Q.1.

Explain the stages in commission of a crime

If a person commits crime voluntarily or after premeditation
the doing of it involves four stages. These four stages are:
(1) Intention
(2) Preparation
(3) Attempt and
(4) Accomplishment or commission of crime
A. THE FIRST IS THE MENTAL STAGE - INTENTION
General Rule: Mental acts such as thoughts, ideas, opinions
and beliefs, are not subject of penal legislations. One may
express an idea which is contrary to law, morals or is
unconventional, but as long as he does not act on them or
induce others to act on them, such mental matters are
outside the realm of penal law and the person may not be
subjected to criminal prosecution. 
B. THE SECOND – PREPARATION :
The External Stage which is where the accused performs acts
which are observable 
1). The Preparatory acts: Acts which may or may not lead to
the commission of a concrete crime. Being equivocal they are
not as rule punishable except when there is an express
provision of law punishing specific preparatory acts. 
Example: (i) the general rule: buying of a gun, bolo or
poison, even if the purpose is to use these to kill a person; so
also with conspiracies and proposals. (ii) the exception:
possession of picklocks and false keys is punished; as with
conspiracies to commit treason, rebellion, sedition and coup
d’etat
2) The Acts of execution: the attempted, frustrated and
consumated stages   
Only to intentional felonies by positive acts but not to: (i).
Felonies by omission (ii) Culpable felonies and (iii) Violations of
special laws, unless the special law provides for an attempted
or frustrated stage. Examples of the exception are The

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Dangerous Drugs Law which penalizes an attempt to violate
some of its provisions, and The Human Security Act of 2007 

III. THE ATTEMPTED STAGE - ATTEMPT:

"The accused commences the commission of a felonious act
directly by overt acts but does not perform all the acts of
execution due to some cause or accident other than his own
spontaneous desistance”
 A).(1). The attempt which the Penal Code punishes is that
which has a connection to a particular, concrete offense, that
which is the beginning of the execution of the offense by
overt acts of the perpetrator, leading directly to the its
realization and commission (2) The act must not be equivocal
but indicates a clear intention to commit a particular and
specific felony. Thus the act of a notorious criminal in
following a woman cannot be the attempted stage of any
felony.   
B). Overt or external act is some physical deed or activity,
indicating the intention to commit a particular crime, more
than a mere planning or preparation, which if carried out to
is complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense 
C). Examples:
1.  The accused pressed a chemically -soaked cloth on the
mouth of the woman to induce her to sleep, while he lay on
top of her and pressed his body to her. The act is not the
overt act that will logically and necessarily ripen into
rape.  They constitute unjust vexation. ( Note: it would be
attempted rape if he tried to undress the victim or touch
her private parts) ( Balleros vs. People, Feb, 22, 2006)
2. One found inside a house but no article was found on
him, is liable for trespass and not for attempted theft or
robbery even if he is a notorious robber
3. One found removing the glass window panes or making
a hole in the wall is not liable for attempted robbery but for
attempted trespass 
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 D) The accused has not yet passed the subjective phase or
that phase encompassed from the time an act is executed
which begins the commission of the crime until the time of
the performance of the last act necessary to produce the
crime, but where the accused has still control over his actions
and their results. 
E).The accused was not able to continue performing the acts
to produce the crime. He was prevented by external forces
and not because he himself chose not to continue. Such as
when his weap0n was snatched, or his intended victim
managed to escape, or he was overpowered or arrested. 
F). If the accused voluntarily desisted i.e he himself decided
not to continue with his criminal purpose, then he is not
liable.
1. Reason: This is an absolutory cause by way of reward to
those who, having set one foot on the verge of crimes,
heed the call of their conscience and return to the path of
righteousness.  .
2. The reason for the desistance is immaterial
3. Exceptions: when the accused is liable despite his
desistance
a). when the act performed prior to the desistance
already constituted the attempted stage of the intended
felony. For example: the accused, with intent to kill, shot
at the victim but missed after which he “desisted”, his
acts already constituted attempted homicide
b). When the acts performed already gave rise to the
intended felony. The decision not to continue is not a
legal but factual desistance. As in the case of a thief who
returned what he stole.
c). When the acts performed constitute a separate
offense. Pointing a gun at another and threatening to kill,
and then desisting gives rise to grave threats. 

IV. ACCOMPLISHMENT OR COMMISSION OF CRIME:

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The accused has performed all the acts of execution necessary
to produce the felony but the crime is not produced by reason
of causes independent of the will of the accused.
A. The accused has passed the subjective phase and is now
in the objective phase, or that portion in the commission of
the crime where the accused has performed the last act
necessary to produce the intended crime and where he has
no more control over the results of his acts.
B. The non-production of the crime should not be due to the
acts of the accused himself, for if it were he would be liable
not for the frustrated stage of the intended crime, but
possibly for another offense. 
Thus: where the accused shot the victim mortally wounding
him, but he himself saved the life of his victim, his liability is
that for serious physical injuries as the intent to kill is
absent. 
C. Attempted vs. Frustrated Homicide/murder. Where the
accused, with intent to kill, injured the victim but the latter
did not die, when is the crime attempted or frustrated?    
1. First View:  “The subjective phase doctrine”. If at that
point where the accused has still control over the results of
his actions but is stopped by reason outside of his own
desistance and the subjective phase has not been passed,
the offense is attempted
2. Second View: The Mortal Wound or Life Threatening
Injury Doctrine:  If a mortal wound or life threatening
injury had been inflicted, the offense is frustrated, else it is
attempted ( Palaganas vs. PP., Sept. 12, 2006)   
3. Third View:  The belief of the accused should be
considered in that if the accused believed he has done all
which is necessary to produce death, then it is frustrated.

Q.2 Theories of Punishment:

One can surely observe how closely are crime and punishment
related. The researcher would in this chapter precisely like to
stress on this point itself.
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Crime is behaviour or action that is punishable by criminal law.
A crime is a public, as opposed to a moral, wrong; it is an
offence committed against (and hence punishable by) the state
or the community at large. Many crimes are immoral, but not
all actions considered immoral are illegal.

In different legal systems the forms of punishment may be

different but it may be observed that all arise out of some
action or omission. All these constitute all moral as well as
legal wrongs such as murder, rape, littering, theft, trespass
and many more. As crime is quite different in different
geographical area it is quite evident that the forms of
punishment would vary as it was mentioned earlier that
punishment as well as crime are socially determined. A type of
action may be a crime in one society but not in another. For
example euthanasia is an offence in India, but in many
European countries such as Holland it is legalized. But there
are certain offences which are recognized almost universally
like murder.

Both of these thinkers of punishment believe that the offender

must be answerable for any wrong that he has done. K. Baier
explains punishment as law-making, penalisation, finding
guilty, pronouncing a sentence. In a legal context law-making
is a necessary condition, but it is possible to commit a
wrongdoing intentionally although no law has been made, in
fact it is because certain acts are considered wrong that laws
are made in the first place. What is important to note is that
punishment is a conditional act and cannot be isolated from its
total context.

But Durkhaeim has a different approach to punishment

altogether. He treats punishment as the reaction of the society
against a crime. According to him a if punishment be a
proportionate response to the harm caused to the society then
the extent of the punishment inflicted must be clearly sorted
out. He also stressed on the point that punishment can never

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be calculated; it is an intensely emotional- sense of outrage-
the desire to exact punishment. He says, It is not the specific
nature or result of the offending action as such which matter,
but he fact that the action transgresses widely shared ad
strongly held sentiments, whatever these might be in any
particular case. He explains that if punishment is a reaction of
the society against the offenders then it is generally in the form
of an outrage or anger thus rather being reparative or
reformative becomes punitive. This approach of the society
towards the criminals is what makes us treat them as outcasts
and treated as an deviant from the social norms. This two-fold
approach has been criticized severely by various penologists,
as at one time there is the use of both reformati

summarizing the concept of punishment one can suggest that

punishment includes the following areas:

# Punishment inflicted is a feeling of uncomfortable and

unpleasant circumstances.

# It is a sequel of a wrongful act

# There must be some relationship between the punishment

inflicted and the crime committed.

# The punishment is a form by which a criminal is made

answerable to the society.

Theories of Punishment:

With change in the social structure the society has witnessed

various punishment theories and the radical changes that they
have undergone from the traditional to the modern level and
the crucial problems relating to them. Kenny wrote: "it cannot
be said that the theories of criminal punishment current
amongst our judges and legislators have assumed...."either a
coherent or even a stable form.

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The general view that the researcher finds is that the
researcher gathers is that the theories of punishment being so
vague are difficult to discuss as such. In the words of Sir John
Salmond, “The ends of criminal justice are four in number, and
in respect to the purposes served by the them punishment can
be divided as:

1. Deterrent

2. Retributive

3. Preventive

4. Reformative

of these aspects the first is the essential and the all-important

one, the others being merely accessory. Punishment before all
things is deterrent, and the chief end of the law of crime is to
make the evil-doer an example and a warning to all that are
like-minded with him.

Deterrent Theory:

One of the primitive methods of punishments believes in the

fact that if severe punishments were inflicted on the offender
would deter him form repeating that crime. Those who commit
a crime, it is assumed, derive a mental satisfaction or a feeling
of enjoyment in the act. To neutralize this inclination of the
mind, punishment inflicts equal quantum of suffering on the
offender so that it is no longer attractive for him to carry out
such committal of crimes. Pleasure and pain are two physical
feelings or sensation that nature has provided to mankind, to
enable him to do certain things or to desist from certain things,
or to undo wrong things previously done by him. It is like
providing both a powerful engine and an equally powerful
brake in the automobile. Impelled by taste and good appetite,
which are feelings of pleasure a man over-eats. Gluttony and
surfeit make him obese and he starts suffering disease. This
causes pain. He consults a doctor and thereafter starts dieting .

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Thus the person before eating in the same way would think
twice and may not at all take that food. In social life
punishment introduces the element of 'pain' to correct the
excess action of a person carried out by the impulse (pleasure)
of his mind. We all like very much to seize opportunities, but
abhor when we face threats. But in reality pain, threat or
challenges actually strengthens and purifies a man and so an
organization.

J. Bentham, as the founder of this theory, states:

"General prevention ought to be the chief end of punishment as

its real justification. If we could consider an offence, which has
beeen, committed as an isolated fact, the like of which would
never recur, punishment would be useless. It would only be
only adding one evil to another. But when we consider that an
unpunished crime leaves the path of crime open, not only to
the same delinquent but also to all those who may have the
same motives and opportunities for entering upon it, we
perceive that punishment inflicted on the individual becomes a
source of security for all. That punishment which considered in
itself appeared base and repugnant to all generous sentiments
is elevated to the first rank of benefits when it is regarded not
as an act of wrath or vengeance against a guilty or unfortunate
individual who has given way to mischievous inclinations, but
as an indispensable sacrifice to the common safety."

Bentham's theory was based on a hedonistic conception of man

and that man as such would be deterred from crime if
punishment were applied swiftly, certainly, and severely. But
being aware that punishment is an evil, he says, If the evil of
punishment exceeds the evil of the offence, the punishment
will be unprofitable; he will have purchased exemption from
one evil at the expense of another.

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The basic idea of deterrence is to deter both offenders and
others from committing a similar offence. But also in
Bentham's theory was the idea that punishment would also
provide an opportunity for reform.

"While a person goes on seeking pleasure, he also takes steps

to avoid pain. This is a new system of political philosophy and
ethics developed by Jerome Bentham and John Stuart Mill in
the 19th century called Utilitarianism. It postulates human
efforts towards "maximization of pleasure and maximum
minimization of pain" as the goal. "The main ethical imperative
of utilitarianism is: the greatest good for the largest number of
people; or the greatest number of goods for the greatest
number of people" The fear of consequent punishment at the
hands of law should act as a check from committing crimes by
people. The law violator not merely gets punishment, but he
has to undergo an obnoxious process like arrest, production
before a magistrate, trial in a criminal court etc. that bring
about a social stigma to him as the accused. All these infuse a
sense fear and pain and one thinks twice before venturing to
commit a crime, unless he is a hardcore criminal, or one who
has developed a habit for committing crimes. Deterrent theory
believes in giving exemplary punishment through adequate
penalty."

In earlier days a criminal act was considered to be due to the

influence of some evil spirit on the offender for which he was
unwillingly was made to do that wrong. Thus to correct that
offender the society retorted to severe deterrent policies and
forms of the government as this wrongful act was take as an
challenge to the God and the religion.

But in spite of all these efforts there are some lacunae in this
theory. This theory is unable to deter the activity of the
hardcore criminals as the pain inflicted or even the penalties
are ineffective. The most mockery of this theory can be seen
when the criminals return to the prisons soon after their

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release, that is precisely because as this theory is based on
certain restrictions, these criminals are not effected at all by
these restrictions rather they tend to enjoy these restrictions
more than they enjoy their freedom.

Retributive Theory:

...An eye for an eye would turn the whole world blind-
Mahatma Gandhi

The most stringent and harsh of all theories retributive theory

believes to end the crime in itself. This theory underlines the
idea of vengeance and revenge rather than that of social
welfare and security. Punishment of the offender provides
some kind solace to the victim or to the family members of the
victim of the crime, who has suffered out of the action of the
offender and prevents reprisals from them to the offender or
his family. The only reason for keeping the offender in prison
under unpleasant circumstances would be the vengeful
pleasure of sufferer and his family. J.M.Finnis argues in favour
of retributism by mentioning it as a balance of fairness in the
distribution of advantages and disadvantages by restraining his
will. Retributivists believe that considerations under social
protection may serve a minimal purpose of the punishment.
Traditional retributism relied on punishing the intrinsic value of
the offence and thus resort to very harsh methods. This theory
is based on the same principle as the deterrent theory, the
Utilitarian theory. To look into more precisely both these
theories involve the exercise of control over the emotional
instinctual forces that condition such actions. This includes our
sense of hatred towards the criminals and a reliance on him as
a butt of aggressive outbursts.

Sir Walter Moberly states that the punishment is deemed to

give the men their dues. "Punishment serves to express and to
and to satisfy the righteous indignation which a healthy

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community treats as transgression. As such it is an end in
itself."

"The utilitarian theories are forward looking; they are

concerned with the consequences of punishment rather than
the wrong done, which, being in the past, cannot be altered. A
retributive theory, on the other hand, sees the primary
justification in the fact that an offence has been committed
which deserves the punishment of the offender." As Kant
argues in a famous passage:

"Judicial punishment can never be used merely as a means to

promote some other good for the criminal himself or civil
society, but instead it must in all cases be imposed on him only
on the ground that he has committed a crime; for a human
being can never be manipulated merely as a means to the
purposes of someone else... He must first of all be found to be
deserving of punishment before any consideration is given of
the utility of this punishment for himself or his fellow citizens."

"Kant argues that retribution is not just a necessary condition

for punishment but also a sufficient one. Punishment is an end
in itself. Retribution could also be said to be the 'natural'
justification", in the sense that man thinks it quite natural and
just that a bad person ought to be punished and a good person
rewarded.

However 'natural' retribution might seem, it can also be seen

as Bentham saw it, that is as adding one evil to another, base
and repugnant, or as an act of wrath or vengeance. Therefore
as we consider divine punishment we must bear in mind, as
Rowell says, The doctrine of hell was framed in terms of a
retributive theory of punishment, the wicked receiving their
just deserts, with no thought of the possible reformation of the
offender. In so far as there was a deterrent element, it related
to the sanction hell provided for ensuring moral conduct during
a man's earthly life.

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Thus the researcher concludes that this theory closely related
to that of expiation as the pain inflicted compensates for the
pleasure derived by the offender. Though not in anymore
contention in the modern arena but its significance cannot be
totally ruled out as fear still plays an important role in the
minds of various first time offenders. But the researcher feels
that the basis of this theory i.e. vengeance is not expected in a
civilized society. This theory has been severely criticized by
modern day penologists and is redundant in the present
punishments.

Preventive Theory:

Unlike the former theories, this theory aims to prevent the

crime rather then avenging it. Looking at punishments from a
more humane perspective it rests on the fact that the need of a
punishment for a crime arises out of mere social needs i.e.
while sending the criminals to the prisons the society is in turn
trying to prevent the offender from doing any other crime and
thus protecting the society from any anti-social elements.

Illustration, An owner of the land puts an notice that

‘trespassers’ would be prosecuted. He does not want an actual
trespasser and to have the trouble and expense of setting the
law in motion against him. He hopes that the threat would
render any such action unnecessary; his aim is not to punish
trespass but to prevent it. But if trespass still takes place he
undertakes prosecution. Thus the instrument which he devised
originally consist of a general warning and not any particular
convictions.

Thus it must be quite clear now by the illustration that the law
aims at providing general threats but not convictions at the
beginning itself. Even utilitarian such as Bentham have also
supported this theory as it has been able to discourage the
criminals from doing a wrong and that also without performing

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any severity on the criminals. The present day prisons are
fallout of this theory. The preventive theory can be explained in
the context of imprisonment as separating the criminals from
the society and thus preventing any further crime by that
offender and also by putting certain restrictions on the criminal
it would prevent the criminal from committing any offence in
the future. Supporters of this theory may also take Capital
Punishment to be a part of this theory. A serious and diligent
rehabilitation program would succeed in turning a high
percentage of criminals away from a life of crime. There are,
however, many reasons why rehabilitation programs are not
commonly in effect in our prisons. Most politicians and a high
proportion of the public do not believe in rehabilitation as a
desirable goal. The idea of rehabilitation is considered
mollycoddling. What they want is retribution, revenge,
punishment and suffering.

Thus one an easily say that preventive theory though aiming at

preventing the crime to happen in the future but it still has
some aspects which are questioned by the penologists as it
contains in its techniques which are quite harsh in nature. The
major problem with these type of theories is that they make
the criminal more violent rather than changing him to a better
individual. The last theory of punishment being the most
humane of all looks into this aspect.

Reformative Theory:

But that is the beginning of a new story--the story of the

gradual Renewal of a man, the story of his gradual
regeneration, of his Passing from one world into another, of his
initiation into a new Unknown life.

The author of the above excerpt in this concluding paragraph

underlines the basic principle of the reformative theory. It

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emphasizes on the renewal of the criminal and the beginning of
a new life for him.

The most recent and the most humane of all theories is based
on the principle of reforming the legal offenders through
individual treatment. Not looking to criminals as inhuman this
theory puts forward the changing nature of the modern society
where it presently looks into the fact that all other theories
have failed to put forward any such stable theory, which would
prevent the occurrence of further crimes. Though it may be
true that there has been a greater onset of crimes today than it
was earlier, but it may also be argued that many of the
criminals are also getting reformed and leading a law-abiding
life all-together. Reformative techniques are much close to the
deterrent techniques.

