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Chapters
1. General Principles of Criminal Liability:

Mens rea and Actus reus 285
2. Preparation and Criminal Attempt 289
3- General Exceptions 294
4- Joint and Constructive Liability 305
5- Abetment 309
6. Criminal Conspiracy 312
7- Sedition 316
8. Culpable Homicide and Murder 318
9- Theft, Extortion, Robbery & Dacoity 331

10. Criminal Misappropriation and Breach of Trust 339
L GENERAL PRINCIPLES OF CRIMINAL LIABILITY:
MENS REA AND ACTUS REUS
Criminal law is a branch o f public law. In the criminal proceedings. State is a party
as crime is not only a wrong against the individual but also against the whole society.
Criminal law is confined within very narrow limits, and can be applied only to
definite overt acts or omissions capable o f being distinctly proved, which acts or
omissions inflict definite evils. Crime is what the State has, by an act o f the Legislature,
definitely declared as punishable. In other words, there is no such thing as 'crime’
apart from legislative recognition thereof.
The criminal law o f India is codified in the Penal Code. I860, and in the
Criminal Procedure Code. 1973. Whereas the Penal Code is the substantive law, the
Criminal Procedure Code is the adjective or procedural law. The provisions o f the
Penal C ode does not affect the provisions o f any special or local law.
Though by virtue o f Sec. 2 of the Penal Code “ every person" is liable to
punishment under the Penal Code, the criminal courts have no jurisdiction to try
certain persons even if they have transgressed the provisions o f the Code, viz. President
and Governors, Foreign Sovereigns, Ambassadors, Diplomatic agents. Alien enemies.
Foreign army and Warships. The word "person”includes a company or association.
Thus, a corporation is liable to punishment under the Code. In criminal law, the
principal or master can be held responsible for the acts o f his agents or servants only
where it is proved that he had instigated or otherwise abetted the acts o f the person
who actually committed the crime.
Actus reus and Mens rea

The Penal Code nowhere defines what a crime is. A ‘ crime’can be said to be an act
o f commission or omission, contrary to law, tending to the prejudice o f a community,
for which punishment can be inflicted as the result of judicial proceedings taken in
the name o f the State. When a person commits a wrong, he is said to be liable for
it. Criminal liability arises when a person commits an act which is criminal in nature.
A criminal offence is only committed when an act, which is forbidden by law, is done
voluntarily. It is only voluntary acts which amount to offences.
In law, crime consists o f two elements - actus reus and mens rea. The former
represents the physical aspect o f crime and latter represents its mental aspects.
reus has been defined as "such result o f human conduct as the law seeks to prevent"
An act may be positive or negative (omission). M en ijza is a loose term o f elastic
signification and covers a wide range o f mental states and conditions, the existence
o f which would give a criminal hue to actual reus.
There might be actus without mens rea. Thus, for example, if an infant o f 2
years while playing with a loaded pistol lets it go and kills another person, there is
[285]
286 Law Guide for Competitive Examinations
actus reus without mens rea. There might also be mens rea without actus reus. In
ethics or religion an evil deed may be committed in mind and might constitute a
wrong, even though it has not manifested itself in physical conduct.
It may further be noted that mens rea as such is not punishable. Thus if A has
intention to kill B, A cannot be brought to the court on that ground; some act has to
be done by A e.g., if A is discovered with a loaded gun in the compound o f B, then
A has done some act and he may be guilty. There are some exceptions to the general
rule that intention as such is no crime, e.g. intention to commit some treason (crime
against State) or conspiracy to commit a crime. However, sometimes an act alone is
sufficient to constitute a crime without the existence o f mens rea.
The guilty intent is not necessarily that o f intending the very act or thing done
or prohibited by law, but it must at least be the intention to do something wrong.
Criminal intention is ‘"the purposiveness or design o f committing an act forbidden by
criminal law without just cause or excuse.” An act is intentional when it is the
outcom e o f the determination o f the person’s will and is foreseen and desired by the
person. Thus, mens rea requires both a will direct to a certain act and knowledge as
to the c o nsequences that will follow from a particular act.
English jurists give the name o f mens rea to the volition which is the motive
force behind the criminal act. Sometimes it is used to refer to a foresight o f the
consequences o f the act and at other times to the act per se irrespective o f its
consequences. In som e cases it stands for a criminal intention o f the deepest dye, such
as is visible in a designed and premeditated murder committed with a full foresight
o f its fatal consequences. In other cases it connotes mental conditions o f a weaker
shade such as are indicated by words like knowledge, belief, criminal negligence or
even rashness in disregard o f consequences.
Thus, the mental elements of different crimes differ widely. ‘ Mens rea’means
in the case o f murder, malice aforethought; in theft an intention to steal: and inxape,
an intention to have forcible connection with a woman without her consent. In some
cases, it denotes mere inattention e.g. in case o f manslaughter by negligence.
^xfKeius non facit reum, nisi mens sit rea

The fundamental principle o f penal liability is actus non facit reum, nisi mens sit reay
i.e., the act itself is not criminal unless accompanied by a guilty mind. It may be noted
that m ensjjea must extend to all the three parts o f an act, viz. (i) the physical doing
or not doing, (ii) the circumstances, and (iii) the consequences. If the mens rea does
not extend _to any part o f the act, there will be no guilty, mind behind the act.
Thus, there are basically three factors o f proving criminal liability:
(a) origin in some mental or bodily activity,
(b) its circumstances, and
(c) its consequences.
Criminal liability lias to be established by the proof o f some act which is
dangerous from the legal point o f view and at the same time, the proof o f actual
damage which is commonly necessary in cases o f civil liability is not required. Criminal
liability is mainly penal (i.e. punishment is a predominant feature o f criminal
proceedings). As far as “ measure o f criminal liability”is concerned, three factors are
Indian Penal Code 287
taken into account in determining the appropriate measure o f punishment- (i) motive
behind the crime, (ii) magnitude o f offence, and (iii) character o f offender. As intention
is an abstract idea, it is difficult to establish it and the help is taken o f surrounding
facts or factors.
Mens rea (Guilty mind) and Motive (‘

Why the act was done')
Motive is something which prompts a man to form an intention. In other words, it is
ulterior intention; while intention is immediate mental condition. Intention relates to
means whereas motive relates to the end. Motive though not a sine qua non for
bringing the offence home to the accused, is relevant on the question o f intention.
Motive is basically a clue to the intention.
Where there is clear proof o f motive for the crime, this lends additional support
to the court’s finding that the accused was guilty but the absence o f clear proof o f
motive does not necessarily lead to the contrary conclusion. There may be an offence
without a motive in same way in which the strongest motive may not impel a person
to commit an offence. It may be noted that purity o f motive cannot absolve a person
from criminal liability. Thus, if a person decides to kill his starving children because
he feels that they will pass on to a better world, his motive is good but his intention
is wrong.
Motive for an act cannot become a litmus test to determine the criminal
characteristics. Where there is direct evidence against the accused, the motive becomes
immaterial. But where there is circumstantial evidence, absence o f motive is favourable
to the accused. In criminal law; the general rule is that motive is irrelevant and only
intention is relevant. However, the motive becomes relevant in certain cases. In
‘criminal attempts’ , it is the motive which makes the act wrongful though the act in
itself may not be wrongful. Further, motive becomes relevant in cases where a particular
intention forms a part o f the definition o f a criminal offence. In civil liability (e.g.
defamation and malicious prosecution) motive assumes relevance.
Mens rea when Not Essential: Strict Liability

Although mens rea is a sacrosanct principle o f criminal law, it can be waived in
certain circumstances. The following are the exceptional cases in which mens rea is
not required in criminal law :
lens rea is not essenti;iafiqxespect o f five offences in LP.C namely - Sec.
12] (waging war), S' 363i(kidnapping and
(sedition), Secs.(359)and(363j<
abduction), and Sec. (counterfeiting coins).
Thus, where the accused is charged with kidnapping a minor girl, his plea that
he honestly believed that the girl was not minor was not accepted by the court.
Similarly, a person who attempts to pass a counterfeit currency note or in whose
possession such notes were found, should not be permitted to raise plea that he was
not aware o f notes being counterfeit, unless the person is an ignorant and illiterate
villager.
(2) Where a statute imposes strict liability, the presence or absence o f a guilt)
mind is irrelevant. Several modem statutes passed in the interests o f public
safety and social welfare impose such strict liability, e.g. The Motor Vehicles
Act; The Arms Act; Narcotic Drugs and Psychotropic Substances A ct, 1985;
The Public Liability Insurance Act, 1991; etc. Similarly, in other statutory
offences like bribing, smuggling, Forex violations, sale o f adulterated articles,
etc., the guilty mind is not taken into account by the courts.
The underlying principle o f justification for such statutory offences is pointed
out by R oscoe Pound: “Statutory crimes express the needs o f society. Such statutes
are not meant to punish vicious will, but to put pressure on the thoughtless and
inefficient to do their whole duty in the interest o f public healthTsafety or morals.”
(3) When it is difficult to prove mens rea, where the penalties are petty fines and
where a statute has done away with the necessity o f mens rea on the basis
o f expediency, strict liability in criminal law may be imposed, e.g. parking
offences.
(4) Public nuisance is another exception to the doctrine o f mens rea.
(5) Another exception that might be mentioned here is related to the maxim
“Ignorance o f the law is no excuse”. If a person violates a law without the
knowledge o f the law, it cannot be said that he has intentionally violated the
law, though he has intentionally committed an act which is prohibited by law.
In Halsbury Laws o f England it is stated that if a statutory crime is silent with
regard to mens rea, there is a presumption that mens rea is essential. The presumption
can be rebutted either by terms o f statute or by the subject matter with which it deals.
It is o f utmost importance for the protection o f liberty o f a subject that the court
should always bear in mind that unless a statute rules out mens rea as a constituent
part o f a crime, the court should not find a man guilty o f an offence against the
criminal law, unless he has a guilty mind. In other words, absolute liability is not to
be presumed but ought to be established or found out by referring to the object and
subject matter o f statute (Brend v Wood, 1946 J.P. 316; Hariprasad Rao v State AIR
1951 SC 204).
In State o f Maharashtra v M. H. George (AIR 1965 SC 722), it was held:
“ Merely because a statute deals with a grave social evil is not sufficient to infer strict
liability, it must also be seen that whether imposition o f strict liability would assist
in the enforcement o f regulations. Unless this is so, there is no reason in penalising
him and it cannot be inferred that the legislature imposed strict liability merely in
order to find a luckless victim.”
In this case, RBI placed some restrictions on the entry o f gold into India, thus
superseding its earlier notification. The accused reached Bombay (on the way to
Manila), where the gold bars were recovered from his jacket.The accused pleaded
that he had no mens rea and that he had no knowledge o f the RBI notification. After
considering the object and subject matter o f statute (FERA, 1947), their Lordship
held that there was no scope for the invocation o f the doctrine o f mens rea in this
particular case. The very object and the purpose o f the Act would be frustrated if the
accused should be proved to have knowledge that he was contravening the law, before
he could be held to have contravened (as per Majority opinion; the Minority opinion
(J. Subha Rao) was that the object would not be defeated).
In Nathulal v State ofM.P. (AIR 1966 SC 43), it was held that object o f s tajute
would not be defeated by reading mens rea into the provisions o f the Essential
C ommodities Act, 1955. The appellant, a dealer in food grains had made an application
for a licence but no intimation was given to him that his application was rejected. He
purchased food grains from time to time and submitted returns to the licence departmenL
One day, a fo od inspector checked his godowns and found food grains stored without
any licence. The conviction o f the accused was set aside as he had no mens rea.
The Supreme Court held: “ There is a presumption that mens rea is an essential
ingredient in every criminal offence; but this may be rebutted by the express words
o f a statute creating the offence or by necessary implication. However, mens rea by
necessary implication can be excluded from a statute only where it is absolutely clear
that the implementation o f the object o f a statute would otherwise be defeated and its
exclusion enables those put under ‘ strict liability’by their act or omission to assist
the promotion o f the law. The nature o f mens rea that will be implied in a statute
creating an offence depends upon the object o f the Act and provisions thereof. Thus,
the general rule that there must be a ‘ mind at fault' before there can be a crime, is
not an inflexible rule.”
In conclusion, it can be said that the ultimate factor which the court keep in
mind while judging the exclusion o f mens rea is a balance between individual liberty
and public order. According to Sir J. Stephens, the doctrine o f mens rea is misleading
as the doctrine originated when criminal law practically dealt with offences which
were not defined. Today, however, each crime has a precise definition.
As far as offences under the Indian Penal Code are concerned, “every offence
is defined and the definition states not only what the accused must have done, but the
state o f his mind with regard to the act when he was doing it.”For example, theft must
be committed dishonestly, cheating must be committed fraudulently, murder must be
committed either intentionally or knowingly, and so on. Thus, there is no room for
the general doctrine o f mens rea in the Indian Penal Code. Each definition o f the
offence is self-sufficient All that the prosecution has to do, in India, is to prove that
a particular act committed by the accused answers the various ingredients o f the
offence in the particular section o f the I.P.C. J jj
2. PREPARATION AND CRIMINAL ATTEMPT
Broadly speaking in every crime there are four stages in the commission o f an offence.
The first stage exists when the culprit first entertains the idea or intention to commit Gi
an offence. In the second stage, he makes preparations to commit it. The third stage
is when he attempts to commit it. If tlje third stage is suecesstul then finally the actual
commission o f the offence takes place.* A mere intention to commit offence is not
punishable.
Sec. 511: Attempt

Sec. 511 lays down that>‘whoever attempts to commit an offence punishable b y this
Code with imprisonment for life or impiisongient, or to cause such an offence to be
committed, and in such attempt does any act towards the commission o f the offence.
shall, where no express provision is made by this C ode for the punishment o f such
attempt, be punished.”
-.W *?0 In case o f an attempt, as the injury is not as serious as in the case o f actual
kcrime, the punishment isône halfjpf that for the actual crime viz, imprisonment o f any
description provided for the offence, for a term which may extend to one-half o f the
AS? imprisonment for life/one-half o f the longest term imprisonment provided for that
offence, or with such fine as is provided for the offence, or with both.
V <Ît may be noted that ‘ abetment’o f an offence is more severly punishable than
an ‘attempt’to com mit it. An abetment ot the oftence o f murder is punished in the
same way as murder itself. Further, in ‘abetment’, the offence is com plete in itself,
whereas in ‘attempt’the offence is (jot)completed.
Illustrations:(a) A makes an attempt to steal som e jew els by breaking open a box, and
finds that there is no jew el in it. He has done an act towards the com m ission o f theft,
and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket o f Z by thrusting his hand into Z ’s
pocket. A fails in the attempt in consequence o f Z ’
s having nothing in his pocket. A
is guilty under this section.
Sec. 511 is a general section that makes punishable all attempts to commit
offen ces punishable with imprisonment for life or imprisonment excepting those
punishable with death or with fine only. Sec. 511 provides for punishment for an
attempt to commit an offence under the Penal Code. It does not apply to offences
under special or local laws.
Further, only such attempts are punishable under Sec. 511 for which no express
«*«**• provision is made by the Code. Express provision has been made by the C ode for
attempts falling under various sections, e.g. Sec. 121 (attempting to wage war against
the Government), Sec. 132 (attempt to rescue anv State prisoner or prisoner o f war).
Sec. 161 (public servant attempting to take illegal gratification). Sec. 196 (attempt to
use as true, evidence known to be false). Sec. 239 (attempt to induce a person to
receive a counterfeit coin), S e c . ^ Q ^ a tt e mpt to commit murder/culpable homicide).
Sec. 309 (attempt to commit suicide). S ec. 393 (attempt to commit robbery), etc.
A mere preparation is not made punishable by the C ode except under the
follow ing sections o f the Code,~viz. S e cT l2 2 (preparation to wage war with the
Government o f India), Sec. 126 (preparation to commit depredation on territories o f
any power in alliance or at peace with the Government o f India), Sec. 351 (preparation
to cause apprehension o f criminal force!, and 399 (preparation for committing d o co ity).
Meaning o f ‘
A ttem pt’
What constitutes an “attempt”is a mixed question o f law nnd fact, depending largely
on the circumstances o f the particular case. A precise and exact definition o f “attempt”
cannot be given. The word ‘ attempt’means ‘ to try’or ‘
to endeavour to do something’ .
‘Attempt’means an act towards the com m ission o f the offence which fails due to
circumstances independent o f the attempter’ s will. Thus, it means any voluntary> act
which does not fructify into yielding die imendeil result. In ‘ attempt’, it is the motive
which makes the act wrongful though the act in itself may not be wrongful.
Indian Penal C od e 291
g £ .
A person com m its the offence o f “attempt to commit a particular offen ce”when
(i) he intends to com m it that particular offence, (ii) he made preparation for it, and
(iii) d o e s any act towards its com m ission {actus reus). It is not only necessary that
the accu sed should have done an overt act ‘ ‘
towards the com m ission o f the o ffen ce”,
but also that act itself should have been done “in the attempt”to commit it. Thus, if
one g o e s out o f on e’s house with a loaded gun to kill someone, som e act is done
towards the com m ission o f the offence, but so long as no overt act is done “in this
attempt”, it is im possible to hold him guilty.
T h e follow in g points may also be noted in regard to ‘
attempt’
:
(i) It is not necessary for the offence under Sec. 511, that the transaction
com m en ced must end in crime or offence, if not interrupted. T o be
guilty o f an attempt, it is not necessary that the circumstances must be
such as w ould facilitate the completion o f the crime.
(ii) An act done with the intention and preparation, the com m ission o f which
in the manner proposed was im possible is not an attempt. Thus, i f on e
w ho believes in witchcraft puts a spell on another, or bum s him in
effigy, or curses him with the intention o f causing him hurt, he cannot
be convicted o f an attempt to cause hurt. His failure to cause hurt is due
to his ow n act/omission, i.e., his act was intrinsically useless or defective
or inappropriate (due to undeveloped stage o f his intelligence or due to
his ignorance o f science). His failure, broadly speaking, was due to his
ow n volition (Asghar Ali v Emperor AIR 1933 Cal 893). Similarly,
there is no liability for an attempt to commit an im possible theft.
I f a man with intent to hurt another by administering p oison prepares and
administers som e harmless substance, believing it to be poison ous, he cannot be
con v icted o f an attempt to do so. For an attempt, the failure must be due to the
intervention o f som e factor independent o f on e’
s volition.
I f *A' with intent to hurt ‘B ’by administering poison, prepares a glass for him
and fills it with poison, but while A’ s back is turned, ‘
C ’who has ob served A’ s act,
pours away the poison and fills the glass with water, which 'A' in ignorance o f what
4C ’has done, administers to ‘ B\ ‘ A’would bc(guiltj) o f attempt to cause hurt by
administering poison as his failure was not due to any act or om ission o f his own, but
to the intervention o f a factor^ndcpendentjof his own volition. Similar w ould b e the
ca se if the poisoned glass fell from the hand o f *B*.
(iii) A person is said to com m it an offence o f attempt also in the cage s in
which he^ /oluntarily desfclslri.e.. repents before the attempt is completed)
from the actual com m ission o f the crime itself.
(iv) An act “ towards com m ission o f offence”need not be ‘ penultimate ’(i.e.,
last act after which the crime results), but such act must be proxim ate
to the intended result. The measure o f proximity is pot in relation to
time and action b\it in relation to intention i.e., the act must be indicative
or sug g estive o f intention {State o f Maharashtra v Mohd. Yakub A IR
19g0 SC 1111). The act must be an act during the course o f co m m itting
that ôffence {Ahhayanand Mis hra v State A IR 1961 S C 1698).
In M oh d Yakub case, the custom officers received information that a truck and
a jeep containing silver with the intention o f smuggling it out o f country, were heading
towards tne sea shore. The Supreme Court held that accused had made all the
preparations and it is only because o f intervention o f custom officers that they could
not succeed in their attempt. The accused are accordingly guilty under Sec. 511.
In the present case, had the truck been stopped and searched at the very
commencement o f the journey, the discovery o f silver ingots in the truck might at the
worst lead to the inference that the accused had prepared or were preparing for the
commission o f the offence, and thus could not be held guilty. The fact that the truck
was driven up to a lonely creek from where the silver could be transferred into a sea
faring vessel was suggestive or indicative, though not conclusive, that the accused
wanted to export the silver. A narrow interpretation o f the word "attempt”in these
penal provisions (i.e.. those dealing with anti-social activity like smuggling) which
will impair their efficacy as instruments for combating this baneful activity, has to be
eschewed.
In Abhayanand Mishra case, the issue before the court was whether appellant
was guilty o f an "attempt to cheat”the university, under Sec. 415, IPC, in as much
as he, by making false representation, deceived the university and induced the authorities
to issue admit-card. The court held that it is not true that appellant did not gone
beyond the stage o f preparation. The preparation was completed when he prepared
the application. The moment he dispatched it, he attempted to commit the offence. He
just failed to commit the offence because something beyond his control took place.
(v) "The preparation consists in devising or arranging the means or measures
necessary for the commission o f the offence. On the other hand, an
attempt to commit the offence is a direct movement towards the
commission after preparations are made (Malkiat Singh v State AIR
1970 SC 713).
If a man buys a box o f matches he cannot be convicted o f attempted arson,
however clearly it may be proved that he intended to set fire to a haystack at the time
o f the purchase. Nor can he be convicted o f this offence if he approaches the stack
with the matches in his pocket but if he bends down near the stack and light a match
and extinguishes it on perceiving that he is being watched, he may be guilty o f an
attempt to bum it.
In Malkiat Singh case, a truck loaded with paddy, destined for Delhi, was
intercepted at a place about 40 km from Delhi (the paddy export was banned under
the Punjab Paddy Order). The court held that the “best test”for determining whether
a given set o f acts constitute attempt or mere preparation is whether the overt acts
already done are such that if the person “changes his mind", and does not proceed
further, the acts already done would be completely harmless. If they would be so, it
would amount to preparation only. But, where the thing done is_such as. if not
prevented by any extraneous cause, would fructify into the commission o f an offence,
it would amount to an attempt to commit that offence. In the present case, the accused
had ample time to change their mind and not to proceed further, and, thus, not guilty
under Sec. 511. ^ , * 1 ^
£ fx e s Amounting to Mere Preparation

