The Indian Penal Code

The Indian Penal Code
GENERAL INTRODUCTION I
Nature and Definition of Crime Introduction.—It is true that both
crime and criminal are looked upon with greatest hatred by all sections of the people in society, but
it is also true that the study and research of the law of crimes has always been one of the most
attractive branches of Jurisprudence since the early years of human civilisation. In fact the law of
crimes has been as old as the civilisation itself. Wherever people organised themselves into groups
or associations the need for some sort of rules to regulate the behaviour of the members of that
group inter se has been felt, and where there were rules of the society, its infraction was inevitable.
And there lies the necessity of devising some ways and means to curb such tendencies in the society
that lead to violation of its rules. In every organised society certain acts are forbidden on the pain of
punishment. Where one person injured another and the injury could adequately be compensated by
money value, the wrong-doer was required to pay damages or compensation to the wronged
individual. But in certain cases in addition to the liability to pay compensation the State imposes
certain penalties upon the wrong-doer with the object of preserving peace in the society and
promoting good behaviour towards each other and towards the community at large.
However, the problem arises as to what acts should be forbidden, or what acts should be
selected for punishment by the society or the State. In other words, what acts should be declared as
crime. According to Terence Morris : "Crime is what society says is crime by establishing that an
act is a violation of the criminal law. Without law there can be no crime at all, although there may
be moral indignation which results in law being enacted."1
The concept of crime has always been dependent on public opinion. As we
already know law reflects the public opirrion of the time. More than any other
hranch of law, criminal law is the mirror of public opinion. In order to know
lie nature and the content of crime we must first of all know what is law,
because the two questions crime and law are so closely related with each other
feat it is very difficult to understand one without knowing the other. Law is the
aggregate of rules set by men as politically superior, or sovereign, to men as
politically subject. Law is a command enjoining a course of conduct to be
•bserved by all the members of the society and is backed by a sanction. The
and may be of a sovereign or the command of a political superior to
al' inferiors, 'or the command of a legally constituted body or the legislation
enacted by a legally constituted legislature and addressed to the members
the society in general. \.
L Klare H.J.; "Changing Concepts of Crime and Tis Treatment", p. 17.

As we know : "Law is determined by the political process...it accords with what most people
recognise as minimum standards...not only the enforcement of laws but the definition of behaviour
as criminal is part of the political process, the rejection of the law by offenders is a form of social
protest of which they may be only dimly aware."1
Thus, law prescribes certain standards of conduct to be observed by the people in society.
These standards have the approval of the society in general. Any deviation from the standards of
behaviour fixed by the society is punished. Therefore, such conduct as does not accord with the
prescribed standard is loosely known as crime.
That being the definition of law, disobedience of law may be termed as a crime. But
disobedience of all law is not crime for an act done in breach of law of contract, personal law or
civil law may not be a crime unless such breach is by some law declared as criminal. To a common
man "crimes are those/ acts which people in society "consider worthy of serious
condemnation".2 .-''-Grime is said to be an act which is both forbidden by law and against the moral
sentiments of the society."3 Murder, robbery, theft, forgery and cheating etc. are the acts which
people in civilised society do not approve and therefore, they are termed crimes. Thus for an 'act' to
be a crime, it must be one done in violation of law and at the same time it should be opposed to the
moral sentiments of the society. But morals are relative and morality, as we know, is a varying
2 INDIAN PENAL CODE
concept for it goes on changing with the change in the necessities of the society of the times. Moral
values vary from country to country, from time to time, and from place to place in the same
country. This is evident from the fact that the same act is not declared as crime in different
countries. For example, adultery, suttee, polygamy etc. Adultery 'is a crime under the Indian Penal
Code; whereas it is not so in some of the continental countries. Suttee which means burning of a
married women on the funeral pyre after the death of her husband, was considered to be a virtuous
act in India a few centuries back, but it is now a crime under the Indian Penal Code. Polygamy is
prohibited among Hindus by the Hindu Marriage Act, 1955; but there is no such law for the
Christians or the Mohammedans. They are governed by their own personal laws. A Muslim may
even now have as many as four wives at a time. Christians are, of course, restrained under their
personal law to practice polygamy.
