Complete Notes : Law

of Crimes
 Notes – Law of Crimes

Criminal law is a body of rules and statutes that defines conduct prohibited by the state
because it threatens and harms public safety and welfare and that establishes
punishment to be imposed for the commission of such acts. Criminal law differs
fromcivil law, whose emphasis is more on dispute resolution than in punishment.

The term criminal law generally refers to substantive criminal laws. Substantive
criminal laws define crimes and prescribe punishments. In contrast, Criminal Procedure
describes the process through which the criminal laws are enforced. For example, the
law prohibiting murder is a substantive criminal law. The manner in which state
enforces this substantive law—through the gathering of evidence and prosecution—is
generally considered a procedural matter.
Definition Of Crime: Many jurists have defined crime in their own ways some of which
are as under:
· Blackstone defined crime as an act committed or omitted in violation of a public law
either forbidding or commanding it.
· Stephen observed a crime is a violation of a right considered in reference to the evil
tendency of such violation as regards the community at large.
· Oxford Dictionary defines crime as an act punishable by law as forbidden by statute
or injurious to the public welfare.

Fundamental Elements of Crime: There are four elements which go to constitute a

crime, these are:-
· Human being
· Mens rea or guilty intention
· Actus reus or illegal act or omission
· Injury to another human being

Stages of Crime:-
In the crime which are committed at the spur of the moment or in the heat of passion,
the distinct stages in the commission of crime are not apparent. But in pre-mediated
crimes there are four distinct stages-

I- Contemplation
II- Preparation to commit a crime
III- Attempt
IV- Accomplishment

I Contemplation:
In the Ancient English Criminal law, a mere intention to commit a crime was
punished like a completed crime. But after sometime, it was observed that the doctrine
that mere intention amounts to a crime passes long ago and now even in order to
constitute an attempt, there must be something more than an intention to commit it.
In Re Seinfeld (1784), Lord Mansfield observed “so long as an act rests in bare
intention only it is not triable”. Lord Chief Justice Brian also observed that a thought
to a man is not triable because that devil himself knows not the thought of the person.
However the law takes notice of the intention to the commit crime if it is
verbally
expressed without committing any act in some cases as example an agreement between
two or more person to commit a crime amounts to criminal conspiracy (Section 120A)
and it is punished even if no act is committed in pursuance of the agreement. Similarly,
are the offence of Criminal intimidation and Criminal Insult (Section 503 and Section
506).
III Preparation to commit a crime:
Preparation means devising means always necessary for the commission of the crime.
Generally speaking, a preparation to commit a crime is not punishable. But Certain
dangerous type of preparation are punished. For Example, preparation to wage war
against the government (Section 122), Preparation to wage war against any friendly
foreign country (section 126), To commit robbery and dacoity (Section 399). These
preparations are such which totally preclude any innocent person committing them
and, therefore, such preparation are punished. Criminal liability starts from this stage
and lawallows opportunity to repent from the crime only upto the stage of preparation.
III Attempt:
The word attempt has not the been defined in the Indian Penal Code (IPC). According to
Sir Stephen, ‘an attempt to commit a crime is an act termed with intention to commit it
and froming part of the series of acts which could constitute the offence if it were not
interrupted.’

Kenny Describes Certain crime as incomplete crime such as attempt, abetment and
criminal conspiracies.
J. Baron Park has said, “acts remotely leading towards the commission of an offence
are not to be treated as an attempt to commit it.But acts immediately connected with it
are.”
Lord Bishop has Observed, “ that an attempt is an intended , apparent and an
unpunished crime.”
Thus, if an attempt is analysed, three characteristics or three essential documents are
formed:
a) An intention to commit a crime.
b) Some overt act must be done towards the commission of the crime i.e. an attempt is
not possible by an offence which is committed by an omission because such omission
constitutes a completed offence.( this is not hundred percent correct)
c) The act done must fall short of the completed offence.
The IPC deals with attempt in the following three ways:-
1. In some cases, the completed offence and their attempt has been provided under the
same sections and same punishments is given for both. There are 26 such sections
among the IPC sections.
Such sections are:
121,124,124(A),125,130,131,152,153(A),161,162,163,165,196,198,200,213,239,240,2
41,251,335,337,391,397,398 and 460.
2. In some other cases, the completed offence and its attempts are dealt with side by
side in different section and different punishments are provided for them. There are
only four such types of attempts-
a) Attempt to Murder (Section 307) and Murder punished (section 302)
b) Section 304 punishes culpable homicides. Section 308 punishes attempt culpable
homicides.
c) Section 392 punishes robbery and section 393 punishes attempted robbery.
d) Section 309 punishes an attempt to commit suicide.( But Suicide as such is not
punished anywhere; rather it can’t be punished also)
3. All the remaining cases of attempt are covered under section 511 of IPC which is the
residuary section. Section 511 says that if an attempt is not otherwise punished in penal
code, it shall be punished under section 511 and the maximum punishment under this
section shall be one half of the maximum punishment prescribed for that offence. For
the purpose of this section the half of one life imprisonment is computed as 10 years of
imprisonment.

IV Accomplishment or Completion:
The last stage in the commission of an offence is its accomplishment or completion. If
the accused succeeds in his attempt to commit the crime, he will be guilty of the
complete offence and if his attempt is unsuccessful he will be guilty of an attempt only.
For example, A fires at B with the intention to kill him, if B dies, A will be guilty for
committing the offence of murder and if B is only injured, it will be a case of attempt to
murder.
BASIS OF GENERAL EXCEPTIONS IN INDIAN PENAL CODE

As a general principal of law, man is presumed to know the nature and consequence of
his act and is, therefore held responsible for the commission of it. However, there are
certain exceptions to this rule wherein a person may be excused of crime. In some cases,
a person may be entirely excused from the consequence of the punishment by reason of
the absence of the requisite mens rea necessary for the commission of the particular
offence. This is based on the well known maxim actus non facit reum, nisi mens sit
rea i.e. theact itself does not make a man guilty unless his intentions are so. This means
that law will held the person criminal if he has got the requisite mens rea.

