Short Note (4 Marks)

1. Exception of Insanity

The Indian Penal Code considers insanity as a general exception under

section 84. Criminal intent is necessary to make a person legally liable
for a crime. Section 84 of IPC states that unsoundness of mind is a
defence of a person to a criminal charge on the theory that “one who is
insane has no mind and hence cannot have the necessary mens rea to
commit a crime. Insanity is popularly denoted by idiocy, madness,
lunacy, to describe mental derangement, mental disorder and all the
forms of mental abnormality known to medical science.

However, insanity in law differs markedly from the medical concept.

Insanity in law means a disorder of the mind which impairs the
cognitive faculty i.e. the reasoning capacity of a man, to such an extent
as to render him in capable of understanding the nature and
consequence of his actions. It excludes from its purview insanity which
could be engendered by emotional or volitional factors. In other words,
every aberrative act performed by a person cannot exempt him from
criminal responsibility it is only insanity of a particular or appropriate
kind which is regarded as insanity in law that will exempt a man from
criminal liability.

Ingredients of Section 84 of IPC:-

To invoke the benefit of section 84, it must be proved that at the time of
commission of the offence, the accused was (insane) (not of sound mind)
and that the unsoundness of mind was of such a degree and nature as to
fulfil one of the tests laid down in section.

i) First, the accused was incapable of knowing the nature of the act and
ii) Secondly, that the accused was precluded by reason of unsoundness of
mind from understanding that what he was doing was either wrong or
contrary to law.

The first category covers two situation, namely automatism and mistake
of fact due to unsoundness of mind as a defence.
For instance:- If a mad man cuts off head of a man sleeping on the road,
because it would be fun to watch him searching his head when he
awakes, the act shows that he did not know the nature and quality of his
act.

The second category covers those cases wherein a man by reason of

delusion is unable to appreciate distinction between right and wrong.

For instance: If the accused kills his uncle by severing his head and
neck with a sword while shouting ‘Victory to Kali’, and thereafter
attempted to strike other members, it was held that the accused fell
within the second part of the section. It was found that the accused was
suffering from a fit of insanity and was unable of knowing that he was
doing an act which was contrary to law and hence he was acquitted
from the charge of Murder.

In Surendra Mishra v State of Jharkhand AIR 2011 SC 627, the

Supreme Court held that an accused who seeks exoneration from
Criminal liability of an act under Section 84 is to prove legal insanity
and not medical insanity.

In Dayabhao Chaganbhai v State of Gujarat, the Supreme Court held

that in determining whether the accused has established that his case
comes within the preview of Section 84 the court has to consider the
circumstances which preceded, attended and followed the crime. The
relevant facts are the motive for the crime, the previous history as to
the mental condition of the accused, the state of his mind at the time of
 offence and the events immediately after the incident which throw lights
on the state of his mind.

2. Custodial Rape
Custodial rape is a serious crime and a grave violation where the
aggressor not only takes undue advantage of his authority to control the
individual, usually a woman, but also violates the individual’s bodily
integrity and the duty to care for and protect the citizens and their
rights.

Essential ingredients of rape : a general view

The essence of the offence of rape as defined under Section 375 of the
IPC is sexual intercourse by a male with a female against her will and
without obtaining prior consent under any of the following conditions:

1. Against her will,

2. Without obtaining her consent,

3. With obtaining consent by force by putting her or another

individual in whom she is interested in the fear of causing death,
hurt or injury,

4. With obtaining consent under the pretext or misconception that the

man is her husband,

5. With obtaining consent by reason of unsoundness of mind or when

she is heavily intoxicated or under the influence of any drugs or
substance,
 6. Women under the age of 18, i.e., minor with or without her
consent,

7. When a woman is not able to give or communicate consent.

Thus, any activity belonging to the aforementioned seven categories will

amount to rape.

Top cases that brought changes in custodial rape laws:

Between the 1970s and 1990s, there were three cases of custodial rape
that were widely spread and gained political affluence too. The three
cases were as follows:

1. Mathura rape case in Maharashtra in 1974,

2. Rameeza Bee rape case in Andhra Pradesh in 1978, and

3. Maya Tyagi rape case Uttar Pradesh in 1980.

Protests were carried out against such atrocities by uniformed officials
against the local public, and the Indian Government had to take the
necessary actions to address the issue.

Brief facts of the case: (Time-line of Events)

26th March, 1972: Complaint lodged by victim’s brother in

Desaiganj Police station where the accused policemen were
posted- The 16 years old victim girl named Mathura was in a love affair
with a boy named Ashok living in her neighbourhood. Her brother
objected to their relationship and consequently filed a criminal complaint
in Desaiganj police station against Ashok, alleging him of abducting his
sister and forcing her into prostitution. Resultantly, the victim was
summoned to the police station on the night of 26th March, 1972 to give
statement regarding her brother’s abovesaid complaint. She was
accompanied by Ashok to the police station. The 2 police constables,
Tukaram and Ganpat who were accused in this case were the only
policemen who were present at the Desaiganj Police station at that time.
Late night around 10:30 PM the accused policemen (who were highly
drunk on duty) sent Ashok back to his home but asked the victim girl to
stay inside the Police station campus. According to the girl’s testimony
Constable Ganpat took her to a washroom at the backyard of Police
station raped her. After him Constable Tukaram tried to rape her but
failed in his attempt because he was high intoxicated.

27th March, 1972: Victim taken to local government dispensary-

Soon after the alleged incident the girl reported the crime to her brother
and other people in their community and they took her to a local
government dispensary.

The doctor present there refused to medically examine her claiming that
he was not authorized to conduct rape tests. However, he gave her a
reference letter to a larger hospital at chandarpur.

28th March, 1972: Medical test conducted on the victim’s body-

A day after the alleged crime, medical test of the victim was successfully
conducted at Chandarpur Hospital.

The procedure followed by the doctors in her medical test suffered

several loopholes. The main one was the two- fingers test performed on
victim’s body. (The two-fingers test was claimed to be an absurd
phenomenon by professor Upendra Baxi in his open letter to CJI. Later on
such tests were prohibited).

Highlights of the Medical test were:

➢ The girl didn’t had any injury on her body.

➢ There was no pubic hair present in her private parts.

➢ No semen was detected inside her vagina, although it was found on her
clothes and underwear.

Findings of Chandrapur district court:

The district court, Chandrapur was of the view that the act of rape was
never committed on the body of the victim and therefore acquitted the
accused of all charges.

The judge in his judgment said “She was used to having sex and must
have consented to the Police. She claimed so that she would appear
virtuous to her lover”. The decision of the district court was subjected to
widespread criticism and the views of the judge were alleged to be highly
sexist.

Findings of Bombay high court (Nagpur bench):

The Bombay high court’s Nagpur bench in its judgment dated 12th
October, 1976 reversed the decision of district court and convicted the
accused policemen.

Ganpat was sentenced to 5 years imprisonment for raping the victim and
Tukaram was sentenced to 1 years imprisonment for assault or criminal
force to a woman with intent to outrage her modesty.

In an appreciated move all over the nation, the Bombay high court laid
down a thin line of differentiation between Passive submission and
Consent. The Court held that passive submission doesn’t amounts to
consent, and in the instant case the girl passively submitted to the acts of
the accused but didn’t consented.

Findings of the Supreme Court:

In an appeal by the accused to the Supreme court, the three judge bench
of the apex court in a judgment dated 15th September, 1978 reversed the
high court order and overturned convictions of the 2 accused policemen.

The judgment noted “Mathura must have consented because she didn’t
screamed, and there were no visible bruises on her body”.

In the Judgment Justice A.D Koshal said “No marks of injury were found
on the person of the girl after the incident and their absence goes a long
way to indicate that alleged intercourse was a peaceful affair, and that
the story of a stiff resistance having been put up by the girl is all false”.

The Supreme Court restored the highly criticized district court judgment
declaring that the act was a consensual sexual intercourse.

Aftermath of the Judgment:

In response to the Supreme Court’s verdict there was a massive uproar

among the public all over the nation, disapproving the findings of the
Court.

In this context an Open letter to the Chief Justice of India was written by
Professor Upendra Baxi, dean of University of delhi law school. The letter
was also signed by 3 prominent law professors of the country who were-
Vasudha Dhagamwar; Raghunath Kelkar; and Lotika Sarkar.

The open letter dated 16th September, 1979 spread like wildfire among
the masses and got featured in various national and international
newspapers.

The following four were the primary prayers in the letter:

➢ Shift burden of proof from victim to accused.

➢ Harsher punishment for rape.

➢ Law prohibiting real name of rape victim to appear in public arena.

➢ A ban on absurd two-finger tests performed on the body of victim.

The open letter was never entertained by the Supreme court, but the
Parliament of India gave due acknowledgment to the issue raised and
finally, as a consequence of the letter introduced the Criminal law
amendment act, 1983 that bought reformative changes in sexual assault
laws of the nation. Some of the changes were:

I. Section 114 A in Indian Evidence act, 1872: Section 114 A was inserted
in the Indian Evidence act by virtue of Criminal law amendment act,
1983. This section shift the burden of proof on the accused. Therefore, if
it has been proved that sexual intercourse between the accused and
victim took place, and the victim says that it was not consensual, than the
court will presume it to be non-consensual, even if there is no
corroboration of evidence.

II. Section 376 of IPC, 1860: Section 376 of IPC prescribes punishment
for the offence of rape. This section was amended and custodial rape was
made an offence publishable with imprisonment of not less than 7 years.

III. The following sub-sections to Section 376 were also added:

a. Section 376A- Intercourse by a man with his wife during separation;

b. Section 376B- Intercourse by a public servant with woman in his

custody.

c. Section 376C- Intercourse by superintendent of jail, remand home

d. 376D- Gang rape

 IV. By the virtue of this amendment, the Publication of victim’s identities
(including her name) were also banned and prohibited. (For instance, in
Nirbhaya rape case the name of the victim ‘Nirbhaya’ was a court given
name and not her real name).

V. The amendment prescribed that rape trials should be conducted as in-

camera proceedings.

3. Mischief
The concept of mischief is defined in Section 425 of the Indian Penal
Code (IPC), and the corresponding punishment is outlined in Section
426 of the IPC. Additionally, Sections 427 to 440 of the IPC specify the
punishment for aggravated forms of mischief, considering the nature
and value of the property damage.
According to Section 425 of the IPC (Indian Penal Code) enacted in
1860, mischief is committed when an individual intentionally causes
destruction or damage to any property, thereby reducing its value and
usefulness, resulting in unnecessary loss or damage to the public or any
person. This applies to situations where the person performing the act
is aware that it is likely to cause harm to the property.
In simpler terms, mischief in IPC can be defined as the intentional act or
the act performed with the knowledge that it will prevent another
person from enjoying the benefits of their property. This act can be
directed against either the public or a specific individual.

Illustrations
 For a simple understanding, some examples of mischief under IPC
that can be seen are:
 ‘A’ destroys a car jointly owned by ‘A’ and ‘B’, intending wrongful
loss to ‘B
 ‘A’, a student takes a copy of the question paper before the exam to
diminish its utility.
  ‘A’ damages important documents belonging to ‘B’, intending
wrongful loss to ‘B’.
 ‘A’ causes cattle to enter the property of ‘B’ to cause damage to his
crops.
 ‘A’ deliberately throws a ball at the neighbour’s window.

The objective of Law of Mischief under IPC

The Law of Mischief under the IPC is designed to offer safeguards
against destroying property that leads to wrongful loss or damage to the
public or an individual. It serves as an extension of the legal principle
sic utere tuo ut alienum non-laedas, which translates to “use your
property in such a way as not to injure the property of others or your
neighbours.”
Illustrations
 “A” intentionally sets X’s home on fire, causing him wrongful loss or
injury.
 “A” a doctor deliberately prescribed the wrong medicine to “B’s”
cattle with an intent to cause wrongful loss or injury.
 “C” diverts the flow of the canal in such a way as to prevent “B”
from irrigating his field, causing him loss by damage to crops.
 “B” tears off some important business-related documents of A to
cause him financial loss.
 “A” deliberately burns off the standing crop that was jointly
cultivated by “A” and “B”.
 “B” intentionally damages a “signboard “installed by order of the
municipality, causing wrongful losses & injury.