Reform in the deterrent sense implied that through being

punished the offender recognized his guilt and wished to
change. The formal and impressive condemnation by society
involved in punishment was thought to be an important means
of bring about that recognition. Similarly, others may be
brought to awareness that crime is wrong through another's
punishment and, as it were, 'reform' before they actually
commit a crime. But, although this is indeed one aspect of
rehabilitation, as a theory rehabilitation is more usually
associated with treatment of the offender. A few think that all
offenders are 'ill' and need to be 'cured' but the majority of
criminologists see punishment as a means of educating the
offender. This has been the ideal and therefore the most
popular theory in recent years. However, there is reason to
believe this theory is in decline and Lord Windlesham has noted
that if public opinion affects penal policy, as he thinks it does,

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then there will be more interest shown in retribution in the
future.

This theory aims at rehabilitating the offender to the norms of

the society i.e. into law-abiding member. This theory condemns
all kinds of corporal punishments. These aim at transforming
the law-offenders in such a way that the inmates of the peno-
correctional institutions can lead a life like a normal citizen.
These prisons or correctional homes as they are termed
humanly treat the inmates and release them as soon as they
feel that they are fit to mix up with the other members of the
community. The reformation generally takes place either
through probation or parole as measures for reforming
criminals. It looks at the seclusion of the criminals from the
society as an attempt to reform them and to prevent the
person from social ostracism. Though this theory works
stupendously for the correction of juveniles and first time
criminals, but in the case of hardened criminals this theory may
not work with the effectiveness. In these cases come the
importance of the deterrence theories and the retributive
theories. Thus each of these four theories have their own pros
and cons and each being important in it, none can be ignored
as such.

Conclusion

The researcher at the end of this project finds punishment as a

method of social control. He would like to summarize his
understanding about the teories of punishment:

# There is an attempt to portray punishments as a method of

inflicting of unpleasant circumstances over the offender.

# Though certain theories like the reformative and preventive

rely upon humanitarian modes of punishment, but these have a
weakness against the hardcore criminals.

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# Punishments such as the retributive and deterrence though
the use of fear as an instrument to curb the occurrence of
crime helps in controlling the criminals up to a certain extent.
As these employ the idea of revenge and vengeance these are
much more harsher than others.

The researcher would like to add his own views on this very
controversial topic. We all know that truth is stranger than
fiction and so is the practice of these theories. Though prisons
are meant to be the place where the criminals would be
corrected or for that case deterred from committing a wrong in
the future, but the present day witnesses the prisons to have
become redundant in their objective and becoming sites of
breeding for hardcore criminals. This is a fact that the
penologists must look into. Furthermore the techniques applied
in executing the punishment are not fool proof, for e.g. the
criminals are able to carry on their illegal activities even during
serving the period of sentence. Though in theory all of the
punishments discussed above may seem perfect if used
collectively, but this all becomes a mere joke when tried to
implicate in the practical sense.

Q.4 EXPLAIN GENERAL EXCEPTIONS UNDER INDIAN

PENAL CODE, 1860
Chapter IV of the IPC deals with the General Exceptions,
comprising of Sections 76 to 106. It exempts a person
form criminal liability even if he has committed the actus
reus with the required mens rea. These “General
Exceptions” are available to all offences.
Object of Chapter IV
It is not possible for every offense to be absolute and
without any exception. The Code was drafted upon the
assumption that all exceptional circumstances are absent.
For example, every man is assumed to be sane and not
under the influence of alcohol. But this is not always the
case and the Code makes provisions for such instances by
way of this chapter. Instead of adding the limitations or

16
exceptions to every offence, the makers of the Code made
a separate chapter which is applicable to the entire Code.
Therefore the objects of this chapter can be summarised
as:
1. To identify the exceptional circumstances by which a
person can escape criminal liability and
2. To remove the necessity of repeating the exceptions
for every offence, thereby making the Code simpler and
streamlined.
Structure of Chapter IV
The general exceptions are broadly divided into 2
categories namely,
1. Excusable act
2. Judicially justifiable act
Excusable act
 Infancy- S. 82, 83
 Insanity – S. 84
 Intoxication – S. 85, 86
Justifiable act
 Act of a judge
 Act done in the pursuance of an order
 Necessity
 Duress
 Consent (either with or without)
 Private defence
 Trivial incidents
The exception of an excusable act excuses a class of
persons from criminal liability even if an act is an offence.
This is generally due to the absence of mens rea. Therefore
even if a person commits the actus reus, due to the
absence of mens rea he will be excused.
Due to the presence of certain circumstance an act is
considered an exception as judicially justifiable. It
considers the actus reus done along with the required
mens rea to be meritorious or for the better. It pays more

17
 attention to the circumstances that govern the commission
of the said act.
In case of an excusable defense, the actor is not punished
as he lacks the necessary mens rea for the offence either
by reason of an honest mistake of fact, infancy, insanity or
intoxication.
There must be a disability to cause the condition that
excuses the conduct. As stated by Paul Robinson, a conduct
is punishable not because the person acted in that manner
but because he chose to act in that manner
A justified act is a one which otherwise, under normal
conditions, would have been wrongful but the
circumstances under which the act was committed make it
tolerable and acceptable. The person fulfills all the
ingredients of the offence but his conduct is held to be
right under the circumstances. For example, a man while
protecting his fields shot an arrow at a moving figure
honestly believing it to be a bear but caused the death of a
man who hiding in the bushes. He cannot be held liable
since his conduct was justified under the circumstances.
(State of Orissa v Khora Ghasi 1978 CrLJ 1305 (Ori)

In case of an excuse, though the person has caused harm,

it is held that the person should be excused because he
cannot be blamed for the act. For example, if a person of
unsound mind commits a crime, he cannot be held
responsible for being mentally sick. The two terms do not
mean the same thing.

Mistake of fact (Sec. 76 & 79)

The two sections exclude a person from criminal liability
when they are ignorant of the existence of relevant facts or
have mistaken them and commits a wrongful act for which
he neither could foresee or intended the unlawful
consequence. It is important that the mistake must be
reasonable and must pertain to the fact of the case and not

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the law. This is derived from the legal maxim “ignorantia
facti doth excusat, ignorantia juris non excusat”.
Sec. 76 excuses a person from criminal liability who, in to
good faith, commits an act which he believes he is bound
to do so under law, due to mistake of fact.
Sec.76 – A person believes that he is under a legal
compulsion to do such an act.
Sec. 79 excuses a person from criminal liability who, in to
good faith, commits an act which he believes he is justified
to do, due to mistake of fact.
Sec. 79- A person acts because he thinks there is a legal
justification for the act he has committed.
Bound by law
A soldier firing on a mob under the lawful orders of his
superior – This is an act where the soldier is bound by law
to do so.
An officer of court is supposed to arrest X but accidently
arrests Z believing him to be X – this is a mistake of fact.
Justified by law
Kiran Bedi v. Committee of Inquiry: where the petitioner
refused to depose at the beginning of the enquiry as she
believed that she could depose only at the end of the
inquiry.
Section 79 of the IPC excuses an act that the person felt
was justified by law. It can be best elucidated in Justice
Krishna Iyer’s judgment in Raj Kapoor v Laxman:
The position that emerges is this. Jurisprudentially viewed,
an act may be an offence, definitionally speaking but; a
forbidden act may not spell inevitable [guilt,] the law itself
declares that in certain special circumstances it is not to be
regarded as an offence. Section 79 makes an offence a
non-offence. When? Only when the offending act is actually
justified by law or is bona fide believed by mistake of fact
to be so justified. Thus a person will be protected under
Section 79 only if there was a legal justification available

19
 for his actions and he applied the law to the best of his
judgment in good faith.
Judicial Acts section 77 and 78
These provisions protect judges and judicial officers when
acting judicially in exercise of powers given to them by law
or which they believe in good faith to be vested in them by
the law. The acts are justified by law
The rationale behind these provisions is that judges and
judicial officers should not be under any external influence
so that they can act in a fearless and just manner.
Judicial acts extend to orders passed in the chambers of a
judge. If a judicial officer is involved in a criminal case, his
arrest has to be in accordance with the directions issued by
the Supreme Court in
Delhi Judicial Service Association, Tis Hazari Court v
State of Gujarat (AIR 1991 SC 2176)
Act of judge (Sec. 77) – this section excludes a judge from
criminal liability when he exercises his power given to him
by law in good faith.
Act done in the pursuance of an order Sec. 78) – this
section supplements sec. 77 and protects the ministerial
staff of the ‘Courts of Justice’ when they ensure that the
judicial orders and directions given are carried out
effectively.
The aim if the section is to give immunity to the judges
when they act in their judicial capacity to ensure
independence of the judiciary and enable them to
discharge their functions without fear of consequences.
 Sec 77 aims at protecting acts of a judge (as defined in
Sec 19 of IPC).
 He must be acting judicially- The act must be done in
course of the discharge of his judicial powers. In Anowar
Hussein v. Ajoy Kumar, the Supreme Court found the
accused acting in his executive authority and not judicially
and hence was not exempted from liability.
 The exercise of power must be done in good faith and be
given by law.
20
 Accident (Sec. 80)
Nothing is an offence if it is committed:
 By accident
 Without criminal intention or knowledge
 While doing a lawful act
 In a lawful manner
 By lawful means
 Where due care and caution is exercised.
Accident means an unintentional act or an unexpected act.
It is something that happens out of the ordinary course of
things.
It is necessary to prove that the act was done
1. without any criminal intention, with no mens rea. An
act that was intended by or known to the doer cannot be
an accident.
2. The act must be a lawful act, in a lawful manner by
lawful means.
3. Proper care and caution must be exercised.
Cases:
· Tunda v. Rex (wrestling match)
· State of Orissa v. Khora Ghasi

Necessity (Sec. 81)

Sec 81 embodies the doctrine of necessity. An act is not an
offence if done with the knowledge that it is likely to cause
harm but without any criminal intention to cause harm and
it should be done in good faith to any harm to another
person or property.
An accident is characterised by the absence of knowledge
and criminal intention but necessity involves knowledge but
excludes criminal intention.
i. Usual view – necessity is not a defence.

21
 ii. Can be held in exceptional circumstances (Eg. Private
defence)
iii. Landmark case – R v. Dudley and Stephens- 3
principles:
a) Self preservation is not absolute necessity
b) No person has right to take another’s life to preserve
his own.
c) There is no necessity that justifies homicide.
Act of child, insanity, intoxication
As mentioned before, to hold a person legally responsible for a
crime, in general, evil intention must be proved. A person who
is not mentally capable of distinguishing between good and bad
or of understanding the implications of an action cannot be said
to have an evil intention and thus should not be punished.
Such incapacity may arise due to age, mental illness, or
intoxication. Let us look at each of these one by one - 

Act of child
It is assumed that a child does not have an evil mind and he
does not do things with evil intention. He cannot even fully
understand the implications of the act that he is doing. Thus,
he completely lacks mens rea and should not be punished. IPC
contains for following exemptions for a child - 

Section 82 - Nothing is an offence which is done by a child

under seven years of age.

Section 83 - Nothing is an offence which is done by a child

above seven years of age and below twelve years of age who
has not attained the sufficient maturity of understanding to
judge the nature and consequences of this conduct on that
occasion.

Through these sections, IPC acknowledges the fact that

children under seven years of age cannot have suffient
maturity to commit a crime and is completely excused. In
Indian law, a child below seven years of age is called Doli
Incapax. In Queen vs Lukhini Agradanini 1874 , it was

22
held that merely the proof of age of the child would be a
conclusive proof of innocence and would ipso facto be an
answer to the charge against him.
However, a child above seven but below twelve may or may
not have sufficient maturity to commit a crime and whether he
is sufficiently mature to understand the nature and
consequences of the act needs to be determined from the facts
of the case. To claim a defence under section 83, a child must 

1. be above seven and below twelve years of age.

2. not have attained sufficient maturity to understand the
nature and consequences of his act.
3. be immature at the time of commission of the act.

Section 83 provides qualified immunity because presumes that

a child above seven and below twelve has sufficient maturity to
commit a crime and the burden is on the defence to prove that
he did not possess sufficient understanding. Thus, in Hiralal vs
State of Bihar 1977, the boy who participated in a concerted
action and used a sharp weapon for a murderous attack, was
held guilty in the absence of any evidence leading to boy's
feeble understanding of his actions.
In English law, a boy below 14 years is deemed incapable of
raping a woman but no such protection is offered in India and
in Emperor vs Paras Ram Dubey, a boy of 12 years of age
was convicted of raping a girl.

Insanity

A person may be rendered incapable of judging an action as

right or wrong due to several kinds of deficienty in mental
faculty or a disease of mind. Such people are called insane.
Their position is same as childern below the age of discretion.
From time to time several approches have been adopted to
understand insanity and to see whether a person was insane or
not at the time of his act.
Wild Beast Test
This test was evolved in R vs Arnold 1724. Here, the accused
was tried for wounding and attempting to kill Lord Onslow. By
evidence, it was clear that the person was mentally deranged. J
Tracy laid the test as follows, "If he was under the visitation of

23
God and could not distinguish between good and evil and did
not know what he did, though he committed the greatest
offence, yet he could not be guilty of any offence against any
law whatsoever."
Insane Delusion Test
This test was evolved in Hadfield's Case in 1800, where
Hadfield was charged with high treason and attempting the
assasination of Kind George III.  He was acquitted on the
ground of insane delusion. Here, the counsel pleaded that
insanity was to be determined by the fact of fixed insane
delusions with which the accused was suffering and which were
the direct cause of his crime. He pointed out that there are
people who are deprived of their understanding, either
permanently or temporarily, and suffer under delusions of
alarming description which overpowers the faculties of their
victims.

M' Naughten's Rules

In this case, Danial M'Naghten was tried for the murder of a
private secretary of the then prime minister of England. He was
acquitted on the ground of insanity. This caused a lot of uproar
and the case was sent to bench of fifteen judges who were
called upon to lay down the law regarding criminal
responsibility in case of lunacy. Some questions were posed to
the judges which they had to answer. These questions and
answers are knows as M'Naghten's Rules which form the basis
of the modern law on insanity. The following principals were
evolved in this case - 

1. Regardless of the fact that the accused was under insane

delusion, he is punishable according to the nature of the
crime if, at the time of the act, he knew that he was
acting contrary to law.
2. Every man must be presumed to be sane until contrary is
proven. That is, to establish defence on the ground of
insanity, it must be clearly proven that the person
suffered from a condition due to which he was not able to
understand the nature of the act or did not know what he
was doing was wrong.

24
 3. If the accused was conscious that the act was one that he
ought not to do and if that act was contrary to law, he
was punishable.
4. If the accused suffers with partial delusion, he must be
considered in the same situation as to the responsibility,
as if the facts with respect to which the delusion exists
were real. For example, if the accused, under delusion
that a person is about to kill him and attacks and kills the
person in self defence, he will be exempted from
punishment. But if the accused, under delusion that a
person has attacked his reputation, and kills the person
due to revenge, he will be punishable.
5. A medical witness who has not seen the accused previous
to the trial should not be asked his opinion whether on
evidence he thinks that the accused was insane.

The Indian Law recognizes the first two principals and

incorporates them in section 84. 
Section 84 - Nothing is an offence which is done by a person
who, at the time of doing it, by the reason of unsoundness of
mind, is incapable of knowing the nature of the act or that he is
doing what is either wrong or contrary to law.

Thus, a person claiming immunity under this section must

prove the existence of the following conditions - 

1. He was of unsound mind - Unsound Mind is not defined

in IPC. As per Stephen, it is equivalent to insanity, which
is a state of mind where the functions of feeling, knowing,
emotion, and willing are performed in abnormal manner.
The term Unsoundness of mind is quite wide and includes
all varieties of want of capacity whether temporary or
permanent, or because of illness or birth defect. However,
mere unsoundness of mind is not a sufficient ground. It
must be accompanied with the rest of the conditions.
2. Such incapacity must exist at the time of the act - A
person may become temporarily out of mind or insane for
example due to a bout of epilepsy or some other disease.
However, such condition must exist at the time of the act.

25
 In S K Nair vs State of Punjab 1997, the accused was
charged for murder of one and greivious assault on other
two. He pleaded insanity. However, it was held that the
words spoken by the accused at the time of the act clearly
show that he understood what he was doing and that it
was wrong.  Thus, he was held guilty.
3. Due to incapacity, he was incapable of knowing - 
1. either the nature of the act.
2. or that the act is wrong. 
3. or that the act is contrary to law.

The accused in not protected if he knows that what he was

doing was wrong even if he did not know that what he was
doing was contrary to law. In Chhagan vs State 1976, it was
held that mere queerness on the part of the accused or the
crime does not establish that he was insane. It must be proved
that the cognitive faculties of the person are such that he does
not know what he has done or what will follow his act.

Intoxication
Several times intoxication due to drinking alcohol or taking
other substances cause the person to lose the judgment of
right or wrong. In early law, however, this was no defence for
criminal responsibility.  In recent times this has become a valid
defence but only if the intoxication was involuntary. Section 85
says thus – 
Section 85 - Nothing is an offence which is done by a person
who at the time of doing it is by reason of intoxication,
incapable of knowing the nature of the act or that he is doing
what is either wrong or contrary to law : provided that the
thing which intoxicated him was administered to him without
his knowledge or against his will.
This means that to claim immunity under this section, the
accused mus prove the existence of following conditions - 

1. He was intoxicated.
2. Because of intoxication, he was rendered incapable of
knowing the nature of the act or that what is was doing
was wrong or contrary to law.
3. The thing that intoxicated him was administered to him
without his knowledge or against his will.

26
Director of Public Prosecution vs Beard 1920 was an
important case on this point. In this case, a 13 yr old girl was
passing by a mill area in the evening. A watchman who was
drunk saw her and attempted to rape her. She resisted and so
he put a hand on her mouth to prevent her from screaming
thereby killing her unintentionally. House of lords convicted
him for murder and the following principles were laid down - 

1. If the accused was so drunk that he was incapable of

forming the intent required he could not be convicted of a
crime for which only intent was required to be proved.
2. Insanity whether produced by drunkenness or otherwise is
a defence to the crime charged. The difference between
being drunk and diseases to which drunkenness leads is
another. The former is no excuse but the later is a valid
defence if it causes insanity.
3. The evidence of drunkenness falling short of proving
incapacity in the accused to form the intent necessary to
commit a crime and merely establishing that his mind was
affected by the drink so that he more readily gave way to
violent passion does not rebut the presumption that a
man intends the natural consequences of the act.

Accident in an act done with consent

Section 87 extends the scope of accident to cases where

an act was done with the consent of the victim.

It says thus - Section 87 - Nothing which is not intended to

cause death or grevious hurt and which is not known to the
doer to be likely to cause death or grevious hurt is an offence
by reason of any harm that it may cause or be intended by the
doer to cause to any person above eighteen years of age, who
has given consent whether express or implied, to suffer that
harm; or by reason of any harm which it may be known by the
doer to be likely to cause to any such person who has
consented to take the risk of that harm.

Illustration - A and Z agree to fence with each other for

amusement. This agreement implies the consent by each to
suffer any harm which in the course of such fencing may be
27
caused without foul play; and if A, while playing fairly, hurts Z,
A committs no offence.