Thus, due to the varying nature of the content of crime all efforts to define crime with
perfection have failed. Russell has rightly observed that : "To define crime is a task which has so far
not been satisfactorily accomplished by any writer. In fact, criminal offences are basically the
creation of the criminal policy adopted from time to time by those sections of the community who
ar/e powerful or astute enough to safeguard their own security and comfort by causing sovereign
power in the state to repress conduct which they feel may endanger their position."4 _ '
Therefore, it is very difficult to frame such a definition of crime which may be true in all the
countries at all times. "Crime is not absolute like jsin, that can be defined and have an existence
beyond the limits of what men may say and do. It is essentially a relative definition of behaviour
that is constantly
1. Klare H.J.; "Changing Concepts of Crime and Its Treatment", p. 19.
2. Huda, The Principles of the Law of Crimes, p. 1. _
3. Stephen, General View of Criminal Law of England, p. 3.
4. Russel, Crime, Vol. I (11th Ed.) p. 98.
GENERAL INTRODUCTION 3
undergoing change."1
Definition of Crimea—Crime is defined as "an act punishable by law as forbidden by statute
or injurious to the public welfare."2 It is a very wide definition. Anything which is injurious to public
welfare is a crime. In modern complex society many things may be against the public welfare. Selling
contaminated food, molestation of young children or women in railway trains and misleading
advertisements may all be said to be injurious to public welfare.
According to Bentham, "Offences are whatever the legislature has prohibited for good or for
bad reasons. If the question relates to a theoretical research for the discovery of the best possible laws
according to the principles of utility, we give the name of offence to every act which we think ought
to be prohibited by reasonsôf some evil which it produces or tends to produce."
Blackstone in his "Commentaries on The Laws of England" has defined crime as "an act
committed or omitted in violation of a Public law either forbidding or commanding it."3
Thus according to Blackstone crime is an act in violation of public law. But what is public
law ? It has several meanings. In Austinian sense 'public Jaw' is identical with 'constitutional law'.
That being so, the crime would then mean, an act done in violation of constitutional law. The
definition would'thus cover only political offences leaving aside a vast area of other criminal
behaviour. Germans interpret 'public law' to include both constitutional law and criminal law. In this
case we will be making use of the expression 'criminal law' while defining 'crime', and that would
amount to arguing in circle. According to others 'public law' means all 'positive law'. 'Positive law'
means any law made by the State. Then crime would means an act done in violation of all positive
law which is not always true for many acts though done in breach of law are not crimes. Thus it may
be said that, whatever meaning we attach to the expression 'public law', the definition of Blackstone
does not prove to be satisfactory. In one sense it carries too narrow a meaning and in the other sense it
becomes too wide.
Blackstone also defines crime as "violation of the public rights and duties due to the whole
community, considered as a community, in its social aggregate capacity". 4 Stephen, the editor of
Blackstone has slightly modified this definition and presents it in the following form : "A crime is a
violation of a right, considered in reference to the evil tendency of such violation as regards the
community at large."
According to Blackstone, crime is an act done in violation of public rights and duties. But
according to Stephen, it is an act done in violation.of public rights only^ Stephen introduces an
element of error in his definition inasmuch as he excludes the acts done in violation of public duties
from the ambit of crime -for there are many acts which are done in violation of public duties and
termed as crimes. For example, being in possession of house breaking tools or-counterfeit coins. Then
too all breaches of law which are injurious to the society are not crime, for where the Directors of a
company fail to manage its affairs properly, the mill is closed, workers are rendered unemployed,
production of a commodity essential for the society is stopped. Will it not be an act which is injurious
to the society ? But can we prosecute the Directors for any crime ? The answer to this will probably
be 'No'. Therefore, to define crime as those breaches of law which injure the community cannot give
1. Terence Morris, "The Social Toleration of Crime" included in "Changing Concepts of Crime
and Its Treatment," edited by Klare H.J., p. 16.
2. The Oxford English Dictionary.
3. 4 Black, Comm. 4.
4. 4 Black, Comm. 5.
the whole truth. Hence, "to speak of crimes as those forms of legal wrong which are regarded by the
law as being especially injurious to the public at large, may be an instructive general description of
them, but is not an accurate definition."1
According to Stephen crime is an act forbidden by law and which is at the / same time revolting
to the moral sentiments of the society.2 If we look up to the penal codes of different countries we find
that there are certainly some acts which, though not immoral, are highly criminal and at the same time
there may be acts which are highly immoral but not criminal. In case of treason offences, there does
not seem anything immoral but almost in all penal codes treason is considered as a heinous crime in
the eyes of the establishment. We take another illustration of a man who is la well-known swimmer.
He is standing by the side of a river watching a child drowning in the river. He does not make any
effort to save the child from drowning. His act may be highly immoral but it is neither a criminal nor
a civil wrong..
