may extend to 7 years.

Illustration - A instigates B to murder Z. The offence is not committed. Here A would be liable for imprisonment for a term which may extend to 7 years. If B had murdered Z, A would have been subject to punishment of death or imprisonment for life. Section 116 states that whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, be punished with imprisonment of any description for a term which may extend to 1/4 th of the longest term provided for the offence. If the abettor or the abetted person is a public servant the term may extend to ½ of the longest term provided for the offence. Illustration – A, a public officer whose duty is to prevent robbery, abets the commission of robbery, but it was not committed. A is liable for one-half of the longest term of imprisonment provided for that offence.

Section 111 states that when an act which is different from that which was abetted, is committed the abettor shall be liable for the abetment of that offence, if the act done was a probable consequence of the abetment. If a person instigates another to perpetrate a crime and the other in course of doing the crime commits another crime in furtherance of it, the former is responsible as an abettor for the latter crime, if it was one which a reasonable man would have known to have to be committed in order to carry out the original crime. Illustration – i ) A instigates a Child to put poison into the food of Z. The child as a result of instigation puts the poison into the food of Y, which is by the side of that of Z. A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of Y. ii) A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft of property there. A is not guilty of abetting theft, for theft was a distinct act and not a probable consequence of the burning.

Section 114 introduces a statutory fiction whereby an abettor is treated as if he had actually committed the offence himself, by reason of his presence at the time and place of the offence. For ex, If A incites B to kill C then A is liable for abetment; if the offence abetted is committed and if he is present at the commission of the offence he is deemed to have committed the offence and is liable as a Principal. The effect of Section 114 is to confine the punishment for abetment, as provided in sections 109, 115 and 116, to persons who abet an offence and are absent when the offence abetted takes place. Section 114 may be said to be wider than Section 34 in one respect. An instigator working through an innocent agent would not be liable under Section 34, while he could be liable under Section 114 . The presence required does not mean that the person should be an eye witness of the crime. The word present means sufficiently near to render assistance. He need not necessarily be present during the whole of the transaction.

Criminal Conspiracy Section 120-A defines Criminal Conspiracy. When 2 or more persons agree to do an illegal act, or a legal act through illegal means, such an agreement is designated as Criminal Conspiracy. Such an agreement is an advancement of the intention which each person has conceived in his mind. An agreement implies the meeting of two minds with reference to a particular matter, and so long as matters are discussed and views are interchanged, but the plan of action has not been settled by concurrence of any two or more of the conspirators, the stage of criminal conspiracy would not be considered to have been reached. Supreme Court has clarified that association of the accused with the main accused or even his knowledge about conspiracy would not make the accused a conspirator because agreement is the sine qua non of offence of conspiracy. An agreement to commit a civil wrong would also amount to Conspiracy.

A Conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means. The purpose of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of attempt. If in furtherance of the Conspiracy certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot, they cannot be held to be conspirators. The Supreme Court in State of Tamil Nadu v Nalini ( Rajiv Gandhi Assasination case ) culled out several principles governing conspiracy. The broad principles laid down were – i ) Under Section 120- A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary.

ii) It would not amount to conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed. iii) Conspiracy is hatched in private or secrecy. It is rarely possible to establish conspiracy by direct evidence. Both the existence of conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. iv) Persons could be members of single conspiracy even though each is ignorant of the identity of the many others who may have diverse roles to play. What part each conspirator is to play may not be known to everyone. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. iv) Criminal Conspiracy is a partnership in crime, and there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Everything said, written or done by any of the conspirators in execution of the common purpose is deemed to have been said, done or written by each of them.

In CBI v V C Shukla ( Hawala Case) it was alleged that Jain brothers had bribed politicians from different parties to obtain favours in matters of certain contracts. The Supreme Court after perusal of the material placed before it held that evidence could not prove that two politicians were parties to it. This left in the Conspiracy only one other party. Hence the charges were held to be unsustainable. However a person may be indicted alone for conspiring with persons who are unknown, dead uncaught, incapable of committing the crime or immune or have been pardoned. Conspiracy is an offence which can be proved either by direct or circumstantial evidence. Direct evidence of conspiracy is the exception rather than the rule. So the facts about Conspiracy are generally inferred from circumstances. It is not essential that all members know all the details of the conspiracy.

Section 120-B states that whoever is a party to a criminal conspiracy to commit an offence punishable with rigorous imprisonment of 2 years or more then he shall be punished in the same manner as if he had abetted the offence. A person who is a party to a conspiracy to commit an offence other than the type discussed above shall be punished with imprisonment not exceeding 6 months. Criminal Conspiracy is a continuing offence . It implies that even those persons who were not party to the initial agreement or did not take part in the meeting at the time of formation of agreement, but who subsequently joined the conspiracy at a later point in time are made liable. Criminal conspiracy lasts until the object of the conspiracy has been achieved or the conspirators have given up their efforts to achieve the objective. A Conspirator may come and leave the conspiracy at any time during the pendency of the conspiracy. Any such conspirator would be liable for the subsequent acts of other conspirators.

Offences against Human Body Culpable Homicide and Murder Homicide is the killing of a human being by a human being. It may be either lawful or unlawful. Lawful homicide includes several cases falling under Chapter IV of Penal Code dealing with general exceptions. Unlawful homicide is of the following kinds ; i ) Murder ii) Culpable homicide not amounting to murder iii) Causing death by negligence iv) Suicide . In IPC Section 299 define Culpable Homicide and Section 300 defines murder. Culpable homicide is the genus and murder is its specie. All murders are culpable homicide, but all culpable homicide are not murders. The true distinction between culpable homicide and murder is only the difference in degrees of intention and knowledge. The greater the degree of intention and knowledge the case would fall under murder.

A lesser degree of intention or knowledge the case would fall under culpable homicide. Culpable homicide sans special characteristic of murder is culpable homicide not amounting to murder. i )The first stage is to establish whether the accused had done an act which has caused the death of another person. ii) The second stage is to establish whether the act would amount to culpable homicide. It has to be ascertained that the act done by the accused is not falling under any of the exceptions of IPC. iii)Once it is established that the act would amount to culpable homicide, the next stage of enquiry is to ascertain whether the act would fall under any of the 4 clauses in Section 300 IPC . iv) If the act is established as Murder then there must be a further enquiry as to whether the act will fall under of the 5 exceptions provided in Section 300. If it falls under any of the exceptions, then it will be culpable homicide not amounting to murder.

The probability of the result of an act is an important matter for the Court to consider while determining whether the result was intended. The greater the probability of consequence the more likely it is that consequence was foreseen and if that consequence was foreseen the greater the probability is that the consequence was intended. The apex court has clarified that the manner of causing injuries, the part of the body where they were inflicted, the weapon used and the conduct of accused are relevant factors in determining whether the offence committed is one of murder or culpable homicide not amounting to murder. Section 299 Whoever causes death by doing an act with i ) the intention of causing death, or with ii) intention of causing such bodily injury as is likely to cause death, or with iii) knowledge that he is likely by such act to cause death, commits the offence of culpable homicide .

The first test to decide whether a particular act or omission would be covered by definition of culpable homicide is to verify whether the act done by the accused has caused death of another person. The relevant consideration for such verification is to see whether the death is caused as a direct result of the act committed by the accused. It is not necessary that the person whose death has been caused must be the very person whom the accused intended to kill. The offence of culpable homicide is complete as soon as any person is killed by the accused whose mental state is of the kind mentioned in above section. Death may be caused by illegal omission also. An omission is illegal if it be an offence, if it be such a wrong as would be a good ground for civil action etc. Ex; a jail doctor voluntarily causes death of a patient by omitting to supply him medical care. Death may also be caused by effect of words.

Intention to cause death - Intention is inferred from the acts of the accused and circumstances of the case. Thus a deliberate firing by a loaded gun at one leads to inference that the intention was to cause death. The existence of intention is not to be inferred unless death follows as a natural and probable consequence of the Act. A consequence is deemed to be intended to though it is not desired when it is foreseen as substantially certain. Intention of causing such bodily injury as is likely to cause death - It only means an intention to cause a particular injury, which injury as it turns out to be, is one likely to cause death. It is not necessary that consequences of injury are foreseen. The difference between the two expressions “ intention of causing death” and “ intention of causing such bodily injury as is likely to cause death” is a degree of criminality. The latter is a lower degree of criminality than the former. But there is no distinction in punishment.

Knowledge that he is likely by such act to cause death – Knowledge refers to the personal knowledge of the person who does the act. Knowledge is to be gathered from the act of the accused and the circumstances of the case. What is necessary is death must be the direct consequence of the act of the accused. In Ketabdi Mundul the accused kicked his wife about 9 years of age on her back with barefoot, she fell down and died immediately. Court held the husband liable for Culpable Homicide not amounting to murder because no reasonable man could be ignorant of likelihood of the act causing death. In Ganesh Dooley a snake charmer exhibited in public a venomous snake, whose fangs he knew had not been extracted. He placed the snake on the head of a spectator just to show his own skill. The spectator in trying to push off the snake was bitten, and died in consequence. He was held guilty of culpable homicide not amounting to murder.

In Chaturnatha A and C had an altercation and the former aimed a blow at C. To ward off the blow C’s wife who had a child on her hand intervened between them. The blow missed its aim and fell on the head of the Child causing death. The accused was held guilty of Simple Hurt only because the wife had intervened and the blow if it had fell upon the complainant would have caused only simple hurt. A hits B on his chest, who is a patient of tuberculosis of the lung and he dies as a result of injury, which was otherwise ordinary. It was not an injury which would have caused death of B if he was not a patient of tuberculosis. A was not aware of this fact and he was held responsible only for causing grievous hurt. In Sobha A caused simple injury to D and D subsequently died of septic meningitis which developed on account of the use of wrong remedies and neglect in treatment. It was held that the accused cannot be held liable under Section 304.

Section 300 – Murder It says that Culpable Homicide is Murder if it is done with: i ) intention to cause death ii) intention to cause bodily injury, knowing that the injury caused is likely to cause death iii) intention of causing bodily injury sufficient in the ordinary course of nature to cause death iv) knowledge that the act is so imminently dangerous that in all probability it will cause death or bodily injury likely to cause death. Culpable Homicide will not be murder, if it is : i ) done on grave and sudden provocation ii) done on exceeding the right of private defence of person or property iii) an act done by a Public Servant in excess of powers conferred on him iv) done during a sudden fight without premeditation v) caused to a person above 18 years of his age with his consent

Act done with intention of causing death – Sect 300(1) Intention to cause death can be inferred from the act. Intention can be proved only by its external manifestations. When injuries are inflicted on vital parts of the body with sharp edged instruments then the intention to kill can be attributed to the offender. It is pertinent to note that first clause of 300 is identical to first clause of 299 which is also ‘ doing an act with the intention of causing death. ’ Therefore an act falling under Section 299(1) will also fall under Section 300(1) and in both instances it will amount to Murder. Intentional causing of bodily injury with knowledge that it will cause death – Section 300(2) Section 300(2) will apply if there is the intention to cause bodily harm and next, there is ‘ subjective knowledge ’ that death will be the likely consequence of intended injury. Section 300(2) contemplates a situation where the offender has certain special

special knowledge regarding the peculiar situation or health condition of the particular victim that the intentional bodily injury is likely to be fatal. The essence of Section 300(2) is the knowledge of the accused that the act is likely to cause death. Intentional causing of injury sufficient in ordinary course of nature to cause death - Section 300(3) The word sufficient in the ordinary course of nature to cause death means there is a high probability of causing death. It must be proved that there was an intention to inflict that particular bodily injury. The injury should not be accidental or unintentional. The injury caused must be sufficient to cause death in ordinary course of nature. This is purely an objective enquiry. It is not necessary that the offender had subjective knowledge that such bodily injury would be sufficient in ordinary course to cause death. The accused who intentionally

caused the injury, may not be aware that injury was sufficient to cause death or was likely to cause death. But if his intention to cause the injury is established and the injury caused is sufficient to cause death in the ordinary course of nature, then the accused is guilty of culpable homicide amounting to murder. Knowledge that Act is so imminently dangerous so as to cause death –Section 300 (4) Section 300(4) contemplates the commission of a reckless act, which is imminently dangerous. The act is so imminently dangerous that that it is likely to cause death or such bodily injury which is likely to cause death. Such imminently dangerous act was done without any reason or justification. Under Section 300(4) the knowledge of the offender as to the probability of death of a person approximates to a practical certainty. Knowledge on the part of the offender must be of highest degree of probability.