This is based on the premise that every body is the best judge
for himself. If a person knowingly undertakes a task that is
likely to cause certain damage, then he cannot hold anybody
responsible for suffering that damage. Thus, a person watching
another litting up firecrackers agrees to take the risk of getting
burned and must not hold anybody responsible if he gets
burned. In Nageshwar vs Emperor, a person asked the accused
to try Dao on his hand believing that his hand was dao proof
due to a charm. He got hurt and bled to death. However, the
accused was acquitted because he was protected under this
section. The deceased consented to the risk of trying dao on
his hand.

Section 88:- Act not intended to cause death, done by

consent in good faith for person’s benefit

Nothing, which is not intended to cause death, is an offence by

reason of any harm which it may cause, or be intended by the
doer to cause, or be known by the doer to be likely to cause, to
any person for whose benefit it is done in good faith, and who
has given a consent, whether express or implied to suffer that
harm, or to take the risk of that harm.

Illustrations

A, a surgeon, knowing that a particular operation is likely to

cause the death of Z, who suffers under the painful complaint,
but not intending to cause Z’s death, and intending, in good
faith, Z’s benefit, performs that operation on Z, with Z’s
consent. A has committed no offence

Section 89:- Act done in good faith for benefit of child or

insane person, by or by consent of guardian
Nothing which is done in good faith for the benefit of a person
under twelve years of age, or of unsound mind, by or by
consent, either express or implied, of the guardian or other
person having lawful charge of that person, is an offence by
reason of any harm which it may cause, or be intended by the

28
 doer to cause or be known by the doer to be likely to cause to
that person: Provided
Provisos
1. That this exception shall not extend to the intentional
causing of death, or to the attempting to cause death;
2. That this exception shall not extend to the doing of
anything which the person doing it knows to be likely to cause
death, for any purpose other than the preventing of death or
grievous hurt, or the curing of any grievous disease or
infirmity;
3. That this exception shall not extend to the voluntary
causing of grievous hurt, or to the attempting to cause
grievous hurt, unless it be for the purpose of preventing death
or grievous hurt, or the curing of any grievous disease or
infirmity;
4. That this exception shall not extend to the abetment of
any offence, to the committing of which offence it would not
extend.
Illustrations
1. A, in good faith, for his child’s benefit without his child’s
consent, has his child cut for the stone by a surgeon knowing it
to be likely that the operation will cause the child’s death, but
not intending to cause the child’s death. A is within the
exception, in as much as his object was the cure of the child.

Section 90:- Consent known to be given under fear or

misconception
A consent is not such a consent as is intended by any section of
this Code, if the consent is given by a person under fear of
injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception; or
Consent of insane personif the consent is given by a person
who, from unsoundness of mind, or intoxication, is unable to
understand the nature and consequence of that to which he
gives his consent; or
Consent of childunless the contrary appears from the context, if
the consent is given by a person who is under twelve years of
age

29
 Section 91:- Exclusion of acts which are offences
independently of harm cause
The exceptions in sections 87, 88 and 89 do not extend to acts
which are offences independently of any harm which they may
cause, or be intended to cause, or be known to be likely to
cause, to the person giving the consent, or on whose behalf the
consent is given.
Illustrations
1. Causing miscarriage (unless caused in good faith for the
purpose of saving the life of the woman) is offence
inexpediently of any harm which it may cause or be intended to
cause to the woman. Therefore, it is not an offence “by reason
of such harm”; and the consent of the woman or of her
guardian to the causing of such miscarriage does not justify the
act.

Section 92:- Act done in good faith for benefit of a

person without consent
Nothing is an offence by reason of any harm which it may
causes to a person for whose benefit it is done in good faith,
even without that person’s consent, if the circumstances are
such that it is impossible for that person to signify consent, or
if that person is incapable of giving consent, and has no
guardian or other person in lawful charge of him from whom it
is possible to obtain consent in time for the thing to be done
with benefit:

Illustrations
a. Z is thrown from his horse, and is insensible. A, a
surgeon, finds that Z requires to be trepanned. A, not intending
Z’s death, but in good faith, for Z’s benefit, performs the
trepan before Z recovers his power of judging for himself. A
has committed no offence.
b. Z is carried off by a tiger. A fires at the tiger knowing it to
be likely that the shot may kill Z, but not intending to kill Z,
and in good faith intending Z’s benefit. A’s ball gives Z a mortal
wound. A has committed no offence.
c. A, a surgeon, sees a child suffer an accident which is likely
to prove fatal unless an operation be immediately performed.
30
 There is not time to apply to the child’s guardian. A performs
the operation in spite of the entreaties of the child, intending,
in good faith, the child’s benefit. A has committed no offence.
d. A is in a house which is on fire, with Z, a child. People
below hold out a blanket. A drops the child, from the house-
top, knowing it to be likely that the fall may kill the child, but
not intending to kill the child, and intending, in good faith, the
child’s benefit. Here, even if the child is killed by the fall, A has
committed no offence.

Section 93:- Communication made in good faith

No communication made in good faith is an offence by reason
of any harm to the person to whom it is made, if it is made for
the benefit of that person.
Illustrations
1. A, a surgeon, in good faith, communicates to a patient his
opinion that he cannot live. The patient dies in consequence of
the shock. A has committed no offence, though he knew it to
be likely that the communication might cause the patient’s
death.

Section 94:- Act to which a person is compelled by

threats
Except murder, and offences against the State punishable with
death, nothing is an offence which is done by a person who is
compelled to do it by threats, which, at the time of doing it,
reasonably cause the apprehension that instant death to that
person will otherwise be the consequence: Provided the person
doing the act did not of his own accord, or from a reasonable
apprehension of harm to himself short of instant death, place
himself in the situation by which he became subject to such
constraint.
Explanations
1. A person who, of his own accord, or by reason of a threat
of being beaten, joins a gang of dacoits, knowing their
character, is not entitled to the benefit of this exception, on the
ground of his having been compelled by his associates to do
anything that is an offence by law.
2. A person seized by a gang of dacoits, and forced, by
threat of instant death, to do a thing which is an offence by
law; for example, a smith compelled to take his tools and to
31
force the door of a house for the dacoits to enter and plunder
it, is entitled to the benefit of this exception
Section 95:- Act causing slight harm
Nothing is an offence by reason that it causes, or that it is
intended to cause, or that it is known to be likely to cause, any
harm, if that harm is so slight that no person of ordinary sense
and temper would complain of such harm

Q.5. The Death penalty (CAPITAL PUNISHMENT)

The Death penalty is a process, where the life of a person is

taken by the State by following the due procedure of law.
Capital punishment is, in all cases, given for the most heinous
of crimes. During recent times, there has been a global trend
to abolish the capital punishment. However, India has yet not
abolished the capital punishment (though the Court awards the
capital punishment in rarest of the rare case). What makes the
capital punishment a unique form of punishment is the nature
of irreversibility attached to it. If any error has been committed
to awarding the death penalty, it cannot be undone after the
person has been executed. (Many people give this argument
for abolishing the capital punishment.)

Although the death penalty has existed from time immemorial,

the movement to abolish it has gained a lot of momentum in
the recent times. This movement can be traced back to the
works Of one of the great criminologist named Cessare
Beccaria, who convinced many people that death penalty
should be abolished because it is inhuman, useless and
technically speaking, a public assassination. In the year 1846,
Michigan became the first State to abolish the capital
punishment, followed by Portugal and Venezuela in 1867.
Abolition of the death penalty was also supported by the United
Nations during the drafting of Universal Declaration of Human
Rights in the year 1948.

Around the world, 58 countries still practice awarding the

capital punishment. 102 countries do not award capital

32
punishment for any crime, i.e. total abolition. According to the
reports of Amnesty International China, Iraq, and Iran have
awarded highest number of death penalties in the recent years.
In Europe, the death sentence has been almost abolished
completely, except The Republic of Belarus retaining it. 

Position in India

Article 21 of the Indian Constitution states that no person shall

be deprived of his life and liberty except according to the
procedure laid down by law. Under Article 21, every person has
the Right to Life which has been guaranteed by the
Constitution.

The Indian Penal Code, 1860 provides for the provision of a

death sentence for various offenses like criminal conspiracy,
murder, waging war against the nation, dacoity and murder,
etc. Various other legislations like the NDPS ACT and Unlawful
Activities Prevention Act also provides for the death penalty.

Under Article 72, the Constitution has created a provision for

clemency of capital punishment. Under this Article, the
President of India has the power to grant pardon, or commute
or remit the death sentence in certain cases. Similarly, Article
161 provides for powers of the Governor of the State to grant
clemency.

Also, when a Sessions Court awards the capital punishment, it

must be confirmed by the High Court of the particular state,
and then only the execution can be carried out.

These measures are necessary so as to remove any room for

error. These days, awarding life sentence has become the rule,
and death penalty an exception, which is awarded only in the
rarest of the rare case. The case of Jagmohan Singh v State of
U.P Was the first case in which the court had the opportunity to
discuss the Constitutionality of capital punishment. The council
for the appellant put forth the argument that capital
punishment takes away all the rights guaranteed under Article

33
19 (1) of the Constitution. The second argument which was
given that the discretion of which capital punishment was
awarded did not follow any fixed standard or policy. Thirdly it
was argued that this unguided and unfettered discretion
violated Article 14 of the constitution, which guarantees
equality before the law. It was stated that in many cases, the
situation arose that where two individuals had committed a
murder, one was awarded the capital punishment, and other
was awarded life imprisonment. The last argument which was
put forward was that the law does not provide any guidelines
which considers different factors and circumstances while
awarding death penalty or life imprisonment.

Capital Offences in IPC.

1. Section 121 Treason, for waging war against the

Government of India

2. Section 132 Abetment of mutiny actually committed 3.

Section 194 Perjury resulting in the conviction and death of an
innocent person

4. Section 195A Threatening or inducing any person to give

false evidence resulting in the conviction and death of an
innocent person

5. Section 302 Murder

6. Section 305 Abetment of a suicide by a minor, insane

person or intoxicated person

7. Section 307 (2) Attempted murder by a serving life convict

8. Section 364A Kidnapping for ransom

9. Section 376A Rape and injury which causes death or leaves

the woman in a persistent vegetative state

34
10. Section 376E Certain repeat offenders in the context of
rape

11. Section 396 Dacoity with murder Capital

Law Commission Report

A discussion on death penalty cannot be complete without

taking into consideration the 36 thReport of the Law Commission
of India, which was submitted by the Law Commission in 1967.

The Report stated that the issue of abolition or retention of

capital punishment should be decided after balancing the
arguments given in favor and in against of death penalty. A
single factor cannot decide the question of abolition or
retention of death penalty in the country. The Report also
vocally stated that the question of protecting the society must
be given prime consideration while deciding the issue.

The Commission did consider the strong arguments given for

abolition of capital punishment. They also considered the
concept of irrevocability attached with the punishment of a
death penalty. Nor did they ignore the fact that capital
punishment was very severe, and a modern approach was
required to deal with criminals. But considering the state of the
nation, the Commission stated that, keeping in mind the way of
upbringing of the citizen, the disparity level in educational and
moral levels of the people, the vastness of the area, the
diversity of the nation and the utmost need to preserve law
and order, India cannot risk abolishing the capital punishment
yet.

In the judicial pronouncement of Ediga Anamma v State of

Andhra Pradesh, Justice Krishna Iyer commuted the death
sentence of the accused to life imprisonment considering
factors like gender, age and socio-economic background of the
accused. In this case, the Court laid out that apart from looking
into the circumstances of the crime, the Court should also look
into the condition of the accused. This case was followed by

35
some important developments. Section 354 (3) was added to
the Code of Criminal Procedure, 1973 which stated that in
cases where capital punishment was being awarded, the Court
has to give special reasons for it. This made life imprisonment
a rule, and death penalty an exception, which was the other
way round earlier.

In 1979, India also became a signatory to the International

Covenant on Civil and Political rights (ICCPR) In the case of
Rajendra Prasad v State of U.P the Apex Court, however,
stated that the question whether capital punishment should be
abolished or retained was a question for the Legislature and
not for the Courts to decide.

The case of Bachchan Singh v State of Punjab again brought up

the question of the validity of capital punishment and in this
case, the doctrine of “rarest of the rare” was formulated. The
five Judge Bench stated that the taking of human life shouldn’t
be encouraged even in the form of punishment except in
“rarest of the rare” cases where no alternative method can be
used and is foreclosed.

When the validity of capital punishment was questioned, the

bench (majority decision) opined that capital punishment did
not violate either Article 19 or Article 21 of the Constitution.
They also pointed out to the fact that the makers of the
Constitution were fully aware that the capital punishment may
be awarded in some cases, and it was proved by the existence
of the provision of appeal and provision of pardoning powers of
the President and the Governor. It was also laid down that
mitigating, and aggravating factors should be considered while
deciding the matter.

In the judicial pronouncement of Mithu v. State of Punjab,

mandatory death sentence, under Section 303 Of IPC was
declared unconstitutional and deleted from the IPC. This
section was based on the logic that any criminal who has been
convicted for life and has committed a murder while in custody
is beyond reformation and do not deserve to live.

36
The case of Machchi Singh v State of Punjab elaborated the
doctrine of “rarest of rare.” The Court gave guidelines
regarding the things to be considered when deciding on the
issue that whether the case falls under the category of “rarest
of rare” or not. 

The following are-

1. Manner of Commission of the Crime: The Court

stated that if the crime were committed in extremely
brutal and diabolic manners so that it arouses the
intense indignation of the society, it’d fall under the
rarest of the rare case. Some instances were given like
when the house of the victim is set to flame with the
objective to burn him alive, or the victim is subjected to
inhuman cruelty and torture, or when the body of the
victim is chopped and mutilated, it’ll be considered as a
rarest of rare case.
2. Motive for Commission of the Crime: When the
crime is committed in furtherance to betray the nation,
or assassins are hired to kill the victim, or any
deliberate design is made to kill the victim in a cold-
blooded manner, it’ll also fall under the said category of
rarest of the rare.
3. Magnitude of the Crime: When the crime is
humongous in proportion, for example, killing all the
members of the family or a locality is done.
4. Socially Abhorrent Nature of Crime:When the crime
is such that it is socially abhorred, such as killing a
person belonging to the backward classes of the
community, or burning of a bride in case dowry wishes
are not met, or murdering a woman to remarry again.
5. Victim of the Crime: If the victim of the crime is a
small child, who couldn’t have provided any reason to
the accused to commit the crime, or the crime is
committed against a helpless woman, or an old person,
and if the victim was mentally challenged, or the victim
was a public figure who was loved by the society, the
crime will fall under rarest of the rare case.

37
In the case of Allauddin v State of Bihar, The Court stated that
in case the Court was unable to give a special reason for
awarding the capital punishment, the Court should go for a
lower sentence. In the case of Kehar Singh v Union of
India,Assassins of the then Prime Minister, Indira Gandhi, were
sentenced to death. Kehar Singh was one of the conspirators
who took part in the planning of the murder but did not commit
it. The Court stated that even this fell in the rarest of rare
category.

The case of Santosh Kumar Bariyar v State of Maharashtra Can

be considered one of the cases where a major step towards
abolition of the death sentence was taken. In the following
case, the accused along with three other people kidnapped a
person and then demanded a ransom of 10 lac rupees. When
the demands were not met, the kidnappers killed the victim
and chopped his body into pieces and then disposed of the
victim’s body by throwing, the pieces are various locations.
Although the manner in which the crime was committed was
extremely brutal, the Court considered the mitigating factors
and opined that the case was outside the ambit of “rarest of
the rare” category. The reasoning of the Court was that the
accused were not professional killers, and they committed the
crime with the sole motive of collecting money. The Court
opined that in such circumstances, there was a chance that
they might be reformed and opted for the lesser punishment of
life imprisonment.

In the year 2012, the judicial system had to suffer two major
embarrassments.The first instance was when fourteen retired
judges asked for thirteen cases of capital punishment to be
commuted admitting that the capital punishment was awarded
out of ignorance or error in these cases. The second instance
was where, the then President Pratibha Patil commuted the
death penalty of a convict to like imprisonment, and it was
later known that he had already died five years previously.

After these incidents, the protest against awarding of capital

punishment gained more momentum. In 2012, Ajmal Amir

38
Kasab was executed by the State for his involvement in the
Mumbai Terror Attack. Then in 2013, Mohd. Afzal, the
mastermind of the 2001 Parliament Attack was also executed.
The verdict of the Nirbhaya Rape case was also given in 2013
where the accused were awarded death sentence; this decision
also reignited the debate regarding the death penalty.

Concluding Remarks

India’s view on the issue of capital punishment is still very

topsy-turvy. The debate is not only about the legality of the
punishment but also include social and moral aspects. If the
question of law is kept aside, two views can be given on the
issue. The first view is the security of the society, and the
public sentiments. The counter view is that it promotes the
principle of “eye for an eye” which can’t be accepted in a
civilized society. On one hand by retaining the death sentence,
we may condemn someone to death, who turns out to be
innocent. On the other hand, by giving a second chance to
someone, we might be giving them a bullet to shoot us, just
because they missed the first time.

Q.6. Rape.
'375. A man is said to commit "rape" if he-—
a.     penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
b.    inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him or any other
person; or
c.     manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any ~
of body of such woman or makes her to do so with him or
any other person; or
d.    applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other

39
 person, under the circumstances falling under any of the
following seven descriptions:— First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is
not her husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of any
stupefying or unwholesome Substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.—With or without her consent, when she is under
eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this section, "vagina" shall
also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:
Provided that a woman who does not physically resist to the
act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not
onstitute rape.
Exception II.—Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is
not rape.
Punishment for rape.

