Q.1 CRIME AND ITS NATURE .

UNIT 1

ANS; INTRO: An action committed or omitted, which constitutes an offence and is punishable by law is
a crime. Crime is an unlawful act that is forbidden and punished by the State or the law. In other words,
anything which is injurious to public welfare is a crime.

Generally speaking, crime is human conduct that the society generally disapproves. But in the modern
sense, crime is any act that is prohibited by the penal law in force, and the result of this is punishment.

Essential Elements of Crime

The main elements that make up a crime are:

1. A human being

2. Evil intent or guilty mind from the part of a human being. (Mens rea)

3. Any act committed or omitted in accordance with the evil intent and is forbidden by law. (Actus
reus)

4. Injury

1. Human Being

The first element of a crime is a human being. Any wrongful act to be called crime must be done by a
human being. There must be a human being under a legal obligation to act in a particular way, and it
must also be capable of being punished.

2. Mens Rea

The second essential element of a crime is mens rea or guilty mind or evil intent. Mens rea refers to the
mental element that is necessary for a particular crime. Any wrongful act committed by a human being
cannot be called a crime if committed without evil intent. There must be an evil intent while doing an
act.

There is a well-known maxim– ‘Actus non facit reum nisi mens sit rea‘. It means ‘the act itself does not
make a man guilty unless his intentions were so.’ From this maxim there came another maxim- ‘actus
me invito factus non est mens actus’ which means ‘an act done by me against my will is not my act at
all.’

3. Actus Reus

The third element of the crime is actus reus. The criminal intent to be punishable must be obvious in
some voluntary act or omission. As per Kenny, ‘actus reus’ is such a result of human conduct as the law
seeks to prevent. The act committed must be the one that is forbidden or is punished by the law.
An act includes omissions also. A man is also held liable if some duty is imposed upon him by law, and he
omits to discharge that duty. An omission must be a breach of a legal duty.

4. Injury

Injury is the last important, or we can say the essential element of a crime. It must be caused illegally to
another human being or a body of individuals or society at large. ‘Injury’ has been defined in section 44
of the Indian Penal Code as ‘any harm whatever illegally caused to any person in body, mind, reputation
or property.’

However, there can be some crimes that may not cause any injury to anybody. For example, if you
drive a vehicle without a driving license, it is a crime, even if it does not cause any injury to someone.

Definition of Crime According to Renowned Jurists

Definitions of Crime

At first, Crime was defined as- An act or omission of an act that is prohibited and punishable by the
federal statutes. Four essential conditions or an act or omission to be considered as crime are:

• The act is considered wrong by the society,

• the act causes harm to the society in general or to those in need of protection,

• The harm is serious and the remedy must be dealt by the criminal justice system.

A crime may be an act of disobedience to such a law forbidding it or commanding it. But then,
sometimes, disobedience of law may not be a crime, for instance disobedience of civil laws. Therefore,
crime would mean something more than mere disobedience of law[2].

A crime is a deemed by law to be harmful to society in general, even though its immediate victim is an
individual. In case of murder, it injures a particular victim but its disregard of human life results in
putting it beyond the matter of mere compensation between the murder and the victim’s family. Those
who act in such a manner are preceded against by the state in order that, if convicted, they may be
punished.[3]If the punishing of a wrongdoer is the remedy given and enforced by the prosecution at the
suit of the crown, the wrong so addresses is crime or criminal in nature.[4]

• According to Bentham, “offences are whatever the legislature has prohibited for good or for bad
reasons.”

• According to Austin, “a wrong which is pursued at the discretion of the injured party and his
representatives is a civil injury; a wrong which is pursued by the sovereign or his subordinates is
a crime.”
 • According to Paul W. Tappen, “an intentional act or omission in the violation of criminal law,
without justification and sanctioned by the law as felony or misdemeanour.”

• Blackstone has defined crime in his “Commentaries on The Laws of England”. He defined it as
“an act committed or omitted in violation of a public law either forbidding or commanding it.”
He also defined crime as “violation of the public rights and duties due to the whole community,
considered as a community, in its social aggregate capacity”. The editor of Blackstone, Stephen,
has done slight changes in the definition and presented it as “a crime is a violation of a right,
considered in reference to the evil tendency of such violation as regards the community at
large.”

• According to Stephen, “crime is an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society.”

• According to Kenny, “crimes are wrongs whose sanction is punitive and is in no way remissible
by any private person; but is remissible by crown alone, if remissible at law.” (Here, the word
‘sanction’ means punishment and the word ‘remissible’ means to pardon by a crown.)

• According to Keeton, “a crime would seem to be any undesirable act which the State finds it
most convenient to correct by the institution of proceedings for the infliction of a penalty,
instead of leaving the remedy to the discretion of some inured person.”

• According to Miller, crime is “to be the commission or omission of an act which the law forbids
or commands under pain of a punishment to be imposed by the State by a proceeding in its own
name.”

NATURE OF CRIME: UNIT 1

In ancient time any act by a person or even an animal which caused harm to any other person was
considered as punishable crime. The punishments at earlier times were way different that it is now. The
wrongdoers were beheaded or thrown out of the country as per their acts. To punish animals, stones
were thrown at them. Crime is a changing concept dependent upon the social development of people
that is upon the fundamental interest and values dominating their common beliefs. But as the time
passed by and humans started to regularise themselves the Nature and Definition of crime became
clearer.

The nature of crime is changing due to the changes in the society and the environment. Today one
cannot view crime with a single perspective alone. Two of the common views that explain the nature of
crime are its condition as being a social construct and being an individual criminality.

Role of Government and Society

Development of crime can largely be due to the role of laws and the government itself in the society.
The punishment when a crime takes place is left on the hands of the government. The government is
guided by policies and rules that have been promulgated to protect the welfare of the majority or the
greater good.

Very Often crimes are creation of government policies and the government in power forbids a man to
bring about results which are against its policies. The very definition of crime depends upon the values
of a given society.[1]

There is a division created by the morals that tends the government to make rules which outlaws certain
acts which wouldn’t have been a crime otherwise. For instance, the non-violent drug offences are
considered as crimes because it is declared by the government. Indeed it wouldn’t be a crime the
government didn’t categorise drugs something as illegal. In such context people turn as ‘moral
entrepreneurs’. By believing that drugs are evil, or adultery is bad or even bigamy is evil, they try to
convince their society’s authority to make violating their mores a crime.

Also in this form of government construction of crime, public play an important role in the prohibition or
in the process of making something illegal. For terms of Sec. 377 of IPC were decriminalised due to the
changing in the minds of the public in general and all the people it was effecting. Also like the
prohibition of alcohol drinking or smoking at certain places, the coalition of the public is necessary.

Are crime and tort complementary UNIT 1

Ans: What is the Law of Torts?

Sir John Salmond explains torts as “Torts as civil wrong for which the remedy is common law
action for unliquidated damages, and which is not exclusively the breach of contract or the
breach of trust or other merely equitable obligation”.

According to Austin “A wrong which is pursued at the discretion of the injured party and his
representatives is a civil injury”
In simple words what constitutes torts is, when there is a wrongful act and that was the result
of the breach of duty of care and that breach has caused damage to a person which he legally
entitled to and has a remedy in a court of law, it results in torts.

The new emerging definition is simply that it is a civil wrong where a person can sue another
without any pre-existing relation which is in the case in Law of contracts and person can himself
and not the state which is the case in Criminal Law, where one is relying on the state or its
authorities for suing another person.

In simple words what constitutes torts is, when there is a wrongful act and that was the result
of the breach of duty of care and that breach has caused damage to a person which he legally
entitled to and has a remedy in a court of law, it results in torts.

The new emerging definition is simply that it is a civil wrong where a person can sue another
without any pre-existing relation which is in the case in Law of contracts and person can himself
and not the state which is the case in Criminal Law, where one is relying on the state or its
authorities for suing another person.

What constitutes the law of torts?

From the above definition the important elements of Torts can be highlighted as:

1. Wrongful Act: The first and foremost element to establish torts is that there is a
wrongful act which was done by the defendant, it can be either active commission of act
or silent omission of act which was supposed to be done and that has resulted in breach
of duty which is either fixed by law or was to be done due to special position that a
person holds. The wrongful act is supposed to be omission or commission of an act
which a reasonable and prudent person would have or would not have done.

2. Legal Damage: The second ingredient to constitute torts is legal damage that is the
result of the wrongful act done in the first place. Legal damage is the result of any
breach of a legal right which the plaintiff needs to prove.

3. Legal remedy: The last ingredient to constitute torts is a legal remedy available in the
court of law, the damage that has caused must have a remedy and the court can take
action and provide with unliquidated damages.

What is the Law of crime?

Austin defines crime as “A wrong which is pursued by the sovereign or his subordinates is a
crime”.
In other words, crime is wrong in which the state will sue the wrongdoer because the state had
forbidden the acts and when done are punishable by the court.

In a more lucid manner crime is a violation of the law, which is laid down by the authorities and
when such laws are violated by the individual the person is taken to the task by the state. These
laws are provided by the government in various statutes and acts passed by the government.

This is not the case with torts law where the rights are recognized by the government and have
derived through various case laws and precedents. There is no list or act that specifically
mentions these rights but are generally accepted by the government and society and are
enforced by the courts.

What constitutes the law of crime?

The important ingredients are Mens Rea and Actus Reus:

1.Mens Rea: This is the mental element of a crime, one should form the intent to commit the
crime, mere accident or negligence don’t usually constitute a crime. If the person didn’t have
the intent to commit the act but it results in wrongdoing, then there are chances that person
won’t be guilty of that crime.

2.Actus Reus: This is the actual commission of the crime, once the intention is formed and the
person acts according to his intent and actually does an act that constitutes Actus Reus and
results in the commission of the crime. If there is only intention to commit the crime but no
action in furtherance of this would lead to a non-commission of crime.

Either Mens Rea or Actus Reus independently will not result in the commission of the crime.
These need to be both presents at the time of action for the commission of the crime.

From the following definitions and explanations, we can form these differences:

Who can sue and who can be sued?

In torts law, it is an individual who will come to the court for seeking remedy for breach of the
right because these are a breach of individual rights and it doesn’t affect society at large. It
violates the right in persona i.e. violates the right of an individual person.

Illustrations: Mike and Louis were neighbours. Mike used to make a lot of sound pollution due
to the loud music he used to play. In this case, it is Louis who can go to court for breach of his
right to peaceful enjoyment of his property. The state will not interfere in this neighbourhood
feud.
In torts law both the individual and state or corporation can be sued, because these rights can
be violated by anyone and all can be liable to pay damages to the person entitled to it.

Illustrations: Pearson Hardman is a corporation which has unlawfully set a stage in the front
gate of Daniel causing false imprisonment of Daniel. Daniel can sue Pearson Hardman for
wrongful imprisonment as a corporation.

However, in criminal law, it is the state that will go to court for the commission of the crime,
because the criminal tends to affect the society at large, so it is the responsibility of the state to
take the matter in its hand and its consequences have a large role to play in society. It violates
the right in rem i.e. violates the right of public at large.

Illustrations: Harvey and Louis were enemies. One day Louis murdered Harvey, then the
prosecution will be taken by the state, not by representatives of Harvey.

In criminal law, only the individual can be liable because only individuals have the capacity to
commit the nature of act constituting a crime and the only individual are guilty under the law of
crime because only in person these can be sentenced to jail or given capital punishment.

No corporation or state can commit these crimes as these crimes are of personal nature and
require human involvement and mental intent to commit the crime. State and corporation
can’t form this intent to commit the crime hence these can never be liable for these crimes.

What is the remedy in the Law of Torts and Law of crimes?

The remedy in tort law is the compensation in the form of unliquidated damages which are
given to the plaintiff to put the plaintiff in the same position in which he used to be before the
damages and are paid by the wrongdoer who has caused damages. The compensation in the
form of unliquidated damages is measured on the basis of the individual case and wrongful loss
and damages caused to a particular person.

But in criminal law, when the person convicted, he is awarded punishment. The objective is to
make deterrence from further committing the crime which is in the best interest of the society.
The quantum of punishment is measured by the nature of the act and punishment given in
various codes and statutes.

Another important matter is one can mitigate his right to go to court in case of breach of right
in torts law or waive his right for compensation however this is not the case for criminal act,
one cannot waive his right and the person will be punished no matter one wants to sue or not
for the best interest of the society and is prosecuted by the state.

On whom the burden of proof lies?

In torts law, the burden of proof is just of preponderance of evidence where it is to satisfy the
court of probability of chances of the commission of the act whereas in criminal law it is beyond
reasonable doubt, the threshold is much higher in criminal law than civil or torts law because
the stake in criminal law is the life of a particular person but in civil law stake is not that high, it
involves only damages.

The element of Mens Rea is not required to be proved in Torts law and doesn’t play any crucial
role in determining the fault and the act of wrongdoing would be tort even if there is no Mens
Rea. However, Mens Rea plays a major role in determining the guilt of the person.

What are the sources and developments?

The torts law has developed through various precedent and there is no Act or statute in India
for the law of torts and major developments have been through court judgement and
precedent is the most important source of torts law.

Though there are precedents in criminal law too but there are statutes and Acts that govern
most part of the law. The court decisions are based on these statutes and Acts and act as a
catalyst in the justice delivery system.

It is no wonder that suit for Torts would be in civil court and that for the law of crime in criminal
law.

What is the Reason for differences?

These differences are due to the nature of the act. The tort law applies when there is a breach
of a person’s individual rights, but these are less damaging to society and can be results of
accident or negligence. Due to these features’ damages are awarded to restore the loss caused
to these acts and no further action is taken to cause deterrence.

However, in criminal law, these acts are so grave and dangerous in nature that affects society at
large. Due to these factors, they are not mitigating in nature further to cause deterrence in the
society these people are awarded imprisonment which is in the best interest of the society.

The similarity between Crime and Torts?

It is not true that the Law of Torts and crime are different sports altogether, there are many
similarities in both of them and are different players of the same sports.

First, they both are the resulting breach of particular persons’ right, one cannot have an action
in either torts law or criminal law if there is no breach of any right.
Second, to enforce these rights, judiciary plays an important role in both criminal and torts law.
One cannot enforce these rights on his own and need to take a judicial course to enforce these
rights.

There are many wrongs which are covered under both civil and criminal wrongs like nuisance or
fraud which are wrong under both torts and is a crime under criminal law.

Both the laws overlap each other, such as there are many wrongs in criminal law which don’t
require intention but can be convicted without Mens Rea in the first place. Example of such
crime is strict liability crime which is punishable without any fault or intent of the person.

Similar is the case of Torts law, there are many wrongs which require an intention to be proved
in order to constitute torts. Example of such wrong is Conversion, Trespass, Assault, Battery,
fraud. Though these come under the purview of torts, they all require intention in order to
prove them as wrong.

Conclusion

With the following differences, we can conclude that the difference between both the laws is
due to their nature and objective that both laws want to achieve, that changes the perspective
and scope of both the laws. However, both laws are not completely different in watershed
compartments. Amidst the differences, there are many similarities that widen the scope of the
laws. Though these laws are different, both have the same objective to make harmony and
make law and order in society.

Both the laws have evolved over time according to the needs of society and are continuously
changing in their fields and are helping to survive in the need of the hour.

Elements of crime and theories of criminal liability UNIT 1

ANS: Crime is an act or omission of an act which causes harm to the society as a whole and
causes disturbance and panic in the society. Such an act is punishable by the criminal laws.
Criminal law came exists due to the presence of crime in a country. It provides provisions and
rules regarding the criminal activities that take place. Criminal law prescribes definitions of
crimes and the punishments relating to it. Generally most legal systems impose criminal liability
only when a person performs a prohibited act or incur a forbidden injury with a guilty state of
mind. For an act to be declared as criminal there are certain steps that are examined whether
they are present or not. The facts that must be ascertained in order to prove criminal Liability
are called The Elements of Crime.
There are mainly four elements of crime namely: human being, Mens rea, Actus Reus and injury
caused.

1. Human being: The first and foremost element of crime is that the injury must be caused by a
human being. Only a human can be made legally bound to act in a judicially appropriate way as
laws are only applicable to human. Under Sec. 11 of Indian Penal Code the word person include
artificial or judicial person hence they are punishable as well. Animals used to be punished in
ancient times now their owners are made liable.

2. Mens Rea: Mens Rea is the most important element to prove a crime has taken place. It
means it was the intention of the wrongdoer to purposely/knowing/willing and with proper
planning to cause harm to a person, animal or property.

3. Actus reus: It is the guilty Act that follows the guilty intention. An act will only be called a
crime if both the elements are present. The guilty intention of person leads them to act in
accordance to it and hence it turns into crime.

4. Injury: for a particular crime to take place it necessary for the injury to occur. After having
guilty mind and doing the guilty act if the injury does not occur then that crime is not
considered as committed.

Mens Rea

It is derived from the maxim “actus reus non facit reum nisi mens sit reas” which means “that
an act is not guilty unless the mind is not guilty”[1]. The mens rea means some blame worthy
mental condition, whether constituted by knowledge or intention or otherwise.[2] It is almost
always necessary to prove Mens Rea. It is to be proven that the person accused really had the
intention to cause such harm to the other person property and also knows about the
consequences of his action. Exception to Mens rea is the “Strict Liability offences” in which
punishments are provided even when the act is done without a guilt intention.

Motive is the reason for which the crime, but the law is more concerned with the intention of
the accused. Mens Rea can be different in various crime for instance in murder the Mens Rea
in the intention to incur a forbidden result that is to kill the other person whereas in assault
cases it is to provide serious bodily harm. In civil law it is not always necessary to prove the
mental element. It was held by the SC that Mens Rea is not an essential ingredient for
contravention of the provision of a civil act.[3]In few cases such as tort the punishment may
increase the scope of liability. Unless a statute clearly or be necessary implication rules out
mens rea as a constituent part of the crime, a person should not be found guilty against the
criminal law unless he has got a guilty mind.[4]
Actus reus

It is derived from the same maxim and it means the guilty action that follows the guilty mind.
Actus Reus is related to the actual work and action that is required for the completion of the
crime. Only thinking about killing someone is not murder until action is taken in order to kill the
other person. The action alone also cannot be considered as crime. Both mens rea and actus
reus works hand in hand. A crime can only take place where both these elements are
simultaneously present. In order to find whether these elements are present or not the facts
and circumstances of the case is also taken into consideration that what was the intention
behind the actions of the accused.

What is intent?

It is the true reason behind a person’s action. It refers to the facts on which a reasonable
person acts in any given circumstances. In case of a criminal case, the intent to commit that
crime means that the person knew what he was doing is wrong and still did it knowing that the
consequences of his actions is futile. It is should not be confused with motive. Intent is the state
of mind of the person while doing that crime whereas motive is the reason behind the act.

Exceptions

In Indian criminal Law, it is considered that certain section of people is not capable of having a
guilty intention even if they have committed a prohibited act. And hence lack of guilty intention
makes the action not a crime and can be excused. This category includes- person of unsound
mind, minor and a person under whose while committing the action was under the influence of
alcohol/drugs. These also come under the Chapter –IV ‘General Exceptions’ in IPC including
section 76-106. In detail these defences can be classified as:-

1. Insanity: when a person is legally insane and they don’t know what they are doing and have
no idea of right or wrong.

2. Involuntary intoxication: Due to the involuntary intoxication when a person loses their
ability to distinguish between right or wrong and has does not know what they are doing.

3. Mistake of fact: when a person accidently act assuming that, for a fact, what they are doing
is right and does it in good faith. Unlike the mistake of fact the Ignorance of law is not
excusable.

4. Crime by a minor: a child of age less than 7 years is completely excusable of any crime. A
child who is less than 12 years of age and is not able to distinguish between right or wrong then
he is also excused.
Illustrations

1. X, a police officer, while in processes of calming down a mob fires his gun by which a person
Y is killed. Here the Actus Reus is present, that is the death of a person but there is no mens rea.
The X shot Y without any guilty motive. This situation does not embody all four elements of
crime and hence, can’t be termed as a crime.

2. M planned to kill N. He bought a knife in order to do. He made an attempt but failed to
actually kill N due to certain reasons. Here all the elements of crime excluding the element
injury occurred. Still it cannot be considered as the crime of murder because of the absence of
its one true element. It shall only be considered as an attempt.

Frequently Asked Questions (FAQs)

1. What are the basic elements of crime?

Elements of crime are the essentials or requirements that are needed to be fulfilled for a crime
to take place. For considering an act by a person as criminal the presence of these elements is
necessary. There are mainly four elements of crime namely- Human being, mens rea, actus reus
and injury.

Human: In a criminal activity it is necessary for the accused/ wrongdoer to be a human being. If
the wrongdoer is an object or an animal then it cannot be considered as crime.

Mens Rea: it is the guilty state of mind that precedes the action. It is very important element. In
criminal cases if mens rea is not present the action is not considered as crime. Hence, in
proceeding the defence tries to prove the absence of mens rea

Actus Reus: it is the guilty action that follows the guilty mind. It is like putting his thoughts into
action. This is the stage where crime becomes punishable. Just having a guilty intention doesn’t
constitute a crime, the action in pursuance of the intent is necessary.

Injury: if the action doesn’t succeed and the injury didn’t occur than also it is not a crime. For
example, attempt to murder is not the crime of murder; unless the person is actually killed the
wrongdoer cannot be punished for murder. Injury must occur for constitution of crime.

2. What is mens rea and actus reus?

Mens rea and Actus Reus are the elements derived from an ancient maxim which means- an act
is not guilty unless the mind is not guilty. Mens rea is the intent of committing an act that is
prohibited by the laws of land and Actus Reus is the action that is done following such intent.
Both of these elements of crime work simultaneously. The intention of committing a crime is
not sufficient unless it is followed by it actual actions regarding that intention. Also just the
action of crime without intention of doing it makes it excusable.

Both of these elements have their significance only in cases of criminal liability. In civil
obligation mens rea is not significant, the action is sufficient in itself to give rise to the liability.

3. How can mens rea impact a defence?

In IPC under chapter IV General Exceptions are enumerated which contains conditions when
the actions occurs but the person is not in a state that the can have any kid of guilty intention
to do it.

Basically in that chapter the section contains conditions in which a prohibited action has taken
place but the person doing it cannot possibly have mens Rea i.e., a guilty intent to commit such
crime. There are various conditions in which a person is not unable to have mens rea such as
when a person is-

a. Of unsound mind

b. Involuntarily intoxicated

c. Minor

d. Working in good faith

e. Bound by their occupation

f. Mistaken by facts etc.

The only trouble is to prove whether or not Mens Rea was present because it is tough to
estimate what actually goes on inside the mind of any person. If once proven criminal liability
does not arise and the person can be excused for such crime.

