Question-1 What is position of Criminal Law before the passing of Indian Penal Code, 1860 in

India? Describe.

Ans- The history of codification of modern criminal law in India generally begins from the advent
of the British rule. However, its roots date back to the Vedic age and the rule of various Hindu
and Muslim dynasties. The modern criminal justice system is based on English laws and
practices. These practices are practical as well as contemporary. As a result, a major chunk of
criminal laws that exist today still relies on the British-era laws.

Criminal law in the Vedic age

In ancient India, Hindu religious laws contained many provisions for governing criminal as well
as civil matters. The Vedas, Shrutis, Smritis and even other documents like Manusmriti contain
provisions regulating criminal law. The practice of codifying criminal offences existed in this
period as well.

These laws also contained detailed procedural rules and regulations for trials. There are some
records which also show the existence of principles of evidence to govern these trials.

Criminal law in the Islamic age

With the advent of Islamic rule in India, criminal laws in several parts of the country saw major
changes. Even prior to the Mughal rule, the Delhi sultanates had already introduced offences
based on Islamic laws of Shariat. The main influence of these laws was Islamic religious texts
like the Quran, Sunna, Hadis, Ijma, Qiya, etc.

During the Mughal rule, the codification of criminal law of law became more sophisticated.
Muslim criminal law came under three broad categories: crimes against God, crimes against
sovereignty, and crimes against individuals.

The law even divided modes of punishments into categories. These included death,
dismembering of limbs, stoning, levy of fines, confiscation of property, the punishment of exile,
etc.

After the British arrived in India, they initially decided not to interfere much with existing
Muslim criminal laws. They implemented changes in a phased manner so as to not upset the
locals.

Criminal law in the British period

When Warren Hastings introduced his Judicial Plan of 1772, he did not many any severe
changes to substantive criminal law.  In 1773, he slowly started changing rules of procedure and
evidence in existing criminal laws. For example, he abolished the practice of allowing male
relates of victims to pardon their killers.
During this time, serious offences like homicide became crimes against the state instead of being
private offences. This laid the foundation of the modern practice of the state prosecuting people
who commit public offences.

From 1790 onwards, Lord Cornwallis extended the process of codifying criminal law. Major
changes took place in the subject of sentencing. As a result, the process of levying punishments
physically harming and dismembering convicts slowly started fading.

Lord Wellesley made even more changes to the offences of murder and homicide in the early
1800s. For example, the law now made distinctions between intentional and unintentional
killing.

Furthermore, rules of evidence became stricter and the threshold of proof to indicate guilt
increased greatly. In presidency towns like Madras, Bombay and Calcutta, the British made
many changes keeping local conditions in mind.

Codification of Substantive Criminal Laws

According to the Charter Act, 1833, India’s first law commission in 1834 recommended drafting
of the Indian Penal Code. Lord Macaulay, who was the chairman of that law commission,
spearheaded its drafting. The Code was basically a comprehensive enactment describing all
major crimes in existence at that time.

Despite several revisions over almost thirty years, the law did not come into force until 1860. It
was only after the Rebellion of 1857 that the British decided to implement it.

IPC has seen several amendments since it first came into existence. Although it largely relied on
British laws and practices, many of its provisions are still the same.

Even the Indian Evidence Act came into existence in 1872 under the guidance of Lord
Macaulay. Its foundation was largely the British law of evidence, but it has seen many changes
since then.

Codification of Procedural Criminal Laws

Although the British had enacted a Criminal Procedure Code for India in 1862, modern
procedural laws came much later. The Code of 1862 was amended and replaced many times
later to make procedural laws modern.

