KIIT SCHOOL OF LAW, KIIT DEEMED TO BE UNIVERSITY

READING MATERIAL

ON

LAW OF CRIMES

LW 2019

PREPARED BY

SARVESH KUMAR SHAHI

ASSISTANT PROFESSOR

SWATI MOHAPATRA

ASSISTANT PROFESSOR

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 MODULE 1.

INTRODUCTION TO CONCEPT OF CRIME AND SUBSTANTIVE

CRIMINAL LAW

WHAT IS CRIMINAL LAW ?

Criminal Law (also known as Penal Law) is the body of law that punishes criminals
committing offences against the State. The goal of this process is that to achieve
criminal justice.
Black’s Law Dictionary, 8th Ed. 2000, p. 403, defines the “Criminal Law” as follows :
“The body of law defining offences against the community at large, regulating how
suspects are investigated, charged and tried and establishing punishments for
convicted offenders. Also termed as Penal Law.
Origin and growth of criminal law.—In the 14th century justices of the peace and
quarter sessions were established to deal with offences not sufficiently important for
the kings judges, and from that time the course of criminal justice in England has run
substantially on the same lines, with the single and temporary interruption caused by
the Court of star chamber.
The penal laws of modern States classify crimes somewhat differently, but in the main
on the same general principles, dividing them into:
1.Offences against the external and internal order and security of the State.
2.Offences against the administration of police and against public authority.
3.Acts injurious to the public in general.
4.Offences against the person (life, health, liberty and reputation), and conjugal and
parental rights and duties.
5.Offences relating to property and contracts (including theft, fraud, forgery and
malicious damage).
The classification adopted by English law is peculiar to itself, treason, felony and
misdemeanour, with a tentative fourth class described as summary offences. The
particular distinctions between these three classes are dealt with under the titles
Treason; Felony; Misdemeanour, etc. Here it is enough to say that the distinction is a
result of history and is marked for abolition and reclassification. Treason and most
felonies and some misdemeanours would under foreign Codes fall under the head of
crime.

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WHAT IS CRIME?
Crime is a revolt against the whole society and an attack on the civilization of the day.
[Harpreet Kaur v. State of Maharashtra, AIR 1992 SC 979
Crime can be defined as an act that subjects the doer to legal punishment. [T. K.
Gopal v. State of Karnataka, AIR 2000 SC 1669
Different crime have different patterns and the offences improve their strategy
according to the exigencies of the occasion. [State of Rajasthan v. Sukhpal Singh,
AIR 1984 SC 207

VARIOUS FORMS OF SENTENCE

The history of early penal system of most countries reveals that punishments were
torturous, cruel and barbaric in nature. Humanitarianism began to influence on
penology towards the end of eighteenth century. It emphasised that severity should be
kept to a minimum in any penal policy. The common modes of sentencing prevalent
in different parts of the world included various forms of corporal punishments such as
the following:
(i)Death Penalty.
(ii)Mutilation.
(iii)Flogging.
(iv)Branding.
(v)Pillory.
(vi)Stoning.
(vii) Banishment.
(viii) Chaining prisoners together
(ix)The other forms of punishments prevailing around the globe are imprisonment
which may be:
Simple,
Rigorous,
Solitary, and
Deportation.
And pecuniary penalties like:
(i)Fine,
(ii)forfeiture,
(iii)impounding,

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(iv)confiscation etc.
STAGES OF CRIME
1. Intention (means area)
2. Preparation
3. Attempt
4. Injury (s-44 of IPC, 1860)
1. Intention
Intention has not been sufficiently defined by statute and its meaning therefore has
been distilled from the jurisprudence of the superior courts. It is the common-sense
meaning of intention that coincides with what majority consider is an objective to do
something, that is, the accused's 'aim or purpose'. The intention is the first stage in the
commission of a crime and is generally known as the 'mental stage'.
Case Law - Hari Mohan Mandal v. State of Jharkhand, 2004(3) PLJR (SC) 7
Facts - Appellant along with four others faced trial for alleged commission of offence
punishable under Section 302, 302 read with Section 120B, 307, 302 read with
Section 109 of the Indian Penal Code, 1860 (for short the ’IPC’). The Trial Court
found the appellant Hari Mohan Mandal and two other accused persons Chandra
Mohan and Vijay to be guilty. Two others, namely, Gajadhar Mandal and Rameswar
Mahto were acquitted. While Chandra Mohan was found guilty of offence punishable
under Section 302 IPC, accused-appellant Hari Mohan Mandal and Vijay Mandal
were found guilty of the offence punishable under Section 307 IPC. Each was
sentenced to undergo imprisonment for life.
In appeal, a Division Bench of the Jharkhand High Court dismissed the appeal so far
as the accused Chandra Mohan and present appellant are concerned, but directed
acquittal of the accused Vijay Mandal. The sentence as imposed by the Trial Court
was maintained so far as the accused appellant is concerned.
Issues -
Whether there was intention to kill?
Judgement
Whether there was intention to kill or knowledge that death will be caused is a
question of fact and would depend on the facts of a given case. The circumstance that
the injury inflicted by the accused was simple or minor will not by itself rule out
application of Section 307 IPC. The determinative question is intention or knowledge,
as the case may be, and not nature of the injury.

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To justify a conviction under this Section, it is not essential that bodily injury capable
of causing death should have been inflicted. Although the nature of injury actually
caused may often give considerable assistance in coming to a finding as to the
intention of the accused, such intention may also be deduced from other
circumstances, and may even, in some cases, be ascertained without any reference at
all to actual wounds.
An attempt in order to be criminal need not be the penultimate act. It is sufficient in
law, if there is present an intent coupled with some overt act in execution thereof. It is
sufficient to justify a conviction under Section 307 if there is present an intent coupled
with some overt act in execution thereof. It is not essential that bodily injury capable
of causing death should have been inflicted. If the injury inflicted has been with the
avowed object or intention to cause death, the ritual nature, extent or character of the
injury or whether such injury is sufficient to actually causing death are really factors
which are wholly irrelevant for adjudging the culpability under Section 307 IPC.
2. 2. Preparation
In criminal law, the first two stages of intention and preparation are generally not
made punishable. As discussed in previous section, law does not as a rule punish
individuals for evil intention. Further, it is always possible for a person to give up his
evil intentions. It is possible that the person, who originally had the intention to
commit a crime gives it up and do not go ahead with the preparation.
For example, if A acquires a gun from an ammunition depot with an intention to kill
C, he loads his gun and keep it hidden inside his home. At this stage A made the
preparation to kill C but he did not do so. In this case A cannot be held liable for the
offence of murder because it is not possible to show that A had loaded the gun to kill
C.
2. 3. Attempt
The third stage is that of 'Attempt'. First two stages generally are not punishable but
once an act enters into the third stage criminal liability arises. Thus, an attempt to
commit a crime forms part of a series of acts. The reason why the first two stages in
the series, that of mental determination and that of preparation are not punished is that
they are too remote from the completion of the crime whereas the stage of attempt
takes the offender very close to successful completion of the crime.
Case - Abhayanand Mishra v The State of Bihar AIR 1961 SC 1698

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Facts - The appellant applied to the Patna University for permission to appear at the
1954 M. A. Examination in English as a private candidate representing that he was a
graduate having obtained his B. A. Degree in 1951 and that he had been teaching
in a certain school. Believing his statements the University authorities gave him the
necessary permission, and on his remitting the requisite fees and sending copies
of his photograph, as required, a proper admission card for him was dispatched to the
Headmaster of the School. As a result of certain information received by the
University, an investigation was made and it was found that the appellant was
neither a graduate nor a teacher as represented by him and that in fact he had been
de-barred from taking any University examination for a certain number of years
on account of his having committed corrupt practice at a University examination.
He was prosecuted and convicted under s. 420 read with s. 511 of the Indian Penal
Code, of the offence of attempting to cheat the University by false representations
by inducing it to issue the admission card, which if the fraud had not been detected
would have been ultimately delivered to him.
Issue - What is the difference between the stage of attempt and preparation?
Whether the admission card issued by the University for appearing at the Examination
held by it is property within the meaning of S. 415 of the Indian Penal Code, 1860.?
Judgement
Under s. 511 of the Indian Penal Code a person commits the offence of attempting to
commit a particular offence, when he intends to commit that particular offence and,
having made preparations and with the intention to commit that offence, does an act
towards its commission; such an act need not be the penultimate act towards the
commission of that offence but must be an act during the course of committing such
offence. It is not necessary for the offence under s. 511 that the transaction
commenced must end in the crime or offence, if not interrupted.
Held, further that an admission card issued by the University for appearing at the
Examination held by it, though it has no pecuniary value, has immense value to the
candidate and is property within the meaning Of S. 415 Of the Indian Penal Code.
In the present case, the preparation was complete when the appellant had prepared
the application for the purpose of submission to the University, and the moment he
despatched it, he entered the realm of attempting to commit the offence of cheating.
Accordingly, the appellant was rightly convicted of the offence under s. 420 read
with S. 511 of the Indian Penal Code.

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4. Accomplishment
The accomplishment of a crime is when an attempt to commit a crime is successfully
executed. Every person shall be liable for the act, offence or crime that he commits or
accomplishes. The provisions of the Code provide for specific punishments for
various crimes in the country.

ELEMENTS OF CRIME
To establish criminal liability, crime can be broken down into elements which a
prosecution must prove beyond a reasonable doubt. There are basically four elements
of a crime are as follows:
Human being:Human being must commit wrongful Act to fulfill first element of a
crime that means any non living thing or animals are not considered in the category of
a person or a human being whereas in ancient times when criminal law was closely
dominated by the idea of ritter bit theory punishment was also inflicted on animals
for the injury caused by them.

Mens rea or Guilty intention

The second element is derived from the famous maxim Actus Non-Facit Reum Nisi
Mens Sit Rea. This maxim is divided into two parts. The first part-
a) mens rea (guilty mind);
b) Actus reus ( guilty act ).
It means the guilty intention and guilty Act together constitute a crime. It comes from
a maxim that no person can be punished in a proceeding of criminal nature unless it
can be shown he has a guilty mind. The second element is Mens rea which can be
explained in various forms a guilty mind; a guilty or wrongful purpose; a criminal
intent, guilty knowledge and willfulness all constitute the same thing that mens rea.
R VS PRINCE, L.R. 2 C.C.R. 154 (1875)
Prince took away a girl below 16 yrs of age from the position of father and against the
will of her father. Prince argued that the girl told him that she was of 18 yrs and the
intention was bonafide as she was looking like 18 yrs or above. In this case, the court
has held that he cannot be given the benefit of the doctrine of mens rea because this is
the case of mistake of law, taking away a girl below 16 yrs is unlawful hence he was
held guilty.
Actus reus or illegal Act or omission

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It is the Latin term used to describe a criminal Activity. It is commonly defined as a
criminal activity that was the result of voluntarily bodily movement. This describes a
physical Activity that harms another person or damages property. In other words, due
to guilty or wrongful intention, some overAct or illegal omission must take place.
There are two types of Actus reus first is commission and the second one is an
omission.
Injury under Section 44
The fourth requirement of a crime is injury should be caused to another person or to
society at large. According to Section 44 of Indian Penal Code, 1860 the injury is
defined as any harm illegally caused to any person in body, mind, reputation or
property by another person. Elements of crime are a set of facts that must be proven to
convict a defendant of a crime. Criminal elements are sets forth in criminal statutes or
cases in jurisdictions that allow for common law crimes.
Cases
In the case of R vs Smith, [1959] 2 QB 35, [1959] A.C. defendant, a soldier got in a
fight at an army and stabbed another soldier the injured soldier was taken to a hospital
but was dropped twice at route .once their treatment given was described as
wrong .they failed to diagnose that his lung was punctured and the soldier died. The
defendant was convicted of murder and the appeal contended that if the victim was
given correct medical treatment he would not have died. It was held that the stab
wound was an operating cause of death and therefore conviction was upheld. In such
cases, the court was reluctant to lead the defendant complaints that their victim was
have survived if they had received proper medical care.
Case Law - Moti Singh v. the State of UP, 1964 SCR (1) 688
Moti Singh and Jagdamba Prasad appellants together with five other persons were
convicted by the session judge of Unnao of offences under Section 148, Section 302,
read with Section 149 and Section 307. Each of them was sentenced to life
imprisonment under Section 302 read with Section 149 of the Indian Penal Code. It
was alleged that the accused party members fired with guns and pistols both from
inside and outside the room on the other side of passage when the victim party passed
along with the passage. The evidence relied on for the conviction of Moti Singh
consists of the dying declaration of Gaya charan and presumably also of the
statements of the prosecution witnesses as HC has not specifically stated so. Again,

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HC relied on the alleged dying declaration of Gaya charan as deciding, factor in
deciding the number of persons who had taken part in firing from the room and from
the platform. The result is that the statement of Gaya charan is inadmissible in
evidence. It was a mainstay of the judgement of HC upholding the finding of the
session. Appellants were among the persons who had fired from room and platform. It
therefore accordingly allowed appeals the order of the HC and acquit Moti Singh and
Jagdamba prasad of the offences they were convicted of and hold that Moti Singh and
Jagdamba prasad have not been to have taken part in that incident. It was directed that
they are released forthwith, if not required to be detained under any process of law.
Appeal allowed by the court.
Illustrations to understand elements
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.
JOINT AND CONSTRUCTIVE LIABILITY
Joint Criminal Liability
It refers to the liability of two or more persons for an offence. Where two or more
persons are engaged in commission of an offence, if any one of them or more done an
act which is prohibited by law, for benefit of all of them, each person engaged will be
liable for that act in the manner as it is solely committed by him. This rule of criminal
law is called as joint criminal liability.
Section 34 of the I.P.C.,1860, states that - where an act is done by the several persons
in furtherance of common intention of all, each of them would be liable for that act in
the same manner as it is done by him alone.
Essentials of the Section 34
In order to constitute joint criminal liability under section 34 following essentials
must be fulfilled:

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 a. Common Intention
b. Several persons
c. Criminal act
Common Intention
It refers to the intention shared by all the persons involved. An intention becomes
common when it is shared by several persons engaged in a particular act.
Case Law -Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1
Facts - On August 3, 1923, the Sub-Fostmaster at Sankaritolla Post Office was
counting money at his table in the back room, when several men appeared at the door
which leads into the room from a courtyard, and, when just inside the door, called on
him to give up the money. Almost immediately afterwards they fired pistols at him.
He was hit in two places, in one hand and near the armpit, and died almost at once.
Without taking any money the assailants fled, separating as they ran. One man,
though he tired his pistol several times, was pursued by a post office assistant and
others with commendable tenacity and courage, and eventually was secured just after
he had thrown it away. This man was the appellant; the others escaped. The pistol was
at once picked up and was produced at the trial.
The charges preferred were murder under Section 302 of the Indian Penal Code, and
voluntarily causing hurt under Section 394.
Judgement
The High Court of Calcutta and the Privy Council both agreed with the findings of the
trial court and held the accused guilty of murder. Giving his judgment LORD
SUMNER quoting a line from Milton’s famous poem, “ON HIS BLINDNESS” said.
“even if the appellant did nothing as he stood outside the door, it is to be remembered
that in crimes as in other things they also serve who only stand and wait….. Section
34 deals with doing of separate act, similar or diverse by several persons; if all are
done in furtherance of a common intention, each person is liable for the result of them
all as if he had done them himself”.
Constructive Liability
It is the advanced version of joint liability. In constructive liability, the offence is
committed by any one member of an unlawful assembly in the advancement of the
common objective of that assembly. Then each member of that assembly is
considered to be constructively liable for the act as if it is done by a person

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irrespective of the fact if the person is present at the time of the crime or not; mere
involvement or membership is sufficient.
Section 149 of the Indian Penal Code refers to that if an offence is committed by any
person of the unlawful committee in the implementation of the common object of that
assembly, or if the members of the assembly already knew about the crime is likely to
be committed in prosecution of that common object, every person at the time of the
execution of the crime or offence is the member of the same assembly or committee is
guilty of that crime.
Common Object:-
Section 149, like Section 34, is the other instance of constructive joint liability.
Section 149 creates a specific offence. It runs as under:
“If an offence is committed by any member of an unlawful assembly in prosecution
of the common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every person who, at
the time of the committing of that offence, is a member of the assembly, is guilty of
that offence.”
Elements Of Section 149:-
The essence of offence under Section 149 is assembly of several (five or more)
persons having one or more of the common objects mentioned in Section 141 and it
could be gathered from the nature of the assembly, arms used by them and the
behaviour of the assembly at or before scene of occurrence. Section 149 creates joint
liability of all members of an unlawful assembly for criminal act done by any member
in prosecution of the common object of the said assembly. So the essential ingredients
of Section 149 are:
1. There must be an unlawful assembly, as defined in Section 141;
2. Criminal act must be done by any member of such assembly;
3. Act done is for prosecution of the common object of the assembly or such which
was likely to be committed in prosecution of the common object;
4. Members have voluntarily joined the unlawful assembly and knew the common
object of the assembly.
5. Mere presence and sharing of common object of the assembly makes a person
liable for the offence committed even if he had no intention to commit that offence.

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Difference between section 34 and section 149
In section 34, the number of people must be more than one, but in section 149, the
unlawful assembly must consist of at least a group of five people.
Section 34 requires common intentions, whereas section 149 requires common objects.
In section 34, a Prior meeting of the people is necessary, whereas, in section 149, the
prior meeting of a group of people is not required.
Active participation in the crime is necessary for section 34, and in section 149, active
participation in the offence is not required.
Case Law- Amar Singh vs State On Haryana , AIR 1973 SC 2221
Thandu Ram of village Sabarwas was going out of his house and when he reached
near the naubra of Gopal, he saw Girdhari Hirab and asked him to tell as to when his
turn of water would commence. Girdhari replied that he would tell about that shortly
and went towards his house. Bhallu and Kurra, having lathis with them came from the
back side of Thandu Ram and gave one lathi blow each to him (Thandu Ram). They
also tried to drag Thandu Ram but Mool Chand (P.W. 4) came there and saved him.
At that time, the appellant and Hari Singh were sitting on the chabutra in front of their
house along with Ram Sarup. The appellant was armed with Jaili and Hari Singh with
a gun which belonged to Ram Sarup. The appellant and Hari Singh shouted to Bhallu
and Kurra to drag Thandu Ram to that place. Kurra and Bhallu dragged Thandu Ram
to that place. Kurra and Bhallu dragged Thandu Ram for 2/3 karama. At that time
Biru and Bhana reached there. Mool Chand, Biru and Bhana intervened and prevented
Kurra and Bhallu from dragging Thandu Ram further. The appellant and Hari Singh,
followed by Ram sarup, came to-wards Thandu Ram and when they were at a
distance of 5/6 karama, the appellant exhorted Hari Singh, to shoot at Thandu Ram.
Hari Singh thereupon fired at Thandu Ram but by that time Thandu Ram's daughter
Mst. Indra came there and the shot hit her. Mst. Indro, on receipt of the shot fell down.
Issues
Whether common intention to murder was present in the commission of crime?
Judgement
The consequence of incorrectly prosecuting a person under Section 149 IPC and
afterwards substituting Section 34 does not fatally impair the prosecution case, since
the replacement must be regarded to be a formal issue and does not fundamentally
affect the prosecution case unless prejudice is given to the accused.

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where the conviction for an offence under Section 302 read with Section 34, despite
the fact that the accused was charged under Section 302 read with Section 149, was
not illegal because the facts proved and evidence adduced would have been the same
if the accused had been charged under Section 302 read with Section 34 of the Indian
Penal Code, 1860.

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 MODULE 2.

OFFENCES AGAINST HUMAN BODY

Offence means any act or omission made punishable by any law for the time being in
force under the Code of Criminal Procedure. The word "offence"denotes a thing made
punishable by Penal Code or under any special or local law is punishable under such
law with imprisonment for a term of six months or upwards whether with or without
fine under the Penal Code. Crime is criminal wrong concerned with the breach of
public rights and duties and affects the community at large.
There are two kinds of offences affecting the human body:
(1) Of offences affecting life;
(2) Of offences affecting human body.
The offences affecting life are :-
(a) Culpable homicide,
(b) Murder,
(c) Rash or negligent homicide,
(d) suicide and abetment of suicide,
(e) murder, culpable homicide and attempt to suicide, and
(f) Causing of miscarriage, Injuries to unborn children, Exposure of Infants and
concealment of Births and Exposure and Abandonment of Child under Twelve years,
by parent or person having care of it.
To murder, whoever commit the offence of it. They are:
(1) with the intention of causing death.
(2) with the intention of causing bodily injury as in fact is sufficient in the ordinary
course of nature of death.
(3) in the absence of any circumstance which makes the act. So, the above mentioned
are the difference between the culpable homicide and murder.
Homicide is the killing of a human being by a human being. It is either
(a) Lawful or (b) Unlawful .
Lawful homicide, or simple homicide, includes several cases falling under the
General Exceptions.
If a man commits a murder, he can be tried and convicted of murder by the death
sentence which the highest form of punishment, but not for every murder. Murder
means whoever, in the absence of any circumstance which makes the act of culpable

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homicide not amounting to murder, causes death by doing an act with the intention of
causing death, or with the intention of causing bodily injury as in fact is sufficient in
the ordinary cause of nature to cause death, commits the offence of murder.
Normally, the offender commits murder, but if that act brought the case within the
ambit of one of the (5) exceptions prescribed in S.299(2) of the Penal Code, then that
offence does not amount to murder, but culpable homicide not amounting to murder
only. These (5) exceptions in short are:-
(1) Deprivation of the power of self-control by grave and sudden provocation;
(2)Exceeding the right of private defence of property and person;
(2) Exceeding the power of public servant given to him by Law;
(3) Acts without premeditation in a sudden fights; and
(5)Causes the death of a person who is above the age of (18) years of fine.
Kinds of unlawful homicide
Unlawful homicide includes :-
(1) Culpable homicide not amounting to murder;
(2) Murder;
(3) Causing death by negligence;
(4) Suicide and abetment of suicide.
Culpable Homicide not Amounting to Murder
Culpable Homicide is defined in Section 299 of the IPC. If you study the definition
you shall find that the definition stresses both on the physical and mental element,
where an act is committed which is done with the intention of causing death, or with
such knowledge that the act which he or she is going to undertake is going to kill
someone, or causes such bodily or physical injury which will lead to a person's death.
Also read the explanations to the Section which are actually clarifications to the
Section.
Ingredients
a) Acts
The Act should be of such a nature that it would put to peril someone's life or damage
someone's life to such an extent that the person would die. In most cases the act would
involve a high degree of violence against the person. Instances such stabbing a person
in vital organs, shooting someone at point blank range, administering poison would
include instances which would constitute culpable homicide.

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Causing death: The very first test to decide whether a particular act or omission
would be covered by the definition of culpable homicide is to verify whether the act
done by an accused has ‘caused’ the death of another person. ‘Death’ means the death
of a human being. But the word ‘death’ does not include the death of an unborn child.
It is immaterial if the person whose death has been caused not the very person whom
the accused intended to kill. The offence is complete as soon as any person is killed.
By doing an act: Death may be caused in a number of ways; such as by poisoning,
starving, striking, drowning or communicating some shocking news and by a hundred
different ways. ‘Act’, here includes ‘illegal omission’ also.
b) Intention Sometimes one is required to do certain dangerous acts, even in
everyday life where there is a risk of death or causing hurt to such an extent that a
person may die. Mundane things such as driving possess the potential of taking
someone's life. The question however is was the act committed with the "intention of
causing death". Thus where you push someone for a joke and the person falls on his
head has a brain injury and dies, there was no "intention of causingdeath" but when
you pushed the person deliberately with the idea that the person falls and dies, in that
case the act is with the "intention of causing death"
c) Knowledge Knowledge is different from intention to the extent that where a person
may not have the intention to commit an act which kills, he knows that the act which
he commits will take someone's life or is likely to take someone's life will be
considered having the "knowledge that he is likely by such act to cause death". For
example, a doctor uses an infected syringe knowingly on a patient thereby infecting
him with a terminal disease. The act by itself will not cause death, but the doctor has
knowledge that his actions will lead to someone's death.
Murder
Murder is defined in S. 300 of the Penal Code as follows :-
“Whoever, in the absence of any circumstance which makes the act one of culpable
homicide not amounting to murder, causes death by doing an act with the intention of
causing death, or with the intention of causing bodily injury as in fact is sufficient in
the ordinary cause of nature to cause death, commits the offence of murder.
Explanation of culpable homicide is mentioned in Section 300 (A) of the Penal Code.
Difference Between Ss. 299 and 300
Earnest efforts of distinction were made in the following cases:
 Queen Empress vs Gora Chand Gopi (1866) 5 WR 45 by Peacock J.

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  R vs Govinda, (1876) Bom. by Melvill, J.
 Barakatulla vs R, (1887) PR 62 by Plouden J.
 Indar Singh vs King Emperor, (1933) Lahore by Dilip Singh J.
 St. of AP vs R. Punnayya, AIR 1977 SC 45 by Sarkaria, J.
 R vs Govinda – by Melvill, J.
Distinguished in the following manner on the basis of above mentioned comparative
table:
(1)With the intention of causing death. – Clause (a) of S. 299 and clause (1) of S. 300
have exactly the same language. Therefore, intentionally causing of death is always a
murder.
(2)With the intention of causing such bodily injury as
• Clause (b) of S. 299 corresponds with clauses (2) and (3) of S. 300.
• Under clause (b) of S. 299 and (3) of S. 300, the offence is culpable homicide, if the
bodily injury intended to be inflicted is likely to cause death; it is murder, if such
injury is sufficient in the ordinary course of nature to cause death. It is a question of
degree of probability.
• E.g., a blow from the fist or a stick on the vital part may be likely to cause death;
wound from a sword in a vital part is sufficient in the ordinary course of nature to
cause death.
(4) Clause (b) of S. 299 and Clause (2) of S. 300
• The distinguishing feature of mens rea under clause (2) is the knowledge possessed
by the offender regarding the particular victim being in such a peculiar condition of
health that the intentional harm caused to him is likely to be fatal, notwithstanding the
fact that such harm would not in the ordinary way of nature be sufficient to cause
death of a person in normal health condition.
• The intention to cause death is not essential requirement under clause (2). Only the
intention of causing the bodily injury coupled with the offender’s knowledge of the
likelihood of such injurycausing the death of the particular victim is sufficient.
• Clause (b) of S. 299 does not postulate any such knowledge on the part of the
offender.
• Clause (c) of S. 299 and clause (4) of S. 300 both require knowledge of the
probability of the act causing death.
• Whether the offence is culpable homicide or murder depends upon the degree of risk
to human life.

17
• If the death is likely result, it is culpable homicide; if it is the most probable result, it
is murder.
State of AP vs R. Punnayya, AIR 1977 SC 45 by Sarkaria, J.
• ‘Culpable homicide’ is genus and ‘murder’ is its specie. All murder is culpable
homicide but not vice versa.
• ‘Culpable homicide’ sans ‘special characteristics of murder’ is culpable homicide
not amounting to murder.
• An offence cannot amount to murder unless it falls within the definition of culpable
homicide, but it may amount to culpable homicide without amounting to murder.
• All acts of killing done with the intention to kill, or to inflict bodily injury sufficient
to cause death, or with the knowledge that death must be the most probable result are
prima facie murder;
• While those committed with the knowledge that will be a likely result are culpable
homicide not amounting to murder.
• Where the act done is not ‘with the intention of causing death’ (clause 4, s.300) the
difference between culpable homicide and murder is merely a question of different
degrees of probability that death would ensue.
• It is culpable homicide where death must have been known to be a probable result; it
is murder where it must have been known to be the most probable result.
• If an injury is deliberately inflicted, in the sense that it is not accidental or
unintentional, and the injury is sufficient to cause death in the ordinary course of
nature and death results, the offence is murder. (clause 3, s. 300)
In Kesar Singh v State of Haryana (2008) 15 SCC 753, Court said knowledge
denotes a bare state of conscious awareness of certain facts in which the human mind
might itself remain supine and inactive whereas intention connotes a conscious state
in which mental faculties are roused into activity and summed up into action for the
deliberate purpose of being directed towards a particular and specified end which the
human mind conceives and perceives before itself.
A question of intention is always a matter of fact. In determining the question of
intention the nature of the weapons used, the part of the body on which the blow was
given, the force and number of blows, are all factors from which an inference as to the
intention can, as a fact, be drawn.13 In Ramesh v State14 the accused gave repeated
knife blows to the victim resulting in his death, it was held that the intention was to
kill.

