Unit I

Chapter I Introduction
What is Crime ? Explain the difference between Crime and Tort?
Introduction: The criminal law consists of rules for regulating human conduct
promulgated by State and are uniformly applicable to all persons and is
enforced by punishment.
The Concept of Crime:
Perception of crime has undergone a radical change over the years, Generally
speaking, crime is a human conduct which the society generally abhors or
disapproves. But in the modern sense of the term, whatever is prohibited by the
penal law in force is deemed as a crime, the consequence which is punishment.
IPC is a comprehensive code intended to cover substantive aspects of Criminal
law. It is not procedural law like Cr.P.C. This code was drafted in 1860 on the
recommendations of first law commission of India established in 1834, under the
Charter Act of 1833 under the Chairmanship of Lord Babington Macualay.
Commenced in January 1862.
The IPC of 1860 , is sub divided into 23 Chapters and 511 Sections.
Definitions of crime:
The word ‘Crime is derived from Greek expression ‘Krimos’ which means social
order and it is applied ‘to those acts that go against social order and are
worthy of serious condemnation.’
Crime has been defined by various writers, but no definition tells us everything
about a crime. In fact, the very definition of crime depends on the values of a
given society. The Code itself does not define crime .
Salmond, defines crime as: “a crime is an act deemed by law to be harmful to
Society in general, even though its immediate victim is an individual”.
According to Bentham, offences are whatever the legislature has prohibited
for good or for bad reasons. If the question relates to a theoretical research
for the discovery of the best possible laws according to the principles of utility,
we give the name of offence to every act which we think ought to be
prohibited by reasons of some evil which it produces or tends to produce.
Sir William Blackstone in his “Commentaries on the Laws of England” has
defined crime in two ways: as (i) “an act committed or omitted in violation of a
Public law either forbidding or commanding it.” (ii) “A crime is a violation of the
public rights and duties due to the whole community, considered, as a
community in its social aggregate capacity”.
Sir James Stephen, while modifying the Blackstone’s definition, states, “A crime is
a violation of a right, considered in reference to the evil tendency of such
violation as regards the community at large”.
In T. K . Gopal v. State of Karnataka, SCC, 2000, the Supreme Court attempted a
definition for crime Thus; “an act that subjects the doer to legal punishment”. It
may also be defined as commission of an act as specifically forbidden by law; it
may be an offence against morality or social order.
In Indradeo mahto v. State of W.B1973, SCC, the Supreme Court has said that
the real test to differentiate crime from civil wrong is the degree and extent of
the disturbance an act causes to the normal balanced peaceful tempo of civil Life
of a community.
In Harpreet Kaurv. State of Maharashtra, SC 1972, the SC opined that, Crime is a
revolt against the whole society and an attack on the civilization of the day.
Order, is the basis need of any organized civilized society and any attempt to
disturb that order affects the society and the community.
We find that it is very difficult to get a definition of crime suitable to all countries
for all the time. The following are, according to Jerome Hall, interrelated and
overlapping differential of crime.
1. There must be some external consequences or ‘harm’ to social interests.
2. The harm must be ‘prohibited’ by penal laws.
3. There must be ‘conduct’ that is intentional or reckless action o inaction that
brings prohibited harm.
4. There must be ‘mens rea’ or’ criminal intent’.
5. There must be concurrence of ‘,mens rea’ and conduct.
6. There must be a ‘casual relation between the legally prohibited harm and the
voluntary misconduct.
7. There must be legally prescribed ‘punishment’ or threat of punishment.
Nature of Crime:
Law prescribes certain standards of conduct to be observed by people in
society . These standards have the approval of the society in general. Any
deviation from the standards of behavior fixed by the society is punished.
Therefore, such conduct which does not accord with the prescribed standard is
loosely known as crime.
A crime contains two elements, they are:
(i) mala-in-se, and
(ii) ‘mala prohibita’
Some of the traditional crimes like murder, theft and rape etc., are known as
‘mala-in se’, while various other crimes, in which there is no element of
immorality in the traditional sense are known as ‘mala-prohibita’ for example
traffic violations and fines.
Crimes are not static, they are relative. Crimes differ from country to country
and time to time. For example adultery was mala-prohibita in India all these
years but now it is decriminalized. Whereas in England it is not prohibited at all.
Polygamy is prohibited among Hindus by the Hindu marriage Act, 1955, but there
is no such law of Mohammedans. They can marry 4 women at a time.
there is vast difference between crime , sin, social wrongs and moral wrongs.
The reason is that a crime is forbidden by law. There is also a prescribed
procedure and machinery to punish the persons who commit crime, whereas
there is no mechanism to punish anyone in the case of the sin, social or moral
wrongs.
Sin is concerned with religion. Therefore if any person commits a sin, it is aid
that he will be punished by God himself. What is ‘sin’ is dictated by the particular
religion to which he belongs. Likewise, social and moral wrongs are wrongs only
in the eyes of moral codes, or in social rules, but they are not recognized wrongs
in the eyes of law.
 Distinction between Crime and Torts (Civil wrongs)
There are certain acts which are not approved by most of the people in a
civilized society, because they have a tendency to reduce the sum total of
human happiness to conserve which is the ultimate aim of all laws. Such acts
are known as wrongs for example forgery, cheating , stealing and homicide etc.
The evil tendencies of these acts differ in degree. Some of them are
considered serious enough so as to attract the notice of the laws, others are
only disapproved by the society. The latter are known as moral wrongs and are
created by the laws of the community or the laws of religion. The reaction of
thein former is grave enough and is expressed either by asking the wrong-doer
to pay damages to the person injured or awards punishment. Cases, where the
wrong-doer is ordered to indemnify the person injured are known as civil
wrongs and where he awarded punishment are known as Crimes.
Both crimes and Torts directly affect the community. They overlap each other
and many crimes include tort within them.
Tort is a civil wrong which is a breach of some duty between citizens
defined by the general law, which creates a civil cause of action.
Every tortious act does not amount to a crime, nor does every crime include a
tort. Thus, mistaken or innocent trespass to one’s land or private nuisance is
a tortious act, but is not a crime as there is no element of danger to the
public interest.
Both Crime and tort resemble each other in two respects, namely
(i) Tort and crime are violation of right in rem;
(ii) They are fixed by law irrespective of the consent of the parties, unlike
contract.
Some of them are only torts and not crimes, for example: Conversion, nervous
shock, private nuisance, malicious prosecution, tortious conspiracy, slander of
goods etc.
Few examples of crimes which are not treated as torts: they are forgery,
perjury, culpable homicide, rape, etc.
Some examples for both crimes and torts: Assault, battery(criminal force),
deceit, defamation, negligence, false imprisonment, trespass etc.

Difference between Crime and Tort are:

 Crimes Torts
1. A crime is a pubic wrong which A tort is a civil wrong. It gives rise to
results in punishment. civil proceedings.
2. A crime is a breach of the public A tort is a violation of the private
rights and duties which affect the rights of an individual. It causes injury
whole community. or damage to an individual or group of
individuals.
3. A crime is tried in Criminal Court. A tort is tried in Civil Court.
4. In a crime, the victim is an individual.
The Criminal proceedings against the
wrong does are instituted by the In a the plaintiff is the injured party
state.
5. The object of the Criminal law is to The purpose is awarding
protect the community or society by compensation to the injured party. In
preventing and deterring the
offenders from further offences. a tortious wrong is to make good the
loss suffered by him.
 Crimes Torts
6. Crimes arises on account of Statutory No legislation for it, based on only a
enactments. It has an Act called Indian common law or Judge made law. or Case
Penal Code and other criminal legislations. law governess the determination of
compensation. They are not codified.
7. All the Crimes are defined and While dealing with civil wrongs natural
punishments are prescribed and criminal principles of justice, good conscience,
law is codified. Strict rules of procedure equity etc., are followed in fixing the
and principles are followed n fixing the wrong-doer’s liability.
liability of the criminal.
8. Generally an act shall not be punished as Mens rea and intention has no place in
a crime, unless there is intention and tort.
mens rea. Burden of Proof lies on the injured
9. In Criminal cases, burden of proof lies on complainant.
the State. The injured becomes a witness In case of death of a tort feasor, his legal
only.
representatives can be sued , except in
10. Death of an offender puts an end to cases of defamation assault, etc.
prosecution.
 Crimes Torts
11. There is no bar of limitation to a
prosecution for a crime, except in Limitation is a bar to an action in tort.
certain cases as per Section 468, Cr.p.c.
12. The person who commits crime is called The person who commits tort is called ‘the
accused , before guilt is proved and tort feasor’ or ‘wrong doer’.
convict or criminal after guilt is proved.
13. Criminal law, generally, does not permit
Law permits the parties to settle the
settlement of a case by compromise
dispute. In other words, the plaintiff can
between parties. However section 320
withdraw the suit filed by him.
of the IPC provides for an exception to
this rule.
14. The offender is punished by the State, The wrong-doer has to compensate the
such punishment may be fine or aggrieved party, such compensation may
imprisonment. The nature of be nominal, ordinary or exemplary
punishment is heavy. according to the magnitude of the tort.
The nature of punishment is generally
Crimes Torts
15. The amount collected by way The payment made by the wrong
of penalty and fine is not paid doer as compensation goes to
to the victim, but the amount is injured party.
credited into State account.

16. Criminal law is the oldest law. Civil law is the latest subject.
Distinction between Crime and Breach of Contract
Crime Breach of Contract
1. The injured party cannot sue for But, in case of breach of contract,
damages. The injury to the victim the injured party has right only for
is deemed as an injury to the liquidated damages. That is, pre-
society. It is the violation of settled or actual damages.
public right. Hence the State
prosecutes the accused. The
burden of proof lies upon the
State. If the wrongful act is
proved, the accused is put in
imprisonment or imposed fine or
both . It is credited into the state’s
account. While, the object of law on the
2. The object of the criminal law is to breach of contract is to protect the
protect the peace of the society. rights of the parties in a contract.
Crime Breach of Contract
3. Mens rea , is an important factor Where-as, in breach of contract , the
in imposing Criminal liability upon motive is not an essential factor. The
the wrong-doer. defaulting party has to pay the pre-
settled and actual damages.
4. A wrongful act is an infringement But, in a breach of contract is an
of ‘right in rem’. The wrong doer infringement of a ’right in personam’,
has a ‘duty in rem’, that is he that is a right available only against
should not do harm or injury to some determinate person or body
any person. It is a statutory duty. and for which the community at
large has no concern.

5. The criminal law which deals with

crimes and offences is a separate Whereas breach of contract is a
branch . species of law of contract, which
belongs to civil law.
Crime Breach of Contract
6. The Criminal law is completely While the law relating to contracts
codified . considers certain trade customs,
though is a species of law of
contact, which belongs to civil law.

7. In Crime, the victims is not paid

damages. The accused is sent to In breach of contract, the party is
jail or imposed fine or both. The entitled only for actual damages.
fine goes to the State.
Question: Explain the different stages of Crime?
A crime is an act committed or omitted in violation of public law forbidding or
commanding it . Commission of a crime involves four stages, namely;
1. Intention
2. Preparation
3. Attempt and
4. Accomplishment.
1.Intention or contemplation: Intention is the first stage in the commission of an
offence. Without intention, there is n commission of an offence. Intention is a term
which is very difficult to define. It can be variously said to mean the object, purpose,
the ultimate aim or design behind doing an act. Intention has been defined as the
fixed direction of the mind or a particular object, or determination to act in a particular
manner and is distinguishable from motive that which incites or stimulates action.
1. Every sane person of the age of discretion is presumed to intend the natural
and probable consequences of his own acts. Every actual consequence is a natural
And probable consequences , unless and until the contrary is affirmatively shown.
Intention is the result of working of the brain. To form intention, he should
conceive the idea of performing legally harm. It is immaterial whether the person
conceiving such an idea knows that it is illegal to perform it. At this stage there is
no action taken to harm anybody.
‘Criminal intention’ means the purpose or design of doing an act forbidden by the
criminal law without just cause or excuse. The Court must have proof of facts
sufficient to justify it in coming to the conclusion that the intention existed .
Intention to commit the crime is not punishable in India. , unless it is made
known to the other either by words or conduct. However law takes notice of such
intention in certain offences, even without letting it to be known to others. For
example,
1. In waging war against the Government(section 121 to 123 od IPC.
2. Sedition(Section 124A of IPC).
3. Further, mere assembly of persons for committing the dacoity without any
2. Preparation : the second stage in commission of a crime is ‘preparation
Preparation means ‘to arrange the means or measures necessary for
commission of the intended criminal act.
At the stage of preparation, the intention to cause harm starts manifesting
itself in the form of physical actions. Preparation consists of arranging or building
things that are needed to commit the crime. For example purchasing knife.
Preparation is driven by motive. Motive is an inducement or that which leads or
tempts the mind to indulge in a criminal act. It sometimes becomes vey difficult
for the prosecution to prove that necessary preparation as been made for the
commission of the offence. For example, purchasing knife with the intention to
kill someone is not a crime, because it cannot be determined whether the knife
was bought to kill someone or to cut vegetables.
Preparation itself constitutes the actus reus. Mere preparation is punishable
under the Indian Penal Code in respect of the following offences:
(i) Waging War (Section 22)
(ii) Preparation to commit dacoity (Section 399)
(iii) Preparation for counterfeiting coins and Government stamps (Sections 233 to 235,
255 and 257
(iv) Possessing counterfeit coins, false coins, false weights or measurement and forged
documents.(Section , 242, 243, 259, 266 and 474).
3. Attempt: the third stage in commission of a crime is ‘attempt’. It is also known as
‘Preliminary Crime’. An attempt to commit a crime is an act done with intent to
commit that crime, and forming part of a series of acts which would constitute the
actual commission, if it were not interrupted or failed. This stage of attempt is
attained by performing physical action that, if left unstopped, cause or are bound to
cause injury to someone. If the person is left unrestricted, the person has absolutely
no intention to abandon his plan. An attempt to commit a crime is considered a
crime because if left unpunished, crime is bound to happen and prevention of crime
is equally important for a healthy society.
Both preparation and attempt are physical manifestations of the criminal intention.
But attempt goes a lot further than preparation towards the actual
happening of crime. While in preparation, there is a possibility that the person
may abandon his plan, but attempt leaves no room for that. For example keeping a
pistol in pocket and looking for the enemy to kill is a preparation because one can
abandon the plan any time, but taking out the pistol and pulling the trigger is
attempt to commit leaving no room for turning back. The following are the
essentials of attempt:
(i) Guilty intention to commit an offence;
(ii) Some act done towards the commitment of the crime; and
(iii) The act must fall short of the completed offence.
4. Commission of crime or Accomplishment: actual commission of the offence is
the final stage where the crime is actually done. If the accused succeeds in his
attempt, he is guilty of the offence. For example, ‘A’ fires at ‘B’ with an
intention to kill him. If ‘B’ dies, ‘A’ is guilty of murder. If ‘B’ is injured , ‘A’ is
guilty of attempt to murder. there is one more state added to the Crime. It is:
 Chapter 2 Elements of Crime
Questions:
1. Explain the elements of crime.
2. Explain recognition of mental element in criminal liability.
3. “The intent and the act must both concur to constitute crime”. Explain it the statement with reference to
Khandu’s case.
4. What is mens rea ? State it significance in statutory offences
5. Discuss the role of ‘mens rea in the context of Indian Penal Code.
6. Write short notes on (1) “Mens Rea”(2) Actus reus
Introduction:
Questions 1. Explain the element
2. explain the principles of Criminal liability
3. Write short notes on (1) “Mens Rea”(2) Actus reus
The main elements or principles necessary to constitute a crime are:
i. A human being under a legal obligation to act in a particular way and a fit
subject for the infliction of appropriate punishment.
iii. An act committed or omitted in furtherance of such an intent.
iv. An injury to another human being or to society at large by such act.
1. Human being: the act must have been done by a human being before it can
constitute a crime punishable a t law. It is interesting , to observe that there
are enough examples in ancient legal institutions of punishment being inflicted
on animals or inanimate objects for injury caused by them.
During this period the trial and punishment of animals was a remarkable
feature of the administration of criminal justice. Baring Gould’s “Curiosities of
Olden Time’ clearly bear out these facts. For example :
“The first time an ass if found in a cultivated field not belonging to its master, one
of its ear is chopped off. If it commits the same offence again it loses the second
ear”. We also find traces of the owner of the animal being punished for the
wrongful acts of his animal. “if an ox gored a man resulting in his death, the ox
was stoned and the owner was put to death. In order to extract confession, the
animal was tortured and the cries of pain from the tortured animal were taken
were taken to be confession of guilt.
 It is a matter of pride that the ancient Hindu Criminal jurisprudence did not
provide for the trail and punishment of animal and inanimate objects. Hindu
jurists seem to be fully aware of the requirement of an evil intent as a
constituent of crime, which is a modern development of western criminal
jurisprudence.
With the development of the notion of mens rea as an essential element of
crime, the trial and punishment of animals and inanimate objects had to be
given up, but even today we hold the owner of the animal liable in some cases
for any damage has done but for the omission on the part of the owner to
proper care of his animals and thereby to prevent any mischief to others.
Therefore, only a human being under a legal obligation and capable of being
punished and can be the proper subject of criminal law. It means a human
being must have a body . Corporation and other artificial persons known to
modern jurisprudence are not capable of being punished.
2. Mens rea: ‘Actus non facit reum nisi mens sit rea’ is a well-know maxim of
criminal law. It means that act itself does not make a man guilty unless his
intentions were so ‘. From this maxim follows another proposition, that is
‘actus me invito factus non est mens actus’. Which means an act done by me
Against my will is not my act at all’. This means an act in order to be punishable
at law must be a willed act or a voluntary act and at the same time must have
been done with a criminal intent. The intent and the act both must concur to
constitute the crime. In olden days the mental attitude of the wrong-doer was
almost an irrelevant consideration’ but later on the substitution of bodily
punishment in suitable cases gave rise to the recognition of the notation of
criminal intent behind the act. Hence the requirement of mens rea as a
necessary element of a crime is fully established . ( please add the points under
to heading The ‘Mens rea’ to this material).
3. Actus reus: A human being and an evil intent are not enough to constitute a
crime. The thoughts of a man is not triable. The criminal intent in order to be
punishable must become manifest in some voluntary act or omission.
Accroding to Kenny, ‘ actus reus’ is such result of human conduct as the law
seeks to prevent. The act done or omitted must be an act forbidden or
commanded by some law. Russel calls actus reaus as the ‘physical result of
human conduct’ .
It is made of three constituent parts;
1. Human action which is usually termed as ‘conduct’ .
2. The result of such act in the specific circumstances, which is designated as
‘Injury’; and
3. Such act is ‘prohibited by law’.
4. Causation ( for Short Notes): A man is said to have caused, the actus reus of
killing a person, if death would not have occurred without the participation of the
accused. Causation is the "causal relationship between the defendant's conduct
and end result". ... In criminal law, it is defined as the actus reus (an action) from
which the specific injury or other effect arose and is combined with mens rea (a
state of mind) to comprise the elements of guilt. It provides a means of connecting
the conduct with the actus reas or the act
A harm which has been suffered in an event, and is difficult to imagine any event
which is not the product of a plurality of factors. Thus there , may be several cases
of one event, it is, however, reasonable to say that an event is caused by one of
these factors , if it would not have happened without that factor.
 From this, it would follow that a man can be said to have caused the actus reus
of a crime, if that actus would not have occurred without his participation in what
was done.
In the United States, causation is known as the doctrine of proximate cause
and it is expressed as a question of ‘foreseeability’. It means that an accused is
liable for the foreseeable and not for the unforeseeable consequences of his act.
Kenny examines the assessment of the physical element(causation) in criminal
liability under the following six heads:
(i) This participation may be direct: i.e., when the accused A kills B
(i) Where there is no physical participation – It is not necessary for criminal
liability that the offender must always physically participate in the commission
of the crime . For instance , a person may be convicted as an accessory,
abettor or a conspirator as the actus reus will be imputed to him also.
(ii) Where the participation is indirect - for example Secretly mixing poison in
The food of a person with the expectation or knowledge that the same would
be served to him by another , would mean that it was the actus reus of the
poison mixer which resulted into the offence.
(iii) Where another person has intervened - for instance, if the prisoner is
engaged in beating the victim as a result of which he is almost at the verge of
death, when suddenly the intervener comes in unasked and gives one or two
final blows, as a result of which the victim dies, the prisoner cannot be allowed
to say that it was not his actus reus, and thus both the prisoner and intervener
may be held guilty of the consequences.
(iv) Where the victim’s own conduct has affected the result – there may be a
situation where the prisoner does something against the victim, as are result of
which the victim suffers injured, and then the victim’s own conduct affects the
final result . For example, where a 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 skillful treatment the death might
have been prevented
(v) Contributory negligence of the victim- Even though the plea of contributory
Negligence is an important plea in the domain of law of tort, it is not so in law of
crimes. Therefore if the prisoner pleads contributory negligence on the part of
the victim towards the harm suffered by him, his plea fails and actus reus would
be attributed to the prisoner alone. For instance, if a driver drives his car at a
dangerous speed and runs over the victim, a pedestrian, who himself was
negligent, the driver would not be allowed to plead contributory negligence on
the part of the victim.
(vi) Where the participation is superfluous – In such situations where the
participation of the accused in a crime has been superfluous , it may still be his
actus reas , if he has participated intentionally in the crime. For instance, if a
person is beating another to death when the accrued comes and joins him in the
process and gives the victim a blow as a result of which he dies, the accused
would be liable, along with the other person, for causing death of the victim, if
they both could foresee that the victim would die as a result of the attack on
him.
An act includes illegal omissions also. A man is held liable if some duty is cast
upon him by law and he omits to discharge that duty. That mean that an
omission must be in breach of a legal duty
 Section 43 of the IPC lays down that the word ‘illegal’ is applicable to
everything which is an offence or which is prohibited by law, or which furnishes
ground for a civil action. An act is not a crime unless prohibited by law. Only
those acts that the law has chosen to forbid are Crimes. No crime is committed
when a soldier , in a battle field shoots an enemy. This act being authorized by
law, the killing is not the actus reus of crime. Similarly, no crime is committed
when a person exercising his lawful right of private defense caused harm to
another.
An Act of omission to be punishable, must be an illegal omission or a breach of
legal duty, for example; a jailor who starves the prisoners in his charge to death
is guilty of murder as he failed to discharge his legal obligation to provide food to
the prisoners. Similarly in another example, if ‘A’ faces some difficulty while
swimming in a river, several persons, some of whom are even good swimmers
stand on the river-side watching ‘A’ drowning. All those persons do not make
any effort to same him. Here inactivity of any one of them cannot be said to be
the cause of ‘A’s death. By not saving the drowning person , they may incur
moral condemnation, but commits no criminal offence. The problem will be
different when ‘B’ pushes ‘A’ into river and ‘A’ gets drowned . In this case ’B’ act
is cause of ‘A’s death.
For the purpose of fixing criminal liability, an act may be analyzed as consisting of
three parts:
(i) Its origin in some mental or bodily activity or passivity of the order, that is, a
willed movement or omission:
(ii) Its circumstances; and
(iii) Its consequences.
In Omprakash v. State of Punjab,AIR 1956, the accused omitted to provide food to
his wife and locked her in a room, she had escaped and charged him. The
Supreme Court convicted the accused for attempt to commit murder.
4. Injury: the word “injury’ as defined by section 44 of the Indian Penal Code
denotes ‘any harm whatever illegally caused to a person, in body, mind,
reputation or property’. Injury must be illegally caused to another human being
or to a body of individuals or to society at large.
 Thus we have seen that there are four elements that constitute a crime.
However, there are a few exceptions to this Rule. Sometimes a crime is
constituted even though the act is not accompanied with guilty mind. There are the
cases of Strict liability.
The following are the examples:
(i) Offences against the State like waging war against the government of India(Section
121)
(ii) Sedition (Section 124-A)
(iii) Assaulting high officers (Section 125)
(iv) Counterfeiting Indian Coin(Section 232)
(v) Abducting (Section 362 )
(vi) Kidnapping (Section 359)
(vii) Bigamy cases under IPC.
A crime is also constituted even though the actus reus has not consummated. That
means cases where no injury has been caused to any person. For example, attempts of
abetment and conspiracy.
Furthermore, there may be a crime were there is neither actus reus nor injury
to a human being. These are cases of serious offence which are taken notice
of by the state prior to the actual commission in the larger interest of
maintaining peace in the society.
These acts branded as crime as a preventive measure, for example making
preparation to commit dacoity under section 399 and assembling for purpose
of committing dacoity under Section 402 of the Indian Penal Code.
According to Write, J, the mens rea is an essential ingredient in every offence
except in the following three cases:
(i) Cases which are not criminal but are prohibited in the public interest
under penalty:
(ii) Public interest; and
(iii) The cases which are in the form of criminal cases but actually are for
enforcing a civil right.
Cases of absence of mens rea also called exemption's under IPC. These are
special circumstances which relieve the offender from criminal liability.
(i) Accidents (Section 80)
(ii) Necessity(Section 81)
(iii) Infancy (Section 82 and 83)
(iv) Intoxication against will (section 85)
Question: Explain recognition of mental element in criminal liability.
Mens Rea or guilty mind or mental element
The general idea of crime associates guilt not with the mere conduct but with
guilty mind, that is, generally there is no crime without an evil mind. This idea
is well expressed by the Latin maxim, “Actus non facit reum nisi mens sit rea”.
Means, (act alone does not make a man guilty, unless the mind is also guilty).
One of the main characteristics of our legal system is that the individual’s
liability to punishment for crimes depends, among other things, on certain
mental conditions. As a general rule a man is criminally liable only for such
consequences of his conduct as he actually foresaw. Liability for such
unforeseen consequences which he ought to have foreseen is termed liability
for negligence.
It is only in exceptional cases that criminal liability is imposed for negligence,
usually Mens rea, actual foresight of the consequences which constitute the
actus reus must be proved..
According to Samshut Huda, the very cornerstone of Criminal Jurisprudence is
the Mens Rea is one of the essential elements of criminal liability.
Act and intent both must concur to constitute a crime, that is physical as well
as mental element both combine to constitute a crime. Of course, the mental
element varies according to different nature of different crimes. Though
essentially a rule of common law, the principle of mens rea has been followed in
statutory offences as well, though in some cases, liability may be fixed with out
any proof of guilty mind . For example for the charge of abduction an underage
girl, an honest and reasonable belief that the girl was major was declared to be
no defense. The House of Lords has taken a view that mens rea shall be a
constituting element of crime unless expressly or by necessary implication, its
application has been ruled out.
 The basic requirement of the principle of mens rea is that, accused must have
been aware of all those elements in his act which make it the crime with which
he is charged. That means, he must have intented the actus rea or have been
reckless whether he caused an actus reus or not. It is not necessary that he
must know that the act which he is going to commit is crime.
Usually Mens rea, actual foresight of the consequences which constitute the
actus reus must be proved. Mens rea refers to the mental element necessary for
the particular crime. Mental element may be either intention to do the act or
bring, about the consequences or in some crimes recklessness as to that
consequence. It implies a blame worthy condition of mind which involves a
knowledge of the character of the act and foresight of the consequences . Mens
rea does not means a single precise state of mind, but it takes on different colours
in different surroundings”.
Origin and Development of Mens Rea in English laws:
The modern notion of mens rea was non-existing until twelfth century, but
criminal intent was not entirely is regarded in respect of certain offences while
awarding punishment . By the time of Edward I the incapacities resulting from
infancy and insanity were recognized as defenses, by the time of Edward III,
coercion was a defense in certain cases of treasons and it had become settled
that in order to hold the owner of an animal criminally liable for injuries done by
it, his knowledge of its ferocity must be shown. During fourteenth and fifteenth
century, the requirements of mens rea as necessary element of crime was
established.
The first systematic treatment of mens rea was provided by Hale, According to
him, penal liability was based on two great faculties, understanding and liberty of
will, no one icurs penal liability for doing an act, ”without intention of any bodily
harm to any person”.
Lord Arbinger in R v. Allday, in 1837, observed that “it is a maxim older than the
Law of England that no man is guilty unless his mind is guilty”.
Volition: Every conscious act which we do is preceded by a certain state of
mind. No physical act is possible without bodily motions and bodily motion
which constitutes act is preceded by a desire for those motions. According to
Austin, “bodily movements obey wills”. Our desires of acts which immediately
follow our desires of them are volitions. That is, the desire which implies the
motion is known as volition. Where the desire is not produced b fear or
compulsion, the act is said to be a voluntary one.
Will: According to Stephen, “will is often used as being synonymous with the act
of volition, which precedes or accompanies voluntary action”.
Intention and Motive: The expectations that desired motions will lead to
certain consequences is the intentions”. We will the act and intend the
consequences.
According to Stephen, “Intentions is an operation of the will directing an over
act; motive is the feeling which prompts the operation of the will, the ulterior
object of the person willing, for example, if a person kills another, the intention
directs the act, which causes death, the motive is object which the person had
in view, for example, the satisfaction of some desire , such as revenge etc.
Intention is the purpose or design with which an act is done. It is the
foreknowledge of the act, coupled with the desire of it. In intention, the actor
chooses, decides , resolves to bring a prescribed harm into being, he
consciously employs means to that end. Intention refers to the immediate
object, while motive refers to the ulterior object which is at the root of the
intention. In other words intention is the means and motive is the end. But
innocence of the motive may not excuse, where intention will excuse bad
motive does not punish and good motive does not excuse.
For example , A removes a cow belonging to B to save the cow from being
slaughtered. Here A had an excellent motive but he will not be excused for, he
unlawfully deprives B of his cow, which legally belongs to him. Similarly, where
an executor hangs his own enemy , who was sentenced by court of law and
thereby gratifies , his spite, shall not be held liable for he has done the fact in
the discharge of legal duty.
Thus we see that, Criminal Law, does not take into account the motives of a
man, but his intentions. According to Salmond, “every wrongful act may raise
two distinct questions with respect to the intent of the doer, the first of these
is: how did he do the act? Intentionally or accidentally. The second is : if he
did it intentionally, why did he do it?, the first is an enquiry into his immediate
intent, the second is concerned with his ulterior intent or motive.
Question: 1. Discuss the factors responsible for variations in liability in criminal
offence.
2. Who are legally abnormal persons? Discuss M’Nagnten answers.
Variations in Criminal Liability: Kenny puts three special circumstances in which the
criminal guilt is lessened or entirely excluded under common law These are:
"mistake", "intoxication" and "compulsion"'.
1. Mistake is to be considered as a good defence, but for this, three conditions are
to be fulfilled.
a) The mistake must be of such a nature that, if the supposed circumstances were
real, there would not have been any criminal liability attached to the accused.
Mistake negatives mens rea and hence, the accused is not guilty. It does not
negative actus reus. Accordingly to Foster, in a case, 'A' before going to the church,
fired off his gun and left it empty. In his absence, some person took the gun, went
out for shooting and on returning left it loaded, later A returned, took up the gun
and touched the trigger, which went off and killed his wife. A had reasonable
grounds to believe that the gun was not loaded. Hence, he would not be guilty of
b) The mistake must be reasonable: This is a matter of evidence. But, this is to
be established to the satisfaction of the Court, for example , A, in order to free
his wife from a demon which had possessed her, held her over fire and with a
red hot poker, which scared her. The wife died in consequence. A had
reasonably believed that he would free her from the devil, with his actus reus.
Held, A was guilty of murder.
c) Mistake however reasonable must relate to matters of fact: The rule is
ignorantia facti excusat : Ignorance of fact excuses ignorantia juris non excusat.
Ignorance of law is no excuse. For example, An Italian who kept a lottery house
in England was held guilty. His plea that in Italy the act was legal and that he
had mistaken notion of English law, was rejected by the court. In India, Sections,
76 and 79 deal with mistake of fact and mistake of law . The old law in England,
dealt with intoxication as one which aggravated the crime and hence,
punishable. But, in the present day, the effect of intoxication is considered as
similar to illness produced by poison etc. Hence, actual insanity, produced by
drinking as in "delirium tremens", is a defence. This should be established as a
fact. If the intoxication, is caused by a companion and not voluntarily by the
accused himself, then the accused is exempted.
Murder. However, it is to be established before the court that the accused was
incapable of knowing the nature of his act. Drunkenness may be relevant :
i) to establish a mistake
ii) to show the absence of intention or specific intention
iii) to show this as part of an offence e.g. drunken person in charge of child of
seven years, or drunken driver causing an accident etc.
iv) to show that it has happened in provocation.
A in a fit of passion, is provoked and kills B, who was responsible for the
provocation. In some circumstances, this is culpable homicide and not murder.
The general rule is that intoxication is not a defence but may be relevant as stated
above. The position in India is stated in Section 85, IPC.
d) Insanity of a particular and appropriate kind is regarded as a good defense in
English law(Abnormal persons): Medical profession has classified these mental
variations. The leading case is R.V. Mcnaghten. One M had killed Mr. Drummond
the private secretary of Sir Robert Peel. But, in reality, by mistake,, he had killed
 not the real Mr. Drummond. Insanity was the ground of defence. He was acquitted on
this ground. This caused great resentment and the House of Lords stated certain
principles as guidelines:
i) Every person is sane, until proved otherwise.
ii) At the time of committing the offence, the accused must be, labouring from a
disease of mind to lose his reason and to know whether what he was doing was wrong
or not.
iii) If he was conscious that the act was one which he ought not to do, he is punishable.
iv) the nature of the delusion decides the question. The actus reus must have been
actuated by delusion directly.
The burden of proof is on the accused to prove his insanity. In India under Section 84
of IPC, Insanity is a defence, if the offence is done by a person, who at the time of
doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the
act, or knowing the nature of what he was doing was wrong or illegal, he is not guilty of
the offence.
In Sakaram Ramji's case, the accused was a habitual ganja smoker. He quarrelled with
his wife and killed her and the children. The plea that he had a diseased state of
mind due to Ganja, and that he was incapable of knowing what he was doing, was
rejected by the court .Held Guilty of murder.
Note: (The above notes is , English common law view of abnormal persons. The
Indian view, is dealt clearly in Unit II under Section 84 of IPC in General
exceptions. If a question is asked about Insane or unsound mind or Abnormal
persons, then both common law and Indian should be covered inexams).
Question: “The intent and the act must both concur to constitute crime”.
Explain it the statement with reference to Khandu’s case.
Introduction: Intent(Mens Rea and Actus Reas already explained. Please write
one page about mens rea and actus reas)
Apparently on the face of it, the application of this principle looks easy , but the
truth is sometimes otherwise when a practical situation comes before a court,
one of the reasons for the same is that the mental element is difficult to prove .
Chief Justice Brian had observed, “These words becomes very famous and widely
quoted over the years. Kenny has mentioned some cases where the courts had a
tough time deliberating over the issue of physical and mental elements in criminal
liability.
In a famous case, R v. Khandu, 1890, the accused gave some blows on the head of
the deceased with the intention of killing him, as a result of which the deceased
became unconscious. Believing him to be dead, and with a view to remove evidence
against himself. The accused set fire to the victim’s hut. The medical evidence said
that even though the deceased suffered serious head injuries, he had died not
because of the same , but of burning. The accused pleaded that his crime had been
committed in two stages. In the first, when he hit the deceased on the head even
with the guilty mind, that is his intention to cause death, could be concluded from
evidence the medical report said that the death did not result because of head
injuries. This showed that mens rea was present but actus reus was absent. So guilty
act And guilty mind both not being present together at this stage, his liability under
criminal law did not exist. In the second stage, when he set fire to the hut he was
already under the belief that the deceased was dead, which meant that his guilty
mind had already ceased, and he set fire to the hut only with a view to destroy the
evidence to save himself. At this stage too both guilty act and guilty mind were not
present together, since only actus reus and not mens reas was present, and he
could not be held guilty of the crime. The court accepted his plea and his
conviction of murder was quashed.
In Thabo Meli and others v. R, 1954, the accused persons invited the deceased
to a hut at night, offered him with beer and beat him on the head with the
intention of killing him. Believing him to be dead, even though he was only
unconscious at the time, they took the body put and rolled it over a cliff with a
view to make it appear that the deceased had stumbled over in the darkness and
had been killed by the fall on the stones. The, medical evidence held that cause
of the death to be the result of exposure to cold and not the head injuries or the
rolling down of the body over the cliff.
The pleading on the part of the accused was similar to that of Khandu’s
case and as stated above, that the crime was committed in two stages; in the first
the mens rea was present but the actus reaus was not, and in the second the
actus reus was present but the mens rea was absent, and thus they could not be
held guilty of murder because of the principle actus non facit reum nisi mens sit
rea. Rejecting the argument of the defence, the court held the accused guilty of
Murder, observing that the whole transaction was one that could not be
divided into two stages claimed by the accused and escape from penalty
could not be granted to them merely because at one stage they believed that
their guilty purpose was achieved before in fact it was achieved.
The judgemnt in Meli was diffferent from Khandu’s case. It seems that the
case of Khandu were not cited in Meli and, therefore, the court in Meli was
not obliged to distinguish between these two judgments on the one hand
and judgment in the Meli’s case, on the other. Had they been cited , it would
have been interesting to see the reaction of the court in the latter case. It
seems that there are two kinds of Judges, strict and liberal. A strict judge
may feel that once it is proved that the accused had intention to kill the
deceased, it is immaterial as to whether he killed him during the first stage or
the second. The important thing is that the deceased is killed by the accused
intentionally. On the other hand, a liberal judge may think, that in a criminal
trial an accused is entitled to any benefit, even if technical, since the
prosecution is bound to prove a case against him beyond reasonable doubt,
and to cast any show on the story of the prosecution is an accused's inherent
legal right .
Question: What is mens rea ? State it significance in statutory offences.
Introduction: Men rea and Statutory Offences:
The doctrine of Mensrea has not been expressly mentioned in the crime defined in
the statute, as an ingredient of the crime but its concept was introduced into the
statutory offences by the Judges by means of construction without any parliamentary
sanction. the question whether the common law requirement of mens rea must
imported into every crime defined in the statute even where it is not expressly
mentioned as an ingredient has been discussed in a number of cases both English and
Indian court.
R v . Prince, 1875 and Queen v. Tolson, 1889, are the two landmark statutory offences
by the judges by means of ‘construction without any Parliamentary sanction.
There are two schools of thoughts. One embodied in the judgment of wright J., in
Sherras v. De Rutzen, 1895, that “in every statute mens rea is to be implied unless the
contrary is shown, and the second is that of the statute literally unless there is
something to show that mens rea is required . On either view mens rea is implied in
certain statutes and not in others, although there are no words in the statute itself to
show a recognition of mens rea and judges provide for it on their own authority”.
 the maxim of mens rea has been applied to all common law crimes in
England, without any reservation. Its application to statutory offences was
however was uncertain for a long time. The application of mens rea in
statutory offences may be explained through the following land mark cases:
1. The queen v. Prince, 1875
Henry Prince was tried upon the charges of having unlawfully taken Annie
Phillips, an unmarried girt under the age of 16, out of the possession and
against the will of her father contrary to Section 55, of the Offences Against the
Person Act 1861 in England . which states that, whoever shall unlawfully take
any unmarried girt under the age of 16 out of the possession and against the
will of their father or mother or any other person having the lawful care or
charge of her, shall be guilty of a misdemeanour”.
It was proved that the accused believed on reasonable grounds that the girl
was above 16 and the jury found upon reasonable evidence that before the
accused took her away she told him that she was 18, and that the accused
bon fidely believed that statement, and that such belief was reasonable.
However the lower court convicted the accused and the House of Lords by
Majority of 15 to one, upheld the conviction.
In this case a distinction was drawn between acts that were in themselves
innocent but made punishable by statute (Malnum Prohibitum) and acts that
were intrinsically wrong or immoral (malnum in se). In the former a belief, a
reasonable belief, in the existence of facts which, if true, would take the case
out of the mischief of the statute, would be a good defence , but in the latter
case, such belief was immaterial unless of course the law made it otherwise.
The man acted under such erroneous belief took the risk and should suffer the
consequence.
The real ground of conviction was that the accused had committed an act which
was forbidden by the statute and it was not only a legal wrong but also a moral
wrong. The decision is very controversial and has been the subject of criticism
by many writers. Russel, regarded this decision as unsatisfactory, as it is in
conflict with the established principles of criminal law.
In Queen v. Tolson , 1889, In this case the accused was tried under Section 57
of the Offences Against the Person Act, 1861 for having committed the offence
of bigamy. In this case Mrs. Tolson was married to Mr. Tolson in 1880 and after
one year in 1881, she was deserted by her husband. She made all possible
enquiries about him and ultimately came to know that her husband had been
destroyed in a ship bound for America. Therefore, supposing herself to be a
widow she married another man in 1887. the whole story was known to the
second husband and the marriage was not a secrecy.
In the meantime Mr. Tolson suddenly reappeared and prosecuted Mrs.
Tolson on charges of Bigamy. Which stated that “Whoever, being married, shall
marry any other person during the life of the former husband or wife shall be
guilty of felony, punishable with penal servitude for not more than seven years,
or In the trial court she was convicted for one day’s imprisonment on the ground
that, a belief in good faith and on reasonable facts about her husband`s death is
no defence to the charge of bigamy. The accused went to the higher court by way
of appeal.
The question before the appellate court was whether Mrs. Tolson had guilty
intention in committing the offence of bigamy. The appellate court by majority
set aside the conviction on the ground that a bona fide belief about the
death of the first husband at the time of second marriage is a good defence
in an offence of bigamy. The court also laid down that the doctrine of mens
rea would be applied in statutory offences also unless it is ruled out by the
statute.
In Sherras v. De Rutzen, 1895, it was observed that mens rea is an
essential element in every offence except in the following three cases.
(a) Cases not criminal in any real sense, but which in the public interest are
prohibited under a penalty; for example, the Revenue Acts;
(b) Public nuisances; and
(c) Cases criminal in form but which are really only a summary of enforcing
a civil right.
The above stated observation still holds good in majority of the statutory
offences, whether the guilty mind has been expressly mentioned therein or
not.
 In State of Maharashtra v. H.H. George, AIR 1965, the Supreme Court
considered the application of the principle of mens rea in statutory offences.
The court held that, unless the statute either clearly or by necessary implication
rules out mens rea as constituent part of a crime, a defendant should not be
found guilty of an offence against the criminal law unless , he has got a guilty
mind. Absolute liability is not to be lightly presumed but has to be clearly
established.
Mens rea is the sense of actual knowledge that act done contrary to law is not
an essential ingredient of the offence under many laws , for example in this case
it was held that under Foreign Exchange Regulations Act, 1947, the mere
voluntary act of bringing gold into India without permission of the reserve Bank
constitutes the offence even without mens rea.
In R. S Joshi v. Ajit Mills Ltd., 1977, the Supreme Court observed that a
person may be liable for the penal consequences for the acts done by him
whether he had done it with guilty mind or not, it is a matter of common
knowledge that for proper enforcement of statutory provisions,
The rule of strict liability is created and the acts falling in this category are
punished even in the absence of guilty mind.
In Sweet v. Parsley, 1969, the Supreme Court observed that where an offence
is created by some statute, the language of the statute should be read with this
rebuttable presumption that the common law doctrine that there can be no
crime without mens rea, has not been dispensed with by the statute
concerned.
In addition to the above provisions under the Indian Penal Code, there are
other statutes such as Prevention of Adulteration of food Act, Prevention of
Prostitution Act, The Shops and Establishments Act, Weights measures Act,
Arms and Explosives Act, the environment Protection Act, the Water
(Prevention and Control of Pollution ) Act, The AIR(Prevention and Control of
Pollution) Act, 1981, etc, in which various liabilities are imposed upon the
masters even without mens rea.
(Kindly note: write here a note on the words used in IPC for the presence of
Mens rea . It is covered in the next question).
Question: Discuss the role of ‘mens rea in the context of Indian Penal Code.
Mens rea and Indian Penal Code:
The Principle of actus non facit reum nisi mens sit rea is applicable in India,
both in the Indian Penal Code and in other criminal statutes. In the former, the
maxim is applicable in three ways, (i) Positvely, (ii) negatively and (iii)on the basis
of strict liability.
(i) Positively: Positive application is shown by the use of words denoting a
particular guilty mind in the definition of a particular crime itself by the use
of words, such as intentionally, knowingly, rashly, negligently, dishonestly,
fraudulently and the like have been used in different section of the Code
while describing a particular offence. This shows that for that particular of
offence that particular word denote the guilty mind, which must be proved
against the offender for conviction .
(ii) Negatively: Negative application of the concept of mens rea in the IPC is
visible in Chapter IV dealing with general exceptions. The various sections 76
to 106 in this Chapter show that an offender cannot be held guilty of an
Offence, if any of these exceptions is available to him, because the law presumes
that his guilty mind is absent when he is acting under an exceptions. All these
exceptions presume absence of guilty mind on the part of the offender.
(iii) Strict Liability: the third way in which the actus non facit reum nisi mens sit
rea, rule is applicable in the Indian Penal code , is by strict liability. In certain
offences mere doing something has been made punishable, and there is no
need to prove any guilty mind against the offender. In such case, the law
presumes that doing of that thing must have been done with guilty mind and so
is punishable. For instance, in obscenity under section 292 , mere selling or
distributing or importing or exporting etc, any obscene object has been made
punishable and no guilty mind need be proved.
In certain statutes other than the IPC, the strict liability principle has been
incorporated in India. These statutes punish mere doing of something irrespective of
any guilty mind on the part of the offender. For example under The Arms Act 1959,
The Prevention of Food Adulteration Act, 1954 and many other statutes have similar
provisions.
 the term ‘mens rea’ is not mentioned anywhere in the IPC. Though ‘mens rea’
is an essential ingredient of an offence, but almost all the offences under the IPC
are qualified by one or the other words such as ‘wrongful gain or wrongful
loss(defined by Section 23) dishonestly (S 24), fraudulently(Section 25) ‘reason
to believe (S 26), criminal knowledge or intention (S 35) intentional
cooperation(S 37), voluntarily (S39), malignantly S. 153 & 270), wantonly (S
153), Maliciously (S 219 & 220). All these words indicate the blameworthy
mental condition required at the time of commission of the offence in order to
constitute an offence.
Thus though the words ‘mens rea’ as such are nowhere found in the IPC, its
essence is reflected in almost all the provisions of the IPC, 1860. Every offence
created under the IPC, virtually imports the idea of criminal intent or mens rea
in some form or other.
In the following offences under IPC, the Mens rea is a important factor for
example:
1. Intentionally joining an unlawful assembly –section 142
2. Harboring rioters knowing fully well that they are rioters –Section 157.
3. Fraudulently dishonestly or with intent to injure making a false claim in Court –
Section 209.
4. Fraudulent use of weighing instrument knowing it to be false – Section 264.
5. Uttering words with deliberate intention to wound religious feelings. – Section
298.
Though ‘mens rea’ is an essential ingredient of an offence, it is not essential in
respect of certain offences , for example :
1. Waging war(S 121).
2. Kidnapping (S 359)
3. Abduction (S 363)
4. Counterfeit of coins (S 232)etc of Indian Penal Code.
As per IPC, Mens rea may be of any of the following forms:
Intention: intention means a purpose or desire to bring about a contemplated
result or foresight that certain consequences will follow from the conduct of
the person . The term ‘Intention’ is expressed also by words such as
‘voluntarily’, willfully’, ‘deliberately’, ‘deliberate intention’, ‘with the –purpose
of, or knowingly’ in the various sections of the IPC.
(i) Fraudulently: According to section 25 of the IPC, “A person is said to do a
thing fraudulently, if he does that thing with intention to defraud but not
otherwise”.
(ii) Dishonestly: Section 24 of the IPC provides that “whoever does anything
with the intention of causing wrongful gain to one person or wrongful loss
to another person, is said to do that thing ‘dishonestly’.
(iv): With Knowledge: Knowledge is awareness on the part of the person
concerned, indicating his state of mind . Knowledge is a an awareness of what
he is doing and the consequences of the acts.
(v): Corruptly: the words ‘Corrupt’ and ‘Corruptly’ usually imply that an act is
done dishonestly without integrity for the sake of unlawful gain or advantage.
(vi) Malignantly: An act done with a desire to hurt with a deep rooted ill will or
do harm to life violently.
(vii)Maliciously: Malice is a wrongful act done intentionally without just cause
or excuse. Malice in its ordinarily sense means any wicked or mischievous
intention, a depraved inclination to mischief or a wanton disregard of the
safety and rights of others.
(viii) Wantonly: Wantonly means doing a thing recklessly or thoughtlessly
without regard to its consequences. It implies a state of mind that is
heedless, without excuse , regardless of the rights of other, reckless and
perverse.
(iii) Voluntarily: Generally, the word ‘voluntarily’ means 'an act done without
influence or compulsion'. According to Section 39 of the Code – “A person is
said to cause an effect voluntarily when he causes it by means which, at the
time of employing those means, he knew or had reason to believe to be
likely to cause it.” The word ‘voluntarily’ as used in Section 39 takes into
account not only intention but also knowledge and reasonable grounds of
belief. Voluntarily causing an effect embraces- –
(a) with intention to cause the effect,
(b) with the knowledge of likelihood of causing the effect.
(c) having reason to believe that the effect is likely to be caused.
In Emperor V. Raghu Nath Rai, 1892, In this case, a Hindu took away a calf
from a Mohammeden’s house without his knowledge and consent in order to
save it from slaughter. The accused was held guilty of theft and rioting
although he acted with the best of motive to save the life of the sacred cow.
(ix) Negligently: It does not denote evil intent, but denotes that, want of care
with which people of reasonable prudence are expected to act and the
want of which is culpable. In case of negligence the party does not
perform an act to which he is obliged; he breaks a positive duty. He does
not advert to the act which it is his duty to do. A person is negligent, if he
fails to exercise such care, skill or foresight as a reasonable man in his
situation would exercise.
(x) Rashly: In rashness, the party does an act which he is bound to forbear;
he acts hastely. Here he adverts to the act but not to the consequences
of the act he does.
The Supreme court of India , one more than one occasions , has
reiterated that unless a statute, either clearly or by necessary implication
rules out mens rea as a constituent part of a crime, a person may not be
found guilty of an offence, if he does not have a guilty mind.
The Code also contains a separate Chapter i.e. Chapter IV on General
Exceptions (Section 76 to 106) which indicates the circumstances where the
absence of Criminal intent may be presumed. This negative method of applying
mens rea has been found to be very useful.
Parties to the crime
Question: Explain possible parties to a crime. How the liabilities of parties
varies?.
a crime may not always be committed by a single person. It may be
committed by several persons and persons who participate in a crime are
referred as Parties to a crime.
At common law the different parties to a crime were carefully classified. The
classifications were broken down in two ways; first, according to the severity of
the crime, so that there were differences between parties to a crime and
parties to a misdemeanour, and, second, according to what stage in the
commission of the crime that the party helped the criminal. Thus, there were
differences between people who encouraged the commission of the crime,
people who actually assisted with the commission of the crime, and people
who assisted the criminal after he had completed the crime.
 The parties to a crime, are classified both according to their role in the
execution of the crime, and whether or not they were present when the crime
was actually committed. At common law, a party to a crime can fall into one of
four different classifications:
1. principal in the first degree,
2. principal in the second degree,
3. accessory before the fact, and
4. accessory after the fact.
1. A principal in the first degree: is the person who actually commits the
crime himself or causes an innocent person to commit the crime for him.
for example: Ram buys a gun and uses it to rob the Ravan . Ram is a principal
in the first degree because he has actually committed the crime himself.
In the second example, Ram sends his son Lav into the store with a
counterfeit twenty dollar bill and instructs him to buy two six-packs of beer and
a pack of cigarettes. Luv has no idea that the money is counterfeit. Since
passing counterfeit notes is a crime, Ram is a principal in the first degree
because he has caused an innocent person, Lav, to commit the crime for him.
2. Principal in the II degree: He is a party who aids , assists, encourages or
instigates the Principal in the I degree during the commission of the crime. He
may or may not be physically present at the location of the crime, but indirectly
instigates, encourages or aids in the commission of the offence. He is
otherwise called as 'Accomplice’. Principal in the II degree is punished to the
same degree as the Principal in the I degree.
For example: Ram and Lav together a plan to rob the Canara Bank . Ram and
Luv drive up to the front of the bank. Luv sits in the car waiting to drive away
when Ram runs out with the money. Ram goes inside and actually commits the
robbery. In this case, Ram is a principal in the first degree because he has
actually committed the crime. Luv is a principal in the second degree because,
he has assisted in the commission of the crime by helping to plan the robbery
and by driving the getaway car, and he is present at the bank at the time the
crime is being committed.
3. Accessory before the fact: a person who is not actually or constructively
present but contributes as an assistant or instigator to the commission of
an offence is called ‘accessory before the fact’. The offence of abetment
under Section 108 of IPC corresponds with the offence of ‘Accessory before
the fact’ under English law.
4. Accessory after the Fact: An accessory after the fact is someone who gives
post-crime assistance to the criminal. In order to be convicted as an
accessory after the fact, the defendant must have known that the person
he was helping had committed a crime and he must have given the help,
comforts, harbours or assists concealing the offender, with the intent of
interfering with the criminal’s capture, prosecution or conviction.
Both accessory before the fact and accessory after the fact are punishable
under IPC.
 Chapter: 3
Application or Jurisdiction of Indian Penal Code 1860 (section 1 to 5)
Questions: 1. Explain the territorial jurisdiction of Indian Penal Code with
exceptions.
2. Critically examine the territorial and extraterritorial jurisdiction of the Indian Penal
Code.
Introduction: Jurisdiction is the extent or limit within which a State can exercise its
legal authority. A State can exercise jurisdiction over any person within its territory
and sometimes, beyond its territorial limits. Hence there are two types of
jurisdictions:
According section 1, the IPC, The Act shall be called the Indian Penal Code, and shall
extent to the whole of India except the State Jammu and Kashmir. Hence every
person shall be liable to punishment under this Code and shall be liable for every act
or omission , which is defined under Indian Penal Laws.
The jurisdiction of IPC is divided into two, they are:
1. Territorial jurisdiction
2. Extra territorial jurisdiction.
 I Territorial Jurisdiction:
Section 2, IPC, Punishments of offences committed within India: According to
this Section, “ Every person shall be liable to punishment under this Code and
not otherwise for every act or omission contrary to the provisions thereof, of
which he shall be guilty within India”
According to Section shall be guilty within India, without any distinction of
nation, rank, caste or creed, according to Section 2 of IPC, Every person shall be
liable to punishment under this Code, and not otherwise for every act or
omission contrary to the provisions thereof, of which he provided the offence
with which he is charged has been committed in some part of India.
The IPC applies to any offence committed:
(i) Within the territory as defined in Article 1 to 4 of the Constitution.
(ii) On any ship or aircraft either owned by India or registered in India, and
(iii) Within the territorial waters of India . In State of Maharashtra v. Mayer Hans
George, 1965, In this case, a German national left Zurich for Manila by a
Swiss plane with 34 kilos of gold via India. He had not declared it in the
manifest for transit. The plane arrived at Bombay.
 The passenger had remained in the plane. The Indian customs authorities, on search,
recovered the gold carried by him on his person. He was prosecuted for importing
gold into India in breach of the Foreign Exchange regulation Act, and the Notifications
of Reserve Bank of India which was published in the Gazette of India. He pleaded
ignorance of law. Rejecting the argument , Supreme Court held that even a foreigner
cannot take the plea of ignorance of law.
Further, clarified that a foreigner who enters the Indian territories , accepts the
protection of Indian law virtually gives an assurance of his fidelity and obedience to
them and submits himself to their operation. It is no defence on behalf of a foreigner
that he did not know he was doing wrong, the act not being an offence in his own
Country.
While under the IPC, there are no exception to the jurisdiction in favour of any person,
but the following persons are always exempted from the jurisdiction of Criminal
Courts of every Country.
1. Foreign Sovereigns: are the persons completely exempted from the jurisdiction of
the IPC. The real principle on which the exemption, of every sovereign from the
jurisdiction of every court, has been deduced is that the exercise of such jurisdiction
would be incompatible with his regal dignity .
2. Diplomats: According to United Nations Privileges and Immunities act, 1947 and the
Diplomatic Relations (Vienna Convention) Act, 1972, a Diplomatic agent
shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also
enjoy immunity from its civil and administrative jurisdiction except in the case of in some
property matters.
3. Alien enemies: In respect of acts of war , alien enemies cannot be tried by criminal
Courts. If an alien enemy commits a crime unconnected with war. For example theft,
he would be triable by ordinary criminal courts.
4. Foreign army: When armies of one State are by consent on the soil of a foreign
State, they are exempted from the jurisdiction of the State on whose soil they are.
5. Warships: Men-of-war of a State in foreign waters are exempt from the jurisdiction of
the State within whose territorial jurisdiction they are. The domestic Courts, in
accordance with principles of international law, will accord to the ship its crew and
its contents certain immunities. War ships of a foreign country can enter territorial
waters of India only with the permission of the Government of India. The immunities
can, in any case, be waived by the nation to which the public ship belongs.
6. Merchant Shipping Act: Where offences were committed by a shipping company
which fell under the Indian Penal Code, it was held the Merchant Shipping Act, 1955
did not bar proceeding under the Criminal Procedure Code 1973.
3. High Dignitaries of the State: The President of India and governors of the
State are exempted from the jurisdiction of the Code. Article 361 of the Constitution
provides that ‘no criminal proceeding shall be instituted or continued against the
President or a Rajyapal of a state in any Court during the term of his office.
8. Corporations: A Company cannot indictable for offences which can be committed
by a human being alone, like treason, murder, perjury etc. or for offences which are
compulsorily punishable with imprisonment or corporal punishments.
Section 2 of the IPC means only natural person and does not include judicial or
artificial persons such as corporations.
II Extra territorial Jurisdiction: According to Section 3, of IPC:
Any person liable , by any Indian law , to be tried for an offence committed beyond
India shall be dealt with according to the provisions of this Code for any act committed
beyond India in the same manner as if such act had been committed within India.
This Section, provides that an Indian Citizen may be prosecuted in India for anything
done in foreign lands, if it is an offence under any Indian enactment though it may
not be a crime in place of commission, for example if an Indian commits
adultery in England, where it is not an offence, but is an offence all these days
in India(Now it is decriminalised). He may be prosecuted in India.
According to Section 4, od IPC: extension of the IPC to extra-territorial
offences: The provisions of this code apply also to any offence committed by-
(a) Any citizen of India in any place without and beyond India;
(b) Any person on any ship or aircraft registered in India , wherever it may be:
(c) Any person in any without and beyond India ; committing offence
targeting a computer resource located in India.
(d) The word ‘offence’ under IPC , includes every act which is punishable
under the IPC, though committed outside India, which if committed in
India, would be punishable under this Code.
Illustration: A who is a citizen of Indian, commits a murder in Uganda . He can
be tried and convicted of murder in any place in India in which he may be
found.
Both Section 3 and 4 extend the jurisdiction of Indian courts beyond the territorial
limit of India.
section 4 of the IPC along with Section 3 relates to extra-territorial operation of the
IPC. The operation of Section 4 is restricted to the cases specified in Extradition
act, 1962 and the Criminal Procedures Code 1973, Sections 188 and 189. Extra
territorial jurisdiction may be exercised by the Indian Courts for offences committed
beyond the territories of India either on land or high sea.
The accused must be a citizen of Indian at the time of committing the offence and
not a person who has become a citizen subsequently. For example, Mr. Mallya who
is citizen of India, commits a murder in London. He can be tried and convicted of
murder in any place in India in which he may be found.
The operation of Section 3 is restricted to the cases specified in the Extradition Act,
1962 and the Criminal procedure Code 1973.
In Remia v. Sub-Inspecto, Tanur, 1993, in this case, it was accused that an Indian
citizen was murdered by another Indian citizen in a foreign country and the police
refused to register an FIR on the ground that the offence was committed outside I
India. The Kerala High Court held that the refusal was illegal and directed to register
the crime and proceed with investigation in accordance with the Law under section 3
of IPC.
The other aspects are:
2. Offences committed in India by Non Citizens: every person who is within the
Indian territory is punishable, whether he is an Indian or a foreigner. The
citizenship or nationality of the person is immaterial .
3. Offences committed by non citizens outside India: Non citizens cannot be tried
in India for the offences committed outside India. A person who was not an
Indian citizen at the time of commission of the offence, but acquired Indian
citizenship subsequently cannot also be tried by Indian Courts, as jurisdiction
cannot be conferred retrospectively.
In one of the cases, A, a Pakistani national doing business in Karachi with dishonest
intention, made false representation to B at Bombay through letter, telegrams and
telephonic talks that he would ship rice to B on receipt of money. The complainant B
sent the money in the hope of getting the supply of rice which was never shipped. A
was arrested when he arrived in Bombay and was prosecuted. Here A has committed
the offence of cheating and can be prosecuted in India.
3. Offences committed by Indian citizen partly in India and Partly outside
India: If an act constituting an offence is done by an Indian citizen partly in
India and partly outside Indian, then IPC has jurisdiction to try the offence, if
he two acts together constitute an offence under the Code.
Extradition :
Extradition is the surrender by one nation to another of an individual accused or
convicted of an offence outside of his own territory and within the territorial
jurisdiction of the other, which being competent to try and punish him,
demands its surrender. To effect the extradition, there must be an extradition
agreement between two courtiers. There are extradition agreements between
Indian and other Countries like Britain . There s no such extradition agreement
between India and some countries like Pakistan. The Indian Government
enacted the Extradition Act 1962.
Indian Courts have power to try offences committed outside India on
(i) Land;
(ii) High sea, or
(iii) Aircraft
1. Land: by virtue of Sections 3 and 4 of the Indian Penal Code and Section 188 of
the Criminal Procedure Code1873, Indian Courts can take cognizance of offences
committed beyond the territories of India. The provisions of Section 4 shall not
apply if the offender at the time of commission of the offence, was not a citizen
of India.
2. High Seas(Admiralty Jurisdiction): High seas are open to all, and represent the
entire sea-space beyond the three mile limit of the shore. The expression
includes all ocean seas, bays, channels, rivers. Creeks and waters below low
water mark, and where great ships could go, with the exception only of such
parts of such ocean and as are within the territory of some country.
According Section 4 of the IPC, the admiralty jurisdiction extends over
(a) Offences committed on Indian ships on the high seas;
(b) Offences committed on foreign ships in the Indian territorial waters;
(c) Piracy.
(a) Offences on Indian Ships: All persons on board the ship, whether citizens
of Indian or foreigners are entitled to the protection of Indian law.
(b) Offences on Foreign Ships: The jurisdiction also extends over Indian ships
although they may be at a place, where the foreign municipal authorities
may also exercise concurrent jurisdiction, if invoked. The admiralty
jurisdiction also extends when an offence is committed on a foreign ship
but within the territorial waters of India. In this case also the Indian Courts
as well as the Courts of a foreign Country whose flag the ship is flying have
concurrent jurisdiction by virtue of the Admiralty Offences Act, 1849 and
the Merchant Shipping Act 1894, as if they were committed within the
local jurisdiction of those Courts.
(c) Piracy: Piracy means sailing on the seas for private ends without
authorisation from the Government, with the object of committing
robbery or depredations upon property or acts of violence against
persons. Pirates attack by sea without any authority from any State.
3. Aircraft: The provisions of the Indian Penal Code are made applicable to any offence
committed by any persons on any air-craft registered in India, wherever, it may be.
Liability of foreigners in India for offences committed outside India: foreigner in a foreign
territory initiates an offence which is completed within India territory, he is
amenable to IPC, if found within whose jurisdiction the offence was completed. The
question is not ‘where the act was committed’ but ‘where the offender was when the
offence was committed’. ‘A’ foreigner, resident in a foreign country instigates the
commission of an offence which , in consequence is committed in Indian territory. ‘A’
will not be amenable to the jurisdiction of an Indian Court or any special or local law.
According to Section 5, of the Act, Nothing in this act shall affect the provsions of any
Act for punishing offences of Mutiny and and desertion of officers, soldiers, sailors
or airman in the service of the Government of India or the provisions of any special or
local laws.
The personnel of the Army, Navy and Air force are government by the
provisions of the Army Act, 1950, the Navy Act, 1957band The Indian Aircraft Act,
1950, in regard to offences of mutiny and desertion committed by them.
A person cannot be punished under both IPC and a special law for the same
offence and ordinarily the sentence should be under the special Act.
 Chapter 4 –General Explanations
Wrongful gain and wrongful loss (Short notes): Section: 23
Wrongful gain: “ Wrongful gain” is gain by unlawful means of property to
which the person gaining is not legally entitled.
The word ‘wrongful gain’ is not defined, though ‘illegal’ is defined in
section 43 of the Code ‘wrongful’ means prejudicially affecting a party in
some legal right. The gain or loss in order to be wrongful within the
meaning of this section must be caused by unlawful means. The means
are said to be unlawful when they render liable to an action or
prosecution.
A person is said to gaining wrongfully when such person retains
wrongfully. As well as when such person acquires wrongfully. A person is
said to lose wrongfully, when such person is wrongfully kept out of any
property, as well a when such persons wrongfully deprived of property.
Ingredients: “wrongful Gain” implies:
(i) Gain of some property;
(ii)The property to which a person was not legally entitled; and
(iii)
Gain must be by unlawful means.
(iv)Wrongful gain means acquiring wrongfully as well as retaining wrongfully. It
means not only taking another’s property wrongfully but includes retaining
of the property wrongfully where the taking of it, was not wrongful.
In Mahalingayya Pujari , 1959, a postman signed the postal receipts of a V.P.
Parcel Himself with a view to make it appear that they were received by
the addressee and retained the parcel himself, it was held that retention of
the parcel was wrongful gain because postman was bound to return the
undelivered parcels to the postmaster.
Wrongful Loss(Short Notes):
Similarly wrongful loss means:
(i) Loss of some property
(ii) The property to which the person losing was legally entitled and
(iii) Loss must have been caused by unlawful means.
wrongful loss means illegally depriving a person of his property . For either
wrongful gain or loss the owner must lose his property or must be
wrongfully kept out of it.
In Narashimhulu v. Nagur Sahib, 1933 , the accused demolished a private
structure because it was an encroachment on a public street . It was held
that, as the accused had no justification in law to demolish the structure,
their acts amounted to causing wrongful loss and they were guilty of
mischief.
Dishonestly (Short notes): According to Section 24, Whoever does anything with
the intention of causing wrongful gain to one person or wrongful loss to another
person, is said to do tht thing dishonestly.”
the term “dishonestly” is not used in this section in its popular significance,
as it need not always involve an element of fraud or deceit. In order that an act
may be said to have been done dishonestly under the Code , wrongful gain to
one and wrongful loss to another is necessary.
Therefore, this section has to be understood in conjunction with Section 23
(Wrongful gain and wrongful loss). It is not necessary for a thing to be done
dishonestly that there should be an intention to cause both wrongful gain and
wrongful loss, intention to cause wrongful loss would be sufficient. A person
can be said to have dishonest intention if in taking the property, it is his
intention to cause gain by unlawful means of the property to which the person
so gaining is not legally entitled or to cause loss by wrongful means of property
which the person so, losing is entitled.
An actual intention to convert an illegal or doubtful claim into an apparently
legal one makes an action dishonest.
In Krishna Rao’s case, held in the year 1953, ‘A’ entitled to possession of
his house from B, sued B for arrears of rent basing his claim on a rent note
which was found to be not genuine. A was not entitled to rent at a rate
fixed by the rent note. A had an intention to cause wrongful gain and
therefore, the claim was held to have bee made dishonestly.
Fraudulently(Short Notes): According to IPC Section 25, A person is said to
do a thing fraudulently, if he does that thing with intent to defraud but not
otherwise.
In order to determine, whether an act was done dishonestly under
Section 24 or fraudulently under Section 25, intention with which an act is
done is very important. An act is done fraudulently, if it is done with
intention to defraud.
The words ‘fraud’ and ‘defraud’ has to be determined with reference to the
context in which the word fraudulently is found, because it may or may
not imply deprivation of property. Fraudulently as part of the definition
 of crime implies the following elements:
(i) Deceit or an intention to deceive or in some cases mere secrecy;
(ii) Either actual injury or possible injury or an intent to expose some person
either to actual injury or to a risk of possible injury by means of the deceit
or secrecy.
Fraudulently does not include the element of actual loss to any member of the
community. It would be enough that the accused had aimed at an
advantage by the deception, such advantage being always regarded as
having an equivalent in loss or risk to some other member or members of
the community.
Distinction between fraudulently and dishonestly
1. Dishonestly does not require deception or concealment as its ingredient;
while deception or concealment is an ingredient of fraudulently.
2. Dishonestly requires an intention to cause wrongful loss or wrongful gain of
property Fraudulently does not require such an intention. There can be
fraud even though there is no intention to cause pecuniary loss or damage
to the person deceived.
Questions: Explain the Criminal Liability of persons for the acts done in furtherance
of common Intention.
Short notes : Common intention.
Introduction: Section 34 of IPC talks on, Acts done by several persons in
furtherance of common intention - “When a criminal act is done by several persons
in furtherance of the common intention of all, each of such persons is liable for that
act in the same manner as if it were done by him alone”.
Principle of Joint Liability: In this provisions, a joint liability is created either
because the intention is common or the object is common to all the persons
forming a group alleged to have committed a crime. Under the Indian Penal Code ,
the criminal liability of a person is determined according to the manner in which he
becomes associated with the commission of crime. Normally a person may be a
participant in a crime in the following four ways:
(i) When he himself commits a crime;
(ii) When he shares in the commission of it;
(iii) When he, with a view to the commission of crime, sets some third agency
to work, that is , he makes some third party his own agent for committing
the crime;
(iv) When he helps the offender, after the commission of the crime in
screening him from justice .
The third and fourth are related to the law of abetment. The second shall be
what we discuss here as it deals with the principle of joint liability.
Section 34 does not say “ the common intention of all” nor does it is say “an
intention common to all” . Under Section 34, essence of liability is to be found
in existence of a common intention animating accused leading to doing of
criminal act in furtherance of such intention.
Ingredients : to attract the principle of joint liability under section 34, there
should be :
(i) Some Criminal act;
(ii) Criminal act done by more than one person;
(iii) Criminal act done by such persons in furtherance of the common intention of all
of them;
(iv) Common intention in the sense of a pre-arranged plan between such persons;
(v) Participation in some manner in the act constituting the offence by the persons
sought to be prosecuted;
(vi) Physical presence of the time of commission of crime of all persons; but physical
presence of all is not necessary in some cases.
Common intention implies a pre-arranged plan. Pre-arranged plan means prior
concert or prior meeting of minds. Criminal act must be done in concert
pursuant to the pre-arranged plan.
Absence of common Intention:
In the absence of common intention, the criminal liability of the persons in the
from differ according to the degree and extent of the individual's participation
in the act. The plan or consensus of mind to execute a crime need not be
eloborate.
 Further, there need not be any particular interval of time required for the
purpose of committing the act. The plan may be decided suddenly, but it is
essential that all the persons in the group must have consented to such plan.
In other words, each of the persons in the group must be aware of the act to be
committed and must have given his consent.
It was held in Sewa v. State of UP.,2008, that direct proof of common intention is
seldom available. It can only be inferred from circumstances appearing from
proved facts.
In the absence of common intention the criminal liability of the members of the
group might differ according to the degree and mode of the individual’s
participation in the act.
One of the earliest and leading case came before the court under
Section 34, under the principle of Joint Liability was Barendra Kumar Ghosh v.
King Emperor, 1925. This case is also known as the ‘Post Master Case’. In this
case, the accused Barendra with other three persons went to Shankaritola post
 office at about 3.30 pm on the 3rd August 1923 armed with firearms. The
accused stood outside the post office while the other three entered the post
office through the backdoor of office. They asked post master Amrita Lal Roy
to give the money which he was counting. When he refused, then others three
opened fire from the pistol and fled from the place.
As a result of which he died almost immediately. Seeing others running the
accused also ran away by air firing with his pistol. But he was chased and caught
by the post office assistant. He was charged with others under Section 302
(murder of post master) and Section 394 (causing hurt in doing robbery) with
Section 34 in common intention of all. He contended that he was only standing
guard outside the post office and he did not have the intention to kill the post
master. Calcutta High Court confirmed his conviction of murder under S 302
with Section 34. In the appeal before the Privy Council, Lord Sumner dismissed
the appeal against the conviction and held that – “criminal acts means that
unity of criminal behaviour which results in something for which an individual
would be responsible, if it were all done by himself alone, that is, in criminal
offence.”
In another popular case, Mehboob Shah v. Emperor, AIR 1943, the appellant
was charged for murder under section 302 read with section 34 IPC. The
facts, in brief are ,
Allah Dad, the deceased, and a few others were going to the Indus river in a
native boat to cut and collect reeds on the banks of the river. When they had
travelled a mile downstream, they saw Mohammed Shah, the father of Wali
Shah(who absconded and was never caught) bathing on he bank of the river.
Mohammed shah warned they against collecting reeds from land belonging to
him. Allah Dad, in spite of the protest, collected reeds from tht property.
While placing them in the boat, he ws accosted by one Qasim Shah, the
nephew of Mohammad Shah, who tried to remove the reeds from the boat.
He then caught the rope of the boat and pushed Allah Dad, whereupon the
latter picked up the bamboo pole used for propelling the boat, about 10 feet
long and six inches think, and struck Qasim Shah. Qasim Shah shouted for
help. Whereupon Wali Shah and Mahboob Shah appeared on the scene with
Loaded guns. On seeing them, Allah Dad and his friend , Hamidullah, tried to
escape by running. But they were prevented from doing so by Wali Shah and
Mahboob Shah . Wali Shah fired at Allah Dad who died almost instantly.
Mahhood Shah fired at Hamidullah causing him slight injuries.
The Trial court sentences Mahboob Shah to seven years rigorous imprisonment
for attempt to murder. But on appeal, the Lahore High Court convicted him
also for murder under section 302 read with Section 34 of the IPC for murder
of Allah Dad and sentenced him to death. Wali Shah, the real culprit, was
absconding . Mahboob Shah went in appeal to the Privy Council against the
conviction and the sentence of death passed against him by the Lahore High
court for the murder of Allah dad.
The Lordships of the Privy Council allowed the appeal and set aside his
conviction for murder since there was no evidence and there were no
circumstances from which it might be inferred that the appellant must have
been acting in concert with Wali Shah in pursuance of a concerted plan, when
he rushed with him to the rescue of Ghulam Qasim.
In Rishi Deo Pandey v. State of Uttar Pradesh, AIR 1955, two accused A and B
who were brothers, were seen standing near the cot of the victim who was
sleeping A, armed with a gandasa and B, with a lathi, when a hue and cry was
raised the two ran together. The medical evidence showed that the deceased
died of an incised wound on the neck, which was necessarily fatal. The
Supreme court held that, the Court of Sessions was justified in coming to the
conclusion that B shared with A, the common intention to cause death and
there was no reason to interfere with the conviction under Sections 302 read
with section 34, IPC.
In Sheoram Singh v. State of Uttar Pradesh, AIR, 1974, the SC held that common
intention may develop suddenly during the course of an occurrence, but still
unless there is cogent evidence and clear proof of such common intention, an
accused cannot be vicariously held guilty under Section 34 of IPC.
Common intention can be proved from the circumstances of a case which
illuminate the state of mind of the accused . In Khacheru Singh v. State of
Uttar Pradesh, AIR, 1956, several persons attacked a man with lathis when he
was Passing through a field. The man eluded them and they gave chase; on
overtaking him they once again attacked him. Held, these facts were
sufficient to prove that the accused had been actuated with the common
intention to assault the victim. Conviction under section 326 read with
section 34 was sustained.
 Distinction between Common Intention and Common Object
Common Intention(Section 34) Common object (Section 149)
1. The number of offenders must be 1. The number of offenders is five
more than one that is, two or or more.
more.
2. It does not create specific and 2. It creates a specific and
substantive offence, but only substantive offence, punishment
states a rule of evidence. can be imposed solely
Punishment cannot be imposed depending upon Section149.
solely upon Section 34.
3. The object under Section 149
3. The intention under Section 34 must be one of the objects
may be of any intention . mentioned under Section 141.
4. Prior meeting of minds is 4. Prior meeting of minds is not
necessary. necessary.
Common Intention Common Object
5. It requires that all the accused Mere membership of unlawful
must meet together before assembly at the time of
actual attack participated by commitment of crime is
all takes place. sufficient.