General principles of criminal liability: mens rea and actus reus, mens rea in statutory
offences, Joint And Constructive Liability

Maintenance of peace and order is essential in any society for human beings to live peacefully
and without fear of injury to their lives, limbs and property. This is possible only in States where
the penal law is effective and strong enough to deal with the violators of law. In fact, the
identity of a State depends on how effective it discharges its primary function of keeping peace
in the land by maintaining law and order. People in a State can afford to be without a highly
developed system of constitutional law, or property law, but they could ill afford to remain
without a system of penal law.

Criminal law is a branch of public law. It authorizes the infliction of State punishment. In the
criminal proceedings, State is a party as crime is not only a wrong against the individual but also
against the whole society. Criminal law is confined within very narrow limits, and can be applied
only to definite overt acts or omissions capable of being distinctly proved, which acts or
omissions inflict definite evils. Crime is what the State has, by an act of the Legislature,
definitely declared as punishable. In other words, there is no such thing as crime apart from
legislative recognition thereof.

THEORIES OF CRIME: UNIT1

Introduction: Corporations have a separate legal entity and they are treated as a separate
personality in law. And therefore, separate liability can be imposed on corporations from any
criminal liability which may be imposed on the individual members for any wrongdoing. The
legal maxim upon which the basic rule of criminal liability stands is “actus non facit reum nisi
mens sit rea means” which basically means that an act is not wrongful unless it is done with a
wrongful state of mind.

The companies are criminally liable only for the offences that happen during the course of
business operation and for which the company bears responsibility.

A corporation can be convicted for the violation of penal law in the courts which comes under
that particular court’s jurisdiction. A company can be involved in offences such as murder,
failure to ensure safety mechanism and any other offence of omission. A corporation cannot be
imprisoned and presumably cannot be held liable for rape. As intention does not play a role in
deciding cases against corporation therefore, it can be held liable for an offence which does not
involve any intention.

After the debate about the propriety of criminal punishing a corporate entity, the current rules
regarding corporate criminal liability came out. The major argument was that a corporate entity
lacks the required mens rea to commit a crime. According to the current rules, both the
corporation and its employees can be held liable for an offence by the corporation.

The criminal law regarding corporations is not only restricted to the Indian Penal Code but also
there are various statutes governing the same. However, the Supreme Court of India has
expressed the need to have proper laws related to corporate criminal liability in India. As of
now, India imposes strict and vicarious liability on a corporate and its officers who are
responsible for the management of the affairs of the company.

Legal Position in USA and England

• In the USA a corporate can be held liable for the acts done with intent. The Supreme
Court of the USA held that they find no valid reason in law and every reason in public
policy regarding making corporations criminally liable.

• In England “corporation is not indictable, but the particular members of it are.” A

corporation is civilly and criminally liable for the acts of persons authorized to and have
acted in a particular manner out of which the unlawful act has resulted. The courts in
England have emphatically rejected the notion that a body corporate could not commit
a criminal offence which was an outcome of an act of will needing a particular state of
mind.

• J Macnaghten: A body corporate is a person to whom there should be imputed the

attribute of a mind capable of knowing and forming an intention. A body corporate can
have the intent but not criminal intent.

• It can only know or form an intention through its human agents, but circumstances may
be such that the knowledge of the agent must be imputed to the body corporate.

• In the case of H.L Bolton (Engg) Co. Ltd v. T.J. Graham and Sons [1] it was held that
Company may in many ways be likened to a human body. They have a brain and nerve
centre which concludes what they do. They also have hands which accordance with the
centre.

• Some of the people in the Company are mere servants and agents who are nothing
more than hands to do the work and cannot be said to represent the mind or will.
Others are directors and managers who represent the directing mind and will of the
company, and control what they do.

• State of the mind of these managers is the state of mind of the company and is treated
by the law as such.

• In cases where the law requires personal fault as a condition for liability in tort, the fault
of the manager would be the personal fault of the company. Similarly, in the criminal
law in cases where the law requires guilty mind as the condition of the offence the guilty
mind of the managers or directors of the company will render them liable.
 • In the case of Tesco Supermarkets Ltd v. Nattrass [2], stating the criminal liability of
corporate, Lord Reid said, a living person has knowledge and intention, and he can act
negligently the corporation has none of them. A corporation must act through living
persons, though not always one or the same person. A person who acts is not speaking
or acting for the company. He is acting as the company and his mind which directs his
acts is the mind of the company.

• He is an embodiment of the company or, one could say, he hears and speaks through
the persona of the company, within his appropriate sphere, and his mind is the mind of
the company. If it is guilty mind then that is the guilt of the company. Any liability of the
company can be a statutory or vicarious liability.

• The criminal liability of a corporation would arise when an offence is committed in

relation to the business of the corporation by a person or body of persons in control of
its affairs. Mens rea is attributed to the principle of “alter ego” of the company.

• In Director of Public Prosecutors v. Kent and Sussex Contractors Ltd [3], MacNaghten J.
stated that a body corporate is a ‘person’ to whom there should be imputed to the
attribute of a mind capable of knowing and forming an intention. It can only know or
form an intention through its human agents, but circumstances may be such that the
knowledge of the agent must be imputed to the body corporate.

Legal Position in India

• In the case of Standard Chartered Bank v. Directorate of Enforcement [4], it was held
that the Company is liable to be prosecuted and punished for criminal offences. The
Supreme Court rejected the notion that the Company could avoid criminal prosecution
in cases where a custodial sentence is mandatory.

• There are offences in the Indian Penal Code which describe offences of serious nature
whereunder a corporate body also may be found guilty, and the punishment prescribed
is a mandatory custodial sentence. There are a series of other offences under various
statutes where the accused are also liable to be punished with custodial sentence and
fine.

• As the company cannot be sentenced to imprisonment, the Court cannot impose that
punishment, but when imprisonment and fine are prescribed punishment the court can
impose the punishment of fine which could be enforced against the Company.
 • As regards, company, the court can always impose a sentence of fine and a sentence of
imprisonment can be ignored as it is impossible to be carried out in respect of the
company.

• In the case of Anil Gupta v. Star India Pvt Limited [5], the Supreme Court the matter
was related to dishonour of cheque under Section 138 and 141 of the Negotiable
Instruments Act. The Supreme Court observed that the other categories of offences can
be brought under the touchstone of the vicarious liability.

• In Gunmanla Sales Private Limited v. Anu Mehta [6], the Supreme Court observed that
the vicarious liability contemplated in the Negotiable Instruments Act to ensure greater
transparency in commercial transactions. This object has to be kept in mind while
deciding on the hardships of a particular case.

• In Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd [7], the dispute was related to
deciding the liability of a corporate in dishonour of cheque. The Supreme Court
discussed the extent of vicarious liability in case of corporate. The company being a
juristic person is liable for the acts of others.

• In case of Iridium India Telecom Ltd v. Motorola Inc [8], the Supreme Court held that in
all jurisdictions across the world which are governed by the rule of Law Companies and
Corporate houses can no longer claim immunity from criminal prosecution on the
ground that they are not capable of possessing mens rea.

• In the case of Standard Chartered Bank v. Directorate of enforcement [9], the Supreme
Court laid down the view that a company can be held liable and be punished for criminal
offences. The case, although rejected the idea of earlier cases which held that a
corporation cannot commit criminal offences. The court also held that merely the
punishment for a crime is mandatory imprisonment and fine, the corporate cannot be
held free from it. Though the court held that the fact that a corporation can not be
imprisoned or hanged sets a limit on the criminal liability of the corporate. Therefore, a
corporate can only be prosecuted for crimes which involve fine.

Theories of Criminal Liability

Vicarious Liability

In vicarious liability, the accused is blamed for the offence of another. Vicarious liability is based
on the principle of Respondeat Superior which means let the master answer. General rule of
Law of torts where the employer can be held liable for all Acts of employees done in the course
of the employment. This doctrine is applicable in criminal law as well wherein corporate may be
held liable and punishment can be fine and seizure of the property. Though the application of
this doctrine has been criticized on the grounds that it ignores the company’s effort to prevent
illegal activity by an employee.

For vicarious liability, the act and intent of the employee must be imputed to the company and
the employee should act within the course of employment. The Supreme Court, referring
to Section 145 of the Negotiable instruments act, held that the person who is responsible for
the conduct of the business of the company and is in charge of the company can be held liable
for vicarious liability.

Identification Theory

It requires that corporations should take responsibility for the persons having decision making
authority for the policy of the corporation rather than the persons implementing such policies.
The theory focuses on the directing minds of the corporation and merges the individual and
corporate persons in order to assign criminal liability to the corporate. The theory focuses on
the fact that the intention and action of the company are the results of the employees of the
company.

The underlying principle of this theory is the detection of the guilty mind. Lord Denning has
identified that a company is linked to a human body and it had a brain which controls what it
does. The directors of the company control the will and the mind of the company. However, the
theory has been criticized for its limited application.

Sanctioning Theory

This theory requires the Imposition of fine on the company with respect to criminal liability.
However, the imposition of fine creates problems, mainly because it can be difficult to identify
which amount for the fine would be fair while punishing a corporate for criminal liabilities. The
monetary sanctions are widely used for imposing penalties on the corporations.

Direct Liability Doctrine

It seeks to imitate the imposition of criminal liability on human beings and relies on the notion
of personification of the legal body. This doctrine identifies the actions of certain individuals
within the company to act within the scope of their authority.

Conclusion

It is a well-settled principle in Criminal Law jurisprudence regarding criminal liability on

corporations. A corporation may commit a crime and held liable for a criminal offence.
However, the statues in India are not in pace with these developments and they don’t make
corporations criminally liable. Even if they do so the statutes and judicial interpretations impose
no other punishment except fine. Even the Supreme Court said that there is a need for separate
law making provision for infliction of criminal liability on the corporations.

Theories of causation of crime UNIT1

Introduction

A crime is an illegal act that is punished by a legal authority. A crime is an act that is harmful to
the person who commits the crime as well as to the society, community, or state. Crime is
caused due to various reasons that may force an individual to commit it to fulfill its needs.
There are some theories of causation of crime that we are going to discuss. First of all, we need
to know how crime has been caused and what are the reasons behind it.

Crime causation

Crime caution is a discouraging and multiplex field. For centuries, philosophers have reviewed
the meaning of the conception of cause as it regards human behavior. Growingly, research
advises that individuals are unaware of the causes of the other people’s behaviour as well as
the causes of much of their performance. Modern crimes cause models to favour an
interdisciplinary lens that recognizes how different fields complement, rather than contract
with, one another. This approach acknowledges that no single theory can explain all the types
of criminality nor the legal and moral issues that convoy them.

The entries that follow highlight this disciplinary among theories within five different kinds:

1. Biological theories

2. Economic theories

3. Psychological theories

4. Political theories

5. Sociological theories

Different theories

Biological theories

Criminal manners result from a complicated interaction of biological factors. The term
‘biological’ and genetic are often confused, in part since they represent the overlapping sources
of influence. Biological factors are more comprehensive, comprising physiological, biochemical,
neurological, and genetic factors. Genetic factors refer to biological, and hereditary factors.
Until recently, the bulk of criminological analysis focused only on social contributors, either
reducing or negating the significance of genetic and biological upon criminal manner. Within
the past fifteen years, however, an oversized body of proof has been collected that the etiology
of criminal behavior is also understood when genetic and biological factors are also taken under
consideration. Evidence for the role of genetic factors in the etiology of criminal manner carries
the belief that biological factors intermediate this relationship.

Economic theories

The roots of crime are several and a discipline like economics, predicated on rational behavior,
is also at something of an obstacle in explaining an irrational occurrence. Describing the worldly
trend in crime rates in most industrialized economies is the most difficult task. Many social
researchers argued that crime is closely connected with work, education, and penury and that
wagging, youth unemployment, and crime are the side-effects or even count of social exclusion.

Blue-collar criminals usually have limited education and limited labor marketplace ability. These
features describe the poor employment records and the low real earnings of most criminals.
These kinds of issues originally cause economists to analyze the relations between wages and
unemployment amount on crime. Most recently economists have also examined the benefits
and rates of educational programs to reduce crime. The reasons based on the economic model
of crime is a model of decision-making in dangerous situations. Economists analyze how
individual attitudes toward risk affect the extent of illegal behavior. A key feature is the idea of
convenience; judgments are made of the suitable gain to be noticed from a particular choice of
action.

Individuals are supposed to be rational decision-makers who are connected in either legal or
illegal activities as per the awaited utility from each activity. An individual’s participation in
illegal actions is, therefore, described by the opportunity rate of illegal activity, factors that
impact the returns to unlawful activity. Economic models of criminal manner have concentrated
on deterrent effects and the connectivity between work and crime. It could be argued that
unemployment is the channel through which other factors impact the crime rate.

Psychological theories

It is very hard to define distinctively psychological theories of crime. The psychological theories
especially concentrate on the importance of individual and family factors on offending.
Psychological theories are usually developed, trying to describe the evolution of offending from
childhood to adulthood, hence based on longitudinal education that follows up every individual
overtime. The importance of such theories is on continuity rather than discontinuity from
childhood to adulthood. A basic presumption is that the order of individuals on an underlying
construct such as illegal potential is relatively constant over time.

Psychologists inspect offending as a kind of behavior that is alike in many regards to unfriendly
behavior. Therefore, the theories, systems, and information about other types of unfriendly
behavior can be utilized to the study of crime. Lee Robins spread the theory that offending is
one of the elements of a giant sign of unfriendly behavior, including heavy drinking, drug-
taking, reckless driving, institutional problems, job problems, problems, etc.

Typically, psychological theories may include motivational, inhabiting, decision-making, and

learning processes. The foremost common and motivational thought is that individuals,
especially children are naturally self-indulgent, and selfish, seeking pleasure and ignoring pain,
and hence that children are naturally offensive. Another classical idea is that every individual is
motivated to take care of an optional level of arousal; if the amount falls below the optimum,
they are going to attempt to increase it, whereas if it’s above the optimum they will try to
decrease it.

Generally, psychologists are committed to the scientific study of human behavior, with its
emphasis on theories that can be tested and falsified using empirical, quantitative data,
collected experiments, systematic observation, valid and reliable measures, etc. The following
parts discuss the most important categories of risk factors that influence crime:

• Family impacts, like broken homes, poor child-rearing methods, and criminal parents.

• Individual impacts such as personality. The foremost important personality thinking

about relevance crime is abandoned, while the most influential theory of the link
between personality and crime is recommended by Hans Eysenck.

Political theories

It is given that any method of crime may be given to have an agreement with some political
philosophy, it reflects that any theory may be used for political objectives. During this general
sense, therefore, any orientation of crime is a political theory. And any type of crime may be of
political consequence. Certainly, radical criminologists have sometimes disputed that every
crime is political. And some theorists have offered explanations of crime that support
conservative or liberal political perspectives and agendas. An alternative conception of political
theories of crime caution is that which are identified by their accent on the social dispute and
government relations.
Although theories, which we have seen, might be utilized to form any of a crime, they didn’t
focus historically on solving individual criminal behavior, but rather have concentrated on
explanation variations in crime rates, and particularly on the different risks of being labeled as a
criminal. In so far because the criminal law policy is seen as a tool of political power or
repression, the politicization of all sins is intended. It has been infrequently held that political
sins are uniquely agreeable to display by labeling and dispute theories, but the counter-
argument is that any theory with an attachment to political philosophy is often invoked to
account for political criminality.

Given harmony between political beliefs and crime causation theories, it is going to be
suspected that the more explicitly political philosophy, the more likely it is to allocate political
significance to criminality. Theories having sympathy with conservation and radicalism appear
to be more reasonable than theories with sympathy to liberalism to clarify the crime and
criminals in political words, whether as threats to political resistance to the political violation.
Consequently, conservatives will find the diagnostics of political offenders, liberals will find that
political offenders are often normal but they misguided people who are responding to the
strains inflicted on them by weak social organizations, and extremists will find that political
offenders are reasoning people who recognize and maintain the suffocating and exploitative
nature of abundant democratic capitalist society.

Sociological theories

There are three important sociological theories: strain, social learning, and control theories.

Strain theory

According to the strain theory people get engaged in crime because they experience a lot of
stress or strain, they become upset and feel negativity around them, and they sometimes get
involved or connect with some crime as a result. They may be involved in crime to reduce their
stain which they are experiencing. For instance, for reducing their financial problems they may
steal, end harassment from others they may involve in violence, escape from abusive parents
they may run away from home or may commit injury to themselves. They may be also involved
in crime to take revenge against those who have done wrong to them. To make
himself/themselves feel better they may start using illicit drugs.

Social learning theory

According to social learning theory, people engage in crime because they learn to involve in
crime through their friends, and others. They learn that they are favorable to crime and get
exposed to criminal models. According to this theory, juveniles learn to involve in crime in the
same way as they learn through association with others. Primary groups like the family, friends,
and peer group have a large impact on what they learn. However, one does not have to be
directly linked with others to learn from them.

Most social learning theory involves the three mechanisms by which every individual learns to
involve in crime: differential reinforcement, modeling, and beliefs.

• Differential pillars of crime: People may guide others to get involved in crime through
the support and punishments they provide for behaviour. More probably, crime occurs
when there is:

o Frequently reinforced and infrequently punished,

o Reinforcement in large amount (for instance, a lot of money or social approval),

o More likely to be reinforced as the alternative behavior.

• Beliefs favorable to crime: Other people not only reinforce our crime, in fact, they also
teach us beliefs favorable to crime. Most individuals are taught that crime is bad or
wrong. They, at last, accept this belief, and they are less predicted to be captured in
crime as a result.

• The copying of criminal models: Behavior or manner is not a part of reinforcements and
punishments, and beliefs, and individuals receive, but also of the behaviour of those
who are around them. Particularly, every individual often models the behaviour of
others- especially when they like or respect others and have reason to believe that
copying thor behaviour or manner will result in reinforcement.

Control theory

Unlike the theorists of strain and social learning, control theorists take crime for granted. They
argued that every person has some needs and desires that can be easily fulfilled through the
crime as compared to legal channels. For instance, it is much easier to steal money instead of
doing work for it. Therefore, according to the control theorists, a special explanation is not
needed for crime; it is often the most convenient way to get whatever one wants.

Conclusion

In the above discussion, we study about crime causation, its various theories which tell us about
how crimes are caused in our society that cause damages to every person in society. These
theories help to know how every individual is engaged in crime and how they respond to the
social environment. The biological theory concentrates on the genetic, neurological,
psychological, and biochemical factors that influence a criminal manner. On the surface of
economic theory, crime appears unusual, predicated on the model of rational behaviour. The
economic model of crime that every individual chooses between criminal and legal manner
based on various factors. The psychological theory study in particular two factors one is family
influences, and another is individual influences. The political theory recognizes that any crime
may be connected with some political ideology and therefore may be used for some political
purpose. Similarly, sociological theory study about the three main theories- strain, social
learning, and control theory all these explain crime in terms of social environmental factors or
primary factors such as family, friends, community, etc.

What is the difference between ‘subjective’ and ‘objective’ mens rea? Why does the difference
matter?

The terms subjective and objective mens rea refer to two methods of assessing mens rea. Mens
rea simply means guilty mind and denotes fault or culpability of an offence. The state of mind is
verboten (explicit or implied) in the meaning of any offence. The main forms of mens rea are
intention, recklessness and negligence. Knowledge is sometimes regarded as a form of mens
rea as well, however, it is mostly considered to be equivalent to intention, in terms of
culpability. Therefore, when establishing mens rea the offence elements are classified as being
either subjective or objective requirements on D’s state of mind. In this essay, intention will be
the main focus of the offence elements used to differentiate subjective and objective mens rea
as it is the most serious standard of mens rea.[1]

In simple terms, subjective mens rea asks what was in the defendant’s mind. The term
subjective is used to indicate a mens rea requirement, which is, viewing internally to the mind
of D. For instance, intention can be assessed subjectively when the defendant intends a
consequence and if he acts intending to produce that consequence. Herring wrote that
depending on the offence element, a subjective state of mind would satisfy the following
questions: Did D intend the result? Did D realize, recognize, want, or aim to achieve the result?
Did D foresee the result?[2]

A case example to further explain this point is Moloney,[3] where the defendant killed his
stepfather by shooting him with a gun pointed at the step father while they were drunk. D’s
defence was that it was not his aim to kill his father, thus since his claim does not answer
positively to the intention question for the subjective test, the court decided that there was no
direct intention. However, intention could be deduced where the defendant foresaw the result
as a likely consequence of his conduct, this would satisfy the mens rea of recklessness. This
shows that to satisfy the subjective mens rea, the prosecution must prove that the defendant
intended the result or foresaw a risk of the natural consequence. It is not a matter of what D
should have thought of or what a reasonable person would have done instead.
While, the term objective is used to indicate a mens rea requirement that does not involve
eyeing internally into D’s mind but instead is detecting externally. In simple terms, objective
mens rea asks what would have been in the mind of a reasonable person. For example,
intention can be assessed objectively when D had an oblique intention to a particular crime.
Oblique intention refers to a situation where the object is almost but not quite certain, D
foresees it as virtually certain and then the jury may find intention.

In Woollin,[4] where D is charged with murder and the simple direction is for the jury to decide
if D intended to kill or cause bodily harm is not enough. Thus, the jury should be aware that
they are not allowed to find the necessary intention unless they believe that death or grievous
bodily harm was a virtual certainty as a consequence of D’s actions and that the consequence
was foreseen by D as a virtual certainty. The decision of whether the D intention was indirect
being one for the jury’s to reach on a consideration of all the evidence. Objective mens rea
expresses the conduct of the defendant as being lower than the standards of expected
behaviour from a reasonable person in that situation as well as the possibility of certainty for a
particular result to occur following the defendant’s act.

To satisfy the question, why does the difference between subjective and objective mens rea
matter? First and foremost, there is no mens rea definition in a criminal statute, thus the
prosecution uses case laws when dealing with new cases. This makes the law controversial
sometimes, thus clear and separate methods or forms of explaining mens rea is necessary. The
law needs to be comprehensive to make people understand clearly as one is criminally liable for
events or consequences which they intended or knowingly risked.

The subjective mens rea is essential in helping to prove people that have committed serious
crimes like murder are culpable. It is a simple way of making sure that people don’t get
convicted for unexpected or unplanned accidents. It deals with one’s state of mind while
performing the conduct and it’s a rather direct way of determining if the defendant is guilty of
the crime since once intent is found, the subjective mens rea has been satisfied.

The difference between the subjective and objective mens rea also matters because the
objective mens rea makes it harder for people to avoid being convicted of a crime by simply
saying they didn’t intend to perform such act. The objective mens rea digs deeper into the
extenuating circumstances as well as evidence surrounding the defendant at the time the act
was being performed.

Lastly, the dissimilarity also matters because it is used to assess blame and responsibility of
respective offences. Horder wrote that the principle of mens rea expresses blame and
responsibility by stating that defendants should be held criminally liable only for events or
consequences which they intended or knowingly risked[5]. The term knowingly risked explains
the objective mens rea in terms of the defendant’s foresight about the virtual consequence of
his conduct at the moment.