18
In Ghasi Ram v State, court held stabbing wife with the aid of torch, in the middle of
the back with such force as to penetrate the spinal cavity, the intention could only
have been to kill her. In Vasanth v State of Maharshtra there was previous enmity
between the accused and the deceased. The accused and the deceased were seen
grappling with each other. Some persons who were present separated the two. The
accused then went running to his jeep, drove it on the wrong side and towards the
deceased in high speed, knocked him down and ran over him, killing him. The road
on which the incident took place was a wide and deserted one. There was no reason or
necessity for the accused to have driven the jeep in the wrong direction. The Supreme
Court held that the accused had deliberately dashed his jeep against the accused and
ran over him with the intention to cause his death. It is pertinent to point out that the
first clause of Sec 300, which is act done with intention of causing death, is identical
to the first clause of Sec 299, which is also doing an act with the intention of causing
death. Therefore, an act coming under Clause 1 of Sec 300 will also fall under clause
1 of Sec 299 and in both instances, it will be culpable homicide amounting to
murder.17
In William Slaney v State of Madhya Pradesh, the accused was in love with the
deceased's sister, which the deceased did not like. There was a quarrel between them
and the deceased asked the accused to leave the house. The accused went and came
back with his brother. He called out for the deceased's sister. Instead, the deceased
came out. There was a heated exchange of words. The accused snatched a hockey
stick, which was with his brother, and hit the deceased on his head. As a result, there
was a fracture of the skull and the deceased died. In this case, the Supreme Court held
that the act of the accused is only one which was likely to cause death and the accused
did not have any knowledge to bring in under Clause 2 of Sec 300. The accused was
convicted under Sec 304, Part II, and not under Sec 300.
In Virsa Singh v State of Punjab, 22 the Supreme Court laid down that in order to
bring a case within Clause 3 of Sec 300, the prosecution must prove the following: I.
First, it must establish, quite objectively that a bodily injury is present; II. Secondly,
the nature of the injury must be proved; these are purely objective investigation; III.
Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury, that is to say, that it was not accidental or unintentional, or that some other
kind of injury was intended; IV. Fourthly, it must be proved that the injury of the type
just described made up of the three elements set out above, is sufficient to cause death

19
in the ordinary course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the offender.23

In State of Madhya Pradesh v Ram Prasad, this clause was applied by the Supreme
Court in a totally different context. In this case, the accused Ram Prasad and his wife
had a quarrel. Villagers were called to mediate, but to no avail. At that time, the
accused poured kerosene oil over the wife and set her on fire. She suffered extensive
burn injuries and died as a result of the injuries. The Supreme Court observed that in
respect of Clause 1-3 of the Sec 300, the question would arise as what was the
intention of the accused, the nature of injuries he intended to cause etc, which would
all be matters of speculation. The Supreme Court opined that it would be simpler to
place reliance on Clause 4, because it contemplates only knowledge and no intention.
The court held that though generally the clause is invoked where there is no intention
to cause the death of any particular person, the clause may on its terms be used in
those in those cases where there is such callousness towards the result, and the risk
taken is such that it may be stated that the person knows that the act is likely to cause
death. In the present case, when the accused poured kerosene and set fire to his wife,
he must have known that the act would result in her death. As he had no reason for
incurring such risk, the offence was held to fall within Clause 4 of Sec 300 and would
be culpable homicide amounting to murder.26
When Culpable Homicide is not Murder
Clauses 1-4 of Sec 300 provide the essential ingredients wherein culpable homicide
amounts to murder. The section also provides five exceptional situations, the
existence of which will remove a case from the purview of Sec 300. In other words,
even if a case falls within any of the four clauses of Sec 300, if it also falls within any
of the five exceptions, then it will cease to be murder. It will merely be culpable
homicide not amounting to murder. It may be noted that Clause 4 of Sec 300 has a in-
built exception clause. It stipulates that the imminently dangerous act should be done
without any excuse for incurring the risk of causing death or such injury. It thus
indicates that an immediately dangerous act is not murder if it is done to prevent a
greater evil. It is evident that the exceptions provided in the section are applicable
uniformly to all the four clauses of Sec 300. In which case, it is only logical to
conclude that the words without excuse used in Clause 4 contemplates situations other
than those which fall within the five exceptions provided. It will also apply to

20
situations, which fall short of the exceptions or which are other than the exceptions.30
The following exceptions are the exceptions provided for under Sec 300: a) grave and
sudden provocation b) private defence c) acts of public servants d) sudden fight e)
consent.
Case Laws on Exceptions
In KM Nanavati v State of Maharashtra, AIR. 1962 SC 605, the accused was a naval
officer. He was married with three children. One day, his wife confessed to him that
she had developed intimacy with the deceased. Enraged at this, the accused went to
his chip, took a semi automatic revolver and six cartridges from the store of the ship,
went to the flat of the deceased ,entered his bedroom and shot him dead. Thereafter,
the accused surrendered himself to the police. The question before the Supreme Court
was whether the act of the accused could be said to said to fall within Exception 1 of
Sec 300. The Supreme Court laid down the following postulates relating to grave and
sudden provocation:
1. The test of grave and sudden provocation is whether a reasonable man belonging to
the same class of society as the accused, laced in the situation in which the accused
was placed, would be so provoked as to lose his self-control.
2. In India, words and gestures may also, under certain circumstances, cause grave
and sudden provocation to an accused, so as to bring his act within the first exception
to Sec 300.
3. The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for the offence.
4. The fatal blow should be clearly traced to the influence of passion arising from
provocation and not after the passion had cooled down by lapse of time, or otherwise
giving room and scope for premeditation and calculation. In Nanavati's case, the
Supreme Court, which laid down the contours of the law, held that the accused, after
his wife confessed to her illicit relationship with the deceased, may have momentarily
lost control. He had thereafter dropped his wife and children at a cinema, went to the
ship, collected the revolver, did some official business there, drove his care car to the
office of the deceased, there was sufficient time for him to regain his self control. In
view of this, the court held that the provisions of Exception 1 to Sec 300 were not
attracted. The accused was convicted for murder and sentenced to life imprisonment.
Exceeding the Right of Private Defence (Exception 2)

21
In Mohinder Pal Jolly v State of Punjab, AIR 1979 SC 577, the deceased and his
colleagues were workers in the factory of the accused. There was a dispute between
them with regard to payment of wages. On the day of occurrence, the workers had
assembled outside the factory and raised provocative slogans and hurled brickbats at
the factory. Some property of the accused was damaged. The accused thereafter came
out of his office room and standing on the Thari fired a shot from his revolver which
killed the deceased instantaneously. The Supreme Court held that the accused had a
right of private defence of his body, but the circumstances were not such as to create
apprehension in his mind that the death or grievous would be the consequence, if his
right of private defence was not exercised. It was held that the accused had exceeded
his right of private defence. Exception 2 to Sec 300 was held not applicable to the
facts of the case.
Act of Public Servants (Exception 3)
This exception shall not apply where the act of public servant is illegal and
unauthorised by law or if he glaringly exceeds the powers entrusted to him by law.
Where X, a police constable fired at certain reapers under the orders of Z, a
superintendent of Police and it was found that neither the constable nor the officer
believed it necessary for public security to disperse those reapers by firing upon them,
it was held that the constable was guilty of murder.38 In Lakhi Singh v State,
39where a suspected thief who has been arrested by a police officer, escapes by
jumping down from train and the police officer finding that he is not in a position to
apprehend him, shoot at him but kills another person. It was held that the case is
covered under this exception of the Sec 300.
Death caused in Sudden Fight (Exception 4)
In Kesar Singh v State of Haryana, 40Supreme Court of India beautifully explained
Exception 4 to Sec 300. The Court said the word fight is used to convey something
more than a verbal quarrel. It postulates a bilateral transaction in which blows are
exchanged even if they all do not find their target. Provocation per se is not fight.
Asking somebody to do something again may not be a provocation. Expressing a
desire to one's neighbour digging foundation that some passage may be left may not
be considered to be a demand. In the Instant case, prosecution alleging that when the
deceased merely asked the accused to leave free some passageway, the said accused
exhorted that the deceased must be taught a lesson and accused hit him on the head
with reverse side of spade resulting in his death a few days later. The contention that

22
there was an altercation with the deceased was found baseless by the court. There was,
thus, no fight, far less a sudden fight. Hence, there was nothing to show that a sudden
fight and heat of passion as envisaged under Exception 4 to sec 300, had developed.
The Supreme Court finds that the case falls under Sec 300 and does not fall under Sec
300 Exception 4.41
Death by Consent (Exception 5)
In Dasrath Paswan v State of Bihar42the accused, who was a student of tenth class,
failed in his examination thrice in succession. He was upset and frustrated by these
failures and decided to put an end to his life and informed his wife, a literate girl of
about 19 years of age. The wife thereupon requested him to kill her first and then kill
himself. In pursuance of the pact, he killed his wife but was arrested before he could
end his life. The Patna High Court, relying upon Exception 5 to Sec 300, convicted
him under Sec 304, Part II of the Indian Penal Code.
Hurt and Grievous Hurt (Sections 319-338)
Any hurt which endangers life or which causes the sufferer to be during the space of
twenty days in severe bodily pain, or unable to follow his ordinary pursuits come
under Clause “Eighthly” of Section 320 IPC defining “Grievous Hurt”.
Section 326 IPC provides punishment for voluntarily causing grievous hurt by
dangerous weapons or means like by fire, any corrosive substance, any heated
substance etc
What is Hurt?
According to Section 319 IPC whoever causes bodily pain, disease or infirmity to any
person is said to cause hurt.
What is Grievous hurt?
The following kinds of hurt only are designated as "Grievous": First- Emasculation
Second- Permanent privation of the sight of either eye, Third- Permanent privation of
the hearing of either ear, Fourth- Privation of any member or joint, Fifth- Destruction
or permanent impairing of the powers of any member or joint, Sixth- Permanent
disfiguration of the head or face, Seventh- Fracture or dislocation of a bone or tooth,
Eighth- Any hurt which endangers life or which causes the sufferer to be during the
space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Case Laws
in Niranjan Singh V State of Madhya Pradesh 2007, AIR 2007 (7) SCR1017,
2007(10 )SCC459 , the Court observed that the term “endangers life” is much

23
stronger than the expression “dangerous to life”. The mere fact that a man has been in
hospital for twenty days is not sufficient; it must be proved that during that time he
was unable to follow his ordinary pursuits. A disability for twenty days constitutes
grievous hurt; if it constitutes for a smaller period, then the offence is hurt. “Ordinary
pursuits” means acts which are a daily routine in every human being’s day to day life
like eating food, taking bath, going to toilet, etc. Where there is no intention to cause
neither death nor knowledge that death is likely to be caused from the harm inflicted,
and the death is caused, the accused would be guilty of grievous hurt if the injury
caused was of serious nature, but not of culpable homicide. A person is responsible
for voluntarily causing grievous hurt only when he both causes grievous hurt and
intends or having knowledge of causing grievous hurt (Explanation of section 322). It
is immaterial while causing one type of grievous hurt he actually causes grievous hurt
of another type. (Explanation of Section 322) . Dangerous injury is a variety of
grievous injury. Dangerous injuries are those which cause imminent danger to life,
either by involvement of important organs and structures, or extensive area of the
body. If no surgical aid is available, such injuries may prove fatal. If an opinion
regarding the nature of injury cannot be formed at the time of the examination, as in
the case of a head injury where the symptoms are obscure, the injured person must be
either re-examined after 24-48 hours or admitted under observation until a definite
opinion can be formed.
In Pichapillai v. State of Tamil Nadu, the Madras High Court altered the conviction of
the accused from section 304(II) to section 323, IPC observing that there was no
intention of the accused to kill the deceased, where the accused pushed the deceased
on the chest due to which deceased fell down on a stone which resulted in his death.
Similarly, in D. Ram v. State of Rajasthan, where the accused inflicted a single lathi
blow on the head of the deceased causing simple injury, and the deceased died due to
haemorrhage, the Rajasthan High Court altered the conviction from section 302 to
section 323, holing that the accused did not have knowledge that a single blow of lathi
could cause such injury as to result in death.
ACID ATTACK
The 226th Report of Law Commission of India recommended the Inclusion of Acid
Attacks as Specific Offences in the Indian Penal Code and a law for Compensation for
Victims of Crime. The Law Commission proposed the insertion of two sections in the
IPC dealing with Acid Attacks after analysing the crime of acid attack, its impact on

24
victim, laws relating to acid attacks in various countries and the decisions of various
courts of India in matters related to acid attack. It was contended by those working for
acid attack victims that the Criminal law relating to grievous hurts in Sections 320,
322, 325 and 326 of the Indian Penal Code (I.P.C) is insufficient to deal with the
phenomenon of acid attacks.
In Gulab Sahiblal Shaikh v. State of Maharashtra, 1998 Bom CR(Cri) acid was
thrown on a woman, while she was holding her two and a half year old baby, by her
brother-in-law for refusing to give money to maintain her husband’s second wife. She
sustained acid burns on the left side of her face, left hand and left breast and both she
and her infant daughter lost their eyesight. The woman finally died due to burn
injuries. In this case, the brotherin-law was sentenced by the Court under Section 302
of IPC, to undergo imprisonment for life and pay a fine of Rs. 1000 and also
sentenced to rigorous imprisonment for a month. Under Section 326 of the IPC he
was awarded 5 years of imprisonment apart from a fine of Rs. 2000/-and 3 months of
rigorous imprisonment.
Wrongful Restraint and Wrongful confinement (Sections 339-348)
Section 339 of Indian Penal Code defines wrongful restraint -Ingredients :
1) A person causes to obstruction to any person
2) Such obstruction is caused voluntarily
3) The obstruction must be such as to prevent that person from proceeding in any
direction in which he has right to proceed.
Sovarani Roy Vs. King AIR 1950 Cal 157 In this case Court held that if Person
believes in good faith that he has right to prevent the complainant from passing over
his ground, he cannot be convicted of the offence of wrongful restraint.
In the case of Madala Perayya vs. Varugunti Chendrayya (1954 CrLJ 283 Mad), the
facts were that, the accused and the complainant jointly owner a well and so both of
them were entitled to use the water for agricultural purposes. The accused stopped the
complainant from using the water and also stopped the bullocks of the complainant
from moving. The Court held that the accused had committed eh offence of wrongful
restraint under Section 339.
Case Law: State of Gujrat v Maganbhai Jogani, AIR2009 S.C 2594
Fact: the officers visited the house of the accused for making some inquiry under
money lenders act. They were not allowed to go out of the house for some time, but at
the same time they didn’t apprehend any use of force by the accused.

25
Judgment: it was held that the accused had not committed the offence of wrongful
confinement under section 340 of IPC
Types of Wrongful Confinement
1. Wrongful confinement for three or more days ( Section 343)
“Whoever wrongfully confines any person for three days, or more, shall be punished
with imprisonment of either description for a term which may extend to two years, or
with fine, or with both.” The classification of this offence is that it is Cognizable,
Bailable and Triable by any Magistrate, further, it is also Compoundable by the
person confined with the permission of the court.
2. Wrongful confinement for ten or more days (Section 344)
“Whoever wrongfully confines any person for ten days, or more, shall be punished
with imprisonment of either description for a term which may extend to three years,
and shall also be liable to fine.” The classification of this offence is that it is
Cognizable, Bailable and Triable by any Magistrate, further, it is also Compoundable
by the person confined with the permission of the court.
3. Wrongful confinement of person for whose liberation writ has been issued
(Section 345)
“Whoever keeps any person in wrongful confinement, knowing that a writ for the
liberation of that person has been duly issued, shall be punished with imprisonment of
either description for a term which may extend to two years in addition to any term of
imprisonment to which he may be liable under any other section of this Chapter.” The
classification of this offence is that it is Cognizable, Bailable and Triable by
Magistrate of the first class. Further, this offence is Non-compoundable.
4. Wrongful confinement in secret (Section 346)
“Whoever wrongfully confines any person in such manner as to indicate an intention
that the confinement of such person may not be known to any person interested in the
person so confined, or to any public servant, or that the place of such confinement
may not be known to or discovered by any such person or public servant as
hereinbefore mentioned, shall be punished with imprisonment of either description for
a term which may extend to two years in addition to any other punishment to which
he may be liable for such wrongful confinement.” The classification of this offence is
that it is Cognizable, Bailable and Triable by Magistrate of the first class, further, it is
also Compoundable by the person confined with the permission of the court.

26
5. Wrongful confinement to extort property, or constrain to illegal act (Section
347)
“Whoever wrongfully confines any person for the purpose of extorting from the
person confined, or from any person interested in the person confined, any property or
valuable security or of constraining the person confined or any person interested in
such person to do anything illegal or to give any information which may facilitate the
commission of an offence, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable to fine.” The
Classification of this offence is that it is Cognizable, Bailable and Triable by any
Magistrate. Further, it is Non-compoundable.
6. Wrongful confinement to extort confession, or compel restoration of property
(Section 348)
“Whoever wrongfully confines any person for the purpose of extorting from the
person confined or any person interested in the person confined any confession or any
information which may lead to the detection of an offence or misconduct, or for the
purpose of constraining the person confined or any person interested in the person
confined to restore or to cause the restoration of any property or valuable security or
to satisfy any claim or demand, or to give information which may lead to the
restoration of any property or valuable security, shall be punished with imprisonment
of either description for a term which may extend to three years, and shall also be
liable to fine.” The classification of this offence is that it is Cognizable, Bailable and
Triable by any Magistrate and it is Non-compoundable.
WRONGFUL CONFINEMENT
Ingredients :
To invoke Section 340 of the Indian Penal Code
following ingredients are to be satisfied :
(i) A person voluntarily restraint any person.
(ii) The act is done in such a manner as to prevent that person from proceeding
beyond circumscribing Limits
In the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan (1993 CrLJ
248 Guj), it was discussed by the court that “For a charge of wrongful confinement,
proof of actual physical restriction is not essential. It is sufficient if the evidence
shows that such an impression was produced in the mind of the victim, a reasonable
apprehension in his mind that he was not free to depart. If the impression creates that

27
the complainant would be forthwith seized or restrained if he attempts to escape, a
reasonable apprehension of the use of the force rather than its actual use is sufficient
and important.”
Criminal Force and Assault
Force:
According to S. 349, a person is said to use force to another if the causes in one of the
three following ways:
(a) motion, or
(b) change of motion, or
(c) cessation of motion:
to that other, or to any substance, so as to bring it into contact with any part of that
other, or anything which that other is wearing or Tying or anything so situated that
such contact affects the sense of feeling of the other’s:
Firstly: be his own bodily power.
Secondly: by disposing any substance in such a manner that the motion, change of
motion, cessation of motion takes place without any other person.
Thirdly by inducting any animal to move, to change its motion or to cease its motion.
Criminal Force
When a person intentionally uses force on another person without that person’s
consent, in order to commit an offence and with the prior intention of causing harm to
that person in the form of injury, fear or annoyance to whom the force is used, is said
to use criminal force on the other person. It comes under Section 350 of the Indian
Penal Code.
Assault
When a gesture is made to any person, knowing that the person is going to apprehend
it as the person is going to use criminal force on that person is known as assault. Mere
words do not consist of an assault. But a person may use certain gestures and
expressions or preparation, such gestures, expressions and preparations may amount
to assault. For example:
X shakes his fist at Y, intending or knowing that may cause to believe Y that X is
about to strike Y. X has committed assault.
Essentials of Assault
a. the accused should make a gesture or preparation to use criminal force.

28
 b. Such gestures or preparation should be made in the presence of the person in
respect of whom it is made.
c. The act was with an intention to cause an apprehension of harm or injury;
d. The act caused apprehension in the eyes of the victim that he would be harmed
by another person’s action.
Difference between Assault, Criminal Force and Hurt
When a person intentionally uses force on another person without that person’s
consent, in order to commit an offence and with the prior intention of causing harm to
that person in the form of injury, fear or annoyance to whom the force is used, is said
to use criminal force on the other person. It comes under Section 350 of the Indian
Penal Code whereas assault is when a gesture is made to any person, knowing that the
person is going to apprehend it as the person is going to use criminal force on that
person is known as assault and whoever causes bodily pain, disease or infirmity to
another person is known as hurt. It is defined in Section 319 of the Indian Penal Code.
Outraging Modesty of Women
The law (Section 354 IPC) makes it a special crime to use force against a woman, or
even threaten to use force, if the intention is to 'outrage her modesty'. It treats it more
seriously than normal and criminal force by allowing the police to make arrests for
such crimes without a warrant.
The law does not explain what 'outraging modesty' means. Courts usually make this
determination by looking at all circumstances surrounding the incident. The Supreme
Court referred to 'modesty' as feminine decency and a virtue that women possess
owing to their sex.
The punishment is jail time of between one and five years along with a fine.
Landmark Judgements:
State of Punjab v. Major Singh, AIR 1967 SC 63:
In this case, the suspect interfered with the epithelial duct of a seven and half month-
old kid and was tried beneath section 354 of the IPC. The Patna and Haryana high
courts command that the modesty of the victim couldn't be angry because the victim
was of a young age. However, in associate degree attractiveness to the Supreme Court,
the apex court command that data or intention on the part of the suspect is that the
causal factor associate degreed not the sentiments of the lady against whom such an
act is committed. Moreover, wherever such associate degree intention or data has not
been proved , the proof of the actual fact that the lady felt her modesty was angry

29
doesn't represent associate degree offence, as associate degree intention or data on the
part of the suspect is that the essential ingredient. Therefore, the attractiveness was
allowed and therefore the suspect was guilty by the Supreme Court and was awarded
rigorous imprisonment for an amount of 2 years. A fine of rupees 1000/- was to be
paid by the suspect. Out of that rupees 500/- was paid as a compensation to the kid.
Ramkripal Singh v. State of Madhya Pradesh, AIR 2007 SC 370
In this landmark case, the Supreme Court finally outlined modesty by egg laying
down that the essence of a woman's modesty is her sex. The term modesty in respect
to a girl was outlined as "Decorous in manner and conduct; not forward or lower;
Shame-fast; religiously chaste". The suspect pleaded that he run a lighter penalty
which he be lest command liable beneath section 354 for outraging a woman's
modesty. However, as penetration had taken place, the Supreme Court command that
it brought about rape. Solely acts that stop in need of penetration constitute the scope
of section 354 of the IPC. Therefore, the attractiveness was pink-slipped.
Kidnapping & Abduction
Kidnapping and Abduction are the crime under Indian Penal Code,1860. It talks about
the forcefully taking of the person or a child (from guardianship) with or without the
consent for that matter. Both the offences are given under Chapter 26 – Offences
affecting the Human Body, particularly from section 359 to 366 of Indian Penal code.
Kidnapping
Kidnapping as the word suggest is the act of stealing a child. Under section 360 of
Indian penal code,1860 there are two types of kidnapping i.e. Kidnapping from India
and Kidnapping from lawful guardianship. But there may be cases when both the
kinds can overlap each other. Kidnapping may be done to demand for ransom in
exchange for releasing the victim, or for other illegal purposes. Kidnapping can be
accompanied by bodily injury which elevates the crime to aggravated kidnapping.

30
S. Varadarajan v. State of Madras: An Analysis
The case had an interesting factual matrix that revolved around a minor girl named
Savitri who was on the threshold of attaining majority and the man she eloped with, S.
Varadarajan. Savitri was the daughter of S.Natarajan and had secretly developed
friendship with their neighbour, S. Varadarajan. When reprimanded by her sister, she
confessed that she intended to marry the boy next door (Varadarajan). A furious
Natarajan packed his daughter off to Kodambakkam with the belief that Savitri would
get over her infatuation after a few days of distance. This incident happened on 30th
September, 1960 and the very next day, i.e. on 1st of October, 1960, Savitri contacted

31
Varadarajan over the phone and asked him to meet her on a certain road at a certain
time. Varadarajan co-operated with Savitri and came to the venue by car. Savitri
stepped into the car and both of them went to a friend’s place from where they went
on to purchase some sarees and jewellery. Thereafter they got married at the
Registrar’s office. The couple stayed at a hotel after their marriage, went around a few
places and were finally apprehended by the police at Tanjore, following a complaint
filed by Savitri’s father. The case which had a typical cinematic setting of the sixties
was decided by a three-judge bench comprising of Justice R. Mudholkar, Justice K.
Subbarao and Justice M. Hidayatullah. Very fine and interesting questions of law
were raised and argued upon leading to the delivery of a unique judgment, which was
very ahead of its times.
The primary issue which was raised in this case was whether the acts of the appellant,
Varadarajan could cumulatively amount to the offence of Kidnapping. In order to
establish the offence of kidnapping, the court said, it is necessary to establish whether
the minor had been taken or enticed out of the keeping of the lawful guardian. It said
that while enticement was not in the picture, the court had to find out whether the
appellants act could constitute “taking”. In order to constitute “taking” one of the
essential requirements was the nature of participation of the accused in leading the
minor ‘out of the keeping of the lawful guardian’.
The court looked into the facts of the case and rightfully pointed out that there was
nothing in the facts to suggest that Varadarajan had caused the minor to elope with
him. Rather, Savitri’s deposition made it evident that she had the desire and therefore,
clearly intended to marry Varadarajan. Varadarajan only co-operated with her in
accomplishing her desire. In other words, he facilitated the fulfilment of Savitri’s
intention The court further observed that Varadarajan’s participation in the whole act
was passive- it was in the nature of providing a support-system in giving shape to the
desire of Savitri. The inference was drawn from the fact that it was Savitri who called
Varadarajan up, asked him to meet her at a certain place and time and expressed her
willingness to marry the appellant. That being the case, it cannot be said that
Varadarajan actively induced Savitri to elope with him. At this point, the court also
remarked that for the establishment of the factor of ‘taking’ under the Indian Penal
Code, it is necessary that the accused participates in an ‘active’ manner to walk out of
the custody of his/her lawful guardianship.

32
The Court also pointed out that the socio-economic background of Savitri must be
taken into consideration before convicting Varadarajan. She was an educated girl who
was fully capable of understanding the nature and consequences of her actions. In the
words of the court, Savitri was not a ‘child of tender years’. Although a minor, she
was on the verge of attaining her majority and was capable of taking rational
decisions. The court finally acquitted Varadarajan on the ground that a case under
section 361 was not made out against him as the required parameters for the offence
were not fulfilled.
Sexual Offences under the IPC-Section 375-377
Sex related offences has been recognized as a crime by almost all cultures and
religions throughout the history. It is a grave infraction of human rights of an
individual. Sexual offences competently take the shape of sexual violence which
causes drastic irreparable damage to the physical and mental well-being of the victim.
The human race may have attained development materially and professionally but it is
being achieved to the deterioration of the integrity and temperament of a human being.
Rape
Of all the crimes, rape is the most obnoxious one which violates bodily integrity and
honor of a woman. The word ‘Rape’ has its origin from a Latin term ‘rapio’ which
means ‘to seize’. Precisely it means forceful seizure. Section 375[3] deals with the
provisions related to rape.
As stated by Section 375, Indian Penal Code, A man is said to commit rape if he
penetrates his penis through any extent into the vagina, mouth, urethra or anus of a
woman or inserts any object, to any extent, or any part of a body other than the penis
into the vagina, urethra and anus of a woman or put in his mouth into the vagina,
urethra or anus of a woman or makes her to do so with him or any other person, under
the circumstances falling under following descriptions:
i. Opposed to her will.
ii. In the absence of her consent.
iii. With consent when it has been acquired by putting her or any other person
related to her under the fright of death or hurt.
iv. With consent obtained under the misconception of fact that the man was the
person she was lawfully married to.
v. When the consent is given by reason of unsoundness of mind or intoxication
of any stupefying or unwholesome substance.