Austin posits that, "A wrong which is pursued at the discretion of the injured
party and his representatives is a civil injury; a wrong which is pursued by the
sovereign or his subordinates jis a crime."3 '
Thus according to Austin in case of a civil wrong the State does not interfere until the wrong
has been committed and proceedings are initiated by the injured party or by some other person acting
4 INDIAN PENAL CODE
on his behalf. In case of criminal wrongs, proceedings can be instituted by the sovereign or his
subordinates alone. There are many cases of crimes under the Indian Penal Code where prosecution
cannot be launched unless a complaint is made by the aggrieved party. It is only in case of serious
crimes that the State may on its own initiative take action to punish the wrong-doer by initiation of
criminal proceedings in its own name. For example, in case of adultery under section 497 or criminal
elopement under section 498 of the Indian Penal Code a complaint by the person aggrieved is
necessary. No court shall take cognizance of the offence under the sections unless a complaint is
made by the husband of the victim woman.
Some people try to distinguish between the civil wrong and crime according to the interference
by the State in these acts. We already know that almost in all the States a huge police force is
maintained to maintain law and order and to take steps to prevent commission of crimes. Generally
speaking in civil wrongs proceedings are instituted after the commission of the wrong but in case of
crimes action may be taken even prior to the commission of crime that is when there is a reasonable
apprehension of commission of a crime.
To say that a civil proceeding can never be instituted until the wrong has been committed and
that in all criminal wrongs proceedings may always be started without the co-operation of the injured
party is not free from criticism, for civil proceedings are started to obtain injunction orders against
some anticipated wrong which is about to be committed. So also there are crimes where police do not
interfere to prevent the commission of the wrong.
According to Kenny : "crimes are wrongs whose sanction is punitive and is in no way remissible by
any private person; but is remissible by grown alone, if remissible at all.'"
1. Kenny, Outlines of Criminal Law, p. 8.
2. Stephen, General View of Criminal Law of England, p. 3.
3. Austin, Jurisprudence, Lecture XXVII.
Here the word 'sanction' means punishment and 'remissible' refers to pardon by crown. That
being so the definition of Kenny must mean that in crimes punishment may be remitted only by the
sovereign and by no private person. This is not always true. There are many crimes categorised as
'compoundable offences' in the Indian Penal Code which may be compounded without much
intervention of the court, which means remission of punishment by a private individual. So also in
English common law only those crimes are pardonable by the Crown which are against the public
laws and statutes of the realm. Thus the definition of Kenny also breaks down.
To Keeton, "a crime would seem to be any undesirable act which the State finds it most
convenient to correct by the institution of proceedings for the infliction of a penalty, instead of
leaving the remedy to the discretion of some injured person."
Miller defines crime "to be the commission or omission of an act which the law forbids or
commands under pain of a punishment to be imposed by the Sâte by a proceeding in its own name."2
According to Patan, "the normal marks of a crime are that the State has power to cpntrol the
procedure, to remit the penalty or to inflict the punishment." Thus we find that it is very difficult to
suggest a definition of crime suitable to all countries for all the time. Therefore, it would be easier to
know a crime through its attributes. The three attributes of crime are : first, it is a harm brought about
by some anti-social act of a human being which the sovereign desires to prevent; secondly, the
preventive measures taken by the sovereign are in the form of a threat of sanction or punishment; and
thirdly, the legal proceedings wherein the guilt or otherwise of the accused is determined, are a
special kind of proceedings governed by special rules of evidence.
Distinction Between Crime and Civil Wrong.—There are certain acts which are not
approved by most of the people in a civilized society because they have a tendency to reduce the sum
total of human happiness to conserve which is the ultimate aim of all laws. 3 Such acts are known as
wrongs, for example forgery, cheating, stealing and homicide etc. The evil tendencies of these acts
differ in degree. Some of them are considered serious enough so as to attract the notice of the laws,
others are only disapproved by the society. The latter are known as moral wrongs and are corrected by
the laws of the community or the laws of rjeligion. The reaction of the society in the case or former
wrongs is grave enough and is expressed either by asking the wrong-doer to make good the losses
caused to the person injured or by infliction of punishment upon him. That means the law either calls
upon the offender to pay damages to the person injured or awards punishment. Cases where the
wrong-doer is ordered to indemnify the person injured are known as civil wrongs and where he is
awarded punishment are known as crimes.
(i) Crimes are graver wrongs than torts for - they constitute greater interference with the
happiness of others and affect not only the individual wronged but the community as a whole.
Secondly, the impulse to commit crimes is often very strong and the advantage to be gained from the
1. Kenny, Outlines of Criminal Law (11th ed.) 1922, pp. 15-16.

2. Miller, Criminal Law, p. 15.
3. Huda, The Principles of the Law of Crimes, p. 2.
wrongful act is so great and the risk of detection is so small that the human nature is very likely to be
tempted to commit such wrongs. For example, pick-pocketing and gambling etc. Thirdly, < they are
generally intentional and voluntary acts prompted by an evil mind and are injurious to the society by
the bad example they set.