The accused was apprehended with a fall o f rag containing a piece o f lighted charcoal
in his possession and was convicted o f ‘

attempt’to cause mischief by fire to a human
dwelling. What he did was nothing more than a preparation [Queen v Doyal Bawri
(1869)].
A contractor who was supplying milk to a hospital was found in the hospital
compound with three gallons o f stale milk, going in the direction o f the place where
the cow s were about to be milked, his milk-can being similar to the one in which the
cow s were milked.
The accused, on quarrelling with his brother, fetched a sword, but was seized
by others and disarmed before he could use it. “It is qu'te possible that although he
fetched the sword, he might not, after all, have actually used it against the complainant,
who was his own brother” .
A Government stockist removed 80 rice bags from a godown in his charge, and
hid them in a room, with a view to sell them and appropriate the proceeds
B, with intent to pick A’ s pocket followed him into a fair. B was seen lifting the
tail o f A’s pocket with a view to ascertain if there was anything in A’ s back pocket.
Apparently feeling the pocket empty by touching it only from outside, B came out o f
the fair disappointed. B ’ s act can be said to be in a stage o f preparation. However,
if B put his hands into A’ s pocket but found it empty, then B will be guilty o f an
attempt.
Sec/lff^TAttem pt to Commit Murder

According to Sec. 307, if a person does any act with such intention or knowledge, and
under such circumstances that if he by that act called death, he would be g iu lty o f
murder, and punishable with imprisonment uptofiojyears and fine, and if
caused to any person by such act the offender shall be liable either tojlifîmprisonment,
or to such punishment as is hereinbefore mentioned. When any person offending
under this section isounder sentences o f life-imprisonment, he may, if hurt is caused,
be punished with (lead).
Illustration: A, intending to murder Z, by poison, purchases poison and mixes the
same with food which remains in A’ s keeping. A has not yet committed the offence.
A places the food on Z ’ s table or delivers it to Z ’
s servant to place it on Z ’
s table.
A has committed the offence.
“What Sec. 307 really means is that the accused must do an act with such guilty
intention and knowledge and in such circumstances that, but for some intervening act,
the act would have amounted to murder in the normal course o f events"!Emperor v
VB G oggle (1932) 59 Bom 434], In this case, the accused fired two shots from
revolver at point blank range at the Governor o f Bombay, but the bullet failed to take
effect owing to some defect in the ammunition. The accused was held guilty under
Sec. 307.
In Queen Empress v Nidha, the accused pulled the trigger o f a blunderbuss, the
cap exploded but charge did not go off. Held that the case is not covered bv Sec. 307.
as the act in the natural rnnrse nf events would not have caused death.
In Om Prakash v State o f Punjab (1962) ISCJ 108, the accused regtdarfy
starved his wife with the intention o f causing her death, though he did not achieve the
object o f killing her. The Supreme Court observed that the completion or attempted
completion o f one o f a series o f acts to result in killing is an 'attempt to murder\ even
though this act unless followed by other acts do not result in killing. The court held
that the ingredients o f an offence o f attempting to commit murder under Sec.307
should be same as the ingredients o f an offence o f attempt to commit that offence
under Sec. 511. Therefore, it is likely that Sec. 511 will not he applicable to attempts
to comminnurder which fall exclusively under Sec. 307.
A5
* 3. GENERAL EXCEPTIONS
h. rf t
^ Cha
hapter IV o f the Indian Penal Code deals with the general exceptions to criminal
liability. There are various kinds o f acts (exceptions) done under the circumstances
mentioned in Secs. 76 to 106. which will not amount to offences under the Code.
These exceptions are:
(1) Mistake o f fact (Secs. 76, 79). P a ?
( 2) Judicial acts (Secs. 77-78). 3 . a.

(3) Accident (Sec.@).
(4) Absence o f criminal intention (Secs. 81-86, 92-94).^
(5) Act done by consent (Secs. 87-91). £
( 6) Trifling act (Sec(j^).
(7) Private defence (Secs. ^6-lffi). V *
The onus o f proving exceptions lies on the accused, who has to prove the
circumstances bringing the case within any o f the general exceptions. The court shall
presume the absence o f such circumstances. The prosecution has to prove the guilt o f the
accused. Thus, A, accused o f murder, alleges that, by reason o f unsoundness o f mind, he
did not know the nature o f the act. The burden o f proof is on A. It may be noted that
unlike the prosecution, which has to prove the charge beyond a reasonable doubt, the
accused has to show that preponderance o f probabilities is in favour o f his plea.
'vfl] Secs. 76 and 79; Mistake of Fact

Mistake o f fact is sometimes a good defence. Sec. 76 lays down that "nothing is an
offence which is done by a person, who is, or who by reason o f a ipistake o f fact and
not by reason o f mistake o f law, in pood faith, believes himself to be bound by law
to do so”.
Illustrations: (a) A, a soldier, fires on a mob by the order o f his superior officer in
conformity with the commands o f the law. A has committed no offence.
(b) A, an officer o f a Court o f Justice, being ordered by that court to arrest Y,
and after due inquiry, believing Z to be Y. arrests Z. A has committed no offence.
‘Mistake* is a slip made, not by design, but by mischance. Under English
common law also, an honest and reasonable belief in the existence o f circumstances,
which would have made that act an innocent act, has always been a valid defence.
~An honest and reasonable mistake stands, in fact, on the same footing as absence o f
the reasoning faculty, as infancy or lunacyM(7bfoow*s case, 1889).
Ignorance o f fact is excusable (Ignorantia facti). However, mere forgetfulness is
not mistake. Mistake o f fact implies mistake as to true identities or mistake in sensory
perceptions such as temporary distortion o f imaginatioa Thus, in Tolsoris case, the
accused wife was convicted o f bigamy. It was held that as at the time o f second
marriage she bona fide believed her husband to be dead, her conviction was wrong.
However, ‘ mistake o f law’is no defence, everybody is bound to know the law
o f the land and Ignorance o f the law is no excuse. Likewise, mistake o f fact is no
defence if the fact itself is illegal. One cannot do an illegal act and then plead
ignorance o f a fact (/?. v Prince, 1683). In this case, a person was prosecuted for
abducting a girl below the age o f 16 years under the belief that she was above 18
years o f age. The accused was held to be guilty.
Further, while obedience o f a legal order comes within the ambit o f the expression
“bound by law,”obedience o f illegal orders o f a superior is not justifiable under Sec.
I f The maxim respondeat superior (‘ act done by the order o f a superior') has no
application in criminal law. The order o f a superior to an inferior servant to commit
an offence is not a valid defence. The law does not recognize the duty o f blind
obedience to the commands o f a superior unless he believed in good faith that he was
bound to obey that order; the servant should exercise his own judgment
Sec. 79
According to Sec._79, nothing is an offence if done by a oerson who in good faith
believes him self to be justified by law in doing that act. The distinction between Sec.
76 and Sec. 79 is that in the former, a person is assumed to be bound, and in the latter
to be justified by law. The distinction is between a real or supposed legal obligation
and a real or supposed legal justification in doing the act. Under both the sections,
there is a bona fide intention to advance the law (mens rea is absent in both).
Illustration: A sees Z commit what appears to be murder. He in good faith seizes Z,
to hand him over to the police. A has committed no offence though it may turn out
that Z was acting in self-defence.
Some cases coming under Sec. 79 are: In Chirangi v State (1952 CrLJ 1212),
the accused, in a momentary delusion, mistook his own son as a tiger and killed hug.
In Waryam Singh v Emperor (AIR 1962 Lah 554), the accused, in a njght. mistook
a living human being as a ghost and killed him. A similar act was done by the accused
in State o f Orissa v Ram Bahadur Thapa (AIR 1961 Ori 161).
[Il]êcs. JudiciaTîts
The second general exception relates to act o f judges and courts. According to Sec.J77,
any act done by a judge while actiqg judicially, which he in good faith, believes to be
given to him by law, is no offence. Thus, a judge who sentences a prisoner to death
(even wrongly) is not himself liable to be hanged forhavtng caused somebody's death.
Similarly, according to Sec. 78, an act done pursuant to the judgment or enter
o f a court o f justice (when the person doing the act in good faith believes that the
court has jurisdiction) is no offence. If it were to be an offence the hangman who

hangs the prisoner pursuant to the order o f the judge, would also have to be hanged.
It may be noted that under S ec. 78, the officer is protected in carrying out an
order o f a court, which may have no jurisdiction at all, whereas as under Sea. 77, the
ju dge must be acting within his jurisdiction to be protected by it. Thus, ‘ mistake o f
law’can be pleaded as a defence under Sec. 78.
[Ill] Sec. 80: A ccident

The third general exception relates to acts committed by accident. Sec. 80 lays down
that nothing is an offence, which is done by accident or misfortune-
(i) (vMot</yriminal intention or knowledge,
(ii) in the doing o f a ([awful act]in a lawful manner by lawful means, and
(iii) with proper (care) and caution.
Illustration: A is at work with a hatchet; the head flies o ff and kills a man who is
standing by. Here, i f there was no want o f proper caution o n A’ s part, his act is
excusable and not an offence.
An accident is something that happens out o f the ordinary course o f things. The
idea o f something fortuitous and unexpected is involved in the word ‘ accident’ . An f
injury is said to be accidentally caused whenever it is neither wilfully nor negligently
caused. Thus, in a game o f cricket a ball strikes a man on the head and he dies. Such
a death is accidental. Similar is the case where two wrestlers arranged bout in the
course o f which the deceased fell and broke his skull. .r
Som e other illustrations are: A takes up a gun, and without examining whether
it is loaded or not, points it in sport at B, and pulls the trigger. B dies. Such a death
is not accidental, as there was ‘ want o f proper care and caution ’. I f A has reason to
believe that the gun was not loaded, the death would have been accidental. It may be
noted that shooting with an unlicensed gun will not debar an accused from claiming the
benefit o f Sec. 80. A shoots at a bird in B ’ s house in order to steal it, and kills B. A
is liable, as his act was not lawful. To steal is not a lawful act.
[IV] Secs. 81-86 and 92-94: A bsence o f Criminal Intent l y V

•Criminal intention’means the purpose or design o f doing an act forbidden by criminal
law without just cause or excuse. Now, there are certain acts, which appear to be
criminal, but are done without any criminal intent. It is but fair that such acts should
not be penalized, which lack mens rea.
There are seven such acts mentioned in Secs. 81-86 and 92-94: ,
(i) Act done to avoid other harm (Sec. 81). )
e (ii) Act o f a childTSecs. 82-83). %
\
W (iii) Act o f lunatic (Sec. 84).
(iv) Act o f an intoxicated person (Secs. 85-86). 7-
a
(v) Bona fid e act for another’
s benefit (Sec. 921. 1 I \
6 - *
... . Ant-
Indian Penal C ode 297
(vi) Comm unication made in go od faith (Sec. 93). ^ ^

(vii) A ct done under c ompulsion or threat (Sec. 94). ^
(i) S e c . 8Jy Act Done to Avoid Other Harm .

“A n act d o n e with the knowledge that it is likely to cause harm, but done in g o o d "
faith, and without any criminal intention to cause harm, for the purpose o f preventing
or avo id in g harm to person or property is not an offence”. For instance. A, in a great j ^
fire, pulls dow n houses in order to prevent the conflagration from spreading, or where
the sailors threw passengers overboard to lighten a boat. 8y\Ju^
T h e prin ciple upon which Sec. 81 is based is that when in a sudden and extrem e
em ergen cy, on e or the other o f two evils is inevitable, it is lawful so to direct events
so that the sm aller evil only shall occur. It is a question o f fact in each case whether
such circum stances exist. < e » 7 DYliMACL V
U ljow ever, a man cannot intentionally com m it a crime in order to avoid o ther -* io\li>77
g reater harm. In a case, a jh je f was in the habit o f stealing the toddy from pots. Thd- ’? tnl flf)
accu sed p la ced p oison in his toddy pots to detect the thief. The toddy was drunk b y ? ?>e>
and caused injury to, io m e soldiers who purchased it from an unknown vendor. It was d u \
held that Sec. 81 was o f no defence to the accused (.Emperor v D hania Daji, 1868). “
Similarly, a person dying o f starvation cannot commit theft o f food and plead that he
did s o to a v oid another harm, viz. his own death, because he intentionally com m itted
the offen ce o f theft.
|/£aktfwise, in D udley v Stephens (1884) 14 Q. B. D. 173. it was held that a man
who, in order to save his file from starvation, kills another for the purpose o f feedin g
on his flesh, is guilty o f murder. The ‘
doctrine o f self-preservation* is o f n o avail in
such cases.
(ii) Secs. 82=83: Act o f Child 'JL~t 'l*A ~r ^ ^ CO !

%
Under the Indian Penal Code, there is an absolute incapacity for crim e under seven
years o f age. A ccordin g to Sec. 82, an act o f a child under seven years is n o offence.
It is to b e noted that this immunity is not confined to offences under the C o d e only,
but extends to offen ces under any special or local law.
A n infant is, by presumption o f law, doli incapax i.e. not en dow ed with any
discretion so as to distinguish right from wrong, thus, the question o f criminal intention
d o es not arise. W here persons get crimes committed through children b e lo w 7 years,
they will be held liable while the child will be exempted.
A ccordin g to Sec. 83, acts done by children above seven and b elow 12 w ill b e
protected i f it is shown that the child in question has not attained sufficient maturity o f
understanding to ju d g e the nature and consequences o f his conduct on that occasion. It
is to be noted that there is complete liability to punishment after twelve years o f a g e.
In a case, a girl o f 10 years married again during the lifetime o f her husband,
the marriage being negotiated and caused to be performed by her mother. Here, i f the
girl was o f sufficient maturity o f understanding, she w ould be liable for bigamy.
Similar w ould be the case where a child o f 9 years o f age stole a g o ld n eck lace and
sold it to B for half a rupee only. The boy would be liable i f he w as p rov ed t o b e
o f sufficient maturity o f understanding. The maxim malitiu supplet oetatem (m alice
oUfrux
supplies defect o f years) applies to Sec. 83. The circumstances o f a case may disclose
such a degree o f malice as to justify the maxim.
(iii) Sec. 84: Act of an Insane Person o chuo T>