33
 vi. When the girl is minor, no matter the consent is given or not.
vii. When she is not able to provide her consent.

Further, the section states that penetration and insertion of object can be to any extent
including even slightly and partially. The physical injuries to the private part of the
woman are not essential. The only fact of penetration is sufficient to hold a person
guilty. Due to increase in instances of rape of a minor, revisions were made to the
rape laws for inclusion of sections 376AB, 376DA, and 376DB.
Marital Rape
It has been recognized as an exception to rape in the definition of rape stating that:
Sexual intercourse or sexual activities with a man with his own wife not being below
fifteen years of age, is not rape.
A wife is presumed to deliver relentless consent to have intercourse with her husband
after setting foot into marital relations. The Supreme Court and various High Courts
of India are currently flooded with writ petitions challenging the constitutionality of
this anomaly, and in a recent landmark judgment, the Supreme Court criminalized
non-consensual sexual contact with spouse between fifteen and eighteen years of age.
Marital Rape is an inhuman practice and an infringement of article 14 and 21 of the
Constitution which should be struck down.
Punishment for Rape
The punishment for the offence is given in Section 376. Whoever, commits rape, shall
be punished with rigorous incarceration of either description for a term which shall
not be less than ten years, but which may extend to incarceration for life, and shall
also be accountable to fine.
Some entities in Section 376 are mentioned individually, to be specific, public
servants, police officers, member of armed forces, member of jail staff management,
hospital management staff, relative or guardian, are also subjected for rigorous
imprisonment for not less than ten years which can be extended up to life
imprisonment and will be liable for fine.
Rape cases that leads to death or permanent vegetative state of the victim becomes
more serious. The offender will then be punished for rigorous imprisonment for a
term which shall not be less than twenty years, which may extend to life
imprisonment. Whoever has sexual intercourse with his spouse, living separately,
without her consent, shall be punished with imprisonment of either for a term which

34
shall not be less than two years but which may extend to seven years, and shall also be
accountable to fine.
The legislation have made separate provision for the sexual intercourse by a person in
authority which means if there is a fiduciary relationship between a man and a woman,
where one person is in a position to dominate the other like the relationship between a
doctor and a patient, or by the manager of a jail of a custody, where a man who has
committed the offence is liable to the rigorous imprisonment for not less than 5 years
which can extend up to 10 years. and is incorporated under Section 376C of the IPC.
Repeat offenders shall be imprisoned for life, or with death.
Gang Rape
When a woman is raped by one or more persons constituting a group or acting in
furtherance with the common intention and each of those persons shall be liable for
the imprisonment for not less than twenty years[16] which can be extended to
imprisonment for life and they would also be liable for fine and the fine will be
reasonable to the medical expenses of the victim and the rehabilitation of the victim.
Case Studies
Vishaka vs. State of Rajasthan and Ors.was a leading light case concerning the
protection of women against sexual harassment at workplace. Supreme Court in this
case held that sexual harassment of a woman at a workplace would be in
contravention of her fundamental rights of gender equality and right to life and liberty
under Articles 14, 15, 19 and 21 of the Indian Constitution. This verdict laid down
various gender impartiality guidelines free from harassment in both public and private
employment.
Later, the government enacted Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act, 2013 which superseded the Vishaka
Guidelines declared by the Supreme Court of India.
Nirbhaya Gang Rape Case
This rape case which occurred in 2012, was considered as the rarest of the rare case.
Various amendments were introduced in the rape laws after this heinous incident. The
accused was punished with death penalty by the trial court which was also upheld by
the high court. The Supreme Court relying on the dying declaration of victim, had
affirmed the death penalty and opined that �where a crime is committed with extreme
brutality and the collective conscience of the society is dismayed, courts must award
capital punishment.

35
Mathura Rape Case
Tuka Ram And Anr vs State of Maharashtra was a custodial rape case, where a girl
was raped in Desai Gunj Police Station in Maharashtra. The Supreme Court held that
sexual intercourse in this case does not constitute rape. Due to the rationale behind
this judgement, huge public outcry took place which led to the Criminal Law( Second
Amendment) Act, 1983.
Unnao Rape Case
In this case, a minor was raped and murdered by a politician in 2017. Later, an
attempt to kill her by a pre-planned car accident was made which led to serious
injuries to the victim and death of two relatives. Supreme Court indulged into the
matter and said, the victims testimony was unblemished truthful and had been proved
to be of sterling quality to arrive at the conclusion that she was sexually assaulted by
Sengar.
Kathua Rape Case
In this case an eight-year-old girl was abducted, raped and murdered in Kathua, J&K.
After this incident The Protection of Children from Sexual Offences Act (POCSO)
was amended and severe punishments were imposed. Three accused were held for
rape and punished with life imprisonment, other three accused were held for
destroying evidence and were awarded five-year imprisonment.
Unnatural Offences
Provision related to unnatural offences is incorporated under Section 377 of the IPC
mentioning about imprisonment for life or of ten years against the one who is
voluntarily doing carnal intercourse against nature with any man, woman or animal
and shall also be liable for fine. This section came into existence in 1861 during the
British rule where the term “against nature” included homosexual activities.
Unnatural offences also include sterilization, sodomy, bestiality etc. This section has
not made any classification between the married or unmarried woman because in
marriage under Hindu Law(Hindu Marriage Act, 1954) also sodomy, bestiality or
sterilization are the grounds for the annulment of the Hindu marriage. Also, the
concept of bestiality revolves around the consent as how can you obtain the consent of
an animal when they are not able to communicate, similarly ‘anal’ or ‘oral’ sex is
equally unnaturally because both these two are out of the scope of the normal sexual

36
intercourse and are physically harmful to both men and woman and are not the
essential ingredients for a sexual intercourse.
Constitutional Validity of section 377
Section 377 was first challenged by an NGO, Naz Foundation and AIDS Bhedbhav
Virodh Andolan in the Delhi High Court in 2001 as violative of the Article 14, Article
15 and Article 21 of the Indian Constitution on behalf of the Lesbians, Gay, Bisexual,
Transgenders because no educational, constitutional rights were there for them, they
were not treated like the ordinary man or woman and thus their conditions were worst.
Then, by taking into consideration the conditions of the transgenders, in 2014, the
Court has made the transgender quota and has categorized them into the Other
Backward Castes(OBC). Later Supreme Court in the Right to Privacy judgement also
called for equality and condemned discrimination, stating that the protection of sexual
orientation lies at the core of the fundamental rights and that the rights of the LGBT
population are real and founded on constitutional doctrine. In January 2018, a three-
member bench of the SC heard the petition by filed by five people to review the
judgement given in Naz Foundation Case and the SC have finally decriminalized
homosexuality by declaring Section 377 of the Indian Penal Code as unconstitutional.
The Apex Court unanimously ruled that individual autonomy, intimacy and identity
are protected fundamental rights and scrapped the controversial Section 377 of IPC- a
158-year-old colonial law on consensual gay sex. The Supreme Court reversed its
own decision and scrapped section 377 of IPC that criminalized homosexuality and
opined that the application of Section 377 to consensual homosexual sex between
adults was unconstitutional, irrational, indefensible and manifestly arbitrary. But
Section 377 remains in force relating to sex with minors, non-consensual sexual acts,
and bestiality.
Proposals for Reform
The punishment given under the provision related to rape under IPC is for
imprisonment for not less than ten years which can extend up to imprisonment for life.
These are the following proposals which should be made regarding these offences-
There should be the provision of the death penalty for the accused where the rape is of
such extent that it has amounted to the death of the victim. Also, the accused which
we witness in these cases, they are not different species but they exist between us only,
therefore, changes are required in the minds of society rather than the law, like, there
should be a strict ban on porn websites, adult entertainment because nowadays in the

37
time of technology, these are accessible to everyone in the society and can be
accessed by even the child who is not even a teenager, therefore, the Ministry of
Information and Technology should take strict action about this problem.
There should be some awareness programs in urban as well as rural areas where the
children, especially girls should be made aware about the good touch and the bad
touch, this will help to prevent the cases of child abuse.
There should be legal awareness programs primarily in the rural areas, about not to
fear from filing a case, if the offence is related to rape, it has to make them understood,
that now the crime has committed and the police, the judiciary will be able to help
them if they wanted them to.
Another big concern is the speedy trial, it is to suggest that in the cases where there is
constructive evidence like CCTV recording etc. where it is clearly seen the identity of
the accused, then, those proceedings should be done quickly.
There should be the programs regarding the sex education to be organized in schools,
so as to aware the students about these things because it is important to aware about
the reproduction process, especially make them aware about the sodomy, bestiality or
sterilization, about the contraceptives which make them aware about these private
things.

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 MODULE 3.
OFFENSES AGAINST WOMEN AND CHILDREN
SECTION 375: RAPE
I. INTRODUCTION
According to Oxford Dictionary Rape is “the act of physically forcing a woman to
have sexual intercourse: an act of sexual intercourse that is forced upon a woman
against her will”. The offence of rape in its simplest term is “the ravishment of a
woman, without her consent, by force, fear or fraud”. It is held in State of
Maharashtra v. M.N. Mardikar that offence of rape is violative of victim’s Right to
life under Art 21 and by its very nature is an obnoxious act of the highest order.
II. ESSENTIAL INGREDIENTS OF RAPE UNDER IPC
After the Criminal Law Amendment of 2013, according to S. 375 of IPC a man is said
to have committed a rape when he himself does ( includes if he makes her to do with
any other person) the following activities:
a) penetrates or inserts his penis or any other object or a part of body (not being a
penis) respectively, to any extent, into the vagina, mouth, urethra or anus of a
woman; or
b) manipulates any part of the body of a woman so as to cause penetration into
the vagina, urethra, anus or any part of body of such woman or; or
c) applies his mouth to the vagina, anus, urethra of a woman or makes her to do
so with him or any other person.
These acts must have been done under seven circumstances as explained below :-
III. DETAILED EXPLANATION OF CIRCUMSTANCES IN WHICH ACTS
AMOUNT TO RAPE
Before explaining the circumstances it is necessary to understand the nature and
meaning of Sexual Intercourse (“SI”) in context of this section.SI by a man with a
woman is necessary to constitute an offence. S. 10- IPC, defines man and woman as a
male and a female human being respectively of any age. In Sakshi v. UOI, it was held
that by a process of judicial interpretation the provisions of S. 375 cannot be altered
so as to include all forms of penetration such as penile/vaginal/oral penetration etc. It
was held that though sexual intercourse has not been defined but it means only
heterosexual intercourse. The afore-mentioned acts must have been done under any of
the seven following circumstances :-

39
Against her will – This expression means that the act must have been done in spite of
woman opposing the same. Absence of injuries on the person of the prosecutrix is not
necessarily an evidence of false allegation or that consent had been given to SI.
Without her consent – Consent is an act of reason coupled with deliberation.
Therefore, this clause operates when a woman is insensible because of influence of
drinks etc. or is so imbecile that she is incapable of giving consent. The Code has
maintained a distinction b/w “against her will” & “Without her consent”. While the
former includes the latter but the latter act is not necessarily against her will.
 Prior Consent – Consent obtained after the act has been done is no defence, it
must be prior to it.
 Presumption as to Consent – Consent or absence of it is generally gathered
from the attendant circumstances. A sleeping person can never consent.
 Presumption as to absence of consent – S. 114A of IEA, 1872, provides that
where sexual intercourse has been proven, and the question is whether it was with
or without the consent of woman allegedly raped u/s 376(2), the court shall
presume that she did not consent.
 With her consent -Where the consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt. In Tukaram v. State
of Maharshtra, it was held that the fear which prompts a woman to give her
consent must be fear of death or hurt to herself or a person in whom she’s
interested. (In my conviction the domain of fear should be widened).
 With her consent – When the man knows that he is not her husband and that
she has consented because she mistakenly believes herself to be lawfully married
to that man.
Case Law :- Bhupinder Singh v. Union Territory of Chandigarh (2008) 8 SCC
531
Facts :- Bhupinder entered into a marital knot with Manjit Kaur; without disclosing to
her about the existence of his previous marriage with Gurinder kaur. Manjit kaur gave
birth to a female child post-sexual intercourse with Bhupinder, whom she believed to
be her husband.
Held :- Accused held guilty of rape as prosecutrix married without knowledge of first
marriage. It was held that consent given under this belief is no consent.
With her consent – When at the time of giving consent, by reason of unsoundness of
mind or intoxication or due to administration of any stupefying or unwholesome

40
substance, she is unable to understand the nature and consequences of that to which
she gives consent. Even if consent is given under these circumstances, it would
amount to rape.
With or without her consent – Sexual intercourse with a woman with or without her
consent when she is under 18 years amounts to rape. The reason for keeping this age
limit is to protect female children from (a) premature cohabitation & (b) from
immature prostitution.
When she is unable to communicate consent – In this case the inability can be because
of any reason.
Note :- Mere penetration is sufficient to constitute sexual intercourse. It is not relevant
as to how far it has entered.
III. EXPLANATIONS & EXCEPTIONS TO S. 375
Explanation 1.—For the purposes of this section, “vagina” shall also include labia
majora.
Explanation 2.—Consent means an unequivocal voluntary agreement. However, if a
woman merely does not physically resist to the act of penetration, it shall not be
obviously regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife (wife not
being under 15 yrs), is not rape. However recently on 11 Oct, 2017 in Independent
Thought v. UOI the apex court held that consensual sex with minor wife, that is if she
is below 18 would amount to rape. It observed that this exception clause created an
unnecessary and artificial distinction b/w married girl child and an unmarried girl
child as it lowered the age of consent for a married girl child. It held that this clause
took away the right of a girl child to her bodily integrity and reproductive choice.
Submission – Though through this act of judicial activism the court has replaced the
age of 15 with 18 under exception 2, but nevertheless, it has refrained itself from
dealing with the issue of marital rape of a woman above 18 years of age.
IV. RELATED CONCEPTS VIS-A-VIS S. 375.
Diff b/w indecent attack(IA), Indecent assault(IAS) & attempt to rape :- An indecent
attack does not amount to attempt to rape unless it is established that the accused was
firmly determined to have his lust satisfied inspite of all obstacles. IAS – unless it
shown that the accused was determined to gratify his passion at all cost inspite of
resistance.

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Corroboration of evidence :- It has been held that for conviction of rape
corroboration is not necessary as no woman would like to throw light on an incident
which would affect her chastity in the peculiar Indian climate. The evidence of
prosecutrix can be the basis for the conviction without corroboration. Prosecutrix is
not an accomplice she stands on a higher footing than injured witness.
Probability of false implication :- No one would concoct a false story of rape just to
falsely implicate someone in the peculiar Indian conditions, therefore, it is very low.
Naming of rape victim : has been deprecated by the Supreme Court.
Sexual Harassment
Sexual harassment is defined under S. 354 A of the IPC as a man committing any of
the following acts:
(i) physical contact and advances involving unwelcome and explicit sexual overtures;
or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks,
This law covers a wide ambit of acts that constitute sexual harassment, including
unwanted verbal or physical advances of any kind. This law is not limited by location
at which the sexual harassment takes place, unlike the law to prevent sexual
harassment at work places which is explained in a later section.
Punishment for Sexual Harassment under the IPC?
The punishment for (i), (ii) and (iii) as given above is rigorous imprisonment for a
term that may extend to 3 years, or a fine, or both while the punishment for (iv) is
either simple or rigorous imprisonment for a term which may extend to 1 year, or a
fine, or both.
Assault or use of criminal force to woman with intent to disrobe
Section 354B of the IPC criminalises assault or use of criminal force against a woman
with the intention of disrobing her, i.e. with the intention of depriving her of her
clothing or forcing her to be naked. Such an act is punishable with either simple or
rigorous imprisonment of 3 to 7 years and a fine. Aiding such a crime also carries the
same punishment.
While this may sound similar to outraging modesty, it isn’t. It is considered an
offence whether or not the man intended to outrage the modesty of the woman.

42
Voyeurism
Section 354C of the IPC criminalises the act of voyeurism. It defines it as a man
watching or capturing the image of a woman engaged in a private act in circumstances
where she would usually not expect to be observed by the perpetrator or by any other
person on the orders of the perpetrator or the distribution of an image so captured by
the perpetrator.
Punishment for an act of voyeurism
The punishment for committing this offence is simple or rigorous imprisonment of 1
to 3 years and a fine. Repeated offenders are punished with simple or rigorous
imprisonment of 3 to 7 years and a fine.
Stalking
Section 354D of the IPC criminalises stalking of a woman by a man. It defines the
Act to include continuous following or contacting a woman by a man or attempts to
contact a woman to build a personal relationship with that women even when the
woman has shown a clear lack of interest. It also include acts of monitoring a
woman’s electronic communication, i.e. communication over emails, social media etc.
DOWRY DEATHS
Dowry death means death in relation to dowry. Death of a bride caused by homicide
or suicide within seven years of her marriage on account of dowry related harassment
is termed as dowry death. Most dowry deaths occur when the bride, unable to bear the
harassment and torture, commits suicide. This is known as constructive homicide
whereby instead of killing of a person by another person, such circumstances are
created, whereby the victim is forced to take his/her own life.
Dowry death has been defined in section 304-B of IPC as follows: “When the death of
a woman is caused by any burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for dowry, such death
shall be called ‘dowry death’, and such husband or relative shall be deemed to have
caused her death”.
Essential Ingredients of Section 304-B IPC
· Death of a Woman: whether homicidal or suicidal, must be caused.
· Death to be non –natural: For this the prosecution is required to rule out the
possibility of a natural or accidental death so as to show the death occurred under

43
non-natural circumstances. Death due to burning, bodily injury, strangulation,
poisoning, hanging etc. is all non natural causes of death · Death to occur within
seven years of her marriage:
For prosecution under 304-B the statutory time period of seven years must not have
elapsed. This period of seven years has to be counted from the date of marriage and
not from the date of the ceremony of sending of the girl.
In D.S. Shishodia v. K.C. Samdariya (2001 Cr.L.J. NOC 156
Raj) the Rajasthan High Court held that the date of marriage should be reckoned from
the date of solemnization and not from the date of ‘Muklava’ ceremony.
· She must have been subjected to cruelty or harassment by her husband or any
relative of her husband: The term cruelty used here includes physical as well as
mental cruelty and also of the description mentioned under section 498-A of Indian
Penal Code.
In the case of Shanti (Smt.) v. State of Haryana, (AIR 1991 SC 1226), the supreme
court said, “In Section 304B there is no explanation about the meaning of ‘cruelty’
but, having regard to the common background of such offences, we have to take that
the meaning of ‘cruelty or harassment’ will be the same as we find in the explanation
to Section 498A under which cruelty by itself amounts to an offence and is
punishable”.
Such cruelty or harassment should be for, or in connection with demand for dowry:
The word ‘Dowry’ has to be understood as it has been defined under Section 2 of the
Dowry Prohibition Act, 1961. The crucial words in the definition are ‘in connection
with the marriage of the said parties’. This means that “giving or agreeing to give any
property or valuable security at any time should be in connection with the marriage of
the parties. There can be many other instances of payment of money or giving
property to any of the spouses. For example some customary practices in connection
with the birth of a child or other ceremonies are prevalent in different societies. Such
payments are not enveloped within the ambit of the term ‘dowry” (Satvir Singh v.
State of Punjab, (2001) 8 SCC 633).
Similarly demand for money on account of financial stringency or for meeting urgent
domestic expenses are not demand for dowry (Appasaheb v. State of Maharashtra,
AIR 2007 SC 763). · Such cruelty or harassment should be shown to have been meted
out to the woman soon before her death.

44
The words ‘soon before her death’ used in Section 304-B of IPC and Section 113-B of
the Evidence Act means that there must be a proximate and live link i.e. a perceptible
nexus between the effect of cruelty based on dowry demand and the concerned death.
The time interval between the two must not be much.

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 MODULE 4
OFFENSES AGAINST PROPERTY

Theft (Section 378)

In order to constitute the offence of theft, the following five elements are essential:

(i) it should be a movable property;

(ii) in the possession of anyone;

(iii) a dishonest intention to take it out of that person’s possession;

(iv) without his consent and

(v) a moving in order to such taking

Pyare Lal Bhargava vs State Of Rajasthan on 22 October, 1962

Equivalent citations: 1963 AIR 1094, 1963 SCR Supl. (1) 689

Author: K Subbarao
Bench: Subbarao, K.

Facts:- Appellant was a Superintendent in the Chief Engineer's office and got a file
removed from the Secretariat through a clerk, took it home and made it available to
his friend, the co-accused, who removed certain documents by substituting others.
The appellant returned the file to the office that next day.
Issue:-
Whether temporary removal of property from the possession of one , with the
intention to restore it later , amounts to theft ?

The last point is that on the facts found no case of theft has been made out. The facts
found were that the appellant got the file between December 15 and 16, 1948, to his
house, made it available to Ram Kumar Ram and on December 16, 1948, returned it
to the office. On these facts it is contended that the prosecution has not made out that
the appellant dishonestly took any movable property within the meaning of s. 378 of
the Indian Penal Code. The said section reads :

46
"Whoever, intending to take dishonestly any movable property out of the possession of
any person without that person's consent, moves that property in order to such taking,
is said to commit theft.

The section may be dissected into its component parts thus : a person will be guilty of
the offence of theft, (1) if he.- intends to cause a wrongful gain or a wrongful loss by
unlawful means of Property to which the person gaming is not legally entitled or to
which the person losing is legally entitled, as the case may be:

See ss.23 and 24 of the Indian Penal Code; (2) the said intention to act dishonestly is
in respect of movable property; (3) the said property shall be taken out of the
possession of another person without his consent; and (4) he shall move that property
in order to such taking. In the present case the record was in the possession of the
Engineering Department under the control of the Chief Engineer. The appellant was
the Superintendent in that office; he took the file out of the session of the said
engineer. removed the file from office and handed it over to Ram Kumar Ram. But it
is contended that the said facts do not constitute the offence of theft for three reasons,
namely,

(i) the Superintendent was in possession of the file and therefore he could not have
taken the file from himself;

ii) there was no intention to take it dishonestly as he had taken it only for the purpose
of showing the documents to Ram Kumar Ram and returned it the next day to the
office and therefore he had not taken the said file out of the possession of any person;
and

(iii) he did not intend to take it dishonestly, as he did not receive any wrongful gain
or cause any wrongful loss to any other per-son. We cannot agree that the appellant
was in session of the file. The file was in the Secretariat of the Department concerned,
which was in charge of the Chief Engineer. The appellant was only one of the officers
working in that, department and it cannot, therefore, be said that he was in legal
possession of the file.

47
Nor can we accept the argument that on the assumption that the Chief Engineer was
in possession of the said file, the accused had not taken it out of his possession.

To commit theft one need not take movable property permanently out of the
possession of another with the intention not to return it to him. It would satisfy the
definition if he took any movable property out of the possession of another person
though he intended to return it later on. We cannot also agree with learned counsel
that there is no wrongful loss in the present case.

Wrongful loss is loss by unlawful means of property to which the person losing it is
legally entitled. It cannot be disputed that the appellant unauthorisedly took the file
from the office and handed it over to Ram Kumar Ram. He had, therefore, unlawfully
taken the file from the department, and for a short time he deprived the Engineering
Department of the possession of the said file. The loss need not be caused by a
permanent deprivation of property but may be caused even by temporary
dispossession, though the per-son taking it intended to restore it sooner or later. A
temporary period of deprivation or dispossession of the property of another causes
loss to the other. That a person- will act dishonestly if he temporarily dispossesses
another of his property is made clear by illustrations (b) and (1) of s.378 of the Indian
penal code. They are:

(b) A puts a bait for dogs in his pocket, and thus induces z's dog to follow it. Here, if
A's intention be dishonestly to take the dog out of Z's possession without Z's consent,
A has committed theft as soon as Z's dog has begun to follow A.

(1). A takes an article belonging to Z out of Z's possession without Z's consent, with
the intention of keeping it until he obtains money from Z as a reward for its
restoration. Here A takes dishonestly; A has therefore committed theft.

It will be seen from the said illustrations that a temporary removal of a dog which
might ultimately be returned to the owner or the temporary taking of an article with a
view to return it after receiving some reward constitutes theft, indicating thereby that
temporary deprivation of another person of his property causes wrongful loss to him.
We, therefore, hold that the facts found in this case clearly bring them within the four
comers of s. 378 of the Indian Penal Code and, therefore, the courts have rightly held

48
that the appellant had committed the offence of theft. No other Point was pressed
before us. In the result the appeal fails and is dismissed.

Taking definitions under Section 23 and 24 together, a person can be said to have
dishonest intention if in taking the property it is his intention to cause gain by
“unlawful means” of the property to which the person so losing is legally entitled. It is
further clear from the definition that the gain or loss contemplated need not be a total
acquisition or a total deprivation, but it is enough if it is temporary retention of
property by the person wrongfully gaining or a temporary “keeping out” of property
from the person legally entitled. This is clearly brought out in illustration (1)
to section 378 of the IPC and is uniformly recognised by various decisions of the
High Court which point out that in this respect “theft” under the IPC differs from
“larceny” in English 1aw, which contemplated permanent gain or loss. This same
ratio was also upheld in the case of KN Mehra v State of Rajasthan. 1 The Supreme
Court, in line with the Pyare Lal dictum, in State of Maharashtra v Vishwanath
tukaram Umale,47 held that the transfer of movable property without consent of the
person in possession need not be permanent or for a considerable length of time nor is
it necessary that the property should be found in possession of the accused. Even a
transient transfer of possession is sufficient to meet the requisites of “theft”. 2

Extortion

Ingredients (Section 383)

The essential ingredients of the offence of extortion are:

(i) intentionally putting a person in fear of injury;

(ii) the purpose of which is to dishonestly induce the person put in fear and

(iii) to deliver property or valuable security.

As regards to extortion, what do you mean by ‘whoever intentionally puts any person
in fear’. The question for the court will be what is the degree of fear which would
justify a person of ordinary strength of mind in giving up his property, in order to

1
AIR 1957 SC 369 [LNIND 1957 SC 14]: (1957) Cr LJ 552 (SC).
2
Ingredients PSA Pillai: Criminal Law, 14th ed

49
escape from the injury with which he was threatened. In the English case Re Miard,3
threats to expose a clergyman, who had intercourse with a woman in a house of ill
fame, to his own church and village, bishop and archbishop and also to publish his
shame in the newspaper, was held to be such a threat as a man of ordinary firmness
could not be expected to resist. Fear must be of such a nature as, in reason and
common experience, is likely to induce a person to part with his property against his
will, and to put him as it were under a temporary suspension of the power of
exercising it through influence of the terror impressed; in which case, fear implies, as
well in sound reason as in legal construction, the place of force, or an act ual taking
by violence or assault upon the person.

Indrasan Kuer vs Sia Ram Pandey And Ors. on 6 February, 1969

Equivalent citations: 1969 (17) BLJR 539

Author: B Sinha

Bench: B Sinha

JUDGMENT B.P. Sinha, J.

