Crimes Case Briefs: Sahil Bansal

CRIMES CASE BRIEFS
Sahil Bansal
Sahil Bansal (20161374)
Table of Contents
1. In Re: Sreerangayee v. Respondent (1973)1MLJ231 ....................................................... 4
2. Virsa Singh v. State of Punjab (AIR 1958 SC 465):.............................................................. 5
3. Gudar Dusadh v. State of Bihar (AIR 1972 SC 952) ............................................................ 6
4. Emperor v. Mt. Dhirajia ILR (1940) All. 647 : ..................................................................... 7
5. Gyarsibai v. State AIR (1953 CrLJ 558) : ............................................................................ 8
6. Cherubin Gregory v. State of Bihar (AIR 1964 SC 205): ..................................................... 9
7. KM Nanavati v. State of Maharashtra (AIR 1962 SC 605) ................................................ 10
8. B.D. Khunte v. Union of India and others (2015) 1 SCC 286 ........................................... 12
9. Muthu v. State (2007) 12 SCALE 795 .............................................................................. 14
10. Dr. Suresh Gupta v. State of NCT (2004) 6 SCC 422 ...................................................... 15
11. Varadarajan v. state of Madras, (1965) AIR 942 ............................................................ 15
12. R. v. Ahluwalia (1993) 96 Cr App Reports 133............................................................... 16
13. Vishwanath v. State of U.P. (AIR 1960 SC 67) ................................................................... 18
14. Amjad Khan v. State (AIR 1952 SC 165) ........................................................................... 19
15. R v. Dudley and Stephen 14 Q.B.D. 273 (1884)................................................................ 19
16. Rao Harnarayan Singh v. State AIR 1958 P & H 123........................................................ 20
17. Tukaram v. State of Maharashtra (1979) 2 SCC 143 ....................................................... 20
18. Open Lettter to CJI (1979) 4 SCC (J) 17 ......................................................................... 22
19. Govt. of NCT of Delhi v. Mahmood Farooqui (2016) ..................................................... 24
20. Rahul Mookerji vs. State (NCT) of Delhi CRL.M.C. 283 of 2009 .................................... 27
21. Ranjit D. Udeshi vs State Of Maharashtra AIR 1965 SC 881 ............................................ 28
22. Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257 ............................................... 29
23. Suresh Kumar Koushal & Anr vs Naz Foundation & Ors (2013) ...................................... 31
24. Yusuf Abdul Aziz v. State (AIR 1951 SC 321) ................................................................. 32
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25. Sowmithri Vishnu v. Union of India (AIR 1985 SC 1618) ................................................ 33
26. Priya Patel v. State of M.P. (2006 CrLJ 3627) .................................................................... 33
27. Barendra Kumar Ghosh v. Emperor (AIR 1925 PC 1) ....................................................... 34
28. Mahboob Shaw v. Emperor (AIR 1945 PC 118) ............................................................... 35
29. Mathew v. State of Travancore-Cochin (AIR 1956 SC 241) ............................................... 37
30. Anderton v. Ryan (1985 AC 560) House of Lords ............................................................. 38
31. R. v. Shivpuri (1987 AC 1) House of Lords ....................................................................... 40
32. Emperor v. Asgar Ali Pradhania (AIR 1933 Cal. 833) ....................................................... 41
33. State of Maharashtra v Mhd. Yakub (1980) SCR (2) 1158 ................................................. 42
34. Abhayanand Mishra vs The State Of Bihar AIR 1961 SC 1698 ........................................... 43
35. R. v. Robinson [1952] 2 All ER 334 ................................................................................... 45
36. K.N. Mehra v. State (AIR 1957 SC 369) .......................................................................... 46
37. Pyare Lal Bhargava vs State of Rajasthan AIR 1963 SC 1094 .......................................... 47
38. R. v. Velumyl [1989] CLR 299 ........................................................................................ 47
39. Bachan Singh vs State of Punjab 1983 1 SCR 145 ........................................................... 48
40. Machhi Singh And Others vs State of Punjab 1983 SCR (3) 413 ..................................... 49
41. Furman v. Georgia (1972) 408 U.S. 238 (1972) .............................................................. 51
42. Gregg v. Georgia (1976) 428 U.S. 153 (1976) ............................................................... 53
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WEEK III, IV & V

OFFENCES AGAINST HUMAN BODY
In Re: Sreerangayee v. Respondent (1973)1MLJ231
The appellant lady is charged with the charge of murdering five children under sec. 302 and for attempt to commit
suicide under sec. 309.
The appellant and her husband used to live in a rented house. Husband’s earning was extremely low and he also and
an affair with a lady called Parvathi, who also lived along with him in the house. The accused’s husband was so poor
that he cannot even pay the rent of the house. So he got some money by pledging some home articles. On the day of
occurrence he left the house in the morning around 7:30 and he also that day gave his son 9 rupees that were to be
given to the carpenter or his brother. The boy gave the brother.
At about 10 or 11 a.m. that day women were crying that a woman had fallen into the well.
She was in an unconscious condition. She was taken to her house and placed in front of her house. The accused
regained consciousness sometime later and when she was questioned as to why she fell into the well, she said that
she had murdered her children by administering poison to them and that the children were inside her house. The
house was broken open and they saw the five children of the accused lying dead inside. The accused admitted her
offence. She stated that she did so because of poverty. In spite of the admission of guilt by the accused, the learned
Sessions Judge recorded the evidence, as he felt that it was his duty to consider all the evidence in the light of the
arguments advanced by the learned Counsel on both sides before coming to a definite conclusion. The confessional
statement, which was admitted by her in the Court of Session, was corroborated by the medical testimony of all the
Doctors who conducted the post-mortem examination on the bodies of the deceased, children which clearly
established that the death of the deceased children was due to forcible immersion of the children, into a tub
containing water. On the question of sentence the learned Sessions Judge directed the accused to undergo
imprisonment for life under Section 302, Indian Penal Code, under charge No. 3 in respect of murder of each of her
children and also sentenced the accused to undergo simple imprisonment for one year under Section 309. The
present court said that:
“Even in the grounds of appeal to this Court she admits commission of the offence, but pleads justification on ground
of poverty. We are of opinion that poverty cannot justify commission of grave offences. We have, therefore, no
hesitation in coming to the conclusion that the accused committed the grave crime of murdering five of her children
and we agree with the learned Sessions Judge on the sentences imposed on the accused viz., the imprisonment for
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life in respect of each of the murders committed by her, as also the simple imprisonment for one year under Section
309, Indian Penal Code, under charge No. 6 and that the sentences should run concurrently ... We can only take these
circumstances into account in inflicting the punishment and seeking to reform her as a useful member of society. The
government have also as a policy provided for detention of such females convicted of infanticide and we propose to
adopt such a course. In the circumstances of the case we recommend to the Government for commuting the sentence
of life imprisonment imposed on the accused for an offence under Section 302, Indian Penal Code and, in
supersession of the recommendation made by the Sessions Judge to substitute an imprisonment for a period of one
year, the said period of one year being in lieu of the sentences passed on her both under Sections 302 and 309,
Indian Penal Code.”
Virsa Singh v. State of Punjab (AIR 1958 SC 465):
The appellant Virsa Singh has been sentenced to imprisonment for life under s. 302 of the Indian Penal Code for the
murder of one Khem Singh. There was only one injury on Khem Singh and both Courts are agreed that the appellant
caused it. It was caused as the result of a spear thrusted and the doctor who examined Khem Singh, while he was still
alive, said that…three coils of intestines were coming out of the wound." The incident occurred about 8 p.m. on July 13,
1955. Khem Singh died about 5 p.m. the following day.
The doctor [in his report] said that the injury was sufficient to cause death in the ordinary course of nature. The
Sessions court said that virsa singh as a part of the assembly’s common object only wanted to inflict bodily injury but
he ended up killing him. So he was convicted in Sessions court under sec. 300(3) and punished under Sec. 302.
300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or—
3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
302. Punishment for murder.—whoever commits murder shall be punished with death or
1[imprisonment for life], and shall also be liable to fine.
The decision of the Sessions court was challenged on the ground of lack of intention. It was argued on part of virsa
singh that it sall not be enough to prove that whatever he did was something that he was intending to do because
according to clause 3 of sec. 300 it is said that the intention should be to inflict bodily harm that can cause death and
not just the one that can eventually be discovered to be fatal. The court’s said:
“The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the
intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a
blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the
heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that
region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is
proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we
are now examining - "and the bodily injury intended to be inflicted" is merely descriptive. All it means is that it is not
enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it
must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found
to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary
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course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has
nothing to be with the question of intention.
In considering whether the intention was to inflict the injury found to have been inflicted, the inquiry necessarily
proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous sport, and
whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to
enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether
he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy
could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to
have intended to injure them.”
The court said that all you need to prove to get the case under Sec.300(3) is the bodily injury, nature of the injury,
intention to commit that bodily injury and not the other one and that the injury was sufficient to cause death in the
ordinary course of nature. The court said all that a person may plead his/her innocence under is accidental or
unintentional nature of the act. It is true that in a given case the enquiry may be linked up with the seriousness of the
injury. For example, if it can be proved, or if the totality of the circumstances justifies an inference, that the prisoner
only intended a superficial scratch and that by accident this victim stumbled and fell on the sword or spear that was
used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he
intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question
at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one
of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in
aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful
conjecture.
Appeal Dismissed.
Gudar Dusadh v. State of Bihar (AIR 1972 SC 952)
The appellant was convicted under sections 302 and 147 Indian Penal Code and was sentenced to undergo
imprisonment for life on the former count…The appellant thereupon came up in appeal to this Court by special leave.
The, leave was, however, confined only to the question whether the offence committed by the appellant was murder
or culpable homicide not amounting to murder.
Ramlal and his son were both coming back from their paddy field and on their way back they were assaulted by six
men who were hiding in the bushes during this assault Ramlal died and his son suffered injuries. Ramlal had advised
a person from his village to file a complaint with the police about his goat being killed by two men a day before
Ramlal himself was attacked. The appellant gave a lathi blow on Ramlal’s head as result of which he died, one of the
gang members shouted the reason for Ramlal’s assault i.e. him being the reason why the guy whose goat was killed a
day before started proceedings against the men who killed the goat. The accused then set fire to one of their huts
with a view to prepare some kind of defence. After that the accused fled away. The two lower courts had convicted
the appellant under sec. 300(3) and punished him under 302 because he was the one who gave the lathi blow.
Death, in the opinion of the doctor, was due to compression on the left side of the brain. The doctor further stated that
the above injury was sufficient in the ordinary course of nature to cause death.
“The appellant who caused the above injury to Ramlal deceased, in our opinion, was guilty of the offence of murder
and he has been rightly convicted under section 302 Indian Penal Code.”
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It has also been found by the high court that there was no altercation or exchange of abuses between Ramlal and the
accused party. The circumstances of the case thus show that the assault was premeditated and the blow on the head
of Ramlal was not accidental.
APPEAL DISMISSED
Emperor v. Mt. Dhirajia ILR (1940) All. 647 :
“The appellant is a young woman of 20 who was tried for murder…and…was tried at the same time for attempted
suicide. The result of the trial by the Sessions Judge…was that he convicted the appellant of murder under Section
302, IPC. The result of the trial for attempted suicide by the jury was that she was found not guilty. The learned Judge,
as logically he was bound to do, was unable to agree with the verdict of not guilty upon the charge of attempted
suicide and he has therefore referred the case to us with the recommendation that the jury’s verdict should be set
aside and that the appellant should be convicted under Section 309, I.P.C., as well as under Section 302. In this way
we have before us the appellant’s own appeal against her conviction and sentence under Section 302, IPC, and the
learned Sessions Judge’s reference recommending us to set aside the verdict of the jury and to substitute a conviction
upon the charge of attempted suicide as well.”
Appellant had a six month baby. She was not treated well by her husband. On the day of occurring the husband had
threatened the wife to beat her. The appellant and the baby went missing when the husband woke up at night and he
then went out in search of them he saw the lady making her way along the railway lines. When she got to know that
her husband was following her she panicked and she either jumped or fell into an open well. The child died while the
woman was rescued.
On being asked if she jumped into the well she said that yes out of fear of her husband she jumped into the well. She
eventually changed her statement to accidently falling into the well over the course of hearings of the case in diff.
Courts.
“To take first the charge of murder, as we all know, according to the scheme of the Penal Code, ‘Murder’ is merely a
particular form of culpable homicide, and one has to look first to see in every murder case whether there was
culpable homicide at all. If culpable homicide is present then the next thing to consider is whether it is of that type
which under Section 300, Penal Code, is designated ‘murder’ or whether it falls within the residue of cases which are
covered by Section 304 and are designated ‘culpable homicide not amounting to murder.’ In order to ascertain
whether the case is one of culpable homicide we have to look at Section 299, Penal Code, which says”:
“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.”
Given how panicked she was there cannot be intention in her mind to kill the baby. But what the court has to look for
is whether she had the knowledge that whatever she was about to do would lead to the death of the child. The lady’s
case was argued by the same lawyer who was representing the government here.
“The way he puts it is that we must treat this woman as being in such a state of mind that not only could she have had
no ‘intention’ but she could have had no knowledge either. We regret that we are unable to go as far as this.
‘Intention’ appears to us to be one thing and ‘knowledge’ appears to us to be a different thing. In order to possess
and to form an intention there must be a capacity for reason. And when by some extraneous force the capacity for
reason has been ousted, it seems to us that the capacity to form an intention must have been unseated too. But to our
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minds, knowledge stands upon a different footing. Some degree of knowledge must, we think, be attributed to every
sane person.”
For these reasons the court declared t to be a case of culpable homicide.
After coming to this conclusion the court further went on to find if the act can be termed as murder. Clause 1-3 of Sec.
300 pose a requirement of intention for an act to fall in their ambit but here since there is no intention so the court just
looked at the clause 4 of Sec. 300.
“If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or
such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing
death or such injury as aforesaid.”
It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it must in all
probability cause death. In order that an act done with such knowledge should constitute murder it is necessary that
it should be committed without any excuse for incurring the risk of causing the death or bodily injury.
According to the facts of the case it cannot be said that the lady jumped into the well withput excuse. She feared her
husband and she had reason to fear her husband. She was endeavouring to escape from him at dawn and in the panic
into which she was thrown when she saw him behind her she jumped into the well. For these reasons she was not
held guilty of murder.
“Upon this reasoning, however, we cannot escape from Section 304. It must inevitably follow, for reasons which are
obvious, that Mt. Dhirajia is guilty of culpable homicide not amounting to murder and that, in our judgment, is the
charge upon which she should have been convicted and not upon the charge of murder.”
As far as the charges for the suicide attempt were concerned the court agreed with her acquittal because she did not
have intention to kill herself.
Gyarsibai v. State AIR (1953 CrLJ 558) :
The appellant has been convicted of an offence under Section 302, Penal Code, for the murder of her three children
and also of an offence under Section 309, Penal Code, for an attempt to commit suicide. She has been sentenced to
transportation for life under Section 302, Penal Code, and to six months’ simple imprisonment under Section 309,
Penal Code. Both these sentences have been directed to run concurrently. She has now preferred this appeal from jail
against the convictions and sentences.
The facts of this case are very simple. The prosecution alleged that the appellant, her children, her husband
Jagannath and her sister-in-law used to reside together. There were constant quarrels between the appellant and her
sister-in-law and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law. One
such quarrel took place on the day o the occurring in the absence of the husband. Appellant left the house saying
that she shall along with her three children jump into a well. A few hours after, some inhabitants of the village found
Gyarasibai supporting herself on an edge of the well and the three children dead in the well. The appellant admitted
before the Committing Magistrate as well as before the Sessions Judge that she jumped into the well together with
her children on account of her sister-in-law Kaisar Bai's harassment. The question before the court was now to decide
if the act of Giyarsibai will amount to murder. The court said that it is well clear from the facts of the case that the lady
jumped into the well for the reason of suicide and hence her case shall fall under Sec 300(4). But still the court said
that for an act to be murder under this provision it should be committed without any reasonable excuse.
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The court said that it is very clear from the facts that atleast she had the knowledge that the act that she was going to
do was capable of causing death of her children. The judge further said that there wasn’t any reasonable excuse for
the appellant to do what she did moreover family quarrels cannot be regarded as an excuse.
“Appellant has been sentenced to transportation for life under Section 302, Penal Code. This is the only sentence
which could legally be passed in this case. But having regard to the facts and circumstances of the case and also to
the fact that the appellant, though not legally insane, was not and could not be in a normal state of mind when she
jumped into a well with her three children, I think this is not a case deserving of a severe punishment. I would,
therefore, recommend to the Government to commute the sentence of transportation for life to one of three years’
rigorous imprisonment. The sentence of six months' simple imprisonment awarded to the appellant for the offence
under Section 309 is appropriate.”
APPEAL DISMISSED
Cherubin Gregory v. State of Bihar (AIR 1964 SC 205):
This is an appeal by special leave against the judgment of the high court of Patna dismissing an appeal by the
appellant against his conviction and the sentence passed on him by the Sessions Judge.
The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making
such ingress dangerous (1) the accused fixed up a copper wire across the passage leading up to his latrine, (2) that
this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was
connected, (3) there was no warning that the wire was live, (4) the deceased managed to pass into the latrine without
contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which
she died soon after. On these facts the Courts below held that the accused was guilty of an offence under s. 304-A of
the Indian Penal Code which enacts:
304-A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide
shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with
both."
The accused said that there was enough notice put up regarding the live wire by the way o daylight and the electric
light burning nearby. But the court did not regard this as a perfect signalling.
“The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the
accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury
inflicted and that if the act of the accused was not a tort, it could not also be a crime. There is no substance in this line
of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the
ingredients of a crime and the defences open to an accused charged with any of the offences there set out we
consider that it would not be proper or justifiable to permit the invocation of some common law principle outside that
Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful
act.”
“The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him
personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing
something on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus in
England it has been held that one who sets spring guns to shoot at trespassers is guilty of a tort and that the person
injured is entitled to recover. The laying of such a trap, and there is little difference between the spring-gun which
was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth ‘an
arrangement to shoot a man without personally firing a shot’.”
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“"The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm
or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is
likely to be on his premises. For example, he must not set man-traps or spring guns. This is no more than ordinary
civilised behaviour." Judged in the light of these tests, it is clear that the point urged is wholly without merit”
APPEAL DISMISSED.
KM Nanavati v. State of Maharashtra (AIR 1962 SC 605)