In conclusion, subjective mens rea questions what was in D’s mind while objective mens rea
questions what would have been in the mind of a reasonable person. Also, the difference
between these two matters because it helps give clarity to why or if D has committed a crime or
not.

Mens rea: UNIT 1

ANS: Mens rea is a legal term that generally refers to the guilty mental state, the lack of which
negates the crime situation on any given occasion. It’s one of the most important aspects of
criminal liability. Only when an act is done intentionally that is prohibited by law is it considered
a criminal offence. The intent, which is the driving force behind the illegal conduct, is referred
to as mens rea. Only when an act is committed with a guilty conscience does it become
criminal. In most cases, a crime is not committed if the individual committing the act has an
innocent mind. Before a person can be held criminally accountable, they must be in a
blameworthy state of mind. For example, inflicting injury on an aggressor in self-defence is not
illegal, but inflicting injury with the aim of exact revenge is illegal.

The familiar Latin maxim ‘actus non facit reum nisi mens sit rea’—the act does not render one
guilty unless the thought is also guilty—expresses the essential concept of the principle of mens
rea. At least in the case of the more severe crimes, simply committing a criminal act (or causing
the state of events that the law prohibits) is insufficient to constitute a crime. In most cases,
there must also be some element of improper intent or other misconduct.

How did Mens Rea develop

Mens Rea was not an ingredient of crime in the 12th century. Wrongdoers used to be punished
regardless of whether their actions were deliberate or not. Mens Rea was first proposed in the
17th century, coupled with the Latin phrase ‘actus reus non facit reum nisi mens sit rea,’ which
means ‘there can be no crime without a guilty mind.’ This maxim resolved the problem that a
crime can only be defined as an activity carried out with the purpose to commit a crime. Later,
during British rule, the element of Mens Rea was borrowed from English law and implemented
into Indian criminal laws. Lord Macaulay created a proposal of the Indian Penal Code in 1860,
which was passed on October 6, 1860. Though Mens Rea was originally part of English law, it
was introduced after it was modified and carefully arranged to suit the circumstances of British
India.
What is the concept of mens rea in Indian criminal law

Mens Rea has a very prominent usage in Indian criminal law. The reasons behind this are self-
evident. One of the key reasons is that in India, the entire criminal law has been codified, and
all of the offences have been properly specified. If mens rea is viewed as a precondition, it is
then incorporated into the definition of the crime and treated as a component of it. Many
definitions in the penal code demand that the crime is committed ‘voluntarily,’ ‘dishonestly,’
‘knowingly,’ ‘fraudulently,’ and so on. A fraudulent, dishonest, or negligent mind is hence the
guilty mind.

Furthermore, certain offences under the Indian penal code are defined without regard to mens
rea or purpose, such as crimes against the state, counterfeiting coinage, and so on.

In India, mens rea as a condition of penal liability works to such an extent that it is codified in
the General Exceptions (Sections 76 to 106) of the penal code, which stipulates all those
conditions in which mens rea appears to have been subordinated, and therefore no culpability.

What are the four types of mens rea

Purpose/intent

The term ‘intention’ is a difficult one to define. The Penal Code does not define it. It is a well-
known term that, at the same time, resists clear definition. It can refer to the object, purpose,
ultimate goal, or design of action in numerous ways. The intention is the deliberate use of a
person’s mental powers to do an action to achieve or satisfy a goal. As a result, the intention is
frequently employed in relation to the outcomes of an act rather than the act itself. If he wants
a consequence to follow from his conduct, he must state it explicitly.

The words ‘intention,’ ‘intentionally,’ or ‘with intent to’ are not usually used in law to represent
the concept of ‘intention.’ Words like ‘voluntarily’, ‘willfully’, ‘deliberately’, ‘deliberate
intention’, ‘with the purpose of’, or ‘knowingly’ are also used to represent it. All of these
numerous expressions can be found in the IPC’s various Sections.

• ‘Voluntarily’ is defined under Section 39 of the 1860 Act as follows:

Section 39 : Voluntarily — When a person causes an effect “voluntarily,” he does so by using

methods that he meant to use, or by using means that he knew or had reason to believe were
likely to cause it at the time he used them.

• Section 298 of IPC

By Section 298, the terms “deliberate intention” and “premeditated intention” refer to
premeditated intentions to damage religious feelings. However, on a first understanding of the
text, the terms ‘deliberate’ and ‘intent’ appear to be interchangeable.

Sections 285, 286, and 287 state deliberately or negligently omitting to take reasonable care so
as not to cause harm to human life in respect of possession of poisonous substance, fire,
inflammable matter, and explosive substances, an offence.

The defendants in Niranjan Singh v Jitendra Bhimraj (1990), sought to eliminate two people
named Raju and Keshav in order to acquire control of the underworld. They were accused of
committing a terrorist offence in violation of TADA. In this case, the Supreme Court determined
that the intention was evident based on the facts. However, it cannot be argued that their
purpose was to terrorise the general public or a subset of the general public. As a result, it
acquitted the accused in the lack of an intention to cause terror, even though the outcome of
their act was to cause terror.

Knowledge

The term ‘knowledge’ refers to a person’s awareness of his or her own thinking. When there is
a direct appeal to a person’s senses, he can be assumed to know. The awareness of the act’s
repercussions is known as knowledge. It is a person’s state of mind towards existent facts that
he has personally observed or whose existence has been transmitted to him by others whose
veracity he has no cause to dispute. The essence of knowledge is that it is subjective. In many
circumstances, though, intention and knowledge blur together and imply the same thing, and
intention can be inferred from knowledge. Although the border between knowledge and
intention is blurry, it is clear that they mean distinct things. Knowledge, in contrast to intention,
denotes a state of mental realisation in which the mind is a passive recipient of certain ideas or
impressions that arise in it, whereas intention denotes a conscious state of mind in which
mental faculties are summoned into action to achieve predetermined, predetermined
outcomes. Obviously, knowledge is predicated on a thorough understanding of the facts and
situations, as well as the consequences of one’s actions.

A person was prosecuted in Ranjit D Udeshi v State of Maharashtra (1964) for selling a popular
novel by DH Lawrence called Lady Chatterley’s Lover. The accused claimed that he had no
knowledge of the book’s contents and hence lacked the essential mens rea. The Court
dismissed this argument, holding that because Section 292 of the Code, unlike numerous other
provisions, does not include the words ‘knowingly,’ knowledge of obscenity is not an essential
element of the crime under Section 292 of the Code.

Recklessness
Recklessness is regarded as a person’s state of mind in which he foresees the prospective
repercussions of his actions but does not intend or seek to bring them about. A guy is said to be
reckless when it comes to the consequences of his actions if he foresees the possibility of them
happening but neither desires nor expects them to happen. It’s possible that the perpetrator is
unconcerned about the consequences, or that he doesn’t care. In all of these circumstances,
the offender is considered to be unconcerned about the consequences of his or her actions.

To put it another way, recklessness is a mental attitude of disregard to the apparent risk.
Driving at a high speed through a congested and small street is dangerous. The guy realises that
his actions may damage someone in the crowd, but is indifferent to this. Similarly, if A throws a
stone over a crowd without regard for whether it will damage anyone and the stone lands on
the head of one of the people in the crowd, A is guilty of recklessly causing injury.

The respondent was driving a car with a customer in the front seat in R v Reid (1978). While
remaining in the nearside lane, he tried to pass another vehicle. The rest stop for taxi drivers
protruded six feet onto the nearside lane. The defendant was found guilty of causing death
through reckless driving, in violation of Section 1 of the Road Traffic Act 1972. The risk must be
clear to a reasonably sensible person; however, the defendant does not have to be aware of it.

Negligence

Negligence is a legal term that refers to a lack of care and caution that a rational person would
have done in the given circumstances. Negligence is defined as failing to do something that a
prudent and reasonable person would do or doing something that a prudent and reasonable
person would not do based on the considerations that normally govern the conduct of human
affairs. It is a man’s state of mind when he pursues a path of action without considering the
repercussions.

A is liable for injuring a passer-by if, during a fight with his wife, A takes up a paperweight from
the table and throws it out the window, shattering the passer-skull. by’s A had neither
predicted nor contemplated injury to anyone when he threw the paperweight, yet he is liable
since he failed to do so.

Despite the fact that the court acknowledged that the defendant was exercising all the skill and
attention to be anticipated from a person with his limited experience, he was found guilty of
driving without due care and attention in McCrone v Riding (1938) as he had failed to meet the
necessary standard.

In contrast to torts, negligence is not the basis of liability in general in crimes. Only in a few
instances does the IPC, 1860 establish criminal liability based on negligence. For example, a
man is accountable for negligence if his actions endanger the lives of others, such as in the case
of rash and negligent driving, rash vessel navigation, negligent conveyance of individuals by
water for hire in an unsafe or overloaded vessel, and so on. It’s important to distinguish
between negligence and neglect. Neglect, unlike negligence, does not imply a particular state of
mind, but rather describes a fact that could be the outcome of either a deliberate or negligent
act. A man who knows his scooter’s brake is broken fails to repair it and crashes into a
youngster on the road. The injury to the child is caused by his intentional neglect or
recklessness in failing to repair the brake, rather than his negligence.

Whether mens rea is essential to say that an act is a crime

Despite the fact that the term “mens rea” does not appear in the IPC, its essence is reflected in
almost all of its provisions. In some form or another, every offence created under the IPC
virtually imports the concept of criminal intent or mens rea. In the end, Chapter IV on General
Exceptions enumerates the situations that appear irreconcilable with the existence of the
needed guilty mentality or mens rea, therefore absolving the perpetrators of criminal liability. A
crime committed by a person under the influence of alcohol or drugs, or by a child under the
age of seven, or by a mentally ill person, for example, does not constitute an offence since the
mental element, or mens rea, is lacking. Thus, the chapter on General Exceptions acknowledges
the common law doctrine of mens rea, although indirectly.

The Supreme Court declared in Ravule Hariprasada Rao v State (1951) that unless legislation
expressly or by essential inference excludes mens rea as a component ingredient of a crime, a
person should not be judged guilty of an offence unless he possessed a guilty mind at the time
of the conduct. It was reaffirmed by the Supreme Court in State of Maharashtra v Mayer Hans
George(1964), in which it was declared, among other things, that the common law notion of
mens rea does not apply to statutory offences in India. As a result, there is a presumption that
mens rea is a necessary component of a statutory offence.

It can be rebutted, however, by the exact words of the statute that created the offence or by
necessary inference. Following that, in Nathulal v State of Madhya Pradesh(1965) and Kartar
Singh v State of Punjab(1961), Justice K Subbarao, sitting for the Supreme Court, emphasised
that the element of mens rea must be read into statutory criminal provisions unless a statute
expressly or by necessary inference throws it out.

Concurrence of actus reus and mens rea

A criminal purpose must exist at the same time as a criminal act, according to the concept of
chronological concurrence. There must be a concurrence between the Mens rea and the actus
reus.
What happens if D possesses the mens rea for a certain crime at some point and then does an
act that meets the physical prerequisites for that crime, but the mental state was not present at
the time the act was committed? For instance, D stabs his victim with the intent of killing him,
but only wounds him, and then tosses the corpse into a river, believing the victim is dead. Is
drowning the true cause of death? You mistakenly grab someone’s umbrella from a restaurant,
discover it’s not yours after 5 minutes, and decide to keep it. Have you ever committed theft,
which is defined as the stealing of another person’s property with the aim to deprive him of it?
The following are the important points in this regard.

• The fact that he later acquired the requisite mental state is irrelevant.

• Concurrence must be with the act rather than the outcome.

• A change of mind will not make the crime go away.

• Concurrence can apply to any act that causes legal injury.

• The act must be caused by a mental condition. There are a few exceptions which include
insanity, involuntary intoxication, mistake of fact and Offence by a minor.

What happens if the D has the essential mens rea for one crime but his act fulfils the criteria for
another? For example, suppose D plans to perform a simple assault on his victim, but the victim
turns out to be a haemophiliac and bleeds to death unpredictably? At least in the case of crimes
characterised in terms of undesirable outcomes, there must be an agreement between the
mens rea and the adverse result. (For example, homicide, rape, and so on)

Thus, if the harm that really occurs is completely different from what the D intended, resulting
in a different, more heinous crime, the D will not be found guilty of the more serious crime. The
general idea is that if the actual injury is greater and connected to the desired result, there is no
liability for the greater harm. If the actual harm is less severe than that intended and of the
same broad nature but is related to a different and less serious crime, the D is accountable for
the less serious crime.

In Mohindar Singh vs The State (1959), the Court held that the offence is determined by the
existence of both mens rea and an actus reus. Both parts of the crime must be present, and
proof of guilty purpose without the overt Act, or proof of a deed not prompted by any criminal
intent, will not result in a conviction. The prosecution must prove both parts of the crime by
demonstrating that the accused did anything that, in law, would constitute an intention to
commit an offence and that in doing so, he was motivated by a desire to achieve a clear
objective, which constituted the specific crime.
In Fowler v. Padget(1798), the Court held that Actus reus and mens rea are both required for
the commission of a crime. Lord Kenyon stated, “Actus non facit reum nisi mens sit rea is a
tenet of natural justice and our law.” To be a crime, both the intent and the act must be
present. This was a bankruptcy-related case.

The instances where mens rea is not considered

In modern times, a large number of criminal offences have been developed in which no
indication of intent or other mental condition is required. The absence of mens rea has
traditionally been associated with a few crimes, such as statutory rape, in which knowledge
that the victim is under the age of consent is not required for liability, and bigamy, in which the
parties believe they are free to marry in good faith. A number of regulations regulating
economic or other actions usually known as public welfare offences with low fines do not need
mens rea to be demonstrated.

Strict liability

A number of offences are considered under strict liability, even if they are committed without
the presence of a guilty mind. Actus non facit reum nisi mens sit rea has a couple of exceptions.

• Criminal libel

• Public nuisance (Hicklin Test)

• Contempt of court

• Abduction/Kidnapping

• Bigamy

• Waging war

• Sexual harassment

• Rape

• Selling of obscene books

• Essential Commodities Act, 1955

• Motor Vehicles Act,1988

The Supreme Court distinguished between taking and allowing a minor in the case
of S.Varadrajan v. State of Madras (1964). According to the Court, just having a role in assisting
the girl’s fulfilment of her objective does not constitute taking. That component falls short of
inducing the minor to flee her authorised guardian’s custody and, as a result, is not equal to
taking.

The two terms are not interchangeable. There are distinctions between the two. In this case,
the accused did not remove her from the custody of her legal guardian. In a case such as this,
the accused individual must establish some kind of incentive or active participation in the
creation of the minor’s intention to leave the guardian’s house. She willingly accompanied him,
and the law did not place any obligation on him to return her to her father’s house or even to
tell her not to. There was no taking in this case. S. Varadrajan was found not guilty.

Mens rea and actus reus : a distinction

Mens rea and actus reus were inherently connected in common law doctrine. Liability
necessitated a guilty mind as well as a wrong act. However, it’s questionable whether this most
fundamental organising distinction is consistent and effective in defining offence requirements.

• The requirements for actus reus do not all have to be ‘acts’ or even objective in
character. For example, a circumstance element of a crime could be completely
abstract, such as “being married” in bigamy or “without licence” in trespassing. Indeed,
actus reus aspects might include simply subjective mental states, such as the need to
instil “fear” in theft or the absence of “consent” in rape.

• The mens rea theories aren’t all “state of mind” criteria, nor are they even subjective.
The mens rea part of negligence, for example, is a failure to fulfill an objective norm of
attentiveness rather than being subjective or a state of mind.

• Furthermore, the mens rea and actus reus criteria serve no separate functions. Many
aspects of the actus reus, including the voluntariness portion of the voluntary act
requirement in commission offences, the physical capacity requirement in omission
offences, and the possession offence requirement that the person has possession for a
period sufficient to terminate possession, all contribute to determining whether a
violation is blameworthy.

• While many components of the actus reus define a criminal activity, such as the conduct
and circumstance elements of the offence definition, some features of mens rea, such
as the culpability criteria in inchoate offences, serve the same purpose of defining
banned conduct.

• The mens rea refers to factors that need the defendant to be in a certain state of mind
or to be negligent, while the actus rea refers to all other crime requirements, which are
typically divided into behaviour, circumstances, and results.
In R v. Tolson(1889), Mrs. Tolson was married in 1890. In December 1881, her spouse went
missing. He had been on a ship that had gone missing at sea, she was told. She also enquired
about her husband’s older brother. She married another six years later, assuming her spouse
had died. The second husband was completely aware of the circumstances. Her husband
returned 11 months after their wedding date. Under Section 57 of the Offences Against Persons
Act, 1861, she was charged with bigamy. The reason for this was that she had married for the
second time in less than seven years. She did so with the best of intentions. This part was
devoid of any mention of the guilty mind. She was given the benefit of the doubt defence
because it was reasonable to believe her husband was deceased in the circumstances. She was
found not guilty. Honest and reasonable error is on the same level as the absence of the
thinking faculty in childhood and the maintenance of that faculty in madness. Unless expressly
excluded or by necessary inference, these exclusions apply equally to statutory offences.
The actus non facit reum, nisi mens sit rea was applied by the Court.

Case laws

Brend v. Wood (1946)

The fundamental rule that applies to criminal cases is actus non facit reum nisi mens sit rea, as
Justice Goddard stated in the case of Brend v. Wood (1946). It is critical for the protection of the
subject’s liberty that a court remember that “unless the statute expressly or by necessary
implication rules out mens rea as a constituent part of a crime, a defendant should not be
found guilty of an offence against the criminal law unless he has a guilty mind.”

Sherras v. De Rutzen (1895)

In the case of Sherras v. De Rutzen (1895), Justice Wright stated that

1. There is a presumption that mens rea, or ill purpose, or awareness of the wrongfulness
of the act, is a fundamental part in every offence

2. Unless the opposite is proven, mens rea is assumed in every statute.

3. There is a presumption that mens rea, or evil intent, or knowledge of the act’s
wrongfulness, is an essential ingredient in every offence; however, that presumption
may be displaced either by the words of the statute creating the offence or by the
subject-matter with which it deals, and both must be considered.

State of Maharashtra v. M.H.George (1964)

State of Maharashtra v. M.H George(1964) is a landmark judgment. On November 27, 1962,

Mayer Hans George, a German smuggler, flew from Zurich (famous city of Switzerland) to
Manila (Capital of Philippines) with 34 kilos of gold concealed on his person. On the 28th, the
plane arrived in Bombay, but the respondent did not disembark. The customs authorities
searched the plane’s manifest for any gold consigned by any passenger but found none. They
boarded the plane, searched the respondent, recovered the gold, and charged him with an
offence under Sections 8(1) and 23(1-A) of the Foreign Exchange Regulation Act, 1947, as well
as a Reserve Bank of India notification dated November 8, 1962, which was published in the
Gazette of India on November 24.

Several British and Indian cases were examined by the Supreme Court. The purpose of the FERA
of 1947 was to combat smuggling. This case is related to the country’s economic situation. As a
result, the Supreme Court adopted the strict liability concept rather than the maxim.

Prabhat Kumar Singh v. State of Bihar(2021)

The Supreme Court recently stated in Prabhat Kumar Singh v. State of Bihar(2021) that Mens
Rea’s absence, i.e. malicious or evil intent, is not a relevant factor in matters of medical
negligence. At the same time, the Court has stressed the need to follow the correct procedure
when trying any criminal complaint involving medical negligence.

Subhash Shamrao Pachunde v. State of Maharashtra (2005)

The Supreme Court in Subhash Shamrao Pachunde v. State of Maharashtra (2005) held that the
involvement of special mens rea, which consists of 4 mental attitudes in the presence of any of
which the lesser offence becomes greater, is important in determining the distinction between
culpable homicide and murder.

Debeswar Bhuyan v. State Of Assam (2005)

The Court in Debeswar Bhuyan case (2005) noted that the burden on the accused to prove its
plea of unsoundness of mind under Section 84 IPC is not higher than that on a party in a civil
proceeding, and further noted that the accused/appellant was charged with murder and, under
the maxim ‘actus non facit reum nisi mens sit rea’, the prosecution must prove that the act of
assault and his guilty mind, i.e. mens rea, coexist. In another sense, the act alleged to have been
performed by the accused must always be accompanied by his guilty thought or mens rea in
order to be considered murder under the Penal Code. It is also noted that if the evidence on
record regarding the accused’s mental state raises doubts about his mental culpability, it must
inevitably be held that the prosecution has failed to prove the charge of murder against him,
and this is permissible even if the accused has not been able to prove beyond a reasonable
doubt that he was of unsound mind at the relevant time. And, after reviewing the facts on
record, the Court concluded that the accused was not in a normal state of mind at the time he
committed the attack, making it impossible to infer that he had the mens rea to conduct the
crime with which he had been charged.

Conclusion

Crime and punishment are intrinsically tied. In accordance with the criminal law system, mens
rea is a crucial component. As a result, unless clearly stated otherwise with just reasons, mens
rea becomes the sine qua non for all cases. By the presumption, every individual is presumed to
intend the natural consequences of his act. Furthermore, taking into account relevant
judgments, and the legislative framework, it is not possible to say that mens rea is not an
essential element in statutory offences. The Supreme Court has stated numerous times that it is
not obligated to adopt an English court’s decision, but rather is free to develop a law that is
appropriate for Indian conditions.

Punishment:

Introduction

Punishment. A term which is inherent to criminal justice. It is only because of the term
punishment, that certain acts are classified as ‘crimes’. Down the lane of the history of the
society, we have seen that without punishments, it would have sometimes been impossible to
tame the barbaric, as well as primitive tendencies of the public. It was the weapon named
‘punishment’, that the rulers used against their subjects in order to maintain a fear in the minds
of the public regarding the capacities and powers of their rulers. Punishments sometimes were
also given as an insult to someone else. However, the most common punishment from which all
of us are familiar is the scolding or mild beating that we get from our parents. In that case, what
are the theories of punishment actually in case of serious crimes? How did they develop? What
are the pros and cons of the various ways of punishing people? Do the Hindu scriptures too
depict any form of the punishments mentioned hereinafter? Through this paper, we will try to
answer all such questions and understand how far are the various Theories of Punishment
applicable in the present era. The theories of punishment are as follows:

• RETRIBUTIVE THEORY.

• DETERRENT THEORY.

• PREVENTIVE THEORY.

• INCAPACITATION THEORY.

• COMPENSATORY THEORY.
 • REFORMATIVE THEORY.

• UTILITIRIAN THEORY.

Let us have a look at each one of them in detail.