Punishment for Mischief in IPC

The punishment for mischief is outlined in Section 426 of the Indian
Penal Code. According to this section, anyone found guilty of
committing mischief can be sentenced to imprisonment for up to three
months, or they may be fined, or both imprisonment and fine may be
imposed as a collective punishment.
Scope of Mischief under IPC
Section 425 of the IPC encompasses acts that damage or destroy
property, leading to wrongful loss or damage. It has a broad scope and
applies to both public and private damages.
However, it is important to note that this section does not apply in cases
where there is no element of intention. Furthermore, the accused
person doesn’t need a valid motive or benefit from the act of mischief
under IPC.
There are additional considerations to be taken into account. For
instance, whether this section applies in cases where the accused
person damages their property or if it covers situations where property
damage is a consequence of an illegal act or failure to make a payment.

Essential Ingredients of Mischief in IPC

1. Intention or knowledge: The word ‘Mischief’ here has been used in

special sense as implying the causing of such unlawful injury to
property as is punishable by law. The first and most essential element
is the intent to cause or knowledge that he is likely to cause wrongful
loss or damage to the public or to nay person. Mens rea is an
essential ingredient of the offence in mischief.

2. Wrongful loss or damage: The expression ‘wrongful loss or damage’

in section 425, IPC must mean loss or damage by unlawful means. To
constitute the offence of mischief there must be destruction of
property.

Punishment for Mischief:

Section 426 prescribes punishment for mischief defined in section

425 which may extend to imprisonment for a period of three months
or fine or both.
4. Offences relating Marriage

The offences relating to marriage can be demonstrated in four head:

1. Mock Marriage (493 and 496 IPC)
2. Bigamy (Section 494 and 496 IPC)
3. Adultery (Section 497 IPC)
4. Criminal elopement (Section 498, IPC)

1. Mock marriage (Section 493) – This section punishes the offence

committed, when a man, either married or unmarried, induces a
woman to become as he thinks, his wife, but in reality concubine. In
other words, section 493, IPC only punishes a man for obtaining the
body of a won by deceitful assurance that he is her husband. A case
under this section can also be covered under Section 375 clause 4
IPC amounting to rape by consent obtained by inducing the women
to believe that she is lawfully married to the man having sexual
intercourse with her when in fact it is not so.

Ingredients:-

i. Firstly, when a man deceitfully induces a woman to have

sexual intercourse with him, and
ii. Secondly, causing her to believe that she is lawfully married
to him.

In the case of Moideen kutty Jaji v Kuhikoya (AIR 1987 ker

184) Where the allegation was that though they were not husband
and wife, they had sexual union during late hours in the night for a
pretty long time and there was only a promise to marry in future,
and the further allegation was that one day they went for registering
the marriage but the man ran away from and even thereafter she
 submitted herself to him regularly, for liaison, the facts could not at
all attract section 493, IPC.

2. Bigamy (Section 494) – According to Section 494 any person,

who having a husband or wife living marries another in any case in
which such marriage would be void by reason of it taking place
during the life time of such wife or husband, is guilty of bigamy and
punishable for a term of imprisonment which may extend to seven
years and fine. The section makes bigamy an offence in case of all
persons living in India irrespective of religion of either sex, namely
Hindus, Christians, Parsis except Muslim males.

The scope of this section is wide. It is applicable to both husband

and wife. The offence is non-cognizable, bailable. Compoundable
and triable by a Magistrate of the first class.

In the case of Muslim personal law permits polygamy for males (up
to four wives) but insists on monogamy for females. Thus a Muslim
male marrying a fifth wife during the continuance of four earlier
marriages and a muslim wife marrying during the subsistence of an
earlier marriage are punishable under section 494, IPC.

Ingredients:-

i) That the accused spouse had already been married

ii) That while the first marriage was subsisting, the spouse
contracted a second marriage
iii) That both the marriages have been valid in the sense that
the essential ceremonies, such as Dutta Homa and
Saptapadi required by the personal laws governing the
parties had been duly performed (in case of Hindus).
3. Adultery (Section 497 IPC) – This section provides punishment for
adultery. Adultery is a invasion on the right of the husband over his
wife. In other words, it is an offence against the sanctity of
matrimonial home and an act which, is committed by a man. It is an
anti-social and illegal act. It consists in having carnal knowledge of
a married woman with knowledge of that fact, without the consent
or connivance of her husband. In the case of Munir v. Emperor,
(1925) that to constitute adultery, sexual intercourse is necessary
ingredient.

Ingredients:-

i) Sexual intercourse must be committed with the wife of

another man
ii) The person must have knowledge or has the reason to
believe that the woman is the wife of another man
iii) Such sexual intercourse must be without the consent or
connivance of the husband
iv) Such sexual intercourse must not amount to the offence of
rape.

4. Criminal elopement (Section 498, IPC) – Section 498, IPC deals

with the offence of criminal elopement. The provision of 498, are
intended to protect the rights of the husband and not that of the
wife. The gist of the offence under section 498 is the deprivation of
the husband of his custody and his proper control over his wife
with the object of having illicit intercourse with her by the act of
some blandishment or allurement whereby her consent so to stay
away is obtained by the offender. Use of physical force upon the
woman is not an ingredient of the offence.

Ingredients:-
 i) Taking or enticing away or concealing or detaining the wife
of another man from a) that man, or b) any person having
care of her on behalf of that man
ii) Knowledge or reason to believe that she is the wife of
another man
iii) Such taking, concealing or detaining must be with the
intent that she may have illicit intercourse with any person.

5. Exception of necessity (Doubt)

Section 81 of the Code grants immunity to a man from Criminal
charge with respect to acts committed under compelling
circumstances forced by necessity. In every law there are some
things which when they happen a man may break the words of law,
ad not break the law itself and such things are exempted out of the
penalty of the law and the law privileges them although they are
done against the letter to it; breaking the words of the law is not
breaking the words of law, so long as the intent of the law is not
broken.

Extent and Scope of the defence:

However, the defence does not give blanket immunity from liability
in all circumstances. It is available only in exceptional cases as
stated in section 81 of the code namely:

i) Where the act was done in order to avoid consequences which

could not otherwise be avoided and which if they had followed
would have caused irreparable damage.
ii) That no more harm was done than was necessary for that purpose
iii) That the evil inflicted was not disproportionate to the evil
avoided.

Ingredients:
 Section 81 gives legal protection to the doctrine of salvage, i.e. self
preservation (rescue of property and things from fire etc) it
sanctions and justifies the doing of a lesser evil in order to avert a
greater evil.

To attract the provisions of this section the following conditions

must be satisfied:

i) The act must have been done without any criminal intention to
cause harm
ii) The act must be done in good faith for the purpose of preventing or
avoiding other harm to person or property
iii) The harm must have been done in order to avert a greater
harm

The explanation to the section makes it clear that it is a question

of fact to be decided in accordance with each case as to whether
the harm to be prevented or avoided was of such nature as to
justify or excuse taking the risk of the act.

6. Begging as per IPC* (doubt)

Section 363 A of IPC aims at punishing unscrupulous persons who

have been known to organize begging as an industry and fatten on
the ill-gotten gains obtained from the practice of begging. It is a.
social evil and the present section is intended to punish the
miscreants who engage and exploit children for the purpose of
begging.

This section makes kidnapping or obtaining custody of minor and

the maiming of a minor for employing him for begging a specific
offence and provides for a severe punishment of 10 years either
rigorous or simple or life term with fine.
 Ingredients:
i) The person kidnapped is minor.
ii) The kidnapper is not the lawful guardian
iii) Such kidnapper obtains the custody of the minor
iv) Such kidnapped person is employed or used for purpose of
begging
v) The kidnapper has maimed the minor kidnap

7. Dacoity

Section 391 defines Dacoity (Gang Robbery) - There is no difference

between robbery and dacoity except in the number of offenders.
Robbery is dacoity, if the persons committing robbery are five or more
in number. In Malaysia and Singapore dacoity is termed as 'gang
robbery'. The offence of dacoity consists in the cooperation of five or
more persons to commit or attempt to commit robbery. s necessary
that all the persons should share the common It is intention of
committing robbery.
In a case of dacoity the circumstances that the inmates of the house,
seeing the large number of dacoits, offer no resistance and no force or
violence is required or used by dacoits does not reduce the dacoity to
theft. The accused persons who committed dacoity in the houses of the
complainant one after another, were held liable under section 395 for
committing dacoity.

Ingredients:

(1) The accused commit or attempt to commit robbery;

(2) Persons committing or attempting to commit robbery and persons

present and aiding must not be less than five;
(3) All such persons should act conjointly.

The word conjointly refers to united or concerted action of five or

more persons
participating in the act of committing the offence. In other words,
five or more persons should be concerned in the commission of the
offence and they should commit or attempt to commit robbery.

In the case of recovery of stolen property at the instance of the

accused just after the occurrence, the accused are liable to be
convicted not only for dishonestly receiving property stolen in the
commission of a dacoity under section 412, IPC but also under section
391, IPC with the aid of section 114, Evidence Act. All the accused
persons committed dacoity in the houses of the complainants one
after the other and looted and took away various kinds of property in
the nature of watches, ornaments, etc. Held, the accused were guilty
under this section in the case of Lachaman Ram v State of Orissa
(1985).

8. When theft becomes robbery.

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

Theft, as defined in section 378, is the dishonest removal of

movable property out of the possession of any person without his
consent and section 379 prescribes punishment for theft.
 There are five Explanations attached to section 378 to explain when
an act amounts to theft.

Ingredients:
(1) The accused must have a dishonest intention to take the
property;
(2) The property must be movable;
(3) The property must be taken out of the possession of another
person, resulting in wrongful gain by one and wrongful loss to
another; (4) The property must be moved in order to such taking,
ie, obtaining property by deception; and
(5) Taking must be without that person's consent (express or
implied).

Section 390 defines robbery. Robbery in common language means

to deprive a person of his or her property. The chief distinguishing
element in robbery, theft and extortion is the presence of imminent
fear of violence.

In all robbery there is either theft or extortion. The essence of the

offence of robbery is that the offender, for committing theft or for
carrying away or attempting to carry away the looted property,
voluntarily causes or attempts to cause death, or hurt or wrongful
restraint.

9. Five exceptions to Murder as per section 300 IPC.*

Murder is a heinous offence which is punishable under the Indian

Penal Code. Murder is defined in Section 300 where culpable
homicide amounts to murder. Culpable homicide (Section 299) is
genus and murder is its species. It is necessary that all murder is
a culpable homicide but not necessary that all culpable homicide
is a murder. The punishment for the murder is defined in Section
302. There are certain exceptions provided in Section 300 which
state the case of culpable homicide which does not amount to
murder, which is punishable under Section 304 of Indian Penal
Code.

The exceptions are: -

1) Grave and sudden provocation

2) Private Defence
3) Exercise of Legal Power
4) Without premeditation in a sudden fight
5) Consent

The above stated extenuating circumstances do not offer complete

vindication of the conduct of the accused. But they do reduce the
impact of gravity of the offence. In general the onus of proving the
guilt of the accused always rests on the prosecution. But the
burden of proving the existence of circumstances bringing the
case within exception under Section 300 of IPC (as in case of
exception lies upon the accused).

Exception 1 : Grave and Sudden Provocation as mitigation-

The code has listed under exception 1 to 300, IPC the

circumstances under which the offence of murder will be reduced
to ‘culpable homicide not amounting to Murder’ punishable under
Section 304, IPC if the murder is committed on provocation
adduced by the deceased. The following are conditions in order to
invoke benefit:-

1. The deceased must have given provocation to the accused.

2. The provocation must be grave.
3. The provocation must be sudden.
4. The offender, by reason of the said provocation, should have
been deprived of his power of self-control.
5. The accused killed the deceased during the continuance of the
deprivation of the power of self-control.
6. The offender must have caused the death of the person who
gave the provocation or that of any other person by mistake or
accident.
It may be stated that the defence of provocation is further limited
by the flowing three provisos. That is to say, the exception is not
available;-

1. If the accused courts (gives) provocation or uses it as an

excuses for assaulting another or
2. If the act is legally done by a public servant in the exercise of
his legal right as a public servant or
3. If the act is done in the exercise of the right of private defence.