This appeal by special leave arises out of the judgment of the Bombay High Court sentencing Nanavati, the appellant,
to life imprisonment for the murder of Prem Bhagwandas Ahuja, a businessman of Bombay.
Here the appellant killed his wife’s paramour. The case was being heard in the Bombay HC first, there the jury
agreed in majority to not convict the accused but the judge did not agree with the decision of the jury. The case was
decided by HC judges thereby sentencing the accused under Sec. 302 of IPC to a rigorous imprisonment for life.
Nanavati owing to his job frequently had to go away from the city and behind his back his wife (Sylvia) entered into
an illicit relationship with Prem Ahuja. When Nanavati got to know of this he went to his ship, took from the stores of
the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja,
entered his bed-room and shot him dead. Thereafter, the accused surrendered himself to the police. He was put
under arrest and in due course he was committed to the sessions for facing a charge under Section 302 of the Indian
Penal Code.
The account of facts as posed by the defence is that when he got to know about the wife’s illicit relationship from her
at home, he took wife along with children and a neighbour’s child to cinema, then he went to ship to get his dog’s
meds. From the ship authorities he got issued a revolver with six cartridges on the pretext that he shall be travelling
to Ahmednagar alone at night, but the real purpose was to shoot him. The accused then went to Ahuja’s place there
inside Ahuja’s bed room ther happened an altercation between the two and the paramour refused to marry Sylvia.
The accused then drew the revolver out the envelop in which he was carrying it. A struggle ensued between the two
and finally two shots were accidentl fired from the revolver which hit Ahuja and he died.
Amongst the other contention raised the defence also said that the act committed by Nanavati was a result of grave
and sudden provocation and hence shall not be regarded as murder but culpable homicide not amounting to murder.
The fact scenario that the court relied on was:
The deceased seduced the wife of the accused. She had confessed to him of her illicit intimacy with the deceased. It
was natural that the accused was enraged at the conduct of the deceased and had, therefore, sufficient motive to do
away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of
Ahuja, entered his bed-room unceremoniously with a loaded revolver in hand and in about a few seconds thereafter
came out with the revolver in his hand. The deceased was found dead in his bath-room with bullet injuries on his
body. It is not disputed that the bullets that caused injuries to Ahuja emanated from the revolver that was in the hand
of the accused. After the shooting, till his trial in the Sessions Court, he did not tell anybody that he shot the deceased
by accident. Indeed, he confessed his guilt to the chowkidar Puran Singh and practically admitted the same to his
college Samuel. His description of the struggle in the bath-room is highly artificial and is devoid of all necessary
particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and the main
injuries are wholly inconsistent with accidental shooting when the victim and the assailant were in close grips. The
other circumstances brought out in the evidence also establish that there could not have been any fight or struggle
between the accused and the deceased.
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The court therefore agreed with the judgement of HC. Therefore section 80 of IPC cannot apply as defence for the act
of the accused:
80. Accident in doing a lawful act— Nothing is an offence which is done by accident or misfortune, and without any
criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care
and caution.
The court also agreed with the HC in saying that the jury has given a wrong judgement.
As far as the question of grave and sudden provocation is concerned the following points are to be looked at:
“Homicide is the killing of a human being by another. Under this exception, culpable homicide is not murder if the
following conditions are complied with: (1) The deceased must have given provocation to the accused. (2) The
provocation must be grave. (3) The provocation must be sudden. (4) The offender, by reason of the said provocation,
shall have been deprived of his power of self-control. (5) He should have killed the deceased during the continuance
of the deprivation of the power of self-control. (6) The offender must have caused the death of the person who gave
the provocation or that of any other person by mistake or accident.”
In this case the attorney general said that even if we regard the provocation to be grave still it cannot be said to be
sudden given the amount of time that had elapsed.
The court said that the act did not fal under the exception 1 of sec. 300. The question that the Court has to consider is
whether a reasonable person placed in the same position as the accused was, would have reacted to the confession of
adultery by his wife in the manner in which the accused did. The judge cited Viscount Simon L.C. who said that the
loss of self-control was essential to apply the exception of grave and sudden provocation. In applying the test, it is of
particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a
reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to
retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a
deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to
the provocation if the offence is to be reduced to manslaughter. Viscount Simon again in 1946 AC 588 at p. 598
elaborates further on this theme. There, the appellant had entertained some suspicions of his wife's conduct with
regard to other men in the village. On a Saturday night there was a quarrel between them when she said, "Well, if it
will ease your mind, I have been untrue to you", and she went on, "I know I have done wrong, but I have no proof that
you haven't-at Mrs. X’s". With this the appellant lost temper and picked up the hammerhead and struck her with the
same on the side of the head. As he did not like to see her lie there and suffer, he just put both hands round her neck
until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the
offence of murder to manslaughter. Viscount Simon L.C. again said that the self control should be lost to an extent that
the malice that in the first place made the intention to commit the crime should be negatived.
Circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough.
where a woman was leading a notoriously immoral life, and on the previous night mysteriously disappeared from the
bedside of her husband and the husband protested against her conduct she vulgarly abused him, whereupon the
husband lost his self-control, picked up a rough stick, which happened to be close by and struck her resulting in her
death, the Lahore High Court, in Jan Muhammad v. Emperor [AIR 1929
Lah 861, 862-863] held that the case was governed by the said exception.
A division bench of the Allahabad High Court in Emperor v. Balku [AIR 1938 All 532, 533-534] invoked the exception
in a case where the accused and the deceased, who was his wife's sister's husband, were sleeping on the same cot,
and in the night the accused saw the deceased getting up from the cot and going to another room and having sexual
intercourse with his (accused's) wife, and the accused allowed the deceased to return to the cot, but after the
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deceased fell asleep, he stabbed him to death. The learned Judges held: When Budhu (the deceased) came into
intimate contact with the accused by lying beside him on the charpai this must have worked further on the mind of the
accused and he must have reflected that 'this man now lying beside me had been dishonouring me a few minutes
ago'. Under these circumstances we think that the provocation would be both grave and sudden.
Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No
abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances
depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional
background of the society to which an accused belongs.
When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will
assume that he had momentarily lost his self-control. But, if his version is true-for the purpose of this argument we
shall accept that what he has said is true-it shows that he was only thinking of the future of his wife and children and
also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had
not only regained his self-control, but, on the other hand, was planning for the future. Then he drove his wife and
children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did
some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room
of Ahuja and shot him dead. His conduct clearly shows that the murder was a deliberate and calculated one. Even if
any conversation took place between the accused and the deceased in the manner described by the accused-though
we do not believe that-it does not affect the question, for the accused entered the bed-room of the deceased to shoot
him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally
abusive reply could not conceivably be a provocation for the murder. Hence accused shall be punished under Sec.
302.
APPEAL DISMISSED.
B.D. Khunte v. Union of India and others (2015) 1 SCC 286
FACTS:
•Deceased (Randhir Singh) came drunk to Appellant’s barrack after lunch at 2:30 pm and slapped him twice &
asked the appellant to follow him.
• He took the Appellant to store house & bolted the door and asked him to remove his Pants with an intention to
sodomize him.
• Appellant declined, the deceased punched and kicked him.
• The deceased then made improper advances towards appellant’s body.
• Appellant somehow managed to free himself after half hour torture.
• Went back to his barrack, shaken and crying inconsolably.
• No formal report was lodged by the Appellant. He indeed shared his grief with his colleagues and senior
officers that the deceased had beaten him up and had asked him to open his pants.
• Senior officers pacified him and advised him to remain calm.
• Appellant further planned to gather near the water heating point with his colleagues to beat up the deceased.
• He takes the night guard duty after dinner – At around 9:30 pm, seeing the deceased advancing towards the
point - still seething in anger – appellant open fired upon him.
• Deceased was hit and dropped dead on the spot.
Arguments in the favour of Appellant:
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• The day-time incident had deeply shaken the Appellant.

• He was gravely and suddenly provoked when he saw Sub. Randhir Singh approaching to the picket when he
was on duty.
• Although there was a time gap – but we need keep in mind the nature of the act done by Randhir Singh and its
effect on the appellant. Provocation came from a superior who took undue advantage of his situation.
• That Appellant’s case was within Exception 1 to Sec. 300 of the IPC.
Prosecution’s Arguments:
• The tests laid down by this Court – whether the deceased has given any provocation to the accused - it being
sudden and sufficiently grave - had all failed.
• The appellant at the time of the assault appears to have borne it without any retaliation against the deceased
superior and hence, the critical moment when perhaps he could have lost his self-control and retaliated was
thus allowed to pass uneventfully.
• There was no evidence proving that after the incident the appellant had suffered a prolonged spell of grave
provocation.
• The Appellant attended his normal duty during the daytime and after dinner, went to perform his guard duty
at around 9pm.
Main Issues:
• Whether the appellant was entitled to the benefit of Exception 1 of Section 300 IPC?
• Could the assault mitigate the murder that took place?
Findings
• Appellant was humiliated - but no evidence, on the appellant’s case that the deceased had actually
sodomized him.
• The argument that the incident that took place around noon on the day was grave provocation for the offence
committed at night – does not hold good because the accused-appellant had already settled for a lesser act of
retaliation wherein he was to beat him up the deceased with his colleagues.
• Any memory of a past event does not qualify as a grave and sudden provocation for the purpose of mitigating
an offence.
• In the case of Mancini V. Director of Public Prosecutions, the test to be applied is the impact of the provocation
on a reasonable man.
• The fact that the daytime incident being of such a nature that it would be grave provocation the moment the
appellant saw the deceased walking towards him – also does not hold good because, it does not show that the
deceased would have done a fresh act or would have tried to do anything of such nature because according
to the appellant’s case he gave him a halt as is taught in the service and then shot him only after he did not
stop which shows that he wasn’t in close proximity to the appellant to be able to do something that would
further harm him.
RULE
• Exception 1 to Section 300 of the IPC

What is critical for a case to fall under Exception 1 of Section 300 IPC is that the provocation was - not only be grave
but sudden as well.
Satisfaction of the elements of this section can mitigate the offence committed by the accused from murder to
culpable homicide not amounting to murder :
• The deceased must have given provocation to the accused.
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• The provocation so given must have been grave.

• must be sudden
• the offender must because of such provocation be deprived of his power of self-control
• the offender must have killed the deceased or any other person by mistake or accident during the
continuance of his power of self-control.
Court
Applying the rule, Appeal was dismissed –
• Appellant had settled for lesser act of retaliation – Beating

• Grave provocation – momentary loss of one’s capacity to differentiate between right and wrong.
(Holmes v. Director; K.M. Nanvati v. State of Maharashtra)
• Here, such anger would only constitute a motive for taking revenge. Therefore could not be grave and
sudden provocation.
Convicted u/s 302 of the IPC
Muthu v. State (2007) 12 SCALE 795
This appeal has been filed against the final judgment and order of a Division Bench of the Madras High Court. The
deceased threw a bunch of garbage and waste cardboard that he threw inside the appellants shop and the accused
was extremely angered by this and in this fit of rage he drew a knife lying nearby and stabbed the deceased in the
chest which led to his death. The Sessions court and HC convicted the accused under Sec. 302.
“We are of the opinion that the case comes under Exception I to Section 300 IPC which states as under:
Exception -When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of
the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
We are satisfied that the accused was deprived of the power of self- control by grave and sudden provocation which
led him to commit the offence. If rubbish is thrown into one's house or shop one would naturally get very upset. It is
evident that the accused had no motive or intention to cause the death of the deceased since the accused was not
carrying the knife from before, and only picked it up during the scuffle with the deceased.”
Intention to cause death is to be gathered from several circumstances, and one of the circumstances mentioned in the
said paragraph is whether the weapon was carried by the accused or was picked up from the spot. If it was carried
by the accused right from the beginning that may be a circumstance to indicate that there was an intention to cause
death if it was used for attacking the deceased on a vital part of the body. However, when the weapon was not initially
in the hand of the accused, but was picked up from the spot during the altercation, then it cannot be said that it is a
case under Section 302 IPC, rather it is only a case of culpable homicide not amounting to murder which comes under
Section 304 IPC and not under Section 302 IPC.
“In our opinion on the facts of the case the act committed was done with the knowledge it is likely to cause death but
without any intention to cause death or cause such bodily injury as is likely to cause death. Hence the offence comes
under the Part II of Section 304 IPC.
For the reasons given above, the sentence awarded by the courts below is substituted by the sentence of five years'
simple imprisonment and any period of incarceration in jail which the
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accused has already undergone shall be deducted from the aforesaid period of five years. The judgments of the
courts below are modified accordingly and the appeal stands disposed of.”
Dr. Suresh Gupta v. State of NCT (2004) 6 SCC 422