Retributive Theory of punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in the
society would perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal
sentence over a perpetrator. It is based on a very small doctrine, namely the doctrine of Lex
talionis, which if translated, means ‘an eye for an eye’. Now, if looked at from the perspective
of very serious and heinous offences, like the Delhi gang rape case, people may feel that it is
better to inflict such retributive punishments, so as to ensure that a deterrent is set across the
society, in order to prevent such crimes in the near future.

However, we forget to understand sometimes that always having a retributive approach will
render the society one with a primitive system of justice, where the Kings or the Judges were
considered to be the supreme beings and were provided with the stature of God Himself
(hence the address My Lord) and thus, collapse the very concepts of the representatives being
‘servants’. Before we move on to a deeper understanding of the Retributive Theory, we need to
understand two very important doctrines. Let us have a look at them both.

Doctrine of Societal Personification and the Doctrine of Correctional Vengeance:

• Doctrine of Societal Personification can be stated as-

‘When a member of the society is subjected to a very heinous crime, as a result of which, the
whole society, as if it were a natural person, considers the offence to be inflicted upon itself,
comes to the defence of that person either by way of demanding justice or by conducting the
same on its own, the society is said to be personified.’

A very self-explanatory doctrine. To be put simply, it means that the society, whenever a
heinous crime of an extreme form is committed, assumes the form of a natural person and
behaves in a collective manner so as to get justice.

Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape case, etc.

• Doctrine of Correctional Vengeance maybe stated as-

‘When the society, in a fit to get justice, demands the concerned authorities to inflict vengeful
(as painful as the original act, or even more) punishments upon the victim for creating a
deterrent, it is said to exhibit correctional vengeance.’
The above definition, too, is quite self-explanatory in its nature. Now that we have understood
these two doctrines, we have a basic idea about what really is retributivism or retributive
justice. Let us now have a closer look upon the same.

Understanding Retributive Theory of Punishment:

‘The concept of retributive justice has been used in a variety of ways, but it is best understood
as that form of justice committed to the following three principles:

1. that those who commit certain kinds of wrongful acts, paradigmatically serious crimes,
morally deserve to suffer a proportionate punishment;

2. that it is intrinsically morally good—good without reference to any other goods that
might arise—if some legitimate punisher gives them the punishment they deserve; and

3. that it is morally impermissible intentionally to punish the innocent or to inflict

disproportionately large punishments on wrongdoers.’

The above three principles clarify the needs for retributive justice even further. We may
understand retributive justice in this manner. The place where both Criminal Law as well as
Moral Law meet, is the place where mostly the retributive punishments are generated.

In fact, although people may classify punishments into seven different types, but in reality,
every punishment, indeed, is retributive in nature. It is very interesting to see that the damages
claimed under Torts, or the remedies sort for environmental violations, maybe compensatory,
but at their hearts, are retributive in nature. Then why aren’t they labelled as retributive,
instead? Well, the answer to the question is simple. Retributive punishments are somewhat
vengeful in their nature (an eye for an eye). They may not be vengeful always, but maybe
merely morally vengeful. When we say this, it means that although the punishment is not
literally the thing that was originally done by the perpetrator, is still acts as a vengeance by
virtue of its seriousness.

E.g: If a person rapes someone, capital punishment maybe given as a retributive measure. If we
literally give the person back what he did, i.e., sex, then it would be pleasurable rather than
torturing for him. Now that we have understood briefly that how exactly the retributive
punishment works, let us now move on to understand the ways in which Retributive Theory is
displayed in the Hindu texts and scriptures.

Retributive Theory and the Hindu Scriptures:

The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga Saptashati, are
primarily based on Retributive Theories but also, depict the ways in which one should proceed
while applying them.

Ramayana- In the Ramayana the whole story began from retribution itself. Lakshmana cut the
nose of Raavan’s sister, because of which he kidnapped Sita. In order to rescue her and also to
avenge her kidnapping, Ram went to kill Raavan. But, the major difference between the
application of the retributive punishment between the two was that Raavan did not even
give Ram a chance to repent for his younger brother’s act, but, Ram gave several chances
to Raavan to correct his act.

Mahabharata– Mahabharata, once again, is a very good example of how retributive

punishment should be inflicted. The Pandavas had not started-off with the war right away.
They had sent Shri Krishna as their messenger of peace a number of times to the Kauravas, but,
they did not give in. Mahabharata, especially Shrimad Bhagvad Geeta, talks about the time
when the retributive mode should be used. As we all know that Arjun was about to leave the
battlefield as he was too scared to go against his own relatives, it was Krishna who said that
‘when all other paths close down, only then war is to be resorted to. Because if then the person
refuses to fight, then it will inflict gross injustice upon the society at-large.’

Durga Saptashati– In this too, Goddess Durga warns the various demons,
i.e. Mahishasur and Shumbh-Nishumbh, repeatedly, before starting a killer spree upon them.

Now, let us move on to see some important case laws regarding this theory of punishment.

Case Laws:

1. Nirbhaya Judgement– This case is indeed the first and foremost case to be mentioned,
while talking about retributive justice in India. In this Judgement, the Supreme Court
sentenced four out of six felons involved in the extremely heinous Delhi gang rape case
to death, much to the delight of the society, as they had committed an extremely
gruesome, as well as morally unimaginable crime.

2. Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted had
already undergone a six month imprisonment term, before being officially convicted by
the Court. The Court held that since the convict had been convicted and also, the
required ‘blemish’ had also been imposed upon him, it was not necessary to sentence
him again in the name of ‘retributive punishment’, as it would inflict a very big loss upon
the family as well.
 3. Sri Ashim Dutta Alias Nilu vs State of West Bengal– In this case, it was observed that
both deterrent and retributive punishment aim at prevention of the recurrences of the
offences by others passing exemplary punishment for a particular offence. But the
civilization and the societies are progressing rapidly. There is advancement of science
and technology. The literate people and the experts in different branches of knowledge
started thinking in a different way. Eye for an eye, and tooth for a tooth are no more
considered as the correct approach towards the criminals. Such principle may
perpetuate the rule of the Jungle but cannot ensure the rule of law.

Pros and Cons:

Pros-

1. Acts as a strong deterrent.

2. Helps in giving moral justice to the victim.

3. Instils the feeling of trust within the society, towards the judiciary.

Cons-

1. Sometimes, may become disproportionate with the seriousness of the crime.

2. Society develops feelings of vengeance and destructive tendencies follow.

3. The State may become autocratic in its functioning, using the punishment to torment
people.

Deterrent Theory of punishment

In Deterrent theory of punishment, the term “DETER” means to abstain from doing any
wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals from
attempting any crime or repeating the same crime in future. So, it states that deterring crime
by creating a fear is the objective; to set or establish an example for the individuals or the
whole society by punishing the criminal. That simply means, according to this theory if someone
commits any crime and he/she is punished by a severe punishment, then, it may result maybe
that the people of the society will be or may be aware of the severe punishments for certain
kinds of crimes and because of this fear in the minds of the people of the society, the people
may stop from committing any kind of crime or wrongful act. Here I used the phrase “may
stop” instead of “will stop”. That means, there is a probability of committing any crime or
repeating the same crime.
The deterrent theory of punishment is utilitarian in nature. For a better understanding we can
say like, ‘The man is punished not only because he has done a wrongful act, but also in order to
ensure the crime may not be committed.’ It is best expressed in the word of Burnett, J who said
to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other horses may not be
stolen”.

Through making the potential criminals realize that it doesn’t pay to commit a crime, the
deterrent theory hopes to control the crime rate in the society.

Jurisprudential School of Thought:

The deterrent theory can be related to the sociological school of Jurisprudence. The sociological
school creates a relationship between the society and law. It indicates law to be a social
phenomenon, with a direct and/or indirect connection to society. One of the main aim of the
deterrence is to establish an example for the individuals in the society by creating a fear of
punishment.

Now most important question is arrived at; “Who established this deterrent theory of
punishment?”

The concept of deterrent theory can be simplifying to the research of philosophers such like
Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy Bentham (1748-1832).
These social contract thinkers provided the foundation of modern deterrence in criminology.

In the Hobbesian view, people generally pursue their self-interests, such as material gain,
personal safety and social reputation and make enemies, not caring if they harm others in the
process. Since people are determined to achieve their self-interests, the result is often conflict
and resistance without a fitting Government to maintain safety. To avoid, people agree to give
up their egocentricity as long as everyone does the same thing, approximately. This is termed
as “Social Contract”. According to this social contract, he stated that individuals are punished
for violating the social contract and deterrence is the reason for it to maintain the agreement
between the State and the people, in the form of a social contract workable.

According to Cesare Beccaria, while discussing about punishments, the proportion of the crime
and punishments should be equal for it to serve as a deterrence or have a deterring value.

According to J. Bentham, who is known as the founder of this theory, a hedonistic conception of
man and that man as such would be deterred from crime if punishment were applied swiftly,
certainly, and severely. But being aware that punishment is an evil, he says, if the evil of
punishment exceeds the evil of the offence, the punishment will be unprofitable; he would
have purchased exemption from one evil at the expense of another.

From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham, we came to
know that the theory of deterrence consists of 3 major components. They are as follows:

• Severity: It indicates the degree of punishment. To prevent crime, criminal law must
emphasize penalties to encourage citizen to obey the law. Excessively severe
punishments are unjust. If the punishment is too severe it may stop individuals from
committing any crime. And if the punishment is not severe enough, it will not deter
criminals from committing a crime.

• Certainty: It means making sure that punishments must happen whenever a criminal act
is committed. Philosopher Beccaria believed that if individuals know that their
undesirable acts will be punished, then they will refrain from offending in the future.

• Celerity: The punishment for any crime must be swift in order to deter crime. The faster
the punishment is awarded and imposed, it has more effect to deter crime.

Therefore, deterrence theorists believed that if punishment is severe, certain and swift, then a
rational person will measure the gain or loss before committing any crime and as a result the
person will be deterred or stopped from violating the law, if the loss is greater than the gain.

According to Austin’s theory, “Law is the command of the Sovereign”. In his imperative theory,
he clearly declared three important things, which are as follows:

1. Sovereign.

2. Command.

3. Sanction.

Austin’s question is that ‘Why do people follow the rule?’. He believes that people will follow
the law because people have a fear of punishments. On the basis of his beliefs, we can see a
small example over here: When people are biking, they wear a helmet as per biking rules. Now,
we can assume that some people wear helmets genuinely to save themselves from road
accidents but on the other hand, some people wear helmets because of escaping fines or in
fear of cancellation of their biking licence. So, in that case, they know that if they bike rashly or
disobey the biking rules they will be punished by giving huge a amount of fine or their biking
licence will be cancelled. So here we can say that the purpose of the deterrent theory is
successful and applied also.
Now, if we go back a little earlier in time, in our Hindu Scriptures we also see that there were
several punishments like public hanging, not only that but also people were immersed in hot oil
or water. Most penal systems made use of deterrent theory as the basis of sentencing
mechanism till early 19th century.

• In England, punishments were more severe and barbaric in nature to restrict same crime
in the future. At the time of ‘Queen Elizabeth I’, deterrent theory of punishment was
applied for restricting future crimes, even for too little crimes like ‘pickpocketing’.

• In India also, inhuman punishments are granted.

But, if we discuss or follow this theory in today’s context, then, it will be very clear that
“deterrent theory” is not applicable at all or it may not be useful enough to prevent or to deter
crimes by creating a fear in the minds of people. We have a very recent example of why
deterrent theory is not successful in the case of “Nirbhaya Rape Case, 2012”. This case is the
foremost case to be mentioned while talking about deterrent theory of punishment. In this
judgement, the Supreme Court sentenced four out of six offenders involved in the extremely
heinous Delhi gang rape case to death. Now, the most important questions are-

• Whether the death sentence to the culprits will act as a deterrent?

• Will the number of crimes against women in our society drop down permanently?

• Specifically, in Nirbhaya judgement, is the aim of deterrent theory fulfilled?

The answers are ‘no’. According to deterrent theory, the main objective is ‘to deter crime, by
creating a fear or establishing an example to the society.’ Now, death penalty is a severe
punishment. In the Nirbhaya case, the Court gave death sentence to the four convicts for
committing gang rape. We can say that it is a great example for future offenders who will think
about committing a crime like rape in future. So, according to this theory, after Nirbhaya
judgment crimes like rape should not happen. But they are happening till now. Day-by-day,
rape cases are increasing in our society.

In Nirbhaya gang rape judgement, it’s being suggested that justice has finally been served to
“India’s Daughter” and though the decision came after a staggering seven years, it will help to
secure the safety of women and prevent rape cases in the future. But it seems to further, as
starting of the year 2020 has seen a slew of rape cases continue unabated. As an example, we
can see for a recent gang rape case which was happened at Hathras, Balrampur, on 1st October
2020. So, simply we can see that there is no improvement through severe punishments also.
“Death penalty does not act as a deter to rape cases”- This is the actual message we have
understood. So that’s why we can say that in today’s generation there is no major implication
of ‘Deterrent Theory of Punishment’.

Preventive Theory of punishment

Preventive theory of punishment seeks to prevent prospective crimes by disabling the

criminals. Main object of the preventive theory is transforming the criminal, either permanently
or temporarily. Under this theory the criminals are punished by death sentence or life
imprisonment etc.

Philosophical View of Preventive Theory:

Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of
punishment due to its humanizing nature. Philosophy of preventive theory affirms that the
preventive theory serves as an effective deterrent and also a successful preventive theory
depends on the factors of promptness. The profounder of this theory held that the aim of
punishment is to prevent the crimes. The crimes can be prevented when the criminal and his
notorious activities are checked. The check is possible by disablement. The disablement may be
of different types. Confining inside the prison is a limited form of disablement, that is
temporary and when it is an unlimited form of disablement, that is permanent. It suggests that
imprisonment is the best mode of crime prevention, as it seeks to eliminate offenders from
society, thus disabling them from repeating the crime. The death penalty is also based on this
theory. This theory is another form of deterrent theory. One is to deter the society while
another is to prevent the offender from committing the crime. From an overall study, we came
to know that there are three most important ways of preventive punishment, they are as
follows:

• By creating the fear of punishment.

• By disabling the criminal permanently or temporarily from committing any other crime.

• By way of reformation or making them a sober citizen of the society.

Case Laws:

1. Dr. Jacob George v state of Kerala: In this case, the Supreme Court held that the aim of
punishment should be deterrent, reformative, preventive, retributive & compensatory.
One theory preferred over the other is not a sound policy of punishment. Each theory of
punishment should be used independently or incorporated on the basis of merit of the
case. It is also stated that “every saint has a past & every sinner has a fortune”.
Criminals are very much a part of the society so it is a responsibility of the society also to
reform & correct them and make them sober citizens of the society. Because the
 prevention of crime is the major goal of the society and law, both of which cannot be
ignored.

2. Surjit Singh v State of Punjab: In this case, one of the accused, a policeman entered the
house of the deceased with the intention to commit rape but failed to do so as the as
sons of the deceased shouted for help. Another accused suggested the policeman to kill
the deceased. The accused was held liable under section 450 of the Indian Penal
Code. While on the contrary, the death penalty or capital punishment is more of a
temporary form of disablement.

Incapacitation Theory of punishment

Meaning:

The word “incapacitation” means ‘to prevent the offence by punishing, so that the future
generation fears to commit the criminal act.’ Incapacitation happens either by removing the
person from the society, either temporarily, or permanently, or by some other method, which
restricts him due to physical inability. One of the most common way of incapacitation
is incarceration of the offenders, but in case of severe cases, capital punishments are also
applied. The overall aim of incapacitation is preventing or restraining the danger in the future.

Definition:

“Incapacitation refers to the restriction of an individual’s freedoms and liberties that they would
normally have in society.”

Purpose of Incapacitation Theory:

One of the primary purposes of this theory is removing the sufficiently dangerous persons from
the society. The risk that is found to be posed by the offenders are largely a matter of inception.
Therefore, if one country treats one offence in one way, another country will treat the same
offence in a different way. For example, in the U.S., they use incarceration to incapacitate
offenders at a much higher rate, than in other countries. It has been seen that unlike the other
theories of punishments like deterrence, rehabilitation and restitution, the theory of
incapacitation simply rearranges the distribution of offenders in the society so that the rate of
crime decreases in the society. The main aim of the theory of incapacitation is to dissuade
others from the offenders in the past, so that it is not followed by the future generation.

Application of the theory:

The theory of incapacitation gets reserved only for those people who are either sentenced to
prison or to life imprisonment. Yet, it also includes things like being supervised by the
departments within the community, like probation and parole.

Origin:

The theory of incapacitation was originated in Britain, during the 18th and the 19th centuries,
where the convicted offenders were often transported to places like America and Australia.
Later in the 21st century, the theory was changed to some extent, where the offenders were to
remain in the primary method of incapacitation which was found in most of the contemporary
penal systems. Therefore, the theory usually takes the form of imprisonment, which is
considered to be the best the form of incapacitation, rather than other methods of
incapacitation.

So, can incapacitation reduce crime?

According to a study conducted by The University of Chicago, it has been proven that the crime
rates can be prevented by 20 per cent. Also, it has been seen that if other theories are applied
like Retributive Theory, Compensatory Theory, etc., then they lay down a fairly stringent
application of putting the criminal behind the bars for at least 5 years. Also, it can happen to
increase the population of the prison if the rest of the theories are applied. If a small number of
high-rate offenders commit a disproportionately large amount of crime, targeting limited prison
resources on these offenders should achieve increased crime control without increasing prison
populations unreasonably. This policy will depend on the degree of the crime committed and
whether the criminal is early in his carrier.

Compensatory Theory of punishment

Definition:

The main look out in the law of crimes is to penalize the criminal, and/or to seek his
reformation and rehabilitation with all the resources and goodwill available through the Courts
and other Governmental and non-Governmental organizations. It must be seen that the
criminals should get proper judgement for their crimes so caused and the harassment caused to
the victim and towards their family members and property. The victims in a crime can be
compensated on mainly two grounds, namely-

1. A criminal who had inflicted an injury against the person (or group of persons), or the
property must be compensated for the loss caused that has caused to the victim, and

2. The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.
Compensation is the true essence of deterrent, reformative and a necessary contribution of
retribution.

Case Laws:

• In the landmark case of DK Basu v. State of West Bengal the Apex Court held that a
victim who is under the custodial right, has every right to get compensated as her Right
to Life, which is under Article 21 of the Constitution, has been breached by the officer of
the State.

• In State of Gujarat and Anr. v. Hon’ble High Court of Gujarat, Justice Thomas had held
that, “The Reformative and reparative theories deserve serious consideration, where
the victim(s) of crime or his family members should get compensated from the wages
that is earned in prison by the criminal.” The Court suggested that the particular State
should enact a comprehensive legislation in respect of his compensation payable to
victim of a crime.

Reformative Theory of punishment

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object of discipline
ought to be the change of the crook, through the strategy for individualization. It depends on
the humanistic rule that regardless of whether a wrongdoer perpetrates a wrongdoing, he
doesn’t stop to be a person. In this way, an exertion ought to be made to change him/her
during the time of his/her detainment. For example, he may have executed bad behaviour
under conditions which may never happen again. Hence an effort should be made to transform
him during the hour of his confinement. The object of order should be to accomplish the moral
difference in the liable party. He ought to be told and perform some craftsmanship or industry
during the hour of his confinement with the objective that he may have the alternative to start
his life again after his conveyance from jail.

History of the Theory:

The human development has consistently been administered under the standard of an
incomparable force. The job and type of pre-eminent force has changed throughout a long
term. Beginning from the primitive type of Government to the present just, republican and
different types of Governments, the obligation of the incomparable authority has changed a lot.
The idea of discipline has additionally changed like the idea of State duty throughout the long
term. The idea of discipline relied upon the premise of religion and the organization of the
Kings. During old occasions, the idea of discipline was retributive premise, where the hoodlums
were given uncouth type of discipline. Afterward, over the entry of ages, the significance of
common liberties expanded which in essence cleared path for the replacement of Retributive
hypothesis by Reformatory and Rehabilitative hypotheses. Under the Reformative and
Rehabilitative hypotheses, the blamed are given such structures for discipline which would
change them and keep them from perpetrating such wrongdoings.

The theory of punishment being followed in India with the goal to change the crooks as
opposed to rebuffing them isn’t that compelling in avoidance of the event of violations in India.
The essential idea of law isn’t to be static, but to be dynamic in nature. At exactly that point the
law will have the option to be successful in all fields of the general public.

The Main Purpose Reformative Theory:

The reason for this hypothesis of discipline is to make the criminal languish over his bad
behaviour. Here the motivation behind the discipline is profoundly customized and rotates
around the mental outlet of the person in question or his family. The primary reason might be
accomplished to parole and probation, which have been acknowledged as current procedures
of improving the guilty parties all around the globe. Consequently, the backers of this
hypothesis legitimize imprisonment not exclusively to separate hoodlums and kill them from
society. Not many of the advanced reformative procedures of discipline are essentially
concocted for the treatment of guilty parties as per their mental attributes, for example,
probation, parole, uncertain sentence, exhortation and pardon. The reformative techniques
have demonstrated to be valuable in the event of adolescent misconduct, first wrongdoers and
ladies. Sex cases additionally appear to react well to the reformative strategy for discipline. All
the more as of late, the reformative hypothesis is in effect widely utilized as a technique for
treatment of intellectually denied wrongdoers.

Criticism:

1. Reformative theory anticipates better framework and offices in jail, legitimate co-
appointment between various control and diligent exertion on their part to shape
criminals. It requires gigantic ventures which poor nation can’t bear the cost of.

2. A great many guiltless individuals who have high respects for law are finding hard to get
fundamental courtesies hypothesizes moral avocation for giving better offices inside
jail.

3. Also, the soundness of the hypothesis is more towards motivators for the commission of
wrongdoing instead of counteraction.

4. Transformation can work out on those individuals who can be improved, there are
individuals who can’t be changed like bad-to-the-bone lawbreaker, profoundly
instructed and proficient hoodlums.
 5. This theory disregards possible wrongdoers and people who have submitted
wrongdoing however not inside the arms of law. Further, it ignores the cases of
survivors of violations.

6. Degenerate social ecological is liable for wrongdoing yet not person duty, is the way of
thinking of reformative which is difficult to process. In any case, it is out of line to excuse
the honourable idea of reconstruction as a complete disappointment. All know about
the occasions where untalented, uninformed and evidently hopeless lawbreakers have
created aptitudes in jail, which have changed them into profoundly valuable people.

Utilitarian Theory of punishment

The utilitarian hypothesis of discipline tries to rebuff guilty parties to debilitate, or “hinder,”
future bad behaviour. Under the utilitarian philosophy, laws ought to be utilized to amplify the
joy of society. Since wrongdoing and discipline are conflicting with bliss, they ought to be kept
to a base. Utilitarian’s comprehend that a wrongdoing-free society doesn’t exist, yet they
attempt to incur just as much discipline as is needed to forestall future violations.