In State of Madhya Pradesh v Ram Prasad the accused poured kerosene oil over the wife and set her on fire. She suffered extensive burn injuries and died as a result of the injuries. Supreme Court relied on Section 300(4) and held though this section is invoked where there is no intention to cause death of any particular person, the clause may on its terms be used in those cases where there is such callousness towards the result. He was held liable under Section 300(4) as when the accused poured kerosene and set fire to his wife, he would have known that the act would result in her death. Section 300 also provides 5 exceptional situations, the existence which will remove a case from the purview of Section 300. In other words, even if a case falls within any of the four clauses of Section 300, if it falls within the 5 exceptions, then it will cease to be murder. It will merely be culpable homicide not amounting to murder.

Exception 1 – Grave and Sudden Provocation In order that provocation must be pleaded in partial defence to a charge of murder, 4 elements are necessary i ) There must be provocation ii) Provocation must be grave and sudden iii) By reason of such grave and sudden provocation the offender must have been deprived of the power of self-control iv) the death of the person who gave provocation or of any other person, by mistake or accident must have been caused. Provocation must be sudden. It is sudden when there was no time for the passion to cool down. If the act was done after the first excitement, had passed away, and there was time to cool, it is murder. Provocation is grave if it is sufficient to rouse a persons passion. Provocation should not have been sought for voluntarily by the offender. Provocation should not be a result of an act done in obedience of law or by the act of a public servant in lawful exercise of power.

Provocation cannot be a result of anything done in exercise of the right of private defence. In K M Nanavati v State of Mahrashtra the accused was a naval officer. He was married with 3 children. His wife confessed to him that she had developed intimacy with the deceased. The accused shot the victim after visiting his ship to take his weapon. Supreme Court held that provisions of Exception 1 to Section 300 were not attracted. The accused was convicted for murder because three hours had lapsed after his wife’s confession and he had sufficient time to regain his self-control. Supreme Court held that the fatal blow should be clearly traced to the influence of passion arising from provocation and not after the passion had cooled down by lapse of time. Exception 2 – Exceeding the right of private defence The fact that a person has exceeded his right of private defence acts as a mitigating factor in reducing the offence from that of

from that of murder to Culpable homicide not amounting to murder. Before this exception can be availed of it has to be proved that the accused had the right of private defence. The exceeding of right of private defence should be done without pre-meditation and without any intention of doing more harm than is necessary. In Omkarnath v State of UP the accused party attacked the deceased party while they were fleeing. It was held that the right of private defence had ended and accused were found guilty of Murder and not entitled to benefit of Exception 2 to Sect 300. In Mohinder Pal Jolly v State of Punjab the deceased were workers in factory of the accused. On the day of the incident workers had raised provocative slogans and caused damage to property of accused. Accused caused the death of victim by firing a shot from his revolver. SC held accused had right of private defence but he had exceeded it and hence benefit of Exception 2 was extended to him.

Exception 3 – Act of Public Servant Exception 3 covers a situation where a public servant exceeds his lawful powers in the discharge of his duty and thereby causes death. The act should have been done in good faith and he should not have any ill-will towards the person whose death was caused. In Dakhi Singh v State A suspected thief was arrested by a Police Constable and was being taken in a train. The thief escaped from the running train. The Constable pursued him. When he was not in a position to apprehend him, he fired at him. But, in that process, he hit the fireman and killed him. It was held that the case was covered by this exception. Exception 4 – Sudden Fight This exception covers acts done without premeditation in a sudden fight. This might also cover situations covered under first exception. However, the term sudden fight implies mutual

provocation and aggravation. It implies mutual attack in which both the parties participate. An actual attack by one party and retreat by another does not constitute fight. Fight postulates bilateral transaction in which blows are exchanged by both the parties. When the aggression is only on one side it cannot be a fight. The murder should have been committed without premeditation in the heat of passion during a sudden fight. It should have been committed without the offender having taken undue advantage or acted in a cruel or unusual manner. In Somiruddin v Emperor a feast was held at the house of a person where some persons refused to dine with the a guest on social grounds. The deceased person and the accused quarreled and they exchanged blows using sticks. The deceased gave a blow to the head of the accused while accused snatched up a knife and inflicted wounds on the deceased using it. It was held that benefit of exception 4 was extended and the accused was held guilty of culpable homicide.

Exception 5 – Death by Consent Culpable Homicide is not murder when the person whose death is caused, being above the age of 18 years, suffers death or takes risk of death with his own consent. Death should be caused with the consent of the deceased and such consent was free and voluntary not given through fear or misconception of facts. In Ujagar Singh the accused killed his stepfather who was an old man with the latters consent, his motive being to implicate his enemies. It was held that the offence was covered by 5 th exception to Section 300 IPC and punishable under first part of Sect 304 IPC. In Dasrath Paswan v State of Bihar the accused who was a student of X class, failed his examination thrice in succession. He was upset and frustrated by these failures and decided to end his life. The wife requested him to kill her first.

In pursuance of the pact, he killed his wife but was arrested before he could end his life. The Patna High Court, relying upon the Exception 5 to Section 300, IPC convicted him under Section 304 pt I. The true difference between culpable homicide not amounting to murder and Murder is only in the degrees of intention and knowledge. Act with greater degree of intention and knowledge, would cause the case to fall under Murder. There are practically 3 degrees of culpable homicide recognised in the IPC. I)Culpable Homicide of first degree which is made punishable with death or imprsionment for life - Section 302 II) Culpable Homicide of the second degree, which is made punishable with imprisonment upto 10 years or imprisonment for life - Sect 304 pt I III) Culpable Homicide of third degree which is punishable with imprisonment upto 10 years or fine – Section 304 pt II

Section 304-A Section 304-A is applicable when death is caused by doing a rash or negligent act and such act must not amount to culpable homicide. To impose criminal liability under this section it is necessary that the death should have been the direct result of a rash or negligent act of the accused, the act must be the causa causans . Rash act is acting with consciousness that illegal and mischievous consequence may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. Negligence means that the actor has not exercised the caution required of him. A negligent person is not aware of the consequences and effects of his act because he has not exercised caution. It means doing of something which a prudent and reasonable man would not do.

Hurt and Grievous Hurt Section 319 defines Hurt. It is defined as whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Bodily pain implies that the pain must be physical as opposed to mental pain. Mentally or emotionally hurting somebody will not be ‘hurt’. Infirmity denotes an unsound or unhealthy state of the body. The infirmity may be a result of a disease or as a result of consumption of some poisonous, deleterious drug or alcohol. Section 323 states that voluntarily causing hurt is punishable with Imprisonment which may extend to one year. However if an act comes within the purview of Section 334, which deals with causing hurt on provocation then a lesser punishment of maximum imprisonment of one month is provided. There may be cases where the act may even result in death. But if the intention of the accused as gathered from the surrounding background facts was only to cause hurt, then accused will be punishable only for causing hurt.

Section 320 defines Grievous hurt. The following kind of hurt only are designated as ‘Grievous’. i ) Emasculation ii) Permanent privation of sight of either eye iii) Permanent privation of hearing of either ear iv) Privation of any member or joint v) Destruction or permanent impairing of powers of any joint or member vi) Permanent disfiguration of head or face vii) Fracture or dislocation of a bone or tooth viii) Any hurt which endangers life or any hurt which causes the sufferer to be during space of 20 days in severe bodily pain. Act neither intended to cause death nor likely to cause death will only amount to grievous hurt even though death is caused. In Gornvulue the accused in his bid to steal snatched the nose-

ring of a woman resulting in cutting of the nostrills and the death of the woman. He was held guilty for causing grievous hurt and not for murder because death was entirely unexpected and cutting of the nostrills was to facilitate robbery. Section 325 states that whoever voluntarily causes grievous hurt shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to pay fine. However Section 335 states that, if the grievous hurt was caused on sudden provocation, then punishment may extend only to 4 years imprisonment. Section 326 states that whoever voluntarily causes grievous hurt by any instrument of shooting, stabbing or by means of fire or by means of any heated or explosive substance or by means of any animal shall be punished with imprisonment for life or with imprisonment of either term description which may extend to ten years.

Wrongful Restraint and Wrongful Confinement Section 339 deals with the offence of Wrongful Restraint. It means voluntary obstruction of a person to prevent him from proceeding in any direction in which he has a right to proceed. Wrongful restraint is partial restraint of the personal liberty of a man. A person may cause wrongful restraint to another by causing it to appear to other person that it is impossible, difficult or dangerous to proceed. For ex ; A threatens to set a dog at z if z goes along a path along which z has a right to go. The dog is not savage but A makes z feel that it is savage and thereby prevents z from going along that path. Wrongful restraint can also be caused by threat or by mere words provided it has the effect of bringing about the result of desired obstruction. What is required under this section is obstruction to free movement of a person, the method used for such obstruction is immaterial. For ex ; A who went outside for shopping finds his house locked by B from outside. A is prevented

from getting into his house where he has a right to enter. This act would amount to Wrongful Restraint. Wrongful Restraint is an offence which is complete as soon as the person proceeding is obstructed and the fact that he is allowed to get down the vehicle and then proceed is immaterial. In Gopal Reddi v Lakshmi Reddi it was held that voluntary obstruction of a cart in which persons are travelling would amount to wrongful restraint and the fact that persons may get down and then be left at liberty to proceed on their way is immaterial. Illustrations A was on the roof of a house. B removes the ladder and thereby detains A on the roof. A and B were co-owners of the well. A prevented B from taking water out of the well

In Vijay Kumari v S.R.Rao the complainant was a lady teacher who was not allowed into her room at the hostel. However the School authorities were found not guilty since her licence had already terminated. Necessary pre-condition for wrongful restraint is that a person must have a right to proceed, which in this case the teacher did not have. Section 341 discusses the punishment for wrongful restraint. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to 500rs or both. Section 340 discusses wrongful confinement. In wrongful confinement a person is kept within certain circumscribing limits, beyond which he is not allowed to proceed. Unlike in wrongful restraint there is total restraint in case of wrongful confinement. In wrongful confinement a person is restrained from proceeding in any direction beyond a certain area; in wrongful restraint, he is restrained from proceeding in some particular direction.