It is constructive liability.
6. It is joint liability.
7. Only offence committed in
furtherance of common Members of unlawful assembly
are not only labile to the acts
intention is punishable. done in prosecution of common
intention to be done with
unlawful object, but its
consequence offences.
 Chapter: Punishments
Question: Explain types of punishments to which offenders are liable
under IPC with special reference to death sentence.
The object of punishment is to protect society from mischievous and
undesirable elements by deterring potential offenders, by preventing
the actual offender from committing further offence and by reforming
and turning them into law-abiding citizens. It is also asserted that
respect for law grows largely out of opposition to those who violate
the law. The object of punishments has been very well summarised by
Manu, the Great Hindu law-giver in the following words:
Punishments governs all mankind; considers the punishment(danda)
as the perfection of justice.
The protection of society and security of person's life, liberty and
property is an essential function of the state. This could be achieved
through instrumentality of criminal law by imposing appropriate
sentence and stamping out criminal proclivity (tendency.)
Section 53 to 75 of IPC, enumerates various kinds of punishments to which
offenders are liable under the Penal Code. This section is not exhaustive in
so far as the kinds of punishments are concerned because some other
punishments may be imposed under some local and special law.
In State of Punjab v. Mann Singh, 1983, It was held that it was the duty of
the Court in every case to award a proper sentence having regard to the
nature of the offence, the manner in which it was committed and to all the
attendant circumstances.
While passing sentence the Court has to consider the totality of factors
bearing on the offence and the offender and award a punishment which
will promote effectively the punitive objective of the law deterrence and
rehabilitation. Sentencing is always a matter of judicial discretion subject
to any mandatory minimum prescribed by law.
Prof. H.L.A. Hart, defines punishment in terms of the following five elements
(i) It must involve pain or other consequences normally considered
unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be for an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human being other than
offender.
(v) It must be imposed and administered by an authority constituted by a
legal system against which the offence is committed purpose and function.
The nature of punishment can be drawn with reference to the following
characteristics.
(1) Punishments is a privation(evil, pain, disvalue).
(2) Punishments is coercive.
(3) Punishments is inflicted in the name of the State; it is authorised.
(4) Punishment presupposes rules, their violations and a more or less formal
determination of that , expressed in a judgment.
(5) Punishment is inflicted upon an offender who has committed a harm and
this presupposed a set of values by reference to which both the harm and
punishment are ethically significant.
(6) The extent or the type of punishment is in some defended way related to
the commission of a harm.
Theories of Punishments: there are five types of theories of pinishment they
are:
1. Deterrent theory: According to this theory, the object of punishment is
not only to prevent the wrong doer from doing a wrong a second time,
but also to make him an example to others who have criminal tendencies.
Salmond considered deterrent aspects of criminal justice to be the most
important for control of crime.
That is to say, the chief aim of the law of crime is to make the evil-doer
an example and a warning to all that are like-minded. The commission of
every offence should be made a bad bargain.
2. Preventive theory: Another object of punishment is prevention or
disablement. Offenders are disabled from repeating the crime by awarding
punishments, such as death, exile or forfeiture of an office, by putting the
criminal in jail, he is prevented from committing another crime.
The preventive theory concentrates o the prisoner and seeks to prevent
hi from offending again in the future. The death penalty and exile serve
the same purpose of disabling the offender.
3. Retributive theory: In primitive society punishment was mainly retributive .
The person wronged was allowed to have revenge against the wrongdoer.
The principle of “an eye for an eye”, “a tooth for a tooth”, “ a nail for nail”,
was the basis of criminal administration.
Retributive punishments gratifies the instinct or retaliation , which exists
not merely in the individual wronged, but also in society at large. In
modern times the idea of private revenge has been forsaken and the State
has come forward to effect revenge in place of the private individual.
4. Reformative Theory: According to the reformative theory, the object of
punishment is the reformation of criminals. It is maintained that
punishment tends to reform criminals and that it accomplishes this by
instilling in them a fear of repetition of the punishment a conviction tht
crime does not pay, or by braking habits that the criminals have formed,
especially if the penalty is a long period of imprisonment, which gives the
prisoner no opportunity for improvement. Even if an offender commits a
crime under certain circumstances, he does not cease to be a human being.
The circumstances under which he committed the crime may not occur
again. The object of the punishment should be to reform the offender.
In other words the purpose of this theory is, the essence of punishment is to
reform the character of the wrong doer by making him do what is right and not
to do what is wrong. The legitimate object of punishment is to reform, educate
and discipline the criminal . In this theory Crime is treated as disease which
needs to be cured and not to be punished.
4. Expiatory Theory: this theory is also known as theory of penance.
According to this theory, punishment is necessary for the purification of the
offender. It is a kind of expiation or penance for the misdeed of a person .
 In modern times expiation theory is accepted in a modified form and is
considered by some to be a part of the retributive theory. According to Salmond,
“to suffer punishment is to pay a debt due to the law that has been violated”.
One more theory added in the modern times are:
Multiple Approach Theory: In fact, a perfect system of criminal justice could
never be based on any single theory of justice. It would have to be a combination
of all. Every theory has its own merits and every effort should be made to extract
the good points of each and integrate it so that best of all could be achieved.
Kinds of punishments Liable under the provisions of the Indian Penal Code. 1860:
According to Section 53 of the Indian Penal Code , the punishments to which
offender are liable under the provisions of the Code are:
1. Death(Capital Punishment).
2. Imprisonment for life.
3. Imprisonment, which is of two descriptions , namely:
(i) Rigorous.
ii) Simple.
4. Forfeiture of Property.
5. Fine.
1. Death sentence or capital punishment: Death sentence is the most serious
kinds of punishment. Some countries abolished it. It is awarded in India in
certain exceptional cases. To name a few:
(i) waging or attempting to wage war or abetting the waging of war against the
government of India-section 121.
(ii) Abetment of mutiny actual committed - Section 132.
(iii) Giving , fabricating false evidence upon which an innocent person suffers death
– Section 194.
(iv) Murder Section – 302
(v) Abetment of suicide of a child, an insane or intoxicated person Section-305
(vi) Attempt to murder by a person under sentence of imprisonment for life, if
hurt is caused. Section: Section 307.
(i) Punishment for cause death or resulting in persistent vegetative
state of victim : Section 376A.
(ii) Punishments for repeat offenders.
(iii) Dacoity accompanied with murder: Section 396.
The law confers on the Judge wide discretionary power in the
matter of passing a sentence. However, under section 303 of the IPC,
the Judge has no such discretionary power, since Section 303
prescribes capital sentence compulsorily in case of a life imprisonment
convict, who is found guilty of committing murder, while undergoing
the sentence of imprisonment for life. But , Section 303 ,was struck
down as unconstitutional by the Supreme Court in Muthu v. State of
Punjab, AIR 1983.
While death penalty is supported by one section of society , but the other
totally disapprove the idea of capital punishment, may be the reason perhaps ,
recent trends in public sentiments against capital punishment represent the
broader realisation that correction is more important to society than
punishment.
In Rajendra Prasad v. State of UP., 1979, the Supreme Court has observed that
capital sentence may be awarded where survival of the society is in danger.
Death penalty may be awarded in case of planned motivation persons guilty of
adulteration etc., hardened murderer beyond rehabilitation or where officer of
law are killed by designers of murder. Further special reasons stated by the
court in awarding death penalty must relate to criminal as well and not to
crime alone.
In Jagmohan Singh vs. State of Uttar Pradesh AIR, 1973, the five judge bench
of the Supreme Court, by a unanimous verdict, upheld the constitutional
validity of death penalty held that capital punishment was not violate of
Articles 14, 19 and 21.
 In this case the validity of death sentence was challenged on the ground that it
was violate of Articles 19 and 21 because it did not provide any procedure. It
was contended that the procedure prescribed under Cr. P.C. was confined only to
findings of guilt and not awarding death sentence. The Supreme Court held that
the choice of death sentence is done in accordance with the procedure
established by law. It was observed that the judge makes the choice between
capital sentence or imprisonment of life on the basis of circumstances and facts
and nature of crime brought on record during trial.
Further, The Supreme Court in Machhi Singh vs. State of Punjab, AIR 1983, laid
down the broad outlines of the circumstances when death sentence should be
imposed. Justice Thakkar speaking for the Court held that five categories of
cases may be regarded as rarest of rare cases deserving extreme penalty. They
are:
1. Manner of Commission of murder – When the murder is committed in an
extremely brutal manner so as to arouse intense and extreme indignation in
the community, for instance, when the house of the victim is set a flame to
roast him alive, when the body is cut to pieces or the victim is subjected to
inhuman torture.
2. Motive – When the murder is committed for a motive which evinces
depravity and meanness, example., a hired assassin, a cold blooded murder to
inherit property, or gain control over property of a ward, or a murder
committed for betrayal of the motherland.
3. Anti-social or socially abhorrent nature of the crime – where a scheduled
caste or minority community person is murdered in circumstances which
arouse: social wrath; or bride burning for dowry, or for remarriage.
4. Magnitude of the Crime – Crimes of enormous proportion, like multiple
murders of a family or persons of a particular caste, community or locality.
5. Personality of victim of murder.
In a very renowned case Bachan Singh v. State of punjab, 1980, the Supreme
Court while upholding the validity of the death penalty expressed the opinion
That a real and abiding concern for the dignity of human life postulates resistance
to taking a life through laws instrumentality. That ought not to be done save in the
rarest of rare cases, , when the alternative option is unquestionably foreclosed.
The aggravating circumstances which justify the award of death penalty have
been summed up as follows:
(a) If the murder has been committed after previous planning and involves
extreme brutality; or
(b) If the murder involves exceptional depravity; or
( c) If the murder is of a member of any of the armed forces of the Union or of a
member of any police force or of any public servant and was committed –
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member
or public servant in the lawful discharge of his duty as such member or public
servant as the case may be, or has ceased to be such member or public servant.
(d) If the murder is of a person who acted in the lawful discharge of his duty
under section 43 of Cr. P.C, 1973, or who had rendered an assistance to a
magistrate or a police officer demanding his aid or requesting his assistance
under Section 37 and 129 of the Code.
2. Imprisonment for life: the sentence of imprisonment for life is provided in
about fifty offences under the IPC . To name a few, waging war, Conspiracy,
Collection of arms , with the intention of waging war against the Government of
India, Sedition Abetment of mutiny, Perjury in a capital crime. Murder , Culpable
homicide, Abetment of suicide by a minor or insane person, Attempt to murder
with hurt, Trade in slaves, rape, Gang Rape, Murder in docoity, Criminal breach of
trust by public servant, banker merchant agent etc, Grievous Hurt committed in
house breaking, Counterfeiting device or mark for forgery , Manufacturing seal
with intent to commit forgery, etc.,
In ordinary connotation imprisonment for life means imprisonment for
whole of the remaining period of the convicted person’s natural life. But in
 practice, it is not so. However, the life convict is not entitled to automatic
release on completion of fourteen years imprisonment unless the government
passes an order remitting the balance of his sentence. Section 55 of the IPC
empowers the appropriate government to commute the period of life
imprisonment.
The Court in Swamy Sharaddananda alias Murli Manohar Mishra v. State of
Karnataka, AIR , 2008, made it explicitly clear that a convict punished with life
imprisonment meant imprisonment till his last breath. The Court, however,
noted that once the judgment passing life imprisonment is pronounced , the
matter passes into the hands of the executive and is governed by different
provisions of law and there is no guarantee that at the sentence awarded to
the convict by the Court after considerable deliberation would be carried out in
actually the remissions granted by the executive to a life convict virtually
reduce the sentence to not more than 14 years which obviously frustrates the
cause of justice. The Court in this case directed that the accused shall not be
released from prison till the rest of his life.
 The Supreme Court in Mohd. Munna V. Union of India, AIR, 2005,
reiterated that in the absence of an order or remission formally passed by the
appropriate Government, there is no provision in IPC or Cr.P.C under which a
sentence of life imprisonment could be treated as for a term of 14 years or 20
years and a life convict cannot claim remission as a matter of right.
3. Imprisonment: Imprisonment is defined as the deprivation of the liberty of
another without his consent. Imprisonment is no other thing but the restraint
of a man’s liberty, whether it be in the open field, or in the stocks or cage or in
the street or in the man’s own house, in all these places the party so restrained
is said to be a prisoner so long as he has no liberty freely to go at all times to all
places at his will.
Imprisonment is of following types:
(a) Rigorous Imprisonment: In the case of rigorous imprisonment, the offender
is put to hard labour such a grinding corn, digging earth, drawing water, cutting
fire-wood, etc., according to 57 of IPC, the maximum rigorous imprisonment
 that can be awarded for an offence is fourteen years. According to section
57, the lowest term actually named for a given offence is twenty-four
hours. The minimum is unlimited. To name a few, the following offences
mentioned in the IPC are punishable also rigorous imprisonment.
(i) Personating a public c servant –Section 170.
(ii) Punishment for bribery –Section 171-E.
(iii) Punishment of false evidence.
(iv) Causing miscarriage ; Section 312.
(v) Giving false information respect to an offence committed: Section –
203, etc.
(c) Simple Imprisonment: In case of simple imprisonment , the offender is
confined to jail and is not put to any kind of work. The following are the
few examples for offences punishable with simple imprisonment only:
(i) Pubic servant unlawfully engaging in trade.
(i) A person absconding to avoid service of summons.
(ii) Intentional omission to produce a document to a public servant by a person
legally bound to produce such document.
(iii) Refusing to take oath or refusing to anger to a public servant authorised to
question, etc.,
(iv) Intentional insult or interruption to a public servant sitting in any stage of a
judicial proceeding .
(v) Continuation of nuisance after injunction to discontinue.
(vi) Wrongful restraint .
(vii)Defamation, etc,.
As per Section 60 of the IPC, in every case in which an offender is punishable
with imprisonment, which may be either description , it shall be competent to
the court to direct in the sentence that such imprisonment shall be wholly
rigorous, or that such imprisonment shall be wholly simple , or that any part of
such imprisonment shall be rigorous and the rest simple.
Commutation for death sentence or sentences: According IPC, in every case in
which sentence of death or any sentence shall have been passed, the appropriate
government may, without the consent of the offender , commute the punishment
for any other punishment provided by the Court.
Solitary Confinement: (for short notes): According to section 73 of IPC, solitary
confinement is isolation of he prisoner from human intercourse and society. The
sentence of solitary confinement is a mode of undergoing the sentence of
rigorous imprisonment. It is not a substantive sentence by itself. It causes a
feeling of oppression due to the gregarious instincts of man. Prolonged isolation of
the prisoner from human communion becomes intolerable and often leads to
mental derangement. When not unduly prolonged, it gives him time to reflect
upon the utility of society which has acts were calculated to destroy.
The sentence of solitary confinement is reserved for hardened criminals and as
punishment for atrocity or brutality. Solitary confinement may be ordered even in
a case tried summarily provide the offender is sentenced to rigorous
imprisonment.
The following are some restrictions in imposing solitary confinement:
(i) Solitary confinement should not exceed three months of the whole term of
imprisonment;
(ii) It cannot be awarded where imprisonment is not part of the substantive
sentence;
(iii) It cannot be awarded where imprisonment is in lieu of fine;
(iv) It cannot be awarded for the whole term of imprisonment;

According to Section 73 of the IPC, whenever any person is convicted of an

offence for which under this Code, the Court has power to sentence him to
rigorous imprisonment, the Court may, by its sentence, order that the offender
shall be kept in solitary confinement for any portion or portions of the
imprisonment to which he sentences, not exceeding three months in the whole,
according to the following scale , that is to say:
• A time not exceeding one month, if the term of imprisonment shall not exceed
six months;
• A time not exceeding two months , if the term of imprisonment shall exceed
six months and shall not exceed one year;
• A time not exceeding three months if the term of imprisonment shall as exceed
one year.
As per section 74 of the IPC, in executing a sentence of solitary confinement,
such confinement shall in no case exceed fourteen days at a time, with intervals
between the periods of solitary confinement.
Commutation of Sentences: Commute means cutting down or reducing. The
following sentences may be reduced only by the Appropriate Government:
1. In case of sentences of death, it may be reduced to any form of punishment,
but the consent of the offender is not needed for such commutation. Such
power of commutation in the case of death sentence lies with the Central
Government.
2. In a case of sentence of imprisonment for life, may be commuted to simple
imprisonment or rigorous imprisonment, for not more than 14 years.
III Forfeiture of Property:
Forfeiture of property means taking away the property of the criminal by the
Sate as punishment. The punishment of absolute forfeiture of all property of
the offenders is now abolished, Section 61 to 22 of IPC deals with such
forfeiture are repealed by Act XVI of Amendment in 1921.
VI Fine: is derived from the word ‘finis’ and is so called because its payment
puts an end to the offence for which it is imposed. A fine is a pecuniary
punishment imposed by a lawful tribunal upon a person convicted of crime or
misdemeanour. Fine is a sum on money ordered by the Court in exercise of
criminal jurisdiction to pay as a punishment for an offence . Fine may be a sole
punishment or alternative or it may be in addition to imprisonment. It is levied
for only simple offences.
According to Section 63 of the IPC , where no sum is expressed to which a fine
may extent, the amount. Of fine to which the offender is liable is unlimited, but
shall not be excessive.
Good Faith(Section 52) for short notes:
Good Faith is defined in Section 52 of the IPC. It says “nothing is said to be done or
believed in good faith which is done or believed without due care and attention”.
the definition of good faith in this section is a negative one. It says that an act is said
to be done in good faith, only if it is done with due care and attention which expected
from a reasonable or prudent man.
Good faith depends upon 3 factors.
1. The nature of the act done by the accused.
2. The magnitude and importance of the act done by the accused.
3. The facility a person has for the exercise of care and attention.
4. the question of good faith must be considered with reference to the position of the
person whose good faith is in question and the circumstances under which he acted.
The law does not expect the same degree of care and attention from all person's
irrespective of the position they occupy. It varies to different cases and is considered
with reference to the general circumstances and the capacity and intelligence of the
accused . Due care and attention implies genuine effort to reach the truth and not
Who is a Public Servant: (Short Notes) :
Section 14 of IPC, defines the word Servant of Government” , It denotes
any officer or servant continued, appointed or employed in India by or under
the authority of Government. the words “Public Servant” denotes a person
falling under any of the descriptions hereinafter following namely;
1. Every Judge including any person empowered by law to discharge,
whether by himself or as a member of any body of persons any
adjudicatory functions;
2. Every Officer of a Court of Justice, whose duty it is , as such officer, to
investigate or report on any matter of law.
3. Every juryman, assessor, or member of a panchayat assisting a Court of
Justice or public servant;
4. Every arbitrator or other person to whom any cause or matter has been
referred for decision or report by any Court of Justice or by any other
competent public authority;
5. Every arbitrator or other person to whom any cause or matter has bee
referred for decision or report by any Court of Justice
6. Every person who holds any office by virtue of which he is empowered to
place or keep any person in confinement.
7. Every officer of the Government whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to
justice or to protect the public health, safety or convenience.
8. Every officer whose duty it is, as such officer, to take receive, keep or
expend any property on behalf of the Government. Or to make any
survey, assessment or contract on behalf of the Government.
9. Every person who holds any office by virtue of which he is empowered to
prepare, publish, maintain or revise an electoral roll or to conduct an
election or part of tan election.
10. Every person, in the service or pay of the Government or remunerated by
fees or commission for the performance of any public duty by the
 Government. Or in the service or pay of local authority, a corporation established by or
under a Central, Provincial or State Act or a Government Company .
Following people are the examples of Public Servant:
i. The managing director of a public sector corporation
ii. Chief Minister
iii. Minister is a public servant
iv. A Municipal Commissioner .
v. The Speaker of a Legislative Assembly,
Etc,.
The following are not considered as Public Servants as per Court Judgments:
i. MLA is not a public Servant.
ii. A Municipal councillor
iii. A Arbitrator.
iv. A Government Medical Officer.
v. The President and Secretary of a co-operative society are not public servants .
 UNIT II
Contents: General Exceptions : section 76 to 106, Abetment : Sections 107 –
120; Criminal Conspiracy: Section 120A & 120B; offences against State;
Sections 121 -130; Offences against public tranquillity; Sections 141 -160;
difference between Sections 34 and 149 - Offences relating to election;
Contempt of lawful authority and Public Servants(Brief Discussion); Sections
172 -190.