Facts: On the date of occurrence the opposite party variously armed came to her house,
assaulted her and forcibly took her thumb impression on several pieces of paper.
When on hulla her brother Jugal and Pujari Satyadeo Ojha along with other persons
arrived, they assaulted Jugal and Satyadeo as well and forcibly took thumb impression
of Satyadeo also on some pieces of paper. They also removed two boxes containing
ornaments and cash along with other articles belonging to the informant.

Issue

Whether the facts prove out that the thumb impression on property papers was taken
as a result of fear of injury falls within the ingredients of offences under Sections
386 and 395 of the Code?

Judgment

3. Section 386 of the Code runs as follows:

3
AIR 1965 SC 585 [LNIND 1963 SC 231].

50
whoever commits extortion by putting any person in fear of death or of grievous hurt
to that person or to any other, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

'Extortion' has been defined in Sections 383 of the Code as follows:

whoever intentionally puts any person in fear of any injury to that person, or
to any other, and thereby dishonestly induces the person so put in fear to
deliver to any person any property or valuables-security or anything signed or
sealed which may be converted into a valuable security, commits 'extortion'.

So one of the necessary ingredients of the offence of extortion is that the victim must
be induced to deliver to any person any property or valuable security, etc. That is to
say, the delivery of the property must be with consent which has been obtained by
putting the person in fear of any injury. In contrast to theft, in extortion there is an
element of consent, of course, obtained by putting the victim in fear of injury. In
extortion the will of the victim has to be overpowered by putting him in fear of injury.
Forcibly taking any property will not come under this definition. It has to be shown
that the person was induced to part with the property by putting him in fear of injury.
The illustrations to the section given in the Code make this perfectly clear. In this
connection, reference can be made to a decision of this Court in Judunandan Singh v.
Emperor A.I.R. 1941 Pat. 129. In that case also, the victims were assaulted and their
thumb impressions were forcibly taken. In view of the facts, quoting the following
observation in a division bench decision of this Court in Ratnyad Singh v. Emperor
Cr. Rev. No. 125 of 1931

If the facts had been that the complainant's thumb had been forcibly seized by one of
the petitioners and had been applied to the piece of paper notwithstanding his
struggles and protests, then I would agree that there is good ground for saying that the
offence committed whatever it may be, was not the offence of extortion because the
complainant would not have been induced by the fear of injury but would have simply
been the subject of actual physical compulsion....

It was held:

51
It is clear that this definition makes it necessary for the prosecution to prove that the
victims Narain and Sheonandan were put in fear of injury to themselves or to others,
and further, were thereby dishonestly induced to deliver papers containing their thumb
impressions. The prosecution story in the present case goes no further than that thumb
impressions were 'forcibly taken' from them. The details of the forcible taking were
apparently not put in evidence. The trial court speaks of the wrists of the victims
being caught and of their thumb impressions being then taken;... The lower courts
only speak of the forcible taking of the victims thumb impression; and as this does not
necessarily involve inducing the victim to deliver papers with his thumb impressions
(papers which could no doubt be converted into valuable securities). I must hold that
the offence of extortion "is not established.

Now it has to be seen from the evidence of this case whether the ingredients of
extortion are there. Indarasana Devi (P.W. 7) has stated that the accused persons
abused her and on protest accused Naulakh Pandey ordered that she be turned out
from the house and her thumb impression be taken on blank pieces of paper, upon this
Chanderma Pandey and Sia Ram Pandey forcibly took her thumb impression on 8 to
10 pieces of blank paper. She does not say that she was forced by putting her in fear
of injury to give her thumb impression on blank pieces of paper and deliver those
papers to the accused. Her statement clearly indicates that the accused persons
forcibly took the thumb impression and not that she had delivered the paper
containing her thumb impression to them. This is further apparent from the statement
of P.W. 5 who has said that accused Chanderma caught hold of the hand of the
complainant and accused Sia Ram took the thumb impression. Therefore, the facts of
this case do not indicate that the complainant was induced to deliver the papers
containing her thumb impression to the accused persons. The necessary ingredient of
extortion is, therefore, wanting. Hence, prima facie no case under Section 386, I P.C.
has been made out.

4. So far as the contention of the petitioner that the facts constitute offence
under Section 395, I.P.C. is concerned, I see no merit in it as well. It is said that theft
was one of the dominant objects of the unlawful assembly of these members of the
opposite party and for the purpose of committing that theft force was used and as such
the offence of dacoity is made out. Dacoity is commission of robbery by 5 or more

52
persons. When 'theft' becomes 'robbery' has been stated in Section 390 of the Code
thus:

Theft is 'robbery' if, in order to the committing of the theft, or in committing the theft,
or in carrying away or attempting to carry away property obtained by the theft, the
offender, for that end, voluntarily causes or attempts to cause to any person death or
hurt or wrongful restraint, or fear of restraint.

From the definition, it is quite clear that there should be use of force or attempt to use
force for the purpose of committing theft or in carrying away or attempting to carry
away property obtained by theft. Mere fact that the assault and the theft took place in
the same transaction is not enough. The assault must be to facilitate commission of
theft. In this connection reference can be made to a decision of a division bench of
this Court in Parti Kumhar v. Ahir Kumar . There it was observed as under:

It is not in every case where theft has been committed as well as assault, that the
transaction becomes robbery. The assault must be found to have been committed for
the purpose of commiting the theft, or in carrying away or attempting to carry away
property obtained by theft.

The same view has been expressed in a decision in Maghaji v. State A.I.R. 1953
Saurashtra 85. There a number of persons entered the house with the idea to take
revenge and there was assault and while going away one of the culprits took away the
gun of the victim. It was held that the assault was not for facilitating the commission
of theft, etc., it had no relation to the removal of gun and as such the offence was
mere theft. Here, from the evidence of Indrasana Devi, it docs not appear that the
object of the unlawful assembly of the members of the opposite party was to commit
theft by causing hurt or fear of hurt, etc. The Mossomat has said that accused Naulakh
ordered that the complainant be turned out of the house and her thumb impression be
taken on piece of blank paper. This was done just to wreak vengeance because of the
Mossomat executing deed in favour of son of her brother, in respect of her property
thereby depriving the opposite party of the prospect of getting it as reversioners. She
does not say that the order was to take away her property as well. There is no such
allegation in the complaint petition. It appears that theft was an independent act of
some of the accused persons, and it was not the dominant purpose of the unlawful

53
assembly. Threat was not given for that purpose. That being so, no offence
under Section 395 of the Code is made out on the statements of the witnesses.

Difference between Theft and Extortion

The offence of extortion is carried out by overpowering the will of the owner. In theft,
the offender’s intention is always to take without the person’s consent.

Besides, the property which is obtained by extortion, is not limited as in theft to

movable property only.

As already indicated, the radical difference between theft and extortion or robbery is
that in the latter cases, the offence is carried out by overpowering the will of the
owner and thereby inducing him to give up his own property.

Dhananjay @ Dhananjay Kumar Singh vs State Of Bihar & Anr on 2 February,

2007
Author: S Sinha
Bench: S.B. Sinha, Markandey Katju
CASE NO.: Appeal (crl.) 149 of 2007
Facts :- Accordion tho the appellant, some unknown persons had come to his room
No.207 at Jagat Trade Centre at Fraz ser Road, Patna and informed him that as a sum
of Rs.1500/- was due to him, he should make the payment thereof. Allegedly, on his
reply that he would make the payment only of the amount due from him as per settled
accounts; abusive language was used and he was slapped by one Gautam Dubey. A
sum of Rs.1580/- was said to have been taken away from his upper pocket.

Issues
Would the case fall under the offense of Extortion ?

Judgment

Section 384 provides for punishment for extortion. What would be an extortion is
provided under Section 383 of the Indian Penal Code in the following terms:

54
"383. Extortion:- Whoever intentionally puts any person in fear of any injury to that
person, or to any other, and thereby dishonestly induces the person so put in fear to
deliver to any person any property or valuable security, or anything signed or sealed
which may be converted into a valuable security, commits "extortion"."

A bare perusal of the aforementioned provision would demonstrate that the following
ingredients would constitute the offence :

1. The accused must put any person in fear of injury to that person or any other
person.

2. The putting of a person in such fear must be intentional.

3. The accused must thereby induce the person so put in fear to deliver to any person
any property, valuable security or anything signed or sealed which may be converted
into a valuable security.

4. Such inducement must be done dishonestly.

A First Information Report as is well known, must be read in its entirety. It is not in
dispute that the parties entered into transactions relating to supply of bags. The fact
that some amount was due to the appellant from the First Informant, is not in dispute.
The First Information Report itself disclosed that accounts were settled a year prior to
the date of incident and the appellant owed a sum of about Rs.400-500 from Gautam
Dubey.

According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due to
him.

It is in the aforementioned premise the allegations that Gautam Dubey and the
appellant slapped the First Informant and took out Rs.1580/- from his upper pocket
must be viewed.

No allegation was made that the money was paid by the informant having been put in
fear of injury or putting him in such fear by the appellant was intentional.

55
The First Informant, admittedly, has also not delivered any property or valuable
security to the appellant.

A distinction between theft and extortion is well known. Whereas offence of extortion
is carried out by over-powering the will of the owner; in commission of an offence of
theft the offender's intention is always to take without that person's consent.

Dishonest Misappropriation of Property S 403-409

Misappropriation means to take possession of property and putting it to unauthorised

or wrongful use.
The words “convert to own use” means dealing with the property of another, as if it is
one’s own property. If a watch was found on the road, if the person, who found it,
instead of wearing it, sells it to somebody, else or pawns it to somebody then it would
amount to converting the property for one’s own use. There must be actual
conversation of the thing misappropriated to his use. Mere retention of the property
does make him guilty of misappropriation. 4

Ramaswamy Nadar vs The State Of Madras,

AIR 1958 SC 56

The appellant used to carry on prize-competitions as the proprietor of the Lotus Cross
Words'. Certain persons who had paid moneys in connection with the prize-
competition No. 92, complained that they had not received their prize money though
it had been announced that they had competed for the prizes' offered. The police, after
investigation, submitted a charge-sheet against the accused to the effect that he had,
between May 20, 1955, and June 10, 1955, in his capacity as the proprietor of the
'Lotus Cross Words', dishonestly induced P.Ws. 1 to 3 to compete in his " bumper
competition " No. 92, by paying entry fees to the tune of Rs. 2,640 on the
representation that the prize winners will get a sum of Rs. 3,10,000, and that on that
representation, he had collected one lac and fifteen thousand odd rupees from the
public, out of which he had spent about nineteen thousand rupees towards expenses of

4
Emperor v Phul Chand Dube, AIR 1929 All 917; Rama Swamy Nadar v State, AIR 1958 SC 56 [LNIND
1957 SC 102]: (1958) Cr LJ 228 (SC).

56
advertising and holding the competition. Though P.Ws. 1 to 3 and others had been
declared as the first prize winners, the accused had not distributed even the amount
actually collected minus the expenses aforesaid, that is to say Rs. 96,000 odd, the
amount of the net collections. Tile prosecution examined a number of witnesses to
prove that the' appellant had been holding crossword competitions and a large number
of persons had paid moneys by way of entry fees; that the competition in question,
namely, competition No. 92, had been advertized with a guaranteed sum of Rs.
3,10,000 by way of prizes; that as a matter of fact a much smaller sum had been
collected by way of entry fees; that the three prosecution witnesses aforesaid and
others had been, in due course, declared to be the first prize winners, but that none of
them had been paid any money. It is also in evidence that a large number of other
bumper competitions', namely, Nos. 80, 84 and 88, had similarly been held, and large
sums were advertised to have been guaranteed as prize moneys. None of those
'bumper competitions' yielded the sums so guaranteed. The gravamen of the charge
against the accused was that in spite of his recent experience that none of those
'bumper competitions' attracted a sufficiently large number of competitors to yield the
guaranteed prize money, the accused had advertised the competition No. 92 with a
guaranteed prize money of Rs. 3,10,000 and that in spite of his having collected about
one lac and fifteen thousand odd rupees by way of entry fees, none of the prizes
declared to have been won by prosecution witnesses 1 to 3 and others, had actually
been paid. It was, therefore, suggested by the prosecution that the recent history of the
prize competitions conducted by the appellant, would show that he was actuated by a
dishonest intention when he collected one lac and fifteen thousand odd rupees by way
of entry fees, and did not utilize any part of the collected amount towards payment of
the prizes offered. A large volume of documentary evidence furnished by the
appellant's registers and account books, was adduced in support of the prosecution
case. In his defence, the appellant stated in his written Statement that he started the
'Lotus Cross Words' in August, 1953, with a capital of twenty thousand rupees, and
conducted 93 competitions, but due to insufficient Collections in the recent
competitions, he was not able to respect all his obligations, so much so that he was
forced to close down the business owing to loss, on June 22, 1955. And to show his
bona fides, he had disbursed over a lac of rupees even after the closure of the business
and had settled the claims of six thousand out of seven thousand prize winners. He,

57
thus, claimed that less than one thousand persons' claims had remained unsatisfied in
spite of his borrowing money lo carry out his obligations.
…………………………………………………………………………………………
….
The question is: was the High Court justified in coming to the conclusion that "
misappropriation is clearly established? " In our opinion, the High Court has erred in
coming to that conclusion. In order to prove an offence under s. 403, Indian Penal
Code, the prosecution has to prove that the property, in this case, the net amount of
ninety six thousand odd rupees, was the property of the prosecution witnesses 1 to 3
and others, and (2) that the accused misappropriated that 95 sum or converted it to his
own use, and (3) that he did so dishonestly. In our opinion, none of these constituent
elements of the offence can be categorically asserted to have been made out. The
entry fees rightly came into the coffers of the accused. No doubt, he had promised to
award prizes of the total value of Rs. 3,10,000, but there was no further obligation that
the prize money had to come either wholly or in part, from out of the sum collected by
him by way of entry fees. He was carrying on the business and was found by the
courts below to have disbursed lacs of rupees to winners of prizes in the previous
competitions, and it was conceded on behalf of the prosecution that there is no
express provision in the rules and conditions of the " Lotus Cross Words " exhibited
in this case that there was any obligation on the part of the appellant to set apart
specific sums collected by way of entry fees for disbursement amongst the prize
winners. As a matter of contract, the legal liability of the appellant to pay the prize
winners was there irrespective of the consideration whether or riot he made enough
money to provide for the payment of the prizes declared as a result of the competition.
But it was sought to be argued that though there was no specific provision in any
statute or other law that the money collected by way of entry fees, should be reserved
for payment to the prize winners in that very competition, the appellant was some sort
of a trustee or bailer and should have seen to it that the collected amount was
disbursed amongst the prize winners. There was no such entrustment nor was there
any rule laid down for appropriation of the sum collected in a particular way. There
being no duty to make appropriation in a particular way, the appellant could not be
held guilty of having misappropriated the ninety six thousand odd rupees which was
the total net collection in competition No. 92. As already pointed out, the learned trial
magistrate had come to the finding that there is no evidence that any amount out of

58
this collection had been appropriated by the appellant to his own personal use.
Whatever amount he had been collecting, he had been applying to running his
business. It is true that the later competitions were a losing concern, but as rightly
pointed out by the learned trial magistrate. the appellant cannot be criminally liable
for being reckless or unwise in carrying on his business. In our opinion, therefore, the
learned Judge below was in error in characterizing the order of acquittal as a perverse
one. The learned Judge's decision is based on an erroneous assumption that the
appellant was bound by law to disburse the amounts collected in a particular
competition amongst the prize winners of that competition. But it has not been
pointed out by what process that conclusion was reached. Nor has the learned counsel
for the respondent brought any statutory or other rule to our notice casting an
obligation on the appellant to appropriate the entry fees in a particular manner. That
being so, it must be held that misappropriation has not been made out either on
evidence or as a matter of law.

The Supreme Court held that the words used in section 403 such as ‘converts to his
own use’ necessarily connotes that the accused has used or dealt with the property in
derogation of the rights of the owner of the property.
Criminal Breach of Trust
The essential ingredients of criminal breach of trust are:

(i) a person must be entrusted with property or with dominion over it, and
(ii) he must have dishonestly misappropriated the property or converted it to his
own use or dishonestly disposed of it, and
(iii) such misappropriation, conversion, use or disposal has been done in violation
of such trust.

There are two distinct parts involved in the commission of the offence of criminal
breach of trust. The first consists of the creation of an obligation in relation to the
property over which dominion or control is acquired by the accused. The second is
a misappropriation or dealing with the property dishonestly and contrary to the
terms of obligation created. The principal ingredients of criminal breach of trust,
thus, are “entrustment” and “dishonest misappropriation”.

Bhuban Mohan Das vs Surendra Mohan Das on 26 February, 1951

59
Equivalent citations: AIR 1951 Cal 69, 55 CWN 541

Facts:- The petitioner. and the opposite party who preferred the complaint were
partners and it is said that they carried on business at a shop situate at No. 34
Bellillios Road, Howrah. The business was a business of selling ghee, butter and
stationery articles. On 12-2-1950 communal disturbances took place in Howrah and
according to the complainant the petitioner. proposed to him that all the articles in the
shop should be removed to the petitioner.'s house at 29/2 Beniatolla Lane, Calcutta
which was outside the danger zone. The complainant stated that he agreed whereupon
the petitioner. procured a taxi cab and loaded it with articles which were in the shop.
The communal disturbances passed off and according to the complainant he went to
the petitioner.'s house on 1-3-1950 to collect the articles and bring them back to the
shop. The petitioner., it is said, told the complainant that he would return the articles
in two or three days' time, but this he did not do. On 15-3-1950 the complainant stated
that he again went to the petitioner.'s house to obtain the articles and he was then told
by the petitioner. that he had no knowledge of the articles at all.

Can a charge under Section 406, Penal Code be framed against a person who,
according to the complainant, is a partner with him and is accused of the offence in
respect of property belonging to both of them as partners ?

7. Section 406, Penal Code, provides :

"Whoever commits criminal breach of trust shall be punished with imprisonment of

either description for a term which may extend to 3 years, or with fine or with both."

8. The phrase "criminal breach of trust" is defined in Section 405, Penal Code, in
these terms :

"Whoever, being in any manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or converts to his own USB that property or
dishonestly uses or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of any legal contract,
express or implied, which he has made touching the discharge of such trust or wilfully
suffers any other person so to do commits 'criminal breach of trust'."

60
9. It seems clear that before criminal breach of trust is established it must be shown
that the person charged has been entrusted with property or with dominion over
property & that he has been guilty of 'breach of trust' using that latter phrase loosely.
There must be entrustment & therefore the person accused must be shown to have
held the property in a fiduciary capacity.

10. On behalf of the petitioner. it has been argued that a partner. does not in the
ordinary course hold partnership property in a fiduciary capacity. The partnership
property belongs to the partners. & one partner. apart from any special agreement, has
as much right to the property as any other partner. A partner. who holds partnership
property, it is said, holds it in his own right & it cannot possibly be said that he holds
it in a fiduciary capacity.

11. The question whether a partner. received or held partnership property in a

fiduciary capacity was considered by the English Cts. in the case of Piddocke v. Burt,
(1894) 1 Ch. 343 : (63 L. J. Ch. 246) where it was held that one partner. receiving
assets of the partnership on account of himself & his co-ptnrs. is not liable to
imprisonment under Section 4(3). Debtors Act, 1869 as a person acting in a, fiduciary
capacity.

12. The point which had to be considered in that case was whether a partner. who had
retained certain of the partnership assets could be said to have acted in a fiduciary
capacity. At p. 346 Chitty J. observed :

"The case of a partner. is quite different from these cases, because he receives money
belonging to the firm on behalf of himself & his co-paters. & it appears to me that I
should be straining the law if I were to hold that a partner. receiving money on
account of the partnership -- that is, on behalf of himself & his co-partners. -- received
it in a fiduciary capacity towards the other partners. The law allows one partner. one
of several joint creditors--to receive the whole debt on account of the firm to whom it
ia due, & I am unable to recognise any such distinction, as was endeavoured to be
made by Mr. Church, between the case of a partner receiving money of the firm & not
accounting for it, & that of a partner. overdrawing the partnership account ; because if
this distinction were true, it would apply to every case where one partner. wrongly
overdraws the partnership account."

61
13. The learned Judge having held that a partner. who received payment of a debt due
to the partnership firm did not hold the money in a fiduciary capacity, held that no
offence had been committed under the Debtors Act.

14. If a partner. who receives money on behalf of the partnership does not receive it in
a fiduciary capacity then it appears to me that he could not be charged with fraudulent
breach of trust by reason of his failing to account for that money. Similarly, if a
partner. is holding property belonging to the partnership, he is holding it as one of the
partners. entitled to hold it &, therefore, I think it could not be said that he was
holding it in a fiduciary capacity, that is, as a kind of trustee for himself & his other
partners. If he could not be said to be holding the property in a fiduciary capacity then
it is difficult, & indeed impossible, to hold that he could be said to have been
entrusted with that property.

15. It is quite clear that at common law in England a partner. could not be charged
with larceny of partnership property, neither could he be charged with embezzlement
of such property. As agent of the firm a partner. could be said to have received
property on behalf of the firm & if he did not account for it, it could be said that he as
an agent or servant of the firm had embezzled the money. Nevertheless at common
law he could not be prosecuted for embezzlement. To meet the difficulty a special
section was enacted in the Larceny Act & thereafter a partner. could be prosecuted for
larceny or embezzlement of partnership property. Under the old common law it was
impossible to charge a partner. with larceny because the property alleged to have been
stolen was as much the accused's property as the property of the other partners.
Similarly, the money said to have been embezzled was as much the accused's property
as that of his co-partner. The difficulty was realised in English law & was met by the
enactment of a special provision. But there is no such special provision in the Indian
law.

16. The rights of partners. in partnership property is dealt with by Lord Lindley in his
book on Partnership, Edn. 10 at p. 415 in these words:

"In the absence of a special agreement to that effect, all the members of an ordinary
partnership are interested in the whole of the partnership property, but it is not quite
clear whether they are interested therein as tenants-in-common, or as joint tenants

62
without benefit of survivorship, if indeed there is any difference between the two. It
follows from this community of interest, that no partner. has a right to take any
portion of the partnership property & to say that it is his exclusively. No partner. has
any such right, either during the existence of the partnership or after it has been
dissolved. What is meant by the share of a partner. is his proportion of the partnership
assets after they have been all realised & converted into money, & all the partnership
debts & liabilities have been paid & discharged. This it is, & this only, which on the
death of a partner. passes to his representatives, or to a legatee of his share."

Again at p. 419 Lord Lindley observed :

"From the principle that a share of a partner. is nothing more than his proportion of
the partnership assets after they have been turned into & applied in liquidation of the
partnership debts, it necessarily follows that, in equity, a share in a partnership,
whether its property consists of land or not, must, as between the real & personal
representatives of a deceased partner., be deemed to be personal & not real estate."

17. From these observations, it is clear that the share of a partner. in the partnership
assets cannot be predicated until an account has been taken & all the debts have been
discharged. Until that has been done, it cannot be said that a partnership asset belongs
to any particular partner. or that any particular share of it belongs to any particular
partner. That being so, if one partner. retains a partnership asset can it be said that
property belonging to somebody else has been entrusted to him, or at least the share of
his co-partner. has been entrusted to him? It may be that two persons each own a half
share in a partnership & at first sight it might appear as if each would own a half of
every asset of the partnership. However, that by no means follows, because if at any
given moment the partnership account was taken & the debts discharged, it might be
that the assets belonged wholly to one of the partners., or indeed after payment of
debts there might be no assets at all for any of them. It is, therefore, impossible to say
at any given moment before accounts have been taken, what share, if any, a partner.
has in the property. Until dissolution & accounts each partner. must be regarded as
having a right to the property & he does not hold it in a fiduciary capacity.

18. It seems to me that if a partner. is to be charged under Section 406, Penal Code, it
must be held that property belonging to somebody else was entrusted to him. A

63
partnership firm has no existence apart from the partners. & is not an entity like a
limited company which can own property. If a partner. holds partnership property it
cannot be said that he has been entrusted with his own share in the property if he had
any share in it. But can it be said that the partner. has been entrusted with the other
partner.'s share? The question immediately arises what is the other partner.'s share, &
as pointed out by Lord Lindley, he has no definite share until the accounts have been
taken & the debts discharged & the assets divided according to the partnership
agreement. That being so, it appears to me that it cannot be said that a partner. who
received partnership property is entrusted with his co-partner.'s share of that property
to bring the case within Section 406, Penal Code.

19. The rights of a partner. in any particular asset was considered by their Lordships
of the P. C. in the case of Gopala Chetty v. Vijayaraghavachariar, (1922) 1 A. C. 488 :
(A. I. R. (9) 1922 P. C. 115) in which it was held that if a partnership had been
dissolved but no account had been taken, the proper remedy of a partner. in respect of
an asset received by another partner. was to have an account taken & if his right to sue
for an account was barred by limitation he could not sue the partner. who had received
the asset for a share of it. Their Lordships of the P. C. in other words held that even
after a partnership had been dissolved a partner. cannot sue another for a definite
share in an asset because it is not known whether he has a share & if he has, what the
extent is unless an account has been taken & the debts have all been paid. If even after
dissolution, a partner. could not sue another partner. for his share of an asset then it
seems to me quite impossible to suggest that the partner. who retained that asset was
holding at least a share of that asset in a fiduciary capacity on behalf of his co-partner.
Unless the relationship of partnership imposes on one partner. holding property
fiduciary obligations, then it appears to me that it cannot be said that that partner., if
he holds property of the partnership with the consent of the others, has been entrusted
with it, & that he is guilty of a fraud on his trust in not accounting to his co-partners
for the property.

20. This matter has been considered by this Ct. in a number of cases. The first case is
the case of Lall Chand Roy, 9 W. R. (Cr.) 37. There the accused was convicted of
criminal breach of trust in respect of the value of goods which had been entrusted to
him to sell. It was urged before the H. C. that the conviction could not be sustained, as

64
the accused was a partner. with the prosecutor. It was held by Kemp & Mitter JJ. that
being a partner. he could not be prosecuted. Jackson J. took a different view, but not
upon the law. He held that it had not been shown that the accused was a partner. This
case was considered by a F. B. of this Ct. in the case of The Queen v. Okhoy Coomar,
13 Beng. L. R. 307 : (21 W. R. (Cr.) 59 F. B.). In that case a Mag. relying upon the
decision in the petn. of Lall Chand Roy, 9 W. R. (Cr.) 37 to which I have just made
reference discharged the accused on the ground that they could not be prosecuted for
an offence under Section 405, Penal Code. A revn. petn. from the order of the Mag.
came before a Bench of this Ct. which thought that the decision in Lall Chand Roy's
case, (9 W. R. (Cr.) 37) needed consideration & referred the following question to a F.
B. :

"Whether, if a partner. dishonestly misappropriates or converts to his own use, or

dishonestly uses or disposes of any of the partnership property which he is entrusted
with, or has dominion over, he is guilty of an offence punishable under the Penal
Code?"

21. A F. B. consisting of five Judges came to the conclusion that the case of Lall
Chand Roy, (9 W. R. (Cr.) 37) could not be supported & directed that the order of
discharge of the learned Mag. should be set aside & that he should enquire into the
merits & decide whether or not an offence had been committed. The question
submitted to the F. B. was answered in the affirmative. But it is by no means clear in
what circumstances the F. B. were of opinion that an offence would be established.
They observed at p. 311:

"If it be made out by the evidence, that one partner. was entrusted by his co-partners.
with property or with a dominion over it, & that he had dishonestly misappropriated
it, or dishonestly used it in violation of the mode in which his trust was to be
discharged, or of the agreement between the parties as to the use he was to make of
the property, he ought to be tried for that offence."