> * rv.
Criminal law gives complete protection to a lunatic. Sec. _84 lays down that nothing *
is an offence which is done by a person, who owing to unsoundness o f mind, is
incapable o f knowing the nature o f the act, or that he is doing what is wrong or
contrary to law'. Th? ‘
legal insanity' contemplated by this section is different from the
»medical insanity. ^ l t ^ V tftOry+tLS eA F
No culpability' can be fastened upon insane persons as they have no free will
/Furiosi nulla voluntas esti. The words "unsoundness o f mind" include following
kinds o f persons: idiot (bom); one made non compos mentis bv illness (temporary
fixture); a lunatic or a mad man (mental disorder); a person in unconscious state, if
proved (e.g. sleep walking or somnambulism); an intoxicated person.
The following tests or principles are important to determine the insanity o f a
person:
It must be shown that the accused w'as o f unsound mind “at the time o f the
commission o f the offence”. If he was not insane at that time but became
insane later, he cannot take the benefit o f Sec. 84.
History o f previous insanity, the behaviour o f the accused on the day o f
occurrence, the state o f his mind before and after the commission o f the
offence are relevant factors to be taken into consideration. For instance,
evidence o f pre-meditation, secrecy, motive, an attempt to evade/ resist arrest,
confession given on the very next day, etc. may make the defence o f insanity
untenable (Queen-Empress v Gedka Gowala AIR 1937 Pat 333).
What is protected by Sec. 84 is ‘ naturally impaired cognitive faculties o f
mind’i.e. inherent or organic incapacity (incapability). What is not protected
is a wrong or erroneous belief (may be on account o f perverted illusion), or
uncontrollable impulses, or ‘ moral insanity’or weak/defective intellect, or
eccentric behaviour. When cognitive faculties are not impaired, and only vvjll
and emotions are affected, insane impulses are not a defence [Queen-Empress
v K.N. Shah (1896)].
To claim protection under Sec. 84, it is not that person should not know an
act to be right or wrong, but that he should be incapable o f knowinp whether
the act done by him is right or wrong. When the “ guiding light”(i.e. capacity
to distinguish between right and wrong) is fotmd to be still flickering, a man
cannot be protected under Sec. 84 (Lakshmi v State AIR 1959 All 534).
(5) Akin to lunacy, is what is known as insane delusion, which is a borderline
case. Delusions are “false beliefs”which may be full or partial. Whether a
person, who under an insane"delusion, commits an offence in consequence
thereof is to be excused depends upon the nature o f die delusion. The law
as to insane delusions is well discussed in McNausthtens’case (1843).
In A. Ahmed v Kins (AIR 1949 Cal 182), the accused killed his own son o f 5
years by thrusting a knife in his throat under the delusion und in pursuance o f a
ft - A
Inoian Penal Code 299
r e mand by someone in paradise, given to him in his dream. He was held to be

protected under Sec. 84. (ydfruM iX tf&M Jt
Example- A was suffering under an insane delusion that X and Y were persecuting
him. He bought a knife in order to revenge himself on them, and that very evening
he went to their club and stabbed them dead. The fact that he actually purchased a
knife as also he went to their club, shows that his intention was to kill. Thus, A would
be guilty o f murder.
(6) In a case, where a father and his relatives sacrificed a 4-year old son to
propitiate a deity, the Supreme Court held that this does not, by itself, prove
insanity (Paras Ram v State o f Punjab, 1981).
(7) Where acts o f violence are committed by a person for no apparent motive,
killing his own kith and kin towards whom he had all along been affectionate,
and where the person has a previous history o f lunacy, the benefit o f doubt
goes in his favour.
n (8) Persons who are occasionally "possessed" by ‘ spirits’and those who, being
in fits o f delirium, very often conjured up visions/images are given the
benefit o f Sec. 84. However, in cases o f delirium tremens -a kind o f m.
brought about by habitual excessive liquor or illness, if the patient/
7 to what he was doing, he would be criminally liable^
MUiUcuZ. XL*'*'*
(iv) Secs. 85-86: Act of an Intoxicated Person
Drunkenness is a species o f madness for which the man is to blame. If a man chooses
to get drunk, it is his own voluntary act; it is very different from madness, which is
not caused by any act o f the person Qui Pecat Ebrius Luat Sobrius : Let him who sins
when drunk be punished when sober. However, Secs. 85 an#86 protect an intoxicated .
■rson provided he got intoxicated by (e.g. tool a wrong medicine) or ,by
rauj or force
00 • ^ ptad C^jjtp
Sec. 85 lays down that nothing is an offence which is done by a person, who
owing to intoxication, is incapable o f knowing the nature o f the act, or that what he
is doing is wrong or contrary to law, provided that the thing which intoxicated him
was administered without his knowledge or against his will. Thus, the test o f
drunkenness is the ‘capacity to form an intention' o f committing the offence; in the
case~ofTnsanity, the test is ‘ capacity to knew’the nature o f one’ s act. However,
insanity produced by drunkenness is a defence (under Sec. 84
I
Sec. 86 states the presumption for certain offences committed by intoxicated
1
persons. Thus, if an act is an offence only when done with a particular intention or
knowledge, and such an act is committed by an intoxicated person, he will be presumed
to have knowledge requisite for the offence, unless he can show that he was intoxicated
without his knowledge or against his will. It may be noted that there is no presumption
as regards his intention.
The intoxication may be caused by liquor, medicines, bhang, ganja, etc. Where
the accused drank liquor at the persuasion o f his father to alleviate his pain, it cannot
be said that administration o f liquor to him was against his will. Thus, he could not
claim any benefit under Sec. 85.
In Basdev v State o f Pepsu (AIR 1956 SC 488), it was held that 'drunkenness
is ordinarily neither a defence nor an excuse for crime’. By law, an intoxicated person
is presumed to have the same knowledge as a sober man. However, the intention must
be gathered from the circumstances o f the case paying due regard to the degree o f
intoxication. When the accused's mind was so affected by drink that he more readily
gave way to som e violent passion, it could not be said that the accused did not intend
the natural consequences o f his acts. To claim benefit under Sec. 8.6, the accused has
to be sp drunk that he was incapable o f forming the intent [Director o f Public
Prosecutions v Beard (1920) A.C. 479].
^Xv^TSec. 92: Bona fide Act for Another's Benefit

Section 92 lays down that nothing is an offence by reason o f any harm which it may
cause to the person for whose benefit it is done, in good faith, and even without that
person’ s consent, under emergent circumstances. For instance, an immediate operation
performed by a surgeon on an accidental victim; or where a person drops a child from
the housetop (the house being on fire) knowing it to be likely that the fall may kill the
child, but not intending to kill the child, and intending, in good faith, child’
s benefit.
Example- Z is carried o ff by a tiger. A fires at the tiger, knowing it to be likely
that the shot may kill Z, but not intending to kill Z, and in good faith, intending Z ’ s
benefit. A’s bullet give Z a mortal wound. A has committed no offence.
(vi} Sec. 93: Communication made in Good Faith

Section 93 lays down that any communication made in good faith to a person for such
person’s benefit is no offence, even though such communication may cause harm to
such person. For instance, a surgeon, in good faith, comrminicatesj o a patient his
opinion that he qannot live. The patient dies under shock. The surgeon has committed
no offence, though he knew that it to be likely that the communication might cause
the- patient’
s death. f ^ | ]i / \ f
(vii) Sec. 94: Act Done under Compulsion or Threat

As per Sec. 94, offences committed under compulsion or threat by a person so
com pelled or threatened will be excused if the threat is to cause instant death o f such
person. However, a person so put under threat cannot cause murder or an offence
against the State punishable with death (e.g. treason) to avail benefit o f Sec. 94.
Further, the person doing the act did not o f his own accord, or from a reasonable
apprehension o f harm to himself short o f instant death, place himself under such
constraint.
A person who o f his own accord, or by reason o f a threat o f being beaten, joins
a gang o f dacoits, is not entitled to the benefit o f Sec. 94. However, a person seized
by a gang o f dacoits and forced by threat o f instant death to do anything which is an
offence by law (e.g. to break open the door o f a house) is entitled to the benefit o f
Sec. 94.
It is important to note that merely threatening with future death or any other
injury short o f death will not be good excuse. The threat should be to cause instant
death. Thus, if A approaches B with a stick in his hand and threatens to beat B if the
latter docs not go and cause a grievous hurt to Z; B cannot plead defence under Sec.
94. However, if A had a loaded revolver or a dagger in his hand, and held it at B’ s
throat, causing B to believe that he would be instantly killed if he did not break Z ’
s
bones, this would be a good defence. Where certain witnesses gave false evidence,
and then pleaded that they were threatened by the police to do so, it was held that
they were guilty as there was no proof o f instant death.
As noted above, a person under threat will not be excused under Sec. 94 if he
commits a murder o f another person. Sec. 94 seems to enjoin that it is better that he
should die under such circumstances, rather than commit murder. However, the offence
of ‘
attempt’to commit murder or ‘
abetment’o f murder would be excused if committed
under threat o f instant death.
[V] Secs. 87-91: Act Done by Consent

Sections 87-91 lays down the law as to how far an act done by consent will be
excused in law. It is important to note that ‘consent’plays a very important role in
criminal law. Its presence or absence often makes a difference between innocence and
crime (viz. an act o f sexual intercourse may become rape).
Section 90 lays down what is not consent, viz.
(a) a consent given by a person under fear o f injury or misconception o f
fact, or
(b) a consent given by a person who from unsoundness o f mind or
intoxication, is unable to understand the nature and consequence o f that
to which he gives his consent, or
(c) a person under 12 years o f age.
It is to be noted that ‘
consent’and ‘ submission’are not the same thing. Every
consent involves a submission, but not vice versa. Thus, mere submission by a person
who does not know the nature o f an act is not consent.
Sections 87-91 lay down that if certain acts are done with the consent o f the
victim, they will not amount to offences:
(1) Sec. 87 lays down that an act not intended or known to be likely to cause
death or grievous hurt, which act causes any harm to a person above 18 years
o f age who has given (express or implied) consent to suffer it is not an
offence.
This section covers injuries which may result whilst engaging in games and
sports. It proceeds upon the maxim volenti non fit injuria; he who consents, cannot
complain. However, a person is not permitted to give his consent to anything likely to
cause his own death or grievous hurt. It only justifies any harm short o f grievous hurt
(2) Sec. 88 similarly lays down that an act done in good faith for the victim’s
benefit with the victim’s consent is not an offence. This section protects
surgeons and surgical operations as also reasonable acts o f teachers (viz.
corporal punishment to a pupil to enforce discipline). However, persons who
are not qualified as medical practitioners (quacks) are not protected.
(3) Sec. 89 similarly protects act done in good faith for the benefit o f child or
insane person or by consent o f guardian.
(4) Sec. 92 clarifies that mere pecuniary benefits are not covered by the term
‘benefit’appearing in Secs. 88 and 89.
(5) Sec. 91 lays down that the exceptions contained in Secs. 87-89 does not
extend to acts which are offences independently o f any harm which may
cause to the person giving the consent. Thus, causing miscarriage (unless
caused in good faith for the purpose o f saving the life o f the woman) is an
independent offence, and the consent o f the woman or o f her guardian to the
causing o f such miscarriage does not justify the act.
[VI] Sec. 95: Trifling Acts/Acts Causing Slight Harm

The sixth general exception is laid down in Sec. 95. The maxim de minimis non curat
lex (‘the law takes no account o f trifles’
) is the foundation o f the section: If a person
causes any harm (even with an intention or knowledge to do so), and that harm is so
slight that no person o f ordinary' sense and temper would complain o f such harm, it
is no offence. Thus, both accidental as well as deliberate acts are covered by the
section. Further, the ‘
harm’covers actual physical injury also.
Examples o f such trifling acts include- picking up a wafer from the another’ s
plate; lighting one’s own cigar form a match-box belonging to the other without his
permission; a blow given across the chest with an umbrella by a dismissed-policeman
to the D.S.P. as his application to reconsider his case was rejected. Thus, this section
covers those cases which fall within the letter o f the penal law, but are not within its
spirit.
[VII] Secs. 96-106: Right of Private Defence

The right o f private defence is the right to protect one’ s own person and property
against the unlawful aggression o f others. Sec. 96 lays down that “ nothing is an
offence which is done in the exercise o f the right o f private defence”. It is a right
inherent in man; it is the first duty o f man to help himself. The right must be fostered
in the citizens o f every free country.
The doctrine o f private defence is founded on the following expediencies:
(i) A person, whose life is threatened by a grave danger, need not wait for
the State aid, unless such aid is available.
(ii) The right o f private defence is protective or preventive and not punitive
(i.e. not meant for punishing the aggressor); however, punitive measures
may result.
(iii) The right cannot be availed o f for the sake o f self-gratification or to
satisfy one’
s malicious or sadistic urges. The act o f private defence
should not be deliberate, or retaliation for past injury.
(iv) The right must be exercised when there is (a) real and immediate threat
(not imaginary and remote), and (b) a reasonable apprehension o f such
threat. A fear that one might or will be attacked in near future will not
justify the exercise o f this right.
(v) The right commences as soon ns reasonable apprehension o f danger to
the body arises from an attempt to or threat to commit the offence,
though the offence may not have been committed, und such right continues
so long as such apprehension continues. It is incorrect to say that a
person could claim the right to use force after he had sustained a serious
injury. Further, if the apprehension is real and reasonable, it makes no
difference that it is mistaken.
(vi) The protective measures employed must be relative to the danger ahead,
i.e. violence used must be proportionate to the injury or threat to be
averted, and must not exceed such limits. However, in such situations it
cannot be expected o f a person to minutely calculate the correct
proportion o f force to be used in defence (Amjad Khan v State AIR
1952 SC 165).
(vii) The right o f defence ends with the necessity for it. Thus, the person
exercising such right need not chase the fleeing attacker and then beat
him (State o f U P v Ram Swarup AIR 1974 SC 1570).
(viii) The law1does not require that a person should not exercise his right to self-
defence if by running away he can avoid injury. He should exercise it
(ix) The law does not require that a person placed in such circumstances
should weigh the arguments for and against an attack 'in golden scales’
.
(x) The “aggressor”(i.e. one who goes to beat other) cannot claim the right
to self-defence (Deo Narain v State o f UP. AIR 1973 SC 473).
(xi) There cannot be 'private defence against private defence’ . There is no
right o f private defence under the Code against any act which is not in
itself an offence under it (an act done in exercise o f the right o f private
defence is not an offence).
(xii) In a case o f “free fight”
, no right o f private defence is available to either
party.
(xiii) Even if an accused does not plead self-defence, it is open to the court
to consider such plea if the same arises from material on record.
Private Defence of Body

Section 97 lays down that every person has a right to defend his own body or that
o f any other person against any offence affecting the human body. Thus, even a
stranger may defend the person or property o f another person. While under the
English law, there must be some kind o f existing relationship (e.g. master and servant,
husband and wife).
Section 98 provides that for the purpose o f exercising the right o f private
defence, the physical or mental capacity o f the attacker (whether with or without mens
rea, e.g. a lunatic, a minor, an intoxicated person or a person acting under misconception
o f fact) is no bar. Thus, if A, a lunatic, attempts to kill B, A is guilty o f no offence,
but B has the same right o f private defence which he would have if A were sane.
Section 99 lays down the general restrictions on the right o f private defence:
(i) There is no right o f private defence against an act which does not
reasonably cause the apprehension o f death or grievous hurt, if done by
a 'public servant’acting in good faith under colour o f his office, though
that act may not be strictly justifiable by law.
However, a person is not deprived o f the right o f defence 3gainst an act o f
public servant, unless he knows or has reason to believe that the attacker is a public
servant or is acting under the direction o f a public servant (Explanations 1 and 2 to
Sec. 99).
There is a difference between acts which are wholly illegal (or ultra vires) and
the acts which may not be strictly justifiable by law (irregular acts). Where the police
had illegally arrested a person, and certain villagers with a view to rescuing that
person launched attack on the police but only after a constable had fired at them, it
was held that the villagers had acted in exercise o f right o f private defence as the act
o f firing caused reasonable apprehension o f death/grievous hurt in their minds. On the
other hand, if a p olice officer, acting bon a fid e under colour o f his office, arrests a
person without authority, the arrestee has no right o f self-defence against the officer.
(ii) There is no right o f defence in cases in which there is time to have
recourse to the protection o f public authorities.
However, this does not mean that a person must run away to have recourse to
the protection o f public authorities when he is attacked, instead o f protecting himself.
(iii) The right o f private defence in no case extends to the inflicting o f more
harm than it is necessary to inflict for the purpose o f defence.
Section 100 lays dow n six acts o f aggression, so serious in nature, that the law
giv es full authority to the defender even to cause the death o f assailant. The six cases
o f assault are: reasonable apprehension o f death, or o f grievous hurt, assault with the
intention o f committing rape, or o f gratifying unnatural lust, or o f kidnapping and
abduction, or o f wrongfully confining a person. In other cases, the defender may
cause any harm except death (Sec. 101).
In the case o f reasonable apprehension o f death, if the defender be so situated
that he cannot exercise the right without risk o f harm to an innocent person he may
even run that risk (Sec. 106) (viz. a person attacked by a mob; he cannot fire without
risk o f harming young children who are mingled with the mob).
Section 102 lays down that the right o f self-defence com m ences as soon as a
reasonable apprehension o f danger to the body arises and continues as lon g as such
apprehension continues (even though the offence may not have been committed).
Thus, where the accused continued to assault the deceased after he had fallen down
and was rendered harmless, the right o f private defence would not be available.
Similarly, where a number o f persons strangled a thief and subjected him to gross
maltreatment when he was fully in their power, the right o f private defence was
negatived.
Private Defence o f Property

Every person has the right to defend the property (whether m ovable or immovable)
o f him self or o f any other person-
(i) against theft, robbery, m ischief or criminal trespass, or any act which is an
attempt to commit theft, robbery, etc. (Sec. 97); and
(ii) against the act o f a lunatic, a minor, or an intoxicated person or a person
acting under a misconception o f fact (Sec. 98).
The right o f private defence o f property is also subject to limitations laid down
in Sec. 99.
S ection 105 lays down that the right com m ences when a reasonable apprehension
o f dan ger to the property commences, and the right continues-
(i) against theft, till offender has effected his retreat with the property, or the
assistance o f the public authorities is obtained, or the property has been
recovered;
(ii) against robbery, as long as the offender causes (or attempts to cause) to any
person death or hurt or wrongful restraint, or the fear o f instant death/hurt/
personal restraint continues;
(iii) against crim inal trespass or m ischief as long as the offender continues in the
com m ission o f such offence; or
(iv) against house-breaking by night, as lon g as the house-trespass continues
(thus, where a person follow ed a thief and killed him in the open, after
house-trespass has ceased could not plead the right o f private defence).
Section 103 enumerates the cases in which the right extends to justifiably causing
the death o f the wrong-doer, viz. (i) robbery, (ii) house breaking by night, (iii) m ischief
by fire to any building, tent or vessel used as human dwelling or as a place for the
custody o f property, (iv) theft, m ischief or house-trespass under the circumstances
causin g reasonable apprehension o f death/grievous hurt. In other cases, the right
extends to any harm other than death (Sec. 104).
4. JOINT AND CONSTRUCTIVE LIABILITY
Th e law relating to ‘ join t liability’is contained in Secs. 34-38, IPC. There are three
m ore section s in the C od e which deal with joint or constructive liability, viz. Sec. 149
(Unlawful assembly), Sec. 396 (Dacoity with murder), and Sec. 460 (House-breaking
by night with murder or grievous hurt).
The join t or group liability is also called ‘
constructive liability’
, i.e. liability o f
all for the acts o f one or som e o f them. Suppose A, B, C, and D jo in to com m it Z ’ s
murder. I f they merely join, and do nothing else, they would be guilty o f the offen ce
o f crim inal con spira cy even though nobody is murdered. But i f A alone com m its that
murder, law w ill fix on all o f them constructive liability for the act o f A.
Constructive liability in criminal law means the liability o f a person for an
offen ce w hich he has not actually committed. This must not, however, be co n fu sed
with vicarious liability, which is the liability one incurs for the acts o f a servant or
an agent during the cou rse'of the service. Here, unlike the constructive liability,
neither the com m on intention nor the common object need be proved- V icariou s
liability in criminal law is an exception rather than a rule. But, constructive liability'
in criminal law is a well-recognized principle.
S ection 34: C o m m o n Intention

Section s 34-38 lay down the follow ing four important principles gov ern in g jo in t
offenders, i.e. persons who join together to commit a crime:
(i) Act done by several persons in furtherance o f common intention (Sec. 34).
(ii) Act done with criminal knowledge or intention (Secs. 35&36).
(iii) Co-operation in acts constituting an offence (Sec. 37).
(iv) Persons concerned in criminal act may be guilty o f different offences (Sec.
38).
Section 34 says: “When a criminal act is done by several persons in furtherance
o f the common intention o f all, each o f such persons is liable for that in the same
manner as if it is done by him alone”.
Sec. 34 is framed to meet cases in which it may be difficult to distinguish
between the acts o f individual members o f a party, or to prove exactly what part
played by each o f them (R. v Cruse, 1838). If the intention or purpose is common,
so must be the responsibility. Thus, the common belief that ‘
more the people, less the
guilt’has in law, no application to the act or commission o f a crime. Sec. 34, thus,
discourages ‘group criminals’ .
‘Common intention’and ‘ participation’, both are necessary for the application
o f Sec. 34. Common intention necessarily implies a pre-arranged plan or prior concert
or prior meeting o f minds. Thus, there is a sharing o f purpose which is lacking in a
case where several persons have the ‘ same/similar intention’(Pandurang v State o f
Hyderabad AIR 1955 SC 216; Mahboob Shah v Emperor, 1945). It may be noted
that common intention can be formed at the spur o f the moment; but the plan must
precede the act constituting the offence. Thus, where during a fight a person calls the
bystanders to help him kill a person and they join him; there is then necessary meeting
o f minds or formation o f a pre-arranged plan though hastily formed (Krishna Govind
v State o f Maharashtra AIR 1963 SC 1413).
The use o f words ‘ in furtherance o f common intention’suggests that Sec. 34 is
applicable also where the act actually done is not exactly the act jointly intended by
the conspirators to be done. The common intention can be to do an act, and another
act can be done in furtherance o f the common intention (e.g. a preliminary act or a
necessary act after achieving the common intention). Thus, the shooting o f a wrong
man or the Sentry could be said to be in furtherance o f common intention (Shankar
Lai v State o f Gujarat AIR 1965 SC 1260). However, the act should not be extraneous
(outside) o f the common intention, or is done in opposition to it.
Common intention is a question o f fact. Although it is subjective, it can be
inferred from the facts and circumstances. Thus, mere presence at the scene o f the
crime may not always amount to participation in the crime. Likewise, where the
accused ran away with his companion (on the latter’s bicycle) it could not be said that
they participated in the act together and had a common intention (Malkhan Singh v
State o f U.P. AIR 1975 SC 12).
Besides pre-planning, actual ‘ participation’in the crime is necessary to make
case o f joint liability. It has been held that participation does not mean participation
in the actual doing or commission o f a crime, if a person is directing entire operation
from some distance, he would be deemed to be participating in the crime (J.M. Desai
v State o f Bombay AIR 1960 SC 889; Tukaram v State o f Maharashtra AIR 1979
SC 185). This is the case when the offence consists o f diverse acts which may be
done at different times and places. It may be noted that participation may be in a
passive way (viz. standing by the door).
Secs. 141-149: Unlawful Assembly and Common Object