40
376.
1.     Whoever, except in the cases provided for in sub-
section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which shall
not he less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.
2.     Whoever,—
a.     being a police officer, commits rape—
                      i.        within the limits of the police station to
which such police officer is appointed; or
                     ii.        in the premises of any station house; or
                    iii.        on a woman in such police officer's
custody or in the custody of a police officer
subordinate to such police officer; or
b.    being a public servant, commits rape on a woman in
such public servant's custody or in the custody of a
public servant subordinate to such public servant; or
c.     being a member of the armed forces deployed in an
area by the Central or a State Government commits
rape in such area; or
d.    being on the management or on the staff of a jail,
remand home or other place of custody established by
or under any law for the time being in force or of a
women's or children's institution, commits rape on any
inmate of such jail, remand home, place or institution;
or
e.     being on the management or on the staff of a
hospital, commits rape on a woman in that hospital; or
f.     being a relative, guardian or teacher of, or a person
in a position of trust or authority towards the woman,
commits rape on such woman; or
g.    commits rape during communal or sectarian violence;
or

41
 h.     commits rape on a woman knowing her to be
pregnant; or
i.      commits rape on a woman when she is under sixteen
years of age; or
j.      commits rape, on a woman incapable of giving
consent; or
k.     being in a position of control or dominance over a
woman, commits rape on such woman; or
l.      commits rape on a woman suffering from mental or
physical disability; or
m.   while committing rape causes grievous bodily harm
or maims or disfigures or endangers the life of a
woman; or
n.     commits rape repeatedly on the same woman, shall
be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural
life, and shall also be liable to fine.
Explanation.—For the purposes of this sub-section,—
a.     "armed forces" means the naval, military and air forces
and includes any member of the Armed Forces constituted
under any Jaw for the time being in force, including the
paramilitary forces and any auxiliary forces that are under
the control of the Central Government!, or the State
Government;
b.    "hospital" means the precincts of the hospital and
includes the precincts of any institution for the reception
and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation;
c.     "police officer" shall have the same meaning as
assigned to the expression "police" under the Police Act,
1861;

42
 d.    "women's or children's institution" means an institution,
whether called an orphanage or a home for neglected
women or children or a widow's home or an institution
called by any other name, which is established and
maintained for the reception and care of women or
children.
Punishment for causing death or resulting in persistent
vegetative state of victim.
376A. Whoever, commits an offence punishable under sub-
section (l) or sub¬section (2) of section 376 and in the course
of such commission inflicts an injury which causes the death of
the woman or causes the woman to be in a persistent
vegetative state, shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but which
may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, or
with death.
Sexual intercourse by husband upon his wife during
separation
376B. Whoever has sexual intercourse with his own wife, who
is living separately, whether under a decree of separation or
otherwise, without her consent, shall be punished with
imprisonment of either description for a term which shall not be
less than two years but which may extend to seven years, and
shall also be liable to fine.
Explanation.—In this section, "sexual intercourse" shall mean
any of the acts mentioned in clauses (a) to (d) of section 375.
Sexual intercourse by person in authority.
376C. Whoever, being—
a.     in a position of authority or in a fiduciary relationship;
or
b.    a public servant; or
c.     superintendent or manager of a jail, remand home or
other place of custody established by or under any law for

43
 the time being in force, or a women's or children's
institution; or
d.    on the management of a hospital or being on the staff
of a hospital, abuses such position or fiduciary relationship
to induce or seduce any woman either in his custody or
under his charge or present in the premises to have
sexual intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished with
rigorous imprisonment of either description for a term
which shall not be less than five years, but which may
extend to ten years, and shall also be liable to fine.
Explanation l.—In this section, "sexual intercourse" shall mean
any of the acts mentioned in clauses (a) to (d) of section 375.
Explanation 2. —For the purposes of this section, Explanation I
to section 375 shall also be applicable.
Explanation 3.—"Superintendent", in relation to a jail, remand
home or other place of custody or a women's or children's
institution, includes a person holding any other office in such
jail, remand home, place or institution by virtue of which such
person can exercise any authority or control over its inmates.
Explanation 4.—The expressions "hospital" and "women's or
children's institution" shall respectively have the same meaning
as in Explanation to sub-section (2) of section 376.
Gang rape.
376D. Where a woman is raped by one or more persons
constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with
rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to life which shall mean
imprisonment for the remainder of that person's natural life,
and with fine:
Provided that such fine shall be just and reasonable to meet
the medical expenses and rehabilitation of the victim:

44
Provided further that any fine imposed under this section shall
be paid to the victim.
Punishment for repeat offenders.
376E. Whoever has been previously convicted of an offence
punishable under section 376 or section 376A or section 3760
and is subsequently convicted of an offence punishable under
any of the said sections shall be punished with imprisonment
for life which shall mean imprisonment for the remainder of
that person's natural life, or with death.'
CASE LAWS ON

I. Om Prakash Vs Dil Bahar (2006)

What: A rape accused could now be convicted on the sole
evidence of the victim, even if medical evidence did not prove
rape.
Case Speak: The victim, six months pregnant, was in court
because her husband was facing challan proceedings. The
accused was a relative and had come to attend the same.
Finding her in isolation outside the Zilla Parishad, the accused
tried to rape her. However, she raised an alarm and the
accused was assaulted by the locals and handed over to the
police. Although no evidence of rape was found, the accused
was given a seven-year sentence based on the statement of
the victim and eyewitness accounts.
A statement from the court read, “It is settled law that the
victim of sexual assault is not treated as accomplice and as
such, her evidence does not require corroboration from any
other evidence including the evidence of a doctor. In a given
case even if the doctor who examined the victim does not find
sign of rape, it is no ground to disbelieve the sole testimony of
the prosecutrix. In normal course a victim of sexual assault
45
does not like to disclose such offence even before her family
members much less before public or before the police. The
Indian woman has the tendency to conceal such offence
because it involves her prestige as well as the prestige of her
family. Only in few cases does the victim girl or the family
members have the courage to go before the police station and
lodge a case. In the instant case, the suggestion given on
behalf of the defence that the victim has falsely implicated the
accused does not appeal to reasoning. There was no apparent
reason for a married woman to falsely implicate the accused
after scatting her own prestige and honour.”
II. The Anchorage Case (2011)
What: Restoration of the conviction and sentence of six-year
rigorous imprisonment imposed on two British nationals who
were acquitted by the Bombay High Court in a pedophilia case.
Case Speak: Two Britons, Duncan Grant and Allan Waters, ran
the Anchorage Shelter Home in Colaba, Mumbai, where they
sexually abused children for years. In 2001, working on a tip-
off, Childline NGO gathered evidence and filed a case against
the two British nationals. The sexual abuse of the boys at
Anchorage Shelters was also brought to the notice of Advocate
Ms. Maharukh Adenwalla who works on issues of child rights
and she brought the same to the attention of the Bombay High
Court. After the facts became public, the two British nationals
absconded but were made to face trial after a lengthy
extradition process.
After taking all the facts, evidence and witness accounts, the
sessions court convicted them under sections 120 B, 107, 373

46
and 377 IPC and sentenced Grant and Waters to six years
imprisonment and a fine of 20,000 pounds each. However, they
challenged this in the Mumbai High court, and in a shocking
judgement, were acquitted of all charges. Finally, the case
went to the Supreme Court, which overturned the High court’s
judgement (uncommon to say the least) and restored the
original sentence, thereby convicting the paedophiles. The
judges, while passing the judgement, rightly said, “A deterrent
punishment is being imposed in order to help wipe out the
name of India from the map of sex tourism. Let paedophiles all
over the world know that India should not be their destination
in the future. Children are the greatest gift to humanity. The
sexual abuse of children is one of the most heinous crimes.”
III. The Nirbhaya Case (2012)
What: 4 out of 5 rape accused received the death sentence
and as a result of this case the rape law was amended to
go beyond penile-vaginal intercourse. The new definition
penalizes penetration of any orifice of the woman with any part
of the man’s body or with any object. 
Case Speak: This hardly requires retelling given the freshness
of it in the nation’s collective consciousness, but here it is
anyway. A young girl was returning home with a male friend
after watching a movie. They boarded a bus and soon figured
out that something was wrong. The six people on board,
including the driver knocked the boy unconscious with an iron
rod and then raped her one at a time. They shoved an iron rod
in her vagina, severely damaging her intestines, abdomen and

47
genitals. Finally, they threw the boy and the woman out of the
bus, and drove away.
The woman was rushed to the hospital and the men were
arrested within 24 hours. Eventually, the woman succumbed to
her injuries, and the men immediately went on trial. While on
trial, one of the accused committed suicide in jail. The
remaining five were subsequently charged for rape and
murder. The four adults were granted a death penalty, while
the minor was sent to a reform facility for three years.
V. Section 377 (2013)
What: Criminalisation of “unnatural sex” which includes gay
sex, sex with animals, sex with minors and fellatio.
Case Speak: The law, established in 1861, was enforced to
criminalise sexual activities that were against the order of
nature, which at that point included homosexual activities.
What is little known, however, is that it extends to any sexual
union involving penile insertion. Thus, even consensual
heterosexual acts such as fellatio and anal penetration may be
punishable under this law. In 2009, in a landmark judgement
the Delhi High Court scrapped section 377, citing it
unconstitutional with respect to sex between consenting adults.
However, the celebrations, and respite, were short-lived when
in a bizarre turn of events the judgement was overturned by
the Supreme Court of India. It ruled that Section 377 in the
Indian Penal Code will continue making gay sex “irrespective of
age and consent” an offence punishable with a sentence up to
life term and put the onus on Parliament to consider the

48
desirability and propriety of deleting Section 377 from the
statute book or amend it.

Shakti Mills gang rape

The 2013 Mumbai gang rape, also known as the Shakti

Mills gang rape refers to the incident in which a 22-year-old
photojournalist, who was interning with an English-language
magazine in Mumbai, was gang-raped by five people, including
a juvenile. The incident occurred on 22 August 2013, when she
had gone to the deserted Shakti Mills compound,
near Mahalaxmi in South Mumbai, with a male colleague on an
assignment. The accused had tied up the victim's colleague
with belts and raped her. The accused took photos of the victim
during the sexual assault, and threatened to release them to
social networks if she reported the rape. Later, an eighteen
year old call centre employee reported that she too had been
gang-raped, on 31 July 2013 inside the mills complex. [3]
On 20 March 2014, a Mumbai sessions court convicted all five
adult accused in both cases on 13 counts. On 4 April 2014, the
court awarded the death penalty to the three repeat offenders
in the photojournalist rape case. For the other two accused,
one was awarded life imprisonment while the other accused
turned approver in the case. Two minors, one in each case,
were tried by the Juvenile Justice Board separately. They were
convicted on 15 July 2015, and sentenced to three years
(including time in custody) in a Nashik reform school, the
maximum punishment that a juvenile offender can receive
under Indian law.

49
Q.6. Amendment of the Provisions of the Indian Penal
Code, 1860

The Criminal Law (Amendment) Act, 2013 that came into force
on the 3rd of February, 2013 amended as well as inserted new
sections in the IPC with regard to various sexual offences. The
new Act has expressly recognized certain acts as offences
which were dealt under related laws. New offences like, acid
attack, sexual harassment, voyeurism, stalking have been
incorporated into the Indian Penal Code.

Sexual Offences
·       Sexual Harassment – Section 354A

Sexual harassment is bullying or coercion of a sexual nature, or

the unwelcome or inappropriate promise of rewards in
exchange for sexual favors. The critical factor is the
unwelcomeness of the behaviour, thereby making the impact of
such actions on the recipient more relevant rather than intent
of the perpetrator.

The essentials of the offence of sexual harassment as defined

in the case of Vishaka v. State of Rajasthan are –

1. physical contact and advances involving unwelcome and

explicit sexual overtures; or
2. a demand or request for sexual favours; or
3. making sexually coloured remarks; or
4. forcibly showing pornography; or
5. any other unwelcome physical, verbal or non-verbal
conduct of sexual nature.

According to the Indian Constitution, sexual harassment

infringes the fundamental right of a woman to gender equality
under Article 14 and her right to life and live with dignity under
Article 21.

Provisions after Amendment

Section 354A – Sexual harassment has been made a gender

neutral offence whereas earlier, a man who makes unwelcome
sexual advances, forcefully shows pornography or
50
demands/requests sexual favours from a woman commits the
offence of sexual harassment simpliciter under section 354A;
this is punishable by imprisonment of up to three years. Making
sexually coloured remarks also amounts to sexual harassment,
which is punishable by imprisonment for up to one year.[xv]

·       Assault or Use of Criminal Force to woman with

intent to disrobe – Section 354B

Existing Provisions

There was no specific provision regarding this offence. The act

was dealt under Section 354. Outraging a woman’s modesty
was punishable with imprisonment for maximum 2 years and
fine under IPC.

Provisions after Amendment

Section 354B – If a man assaults or uses criminal force to any

woman or abets such act with the intention of disrobing or
compelling her to be naked in any public place, he commits an
offence under section 354B, which is punishable with
imprisonment between three and seven years.

This section deals with a very specific offence and adds to and
supplements the provision dealing with the offence of outraging
the modesty of a woman. This is a welcome provision in view of
the fact that many cases have been reported in the news of
women being stripped in public as an instrument of punishment
mostly in backward areas.

·       Voyeurism – Section 354C

Voyeurism is the act of watching a person engaged in private

activities. If a man watches a woman engaged in private
activities, when the woman does not expect anyone to be
watching, he has committed the offence of voyeurism.

Existing Provisions

There was no specific offence under IPC. However, under

Information Technology Act, 2000 both men and women were

51
protected and punishment for the act was up to 3 years and/or
fine up to Rs. 2 lakh.

Provisions after Amendment

Section 354C – Any man who watches, or captures the image

of a woman engaging in a private act in circumstances where
she would usually have the expectation of not being observed
either by the perpetrator or by any other person at the behest
of the perpetrator or disseminates such image shall be
punished. Under Section 354C, such a person is liable.

In case of first conviction, imprisonment is not to be less than

one year, but may extend to three years, and shall also be
liable to fine, and on a second or subsequent conviction,
punishment with imprisonment of either description for a term
which shall not be less than three years, but which may extend
to seven years, and shall also be liable to fine.[xviii]

·       Stalking – Section 354D

It means following a person and making or attempting to make

contact for personal interaction, despite a clear disinterest
being displayed by the other person. Stalking may be
committed both physically and through electronic media.[xix]

Existing Provisions

No specific offence under IPC.

Provisions after Amendment

Section 354D – Stalking has been made a specific offence

under this new section. If a man stalks a woman, he may be
punished with imprisonment of up to three years for the first
time, and five years for the subsequent convictions. However,
the offence is subject to certain exceptions like where a person
can show that the acts done were in pursuance of some law,
amounted to reasonable conduct or in order to prevention of
some crime.

52
As per the definition in Section 354D the offence was gender-
neutral offence, making the crime of stalking punishable for
both the gender whether male or female. However, the
Amendment Act of 2013 changed ‘Whosoever’ to ‘Any
Man’ making the offence of Stalking a gender-specific offence.
Section 354D of the Ordinance of 2013, was highly inspired
from the definition of ‘Stalking’ in Section 2A of the Protection
from Harassment Act, 1997 passed by British Parliament on
25th November 2012.

Under the Act, the offence is limited to the physical act

of following or contacting a person, provided that there has
been a clear sign of disinterest, or to monitoring the use by a
woman of the internet, email or any other forms of electronic
communication.

·       Rape – Section 375 and 376 (also refer above

notes)

Justice Krishna Iyer in the case of Rafiq v. State of U.P. made a

remark that, “a murderer kills the body, but a rapist kills the
soul”. The Parliament by means of Amendment Act, 2013 has
enlarged the ambit of rape by making certain non-penetrative
act as offence amounting to rape. The Amendment Act, 2013
repealed the Ordinance (Amendment) Act, 2013 which was
having wider ambit, thereby raising serious questions regarding
the lacunas or loopholes that the judiciary could confront in
future. 

Gender-neutral or Gender-specific Offence

Earlier the offence of rape, i.e. ‘sexual assault’ was a gender

neutral offence, while now this offence is women centric. Only
a man is assumed to be capable of committing such offence
and that too against a woman only. The aspect of gender
neutrality was required in following aspects:

1. Neutrality with respect to the victim

Often the members of the marginalised sex like ‘Transgender’

are also victim of this offence and as such they cannot claim
any protection because the crime of rape is not gender neutral.

53
 2. Neutrality with respect to the perpetrator

During the war in Iraq it surfaced that many women officers

also involved themselves in torturing the prisoners by variant
sexual assault. This strengthened the assumption that even
women can be perpetrator of such crimes. There are two
occasions when the need for gender neutrality arises even in
India. Firstly, when during some communal or casteist violence
a women is found to be participus criminus. Secondly, when a
transgender person is an offender. The recent case of Pinki
Pramanik, where her partner filed a case of rape against her,
shows the very real possibility of female to male transgender
persons or male to female transgender persons (either pre- or
post- transition) causing sexual assault on a woman.

3. Marital Rape

The absence of law on marital rape (sexual assault), would also

fail the objective as married women cannot be protected. The
law under 376-A and exception under 375 should be deleted
equate marital rape and sexual assault. As the S. 3 of DVA only
applicable in grave life threatening scenario the need for
consent of woman isn’t important leaving her as an object of
sex.

Kidnapping and Abduction (Section 359- 373):

Kidnapping and Abduction for different purpose( section 363 to

373) : As per section 363 talks about punishments for
kidnapping Whoever kidnaps any person from India or from
lawful guardianship, shall be punished with imprisonment of
either description for a term which may extend to seven years,
and shall also be liable to fine. In Chandrakala v. Vipin
Menon,.  The supreme court declined to convict the father, who
was accused of kidnapping his minor daughter who was living
with her maternal grand father due to strained relationship
between her parents, on the ground that the accused was the
natural guardian of the child.

54
And as per section 359 defined as kidnapping, Kidnapping is
of two type: kidnapping from India, and kidnapping from lawful
guardianship.

As per section 360 talks about kidnapping from India

and section 361 talks about Kidnapping from lawful
guardianship. In State of Haryana v. Raja Ram, in this case
the prosecutrix was a young girl of 14 years. She became
friendly with a person called Jai Narain, aged 32, who was a
frequent visitor. When Jai narain was forbidden by prosecutrix’s
father from coming home, he sent massage through a Raja
ram. She was constantly persuaded to leave the house and
come with jai Narain, who would keep her in a lot of material
comfort. One night, the prosecutrix arranged to meet Jai
Narain in his house and went to meet  him where she was
seduced by Jai Narain.

Held:   It was held that Jai Narain was liable under section 376
for rape and Raja Ram under section 366.

As per section 364 talks about punishment, it means this

section provides that Kidnapping or abducting in order to
murder, it means Whoever Kidnaps or abducts any person in
order that such person may be murdered or may be so
disposed of as to be put in danger of being murdered, shall be
punished with imprisonment for life or rigorous imprisonment
for a term which may extend to ten years, and shall also be
liable to fine.

Illustration:  ‘A’ kidnaps ‘Z’ from India, intending or knowing

it to be likely that ‘Z’ may be sacrificed to an Idol. ‘A’ has
committed offence in this section.

So, this section apply if a person has been abducted with

intention that he be murdered. (In Upendra Nath v.
Emperor.)  The actual muder of the person is not required. It
is sufficient that there was abduction with intent to murder.

As per 364A. Kidnapping for ransom, etc.—Whoever

kidnaps or abducts any person or keeps a person in detention
after such kidnapping or abduction and threatens to cause
death or hurt to such person, or by his conduct gives rise to a
55
reasonable apprehension that such person may be put to death
or hurt, or causes hurt or death to such person in order to
compel the Government or  any foreign State or international
inter-governmental organization or any other person to do or
abstain from doing any act or to pay a ransom, shall be
punishable with death, or imprisonment for life, and shall also
be liable to fine.

As per section 365 Kidnapping or abducting with intent

secretly and wrongfully to confine person.- Whoever
kidnaps or abducts any person with intent to cause that person
to be secretly and wrongfully confined, shall be punished with
imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.