Sections of Indian Penal Code (IPC) Offence

Section 76 Mistake of Fact
Section 77 Act of Judge when Acting judicially
Section 78 Act done pursuant to order of the court
Section 79 Mistake of Fact believing himself justified
byLaw
Section 80 Accident in doing lawful thing
Section 81 Act likely to cause harm, But done without
criminal intent and to prevent other harm

Section 76 (Mistake of Fact)

Nothing is an offence which is done by a person who is, or who by reason of a

mistake of fact and not by reason of a mistake of law in good faith believes himself
to be, bound by law to do it.

Ingredients:

a) Nothing is an offence which is done by a person: would mean that act committed by
the person does not amount to an offence under the IPC.

b) By reason of mistake of fact: Here, Mistake is not mere forgetfulness. It is a slip

made not by design, but by mischance. Honest and reasonable mistake stands in fact on
the same footing as absence of reasoning facility. Ex. The accused while guarding his
maize field shot an arrow at a moving object in the bonafide belief that it was a bear and
in the process caused

the death of a man who was hiding there. He is committed the act under the mistake of
fact, hence he could not be liable for the murder.

2
c) Mistake of Law: It is the well settled principle of the law that Ignorance of Law is no
excuse.
One can’t plead the ignorance of law against the commission of the offence.

3
d) In a good faith believes himself to be, bound by law: In order to entitle a person to
claim the benefit of this section, it is necessary to show the existence of the state by facts
which would justify the belief in good faith.

Section 77 (Act of Judge when Acting judicially):

Nothing is an offence which is done by a Judge when acting judicially in the

exercise of any power which is, or which in good faith he believes to be, given to
him by law.

Ingredients:

a) Nothing is an offence which is done by a Judge: would mean that act committed by the
judge does not amount to an offence under the IPC if other conditions are satisfied.

b) acting judicially: would mean act was done by applying his judicial mind. A judge is
protected by this section only when he is acting judicially. Acting judicially' means
professionally acting as a judge. Thus, a collector merely arranging a revenue question,
or a magistrate removing an obstruction or an officer in command of a cantonment who
arrests and confines a supposed lunatic, are not, when so employed, 'acting judicially'.

c) In the exercise of any power: means that act is done with the authority of law.

Section 78 (Act done pursuant to the judgment or order of Court)

Nothing which is done in pursuance of, or which is warranted by the judgment

or order of, a Court of Justice; if done whilst such judgment or order remains in
force, is an offence, notwithstanding the Court may have had no jurisdiction to
pass such judgment or order, provided the person doing the act in good faith
believes that the Court had such jurisdiction.

The protection given to an officer under this section, is wider than that given to a judge,
under section 77, inasmuch as the officer under this section is protected in carrying out
an order of a court, having, as a fact, no jurisdiction at all while, under section 77, the
judge must be acting within his jurisdiction to be protected by the section

Section 79 (Act done by a person justified, or by mistake of fact believing himself

justified, by law)

Nothing is an offence which is done by any person who is justified by law, or who
by reason of a mistake of fact and not by reason of a mistake of law in good faith,

4
believes himself to be justified by law, in doing it.

5
This section which is complementary to s 76, is in two parts. According to the first part,
an act, which a person is justified, by law, in doing, is not an offence. According to its
second part, an act, which the person, doing it, believed, in good faith, by reason of a
mistake of fact, and not by reason of a mistake of law, to be justified, by law, in doing, is
not an offence. The section, therefore, deals with cases in which a person acts in the
belief that he is justified by law to so act, as s 76 deals with cases in which a person acts
in the belief that he is bound by law to so act. In other respects, the two sections are
identical. Mistake of law is not justification under this section also. The IPC does not
exempt an act done under a mistake of law from the operation of the penal law.

In view of s 79, IPC, nothing would constitute an offence under the IPC if the act done is:

(a) justified in law

(b) done by a person who by reason of mistake of fact in good faith believes
himself to be justified by law in doing so.

Under both these sections there must be a bona fide intention to advance the law
manifested by the circumstances attending the act which is the subject of charge; and
the party accused cannot allege generally that he had a good motive; he must specifically
allege that he believed in good faith that he was bound by law (section 76) to do as he
did, or that, being empowered by law (section 79 ) to act in the matter, he had acted to
the best of his judgment exerted in good faith.

Section 81 --- Necessity (Act likely to cause harm, but done without criminal intent,
and
to prevent other harm)

Nothing is an offence merely by reason of its being done with the knowledge that
it is likely to cause harm, if it be done without any criminal intention to cause
harm, and in good faith for the purpose of preventing or avoiding other harm to
person or property.

Explanation.--It is a question of fact in such a case whether the harm to be prevented or

avoided was of such a nature and so imminent as to justify or excuse the risk of doing
the act with the knowledge that it was likely to cause harm.

Illustrations

(a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his
part, finds himself in such a position that, before he can stop his vessel, he must inevitably
run

6
down a boat B, with twenty or thirty passengers on board, unless he changes the course
of his vessel, and that, by changing his course, he must incur risk of running down a boat
C with only two passengers on board, which he may possibly clear. Here, if A alters his
course without any intention to run down the boat C and in good faith for the purpose of
avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though
he may run down the boat C by doing an act which he knew was likely to cause that
effect, if it be found as a matter of fact that the danger which he intended to avoid
was such as to excuse him in incurring the risk of running down the boat C.

7
Section 81comes into play when the person, causing harm, say by confining another, has
a genuine and reasonable apprehension that to allow the other to remain at large will
endanger the person and property of others. So, in order to attract this section, it
should be shown that the act, complained of, was done in good faith in order to prevent,
or avoid, harm to the person or property of others.40 If a person threatens to commit an
assault, he can be disarmed and, if necessary, put under restraint to prevent harm to
persons or to property. A private person is justified in doing an act which would prevent
any harm, happening to himself or another person, provided he does that act bona fide
and without unnecessary force or violence. So it is no offence to pull down houses to
prevent a fire from spreading or to enter a person's house to put out a fire. But where
some persons dug the road to avoid their field being flooded, it was held that there was
no question of there being a more likelihood of causing damage to public property and,
therefore, no protection under this section could be taken.

Under the section, the other harm to be prevented must be of such nature, and so
imminent, as to justify causing the harm inflicted; and this is a question of fact
depending on the circumstances of each case.