False evidence. Section 191 -197, 208-212: Offences relating to coins and
Government Stamps: Sections 230 to 240 & 263A; Public Nuisance &
Private Nuisance: Offences relating to religion: Section 295 -298
Introduction :
As a general principal of law, man is presumed to know the nature and
consequences of his act and is, therefor ,held responsible for it. However,
there are certain exceptions to this general rule, wherein a person may be
excused of crim. In some cases, a person may be entirely excused from
criminal responsibility by virtue of being head of a sovereign State or being a
representative of such a State , or of the United Nations Organisations and so
on.
Others may be excused from the consequences of punishment by reason of
the absence of the requisite mens rea necessary for the commission of
particular offence. This is based on the well-known maxim, actus non facit
reum nisi mens sit rea, that is, the act itself does not make a man guilty
unless his intention are so, such cases have been discussed elaborately under
Section 76 to 106. these are called ‘Exceptions’. These exceptions not only
limited to the offences under the Penal Code, but it extends to the offences
under the special or local laws as well.
There are 31 sections under general exceptions , wherein for acts committed,
there is no punishment, as such acts are either excused or justified which may
be grouped into eight heads.
(i) Mistake of fact and mistake of law (Section 76 and 79)
(ii) Privileged Acts and Judicial Acts)(Section 77 and 78)
(iii) Accidental Acts (Section 80)
(iv) Necessity(Section 81)
(v) Incapability to commit a crime(Section 82 to 86)
(vi) Acts done with consent (Section 87-90); or without consent(Section 92)
(vii) Triviality (Section 9)and
(viii)Private defence (Section 96 -106).
The exceptions provide in the chapter may be grouped into two categories,
namely:
(i) Excusable exceptions , and
(ii) Justifiable exceptions.
I. Mistake of Fact and Mistake of Law
Questions : 1. Explain the defence of ‘mistake of fact’ in the Indian
context.
2. Write a short notes on Mistake of Law and Mistake of fact.
A mistake means a factual error. An opinion, judgement, or a belief which is
erroneous by reference to the real facts . It can divided into two types:
1. Mistake of fact and
2. Mistake of Law:
The essential conditions of criminal responsibility are :
(a) Free will;
(b) Intelligence to distinguish between good and evil;
( c) knowledge of facts upon which the good and evil of an act may depend;
The distinction between good and evil necessarily depends on the knowledge of
facts. It is because of this that ignorance or mistake of such fact as is necessary to
distinguish between right and wrong , is admitted as a good ground of exemption
from criminal liability. But in order to be excuse the ignorance or mistake of fact
should not be the result of carelessness or negligence.
Mistake of Fact: According to Section 76, Acts done by a person bound or by
mistake of fact believing himself bound, by law: “Nothing is an offence which is
done by a person who is, or who by reason of a mistake of fact and not by reason
of a mistake of law in good faith believes himself to be bound by law to do it”.
Meaning of Mistake : Ignorantia facti excusat, ignorantia legis neminem excusat,
is a well known maxim of criminal law. It means ignorance of fact is an excuse,
ignorance of law is no excuse. In means a factual error. “All error consists in
taking for real what is mere appearance.
Thus under IPC, both mistake of fact and ignorance of fact are treated alike and
they are accepted as defence against criminal liability.
Mistake of fact to be an excuse must be mistake in respect of a material fact, a fact
essential to constitute a particular offence it is only such ignorance that negatives
the mens rea necessary to constitute the offence and as pointed by Baron Parke
Accepted by Huda, “the guilt of the accused must depend on circumstances as
they appear to him. “Mistake according to Russel may be admitted as a defence
provided:
(1) That the state of things believed to exist would, it true, have justified the act
done;
(2) That the mistake must be reasonable;
(3) That the mistake must relate to fact and not to law.
One who sets up mistake as his defence must establish the existence or the
probability of the existence of that attitude of his mind which he asserts to have
been at the time of commission of crime. In other words , what accused pleads
to have misled him, would have misled as ‘reasonable man’. That is, what
accused believed, must be bonafide and in good faith.
The Essentials of mistake is contained in Section 76 to 79 of the Indian Penal
Code. They are:
(i) An act done by a person who is bound by law in doing that or
(ii) An act done by a person who believes himself to be bound by law in doing
that;
(iii) The belief must be by reasons for a mistake of fact and not by reason of a
mistake of law, that is., mistake must relate to fact and not to law;
(iv) The belief must be a bona fide belief in goods faith, that is., he must believe in
good faith
If the above conditions are fulfilled a, a mistake may successfully be pleaded in
defence to any prosecution for any offence.
There are two exceptions to the maxim ‘ignorantia facti doth excuse’
1. No one is allowed to lead ignorance of fact, when responsible inquiry would
have elicited the true facts. For example, when a person marries on an honest
belief that his previous marriage has been dissolved by a decree of divorce ,
whereas the decree of divorce has not been granted, he will be guilty of
bigamy. Here mistake will not save the accused because the second marriage.
2. Mistake of fact is not accepted as a plea at all, when the act is penalised by a
Selling of adulterated foodstuffs has been made an offence under he
Prevention of Food Adulteration Act, 1954. In case of any prosecution, it shall
be no defence that the vendor was ignorant of the nature, substance or
quality of the food sold by him.
Illustration for mistake of fact:
1. A , a soldier fires on a mob by the order of his superior officer in conformity
with the commands of the law. A has committed no offence.
2. A, an officer of a Court of Justice, being ordered by that court to arrest, Y,
and after due enquiry, believing Z to be Y, arrests Z. A has committed no
offence.
Case Laws:
R v. Prince 1975: In this case, the accused was charged of unlawfully taking an
unmarried girl under the age of 16 years out of possession and against the will
of father . It was found tht the accused bona fide and reasonably believed the
girl to be older than 16 years. The accused’s mistaken belief about the age of
the girl was held not o be a good defence to an indictment for abduction ,
because he intended to do and did a wrongful or immoral act and not an
innocent act. Section 55 of the offence against the Persons’ Act 1857, which
made the offence of abduction and intended to penalise the abduction without
proof of any guilty intention on the apart of the wrong-doer.
In R v. Tolson, 1889, the accused was convicted of bigamy . She believed in
good faith and on reasonable grounds that her husband died. It was held that a
bona fide belief on reasonable grounds in he death of the husband at the time
of the second marriage afforded a good defence to the charge of bigamy.
In Sheras v. Dr. Rutzen, 1895, a statute prohibited a licensed dealer of liquor
from supplying liquor to a police constable while on duty and the dealer
supplied liquor to a constable on a bona fide belief that he was off duty. He
was held to have committed no offence.
Mistake is a defence, because when an act is done by reason of mistake of fact,
mens rea necessary to constitute the crime is absent or is negative.
In Rex v. Levett, 1688, the defendant was awakened in the night by strange noises in his
house, thinking he was attacking a burglar , he ran his sword through a cabinet, where
the intruder was hiding and killed a friend of his servant present by the latter’s
invitation. It was held not to be manslaughter. “for he did it ignorantly without
intention of hurt to the deceased”.
In Gopalia Kallaiya , 1923, a police officer arrested the complainant under a warrant
believing in good faith that he was the person to arrested. The complainant brought an
action for wrongful confinement. It was held that the police officer was not guilty
because he was protected by this section.
Section 76 deals with two classes of cases wherein a person is excused from criminal
liability on the ground of mistake of fact:
1. Obedience to order of Superior Officer: the subordinates need not blindly obey the
order of their superiors. The maxim ‘respondent superior’ has no application to such a
case. However, the plea of obedience to an illegal orders can be taken into
consideration, only in mitigation of punishment. But cannot be ed as a complete
defence.
Where a constables fires upon a lawful assembly under the orders of his superior, he
shall be liable and cannot claim benefit of this section, because no one is obliged to
obey illegal order of he superior. If the order of the superior is justified and is, therefore
lawful no further question can arise as to whether the subordinate servants who
acted in obedience to that order, believed or did not believe that order to lawful.
Such an inquiry becomes necessary only, when the order of the superior officer
which is pleaded as a defence is found not to be conformity with the commands
of the law. In such an eventuality no occasion arises for applying provisions of
section 76.
2. Belief in good faith or reasonableness of the error: An actual mistake of fact is
not sufficient. The apprehension of danger must be bona fide and
reasonable. Thus it is not every mistake that furnishes a defence, mistake
must be reasonable and must have been made in good faith and there must
be evidence to prove that. The Expression “good faith” is interpreted with
reference to section 52 of the IPC.
II Mistake of Law: Mistake of law means mistake as to the existence or
otherwise of any law on particular subject as well as mistake as to what law is.
The words “by reason of mistake of fact and not be reason of mistake of law”
under Section 76 of the IPC, denotes the paraphrasing of the latin maxim
“ignorantia facti excusat ignorant juris non excusat”, which means ‘ignorance of
fact excuses, ignorance of law does not excuse’. This maxim is widely accepted
in most parts of the world. Section 76 of IPC is an incorporation that rule in
our law. This rule seems to be based on anther rule of evidence that “ every
man is presumed to know the law”. ‘Ignorantia corumquoe scire tenetur non
excusat”, which means, ‘that ignorance of those things which one is bound to
know does not excuse’. If ignorance of the law were a defence, it would be
open to an accused charged of a crime to allege that, he was not aware of the
law on the point and it would be quite impossible for the prosecution to prove
that the accused was cognizant of the law in question. The result would be
the acquittal of accused persons in all the cases, rendering the administration
of justice to fail.
Another important justification for not allowing a mistake of law as defence
apparently is that the operation of a provision of the law is intended to be
independent of its being known to everybody. If this were not so, great
difficulty would be experienced in the enforcement of the law and would lead
to injustice.
Section 76 and Section 79 of the Code have expressly excluded mistake of law
from the purview of the exception. The maxim is applied in a strict sense.
 however, since no minimum punishment is provided in the Code, as a general rule the
courts have passed considerably lenient sentence, when a non negligent inviable
mistake of law has occurred.
It is also important here to note the following points:
Ignorance of Law by Foreigners: the Maxim ignorantia juris non excusat in its
application to criminal offences admits no exception. Even a foreigner is not
exempted who cannot reasonably be supposed to know the law.
The plea of act of State: It will be available to persons carrying out an act of State in
the following cases:
(1) If the defendant had authority to act on behalf of the State in the matter, and
(2) If in so acting, he was professing to act as a matter of policy, outside the law and
not as a matter of right within the law.
(3) Distinction between mistake of fact and mistake of law:
Distinction between mistake of fact and mistake of law can be well illustrated by he
following example:
(1) A , a police officer, who has the right to arrest a person committing a cognizable
offence, if he arrest B, mistakenly thinking tht he has committed murder, when in
fact he killed a dacoit in self defence. A is not liable for
committing the offence of wrongful confinement, his mistake being one of fact.
On the other hand, if the police officer arrests a person for committing an
assault, which he wrongfully considers a cognizable offence, whereas it is not
cognizable in which he cannot arrest a person he is liable for wrongful
confinement, his mistake being one of law for which he cannot be excused.
II. Hence to conclude, the following persons are immune from Criminal Liability:
the following person are immune from criminal liability. They are:
1. Act of judge, when acting judicially: According to Section 77, “nothing is an
offence which is done by a judge when acting judicially in the exercise of any
person which is , or which in good faith, he believes to be, given to be, given
to him by law”.
This section provides protection to a Judge while acting judicially. It
affords protection toa Judge in those cases in which he proceeds irregularly in the
exercise of a power given to him by law and also in cases where he in good faith
exceeds his jurisdiction and has no lawful powers. The exception under this
section is in respect of a criminal proceeding only.
2. Act done pursuant to the Judgment or order of Court: According to Section 78
Of the Code, “Nothing which is done in pursuance of, or which is warranted by
the Judgement or order of a Court of Justice, if done whilst such judgment or
order remains in force, is an offence, notwithstanding the Court may have had
no jurisdiction to pass such judgment or order, provided the person doing the
act in good faith believes that the Court had such jurisdiction.
3. Acts done by a person justified or by mistake of fact believing himself
justified by law: According to section 79 , “Nothing is an offence which is
done by any person who is justified by law, or who by reason of a mistake
of fact and not by reason of a mistake of a law, in good faith, believes
himself to be justified by law, in doing it.
Illustration: A sees Z commit what appears to A to be a murder. A, in the
exercise, to the best of his judgment exerted in good faith , of the power which
the law gives to all persons of apprehending murderers in the fact, seizes Z, in
order to bring Z before the proper authorities. A has committed no offence,
though it may turn out that Z was acting in self defence.
Ingredients of this Section 79:
(1) An act done by a person under a mistake of fact.
(2) Mistake must relate to fact and not to law.
(3) Mistake must be committed in good faith.
(4) The person doing the act is either justified by law or believes himself to be
justified by law in dong an act.
Distinction between Section 76 and Section 79: Section 76 deals with cases
where by reason of mistake of a fact the person under a mistake considers
himself bound by law to act in a particular way, although on the true state of
facts his act is an offence.
Section 79, on the other hand, deals with cases where by reason of a
mistake of fact the persons under such mistake considers himself simply justified
by law act in a particular way.
The words used in Section 76 is bound by law and in Section 79 is justified by
law, that is under section 76 there is legal compulsion and under Section 79,
there is a legal justification.
Question: Write a short notes on “Accidents”.
III. Accidents: Sections 80 of IPC, talks about Accident in doing a lawful act-
“Nothing is an offence which is done by accident or misfortune and without any
criminal intention or knowledge in the doing of a lawful act in a lawful manner
by lawful means and with proper care and caution”.
Ingredients: ingredients of Section 80 are:
(1) The act must be an accident or misfortune;
(2) The act must not be done with any criminal intention or knowledge;
(3) The accident must be the outcome of a lawful act done in lawful manner by
lawful means;
(4) The act must have been done with proper care and causation;
Illustration:
A is at work with a hatchet , the head flies off and kills a man who is standing
by. Here, if there was no want of proper caution on the part of A ,his act is
excusable and not an offence.
Meaning: section 80 of the IPC , is based on the principle that no act is per se
criminal unless the actor did it with criminal intent. To constitute a crime,
intent and the act of the wrong doer must concur. Accidents does not mean
a happening by chance, but such happening must be unintentional and
unexpected. It means an undersigned happening out of the ordinary
courses which not man of ordinary prudent could anticipate or provide
against.
Stephen, author of Digest of Criminal law, observes that, “ An effect is said to
be accident when the act by which it is caused is not done with intention of
causing it and when its occurrence as a consequence of such act is not so
probable that a person of ordinary prudence ought under the circumstances
in which it done to take reasonable precaution against it”.
Hence, an injury is said to be caused accidentally when it is neither wilfully
not negligently caused. Stephen also gives illustrations to support the point:
(1) A, a workman throws snow from a roof giving proper warning. A
passenger is killed. Such a death is accidental.
2. A turns B a trespasser, out of his house, using no more force than is
necessary for the purpose. B resists but without striking A they fall in
struggle and B is killed. Death is accidental.
3. A takes up a gun, not knowing whether it is loaded or no points it in sport at
B and pulls the trigger. B is shot dead. Such a death is not accidental. If A
had reason to believe that the gun was not loaded, the death would have
been accidental although he had not used every possible precaution to
ascertain whether gun was loaded or not.
Lawful act done in lawful manner by lawful means: In Jageshwar v. Emperor
AIR, 1924, the accused was beating a person with his fists, when the latter’s wife
with a two months child on her shoulder interfered, the accused hit the woman
but the blow struck the child on his head. The baby died from the effects of the
blow. It was held that although the child was hit by accident, the accused, was
not doing a lawful act in a lawful manner by lawful means and therefore the
defence under section 80, IPC could not be availed of by him.
In Sukdev Singh v. Delhi State (Government of NCT of Delhi), AIR, 2003.
In the present case the factual position shows that the accused who was
posted as Personal Security Officer, deliberately used the gun ,of course
during the scuffle and the accused appellant did not say that the bullet
went off in the process of struggle and snatching, but the accused
specifically told that as the diseased tried to snatch the pistol, he fired at
him. Hence it was not a case of accident and therefore he would not be
entitled to get the benefit of accident under Section 80, IPC.
In Bhupendrasinh A Chaudasama v. State of Gujarath, AIR, 1998, the
Supreme Court observed that the accused did not disclose to any
prosecution witness that he was unable to identify his immediate superior
and he thought him to be a miscreant and fired to protect valve tower. The
right of private defence was far from contemplation of accused when he
opened fire at the deceased, hence accused is not entitled even to
restricted right to private defence under section 104 IPC.
The defence contributive negligence is no defence to a charge in criminal
law. In one of the cases it was held that, if a motor driver caused death by
His own omission or negligence, the fact that the deceased was also negligent and
contributed to the accident does not afford a defence to the driver.
In State of Orissa v. Khora Ghasi, 1978, A caused death of D by shooting arrow under
the bonafide belief that he was shooting that arrow at a bear which had entered
into his field and was destroying, his maize crop. Death was held to be the
consequence of accident.
The Supreme Court in Shankar Bhadolkar v. State if Maharashtra, AIR 2004, declined
to allow the protection of Section 80 that is, defence of accident , to the accused
who picked up a gun, unlocked it and loaded it with cartridges and shot it from a
close range at one of the invitees for dinner at his place, causing death. The Court
held that the accused failed to exercise due care and caution and therefore, he was
not entitled to the benefit of defence under Section 80 of IPC.
Problem: 1. A is carried off by a tiger. B fires at the tiger knowing that the short
may kill A. A is killed. Has B committed any offence?
2. A is at work with a hatchet, the head flies off and kills man who is standing by.
Decide the liability of A.
Question: Write a Short Notes on “Necessity”
IV. Section 81: Act likely to cause harm, but done without criminal intent and to
prevent other Harm: “Nothing is an offence merely by reason of its being done with
the knowledge that it is likely to cause harm, if it be done without an criminal intention
to cause harm, and in good faith for the purpose of preventing or avoiding other harm
to person or property”.
Ingredients: The Indian Law of defence of necessity as contained in section 81 IPC may
be analysed as follows:
1. The act constituting the offence is known by the wrong-doer to be likely to cause
harm, but it is done without any criminal intention to cause harm;
2. The act must have been done in good faith
3. The act must have also been done for the purpose of preventing or avoiding other
harm;
4. The harm aimed to be prevented or avoided may relate to person or property.
It is a question of fact in such a case whether harm to be prevented or avoided was of
such a nature and so imminent as to justify or excuse the risk of doing the act with the
knowledge that was likely to cause harm.
Section 81 of the Code grants immunity to man from criminal charge with
respect to acts committed under compelling circumstances forced by
necessity.
An act which would otherwise be a crime may in some cases be excused
if the person accused can show that it was done only in order to avoid
consequences which could not other wise be avoided, and which, if they
had followed, would have inflicted upon him or upon other whom he was
bound to protect, inevitable and irreparable evil. Section 81 excuses the
doing of an evil so that good may result. It permits the infliction of a
lesser evil in order to prevent greater evil . It is intended to give legislative
sanction to the principle that where on a sudden and extreme emergency,
one or other of the two evils is inevitable, it is lawful so to direct events
that the smaller only shall occur.
Illustrations:
(a) A, the captains of a steam vessel, suddenly and without any fault or
negligence on his part, finds himself in such a position that, before he can
stop his vessel, he must inevitably run down a boat B, with twenty or
Thirty passengers on board, unless he changes the course of his vessel and
that, by changing his course he must incur risk or running down a boat C
with only two passengers on board, which he may possibly clear. here., if A
alter his course without any intention to run down the boat C and in good
faith for the purpose of avoiding the danger to the passengers in the boat B,
he is not guilty of an offence, though he may run down the Boat C by doing
an act which he knew was likely to cause that effect, if it be found as a matter
of fact that the danger which he intended to avoid was such as to excuse him
in incurring the risk of running down the boat C.
(b) A, in a great fire, pulls down houses in order to prevent the conflagration
from spreading. He does this with the intention in good faith of saving
human life or property. Here, if it be found that the harm to be prevented
was of such a nature and so imminent as to excuse A’s act, A is not guilty
of the offence.
Whenever necessity forces a man to do an illegal act, he will be justified
because no man can be guilty of a crime without the will and intention of the
mind thus the law of necessity dispenses with things which otherwise are not
lawful to be done.
To avail the defence of this section, following points have to be proved:
1. Without any Criminal intention: In order to avail of the defence under this
section it is necessary tht the criminal act is done without any evil intention.
Intentional wrong-doing can in no circumstances be justified. He will not
responsible for the harmful consequences of his act, provided the act was
done in good faith to avoid or prevent some other harm to person or
property. For example: A sees a tiger attacking B and he feels sure that the
tiger will be on him in a minute, A shoots the tiger fully knowing that B and
tiger are so close tht he might kill B and not the tiger. Here if A kills B, he
would be guilty of no offence because he had no intention to kill B. A
intended to kill the tiger to save B.
2. Act done to prevent harm to person or property: the main principle on
which this section is based is that, causing of lesser evil may be justified to
prevent greater evil either to person or property .
Cases where necessity may be pleaded as defence:
(i) Self-defence, and prevention of violence
(ii) Prevention of harm to the accused at the expense of an innocent
person;
(iii) Choice of evils affecting person other than the accused: An
illustration of the case falling under this category arise when a doctor
has a choice in killing of the child and killing of the other delivering
the child. If the doctor acting in good faith to save the other kills the
child he would be justified under this section.
However, as discussed below necessity does not justify:
(a) Indiscriminate throwing of passengers overboard to save the sinking
vessel: In US v. Holmes, 1872, Holmes was a member of the crew,
who under the order of the master, there overboard 16 male
passengers. Homes was charged with manslaughter(culpable
homicide) but not with murder, as the act was illegal because the
sailors who were not necessary for navigation ought to have been
scarified before the passengers.
(b) And choice of these sailors should have been determined by lot as
there was sufficient time to do so.
In Queen v. Dudley and Stephens (1884), it is called the well-known Mignoets’
case. It was held tht the shipwrecked sailors who killed the cabin boy for food
were guilty of murder, notwithstanding the finding of the jury that if the men
had not fed upon the body of he boy, they probably would not have survived to
be rescued and that the boy, being in a much weaker condition , was likely to
have died before them.
the Court said that the deliberate killing of man howsoever great the
temptation might be killing cannot be justified by necessity.
The Court on the question of conservation of a man’s own life in extreme cases
of hardships laid down the following principle;
1. self-preservation is not an absolute necessity.
2. No man has a right to take other’s life to preserve his own life, unless it is in
self defence, i.e., private defence (Section 96 to 106, IPC).
3. There is no necessity that justified private homicide , that is, to conserve
one’s life, as distinguished from public necessity or even necessity when it is
Section 82 of IPC, discusses an act of a child under seven years of age: According
to this section , “Nothing is an offence which is done by a child under seven years
of age”.
Infancy is a defect of the understanding and infants under the age of discretion
ought not be punished by any criminal prosecution whatsoever. They are under
natural disability of distinguishing between good and evil.
Section 83 of IPC, discusses an act of a child above seven and under twelve of
years of age of immature understanding: “Nothing is an offence which is done by
done by a child above seven years of age and under twelve, who has not attained
sufficient maturity of understanding to judge of the nature and consequences of
his conduct on tht occasion.
Ingredients: the following ae ingredients of Section 83:
(i) An act done by a child above 7 years but under 12 years of age.
(ii) The child must not have attained sufficient maturity of understanding to judge
of the nature and consequences his conduct.
Marsh v. Loader: in this case a child below 7 years was charged for stealing
a piece of wood from the defendant’s premises. Held he was protected
under the defence of Infancy and was discharged.
In India a child between 7 to 12 is presumed to be Doli capax, that is
capable of understanding, and the burden of proof lies on the defendant to
prove that , incapable of committing crimes that is Doli incapax.
In Mussamat Alimona case, the accused was aged 10 years old and she was
held for committing murder of her husband 19 years old. She slept near her
mother in law , whereas the husband slept near his brother. On the day of
the murder, the mother in law woke her for household duties and after some
time, the accused ran away from the house and the husband was wounded
on the neck. She was held to be Doli capax, as she possessed sufficient
degree of criminal intent.
 Unsoudness of mind
Question: 1. Who are legally abnormal persons? Discuss M’Nagnten answers.
2. Explain the nature and extent of unsoundness of mind required to exempt a person
from criminal liability with reference to leading cases.
4. Write a Short notes on ‘Unsoundness of mind.
V. The next exception is : Section 84 of the act discusses on Act of a person of
unsound mind- “Nothing is an offence which is done by a person who, at the
time of doing it, by reason of unsoundness of mind , is incapable of knowing
the nature of the act, or that he is doing what is either wrong or contrary to
law”.
Ingredients: the following are the ingredients of Section 84:
1. Act must be done by a person of unsound mind:
2. Such person must be incapable of the act, or
(i) the nature of the act, or
(ii) that the act was contrary to law, or
(iii) that the act was wrong.
3. Such incapacity must be by reason of unsoundness of mind of the offender.
4. The incapacity of the nature stated above in point 2 must exist at the time
of doing of the act constituting the offence.
Every man is presumed to be sane and to posses sufficient degree of reason to
be responsible for his crimes, until contrary be proved to the satisfaction of the
jury or the Court.
In order to hold a person legally responsible for a crime, a criminal intent is
necessary and therefore capacity of the wrong-doer to form a criminal intent is
a relevant consideration in determining the criminal liability of that person. A
person may lack sufficient mental capacity to form a criminal intent , because of
immaturity of age or because of some defect of the mental faculty. When such
defect is caused by some disease of mind, a person is said to be insane.
Therefore, those who are under a natural disability of distinguishing between
good and evil, as infants under the age of discretion, idiots and lunatics, are not
punishable by any criminal prosecution whatsoever.
The courts before were unable to distinguish properly right from wrong , though
they had not yet definitely formulated this test in very clear term until the
M’Naughten case decided in 1843.
The principle of insanity as a defence was laid down by the House of Lords in the
historic M’Naughten’s case. The accused, Daniel N’Naughten suffered from a
delusion that Sir Robert Peel, the then Prime Minister of Britain had Injured him
and in order to take revenge, he mistook Edward Drummond, the Secretary to the
Prime Minister , for Sir Robert Peel and shot him dead. When charged of murder,
the accused took the defence of insanity. The medical evidence testified that he
was under a morbid delusion which carried him away beyond the powers of his
self-control. The jury found him “not guilty by reason of insanity”. However, his
acquittal was vehemently critised by public which led to a debate in the House of
Lords on this subject. The outcome of the debate was that certain principles were
enunciated by the House of Lords, which were known as the M’Naughten Rules.
They are as follows:
1. Every persons supposed to be sane and to possess sufficient decree of reason
to be responsible for his crimes, until the contrary is proved.
(2) In order to establish the defence of insanity, it must be clearly proved that at
the time of committing the crime, the person was so insane as not to know the
nature and quality of the act he was dong, or if he did know it, he did not know
what he was doing was wrong.
(3) The test of wrongfulness of the act is in the power to distinguish between
right and wrong, not in the abstract or in general, but in regard to the particular
act committed.
The Courts in India have inevitably followed the above Rule in the interpretation
of Section 84 of the IPC.
The criminal law recognises only legal insanity as a defence under Section 84,
IPC and not all kinds of medical insanities. Legal insanity is one which
completely impairs the cognitive faculty of the mind, to such an extent that a
person is incapable of knowing the nature of his act or what he is dong is wrong.
Persons of unsound mind:
There are four kinds of persons who may be said to be not of sound mind (non compos
mentis):
1. An idiot;
2. A lunatic or a madman;
3. One made non compos by illness; and
4. One who is drunk.
1. Idiot: A person who is of non-sane memory from his birth by a perpetual infirmity,
without lucid internals is said to be an idiot. Idiot is also one who cannot count twenty
or tell the days of the week or who does not know his father or other or the like.
2. Lunatic: A lunatic is a person who is afflicted by mental disorder only at certain
periods. If the person who is permanently mad without any interval is sais as
natural insanity. A person who behaves in a stupid way doing crazy and often
dangerous things Lunacy and madness are said to be acquired insanity and idiocy
as natural insanity.
3. Non Compos Mentis: A person made non compos mentis due to regular illness is
exempted from liability, in case of such acts which committed while under the
influence of mental disorder.
 in other words, if the accused is suffering from disease of mind at the time of
commission of offence, and unable to know the consequences of his act. he is
entitled to the exemption of sections 84.
4. Insanity brought on by drunkenness: Drunkenness is no excuse but
delirioum tremens caused by caused by drinking , form of drunkenness , if it
produces such a degree of madness, even for a time, as to render a person
incapable of distinguishing, right from wrong, afforded a ground of excuse from
criminal responsibility.
Unsoundness of mind is some disease of the brain or the nervous system.
Insanity includes, lunacy, mental derangement , mental disorder, madness and
so on. Section 84 does not embrace all types of insanity known to medical
science but only such varieties as render a person incapable of knowing the
nature of the act he was doing or that even if he know it, he did not know it
with either wrong or contrary to law. The expression unsoundness of mind as
used in this section is wide enough to include all varieties of want of capacity
whether temporary or permanent, natural or supervening, whether it arises
from disease or exists from the time of birth. There are numerous degrees of
insanity. In order to be an excuse insanity must reach that degree which is
described in the section. It does not matter whether the insanity arose
from disease of the brain or from the persistent indulgence in intoxicating
drugs or liquor.
At the time of doing it: Insanity must be proved to exist at the time of
committing the act constituting the offence complained of. A plea of insanity
at the time of trial will not help the accused.
Legal Insanity: In Someswar Bora v. State of Assam, 1981, the accused left
the place of murder immediately after committing murder and remembered
clearly, in a confession given on the very next day, what he did. It was held
that, the accused was not entitled to protection of section 84, as it could not
be said that he did not know either the nature and quality of the act or
that he did not know that what he did was wrong. The fact that he had
some sort of abnormality and mental imbalance was immaterial .
Hence in order to get the protection of section 84, the accused has to
establish the existence of what is known as legal insanity, a disease of the
mind as not to know the nature and gravity of the act he was doing or if he
did know it that he did not know he was doing what was wrong.
In Re, Balagopal 1981, the accused appellant committed murders of his wife
and his son by cutting them with a knife for no apparent reason whatsoever.
The mother-in-law of the accused testified that the accused was living very
amicably with his wife and his behaviour was very friendly and there was
nothing abnormal in it. There was no suggestion that the murders were
committed by the accused on account of any motive. The Doctor was of
the definite opinion that the accused would not have been in a position to
understand whether he has committed any particular act, which was wrong
or contrary to law. Hence he was exempted.
Proof if Insanity: Where in a murder case, it is alleged that the accused was
suffering from insanity, the insanity or unsoundness of mind must be
proved. Mere absence of motive is not enough. The crucial point of time at
which it should be proved is the time when the crime is actually committed
and the burden of proving this is on the accused.
The Gauhati High Court in Someswar v. State of Assam, 1981, held that in
order to seek protection under section 84, it must be established that, “the
accused, at the time of committing the offence, was labouring under such
defect of reason from disease of mind as not know the nature and quality of
the act he was doing, or that he did not know what he was doing was wrong.
The term unsoundness of mind or insanity denotes a state of mind in which
the accused is incapable of knowing the nature of his act and that what he is
doing is wrong or contrary to law
Ram Lal v. State of Rajasthan, 1977, is an important case on the point. In this
case Ram Lal lacked motive in killing the 8 years old boy and the doctor’s report
showed that he was a case of epilepsy with retarded mental faulty so as to put
him in he category of severe sub normality. There was no evidence that at the
time of murder the accused as acting in a state of hallucination or under
influence of epileptic insanity. On the contrary his running away to his village
after the occurrence showed that he was conscious of the fact which was
enough to defeat the plea of insanity.
To sum up, the following principles are to be kept in mind in applying this
section:
1. Every type of insanity is not legal insanity; the cognitive faculty must be
destroyed as to render one incapable of knowing the nature of his act or that
what he is doing is wrong or contrary to law;
2. The court shall presume the absence of such insanity;
3. The burden of proof of legal insanity is on the accused, though it is not as
heavy as the prosecution;
4. The court must consider whether the accused suffered from legal insanity at
the time when the offence was committed;
5. In reaching such a conclusion, the circumstances which preceded, attended or
followed the crime are relevant consideration; and
6. The prosecution in discharging its burden of the plea of legal insanity has
merely to prove the basic fact and rely upon the normal presumption of the law
that everyone knows the law and the natural consequences of his act.
VI. The next exception is, Section 85 : Act of a person incapable of judgement
by reason of intoxication caused against his will: According to Section 85 ,
“Nothing is an offence which is done by a person who, at the time of doing it, is
by reason of intoxication, incapable of knowing the nature of the act, or that he
is doing what is either wrong, or contrary to law: provided that the thing which
intoxicated to him was administered to him without his knowledge or against his
will”.
Essentials to establish the defence of intoxication under Section 85 of IPC.
1. At the time of doing the act, the person must be incapable of knowing ,due to
intoxication.
2. The nature of his act, or
3. That he was doing an act which was either wrong or contrary to law; and
4. That the thing which intoxicated him was administered to him against his will
or without his knowledge.
The early common law made no concession because of intoxication. The
earliest case in England wherein the court approved the death sentence for a
homicide committed in extreme intoxication is Reninger v. Fogossa, 1551. the
rigorous law prevailed upto the early nineteenth century, but it was gradually
relaxed in later judicial decisions during this century. However involuntary
drunkenness may be pleaded as an excuse but no voluntary drunkenness.
The general rule in England appear to be that merely to show that a man’s mind
was so affected by drink that he more readily gave way to a violent passion is no
defence. To this general rule, there are two exceptions:
(a) Habitual drinking may occasionally lead to such permanent change in the
brain tissues as to be accounted for insanity, such as delirium tremens and
alcoholic dementia. Where the intellect of a person has been permanently
impaired by vicious habits, the reasons for excluding the plea of incapacity are no
longer applicable.
(b) Involuntary drunkenness is a defence: this exception may be justified for the
reason that the plea of involuntary drunkenness is not open to the same abuse as
one of voluntary drunkenness a Beard , 1920nd the offence is not so likely
repeated.
The Director Public Prosecution v. Beard, 1920, is the leading case on the point.
In this case a girl of thirteen years while going to market passed through the gate
of a mill, where the accused Beard was the watchman on duty. The accused
attempted to commit rape. The girl struggled, therefore, accused place his hand
over her mounth and pressed his thumb on her throat in a bit to prevent her
from screaming. In this endeavour he unintentionally killed her. The Court of
Criminal Appeal found him guilty of manslaughter , but the House of Lords
respired the conviction for murder. The following principles were laid down:
(i) Where a specific intent is an essential element in the offence: evidence of a
state of drunkenness rendering the accused incapable of forming such an intent
should be taken into consideration in order to determining whether he had
in fact formed the intent necessary o constitute the particular crime.
(ii) Insanity, whether produced by drunkenness or otherwise, is a defence to
the crime charged: the insane person cannot be convicted of a crime. The law
takes note of the cause of insanity. If actual insanity in fact supervenes, as he
result of alcoholic excess, it furnishes as complete an answer to a criminal
charge as insanity induced by any other cause. If a man by drunkenness
brings on a state of disease which causes such a degree of madness , then he
would not be criminally responsible.
(iii) That event of drunkenness which renders the accused incapable of
forming the specific intent essential to constitute the crime should be taken
into consideration with the other facts proved in order to determine whether
or not he had this intent.
(iv) That evidence of drunkenness falling short of proved incapacity in the
accused to form the intent necessary to constitute the crime and merely
establishing that his mind was affected by drink so that he more readily gave
way to some violent passion, does not rebut the presumption that a man
intent the natural consequences of his acts.
The SC in the case of Bablu alias Mubarak Hussain v. State of Rajasthan , 2007,
held that in a gruesome murder case of wife and his three minor daughter and a
male child by the accused in 2005, the accused came out of his house at 5 a.m
and started shouting tht he had killed five bastards. there is no reason to accept
the defence that these murders were committed by reason of accused being in a
state of intoxication. The Court held tht these murders were pre-meditated, well
planned and gruesome in nature and therefore, the accused deserved no
sympathy and the case clearly fell in the category of ‘rarest of rare’ case.
Question: Write a short note on Volenti non fit injuria or act done by consent’.
Act not intended and not known to likely to cause death or grievous hurt, which
is done by consent: According to Section 87, “Nothing which is not intended to
cause death or grievous hurt and which is not known by the doer to be likely to
cause death or grievous hurt, is an offence by reason of any harm which it may
cause or be intended by the doer to cause to ay person, above eighteen years of
age who has given consent, whether express or implied to suffer that harm; or
by reason of any harm which it may be known by the doer to be likely to cause
to any such person who has consented to take the risk of that harm.
Ingredients of Section 87: the main principle underlying section 87 is that,
consent never justifies death or grievous hurt. Under this section any harm
other than death or grievous hurt, even though intended or known by the
doer to be likely to be caused will not be an offence under the following
conditions:
(1) If act is done neither with the intention of causing death or grievous hurt
not the knowledge that it is likely to cause death or grievous hurt.
(2) Harm is caused to any person with his consent.
(3) Persons giving consent is above 18 years of age
(4) Consent given may be express or implied.
The defence of consent is based on two propositions :
(1) That every person is the best judge of his own interest;
(2) That no man will consent to what he thinks hurtful to himself: every man
may give away his property, therefore, if a person takes another’s
property with his consent, he commits no offence. For example, a man
Illustration: A and Z agree to fence with each other for amusement . This
agreement implies the consent of each to suffer any harm which in the course of
such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z,
A commits no offence.
All offences against property are offences against alienable right and if done with
the consent of the owner, is a complete defence both to civil and criminal actions.
This right upto a certain stage is an alienable right, but beyond that stage it is
inalienable and no amount of consent can condone the person who infringes that
right.
Hence , consent is a good defence to all offences against property and to all
offences against human body which do not involve the causing of death or grievous
hurt.
A man gave away his property, therefore, if a person takes another’s property with
his consent, he commits no offence. However, this section does not permit a man
to consent to anything intended, or known to be likely to cause his own death or
grievous hurt. The authors of the Code said, if Z chooses to sell his teeth to a
dentist, and permits the dentist to pull them out, the dentist ought not to be
punished for injuring Z’s person.
Sections 87, 88 and 89 of the IPC deal with the law of consent.
Where an act is in itself unlawful, consent can never be allowed as defence.
However, there are some exceptions to the rule . This section ordinarily
provides protection to certain games like fencing , boxing, single sticks, football
and the like. The reason why injuries suffered in the course of any of these
games are distinguished from those where death results in consequence of an
intent to do a slight injury is tht in games bodily harm is not the motive or
intention of either party. A prize fight is illegal.
Question: Explain the acts done in good faith.
I Act not intended to cause death, done by consent in good faith for person’s
benefit: According to Section 88, “Nothing, which is not intended to cause
death, is an offence by reason of any harm which it may cause, or be intended
by the doer to cause, or be known by the doer to be likely to cause, to any
person for whose benefit it is done in good faith, and who has given consent,
whether express or implied, to suffer that harm or to take the risk of that harm.
Ingredients: This section provides that the doer of an act will not be liable even
though he causes the harm resulting in death intentionally or knowing that the
act is harmful if:
(1) The act done is for the benefit of the person who suffers injury,
(2) Such act is done with the consent of the person to suffer tht harm or to take
the risk of that harm,
(3) Consent may be express or implied,
(4) Act is done in good faith,
(5) Act is done without intention to cause death though it might have been done
with the intention of causing such harm as may result in death.
Illustration: A, a surgeon, knowing that a particular operation is likely to cause
the death of Z, who suffers under a painful complaint, but not intending to cause
Z’s death, and intending, in good faith Z’s benefit, performs that operation on Z
with Z’s consent. A has committed no offence.
the rule is that consent can never justify an intentional causing of death.
Under this section wrong-doer is protected even though he has done the act
 with the intention of causing harm including grievous hurt but not death. The
defence is available because the act is done in good faith and for the benefit of
the victim.
Cases: A school teacher who administers in good faith moderate and reasonable
corporal punishment to pupils to enforce discipline in the school is protected by
this section and will not be guilty of an offence punishable under 323 of the
Code.
This section mandates that he who deals with the life or health of another person
must use competent skill and sufficient attention if the patient dies for want of
either, the persons is guilty of manslaughter.
In Dr. Suresh Gupta V. NCT Delhi, 2004, the surgeon(accused) performed plastic
surgery of the patient in order to remove deformity of nose. During the
operation the patient died. The accused was charged of an offence under section
304A of IPC. He pleaded defence under Section 80 and 88 of IPC. Exonerating
the accused of the charges against him, the Supreme Court held the surgeon not
liable for every accident or death caused during operation, unless there has been
 II Act done in good faith for benefit of child or insane person , by or by consent of
guardian: According to Section 89, “Nothing which is done in good faith for the
benefit of a person under twelve years of age, or of unsound mind, by or by consent
either express or implied, of the guardian or other person having lawful charge of
that person, is an offence by reason of any harm which it may cause or be intended
by the doer to cause or be known to by the doer to be likely to cause to that person
Provided :
1. That this exception shall not extend to the intentional causing of death, or to the
attempting to cause death:
2. That this exception shall not extend to the doing of anything which the person
doing it knows to be likely to cause death, for any purpose other than the
preventing of death or grievous hurt, or the causing of any grievous disease or
infirmity:
3. That this exception shall not extend to the voluntary causing of grievous hurt, or
to the attempting to cause grievous hurt, unless it be for the purpose of
preventing death or grievous hurt, or the curing of any grievous disease or
infirmity:
4. That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.
Illustration: A, in good faith, for his child’s benefit without his child’s consent, has
his child cut for the stone by a surgeon , knowing it to be likely that the operation
will cause the child’s death but not intending to cause the child’s death. A is within
this exception, in as must as his object was the cure of the child.
Ingredients: In order that a person may avail the defence under this section 89, the
following conditions must be fulfilled:
1. Act must be done for the benefit of a person who is either a minor under 12
years of age or a person of unsound mind;
2. Act must be done in good faith;
3. Act must be done by the guardian or by the consent of the guardian or other
person having lawful charge of that person;
4. The consent may either be expressed or implied.
5. If the above conditions are fulfilled, the act shall not amount to an offence.
The next exception is:
Consent known to be given under fear or misconception: According to
Section 90, “A consent, is not such a consent as is intended by any section
of this Code, if the consent is given by a person under fear of injury, or
under a misconception of fact, an if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such fear or
misconception; or
Consent of insane person: If the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature
and consequence's of that to which he gives his consent: or
Consent of child- Unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age.
This section does not define consent but describes what is not consent. The
misconception of fact used in this section refers to misconception regarding
the true nature of the act or regarding the effect or consequences of the
acts.
In the following cases consent is not free consent under this section:
(1) Consent given by a person under fear of injury’
(2) Consent given under misconception of fact.
(3) Consent given by a child under 12 years of age.
(4) Consent give by a person of unsound mind.
(5) Consent given by an intoxicated person.

III Acts done in good faith for benefit of a person without consent: According
to Section 92: “Nothing is an offence by reason of any harm which it may cause
to a person for whose benefit it is done in good faith, even without that
person's consent, if the circumstances are such that it is impossible for that
person to signify consent, or if that person is incapable of giving consent, and
has no guardian or other person in lawful charge of him from whom it is
possible to obtain consent in time for the thing to be done with benefit: but
1. That this exception shall not extend to the intentional causing of death, or
the attempting to cause death;
That this exception shall not extend to the doing of anything which the
person doing it knows to be likely to cause death, for any purpose other than
the preventing of death or grievous hurt, or the curing of any grievous
disease or infirmity;
3. That this exception shall not extend to the voluntary causing of hurt, or to
the attempting to cause hurt, for any purpose other than the preventing
of death or hurt;
4. That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.
Illustration: Z is carried off 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. AS’s bullet gives Z a mortal wound. A has committed no offence.
The next exception is :
IV Communication made in good faith: According to Section 93: “No
communication made in good faith is an offence by reason of any harm to the
person to whom it is made, if it is made for the benefit of that person”.
Illustration: a, a surgeon in good faith, communicates to a patient that in his
opinion that he cannot live. The patient dies in consequence of the shock. A has
committed no offence, though he know it to be likely that the communication
might cause the patient's death.
In order that protection may be claimed under this section the
communication should have been made:
(1) In good faith, and
(2) For the benefit of the person to whom it is made.
The next exception is: Act to which a person is compelled by threats: According
to section 94, “except murder, and offences against the State punishable with
death, nothing is an offence which is done by a person who is compelled to do it
by threats, which, at the time of doing it, reasonably cause the apprehension that
instant death to that person will otherwise be the consequence:
Provided the person doing the act did not, of his own accord, or from a
reasonable apprehension of harm to himself short of instant death, place himself
in the situation by which he became subject to such constraint.
Explanation 1- A person who, of his own accord, or by reason of a threat of
being beaten, joins a gang of dacoits, knowing their character, is not entitled to
the benefit of this exception, on the ground of his having been compelled by his
associates to do anything that is an offence by law.
Explanation 2- A person seized by a gang of dacoits, and forced, by threat of
instant death, to do a thing which is an offence by law; for example, a smith
compelled to take is tools and to force the door of a house for the dacoits to
enter and plunder it, is entitled to the benefit of tis exception.
Dr. H.S. Gour has suggested that in order to justify an act under section 94,
three points must be proved, namely:
1. That the person did not voluntarily expose himself to the constraint;
2. That the fear which prompted his action was the fear of instant death;
3. That the act itself was done at a time when he was left with no option but to
do it or die.
Cases: Except murder and offences punishable with death, compulsion is an
Fear must be present at the time of doing the act.
In Devji Govendji, it was held that, “ a policeman is no more justified in
torturing a man to death simply because he had been ordered to do so by his
superior than a robber can justify his act on the plea that he had to obey his
fellow confederates. Therefore, the principle followed in Indian cases is that
“no man from a fear of consequences to himself short of apprehension of
immediate death arising from threat of injury has a right to make himself a
party to committing mischief on mankind.
The next exception is: Act causing slight harm(trifles): according to section
95, “Nothing is an offence by reason that it causes, or that it is intended to
cause , or that it is known to be likely to cause ,any harm, if that harm is so
slight that no person of ordinary sense and temper would complain of such
harm.
This section is based on the principle contained in the maxim “de minimis
non curat lex”, which means tht the law takes no account of trifles.
Whether an act which amounts to an offence is trivial would depend upon
the nature of the injury , the position of the parties, the knowledge with
which the act is done.
The following acts are covered by this section:
(1) Where a person takes pods almost valueless from a tree standing on
Government waste land.
(2) Where the accused committed theft of a cheque of no value.
(3) Where the plaintiff complained of the harm caused to his reputation by
the imputation that he was travelling with a wrong ticket.
The following acts are not trivial in nature:
(1) Where a blow was given across the chest with an umbrella by a dismissed
policeman to a District Superintendent of Police because his application
to reconsider his case was rejected.
(2) Where a respectable man is taken by the ear.
(3) Where an Advocate while cross-examining a witness used filthy words,
Exhibiting disrespect or indignity towards the other of the witness.
Case: In one of the cases, the accused had stored for sale mustard oil of a
quality slightly inferior to the purity standard fixed b the rules. It was urged that
the variation was only slight and the appellant should be given the benefit of
Section 95. the plea was rejected and the conviction was confirmed.
Right of Private Defence
Questions: 1. When the “right of private defence” of the body extends to
causing death?
2. Explain the provisions relating to Private defence of property?
3. What are the circumstances under which the right of private defence may be
exercised?
Introduction: Section 96 to 106 of the Indian Penal Code speak about the right
of private defence of person and property as defence against criminal liability.
Self help is the basic rule of criminal law. The right of private defence is
absolutely necessary for the protection of one’s life liberty and property.
According to these provisions, a man can use necessary force against an assailant
or a wrong-doer for the purpose of protecting his own body and property and
also another man’s body and property, when immediate aid or help from the
State is not readily available. In doing so, he is not liable for any harm done to
the wrong doer by his acts.
“Things done in private Defence: According to section 96, “Nothing is an
offence which is done in the exercise of the right of Private Defence”.
This Section provides that the act done in the exercise of right of private
defence would not amount to an offence. The expression ‘self defence’ has
been elaborately explained in the next section , that is section 97 of IPC. Various
aspects and the extend to which the right of private defence may be used have
been incorporated under sections 96 to 106. in reaching a conclusion whether
an accused has been justified in use of his right of private defence, the Courts
must take into consideration the situation as a whole, namely the injuries
received by the accused, the imminence of threat to his safety, the injuries
caused by him and the circumstances, particularly whether he had the time to
seek assistance from the public authorities in the situation of the case.
Generally, the onus that he acted in exercise of his right to private defence lies
on he accused himself, but there may be cases when the accused though acting
under the right does not raise this plea before the Court or pleads some other
defence, in such a situation, the Court may suo moto allow this defence to the
accused if it thinks it necessary in the interest of justice.
This view finds support in the Supreme Court’s decision handed down in
Subramani v. State of Tamil Nadu, 2005, wherein the Court observed that the
plea of private defence need not always be taken by the accused, and even if
this plea is not raised by the defence, the court can itself consider it, if the
Circumstances of the case so warrant. However, in this particular case, the right
of private defence was not accepted by the Court.
The Supreme Court in Bhan Singh v. State of Punjab, 1995, held that a person
who comes fully prepared for a fight or a quarrel and attacks the unarmed
victim, will not be entitled to the benefit of private defence.
In Sekar alias Shekheran v. State of Tamil Nadu, AIR 2002, there was a quarrel
between the accused and the deceased which was not premeditated. While
quarrelling the accused suddenly attacked the deceased who fell on the ground
and succumbed to injuries as the accused still continued to hit him on his neck.
Disallowing the plea of private defence, the Court convicted the accused for the
offence under section 304, Part I of the IPC.
In Krishna and others v. State of UP, 2007, the accused was indebted to the
deceased and the latter was persistently asking for the repayment of debt.
There was exchange of abuses between the two on this issue. When the
deceased was going to police station along with his brother to lodge a FIR, the
accused with lathis and knife causing him serious injuries which caused his
death. The Court held the accused guilty of the offence of assault and refused
to accept his plea of private defence.
The Court in this case, reiterated that in order to decide whether the right of
private defence should be allowed to the accused or not, the Court would take
into consideration the following facts:
(i) Injuries caused to the accused;
(ii)Imminence of danger to the accused;
(iii)
The injuries caused by the accused to the person injured; and
(iv)Whether there was sufficient time for recourse to public authorities instead
of using force for self protection.
Section 97: Right of private defence of the body and of property- Every person
has a right, subject to the restrictions contained in Section 99 to defend-
1. His own body, and the body of any other person, against any offence
affecting the human body;
2. The property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of
theft, robbery, mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal trespass.
3. This Section provides that every person has a right to defence the person
and property of his own and also of any other person. The right to defend
property is very limited in the sense that it extends to only 4 offences, namely
theft, robbery, mischief and criminal trespass and attempt thereof.
The exercise of right of private defence relating to person under Section 97 is
justified only where the offence is actually committed and not merely on the
possibility of the occurrence of the offence. As provided under the section 99
of IPC, the exercise of the right of private defence under Section 97 is subject
to following limitations:
(1) The aggressor’s act should constitute an offence relating to human body
under the IPC;
(2) The person using this right must have apprehension of injury to his body or
body of some other person;
(3) The person exercising this right should not himself be an aggressor; and
(4) The right of private defence is right to defend and not right to take revenge.
Defence of Body: Where a person is about to shoot a person, the targeted
person may fire the gun in his own self defence and it will be no offence.
 The Supreme Court held in Sonelal v. State, 1981, held that right of private
defence begins when there is reasonable apprehension about injury to
Human body. Mere intimidation will not constitute a valid ground for the
exercise of the right of private defence. The person exercising this right should
not himself be an aggressor.
The Supreme Court in State of UP v. Niyami, 1987, held that right of private
defence extends not only for self, but also for defending the body or property of
others. The English Law however does not extend this defence to protection of
strangers.
Defence of Property: the exercise of right of private defence is not limited to the
protection of human body but also extends to the protection of one’s property
and property of others.
The right of private defence of property cannot be exercised against a
person who entered the premises lawfully, under the authority of law. Thus in
Kanwar Singh v. Delhi Administration, AIR 1965, a raiding party under the
authority of the Delhi Municipal Corporation Act, seized the stray cattle
belonging to the accused and the accused resisted the seizures by use of force
and inflicting injuries on the raiding party, it was held that the right of private
defence cannot be available to the accused and he was convicted for the
offence of assault.
Exceeding the right of Private Defence: Where the accused has used force
which was excessive in the circumstances of the case, he cannot avail of the
right of private defence.
In the case of Kishore Shambhunath Mishra v. State of Maharastra, AIR, 1989,
two notorious criminals of the locality armed with lethal weapons entered a
flat and forced the occupants to part with money, an act which is an offence of
extortion under section 388 of IPC. The occupants of the flat resisted the
invaders both of whom were killed in the fight. It was difficult to say as to who
actually hit the deceased which caused their death. The Court held all the
occupants in those circumstances were entitled to the right of private defence
and therefore none of them could be convicted for an offence under Section
302 read with section 34 IPC.
Section 98: Right of private defence against the act of a person of unsound
mind, etc., “
When an act, which would otherwise be a certain offence is not that
offence, by reason of the youth, the want of maturity of understanding, the
unsoundness of mind or the intoxication of the person doing that act, or by
reason for any misconception on the part of that person, every person has
the same right of private defence against that act which he would have if the
act were that offence.
Illustrations: 1. Z, under the influence of madness attempts to kill A, Z is
guilty of no offence. But A has the same right of private defence within he
would have if Z were sane.
2. A enters by night a house which he is legally entitled to enter. Z, in good
faith taking A for a House-breaker, attacks A. Here Z, by attacking A under
this misconception, commits no offence. But A has the same right of private
defence against Z, which he would have if Z were not acting under that
misconception.
Acts against which there is no right of private defence:
The clauses one to four, under the Section 99, lays done the limitations within
which the right of private defence can be exercised. In other words, it explains
the conditions under which the right of private defence will not be available.
They are as follows:
(1). Right of private defence does not exist against public servant acting in good
faith: There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or
attempted to be done, by a public servant acting in good faith under colour of his
office, though that act may not be strictly justifiable by law.
For instance, where a police officer in good faith arrests a person, then the
person so arrested will not have any right of private defence against the police
officer. But if the police officer exceeds his authority and makes illegal arrest, then
the arrestee shall have the right of private defence against such police officer.
(2). Acts done under the direction of Public Servant: There is no right of private
defence against a person who has acted under the direction of a public servant.
But there is an exception to this rule. Where a person not knowing that the act
is being done under the directions of a public servant, exercises right of private
defence against the doer of the act, he shall be entitled to defence under this
section. Thus, where a police officer attempted to execute a warrant which was
issued illegally, it was held that the accused were justified in resisting the
execution of that warrant.
(3). Where there is time to have recourse to protection of public authorities:
the principle underlying this provision is that no one can be allowed to take law
in his own hands when he can seek the assistance of public authorities for
redressal of his problem. However, where the assistance of public authorities
cannot be procured and the situation warrants immediate action on the part of
the defender, he can retaliate, to keep away the attack without waiting for such
help.
while deciding on availability of the right of private defence under this clause of
Section 99, the Court will take into consideration the following two aspects:
(i)The nature and gravity of the danger apprehended; and
(ii) Did the accused have time to seek recourse to public authorities for
assistance, instead of making use of the right of private defence himself.
(4) The harm or injury caused should not be more than necessary keeping in
view the circumstances of the case: This Clause (4) of this Section further
stipulates that right of private defence in no case should exceed to the causing of
more harm that is necessary for the purpose of defence. Where the accused
continued assault on the deceased after he had fallen on the ground and became
helpless, it was held that there was no need to assault him further therefore, the
accused had exceeded the limits of right of private defence and therefore , lost
that right.
Questions: 1. When the “right of private defence” of the body extends to causing
death?
Section 100 discusses, when the right of private defence of the body extend to
causing death: the right of private defence of the body extends, under the
restrictions mentioned in the last proceeding section to the voluntary causing of
death or of any other harm to the assailant, In this offence which occasions the
exercise of the right be of any of the description hereinafter enumerated, namely
1. Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault:
2. Such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequences of such assault:
3. An assault with the intention of committing rape:
4. An assault with the intention of gratifying unnatural lust:
5. An assault with the intention of kidnapping or abducting:
6. An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will
be unable to have recourse to the public authorities for his release.
7. An act of throwing or administering acid or an attempt to throw or
administer acid which may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such act.(this seventh
new clause was added by Criminal Law Amendment Act of 2013).
Condition to invoke section 100:
1. The person exercising the right of private defence must not do any act to
invite the encounter;
2. There must be an actual peril to life or great bodily harm or injury, either
real or apparent to create an honest belief that only by causing death of the
aggressor such peril could be avoided.
3. There must not be any safety or any means of escape by retreat; and
4. There must not been a necessity for taking the life.
This section contemplates that there may be certain situations wherein a
person may not have any alternative except causing death of the aggressor in
exercise of his right of private defence of body. The section enumerates such
situations, wherein a person may use his right of private defence to the extend
of causing death of the assailant in the exercise of his right of private defence
are where there is reasonable and imminent danger or fear of assailant’s act
result in the following:
1. Reasonable apprehension of death or grievous hurt: Clauses first and second
of this Section provides that the right of private defence of body extends to
causing death, when an assault reasonably causes the apprehension that it
might result in death or grievous hurt if not retaliated promptly. Such
apprehension must be real and reasonable and not imaginary or based on
surmises. Mere reasonable apprehension is sufficient to justify exercise of
the right of private defence by the accused.
In State of UP. V. Zalim, AIR, 1996, there was a verbal altercation between the
deceased and the accused and the deceased took off the shoe of his left leg and
hurled at the accused. On this, the accused felt badly insulted and therefore,
dragged the deceased in the middle of the road and stabbed his causing his
death. Held, hurling of shoes could not cause reasonable apprehension of
imminent danger the mind of a person and therefore, the accused was not
justified in stabing the deceased in the exercise of his right of private defence.
The defence therefore fails.
2. Assault with intention to commit rape or unnatural offence: Clauses third and
fourth of Section 100, stipulates the right of private defence of body
extends to causing death in cases of assault with intention of committing rape or
gratifying unnatural lust. The offences of rape and unnatural lust are defined in
IPC under Sections 376 and 377 respectively.
The Supreme Court in Deo Narayan v. State of UP, 1973, held tht when a vital part
of the body such as head is hit by a blunt weapon, it crates a reasonable
apprehension of grievous hurt or even death in the mind of the defence.
Therefore, use of spear by him may be justified under right of his private defence
and it cannot be said tht the force in those circumstances was excessive than need
to stop the oppression.
The case of Gurriya Buchha v. State of Gujarath, AIR, 1962, relates to exercise of
right of private defence under Section 100 in order to protect a person from being
a victim of the unnatural sexual lust of the deceased. In this case, the deceased
assaulted a boy and caused him injuries in order to satisfy his sexual lust. Seeing
this, the accused attacked the deceased who fell down and even after that the
accused continued beating him with the result the deceased dies, Held , the
apprehension of unnatural act by the deceased had come to an end the moment
he fell on the ground, therefore the grievous hurts caused by the accused to the
defendant after his falling down were not justified in exercise of the right of
private defence under section 100. the defence was this disallowed.
3. Assault with intention of kidnapping or abducting: according to Clause fifth of
this section: When there is an assault which is an offence against human body
and that assault is with the intention of abduction as defined in Section 362, IPC,
the right of private defence will be available to the accused when caused injuries
or even death to oppose the act of abduction.
In Vishwanath v. State of UP, AIR, 1960, the husband went to his in laws house to
bring back his wife who had left him and was residing with her parents. His father-in-
law, refused to send his daughter, hence her husband forcibly dragged her out of the
house to take her with him. This infuriated brother-in-law of the deceased husband
stabbed him to death. In defence, the brother of the girl pleaded protection under
clause fifth of section 100 as the act was done to prevent his sister from being
forcibly abducted by her husband. Accepting his defence, the Court acquitted the
accused.
4. Assault with the Intention of Wrongful Confinement: Clause sixth of Section 100
stipulates that the right of private defence of body may extend to causing death when
there is an assault with the intention of causing wrongful confinement(Section 304 of
IPC) of a person. But the person asserting this defence must have a reasonable
Apprehension that the person so confined did not have recourse to public
authorities for his or her relief.
According to Section 101, that in case of an offence of any other description
enumerated in the section 100, the right of private defence will not extend to
causing of death of the assailant, but accused in defence can cause any other
harm expect death in such a case.
According to Section 102, talks about Commencement and continuance of the
right of private defence of the body: the right of private defence of the body
commences as soon as a reasonable apprehension of danger to the body arises
from an attempt or threat to commit the offence though the offence may not
have bee committed and it continues as long as such apprehension of danger to
body continues. (also write here Section 103, When the right of private defence
of property extends to causing death, which is dealt in the next question )
Question: Explain the provisions relating to Private defence of property?
Section 97: Right of private defence of the body and of property- Every person
has a right, subject to the restrictions contained in Section 99 to defend:
1. His own body, and the body of any other person, against any offence affecting
the human body;
2. The property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of theft,
robbery, mischief or criminal trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass.
3. This Section provides that every person has a right to defence the person and
property of his own and also of any other person. The right to defend property
is very limited in the sense that it extends to only four offences, namely theft,
robbery, mischief and criminal trespass and attempt thereof.
The exercise of right of private defence relating to person under Section 97 is
justified only where the offence is actually committed and not merely on the
possibility of the occurrence of the offence.
Limitations: As provided under the section 99 of IPC, the exercise of the right of
private defence under Section 97 is subject to following limitations:
(1) The aggressor’s act should constitute an offence relating to human body
under the IPC;
(2) The person using this right must have apprehension of injury to his body or
property of some other person;
(3) The person exercising this right should not himself be an aggressor; and
(4) The right of private defence is right to defend and not right to take revenge.
Defence of Property: the exercise of right of private defence is not limited to the
protection of human body but also extends to the protection of one’s property
and property of others. Every person has a right to defend the property of
himself or of any other person. A rightful owner is entitled to turn out physically
trespasser or one trying to infringe upon his rights. A person exercising this right
should however, not use more force, that is, he has to use reasonable force to
defend his possession from a trespass.
Where a trespasser enters upon the land of another, the person in
whom the right of possession is vested while the trespasser is the process of
acquiring possession may turn the trespasser out of the land by force and if
in doing so he inflicts such injuries on the trespasser as are warranted by the
situation, he commits no offence.
The right of private defence of property cannot be exercised against a person
who entered the premises lawfully, under the authority of law. Thus in Kanwar
Singh v. Delhi Administration, AIR 1965, a raiding party under the authority of
the Delhi Municipal Corporation Act, seized the stray cattle belonging to the
accused and the accused resisted the seizures by use of force and inflicting
injuries on the raiding party, it was held that the right of private defence cannot
be available to the accused and he was convicted for the offence of assault.
Exceeding the right of Private Defence: Where the accused has used force which
was excessive in the circumstances of the case, he cannot avail of the right of
private defence.
In the case of Kishore Shambhunath Mishra v. State of Maharastra, AIR, 1989,
two notorious criminals of the locality armed with lethal weapons, entered
 a flat and forced the occupants to part with money, an act which is an offence
of extortion under section 388 of IPC. The occupants of the flat resisted the
invaders both of whom were killed in the fight. It was difficult to say as to who
actually hit the deceased which caused their death. The Court held all the
occupants in those circumstances were entitled to the right of private defence
and therefore none of them could be convicted for an offence under Section
302 read with section 34 IPC.
When the right of private defence of property extends to causing death:
According to Section 103: the right of private defence of property extends,
under the restrictions mentioned in Section 99, to the voluntary causing of
death or of any other harm to the wrong-doer, if the offence, the committing of
which, or the attempting to commit which, occasions, the exercise of the right ,
be an offence of any of the description hereinafter enumerated, namely:
1. Robbery;
2. House-breaking by night;
3. Mischief by fire committed on any building., tent or vessel, which building,
tent or vessel is used as a human dwelling or as a place for the custody of
property;
4. Theft, mischief or house-trespass under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not exercised.
In Puddhan v. State of Tami Nadu, AIR, 2000, there was a dispute over drainage
of water between the deceased and father of the accused and they had gone to
the extent of assaulting each other. In the mean time, the father called his
son(the accused in the case) for help, whereas the mother of the deceased who
intervened was pushed by the accused and she fell down. Thereafter, the
accused went home and brought a knife by which he caused eight injuries to
the accused who later died. The accused pleaded the defence of protection of
property. However, the SC disallowed the defence. The Court altered his
conviction under section 302 to one of Section 304, Part I and the appeal was
dismissed.
 When such right extends to causing any harm other than death: Section 104 of
IPC: If the offence, the committing of which or the attempting to commit which
occasions the exercise of the right of private defence, be theft, mischief, or
criminal trespass, not on any of the descriptions enumerated in Section 103, that
right does not extend to the voluntary causing of death, but does extend, subject
to the restrictions mention in section 99, to the voluntary causing to the wrong-
doer of any harm other than death.
In A.R. Yelve v. State of Maharashtra, 1996, The SC ruled that the right of private
defence under section 103 or Section 104 is not available in cases where the
accused does not have right, title, interest or possession over the disputed land.
Commencement and Continuance of the right of private defence of property:
According to Section 105:
1. The right of private defence of property against theft continues till the
offender has effected his retreat with the property or till the assistance of the
public authorities is obtained, or the property has been recovered.
2. The right of private defence of property against robbery continues as long as
the offender causes or attempts to cause to any person death or hurt or wrongful
Restraint or as long as the fear of instant death or if instant hurt or of instant
personal restraint continues.
The right of private defence of property against criminal trespass or mischief
continues as long as the offender continues in the commission of criminal
trespass or mischief.
The right of private defence of property against house-breaking by night
continues as long as the house-trespass and house-breaking continues.
Topic : Abetment
Questions: 1. Explain the provisions relating to abetment of offence.
2. Who is an ‘abettor’? what is abetment of a thing?
3. Define Abetment.
4. A instigated B to murder C. B is pursuance of the instigation stabs C. C
recovers from the wound . What is the liability of ‘A’?
Introduction: The provisions relating to abetment as an offence are contained in
sections 107 to 120 of the Code. Where a crime involves joint-criminals tht is
more than one criminal under the principles of joint liability, the English law
places them into four categories: (Which we have already discussed in Unit I)
(1) Principal in the first degree, that is one who commits the crime or gets the
same committed by an innocent agent;
(2) Principal in the second degree, that is, one is present at the scene and aids and
assist in the commission of crime.
(3) Accessory before the fact; that is, one who though absent from the scene of
crime, counsels, procures or commands another to commit the crime; and
(4) Accessory after the fact, this, one who knowing well that the perpetrators has
committed a crime, harbours and assists him to escape punishment.
Though Indian Law of abetment does not recognise such categories, it
does make a distinction between the main perpetrator of the crime and those
who help or assist him in commission of crime as also those who harbour or
provide shelter to them.
Abetment of a thing: Section 107, describes what is a abetment of a thing: A
person Abets the doing of a thing who –
first- Instigates any person to do that thing: or
Secondly- Engages with one or more other persons or persons in any
conspiracy for the doing of that thing, If an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing: or in
pursuance of that conspiracy.
Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1: A person who, by wilful misrepresentation or by wilful
concealment of a material fact which he is bound to disclose, voluntarily causes
or procures, or attempts to cause or procure, a thing to be done, is said to
instigate the doing of that thing.
Illustration: A public officer, is authorised by a warrant from a Court of Justice 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 of C.
Explanation 2- Whoever, either prior to or at the time of the commission of an
act, does anything in order to facilitate the commission of that act, and there
by facilitates the commission thereof, is said to aid the doing of that act.
When several persons take part in the commission of an offence, each one of
them may contribute in a manner and degree different from the others to the
commission of it. The offence may be committed by the hands of one person
at the instigation of another person, while some others may only be present for
offering help at the time of commission of it, and still others may help the
principal culprit in procuring the tool. It is necessary, therefore, to determine
their degree of culpability.
Under the English law distinction is made between Principals who may be of
the first or second degree ad the accessories before and after the fact. Principal
in the first degree is one who commits or actually takes part in the commission
of a crime. Principal in the second degree is one who aids or abets the actual
commission of a crime. Whoever directly or indirectly incites, counsels,
procures, encourages or commands any person to commit a felony is accessory
before the fact if the felony is committed in consequence thereof. Such a
person if present at the time of commission of a crime is called Principal in the
second degree. Whoever, knowing tht a felony has been committed by another
person, receives comforts or assists him in order to enable him to escape from
punishment is known as accessory after the fact. This distinction in English Law
has its relevance only in cases of felony but not in treason or misdemeanours.
Illustration- A instigates B to murder M. C encourages B by saying ‘maro maro’
and D puts a lathi into his hand. B thereby kills M. E knowing tht B had killed M,
harbours him in order to enable him to escape from arrest. Here B is the person
who commits the offence and is therefore Principal in the first degree. D aids B
by putting lathi into his hand and is therefore Principal in the second degree. A
and C are accessories before the fact for they instigate and encourage B to kill
M. E is the accessory after the fact for he assist him in escaping from
punishment.
Under Indian Law, the IPC makes a broad distinction between principals and
abettors but does not recognise the accessory after the fact, except that
harbouring of offender has been made a substantive offence in some cases.
Under Indian Penal Code, abetment is constituted in the following ways:
(1) By instigating a person to commit an offence; or
(2) By engaging in a conspiracy to commit an offence; or
(3) By intentionally aiding a person to commit an offence.
Abetment is an offence, only if the act abetted would itself be an offence
punishable under the Indian Penal Code or under any other law for the time being
in force. The SC held in Gangula Mohan Reddy v. State of Andhra Pradesh, 2010,
that abetment involves mental process of instigating or intentionally aiding person
to do certain thing. Some positive act by accused is essential to constitute
abetment.
(1) By instigating a person to commit an offence; Instigation means the act of
inciting another to do a wrongful act. One may abet the commission of an
offence by counselling, suggesting, encouraging, procuring or commanding
another to do an act. In order to constitute abetment by instigation, some
active proceeding towards the perpetration of the crime is necessary.
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, because
instigation means some active suggestion or support to stimulation to the
commission of the act.
(2) By engaging in a conspiracy to commit an offence; Abetment by conspiracy
consists when two or more persons engage in a conspiracy for the doing of a
thing and an act or illegal omission takes place in pursuance of the
conspiracy and in order to the doing of that thing. Thus in order that
abetment by conspiracy may be constituted, three things are necessary:
(a) A conspiracy between two or more persons;
(b) Such an act or illegal omission must also take place in order to the doing of
the thing conspired.
Conspiracy means an agreement between two or more persons:
(a) To do an illegal act, or
(b) To do an act which is not illegal but by illegal means.
(3) Abetment by intentionally aiding a person to commit an offence: A person
abets the doing of a thing who intentionally aids, by any act or illegal omission,
the doing of that thing. 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.
For instance, if a servant keeps open the gate of his master’s house , so that
thieves may enter, and thieves do not come, he cannot be held to have abetted
the commission of 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 encourages by his conduct to commit theft and is guilty of abetment by
instigation; or if prior to the opening of the gate he had entered into an
agreement with the thieves to keep the door open he would be guilty of
abetment by conspiracy.
Mere presence at the commission of an offence does not amount to intentional
aid, unless it was intended to have that effect.
In Hardhan Chakravarthy v. Union of India, 1990, the main offender was
convicted along with one abettor and eight other abettors were acquitted
of the charges of theft of some military material. Therefore, the main
offender was acquitted by the High Court and thus the only abettor who
was left, appealed to the Supreme Court against his sole conviction. The
Supreme court held that since all the abettors along with the main
offenders had been acquitted the single abettor also deserved to be
acquitted.
Question: Who is an ‘abettor’?
Section 108 defines who is a Abettor. A Abettor is a person abets an offence,
who abets either the commission of an offence, or the commission of an act
which would be an offence, if committed by a person capable by law of
committing an offence, with the same intention or knowledge as that of the
abettor.
Explanation 1- The abetment of the illegal omission of an act may amount to
an offence although the abettor may not himself be bound to do that act.
Explanation 2- To constitute the offence of abetment, it is not necessary that
the act abetted should be committed, or that the effect requisite to constitute
the offence should be caused.
Illustration: (a) A instigates B to murder C, B refuses to do so. A is guilty of
abetting B to commit murder.
A instigates B to murder D. B in pursuance of the instigation stabs D. D
recovers from the wound. A is guilty of instigating B to commit murder. (this is
the answer for the problem asked in the KSLU)
Explanation 3 - It is not necessary that the person abetted should be capable by
law of committing an offence, or that he should have the same guilty intention or
knowledge as that of the abettor, or any guilty intention or knowledge.
Illustration: A, with A guilty intention, abets a child or a lunatic to commit an act
which would be an offence, if committed by a person capable by law of
committing an offence, and having the same intention as A. Here A, whether
the act be committed or not, is guilty of abetting an offence.
Explanation 4 – The abetment of an offence being an offence, the abetment of
such an abetment is also an offence.
Illustration: A instigates B to instigate C to murder Z, B accordingly instigates C to
murder Z, and C commits that offence in consequence of B’s instigation. B is
liable to be punished for his offence with the punishment for murder and as A
instigated B to commit the offence, A is also liable to the same punishment.
Explanation 5 – It is not necessary to the commission of the offence of abetment
by conspiracy that the abettor should concert the offence with the person who
commits it. It is sufficient if he engages in the conspiracy in pursuance of which
the offence is committed.
Illustration: A, concerts with B a plan for poisoning Z. It is agreed that A shall
administer the poison. B them explains the plan to C mentioning that a third
person is to administer the poison, but without mentioning A’s name. C agrees
to procure the poison, and procures and delivers it to B, for the purpose of its
being used in the manner explained. A administers the poison, Z dies in
consequence . Here, though A and C have not conspired together, yet C has
been engaged in the conspiracy in pursuance of which Z has been murdered. C
has, therefore, committed the offence defined in this section and is liable to the
punishment for murder.
In case of offence of abetment, active complicity, on the part of the abettor,
prior of actual commission of the offence is necessary. The Abettor must
substantially assist the principal culprit towards the commission of the offence.
To repeat again, Para (1) of section 108 defines Abettor. Abettor means:
(a) One who abets the commission of an offence, or
(b) One who abets the commission of an act which would be an offence if
committed by a person not suffering from any physical or mental incapacity.
( what amount to Abetment is already explained in section 107).
Section 108-A: Abetment in India of offence outside India:
A person abets an offence within the meaning of this Code, who is India, abets the
commission of any act without and beyond India, which would constitute an
offence if committed in India.
Section 109: this section provided for the same punishment to the abettor as
that which may be inflicted on the principal offender provided that-
(a) The act abated is committed in consequence of the abetment ; and
(b) No express provision is made in the Code for the punishment of such an
abetment.
This section only lays down that if separate punishment has not been provided by
the code for an abetment, then it would be punishable with the punishment
provided for the original offence.
The explanation makes it clear that the abetment may be of any one of the three
kinds that is, instigation, aiding or conspiracy.
In the case of Sahib Lal Rit Lal v. Emperor, 1883, a widowed woman sat on the
funeral pyre to commit sati by burning herself alive along with the dead body of
her deceased husband. She asked the accused to set the fire on but as soon as
the flames started coming-out from the pyre, she got frightened and started
running away but the accused compelled her to come back and commit sati, but
she did not oblige. The Court held that the woman was guilty of attempt to
commit suicide under section 309, IPC but along with her the accused was also
held guilty of abetment of murder under Section 109, IPC.
Topic: Criminal Conspiracy
Questions: 1. What is criminal conspiracy? How does it differ from abetment?
2. Write short notes on Criminal conspiracy.
Section 120-A, defines Criminal Conspiracy as “When two or more person agree to do, or
cause to be done-
(1) An illegal act, or
(2) An act which is not illegal but done by illegal means, such an agreement is designated a
criminal conspiracy:”
Provided 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 or more parties to
such agreement in pursuance thereof.
Explanation – It is immaterial whether the illegal act is the ultimate object of such agreement,
or is merely incidental to that object.
Ingredient of the Section 120-A – The offence of criminal conspiracy as defined in
Section 120-A must have the following ingredients:-
(i) There must be an agreement between two or more persons between
themselves; and
(ii) The agreement must be to do or cause to be done:
(a) an illegal act; or
(b) a legal act by illegal means.
The proviso to section 121-A, further amplifies that in case of conspiracy to
commit an offence, mere existence of an agreement is sufficient to impose penal
liability without the requirement of some overt act having been done in
furtherance of the conspiracy. But where there is conspiracy to do a legal act by
illegal means, there must be an overt act committed by one or more parties to
the agreement. In other words, in the latter case existence of both, agreement
as well as an overt act is essential to constitute the offence of conspiracy.
Criminal conspiracy is a continuing offence and it continues till the conspirators
do not rescind or frustrate it voluntarily or compelled by the circumstances.
The Supreme Court summarises the broad essentials of the offence of
criminal conspiracy in Devender Pal Singh v. State(NCT Delhi), as follows:
(a) There should be an object or purpose to be accomplished;
(b) There should be a plan embodying means to accomplish that object;
(c) An agreement or understanding between two or more person's to
combine and accomplish that object or purpose by mutual cooperation;
and
(d) An overt act in pursuance of the agreement where the conspiracy is to do
for doing a legal act by illegal means.
Essentials of Criminal Conspiracy
1. There must be two or more persons: In order to constitute an offence of
criminal conspiracy, there must be an agreement between two or more
persons to do an illegal act or to do a legal act by illegal means
In Faguan Kant Nath v. State of Assam, AIR, 1959, a Major of the Army was tried
for committing theft by conspiring with nine other army personnel who were
co-accused in the case. Eight out of these nine were acquitted by the Trial Court
and the remaining one was acquitted by the High Court on appeal. The Major
appealed to the Supreme Court on the ground that he alone could not conspire
with himself. Accepting the plea of the Major(Appellant) the Court ordered his
acquittal.
2. Agreement between two persons is the essence of the offence of Criminal
Conspiracy: An agreement among the combination of persons to do an illegal
act or to a legal act by illegal means is the essence of the criminal conspiracy.
Mere combination of two or more persons does not make a case of criminal
conspiracy unless they have agreed to do an illegal act or legal act by illegal
means . However, the law does not require that each and every person
should have knowledge of all the details of offence which is going to be
committed by conspiring together.
3. The agreement should be to commit an illegal act or an act which is legal by
illegal means: An ‘illegal act’ as defined in section 43, IPC means an act which
is prohibited under the law or which creates a basis for civil action.
The Supreme Court in State of Madhya Pradesh v. S.B. Johari, SCC, 2000, once
again reiterated that in most case involving charge of criminal conspiracy, it is
only from the circumstantial evidence that an inference of conspiracy has to be
drawn.
4. The act must have been done in furtherance of agreement: As stipulated in
the explanation appended to Section 120-A, this section equally applies to
other acts committed by conspiracy besides the commission of an offence
by criminal conspiracy.
5. Inference of Conspiracy: there may be cases when direct evidence is not
available about the offence, but the facts and circumstances by themselves
may be sufficient to draw an inference about the existence of criminal
conspiracy.
In Saju v. State of Kerala, 2001, the Court held that evidence in case of
conspiracy is generally based on inference deduced from acts or illegal
omissions of the accused persons done in furtherance of their common
intention, there must be evidence to show that there existed a common design
to act.;
Punishment of Criminal conspiracy: According to Section 120-B:
This section provides punishment for the offence of criminal conspiracy. As
provided in the preceding Section 120-A criminal conspiracy may be of two kinds,
namely,
(1) Conspiracy for committing serious offences which are punishable with death,
imprisonment for life or rigorous imprisonment for a term of 2 years or more;
and
(2) Conspiracy to commit other than the serious offence and act which is legal but
done by illegal means.
In the former case, no overt act is deemed necessary and mere
agreement if proved would be sufficient to constitute the offence of criminal
conspiracy, but in the latter case an overt act must have been done.
Distinction between Criminal Conspiracy(Section 120-A) and Abetment(Section
107)
In view of the fact that conspiracy is an offence by itself under Section 120-A and
one of the form of abetment of an offence under Section 107, it is necessary to
bring out distinction between the two. It is as follows
 Criminal Conspiracy(Section 120-A) Abetment (Section 107)
1. Criminal Conspiracy is a substantive Whereas under the second clause of
offence under Section 120-A of IPC. Section 107, conspiracy is a form of
abetment for doing an act or illegal
2. In case of Criminal conspiracy under omission.
Section 120-A, there has to be an
agreement between two or more
persons to do or cause to be done an Whereas in case of Section 107 it is
illegal act or a legal act when not ‘engagement’. The person who abets is
illegal by illegal means. Therefore, the called the Abettor.
basis of liability under Section 120-A
is agreement.