According to Sec. 141, an assembly o f 5 or more persons is designated as “ unlawful
assembly” , if the common object o f the persons comprising that assembly is to overawe
by criminal force the Government or Legislature or a public servant, or to resist the
execution o f any law or legal process, or to commit any mischief, criminal trespass
or other offence, or to take forcibly possession o f any property, or to deprive any
person o f the enjoyment o f incorporeal right (right o f way or use o f water), or to
enforce any right or supposed right, or to compel any person to do what he is not
legally bound to do, etc. The use o f the criminal force or the show o f criminal force
is necessary.
Explanation to Sec. 141 lays down that an assembly which was not unlawful
when it assembled may subsequently become unlawful. It may be noted that a lawful
assembly does not become an unlawful one because o f its refusal to obey an order
to disperse. Sec. 142 lays down that whoever being aware o f facts which render any
assembly an unlawful assembly, intentionally joins it or continues in it is said to be
a member o f such assembly.
Section 149 says: “If an offence is committed by any member o f an unlawful
assembly in prosecution o f the common object o f that assembly, or such as the
member o f that assembly knew to be likely to be committed in prosecution o f that
object, every person who, at the time o f committing o f that offence, is a member o f
the same assembly, is guilty o f that offence”. Thus, Sec. 149 is another instance o f
constructive liability. The following important points may be noted:
(i) ‘Common object* does not require prior concert (pre-arranged plan) and
common meeting o f minds before the attack; an unlawful common object
may develop at the spot (eo instanti) after the assembly gathers. It is enough
if it is adopted by all members i.e. they concur in it.
(ii) Each o f the members o f the unlawful assembly, irrespective o f the participation
in the commission o f the act, is liable for the act as if he actually participated
in committing it.
(iii) The phrase “ in prosecution o f the common object”means that the offence
committed was immediately connected with the common object. But, the
words do not mean “ during the prosecution o f the common object”. Thus,
if an unlawful assembly goes with the common object o f theft, and there
unknown to others, a member rapes someone, the offence o f rape cannot be
attributed to all five. Similar is the case when one o f the members murders
a peaceful intervener; the others cannot be liable.
(iv) Where the common object to commit an offence was different from the
offence which was actually committed, the member not actually committing
the offence will be liable for that offence only if he knew (beforehand) that
such offence was likely to be committed in the course o f the prosecution o f
the common object (Mizaji v State o f U P. AIR 1959 SC 572).
(v) The expression “
know”does not mean a mere possibility, such as might or
might not happen; it imports a high degree o f probability. It indicates a state

o f mind at the time o f the commission o f the offence and not the knowledge
acquired in the light o f subsequent events. Thus, in case o f “free fight”. Sec.
149 could not be invoked. When two opposite factions commit a riot and
fight, it cannot be said that both the parties had any common object.
(vi) Once the common object ceases to exist, Sec. 149 cannot apply. Thus, where
a wounded man had ceased to be member o f the unlawful assembly when he
retired wounded, he cannot be made liable for the subsequent murder under
Sec. 149.
(vii) The court could charge, try and convict less than 5 persons under Sec. 149
provided it comes to the conclusion that 5 or more persons participated in
the incident, and some o f them could not be identified (Maina Singh v State
o f Rajasthan AIR 1976 SC 1084).
However, where six persons were charged under Sec. 302/149; two were
acquitted, the remaining four cannot be convicted under Sec. 149 (provided it is
proved that there were no other persons identified or identifiable). Thus, an unlawful
assembly should consist o f 5 or more named persons, unless there is evidence o f
participation by other persons not identified or identifiable. Where out o f the five
accused, four were acquitted, the remaining fifth accused would be responsible for the
offence committed by him personally without regard to the participation o f others.
Sec. 34 or Sec. 149 could not be invoked in such a case.
Distinction between Sec. 34 and Sec. 149

The two sections have a certain resemblance and may to an extent overlap (both
sections deal with constructive criminality). However, there are certain differences
between the two, viz.-
(i) Sec. 34 is a rule o f evidence and enunciates the principle o f joint liability,
but does not create an offence. Sec. 149 creates a specific substantive offence.
(ii) Under Sec. 34, the number o f persons is immaterial. Under Sec. 149, five (or
more) persons should have entertained the common object.
(iii) ‘Common intention’under Sec. 34 is different from ‘ common object’under
Sec. 149. The former necessarily postulates a pre-arranged plan, while the
latter not. Further, a mere membership o f an unlawful assembly (under Sec.
149) is enough and it is not necessary that one should have participated in the
commission o f the act. This is not so under Sec. 34. Even ‘
knowledge’on the
part o f a member o f unlawful assembly will be enough under Sec. 149.
‘
Common object’ , thus, is wider in scope and amplitude than ‘
common intention’ .
The object o f an unlawful assembly might be common, but the intention o f the several
members might differ. Thus, where the accused came armed with deadly weapons, it
is reasonable to infer that they ‘ knew’death was likely to be caused in the prosecution
o f common object. But, a common intention to kill could not be inferred.
(iv) The common object o f the unlawful assembly must be one o f the objects
mentioned in Sec. 141, while the common intention may be any intention,
for the purpose o f Sec. 34.
Indian Panal Code 309
5. ABETMENT
To 'abet' means to instigate, to help, to encourage. When several persons take part
in the commission o f an offence, each one o f them may contribute in a manner and
degree different from the others to the commission o f it. Secs. 107-120 o f the I.P.C.
deals with abetment (Chapter V).
The Indian Penal Code makes a broad distinction between principal (i.e. the
person abetted or the person who actually commits the crime) and abettor (i.e. the
person who abets the commission o f a crime), but unlike English law it does not
recognize the accessory after the fact (i.e. a person receiving, comforting or assisting
a person in order to enable him to escape from punishment).
Sec. 107: Abetment of a Thing

Abetment consists o f three acts laid down in Sec. 107. Thus, abetment may be:
(i) by instigating a person to commit an offence,
(ii) by engaging in a conspiracy to commit it,
(iii) by intentionally aiding a person to commit it.
(i) Abetment by Instigation

“A person abets the doing o f a thing who instigates any person to do that thing”.
Instigation means the act o f inciting another to do a wrongful act. One may abet the
commission o f an offence by counseling, suggesting, encouraging, procuring or
commanding another to do an act. To instigate means to actively suggest or stimulate
by any means o f language (direct or indirect e.g. letter), whether it takes the form o f
express solicitation, or o f hints, insinuation or encouragement.
Mere acquiescence, silent assent or verbal permission would not constitute
instigation. For instance, A tells B that he intends to murder C. B says ‘
do as you
like’. A kills C. B cannot be said to have instigated A to murder C. Advice per se
does not amount to instigation.
Explanation I to Sec. 107 says that instigation may be constituted by wilful
misrepresentation or wilful concealment o f a material fact by one who is bound to
disclose it. A, a public officer, is authorized by a warrant from a court to apprehend
Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is
Z, and thereby intentionally causes A to apprehend C. Here, B abets by instigation
the apprehension o f C.
A mere request to do a thing may amount to instigation. For instance, A offers
bribe to B, a public servant. B refuses to accept but A commits abetment. Sometimes,
'silent approval’may result in abetment. In Queen v Mohit (3 N.W. P. 316), a woman
prepared herself to become sati in the presence o f the accused persons. It was held
that all those that followed her to the pyre and stood by her crying "Ram Ram”would
be guilt)' o f abetment as they countenanced the act o f becoming sati.
Instigation by a letter is complete as soon as the letter is read by the addressee:
If, however, the letter does not reach the addressee, the sender would be guilty only
o f an ‘attempt to abet’[Ranford (1874) 13 Cox 9).
(ii) Abetment by Conspiracy

It consists ‘
“
when two or more persons engage in a conspiracy for the doing o f a thing
and an act or illegal omission takes place in pursuance o f the conspiracy and in order
to the doing o f that thing”.
‘Conspiracy" consists in the agreement o f two or more persons to do any unlawful
act, or to do a lawful act by unlawful means. It may be noted that for an offence under
Sec. 120-A (Conspiracy), a mere agreement is enough if the agreement is to commit
an offence. But, for an offence under Sec. 107 (ii), a mere combination o f persons or
agreement is not enough; an act or illegal omission must also take place. A mere
conspiracy would not amount to abetment.
If a person prepares, in conjunction with others a copy o f an intended false
document and buys a stamped paper for the purpose o f writing such false document
and also asks for information as to a fact to be inserted in such false document, he
would be guilty for abetment o f forgery [Pandela Venkatasami (1881) 3 Mad 4],
(iii) Abetment by Aid

“A person abets the doing o f a thing who intentionally aids, by an act or illegal
omission, the doing o f that thing”. Explanation II to Sec. 107(iii) says that a person
is said to aid the doing o f an act who, either prior to or at the time o f the commission
o f an act, does anything in order to facilitate the commission o f that act, and thereby
facilitates the commission thereto.
Thus, a person cannot be held guilty o f aiding the doing o f an act when the act
has not been done at all. Mere intention to facilitate, even coupled with an act
calculated to facilitate, is not sufficient to constitute abetment, unless the act which
it is intended to facilitate actually takes place and is facilitated thereby. Thus, if a
servant keeps open the gate o f his master’ s house, so that thieves may enter, and
thieves do not came, he cannot be held to have abetted the commission o f theft. But
if such a person, after having opened the door or before it, informs possible thieves
that he is going to keep the door open, then he would be guilty o f ‘ abetment by
instigation’; or if he had entered into an agreement with the thieves to keep the door
open he would be guilty o f ‘ abetment by conspiracy’ .
A mere giving o f an aid does not make the act an abetment o f an offence, if
the person who gives the aid does not knew that an offence was being committed or
contemplated. The intention should be to aid the commission o f an offence. Similarly,
mere presence at the commission o f an offence does not amount to intentional aid,
unless it was intended to have that effect. To be present and aware that an offence is
about to be committed does not constitute abetment unless the person so present can
influence others or some specific duty o f prevention rests on him.
Aid may be rendered by act as well as illegal omission. Thus, a head constable
who knew that certain persons were likely to be tortured for the purpose o f extorting
confession, purposely kept out o f the way, he was guilty o f abetment. But, an omission
to give information that a crime has been committed does not amount to aiding, unless
such omission involves breach o f legal obligation. It may be noted that a private
person could be guilty if he instigates a public servant to do illegal omission.
The facility given to aid a crime must be such as is essential for the commission
o f the crime. The mere act o f allowing an illegal marriage to take place at one’
s house
does not amount to abetment. Similarly, the mere consent to be present at such
marriage or actual presence in it. However, the priest who officiates and solemnizes
such illegal marriage is guilty o f abetting an offence o f bigamy [Emperor v Umi
(1882) 6 Bom 126]. Similarly, the accused who held the antarpat (screen) during the
performance o f such a marriage would be guilty.
Sec. 108 and General Provisions regarding Abetment

.An ‘abettor’is a person who either abets the commission o f an offence or who abets
the commission o f an act which would be an offence if committed by a person not
suffering from any physical or mental incapacity (i.e. a person capable by law o f
committing an offence), with the same intention or knowledge as that o f the abettor
[Sec. 108].
(1) The offence o f abetment is complete as soon as the abettor has incited
another to commit a crime, whether the latter consents or not, and whether,
having consented, he actually commits the crime or not. In other words, it
is not necessary for the offence o f abetment that the act abetted must be
committed or that the effect requisite to constitute the offence should be
caused [Explanation 11, Sec. 108].
Illustrations:
(a) A instigates B to murder C. B refuses to do so. A is guilty o f abetting
B to commit murder.
(b) A instigates B to murder D. B in pursuance o f such instigation stabs D.
D recovers from the wound. A is guilty o f instigating B to commit
murder.
(c) A hands B a paper bag containing some poison to put into C ’
s food but
suddenly changing his mind tells him not do so. A would be liable for
abetment.
It may be noted that an offence can be abetted though the means, which are
intended to be employed, are such that it is physically impossible that the effect
requisite to constitute the offence should be caused by them (viz. use o f charms to
kill or disable a person).
(2) The offence o f abetment depends upon the intention o f the person who abets,
and not upon the act actually done by the person abetted. The conviction o f
the abettor, therefore, does not depend upon the conviction o f the principal
or the person abetted.
In Jamuna Singh v Stale o f Bihar (AIR 1967 SC 533), the court observed: **
It cannot be held in law that a person cannot ever be convicted o f abetting a certain
offence when the person alleged to have committed that offence in consequence o f
the abetment has been acquitted. The question o f the abettor’s guilt depends on the
nature o f the act abetted and manner in which the abetment was made”.
Illustrations:
(a) A knew that B was behind a bush. This fact was not known to C, A
intending to cause B ’
s death induced C to fire at the Bush. C .fired and
caused B's death. A is liable for abetting, but C will neither be liable for
murder nor for abetting the murder o f B.
(b) A intends to kill B. He mixes poison with some food material and gets
the same placed at the dining table o f B through B ’
s servant who is in
knowledge o f the same. In this case, A will be liable for abetting the
offence o f murder in case B was killed. The servant will also be liable
for abetment by aiding.
(3) To constitute the offence o f abetment, it is not necessary that the person
abetted should (i) be capable by law o f committing an offence, or (ii) have
the same guilty intention or knowledge as that o f the abettor, or any guilty
intention or knowledge [Explanation III, Sec. 108).
A, with a guilty intention, abets a child or a lunatic to commit an act which
would be offence, if committed by a person capable by law o f committing an offence,
and having the same intention as A. Here A, whether the act be committed or not, is
guilty o f abetting an offence.
(4) To constitute the offence o f abetment by conspiracy, it is not necessary that
the abettor should concert the offence with the person who commits it. It is
sufficient if he engages in the conspiracy in pursuance o f which the offence
is committed.
A concerts with B a plan for poisoning Z. It is agreed that A shall administer
the poison. B also explains the plan to C, but without mentioning A’ s name. C
procured the poison and delivered it to B. A administers the poison. Z died. Here,
though A and C have not conspired together, yet C has been engaged in conspiracy
in pursuance o f which Z has been murdered. C, thus, is also liable.
(5) When the abetment o f an offence is an offence, the ‘ abetment o f such an
abetment’is also an offence (viz. A instigates B to instigate C to murder Z.
B does so. Here, both A and B will be liable).
(6) The abetment o f an offence is itself a substantive offence. Abetment is an
offence within the meaning o f the term under Sec. 40, IPC also. Therefore,
attempt to commit the offence o f abetment will be well covered by the
provisions o f Sec. 511, IPC. Thus, where A abetted the commission o f a
murder, but the person was not killed, A will be liable for abetting to attempt
to murder.
6. CRIMINAL CONSPIRACY
Conspiracy is generally a “matter o f inference deduced from certain criminal acts o f

the parties accused, done in pursuance o f an apparent criminal purpose in common
between them”[Grose, J. in Rex v Brisac],
There are three kinds o f conspiracies dealt with in the Code (Chapter V-A).
They are:
(i) Sec. 120-A.

(ii) Secs. 107 and 108 (Abetment by engaging in a conspiracy).
(iii) Sec. 121-A (Conspiracy to wage war).
Sec. 120-A: Definition

"When two or more persons agree to do or cause to be done an illegal act, or an act
which is not illegal by illegal means, such an agreement is designated as criminal
conspiracy”.
An ‘
agreement’implies the meeting o f two minds with reference to a particular
matter, and so long as matters are discussed and views are interchanged, but the plan
o f action has not been settled by the concurrence o f any two or more o f the conspirators,
the stage o f criminal conspiracy would not be considered to have been reached.
Mere passive cognizance o f a conspirator is not sufficient, there must be active
cooperation; in other words, joint evil intent is necessary to constitute an offence.
Thus, where certain members o f a society, found to be revolutionary were not acquainted
with the real object o f the society, they could not be convicted o f the charge o f
conspiracy. Likewise, association o f the accused with the main accused (the former
providing shelter to the latter) or even his knowledge about conspiracy would not
make the accused a conspirator because agreement is a sine qua non o f offence o f
conspiracy [State o f T.N. v Nalini (‘
Rajiv Gandhi Assassination case’
) 1999 CrLJ
3124 (SC)].
However, each conspirator need not know all details o f the scheme. Further, it
is not necessary that every conspirator must be present at every stage o f the conspiracy,
or that he must have done some overt act.
The essential ingredients o f the criminal conspiracy are:
(i) Agreement is the gist o f offence- The gist o f the offence o f conspiracy
lies not in doing the act or effecting the purpose for which the conspiracy
is formed, nor in attempting to do any o f the acts, nor in inducing others
to do them but in the forming o f the scheme or agreement between
parties. Combination is the gist o f the offence o f conspiracy.
O f course, mere intention is not enough. Intention to commit any offence is
never indictable. A might intend to rob a millionaire. That is not an offence. But, if
A and B agree so to do, it is an offence. So long as the design remains in mind or
constitute intention only it is not indictable. But when two or more agree to carry into
effect their design, the very plot is an act in itself, and the act o f each o f the parties,
promise against promise, actus contra actum, becomes punishable.
(ii) Overt act when necessary- Proviso to Sec. 120-A lays down that no
agreement, except an agreement to commit an offence, shall amount to
a criminal conspiracy unless some act besides the agreement is done by
one o r more parties to such agreement in pursuance thereof. Thus, in
case o f an agreement to commit an offence, an agreement will be enough.
But in other cases (e.g., a conspiracy to commit a civil wrong or a tort),
some overt act is necessary, viz. acts signifying agreement or preparatory
to the offence or the acts constituting the offence itself.
If the parties agree to do an illegal act, they shall be guilty o f criminal conspiracy,
though the illegal act agreed to be done has not been done. An ‘ illegal’act implies
an act which is contrary to or forbidden by law. An illegal act may be non-criminal
and may not be punishable as such.
(iii) Two or more persons must agree- It is clear that two or more persons
are necessary for conspiracy to commit an offence. ‘ A person cannot
conspire with himself. It is also necessary that these persons must be
natural persons. Thus, a director, who is the “
one man”o f the “one man
company”, cannot be convicted o f conspiracy with the company, inspite
o f the fact that company is a separate legal entity.
In English law if a man and his wife are the only parties to conspiracy they
cannot be indicted for conspiracy because legally they are deemed to be one person,
but such an indictment will not be barred in India.
(iv) Justification o f conspiracy-The general justification o f conspiracy as an
inchoate (incomplete) crime is that it enables preventive action to be
taken against intended offenders in circumstances where it is clear that
a fixed intention to commit the crime has been formed. Secondly,
conspiracy has been defended on the ground that the combination o f two
or more persons to commit an illegal act gives a momentum to the act
which justifies its punishment at the earliest possible stage.
The argument is generally based on danger o f combination to community.
However, this argument is criticized: “Mere number do not affect the quality o f the
act”(C.J. Parker). A single person may be as dangerous as a combination. The
doctrine grew out o f mistake and has no real basis in law.
(v) Whether conviction o f one person possible- No person can be convicted
for conspiracy if the charge against all other conspirators has failed, or if
other alleged conspirators are acquitted. However, where the one accused
has to be acquitted (because he was a public servant and was prosecuted
without obtaining sanction under Cr. P.C.), the other could be convicted
on a charge o f conspiracy. The Supreme Court has also held that “ it is not
essential that more than one person should be convicted o f the offence o f
conspiracy. If it is proved that two or more were engaged in a conspiracy,
although they could not be caught, one alone may be convicted”[Bimbdhar
Pradhan v State o f Orissa AIR 1956 SC 649].
(vi) Explanation to Sec. 120-A- It is immaterial whether the illegal act is the
ultimate object o f such agreement, or is merely incidental to that object.
(vii) P roof o f conspiracy- To establish the charge o f conspiracy there must be
agreement, there need not be proof o f direct meeting or combination nor
need the parties be brought into each other’ s presence; the agreement
may be inferred from circumstances raising a presumption o f an unlawful
plan. In fact, in cases o f conspiracy direct evidence is seldom available.
It is generally a matter o f inference deducible from overt criminal acts
o f the involved parties.
On the basis o f doctrine o f agency, the act done by one conspirator (or the
statements made by him) is admissible in evidence against the co-conspirators. Even
if part o f the acts in pursuance o f the conspiracy is done in India, cognizance o f the
offence can be taken in India.
(viii) A substantive and continuing offence- Conspiracy itself is a substantive
offence (punishable as such) different from the offence to commit for
which the conspiracy was entered into. Thus, if the accused are charged
with having conspired to do three different categories o f illegal acts, the
mere fact that all o f them could not be convicted separately in respect
o f each o f the offences has no relevancy in considering the question
whether the offence o f conspiracy has been committed
Conspiracy is a continuing offence till it is executed or rescinded or frustrated
by choice or necessity. Whoever is a party to the conspiracy during the period for
which he is charged is liable. Conspirators may appear and disappear from stage to
stage in the course o f a conspiracy. It is not necessary that a person should be
participant in a conspiracy from start to finish.
Distinction between Conspiracy and Abetment by Conspiracy