22. Of course if it could be made out that one partner. had been entrusted with
property or with dominion over it no difficulty would arise. But the question WE have
to consider is whether or not a partner. who receives partnership property without any
special agreement can be said to have been entrusted with that property or with

65
dominion over it. A partner. who receives partnership property hag dominion over
that property quite apart from any arrangement with his other partners. The fact that
he is a partner, gives him dominion over the property & if the English view be right
he does not hold that property in a fiduciary capacity. It may be that by special
arrangement between the parties One partner. could be regarded as being entrusted
with property. But apart from such special arrangement, it cannot be said that a
partner. who receives partnership property on behalf of his partners. has been given
dominion over that property by his co-partners. or has been given dominion over the
share of his co-partners. by the latter. This F. B. case is certainly authority for the
proposition that in some circumstances a partner. can be charged under Section
406, Penal Code. But it is not very helpful, with great respect, to a Ct. which is called
upon to decide whether a partner. receiving a partnership asset in his capacity as a
partner. is guilty of fraudulent breach of trust if he did not account for it.

23. The F. B. never seems to have considered that there is really no partner's share in
the property until an account & it may well be that a partner. who retains an asset, is
entitled not only to his share according to the partnership agreement in that asset but
on taking an account it may be found that he is entitled to the whole of the asset &
considerably more. In such a case how can it be said that he has been guilty of a
breach of trust & has acted dishonestly towards his co-partners., if an account would
show that he was entitled to everything which he had retained ?

24. This F. B. decision has been considered in a number of Bench decisions. In the
case of Debi Prasad v. Nagar Mull, 35 Cal. 1108 : (9 Cr. L. J. 74) it was held that a
partner. was entitled to be called upon for an account of the expenditure of the money
which he had received & it was open to him to spend the money received by him & to
account for it in dealing with the partnership. Where it was not satisfactorily made out
that this was not done, & could not be made out in the absence of a proper demand for
accounts, it was held that there was no dishonest conversion which would justify his
conviction under Section 406, Penal Code. At p. 1110 the learned Judges observed :

"But considering that there was a partnership existing at this time, the accused was
plainly entitled to be called upon for an account of the expenditure of the money,
which he had received, for, as the contract was one of partnership & not of bailment,

66
it was open to the accused to spend the money he had received & to account for it in
dealing with the partnership."

This view clearly supports the petitioner. in the present case. If a partner. could be
said to have been entrusted with the money it would not have been open to him to
spend the money which he had received & to account for it in the accounts of the
partnership. A person who receives property in a fiduciary capacity must deal with the
property according to the terms of the arrangement or trust. He cannot dispose of the
property as he likes & claim to account for it at some later stage.

25. The matter again came before the Ct. in the case of Bhupendranath v. Giridharilal,
in which it was held that when a partner. was proved in fact to have been entrusted
with the partnership property or with dominion over it, & had dishonestly
misappropriated it or converted it to his own use, he could be convicted of an offence
under Section 405 or rather 406, Penal Code. But the Bench added that it was
difficult, however, to conceive how such a situation could arise. It was further held
that each partner. was co-owner of the whole of the common stock, though he
received or paid a share only in profits & losses arising therefrom, & it was difficult
to conceive how he could be entrusted with, or with dominion over his own property
or how he could dishonestly misappropriate it or convert it to his own use.

26. This case followed the F. B. in that it held that there were circumstances in which
a partner. might be guilty of an offence under Section 406, Penal Code. But the view
of the Bench is clear that in ordinary cases where a partner. receives money or
property of a partnership or holds property or money of a partnership, he does not
receive or hold that property in a fiduciary capacity & if he spends it he cannot be
guilty of the crime of fraudulent breach of trust. The remedy is an account & in that
account the partner. who has retained the money or property must account for it in
ascertaining what his share of the partnership assets will be.

27. In a later case, Alia Rakha v. Liakat Hossain, a Bench of this Ct. took a somewhat
different view from that taken in Bhupendranath Singha's case . The Bench held that it
was not the law that in no case can charges under Sections 403 to 409, Penal Code, be
framed against a person who is a partner. & is accused of offences under those
sections in respect of partnership property. The learned Judges observed :

67
"The words of Section 405 are large enough to include the case of a partner. if it be
proved that he was in fact entrusted with the partnership property or with dominion
over it & has dishonestly misappropriated it or converted it to his own use."

The learned Judges, however, do not state whether in their view a partner. who
receives partnership property or money on behalf of the partnership can be said to
have been entrusted with it & therefore guilty of fraudulent breach of trust if he does
not dispose of it in accordance with the trust or arrangement. It seems that in the case
of Alia Rakha, v. Liakat Hossain, the Bench were not inclined to follow the view
expressed in Bhupendranath Singha's case .

28. In the case of Man Mohan Das v. Mohendra Bhowal, 52 C. W. N. 441 : (A. I. R.
(35) 1948 Cal. 292 : 49 Cr. L. J. 543), a Bench of this Ct. held that a partner. who
received money on behalf of the partnership did not receive it in a fiduciary capacity.
Consequently, when one partner. was alleged to have withheld the share of the profits
of the partnership business said to be due to another partner. he could not be
prosecuted for an offence under Section 406, Penal Code.

29. This case was somewhat different from the others The partner. prosecuted was
alleged to have withheld the complainant's share of the partnership profits. But it is
clear that partnership profits are not ascertainable until an account has been taken & it
cannot be said until such an account that any partner. has any share in such profits. I
think this later case is clearly right because it could not possibly be said that a partner.
or partners had been entrusted with another partner's share of the partnership profits
before it could be said whether any profits existed or not & such could not be said
until an account had been taken. The last case is the case of Rahaman v. R. D.
Khambatta, 50 Cr. L. J. 154 : (A. I. R. (36) 1949 Cal. 89) in which the view was taken
that in ordinary circumstances a partner. could not be prosecuted under Section
406, Penal Code, for fraudulent breach of trust in not accounting for partnership
property.

30. Bombay has taken a view that a partner. may be prosecuted under Section
408, Penal Code, for failure to account for partnership moneys or assets. In Emperor
v. Jagannath Ragkunathdas, 33 Bom. L. R. 1518 : (A. I. R. (19) 1982 Bom 57 : 33 Cr.
L. J. 317), a Bench held that the words of Section 405, Penal Code, were wide enough

68
to cover the case of a partner. Where one partner. was given authority by the other
partners. to collect moneys or property of the firm, he was entrusted with dominion
over that property; and if he dishonestly misappropriated it he came within the
section. The Bench, however, added that the Ct. should be very careful in dealing with
charges against partners. of criminal breach of trust. It was impossible to say in many
cases what the share of the accused might be, whether the accused was indebted to the
firm or whether the firm was indebted to him. If the firm was indebted to him there
might be no dishonest intent in his withdrawing money from the firm. If there was any
doubt upon the matter, the accused must always have the benefit of the doubt.

31. The Bench of the Bombay H. C. realised that whether or not there was a dishonest
intent would depend upon a partnership account & the criminal Cts. which appear to
be singularly inappropriate for taking partnership accounts were warned to be very
careful. The Bombay case, however, does not consider the English authorities & does
not consider whether or not a partner. who receives money from a creditor of the firm
holds that money in a fiduciary capacity. It seems to have been assumed by the
learned Judges that the partner. did, whereas as I have pointed out the English view
was that the partner. did not hold the money in a fiduciary capacity & it appears to me
that the English view is correct & has been followed by a number of Benches of this
Ct.

32. A view similar to the Bombay view has been taken by the Madras H. C. in the
case of Satyanarayanamurthi v. Kotha Manikyala Rao, & by the Patna H. C. in the
case of Bhudhar Mal v. Ramchander, 55 I.C. 674 : (A.I.R. (7) 1920 Pat. 112 : 21 Cr.
L. J. 338). These cases do not advance the matter any further because the Benches
merely purported to follow the F. B. case of this Ct. in Queen v. Okhoy Coomar, (13
Beng. L. R. 307 : 21 W. R. (Cr.) 59 F. B.)

33. Whether or not a partner. can be said to have been entrusted with property must
depend upon whether there is any special agreement between the parties. If there is no
special agreement he does not receive property in a fiduciary capacity. It might be that
if there was a special arrangement between the partners. then it could be said that a
partner. was entrusted with property or with dominion over it. For example, if by the
terms of the partnership agreement one partner. was given the sole right to possession
of the partnership assets or to receive moneys on behalf of the partnership then such a

69
partner. might, though it is unnecessary to hold it, be said to have entrusted another
partner. with money if he gave such other partner. money for a specific purpose. It is
unnecessary in this case to decide in what circumstances there can be entrustment. But
all we need say is that by special agreement between the parties entrustment might be
possible, & if entrustment was possible then a breach of conditions or arrangement
might render the person accused guilty of fraudulent breach of trust. However I am
satisfied that in oridnary cases where a partner. receives moneys or an asset belonging
to a partnership, or holds moneys or assets of a partnership, he does not hold that
money in a fiduciary capacity. He cannot even be sued for a share in the moneys or
assets by his co-partner.

34. The only remedy of a co-partner. is an account & until such an account is taken it
cannot be said whether the co-partner. has any interest at all in the asset or money. As
pointed out in the case of Gopala Chetty v. Vijayaraghavachariar, (1922-1 A. C. 488:
A.I.R. (9) 1922 P. C. 115), decided by their Lordships of the P. C., even after
dissolution a co-partner. has no right to sue for his share of an asset. It appears to me
that if a co-partner. has no right to sue to recover his share it cannot possibly be said
that his co-partner. is holding that share in trust for him. If the partner. holds
partnership property in a fiduciary capacity he would be holding it in trust for his co-
partners. & his co-partners. could sue. But it has been laid down beyond all question
that the co-partners. cannot sue & that their only remedy is an account & to recover
only what is ultimately found due on taking the account. It appears to me that in those
circumstances it cannot be said that a partner. who receives or holds property of a
partnership is entrusted with the property or dominion over it, & that being so it
appears to me that the answer to question 1 must be in the negative.

35. The answer to question 2 must be that these cases cannot be regarded as correctly
decided if they lay down any general rules applicable to prosecutions of partners. for
offences under Section 406, Penal Code, in respect of property received or held by
such partners. on behalf of the partnership in the ordinary course of partnership
dealings. However, the cases may be regarded as rightly decided, if they are confined
to cases where under special agreements made between the parties entrustment of the
property or dominion over it could be given to any particular partner.

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36. Under the rules of this Ct. the F. B. must not only answer the questions, but must
decide the petn. It appears to me that the petn. must be allowed & the proceedings
before the learned Mag. quashed because no entrustment could be established in the
circumstances of this particular case.

37. In the result the petition. is allowed & the proceedings now pending in the Ct. of
the learned Mag. at Howrah are quashed. The rule is accordingly made absolute.

Das, J.

38. I agree with my Lord the Chief Justice.Banerjee, J.

39. I agree. (See separate judgment.) Das Gupta, J.

40. I entirely agree with my Lord the Chief Justice.

P. B. Mukharji, J.

41. I agree with the conclusions & the reasonings given in the judgments of my Lord
the Chief Justice & of my Lord Banerjee J. I would only wish to add a few more
reasons to support the same conclusion.

42. The point for decision before the Ct. is can a partner. be prosecuted under Section
406, Penal Code, for criminal breach of trust in respect of partnership assets. Sir
Richard Couch C. J. delivering judgment for a F. B. of the Calcutta H. C. in the matter
of Nrigendra Lall, 21 W. R. (Cr.) 59: (13 Beng. L. R. 307 F. B.) observed :

"We think the words in Section 405, Penal Code are large enough to include the case
of a partner. if it be proved that he was in fact entrusted with the partnership property
or with a dominion over it & has dishonestly misappropriated it or converted it to his
own use. There is no reason that the case of a partner. should be excepted from the
operation of this section. Indeed there is every reason that it should be included in it.
It is a question of fact whether there has been an entrusting of the property or giving a
dominion over it sufficient to come within what is required."

43. This decision was rendered in 1874 & has caused considerable anxiety for more
than 70 years. On two main grounds the soundness of this decision has been

71
questioned more than once. First the decision is said to be verbal & academic & its
practical import is difficult to find. This decision gives no indication to show how it &
under what circumstances a partner. can at all be said to be entrusted with partnership
property or with dominion over it or to have misappropriated & it is difficult, if not
impossible, to conceive how such a situation can arise. This criticism is put on the
ground of the law of partnership. In Piddocke v. Burt, (1894) 1 Ch. 343: (63 L. J. Ch.
246), it is held that a partner. who receives money belonging to the partnership on
account of himself & his co-partner. does not do so in a fiduciary capacity. At
Common Law in England no criminal prosecution can be maintained by one partner.
against another for stealing or embezzling by false pretexts or misappropriating
property of the firm. Partners. are regarded in law as joint owners or co-owners of the
partnership property. Secondly, Sections 403 to 409, Penal Code occur under
"offences against property'' in chap. 17 of that Code, under the sub-heading "Criminal
misappropriation of property." This group of sections deals with many classes of
persons who are specially & specifically mentioned but they make no reference to a
partner. Section 407 Penal Code, deals with criminal breach of trust by carrier
wharfinger or warehouse keeper. Section 408, Penal Code, refers to criminal breach
of trust by clerk or servant. Section 409, Penal Code, refers to criminal breach of trust
by a public servant or by Banker, merchant or agent. The case of a partner. is not
mentioned in any of these sections or even in the numerous statutory illustrations
given thereunder. The statutory illustrations indicate persons entrusted absolutely with
the property of another & not property which belongs either partly or wholly to the
accused. If illustrations are any indication then these sections of the Penal Code are
not intended to be applied to partners. Illustration (c) of Section 403, Penal Code,
which refers to joint owners of a horse & says that one of the joint owners can take
the horse out of the possession of the other is of no assistance in this case because
unlike the illustration the partnership account is a general account & is not confined to
a specified item of property as the horse in the illustration. Then again in this
connection a reference to Section 424, Penal Code, will show that there can be
dishonest or fraudulent removal or concealment of one's own property because of the
specific language used in that section namely "property of himself or any other
person."

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44. Some of these criticisms will be found in the judgment of Lort-Williams J.
in Bhupendra Nath v. Giridharilal, . Harries C. J. in Monmokan Das v. Mohendra
Bhawal, 52 C.W.N. 441 : (A. I. R. (35) 1948 Cal 292 : 49 Cr. L. J. 543) refers to this
decision of Lort-William J. while holding that a partner, who receives the money on
behalf of the partnership does not receive it in a fiduciary capacity. The Bombay H. C.
adopted the view of the Calcutta F. B. & Beaumont C. J. in Emperor v. Jagannath
Raghunathdas, 33 Bom. L. R. 1518 : (A. I. R. (19) 1932 Bom. 57 : 33 Cr. L. J. 317)
overruled the argument advanced on the basis of statutory illustrations of the Penal
Code 4 come to the conclusion that the words of the section are wide enough to cover
the case of a partner. at pp. 1520 & 1521.

45. An analysis & survey of the various sections of the Partnership Act are necessary
to discover the true nature, character & incident of partnership property. Section
19, Partnership Act discloses the implied authority of a partner. to deal with
partnership property to bind the firm. Section 24 of the same Act contemplates notice
to the partner. as notice to the firm except in the case of fraud on the firm committed
by or with the consent of that partner. But the sections relating to the property of the
firm lay down the rules what such partnership property is & how is that to be
applied. Section 15, Partnership Act, provides that subject to contract between the
partners., the property of the firm shall be held & used by the partners. exclusively for
the purposes of the business. Section 9, Partnership Act, enjoins each partner. to be
just & faithful to each other. Section 10, Partnership Act, requires that every partner.
shall indemnify the firm for any loss caused to the firm by his fraud in the conduct of
the business while Section 13 of the same Act requires a partner. to indemnify the
firm for any loss caused to it by his wilful neglect in the conduct of the business.

46. It does not appear to my mind that sections of the Partnership Act, relating to
indemnification for the loss either for the fraud or wilful neglect of the partner. nor
even the section where one partner. is required to be just & faithful to the other can
lead to the conclusion that one partner. can commit the offence for criminal breach of
trust as against the other partner. in respect of partnership property. The question here
is of much broader application & of a more fundamental nature. Its fundamental
nature is this that the very conception of partnership precludes possibility of
entrustment or dominion of the partnership property by one partner. as against the

73
other & therefore, precludes any possible operation of the crime under Section
406, Penal Code, of criminal breach of trust by one partner. against the other in
respect of the partnership property.

47. In England the same difficulty arose & the disability was partially removed first
by 31 & 32 vict. chap. 116 & now replaced by Section 40 (4), Larceny Act, 1916 but
no similar legislation has been enacted in India. Section 40 (4), Larceny Act of 1916
(6 & 7 Geo. V chap. 50) provides as follows:

"If any person, who is a member of any co-partnership or is one of two or more
beneficial owners of any property, steals or embezzles any such property of or
belonging to such co-partnership or to such beneficial owners he shall be liable to be
dealt with, tried, & punished as if he had not been or was not a member of such co-
partnership or one of such beneficial owners."

Further inroads on the Common Law in England were made by such Statutes
as Section 24, Forgery Act 1861 (24 & 25 vict. Chap. 98) under which Act it was
forgery to endorse a bill by procuration under a false & fraudulent assumption of
authority so to endorse it. Under that section now repealed it was held in R. v. Holden,
(1912) 1 K. B. 483: (81 L. J. K. B. 327) that a partner. who with intent to defraud &
without lawful excuse or authority accepted a bill in the partnership name had
accepted it in the name of another person within the meaning of that Statute & the
distinction was sometimes a very fine one as will be seen from the decision of the
English Ct. of Appeal in Morison v. London County & Westminster Bank Ltd.,
(1914) 3 K. B. 356 at p. 381: (83 L. J. K. B. 1202). On behalf of the resp. reliance was
placed on the decision of R. v. Warburton, (1870) L. R. 1 C. C. 274: (40 L. J. M. C.
22). As will be apparent from the judgment of Cockburn C. J. in that case the ratio of
the decision is that it is a criminal offence to deprive a partner. of his interest in some
of the partnership property by false entries & false documents. That is quite
understandable because by falsifying entries a partner's. interest in the partnership
property is affected forthwith irrespective of dissolution or general accounts & this
case, therefore, is no authority for the proposition that a partner. can be convicted of
criminal breach of trust by another partner. in respect of partnership property. Besides
it was a case of conspiracy to cheat & defraud & it was immaterial whether the act
agreed to be done was itself not criminal, so long as it was illegal. It is so also for

74
criminal conspiracy under Section 120A, Penal Code. Incidentally it may be pointed
out here that although at Common Law in England it was not a criminal offence for
one co-owner of goods fraudulently to deprive the other co-owners of them, such co-
owner being lawfully in possession (1 Hale P. C. 513) it was nonetheless possible that
if he took them from a person who was a bailee for all the co-owners he could be
convicted of larceny even though the bailee was himself one of the co-owners; R. v.
Bramely, (1822) Russ. & By. 478 : (168 E. R. 907) & R. v. Webster, (1861) Le. & ca.
77: (169 E. R. 1311) & that apparently is still the law in any case which cannot be
brought within the Larceny Act of 1916. But these in my opinion cannot alter the
position of the partners' interest in respect of partnership property so as to make one
partner. liable for the offence of criminal breach of trust in respect of partnership
property at the instance of another partner.

48. The question before the Cts. in India can be dealt with in my view on the basis of
the language used in Section 405, Penal Code, dealing with the offence of the criminal
breach of trust. In this respect the matter if largely, if not wholly, one of construction.
The generality & the amplitude of the expression "whoever" in Section 405, Penal
Code, prima facie would include a partner. within the operation of this section. If
there is any exclusion of the case of a partner. from the operation of this section then
such exclusion has to follow from other expressions used in that particular section.
Such other expressions which are relevant in this context & from which such
exclusion can be deduced are:

(i) "In any manner entrusted with property."

(ii) "Any dominion over property."

(iii) "To his own use."

(iv) "In violation of any direction of law prescribing the mode in which such trust is to
be discharged."

(v) "Or of any legal contract expressed or implied."

49. The first question, therefore, for consideration is can a partner. be said to be in
any. manner entrusted with partnership property as against the other partner. or

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partners. In my view normally not. Section 15, Partnership Act, proviles subject to
any contract that the property of the firm shall be held & used by the partners.
exclusively for the purposes of the business. That in my view means all the partners.
as between themselves jointly hold & use the partnership property for the purposes of
the business & no one partner. can be said to be entrusted with the partnership
property as against the other partner. or partners. under the Ordinary incidents of
partnership law under the Partnership Act.

49a. The second question is can a partner. be said to have dominion over the
partnership property as against the other partner. or partners ? The same Section
15, Partnership Act, in my judgment precludes such idea. In the case of a partnership
it is joint dominion by all the partners. over the partnership property.

50. These are the two primary conditions one of which must be satisfied before other
elements of the offence under Section 405, Penal Code, need be considered. As in my
view these two primary conditions cannot be satisfied in the case of a partner. under
the ordinary incidents of partnership law under the Partnership Act, no partner. can
prosecute his co-partner. for criminal breach of trust in respect of partnership
property.

51. The other expressions mentioned in what I have itemised above as (iii), (iv) & (v)
may be applicable in the case of a partner. against the co-partners. in respect of
partnership property under the Partnership Act but they are of no avail when any of
the first two basic conditions of the offence cannot under such law be satisfied.

52. It is quite true that Section 15, Partnership Act, as well as many other sections
thereof are subject to any special contract between the patners. Great liberty is given
to patners. to form their own contract of partnership & the terms of contract vary
between one partnership & another. If therefore there is any special contract of
partnership by the very terms of which either an entrustment is made of any specific
property to another partner. or any exclusive dominion given in respect of the same to
one particular partner. as against the others then such a case may in appropriate
circumstances come within the operation of Section 405, Penal Code; except such
kind of special contract therefore there cannot be criminal breach of trust by one
partner. as against the other in respect of partnership property.

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53. What is often forgotten in this context is that the Indian Partnership Act is not a
complete code on the law of partnership. It is a Statute to define & amend the law
relating to partnership. The Act does not profess to consolidate the entire law on the
subject. Until dissolution of partnership & accounts no specific item of property
belongs to any particular partner. as against the other. That is the peculiar character &
incident & nature of partnership property. Section 48 lays down that in settling
account of a firm after dissolution losses shall first be paid out of profits, next out of
capital & lastly by the partners. individually in proportions in which they are entitled
to share profits. Then it is provided there that the assets of the firm should be applied
first in paying debts of the firm to third parties, then in paying rateably what is due to
a partner. from the firm for advance as distinguished from capital, thirdly in paying to
each partner. rateably what is due to on account of capital & lastly the "residue' if any
shall be divided among the partners. in the proportions in which they are entitled to
share profits. The basic idea is ultimate participation in the partnership assets out of
the ''residue" that is left & such "residue" cannot be determined until after dissolution
& accounts & until after losses & assets of the firm have been attended to in the
manner laid down in the section. The same idea operates also in Section
52, Partnership Act, where a contract creating partnership is rescinded on the ground
of fraud or misrepresentation of any of the parties thereto. There again the party
entitled to rescind has the right to a lien on or a right of retention if the "surplus" of
the assets of the firm remaining after debts of the firm have been paid, for any sum
paid by him for the purchase of a share in the firm & for any capital contributed by
him. He is also entitled to rank as a creditor of the firm in respect of any payment
made by him towards the debt of the firm & to be indemnified by the partner. or
partners. guilty of fraud or misrepresentation against all debts of the firm. From these
various provisions, it is, therefore, clear that the property of partners. in the
partnership assets is a residuary or surplus property which remains after satisfaction of
other claims on the firm. It is, therefore, not a specific & ascertainable property, until
then.

54. The reason, therefore, of holding that a partner. cannot be prosecuted by another
partner. for criminal breach of trust in respect of partnership property under Section
406, Penal Code, is two-fold. The nature, character & incident of partnership property
are such that during the subsistence of the partnership there cannot be, except by

77
special agreement with which we are not concerned here, any entrustment or
dominion & secondly partnership property is net a specific & ascertainable property
& is of so equivocal & problematic a nature until dissolution & accounts, that it is not
susceptible to be used in a manner which can bring into operation Section 405, Penal
Code. It is only when such ordinary character & nature of the partnership property are
varied by special contract of partnership so as to create entrustment of any specific
property in favour of one partner. as against the others or so as to give exclusive
dominion of such property to one partner. as against the other that there can be any
scope of application of Section 405, Penal Code.

Banerjee J.

55. I agree. To constitute the offence of criminal breach of trust there must be
entrustment of property in respect of which the breach of trust is charged. It closely
resembles the offence of embezzlement under the English law. The section requires
entrusting any person with property or with any dominion over property. It further
requires dishonest misappropriation or conversion of that property by the person
charged, to his own use, or dishonest disposal of it. The offence consists of any one of
four positive acts namely, misappropriation, conversion, user, or disposal of property.

56. Dishonest intention is the gist of the offence. It follows, therefore, that if there is
no 'property' which is the subject-matter of entrustment, there cannot be any criminal
breach of trust. Likewise if there is no dishonest intention, there is no offence
committed.

57. In the judgment of the learned Chief Justice, the nature of a partner's property in
the partnership assets has been discussed. That is the English law. That is also the
Indian law. The substance of the English law has been enacted in Section
46, Partnership Act. Section 46 is as follows :

"On the dissolution of a firm every partner. or his representative is entitled, as against
all the other partners. or their representatives, to have the property of the firm applied
in payment of the debts & liabilities of the firm, & to have the surplus distributed
among the partners. or their representatives according to their rights."

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This section is in substance Section 39 of the English Act, with verbal condensation.
This section affirms the right of partners or their representatives to a share of the net
assets of the firm after the firm is dissolved and the account is taken.

58. The right of a partner under this section is known as his general lien on the surplus
of the assets of the firm and is commonly called partners' lien In re Bourne, (1906) 2
Ch. 427 : (75 L. J. Ch 779).

59. The principle of this section was stated in Darby v. Darby, (1856) 3 Drew. 495 at
p. 503 : (25 L. J. Ch. 371) and by Lord Eldon in Crawshay v. Collins, (1808) 15 Ves.
218 : (10 R. R. 61) and by Sir William Grant in Featherstonhaugh v. Fenwick, (1810)
17 Ves. 298 : (11 R. R. 77). On the nature of the right given to a partner by this
section, Pollock observes as follows (PP. 99, 100) :

"The right of each partner to control within certain limits the disposition of the
partnership property is a rather peculiar one. It exists during the partnership, and when
accounts are taken and the partners' shares ascertained from time to time, its existence
is assumed, but it comes into full play only in the event of a dissolution. It belongs to
a class of rights known as equitable liens, which have nothing to do with possession,
and must therefore be carefully distinguished from the possessory liens which are
familiar in several heads of the Common law. The possessory lien of an unpaid
vendor, factor, or the like, is a mere right to hold the goods of another man until he
makes a certain payment; it does not, as a role, carry with it the right of dealing with
the goods in any way. Equitable lien, on the other hand, is nothing else than the right
to have a specific portion of property dealt with in a particular way for the satisfaction
of specific claims."

62. It is quite clear, therefore, that unless there is an agreement between the partners
that a particular property would be the separate property of a partner, there cannot be
an entrustment of it to the other partner or partners. In the absence of such an
agreement, each partner is interested in the whole of the partnership assets and there
cannot be an entrustment of 'a partner's property' as such by one partner to another,
because there is no 'property' which can be entrusted.

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63. In the case before us there is no evidence that there was an agreement by which
the partnership assets were converted into separate property of the partners. Therefore
there cannot be a breach of trust, because nothing was or could be entrusted.