Illustration A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if he attempts to leave the building. A wrongfully confines Z. In Shamlal Jairam v Emperor a head constable detained several persons for investigation. They were made to stay in circumscribed limits and their meals were either brought to them or they were sent under escort to their houses for meals and were brought back. It was held that above circumstances created a belief in the minds of these persons that they could not depart without being seized immediately which led to the conviction of the Constable.

KIDNAPPING & ABDUCTION Section 359 of IPC states Kidnapping is of 2 types. 1) Kidnapping from India and 2) Kidnapping from lawful guardianship. Section 360 describes Kidnapping from India. For an offence under Section 360 the victim may be male or female, whether major or minor. This offence consists of the following ingredients : 1) Conveying of any person beyond limits of India ii) Such conveying must be done without the consent of that person. Section 361 defines Kidnapping from lawful guardianship. Ingredients of this Section are : 1) Taking away or enticing away a minor or a person of unsound mind. 2) Such minor must be under age of 16 years if a male or under age of 18 years if a female 3) the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind 4) taking or enticing must also be without consent of the guardian.

In Varadarajan v State of Madras a minor girl who had left the protection of her father voluntarily joined the accused. The SC observed that there is distinction between taking and allowing a minor to accompany a person. The accused was held not to have taken her away from keeping of her lawful guardian. To attract Kidnapping it was held some kind of inducement or an active participation by him in the formation of intention of the minor is necessary. Enticing mean that while the person kidnapped might have left the keeping of the lawful guardian willfully, still the state of mind that brought about that willingness must have been induced by the accused. The offence is complete when the minor is actually taken from the lawful guardianship and the act of taking is not a continuous process. Therefore, the subsequent takers would not be kidnappers because at the time of taking by them minor is not in the keeping of guardian.

The Knowledge of the accused that the person kidnapped was below the statutory limit is immaterial. Where a girl under the statutory age of 18 years is kidnapped, it would be no defence that the accused did not know the girl to be under that age or that from her appearance he might have thought that she was of a greater age. Keeping means within the protection or care of the guardian. A minor is said to be in the keeping of a person where he depends upon him for his or her maintenance, support or sustenance. If a minor boy or girl goes out in the street or on the playground by himself, or goes on a visit to the market or for a fanfare either with or without the knowledge of the guardian, he is still said to be in the legal keeping of her parents. There is difference between lawful guardian and legal guardian. For kidnapping guardian must be lawful and not be a legal guardian. Therefore when the father of a child sends her to school with his servant or a friend, the servant or such friend is the lawful guardian.

Punishment for Kidnapping – Sect 363- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine. Section 363 A deals with kidnapping a minor for purposes of begging. Such persons can be given imprisonment of either description upto 10 years. It also states that whoever maims any minor inorder that such minor may be employed for begging shall be punishable with imprisonment for life. Section 364 deals with Kidnapping or abducting in order to murder. Such persons can be punished with imprisonment for life or rigorous imprisonment for a term which may extend to 10 years. Section 364A deals with kidnapping or abducting for ransom and such persons can be punished by death or imprisonment for life.

Section 365 deals with kidnapping or abducting a person with intent to secretly confine him – Imprisonment upto 7 years. Section 366 deals with kidnapping or abducting a woman to compel her marriage or with intention of having illicit intercourse with her – Imprisonment upto 10 years Section 366B – Importing of girls into India from any country outside India with the intention that she will be forced to illicit intercourse - Imprisonment upto 10 years. Section 367 – Kidnapping or abducting a person in order to subject the person to grievous hurt – Imprisonment upto10 years Section 369 – Kidnapping or abducting a child under 10 years with the intent to steal from it – Punishment up to 10 years.

Section 362 defines the term abduction. The essential ingredients of abduction are: 1) Forcible compulsion or inducement by deceitful means 2) the object of such compulsion or inducement must be going of a person from any place. It must be noted that abduction per se is not an offence. It is an offence when it is accompanied by certain intent to commit another offence. Thus abduction is an offence only if it is done with intent to : a) murder – Sect 364 b) secretly and wrongfully confining a person – Sect 365 c) induce a woman to compel her marriage – Sect 366 d) subject a person to grievous hurt – Sect 367 e) Steal from a person under 10 years – Sect 369 . f) to obtain ransom – Section 364A.

KIDNAPPING ABDUCTION Kidnapping from guardianship can be committed only in respect of a minor or a person of unsound mind. Person kidnapped is removed out of lawful guardianship. Victim is taken away or enticed away Consent of the Kidnapped person is immaterial. Intent of the Kidnapper is irrelevant. It is not a continuing offence. It is complete as soon as the minor or person of unsound mind is removed from lawful guardianship. Abduction may be in respect of any person No such thing is necessary. It has reference exclusively to person abducted. Force, Compulsion and deceitful means are used. Consent of the person condones the offence. Intent of the abductor is an important factor It is a continuing offence. It continues as long as the abducted person is removed from one place to another

Sexual Offences Section 375 defines rape. Section 375 (a) to (d) describes the different acts which constitute offence of rape. Section 375(a) says that penetration by a man of his penis to any extent into vagina, mouth or anus of a woman is rape. 375(b) provides that insertion to any extent of any object or any part of body other than penis into vagina or anus of a woman is rape. 375(c) provides that if a man is manipulating any part of the body of a woman so as to cause penetration of penis into vagina anus or any part of body of such woman would amount to rape. 375(d) provides that if a man applies his mouth to vagina, anus it amounts to rape. Any of the above mentioned acts to be considered as rape, should be falling under any one of the 7 circumstances stated in this section. i ) Against her will

ii) without her consent iii) with her consent, when the consent was obtained by putting her or any person in whom she is interested, in fear of death or of hurt. iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man v) with her consent when at the time of giving such consent, by reason of unsoundness of mind or intoxication she is unable to understand the nature and consequences of her action vi) with or without her consent, when she is under 18 years of age vii) when she is unable to communicate consent. There are 2 exceptions. Exception 1 provides that medical procedure or intervention shall not constitute rape. Exception 2 provides that sexual intercourse by a man with his own wife, the wife being 18 years, is not rape. ( Independent Thought v UOI )

Second Circumstance makes it clear that Consent of the woman must have been obtained prior to the act. This operates in a situation where a woman is imbecile that she is incapable of giving a rational consent. The expression “against her will” implies that act is done inspite of her opposition. Every act done against the will of a woman is done without her consent. But an act done without the consent of a woman is not necessarily against her will. Section 376(1) provides for the punishment of rape. It states that except in the cases provided in 376(2) a person who commits rape shall be punished with rigorous imprisonment for a term not less than 7 years and which may extend to imprisonment for life. Section 376(2) describes certain circumstances where a higher punishment is prescribed for the offence of rape. If offence of rape is committed under situations mentioned in 376(2)(a) – 376(2)(n) the minimum punishment prescribed is 10 years imprisonment and it can go upto life imprisonment.

Section 376 (2)(a) – Rape committed by a Police Officer Sub-section 2(b) – Rape committed by a Public servant Sub-section 2(c) – Rape committed by member of armed forces Sub-section 2(d) – Rape committed by member of staff/management of a jail remand home etc Sub-section 2(e) – Rape committed by a member of staff/management of hospital on a woman in that hospital Sub-section 2(f) – Rape committed by a relative, guardian or teacher of the woman Sub-section 2(g) – Rape committed during communal or sectarian violence Sub-section 2(h) – Rape committed by a man knowing her to be pregnant Sub-section 2( i ) – Rape committed on a woman below 16 years

Sub-section 2(j) – Rape committed on a woman who is incapable of giving her consent Sub-section 2(k) – Rape committed by a man who is in a position of dominance or control over such a woman Sub-section 2(l) – Rape committed on a woman who is suffering from mental or physical disability Sub-section 2(m) – Rape committed by a man who causes grievous hurt or maims or disfigures the victim Sub-section 2(n) – Rape committed repeatedly on the same woman

Section 376 A provides punishment for rape causing death or persistent vegetative state. The minimum punishment is 20 years and it can go upto life imprisonment or death. Section 376AB provides punishment for rape of a woman under 12 years of age. Minimum punishment is 20 years and it can go upto life imprisonment or death. Section 376B provides punishment to a husband who has sexual intercourse with his wife without her consent while she is living separately. Minimum term provided is 2 years and it can go upto 7 years. Section 376C provides punishment to a person who has sexual intercourse with a woman by abusing his position of authority or fiduciary relationship, such sexual intercourse not amounting to offence of rape. Minimum term provided is 5 years but it can go upto 10 years. Section 376D provides punishment to Gang rape. Each of such person shall be punished with a minimum term of 20 years. The maximum period provided is imprisonment for life.

Section 376DA – Gang rape of a woman below 16 years of age – Imprisonment for life Section 376 DB – Gang rape of a woman below 12 years of age- Minimum punishment is imprisonment for life and it can go upto Capital Punishment. The amendments carried out in the year 1983 by Criminal law Amendment Act, 1983 have amended the law relating to rape. It stipulated a minimum mandatory punishment of 7 years and widened the definition of rape. These changes were a result of countrywide criticism against the judgment of the SC in Tukaram v State of Maharashtra. (Mathura Rape Case). Mathura was an 18 year old harijan girl living with her brother. She developed a relationship with one Ashok and they decided to get married. On her brothers complaint, both of them were brought to the Police Station. After recording their statements

all others were asked to leave except Mathura. One of the Constables raped her and another one sexually molested her. The Bombay High Court convicted both the Constables and held that there was a difference between consent and passive submission and held that mere passive or helpless surrender of body to another’s lust cannot be equated with desire or will. However the SC disbelieved Mathura’s version and held that the absence of injuries indicated that alleged intercourse was a peaceful affair. Accordingly both the accused were acquitted of charges of rape. To nullify the effect of SC judgment in Mathura Case Section 114A was introduced in the Evidence Act. Section 114A now states that in a prosecution for rape under subsection 2(a) – 2(n) of Section 376, where sexual intercourse by accused is proved, and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

Unnatural Offences – Section 377 This section is intended to punish certain unnatural offences like sodomy and bestiality. The offence consists in having carnal knowledge against the order of nature by a person with man, or in the same manner unnatural manner with a woman, or by a man or woman in any manner with an animal. In Naz Foundation v Govt of NCT of Delhi it was held that Section 377 IPC to the extent it criminalises consensual sexual acts of adults in private is violative of Article 21, 14 and 15 of the Constitution. The provision was found to be violative of constitutional values and notion of human dignity. It was argued by NAZ that private consensual relations were protected under Article 21 and it was also violative of Article 14 because it was unreasonable and arbitrary to criminalise non-procreative sexual relations. The Delhi HC accepted these arguments and held Section 377 grossly violates right to privacy and liberty

embodied in Article 21 insofar it criminalises consensual acts between adults in private. In Suresh Kumar Kaushal v NAZ Foundation SC read down the judgment of HC and held that only a miniscule fraction of country’s population constitute homosexuals and noticed that over the last 150 years less than 200 persons were prosecuted under Section 377. It concluded that Section 377 did not suffer from any unconstitutionality. However in Navtej Singh Johar v UOI it was declared that insofar as Section 377 criminalises consensual sexual acts of adults in private, it is violative of Article 14, 15 19 and 21 of the Constitution. Court noted that history owes an apology to members of LGBT community for the ostracism they suffered through centuries. Court held that reading down Section 377 is necessary considering the role of SC as sentinel on the qui vive with respect to FR.