The appellant who is a Doctor (Plastic Surgeon) is in the dock as an accused on the charge under Section 304A of the
Indian Penal Code [for short the 'IPC'] for causing death of his patient. The patient was operated by him for removing
his nasal deformity. The advocate representing the doctor said that it would be in the larger interest of the medical
profession if the doctor is acquitted.
“We have also heard learned senior counsel Shri Harish Chandra for the prosecution, who supported the view taken
by the Magistrate and the High Court that the surgeon was guilty of gross negligence in giving an incision at the
wrong place and did not take necessary precautions in the course of surgical operation to prevent seepage of blood
down the respiratory passage of the patient and the resultant death by asphyxia.”
304A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not
amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extent
to two years, or with fine, or with both.
From the post-mortem report and the opinion of the three medical experts of the medical team specially constituted,
the case of the prosecution laid against the surgeon is that there was negligence in 'not putting a cuffed endoW-
tracheal tube of proper size' and in a manner so as to prevent aspiration of blood blocking respiratory passage.
For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so
high as can be described as "gross negligence" or “recklessness".
This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment
given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed
to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in
prison for alleged criminal negligence.
From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed
endoW-tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This
act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due
care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention
and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.
“As a result of the discussion aforesaid on the factual and legal aspect, we allow this appeal and by setting aside the
impugned orders of the Magistrate and of the High Court, quash the criminal proceedings pending against the
present doctor who is accused and appellant before us.”
Varadarajan v. state of Madras, (1965) AIR 942
ISSUE: Whether Vardarajan is liable for the offence of kidnapping? Did he do anything to entice the minor
away from the lawful guardian?
S. Natarajan was an Assistant Secretary to the Government of Madras in the Department of Industries and Co-
operation. Savitri was his third daughter. Savitri became friend with the appellant S. Vardarajan, who was residing in
a house next door to that of S. Natarajan. Savitri was a student of the second year B.Sc. in Yathi Raj College. Savitri
was born on 13-11-1942. As a result of their friendship, every evening both of them used to meet and as a result of this
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Savitri developed a liking for the appellant. On 30-9-1960, the love affair between Savitri and Vardarajan came to
know to S. Natarajan. On the same day, S. Natarajan took his daughter Savitri to Kodambakkam and left her at the
house of a relative K. Natarajan with an intention to separate the lovers. On the next day, i.e., on 1-10-1960, Savitri left
the house of K. Natarajan at 10.00 a.m. and from a booth, telephoned to S. Vardarajan to meet at a certain place.
Vardarajan came there in a car. Both of them went to the Registrar’s office with two witnesses and registered their
marriage. From there both of them went to Sirukulam and stayed there for twelve days. On 16-10-1960, the police
arrested them at Tanjore. The lower Court convicted S. Vardarajan under Section 361. The High Court confirmed the
conviction. The Supreme Court acquitted the accused from the charges of Sec. 361. The Supreme Court considered
the age of the girl who was studying B.Sc. and was 15 days/one month less than 18. Further the Court opined that the
accused had not taken active steps but the girl herself has taken active actions. The accused had no ill-intention to
spoil the carrier of the girl. Both of them were married. It held that the girl had attained the age of puberty and
discretion and was on the verge of attaining majority and was a senior college student. The Court also stated that for
establishing charge of kidnapping, prosecution must show that accused did something earlier, though not on that
day, which tantamount the fact of him forcing her to leave the lawful guardianship.
R. v. Ahluwalia (1993) 96 Cr App Reports 133
FACTS OF THE CASE:
Kiranjit Ahluwalia was married to her husband, Deepak, and had suffered domestic abuse at his hands for almost 10
years, including physical violence, food deprivation and marital rape. On the evening of May 9, 1989, her husband
threatened to beat her and burn her with a hot iron, forcefully demanding money from her. Afterwards, they went to
bed, however, Kiranjit woke up in the middle of the night, and poured caustic soda and petrol that she had bought
few days ago in a bucket. She further proceeded to throw the bucket in her husband’s room, along with a burning
stick, which resulted in him sustaining severe burns, leading to his eventual death after 6 days of the incident. She
was convicted for murder.
APPELLANT’S CASE AT THE TRIAL COURT:
• Kiranjit’s trial started at the Lewes Crown Court, and on 7th December, 1989, she was convicted of murder by
a majority of 10:2. A sentence of life imprisonment was imposed upon her. No medical evidence was adduced
on her behalf at the trial court. She contended her that she did not intend to seriously harm him, but only to
inflict pain.
• Provocation was used by her as the secondary defense. She further contended that she had been suffering
violent treatment from her husband for a long period of time, and used the defense of provocation by
alleging a “sudden and temporary loss of self-control.”
She then sought substitution of her conviction for manslaughter of her husband, in place of murder, when she
appealed to the Court of Appeal. The Court of Appeal quashed the conviction and ordered a retrial on a fresh
indictment.
CONTENTIONS OF THE PROSECUTION:
At the trial, the prosecution on behalf of the deceased argued that the fact that Kiranjit waited for her husband to go
off to sleep after the hot iron incident, which gave her enough time to “cool down” and review her actions before
going through with her plan of murdering her husband. Additionally, the prosecution also claimed that the
knowledge of mixing caustic soda with petrol to create napalm, which was used to execute her husband’s murder,
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cannot be perceived as common knowledge, and thus there was proper preparation and planning behind the killing.
She had sufficient time to mediate and thus the defense of sudden provocation would fail.
ISSUES:
• Whether the appellant’s actions fall under the meaning of the phrase “sudden and temporary loss of self-
control”, and if the defence of provocation can be successfully availed?
• Whether the appellant’s characteristics (in this case, suffering from “battered woman’s syndrome” or having
been accustomed to a state of “learnt helplessness”) relevant to the determination of her liability in
committing the murder of her husband?
• Whether at the time of the killing, the appellant’s mental responsibility for her actions was diminished within
the Homicide Act, 1957?
RULES AND APPLICATION:
ISSUE 1:
• The phrase “sudden and temporary loss of self control” includes an essential element of the defence of
provocation. It is concerned with the actions of an individual who, at the time of the commission of the
offence, was not a master of his or her own mind.
It was held that Kiranjit’s response was the culmination of years of abuse, which does not fall within the definition of
sudden provocation, and thus her defence failed.
ISSUE 2:
• No evidence was adduced at trial that Kiranjit suffered from a post-traumatic stress disorder or 'Battered
Woman Syndrome', so as to effect the characteristics relevant to the reasonableness of her actions under the
test of provocation.
• The subjective element in the defense of provocation is considered and cannot be ignored simply because of
the delayed reaction. However, the longer the interval of time between the provocation and the fatal act, the
stronger the evidence on deliberation.
• Kiranjit contended that it was proved in cases where women had been suffering for years, they reacted to the
final act by a “slow burn” than by an immediate loss of self control. It was held that only the Parliament, not
the courts, could permit a provocation defense in circumstances of 'a "slow-burn" reaction [to long-term
spousal violence] rather than by an immediate loss of control.
• The case leaves open the possibility that post-traumatic stress disorder or "battered woman syndrome" is a
relevant characteristic for the purposes of provocation. The court holds that there was no evidence of such a
characteristic before the jury but, had the evidence adduced in the Court of Appeal been given at the trial,
"different considerations may have applied."
ISSUE 3:
• Diminished responsibility is one of the special defenses which exist solely for the offence of murder. It is
contained in the Homicide Act 1957. Where the defense of diminished responsibility is successfully pleaded,
it has the effect of reducing a murder conviction to manslaughter.
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• The following three elements need to be established in order to prove diminished responsibility, as u/s. 2 of
the Homicide Act:
a. An abnormality of mental functioning caused by a recognised medical condition;
b. Which provides an explanation for the acts or omissions of the defendant;
c. Which substantially impaired his/her mental ability to understand the nature of their actions, form a rational
judgment or exercise self-control.
d. The Court held that any medical evidence available must have been presented at the trial court. In this case,
the defense of diminished responsibility within the meaning of Homicide Act was used at the later stage,
during the retrial as no evidence was produced at the trial court.
However, this final ground of appeal was successful. It was unclear why this fact was not pursued at the trial court,
and the verdict given by the trial court was declared unsafe and unsatisfactory.
WEEK VI & VII

GENERAL EXCEPTIONS
Vishwanath v. State of U.P. (AIR 1960 SC 67)
Criminal Trial-Right of Private defence –When extends to causing death whether mere abduction which is not
Punishable gives right of private defence to cause death of abductor. Husband trying to take away wife forcibly from
her father's house-Wife's brother stabbing husband and killing him-If protected by right of private defence-Indian
Penal Code, 1860 (XLV of 1860), ss. 97, 99 and 100.
The Respondent said that his brother in law shall be able to take the defence only if the abduction that the respondent
was exercising against his wife was of the nature that is mentioned in the IPC.
On these facts the Sessions Judge was of opinion that Badri who had merely asked the appellant to beat Gopal could
not have realised that the appellant would take out a knife from his pocket and stab Gopal. Badri was, therefore,
acquitted of abetment.
Offences affecting the human body are to be found in Ch. XVI from s. 299 to s. 377 of the Penal Code and include
offences in the nature of use of criminal force and assault. Abduction is also in Ch. XVI and is defined in s. 362.
Abduction takes place whenever a person by force compels or by any deceitful means induces another person to go
from any place. But abduction pure and simple is not an offence under the Penal Code.
Each of the six clauses of s. 100 talks of an assault and assault is an offence against the human body; (see s. 352). So
before the extended right under s. 100 arises there has to be the offence of assault and this assault has to be of one of
the six types mentioned in the six clauses of the section.
It would in our opinion be not right to expect from a person who is being abducted by force to pause and consider
whether the abductor has further intention as provided in one of the sections of the Penal Code quoted above, before
he takes steps to defend himself, even to the extent of causing death of the person abducting. The framers of the
Code knew that abduction by itself was not an offence unless there was some further intention coupled with it. Even
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so in the fifth clause of s. 100 the word "abducting " has been used without any further qualification to the effect that
the abducting must be of the kind mentioned in s. 364 onwards. We are therefore of opinion that the view taken in
Ram Saiya's case (1) is not correct and the fifth clause must be given full effect according to its plain meaning.
Held, that the appellant had the right of private defence of the body of his sister which extended to the causing of
death of Gopal. The extended right under s. 100 arose when there was the offence of assault of one of the types
mentioned in the six clauses of that section. It was not necessary that the intention with which the assault was
committed must always be an offence itself. The word "abduction" used. In the fifth clause of s. 100 meant nothing
more than what was defined as "abduction " in s.362, and it was not necessary, to get the protection of this clause,
that the abduction must be of a type punishable under the Penal Code. Further, the appellant had not inflicted more
harm that was necessary and was not guilty of any offence.
Amjad Khan v. State (AIR 1952 SC 165)
Communal riot broke out in a town between some Sindhi refugees and the local Muslims. The trouble started in a
locality where most of the shopkeepers were Sindhis. The goods in the Muslim shops there were scattered and
some Muslims lost their lives. Alarm spread to another locality where the shops of appellant and his brother
(both Muslims) were situated and the people there, including the appellant, started closing their shops. The family
of the appellant's brother had taken shelter in the appellant's portion of the building through a hole in the wall
between the two portions of the building in which the two shops were situated. A mob collected there and
approached the appellant's locality and looted his brother's shop and began to beat the doors of his shop with lathis.
The appellant fired two shots from his gun which caused the death of one Sindhi and injured three other Sindhis.
“And we know that Muslim shops had already been broken into and looted and Muslims killed in the rioting at Zanda
Chowk which preceded this, in our opinion, the High Court was wrong in thinking that the appellant had to wait until
the mob actually broke into his shop and entered it. They have emphasised this in another part of their judgment also
where they say that the shot was fired- “when there was no looting at the shop and thus no right of private defence."”
Held, that the facts of the case afforded a right of private defence to the appellant under the provisions of the Indian
Penal Code. The circumstances in which he was placed were amply sufficient to give him a right of private defence
of the body even to the extent of causing death as the appellant had no time to have recourse to the authorities and
has reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or to
his family. These things could not be weighed in too fine a set of scales or "in golden scales."
R v. Dudley and Stephen 14 Q.B.D. 273 (1884)
On July 5, 1884, the prisoners, Thomas Dudley and Edward [sic] Stephens, with one Brooks along with Richard
Parker, were cast away in a storm on the high seas 1,600 miles from the Cape of Good Hope, and were compelled to
put into an open boat belonging to the said yacht. They did not have any supply of food or water for the first three
days they survived on the turnip that they had then on the fourth day they caught a turtle and survived on that till the
twentieth day. When no source of food and water could be traced the two prisoners decided to kill Richard but
Brooks dissented and they decided to wait for a day more for some vessel to arrive for their help but since no vessel
came they decided to kill Richard but still Brooks was against the act. The boy was then lying at the bottom of the boat
quite helpless and extremely weakened by famine and by drinking sea water, and unable to make any resistance,
nor did he ever assent to his being killed. Dudley, with the assent of Stephens, went to the boy, and telling him that
his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and
blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a
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passing vessel, and the prisoners were rescued, still alive. When the prisoners were being tried at Exeter they said
that would they not have killed the boy none of them would have survived to be rescued. Moreover, the boy being
the weakest amongst them would have anyways died soon. The court in Exeter said that assuming any necessity to
kill anybody, there was no greater necessity for killing the boy than any of the other three men. The judge said that
the killing of the boy was a totally unnecessary act because they might have been rescued the next day or never.
[T]he real question in the case [is] whether killing under the circumstances set forth in the verdict be or not be
murder. The Judge cites Lord Hale who said that one can kill another for rescuing one’s life as this shall be falling
under the act of ‘self-defence’. But the judge also provides the explanation for this definition of self defence so that
people don’t kill other innocents for saving their own life. "If a man be desperately assaulted and in peril of death,
and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the
fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact [sic], for he
ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his
own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the
assailant himself, the law of nature, and necessity, hath made him his own protector" (Hale's Pleas of the Crown,
vol. i. 51.)
Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the
killing can be justified by some well recognised excuse admitted by the law. To preserve one's life is generally
speaking a duty, but it may be the plainest and the highest duty to sacrifice it. It is not suggested that in this particular
case the deeds were "devilish," but it is quite plain that such a principle once admitted might be made the legal cloak
for unbridled passion and atrocious crime. the prisoners' act in this case was willful murder, that the facts as stated in
the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon
this special verdict guilty of murder.
WEEK VIII, IX
OBSCENITY & SEXUAL OFFENCES
Rao Harnarayan Singh v. State AIR 1958 P & H 123

, Tenant of the accused forced his wife to satisfy lust of the accused & his guests on eve of entertainment party. She
protested but finally under pressure of her husband she surrendered. 3 accused raped her during night & she died
almost immediately. Her shrieks were heard all over.
H.C. laid down difference b/w ‘Consent’ & ‘Submission’:-
1. Mere act of helpless resignation due to irresistible compulsion; passive giving in is not equal to Consent.
2. Consent requires voluntary participation after having exercised freely a choice b/w/ resistance & assent.
3. Consent in order to relieve an act of a criminal character (e.g. rape) must be an act of reason; accompanied
with deliberation after weighing both good & evil & with power to withdraw the assent according to one’s will
& pressure.
Tukaram v. State of Maharashtra (1979) 2 SCC 143