MODULE 5
GENERAL EXCEPTIONS
Excusable and Justifiable Exceptions
“Excuses” and “justifications”, though both of them ultimately exonerate an
individual from liability, are conceptually distinct.

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First, in the excusable defences, the act is excused for want of the necessity of
requirements of guilty mind, while in the latter the act done is justified on account of
some other meritorious considerations neutralising the corresponding liability
otherwise incurred.
The first category of exceptions, thus, treats an actus reus as non-criminal because of
the absence of the requisite mens rea, while the second one considers an actus reus,
though committed with the required mens rea, meritorious. Secondly, in determining
whether conduct is justified, the focus is on the act, not the actor.
“Excuses” perceive that criminal liability is inappropriate because of some (legally
recognised) characteristics of the actor. Their focus is on the actor. They, thus, do not
destroy the blame or the undesirability of the act but they shift it from the actor to the
excusing conditions. The distinction between “excuses” and “justifications” defines
the parameters of each of the general exceptions.
INFANCY
Section 82 totally absolves a child below seven years of age from criminal liability.
Section 82 presumes that a child below seven years is doli incapax, i.e., he is
incapable of committing a crime and cannot be guilty of any offence. It presumes that
he cannot distinguish “right” from “wrong”.
ULLA MAHAPATRA Versus THE KING
LNIND 1950 ORI 4

(1.) The appellant, Ulla Mahapatra, is a boy of about twelve years of age. He has been
convicted of an offence under Section 302, Penal Code for causing the death of a
Dandasi boy named Ranka Naik and has been sentenced to transportation for life.

(2.) The case for the prosecution is that on the afternoon of 20th April 1949, the
appellant Ulla was getting palm fruits plucked from a tree standing on his land.
Another boy named Khallia had been engaged to cut the fruits. The appellant was
gathering the fruits from the ground and carrying them to his cow-shed in a basket
and he was being assisted in this work by two other boys, Bhagawan and Prahlad, It is
said that Khallia got down from the tree after cutting down all the fruits from it and
was eating a fruit that had fallen on the ground. At that time the deceased boy, Ranka,
arrived at the spot, on his way home after a bath, accompanied by another boy friend
named Nakula of the village. Ranka picked up a fruit from the ground whereupon the

81
appellant protested and demanded its price. Ranka thereafter threw the fruit and is
said to have remarked that he would cut the appellant to pieces if ever he went to the
Tope for plucking palm-fruits. At this the appellant got excited and told the deceased
that he would not allow aim to do so, as he himself would cut Ranka to bits then and
there. So saying, the appellant, true to his word, struck Ranka with a kathi on the left
side of his chest, just below the collar bone. The deceased fell down and died on the
spot. Khallia immediately went to the village and gave out what bad happened and the
Karji took down a statement from him.

(8.) Mr. P. V. B. Rao, learned counsel for the appellant, strenuonsly urged that even if
the prosecution version were to be accepted, the offence would be one of culpable
homicide not amounting to murder as the appellant did not know the nature and the
consequences of what he was doing, owing to his tender age and immaturity of
understanding. Reliance was placed on the rate of law enunciated in Section 83, Penal
Code which lays down that nothing is an offence which is done by a child above
seven years of age and under twelve who has not attained sufficient maturity of
understanding to judge of the nature and consequences of his conduct on that
occasion, We are satisfied from the medical evidence that the appellant is over eleven
and below twelve years of age. But that is all that can be said in favour of the
appellant. The manner in which he has answered questions put to him by the Court in
what appears to be a fairly lengthy examination leaves the impression on my mind
that the appellant is an extraordinarily precocious child. He gave out his age as 14
years and pleaded that as the village was divided into two factions he had been falsely
implicated in this case. He gives very minute details of what he did after his return
from his padar lands, prior to the occurrence, how he went to Sanya Farida and later
to Khallia, and how he bargained for wages. He also tries to explain away every little
detail of the evidence against him and says that his kathi had been taken away by his
father and that the basket was in the cowshed and that he had asked Bhagawan to
fetch it for him. He denies that Banka was returning from his bath and says that Banka
accompanied him (the appellant) while he was returning from Khallia's house and
that, at Khallia's invitation, Banka came to the spot to help pick up the fruits. The
appellant, however, admits that after the occurrence he went away to his padar and
returned home late in the night. The answers that he gave to the questions put to him
by the learned Sessions Judge appear to disclose an acute and intelligent mind and he

82
can by no means be regarded as suffering from any immaturity of understanding. The
words alleged to have been uttered by him to the effect: & #39;I shall cut you to bits
now' show that he realized the nature and consequences of what he was going to do.
What , Section 83, Penal Code contemplates is that the child should know the natural
and physical consequences of his conduct. When the appellant picked up his knife and
advanced towards the deceased with a treatening gesture, saying that he would cut
him to bite, and did actually cut him, his entire action can only lead to one inference,
namely, that he did what he intended to do and that he knew all the time that a blow
inflicted with a kathi would effectuate his intention.

INSANITY

In order to seek protection of section 84, IPC, it is necessary for an accused to prove
that he, at the time of commission of the act was of unsound mind and he because of
the “unsoundness of mind”, was incapable of knowing the “nature” of the act; or that
the act was “contrary to law”; or that the act was “wrong”.

M’Naghten’s Law

R v M’Naghten (1843) 8 E.R. 718; (1843) 10 Cl. & F. 200

Facts

In January 1843, at the parish of Saint Martin, Middlesex, Daniel M’Naghten took a
pistol and shot Edward Drummond, who he believed to the British Prime Minister
Robert Pell, wounding him fatally. Drummond died five days later and M’Naghten
was charged with his murder. He pleaded not guilty by reason of insanity.

At trial, evidence was given of the shooting of Drummond and witnesses were called
on the behalf of the defendant, M’Naghten, to attest to the fact he was not in a sound
state of mind at the time of committing the act. Some of the witnesses who gave this
evidence, had previously examined M’Naghten, whilst others had not seen him prior
to the trial and, and they formed their opinion on hearing the evidence given by other
witnesses.

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The medical evidence brought forward stated that persons of otherwise sound mind,
might be affected by morbid delusions and that M’Naghten was so affected. A person
labouring under such delusion, might usually possess a moral perception of right and
wrong, but in relation to acts connected to their delusion may be carried beyond
power of their own control leaving them with no such perception.

Accordingly M’Naghten was not capable of exercising control over his acts whilst
under his delusion. Due to the nature of M’Naghten’s condition these delusions went
on gradually until they reached a climax, ending with Drummond being shot.
Evidence brought before the Court about the condition from which M’Naghten
suffered stated that a man may go on for years quietly whilst under the delusion’s
influence, but had the potential break out into extravagant and violent paroxysms.

In relation to the charge against M’Naghten, Lord Chief Justice Tindal stated that “the
question to be determined is, whether at the time the act in question was committed,
the prisoner had or had not the use of his understanding, so as to know that he was
doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was
not sensible, at the time he committed it, that he was violating the laws both of God
and man, then he would be entitled to a verdict in his favour: but if, on the contrary,
they were of opinion that when he committed the act he was in a sound state of mind,
then their verdict must be against him.”

M’Naghten was found not guilty.

Following this a panel of Judges attended the House of Lords and had a series of
hypothetical questions on the topic of insanity put before them.

Issues

The hypothetical questions about insanity the judges had to address were as follows:

(i) What is the law respecting alleged crimes committed by persons

afflicted with insane delusion, in respect of one or more particular
subjects or persons: as, for instance, where at the time of the
commission of the alleged crime, the accused knew he was acting
contrary to law, but did the act complained of with a view, under

84
 the influence of insane delusion, of redressing or revenging some
supposed grievance or injury, or of producing some supposed
public benefit?
(ii) What are the proper questions to be submitted to the jury, when a
person alleged to be afflicted with insane delusion respecting one
or more particular subjects or persons, is charged with the
commission of a crime (murder, for example), and insanity is set
up as a defence?
(iii)In what terms ought the question to be left to the jury, as to the
prisoner’s state of mind at the time when the act was committed?
(iv) If a person under an insane delusion as to existing facts, commits an
offence in consequence thereof, is he thereby excused?
(v) Can a medical man conversant with the disease of insanity, who never
saw the prisoner previously to the trial, but who was present during
the whole trial and the examination of all the witnesses, be asked
his opinion as to the state of the prisoner’s mind at the time of the
commission of the alleged crime, or his opinion whether the
prisoner was conscious at the time of doing the act, that he was
acting contrary to law, or whether he was labouring under any and
what delusion at the time?

Decision/Outcome

In response to these questions the Judges formulated the M’Naghten Rules (1843) 4
St.Tr.(N.S.) 847. These provide the legal definition of insanity. They provide that a
defendant wishing to rely on the defence of insanity must show that:

 They laboured under a defect of reason

 Caused by a disease of the mind; so that either
 He did not know the nature and quality of his acts, or that he did not know
what he was doing was wrong.

Dahyabhai Chhanganbhai Thakkar Versus The State of Gujarat LNIND 1964

SC 88

85
The appellant was the husband of the deceased Kalavati. She was married to the
appellant in the year 1958. On the night of 9th April, 1959, as usual, the appellant and
his wife slept in their bed-room and the doors leading to that room were bolted from
inside. At about 3 or 3-30 A.M. on the next day Kalavati cried that she was being
killed. The neighbours collected in front of the said room and called upon the accused
to open the door. When the door was opened they found Kalavati dead with a number
of wounds on her body. The accused was sent up for trial to the Sessions on the
charge of murder. Before the Additional Sessions Judge, Kaira, a defence was set up
that the accused was insane when the incident was alleged to have taken place and
was not capable of understanding the nature of his act.

When a plea of legal insanity is set up, the Court has to consider whether at the time
of commission of the offence the accused, by reason of unsoundness of mind, was
incapable of knowing the nature of the act or that he was doing what was either wrong
or contrary to law. The crucial point of time for ascertaining the state of mind of the
accused is the time when the offence was committed. Whether the accused was in
such a state of mind as to be entitled to the benefit of section 84 of the Indian Penal
Code can only be established from the circumstances which preceded, attended and
followed the crime.

The next question is, what was the previous history of the mental condition of the
accused Here again, the prosecution witnesses, P.Ws. 2 to 7, deposed for the first time
in the Sessions Court that 4 or 5 years before the incident the accused was getting fits
of insanity. But all these witnesses stated before the police that the accused had
committed the murder of his wife, indicating thereby that he was sane at that time.
Further, their evidence is inconsistent with the facts established in the case. During
this period, it was admitted by P.W. 7, the accused was not treated by any doctor.
Prior to the incident he was serving in Ahmedabad in Monogram Mills for about a
year and a half. Though the father of the deceased was staying in a village only a few
miles away from the village of the accused and though the betrothal was fixed 5 years
before the marriage, he did not know that the accused was insane, for if he had known
that such was the mental condition of the accused he would not have given his
daughter in marriage to him. It is impossible to conceive that he would not have

86
known that the accused was insane if he was really so, and particularly when it is the
case of the accused that it was not kept secret but was well known to many people and
to some of the witnesses, who came to depose for him. A month and a half prior to the
incident Chhaganlal had gone to Ahmedabad for medical treatment and during that
period the accused came from Ahmedabad to manage his father’s shop in his absence.
The fact that he was recalled from Ahmedabad was not disputed; but, while Natverlal
said that the accused was recalled in order to manage Chhaganlal’s shop in his
absence, Chhaganlal said that he was recalled because he was getting insane. The best
evidence would have been that of the relative in whose house the accused was
residing in Ahmedabad. But the relative was not examined. It appears to us that the
accused was serving in Ahmedabad in Monogram Mills and he was asked to come to
he village as his father to attend to the latter’s business a month and a half before the
incident, of the father was leaving for Ahmedabad for medical treatment. Before the
commencement of the trial in the Sessions Court on 27th June, 1959, an application
was filed on behalf of the accused, supported by an affidavit filed by the father of the
accused, praying that, as the accused had become insane, he should be sent for proper
medical treatment and observation. In that affidavit it was not stated that the accused
was getting fits of insanity for the last 4 or 5 years and that he had one such fit at that
time. If that was a fact, one would expect the father to allege prominently the said fact
in his affidavit. These facts lead to a reasonable inference that the case of the accused
that he had periodical fits of insanity was an afterthought. The general statements of
witnesses, P.Ws. 1 to 6 that he had such fits must, therefore, necessarily be false. We,
therefore, hold that the accused had no antecedent history of insanity.
Now coming to the date when the incident took place, P.W. 7, the father of the
accused, said that the accused was insane for 2 or 3 days prior to the incident. His
evidence further discloses that he and his wife had gone to Ahmedabad on the date of
the incident and returned in the same evening. If really the accused had a fit of
insanity a day or two before the incident, is it likely that both the parents would have
left him and gone to Ahmedabad To get over this incongruity P.W. 7 said that he went
to Ahmedabad to see a bridegroom for his daughter and also to get medicine for the
accused. But he did not say which doctor he consulted and where from he purchased
the medicines or whether in fact he bought any medicines at all. If the accused had a
fit of insanity, is it likely that the wife would have slept with htm in the same room

87
We must, therefore, hold that it had not been established that 2 or 3 days before the
incident the accused had a fit of insanity
Now we come to the evidence of what happened on the night of:he incident. Nobody
except the accused knows what happened in the bed-room. P.Ws. 2 to 7 deposed that
on the 10th April, 1959, corresponding to Chaitra Sudi 1, between 3 and 4 a.m. they
heard shouts of the deceased Kalavati to the effect that she was being killed; that they
all went to the room but found it locked from inside; that when the accused was asked
to open the door, he said that he would open it only after the Mukhi (P.W.1) was
called; that after the Mukhi came there, the accused opened the door and came out of
the room with a blood-stained knife in his hand; that the accused began talking
irrelevantly and was speaking “why, you killed my mother” “why, you burnt my
father’s house”; that afterwards the accused sat down and threw dust and mud at the
persons gathered there; and that he was also laughing without any cause. In short, all
the witnesses in one voice suggested that the accused was under a hallucination that
the deceased had murdered his mother and burnt his father’s house and, therefore, he
killed her in that state of mind without knowing what he was doing. But none of these
witnesses had described the condition of the accused immediately when he came out
of the room, which they did so graphically in the Sessions Court, at the time when
they made statements before the police. In effect they stated before the police that the
accused came out of the room with a blood-stained knife in his hand and admitted that
he had murdered his wife; but in the witness-box they said that when the accused
came out of the room he was behaving like a mad man and giving imaginary reasons
for killing his wife. The statements made in the depositions are really inconsistent
with the earlier statements made before the police and they are, therefore,
contradictions within the meaning of section 162 of the Code of Criminal Procedure .
We cannot place any reliance on the evidence of these witnesses; it is an obvious
development to help the accused.

The subsequent events leading up to the trial make it abundantly clear that the plea of
insanity was a belated afterthought and a false case. After the accused came out of the
room, he was taken to the chora and was confined in a room in the chora. P.W. 16, the
Police Sub-Inspector, reached Bherai at about 9-30 a.m. He interrogated the accused:
recorded his statement and arrested him at about 10-30 a.m. According to him, as the

88
accused was willing to make a confession, he was sent to the Judicial Magistrate. This
witness described the condition of the accused when he met him thus:

“When I went in the chora he had saluted me and he was completely sane. There was
absolutely no sign of insanity and he was not behaving as an insane man. He was not
abusing. He had replied to my questions understanding them and was giving relevant
replies. And therefore I had sent him to the Magistrate for confession as he wanted to
confess.”
When sent to the medical examiner, the Doctor examined the accused at 9-30 p.m.
and gave his evidence as P.W.11. He proved the certificate issued by him, Exhibit 23.
Nothing about the mental condition of the accused was noted in that certificate.
t is said that the situation in the room supports the version that the accused did not
know what he was doing. It is asked, why the accused, should have given so many
stabs to kill an unarmed and undefended woman It is said that it discloses that the
accused was doing the act under some hallucination. On the other hand the existence
of the weapons in the room, the closing of the door from inside, his reluctance to
come out of the room till the Mukhi came, even if that fact is true, would indicate that
it was a premeditated murder and that he knew that if he came out of the room before
the Mukhi came he might be manhandled. Many sane men give more than the
necessary stabs to their victims. The number of blows given might perhaps reflect his
vengeful mood or his determination to see that the victim had no escape. One does not
count his strokes when he commits murder. We, therefore, do not see any indication
of insanity from the materials found in the room; on the other hand they support the
case of premeditated murder.

INTOXICATION
Section 85 protects a man from criminal liability, if, at the time of committing the
offence, he was incapable of knowing the nature of the act or that he was doing
something wrong or contrary to law by reason of intoxication, provided that the
intoxicant was administered to him “without his knowledge” or “against his will”. A
person seeking protection of section 85 is required to establish that he was: (i)
incapable of knowing the nature of the act committed, or (ii) that he was doing what
was either wrong or contrary to law, and (iii) that the thing which intoxicated him was
administered to him without his knowledge or against his will.

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BASDEV VERSUS THE STATE OF PEPSU LNIND 1956 SC 34
The appellant Basdev of the village of Harigarh is a retired military Jamadar. He is
charged with the murder of a young boy named Maghar Singh, aged about 15 or 16.
Both of them and others of the same village went to attend a wedding in another
village. All of them went to the house of the bride to take the midday meal on the 12th
March, 1954. Some had settled down in their seats and some bad not. The appellant
asked Maghar Singh, the young boy to step aside a little so that he may occupy a
convenient seat. But Maghar Singh did not move. The appellant whipped out a pistol
and shot the boy in the abdomen. The injury proved fatal.

The party that had assembled for the marriage at the bride s house seems to have
made itself very merry and much drinking was indulged in. The appellant Jamadar
boozed quite a lot and he became very drunk and intoxicated. The learned Sessions
Judge says "he was excessively drunk ? and that "according to the evidence of one
witness Wazir Singh Lambardar he was almost in an unconscious condition". This
circumstance and the total absence of any motive or premeditation to kill were taken
by the Sessions Judge into account and the appellant was awarded the lesser penalty
of transportation for life.
Section 86 which was elaborately considered by the High Court runs in these terms:

"In cases where an act done is not an offence unless done with a particular knowledge
or intent, a person who doe& the act in a state of intoxication shall be liable to be
dealt with as if he bad the same knowledge as he would have had if he bad not been
intoxicated, unless the thing which intoxicated him was administered to him without
his knowledge or against his will".

It is no doubt true that while the first part of the section speaks of intent or knowledge,
the latter part deals only with knowledge and a certain element of doubt in
interpretation may possibly be felt by reason of this omission. If in voluntary
drunkenness knowledge is to be presumed in the same manner as if there was no
drunkenness, what about those cases where mens rea is required.
So far as knowledge is Concerned, we must attribute to the intoxicated man the same
knowledge as if he was quite sober. But so far as intent or intention is concerned, we
must gather it from the attending general circumstances of the case paying due regard

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to the degree of intoxication. Was the man beside his mind altogether for the time
being? If so it would not be possible to fix him with the requisite intention. But if he
had not gone so deep in drinking, and from the facts it could be found that he knew
what he was about, we can apply the rule that a man is presumed to intend the natural
consequences of his act or acts. Of course, we have to distinguish between motive,
intention and knowledge. Motive is something which prompts a man to form an
intention and knowledge is an awareness of the consequences of the act. In many
cases intention and knowledge merge into each other and mean the same thing more
or less and intention can be presumed from knowledge. The demarcating line between
knowledge and intention is no doubt thin but it is not difficult to perceive that they
connote different things. Even in some English decisions, the three ideas are used
interchangeably and this has led to a certain amount of confusion.

In the old English case, Rex v. Meakin(1) Baron Alderson referred to the nature of the
instrument as an element to be taken in presuming the intention in these words:

"However, with regard to the intention, drunkenness may perhaps be adverted to

according to the nature of the instrument used. If a man uses a stick, you would not
infer a malicious intent so strongly against him, if drunk, when he made an
intemperate use of it, as he would if be bad used a different kind (1) [1836] 173 E.R.
131; 7 Car. & P. 295. of weapon; but where a dangerous instrument is used, which, if
used, must produce grievous bodily harm, drunkenness can have no effect on the
consideration of the malicious intent of the party."

In a charge of murdering a child levelled against a husband and wife who were both
drunk at the time, Patteson J., observed in Regina v. Cruse and Mary his wife (1)

"It appears that both these persons were drunk, and although drunkenness is no excuse
for any crime whatever, yet it is often of very great importance in cases where it is a
question of intention. A person may be so drunk as to be utterly unable to form any
intention at all, and yet he may be guilty of very great violence."

Slightly different words but somewhat more illuminating were used by Coleridge J.,
in Reg. v. Monkhouse(2)

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"The inquiry as to intent is far less simple than that as to whether an act has been
committed, because you cannot look into a man s mind to see what was passing there
at any given time. What he intends can only be judged of by what he does or says, and
if he says nothing, then his act alone must guide you to your decision. It is a general
rule in criminal law, and one founded on common sense, that juries are to presume a
man to do what is the natural con sequence of his act. The consequence is sometimes
so apparent as to leave no doubt of the intention. A man could not put a pistol which
he knew to be loaded to another s bead, and fire it off, without intending to kill him;
but even there the state of mind of the party is most material to be considered. For
instance, if such an act were done by a born idiot, the intent to kill could not be
inferred from the act. Sol if the defendant is proved to have been intoxicated, the
question becomes a more subtle one; but it is of the same kind, namely, was he
rendered by intoxication entirely incapable of forming the intent charged?"

(1) [1838] 173 E.R. 610; 8 Car. & P. 541. (2) [1849] 4 Cox. C.C. 55. "Drunkenness is
ordinarily neither a defence nor excuse for crime, and where it is available as a partial
answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was
excited or rendered more irritable, unless the intoxication was such as to prevent his
restraining himself from committing the act in question, or to take away from him the
power of forming any specific intention. Such a state of drunkenness may no doubt
exist". A great authority on criminal law Stephen J., postulated the proposition in this
manner in Beg. v. Doherty(1)-
"...... although you cannot take drunkenness as any excuse for crime, yet when the
crime is such that the intention of the party committing it is one of its constituent
elements, you may look at the fact that a man was in drink in considering whether he
formed the intention necessary to constitute the crime".

We may next notice Rex v. Meade(2) where the question was whether there was any
misdirection in his summing, up by Lord Coleridge, J. The summing up was in these
words:

"In the first place, every one is presumed to know the consequences of his acts. If he
be insane, that knowledge is not presumed. Insanity is not pleaded here, but where it
is part of the essence of a crime that a motive, a particular motive, shall exist in the

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mind of the man who does the act, the law declares this-that if the mind at that time is
so obscured by drink, if the reason is dethroned and the man is incapable therefore of
forming that intent, it justifies the reduction of the charge from murder to man-
slaughter".

Darling, J., delivering the judgment of the Court of Criminal Appeal affirmed the
correctness of the summing up but stated the rule in his own words as follows:

"A man is taken to intend the natural consequences of his acts. This presumption may
be rebutted (1) in the case of a sober man, in many ways: (1) [1887] 16 Cox C.C. 306.
(2) [1909] 1 K.B. 895, (2)it may also be rebutted in the case of a man who is drunk,
by shewing his mind to have been so affected by the drink he had taken that he was
incapable of knowing that what he was doing was dangerous, i.e., likely to inflict
serious injury. If this be proved, the presumption that he intended to do grievous
bodily harm is rebutted".

Finally, we have to notice the House of Lord s decision in Director of Public

Prosecutions v. Beard(1). In this case a prisoner ravished a girl of 13 years of age, and
in aid of the act of rape he placed his hand upon her mouth to stop her from screaming,
at the same time pressing his thumb upon her throat with the result that she died of
suffocation. Drunkenness was pleaded as a defence. Bailhache J. directed the jury that
the defence of drunkenness could only prevail if the accused by reason of it did not
know what he was doing or did not know that he was doing wrong. The jury brought
in a verdict of murder and the man was sentenced to death. The Court of Criminal
Appeal (Earl of Reading C.J., Lord Coleridge J., and Sankey, J.) quashed this
conviction on the ground of misdirection following Rex v. Meade(2) which
established that the presumption that a man intended the natural consequences of his
acts might be rebutted in the case of drunkenness by showing that his mind was so
affected by the drink that he bad taken that he was incapable of knowing that what he
was doing was dangerous. The conviction was, therefore, reduced to manslaughter.
The Crown preferred the appeal to the House of Lords and it was heard by a strong
Bench consisting of Lord Chancellor, Lord Birkenhead, Earl of Reading, C.J.,
Viscount Haldane, Lord Denedin, Lord Atkinson, Lord Sumner, Lord Buckmaster,
and Lord Phillimore. The Lord Chancellor delivered the judgment of the court. He

93
examined the earlier authorities in a lengthy judgment and reached the conclusion that
Rex v. Meade(2) stated the law rather too broadly, though on the facts there proved
the decision was right. "that a person charged with a crime of violence (1) [1920] A.C.
479. (2) [1909] 1 K.B. 895. The position may show, in order to rebut the presumption
that he intended the natural consequences of his acts, that he was so drunk that he was
incapable of knowing what he was doing was dangerous.................................. which
is what is said in Meade s case, was not correct as a general proposition of law and
their Lordships laid down three rules:

(1)That insanity, whether produced by drunkenness or otherwise, is a defence to the

crime charged;
(2)That evidence of drunkenness which renders the accused incapable of forming the
specific intent essential to constitute the crime should be taken into consideration with
the other facts proved in order to determine whether or not he had this intent;
(3)That evidence of drunkenness falling short of a proved incapacity in the accused to
form the intent necessary to constitute the crime, and merely establishing that his
mind was affected by drink so that he more readily gave way to some violent passion,
does not rebut the presumption that a man intends the natural consequences of his acts.
The result of the authorities is summarised neatly and compendiously at page 63 of
Russel on Crime, tenth edition, in the following words:
"There is a distinction, however, between the defence of insanity in the true sense
caused by excessive drunkenness and the defence of drunkenness which produces a
condition such that the drunken man s mind becomes incapable of forming a specific
intention. If actual insanity in fact supervenes as the result of alcoholic excess it
furnishes as complete an answer to a criminal charge as insanity induced by any other
cause. But in cases falling short of insanity evidence of drunkenness which renders
the accused incapable of forming the specific intent essential to constitute the crime
should be taken into consideration with the other facts proved in order to determine
whether or not he had this intent, but evidence of drunkenness which falls short of
proving such incapacity and merely establishes that the mind of the accused was so
affected by drink that he more readily gave way to some violent passion does not
rebut the presumption that a man intends the natural consequences of his act".

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In the present case the learned Judges have found that although the accused was under
the influence of drink, he was not so much under its influence that his mind was so
obscured by the drink that there was incapacity in him to form the required intention
as stated. They go on to observe:-

"All that the evidence shows at the most is that at times he staggered and was
incoherent in his talk, but the same evidence shows that he was also capable of
moving himself independently and talking coherently as well. At the same time it is
proved that be came to the darwaza of Natha Singh P.W. 12 by himself, that he made
a choice for his own seat and that is why he asked the deceased to move away from
his place, that after shooting at the deceased be did attempt to get away and was
secured at some short distance from the darwaza, and that when secured be realised
what he had done and thus requested the witnesses to be forgiven saying that it bad
happened from him. There is no evidence that when taken to the police station
Barnala, he did not talk or go there just as the witnesses and had to be specially
supported. All these facts, in my opinion, go to prove that there was not proved
incapacity in the accused to form the intention to cause bodily injury sufficient in the
ordinary course of nature to cause death. The accused had, therefore, failed to prove
such incapacity as would have been available to him as a defence, and so the law
presumes that he intended the natural and probable consequences of his act, in other
words, that he intended to inflict bodily injury to the deceased and the bodily injury
intended to be inflicted was sufficient in the ordinary course of nature to cause death".