Reasonable man’s Test – K.M. Nanavati.- The Supreme Court in

K.M. Nanavati v. State of Maharashtra has extensively
discussed the law relating to provocation in India and observed
that –

(1) The test of 'grave and sudden provocation' is whether a

reasonable man, belonging to the same class of society as the
accused, placed in the situation in which the accused was placed,
would be so provoked as to lose his self-control.

(2) In India, words and gestures may also under certain

circumstances, cause grave and sudden provocation to an accused
so as to bring his act within the first exception to section 300 of
the Indian Penal Code.

3) 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

(4) The fatal blow should be clearly traced to the influence of

passion arising from that provocation and not after the passion
has cooled down by lapse of time, or otherwise giving the accused
room and scope for premeditation and calculation.

The Court further said:

What a reasonable man will do in certain circumstances depends

upon the customs, manners, way of life, traditional values, etc., in
short, the cultural, social and emotional background of the society
to which an accused belongs. In our vast country there are social
groups ranging from the lowest to the highest state of civilisation.
It is neither possible nor desirable to lay down any standard with
precision; it is for the court to decide in each case, having regard
to the relevant circumstances.

Exception 2: Exceeding the Right of private defence

Exception 2 deals with those cases wherein a person exceeds the

right of private defence. If the excess is intentional, the offence is
murder, if unintentional, it is culpable homicide not amounting to
murder. That is to say, this Exception would apply, if the accused
caused the death of a person without premeditation and that,
when the accused caused the death of the deceased, he had no
intention of causing more harm than was necessary for the
purpose of defence (even if he caused more harm than was
necessary for the purpose of private defence), and that the act
was done in good faith. For instance, as stated by the framers of
the Code:

A man who deliberately kills another in order to prevent that other

from pulling his nose should be allowed to go absolutely
unpunished, would be most dangerous.

In the case of Balbir Singh Balwant Singh v. State of Bihar

the court held that It is a cardinal principle of the law of right of
private defence that the accused must be free from fault in
bringing about an encounter; there must be present an impending
peril to life or of great bodily harm, either real or apparent, such
as to create an honest belief of an existing necessity; there must
be no safe or reasonable mode of escape by retreat; and there
must be a genuine need for taking life. The right of private
defence is purely preventive and not punitive or retributive.

Exception 3: Public Servant exceeding his powers

This exception has been provided to protect a public servant or a

person aiding a public servant, if either of them exceeds the
power given for the advancement of public justice. The exception
clause will not apply if the act is illegal or against public policy
and not authorised by law or the person glaringly exceeds the
power given him by law.
The question whether the public officer did or did not believe in
the legality of his powers is a question of fact to be decided upon
the facts and circumstances of each case.

Exception 4: Sudden fight

This exception applies to cases wherein death is caused in a

sudden fight without premeditation in the heat of passion upon a
sudden quarrel so long as the fight is unpremeditated and sudden,
the accused , irrespective of his conduct before the quarrel, earns
the mitigation provided for in Exception 4 to section 300, IPC
subject to the condition that he did not in the course of the fight
take undue advantage of or act in a cruel or unusual manner.

Essential ingredients :

To invoke the benefit of this clause, death must be caused;

1. In a sudden fight
2. In the heat of passion without premeditation, arising out of
sudden quarrel
3. Without the offenders having taken undue advantage
4. The offender should not act in a cruel or unusual manner
5. The fight must have been with the person killed.

The most important element under this clause is that there should
be a sudden fight. The word ‘fight’ has not been defined in the
code. In ordinary parlance the word ‘fight’ means a combat
between two or more persons, whether with or without weapons.
But a mere verbal exchange of words preceding a stab with a
knife will not invoke the application of Exception 4 to section 300,
IPC. Similarly, When the accused had beaten the son of the
deceased in a quarrel and the deceased came to scold him and
was struck dead, it was held that there was no fight and the act of
the accused did not fall under Exception 4 to Section 300, IPC.
The Exception requires that no undue advantage be taken of by
the other side. It is not possible to say that there is no undue
advantage when a man stabs an unarmed person who makes no
threatening gestures and merely asks the opponent (the accused)
to stop fighting. Then also, the fight must be with the person who
is killed and not with other. In these circumstances the Exception
does not apply.

In the case of Jaman v. State of Punjab, it was held that in case

where a mutual conflict developed and there was no reliable and
acceptable evidence as to how it started and as to who was
aggressor, the situation did not permit the plea of private defence
on either side. This would be a case of sudden fight and would be
dealt with under Section 300, IPC, exception 4.

Exception 5: Consent

The last exception to section 300, IPC deals with causing death by
consent which is commonly known as euthanasia (mercy killing).
The exception is justified on the ground that a man's life is not
only valuable to himself, but also to the family members, state and
society. A man is therefore not entitled to give up his life by
consent; though consent has unquestionably the effect of
mitigating the intensity of crime, it can never exonerate the
offender. For instance: The motives which prompt men to the
commission of this offence are generally far more respectable
than those which prompt men to the commission of murder.

In Dasrath Paswan v. State of Bihar, the accused was a student

of class X. He had failed at the annual examination for three years
in succession. The accused was very much upset and depressed at
these failures. He took his last failure so much to heart that he
decided to end his life and informed his wife, an illiterate woman
of about 19 years of age, of his decision. His wife asked her first
and then kill himself. In accordance with the pact the accused
killed has wife first, but was arrested before he could kill himself.

Held, that the deceased was above the age of 18 years and that
she had suffered death with her own consent. The deceased did
not give the consent under the fear of injury, nor under a
misconception of fact, but voluntarily, and so the case would fall
under Exception 5 to section 300, IPC. Such cases in common law
 will fall under the "suicide pact", and it shall be manslaughter and
not murder.

10. When extortion becomes Robbery

Section 390, IPC defines ‘In all robbery there is either theft or
extortion. 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, of 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.

Extortion is classified as a robbery when the person committing the

offence induces fear in another person and obtains something of
value by causing fear of death or immediate wrongful restraint to
that person or someone else. By doing so, they compel the person
in fear to immediately surrender the extorted item.

Illustration:

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 10,000 rs”.
This is extortion, and punishable as such; but it is not robbery
unless Z is put in fear of instant death of his child.

For instance, let’s consider a scenario: Person A encounters Person

B, and B’s child is present. A takes hold of the child and threatens
to harm the child unless B hands over their purse. B complies and
hands over the purse in fear for the child’s safety. In this case, A
has obtained the purse through extortion by instilling fear of
immediate harm to the child. Therefore, A’s actions constitute
robbery.

However, if A obtains property from B by claiming that their gang

has the child and will cause harm unless B sends them a large sum
of money, this would be considered extortion and punishable.
However, it would not be categorised as robbery unless B is put in
fear of immediate death of their child.
11. Offences relating to religion

The Penal Code in Chapter XV deals with offences relating to

religion. This chapter has been framed on the principle that every
man has full freedom to follow his or her own religion and that no
man is in law justified to insult the religion of another. Everyone
must respect the religious susceptibilities of persons of different
religious persuasions or creeds and desist from hurting the every
man is free to profess his religious sentiments of others. In other
words, every religious feelings of own religion and no man should
insult the religion or class or group. Thus, the deliberate acts
perpetrated by persons of one religious persuasion for the insult or
annoyance of persons of another persuasion have been made
punishable under this chapter.

The five sections (295, 295A, 296, 297 and 298) contained in this
chapter punish defilements (to make unclean or destroy the
pureness) of place of worship, or objects of veneration (worship),
outraging or wounding the religious feelings, and disturbing
religious assemblies. In short, the offences prescribed under the
chapter may be classified into-

1. Damaging or defiling a place of worship or sacred object with

intent to insult the religion of a class of persons (section 295);

2. Trespassing in any place of sepulture or where funeral

ceremonies are performed (section 297);

3. Outraging or wounding the religious feelings of any class

(sections 295A and 298); and

4. Disturbing a religious assembly (section 296, IPC).

Enactment of these sections in the Indian Penal Code to curb the

factors that are responsible for inciting religious animosities is in
accordance with the averred declarations of religious toleration of
the government, which, as such, is necessary to prevent religious
riots and crusades.

Section 295 – Injuring or defiling place of worship

Section 295, IPC makes destruction, damage, or defilement of place
of worship or an object held sacred, with intent to insult the
religion or class of persons.

Ingredients:-

To convict a person under this section the following two

ingredients must exist,

1. The accused must do such an act with the intention of insulting

the religion of any person, or with the knowledge that any class
of person is likely to consider such destruction, damage or
defilement as an insult to their religion.
2. The accused must destroy, damage or defile any place of
worship or any object which is held s sacred by any class of
persons.

Mens Rea – An essential requirement to constitute the offence in

this section. In the case of Jan Mohammed vs Narain Das held
that Mere defilement of a worship is not an offence under this
section without the requisite mens rea.

Section 295 A – Deliberate and Malicious Act

Section 295 A of the Penal code was introduced in the code by

section 2 of the Criminal law (Amendment) Act of 1927 with a
view to punish deliberate and malicious acts intended to outrage
the religious feelings of any class by insulting its religion or the
religious belief.

The Allahabad High Court in Kali Charan Sharma v State of

Uttarpradesh expressly dissented from Rajpaul and held that the
book entitled Vichitra Jiwani, depicting the life of the Prophet
Mohammad, promoted feelings of enmity between Hindus and
Mohammendans and that the offence punishable under Section
153 A.

Section 296 – Disturbing religious assembly

Section 296 punishes disturbance of religious assemblies, which

may extend to one year of imprisonment or with fine or with
 both. This section was enacted to give people a reasonable
opportunity to perform the ceremony in quiet and peace. The
persons assembled are given a right in their collective capacity.
The object of section 296 is to secure freedom and molestation
when people meet for the performance of acts which ordinarily
take places in some quiet spot vested, for the time, in the
assembly exclusively.

Section 297 – Trespassing on Burial Places

Section 297 IPC extends the principle laid down in Section 295
IPC to places which are treated as sacred. It punishes a person
who commits trespass in any place of worship, or any place of
burial, or any place set apart for the performance of funeral
rites. This section is attracted only if the acts are done in
intention of wounding the feelings or with the knowledge that
the. Feelings of any persons are likely to be wounded or that the
religion of nay person is likely to be insulted.

12. Stages in Commission of Crime

Section 511, IPC defines punishments for attempting to commit

offences punishable with imprisonment with life or other
imprisonment.

General Principle – In every crime there are four successive stages

in its commission,

1. Intention to commit the crime

2. Preparation to commit the crime
3. Attempt to commit the crime
4. Accomplishment

Intention – Intention is the direction of conduct towards the

object, chosen upon considering the motive which suggests the
choice. Intention to commit crime is not punishable under Indian
Penal Code, like the penal laws of other countries, because it is
impossible to read mind of man.

Preparation – In general preparation is not punishable because a

preparation apart from its motive would be generally be a harmless
act. It would be impossible in most cases to show that the
preparation was directed to a wrongful end or was done with an
evil motive, or intent, and its not the policy of the law to create
offences that in most cases it would be impossible to bring home
the culprit or which might lead to harassment of innocent persons.

Preparation punishable in exceptional cases - There are

however exceptional cases, wherein the contemplated offence may
be so grave that it would be of the Utmost importance to stop it at
its initial stage and punish it at the preparatory stage itself.

These are preparations to:

(i) collecting arms, etc., with the intention of waging war against
the Government of India (section 122, IPC);

(ii) committing depredation on territories of power or at peace with

the Government of India (section 126, IPC);

(iii) making or selling or being in possession of instruments for

counterfeiting coins or Government stamps (sections 223-235 and
257, IPC);

(iv) possession of counterfeit coin, Government stamp, false weight,

or measure (sections 242, 243, 259 and 266, IPC); and

(v) Making preparation to commit dacoity (section 399, IPC).