The utilitarian hypothesis is “consequentialist” in nature. It perceives that discipline has

ramifications for both the wrongdoer and society and holds that the all-out great created by the
discipline ought to surpass the absolute malevolence. At the end of the day, discipline ought
not be boundless. One delineation of consequentialism in discipline is the arrival of a jail
detainee experiencing an incapacitating sickness. In the event that the detainee’s demise is fast
approaching, society isn’t served by his proceeded with restriction since he is not, at this point
fit for carrying out wrongdoings.

Under the utilitarian way of thinking, laws that indicate discipline for criminal leads ought to be
intended to dissuade future criminal direct. Discouragement works on a particular and an
overall level. General discouragement implies that the discipline ought to keep others from
carrying out criminal acts. The discipline fills in as an illustration to the remainder of society,
and it advises others that criminal conduct will be rebuffed. Explicit discouragement implies
that the discipline ought to keep similar individual from perpetrating violations. Explicit
prevention works in two different ways. Initially, a guilty party might be placed in prison or jail
to truly keep her from perpetrating another wrongdoing for a predefined period. Secondly, this
crippling is intended to be undesirable to such an extent that it will demoralize the guilty party
from rehashing her criminal conduct.

Does Utilitarian Theory Support Death Penalty:

The apparent seriousness of capital punishment, there has been an exceptional debate
encompassing the issue. Rivals of capital punishment pronounce that it is savage and harsh thus
the administration ought to get rid of it. Then again, its allies keep up that capital punishment is
a fundamental type of discipline that ought to be utilized on the most horrible guilty parties in
the public eye. The exceptionally captivated discussion on capital punishment has kept on
existing for quite a long time. Moral hypotheses can be utilized to concoct an answer for this
exceptionally dubious issue. Morals figure out what is the correct strategy in a given
circumstance. Various strong moral hypotheses have been proposed by researchers and
scholars throughout the long term. This paper will utilize one of the most broadly applied moral
hypotheses, which is utilitarianism, to exhibit that capital punishment is for sure legitimized.

Review of the Utilitarian Theory:

From a utilitarian viewpoint, activities that advance the satisfaction of the larger part in the
public arena ought to be sought after while those that prevent this bliss ought to be evaded.
The utilitarian hypothesis can be applied to the issue of the death penalty since this type of
discipline produces both positive and negative results.

Net Benefits:

The principal significant advantage offered by capital punishment is that it assumes a huge
discouragement job. The most significant objective of the criminal equity framework is to
debilitate individuals from taking part in wrongdoing.

This is accomplished by joining disciplines to violations with the goal that an individual sees the
benefits of taking part in unlawful activities as being exceeded by the results. In that capacity,
an ideal society would be one where nobody is rebuffed since the danger of discipline shields
everybody from taking part in wrongdoing. Capital punishment is the most extreme discipline
and its accessibility is probably going to dissuade individuals who probably won’t be frightened
by long jail sentences.

From a utilitarian point of view, the prevention job is moral since it adds to the general
satisfaction of the general public. At the point when crooks are deflected from participating in
wrongdoing, the general public is more secure and individuals appreciate the harmony and
security in their networks.

Another huge advantage offered by capital punishment to the general public is that it prompts
the perpetual debilitation of the indicted individual. Not at all like different types of discipline
which just confine a portion of the opportunities of the guilty party, capital punishment
removes his life.

Conclusion
Thus, we saw the different Theories of Punishments in detail. We understood what are the
guiding principles behind them, how are they different from one another and some very
important Case Laws pertaining to the same. However, we need to understand very clearly that
punishment is something which should be inflicted very carefully. As the famous saying goes
that ‘Let go of a hundred guilty, rather to punish an innocent’, we need to understand that
inflicting a punishment upon someone changes his mental, physical and social status drastically.
It has a very grave impact upon him and his being. Thus, while administering criminal justice,
utter carefulness has to be executed, or else the very principles of justice would go for a toss.

KINDS OF PUNISHMENT UNDER THE INDIAN PENAL CODE UNIT 2

Under the law, punishment is provided to cease the wrongdoer from committing the crime
again. Punishment is a consequence or result of a wrong committed by a person. Provisions for
punishment are provided under section 53 and Chapter III of the Indian Penal Code (IPC).

The section defines various kinds of punishments to which the offenders are liable under
the Indian Penal Code. The punishments given under section 53 apply only to offences given
under this Code.

The court has the power to reduce the quantum of punishment after considering various
aspects of the case and the mitigating circumstances if any.

In India, the reformative theory is followed to provide punishment. The punishment awarded
should neither be so harsh nor so easy so that it fails to serve its purpose in generating impact
on the offender and as an eye-opener for others. It is considered that punishment should be of
such a nature that it brings reform in a person’s personality and thinking.

• Punishments Under Section 53, IPC

o Death Punishment

o Imprisonment For Life

o Imprisonment

o Forfeiture of Property

o Fine Under IPC

o Solitary Confinement

Punishments Under Section 53, IPC

The punishments to which offenders are liable under the provisions of this Code are:
 1. Death.

2. Imprisonment for life.

3. Imprisonment, which is of two descriptions, namely:

(1) Rigorous, that is, with hard labour;
(2) Simple.

4. Forfeiture of property.

5. Fine.

6. Solitary Confinement.

As per section 53 of the Indian Penal Code, there are five types of punishments that a court
may provide to a person convicted for a crime. These are death, imprisonment for life, simple
and rigorous imprisonment, forfeiture of property and fine. And, section 73 provides for
another type of punishment, that is solitary confinement. Let us learn about all in detail.

1. Death Punishment

Punishment of death is also known as capital punishment. Under this punishment, a person is
hanged till he dies.

This punishment is sanctioned by the government and ordered by the court. It is provided only
in the rarest of rare cases. This punishment is provided only for serious offences. A death
sentence is the highest punishment awarded under IPC, and it has always been a controversial
subject. Arguments are made both in favour and against the retention of the capital sentence
as a form of punishment.

It was argued in Jagmohan Singh vs State of Uttar Pradesh, that the death penalty is
unconstitutional and hence invalid as a punishment. The Supreme Court held the death penalty
as valid. It held that deprivation of life is constitutionally lawful if that is done according to the
procedure set by law.

Death punishment or capital punishment can be provided for the offences under sections 121,
132, 194, 302, 303, 305, 307, 364A, 376E, 396 and so on of the Indian Penal Code. In these
sections, it is not obligatory for the court to provide capital punishment.

Earlier for the offence provided under section 303, i.e., murder by life-convict, capital
punishment was compulsory. In Mithu vs State of Punjab, the death penalty was held
unconstitutional for being violative of Articles 14 and 21 of the Constitution.
The Supreme Court in Bachan Singh vs the State of Punjab upheld the validity of the death
penalty, but the court restricted the provision of the death penalty in rarest of rare cases only.
If the case falls under this theory, then capital punishment may be given.

The court did not elaborate as to what falls under the category. Still, the court has declared it
from time to time that the cases like honour killings, assassination, genocide, brutal murder,
etc. fall under the definition of ‘rarest of the rare case’.

As per section 54 of the Indian Penal Code, the appropriate government can commute the
sentence of Death for any other punishment provided by this Code.

2. Imprisonment For Life

The words “imprisonment for life” was substituted for “transportation for life” by Act XXVI of
1955.

In this type of punishment, an accused convicted of a crime have to remain in prison until he is
alive or until pardoned or otherwise commuted to a fixed period.

In its natural meaning imprisonment for life means imprisonment for the whole of the
remaining term of the convicted person’s natural life. As per section 57 of the Code, the period
for life imprisonment is 20 years only for calculating purposes. Imprisonment for life can never
be simple imprisonment; it is always rigorous imprisonment.

Note: What is the reason behind 14 years of imprisonment?

As per section 433(b) of the CrPC and section 55 of the IPC, the appropriate government has
the power to reduce or suspend the sentence of imprisonment for life to imprisonment for a
term of not more than 14 years. As the prisoner is under the supervision of the State
Government, the State Government has trust in it and in such case, the State Government can
appeal for the reduction of the punishment. But life imprisonment cannot be less than 14 years.

3. Imprisonment

Imprisonment means taking away a person’s freedom and putting him in prison. According
to section 53 of the IPC, there are two kinds of imprisonment:

1. Simple Imprisonment: It is the type of imprisonment where an accused convicted of a

crime is kept in prison without any hard labour. They are required to do only light
duties. The punishment of simple imprisonment is awarded only for lighter offences
such as defamation.
 2. Rigorous Imprisonment: It is the type of imprisonment under which a prisoner or an
accused convicted for a crime is kept in prison, and they have to do hard labour such as
agriculture, carpentry, drawing water, etc. Rigorous imprisonment is obligatory for the
offences given under the following two sections (no alternative for simple imprisonment
is available).
a. Section 194, IPC: Giving or fabricating false evidence with intent to procure conviction
of capital offence.
b. Section 449, IPC: House-trespass in order to commit offence punishable with death.

4. Forfeiture of Property

Forfeiture implies the loss of property of the accused. Under this punishment, the State seizes
the property of a criminal. It is the result of the wrong or default caused by the person. The
property forfeited may be movable or immovable.

Forfeiture of property as punishment is provided for the offences given under section
126 (committing depredation on territories of Power at peace with the Government of India)
and section 127 (Receiving property taken by war or depredation mentioned in sections 125
and 126).

5. Fine Under IPC

The court may impose the punishment of fine as sole imprisonment or as an alternative for
imprisonment or in addition to the imprisonment. It depends upon the court to decide whether
either imprisonment or fine or both are to be awarded in a particular case. According to section
64 of IPC, if a person fails to give fine, the court may order for the imprisonment.

6. Solitary Confinement

It is defined under section 73 of the IPC. Solitary Confinement means keeping the prisoner
isolated and away from any kind of intercourse with the outside world. It is believed that a
feeling of loneliness may exert wholesome influence and reform the criminal. Solitary
confinement shall in no case exceed three months in total. The scale, as given in section 73, is
as follows:

1. If the term of imprisonment is less than or up to six months then the period of solitary
confinement shall not exceed one month.

2. If the term of imprisonment is more than six months but less than one year then the
period of solitary confinement shall not exceed two months.
 3. If the term of imprisonment is of more than one year, then the period of solitary
confinement may be up to three months but not beyond that.

It can be awarded only if the following two conditions exist:

1. A person must be convicted for an offence under this Code.

2. The offence must be the one for which the court has the power to sentence the accused
to rigorous imprisonment.

According to section 74 of IPC, the punishment of solitary confinement cannot be awarded for
the whole term of imprisonment, and it must be imposed at intervals. A sentence of solitary
confinement for the whole term of imprisonment is illegal if awarded for more than 14 days at
a time. When the imprisonment awarded is of more than three months, the solitary
confinement shall not exceed seven days in any one month of the whole imprisonment
awarded.

Charles vs Superintendent, Tihar Jail

In this case, the Supreme Court observed that solitary confinement means harsh isolation of a
prisoner from the society of fellow prisoners by cellular detention. It should be imposed
following a fair procedure and only in exceptional cases.

Compensation of victim of crime in India

Who is a victim of crime

• Any person, group, or entity who have suffered harm, injury or loss due to illegal
activities of others. The harm may be economical, mental, or physical.

• Thus any person who has suffered harm because of violation of criminal law is a victim.

• A person will be considered as a victim even when the offender is not identified or
prosecuted. Term victim also includes individuals who have suffered harm as a result of
assisting victims in distress or to prevent victimization.

• Not only the person who suffered loss or injury are the victim, but in some cases, the
near and dear of victims (family members) are also the victims.

Can a victim of crime get compensation in India

Yes. A victim of the offence can get compensation in India. But there is a procedure which
needs to be followed. We will discuss the procedure at length in the later part of this article.
How can the compensation be sought

The compensation has to be ordered by the court. Compensation can be sought through the
procedure established by the court. Compensation is awarded for material as well as non-
material damages.

Material damages include medical expenses, loss of livelihood, etc. Non-material damages
include pain, suffering, mental trauma, etc. In criminal cases, the victims can directly apply for
the compensation, and it is the duty of the lawyer representing the victim to demand such
compensation.

Laws governing compensation of victims of crime in India

• The provisions relating to compensation to victims of crime are contained in sections

357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure,
1973.

• Constitution of India also provides for certain safeguards to the victim of crime. Article
14 and 21 of the Constitution supports the argument.

Victim compensation under The Code of Criminal Procedure, 1973

WHERE CONVICTION AND FINE IS PART OF THE SENTENCE

When an accused is proven guilty, and the court passes an order which contains a fine of any
denomination, the court can order such fine or any part of it to be paid to the victim of crime.
The fine imposed is utilised to compensate the victim of fine in the following ways.

#1 Compensating for the expenses incurred during litigation (357 1 a)

• This is the essential relief which a victim of a crime must get. Litigation costs in India are
very arbitrary. The lawyer charges hefty amount. Getting justice at times adds to the
burden of the victim itself. Instead of getting justice, the victim is trapped in the
honeycomb of justice delivery system.

• The court knows this fact and thus, compensate victim by providing them the expenses
incurred during litigation.

#2 Compensation for loss or injury to be recovered by the civil court

• If the court is of the view that, the compensation sought is beyond the jurisdiction of the
court, the court itself orders the appropriate court to look into the matter.
 • In the payment to any person of compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the Court, recoverable by such person
in a Civil Court.

#3 Compensation in case of death

• One might question the fact that, who is the victim where death has been caused? As
the victim is already dead, who should be compensated for the crime?

• It is the family of the victim. Think of the mental trauma they might have gone through.
Medical expenses incurred, expenses during last rites. What if the victim who died was
the sole bread earner of the family?

• The Court is well aware of such situation. Therefore, the legislature and the judiciary
tied their hands to do complete justice.

• Victims are entitled to recover damages from the person sentenced for the loss
resulting to them from such death. When any person is convicted of any offence for
having caused the lives of another person or of having abetted the commission of such a
crime.

#4 Compensation of victim of crime in offences like theft, cheating, criminal breach of

trust, etc

In cases of crime such as theft, cheating, criminal breach of trust, criminal misappropriation, the
Court either tries for recovery of goods and in the case where recovery is not possible court
orders for compensation for the price of such goods.

COMPENSATION WHERE FINE IS NOT A PART OF THE SENTENCE

The accused person in such case may be ordered by the court to pay a certain sum as
compensation to the victim of crime who suffered loss or injury. Indian legal system is victim
friendly. Victim’s rights are kept at the top of the priority list.

When a Court imposes a sentence, of which fine does not form a part, the Court may, when
passing judgment, order the accused person to pay, by way of compensation, such amount as
may be specified in the order to the person who has suffered any loss or injury by reason of
the act for which the accused person has been so sentenced.

VICTIM COMPENSATION SCHEME

In 2009, the central government gave directions to every state to prepare a scheme which has
to be in agreement with the center’s scheme for victim compensation. The primary purpose of
the scheme is to provide funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who require
rehabilitation.

Quantum of compensation under the scheme

It is the court which orders that the victim who suffered loss needs to get compensated. Under
the scheme, whenever a recommendation is made by the Court for compensation, the District
Legal Service Authority or the State Legal Service Authority, as the case may be, decides the
quantum of compensation to be awarded.

Compensation in cases where the accused is not found guilty or the culprits are not traced

Where the cases end in acquittal or are discharged, and the victim has to be rehabilitated, the
court may make a recommendation for compensation.

Where the offender is not traced or identified, but the victim is identified, and where no trial
takes place, the victim or his dependents may make an application to the State or the District
Legal Services Authority for an award of compensation.

Who is to provide compensation in the above case

• The State or the District Legal Services Authority shall, after due enquiry-award
adequate compensation by completing the inquiry within two months.

• Also, it is the duty of the State or the district legal service authority to provide an
immediate first-aid facility or medical benefits to the victim free of cost on the
certificate of the police.

Treatment of victim of crime

All hospitals, public or private, whether run by the Central Government, the State Government,
local bodies or any other person, shall immediately, provide the first-aid or medical treatment,
free of cost, to the victims of any offence covered under the following of the Indian Penal Code,

• 376 (Rape)

• 376A (intercourse by a man with his wife during separation)

• 376 B (intercourse by a public servant with a woman in his custody), 376 C (Intercourse
by superintendent of jail or a remand home), 376 D (intercourse by any member of the
staff of a hospital with any woman in that hospital) of the Indian Penal Code.

• 376 C (Intercourse by superintendent of jail or a remand home),

 • 376 D (intercourse by any member of the staff of a hospital with any woman in that
hospital) of the Indian Penal Code

What to do in case of inadequate compensation

If the trial Court, at the conclusion of the hearing, is satisfied, that the compensation awarded
under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or
discharge and the victim has to be rehabilitated, it may make a recommendation for
compensation.

When is the compensation to be provided

• Along with the duty of the offender, it is the duty of the state too, to compensate the
victim. Compensation to the victim of crime can be provided:

• At the conclusion of the trial. That is on the orders of the court.

• When inadequate compensation is granted by the lower court to the victim of crime,
the Appellate Court might increase the compensation.

• Where accused is not traceable, it becomes the duty of the state to compensate the
victim of the crime.

CENTRAL VICTIM COMPENSATION FUND SCHEME

The Central government in 2015 formulated the CVCF scheme to compensate the determined.
Every state has their own guidelines which decide the procedure.

An attempt has been made by iPleaders to bring forth the procedure by examining different
scheme of the different states. This is a standard procedure which one might follow. To know
the exact step by step procedure, please see your state’s guidelines on Victim compensation
fund.

Step 1 Making an application before the District/State Legal Service Authority

• An application can be made for temporary or final compensation. It can be filed by the
Victims or their dependents or the SHO of the area.

• The application must be submitted along with a copy of the First Information Report
(FIR), medical report, death certificate, if available, copy of judgment/ recommendation
of court if the trial is over, to the State or District Legal Services Authority

Step 2 The scrutiny stage.

District Legal Service Authority of every state first verify the content of the claim. Specific loss,
injury, rehabilitation is taken into consideration.

Step 3 Deciding the quantum of compensation to be given to victim of crime

The quantum of compensation to be granted is decided on the following factors,

• The gravity of the offence and the loss suffered by the victim.

• Medical expenditure incurred during treatment.

• Loss of livelihood as a result of injury or trauma.

• Whether the crime was a single isolated event (Example Theft) or whether it took place
over an extended period of time (Example multiple times, Rape with a woman who has
been locked in a house)

• Whether the victim became pregnant as a result of such offence.

• In the case of death, the age of deceased, his monthly income, the number of
dependents, life expectancy, future promotional/growth prospects etc.

• Or any other factor which the Legal Service Authority might deem fit.

Step 4 Method of disbursement of compensation

• The amount of compensation so awarded shall be disbursed by the respective Legal

Service Authority by depositing the same in a Nationalized Bank in the joint or single
name of the victim/dependent(s).

• Out of the amount so deposited, 75% (seventy-five percent) of the same shall be put in
a fixed deposit for a minimum period of three years.

• The remaining 25% (twenty-five percent) shall be available for utilization and initial
expenses by the victim/dependent(s), as the case may be.

• In the case of a minor, 80% of the amount of compensation so awarded, shall be

deposited in the fixed deposit account and shall be drawn only on attainment of the age
of majority, but not before three years of the deposit.

Executive clemency UNIT 2

The clemency power of the executive has a unique nature which changes with time. In the
traditional view it was a sovereign power in the hand of her majesty; from the political point of
view it is a residuary power and from humanitarian approach, it is a path to ensure justice and
mercy. The Constitution of India envisaged the clemency power of executive under Article 72
and Article 161.

Fundamentals

The Clemency power cannot be understood properly without getting the meaning of the
Clemency and other related terms.

According to Merriam Webster Dictionary, the term ‘clemency’ means having moderate nature
especially to the severity of punishment which is due.[6] The dictionary definition of ‘pardon’
is, it is an act of grace, proceeding from the power conferred with the execution of the laws,
which exempts the individual on whom it is bestowed from the punishment the law inflicts for a
crime he has committed.[7] ‘Reprieve’ means temporary suspension of the punishment fixed by
law.[8] ‘Respite’ is postponement to the future the execution of a sentence.[9] ‘Commutation’
is changing the punishment from what was originally proposed[10] and ‘remission’ is reducing
the amount of punishment without changing the character or nature of the punishment.[11]

Clemency Power in India

The power of clemency or the pardoning power is envisaged under Article 72 for the head of
the state and the mutatis mutandis provision for the Governor is provided under Article 161.

This power does not work on the strict principle of law or interpretation of the law; it deals with
those aspects which are often alien and irrelevant to legal adjudication like morality, ethics,
public good and policy considerations. These are the cornerstones in the exercise of clemency
powers.[39]

The executive power of clemency usually comes into picture when the sentencing and
conviction process is completed. In pursuance of these clemency powers, the President and
Governor are authorised to scrutinise the record of the case and if they find out that the as per
their analysis then they may differ with the judicial verdict or if they agree with the court then
also they may correct the error beyond judicial ken.[40] The most important part here is the
president and the governor will decide the case on the aid and advice of the council of ministers
respectively.[41]
In the case of Re Maddela Yera Channugadu & others v. State,[42] the Madras High court said
that the pardon power extends to the whole of India. The power to grant pardon may be
exercised either before conviction by amnesty to the accused or under-trial prisoner or after
conviction. The reasoning of the court, in this case, was the similarity in the wordings of the
United States Constitution and the Constitution of India. But it can be argued that the Courts, in
reaching the above conclusions have neglected the core principles of interpretation of a
constitutional text.[43]

Impact of Judiciary on Clemency Power

The basic development served by the judiciary in the context of Article 72 and 161 is allowing
judicial review.

In the case of Manu Ram v. Union of India,[44] the court stated that the power of pardon shall
never be exercised arbitrarily, or malafide.

In the case of Kehar Singh v. Union of India,[45] the court stated that the area of presidential
power under Article 72 falls squarely within the judicial domain and can be examined by the
court by way of judicial review.

The Supreme Court also laid down certain grounds which can be claimed by the petitioner for
judicial review of the Clemency Power:

1. The order passed without application of mind;

2. The order is mala fide;

3. The order is passed on wholly irrelevant consideration;

4. The order suffers from arbitrariness.[46]

The recent landmark judgment of the Supreme Court Shatrughan Chauhan v. Union of
India,[47] where the petition was filed by the convict whose mercy got rejected and no reason
for undue delay explained it leads to violation of Article 21.

The Supreme Court stated that the cases in which there is an unexplainable delay of 6 to 12
years, in those cases the death sentence must be commuted to life imprisonment.

The Supreme Court laid down many factors like mental trauma, lack of legal aid, and age of
convict etc. which can be used as a ground for challenging the order of clemency, also the court
observed that these power are repose with highest dignitaries i.e. the President or the
Governor of a State, as the case may be, and there are no words of limitation indicated in either
of the two Articles and they may grant remission is an act of grace and humanity in appropriate
cases i.e. distinct, absolute and unfettered in its nature.