NECESSITY
S 81- Necessity in legal context involves the judgment that the evil of obeying the
letter of the law is socially greater in the particular circumstances than the evil of
breaking it. In other words, the law has to be broken to achieve a greater good. It deals
with inevitable accidents.
The immunity from criminal liability under section 81 will be available where an
offence is committed without any criminal intention, to cause harm and in good faith
and if such offence is committed for the purpose of preventing or avoiding other harm
to person or property. In order to attract section 81, it is necessary to show that the act

95
complained of was done in good faith in order to prevent or avoid greater harm to the
person or property of others.
The Queen v. Dudley and Stephens
Citation. 264 F. 3d 344
Facts. The defendants, Mr. Brooks and the victim Mr. Parker were English seamen.
The group was cast away in a storm on the high seas and was compelled to put into an
open boat that had no supply of food or water. After the group had been without food
for seven days and without water for five days, the Defendants spoke to Mr. Brooks
about sacrificing the victim Mr. Parker to save the rest. Mr. Brooks dissented and the
victim was not consulted. Mr. Dudley suggested that if no vessel was in sight the next
morning, they would kill the victim. No vessel appeared the next day, so Mr. Dudley
with the assent of Mr. Stephens killed the victim. The three remaining castaways fed
upon the victim Mr. Parker for four days at which time a passing vessel rescued them.

Issue. Does the defense of necessity permit the killing of one person to save others?

Held. No. At the time of this case the doctrine of necessity was still largely
unexplored. Much of the prevailing authority at the time spoke of necessity in terms
of what is now called self-defense, i.e. taking another’s life to safeguard one’s own.
Lord Bacon provided some authority for the existence of the defense of necessity to
lesser crimes. For example, a hungry man is not guilty of larceny for stealing food.
However, the Queen’s Bench acknowledged that no court has ever accepted necessity
as a defense to murder and for good reason. Permitting such a defense to be asserted
raises poignant questions such as how does one measure the comparative values of
lives and who decides such things. Further, specific to the present case, Lord
Coleridge asks, “Was it more necessary to kill [Parker] than one of the grown men?”
While this murder was arguably not “devilish” and even though the men probably
would not have survived otherwise, Lord Coleridge held that there is never any
absolute or unqualified necessity to preserve one’s own life. Once such a defense is
allowed, there is no telling what atrocious crimes may be justified by the excuse of
necessity.

Discussion. Necessity is never a defense to murder.

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IN RE RAMASWAMI AYYAR VERSUS

LNIND 1921 MAD 23

Judgment
[1] The appellant in this case has been convicted and fined for an offence
under Section 341 Indian Penal Code , wrongful restraint of the person. The facts
appear to be these. The appellant was a Village Magistrate and on the day in question
his attention was drawn to the misconduct of one Mari Goundan. Mari Goundan is
described as having been very drunk. He tore the sacred thread of one of the witnesses
and, subsequently, at what stage of the proceeding it is not quite clear, bit the
appellant, the Village Magistrate, in the foot. Thereupon, the Village Magistrate with
the help of several persons tied his hands and removed him to the police station.
[2] The lower appellate Court took the view that there was nothing in the conduct of
Mari Goundan which justified the action of the appellant, on the ground that the
evidence disclosed that Mari Goundan was drank and probably disorderly, which is a
non-cognizable offence. An argument has (been addressed to us to show that under
various Regulations of the last century, the appellant as Village Magistrate possessed
powers which would enable him to effect an arrest in circumstances of this kind, apart
from his position as one of the general public. In our opinion, it is very doubtful
whether such Regulations giving such a power were not really repealed by Act XVII
of 1862; but in any case we think that the matter is of sufficient importance to base
our judgment upon a more general and wider ground and we propose to deaf with the
matter as if the Village Magistrate had been merely an ordinary member of the
general public.
[3] The Common Law of England on the subject seems to have become, if it was not
so at the outset, reasonably free from doubt. Hale in his "Pleas of the Crown" seems a
little doubtful as to how far the rights of arrest without a warrant except in cases of
felony extend, but we have been referred to later passages in Hawkins "Pleas of the
Crown," Russell "On Crimes," and other standard books, which show that the
Common Law rights are much wider than Lord Hale was disposed to concede.
Without going into ancient authorities we may cite a passage from a judgment of

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Parke, B., in Timothy v. Simpson (1835) 4 L.J. (Ex.), 81, which sums up the law. After
citing from Lambard, Hawkins, Hale and other text-books of authority he says:
It is clear therefore that any person present may arrest the affrayer at the moment of
the affray and detain him till his passion has cooled and his desire to break the peace
has ceased, and then deliver him to a peace officer. And if that be so, what reason can
there be why he may not arrest an affrayer after the actual violence is over, but whilst
he shows a disposition to renew it by persisting in remaining on the spot where he has
committed it. Both cases fall within the same principle, which is, that, for the sake of
the preservation of the peace any individual who sees it broken may restrain the
liberty of him whom he sees breaking it so long as his conduct shows that the public
peace is likely to be endangered by his acts. In truth whilst those are assembled
together who have committed acts of violence and the danger of their renewal
continues the affray itself may be said to continue.
[4] We have also been referred to a decision of the Court; of Crown Cases Reversed
in Queen v. Light (1857) 27 L.J. (M.C.), 1, where a very powerful Court consisting of
Cockburn, C.J., Erle and Williams, JJ., Martin and Channell, BB., held that there was
a power not only in a constable but in all Her Majesty s subjects to apprehend a
person as to whom there is reasonable ground for supposing that he is about to
commit a breach of the peace. The Common Law of England on the subject may be
said to be clearly established, and there is authority in this Court in In re Venkata
Reddy (1913) I.L.R., 86 Mad., 216 for holding that the Common Law of England may
be applied to India except where a Statute either expressly or by implication abrogates
it. We think that the power given in this matter is one which is very essential to the
orderly government of society and the preservation of the peace. No doubt the
magistracy and the judiciary should jealously watch any interference with the liberty
of the subject and scrutinize carefully the acts of any person who alleges that in order
to preserve the peace he had to interfere with the liberty of his fellow citizen. But if
that necessity is once clearly established, we think that it is not only the law, but it is
extremely expedient, that the power of interference should be upheld.
[5] In this case we think that there was ample justification, oil the facts as found, for
the appellant, not as Village Magistrate but as a private citizen, to put a restraint upon
this drunken and disorderly person who was not only threatening to commit a breach
of the peace but was a danger to the other villagers. We, therefore, hold that the
conviction and sentence must be set aside; the fine, if paid, must be refunded.

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Private Defence (Sections 96-106, IPC)
S 99 provides about limits to private defense. There is no right of private defence in
cases in which there is time to have recourse to the protection of public authorities.
The right of private defence in no case extends to the inflicting of more harm than it
is necessary to inflict for the purpose of defence.
The person exercising his right of private defence must consider whether the threat to
his person or property is real and immediate. If he reaches the conclusion reasonably
that the threat is immediate and real, he is entitled to exercise his right. In the exercise
of his right, he must use force necessary for the purpose and he must stop using the
force as soon as the threat has disappeared. So long as the threat lasts, the right of
private defence can be legitimately exercised.
State of U.P. v. Ram Swarup (1974) 4 SCC 764: AIR 1974 SC 1570
Y.V. CHANDRACHUD, J. –
On the morning of June 7, 1970 in the sabzi-mandi at Badaun, U. P., a person called
Sahib Datta Mal alias Munimji was shot dead. Ganga Ram and his three sons, Ram
Swarup, Somi and Subhash were prosecuted in connection with that incident. Ram
Swarup was convicted by the learned Sessions Judge, Badaun, under Section 302,
Indian Penal Code, and was sentenced to death. Ganga Ram was convicted under
Section 302 read with Section 34 and was sentenced to imprisonment for life. They
were also convicted under the Arms Act and sentenced to concurrent terms of
imprisonment. Somi and Subhash were acquitted of all the charges as also was Ganga
Ram of a charge under Section 307 of the Penal Code in regard to an alleged knife-
attack on one Nanak Chand. The High Court of Allahabad has acquitted Ganga Ram
and Ram Swarup in an appeal filed by them and has dismissed the appeal filed by the
State Government challenging the acquittal of Somi and Subhash.
In this appeal by special leave we are concerned only with the correctness of the
judgment of acquittal in favour of Ganga Ram and Ram Swarup. Except for a solitary
year, Ganga Ram held from the Municipal Board of Badaun the contract of Tehbazari

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in the vegetable market from 1954 to 1969. The deceased Munimji outbid Ganga Ram
in the annual auction of 1970-71 which led to the day-light outrage of June 7, 1970.
Facts :- At about 7 a.m. on that day Ganga Ram is alleged to have gone to the market
to purchase a basket of melons. The deceased declined to sell it saying that it was
already marked for another customer. Hot words followed during which the deceased,
asserting his authority, said that he was the Thekedar of the market and his word was
final. Offended by this show of authority, Ganga Ram is alleged to have left in a huff.
An hour later Ganga Ram went back to the market with his three sons, Ram Swarup,
Somi and Subhash. Ganga Ram had a knife, Ram Swarup had a gun and the two
others carried lathis. They threw a challenge saying that they wanted to know whose
authority prevailed in the market. They advanced aggressively to the gaddi of the
deceased who, taken by surprise, attempted to rush in a neighbouring kothari. But that
was much too late for before he could retreat, Ram Swarup shot him dead at point-
blank range. It was at all stages undisputed that Ganga Ram and Ram Swarup went to
the market at about 8 a.m. that one of them was armed with a gun and that a shot fired
from that gun by Ram Swarup caused the death of Munimji.
Though there was no direct evidence of the 7 O’clock incident the learned Sessions
Judge accepted the prosecution case that the shooting was preceded by that incident.
In coming to that conclusion the learned Judge relied upon the evidence of Sona Ram,
Nanak Chand, Shanti Lal, Shariat Ullah and Shiva Dutta Mal (P. Ws. 1 to 5) to whom
the deceased had narrated the incident. These witnesses were also examined in order
to establish the main incident and their evidence in that regard was also accepted by
the learned Judge. Having found that these witnesses were trustworthy and that their
evidence established the case of the State of U.P. v. Ram Swarup 107 prosecution the
learned Judge proceeded to consider whether, as contended by Ganga Ram and Ram
Swarup, the shot was fired by Ram Swarup in exercise of the right of private defence.
Adverting to a variety of circumstances the learned Judge rejected that theory and
held that the charges levelled against the two accused were proved beyond a
reasonable doubt. The High Court disbelieved the evidence in regard to the 7 O’clock
incident. In any case, according to the High Court, that incident was far too trifling to
lead to the shooting outrage. The High Court accepted the defence version that a
scuffle had taken place between the deceased Munimji and Ganga Ram and that
Ganga Ram was assaulted with lathis by Shiva Dutta Mal (PW5) and the servants of
the deceased.

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The High Court concluded: If Ganga Ram was being given repeated lathi blows by
PW Shiv Dutta Mal and servants of the deceased, then Ram Swarup had full
justification to fire his gun in the right of private defence of the person of his father. It
may be that the gun fire injured the deceased, rather than those who were belabouring
Ganga Ram with lathis. But once we come to the conclusion that it was not unlikely
that Ram Swarup had used his gun in the circumstances narrated above, i.e. in order to
save his aged father from the clutches and assaults of his assailants, he cannot be held
guilty of murder or for that matter of that of any other offence. In regard to Ganga
Ram, the High Court held that he could not be found guilty under Section 302 read
with Section 34: as his presence in the sabzi mandi was not for the purpose of killing
the deceased, as suggested by the prosecution, but he had more probably reached
there along with his son Ram Swarup, on way back from their vegetable farm, in
order to purchase melons. .... The burden which rests on the prosecution to establish
its case beyond a reasonable doubt is neither neutralised nor shifted because the
accused pleads the right of private defence. The prosecution must discharge its initial
traditional burden to establish the complicity of the accused and not until it does so
can the question arise whether the accused has acted in self-defence. This position,
though often overlooked, would be easy to understand if it is appreciated that the
Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial.
Unlike in a civil case, it is open to a criminal court to find in favour of an accused on
a plea not taken up by him and by so doing the Court does not invite the charge that it
has made out a new case for the accused. The accused may not plead that he acted in
self-defence and yet the Court may find from the evidence of the witnesses examined
by the prosecution and the circumstances of the case either that what would otherwise
be an offence is not one because the accused has acted within the strict confines of his
right of private defence, or that the offence is mitigated because the right of private
defence has been exceeded. For a moment, therefore, we will keep apart the plea of
the accused and examine briefly by applying the well-known standard of proof
whether the prosecution, as held by the Sessions Court, has proved its case. The
evidence of the five witnesses - Sona Ram, Nanak Chand, Shanti Lal, Shariat Ullah,
Shiva Dutta Mal - is consistent and convincing on the broad points of the case. The
Sessions Court accepted that evidence after a careful scrutiny and we are inclined to
the view 108 State of U.P. v. Ram Swarup that the High Court was unduly suspicious
of that evidence in the name of caution. The High Court thought that the evidence of

101
these witnesses must be viewed with great caution because Sona Ram and Shanti Lal
are the first cousins of the deceased, Nanak Chand and Shiva Dutta Mal were co-
sharers of the deceased in the Tehbazari contract, Shariat Ullah was a constituent of
the deceased and because Sona Ram, Nanak Chand and Shiva Dutta Mal being co-
sharers in the contract should have been moving about the market rather than remain
at the gaddi of the deceased where he was shot down. Caution is a safe and unfailing
guide in the judicial armoury but a cautious approach does not justify an a priori
assumption that the case is shrouded in suspicion. This is exemplified by the rejection
of the melon incident by the High Court on the grounds, inter alia, that there was no
entry in the account books of the deceased evidencing the sale of the melon-basket
and that the owner of the melons was not called to support the prosecution case. The
point in issue was not whether the melon-basket was in truth and reality sold to
another customer, in which case the evidence of the owner and the account books of
the deceased would have some relevance. The point of the matter was that there was
trade rivalry between the deceased and Ganga Ram, their relations were under a deep
strain and therefore, the deceased declined to sell the melons to Ganga Ram. The
excuse which the deceased trotted out may be true or false. And indeed, greater the
falsity of that excuse, greater the affront to Ganga Ram. The melon incident formed a
prelude to the main occurrence and was its immediate cause. By disbelieving it or by
treating it alternatively as too trifling the High Court was left to wonder why Ganga
Ram and Ram Swarup went to the market armed with a gun, which they admittedly
did. The case of the prosecution that they went back to the market to retaliate against
the high-handedness of the deceased was unacceptable to the High Court because ... it
does not stand to reason that the appellants and their two other companions (sons of
Ganga Ram) would walk into the lion’s den in broad day light and be caught and
beaten up, and even be done to death by the deceased, his partners and servants,
besides hundreds of people who were bound to be present in the Sabzimandi at about
8 a.m. Such a large congregation could have easily disarmed the appellants and their
two other companions and given them a thorough beating if not mortal injuries.
Evidently, they did go to the market which to their way of thinking was not a lion’s
den. And they went adequately prepared to meet all eventualities. The large
congregation of which the High Court speaks is often notoriously indifferent to
situations involving harm or danger to others and it is contrary to common experience
that anyone would readily accost a gun-man in order to disarm him. 12. The High

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Court saw yet another difficulty in accepting the prosecution case: Even if the
appellants and their companions would have been so very hazardous, they could not
have exposed their lives by carrying only one cartridge in the gun, if they had really
gone to murder the deceased and make a safe retreat. It might very well have been
that the first shot went astray and did not hit the deceased. It was, therefore, necessary
to have at least both the barrells loaded with cartridges. In fact one would expect the
ready availability of more cartridges with the appellants, because they were bound to
fire some rounds of shots to create a scare in the crowded Sabzimandi, before making
good their State of U.P. v. Ram Swarup 109 escape. For this reason also one would
expect them to keep both the barrels loaded with cartridges and also to carry some
spare cartridges for the sake of contingency and safety. Murders like the one before us
are not committed by coolly weighing the pros and cons. Ganga Ram and Ram
Swarup were wounded by the high and mighty attitude of a trade rival and they went
back to the market in a state of turmoil. They could not have paused to bother whether
the double-barrelled gun contained one cartridge or two, any more than an assailant
poised to stab would bother to take a spare knife. On such occasions when the mind is
uncontrollably agitated, the assailants throw security to the winds and being
momentarily blinded by passion are indifferent to the consequences of their action.
The High Court applied to the mental processes of the respondents a test far too rigid
and unrealistic than was justified by the circumstances of the case and concluded: It is
noteworthy that P.W. 1 Sona Ram clearly admits that Ganga Ram had a farm in
village Naushera, which is at a distance of two miles from Badaun. It is very likely
that the two appellants must have been going every early morning to have a round of
their vegetable farm and returning home therefrom at about 8 a.m. in the sultry month
of June. It is not surprising that on such return to Badaun on the morning of June 7,
1970 the appellants went to the Sabzimandi in order to purchase melons, when they
were called to the Gaddi of the deceased, ultimately resulting in the fatal occurrence,
as suggested by the defence. The High Court assumed without evidence that Ganga
Ram used to carry a gun to his vegetable farm and the whole of the conclusion
reproduced above would appear to be based on the thin premise that Sona Ram had
admitted that Ganga Ram had a village farm situated at a distance of two miles from
Badaun. We find it impossible to agree with the reasons given by the High Court as to
why ‘Ganga Ram and Ram Swarup went to the market and how they happened to
carry a gun with them. It is plain that being slighted by the melon incident, they went

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to the market to seek retribution. The finding recorded by the High Court that the
respondents went to the market for a casual purchase and that they happened to have a
gun because it was their wont to carry a gun is the very foundation of its acceptance
of the theory of private defence set up by the respondents. According to the High
Court a routine visit to the market led to an unexpected quarrel between the deceased
and Ganga Ram, the quarrel assumed the form of grappling, the grappling provoked
the servants of the deceased to beat Ganga Ram with lathis and the beating impelled
Ram Swarup to use the gun in defence of his father. Our view of the genesis of the
shooting incident must, at the very threshold, deny to the respondents the right of
private defence. The right of private defence is a right of defence, not of retribution. It
is available in the face of imminent peril to those who act in good faith and in no case
can the right be conceded to a person who stage-manages a situation wherein the right
can be used as a shield to justify an act of aggression. If a person goes with a gun to
kill another, the intended victim is entitled to act in self-defence and if he so acts,
there is no right in the former to kill him in order to prevent him from acting in self-
defence. While providing for the right of private 110 State of U.P. v. Ram Swarup
defence, the Penal Code has surely not devised a mechanism whereby an attack may
be provoked as a pretence for killing. Angered by the rebuff given by the deceased
while declining to sell the melons, Ganga Ram went home and returned to the market
with the young Ram Swarup who, on the finding of the High Court, carried a gun with
him. Evidently, they went to the market with a pre-conceived design to pick up a
quarrel. What semblance of a right did they then have to be piqued at the resistance
put up by the deceased and his men? They themselves were the lawless authors of the
situation in which they found themselves and though the Common Law doctrine of
“retreat to the wall” or “retreat to the ditch” as expounded by Blackstone has
undergone modification and is not to be applied to cases where a victim, being in a
place where he has a right to be, is in face of a grave uninvited danger, yet, at least
those in fault must attempt to retreat unless the severity of the attack renders such a
course impossible. The exemption from retreat is generally available to the faultless
alone. Quite apart from the consideration as to who was initially at fault, the extent of
the harm which may lawfully be inflicted in self-defence is limited. It is a necessary
incident of the right of private defence that the force used must bear a reasonable
proportion to the injury to be averted, that is, the injury inflicted on the assailant must
not be greater than is necessary for the protection of the person assaulted.

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Undoubtedly, a person in fear of his life is not expected to modulate his defence step
by step or tier by tier, for as Justice Holmes said in Brown v. United States “detached
reflection cannot be demanded in the presence of an uplifted knife”. But Section 99
provides in terms clear and categorical that “the right of private defence in no case
extends to the inflicting of more harm than it is necessary to inflict for the purpose of
defence”. Compare for this purpose the injuries received by Ganga Ram with the
injuries caused to the deceased in the alleged exercise of the right of private defence.
Dr N. A. Farooqi who examined Ganga Ram found that he had four contusions on his
person and that the injuries were simple in nature. Assuming that Ganga Ram had
received these injuries before Ram Swarup fired the fatal shot, there was clearly no
justification on the part of Ram Swarup to fire from his gun at point-blank range.
Munimji was shot on the chest and the blackening and tattooing around the wound
shows that Ram Swarup fired his shot from a very close range. Under Section 100 of
the Penal Code the right of private defence of the body extends to the voluntary
causing of death if the offence which occasions the exercise of the right is of such a
nature as may, to the extent material, reasonably cause the apprehension that death or
grievous hurt will otherwise be the consequence of the assault. Considering the nature
of injuries received by Ganga Ram, it is impossible to hold that there could be a
reasonable apprehension that he would be done to death or even that grievous hurt
would be caused to him. The presence of blood near the door leading to room No. 2
and the pellet marks on the door-frame show that Ram Swarup fired at the deceased
when the latter was fleeing in fear of his life. In any event, therefore, there was no
justification for killing the deceased selectively. The right of defence ends with the
necessity for it. Under Section 102, Penal Code, the right of private defence of the
body commences as soon as a reasonable apprehension of danger to State of U.P. v.
Ram Swarup 111 the body arises and it continues as long as such apprehension of
danger continues. The High Court refused to attach any significance to the pellet-
marks on the door-frame as it thought that “the gun fire which hit the chaukhat was
not the one which struck the deceased”. But this is in direct opposition to its own view
that the respondents had loaded only one cartridge in the gun - a premise from which
it had concluded that the respondents could not have gone to the market with an evil
design. Basically, there was no reason to suppose that the shot which killed the
deceased was not the one which hit the door-frame. It is quite clear that the deceased
was shot after he had left his gaddi and while he was about to enter room No. 2 in

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order to save his life. It would be possible to analyse the shooting incident more
minutely but it is sufficient to point out that under Section 105 of the Evidence Act,
when a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the Penal
Code, is upon him and the Court shall presume the absence of such circumstances.
The High Court must, of course, have been cognizant of this provision but the
judgment does not reflect its awareness of the provision and this we say not merely
because Section 105 as such has not been referred to in its judgment. The importance
of the matter under consideration is that Sections 96 to 106 of the Penal Code which
confer and define the limits of the right of private defence constitute a general
exception to the offences defined in the Code; in fact these sections are a part of
Chapter IV headed “General Exceptions”. Therefore, the burden of proving the
existence of circumstances which would bring the case within the general exception
of the right of private defence is upon the respondents and the Court must presume the
absence of such circumstances. The burden which rests on the accused to prove that
any of the general exceptions is attracted does not absolve the prosecution from
discharging its initial burden and truly, the primary burden never shifts save when a
statute displaces the presumption of innocence; “indeed, the evidence, though
insufficient to establish the exception, may be sufficient to negative one or more of
the ingredients of the offence”. That is to say, an accused may fail to establish
affirmatively the existence of circumstances which would bring the case within a
general exception and yet, the facts and circumstances proved by him, while
discharging the burden under Section 105 of the Evidence Act, may be enough to cast
a reasonable doubt on the case of the prosecution, in which event he would be entitled
to an acquittal. The burden which rests on the accused to prove the exception is not of
the same rigour as the burden on the prosecution to prove the charge beyond a
reasonable doubt. It is enough for the accused to show, as in a civil case, that the
preponderance of probabilities is in favour of his plea. The judgment of one of us,
Beg, J., in Rishikesh Singh v. State [AIR 1970 All 51] explains the true nature and
effect of the different types of presumptions arising under Section 105 of the
Evidence Act. As stated in that judgment, while the initial presumption regarding the
absence of circumstances bringing the case within an exception may be met by
showing the existence of appropriate facts, the burden to establish a plea of private
defence by a balance of probabilities is a more difficult burden to discharge. The

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judgment points out that despite this position there may be cases where, though the
plea of private defence is not established by an accused on a balance of probabilities,
yet the totality of facts and circumstances may still throw a reasonable doubt on the
existence of “mens rea”, which 112 State of U.P. v. Ram Swarup normally is an
essential ingredient of every offence. The present is not a case of this latter kind.
Indeed realising that a simple plea of private defence may be insufficient to explain
the nature of injuries caused to the deceased, Ram Swarup suggested that the shot
fired by him at the assailants of his father Ganga Ram accidentally killed the deceased.
We have no doubt that the act of Ram Swarup was deliberate and not accidental. The
respondents led no evidence to prove their defence but that is not necessary because
such proof can be offered by relying on the evidence led by the prosecution, the
material elicited by cross-examining the prosecution witnesses and the totality of facts
and circumstances emerging out of the evidence in the case. In view of the
considerations mentioned earlier we find it impossible to hold that Ram Swarup fired
the shot in defence of his father Ganga Ram. The circumstances of the case negative
the existence of such a right. The conclusion of the High Court in regard to Ram
Swamp being plainly unsupportable and leading as it does to a manifest failure of
justice, we set aside the order acquitting Ram Swarup and restore that of the Sessions
Court convicting him under Section 302 of the Penal Code. The possibility of a
scuffle, of course not enough to justify the killing of Munimji, but bearing relevance
on the sentence cannot, however, be excluded and we would therefore reduce the
sentence of death imposed on Ram Swarup by the Sessions Court to that of life
imprisonment. We also confirm the order of conviction and sentence under Section
25(1) (a) and Section 27 of the Arms Act and direct that all the sentences shall run
concurrently. In regard to Ganga Ram, however, though if we were to consider his
case independently for ourselves we might have come to a conclusion different from
the one to which the High Court has come, the principles governing appeals under
Article 136 of the Constitution would require us to restrain our hands. The incident
happened within the twinkling of an eye and there is no compelling reason to differ
from the concurrent finding of the High Court and the Sessions Court that Ganga Ram
never carried the gun and that at all stages it was Ram Swarup who had the gun. The
finding of the Sessions Court that “Ram Swarup must have shot at the deceased at the
instigation of Ganga Ram” is based on no evidence for none of the five eye-witnesses
speaks of any such instigation. On the contrary, Shariat Ullah (PW4) says that “as

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soon as they came, Ram Swarup opened the gun-fire” and Shiva Dutta Mal (PW5)
says that “just after coming forward, Ram Swarup opened the gunfire”. The evidence
of the other three witnesses points in the same direction. True, that these witnesses
have said that Ganga Ram and Ram Swarup challenged with one voice the authority
of the deceased, but in discarding that part of the evidence we do not think that the
High Court has committed any palpable error requiring the interference of this Court.
Such trite evidence of expostulations on the eve of an attack is often spicy and tends
to strain one’s credulity. We therefore confirm the order of the High Court acquitting
Ganga Ram of the charge under Section 302 read with Section 34 of the Penal Code.
The High Court was clearly justified in acquitting Ganga Ram of the charge under
Section 307, Penal Code, in regard to the knife-attack on Nanak Chand. Nanak Chand
received no injury at all and the story that the knife-blow missed Nanak Chand but
caused a cut on his Kurta and Bandi seems incredible. The High Court examined
these clothes but State of U.P. v. Ram Swarup 113 found no cut marks thereon. Tears
there were on the Kurta and Bandi but it is their customary privilege to be torn. With
that, the conviction and sentence under the Arms Act for possession of the knife is to
fall. There is no substance in the charge against Ganga Ram under Section 29(6) of
the Arms Act because he cannot be said to have delivered his licensed gun to Ram
Swarup. The better view is that Ram Swarup took it. We, therefore, confirm the order
of acquittal in favour of Ganga Ram on all the counts. ****

ACTS DONE UNDER CONSENT

Why is Consent an Exception?
The drafters of the Code, explaining the object , that is the general rule is that
nothing ought to be an offence by reason of any harm which it may cause to a person
of ripe age, who, undeceived, has given a free and intelligent consent to suffer that
harm or to take the risk of that harm. The restrictions by which the rule is limited
affect only cases where human life is concerned. … The reason on which the general
rule which we have mentioned rests, is this, that it is impossible to restrain men of
mature age and sound understanding from destroying their own property, their own
health, their own comfort, without restraining them from an infinite number of
salutary and innocent actions. It is by no means true that men always judge rightly of
their own interests.
BISHAMBHER VERSUS ROOMAL

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LNIND 1950 ALL 314
JUDGMENT
P.L. BHARGAVA, J.
(1.) This is an application in revision against an order of acquittal. It has been filed
after a similar application to the Sessions Judge of Meerut has been rejected. Such an
application can be entertained only in exceptional cases; and it was admitted having
regard to the special circumstances of the case, because, at the time of its presentation,
it was thought that, on the facts found, a question of law of general importance to the
community arose in the case. After hearing the learned counsel for the parties, and
after going through the record, I find that the only question which arises for
consideration in this revision is whether the accused persons were entitled to and were
rightly allowed the benefits of the exceptions mentioned in Sections 81 , 87 and 88 ,
Penal Code .