After Independence, the Law Commission made many recommendations to update CrPC. Some
of these changes were the abolition of jury trials. The most important reason for these changes
was to make the criminal procedure quick and effective. CrPC was finally enacted again by
the Parliament in 1973, and it has been amended many times since then.
Question 2- “There may be element of abetment in conspiracy but conspiracy is
something more abetment”. Evaluate this statement so as to bring out the distinction
between the two with reference to leading cases.
In the case of State of Andhra Pradesh Vs. Kandimalla Subbaiah & ANR [1961] INSC
85 (8 March 1961) the court held that there is no analogy between S. 120B and S. 109 of the
Indian Penal Code. There may be an element of abetment in a conspiracy which is an offence
by itself but conspiracy is something more than abetment for which a person could separately
be charged. Offenses created under SS. 109 and 120B of the Indian Penal Code are quite
distinct and there is no warrant for limiting the prosecution to only one element of
conspiracy, that is, abetment when the allegation is that what a person did was something
over and above that. If the alleged offenses flow out of the conspiracy the appropriate form of
charge would be a specific charge in respect of each of those offenses along with the charge
of conspiracy.

ABETMENT:

In the Indian Penal Code, Abetment is defined under section 107 as:

Abetment of a thing – A person abets the doing of a thing, who: –

a) Instigates any person to do that thing; or

b) Engages with one or more other person or persons in any conspiracy for the doing ofthat
thing if an act or illegal omission takes place in pursuance of that conspiracy, andto the doing
of that thing; or

c) Intentionally aids, by any act or illegal omission, the doing of that thing.Comprehensively
under the Indian Penal Code, abetment can be defined as a person becomesliable as an abettor
if he instigates another to commit a crime or engages in a conspiracy withanother to commit a
crime and some act is done in furtherance of such conspiracy or if heintentionally aids
another in order to facilitate the commission of a crime. The term ‘abet’ ingeneral usage
means to assist, advance, aid, conduce, help and promote. The word ‘abet’ hasbeen defined as
meaning to aid; to assist or to give aid; to command, to procure, or to counsel;to countenance;
to encourage; induce, or assist, to encourage or to set another one to commit.[v]

The term ‘abetment’ in criminal law indicates that there is a distinction between the
personabetting the commission of an offence (or abettor) and the actual perpetrator of the
offence orthe principal offence or the principal offender.

An abettor is a person who abets an offence, who abets either the commission of an offence
orthe commission of an act which would be an offence, if committed by a person capable by
lawof committing an offence with the same intention or knowledge as that of the abettor.
Theessentials are:

(1) There must be an abettor;

(2) He must abet, and

(3) The abetment must be an offence or an act that would be an offence, if committed

by a person capable in law of committing the offence with the same intention orknowledge as
that of the abettor.

CRIMINAL CONSPIRACY

In Mulcahy v. R. the House of Lords stated, “A conspiracy comprises not just in the goal of
at least two however in the understanding of at least two to do an unlawful demonstration by
unlawful means. Insofar as such a plan rests in expectation just it is just indictable. At the
point when two consent to convey it into impact, the very plot is a demonstration in itself and
the demonstration of every one of the gatherings guarantee against guarantee actus contra
actum fit for being authorized if legitimate, culpable if for a criminal article or the utilization
of criminal means.”

Conspiracy under the Indian Penal Code originally was punishable only in two forms, viz.,
(i)conspiracy by way of abetment and

(ii) conspiracy involved in a certain offence.

In the formeran act or illegal omission must take place in pursuance of conspiracy in order to
be punishablewhile in the latter membership suffices to establish the charge of conspiracy.

Thus the Indian Penal Code deals with the law relating to criminal conspiracy:

 as a substantive offence;
 as a form of abetment (Chapter V, section 107);
 to wage, attempt, or abet waging of war against the Government of India. (Chapter
VI,section 121A);
The arrangements of Sections 120 An and 120B IPC have acquired the law of conspiracy
India in line with the English law by making the clear demonstration unessential when the
conspiracy is to submit any culpable offense. The arrangements, in such a circumstance,
don’t need that every single individual who is involved with the conspiracy should do some
obvious demonstration towards the satisfaction of the object of conspiracy the fundamental
fixings being an understanding between the schemers to perpetrate the crime and if these
basics and prerequisites are set up, the demonstration would fall inside the catching of the
arrangements contained in Section 120B.
The Key Differences between Abetment and Conspiracy are as follows:-