Compulsion of necessity- This section deals with what is known, in English law, as
'compulsion by necessity', i.e., where a person confronted with two evils, one of which is
inevitable, chooses the lesser rather than the greater, the law justifies his doing so, and
does not render him responsible for the consequences of his action. The ground for his
non-liability is justification or excuse, by reason of the absence of mens rea.

Motive 'for the Purpose of Preventing or Avoiding other Harm to Person or

Property'

This section comes into play when the person causing harm, say by confining another,
has a genuine and reasonable apprehension that to allow the other to remain at large
will endanger the person and property of others. So, in order to attract this section it
should be shown that the act complained of was done in good faith in order to prevent
or avoid, harm to the person or property of others. If a person threatens to commit an
assault, he can be disarmed and, if necessary, put under restraint to prevent harm to
persons or to property. A private person is justified in doing an act which would prevent
any harm happening to himself or to another person provided he does that act, bona
fide and without unnecessary force or violence.

ACT DONE WITH CONSENT (SECTIOSN 87-93)

The rules of liability in cases of acts done with consent are primarily based on the
maxim – Volenti Non Fit Injuria. In offences against state or the public in general, the
question of consent is immaterial. In the offences against property, consent are a valid

8
defence in both civil and criminal law. Sections 87, 88 and 89 of the IPC deal with the
law of consent in criminal cases. These sections apparently talk of bodily harm and not
of the property as the very idea of loss or injury to property negates the element of
consent.

9
MEANING OF CONSENT

Consent has not defined in the IPC. However, it can be said to be a positive act of assent
of mind and is different from a mere submission, want of dissent or acquiescence.
Coleridge, J. In R. Vs Day observed that mere submission of child in the hands of a
strong man is not consent. In R. Vs Nichol, it has been held that mere approbation does
not amount to consent. If a master takes indecent liberties with a female scholar,
without her consent though she does not resist, he is guilty of assault.

Negative connotation: Section 90 of IPC defines consent in a negative way. “ consent is

not
consent in the legal sense if given

a) under the fear of injury

b) under misconception of fact

c) the person acting knows or has reason to believe that consent is being give under
both abovementioned fact

d) given by the person of unsound mind or intoxicated mind incapable of understanding

the nature of act

e) by a person less then twelve years of age.

Consent in criminal law is different from civil law. In Indian Contract act, free consent
requires the absence of coercion, undue influence, fraud, misrepresentation etc. In
criminal cases it has restricted meaning. Fraud, undue influence generally don’t vitiate
consent in criminal cases. In rape cases, fraud does not vitiate consent. But in cases of
misconception, misrepresentation, misconception of fact vitiates consent.

GENERAL OVERVIEW TO SECTIONS 87 TO 93 OF IPC

Prima facie, the person who causes injury to another is liable therefor. Sections 87 - 93
lay down the rules for determining when the claims of society are satisfied by the
consent of the individual. They deal with the special circumstances under which:

(a) consent, express or implied, to incur or run the risk of injury, may be given
(sections 87 -91); and

(b) where, owing to certain urgent reasons, consent in fact is altogether dispensed with,
but is given by construction of law; the result in either case being that the person
causing the injury is exempted from all liability (sections 92 and 93 ).

10
 ➢ Sections 87 - 93 of the IPC refer to four kinds of injuries:

(i) Death-- Sections 87 - 89, 92-93 (Illustration), i.e., death of human being (s 46 ),

(ii) Grievous hurt-- Sections 87, 89(3), 92(2) and 93. As to what constitutes grievous
hurt, (see Section 320 IPC),

11
(iii) Hurt—Sections 92(3) and 93, i.e., 'bodily pain, disease or infirmity' (refer section 319
IPC),

(iv) Harm—Sections 87 - 89, 92-93. Harm may be caused to a person in respect to his
body, mind, reputation or property (section 44). But harm to the body if it amounts to
death, grievous hurt or hurt, is so designated; consequently, harm denotes injury to the
person other than the kinds mentioned above, e.g., cutting or disfigurement of the hair,
or injury to the mind, reputation or property.

➢ Sections 87 - 93 refer only to Personal Injuries

Consent plays a very important part not only in offences relating to injury to the person
but also in offences relating to property, such as theft and sexual relations, such as rape.
But the general exceptions in these sections refer only to the operation of consent on
physical injuries.

➢ Sections 87 - 91 deal with express or implied consent, and sections 92 and

93 withconstructive consent. Sections 88, 89 and 92 cover all cases of surgical
operation.

SECTION 87 -Act not intended and not known to be likely to cause death or
grievous hurt, done by consent

“Nothing which is not intended to cause death, or grievous hurt, and which is not
known by the doer to be likely to cause death or grievous hurt, is an offence by
reason of any harm which it may cause, or be intended by the doer to cause, to 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 agrees to fence with each other for amusement. This agreement implies the
consent of each to suffer any harm which, in the course of such fencing, may be caused
without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

This section 87 of IPC proceeds upon the maxim volenti non fit injuria(he, who
consents, suffers no injury). This maxim is founded upon two very simple propositions:
(a) every person is the best judge of his own interest; and (b) no man will consent to
what he thinks hurtful to himself. The mere consent of a person above 18 years of age

12
will justify, under this section, any harm, resulting from an act which is not intended by
the doer to cause and which is not known to the doer to be likely to cause death or
grievous hurt. The protection, under the section, thus, extends even to injuries which
actually cause death or grievous hurt, provided it was not intended, for instance, if an
eye is put out in fencing, or one is killed by a cricket ball. It is essential, however, that
the act consented to, though not intended to cause death or grievous hurt, should be one
which, from its nature, is not likely to have such result. Ordinarily, games, such as
fencing single sticks, boxing, football and the like, are protected by this section.

13
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.”

Illustration

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

Under this section, any harm, except the intentional death, may be caused if the act (i.e.,
harm) is done, by the doer, in good faith and for the benefit of the consenting person
who must, by virtue of the second clause of section 90, IPC, be, at least, of 12 years of
age. The act, consented to, may be done either: (a) with a knowledge that death is
likely (though death must not be intended); or (b) with intention to cause 'grievous
hurt', or 'hurt' or other harm; or (c) with a knowledge that either of these three kinds of
harm is likely. Where the accused, in good faith and for the benefit of his patient and in
accordance with the recognised Indian

method of treatment for cataract, operated upon her for cataract with the result that she
lost the sight of her left eye, it was held that the act of the accused was not an offence
under this Code.