(2.) Rumal Singh, Fateh Singh and Balwant Singh, Khacheru, Mansukh and Nathu
were prosecuted for offences punishable under Sections 323 and 506 read with
Section 114, Penal Code . They were tried by the Bench Magistrates of Meerut
Cantonment and were found guilty of the offences with which they were charged.
Accordingly, they were convicted and sentenced. They preferred an appeal, which
was heard by the Assistant Sessions Judge of Meerut. The appeal was allowed and the
conviction of and the sentence imposed upon each of them were set aside; and they
were acquitted. Bishambhar Sahai, the complainant, filed a revision against the order
of acquittal in the Court of the Sessions Judge of Meerut. The revision, which came
up for hearing before the Additional Sessions Judge of Meerut, was rejected.

(3.) The facts found by the learned Assistant Sessions Judge are these. The
complainant, Bishambhar, had molested a Chamar girl, named Nathia. Khacheru,
Mansukh and Nathu, who were among the accused persons, are related to Pooran, the
father of the girl. On account of the indecent assault on the girl, the Chamars were
very much agitated; and, having armed themselves with lathis, about 200 Chamars
had collected near the house of one Ghasita Chamar. They were determined to punish
the complainant, and had caught hold of him. Rumal Singh, Fateh Singh and Balwant
Singh had intervened and tried to bring about a settlement. They along with other
accused, who were the relations of the girl, had, in good faith, collected a Panchayat;

109
and with a view to avoid other harm to the complainant and with his consent, the
Panchayat had decided, in the interest of and for the benefit of the complainant, to
blacken his face and to give him shoe-beating. In pursuance of the decision of the
Panchayat the complainant’s face was blackened and he was given a shoe-beating.

(4.) The complainant’s version that, on the day of the occurrence in the morning,
Rumal Singh, Fateh Singh and Balwant Singh had gone to the house of the
complainant to demand a subscription of Rs. 50 in connection with the Mela, to be
held at Gagol on the Independence Day, and that on account of his refusal to pay
more than Rs. 5, the complainant was threatened with dire consequences and was
surrounded and attacked the same evening by the accused persons, at whose instance
his face was blackened by Khacheru Chamar and Khacheru Sweeper had given him
shoe-beating five times, was absolutely false except to the extent indicated above.

(5.) Learned counsel for the complainant has contended that the self-constituted
Panchayat had no justification whatsoever to subject the complainant to a kind of
treatment which was meted out to him, viz., taking him round the village with a
blackened face and giving him a shoe-beating; and that such a conduct, on the part of
the miscreants, should not be allowed to go unpunished. In ordinary circumstances
such a conduct would not be tolerated; and those responsible for it would be dealt
with according to law. But, in a case like this, when the accused persons acted bona
fide, without any criminal intent, in order to save the complainant from serious
consequences, resulting from his own indecent behaviour, with his consent obtained
in writing and for his benefit, the position is entirely different.

(6.) Under Section 81, Penal Code , nothing is an offence merely by reason of its
being done with the knowledge that it is likely to cause harm, if it be done without
any criminal intention to cause harm, and in good faith for the purpose of preventing
or avoiding other harm to person or property. As a result of his having been paraded
with a blackened face and given a shoe-beating, the complainant was, no doubt,
subjected to humiliation and disgrace; but the accused persons had not done so with
any criminal intention. The accused were charged with offences punishable under ,
Sections 323 and 506 , Penal Code; and in both these offences intention is an
important factor to be determined. As has already been stated, in this case it has been

110
found that the accused had intervened in good faith; and but for their intervention
grave consequences might have ensued.

(7.) Section 87, Penal Code , lays down that nothing which is not intended to cause
death or grievous hurt, and which is not known by the doer to be likely to cause death,
or grievous hurt, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause to any person above 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 take the risk of that harm. It is true that if an act is unlawful in the sense
of being in itself a , criminal act, it cannot be rendered lawful because the person to
whose detriment it is done consents to it; but there are many acts the commission of
which in the circumstances mentioned in the section may not amount to an offence.

(8.) In the present case, admittedly the complainant had affixed his signature on a
paper. His contention that at the time when he affixed his signature, the paper was
blank has not been accepted by the Assistant Sessions Judge. The writing on this
paper shows that the complainant had given his consent to the decision of the
Panchayat being carried out. Having already suffered humiliation and disgrace in
consequence of his indecent conduct being found out, in order to avoid physical
violence to his person, he consented to suffer further humiliation and disgrace. In the
circumstances in which he was placed, he thought it was the best course for him to
adopt; and having given his consent he cannot complain of the consequence which
ensued. (9.) The next Section 88, Penal Code , provides that 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. This
section allows infliction of any harm provided it is for the benefit of the person to
whom it is caused; but it contemplates case of a different nature.

(10.) There was hardly any regular Panchayat, in fact, there could be no such
Panchayat because Rumal Singh is a Gujar, Fateh Singh is an Ahir and Balwant Singh
is a Brahmin while others present were Chamars, including the relations of the girl

111
who had been molested. As already stated, Rumal Singh, Fateh Singh and Balwant
had intervened in this affair, if I may use that expression, to pull the complainant out
of fire. Through the good office of these people the Chamars, who had caught hold of
the complainant, were persuaded to release him on condition that those who had
assembled would punish him suitably. In villages to blacken the face of a person, who
has committed an indecent assault on a girl or woman, and to give him a shoe-beating,
in order to deter him and others from behaving in that manner again, is not uncommon;
consequently, the accused considered in good faith that as the complainant had
outraged the modesty of a girl of the village, he should suffer that disgrace. For this
they might have been held liable but for the findings which have been recorded by the
Assistant Sessions Judge regarding their bona fides and their having acted in the
interest and for the benefit of the complainant with his consent. In the circumstances
the accused cannot be described as miscreants; they had intervened in the affair to
avert serious consequences to the complainant.

(11.) For the reasons stated above, I am of opinion that the learned Assistant Sessions
Judge was justified in giving the accused benefit of the exception contained in
Sections 81 and 87 , Penal Code and to acquit them. The allegations in the complaint
being false, it was rightly dismissed. I, therefore, see no reason to interfere with the
order of acquittal passed in this case. The revision is, accordingly, rejected.

112
 MODULE 6
INCHOATE CRIMES

CONSPIRACY
The main ingredients of section 120A, IPC, are:6
(1)There should be two or more persons.
(2)There should be an agreement between themselves.
(3)The agreement must be to do or cause to be done:
(a)an illegal act; or
(b)a legal act by illegal means.
A mere agreement to commit an offence (without proof of any overt act in pursuance
thereof) amounts to criminal conspiracy. And also, mere agreement to do or cause to
be done an illegal act (other than an offence) or a legal act by illegal means does not
amount to criminal conspiracy unless a party to the agreement commits some overt
act in pursuance of the agreement. The gist of a criminal conspiracy embodied in
section 120A is the unlawful combination and ordinarily the offence is complete when
the combination is framed.
Parveen @Sonu v State of Haryana, LL 2021 SC 715
parveen-sonu-v-state-of-haryana-criminal-conspiracy-405519.pdf (livelaw.in)
Facts : The facts of the case, as called out from the case of the prosecution, are as
under. On 14.03.2009, the police party was escorting four accused namely Nadeem,
Naushad, Ravi & Sunil from the Central Jail, Jaipur and they were to be produced in

113
the Court of CJM, Bhiwani. They reached Railway Station Rewari, in the morning at
04:30 hrs. They then boarded the train for Bhiwani. When the train reached at
Railway Station Nangal Pathani, four young boys entered their compartment and
attacked the police party in order to rescue the accused, who were in police custody
and were to be produced in the Court of CJM, Bhiwani. The accused, who were in
custody, also tried to escape. They even tried to snatch the official carbine. It is
alleged that one of the accused fired upon Head Constable Arjun Singh. In the
complaint, it was stated that the police overpowered one person, who had thrown
chilly powder in their eyes and the remaining three accused succeeded in fleeing. The
apprehended accused disclosed his name and identity of other assailants. Injured Head
Constable Arjun Singh was shifted to hospital, who succumbed to fire arm injuries
subsequently. After completing investigation, all the accused were prosecuted for the
offences punishable under Sections 224, 225, 332, 353, 392, 307, 302, 120-B of the
IPC and Section 25/54/59 of the Arms Act.
Both the sessions and High court had held the accused guilty for commission of
offences punishable under Sections 224, 225, 332, 353, 302 r/w Section 120-B of the
Indian Penal Code.

8. In this Appeal to the Supreme court , it is contended by learned Counsel for the
appellant that though there was no concrete proof to establish the participation of the
appellant in the alleged crime, the Trial Court as well as the High Court believed the
prosecution story in absence of any supporting evidence and convicted him. It is
submitted that except the alleged confessional statements of co– accused, there was
no other acceptable evidence to connect the appellant herein to the crime. It is
submitted that as per the case of prosecution, apart from the police party who were
escorting accused in the train, there were about 50–60 passengers. No independent
witness was examined. Out of the four young boys who boarded the train, only one
was having a country made pistol and fired. There was no TIP (Test Identification
Parade) conducted. The accused, who was apprehended as per the prosecution, was
only Vinod and all the other three persons fled away. But the other person who is
stated to be identified, was Amarjit who had fired a shot upon Arjun Singh, Head
Constable. It is submitted that though there was absolutely no evidence to connect the
appellant/accused, the Trial Court has convicted the appellant in absence of any
acceptable evidence to prove the guilt of the appellant. It is submitted that even the

114
High Court, except recording the depositions of all the witnesses, has not considered
any of the grounds urged, and dismissed the Appeal. In support of the case of the
appellant, learned Counsel has relied on the judgment of this Court in the case of
Indra Dalal v. State Of Haryana1 and the judgment of this Court in the case of Uppa
alias Manjunatha v. State of Karnataka.
12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of
Section 120-B, it is necessary to establish that there was an agreement between the
parties for doing an unlawful act. At the same time, it is to be noted that it is difficult
to establish conspiracy by direct evidence at all, but at the same time, in absence of
any evidence to show meeting of minds between the conspirators for the intended
object of committing an illegal act, it is not safe to hold a person guilty for offences
under Section 120-B of IPC. A few bits here and a few bits there on which
prosecution relies, cannot be held to be adequate for connecting the accused with the
commission of crime of criminal conspiracy. Even the alleged confessional statements
of the co-accused, in absence of other acceptable corroborative evidence, is not safe to
convict the accused. In the case of Indra Dalal v. State Of Haryana, this Court has
considered the conviction based only on confessional statement and recovery of
vehicle used in the crime. In the said case, while setting aside the conviction, this
Court has held in paragraphs 16 & 17 as under:
“16. The philosophy behind the aforesaid provision is acceptance of a
harsh reality that confessions are extorted by the police officers by
practising oppression and torture or even inducement and, therefore, they
are unworthy of any credence. The provision absolutely excludes from
evidence against the accused a confession made by him to a police officer.
This provision applies even to those confessions which are made to a
police officer who may not otherwise be acting as such. If he is a police
officer and confession was made in his presence, in whatever capacity, the
same becomes inadmissible in evidence. This is the substantive rule of law
enshrined under this provision and this strict rule has been reiterated
countlessly by this Court as well as the High Courts. 17. The word
“confession” has nowhere been defined. However, the courts have
resorted to the dictionary meaning and explained that incriminating
statements by the accused to the police suggesting the inference of the
commission of the crime would amount to confession and, therefore,

115
 inadmissible under this provision. It is also defined to mean a direct
acknowledgment of guilt and not the admission of any incriminating fact,
however grave or conclusive. Section 26 of the Evidence Act makes all
those confessions inadmissible when they are made by any person, whilst
he is in the custody of a police officer, unless such a confession is made in
the immediate presence of a Magistrate. Therefore, when a person is in
police custody, the confession made by him even to a third person, that is,
other than a police officer, shall also become inadmissible.
14. On close scrutiny of evidence on record, we are of the considered view that
prosecution has failed to prove its case, that the appellant herein, has conspired with
other accused for the offences for which he was charged. Except the alleged
confessional statements of the coaccused and in absence of any other corroborative
evidence, it is not safe to maintain the conviction and sentence imposed upon the
Appellant. The findings recorded by the Trial Court in convicting the appellant
mainly on the ground that he was one of the conspirators for the crime in question, is
erroneous and illegal. The High Court has not considered the evidence on record in
proper perspective and erroneously confirmed the conviction and sentence imposed
on the appellant

ABETMENT
According to section 107, a person abets the doing of a thing when he:
(1) Instigates a person to commit an offence; or
(2) Engages with one or more persons in a conspiracy to commit an offence; or
(3) Intentionally aids a person by any act or illegal omission to commit an offence or
illegally omits the doing of an act which would prevent the commission of the offence.

Raj Kumar vs The State Of Punjab, 1983 CriLJ 706

FACTS;
Sita Devi, married to Rajinder Kumar some five years prior to the occurrence had a
son from him, who on the date of occurrence was about six months old, It appears that
Rajinder Kumar appellant and his wife had stopped seeing eye to eye with each other
with the result that for the last 22 days, prior to the occurrence, he had stopped
returning to his house. He was employed, at the shop of Raj Kumar appellant. Sita

116
Devi held Raj Kumar to be responsible for the discord between her and her husband
and for the abnormal conduct of Rajinder Kumar of absenting from home. Her efforts
of persuading Rajinder Kumar to come back to her appear to bear no fruit. At about
8A.M. on the date of occurrence, Sita Devi deceased came to the shop of Raj Kumar
to make a final bid, at persuading Rajinder Kumar to resume normal visit to the
matrimonial home. He, however, told, her off saying that he would not come to house
and would ill treat her. Sita Devi thereafter went back to her house and returned with
a bucket of kerosene oil and again told Rajinder Kumar accused that if he would not
accede to her request of returning to her she would burn herself. Both of them are said
to have told her that she could go ahead with her plan, the same would not affect their
health, Sita Devi then and there sprinkled kerosene oil upon her body and with
matchstick set herself on fire right in front of the shop of Raj Kumar accused. Neither
of the accused is said to have made any effort to save her by extinguishing fire or
removing her to the hospital for medical aid. It was Sonan Lal P. W. 5 who happened
to be present there who removed her to Civil Hospital, Ludhiana. Dr. Tarlok Nath P.
W. 1 who had admitted the deceased in the hospital at 9.45 A.M. sent ruqa to the
police A. S. I. Jai Singh P. W. 7 who on receiving the telephonic message reached the
hospital and at 11.10 A. M. recorded the statement of the deceased in the presence and
hearing of Dr. Suresh Kumar P. W. 3, on being certified by the latter that she was in a
fit condition to make the statement. On the basis of the said statement, the case was
registered against the two accused. Sita Devi died on the same day at 3.05 P. M.
6. Mr. Harbans Singh, counsel for Rajinder Kumar, and, Mr. H. L. Sibal, counsel for
Raj Kumar, have canvassed before us that the evidence on the record even if accepted,
at its face value, makes out no offence against either of the appellants. It has been
argued on behalf of the appellants that the requisite ingredients of offence of abetment
as defined in Section 107, I.P.C. have not been established against them by the
prosecution. Elaborating the submission, it has been stressed that the appellants were
neither guilty of instigation nor of aiding in the commission of the crime either by any
act or by an illegal omission as envisaged by the provisions of Section 107, I, P. C.

7. There appears to be merit in the contention advanced on behalf of the appellants.

Section 107, I.P.C. is in the following terms:

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107. A person abets the doing of a thing who First - Instigates any person to do that
thing; or Secondly.- Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-
Intentionally aids, by any act or illegal omission, the doing of that thing.

8. Even if the evidence of the P.Ws. Sohan Lal and Sukhdev Singh is accepted at its
face value, although it is an improvement upon the dying declaration on a most
crucial and material point pertaining to the protest made by her to the accused soon
before committing suicide to the effect that if Rajinder Kumar did not comply with
the request of agreeing to return to the matrimonial home she would commit suicide
and the accused having said that she could do what she liked as that would not affect
them, it at best amounts to an omission on their part of not having tried to dissuade
her from committing suicide. The question that arises for consideration is as to
whether such omission on their part would satisfy the requirement of clause thirdly of
Section 107. I.P.C. Clause thirdly envisages not a simple omission but an illegal
omission. The omission would be illegal only if what has been omitted, to be done
was required under the law to be done by such a person. Counsel appearing for the
opposite side has failed to show any law that requires a person, whether a stranger or
a close relation, to stop a stranger or a close relation from committing a crime. If it is
to be otherwise, then, in our opinion, even most innocent persons would be found
guilty of abetment of suicide and other offences if they were unable to comply even
with the most unreasonable demand of their children or their spouse or of utter
stranger made on the point of committing suicide.

9. In a bid to pursuade us to hold otherwise, the learned Counsel for the respondents
cited to us Tejsingh v. The State ; Kinder Singh v. Emperor AIR 1933 All 160 : 34 Cri
LJ 1069 and Ramdial v. Emperor AIR 1914 All 249 : 14 Cri LJ 634.

10. All the three aforementioned cases pertain to committing of Sati. Taking the last
case first, in that case it was found as a fact that the accused, close relation of the Sati,
although to begin with were against her committing Sati, even sent a Chaukidar to
inform the police, but on the urging of the Sati they prepared the pyre on which the
widow of the deceased sat, supplied to her ghee which she poured on her person and

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also poured some ghee themselves on her person. The fire was lit which consumed the
deceased's husband and his widow. It was held therein that even if the accused were
in the beginning against the committing of Sati but eventually had aided in the act of
Sati by preparing the pyre and supplying ghee to the widow. In Inder Singh's case
(supra) head of the family of the deceased was the leader of the party that had desired
the woman to become Sati, although they ostensibly pretended that they were
preventing the widow from burning herself. In Tejsingh's case (supra) some of the
persons who had participated in the funeral procession, on the head of which
proceeded the widow of the deceased, had all along the way shouted 'Sati-Mata-Ki-
Jai' were found guilty of the offence. It was observed that although these persons did
not directly instigate the widow, but by shouting 'Sati-Mata-Ki-Jai' applauded her
decision and encouraged her to keep up her resolve, which amounted to instigation.

11. Apparently ratio of none of the aforementioned decisions is attracted to the facts
of the present case. It has, however, been urged on behalf of the respondents that the
accused by telling the deceased 'that she could do whatever she liked it did not affect
them', instigated her to commit suicide.

12. Expression 'instigate' in the Concise Oxford Dictionary is defined as 'urge on,
incite, bring about by persuasion and in Webster, it has been defined as 'urge forward,
provoke with synonyms of stimulate, urge, spur, provide tempt, incite, impel,
encourage, animate. The word 'instigate' in common parlance would mean to go, to
urge forward or to provoke, incite or encourage to do an act.

13. The retort made by the accused when the deceased threatened to commit suicide if
Rajinder Kumar did not agree to her request, did not amount to instigation by any
stretch of imagination, If such a retort is accepted to be constituting instigation, then,
to cite only one example, the parents would be guilty of abetment of suicide if even
when most unreasonable demand is made by their child, which they are not in a
position to comply with, on the threat of committing suicide and they were t0 retort
that the child could do so as they were not in a position to agree to his/her request.
The framers of the Code surely could never have intended this to happen.

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ATTEMPT

Impossible attempt
A careful reading of illustration (a) and (b) appended to section 511 shows that a
person can
be held guilty of attempting to steal some jewels from an empty jewel box or
something from an empty pocket. The crucial aspect is the belief of the person, and
the intention preceding his action to do a particular act. It does not matter that it is
after breaking open a box with the intention of stealing jewels which he believes to be
inside it, or the person who picks another’s pocket with the intention of picking (or
lifting) whatever valuable he finds inside both persons find their intentions incapable
of fulfilment.

R v Shivpuri [1986] 2 All ER 334

The appellant was arrested by customs officers while in possession of a suitcase
which he believed to contain prohibited drugs. After his arrest he told the officers that
he was dealing in prohibited drugs. However, on analysis the substance in the suitcase
was found to be not drugs but snuff or similarly harmless vegetable matter. The
appellant was charged under s 1a of the Criminal Attempts Act 1981 with attempting
to commit the offence of being knowingly concerned in dealing with and harbouring
prohibited drugs, contrary to (b)s 170(1)b of the Customs and Excise Management
Act 1979
He was convicted. He appealed, contending (i) that because the substance found in his
possession was not a prohibited drug he could not be guilty of attempting to deal in or
harbour prohibited drugs and therefore he had not done 'an act which is more than
merely preparatory to the commission of the offence', as required by s 1(1) of the
1981 Act to constitute an attempt, because commission of the actual offence was
impossible, and (ii) that the trial judge had misdirected the jury when he stated that
the appellant did not have to know precisely what the prohibited goods were, because
there were different maximum penalties attaching to the offence of possessing
prohibited drugs depending on which of the three classes of prohibited drugs created
by the Misuse of Drugs Act 1971 the drug in question fell into, and therefore it had to
be proved that the appellant knew that the drugs were of the class appropriate to the

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offence charged. The Court of Appeal dismissed his appeal. The appellant appealed to
the House of Lords.

Held – The appeal would be dismissed for the followed reasons—

(1) On the true construction of s 1(1) of the 1981 Act a person was guilty of an
attempt merely if he did an act which was more than merely preparatory to the
commission of the offence which he intended to commit, even if the facts were
such that the actual offence was impossible. Since the appellant had intended
to commit the offence of dealing with and harbouring prohibited drugs, which
was an offence to which s 1 of the 1981 Act applied, and since he had done
acts which were more than merely preparatory to the commission of the
intended offence, he had been rightly convicted

Difference between Preparation and Attempt :-

The test for finding out whether the accused was at the stage of preparation or had
indeed entered the “attempt” phase was in Malkiat Singh
Malkiat Singh & Anr vs State Of Punjab on 8 November, 1968

Equivalent citations: 1970 AIR 713, 1959 SCR (2) 663

The case of the prosecution is that on October 19, 1961 Sub Inspector Banarasi Lal of
Food and Supplies Department' was present at Smalkha Barrier along with Head
Constable Badan Singh and others. The appellant Malkiat Singh then came driving
truck no. P.N.U. 967. Babu Singh was the cleaner of that truck. The truck carried 75
bags of paddy weighing about 140 maunds. As the export of paddy was contrary to
law, the Sub Inspector took into possession the truck as also the bags of paddy. It is
alleged that the consignment of paddy was booked from Lakerkotla on October 18,
1961 by Qimat Rai on behalf of Messrs Sawan Ram Chiranji Lal. The consignee of
the paddy was Messrs Devi Dayal Brij Lal of Delhi. It is alleged that Qimat Rai also
gave a letter, Ex. P-3 addressed to the consignee Sawan Ram and Chiranji Lal were
partners of Messrs. Sawan Ram Chiranji Lal and they were also prosecuted. In the
trial; court Malkiat Singh admitted that he was driving the truck which' was loaded
with 75 bags of paddy and the truck was intercepted at Samalkha Barrier. According

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to Mallfiat Singh, he was given the paddy by the Transport Company at Malerkotla
for being transported to Delhi. The Transport Company also gave him a letter assuring
him that it was an authority for transporting the paddy. But it later transpired that it
was a personal letter from' Qimat Rai to the Commission agents at Delhi and that it
was not a letter of authority. Babu Singh admitted that he was sitting in the truck as a
cleaner. The trial court convicted all the accused' persons, but on appeal the
Additional Sessions Judge set aside the conviction of Sawan Ram and Chiranji Lal
and affirmed the conviction of Qimat Rai and of the two appellants. The appellants
took the matter in revision to the High Court but the revision petition was dismissed
on November 4, 1965.
The question to be considered in this appeal is whether upon the facts found by the
lower courts any offence has been committed by the appellants. It is not disputed that
the truck carrying the paddy was stopped at Samalkha Barrier which is 32 miles from
Delhi. It is also not disputed that the Delhi-Punjab boundary was, at the relevant point
of time, at about the 18th mile from Delhi. It is therefore evident that there has been
no export of paddy outside the State of Punjab in this case. The truck with the loaded
paddy was seized at Samalkha well inside the Punjab boundary. It follows therefore
that there was no export of paddy within the meaning of Para 2(a) of the Punjab
Paddy (Export Control) Order, 1959. It was however argued on behalf of the
respondent that there was an attempt on the part of the appellants to transport paddy to
Delhi, 'and so there was an attempt to commit the offence of export. In our opinion,
there is no substance in this argument. On the facts found, there was no attempt on the
part of the appellants to commit the offence of export. It was merely a preparation on
the part of the appellants and as a matter of law a preparation for committing an
offence is different from attempt to commit it. The preparation consists in devising or
arranging the means or measures necessary for the commission of the offence. On the
other hand, an attempt to commit the offence is a direct movement towards the
commission after preparations are made. In order that a person may be convicted of
an attempt to commit 'a crime, he must be shown first to have had an intention to
commit the offence, and secondly to have done an act which constitutes the actus reus
of a criminal attempt. The sufficiency of the actus reus is a question of law which had
led to difficulty because of the necessity of distinguishing between acts which are
merely preparatory to the commission of a crime, and those which are sufficiently
proximate to it to amount to an attempt to commit it. If a man buys a box of matches,

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he cannot be convicted of attempted ,arson, however clearly it may be proved that he
intended to set fire to a haystack at the time of the purchase. Nor can he be convicted
of this offence if he approaches the stack with the matches in his pocket, but, if he
bends down near the stack and lights a match which he extinguishes on perceiving
that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen,
in his Digest of Criminal Law, art. 50, defines an attempt as follows:

"'an act done with intent to commit that crime, and forming part of a series of acts
which would constitute its actual commission if it were not interrupted. The point at
which such a series of acts begins cannot be defined, but depends upon the
circumstances of each particular case."
The test for determining whether the act of the appellants constituted an attempt or
preparation is whether the overt acts already done are such that if the offender
changes his mind and does not proceed further in its progress, the acts already done
would be completely harmless. In the present case it is quite possible that the
appellants may have been warned that they had no licence to carry the paddy and they
may have changed their mind at any place between Samalkha Barrier and the Delhi-
Punjab boundary and not have proceeded further in their journey. Section 8 of the
Essential Commodities Act states that "any person who attempts to contravene, or
abets a contravention of, any order made under section 3 shall be deemed to have
contravened that order". But there is no provision in the Act which makes a
preparation to commit an offence punishable. It follows therefore that the appellants
should not have been convicted under s. 7 of the Essential Commodities Act.

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