3. An agreement to commit an offence In the offence of abetment a mere

under Section 120-A, an overt act in combination of persons or agreement
pursuance of that agreement is not between them is not enough, but in an
deemed necessary. That is, The mere act or illegal omission must take place in
agreement is enough, if the agreement is
to commit an offence. pursuance of the conspiracy and in order
to the doing of the thing conspired for.
4. Whereas conspiracy can be 4. Conspiracy is one of the
committed by two or more. methods in Abetment.
5. Abetment may be committed in
various methods or ways , that is
Instigation, Conspiracy or Intentional
aid etc.,
5. Crime of Conspiracy is 6. Crime of Abetment explained in
Section 107 to 120 of the Code.
explained in Sections 120A & 120-
B of the Code.
6. Mere Conspiracy is not 7. Abetment may be committed by
conspiracy also.
abetment.
8. Since Abetment by itself is not an
7. Conspiracy is itself an offence offence and hence not punishable.
and hence punishable. Abetment of an offence only
becomes an offence.
 Criminal Conspiracy(Section 120-A) Abetment (Section 107)
8. The punishment for an offence of 9. But in case of abetment by
criminal conspiracy under Section 120- conspiracy(Section 107), the abettor
A is provided under Section 120-B will be liable to punishment
according to circumstances stated in
Sections 108 to 117 of the Indian
Penal Code.
9. Though there is a close association
of criminal conspiracy with incitement
and abetment, the scope of conspiracy
as a substantive offence is wider in
amplitude than abetment by
conspiracy in the sense that mere
agreement to commit an illegal act is
made an offence even if no step is
taken to carry out that agreement.
Distinction between Criminal conspiracy(Section 120-A) and Common Intention( Section 34)
1. Criminal conspiracy under section As against this, Section 34,
120-a postulates an agreement embodies the principle of joint
between two or more persons to do liability in the doing of a criminal
or cause to be done, an illegal act or
an act which is not illegal, by illegal act with common intention.
means. Thus, mere agreement is
made an offence even if no step is
taken to carry out that agreement.
2. Another difference between the two
sections is that a single person But under Section 34, read with
cannot be convicted under Section
120-A and, therefore, where all the some other specific offence, a
accused except one is acquitted of single person can be convicted
the charge of section 120-A, he has because each is responsible for
also to be acquitted as a single the acts of all others due to the
person cannot conspire with himself. presence of common intention.
3. Criminal conspiracy under Section But the common intention
120-A, is a substantive offence in postulated by section 34 does not
itself. constitute an independent offence,
instead it only embodies a principle
of joint liability.
3. The distinction between criminal
conspiracy under Section 120-A and
common intention under Section
34, IPC may further be illustrated by
an illustration, Suppose A who plans
to commit a dacoity in P’s house
invites his four friends to participate
in the commission of this offence in
exchange of a lucrative pecuniary
return of and they agree to assist
him in the plan. Here all the
accused will be guilty of criminal
conspiracy under Section 120-A and
not under Section 34 or 149 of IPC.
 Offences Against State Section 121 to 130
Waging war against the state:
Waging, or attempting to wage war, or abetting waging of war, against the
Government of India. According to Section 121: “Whoever, wages war against
the Government of India, or attempts to wage such war, or abets the waging of
such war, shall be punished with death or imprisonment of life and shall also be
liable to fine.
Section 121 to 130 of the Indian Penal Code, contain provisions relating to
offence against the State which may broadly be placed under the following sub-
heads:
(i) Waging war or abetting of war against the State, that is Government of
India (Section 121, 121-A, 122 and 123).
(ii) Assaulting President, Governor etc., with intent to compel or restrain the
exercise of any lawful power(Section 124).
(iii) Sedition(Section 124-A).
(iv) Waging war against any Asiatic Power in alliance with the Government of
India(Section 125)or committing depredation on territories of power at
peace with the Government of India(Section 126); and
(v) Aiding escape of, rescuing or harbouring State Prisoners or Prisoners of
War from lawful custody (Section 130).
Waging or attempting to wage war or abetting it has been considered to be a
serious offence under section 121 and it is made punishable with sentence of
death or life imprisonment.
Ingredients: The following are the ingredients of the Section
(1) The accused waged or attempted to wage war or abetted the waging of
war, and
(2) That such war was against the Government of India.

(1) Waging War: Any person taking part in organised armed attack on the
constitutional authorities and the object of attack being subversion of
Government and the establishment of another in its place, would be guilty of
the offence of waging war. This offence may be committed by citizens or
foreigners.
In Maganlal Radhkrishan V. Emperor, AIR, 1946, the following characteristics
of the offence were pointed out:
(1) No specific number of persons is necessary to constitute this offence.
(2) the number of persons concerned and the manner in which they are
equipped is immaterial;
(3) The true criterion is “Quo Animo”, did the gathering assemble ?
(4) The object of the gathering must be to attain by force and violence an
object of a general public nature thereby striking directly against the
King’s authority.
(5) There is no distinction between principal and accessory and everyone
who takes part in the unlawful act incurs the same guilt.
2. Abets the Waging of War: Abetment of waging war is made a special
offence. It is not essential that as a result of the abetment the war should
in fact be waged.
In Mohd. Arif v. State(NCT Delhi), 2011, the trial court had awarded death
sentence to appellant Mohd. Arif alias Ashraff, for the offence under Section 121
of IPC for waging war against the Government of India. Similarly, he was
sentenced to death for the offence under section 120-B, read with Section 302
IPC for committing murder of Army Naik Ashok Kumar, Uma Shankar and
Abdullah thakur inside the Red fort on December 22, 2000. the High Court
concurred with the finding of the trial Court and confirmed the death sentence
as there were no mitigating circumstances justifying lesser punishment.
Section 121-A, deals with two kinds of conspiracies:
(1) Conspiring within or without India to commit any of the offences punishable
by Section 212.
(2) Conspiring to overawe by means of criminal force, or the show of criminal
force against Central Government or any State Government
Such offences shall be punished with imprisonment for life, or with imprisonment
of either description which may extend to ten years, and shall also be liable to
fine.
The expression conspiring to overawe government by means of criminal force
or the show of criminal force was interpreted by the Kerala High Court, in the
case, Arbind v. State 1993, the Court observed that the word “overawe”
means something more than the mere creation of apprehension, alarm or
fear. It connotes the creation of a situation in which the government feels
itself compelled to choose between yielding to force or exposing itself for
members of the public to very serious danger.
Collecting arms, etc., with intention of waging war against the Government of
India: According to Section 122: Whoever collects men, arms or ammunition
or otherwise prepares to wage war with the intention of either waging or
being prepared to wage war against the Government of India, shall be
punished with imprisonment for life or imprisonment of either description for
a term not exceeding ten years, and shall also be liable to fine.
Section 123: Concealing with intent to facilitate design to wage war: the
following are the essentials of this section:
(1) The existence of a design to wage war against the Government of India
(2) Such a design must be within the knowledge of the accused;
(3) The accused must have concealed that design; and
(4) The concealment must have been intended to facilitate the design to
wage war.
This section makes the concealment of design to wage war against the
Government of India by any act or omission, so that, such concealment may
facilitate the waging of such war, an offence.
Section 124, makes it an offence, an assault or attempt to commit assault or
wrongful restraint or attempt or use of criminal force of show of criminal
force committed against the President of India or the Governor of a State,
 Question: What is sedition and explain the ingredients.
Sedition: According to Section 124-A of IPC, “ whoever by words, either spoke or
written, or by signs or by visible representation or otherwise brings or attempts to
bring into hatred or contempt, or excites or attempts to excite disaffection towards
the government established by law in India, shall be punished with imprisonment or
life, to which fine may be added, or with imprisonment which may extent to three
years, to which fine may be added, or with fine.
Explanation 1 – The expressions “dissatisfaction” includes disloyalty and all feelings o
enmity’
Explanation 2 – Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means without exciting
or attempting to excite hatred, contempt or direction, do not constitute an offence
under this section.
Explanation 3- Comments expressing disapprobation of the administrative or the
action of the government without exciting or attempting to excite hatred, contempt or
dissatisfaction, do not constitute an offence under this section.
Ingredients: the following are the two essentials of Sedition:
(1) Bringing or attempting to bring into hatred or contempt or exciting or
attempting to excite dissatisfaction towards the Government of India.
(2) (2) such act or attempt may be done(i) by words, either spoken or
written, or (ii) signs, or (iii) by visible representation.
In Queen v. Jogendra Chandra Bose, CJ Petheram explained
‘dissatisfaction’ to means as a feeling contrary to affection; In other words
dislike or hatred. Disapprobation means simply disapproval. If a person uses
either spoken or written words calculated to create in the minds of the person
to whom they are addressed a disposition not to obey the lawful authority of
the government , or to subvert or resist the authority, If and when the
occasion should arise and if he does so with the intention of creating such
disposition, among his hearers or reader, they will be guilty under the Section.
In Queen v. Balgangadhar Tilak, Strachey J, agreed with the above ruling,
holding that a man must not made or try to make others feel enmity of any
kind towards the Government. Amount and intensity or disaffection is
absolutely immaterial except perhaps in dealing with the question of
punishment.
After coming into force of the Constitution the validity of this section was
considered by the Supreme Court in Ramesh Thapart, AIR 1962 and Brij
Bhusam’s cases. As a result of these two decisions Constitution First
Amendment Act was passed in 1951. There after in Kedar Nath Singh's, case,
AIR, 1962, the validity of this section was again questioned on the ground of
the provisions of this section being in violation of freedom of speech and
expression. The plea was negatived by the Court and the section was held to
be constitutional. The explanation to the section makes it clear that criticism of
public measures or comment on Government action, however strongly worded,
within reasonable limits and consistent with the fundamental right of freedom
of speech and expression is not affected. It is only when the words have the
pernicious tendency or intention of creating public disorder or disturbance of
law and order that the provisions of the section are attracted.
Elements:
1. Exciting dissatisfaction: To Constitute an offence under this section it is not
necessary that one should excite or attempt to excite mutiny or rebellion or
any kind of actual disturbance, it would be sufficient that one tries to excite
feeling or hatred or contempt towards the government.
In Navarag Singh v. Stata o Punjab, 1986, The Propaganda Secretary of the
Gurudwaras in course of his speech gave very high figures of causalities
following Army action in Punjab. He was charged with sedition under Section
124-A of IPC. The High Court of Punjab held that even though the accused had
not directed or incited anyone to commit violence but the tendency of his
Speech was to bring the Government into contempt and here was every
likelihood violence and public disorder erupting as a result of the speech.
2. Attempt: A person may be charged not only with exciting but also with
attempting to excite and both successful and unsuccessful attempts to excite
disaffection were placed on the same footing. So even if a person had only
tried to excite the feeling he could be convicted.
3. Government established by law in India: the expression “Government
established by law in India” includes the executive power in action and does
not mean merely the constitutional framework. It includes the State
Government as well as the Central Government .
4. Various Forms of Excitement: Disaffection may be excited in a number of
ways. Writing of any kind, poem, drama, story, novel or essays may be used
for the purpose of exciting disaffection. But seditious writing, if it remains in
the hands of the author or unpublished does not constitute offence because
publication of some kind is necessary.
5. Liability of Editor’s, etc: the editor of a paper will be liable for unsigned
seditious letters appearing in the newspaper. Where extracts of foreign
newspapers are published as a new item, it may attract the provisions of
this section if such writings are seditious libels.
6. Dramatic Performance: Any dramatic performance likely to excite feelings
of disaffection to the Government may be prohibited by the Government
and persons taking part in any such performance may be punished.
 Offences against public tranquillity
Topic Unlawful Assembly

Questions: 1. What is unlawful assembly?

2. State the ingredients of Unlawful assembly.
3. Write a short notes on Unlawful Assembly.
Section 141 defines what is Unlawful Assembly is : An unlawful assembly is an
assembly of five or more persons if their common object is:
1. To overawe by criminal force:
(a) The Central Government, or
(b) The State Government, or
(c) The Legislature, or
(d) Any public servant in the exercise of lawful power.
2. To resist the execution of law or legal process.
3. To commit mischief, criminal trespass, or any other offence.
4. By criminal force ,
(a) to take or obtain possession of any property, or
(b) to deprive any person of any incorporeal right, or
(c) to enforce any right or supposed right.
5. By criminal force to compel any person.
(a) to do what he is not legally bound to do, or
(b) to omit what he is legally entitled to do.
To elaborate these ingredients:
1. Five or more persons: to constitute an unlawful assembly, there must be
more than four persons that is, five or more persons. They must share the
common object of others. Where more than five are prosecuted for rioting
but some of them are acquitted and those who are convicted are less than
five in number, the conviction is illegal.
2. Common object: The essence of an unlawful assembly is the common
object of the persons forming assembly. The object must be common to all
Those persons who constitute the assembly; that is they should all be aware of
it and must concur in it. The object must be one of those set out in the Sections.
Mere presence in an assembly does not make a person member of unlawful
assembly nor an assembly of five or more persons cannot be called an unlawful
assembly if its object is to defend property by the use force within the limits
prescribed by the law. The object of unlawful assembly is defined in the
following clauses attached to this Section 141 of IPC:
1. In order that this section may apply , it is necessary that the assembly should
have had the common illegal object to overawe by criminal force the
Government , the legislature or the Public Servant etc.
2. Under this clause, the act resisted must be to resist the execution of legal
act or legal process. The execution of any law means the carrying out of the
provision of law or the enforcement of any act warranted by law. For
example, Where a number of persons resisted an attempt to search a house
which was being made by officer, who did not have the power and authority
to do so, this resistance was held to be legal and those involved in resisting
were not guilty of the offence under this section.
3. Although only few offences are specifically enumerated but the words or
other offence used in this clause means that it is intended to include all
offences.
4. This clause aims at punishing the acts because of their injurious
consequences which it is likely to cause to public peace. But it is subject to
the rights private defence of person and property.
5. In order to bring a case under this section it would not be enough to
prove show of criminal force or use of criminal force to take possession of
property, unless the use of force was accompanied by some by criminal
intent.
In Moti Das v. State of Bihar, 1954, the Supreme Court, noted with approval
that an assembly which was lawful in its inception may turn out into an
unlawful assembly by the subsequent acts of its members and without previous
concert among its members provided others forming the assembly have also
acquiesced in such unlawful acts. Illegal acts of one or more members, not
acquiesced in by others , do not make the assembly unlawful.
The Supreme Court in Shivjee Singh v. State of Bihar, 2009, held that assembly
an assembly which is lawful at its beginning can become unlawful in the
course of time. In case, a quarrel started between two person on the Holi
festival day on March 9th 1993. the appellant called his three sons who came
armed with gun and sticks and started throwing stones and brick pieces from
the top of the roof and opened fire causing grievous injuries to three person,
and one person was shot dead. The injured were carried to hospital on
tractor and remained under treatment for about a week. The accused
persons were convicted for perpetrating the crime by common intention and
sentenced under section 302 read with Section 147 of IPC.
According to Section 142, one should either intentionally join knowing that
the assembly is unlawful or continue to be a member after being aware of the
fact that an assembly though not unlawful at its inception has subsequently
turned out to be so. Here continues means physical presence with the
knowledge of unlawful character of the assembly.
Section 143, talks about Punishment: Whoever is a member of an unlawful
assembly, shall be punished with imprisonment of either description for a
term which may extend to six months or with fine or with both.
Section 143 talks about joining unlawful assembly armed with deadly weapons:
the offence under this section is an aggravated from of the offence under
Section 143. greater punishment is prescribed under this section because the
risk to public tranquillity is aggravated by the intention of using force evinced
by carrying arms.
Section 145 aims at punishing the disobedience of any lawful order
promulgated by a public servant. The order, must relate to dispersing an
unlawful assembly.
In the case of Jag Mohan v. State of Orissa, 1977, the person accompanied the
accused to the police station were under a belief that the accused had come to
police station for negotiation release of their leader, whereas in fact, the
accused had abetted the police to rise against the government. The Court held
that in view of the circumstances of the case, it does not appear that the
accompanying persons had knowledge about the object of the accused to
come to the police station, therefore it will not be proper to hold that they had
participated in the common object. They were acquitted of the charges under
section 141/149 of the act.
 Section 149 : Every member of unlawful assembly guilty of offence committed
in prosecution of common object:
The following are the ingredients of this offence under section 149 and it is
divided into two parts:
(1) Some offence must be committed by any member of an unlawful assembly
in prosecution of the common object of that assembly; and
(2) An offence, which the members of that assembly knew to be likely to be
committed in prosecution of the common object.
Distinction between Section 34 and 149
In Virendra Singh v. State of Madhya Pradesh, 2011, the distinction between
section 34 and 149 of IPC was made clear as follow:
When several persons numbering five or more do an act or intend to do it both
sections 34 and 149 IPC may apply. Section 149 IPC is of wider import than
section 34 IPC and in case where section 149 applies a constructive liability
 Distinction between Common Intention and Common Object
Common Intention(Section 34) Common object (Section 149)
1. The number of offenders must be 1. The number of offenders is five
more than one that is, two or or more.
more.
2. It does not create specific and 2. It creates a specific and
substantive offence, but only substantive offence, punishment
states a rule of evidence. can be imposed solely
Punishment cannot be imposed depending upon Section149.
solely upon Section 34.
3. The object under Section 149
3. The intention under Section 34 must be one of the objects
may be of any intention . mentioned under Section 141.
4. Prior meeting of minds is 4. Prior meeting of minds is not
necessary. necessary.
Common Intention Common Object
5. It requires that all the accused Mere membership of unlawful
must meet together before assembly at the time of
actual attack participated by commitment of crime is
all takes place. sufficient.

It is constructive liability.
6. It is joint liability.
7. Only offence committed in
furtherance of common Members of unlawful assembly
are not only labile to the acts
intention is punishable. done in prosecution of common
intention to be done with
unlawful object, but its
consequence offences.
 Topic: Rioting and Affray
Question: Distinguish ‘rioting from ‘affray’.
Section 146, defines what is Rioting under IPC as: “Whenever force or violence
is used by an unlawful assembly , or by any member thereof, in prosecution of
the common object of such assembly, every member of such assembly is guilty
of the offence of rioting.
A riot is simply an unlawful assembly, in a particular state of activity, that activity
being accompanied by the use of force or violence. It is only the use of the force
that distinguished rioting from an unlawful assembly. The word ‘riot’ is a term of
art and to popular belief a riot may involve no noise or disturbance of the
neighbours though there must be some force or violence.
Ingredients: the following are the ingredients of the offence of rioting:
1. The accused persons must be five or more in number and form an unlawful
assembly;
2. The accused must be animated by a common object;
3. The force or violence must be used by the unlawful assembly or any
member therefore in prosecution of the common object.
Force is defined in section 349 of IPC and it has been used here in that sense. It
is restricted to force used against persons only. Even slightest use of force by
any member of an unlawful assembly, if proved to be unlawful, constitutes
rioting. But force must have been used in prosecution of the common object of
the assembly.
In a Sudden quarrel, if the number of persons assembled for any lawful
purpose suddenly quarrel without any previous intention or design they would
not be liable for rioting.
Difference between riot and unlawful assembly: if the parties assemble in a
tumultuous manner and actually execute their purpose with violence, it is a
riot, but if they merely meet upon a purpose which, if executed would make
them rioters and, having done nothing, they separate without carrying their
purpose into effect, it is an unlawful assembly. It is only the use of force that
distinguishes rioting from an unlawful assembly.
 Punishment for rioting: According to Section 147, Whoever is guilty of rioting,
shall be punished with imprisonment of either description for a term which may
extend to two years or with fine or with both and according to section 148,
whoever is guilty of rioting being armed with a deadly weapon or with anything
which, used as a weapon of offence, is likely to cause death, shall be punished
with imprisonment of either description for a term which may extend to three
years, or with fine, or with both.
Cases: 1. In Rahunath Rai case, 1892, several Hindus acting in concert, forcibly
removed an ox and two cows from the possession of a Mohammedan, not for
the purpose of causing ‘wrongful gain’ to themselves or ‘wrongful loss’ to the
owner of the cattle, but for the purpose of preventing the killing of the cows.
They were held guilty of rioting.
2. The Supreme Court in Budhwa v. State, 1990, upheld the conviction of four
accused out of a total of fifteen on the ground that there was sufficient evidence
against them regarding active participation in the crime in pursuance of the
common object of unlawful assembly, of which they were members, therefore,
they were rightly convicted of the offence under Section 146 of IPC.
 Topic: Affray
Section 159 defines what is Affray, “When two or more persons, by fighting in a
public place disturb the public peace, they are said to “commit an affray”.
The word ‘affray’ is derived from the French word ‘affraier’ which means to
terrify. In law it means a public offence to the terror of the people. The gist of
the offence lies in the terror it is likely to cause to the public. According to
Blackstone, a fighting between two or more persons in a public place to the terror
of His Majesty's subjects is affray in English law.
Ingredients: the following are the ingredients of this offence:
(i) Two or more persons must fight;
(ii) They must fight in a public place;
(iii) By their fighting they must disturb the public peace.
(iv) Some fight at public place is necessary to constitute the offence. Mere
exchange of abusive, threatening or hot words, however violent, without
exchange of blows does not amount to fight. The fighting means a quarrel
accompanied by use of a little force. And also cases in which when member of
one party beat the members of another party and the latter do no retaliate,
there is no fighting and therefore, no affray.
In order to constitute the offence of an affray, there must not only be fighting
in a public place but such fighting must also cause the disturbance of public
peace.
In the case of, Jagannath Sah,1930, two brothers were quarrelling and abusing
each other in a public road in a town and a large crown gathered and the traffic
was jammed but no actual fight took place. It was held that no affray was
committed in absence of actual fighting.
The punishment for Affray is prescribed in section 160 of IPC, is only a term of
imprisonment up to one month or a meagre fine of Rs 100 or with both.
Distinction between Affray and Assault: the two are different in the following
ways:
 Distinction between Common Intention and Common Object
Common Intention(Section 34) Common object (Section 149)
1. The number of offenders must be 1. The number of offenders is five
more than one that is, two or or more.
more.
2. It does not create specific and 2. It creates a specific and
substantive offence, but only substantive offence, punishment
states a rule of evidence. can be imposed solely
Punishment cannot be imposed depending upon Section149.
solely upon Section 34.
3. The object under Section 149
3. The intention under Section 34 must be one of the objects
may be of any intention . mentioned under Section 141.
4. Prior meeting of minds is 4. Prior meeting of minds is not
necessary. necessary.
Common Intention Common Object
5. It requires that all the accused Mere membership of unlawful
must meet together before assembly at the time of
actual attack participated by commitment of crime is
all takes place. sufficient.

It is constructive liability.
6. It is joint liability.
7. Only offence committed in
furtherance of common Members of unlawful assembly
are not only labile to the acts
intention is punishable. done in prosecution of common
intention to be done with
unlawful object, but its
consequence offences.
 Offence relating by or Relating to Public Servants
Question: 1. Explain the provisions of Indian Penal Code, relating to the
offences by or relating to a public servant.
Section 166 to 171 deals with offence relating by or relating to Public Servants,
they are
1. According to Section 166, A public servant who wilfully disobeys a law with
the intention of cause injury to any person shall be punishable under this
Section. However, mere disobedience of any departmental rules or regulations
will not be punishable under this section as they do not have the force of law.
The expression ‘Public servant’ used in this section has the same meaning as
defined in Section 21 of the IPC.
The offence under this section is non-cognizable, bailable and non-
compoundable and is triable by Magistrate of the First Class. The disobedience
of an injunction order of a Court is not covered within the ambit of this section,
because it is a case of contempt of court for which contempt proceeding is the
proper forum. Under this section he shall be punishable with simple
imprisonment for a term which may extend to one year, or with fine, or with
both.
Illustration: A, being an officer directed by law to take property in execution, in
order to satisfy a decree pronounced in Z’s favour by a Court of Justice,
knowingly disobeys that direction of law, with the knowledge that he is likely
thereby to cause injury to Z. A has committed the offence defined in this
section.
2. Section 166-A, Public servant disobeying direction under law, whoever being a
public servant according to clause (a) of Section 166-A: a public servant who
knowingly disobeys any direction of law which prohibits him from requiring the
attendance at any place of any person for the purpose of investigation into an
offence or other matter shall be punished.
And according Clause (b) provides that when a public servant knowingly disobeys
to the prejudice of any person any other direction of the law regulating the
manner in which he shall conduct such investigation shall also be punishable.
According to clause ( c) of section 166-A, as amended by the Criminal Law
(Amendment) Act, 2013, makes refusal to register an FIR as a cognizable and
bailable offence where the information reveals the commission of any of the of
the following offences under the Indian Penal Code:
1. Voluntary causing grievous hurt by use of acid.
2. Voluntarily throwing or attempting to throw acid.
3. Assault or use of criminal force to woman with intent to outrage her modestly.
4. Assault or use of criminal force to woman with intent to disrobe her,
5. Trafficking of persons.
6. Exploitation of trafficked child.
7. Rape
8. Person committing an offence of rape and inflicting injury which causes death or
causes the woman to be in a persistent vegetative state.
9. Sexual intercourse by husband upon his wife during separation.
10. Sexual intercourse by a person in authority.
11. Gang-rape.
12. Repeat offenders.
13. Uttering any words or making any gesture intended to insult the modesty of a
woman etc,..
The supreme court observed that insertion of Section 166-A was in the light of
recent unfortunate occurrences of offences on against women.
4. The newly added Section 166-B, of the Indian penal Code deals with
punishment for non-treatment of a victim: It punishes any person in charge of a
hospital whether the hospital is a public or private and whether it is run by
Central or State government.
5. Section 167, deals with Public Servant framing an incorrect record or writing
with intent to cause injury: Whoever, being a public servant, frames incorrect
document with the intent to cause injury will be punishable under this section.
In Krishna Govind Patel v. State of Maharashtra, AIR, 1973, the accused a forest
official made entries showing underestimation and under-valuation in records
with respect of the number of trees actually fell and included even the trees
which were illegally fell, with knowledge that it is going to cause huge wrongful
loss to the Government, the Supreme Court upheld his conviction under
Section 167.
6. Public Servant unlawfully engaging in trade: Section 168: this section aims at
prohibiting the public servants from indulging in any trade or business during
their service tenure, so that they may not misuse their position for obtaining
unfair benefits or advantages. The word ‘trade’ in narrowest sense means
“exchange of goods for goods or for money with the object of making profit” and
in its widest sense means “any business with a view to earn profit”.
7. Public Servant unlawfully buying or bidding for property: Section 168: This
section is mere extension of the preceding section which prohibits a public
servant from purchasing or bidding for property which he legally is bound not to
purchase in his own name or in the name of another jointly.
The sections 166 to 169 imposes criminal liability on a public servant if he does
certain prohibited acts specified these sections.
8. Personating a Public Servant: Section 170: According to this Section, a person
who does not hold a public office , but falsely pretends and personates any other
person holding such office and does or attempts to do any act under colour of
such office shall be punishable under this section.
9. Wearing garb or carrying token used by a pubic servant with fraudulent intent:
Section 171: according to this section, any person who wears garb or caries
token used by a public servant with fraudulent intent is punishable under this
section. The knowledge, of the person that he is personating as pubic servant
who he is actually not, is the essential ingredient of the offence under this
section and it should be with the intention that he should be believed to be
belonging to that category of public servant whose garb he wearing or whose
token he is carrying.
Topic: Offences relating to Elections
Question: Write a note on election offences.
Section 171 to 171 –I, defines the offences relating to Elections:
Section 171-A defines who is a Candidate and what is a Electoral right.
Candidate means a person who has been nominated as a candidate at any
election. It includes a person who holds himself out as a prospective candidate in
the election, provides he is subsequently nominated as a candidate at such
election. And Election right means the right of a person to stand or not to stand
as a candidate in an election or to withdraw from such election or to vote or
refrain from voting at an election.
Offences relating to Elections:
1. Section 171 –B: Bribery: It means the taking or giving of a gratification as a
motive or a reward to any person weather to induce him to stand , or not stand,
or to withdraw from being a candidate or to vote or to refrain from voting at an
election To know whether a particular act is a bribery or not, it should be seen
whether the gratification satisfies his personal motive and is of some value to
him.
2. Section 171-C: Undue influence of elections: This section defines undue
influence at elections. It means voluntary interference or attempted
interference with the right of any person to stand, or not stand as, or withdraw
from being, a candidate, or to vote or refrain from voting, commits the offence
of undue influence.
3. Sections 171-D to 171-I, makes the following as offences under IPC:
(a) Personation at elections: in this section, any person who attempts to vote in
another person’s name or in a fictitious name, or one who attempts to vote
twice or one who abets with a corrupt motive, will be guilty of personation.
(b) Punishment for Bribery: If any person commits the offence of bribery, then
he will be punished with imprisonment up to one year or fine of both. If
the bribery is in the form of food, drink , entertainment, then it is punishable
with fine only other wise the offence is non-cognizable, bailable and non-
compoundable , triable by first class magistrate.
(c) False statement in connection with an election: this section punishes false
statement of fact in relation to the personal character or conduct of a
candidate.
(d) Failure to keep election accounts: Failure to keep accounts of election
expenses is punishable under this Section. If such accounts are required to be
kept by any law or rule having the force of law.

Topic: Of contempt's of the Lawful authority of Public servants

Question: Write short note on – “contempt of the lawful authority of public
servant”?
Sections 172 to 190, makes the following as offences of Contempt's of the
lawful authority of Public Servants:
1. Absconding to avoid service of summons or other proceedings: Whoever
absconds in order to avoid being served with a summons, notices or order
proceeding from any public servant legally competent, shall be punished with
simple imprisonment which may extent to one month.
2. Preventing service of summons or other proceeding, or preventing
publication thereof: Whoever in any manner intentionally prevents the
serving on himself, or on any other person, of any summons, notices or
proceeding from any public servant competent, shall be punishable with
simple imprisonment for a term which may extend to six months with or
without fine.
3. Non-attendance in obedience to an order from Public servant: Whoever,
being legally bound to attend in person or by an agent at a certain place and
time in obedience to a summons , notice , proclamation or order proceeding
from any public servant legally competent, but intentionally omits to a attend
the same shall be punishable with simple imprisonment.
4. Omission to produce document or electronic record to public servant by
person legally bound to produce it: Whoever is legally bound to produce or
deliver up any document or record, to any public servant, as such,
intentionally omits so to produce or deliver up the same shall be punishable
with simple imprisonment .
5. Omission to give notice or information to Public Servant by person legally
bound to give it: Whoever, being legally bound to give any notice or to
furnish information on any subject to any public servant , as such
intentionally omits, them he shall be punished with simple imprisonment
for a term which may extent to one month or with fine which may extend
to five hundred rupees, or with both.
6. Furnishing false information: Whoever, being legally bound to furnish
information on any subject to any public servant, as such, furnishes, as
true, information on the subject which he knows or has reason to believe
to be false, shall be punishable with simple imprisonment for a term
which may extend to six months.
The following offences also will pe punishable with simple imprisonment for
one moths or six months depending on the gravity of offence:
7. Refusal to sign statement.
8. False statement on oath or affirmation to public servant or person
authorised to administer an oath or affirmation
9. False information, with intent to cause public servant to use his lawful power
to the injury of another person.
10. Resistance to the taking of property by the lawful authority of a Public
servant.
11. Illegal purchase or bid for property offered for sale by authority of public
servant.
12. Obstructing public servant in discharge of public functions
13. Omission to assist public servant when bound by law to give assistance.
14. Disobedience to order duly promulgated by Public servant: and such
disobedience causes or tends to cause, obstruction, annoyance or risk of it, or
danger to human life, health or safety or a riot or affray, shall be punishable.
15. Threat of injury to public servant .
16. Threat of injury to induce person to refrain from applying for protection to
public servant: Whoever holds out any threat of injury to any person for the
purpose of inducing that person to refrain or desist from protection against
any injury to any public servant legally empowered as such to give such
protection shall be punishable with a imprisonment, which may extent to one
year.
Chapter: Of false evidence and offences against pubic justice
Question: What is giving false evidence and fabricating false evidence?
This chapter comprises total 39 sections, that is Sections 191 to 229 and the
offences contained in these sections may broadly be placed in two categories, as
follows:
(1) Offences of giving or fabricating false evidences, Sections 191 to 200, and
(2) Offences against public justice, Sections 201 to 229:
I Section 191: Giving false evidence: Whoever, being legally bound by an oath
or by an express provision of law, to state the truth, or being bound by law to
make a declaration upon any subject makes any statement which is false, and
which he either knows or believes to be false or does not believe to be true, is
said to give false evidence.
Explanation 1: A Statement is within the meaning of this section, whether it is
Made verbally or otherwise.
Explanation 2: a false statement as to the belief of the person attesting is
within the meaning of this section, and a person may be guilty of giving false
evidence by stating that he believes a thing which he does not believe, as well
as by stating that he knows a thing which he does not know.
Giving false evidence, Section 191: the ingredients of the offence under this
section are:
1. A person must be legally bound:-
(a) by an oath, or any express provision of law, to state the truth; or
(b) to make a declaration upon any subject.
(2) He must make a false statement.
(3) He must:-
(a) know or believe it to be false, or
(b) not believe it to be true.
Illustrations: 1. A, being bound by an oath to state the truth, states that he
believes a certain signature to be the handwriting of Z, when he does not
believe it to be so. Here A states that which he knows to be false and
therefore gives false evidence.
2. A, an interpreter or translator, gives or certifies as a true interpretation or
translation of a statement or document, which he is bound by oath to
interpret or translate truly, that which is not and which he does not believe
to be a true interpretation or translation. A has given false evidence.
Degrees of knowledge: this section deals with three degrees of knowledge:
(i) A statement known to be false ;
(ii) A statement believed to be false; and
(iii) A statement not believed to be true.
The burden of proving falsity of the statement is on the prosecution. The
accused must be established to make a statement which was false or which he
knew to be false or not to have believed it to be true.
Abetment of giving false evidence: One person instigating another to make
a false statement may not be guilty of giving false evidence, but will be guilty
of the abetment of that offence. For example, A person asking , a witness
to suppress certain facts in giving his evidence would be guilty of abetment
under this section.
Cases: 1. Baban Singh V. Jagdish Singh, 1967, It was held by the Supreme
Court that where a false affidavit is sworn by a witness in a proceeding
before a Court, the offence would fall under sections 191. It is the offence
of giving false evidence or of fabricating false evidence for the purpose of
being used in a judicial proceeding.
2. K.T.M.S. Mohd. V. Union of India, 1992, the Supreme Court reiterated that
mere fact that a deponent has made contradictory statement at two
different stages of judicial proceedings not by itself always sufficing to
justify prosecution for perjury under section 191/193, IPC, but it must be
established that the deponent has intentionally given a false statement on
oath.
II Section 192: Fabricating false evidence: Whoever causes any circumstances
to exist or makes any false entry in any book or record or electronic record or
makes any document or electronic record containing a false statement,
intending that such circumstance, false entry or false statement may appear in
evidence in an judicial proceeding, or in a proceeding taken by law before a
public servant as such, or before an arbitrator, and that such circumstance, false
entry or false statement, so appearing in evidence , may cause any person
which in such proceeding is to form an opinion upon the evidence, to entertain
an erroneous opinion touching any point material to the result of such
proceeding, is said “to fabricate false evidence”.
Ingredients: the following are the ingredients of this offence:
1. Causing any circumstance to exist, or making any false entry in any book or
record, or making any document containing a false statement.
2. Doing one of the above acts with the intention, that it may appear in
evidence in a judicial proceeding or in proceeding taken by law before a
public servant or an arbitrator.
3. Doing such act with the intention that it may cause any person who in such
Proceeding is to form an opinion upon the evidence, to entertain an
erroneous opinion touching any point material to the result of such
proceeding.
The essence of this offence consists in endeavour to injure another by
supplying false data upon which a judicial decision may rest.
Illustrations: 1. A puts jewels into a box belonging to Z, with the intention
that they may be found in that box, and that this circumstance may cause Z
to be convicted of theft. A has fabricated false evidence.
2. A makes a false entry in his shop-book for the purpose of using it as
corroborative evidence in a Court of Justice. A has fabricated false
evidence.
3. A, with the intention of causing Z to be convicted of a criminal conspiracy,
writes a letter in imitation of Z’s handwriting, purporting to be addressed
to an accomplice in such criminal conspiracy, and puts the letter in a
place which he knows that the officers of the police are likely to search. A
has fabricated false evidence.
This section is not confined to judicial proceeding only, it applies equally to a
proceeding taken by law before a public servant but such proceedings must be
legal and authorised by law. Similarly an arbitrator is a judge appointed by the
parties to adjudicate upon a matter in controversy between them. Therefore
his proceeding are also judicial.
Cases: 1. In Dr. S. Dutt v. State of U,P., 1966, the accused had deposed an
expert in Criminology holding a Diploma from the Imperial College of Science
and Technology, London. During his examination as an expert, he was asked to
produce the certificate, which was found to be false. He was held guilty of an
offence under Section 192/196, IPC as he had produced the document before
the Court intending that the Court may for an erroneous opinion about him as
an expert in Criminology which he in fact was not.
In one more case, B instigated C to personate D and to purchase in D’s name a
stamped paper, in consequence of which the vendor of the stamped paper
endorsed D’s name on the paper as the purchaser of it. B acted with the
intention that such endorsement might be used against D in a judicial
proceeding. It was held that B was liable for abetment of fabricate false
evidence.
It was held in Maharashtra State Electricity Distribution Co. Ltd. V. Datar
Switchgear Ltd., 2011 that wherever by a legal fiction the principle of vicarious
liability is attracted and a person who is otherwise not personally involved in
the commission of an offence is made labile for the same.
Punishment for false evidence : section 193: Whoever intentionally gives false
evidence in any stage of a judicial proceeding or fabricates false evidence for
the purpose of being used in any stage of a judicial proceeding, shall be
punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case
shall be punished with imprisonment of either description for a term which
may extend to three years, and shall also be liable for fine.
Explanation 1: A trial before a Court-martial is a judicial proceeding.
Explanation 2: an investigation directed by law preliminary to a proceeding
before a Court of Justice, is a stage of a judicial proceeding though that
investigation may not take place before a Court of Justice.
Illustrations: A, in any enquiry before an officer deputed by a Court of justice,
to ascertain on the spot the boundaries of land, makes on oath a statement
which he knows to be false. As this enquiry is a stage of a judicial
proceeding, a has given false evidence.
Aggravated forms of giving false evidences and Fabrication of False
evidences:
• Section 194, talks on giving or fabricating false evidence with intent to
procure conviction of capital offence. In this section an aggravated form
of offence of giving or fabricating false evidence under section 193 is made
punishable. If a person gives or fabricates false evidence intending thereby
to cause some person to be convicted of a capital offence, commits an
offence under this section. The second para of the section provides for
more sever punishment if an innocent person is convicted and executed in
consequence of such false evidence.
In Darshan Singh v. State, 1985, the court of Session convicted the accused
person for murder of a man. During the pendency of the appeal, the
allegedly murdered man presented himself before the High Court, which
obviously resulted into acquittal of the accused. The Police Inspector who
had investigated the case along with two Sarpanches, and other prosecution
witness were presented under Section 194, IPC read with section 340 of Cr.P.C.
• Section 195, elaborates Giving or fabricating false evidence with intent to
procure conviction of offence punishable with imprisonment for life or 10
imprisonment: In this section, if a person gives or fabricates false evidence
intending thereby to cause some person to be punished with imprisonment for
life or imprisonment for a term for seven years or upwards, he shall be
punished. This section is similar to the preceding section except as regards
the gravity. .
• A new Section 195-A has been inserted in IPC in the year 2006, the offence
under this section is cognizable, non-bailable and triable by the Court by which
offence of giving false evidence is triable and is non-compoundable.
• Section 196, talks on using evidence known to be false: In this section a person
who uses evidence known to be false shall be punished .
• Section 197, is about, issuing or signing false certificates : Under this section,
If a person issued or signs certificate, he is put on the same footing as the
offence of giving false evidence. The certificate must, however , be false in
material point.
This section consists of two ingredients, namely :
(1) Issuing or signing of a certificate.
(a) required by law to be given or signed, or
(b) relating to a fact of which such certificate is by law admissible in
evidence.
(2) Such certificate must have been issued or signed knowing or believing that
it is false in any material point.
• Section 198: Corruptly using a certificate known to be false is punishable as if
he gave false evidence.
• Section 199: False statement in declaration which is by law receivable as
evidence is punished as if he gave false evidence.
• Section 200: Using as true any declaration knowing it to be false shall be
punished in the manner as if he gave false evidence.
• Section 201: any person who knows or has reason to believe that an offence
has been committed, omits to give any information regarding that offence
which he is legally bound to give, he shall be punished with imprisonment for 6
months or fine or both.

III Giving False Information: According to Section 203, any person knowing or
having reasons to believe that an offence has been committed, gives any
information regarding that offence which he knows or believes to be false, shall
be punished with imprisonment for two years or fine or both.
Essentials:
1. An offence must have bee committed.
2. The accused should know or believe that such offence has been committed.
3. The accused must have given information regarding the offence.
4. The information must be false.
5. At the time of giving information he should know that it was false.

IV Harbouring Offenders: According to section 212, when an offence has been

committed, any person who harbours or conceals a person whom he knows to
be an offender or has reason to believe to be an offender, for protecting him
from punishment, is said to arbour an offender;
Essentials or elements:
1 There must be an offender.
2 He should have committed an offence.
3 The accused must have concealed or harboured the offender knowing that
he is an offender .
This section is not applicable to a husband who harbours his wife or the wife
who harbours her husband.
The difference between Giving false evidence and Fabricating False evidence are:
‘Giving False Evidence’ Section 191 ‘Fabricating False Evidence’ section 192
(1) In case of giving false evidence, (1) Whereas in fabricating false
only general intention is sufficient. evidence, particular intention is
necessary.
(2) fabrication under section 192
(2) It is not necessary to relate the must relate to some point
false evidence to some point material to the proceedings.
material to the proceedings . (3) A charge of fabricating false
(3) But it is immaterial in case of giving evidence under section 192 is
false evidence. more serious and grave, as
compared to giving false
evidence, in the sense that a
person under the former charge
may incur penalty even though
no injury has been caused to
any person thereby.
Giving False Evidence’ Section 191 Fabricating False Evidence’ section 192
(4) In fabrication of false evidence, the
effect thereof should lead the
court or officer concerned to form
an erroneous opinion touching
some material point.
(5) False evidence is given by a person (5) Whereas there is no such pre-
condition in case fabrication of
who is bound by oath or an false evidence under Section 192,
affirmation. IPC.
(6) But, under section 192 it is enough
(6) Under Section 191, a proceeding, if there is a reasonable possibility
judicial or non-judicial must be pending of commencement of such
proceeding, keeping in view the
or in existence at the time when the circumstances of the case and the
offence is committed. fabricated evidence is intended to
be used in such a proceeding.
Punishment: if the offence committed by the offender is punishable with death,
then the person concealing him is punishable with imprisonment up to five years
and also fine. If the offence committed is punishable with imprisonment for life or
ten years, the person concealing him is punishable with imprisonment up to three
years and also fine.

Topic: Offences relating to coins and Government Stamps:

Sections, 230 to 240 & 263A; deal with Counterfeiting coins and Government
Stamps: in this regards the important points are:
I Counterfeiting Coin: According to Section 231, Whoever counterfeits or
knowingly performs any part of the process of counterfeiting coin, shall be
punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
Explanation: A person commits this offence who intending to practice deception,
or knowing it to be likely that deception will thereby be practised, causes a
genuine coin to appear like a different coin.
The offence under this section is cognizable, non bailable and non-compoundable.
 Coins are defined by Section 230 , means, Coins is metal used for the
time being as money and stamped and issued by the authority of some State or
Sovereign Power in order to be so used.
The following are also offences under this chapter.
1. Possession of instrument or material for the purpose of using the same for
counterfeiting coin.
2. Abetting in India the counterfeiting out of India of coin.
3. Import or export of counterfeit coin.
4. Delivery of coins, possessed with knowledge that it is counterfeit.
5. Delivery of Indian coin, possessed with knowledge that it is counterfeit.
6. Delivery of coin as genuine which when first possessed the deliverer did not
know to be counterfeit.
7. Possession of counterfeit coin by person who knew it to be counterfeit
when he became possessed thereof.
8. Possession of Indian coin by person who knew it to be counterfeit when he
became possessed thereof, and so on.

II Counterfeiting of Government stamps: According to section 255, Whoever

counterfeits, or knowingly performs any part of the process of counterfeiting,
any stamp issued by government for the purpose of revenue, shall be punished
with imprisonment for life, or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable for fine.
Explanation: A person commits this offence, who counterfeits by causing a
genuine stamp of one denomination to appear like a genuine stamp of a
different denomination.
The offence under this section is cognizable, non-bailable and non-
compoundable and triable by Court of Session.
III Prohibition of fictitious stamps: (1) Whoever:
(a) makes, knowingly utters, deals in or sells any fictitious stamp, or knowingly uses
for any postal purpose any fictitious stamp, or
(b) Has in his possession, without lawful excuse, any fictitious stamp, or
(c) Makes or, without lawful excuse, has in his possession any dye plate, instrument
or material for making any fictitious stamp.
Shall be punishable.
Chapter: Offences relating to religion: Section 295 -298.
This chapter on offences relating to religion consists of five sections making
interference with the religion of other a punishable offence. These offences are as
follows:
(1) Injuring or defiling place of worship with intent to insult the religion of any class –
Section 295.
Deliberate and malicious acts, intended to outrage religious feelings of an class by
insulting it is religion or religious faith - Section 295-A(3) Disturbing religious
assembly- Section 296.
(4) Uttering words, etc. with deliberate intent to hurt the religious feeling of any
person: Section 298.
1. Section 295: Injuring or defiling place of worship with intent to insult
the religion of any class: In this section a person who intentionally insults
the religion of any class of defiles any place of worship shall be punished.
The object of this section is to prevent those persons who intentionally
wound the religious feelings of others by injuring or defiling a place or
worship.
Ingredients: The section requires two things to constitute an offence:
1. destruction, damage or defilement of
(a) any place of worship or
(b) any object held sacred by a class of persons.
2. Such destruction, etc., must have been done:
(i) With the intention of insulting the religion of a class of persons, or
(ii) With the knowledge that a class of persons is likely to consider such
destruction etc., as an insult to their religion.
2. Section 295-A: Deliberate and malicious acts intended to outrage religious feelings
of ay class by insulting its religion or religious beliefs: Whoever, with deliberate
and malicious intention or outraging the religious feelings of any class of citizens of
India, by words either spoken or written, or by signs or by visible representations
or otherwise, insults or attempts to insult the religion or the religious beliefs of
that class, shall be punished with imprisonment of either description for a term
which may extend to three years or with fine, or with both.
3. Section 296: Disturbing religious assembly: Whoever, voluntarily causes
disturbance to any assembly lawfully engaged in the performance of religious
worship or religious ceremonies, shall be punished with imprisonment, which may
extend to one year.
4. Section 297: Trespassing on burial places etc: This section Punishes a person who
trespasses on burial places or on places of sepulchre. The essence of the section is
an intention, or knowledge of likelihood, to would feeling or insult religion and
when with that intention or knowledge trespasses on a place of sepulchre,
indignity to a corpse, or disturbance of persons assembled for funeral ceremonies ,
is committed the offence under this section is complete.
5. Section 298: Uttering words etc., with deliberate intent to wound the
religious feelings of any person: Whoever, with the deliberate intention to
wound the religious feelings of any person, utters any word or makes any
sound in the haring of that person or makes any gesture in the sight of that
person or places, any object in the sight of that person, shall be punished
with imprisonment of either description for a term which may extend to one
year or with fine, or with both.
 Unit 3
Chapter: Offences affecting human life: (section 299 to 311).
This chapter relating to offences affecting Human Body starting from section 299
to 377, IPC is the largest chapter under the Code. It consists of 78 sections. It
clearly indicates the importance attached to the preservation and protection of
right to life and liberty , the two most precious rights guaranteed under Article
21 of the Constitution.
I Offences affecting Life (section 299 to 318, IPC).
1. Homicide:
(i) Culpable Homicide(section 299, 304, IPC)Manslaughter Under English Law).
(ii) Murder(Sections 300, 302,IPC).
(iii) Culpable Homicide not amounting to murder(Exceptions 1 to 5 to murder)
(a) Provocation (exception 1 to 300, IPC).
(b) Private Defence (Exception 2 to Section 300, IPC).
(c) Exercise of Legal Power (Exception 3 to section 300, IPC).
(d) Sudden fight (Exception 4 to section 300, IPC).
 (e) Consent (Exception 5 to Section 300, IPC).
(iv) Culpable Homicide by causing death of person other than person whose
death was intended(Section 301, IPC).
(v) Causing death by negligence(section 304A, IPC).
(vi) Dowry death(Section 304B, IPC).
(vii) Abetment of suicide and attempt to murder and suicide(sections 306 to
309, IPC).
(viii)Thug (Sections 310 and 311, IPC).
2. Miscarriage and Injuries to Unborn Children (sections 312 to 316, IPC).
3. Exposure and Abandonment of child under 12 years and concealment of
birth by secret disposal, etc. (317 and 318, IPC).