Theft Section 378 defines the offence of Theft. “ Whoever intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft .” The following 5 elements are the essential ingredients of theft: i ) It should be a movable property ii) In the possession of anyone iii) Dishonest intention to take it out of his possession iv) without his consent v) Moving it in order to such taking. Intention is the essence of offence of theft. Intention must be dishonest and it must so exist at the time of taking of the property. Dishonest intention exists when the taker of the property intends to cause wrongful gain to one person or wrongful loss to another.

If ‘A’ in good faith believing property of ‘B’ to be his own property takes that property out of B’s possession then A will not be liable for the offence of theft. A is entitled to claim benefit of mistake of fact under Section 79 of IPC. Taking need not be permanent or with an intention to appropriate the thing taken . In Pyarelal v State of Rajasthan ( AIR 1963 SC 1094) the accused working in a Govt office removed a file to his house, made it available to an outsider and then returned it to the office after 2 days. He was held guilty of theft. A person can be convicted of stealing his own property. Ex: If A owes money to Z for repairing his watch and if A takes the watch out of Z’s possession without his consent to avoid payment of repairing, he commits the offence of theft. Similarly, If A having pawned his watch to Z, takes it out of Z’s possession without his consent not having paid what he borrowed on the watch, he commits the offence of theft.

Anything which is permanently attached with earth or is permanently fastened with anything which is permanently attached with earth is known as immovable property. All other things are movable property. Explanations 1 and 2 make it clear that things attached to land may become movable property by severance from the earth and the act of severance may itself be constitute theft. Explanation 1 – A thing so long as it is attached to earth, not being movable property is not subject of theft; but it becomes capable of being subject of theft as soon as it is severed from the earth Electricity running in electric wire is not movable property and therefore, dishonest abstraction of electricity does not amount to offence of stealing. The property must be in possession of prosecutor, whether he is the owner of it or is in possession of it in some other manner. Thus there can be no theft of wild animals but theft is

possible of tamed animals, birds or fishes etc. The offence of theft is complete when the there is dishonest removing of the property. For ex: A meets a bullock carrying a box of treasure. He drives the bullock in certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed the offence of theft. Illustrations Z going on a journey entrusts his plate to A the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession and hence A would not be liable for theft but for criminal breach of trust. A finds a ring on the road, not in the possession of anyone. A by taking it does not commit any theft, though he can be liable for criminal misappropriation of property. A sees a ring belonging to Z lying on a table in Z’s house. A hides the ring in another place with the intention of selling it

afterwards. A has committed the offence of theft. A is the paramour of Z’s wife. She gives a valuable property to A which A knows to belong to her husband. If A takes the property dishonestly he commits theft. CASE LAW In K.N.Mehra v State of Rajasthan 2 airforce cadets stole an aircraft from Indian Airforce Academy and landed at a place in Pakistan. They later met the Indian High Commissioner and informed him that they had lost their way. However they were prosecuted successfully for the offence of theft in India. Prosecution proved dishonest intention by showing that they had took off in a different aircraft, one hour earlier than the scheduled time and without waiting for co-pilot. They also refused to respond to wireless messages from Indian aerodrome. The accused were held guilty of the offence of theft in the above mentioned circumstances.

Section 379 discusses about the punishment for theft. Imprisonment can extend to 3 years and fine also can be imposed. Aggravated forms of theft Section 380 deals with theft in any building, tent or vessel used as a human dwelling or used for the custody of property. Punishment may go up to 7 years imprisonment. Section 381 deals with theft committed by a clerk or servant. Severe punishment is prescribed when a clerk or servant commits theft because he has greater opportunities of committing this offence owing to the confidence reposed in him. Section 382 deals with offence of theft after preparation to cause death, hurt or restraint in order to the committing of theft. For ex : A commits theft on property in Z’s possession and while committing theft he has a loaded pistol for hurting Z in case of any resistance. It is not necessary that injury should be caused because if hurt is caused during theft offence would be punishable as robbery.

Extortion Section 383 discusses the offence of Extortion. For an offence under this section the extortioner must put another person under fear of injury and thereby dishonestly induce that person to deliver property. The property obtained by extortion is not limited to movable property, even immovable property can be the subject-matter of extortion. The thing delivered under this section may be any property or valuable security, or anything signed or sealed which may be converted into a valuable security. The word ‘injury’ is defined in Sect 44. It means ‘any harm whatever illegally caused to any person, in body, mind reputation or property.’ Hence the fear of injury need not be bodily harm or hurt. It includes injuries to mind, reputation or property of the person.

The major distinction between theft and extortion is that offence of extortion is carried out by overpowering will of the owner. In theft property is taken without consent of the person. Besides the property which is obtained by extortion, is not limited to movable property. In Purshottam Jethanand v State of Kutch accused was a police officer who had the duty to verify Passports of certain persons. In course of his duty he demanded payment to return the Passport. SC held that there was a fear of injury created by withholding of Passport and held him liable for Section 384 IPC. In R.S.Nayak v A.R.Antulay the CM asked the Sugar Cooperatives whose demands were pending before the govt to make donations. SC held that these facts do not constitute extortion. It was clarified that for an offence of extortion, fear or threat must be used. The accused should make a threat or omit to do what he is legally bound to do.

Illustration A threatens to publish a defamatory libel concerning Z unless Z gives him money. He induces Z to give him money. A has committed extortion. A threatens Z that he will keep Z’s child in wrongful confinement, unless Z will sign and deliver to A a promissory note binding Z to pay certain money to A. Z signs and delivers the note. A has committed extortion. A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a blank paper and deliver it to A. Z signs and delivers the paper to A. The paper so signed may be converted into a valuable security and hence A has committed the offence of extortion. Extortion becomes robbery if the offender commits extortion by causing fear of instant death, hurt or wrongful restraint. In Robbery property can be removed by force, without delivery.

Section 384 discusses punishment for extortion. Whoever commits extortion shall be punished with imprisonment extending to 3 years. Section 385 discusses punishment for putting a person in fear of injury in order to commit extortion, where actual delivery of property has not taken place. It recognizes the distinction between an inchoate and a consummated offence. Punishment prescribed is imprisonment upto 2 years. Section 386 discusses punishment for extortion by putting a person in fear of death of grievous hurt. The punishment may go upto 10 years imprisonment. Section 388 discusses punishment for extortion by accusing another person of having committed or attempted to commit an offence punishable with death or with imprisonment upto 10 years. The punishment may extend to 10 years imprisonment.

Robbery Section 390 defines Robbery. Robbery is an aggravated form of either theft or extortion. There cannot be any robbery if there is no theft or extortion. Theft becomes Robbery - When someone voluntarily causes or attempts to cause: a) death or hurt or wrongful restraint or b) fear of instant death or instant hurt or instant wrongful restraint During commission of theft or while carrying away or attempting to carry away stolen property For an offence of robbery, death, hurt or wrongful restraint may be caused either in committing theft or in order to committing of theft or in order to carry away the property obtained by theft.

Thus where the accused abandoned the property obtained by theft and threw stones at his pursuers to deter them from continuing the pursuits, he was guilty of theft and not robbery. In another instance D was relieved of his wrist watch by A in a railway station when the train was about to stop. As D raised an alarm B gave him a slap and both A and B jumped out of the train. Here both A and B will be liable for robbery since they acted in furtherance of common intention. Similarly if the accused snatches the nose-ring of a woman and during the action wounds her, he would be liable for the offence of Robbery. Extortion becomes Robbery – when a person commits extortion by putting another person in fear of instant death, instant hurt or instant wrongful restraint to that person or to some other person. The offender, at the time of committing the extortion is in the presence of the victim.

Where a Police Officer obtains from B certain ornament by putting him under the fear that he will immediately be put into prison and will not be released for months, the Police Officer is guilty of Robbery under this Section. In State of Maharashtra v Vinayak Utekar the accused snatched gold buttons from shirt of a person and ran away. He was caught by the informant to whom he caused a knife-blow. The Court held the accused guilty under Section 390 for robbery. Section 392 discusses the punishment for Robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine. If the Robbery is committed on highway between sunset and sunrise, the imprisonment may be extended to 14 years. Section 393 states that attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to 7 years.

Dacoity Section 391 defines the offence of Dacoity . Robbery committed by 5 or more persons is Dacoity . 5 or more persons must either conjointly commit or attempt to commit robbery, then only the offence of Dacoity is constituted. For application of this section it is necessary that all the persons should share the common intention of committing robbery. Dacoity is different from robbery only in respect of number of offenders. Every case of Dacoity is primarily a case of robbery. In dacoity the number of participants must be 5 or more but in robbery the number of participants is always less than 5. If the convicted persons are less than 5 dacoity would not hold. Section 395 discusses the punishment for Dacoity . Whoever commits Dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years.

Section 396 discusses the punishment for committing Murder in course of commission of Dacoity . If any one of 5 or more persons conjointly committing dacoity then every offender would be liable for murder committed by one of them. Punishment may go upto death or imprisonment for life. Section 399 makes preparation to commit dacoity an offence. Whoever makes any preparation to commit dacoity shall be punished with rigorous imprisonment for a term which may extend to 10 years. Section 402 makes mere assembly of 5 or more persons to commit dacoity is an offence. Punishment may extend to 7 years.

CRIMINAL MISAPPROPRIATION OF PROPERTY Section 403 defines the offence of Criminal Misappropriation of Property. The gist of this offence is dishonest misappropriation or conversion of a movable property for ones own use. The essence of offence under this section is that some property belonging to another which comes into accused innocently, is misappropriated or converted by the accused by for his own use. Misappropriation means setting apart for ones own use. Under this section it is not necessary that property should be taken with dishonest intention, but offence of misappropriation is constituted because of subsequent dishonest conversion or appropriation. Misappropriation or conversion need not be permanently, it may be even for some time. Explanation 2 to Section 403 clarifies that a person who finds property not in possession of any other person, and takes such property for purpose of protecting it or for restoring it to the owner is not guilty of any offence.

Illustration A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring it to Z and appropriates it to his own use. A is guilty of an offence under this section. A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without attempting to discover the owner. A is guilty of an offence under this section. A takes property belonging to Z out of Z’s possession in good faith. A is not guilty of theft; but if A after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of criminal misappropriation. A and B are joint owners of a horse. A takes the horse out of B’s possession, intending to use it. Since A has a right to use the horse, he does not dishonestly misappropriate it. But if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of criminal misappropriation.

Where A had taken loan from B and the debt was paid by A but A again paid the money by mistake and if B discovers the mistake and appropriates it for his own use, he would be guilty of misappropriation. In Ram Krishna the accused was a govt servant employed to receive money on behalf of the govt and pay it into treasury. He retained some money for several months but on fearing detection paid the amount to treasury. He was held guilty of criminal misappropriation. In another case A was an illiterate lady who wanted to ascertain whether she had the right railway ticket. She handed over her ticket to another person B who ran away with it. B was liable for criminal misappropriation. A thing abandoned cannot be misappropriated. For constituting an offence under this section property appropriated must be owned by somebody.

In theft offender dishonestly takes property which is in the possession of person whereas in misappropriation the possession has been obtained innocently, but where by a subsequent change of intention the retaining becomes wrongful and fraudulent. The punishment for criminal misappropriation of property is imprisonment upto 2 years. Section 404 deals with dishonest misappropriation of property of a deceased person, which is an aggravated form of offence under Section 403. The punishment provided is 3 years and if the misappropriation is done by a clerk or servant the imprisonment is 7 years. Z dies in possession of furniture and money. His servant A, before the money comes into possession of any person entitled dishonestly misappropriates it. A would be liable under Section 404.