(ii) According to Blackstone, crimes are public wrongs and affect the
whole community; civil injuries are private wrongs and concern individuals. But
Huda observes that public and private wrongs, are not exclusive of one another,
for what concerns individual must necessarily concern the community of which
the individual is an unit, and similarly everything that affects or concerns the
community, must also concern and affect the ■ individuals that form the
community.1
(iii) The accused in crimes is treated with greater indulgence than the
defendant in civil wrongs. The procedure and rules of evidence in criminal
proceedings are modified in order to reduce to the minimum the risk of an
innocent person being punished. In criminal proceedings the accused is neither
bound to prove anything nor to make any statement in the court. He cannot be
compelled to answer any question.
(iv) The burden lies upon the prosecution to establish the guilt of the
accused to the entire satisfaction of the court and if there is any reasonable doubt
regarding the guilt of the accused, the benefit of doubt must always be given to
^the accused. But the defendant in a civil proceeding is not entitled to any such benefit of doubt.
(v) Crimes and civil wrongs are generally dealt within different tribunals.
The former are tried in the criminal courts and the latter in the civil courts.
(vi) In civil cases the punishment if used in its widest sense is of the
mildest nature and the law is satisfied with the restitution or compensation in
full for the object aimed at is to indemnify the individual wronged and to put
him as far as practicable in the same position in which he was, before he was
wronged. Therefore, he can compromise the case. In criminal cases, generally,
the State as protector of the rights of subjects pursues the offender in its own
name. There aref however, exceptions to this rule. In criminal proceedings
compounding is permitted only in exceptional cases.
(vii) The same act is either a crime or a civil wrong according as it is
done with or without an evil intent. An act to be criminal must be done with
criminal intent. No such malice or evil is necessary in case of a civil wrong.
Inasmuch as the difference between crime and civil wrong does not consist of any intrinsic
difference in the nature of the wrongful acts themselves, but only in the legal proceedings which are
taken upon them, the same injury may be both civil and criminal : for the law may allow both forms
of procedure of it alike.2
Modern Approach to Crime.—The basis of criminal law is that there are certain standards of behaviour of moral principles which society requires to be observed;
and the breach of them is an offence hot merely against the person who is injured but against society as a whole.3 Theoretically, a crime is a threat to every member of society,
even though it may be, in reality an offence against only one specific person.1 The function of criminal law as spotlighted by the Wolfendon Committee Report (1958) is to
preserve public order and decency, to protect citizens from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others,
particularly those who are young, weak in body or mind, inexperienced or in a state of physical, official or economic dependence. It is not the function of the law to intervene in
1. Huda, The Principles of the Law of Crimes, p. 2.

2. Kenny, Outlines of Criminal Law (11th ed., 1922), p. 18.
3. Patrick Devlin, The Enforcement of Morals (1965), pp. 6-7.
the private lives of citizens or to seek to enforce any particular pattern of behaviour further than is necessary to carry out the above purposes. Thus what a man does in private is
not the law's concern unless it can be shown to be so contrary to the public good that the law ought to intervene in its function as the guardian of that public good. Further, no
useful purpose may be served by ^legislating against an activity which cannot be satisfactorily controlled. The terror of jurisprudence in the Wolfendon Report appears to be
caused by the search for some single principle to explain the division between crime and sin. The report seems to have been based on the feeling that criminal law exists for
thejjrotection of individuals. "But the true principle is that the law exists for the protection of society. It does not discharge its function by protecting the individual from injury,
annoyance, corruption, and exploitation; the law must protect also-the institution and the community of ideas, political and moral, without which people cannot live together.
Society cannot ignore the morality of the individual any more, than it can his loyalty; it flourishes on botlr and without either it dies^12
II
Elements of Crime
The chief elements necessary to constitute a crime are :
(i) A human being under a legal obligation to act in a particular way
and a fit subject for the infliction of appropriate punishment; . ,
(ii) An evil intent on the part of such a human being;
6 INDIAN PENAL CODE
(iii) An act committed or omitted in furtherance of such an intent;.

(iv) An injury to another human being or to society at large by such
act.
Human being.—The act must have been done by a human being before it can constitute a
crime punishable at law. It is interesting to observe that there are enough examples in ancient legal
institutions of punishment being inflicted on animals or inanimate objects for injury caused by them.
