IPC MODULE NOTES

Module 1 - Elements of Crime

Mens Rea
o Interpretation of Mens Rea
▪ Attaching blame, or attaching blame so as to cross the line from civil to
criminal.
• This phrasing encompasses both the mental requisites of an offence,
as well as the general exceptions of the same.
▪ Focusing on the elements of an offence that further focus on the mental state
of the accused.
• This theory has been propounded as that of an intentional state,
encompassing emotions such as beliefs, desires, expectations,
terrors, etc.
• This is based on the principle of intent, wherein an individual
deliberately commits and offence and thus is held responsible for it.
o History of Mens Rea
▪ Till the 12th century, mens rea was not required and liability was generally
strict. A person was liable for all intentional, or unintentional, acts that were
committed.
▪ There was also no distinction between criminal and civil liability, and
hence, no difference between a crime and a tort.
▪ The concept of mens rea was adopted in 13th century under the influence of
the Church wherein the legal maxim reum non facit nisi mens sit rea was
found in the ledges of Henry I.
▪ Initially, the general concept was very vague but it developed over time,
becoming more precise and formulating a definitive image of a guilty/evil
mind.
▪ The requirement of mens rea shifted from it being a mere tool to placate the
prevalence of blood feuds amongst individuals themselves, to actually
punishing immoral acts.
▪ Such a change was borne out due to the canon law and the Church’s
influence on the morals of the masses. Thus, Mens Rea became the
yardstick of the moral code.
o Motive
▪ Refers to why a person committed a crime. It is different from intention,
which relates to whether an act was accidental or deliberate.
▪ Motive is irrelevant to the concept of mens rea. It is not required for the
prosecutor to prove that the accused had a particular reason behind
committing a crime. Concurrently, merely proving motive also does not
lead to a conviction.
 ▪ In this way, the law is very mechanical.
o Degrees of Mens Rea
▪ Used to differentiate the levels of culpability, or blameworthiness, of an
individual’s acts.
▪ Intention
• A person is said to cause an act voluntarily whereby he intends to
cause it. [Section 39 of the Indian Penal Code]
• It may also be defined as the desire of a conscious mind to commit
an act.
• The test then becomes: Whether that person committed the act to
such an extent that an ordinary person will consider such efforts to
be sufficient in bringing about the effect desired.
• In light of this, the person may deploy all means possible to commit
such an act, such as procuring a dangerous weapon and striking the
target on a vital organ so as to efficiently exact his objective.
▪ Knowledge
• This refers to mere awareness with regards to consequences. IT may
be seen as passive intention.
• Here there is almost certain knowledge that a consequence will be
effected, but like all things a slight uncertainty.
• The distinction between knowledge and intention can be seen in the
case of an intoxicated person. When an intoxicated person commits
an act, he may intend to do so, however, it is not necessary that his
intoxicated mental states recognize or are certain of the
consequences of such an act.
• Intention can, however, be said to include knowledge as one
generally intends to commit an act knowing that the consequences
of the same would be the satisfaction of his motive.
• A similar distinction can be drawn between motive, intention and
knowledge.
▪ Reasons to Believe, Recklessness
• A person is said to have reasons to believe a thing, if he has
sufficient cause to believe that thing and not otherwise. [Section 26
of the Indian Penal Code]
• Therefore, if a person chooses to ignore such reasons to believe and
acts otherwise, he may be said to have acted in a reckless manner
with utter disregard of the consequences being borne out of the act
itself.
▪ Negligence
• A person is said to be negligent when he does not take due care and
caution, such as that which would have been taken by an ordinary
 prudent person, with regards to committing an act, be it lawful or
unlawful, which results in dire consequences.
▪ Zailbert’s Five Ways Patricia can Kill her Husband
• This represents a thought experiment by the American philosopher
Zailbert who desired to find out how one attributes certain degrees
of culpability to different levels of mens rea.
• In doing so, he proposed five scenarios in decreasing order of
culpability, illustrating how intention, knowledge, recklessness and
negligence may be differentiated.
• First – Patricia sets fire to her apartment intending to kill her
husband. [Intention]
Second – Patricia sets fire to her apartment to destroy it, but not
intending to kill her husband – though she knows that her husband
is inside the apartment and will in all likelihood die in the fire.
[Knowledge]
Third – Similar to (2), though this time Patricia is not certain that
her husband is inside; she suspects that it is likely that he is inside,
and this suspicion is not enough to dissuade her from carrying out
her intention. [Recklessness]
Fourth – Patricia forgets to turn off the stove, and as a result the
apartment is set on fire and her husband is killed. She has no
intention to kill her husband or to set fire to the house, and she is
unaware that she actually kills hum or even creates a fire, or if that
happens, it was a consequence of her act. [Negligence]
Fifth – Patricia turns on her TV set intending to watch the news; the
TV set subsequently malfunctions, explodes and it causes a fire in
her apartment. As in ($), she does not have an intention to either kill
her husband or set fire to the apartment. [Unforeseeable]
• In (1), there is a clear intention to commit murder.
• In (2), the idea that a person is expected to know the natural and
probably consequences of their acts applies. Such an act was
‘sufficient in the ordinary course of things’ to kill her husband, and
she knew that.
• In (3), Patricia had a reason to believe that her husband was inside,
and such belief was utterly disregarded in a act of reckless
commission.
• In (4), there is a clear lack of due care and caution being taken by
Patricia which unfortunately causes dire consequences.
• In (5), the event in itself was a freak accident and so unforeseeable
that it does not attract any liability on the part of Patricia.
o Standard of Mens Rea
▪ This test basically oscillates between whether an objective, reasonable man
test, or a subjective, individual experience and intellect, test should be
applied.
▪ B v. DPP (Subjective Mens Rea)
• A 15-year-old defendant was constantly pestering a 13-year-old girl
for oral sex. He was charged to court for inciting a child under the
age of 14 to commit gross indecency after the girl refused his
demands. An intention to commit the act with a child under the age
of 14 as an element of crime was not expressly provided for in the
statute. The defendant pleaded that he honestly believed that the girl
was above the age of 14 years but such an argument was rejected.
• When the House of Lords tried the case, the bench had to answer
whether a common law presumption of an objective standard
governs the mental state requirement for criminal statutes in a
situation where the Parliament has failed to specify a requirement.
• The bench answered in the negative. The bench applied an honest
belief test, a subjective standard, and reversed the judgement.
▪ Emperor v. Abdoel Wadood Ahmed (Subjective Mens Rea)
• The Court upheld this standard in stating:
“The standard of care and caution must be judged according to the
capacity and intelligence of the person whose conduct is in
question.”
The Court held this to be in line with good faith.
▪ Ram Bahadur Thapa v. State of Orissa (Subjective Mens Rea)
• In this case, the accused had attacked the deceased honestly
believing the latter to be a ghost or an apparition, possibly
influenced by the folklore that the region around the crime scene
was haunted.
• The Orissa High Court relied on two leading judgements, Waryam
Singh v. Emperor and Bouda Kui v. Emperor. Following the same,
the Court held that the defendant was protected under Section 79 of
the Indian Penal Code as he acted with the honest good faith belief
that he was attacking ghosts and not human beings.
• It held that the mere fact that he could have exercised due care and
caution in determining the true nature of the apparitions would not
be enough to hold him liable.
• Here, the Court did not say that all reasonable people in the shows
of the defendant would be absolved of liability in the same way that
he was. The Court, thus, took an extremely subjective approach in
focusing on the honest belief of the defendant himself.
o Theory of Natural and Probable Consequences
▪ To be reasonably foreseeable in criminal law, the consequence is not
required to be of a strong probability, a possibility that is reasonably
contemplated is enough.
▪ Actual knowledge is not required, merely foreseeability is.
▪ A natural and probable consequence is one that a reasonable person, put in
the same situation, and knowing what the defendant knew, would know is
likely to happen if nothing unusual intervenes.
▪ Sanku Sreedharan Kottukallil v. State of Kerela (Natural and Probable
Consequences)
• Every man is presumed to intend the natural, reasonable and
probable consequences of his acts whether in fact he intended them
or not.
• This is followed because the intention and knowledge that a person
possess cannot be discovered definitively, except from a confession,
which again, cannot be conclusively relied upon.
• Therefore, there is a need to set a presumption in order to infer from
the circumstances that the accused took up the risk of such
consequences to be effected, either intending to cause them or
recklessly ignoring the very real possibility that they would be
caused.
▪ DPP v. Smith (Objective or Subjective Mens Rea)
• Smith was ordered by a police constable, who knew that Smith was
in possession of stolen goods, to stop his car. Smith intentionally
accelerated away. The police constable jumped on the car, and
Smith swerved it violently which caused the police constable to fall
off and get killed by another oncoming car.
• The House of Lords held that an objective test was to be applied,
which meant that in this case, there was an intent for murder.
• The Bench held that when the accused is capable of forming intent.
In that he is not insane or suffering from diminished mental capacity,
any actual intention is immaterial, and the mens rea test for a
conviction for murder is what in all the circumstances the ordinary
reasonable man would have contemplated to be the natural and
probable result of the grievous bodily harm done.
▪ Hyam v. DPP (Intention and Knowledge)
• Hyam was in a relationship with a man, which subsequently ended.
She then became jealous of her ex’s new fiancée and poured petrol
in the latter’s letter box, igniting the same using a rolled-up
newspaper. She did not warn anyone and simply drove home. The
fire killed two daughters of the fiancée, who managed to escape with
only her son.
 • She then claimed at trial that she had only an intent to frighten and
not kill the fiancée.
• House of Lords states that a person had the requisite mens rea for
murder if they knowingly committed an act which was aimed at
someone and which was committed with the intention of causing
death or serious injury.
• Thus, the Bench held that since the defendant knew that there was a
serious risk that death or serious injury would be caused by her acts
and still deliberately caused such a consequence, without a lawful
excuse, it did not matter whether she intended the consequences or
not.
▪ State of Kerela v. Ashraf (Recklessness)
• Deceased, a 14-year-old boy, went stepped into a river for a bath but
suffered severe electric shocks, causing convulsions and
unconsciousness. Apparently, the accused, three individuals, had
carelessly left a live wire in an open place. The second accused went
and immediately turned off the power supply. While bringing the
deceased to the hospital, he passed away.
• The accused were charged under Section 304 of the Indian Penal
Code, read along with Section 43 of the Indian Electricity Act, for
having caused the death of the deceased. The other two accused
were acquitted as there was not enough evidence to ensure their
conviction.
▪ Basdev v. State of Pepsu (Intention for Consequences, Knowledge of the
Intoxicated)
• If intention is established, can the Court presume an intention for all
consequences?
• Supreme Court held affirmative.
• Appellant, in an intoxicated state, ordered a 15-16-year-old boy, to
step aside so that the former could occupy a seat. When the boy did
not move, the appellant whipped out a pistol and shot the boy in the
abdomen causing his death.
• An intoxicated man is to be attributed with the same knowledge as
that of a sober person. Intent, however, may be gathered paying due
regard to the degree of intoxication.
• The Supreme Court, however, upheld the conviction of the appellant
as he had full knowledge of his act and the natural and probable
consequences arising from it.
▪ Note on Theory of Natural and Probable Consequences
• It is also used to extend liability to aiders and abettors for unplanned
misdemeanor that are reasonably foreseeable or natural
consequences of some other criminal activity.
 •
Under this doctrine, when a party chooses to become a part of the
criminal activity of another, he or she essentially chooses to forfeit
their personal identity and accepts the acts of the others as their own.
▪ W v. Dolbey (Recklessness and Malice)
• Dolbey, aged 15 years, pointed an air rifle on X, who twice told him
to stop. Dolbey replied that the gun was not loaded, and honestly
believed that to be the case. He puled the trigger, and since the gun
was loaded, injured X.
• The Bench allowed the appeal of Dolbey as it held that in these
circumstances, recklessness as to whether the gun was loaded or not
could not amount to malice, provided that Dolbey honestly believed
that such was not the case.
o Transferred Malice
▪ Two divisions of Murder
• With malice aforethought
o Punishable by the death penalty.
• Without malice aforethought
o Punishable by life’s imprisonment and branding on the
thumb.
• Sayre points out that malice was earlier understood to be the general
malevolence and the cold-blooded desire to injure.
• Coke further defined murder as an unlawful killing with malice
aforethought, whether expressed or implied by law.
o This paved the way for the concept of implied malice.
• Following this, Stephen defined malice aforethought as any one of
more of the following states of mind preceding or coexisting with
the act or omission by which death is caused, and it may exist where
the act is unpremeditated:
o An intention to cause death or serious injury, regardless of
whether such an act is successful or not,
o Knowledge that an act will probably cause death or serious
injury, although such knowledge is accompanied with an
indifference or a wish that it may not result in such
consequence.
o An intent to commit any felony whatever,
o An intent to oppose by force any officer of justice in his way
to, in, or returning from the execution of the duty of
arresting, keeping in custody, or in prison, or the duty of
keeping peace or dispersing an unlawful assembly, provided
that the offender has notice that the person killed is such an
officer so employed.
• The doctrine of transferred malice applies where the mens rea of one
offence can be transferred to another.
o For example, if A shoots B, intending to kill him, but misses
and kills C. Mens rea can be transferred so as to convict A
for the murder of C.
• R v. Pembildon (Transferred Malice)
o Defendant was ejected from a pub and engaged in an
altercation on the streets. He threw a large stone at his
opponents. He missed and hit a window causing damage.
o The Court held that it was not possible to transfer malice to
strike a person to the situation of maliciously damaging
property.
o The Court interpreted maliciously to mean that intention had
to be proved, although a reckless disregard would also
suffice.
• AG Reference (No. 3 of 1994) (Transferred Malice, Murder and
Manslaughter)
o B stabbed his pregnant girlfriend, which wounded the
prematurely born baby, who subsequently died.
o Two issues were raised:
▪ Whether unlawful injury deliberately inflicted on a
mother carrying a child in her uterus could constitute
murder or manslaughter when the child was born but
subsequently died due to the injuries.
▪ Whether death caused as a result of injury directed
not to the fetus but to the mother gave rise to liability.
o House of Lords held that B could be convicted for
manslaughter but not murder. B did not have the mens rea
for murder and the concept of transferred malice was
inapplicable to the circumstances.
o B did satisfy the elements of manslaughter:
▪ Intention to stab mother,
▪ Knowledge of natural consequences,
▪ Dearth caused by the act.
o Th fact that the injury was not directed tat the person who
died as a result did not negate liability for manslaughter.
Actus Reus
o Interpretation of Actus Reus
▪ Actus Reus, sometimes called the external element or the objective element
of a crime, refers to the guilty act, which proved beyond a reasonable doubt
in combination with the mens rea produces criminal liability.
▪ This may be read with reference to:
• Place – Criminal Trespass
• Time – House Breaking at Night
• Person – Kidnapping and Abduction
• Consent – Rape
• State of Mind of the Victim – Rape and Criminal Intimidation
• Possession - Theft
• Preparation – Robbery and Dacoity
▪ This also has a higher degree of tangibility and observability and is thus,
easier to understand than mens rea.
▪ There are three components:
• Voluntary Conduct
o Any conduct done has to be voluntary (Actus me invite factus
non set meus actus – An act done against my will is not my
act).
o Circumstance
o Result
• Generally, not all three are required to be fulfilled.
• Conduct is the only essential requirement, the other two being a
prerequisite element of an offence depends on what offence we are
prosecuting someone for.
• However, the basis for the doctrine for causation lies in the third
component, wherein the direct nexus between a conduct and the
result must be proven so as to fulfill the additional burden of
foreseeability.
• The second component, circumstance, may be relevant in certain
offences, such as bigamy.
Offense Conduct Circumstance Result
Culpable Required Not Required Death is
Homicide required as a
result
Theft Required Required Change in
- Without possession is
Consent required as a
- Prior result
possession
by someone
else
 Attempt Required and Required only in Unsuccessful
Sufficient particular cases, commission of
such as theft the crime is
required as a
result.
Rape Required Taken into Not Required
Consideration
o Hypotheticals in Law
▪ The question and relevance of hypotheticals in law comes into play when
evaluating the compensation or damage that one receives for the so called
‘future los of earning’ or ‘potential profit’ that one could have in one of the
many possible universes acquired.
▪ Thus, the hard part lies in determining which of these futures the Court finds
most probable in order to base damages in a way that does justice for the
same.
▪ In doing so, the Court will have to consider carious hypotheticals and their
relative probabilities.
▪ Different legal systems around the world do this in different ways. Some,
for example, prefer a mere objective approach, based on ordinary and
average development. While others adopt a subjective approach, trying to
indemnify the victim as exactly as possible taking into account the concrete
individual circumstances and realistic potential for growth.
▪ The essential problem then also becomes what is the standard against which
compensation is to be calculated, if a subjective approach it to be adopted.
▪ Here, is where the role of counterfactual thinking comes into play.
▪ [The text ends here without an explanation of how exactly such a problem
is resolved]
o Causation
▪ From a legal point of view, causation raises two essential questions:
• What exactly is a cause in the law?
• If causation is a requisite element of the tort or crime in question –
how does one recognize it and, if necessary, prove it?
▪ What is Cause?
• There may be three cases that can occur which may help interpreting
cause in a different way:
o A direct physical act, such as the shooting of a person by
another ad thereby causing the former’s death.
o An indirect, but intentional, act, such as when one, intending
to cause death of another, misdirects the latter into jumping
off a cliff, although the former did not physically push the
latter down.
 o A remote and inconsequential act, such as when a person
accidentally bumps into an old lady, causing her to visit a
hospital, wherein she is burned alive by a mad arsonist.
• The adherents of the narrow notion of cause, look for causa causans,
or proximate cause. This may be understood as the only relevant
cause for the injury, thereby importin aspects of fault.
o Adherents of the narrow approach would not hold the person
in the third situation liable for causing the death of an old
lady.
• The adherents of the broad notion of cause, advance the notion that
the relevant cause has to be obtained from the infinite causes that
may exist, by eliminating the irrelevant ones. Some causes are
irrelevant as the sequence of events these are part of lacks at least
one of the further requisite elements of a tort or a crime.
o English text books have classified the test as a ‘but for’ test.
o In this sense, it can be said that the lady would not have
ended up in the hospital being burnt alive but for the
carelessness of the person in the third situation.
o Germans refer to this as ‘hinwegdenken’, in that if one
cannot ‘think the act away’ without the result vanishing as
well, then the act is a cause of the result.
o In this sense, it can be said that the real factual situation is
being compared to a counterfactual, or hypothetical one, in
an attempt to evaluate the nexus between the conduct and the
result.
o This test, however, is not so reliable in all cases.
o For example, saying that the person in the third situation
would be liable for the murder of the old lady is far-fetched,
especially because of the intervening conduct of the arsonist
whose act had the direct result of the old lady’ death.
o Similarly, in a case where two factories are independently
responsible for series of toxic discharge which kills all the
fishes in a lake, both of them would be acquitted if the but
for test is applied.
o Therefore, the ‘but for’ test may be helpful in factual
causation, but to assess liability, one has to determine legal
causation.
• Determining causation also becomes relevant when there is an
intended and an unintended result of a conduct, such as death
resulting from a robbery attempt. In such a case, causation serves to
limit the scope of strict liability.
 Event
People expected
to act for the
benefit of the
Act of Third victim (Doctor)
Party
Intervention Any other person