ISSUE: Whether both the appellants are guilty of rape under section 375 of the IPC? Were the appellants guilty
under section 34 of the IPC? Mathura (victim) fell in love with her employers cousin and hoped to marry him. Her
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brother lodged a complaint of kidnapping to the police. They were all brought to the police station at night to record
their statements and were allowed to leave at 10.30 p.m., but the appellants directed Mathura to stay back. Ganpat
(appellant) took Mathura into a latrine, loosened her underwear, stared at her private parts and then raped her. Then
Tukaram who was sitting on the cot while Ganpat had her way with Mathura. Fondled her private parts after Ganpat
left and also wanted to rape her, but was too intoxicated to do so. Mathura’s employer, brother and lover waited
outside for Mathura as the police station was locked from the inside and the light were switched off. A crowd then
assembled in front of the police station. The two appellants then emerged outside to tell the crowd that nothing was
wrong and that the girls has already left. Shortly after Mathura emerged from the rear of the station and informed the
crowd that the constables raped her.
The medical examination suggested the following-
• Mathura was approximately 14-16 years old.
• That Mathura was not injured.
• Her hymen had old ruptures
• There was no matting of pubic hair and no semen was found on the vaginal smear slides.
• Semen was however found on her clothes and pajama.
PROCEDURAL HISTORY: SESSION COURT
• No proof that Mathura is 16 years old and is thus old enough to have consensual sex.
• Court stated that there is a world of difference between sexual intercourse and rape; in this case the
prosecution is unable to prove the latter.
• Mathura was a “shocking liar’’ and her testimony is riddled with falsehood.
• Court stated that it is likely that she had sexual intercourse in the police station as rape was not proven and
she was habituated with sexual intercourse.
• She probably invented the story to make herself seem virtuous to her lover.
PROCEDURAL HISTORY: HIGH COURT
• Reversed the order of acquittal ordered by the district judge.
• The fact that semen was not found on the public hair nor on the vaginal smears was because the
medical examination took place 20 hours after the event. There is a very high probability that she had
taken a bath in that time.
• Session court should have differentiated between consent and passive submission.
• As the accused were strangers to Mathura it is highly improbable that she would have consensual sex
with them.
• “Mere passive or helpless surrender of the body and its resignation to the other's lust induced by threats
or fear cannot be equated with the desire or will…”
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• Mathura was in the police station at the dead hour of night so this increases the probability that the initiative
must have first come from the accused.
• Her conduct in making a statement in front of not only her relatives and lover but also the crowd in
front of the police station leaves no doubt that she was raped.
• The high court stated that although Tukuram did not rape the girly he did fondle with Mathura’s private
parts after Ganpat raped her.
• High court thus convicts the two appellants.
The Bombay High Court (Nagpur Bench) reversed the filing and sentenced Tukaram to rigorous imprisonment for
one year and Ganpat for five years.
APPEAL BEFORE SC:
The appellant challenged the decision of the High Court and argued:
• No proof that the girl was under any fear to justify the claim of “passive submission”
• The intercourse was a peaceful affair and her story was fabricated.
• The girl did not shout in protest.
• High court ignores the fact that the case begins when Mathura and her lover were leaving the police station
as it was then that Ganpat caught her.
• The intercourse was clearly consensual as there was no injury on her body so it was done in a
“peaceful way’’.
• The court disbelieves her claim that she shouted for help.
• On the basis of passive submission argument the Supreme court criticizes it on 2 grounds-
• When she was leaving the police station she could easily resist Ganpat grabbing her as her brother was
within view and a normal reaction would be to shake off his grip on her arm but she did not.
• The second reason is that under section 375 clause 3 rape is committed if she is under the fear of death or
hurt. In this case there is no finding to show that such a degree of fear is justified.
• The sentence against Tukaram has no proof and simply taking her word which has proven to be
untruthful cannot be done in this case.
• The judgment of the High court is thus reversed.
Open Lettter to CJI (1979) 4 SCC (J) 17
• The judgement given by the SC has ignored the basic rights of women.
• The Supreme court has overlooked a number of material facts-
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• The fact remains that she was asked to remain in the police station even after her statement was
recorded and her friends and relations were asked to leave. Why?
• The fact remains that Tukaram did nothing whatsoever to rescue the girl from Ganpat. Why did
Tukaram not help Mathura? Why was Tukaram being intoxicated not taken into account? Why
were the lights put off and doors shut?
• How could a girl (laborer) of 14-16 (the aspect of age is disputed with all the courts so it not clear
how old she actually is) years of age be expected to put a resistance to two well built policemen.
Does the absence of such marks necessarily imply absence of stiff resistance? If anything it is
Ganpat’s body which would have disclosed marks of such resistance by Mathura, like clawing and
biting.
• An absence of shouts of help does in no way amount to consent.
• Maybe, the evidence of shouts for help and ‘stiff resistance’ is all “a tissue of lies”.
• But does the absence of shouts justify an easy inference of consensual intercourse in a police station?
(Incidentally, what would be the Court’s reaction if the victim was dumb or gagged?) In any event,
how could the fact of shouting within closed doors of a police station be established in such cases?
• Does the Supreme Court believe that with the Sessions Judge that Mathura was “habituated to
sexual intercourse” to such an extent?
• And therefore further think that the semen marks on Mathura’s clothing could have come from
further sexual activities between the police incident and the next morning when she was medically
examined?
• What about semen marks on Ganpat’s trousers? Why these double standards? Ganpat’s sexual
habits give him the benefit of doubt of having ‘raped’ Mathura; her sexual habits make the Court
disbelieve the story of the rape altogether!
• How could the court believe that Mathura was so flirtatious that while her brother, employer and lover are
waiting outside she could not let go of the opportunity to have ‘’fun’’ with two policemen.
• Why did the supreme court only concentrate on the third component of section 375.
• But the second component of Section 375 is when rape occurs without her consent.
• There is a clear difference in law, and common sense, between ‘submission’ and ‘consent’.
• Consent involves submission; but the converse is not necessarily true. Nor is absence of
resistance necessarily indicative of consent. It appears from the facts as stated by the Court and its
holdings that there was submission on the part of Mathura.
• But where was the finding on the crucial element of consent? Could not their Lordships have
extended their analysis of ‘consent’ in a manner truly protective of the dignity and right of
Mathura?
• One suspects that the Court gathered an impression from Mathura’s liaison with her lover that
she was a person of easy virtue. Is the taboo against pre-marital sex so strong as to provide a
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license to Indian police to rape young girls? Or to make them submit to their desires in police
station?
• Not one word was spoken about the unlawful detention of Mathura with no proper cause and without
legal access in the police station late at night. Such unlawful detention was dealt with in Nandini Satpathy
v Dani (P.L.), where section 160 of the CRPC was emphasized to prevent the detention of women at a
police station as the section clearly states that a woman can only be interrogated in her home.
• There was no need for Ganpat to ask Mathura to stay back in the police station as the case that
was filed was for kidnapping and we know that she was never kidnapped as she was with her
lover.
• Cases like these with its cold-blooded legalism snuffs out all aspirations for the protection of human
rights of millions of Mathura’s in the Indian countryside. Why so?
• The Court gives no consideration whatsoever to the socio-economic status, the lack of knowledge of
legal rights, the age of the victim, lack of access to legal services, and the fear complex which haunts the
poor and the exploited in Indian police stations.
• Mathura, with all her predicaments, has been fortunate that her problem reached the High Court and your
Court. But there are millions of Mathura’s in whose situations even the first information reports are not
filed, medical investigations are not made in time, who have no access to legal services at any level and
who rarely have the privilege of vocal community support for their plight.
• But what matters is a search for liberation from the colonial and male-dominated notions of what may
constitute the element of consent, and the burden of proof, for rape which affect many Mathura’s on the
Indian countryside.
Govt. of NCT of Delhi v. Mahmood Farooqui (2016)
• The Prosecutrix was a PHD candidate from Columbia University, who was in Delhi to conduct research on
Indian History.
• She was introduced to the appellant while conducting her research through a common friend. They met thrice
prior to them establishing regular communication channels with one another.
• When they met the next time, at Hauz Khas Village, under the influence of alcohol, they exchanged a kiss.
• They met the next time in his house, where he had been invited for a dinner party, where the appellant’s wife
was present. Again, under the influence of alcohol, while his wife was absent, they exchanged a kiss.
• On the day of the incident, the appellant had invited the prosecutrix to a wedding, an invitation which she
accepted. She reached his residence at 9:00 PM so she could go for the wedding with him and his wife.
• On reaching his house, she found that he was drunk and crying bitter, because of a disagreement he had with
his wife and mother.
• Seeing his state, she called his brother Darrain, who conveyed to her that he would be unable to come and
that she should stay back and take care of him.
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• She attempted to comfort him, they exchanged kisses and she told him that she felt very maternal towards
him.
• He asked her if he could “Suck her”, a suggestion which she said no to. He kept attempting to pull her
clothing and underwear down, she kept pulling it up, until such a time that she succumbed to him and feigned
an orgasm.
• She claimed to have remembered a clip from the Nirbhaya documentary where her rapist said if she had not
fought, she would not have suffered the horrific fate that she did. Cognizant of this fact, given his physical
prowess over her and his drunken state, she did not fight back and feigned an orgasm so she may end the
ordeal.
• She stuck around after the incident for 45 minutes until she took a cab and left
• She did not immediately report the incident, she initially emailed him letting him know that she found his
conduct to be unacceptable. She was extremely kind to him in this initial email.
• Later on, after speaking to her advisor, she sent him another email condemning his actions in an extremely
strong manner. He was in a rehabilitation facility at this point, for treatment of his Bipolar tendencies.
• She returned to New York for counselling, post which she filed a complaint with the University.
• She then returned to India to file a complaint against the appellant.
• She refused to submit to any Gynaecological exams, but she submitted her dress worn that day, her phone
and laptop as well.
• TRIAL COURT: An Additional Sessions Judge in the District Court of Saket found the appellant to be guilty
under Section 376 of the Indian Penal Code and had sentenced him to 7 Years of Rigorous imprisonment and
a fine of Rs. 50,000.
Held
• The traditional trend of a simple yes or no being considered as consent is one which the court finds
difficult to accept as there could be affirmative consent or positive denial and the consent could be
underlying or dormant which could lead to confusion in the minds of the parties.
• The normal rule is that the consent has to be given and it cannot be assumed. The judge stated that recent
studies or trends showed that most sexual encounters are initiated and consented to by actions and
non-verbal communication to initiate and reciprocate consent.
• The judge went on to discuss the gender construct of consent. He said that men are largely the initiators of
sexual activity and women are largely non-verbal. He said that gender roles influence consent as men and
women are socialised into gender roles which influence their perception of consent. However, with gender
and equality being key words nowadays this can not be the situation
• Consent must be unambiguous, it must be communicated through mutually understandable words

and actions. Body language, non-verbal communication or previous activity can not be taken as consent. In
this particular case, the judge said that the prosecutrix’s non consent was not or could not have been known
to the appellant.
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• IF THERE IS A PRIOR CONNECTION BETWEEN TO PARTY’S WHERE THEY HAVE ENGAGED IN

PHYSICAL ACTS, A HESITANT OR FEEBLE NO MAY NOT BE TAKEN TO BE A DENIAL OF CONSENT.
• Under Section 375 of the Indian Penal Code, the appellant must be aware that the consent has been given
under a fear of injury. The judge concurred with the defence’s argument that the fear only existed in the
mind of the prosecutrix, it was not communicated to the appellant. Her actions contradicted what was
going on in her mind.
CRITICAL ANALYSIS:
• The Delhi High Court judgment acquitting Mahmood Farooqui is the Kohinoor among the jewels of bad
judgments in cases of sexual violence and that is an admirable feat itself when it competes with other
appalling judgments and orders that even after the progressive amendments to the law in 2013,
continue to build bad rape law precedents in this country.
• To begin with, the court creates a new defense for ‘intellectually/academically proficient’ parties, who are
‘persons of letters’ and not ‘conservative’ and unexposed to the ‘various ways and systems of the world’
where a ‘feeble’ no, the court says would not always mean a denial of consent (para 77).
• "The court also assumes that the accused, also a man of ‘letters’, known to the survivor, did not
understand that the survivor had said ‘no’, because presumably the ‘no’ was ‘feeble’ and that the accused
was ‘bipolar’ and unable to comprehend her response. The focus therefore magically shifts from what
the woman said to what the man understood.
• . People often harp on about how past intimacy/friendship/relationship would give the MAN an
impression that No might mean yes, but few remember that past sexual contact or past
intimacy/friendship/relationship etc engender trust in a WOMAN, make her feel that her NO, her
boundaries drawn by HER, will be respected.
• In this case, contrary to certain distortions of the facts, there was no “relationship” between the
parties. In a perverse and deliberate misreading of facts, the sexual autonomy of the prosecutrix, who
owned her sexuality to affirm that there were two consensual exchange of kisses in the past (and no
relationship) to repeatedly suggest that even though she continuously communicated her lack of consent
when the accused forced himself on her.
• The High Court disputes none of these findings. It holds that the prosecutrix is a sterling witness (para
96 of the judgment) but puzzlingly creates a separate class of survivors-- the ‘educated women’ (like
the prosecutrix) for whom the standard of ‘positive denial’, it deems, will be higher.
• The definition of consent was added to the expanded definition of rape in the 2013 criminal law amendments
to mean ‘unequivocal voluntary agreement’ when the woman by words, gestures, or any form of verbal
or non-verbal communication, communicates willingness to participate in the specific sexual act. The
legislative intent behind putting a definition to consent was to thwart decades of patriarchal and prejudicial
reading of ‘presence’ of consent in the judicial discourse where past sexual history, absence of physical injury
and other phallocentric commonsense were considered.
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Rahul Mookerji vs. State (NCT) of Delhi CRL.M.C. 283 of 2009
• The Petitioners are a young couple, aged 28 and 23 years, who solemnized their marriage on 4th September
2008 at the Arya Samaj Mandir, Delhi apparently without the knowledge of their respective parents.
• They sought a lawyer to get their marriage registered under the Hindu Marriage Act, 1955.
• The lawyer asked them to come to the Dwarka Court Complex on 18th September 2008 apparently to get
some paper work done in regard to the registration of their marriage.
• While they were waiting under the Metro Station near the court complex at around 3 pm in the afternoon, an
Assistant Sub-Inspector (ASI) of Police Vidyadhar Singh (attached to the Police Station Dwarka along with a
constable Roshan Lal) accosted them and allegedly told them that he knew what they were up to.
• According to the FIR which was registered at the instance of the Vidhyadhar Singh, he found the two
Petitioners sitting in an objectionable position near Metro Pillar No.1140 and were kissing each other.
As a result of which the passersby were feeling bad.
DECISION:
• The Delhi High Court has stayed criminal proceedings against a couple wondering how and why an
"expression of love by a young married couple" in this case allegedly by stealing kisses in public
should attract the charge of obscenity and trigger the coercive process of law,"
• The FIR doesn't make a case for offence under Section 294 (obscenity) read with 34 IPC. What is
striking is that despite the Sub-inspector (SI) finding on enquiry that the two petitioners were husband
and wife living in the same place, he thought it fit to go ahead and register an FIR for an offence under
Sections 294 read with 34 IPC.
• Although the FIR refers to passer-byes being annoyed not a single name of any passer-by is found
mentioned.
CRITICAL ANALYSIS
• The last two decades or so have been very productive for the moral police. From love jihad to Valentine’s
Day vandalisms, to disruptions of film shows and art exhibitions, they have, in this relatively short span,
built up an illustrious record of hooliganism and criminal intimidation aimed at stamping out from public
view any and all displays of romantic or sexual love between free, private individuals as well as any
display of individualism that might challenge the self-appointed guardians of national culture and
religious pride.
• But why is it that we never, ever, see the police—who are mandated to uphold the Constitution—stand up
for the rights of the individual citizen against the depredations of the moral police?
• The provision of the law that the moral police feed on is Section 294 of the Indian Penal Code (IPC), What
is interesting is that the most critical element of this provision, obscenity, is not defined. Which means
that whether or not a couple kissing in a public place is an “obscene act” is entirely a matter of
interpretation.
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Ranjit D. Udeshi vs State Of Maharashtra AIR 1965 SC 881
• ISSUE: Whether one should use Hicklin’s test or Community standard test to determine and demarcate a
line between what is artistic and obscene?
• The appellant is one of four partners of a firm which owns a book-stall in Bombay named Happy book stall.
• The appellant and in partners were found with possession for the purpose of sale copies of an obscene book
called Lady Chatterley's Lover (unexpurgated edition) which inter alia contained, obscene matter and
thereby were charged under section 292 of the IPC.
• https://www.youtube.com/watch?v=KH5AWN-c4b8
• On 12th December 1959, this book was sold to Ali Raza Sayeed Hasan.
• The Magistrate held that the offending book was obscene for purposes of the section 292 and convicted all
the partners on the first count and fined each of them Rupees 20 with one week's simple imprisonment in
default. The present appellant filed a revision in the High Court of Bombay. The decision of the High Court
was against him.
• He has now appealed to this Court by special leave and has raised the issue of freedom of speech and
expression guaranteed by the nineteenth Article.
• The appellant based his argument on three legal grounds which briefly are:
• (i) that s. 292 of the Indian Penal Code is void as being an impermissible and vague restriction
on the freedom of speech and expression guaranteed by Art. 19 (1) (a) and is not saved by cl. (2)
of the same article;
• (ii) that even if s. 292, Indian Penal Code, be valid, the book is not obscene if the section is
properly construed and the book as a whole is considered; and
• (iii) that the possession or sale to be punishable under the section must be with the intention to
corrupt the public in general and the purchasers in particular.
• Appellant argued that that the Hicklin’s test must be modified in two respects. The book is not
necessarily obscene because there is a word here or a word there, or a passage here and a passage
there which may be offensive to particularly sensitive persons.
• Firstly, the overall effect of the book should be the test and
• Secondly, that the book should only be condemned if it has no redeeming merit at all, for then it
is "dirt for dirt's sake", or as Mr. Justice Frankfurter put it in his inimitable way "dirt for
money's sake.
• Thirdly, that there must be an intention to corrupt the minds of the people the book was being
sold to because under the first sub-section of s. 292
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RATIONALE:
• Justice Hidayatullah:
• There is no loss to society if there was a message in the book. The divagations with sex are not a
legitimate embroidery but they are the only attractions to the common man. When everything said in its
favor we find that in treating with sex the impugned portions viewed separately and also in the setting of
the whole book pass the permissible limits judged of from our community standards and as there is no
social gain to us which can be said to preponderate, we must hold the book to satisfy the test we have
indicated above.
• No doubt this article guarantees complete freedom of speech and expression but it also makes an
exception in favor of existing laws which impose restrictions on the exercise of the right in the interests of
public decency or morality.
• Speaking in terms of the Constitution it can hardly be claimed, that obscenity which is offensive to
modesty or decency is within the constitutional protection given to free speech or expression, because the
article dealing with the right itself excludes it. That cherished right on which our democracy rests is
meant for the expression of free opinions to change political or social conditions or for the advancement of
human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in
the interest of the general public and one such is the interest of public decency and morality. Section 292,
Indian Penal Code, manifestly embodies such a restriction because the law against obscenity, of course,
correctly understood and applied, seeks no more than to promote public decency and morality.
• The court stated that the Hicklin test was not pertaining just to certain parts of the case here or there
but it was related to the overall story.
• The court looking at the story of the book Lady Chatterley's Lover they decided that the story did not show
obscenity in parts but the overall story had a very sexual atmosphere and hence could be classified as
obscene.
• The court refuted third argument that there must be an intention to corrupt the minds of the people the book
was being sold to because under the first sub-section of s. 292 because unlike some other Sections of IPC
which open with the words "whoever knowingly or negligently etc.“, this Section does not make
knowledge of obscenity an ingredient of the offence. The prosecution need not prove something which
the law does not burden it with. The court established a strict liability with respect to keeping obscene
material for sale with or without the knowledge of the obscenity.
• The Supreme Court of India held that the appellant was guilty under S 292 of the IPC as he was in possession
for the purpose of sale obscene material.
Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257
• Boris Becker, a renowned tennis played posed nude with his dark-skinned fiancée, Barbara Feltus,
who is an actress by profession. This photograph was published in a German magazine called, “Stern”
with the intent to portray the couple as a protestor of the practice of Apartheid as well as to signify a choice
of love over hatred.
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• “Sports World”, a widely circulated magazine and “Anand Bazar Patrika”, a newspaper having wide
circulation in Kolkata republished the article with the photograph.
• A practicing lawyer at Alipore Court, Kolkata, claiming to be a regular reader of Sports World as well as
Anand Bazar Patrika filed a complaint under section 292 of Indian Penal Code against the Appellants i.e. the
Editor, Printer and Publisher of the newspaper as well as the Editor of the Sports World, former
Captain of Indian Cricket Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional Magistrate
at Alipore with the say that such nude photographs would corrupt young minds, both children and youth
of this country and is against the cultural and moral values of our society.
• The appellant accused the respondents under section 292 of IPC as well as the section 4 of Indecent
Representation of Women (Prohibition) Act since he vividly believed that the photograph prima facie
gives a sexual titillation and its impact is moral degradation and would also encourage the people to
commit sexual offences.
• The accused persons filed an application and argued for dropping the proceedings while arguing that there
was no illegality in reproducing the news item and photograph as appeared in “Stern” published in
Germany as the same magazine was never banned in India and was never considered as ‘obscene’,
especially when section 79 of IPC states that ‘nothing is an offence which is done by any person who is
justified by law or who by reason of a mistake of fact and not reason of a mistake of law in good faith, believes
himself to be justified by law, in doing it.
• The Hicklin’s test of obscenity examined whether the tendency of the material is to deprave and corrupt
minds that are open to immoral influences, and into whose hands the material may fall.
• This test allowed the material to be judged on the basis of isolated parts of the work by their influence on
the most susceptible readers.
• While the Community Standards Test of obscenity examined while viewing the said picture in the
background of which it was shown, and the message it conveyed to the public and the world at large.
• The Supreme Court held that a photograph cannot per se be called obscene unless it has the tendency to
arouse feeling or revealing an overt sexual desire.
• Since the cover story of the Magazine carried the title, “posing nude, dropping of harassment, battling
racism in Germany” it was clear that the motive of such a photograph was against Apartheid.
• It also held that since the breast of Barbara Fultus were fully covered with the arm of Boris Becker the
photograph was semi-nude and had no tendency to deprave or corrupt the minds of people in whose
hands the magazine Sports World or Anandabazar Patrika would fall.
• The Court held that the photograph was not obscene within the meaning of Section 292 of the IPC.
• It did not excite sexual passion or tended to deprave or corrupt the minds of people in whose hands the
magazine or newspaper may have fallen.
• Further, the photograph and the article in which it appeared conveys the message of racial equality and
promoted love and marriage between persons of different racial backgrounds. Accordingly, the Court
found no offense under Section 292 of the IPC or Section 4 of the Indecent Representation of Women
(Prohibition) Act, 1986.
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Suresh Kumar Koushal & Anr vs Naz Foundation & Ors (2013)
• ISSUE: Whether Section 377, in so far it criminalizes consensual sexual activity of two adults of the
same sex in private, is violating Article 21(Right to life and personal liberty) guaranteed by the
Constitution of India?
• The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been working on HIV/AIDS and
sexual health from 1994 onwards.
• They filed a writ petition in the Delhi High Court challenging the constitutional validity of Section 377 of the
Indian Penal Code.
• This section penalizes unlawful sexual acts ‘against the order of nature’ which has the effect of
criminalizing even consensual sexual intercourse between two adults of the same sex or even of the
opposite sex indulging in penile non-vaginal sexual activities.
• The petitioner contended that Section 377 encroached upon Articles 14, 15, 19 and 21 of the Constitution
of India and also that the section ought not to criminalize consensual penile non vaginal sex between
two consenting adults of the same sex.
• In a milestone judgment conveyed on July 2, 2009, the Delhi High Court decided that Section 377 of the
Indian Penal Code, 1860 disregarded various fundamental rights, including the right to privacy and
right to dignity under the fundamental right to life and liberty (Article 21), the right to equality (Article
14), and forbiddance of separation on grounds of sex (Article 15).
• The said decision was appealed against in the Supreme Court of India in the Suresh Kumar Koushal and
another v NAZ Foundation and Others case and it was held that the Delhi High Court was wrong in its
findings and was also wrong in reading down the section to allow consensual homosexual activities
between two adults of the same sex.
It was argued by the Respondents that Section 377 is based on traditional Judeo-Christian moral and ethical
standards and is being used to legitimize discrimination against sexual minorities, i.e. LGBTs. They also
contended that the section is detrimental to people’s lives and public health because of its direct impact on
the lives of the homosexuals and serves as a weapon for police abuse.
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• Justice Singhvi also said that Section 377 is a pre-constitutional legislation and if it were violative of any of
the rights guaranteed under Part III, then the Parliament would have noticed the same and repealed the
section long ago. Based on this reasoning, he declared the section to be constitutionally valid.
• He also said that doctrine of severability and the practice of reading down a particular section flows from the
presumption of constitutionality and that in the said case, the Delhi High Court’s decision to read down the
section was wrong because there is no part of the section that can be severed without affecting the
section as a whole which also happens to be the only law which governs cases of paedophilia and tyke
sexual abuses and assaults.
• So, the Supreme Court held that Section 377 of the Indian Penal Code does not suffer from any
constitutional infirmity and left the matter to the competent legislature to consider the desirability and
legitimacy of deleting the Section from the statute book or altering the same to allow consensual
sexual activity between two adults of the same sex in private.
Critical analysis:
• Section 377 of IPC denies a person’s dignity and criminalizes his or her core identity solely on account of his
or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 denies a gay person
the right to full personhood which is implicit in notion of life under Article 21 of the Constitution.“
Thus, consensual sexual activities between two adults of the same sex should not be regulated by a law as it
violates their Fundamental Rights and a person’s choice of sexual accomplice is no business of the State to
regulate on.
WEEK X
OFFENCES AGAINST MARRIAGE
Yusuf Abdul Aziz v. State (AIR 1951 SC 321)