As per section 366 kidnapping, abducting or inducing

woman to compel her marriage, etc.- 

Whoever kidnaps or abducts any woman with intent that she

may be compelled, or knowing it to be likely that she will be
compelled, to marry any person against her will, or in order
that she may be forced or seduced to illicit intercourse, or
knowing it to be likely that she will be forced or seduced to
illicit intercourse shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to fine; 1[and whoever, by means of criminal
intimidation as defined in this Code or of abuse of authority or
any other method of compulsion, induces any woman to go
from any place with intent that she may be, or knowing that it
is likely she will be, forced or seduced to illicit intercourse with
another person shall be punished as aforesaid.

As per section 366A procreation of minor girl.—Whoever,

by any means whatsoever, induces any minor girl under the
age of eighteen years to go from any place or to do any act
with intent that such girl may be, or knowing that it is likely
that she will be, forced or seduced to illicit intercourse with
another person shall be punishable with imprisonment which
may extend to ten years, and shall also be liable to fine.

56
As per section 366B Importation of girl from foreign
country- Whoever imports into2[India] from any country
outside India or from the State of Jammu and Kashmir] any girl
under the age of twenty-one years with intent that she may be,
or knowing it to be likely that she will be, forced or seduced to
illicit intercourse with another person, shall be punishable with
imprisonment which may extend to ten years and shall also be
liable to fine.

As per section 367 Kidnapping or abducting in order to

subject person to grievous hurt, slavery, etc.- Whoever
kidnaps or abducts any person in order that such person may
be subjected, or may be so disposed of as to be put in danger
of being subject to grievous hurt, or slavery, or to unnatural
lust of any person, or knowing it to be likely that such person
will be so subjected or disposed of, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

As per section368 Wrongfully concealing or keeping in

confinement, kidnapped or abducted person-  Whoever,
knowing that any person has been kidnapped or has been
abducted, wrongfully conceals or confines such person, shall be
punished in the same manner as if he had kidnapped or
abducted such person with the same intention or knowledge, or
for the same purpose as that with or for which he conceals or
detains such person in confinement.

As per section 369 Kidnapping or abducting child under

ten years with intent to steal from its person-Whoever
kidnaps or abducts any child under the age of ten years with
the intention of taking dishonestly any movable property from
the person of such child, shall be punished with imprisonment
of either description for a term which may extend to seven
years, and shall also be liable to fine.

As per section 370 Buying or disposing of any person as

slaves– Whoever imports, export, removes, buys, sells or
disposes of any person as a slave, or accepts, receives or
detains against his will any person as slave, shall be punished

57
with imprisonment of either description for a term which may
extend to seven years and shall also be liable to fine.

As per section 371 talks about Habitual dealing in

slaves– Whoever habitually imports, exports, removes, buys,
sells, traffics or deals in slaves, shall be punished
with 1[imprisonment for life] or with imprisonment of either
description for a term not exceeding the years, and shall also
be liable to fine.

As per section 372 selling minor for purpose of

prostitution, etc.-Whoever sells, lets to hire, or otherwise
disposes of any person under the age of eighteen years with
intent that such person shall at any age be employed or used
for the purpose of prostitution or illicit intercourse with any
person or for any unlawful and immoral purpose, or knowing it
to be likely that such person will at any age be] employed or
used for any such purpose, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall be liable to fine.

 Explanation I– When a female under the age of eighteen

years sold, let for hire, or otherwise disposed of to a prostitute
or to any person who keeps or manages a brothel, the person
so disposing of such female shall, until the contrary is proved,
be presumed to have disposed of her with the intent that she
shall be used for the purpose of prostitution.

Explanation II

For the purposes of this section “illicit intercourse” means

sexual intercourse between persons not united by marriage or
by any union or tie which, though not amounting to a
marriage, is recognized by the personal law or custom of the
community to which they belong or, where they belong to
different communities, of both such communities, as
constituting between them a quasi -marital relation.

As per section 373 talks about Buying minor for the purpose

of prostitution etc.- Whoever buys, hires or otherwise obtains
possession of any 1[person under the age of eighteen years
with intent that such person shall at any age be employed or
58
used for the purpose of prostitution or illicit intercourse with
any person or for any unlawful and immoral purpose, of
knowing it to be likely that such person will at any age be]
employed or used for any purpose, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

Explanation I Any prostitute or any person keeping or manag-

ing a brothel, who buys, hires or otherwise obtains possession
of a female under the age of eighteen years shall, until the
contrary is proved, be presumed to have obtained possession
of such female with the intent that she shall be used for the
purpose of prostitution.

1. Homicide for dowry, dowry deaths or their attempts

discussed under section 302 and 304-B and also
under section 174(3) of CrPc:

As per section 304B. Dowry death.—(1) 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.

Explanation– For the purpose of this sub-section, “dowry”

shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961). (2) Whoever commits
dowry death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extend
to imprisonment for life.

As per section 302 talks about punishment for murder it

means Whoever commits murder shall be punished with death,
or [imprisonment for life] and shall also be liable to fine.

1. Sexual Harassment : As per section 509 talks about Word

gesture or act intended to insult the modesty of a woman.

59
  Importation of girls (up to 21years age): section 366B of
IPC talks about Importation of girls.

1. Torture, both mental and physical: As per section 498-A

talks about Torture, both mental and physical.

The crimes identified under the special laws: Although all laws
are not gender specific, the provisions of law affecting women
significantly have been reviewed periodically and amendments
carried out to keep pace with the emerging requirements.
Some acts which have special provisions to safeguard women
and their interests are:

1. The employees Insurance Act,1948

2. The Plantation Labour act, 1951
3. Special marriage Act, 1954
4. The Hindu marriage Act, 1955
5. Dowry Prohibition Act, 1961
6. The equal Remuneration Act, 1976
7. The child marriage Restraint(Amendment) Act, 1979
8. Commission of Sati(Prevention) Act, 1987
9. Hindu succession Act,1956.

Q. 7. OFFENCES RELATING TO MARRIAGE

(Matrimonial offences)-

Women being of defensive and non aggressive nature, of

muscularly weaker physique, and due to her vulnerable
physical condition and Indian social culture deserve to have
protection of Law. The Indian Penal code provides many
matrimonial protections. Some of them are applicable to both
spouses but seems more to protect the women in particular.
The provisions for the offences relating to the marriage are
described under sections 493 to 498 of IPC.

(a) Cohabitation by fraud and Inducement- Section 493

IPC provides for the definition of Cohabition by fraud and
Inducement as follows Every man who by deceit causes any
woman who is not lawfully married to him to belief that she is
lawfully married to him and to cohabit or have sexual
intercourse with him in that belief commits the offence of mock

60
marriage. It is punishable with imprisonment up to 10 years
and fine. The essence of this offence lies in the practice of
deception. To prove deception it must be conclusively
established that the petitioner either dishonestly or fraudulently
concealed certain facts from a girl, or made false statements
knowing them to be false. This section punishes a man either
married or unmarried who induces a woman to become, as she
thinks herself his wife, but in reality his concubine. This offence
may be committed by a person falsely causing a woman to
believe that he is of the same race or creed as her and thus
inducing her to contract a marriage, knowing that such
marriage is illegal in the eyes of law but which she believes as
a valid marriage. The Calcutta High Court in kartic Kundu case
held that offence under this section may also be punished as
rape under section 375. In Suman V. State of M.P. the court
opined that In case of deceitful marriage it is immaterial
whether the woman so deceived is a major or not. A minor can
be induced to believe, or deceived just as much as an adult can
be induced to believe or deceived. As a matter of fact a minor
can be deceived more easily than adult. Where both the man
and woman fully knew that they were not husband and wife
and no ceremony of marriage took place between them, there
is no question of them believing otherwise. But, where the
allegation was that though they were not husband and wife,
they had sexual union during late hours in the night for a
pretty long time and there was only a promise to marry in
future, and the further allegation was that one day they went
for registering the marriages but the man ran away from and
even thereafter she submitted herself to him regularly for
liaison, the facts could not at all attract section 493 IPC. was
held in Moideen Kutty Haji V. Kunhi Koya This section punishes
the offence committed, when a man, either married or
unmarried, induces a woman to become as he thinks, his wife,
but he really his concubine. The form of the marriage
ceremony depends on the race or religion to which the person
entering into the marriage belongs. When races are mixed, as
in India, and religion may be changed or dissembled, this
offence may be committed by a person falsely causing a
woman to believe that he is of the same race or creed as
herself and thus inducing her to contract a marriage, in reality
unlawful, but which according to law under which she lives, is
61
valid. Suppose a person, half English, half Asiatic by blood,
calls himself a Muslim or Hindu and by his deception causes a
Muslim or a Hindu woman to go through the ceremony of
marriage in a form which she deems valid and to cohabit with
him, he has committed this offence. Since the offence under
this section is purely of personal nature, the prosecution could
be initiated only by the aggrieved party on a complaint made to
the Magistrate of First class. However on the death of the
complainant her mother can be substituted as a party and the
case would proceed as per law. The offence is punishable upto
10 years of imprisonment with fine and is non bailable, non
cognizable, non compoundable. In Bhukla Bai V. Ganga Ram,
Supreme Court made remark that Hindu marriage Act does not
provide any penalty for such mock marriages. The Supreme
Court made this remark with respect to second marriage i.e.
void marriages.

(b) Bigamy According to section 494 of Indian Penal

Code. ―Whoever, having a husband or wife living, marriages
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 to 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. The scope of this section
is wide. It is applicable to both husband and wife. The section
makes bigamy an offence is case of all person living in India
irrespective of religion of either sex, namely, Hindus Christian,
Parsis, except Muslim males. In the case of Muslims however a
distinction is drawn between a male and a female, as Muslim
personal law permits polygamy for males (upto 4 wives) but
62
insists on monogamy for females. Thus a Muslim male
marrying a fifth wife during the continuous of for earlier
marriage; and a Muslim wife marrying during the subsistence
of an earlier marriage, are punishable under section 494 IPC.
However, if a Muslim man marriage under special marriage Act,
1954 he would be guilty of bigamy under section 494, IPC, if
he enters into another marriage under Muslim law, In Radhika
sameena V. SHO habeeb Nagar Police Station. the Andhara
Pradesh High Court held that when the respondent‘s marriage
with the petitioner had taken place not under Muslim law, but
under special marriage Act, the provisions of the special Act
would be applicable and not of the Muslim Law, Accordingly,
the court held that the petitioner was entitled to compensation
and declared the second marriage as void. The phrase whoever
having a husband or wife living, „marries‟ means whoever
marries validly or whoever marries and whose marriage is a
valid one‘. To attract the provisions of section 494 IPC, both
the first and the second marriage must be a valid marriage in
law. In case either of the marriage is not valid according to the
law applicable to the parties, it will not be a marriage in the
eyes of the law that will attract section 494 IPC. In Bhaurao
Shanker Lokhonde V. State of Maharastra. The Supreme Court
held that the mere fact‘ a man and a woman living together as
a husband and wife does not at any rate normally give them
the status of husband and wife even though they might hold
themselves out before the society as husband and wife and
society treats them accordingly Likewise, the mere keeping of a
concubine or mistress is not a marriage and is sufficient to
invoke this section . Divorce dissolves a valid marriage and the
parties obtaining such dissolution can re marry. Similarly after
the deaths of one of the spouses the other is free to marry.
Section 494 IPC and section 17of Hindu Marriage Act Section
17of the Hindu marriage Act, 1955 makes bigamy among
Hindus punishable under section 494 and 495, I.P.C. In
Bhaurao Shanker Lokhands , the appellant, who was married to
the complainant Indubai in 1956, married Kamlabai in Feb.
1962 during the lifetime of Indubai and was convicted for
bigamy under section 494 IPC read with section 17 of the
Hindu Marriage Act, 1955 According to section 17 of the Act.
Any marriage between two Hindus solemnized after the
commencement of the Act is void if at the date of such
63
marriage either party had husband or wife living and the
provisions of section 494 and 495 of the IPC shall apply
accordingly. Hindus include Sikhs Jains, and Buddhists vide
Article 25, Explanation II to the Constitution of India. Thus
bigamy between two Hindus will be void if— (i)The marriage is
solemnized after the commencement of the Hindu Marriage
Act, and (ii)At the date of such marriage either party had a
spouse living Setting aside conviction, the Supreme Court held
that in the absence of the proof of the performance of the
essential ceremonies at the time of marriage between the
appellant and kamlabai, the marriage did not come within
section 17 of the Act and as such it did not come within the
mischief of section 494, IPC even though the first wife was
living when he married kamalabai in Feb, 1962. The court
observed that to constitute an offence of bigamy, marriage
must be celebrate with proper ceremonies and in due form
merely going through certain ceremonies with the intention
that the parties be taken to be married will not effect a
marriage between them. Such ceremonies being not prescribed
by law or approved by customs, the marriage is not a valid
marriage and so it is no marriage in the eyes of the law for the
purpose of bringing the case of bigamy within section 494

(i) Mensrea in Bigamy- The fundamental principle of penal

liability is that an act alone does not amount to a crime. It
must be accompanied by guilty mind, as laid down by the Latin
Maxim actus non facit reum nisi mens sit rea therefore if a
person is to be punished under criminal law it is generally
agreed that he must have done some criminal act, and he must
have done such a with a guilty mind (Mensrea) Though section
494 IPC makes no reference to intention or knowledge as a
constituent element of the offence of bigamy the courts in
India following famous English case R.V. Tolson where it was
held that the moral presumption that a penal statute requires
some mensrea must be given effect. Thus guilty knowledge is a
necessary element of the offence under section 494 IPC. In
Sankaran Sukumaran V Krishnan saraswathy. The Karela High
Court observed that the recitals in the divorce deed clearly
showed that the parties honestly believed that they were no
longer husband and wife. In the circumstances, it had to be
held that the accused when he contracted a second marriage
64
acted on the bonafide belief that his first marriages was put to
an end, and thereby he was doing no wrong act. Fraudulent
(Unlawful) marriage

Section 496 of Indian Penal Code ―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. Sometimes men entrap unsuspecting women by going
through the ceremony of being married dishonestly or with
fraudulent intentions, knowing fully well that he is not thereby
lawfully married. Such cases are covered by section 496 IPC. It
applies to all cases in which a ceremony is gone through but
such ceremony in no case constitute a marriage and in which
one of the parties is deceived by the other. The essence of the
offence is that the marriage ceremony should be fraudulently
gone through and that there should be no lawful marriage the
parties to the marriage or at least one of the parties must have
the knowledge that there is no lawful marriage In other words,
to constitute the offence under this section the prosecution
must prove that the accused know that there was no valid
marriage and he had gone through a show of marriage with a
fraudulent or ulterior motives. But if the accused intends to
perform a valid marriage and honestly goes through the
necessary ceremonies during the lifetime of the other spouse,
it will be an act of bigamy punishable under section 494 IPC.
This section applies to those situation where a fake ceremony
is gone through pretending it to be a valid marriage, Such a
marriage would not constitute a valid marriage. The offence of
bigamy is different from the offence under section 496 IPC. If
the accused intends that there should be a valid marriage and
honestly goes through the ceremonies during the life time of
other spouse then it may be a case under section 494 IPC but
if the accused intends that there should be only a show of
marriage and dishonestly and fraudulently goes through the
marriage ceremony knowing fully well that he is not legally
married then it is an offence under section 496 IPC (D )

Adultery According to section 497 IPC

65
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 the both In such case the
wife shall not be punishable as an abettor. Sexual intercourse
not amounting to the offence of rape is adultery. Adultery is a
flagrant violation of a woman‘s dignity. The legal provision and
the social attitudes reinforces her subordinate status to society.
She is the property of her husband and cannot even fight
independently regain to region her lost prestige. Adultery is an
invasion on the right of the husband over his wife. In other
words, it is an offence against the sanctity of the matrimonial
home and an act which is committed by a man. It is an anti-
social and illegal act. It consists in having carnal knowledge of
a married woman with knowledge of that fact without the
consent or connivance of her husband. According to Indian
Penal Code, adultery is a voluntary extra marital sexual
intercourse by a man with a woman whom he knows or has
reason to believe, to be the wife of another, without the
consent or connivance of her husband. This section regards
adultery as an infringement of the right of husband towards his
wife therefore it is an offence. No court shall take cognizance of
this offence unless there is a complaint by the husband. This
section makes knowledge that the woman is another man‘s
wife an essential element of the crime. It is not essential that
the adulterer should know whose wife she is, provided he knew
that she was married woman. To sustain a conviction under
this section the conviction must not only prove that the
accused had sexual intercourse with his wife but also the fact
that the act was done without his consent and connivance.
Connivance here means willing consent to a conjugal offence to
a course of conduct reasonable likely to lead to the offence
being committed. Thus adultery is an offence committed by a
man against a husband in respect of his wife. It is not
committed by a man who had sexual intercourse with an
unmarried or a prostitute woman, or with a widow or even with
a married woman whose husband consents to it or with his
connivance. Connivance is a figurative expression which means
66
a voluntary blindness to some present act or conduct, to
something going on or before the eyes, or something which is
known to be going on, with no protest or desire to disturb or
interfere with it. The consent or the willingness of the woman is
no excuse to the crime of adultery. Wife not guilty for Adultery-
Adultery under section 497 IPC is limited in scope as compared
to the misconduct of adultery as understood in divorce
proceeding. As discussed before, the offence is committed only
by a man. Who has sexual intercourse with the wife of another
man and without the latter‘s consent as connivance. The wife is
not punishable for being an adultress, or even as abettor of the
offence, despite being a consenting party to the crime. She as
an abettor will get away with it. Constitutionality of section 497
The constitutional validity of the section 497, IPC was
impugned under Article 14 on the ground that the law with
regard to adultery operates unequally as a between man and
woman. The Supreme Court in Yusuf Abdul Aziz V. State of
Bombay held that Section 497, IPC is not ultra virus of the
constitution. It does not offend articles 14 and 15 of the
constitution on the ground that the wife with whom adultery is
committed is saved from the purview of the section and is not
punished as an abettor. Sex is a sound classification accepted
in article 15 (3) of the Constitution. The Supreme Court
affirmed his view in Sowmithri Vishnu V. Union of India414
while dismissing the petition challenging the provision, under
section 497 IPC, which create the offence of adultery as
unconstitutional, The court held that section 497 IPC cannot be
said to be violative of article 14 of the constitution on the
ground that it makes an irrational classification between men
and women In defining the offence of adultery so as to restrict
the class of offenders to men only, it was held that no
constitutional provision has been infringed. It is commonly
accepted that it is the man who is a seducer and not the
woman . The court further observed that the position might
have undergone some change over the year, but it is for the
legislature to consider whether section 497 IPC should be
amended appropriately so as to take note of the transformation
which society has undergone. The court observed that the fact
that a provision for hearing the wife is not contained is section
497 IPC cannot make the section unconstitutional as violating
article 21 of the Constitution. It is true that, section 497 IPC
67
does not contain a specific provision for hearing the married
woman, but that does not justify the proposition that she is not
entitled to be heard at the trial, if she makes an application to
the court to this effect. According to the Penal code adultery is
an act of which only a man be guilty of. It is an offence which
is committed by a third person against husband in respect of
his wife. Adultery in criminal procedure code415 has a much
wider significance. It is contemplated in the popular sense of
the term viz, a breach of matrimonial ties by either party but
under IPC the definition of this crime in rather narrow.