Thing to
Condition of
Consider in Escape Case
Victim
Legal Causation
Act of Victim
Absence of
Proper Other Acts
Treatment

• Causation by Natural Element

o When causation involves natural events rather than person,
the basic rule is that causation is attributed to the defendant
unless the intervening natural event was not reasonably
foreseeable.
o Therefore, the intervention must be extraordinary, rather
than a usual occurrence.
• Read illustrations given on page 29 to 32 for contextual
understanding of intervening acts.
• Michael, (1840) 0 C&P 356, 173 ER 867
o Defendant, intending to kill her illegitimate child, gave a
poisoned bottle of milk to the foster mother of the child. The
 foster mother forgets s the bottle on the mantle, and an
innocent boy, her son, picks it up and feeds it to the baby.
o The defendant was held liable as the result was the direct
consequence of her acts and she had the requisite mens rea.
The mere fact that an intervention was involved would not
change the chain of causation, as the intervener was innocent
and the act was foreseeable.
o If the intervention was not innocent, and the person feeding
the baby the milk had knowledge of it containing poison, the
original defendant would not be held liable.
• Illustration 5 – The Case Concerning a Drug Overdose – Page 30
o Imagine P prepares a heroine mixture and ands it to W, who
administers the same to himself but dies of overdose.
o Here, P would be liable for manslaughter as even though W
committed the act which caused the consequence, P played
a part in his death.
o P’s act, in the present case, was in concert with that of the
defendant.
o Such a principle originates from the fact that both their acts
are so inextricably linked, it is impossible to segregate the
two, and W’s death was cause by his own action combined
with that of P’s.
• R v. Blaue (Lack of Proper Treatment as an Intervening Event)
o Case has been described below under the heading of
sensitive plaintiff.
• Illustration 8 – The Case Concerning the Hemophiliac – Page 31
o Imagine a hemophiliac is stabbed and loses blood at an
accelerated rate due to the disease, in which blood doesn’t
clot properly. For such a person, even a mere scratch can
prove to be fatal.
o In such a case, the causation issue should depend on the
actor’s knowledge of the condition of his victim. Where he
had such knowledge and intended to kill, he should be
deemed a murderer, for he produced a mortal wound which
ended up in death.
o I he did not have such knowledge but had the conscious
intention of killing, yet he only manages to injure the victim
slightly in such a way that it would not be sufficient to
ordinarily cause death, he should not be held liable for
murder but for attempt.
o Finally, if there was no knowledge or intention, causation
merges with culpability and he would merely be held liable
for negligence.
o Application of the Theory of Causation
▪ R v. White (But-for Test)
• Defendant put poison in the drink of her mother with the intention
to kill her. She took a few sips and died, however, the medical report
said that he died because of a heart attack and not because of the
poison.
• On appeal, two questions were to be answered:
o Whether defendant was liable given that his actions had not
factually caused the death.
o Whether having delivered a single dose was sufficient
attempt to ground the conviction in light of the evidence that
the defendant intended the victim to die as a result of
multiple doses given over a period of time.
• The Court established the But-for test of causation, according to
which the defendant was acquitted as the death of his mother was
not solely hinged, or in any case effected, by the act of the defendant.
• However, the Court still held that the defendant was liable for
attempt as he had begun the execution of his plan, albeit an
unsuccessful one.
▪ Govindaswamy v. State of Kerala (Chain of Causation)
• Please read case summary given on page 33-35.
▪ Rewaram v. State of Madhya Pradesh (Chain of Causation with Intervening
Disease)
• Please read case summary given on page 36-38.
• Upheld the But-for test.
▪ Suleman Rahiman Mulani v. State of Maharashtra (Rash and Negligent Act
in Section 304A)
• Accused and his companion crashed into the deceased with their
jeep. They tried to take him to the hospital, but the deceased died
due to multiple injuries.
• The Court held that the accused could not be committed under 304A
as for such a conviction a direct nexus between a rash or negligent
act and the death was to be established.
• In the present case, it could not be conclusively proved that there
was a rash or negligent act or one that the accused was responsible
for, the conviction could not be made.
o Voluntary Act
▪ Acts that are not fully the result of independent will but are committed with
extreme indifference to human life are usually treated a voluntary. This is
where the concept of recklessness creeps in.
▪ There are three kinds of involuntary acts:
 • Unconscious Acts – Such acts which are caused by diseases or
spontaneously
• Conscious but not Controllable Acts
• Acts done under Compulsion
▪ Hill v. Baxter (Voluntary and Involuntary Act)
• A man succeeded in driving himself a substantial distance before
having an accident. He was charged with dangerous driving.
• At first, as he could not remember anything from a very early point
of the journey till immediately after the accident, it was suggested
that he was not conscious of what he was doing and thus, could not
form intent.
• He argued the defense of automatism, which meant that the accused
did not know or appreciate the nature or quality of his actions. In
this sense, it mirrors insanity.
• The key question was whether such a defense was available to him.
• Lord Goddard reasoned that there was not evidence that the accused
was suffering form a blackout and reasoned that he had simply fallen
asleep, an act which was very much in control of the accused since
he was aware that he was himself tired.
• Lord Pearson reasoned that since the accused had driven a
substantial distance successfully, he was clearly driving with skill
and thus, should be convicted.
▪ Duress
• Involuntary acts should be distinguished from those done under
duress.
• Duress includes the use of force, or threat of use of force, to coerce
another to commit a criminal act. Crimes committed under duress
are considered voluntary because an individual’s decision to
succumb is normally based in cost-benefit analysis in which he
weighs the consequences of acting and refusing to act.
• Nonetheless, the law protects such individuals by allowing them to
take the defense of duress.
• This is based on the idea that the purpose of Criminal Law is not
fulfilled by punishing individuals or the behaviors that is not the
product of free and independent will.
o Omission
▪ This refers to the liability of non-acting bystanders in the face of injustice.
▪ The history of punishing omissions dates back to the Romans, where laws
existed against willfully starving someone, and punished people for failing
to complete a surgery.
▪ Laws are meant to punish wrongful conduct, not encourage a particular
conduct as part of a duty to act. This is the reason omissions are only
punishable when there is a special duty to act.
▪ The breach of the general duty to provide aid in an emergency was
considered an insufficient basis for criminal liability to attach for a result

Special
Relation
Reasonable Voluntary
Foresight of Assumption
Injury of Duty

Situations
Where
Omission is
Contractual Punishable Prior
Obligation Conduct

Statutory Continuing
Obligation Act

offense. Among crimes of omission, some appeared to be omissions due to

the breach of a qualified duty to act, also known as a duty to avoid resulting
harm. These were though of as deserving the same punishment imposed in
cases of crimes of commission.
▪ Bohlen’s argument that by failing to interfere with the affairs of the
deceased the defendant left him as he was before, no better off, it is true,
but still in no worse position indicated the difficulty in reconciling the link
between omission and event.
▪ Even in the case where not only omits to act but wishes that the natural
consequences of a wrongful act follow, the person would not be held liable
as it would only be a crime when one would intend such consequences to
follow, and in turn, cause them themselves.
• For example, if one finds their enemy drowning and intends that
such a consequence be furthered, they would still not be held liable
unless they are the ones who have caused such a mishap.
▪ Omission to act towards recuing a person can also not be held liable under
the but-for test.
▪ In the case where the omission to reduce the damage or to rectify the
situation via compensation in any manner is followed by an act that caused
such a damage in the first place, the person would be held liable.
▪ Indian Penal Code References
• Section 32 – Words which refer to acts done also refer to illegal
omissions.
• Section 33 – The word act denotes a series of acts as well as a single
act: the word omission denotes a series of omissions as well as a
single omission.
• Section 36 – Whenever the causing of a certain effect, or an attempt
to cause that effect, by an act or by an omission, is an offence, it is
to be understood that the causing of that effect partly by an act and
partly by an omission is the same offence.
▪ It is often suggested that omissions cannot be causes, in that non-events
cannot bring about a result.
▪ The only reason why criminal law considers omission punishable is for the
purpose of responsibility.
▪ Special Relation
• The duty to act is obvious when the law adopts only moral
conviction the acceptance of which has never been denied within the
community. For example, the duties arising from the relation
between parents and children.
• The Common Law duty of parents and guardians to care for children
who are of a tender age or are found to be otherwise helpless has
many instances found statutory acknowledgment.
o People v. Pierson (Duty of Parents)
▪ Duty to furnish necessities to minors imposed by law
on those designated in the common law as parents,
guardians, or those who by adoption or otherwise
have assumed the relation in loco parentis.
• A special relationship therefore arises out of a legal duty to act.
• Other special relations, apart from the parent-children one, include
spouse-spouse and employer-employee.
• Often the rationale for creating a legal duty to act when people ae in
a special relationship is the dependence of one individual on
another.
• Thus, a parent has an obligation by law to provide for food, shelter,
clothing and medical care to his or her children.
• In addition to this, if one puts another in peril there may exist a duty
to rescue that person, provided such relationship exists.
• Gibbons and Proctor (Duty of Parent to Provide)
o In this case, a man and woman were charged guilty for
failing to provide food to their child, who died as a result.
The man was charged because he was under a duty to take
care of the child while the wife who took the money from
 the father of the child automatically owes a duty towards the
child to look after it.
• Om Prakash v. State of Punjab (Attempt to Starve)
o Complainant was mistreated by her husband at the place of
his residence, to the point where she had starved due to
under-nourishment. Somehow, she managed to escape to a
hospital, where the attending doctor contacted the police
after examining her physical state.
o Accused argued that under Section 511 for an act to amount
to an offence of attempting to commit an offence, it need not
be the last act and can be the first act towards the commission
of an attempt. In Section 307, however, it is the penultimate
act that must be proven to constitute an offence of an attempt
to murder, for liability to be held.
o Rejecting this argument, the Supreme Court held that a
person is said to commit an offence under Section 307 when
he has an intention to commit murder and in pursuance of
that intention does an act towards its commission
irrespective of the fact whether that act is the penultimate act
or not.
o Hence, the Supreme Court convicted the accused.
▪ Voluntary Assumption of Duty
• Volenti non fit injuria expresses the principle that one who has
voluntarily encountered a known danger cannot recover from the
creator thereof.
• Stone v. Dobinson (Voluntary Assumption of Risk for a Relative)
o Defendant was held liable for criminal gross negligence for
not taking care of their infirm relative.
o Side Note – What if the person had not been a relative?
▪ The cases involved an assumption of a duty in
respect of a duty, but there is no logical reason why
the assumption should not be in respect of a non-
relative. – Reed and Fitzpatrick.
▪ Continuing Act
• Fagan v. Metropolitan Police Commissioner (Continuing Act)
o Fagan was approach by a police officer to reverse his car.
While doing so, he accidentally rolled the car on the foot of
the police officer. When the police officer told him to move
the car, Fagan refused to do so, abused him, and turned off
the engine of the car.
o He argued that there could not be an offence in assault in
omitting to act and that driving on the officer’s foot was
 accidental, meaning that he also lacked the requisite mens
rea.
o Th Court held that Fagan’s crime was not a refusal to move
the car but the fact that he had driven it on to the foot of the
officer and decided not to correct his mistake. As a result, he
established a continual act of battery.
▪ Statutory Obligation
• Where a person was duty bound by a specific statute or law to act
but he willingly does not do so, he is liable for an offence.
• Dytham (Duty imposed by a Statutory Obligation)
o A man was kicked out of a bar by a bouncer and
subsequently, kicked to death right in front of a police
constable. The police constable refused to help the victim,
even after multiple request by people witnessing the act
themselves, arguing that he was already off-duty.
o The constable was held liable for the offence of misconduct
for the negligence in perform his duties to maintain peace.
• The person who omits to follow the instructions of a law or omits to
transport to the next hospital a person run down by his car, is
culpable regardless of whether or not the undesirable consequences
resulted from his inaction.
• Modern legislation tends to increase the number of such affirmative
duties, placing under the realm of administrative regulation new
fields hitherto left to out private discretion.
• Indian Penal Code Reference
o Section 175 and 176 penalize omission to give notice or
information or produce documents to public servants by
people legally bound to give it.
▪ Contractual Obligation
• A person is bound to act according to law where he has gone under
a contract with others. He is answerable to the party under a statute
to act according to law, failing which he could be criminally liable
for an offence.
• However, contractual liability is usually not criminal, barring certain
exceptions.
• Indian Penal Code References
o Section 491 - Whoever, being bound by a lawful contract to
attend on or to supply the wants of any person who, by
reason of youth, or of unsoundness of mind, or of a disease
or bodily weakness, is helpless or incapable of providing for
his own safety or of supplying his own wants, voluntarily
omits so to do, shall be punished with imprisonment of either
description for a term which may extend to three months, or
 with fine which may extend to two hundred rupees, or with
both.
• Pittwood (Breach of Contractual Obligation)
o A railway watchman was hired by a railway company to look
after the railway crossing and to shut the gate when the train
approaches the crossing to avoid any damage or harm to the
road users.
o While one day during his duty, he went out and the gate
remained open while the train approached and a man was
killed while crossing the train track.
o Pettwood was prosecuted for gross negligence
manslaughter.
▪ R v. Evans (Continuing Act)
• Defendant was the elder half-sister of the victim, to whom she
supplied a dose of heroin which caused the latter’s death. The
mother had also been present during the whole scenario. When
realizing that the victim became unconscious, both of them simply
walked into the other room to watch TV.
• The question was raised: Whether the defendant owed a duty under
those circumstances after she supplied heroin to the victim.
• The answer was yes.r
Stages Of A Crime