 Issue: Is ‘adultery’ unconstitutional as ultra vires as against Art. 14?
 Decision: Court said “No”.
 He charged for adultery u/S 497. Argues the Constitutional validity of s. 497 by saying that it excludes woman
from any liability (even that of abettor). So violating Art. 14 (Equality) as it says no discrimination on basis of
‘sex’ but Court said he missed the part that Special provisions can be made for woman for their benefit.
Argued, can’t give benefits that gives them license to commit crime.
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Sowmithri Vishnu v. Union of India (AIR 1985 SC 1618)

 Wife filed for divorce saying desertion. Court said desertion other way round.
 Husband filed for divorce saying desertion & adultery. Court allowed for divorce on grounds of desertion.
 Husband forced to ‘decide’ on question of adultery & also that she was in adultery.
 He files for case of adultery against that 3rd man & wife.
 Wife (Petitioner) argues that S. 497 is unconstitutional (violates Art. 14) as makes irrational classification b/w
man & woman. S. 497 is kind of ‘Romantic Paternalism’ that woman are property of man.
 Court held that no Constitutional provision is infringed as it is commonly accepted that man is the seducer &
not the women. It may have undergone change but it is for legislature to see the change in society. Why
women not punished as she is believed to be the ‘victim’ & not author of crime.
 Adultery is an offense against sanctity of matrimonial home & is committed by a man; as it generally is. If
husband has relation with unmarried woman then he is risking/inciting divorce.
 Court said there is no bar that wife (victim) won’t be heard with whom the accused is alleged to have
committed adultery. If she pleads, Court will definitely hear her.
 Remedies with the erring spouse is civil (divorce).
WEEK XI
COMPLITY & JOINT LIABILITY IN CRIMINAL LAW
Priya Patel v. State of M.P. (2006 CrLJ 3627)
Complaint was lodged by the prosecutrix alleging that when she reached her destination at Sagar, accused Bhanu
Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked
him to pick her up from the railway station. She went to his house there he committed rape on her. While the act of
rape was being committed the said Priya Patel wife of the rapist comes home she saw the act happening. The victim
asked for help but Priya Patel instead of helping slapped the victim and slammed the door of the house while she left
the house. The high court of MP said that although a woman might not be considered able to commit rape but she can
certainly be held liable for gang rape because she facilitated the act of rape which was committed by her husband.
Section 375 mandates the acts o sexual penetration by a man for the commission of the act of rape.
376. Punishment for rape:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years. (2) Whoever,--
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life
and shall also be liable to fine:
Explanation I.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
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The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance
of their common intention each such person shall be deemed to have committed gang rape within this sub-section
(2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only
indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person
of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who
has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the
common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a
criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable
for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and
necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The
acts may be different and vary in character, but must be actuated by the same common intention, which is different
from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act
must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their
common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman
cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission
that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2) (g).
The appeal is allowed to the aforesaid extent.
Barendra Kumar Ghosh v. Emperor (AIR 1925 PC 1)
The appellant was a part of the party of three men who went to kill the postmaster. Two of them went inside and killed
the postmaster where as the appellant was standing outside the premises at the place according to the plan. He
pleaded that given he did not go inside and kill the postmaster he shall not be made liable for the crime of murder.
The facts allege that a shot was fired from his pistol but it could not be proven out of the two shots which hit the
postmaster which one proved to be fatal.
34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several
persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as
if it were done by him alone.
The account of the appellant says that he did not fire the shot. But the evidence obtained connotes that the shot was
fired from the appellant’s pistol as well. The chief authority for the appellant is a decision of Stephen J. in 1914, in
Emperor v. Nirmal Kanta Roy (1911) I. L. R. 41 Cal. 1072a. In this case the Judge held that where two persons went to
kill the police man both of them fired at the policeman but one of them missed the shot and hence was acquitted by
the curt because he cannot be said to commit murder since his shot did not hit the police officer. The court also said
in the aforementioned case that if they were to hold the appellant in that case to be liable then it shall mean that they
were equating preparation and the actual commission of offence which shall at no cost be a right reading of the
intention of the law. The court in the case at hand said that the rule cited by the appellant in the nirmal’s case has
been disregarded by various courts in the country and hence cannot be relied upon. The court then said that a
difference has to be drawn (if any) between merely standing outside the door and actively participating in the crime.
The argument made from the appellant’s side is that section 34 since it says that every person a part of that group
shall be punished as if the act done was done by him alone, it requires that every person in the group should be
capable of commission of crime all alone. It was argued that a person who is a part of the party that has a common
intention and does an act which might be different from the acts done by the other members of the party but all of
them jointly lead towards a criminal offence then each person should be tried for the particular crime that one has
committed. It was also argued that the section 34 can only apply when all the members of the group, that is having a
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common intention, do similar acts. By way of illustration it may be noted that, in effect, this means, that, if three
assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one
bullet only grazes his ear, one of them is not a murderer and, each being entitled to the benefit of the doubt, all must
be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or of one.
The court then says that the appellants arguments cannot be used sine if that line of argument is followed then the
whole purpose of section 34 shall be defeated the court gave an example of a man who has been killed by two other
who strangled him by tieing a rope around his neck and then pulling it from opposite directions. If one applied the
appellant’s line of arguments here then each of them shall only be liable for attempt to murder and not Murder,
because the act that each one of them did if would have been done in the other’s absence then it would not have lead
to murder, but still the victim stays a murdered person, but the murderers cannot be punished. So the position that
the court accepted was:
“Yet absurd it is and absurd it must remain.”Where two men have done a man to death," said the learned counsel
(Record 127), "your lordships will not inquire into the individual effect of each blow: but the point I am insisting
on is that the doing to death must have been the joint acts of both." This concession, rational enough in itself, is
another way of saying that the section really means "when a joint criminal act has been done by the acts of two
persons in furtherance of a common intention each is liable for that joint criminal act, as if he had done it all by
himself."”
It was also argued by the appellant’s side that if the court holds that the section 34 is so important, then section 149.
Should be regarded as an otiose. But the court held that the two sections i.e. section 34 and section 149 maybe
overlapping but are not exactly the same hence one cannot replace the other. Sec. 34 talks about the common
intention whereas sec. 149 talks about the common object. Sec. 34 is not an offence in itself whereas sec. 149 is an
offence in itself. There is a difference between object and intention, for, though their object is common, the intentions
of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the
element of participation in action, which is the leading feature of Section 34, is replaced in Section 149 by
membership of the assembly at the time of the committing of the offence.
The appellant also raised questions regarding the section 114 of IPC.
114. Abettor present when offence is committed.—Whenever any person, who is absent would be liable to be
punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the
abetment is committed, he shall be deemed to have committed such act or offence
The appellant said that he cannot be held for abetment of the crime of murder because according to the
conversations held amongst the three the appellant was only being taken for show and was also assured that there
shall be no commission of murder. Hence since he never consented to the commission of the act hence his lawyer
said that he shall not be convicted for the abetment of the same.
The section is evidently not punitory, because participation de facto (as this case shows) may sometimes be obscure
in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean
nothing else but participation. The presumption raised by Section 114 brings the case within the ambit of Section 34.
Finally the court said that it expresses no opinion as of now.
Mahboob Shaw v. Emperor (AIR 1945 PC 118)
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The appellant has been convicted of murder under Section 302, read with Section 34 of the Indian Penal Code. He
was also convicted of the attempted murder of one Hamidullah Khan and sentenced to seven years rigorous
imprisonment; but that conviction has not been brought before the Board.
The deceased Allah Dad and his companion were out to collect the reeds. When they wer on their way to collect
reeds they were warned by Mohammad shah not collect reeds from their land, but they ignored his warning. On their
way back they were met by Qasim shah who demanded the reeds back from them. They refused to give the reeds;
qasim tried using force in return allah dad hit qasim with Lari, a bamboo stick. Qasim shouted for help, hearing
qasims voice mahbub shah and wali shah came out of the bushes both of them had guns wali shah killed Allah Dad by
firing shot at him and the shot fired by Mahbub shah injured the companion of Allah dad i.e. Hamidullah. Then the
learned Judge addressed himself to the question "whether a common intention" to commit the crime which was
eventually committed by Mahbub Shah and Wali Shah came into being when Ghulam Quasim Shah shouted to his
companions to come to his rescue and both of them emerged from behind the bushes and fired their respective guns,
and this he answered in the negative, holding that "so far as Quasim Shah was concerned, he did no more than ask his
companions to come to his assistance when he was attacked with a pole by the deceased: and that "he could not have
been aware of the manner in which assistance was likely to be rendered to him or his friends were likely to shoot at
and kill one man or injure another." In the result, he was acquitted of all offences. Section 34 lays down a principle of
joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an
intention common to all." To invoke the aid of Section 34 successfully, it must be shown that the criminal act
complained against was done by one of the accused persons in the furtherance of the common intention of all. This
being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a
pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal
act was done in concert pursuant to the pre-arranged plan. On careful consideration, it appears to their Lordships
that in the present case "there was no evidence and there were no circumstances from which it might be inferred that
the appellant must have been acting in concert with Wali Shah in pursuance of a concerted plan when he along with
him rushed to the rescue of Ghulam Quasim. Their Lordships are prepared to accept that the appellant and Wali Shah
had the same intention, viz, the intention to rescue Quasim if need, be by using the guns, and that in carrying out this
intention the appellant picked out Hamidullah for dealing with him and Wali Shah, the deceased, but where is the
evidence of common intention to commit the criminal act complained against, in furtherance of such intention? Their
Lordships find none. In the circumstances, their Lordships are not satisfied that the appellant was rightly convicted of
the offence of murder under Section 302, Indian Penal Code, read with Section 34. His conviction for murder and the
sentence of death passed on him should therefore be quashed.
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Mathew v. State of Travancore-Cochin (AIR 1956 SC 241)
The accused are said to be communists. Two of them, namely numbers 30 and 31, were arrested on 27-2-1950 at
about I P.m. and were confined in the Edappilly police lock up. The prosecution case is that the other 29 accused
entered into a conspiracy to release their comrades and in pursuance of that conspiracy attacked the police station at
about 2 A.M. on the 28th armed with deadly weapons such as choppers, knives, bamboo and other sticks and a
dagger. Two police constables were killed in the course of the raid. Thirty one persons were put up for trial. The
learned Sessions Judge acquitted 21 of them on all the charges and acquitted the remaining ten of the most serious
charge of all, namely the offence falling under the sections of the Travancore Penal Code which correspond to section
302 of the Indian Penal Code read with section 149. The convicts appealed to the High Court and the State of
Travancore-Cochin also appealed against the acquittals on the murder-cum-rioting count. The High Court dismissed
the appeals made by the ten accused and allowed the appeals, against the acquittals and imposed the lesser
sentence of transportation in each case. These ten accused now appeal here. The complaint on this score is that each
accused has not been told separately what offences he is being tried for. It is necessary at this stage to explain that
both courts find that there was an unlawful assembly and that the police station was raided and that arms and
ammunition and some of the station records were carried away by the raiders; also that two of the police constables
who were on sentry duty were murdered. The only point on which they differ is about the common object. Even if it
be assumed that the common object was only to rescue the two accused who were in-the lock up, it is obvious that the
use of violence was implicit in that object. People do not gather together at the dead of night armed with crackers
and choppers and sticks to rescue persons who are guarded by armed police without intending to use violence in
order to overcome the resistance of the guards; and a person would have to be very naive and simple- minded if he
did not realise that the sentries posted to guard prisoners at night are fully armed and are expected to use their arms
should the need arise; and he would have to be a moron in intelligence if he did not know that murder of the armed
guards would be a likely consequence in such a raid; and what holds good for murder also holds good for looting in
general. Now section 149 applies not only to offences actually committed in pursuance of the common object but also
to offences that members of the assembly know are likely to be committed. The appellants said that would they have
been given a chance to put out their accounts in front of the court they could have said that they were not aware of the
members carrying the lethal weapons. The answer to that is plain. There is nothing to indicate that the appellants are
deficient in intelligence and understanding, and if they are judged by the standard of men of reasonable intelligence,
as they must be, then an explanation of this kind cannot be believed. As regards the seventh accused, the only point
of substance in his case is that he was not asked to explain his presence at Kadiparambu where the agreement to
rescue and the planning are said to have taken shape. Counsel said that this accused lives there, so the mere fact that
he was seen among a crowd that had gathered there in the day time could not be regarded as a circumstance of
suspicion. That would have had force had it not been for the fact that he was again seen at the police station at 2A.M.
and was identified as one of the rioters who took an active part in the raid. In order to remove all doubts, we allow the
appeal to the extent of directing that the sentences imposed on each accused shall run concurrently and not
consecutively. Except for that, the appeal is dismissed.
WEEK XII
INCHOATE OFFENCES
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Anderton v. Ryan (1985 AC 560) House of Lords
LORD FRASER OF TULLYBELTON