II Hurt(Sections 319-338,IPC).
III Wrongful Restraint and Wrongful confinement (Sections 399-348, IPC).
IV Criminal Force and Assault (Section 349-354, 354A, 354B, 354C, 354D, 355
to 358).
V. Kidnapping, Abduction, Slavery and forced labour(sections 359 to 374, IPC).
(i) Kidnapping and Abduction (Sections 359 to 363A, 364, 364A to 369).
(ii) Trafficking of persons 370 exploitation of a trafficked person (section
370A).
(iii) Habitual dealing in slave(Sections 371).
(iv) selling or buying a minor for prostitution, etc,(Section 372 to 373, IPC).
(v) Unlawful Compulsory labour(section 374, IPC).
VI Sexual Offences(sections 375 -377, IPC).
(i) Rape (sections, 375, 376,376A, 376B,376C, 376D and 376E, IPC).
(ii) Unnatural offences (sections 377, IPC).
 Topic : Culpable Homicide(section 299)
Questions: 1. Explain the ingredient of the offence of culpable homicide with
illustrations.
2. State the circumstances when culpable homicide does not amount to murder?
Introduction : Homicide is the killing of a human being by a human being. Homicide
may be either:
1. Lawful Homicide, and
2. Unlawful Homicide.
1. Lawful Homicide is further divided into:
(i) Justifiable Homicide: Examples (a) Mistake of fact(Section 76 and
(b) Judicial Act(Section 77)
(ii) Excusable Homicide: Examples (a) Accident(section 80)
(b) Acts of the Child below 7 yrs(Section 82)
2. Unlawful Homicide is further divided under IPC into :
(i) Murder(Section: 300)
(ii) Culpable homicide not amounting to murder; and
(iii) Causing death by negligence(section 304A); and
(iv) Suicide (sections 305 and 306)
Culpable Homicide
Section 299 defines what is Culpable Homicide: ‘Whoever causes death by doing
an act with the intention of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the knowledge, that he is likely
by such act to cause death, commits the offence of culpable homicide.
Explanation 1 –a person who causes bodily injury to another who is labouring
under a disorder, disease or bodily infirmity and thereby accelerates the death
of that other, shall be deemed to have caused his death.
Explanation 2- 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 .
Explanation 3 - the causing of the death of child in the mother’s womb is not
homicide. But it may amount to culpable homicide to cause the death of a living
child, if any part of that child has been brought forth, though the child may mot have
breathed or been completely born.
Illustrations: (a) A lays sticks and turf over a pit, with the intention of causing death
or with the knowledge, that death is likely to be thereby caused Z, believing the
ground to be firm, treads on it, falls in and is killed. A has committed the offence of
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 of no offence, but A has committed the offence
of culpable homicide.
(c) A, by shooting at a fowl 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 of 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.
Ingredients: the following are the essentials of culpable homicide:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act.
3. The act must have been done;
(i) with the intention of causing death, or
(ii) with the intention of causing such bodily injury as to likely to cause
death; or
(iii) with the knowledge that the doer is likely by such act, to cause death.
‘Homicide’ literally means killing of a human being by a human being. The first
kind of unlawful homicide is known as culpable homicide under section 299,
IPC. The word ‘culpable’ denotes blameworthiness or criminal in nature.
Culpable homicide is of two types:
(1) Culpable homicide amounting to murder, or
(2) Culpable homicide not amounting to murder
A murder is merely a particular form of culpable homicide. It is said that every
murder is culpable homicide but every culpable homicide is not murder. Thus
murder is only a specie of culpable homicide which is the genus.
When the accused caused death of a person, the court while finding him guilty
of an act of voluntarily causing hurt, must consider the provisions of section 299
read with Section 304 of IPC. It is important from the jurisprudential point of
view because when an act or omission of the accused causes the death of any
person, he or she is either guilty of culpable homicide or guilty of non-culpable
homicide. It is for the Court to determine on the evidence available, whether, if
it is culpable homicide, amount to murder as explained in section 300 of IPC or
not amounting to murder as explained in Section 304, IPC. If culpable homicide
cannot be proved, then it would fall in the category of non-culpable homicide.
The explanation appended to Section 299 describe three situations when
presence or absence of certain factors in causing death are treated as
committing the offence of culpable homicide.
1. Whoever causes death: Death means death of human being. It does not
include the death of an unborn child, such child in the mother’s womb.
But in view of explanation 3 it may amount to culpable homicide to cause
death of a living child, if any part of the child has been brought forth, though
the child may not have breathed or been completely born.
2. By doing an Act or omission: Whether an act or omission would be
covered by the definition of culpable homicide is to be decided on the basis
of the fact that, if the act done or the omission by the accused has caused
the death of another person and whether death is the direct result of such
act or omission. Death may be caused in any number of ways; such as by
poisoning, starving, striking, drowning , or communicating some shocking
news. Etc, it includes illegal omission also. For instance, where a jailor
voluntarily cause death of a prisoner by omitting to supply him food, or a
nurse voluntarily causes death of a child entrusted to her care by omitting to
take it out of a tub of water into which it has fallen. The jailor or nurse shall
be guilty of murder. But if the jailer omits to give food to a beggar, and if the
beggar dies. Here jailor commits no offence because here beggar has no
other claim on Jailer , than that of humanity.
Death caused by effect of words: Death may also be caused by effect of words
such as by making some communicate to another which caused excitement
which results in death although it would be difficult to prove it the person,
who spoke the words, anticipated from them an affect which except under very
peculiar circumstances.
For example: A with the intention or knowledge aforesaid, relates exciting or
agitating new to B who is in a critical stage of a dangerous illness; B dies in
consequence. A will be liable of culpable homicide. Similarly, A with the
intention or knowledge aforesaid, gives B his choice whether B will kill himself,
or suffer lingering torture; B kills himself by taking poison. A would be liable for
culpable homicide.
3(i) Intention to cause death: Intention means the expectation of the
consequence in question. When a man is charged with doing an act, of which
the reasonable consequences may be highly injurious, the intention is an
inference of law resulting from the doing of the act. Intention is inferred from
the acts of the accused and the circumstances of the case. Thus a deliberate
firing by a loaded gun at one leads to inference that the intention was to cause
death.
The existence of intention is not to be inferred unless death follows as a natural
and probable consequences from the act. For instance, where death is caused
By a blow, which would not cause the death of a healthy person because the
person whose death is caused suffered from a disease, it would not be fair to
infer intention or knowledge. This is so because in such a case the consequence
is not natural or probable consequence of the act done and therefore, it can be
said that in the case the accused never contemplated the result. Here some
extrinsic evidence would be necessary to how the real intent or knowledge in
such a case, to illustrate, the offender was aware of the disease and the blow
was given on the diseased. An intention also includes foresight of certainty.
Intention of causing death is not the intention of causing the death of any
particular person. It can be any person. For illustration : A had the intention or
knowledge of causing somebody’s death , though not of a particular person,
who treads over the turf believing the ground to be firm.
3. (ii) with the intention of causing such bodily injury as is likely to cause death:
The intention of the offender may not be to cause death, it would be sufficient
if he intended to cause such bodily injury which was likely to cause death. The
connection between the ‘act’ and the death caused by the act must be direct
and distinct; and though not immediate it must not be too remote.
 The expression of causing such bodily injury as is likely to cause death’
merely means an intention to cause a particular injury, which injury is, or turn
out to be, one likely to cause death. It is not the death itself which is intended,
nor the effect of injury. It is not necessary that the consequence of the injury,
are foreseen, it would be sufficient that there is an intention to cause injury,
which injury is likely to cause death.
In Naga Po Nyein, AIR, 1933, the accused gave one blow to B with a long
wooden handle on the thinner part of the head . He was liable not for murder
but for culpable homicide as the weapon could not be said to be a formidable
one and the intention to kill could not be presumed.
3(iii) With the knowledge that he is likely by such act to cause death:
Knowledge is a strong word and imports a certainty and not merely a
probability. Here knowledge refers to the personal knowledge of the person
who dies the act. If A, B, and C attack M with lathis, the blows being directed
at the head of M, they must be fixed with the knowledge that they were likely
to cause death.
In Mansel Pleydall, 1926, the accused kicked the abdomen of B with such a
violence as to cause fracture of two ribs and rupture of the spleen which was
normal. B dies. It was held that the accused know that the abdomen is a most
delicate and vulnerable part of the human body and should, therefore, be
presumed to have kicked with the knowledge that by so kicking he was likely to
cause death.
In Vineet Kumar Chauhan v. State of UP, 2008, accused and victim were
neighbours. The incident in question preceded by altercation between accused
and family member of victim. Accused returned to his house in a huff, took
revolver of his father and fired indiscriminately towards victims house, victim
while trying to close door of his house was hit by the bullet which proved fatal.
It was held tht accused at best can be said to have knowledge that use of
revolver was likely to cause death and hence he is liable to be convicted under
Section 299 clause (iii) and not under Section 300, IPC.
Sometimes even gross negligence may amount knowledge: If a person acts
negligently or without exercising due care and caution, he will be presumed to
have knowledge of the consequences arising from his act.
In Ganesh Dooley, 1879, a snake charmer exhibited in public a venomous snake,
whose fangs he knew had not been extracted, and to show his own skill, but
without any intention to cause harm to anyone, placed the snake on the head of
one of the spectators. The spectator in trying to push off the snake was bitten,
and died in consequence . The snake charmer was held guilty of culpable
homicide not amounting to murder.
4. Death caused without intention or knowledge: the offence of culpable
homicide presupposes an intention, or knowledge of likelihood of causing
death. In the absence of such intention or knowledge, the offence
committed may be grievous hurt, or simple hurt. In those cases where death
is attributed to any injury which the offender did not know would endanger
life or would be likely to cause death and which in normal conditions would
not be so, notwithstanding, death being caused, the offence will not be
culpable homicide but grievous or simple hurt. Every such case would
depend upon the existence of abnormal conditions unknown to the offender.
A person who voluntarily inflicts such injury as was likely to endanger life
must always, except in the most extraordinary and exceptional circumstances, be
deemed to know that he is likely to cause death. If the victim is killed, ordinarily, the
 the offence is culpable homicide. Unless the lack of intention or the
knowledge aforesaid is proved. Once it is proved that the act was deliberate
act and was not the result of accident or rashness or negligence, his offence
would be culpable homicide.
Explanation 1: According to explanation 1, to section 299, a person who caused
bodily injury to another who is labouring under disordered disease or bodily
infirmity, and thereby accelerates the death of that other, shall be deemed to
have caused his death. But one of the elements of culpable homicide as
contained in section 299 must be present. That is, if the bodily injury so
inflicted was not with such intention or knowledge as required in section
299,then the offence is not culpable homicide.
Explanation 2: According to this explanation a plea that death could have been
prevented by resorting to proper remedies and skilful treatment is not allowed
to be raised to defeat a prosecution because it may not always be within the
reach of a wounded man. Therefore, if death results from an injury voluntarily
caused, the person who causes that injury is deemed to have caused death,
although the life of the victim might have been saved if proper medical
treatment have been given, and even if medical treatment was given but not
the proper treatment, provided that the treatment was given in good faith by a
competent physician or surgeon.
Explanation 3: this explanation provides tht causing of death of a child in the
mother’s womb is not homicide . But it would be homicide to cause the death of
living child, if any part of that child has been brought forth , though the child may
not have breathed or been completely born. Thus complete birth is not a
requisite.
In Abani K .Debath v. State of Tripura, 2006(SC), there was a quarrel between two
persons and the deceased who intervened to save one of them, was hit by a fatal
blow given by one of the accused persons. He died after seven day of the
incident and the medical evidence showed that fatal blow was the cause of his
death. He was held guilty of offence under Section 299(3) and punished under
Section 304, Part II of IPC.
In a landmark case of Public Prosecutor v. Mushunooru Suryanarayana Moorty,
1942, the Court held that death caused of person other than intended is covered
under section 299 as culpable homicide. In the instant case, the accused, with
the intention of killing A, on whose life he had taken out considerable insurance
without latter’s knowledge, in order to get insurance amount, gave A some
sweets mixed with dangerous poison. ‘A’ ate some of the sweets and threw
the rest away which were picked up by two children who dies because of
eating those poisonous sweets. It was held tht the accused was liable for
killing those two children though he had intended to kill A and not those
children. He was convicted for culpable homicide under Sec
The Supreme Court in Richpal Singh Meena v. Ghosh, 2014, has suggested a
five-step enquiry in deciding whether the accused causing death of person
should be guilty of culpable homicide under Section 299 or should be guilty of
murder under Section 300. Whether the act or omission of accused causing
death, is culpable homicide or not, can be determined by applying the five
step test as follows:
(1) Is there homicide?
(2) If yes, it is culpable or not culpable homicide?
(3) Is it a culpable homicide amounting to murder(i.e., Section 300, IPC) or
culpable homicide not amounting to murder under section 304, IPC?
(4) If it is not culpable homicide, then a case under Section 304-A of IPC?
(5) If it is not possible to identify the person who has committed the
homicide, the provisions of Section 72, IPC may be invoked. Such cases
generally arise if the investigation is defective or if he evidence is
insufficient.
Topic: Murder(Section 300)
Questions 1. Define Murder. Distinguish between culpable homicide and
murder
2. State the circumstances when culpable homicide amounts to murder?
Section 300 defines what is Murder under IPC: Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which the death is caused
is done with the intention of causing death, or
Secondly: If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the
harm is caused, or
Thirdly: If it is done with the intention of causing bodily injury to any person
and the bodily injury intended to be inflicted is sufficient in the ordinary course
of nature to cause death, or
Fourthly: If 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 of causing death or such injury as aforesaid.
Illustrations: (a) a shoots Z with the intention of 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 of causing bodily injury. Z
dies in consequence of the blow. A is guilty of murder, although the blow
might not have been sufficient in the ordinary course of nature to cause
the death of a person in a sound state of health. But if A, not knowing
tht Z is labouring under any disease, gives him such a blow as would not
in the ordinary course of nature kill a person in a sound state of health,
here A, although he may intend to cause bodily injury, is not guilty of
murder, if he did not intend to cause death, or such body injury as in the
ordinary course of nature would cause death.
(c) A intentionally gives Z a sword cut, or club-wound sufficient to cause
The death of a man in the ordinary course of nature, Z dies in consequence.
Here, A is guilty of murder, although he may not have intended to cause Z’s
death.
(d) A without any excuse fires a loaded gun, into a crowd of persons and kills one
of them. A is guilty of murder, although he may not have had a premeditated
design to kill any particular individual.
Exception 1: When culpable homicide is not murder: Culpable homicide is not
murder if the offender, whilst deprived of the power of self-control by grave and
sudden provocation, causes the death of the person who gave the provocation
or causes the death of any other person by mistake.
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.
Secondly: That the provocation is not given by anything done in obedience to
the law, or by a public servant in the lawful exercise of the powers of such public
servant.
Thirdly: That the provocation is not given by anything done in the lawful
exercise of the right of private defence.
Explanation: Whether the provocation was grave and sudden enough to prevent
the offence from amounting to murder is a question of fact.
Illustrations:
(a) A, under the influence of passion excited by a provocation given by Z,
intentionally kills Y, Z’s child. This is murder, in as much as the provocation
was not given by the child, and the death of 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 a
pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is
near him, but out of sight. A kills Z. Here A has not committed murder, but
merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. 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 of
the right of private defence.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe an
words of A’s deposition, and that A has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays
hold of 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 give by a thing done in the exercise of the right of private
defence.
(f) Z strikes B, B is by this provocation excited to violent rage. A, a by-stander
intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife
into B’s hand for the purpose. B kills Z with the knife. Here B may have committed
only culpable homicide, but A is guilty of murder.
Exceptions 2: Culpable Homicide is not murder if the offender, in the exercise in
good faith of the right of private defence of person or property , exceeds the power
given to him by law and causes the death of the person against whom he exercising
such right to defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Illustration: Z, attempts to horsewhip A, not in such a manner as to cause
grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing
in good faith that he can by no other means prevent himself from being
horsewhipped, shoots Z dead. A has not committed murder, but only culpable
homicide.
Exception 3: Culpable homicide is not murder, if the offender, being a public
servant or aiding a public servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes death by doing an act
which he, in good faith, believes to be lawful and necessary for the due
discharge of his duty as such pubic servant and without ill-will towards the
person whose death is caused.
Exception 4: Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel
and without the offender having take undue advantage or acted in a cruel or
unusual manner.
Explanation - It is immaterial in such case which party offers the provocation or
commits the first assault.
Exception 5: Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or taken the risk of
death with his own consent.
Illustration: A, by instigation, voluntarily causes Z, a person under eighteen
years of age to commit suicide. Here on account of Z’s youth, he was incapable
of giving consent to his own death, therefore A has abetted death.
This section 300, defines ‘Murder’ which is an offence punishable under
section 302 IPC. Murder includes culpable homicide, but a culpable homicide
may or may not amount to murder. As stated earlier, every murder includes
culpable homicide but the converse is not true and every culpable homicide is
not murder under n Section 300, IPC.
A case of culpable homicide is murder, if it falls within any one of the four
clauses of Section 300. in order to ensure justice in murder trial court should
go by evidence produced before it. It should remain dissociated from heat
generated outside court room either through news media or through flutter in
public opinion.
What will constitute an offence of Murder?
The question whether an offence falls in the category of murder or not depends
upon the following three considerations, namely:-
1. Does the act of the accused amount to culpable homicide as defined in
Section 299? If yes, then;
2. Does it also come within any one the categories of culpable homicide as
provided in the first four conditions described in Section 300of IPC? If yes; and
3. Then if the aforesaid act is not covered in any of the five exceptions laid
down in section 300, it will constitute on offence of murder.
Essentials or Ingredients of the offence of Murder: The essential ingredients of
the offence of murder under Section 300, IPC are as follows:
1. There was intention to cause death(Clause (1) of Section 300): According to
this clause any act by which the death is caused is done with the intention of
causing death, will constitute an offence of murder. The word ‘act’ also includes
omission as well. Thus where a person deliberately neglected to provide his child
proper food and subsistence although repeatedly warned of the consequences
And the child dies, it was held to be a case of murder .
In Venkaku v. State. 1956, the accused seeing the deceased sleeping in his
cottage, locked the door from outside so that he could not seek any help from
outside and set the cottage on fire. Held, that there was no doubt that the
intention of the accused was to kill the deceased and therefore, he was guilty of
murder and not the offence of culpable homicide as held by Supreme Court.
Similarly, in Pyra Sing v. State of Punjab, 1980, the accused persons inflicted
as many as twenty-four serious injuries on the deceased and cut his body into
several pieces, they were therefore, held guilty of murder.
2. Intentional causing bodily injury with knowledge that it will cause death
(Clause (2) of Section 300): According to this clause, if a person voluntarily
causes bodily injury, with the knowledge that such bodily injury will cause
death of the person injured, then it will be culpable homicide amounting to
murder. Thus the two requisites for the applicability of this clause are:
(1) there must be an intention to cause bodily injury or harm, and
(2) There must be ‘knowledge’ that death is likely to result of such bodily injury.
The ‘ knowledge’ that death will be the likely consequence of such intended
bodily injury is ‘subjective knowledge’ as opposed to the ‘objective knowledge’
which is required under clause (3) of Section 300. the words ‘likely’ and
‘knowledge’ used in clause (2) of section 300 carry with them an element of
certainty or definiteness and not mere possibility of death.
In Sudarshan Kumar v. State, 1974, the accused threw acid on the deceased
Mayavati as a result of which she died due to acid burn. In her dying declaration,
the deceased stated that the accused had threatened her that he would kill her, if
she does not marry him. Medical evidence showed that the injury and burns
caused to the deceased were of a serious nature which in ordinary course of
nature were sufficient to cause death. The Supreme Court, convicted the
accused for intention to murder.
3. Intentional causing in injury sufficient in ordinary course to cause death:
Clause(3) of section 300: As stated earlier, whether the accused had the intention
of causing bodily injury sufficient to cause death has to be decided objectively
and not subjectively as in the preceding clause (2) of Section 300. the probability
of death being caused due to intentional injury in ordinary course of nature
constitutes the essence of clause (3) of section 300.
The Supreme Court in Virsa Singh v. State of Punjab, 1958, held that for
convicting an accused under Clause (3) of Section 300, the prosecution has to
prove the following:
(1) That bodily injury was caused;
(2) That the injury was caused intentionally (this is to be established objectively);
(3) That the said injury was intentional that is, it was neither accidental nor
unintentional; and
(4) That the injury was sufficient to cause death in the ordinary course of nature.
In Rajwani Singh v. State, 1966, the accused covered the mouth of the deceased
with adhesive plaster, tied a handkerchief over the plaster, plugged the nostrils
with cotton wool soaked with chloroform, tied the hands and legs with rope and
dubbed him in a shallow drain with his own shirt put under his head as a pillow,
the accused was held guilty of murder under Clause (3) of section 300.
4. Knowledge that act is so imminently dangerous as to cause death: Clause (4)
of section 300: the main ingredients of the offence under this clause is:
(1) the act of the accused must be imminently dangerous .
(2) The accused must have knowledge that it is so imminently dangerous;
(3) That in all probability it will cause death or such bodily injury as is likely to
cause death; and
(4) Such imminently dangerous act should have been done without any reason
or justification for taking the risk of such injury.
In State of MP v. Ram Prasad, 1968, the accused poured kerosene oil upon the
clothes of his wife and set fire to those cloths. As he had no cause for incurring
that risk, he committed an act so imminently dangerous that it was in all
probability , likely to cause death or to result in an injury that was likely to
cause death.
Acquittal of person accused of offence under Section 300 on benefit of doubt:
A person accused of murder under Section 300 cannot be convicted for the
offence until his guilt is proved beyond any doubt and there is no sufficient
evidence to show that the accused has caused the murder or the injuries to
the deceased person resulting in his death.
The distinction between culpable homicide and murder has been brought out
by Melvill J. in R v. Govida 1876, wherein the accused about 18 years of age
kicked his wife aged 15 years and gave her few blows on her body as a result of
which she fell down on the ground. Then he put one knee on her chest and
struck her few blows by fist on her face causing extravasation of blood in brain
resulting in her death. The trial Court convicted the accused for murder. There
was difference of opinion amongst the two judges of the High Court of
Bombay, whether it was an offence of murder or culpable homicide, hence the
case was referred to third Judge of the High Court of Bombay, whether it was
an offence of murder or culpable homicide.
The third Judge, Melvill J, held the accused guilty of offence of culpable
homicide under section 299(2) and sentenced him under section 304, Part I on
the ground that the death was caused with the knowledge on the part of
accused that to cause such bodily injury was likely to result in death. The
learned Judge ruled out the application of clause (1) or (3) of section 300,
because the facts and circumstances of the case neither showed intention of
the accused to cause death of his wife nor bodily injury inflicted was sufficient
in the ordinary course of nature to cause death.
The distinction between culpable homicide and murder has been brought out
by Melvill J. in R v. Govida 1876, wherein the accused about 18 years of age
kicked his wife aged 15 years and gave her few blows on her body as a result of
which she fell down on the ground. Then he put one knee on her chest and
struck her few blows by fist on her face causing extravasation of blood in brain
resulting in her death. The trial Court convicted the accused for murder. There
was difference of opinion amongst the two judges of the High Court of
Bombay, whether it was an offence of murder or culpable homicide, hence the
case was referred to third Judge of the High Court of Bombay, whether it was
an offence of murder or culpable homicide.
The third Judge, Melvill J, held the accused guilty of offence of culpable
homicide under section 299(2) and sentenced him under section 304, Part I on
the ground that the death was caused with the knowledge on the part of
accused that to cause such bodily injury was likely to result in death. The
learned Judge ruled out the application of clause (1) or (3) of section 300,
because the facts and circumstances of the case neither showed intention of
the accused to cause death of his wife nor bodily injury inflicted was sufficient
in the ordinary course of nature to cause death.
The distinction between culpable homicide and murder has been brought out
by Melvill J. in R v. Govida 1876, wherein the accused about 18 years of age
kicked his wife aged 15 years and gave her few blows on her body as a result of
which she fell down on the ground. Then he put one knee on her chest and
struck her few blows by fist on her face causing extravasation of blood in brain
resulting in her death. The trial Court convicted the accused for murder. There
was difference of opinion amongst the two judges of the High Court of
Bombay, whether it was an offence of murder or culpable homicide, hence the
case was referred to third Judge of the High Court of Bombay, whether it was
an offence of murder or culpable homicide.
The third Judge, Melvill J, held the accused guilty of offence of culpable
homicide under section 299(2) and sentenced him under section 304, Part I on
the ground that the death was caused with the knowledge on the part of
accused that to cause such bodily injury was likely to result in death. The
learned Judge ruled out the application of clause (1) or (3) of section 300,
because the facts and circumstances of the case neither showed intention of
the accused to cause death of his wife nor bodily injury inflicted was sufficient
in the ordinary course of nature to cause death.
All murders are culpable homicide but not vice-versa. For the purpose of fixing
punishment, proportionate to the gravity of the generic offence, the Indian
Penal Code practically recognises three degrees of culpable homicide.
• The first is ‘Murder’. Which is the gravest form of culpable homicide which is
defined by section 300.
• The second may be termed as “culpable homicide of the Second degree”.
This is punishable under the first part of Section 304.
• Then there is “culpable homicide of the third degree”. This is the lowest type
of culpable homicide, from the point of view punishment and is punishable
under the second part of section 304 of Indian Penal Code.
In the case Augustine saldanha v. State of Karnataka, 2003, the Supreme
Court explained the distinction between murder and culpable homicide not
amounting to murder with the help of following table.
 Culpable Homicide (Section 299) Murder (section 300)
1. It has no special characteristics of 1. It has special characteristics of
murder. It is genus. murder. It is specie.
2. It is called the culpable homicide 2. It is the gravest form of culpable
of first degree of intention. homicide – Culpable homicide of the
second degree.
3. Subject to certain cxception culpable
3. A person commits culpable homicide is murder, if the act by
homicide if the act by which the which the death is caused is done:
death is caused is done:
(a) With the intention of causing death.
(a) With the intention of causing or
death; or (b) with intention of causing such bodily
(b) With the intention of causing such injury as the offender knows to be
bodily injury as is likely to cause likely to cause the death of the
death; or person to whom the harm is caused,
or
 Culpable Homicide (Section 299) Murder (Section 300)
Knowledge Knowledge
(c) with the knowledge that the act is (c) with the knowledge that the act is
likely to cause death. so imminently dangerous that it
must in all probability, cause
death, or such bodily injury as is
likely to cause death, and commits
(5) (a) The punishment for culpable such act without any excuse for
homicide is imprisonment for life
or imprisonment up to ten years incurring the risk of causing death
and fine, if the offence committed or such bodily injury as is
is under clause (1) and (2) of mentioned above.
section 299.
(b) If the offence committed is (5) The punishment for murder is
under clause (3) of Section 299, the
punishment is up to ten years of fine death sentence or imprisonment for
or both. life and fine.
When Culpable Homicide is not Murder (five Exceptions to section 300)
There are five exceptions appended to Section 300 which provided that
culpable homicide will not amount to murder, If the offence is committed under
any of the circumstances stated below, namely:
(1) Grave and sudden provocation;
(2) Private defence;
(3) Acts of public servants;
(4) Sudden fight; and
(5) Consent of the person killed.
Exception 1. Grave and Sudden Provocation: There may be a situation when an
offender on account of grave and sudden provocation is deprived of his power
of self-control and causes death of a person. Exception is itself subject to three
exceptions as follows:
(a) Whether a reasonable man, belonging to the same class of society as the
accused, placed in similar situation in which the accused was placed, would be
So provoked as to lose his self-control.
(b) Gestures may also, under certain circumstances, cause grave and sudden
provocation to an accused, so as to bring the act within the First Exception
to Section 300;
(c) The mental background created by the previous act of the victim may be
taken into consideration in ascertaining whether the subsequent act caused
grave and sudden provocation for committing the offence; and
(d) The fatal blow should be the instantaneous reaction of the provocation
caused and not after the passion had cooled down by interval of time or
other wise allowing scope for premeditation etc.
(e) In Nirmala Subba Rao v. State of Andhra Pradesh, 2007, the wife of the
accused left him and started living with her paramour. When she refused to
come back and live with the accused, the accused picked up a weapon from
carpenter’s tools and killed her. The Supreme Court declined to grant the
benefit of Exception 1 of Section 300 to the accused on the ground that he
had sufficient time interval to react and therefore it is not a case of grave
and sudden provocation, he was held guilty of murder.
When Culpable Homicide is not Murder (five Exceptions to section 300)
There are five exceptions appended to Section 300 which provided that culpable
homicide will not amount to murder, If the offence is committed under any of the
circumstances stated below, namely:
(1) Grave and sudden provocation;
(2) Private defence;
(3) Acts of public servants;
(4) Sudden fight; and
(5) Consent of the person killed.
Question: ‘A’ under he influence of passion excited by provocation given by ‘B’
intentionally kills ‘C’ who is ‘B’s child. What is the offence committed by ‘A’ ?
Exception 1. Grave and Sudden Provocation: There may be a situation when an
offender on account of grave and sudden provocation is deprived of his power of self-
control and causes death of a person. Exception is itself subject to three exceptions
as follows:
(a) Whether a reasonable man, belonging to the same class of society as the accused,
placed in similar situation in which the accused was placed, would be
Exception 2. Exceeding the right of private defence: Right of private defence is
recognised as a valid ground from exemption from criminal liability and this
defence is available against property and person and may even extend to causing
death in certain situations. Where a person genuinely exercises his right of
private defence within the limits prescribed by law, he commits no offence.
However, if he exceeds this right and commits murder so some person , he will be
allowed the benefit of exception 2 to Section 300 and will be held guilty of a
lesser offence of culpable homicide not amounting to murder and not for
murder. But exceeding such exercise of private defence should not be pre-
meditated and intentional for the applicability of the exception. Whether the
exceeding of right of private defence was premeditated or not and intentional or
unintentional would depend upon the facts and circumstances of the case.
In Bhagwan Swarup v. State of MP, 1992, the accused opened fire to rescue his
father who was being beaten by lathis blows. The short hit the person who was
wielding the lathi, resulting into his death. The Court held that the act of the
accused was justified in view of the fact and circumstances of the case and
allowing him the protection of Exception 2 of Section 300, he was convicted
under Section 304 instead of Section 302(murder).
Exception 3, Act of Public Servant: This exception extends benefit to a public
servant who exceeds his lawful power in discharge of his duties and thereby
causes death of a person. The ingredients of this exception are as follows:
(1) The offence must have been committed by a pubic servant or a person
aiding him;
(2) The alleged act must have been committed by public servant in the
discharge of his lawful duties;
(3) He should have exceeded the limits of powers given to him by law;
(4) The act should have been done in good faith;
(5) The public servant should have believed that his act was lawful and
necessary for the discharge of his duties; and
(6) He should not have borne any ill-will or malice towards the person whose
death occurred due to the act of public servant.
In Dakhi Singh v. State of UP, 1955, a police constable was taking a suspected
thief by train after arresting him. But the thief escaped from the running train.
The constable chased him and when he was not in a position to apprehend
him, he fired at him, but in the process the bullet hit the railway fireman who
was killed. The court held the case fell under exception 3 to Section 300 and
the accused constable was held guilty of culpable homicide not amounting to
murder and not for murder.
Exception 4, Sudden Fight: According to Exception 4 to Section 300, where
there is sudden fight between two persons or parties and the offender loses
his power of reasoning due to heat of passion, and cause death, he shall be
guilty of culpable homicide not amounting to murder, instead of murder. The
expression ‘sudden fight’ implies mutual provocation and aggravation.
The Supreme Court in Jaipal v. State of Haryana, 2000, reiterated that in order
to invoke exception 4 of Section 300 IPC, the defence has to prove that
culpable homicide is committed:
(i) Without premeditation in a sudden fight;
(ii) In the heat of passion in sudden quarrel; and
(iii) Without offender having taken any undue advantage or having acted in a cruel or
unusual manner.
(iv) nor acted in a cruel and unusual manner.
In Muthu v. State of Tamil Nadu, 2008, the deceased threw waste into the accused’s
shop and both started fighting on this issue. The enraged accused picked up a knife
lying there and thrust in the chest of the deceased causing his death due to serious
injury. The trial Court convicted the accused under Section 302(murder) and
sentenced him to life imprisonment, which was affirmed by the High Court. But in
appeal, the Supreme Court held that it was not the case of premeditated and
intentional murder and the case is covered under Exception 4 to Section 300 because
the accused did the act in a fit of anger when he lost self-control. The accused was
therefore, convicted for five years under section 304, Part II, out of which the
sentence which the accused has already undergone was to be deducted.
Exception 5, Death caused by consent: where death was caused, with the consent of
the deceased who was above 18 years of age ad such consent was free and voluntary,
the person causing such death shall not be guilty of murder but it will be a case of
culpable homicide not amounting to murder under exception 5 to Section 300 of IPC.
In the case of Dashrath Paswan v. State of Bihar, 1958, the accused, who was studying
in Xth class failed in the examination thrice in succession. He was so upset and
frustrated by these failures that he decided to put an end to his life. he informed his
wife, an educated girl of 19 years of age about his intention to commit suicide. The
wife thereupon requested him to kill her first and then kill himself. Accordingly, the
accused killed his wife, but was arrested before he could end his own life. The Court,
invoked Exception 5 to Section 300 and convicted the accused under Section 304,
Part I for culpable homicide not amounting to murder and not for the offence of
murder undersection 300.
the burden of proving that the accused is entitled to the benefit of exceptions is
on the accused though according to the general principle the burden of proving the
guilt of the accused beyond doubt lies on the prosecution.
Now lets discuss a famous case which differentiates between murder and
culpable homicide is ans which is a landmark case in the criminal history of India, K.M.
Nanavati v. State of Maharashtra, This landmark judgement of India received
unprecedented media attention as it involved Kawas Manekshaw Nanavati, a Naval
Commander who was tried for committing the murder of his wife’s lover, Mr. Prem
Ahuja.
Initially, Nanavati was declared not guilty, but later the verdict was dismissed by the
Bombay High Court and the case was tried under a bench trial.
This case was the last case to be heard as a jury trial in India because as the result of
this case, the government abolished the jury trials in India.
Kevas Manekshaw Nanavati, an Indian Naval Officer shifted to Bombay in March 1959
with his family and got to meet Prem Bhagwandas Ahuja, a businessman in
Bombay. While he was out of Bombay for his duty, Sylvia, his wife, developed an illicit
relationship with Prem Ahuja. He was then confronted with the confession of his wife
when she opened with her relationship with Ahuja. Further, in the heat of his agony,
he went to his ship to procure a loaded revolver and drove himself to Prem Ahuja’s
office. On not finding him at his workplace, he then drove to his residence. After an
altercation, at his residence, two shots went off accidently and hit Ahuja. Jury voted in
favour of the accused. The case was referred to hon’ble High Court under Section 307
of The Code of Criminal Procedure. The Division Bench of the High Court went on to
declare the accused guilty under Section 302 of IPC. An appeal was finally decided by
the Supreme Court.
Whether Nanavati shot Ahuja in “the heat of the moment” or whether it was a
premeditated murder?
JUDGEMENT-
It was held by the court that the conduct of the accused clearly showed that the
murder committed by him was a deliberate one and the facts of the case do not
attract the provision of Exception I of section 300 of IPC as the accused by
adducing evidence failed to bring the case under General Exception of IPC.
Therefore, as a result, the court convicted Nanavati under section 302 of IPC and
sentenced him of Imprisonment for Life.
The SC upheld the decision of the High court on the following grounds:
1. As per the defence case, the accused was thinking of the future of his wife
and a child which indicates that he had not only regained his senses but also
was planning for the future.
2. The time lapse between the confession and murder was sufficient to regain
his self-control.
3. The mere fact that before the shooting the accused abused the deceased and
the abuse provoked an equally abusive reply could not conceivably be a
provocation for the murder.
Section 301: Culpable Homicide by causing death of 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 of any person, whose death he neither intends not knows himself to be
likely to cause, the culpable homicide committed by the offender is of the
description of which it would have been if he had caused the death of the
person whose death he intended or knew himself to be likely to cause.
That is to say, a wilful doing of a prohibited act will render a person liable
and it would be no defence for him to say that he never intended to cause
death of the person killed and that the said person was killed by mistake.
In Abdul Ise Suleman v. State of Gujarat, 1995, the accused persons had an
altercation with the complainant. They started firing at the fleeing
complainants in a commercial locality. The first shot injured an innocent person
while the second shot caused the death of ten years old son of the complainant.
The Supreme Court held the death of the child to be intentional and upheld the
conviction of the accused under Section 300, read with Section 301 and
declined to accept it as a case falling under Section 304-A of IPC.
Section 302: Punishment for murder: Whoever commits murder shall be
punished with death, or imprisonment for life, and shall also be liable to fine.
This section provides punishment for murder . Life imprisonment is the rule
and death penalty is an exception in an offence of murder. Section 354 (b) of the
Criminal Procedure Code, 1973, requires that special reasons should be recorded
while awarding death penalty.
Where from the accused’s conduct it appears that he is genuinely dependent of
the circumstances unerringly point to the guilt of the accused and they are
consistent with the guilt . In a conviction for murder if direct evidence is
satisfactory and reliable the same cannot be rejected on hypothecal medical
evidence.
In Earabadrappa v. State of Karnataka, 1983, the accused appellant who was a
servant of the deceased, strangulated her to death and after her death, eloped
with her ornaments, silk sarees and case money kept in the almirah. The offence
was committed in the dead of the night when everybody in the house were
asleep. On these facts it was held by the High Court to be a pre planned ad cold
blooded murder for greed. The Supreme Court held itself be bound by the
decision in Bachan Singh v. State of Punjab, 1980 in which the Court was moved
by compassionate sentiments of human feelings and had ruled tht the sentence
of death should not be passed except in the rarest of the rare cases. But it
came to the conclusion that this case does not fulfil the test laid down in
Bachan Singh’s case, therefore, the death sentence was reduced to life
imprisonment. While deciding the case of Machi Sing and others v. State of
Punjab, 1983, the Supreme Court has laid down a five-point formula based on
which death penalty may be awarded. The factors which the Court was
expected to take into consideration for this purpose awarding death penalty for
rarest of rare cases, may be briefly stated as follows:
1. The manner in which the offence of murder was committed. If it was
committed with extreme brutality such as burning the victim alive or cutting
body into pieces, it would be a fit case to be considered as rarest of rare
case.
2. When the motive reveals depravity and meanness of the murderer for
Example, crime being committed for material gain.
3. When the murder is socially abhorrent such a bride burring or killing of a
Harijan.
4. When the magnitude of the offence is enormous as in case of multiple
murders.
5. When the victim is an innocent child, a helpless woman, or a reputed figure,
that is the case of a political murder.
The Supreme Court in Ankush Maruti Shinde and others v. State of
Maharashtra, 2009, upheld the death sentence of the six accused persons and
held that the case was clearly of the rarest of rare cases. In this case, the
accused persons were found involved in robbery, rape and murder of five
members of a family. They dragged a minor girl in an open field and gang-raped
her and then she was done to death. The deceased were not known to the
accused and there was no animosity. The murders were not only cruel, brutal
but also diabolic which collectively shocked the conscience of community. The
High Court of Bombay altered the death sentence of the accused
imprisonment for life.
On appeal by the State, against the alteration of death sentence of
the accused to that of imprisonment for life by the High Court , the
Supreme Court allowed the State’s appeal and held that this being a
case which could be said to be rarest of rare case, all the six accused
deserved to be punished with the sentence of death. The order of the
High court was therefore, liable to be quashed.
Section 303: Punishment for murder by life convict: Whoever, being
under sentence of imprisonment for life, commits murder, shall be
punished with death.
304: Punishment for culpable homicide not amounting to murder:
Whoever commits culpable homicide not amounting to murder:
Whoever commits culpable homicide not amounting to murder shall be
punished with Imprisonment for life, or imprisonment of either description
 for a term which may extend to ten years, and shall also be liable to fine, if the
act by which the death is caused is done with the intention of causing death or
of causing such bodily injury as is likely to cause death; or with imprisonment
of either description for a term which may extend to ten years, or with fine, or
with both, if the act is done with the knowledge that it is likely to cause death,
but without any intention to cause death, or to cause such bodily injury as is
likely to cause death.
This section provides punishment for culpable homicide not amounting
to murder. The section comprises two parts which are generally referred to as
Part I and Part II and provides two kinds of punishments applicable to two
different circumstances:
(i) Where the act by which death is caused is done intentionally or causing
such bodily injury as is likely to cause death, it is punishable under Part I
with sentence of imprisonment for life or of either description for a term
up to 10 years of fine. This part corresponds to clause (a) and (b) of section
299 and applies to cases of causing death under any of the exceptions to
Section 300.
(ii) On the other hand, Part II of Section 304, applies to offences where the act
is done with the knowledge that it is likely to cause death but without any
intention to cause death or such bodily injury as is likely to cause death.
This Part corresponds to Clause (c) of section 299. whether the
accused had the knowledge that his act was likely to cause death or bodily
injury which is likely to cause death, is a question of fact depending on the
situation and circumstances of each case. The maximum punishment is 7 years.
In Laxman v. State pf MP, 2006, the accused shot arrows at the deceased from
a distance with the result that one arrow pierced the deceased’s chest causing
his death. The supreme court altered the conviction of the accused from
murder to culpable homicide not amounting to murder and sentenced his under
Section 304, Part I.
In MT. Nambiar v. State of Kerala, 1997, where the accused(appellant) gave a
blow with a pair of scissors on the chest of the deceased, it was held that he did
that such an injury on the vital part of the body of deceased was likely to cause
his death. He was, therefore, convicted under Section 304, Part II, instead of
section 302, IPC.
In Shanmugam alias kulandaivelu v. State of Tamil Nadu, 2003, the accused
inflicted bodily injuries on the deceased which were of such nature that they
were likely to cause death. The Court held that there can be no doubt that the
accused intended to cause and did cause the injuries which caused the death
of the deceased and therefore, they were rightly 304, part I of the Indian
Penal Code.
In Gouri Shankar Sharma v. State of UP., 1990, the accused who was a police
officer was charged with the offence of causing death of a person by torturing
him while he was in police custody. He was convicted under Section 304, Part
II and sentences to seven years imprisonment which was held to be justified
by the Supreme court.
Rash and Negligent Acts
Section 304-A: Causing death by negligence - Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
For the application of this section, it is necessary that death is caused by doing a
rash or negligent act and such act must not amount to culpable homicide. Thus
this section shall apply where there is neither any intention to cause death not
knowledge that the act would in all probability cause death. To impose
criminal liability under this section it is necessary that the death should have
been the direct result of a rash or negligent act of the accused, and that act
must be the proximate and efficient cause without the intervention of another’s
negligence.
Culpable negligence is acting without the consciousness that the illegal and
mischievous effect will follow, but in circumstances which show that the actor
has not exercised the caution required of him. For example , where a chemist
gives expired date medicines to a patient and the patient dies, the chemist
would be liable for causing death by negligence because he has failed to
exercise due caution to ascertain whether the medicine that he was giving was
expired date or not.
Rash and negligent act: A rash and negligent act is an act done not intentionally
 or designedly. A rash act is primarily an over-hasty act, and is thus opposed to
a deliberate act, but it also includes an act which, though it may be said to be
deliberate is yet done without due deliberation and caution. Negligence is the
breach of a duty caused by omission to do something which a reasonable man
guided by those considerations which ordinarily regulate the conduct of human
affairs, would do or he doing of something which a prudent and reasonable
man would not do.
Rashness and negligence are not the same things. Mere negligence cannot be
construed to mean rashness. Negligence is the genus of which rashness is a
species. In order that rashness or negligence may be criminal it must be of such
a degree as to amount to taking hazard knowing that the hazard was of a such a
degree that injury was most likely to be caused thereby. The criminality lies in
running the risk or doing such an act with recklessness and indifferent to the
consequences.
It was held in Jacob Mathew v. State of Punjab, 2005, that the word has not
been used in section 304-A of IPC, yet it is settled that in criminal law,
negligence or recklessness, to be so held, must be such a high degree as to be
gross. The expression “rash or negligent act” as occurring in section 304-A of
the IPC has to be read as qualified by the word “grossly”.
Death due to deceased’s own negligence does not invoke Section 304-A.
Distinction between Section 304-A and section 304, Part II
It must be stated tht distinction between causing death by rash and negligent
act as understood in section 304-A of IPC and culpable homicide not amounting
to murder under section 304, Part II is very thin. The former is an act of
omission while in the latter, there is knowledge of the consequences attributed
though unintended.
In film-actor Salman Khan’s case in 2015, since the FIR stated that the actor was
drunk and driving at 10 km per hour from Juhu to his house Bandra in Mumbai,
the trial Court held him guilty of offence under Section 304,Part II holding that
he had knowledge that bakery workers slept on pavement outside the bakery on
Hill Road, near his house, coupled with the knowledge that driving drunk in fast
speed late in the night could result in car crash . He was convicted under
Section 304, Part II and sentenced to five years imprisonment for killing one
person who was crushed to death by his Court’s order before the Bombay High
Court praying that is case fell under Section 279 and not under Section 304 II.
He was, however released on bail bending the appeal.
Section 304-B, Dowry Death: (1) Where the death of a woman is caused by any burns
or bodily injury occurs otherwise than under normal circumstances within seven years
of her marriage and it is shown that soon before her death, she was subjected to
cruelty or harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry, such death shall be called “dowry death”,
and such husband or relative shall be deemed to have caused her death.
Explanation - for the purpose of this sub-section, “dowry”, shall have the same
meaning as in section 2 of the Dowry Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extent to imprisonment for
life.
This section was inserted in the Penal Code by an amendment in 1986. Sub-section
(1) of this section defines dowry death.
Essential ingredients:
(i) Death must be caused by burns or bodily injury or it must occur other wise than in
normal circumstances.
(ii) Death must occur within seven years of marriage; and
(iii) It must be shown that soon before her death the woman was subjected to
cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment must be for or in connection with any demand
for dowry.
(v) Here the dowry shall have the meaning as assigned to it under Section 2 of
the Dowry Prohibition Act, 1961.
Another important feature of this section, which can be said to be departure
from the normal feature of the Code is that a minimum of not less than 7 years’
imprisonment is prescribed but this may extend to imprisonment for life.
In Meka Ramaswamy v. Dasen Mohan, 1998, it was held by the Supreme Court
that if the bride dies within four months of marriage and their is absence of
demand of dowry as well as ill-treatment, the husband and his family cannot be
held liable under Section 304, IPC.
In Sharad v. State of Maharastra, 2011, deceased put herself on fire within 2 1/2
years of marriage. Evidence of uncle and other witness that she complained
about dowry harassment by husband two days before incident. Harassment
soon before death this stands proved. The defence plea that death was due to
accident was not supported by any evidence. Therefore it was held untenable.
More so when it was raised for first time in appeal. Therefore conviction of
accused husband under section 304-B was held to be proper.
In Raman Kumar v. State of Punjab, 2009, it was alleged that the appellant
husband and the mother-in-law of deceased Suman Bala Set deceased ablaze
after pouring kerosene oil. It was pleaded by the appellants that the death was
accidental. The letter written by deceased Suman Bala showed that there is not
even a whisper about demand of dowry. There were also improvements in the
statement of witnesses recorded in Court. There is also a clear indication in
history sheet of hospital where deceased was treated that deceased while
referred to this aspect. Prosecution failed to establish accusations. The
conviction of the appellant was, therefore set aside. It was made clear that the
expression “soon before her death” used in Section 304-B, IPC would normally
imply that interval should not be much between cruelty or harassment
concerned and death in question.
Construction of cruelty or harassment ‘soon before death’: the facts of the
present case Namely, Rajinder Singh V. State of Punjab, 2015, raised questions
relating to one of the great social evils practice against the women of the
country for centuries, that is dowry. Parliament responded mush earlier so far
as the prohibition of dowry is concerned by enacting the Dowry Prohibition Act,
1961 under which mild sentence was prescribed as penalty for the giving or
taking of dowry. The specific menace of dowry deaths, however , was tackled by
the introduction of a new provision section 113-B of the evidence Act.
It was also pointed out that the words “soon before her death” used in section
304-B are to be understood in relative and flexible sense. Those words cannot
be construed as laying down a rigid/period of time to be mechanically applied in
each case.
The Supreme Court in Vijayapal Singh v. State of Uttarakhand, 2015, observed
that it is only when in the course of trial, if the court finds no evidence or proof
beyond doubt to establish a code of homicide, the Court should proceed under
Section 304-B of IPC.
Section 305: Abetment of suicide of child or insane person: If any person
under eighteen years of age, any insane person, any delirious person, any idiot,
or any person in a state of intoxication, commits suicide, whoever abets the
commission of such suicide, shall be punished with death or imprisonment for
life, or imprisonment for a term not exceeding ten years, and shall also be liable
to fine.
Section 305 and 306 apply when suicide is in fact committed. These sections
have been inserted because the ordinary law of abetment is inapplicable.
Section 306: Abetment of suicide: if any person commits suicide, whoever
abets the commission of such suicide, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine.
Those who aid and abet the commission of suicide by the hand of the person
himself who commits the suicide, may be punished under this section. When
another person, at the request of or with the consent of the suicide , be killed
that person, he would be guilty of culpable homicide under exception 5 to
To Section 300. Those who assists a Hindu widow in becoming sati will be guilty
of abetment of suicide. B by instigation voluntarily causes C, a person of 18
years to commit suicide. B will be liable under this section.
In Praven Pradhan v State of Uttaranchal, 2012, constitute instigation it must be
with intention and words uttered in anger without any intention do not
constitute instigation. In this case deceased was persistently harassed by
accused superior. On one occasion accused disgraced deceased and told him
that any other person in his place would have committed suicide. Charge-sheet
for offence under Section 306 was filed against him. It was held not liable to be
quashed.
It was held in many cases that harassment of wife by husband or in laws due to
difference per se dies not attract Section 306 read with section 102, IPC, if the
wife commits suicide. For charge under Section 306, IPC, there has to be
something more.
It was held in Nachatter Singh v. State of Punjab2012, that in case of suicide on
account of cruelty, cruelty meted out must be of nature is would drive a person
of common prudence to commit suicide. Expecting daughter in law to look after
aged -in-laws is not cruelty of category contemplated in section 498-A. Indian
Penal Code. Therefore conviction of appellant -in-laws of deceased under
section 306, IPC held to be set aside.
It was also observed that abetment involves a mental process of instigating a
person or intentionally aiding tht person in doing of a thing. More active role
which can be described as instigating or aiding doing of a thing is thus required
before a person can be said to be abetting suicide.
Instigation by conduct: In Girija Shanker v. State of M.P., 2010, one Dinesh was
married with Urmila. Sometimes after the marriage Urmila was being ill-treated
by her husband and in-laws, who had in fact started searching another bride for
Dinesh, she was made to starve and work like a bonded labour and also
subjected to mental and physical torture. One day her dead body was found in
a well situated at a distance of about a furlong from the house of appellants.
The three were tried under Section 302 and alternatively under Section 306,
IPC. They were found guilty under section 306, IPC. The court held that it is not
Necessary that the instigation should be only in words and may not be by
conduct. Direct evidence of any instigation or aid is not necessary. It is a
matter which can deduced from the circumstances. In this case maltreatment
and starvation coupled with a search for another bride for their son was
proved and therefore appellants were guilty of abetment of suicide.