Commission
(Successful
Attempt
Execution)
(Unseccessful
Execution)
Preparation
(Aranging
Means for
Execution
Formation of Mens
of Mens Rea)
Rea

o Preparation
▪ When preparation is too remote, it cannot be punishable. Hence, the test
then becomes how it is that certain different kinds of preparations are
distinguished.
 ▪There are, however, certain types of preparations which are punishable by
law, regardless of whether their consequences are remote or not. These are
offences the commission of which the State wants to eliminate completely:
• Waging War against the State
• Dacoity
• Possession Crimes (Preparation to use counterfeit currency)
o Attempt
▪ Attempts are the stage prior to the commission of the crime, but after the
preparation for the same.
▪ Courts have interpreted attempt in different ways, meaning it to arise right
after the preparatory stage or resulting out of an unsuccessful attempt to
commit the penultimate act.
▪ Whereas in most crimes it is the actus reus, or the harmful result, which the
law desires to prevent, while the mens rea is only the necessary condition
for the infliction of punishment on the person who has produced that
harmful result, in attempt, the position is reversed.
▪ Here, it is the mens rea which the law regards as of primary importance and
desires to prevent, while a sufficient actus reus is the necessary condition
for the infliction of punishment on the person who has formed that criminal
intent.
▪ Thus, in most crimes mens rea is ancillary to actus reus and vice versa in
attempt.
▪ Voluntas Reputatur Pro Facto – a desire or intention is considered to be
same as act.
▪ Mens Rea in Attempt
• In attempt, the mens rea must be of the nature in which the person
actually intended to commit the crime, and did not merely have
knowledge of the consequences of an act.
▪ Actus Reus in Attempt
• The actus reus of an attempt to commit a specific crime is
constituted when the accused person does an act which is a step
towards the commission of that specific crime, and the doing of such
act can have no other purpose than the commission of that specific
name.
• First, an act which does not contribute to the commission of the
crime cannot be counted as part of actus reus, even though it may be
excellent evidence of mens rea.
• Evidence of acts which do not amount to a sufficient actus reus
cannot be supplemented by evidence, however, overwhelming,
which merely goes to establish mens rea.
• Robinson (Act amounting to Mens Rea, not amounting to Actus
Reus)
 o A conviction for attempting to obtain money by false
pretenses from underwriters was quashed on the ground that
there was no sufficient act on the part of the appellant
although he confessed that his object was to obtain money
fraudulently under his policy.
• Second, if the acts of the accused, taken by themselves, are
unambiguous, in that they can be regarded as pointing to nothing
other than the commission of the specific crime in question, then
they constitute a sufficient actus reus.
• Third, intervention from a third person is stopping an act that can be
said to be unequivocally pointing towards the commission of the act,
does not take away liability from the accused for attempt.
• Fourth, so long as a sufficient actus reus is attempted, it does not
matter whether it is a successful attempt or not. IF successful, it
would simply merge with the greater crime, but this does not alter
its nature.
• R v. Hensler (Attempt into Greater Crime)
o Defendant was convicted of attempting to obtain money by
false pretenses made in a begging letter written to a man,
who, knowing the pretense to be false, sent the money and
then prosecuted. Here, the attempt did not merge with the
greater crime as the money was not actually obtained based
on the false pretense.
• R v. Light (Attempt into Greater Crime)
o The accused was found guilty of attempting to obtain money
by false pretense from the prosecutor, who had not been
misled by such false pretense.
• Fifth, mistakes are of two kinds:
o Mistake of Law
o Mistake of Fact
▪ It is immaterial whether his acts were induced by a
correct knowledge of fact, or by a mistaken idea of
facts.
▪ If a man mistakenly believes that he has the means of
carrying out a crime, the fact that he actually doesn’t,
does not dissolve him of the liability of attempting
got commit a crime.
• Indian Penal Code References
o Section 511
▪ Attempt under this section has a lower threshold.
▪ Abhayanand Misra v. State of Bihar (Attempt)
• Attempt does not only involve the last act
before the commission of the offence.
 Event
Attempting
acts which Victim
are possible Law
Intervention Enforcement
External Agency
Attempt
Agency
Attempting Legal Third Party
acts which
are not
possible Factual

▪R v. MacCREA Petition (Attempt)

• There are offences in which a sufficient time
may elapse between the commencement of
attempt and the actual commission of the
offence.
• Cheating and Extortion are two such
offences.
• The attempt once begun and a criminal act
done in persuance of it towards the
commission of the act attempted, does not
cease to be a criminal attempt. Because the
person committing the offence does or may
repent before the attempt is completed.
o Section 307
▪ This imposes a higher threshold for attempt than the
previous section.

▪ Theories of Attempt
• Rule of Proximity
o The act of the accused is necessarily proximate if, though it
is not the last act that he intended to do, it is the last that is
legally necessary for him to do if the result desired by him is
afterwards brought about without further conduct on his part.
o This rule follows principles, such as, an act of attempt must
be sufficiently proximate to the crime intended, it should not
be remotely leading towards the commission of an offence,
it must contribute an antepenultimate act and that the act
done should place the accused in a relation with his intended
victim.
o For applying this test, the last act of the accused need not be
the one he intended to do but that was legally necessary for
him to do for achieving the contemplated result.
o Abhayanand Misra v. State of Bihar (Preparation and
Attempt)
▪ The accused falsely represented himself as a
graduate and applied in the university for admission
to appear in the MA examination as a private
candidate representing that he was a graduate and
that he had been teaching in certain schools.
▪ The university accepted the document, and required
him to submit the fees along with his photograph.
▪ He was permitted to appear in the examination post
issuance of an admit card.
▪ However, the authorities got to know that his
references were fake before he could give the
examination.
▪ Court explained that the attempt need not be the
penultimate act before actual commission of the
offence. Therefore, they held him liable under
Section 420 and 511 as the Court determined that the
second, he sent the fees and photograph, the attempt
was complete as per him.
o Sudhir Kumar Mukherjee v. State of West Bengal
(Preparation and Attempt)
▪ First appellant had to send a challan made by the
second appellant, a supplier of lime stone. The
former had to then send this challan to his superior
for initial and then submit it to the relevant
department to get funds for the payment of the
delivery.
▪ Superior got to know that once the appellant
submitted a challan in order to procure funds but
hadn’t actually received the goods into the stock of
the firm.
▪ Both appellants were charged under Section 120B,
420 and 511.
 ▪ The court reaffirmed the Abhayanand Misra case in
terms of criteria.
▪ Th attempt was complete when the challan was sent
to the superior to be initialized.
o State of Maharashtra v. Md. Yakub (Preparation and
Attempt)
▪ A custom officer received information that silver
would be transported illegally to some coastal areas.
▪ Some vehicles rolled up near a bridge at a particular
creek. The driver of the same removed bundles and
placed them on the ground.
▪ The officer approached the vehicle and found silver
on the footpath and heard the sound of the engine of
a sea-craft from the side of the brook.
▪ The accused were charged for attempt to export
silver illegally.
▪ The Supreme Court applied the ratio of the
Abhayanand Misra case and held it to be attempt.
o Om Prakash v. State of Punjab (Attempt to Murder)
▪ Court held that a person commits an offence under
Section 307 when he has an intention to commit
murder and in pursuance thereof doe an act towards
such a commission, regardless of whether the act is
the penultimate act or not.
▪ The Court in this case stated that:
• Expressions used in cases with regards to the
last act as constituting an attempt are not to
be taken as precise expositions of the law in
general and only apply to these specific cases.
• Rule of Impossibility
o This deals with the case where an accused attempt to commit
a crime which itself is impossible. For example, when a thief
breaks into a safe to steal jewelry, but there isn’t any jewelry
in the safe in the first place.
o R v. Shivpuri (Attempting acts which are factually
impossible)
▪ Shivpuri sold a white powdery substance to a person,
believing it to be heroin. He was caught by the police
during the sale. He confessed that he willfully sold a
substance thinking it to be heroin.
▪ The Court laid down that it was possible to have a
common mens rea for various offences.
 ▪ In the instant case, the common mens rea fell under
the aegis of the intention to deal with a prohibited
substance. This is how the Court could dole out
punishment based on what specific drug was being
dealt in at that time, while not making knowledge of
this a necessity.
▪ This is also how the Court justified punishing the
accused even when the act that was desired to be
committed was impossible in itself. It was held that
the accused had the intention to deal with heroin, and
were it not for the mishap of it being vegetable
powder, he would’ve been successful in his act.
o A legal impossibility arises when an individual is incapable
under law to commit a crime, or when the thing attempted is
attempted with a criminal intention, however it is not a
crime.
o It is also the case that attempting to do what is not a crime is
not attempting to commit a crime.
o Commonplace examples include:
▪ Bribing a person who is assumed to be a juror, but is
not,
▪ Receiving stolen goods which are, in fact, not stolen.

• Rule of Repentance – Doctrine of Locus Poenitentiae

o This states that a person attempting an offence may abandon
it at some stage before completion, although initially it had
intention.
o Locus poenitentiae means the opportunity to withdraw from
a bargain before it has become fully constituted and become
biding.
o In simple language, an act will amount to a mere preparation
fi a man on his own accord, before the criminal act is carried
out, gives it up.
o This defense only applied if by free and voluntary action the
plan of committing an offence is abandoned before such plan
is put into final execution.
o Malkiat Singh v. State of Punjab (Attempt)
▪ Accused driver and cleaner drove a truck, full of 75
bags of paddy, to the Punjab-Delhi border. He was
caught 14 miles away from the border by a barrier
post and tried under the charge of trying to export
paddy illegally from within Punjab.
 ▪Court gave them the benefit of the doubt and held
that since they had been caught 14 miles away from
the border, they could have changed their minds and
turned around at any time, and the act that would
have led up to such a reversal would’ve meant
nothing in terms of criminal liability.
▪ Thus, the test was whether the overt acts already
done are such that if the offences changes his mind,
and does not proceed further in its progress, the acts
already done would be completely harmless.
o State of Madhya Pradesh v. Narayan Singh (Preparation
and Attempt)
▪ Two lorries carrying fertilizers without license were
intercepted on the highway between MP and
Maharashtra. They were charged with the offence of
attempting to smuggle fertilizers.
▪ Supreme Court held that this case not a mere
preparation case.
▪ The stage of preparation would’ve been the
procurement of fertilizer bags and lorries. But once
they had these and proceeded towards Maharashtra,
they had attempted to commit the crime.