 Allowed the appeal
LORD EDMUND-DAVIES
 whether on the established facts this appellant could have been convicted of the full offence of handling
stolen goods? (issue based on facts)
 The sole question raised by this appeal is whether the magistrates were right in dismissing the further charge
of attempting to "dishonestly handle a video recorder, knowing or believing it to be stolen (value £500),
contrary to section 1(1) Criminal Attempts Act 1981."
 There was no evidence of the goods being the stolen goods. It was just an inference drawn upon the physical
acts and the state of mind of the defendant
 In both cases the proper test is whether the defendant believed the goods to be stolen when he performed "an
act which is more than merely preparatory to the commission of the offence." (the test propounded by the
judge to test the criminality of the conduct)
 In the present case the Divisional Court held that the absence of evidence of theft was immaterial to the
charge of attempted handling. I think this was right, for either (a) the recorder had been stolen, in which case
the appellant was guilty of an attempt to receive it, since the fact that she was also guilty of the full offence of
handling leaves unaffected her liability to conviction for attempted handling (Webley v. Buxton [1977] Q.B.
481); or (b) the recorder had not been stolen, in which case the appellant was, under the Act of 1981, guilty of
attempted handling. ( the judgment given by the divisional court)
 The judge agreed with the divisional court
 In the present case the Divisional Court held that the absence of evidence of theft was immaterial to the
charge of attempted handling. I think this was right, for either (a) the recorder had been stolen, in which case
the appellant was guilty of an attempt to receive it, since the fact that she was also guilty of the full offence of
handling leaves unaffected her liability to conviction for attempted handling (Webley v. Buxton [1977] Q.B.
481); or (b) the recorder had not been stolen, in which case the appellant was, under the Act of 1981, guilty
of attempted handling. (the objective of the parliament behind making the law as stated by the judge)
 She also took steps which were "more than merely preparatory" to the offence of handling, for in her belief
that the goods were stolen she bought the recorder and received it into her custody. So she had the mens rea
and, as far as she could and thought (though mistakenly), she committed the actus reus of the full offence of
handling, though in reality a piece of the actus reus of handling "stolen goods" was missing. (laying out the
elements of ActusReus and Mens Rea)
 Thus considered, her "more than merely preparatory" conduct was, in my respectful judgment, certainly not
"innocent." On the contrary, contaminated by and performed in furtherance of her criminal objective, her
conduct now constitutes the actus reus of the new statutory offence of attempted handling ( deeming the
condusct to be actus reus)
 Appeal dismissed
 LORD KEITH OF KINKEL : APPEAL ALLOWED
LORD ROSKILL:
 Supports the purposive construction that is to be given to understand the real application of the law that has
been propounded
 that is to say that the courts should where possible identify "the mischief" which existed before the passing of
the statute and then if more than one construction is possible, favour that which will eliminate "the mischief"
so identified
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 FACTS: The facts are set out in the case which the justices stated for the opinion of the High Court. In the late
afternoon of Sunday, 6 April 1983 a police officer visited the appellant at her home at her request in order to
investigate a burglary which was alleged to have taken place there. In the course of conversation the
appellant admitted to the police officer that "she had bought the video recorder for £110 from a person whom
she declined to name." Later she said "I may as well be honest, it was a stolen one I bought, I should not have
'phoned you." In answer to the statement by the police officer that "You obviously knew it was stolen didn't
you?" she replied "Yes, I knew, but it was damaged at the back . . ." Subsequently she said in answer to the
question why she had bought it if she knew it to be stolen, she said "Well everyone's at it. I didn't think I'd get
discovered." It is right to mention that the police officer never saw the video recorder in question and
therefore could not give evidence either of its condition or of its value.
 ISSUE : Does a person commit an offence under section 1 of the Criminal Attempts Act 1981 where if the facts
wer as that person believed them to be the full offence would have been committed by him but where on the
true facts the offence which that person set out to commit was in law impossible?
 My Lords for the reasons I shall give I am of the opinion that on the facts of this particular case the appeal
should succeed and that the conclusion reached by the Divisional Court cannot, with respect, be supported
 The question then arose whether it was possible to attempt to commit an offence if the offence itself was
incapable of being committed for reasons unknown to the accused. ( question in Reg. v. Smith (Roger) [1975]
AC 476)
 The judge cited various different paragraphs from various different judgements to prove his point that a
person cannot be charged for an offence that is impossible to be committed.
 Lord Reid in a well known passage, at p. 500, dealt with the matter thus:
"I would not, however, decide the matter entirely on logical argument. The life-blood of the law is not logic
but common sense. So I would see where this theory takes us. A man lies dead. His enemy comes along and
thinks he is asleep, so he stabs the corpse. The theory inevitably requires us to hold that the enemy has
attempted to murder the dead man. The law may sometimes be an ass but it cannot be so asinine as that."
 I have come to the conclusion, in agreement with my noble and learned friend, Lord Bridge of Harwich, that
it does not. I respectfully agree with his view that if the action is innocent and the defendant does everything
he intends to do, subsection (3) does not compel the conclusion that erroneous belief in the existence of facts
which, if true, would have made his completed act a crime, makes him guilty of an attempt to commit that
crime. I also think that likewise a defendant who is possessed of a like erroneous belief and who after doing
innocent acts which are more than merely preparatory to fulfilling his intention, for some reason
subsequently fails to achieve that which he intends is not liable to be convicted of an attempt to commit a
crime.
 "If a person does an act which, if the facts were as that person believed them to be, would amount to an
offence to which this section applies, he shall be guilty of attempting to commit that offence." ( rule
that has evolved)
 "Where a person dishonestly handles goods in the belief that they are stolen goods but those goods are
not in fact stolen, that person is not liable to be convicted of attempting dishonestly to handle stolen
goods contrary to section 1 of the Criminal Attempts Act 1981." (rule evolved)
LORD BRIDGE OF HARWICH
 As matters stand, it is fundamental to the appeal that we must assume that the video recorder which,
according to her own statement, the appellant had bought for £110 was not and never had been stolen.
Objectively considered, therefore, her purchase of the recorder was a perfectly proper commercial
transaction.
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 the classic case, put by Bramwell B. in Reg. v. Collins (1864) 9 Cox C.C. 497, of the man who takes away his
own umbrella from a stand, believing it not to be his own and with intent to steal it; (example of the case
given by the judge)
 The common feature of all these cases, including that under appeal, is that the mind alone is guilty, the act is
innocent
 For all these reasons and for the reasons given by my noble and learned friend, Lord Roskill, I would allow
the appeal and answer the certified question, as modified, in the terms he proposes.
PARKER L.J.: ( appeal has been made by the police officer here)
 Further on in his speech, at p. 493, quoting from Turner J. in the New Zealand case of Reg. v. Donnelly [1970]
N.Z.L.R. 980 he sets out the six categories mentioned by that judge of which the sixth is as follows: "he may
without interruption efficiently do every act which he set out to do, but may be saved from criminal liability
by the fact that what he has done, contrary to his own belief at the time, does not after all amount in law to a
crime."
 The judge said that to convict the said Ms. Ryan the prosecution have to either prove that the goods were
stolen goods so that she can be held under the Act guilty for the attempt of the offence , the other way that
Judge said the prosecution can get the lady convicted under the act is by proving that the goods were not
stolen because then she shall be convicted under the sub-sub clause under the sub-clause 1 because that
would make the nature of the offence to be impossible. But since the prosecution failed to prove either of
these hence the only decision that could be arrived at was the acquittal.
 Appeal allowed, , the judge thinks that it is it right to let go someone who did an act with the intention of
committing an offence and it was at the point of ts culmination that it turned out to be impossible.
 “So the question: "Was the court right to dismiss the information?" must be answered in the negative. As to
question (b) which is: "Was the failure of the prosecution to prove that the goods in question are or were stolen
goods fatal to a charge of attempted handling of stolen goods?" the answer must also be in the negative. If it were
so fatal it appears to me that it would rob section 1 of the Criminal Attempts Act 1981 of all content and I am not
prepared to attribute to Parliament either (a) a useless exercise or (b) an exercise so bizarre that the guiltier you
are the less likely you are to be convicted. The position that, where there is a partial advance up the road to an
intended crime the result will be a conviction, but that arrival at the destination, apart from the impossibility
envisaged in this case, results in acquittal does not appear to me at all acceptable. Accordingly, I would allow
this appeal. The submission having been made and succeeded the case must, I think– but I am prepared to hear
argument about it – go back to the justices with a direction to convict.”
ARGUMENTS BY THE DEFENDANT’S LAWYER:

 The defendant's intention here was to buy a particular video recorder, not to buy a stolen one. She would
have preferred it if it had not been stolen. Her intention was to buy that recorder at that cheap price.
 REG. V. SMITH [1975] A.C. 476:
Smith was one of a number of men waiting to receive the lorry and its contents at a service area on the M1
motorway and the police, having intercepted the lorry and its contents, allowed it to proceed on its way with
a view to trapping the remainder of the gang involved. The concession already referred to having been
made, it was thought that it was not possible successfully to charge Smith with conspiracy to handle stolen
goods since technically the goods in question were no longer stolen goods by reason of section 24 of the Act
of 1968
R. v. Shivpuri (1987 AC 1) House of Lords
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Does a person commit an offence under section 1 of the Criminal Attempts Act 1981 where, if the facts were as that
person believed them to be, the full offence would have been committed by him, but where on the true facts the
offence which that person set out to commit was in law impossible, e.g., because the substance imported and
believed to be heroin was not heroin but a harmless substance?’
The appellant came to Indian where in one Mr. Desai agreed to pay him 1000 pounds if once he goes back to England
then he shall deliver a suitcase from Cambridge to South Hall. The appellant agreed but he and the man who was
there to deliver him the suitcase were arrested by the police and a powdered substance was found inside the
suitcase. Also other packets of the same substance were obtained by the customs officer from his house. He was
questioned by the police. The appellant claimed the powdered substance to be heroine or cannabis but it turned out
upon tests that the substance was just a harmless vegetable powder.
Did the appellant intend to receive and store (harbour) and in due course pass on to third parties (deal with)
packages of heroin or cannabis which he knew had been smuggled into England from India? The answer is plainly
yes, he did. The acts done by appellant here were more than preparatory because he not only went to station to meet
the person but also was found in possession of the packets. The appellant was rightly convicted of the two offences of
attempt with which he was charged. The appellant’s dominant intention in Anderton v. Ryan was to buy a cheap video
recorder; her belief that it was stolen was merely incidental. Likewise in the hypothetical case of attempted unlawful
sexual intercourse, the young man’s dominant intention was to have intercourse with the particular girl; his mistaken
belief that she was under 16 was merely incidental. By contrast, in the instant case the appellant’s dominant intention
was to receive and distribute illegally imported heroin or cannabis.
“I am thus led to the conclusion that there is no valid ground on which Anderton v. Ryan can be distinguished. I
have made clear my own conviction, which as a party to the decision (and craving the indulgence of my noble and
learned friends who agreed in it) I am the readier to express, that the decision was wrong.”
Appeal dismissed.
Emperor v. Asgar Ali Pradhania (AIR 1933 Cal. 833)
The appellant was convicted under sections 312/511 of the Indian Penal CODE of an attempt to cause a miscarriage.
The complainant was living in her father’s house and the appellant was a neighbour. According to the complainant,
following a number of presents received the appellant promised to marry her, and as a result sexual intercourse took
place and she became pregnant. After finding out, he asked her to take drugs to procure a miscarriage. One night,
he brought her a bottle half-full of a red liquid, and a paper packet containing a powder. The following night, the
appellant came and forced the complainant to take the substances. The complainant resisted saying she was afraid
for her life, after which, he asked her to open her mouth, and approached her with the bottle, and took hold of her
chin. But she snatched the bottle from him and cried out loudly, and her father and some neighbours came, and the
appellant fled. Upon analysis, the substance was found to have sulphate of copper and No poison was detected in the
liquid. According to the medical evidence, copper sulphate has no direct action on the uterus, and is not harmful
unless taken in sufficiently large quantities, when it may induce abortion.
Whether administering a harmless substance which the defendant mistakenly thought could be used to harbor
abortion can constitute an attempt to cause miscarriage?
The defendant was acquitted as Neither the liquid nor the powder being harmful, they could not have caused a
miscarriage. The act was inherently harmless and cannot amount to an attempt to cause miscarriage.
A distinction is made between failure of commission due to independent causes and failure due to the accused’s own
volition. The appellant's failure was not due to a factor independent of himself. Since the administration of the
harmless substance was a result of his own mistaken belief, the prevention of commission is also on him. “what he
does is not an act towards the commission of that offence, but an act towards the commission of something which,
cannot, according to ordinary human experience, result in hurt to another, within the meaning of the Penal Code. his
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act was intrinsically useless, or defective, or inappropriate for the purpose he had in mind.” His failure was due to his
own volition. His undertaking was not an “act “ done towards the commission of the offence” of causing a
miscarriage. The act which he committed was the “ administration of a harmless substance.” The appellant intended
to administer something capable of causing a miscarriage. As the evidence stands, he administered a harmless
substance. This cannot amount to an “ act towards the commission “of the offence’’ of causing a miscarriage.
Lort-Williams J quotes Empress v. Rupsir Panku to distinguish between frustration by independent circumstances and
by one’s own actions. As stated by the judicial commissioner, in the illustrations given in section 511 of the IPC, there is
not just a presence of an act committed with due intention and preparation, but also an act towards the commission which
constitutes attempt. The final commission is only frustrated due to external circumstances which could not possibly have
been altered by the offender. If not for the independent causes, the felony would have occurred as devised by the
offenders, hence renders them guilty. Turner J. also noted this distinction in Emperor V. Ramsarun which is quoted as
follows, “in each illustration we find the intention of the person making the attempt was, frustrated by circumstances
independent of his own volition.”
This case helped establish the four stages of a crime: The intention to commit, the preparation for the crime, the act
towards the commission of the crime, and the commission itself.
The case also established that towards the commission of the crime, if the act towards commission is prevented by
one’s own volition, he/she cannot be held liable.
State of Maharashtra v Mhd. Yakub (1980) SCR (2) 1158
SARKARIA, J.-
On receiving some secret information that silver would be transported in Jeep and a Truck from Bombay to a coastal
place near Bassein, Superintendent of Central Excise along with his tem kept a vigil on the way that led to Bassein. At
about mid-night, the aforesaid jeep was seen coming from Bombay followed by a truck. Ultimately, the jeep and
truck halted near a bridge at Kaman creek where the accused removed some small and heavy bundles from the truck
and placed them aside on the ground. The Customs Officers rushed to the spot and accosted the persons present
there. At the same time, the sound of the engine of a mechanised sea-craft from the side of the creek was heard by
the officers. The officers surrounded the vehicles. Respondent 1 was the driver and the sole occupant of the jeep,
while the other two respondents were the driver and cleaner of the truck. Respondent 1 falsely gave his name and
address as Mohamad Yusuf s/o Sayyad Ibrahim residing at Kamathipura. From the personal search of respondent 1, a
pistol, knife and currency notes of Rs. 2,133/- were found. Respondent 1 had no licence for keeping a pistol.
Prosecuting the respondent under the Arms Act. The trial Magistrate convicted the accused of the aforesaid offences
and sentenced accused 1 to two years' rigorous imprisonment and a fine of Rs. 2,000. Accused 2 and 3 were to suffer
six months rigorous imprisonment and to pay a fine of Rs. 500. The Additional Sessions Judge, Thana, on appeals from
the accused acquitted them on the reason that their act was mere preparation and they cannot be said to have
attempted the commission of offence of smuggling the silver ingots. Since preparation to commit the offence of
exporting silver was not punishable under the Customs Act, he acquitted the accused. Even the HC rejected the
appeal of state against the acquittal. Hence, [the state preferred] this appeal [in the Supreme Court].
Kenny in his OUTLINES OF CRIMINAL LAW defined "attempt" to commit a crime as the "last proximate act
which a person does towards the commission of an offence, the consummation of the offence being hindered by
circumstances beyond his control."
As pointed out in Abhayanand Mishra v. State of Bihar (1961 AIR 1698) there is a distinction between preparation
and attempt. Attempt begins where preparation ends. In sum, a person commits the offence of 'attempt to commit a
particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and
with the intention to commit the 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 that offence. Beyond
the stage of preparation, most of the steps necessary in the course of export by sea had been taken. The only step
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that remained to be taken towards the export of the silver was to load it on a sea- craft for moving out of the territorial
waters of India. But for the intervention of the officers of law, the unlawful export of silver would have been
consummated. It is important to bear in mind that the penal provisions with which we are concerned have been
enacted to suppress the evil of smuggling precious metal out of India. For reasons aforesaid, we are of opinion that
the High Court was in error in holding that the circumstances established by the prosecution fell short of constituting
the offence of an attempt to export unlawfully silver out of India.
CHINNAPPA REDDY, J.
The question is what is the difference between preparation and perpetration? An attempt to define attempt has to be a
frustrating exercise. Nonetheless a search to discover the characteristics of an attempt, if not an apt definition of
attempt, has to be made.
As a general principle the test of 'the last possible act before the achievement of the end' would be entirely
unacceptable. If that principle be correct, a person who has cocked his gun at another and is about to pull the trigger
but is prevented from doing so by the intervention of someone or something cannot be convicted of attempt to
murder.
In other words the steps taken must themselves be sufficient to show, prima facie, the offender's intention to commit
the crime which he is charged with attempting. That there may be abundant other evidence to establish his mens rea
(such as a confession) is irrelevant to the question of whether he had done enough to constitute the actus reus".
An attempt to commit an offence punishable under the Penal Code, generally, is dealt with under section 511 Indian
Penal Code. But the expression 'attempt' has not been defined anywhere.
In order to constitute an attempt, first, there must be an intention to commit a particular offence, second, some act
must have been done which would necessarily have to be done towards the commission of the offence, and, third,
such act must be “proximate” to the intended result. The measure of proximity is not in relation to time and action
but in relation to intention.
For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey
or even at Shirsad Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the
accused had prepared or were preparing for the commission of the offence. It could be said that the accused were
transporting or attempting to transport the silver somewhere but it would not necessarily suggest or indicate that the
intention was to export silver. The fact that the truck was driven up to a lonely creek from where the silver could be
transferred into a sea-faring vessel was suggestive or indicative though not conclusive, that the accused wanted to
export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to
be transported in the course of inter coastal trade. But, the circumstance that all this was done in a clandestine
fashion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be
exported.
Appeal allowed.
Abhayanand Mishra vs The State Of Bihar AIR 1961 SC 1698
This appeal, by special leave, is against the order of the High Court at Patna dismissing the appellant's appeal
against his conviction under s. 420, read with s. 511, of the Indian Penal Code. 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. Proper
admission card for him was dispatched to the Headmaster of the School. Information reached the University about
the appellant's being not a graduate and being not a teacher. Even the certification that he produced was forged ad
he was de-barred from appearing from university examination for a certain period. The appellant was acquitted of
the charge of forging those certificates, but was convicted of the offence of attempting to cheat inasmuch as he, by
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false representations, deceived the University and induced the authorities to issue the admission card, which, if the
fraud had not been detected, would have been ultimately delivered to the appellant. The appellants counsel said that
his client merely prepared for the offence of cheating and did not attempt to do so. The offence of cheating is defined
in s. 415, Indian Penal Code, which reads:
"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any
property to any person, or to consent that any person shall retain any property, or intentionally induces the person
so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act
or omis- sion causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is
said to 'cheat'.
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section."
There is no doubt that the appellant, by making false statements about his being a graduate and a teacher, in the
applications he had submitted to the University, did deceive the University and that his intention was to make the
University give him permission and deliver to him the admission card which would have enabled him to sit for the
M.A. Examination. This card is 'property'. The appellant would therefore have committed the offence of 'cheating' if
the admission card had not been withdrawn due to certain information reaching the University.
Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and
thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails
due to reasons beyond his control, he is said to have attempted to commit the offence. The relevant portion of s.
511 is:
"Whoever attempts to commit an offence punishable by this Code......... or to cause such an offence to be
committed and in such attempt does any act towards the commission of the offence, shall, where no express
provision is made by this Code for the punishment of such attempt, be punished........."
To constitute then the offence of attempt under this section (s. 511), there must be an act done with the intention of
committing an offence, and for the purpose of committing that offence, and it must be done in attempting the
commission of the offence. Two illustrations of the offence of attempt as defined in this section are given in the Code;
both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of
committing an offence and immediately enabling the commission of the offence, although it was not an act which
constituted a part of the offence,, and in each we find the intention of the person making the attempt was frustrated by
circumstances independent of his own volition.
From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an
ingredient (so to say) of the offence attempted.
Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act
attempted, does not cease to be a criminal attempt, just because the person committing the offence does or may
repent before the attempt is completed.
It is not necessary for the offence under s. 511, Indian Penal Code that the transaction commenced must end in the
crime or offence, if not interrupted.
In the present case, the appellant intended to deceive the University and obtain the necessary permission and the
admission card and, not only sent an application for permission to sit at the University examination, but also followed
it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph,
on the receipt of which the University did issue the admission card.
The preparation was complete when he had prepared the application for the purpose of submission to the University.
The moment he dispatched it, he entered the realm of attempting to commit the offence of 'cheating'. He did succeed
in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the
examination because something beyond his control took place inasmuch as the University was informed about his
being neither a graduate nor a teacher. We therefore hold that the appellant has been rightly convicted of the
offence under s. 420, read with s. 511, Indian Penal Code, and accordingly dismiss the appeal.
Appeal dismissed.
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R. v. Robinson [1952] 2 All ER 334
A jeweller, who had insured his stock in trade against burglary, with the object of obtaining the policy money from
the insurers falsely represented to the police that a burglary had been committed on his premises and the jewellery
stolen, in the hope that the police would make a report by which the insurers might be induced to pay; but before he
had made any communication about the pretended burglary to the insurers the fraud was discovered and he was
arrested. At the trial Lawrence J. directed the jury that if they thought the prisoner intended to obtain the 1200l. from
the underwriters by falsely pretending that he had been the victim of a burglary, and that if he had not been arrested
he would have gone on to make a claim against the underwriters, they might find him guilty of an attempt to obtain
the money by false pretences. The jury convicted the prisoner, who appealed. In the present case many things
remained to be done by the appellant before he could get the money. Even if he had made a claim against the
underwriters that would not have been enough unless he had coupled it with the “information and evidence as to the
property lost” required by the terms of the policy. But he did not make a claim of any kind against the underwriters,
or even communicate to them or to any agent of theirs the facts of the supposed burglary upon which the claim was
intended to be based. The police were not the agents of the underwriters to receive such a communication.
Is there any instance of a person having been convicted of attempting to obtain money by false pretences
where there was no evidence of the false pretence having been made to the person intended to be defrauded or
to his representative?
It is not known whether there is such a case, but it is contended that a direct communication to the person from whom
the money is to be obtained, or his agent, is not necessary. It is enough if the false pretence is so made that it will
presumably in the ordinary course reach that person's ears. Here it was part of the scheme that the police should be
deceived into making a report of a burglary having been committed, which report, if made, the underwriters would
be very likely to accept as true.
LORD READING C.J.
In the present case the real difficulty lies in the fact that there is no evidence of any act done by the appellant in the
nature of a false pretence which ever reached the minds of the underwriters, though they were the persons who were
to be induced to part with the money. The evidence falls short of any communication of such a pretence to the
underwriters or to any agent of theirs. In truth what the appellant did was preparation for the commission of a crime,
not a step in the commission of it. It consisted in the preparation of evidence which might indirectly induce the
underwriters to pay; for if the police had made a report that a burglary had taken place,—and that was presumably
what the appellant intended,—it may very well be that the underwriters would have paid without further inquiry. But
there must be some act beyond mere preparation if a person is to be charged with an attempt. We think the
conviction must be quashed, not on the technical ground that no information or evidence as to the property lost was
given to the underwriters as required by the policy, but upon the broad ground that no communication of any kind of
the false pretence was made to them.
WEEK XIII-XIV
OFFENCES AGAINST PROPERTY
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K.N. Mehra v. State (AIR 1957 SC 369)
• ISSUE: Whether the appellant can be convicted for the theft under sec. 379 of Indian penal code.
• K.N. Mehra (plaintiff) was a trainee in Indian Air Force Academy, Jodhpur. On May 14, 1952 the plaintiff had to
fly with his co-pilot (another trainee) as a part of a training program. But the plaintiff with Phillips, (another
trainee) flew without the permission of the authorities.
• They landed in Pakistan. They contacted J.C. KAPOOR, military adviser to the Indian high commissioner in
Pakistan for help to return to Delhi as they lost their way and have left their plane in a field there.
• Mr. Kapoor told that when he meet the appellants they told him that they want to go to Delhi to meet the
higher authorities.
• Mr. Kapoor made arrangements for there return journey and also arranged for the plane to be back to
jodhpur.
• On there way back to Delhi, they were stopped and arrested.
• The plaintiff’s argued that:
• They flew the plane for sometime and after that the weather turned bad reducing the visibility. They
turned the plane back assuming it to be the jodhpur way. Soon they were out of fuel and landed in
some field. On inquiry they came to know that they landed in Pakistan.
• They were mere cadets and no offense under the Indian penal code has been committed and the
cadets were authorized to take the plane for a fly and their landing in Pakistan was purely
unintentionally.
• They did not have maps or compass in the plane.
• The prosecution again stated that:
• Their fly to Pakistan was not unintentionally and the circumstances constituted theft of the aircraft.
• The plane was duly tested and was ready for flight with all equipment's.
• The Trial Court rejected the plaintiff’s case that the flight was unintentional.
• Further, the trial court stated that:
• This was just a story in order to impress Mr. Kapoor to send them to Delhi instead of jodhpur.
It further said that its an evidence that the flight time was between 5:00 to 5:30 AM which was
not a authorized time.
• Plaintiff started the engine by misrepresenting to the mechanic that he had the permission. He also
did not take the cadet with himself who was appointed by the flight commander. All these situations
turned against the plaintiff.
• It’s in evidence that whenever an airplane is seen taking off, it is contacted by the radios but the
plaintiff’s never responded to those messages.
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• The court stated that getting employment in Pakistan was one of the idea in plaintiff’s mind.
• Taking Phillips with him who was an experienced pilot was another a big evidence.
• It further added that all the evidences present are totally against the plaintiff.
• The taking out of aircraft was without the authority of the commander and before the appointed time
in the company of a person who has been discharge. There was no reasonable doubt that taking out
the Harvard aircraft by the appellant for the unauthorized flight and has in fact given the
appellant temporary use of the aircraft, for their own purpose and has temporarily deprived the
owner of the aircraft that is the government, of its legitimate use for its purposes.
• Such unauthorized conduct of the appellant was clearly a gain or lose by unlawful means.
• As there was absent of consent government and unlawfulness of the mean by which there has
been a temporary laws or gain by the use of the aircraft it is satisfied that there has been both
wrongful gain to the appellant and wrongful loss to the government.
• The appellant, K.N. Mehra was convicted under Sec. 379 of Indian Penal Code and sentenced to
simple Imprisonment for eighteen months and a 750 Rupee. And the appeal was dismissed.
Pyare Lal Bhargava vs State of Rajasthan AIR 1963 SC 1094
• A temporary removal of office file out of the office of the Chief engineer and making it available to
private person for a day or two amounts to the offense of theft.
• Taking need not be permanent It is not necessary that the taking should be of a permanent character,
or that the accused should have derived any profit. A temporary removal of an office file from the
office of a Chief Engineer and making it available to a private person for a day or two amounts to the
offence of theft
R. v. Velumyl [1989] CLR 299
• ISSUE: Does the contention raised by the defendant that he had an intention to return back the money he
had taken from the safe forms a considerate reason for his acquittal or not?
• Whether repayment of the “borrowed” value cleared him of intention to permanently deprive
the company and formed a valid defense for the theft committed?
• Whether the defendant had intention to permanently deprive the company of the cash amount?
• The defendant was a Director of a company and was convicted for the offence of theft for having taken money
out of the company’s safe.
• The defendant who was a company manager borrowed £1050 from a safe at work without authority and
contrary to company rules and lent it to a friend.
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• He intended to return the money on the following Monday and therefore claimed that he had no intention
permanently to deprive the employer of his property.
• His employer filed for a criminal suit for theft against him.
• The defendant contested the alleged theft charge against him by claiming that he was merely borrowing the
amount over the weekend and had intention to repay it back when he got back on work on Monday and thus
had no intention to deprive his employer of their property.
• The court reasoned its decision by saying that the appellant had no intention to return the exact notes and
coins he had taken out of the company’s safe, hence had an intention to commit theft. It would have been far
better for the appellant to contend that he had an intention to return the money by paying an equivalent
sum, not the exact money.
• The court held that the defendant’s intention to repay the money with different notes or coins did not
afford him a defense.
• He had the requisite intention permanently to deprive unless he could prove that not only he intended to
repay the value of the property “borrowed” but also the exact notes and coins he had taken from the
safe. Although it was proved that he had no intention to return the objects he had taken the court did
not suggested that there was a lack of dishonesty on the defendant’s part.
• The Court held that the defendant wanted to deprive the company from the money the appellant had taken.
• Conviction of the Lower Court was upheld and appeal dismissed.
WEEK XV
Death Penalty as a form of Punishment
Bachan Singh vs State of Punjab 1983 1 SCR 145
Bachan Singh, was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders
of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death sentence and
dismissed his appeal. Further the appeal was made before the sc by a special leave by Bachan Singh . A five bench
judge consisting Y.V. Chandrachud, C.J., A.C. Gupta, N.L. Untwalia, P.N. Bhagwati and R.S. Sarkaria, JJ was seated to
address the question raised in the
appeal that was, whether the facts of the case was reasonable “special reasons" for awarding, the death sentence as
required under Section 354(3) of the CrPC, 1973.
Whether death penalty provided for the offence of murder in Section 302, of the Indian Penal Code is
unconstitutional?
JUDGEMENT:
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In this case judges differs in two views, one is majority consisting of Y.V.Chandrachud,C.J., R.S.Sarkaria, A.C.Gupta,
and N.L.Untwalia JJ. The other view that is of minority consists of P.N.Bhagwati J. It was finally held that the impugned
provision of section 302 penal code violates neither the letter nor the ethos of article 19. It expressed the view that
death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 19 and
21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different
from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases’.
P.N.Bhagwati J believed that section 302 of IPC in so far as it provides for imposition of death penalty as an alternative
to life sentence is Void as being violative of Articles 14 and 21 of the constitution. Since it does not provide any
legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence.
Article 21 reads as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law. If this
Article is expanded in accordance with the interpretative principle: No person shall be deprived of his life or
personal liberty except according to fair, just and reasonable procedure established by Valid law. In the converse
positive form, the expanded Article will read as below: A person may be deprived of his life or personal liberty in
accordance with fair, just and reasonable procedure established valid law
The chief arguments of the Abolitionists, which have been substantially adopted by the learned Counsel for
the petitioners, are as under:
(a) The death penalty is irreversible. Decided upon according to fallible processes of law by fallible human
beings, it can be- and actually has been- inflicted upon people innocent of any crime.
It is true that death penalty is irrevocable and a few instances, can be cited, including some from England of persons
who after their conviction and execution for murder, were discovered to be innocent. But this, according to the
Retentionists is not a reason for abolition of the death penalty, but an argument for reform of the judicial system and
the sentencing procedure. Theoretically, such errors of judgment cannot be absolutely eliminated from any system of
justice, devised and worked by human beings, but their incidence can be infinitesimally reduced by providing
adequate safeguards and checks. We will presently see, while dealing with the procedural aspect of the problem,
that in India, ample safeguards have been provided by law and the Constitution which almost eliminate, the chances
of an innocent person being convicted and executed for a capital offense.
The 36th law commission report has stated after a lengthy discussion on the topic of death penalty that "Having
regard, however, to the conditions in India, to the variety of the social up-bringing of its inhabitants, to the disparity
in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the
paramount need for maintaining law and order in the country at the present Juncture, India cannot risk the
experiment of abolition of capital punishment."
"The motives for the death penalty may indeed include vengeance. Legal vengeance solidifies social solidarity
against law-breakers and probably is the only alternative to the disruptive private revenge of those who feel harmed.
The first function of capital punishment is to give emphatic expression to society's peculiar abhorrence of murder.... It
to important that murder should be regarded with peculiar horror.... I believe that capital punishment does, in the
present state of society, both express and sustain the sense of moral revulsion for murder."
Machhi Singh And Others vs State of Punjab 1983 SCR (3) 413
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• As a result of a family feud, Machhi Singh and his 11 companions (Appellants) committed 17 murders in quick
succession on the same night through five incidents(Crime Nos. I, II-A, II-B, III, IV and V) in five villages.
• The deceased and three other injured persons were all related to Amar Singh and his sister Piaro Bai, who
were Machhi Singh’s main opponents.
• On the night of 11th August, 1977, Machhi Singh and others broke into respective houses and attacked the
sleeping and helpless victims with gunshots and blows of Kirpans.
• All the victims except for three succumbed to injuries.
• Eye witnesses witnessed the incident in lantern light. Machhi Singh was identified as the common accuser in
each trial related to the five incidents.
• Crime II-A and II-B –
• Nine people intruded the house of one Kehar Singh and killed three inmates.
• They then proceeded to the house of one Bishan Singh, killed three inmates and chased a fourth down and
shot him as a result of which he was injured.
• Sessions Court convicted the appellants under Section 302 read with Section 149(Unlawful assembly) and
imposed death penalty on Machhi Singh, Kashmir Singh and Jagir Singh.
• Crime IV-
• Machhi Singh along with five others, intruded one mohinder’s house and shot him. Only his wife survived and
testified as an eye witness along with another eye witness Jagar Singh.
• Sessions Court awarded death penalty to Macchi Singh and life imprisonment to others.
• Sessions court:
The sessions court found the appellants guilty under Section 302, IPC and awarded death penalty to four of
them (Machhi Singh, Kashmir Singh, Mohinder Singh and Jagir Singh) and life imprisonment to the rest. They
were also convicted for different offences and punished for the same.
• The High Court affirmed the Sessions Court’s order and disposed the group of appeals by a common
judgment for the sake of convenience.
• Appellants appealed before the Supreme Court against the judgment.
• Whether the acts performed by Machhi Singh and the other three warrant Death Penalty?
• In ‘rarest of rare cases’ in which the whole community’s conscience is so shocked that it expects the holders
of judicial power center to inflict death penalty irrespective of their personal opinions as regards desirability
or otherwise of retaining death penalty, death penalty may be imposed.
• Guidelines emerging from the Bacchan Singh case-
The extreme culpability of death need not be inflicted except in gravest cases of culpability.
Before opting for the death penalty the “circumstances” of the offender also need to be taken into account.
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• Life sentence is the rule and death penalty is the exception. Death sentence must be imposed only when life
imprisonment appears to be altogether inadequate punishment having regard to relevant circumstances of
the crime and only provided, the option to impose imprisonment of life cannot be conscientiously exercised
having regard to nature and circumstances of the crime.
• The Supreme Court addressed two main criticisms which arose from the opposing counsel’s arguments.
• With respect to the argument that lantern light leads to a questionable evidence of identification, SC agreed
with the Sessions Court’s reasoning that since villagers were accustomed to lantern light, it did not affect the
identification.
• With respect to the role of Mohinder Singh (one of the four appellants who were awarded death penalty), the
second rifle used in commission of the crime was not issued to him and instead was issued to Kashmir Singh.
Thus a doubt was created with respect to the identity of the culprit who fired the rifle.
• The Supreme Court gave him the benefit of the doubt and differed from the High Court stating that the link
between the weapon and Mohinder was not established. Hence, his conviction and sentence was set aside.
• For Crimes I, II, III, IV and V, although Mohinder’s conviction was set aside, Macchi Singh and the other two
pursued a course of utter cruelty and atrocity. Not only were they cold blooded calculated and gruesome in
features, these had been committed while spreading horror of killing spree. The victims were in a helpless
and undefended state.
• The acts of the three appellants qualified the rarest of rare case test as the magnitude of the crime was
enormous in proportion and Bacchan Singh states that a community may engage in the expression of want for
death penalty when magnitude is extremely large.
Furman v. Georgia (1972) 408 U.S. 238 (1972)
• Furman was burglarizing a home and was caught doing so by a member of that household. Furman attempted
to leave the home and fell. Furman was carrying a loaded firearm which went off at the time of the fall and
killed a resident of the home. Furman was convicted of murder as a result of the incident and sentenced to
death. Although Furman did not intend to kill the resident, the fact that he nevertheless killed that resident
during the commission of a felony, was an aggravating factor, and the one in particular which made him
eligible for the death penalty.
• Furman who was found guilty of murder, joined with the cases Jackson v. Georgia and Branch v. Texas, where
the two appellants were convicted of rape by their courts of original jurisdiction. All three were sentenced to
death by their respective states.
• Since a direct review had failed them, the prisoners sought to attack their sentences collectively through a
writ of certiorari to the Supreme Court of Georgia. They argued that the death penalty imposed by the states
was illegal as it was a violation under the 8th and 14th amendments.
• Some noteworthy facts:
1. All three appellants were African-American
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2. The victims of Branch and Jackson were white women
3. Furman and Branch were labeled mentally challenged or borderline mentally challenged
Amendments in question:
The Eighth Amendment – The 8th amendment gives citizens the choice to either remain in jail while awaiting trial, or
to pay a reasonable bail based on the crime committed. This amendment prohibits the federal government from
imposing unduly harsh penalties on criminal defendants, either as the price for obtaining pretrial release or as
punishment for crime after conviction.
The Fourteenth Amendment – The 14th amendment defines a U.S. citizen as anybody born and naturalized in the
United States. It also guarantees all citizens “equal protection under the law,” regardless of race, ethnicity, etc. The
14th amendment came about after slavery was abolished, but the government realized African-Americans were still
being treated poorly.
Issue:
The legal question presented was whether the imposition and execution of the death penalty in such cases qualifies
as cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
Court held:
In this case, the Supreme Court ruled the use of the death penalty against Furman as unconstitutional. The court ruled
that Georgia’s use of the death penalty was in violation of the 8th and 14th amendments. It was a per curium decision
(5-4) in which the justices overturned the sentences of Furman, Jackson, and Branch. They felt that the way the death
penalty was administered fell under “cruel and unusual punishment as it was found to have been handed out
capriciously and arbitrarily in their cases. Each Justice then wrote separate opinions on the appropriateness of the
death penalty in modern.
• Brennan, J., concurring, stated that the Eighth Amendment's prohibition against cruel and unusual
punishment was not limited to torturous punishments or to punishments which were considered cruel and
unusual at the time the Eighth Amendment was adopted. He also found value in the concept of “evolving
standards of decency” and the Court cannot merely look at original intent. “Cruel and unusual
punishment(s)” were not enumerated and Congressman Livermore had mentioned in the Constitutional
Convention that if such enumeration was not given the courts will eventually rule the death penalty to be in
violation (the members gave no response perhaps in affirmation of such a fact). He also pointed out that the
Constitution is meant to protect the people from mob mentality and, therefore, Congress has limits on
punishments.
Brennan also listed four principles that would constitute “cruel and unusual punishment”, which were:
1. They are “unusually severe”
2. Strong likelihood that they are “inflicted arbitrarily”
3. They are “substantially rejected by society”
4. There exist less severe methods
He found that the death penalty falls under all four prongs and is thus invalid in all cases.
52
Crimes Case List
• Stewart, J., concurring, stating that the issue is whether the defendants’ sentences are cruel and unusual not
whether it is unconstitutional. The sentences are cruel because they are more harsh than necessary under
state law. He viewed the sentences as unusual because they had been arbitrarily applied to some and not
other equally culpable defendants. He further said that the petitioners were among a capriciously selected
random handful upon whom the sentence of death was imposed upon.
• Powell, J., while dissenting was appalled by the majority’s alleged violation of judicial restraint, stare
decisis, and separation of powers. He conceded that the meaning of “cruel and unusual” can change over
time but the Court went to far,and should uphold the duty to avoid encroachment on the powers conferred
upon state and federal legislatures. In addition, he held the opinion that death penalty just like the entire
penal system was disproportionate does not mean we can oppose it or declare it completely invalid. He of
course disagreed.
This case was overruled in the case of Gregg v Georgia in 1976.
Gregg v. Georgia (1976) 428 U.S. 153 (1976)
• Petitioner was charged with committing armed robbery and murder on the basis of evidence that he had
killed and robbed two men. At the trial stage, he was found guilty of two counts of murder and two counts of
armed robbery by the Jury. The judge instructed the jury that it could either hand out a sentence of life
imprisonment or death sentence. In case of the latter, the jury first had to first go beyond the reasonable
doubt (1) that the murder was committed while the offender was engaged in the commission of other capital
felonies, viz., the armed robberies of the victims; (2) that he committed the murder for the purpose of
receiving the victims' money and automobile; or (3) that the murder was "outrageously and wantonly vile,
horrible and inhuman" in that it "involved the depravity of the mind of the defendant. The jury was convinced
by the first two points and handed out a death sentence which was affirmed by the Georgia Supreme Court.
• The accused challenges his conviction as violative of the 8 th and the 14th amendment to the US Constitution.
• 8th Amendment – “No cruel or unusual punishments should be inflicted”
• 14th Amendment – “Grants citizenship rights and equal protection from the laws”
• A bench of 9 members of the US Supreme Court heard the appeal, and 7/9 held that death penalty does not
violate the 8th and the 14th amendment in all the cases. Death penalty can be awarded by judiciary in extreme
criminal cases of deliberate killing. The laws of Georgia allow the courts to award death penalty by following
due process of law, i.e. there were specific jury findings and the present case has been compared with past
cases. Also, by a plain reading of the Georgia Constitution, one can come to a conclusion that the legislative
intent was always to use capital punishment as a useful deterrent to future capital crimes and that it can be
used as an appropriate means of social retribution against its more serious offenders.
• The decision was affirmed by the US Supreme Court and the accused was awarded a death penalty.
53
Crimes Case List