1. Abetment is a process by which one or more engage or employ other(s) for

commission of an offence. The former i.e., the person, who abets is called the
“abettor”, while the latter i.e., the person who commits the offence with his own
hands is called the “principal offender”
2. But, conspiracy is a process by which an agreement is entered into between two or
morepersons for commission of an illegal act or doing/committing a lawful/ legal
act byillegal means. The parties to the agreement are called „Conspirators‟
3. In the offence of abetment, a mere combination of persons or agreement between
themis not enough but an act or illegal omission must take place in pursuance of
theconspiracy and order to the doing of the thing conspired for, But in conspiracy,
the mere agreement is enough, if the agreement is to commit anoffence.
4. Abetment can be committed by one or more, whereas conspiracy can be
committedbytwo or more.
5. In abetment, sanction of competent authorities is not necessary to proceed
againsttheabettors, who merely abetted to commit a crime.
6. While in conspiracy, sanction of competent authorities is necessary to proceed
againstthe conspirators who merely agreed to commit a crime.
7. Abetment is a genus while conspiracy is species.
8. Abetment per se is not a substantive offence whereas criminal conspiracy is
asubstantive offence by itself and is punishable.
9. Abetment may be committed in various methods/ways viz., instigation,
conspiracy,intentional aid, etc., but conspiracy is one of the methods of abetment.
10. Crime of Abetment is explained in Sections 107 to 120 of the code while Crime of
Conspiracy is explained in Sections 120- A & 120-B of the Code.
Section 109 of the code is concerned distinctly with the discipline of abetments for which no
express arrangement is made under the Penal Code. A charge under Section 109 ought to,
thusly, be separated from everyone else with some other considerable offense submitted asa
result of abetment. Be that as it may, the offense of criminal conspiracy is, then again, a free
offense. It is made culpable under Section 120 В of the code for which a charge under
Section 109 of the Code is superfluous and, to be sure, improper.

Question 3- “Every murder includes culpable homicide but every homicide is not
murder”. Amplify. Refer to cases?

Ans- The thin line is the intention behind the act. All murders are culpable homicide but the
vice-versa is not true. Ever since the IPC was enacted, this distinction as to which case will
fall under which category is a perennial question with which courts are often confronted. On
a plain reading of the relevant provisions of the Code, it appears that the given cases can be
conveniently classified into two categories but when it comes to actual application, the courts
are often confronted with this dilemma. This confusion often emerges when it is difficult to
interpret from the evidence whether the intention was to cause merely bodily injury which
would not make out an offence of murder or there was a clear intention to kill the victim
making out a clear case of an offence of murder. The most confusing aspect is 'intention' as
in both the provisions the intention is to cause death. Hence, you have to consider the degree
of intention of offenders. If the person is killed in cold-blood or with planning then it is
murder because the intention to kill is in high degree and not out of sudden rage or
provocation. On other hand, if the victim is killed without pre-planning, in sudden fight or in
sudden anger because of somebody's provocation or instigation, then such a death is called
culpable homicide. Hence, whether the act done is culpable homicide or murder is a question
of fact.

Distinguishing between the two: The distinction between the two was aptly set forth by
Sarkaria J., in State of A.P. v. R. Punnayya,((1976) 4 SCC 382) "In the scheme of the Penal
Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide'
but not vice versa. Speaking generally 'culpable homicide' sans 'special characteristics of
murder' is culpable homicide not amounting to murder. For the purpose of fixing punishment,
proportionate to the gravity of this generic offence, the IPC practically recognises three
degrees of culpable homicide. The first is what may be called, culpable homicide of first
degree, this is the gravest form of culpable homicide which is defined in section 300 as
'murder'. The second may be termed as 'culpable homicide of the second degree'. This is
punishable under the 1st part of Section 304. Then, there is 'culpable homicide of the third
degree'. This is the lowest type of culpable homicide and the punishment provided for it is
also the lowest among the punishments provided for the three grades, punishable under Part
II of Section 304."