• Rule of Equivocality
o This suggests that an act is considered as attempt if it
indicates beyond reasonable doubt the end result is towards
which it is directed. It is actually a continuation of the rule
of proximity.
o Barker (Test of Equivocality)
▪ Lord Salmon formulated the test as an act done with
intent to commit a crime is not a criminal attempt
unless it is of such a nature as to be in itself sufficient
evidence of the criminal intent with which it is done.
The case must be one of res ipsa loquitur. An act
which is in its own nature and on the face of it
innocent is not a criminal attempt.
o Campbell & Bradley v. Ward
▪ Accused was attempting to steal the battery of the
complainant, when the latter intercepted him. The
accused tried to escape with the help of his
accomplice in a runaway car but was apprehended by
 the complainant. They were charged with attempt to
steal battery from the car of the complainant.
▪ Lord Adams held that he was bound to consider not
only the proximity of the act, but also whether it was
actus loquens. He further held, extending the
principle laid down by Lord Salmond, that this test
should not only be utilized to judge proximity but
should also be considered as a separate test in itself.
• Rule of Social Danger
o In order to differentiate between attempt and preparation,
these factors need to be considered:
▪ The seriousness of the crime attempted,
▪ The apprehension of the social danger involved.
[State v. Ghanshyam]
o This test is often applied in borderline cases of attempt and
preparation.
o State of Maharashtra v. Md. Yakub
▪ The Court took the economic impact into
consideration and said that strict interpretation
should be done because illegal smuggling has huge
negative impact on the economy of the country.
o Commission
▪ This is the stage where the crime has taken place and is the easiest to punish.
Since it is the most tangible to evidence.
▪ Commission goes through 4 different processes:
• Conceiving an intention to commit a crime
• Preparation
• Attempt to commit the crime
• Commission of the crime
▪ Generally, the first two stages are not punishable but when the process
enters the third step, criminal liability arises.
▪ This is because the first two stages are far too removed from the crime, in
that there is a very real possibility that no crime will be committed.
▪ The difficult then becomes when a particular stage starts and ends.
Abetment
o Interpretation of Abetment
▪ Indian Penal Code References
• Section 107 refers to Abetment as a crime.
o A person abets the doing of a thing, who:
▪ First – Instigates any person to do that thing,
▪ Second – Engages with one or more other person or
persons in any conspiracy for the doing of that thing,
if an act or illegal omission takes place in pursuance
of that conspiracy, and in order to the doing of that
thing,
▪ Third – Intentionally aids the doing of that thing.
• Section 108 refers to when an abetment of an offence takes place.
• Section 108A provides for the case of abetments in India of an
offence committed in a foreign country.
• Section 109 prescribes punishment for abetment when the offence
abetted is committed.
• Section 110 prescribes the punishment for abetment where the
person abetted commits the act with a different intention or
knowledge from that of the abettor.
• Section 111 provides for cases of abetment resulting in a different
offence but which is a probable consequence thereof.
• Section 112 provides for cumulative punishment in cases covered
by Section 111.
• Section 113 provides punishment in cases where the act betted
causes a different effect from that intended by the abettor.
• Section 114 provides for cases where the abettor is present at the
time of the offence, and makes him liable for the main offence and
not merely as an abettor.
• Section 115 and 116 prescribe the punishment in cases where the
offence abetted is not committed.
• Section 117 deals with abetment of offences by the public generally
or large groups of persons.
• Section 118 pescribes penalty for concealing the existence of a
design in another to commit a grave offence.
• Section 119 and 120 provide for punishment in the case of public
servants and other respectively for concealment of a design in
another person to commit the offence not covered in Section 118.
▪ Gallu Sah v. State of Bihar (Abetment)
• 22 accused persons, of whom the appellant was one, were charged
with multiple offences as part of an unlawful assembly whose
 common object was to dismantle the hut of the complainant, set fire
to it, and to commit assaulted, if there was any resistance.
• The Court upheld a conviction under Section 436 read with 109.
• It stated that the person who set fire to the hut must be one of the
persons who were members of the unlawful assembly and he
must’ve done so in consequence of the order of the present
appellant.
▪ Types of Abetment
• Abetment by Instigation
o The word means to goad, urge forward, provoke or incite a
person to do a particular act.
o This may take the form of express solicitation or of hints,
insinuations or encouragement or willful misrepresentation
concealment of a material fact.
o It is not necessary that express words or direction be issues.
o It is not necessary to prove the actual words used, although
a reasonable nexus must be proved.
o The mere omission to bring to the notice of higher
authorities, offences committed by other persons does not
amount to abetment of those offences.
o Mere failure to prevent a crime is also not abetment.
o An advice can become an instigation only if it is found that
it was an advice which was meant actively to suggest or
stimulate commission of an offence.
o Mere presence is not instigation. Silent approval, if it has the
effect of inciting or encouraging the offence would amount
to abetment.
o Queen v. Mohit (Silent Approval as Abetment)
▪ Persons who followed a woman preparing herself to
be a sati on the pyre of her husband and chanted were
held guilty of abetment by instigation to lead that
woman to commit suicide.
▪ Their approval of the woman’s participation in the
procession gave encouragement to the lady to
commit suicide.
▪ Similarly, Tejsingh v. State of Rajasthan.
o Brij Lal v. Premchand (Abetment by Instigation)
▪ Accused had married the deceased. Marriage was
unhappy as accused constantly tormented her to get
dowry and used to beat her frequently.
▪ Later, both went to one Hari Om, who told the
accused to stop tormenting her. The accused
responded by bashing the deceased, telling her to die
 that very day and go to hell. This had pushed her to
attempt to commit suicide by burning herself.
▪ Supreme Court held it to be abetment by instigation,
taking into account the factual scenario and the
impact of the words and torment that the deceased
had faced.
o In a case of abetment by instigation, it is immaterial whether
the person so instigated actually goes ahead and commits the
offence or not.
o Section 109 of the Indian Penal Code states that the
instigation must have reference to the thing that was done
and to the thing that was likely to have been done by the
person so instigated.
• Abetment by Aid
o A person is said to abet the commission of an offence, if he
intentionally renders assistance to the commission of an
offence by doing an act or omitting to do an act.
o Explanation 2 of section 107 defines abetment by aid stating
that whoever, either prior to or at the time of the commission
of an act, does anything in order to facilitate the commission
of that act, and thereby facilitate the commission thereof, is
said to ai the doing of that act.
o Fagua Kanta Nath v. State of Assam (Abetment by Aid)
▪ Complainant was taking paddy for sale, K, a police
officer, demanded bribe and threatened that unless
the money was paid the paddy would be seized.
▪ Complainant handed the money to accused, who
handed it over to K, after having counted the money.
▪ With regards to abetment by aid, the IPC requires
that there be an offence committed that was aided by
the abettor.
▪ In the present case, K was acquitted of the offence.
Hence, the Court had to acquit the accused as the
offence that was allegedly aided had not been
committed.
o Merely giving of an aid will not make the act of abetment an
offence, if the person who gave the aid did not know that an
offence was being committed.
• Abetment by Conspiracy
o A person is said to abet the commission of an offence by
conspiracy, if he enters into an agreement with one or more
persons to do a legal act by illegal means, or to do an illegal
act, and some act I done in pursuance thereof.
 o Where a criminal conspiracy amount to abetment under
Section 107, it is unnecessary to invoke the provisions of
Section 120A and 120B.
• Bimbadhar Pradhan v. State of Orissa (Abetment by Conspiracy)
o Appellant and four others were charged under Sections
120B. 409.477A and 109 for having committed the offences
of criminal conspiracy, criminal breach of trust in respect of
Government property and falsification of accounts with a
view to defraud the government.
o Appellant was District Food Production Officer and the
other four accused persons were agricultural sub-overseers
under the appellant and another agricultural sub-oversee
namely P was examined at the trial as an approver.
o There was an acquittal of the four sub-overseers by the
Sessions Judge.
o The Supreme Court held that because there was an approver
in the present case, the appellant could be held liable.
• Noor Mohammad Mohd. Yusuf Monin v. State of Maharashtra
(Abetment by Conspiracy)
o Case involved the conviction of the appellant along with
three others for the murder of the deceased with whom the
appellant had been having a dispute over the right of passage
and the right to collect water from a tap nearby.
o On appeal the accused and the two others were convicted
under Section 302 read with Section 34 and additionally, the
appellant was also convicted under Section 302 read with
Section 109.
o Supreme Court held that Section 109 may be attracted even
if the abettor is not present when the offence abetted is
committed, provided that he has instigated the commission
of the offence or has engaged with one or more persons in a
conspiracy to commit an offence and pursuant to that
conspiracy some act or illegal omission takes place or has
intentionally aided the commission of an offence by an act
or illegal omission.
• Section 34 requires all the elements of Section 109, and additionally,
requires active participation.
Conspiracy
o Justice Felix Frankfurter
▪ The danger which a conspiracy generates is not confined to the substantive
offence which is the immediate aim of the enterprise.
▪ This is because of several factors:
• Collective criminal agreement presents a greater potential threat to
the public than individual delicts.
• Concerted action both increases the likelihood that the criminal
object will be successfully attained and decreases the probability
that the individuals involved will depart from their path of
criminality.
• The danger of a conspiratorial group is not limited to the particular
end toward which it has embarked. Combination in crime makes
more likely the commission of crimes unrelated to the original
purpose for which the group was formed.
o Interpretation of Conspiracy
▪ It is defined as a secret plan or an agreement by a group to do something
unlawful or harmful.
▪ Poulters’ Case (Conspiracy)
• Defendant poulters had confederated to bring against one, Stone, a
false accusation of robbery; but Stone was so manifestly innocent of
the crime charged that the grand jury refused to indict him.
• The Court of Star Chamber decided that confederating together
constituted the gist of the offense rather than the dales indictment
and subsequent acquittal. (Conspiring itself constituted the offence
and there was no need to look towards malicious prosecution.)
▪ By this case, it was further established that since the gist of the crime itself
was a conspiracy, there was no need for an overt act tot be committed by
this confederating group for them to be held liable.
▪ Some scholars have viewed the law in the criminal conspiracy as an
outgrowth of the larger law of criminal attempts.
▪ However, every criminal conspiracy is not an attempt. One may be guilty
of conspiracy long before his act has come so dangerously near to
completion as to make him criminally liable for the attempted crime.
▪ For example, a mere conspiracy to kill Donald Trump taking place in India
could not possibly constitute attempt but would constitute an offence under
criminal conspiracy.
▪ Another development that took place was that courts took upon themselves
to punish conspiracies which committed not only illegal acts, but also
immoral acts. The idea that a combination may be criminal, although its
object would not be strictly criminal apart from the combination itself, first
began to take articulate form towards the close of the 17th century.
 ▪ It is here that conspiracy started covering both illegal acts, and legal acts
done by illegal means.
▪ However, if neither of the two objects is the reason why a combination has
formed, the debatable question lies in whether even then a conspiracy will
be held liable merely because it is an act of combining. There is no clear
answer.
o Conspiracy under the Indian Penal Code
▪ Originally, the Indian Penal Code only made conspiracy punishable in two
forms, conspiracy by way of abetment and conspiracy involved in certain
offences.
▪ In the former case, an act or illegal omission must take place in pursuance
of conspiracy in order to be punishable.
▪ The latter is a conspiracy by implication and the proof of membership is
enough to establish the charge of conspiracy.
▪ In 1870, the law of conspiracy was widened by the addition of Section 121A
which defined conspiracy as:
• A conspiracy to commit an act under Section 121 or to overthrow
the government by means of criminal force or the show of criminal
force is punishable. But to constitute a conspiracy in such a case, it
is not necessary that any act or illegal omission should have taken
place.
• Thus far, there was a requirement of an overt act except for the
offences now particularized by Section 121A.
▪ In 1913, the Indian Criminal Law Amendment Act was passed which
further expanded the law of conspiracy by adding Section 120A and 120B.
▪ Now, criminal conspiracy under the Indian Penal Code is dealt with in the
following terms:
• Where overt act is necessary
o Where two or more people agree to do or cause to be done
an illegal act excluding the commission of an offence,
o Where an act which Is not illegal is done by illegal means,
o Conspiracy by way of abetment.
• Where agreement per se is punishable
▪ Under Section 120A, there are two essential ingredients of criminal
conspiracy:
• Agreement between two or more persons,
• The object of such is to commit an illegal act or a legal act by illegal
means.
▪ State of Maharashtra v. Somnath Thapa (Conspiracy)
• To establish the charge of conspiracy, knowledge about indulgence
in either an illegal act or a legal act by illegal means is necessary.
• In some cases, intent of unlawful use being made of the goods or
services in question may be inferred from knowledge itself.
 • Finally, when the ultimate offence consists of a chain of actions, it
would not be necessary for the prosecution to establish, to bring
home the charge of conspiracy, that each of the conspirators has to
know of what the collaborator would do, so long as it is known that
the collaborator would put the goods or services to an unlawful use.
▪ Difference between criminal conspiracy and civil conspiracy
• In criminal law, agreement is taken to be the actus reus required for
punishment.
• In civil law, an overt act is required to be held liable.
o Principles of Criminal Conspiracy
▪ State v. Nalini
• Rajiv Gandhi Assassination Case
• Justice Wadhwa summarized ten principles of criminal conspiracy,
not exhaustive:
o Agreement between two or more person to do an illegal act
or a legal act by illegal means. Not only intention but there
has to be an agreement to carry out the object of the
intention, which is an offence.
o Acts subsequent to the achieving of object of conspiracy
may tend to prove that a particular accused was party to the
conspiracy.
o Conspiracy is hatched in privacy or in secrecy. It is rarely
possible to establish a conspiracy by direct evidence.
o Conspirators may join on a chain enrollment basis with each
original member enrolling individuals knows only the
person who enrolled him and the person whom he enrolls.
There may be an umbrella figure enrolment as well, where a
single person at the center doing the enrolling and all the
other members being unknown to each other, though they
know that there are to be other members. While these may
exist, there always has to be a mutual interest regardless of
the knowledge or the extent of active role each and every
individual play.
o To prove the charge of conspiracy, it is not necessary that
the intended crime be committed. IF committed, it may
further help the prosecution in proving the charge of
conspiracy.
o It is not necessary that all conspirators should agree to a
common purpose at the same time. They may join with other
conspirators at any time before the consummation of the
intended objective, and all are equally responsible. What part
each is to play may not be known to others.
 o Prosecution has to produce evidence not only to show that
each of the accused has knowledge of object of conspiracy
but also of the agreement.
o Offence of conspiracy is complete even though there is no
agreement as to the means by which the purpose is to be
achieved.
o It is said that a criminal conspiracy is a partnership in crime,
and that there is in each conspiracy a joint or mutual agency
for the prosecution of a common plan. Thus, the liability is
joint. However, a conspirator would not be liable for the acts
of a co-conspirator after the conspiracy has ended.
o A person may join a conspiracy by word or by deed. One
who commits an overt act with knowledge of the conspiracy
is guilty. And one who tacitly consents to the object of a
conspiracy and goes along with other conspirators, actually
standing by while the others put the conspiracy into effect,
is guilty though he intends to take no active part in the crime.
o Interpretation of Agreement
▪ Mulcahy v. R (Agreement as Actus Reus)
• When two or more people agree to carry an intention into effort, the
very plot is an act in itself and the act of each of the is punishable if
for a criminal object or for the use of criminal means.
• Therefore, the act of the agreement itself being the actus reus was
born.
▪ Agreement simply means consensus among two or more people.
• Express – Oral or written communication
• Implied – Manifestation of conduct
▪ Mere knowledge of a conspiracy is not sufficient, there has to be consent to
the plan to attract liability. [State of Maharashtra v. Som Nath Thapa]
o Continuing Offence
▪ A conspiracy is a continuing offence which continues to subsist till it is
executed or rescinded or frustrated by choice or by necessity.
o Mutual Agency
▪ Bhagwan Swaroop Lal Bishan Lal v. State of Maharashtra
• Held that under Section 10 of the Evidence Act, anything said, done
or written is a relevant fact for the purpose of proving the existence
of the conspiracy and the conspirators who are members of the same.
▪ Liability is also not confined to the original goal but extends to all incidental
and collateral incidents arising out of the main goal.
o Method of Proof
▪ The prosecution need not necessarily prove that the perpetrators expressly
agreed to do or cause to be done an illegal act; the agreement may be proved
by necessary implications.
 ▪ There are two ways to prove:
• Direct Evidence
• Circumstantial Evidence
o This is based on the premise that every incriminating thing