Conspiracy is a substantive offence under Sec. 120-A (Thus, a person could be
charged for the conspiracy as well as for the offence committed). It has nothing to do
with abetment (Sec. 107), which is also a substantive offence.
Under Sec. 107, conspiracy is a form o f an abetment. Sec. 120-A provides an
extended definition o f conspiracy covering acts which do not amount to abetment by
conspiracy under Sec. 107. Where a criminal conspiracy' amounts to an abetment
under Sec. 107, it is unnecessary to invoke the provisions o f Sec. 120-A.
In case o f conspiracy under Sec. 107, a mere combination o f persons or agreement
between them is not enough; an act or illegal omission must take place in pursuance
o f the conspiracy. In case o f Sec. 120-A the mere agreement is enough, if it is to
commit an offence.
Thus, a mere conspiracy would not amount to abetment. If conspirators were
detected before they had done more than discussed plans with a general intention to
commit an offence, they would not be liable as abettors.
Distinction between Conspiracy and Joint Liability

Both, Sec. 120-A and Sec. 34, resemble each other in that there is ‘
common intention’
in both to do an illegal act But, under Sec. 120-A, a mere engagement to do an illegal
act is an offence, whereas under Sec. 34, a criminal act is actually committed in
furtherance o f the common intention o f all.
Distinction between Conspiracy and Attempt

Law o f criminal conspiracy is an outgrowth o f the larger law o f criminal attempt. The
two have many features in common and are based very largely on the general principle.
Often the acts from which conspiracy is inferred will evidence an attempt to commit
the crime. However, the two are not the same. One may become guilty o f conspiracy
long before his act has come so dangerously near to completion as to make him
criminally liable for the attempted crime.
Sec. 120-B: Punishment for Conspiracy

Section 120-B lays down that if the offence conspired is punishable with death,
imprisonment for life or rigorous imprisonment for two years or more, the offender
becom es liable as an abettor. In any other case, he is liable to be punished with
imprisonment up to six months, or with fine, or both.
Thus, the punishment for criminal conspiracy is more severe o f the agreement
is one to commit a serious offence (e.g. murder, rape); it is less severe for a less
serious offence (e.g. hurt).
7. SEDITION
All States have the same right o f self-preservation as their subjects, and States like
men have from time immemorial, exacted safeguards for their own preservation and
protection. Sedition is an offence against the State (Chapter VI). Other such offences
include- waging war or treason against the Government (Sec. 121), assaulting high
officers like the President/ Governor (Sec. 124), and, suffering escape o f or harbouring
a State prisoner or a prisoner o f war (Secs. 128-130).
Sec. 124-A: Sedition

Sedition consists in attempt made, by meetings or speeches or by publications, to
disturb the tranquility o f the State, which do not amount to treason. As per Sec. 124-
A, the following are two essentials o f sedition:
(i) bringing or attempting to bring into hatred or contempt, or exciting or
attempting to excite disaffection towards the government established by law
in India, and
(ii) such act or attempt may be done by words (either spoken or written), or
signs, or visible representation, or otherwise.
The expression “disaffection” includes disloyalty and all feelings o f enmity
{Explanation 1 to Sec. 124-A).
To constitute an offence under Sec. 124-A, it is not necessary that one should
excite or attempt to excite mutiny or rebellion or any kind o f actual disturbance, it
would be sufficient that one tries to excite feeling o f hatred or contempt towards the
government. The essence o f the offence o f sedition is incitement to violence; mere
abusive words are not enough and that “ public disorder or the reasonable anticipation
or likelihood o f public disorder”is the gist o f the offence [Niharendu v Emperor
(1942) F.C.R.38].
In Kedarnath Singh v State o f Bihar (AIR 1962 SC 955), the Supreme Court
upheld the constitutional validity o f Sec. 124-A. It was held that only acts which
constitute incitement to violence or disorder would be punishable under this section,
and acts not having such tendency are not punishable. Therefore, this section does not
violate Art. 19 (1) (a) o f the Constitution.
Both successful and unsuccessful attempts to excite disaffection were placed on

the same footing. S o even if a person had only tried to excite the feeling he could be
convicted. Whether any disturbance or out-break was actually caused by such attempt
was absolutely immaterial [Queen-Empress v Bal Gangadhar Tilak (1897) 22 Bom
112].
Other essential ingredients o f the offence o f sedition are:
(i) To urge people to rise against the Government, or not to obey the lawful
authority o f the Government, or to subvert or resist the authority amounts
to “disaffection”. However, in Emperor v Beni Bhusan Roy [(1907) 34
Cal 991], the accused incited the people to attain ‘ Swaraj’ . It was held
that ‘Swaraj’did not necessarily mean exclusion o f the existing
Government, but its ordinary acceptance was Home Rule under the
Government. Therefore, it did not amount to sedition.
(ii) Disaffection may be excited in a number o f ways. Writing o f any kind,
poem, drama, story, novel or essay may be used for this purpose. But
seditious writing, if it remains in the hands o f the author or unpublished
does not constitute this offence because publication o f some kind is
necessary. However, this publication may be made in any manner, as for
instance, by post. It can even take the form o f a woodcut or engraving
o f any kind.
(iii) Not only the author o f seditious matter but also whosoever uses in any
way words or printed matter for the purpose o f exciting feelings o f
disaffection is liable. Thus, the printer, the publisher, the editor or the
owner/proprietor o f the press o f a seditious publication is also liable like
the author unless he proves that he was absent and was not aware o f the
contents o f the paper (lack o f knowledge). However, it is no defence to
show that the seditious articles are merely copied from foreign newspapers
as items o f news. Likewise, re-publication o f a seditious article, used as
an exhibit in a case o f sedition, is not justifiable. Similarly, an editor is
liable for unsigned seditious letters appearing in newspapers.
(iv) In considering the intention o f the accused, the time, the place, the
circumstances and the occasion o f publication, all are important. It is
necessary to take into consideration the state o f the country and o f the
public mind at the date o f publication.
Bona fide Criticism of Government Permissible

Explanations 2 and 3 to Sec. 124-A lays down that comments expressing disapprobation
o f the (i) measures o f the Government with a view to obtain their alteration by lawful
means, or (ii) administrative or other action o f the Government, without exciting (or
attempting to excite) hatred, contempt or disaffection, do not constitute sedition.
Thus, the strong words used to express disapproval o f the measures or policies
o f Government with a view to their improvements or alternatively lawful means
would not come within the section. Similarly, to suggest a change in the form o f
Government; or any agitation for the repeal o f an Act or an attempt to remove from
power the ministers in office in any State do not amount to sedition if no unlawful
means are employed. Likewise, a general criticism o f certain officers cannot be deemed
to be a criticism o f Government, because they are only individuals different from the
abstract conception which is Government.
Punishment for Sedition

Sedition is a substantive offence, punishable under Sec. 124-A, which provides for
punishment o f (i) life-imprisonment, to which fine may be added, or (ii) imprisonment
up to three years, to which fine may be added, or (iii) fine only. Thus, the amount and
intensity o f disaffection is material in dealing with the question o f punishment.
8. CULPABLE HOMICIDE AND MURDER
Homicide (Latin homo- man, cide-1 cut) is the killing o f a human being by a human
being. Causing the death o f an animal is not murder. It might amount to the offence
o f mischief or to cruelty to animals. It may be lawful or unlawful. Lawful homicide
(cases falling under General Exceptions- Secs. 76-106)) is o f two types - excusable
and justified homicide. Unlawful homicide includes -
(a) culpable homicide not amounting to murder (Sec. 299),
(b) murder (Sec. 300), and,
(c) homicide by rash or negligent acts (Sec. 304-A).
Sec. 299: Culpable Homicide

Section 299 defines culpable homicide which is a wider offence than that o f murder:
"Whoever causes death, (a) by doing an act with the intention o f causing death, or
(b) with the intention o f causing such bodily injury as is likely to cause death, or (c)
with the knowledge that he is likely by such act to cause death, commits the offence
o f culpable homicide.”
Illustrations
(a) A lays sticks and turf over a pit, with the intention o f thereby causing
death, or with the knowledge that death is likely to be thereby caused.
Z, believing the ground to be firm, falls in and is killed. A has committed
the offence o f culpable homicide.
(b) A knows Z to be behind a bush. B does not know it. A, intending to
cause, or knowing it to be likely to cause Z ’s death, induces B to fire
at the bush. B fires and kills Z. Here B may be guilty o f no offence, but
A has committed the offence o f culpable homicide.
(c) A, by shooting at a foul with intent to kill and steal it, kills B, who is
behind a bush; A not knowing that he was there. Here, although A was
doing an unlawful act, he was not guilty o f culpable homicide, as he did
not intend to kill B, or to cause death by doing an act that he knew was
likely to cause death.
Essential Ingredients of Sec. 299

(1) Whoever causes death - It is immaterial if the person whom the accused
intended to kill was not killed but some other person. The death could be
caused by words deliberately used by a person. For example, a seriously ill
person may die by hearing some agitating words.
The death must result as a proximate and not a remote consequence o f the act
o f violence. There should not be the intervention o f any considerable change o f
circumstances between the act o f violence and the death. Where the victim died three
weeks after the occurrence due to negligence on his part and sepsis consequent to the
bad handling o f the wound, this section was held not attracted.
(2) By doing an act with the intention o f causing death - It is important to note
that acts done extend to illegal omission also.
Intention is a question o f fact which is to be gathered from the acts o f the
parties (viz. nature o f the weapon used, the part o f the body on which the blow was
given, the force and number o f blows, etc.). The legal maxim is that everyone must
be presumed to intend the normal consequences o f his act. Intention does not imply
or assume the existence o f some previous design, it means an actual intention, the
existing intention o f the moment. Causing serious injury on a vital part o f the body
o f the deceased with a dangerous weapon must necessarily, lead to inference that the
accused intended to kill.
(3) With the intention o f causing such bodily injury as is likely to cause death - It
means an intention to cause a particular injury, which injury is, or turns out to
be, one likely to cause death. It is not the death itself which is intended nor the
effect o f the injury. Thus, where bodily injury sufficient to cause death is actually
caused, it is immaterial to go into the question o f whether the accused had
intention to cause death. For example, where a person falsely arrested in a
dacoity case, and mercilessly beaten at the police station which resulted in his
death; beating for exorcising evil spirit resulting in death.
(4) With the knowledge that he is likely by such act to cause death - Knowledge
in comparison to intention is a strong word and imports a certainty and not
merely a probability. Intention is the purpose or design with which an act is
done. It is the fore knowledge o f the act coupled with the desire o f it
Knowledge is an awareness o f the consequences o f the act. A person who
voluntarily inflicts injury such as to endanger life must always, except in the
most extraordinary circumstances, be taken to know that he is likely to cause
death (e.g. when the accused fired his gun in the air to scare away the
opposite party and in the act one stray pellet caused gunshot wound to a
person killing him).
The word ‘ knowledge’includes all cases o f rash acts by which death is caused,
for rashness imports a knowledge o f the likely result o f an act which the actor does
inspite o f the risk. In some cases, gross negligence may amount to knowledge. For
example, where the accused kills a person by hitting him under the belief that he was
hitting at a ghost.
In Palani Goundan v Emperor [1919 LLR 547 (Mad)], the accused struck his
wife on the head with a ploughshare, which made her unconscious. Believing her to
be dead, in order to lay the foundation o f a false defence o f suicide by hanging, the
accused hanged her. The hanging actually caused her death. The court observed that
the intention o f the accused must be judged not in the light o f actual circumstances,
but in the light o f what he supposed to be the circumstances. It follows that a man
is not guilty o f culpable homicide if his intention was directed only to what he
believes to be a lifeless body. It was held that the accused cannot be convicted o f
culpable homicide or murder, but for the offence o f grievous hurt and attempt to
create false evidence by hanging his wife (However, the accused could be guilty o f
murder if he had an intention to kill the deceased when the deceased was alive).
Death caused without ‘ requisite intention or knowledge’is not culpable homicide
[see illustration (c)]. In the absence o f intention or knowledge, the offence committed
may be hurt or grievous hurt. It may be noted that ordinarily, without corpus delicti
(i.e. dead body o f the victim), it is dangerous to convict. However, if there is strong
evidence the accused can be convicted.
Explanations to Sec. 299

Explanation I: “ A person who causes bodily injury to another who is labouring under
a disease, disorder or bodily infirmity, and thereby accelerates the death o f the other,
shall be deemed to have caused his death”.
However, it is one o f the elements o f culpable homicide as contained in Sec.
299 and the court must be satisfied : (1) that the death at the time when it occurs is
not caused solely by the disease; and (2) that it is caused by the bodily injury to the
extent, that it is accelerated by such injury.
It is important that the accused knows that condition o f the deceased was such
that his act was likely to cause death. When the accused has no knowledge o f victim’
s
ailment, the accused held guilty o f grievous hurt.
Explanation II: “Where death is caused by bodily injury, the person who causes such
bodily injury, shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been prevented”.
Even the fact that victim dies because o f wrong treatment could not absolve the
accused o f his guilt. If victim dies as a result o f the original injuries as well as the
operation, the accused will be guilty.
Explanation III: The causing o f the death o f child in the mother’ s womb is not
homicide. But it may amount to culpable homicide to cause the death o f a living
child, if any part o f that child has been brought forth, though the child may not have
breathed or been completely bom.
Sec. 301
Culpable homicide by causing death o f person other than person whose death was
intended - If a person by doing anything which he intends or knows to be likely to
cause death, commits culpable homicide by causing the death o f any person, whose
death he neither intends nor knows himself to be likely to cause, the culpable homicide
is said to be committed.
This section embodies what the English authors describe as the doctrine o f
transfer o f malice or the trans-migration o f motive. An accident makes no difference
. j f A makes a thrust at B, and C throwing himself between the two dies. A will be
guilty. Where wife gave poisoned food to her husband, eaten also by four others. One
person died. She was held guilty o f murder. Similarly, held in Public Prosecutor v
Uushunooru Suryanarayanmoorthy [(1912) 13 Cr. L.J. 145], where the accused with
the intention o f killing A, gave him some poisoned halva. A ate a portion o f it and
threw the rest away and this was picked up by accused’
s brother-in-law’
s daughter (a
girl o f 8 years) who ate it and also gave some to another child. The two child died,
but A eventually recovered.
Sec. 300: Murder

“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention o f causing death, or -
2ndly - I f it is done with the intention o f causing such bodily injury as the offender
knows to be likely to cause the death o f the person to whom the harm is caused, or-
3rdly - I f it is done with the intention o f causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course o f nature to
cause death, or -
4thly - I f the person committing the act knows that it is so imminently dangerous that
it must, in all probability cause death or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk o f causing death or
such injury as aforesaid.”
Illustrations
(a) A shoots Z with the intention o f killing him. Z dies in consequence. A
commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to
cause his death, strikes him with the intention o f causing bodily injury. Z
dies in consequence o f the blow. A is guilty o f murder, although the blow
might not have been sufficient in the ordinary course o f nature to cause death
o f a person in a sound state o f health.
(d) A without any excuse fires a loaded cannon into a crowd o f persons and kills
one o f them. A is guilty o f murder, although he may not have had a
premeditated design to kill any particular individual.
Distinction between Culpable Homicide and Murder

(I) In the scheme o f the Penal Code, ‘
culpable homicide’is genus and ‘
murder’
its species. All ‘
murder’is ‘culpable homicide’but not vice versa. Speaking
generally ‘ culpable homicide’(manslaughter) is ‘ culpable homicide not
amounting to murder’ . Murder is an aggravated form o f culpable homicide
(Anda v State o f Rajasthan AIR 1966 SC 148).
(II) For the purpose o f fixing punishment, proportionate to the gravity o f this
generic offence, the Code recognises three degrees o f culpable homicide.
(a) Culpable homicide o f first degree - gravest form o f culpable homicide
i.e. murder under Sec. 300, punishable under Sec. 302.
(b) Culpable homicide of second degree - punishable under the 1st part of
Sec. 304.
(c) Culpable homicide o f third degree - punishable under the 2nd part of
Sec. 304 (lowest punishment).
(Ill) The safest way o f approach to the interpretation and application o f these
provisions, as suggested by the Supreme Court, is to keep in focus the key
words used in the various clauses of Secs. 299 and 300 (Slate o f A.P. v R.
Punnayya, AIR 1977 SC 45).
There is a broad difference between the offences of murder and culpable
homicide. In the case o f murder, the offender has a positive intention to cause the
death o f the victim. In the case o f culpable homicide the intention or knowledge is
not so positive or definite. The injury caused may or may not cause death. Degree of
probability o f death ensuing is high in case o f murder. In cl. (3) of Sec. 300 instead
o f the words ‘likely to cause death’, occurring in the corresponding clause (b) of Sec.
299, the words ‘ sufficient in the ordinary course o f nature’have been used.
Clause (b) o f Sec. 299 corresponds with els. (2) and (3) of Sec. 300. The
distinguishing feature o f the mens rea requisite under cl. (2) is the knowledge possessed
by the offender regarding the particular victim being in such a peculiar condition or
state o f health (e.g. enlarged spleen) that the intentional harm caused is likely to be
fatal, notwithstanding the fact that such harm would not in the ordinary way of nature
be sufficient to cause death o f a person in normal health (see illustration (b) to Sec.
300). Clause (b) o f Sec. 299 does not postulate any such knowledge on the part of
the offender. Thus, if the assailant had no knowledge about the disease of the victim,
nor an intention to cause death or bodily injury sufficient in the ordinary course of
nature to cause death, the offence will not be murder, even if the injury which caused
the death, was intentionally given.
Analysis of Sec. 300