So, India, now the court had laid down the basic grounds on which the judicial review can be
filed against the order of clemency, and these grounds had diluted the clemency power of the
president and now it is more guided by rule of law rather than discretion of authorities.

Limelight Cases apropos to Clemency Power

The clemency power is generally said to be unswayed by other wings of government; however,
in amid of Nibhaya Case proceedings, the petition of Mr. Vinay Sharma – a death-row convict
had raised the question on the way clemency power is used India.[48] This petition was
challenging the rejection of Mercy petition.

One of the arguendo the petitioner referred to the court was, the cases which involve ‘public
sentiments’ is influencing the ‘aid and advice of ministers’ as done in the present case which led
to the rejection of petition on vitiated biasness.

Now, this arguendo was made on the ground that since many other Mercy petitions made prior
to Nirbhaya cases are still pending then why ministries are concerned with the present petition
so much.

This argument had raised many doubts in the mind of people since it’s a true factum. As per the
President’s Secretariat website, the cases which were in limelight had been decided briskly.[49]
For an instance, in the case of Md. Ajmal Kasab in 2012, he placed the application and in 2012
only, it got rejected.[50]

So, the way in contemporary time, the way President Clemency Power is used in India, it can be
said that the ‘aid and advice of Council of ministers’ is affecting the sacrosanct clemency power
if the things go in the same way, it may become a vote bank politics.

Conclusion

On analyzing the clemency power of three different jurisdictions it can be articulated, that
there are certain issues with the clemency power in India which has to be resolved for the sake
of Justice.

Recommendations as per the recent issues:

1. The clemency power in India must be made independent and the aid and advice of
ministers must be detached from this process, so that independence can be maintained
while deciding the petition. This will require amendments in the Constitution under
concerned Articles.
 2. There must be a proper procedure that has to be followed in picking up cases, granting
pardon/ rejecting pardon. If a proper and transparent procedure is followed in
acceptance and rejection of the petition, then no doubts on the application of this
power will arise.

3. ‘Justice Delayed is Justice denied’, this phrase, unfortunately, suits to the clemency
power in India, since there are many instances where President secretariat had taken
more than 10 years in replying the petition.[51] In case of Dharam Pal the mercy
petition was made before the president in 1999 and got rejected in 2013. It took more
than 13 years for finality. If the petitions would take such a long time to be settling the
matter, then clemency power will be more of denial to justice rather than path to
Justice. So this process needs to be organized and a timeline must be set up for disposal
of Mercy petitions.

So, the clemency power exists in all three countries, irrespective of the form of government
they have adopted and considered it as a paramount, however in India, the cases which involve
public sentiments, are hampering this sacrosanct power of clemency so, State must create a
system governed by rule of law and not by public sentiments, through which the clemency
petitions must be decided and the fair and equitable justice may prevail in the society.

Execution, Suspension, Remission And Commutation of

Sentences UNIT 2
Introduction

In the country, there are various constitutional and statutory provisions which suspend, remit
or commute sentences, given to the convict. Under the Indian Constitution, 1950, Article
72 and Article 161 empower the Governor and the President to grant pardon, suspend, remit or
commute the sentence. Meanwhile in the Criminal Procedural Code, 1973, there is a whole
Chapter XXXII dedicated to the suspension, remission and commutation of sentence.

Object and scope of the topic

The power to remit, suspend or commutate a sentence is exercised by the head of the state.
The executive can show mercy on the convict by way of remission, suspension or commutation
etc. The basic purpose of the suspension, remission, commutation and other forms of showing
mercy, is to take into consideration certain aspects of the case which do not arise during the
proceedings in the court of law. Just like the other Chapters of CrPC, this is applicable to the
whole of India.
Execution of sentence of death
Execution of order passed under Section 368

Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence without
the confirmation of the High Court, till that time the convict has to be in jail custody. The High
Court, under Section 368 of the CrPC, looks into the case. The High Court can:

• Confirm the sentence given by the Session Court.

• Annul the conviction and convict the accused of the same charges as that of the Session
Court or may order for fresh proceedings on the same or altered charges.

• May acquit the person, as the time for the appeal has not lapsed yet or the appeal has
been disposed of.

Any order received by the Session Court from the High Court has to be executed by the Session
Court by way of issuance of a warrant. (Section 413 of the CrPC).

Execution of sentence of death passed by High court

Under Section 414 of the CrPC, if the High Court, passes the order of death sentence in appeal
or revision, the Session Court has to carry on the order by issuing a warrant.

Duty of the jail superintendent in certain cases

When the High Court certifies to the Sessions Judge, any information regarding the
confirmation, annulment of charges of the accused in the case that was sent by way of an
appeal or revision, the Session judge will send a warrant to the Superintendent of Jail of which
the prisoner was originally committed. If the prisoner is transferred to another jail, then, in that
case, the Superintendent of Jail has to send back the warrant to the Sessions Judges who in turn
will give the warrant to the Superintendent of the Jail in which the prisoner is transferred.

In case of alteration of the charges by the appellate courts by way of an appeal or revision, the
same would be informed to the Superintendent of Jail to which the prisoner is committed. Even
in the case of immediate release of the prisoner from the jail, the Sessions Judge by way of a
warrant would inform the Superintendent of the Jail. the superintendent after such execution
will give the original warrant, duly filled to the district magistrate in which the trial was held.

Postponement of execution of death sentence

In case of appeal to the Supreme Court

Under Section 415 of the CrPC, 1973, the High Court may order for the postponement of the
execution of death sentence, if the case has been sent to the Supreme Court for appeal (Article
134 of the Indian Constitution). The postponement would be until the time for preferring such
appeal has been lapsed or the appeal has been disposed of, altogether.

If the death sentence has been confirmed by the High Court, the person so sentenced may ask
the High Court, by way of an application for the grant of a certificate under article 134 or 132 of
the Indian Constitution. The High Court has to postpone the execution of the death sentence
until such demand is disposed of by the High Court or such certificate of appeal has been
granted before the time of considering such appeal by the Supreme Court has not lapsed.

When the death sentence has been confirmed by the High Court, but the High Court is satisfied
that the person so sentenced intends to file a Special Leave Petition to the Supreme Court
under Article 136 of the Indian Constitution. The High Court will order the postponement of the
execution of the death sentence till the time which is reasonable for the person who is
sentenced, to file such appeal in the Supreme Court.

Postponement of capital sentence on a pregnant woman

Under Section 416 of the CrPC, if the woman who is sentenced is found to be pregnant, then
the High Court, in that case, can postpone the sentence or if it deems fit, the High Court can
also commute the sentence to life imprisonment.

Place of imprisonment

The State Government unless provided has the power to direct the place of imprisonment for
any person who is convicted under CrPC.

Moreover, if the person who is convicted under the provisions of CrPC, is confined in the civil
jail, then the magistrate of the court shall order that the person so convicted, should be shifted
to a criminal jail. However, if the person who was transferred to the criminal jail from the civil
jail, will be sent back to the civil jail unless-

• Three years have lapsed, the person, in this case, shall be released under Section 58 of
the CPC, 1908 or Section 23 of the Provincial Insolvency Code.

• The which ordered the imprisonment of the person in the civil jail orders the officer in
charge to release of the convicted person under Section 58 of CPC or Section 23 of the
Provincial Insolvency Code.

Execution of sentences of imprisonment

Under Section 418 of the CrPC, a person who is imprisoned for life or for terms other than
those mentioned in Section 413 of the CrPC, the court passing such sentence has to give a
warrant to the place where the person has to be confined unless such person is confined to
such place. However it must be the person who is imprisoned till the court is rising, then there
is no need to forward a warrant to the jail and the person shall be confined as per the direction
of the court.

Under Section 418(2) of the CrPC, if the accused is not present in the court at the time when he
is sentenced to such imprisonment, then, in that case, the court has to order for the arrest of
that person, by way of an arrest warrant, for forwarding him to jail or any other place where he
shall be confined and the sentence will start from the time of arrest of the accused.

In the case of Ishwarbhai Hirabhai Churana vs the State of Gujrat, this Section is held to be
mandatory. Moreover, under this Section, the court also owes a duty to ensure that the
sentence is executed, otherwise, the accused may avoid it.

The warrant issued is non – bailable, as it empowers the authority to arrest the person, after
the issuance of this warrant. Such a warrant is necessary in case the sentence was pronounced
in the absence of the accused.

A warrant for the execution of sentence of imprisonment

Under Section 419 of the CrPC, the warrants for the execution of the sentence of imprisonment
has to be directed to the in-charge of the jail or of any place in which the accused is to be
confined. But if the person is to be confined in the jail, then the warrant needs to be given to
the jailor.

Execution of the sentence of fine

A warrant for the levy of fine

When the court sentences to levy the fine on the offender, it can recover it through either or
both of these methods

• Issue of warrant for the levy of amount through the attachment of the movable
property of the offender.

• Issue of a warrant to the district collector and order him to collect it as an arrear of land
revenue accruing from a movable or immovable property or both. The collector, in this
case, shall collect the arrears of revenue as per the prevailing laws with respect to the
collection of revenue in the country. The warrant here will only serve the purpose of a
certificate.
It is important to note that in case it is mentioned that there shall be imprisonment if default of
payment happens, and if the offender has already served the default sentence, then no court
shall issue such warrant, unless there are some special circumstances which have to be
recorded in writing, or if there is an order for the payment of compensation of fine that arose
as per the provisions of Section 357.

The state government can make rules in regards to how the execution of the recovery of the
fines would take place and the summary claims made by a person other than the offender
himself would be considered accordingly.

No such warrant shall be executed by the arrest or detention of the person in the prison.

Effect of such warrant

The court shall order the attachment of property for the recovery of fines within the local limits
of its jurisdiction, however, it could order such attachment outside its jurisdiction too if it is
endorsed by the District Magistrate of the area in which the property to be attached is present.

A warrant for the levy of fine issued by a court in any territory to which this Code does not
extend

If the offender has been sentenced to pay the fine in the territory where this code does not
apply, then the court would issue a warrant to the District Collector of the area where the code
applies and order him to collect the fine by way of arrears of revenue. This warrant shall be
treated as if it is issued under Section 421 of the Code and all the conditions would apply
accordingly.

Suspension of execution of the sentence of imprisonment in default of payment of fine

When the offender has been sentenced to fine only and in case of default of payment he shall
be imprisoned, and if the fine is not paid then:

• The order that the fine shall be made in full within 30 days of such order or in
instalments in which the first instalments shall be made within 30 days of such order
and the next instalments within the intervals of not more than 30 days.

• The court may order the suspension of imprisonment order, if the offender gives a bond
with sureties or not, depending upon the court, for the payment of the fine in full or in
instalments. If the offender fails to furnish the fine at the latest date on which such
instalments has to be made, then the court shall order the execution of the
imprisonment order.
 • This shall also apply in the case where the order for the payment of money has been
made for the non- recovery of which imprisonment may be made. And if the person fails
to furnish a bond for the payment of the fine, the court may order the execution of the
imprisonment immediately

General provisions regarding the execution

Who may issue a warrant?

Under Section 425, every warrant which is issued for execution is to be given by the Magistrate
or the Judge or Magistrate who passed the sentence or by their successor in-charge.

The sentence on an escaped convict

If a sentence of death, life imprisonment or fine is passed under the provisions of this code, on
an escaped convict, then the execution of such sentence should take effect immediately.

When the sentence is passed on the escaped convict then:

• When this sentence is more severe than the previous sentence from which the convict
escaped, then the sentence shall take place immediately.

• If the present sentence is less severe than the sentence from which the convict escape
then the accused has to serve the term which is remaining of the sentence he escaped
from.

• The sentence of rigorous imprisonment will be more severe than the imprisonment of
the simple nature.

The sentence on offender already sentenced for another offence

If a person has been previously convicted for a sentence and then is subsequently convicted for
another, then the person has to serve his former punishment first and then will serve the
punishment sentenced later. Or if the court orders that both the punishment are to be served
concurrently. The punishment could be imprisonment or imprisonment for life. It is also to be
noted that where a person who has been sentenced to imprisonment by an order
under Section 122 in default of furnishing security is while undergoing such sentence,
sentenced to imprisonment for an offence committed prior to the making of such order, the
latter sentence shall commence immediately.

However, if a person is already sentenced to life imprisonment and then subsequently is

punished for a term or for life imprisonment, then the former sentence would run concurrent
to the latest imprisonment.
Period of detention undergone by the accused against the sentence of imprisonment

Where an accused is serving a sentence, other than the one on the default of payment of fine,
and the term of detention undergone by him during the investigation and trial of the same case
shall be set off against the term imposed on him from such conviction. The person shall be
liable only for the term of imprisonment left if in case the sentence of imprisonment is given to
him.

In case of a sentence given under Section 433A, such period of detention shall be set off against
fourteen years referred to in that Section.

But nothing in Section 426 and Section 427 shall be the reason to excuse any person from the
term he is sentenced to in his former or subsequent conviction.

When an award of imprisonment in default of payment of a fine is added to a substantive

sentence of imprisonment and the person undergoing the sentence is after its execution to
undergo a further substantive sentence or substantive sentences of imprisonment. In this case,
the sentence accruing to the default of payment of fine should be served by the person only
after he has undergone the subsequent sentences.

Return of warrant on execution of sentence

When the sentence has been executed fully, the officer executing such a sentence will have to
return the warrant to the court which has issued it. The warrant that is returned has to be
undersigned by the respective officer. The method of execution of the sentence must also be
specified by the officer in charge.

Money ordered to be paid recoverable as a fine

Any money which is payable (other than fine) under the provision of this act, and the method of
recovery of such money is not expressly given in the Code, then it shall be collected in the
manner as if it is fine.

It is to be noted that Section 421 shall, in its application to an order under Section 359, by virtue
of this Section, be construed as if in the proviso to Sub-Section (1) of Section 421, after the
words and figures “under Section 357”, the words and figures “or an order for payment of costs
under Section 359” had been inserted.

Suspension and remission of sentences

Constitutional provisions
The Constitution of India, vests a large amount of sovereign power in the President and the
Governor. Centre and the State are governed in the name of President and Governor
respectively. Under Article 72 of the Indian Constitution, the President has the power to
pardon, remit, suspend or commute any sentence.

Under Article 72, the President has the power to pardons, reprieves, respites or remission of
punishment or to suspend remit or commute the sentence of any person convicted of any
offence:

• In cases where the punishment is given by the court-martial. The Governor’s power to
remit, suspend or commute the sentence under the laws of the State, shall be given
precedence.

• In cases where the power of executive extends.

• In cases where the punishment is a death sentence.

Similarly, under Article 161 of the Constitution of India, these powers are conferred on the
Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend,
remit or commute the sentence, which is given on the basis of the laws prevalent in the State,
to which the executive power of the State extends.

The difference between the pardoning power of the President and that of the Governor is that
the Governor does not enjoy the power to grant pardon to a death sentence.

However, this power of the President is not absolute and depends on the consultation with the
council of ministers. This is not present in the Constitution but practically this process is
followed. Further, the Constitution does not provide for any mechanism to check the legality of
the decision taken by the President and the Governor while exercising their mercy power.
However, in the case of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway is
provided for judicial review of the mercy granting power of the President and the Governor to
rule out any sort of arbitrariness.

Suspension or remission of sentences

The suspension is the stay or postponement of the execution of the sentence. In remission, the
duration of the sentence is reduced, without changing the nature of the sentence. Remission
and suspension differ to a large extent. In remission, the nature of the sentence is remained
untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
For example, a person sentenced for a term of two years, his sentence is now reduced to one
year. The effect of the remission is that the prisoner is given a certain date on which he shall be
released and the eyes of the law he would be a free man. However, in case of breach of any of
the condition of remission, it will be cancelled and the offender has to serve the entire term for
which he was originally sentenced.

The procedure followed is given under Section 432 of CrPC, 1973. The government would ask
the opinion of the court which gave such a sentence. The court would revert with proper
records. The government can grant or reject the application for remission and suspension if in
its view all the conditions necessary for such a grant are not fulfilled. the offender may if at
large, be arrested by any police officer without a warrant and is to undergo the unexpired
portion of the sentence. The power of remission is wholly an executive action. There is no law
as such to question the legality of this action, but the government should use this power fairly
and not in an arbitrary manner. However, the court must consider the limitation provided
under Section 433A of the CrPC, 1973. The power of remission and suspension should not in
any way interfere with the conviction of the court, it should affect the execution of the
sentence.

Commutation of sentence

In contrast to Suspension and Remission, which only affect the duration of the punishment
without interfering with the nature of the punishment, Commutation, on the other hand,
changes the nature of the punishment and converts it into a less severe form of punishment.

There is nothing to restrict the government to commutate a sentence, even if it is as low as a

fine. Under Section 433 of the CrPC, the appropriate government gets the power to commutate
the sentence in an appropriate case. Various sentences are eligible for commutation, one of
them is death sentence i.e.mercy plea.

• Death sentence to any other punishment provided in the IPC.

• Imprisonment for life to any other imprisonment not exceeding fourteen years or fine.

• Sentence of rigorous imprisonment for simpler imprisonment which the person has
been sentenced or a fine.

• Sentence for a simple sentence to a fine.

Commutation of death sentence has always been in the controversy, it raises an issue regarding
the basic human rights of the accused and on the other hand the impact of the grave crime on
the society. Section 433 of the CrPC gives the power to the government to commutate the
death sentence to a simpler sentence.

Most of the convicts of the death sentence, get their sentence reduced to 14 years of life
imprisonment in accordance with the provisions of CrPC.
Restriction on powers of remission or commutation in certain cases

Section 433A of the CrPC puts a restriction on the power of the President and the Governor
that they can’t commutate the death sentence to less than 14 years of life imprisonment. In
absence of any order under Section 51 of the IPC or Section 433A of the CrPC, the convicts are
not released even after the expiry of 14 years of imprisonment.

Moreover, remission can be granted under Section 432 of the CrPC in case of a definite term of
sentence. The power is to grant “additional” term of imprisonment which is over and above the
remission granted to convict under the jail manual or statutory rules. In case of an indefinite
sentence, like that of life imprisonment, may remit or suspend the sentence of the person but
not on the basis that such imprisonment is arbitrary or on the assumption that it is for twenty
years.

Concurrent power of the Central Government in case of death sentences

Under Section 434 of the CrPC, it is stated that the powers under Section 432 and Section 433,
which are given to the State government, can be exercised by the Central government in case
of a death sentence.

State government to act after consultation with the Central Government in certain cases

Under Section 435 of the CrPC it is stated that the power given to the state government to
remit or commutate a sentence in an offence:

• Which is investigated under the Delhi Special Police Establishment or by any other
agency which is constituted under any Central Act other than this Code.

• Which involves misappropriation or destruction of, or damage to any property

belonging to the Central government.

• Which was committed by the person who is working under the Central government and
was discharging his official duty.

Such offences, as mentioned above, shall not be discharged by the state government except
after the consultation of the central government. Moreover, no order of remission,
commutation, or suspension by the state government shall apply where the executive power of
the Central government also extends, or where the terms of imprisonment of a person have to
run concurrently. Such orders will have effect only where the central government has passed
the same sentence with regard to the subject matter on which the executive power of the
centre extends.
According to the 41st Report of the Law Commission of India, it was stated that there are some
matters on which the centre is vitally concerned although on those subject matters the laws of
the State government would apply. It is thus necessary that the central government should
have a say on those matters and the state government should work only in consultation of the
central government otherwise the administration of law and justice would be very difficult for
the central government.

Conclusion

The sentence awarded by the judiciary to an offender can be remitted, suspended or

commutated by the executive action. The provisions of the Constitution and Criminal Procedure
Code, 1973, gives various powers to the President and the Governor to alter the sentence
awarded to the offender. This executive power has no legal check but after the few judicial
cases, a small window for the judicial review has been available.

Remission in basic terms means to reduce the duration of the term of the sentence.
Suspension, on the other hand, means to postpone the sentence without changing its duration.
The above two do not interfere with the nature of the sentence. Commutation, in contrast,
changes the nature of the punishment and turns it into a less severe one.

There are also various matters on which the state has to pass sentence in the consultation of
the Central Government as the latter is vitally concerned with those subject matter. Under the
CrPC, separate provisions are present for pregnant women.

Inchoate offences under IPC UNIT 2

Introduction

We all know that all crimes are punishable by the law. But what if the crime was not committed
completely? Can we still say that an offence has been committed? Interestingly, the answer to
such questions is yes. Even incomplete crimes are punishable. Such offences are known as
Inchoate Offences. We come across the terms like ‘attempt to murder, conspiracy, attempt to
suicide, or abetment to murder’. These terms are related to Inchoate offences. They are based
upon the thought that “Prevention of crime is better than the punishment of crime”. Thus, it
intends to stop the crime from the very beginning.

What are Inchoate offences

Inchoate offences refer to “incomplete offences”. In a literal sense, the word inchoate means
‘unfinished’ or ‘underdeveloped’. These acts are not complete offences as they are performed
in the process of the commission of the final crime. It helps or aids in the final crime. For
offences, there are 2 most essential elements: Mens rea, which means a guilty intention to
commit a crime and Actus Reus, which means the actual commission of the act. In this sense,
inchoate offences are incomplete offences as they only fulfil the mens rea aspect and not the
Actus reus element of the crime.

In such offences, it is not the main crime for which the person is punished. It is the steps taken
in order to commit the crime which is held illegal and hence, punished. Here, the act is not
considered as serious as the final crime which was intended to be committed by the person and
that is why the punishment for such offences is not as strict as the real offence. For instance,
Punishment for Murder under IPC Section 302 is more strict than punishment for attempt to
murder under IPC Section 307.

Also, these inchoate offences relate to some serious offence. For example Attempt to Murder,
Abetment to suicide, and criminal conspiracy. Thus, they are not interpreted in isolation. These
inchoate offences relate to mainly 3 offences namely attempt, abetment, and conspiracy.

Historical development

The presence of Inchoate offences was not much in the earlier times. However, with the change
in time, the English jurists started to talk about the inclusion of such offences in the law. The
need for this started as a precautionary method to stop the commission of gross crimes in
society. In a simple sense, they believed in the prevention of the actual crime by making the
step taken for the furtherance of a crime as an offence. This started from the 16th Century and
then the development of the inchoate offence started taking place.

Earlier it was restricted only to attempt to commit a crime. However, with the passage of time
other concepts like abetment and conspiracy also developed.

In IPC, all these inchoate crimes were included since 1860. But, the new concept of criminal
conspiracy was added in the year 1913 by the inclusion of chapter V A in the IPC of 1860. The
main motive to include these offences was to prevent the crime from the initial stage itself.