Section 307: attempt to Murder : Whoever does any act with such intention
or knowledge, and under such circumstances that, if he by that act caused
death, he would be guilty of murder, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine; and if hurt is caused to any person by such act, the offender shall
be liable either to imprisonment for life, or to such punishment as is
hereinbefore mentioned.
Attempts by life convicts: when any person offending under this section is
under sentence of imprisonment for life , he may, if hurt is caused, be
punished with death.
Illustrations: (a) A shoots at Z with intention to kill him, under such
circumstances that, if death ensued, A would be guilty of murder. A is liable to
punishment under this section
(b) A, with the intention of causing the death of a chid of tender years exposes it
in a desert place. A has committed the offence defined by this section, though
the death of the child does not ensue.
(c ) A, intending to murder z, buys a gun and loads it. A has not yet committed
the offence. A fires the gun at Z. He has committed the offence defined in this
section, and if by such firing he wounds Z, he is liable to the punishment
provided by the latter part of the first paragraph of this section.
(d) 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
defined in this section. A places the food on Z’s table or deliver it to Z’s
servant to place it to Z’s table. A has committed the offence defined in this
section.
The section penalises attempt to commit murder as an offence. Intention to
commit murder and some overt act in execution thereof are the two essential
elements of the offence under this Section.
The Supreme Court in Om Prakash v. State, 1961, held that an offence
under section 307 is committed where a person with requisite intention or
knowledge does an act towards commission of murder but death does not
result in. In that case, he shall be guilty of attempt to murder under section 307
of IPC and not under section 511 of the Indian Penal Code.
Intention to cause death: For invoking the provisions of Section 307, the court
has to see whether the act, irrespective of its result, was done with intention or
knowledge to cause death. The section does not insist that an injury must have
been caused to a person on whom attempt to murder was made, though the
nature of injury actually caused may be of considerable help to know the
intention of the accused.
The Supreme Court in Bipin Bihari v. State of Madhya Pradesh,2006, ruled
that the Court can ascertain intention from the facts and circumstances of the
case even without reference to actual injuries caused.
A person cannot be convicted for both murder as well as attempt to murder:
Section 302, provided punishment for the offence of murder, whereas section
307 penalises attempt to murder. The Supreme Court in T.M. Balkirshna
Mudliar v. Satyanaraya Rao, 1993, held that an accused cannot be convicted
for both under Section 302 as well as Section 307, and in case of murder, the
conviction under section 307 cannot sustain and therefore, it has to be set
aside.
The Supreme Court in Juge Ram v. State of Haryana, 2015, observed that;, For
the conviction under Section 307, IPC, the prosecution has to establish:
(i) The intention to commit murder, and
(ii) the act was done by the accused.
To justify a conviction under Section 307, it is not essential that fatal injury
capable of causing death should have been caused. The intention of the
accused is to the gathered from the circumstances like the nature of the
weapon used, words used by the accused at the time of the incident, motive of
the accused, part of the body where the injury was caused and the nature and
severity of the blow given etc.
Write also here the case, (Omprakash v, State, discussed under Dowry death).
In R. Prakash v. State of Karnataka, 2004, the accused assaulted the victim
hitting on his vital parts and non-vital parts of the body. As many as five
persons tried to intervein and rescue the victim but despite that, the accused
continued to assault and injure the helpless victim. The Court held that this act
of the accused was enough to show that he wanted to kill the victim and
therefore, he was rightly convicted under Section 307 of IPC. The Court in this
case made it clear that the conviction of the accused under Section 307 should
not be set aside merely on the ground that the injuries caused by him were
simple.
Section 308: Attempt to commit culpable homicide: Whoever does any act
with such intention or knowledge and under such circumstances that, if he by
that act caused death, he would be guilty of culpable homicide not amounting
to murder, shall be punished with imprisonment of either description for a term
which may extend to three years, or, with fine, or with both; and , if hurt is
caused to any person by such act, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or
with both.
Illustrations: A, on grave and sudden provocation, fires a pistol at Z, under such
circumstances that if he thereby caused death he would be guilty of culpable
homicide not amounting to murder. A has committed the offence defined in
this section.
The phraseology issued in this section is similar to that of the preceding
section 307, except that Section 307 is related to offence of attempt to murder,
whereas section 308 concerns with attempt to commit culpable homicide. It is
to be interpreted in the same way as Section 307 of IPC.
In Om Prakash v. State of Delhi, 1982, the accused fired at the police party
which was chasing him but it was misfired, it did not convert the case of
attempt to murder(Section 307) into one of attempt to commit culpable
homicide under section 308 and the accused was therefore, convicted under
Section 307. the attempt of cases described under second and third clauses of
section 299 and those under any of the five exceptions of section 300 fall within
the ambit of this section.
Section 309: Attempt to commit suicide: Whoever attempts to commit suicide
and does any act towards the commission of such offence, shall be punished
with simple imprisonment for a term which may extend to one year or with fine,
or with both.
In order to constitute an offence of suicide under this section, the
‘intention’ to commit suicide is an essential element. Thus where a person
jumped into well to avoid the police and later came out of it at his own, he was
not held guilty of an offence under this Section. Similarly, where a woman
jumped into a well in order to avoid and escape from her husband and
subsequently came out of the well herself, she could not be convicted under
section 309, in the absence of any evidence that she wanted to commit suicide.
Euthanasia is not legally recognised in India and therefore, it is an offence
punishable under Section 309, IPC. Although some efforts were made through
a private member’s bill to decriminalise it in 1980. but the bill was defeated in
the House of Parliament. It was also introduced in Maharashtra Legislative
Council but met the same fate.
However, the Supreme Court in its decision in Aruna Shanbang’s case, allowed
passive euthanasia as valid and lawful but not the active euthanasia which will
continue to be offence of attempt to commit suicide under Section 309 of the
Indian Penal Code.
In the instant case, Aruna Shanbang, who was a nurse in KEM Hospital Mumbai
was sexually assaulted by a ward boy at that hospital some 47 years ago, and
was permanently rendered in a vegetative state throughout the period of 42
years Permission was sought on her behalf from the Apex court for mercy-
killing. But the petition for allowing mercy killing of Aruna the court allowed
only passive euthanasia for permanently vegetative patients by withdrawing life
support but rejected active euthanasia of ending life through administration of
lethal injection drug etc. but Aruna was not PVS.
Hence the Supreme Court in its decision this case, allowed passive
euthanasia as valid and lawful but not the active euthanasia which will continue
to be offence of attempt to commit suicide under Section 309 of the Indian
Penal Code.
It is important here to note that in this case, on 9 March 2018, the Supreme
Court of India, passed a historic judgement-law permitting Passive Euthanasia in
the country.
The Supreme Court specified two irreversible conditions to permit Passive
Euthanasia Law :
(I) The brain-dead for whom the ventilator can be switched off.
(II) Those in a Persistent Vegetative State (PVS) for whom the feed can be
tapered out and pain-managing palliatives be added, according to laid-down
international specifications.
Going on hunger strike is not attempt to commit suicide: Hunger strike cannot be
equated with attempt to commit suicide for the obvious reason that the intention
of hunger striker is not really to kill himself or end his life, but it is an act of
calculative and purposive coercion giving time to authority to yield to the striker's
demand. Therefore the essential element required for the offence of suicide,
namely, “intention to kill oneself” is missing in hunger strike.
 to conclude, Gian kaur judgment, the five judge bench of the Supreme Court of
India had ruled that the section 309 was not violative of article 21 of the
Constitution.
Section 309 is an unique section, which only seeks to penalise attempt and not
the actual offence, because if actual offence of suicide happens, no one will be
there for punishment.
Recently, the law commission has recommended for removal of S. 309 from IPC.
A bill has been introduced in Parliament, but has not been passed yet. The
Supreme court has also recommended the Parliament to take appropriate
action.
However, the section is still there in IPC standing valid.
But technically, even though the section has not been removed, the Mental
Healthcare Act 2017,passed by the government effectively decriminalizes
attempted suicide.
Therefore, despite Section 309 being there in IPC, technically it has no effect.
Section 310: Thug: Whoever, at any time after passing of this Act, shall have been
habitually associated with any other or others for the purpose of committing robbery
or child-stealing by means of or accompanied with murder, is a thug. According to
Section 311, a Thug, shall be punished with imprisonment for life, and shall also be
liable to Fine.
Causing Miscarriage or injuries to unborn Children
Sections 312 to 318 of the Code deal with offences affecting human body which are
related to causing of miscarriage or injuries to unborn child, exposure of infants and
concealment of births.
1. Causing Miscarriage: According to Section 312: Whoever voluntarily causes a
woman with child to miscarry shall, if such miscarriage be not caused in good faith for
the purpose of saving the life of the woman, be punished with imprisonment of either
description for at term which may extend to three years, or with fine, or with both;
and, if the woman be quick with the child, shall be punished with imprisonment of
either description of a term which may extend to seven years, and shall be liable to
fine.
Explanation: A woman who causes herself to miscarry, is within the meaning of this
section.
According to Section 313, Causing miscarriage without woman’s consent:
Whoever commits the offence defined in the last preceding section without the
consent of the woman, whether the woman is quick with child or not shall be
punished with imprisonment for life or with imprisonment of either description
for a term which may extend to ten years and shall also be liable for fine.
2. According to section 314: Death caused by act done with intent to cause
miscarriage: Whoever, with intent to cause the miscarriage of a woman with
child, does any act which causes the death of such woman, shall be punished
with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine:
3. If act done without woman’s consent - and if the act is done without the
consent of the woman, Shall be punished either with imprisonment of life.,
or with the punishment above mentioned and it is not essential to this
offence that the offender should know that the act is likely to cause death.
4. According g section 315: Act done with intent to prevent child being born
alive or to cause it die after birth, will be punished with imprisonment of either
description for a term which may extend to ten years . The only exception to
this section is that if such act has been done in good faith for saving the life of
the mother, then in that case no liability will incur under this section.
5. According to Section 316, causing death of quick unborn child by act
amounting to culpable homicide:
6. According to Section 317, exposure and abandonment of child under
twelve years, by a parent or persons having care of it: The section seeks to
protect children below 12 years of age against harmful exposure or
abandonment. The parent and those who have custody of children under
twelve years of age are expected to extend adequate protection and such
protection extends to both legitimate as well as the illegitimate children.
Abandoning the child unprotected at a place where he or she may be exposed
to wind , rain, heat or cold weather or danger from wild animals etc., would
constitute an offence under Section 217 of IPC.
7. Concealment of birth by secret disposal of dead body: The object of this
section is to prevent infanticide. Whoever disposes the dead body of a child
secretly to conceal the birth of child, shall be punished with imprisonment of
Either description for a term which may extend two years.
In Murugan v. State,1991, the accused physically assaulted his 20 weeks
pregnant wife thereby causing death of foetus. The medical evidence showed
the foetus starts taking shape after about 12 weeks of conception. The accused
was therefore, convicted for the offence of causing death of a quick unborn
child under Section 316 of IPC.
Chapter: Hurt and Grievous Hurt
Questions: 1. Explain the circumstances under which hurt amounts grievous
hurt.
2. What is hurt ? Explain the circumstances under which hurt becomes grievous
hurt. Illustrate.
3. Differentiate between Hurt from grievous Hurt.
4. ‘A’ intending to permanently disfigure B’ face gives ‘B’ a blow which does
not permanently disfigure B’s face, but causes ‘B’ to suffer a severe bodily pain
for 20 days. Discuss the liability of ‘A’.
Section 319 to 338 of the Indian Penal Code deal with causing of hurt and
grievous hurt and punishment for them . The break-up of the subject may
briefly be summarised as follows:
(1) simple hurt.
(2) Grievous hurt
(3) Voluntarily causing hurt or grievous hurt by dangerous weapons or dangerous
means .
(4) Causing hurt or grievous hurt to extort property .
(5) Causing hurt by poison
(6) Causing hurt or grievous hurt to extort confession or compel restoration of
property
(7) Causing hurt or grievous hurt to deter Public servant
(8) Causing hurt or grievous on provocation
(9) Causing hurt or grievous hurt by endangering life or personal safety of others.
Hurt: According to Section 319 : Whoever causes bodily pain, disease or infirmity
to any person is said to cause hurt.
This section defines ‘hurt’ as causing of bodily pain, disease or infirmity by a
person to some other person. The duration of period is immaterial in case of
‘hurt’ under this section. The expression ‘bodily pain’ used in this section refers to
physical pain only and not any mental or emotional pain. It may be invisible also.
Severity of the pain is also not a material factor to be taken into consideration
from the applicability of this section. Even a simple first blow may amount to
‘hurt’ if it causes bodily pain.
The meaning of the term ‘infirmity’ used in this section, the Courts have held
that it denotes inability of an organ of the body to perform its normal function
and such infirmity may be temporary or permanent in a nature.
The self inflicted pain or infirmity is not covered under the term ‘hurt’ used in
this section.
In Raka v. Emperor, 1887, the High Court of Bombay held that a prostitute who
has sexual intercourse with the complainant and thereby infected him with a
venereal disease had committed an offence under Section 269 for spreading
the infectious disease and it could be treated as hurt under Section 319,
because of the remoteness of the act and its consequences.
Pulling a woman by hair amounts to causing hurt under section 319 of the IPC.
In Marcelino Fernandes v. State, 1976, the accused along with four other
persons went to the victim to teach a lesson to him for selling to them a fake
ring, and
Kicked him and inflicted blows by a broken brick at the back of his neck as a
result of which, he fell down, vomited blood and ultimately died. The court
held that in the absence of any previous enmity between the accused and the
victim and absence of requisite intention or knowledge and circumstances for
culpable homicide, they could be held guilty of only causing hurt under section
319 of IPC.
Grievous Hurt: According to Section 320: the following kinds of hurt only are
designated as “Grievous”.
firstly - Emasculation.
Secondly – Permanent privation of the sight of either eye.
Thirdly – permanent privation of the hearing of either ear.
Fourthly – Privation of any member of joint.
Fifthly – Destruction or permanent impairing of 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 suffers to be
during the space of twenty days in severe bodily pain. Or unable to follow
ordinary pursuit.
this section stipulates certain nature of injuries which are categorised as
grievous hurt. Unless a hurt caused by a person falls within the categories of
grievous hurt specified in Section 320, it will be treated as only a simple hurt.
About the eight clause of Section 320, mere hospitalization for 20 days or
more than 20 days will not necessarily turn a simple hurt into a grievous hurt
where the victim himself has actively contributed to long term hospitalisation
due to his own fault or negligence.
In Formina Sebastio Azardeo v. State of Goa, 1992, the two accused persons tied
their victim to an electric pole and assaulted him to teach him a lesson for
spreading scandalous information about the alleged love affair of the accused .
The victim died without any further overt act on the part of the accused persons
or they had the intention to kill him. It was held that their offence fall in eight
clause of grievous hurt under Section 320 as they endangered the life of the
victim and not under Section 300.
A fracture or dislocation bone or tooth are held to be grievous hurt clause
seventh of Section 320. but mere loosening of four teeth or a cut across the
bone cannot be held as grievous hurt. Splintering of bone or rupture or tissue
in it, is a fracture and therefore, a grievous hurt as per seventh clause of section
320, IPC.
According to clause sixthly of section 320, permanent disfiguration of head or
face amounts to grievous hurt. Disfiguration impels spoiling the figure, shape
amounts to grievous hurt. Disfiguration implies spoiling the figure, shape or
beauty or deforming it. For example, cutting of ear, nose, branding cheeks or
forehead by red hot iron, cut inflicted by a razor on the face etc. have been held
to be causing grievous hurt.
A distinction has to be drawn between offences of ‘hurt’ and offences affecting
life. The position of the law therefore would be that there is only common
intention to cause a grievous injury without any intention to kill, an accused
cannot be convicted of murder. However, if this distinction is rigidly followed
the accused who has killed a person by crushing and smashing the person’s
head would plead in his defence that he never intended to cause that person’s
death but only intended to cause him grievous hurt and thus succeed in
escaping extreme penalty of death or life imprisonment which is prescribed
For the offence of murder. It will thus frustrate the cause of criminal justice and
punishment.
In Guruvulu V. Emperor, 1945, the accused was charged for cutting a part of
nose of the deceased woman with a view to stealing nose-ring which she was
wearing in her nose, but she died as a result of the same. The accused was
charged for culpable homicide not amounting to murder but the court in appeal
held that the accused has committed the offence of grievous hurt only as death
was not atall likely to result nor was it intended or foreseen.
Voluntarily causing hurt: According to section 321: Whoever does any act with
the intention of 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”.
Voluntarily causing grievous hurt: According to Section 322: Whoever
voluntarily caused hurt, if the hurt which he intends to cause or knows 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 know 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 of one kind,
he actually causes grievous hurt of 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 to twenty days.
A has voluntarily caused grievous hurt.
The provisions contained in section 321 and the explanation to this section
clearly indicates that the ingredient of intention or knowledge must invariably
be present in order to constitute the offence of hurt or grievous hurt.
Punishment for voluntarily causing hurt: According to section 323: Whoever,
except in the case provided for by Section 334, voluntarily causes hurt, shall
be punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand rupees or
with both.
In Public Prosecutor v. N.S.Murthy, 1973, the accused, a shopkeeper in a
sudden quarrel with his wife hit on her head with an iron weight of 200 grams
which resulted in her death. The medical report showed that the hurt caused
was of a simple nature and there was no evidence to show that the accused
intended or had the knowledge that death would thereby caused. The report
showed that the deceased died of shock due to injury. The accused was
therefore, held liable for causing hurt and sentences under Section 323 and not
Section 304 of IPC.
In Om Prakash v. State(NCT, Delhi), 1990, the two accused who were brothers
met at their sister’s place , to teach her a lesson for filing a civil suit against
them and one of them was carrying knife, but this was not known to the other
accused, inflicted a knife injury on a vital part resulting in her death. The
accused who inflicted knife injury on a vital part resulting in her death. The
accused who inflicted knife injuries on the deceased was convicted and
sentenced under Section 304, Part II, whereas the other accused was convicted
for the offence of causing simple hurt under Section 323, IPC.
Voluntarily causing hurt by dangerous weapons or means: According to Section
324: this section applies when a dangerous weapon or dangerous means has
been used to cause a simple hurt. Dangerous weapon for the purpose of this
section may include fire, poison, explosive substance etc. which are deleterious
to the human health. It must, however, be stated that where dangerous
weapon or means are used to cause a grievous hurt as defined in section 320,
then in that case Section 326 will apply and not 324 which relates only to simple
hurt.
Obviously, the punishment under Section 324 is harsher than provided under
Section 323 because of dangerous weapon or means being used to cause such
hurt. But where simple hurt is caused by a person as a result of provocation,
even if the offender has used dangerous weapon or means, his act will not be
covered under section 324 and the accused will be punished under Section 323
which prescribes a lighter punishment for such hurt caused in provocation.
Section 325, talks on punishment for voluntarily causing grievous hurt:
Whoever except in the case provided for by section 335, voluntarily causes
Grievous hurt, shall be punished with imprisonment of either description for a
term which may extend to seven years, and also be liable for fine.
In Mohinder Singh v. State, 1986, the accused assaulted the deceased with a
lathi blow on is forehead. The medical report showed that the attack on the
forehead of the deceased by lathi and the internal injury causing death of the
deceased could not be correlated. The Court therefore, convicted the accused
under Section 325 and not under section 326.
Section 326: Voluntarily causing grievous hurt by dangerous weapons or means:
This section applies where a grievous hurt as defined under section 320 is
caused by a dangerous weapon or dangerous means. Where there are no signs
of grievous hurt on the body of the victim, the accused cannot be convicted for
an offence under this section.
In Dattunana Pawar v. Emporer, 1918, the two parties had a fight with stone
pelting at each other. The death of the deceased ws caused due to stone being
thrown at him by the accused which hit and damaged his liver. Held, the
accused was guilty of the offence under section 326 as stone was a dangerous
means and his conviction for murder under Section 302 was set aside.
Section 326-A. Voluntarily causing grievous hurt by use of acid etc: the
following are covered by this section:
(i) Causing permanent or partial damage or deformity to any person.
(ii) Causing burn.
(iii) Any person who maimes or disfigures or disables any part or parts of the
body of a person; or
(iv) Causing grievous hurt by throwing acid or by administering acid, or
(v) Causing injury by any other means.
Another requirement is that any of the above kinds of injuries may be caused
with the intention or knowledge that he is likely of injuries my be caused with
the intention or knowledge that he is likely to cause any such injury or hurt.
Causing any offence of the above category is punishable with imprisonment of
either description for a term which shall not be less than ten years but which
may extend to imprisonment for life and with fine.
Provided that such fine shall be just and reasonable to meet the medical
expenses of the treatment of the victim. Provided also that any fine so imposed
under this section shall be paid to the victim.
The following offences are also covered under this chapter:
1. Section 326-B: deals with the offence of voluntarily throwing or attempting
to throw acid.
2. Section 327: Voluntarily causing hurt to extort property, or to constrain to
an illegal act: this section applies to cases wherein the offender voluntarily
causes hurt for the purpose of extorting property or to compel a person to
do an illegal act.
3. Section 328: Causing hurt by means of poison etc, with intent to commit an
offence: In Nanjundappa’s case, the accused administered Dhatura powder
to a woman and robbed her of her jewellery while she became unconscious,
he was held guilty of offence under this section.
4. Section 329: Voluntarily causing grievous hurt to extort property, or to
To constrain to an illegal act: This section applies to cases where the offender
voluntarily causes grievous hurt for extorting property or to compel a person to
do an illegal act. Thus, the section is similar to earlier section 327 with the only
difference that hurt caused under this section is grievous in nature whereas it is
simple hurt in case of section 327.
Section 330: deals with voluntarily causing hurt to extort confession, or to
compel restoration of property .
Illustration: A, a police officer, tortures Z , in order to induce Z to confess that
he committed a crime. A is guilty of an offence under this section.
Section 331: Voluntarily causing grievous hurt to extort confession, or to
compel restoration of property: This section is similar to the preceding section
except tht the hurt caused for the application of this section should be grievous
whereas it is simple hurt in case of section 330, IPC.
In Public Prosecutor v. Ranniappa, 1955, a boy was accused of theft. In order to
extort confession from him, his hands were tied together and wrapped with a
cloth and kerosene poured over it and fire was lit. The accused was convicted
under Section 331 and sentenced to one year rigorous imprisonment.
Section 332: Voluntarily causing hurt to deter pubic servant from his duty: this
section resembles Section 353 with the only difference tht under this section
causing of hurt toa public servant in order to deter him from discharging his
duty is made a punishable offence whereas under section 353, there is assault
or use of criminal force for the same purpose.
Section 333: Voluntarily causing grievous hurt to deter public servant from his
duty : this section provided for an aggravated form of offence dealt with in the
preceding section.
Section 334: Voluntarily causing hurt on provocation: Whoever voluntarily
causes hurt on grave and sudden provocation, if he neither intends nor knows
himself to be likely to cause hurt to any person other than the person who gave
the provocation,. Shall be punished with imprisonment for a term which may
extend to one month with or without fine.
Section 335: voluntarily causing hurt on provocation for which the punishment
may extent for four years. The essential ingredients are:
(1) The offender should have caused hurt or grievous hurt under section 335
voluntarily.
(2) It should have been caused due to provocation.
(3) The provocation so caused should be both, grave and sudden;
(4) The accused should not have intended to cause hurt/ grievous hurt to any
other person than the person who provoked him; or
(5) He should not have knowledge that his act is likely to cause hurt/grievous
hurt to any person other than the person who provoked him.
Section 337: Causing hurt by act endangering life or personal safety of others :
Whoever causes hurt to any person by doing any act so rashly or negligently as
to endanger human life, or the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend to six months.
Section 338: this section deals with causing grievous hurt by act endangering
life or personal safety of others.
It may be stated tht grievous hurt caused due to motor accident are generally
dealt with under the Motor Vehicle Act, 1988.
 Wrongful restraint and Wrongful confinement
Questions: 1. Briefly discuss wrongful restraint and wrongful confinement.
2. ‘A’ causes ‘B’ to go within a room and locks ‘B’ in, with an intention to
prevent him from proceeding in any direction beyond the room. What offence
has ‘A’ committed?
3. A builds a wall across a path along which B has a right to pass. B is thereby
prevented from passing what is the offence committed by A?
Sections 339 to 348 of IPC, deal with the offences of wrongful restraint and
wrongful confinement.
Wrongful restraint: According to Section 339, Whoever voluntarily obstructs,
any person so as to prevent that person from proceeding in any direction in
which that person has a right to proceed, is said wrongful to restrain that
person.
Exception – The obstruction of a private way over land or water which a person
in good faith believes himself to have a lawful right to obstruct, is not on offence
within the meaning of this section.
Illustration: A obstructs a path along which Z has a right to pass, A not believing
in good faith that he has a right to stop the path, Z is thereby prevented from
passing. A wrongfully restrains Z.
Restraining a person from going wherever and whenever he likes and has right
to go in a lawful manner is called wrongful restraint which is punishable under
this Section. There are two main ingredients of this offence, namely;
(i) Voluntary obstruction of a person;
(ii) The obstruction should be such as to prevent that person from proceeding
in any direction in which he has a right to proceed.
The restrain as contemplated under this section to be wrongful, must be
complete from all directions. Thus where the house-owner, who partially
restrained his tenant by closing one of the door leaving the main entrance gates
open, was not held guilty of wrongful restraint as the complainant had passage
to move in and out through the main entrance gate.
In re M Abraham case, the accused the driver of a bus purposely made his bus
Stand across the road in such a manner as to prevent another bus which was
coming from behind, to proceed further. He was held guilty for wrongful
restraint under Section 339.
The Supreme Court in Vijay Kumari Magee v. Smt. S. R. Rao, 1996, held that
necessary pre-condition for wrongful restraint is that a person concerned must
have a right to proceed, and therefore, the complainant lady teacher who was
a licensee of a hostel room could not have a right to live there after termination
of her licence, and hence the school authorities could not be charged for
wrongful restraint in not allowing her entry in the room.
II Wrongful Confinement: Section 340: Whoever wrongfully restrains any
person in such a manner as to prevent that person from proceeding beyond
certain circumscribing limits, is said “ wrongfully to confine” that person.
Illustrations: (a) A causes Z to go within a walled space, and locks Z in, A is thus
prevented from proceeding in any direction beyond the circumscribing line of
wall. A wrongfully confines Z.
(b) A places men with firearms at the outlets of a building, and tells Z that they
will fire at Z, if Z attempts to leave the building. A wrongfully confines Z.
This Section describes another form of wrongful restraint which is known as
wrongful confinement. It is a wrongful restraint of a person which prevents him
from proceeding beyond certain circumscribed limits.
Where a police officer arrested and detained a person in police lock-up
despite that person producing bail order of the Court , the police officer was
held guilty of offence under Section 340 and was sentenced under Section 342
of IPC.
and confining a person by merely spoken words or telling him that he is
completely confined will not amount to wrongful confinement under this
section unless he is prevented to go in ay direction he has right to go by creating
voluntary obstruction.
Where a person armed with firearms threats ‘A’ that if ‘A’ tried to go out of the
House, he would fire at him, that person will be guilty of wrongfully confining ‘A’
under Section 340 because ‘A’ is compelled to remain inside the house out of
fear of being fired and killed.
In Madhubala v. Narendra, 1982, a married woman left her husband’s home
and came to live with her parents. The husband in the habeas corpus petition
charged the parents of his wife of wrongful confinement. The Supreme Court
dismissed the petition and held the parents could not be held guilty of wrongful
confinement.
Whereas a person is forced to walk in particular direction under duress, it will
amount, to his wrongful confinement.
In the case of State of Gujurat v. Maganbhai Jogani, 2009, the officials visited
the house of the accused for making some inquiry under the Money Lenders
Act. They were not allowed to go out of the house for some time, but at the
same time they did not apprehend any use of force by the accused in case they
attempted to get out, it was held that the accused had not committed the
offence of wrongful confinement under Section 340 of the Code.
Distinction between Wrongful restrain (Section 339) and wrongful
confinement(Section 340).
Though wrongful confinement is a specific form of wrongful restraint the two
differ in the following aspects:
(1) In wrongful confinement, a person is restrained from proceeding in any
direction beyond a certain area but in wrongful restraint, he is restrained
from proceeding in some particular direction, though free to proceed else
where.
(2) Wrongful confinement is an aggravated form of wrongful restraint.
(3) Wrongful confinement is punishable under section 342 with imprisonment
simple or rigorous up to one year and a fine of Rs. 1000/-whereas wrongful
restraint is punishable under Section 341 with simple imprisonment of one
month and a fine of rs500/-.
(4) Wrongful confinement necessarily involves wrongful restrain but not the
vice versa.
Punishments for wrongful restraint and Wrongful confinement:
1. Whoever wrongfully restrains any person shall be punished with simple
imprisonment from a term which may extend to one month, or with fine which
may extend to five hundred rupees or with both.
2. Whoever wrongfully confines any person shall be punished with imprisonment
for either description for a term which may extend to one year, or with fine
which may extend to one thousand rupees.
Chapter: Criminal force and Assault
Questions: What is force ? When does it becomes criminal force.
• ‘Assault’ is only an attempt or apprehension of using criminal force’ – Discuss.
• Write a note on Criminal force and assault
• Write a short notes on Assault.
• A shakes his fist at B, intending or knowing it to be likely that he may there by
cause b to believe tht A is about to strike B. weather A has committed any
offence?
Introduction: 1. Sections 350 to 358 deals with the offences of criminal force
and assault.
2. While Sections 350 and 351 define the term ‘force’ and ‘assault’ respectively.
3. Sections 352 to 358 contain the penal provisions for these offences.
The term ‘force has been defined in Section 349.
Section 349: Force: a person is said to use force to another, if he causes
motion, change of motion, or cessation of motion as brings that substance into
contact with any part of that other’s body, or with anything which that other is
wearing or carrying or with anything so situated that such contact affects that
other’s sense.
Provided that the person causing the motion, or change of motion, or cessation
of motion, causes that motion, change of motion or cessation of motion in one
of the three ways hereinafter described:
Firstly - By his own bodily power.
Secondly by disposing any substance in such a manner that the motion or
change or cessation of motion takes place without any further act on his part,
Or the part of any person.
Thirdly- by inducing any animal to move, to change its motion. Or to cease to
move.
The section defines ‘force’ which is not an offence by itself. The term ‘force’
denotes exertion of energy or strength producing a movement or change. The
definition of force in this section is united in its use by a human being against
another human being and does not extend to inanimate objects. Thus, a motion
or change of motion or cessation of motion caused to inanimate object such as
property, without affecting human being is not the ‘use of force to another’
within the meaning of section 349, IPC.
The Supreme Court in Chandrika Rao v. State of Bihar, 1967, explained the
meaning of the term force used in Section 349 and held that a person can be said
to have used force against another, if he causes motion, change of motion or
cessation of motion to that other person.
In this case, an assistant Superintendent of commercial taxes paid a surprise
visit to the shop of the accused to inspect the record and books of accounts. He
found two set of account books being maintained in the shop. When he
`turning pages and looking into them, the accused suddenly snatched away both
books from him. The accused was charged under section 353 of IPC. It was
contended on behalf of the accused that mere snatching of books does not
amount not ‘use of force’ as contemplated by Section 3349. Rejecting the plea
of the accused, the supreme court held that snatching away of books from the
hands of the Commercial Tax Superintendent amounted to sue of force as it
caused jerk to his hands and its sensation could also be felt by the hands and
therefore, the accused was guilty of offence under Section 353, IPC.

Section 350: Criminal force: Whoever intentionally uses force to ay person,

without that person’s consent, in order to the committing of any offence, or
intending by the use of such force to cause, or knowing it to be likely that by the
use of such force he will cause injury, fear or annoyance to the person to whom
the force is used, is said to sue criminal force to that other.
Illustrations: (a) Z is riding in a chariot. A lashes Z’s horses, and thereby causes
Them to quicken their pace. Here A has caused change of motion to Z by
inducing the animals to change their motion. A has, therefore used force to Z,
and if A has done this without Z’s consent, intending or knowing it be likely that
he may thereby injure, frighten or annoy Z, A has used criminal force to Z.
(2) A intentionally pulls up a woman’s veil. Here A intentionally uses force to
her, and if he does so without her consent intending or knowing it to be
likely that he may thereby injures, frightens or annoy her, he has used
criminal force to her.
(3) A incites a dog to spring upon Z, without Z’s consent. Here, if a intends to
cause injury, fear or annoyance to z, he uses criminal force to Z.
The preceding section contained the definition of the term ‘force’ whereas
the present section defines ‘criminal force’. According to this section, ‘force’
becomes criminal:
(1) When it is intentionally used to cause injury, fear, annoyance to another
against whom it is used. In English law, when a criminal force has been used, it
is called ‘battery’. The essential ingredients of the offence of criminal force
under, this section are:
(1) The intentional use of force against a person;
(2) Such force must have been used:
(a) in order to commit an offence or
(b) with intention or knowledge to cause injury, fear or annoyance to the
person against whom it is used.
Section 351: assault – whoever makes any gesture, or any preparation intending
or knowing it to be likely that such gesture or preparation will cause any person
present to apprehend that he who makes threat gesture or preparation is about
to use criminal force to that person, is said to commit an assault.
Explanation: Mere words do not amount to an assault. But the words which a
person uses may give to his gesture or preparations, amount to an assault.
Illustrations: (a) a shakes his fist at Z, intending or knowing is to be likely that he
may thereby cause z to believe that a is about to Strike Z. A has committed an
assault. (This was asked in KSLU examinations under short notes)
(b) A takes up a stick, saying to Z, “I will give you a beating.” Here though the
words used by A could in no case amount to an assault, and though the mere
gesture, unaccompanied by any other circumstances, might not amount to an
assault, the gesture explained by the words may mount to an assault.
assault does not involve any personal violence. It is something less than use
of criminal force. The essential ingredients of the offence of assault are as
follows:
(1) A gesture or preparation to sue criminal force;
(2) Such gesture or preparation should be made in the presence of the person
against whom it is directed;
(3) There should be intention or knowledge on the part of the accused that such
gesture or preparation would cause a reasonable apprehension in the mind
of the victim that criminal force would be used against him.
(4) Such gesture and preparation did cause apprehension in the mind of the
victim:
(5) Accused should not have received grave and sudden provocation from the
Person who is intended to be assaulted.
Mere threat does not constitute an assault because it does not involve
apprehension of sue of criminal force against the victim instantaneously or
immediately. Unless it is shown that the accused was about to sue criminal
force them and there preceded by gesture to that effect, it will not constitute
an offence of assault. Mere preparation for use of criminal force makes out an
offence of assault, but such preparation should relate to use of criminal force
against a human being and not on any animal or beast. However, it is not
necessary that criminal force must have been necessarily used.
In Vijay Datt Jha v. Emporer, 1947, the Court held that where a person
threatens a person by pointing a loaded revolver against the complainant, he
commits an offence under Section 351 which is punishable under section 352
and under Section 307 of IPC.
Section 352: Punishment for assault or criminal force otherwise than on grave
provocation: Whoever assaults or uses criminal force to any person otherwise
than on grave and sudden provocation given by that person, shall be punished
with imprisonment of either description for a term which may extend to three
months, or with fine which may extend to five hundred rupees, or with both.
Section 353: Assault or criminal force to deter public servant from discharge of
his duty: Whoever assaults or uses criminal force to any person being a public
servant in the execution of his duty as such public servant, or such public
servants, or to consequence of anything done or attempted to be done by such
person in the lawful discharge of his duty as such public servant, shall be
punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both.
Section 354: Assault or criminal force to woman with intent to outrage her
modesty: Whoever assaults or uses criminal force to any woman, intending ,
whoever assaults or use criminal force to any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her modesty, shall be
punished with imprisonment of either description for a term which shall not be
less than one year but which may extend to five years, and shall also be liable to
fine.
Section 354-A: Sexual harassment and punishment for sexual harassment:
(i) Physical contact and advances involving unwelcome and explicit sexual
overtures; or
(ii) A demand or request for sexual favours; or
(iii) Showing pornography against the will of a woman; or
(iv) Making sexually coloured remarks,
Shall be guilty of the offence of sexual harassment
(2) Any man who commits the offence specified in clause (i) or clause (ii) or
clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for
a term which may extend to three years, or with fine, or with both.
(3)Any man who commits the offence specified in clause (iv) sub-section(1)
shall be punished with imprisonment of either description for a term which
may extend to one year, or with fine, or both.
Section 354: Assault or use of criminal force to woman with intent to disrobe –
any man who assaults or uses criminal force to any woman or abets such act
with the intention of disrobing or compelling her to be naked shall be punished
with imprisonment of either description for a term which shall not be less than
three years but which may extend to seven years, and shall also be liable fine.
Section 354-C: Voyeurism: Any man who watches, or captures the image of a
woman engaging in a private act in circumstances where she would usually have
the expectation of not being observed either by the perpetrator or by any other
person at the behest of the perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of either description for a term
which shall not be less than one years; but which may extend to three years,
and shall also be liable to fine, and be punished on a second or subsequent
conviction, with imprisonment of either description for a term which shall not
be less than three years, but which may extend to seven years , and shall also be
liable to fine
Explanation 1: for the purpose of this section, “private act” includes an act of
watching carried out in a place which, in the circumstances would reasonably be
expected to provide privacy and where the victims genitals, posterior or breasts
are exposed or covered only in underwear or the victim is using a lavatory; or the
victim is doing a sexual act that is not of a kind ordinarily done in public.
Explanation 2: Where the victim consents to the capture of the images or any act,
but not to their disseminating to third persons and where such image or act is
disseminated, such dissemination shall be considered offence under this section.
Section 354: Stalking (1) Any man who:
(i) Follows a woman and contacts, or attempts to contact such woman to foster
personal interaction repeatedly despite a clear indication of disinterest by
such woman; or
(ii) monitors the use by a woman of the internet, email or say other form of
electronic communication, commits the offence of stalking;:
Provided that such conduct shall not amount to stalking if the man who pursued
it proves that –
(i) It was pursued for the purpose of preventing or detecting crime and the
man accused of stalking had been entrusted with the responsibility of
prevention and detection of crime by the State; or
(ii) It was pursued under any law or to comply with any condition or
requirement imposed by any person under any law; or
(iii) In the particular circumstances such conduct was reasonable and justified.
(2). whoever commits the offence of stalking shall be punished on first
conviction with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine and be punished on a second or
subsequent conviction, with imprisonment of either description for a term
which may extend to five years, and shall also be liable to fine.
 Unit IV
Contents: Kidnapping, Abduction _ Sexual offences: rape: Custodial rape, ,
marital rape. Sections 375 - Section 377 – Offences against property : Theft,
robbery and dacoity – Criminal Misappropriation of property – Criminal breach
of trust –receiving of stolen property of stolen property – cheating – fraudulent
deeds and disposition of property.
1. What is Kidnapping ? Distinguish it from abduction?
2. Explain cheating. When does it become cheating by personation?
3. Define forgery. When does it become cheating by personation?
4. When Man is said to commit rape?
5. Define theft. When does theft becomes robbery?
6. Define rape. Discuss its ingredients with recent developments.
7. What is robbery? When does it become dacoity?
9. What is rape? Can a man be guilty of the offence of rape against his own
wife?
Discuss the ingredient of the offence of extortion.
10. “in all robbery there is either theft or extortion” Explain.
11. What is kidnapping from lawful guardianship? How does it differ from
abduction. Explain the offence of cheating. Illustrate your answer.
Short notes:
1. State briefly criminal misappropriation of property and criminal breach of
trust.
2. Write a note on cheating.
3. What is criminal breach of trust.
4. Distinguish kidnapping from abduction.
5. Write note on “Stolen Property”.
6. ‘A’ finds a valuable ring, not knowing to whom it belongs. ‘A’ sells it
immediately without attempting to discover the owner. Whether ‘A’ has
committed any offence?
7. A, by Pledging diamond articles which are not diamond. Which are not
diamonds dishonestly induces ‘B’ to lend money. Decide the liability of ‘A’
with reasons.
9. Unnatural offence.
10. Hindustan Transport Company is entrusted by ‘A’ with property to be carried
by land. The carrier company dishonestly mis-used the property. What is
the offence that carrier company committed?
11. Write short note on – “When theft is Robbery”.
12. ‘A’ threatens to publish a defamatory libel concerning ‘Z’ unless Z gives him
money. He thus induces ‘Z’ to give him money. Whether ‘A’ has committed
any offence?
13. write short notes on theft.
14. ‘A’ a carrier is entrusted by B with a television to be carried by road. A
dishonestly misappropriates the television what offence that A has
committed.
 Kidnapping
Questions: 1. What is Kidnapping ? Distinguish it from abduction?
2. What is kidnapping from lawful guardianship? How does it differ from
abduction.
Section 359: Kidnapping: Kidnapping is of two kinds:
1. Kidnapping from India and
2. Kidnapping from Lawful guardianship.
‘Kidnapping’ literally means ‘child stealing’. This section provides two kinds
of kidnapping. But there may be cases wherein both the kind of kidnapping may
be committed by one single act for instance, when a minor is kidnapped from
lawful guardian ship and taken beyond the Indian territory, it includes both,
kidnapping from India and also kidnapping from lawful guardianship.
Section 360: Kidnapping from India: Whoever conveys any person beyond the
limits of India without the consent of that person, or of some person legally
authorised to consent on behalf of that person , is said to kidnap tht person
from India.
 the offence under this section is committed when a person of any age is
conveyed beyond the territorial limits of India without his or her and consent
case of boys under 16 or girls under 18 years of age, without the consent of
someone who is authorised to give consent on his her behalf. The term
‘consent’ has the same meaning as specified in section 90 of the Indian Penal
Code.
The essential ingredients of the offence of kidnapping under this section are:
1. The person kidnapped should be in India when the offence is committed;
2. He must have been taken outside the territorial limits of India; and
3. The accused must have done the act of kidnapping without that person’s
consent or in case of children (boy below 16 and girl below 18 years of age
without the consent of person who is authorised such consent on his/her
behalf.
Thus, it is evident that the offence of kidnapping from India can be
committed against a person of any age. The consent may be express or implied,
and it has the same meaning as given in section 90 of IPC.
Section 361: Kidnapping from lawful guardianship: Whoever takes or entices
any minor under sixteen years of age, if a male, or under eighteen years of age
if a female, or any person of unsound mind, out of the keeping of the lawful
guardian of such minor or persons of unsound mind, without the consent of
such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation: the words “ lawful guardian” in this section include any person
lawfully entrusted with the care or custody of such minor or other person.
Exception: the section does not extend to the act of any person who in good
faith believes himself to be the father of an illegitimate child, or who in good
faith believes himself to be entitled to the lawful custody of such child, unless
such act is committed for an immoral or unlawful purpose.
The object of this section is to protect children of tender age, a boy under
the age of 16 or a girl under the age of 18 years from being abused for unlawful
purpose and at the same time preserve the rights of parents and lawful
guardians having custody of their minor or insane persons.
The main ingredients of offence of kidnapping under this section are:
(1) Taking or enticing away of a minor or an insane person.
(2) Such minor should be under 16 years of age, if male or under 18 years of
age, if female.
(3) The taking or enticing must be out of the awful guardianship of such minor
or person of unsound mind; and
(4) Such taking or enticing must be without the consent of such guardian.
1. Taking or enticing: the term ‘Enticing’ is an act of the accused by which the
person kidnapped is indeed of his/her won accord to go to the kidnapper.
‘taking’ does not necessarily require force or fraud. So consent of child is of no
relevance, because a minor does not have legal capacity to consent or contract.
In the case of Varadrajan v. State of Madras, 1965, a young girl who was about
to attain majority, voluntarily left her father’s house and went to the accused at
a certain appointed place and straightaway went to the sub-registrar’s office
and registered on agreement to marry. There was no evidence to show that the
accused had ‘taken’ or ‘enticed’ her to go out of the lawful guardianship of her
parents, as he had played no active part to persuade her to leave her parents'
house. The offence under section 361, IPC was therefore not made out in this
case.
2. Age of the minor: this section is attracted only when the age of the minor
kidnapped in case of male is under 16 years and in case of female is 18
years of the relevant time. It will be no defence for the accused to say that
the minor girl who had consented to go with the accused, looked to be a
major or that she told the accused that she is no longer a minor. Thus
mistake of fact is not available as a defence to the accused for the purpose
of offence under Section 361, IPC.
3. Lawful guardianship: Any person who has been lawfully entrusted with the
care and custody of a minor or a person of unsound mind is a lawful
guardian. Even if the father allows his child in custody of a friend or
servant, for a limited purpose or duration, he still continues to be the lawful
guardian of that minor though the actual physical possession has been
temporarily transferred to his friend or other person.
The Calcutta High Court in Bishwanath Ghosh v. State, 1957, held that a minor
though incapable of giving consent for her taking, but if she leaves her home
voluntarily and thus rejects the protection of her lawful guardian, the law
recognises it as her voluntary act and, therefore, so far the question of leaving
the lawful guardianship is concerned, the alleged kidnapper cannot be held
guilty of kidnapping under section 361 of IPC.
4. Without the consent of guardian: In order to constitute an offence under
Section 361, the taking or enticing of the minor out of the keeping of the
lawful guardian must be without guardian’s consent. The consent of the
minor is immaterial. Similarly, consent given by the guardian after the
commission of the offence would not legalise the act of kidnapping.
In Thakurlal D. Vadgama v. State of Gujarat, 1973, the accused was a habitual
visitor to prostitutes. There he happened to meet a sixteen years old married
girl leading a life a of a prostitute and therefore brought her to live with him
without the knowledge of her husband. The charge against the accused for
kidnapping the girl failed because that girl was already with the prostitutes and
therefore, there was no question of kidnapping her from the lawful custody of
her husband.
The Supreme Court in Prakash V. State of Haryana, 2004, reiterated that the
consent of the minor who is taken or enticed is wholly immaterial, it is only
guardian's consent which takes the case out of purview of section 361. Nor it is
necessary to show that taking or enticing had been by means of force or fraud.
Persuasion by the accused person which creates willingness on the apart of the
minor to be taken out of the keeping of the lawful guardian would be sufficient
to attract Section 361 of the Indian Penal Code.
Abduction
Section 362: Abduction: Whoever by force compels, or by any deceitful means
induces, any person to go from any place , is said to abduct that person.
The section merely defines the term ‘abduction’ and therefore, per se it
is not an offence under IPC. The use of force or fraud is an essential element of
a abduction:
The essential ingredients of this section are:
(1) Forcible compulsion or inducement by fraudulent means;
(2) The object of such compulsion or inducement must be the going of a person
from any place.
To ‘induce’ a person means abettor making an active suggestion to make the
victim agree to move to a place where he would otherwise not like to go but for
the abettor’s suggestion. Thus inducing a girl to leave her guardian’s home on a
false representation that she would be married either to the accused himself or
to someone else, would amount to her abduction and make the accused liable
for abduction under this section. Similarly, where a woman was carried away
by force against her will even with the object of restoring her to her husband, it
was held to be a case of abduction as the woman had been forced and
compelled to go from a place to a place where she did not want to go.
In Gurucharan Singh v. State, 1972, the accused induced a minor girl to go with
him by threatening her by pointing a pistol at her, the act amounted for
abduction and not kidnapping from lawful guardianship because the element of
compulsion by force was present in the case.
Abduction as an offence
As stated earlier, abduction per se is not an offence and hence it is not
punishable. However, abduction becomes punishable offence when it is
coupled with one or the other intent as stated below:
Section 363-A: Kidnapping or maiming a minor for purposes of begging – the
new section has been inserted in the Indian Penal Code by Act of 1959 with the
object to prevent the evil of kidnapping of children for exploiting them for
begging. The section provides deterrent punishment for the offence of
kidnapping or obtaining custody of minor children and maiming them and
employing them for begging.
The offence under this section is cognizable, non-bailable and non-
compoundable, and is triable by court of Session.
(1) If it is done with intent to commit murder(section 364).
(2) Where it is done to secretly or wrongfully confine a person (Section 365).
(3) When it is done to induce a woman to compel her marriage(section 365);
(1) When it is intended to subject a person to grievous hurt(Section 367);
(2) Kidnapping or abducting a child under ten years with intent to taking
dishonestly any movable property from the person of such child (Section
369).
Section 363: Punishment for kidnapping : Whoever kidnaps any person from
India or from lawful guardianship, shall be punished with imprisonment of
either description for a term which may extend to seven years and shall also be
liable for fine.