When a patient agrees to go for medical treatment or surgical operation, every

careless act of the medical man cannot be termed as 'criminal'. It can be termed
'criminal' only when the medical man exhibits a gross lack of competence or inaction
and wanton indifference to his patient's safety and which is found to have arisen from
gross ignorance or gross negligence. Where a patient's death results merely from error
of judgment or an accident, no criminal liability should be attached to it. Mere
inadvertence or some degree of want of adequate care and caution might create civil
liability but would not suffice to hold him criminally liable.

Distinction between Sections 87 and 88

This section differs from section 87 of the IPC in the following ways:

14
(i) Any harm may be inflicted, except the intentional causing of death under this section,
while besides death even grievous hurt cannot be consented to under section 87.

(ii) There is no provision as to the age of the consenting person in this section; but
section 90, clause (2) provides that the consent of a child under 12 years of age is not
such a consent as is intended by the IPC. The effect of this is therefore that the
consenting party under this section must be at least 12 years of age. The consenting
party must be above 18 years of age under section 87.

15
(iii) Under this section the act must be done for the benefit of the person consenting
thereto. There is no such condition for the act done under section 87.

(iv)It must be done in good faith to bring any act under this section. For seeking the
benefit of section 87 it is not a pre-requisite.

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 doer to cause or be
known by the doer to be likely to cause to that person:

Provisos.--Provided-- Firstly -- That this exception shall not extend to the

intentional causing of death, or to the attempting to cause death;

Secondly. -- That this exception shall not extend to the doing of anything which
the person doing it knows to be likely to cause death,534 for any purpose other
than the preventing of death or grievous hurt, or the curing of any grievous
disease or infirmity;

Thirdly. -- 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;

Fourthly. -- That this exception shall not extend to the abetment of any offence, to
the committing of which offence it would not extend.”

Illustration

A, in good faith, for his child's benefit without his child's consent, has his child cut for the
stone by a surgeon, knowing it to be likely that the operation will cause the child's death,
but not intending to cause the child's death. A is within the exception in as much as his
object was the cure of the child

This section protects harm caused to a person below 12 years of age or of unsound mind
by his guardian himself or by another with his consent in good faith for the benefit of
the said child or the person of unsound mind.

Provisions of the Section 89 when can be invoked:

16
The consent may be express or implied. A person, above 12 years of age, is considered
to be capable of giving his consent under s 88 of this IPC . Only the guardian, or the
person having lawful charge of the person, upon whom the harm is to be inflicted, or
the person, acting with the consent of either a guardian or person having charge, as the
case may be, can inflict the harm. The person, upon whom the harm is to be inflicted,
must be either a child under 12 years of age or a person of unsound mind because the
consent of such a person is implied in that of his guardian.

17
To invoke the provisions of this section, it is necessary to show that the act done was for
the benefit of the person under 12 years of age or of unsound mind. But the principle,
underlying this section, would be available even to a case of child above the age of 12
years

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 inconsequence of such fear or misconception; or

Consent of insane person.--if the consent is given by a person who, from

unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or

Consent of child.--unless the contrary appears from the context, if the consent is
given by
a person who is under twelve years of age.”

This section does not define 'consent' but describes the nature of 'consent' as the term is
used in the IPC. 'Two or more persons are said to consent when they agree upon the same
thing in the same sense'. Sir James Stephen defined consent in criminal law to mean 'a
consent freely given by a rational and sober person so situated as to be able to form a
rational opinion upon the matter to which he consents'. And he goes on to add that
'consent is said to be given freely when it is not procured by force, fraud or threats of
whatever nature'. The object and effect of this section obviously is not to lay down that a
child under 12 years of age is in fact incapable of expressing or withholding his or her
consent to an act, but to provide that where the consent of a person may afford a
defence to a criminal charge such consent must be a real consent, not vitiated by
immaturity, fear or fraud. Further, in the IPC a distinction is drawn between an act
which is done 'against the will' and an act done 'without the consent' of a person. Every
act done 'against the will' of a person, no doubt, is done 'without his consent', but an
act done 'without the consent' of a person is not necessarily 'against his will', which
expression, imports that the act is done in spite of the opposition of the person to the
doing of it. Where a husband being in sore distress, desired to commit suicide, his wife
asked him to first kill her and then to kill himself. He accordingly killed her, but was
caught before he killed himself, it was held that the consent of the wife was a consent
within the meaning of exception 5 to section 300, IPC . Though given under peculiar
circumstances it did not fall under any of the exceptions provided by this section and is
a valid consent under the section.

18
Scheme of s 90, IPC is couched in negative terminology. Consent is different from
submission. Consent given under fear/coercion or misconception/mistake of fact is not
consent at all.

SECTION 91-Exclusion of acts which are offences independently of harm caused

“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”

19
 Illustration

Causing miscarriage (unless caused in good faith for the purpose of saving the life of the
woman) is an offence independently 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.

This section is a sort of exception to the exceptions contained in Sections 87 - 89, IPC .
These sections have no application of acts which are offences (i.e., punishable under the
IPC, or under any special or local law) independently of any harm that they may cause.
Each of these sections is by its terms limited to acts which are offences 'by reason of any
harm’.

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 cause to a person for
whose benefit it is done in good faith, even without that person's consent, if the
circumstances are such that it is impossible for that person to signify consent, or
if that person is incapable of giving consent, and has no guardian or other person
in lawful charge of him from whom it is possible to obtain consent in time for the
thing to be done with benefit:

Provisos--Provided-- First. -- That this exception shall not extend to the

intentional causing of death, or the attempting to cause death;

Secondly. -- hat 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;

Thirdly. -- That this exception shall not extend to the voluntary causing of hurt, or
to the attempting to cause hurt, for any purpose other than the pre- venting of
death or hurt;

Fourthly. -- That this exception shall not extend to the abetment of any offence,
to the
committing of which offence it would not extend.”

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

20
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. There is no 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 committedno offence.

21
(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.