If intention and preparation were made punishable, it would be

impossible to prove that the object of an accused was to commit an
offence. For instance, a man might purchase arsenic powder for a
medicinal purpose, not necessarily for committing murder. Again,
the acts of mental determination and that of preparation are too
remote from the completion of a crime.
 Attempt - In other words, attempt is the direct movement towards
the commission of an offence after the preparations have been
made. According to English law, a person may be guilty of an
attempt to commit an offence, if he does an act which is more than
merely preparatory to the commission of the offence; and a person
may be guilty of attempting to commit an offence even though the
facts are such that the commission of the offence is impossible.

Once an act enters into the arena of attempt, criminal liability

begins, because attempt takes the offender very close to the
successful completion of the crime and so it is punishable in law
like the completed offence.

An attempt, creates alarm which of itself is an injury, and the moral

guilt of the offender is the same as though he had succeeded. The
act may be sufficiently harmful to society by reason of its close
proximity to the completed offence classed as a crime. Hence,
unlike civil law, criminal law takes notice of attempts to commit
punishable wrongs and punishes them according to the nature and
gravity of the offence attempted. And if the third stage is
successful, then the crime is completed and the accused will be
liable according to the offence committed by him.

Thus an attempt in order to be criminal need not be the

penultimate act. It is sufficient in law, if there is at present an
intent coupled with some overt act in execution thereof.

13. Deterrent theory punishment (MAAM)

Earlier modes of punishment were, by and large, deterrent in nature.

This kind of punishment presupposes infliction of severe penalties on
offenders with a view to deterring them from committing crime.

The founder of this theory, Jermey Bentham, based his theory of

determine on the principle of hedonism which said that a man would be
deterred from committing a crime if the punishment applied was swift,
certain and severe. This theory considers punishment as an evil, but is
necessary to maintain order in the society.
The deterrent theory also seeks to create some kind of fear in the mind of
others by providing adequate penalty and exemplary punishment to
offenders which keeps them away from criminality. Thus, the rigour of
penal discipline acts as a sufficient warning to offenders as also others.
Therefore, deterrence is undoubtedly one of the effective policies which
almost every penal system accepts despite the fact that it invariably fails
in its practical application. Deterrence, as a measure of punishment
particularly fails in case of hardened criminals because the severity of
punishment hardly has any effect on them. It also fails to deter ordinary
criminals because many crimes are committed on the spur of the moment
without any prior intention or design. The futility of deterrent
punishment is evinced from the fact that quite a large number of
hardened criminals return to prison soon after their release. They prefer
to remain in prison rather than leading a free life in society. Thus the
object underlying deterrent punishment is unquestionably defeated. This
view finds support from the fact that when capital punishment was being
publicly awarded by hanging the person to death in public places, many
persons committed crimes of pick-pocketing, theft, assault or even
murder in those men-packed gatherings despite the ghastly scene.

Suffice it to say that the doctrine concerning deterrent punishment has

been closely associated with the primitive theories of crime and criminal
responsibility. In earlier times, crime was attributed to the influence of
'evil spirit' or 'free-will' of the offender. So the society preferred severe
and deterrent punishment for the offender for his act of voluntary
perversity which was believed to be a challenge to God or religion. The
punishment ought to be a terror to evil-doers and an awful warning to all
others who might be tempted to imitate them. This contention finds
support in Bentham's observation, who said:

"General prevention ought to be the chief end of punishment....An

unpunished crime leaves the path of crime open, not only to the same
delinquent but also to all those who may have some motives and
opportunities for entering upon it…we perceive that punishment inflicted
on the individual becomes source of security for all…Punishment is not to
be regarded as an act of wrath or vengeance against a guilty individual
who has given way to mischievous inclinations, but as an indispensable
sacrifice to the society"

Bentham, however, believed that offenders must be provided an

opportunity for reformation by the process of rehabilitation. From this
point of view, his theory may be considered forward looking as it was
more concerned with the consequences of punishment rather than the
wrong done, which being a post, cannot be altered.

14. Defamation

Section 499 of IPC defines the offence of defamation with the help
of four explanation, ten Exceptions and a number of illustrations.
The sections states when an act of imputation amounts to
defamations, using terms that expressly require mens rea, and
provides defences to a charge of defamation expressly stated in ten
Exceptions attached the section.

As stated by the authors of the Code, defamation consists in its

tendency to cause that description of pain, which is felt by a person
who knows himself to be the object of the unfavourable sentiments
of his fellow creatures and those inconveniences to which a person,
who is the object of such unfavourable sentiments, is exposed.

According to the classical definition of the term defamation, as

given by Justice Cave, in the case of Scott v. Sumpson, defamation
means a false statement about a man to his discredit. In other
words, defamation can be explained as publication of a statement
without justification or excuse of that which is calculated to injure
the reputation of another, tending to bring him into hatred, ridicule
or contempt in the estimate of right thinking members of the
society. For example, charge of any criminal offence, or of fraud,
dishonesty, immorality or dishonest conduct, etc amounts to
defamation.

Ingredients. The offence of defamation consists of the following

essential

(1) Making or publishing of an imputation concerning a person;

(2 ) Such imputation should have been made,-

 (a) by words either spoken or written, or

(b) by signs, or

(c) by visible representations;

The said imputation should have been made with intent to harm or
knowing or having reason to believe that it will harm the reputation
of such person or defame him.

The section is aimed at protection of the reputation, integrity, and

honour of the persons. The definition of the offence contains three
important elements, viz.-

(i) the person,

(ii) his reputation, and

(iii) the harm to reputation of the person with necessary mens rea
(guilty mind).

If the imputation is defamatory per se, necessary means rea will be

presumed. The maker of the statement must knew that it will harm
the reputation of one concerning whom the allegation is made.

Section 500 prescribes punishment for crimes of defamation with

simple imprisonment for a term that may extend to two years , or
fine, or both. The offence is non-cognizable, bailable,
compoundable with the permission of the court, and triable by the
Court of Sessions.

15. Kidnapping

Section 361, IPC makes kidnapping from lawful guardianship of a

minor under sixteen years of age, if a male, and under eighteen
years of age, if a female, an offence. The section also protects a
person of unsound mind from being kidnapped from the lawful
curator. The section is designed to protect minors and persons of
unsound mind from exploitation and to protect the right and
privileges of parents and guardians having the lawful charge or
custody of their wards. Thus, the consent of the parent or guardian
would alone take the case out of the purview of the section.

Ingredients:
 To constitutive an offence under this section, the following:

(1)There must be taking or enticing of a minor, or a person of

unsound mind;

(2) Such minor must be under 16 years of age, if a male, or under

18 years of age, if a female

(3) Taking or entices of bound the keeping of the lawful guardian of

such minor or person of unsound mind; and

(4) Taking or enticing must be without the consent of such

guardian.

In the case of Thakor Lal v State of Gujarat where the accused

was in the habit of visiting a prostitute, and there he met a young
married girl below the age of 16 whom he seduced and then
carried her about and kept her concealed from her husband, the
girl having been already with the prostitute, the accused could not
be held to have taken or enticed her and be convicted of
kidnapping.

Section 363, IPC provides punishment for the offence of kidnapping

from India and from lawful guardianship as defined in section 360
and section 361, IPC respectively. Punishment includes
imprisonment up to seven. Years either rigorous or simple and fine.
The offence is cognizable, bailable, non-compoundable and triable
by a Magistrate first class.

16. House breaking

Section 445, IPC defines House breaking. The term house-breaking

implies a forcible entry into a house. To break a house is used to
mean the removal or setting aside with violence any part of a house
or of the fastenings provided to secure it Though the section
enumerates six ways of breaking a house, they broadly relate to
two modes of house-breaking, viz.,

Firstly, those enumerated in clauses 1 to 3, in which the entry is

effected by means of a passage which is not the ordinary means of
access, and
Secondly, those in which the entry is effected by use of force as
provided under clauses 4 to 6 of the section.

Where a new passage has been created by a thief, and a hole is

made by burglars in the wall of a house but their way is blocked by
the presence of beams on the other side of the wall, the offence
committed is one of attempt to commit house-breaking and not
actual house-breaking.

Different ways of house breaking. The section enumerates six

ways of house breaking, namely:-

(1) Through passage made by the house-breaker himself, or by an

abettor of the house-trespass;

(2) Through any passage not intended by any person other than
himself or by an abettor of the offence;

( 3) By opening any lock;

(4) By using criminal force;

(5) If the accused enters or quits through any passage which he or

any abettor has opened to commit the offence of house-trespass;

(6) By entering or quitting any passage fastened against such

entrance or exit.

Ingredients:

(1) There must be a house-trespass

(2) The person who commits trespass must effect his entrance in
the section.

In all cases of house-breaking there must be an entry or ingress.

The entry of any part of the human body is sufficient to bring an
action under this section.

The breaking open of a cattle-shed in which agricultural

implements are kept amounts to house-breaking. The following acts
are held to be house-breaking under the English law and would
also amount to house-breaking under the Indian Penal Code. For
 instance, the entry effected by removing a glass from a door or
breaking a panel of glass, lifting up a heavy flap of a cellar
(basement) to emerge, etc.

The word 'fastened' implies something more than being closed,

such as changing the shutters or turning them with a rope or
bolting them or locking the door. An entry of an accused into a
house by merely pushing the shutters of the door does not
constitutes the offence of house breaking.

17. Custodial death (MAAM)

18. When can the right of private defence of the body extend to
the causation of death?

Right of Private defence of body to cause death – Section 100

justifies the killing or of causing any other harm to assailant under
the restrictions mentioned in Section 99, if the offence which
occasions the exercise of the right be of any description
enumerated in clause 1 to 7 of Section 100, IPC namely an assault:

1. Causing the apprehension of death

2. Causing the apprehension of grievous hurt
3. With the intention of committing rape
4. With the intention of gratifying unnatural lust
5. With the intention of kidnapping or abducting
6. With the intention of wrongfully confining a person under
circumstances which may give apprehension that he will be
unable to have recourse to the public authorities for his redress
7. Throwing or administering acid causing reasonable
apprehension that it will result in grievous hurt.

Ingredients-

To invoke section 100, IPC, four conditions must exist, viz.,

firstly, that the person exercising the right of private defence must
be free from fault in bringing about the encounter;

secondly, there must be present an impending peril to life or of

great bodily harm, either real or so apparent as to create an honest
belief of exceeding (great) necessity;
thirdly, there must be no safe or reasonable mode of escape by
retreat; and

fourthly, there must have been a necessity for taking the life.

In the case of Bhaja Pradhan v State of Orissa, the deceased had

stolen a goat from the cattleshed of the accused. The accused
chased him to recover his property and, in the process of
recovering it, assaulted him without knowing that he had struck
vital body parts. Held, the accused exceeded the right of private
defence.

In the case of Arjun v. State of Maharashtra, The Supreme Court

held that right of private defence extending to voluntarily causing
of death is available only if accused shows that there were
circumstances giving rise to reasonable grounds for apprehending
that either death or grievous hurts would be caused to him.
Accused has to place necessary material on record either by
himself adducing positive evidence or by eliciting necessary facts
from prosecution witnesses - Degree of proof however is not
beyond reasonable doubt but mere preponderance of probability.

Right of private defence extends to the extent of causing

death when daughter was being sexually assaulted - In
Yeshwant Rao v. State of Madhya Pradesh, the deceased,
Lakhan Singh was engaged in a sexual intercourse with the
daughter of the appellant. On witnessing the same, the appellant
assaulted the deceased on the head with a spade. This resulted in
his death due to the rupture of liver which could be either by falling
on a hard object, or as a result of the blow given by the appellant.

The trial court convicted the appellant under section 325, IPC for
causing hurt and the High Court confirmed the conviction. In
appeal, the Supreme Court set aside the conviction and held that
the right of private defence was fully applicable to the facts of the
case vide sections 96, 97 read with section 100 clause (3) of IPC.
Whether it was case of sexual intercourse with or without consent,
the fact remains that the daughter was of fifteen years of age and,
therefore the act of deceased would amount to rape within the
meaning of section 375, clause (6) of the IPC).
12 MARKS (LONG ANSWER)

1. Explain different theories of punishment

2. Discuss right to private defence as laid down in the Indian penal
code in detail.

Sections 96 to 106 of the Penal Code state the law relating to

the right of private defence of person and property. The
provisions contained in these sections give authority to a man to
use necessary force against an assailant or wrong-doer for the
purpose of protecting one frown body and property as also
another's body and property when immediate aid from the State
machinery is not readily available and in so doing he is not
answerable in law for Self-help is the first rule of criminal law.
The right of private defence is absolutely necessary for the
protection of one's life, liberty and property. No doubt, it is the
primary duty of the State to protect life and the property of the
individuals, but no State, no matter how large its resources
might be, can depute a policeman to watch the activities of each
and every individual and protect them against the mischievous
acts of criminals. There may be situations wherein help from the
State authorities cannot be obtained in order to repel an
unlawful aggression, either because there is no time to ask for
such help, or for any other reason. To meet such exigencies the
law has given the right of private defence of body and property
to every individual.