Question 4- Differentiate among Theft, Robbery, Extortion and Dacoity by giving

examples?

Ans- Theft, Extortion, Robbery and Dacoity are offences in criminal law affecting the
property of a person, defined in Sections 378 to 402 of the Indian Penal Code. On a prima
facie basis they seem to be very much similar to each other, but on a closer look it may be
found that there are slight differences which distinguish one from another. Hence, the present
article focuses upon the differences between these four offences which seems to be similar to
each other.

Each of these offences is distinguished from another on the basis of small pivotal differences.

Theft:-

Theft is defined in S. 378 of Indian Penal Code 1. The essential ingredients of the offence of
theft is well-explained by the SC in K. N. Mehra v State of Rajasthan 2, where the SC held
that proof of intention to cause permanent deprivation of property to the owner, or to obtain a
personal gain is not necessary for the purpose of establishing dishonest intention. The Court
analysed the offence of theft under S. 378 thus: “Commission of theft….. consists in (1)
moving a movable property of a person out of his possession without his consent; (2) the
moving being in order to taking property with a dishonest intention. Thus: (1) the absence of
the person’s consent at the time of moving , and (2) the presence of dishonest intention in so
taking and at the time are the essential ingredients of the offence of theft. 3  Thus, it is
essential that theft may be committed only of movable property as against extortion ,
robbery , dacoity , movable property may include animals, fish, human corpses, electricity 4,
water, cattle etc. However, in case of wild animals or ferae naturae, there can be no absolute
property. But when killed upon the soil, they become the absolute property of the owner of
the soil.5 Similarly fish in running waters, such as rivers, and canals and in the lakes and seas
are ferae naturae and cannot be the subject of theft. So also fish in open irrigation tanks, or in
tanks not enclosed on all sides.6 The general rule with respect to human corpses is that there
can be no larceny with regard to a corpse, but anatomical remains and the like could be
personal property and hence capable of theft.

The main right of the individual that is sought to be protected under ss 378 and 379 is
undoubtedly his right of possession of the movables.

Extortion:-

Extortion is defined in S. 383 as appropriation of property by coercion. The essential

ingredients of the offence of extortion are: (1) intentionally putting a person in fear of injury;
(2) the purpose of which is to dishonestly induce the person put in fear and (3) to deliver
property or valuable security. In Romesh Chandra Arora v State, the accused had written
letters to one X enclosing photograph of his daughter in the nude and demanded hush money
from X and threatened X that he would circulate them to the relatives of X if the money was
not paid. He was convicted for extortion and criminal intimidation.

Robbery:-

Section 390 says, “In all robbery, there is either theft or extortion” and goes on to define
when theft is robbery and when extortion is robbery. Thus, a theft becomes a robbery when
the following two additional conditions are satisfied:-

1. when someone voluntarily causes or attempts to cause,

(i) death , hurt , or wrongful restraint , or
(ii) fear of instant death , instant hurt , or instant wrongful restraint
2.  the above act is done
a. in order to the committing of theft ,or
b. committing theft , or
c. carrying away or attempting to carry away property obtained by theft.

An extortion becomes a robbery when the following   three  additional conditions are
satisfied:-

1. when a person commits extortion by putting another person in fear of instant death,

hurt, or wrongful restraint, and
2. such a person induces the person put in such fear to deliver the property then and
there and
3. the offender is in the presence of the person put in such fear at the time of extortion.

In Shikandar v State, 1984, the accused attacked his victim by knife many times and
succeeded in acquiring the earrings and key from her salwar. He was held guilty of robbery.