This if of no wonder for the administration of criminal justice in those days was mainly dominated by
the idea of retribution. Therefore, if an animal was punished or the inanimate object was thrown out
of the boundaries of the State the feeling of vengeance was satisfied. This is probably in conformity
with the human nature. When a child falls on the ground and is hurt, we kick the ground to console
the child. This feeling cannot be said to be solely confined to children. In those days the right to
punish the wrong-doer lay in the hands of the individual wronged. Eater on the right of punishment
was taken away from the individual and was transferred into the hands of the society. The society
undertook to do everything for the individual what he had so far been doing for himself. Even during
this period the trial and punishment of animals was a remarkable feature of the administration of
criminal justice. Baring Gould's 'Curiosities of Olden Times' clearly bear out these facts. For
example : 'The first time an ass if found in a cultivated field not belonging to its master, one of its ear
is chopped off. If it commits the same offence again, it loses the second ear.'
Even appeal on behalf of the delinquent beast was not very uncommon in the middle ages in
1. Klare, H.J., Changing Concept of Crime and Its Treatment, p. 20. ,2. Patrick
Devlin, The Enforcement of Morals, (1965), p. 22.
Europe. We also find traces of the owner of the animal being punished for the wrongful acts of his
animal. For example : "if an ox gore a man resulting in his death, the ox was stoned and the owner put
to death. In order to extract confession, the animal was tortured and the cries of pain from the tortured
animal were taken to be confession of guilt. Animals were sometimes accepted as witnesses in the
Court. In Athens an ox or stone that killed anyone by accident was thrown beyond the country's
borders. Even in England a cart-wheel, a tree or a beast that killed a man was forfeited by the State for
the benefit of the poor.
It is a matter of pride that the ancient Hindu criminal jurisprudence did not provide for the trial
and punishment of animals and inanimate objects. Hindu jurists seem to be fully aware of the
requirement of an evil intent as a constituent of crime which is a modern development of western
criminal jurisprudence. That means, we presumed that the offender must be a human being who must
have developed maturity of understanding to know the nature of the act of which he is held liable.
With the development of the notion of mens rea as an essential element of crime, the trial and
punishment of animals and inanimate objects had to be given up. Even now vicious animals are
destroyed not as punitive but as preventive measure. Even today we hold the owner of the animal
liable in some cases for any damage caused by his animals but the punishment now is not for what the
animal has done but for the omission on the part of the owner to take proper , care of his animals and
thereby to prevent any mischief to others. Therefore, only a human being under a legal obligation and
capable of being punished can be the proper subject of criminal law. It means a human being must
have a body. Corporations and other artificial persons known to modern jurisprudence are not capable
of being punished, for appropriate punishment means both pecuniary and bodily punishment and the
latter cannot be inflicted upon artificial persons.
Mens rea.—'Actus non facit reum nisi mens sit rea' is a well-known maxim of criminal law. It
means 'the act itself does not make a man guilty unless his intentions were so.' From this maxim
follows another proposition : 'actus me invito factus non est mens actus' which means 'an act done by
me against my ^ will is not my act at all.' This means an act in order to be punishable at law must be a
willed act or a voluntary act and at the same time must have been done with a criminal intent. The
intent and the act both must concur to constitute the crime. 1 Where the criminal intent necessary to
constitute a crime is wanting there is no criminal responsibility unless the offence is expressly or by
necessary implication punishable without reference to the wrong-doer.2
English law started with a rule of strict liability.3 A man must almost in every case be deemed to have intended to do what he had done. It was on this assumption
that the trials were held in earlier times in England. The reason is that in those days the distinction between crime and tort was not water-tight and the punishment at that time
mainly consisted or a money payment of way of compensation to the wronged person. Therefore, the mental attitude of the wrong-doer was almost an irrelevant consideration.'
But later on the substitution of bodily punishment in suitable cases gave rise to the recognition of the notion of criminal intent behind the act.
1. Fowler v. Padget, (1798) 7 T.R. 509.

2. For similar observations see Harding v. Price, (1948) 1 K.B. 695.
3. Pollock and Maitland, History of English Law, Vol. II, p. 477.
Now the requirement of mens rea as a necessary element of. a crime is fully established. We
shall take a fuller discussion of the 'mens red' in the next part.
Actus Reus.—A human being and an- evil intent are not enough to constitute a crime for you
cannot know the intentions of a man. The thought of a man is not triable. The criminal intent in order
to be punishable must become manifest in some voluntary act or omission. According to Kenny 'actus
reus' is such result of human conduct as the law seeks to prevent. The act done or omitted must be an
act forbidden or commanded by some law. Russel calls actus reus as the 'physical result of human
conduct.' When criminal policy regards such act-as sufficiently harmful, the commission of the act is
prohibited on pain of punishment. The law's refusal to punish anything other than actions involves
four different things, namely2 (i) the law is only concerned with positive conduct as opposed to mere
inactivity, (ii) the law only prohibits acts as opposed to thoughts or intentions, (iii) the law only
penalizes acts as contrasted with' bodily states and forms of involuntary behaviour, (iv) a man is
punished only for his own conduct and not for that of others.