Chapter XX-A of Indian Penal Code, 1860, refers to

‘cruelty by husband or relatives of husband’ and includes
section 498-A.

Section 498-A states, that whoever being the husband or

relative of the husband of woman, subjects such woman to
cruelty shall be punished with the imprisonment for a term
which may extend to three years and also be liable to fine.

Explanation- For the purpose of this section, “cruelty” means-

(a) Any wilful conduct which is of such nature as is likely to

drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of
the woman; or

(b) Harassment of the woman where such harassment is with

view to coercing her or any person related to her meet any
unlawful demand for any person related to her to meet such
demand.

The section was enacted to combat the menace of dowry

deaths. It was introduced in the code by the Criminal Law
Amendment Act, 1983 (Act 46 of 1983). By the same Act
section 113-A has been added to the Indian Evidence Act to
raise presumption regarding abetment of suicide by married
woman. The main objective of section 498-A of I.P.C is to
protect a woman who is being harassed by her husband or
relatives of husband.

Section 113-A of Indian Evidence Act, reads as follows:

68
Sec. 113-A, Presumption as to dowry death- When the
question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such
woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry,
the Court shall presume that such person had caused the
dowry death.

Explanation- For the purpose of this section ‘dowry death’ shall

have the same meaning as in section 304-B of the Indian Penal
Code (45 of 1860).

The object for which section 498A IPC was introduced is amply
reflected in the Statement of Objects and Reasons while
enacting Criminal Law (Second Amendment) Act No. 46 of
1983. As clearly stated therein the increase in number of dowry
deaths is a matter of serious concern. The extent of the evil
has been commented upon by the Joint Committee of the
Houses to examine the work of the Dowry Prohibition Act,
1961. In some of cases, cruelty of the husband and the
relatives of the husband which culminate in suicide by or
murder of the helpless woman concerned, which constitute only
a small fraction involving such cruelty. Therefore, it was
proposed to amend IPC, the Code of Criminal Procedure,1973
(in short ‘the Cr.P.C’) and the Evidence Act suitably to deal
effectively not only with cases of dowry deaths but also cases
of cruelty to married women by the husband, in- law’s and
relatives. The avowed object is to combat the menace of dowry
death and cruelty.

The act of harassment would amount to cruelty for the purpose

of this section. Drinking and late coming habits of the husband
coupled with beating and demanding dowry have been taken to
amount to cruelty within the meaning of this section, but this
section has been held not to include a husband who merely
drinks as a matter of routine and comes home late. 6 In a case
before Supreme Court it was observed that this section has
given a new dimension to the concept of cruelty for the
purposes of matrimonial remedies and that the type of conduct
described here would be relevant for proving cruelty."

69
Meaning of Cruelty:

It was held in ‘Kaliyaperumal vs. State of Tamil Nadu’, that

cruelty is a common essential in offences under both the
sections 304B and 498A of IPC. The two sections are not
mutually inclusive but both are distinct offences and persons
acquitted under section 304B for the offence of dowry death
can be convicted for an offence under sec.498A of IPC. The
meaning of cruelty is given in explanation to section 498A.
Section 304B does not contain its meaning but the meaning of
cruelty or harassment as given in section 498-A applies in
section 304-B as well. Under section 498-A of IPC cruelty by
itself amounts to an offence whereas under section 304-B the
offence is of dowry death and the death must have occurred
during the course of seven years of marriage. But no such
period is mentioned in section 498-A.

In the case of Inder Raj Malik vs. Sumita Malik, it was held that
the word ‘cruelty’ is defined in the explanation which inter alia
says that harassment of a woman with a view to coerce her or
any related persons to meet any unlawful demand for any
property or any valuable security is cruelty.

Kinds of cruelty covered under this section includes following:

(a) Cruelty by vexatious litigation

(b) Cruelty by deprivation and wasteful habits

(c) Cruelty by persistent demand

(d) Cruelty by extra-marital relations

(e) Harassment for non-dowry demand

(f) Cruelty by non-acceptance of baby girl

(g) Cruelty by false attacks on chastity

(h) Taking away children

The presumption of cruelty within the meaning of section 113-

A, Evidence Act,1872 also arose making the husband guilty of
70
abetment of suicide within the meaning of section 306 where
the husband had illicit relationship with another woman and
used to beat his wife making it a persistent cruelty within the
meaning of Explanation (a) of section 498-A.

Constitution Validity of Section 498-A

In ‘Inder Raj Malik and others vs. Mrs. Sumita Malik’, it was
contended that this section is ultra vires Article 14 and Article
20 (2) of the Constitution. There is the Dowry Prohibition Act
which also deals with similar types of cases; therefore, both
statutes together create a situation commonly known as double
jeopardy. But Delhi High Court negatives this contention and
held that this section does not create situation for double
jeopardy. Section 498-A is distinguishable from section 4 of the
Dowry Prohibition Act because in the latter mere demand of
dowry is punishable and existence of element of cruelty is not
necessary, whereas section 498-A deals with aggravated form
of the offence. It punishes such demands of property or
valuable security from the wife or her relatives as are coupled
with cruelty to her. Hence a person can be prosecuted in
respect of both the offences punishable under section 4 of the
Dowry Prohibition Act and this section.

This section gives wide discretion to the courts in the matters

of interpretation of the words occurring in the laws and also in
matters of awarding punishment. This provision is not ultra
vires. It does not confer arbitrary powers on courts.

In the leading case of ‘Wazir Chand vs. State of Haryana ’,

involving the death by burning of a newly married woman, the
circumstances did not establish either murder or an abetted
suicide and thus in-laws escaped the jaws of section 300 and
306, but they were caught in the web of this newly enacted
section for prevention of harassment for dowry. Not to speak of
the things they are persistently demanding from the girl’s side,
the fact that a large number of articles were taken by her
father after her death from her matrimonial abode, showed
that there was pressure being exerted on-in laws and
continued to be exerted till death for more money and articles.

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The other face of the coin:

Though section 498-A aims at protection and safety of woman

from her husband’s and his relatives cruelty and harassment,
this shield is used as a weapon by many females for their own
purposes. Many women’s are using this section against their
husband’s and his relatives without any attempt or cruelty
practiced. Indian law has always laid emphasis on protection of
the innocent. It has always been emphasised that ten guilty
person’s can be acquainted rather punishing a single innocent
person. But this section is being misused and innocents are
punished.

Abuse of section 498-A has always been a matter of discussion

in Rajya Sabha. It was observed there that, Section 498-A has
become an instrument of oppression in the hands of certain
people who are seeking to get minor children , aged in-laws are
being arrested on absolutely whimsical allegations. The issue is
not only of compounding it, the question is how you ensure a
just investigation of such complaints. Low police officers are
investigating it in a manner that is ruining the sanctity of
families; minor children and girls are hauled up. This is a
scathing indictment of how this law which was intended to sub
serve a noble purpose has in fact, been prostituted.

It was also stated that, in many cases, there are complaints

where the provisions of section 498-A are misused or abused
or excessively used. And for that, the investigating agency is
the only agency which can remedy this. From time to time,
these instructions are issued even from the Government of
India, and the State Governments are already cognisant of this
fact. But, for the investigating officer, the problem arises when
a case is registered and the persons have been mentioned in
the FIR; it becomes difficult for him. Till such time, he really
satisfies himself. During that period, some harassment is
certainly made; it is expected from the investigating officers, it
is expected from the police officers. They are sensitised on this
matter by the State Government, and also by the Central
Government, that they should see to it that they are not
harassed. Observing that anti-dowry laws were being
increasingly misused by wives to harass their husbands and in-

72
laws, the Delhi High Court has urged the Government to review
their provisions. Judge J.D.Kapoor urged the review while
rejecting a plea by a woman petitioner, Savitri Devi, seeking
the arrest of her brothers in-law and sister in-law for allegedly
harassing her by demanding more dowries. Kapoor said in his
order passed: “I feel constrained to comment upon the misuse
of the provisions (of law) to such an extent that it is hitting at
the foundation of marriage itself and has proved to be not so
good for the health of the society at large". The judge
observed: “There is a growing tendency to come out with
inflated and exaggerated allegations, roping in each and every
relation of the husband. If one of them happens to be of higher
status or of vulnerable standing, he or she becomes an easy
prey for better bargaining and blackmailing.

He added:” The ground realities have persuaded this court to

recommend to the authorities and law makers to have a review
of the situation and legal provisions.” Judge Kapoor, in his
order said the provisions of the anti-dowry laws “were made
with good intentions but the implementation has left a very bad
taste and has been counter-productive.”

According to the anti-dowry laws, a non-bailable warrant is

issued against the accused if a woman alleges she is being
harassed by her husband and/or his relatives for dowry. People
found guilty can be sent to jail for up to three years and/or
fined. Savitri Devi had filed a case urging her brothers-in-law
and sister-in-law be arrested for demanding dowry. City Court
rejected the plea, but ordered the framing of charges against
Savitri Devi’s husband and father-in-law. She then challenged
the lower court’s order in the High Court.

Judge Kapoor agreed with the lower court’s decision and found
no evidence of harassment against Savitri Devi’s brothers-in-
law and sister-in-law. “The only allegation against the
respondents is that they did not like the customary gifts the
petitioner had brought”, said Kapoor. This, according to him,
did not amount to cruelty or harassment. “The petition is highly
misconceived and is being used as a tool to hold the entire
household to ransom and jeopardy,” he said. He also pulled up
the investigating agencies not doing their work properly.

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Misuse of section 498-A has also been called as legal terrorism
by the Supreme Court of India. Many instances have come to
light where the complaints are not bonafide and have been
filed with oblique motive. In such cases acquittal of the accused
does not in all cases wipe out the ignomy suffered during and
prior to trial. A new legal terrorism can be unleashed by the
misuse of the provision. The provision is intended to be used as
a shield and not as an assassin’s weapon. If cry of “wolf” is
made too often as a prank assistance and protection may not
be available when the actual “wolf” appears. There is no
question of investigating agency and Courts casually dealing
with the allegations. They cannot follow any strait jacket
formula in the matters relating to dowry tortures, deaths and
cruelty. It cannot be lost sight of that ultimate objective of
every legal system is to arrive at truth, punish the guilty and
protect the innocent. It is to be noted that the role of the
investigating agencies and the courts is that of watch dog and
not of a bloodhound. It should be their effort to see that an
innocent person is not made to suffer on account of unfolded,
baseless and malicious allegations.

Q. 8. What is defamation?
 According to section 499 of IPC, whoever, by words
either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases
hereinafter expected, to defame that person.
 Section 499 also cites exceptions. These include
“imputation of truth” which is required for the “public good”
and thus has to be published, on the public conduct of
government officials, the conduct of any person touching any
public question and merits of the public performance.
 Section 500, which is on punishment for defamation,
reads: “Whoever defames another shall be punished with
simple imprisonment for a term which may extend to two
years, or with fine, or with both.”
 In India, defamation is both civil and criminal
offence. The remedy for a civil defamation is covered under

74
 the Law of Torts. In a civil defamation case, a person who is
defamed can move either High Court or subordinate courts
and seek damages in the form of monetary compensation
from the accused. Also, under sections 499 and 500 of the
IPC, a person guilty of criminal defamation can be sent to jail
for two years.
What is the difference between civil wrong and criminal
offence?
 Criminal offences and civil offences are generally different
in terms of their punishment. Criminal cases will have jail
time as a potential punishment, whereas civil cases generally
only result in monetary damages or orders to do or not do
something. But a criminal case may involve both jail time
and monetary punishments in the form of fines.
 The standard of proof is also different in a criminal case
than a civil case. Crimes must generally be proved “beyond a
reasonable doubt”, whereas civil cases are proved by lower
standards of proof such as “the preponderance of the
evidence” (which essentially means that it was more likely
than not that something occurred in a certain way).
Why are Section 499 and 500 of IPC challenged?
 Section 499 of the Indian Penal Code, 1860 (IPC) states
that any person whose reputation has been damaged (or
was intended to be damaged) by the material in question has
the rights to sue for defamation.
 However, these are challenged on the ground of fact that
they are violative of the right to freedom of speech and
expression provided under Article 19 of the Indian
Constitution.
Arguments for why IPC 499/500 should be declared
unconstitutional
 Sections 499-500 IPC do not constitute a “reasonable
restriction” on speech, as commented by many because, to
begin with, even truth is not a defence. Even if a person
has spoken the truth, he can be prosecuted for defamation.
Under the first exception to section 499, the truth will only
be a defence if the statement was made for the public
good, which is a question of fact to be assessed by the
court. This is an arbitrary and overbroad rule that deters

75
 people from making statements regarding politicians or
political events even which they know to be true because
they run the risk of a court not finding the statement to be
for the public good.
 Second, a person can be prosecuted under section 499
even if he or she has not made any verbal or written
statement at all. A magistrate may issue criminal process on
the mere allegation that the defendant conspired with the
person who actually made the allegedly defamatory written
statements.
 Third, a person can be prosecuted even for a statement
about the dead. While Article 19(2) permits restricting
speech in the interests of protecting the private interest in a
reputation, restricting speech to protect the reputation of the
deceased is excessive and over-broad.
 Fourth, even an ironical statement can amount to
defamation. Also, since section 499 applies to “any
imputation concerning any person,” a criminal suit can be
filed even for political speech – which is the most protected
speech in a democracy.
 It is a tool that can be easily invoked and that enables
allegedly defamed persons to drag anyone to courts across
the country.
 Finally, it is unclear why defamation has to be a criminal
offence at all and why civil remedies are not sufficient.
Arguments for why IPC 499/500 is not unconstitutional
 The reputation of one cannot be allowed to be crucified at
the altar of the other’s right of free speech. So there is no
point in declaring that the present law is unconstitutional.
There is a need to strike balance between article 19 and
article 21.
 Unlike other inflexible provisions of the IPC, Sections
499/500 have four explanations and 10 exceptions which do
both: they add content and context to the offence as also
chisel away at it substantially. They constitute significant
counter factual to exclude frivolous complaints.
 Section 199(1) the CrPC safeguards the freedom of
speech by placing the burden on the complainant to pursue
the criminal complaint without involving state machinery.

76
 This itself filters out many frivolous complainants who are
not willing to bear the significant burdens – logistical,
physical and monetary – of pursuing the complaint.
 A mere misuse or abuse of law, actual or potential, can
never be a reason to render a provision unconstitutional.
Why should it remain a criminal offence and not made a
civil offence?
 In India, citizens are unlikely to have enough liquidity to
pay damages for civil defamation.
 It is argued that online defamation in the Internet age can
be effectively countered only by making it a criminal offence,
and the law is part of the state’s “compelling interest” to
protect the dignity and reputation of citizens.
What is the view of the Supreme Court on defamation?
 The Supreme Court has ruled that the criminal provisions
of defamation are constitutionally valid and are not in conflict
with the right to free speech.
 The court stated that notwithstanding the expansive and
sweeping ambit of freedom of speech, as all rights, the right
to freedom of speech and expression is “absolutely
sacrosanct (sacred)” but “is not absolute.” It is subject
to the imposition of reasonable restrictions. It also said that
the reputation of a person is an integral part of the
right to life granted under Article 21 of the Indian
Constitution and it cannot be allowed to be crucified at the
altar of the other’s right of free speech.
What can be the way ahead?
Criminal defamation should not be allowed to be an instrument
in the hands of the state, especially when the Code of
Criminal Procedure gives public servants an unfair advantage
by allowing the state’s prosecutors to stand in for them when
they claim to have been defamed by the media or political
opponents.
In recognition of the fact that many countries do have criminal
defamation laws which are unlikely to be repealed in the very
near future, following interim measures can be taken:

1. No-one should be convicted for criminal defamation unless

the party claiming to be defamed proves, beyond a

77
 reasonable doubt, the presence of all the elements of the
offence, as set out below;
2. The offence of criminal defamation shall not be made out
unless it has been proven that the impugned statements are
false, that they were made with actual knowledge of falsity,
or recklessness as to whether or not they were false, and
that they were made with a specific intent to cause harm to
the party claiming to be defamed;
3. Public authorities, including police and public prosecutors,
should take no part in the initiation or prosecution of criminal
defamation cases, regardless of the status of the party
claiming to have been defamed, even if he or she is a senior
public official;
4. Prison sentences, suspended prison sentences, suspension
of the right to express oneself through any particular form of
media, or to practise journalism or any other profession,
excessive fines and other harsh criminal penalties should
never be available as a sanction for breach of defamation
laws, no matter how egregious or blatant the defamatory
statement.

Q.9. OFFENCES RELATING TO ELECTIONS

171A. ‘‘Candidate", ‘‘Electoral right" defined -For the

purpose of this chapter-

(a) "candidate" means a person who has been nominated as a

candidate at any election;

(b) "electoral right" means the right of a person to stand or not

to stand as, or to withdraw from being a candidate or to vote
or refrain from voting at an election.

171B, Bribery-(1) Whoever-

(i) gives a gratification to any person with the object of

inducing him or any other person to exercise any electoral right
or of rewarding any person for having exercise any such
right;or

(ii) accepts either for himself or for any other person any
gratification as a reward for exercising any such right or for
78
inducing or attempting to induce any other person to exercise
any such right, commits the offence of bribery:

Provided that a declaration of public policy or a promise of

public action shall not be an offence under this section.

(2) A person who offers or agrees to give ,or offers or attempts

to procure, a gratification shall be deemed to give gratification.

(3) A person who obtains or agrees to accepts or attempts to

obtain a gratification shall be deemed to accept a gratification,
and a person who accepts a gratification as a motive for doing
what he does not intend to do, or as reward for doing what he
has not done , shall be deemed to have accepted the
gratification as a reward.

171C. Undue influence at elections.-(1) Whoever

voluntarily interferes or attempts to interfere with the free
exercise of any electoral right commits the offence of under
influence at an election.

(2) Without prejudice to the generally of the provisions of sub-

sections (1) whoever-

(a) threatens any candidate or voter, or any person in whom a

candidate or voter is interested, with injury of any kind, or

(b) induces or attempts to induce a candidate or voter to

believe that he or any person in whom he is interested will
become or will be rendered an object or Divine displeasure or
of spiritual pleasure, shall be deemed to interfere with the free
exercise of the electoral right of such candidate or voter, within
the meaning of sub-section (1)

(3) A declaration of public policy or a promise of public

action,or the mere exercise of a legal right without intent to
interfere with an electoral right, shall not be deemed to be
interference within the meaning of this section.