CRIMINAL BREACH OF TRUST – Sect 405 Section 405 to 409 deals with Criminal Breach of Trust. The essential ingredients of CBT are: a) accused must be entrusted with property or dominion over it b) he must have dishonestly misappropriated the property or converted it for his own use. The principal ingredients of Criminal Breach of Trust are entrustment and dishonest misappropriation. The only difference between Criminal Misappropriation and CBT is that in respect of Criminal Breach of Trust, the accused is entrusted with property or with dominion over it. The word entrustment implies that person handing over any property to another continues to be the owner of the property. The person handing over the property must have confidence in the person taking the property so as to create a fiduciary

relationship. Illustrations A is a warehouse owner. Z going on a journey entrusts his furniture to A. A dishonestly sells the goods. A has committed the offence of Breach of Trust. A is a revenue officer entrusted with public money and has to pay the money into govt treasury. A dishonestly appropriates the money. A has committed the Breach of Trust. A, a carrier is entrusted by Z with property to be carried by land or water. A dishonestly misappropriates the property. A has committed CBT. A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to Will, and appropriates them to his own use. A has committed the offence of CBT.

Case Laws In State of UP V Babu Ram the accused a SI had gone to investigating a theft case in a village. He saw a person under suspicious circumstances carrying something in his dhoti folds which was later identified as currency notes. The accused took the bundle and returned it later. The amount returned was short by Rs.250. The SC held that currency notes were handed over to SI for a particular purpose and if the accused had taken the amount it would amount to CBT. In Kundanlal v State of Maharashtra the accused were given 6 gold bangles for repair. He pledged the bangles with a bank to raise loan and did not return the bangles. He was convicted for CBT as he dishonestly misappropriated the property entrusted to him. As seen in criminal misappropriation even a temporary misappropriation is sufficient to attract conviction of CBT.

Section 406 deals with punishment for Breach of Trust. Whoever commits Breach of Trust shall be punished with imprisonment of either description for a term which may extend to 3 years. Section 407 – CBT committed by carrier, wharfinger , warehousekeeper etc- Imprisonment upto 7 years. Section 408 – CBT committed by Clerk, servant etc – Imprisonment upto 7 years Section 409 – CBT committed by a Public Servant, banker, attorney agent etc – Imprisonment upto 10 years or Life Imprisonment. As seen in misappropriation, acts of Breach of Trust done by persons who enjoy special trust is treated more harshly than breach of trust committed by a stranger.

Cheating A person is said to cheat when he by deceiving another person fraudulently or dishonestly induces the person so deceived to deliver any property to him. Inducing a person to do or omit to do any thing which he would not do or omit if he was not so deceived is also cheating if the act or omission is likely to cause harm to that person in body, mind or reputation. Illustration i ) A, by falsely pretending to be in Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats. ii) A by pledging a stone as diamond which he knows is not diamond, intentionally deceives Z and thereby dishonestly induces Z to lend money. A cheats. iii) A sells and conveys an estate to B. A knowing that he no longer has any right over the property sells the same property to Z without disclosing the fact of previous sale and receives money from Z. A cheats.

A willful representation of a fact with intent to defraud constitutes an offence of Cheating. Duping Young girls and inducing them to consent to sexual intercourse based on a false promise of marriage would attract the offence of cheating. In Sudhanshu Shekar v State of Orissa the accused sexually exploited the prosecutrix and put sindur on her acknowledging her as his wife but promised to publicly accept her after he gets a job. But later he refused to accept her as his wife. He was guilty of offence of Cheating. However it is necessary to prove that the promise to marry by the accused was false when he made it. The difference between offence of Cheating and Extortion is that in extortion the consent is obtained by intimidation but in cheating it is obtained by deception. If a person tricks another one to deliver him money which is subsequently misappropriated the offence would be cheating. The offence will not amount to CBT because element of entrustment is absent.

It is necessary for the offence of Cheating to be made out that, at the time of inducement the accused knew that his representation was false and it was made with the intention of deceiving the other person. If this is not proved the dispute is only civil in nature. The complainant has to show that at the time alleged false representation was made or the inducement was offered by the accused, the accused had no intention of honoring the same. If the accused had no intention to pay, but merely said that he would do so in order to induce the complainant to part with the goods, then a case of cheating could be established. In Swami BSSVVV Maharaj v State of AP the representation made by the accused was that he had divine healing powers through his touches and therby he induced the complainant to shell out money was held to be dishonest inducement. In such cases Court shall presume Cheating and the burden of proof is upon the accused to rebut the presumption.

Section 415 defines the offence of cheating which is made punishable by Section 417 and 420. Section 417 provides punishment for simple case of cheating where by person induced has not part with property. Section 420 deals with cheating whereby a person is dishonestly induced to deliver any property or where he is induced to alter or destroy a valuable security. Section 417 provides for imprisonment for a term which may extend to a year but an offender under Section 420 becomes liable for imprisonment upto 7 years. Section 416 deals with cheating by personation . A person is said to cheat by personation if he cheats by pretending to be some other person or by knowingly substituting one person for another. The offence is committed whether the individual personated is real or imaginary person. Section 419 deals with punishment for cheating by personation – 3 years imprisonment

Mischief Mischief is defined in Section 425 of IPC. It means causing destruction of property or any change in its situation that destroys or diminishes it value or utility with the intention or knowledge that he is likely to cause wrongful loss or damage to public or to another person. It is punishable under Section 426- Imprisonment upto 3 months. Illustration i ) A causes cattle to enter upon a field belonging to Z, intending to cause and knowing that he is likely to cause damage to Z’s crop. A has committed Mischief. ii) A voluntarily throws into river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief. iii) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss. A has caused Mischief.

The mere fact that any loss or damage was caused to the property would, by itself, not be sufficient cause to constitute mischief, unless the intention of the offender was to cause wrongful damage or there was knowledge that a particular act will result in wrongful loss or damage. For ex a person who blocks the canal through which complainant had a right to take water to his own land would be liable for mischief. In Byomkesh Bhattacharya v Lakshmi Narayan the accused persons prevented supply of water to the complainant’s house by using a valve. The question was whether this would amount to change in property such that it diminishes the value or utility thereof. High Court held that change in property does not necessarily mean a change in character, composition or form. It was clarified that if something is done to the property contrary to its natural use and serviceability that destroys or diminishes its value or utility, it will amount to mischief. Here stoppage of water resulted in diminution of value of pipe line and hence mischief was committed.

Aggravated forms of Mischief Section 429 - Mischief by killing or maiming cattle or animal of value of 50rs and upwards – Imprisonment upto 5 years Section 430 – Mischief by causing diminution of supply of water – Imprisonment upto 5 years Section 431 – Mischief by making any road, river, bridge etc less safe for travelling – Imprisonment upto 5 years Section 434 – Mischief by destroying or moving a landmark fixed by public authority – Imprisonment upto one year Section 436 - Mischief by fire or explosive substance on a place of worship, or a place of human dwelling or a place used to store property – Imprisonment for life. Section 440 – Mischief committed after preparation to cause death, hurt or wrongful restraint – Imprisonment upto 5 years.

Criminal Trespass Section 441 IPC defines the offence of Criminal Trespass. Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property is liable for the offence of Criminal trespass. If a person having lawfully entered into property, unlawfully remains there with intent to commit an offence or with intent to intimidate, insult or annoy any person in possession of such property is said to commit criminal trespass. Criminal trespass depends upon intention and not upon the nature of the act. For example if a person with intent to save his family and property from imminent destruction commits criminal trespass on his neighbor’s land he is not guilty of criminal trespass. A enters a house with intention of committing theft. However moved

poverty of the house he leaves. A will be liable for criminal trespass . The punishment for criminal trespass is discussed in Section 447. Whoever commits criminal trespass shall be punished with imprisonment upto 3 months or fine or with both. Aggravated forms of Criminal Trespass Section 442 – House trespass If any person commits criminal trespass by entering into or remaining in any building, meant for human dwelling, or for custody of property or as a place of worship, then he is liable for the offence of House trespass. Section 448 discusses the punishment for House trespass. Maximum period of imprisonment is one year. Section 443 – Lurking House trespass House trespass is committed after taking precautions to conceal his identity or presence from the person who has a right to exclude or eject him.

Section 444 discusses lurking house trespass by night. Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit lurking house-trespass by night. Section 445 discusses House-breaking. A person is said to commit house-breaking if he effects his entrance or quits the house, in any of the 6 ways described herein: i ) If he enters or quits through a passage made by himself. A commits house-trespass by making a hole through the wall of Z’s house. A has committed House-breaking ii) If he enters or quits through any passage not intended by any person for human entrance. A commits house-trespass by entering into Z’s house through a window. A has committed House-Breaking iii) If he enters or quits through any passage which he has opened in order to committing of any house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.

iv) If he enters or quits by opening any lock in order to committing of house-trespass A commits house-trespass by entering Z’s house through the door having opened a door which was fastened. A has committed house-breaking. v) If he effects his entrance or departure by using criminal force or committing assault Z is standing in door way. A forces a passage by knocking Z down and commits house-trespass by entering the house. This is house-breaking . vi) If he enters or quits by any passage which he knows to have been fastened against such departure or entrance and to have been unfastened by himself or any abettor. Section 446 discusses House-breaking by night. Whoever commits house-breaking after sunset and before sunrise is said to commit house-breaking by night.

Defamation Section 499 IPC defines the offence of Defamation. The ingredients of the offence of defamation are : i ) making or publishing an imputation concerning any person ii) means of such imputation are words, writing, signs or visible representation iii) such imputation must have been made with the intention of harming the reputation of that person or with the knowledge that such imputation will harm his reputation. Reputation is the estimation in which a person is held by others. A person’s own opinion of himself is not his reputation but it rather means the opinion of others about him. It is the opinion of community against a person. The esteem in which one is held in the society is one’s reputation.

Publication is one of the most essential ingredients of defamation. A ’s communication of defamatory matter about B, directly to B will not be publication. On the other hand, when A says something or writes something disparaging about the character of B to C, A has published something disparaging. Making a defamatory statement and communicating it to a person other than the person concerning whom it is written is said to be publication. In England, slander is criminally actionable only when it is seditious or blasphemous. Libel is criminally actionable only when it has tendency to provoke breach of peace. The IPC recognizes no such distinction and both are punishable if there is publication of defamatory material. The term publication includes repetition or republication of a libel already published. IPC makes no exception in favour of a second or third publication as compared with the first. The

The publisher of a defamatory matter is responsible even though he republishes the defamatory matter. Publication can be by i ) words spoken ii)written 3)signs and 4)visible representation. Visible representation would include a statue, a caricature, and effigy etc. Explanation I It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives. Explanation II It may amount to defamation to make an imputation concerning a company or an association or collection of persons. Defamation of an unidentifiable class does not come within the ambit of this explanation. If a person were to describe lawyers as thieves or police force as corrupt, there would not be

defamation because the class is too large and the generalization too sweeping to affect any of its members. The alleged defamation could not be referred to a determinate or identifiable section or class of lawyers as distinguished from the rest of the members of lawyers’ fraternity. Contrary to the general rule that anyone can file a criminal complaint irrespective of whether the complainant is the victim or not, in case of defamation the complaint can be filed only by the aggrieved party. Explanation 3 - Defamation by innuendo An imputation in the form of an alternative or expressed ironically, may amount to defamation. When the particular passage is prima facie non-defamatory, the complainant can show that it is really defamatory of him from the circumstances and nature of the publication. Prosecution should establish that words though innocent in appearance, were intended in a defamatory sense. The explanation by which the passage is said to be defamatory is called innuendo.