An act includes illegal omissions also. A man is held liable if some duty is cast upon him by
law and he omits to discharge that duty. That means an omission must be in breach of a legal duty.
Section 43 of the Indian Penal Code lays down that the word 'illegal' is applicable to everything which
is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person
is said to be "legally bound to do" whatever it is illegal in him to omit. 'A' happening to walk along a
deserted road at night during winter saw a just born infant abandoned on a side, realised that he could
save it without appreciable trouble, expense,, or loss of his time and also that it must die if left there
unprotected, but did nothing and went away. Later another person B also happened to pass by, saw
the infant, realised and acted just like A and went away. Next morning the infant died of exposure.
Here neither A nor B would be liable because the death of the child is not the result of any act or
illegal omission on their part. Similarly, where A and B, the husband and wife had a bitter quarrel; B
threatened to commit suicide and ran to a well and A did nothing to prevent her and she jumped into
the well and died, A would not be liable. If 'A' allows his wife and young children to die of starvation
he commits a crime because he owes a legal duty-to maintain his wife and children. Now suppose 'M'
faces some difficulty while swimming in a river, several persons, some of whom are even good
swimmers stand on the river-side watching 'M' drowning. All those persons do not make any effort to
save him. Here inactivity of any one of them cannot be said to be the cause of M's death. The problem
will be different when A pushes B into a river and B gets drowned. In this case AY act is cause of B's
death. In the former case there is no person on whom the blame of M's death can be put; in the latter
case A is the obvious person to be blamed. Now if we compare the two cases i.e., M's death by
drowning and death of young children due to starvation, we find that the former is a case of inactivity
and the latter is a case of illegal onvssion. A by-stander who refuses to come to the rescue of a
swimmer in difficulties may incur moral condemnation, but commits no criminal offence. It is true
that in respect of omissions, as opposed to mere inactivity, law and morals part company. Let us hope
that with the growth, of humanitarian ideas the conception of one's duty to others may gradually
expand so that such cases of human inactivity as no civilised society will ever approve are also
' 1. Russel, Crime (11th Ed.) Vol. 1, p. 20.
2. Fitzerald, P.J., Criminal Law and Punishment, p. 94.
included in the list of illegal omissions.
Injury to human beings.—The word "injury" as defined by section 44 of the Indian Penal
Code denotes 'any harm whatever illegally caused to any person, in body, mind, reputation or
property.' Injury must be illegally caused to another human being or to a body of individuals or to
society at large.
Thus we have seen that there are four elements that constitute a crime. However, there are a
few exceptions to this rule. Sometimes a crime is constituted even though the act is not accompanied
with guilty mind. These are the cases of strict liability, for example, the offence of 'bigamy' under
section 494, IP. Code. A crime is also constituted even though the actus reus has not consummated.
That means cases where no injury has been caused to any person. These are the cales of inchoate
crimes, for example, attempt, abetment and conspiracy. Furthermore, there may be a crime where
there is neither actus reus nor injury to a human being. These are cases of serious offences which are
taken notice of by the State prior to the actual commission in the larger interest of maintaining peace
in the society. These acts are branded as crimes as a preventive measure, for example, making
preparation to commit dacoity under section 399 and assembling for purpose of committing dacoity
under section 402 of the Indian Penal Code.
HI
Mens Rea i.e. Mental Element in Crime
8 INDIAN PENAL CODE
Meaning of Mens Rea

One of the main characteristics of our legal system is that the individual's liability to
punishment for crimes depends, among other things, on certain mental conditions. The absence of
these conditions, where they are required, negatives the liability. These conditions can best be
expressed in negative form as excusing conditions.' The liability to conviction of an individual
depends not only on his having done some outward acts which the law forbids, but on his having done
them in a certain frame of mind or with a certain will. 2 These are known as 'mental elements' in
criminal responsibility. That is, while acting in a particular way one intended certain consequences or
might foresaw the likeliness of those consequences. Therefore an act in order to be a crime must be
committed with a guilty mind, Actus non facit reum nisi mens sit rea (act alone does not make a man
guilty unless his intentions were so) is a well known principle of natural justice. No person could be
punished in a proceeding of criminal nature unless it can be shown that he had a guilty mind.3
In the earliest times the trials were held on fundamental presumption that a man must almost in
every case be deemed to have intended to do what he had done. The older English Criminal Law
began with the principle of strict liability for in those days the distinction between crime and tort was
1. Hart, H.L.A.; Punishment and Responsibility, 28.
2. Hart, H.L.A.; The Morality of the Criminal Law, 6.
3. Crisholm v. Doulton, 22 Q.B.D. 739.
not clearly drawn and punishment in those days mainly consisted of money compensation to the
person wronged. Therefore, the mental attitude of a person was an irrelevant consideration in so far as
the trial and punishment were concerned.