Right of private defence - The law of private defence is based

on two cardinal principles, viz.,

(i) Everyone has the right to defend his own body and property,
as also another's body and property.

(ii) The right cannot be applied as a pretence for justifying

aggression for causing harm to another person, nor for causing
more harm than is necessary to inflict for the purpose of
defence.

The right is essentially of defence not of retribution. As pointed

out by Russell in Law of Crimes.

Scope - Section 96 states the general proposition, that 'nothing

is an offence which is done in the exercise of the right of private
defence. However, the right is not absolute and is subject to
restrictions. The subsequent sections 97 to 105 state the limits
within which the right can be exercised, the extent of injury that
can be inflicted and against whom these rights can be exercised.
The right of private defence is a high prized gift granted to the
citizens to protect themselves by effective self resistance against
unlawful aggression. No man is expected to fly away when he is
attacked. He could fight back and when he apprehends death or
grievous hurt he could see that his adversary is vanquished
without modulating his defence step by step. Faced with a
dangerous adversary, no man can possibly act with a detached
reflection and under such circumstances if he travels a little
beyond the limit, the law protects him and hence courts should
not place more restrictions on him than the law demands.

The right of private defence will completely absolve a person

from all guilt even when he causes the death of another person
in the following situations, viz.;

(i) If the deceased was the actual assailant, and

(ii) If the offence committed by the deceased which occasioned

the cause of the exercise of right of private defence of body and
property falls within anyone of the six or four categories
enumerated in sections 100 and 103 of the Penal Code
respectively, or was an assault reasonably causing the
apprehension of his death, as explained in section 106 of the
Code.

The right of private defence has been elaborately discussed in

sections 97 to 106 from two aspects, namely, defence of the
body and defence of property. Sections 97, 98 and 99 are of a
general nature and deal with both aspects of right to the
defence of body and property.

On the other hand, (i) sections 100, 101, 102 and 106 are
concerned with defence of body and (ii) sections 103, 104 and
105 with defence of property.

In the case of Jagdish v. State of Rajasthan (1979), the

Supreme Court while referring sections 96 and 99 of IPC and
section 105 of the Evidence Act has evolved following set of
 principles to be observed when plea of self-defence is raised in a
given case:

1) The right of private defence is essentially a defensive right

circumscribed by the governing statute, i.e., IPC, available
only when the circumstances clearly justify it. It should not
be allowed to be pleaded or availed as a pretext for a
vindictive, aggressive or retributive purpose of offence. It is a
right of defence expected to repel unlawful aggression and
not as a retaliatory measure. A right to defend does not
include a right to launch an offensive, particularly when the
need to defend no longer survived.

3. Write a detailed note on Defamation with six exceptions

Section 499 defines the offence of defamation with the help of

four explanation, ten exceptions. The sections states when an
act of imputation amounts to defamations, using terms that
expressly requires mens rea and provides defences to a charge
of defamation expressly stated in ten exceptions attached to the
sections.

According to the classical definition of the term defamation, as

given by Justice Cave, in the case of Scott v Sumpson,
defamation means a false statement about a man to his
discredit. In other words, defamation can be explained as
publication of a statement without justification or excuse of that
which is calculated to injure the reputation of another, tending
to bring him into hatred, ridicule or contempt in the estimate of
right thinking members of the society. For example: charge of
any criminal offence or of fraud, dishonesty, immorality or
dishonest conduct, etc amounts to defamation.

INGREDIENTS:
1. Making or publishing of an imputation concerning a person.
2. Such imputation should have been made-
1) By words
2) By signs
3) By visible representations
3. The said imputation should have been made with intent to
harm or knowing or having reason to believe that it will harm
the reputation of such person or defame him.

The section is aimed at protection of the reputation, integrity,

and honour of the persons. The definition of the offence
contain three important elements:

i) The person
ii) His reputation
iii) The harm to reputation of the person with necessary mens
rea (guilty mind)

The offence is non-cognizable, bailable, compoundable, with

the permission of the court and triable by the Court of
Sessions.

Section 499 provides ten exception to the charge of

defamation when a statement to the charge of defamation
when a statement would not attract penalty. These are based
on the ground of truth, good faith, or public interest, and
strike a balance between freedom of speech and expression
guaranteed under Article 19 (1) (A) of the constitution and
the individuals right to reputation. The burden of proof of
the exception is on the accused.

First Exception – Imputation of truth in public interest

for public good:-

To invoke this exception two conditions must be proved

namely,

i) That the alleged imputation regarding the complainant true

and
ii) That its publication was for the public good

If any one of the two conditions are not satisfied Exception 1

would not be attracted. So though the truth of a defamatory
matter is a complete defence to an action for damages in a
civil suit, it is not so in a prosecution for the crime of
defamation.
In the case of Chamanlal v State of Punjab (1970) Where
a person makes a comment upon the conduct of a public
servant and it is for the public good, no action will lie against
him so long as the comments are honestly made and there is
no wilful misrepresentation. No amount of truth will justify a
libel unless its publication was for the public goods. The
question of public good has to be considered from the point of
view of the general public as contrary to that of an individual.
The onus of proving the two ingredients is on the appellant.
Public good is a question of fact and good faith has also to be
established as a fact.

Second Exception – Public conduct of Public servants:-

Exception 2 deals with criticism of public servants. Where an

editor of newspaper is prosecuted for defamation under
Section 500, IPC for publishing some defamatory statement
complaining about the conduct of the jail superintendent
towards the prisoners and about the defective sanitary
fittings and medical arrangements in the jail, the accused
must show that he the opinion expressed by him was confined
to the character of the official concerned so far as it appeared
in his conduct in the discharge of his public function.

Third Exception – Conduct of any person touching any

public question:-

While the second exception is confined to the criticism of

public servants, the third Exception is confined to the
criticism of public servants, the Third exception to the section
embraces a much wider area of fair comment by providing
that it is not defamation to express any opinion whatsoever
respecting the conduct of any persons touching any public
question and respecting his character.

This exception thus has a positive as well as negative aspect.

The positive aspect is concerned with those situations
wherein the exception applies, and the negative aspect with
the limitations to which the exception is subjected to. The
conduct of publicists who take part in politics or other
matters concerning the public can be commented on in good
faith.
Fourth Exception – Publication of Reports pf
proceedings of Courts:-

The fourth exception provides to Section 499 provides that it

is no defamation to publish a substantially true report of the
proceedings of. a court or of the result of any such
proceedings. The explanation to the exception provides that a
Justice of the Peace or other officer holding an inquiry in open
court, preliminary to a trial in a court of justice, is a court
within the meaning of the above exception.

Annanda Prasad vs Manotosan Roy it was held that it is

not necessary under this exception that the proceedings of
the court should be published continuously. The publication
need not to be true by word, but should give a substantially
true account of the proceedings. Good faith is not an
ingredient of the exception.

Fifth Exception – Merits of a case decided in Court or

comduct of witnesses:-

This exception deals with comments expressed on the merits

of the a case which has been already decided in the court or a
comments relating to the conduct of parties or witness any
such case. It’s not defamation to express in good faith any
opinion whatever respecting-

a) The merits of any case, civil or criminal, which has been

decided by a court,
b) The conduct of any person as a party, witness, or an agent
in any such proceedings
c) The character of such person, so far as his character
appears in that conduct and no further.

Sixth Exception – Merits of public performance:-

This exception deals with literary criticism of public

performance submitted to its judgment. It covers criticism of
books published on literature, art, painting, speeches made in
public, acting, singing, etc. the criticism should be fair and
made in good faith. An opinion expressed in good faith
respecting the merits of any performance which its author
has submitted to the judgment of the public is exempt from
 criminal liability. Review of a published work will come under
this exception.

In Emperor v. Abdul Wadood Ahmed, it was emphasised

that the responsibility of the critic of a public performance,
where he seeks to rely on the defence of fair comment
underlying this exception is to be judged by the effect which
his comment is calculated to produce, and and not by his
intention. The object of the Sixth Exception is that the public
should in its evaluation of a performance be aided by a
comment on that performance and the comment must make it
clear that the judgment of the public is sought to be added
only on such evidence as is supplied by the public
performance.

Section 500 defines punishment for crimes of defamation with

simple imprisonment for 2 years and fine or both.

4. Discuss in detail ‘Actus non facit reum nisi mens sit rea’

The Latin expression ‘actus non facit reum nisi mens sit rea’,
loosely translated as “an act does not render a man guilty of a
crime unless his mind is equally guilty,” expresses a foundational
concept in criminal law. This means that proving criminal
culpability necessitates not only the presence of the actus
reus and the mens rea, but also the coincidence or concurrence
of the mens rea with the conduct that creates the actus reus.

The Supreme Court of India while deciding on the case of C.K.

Jaffer Sharief vs State (Thr C.B.I.) (2012) had observed that an
individual’s criminal culpability would be attached if they broke
the law. The norm, however, is not absolute, and it is subject to
the constraints set out in the Latin maxim actus non facit reum
nisi mens sit rea. It means that there can’t be a crime without a
criminal mind. To hold someone criminally responsible, it must
be proven that their actions resulted in an illegal act and that
their actions were accompanied by a legally blameworthy
mental attitude. As a result, every crime has two components, a
physical element and a mental aspect, i.e. actus reus and mens
rea respectively.

Mens rea is the source of the Latin maxim actus non facit reum
nisi mens sit rea. Actus non facit reum nisi mens sit rea clarifies
the application of mens rea in criminal law. It asserts that a
person is only guilty of committing a crime if the conduct is done
with the purpose to commit a crime. This maxim is used to judge
whether certain conduct is illegal or not. Crimes done with a
particular intent, rather than unforeseen or inadvertent acts, are
subject to harsher penalties. However, no violation of the law
may go unpunished.

The origins of this adage are yet unknown. Pollock and Maitland
tracked the earliest and most distant reference to this maxim to
St. Augustine, but they were unable to provide a sufficient
context for the maxim discovered.

Actus non facit reum nisi mens sit rea under the Indian
Penal Code, 1860:

The maxim actus non facit reum nisi mens sit rea has been
integrated into the Indian Penal Code, 1860 in two basic ways:

1. Through express inclusion of the required state of mind

(mens rea) in the definition of an offence.
2. Through ‘General Exceptions’ enumerated in Chapter 5 of the
Code, some of which, such as mistake of fact, accident,
infancy, and insanity, deny the existence of mens rea.

Exceptions of actus non facit reum nisi mens sit rea:

In certain situations, the law can create offences based only on

the physical act, disregarding ‘the state of mind’ of the person
committing the crime. These situations are likewise punished
and are considered exceptions to the general rule of actus non
facit reum nisi mens sit rea. In basic terms, a crime for
which mens rea is not a necessary criterion is an exception to
this rule.

While hearing the case of Ranjit D. Udeshi v. the State of

Maharashtra (1964), the Supreme Court of India observed “We
do not accept the notion that the prosecution must establish
that the person who sells or holds for sale any obscene object
knows that it is obscene before he can be declared guilty”. As a
 result, mens rea is less significant than the act committed. If
obscene material is discovered in a person’s possession, he will
be prosecuted under Section 292 of the Indian Penal Code,
1860. It is not necessary to show his purpose or awareness of
the obscene material.

5. Explain in detail the offence of kidnapping

Sections 359 to 369 of the Code have made kidnapping and

abduction punishable with varying degree of severity according
to the nature and gravity of the offence. The underlying object of
enacting these provision is to secure the personal liberty of
citizens, to give legal protection to children of tender from being
abducted or seduced for improper purposes to children of
tender rights of parents and guardians over their wards for
custody of upbringing.