Crimes Case Briefs: Sahil Bansal

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CRIMES CASE BRIEFS

2. Virsa Singh v. State of Punjab (AIR 1958 SC 465):.............................................................. 5

3. Gudar Dusadh v. State of Bihar (AIR 1972 SC 952) ............................................................ 6

4. Emperor v. Mt. Dhirajia ILR (1940) All. 647 : ..................................................................... 7

5. Gyarsibai v. State AIR (1953 CrLJ 558) : ............................................................................ 8

6. Cherubin Gregory v. State of Bihar (AIR 1964 SC 205): ..................................................... 9

7. KM Nanavati v. State of Maharashtra (AIR 1962 SC 605) ................................................ 10

9. Muthu v. State (2007) 12 SCALE 795 .............................................................................. 14

11. Varadarajan v. state of Madras, (1965) AIR 942 ............................................................ 15

12. R. v. Ahluwalia (1993) 96 Cr App Reports 133............................................................... 16

13. Vishwanath v. State of U.P. (AIR 1960 SC 67) ................................................................... 18

14. Amjad Khan v. State (AIR 1952 SC 165) ........................................................................... 19

15. R v. Dudley and Stephen 14 Q.B.D. 273 (1884)................................................................ 19

16. Rao Harnarayan Singh v. State AIR 1958 P & H 123........................................................ 20

17. Tukaram v. State of Maharashtra (1979) 2 SCC 143 ....................................................... 20

18. Open Lettter to CJI (1979) 4 SCC (J) 17 ......................................................................... 22

19. Govt. of NCT of Delhi v. Mahmood Farooqui (2016) ..................................................... 24

21. Ranjit D. Udeshi vs State Of Maharashtra AIR 1965 SC 881 ............................................ 28

24. Yusuf Abdul Aziz v. State (AIR 1951 SC 321) ................................................................. 32

25. Sowmithri Vishnu v. Union of India (AIR 1985 SC 1618) ................................................ 33

26. Priya Patel v. State of M.P. (2006 CrLJ 3627) .................................................................... 33

27. Barendra Kumar Ghosh v. Emperor (AIR 1925 PC 1) ....................................................... 34

28. Mahboob Shaw v. Emperor (AIR 1945 PC 118) ............................................................... 35

29. Mathew v. State of Travancore-Cochin (AIR 1956 SC 241) ............................................... 37

30. Anderton v. Ryan (1985 AC 560) House of Lords ............................................................. 38

31. R. v. Shivpuri (1987 AC 1) House of Lords ....................................................................... 40

35. R. v. Robinson [1952] 2 All ER 334 ................................................................................... 45

36. K.N. Mehra v. State (AIR 1957 SC 369) .......................................................................... 46

38. R. v. Velumyl [1989] CLR 299 ........................................................................................ 47

39. Bachan Singh vs State of Punjab 1983 1 SCR 145 ........................................................... 48

41. Furman v. Georgia (1972) 408 U.S. 238 (1972) .............................................................. 51

42. Gregg v. Georgia (1976) 428 U.S. 153 (1976) ............................................................... 53

WEEK III, IV & V

In Re: Sreerangayee v. Respondent (1973)1MLJ231

Virsa Singh v. State of Punjab (AIR 1958 SC 465):

Gudar Dusadh v. State of Bihar (AIR 1972 SC 952)

Emperor v. Mt. Dhirajia ILR (1940) All. 647 :

For these reasons the court declared t to be a case of culpable homicide.

Gyarsibai v. State AIR (1953 CrLJ 558) :

Cherubin Gregory v. State of Bihar (AIR 1964 SC 205):

KM Nanavati v. State of Maharashtra (AIR 1962 SC 605)

The fact scenario that the court relied on was:

B.D. Khunte v. Union of India and others (2015) 1 SCC 286

• The day-time incident had deeply shaken the Appellant.

• Exception 1 to Section 300 of the IPC

• The deceased must have given provocation to the accused.

• The provocation so given must have been grave.

Applying the rule, Appeal was dismissed –

• Appellant had settled for lesser act of retaliation – Beating

Convicted u/s 302 of the IPC

Muthu v. State (2007) 12 SCALE 795

Dr. Suresh Gupta v. State of NCT (2004) 6 SCC 422

Varadarajan v. state of Madras, (1965) AIR 942

R. v. Ahluwalia (1993) 96 Cr App Reports 133

FACTS OF THE CASE:

APPELLANT’S CASE AT THE TRIAL COURT:

CONTENTIONS OF THE PROSECUTION:

RULES AND APPLICATION:

a. An abnormality of mental functioning caused by a recognised medical condition;

b. Which provides an explanation for the acts or omissions of the defendant;

WEEK VI & VII

Vishwanath v. State of U.P. (AIR 1960 SC 67)

Amjad Khan v. State (AIR 1952 SC 165)