CASE LAW : Orissa High Court Sri Raja Raj Deb vs Sri
Gangadhar Mohapatra And Ors.

79
 on 3 August, 1962 Equivalent citations: AIR 1964 Ori 1, 1964
CriLJ 57 Bench: R Narasimham, R Das

BACKGROUND • In this case the petitioner Gangadhar

Mohapatra filed an election petition in the Election Tribunal,
Puri against the appellant Sri Raja Raj Dev on the ground of
corrupt practice to win the election by him and his agents. •
Election Tribunal, Puri then declaring void the election of the
appellant to the Orissa Legislative Assembly on the ground that
he committed corrupt practices and further disqualifying him
from standing as a candidate for election either to the
Parliament or the State Legislative Assembly for a period of six
years.

FACTS • During the mid-term elections to the Orissa

Legislative Assembly held on the 6th June, 1961, the appellant
and three other candidates namely Sri Gangadhar Mohapatra
(respondent No. 1 in this appeal and petitioner before the
Tribunal) hereinafter referred to as the petitioner, Sri
Biswanath Parida (respondent No. 2 in this appeal) and Sri
Balakrushna Das (respondent No. 3 in this appeal) stood as
candidates for Satyabadi constituency in the district of Puri. •
The results of the poll were declared by the Returning Officer
on the 10th June 1961.

In the counting the results of the poll were as declared as

follows : Gangadhar Mohapatra: 9977 Sri Raja Raj Dev: 10145
Biswanath Parida: 4778 Balkrushna Das: 3001 No. of invalid
votes: 1136 • The appellant was accordingly declared duly
elected. • Sri Gangadhar Mohapatra (petitioner) thereupon filed
an election petition challenging the election of the appellant
mainly on the ground of corrupt practice committed by him and
his agents. He further alleged that several voters' of Bastapada
who would have voted for him were prevented from exercising
their grant on account of an error of Judgment on the part of
the Governing Officer of two polling stations, namely
Nuasansarpur and Jeepur. • He further alleged that while
counting votes the Returning Officer wrongly declared invalid
several votes which were cast for him and also wrongly
counted in favour of the appellant several votes which should
have been declared invalid.

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The petitioner alleged that the appellant taking advantage of
his position as the younger brother of the Raja of Puri has
systematically carried on election propaganda in his
constituency of Satyabadi saying that he was himself Chalanti
Bishnu that any vote cast for him would be a vote for Lord
Jagannath and if the voters did not vote for him they would be
subject to divine displeasure and spiritual censure. • The
petitioner also alleged that the appellant and his polling agents
made systematic appeals to the villagers to cast their votes for
him on the ground of his caste (Khandayat) and also used the
religious symbols of Nila Ghakra of Lord Jagannath in support
of the appellant's candidature. Some of the cards in which Nila
Chakra of Lord Jagannath has been stamped on the reverse
were also produced before the Election.

On behalf of the appellant however it was contended that

these allegations were maliciously false and that the Raja of
Puri kept himself completely aloof from the election campaign
and that merely because the appellant happened to be the
younger brother of the Raja of Puri the petitioner came up with
these wild allegations with a view to get his election set aside.

OBSERVATION • It was observed by this case that though

under section 171-C and 171-F the appellant must be held
liable but in this case he will not be liable under the
circumstances.

JUDGMENT • The appeal is allowed with costs and the

Judgment of the Election Tribunal declaring the appellant's
election to be void on account of the commission of corrupt
practices and disqualifying him from standing for election for a
period of six years, is set aside. The petitioner's election
petition is dismissed with costs.

171D. Personation at elections- whoever at an election

applies for a voting paper or votes in the name of any other
person, whether living or dead, or in a fictitious name, or who
having voted once at such election applies at the same election
for a voting paper in his own name,and whoever
abets,procures or attempts to procure the voting by any person

81
in any such way, commits the offence of personation at an
election.

171E Punishment for bribery.- Whoever commits the

offence of bribery shall be punished with imprisonment of
either description for a term which may extend to one year , or
with fine,or with both;

Provided that bribery by treating shall be punished with fine

only.

Explanation-‘Treating’ means that form of bribery where the

gratification consists in food,drink, entertainment, or provision.

171F. Punishment for undue influence or personation at

an election.-Whoever commits the offence of undue influence
or personation at an election shall be punished with
imprisonment of either description for a term which may
extend to one year,or with fine, or with both.

171G.False statement in connection with an election.-

Whoever with intent to affect the result of an election makes or
publishes any statement purporting to be a statement of fact
which is false and which he either knows or believes to be false
or does not believe to be true, in relation to the personal
character or conduct of any candidate shall be punished with
fine.

171H. Illegal payments, in connection with an election-

Whoever without the general or special authority in writing of a
candidate incurs or authorises expenses on account of the
holding of any public meetings,or upon any advertisement,
circular or publication, or in any other way whatsoever for the
purpose of promoting or procuring the election of such
candidate, shall be punished with fine which may extend to five
hundred rupees;

Provide that if any person having incurred any such expenses

not exceeding the amount of ten rupees without authority
obtains within ten days from the date on which such expenses
were incurred the approval in writing of the candidate, he shall

82
be deemed to have incurred such expenses with the authority
of the candidate.

Q.10. CULPABLE HOMICIDE AND MURDER

All Murders are culpable Homicides but not all culpable

homicides are murder.

Culpable Homicide under section 299 -

Whoever causes death by doing an act with the intention of

causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that he
is likely by such act to cause death, commits the offence of
culpable homicide.

Ingredients -

1. Intention of causing death

2. Intention of causing such bodily injury as is likely to cause

death

3. Knowledge that the act done is likely to cause death.

Section 300

Culpable homicide is Murder - if the act by which the death is

caused is done with the intention of causing death, or-

2ndly.-If it is done with the intention of causing such bodily

injury as the offender knows to be likely to cause the death of
the person to whom the harm is caused. or-

3rdly.-If it is done with the intention of causing bodily injury to

any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or-

4thly.-If the person committing the act knows that it is so

imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and

83
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid."

Ingredients -

1. Intention of causing death

2. Intention of causing such bodily injury which is likely to

cause death of the person, and this is known to the offender

3. Intention to cause such bodily injury as is sufficient in

ordinary course of nature to cause death of a person

4 Knowledge that the act done is sufficiently dangerous that in

all probabilities it must cause death, or cause such bodily injury
which is likely to cause death, and the act is done without any
excuse to cause death or such bodily injury.

Let's look at the similarities.

In both the cases there is Intention to cause death . In both

the cases there is killing of a human being.

Now, can you spot the difference?

First difference is, Murder is a SPECIAL KIND OF Culpable

Homicide. So, CH is the genus and Murder is the specie.

All Murders are CHs but not CHs are murders. They are
referred to as CH not amounting to Murder. Also called
'Manslaughter' in some nations.

So, what's the difference, and more importantly WHY the

difference?

The difference lies in the degree of CERTAINTY of death.

And the culpability of a person depends on that. You would

appreciate the brilliance of law and the philosophy when you
fully understand the difference.

Let's take 2 examples-

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1) Let's say, I know that you walk on a particular road
everyday to go to your workplace. Now, there is a deep pit on
the road that is covered by a wooden plank. I intend to kill you.
One day, I go and take out the flank thinking that you would
probably not notice, fall and die.

Now, it so happens that you do not notice, fall and die. This is
Culpable Homicide not amounting to murder.

Intention - Yes.

Death - Yes.

Degree to certainty of death - Not so much. (There is always

the chance that you may notice the pit. Or even after falling,
you may not die).

2) As opposed to the above, I walk straight to your house with

a gun and shoot 10 bullets right in your brain.

This is murder.

Intention - Yes.

Death - Yes.

Degree of certainty of death - Most certain.

THERE LIES THE DIFFERENCE.

The latter deserves to be punished more than the former, even

if the end result is killing of another human being.

And that is why, law is amazing! Because it understands the

difference between the two.

The punishment for CH is life imprisonment and for Murder, it

is death sentence.

Homicides can be criminal, excusable, or justifiable.

85
Homicide is a term generally used to describe when one person
kills another person, be it intentional, unintentional, pre-
meditated or not-pre-meditated.

Murder is a criminal homicide, where the perpetrator intended

to kill the other person, sometimes with
premeditation/malicious intent. And consequences will be
severe.

Examples...

You're traveling alone and someone stops you, breaks into your
car, attempts to rob and kill you, but you killed him in self
defense... now, that is "homicide" but not "murder." And it's
usually "justifiable homicide."

You hate your boss because he didn't promote you, you

planned to kill him by shooting when he's going home from
office, and actually shoot and kill him as per plan - that is
indeed "homicide" - but you will most likely be found to have
committed a murder, in other words criminal homicide as it
was premeditated.

EXCEPTIONS OR WHEN CULPABLE HOMICIDE IS NOT

MURDER

Five exceptions have been provided u/s 300 wherein causing

death does not amount to murder.

If any of these exceptions is held to be applicable in a case, the

conviction of the accused in that case would be for culpable
homicide not amounting to murder. In this sense, therefore,
these five exceptions are partial defences to murder

Exception 1 to 5 of S. 300 of IPC defines conditions when

culpable Homicide is not amounting to murder:

I. Provocation.

Grave and sudden provocation: Culpable homicide is not

murder if the offended, who deprived of the self-control by
grave and sudden provocation, causes the death of a person,

86
who gave the provocation or causes the death of any other
person by mistake or accident. Thus for the FIRST EXCEPTION
following things are necessary:-

a) There must be provocation.

b) Provocation must be grave and sudden.

c) By reason of such provocation the offender have been

deprived of the power of self-control.

d) The death must be of that person who gave the provocation

or any other person by mistake or accident.

II. Right of private defense.

When the right of private defense of the body extends to

causing death

The law authorizes a man who is under a reasonable

apprehension that his life is in danger or his body in risk of
grievous hurt to inflict death upon his assailant either when the
assault is attempted or directly threatened, but it must be
proportionate to or commensurate with the quality and
character of the act it is intended to meet and what is done in
excess is not protected.

The right of private defence of the body extends to the causing

of death or any other harm to the assailant under the following
circumstances:

1. An assault causing reasonable apprehension of death.

2. An assault causing reasonable apprehension of grievous

hurt.

3. An assault with the intention of committing rape.

4. An assault with intention of kidnapping or abducting.

5. An assault with the intention of gratifying unnatural lust.

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6. An assault with the intention of wrongfully confining a
person under circumstances which may cause him to
apprehend that he will be unable to have recourse to the public
authorities for his release.

Any harm short of death can be inflicted in exercising the right

of private defence in any case, which do not fall under the
above circumstances

The right of private defence commences as soon as a

reasonable apprehension of danger to the body arises from an
attempt or threat to commit the offence, though the offence
may not have been committed; and it continues as long as
such apprehension of danger to the body continues

Punishment

The Court will decide the punishment after considering whether

there was a reasonable apprehension of death or not.

III. Public servant exceeding his power.

There 4 elements to this defence.

Firstly, the accused is a public servant to advance public

justice.

Secondly, he exceeds the power given by law and has caused

death.

Thirdly, he acted in good faith, believing that it is lawful and

necessary.

Fourthly, there is no malice or will.

It is to be noted that Section 15 of the Criminal Procedure Code

provides that in the mode of arrest, police are allowed to use
reasonable force to apprehend an offender and if such force
may extend to cause death, is the offence is punishable with
death.

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In Dukhi Singh AIR, the accused a constable chased a man but
when he fired a shot, it hit a fireman and killed him. The court
decided that he was covered within the exception and was
charged with culpable homicide.

This decision is however in contrast to the decision decided in

Sabha Naik. In this case, the chief constable ordered his
subordinates to open fire against a mob on reasons of public
security. It was held that the accused should not act in such
ways as it is not done in good faith and all of them were guilty
of murder.

IV. Sudden fight.

There are 3 elements to this defence.

Firstly, there must be a sudden fight. The definition of sudden

fight was provided in the case of Bhagwan Munjaji Pawade as
the court stated that a fight postulates a bilateral transaction in
which blows are exchange. However, in the case of PP v Awang
Riduan bin Awang Bol, the deceased claimed that the accused
took money. Only an hour later, the accused came back with a
knife and an axe. It was held that it was not a sudden fight as
there was element of design or planning.

Secondly, there must be absence of premeditation.

Premeditation is not defined in the penal code but it is stated

that premeditation involves a pre-planning which is furnished
by former grudges or previous threat. Surain Singh Vs The
State of Punjab on 10 April 2017 in the Supreme Court

Lastly, it was done without undue advantage. If weapon is out

of all proportion, it must be considered whether undue
advantage had been taken or the accused had acted in an
unusual manner.

As in PP v Seow Khoon Kwee, a fight started when the

deceased punch the accused’s left eye. The accused then used
a piece of glass while the deceased fought. The glass was used
to inflict the fatal injury. Then, the court held, in using such

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weapon, there were no undue advantage nor acting in an
unusual manner. The exception was applicable.

By contrast, in Mohamed Kunjo, the accused hit the deceased

with a pipe several times. The court rejected the appeal
because the accused had gone off to take the weapon.

V. Consent.

There are 2 elements to this defence.

Firstly, the consent must be a voluntary and genuine consent

and not based on a mis-conception of fact. In the case of
Queen Vs Poonai Fattemah, 3 B. L. R. A. Cr. 26=12 W. R. Cr. 7
(1869), a snake charmer told his audience that if they were
bitten, he had the necessary antidote. The deceased,
thereupon, allowed himself to be bitten and subsequently died.
It was held that Exception 5 did not apply because the victim’s
consent was based on misconception of fact.

Secondly, the consent also must be unequivocal and not

merely an expression of willingness to die as one possible
option.

Q.11 RIGHT TO PRIVATE DEFENCE

The state has the duty to protect its citizens and their
property from harm. However, circumstances may arise when
the aid of state machinery is not available and there is
imminent danger to a person or his property. In such
situations, a person is allowed to use force to ward-off the
immediate threat to his or someone else’s person  or property.
This is the right of private defence. The people are endowed
with this right so that they can defend themselves and their
property and not hesitate due to fear of prosecution. The right,
in some circumstances even extends to causing death of the
person who poses such a threat. But such a right is subject to
some restrictions and not available in all circumstances. It is
only allowed when the danger to life or property is immediate
and the accused is not the aggressor. The right of
private defence is not available against public servants acting
in exercise of their lawful powers. A person is allowed to use

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only reasonable force; force that is proportionate to the
impending danger.” 
Introduction
Sections 96 to 106 of the penal code state the law relating to
the right of private defence of person and property. The
provisions contained in these sections give authority to a man
to use necessary force against an assailant or wrong-doer for
the purpose of protecting one’s own body and property as also
another’s body and property when immediate aid from the
state machinery is not readily available; and in so doing he is
not answerable in law for his deeds.
Self-help is the first rule of criminal law. The right of private
defence is absolutely necessary for the protection of one’s life,
liberty and property. It is a right inherent in a man. But the
kind and amount of force is minutely regulated by law. The use
of force to protect one’s property and person is called the right
of private defence.
150 years ago, during colonialism, an enthusiastic Macaulay
proposed a right of private defence in his draft code with the
ambitious project of encouraging a ‘manly spirit’ among the
‘natives’. The ideal Indian would stand his ground in the face of
danger and not hesitate to defend his own body or property or
that of another. He would respond with defensive force to
prevent certain crimes, even to the extent of causing death. As
a general idea, the right of private defence permits individuals
to use defensive force which otherwise be illegal, to fend off
attacks threatening certain important interests. Like the
defence of necessity, the right of private defence authorizes
individuals to take the law into their own hand.

Private Defence In The Indian Legal System

IPC Section 96 to 106 of the penal code states the law relating
to the right of private defence of person and property.
The provisions contained in these sections give authority to a
man to use necessary force against an assailant or wrong-doer
for the purpose of protecting one’s own body and property as
also another’s body and property when immediate aid from the
state machinery is not readily available and in so doing he is
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not answerable in law for his deeds. Section 97 says that the
right of private defence is of 2 types:
(i) Right of private defence of body,
(ii) Right of private defence of property.
Body may be one’s own body or the body of another person
and likewise property may be movable or immovable and may
be of oneself or of any other person. Self-help is the first rule
of criminal law. The right of private defence is absolutely
necessary for the protection of one’s life, liberty and property.
It is a right inherent in a man. But the kind and amount of
force is minutely regulated by law. The use of force to protect
one’s property and person is called the right of private defence.
Nature of The Right
It is the first duty of man to help himself. The right of self-
defence must be fostered in the Citizens of every free country.
The right is recognised in every system of law and its extent
varies in the inverse ratio to the capacity of the state to protect
life and property of the subject( citizens). It is the primary duty
of the state to protect the life and property of the individuals,
but no state, no matter how large its resources, can afford to
depute a policeman to dog the steps of every rouge in the
country. Consequently this right has been given by the state to
every citizen of the country to take law into his own hand for
their safety. One thing should be clear that, there is no right of
private defence when there is time to have recourse to the
protection of police authorities. The right is not dependent on
the actual criminality of the person resisted. It depends solely
on the wrongful or apparently wrongful character of the act
attempted, if the apprehension is real and reasonable, it makes
no difference that it is mistaken. An act done in exercise of this
right is not an offence and does not, therefore, give rise to any
right of private defence in return.

Section 96. Things done in private defence:

Nothing is an offence, which is done in the exercise of
the right of private defence.

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Right of private defence cannot be said to be an offence in
return. The right of self-defence under Section 96 is not
absolute but is clearly qualified by Section 99 which says that
the right in no case extends to the inflicting of more harm than
it is necessary for the purpose of defence. It is well settled that
in a free fight, no right of private defence is available to either
party and each individual is responsible for his own acts. While
it is true that law does not expect from the person, whose life
is placed in danger, to weigh, with nice precision, the extent
and the degrees of the force which he employs in his defence,
it also does not countenance that the person claiming such a
right should resort to force which is out of all proportion to the
injuries received or threatened and far in excess of the
requirement of the case. The onus of proving the right of
private defence is upon the person who wants to plead it. But
an accused may be acquitted on the plea of the right of private
defence even though he has not specifically pleaded it.

Courts are empowered to exempt in such cases. It must be

borne in mind that the burden of proving an exception is on the
accused. It is not the law that failure to setup such a defence
would foreclose this right to rely on the exception once and for
all. It is axiomatic that burden on the accused to prove any fact
can be discharged either through defence evidence or even
through prosecution evidence by showing a preponderance of
probability. It is true that no case of right of private defence of
person has been pleaded by the accused not put forth in the
cross-examination to the eye-witnesses but it is well settled
that if there is a reasonable probability of the accused having
acted in exercise of right of private defence, the benefit of such
a plea can still be given to them.
The right of private defence, as the name suggests, is an act of
defence and not of an offence. Consequently, it cannot be
allowed to be used as a shield to justify an aggression. This
requires a very careful weighing of the facts and circumstances
of each case to decide as to whether the accused had in fact
acted under this right. Assumptions without any reasonable
basis on the part of the accused about the possibility of an
attack do not entitle him to exercise this right. It was held in a

93
case that the distance between the aggressor and the target
may have a bearing on the question whether the gesture
amounted to assault. No precise yardstick can be provided to
fix such a distance, since it depends upon the situation, the
weapon used, the background and the degree of the thirst to
attack etc.