Clause 1: A d by which the death is caused is done with the intention o f causing
death - A question o f intention is always a matter o f fact. Where the accused gave
repeated knife blows to the victim resulting in his death, it was held that the intention
was to kill.
Clause 2: With the intention o f causing such bodily injury as the offender knows to
be likely to cause death - The expression “intention to cause bodily injury as is likely
to cause death”merely means an intention to cause a particular injury which injury
is, or turns out to be, one likely to cuase death. It is not the death itself which is
intended nor the effect o f the injury.
A person inflicting a violent blow on the head of his victim with a lethal
weapon such as an iron-stone must be presumed to intend to cause such injury as he
knew was likely to cause death.
Clause 3: With the intention o f causing bodily injury to any person sufficient in the
ordinary course o f nature to cause death - Clause “ thirdly”consists o f two parts.
Under the first part, it has to be shown that there was an intention on the part o f the
accused to inflict the particular injury found on the body o f the deceased i.e. the
injury caused was not unintentional or accidental. The second part requires that the
bodily injury intended to be inflicted was sufficient in the ordinary course of nature
to cause death. When both these parts are satisfied, then the offence is under Sec. 300
•thirdly”. It does not matter that there was no intention (or knowledge) to cause death.
(yjrsa Singh v Slate o f Punjab, AIR 1958 SC 465).
E ven if none o f the injuries by themselves was sufficient in the ordinary course
o f nature to cause the death, but were cumulatively sufficient to cause death in the
ordinary course of nature, the case is covered by Sec. 300 “ thirdly”(Brij Bhushan v
State o f U P, AIR 1957 SC 460).
In Raj-want Singh v State o f Kerala (AIR 1966 SC 1874), while committing a
burglary', death took place as a direct result of the acts o f the accused (the nostrils o f
the victim were closed and he died of breathlessness). It was held that thirdly was
attracted. In another case, there was an intention to cause an injury to the victim. A
single knife blow was administered, which accidently fell upon the left shoulder
cutting a wound through it and tearing up vital arteries which came in the path of
knife. The injury was sufficient in the ordinary course of nature to cause death. Held
that to come under thirdly o f Sec. 300, the intention to cause the requisite type of
injury is absolutely necessary.
In Gurmail Singh v State o f Punjab 1982 Cr.LJ 1946(SC), when ‘ A’attempted
to intervene to save 'B’and ‘C ’from further harm a barcha was given by accused ‘ D’
which landed on ‘ A’ . There was nothing to indicate in the evidence that 'D' ever
intended to cause any injury to ‘A’ . It was held that it could not be said that accused
‘D ’intended to cause that particular bodily injury which in fact was found to have
been caused. It does not matter that injury was sufficient in the ordinary course o f
nature to cause death. Thirdly was not attracted.
Clause 4: Person committing the act knows that it is so imminently dangerous that
it must, in all probability, cause death or such bodily injury as is likely to cause
death... without any excuse for incurring the risk o f causing death - Unlike the first
three clauses o f Sec. 300, intention is not an essential ingredient of this clause. The
4th clause contemplates the doing of an imminently dangerous act in general, and not
the doing o f any bodily harm to any particular individual [see illustration (d) to sec.
300]. This clause cannot be applied until it is clear that clauses 1, 2 and 3 o f the
section each and all o f them fail to suit the circumstances.
An act done with the knowledge of its consequences is not prima facie murder.
It becomes murder only if it can be positively affirmed that there was no excuse.
When a risk is incurred - even a risk of the gravest possible character which must
normally result in death - the taking of that risk, is not murder, when there is an
excuse to do so (Emperor v Dhirajia, AIR 1940 All. 486). In the above case, a
woman jumped into a well with a baby in her anns due to panic or fright caused by
her incoming husband with whom she had quarrelled.
The court held that the act of jumping into a well with a baby in one's arm was
so imminently dangerous an act that however primitive a person may be and however
frightened he or she may be, the knowledge of the likely consequences must be
supposed to have remained with him or her. The court held it to be a case o f culpable
homicide. However, she had an excuse and that excuse was panic or fright Thus, the
clause “ 4thly" was not attracted. She was held guilty o f culpable homicide not
amounting to murder under Sec. 304.
However, in Gyarsibai v State (AIR 1953 M.B. 61), where the woman jumped
into a river with her three children as her life had become unbearable on account o f
family discord, it was held that there was no excuse for the accused for incurring the
risk o f causing death o f her children. Thus, the case was held to be covered under
4thly o f Sec. 300.
Sec. 302: Punishment for Murder
“Whoever commits murder shall be punished with death or imprisonment for life, and
shall also be liable to fine.”It is to be noted that the death sentence is awarded only
in ‘
rarest o f rare’cases e.g. assassination o f prime minister Indira Gandhi.
Sec. 304: Punishment for Culpable Homicide N ot Amounting to Murder
Part I o f this section provides punishment o f imprisonment for life or imprisonment

for 10 years and fine. Part II provides imprisonment for 10 years, or with fine, or
both. If the offence comes under clause 2 o f Sec. 299 (i.e. with intention), than Part
I applies. If offence comes under clause 3 o f Sec. 299 (only knowledge), than Part
II applies.
If the offence falls within clauses 1, 2 and 3 o f Sec. 300 but is covered by any
o f the five exceptions, it will be punishable under Part I. If the offence comes under
clause 4 o f Sec. 300 but is covered by any o f the exceptions, it will be punishable
under Part II.
Exceptions to Offence of Murder

Exceptions to Sec. 300 o f the IPC reduce the offence o f murder to that o f culpable
homicide not amounting to murder. The five exceptions specified in this section are
special exceptions in addition to the general exceptions mentioned in Chapter IV. The
special exceptions are - (1) Provocation, (2) Right o f private defence, (3) Exercise
o f legal powers, (4) Absence o f premeditation and heat o f passion, and, (5) Consent.
Strictly speaking, they are not exactly defences, but are in the nature o f mitigating
or extenuating circumstances. Burden is on the accused to establish circumstances
which would bring his case within any exception. However, the general burden to
establish the guilt o f the accused is on the prosecution.
Exception I, Sec. 300 (Provocation)

Culpable homicide is not murder if the offender, whilst deprived o f the power o f self-
control by grave and sudden provocation, causes the death o f the person who gave
the provocation or causes the death o f any other person by mistake or accident.
The above exception is subject to the following provisos
First - That the provocation is not sought or voluntarily provoked by the offender as
an excuse for killing or doing harm to any person.
Second - That the provocation is not given by anything done in obedience to the law
or by a public servant in the lawful exercise o f the powers o f such public servant.
Third - That the provocation is not given by anything done in the lawful exercise o f
the right o f private defence.
Explanation - Whether the provocation was grave and sudden enough to prevent the
offence from amounting to murder, is a question o f fact
Illustrations
(a) A, under the influence o f passion excited by a provocation given by Z,
intentionally kills Y, Z ’
s child. This is murder, in as much as the provocation
is not given by the child, and the death o f the child was not caused by
accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires at
Y, neither intending nor knowing himself to be likely to kill Z, who is near
him, but out o f sight. A kills Z. A has not committed murder, but merely
culpable homicide.
(c) A is lawfully arrested by Z, a baillif. A is excited to sudden and violent
passion by the arrest, and kills Z. This is murder, in as much as the provocation
was given by a thing done by a public servant in the exercise o f his powers.
(e) A attempts to pull Z ’
s nose. Z, in the exercise o f the right o f private defence,
lays hold o f A to prevent him from doing so. A is moved to sudden and
violent passion in consequence, and kills Z. This is murder, in as much as
the provocation was given by a thing done in the exercise o f the right o f
private defence.
(f) Z strikes B. B is, by this provocation, excited to violent rage. A a bystander,
intending to take advantage o f B ’ s rage, and to cause him to kill Z, puts a
knife into B ’s hand for that purpose. B kills Z with the knife. Here B may
have committed only culpable homicide, but A is guilty o f murder.
The essential ingredients o f first exception to Sec. 300 are:
(i) The provocation must be both grave and sudden and should not be from
the side o f the accused.
(ii) The provocation must be such as would deprive any reasonable man
(and not a hasty or hot-tempered or unusually excitable person) o f his
power o f self-control over himself.
(iii) The act o f killing must be done under the immediate impulse o f
provocation. It must be distinguished from provocation which inspires
an actual intention to kill.
(iv) The offender must not have reflected, deliberated or cooled, between
the provocation and the mortal stroke. However, the mental background
created by the previous act o f the victim may be taken into consideration
for ascertaining whether the subsequent act caused grave and sudden
provocation.
(v) The offender must have caused the death o f the person who gave the
provocation or that o f any other person by mistake or accident.
(vi) Mere words or gestures or confession are enough in some cases to cause
grave and sudden provocation (However, under English law, it is not so)
(K.M. Nanavati v Stale o f Maharashtra AIR 1962 SC 605).
In the above case, the wife confessed to husband o f her illicit intimacy with one
Ahuja. The accused drove his wife and children to a cinema, left them there, went to
his ship, took a revolver, drove his car to Ahuja’
s flat and shot him dead. Between
his wife’
s confession and Ahuja's murder, three hours had elapsed, and therefore the
accused had sufficient time to regain his self-control. His conduct clearly shows that
the murder was a deliberate and calculated one. Consequently, Exception 1 do not
apply.
Where an accused sees his wife in company with her lover and kills her, he
must be held to have acted under grave and sudden provocation (Falla v Emperor,
30 Cr. L.J. 481). However, mere suspicion o f unchastity would not be a sudden
provocation. A statement by the wife that she intends to commit adultery or live with
another person is not grave and sudden provocation (1971 Raj LW 486).
Exception 2, Sec. 300 (Right of Private Defence)

"Culpable homicide is not murder if the offender, in the exercise in good faith o f the
right o f private defence o f person or property, exceeds the power given to him by law
and causes the death o f the person against whom he is exercising such right o f
defence without premeditation, and without any intention o f doing more than is
necessary for the purpose o f such defence.”
This exception deals with death caused by the excessive exercise o f the right
o f private defence, provided the accused caused the death o f a person without
premeditation and when the accused caused the death o f a person he had no intention
o f doing more harm than was necessary for the purpose o f defence.
Exception 3, Sec. 300 (Exercise of Legal Powers)

The ingredients o f this exception are : (1) The person accused must be a public
servant. (2) He must believe in good faith that the act which resulted in the death was
lawful and necessary for the due discharge o f his duties. (3) He must bear no ill-will
to the deceased.
Where a suspected thief who has been arrested by a police officer, escapes by
jumping down from the train and the police officer finding that he is not in a position
to apprehend him, shoot at him and kills him. Held that the case is covered by
Exception 3 to Sec. 300.
Exception 4, Sec. 300 (Sudden Quarrel)

"Culpable homicide is not murder if it is committed (i) without premeditation (ii) in
a sudden fight (iii) in the heat o f passion upon a sudden quarrel and (iv) without the
offender having taken undue advantage or acted in a cruel or unusual manner.”
Explanation - It is immaterial in such cases which party offers the provocation or
commits the first assault.
Where, on a sudden quarrel, a person in the heat o f the moment picks up a
weapon which is handy and causes injuries, one o f which proves fatal, he would be
entitled to the benefit o f this Exception provided he has not acted cruelly. Where the
deceased was an old man and was innocent intervener who was asking the parties not
to quarrel, there was no justification for the appellant to have given such a serious injury
(a blow by iron bar on the head) to him resulting in his death. Moreover, the appellant
acted in a cruel manner (Pandurang v State o f Maharashtra AIR 1978 SC 1082).
Indian P en al C o d e 327
Exception S, Sec. 300 (Death by Consent)
-Culpable hom icide is not murder when the person whose death is caused, being the
age o f eighteen years, suffers death or takes the risk o f death with his own consent.”
Illustration: A, by instigation, voluntarily causes Z, a person under eighteen years o f
age, to com m it suicide. Here, on account o f Z ’
s youth, he was incapable o f giving
consent to his own death; A has therefore abetted murder.
In order to bring the offence under Exception 5, the consent by the deceased must
be given unconditionally and without any reservation In a case, the wife flatly refused
to g o back to her mother and said that if her husband insisted on her doing so she would
rather be killed. The husband killed her. Here the consent was not the type which is
contemplated by Exception 5, and the husband was held guilty o f murder.
A doctor pleading consent to an operation which proved fatal must prove that the
patient accepted the risk and was fully aware o f it. Where the accused because o f
successive failures in examinations decided to end his life and informed the wife o f his
decision, and the wife asked him to first kill her and then kill himself, and the accused
killed his wife but was arrested before he could kill himself, it was held that the case
is covered by Exception 5 (Dasarath v State o f Bihar AIR 1958 Pat 190). The consent
was not given by deceased under a fear o f injury or under a misconception o f fact.
Sec. 304-A: Causing Death by Negligence

•
‘Whoever causes the death o f any person by doing any rash or negligent act not
amounting to culpable homicide, shall be punished with imprisonment o f either
description for a term which may extend to two years, or with fine, or with both.”
This section does not apply to the following cases :
(i) death is caused with any intention or knowledge (voluntary commission o f
offence), i.e. the act must not amount to culpable homicide,
(ii) death has arisen from any other supervening act or intervention which could
not have been anticipated, i.e. death was not the direct or proximate result
o f the rash or negligent act,
(iii) death occurred due to an accident (e.g. where an accused on dark night
believing a man to be a ghost killed him.
Sec. 304-A applies where there is a direct nexus between the death o f a person
and the rash or negligent act. The act must be the causa causans, it is not enough that
it may have been the causa sine qua non. ‘ Criminal rashness’is hazarding a dangerous
or wanton act with the knowledge that it is so, and that it may cause injury, but
without intention to cause injury, or knowledge that it will probably be caused. The
criminality lies in running the risk o f doing such an act with recklessness or indifference
as to its consequences (i.e. without belief in the result o f such doing).
‘
Criminal negligence’is the gross and culpable neglect or failure to exercise the
reasonable and proper care and precaution to guard against injury either to the public
generally or to a particular individual (Bala Chandra v Stale oj Maharashtra AIR
1968 SC 1319). An illegal “
omission”if negligent, may come under this section.
Rash and negligent driving - The mere fact that a fatal motor run-over accident took
place would not by itself be enough to make the driver liable under Sec. 304-A. In
order to impose criminal liability on the accused, it must be found as a fact that a
collision was entirely or at least mainly due to rashness or negligence on the part of
the driver. An error of judgement on the part of the driver would not make him liable
under Sec. 304-A.
In Cherubin Gregory v State o f Bihar (AIR 1964 SC 205), the accused fixed
up a naked live electric wire in the passage to latrine so that no trespasser may come
and use the latrine. There was no warning that the wire was live. A trespasser who
manages to enter the latrine without touching the wire, happens to receive a shock
while coming out and dies soon. It was held that the act of the accused was an
actionable wrong under Sec. 304-A. The mere fact that the person entering a land is
a trespasser does not entitle the owner or occupier to inflict on him personal injury
by direct violence or indirectly by doing something on the land the effect of which
he must know was likely to cause serious injury to the trespasser.
In S.N. Hussain v State o f A.P (AIR 1972 SC 685), the accused, a bus driver,
finding a level crossing gate open at a time when there is no train scheduled to pass,
tried to cross the railway line and the bus collided with an on-coming goods train
resulting in death of four passengers and injuring others. Held that there was no
rashness on the part of the driver: “ It is very clear from the evidence that the driver
received no warning either from the approaching train or from passengers in bus in
sufficient time to prevent the collision. The train while approaching the level crossing
did not give any whistle. The railway track was at a higher level and the road was
lined by babool trees and, therefore, a passing train coming from a distance was not
visible from the bus.”
The Court also held that there was no negligence on the part of the driver:
Where a level crossing is unmanned it may be right to insist that the driver of a
vehicle should stop and look both way to see if a train is approaching. But where a
level crossing is protected by a gateman and gateman opened out the gate allowing
vehicles to pass, it will be too much to expect of any reasonable and prudent driver
to stop his vehicle and look out for any approaching train. The Court held that the
accident was due to the negligence of the gateman.
Distinction between Civil and Criminal Negligence

(i) Negligence in a criminal case must be culpable and gross and not negligence
based on error of judgement. Thus, for the purpose of criminal law, a high
degree of negligence is required to be established.
(ii) Principles of the avoidance of liability, when there is contributory negligence
by the injured person, is no defence in criminal law. Where there is ample
proof that the accused had brought about the accident by his own negligence
and rashness, it matters not whether the deceased was deaf, or drunk, or, in
part contributed to his own death.
(iii) Mere carelessness is not sufficient for fixing criminal liability. Sec. 304-A,
like other sections of the Penal Code, requires a mens rea or guilty mind.
Criminal rashness or negligence requires a particular mens rea which is very
helpful in distinguishing a criminal culpable wrong from a tort.
Sec. 319: Hurt

-Whoever caused bodily pain, disease or infirmity to any person is said to cause
hurt”.
There is nothing in this section to suggest that the hurt should be caused by
direct physical contact between the accused and the victim. However, the pain must
be bodily and not mental and may be caused by any means. Dragging by hair in
aggressive manner and fisting in course of attack are not trivial acts and constitute
offence o f causing hurt. ‘Infirmity’has been defined as inability of an organ to
perform its normal function which may either be temporary or permanent. A state of
temporary impairment or hysteria or terror would constitute infirmity.
Sec. 320: Grievous Hurt

“
The following kinds o f hurt only are designated as “
grievous”
First - Emasculation.
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear.
Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing o f the powers of any member or
joint.
Sixthly - Permanent disfiguration of the head or face.
Seventhly — Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which causes the sufferer to be during
the space of twenty days in severe bodily pain, or unable to follow his
ordinary pursuits.”The mere fact that the injured remained in the hospital
for 20 days would not be enough to conclude that he was unable to
follow his ordinary pursuits during that period.
An injury may be called grievous only if it “ endangers life". A simple injury
cannot be called grievous simply because it happens to be caused on a vital part of
the body close to the carotid artery, unless the nature and dimensions o f the injury or
its effect are such that in the opinion of the doctor it actually endangers the life of
the victim. Hurt or grievous hurt to be punishable must be caused voluntarily, as
defined in Secs. 321 and 322 of 1PC.
Sec. 321: Voluntarily Causing Hurt

“Whoever does any act with the intention thereby causing hurt to any person, or with
the knowledge that he is likely thereby to cause hurt to any person, and does thereby
cause hurt to any person, is said “ voluntarily to cause hurt”.
Sec. 322: Voluntarily Causing Grievous Hurt