must be established cogently and only one hypothesis can be
drawn which conclusively points towards the guilt of the
accused.
▪ It is not necessary that actual communication be proved, but it is sufficient
if transmission of thoughts or unlawful design is proved.
▪ It is also not essential for agreement that the members of conspiracy know
each member or know the full plan of the conspiracy.
▪ Yamuna Singh v. State of Bihar (Circumstantial Evidence)
• A professor was killed under a conspiracy by some persons in whose
premises he was living because of his reaction against their immoral
conduct.
• The conviction of the accused persons was upheld on the ground
that the evidence of the approver was trustworthy and was
corroborated on material particulars by other witnesses.
o Liability
▪ Conspiracy is a substantial offence in the IPC and also a form of abetment.
▪ A person may be indicted alone for conspiring with persons who are
unknown, dead, uncaught, incapable of committing a crime or have been
pardoned.
▪ Where all the accused except one was acquitted, the Supreme Court ordered
his acquittal as well (Vinayak v. State of Maharashtra).
▪ CBI v. V.N. Shukla (Acquittal of Sole Conspirator)
• Alleged that Jain brothers had bribed politicians from different
parties to obtain favors in matter of certain contracts.
• The Supreme Court held that evidence could not prove that two
politicians were parties to it. Therefore, since only one party, the
Jain brothers, was left in the conspiracy, it was held to be
unsustainable.
▪ Any act that is done in furtherance of the plan that is agreed to also forms
the basis of liability for conspiracy.
• For example, if in the pursuit of robbing a bank, C kills the guard of
the bank, A and B, his co-conspirators, will also be held liable for
the same.
• If C decided to rape E in the middle of the robbery, then such an act
is disconnected from the original plan and main purpose and thus,
does not make A and B liable.
Module 5 – Offences Relating to Marriage
Offences Relating to Marriage in the Indian Penal Code
o Section 497 – Adultery
o Section 494 and 495 – Bigamy
o Section 498A – Cruelty by Husband or the Relatives of the Husband
o Section 304B – Dowry Death
o Section 498 – Elopement - Seduction
o Section 493 and 496 – Fraudulent Marriages
Cruelty
o Abuse meted out to women can be segregated into:
▪ Physical Abuse – Rape, Dowry Death, Assault, Grievous Hurt, Elopement
or False Marriages
▪ Mental Abuse – False Promises of Marriage, Threats, Bigamy, Dowry
Demands
o The second amendment to the Criminal Law Act, 1983 inserted Chapter XXA in
the IPC, before which these offences were governed by the general principles of
the IPC.
o The Parliament felt like to tackle the menace of abuse against women, especially
married women, a comprehensive change had to be brought about. It envisioned
the same in three ways:
▪ By defining the substantive offence of cruelty to women by husband and
relatives,
▪ By introducing procedures which made the investigation mandatory in
certain cases of death,
▪ By changing the provisions of the Evidence Act to expedite the process of
conviction of the accused.
o Relevant Provisions for Cruelty
▪ Section 498A - IPC
▪ Section 304B - IPC
▪ Section 174 – CrPC
▪ Section 113B – IEA
o Interpretation of Cruelty
▪ Section 498A defines what is cruelty:
• Any willful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (mental or physical) of the woman; or,
• Harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.
▪ Nature of Acts constituting Cruelty
• Physical Cruelty
 • Mental Cruelty
▪ The alleged act of cruelty must be such that the it would be difficult for the
other spouse to put up with any longer. [Jacobs v. Jacobs (Conn.)]
▪ Moonshee Bazloor Rubeem v. Sahmsoonnissa Begum (Cruelty)
• For cruelty to take place there must be actual violence of such
character as to endanger personal health or safety; or there must be
a reasonable apprehension of it.
▪ Mayadevi v. Jagdish Prasad (Cruelty)
• The Supreme Court laid down that to constitute cruelty, the act
complained of should be grave and weighty so that the petitioner
spouse arrives at a conclusion that he/she cannot reasonably be
expected to live with the other spouse.
▪ Dastane v. Dastane (Cruelty)
• The alleged act must be more serious than the ordinary wear and tear
of married life.
▪ In this way, the law rules out the trivialities, temperamental disharmony or
minor incompatibilities.
▪ The act being complained about must also not be looked at in isolation. One
has to consider the circumstances and the background, including social
status, mental conditions, education, customs, and traditions, of the parties
and the society they live in.
▪ Since cruelty is a ground for divorce, the complainant applying for divorce
must show that the act complained of is of such a nature as to satisfy the
conscience of the Court that the relationship between the spouses have
worsen to such an extent that they can no longer live together without severe
distress.
o Acts Constituting Cruelty
▪ Samar Ghosh v. Jaya Ghosh (Acts which amount to Cruelty)
• The Supreme Court held there can never be any straightjacket
formula or fixed parameters for determining mental cruelty in
matrimonial matters.
▪ Nonetheless, a few instances decided by the Supreme Court may be
highlighted:
• Sustainable unjustifiable conduct and behavior of one spouse
adversely affecting the physical and mental health of the other
spouse. This should, however, be at a higher degree of intensity.
• Conduct which makes it abundantly clear that it is not possible for
one spouse to put up with another.
• Sustained humiliating or abusive approach calculated to torture,
leading to mental cruelty.
• Total neglect or indifference towards the spouse or a total departure
from the normal standards to a conjugal relationship causing mental
 injury and deriving sadistic pleasure may also amount to mental
cruelty.
• Prolonged period of not sharing bed or refusal to have intercourse
for a considerable time without there being any physical incapacity
or valid reasons may amount to cruelty.
• Constant nagging by the husband or the relatives in relation to
dowry may amount to mental cruelty.
• If there is a prolonged period of separation, an adverse conclusion is
drawn; the relationship cannot be mended.
• Threatening to make the other spouse lose his/her job, beating the
child while the child was running a very high fever amounts to
mental cruelty.
• Tearing off the mangal-sutra and vowing to never put it on again
amounts to mental cruelty.
• Switching on the light at midnight without any reason and constantly
nagging him throughout the night amounts to cruelty.
▪ Cruelty is not just one act, it is a series of conduct.
o Who Commits Cruelty?
▪ Section 498A restricts the offence of cruelty being committed to either by
the husband or the relatives of the husband. Thus, apart from the acts
constituting cruelty, the actors form an essential ingredient of the offence
because the said provisions are only in relation to a married woman.
▪ The first actor is the husband.
• The only requirement to bring a claim against the husband is that
there should be a valid marriage.
▪ The second actor is the relative of the husband.
• A relative would be a father, mother, son, daughter, grandfather,
grandson, uncle, aunt, etc.
• The major point of contention is whether a concubine or a girlfriend
or a second wife can be regarded as a relative.
▪ Concubine or Girlfriend as Relative
• U. Suvetha v. State (Girlfriend as Relative)
o The Supreme Court held that a girlfriend or a concubine
cannot be regarded as a relative since the word relative
convers under its ambit a status and that such a status is
achieved only by blood, marriage or adoption.
o Thus, if no marriage takes place, Section 498A cannot be
invoked.
• Rejeti Laxmi v. State of Andhra Pradesh and Swapnaja v. State of
Maharashtra (Concubine as Relative)
o Holding that a concubine cannot invoke Section 498A as she
is not a relative of the man.
▪ Second Wife as Relative
• Reema Aggarwal v. Anupam (Second Wife and 498A)
o Second wife married Anupam. Reema, first wife, was
harassed by husband and his relative for not bringing dowry.
o Supreme Court rejected the non-applicability of Section
498A and held that there could be no impediment in law to
liberally construe the words and expressions relating to the
persons committing the offence so as to rope in not only
those validly married but also anyone who had undergone
some or other form of marriage and thereby assumed for
himself the position of husband to live, cohabitate and
exercise authority as such husband over another woman.
o The Supreme Court reasoned its judgement on the ground
that any person who enters into marriage cannot shelter
himself and contend that there was no legal marriage.
• John Idiculla v. State of Kerala (Application of 498A to Second
Wife)
o Three questions raised:
▪ Can the so-called second wife be treated as a relative
who married during the subsistence of the man’s first
marriage?
▪ If so, under what circumstances?
▪ Does an offence under 498A lie against such a
second wife if she inflicts cruelty on the first wife?
o High Court states all three questions in the affirmative.
o It rules that if the second wife whose marriage is not strictly
legal but is treated as wife by the husband, relatives, friends
and society and she commits cruelty against the first wife,
then she cannot escape liability.
o It reasoned that the invalidity of marriage can under no
circumstances be granted as a license to a second wife to
harass the first wife.
• Sunita Jha v. State of Jharkhand (Current Position of Second Wife
and 498A)
o Supreme Court reinstated the original position and explicitly
held that the woman who is in a live-in relationship with then
husband of the complainant could not be considered to be
the relative of the husband and that no case under Section
498A would be made out even if the concubine was a part of
inflicting cruelty against the first wife.
o The Court stressed on the strict interpretation of 498A.
• Kantilal Martaji Pandor v. State of Gujarat (Misuse of 498A)
 o The Supreme Court laid down that the accused must not be
held guilty of any cruelty if there is no evidence of any
physical or mental harm caused to the victim.
• Sushil Kumar Sharma v. Union of India (Misuse of 498A)
o The Supreme Court said that the object of the provision was
to prevent the menace of dowry.
• Akhilesh Mishra v. State of Uttar Pradesh (Misuse of 498A)
o Deceased husband left behind a huge sum of around 21 lacs.
The company where the deceased was working did not
release the said money for want of succession certificate.
Both the wife and the mother of the deceased applied for the
certificate. The wife in order to get all the money, instituted
false claims against her in-laws and registered a FIR.
o It was held that the FIR was based on extraneous
considerations and ulterior motives to coerce her in-laws to
succumb to her demand of getting the certificate in her favor.
o Survival of Marriage in Case of Cruelty
▪ Application of an idea couple or a reasonable man test
• The Courts have laid down that there could not be any reasonable
man test to determine whether a certain act would amount to cruelty.
• Dastane v. Dastane (Subjectivity of Cruelty)
o The Supreme Court clarified that this is a matrimonial issue
and thus the reasonability test as applied in the tort of
negligence will not be applicable here.
o Cruelty is subjective, and therefore, what may be cruel to
someone may be laughed at by another.
▪ Dealing with each individual case
• Collins v. Gollins (Subjectivity of Cruelty)
o Lord Reid said that in matrimonial cases, we are not
concerned with the reasonable man.
o Every case must be dealt with individually taking into
account the personal preferences of the parties, their
temperaments, habits and hobbies.
o The court cannot treat the couple as an ideal couple, which
is in a way an ideal couple would deal with a particular
situation.
▪ Widening the doors of Cruelty
• Widening the scope of cruelty too far would, in the words of Lord
Denning, result in granting divorce for incompatibility and
temperament and that the temptation must be resisted lest we slip
into a state of affairs where the institution of marriage itself Is
imperiled.
Dowry Death
o Interpretation of Dowry
▪ Section 2 of the Dowry Prohibition Act, 1961
• Any property of valuable security given or agreed to be given either
directly or indirectly:
o By one party of a marriage to another,
o By the parents of either party to a marriage or by any other
person, to either party to the marriage or to any other person.
o At or before or any time after the marriage in connection
with the marriage of said parties but does not include dower
or mahr in the case of persons to whom the Muslim Personal
Law (Shariah) applies.
• Any valuable security has been defined in Section 30 of the Indian
Penal Code.
o The words “valuable security” denote a document which is,
or purports to be, a document whereby any legal right is
created, extended, transferred, restricted, extinguished or
released, or where by any person acknowledges that he lies
under legal liability, or has not a certain legal right.
▪ Dowry is prohibited as of Section 3 and 4 of the Dowry Prohibition Act,
1961.
▪ Section 304B deals with Dowry Death
• Where the death of a woman is caused by any burns or bodily injury
or occurs otherwise than under normal circumstances within seven
years of her marriage and it is shown that soon before her death she
was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for
dowry, such death shall be called “dowry death”, and such husband
or relative shall be deemed to have caused her death.
• Whoever commits dowry death shall be punished with imprison-
ment for a term which shall not be less than seven years but which
may extend to imprisonment for life.
▪ Components of Dowry Death
• Burns or bodily injury,
• Leading to unnatural death within 7 years of marriage,
• Subjected to cruelty or harassment soon before death,
• Such cruelty or harassment must be meted out by the husband or his
relatives,
• Such cruelty or harassment must be made in demand off dowry.
▪ Surinder Singh v. State of Haryana (Landmark on Dowry Death)
• Deceased, Anita, was married to accused husband. She was
mistreated by him in various ways, including taunting and beating.
This was because the husband, his parents and uncle were not
 satisfied with the quality and quantity of dowry. She was beaten and
starved to death. The accused husband ultimately set her on fire.
• The evidence, including the fact that the death happened within 94
days of the marriage, pointed towards conviction. This is what the
Supreme Court upheld.
▪ Soon before Death
• Both Section 304B of the IPC and Section 113B of the IEA make
the cruelty occurring soon before death an essential ingredient.
• Kans Raj v. State of Punjab (Soon Before)
o Held that the term ‘soon before’ is a relative term which is
required to be considered under the specific circumstances
of each case and that no straightjacket formula could be laid
down to determine any time period.
o This statement by the Court gave rise to the proximity rule.
o It clarified that soon before should not be misconstrued with
immediately before as the former term contemplates a
reasonable time which should be understood under the
circumstances of each case.
o It also clarified that the cruelty and harassment should be
known to have persisted provided no such intervening
instances showing the non-existence of such treatment was
brought on record.
o Mere discontinuance of cruelty for a short period would not
help the husband escape liability if his conduct relating to
such cruelty is shown to have existed not too long before the
death.
▪ Demand of Dowry
• Appasaheb v. State of Maharashtra (Demand for Dowry or Family
Financial Crisis)
o Deceased was married to accused husband two and a half
years before death. Alleged that she was beaten and demands
for money were made which resulted in her consuming
poison and dying.
o The evidence, however, showed that the demand was made
to meet the expenses for manure etc.
o The Supreme Court held that such a demand was made on
account of a financial crisis or meeting an urgent domestic
emergency and that is would not fall under the definition for
dowry.
• Vipin Jaiswal v. State of Andhra Pradesh (Demand for Dowry)
o Supreme Court held that demand for money made six moths
after marriage by the husband to purchase a computer and
setting up his own business was not a demand for dowry.
 o Hence, the relation between the cruelty and harassment and
the death caused must strictly be in relation to a demand for
dowry.
▪ Circumstantial Evidence – Beyond Reasonable Doubt or Presumption of
Guilt
• Shree Ram Sharma v. State of Uttar Pradesh (Circumstantial
Evidence)
o Appellant accused of setting ablaze wife for bringing
insufficient dowry.
o Appellant argued that the fire was caused by a mishap, where
the wife was making tea and her saree caught fire.
o Death was caused before the addition of Section 304B. In
such a case, the tool of presumption could not be availed of
and the case would have to be tried as any other normal
criminal case based on beyond reasonable doubt guilt.
o Court laid down five golden principles constituting proof of
a case based on circumstantial evidence:
▪ Circumstances from which guilt is drawn must be
fully established,
▪ Facts established should be consistent only with the
hypothesis of the guilt of the accused.
▪ Circumstances should of a conclusive nature and
tendency.
▪ Should exclude every possible hypothesis except the
one due to be proved,
▪ Chain of evidence must be so complete as to not
leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show in all human probability the act must have
been done by the accused.
o In the present case, these were not satisfied. Accused was
acquitted.
▪ Abetting a married woman in committing suicide
• In the absence of any evidence that the husband abetted the suicide
committed by his wife, the husband cannot be convicted under
Section 306 of the IPC.
• Section 113A raises a presumption of guilt reading:
o When the question is whether the commission of suicide by
a woman had been abetted by her husband or any relative of
her husband and it is shown that she had committed suicide
within a period of seven years from the date of her marriage
and that her husband or such relative of her husband had
subjected her to cruelty, the court may presume, having
regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative
of her husband.
Bigamy
o When Monogamy is a rule, Polygamy is an offence. [Section 494 and 495 of the
Indian Penal Code]
o Indian Penal Code References
▪ Section 494
• Whoever, having a husband or wife living, marries in any case in
which such marriage is void by reason of its taking place during the
life of such husband or wife, shall be punished with imprisonment
of either description for a term which may extend to seven years,
and shall also be liable to fine.
• Exception — This section does not extend to any person whose
marriage with such husband or wife has been declared void by a
Court of competent jurisdiction, nor to any person who contracts a
marriage during the life of a former husband or wife, if such husband
or wife, at the time of the subsequent marriage, shall have been
continually absent from such person for the space of seven years,
and shall not have been heard of by such person as being alive within
that time provided the person contracting such subsequent marriage
shall, before such marriage takes place, inform the person with
whom such marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.
▪ Section 495
• Whoever commits the offence defined in the last preceding section
having concealed from the person with whom the subsequent