Thus, robbery is the aggravated form of theft or extortion. It is different from theft and
extortion as there is the element of instant harm is involved in robbery, which is not an
ingredient of simple theft or extortion.
Dacoity:-

The essential ingredients of Dacoity are:

(i) five or more persons must act in association;

(ii) such act must be robbery or attempt to commit robbery; and

(iii) the five persons must consists of those who themselves commit or attempt to commit
robbery or those who are present and aid the principal actors in the commission or attempt of
such robbery.

The essential ingredient that differentiates dacoity from the above the number of persons
involved in association. In fact, however, dacoity may be called ‘robbery with five or more
persons’.

Difference between Theft, Extortion, Robbery and Dacoity:-

Therefore, we may distinguish between theft, extortion, robbery and extortion on the basis of
their definitions provided in the Indian Penal Code.

In case of theft, movable property is taken away without owner’s consent; in case of
extortion, consent of the person is obtained wrongfully by coercion; in case of robbery, the
offender takes property without consent, robbery being the aggravated form of theft or
extortion and in the case of dacoity also, there is no consent or it is obtained wrongfully.

Theft may occur only of movable property whereas, extortion may occur of movable or
immovable property, and in the case of both robbery and dacoity, it may be committed with
respect to immovable property, where it is in the form of extortion and not otherwise. There
is no element of force or compulsion, in case of theft; force or compulsion exist in extortion,
the person being put in fear of injury to himself or to any other persons.

There is no delivery of property by the victim, in theft; whereas there is delivery in extortion;
in case of robbery and dacoity, there is no delivery if theft occurs during the course of
robbery or dacoity.

Punishment for theft is imprisonment of either description for a term which may extend to
three years, or with fine or with both (Section 379). Punishment for extortion is imprisonment
of either description for a term which may extend to three years, or with fine, or with both
(Section 384). Punishment for robbery is rigorous imprisonment for a term which may extend
to ten years, and shall also be liable to fine; and if the robbery be committed on the highway
between sunset and sunrise it may be extended to fourteen years (Section 392). Punishment
for dacoity imprisonment for life, or with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine (Section 395).

Question 5- Define Defamation? State its essential elements and exception?

Ans- Defamation as the meaning of the word suggests is an injury to the reputation of a
person resulting from a statement which is false. A man’s reputation is treated as his property
and if any person poses damage to property he is liable under the law, similarly, a person
injuring the reputation of a person is also liable under the law. Defamation is defined
in section 499 of Indian Penal Code 1860 and section 500 provides that a person committing
an offense under this section is liable with simple imprisonment for a term of 2 years or fine
or with both.

Essential Elements of Defamation

1. The Statement should be made

A statement can be made by words either spoken or intended to be read, or by signs or by

visible representations. For example, X is asked who stole Y’s diamond necklace. X points to
Z, intending to cause everybody to believe that Z stole the diamond necklace. This is
defamation.

2. The Statement must be defamatory

Defamation begins when somebody makes a false and unpleasant statement, and person who
makes a defamatory statement can be held liable for defamation. A defamatory statement is
likely to diminish the good belief that others hold about the person and it has the propensity
to make the society or other persons to look at him with a feeling of ridicule, hatred, fear or
dislike. Abusive language sometimes may also be defamatory, for example, to call a man
hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory
statement and what is not a defamatory statement. To say a motorist drives negligently is a
defamatory statement. To criticize goods is not a defamation. To say that a baker’s cake is
always distasteful is defamatory.

3. The Statement must refer to the plaintiff

The defamatory statement must refer to the person. The reference may be implied or
expressed. It is not necessary that the plaintiff’s name has to be mentioned if he can still be
recognized. The person referred to in the defamatory statement can be living or deceased,
however, the defamation suit on behalf of a deceased person can be filed only if the person
filing the defamation suit has an interest.

4. The intention of the wrongdoer

The person making the defamatory statement knows that the third party listening to the
statement will believe the statement to be true and it will result in causing injury to the
reputation of the person and the person can be defamed.

5. The Statement should be false

The truth is a defence to defamation so a defamatory statement should be false. The falsity of
the statement is an essential ingredient of defamation so if the statement made is true then
there is no defamation. The law does not punish any person for speaking the truth, even if it is
unpleasant.