Kidnapping:- The word 'Kidnapping' has been derived from the

word 'kid" 'steal'. Thus, kidnapping literally means child-
meaning 'child' and 'napping', to 'steal' stealing. And the word
kidnapper originally (during the 17th century) meant to signify
one who stole children and others to provide servants and
labourers for the American plantations.

The offence of kidnapping is an aggravated form of wrongful

confinement and is, therefore, an offence in which all the
elements of that offence are necessarily present. It is, however,
confinement of such a serious form that the Code treats it as a
distinct offence. But kidnapping does not include the offence of
wrongful confinement or keeping in confinement of a kidnapped
person.

Kinds of kidnapping: Section 359, IPC classifies kidnapping

under two categories, viz.,

(1) Kidnapping from India (section 360, IPC), and

(2) Kidnapping from lawful guardianship (section 361, IPC).

Kidnapping under the Code is not confined to child-stealing. It

has been given a wider connotation as meaning carrying away of
a human being against his or her consent, or the consent of
some person legally authorised to accord consent on behalf of
such person. (If a male of 16 and if a female of 18 years or an
insane.

Section 361, IPC makes kidnapping from lawful guardianship

of a minor under sixteen years of age, if a male, and under
eighteen years of age, if a female, an offence. The section also
protects a person of unsound mind from being kidnapped from
the lawful curator. The provisions contained in the section 361,
IPC correspond to section 55 of the (English Statute) Offences
Against the Person Act, 1861 which makes abduction of an
unmarried girl a statutory offence. The section is designed to
protect minors and persons of unsound mind from exploitation
and to protect the right and privileges of parents and guardians
having the lawful charge or custody of their wards. Thus, the
consent of the parent or guardian would alone take the case out
of the purview of the section.

Ingredients:

To constitutive an offence under this section, the following

conditions must exist viz.,-

(1) There must be taking or enticing of a minor, or a person of

unsound mind;

(2) Such minor must be under 16 years of age, if a male, or

under 18 years of age, if a female

3)Taking or enticing must be out of the keeping of the lawful

guardian of such minor or person of unsound mind;

(4) Taking or enticing must be without the consent of such

guardian.

Section 362 - According to section 362, abduction takes place

when a person by force compels, or by any deceitful means
induces another person, to go from any place. Abduction pure
and simple is not an offence. It is an auxiliary act not punishable
in itself, but when it is accompanied by a certain intention to
commit another offence, it per se becomes punishable as an
offence.
In the case of Abdul Sathar v Emperor the court has defined
Abduction in common language means the carrying away of a
person by fraud or force.

Section 363 – Punishment for the offence of kidnapping from

India and from lawful guardianship as defined in section 360 and
section 361 IPC. Punishment includes seven years either
rigorous or simple and fine.

Section 363 A – Kidnapping for begging – The section aims

at punishing unscrupulous persons who have been known to
organise begging as industry and fatten on the ill-gotten gains
obtained from the practice of begging. It is. Asocial evil and the
present section is intended to punish the miscreants who engage
and exploit children for the purpose of begging.

Ingredients:-

1. The person kidnapped is minor

2. The kidnapper is not the lawful guardian
3. Such kidnapper obtains the custody of the minor
4. Such kidnapper person is employed or used for purpose of
begging
5. The kidnapper has maimed the minor kidnapped

Punishment of 10 years either rigorous or simple or fine.

Section 364 – Kidnapping or abducting in order to Murder
– Section 364 – Section 368, IPC provide for enhanced
punishment in case of aggravated forms of kidnapping or
abduction.

Section 364, IPC punishes two kinds of kidnapping and

abduction which expose the kidnapped or abducted person to
danger of losing his life :

1. Kidnapping or abducting any person in order that such

person may be murdered
2. Kidnapping or abducting any person in order that such
person may be so disposed of as to be put in danger of being
murdered.

The section provides for the punishment of a specific offence

namely kidnapping or abduction with the object of murder and it
is intended as an indirect method of punishing persons who are
suspected but not proved to have committed murder.
Punishment may extend to imprisonment for life and rigours
upto 10 years and fine.

Section 365 – Kidnapping to confine – This section punishes

kidnapping or abduction with intent to secretly and wrongfully
confine a person. The gravity of the offence under this section
rests in the intention to keep the person in wrongful
confinement and secretly. An offence under this section may
pertain to a child who cannot walk. In the case of Roshan vs
State is was highlighted that it may also encompass a woman
forcibly dragged out of her house and kept locked up in a room
in the house of the accused.

Punishment may extend upto 7 years and fine.

Section 366 – Kidnapping, abducting or inducing a woman

to marry – This section makes kidnapping and abduction of a
woman with intention of forcibly marrying or having sexual
intercourse with her a cognizable offence. The question whether
a woman was kidnapped or not depends upon her age and the
presence of other circumstances.

Ingredients:
1. Kidnapping or abducting an woman
2. Such kidnapping or abducting must be :

a) With intent that the woman may be compelled or knowing

it to be likely that she will be compelled to marry any
person against her will
b) In order that she may be forced or seduced to illicit
intercourse or knowing it to be likely that she may be
forced or seduced to illicit intercourse
c) By criminal intimidation or abuse of authority or by
compulsion inducing any woman to go from any place with
intent that she will be forced or seduced to illicit
intercourse with some person.
Mere finding that the accused abducted the woman is not
sufficient for sustaining conviction under Section 366, IPC.
Further findings are required in order to attract the charge of
Section 366,IPC.
In the case of Abdul vs Emperor it was held that a man who
commits sexual intercourse with a girl in a field near her own
home, with no intention of taking her away with him, is not
guilty of an offence under this section.

Punishment may extend to ten years and fine.

Section 367 – Kidnapping with intention of inflicting

grievous hurt, slavery etc – This section punishes the
kidnapping or abduction of a person in order that such
person may be subjected or may be so disposed of as to be
put in danger of being subject to grievous hurt or slavery. In
fact the section is an aggravated form of offence of
kidnapping or abduction and provides for enhanced
punishment that may extend upto 10 years of imprisonment
and fine.

Ingredients:-
1. The accused kidnapped or abducted by a person
2. The accused did so in order to subject him to grievous
hurt, slavery, or for gratification of the unnatural lust of
any person
3. The accused knew that the said person is likely to be
subjected to grievous hurt or likely to be disposed of as
being subjected to slavery or unnatural lust.

Section 368 – Wrongfully concealing or confinement of

Kidnapped person – This section punishes concealment or
keeping in confinement of kidnapped or abducted person. To
attract the section the accused must be shown to have
knowledge of the fact of kidnapping or abducted person was
wrongfully confined. Consent of the person so confined will
absolve the accused under this section.

Ingredient:
1. The person in question was kidnapped or abducted
2. The accused knew that the said person was kidnapped or
abducted
3. The accused wrongfully confined or concealed the said
person who was kidnapped or abducted.

Section 369 – Kidnapping child under 10 years – This

section punishes those who kidnap or abduct a child below
 ten years of age with intent to steal any property from the
person of such child.

Ingredient:
1. The accused kidnapped or abducted a child below 10 years
of age.
2. The accused intended to take dishonestly some moveable
property from the person of the child kidnapped, or
abducted.

Punishment may extend to seven years of imprisonment and

fine.

6. Discuss various offences relating to marriage

The offences relating to marriage can be demonstrated in four

head:
Mock Marriage (493 and 496 IPC)
Bigamy (Section 494 and 496 IPC)
Adultery (Section 497 IPC)
Criminal elopement (Section 498, IPC)

Mock marriage (Section 493) – This section punishes the offence

committed, when a man, either married or unmarried, induces a
woman to become as he thinks, his wife, but in realit y concubine.
In other words, section 493, IPC only punishes a man for obtaining
the body of a won by deceitful assurance that he is her husband. A
case under this section can also be covered under Section 375
clause 4 IPC amounting to rape by consent obtained by inducing the
women to believe that she is lawfully married to the man having
sexual intercourse with her when in fact it is not so.

Ingredients:-
i) Firstly, when a man deceitfully induces a woman to have sexual
intercourse with him, and
ii) Secondly, causing her to believe that she is lawfully married to
him.

In the case of Moideen kutty Jaji v Kuhikoya (AIR 1987 ker

184) Where the allegation was that though they were not husband
and wife, they had sexual union during late hours in the night for a
pretty long time and there was only a promise to marry in future,
and the further allegation was that one day they went for registering
the marriage but the man ran away from and even thereafter she
submitted herself to him regularly, for liaison, the facts could not at
all attract section 493, IPC.

Bigamy (Section 494) – According to Section 494 any person,

who having a husband or wife living marries another in any case in
which such marriage would be void by reason of it taking place
during the life time of such wife or husband, is guilty of bigamy and
punishable for a term of imprisonment which may extend to seven
years and fine. The section makes bigamy an offence in case of all
persons living in India irrespective of religion of either sex, namely
Hindus, Christians, Parsis except Muslim males.

The scope of this section is wide. It is applicable to both husband

and wife. The offence is non-cognizable, bailable. Compoundable
and triable by a Magistrate of the first class.

In the case of Muslim personal law permits polygamy for males (up
to four wives) but insists on monogamy for females. Thus a Muslim
male marrying a fifth wife during the continuance of four earlier
marriages and a muslim wife marrying during the subsistence of an
earlier marriage are punishable under section 494, IPC.

Ingredients:-
i) That the accused spouse had already been married
ii) That while the first marriage was subsisting, the spouse
contracted a second marriage
iii) That both the marriages have been valid in the sense that the
essential ceremonies, such as Dutta Homa and Saptapadi
required by the personal laws governing the parties had been
duly performed (in case of Hindus).

Section 494 exempts a person for bigamy in the following

situation:-

1. When the first marriage has been declared void and annulled
by the court of competent jurisdiction.
2. When the husband or wife has been continually absent for
period of seven years or more
3. The absent spouse must not have been heard of by the other
party as being alive within that period
4. The party marrying must inform of the fact of absence to the
person whom he or she marries
5. When a valid divorce has taken place according to the law of
the spouse.

This section has no application to cases where a second

marriage is allowed by the law or custom governing the parties
as stated in the case of Priya Bala Ghosh v. Suresh Chandra
Ghosh. For instance as held by the Supreme court in Suraj
Mani Stella v. Durga Charan Hansdoh, wherein parties are
tribal Hindus, but governed by their tribal customs and usage in
the matter of marriages where alleged, custom in the tribe
which mandated monogamy as a rule is not sufficient to convict
a person for bigamy under section 494, IPC unless there is
specific pleading, evidence and proof alleged custom making
the second marriage void during the subsistence of the first
marriage.
 Conversion of Religion doesn’t give license to Commit
Bigamy: Sarla Mudgal
The Apex Court in 1995 in Sarla Mudgal v UOI has ruled that
change of religion doesn’t permit a person to defeat the
provisions of law and give license to commit Bigamy. The court
held that when one or other spouse i.e. husband or wife
renounces his or her religion and embraces other (e.g Islam
which permits polygamy) in order to marry again during
lifetime of the former spouse section 494, IPC is attracted.

Adultery (Section 497 IPC) – This section provides punishment

for adultery. Adultery is a invasion on the right of the husband over
his wife. In other words, it is an offence against the sanctity of
matrimonial home and an act which, is committed by a man. It is an
anti-social and illegal act. It consists in having carnal knowledge of
a married woman with knowledge of that fact, without the consent
or connivance of her husband. In the case of Munir v. Emperor,
(1925) that to constitute adultery, sexual intercourse is necessary
ingredient.

Ingredients:-
i) Sexual intercourse must be committed with the wife of another
man
ii) The person must have knowledge or has the reason to believe
that the woman is the wife of another man
iii) Such sexual intercourse must be without the consent or
connivance of the husband
iv) Such sexual intercourse must not amount to the offence of
rape.

Adultery under Section 497, IPC is limited in scope as compared

to the misconduct of adultery as understood in divorce
 proceedings. As stated earlier, the offence is committed only by a
man who has sexual intercourse with the wife of another man and
without the latter’s consent or connivance. The wife is not
punishable for being an adulteress, or even as an abettor of
offence, despite being a consenting party to the crime. She as an
“Abettor” will get away with it.