Sections 92 deals with cases of what may be termed constructive consent, i.e., cases
where, owing to certain urgent reasons, consent, in fact, is altogether dispensed with,
but is given by construction of law, the result being that the person causing the harm is
exempted from liability.

The essence of section 92 is that if it is impossible for a person to give consent under
section 88, or, being an incapable person, under section 89, it is impossible to obtain in
time the consent of his lawful custodian under that section, then, the person, desiring to
act, bona fide for his benefit, may proceed to do so without obtaining consent.

Illustrations (a) and (b) are illustrations of cases where an ordinary person is unable to
consent, i.e., consent is impossible. Illustrations (c) and (d) illustrate cases where
persons are legally incapable of giving consent and have no custodian at hand to do so.

The most familiar illustration of this section is that of the surgical operation [refer to
illustration
c) to the section]. Consent to a surgical operation frees the operator from criminal
responsibility for assault, when freely given with knowledge of the purpose of the
operation and when the purpose is lawful and the operation is performed with
professional skill. And the trend of legal opinion is in favour of the proposition that no
criminal responsibility should be incurred by a surgeon who, with proper care and skill,
and for the physical benefit of a sick person, performs on him a surgical operation even
without his consent.

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.”

Illustration

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.

The essentials of non-liability under this section are 'good faith', i.e., 'due care and
attention' and 'benefit'. It is not easy what meaning the latter word bears in this section.

22
The illustration shows that the benefit need not be a physical one. There is nothing to
confine the exemption under this section to medical practitioners. The communication
may be of any kind.

23
1.) Abetment -
• To abate means to instigate to help to encourage. When an offence is committed, and
several people take part in the commitment of it, every person can contribute in a manner
and degree different from the other. Section 107 to 120 of IPC deals with abetment. A
person abets the doing of anything to instigate any person to do that thing or who engages
with one or more person in any conspiracy for doing of that thing if an act or illegal or
omission takes place in pursuance of that conspiracy and order to the doing of that thing
aids by any act or illicit or omission and doing of that thing.

• Mere silent assent or verbal permission would not constitute instigation. For instance, A
tells B that he intended to murder C. Wishes do as you like. A kills C. B cannot be said to
have instigated A to murder C but silent approval shown in a way that had the effect of
inciting. Entering the offence is abetment accordingly it was held that when a woman
prepared to be a Sati those that followed her and stood by her crying Ram Ram and thereby
actively convened and count the act word guilty of abetment.

2.) Kidnapping-
• Kidnapping is of two kinds - Kidnapping from India and Kidnapping from lawful
guardianship. "Whosoever convey any person beyond the limits of India without the
consent of that particular person or of some person legally authorized to give consent on
behalf of that person is said to kidnap that person from India".

• The orphans under this section may be committed on a grown-up person or a minor by
convincing him or her beyond the limits of India. To bring a conviction under section 360,
the following two conditions must be followed.

1.) Conveying of any person beyond India.

2.) Conveying must be without the consent of that person.

• Whosoever takes or entices any minor under 16 years of age if a mail for under 18 years
of age if a female or any person of unsound mind out of the keeping of a lawful guardian of
such minor or person of unsound mind devoid of the consent of such guardian, is said to
kidnap such minor under the possession from legal guardianship, the offence under this
section may be committed in respect of either a little or a person of unsound mind and to
kidnap a grown-up person of sound mind, therefore, would not amount to an offence under
it.

• Enticing is an act of the accused by which the person kidnapped is induced on his own
accord to go to the kidnapper. The word entice involves an idea of inducement or element
buy exciting hope or Desire in the other enticement need not be confined to any single form
of a component. Anything which is likely to load the minor girl would be sufficient. There is
an essential distinction between taking and enticing. The mental attitude of the minor is
immaterial in case of taking.
• When are minor leaves her guardian protection knowing and having the capacity to know
the full impact of what she is doing and voluntarily joins the accused in such a case, there is
no taken by the accused? If a minor leaves her guardians' protection without the accused
having played an active part and later joins the accused and the accused helps her in her to
design not to return to our gardens house then though the part played by the accused can
be regarded as facilitating the fulfilment of the intention of the minor that part played by
theaccused fall short of the inducement and would not amount to taking.

3.) Theft -
• Whoever intending to take dishonestly and immovable property out of the position of any
person without that person's consent moves that property in order to such taking is said to
commit theft. In order to constitute that have the factors which essential are dishonest
intention to take the property, the property must be movable, it should be taken out of the
position of another person, and it should be taken without the consent of that person, and
there should be some moving of the property in order to accomplish the taking of it
fromthe possession.

• The intention is the gist of the offence. The intention to take dishonestly exists when the
later intends to cause wrongful gain to oneself or some other person or the wrong full
loss to another person. The choice to take dishonestly must exist at the time of moving of
the property.

• It is not necessary that the taking have to be permanent or to appropriate the thing taken.
There may be theft without an intention to deprive the owner of the property permanently.
Where the accused took out and Indian Air Force plane for an unauthorized flight even
temporarily it was held that he was guilty of theft.

• The offence of theft is complete when there is a dishonest moving of the concerned
property even though the property is not detached from that to which it is secured. It is not
necessary that the property should have been removed out of the owners reach are carried
away from the place in which it was found.

4.) Cheating-
• Whoever by receiving any person fraudulently or dishonestly induces the persons to
accept to deliver any property to any person or too concerned that any person shall retain
any property or intentionally induces the person so deceased to do or omitted to do
anything which he would not if he were not so received and which act or omission cause or
is likely to cause damage or harm to that person in body-mind reputation of property is said
to cheat.

• The essential ingredient which is required for the offence of cheating is the deception
of any person and fraudulently and dishonestly inducing that person to deliver any
property to any person or to consent that person shall retain any property or intentionally
induces that person to do or omit to do anything which he cannot do if you are not deceived
and which act or omission causes a likely to cause damage or harm to that person in body-
mind reputation of the property.

• Therefore in the definition of cheating, there are set forth to different classes of acts which
the person deceived can be induced to do. In the first place, he may be induced fraudulently
and dishonestly to deliver any property to any person or do consent that any person
shall
retain any property. The second class of acts as outlined in the section is that doing or
vomiting to do anything with the person deceived would not do a rumoured to do if you are
not deceived.