But later on bodily punishment came as a substitute of the payment of damages. It was then
that the importance of mens rea or the mental attitude of a person, at the time of commission of crime
was realised. With the passage of time the requirement of mens rea as an essential element of a crime
has firmly taken its roots.
Now it is the combination of act and intent which makes a crime. The intent and the act must
both concur to constitute a crime. 1 An act by itself is not wrong. But act, if prohibited, done with a
particular intent makes it criminal. There can be no crime large or small without any evil intent. 2 The
responsibility in crimes must depend on the doing of a 'willed' or 'voluntary act' and a particular intent
behind that act.3 Most conscious and voluntary acts are directed towards a particular result or
consequence. When one acts to produce a particular consequence he is said to do that act with that
intention. If the consequence is not looked for the act may be voluntary but not intentional. 4 For any
criminal liability there must be a 'voluntary act'. This proposition is derived from the maxim actus me
invito /actus non est mens actus which means 'an act done by me against my will is not my act'. This
maxim supports the doctrine of mens rea for no person can be held liable for an ac| done under fear or
compulsion. For example, A holds B and compels him at gun point to open the lock of C's house.
Here B's act is not a willed or intentional act. The difficult cases regarding-the application of the
doctrine are cases of voluntary acts where the evil intent is negatived by reasons of a mistake
regarding the actual state of facts or other grounds of a like nature such as contained in Chapter IV of
the Indian Penal Code. You are walking on a road. A man suddenly rushes to you and hits with a
stick. You are injured. Later on you find that the assailant was a man of unsound mind. Your feeling
of retribution will be lesser as you know that he was not in proper sense and had no mental capacity to
feel that by hitting upon your head he would be injuring you. On the other hand, your feelings will be
different against the man who hits you deliberately. The act may be the same and the consequences
too may be the same but the only difference lies in the intention. Therefore, what is important is an
intent to injure.
The basic requirement of the principle of mens rea is that accused must have been aware of all
those elements in his act which make it the crime with which he is charged. 5 That means, he must
have intended the actus reus or have been reckless whether he caused an actus reus or not. It is not
necessary that he must know that the act which he is going to commit is crime.
As general rule a man is criminally liable only for such consequences of his conduct as he
actually foresaw. Liability for such unforeseen consequences which he ought to have foreseen is
1. Fowler v. Padget, (1789) 7 T.R. 514.
2. Bishop's Criminal Law (7th ed.) 287.
3. Salmond, Jurisprudence (10th ed.) 366.
4. Huda S., Principles of Law of Crimes in British India, 172.
5. J.C. Smith. The Guilty Mind in the Criminal Law, (1960) 76 L.Q.R. 1.
termed liability for negligence. It is only in exceptional cases that criminal liability is imposed for
negligence; usually mens rea, actual foresight of the consequences which constitute the actus reus
must be proved.
Mens rea refers to the mental element necessary for the particular crime. Mental element may
be either intention to do the act or bring about the consequence or in some crimes recklessness as to
that consequence.1 it implies a blameworthy condition of mind which involves a knowledge of the
character of the act and foresight of the consequences. Mens rea does not mean a single precise state
of mind but it takes on different colours in different surroundings. 2 The truth is that there is no single
precise state of mind common to all crimes. 3 Nonetheless it is as vitally necessary for true crime as
understanding is necessary for goodness.4
VOLITION, MOTIVE AND INTENTION Volition.—Every conscious act which we
do is preceded by a certain state of mind. No physical act is possible without bodily motions. And
every bodily motion, which constitutes an act is preceded by a desire for those motions. According, to
Austin, "bodily movements obey wills. They move when we will they should. The wish is volition and
the consequent movements are acts. Besides the volition and act, it is supposed there is a will which is
the author of both. The desire is called an act of the will, when I will a movement I wish it, and when
I conceive the wish I expect that the movement wished will follow. The wishes followed by the act
wished, are only wishes which attain their ends without external means. Our desires of acts which
immediately follow our desires of them, are volitions. The act I will, the consequence I intend. This
imaginary will is determined to action by motives." The desire which implies the motion is known as
volition. Where this desire is not produced by fear or compulsion the act is said to be a voluntary one.
'The longing for the object desired which sets the volition in motion is motive. The expectations that
desired motions will lead to certain consequences is the intention." 5 We will the act and intend the
consequences.
Will.—According to Stephen, "will is often used as being synonymous with the act ofvolition,
which precedes or accompanies voluntary action." By will he means either the particular act of
volition, which is a stage in voluntary action, or a permanent judgment of the reasons that some
particular course of conduct is desirable, coupled with an intention to pursue it, which issues from
time to time in a greater or lesser number of particular volitions.