Explanation 4 No imputation is said to harm a person’s reputation unless that imputation lowers the intellectual or moral character of that person, or lowers the character of that person in respect of his caste or calling, or causes it to be believed that body of that person is in a loathsome state. Exceptions Provided in Section 499 The 10 exceptions to Section 499 state the instances in which an imputation prima facie defamatory, may be excused. They are occasions when a man is allowed to speak out or write matters, which would ordinarily be defamatory. i ) Imputation of truth for public good No amount of truth will justify a libel unless it is established that its publication is for public good. Truth when set up as a defence must extend to the entire defamation and not only a part of it.

ii) Fair criticism of Public Servants Any person occupying a public position renders himself open to criticism for his actions while discharging his functions. Such criticism must be in good faith and it must relate to actions of Public Servants. Good faith presupposes a reasonable degree of care and caution in making an imputation. The criticism to be fair must be based on facts truly stated and it must be an expression of writers real opinion made in good faith. Section 52 of IPC defines good faith. Nothing is said to be done in good faith which is done without due care and attention. However if the facts upon which the publication is sought to be excused, do not exist, the foundation of plea fails. A Man cannot invent facts and comment upon the facts so invented. iii) Fair comment on public conduct of men other than public servants This exception deals with men who do not occupy any office

but may play an active role in opposing or supporting the measures in which community is developed in. The conduct of publicists can be commented upon in good faith. The accused should prove that his expression of opinion was fair and honest and the alleged fact on which opinion was based was true. iv) Report of Proceedings of Courts of Justice The report should be made without malice and it should be fair and accurate. The report should be a substantially true one. v) Comment on Cases This exception protects bona fide comments on cases adjudicated, but not when they are still sub- judice . It is open to one to show that error was committed by Judges or jury. The comments must be confined to the merits of the case, conduct of parties, and the expression must be in good faith. A critic cannot call a judge a fool but he can point out that judge had misunderstood or misapplied the law.

vi) Literary Criticism The object of this exception is that public should have the benefit of free criticism of all public performances submitted to its judgment. The author should have published his work which means he has impliedly invited public criticism. The criticism must relate to merits of the performance and it must be made in good faith. A says of a book published by Z “Z’s book is foolish; Z must be a weak man.” A is within the exception if he makes the comment in good faith. vii) Censure by one in authority It allows a person under whose authority others have been placed either by their own consent or by the law, to censure in good faith those who are placed under his authority. A HOD censuring those under him in good faith; A parent censuring a child in good faith in presence of other children; a teacher

censuring a student in front of other students; a judge censuring in good faith the conduct of a witness etc. viii) Accusation preferred in good faith to authorised person This refers to a complaint made to a superior officer about conduct of his subordinate. The accusation must be made to a person who has authority over the party accused and the accusation must be preferred in good faith. A is complaining about the conduct of B who is a servant of Z, to Z. ix) Imputation made in good faith by person to protect his or other’s interest It covers cases of caution intended for good of the person to whom it is conveyed or for public good in good faith. In Harbhajan Singh v State of Punjab the accused published an article alleging that the CM’s son was a leader of the smugglers and the cases against him were being shelved up. The accused was able to prove the elements of good faith and public good.

Since both the elements were proved SC acquitted the accused. A, a shopkeeper in good faith warns B who manages his business – “Sell nothing to Z unless he pays ready money for I have no opinion of his honesty” A , a Magistrate in making a report to his own superior casts an imputation on the character of Z in good faith. A is protected. X) Caution intended for good of person to whom conveyed A is warning his friend B that C his dismissed servant, who now seeks employment under B is a dishonest man and ought not to be trusted. A is protected as long as the caution was in good faith. Section 500 IPC states that whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both. Section 501 IPC criminalizes the act of printing or engraving matters with the knolwedge that such matter is defamatory – 2 years imprisonment.

Subhramanian Swamy v UOI – Section 499 was held constitutionally valid and stated that criminalization of defamation was to protect individual dignity and it is a reasonable restriction on the freedom of speech and expression. In M.J.Akbar v Priya Ramani former Union Minister M.J.Akbar prosecuted journalist Priya Ramani for criminally defaming him. At the height of the # MeToo movement in 2018, Ms. Ramani accused Mr. Akbar of sexual harassment. In response, he filed a criminal defamation case against her in October 2018. Mr. Akbar claimed that Ms. Ramani’s tweet and her article accusing him of sexual harassment were defamatory, and lowered his reputation. He also said that Ms. Ramani didn’t produce any evidence to prove her story. However, Ms. Ramani pleaded truth as her defence in relation to the allegations of sexual harassment against Mr. Akbar. Delhi Court dismissed his complaint and acquitted Priya holding that “women have the right to put their grievances in any platform of their choice even after decades.”

OFFENCES AGAINST THE STATE Section 121 discusses the offence of waging war, or attempting to wage or abetting waging of war against govt of India. All states have the same right of preservation as their subjects. Any person taking part in organised armed attack on the constitutional authorities and the object of attack being subversion of Govt and establishment of another in its place would be guilty of waging war. The offence is punishable with death or imprisonment for life. In State of NCT of Delhi v Navjot Sandhu the imposition of punishment of death on accused on who abetted Parliament attack under Section 121 was held proper. Court held that the target chosen was Parliament the objective behind which was to launch a war against govt of India. Section 121 A - Conspiring to commit an offence under Section 121 or conspiring to overawe central or state govt - Imprisonment for life

Section 122 deals with collecting men, arms and ammunition with the intention to wage war against the state. The offence is punishable with imprisonment for life or for a term not exceeding 10 years. Section 124-A deals with the offence of Sedition. It means through words or signs a person has brought or tried to bring hatred or contempt towards the government. It means attempting to excite disaffection towards the government. Explanations 2 and 3 clarify that expressing disapprobation of measure of government without exciting or attempting to excite hatred or contempt towards the government do not constitute an offence under this section. In Kedarnath v State of Bihar the constitutional validity of Section 124-A was upheld. It was clarified that that words, deeds or writings constituted would constitute an offence under Sect 124-A, only when they had the intention or tendency to disturb public tranquility, to create public disturbance or to promote disorder.

Comments however strongly worded expressing disapprobation of actions of government without inciting those feelings which generate inclination to cause public disorder by acts of violence would not be penal. Disloyalty to government established by law imply excitement to public disorder or use of violence. In 1995, the Supreme Court, in Balwant Singh v State of Punjab , acquitted persons from charges of sedition for shouting slogans such as “ Khalistan Zindabaad ” and “Raj Karega Khalsa ” outside a cinema after Indira Gandhi’s assassination. Instead of looking at the “tendency” of the words to cause public disorder, the Court held that mere sloganeering which evoked no public response did not amount to sedition, for which a more overt act was required; the accused did not intend to “incite people to create disorder” and no “law and order problem” actually occurred. Sedition or attempt to cause sedition is punishable by imprisonment for life or with imprisonment which may extend to 3 years.

Offences against Public Tranquility Section 141 deals with unlawful assembly. An assembly of 5 or more persons is designated an unlawful assembly if the common object of that assembly is: 1) to overawe by criminal force central/state govt or any public servant in exercise of his powers II) To resist the execution of law or legal process III) To commit mischief, criminal trespass or any other offence IV) By criminal force to take or obtain possession of any property or to deprive any person of any incorporeal right V) By criminal force to compel any person to do what he is not legally bound to do or to omit what he is legally entitled to do. Section 142 makes it clear that if a person remains in an

unlawful assembly after he became aware that the assembly was unlawful, he shall be deemed to be a member of unlawful assembly. In order to attract Sect 142 one should either intentionally join an assembly knowing that it is an unlawful assembly or continue to be a member after being aware of the fact that an assembly though not unlawful at its inception has subsequently turned out to be so. Continues means physical presence with the knowledge of unlawful character of the assembly. Section 143 states that whoever is a member of an unlawful assembly, shall be punished with imprisonment which may extend to 6 months. Section 146 defines the offence of Rioting . Whenever force or violence is used by a member of an unlawful assembly every member of such assembly is guilty of offence of rioting. Section 147 states that whoever is guilty of rioting shall be punished with imprisonment which may extend to 2 years.

Section 149 states that every member of the unlawful assembly is guilty of offence committed in prosecution of the common object or the act done was something which the accused knew would be likely to be committed in prosecution of common object. Prosecution need not establish any specific overt act to any of the accused for fastening liability with aid of Section 149. In K.C.Mathew v State of Travancore-Cochin people gathered at dead of night with crackers, sticks and choppers to rescue persons who were guarded by armed police. It was held that they must have known that murder will be committed and conviction for murder-cum-rioting was justified. An assembly which at its commencement is lawful, may subsequently become unlawful. The expression in prosecution of common object is interpreted as meaning in order to attain the common object. Common object is determined keeping in view the nature of the assembly, arms carried by members and behaviour of members at or near the scene of incident.

Section 153A criminalizes promoting enmity between classes. Whoever by words signs or visible representations promotes or attempts to promote disharmony or feelings of enmity between different groups on grounds of religion, race, place of birth residence, language caste or community or does any act which is prejudicial to maintenance of harmony between different groups will be liable under this section. In Bilal Kaloo v State of AP the accused was member of a group whose ultimate aim was to liberate Kashmir from India. He was accused of propagating that in Kashmir, Muslims were being subjected to atrocities by Indian Army. However SC identified that Sect 153A cannot be invoked because ‘ he was merely inciting the feeling of one community without any reference to any other community or group.’ Section 153B – whoever by words or by signs imputes that any class of persons by reason of their religion language or caste cannot be faithful to the Constitution of India or cannot uphold integrity of India shall be imprisoned with a term of 3 years.

Section 159 defines the offence of Affray . When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an “affray.” It is punished by one month imprisonment. (Sect 160).To constitute Affray fighting must take place in a public place. The place where the public are in the habit of going is deemed to be public for the purposes of this offence. A railway platform, a theatre hall, a public urinal, a market, a public ferry and a passenger train are all public places. Some fight at public place is necessary to constitute the offence. Mere exchange of abusive, threatening words without exchange of blows does not amount to fight. Fighting means quarrel accompanied by a use of force. Such fighting must disturb public peace also by creating a general alarm. An affray cannot be committed in a private place unlike a riot. A Riot requires a minimum of 5 pesons but affray requires only 2 persons. Riot can happen only when there is an unlawful assembly.

FALSE EVIDENCE Section 191 defines the offence of False evidence. Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes a statement which is false or which he does not believe to be true is said to give false evidence. A being bound by an oath to state the truth, states that he believes a certain signature to be of the handwriting of Z, when he does not believe it to be the handwriting of Z. A has given false evidence. The falsity of the statement must be known to the maker at the time of making of the statement. The burden of proving falsity of statement is on the prosecution. Section 192 defines the offence of fabricating false evidence. It means causing any circumstance to exist, or making any false entry in any book or record or making a document containing a false statement with the intention that it may appear as

evidence in a judicial proceeding or in a proceeding taken by law before a public servant or an arbitrator. Such an act is done with the intention that it may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any material point. A puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. The evidence fabricated must be intended to be used in a judicial proceeding and the offence is complete as soon as fabrication is complete. It would be immaterial that the proceedings had not commenced or the evidence fabricated has not been actually used. Section 193 – Punishment for giving/fabricating false evidence to be used in a judicial proceeding – 7 years imprisonment Punishment for giving/fabricating false evidence in any other case – 3 years imprisonment.