Types of Inchoate crimes

Let’s discuss various types of crimes which fall under Inchoate crimes:

Abetment
When a person doesn’t commit a crime himself but instead persuades the other person to
commit the crime, then such offences are termed as abetment. This offence is covered in
chapter v of the Indian Penal Code of 1860. Section 107 and Section 108 of the IPC relates to
the meaning of abetment. As per these sections, any person abates a doing of a thing when he
instigates, engages or aids by any act in the doing of a thing. For instance, A assists or aids B in
the murder of C, then A is liable for abetment.

In abetment, the act of instigating, encouraging or aiding is seen as actus reus and the intention
behind doing this relates to mens rea. Thus, abetment satisfies both elements needed to be
called an offence. However, it is important that the action of instigating, encouraging, or aiding
should clearly show that the person has the intention to commit the crime.

Abetment by Incitement

This is a part of abetment where the person incites or supports the commission of a crime.
However, it is necessary to prove that the person wilfully did such an act. Also, mere association
with the criminal doesn’t mean the person is involved in abetment of the crime.

Abetment by Conspiracy

Conspiracy and abetment have been mentioned in different sections of the IPC. However,
abetment of conspiracy has a smaller scope than a criminal conspiracy. A person may be held
liable for abetment to conspiracy only after the offence takes place. However, as per Section
120 A of IPC, conspiracy can take place with a mere agreement between parties to commit a
crime.

Abetment by illegal omission

In this type of abetment, the person abets the commission of crime through not only non-
interference but also by not interfering in matters in which he has a legal obligation to
intervene.

For instance, A, a senior policeman, left his police station during the shift and the constables
attacked the prisoners and abused them. Then A would be liable for abetment by illegal
omission.

Abetment through assistance

A person is held liable for this type of abetment when he helps in procuring or supplies an item
which aids in the commission of the crime. Thus, all the above mentioned are different types of
abetment and forms a part of abetment offence as a whole.

Attempt
An attempt has not been defined directly in the Indian Penal Code,1860. However, chapter
XXIII of the IPC mentions the punishment to attempt an offence with imprisonment or life
imprisonment as the case may be. For a Crime to be committed, there are 4 stages:

• Idea or Intention to commit Crime

• Preparation for committing the Crime

• Attempt to Crime

• Actual Commission of the Crime

Thus, here we are discussing the third stage i.e Attempt. In a simple sense, it means to direct
movement towards committing the crime after preparation has been done. However, the
actual commission of the crime doesn’t take place. Attempt to Crime is also an offence.

For instance, A, a person intends to kill B. He shoots at B but misses the target and hence the
actual crime of murder or culpable murder doesn’t take place. In such case, A will be charged
with the offence of Attempt to Murder under Section 307 of the IPC.

The IPC deals with the attempt in 3 different ways:

• In some cases, the commission of the offence and its attempt are both dealt with the
same section and same punishment. For example, Sedition under Section 124 A of the
IPC.

• In some cases, they are treated as separate offences and thus are punished accordingly.
For example, Attempt to Murder under Section 307, Attempt to Culpable Homicide
under Section 308 and Attempt to Suicide under Section 309.

• All other offences which are not covered by the above 2 categories. This is provided
in Section 511 of the IPC, where it mentions the punishment of life imprisonment or
simple imprisonment for committing such offence.

Conspiracy

A conspiracy takes place when parties agree to commit an illegal act and take steps to complete
the crime. This is different from an attempt in the sense that a person can be charged with both
conspiracy to commit the crime and for the crime itself if the commission of the crime is
successful.

Criminal Conspiracy
In the Indian Penal Code, criminal conspiracy is mentioned in chapter V in the section 120
A and 120 B. It states that the act should be committed by 2 or more persons and there should
be an agreement between them to commit an illegal act or a legal act by illegal means. This is
an inchoate offence as does not require the completion of the crime.

For example, A and B conspire together to commit the murder of C. But they are not able to kill
C. In this case, A and B will be charged with the offence of criminal conspiracy even though the
crime did not take place. Thus, these were the main inchoate offences namely Abetment,
Attempt, and Conspiracy.

The proximity rule

The Proximity rule is used in finding the liability of the defendant in inchoate offences. This rule
means that the act or series of acts done in order for the commission of the substantive offence
should be proximate to the intended offence, then only it can lead to liability on the part of the
defendant.

For example, in the case R v. Taylor, the defendant lit a matchstick near a haystack to destroy it
but extinguished a fire when he realised that someone was looking at him. The defendant was
prosecuted because his act was proximate to the crime. If he wouldn’t have lit the matchstick
then the liability for the attempt to commit the crime would not be present in the case.

Defences to inchoate crimes

There are few defences available to the person charged with the inchoate offence. These
defences vary in different jurisdictions. These defences are mentioned below-

Abandonment

In this defence, the person states that he had abandoned his effort to perform the crime.
Although he might have been involved in planning, he did not prepare or attempt to commit
the crime. In order to prove this defence, the person has to show that he had voluntarily and
completely abandoned his efforts towards committing the crime. This can be done by showing
that he had stopped working to commit the crime, or tried to stop the crime while it was
ongoing, or tried to stop other people involved in such activity with him.

For example, a person plans to commit burglary with a few other men involved with him.
Preparation for committing the act is completed. However, after this stage, the person decides
to abandon from committing the act and also persuades others involved to stop in their act. But
they don’t agree, as a result, he reports to the police. In such a case, the person can take the
defence of abandonment as it can be inferred from the facts and the activity of the defendant
that he had actively abandoned himself from the crime.
Impossibility

As the name suggests, the defendant can claim the impossibility of conducting the crime as a
defence. This defence has seen major changes in various places. These impossibilities can be on
two grounds-

Legal Impossibility

Here, the defendant claims that the act that he intended to commit or the act for which he
made an attempt is actually not a crime according to law, then the defence of legal
Impossibility can be taken.

For instance, a hunter shoots for hunting an animal but it hits another person. Here, there is no
intention to hit the other person. Thus the hunter cannot be charged with attempt to murder
but instead with some other offence.

Factual Impossibility

Here, the act of the defendant becomes impossible to commit crime due to the situation of the
case. In this, circumstances develop in such a manner that crime cannot be committed.

For example, a person plans to demolish a property but that property is destroyed the next day
due to natural calamity. Here the commission of the act has become impossible as the property
has already been destroyed. Here, the situation became such that actual crime was not possible
to be committed. However, this defence is not accepted everywhere as the courts think that
the person still had the intention to commit the crime.

Conclusion

Thus, many offences are punishable even if the actual crime doesn’t take place. These include
the attempt, conspiracy, and abetment. With the change in time, the need to add more
subjects to inchoate offences is increasing. The main reason for this is to prevent even the
thought of committing the crime. The concept of such offences was developed in recent times
and as time is progressing, more and more improvements are being added to criminal
jurisprudence for achieving a peaceful society.

General Exceptions under the IPC UNIT 3

In another landmark judgment, the Supreme Court criminalized sex with a minor wife aged
between 15 and 18 years. The court overturned an exception in rape law which allowed a
husband to have sex with his wife aged 15 years and above regardless of consent, including
punishment. NGO Independent Thought filed a PIL in court which paved the way for this ruling
and this rule will be applicable even in the case of Muslim Personal law. Criminal law deals with
such type of cases in India which are assorted in different sections depending upon their
nature.

The Criminal law covers various punishments which vary from case to case. But it is not always
necessary that a person gets punished for a crime which he/she had committed. The Indian
Penal Code (IPC), 1860 recognizes defences in Chapter IV under “General Exceptions”. Section
76 to 106 covers these defences which are based on the presumption that a person is not liable
for the crime committed. These defences depend upon the circumstances prevailing at that
point of time, mens rea of person and reasonability of action of that accused.

Object of Chapter IV

Every offence is not absolute, they have certain exceptions. When IPC was drafted, it was
assumed that there were no exceptions in criminal cases which were a major loophole. So a
separate Chapter IV was introduced by the makers of the Code applicable to the entire concept.

• Exceptional circumstances in which an individual can escape liability.

• Making Code construction simpler by removing the repetition of criminal exceptions.

Burden of Proof

• Generally, Prosecution has to prove its case beyond reasonable doubt against the
accused.

• Before the enforcement of the Indian Evidence Act 1882, the prosecution had to prove
that the case does not fall under any exception, but section 105 of Evidence act shifted
the burden on the claimant.

• But in exceptions, as per Section 105 of Evidence Act, a claimant has to prove the
existence of general exception in crimes.

The fabric of Chapter IV

• Section 6 of IPC
“Throughout this code, every definition of offence, every penal provision and every illustration
of every such definition or penal provision, shall be understood subject to exceptions contained
in the chapter titled General Exceptions”.

The General Exceptions are divided into 2 categories:

• Excusable Acts

• Judicially Justifiable Acts

Excusable Acts Justifiable Act

A mistake of Fact under section 76 An act of Judge and Act performed in pursuance of an order under
and 79. Section 77 and 78.

Accident under Section 80. The necessity under 81.

Infancy – Section 82 and 83. Consent under Section 87 – 89 and Section 90 and 92.

Insanity – Section 84. Communication under Section 93.

Intoxication – Section 85 and 86. Duress under Section 94.

Trifles under Section 95.

Private Defence under Section 96 – 106.

Excusable Acts

An Excusable Act is the one in which though the person had caused harm, yet that person
should be excused because he cannot be blamed for the act. For example, if a person of
unsound mind commits a crime, he cannot be held responsible for that because he was not
having mens rea. Same goes for involuntary intoxication, insanity, infancy or honest mistake of
fact.

A mistake of Fact under Section 76 and 79

Under Section 76: Act done by a person bound or by mistake of fact believing, himself to be
bound by law in included. Nothing is an offence which is done by a person who is or by reason
of a mistake of fact, not by mistake of law in good faith believes himself, to be, bound by law to
do such act. It is derived from the legal maxim “ignorantia facti doth excusat, ignorantia juris
non excusat”.
 • Example: If a soldier firing on a mob by the order of his officer in conformity through the
command of the law, then he will not be liable.

Under Section 79: Act done by a person justified or by mistake of fact believing, himself
justified, by law is included. Nothing is an offence which is done by any person who is justified
by law, or who by reason of mistake of fact and not mistake of law in good faith, believes
himself to be justified by law, in doing that particular act

• Example: A thought Z to be a murderer and in good faith and justified by law, seizes Z to
present him before authority. A has not committed any offence.

Case law for Section 79

In Kiran Bedi v. Committee of Inquiry, petitioner refused to deposed to the

beginning of the inquiry as she believed that she could depose only at the end of

the inquiry

Accident under Section 80

Includes an Accident committed while doing a lawful act. Nothing is an offence which is done by
accident or misfortune, without any criminal intention or knowledge in the doing of a lawful act
in a lawful manner by lawful means and with proper care and caution.

• Example: Suppose M is trying to shoot a bird with a gun but unfortunately the bullet
reflected from the oak tree causing harm to N, then, M will not be liable.

Case law for Section 80

In King Emperor v. Timmappa, a division bench held that shooting with an unlicensed gun does
not debar an accused from claiming defence under Section 81 of IPC. The appeal of acquittal
was dismissed and the order of trial magistrate was upheld. The court was of the opinion that
there is no reason why sentence awarded under Section 19(e) of the Indian Arms Act should be
enhanced. The respondent was liable under the provision but no more. He just borrowed a gun
for few minutes to kill as he thought a wild animal might attack him and his partners. The
application was dismissed regarding enhancement of sentence.

Infancy – Section 82 and 83

Section 82: It includes an act of a child below seven years of age. Nothing is an offence which is
done by a child under seven years of age.
 • Suppose a child below seven years of age, pressed the trigger of the gun and caused the
death of his father, then, the child will not be liable.

Section 83: It includes an act of a child above seven and below twelve of immature
understanding. Nothing is an offence which is done by a child above seven years of age and
under twelve, who has not yet attained sufficient maturity of understanding to judge the
nature and repercussions of his conduct during that occasion.

• Example: Suppose a child of 10 years killed his father with a gun in the shadow of
immaturity, he will not be liable if he has not attained maturity.

Case law for Section 83

In Krishna Bhagwan v. State of Bihar, Patna High Court upheld that if a child who is accused of
an offence during the trial, has attained the age of seven years or at the time of decision the
child has attained the age of seven years can be convicted if he has the understanding an
knowledge of the offence committed by him.

Insanity – Section 84

Act of a person of unsound mind. Nothing is an offence which is done by a person who at that
time of performing it, by reason of unsoundness of mind, is incapable of knowing the nature of
the act, or that he is doing what is either wrong or contrary to law.

• Example: A, who is insane or unsound, killed B with a knife, thinking it to be a fun game,
will not be liable for B’s death as he was not aware of the nature of act and law. he was
incapable of thinking judiciously.

Case law for Section 84

In Ashiruddin Ahmed vs. State, the accused Ashiruddin was commanded by someone in
paradise to sacrifice his own son, aged 4 years. Next morning he took his son to a Mosque and
killed him and then went straight to us uncle, but finding a chowkidar, took the uncle nearby a
tank and told him the story.

The Supreme Court opined that the accused can claim the defence as even though he knew the
nature of the act, he did not know what was wrong.

Intoxication – Section 85 and 86

Section 85: Act of a person incapable of judgment by reason of intoxication caused against his
will. Nothing is an offence which is done by a person who at the time of doing it, is, by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing what is either
wrong, or contrary to law, provided that the thing which intoxicated him was administered
involuntarily without his will or knowledge.

• Example: A drank alcohol given by a friend thinking it to be a cold drink. He became

intoxicated and hit a person on driving his car back home. He will not be liable as alcohol
was administered to him without his will and knowledge.

Section 86: Offence requiring a particular intent or knowledge committed by one who is
intoxicated. This applies to cases where an act done is not an offence unless done with a
particular knowledge or intent, a person who does the act in state of intoxication, shall be liable
to be dealt with as if he had the same knowledge as he would have had if he had not been
intoxicated, unless the thing which intoxicated him was administered to him without his
knowledge or against his will.

• Example: A person intoxicated, stabs another person under influence of alcohol which
was administered to him in the party against his knowledge or will, will not be liable. But
if that person had stabbed that person under voluntary intoxication, then he will be
liable.

Case law for Section 86

In Babu Sadashiv Jadhav case, the accused was drunk and fought with the wife. He poured
kerosene and set her on fire and started extinguishing the fire. The court held that he intended
to cause bodily injury which was likely to cause death under section 299(20 and sentenced h
under section 304, Part I of code).

Justifiable Acts

A justified act is one which would have been wrongful under normal conditions but the
circumstances under which the act was committed makes it tolerable and acceptable.

Act of Judge and Act performed in pursuance of an order under Section 77 and 78

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.

• Example: Giving Capital Punishment to Ajmal Kasab was done under the judicial powers
of judges.

Section 78: Act done pursuant to the Judgement or order of the 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 no jurisdiction to pass such judgment or order, provided the person doing the act in good
faith believes that the court had such jurisdiction.

• Example: A judge passing an order of giving lifetime jail punishment, believing in good
faith that the court has jurisdiction, will not be liable.

Necessity under 81

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 is 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.

• Example: A Captain of a ship turned the direction of the ship of 100 people in order to
save their lives, but harming the life of 30 people of a small boat, without any intention
or negligence or fault on his part. He will not be liable because necessity is a condition in
which a person causes small harm to avoid great harm.

Case law for Section 81

In Bishambher v. Roomal, 1950, the complainant Bishambhara had molested a girl Nathia.
Khacheru, Mansukh, and Nathu were accused related to father of the girl. The Chamars were
agitated and determined to punish Bhishambher. Rumal Singh, Fateh Singh, and Balwant Singh
intervened and tried to bring a settlement. They collected a panchayat and the complainant’s
black was blackened and given shoe beating. It was found by the court that accused had
intervened in good faith but the panchayat was having no authority to take such a step.

Consent under Section 87 – 89 and Section 92

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 which is likely to cause death or grievous hurt, is an offence by reason of any
harm which it may cause, or to be intended by the doer to cause, to any person, above 18 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 that risk of harm.

• Example: A and E agreed to fence each other for enjoyment. This agreement implies the
consent of each other to suffer harm which, in the course of such fencing, may be
caused without foul play and if A while playing fairly hurts E, then A, has committed no
offence.
Case law for Section 87

In Poonai Fattemah v. Emp, the accused who professed to be a snake charmer, induced the
deceased to believe him that he the power to protect him from any harm caused by the snake
bite. The deceased believed him and got bitten by the snake and died. The defence of consent
was rejected.

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.

Case law for Section 88

In R.P Dhanda V. Bhurelal, the appellant, a medical doctor, performed an eye operation for
cataract with patient’s consent. The operation resulted in the loss of eyesight. The doctor was
protected under this defence as he acted in good faith.

Section 89: Act done in good faith for the benefit of a child or insane person, by or by consent
of the 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

Section 92: Act done in good faith for benefit of a person without consent. Nothing is an
offence by reason of any harm which it may causes to a person for whose benefit it is done in
good faith, even without that person’s consent, if the circumstances are such that it is
impossible for that person to signify consent, or if that person is incapable of giving consent,
and has no guardian or other person in lawful charge of him from whom it is possible to obtain
consent in time for the thing to be done with benefit.

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,

1. if the consent is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
 2. 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

3. Consent of children, the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.

Case law for Section 90

In Jakir Ali v. State of Assam, it was proved beyond doubt that the accused had sexual
intercourse with the victim on a false promise of marriage. The Gauhati High Court held that
submission of the body by a woman under fear or misconception of fact cannot be construed as
consent and so conviction of the accused under sections 376 and 417 of the Indian Penal Code
was proper.

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.

Communication under 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.

• Example: A doctor in good faith tells the wife that her husband has cancer and his life is
in danger. The wife died of shock after hearing this. The doctor will not be liable because
he communicated this news in good faith.

Duress under Section 94

Act to which a person is compelled by threats. Except murder, and offences against the state
punishable with death, nothing is an offence which done by a person compelled to do it under
threats, which, at the time of doing it, reasonably cause the apprehension that instant death to
that person will otherwise be the consequence, provided the person doing the act did not of his
own accord, or from reasonable apprehension of harm to himself short of instant death, place
himself in the situation by which he became subject to such constraint.

• Example: A was caught by a gang of dacoits and was under fear of instant death. He was
compelled to take gun and forced to open the door of house for entrance of dacoits and
harm the family. A will not be guilty of offence under duress.

Trifles under Section 95

Act causing slight harm is included under this section. Nothing is an offence by reason that it
causes, or that it is intended to cause, or that it is known to be likely to cause, any harm if that
harm is so slight that no person of ordinary sense and temper would complain of such harm.

Case law for Section 95

In Mrs. Veeda Menezes v. Khan, during the course of exchange of high tempers and abusive
words between appellant’s husband and the respondent, the latter threw a file of papers at the
former which hit the appellant causing a scratch on the elbow. SC said that the harm caused
was slight and hence, not guilty.

Private Defence under Section 96 – 106

Section 96: Things done in private defence.

Nothing is an offence in which a person harms another person in the exercise of private
defence.

Section 97: Right of private defence of body and property.

Every person has a right to private defence, provided under reasonable restriction under
Section 99.

1. Protecting his body or another person’s body, against any offence in which there is a
danger to life.

2. Protecting his or another person’s movable or immovable property, against any offence
like theft, robbery, mischief or criminal trespass or an attempt to commit theft, robbery,
mischief or criminal trespass.

• Example: A father, in order to protect the life of daughter from the attack of a thief,
shoots him in his leg. But the father will not be liable as he was protecting the life of his
daughter.

Case law for Section 97

In Akonti Bora v. State of Assam, the Gauhati High Court held that while exercising the right of
private defence of property the act of dispossession or throwing out a trespasser includes right
to throw away the material objects also with which the trespass has been committed.

Section 98: Right of private defence against the act of a person of unsound mind etc.

When an act which would otherwise be a certain offence, is not that offence, by reason of the
youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of
the person doing that act, or by reason of any misconception on the part of that person, every
person has the same right of private defence against that act which he would have if the act
were that offence.

• Example: A attempts to kill Z under influence of insanity but A is not guilty. Z can
exercise private defence to protect himself from A.

Section 99: Acts against which there is no right of private defence.

• There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or

• Attempted to be done, by a public servant acting in good faith under color of his office,
though that act may not be strictly justifiable by law.

• There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or

• Attempted to be done, by the direction of a public servant acting in good faith under
colour of his office though that direction may not be strictly Justifiable by law.

• There is no right of private defence in cases in which there is time to have recourse to
the protection of the public authorities.

• The harm caused should be proportional to that of imminent danger or attack.

Case law for Section 99

In Puran Singh v. State of Punjab, the Supreme Court observed that where there is an element
of invasion or aggression on the property by a person who has no right of possession, then
there is obviously no room to have recourse to the public authorities and the accused has the
undoubted right to resist the attack and use even force, if necessary.

Section 100: When the right of private defence of the body extends to causing death.

• Assault causing reasonable apprehension of death.

• Reasonable apprehension of grievous hurt.

• Committing rape

• Unnatural lust

• Kidnapping or abducting
 • Wrongfully confining a person in which that person reasonably apprehends the assault
and not able to contact public authority.

• Act of throwing or attempting to throw acid, causing apprehension in the mind that
assault will cause grievous hurt.

Case law for Section 100

In Yogendra Morarji v. state, the SC discussed in detail the extent and limitations of the right of
private defence of the body. There must be no safe or reasonable mode of escape any retreat
for the person confronted with imminent peril to life or bodily harm except by inflicting death.

Section 101: When such rights extend to causing any harm other than death.

If the offence be not of any of the descriptions enumerated in the last preceding section, the
right of private defence of the body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary
causing to the assailant of any harm other than death.

Case law for Section 101

In Dharmindar v. State of Himachal Pradesh, that onus of proof to establish the right of private
defence is not as onerous as that of a prosecution to prove its case. Where the facts and
circumstances lead to a preponderance of probabilities in favor of the defence case it would be
enough to discharge the burden to prove the case of self-defence.

Section 102: Commencement and continuance the right of private defence of the body.

The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to commit the offence though the offence
may not have been committed; it continues as long as such apprehension of danger to the body
continues.1

• Example: A, B, and C were chasing D to kill him in order to take revenge, but suddenly
they saw a policeman coming from another side. They got afraid and turned back to run.
But D shoots B in his leg, even when there was no imminent danger of harm. D will be
liable as there was no apprehension of death or risk of danger.

Section 103: When the right of private defence of property extends to causing death.

1. Robbery;

2. House-breaking by night;
 3. Mischief by fire committed on any building, tent or vessel, building, tent or vessel used
as a human dwelling, or a place for the custody of property;

4. Theft, mischief, or house-trespass, under such circumstances, as may reasonably cause

apprehension that death or grievous hurt will be the consequence if such right of
private defence is not exercised.

• Example: C Attempts to stab D maliciously while committing burglary in D’s house.