marriage is contracted, the fact of the former marriage, shall be
punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
o Ingredients of Bigamy
▪ Accused must have contracted first marriage.
▪ Second marriage should be contracted during the subsistence of the first
marriage.
▪ Both the marriages must be validly contracted in the sense that all the
necessary rites and ceremonies required by the personal law governing the
parties have been undergone.
o Accused must have contracted the first marriage
▪ Gopal Singh v. State of Rajasthan (Bigamy)
• Accused was married to first wife and also had a kid. They fell apart
and parted ways. During the subsistence if the first marriage,
husband married another woman.
• The husband was from a community where a second marriage was
recognized and prevalent as a custom. It was also considered a valid
marriage in that community.
• Thus, for the purpose of the case the husband brought forth two
points:
 o In view of Section 17 of the Hindu Marriages Act, the second
marriage that is contracted during the subsistence of the first
marriage is void.
o In view of this section, section 494 cannot be invoked.
• The Court rejected these arguments and held that Section 494 comes
into picture only when the second marriage becomes void by virtue
of the fact that it had taken place during the subsistence of the first
marriage. Thus, the mere fact that the second marriage is void under
the Hindu Marriage Act does not mean that Section 494 will not be
applicable.
• Accused was rightly convicted for bigamy.
▪ Second marriage must be contracted during the subsistence of the first
marriage
• The above case also functions as a landmark case in this regard.
• The other two cases which set this precedent are Sarla Mudgal v.
Union of India and Lily Thomas v. Union of India.
• Both these cases function as landmark judgements for this
ingredient.
▪ Both marriages must be validly contracted
• The second marriage must be solemnized during the subsistence of
the first marriage.
• Bhauao Shankar Lokhande v. State of Maharashtra (Solemnized)
o According to the Oxford Dictionary, the word solemnized
means to celebrate the marriage with proper ceremonies and
in due form.
o It means that the necessary ceremonies required by law or
custom must be duly performed failing which it can be said
that no marriage has taken place.
o Thus, once it is proved that the second marriage has been
contracted validly and duly solemnized, during the
subsistence of the first marriage, Section 494 comes into
play.
• Gopal Singh v. State of Rajasthan (Solemnized)
o It was held by the Supreme Court that the custom governing
the nata marriage and the two essential ceremonies of the
same had been fulfilled in the present case.
▪ Husband should take a pitcher full of water from the
head of the prospective wife,
▪ Wife should wear chura by the husband.
o Moreover, the evidence of the witnesses proved that these
ceremonies had taken place.
 • Baby v. Jayant Mahadeo Jagtap (Solemnized)
o It was held that a Hindu marriage would also include a
Buddhist marriage which may be celebrated according to
customary ceremonies and rites.
o In order for a ceremony or rite to be customary, it must be
practiced by the community for a prolonged period of time
without any discontinuance.
o In this case, a group of people belonging to the SCs
converted to Buddhism and adopted a new form of marriage.
Not only were these marriages validly contracted but were
also solemnized in this new form and ceremonies of
marriage.
o Since these new forms were granted validity, and the second
marriages done here were done during the subsistence of the
first marriages, Section 494 was invoked.
▪ Effect of Conversion
• Prior to the enactment of the Hindu Marriage Act, a Hindu male
could practice polygamy. After the enactment, he could only
practice monogamy.
• Muslim Law, however, allowed up to four marriages.
• This freedom prompted unlawful conversions for the purpose of
circumventing the restriction of monogamy.
• There was mainly a two-fold motive
o To disregard the first marriage and consider it dissolved as a
result of such conversion,
o To escape law under the garb of practicing religion and
contracting marriage with a person of a different religion.
• Sarla Mudgal v. Union of India (Conversion for Marriage)
o This case dealt with the following questions:
▪ Whether a Hindu husband married under Hindu law,
by embracing Islam solemnized the second
marriage?
▪ Whether such a marriage without having the first
marriage dissolved under law, would be a valid
marriage qua the first wife who was a Hindu?
▪ Whether the apostate husband could be held liable
under Section 494?
o The Supreme Court answered the first question in the
negative.
o The Supreme Court answered the second question in
negative.
o The Supreme Court answered the third question in the
affirmative.
 o The Supreme Court added that there was no authority under
the Hindu Law which said that an apostate is absolved of all
civil and matrimonial liabilities because of a conversion.
o Dissolution of the first marriage to enable a convert to
remarry was put as a condition precedent so that the rights
of the victim spouse are not prejudiced.
• The accused generally takes a defense under Article 25 of the
Constitution. The counter to this lies in Article 44 which is based on
the concept that there is no necessary relationship between religion
and personal law in a civilized society.
• Lily Thomas v. Union of India (Breach of Fundamental Rights)
o Contentions were raised against the Surla Mudgal judgment
for being in violation of article 21 and 25 of the Constitution.
o The case brushed past these contentions and held that people
could not cloak themselves under fundamental rights and
that this anyway did not violation article 21.
▪ Non-disclosure of the first marriage
• Section 495 of the IPC subjects the perpetrators of 494 of a severe
punishment if they conceal the fact that the first marriage is still
subsisting while contracting the second marriage.
• Concealment of such a kind is an aggravating circumstance.
• This renders the spouse to whom such an information is concealed
as an aggrieved person under Section 198 of the code of Criminal
Procedure.
▪ Girlfriend/concubine or mistress
• These circumstances are not enough to invoke 494 as there is no
marriage and the girlfriend, concubine or mistress do not enjoy the
status of a wife.
Mock Marriage
o Interpretation of Mock Marriage
▪ The name itself suggests that the same is just a simulation of an original and
valid marriage. Hence, it is neither original nor valid.
▪ Indian Penal Code References
• Section 493
o Every man who by deceit causes any woman who is not
lawfully married to him to believe that she is lawfully
married to him and to cohabit or have sexual intercourse with
him in that belief, shall be punished with imprisonment of
either description for a term which may extend to ten years,
and shall also be liable to fine.
• Section 496
o Whoever, dishonestly or with a fraudulent intention, goes
through the ceremony of being married, knowing that he is
not thereby lawfully married, shall be punished with
imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
▪ Ingredients of Mock Marriage
• Deceit or fraudulent intention
• Causing false belief of marriage
• Cohabit or have sexual intercourse
▪ Deceit or fraudulent intention
• Re Abdul Khader (Deceit of Marriage)
o One of the most important elements of this offence is that the
accused must have practiced fraud or deception on the
woman which led her to believe that she is lawfully married
to him while in reality she is not.
• Kan Subrahmanyam v. J. Ramalakshmi (Intention to Deceive)
o It is important that while conducting such marriages a
dishonest intention exists.
• Raghunath Padhy v. State of Orissa (No Bona Fide Impression)
o If both parties undergo marriage ceremonies under a bona
fide impression, the Section 496 is not attracted even if they
believed that it was a lawful marriage whereas in reality it
wasn’t.
• Adi v. State (Knowledge of Deceit/Active Deceit)
o Accused was a distant relative of the victim girl who was
seventeen years old and used to visit her house. Many times,
he met her in seclusion and tried luring her into sexual
intercourse, she refused.
 o One day, her parents were not at home and he promised to
marry her in front of a deity. Pursuant to this, they got
married.
o When the accused was prosecuted, he admitted that he did
not intend to marry her and only meant to have sexual
intercourse. Accused was charged under Section 496.
▪ Causing a false belief
• If the woman knows that the marriage is not a valid one and allows
a man to have sexual intercourse with her, then no offence under
496 has been committed. [Amruta Gadtia v. Trilochan Pradhan,
Abhay Kumar v. State]
• While performing any act symbolizing marriage, the animus, or
intent, of the parties would be looked at whether they had the
intention to marry and accept each other as husband and wife. Mere
performance of ceremonies is not sufficient.
▪ Cohabit or have sexual intercourse
• Look at Adi v. State for reference.
Criminal Elopement and Seduction
o Interpretation of Criminal Elopement and Seduction
▪ Indian Penal Code References
• Section 498
o Whoever takes or entices away any woman who is and
whom he knows or has reason to believe to be the wife of
any other man, from that man, or from any person having the
care of her on behalf of that man, with intent that she may
have illicit intercourse with any person, or conceals or
detains with that intent any such woman, shall be punished
with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
▪ It has been argued for the abolition of 498 as well as 497 (Adultery) for the
reason that a person must be free to be in a relationship with anyone whom
they want and that marriage or society must not prove to be a shackle in
enjoying this freedom. It has also been argued that these sections treat the
wife as the property of the husband, and it is this very perception that such
an abolition would end.
▪ Essential Ingredients of Criminal Elopement and Seduction
• Takes or entices away
• Married woman
• Knowledge
• Taken from the control of the original husband or the person taking
care of her on her behave
• Intention to have illicit intercourse
• Conceals or detains any such person
▪ Alamgir v. State of Bihar
• Wife of the complainant disappeared from his house one day and
was found in the house of the accused. Accused argued that the wife
was dissatisfied with the husband and left the house of her own free
will.
• Takes or entices away
o Supreme Court held that the accused offered to marry the
wife and thereby persuaded her to leave the house of the
husband.
o The Court clarified that while the wife was dissatisfied, the
evidence held that she must have been encouraged or
induced not to go back.
o The words ‘takes or entices away’ envisages all situations of
elopement notwithstanding whom the proposal first came
from. Section 498 would be applicable as long as the wife is
maintained by the husband.
• Married woman
o Provision requires the woman in question must be a married
woman.
• Knowledge
o It is necessary that the person so taking a woman away have
knowledge of the valid marriage of the woman.
• Taken from husband or someone taking care of her
o This provision intends to protect the rights of the husband
and not the wife.
o It refers to the deprivation of the husband of his custody and
proper control over his wife. (Not my words.)
o Where a wife is turned out of her matrimonial home by her
husband and she then runs away with another man and
married him, such a man with whom the wife has gone away
with would not be penalized under this section. [Ram
Narayan Baburao Kapor v. Emperor]
• Intention to have illicit intercourse
o The requirement of mens rea in this section is with regards
to having intention to have illicit sexual intercourse. If it is
otherwise, this section cannot be invoked.
• Conceals or detains any such person
o This section is also applicable to any person who conceals or
detains a married woman with the intention that she should
have illicit intercourse with a person.
o The word detention is ejusdem generis with enticement and
concealment. It does not imply that the woman is being kept
against her will but there must be evidence to show that the
accused did something which had the effect of preventing
the woman from returning to her husband. [Prithi Missir v.
Harak Nath Singh]
• Who can complain?
o As per section 154 of the Code of Criminal Procedure, any
person who has information about the commission of a
cognizable offence can lodge a complaint and set the law in
motion.
o However, offences of marriage are non-cognizable offences.
o Thus, only an aggrieved person is able to submit a case under
this section.
o If an aggrieved is not able to do so, any other person may do
it upon obtaining the leave from the Court.
o If the husband is serving in the army, he could authorize
someone to file a claim on his behalf.
o Tuntun Shah v. State of Bihar (Who can file a complaint?)
▪ Uncle of the victim could not file a complaint as he
was not an aggrieved party.
o If an offence of bigamy is committed, the wife is an
aggrieved party. Her father, mother, brother, sister, son and
daughter and other relatives can also file a complaint on her
behalf.
Adultery (Moral Crime v. Legal Crime)
o Interpretation of Adultery
▪ Indian Penal Code References
• Section 497
o Whoever has sexual intercourse with a person who is and
whom he knows or has reason to believe to be the wife of
another man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape,
is guilty of the offence of adultery, and shall be punished
with imprisonment of either description for a term which
may extend to five years, or with fine, or with both.
o In such case the wife shall not be punishable as an abettor.
▪ Essential Ingredients
• Sexual intercourse
o Preparatory acts cannot be convicted.
o If the wife goes to husband’s friend’s house with the
intention of having sex but is caught by the husband, the
friend cannot be punished.
o Thus, intercourse must take place with a married woman.
o Bandhana Deepika v. State of Andhra Pradesh (Adulterous
as Victim)
▪ Complainant wife alleged that husband committed
adultery with his distant relative and husband
threatened her when complained about the same.
▪ Wife tried to rope in adulterous woman as in the suit
but could not do so as the adulterous woman is also
regarded as a victim under Section 497.
o There cannot be any direct evidence of this offence and thus,
the Courts must rely in circumstantial evidence.
• Married woman
o Section 50 of the IEA provides that where marriage is an
ingredient in offences, such as bigamy or enticement, the
fact of marriage must be strictly proven.
• Knowledge
o The accuse must know that he is having sex with a married
woman. He could also have reasons to believe for the
purpose of a conviction.
• Consent or connivance of the husband
o If the husband of the adulterous woman consents to the act,
then there is no offence.
o Allen v. Allen
▪ Laid down the above principle.
 ▪ The husband, thus, must be said to have directly
aided in the adultery itself.
▪ This can be done either explicitly or implicitly.
o Mere inattention, negligence or imprudence does not amount
to connivance. [B. D. Charles v. Nora]
• Should not be rape
o There should be sexual intercourse between two consenting
adults.
▪ Current Status of Adultery Law
• Joseph Shine v. Union of India (497 Unconstitutional)
o Struck down Section 497 as unconstitutional.
o This was based on the following main issues:
▪ Treating woman as chattel
▪ Gender discrimination, not giving woman the right
to sue her husband
▪ Does not include unmarried woman
• Treating Woman as Chattel
o The provision relating to consent of the husband of the
adulterous woman is regarded as derogatory, implying that
the wife is the property of the husband and that he can allow
access to anyone with his consent.
o R v. R (Woman as Chattel)
▪ Marriage is in modern times regarded as a
partnership of equals, and no longer one in which the
wife must be the subservient chattel of the husband.
[Lord Keith]
▪ A wife is no longer her husband’s chattel. She is
beginning to be regarded by the laws as a partner in
all affairs which are their common concern. [Lord
Denning]
o Along with this section, Section 198 of the CrPC was argued
to be equally infirm insofar as it does not allow anyone else
but the husband or someone on his behalf to file a complaint
against another man for this offence.
• Gender discrimination
o This provision could not stand the test of Article 14 of the
Constitution as it deprived women of the right to prosecute,
and on this ground the said section is gender neutral.
o This provision mandates that the adulterous woman is to be
treated as a victim, which implies that woman could not take
responsibility for her own actions as a result of which this
provision is assailed.
 o Here, the woman is also not punished if she acts as an
abettor. This disallows for a wife to prosecute the adulterous
for abetting or inducing her husband to commit adultery.
• Does not include unmarried woman
o The extra-marital affair with an unmarried woman is not
punishable. This makes the provision arbitrary.
o This creates an escape for the husband and grants him free
license under the law to have an extra-marital relationship
with an unmarried woman or a widow.
o A woman living with a man without marrying him and
bearing children out of such union would not be considered
as a married woman or wife of another man. [Brij Lal
Bishnoi v. State]
Module 2 – General Exceptions
Necessity
o Both these offences are excusatory defenses, and as such, apply when the accused
admits they committed a criminal act but their actions can be justified, and
therefore, they should not be criminally culpable.
o Interpretation of Necessity (Section 81 of the IPC)
▪ Requirements for the successful application of this defense:
• The defendant must reasonably believe that an actual threat exists.
This is criteria is independent of the actual extent of the threat or the
actual consequences that could’ve played out had the defendant not
intervene.
• The defendant must also reasonably believe that the threat he is
trying to prevent is greater than the damage that will result from his
actions.
• The threat must be imminent.
• There must not be a less harmful way of avoiding the threat. Thus,
the method opted by the defendant must be the least harmful way
possible.
• The defendant must himself not be at fault for creating the threat in
the first place.
▪ Reniger v. Fogossa (Necessity)
• Here, it was held that breaking the letter of the law might be justified
to avoid greater inconveniences, or through necessity, or by
compulsion.
▪ This defense arises where the accused successfully argues that due to a
greater evil, it was necessary to commit the offence that he carried out.
▪ Self-defense can be seen as an example of necessity in a more narrowly
defined defense.
▪ R v. Dudley and Stephens (Necessity of Murder)
• Defendants were a crew on a boat that had been shipwrecked by a
storm. They occupied a lifeboat whereupon thy were stranded for a
number of days.
• Upon the nutritional supplies getting exhausted, the defendants
agreed to draw straws to decide which one would be killed and eaten
to save the others.
• The defendants chose a poor boy who was already in a despicable
state, reasoning that he was near death anyway and had the least
chance of survival.
• The defendants were subsequently rescued and charged for murder.
• Lord Coleridge stated that the present case would not fall under the
defense of necessity this would lead to such a divorce between law
and morality so as to have a fatal consequence.
 • He reasoned that there was no metric by which lives could be