Distinction between Kidnapping and abduction

Though both the offences of kidnapping and abduction involve taking of the
victim from one place to another against his will, yet the two are separate and
distinct offences. The main points of difference between the two may briefly be
stated as follows:
 Kidnapping (Section 361) Abduction (Section 362)
1. Kidnapping from lawful 1. Abduction may be in respect of
guardianship is committed only any person.
in respect of a minor or person
of unsound mind.
2. No such thing
2. The person kidnapped is
removed out of lawful
guardianship.
3. The minor or person of unsound 3. Force, compulsion and deceitful
mind is taken away or enticed to means are used for abduction
go away with the kidnapper and of a person.
means used are immaterial.
4. Consent of the person 4. Consent of the person
kidnapped is immaterial. condones the offence.
 Kidnapping (Section 361) Abduction (Section 362)
5. Intention of the kidnapper is 5. Intent of the abductor is an
irrelevant. important factor for deciding
the gravity of the offence and
punishment.
6. It is not a continuing offence as the
offence is complete as soon as the 6. It is a continuing offence and it
minor or person of unsound mind is continues so long as person
removed from the awful guardianship. abducted is removed from one
place to another.
7. Kidnapping may be of two kinds,
namely :
7. No such classification.
(i) kidnapping from India; and Abduction may be anywhere,
(ii) kidnapping from lawful tht is within India and outside
guardianship. India.
 Trafficking of person
Section 370: deals with trafficking of persons. It provides that certain acts for the
purpose of exploitation of a person amount to trafficking. Such acts are:
(1) Whoever, for the purpose of exploitation:
(a) Recruits Persons
(b) Transports persons
(c) Harbours Persons
(d) Transfers person or persons, or
(e) Receives, a person or persons,
The above acts must be done by :
(i) Using threats, or
(ii) Using force, or any other form of coercion, or
(iii) by abduction, or
(iv) By practising fraud, or deception, or
(v) By abuse of power, or
(vi) By inducement, including the giving or receiving of payments or benefits,
Such inducement must be in order to achieve the consent of any person having
control over the person recruited, transported, harboured, transferred or
received.
The expression “exploitation” shall include any act of physical exploitation or
any form of sexual exploitation, slavery or practices similar to slavery, servitude,
or the forced removal of organs.
The consent of the victim is immaterial in determination for the offence of
trafficking. Whoever commits the offence of trafficking shall be punished with
rigorous imprisonment for a term which shall not be less than seven years, but
which may extend imprisonment for life, and shall also be liable to fine.
Where the offence involves the trafficking of a minor, it shall be punishable with
rigorous imprisonment for a term which shall not be less than ten years, but
which may extend to imprisonment for life.
When a public servant or police officer is involved in the trafficking of any
person then, such public servant or police officer shall be punished with
imprisonment for life, which shall mean imprisonment for the remainder of that
person's natural life, and shall also be liable to fine.
Section 370A. Exploitation of a trafficked person: (1) whoever, knowingly or
having reason to believe that a minor has been trafficked, engages such minor
for sexual exploitation in any manner, shall be punished with rigorous
imprisonment for a term which shall not be less than five years but which may
extend to seven years, and shall also be liable to fine.
(2) Whoever, knowingly by or having reason to believe that a person has been
trafficked, engages such person for sexual exploitation in any manner, shall
be punished with rigorous imprisonment for a term which shall not be less
than three years, but which may extend to five years with fine.
(3) Section371: Habitual dealing in slaves: However habitually imports,
exports, removes, buys, sells traffics or deals in slaves, shall be punished
with imprisonment for life, or with imprisonment of either description for a
term not exceeding ten years, and shall also be liable to fine
 Sexual offences
Question: When Man is said to commit rape?
Section 375, of IPC, relates to the offence of rape: A man is said to commit rape
when he penetrates his penis to any extent into the vagina of a woman.
How far it has gone inside vagina is immaterial. Even slightest penetration
of penis by a man into the vagina of a woman amounts to rape. This is so
because clause(a) of Section 375 says tht penetration by a man of his penis
to any extent into the vagina , mouth , urethra or anus of a woman is rape
Whether a man himself inserts or makes a woman to do so. Even a woman
may insert a man’s penis into her vagina. Clause (a) relates to insertion of
penis into vagina.
Clause (b) of Section 375, provides that insertion to any extent of any object or
part of the body other than penis into the vagina, the urethra or anus of a
woman by a man or making the woman himself to do so with him or any
other person amounts to rape.
Clause (c) of Section 375, provides that if a man manipulates any part of the
body of a woman so as to cause penetration of penis into the vagina, urethra,
anus or any part of body of such woman or makes her to do so with his or any
other person.
Clause (d) provides that if a man applies his mouth to the vagina, anus or
urethra of a woman, it also amounts to rape. If a man, makes a woman to do
such act or whether a man does so himself or makes any other person to do
so.
Under the circumstances falling under any of the following seven descriptions.
First – Against her will.
Secondly- Without her consent..
Thirdly – With her consent, when her consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.
Fourthly – With her consent, when the man knows that he is not her husband
and that her consent is given because she believes that, he is another man to
whom she is or believes herself to be lawfully married.
Fifthly – With her consent when , at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him personally
or through another of any stupefying or unwholesome substance, she is unable
to understand the nature and consequence of that to which she gives consent.
Sixthly – With or without her consent, when she is under eighteen years of age.
Seventhly – When she is unable to communicate consent.
Any act falling in Clause (a) to (d) must be under the circumstances falling under
any of the seven description stated in section.
Prior to this amendment there were only six circumstances, whereas seventh
has been added by amendment of 2013. the inability may be because of any
reason.
Explanation 1 – for the purpose of section 375 again of woman shall also
include labia majora.
Explanation 2- Consent means unequivocal voluntary agreement between man
and woman concerned. This agreement may be expressed by words, gestures or any other
form of verbal or on-verbal communication to participate in specific sexual act.
Proviso to this section provides that a woman who does not physically resist the act of
penetration of penis into the vagina by a man shall not by reason only of tht fact be regarded
as consenting to the sexual activity. Consent must be active consent.
There are two exceptions also:
Exception 1: provides that medical procedure or intervention shall not constitute rape .
Exception 2: provides tht sexual intercourse or sexual acts by a man with his own wife will
not amount to rape unless the wife is below 15 years of age. If the age of wife is under
fifteen years, sexual act will amount to rape.
The above definition was substituted in 2013, prior to substitution the definition of Rape was
“A man is said to commit “rape” who, except in the cases hereinafter excepted , has sexual
intercourse with a woman under circumstances falling under any of the six following
descriptions:
In the very famous case called as Mathura Bai case,1979. Mathura was in love with one boy ,
but the brother of Mathura filed a police complaint against the
boy. On the complaint Mathura Bai, her boyfriend and her brother two other
friends of the boy friend were brought to the Police station. After the statement
of the girl and her boyfriend were recorded, when they asked the leave, the
police constable asked mathura bai to wait in the police station and told other to
wait outside. They took Mathura to toilet . And two police constables raped her.
Unfortunately , the Supreme Court disbelieved Mathura Bai’s testimony and
dismissed it as a bundle of lie , accordingly, acquitted the police constables
from the charges of rape.
Consequent to criticism of the Supreme Court in Mathura case, reviewed its
decision in Tukaram Dhayamu Gurav v. State of Maharashtra, 1982, as a result of
which the Criminal Law (Amendment Act, 1983), was enacted to introduce
significant changes in the existing law relating to rape under the IPC. They are:
1. All the rape cases should be conducted in camera and the identity of the
victim should not be disclosed.
2. In case of rape of a woman under custody of an authorised public servant or
rape of a pregnant woman or gang-raped woman, it shall be presumed that it
was done without her consent unless there is clear evidence to the contrary.
 As a consequential change new sections 376-A, 376-C and 376-D were added
in IPC.
(3) Where the rape is committed while the victim is in jail or police custody, it is
generally difficult to procure eye-witness, therefore in such cased the
corroboration of the victim’s evidence should not be deemed necessary.
(4) Where a husband does sexual intercourse with his wife who is under 15
years of age(now 18 years),without her consent or will, he will not be guilty
of the offence of rape provided a period of more than one year has elapsed
after the incident.
Section 376: Punishment for Rape –(1) Whoever, except in the cases provided
for in sub-section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which shall not less than 7
years but which may extend to imprisonment for life and shall also liable to
fine
(2) whoever,-
(i) within the limits of the police station to which such police officer is
appointed; or
 (ii) in the premises of any station houses; or
(iii) on a woman in such police officer’s custody or in the custody of a police
officer subordinate to such police officer; or
(b) Being a public servant, commits rape on a woman in such public servant’s
custody or in the custody of a public servant subordinate to such or
(c) Being a member of the armed forces deployed in an area by the Central or a
State Government commits rape in such area; or
(d) Being on the management or on the staff of a jail, remand home or other
place of custody established by or under any law for the time being in force
or of a women’s or children’s institution commits rape on any inmate of
such jail, remand home, place or institution; or
(e) Being on the management or on the staff of a hospital, commits rape on a
woman in that hospital; or
(f) Being a relative, guardian or teacher of, or a person in a position of trust or
authority towards the woman, commits rape on such woman; or
(g) Commits rape during communal or sectarian violence; or
(h) Commits rape on a woman knowing her to be pregnant; or
(i) Commits rape on a woman, when she is under sixteen years of age; (Now
18 years); or
(j) commits rape, on a woman incapable of giving consent; or
(k) Being in a position of control or dominance over a woman commits rape on
such woman; or
(l) Commits rape on a woman suffering from mental or physical disability; or
(m) While committing rape causes grievous bodily harm or maims or disfigures
or endangers the life of a woman; or
(n) Commits rape repeatedly on the same woman.
Shall be punished with rigorous imprisonment for a term which shall not be less
than ten years, but which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of that person’s natural life, and
shall also be liable to fine.
The Criminal Amendment Act 2018 has brought the following changes:
It has increase the minimum punishment for rape of women from seven years to life
imprisonment to ten years and to life imprisonment.
Rape and gang rape of girls below the age 12 and 16 years will carry minimum
imprisonment of twenty years and is extendable to life imprisonment (full life)
or death.
Where a woman 16 years of age is raped by one or more persons constituting a
group or acting in furtherance of a common intention, each of those persons shall
be deemed to have committed the offence of rape and shall be punished with
imprisonment for life, which shall mean imprisonment for the remainder of that
person's natural life, and with fine
Now the age limit is increased from 16 to 18 years.
In Narendrer Kumar v. State (NCT) Delhi, 2012, the Supreme Court held that even, if a
woman is of easy virtue or used to sexual intercourse, it cannot be a licence for any
person to commit rape on her. The victim of rape being unchaste woman by itself
cannot be a determinative factor and the Court is required to adjudicate whether
the accused committed rape on the victim on the occasion, complained of.
2012 Delhi Gang rape case/Nirbhaya case.
The gang rape of a 23-year-old student on a public bus, on 16 December 2012,
sparked large protests across the capital Delhi.[13] She was with a male friend
who was severely beaten with an iron rod during the incident.[42] This same
rod was used to penetrate her so severely that the victim's intestines had to
be surgically removed, before her death thirteen days after the attack.
The following day, there was an uproar in the Indian parliament over the
incident. MPs in both houses had set aside their regular business to discuss
the case and demanded strict punishment for those who carried out the
attack. The Leader of the Opposition in the Lok Sabha Sushma Swaraj,
demanded that "the rapists should be hanged". Thousands of people, mostly
young, participated in a massive demonstration on 22 December in
protest. Police arrested six men suspected of rape. And recently in March
2020, the rapists were hanged.
2. Kathua rape case
On 17 January 2018, Asifa an 8-year old minor girl, was raped and murdered
in Rasana village near Kathua in Jammu and Kashmir. The incident made
national news when charges were filed against eight men in April 2018. The
arrests of the accused led to protests from groups, one of which was attended
by two ministers from the Bharatiya Janata Party, both of whom have now
resigned. The rape and murder, as well as the support the accused received,
sparked widespread outrage.
The sensational case, Unnao Rape case : In her statement to the magistrate,
the Unnao rape survivor alleged that Shiva and Shubham Trivedi had abducted
and raped her in December 2018. She had filed a case against the two in March
2019 year. Shubham who was in jail in connection with the rape case, was
released on bail on November 30, 2019.
Immediately after securing bail, Shubham started following and threatening
her. The victim and her family visited the Bihar police station close to the
Sindupur village in Unnao several times but the police turned a deaf ear to the
complaints.
The victim was on her way to a Rae Bareli court when she was abducted by the
five men. Villagers in the Sindupur village told Aaj Tak that they saw the
victim running towards the village while she was still ablaze she ran for one
kilo meter. The woman was helped by a man who was working outside a
house in the village. The victim also called 112 from someone's mobile phone
and informed the police about the incident. She died in the hospital. Now all
the five accused are in Jail as under trials.
After the rape and murder of a veterinarian in Hyderabad on November 28 and
the burning of a rape survivor in Unnao, Uttar Pradesh, on December 5, there
has been an outcry for justice for the victims. Within and outside Parliament
there has been a clamour to make the criminal justice system tougher on an
offender committing sexual crimes against women and children.
Section 376-A Punishment for causing death or resulting in persistent
vegetative state of victim : Whoever, commits an offence punishable under
sub-section (1)or sub-section (2) of section 376 and in the course of such
commission inflicts an injury which causes the death of the woman or causes
the woman to be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life, or with death.
Question: What is rape? Can a man be guilty of the offence of rape against his
own wife?
In the Definition to the Rape under Section 375 , in the exception says the
below:
Exception 2: provides tht sexual intercourse or sexual acts by a man with his
own wife will not amount to rape unless the wife is below 15 years of age. If
the age of wife is under fifteen years, sexual act will amount to rape.
Section 376-B. Sexual intercourse by husband upon his wife during separation:
Whoever has sexual intercourse with his own wife, who is living separately,
whether under a decree of separation or otherwise, without her consent, shall
be punished with imprisonment of either description for a term which shall not
be less than two years but which may extend to seven years, and shall also be
liable to fine .
Explanation: In this section, “sexual intercourse” shall mean any of the acts
mentioned in clauses (a) to (d) of Section 375.
section 376-b provides punishment for sexual intercourse by husband upon
his own wife during separation , whether under a decree of separation or
otherwise. In case of sexual intercourse by husband with his own wife without
her consent shall be punished with imprisonment of either description for a
term which shall not be less than two years but which may extend to seven
years and shall also be liable to fine. The amount of fine is not provided but it
must be reasonable.
Marital rape or spousal rape is the act of sexual intercourse with one's spouse
without the spouse's consent. The lack of consent is the essential element and
need not involve physical violence. Marital rape is considered a form
of domestic violence and sexual abuse. Although, historically, sexual
intercourse within marriage was regarded as a right of spouses, engaging in
the act without the spouse's consent is now widely classified as rape by many
societies around the world, repudiated by international conventions, and
increasingly criminalized.
The issues of sexual and domestic violence within marriage and the family
unit, and more specifically, the issue of violence against women, have come
to growing international attention from the second half of the 20th century.
Still, in many countries, marital rape either remains outside the criminal law,
or is illegal but widely tolerated. Laws are rarely being enforced, due to factors
ranging from reluctance of authorities to pursue the crime, to lack of public
knowledge that sexual intercourse in marriage without consent is illegal.
In Bishnudayal v. State of Bihar, 1981,where the victim, a girl of 13 or 14 years of age,
who was sent by her father to accompany the relatives of his elder daughter’s
husband to look after her elder sister for some time, was forcibly ‘married’ to the
appellant and had sexual intercourse with her, the accused was held liable for rape
under section 376 of IPC.
However under section 376B of IPC sexual intercourse with one’s own wife without
her consent under a decree of judicial separation is punishable by 2 to 7 years
imprisonment.
Legal Context Though child marriages are legally prohibited, husbands of girls
between 15-18 years old were previously exempt from criminal prosecution for rape
under Exception 2 of Section 375 of the Indian Penal Code. The Prohibition of Child
Marriage Act (PCMA) establishes 18 as the minimum legal age of marriage for girls,
and recognizes such marriages as voidable on the request of a child married under the
legal age. The exception in the Indian Penal Code allowed child marriage to legitimize
what would otherwise be considered rape, and created impunity for sexual violence
faced by married girls under 15 years old. Exception 2 was also inconsistent with a
recent Indian Penal Code amendment, which raised the age of sexual consent to 18,
and with legal protections for children established under the Juvenile Justice Act and
the Protection of Children from Sexual Offences Act.4
 Independent Thought V. Union of India, 2013, The petitioner argued that Exception
2 created an unconstitutional classification between wives under the age of 15, and
those between 15 and 18 years of age (‘the classification’). But for this classification,
all wives would be covered by the statutory rape provision. This was the limited
issue before the Court, and the decision is emphatic that nothing in it should be
extended to marital rape in general. The Court found in favour of the petitioner,
holding that the marital rape exemption should only cover cases where the woman
is 18 years or older.
The Hon’ble Supreme Court of India on 11th October 2017, In view of the
demand to remove the exception 2 under Section 375, the SC, is of the opinion that
Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is
liable to be struck down on the ground that, It is arbitrary, capricious, whimsical
and violative Article 14, 15 and 21.
Therefore, Exception 2 to Section 375 IPC is read down as follows:
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18
years, is rape".
To conclude, in India Martial rape is not offence if the age of the wife is more than 18
years of age, even though there is huge demand in India to remove this exception.
Section 376-C: sexual intercourse by a person in authority : Whoever, being:
(a) In a position of authority or in a fiduciary relationship; or
(b) A Public Servant; or
(c) Superintendent or manager of a jail, remand home or other place of custody
established by or under any law for the time being in force, or a women’s or
children’s institution; or
(d) On the management of a hospital or being on the staff of a hospital,
Abuses such position or fiduciary relationship to induce or seduce any woman
either in his custody or under his charge or present in the premises to have sexual
intercourse with him, such sexual intercourse not amounting to the offence of
rape, shall be punished with rigorous imprisonment of either description for a
term which shall not be less than five years, but which may extend to ten years ,
and shall also be labile to fine .
Explanation 1: In this section, “sexual intercourse”, shall mean any of the acts
mentioned in clauses (a) to (d) of section 375.
Explanation 2 : For the purposes of this section, Explanation 1 to section 375 shall
be applicable.
Section 376-D: Gang Rape: where a woman is raped by one or more persons
constituting a group or acting in furtherance of a common intention, each of those
persons shall be deemed to have committed the offence of rape and shall be
punished with rigorous imprisonment for a term which shall not be less than twenty
years, but which may extent to life which shall means imprisonment for the remainder
of that person’s natural life, and with fine provided tht such fine shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim.
Provided that such fine shall be just and reasonable to meet the medical expenses
and rehabilitation of the victim.
Provided that further that any fine imposed under this section shall be paid to the
victim.
Section 376-E. Punishment for repeat offenders: Whoever has been previously
convicted of an offence punishable under section 376 or section 376-A or section 376-
D and is subsequently convicted of an offence punishable under any of the said
sections shall be punished with imprisonment for life which shall means
imprisonment for the remainder of that person’s natural life, or with death.
 Unnatural Offences
Section 377: Unnatural offences: Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall description
for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described.
Essential Ingredients of the offence under Section 377: the essential
ingredients of the offence under Section 377 of IPC are as follows:
(1) The accused must have had carnal intercourse with a man, woman or
animal.
(2) Such camel intercourse should be against the order of the nature that is, it
should be unnatural.
(3) The accused must have done the unnatural act voluntarily; and
(4) There must have been penetration.
As in the case of rape, slightest penetration will be sufficient to constitute
an offence under Section 377 also. That is to say, that the penetration need
 not be complete nor is emission necessary for the offence. It is significant that
consent of the victim is not at all relevant in case of an unnatural offence
committed under Section 377. therefore, one who has passive role in the
unnatural sexual act may also be punished as an abettor.
Section 377 of the Indian Penal Code is a section of the Indian Penal
Code introduced in 1861 during the British rule of India. Modelled on
the Buggery Act of 1533, it makes sexual activities "against the order of nature"
illegal. On 6 September 2018, the Supreme Court of India ruled that the
application of Section 377 to consensual homosexual sex between adults was
unconstitutional, "irrational, indefensible and manifestly arbitrary",[1]but that
Section 377 remains in force relating to sex with minors , non-consensual sexual
acts, and bestiality.
• Portions of the section were first struck down as unconstitutional with respect
to gay sex by the Delhi High Court in July 2009. That judgement was
overturned by the Supreme Court of India on 11 December 2013 in Suresh
Kumar Koushal V. Naz Foundation. The Court held that amending or repealing
section 377 should be a matter left to Parliament, not the judiciary.[On 6
February 2016, a three-member bench of the Court reviewed curative
petitions submitted by the Naz Foundation and others, and decided that they
would be reviewed by a five-member constitutional bench.
On 24 August 2017, the Supreme Court upheld the right to privacy as a
fundamental right under the Constitution in the
landmark Puttaswamy judgement. The Court also called for equality and
condemned discrimination, stated that the protection of sexual orientation lies
at the core of the fundamental rights and that the rights of the LGBT population
are real and founded on constitutional doctrine. This judgement was believed
to imply the unconstitutionality of section 377.
In January 2018, the Supreme Court agreed to hear a petition to revisit the
2013 Naz Foundation judgment. On 6 September 2018, the Court ruled
unanimously in Navtej Singh Johar v. Union of India that Section 377 was
unconstitutional "in so far as it criminalises consensual sexual conduct between
adults of the same sex ".The judgment was given by a five judges bench
comprising the then Chief Justice of India Dipak Misra.
 Offences Against Property
This chapter consists of Sections378 to 462 of the Indian Penal Code. The
chapter may broadly be divided into three main classes as follows:
I Offences relating to deprivation of property: they include:
(i) Theft (section 378)
(ii) Extortion (Section 383)
(iii) Robbery (section 390)
(iv) Dacoity (section 391)
(v) Criminal breach of trust(Section 405)
(vi) receiving stolen property (Section 410 – 411)
(vii) Cheating (section 415)
(ix) Disposal of property by fraudulent deed (section 421-424).
II Offences causing damage to property: this includes mischief(Section 425)
and its fourteen kinds contained in section 425 to 440 of IPC.
III Criminal trespass to property with the object of committing some other
offence(Section 441 to 462) – this includes:
(i) Criminal trespass (Section 441)
(ii) House trespass (Section 442)
(iii) Lurking house tresspass(Section 443)
(iv) House breaking (section 445).
(v) House braking by night(Section 446).
(vi) House trespass for committing other offences and punishemtns
therefore(secton447 to 462).
Theft
Questions: 1. Define theft. When does theft becomes robbery?
2. “in all robbery there is either theft or extortion” Explain.
The offences of theft is described in five sections, namely sections 378 to 382,
both inclusive.
Section 378: Theft: Whoever, intending to take dishonestly any movable
property out of the possession of any person without that person's consent,
moves that property in order to such taking, is said to commit theft.
Explanation 1 – A thing so long as it is attached to the earth, not being movable
property, is not the subject of theft: but it becomes capable of being the
subject of theft as soon as it is severed from the earth.
Explanation 2 – a moving effected by the same act which effects the severance
may be a theft.
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 its consequences of the
motion so caused, is moved by that animals.
Explanation 5: the consent mentioned in the definition may be express or implied
and may be 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 of dishonestly taking the
tree out of Z,s possession without Z,s consent. Here, as soon as A has severed
the tree in order to such taking , he has committed theft.
(b) A finds a ring belonging to Z on a table in the house which Z occupies. Here
the ring in in Z’s possession, and if A dishonestly removes it, A commits theft.
(c) A finds a ring lying on the high road, not in the possession of any person. A by
taking it, commits no theft, though he may commit criminal misappropriation
of property.(KSLU question for Short notes)
(d) A sees a ring belonging to Z, laying on a table in Z’s house. Not venturing to is
appropriate the ring immediately for fear of search and detention, A hides the
ring in a place where it is highly improbable that it will even be found by Z,
(e) with the intention of taking the ring from the hiding place and selling it
when the loss is forgotten. Here A, at the time of first moving the ring
commits theft.
(f) A is the paramour of 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. In this was impression, A has
not committed theft.
(g) A is the paramour of 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 no
authority from Z to give. If A takes the property dishonestly, he commits
theft,
(h) A, in good faith believing property belonging to Z to be A’s own property,
takes that property out of B’s possession. Here, as A does not take
dishonestly, he does not commit theft.
 This section defines ‘theft’. Theft can only be committed of a movable
property and therefore, an immovable property cannot be a subject-matter of
the theft. According to the explanation 1 of the Section, property attached to
the earth is immovable property incapable of being subjected to theft, but as
soon as it is severed from the earth, it becomes movable property capable of
being subject of the theft. There are all five explanations appended to the
section which explain the essential ingredients of the offence of theft as follow:
1. It should be a movable property;
2. Such property should be in possession of some person;
3. Existence of a dishonest intention to take that movable property out of that
person’s possession;
4. Without that person’s consent; and
5. Remove of that property.
1. Property must be movable and not immovable : So long as a thing remains
permanently attached to the earth, it remains an immovable property and
cannot be subject- matter of theft, but as soon as it is separated from the
Earth, it becomes a movable property capable of subject-matter of theft. Thus
a tree fallen on the ground detached from the earth, cart load of earth, stones
teak wood, sand etc., are all movable properties. A house being attached to
land, is not a movable property , but the contents thereof are movable in
nature and therefore they are capable of being stolen.
Idols so long as an idol is fixed in a place, It is an immovable property and
therefore not a subject of theft. But if it is severed from its fixed place and be
moved from one place to another, it being a movable property, can be a subject
thereof. Even though Human beings are movable they are not capable of being
stolen, because they are not treated as a movable property. But removable of
a buried dead body from a burial or coffin or a mummy or a skeleton which is
being used as an article for research or teaching will amount to theft.
Electricity, water, gas, running water in irrigation canals, etc. are all considered
as movable property capable of theft. Slowing down meter intentionality with
the dishonest purpose of avoiding electric charges amounts to theft of
electricity.
2. Dishonest Intention : Dishonest intention of the accused to take movable
property is one of the main ingredients of the offence of theft. An intention is
said to be ‘dishonest’ when the taker of property intends to cause ‘wrongful
gain’ to one Peron and ‘wrongful loss’ to another. There cannot be a theft
where dishonest intention of the taker of property is totally absent. Thus taking
someone’s movable property by a person under a mistake of law that he has
right to take it, does not amount to theft. The intention to take dishonestly
must be present at the time of moving the property.
As provided in illustration (1) of Section 378, it is not necessary that taking in
theft should be for the purpose of retaining the property permanently. Thus in
Pyrelal Bhargave v. State, 1963, the accused , who was a superintendent in a
Government department took away a file to home ad made it available to
another who replaced certain paper and the accused returned the file and
placed it in its original p[lace. He was held guilty of the theft as all the five
essential ingredients were present in the case.
Theft of one’s own property: A person may be held guilty of committing the
theft of his won property if he takes it dishonestly from another. For example: If
A, having pawned his watch to Z, takes it out of 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.
3. Taking way or removing the property: another essential element for the
offence of theft is removal of property from the possession of another with the
intention to take it.
In Ram Ekbal Rai v. Jaldhari Pande , 1972, the accused seized certain cattle of
the complainant as they had trespassed on his land and had damaged his crop,
therefore, he was taking those cattle to the pound. The complainant’s plea was
that the accused had no legal right on the said land or crop and therefore his
action amounted to theft. The Court however, held the accused not guilty of
theft howsoever mistaken he might have been about his right move the land or
crop., because he had not acted dishonestly, which is an essential ingredient of
the offence of the theft.
4. The property must be moved: The offence of theft is completed when there
is dishonest removal or moving of property. Carrying away of trees after felling
them is theft.
Section 379: Punishment for theft: Whoever commits theft shall be punished
with imprisonment of either description for a term which may extend to three
years, or with fine or with both.
Section 380. Theft in dwelling house, etc: Whoever commits the theft in any
building, tent or vessel, which building tent or vessel is used as a human
dwelling, or used for the custody of property, shall be punished with
imprisonment of either description for a term which may extent to seven years
and fine.
Section 381. Theft by clerk or servant of property in possession of master:
Whoever, being a clerk or servant , or being employed in the capacity of clerk
of servant, commits the theft in respect of any property in the possession of his
master or employer, shall be punished with imprisonment of either description
for a term which may extent to seven years, and shall also be liable for fine.
Section 382. Theft after preparation made for causing death, hurt or restraint
in order to the committing of the theft: Whoever commits theft, having made
preparation for causing death, or hurt, or restraint, or fear of death, or of hurt
or of restraint, to any person, in order to the committing of such theft, or in
order to the retaining of property taken by such theft, shall be punished with
rigorous imprisonment for a term which may extent to ten years and shall also
be liable to fine.
Illustrations: A commits theft on property in Z’s possession; and while
committing this theft, he has a loaded pistol under his garment having provided
this pistol for the purpose of hurting Z in case Z should resist. A has committed
the offence defined in this section.
Extortion
Section 383: Extortion: Whoever intentionally puts any person fear of 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”.
(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.(KSLU Exam Short notes Question)
(b) A threatens that he will keep Z’s child in wrongful confinement, unless Z,
will sign and delivers the note. A has committed extortion.
(c) A threatens to send club-men to plough Z’s field unless Z will sign and deliver
to b a bond binding Z under a penalty to deliver certain produce to B, and
thereby induces Z to sign and deliver it to A. Z signs and delivers the bond .
A has committed extortion.
(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z, to sign or affix
his seal to a blank paper and delivers it to A. Z signs and delivers the paper
to A. Here, as the a paper so signed may be converted into a valuable
security. A has committed extortion.
This section defined ‘extortion’ which is an offence more graver than theft but
lesser than robbery. That is, it falls in between the category of theft and
robbery. Thus, where a person takes away property from the possession of
 another person without the latter’s consent dishonestly, it will constitute an
offence of theft, and if he snatches away the property from the possession in
his presence, it will be an offence of robbery. But if he compels the possessor
to apart with property under the threat of causing hurt or injury, it will be
deemed to have committed the offence of extortion. Significantly, in the
modern computer-age, web-jacking is an improvised form of extortion, wherein
the accused(who may be unknown) sends threatening E-mails to the victim to
cause him injury and extorts property from him.
The essential ingredients of the offence of extortion are:
(1) Intentionally putting a person in fear of hurt or injury to himself or another;
and
(2) The purpose of which is to dishonestly induce the person who is put in fear
to deliver to any person any property or reputation of the person.
The injury contemplated under this section need not necessarily be bodily
harm or hurt, but it may be mental or injury to the property or reputation of
the person.
Intentionally putting a person in fear: In the case of R. S. Nayak v. A.R. Antulay.
1986, the allegation against the then Chief Minister of Maharashtra, Mr. A. R.
Antulay was that he indirectly pressurised the cooperative sugar mill owners
whose cases were pending in the Bombay Government , that their cases would
be sympathetically considered if they gave political donation to the Congress
party which was in power. The supreme Court declined to accept it as a case
of extortion under Section 383 and held that there was no evidence to show
that Mr. Antulay had threatened the cooperative sugar mill owners to compel
they to give political donations.
The fear or threatening for the purpose of Section 383 must have been before
parting with the property and not thereafter.
Inducing a person dishonestly: The taking away of property by the accused must
be dishonest by inducing a person to apart with the property. That is , it must
result in causing wrongful gain to the accused or wrongful loss to the victim or
extortion.
Where a Police officer who had arrested a person threatened him that he
would not grant him bail until he paid Rs. 500/-to him, and released that person
on bail after extortion Rs. 500/-. He was held guilty for the offence of extortion.

Section 384: Punishment for extortion: Whoever commits extortion shall be

punished with imprisonment of either description for a term which may extend
to three years, or with fine, or with both.

Distinction Between Theft and Extortion

Though obtaining property by inducing a person dishonestly is the common
element in both, theft and extortion, but the two offences are different from
one another in the following aspects:
 Theft Extortion
1. In theft, the property which is 1. While in case of extortion, it may
subject of theft must be movable. be movable or immovable, and it
may even be a valuable security.
2. Whereas in extortion, the victim is
2. In theft, the accused himself induced to deliver or give the
same to the accused or to any
removes the property and takes it, other person to whom the
accused directs it to be given.
3. But in extortion consent of the
possessor is obtained by the
accused by putting the former in
3. The property is taken without the fear of causing him injury.
consent of the possessor in case of 4. But in extortion, the property is
a theft. obtained by using threat to induce
the victim to deliver the property
which essentially involves an
4. In theft, there is no element of element of force, though it may
force. not have been actually used.
 Robbery and Dacoity
Questions: 1. What is robbery? When does it become dacoity?
2. How do theft and extortion become robbery.
3. What is robbery? When does it become dacoity?
4. In all robbery there is either theft or extortion” Explain.
Section 390 : Robbery: In all robbery there is either theft or extortion.
When theft is robbery: Theft is “Robbery” if, in order to the committing of the
theft, or in committing the theft or in carrying away or attempting to carry away
property obtained by the theft, the offender, for that end , voluntarily causes or
attempts to cause to any person death or hurt or wrongful restraint or fear of
instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery: Extortion is “robbery” if the offender, at the time
of committing the extortion, is in the presence of the person put in fear, and
commits the extortion by putting that person in fear of instant death, or instant
hurt, or of instant wrongful restraint to that person or to some other person,
And, by so putting in fear, induces the person so put in fear, then and there to
deliver up the thing extorted.
Explanation: the offender is said to be present if he is sufficiently near to put the
other person in fear of instant death, of instant hurt, or of instant wrongful
restraint.
(a) A holds Z down and fraudulently takes ‘s money and jewels from Z’s cloths
without Z’s consent. Here a has committed theft, ad in order to the
committing of that theft, has voluntarily caused wrongful restraint to Z, A has
therefore committed robbery.
(b) A meets Z on the high road, shows a pistol and demands Z’s purse. Z in
consequence, surrenders his purse. Here a has extorted the purse from z by
putting him in fear of instant hurt, and being at the time of committing the
extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z’s child on the high road. A takes the child and threatens to
fling it down a precipice, unless Z delivers his purse. Z, in consequence
delivers his purse. Here a has extorted the purse from Z, by causing Z to be in
fear of instant hurt to the child who is there present. A has therefore committed
robbery on Z.
(d) A obtains property from Z, by saying: “Your child is in the hands of my gang,
and will be put to death unless you send us ten thousand rupees”. This is
extortion, and punishable as such; but it is not robbery, unless Z is put in fear
of the instant death of his child.
As defined in this section, robbery is an aggravated form of theft or extortion.
There cannot be robbery, if there is no theft or extortion. The main object of all
the three offences, namely, theft, extortion and robbery is wrongful gain of the
property, the only difference is in method adopted to obtain such gain . In
robbery the property is taken from the possession of a person in his presence
and against his will, by putting him in fear and using violence against him.
The Explanations and illustrations (b) and (c) of section 390 make the
distinction between extortion and robbery clear by illustrating when extortion
becomes robbery.
The essentials elements of robbery are as follows:
1. Voluntarily causing death, hurt or wrongful restraint or fear thereof: the
offender should voluntarily cause death, hurt or wrongful restrain to any
person, then theft would become robbery and not otherwise.
Theft becomes robbery, when I order to facilitate the committing of theft or
carrying away or attempting to carry away the stolen property, the accused ,
that is theft, voluntarily causes or attempts to cause death, hurt or wrongful
restrain or fear of instant death, instant hurt or instant wrongful restraint.
Similarly, extortion, become robbery, if the offenders ,that extortionist, at the
time of committing the extortion, in the presence of victim puts him in fear of
instant death, instant hurt or of instant wrongful restraint, either to that person
or to some other person in whom that person has an interest.
2. Violence or force must have been used voluntarily to achieve the object of
theft or extortion: It must be stated tht Section 390 applied only however
the death, hurt or wrongful restraint or fear therefore is caused for the
purpose of achieving the end of committing theft or carrying away stolen
property.
Thus,, if the accused has abandoned the stolen property while running away, he
is chased by others and he sues violence against thee persons, such violence
not having been committed to achieve the end of theft or carrying away the
stolen property, would not amount to an offence of robbery under section 390
of IPC, instead it will be an offence of theft.
In Hazrat Sheikh v. Emperor, 1866, when the two accused persons were
committing theft of mangoes from a mango tree when the watchman came
there all of a sudden. One of the accused gave him a lathi blow as a result o
which he fainted and fell down on the ground. The accused were held guilty or
robbery under Section 390.
In Teekai Bheer v. emperor, 1866, the accused pulled the nose-ring of a woman
thereby causing hurt to her tip of the nose and thus caused bleeding from it.
The accused was held guilty of robbery.
Where several accrued were involved in a robbery case and one of them was
deputed to stand outside the house to watch and inform about any possible
danger so as to make the act of robbery easy, he cannot escape conviction and
punishment under section 380 on the plea that he neither participated in the
act of robbery nor caused any injury or hurt to anyone. He will be convicted as
a co-accused along with other accused involved in committing the offence of
robbery under Section 39/34.
Section 391: Dacoity: When five or more persons conjointly commit or attempt
to commit a robbery, or where the whole number of persons conjointly
committing or attempting to commit a robbery, and persons present and aiding
such commission or attempt, amount to five or more, every person so
committing, attempting or aiding, is said to commit ‘Dacoity’.
When robbery is committed by five or more persons, it becomes dacoity.
It is an offence punishable even at the stage of preparation and anyone who
makes preparation to commit a dacoity shall be punishable under Section 399
of the IPC. The definition of dacoity as given in this section shows that law
recognises no difference between attempt to commit dacoity and actual
commission of the offence of dacoity, and both are treated alike. In other
words, attempt to commit a dacoity is also dacoity.
The section dos not contemplate that all the five or mor persons must actually
commit or attempt to commit robbery. If the number of persons aiding,
attempting or actually committing robbery is five or more, it will constitute the
offence of dacoity, and all of them will be guilty of this offence. The minimum
number of persons required for participating in robber being five or more, to
make it dacoity, this offence is also called gang-robbery.
Since attempt to commit dacoity is also treated as a dacoity, if the attempt to
commit this offence fails even then the offenders will be held guilty for the
offence of dacoity and sentenced under section 395 of IPC.
In Antum v. State of Manipur, 1962, the High Court made it clear that mere
presence of the accused at the place of dacoity is not sufficient for his
conviction unless it is proved that he was directly or indirectly aiding in the
commission of the offence or in an attempt to commit the offence.
Conviction of less than five persons for dacoity: Where in a dacoity case, there
were five accused prosecuted and out of these two were acquitted holding that
only three took part in the commission of the offence, these three could not be
convicted of dacoity, as the number of accused was less than five as required
under section 391, IPC.
Section 392:Punishemnt for robbery: whoever commits robbery shall be
punished with rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine; and, if the robbery be committed on the highway
between sunset and sunrise, the imprisonment may be extended to fourteen
years.
Section 393: Attempt to commit robbery: whoever attempts to commits
robbery shall be punished with rigorous imprisonment for a term which may
extent to seven years, and shall also be liable to fine.
Section 395: Punishment for dacoity: Whoever commits dacoity shall be
punished with imprisonment for life, or with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine.
The offence of dacoity being in the nature of robbery or attempted robbery
committed by five or more persons, there cannot be a case of attempt to
commit robbery under section 511. therefore sections 395 and 511 can never
co-exist.
In Kusho Mehto v. State of Bihar, 1980, the accused were carrying away stolen
property which they had robbery from a house. When they were chased by
some persons, the accused threw crackers on them to scare them, they were
held guilty and sentenced under section 395, IPC.

Criminal Misappropriation of Property

Question: State briefly criminal misappropriation of property and criminal
breach of trust.
Section 403: Dishonest misappropriation of property: Whoever dishonestly
misappropriates or converts to his own use movable e property shall be
punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both.
(a) A takes property belonging to Z’s possession, in good faith believing, at the
time when he takes it, that the property belongs to himself. A is not guilty of
theft; but if, after discovering his mistake, dishonestly appropriates the
property to his own use, he is guilty of an offence under this section.
Explanation 1: A dishonest misappropriation for a time only is a
misappropriation within the meaning of 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 of any other
person, and takes such property for the purpose of protecting it for, or of
restoring it to, the owner does not take or misappropriate it dishonestly, and is
not guilty of an offence; but he is guilty of the offence above defined, if he
appropriates it to his own use, when he knows or has the means of discovering
the owner, or before he has used reasonable means to discover and give notice
to the owner and has kept the property for a reasonable time to enable the
owner to claim it.
What are reasonable means or what is reasonable time in such a case, is a
question of fact.
It is not necessary that the finder should know who is the owner of the
property, or that any particular person is the owner of it; it is sufficient if, at the
time for appropriating it, he does not believe it to be his own property, or in
good faith believe that real owner cannot be found.
(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 valuable ring, not knowing to whom it belongs. A sells it
immediately without attempting to discover the owner. A is guilty of an
offence under the section. (KSLU Exam Short notes Question)
The section defines criminal misappropriation and also prescribes punishment
for this offence. The offence of criminal misappropriation can be committed
only with respect to a movable property and not against immovable property.
The offence consists in retaining the movable property wrongfully or
fraudulently with dishonest intention of which the offender had innocent
possession initially. Such misappropriation or conversion of the property is
 either permanently or for a temporary duration.
Thus when a person innocently, acquires possession of some movable property,
but due to subsequent change of intention, he dishonestly misappropriates it or
retains it wrongfully, he commits an offence of criminal misappropriation. The
illustrations in the section show how original innocent taking changes into
criminal misappropriation by subsequent change of intention to keep or retain
it dishonestly for wrongful purpose. In short, dishonestly putting another
person's property to one’s own use constitutes the offence of criminal
misappropriation.
Ingredients: the essential ingredients of this offence are as follows:
(1) The property should be that of the complainant;
(2) The accused must have misappropriated the same; and
(3) He should have done so with a dishonest intention.
(4) It would be seen that the offence of criminal misappropriation of property
can be committed only after a movable property comes under the
possession of the accused innocently. Therefore, an abandoned property can never
be subject of this offence.
The word ‘Misappropriate’ used in the section refers to keeping of property
wrongfully or to hand it over wrongfully to some other person than one who is legally
entitled to it or to sue it wrongfully. Obviously, such keeping, giving or use of the
property must be with dishonest intention.
Finder of property; The liability of finder of property is well illustrated in explanation
and illustrations appended to section 403. a person who takes a thing which belongs
to no one or abandoned, commits no offence, if he appropriates it for himself.
However, the position of the finder of a lost property is differed and a person who
takes up and dishonestly converts to his own use the lost property which he so found,
he shall be liable for criminal misappropriation.
The second explanation spells out finders duty and states that where a finder of
movable property which is not in possession of any person takes such property with a
view to finding out its true owner and restores it to him, he commits no offence. But
he shall be liable under this section if he dishonestly misappropriates it or converts
the some to his won use.
Section 404: Dishonest misappropriation of property possessed by deceased
person at the time of his death: Whoever, dishonestly misappropriates or
converts to his own use property, knowing that such property was in the
possession of a deceased person at the time of that person’s decease, and has
not since been in the possession of any person legally entitled to such
possession, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine, and if the
offender at the time of such person’s decease was employed by him as a clerk
or servant, the imprisonment may extend to seven years.
Distinction between theft and Criminal misappropriating
(1) Initial taking away of property is wrongful in case of theft. But in criminal
misappropriation initially it is innocent and lawful but subsequent change in
it with a dishonest intention makes it an unlawful offence.
(2) In theft, the person in possession of property is dispossessed of a wrongfully
but in criminal misappropriation, the offended is already in possession of
the property and its unlawful misappropriation creates an offence under
Section 403, IPC
(3) In case of theft, removal of property without consent is an essential
element, but in criminal misappropriation, moving of property may even be
lawful but subsequent dishonest intention to misappropriate it, converts it
into the offence.
(4) Though dishonest intention is a common ingredient of both , theft and
criminal misappropriation, but in theft, it precedes taking away the property
while in case of criminal misappropriation, it follows the taking of such
property.
(5) In case of theft, it is not necessary that person in possession of property
must be the owner of it but ownership of property is an essential element
of the offence of criminal misappropriation.
Criminal Breach of Trust
Section 405 to 409 deal with criminal breach of trust. Section 405 defines
Criminal breach of trust , whereas Section 406 provides punishment for it
Section 407, 408 and 409 deal with certain aggravated forms, of criminal breach
of trust.
Section 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 of that property
in violation of any direction of law prescribing the mode in which he has made
touching the discharged, or of any discharge of such trust or wilfully suffers any other
person so to do, commits “criminal breach of trust”.
Explanation 1 : a person, being an employer of an establishment whether exempted
under Section 17 of the Employees Provident Fund and Miscellaneous provisions Act,
1952 or not, who deducts the employee’s contribution from the wages payable to
the employee for credit to a Provident fund of Family Pension Fund established by
any law for the time being in force, shall be deemed to have been entrusted with the
amount of the contribution so deducted by him and if he makes default in the
payment of such contribution to the said fund in violation of the said Act, shall be
deemed to have dishonestly used the amount of the said contribution in violation of a
direction of law as aforesaid.
Explanation 2 – A person, being an employer, who deducts the employee’s
contribution from the wages payable to the employees for credit to the Employees for
credit to the employee’s State Insurance Corporation established under the
Employee’s State Insurance Act, 1948, shall be deemed to have been entrusted
with the amount of the contribution so deducted by him and if he makes
default in the payment of such contribution to the said Fund in violation of the
said, Act, shall be deemed to have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.
Illustrations: (1) A, being executor to the will of a deceased person, dishonestly
disobeys to law which directs him to divide the effects according to the will, and
appropriates them to his own use. A has committed criminal breach of trust.
(2) 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
of trust.(KSLU examination short notes question)
The Supreme Court in Jaswantrai Manilal Akhaney v. State of Bombay, 1956
explaining the meaning and extent of the offence of criminal breach of trust has
observed that there must essentially be at least two parties, one who entrusts
the property and the other to whom the property is entrusted for the benefit
of the person who has entrusted it or any other beneficiary for whose benefit of
the property is entrusted. Thus, the transferor remains the owner of the
property and the transferee has only the legal custody of the property for the
benefit of the transferor himself or some one else. The person to whom the
property is entrusted under no circumstances acquire any right to dispose of
the property in contravention of the condition or purpose of entrustment as
directed by the transferor. Entrustment of property is therefore, sine qua non
for the offence of criminal breach of trust.
Ingredients:
The essential ingredients of the offence of criminal breach of trust under
Section 405 are as follows:
1. The accused must have been entrusted with the property or domain over it;
and
2. He must have dishonestly misappropriated such property or converted it for
his own use or disposed it of in violation of such trust.
Hence the following are necessary for the offence criminal breach of trust :
1. Entrustment of property: it denotes handing over the possession of
property for some specific purpose with out transferring the proprietary
right in it.
2. Domain over Property: the expression ‘domain over property’ connotes
control over the property. The legal position of a director of a company
towards the company’s property is that of a trustee and it is because of the
fiduciary relationship that he has domain and control over the property and
the assets of the company.
3. Dishonest Misappropriation: the essence of Section 405 lies in dishonest
misappropriation of the entrusted property. The word ‘dishonesty’ as
defined in Section 24, IPC means causing wrongful gain or wrongful loss to a
person and ‘wrongful loss’ is defined in section 23 , IPC.
Section 406: Punishment for criminal breach of trust: Whoever commits
criminal breach of trust shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine or with
both.
Differences between Criminal Misappropriation of Property (Section 403) and
Criminal breach of Trust(405).
(1) In the case of dishonest misappropriation of property the offender is
already in possession of the property in an innocent manner, which he
subsequently misappropriates, or converts for his own use,
But in criminal breach of trust, he has domain over property and
disposes it of in violation of direction of law prescribing the mode in which the
aid entrusted property is to be used.
(2) The offence of criminal misappropriation of the property can be committed
only with respect to movable property,
Whereas criminal breach of trust, can be committed with respect to
movable and immovable property.
(3) The punishment prescribed for criminal misappropriation is two years,
Whereas it is three years in case of criminal breach of trust. Thus,
criminal breach of trust is a more severe offence as compared to criminal
misappropriation of property.
 Receiving of Stolen Property
Write note on “Stolen Property”.
Section 410: Property, the possession whereof has been transferred by theft, or
by extortion or by robbery, and property which has been criminally
misappropriated or in respect of which criminal breach of trust has been
committed, is designated as “stolen property” whether the transfer has been
made, or the misappropriation or breach of trust has been committed, within
or without India. But, if such property subsequently comes into the possession
of a person legally entitled to the possession thereof, it then ceases to be stolen
property.
In order to prove that the property in question is a ‘Stolen property’, the
prosecution is required to establish that:
(1) The property is question was stolen property within the meaning of section,
410, IPC.
(2) It was dishonestly received or retained by the accused; and
(3) The accused had the knowledge or reason to believe that the property was
a ‘stolen property’.
As to the identity of the stolen property ,it has been held by the Supreme court
in In Re, Mahabir Rao’s case, that so long as the stolen property remains same
in substance. For instance, if a stolen golden ornaments is melt and converted
into a golden piece, it shall still remain a stolen property irrespective of change
in its form.
Where a person who receives property honestly not knowing that it is stolen
one, but subsequently comes to know that it is a stolen property but still retains
it, his criminal liability would be no less than that of a person who receives it
dishonestly.
There must be owner or heir of every stolen property. Thus a thing which
belongs to no one (Res Nullius) cannot be a subject-matter of stolen property.
It is further significant to note that acquittal of the thief does not necessarily
resulting the acquittal of person receiving or retaining that stolen property. For
instance, if a child below seven years commits theft of golden chain, he cannot
be convicted for the offence because of his being dolo incapex under section 82
of IPC but the person who receives that golden property, cannot escape from
conviction and punishment for the offence of receiving or retaining the stolen
property under Section 410/411, IPC.
Where a person receives or retains a property which he knows or has reason to
believe that it is a stolen property, still keeps it with him, it would be a
sufficient reason to believe that he has aided in hiding the said property from
being detected or apprehended and shall be liable under this section.
Section 411: Dishonestly receiving stolen property: Whoever dishonestly
receives or retains any stolen property, knowing or having reason to believe the
same to be stolen property, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine , or with
both.
Cheating
Quetion: Explain cheating. When does it become cheating by personation?
Section 415: Cheating: Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property, or
intentionally induces the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived, and which act or omission
Causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to “cheat”.
Explanation: a dishonest concealment of facts is a deception within the
meaning of this section.
illustrations:
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z,
and thus dishonestly induces Z to let him have on credit goods for which he
does not mean to pay. A cheats.
(b) A , by exhibiting to Z, a false sample of an article, intentionally deceives Z
into believing that the article corresponds with the sample , and thereby,
dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, intentionally deceives Z into a belief that A has performed A’s part of a
contract made with Z, which he has not performed, and thereby dishonestly
induces Z to pay money. A cheats.
Cheating may be defined as obtaining another’s property by deception with the
intention to permanently deprive that person of his property. Section 415 defines
‘cheating’ as, “whoever, by deceiving any person: (1) fraudulently or dishonestly
inducing a person so deceived to deliver any property or to consent that any person
shall retain the property; or (2) intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if he were not so deceived and
such act or omission causes or is likely to cause damage or harm to that person in
body, mind, reputation or property, is said to commit the offence of cheating.
The supreme Court elaborated the essential ingredients required to constitute the
offence of cheating. In Ram Jas v. State of Uttar Pradesh, 1974 as follows:
(1) The accused must have fraudulently or dishonestly induced a person by deceiving
him;
(2) (a) the person so deceived should be induced to deliver any property to a person
or to consent that any person shall retain the property; or
(b) The person so deceived should be intentionally induces to do or omit to do
anything which he would not do or omit, if he were not so deceived; and
( c) In cases referred to in 2(b) above, the act or omission should be one which causes
damage or harm to the person induced in body, mind, reputation of property.
Broadly speaking, the offence of cheating comprises two types of cases, namely,
cases in which transfer for property is not occasioned by deception and cases
in which such a transfer of property is involved.
Deception and cheating by false promise of marriage:
Duping young girls and inducing them to consent for sexual intercourse on a
false promise of marrying them has become a common form of deception in
recent them. Whether such deception amounts to cheating under Section 415,
IPC, or not is question which the courts are called upon to decide in such cases.
The act amounts to cheating if it is proved that the promise marry by the
accused for inducing the victim girl to have sexual intercourse with him was
false when it was made by him.
In Subhransu Sekhar Samantray v. State of Orissa,2002, the accused sexually
exploited the prosecutrix and in order to assure of marriage with her put
sindhur on her mang acknowledging her as his wife but promised to publicly
accept her after he gets a job but later he refused to accept her. He was
therefore, convicted under Section 415/417.
The act or omission must cause or likely to cause damage or harm.
The damage contemplated by this section refers to harm to a person’ body,
mind, reputation or property. Such damage should, however be direct, natural
and probable consequences of the dishonest inducement. The person deceived
must have acted under the influence of deceit and the damage so caused
should not be too remote.
Section 416: Cheating by personation: A person is said to “cheat by
personation”, if he cheats by pretending to be some other person, or by
knowingly substituting one person for another, or representing that he or any
other person is a person other than he or such other person really is.
Explanation – the offence is committed whether the individual personated is a
real or imaginary person.
Illustrations: (a) a cheats by pretending to be a certain rich banker of the same
name . A cheats by personation.
(b) A cheats by pretending to be B, a person who is deceased. A cheats by
personation.
This section penalises cheating by personation. Mere he is actually not, he is
said to personate. Personation may be by words, act or conduct and it may be
of a really existing person or may be of an imaginary or fictious person.
Ingredients: The essential ingredients of the offence of cheating by personation
are:
(1) The accused person pretends to be some other person who he in fact is not;
(2) Knowingly or intentionally substituting oneself for another person for the
purpose of cheating or deceiving.
The different types of personifications can be:
1. Personations as Bachelor for the purpose of marriage:
2. Enjoying another's privilege: In re Matmeswar Rao, 1957, the accused was
detected to be using a railway season ticket issued in the name of some
other person by pretending or personating that he was tht person, he was
convicted under Section 416, IPC for cheating by personation.
3. False representation at examination: In Sushil kumar Dutta v. State, 1965. A
personating himself as B at a University Examination with the admission
card written in B’s name and also wrote papers in B’s name, he was held
guilty of cheating by personation and also forgery.
4. Obtaining job by personation: In one of the cases, the accused who did not
belong to the category of scheduled caste appeared in the IAS examination
as a Scheduled Caste candidate, cleared it, ad got an appointment in the
reserve quota on the basis of false representation, he was held guilty of
cheating by personation.
5. False representation of caste for procuring marriage is also an offence of
cheating by personation.
Section 417: Punishment for cheating: whoever cheats shall be punished with
imprisonment of either description for a term which may extend to one year, or
with fine or with both.
This section seeks to punish simple cases of cheating. However, where cheating
involves delivery of property or destruction of any valuable security, then in
such cases the provision of section 420, IPC will be applicable.
Where the accused after taking dinner in a hotel, left it without making
payment of the bill and without leaving his name, address or phone number in
the hotel, he could be convicted for cheating under this section.
Section 419: Punishment for cheating by personation: Whoever cheats by
personation shall be punished with imprisonment of either description for a
term which may extend to three years or with fine, or with both.
This section prescribes punishment for the offence of cheating by personation
committed under Section 416 IPC.
Section 418: Cheating with knowledge that wrongful loss may ensue to person
whose interest offender is bound to protect: Whoever cheats with the
knowledge that he is likely thereby to cause wrongful loss to a person whose
interest in the transaction to which the cheating relates, he was bound, either
by law, or by a legal contract, to protect, shall be punished with imprisonment
of either description for a term which may extend to three years, or with fine, o
with both.
Section 420: Cheating and dishonestly inducing deliver of property: whoever
cheats and thereby dishonestly induces the person deceived to deliver any
property to any person, or to make alter or destroy the whole or any part of a
valuable security; or anything which is signed or sealed, and which is capable of
being converted into a valuable security, shall be punished with imprisonment of
either description for a term which may extend to seven years and shall also be liable
for fine.
Where the accused with the dishonest intention causes the complainant to deliver or
part with his property acting on former’s representation, the offence of cheating
under this section is complete.
Ingredients: the ingredients of the offence under Section 420, IPC may briefly be
stated as follows:
The accused dishonestly induces the victim:
(a) to deliver any property to any person; or
(b) to make or alter the whole or any part of a valuable security, or anything
which is signed or sealed and is capable of being converted into a valuable security.
The Supreme Court in Ishwarlal Girdharilal v. State, 1969, held that the word property
in section 420 is not limited to goods or articles which have money value or market
value, but it also extends to things which have no money value in the hand of person
cheated, but became a thing of great value in the hand of the person who may get
possession of it as a result of cheating.
An admission card to appear in a University examination is a property within
the meaning of Section 420, though it has not pecuniary value but it has a great
value to the candidate who seems to take part in the University Examination.
Similarly, a driving licence, a passport, an assessment order issued by the
Income tax department etc. are held to be property within the meaning of this
section.
Fraudulent Deeds and disposition of property
Section 421: Dishonest or fraudulent removal or concealment of property to
prevent distribution among creditors: Whoever dishonestly or fraudulently
removes , conceals or delivers to any person, or transfer or causes to be
transferred to any person, without adequate consideration, any property,
intending thereby to prevent, the distributing of that property according to law
among his creditors or the creditors of any other person, shall be punished with
imprisonment of either description for a term which may extend to two years
with or without fine.
This section and the three succeeding section deal with fraudulent deeds and
conveyance of property.
The section specially refers to frauds relating to insolvency. The offence consists in a
dishonest disposition of property with intent to deprive the creditor of his claim and
thus cause him wrongful loss. This is done by resorting to benami transactions which
is unlawful. The section applies to both movable as well as the immovable property.
Ingredients: the main ingredients the offence under Section 412 are as follows:
(1) The removal, concealment or delivery of the property by the accused or his
transfer or caused to be transferred to someone.
(2) That such transaction or transfer was without adequate consideration;
(3) Intention of the accused to prevent the distribution of that property according to
law among the creditors;
(4) The act of the accused was done dishonestly or fraudulently
Section 423: Dishonest or fraudulent execution of deed of transfer containing false
statement of consideration: whoever dishonestly or fraudulently signs, executes
of becomes a party to any deed or instrument which purports to transfer or
subjects to any charge a property, or any interest therein, and which
contains any false statement relating to the consideration such transfer or
charge, or relating to the person or persons for whose use or benefit it is really
intended to operate, shall be punished with imprisonment of either description
for a term which may extend to two years with or without fine.
This section provides punishment for dishonest execution of benami deeds or
conveyance thereof. Where the seller of an immovable property has shown
inflated consideration with the consent of the purchaser in order to defeat the
claim of the pre-emptor, the purchaser will be guilty of the offence under the
section.
Section 424: Dishonest or fraudulent removal or concealment of property:
Whoever dishonestly or fraudulently conceals or removes any property of
himself or any other person, or dishonestly or fraudulently assists in the
concealment or removal thereof, or dishonestly release any demand or claim to
which he entitled shall be punished with imprisonment of either description for
a term with fine or with both.
removal thereof, or dishonestly release any demand or claim to which he entitled
shall be punished with imprisonment of either description for a term with fine or
with both.
This section provides punishment for cases involving dishonest or fraudulent removal
or transfer of immovable property to evade payment of debts of creditors which are
not within the purview o section 421 and 422 of IPC. For instance, where a
judgment-debtor whose standing crop was attached, harvested them while
attachment was in force, he was held guilty of offence under this section.
Broadly speaking the section consists of three situations when a person may be held
liable under this section, namely;
(1) dishonest, or fraudulent assistance in the concealment or removal of property,
whether one’s own or of some other person; or
(2) Dishonest release of any demand or claim to which one is entitled.
(3) Where a hospital was being run by two doctors in a joint partnership and one of
them complained against another that the latter was obstructed him exercising
joint possession and use of the equipment's, it was held that the section was not
attracted as no concealment or removal of any equipment was alleged in the
instant case.
 Unit V
Mischief-criminal trespass –offences relating to documents and property marks-
Offences relating to marriage(Section 493-498A)-Defamation (section 499-
502) Criminal intimidation and annoyance and attempt to commit such
offences(Section 506 to 511).
Question: Explain the ingredients of ‘Mischief”
Section 425: Mischief: Whoever, with intent to cause, or knowing that he is
likely to cause, wrongful loss or damage to the public or to any person likely to
cause, wrongful loss or damage to the public or to any person, causes the
destruction of any property, or any such, change in any property or in the
situation thereof as destroys or diminishes its value or utility, or affects it
injuriously, commits “mischief”.
Explanation 1: It is not essential to the offence of mischief that the offender
should intend to cause loss or damage to the owner of the property injured or
destroyed. It is sufficient if he intends to cause, or knows that he is likely to
cause, wrongful loss or damage to any person by injuring any property,
whether it belongs to that person or not .
Explanation 2: Mischief may be committed by an act affecting property belonging to
the person who commits the act, or to that person and others jointly.
Illustrations: (a) A voluntarily burns a valuable security belonging to Z. A has
committed mischief.
(b) A introduces water into an ice-home belonging to Z and thus causes the ice to
melt, intending wrongful loss to Z, A has committed mischief.
(c) A, voluntarily throws into a river a ring belonging to Z, with the intention of
thereby causing wrongful loss to Z, A has committed mischief.
(d) A, having joint property with Z in a horse, shoots the horse, intending thereby to
cause wrongful loss to Z, a has committed mischief.
(e) A, having insured a ship, voluntarily causes the same to be cast away, with the
intention of causing damage to the underwriters. A has committed mischief.
(f) A causes cattle to enter upon the field belonging to Z, intending to cause and
knowing that he is likely to causes damage to Z’s crop. A has committed mischief.
Anything done by a person with the intention to cause wrongful loss or
damage to the public or any person or done having knowledge that it is likely
to cause wrongful loss or damage to the public or to any person, or causing
any such change in any property which either destroys it or diminishes its
value or utility or affects it injuriously, is called ‘ mischief’.
The section applies only to those damages caused by wilful acts or committed
with knowledge of causing damage or destruction or diminution of value or
utility. It does not apply to acts which are negligent or accidental.
The Section applied to both, movable as well as the immovable property.
Essential ingredients: the essential ingredients of the offence of mischief may
briefly be stated as follows:
(1) Mensrea, which consists in an intention or knowledge of likelihood to cause
wrongful loss or damage to the public or any person.
(2) Causing destruction of some property or change in it; and
(3) Such change must cause destruction or diminution in the value of its utility
or affect it injuriously.
An act done in bonafide exercise of a right, cannot amount to an offence of
mischief within the ambit of section 425. Thus where the accused pulled
down a wall constructed by the complainant, which was obstructing the
pathway of the accused to his kotta and which he was using for the last 22
years, it was held no offence under Section 425, IPC.
Destruction damage or change in property: Section 425 applies when the
accused has caused complete or partial destruction or damage to the
property of public or a particular person or has brought about a change in the
property of public or a particular person or thus disconnecting the water
supply to the remises of the tenant by the landlord constitutes a destructive
change to the premises of the tenant by the landlord constitutes a
destructive change in the flat which diminished its value or utility and
therefore, it constitute an offence of mischief under section 425,IPC.
The property for the purpose of this section must be corporeal which may be
movable or immovable, but it is not applicable to right of easement.
 A person can be convicted for the offence of mischief if he intentionally sends his
cattle to graze on the land belonging to the complainant as it causes wrongful loss
to the complainant.
In Nagendra Nath Mondal v. State, 1972, the accused trespasses into the premises of
a school, destroyed its records and books and threatened its staff and students
with serious consequences and threatened to put a bomb there to scare them. It
was held that the intention of the accused was to see that it is closed down and
thus cause wrongful loss or damage. He was therefore, held guilty of offence under
section 425 as it ws also likely to disturb public order.
Change in the form of property: In Chandra v. R, 1905, the complainant had fishery
rights in a particular stretch of a river. The accused by diverting the water-flow of
that river, converted the bed of the river into a dry land with a shallow covering of
water upon it, thereby destroying a large quantity of fishes by bringing abut a
change in the property. He was held guilty of mischief.
In Sukha Singh v. Emperor, 1905, the accused on receiving delivery of a registered
parcel from the postman was asked to signing on the acknowledgment receipt in
token of parcel having been received by him, but instead of returning the same
duly signed, he tore off the acknowledgment slip and threw it
on the ground. He was held guilty of mischief under Section 425 of IPC.
The offence under this section is non-cognizable, bailable and compoundable
when loss or damage caused is to a private person. It is traible by any
Magistrate.
Section 426: Punishment for Mischief: whoever commits mischief shall be
punished with imprisonment of either description for a term which may
extend to three months or with fine or with both.
It is evident from the quantum of punishment provided under the section that
mischief is relatively a simple offence. The imprisonment prescribed for the
offence cannot be of a rigorous description.
 Criminal Trespass
Question: What is criminal trespass? When does it becomes house trespass,
and house breaking?
It must be stated that ordinarily trespass is a civil wrong for which the
defendant can sue for damages. But if trespass is committed with a criminal
intention, it is treated as an offence punishable under IPC.
Section 441 to 460 of the Penal Code deal with various kinds of criminal
trespass which may broadly be classified as follows:
1. Criminal trespass(Section 441 and 447)
2. House trespass (Section 442 and 448 to 452)
3. Lurking House trespass(Section 443, 444, and 455 to 460);
4. House braking (Section 445, 453 to 455) and
5. House braking by night(Sections 446 and 456 t 460)
Section 441 Criminal trespass: Whoever enters into or upon property in the
possession of another with intent to commit an offence or to intimidate,
insult or annoy any person in possession of such property, or having lawfully
entered into or upon such property, unlawfully remains there with intent
thereby to intimidate, insult or annoy an such person, or with intent to
commit an offence, is said to commit “criminal trespass”.
The offence of criminal trespass as defined in this section relates to possession
and not the ownership, therefore, the question of title or ownership cannot
be raised on a plea of trespass.
Essential ingredients: In order to constitute an offence of criminal trespass
under section 441, the prosecution is required to prove the following:
(1) That the accused entered into or upon property in possession of another;
(2) That having entered lawfully, he unlawfully remained in or upon such
property;
(3) That such entry or unlawful remaining was with the intent:
(a) to commit an offence; or
(b) to intimidate, insult or annoy the person in possession of the property.
Owner can be guilty of criminal trespass into his own land: there may be a
situation where the owner may be guilty of criminal trespass into own upon
his own land and convicted under section 441, IPC. Thus In Kishore Jain v.
State of Delhi, 2002, petitioner's premises were sealed by the Municipal
Corporation, Delhi in exercise of power conferred to it by one of its sections,
but the petitioner made unauthorised construction on the premises after
breaking open the seal without seeking corporations permission. He was
held breaking open the seal without seeking corporation permission. He
was held breaking open the seal without seeking corporation permission.
In Savan Transport ltd v. Kamaraju Bioi, 1991, the accused who was a Branch
Manager of a company took company's flat on rent but he did not vacate it
even after his transfer to some other place despite several notices to the
company. Therefore, the company instituted criminal proceedings for
criminal trespass against him. He as held guilty of the offence under Section
441 of IPC.
In Olga Tellis v. Bombay Municipal Corporation, 1985, certain pavement
dwellers faced the problem of demolition of huts by the Bombay Municipal
Corporation, which they had illegally constructed on public footpaths and
pavements. The Supreme Court held that they are not guilty of committing
the criminal trespass as they lacked the requisite intention. The court
observed that the act of pavement dwellers was not voluntary but it was a
express of their helpless and struggle for survival.
Intention to commit offence is essential requisite: the offence of criminal
trespass cannot be established in the absence of proof of the requisite
criminal intention on the part of the accused. It is not the nature of the act
but the intention of the offender which forms the basis of criminal trespass.
Thus if a person with intent to save his family and property from imminent
destruction commits civil trespass on his neighbour’s land and cuts a portion
of a dam belonging to his neighbour, he will not be guilty of criminal trespass.
House trespass
Questions: 1. What is criminal trespass? When does it becomes house
trespass, and house breaking?
2. Write a short notes on House Trespass
Section 442. House trespass: Whoever commits criminal trespass by entering
into or remaining in an building, tent or vessel used as a human dwelling or
any building used as a place for worship, or as a place of the custody of
property, is said to commit “house-trespass”.
Explanation: the introduction of any part of the criminal trespasser’s body is
entering sufficient to constitute house-trespass.
This Section defines ’House trespass’ as an offence which in fact is a specific
form of criminal trespass. The punishment for the offence of house trespass
is stipulated in section 448 of IPC. House trespass is an aggravated from of
the offence of criminal trespass . The object of the section is to punish a
person who interferes with the right of privacy of persons living in a building,
tent or vessel which are places of human dwelling or any place used for
worshipping or for the custody of property.
The only difference between house-trespass as defined in section 442 of IPC
and criminal trespass as defined in Section 441 of IPC is that criminal trespass
is committed when a person enters into or upon any property whereas house
trespass can be committed with respect to a building, tent, vessel etc, used
as human dwelling or a place of worship or for the custody of property.
It therefore follows that for both the offences, entry of the person committing
trespass should have been with intent to commit an offence or to intimidate or
insult or annoy any person.
Ordinarily, the term building in the context of Section 442 of IPC means a
structure which has walls and a covered roof and is used as a living place.
The roof of a house is held to be a part of building in the context of Section 442
of IPC and therefore, if a person makes an entry in a house by breaking open
the roof , he will be quality of the offence of house trespass under Section 442,
IPC.
Where a police officer in pursuance of his routine duty to keep surveillance on
the notorious criminals during night entered the complainant’s house to make
sure whether he was in his house or not as per the order passed against him, it
was held tht the police officer would not be guilty of criminal trespass as the
annoyance caused thereby to the complainant was justified.
Section 443: Lurking house-trespass: Whoever commits house trespass having
taken precautions to conceal such house-trespass from some person who has
a right to exclude or eject the trespasser from the building, tent or vessel
which is the subject of the trespass, is said to commit “lurking house-
trespass”.
That means tht the offender while committing the house-trespass make sure
that his entry into the house is concealed from the person who has right to
eject him or expel him,. It is thus an aggravated form of house trespass.
The law relating to criminal trespass under IPC recognises five aggravated forms
of this offence, namely;
(1) House trespass;
(2) Lurking house trespass;
(3) Lurking house trespass by night;
(4) House breaking, and
(5) House breaking by night.
(6) In order to convict the accused for an offence under Section 443 of IPC, it must
be proved that he had initiated certain active steeps to conceal his presence
while trespassing into the house.
Section 444: Lurking house-trespass by night: Whoever commits lurking house-
trespass after sunset and before sunrise, is said to commit “lurking house-
trespass by night”.
Section 445: House-breaking: A person is said to commit “house-breaking” , who
commits house-trespass, if e effects his entrance into the house or any part of
it in any of the six ways hereinafter described; or if, being in the house or any
part of it for the purpose of committing an offence, or, having committed an
offence therein, he quits the house or any part of it in any of such six ways, tht
is to say:
First: if he enters or quits through any passage by himself , or by any abettor of the
house-trespass, in order to the committing of the house trespass.
Secondly: If he enters or quits through any passage not intended by any
person, other than himself or an abettor of the offence, for human entrance,
or through any passage to which he has obtained access by scaling or
climbing over any wall or building.
Thirdly: If he enters or quits through any passage which he or any abettor of
the house-trespass has opened, in order to the committing of the house-
trespass by any means by which that passage was not intended by the
occupier of the house to be opened.
Fourthly: If he enters or quits by opening any lock in order to the committing
of the house-trespass, or in order to the quitting of the house after a house-
trespass.
Fifthly: if he effects his entrance or departure by using criminal force or
committing an assault or by threatening any person with assault.
Sixthly: If he enters or quits by any passage which he knows to have been
fastened against such entrance or departure, and to have been unfastened by
Himself or by an abettor of the house-trespass.
Explanation: Any out-house or building occupied with a house, and between
which and such house there is an immediate internal communication, is part
of the house within the meaning of this section.
Illustrations: (a) A commits house-trespass by making a hole through the wall
of Z’s house, and putting his hand through the aperture. This is house-
breaking.
(b) A commits house-trespass by creeping into a ship at a port-hole between
decks. This is a house-breaking.
(c ) a finds the key of Z’s house door, which Z had lost, and commits house-
trespass by entering Z’s house, having opened the door with that key. This is
house-breaking.
Section 446: House-breaking by night: Whoever commits house-breaking after
sunset and before sunrise, is said to commit “house-breaking by night”.
Section 447: Punishment for criminal-trespass: Whoever commits criminal
trespass shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine which may extend to
five hundred rupees, or with both.
Section 448: Punishment for house-trespass: Whoever commits house-
trespass shall be punished with imprisonment of either description for a term
which a may extend to one year, or with fine which may extend to one
thousand rupees or with both.
Section 449: House-trespass in order to commit offence punishable with
death: Whoever commits house-trespass in order to the committing of any
offence punishable with death, shall be punished with “imprisonment for life,
or with rigorous imprisonment for a term not exceeding ten years and shall
also be liable to fine.
 Offences relating to documents and to property marks
Questions: (1) Define forgery. When a person is said to have made a false
document?
(2) Explain the essential elements of the offence of forgery with relevant
illustrations.