OFFENCES AGAINST PUBLIC JUSTICE Section 201 deals with causing disappearance of evidence, or giving false information to screen offender. The accused had knowledge that an offence has been committed and i )he caused disappearance of evidence of commission with the intention of screening the offender or ii) he had given false information with the intention of screening the offender. In Suleman Rahiman v State of Maharashtra the accused who was driving a jeep struck the deceased as a result of which he sustained serious injuries. The accused cremated the body of the victim and he was charged with Section 304A and 201 IPC. Since there was no evidence to show that the accused had driven the jeep in a rash manner no offence under Sect 304 A was made out. When no offence under Sect 304A was made out there was no question of causing disappearance of evidence by cremating the body.

In Kalawati v State of HP the accused Kalawati developed extra-marital relationship with another person and this person murdered her husband. Kalawati made a statement that some unknown dacoits had invaded her house, killed her husband and robbed her of her jewels. Kalawati was acquitted of the charge of murder but she was held liable for the offence under Section 201. SC clarified that “ Sect 201 is not restricted to case of a person who screens the offender it can be applied to a person guilty of the main offence, though as a matter of practice, a court will not convict a person both of main offence and under Sect 201 . ” The accused would be punished depending on the seriousness or graveness of crime. If the offence from which offender is shielded is one punishable by death, then imprisonment of 7 years can be imposed. If the offence screened is punishable with Life Imprisonment, then sentence prescribed is imprisonment upto 3 years. If the offence shielded is one in which punishment prescribed is less than 10 years then sentence prescribed is 1/4 th part of longest term of imprisonment.

OFFENCES AFFECTING PUBLIC HEALTH DECENCY AND MORALS Section 268 defines the offence of Public Nuisance. Public nuisance is a common annoyance and it cannot be excused on the ground that it causes some convenience. In Public Nuisance the act or omission causes any common injury or danger to people in general or who dwell or occupy property in the vicinity, or it can be an act/omission which necessarily cause injury, obstruction danger or annoyance to person who may have occasion to use any public right. It is no defence to a charge of public nuisance that act was done in one’s own property or that it had been done from time immemorial. Public nuisance is based on the principle embodied in civil law sic utere tuo ut rem publicum non laeds which mean enjoy your property in such a way as not to injure the rights of the public.

The actual causing of injury is not necessary. It is sufficient if the act or illegal omission is of such a nature that it must necessarily cause injury, danger or annoyance to anyone who may have the occasion to use a public right, such as persons entitled to use a highway or a navigable river. Even a lawful trade may sometimes become a nuisance, if it interferes with the comfort and peace of the neighbours or if it becomes a health hazard. In Gobind Singh v Shanti Sarup a baker had constructed an oven and a chimney where he baked his products. Smoke emitted by the chimney was very high and a very strong wind could carry the flames over a distance and cause a conflagration. It was held to be injurious to health of the people. The negligent blasting of stone in a quarry so as to endanger safety of persons living in the vicinity is a public nuisance. In Byramji Edalji’s case certain Jains complained against the accused’s act of cutting meat on the verandah of his house in

sight of the complainants who were neighbours of the accused. The exposure of meat although revolting to feelings of Jains , was held to be not sufficient to constitute a nuisance. But if in such a case the slaughter had been made in public, so that groans and blood of slaughtered beasts heard and seen by passerby, such an act would constitute the offence of Public Nuisance. In K Ramakrishnan v State of Kerala, the Kerala High Court held that tobacco smoking in public places in the form of cigarettes or beedis falls within the mischief of Public Nuisance. Relying on Article 21 of Indian Constitution, the High Court declared that public smoking of tobacco is unconstitutional. If any portion of a public road is encroached upon, it would cause obstruction to persons who may have occasion to use the highway and the act would constitute Public Nuisance. If a prickly pear is allowed to be spread on the road used by public it would amount to public nuisance. One who appropriates a

part of a street by building over it or one who fills up a drain or a person who places bamboo stockade across a navigable river obstructing the passage of river etc would constitute the act of Public Nuisance. Nuisance are of 2 types, Public or Private. Public nuisance will affect the public and cause annoyance to all citizens while private nuisances are those which are done to hurt or cause annoyance to another or the lands of other. Since Private Nuisance affects only certain persons they do not form the subject matter of public prosecution. Where however, besides being injurious to a private person they are detrimental to the public, they are treated as Public Nuisance and are punishable by Public Prosecution. Section 269 - Negligent Act likely to spread infection of disease dangerous to life – Imprisonment upto 6 months. Section 279 – Rash driving or riding in a public way – 6 months.

Obscenity Section 292 and 293 deals with obscenity. Section 292 (1) explains the scope of obscenity and 292(2) punishes a person who sells, distributes, or publicly exhibits an obscene book, pamphlet, painting drawing etc. Section 292(1) says that a thing is obscene if it has the tendency to deprave and corrupt those whose minds, who are likely to see, read or hear it. In Bobby International v Om Pal Singh Hoon there was a demand to ban exhibition of film Bandit queen on the ground that it showed scenes of rape and nudity. SC held that scenes of rape and nudity shown in the film did not amount to obscenity as they were not intended to arouse prurient or lascivious thoughts but revulsion against perpetrators and pity for the victim.

The test for obscenity was laid down by the SC in the case of Ranjit D Udeshi v State of Maharashtra. Hicklin’s test laid down in Rv Hickin was adopted as the test for obscenity. Hicklin’s test said that if the matter has a tendency to deprave and corrupt the minds of those who are open to such immoral influences then it is obscene. However in Aveek Sarkar v State of W.B this test was substituted for Contemporary Community Standard Test . In this case Sports World a widely circulated magazine in India reproduced an article with a photograph where world renowned Tennis Player Boris Becker had posed nude with his fiancee to send out a message against Apartheid. A complaint was filed alleging that unless these kind of obscene photographs are censured and banned the dignity of the womanhood would be in jeopardy. SC clarified that the photograph should be appreciated in the light of message it wants to convey and there

nothing obscene about it. They also held that Hicklin test is not the correct test to be applied and obscenity is something which has to be determined from point of view of an average person, by applying contemporary community standards. Only those materials which have a tendency to excite lustful thoughts can be held to be obscene but it will be judged from view point of an average man. Offence under Section 292 is punishable with imprisonment upto 2 years and upon subsequent conviction the punishment can go upto 5 years. Section 292 contains certain exceptions they are: a) publication, painting, representation, writing etc for public good as it is in the interest of science, literature or art b) any representation sculptured engraved, painted in any ancient monument or in any temple.

OFFENCES RELATING TO RELIGION Section 295 deals with destruction, damage or defilement of any place of worship, or any object held sacred by a class of persons. Such destruction must be done with the intention of insulting the religion of a class of persons or with the knowledge that a class of persons is likely to consider such destruction an insult to their religion. Punishment can be given upto 2 years. Section 295-A deals with deliberate and malicious acts intended to outrage religious feelings of any class, by insulting its religion or religious beliefs. The insult or attempt to insult can be by words either spoken or written or by signs or by visible representation. The Court has reiterated in many cases that the basic requirement of Article 295-A is that the accused must act deliberately or maliciously. Where a person willfully does an act which is injurious to another without lawful excuse, it is said he has done the act maliciously.

Offence under Section 295A shall be punished with imprisonment for a term which may extend to 3 years. Section 296 deals with disturbing the performance of a lawful religious assembly. The assembly may be engaged in the performance of religious worship or religious ceremonies. A religious procession is also regarded as lawful assembly engaged in performance of religious worship. This section does not cover individual worship. Offence is punishable with imprisonment up to one year.

OFFENCES RELATED TO DOCUMENTS FORGERY Section 463 defines the offence of Forgery. It is defined as making of a false document or false electronic record with intent to cause damage or injury to public or any person, or to support any claim or title, or to cause any person to part with property or with the intent to commit fraud. Making of a false document is defined in Section 464. 1)A person who makes signs, seals or executes a document or part of a document with dishonest or fraudulent intention has made a false document 2) A person who without lawful authority dishonestly or fraudulently alters a document in any material part after it has been made or executed by another person has has made a false document 3) A person who dishonestly or fraudulently causes any person to sign, seal or alter a document knowing that such person by reason of his unsoundness of mind

Intoxication cannot understand the contents of the document or the nature of alteration has made a false document. Illustrations A has a letter of credit upon B for rupees 10,000 written by Z. A in order to defraud B, adds a cipher and makes the amount 1,00,000. A has committed forgery. A, without Z’s authority affixed Z’s seal to a document purporting to be a conveyance of an estate from Z to A. A has committed forgery. A leaves with B his agent a cheque on a banker wihout inserting the sum payable and authorizes B to fill up the cheque with a sum not exceeding Rs.10000. B fills up the cheque by inserting twenty thousand rupees. B has committed the offence of forgery. Z’s will contains a direction to divide his property between A, B and C. A dishonestly scratches out B’s name. A is liable for forgery.

Z dictates his will to A. A intentionally writes down a different legatee from the one named by Z and represents to Z he has prepared the will according to his directions, thereby inducing him to sign the will. A has committed the offence of forgery. A writes a letter and signs it with B’s name without B’s authority, certifying that A is a man of good character and uses it to obtain alms. A has committed the offence of forgery. Explanation 1 – A man’s signature of his own name may amount to forgery. For ex; A signs his own name to a bill of exchange, intending that it may be believed that bill was drawn by another person of the same name. Explanation 2 – The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that document was made by person in lifetime, may amount to forgery.

In G.S.Bansal v Delhi Administration the father of the accused had deposited some amount as security to obtain a licence to ration depot. The accused after death of his father, affixed signature of his Father to the form demanding return of security amount and received the amount. He was charged with the offence of Forgery. SC held that there were 2 ways by which he could obtain the money i ) after obtaining a succession certificate he could make an application ii) after waiting for a period of 3 months he could satisfy the Post Master General about it complete formalities and recover money. SC noted that in the first way he would incur expense to obtain succession certificate and in the second he would have to wait for 3 months. Thus by circumventing the process accused gained both financially and also ‘non-economic advantage’. So here he had made the document both dishonestly and fraudulently and he was liable for Forgery.

Section 465 - Punishment for Forgery – Imprisonment up to 2 years Section 466 deals with forgery of following type of documents: a) Court recordings and Pleadings b) Register of Birth, death, baptism, marriage or register kept by a public servant c) Certificate or document purporting to be made by a public servant in his official capacity. d) Power of Attorney Imprisonment upto 7 years. Section 467 – Forging a document which purports to be a valuable security or will, or which give authority to any person to make or transfer any valuable security or which gives authority to any person to receive the principal, interest or dividends on a valuable security is punishable by life imprisonment.