measured and thus, no situation of necessity arose that mandated the
killing of the boy only.
▪ Southwark London Borough Council v. Williams (Necessity)
• Lord Denning echoed the opinion given in the previous case and
stated that allowing such a defense to prevail in such a manner
would open a floodgate of excuses, including a scenario where
stealing food would be allowed by the homeless and hungry.
▪ R v. Shayler (Necessity)
• The House of Lords defined necessity and duress as vexed and
uncertain territory.
• The Court therefore, favored a restrictive approach and a reluctance
to establish necessity as a defense.
▪ R v. Perka (Necessity)
• Here, it was recognized that this defense must be strictly controlled
and scrupulously limited so as to avoid abuse.
▪ Most jurisdictions have also held that economic necessity alone does not
justify the commission of criminal acts.
▪ Necessity applied to fleeing prisoners
• Interesting are also those cases in which prisoners have escaped
from prison pleading that this was the only way to protect
themselves of the greater harm of sexual assault and beatings.
Typically, these arguments have been rejected where the prisoners
had other non-criminal options to avail.
• In courts where such a defense has been allowed to be argued in
front of the jury, the same courts have indicated that the defendant
will only be able to use this defense, if he could prove that once the
immediate threat was over, he turned himself to the authorities
immediately. [People v. Loughman]
▪ Re A (Case of Conjoined Twins)
• Case involves Mary and Jodie.
• Jodie was strong and capable of independent existence but Mary was
very weak and depended entirely on Jodie to keep her alive.
• Doctors were convinced that such a prolonged existence would
result in death. However, operating to separate them would kill
Mary but it would give Jodie a chance to have a good quality,
independent life.
• Parents refused. Doctors applied to Court stating best interest of
children. Court held operation was lawful.
• Lord Justice Brooke set out the requirements that were to be, and
were, filled:
o The act is needed to avoid inevitable or irreparable evil,
 o No more should be done than is reasonably necessary for the
purpose to be achieved,
o The evil inflicted is not disproportionate to the evil avoided.
▪ R v. Quayle (Fourth Criterion)
• Added a fourth criterion:
o Necessity must have arisen in extraneous circumstances
• Five defendants, all convicted of drug offences relating to
possession, importation or cultivation of cannabis and all pleading
the defense of necessity.
• The defendants were arguing that the cannabis was solely for
medical purposes for the relief of various painful conditions
including HIV and Multiple Sclerosis.
• Court denied these arguments.
▪ R v. Shayler (Fifth Criterion)
• Added a fifth criterion:
o The evil must be directed towards the defendant himself or
someone who he had responsibility for.
▪ Not recognizing this defense sets a standard whereby the law expects
individuals to exercise high morals and obedience to the law above the basic
human instinct of self-preservation. It has been argued that the law has been
viciously inconsistent and should take a more level approach to the standard
of morality expected from people.
o Necessity – Justificatory or Excusatory?
▪ The idea of justified necessity is that under extreme circumstances, the
defendant act reasonably to avoid a disastrous result but in so doing
commits an otherwise wrongful act.
▪ The idea of necessity as an excuse is that the possibility of the negative
outcome sought to be avoided somehow impinges on the defendant’s ability
to do the right thing. In this case, the defendant is excused because the law
views him charitably and not culpably.
▪ Difference
• Ashworth notes that if the accused asserts a claim that his or her
conduct prevented greater harm or a greater evil, his or her actions
are justified.
• On the other hand, if the defendant asserts that he was constrained
by extreme circumstances to commit the act, his or her actions are
excusable.
Duress
o Interpretation of Duress (Section 94 of the IPC)
▪ This applies when a person’s choice is constrained by threats to do an act
that would otherwise be a crime.
▪ The law recognizes that although a person may have had the required actus
reus and mens rea to carry out a criminal act, the fact that the person was
coerced by fear of threats of death or serious harm, allows that person to
escape criminal liability.
▪ This threat, however, must be imminent.
▪ The principal justification for excluding the defense of duress in cases of
murder is based on the view that the law must uphold the sanctity of human
life.
▪ Requirements for the defense of Duress:
• Threat must be of death or serious injury,
• Threat must be directed against the defendant, their immediate
family or someone close to the defendant,
• Relevant tests are objective, such as reasonableness of the
defendant’s perceptions and conduct.
• Criminal conduct caused by defendant must be directly caused by
the threats,
• No evasive recourse must be available,
• Defendant must not have voluntarily laid themselves to duress,
• May be a defense to any crime, except some forms of treason,
murder and attempted murder.
▪ R v. Hasan (Duress as Excusatory)
• Defendant convicted for aggravated burglary. Defendant claimed
that threats were made against him and his family, by a man known
to be of violent disposition and drug dealing.
• House of Lords rejected claim, claiming self-induced duress would
not be covered.
• House of Lords also held that the defense was excusatory and not
justificatory.
• The duress defense would only be allowed when:
o Accused genuinely believed that the threatened consequence
will take place.
o Accused must act within the standard of a reasonable person
of the accused age and background.
o There should not be any alternatives available.
o Accused should not have placed himself in the situation
voluntarily.
▪ Professor Glanville Williams states that the defense is excusatory as it is
allowed not because it achieves the greater good or lesser evil but because
the exceptional circumstances make it unlikely that the law can effectively
continue its prohibition, and make punishment for doing the act seem harsh
and unjust.
Senior Notes
IPC
o State of Punjab v. Major Singh (Outraging Modesty and the Nature of Modesty)
▪ Case where 45-year-old man molested a 7.5-month-old female baby.
▪ Key question was whether this was outraging the modesty of the baby.
▪ Rape was not in question as the old definition requiring there to be
penetration for rape was upheld.
▪ It was argued that for outraging the modesty, feelings of modesty were to
be present, which were absent in a 7.5-month-old baby who was incapable
of even comprehending the concept of modesty.
▪ Supreme Court convicted the accused under the reasoning that while the
feelings of modesty is important, Section 354 is applicable in the present
case as modesty is created by virtue of one’s gender.
▪ In the present case, where the gender of the girl had been decided at birth
itself, it can be aid that she possessed the right against violation of modesty
since her birth.
o What is a Crime?
▪ Affects Society/State
• Blackstone’s theory of public wrong distinguishes criminal wrong
from civil wrong in that a crime is a wrong against the whole society
rather than against an individual.
▪ Breach of Criminal Law punishable by State
• Austin’s theory of procedural wrong dictates that breach of a law
recognized an enforced by a state shall be punishable.
▪ Negative Act creating Fear
• J.S. Mill’s Theory of Harm helps decide what harm can actually be
considered a crime and raises questions, such as whether self-harm
would or should also constitute a crime.
▪ Immoral Act
• Garafalo, stating that crime is a moral wrong. However, morality is
subjective and therefore, harm should be read with morality to add
objectivity to observance.
▪ Infringes the Rights of other Individuals
• Just like civil wrong, criminal wrong infringes on the rights of other
individuals which is why it is considered a wrong.
o Hiel v. Baxter (Voluntary or Involuntary Act)
▪ Person was driving a car and overlooked the signal and caused an accident
which fell under the Traffic Act of the relevant jurisdiction. There was,
however, a substantial distance crossed between the traffic light crossing
and the site of the accident.
▪ Pleaded the defense of automatism, in that he was unaware of what he was
doing.
 ▪ When defense was raised in High Court, the jury denied the same basing its
reasoning on the substantial distance traveled before the accident.
o Grounds for involuntary act
▪ Unconscious
• Disease
• Spontaneous Reflex Action
▪ Conscious but Uncontrollable
▪ Act done under Compulsion (Section 94)
o Exceptions where an Involuntary Act would be punishable
▪ Voluntary Intoxication (Section 85 and 86)
▪ Negligence
• Prior conduct becomes relevant here, where a person can foresee
that he may lose control and cause a mishap, such as while a driver
is feeling sleeping while driving, he would not be allowed to avail
these defenses and the act would be considered negligent.
o R v. Larsenneur (Involuntary Act)
▪ French woman deported from England, went to Ireland. Deported from
Ireland, back to England. Arrested in England.
▪ She took the defense of involuntary act.
▪ Court denied the defense and convicted her for the relevant offense.
▪ Some scholars argued that this case was decided wrongfully, some argued
that her wrongful residence in England in the first place set of a chain of
acts which lead to the commission of the offence.
▪ A similar situation would be if a drunk person was caught on a highway by
the police, fined and dropped back on the same spot, only to be caught by
another police officer.
o R v. Millers (Omission)
▪ Trespasser smoked a cig and put it near a mattress which caused a fire.
Seeing this, he went to the other room to sleep.
▪ Upon trial, he pleaded that he was under no obligation to prevent or put out
the fire.
▪ The Court held that of a person created a danger or is aware of a danger,
then he should act like a reasonable man to prevent the harm or he would
be held liable.
o Principles which are not relevant in Criminal Law
▪ Contributory Negligence (Can be used as a mitigating factor only)
▪ Res Ipsa Loquitor (Burden of Proof is always on the Prosecution)
▪ Last Opportunity Rule
o Principles of Legal Causation
▪ The conduct of the person should be a substantial and operating cause
▪ De minimis principle will apply
▪ Act of offender need not be sole cause
▪ Reasonable foresight
 • Daftness Test analyzes whether an act by the other person was
stupid, hence falling outside the purview of reasonable foresight.
o R v. Pagget (Sole Cause of Offence)
▪ Shootout between police and accused, who used pregnant girlfriend as a
human shield. Girlfriend died.
▪ Court said that the death was caused due to the act of the offender, which
was a substantial and operating cause, and it was not necessary that the act
of the offender be the only cause of the death.
o Intervention
▪ Third Party
▪ Act of God
▪ Medical Negligence
▪ Lack of Treatment
▪ Sensitive Plaintiff
o Sensitive Plaintiff
▪ R v. Blaue
• Accused injured the victim in the lung. She required blood
transfusion but refused on religious grounds. She died.
• Accused raised defense of sensitive plaintiff which was rejected by
the court, which reasoned that the accused had to take the victim as
she was.
o Crimes in which Preparation is punishable
▪ Waging war against the State
▪ Dacoity
▪ Unlawful Possession
o Crimes in which the punishment for Attempt and Commission is the same
▪ Offences against State
▪ Attempting Mutiny
▪ Offences against Public Tranquility
▪ Unlawful Possession
▪ Criminal Trespass
▪ Offences related to Extortion, Robbery and Dacoity
▪ Attempt to Commit Suicide (Attempt is Actus Reus)
o United States v. Cote (Factual Impossibility)
▪ Factual impossibility or mistake of act is not a defense. Futile attempts
because of factual impossibility are attempts still the same.
▪ For an attempt conviction, Government was required to prove only that Mr.
Cote acted with the specific intent to commit the underlying crime and that
he took a substantial step towards the completion of it, regardless whether
he could’ve actually committed the crime.
o People v. Arnold (Mistake of Law or Fact)
▪ Defendant know that he possessed the frame or receiver of a rifle, but not
the entire rifle. He claimed he did not know that his counted as possessing
a firearm.
▪ The Court concluded that his mistake was a legally irrelevant mistake of
law.
o Broome v. Perkins (Automatism)
▪ Accused in a hypoglycemic state drove home from work, hitting another car
at some point. After reaching home and discovering the damage done to his
car, he reported himself to the police.
▪ Medical evidence showed that a person in his state could complete a similar
journey without being conscious of doing so, and although his awareness of
what he was going around him would be imperfect, he would be able to
react sufficiently to steer and operate the car, though not very well.
▪ Court held that since there was some voluntary control that could be
exercised by the accused, he had not been acting in an entirely involuntary
manner and therefore, automatism as a defense could not be availed by him
▪ Thus, this shows that any little exercise of will control will vitiate the
defense.
o Accident
▪ If negligence is proved as against the defendant, the burden of proving
inevitable accident then falls upon the defendant. In doing so, the defendant
has to establish how the accident took place and that the loss of control of
the vehicle could not have been avoided by the exercise of the greatest care
and skill.
▪ The defense is unlikely to be applicable in the case where the person seeking
to invoke it caused or contributed in any way to the emergency situation.
▪ To invoke Section 80, there must be absence of criminal intent and
knowledge.
▪ Hidasi v. Hidasi (Unforeseen Accident)
• Both parties were travelling along a mountain road which the
defendant, husband of the plaintiff, was familiar with. He knew the
road could be treacherous and thus checked the weather before he
left.
• While driving, the car lost its break system, and upon pulling the
emergency break, the car crashed into a barrier causing the plaintiff
some injury.
• Plaintiff claimed that the defendant was overdriving and had
inadequate tired.
• Court observed that the tires had just been replaced, the road
conditions were goof and the vehicle had never lost traction. This
case was that of an unexpected mechanical failure, and thus, was a
complete accident. Defendant was also driving within speed limit.
 • Court did not hold defendant liable.
▪ Agwu v. State (Automatism v. Accident)
• Man was suddenly stung by a bee in the back. In quick reaction he
tried to use the flat side of the machete to hit that part of the body to
get rid of the bee.
• Machete landed on the head of a co-worker.
• In this case, it was held that the act was unexpected and sudden and
thus, qualified as an accident.
o Infancy
▪ Umesh Chandra v. State of Rajasthan (Age of Offender)
• The Supreme Court held that the age of the offender is to be
calculated as of the date of the offence, to figure out whether he
would be tried as a juvenile or as an adult.
o Insanity
▪ A mad man does not have any will (furiosis null avoluntasesi) and his own
madness punishes him (furiosus furore suipuniter).
▪ Case of M’Naughten (Insanity)
• Accused, M’Naughten, suffered from a morbid delusion that Sir
Robert Peel, the then Prime Minister of Great Britain, was the only
reason for all his problems as the political party of Peel had
destroyed his peace by following him, persecuting him and
harassing him continuously and they also wished to murder him.
• He mistook Edward Drummond, Secretary to the Prime Minister, as
Peel and killed him.
• He took the plea of insanity.
• Medical evident revealed that the accused was under a morbid
delusion which had carries him away beyond power of his own
control.
• Jury acquitted.
▪ Principles propounded by the House of Lords
• Every person is presumed to be sane, unless proven otherwise,
• It has to be proved that at the time of the offence, the accused was
laboring under such a defect of reason, from the disease of the mind,
as to not know the nature and quality of the crime he was doing, or,
if he did not know that what he was doing was wrong.
• The test of wrongfulness of the crime lies on the power of the
accused to differentiate between knowledge of right and wrong with
respect to the particular act for which he is charged.
▪ Jacob Matthews Case (Supreme Court on Medical Negligence)
• Medical negligence ensues when the professional:
o Lacks proper skill and expertise to meet the standard
qualification of his profession.
 o Lacks care in exercising skill and expertise while conducting
an operation or procedure pursuant to his profession.
▪ R v. Prince negated by Sweet v. Parsley
▪ Strict Liability is applicable in cases of:
• Economic matters [MH George Case]
• Public welfare, in terms of health, morality, decency etc.). [Ranjit
Udeshi]
• Against sovereignty and integrity of the nation (Sedition).
• Against vulnerable groups or classes (SCs, STs, Children, etc.).
▪ State of Maharashtra v. MH George (Mens Rea in Strict Liability Offences)
• Accused was flying from Switzerland to Sri Lanka, stopped in India.
He was a German citizen and was carrying 34 kgs of gold with him.
• Custom officer at airport got information about this and arrested the
accused.
• The accused was unaware that 20 days ago the RBI had published a
notification that anyone who was carrying gold into the country was
to notify the RBI before landing into India.
• The accused argued absence of mens rea and that the publication of
the legislation was done in a proper manner.
• It was held that the publication was done in the national gazette
which was proper and that there was a presumption in favor of the
requirement of mens rea and that the only exception to this
presumption was a strict liability offence.
• Thus, the court held that strict liability can be applied in economic
matter for the public welfare.
▪ Ranjit Udeshi v. State of Maharashtra (Obscenity of Content – Hicklin Test)
• Ranjit D. Udeshi was one of the four partners of a firm that owned
a book-stall. The partners were prosecuted under section 292 of the
IPC for selling copies of an allegedly obscene book, Lady
Chatterley’s Lover, by DH Lawrence.
• Udeshi argued that section 292 is violative of the rights to freedom
of speech and expression under article 19(1)(a) of the Indian
Constitution and that the book is not obscene if considered as a
whole.
• Therefore, the Supreme Court had to differentiate between what was
obscene and what was artistic. The Court proceeded to examine the
test of obscenity that should be employed to determine what falls
within constitutional limits, as mere sex and nudity do not amount
to obscenity.
• The Court used the Hicklin test, which examines whether the
impugned matter tends to “deprave and corrupt those whose minds
 are open to such immoral influences, and into whose hands a
publication of this sort may fall.”
• This test was found not to violate article 19 of the Indian
Constitution. Under Hicklin, a work should be viewed as a whole,
but the obscene matter should also be separately considered to see if
it violates the test.
• The Court examined the text of Lady Chatterley’s Lover and
concluded that it was obscene under Hicklin. The appeal against
conviction was thus dismissed.
▪ Excusable Offences
• Mistake of Fact
o Bound by Law (S. 76)
o Justified by Law (S. 79)
• Incapacity
o Infancy (S. 82 & 83)
o Insanity (S. 84)
o Involuntary Intoxication (S. 85 & 86)
• Accident (S. 80)