This chapter consists of three parts. the first part, namely , Section 463 to 477-
A of the Chapter deals with forgery of documents and accounts whereas the
second part comprising sections 479.
Section 463: forgery: Whoever makes any false document or false electronic
record or part of a document or electronic record, with intent in cause
damages or injury, to the public or to any person, or to support any claim or
title, or to cause any person to apart with property, or to enter into any
express or implied contract, or with intent to commit fraud or that fraud may
be committed, commits forgery.
Section 463 to 477-Aofthe Indian Penal Code describe five different kinds of
offences relating to forgery of documents. They are as follows:
1. forgery- (definition, Section 463 and punishment under Section 465)
2. Making a false document(section 464)
3. Forged documents(section 470)
4. Falsification of accounts(section 477-A); and
5. Other offences relating to documents (Section 472 to 477-A).
The origin of the offences of forgery may be traced back to the
invention of writing. Forgery may be defined as making of a false document
with the criminal intention to cause damage to any person. The forgery Act
1913 was, however, repealed by the Forgery and Counterfeiting Act, 1981
and Section 1 of this Act says that a person is held guilty of “forgery” when
he makes a false document with the intent to use or induce somebody to
accept it as a genuine one.
Like the English law, Section 463 of IPC also defines forgery as making a false
record or electronic record with the criminal intention to sue it as a genuine
record or electronic record. Merely making a false document or electronic
document is not punishable unless it is used as if it were a genuine
document when it will amount to a forgery.
The main ingredients of the offence of forgery as defined in this section are as
follows:
1. Making a false document or electronic record or part of it.
2. Such making of document or electronic record should be with intent:
(a) to cause damage or injury to (i) public; or (ii) any person; or
(b) to support any claim or title; or
(c ) to cause any person to apart with property; or
(d) To cause any person to enter into express or implied contract or
(e) To commit fraud or that a fraud may be committed .
Thus it would appear that forgery is a means to deceive a person. As In case of
offence of cheating, the element of false representation is also present in the
offence of forgery, but cheating is mainly oral whereas forgery is essentially
in a written form.
Where a person on being authored by another person to sign the signature of
that another person, does so, he commits no forgery. Thus, when a son on
being authorised by is father, makes his father’s signature on a document,
he commits no forgery.
In Vasappa v. State, 1973, it was held that in order to constitute an offence of
forgery merely making a false document is not enough but the intention to
cause damage or harm to a public servant or any other person should also
be present.
Where in a proceeding in a Court of Justice, the accused manages to insert a
document on the record and makes an interpolation in the list of
documents, the accused would be guilty of committing a fraud on the
Court, either to save himself from being prosecuted or to cause damage to
the opposite party. It is immaterial whether he succeeds in deceiving of
defrauding or not or had he succeeded, it would not have adversely affected
him or caused no damages to the other party as he had intended or
contemplated.
As stated earlier, forgery implies making of a false document. What constitutes
a false document is the next section 464 of IPC.
Section 464: Making of false document: A person is said to make a false
document or false electronic record:
(a) Makes, signs, seals or executes a document or part of a document;
(b) Makes or transmits any electronic record or part of any electronic record;
(c) Affixes any electronic signature on any electronic record;
(d) Makes any mark denoting the execution of a document or the authenticity
of the electronic signature.
With the intention of causing it to be believed that such document or part of
document, electronic record or electronic signature was made, signed,
sealed, executed, transmitted or affixed by or by the authority of a person by
whom or by whose authority he knows that it was not made, signed sealed,
executed or affixed; or
Secondly: Who without lawful authority, dishonestly or fraudulently by
cancellation or other wise, alters a document or an electronic record in any
material part thereof, after it has been made, executed or affixed with
electronic signature either himself or by ay other person, be living or dead
at the time of such alteration; or
Thirdly : Who dishonestly or fraudulently cause ay person to sign, seal,
executes or alter a document or an electronic record or to affix his
electronic signature or any electronic record knowing that such person by
reason of unsoundness of mind or intoxication cannot, or that by reason of
deception practiced upon him, he does not now the contents of the
document or electronic record or the nature of the alteration.
Illustrations: (a) A has a letter of credit upon B for Rs 10,000 written by Z, A, in
order to defraud B, adds a cipher to the 10, 000 and makes the sum
1, 00,000 intending that it may be believed by B tht the purchase money, A
has committed forgery.
(b) Z’s will contains these words: “I direct that all my remaining property be
equally divided between A, B, and C”. A dishonestly scratches out B’s name,
intending that it may be believed that the whose was left to himself and C,
A has committed forgery.
Explanation 1: A man’s signature of his own name may amount to forgery:
A signs his own name to a bill of exchange, intending that it may be believed
that the bill was drawn by another person of the same name. A has
committed forgery.
Explanation 2: the making of a false document in the name of fictitious person,
intending it be believed that the document was made by real person, or in
the name of a deceased person, intending it to be believed that the
document was made by the person in his life-time may amount to forgery;
Illustration: A draws a bill of exchange upon a fictitious person, and
fraudulently accepts the bill in the name of such fictitious person with intent to
negotiate it. A commits forgery.
Explanation 3: For the purpose of this section, the expression affixing electronic
signature shall have the meaning assigned to it in clause (d) of Sub-section (1) of
section 2 of the Information Technology Act, 2000.
According to this section, a person who makes a false document or false electronic
record commits forgery which the accused intends, should appear to be genuine
possessing some legal validity.
The term document as defined in ‘section 29, IPC denotes ‘any matter expressed or
described upon any substance by means of letter, figures or marks, in a manner
capable of conveying an idea to the mind of a person who is able to understand
them. Similarly, the term electronic data inserted as defined in Section 29-A of
the IPC by the Information technology Act 2000 means “data record of data
generated image, or sound stored, received or sent in an electronic form or
microfilm or computer generated microfiche”.
The section also describes the manner as to how a false document or false electronic
record can be made. It may be prepared in the following ways:
(1) By making, sealing, signing or executing a document or a part thereof or
making or transmitting any electronic record or a part thereof, or by affixing
any digital signature on any electronic record; or
(2) By alteration of a document or an electronic record; or
(3) By causing a person who is innocent of the contents or nature of the
alteration made in a document or an electronic record to sign seal or
execute it.
Examples of forgery are:
1. forging or altering date of birth for deriving certain consequential benefits
there from; or
2. Making false caste certificate to seek benefit of reservation in jobs or
admission in professional institutes and colleges under reserved categories.
3. Making a false or forged document with a view to support a legal claim
would be punished under Section 464.
Where several persons are involved in making a forged document, all of the are
liable to be punished for forgery under Section 464, IPC.
The Supreme Court held In T.N. Rugmani v. C. Achutta menon, 1991, held that
making an application in another’s name without any intention to defraud or
causing harm to anyone does not amount to an offence of forgery. The
Supreme court held tht the handwriting expert’s opinion forms an important
part of evidence in forgery cases.
Section 465: Punishment for forgery: Whoever commits forgery shall be
punished with imprisonment of either description for a term which may
extend to two years.
Currency notes and Bank Notes
Section 489-A to 489-E, contains five offences relating to currency notes and bank
notes. These were inserted in IPC in order to provide more adequately for the
protection of currency-notes and bank-notes from forgery.
The five offences specified in Section 489-A to 489E , the Indian Penal Code
relating to currency notes and bank notes may briefly be summarised as
Follows:
(1) Counterfeiting currency notes and bank notes.
(2) Possession of forged or counterfeit currency notes or bank notes with
intention to pass them as genuine.
(2) Making or possessing instruments or materials for forging or counterfeiting
currency notes and banks notes.
(3) Making or using documents resembling currency notes or bank notes or
refusing to disclose to a police officer, the name or address of the person by
whom such forged or counterfeit notes were printed or other wise made.
Section 489-A: counterfeiting currency notes or bank notes: Whoever
counterfeits, or knowingly performs any part of the process of
counterfeiting, any currency notes or bank-note, shall be punished with
imprisonment for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine
Explanation: For the purpose of this section and of other sections, the
The expression “bank-note” means a promissory note or engagement for the
payment of money to bearer on demand issued by any person carrying on
the business of banking in any part of the world, or issued by or under the
authority of any State or Sovereign world, or issued by or under the authority
of any State or Sovereign power, and intended to be sued as equivalent to, or
as a substitute for money.
Offences relating to Marriage
Questions: 1. Explain the offences relating to marriage.
2. Discuss the offence of adultery with recent developments
3. Write short not Adultery
4. Write a short notes on “Bigamy’.
5. Write note on cruelty by husband and his relatives.
Introduction: the purpose of including this chapter in the Indian Penal Code is
to prevent deceitful practices which adversely affect the marriage and
Marriage relations of the spouses. Particularly women who fall a victim to an
offence relating to marriage are most affected. The offence enumerated in
this chapter comprising sections 493 to 498, IPC are intended to prevent
infidelity within the institution of marriage. The main offences under this
chapter are as follows:
(1) Invalid marriage(Sections 493 and 496);
(2) Bigamy (Section 494 and 495);
(3) Adultery (section 487); and
(4) Criminal element(Section 498).
Section 493: Cohabitation caused by a man deceitfully inducing a belief of
lawful marriage: every man who by deceit causes any woman who is not
lawfully married to him to believe that she is lawfully married to him and to
cohabit or have sexual intercourse with him in that belief, shall be punished
with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Ingredients : The main ingredients of an offence under Section 493 are:
(1) The accused (man) must have practised deception;
(2) Such deception was intended to induce a woman to believe that she was
lawfully married to him; and
(3) There was sexual intercourse as result of deception.
Where there is deception on the apart of the man to induce a woman to have
sexual intercourse with her after making her to believe that he was her
husband, though in fact it was not so, but ultimately sexual intercourse does
not take place, then in such a case, the provisions of Section 493, IPC will not
be attracted.
In one of the cases it was held that where the woman knows that the person to
whom she is giving consent to have sexual intercourse with her, is , infact not
her husband, she would not be entitled to launch prosecution against that
person under this section.
The High Court of Orissa, in Sudhanshu Shekhar Samantray v. State, 2002, held
Held that the statement of the prosecutrix that she had resisted to having sexual
intercourse with the accused but when he put vermilion on the mang thus
declaring her as his wife with the assurance to accept her publicly after securing a
job, she submitted herself to cohabitation, it would be sufficient to constitute an
offence under section 493 because the accused deceitfully induced the woman to
believe that it was a lawful marriage.
Section 198(1) of the Code of Criminal Procedure, 1973, specifically provides that no
court shall take cognizance of an offence punishable under this chapter of IPC
except upon a complaint made by the person who is aggrieved by the offence.
The offence under this section is non-congnizable , non-bailable and non-
compoundable, and is triable by the Magistrate of first class.
Question: Write a short notes on “Bigamy’.
4. Section 494: Marrying again during lifetime of husband or wife(Bigamy): Whoever
having a husband or wife living, marries in any case in which such marriage is void
by reason of its taking place during the life of such husband or wife, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
Exception – this section does not extend to ay person whose marriage with such
husband or wife has been declared void by a court of competent
jurisdiction, nor to any to any person who contracts a marriage during the
life of a former husband or wife, if such husband or wife, at the time of the
subsequent marriage , shall have been continually absent from such person
for the space of seven years, and shall not have been heard of by such
person as being alive within that time provided the person contracting such
subsequent marriage shall, before such marriage takes place, inform the
person with whom such marriage is contracted of the real state of facts so
far as the same are within his or her knowledge.
In order to constitute an offence of bigamy under this section it must be proved
that the first marriage was subsisting at the time of the second marriage and
it was validly contracted marriage and also the first wife/husband was living
when the second marriage was contracted.
This section itself provides two exceptions when contracting of second marriage
Will not be an offence, namely:
(1) When the first marriage has been declared void by the Court of competent
jurisdiction; and
(2) When the former wife/husband has been continually absent for over seven
years ad not heard of as being alive, and this fact is duly disclosed to the
person with whom the second marriage is being contracted.
The provisions of this section are not attracted where the second marriage
(despite the first marriage being valid and in subsistence with the spouse
living) is not a valid marriage. It is only when second marriage is also legally
valid that the person may be charged for the offence of bigamy under this
section.
Scope of the Section: The provision of this section relating to bigamy that is
marrying again during the lifetime of husband or wife, as the case may be, do
not apply to Mohammedan , males who are legally allowed to have more than
one wife, but it does apply to Mohammedan females and to Hindus, Parsis
and Christians, whether male or female.
Ingredients: the main ingredients of he offence under Section 494 are:
(1) Existence of the first wife or husband at the time of second marriage; and
(2) The first marriage should have been validly contracted and should be in
subsistence.
A divorce dissolves a valid marriage and therefore, the parties are free to
remarry after obtaining a valid decree of divorce.
In the case of Santosh Kumar v. Surjit Singh, 1990, the lower Court without
granting a divorce passed an order relieving the physically weak wife from
the burden of sex demand of her husband and also permitted him at the
request of the wife, to have another wife. The High Court held that the
decision of the lower Court being wrong , was labile to be set aside.
In Urmilla V. State, 1994, the marriage of the accused was solemnized according
to Arya samaj rituals under which only three and half rounds of sacred fire
are deemed enough to complete the marriage formality instead of
traditional saptapadi under the Hindu Marriage. The Supreme Court held
That the marriage was not complete and therefore, the accused could not be
convicted for the offence of bigamy under Section 494, IPC.
to wind up there are two Exceptions to Section 494: There are two exception
stated I the text of section 494 itself when second marriage would not
amount to bigamy namely:
(i) When the first marriage has been declared void by a competent court having
jurisdiction; and (ii) when one of the spouse to the marriage has not been
hers of continually for a period of more than seven years, as the law
presumes him to be dead.
Where a priest or pundit has the knowledge that the marriage which he is going
to solemnise is void because one of the spouse is entering the second
marriage though his/her wife or husband, as the case may be, is alive, he
would be guilty of abetment of that offence of bigamy and will be
punishable.
In one of the cases, the High Court of Andhra Pradesh held that in order to
to secure conviction under Section marriage validity has to be proved by the
complainant beyond doubt, it will be no excuse for the accused that he
converted himself to a religion which permits polygamy.
Briefly stated, the law relating to bigamy as contained in Section 494IPC,
provides tht when parties to a marriage get married under a particular
personal law, that marriage continues to be governed by the personal law
under which they got married, irrespective of the fact that either of the
spouses have converted to another religion. Therefore, spouses cannot and
should not be allowed to escape liability under section 494, IPC, by resorting
to conversion to Islam or nay other religion.
the next offence relating to marriages are:
Section 495: Same offence with concealment of former marriage from person
with whom subsequent marriage is contracted: Whoever commits the
offence defined in the last preceding section having concealed from the
person with whom the subsequent marriage is contracted, the fact of the
former marriage, shall be punished with imprisonment of either description
For a term which may extend to ten years, and shall also be liable to fine.
This section describes an aggravated form of the offence defined in
Section 494 for which an enhanced punishment has been prescribed. The
provision of this section applies to cases in which the person conceals the
fact of his former marriage from the spouse with whom he is going to
contract subsequent marriage.
Ingredients: The main ingredients of the offence under section 495 are:
(1) The accused must be already married;
(2) That his first marriage must be legally valid;
(3) The spouse whom he married is alive and has not been divorced;
(4) The accused has contracted second marriage; and
(5) He has with fraudulent intention concealed the fact of his first marriage and
spouse being alive with the person with whom he/she is contracting the
second marriage.
The next offence relating to marriage is:
Section 496: Marriage ceremony fraudulently gone through without lawful
marriage: whoever, dishonestly or with a fraudulent intention, goes through
the ceremony of being married, knowing that he is not thereby lawfully
married, shall be punished with imprisonment of either description for a term
which may extend to seven years., and shall also be labile to fine.
This offence can be committed both men and woman and also the
offence under this section requires no deception, cohabitation or sexual
intercourse. It involves dishonest and fraudulent abuse of marriage
ceremony.
Questions: 1. Discuss the offence of adultery with recent developments
2. Write short not Adultery.
Section 497: Adultery: Whoever has sexual intercourse with a person who is and
whom he knows or has reason to believe to be wife of another man, without
the consent or connivance of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of the offence of adultery, and
And shall be punished with imprisonment of either description for a tem which
may extend to five years, or with fine or with both. In such case the wife
shall not be punishable as an abettor.
According to the definition of the offence of adultery as given in this section, it
is an offence committed by a third person against a husband with his wife. It
is not necessary that the adulterer should know whose wife the woman is,
provided he knew that she was a married woman.
Ingredients: the essential ingredients of the offence of adultery are:
(1) Sexual intercourse by a man with a woman whom he knows and has reason
to believe to be wife of another man;
(2) Such sexual intercourse must be without the consent or connivance of the
husband; and
(3) Such sexual intercourse shall not amount an offence of rape.
(4) Though proof of sexual intercourse is an essential element of the offence but
direct evidence is seldom available and in most cases it has to be inferred
From totality of circumstances. If the victim is a widow , or an unmarried woman
or a married woman whose husband consents or connives to the sexual
intercourse, it will not be an offence of adultery and therefore, section 497,
IPC will not be attracted.
It is to be notes that the aggrieved party in the offence of adultery is the husband
whose wife has consented to have sexual intercourse with some other person
than her own husband. Section 198(1) of the Code of Criminal Procedure,
1908, specifically provides that no person other than the husband of the
woman shall be deemed to be aggrieved by an offence of adultery under
Section 497 or Section 498 of IPC, provided that in the absence of the
husband, some person who had care of the woman on behalf of the aggrieved
husband with leave of the court, make a complaint against the accused. But
the consenting woman ( wife of the aggrieved husband) cannot be made a co-
accused in the case.
The offence of adultery not being a continuing offence, continuous indulgence
adulterous intercourse would be liable to a second conviction for the fresh
act.
Thus every fresh act of adultery would entail fresh conviction of the accused.
It has been expressly provided in Section 497 tht the woman who is a party
to the offence of adultery will not be prosecuted as an abettor or a co-
accused because the law considers her as a victim and not as an author of
the crime.
In adultery the wife is treated as a property of her husband and provide new
dimension adding to it “by making not only the trespasser but the property
also liable to punishment.
Punishment According to IPC: shall be punished with imprisonment of either
description for a term which may extend to five years, or with fine, or with
both. In such case the wife shall not be punishable as an abettor.
Constitutional validity of Section 497, IPC: A historical review of the law relating
to adultery in India would reveal tht when Lord Macaulay prepared the first
draft if IPC in 1837, adultery was very must recognised as a crime in England
and France, yet he chose to keep adultery out of his draft because of the
polygamy then prevalent among Hindus and Muslims in Indian.
It is rather surprising that this British legacy remained till very recently even after
the constitutionality of the discriminatory provision of Section 497 on
adultery was challenged successively before the supreme Court by both sides
of the gender.
Recent Developments in the offence Adultery:
Because of this problematic interpretation, the Supreme Court in December
2017 decided to accept the public interest litigation in which it has been
prayed that the Court strikes down or completely does away with Section 497
of the Indian Penal Code entirely.
It has been argued that the section violates two articles of the Constitution of
India- Article 14 and Article 15.
Article 14 reads as follows: "The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.”
Article 15 reads as follows: "The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them."
On accepting this petition, the Court felt that laws are supposed to be gender
neutral. However, in this case, it merely makes the woman a victim and thus
"creates a dent on the individual independent identity of the woman.“
It further argues that if the petition is allowed, then "adulterous relations will
have more free play than now." As an alternative, it provides that the
recommendations of the Committee on Reforms of Criminal Justice System
(2003) be implemented. This committee recommended that the wording of
the section be changed to: "Whoever has sexual intercourse with the spouse of
any other person is guilty of adultery..." to tackle the problem of gender bias
which arises from the reading of the current section.
The land mark judgment was delivered by the Supreme Court in the case Joseph
Shine v. Union of India, 2018, wherein in October 2017, Joseph Shine, a non-
resident Keralite, filed public interest litigation under Article 32 of the
Constitution. The petition challenged the constitutionality of the offence of
adultery under Section 497 of the IPC read with Section 198(2) of the Cr.PC.
Section 497 IPC criminalised adultery by imposing culpability on a man who
engages in sexual intercourse with another person’s wife. Adultery was
punishable with a maximum imprisonment of five years. Women, including
consenting parties, were exempted from prosecution. Further, a married
woman could not bring forth a complaint under Section 497 IPC when her
husband engaged in sexual intercourse with an unmarried woman. This was in
view of Section 198(2) of Cr.PC which specified how a complainant can file
charges for offenses committed under Sections 497 and 498 IPC.
A five-judge Constitution bench of the Supreme Court on 27 September 2018
unanimously struck down Section 497 of the Indian Penal Code as being
violative of Articles 14. 15 & 21 of the Constitution.
While reading the judgment, Chief Justice Dipak Misra said, "adultery cannot be
a criminal offence under IPC," however it can be a ground for civil issues like
divorce.
The next offence relating to marriage is :
Section 498: Enticing or taking away or detaining with criminal intent a married
woman: Whoever takes or entices away any woman who is and whom he
knows or has reason to believe to be the wife of any other man, from that
man, or from any person having the care of her on behalf of that man, with
intent that she may have illicit intercourse with any person, or conceals or
detains with that intent any such woman, shall be punished with imprisonment
of either description for a term which may extent to two year.
Cruelty by Husband or Relatives of Husband
Question: Write note on cruelty by husband and his relatives.
Section 498-A: Husband or relatives of a husband of a woman subjecting her to
cruelty: Whoever, being the husband or the relative of the husband of a
Woman, subjects such woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also be liable to fine.
Explanation- For the purpose of this Section, “cruelty” means :
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health,
whether mental or physical of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any
property or valuable security or is on account of failure by her or any person
related to her to meet such demand.
This section has been added to the Indian Penal Code by the Criminal law
(Amendment) Act, 1983 with a view to punishing the husband and his
relatives who harass or torture the wife to coerce her or her relatives to
satisfy unlawful demands of dowry. The section therefore, deals with cruelty
against woman within the institution of marriage.
As a consequential change , Section 304-B was added to the IPC and Section
113-B was inserted in the Evidence Act, 1872, wherein it was provided that if
it was shown soon before the death of a woman, that she was subjected to
cruelty or harassment by her husband or his relatives for the demand of
dowry, then it will be presumed that the person or persons who harassed
the woman had caused her death. In other words, it will be presumed to be
a’ dowry death'. similarly, Section 174 of the Code of Criminal Procedure
1973 was also amended making inquest by executive Magistrate mandatory
in case of suicide or suspicious death of a woman within seven years of her
marriage.
Despite the Dowry Prohibition Act, 1961 and Amendment in it in 1987 providing
for a more stringent punishment, the menace of dowry demands and dowry
deaths persists unabated. In mist of the dowry cases the Courts are often
confronted with the problem of establishing the exact cause of death. The
problem becomes more acute when husband and wife are alone in the
house and wife’s unnatural death takes place. In the absence of conclusive
Evidence, the husband and /or his relatives invariably get acquitted on benefit of
doubt.
The insertion of new Section 498-A in IPC and consequential amendments in the
law of evidence and criminal procedure have solved the problem to a
considerable extent.
The Supreme Court in Sushil Kuman Sharma v. Union of India,2005, held that
the object of Section 488-A of the IPC, is to get to the root of dowry menace
and its unleashing will led to a legal terrorism. The provision of this section is
to be used as a shield and not as an assassin’s weapon. The legislature has
by inserting this provision in Penal Code and amendment in Evidence Act,
made penal law more stringent for dealing with and punishing offences
against married woman.
Cruelty is a continuing offence:
Since the law recognises cruelty as a continuing offence, every act of cruelty
would give rise to a fresh offence of cruelty for the purpose of Limitation
Under Section 468 , Cr.p.c.
Interrelationship between Section 498-A and 304-B of IPC
Section 498-A deals with cruelty to a woman by her husband or his relatives
which drives her to commit suicide or physical or mental injury whereas
section 304-B deals with dowry deaths. Thus , Section 498-A relates to
cruelty alone which section 304-B deals with actual death.
Section 304-B only deals with those dowry deaths which occur within seven
years of marriage but no such period d is stipulated in case of cruelty under
section 498-A.
A person charged under Section 304-B but acquitted, can be convicted under
Section 498-A of IPC.
In Shyamla v. State of Haryana, 1997, the prosecution could only prove the fact
that there was a dispute between parties regarding dowry and that the wife
was sent back to her parental him and she came back to her matrimonial
home after the ‘panchayat’ intervened about 10-15 days before she died.
There was no evidence that she was treated with cruelty or harassed with dowry
demand . The Supreme Court held that the accused was liable to be
convicted under Section 498-A on the basis of evidence of the father of the
deceased and her dying declaration, but Section 304-B would not apply in
this case.
Defamation
Questions: 1. Explain defamation? Explain its ingredients.
2. Explain Defamation state the exceptions.
Section 499: Defamation: Whoever, by words either spoken by words either
spoken or intended to be read, or by signs or by visible representations, making
or publishes any imputation concerning any person intending to harm, the
reputation of such person , is said, except in the cases hereinafter excepted, to
defame that person.
Explanation-1 It may amount to defamation to impute anything to a deceased
person, of the imputation would harm the reputation of that person if living, and
is intended to be hurtful to the feelings of his family .
Explanation 2- It may amount to defamation to make an imputation concerning a
company or an association or collection of person as such.
Explanation 3 -An imputation in the form of an alternative or expressed ironically,
may amount to defamation.
Explanation 4- No imputation is said to harm a person's reputation unless that
imputation directly or indirectly, in the estimation of others, lowers the moral
or intellectual character of that person, or lowers the credit of that person, or
causes it to be believed that the body of that person is in loathsome state, or
in a state generally considers as disgraceful.
Illustrations: 1. A says-”Z is an honest man, he never stole B’s watch”. Intending
to cause it to be believed that Z did steal B’s watch. This is defamation, unless
it falls within one of the exceptions.
2. A is asked who stole B’s watch. A points to Z, intending to cause it to be
believed that Z stole B’s watch. This is defamation unless it falls within one of
the exceptions.
A draws a picture of Z running away with B’s watch, intending it to be believed
3. that Z stole B’s watch. This is defamation, unless it falls within one of the
exceptions.
First Exception – Imputation of truth which public good requires to be made or
published- It is not defamation to impute anything which is true concerning any
person, if it be for the public good that the imputation should be made or
published. Whether or not it is for the public good is a question of fact.
Second Exception- Public conduct of public servants- It is not defamation to
express in good faith any opinion whatever respecting the conduct of a public
servant in the discharge of his public functions, or respecting his character
appears in that conduct and no further.
Third Exception- Conduct of any person touching any public question-It is not
defamation to express in good faith any opinion whatever respecting the conduct
of any person touching any public question, and respecting his character appear
in that conduct and no further.
Illustration: It is not defamation in A to express in good faith any opinion
whatever respecting Z’s conduct in petitioning Government on a public
Illustration: It is not defamation in A to express in good faith any opinion whatever respecting
Z’s conduct in petitioning Government on a public question, in signing a requisition for a
meeting on a public question, in presiding or attending at such voting or canvassing from
a particular candidate for any situation in the efficient discharge of the duties of which the
public is interested.
Fourth Exception: Publication of reports of proceedings of Courts- It is not defamation to
publish a substantially true report of the proceedings of a Court of Justice, or of the result
of any such proceedings.
Explanation - A justice of the Peace or other officer holding an enquiry in open Court
preliminary to a trial in A Court of Justice, is a Court within the meaning of the above
section,
Fifth Exception: Merits of case decided in Court or conduct of witnesses and others
concerned- It is not, defamation to express in good faith any opinion whatever respecting
the merits of any case, civil or criminal, which has been decided by a Court of Justice, or
respecting the conduct of any person as a party, witness or agent, in any such case, or
respecting the character of such person, as far as his character appears in that conduct,
and no further.
Illustrations: (a) A says-”I think Z’s evidence on that trial is so contradictory that he must
be stupid or dishonest”. A is within this exception if he says this in good faith, in as much as the
opinion which he expresses respects Z’s character as it appears to Z’s conduct as a witness.
(b) But if says-”I do not believe what Z asserted at that trial because I know him to be a man
without veracity.” a is not within this exception, in as must as the opinion which he
expresses of Z’s character, is an opinion not founded on Z’s conduct as a witness.
(c) Sixth exception- Merits of public performance: It is not defamation to express in good faith
any opinion respecting the merits of any performance which its author has submitted to
the judgement of the public or respecting the character of the author so far as his
character appears in such submixing to the judgment of the public.
Explanation – A performance may be submitted to the judgment of the public expressly or by
acts on the part of the author which imply such submission to the judgment of the public.
Illustrations: (a) a person who published a book, submits that book to the judgment of the
public.
(b) a person who makes a speech, in public, submits that speech to the judgment of the public.
(c) an actor or singer who spears on a public stage, submits his acting or singing
to the judgment of the public.
(d) A says of a book published by Z – “Z must be a weak man. Z’s book is
indecent; Z must be a man of impure mind”. A is within the exception, if he
says in good faith, in as must as the opinion which he express of Z in respects
Z’s character only so far as it appears in Z’s book, and no further.
(e) But if A says- “I am not surprised tht Z’s book is foolish and indecent, for he is
a weak man and a libertine”. A is not within the exception, inasmuch as the
opinion which he expresses of Z’s character is an opinion not founded on Z’s
book.
Seventh Exception- Censure passed in good faith by person having lawful
authority over another- It is not defamation in a person having over another any
authority, either conferred by a law or arising out of a lawful contract made with
that other, to pass in good faith any censure on the conduct of that other in
matters to which such lawful authority relates.
A Judge censuring in good faith the conduct of a witness or of any officer of the
Court; a head of the department censuring in good faith those who are
under his order: a parent censuring in good faith of a child in the presence
of other children: a school master, whose authority is derived from a parent,
censuring in good faith a pupil in the presence of other pupils: a master
censuring a servant in good faith for remissness in service: a banker
censuring in food faith the cashier of his bank for the conduct of such
cashier as such cashier – are within this exception.
Eighth exception: Accusation preferred in good faith to authorised person: It is
not defamation to prefer in good faith an accusation against any person to
any of those who have lawful authority over that Person with respect to the
subject-matter of accusation.
Illustrations: if A in good faith accused Z before a Magistrate: If A in good faith
complains of the conduct of Z, a servant, to Z’s master: if a in good faith
complains of the conduct of Z, a child, to Z’s father –A is within this
exception.
Ninth Exception- Imputation made in good faith by person for protection of his
or there’s interests-It is not defamation to make an imputation on the
character of another provided that the imputation be made in good faith for
the protection of the interest of the person making it, or of any other person,
or for the public good.
Illustrations: (a) A, a shopkeeper, says to B, who manages his business -”Sell
nothing to Z unless he pays you ready money, for I have no opinion of his
honesty”. A is within the exception, if he has made this imputation on Z in
good faith for the protection of his own interests.
(b) A , a Magistrate, in making a report to his own superior officer, castes an
imputation on the character of Z, Here, if the imputation is made on good
faith, and for the public good, A is within the exception.
Tenth Exception: Causation intended for good of person to whom conveyed or
for public good- It is not defamation to convey a caution, in good faith, to one
person against another, provided that such causation be intended for the good
of the person to whom it is conveyed, or of some person in whom that person is
Interested, or for the public good.
Defamation is both a crime as well as civil wrong. Under the English
law, spoken words do not amount to a crime, but under the Indian Penal
code, there is no distinction between spoken and written defamation, which
is called slander and libel respectively and both are actionable as a civil
wrong ad also as an offence under Section 499, IPC. However, before the
enactment of the Indian Penal code, defamation was merely a civil wrong.
The main ingredients of the offence of defamation are:
(1) Making or publishing any imputation concerning any person;
(2) Such imputation must have been made but:
(a) words, either spoken or written and intended to be read, or by signs; or
(b) visible representation;
(3) Such imputation must have been made with the intention of harming or
with knowledge or reason to believe tht it will harm the reputation for the
person concerned.
The term ‘reputation’ in general means opinion of others about a person, that is
estimation in which a person is held by others. A person’s own reputation
about himself in not his reputation.
Explanation 4 of section 499 further elaborates the concept of defamation as an
offence.
1. Makes or publishes any imputation: the word makes used in the definition
includes composing, dictating , writing or contributing in other way, to then
making of a defamatory imputation similarly, the word publishes denotes
bringing to the knowledge of a third person other than the person defaming
and the person so defamed. It means communicating the defamatory matter
to any other person than the person who is intended to be defamed.
2. Privileged communication: a privileged communication between husband
and wife or a lawyer and his client is not a publication and therefore it will
not incur criminal liability under sections 499/500 , IPC. Again ,
communication of an official entry in a confidential report of a superior
officer through the official channel will not amount to publication an therefore it
is not a defamation.
Advocates as a class are incapable of being defamed and therefore a general
statement that ‘all lawyers are liars’ is no defamation, but where referring to
a particular lawyer it is said that ”all lawyers are liars and you being a lawyer
are also liar”, it would certainly be capable of defamation under Section 499,
IPC.
Innuendo: there may be a statement which does not refer to the complainant
directly, but he alleges that in fact he was the real target of attack is when
referred to him carried a defamatory meaning. Thus, innuendo is a specific
kind of defamation.
In Sahib Singh v. State of UP, 1965, the editor of a newspaper ‘ Kaliyug’published
a article alleging that the public prosecutors and Assistant Public prosecutors
of UP, were openly taking bribe from both the parties. Aggrieved by this
publication, the public prosecutors and Assistant Public prosecutors of Algarh
filed a complainant against the accused editor with sanction of the State
Government. The accused took the plea that complaints against a group does
not constitute the “person” referred to in section 499. but rejecting the plea
the Court held that the editor should take care before publishing anything
which trends to harm the reputation of a person and avoid reckless
defamatory comments. The Court found that the article challenged was
without any justification and was published with an ulterior motive,
therefore, it was not excusable under explanation 3 of section 499, IPC and
the accused was held guilty of the offence of defamation.
Punishment for defamation: According to section 500, Whoever defames
another shall be punishable with simple imprisonment for a term which
may extend to two years , with or without fine.
 Chapter: Criminal intimidation, Insult and Annoyance
Question: Write a short notes on criminal intimidation.
Section 503: Criminal intimidation: Whoever threatens another with any injury
to his person, reputation or property, or to the person or reputation of any
one in whom that person is interested, with intent to cause alarm to that
person, or to cause that person to do any act which he is not legally bound
to do, or to omit to do any act which that person is legally entitled to do, as
the means of avoiding the execution of such threat commits criminal
intimation.
Explanation: A threat to injure the reputation of any deceased person in whom
the person threatened is interested, is within this section.
Illustration: A, for the purpose of inducing B to desist from prosecuting a civil
suit, threatens to burn B’s house. A is guilty of criminal intimidation.
Section 503 defines the offence of criminal intimidation whereas punishment for
the offence is prescribed in Section 506, IPC. Section 507 and 508 deal with
Punishment for aggravated forms of criminal intimidation may briefly be stated
as follows:
1. Threatening a person with injury to his person, reputation or property or to
the person or reputation of any one in whom that person is interested; and
2. The threat must be with the intention:
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do; or
(iii) to cause a person to omit to do any act which that person is legally
entitled to do as the means of avoiding the execution of that threat.
Threatening a perjson of taking revenge will be an offence under this section.
Thus in Purshottam Vanmali v. Emperor, the Sub-inspector of Police sent a
constable to bring some persons from whom he wanted to gather
information about a certain offence. While the constable was bringing two
persons with him the accused intervened and threatened the constable,
with the result, the two persons refused to accompany the constable who
had to return to police station without those persons. The accused was held
guilty of criminal intimidation under Section 503, IPC.
Where a person threatens another to commit suicide, it would no be an offence
of criminal intimidation unless the person to whom the threat is given has an
interest in the person giving the threat.
Difference between Criminal Intimidation and Extortion(Section 503 and 383, IPC)
Though there is similarity between criminal intimidation and extortion, they differ
in the following aspects:
(1) The main object of extortion is to obtain money or money’s worth by putting
a person in the instant threat of danger to life or injury but the purpose of
criminal intimidation is to induce the person threatened to do or refrain from
doing something he is not legally bound to do or omit.
(2) In extortion, the threat is addressed directly to the victim who is present
before the offender but criminal intimidation need not be directly addressed
to the perjson intended to be threatened.
(3) In criminal intimidation the threat need not have actually produced the
desired result, but still the person intimidating will be laible for the offence.
It is not so in case of extortion.
(4) The delivery of the property is the essence of the offence of extortion,
whereas there is no delivery of property by the victim to the accused in
criminal intimidation.
(5) The offence of criminal intimidation which is punishable under Section 506 is
non-cognizable, bailable and punishable with imprisonment up to 2 years,
whereas the offence of extortion under section 383 is cognizable and
punishable with imprisonment up to three years. It is therefore, evidence that
the offence of extortion is graver than that of criminal intimidation.
Section 504: Intentional insult with intent to provoke breach of the peace:
Whoever intentionally insults, and thereby gives provocation to any person,
intending or knowing it to be likely that such provocation will cause him to
break the public peace, or to commit any other offence, shall be punishable
with imprisonment of either description for a term which may extend to two
years, with or without fine.
An analysis of the provision contained in this Section, indicates that it comprises,
the following ingredients , namely
(a) intentional insult;
(b) Such insult should be such as to give provocation to the person insulted, and
(c) The accused must intend or know that such provocation would cause
another to break the public peace or to commit any other offence.
Thus one of the essential elements constituting the offence under Section 504 is
that there should have been an act or conduct amounting to intentional
insult and the mere fact that the accused abused the complainant, as such,
is not sufficient by itself to warrant a conviction under this section.
A person may be insulted by use of vulgar and abusive words or by conduct.
When such insult provokes breach of peace, the provision of the section is
attracted. But it should be intentional or with knowledge of the accused that
breach of peace is likely to result out of such insults.
The court held in one of the cases that the term insult means to treat with
Offensive disrespect or offer indignity to the person so insulted.
The use of obscene abusive words by the landlord to his woman tenant at the
water-tap to constitute the offence under this section. Similarly, use of
abusive and insulting words like harmazad, sooar, badmash, sala etc, were
held to be sufficient to provoke the person who was targeted to cause
breach of peace in public and therefore, punishable under Section 504, IPC.
Distinction between Defamation (section 499) and Insult(Section 504)
The main difference between the two offences is that ‘insult’ is directly
addressed to the person who is insulted but defamatory statement is
referred to a person other than the person defamed.
Where a defamatory statement is straightway addressed to the person
defamed, it will not be an offence of defamation but may amount to the
offence of insult. Secondly, likelihood of the breach of peace is an essential
requirement for the offence of insult under Section 504 but defamation does
Thirdly, insult under Section 504 is punishable with imprisonment, which may be
either rigorous or simple, but defamation is punishable only with simple
imprisonment and does not provide for rigorous imprisonment.
Fourthly, the offence of insult is triable by any Magistrate but the offence of
defamation is triable by Court of Session and not by any a Magistrate.
Section 505. Statements conducing to public mischief:
1. Whoever makes, publishes or circulates any statement, rumour or report:
(a) with intent to cause, or which is likely to cause, any officer, soldier, sailor or
airman in the army, Navy or Airforce of India to mutiny or otherwise disregards
or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or
to a any section of the public whereby any person may be induced to commit an
offence against the State or against the public tranquillity; or
(c ) with intent to incite, or which is likely to incite, any class or community of
persons to commit any offence against any other class or community:
Shall be punished with imprisonment which may extend to three years with or
without fine.
(2) Statements creating or promoting enmity, hatred or ill-will between classes:
whoever makes, publishes, or circulates any statement or report containing
rumour or alarming news with intent to create or promote, or which is likely
to create or promote, on grounds of religion, race place of birth, residence,
language, caste or community or any other ground whatsoever, feeling or
enmity, hatred or ill-will between different religious, racial, language or
regional groups or castes or communities, shall be punished with
imprisonment which may extend to three years.
(3) offence under sub-section (2) committed in place of worship etc: Whoever
commits an offence specified in sub-section (2) in any place of worship or in
an assembly engaged in the performance of religious worship or religious
ceremonies, shall be punished with imprisonment which may extend to five
years and shall also be liable to fine.
Exception: It does not amount to an offence, within the meaning of this section,
 when the person making, publishing or circulating any such statement, rumour or
report, has reasonable grounds for believing that such statement, rumour or
report is true and makes, publishes or circulates it in good faith and without
intent as aforesaid.
Section 506: Punishment for criminal intimidation: Whoever commits, the
offence of criminal intimidation shall be punished with death or imprisonment
for life, or with imprisonment for a term which may extend to seven years, or
to impute, unchastity to a woman, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or
with both.
In State of Himachal Pradesh v. Prem Singh, 2009, the accused was a teacher
who allegedly had sexually ravished the prosecutrix and had outraged the
modesty of not only the prosecutrix but several other girl students of the
school. However, the case of rape on prosecutrix could not be established for
want of sufficient evidence but the court converted the offence of the accused
into sections 354/506, IPC and sentenced him to two years and six months
imprisonment.
Section 507: Criminal intimidation by an anonymous communication: Whoever
commits the offence of criminal intimidation by an anonymous
communication, or having taken precaution to conceal the name or abode of
the person from whom the threat comes, shall be punished with
imprisonment of either description for a term which ay extend to two years,
in addition to punishment provided for the offence by the last proceeding
section.
Criminal intimidation by anonymous communication such as by unnamed letter,
telephonic conversation, mobile or e-mail being a common occurrence, it has
been made a specific separate offence under this section of the IPC.
According to Section 508, where a person by his act induces a person to believe
that he will be rendered an object of Divine displeasure, if he does not do the
thing which the offender wants to cause him to do, or if he does the thing
which the offender wants him to omit to do, he shall be punishable under this
section. To cite, an illustration: A sits dharna at Z’s door with the intention of
causing it to be believed that, by sitting, he renders Z, an object of Divine
Section 509: Word, gesture or act intended to insult the modesty of a woman:
Whoever, intending to insult the modesty of any woman, utters any word,
makes any sound or gesture, or exhibits any object, intending that such word
or sound shall be herd, or that such gesture or object shall be seen, by such
woman, or intrudes upon the privacy of such woman shall be punished with
simple imprisonment for a term which may extend to three years, and also
with fine.
In Rupan Deol Bajaj v. K.P.S Gill, D. G. Police, Punjab, 1996, the accused Gill, D.
G. Police, Punjab was held guilty of offence under Sections 354/509 for
slapping I.A.S officer Mrs. Rupan Deol Bajaj on her posterior in a party. His
act was held to be affront to the dignity of a lady and it amounted to
outraging the modesty of Mrs. Bajaj.
Section 510: Misconduct in public by a drunken person: Whoever, in a state of
intoxication, appears in any public place, or in any place which it is a trespass
in him to enter, and there conducts himself in such a manner as to cause
annoyance to any person, shall be punished with simple imprisonment for a
term which may extend to twenty-four hours, or with fine.
This section penalises a person for his misconduct or act of trespass while he is
a drunken state. Thus, if a drunken person commits any act of nuisance in a
public place, he would be punished under this section. Public roads,
educational or professional institutions, public market, railway bogie, bus
stand, public part or library etc. are some of the examples of public places.
It is to be noted that this section does not punish mere being in a state
of intoxication or drunkenness.one more noteworthy feature of the offence
under this section is that no ‘mens rea’ is required to commit this offence.
 Chapter: attempts to commit offences
Questions: 1. State the law relating to preparation and attempt to commit
offence.
2. Write a note on attempt to commit offences.
Section 511: Punishments for attempting to commit offences punishable with
imprisonment for life or other imprisonment: Whoever attempts to commit an
offence punishable by this code with imprisonment for life or imprisonment, or
to cause such an offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express provision is
made by this Code for the punishment of such attempt, be punished with
imprisonment for any description provided for the offence, for a term which
may extend to one-half of the imprisonment for life or, as the case may be, one-
half of the longest term of imprisonment for life or, as the case may be, one-half
of the longest term of imprisonment provided for that offence, or with such fine
as is provided for the offence, or with both.
Illustrations: (a) A makes an attempt to steal some jewels by breaking open a
box, and finds after so opening the box, that there is no jewel in it. He has
done an act towards the commission of theft, and therefore is guilty under
this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s
pocket. A fails in the attempt in consequences of Z’s having nothing in his
pocket. A is guilty under this section.
Before dealing with the scope and extent of the offence under this section, it
must be understood that commission of a crime involves four main stages:
1. Motive or intention;
2. Preparation;
3. Attempt; and
4. Commission of criminal act.
Mere intention to commit a crime is no offence unless is followed by an overt
act or commission. That being so, though intention alone is not punishable
the penal law, but it is equally true that there cannot be an offence without
mens rea, which is one of the essential pre-requisites for a crime.
‘Preparation’ is the next stage of a crime. Having formed the intention to
commit a particular crime, the offender moves ahead to prepare for the
commission for that offence. Preparation essentially involves arranging for
means and measure necessary for the contemplated offence. As a general
rue, preparation for committing a crime is not punishable. However, there
are four exceptions where ‘Preparation by itself is punishable offence under
The Indian Penal Code. They re:
1. Collecting arms etc., with intention of waging war against the Government of
India(Section 122, IPC)
2. Committing depredation on territories of Power at peace with the
Government of Indian(Section 126, IPC).
3. Making, selling or possessing instrument or material for counterfeiting
coins(Sections 233, 234 and 235, 256,257, IPC).
4. Making preparation to commit dacoity(section399, IPC);
5. Making or possessing counter seals etc., (Sections 472, 473, 474, 475 and
476);
6. Making or possessing instruments for counterfeiting (sections 485, 486).
The third stage of an offence is attempt to commit the same. The offender
proceeds ahead to attempt a crime after making necessary preparation for it. In
fact, attempt is a step ahead towards commission of an intended offence.
As Sir James Stephen rightly observed “attempt to commit a crime is an act
done with intent to commit that crime, and forming part of series of acts, which
would constitute its actual commission, if it were not interrupted”.
Thus, attempt is an act which a person does, towards the commission of the
intended offence, but for being hindered by circumstances beyond his control.
The distinction between preparation and attempt may be illustrated by a simple
example. Where a person purchases a gun and loads it with the intention of
shooting his enemy, it is the stage of preparation for which he incurs no criminal
culpability, but if he moves towards his enemy and chases him with the
loaded gun in his possession, and is arrested before the act of shooting, he
would be liable for attempt to murder his enemy. However, if he succeeds in
the act of shooting, he will be guilty of having committed the offence of
murder.
The Supreme Court, in Koppula Venket Rao v. State of Andhra Pradesh, 2004 ,
held tht a solitary Section 511 included in Chapter XXIII that is the last
chapter) captioned of attempts to commit offences under IPC make attempt
to commit an offence punishable.
According to this section, attempt to commit only the offences which are
punishable with life-imprisonment or other imprisonment are punishable
under this provision. This means that this section is not applicable to
attempt to commit an offence which is punishable with death or an offence
which is punishable only with fine. One-half of the imprisonment for life, for
the purpose of this section would be imprisonment for 10 years by virtue of
The provisions as to ‘attempt’ as an offence under the Indian Penal Code may
broadly be place in three categories as follows:
1. The offences for which punishment has been provided along with attempt to
commit them in the same section.
2. the offence the attempt of which is made punishable under a separate
independent section keeping in view the gravity of these offences.
They are :
(i) Attempt to murder (Section 307)
(ii) Attempt to commit culpable homicide (Section 308)
(iii) Attempt to commit suicide(Section 309) Now it stand repealed,
(iv) Attempt to commit robbery(Section 393); and
(v) Attempt to commit robbery or dacoity when armed with deadly
weapon(Section 398)
3. Attempt to commit any of the offences for which there is no separate
provision under Penal Code, is made punishable under Section 511 of IPC.
The Supreme Court in Aman Kumar v. State of Haryana ,1862 observed that
attempt to commit an offence is a stage subsequent to preparation of that
offence . Collecting or making available means or materials for committing
the offence generally constitutes ‘preparation 'for that crime whereas
attempt is a stage next to preparation wherein some effort is made to
transform that offence into action.
Tests for distinguishing preparation from attempt
Though it has been generally accepted that whether a particular act is
preparation to a crime circumstances of each case, certain guiding principles
have been evolved to decide the complex issue. They are as follows:
1. The proximity rule.
2. Doctrine of locus poenitentiae.
3. The equivocality Test.
(1) Proximity Rule - where the accused has completed services of act for the
accomplishment of he intended crime except the final contemplated result,
then it would be said that he has attempted to commit that crime. Thus, an
act or services of acts done by the accused are considered proximate, to the
ultimate commission of the crime.
(2) Doctrine of Locus poenitentiae – In many case a person having made all
preparations to commit an offence, backs out and drops the idea of
committing it any further due to call for conscience (change of heart),
compulsion, fear and apprehension of being watched etc. Thus where the
person on his own accord abandons the idea of committing a crime before
any act in furtherance thereof is called out, it will amount only to
preparation and not attempt.
(3) The essence of the doctrine of locus poenitentiae as a test for determining
whether the offence(act) constituted an attempt or preparation lies in the
fact whether the overt act already done were such that if the offender
changed his mind and decided not to proceed further with the act, the acts
already done would be completely harmless. If it is some it will account to only
preparation for that offence and not the attempt.
3. The Equivocality test – While the locus poenitentiae test is founded on the
presumption of ‘no attempt’ the equivocality test is based on the
presumption that offence of attempt to commit a crime is deemed to have
been committed if the act or acts unequivocally indicate the intention of the
perpetrator to accomplish the criminal object that is, the intended crime.
This, in other words, means that if the act done by the accused indicates
beyond reasonable doubt that the end towards which it is directed, it will be
an attempt, otherwise it will be a mere preparation.

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