In the case of Yusuf Abdul Aziz vs State of Bombay, held that

section 497 IPC is not ultra vires. It doesn’t offend article 14 & 15
of the constitution on the ground that the wife with whom adultery
committed is saved from the purview of section 497 and is not
punished as an abettor. Sex is a sound classification accepted in
Article 15 (3) of the Constitution.

Criminal elopement (Section 498, IPC) – Section 498, IPC deals

with the offence of criminal elopement. The provision of 498, are
intended to protect the rights of the husband and not that of the
wife. The gist of the offence under section 498 is the deprivation of
the husband of his custody and his proper control over his wife
with the object of having illicit intercourse with her by the act of
some blandishment or allurement whereby her consent so to stay
away is obtained by the offender. Use of physical force upon the
woman is not an ingredient of the offence.

Ingredients:-
i) Taking or enticing away or concealing or detaining the wife of
another man from a) that man, or b) any person having care of
her on behalf of that man
ii) Knowledge or reason to believe that she is the wife of another
man
iii) Such taking, concealing or detaining must be with the intent
that she may have illicit intercourse with any person.
 In Alamgir v State of Bihar, stated the gist of the offence
under this section is the derivation of the husband of his custody
and proper control of his wife with the object of the accused
having illicit sexual intercourse with any person.

‘Enticement’ means some kind of persuasion or allurement.

Before a person can be held guilty under this section on the
ground of enticement, it must be proved that the enticement of
the wife of another was from the control of her husband.

7. Write a brief note on General Exceptions.

Chapter IV of the Indian Penal Code deals with exceptions to

criminal liability. These exceptions cover different acts that, under
specific circumstances mentioned in Sections 76 to 106, are not
considered offences.

Here are the 7 general exceptions in IPC:

1. Mistake of fact (Sections 76, 79).

2. Judicial acts (Sections 77-78).
3. Accident (Section 80).
4. Absence of criminal intention (Sections 81-86, 92-94).
5. An act is done by consent (Sections 87-91).
6. Trifling Act (Section 95).
7. Private defence (Sections 96-106).

The accused person has to prove that their case falls within one of
these exceptions. The court assumes the absence of such
circumstances unless proven otherwise. On the other hand, the
prosecution has the responsibility to prove the accused’s guilt.

Section 76 – 79 – Mistake of fact as defence

Mistake of fact or ignorance of fact under common law is generally

a defence, provided that it was one of fact, and provided that had
the facts been as the accused supposed, he would have had a
defence to the crime with which he is charged. That is the ethical
 principle has long been expressed in criminal law is apparent from
an early seventeenth century case, R. v. Levett. The accused was
held not to have been guilty of unlawful homicide, when he killed a
woman (a friend of his servant) who was hiding behind a curtain in
his house, mistakenly believing her to be a burglar. This may be
called a case of ‘pure mistake’ because he did it ignorantly with no
intention of killing the woman, but rather of killing a burglar. In the
case of Reg. v. Frederick Jones it was highlighted that Mistake
may give rise to the defence of an accident, as when a gun being
handled by a person who mistakenly believes it to be unloaded,
goes off and kills someone, but the person is liable for the crime of
negligence.

Section 77 – 78 – Judicial Act

Section 77 and 78 of the Penal code gives protection to judges and

to those who carry out their orders against criminal process just as
the Judicial Officers Protection Act exempts judicial officers from
civil liability. The role of Judges and those engaged in performing
judicial functions is such that special protection as regards their
official acts and conduct are absolutely necessary for the sake of
fearlessness and independence of administration of justice.
Protection to judges by securing them immunity from civil liability
and criminal prosecution and affording them security of tenure is
not a special feature under our law, but is accorded in all
democratic countries of the world to maintain an independent
judiciary.

Section 77 extends special immunity to a judge against criminal

prosecution with respect to acts done by him judicially in discharge
of his official duty.

i) The act done must have been done by a judge in discharge of his
official duty
ii) The act done must be within his jurisdiction
iii) The act done must performed in good faith

The scope of immunity is so wide that a judge is protected under this

section, even if exceeds the jurisdiction granted to him by law and
prosecutes a man for committing the alleged offence, provided the
act was done in good faith and under the official transaction. In
Meghraj v. Zakir Hussain, the Allahabad High court went to
extent saying:
No person acting judicially is liable for an act done or ordered to be
done in the discharge of his official duty within the limits of his
jurisdiction. In such a case, the question whether he acted in good
faith does not arise.

Section 80 - Accident

Section 80 gives statutory recognition to the common law doctrine of

mens rea, that there can be no crime without a criminal intention.
Section 80 therefore refutes criminal liability in respect of accidental
acts. A man is not criminally responsible for unintended and
unknown consequences of his lawful acts performed in a lawful
manner, by a lawful means, with proper care and caution. That is to
say, an act is not criminal, if it is done with no criminal intention or
knowledge, merely by reason of any harm which it might cause
accidentally to any person.
To avail of the benefit of exemption from criminal liability under this
section it must be proved that the act was done by:

1. Accident or misfortune
2. Without any criminal intention or knowledge
3. In a lawful manner
4. By lawful means
5. With proper care and caution

For instance: if A while shooting a jackal in the jungle with an

unlicensed gun, by accident kills a man who was hiding behind a
bush, he would not be liable for murder. The fact that A used an
unlicensed gun would not preclude him from claiming the protection
of Section 80 because the circumstances under which the act was
done were such as to negate the existence of mens rea this was held
in State v. Rangaswami.
(Sections 81-86, 92-94) - Absence of criminal intention

Criminal intention refers to the purpose or intention of committing

an act prohibited by criminal law without any valid justification or
excuse. However, certain acts may appear criminal but are
performed without any criminal intent. It is fair that such acts
should not be punished since they lack mens rea, which is the
mental element of criminal responsibility.

There are seven such acts mentioned in Secs. 81-86 and 92-94:
 An act done to avoid other harm (Sec. 81) – Grants immunity to
man from criminal charge with respect to acts committed under
compelling circumstances forced by necessity.

 Act of a child (Secs. 82-83) – Section 82 and 83 of the Penal code

grant immunity to an infant below particular age from criminal
responsibility. Section 82 confers immunity on a child under seven
years and section 83 grants immunity on child above 7 years and
under twelve of immature understanding.

 Act of lunatic (Sec. 84) – Section 84 states that unsoundness of

mind is a defence of a person to a criminal charge on the theory
that ‘one who is insane has no mind and hence cannot have the
necessary mens rea to commit a crime’.

 Act of an intoxicated person (Secs. 85-86) – The Penal Code in

Section 85 & 86 has crystalised in tabloid form the provisions
relating to acts committed by a person by reason of intoxication in
mitigating the rigorous of the law.

In Basdev v. State of Pepsu (AIR 1956 SC 488), it was held that

drunkenness is generally neither a defence nor an excuse for a
crime. By law, an intoxicated person is presumed to have the same
knowledge as a sober individual. However, the accused’s intention
must be determined from the circumstances of the case, taking into
account the degree of intoxication.

 Bona fide act for another’s benefit (Sec. 92) - Under Section 92 of
the Indian Penal Code, an act is not considered an offence if it
causes harm to a person for whose benefit it is done in good faith,
even without that person’s consent, under emergent
circumstances. This provision protects individuals who act in the
best interests of others in urgent and life-threatening situations.

 Communication made in good faith (Sec. 93) - Under Section 93 of

the Indian Penal Code, any communication made in good faith to a
person for their benefit is not considered an offence, even if it
causes harm to that person. This provision protects individuals who
communicate information honestly and with good intentions, even
if the outcome is unfortunate.

 An act is done under compulsion or threat (Sec. 94) - Under Section

94 of the Indian Penal Code, if a person commits an offence under
compulsion or threat, they may be excused if the threat is to cause
instant death. However, there are certain limitations to this
provision. The person under threat cannot commit murder or an
offence against the State that is punishable by death, such as
treason, to avail themselves of the benefit of Section 94.
Additionally, the person must not have voluntarily or reasonably
placed themselves under such constraint due to a fear of harm
short of instant death.

An act is done by consent (Sections 87-91) –

Sections 87-91 of the Indian Penal Code outline the circumstances

in which an act done with the victim’s consent will be excused or
not considered an offence. Consent is a crucial factor that
distinguishes between innocence and criminal liability in various
situations.

Section 90 of the Indian Penal Code specifies instances where

consent is not considered valid. These include:

 Consent is given under fear of injury or misconception of fact.

 Consent is given by a person who cannot understand the
nature and consequences of the act due to unsoundness of
mind or intoxication.
 A person under the age of 12 gives consent.

It is important to note that mere submission by a person who does

not understand the nature of the act is not considered valid
consent. Consent and submission are not synonymous.

Trifling Acts/ Acts Causing Slight Harm - Section 95:

The sixth general exception in IPC is laid down in Section 95. This
exception is based on the principle of de minimis non-curat lex,
which means that the law does not concern itself with trifles or
minor matters.

According to Section 95, if a person causes harm, even

intentionally or knowingly, and that harm is so slight that a person
of ordinary sense and temper would not complain about it, then it is
not considered an offence.
 This section applies to acts that result in negligible or trifling harm,
including accidental and deliberate acts. The harm can include
actual physical injury as well. It recognizes that certain acts, while
technically falling within the scope of the penal law, are
inconsequential and do not warrant criminal prosecution.

Examples of such trivial acts mentioned in your explanation, such

as picking up a wafer from another person’s plate without
permission, lighting one’s cigar with someone else’s matchbox
without consent, or a light blow given with an umbrella, illustrate
the types of acts that would fall within the purview of Section 95.
These acts may technically meet the criteria for an offence, but
they are considered insignificant and not deserving of legal
consequences.

Section 95 prevents the law from being overly burdensome by

exempting trivial matters from criminal liability, focusing instead
on more substantial offences that warrant attention and
prosecution.

Sections 96-106: Right of Private Defence

The right of private defence is defined in the Indian Penal Code.

The right of private defence allows individuals to protect
themselves and their property against unlawful aggression by
others. Section 96 of the Indian Penal Code states that nothing is
an offence when it is done in the exercise of the right of private
defence.

The doctrine of private defence is based on the following

principles:
 A person facing grave danger to their life does not have to wait for
state aid if it is not readily available.
 Private defence is a preventive measure rather than a means of
punishment, although punitive consequences may occur.
 The right of private defence should not be used for self-gratification
or to satisfy malicious or sadistic urges. It should not involve
deliberate retaliation.

8. Critically examine the various stages of crime

Section 511, IPC defines punishments for attempting to commit
offences punishable with imprisonment with life or other
imprisonment.

General Principle – In every crime there are four successive stages

in its commission,

1. Intention to commit the crime

2. Preparation to commit the crime
3. Attempt to commit the crime
4. Accomplishment

Intention – Intention is the direction of conduct towards the

object, chosen upon considering the motive which suggests the
choice. Intention to commit crime is not punishable under Indian
Penal Code, like the penal laws of other countries, because it is
impossible to read mind of man. It is difficult to contemplate in the
mind of a man and to punish him for his ideas in his head.

Preparation – In general preparation is not punishable because a

preparation apart from its motive would be generally be a harmless
act. It would be impossible in most cases to show that the
preparation was directed to a wrongful end or was done with an
evil motive, or intent, and its not the policy of the law to create
offences that in most cases it would be impossible to bring home
the culprit or which might lead to harassment of innocent persons.

Preparation punishable in exceptional cases - There are

however exceptional cases, wherein the contemplated offence may
be so grave that it would be of the Utmost importance to stop it at
its initial stage and punish it at the preparatory stage itself.

These are preparations to:

(i) collecting arms, etc., with the intention of waging war against
the Government of India (section 122, IPC);

(ii) committing depredation on territories of power or at peace with

the Government of India (section 126, IPC);
(iii) making or selling or being in possession of instruments for
counterfeiting coins or Government stamps (sections 223-235 and
257, IPC);

(iv) possession of counterfeit coin, Government stamp, false weight,

or measure (sections 242, 243, 259 and 266, IPC); and

(v) Making preparation to commit dacoity (section 399, IPC).