▪ Justified Offences
• Judicial Act
o Act of Judge (S. 77)
o Act done in pursuance of an order of the Court (S. 78)
• Necessity (S. 81)
• Duress (S. 94)
• Consent
o With Consent (S. 87-91)
o Without Consent (S. 92)
• Communication in God Faith (S. 93)
• Trifling Matters (S. 95)
• Right of Private Defense (S. 96 – 106)
o Against Human Body
o Against Property
▪ Mistake of Fact
• State of West Bengal v. Shew Mangal Singh
• Bonda Kui v. Emperor (Mistake of Fact)
o Bonda Kui woke up one night to noises coming from the
house. She came out with an axe and, apprehending what
seemed to her as an evil spirit, gave a couple of blows with
the axe. She later realized that it was her sister-in-law who
was performing some ritual at night.
 o Patna High Court acquitted the accused and held that the
mistake but be honest and the act must be committed in good
faith.
• Emperor v. Shree Narayan (Mistake of Fact)
o Quarrel took place between tenant and landlord, and the
landlord hit the tenant with firewood, after which the tenant
started bleeding from the nose and fell unconscious.
o Thinking that the tenant had already passed away, the
landlord burnt the body. During post-mortem, it was
discovered that the deceased died due to the burns which
were made antemortem.
o Court convicted him of the offence citing lack of good faith
and a lack of taking reasonable and necessary enquiry before
committing the act.
▪ Accident
• Requirements for the application of Section 80:
o Accident of misfortune
o Absence of Mens Rea
o Lawful act, done in a lawful manner, using lawful means
• State of Madhya Pradesh v. Rangaswami (Accident)
o Forest officers received information of a rogue hyena in a
particular region of the forest.
o One of them ventured out, found what looked like the hyena
and shot it. Apparently, he shot a human being and was tried
for murder.
o He argued that the shot was taken from 150 ft away, on a day
of low visibility due to clouds and rain and that the officer
truly believed that it was a hyena and thus, the present case
was an accident.
o Court accepted these arguments, and considered the
contention that there were no lawful means as the gun used
by the officer was unlicensed. However, it held that such a
minute discrepancy would not be sufficient for a denial of
this defense and that standard of lawful means was relaxed
as all other condition were wholly fulfilled.
• Subsequent conduct is not relevant in distinguishing between
negligence and accident. It may only be relevant in certain cases,
such as hit and run, where the subsequent act of fleeing results in an
assumption of guilt as per Section 8 of the IEA.
▪ Necessity
• Consequential
o Bentham’s Utilitarian Approach.
 o Number approach – causing lesser harm to prevent greater
harm is justified.
• Categorical
o Kant’s Individual Liberty.
o Certain rights are more important than others, thus, necessity
cases cannot be applied to cases such as murder.
o Applied in R v. Dudley & Stephens.
• If there is fair play in the manner of choosing who to kill, then the
defense may be given. This is debatable also.
• London Borough of Sourthwark v. William (Necessity)
o The defendants were in need of housing, both having been
forced to leave their current lodgings. The defendants sought
the assistance of a squatters’ association which helped them
gain orderly entry into local authority owned houses. The
houses in question belonged to a group of hundreds of
houses that were left vacant by the local authority whilst
awaiting development in order to provide housing for those
on the authority’s housing list. Defendants were tried for
trespass.
o It was held that the local authority was in breach of its
statutory duty to provide housing to those who had been
evicted from their lodgings. However, the Act contained
specific remedies for beach, namely approaching the
Minister with regards to enforcing the duty. There was no
private law remedy available to the defendants. The
defendants could not rely on the defense of necessity to their
trespass of the properties.
o Even though authority existed supporting the view that in
extreme circumstances the preservation of life allows
encroachment onto private property, the facts for the
defendants did not amount to extreme circumstances and
furthermore, even if they were, it could not be suggested that
these circumstances were continuing to the extent that the
defendants should be allowed to remain living in the
properties indefinitely. The appeal was dismissed.
▪ Insanity
• Kinds of Insanity
o Mad – Complete insane - Acquired
o Idiot – Complete insane – Born idiot
o Lunatic – Lucid intervals
o Stupid – Contextual – Insanity in certain occasions
• Contextual stupidity does not qualify as a defense.
 • No differentiation between mad and idiot, or acquired or inherent.
Defense applicable to both.
• John Hickley Case
o Accused obsessed with an actress, writes a letter to her
telling her that he is going to kill the President to impress
her.
o Shoots President’s Secretary.
o Takes the defense of insanity. Found not competent to stand
on trial.
o Subsequently, wrote another letter to the actress telling her
that he is more famous than her.
o Accused gets exemption on the grounds of insanity.
o Defense standard of proof was only balance of probabilities
which was established.
o After this case, the law changed to include the requirement
of clear evidence which mandated that in the cases of
insanity, the standard of proof is higher than the balance of
probabilities, which falls between the beyond reasonable
doubt category and the same.
• Irresistible Impulse Test
o If a person knows about his act and that it has legal
consequences and goes against the law and in spite of that if
he can’t resist his act then he will get exemption.
o For example, kleptomania.
• Shrikant Bhosale v. State of Maharashtra (Insanity)
o Accused was a police constable who was charged with the
murder of his wife.
o He took the plea of insanity under paranoid schizophrenia.
o He claimed that he had a family history and that antecedent
and subsequent tests have confirmed the same.
o The court held that the person was not guilty as he had a clear
defect of mind.
• State of Madhya Pradesh v. Ahmadullah (Insanity)
o A headless bod of the accused’s mother was found.
o The accused later confessed to the crime and helped the
police find the head as well as the murder weapon.
o The defense took the plea of insanity under epilepsy.
o Court rejected the defense under the fact that the accused
was not suffering from epilepsy at the time of the murder, as
was evidenced by the fact that he tried to hide evidence.
▪ Admissibility of Expert Opinion
• Daubert Principle
 o Any expert opinion should pass through the logic of the
court. If the court is in the position to decide on an issue, the
expert opinion need not be considered by it.
• Panna v. State of Uttar Pradesh (Admissibility of Expert Opinion)
o Many eyewitnesses claimed that the accused killed the
deceased and that the body was fragged around 200m on a
rough surface.
o However, the Court observed that there were no marks on
the dead body and there was no need for an expert witness
as it was obvious that if the body was dragged, there
should’ve been marks.
▪ Antecedent and Subsequent Acts
• Surya Prasad Rout v. State of Orissa (Antecedent and Subsequent
Factors in Insanity)
o Accused stabs the deceased for no apparent reason and is
charged under S. 300.
o Antecedent factors included the fact that the accused had
been hospitalized for insanity a few days before the incident,
three days before the incident, a doctor was called to treat his
mental illness, morning of the incident, the accused was
behaving erratically and fighting with everyone.
o Subsequent factors included the fact that right after the
incident, he had gone to the police and the doctor has
testified that he was behaving in an erratic manner.
o On a combined reading, it was held that the person was
insane and was given the defense of insanity.
▪ Intoxication
• Involuntary intoxication may be effected in the following ways:
o Force or coercion
o Fraud or deception or lack of knowledge
• DPP v. Majewski (Intoxication)
o Accused beats up a police officer while hungover.
o The Court divided crimes into two types, of basic and
specific intent.
o In the present case, there was mere assault which was a basic
intent crime and thus, the accused could not avail the said
defense.
o Majewski’s Rule – Accused is liable for an offence of
subjective recklessness if unaware of the relevant risk by
virtue of his or her state of self-induced intoxication.
• IF the defendant knows that he has consumed alcohol, regardless of
whether he knows the strength or potency of the same, he will be
considered to be voluntarily intoxicated.
 • Any person knowingly intoxicating himself with such substances, is
committing a rash and negligent act averse to the possibility of
losing control.
• An unreasonable but genuine mistake of fact arising from self-
induced intoxication cannot be relied on where self-defense is raised
in respect of an allegation that the accused has committed a crime
with basic intent.
▪ Right of Private Defense
• Amjad Khan v. State (Right of Private Defense)
o Communal riot broke out in a market place, where most
shops belonged to the aggressor community.
o Mob looted the shop of Amjad’s brother, which was in the
same building where Amjad was hiding with women and
children. He shot from inside the shop and killed a few
people. He latter took claimed RPD.
o Court held that the defense was available and that the test of
proportionality was to be measured in a golden scale, as per
facts and circumstances.
o In the immediate facts, Amjad belonged to the minority
community and he apprehended that the mob was
approaching his shop with great imminence.
• Right to Private Defense is only available for instant apprehension
and not anticipation, in that if a person has already made prior
preparation, it becomes a punitive right rather than a preventive one.
• Paras Ram v. Rex
▪ Infancy
• Abdul Sattar v. Crown (Infancy)
o Child between the age of 7-12 years breaks open a shop for
the purpose of theft. HE found nothing and went on to do the
same to another shop.
o Defense claimed the defense of infancy, that the child was
not mature enough to understand the nature of the act or its
legal consequences.
o Court held that if a person knows that what he is doing is
wrong, he will not be exempted under this defense.
Prosecution won the case on the basis that the subsequent act
of the child, breaking and entering another shop after the first
one, showed maturity on his part.
• Hiralal Mallick v. State of Bihar (Infancy)
o Three brothers killed a person for revenge. One of the
brothers was slightly below 12 and defense pleaded infancy
as a defense.
 o The modus operandi of the crime involved deadly weapons
and several injuries were inflicted.
o Supreme Court held that the three people were together
involved in a crime with common intention and that all three
were equally guilty.
o It upheld the principle of Mischievous Discretion, wherein
the person knew that he was committing a wrong even
though he may not know that he was committing a crime.
• Pratap Singh v. State of Jharkhand (Date of Calculate Infancy)
o Relevant date to calculated age was the date of commission
of the crime.
▪ Volenti Non Fit Injuria
• R v. Williams (Misinformed Consent)
o Singing teacher informed minor girl that if she has sexual
intercourse with him, her voice and skill would improve.
o In this case, the Court held that there was no consent as this
consent was misinformed.
o Only informed and voluntary consent can constitute VNFI.
• Dasrath Paswan v. State of Bihar (Consent for Death)
o Accused was about to commit suicide as he had failed in his
10th grade examination a few times over. The wife and
husband made a pact wherein the husband would kill her and
then himself.
o The husband killed her but was unable to kill himself as he
was found by neighbours.
o Court denied complete benefit of VNFI and held that consent
cannot be given for causing death. The case however came
under exception 300(4) and thus the charge was reduced to
culpable homicide not amounting to murder.
▪ De Minimis – Trifling Matters
• Veeda Menezes v. Yusuf Khan (De Minimis)
o Verbal quarrel between landlord and tenant wherein minor
injuries pursued due to a fight. Police refused to accept case
on trifling matters.
o Supreme Court received case and decided on the ambit of S.
95. Held that harm and injury may be of four types: physical,
mental, injury to property and injury to reputation.
o No golden scale to measure trifling matters, would be
decided on the basis of:
▪ Nature of Injury
▪ Position of Parties
▪ Mens Rea
▪ Other Circumstances
 • Rupan Deol Bajaj v. KPS Gill (De Minimis to Modesty and Sexual
Harassment)
o Complainant and accused were in a party. Intoxicated Gill
pulled the chair as Bajaj was about to sit. He did so again.
He also slapped Bajaj on the posterior when she was trying
to leave.
o The Court upheld Major Singh principle and said that no
matter is trifling when the issue is with regards to the
modesty of a woman.
• State of Karnataka v. Lobo Medicals (De Minimis to Socio-
Economic Matters)
o Case against medical shop, who was selling medicines at 60p
more than the MRP of the medicine.
o Pleaded for de minimis.
o Court held that S. 95 was not applicable to socio-economic
matters.
▪ Jurisdiction
• IPC is applicable in entire India, except J&K.
• Mubarik Ali v. State of Bombay (Interterritorial Offences)
o A citizen of India dealt with a Pakistani, living in Karachi,
for the sale of rice. The latter did not fulfill the order.
o A case of cheating was made out and the Supreme Court held
the Pakistani national liable, holding that physical presence
was no necessary for interterritorial offences.
• Active Nationality Principle
o If a Indian national is travelling abroad and he commits a
crime in such foreign territory, he would be held liable under
the IPC.
• Superintendent and Remembrancer of the Legal affairs, West
Bengal v. Corporation of Calcutta (Holding Corporation liable for
Contravention of Laws)
o Appellant was carrying out trade without having a valid
trade license. Corporation complained about the same.
o The Supreme court held that if the government carries on
trade, a trade license is compulsory unless specifically
exempted.
o Thus, holding a corporation liable.
▪ Common Intention
• Section 34
• Criminal act by two or more people in furtherance of a common
intention.
• Barendra Kumar Ghosh v. King Emperor (Common Intention)
 o BKG goes to rob post office with three other people. All of
them were armed and shot the cashier.
o Case was filed for murder and robbery.
o Defense took the plea that the murder was not caused by
BKG and thus, should not be liable for the act of an
accomplice.
o Court held that mere contribution is enough in order to
convict the accused for murder under section 34. The fact
that the murder was committed in furtherance of the
common intention, which was to rob, was enough to commit
all of them under section 302.
▪ Conspiracy
• Bimbadher Pradhan v. State of Orissa (Sole Conspirator
Conviction)
o One of the accused became and approver and was also one
of the two initially charged for criminal conspiracy.
o Hence, the other accused was charged for the offence of
criminal conspiracy alone.
▪ Negligence as Mens Rea (Section 304B)
• Medical negligence and road accidents are common examples which
come under section 304B.
• This depends:
o On the object sought to be achieved.
o In the magnitude of risk involved.
o On the consideration paid.
• Medical Negligence
o Bolitho Test (Test of Medical Negligence)
▪ Problems in respiratory passage of a child, doctor
failed to provide incubation.
▪ Divided opinion on requirement of incubation.
▪ Court said that the expert opinion must pass through
the test of the logic of the Court.
▪ To determine whether the act was justified or not,
court will compare the risk involved to the benefit
expected from a particular case.
▪ In India, the Bolitho test is not generally applied.
o Case where Bolam would exonerate, while Bolitho would
convict.
▪ Doctors retained organs without consent of the
representatives of the deceased.
▪ Under the Bolam test, the doctors in the field may
hold that this is an accepted practice.
 ▪ Under Bolitho, the Court may hold that such a
practice does not stand the logic of the court as it is
not based on informed consent and is thus wrong per
se.
o Dr. Suresh Gupta v. State of NCT of Delhi (Medical
Negligence)
▪ No distinction between civil and criminal negligence
prior to this case.
▪ Death of a 38-year-old.
▪ There was a minor surgery involved where a tube
was inserted to stop the blood from going back to the
heart.
▪ One expert held that the death was cause because the
tube was not of the right size.
▪ Two experts held that the death was caused because
of a heart attack.
▪ The Court went with the majority but held that such
a case was anyway not within Section 304B as it was
a civil negligence case and not a criminal negligence
case.
o Jacob Matthews v. State of Punjab (Medical Negligence)
▪ The patient was a 60-year-old who suddenly
complained of having breathing problems.
▪ The doctor took some time to come, but when he did
he turned on the oxygen cylinder, only to find out
after 15-20 mins that it didn’t have any oxygen. The
patient died.
▪ Court decided on the lines of the Suresh Gupta case,
that the present case was only of a civil negligence
case and not a criminal negligence case.
▪ It held that the standard of the civil procedure, res
ipsa loquitor, would not apply and that the
prosecution failed to prove that it was a case of gross
negligence. Hence, even though this appears to be a
case of negligence prima facie, the doctor would not
be criminally liable.
▪ Offences Against Human Property
• Theft
o Avtar Singh v. State of Punjab (Theft of Electricity)
▪ The prosecution mistakenly filed a case of theft of
electricity under IPC, whereas the Electricity Act
regulated this subject matter.
 ▪ Thus, the Court had to decide whether electricity
could be a subject matter of theft.
▪ Firstly, the court held that where there is a special
law that the prosecution failed to apply, the Court
will read the general provision with the special law.
▪ Hence, the person was convicted under IPC.
o R v. Thompson (Custody v. Possession)
▪ Man gives another person at the head of a queue for
the purpose of buying the former a ticket. The latter
runs away with it.
▪ In the present case, the entrustment was in the form
of custody and not possession, hence the case of theft
was made out.
o Dead body cannot be the subject matter of a theft because
the legal heirs and representatives do not technically possess
it. The ashes of a dead person can be a subject matter of theft.
▪ Causa Causans (Proximate Cause)
• Joginder Singh v. State of Punjab (Intervening Act of Victim)
o Victim teased the sister of the accused – Accused went to
take revenge – Cousins of victim intervened – Victim started
running and was chased by the accused – Victim jumped into
a well – sustained head injuries and died – 15-20 feet
distance between the victim and accused when he jumped –
no evidence to show that the accused made the victim jump
– Not convicted under murder – accused did not make victim
jump into the well.
▪ Mens Rea
• Niranjan Singh v. Jitendra Bhimraj (Lex Specialis Mens Rea)
o Accused wanted to eliminate R and K for gaining supremacy
in the underworld – There were charged under TADA – Held
that it was clear that the accused intended to eliminate their
rivals and gain supremacy in the underworld however there
was no intention to spread terror in society – While the
consequence of the Killing might cause panic and fear, there
is no intention to do so – Thus, the accused were acquitted.