• Whosoever cheats and thus dishonestly induces the person deceived to deliver any
property to any person or may alter or destroy the whole or any part of the valuable
security or anything which is signed sealed and which is capable of being converted into
valuable security shall be punished with imprisonment for the description for a term which
may extend to 7 years or shall also be liable to fine.

• The foreign offence of cheating it must be proved that the complaint parted with his
property acting on a representation which fell to the knowledge of the accused and that the
accused had a dishonest intention from the outset.

5.) Wrongful Restraint -

• Whoever voluntarily of struck any person to prevent that person from proceeding in any
direction in which that person has a right to move is said wrongfully to restrain that person.

• Wrongful restraint means the keeping of a man out of a place where he wishes to be and
has the right to be. The slightest unlawful of a section to the liberty of the person to go
when and where he likes to go provided he does so in a lawful manner and cannot be
justified and is punishable under this section. For the offence of wrongful restraint, it is
necessary that the person concerned must have a right to proceed.

• The section contemplated in section 339 is not confined to Physical obstruction alone. It
may mean show to force a thread which will induce a person to change his course. For
instance, threatens to set a dog at Z if that goes along a path by which that has a right to
go the dogs not really Savage, but a causes that to think, so that gives up the attempt the
offence of wrongful restraint has been committed.

6.) Wrongful Confinement-

• If we wrongfully restrain any person in such a manner as to prevent that person from
proceeding beyond the certain circumscribing limit is set to can find that person
wrongfully. Wrongful confinement implies total restaurant, not a partial one. If a man
nearly obstructs the passage of another in a particular direction, leaving him at liberty to
stay where he is hard to go in any order, there is no wrongful confinement.

• To substantiate thecharge of wrongful confinement, proof of actual physical restriction is

not essential. It is sufficient if such evidence shows that such an impression was
produced on the mind of the victim as to create a reasonable apprehension in his or her
mind that he or she was not free to depart and that he or she would be forthwith seized
or restrained if he or she attempted to do so. The period of confinement is immaterial
except with referenceto punishment.
1.) Criminal Conspiracy -
• When two or more person agree to do or causes to be done an illegal act or an act which is
not illegal, by illegal means such an agreement is designated as a criminal conspiracy.

• Thus to constitute the offence of criminal conspiracy, there must be an agreement of

two or more person to do an act which is illegal for which is to be done by illegal means and
one person can never be held guilty of criminal conspiracy for the simple reason that one
cannotfire with oneself.

• The two or more persons agreeing must be natural persons so that there could be an
agreement between two or more minds. Thus, a director of a company cannot be convicted
of conspiracy with the company even though the company is a separate entity in law.

• In English law husband and wife are the only parties to a conspiracy that cannot be
indicated for conspiracy because legally they are deemed to be one person however in
Indiahusband and wife can be held liable for conspiracy.

2.) Culpable Homicide -

• Whoever causes death by doing an act with the intention of causing death or with the
intention of causing such bodily injury as likely to cause death or with the knowledge
thathe is likely by such act to cause death committed the offence of culpable homicide.

• The intention is one of the important ingredients for culpable homicide. Thus, intention is
the purpose is designed with which the act is done. The death of the deceased should be
connected with the act of the accused, and the connection should be direct and distinct in
order to hold a person responsible for culpable homicide.

• Ifthe nature of the connection between the act and the death is in itself of such a nature
that it is the direct consequence of the action of the concurrent causes or if the connection
is broken by the intervention of subsequent causes for the interval of time between the
death and the act is too long the above conditions are not fulfilled.

• Knowledge is the awareness of consequences and Supreme Court held that distinguish
between intention and knowledge and held that when the act is done by a person, it is
presumed that he must have been aware that certain specified harmful consequences
would or could follow but that knowledge is the bear awareness and is not the same thing
as the intention that such consequences should ensure.
• As compared to knowledge, intention requires something more than merely for the sight
ofthe consequence, namely the full purpose doing of a thing to achieve a particular end.
3.) Murder -
• When any act is a cause with such an intention and with such intensity that the death is
the result in all probability, the offence would be called Murder.

• Inthe scheme of criminal law, culpable homicide is genus and Murder is its species. All
Murder is a culpable homicide but not vice versa. Speaking generally culpable homicide
includes special characteristics of Murder and is called culpable homicide not amounting to
Murder.

• Forthe purpose of fixing punishment proportionate to the gravity of the generic offence,
IPC practically recognizes three degrees of culpable homicide that is the culpable
homicide of gravest kind, culpable homicide which is punishable under Section 304 and
culpable homicide punishable under the second part of Section 304.

• The academic distinction between Murder and culpable homicide not amounting to
Murder always has to vex the coats. In Culpable homicide knowledge of the act is likely
to cause that should present but in Murder knowledge that the act is so imminently
dangerous that it must in all probability cause death or such bodily injury as likely to cause
death and without any risk of causing the death of such injuries as mentioned above should
important.

4.) 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 took
reality or harassment for in connection with any demand for the dowry, the court shall
presume that such person had caused the dowry death.

• For the purpose of this section, dowry that shall have the same meaning as in section 304
B of IPC. Therefore a conjoint reading of Section 113 and 304 B of IPC shows that there
must be a material to show that soon before had that the victim was subjected to cruelty or
harassment. The prosecution has to rule out the possibility of natural or accidental death as
to bring it within the purview of death occurring otherwise than normal circumstances.

• Soon before is a relative term and it would depend upon circumstances of each case and
no straight jacket formula can be laid down as to what would constitute a period soon
before the occurrence. No definite period has been indicated, and expression soon before is
not defined.

• Itis, however, suffice to say that the expression soon before would normally be implied
that the interval should not too much between concerned cruelty or harassment and the
death in question.
5.) Rape -
• The definition of rape has been defined under section 375 of the Indian Penal Code. If any
person found guilty under section 375 would be liable for punishment for rape under
section376 of IPC.
• If the death is the
result after the act of rape is completed and the injury which causes the
death of the women 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 20 years but
which may extend to imprisonment for life, with shelving imprisonment for the remainder
ofthe persons in natural life or with death.