If intention and preparation were made punishable, it would be

impossible to prove that the object of an accused was to commit an
offence. For instance, a man might purchase arsenic powder for a
medicinal purpose, not necessarily for committing murder. Again,
the acts of mental determination and that of preparation are too
remote from the completion of a crime.

Attempt - In other words, attempt is the direct movement towards

the commission of an offence after the preparations have been
made. According to English law, a person may be guilty of an
attempt to commit an offence, if he does an act which is more than
merely preparatory to the commission of the offence; and a person
may be guilty of attempting to commit an offence even though the
facts are such that the commission of the offence is impossible.

Once an act enters into the arena of attempt, criminal liability

begins, because attempt takes the offender very close to the
successful completion of the crime and so it is punishable in law
like the completed offence.

An attempt, creates alarm which of itself is an injury, and the moral

guilt of the offender is the same as though he had succeeded. The
act may be sufficiently harmful to society by reason of its close
proximity to the completed offence classed as a crime. Hence,
unlike civil law, criminal law takes notice of attempts to commit
punishable wrongs and punishes them according to the nature and
gravity of the offence attempted. And if the third stage is
successful, then the crime is completed and the accused will be
liable according to the offence committed by him.
 Thus an attempt in order to be criminal need not be the
penultimate act. It is sufficient in law, if there is at present an
intent coupled with some overt act in execution thereof.

Every case is to be judged according to its own facts and

circumstances. However, in order to determine at what stage an
act or a series of acts done towards the commission of the intended
offence would be an attempt to commit offence, some principles
have been evolved with the help of judicial pronouncement. These
are:

1. Proximity Rule
2. Doctrine of Locus Paenitentiae
3. Impossibility Test
4. Social Danger Test
5. Equivocality Test

In State of Uttar Pradesh v Ram Charan, the court held that

attempt is an intentional act, which a person does towards the
commission of an offence, but which fails in tis object through
circumstances independent of the violation of that person.

In Abhayanand Mishra v. State of Bihar, the Supreme Court held

the accused guilty of attempt to commit cheating under sections
420/511 IPC. The court observed that the act of preparation had been
completed when the accused prepared his application for the purpose
of submission to the University. The moment he dispatched it, he
entered into the realm of attempting to commit the offence of
'cheating'. He did succeed in deceiving the University and inducing it
to issue an admission card. He failed to get the card and sit for the
examination solely because something beyond his control took place,
in as much as the University was informed that he was neither a
graduate nor a teacher to qualify him to take up M.A. examination
privately.
9. Explain with the help of examples exceptions to murder.

Murder is a heinous offence which is punishable under the Indian

Penal Code. Murder is defined in Section 300 where culpable
homicide amounts to murder. Culpable homicide (Section 299) is
genus and murder is its species. It is necessary that all murder is
a culpable homicide but not necessary that all culpable homicide
is a murder. The punishment for the murder is defined in Section
302. There are certain exceptions provided in Section 300 which
state the case of culpable homicide which does not amount to
murder, which is punishable under Section 304 of Indian Penal
Code.

The exceptions are: -

1. Grave and sudden provocation

2. Private Defence
3. Exercise of Legal Power
4. Without premeditation in a sudden fight
5. Consent

The above stated extenuating circumstances do not offer complete

vindication of the conduct of the accused. But they do reduce the
impact of gravity of the offence. In general the onus of proving the
guilt of the accused always rests on the prosecution. But the
burden of proving the existence of circumstances bringing the
case within exception under Section 300 of IPC (as in case of
exception lies upon the accused).

Exception 1 : Grave and Sudden Provocation as mitigation-

The code has listed under exception 1 to 300, IPC the

circumstances under which the offence of murder will be reduced
to ‘culpable homicide not amounting to Murder’ punishable under
Section 304, IPC if the murder is committed on provocation
adduced by the deceased. The following are conditions in order to
invoke benefit:-

1. The deceased must have given provocation to the accused.

 2. The provocation must be grave.
3. The provocation must be sudden.
4. The offender, by reason of the said provocation, should have
been deprived of his power of self-control.
5. The accused killed the deceased during the continuance of
the deprivation of the power of self-control.
6. The offender must have caused the death of the person who
gave the provocation or that of any other person by mistake
or accident.

It may be stated that the defence of provocation is further limited

by the flowing three provisos. That is to say, the exception is not
available;-

1. If the accused courts (gives) provocation or uses it as an

excuses for assaulting another or
2. If the act is legally done by a public servant in the exercise
of his legal right as a public servant or
3. If the act is done in the exercise of the right of private
defence.

Reasonable man’s Test – K.M. Nanavati.- The Supreme Court in

K.M. Nanavati v. State of Maharashtra has extensively
discussed the law relating to provocation in India and observed
that –

(1) The test of 'grave and sudden provocation' is whether a

reasonable man, belonging to the same class of society as the
accused, placed in the situation in which the accused was placed,
would be so provoked as to lose his self-control.

(2) In India, words and gestures may also under certain

circumstances, cause grave and sudden provocation to an accused
so as to bring his act within the first exception to section 300 of
the Indian Penal Code.

3) 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
(4) The fatal blow should be clearly traced to the influence of
passion arising from that provocation and not after the passion
has cooled down by lapse of time, or otherwise giving the accused
room and scope for premeditation and calculation.

The Court further said:

What a reasonable man will do in certain circumstances depends

upon the customs, manners, way of life, traditional values, etc., in
short, the cultural, social and emotional background of the society
to which an accused belongs. In our vast country there are social
groups ranging from the lowest to the highest state of civilisation.
It is neither possible nor desirable to lay down any standard with
precision; it is for the court to decide in each case, having regard
to the relevant circumstances.

The Supreme Court in Muthu v. State of Tamil Nadu, on 5th

November, 2007 held that constant harassment may lead to
deprivation of the power of self-control amounting to grave and
sudden provocation. The accused Muthu angered by a ragpicker-
Shiva's daily habit of throwing waste into his shop, took out a
knife and stabbed him to death. Differentiating between a pre-
planned crime and a crime resulting from a fit of rage, the Court
said this was not a murder but culpable homicide not amounting
to murder punishable under section 304, IPC. In so doing, the
Apex Court placed littering several notches higher on the scale of
offences.

Exception 2: Exceeding the Right of private defence

Exception 2 deals with those cases wherein a person exceeds the

right of private defence. If the excess is intentional, the offence is
murder, if unintentional, it is culpable homicide not amounting to
murder. That is to say, this Exception would apply, if the accused
caused the death of a person without premeditation and that,
when the accused caused the death of the deceased, he had no
intention of causing more harm than was necessary for the
purpose of defence (even if he caused more harm than was
necessary for the purpose of private defence), and that the act
was done in good faith. For instance, as stated by the framers of
the Code:
A man who deliberately kills another in order to prevent that other
from pulling his nose should be allowed to go absolutely
unpunished, would be most dangerous.

In the case of Balbir Singh Balwant Singh v. State of Bihar

the court held that It is a cardinal principle of the law of right of
private defence that the accused must be free from fault in
bringing about an encounter; there must be present an impending
peril to life or of great bodily harm, either real or apparent, such
as to create an honest belief of an existing necessity; there must
be no safe or reasonable mode of escape by retreat; and there
must be a genuine need for taking life. The right of private
defence is purely preventive and not punitive or retributive.

In Lachhmi Koeri v. State of Bihar, a Sub-inspector deputed

the havildar and the constable to arrest the appellant but gave no
order in writing. The havildar was not in uniform. There was no
evidence to show that the appellant was acquainted with the
havildar prior to the date of the encounter. The havildar
confronted the appellant and a scuffle ensued between them, in
the course of which the appellant's shirt was torn. The appellant
then took out a chhura (knife) from his waistband and gave a blow
with it on the havildar's arm. The havildar fell into a nala (drain)
by the side of the road, still holding onto the appellant who fell on
top of him. The appellant then gave several blows to the havildar,
got out of the nala and fled. The havildar died very shortly
afterwards.

Held, that the appellant initially had the right of private defence,
but subsequently intended to cause far more harm than was
necessary for his defence. Hence the appellant's case did not
come under Exception 2 to section 300, IPC and therefore was
guilty under section 302, IPC for murder

Exception 3: Public Servant exceeding his powers

This exception has been provided to protect a public servant or a

person aiding a public servant, if either of them exceeds the
power given for the advancement of public justice. The exception
clause will not apply if the act is illegal or against public policy
and not authorised by law or the person glaringly exceeds the
power given him by law.
The question whether the public officer did or did not believe in
the legality of his powers is a question of fact to be decided upon
the facts and circumstances of each case.

Exception 4: Sudden fight

This exception applies to cases wherein death is caused in a

sudden fight without premeditation in the heat of passion upon a
sudden quarrel so long as the fight is unpremeditated and sudden,
the accused , irrespective of his conduct before the quarrel, earns
the mitigation provided for in Exception 4 to section 300, IPC
subject to the condition that he did not in the course of the fight
take undue advantage of or act in a cruel or unusual manner.

Essential ingredients :

To invoke the benefit of this clause, death must be caused;

1. In a sudden fight
2. In the heat of passion without premeditation, arising out of
sudden quarrel
3. Without the offenders having taken undue advantage
4. The offender should not act in a cruel or unusual manner
5. The fight must have been with the person killed.

The most important element under this clause is that there should
be a sudden fight. The word ‘fight’ has not been defined in the
code. In ordinary parlance the word ‘fight’ means a combat
between two or more persons, whether with or without weapons.
But a mere verbal exchange of words preceding a stab with a
knife will not invoke the application of Exception 4 to section 300,
IPC. Similarly, When the accused had beaten the son of the
deceased in a quarrel and the deceased came to scold him and
was struck dead, it was held that there was no fight and the act of
the accused did not fall under Exception 4 to Section 300, IPC.

The Exception requires that no undue advantage be taken of by

the other side. It is not possible to say that there is no undue
advantage when a man stabs an unarmed person who makes no
threatening gestures and merely asks the opponent (the accused)
to stop fighting. Then also, the fight must be with the person who
 is killed and not with other. In these circumstances the Exception
does not apply.

In the case of Jaman v. State of Punjab, it was held that in case

where a mutual conflict developed and there was no reliable and
acceptable evidence as to how it started and as to who was
aggressor, the situation did not permit the plea of private defence
on either side. This would be a case of sudden fight and would be
dealt with under Section 300, IPC, exception 4.

Exception 5: Consent

The last exception to section 300, IPC deals with causing death by
consent which is commonly known as euthanasia (mercy killing).
The exception is justified on the ground that a man's life is not
only valuable to himself, but also to the family members, state and
society. A man is therefore not entitled to give up his life by
consent; though consent has unquestionably the effect of
mitigating the intensity of crime, it can never exonerate the
offender. For instance: The motives which prompt men to the
commission of this offence are generally far more respectable
than those which prompt men to the commission of murder.

In Dasrath Paswan v. State of Bihar, the accused was a student

of class X. He had failed at the annual examination for three years
in succession. The accused was very much upset and depressed at
these failures. He took his last failure so much to heart that he
decided to end his life and informed his wife, an illiterate woman
of about 19 years of age, of his decision. His wife asked her first
and then kill himself. In accordance with the pact the accused
killed has wife first, but was arrested before he could kill himself.

Held, that the deceased was above the age of 18 years and that
she had suffered death with her own consent. The deceased did
not give the consent under the fear of injury, nor under a
misconception of fact, but voluntarily, and so the case would fall
under Exception 5 to section 300, IPC. Such cases in common law
will fall under the "suicide pact", and it shall be manslaughter and
not murder.

Mercy Killing :- It is high time that a new exception VI to section

300 IPC be added under the caption ‘Mercy Killing’ subject to two
years imprisonment and or fine of Rs.5000 or with both. This
provision should be invoked to cover cases, where a person out of
compassion, without any ill-will kills another, unlawfully, such a
man deserves different treatment than an ordinary case of murder.
For instance, where a person kills another believing in good faith
on reasonable grounds that the victim was:

1. Permanently subjected to great bodily pain, disease or suffering

or
2. Permanently helpless from bodily or mentally incapacity in
discharging his or her normal functions and is terminally ill
3. Subject to rapid and incurable bodily or mental degeneration.

10. Elaborate in detail any three offences relating to property.