ASSAULT AND CRIMINAL FORCE Criminal Force is defined in Section 350 IPC. Criminal Force is said to be used over a person when intentionally he is subjected to force without his consent, with intention to commit an offence, or with intention to cause injury, fear or annoyance to him. Illustration Z is sitting in a moored boat. A unfastens the moorings and causes the boat to shift down the stream. If A has done this without Z’s consent in order to commit any offence or knowing that he is likely to cause annoyance, injury or fear he has used criminal force on Z. Z is riding a horse. A lashes at Z’s horse without Z’s consent and it quicken its pace. Here A has caused change of motion to Z by inducing the animal and A has used criminal force on Z. A incites a dog to spring upon Z, without Z’s consent. Here if A intends to cause injury, fear or annoyance to Z, he uses criminal force

Assault is defined in Sect 351 IPC. Any person who makes any gesture, knowing it to be likely that such gesture will cause the other person to apprehend use of criminal force is said to commit an assault. Mere words do not constitute assault. But use of words accompanied with gesture and preparation may cause another to apprehend that criminal force is about to be used. There must be some threatening physical act done by the accused by which he causes another to apprehend that criminal force is about to be used against him. The person threatening must be in a position to carry his threat into effect. Assault is something less than the use of criminal force. In assault there is merely apprehension of use of force and no use of actual force. Sect 352 – Assault or criminal force otherwise than on grave provocation – Imprisonment upto 3 months. Sect 353- Assault/ crimnal force to deter a public servant from discharge of his duty – Imprisonment upto 2 years.

Section 354 punishes whoever assaults or uses criminal force on any woman with the intention or knowledge of outraging her modesty. Punishment provided is 5 years imprisonment. The test for ascertaining whether modesty has been outraged is whether the action of the offender is capable of shocking the sense of decency of a woman. What constitutes modesty is nowhere defined. It is a virtue attached to a woman owing to her sex. In State of Punjab v Major Singh the victim was a seven and a half months old child. It was argued before the Court that since the Child concerned had not developed sufficient sex instinct, it could not be said that her modesty was violated. SC refused to buy this contention. It held that “she may be an idiot, she may be under the spell of anaesthesia , she may be sleeping, she may be unable to appreciate the significance of the act, nevertheless the offender is punishable. It was also held from the very birth she possess the modesty which is the attribute of her sex.

In R.D Bajaj v KPS Gill & Anr the petitioner was an IAS officer. During a party the accused touched her inappropriately. The HC quashed the FIR on the ground that the kind of harm allegedly caused was trivial in nature and Sect 95 was attracted. SC held that quashing of FIR was illegal and held that when an offence relates to modesty of a woman, under no circumstances could it be termed as trivial. Section 354-A deals with sexual harassment and punishment for sexual harassment. It criminalizes the following offences: 1) Physical contact and advances involving unwelcome and explicit sexual overtures 2) A demand or request for sexual favours 3) Showing pornography against the will of the woman 4) making sexually coloured remarks. The offences from Sub-section (1) to (3) shall be punished with imprisonment which may extend to 3 years and offence under Sub-section (4) is punished by one year imprisonment.

Section 354B criminalizes the use of criminal force with the intention of disrobing a woman. The minimum punishment is 3 years but maximum is 7 years. Section 354C punishes the offence of Voyeurism. It provides that any man who watches or captures the image of a woman engaging in a private act commits an offence. Private act includes an act of watching carried out in a place which in the circumstance woud reasonably be expected to provide privacy. Explanation 2 makes it clear that where the victim consents to capture the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be an offence under this section. Upon first conviction the minimum punishment provided is one year and it may go upto 3 years and on subsequent conviction the minimum punishment is 3 years and it may extend to 7 years.

Section 354D punishes the offence of Stalking. Any man who follows a woman and contacts or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman would be criminally liable. Also any man who monitors the use by a woman of internet, e-mail or any other form of electronic communication is also made liable for this offence. Upon First conviction he shall be punished for a period of 3 years and upon subsequent conviction he shall be punished for a period of 5 years.

OFFENCES RELATED TO MARRIAGE Section 493 – Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. This Section punishes a man who induces a woman to think she is lawfully married to him and as a result of which she submits herself to cohabitation or sexual intercourse with him. The offence is punishable for a term which may extend to 10 years. Section 494 punishes the offence of Bigamy . This section is applicable to all religions except Muslims. In case of Muslims it applies only to females but not to males because under Muslim Personal Law a male can have 4 wives at a time but a female is not permitted to have more than one husband at one time. It requires the following ingredients: 1) Accused was already married and that marriage was a valid one 2) the person whom he or she has married is alive 3) Accused marries again

In Sarla Mugdal v UOI the question whether a Hindu Husband would be guilty of offence of bigamy under Sect 494 IPC, when he originally married under Hindu Law and subsequently converts to Islam and marries for a second time came up for consideration. SC clarified that Spouses cannot escape liability under Sect 494 IPC by resorting to conversion to Islam or any other religion. It was clarified that if a marriage is solemnised under a particular personal law, it cannot be dissolved by the application of another personal law to which one of the spouses converts. One spouse by changing his or her religious beliefs cannot forcefully enforce his or her newly acquired personal law on a party to whom it is alien. [Also refer Lily Thomas v UOI] Section 497 criminalized the offence of Adultery. A man who is having sexual intercourse with a married woman without the consent of her husband was made liable for the offence of Adultery.

In order to attract this Section the man should know or have reasons to believe that such woman is the wife of another man. Another requirement of law is that adultery complained of has not been committed either with the consent or connivance of husband. The woman although married should be a willing partner to sexual intercourse. If the accused has sexual intercourse without the consent of woman then it would amount to rape. Section 497 expressly exempted women from prosecution and from being charged as an abettor. The contemplation of law was that the wife, who is having an illicit relationship with another man is a victim. In Joseph Shine v UOI SC struck down the offence of Adultery. Loss of moral commitment in a marriage creates a dent in the relationship, but it is left to each individual to deal with the problem — some may forgive while others may seek

divorce. Punishing the wife’s lover is unlikely to re-kindle commitment, the judgment said. Section 497 treats a married woman as the commodity of her husband, the Bench held. Adultery is not a crime if the cuckolded husband connives or consents to his wife’s extra-marital affair. Section 497 treats a married woman as her husband’s “chattel”. The provision is a reflection of the social dominance of men prevalent 150 years ago, the judgment said. The Bench, held that Section 497 is based on the Doctrine of Coverture . This doctrine, not recognised by the Constitution, holds that a woman loses her identity and legal right with marriage, is violative of her fundamental rights. Section 498A deals with cruelty by husband or relatives of husband towards a woman with the intention of coercing her to meet any unlawful demands for any property. The object of Section 498A is to prevent torture to a woman by her husband or relatives in connection with demand for dowry.

Section 498A, 304B of IPC and Section 113B was introduced in Evidence Act for curbing the rampant evil of Dowry. Section 113B of Evidence Act provides that if it was shown that soon before the death of a woman she was subjected to cruelty or harassment by a person in connection with demand for dowry, then it shall be presumed that such person who harassed the woman had caused the death of the person. The offence under Sect498A is restricted to only acts of commission or omission done by the husband or his relatives. The ‘relative’ has not been defined but a friend however close he is to the family of husband, cannot be prosecuted under this section. Imprisonment period – 3 years. In Reema Aggarwal v Anupam & Ors it was argued that a person who marries another lady during the subsistence of his earlier legal marriage is not ‘husband’ within the meaning of Sect 498A and hence the second wife cannot invoke this section for

cruelty and harassment caused to her by him or relatives. However SC rejected the contention and held any person who has undergone some or other form of marriage and thereby assumed for himself the position of husband can be made liable under Sect 498A. In John Idiculla & Anr v State of Kerala it was held by the Kerala HC if the second wife whose marriage is not strictly legal but she is treated as wife by the Husband, relatives or society commits matrimonial cruelty on legally wedded wife, she cannot be alleged to wriggle out of criminal liability under Sect 498A. She can be considered as relative of the husband for the purpose of Sect 498A. The explanations to Sect 498A clarifies what amounts to cruelty. A) any willful conduct which is likely to drive the woman to commit suicide or to cause any grave injury or danger to life, limb or mental or physical health of the woman is cruelty.

B) Harassment of woman with a view to coerce her or her relatives, to meet unlawful demand for any property or valuable security, is cruelty. Cruelty includes both mental and physical cruelty. What amounts to cruelty is a question of fact. When there is no intent to on the part of husband of a woman or his relatives to injure her, a conduct though willful and hurts her feelings, does not amount to cruelty. The word ‘harassment’ means to torment a person through constant intimidation. SC has clarified that Cruelty is a continuing offence and hence every act of cruelty would be a new starting point of limitation. In Sushil Kumar Sharma v UOI the constitutional validity of Sect 498A was challenged on the ground that it has been misused.SC repelled the arguments and held mere possibility of abuse of a statutory provision does not per se make a provision of law objectionable and ultravires of the Constitution.

Criminal Intimidation and Annoyance Criminal intimidation (Sect 503) occurs when a person is threatened with injury to person, reputation or property with the intent to cause alarm to that person, or to cause that person to do an act which he is not legally bound to do. Even though the offence of Intimidation is akin to offence of extortion as defined in Sect 383, there exists several differences: i ) In Extortion offence is committed in presence of offender. In intimidation it need not be so. ii) In extortion the delivery of property is the essence. In intimidation there is no delivery of any property. The immediate purpose is to induce the threatened person to do something. In order to be liable for criminal intimidation, injury threatened to be caused must be illegal. Thus if a shopkeeper is threatened with picketing it would amount to intimidation.

Sect 506 describes the punishment for intimidation. Period of imprisonment is 2 years. However the punishment can go upto 7 years of imprisonment if intimidation falls in following categories : a) threat to cause death or grievous hurt b) threat to cause destruction of property by fire c) threat to cause offences punishable by death, Life imprisonment or imprisonment which may extend to 7 years. Section 504 – Intentional insult with intent to provoke breach of peace – Imprisonment upto 2 years. An act of insulting another by itself, does not amount to an offence, unless it contains essential ingredient, the intention or knowledge that the insult would provoke another person to cause breach of peace or commit another offence.

Indian penal code- law of crimes full notes

About This Presentation

Slide Content

Tags

Categories

Download

Quick Actions

Statistics

Related Slideshows

Indian penal code- law of crimes full notes

About This Presentation

Slide Content

Slide 1

Slide 2

Slide 3

Slide 4

Slide 5

Slide 6

Slide 7

Slide 8

Slide 9

Slide 10

Slide 11

Slide 12

Slide 13

Slide 14

Slide 15

Slide 16

Slide 17

Slide 18

Slide 19

Slide 20

Slide 21

Slide 22

Slide 23

Slide 24

Slide 25

Slide 26

Slide 27

Slide 28

Slide 29

Slide 30

Slide 31

Slide 32

Slide 33

Slide 34

Slide 35

Slide 36

Slide 37

Slide 38

Slide 39

Slide 40

Slide 41

Slide 42

Slide 43

Slide 44

Slide 45

Slide 46

Slide 47

Slide 48

Slide 49

Slide 50

Slide 51

Slide 52

Slide 53

Slide 54

Slide 55

Slide 56

Slide 57

Slide 58

Slide 59

Slide 60

Slide 61

Slide 62

Slide 63

Slide 64

Slide 65

Slide 66

Slide 67

Slide 68

Slide 69

Slide 70

Slide 71

Slide 72

Slide 73

Slide 74

Slide 75

Slide 76

Slide 77