The right of private defence will completely absolve a persons

from all guilt even when he causes the death of another person
in the following situations, i.e
• If the deceased was the actual assailant, and
• If the offence committed by the deceased which occasioned
the cause of the exercise of the right of private defence of body
and property falls within anyone of the six or four categories
enumerated in Sections 100 and 103 of the penal code.
Kishan v State of Madhya Pradesh and State of Uttar
Pradesh v Pussu[(1983) Cr LJ 1356 (SC
An aggressor cannot claim right of private defence– Accused
being aggressor– Liable for murder– Appeal dismissed–
Supreme Court– 1974

A person who is an aggressor cannot rely on the right of self-

defence if, in the course of the transaction, he deliberately kills
another whom he had attacked earlier.

The appellant along with other co-accused went to the house of

the deceased with the intention of causing physical harm to
him. They pulled the deceased out of his house and subjected
him to punching and kicking. The deceased managed to escape
from their grip, and caught hold a khutai and struck three
blows on the head of the accused. The appellant snatched the
khutai from the hands of the deceased and gave two or three
blows on his head causing profuse bleeding inside his brain,
which proved fatal and the man died.
It was held that the accused were the aggressors and
hence they could not claim the right of private defence. In fact,
the deceased was acting in the exercise of right of private
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defence of body. The accused was held liable under s 300, cl
(3) of the IPC for murder. Appeal Dismissed.
Kamparsare vs Putappa:
Where a boy in a street was raising a cloud of dust and a
passer-by therefore chased the boy and beat him, it was held
that the passer-by committed no offence. His act was one in
exercise of the right of private defence.
Section 97.Right of private defence of the body and of
Property:-
Every person has a right, subject to the restrictions
contained in Section 99, to defend-
First-His own body, and the body of any other person, against
any offence affecting the human body;
Secondly-The property, whether movable or immovable, of
himself or of any other person, against any act which is an
offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft,
robbery, mischief for criminal trespass.
This Section limits exercise of the right of private defence to
the extent of absolute necessity. It must not be more than
necessary for defending aggression. There must be reasonable
apprehension of danger that comes from the aggressor in the
form of aggression. This Section divides the right of private
defence into two parts, i.e. the first part deals with the right of
private defence of person, and the second part with the right of
private defence of property. To invoke the plea of right of
private defence there must be an offence committed or
attempted to be committed against the person himself
exercising such a right, or any other person. The question of
the accrual of the right of the private defence, however, does
not depend upon an injury being caused to the man in
question. The right could be exercised if a reasonable
apprehension of causing grievous injury can be established. If
the threat to person or property of the person is real and
immediate, he is not required to weigh in a golden scale the
kind of instrument and the force which he exerts on the spur of
the moment. The right of private defence extends not only to
the defence of one’s own body and property, as under the

95
English law, but also extends to defending the body and
property of any other person.
Thus under section 97 even a stranger can defend the person
or property of another person and vice versa, whereas under
the English law there must be some kind of relationship
existing such as father and son, husband and wife, etc., before
this right may be successfully exercised. A true owner has
every right to dispossess or throw out a trespasser, while the
trespasser is in the act or process of trespassing but has not
accomplished his mission; but this right is not available to the
true owner if the trespasser has been successful in
accomplishing possession and his success is known by the true
owner. In such circumstances the law requires that the true
owner should dispossess the trespasser by taking recourse to
the remedies available under the law. The onus of establishing
plea of right of private defence is on the accused though he is
entitled to show that this right is established or can be
sustained on the prosecution evidence itself. The right of
private defence is purely preventive and not punitive or
retributive. Once it is held that the party of the accused were
the aggressors, then merely because a gun was used after
some of the party persons had received several injuries at the
hands of those who were protecting their paddy crop and
resisting the aggression of the party of the accused, there can
be no ground for taking the case out of Section 302, I.P.C., if
otherwise the injuries caused bring the case within the
definition of murder.

Chotelal vs State:
B was constructing a structure on a land subject to dispute
between A and B. A was trying to demolish the same. B
therefore assaulted A with a lathi. It was held that B had
therefore a right to defend his property.

IPC Section 98. Right of private defence against the act

of a person of unsound mind, etc:
When an act, which would otherwise be a certain offence, is
not that offence, by reason of the youth, the want of maturity

96
of understanding, the unsoundness of mind or the intoxication
of the person doing that act, or by reason of any misconception
on the part of that person, every person has the same right of
private defence against that act which he would have if the act
were that offence.
Illustrations:-
• Z, under the influence of madness, attempts to kill A; Z is
guilty of no offence. But A has the same right of private
defence which he would have if Z were sane.
• A enters by night a house which he is legally entitled to enter
Z, in good faith, taking A for a house breaker, attacks A. Here
Z, by attacking A under this misconception, commits no
offence. But A has the same right of private defence against Z,
which he would have if Z were not acting under that
misconception.
This Section lay down that for the purpose of exercising the
right of private defence, physical or mental capacity of the
person against whom it is exercised is no bar. In other words,
the right of private defence of body exists against all attackers,
whether with or without mens rea. The above mentioned
illustration are pointing a fact that even if an attacker is
protected by some exception of law, that does not diminish the
danger and risk created from his acts. That is why the right of
private defence in such cases also can be exercised, or else it
would have been futile and meaningless.

IPC Section 99. Act against which there is no right of

private defence:
There is no right of private defence against an act which does
not reasonable cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by a public servant
acting in good faith under colour of his office, though that act,
may not be strictly justifiable by law.
There is no right of private defence against an act which does
not reasonable cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by the direction of a
public servant acting in good faith under colour of his office,
though that direction may not be strictly justifiable by law.
97
There is no right of private defence in cases in which there is
time to have recourse to the protection of the public
authorities.
Extent to which the right may be exercised:--The right to
Private defence in no case extends to the inflicting of more
harm that it is necessary to inflict for the purpose of defence.
Explanation 1: - A person is not deprived of the right of
private defence against an act done, or attempted to be done,
by a public servant, as such, unless he knows or has reason to
believe, that the person doing the act is such public servant.
Explanation 2: - A person is not deprived of the right of
private defence against an act done, or attempted to be done,
by the direction of a public servant, unless he knows, or has
reason to believe, that the person doing the act is acting by
such direction, or unless such person states the authority under
which he acts, or if he has authority in writing, unless he
produces such, demanded.

Section 99 lays down that the conditions and limits within

which the right of private defence can be exercised. The section
gives a defensive right to a man and not an offensive right.
That is to say, it does not arm a man with fire and ammunition,
but encourage him to help himself and others, if there is a
reasonable apprehension of danger to life and property. The
first two clauses provide that the right of private defence
cannot be invoked against a public servant or a person acting
in good faith in the exercise of his legal duty provided that the
act is not illegal. Similarly , clause three restricts the right of
private defence, if there is time to seek help of public
authorities. And the right must be exercised in proportion to
harm to be inflicted. In other words , there is no right of
private defence :
• Against the acts of a public servant; and
• Against the acts of those acting under their authority or
direction;
• Where there is sufficient time for recourse to public
authorities; and

98
• The quantam of harm that may be caused shall in no case be
in excess of harm that may be necessary for the purpose of
defence.
The protection to public servants is not absolute. It is subject
to restrictions. The acts in either of these clauses must not be
of serious consequences resulting in apprehension of causing
death or of grievous hurt which would deprive one of his right
of private defence.
To avail the benefit of those clauses ( i ) the act done or
attempted to be done by a public servant must be done in good
faith; ( ii ) the act must be done under the colour of his office;
and ( iii ) there must be reasonable grounds for believing that
the acts were done by a public servant as such or under his
authority in the exercise of his legal duty and that the act is not
illegal. Good faith plays a vital role under this section. Good
faith does not require logical infallibility but due care and
caution as defined under Section 52 of the code.
Emperor vs Mammun:
The accused, five in number, went out on a moonlit night
armed with clubs, and assaulted a man who was cutting rice in
their field. The man received six distinct fractures of the skull-
bones besides other wounds and died on the spot. The accused
on being charged with murder pleaded right of private defence
of their property. Held under Section 99 there is no right of
private defence in cases where there is time to have recourse
to the protection of the public authorities.
Public prosecute vs Suryanarayan:
On search by customs officers certain goods were found to
have been smuggled from Yemen into Indian Territory. In
course of search the smugglers attacked the officers and
injured them. They argued that the officers had no power to
search as there was no notification declaring Yemen a foreign
territory under Section 5 of the Indian Tariff Act. It was held,
that the officers had acted in good faith and that the accused
had no right of private defence.
IPC Section100. When the right of private defence of the
body extends to causing death:

99
The right of private defence of the body extends, under the
restrictions mentioned in the last preceding section, to the
voluntary causing of death or of any other harm to the
assailant, if the offence which occasions the exercise of the
right be of any of the descriptions hereinafter enumerated,
namely:--
First-Such an assault as may reasonably cause the
apprehension that death will otherwise be the consequence of
such assault;
Secondly-Such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the
consequence of such assault;
Thirdly-An assault with the intention of committing rape;
Fourthly-An assault with the intention of gratifying unnatural
lust;
Fifthly-An assault with the intention of kidnapping or
abducting;
Sixthly-An assault with the intention of wrongfully confining a
person, under circumstances which may reasonably cause him
to apprehend that he will be unable to have recourse to the
public authorities for his release.

To invoke the provisions of sec 100, I.P.C., four conditions

must exist:
• That the person exercising the right of private defense must
be free from fault in bringing about the encounter.
• There must be present an impending peril to life or of great
bodily harm
• There must be no safe or reasonable mode of escape by
retreat;
• There must have been a necessity for taking the life.
Moreover before taking the life of a person four cardinal
conditions must be present:
(a) the accused must be free from fault in bringing the
encounter;

100
(b) presence of impending peril to life or of great bodily harm,
either real or apparent as to create an honest belief of existing
necessity;
(c) no safe or reasonable mode of escape by retreat; and
(d) a necessity for taking assailant’s life.

Yogendra Morarji v State of Gujarat[AIR 1980 SC 660]

A person in peril cannot weigh in golden scales the necessary
force to be used— Supreme Court—1980

Facts: The appellant was approached by certain people

demanding from him the dues payable to them. On being
denied the same, they waited for the appellant and as soon as
the appellant left the house, the assailants blocked the path of
the appellant and signalled him to stop.
The appellant, apprehending an attack, fired three
rounds from his revolver, which resulted in the death of one of
the assailants.
The supreme court through Sarkaria, J. discussed in detail the
extent and the limitations of the right of private defence of
body. One of the aspects emphasized by the court was that
there must be no safe or reasonable mode of escape by retreat
for the person confronted with an impending peril to life or of
grave bodily harm except by inflicting death on the assailant.
This aspect has create quite a confusion in the law as it
indirectly suggests that once should first try to see the
possibility of a retreat than to defend by using force which is
contrary to the principle that the law does not encourage
cowardice on the part of one who is attacked..
Nand kishore lal case:
Accused who were Sikhs, abducted a Muslim married woman
and converted her to Sikhism. Nearly a year after the
abduction, the relatives of the woman’s husband came and
demanded her return from the accused. The latter refused to
comply and the woman herself expressly stated her
unwillingness to rejoin her Muslim husband. Thereupon the
husband’s relatives attempted to take her away by force. The
101
accused resisted the attempt and in so doing one of them
inflicted a blow on the head of the woman’s assailants, which
resulted in the latter’s death. It was held that the right of the
accused to defend the woman against her assailants extended
under this section to the causing of death and they had,
therefore, committed no offence.
IPC Section101. When such right extends to causing any
harm other than death:
If the offence be not of any of the descriptions enumerated in
the last preceding section, the right of private defence of the
body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions mentioned in
Section 99, to the voluntary causing to the assailant of any
harm other than death.
Mohinder Pal Jolly v. State of Punjab:-
Workers of a factory threw brickbats and the factory owner by
a shot from his revolver caused the death of a worker, it was
held that this section did not protect him as there was no
apprehension of death or grievous hurt.

IPC Section102. Commencement and continuance of the

right of private defence of the body:
The right of private defence of the body commences as soon as
a reasonable apprehension of danger to the body arises from
an attempt or threat to commit the offence though the offence
may not have been committed; and it continues as long as
such apprehension of danger to the body continues. The
apprehension of danger must be reasonable, not fanciful. For
example, one cannot shoot one’s enemy from a long distance,
even if he is armed with a dangerous weapon and means to
kill. This is because he has not attacked you and therefore
there is no reasonable apprehension of attack. In other words,
there is no attack and hence no right of private defence arises.
Moreover the danger must be present and imminent.
Kala Singh case:-
The deceased who was a strong man of dangerous character
and who had killed one person previously picked up a quarrel

102
with the accused, a weakling. He threw the accused on the
ground, pressed his neck and bit him. The accused when he
was free from the clutches of this brute took up a light hatchet
and gave three blows of the same on the brute’s head. The
deceased died three days later. It was held that the conduct of
the deceased was aggressive and the circumstances raised a
strong apprehension in the mind of the accused that he would
be killed otherwise. The apprehension, however, must be
reasonable and the violence inflicted must be proportionate and
commensurate with the quality and character of the act done.
Idle threat and every apprehension of a rash and timid mind
will not justify the exercise of the right of private defence.
IPC Section103. When the right of private defence of
property extends to causing death:
The right of private defence of property extends, under the
restrictions mentioned in Section 99, to the voluntary causing
of death or of any other harm to the wrong-doer, if the offence,
the committing of which, or the attempting to commit which,
occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated,
namely;
First-Robbery;
Secondly-House-breaking by night;
Thirdly-Mischief by fire committed on any building, tent or
vessel, which building, tent of vessel is used as a human
dwelling, or as a place for the custody of property;
Fourthly-Theft, mischief, or house-trespass, under such
circumstances as may reasonably cause apprehension that
death or grievous hurt will be the consequence, if such right of
private defence is not exercised.

IPC Section 103 provides the right of private defence to the

property whereas IPC Section 100 is meant for exercising the
right of private defence to the body of a person. It justifies
homicide in case of robbery, house breaking by night, arson
and the theft, mischief or house trespass which cause
apprehension or grievous harm. If a person does not have

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possession over the property, he cannot claim any right of
private defence regarding such property. Right to dispossess or
throw out a trespasser is not available to the true owner if the
trespasser has been successful in accomplishing his possession
to his knowledge. This right can be only exercised against
certain criminal acts which are mentioned under this section.
Mithu Pandey v. State:
Two persons armed with ‘tangi’ and ‘danta’ respectively were
supervising collection of fruit by labourers from the trees which
were in the possession of the accused persons who protested
against the illegal act. In the altercation that followed one of
the accused suffered multiple injuries because of the assault.
The accused used force resulting in death. The Patna High
Court held that the accused were entitled to the right of private
defence even to the extent of causing death as the forth clause
of this section was applicable.

Jassa Singh v. State of Haryana:

The Supreme court held that the right of private defence of
property will not extend to the causing of the death of the
person who committed such acts if the act of trespass is in
respect of an open land. Only a house trespass committed
under such circumstances as may reasonably caused death or
grievous hurt is enumerated as one of the offences under
Section 103.
Section104 IPC. When such right extends to causing any
harm other than death:
If the offence, the committing of which, or the attempting to
commit which, occasions the exercise of the right of private
defence, be theft, mischief, or criminal trespass, not of any of
the descriptions enumerated in the last preceding section, that
right does not extend to the voluntary causing of death, but
does extend, subject to the restrictions mentioned in section
99, to the voluntary causing to the wrong -doer of any harm
other than death.
This Section cannot be said to be giving a concession to the
accused to exceed their right of private defence in any way. If
anyone exceeds the right of private defence and causes death
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of the trespasser, he would be guilty under Section 304, Part
II. This Section is corollary to Section 103 as Section 101 is a
corollary to Section 100.
V.C.Cheriyan v. State:
The three deceased person along with some other person had
illegally laid a road through the private property of a Church. A
criminal case was pending in court against them. The three
accused persons belonging to the Church put up barricades
across this road with a view to close it down. The three
deceased who started removing these barricades were stabbed
to death by the accused. The Kerela High Court agreed that the
Church people had the right of private defence but not to the
extent of causing death of unarmed deceased person whose
conduct did not fall under Section 103 of the Code.
Section105. Commencement and continuance of the
right of private defence of property:
The Right of private defence of property commences when a
reasonable apprehension of danger to the property
commences. The right of private defence of property against
theft continues till the offender has effected his retreat with the
property or either the assistance of the public authorities is
obtained, or the property has been recovered.The right of
private defence of property against robbery continues as long
as the offender causes or attempts to cause to any person
death or hurt or wrongful restraint of as long as the fear of
instant death or of instant hurt or of instant personal restraint
continues.

• The right of private defence of property against criminal

trespass or mischief continues as long as the offender
continues in the commission of criminal trespass or mischief.
• The right of private defence of property against house-
breaking by night continues as long as the house-trespass
which has been begun by such house-breaking continues.

This right can be exercised if only there is no time to have

recourse of public authorities. As soon as the trespass is

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accomplished successfully the true owner of the property loses
right of private defence to protect property. No right of private
defence to protect property is available to a trespasser when
disputed land is not at all in possession of him.

Section106. Right of private defence against deadly

assault when there is risk of harm to innocent person:-
If in the exercise of the right of private defence against an
assault which reasonably causes the apprehension of death,
the defender be so situated that he cannot effectually exercise
that right without risk of harm to an innocent person his right
or private defence extends to the running of that risk.
Illustration
A is attacked by a mob who attempt to murder him. He cannot
effectually exercise his right of private defence without firing on
the mob, and he cannot fire without risk of harming young
children who are mingled with the mob. A commits no offence
if by so firing he harms any of the children.

This section removes an impediment in the right of private

defence. The impediment is the doubt in the mind of the
defender as to whether he is entitled to exercise his right even
when there is a possibility of some innocent persons being
harmed by his act. The Sections says that in the case of an
assault reasonably causing an apprehension of death, if the
defender is faced with such a situation where there exists risk
of harm to an innocent person, there is no restriction on him to
exercise his right of defence and he is entitled to run that risk.
Conclusion
To justify the exercise of this right the following are to be
examined:-
• The entire accident
• Injuries received by the accused
• nearness of threat to his safety
• Injuries caused by the accused

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• Circumstances whether the accused had time to recourse to
public authorities.
Right of private defence is a good weapon in the hand of every
citizen to defend himself. This right is not of revenge but
toward the threat and imminent danger of an attack. But
people can also like misuse this right. Its very difficult for court
to find out whether this right had been exercised in good faith
or not.

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