There is a reasonable apprehension in the mind of D that C will hurt him grievously, so in
order to save himself and property, C throttled D with a knife in his chest, causing
Death. C will not be liable.

Case law for Section 103

In Mohinder Pal Jolly v. State, the deceased worker and some of his colleagues were shouting
slogans for demands outside the factory. Some brickbats were also thrown by them which
damaged the property of the owner who fired two shots from outside his office room, one of
which killed the deceased worker. The court held that it was a case of mischief and the accused
will not get the defence of this section.

Section 104: When such right extends to causing harm other than death.

If the offence, the committing of which, or the attempting to commit which occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of
the descriptions enumerated in the last preceding section, that right does not extend to the
voluntary causing of death, but does extend, subject to the restrictions mentioned in section
99, to the voluntary causing to the wrong-doer of any harm other than death.

• Example: If A has committed criminal trespass in order to annoy B or hurt him, then B
will have the right to harm A in proportional manner, not causing death of the person.

Case law for Section 104

In V.C Cheriyan v. State, the three deceased along with other persons had illegally laid a road
through private property of the church. A criminal case was pending against them. The three
accused belonging to church put up barricades across this road. The deceased was stabbed by
accused and Kerela HC held that private defence does not extend to causing the death of a
person in this case.

Section 105: Commencement and continuance of the right of private defence of property.

The right of private defence of the property commences when:

 • A reasonable apprehension of danger to the property commences. The right of private
defence of property against theft continues until the offender has effected his retreat
with the property

• Or, either the assistance of the public authorities is obtained,

• Or, the property has been recovered.

• The right of private defence of property against robbery continues as long as the,

• Offender causes or attempts to cause to any person death or hurt

• Or, wrongful restraint

• As long as the fear of instant death or

• Instant hurt or

• Instant personal restraint continues.

• The right of private defence of property against criminal trespass or mischief continues
as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as
the house-trespass which has been begun by such house-breaking continues.

• Example: Suppose a thief into the house of an individual, and attempts to hurt him
instantly with a knife, then that individual has the right to act in private defence and
harm that thief to save life and property.

Case law for Section 105

In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were removed illegally by a
person. Accused attacked the cartmen and that cartmen jumped off the carts and ran away
leaving sheaves. The accused still chased him and attacked him leading to death. The court held
him as guilty of offence.

Section 106: Right of private defence against deadly assault when there is a risk of harm to
innocent person.

If in the exercise of private defence against an assault, a person causes apprehension of death,
in which defender has no choice but harming an innocent person, his right will extend to that
running of risk. 4
 • Example: C is attacked by a mob who attempts to murder him. He cannot exercise his
right to private defence without firing on the mob. In order to save himself, he is
compelled to hurt innocent children while firing so C committed no offence as he
exercised his right.

Conclusion

So these were the general exceptions which are available to the accused to escape liability or
save himself from the offence committed. It may extend to even causing the death of a person
or harm an innocent person too depending upon the circumstances. The accused should also
have the right to be heard, keeping in view the democratic character of our nation. That’s why
these exceptions are provided so as to represent oneself in the court of law.

Culpable Homicide under Indian Penal Code UNIT 4

Introduction

Homicide is a term which originates from the Latin term ‘Homo’ means human and ‘caedere’
means killing. The act of homicide is an act that has been a part of human life since day 1. Early
men used to kill each other for food or creating dominance, the kings used to perform homicide
to win territories and now people kill each other in the sway of jealousy, greed, etc.

Homicide is one of the most grievous act a person can commit as it is the highest order of
bodily injury inflicted on a human being hence that’s why regulations regarding Homicide are
really grave, for instance, culprits are usually sentenced to life imprisonment or the death
penalty as these are the most extreme punishments given by the judiciary.

In India homicide is divided into two forms- Culpable Homicide (Section 299 of the Indian Penal
Code) and Culpable Homicide amounting to murder (Section 300 of the Indian Penal Code).
Both of these have a very minimal difference but these differences prove to be very crucial for
the legal system as the delivery of a fair judgment is dependent on these differences.

In this article, we’ll be discussing the third type of Unlawful Homicide, ‘Culpable Homicide’.
What is culpable homicide, what are the ingredients, difference between culpable homicide
and murder, punishment regarding it and certain landmark cases to prove our contentions?
Lawful and Unlawful Homicide

A culprit in a case of Homicide cannot always be culpable. This derives the notion of lawful
homicide where the accused had a valid reason to commit the crime. In these cases, the person
will not tend to be tried by the law and can also be exempted from the charges.

These can include death caused in self-defence or by mistake of fact or there was a bonafide
execution of the law etc. Hence Homicide can be lawful as well as unlawful. Lawful Homicide
may include justifiable and excusable homicide. Unlawful Homicide may include death by rash
and negligent act (Sec 304-A), suicide (Sec 309) or culpable homicide.

Culpable Homicide

As mentioned before culpable homicide is a type of unlawful homicide. Laws regarding culpable
homicide are enshrined in the Indian Penal Code 1862 (IPC). According to which, there are two
types of culpable homicides-

Culpable Homicide not amounting to Murder (Section 299 IPC)

It can be simply referred to as culpable homicide, this comes under the purview of Section
299 of The Indian Penal Code 1862 which states that:

An act done with the intention of causing death or causing such bodily injury which is likely to
cause death or having the knowledge that he can likely by his act cause death, he’ll be
committing the offense of culpable homicide.

Conditions

After bifurcating the definition, we get 3 conditions which have to be fulfilled to attract Section
299 of the Indian Penal Code these are-

1. The intention of causing death.

2. The intention of causing such bodily injury as is likely to cause death.

3. With the knowledge that he is likely by such an act to cause death.

Illustration

• A not knowing that D has a tumour in his brain, hits him hard on the head with a cricket
bat, with the intention of causing death or with the knowledge that death is likely to be
caused.

• D dies because of the bursting of the tumour.

 • A is liable for culpable homicide not amounting to murder.

Case Law

It was held in the case of Nara Singh Challan v. State of Orissa (1997) that Section 299 of the
Indian Penal Code is the genus and Section 300 of the Indian Penal Code is the species. Hence,
there are no independent sections regarding culpable homicide not amounting to murder it is
the part of Section 300 of IPC which defines Murder.

Herein, the court observed that:

“For deciding the proper punishment which is proportionate to the current offense, IPC has
divided culpable homicide into three degrees. First is the gravest form which is Murder it is
defined under section 300 of IPC, the second is the culpable homicide of the second degree
which is punishable under Section 304 part 1 of IPC and Third is the lowest degree of culpable
homicide which is punishable under Section 304 part 2 of IPC.”

Culpable Homicide amounting to Murder

It can be simply referred to as Murder, this comes under the purview of Section 300 of the
Indian Penal Code 1862 which states that:

Culpable homicide is murder, if the act is done with the intention of causing death or if it is
done with the intention of causing such bodily injury as is likely to cause the death of the
person or if the inflicted bodily injury is sufficient enough in the ordinary course of nature to
cause death or if there is knowledge involved that the act done is so fatal that in all probability
it can cause death or such bodily injury as is likely to cause death and commits such act without
any excuse.

Conditions

After bifurcating the definition, we get 4 conditions which have to be fulfilled to attract Section
300 of the Indian Penal Code these are-

1. The intention of causing death.

2. The intention of causing such bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused.

3. With the intention of causing bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death.
 4. The person committing the act knows that it is so imminently dangerous that it must, in
all probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.

Illustration

• X knows that Z has a tumour in his brain and he hits him again and again with a bat on
his head with the intention of causing death, and

• Z dies subsequently.

• X is liable for Murder.

Exceptions to Section 300 of the Indian Penal Code 1862

Culpable homicide amounts to murder when the act is done with the intention of causing death
but in the cases mentioned below this principle doesn’t apply. The following acts can amount to
culpable homicide not amounting to murder. Exceptions 1-5 in the (d) and (f) illustrations of
section 300 of the IPC define conditions when culpable homicide is not amounting to murder,
these are as follows-

• It is not culpable homicide amounting to murder if it is committed by a person who gets

deprived of the power of self-control and causes the death of someone because of a
grave and sudden provocation.

• It is not culpable homicide amounting to murder when the offender causes the death of
someone while exercises his right of private defense of person and property in good
faith

• It is not culpable homicide amounting to murder if a public servant causes someone’s

death while performing his duties and in good faith and he believes that his acts were
lawful.

• It is not culpable homicide amounting to murder if a person causes the death of

someone commits it in a sudden fight in the heat of passion upon a sudden quarrel

• It is not culpable homicide amounting to murder when a person suffers death with his
own consent when he is above 18 years of age.

Essential Ingredients

Culpable Homicide not amounting to Murder

According to the definition provided under Section 299 of the Indian Penal Code, there are
majorly 3 essential ingredients to prove that the person is liable for culpable homicide not
amounting to murder. These are-

1. The intention of causing death.

2. The intention of causing such bodily injury as is likely to cause death.

3. With the knowledge that he is likely by such an act to cause death.

Culpable Homicide amounting to Murder

According to the definition provided under Section 300 of the Indian Penal Code, there are
majorly 4 essential ingredients to prove that the person is liable for culpable homicide
amounting to murder. These are-

1. The intention of causing death.

2. The intention of causing such bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused.

3. With the intention of causing bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death.

4. The person committing the act knows that it is so imminently dangerous that it must, in
all probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.

Culpable homicide by causing the death of a person other than the person whose death was
intended

The notion of ‘culpable homicide by causing the death of a person other than the person whose
death was intended’ is enshrined in Section 301 of the Indian Penal Code which states that:

A person commits culpable homicide when he causes the death of another person while trying
to kill the other person. Here the intention of the person who killed or grievously hurt any other
person whom he didn’t want to kill or hurt is not considered.

Illustration

• Let’s consider, there was Mr A who was angry with Mr B as he took over his business.

• He plans to kill Mr B. In order to achieve that he Buys a gun.

 • He spots Mr B on the street. He takes out his gun and shoots Mr B.

• Accidentally the bullet deflects because of a pole and eventually kills Mr C.

• Now according to the law, Mr A has committed culpable homicide.

It is also regarded as the principle of transferred intent or transferred knowledge or doctrine of

the transfer of malice.

Through the perspective of Sec 299 and Sec 300 IPC

The law didn’t make any distinction between the cases where the person died whether his
death was intentional and unintentional. According to Section 299 and Section 300 of the
Indian Penal Code, there is nowhere mentioned that the intention to cause injury or death of
someone or knowing the consequences of the act is with respect to a particular person only.
Hence, a person who has shot someone intentionally but accidentally the bullet changes its
direction killing another person, the person who fired the shot is equally liable for the death of
the other person as he would have been for the person he intended to shoot.

Case Laws

This is not a new piece of legislation, it dates back to the British era. In the case of R. v
Latimer (1886) a person got into a fight and in course of the fight, to beat the man he took out
his belt and struck the belt but it rebounded and hit a lady, she was grievously injured. The
court held,

The defendant is to be held liable for the injuries inflicted on the woman ignoring the fact that
he had no intention to harm her. The mens rea has transferred to the woman from the man he
was going to hit with his belt.

This piece of legislation is so confusing that some courts tend to forget that this type of law
even exists, it is evident from the case of Rajbir Singh v. State of U.P..

Herein the Supreme Court came thrashing on the Allahabad High Court for not considering
Section 301 of the Indian Penal Code in the present case.

In this case, a girl died of a bullet which was fired on another person. The High Court stated in
its decision that there was mistake involved and there was no intention of the accused to kill
the girl.

The supreme court held that the intention of the accused should be ignored in the present
case. The court also held that the Allahabad High Court’s reasoning behind stating the act as an
accident is not to be sustained as their reasoning was erroneous. Ultimately he was held liable
for his actions.

Punishment

As we know there are two types of culpable homicide according to the Indian Penal Code 1862.
Culpable homicide not amounting to murder (Section 299 IPC) and culpable homicide
amounting to murder (Section 300 IPC). Hence there are two different provisions regarding the
punishment for both the offences mentioned in the Indian Penal Code.

Section 304 of IPC

Section 304 of the Indian Penal Code provides punishment for culpable homicide not
amounting to murder (Section 299 IPC), it states that whoever causes death with intention or
causes such bodily injury as is likely to cause death or with the knowledge that death is likely to
be caused because of the act, shall be liable for life imprisonment or imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine (Section
304(1) IPC).

Secondly, whoever causes death without the intention of causing death or such bodily injury as
is likely to cause death or doesn’t have the knowledge that his act could cause death shall be
sentenced to imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine(Section 304(2)IPC).

If the act which causes death is done without the intention of causing death but with the
knowledge that death is likely to be caused by such act, the person shall be sentenced to
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.

Case Law

In the case of Shanmugam v. State of T.N., it was held that offences under Section 304 can be
considered as cognizable, non-bailable and triable by the Court of Sessions. In this, there arose
a quarrel between the accused and the deceased In course of the quarrel the accused stabbed
the deceased with a spear in the abdomen and the chest resulting in the death of the victim
because of septicemia. The accused was sentenced to life imprisonment under part I of Section
304 of IPC.

If we see in this case that Exception 4 under Section 300 applies here. Hence, it would come
under Section 299 of the IPC. Part 1 of Section 304 was attracted because it was clear from the
facts that there was a clear intention to cause death or cause such bodily injury which is likely
to cause death.
Section 302 of IPC

Section 302 of the Indian Penal Code provides punishment for murder or culpable homicide
amounting to murder (as stated in Section 300 of IPC), it states that whoever commits murder
shall be liable for life imprisonment or death penalty and he shall also be liable for a fine too.

Death penalty under Section 302

However, death penalty can only be given in rarest of the rare case this was held in the case
of Bachan Singh v. State of Punjab wherein it was observed that when the court can avail the
recourse of life imprisonment then why the court has to go for such an inhumane punishment
like death penalty. The Indian Judiciary has defined certain conditions in which death penalty
could be used as a recourse these were laid down in the Machhi Singh And Others v. State Of
Punjab which are as follows:

1. When the murder committed is extremely brutal, ridiculous, diabolical, revolting, or

reprehensible manner which awakens intense and extreme indignation of the
community. For instance, setting someone’s house on fire with the intention to burn
them alive;

2. The magnitude of the crime is at a large scale which means causing multiple deaths;

3. When death is caused because of the caste and creed of the person;

4. When the motives of the accused were cruelty or total depravity; and

5. When the murder victim is an innocent child, a helpless woman or person (due to old
age or infirmity), a public figure, etc.

But it is still subjective to determine what is rarest of the rare and what is not. Hence it leaves
an ambiguity that in what cases can the death penalty be applied and with recent
developments in the Mukesh & Anr vs State For Nct Of Delhi & Ors (Nirbhaya case) where all
the accused were sentenced to death penalty, made this topic the epicenter of several heated
debates across the country, the major question raised is that like other countries why can’t
India sort to abolish the death penalty when there is a recourse like life imprisonment present
with the judiciary.

Illustrations

Section 299 IPC (Culpable Homicide not amounting to Murder)

 • A, dig a deep pit and cover it with grass and clay, with the intention of causing death or
with the knowledge that death is likely to be caused. B thinking it as a hard ground tries
to stand on it and dies. A is liable of Culpable Homicide not amounting to Murder.

• A paid a truck driver to slam his truck on the car of C, he did it with the intention of
causing death or with the knowledge that death is likely to be caused. C went to the
market to buy groceries. The truck crashes with his car, C dies. A is liable of Culpable
Homicide not amounting to Murder.

• A not knowing that D has a tumour in his brain, hits him hard on the head with a cricket
bat, with the intention of causing death or with the knowledge that death is likely to be
caused. D dies because of the bursting of the tumour. A is liable of Culpable Homicide
not amounting to Murder.

Section 300 IPC (Culpable Homicide amounting to Murder)

• X shoots Z with a shotgun on the point-blank range with intention to cause death, and Z
dies subsequently. X is liable of Murder.

• X knows that Z has a tumour in his brain and he hits him again and again with a bat on
his head with the intention of causing death, and Z dies subsequently. X is liable for
Murder.

• X starts firing a machine gun in a crowded mall with an intention of causing death, and
subsequently killing 10 people. X is liable for Murder

Exceptions of Section 300 IPC

1. X on coming home finds that his wife is sleeping with A. He causes the death of A by
stabbing him with a knife under grave and sudden provocation. X Is not liable under
Section 300 of IPC.

2. X was attacked by thugs who had guns with them, X in private defence kills all the thugs
with his licensed gun. X is not liable under Section 300 0f IPC.

3. X is a Police Officer, one day when he was on duty, he saw some robbers entering a
house with weapons, X encounters the robbers and kills them assuming that they would
harm the residents of the neighbourhood. X is not liable under Section 300 of IPC.

4. X and Y had a dirty fight, X in a fit of rage punches Y so hard on the stomach that Y starts
bleeding internally and dies. X is not liable under section 300 of IPC.
 5. A who’s an adult instigates B to jump from a ten-story building, B being under 18 and
not being able to comprehend what A was up to does the same and Dies, here A is liable
for Abetted Murder

Section 302 IPC

• A with the intention of killing B shoots at him but the bullet deflects because of bad aim
and kills C. A is liable of culpable homicide under article 301 of IPC.

• A was driving his car, under the influence of alcohol he was driving at a speed of 150
kmph, he loses control and ramps the car on a footpath killing almost everyone sleeping
there. A is liable for culpable homicide under article 301 of IPC.

Major differences between culpable homicide and murder

“All murders are culpable homicide but not all culpable homicides are murders” this is a very
common phrase used to establish a difference between culpable homicide and murder. It talks
about the point which I’ve already proved before that culpable homicide is the genus and
murder is the species. The major difference between them is that murder is a more aggravated
form of culpable homicide. In murder there is no presence of ambiguity that the act may or may
not kill as it is present in culpable homicide, looking at Section 299 of the Indian Penal Code
where there is clearly mentioned that:

“Act done with the intention of causing death or causing such bodily injury which is LIKELY to
cause death or having the knowledge that he can LIKELY by his act can cause death, he’ll be
committing the offense of culpable homicide”.

If you notice the multiple occurrences of the term “LIKELY” showcases that there is an element
of ambiguity that the act of the accused may or may not kill the person, is present. Whereas, in
the case of murder which is defined under Section 300 of the Indian Penal Code there is no such
mention of words as “likely” which shows that there is no chance of ambiguity left on behalf of
the accused, the accused is for sure that his act will defiantly cause death.

As mentioned by Sir James Stephen, it is extremely difficult to distinguish between Culpable

Homicide and Murder as the end result of both is death. But there is a presence of difference
though little it all boils up to a very subtle distinction of intention and knowledge involved in
both the crimes. The actual difference lies in the degree of the act there is a very wide
difference of degree of intention and knowledge among both the crimes.

Case Law
Through the case of Reg. v. Govinda, a clear distinction was drawn between culpable homicide
and murder. According to the facts of the case, there was a quarrel between a husband and a
wife in a fit of anger the husband knocked the wife. The wife became unconscious and the
husband in order to wake the wife punched her with closed palms but unfortunately, the wife
died because of internal bleeding in her brain. Herein, Melvil, J, held that the man was liable
under Section 299 of IPC because clearly there was no intention to cause death and the act was
not grave enough to cause death on the spot.

Most Intriguing Judgments Regarding Culpable Homicide

Some land-mark judgments regarding culpable homicide are, as follows:

Bhagwan Singh v. State of Uttarakhand

The decision regarding this case was given recently but the case dates back to 2007. Herein, 5
people were hurt and 2 of them succumbed to their injuries because of celebratory gunfire. The
furious bench of the Supreme Court consisting C.J.I S.A. Bobde, BR Gavai and Surya Kant, JJ said:

There is a rise in the incidents because of celebratory firing as they are seen as a status symbol.
A licensed gun that is to be used for protection should not be used in celebratory events as it
can turn to be very fatal.

According to the evidence collected the accused held the gun towards the roof of the house
unfortunately the bullets got deflected and injured. The accused pleaded not guilty as he had
no intention to cause anyone’s death. The court noticed that the accused was carrying a loaded
gun in public and he did not take proper care of his surroundings. He must’ve had an idea that
the pellets could deflect and hurt someone.

The court held him guilty. The offense amounted to culpable homicide under Section 299 of
IPC, punishable under Section 304 Part 2 of the IPC.

Ram Kumar v. State of Chhattisgarh

In this case, the appellant falls so madly in love with his sister-in-law that one day before her
marriage he called her in a field and hit her head with an axe. The girl went running towards her
house and then went to the police office to file an FIR. After that she was taken to the hospital
but she died on the way. The court tried to dwell on the legal nature of the FIR as to whether
the same was admissible as evidence of dying declaration.

The court relied on Dharam Pal v. State of U.P. observed that an FIR can be considered as a
dying declaration if the victim dies before appearing in front of the court.
The appellant, in this case, was punished by the District Court under section 302 of the Indian
Penal Code (punishment for murder) but the accused filed a criminal appeal in the High Court
against the judgment of the District Court, herein the court, after looking at the post mortem
report which showed that if the girl would’ve reached the hospital early she could have been
saved, he altered the conviction of the appellant and sentenced him under section 304 part I
Indian Penal Code(Culpable Homicide not amounting to Murder).

Minister of Justice and Correctional Services v. Estate Stransham-Ford

It’s a South African case wherein a patient suffering from cancer went to the court to seek court
permission to let the medical practitioner end his life and end his suffering. He was seeking it as
his right enshrined in the Bill of Rights under the South African Constitution and also asked that
the medical practitioner should not be charged with culpable homicide, the applicant was
allowed by the court to let the medical practitioner go for assisted euthanasia. But
unfortunately, he died 2 hours after the judgment. The High Court stated that it is not
considered in common use, until and unless the state allows the individual.

Conclusion

In this article, we discussed what is culpable homicide. It means causing the death of someone
by an act so fatal which can likely cause death. According to the Indian Penal Code, there are
two types of culpable homicide. Culpable homicide not amounting to murder. (Sec 299 IPC),
Culpable homicide amounting to murder. (Sec 300 IPC).

We discussed that punishment regarding culpable homicide is mentioned under Section 302
and Section 304 of the Indian Penal Code.

Punishment for culpable homicide amounting to murder (Sec 300) is given under Section 302
which is either death penalty or life imprisonment as well as fine. Punishment for culpable
homicide not amounting to murder (Sec 299) is given under Section 304 which is either
imprisonment for 10 years or fine or both. It can extend to life imprisonment if there was
intention present.

There is one interesting section as well in the act which talks about a person killing another
person by mistake while he was trying to kill another person, it is Section 301 of IPC. We
learned about some very interesting cases regarding Culpable homicide, through the case of
Bhagwan Singh we got to know about regulations regarding celebratory firing, we got to know
the international status of validity of euthanasia through the South African Case of Minister
Justice.