“Whoever voluntarily causes hurt, if the hurt which he intends to cause or know
himself to be likely to cause is grievous hurt, and if the hurt which he causes is
grievous hurt, is said “
voluntarily to cause grievous hurt.”
Explanation - A person is not said voluntarily to cause grievous hurt except when he
both causes grievous hurt and intends or knows himself to be likely to cause grievous
hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself
to be likely to cause grievous hurt o f one kind, he actually causes grievous hurt o f
another kind.
Illustration - A, intending or knowing himself to be likely permanently to disfigure
Z's face, gives Z a blow which does not permanently disfigure Z ’ s face, but which
causes Z to suffer severe bodily pain for the space o f twenty days. A has voluntarily
caused grievous hurt.
Punishment for voluntarily causing hurt or grievous hurt is provided under Sec.
323 (imprisonment up to one year, or with fine up to one thousand rupees, or with
both) and Sec. 325 (imprisonment for a term which may extend to seven years and
shall also be liable to fine) respectively.
Grievous Hurt Resulting in Death

In Government o f Bombay v Abdul Wahab (AIR 1946 Bom 38) the court observed
that the line between culpable homicide not amounting to murder and grievous hurt
is very thin. In one case the injuries must be such as are likely to cause death and in
the other they endanger life. Where death results on account o f grievous hurt and
evidence shows that the intention o f the assailants was to cause death, the case would
fall under Sec. 302 and not under Sec. 325 (Laxman v State o f Maharashtra AIR
1974 SC 1803).
Where an accused squeezed the testicles o f a victim resulting in his death
almost instantaneously and the incident took place all o f a sudden, it could not be said
that the accused had any intention casuing the death o f deceased nor could he be
attributed with knowledge that such act was likely to cause his cardiac arrest resulting
in his death. It was held that the case fell under Sec. 325, IPC (State o f Karnataka
v Shivlingaiah AIR 1988 SC 115).
In Rambaran Mahton v The State (AIR 1958 Pat 452), the deceased and the
accused were brothers. On one day, an altercation took place between two, the accused
dashed the deceased to the ground and sat upon his stomach and hit him with fists
and slaps. The deceased became senseless and eventually died. The deceased had
received some serious injuries on the head, chest and the spleen.
The High Court held: The essential ingredients o f the offence o f voluntarily
causing grievous hurt are -
(i) Grievous hurt must first be caused. If the hurt caused is simple, a person
cannot be held guilty o f voluntarily causing grievous hurt even if he intended
to caus^grievous hurt.
(ii) The offender intended, or knew himself, to be likely to cause grievous hurt.
If he intended or knew himself to be likely to cause only simple hurt, he
cannot be convicted for the offence under Sec. 325 even if the resultant hurt
was grievous.
When the act the accused did in the process o f causing hurt, is such as any
person o f ordinary intelligence knows it likely to cause grievous hurt, he may safely
be taken to have intended or contemplated grievous hurt. In the present case, there
could have been no intention on the part o f accused to cause grievous hurt. But the
way in which he assaulted his brother (who did not tried to defend himself), he should
have known that he was likely to cause grievous hurt. Three ribs and the spleen o f
the deceased was ruptured - these injuries could not have been caused unless blows
were given to the deceased with great force.
Having regard to the relationship between the parties and also the fact that this
unfortunate incident occurred on the spur o f the moment due to provocation given by
the deceased him self and also considering the fact that there was absolutely no intention
on the part o f the appellant either to kill him or to cause him such bodily injury as
was likely to cause his death. Thus, the act o f the accused amounts to grievous hurt
even though the death has resulted.
9. THEFT. EXTORTION. ROBBERY * DACOITY
Theft, Extortion, Robbery and Dacoity are the offences against property laid down in
Chapter XVII o f I.P.C.
Sec. 378: Theft

“Whoever, intending to take dishonestly any movable property out o f the possession
o f any person without that person's consent, moves that property in order to such
taking, is said to commit theft.1'
Explanation I - A thing so long as it is attached to the earth, not being movable
property, is not the subject o f theft; but it becomes capable o f being the subject o f
theft as soon as it is severed from the earth.
Explanation 3 - A person is said to cause a thing to move by removing an obstacle
which prevented it from moving or by separating it from any other thing, as well as
by actually moving it.
Explanation 4 - A person, who by any means causes an animal to move, is said to
move that animal, and to move everything which, in consequence o f the motion so
caused, is moved by that animal.
Explanation 5 - The consent mentioned in the definition may be express or implied,
and may by given either by the person in possession, or by any person having for that
purpose authority either express or implied.
Illustrations
(a) A cuts down a tree on Z's ground, with the intention o f dishonestly taking
the tree out o f Z ’
s possession without Z's consent.
(b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it.
If A's intention be dishonestly to take the dog out o f Z's possession without
Z's consent, A has committed theft.
(c) A meets a bullock carrying a box o f treasure. He drives the bullock in a
certain direction, in order that he may dishonestly take the treasure. As soon
as the bullock begins to move, A has committed theft o f the treasure.
(d) A being Z ’
s servant, and entrusted by Z with the care o f Z ’
s plate, dishonestly
runs away with the plate, without Z ’ s consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper o f 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. It could not therefore be taken out o f Z ’
s possession,
and A has not committed theft, though he may have committed criminal
breach o f trust.
(h) A sees a ring belonging to Z lying on a table in Z ’ s house. Not venturing to
misappropriate the ring immediately for fear o f search and detection, A hides
the ring in a place where it is highly improbable that it will ever be found
by Z, with the intention o f taking the ring from the hiding place and selling
it when the loss is forgotten. Here A, at the time o f first moving the ring,
commits theft.
(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop.
A, not owing to the jeweller any debt for which the jeweller might lawfully
detain the watch as a security, enters the shop openly, takes his watch by
force out o f Z ’
s hand, and carries it away. Here A, though he may have
committed criminal trespass and assault, has not committed theft, inasmuch
as what he did was not done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch
lawfully as a security for the debt, and A takes the watch out o f Z ’
s possession,
with the intention o f depriving Z o f the property as a security for his debt,
he commits theft, inasmuch as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out o f Z ’
s possession
without Z ’s consent, not having paid what he borrowed on the watch, he
commits theft, though the watch is his own property inasmuch as he takes it
dishonestly.
(l) A takes an article belonging to Z out o f Z ’
s possession, without Z ’
s consent,
with the intention o f keeping it until he obtains money from Z as a reward
for its restoration. Here A takes dishonestly; A has therefore committed
theft.
(m) A, being on friendly terms with Z, goes into Z ’ s library in Z ’s absence, and
takes away a book without Z ’ s express consent for the purpose merely o f
regarding it, and with the intention o f returning it. Here, it is probable that
A may have conceived that he has Z ’s implied consent to use Z ’
s book. If
this was A’
s impression, A has not committed theft.
(n) A asks charity from Z ’s wife. She gives A money, food and clothes, which
A knows to belong to Z, her husband. Here it is probable that A may
conceive that Z ’s wife is authorised to give away alms. If this was A’ s
impression, A has not committed theft.
(o) A is the paramour o f Z ’
s wife. She gives a valuable property, which A knows
to belong to her husband Z, and to be such property as she has not authority
n from Z to give. If A takes the property dishonestly, he commits theft.
|!
(p) A, in g o o d faith believing belonging to Z to be A’s own property, takes that

property out o f B ’ s possession. Here, as A does not take dishonestly, he docs
not commit theft.
Sec. 3 79: Punishm ent for Theft

Whoever commits theft shall be punished with imprisonment o f either description for
a term which may extend to three years, or witfi fine, or with both.
Essential Ingredients of Theft

The absence o f the person’
s consent at the time o f moving, and the presence o f
dishonest intention in so taking at the time, are the essential ingredients o f the offence
o f theft (K.N. Mehra v State o f Rajasthan AIR 1957 SC 369).
(1) Intending to take dishonestly - Dishonest intention exists when the person
so taking the property intends to cause wrongful gain (even temporary) to
him self or wrongful loss to the other; either is sufficient.
This intention is known as animus furandi (intention to steal) and without it the
offence o f theft is not complete. Thus, where a respectable person just pinches the
cycle o f another person, as his own cycle at the time was missing and brings it back,
it was held that no theft was committed by him. Taking in good faith, under a mistake,
does not amount to theft [See illustration (p)]. Where the property has been removed
in the assertion o f a bona fide claim or right it is not theft.
Theft by owner: Illustrations (j) and (k) clearly show that a person may be guilty o f
theft o f his own property.
Theft by wife: Where a wife removes the property o f her husband left in her custody
from his house with dishonest intention, she commits theft. However, a Hindu woman
does not commit theft by removing her stridhan out o f the custody o f her husband.
Theft by servant: A servant is not guilty o f theft when what he does is at his master’
s
bidding, unless he participates in his master’ s knowledge o f the dishonest nature o f
the acts.
(2) Any movable property - A boat, valuable security, a Hindu idol, stones or
sand or minerals when severed from earth is movable property. There is no
theft o f wild animals, birds, etc. at large, but there is a theft o f tamed animals.
A human body, whether living or dead, cannot be the subject o f theft.
(3) Taking out o f the possession o f another person - It does not matter for the
purposes o f theft that the person from whose possession the property is taken
is not the true owner or has an apparent and not real title to the property.
Possession and not ownership is the essential element in the offence. A theft
is a theft. Thus, where a person steals a thing from a thief he is guilty o f theft.
Removing ornaments from a dead body cannot be taking property out o f
possession o f a person and thus not a theft, but it is a criminal misappropriation, as
also in the case o f picking up a lost property. Where the owner removes a property
which has been attached by the court, he has committed a theft.
Taking out o f possession o f another person may not be permanent or with the
intention to appropriate things. In Pyare Lai v State (AIR 1963 SC 1094) held that
it would satisfy the definition o f theft if he took away any movable property out o f
possession o f another person though he intends to return it later on. However, under
the English law, the property must be taken to deprive another permanently. In the
above case, the appellant was a Superintendent in a Government office. He removed
a file to his house and made it available to an outsider who tampered with the
documents. The appellant returned the file to the office. Held, that a temporary period
o f deprivation or dispossession o f the property o f another causes loss to the other. In
K.N. Mehru v Stale o f Rajasthan (AIR 1957 SC 369), the accused took out an LAF
plane for an unauthorised flight, even temporarily, was held guilty.
(4) Taking without consent - Consent obtained by false representation which
leads to a misconception o f facts will not be a valid consent.
(5) Moving property in order to such taking - Till the property is moved, no
offence o f theft can be committed even if the alleged offender had intended
to take dishonestly the property out o f the possession o f any person without
his consent.
Aggravated Forms o f Theft

(i) Theft in any building, tent or vessel used as human dwelling or for the
custody o f property: Sec. 380.
(ii) Theft by clerk or servant o f property in possession o f his master: Sec. 381.
(iii) Theft after preparation made for causing death, or hurt or restraint or fear o f
death, etc. to any person in order to the committing o f such theft, or the
effecting o f escape afterwards or the retaining o f property taken by such
theft: Sec. 382.
Sec. 383: Extortion

Whoever, intentionally puts any person in fear o f any injury to that person, or to any
other, and thereby dishonestly induces the person so put in fear to deliver to any
person any property or valuable security, or anything signed or sealed which may be
converted into a valuable security, commits “extortion”.
Illustrations
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him
money. He thus induces Z to give him money. A has committed extortion.
(b) 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 monies
to A. Z signs and delivers the note. A has committed extortion.
(d) A, by putting Z in fear o f 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. Here, as the paper so signed may be converted into a valuable
security, A has committed extortion.
Sec. 384: Punishment for Extortion

Whoever commits extortion shall be punished with imprisonment for a term which
may extend to three years, or with fine or with both.
Essential Ingredients of Extortion

Xhe ch ief elements o f extortion (‘
Black mail’
) are the intentional putting o f a person
in fear o f injury to himself or another and dishonestly inducing the person so put in
fear to deliver to any person any property or valuable security.
(1) Puts any person in fear o f injury - The ‘
fear’must be o f such a nature and
extent as to unsettle the mind o f the person on whom it operates and takes
away from his acts that element o f free voluntary action which alone constitutes
consent.
The threats under this section had nothing to do with the truth o f the accusation.
The guilt or innocence o f the party threatened is immaterial. The word ‘injury’under
this section is not necessarily physical (it includes reputation or property). Even a
terror o f a criminal charge whether true or false amounts to a fear o f injury.
In A.R. Antulay v R.S. Nayak (AIR 1986 SC 2045), the accused was Chief
Minister at the relevant time and the Sugar Co-operatives had some o f the grievances
pending consideration before the Government. The pressure was brought about on the
Sugar Co-operatives to make the donations with a promise that their grievances shall
be considered. Held, that the ingredients o f the offence o f extortion not made out.
There was no evidence at all that the management o f the Sugar Co-operatives had
been put in any fear and the contributions had been paid in response to threats.
(2) Dishonest inducement - It is not sufficient that there should be wrongful loss
caused to an individual but the person putting that individual in fear o f injury
have the intention that wrongful loss should be caused.
(3) Delivery o f property or valuable security by the person put in fear to any
person - Where a person through fear offers no resistance to the carrying o ff
his property, but does not deliver any o f the property to those who carry it
away, the offence committed is not extortion but robbery. The offence o f
extortion is not complete until actual delivery o f property by the person put
under fear. Further, the threat may^se used by one person and the property
may be received by another person.
In Jadunandan Singh v Emperor (AIR 1941 Pat 129), the accused, along with
others, assaulted two persons and 'forcibly took their thumb impressions’on three
blank papers. The court observed that cases frequently occur which turn on the
difference between the ‘ giving’and ‘ taking’o f thumb impression. The forcible taking
o f the victim’
s thumb impression does not necessarily involve inducing the victim to
deliver papers with thumb impressions. Therefore, the offence o f extortion is not
established. It is not a case o f theft becuase papers were not taken from the victim’ s
possession. It is a case o f criminal force or assault (Sec. 325).
Sec. 385: Putting person in fear of injury in order to commit extortion

Whereas under Sec. 384, a person is punishable for "extortion”if be puts any person
in fear o f injury and thereby dishonestly induces him to deliver any property. Sec. 385
punishes the very act o f putting or the attempting to put any person in fear o f any
injury for the above purpose.
‘
Aggravated forms o f extortion’are provided under Sections 386-389. Sec. 386
- Extortion by puning a person in fear o f death or grievous hurt (Sec. 387 provides
for an attempt to do so); Sec. 388 - Extortion by threat o f accusation o f an offence

punishable with death or imprisonment for life; and, Sec. 389 - putting person in fear
o f accusation o f offence, in order to commit extortion.
Distinction between Extortion and Theft

The offence o f extortion takes a middle place between theft and robbery. Extortion
is different from theft in following respects:
(i) Extortion is committed by wrongful obtaining o f owner’
s consent. In Theft,
property’is taken without owner’
s consent.
(ii) In Extortion, both movable and immovable property may be the subject o f
an offence. Theft is limited to movable property only.
(iii) In Extortion, there is element o f force (fear o f injury). In Theft, there is no
element o f force or fear.
(iv) In Extortion, property is delivered to the offender by the victim. In Theft,
property is taken away without the owner’ s consent.
Sec. 390: Robbery

Robbery is an aggravated form o f either theft or extortion or o f both. According to
Sec. 390, ‘
theft’is ‘
robbery’if -
(i) in order to the committing o f theft, or
(ii) in committing theft, or
(iii) in carrying away, or attempting to carry away property obtained by theft, the
offender, for that end, voluntarily causes or attempts to cause to any person
death, or hurt, or wrongful restraint, or fear o f instant death, or hurt, or
wrongful restraint.
Illustration
(a) A holds Z down, and fraudulently takes Z ’ s money and jewels from Z ’ s
clothes, without Z ’
s consent. Here A has committed theft, and in order to the
committing o f that theft, has voluntarily caused wrongful restraint to Z. A
has therefore committed robbery.
The essence o f the offence o f robbery is the presence o f imminent fear or
violence. The expression “for that end”indicates that death, hurt, or wrongful restraint
is caused “in order to the committing o f theft, or in committing theft, or in carrying
away property obtained by theft”. Thus, violence may be caused either before, or
during or after committing theft but it must be caused for any o f the ends stated
above.
If force is used for any other purpose, it will not convert theft into robbery.
Thus, if a thief, being pursued by the owner, abandons the property and finding
himself still chased throws stones to avoid capture, it would be a case o f theft and
not o f robbery. Because the offender threw stones to effect his escape and not to take
away stolen property. But, where C and D were stealing mangoes from a tree, and
were surprised by B, whereupon C knocked down B, the offence o f robbery was held
to have committed.
The hurt caused by the offender must be voluntarily caused. Thus, accidental
injury will not convert theft into robbery. In a case the accused is snatching a nose
ring o f a woman wounded her in the nostril and cause her blood to flow, he was held
guilty o f robbery.
VVhen Extortion is Robbery

According to Sec. 390, ‘
extortion’is ‘
robbery’
-
(i) when a person commits extortion by putting another person in fear o f
instant death/hurt/wrongful restraint to that person or to some other
person, and
(ii) such a person by so putting another in fear, induces the latter to deliver
up the thing extorted, and
(iii) the offender, at the time o f committing the extortion, is in the presence
o f the person put in fear.
Illustrations
(b) A meets Z on the high road, shows a pistol, and demands Z ’ s purse. Z
surrenders his purse. Here A has extorted the purse from Z, by putting him
in fear o f instant hurt, and being at the time o f committing the extortion in
his presence. A has therefore committed robbery.
(d) A obtains property from Z by saying, “your child is in the hands o f my gang,
and will be put to death unless you send us Rs. 10,000”. This is extortion,
and not robbery, unless Z is put in fear o f the instant death o f his child.
For extortion to become robbery, it is necessary that the offender must be
“present before the person”(sufficiently near) put in fear o f injury, and, thus, by
reason o f his presence is capable enough to cany his threat into effect simultaneously.
Where a police officer obtains from a person 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 o f robbery.
Section 390 can be analyzed in a nutshell thus-
Robbery {Theft + violence or fear o f instant violence or Extortion
+ offender present + fear o f instant violence + immediate delivery}
Punishment for Robbery

The punishment for robbery is imprisonment for 10 years and fine. In case o f attempt
to commit robbery, it is imprisonment for 7 years and fine.
If robbery is committed on the highway between sunset and sunrise, the
punishment is imprisonment for 14 years (Sec. 392). If hurt is caused, the punishment
is imprisonment for life or 10 years and fine. Lastly, belonging to ’gang’o f persons
associated for the purpose o f habitually committing theft or robbery is punishable
with imprisonment for 7 years and fine.
Sec. 391: Dacoity

Dacoity is an aggravated form o f robbery. Sec. 391 lays down that where 5 or more
persons conjointly commit or attempt to commit a robbery, or are present and aid
such commission or attempt, everyone o f them is said to commit ‘ dacoity ’
.
___ This section is one more instance o f what is known as constructive criminality
(see under Sec. 34, IPC). The word ‘ conjointly’refers to united or concerted action
o f the persons participating in the transaction. The persons should share the common
intention o f committing robbery. In counting the number o f offenders (‘ thugs’), the
persons (abettors) present and aiding when the crime is committed are also counted.
Thus, one person may commit or attempt to commit robbery, and fou r other may be
present and aiding in its commission or attempt.
Section 396 (‘Dacoity with murder’ ) enacts that if any one o f the dacoits commits
murder in committing dacoity, every one o f them is liable for murder. In Emperor v
Ioshkar (1921) 2 Lah. 275, a gang o f five dacoits, one o f whom had a gun, raided
the house o f X. After looting, while they were running away with their booty, they
shot down one villager. It was held that the murder committed by the dacoits while
carrying away the stolen property was ‘ murder committed in the commission o f
dacoity', and every offender was therefore liable for the murder.
Further, preparation to commit dacoity (Sec. 399), belonging to a ‘ gang’o f
dacoits (Sec. 400) and assembling for the purpose o f committing dacoity (Sec. 432)
is also punishable. Thus, the four stages in dacoity are: assembling, preparation,
attempt, actual commission; each stage is punishable.
Punishment for Dacoity