6. The Statement should not be privileged

In some situations, the statements may be privileged i.e. the person who has made the
statement is secure from such liability.

7. The Statement must be published

For defamation to take place, the statement should be published i.e, communicated to a third
party. Any statement sent as a personal message or written in a personal diary does not
amount to defamation, but if the sender knows that it is possible that a third person can read
it, then it is considered as defamation. In the case Mahendra Ram v. Harnandan Prasad, the
offender was held liable because he had sent a defamatory message which was written in
Urdu language despite knowing the fact that the plaintiff could not read Urdu language and
eventually the letter will be read by someone else.

8. The third party believes the defamatory matter to be true

The other people of the society to whom the statement has been said believe that the
defamatory matter to be true about the plaintiff.

9. The Statement must cause injury

The statement made by the person should harm or injure the plaintiff in some or the other
way.

EXCEPTIONS TO DEFAMATION

Section 499 of the Indian Penal Code provides certain exceptions from the offence of
defamation.

1. Imputation of truth for the public good.

Any statement which is true and is published for the public good shall not be considered as
defamatory. The burden of proof lies on the defendant to prove that the statement is
absolutely true and for the public good. In Radheshyam Tiwari v. Eknath[iii], the defendant
had published defamatory news articles against the plaintiff and was not able to prove in
court that the facts he stated were true. Therefore, he was held liable for defamation.
2. Fair comments on the public conduct of public servants.

If any statement or criticism is published regarding a public servant discharging his public
functions or his character, in good faith and the scope of the statement only relates to the
conduct, character or functions discharged in that position, then it would not amount to
defamation. Such comments should be made only in good faith without any bad intentions or
malice and must be fair and honest.

3. Fair comment on the conduct of any person touching any public question.

Any views or opinions published in good faith made regarding the conduct of a person
touching any public questions while respecting his character shall not be defamation.

Illustration – A made a statement regarding B petitioned the government regarding a public

question. This would not amount to defamation.

4. Publications of reports of court proceedings.

Any statement published, which contains the results of a court case or a report of the
proceedings of a Court shall not be considered defamatory until and unless they are true.

5. Comments on the merits of cases in Court or conduct of witnesses.

If any information or opinion is published regarding the merits of any case or the conduct of
parties or any witnesses, then it would not be counted as defamation. The statements should
be made in good faith and should respect the character of persons.

Illustration – A says that he thinks B lied on the witness stand. This is under the exception.
But if A says “B lied in the witness stand because I know he is a man who lies”, then this will
not fall under the exception as it disrespects B’s character.

6. Criticism of literature.

If a person, in good faith, expresses his views about the performance or character of an author
which the author has submitted to the judgement of the public at large, then it does not
amount to defamation, the requirement being that the author has expressly submitted his
performance to the public. For example, an author submits his book for the judgement of the
public or an actor or performer submits his work to the judgement of the viewers.

7. Censure passed by a lawful authority on another.

If any person delivers any censure or expresses severe disapproval on another person’s
conduct, that it will not amount to defamation unless and until the person giving the censure
has a lawful authority to do so or has any authority arising out of a valid contract over the
other person on whom the censure is applied.

Illustration – A teacher censures the conduct of a student in front of another student, out of
good faith.

8. Complaint to authority.

If any person accuses another person of something in good faith, it would not amount to
defamation if they have lawful authority over the other person.

Illustration – if A complaints about the conduct of B who is a servant to his master in good
faith.

9. Imputation for protection of interests.

If any person makes any imputations or accusations on another person, in good faith, in order
to protect his own interests or for the public good, then it shall not be considered as
defamation.

Illustration – A, an assistant while making a report to his boss makes an imputation on the
character of C. if it is made in good faith then it is within the exception.

10. Caution for the public good.

If any statement is made in good faith against a person as a caution for him or for the public
good then it will not be observed as defamation.