• Corroboration in cases of death is not important except in the rarest of the rare cases.
Thiswas held by justice society in one of the landmark judgment by the Supreme Court.

***********************************************************
(PUNISHMENT, DEATH PENALTY, CAPITAL PUNISHMENT, PRINCIPLE FOLLOWED BY
COURTSFOR PUNISHMENTS)

Punishment -

There are five different kinds of punishment awarded by the Indian Penal Code, 1860
under Section 53 and they are death life imprisonment simple or rigorous imprisonment
fine and forfeiture of property.

A society has evolved the form of punishment has also changed with it. Earlier the soul
object for furnishing and eloquent was retributions that is the only complaints from him
the wrong he has committed or in other words because he deserves to be admonished.

Retribution is revenge for injury that is to say in earlier times certain punishments Khud
administer extreme brutality. However such punishment and no more a part of the
contemporary criminal legal system as they violate humanitarian grounds. .

Capital Punishment –

it is the punishment where the accused is executed to death after he has been found to be
guilty of a criminal offence in accordance to the appropriate legal process. The imposition
of death penalty is debatable topic and agitated in a lot of nations currently.

Imprisonment-

This is a punishment where in the accused is confined in a penitentiary. Imprisonment was

barely known during the primitive age and became a major part of the legal system only in
the 19th Century and 20th century. The farmers of the Indian Penal Code even envisaged
two kind of imprisonment that is rigorous and simple.
Forfeiture of Property-

Forfeiture of property has been provided by IPC and it was even prevalent in ancient India.
However IPC repealed section 61 and 62 which imposed the punishment awarding for
forfeiture of property.
Section 126 - Committing degradation on on territories of power at peace with the
Government of India.

Section 127 - Receiving property taken by war or depredation mentioned in section Sec
125 and Section 126 of IPC.

Contemporary Penal System-

Currently the Indian criminal system has witnessed a change in their Outlook with respect
to Pinal policy and this is evident in certain statuary provisions those are Juvenile justice
Act 2008 the abolition of whipping act probation of offenders act section 27 of criminal
procedure code and repeal of criminal tribes act that Reform is inevitable of the following
facts -

• The system of punishment cannot be entirely based on the nature or wrong

committed but must be variable depending on the character of the offender.
Two completely different kinds of offenders could have committed the same kind of
crime and hence punishment must be conditioned to suit different categories of
offenders.

• The idea behind punishment must not only be Retribution but also to prevent the
offence being committed in times to come. Therefore the formation in punishment is
advisable when the earlier punishment could not retain the occurrence of the same.

• It is the punishment wherein the accused is executed to death after he has been
found to be guilty of a criminal offence in accordance to the appropriate legal
process. The imposition of the death penalty is debatable topic and is adjective in a
lot of nations currently. However in land has retained in is its legal system to reduce
the following cases:

Death Penalty -

In contemporary India, no death sentence are only reserved for the rarest of rare case
however there is no guidelines structure to define the nearest of rare cases,
Further the 35th Law Commission report said having regard however to the conditions in
India to the variety of the social upbringing of its inhabitants to the disparity in the level of
morality and education in the country to the vastness of its area to the diversity of its
population and to the Paramount need for maintaining law and order in the country at the
present temperature India cannot resist the experiment of abolition of capital
punishment. The human right commission of UN adopted a resolution demanding the
complete eradication of the death sentence as a punishment. However the apex court of
India has held that sentence constitutionally valid. Yet the
debate regarding the constitutionality of death penalty still continues and finally the apex
court in the case Bacchan Singh vs State of Punjab observed that that sentences can only be
awarded in the rarest of rare cases.

The ‘rarest of rare’ standard has at its core the conception of the death penalty as a
sentence that is unique in its absolute denunciation of life. As part of its concerns for
human life and human dignity, and its recognition of the complete irrevocability of this
punishment, the Court devised one of the most demanding and compelling standards in the
law of crimes. The emergence of the ‘rarest of rare’ dictum when the “alternative option is
unquestionably foreclosed”32 was very much the beginning of constitutional regulation of
death penalty in India

Apex court in the case Macchhi Singh versus State of Punjab expanded the finding laid
down in Bacchan Singh. Hereunder, are certain observations made by the court -