The punishment for dacoity is imprisonment for life, or imprisonment for 10 years
and fine. In case o f dacoity with murder, it is death, or life-imprisonment, or
imprisonment for 10 years and fine.
If the offender uses any deadly weapon at the time o f committing robbery or dacoity
or causes or attempts to cause death or grievous hurt to any person, he shall be
punished with imprisonment for 7 years (Sec. 397). A similar punishment is provided
for where the offender attempts to commit robbery or dacoity when armed with a
deadly weapon (though did not use them) (Sec. 398).
Distinction between Theft, Extortion, Robbery and Dacoity

Theft, robbery and dacoity resemble each other in that property is taken without the
owner’ s consent. However, ‘ theft’can be committed in respect o f movable property
only, whereas ‘ extortion*, ‘
robbery’or ‘ dacoity’can be committed in respect of
immovable property also. Further, in ‘ theft’
, there is no use o f force by the thief,
whereas force may or may not be used according as ‘ robbery’or ‘ dacoity’is a form
o f theft or extortion.
It may be noted that ‘ dacoity’includes robbery and because robbery is only
aggravated form o f theft or extortion, therefore, dacoity includes theft and extortion
also. Every case o f dacoity is primarily a case o f robbery but vice versa is not correct.
‘Theft’ ,‘robbery’, and ‘
extortion’can be committed by one person, whereas in
‘
dacoity’, the least number must be five.
‘
Extortion’is committed by the wrongful obtaining o f consent. In ‘robbery’, the
offender takes without consent or by the wrongful obtaining o f consent. In ‘
dacoity’,
there is either no consent or consent is obtained wrongfully. The element o f fear is
clearly present in ‘
extortion’and ‘
dacoity’ , but may or may not be present in ‘
robbery’
.
10. CRIMINAL MISAPPROPRIATION

AND BREACH OF TRUST
Sec. 403: Dishonest Misappropriation of Property

“Whoever, dishonestly misappropriates or converts to his own use any movable
property, shall be punished with imprisonment o f either description for a term which
may extend to two years, or with fine, or with both.”
Illustrations
(a) A takes property belonging to Z out o f Z ’
s possession, in good faith believing,
at the time when he takes it, that the property belongs to himself. A is not
guilty o f theft; but if A, after discovering his mistake, dishonestly appropriates
the property to his own use, he is guilty o f an offence under this section.
(b) A, being on friendly terms with Z, goes into Z ’
s library, in Z's absence, and
takes away a book without Z ’ s implied consent to take the book for the
purpose o f reading it, A has not committed theft But, if A afterwards sells
the book for his own benefit, he is guilty o f an offence under this section.
(c) A and B, being joint owners o f a horse, A takes the horse out o f B's
possession, intending to use it. Here, as 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 o f an offence
under this section.
Explanation 1- A dishonest misappropriation for a time only is a misappropriation
within the meaning o f this section.
Illustration
A finds a Government promissory note belonging to Z, bearing a blank
endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a
security for a loan, intending at a future time to restore it to Z. A has committed an
offence under this section.
Explanation 2 - A person who finds property not in the possession o f any other
person, and takes such property for the purpose o f protecting it for, or o f restoring
it to, the owner, does not take or misappropriate it dishonestly, and is not guilty o f
an offence; but he is guilty o f the offence above defined, if he appropriates it to his
own use, when he knows or has the means o f discovering the owner, or before he has
used reasonable means to discover and give notice to the owner and has kept the
property a reasonable time to enable the owner to claim it.
It is not necessary that the finder should know who is the owner o f the property,,
or that any particular person is the owner o f it: it is sufficient if, at the time o f
appropriating it, he does not believe it to be his own property, or in good faith
believes that the real owner cannot be found.
Illustrations
(a) A finds a rupee on the high-road, not knowing to whom the rupee belongs.
A picks up the rupee. Here A has not committed the offence defined in this
section.
(b) A finds a letter on the road, containing a bank note. From the direction and
contents o f the letter he learns to whom the note belongs. He appropriates
the note. He is guilty o f an offence under this section.
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person
who has lost the cheque. But the name o f the person, who has drawn the
cheque, appears. A knows that this person can direct him to the person in
whose favour the cheque was drawn. A appropriates the cheque without
attempting to discover the owner. He is guilty o f an offence under this section.
(d) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately
without attempting to discover the owner. A is guilty o f an offence under this
section.
Essential Ingredients of Criminal Misappropriation

The offence o f criminal misappropriation consists in dishonest misappropriation or
conversion to his own use any movable property. It takes place when the possession
has been innocently come by, but where, a subsequent change o f intention, or from
the knowledge o f some new fact with which the party was not previously acquainted,
the retaining becomes wrongful and fraudulent. It is the mental act o f fraudulent
misappropriation (dishonest intention) that demarcates an act o f embezzlement (e.g.
suits by beneficiaries against trustees for default o f the trustees) which is a civil
wrong from the offence o f criminal breach o f trust.
To ‘ misappropriate' means ‘ improperly setting apart for one’s use to the
exclusion o f the owner’.‘Converts’means appropriation and dealing with property o f
another without right as if it is his own property. The accused is not guilty when he
merely retains or possesses such property. He is guilty only when he appropriates or
converts to his own use such property. Further, the property must be a movable
property. Thus, a house cannot be misappropriated. Misappropriation or conversion
need not be permanently, it may even be for a time (See Explanation 1).
A mere misappropriation or conversion to one’ s use is not sufficient for the
completion o f an offence, but that the element o f dishonesty is essential. Where a
person found a purse and put it in his pocket, but was immediately after arrested, he
was not guilty o f missappropriation for it could not be assumed that by the mere act
o f picking up the purse or putting it in his pocket he intended to appropriate its
contents to his own use.
The accused would not be guilty o f the offence, where there was no information
as to the circumstances under which the things were lost and the probability was that
property was abandoned by the original owner. Explanation 2 makes it clear that the
property must be owned by somebody. The finder must wait upon a reasonable time
to allow the owner to claim the property, before he appropriates it. If the owner is not
discovered, then, tinder certain circumstances, the finder may retain the property, but
if he acts with reference to the article found in such a way that the true owner may
al
never discover that it had been picked up by him, then he would be guilty (Ram
Bharosey v State AIR 1952 All. 481).
joint!Partnership property - One joint owner o f property is not guilty if he takes it
out o f the possession o f another [See illustration (c)j. A manager o f a joint Hindu
family may be liable to a charge o f misappropriation if. after a division o f property
has taken place and shares o f each co-parcener ascertained, it is found that the
manager has wrongfully applied to his own use the share that belongs to other
coparceners. A partner has undefined ownership along with the other partners over all
the assets o f the partnership. If he chooses to use any o f them for his own purposes,
he may be accountable civilly to the other partners, but he does not thereby commit
any misappropriation.
Sec. 404: Dishonest misappropriation of property possessed by deceased

person at the time of his death
This section deals with an aggravated form o f offence o f criminal misappropriation
committed in respect o f property after its owner is dead and before it is taken possession
o f by his legal representative.
Illustration - Z dies in possession o f furniture and money. His servant A, before the
money com es into possession o f any person entitled to such possession, dishonestly
misappropriates it. A has committed the offence defined in this section.
Distinction between Theft and Criminal Misappropriation

The property in respect o f which the offence is committed is movable in both theft
and criminal misappropriation. However, in theft, the object o f the offender is to take
property from another’ s possession, while in misappropriation, the offender is already
in the possession o f property. Further, dishonest intention precedes the act in theft,
while in misappropriation it is the subsequent (dishonest) intention to misappropriate.
Sec. 405: Criminal Breach of Trust

Whoever, being in any manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or converts to his own use that property, or
dishonestly uses or disposes o f that property in violation o f any direction o f law
prescribing the mode in which such trust is to be discharged, or o f any legal contract,
express or implied, which he has made touching the discharge o f such trust, or
wilfully suffers any other person so to do, commits "criminal breach o f trust.”
Explanation I - A person, being an employer, who deducts the employee's contribution
from the wages payable to the employee for credit to a Provident Fund or Family
Pension Fund established by any law for the time being in force, shall be deemed to
have been entrusted with the amount for the contribution so deducted by him and if
he makes default in the payment o f such contribution to the said Fund in violation o f
the said law, shall be deemed to have dishonestly used the amount o f the said
contribution in violation o f a direction o f law as aforesaid.
Illustrations
(a) A, being executor to the will o f a deceased person, dishonestly disobeys the
law which directs him to divide the effects according to the will and
appropriates them to his own use. A has committed criminal breach o f trust.
(b) A is a warehouse-keeper. Z, going on a journey, entrusts his furniture to A,
under a contract that it shall be returned on payment o f a stipulated sum for
warehouse-room. A dishonestly sells the goods. A has committed criminal
breach o f trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express
or implied contract between A and Z, that all sums remitted by Z to A shall
be invested by A, according to Z ’ s direction. Z remits a lakh o f rupees to A,
with directions to A to invest the same in Company’ s paper. A dishonestly
disobeys the directions and employs the money in his own business. A has
committed breach o f trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing
that it will be more for Z ’ s advantage to hold shares in the Bank o f Bengal,
disobeys Z ’ s directions, A, not having acted dishonestly, has not committed
breach o f trust.
(e) A, a revenue-officer, is entrusted with public money and is either directed by
law, or bound by a contract, express or implied, with the Government, to pay
into a certain treasury all the public money which he holds. A dishonestly
appropriates the money. A has committed criminal breach o f trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water.
A dishonestly misappropriates the property. A has committed criminal breach
o f trust.
Sec. 406: Punishment for Criminal Breach o f Trust

Whoever commits criminal breach o f trust shall be punished with imprisonment o f
either description for a term which may extend to three years, or with fine, or with both.
Essential Ingredients of Criminal Breach of Trust

(i) There should be an entrustment by one person to another o f the property, or
with any dominion over property;
(ii) such entrustment must be in the trust;
(iii) there must have been a misappropriation or conversion to his own use by the
person who received the property in trust;
(iv) such conversion or retention o f the property must be against or in violation o f
any direction, or law prescribing the mode in which such trust is to be discharged,
or o f any legal contract made touching the discharge o f such trust.
This offence consists o f any o f the four positive acts - misappropriation, conversion,
user, or, disposal o f property. Negligence is not dishonest intention. If a person
commits a criminal breach o f trust, the refund o f amount misappropriated, when the
act o f defalcation is discovered, does not absolve him o f the offence.
Entrusted with property, or dominion over property - The expression ‘ entrustment’
includes all cases in which property is voluntarily handed over for a specific purpose
and is dishonestly disposed o f contrary to the terms on which possession has been
handed over. The expression ‘ entrustment’contemplates the creation o f a relationship
whereby the owner o f property makes it over to another person to be retained by him
until a certain contigency arises. Sec. 405 does not contemplate the creation o f a trust
with all the technicalities o f the law o f trust (J.M. Akhaney v State o f Bombay AIR 1956
SC 575). The expression ‘ entrustment’carried with it the implication that the person
handing over any property or on whose behalf the property is handed over to another,
continues to be its owner (State o f Gujarat v Jaswantlal Nathalal, AIR 1968 SC 700).
A person is said to be having a ‘ dominion’over property when he supervise or
exercise control over the property or is in charge o f that property. In order to establish
‘entrustment o f dominion’over property to an accused person the mere existence o f
that person’s dominion on property is not enough. It must be further shown that his
dominion was the result o f the entrustment.
In Somnath v State (AIR 1972 SC 1490), the accused, a Traffic Assistant in the
office o f Indian Airlines Corporation, demanded on behalf o f the Corporation certain
excess amounts for trunk charges from the passengers for reservation o f seats. After
the amounts were received, he passed receipts on behalf o f the Corporation. He,
however, subsequently falsified the counter-foil receipts, fraudulently misappropriated
the excess amounts. Held that the accused was guilty o f breach o f trust.
It may be noted that if money was paid to accused as an extra price for the
goods and he received it on behalf o f or as agent o f the mills, the accused would be
guilty o f breach o f trust. But if he receives the money as his own personal profit it
will be a case o f illegal gratification (C.M. Narayan Ittiravi v State o f Travancore
AIR 1953 SC 478).
Examples o f N o Criminal Breach o f Trust

(a) In the case o f hire-purchase contract, mere failure to pay instalments o f hire
will not amount to criminal breach o f trust.
(b) Deposit o f money to be paid back with interest is merely a loan transaction
and in such a case refusal to pay it back does not amount to breach o f trust
(unless the amount is contracted to be used in a specific sense). The amount
deposited is not a trust with the bank; money paid to the bank ceases to be
the money o f the depositor: it becomes the money o f the bank with the only
stipulation that the sum equal to the sum deposited with the bank is to be
paid by them when asked for
(c) A mere transaction o f sale cannot amount to an entrustment. In State o f
Gujarat v Jaswantlal, the Government sold 100 bags o f cement solely for
the construction work in question. The accused after taking delivery o f those
bags delivered at the work site 60 bags and the remaining 40 bags he delivered
to one T. Holding that there was no breach o f trust, the court observed that
after delivery o f the cement, the government had neither any right nor
dominion over it.
Similarly, in trade transactions, the property in goods passes to the buyer and the
mere fact that he fails to pay the price promised to be paid (e.g. by way o f dishonour
o f cheque), cannot attach any criminality to the buyer. However, where a printer uses
certain blocks, entrusted to him to print the complainant's catalogue, for the purpose o f
printing a rival firm ’s catalogue, he would be guilty o f criminal breach o f trust
(d) Violation o f condition does not amount to breach o f trust - Where an accused
holding a fair price shop was supplied by the State Government with certain
quantity o f wheat on payment o f its price on condition that it was to be sold
to residents o f particular villages and the accused sold the wheat to
whomsoever he liked, he cannot be convicted o f the offence o f criminal
breach o f trust as there was no question o f entrustment, the property in wheat
having passed to the accused on payment o f price.
(e) In V Raghavji v State o f Maharashtra (AIR 1965 SC 1433), held that in
the case o f a partnership, every partner has dominion over the partnership
property by reason o f his being the partner. But it is not dominion o f this
kind which satisfies the requirements o f Sec. 405. In the absence o f a special
agreement, if a partner receives money belonging to the partnership he cannot
be said to have been “ entrusted”with dominion over partnership properties.
Distinction between Theft and Criminal Breach o f Trust

(1) In theft, there is a wrongful taking o f a movable property without the consent
o f the owner. In criminal breach o f trust, the property is lawfully acquired
with the consent o f the owner, but dishonestly misappropriated by the person
to whom it is entrusted.
(2) In theft, the property involved is movable property, but in breach o f trust
it may be any property.
(3) In theft, the offence is completed as soon as the property is dishonestly taken
away. In breach o f trust, the offence is com pleted when the offender
dishonestly converts the property to his own use.
Distinction betw een Criminal M isappropriation and Crim inal

Breach of Trust
(1) In misappropriation, the property com es into the possession o f the offender
by some casualty or otherwise, and he afterwards misappropriates it. In
breach o f trust, the offender is lawfully entrusted with the property and he
dishonestly misappropriates the same.
(2) In misappropriation, there is no contractual or fiduciary relationship, but in
breach o f trust, there is a contractual relationship o f the offender with regard
to the property.
(3) A breach o f trust includes criminal misappropriation, but the converse is not
always true.
Secs. 407-409: Sec. 407 is applicable to criminal breach o f trust by a carrier, wharfinger
or warehouse-keeper and provides punishment o f imprisonment up to 7 years. Sec.
408 is applicable to criminal breach o f trust by clerk or servant and provides upto 7
years’imprisonment.
Sec. 409 reads : Whoever, being in any manner entrusted with property or with
any dominion over property in his capacity o f a public servant or in the way o f his
business as a banker, merchant, factor, broker, attorney or agent, commits criminal
breach o f trust in respect o f that property, shall be punished with imprisonment for
a term which may extend to ten years and shall also be liable to fine.
r
Indian Penal
Code
ObJfCTIVf QilESTIOnS
{The “Marked Questions are from the Civil Services (Prel.) Exam s 1990-2001.}
{The §Marked Questions are from the States’C ivil Services/
Judicial Services Exams.}

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i

1. General Principles of Criminal Liability:

3- General Exceptions 294

4- Joint and Constructive Liability 305

8. Culpable Homicide and Murder 318

9- Theft, Extortion, Robbery & Dacoity 331

Actus reus and Mens rea

^xfKeius non facit reum, nisi mens sit rea

Mens rea (Guilty mind) and Motive (‘

Mens rea when Not Essential: Strict Liability

2. PREPARATION AND CRIMINAL ATTEMPT

Sec. 511: Attempt

£ fx e s Amounting to Mere Preparation

in his possession and was convicted o f ‘

Sec/lff^TAttem pt to Commit Murder

( 2) Judicial acts (Secs. 77-78). 3 . a.

'vfl] Secs. 76 and 79; Mistake of Fact

court has jurisdiction) is no offence. If it were to be an offence the hangman who

[Ill] Sec. 80: A ccident

[IV] Secs. 81-86 and 92-94: A bsence o f Criminal Intent l y V

(vi) Comm unication made in go od faith (Sec. 93). ^ ^

(i) S e c . 8Jy Act Done to Avoid Other Harm .

(ii) Secs. 82=83: Act o f Child 'JL~t 'l*A ~r ^ ^ CO !

(iii) Sec. 84: Act of an Insane Person o chuo T>

r e mand by someone in paradise, given to him in his dream. He was held to be

^Xv^TSec. 92: Bona fide Act for Another's Benefit

(vi} Sec. 93: Communication made in Good Faith

(vii) Sec. 94: Act Done under Compulsion or Threat

[V] Secs. 87-91: Act Done by Consent

[VI] Sec. 95: Trifling Acts/Acts Causing Slight Harm

[VII] Secs. 96-106: Right of Private Defence

Private Defence of Body

Private Defence o f Property

4. JOINT AND CONSTRUCTIVE LIABILITY

S ection 34: C o m m o n Intention

Secs. 141-149: Unlawful Assembly and Common Object

might not happen; it imports a high degree o f probability. It indicates a state

Distinction between Sec. 34 and Sec. 149

Sec. 107: Abetment of a Thing

(i) Abetment by Instigation

(ii) Abetment by Conspiracy

(iii) Abetment by Aid

Sec. 108 and General Provisions regarding Abetment

Conspiracy is generally a “matter o f inference deduced from certain criminal acts o f

(i) Sec. 120-A.

Sec. 120-A: Definition

Distinction between Conspiracy and Abetment by Conspiracy

Distinction between Conspiracy and Joint Liability

Distinction between Conspiracy and Attempt

Sec. 120-B: Punishment for Conspiracy

Sec. 124-A: Sedition

Both successful and unsuccessful attempts to excite disaffection were placed on

Bona fide Criticism of Government Permissible

Punishment for Sedition

8. CULPABLE HOMICIDE AND MURDER

Sec. 299: Culpable Homicide

Essential Ingredients of Sec. 299

Explanations to Sec. 299

Sec. 300: Murder