Death sentence can only be awarded in case of gravest of culpability. Circumstances of the
offender must be taken into consideration before pronouncing a death sentence. Death
sentence can only be imposed when awarding life imprisonment does seem to be adequate
for the crime committed by the offender.
 DEATH
PENALTY
Death penalty has always been a topic for debate among the scholars. Some feel it is the
only way of removing unnecessary elements and to prevent further crimes in the society,
while others believe thatdeath penalty should be abolished in light of human rights.
Death penalty, as the name suggests implies taking away of human life through process
established by law. However, death penalty is an extremely rare phenomenon and is
awarded in rarest of rare cases. In India, IPC provides for death penalty in crimes
(which will be discussed later). The most recent execution was that of perpetrators of
Nirbhaya rape case.
Background:
The two methods of death penalty prevalent are hanging and by shooting. According to
the Criminal Procedure Code, hanging is to be used as a method of execution because it
is considered to be less painful. However, according to the Army Act, 1950, both mehods
i.e. shooting and hanging are permissible methods for execution in the court martial
system.
According to a 2016 study conducted by NLUD, till date 755 people have been hanged
after we gained independence. Some of the prominent executions include Memon
(2015), Muhammad Afzal (2013), Ajmal Qasab (2013). This signifies that the death
sentence has been provided for in rarest of rare cases and where the offence was of
extremely severe nature.
Death penalty has also been suggested by various statutes. In CrPC, 1898, default
punishment for murder was death penalty. However in 1973, when the CrPC was
amended, life imprisonment became the norm and death penalty was to be awarded in
rarest of rare case. This signified a desire to limit the imposition of death penalty in
India.
Law in India:
Under IPC and other statutes like Army Act, Assam Rifles Act, etc., offences punishable
by death include aggravated murder, other offences resulting in death, terrorism related
crimes, rape, kidnapping, drug trafficking, treason, espionage and military offences.
However, in 2012, SC in the light of Bacchan Singh case ruled that death penalty can be
awarded for murder or crime resulting in death only in the rarest of rare cases.
Further, after the Nirbhaya case, SC amended the law in 2013 to make it more stringent
by adding new categories of offences regarding violence against women and minor girls.
Constitutionality of the Death penalty
This question has been raised time and again. The opponents of death penalty have
argued that even the criminals have right to life under Article 21 of the constitution of
India and thus it cannot be taken away. SC in the case of Mithu Singh v. State of Punjab
held that death penalty should not be made mandatory and if so, it would be
unconstitutional. While in other cases such as Bacchan Singh, the SC held that it is
constitutional.
But before the examination by SC, the 35th law commission submitted a report which
stressed that present conditions in India demand that the death penalty should be
retained. According to the report, India is a diverse country with numerous religions,
ethnicities, disparity in education and upbringing and therefore, it is of paramount
importance for maintaining law and order. To do so, there needs to
be strict punishments and thus India should abstain from taking favorable position to
abolish death penalty.
However, later, through various judicial interpretations and decisions, the stance on
capital punishment changed through the course of time
Remedies if a person has been sentenced to capital punishment
1. According to section 416 of CrPC, if a woman sentenced to death is pregnant, the
High Court ought to order the execution of the sentence to be postponed or
commute the sentence to life imprisonment if it deems fit.
2. According to SC, mental health illness is another mitigating factor that can spare a
person whohas been awarded capital punishment.
3. Mercy Petition: When a convict has been sentenced to death sentence, he can file
a mercy petition either to the President of India or the Governor of that particular
state. However, this does not guarantee that it will commute the sentence. It is the
sole discretion of President. However, as President has to act on aid and advice of
the council of ministers and the Governor has to act on aid and advice of state
council of ministers, this power indirectly rests with the PM/CM and his council of
ministers.
A convict can apply for mercy petition if he is sentenced to death by HC and
appeal is refused by SC or if he is sentenced to death by SC and he has exhausted
all his remedies i.e. review petition and curative petition. He can apply to
governor or President, as the case may be.
Such power to the President and the Governor of the respective states is given by
Article 72 and Article 161 respectively.
According to Article 72 of the constitution, the power to pardon – philosophy of
which is every civilized country recognizes and provides for pardoning power as
an act of grace and humanityin the course of law- lies with the President.
The Article also states that the President can also grant pardons, reprieves,
respite, or remission or to suspend, remit or commute the convict.
This mercy petition is reviewed by Ministry of Home Affairs, before going to
the President. Similar powers has been granted to the governor under Article
161.
However, if the President/Governor takes too long to respond to the mercy
petition, it can be a ground for commuting the death sentence to life
imprisonment. The same was reiterated by SC in the case of Shatrughan Chauhan
(2014). The SC, in the case of Epuru Sudhakar v. State of Andhra Pradesh also laid
down criterion under which, such discretion of President can be reviewed.
Rarest of Rare case
The doctrine of rarest of rare case was propounded in the case of Bacchan Singh v. State
of Punjab. There is no straight jacket formula to apply in the doctrine and is thus open to
judicial interpretations. But such interpretation must give due weightage to atrocity and
brutality with which crime has been committed, the enormity of the crime and also to the
mitigating factors such as age, mental condition,pregnancy etc.
Thus, the doctrine of rarest of rare case can be divided into 2 parts:
1. Aggravating circumstances
2. Mitigating circumstances
While the aggravating circumstances increases the chances of imposition of death
sentence, mitigating circumstances reduces the chances. The judge/bench has to take
both the circumstances into the consideration before it can arrive at a conclusion.

Law Commission Reports

1. 35th report (1967): This was the first time when law commission considered
the abolition of death sentence. India is a diverse country with numerous
religions, ethnicities, disparity in education and upbringing and therefore, it is of
paramount importance for maintaining law and order. To do so, there needs to
be strict punishments and thus India should abstain from taking favorable
position to abolish death penalty
2. 187th report (2003): In this report, law commission dealt with the issue of
capital punishment under the theme of “mode of execution of death sentence and
incidental matters”. The issue was taken by the law commission taking into
account the technological advancements, but did not answer whether capital
punishment should be abolished or not.
3. 262nd report (2015): The law commission in 2015 submitted the report on
death penalty in India. The commission took into account various aspects of
death penalty such as role of deterrence, victim justice, uniform applicability of
guidelines and suggested that death sentence should be abolished except in the
cases of terrorism. The commission held that death penalty does not serve the
goal of deterrence any more than life imprisonment and the criminal justice
system should not lose sight to restorative and rehabilitative aspects of justice. The
commission also highlighted that death penalty is vulnerable to errors due to
numerous reasons and safeguards such as mercy petition have failed to
safeguard the rights from such factors.
Landmark Cases
1. Rajendra Prasad v. State of UP: After the amendment to CrPC, there were
ambiguities concerning “special reasons” for providing death sentence. The SC
discussed the legal policy on sentencing and also discussed “special reasons” at
length. The court focused on the deterrence and reformative theory of criminal
law and thus departed from the retributive theory. The court held that the
“special reasons” provided in the code must not relate to the crime, but must
focus on the criminal.
2. Bacchan Singh v. State of Punjab: The constitutionality of death penalty was
challenged in this case. The primary challenge was that death penalty was
unnecessary, cruel, inhumane and degrading treatment and does not serve the
purpose of deterrence. Further, constitutional validity of section 302 of IPC and
Section 366(2) of CrPC was challenged on grounds of arbitrariness and that it is
whimsical. The SC did not buy this argument and affirmed the constitutionality of
death sentence and propounded the doctrine of rarest of rare case and held that
 death penalty can only be imposed in such rarest of rare cases. Further, the SC held
that ‘special reasons’ must pay due regard to both the crime and criminal to
determine if he will be sentenced to death. Weightage should also be given to
mitigating factors including mental health, age of the accused, pregnancy and
possibility of reformation.

3. Mithu v. State of Punjab: The court scrutinized section 303 of IPC, which
provides for death sentence for offenders serving life sentence. The SC held that
the original idea was to discourage the assaults by life prisoners on the prison
staff, but the language used by the
legislature has exceeded their intention. It was held that Section 303 violates the
right to equality and the right to life and personal liberty conferred to everyone
under Article 14 and 21 respectively.
Prepare for CLAT and Other
Law Entrance Exams