INTENTION AND MOTIVE
According to Stephen, "Intention is an operation of the will directing an overt act; motive is the
feeling which prompts the operation of the will, the ulterior object of the person willing, e.g., if a
person kills another, the intention directs the act which causes death, the motive is object which the
person had in view, e.g., the satisfaction of some desire, such as revenge etc."6
Intention is the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it. Such foreknowledge and being desire the cause of
1. Williams, G., Criminal Law, p. 29.

/ 2. Sayre, Mens rea, 45 Harv. L. Rev. (1932) 402.
3. Ibid. 404.
4. Ibid. 410.
5. Huda. S., Principles of law of Crimes in British India, p. 172.
6. Stephen, History of the English Criminal Law. Vol. II.
the act, inasmuch as they fulfil themselves through the operation of will. In intention, the actor chooses, decides, resolves to bring a prescribed harm into being, he consciously
employs means to that end.1 An act is intentional if, and in so far as, it exists in fact, the idea realising itself in the fact because of the desire by which it is accompanied.2
Intention is also said to be "an operation of the will directing an overt act; motive is feeling which prompts the operation of the will, the ulterior object of the person willing."3
According to Bentham, motive is anything which by influencing the will of a sensitive ,being is supposed to serve as a means of determining him to act upon any occasion.
Intention refers to the immediate object, while motive refers to the ulterior object which is at
the root of the intention. In other words intention is the means and motive is the end. But innocence of
the motive may not excuse where intention will excuse. Bad motive does not punish and good motive
does not excuse. A removes a cow belonging to B to save her from being slaughtered. Here A had an
excellent motive but he will not be excused for he unlawfully deprives B of his cow which legally
belongs to him. Similarly, where an executioner hangs his own enemy who was sentenced by court of
law and thereby gratifies his spite, shall not be held liable for he has done the fact in the discharge of
a legal duty. Thus, we see that criminal law does not take- into account the motives of a man but his
intentions. According to Salmond, "every wrongful act may raise two distinct questions with respect
to the intent of the doer. The first of these is : how did he do the act? intentionally or accidentally. The
second is : if he did it intentionally, why did he do it ? The first is an enquiry into his immediate
intent; the second is concerned with his ulterior intent or motive."4
According to Austin, "the intention is the aim of the act, of which the motive is the spring." 5 The
ulterior intent is the motive of the act. 6 The immediate intent is coincident with the wrongful act
itself : the ulterior intent or motive is that part of the total intent which lies outside the boundaries of
the wrongful act.7 In reality motive is a specie of intent. 8 According to Williams, "in criminal law, it is
generally convenient to use the terms 'intention' with reference to intention as to the constituents of
the actus reus, and the term 'motive' with reference to the intention with which the actus reus was
done."9 ORIGIN AND DEVELOPMENT OF MENS REA
10 INDIAN PENAL CODE
There can be no crime without an evil mind. It is principle of almost all legal systems that the
essence of an offence is a wrongful intent witfeouj^which it cannot exist. 10 Coke traces the origin of
the maxim actus non facit reumltisi mens sit rea to the Sermons of Augustin as ream linguam non
facit nisi mens rea. The author of Leges Henrici picked it up from some intermediate work in which
1. Hall, Jerome; General Principles of Criminal Law (2nd ed.) 112.
2. Salmpnd, Jurisprudence (11th ed.) 410.
3. Stephen, History of English Criminal Law, Vol. II.
4. Salmond, Jurisprudence, 523.
5. Austin, Lectures on Jurisprudence, (4th ed. 1879) 165.
6. Salmond, Jurisprudence, 398.
7. Jerome Hall, General Principles of Criminal Law (2nd ed.) 85 (Hall's analysis of Salmond's
. '•,___. views).
8. Hitchler, The Law of Crimes, 87 (1939).
9. Williams, G., Criminal Law, 42.
10, Bishop, Criminal Law (9th ed.) 287.
Linguam may possibly have disappeared. After Coke this maxim was taken help of in many English
decisions. Lord Ketiyon accepted this maxim to be a principle of natural justice and English law.1 'It is
a maxim older than the\ law of England that no man is guilty unless his mind is guilty' observed Lord
Arbinger in R. v. Allday.1
The liability in early English law was absolute. The law made men answerable for all the ills
that their deeds may obviously bring upon their fellows. 3 The doer of the deed was responsible,
whether he acted innocently or inadvertently, because he was the doer.4
The modern notion of mens rea was non-existent until twelfth century but criminal intent was
not entirely disregarded in respect of certain offences while awarding punishment Thirteenth century
English law was influenced by Roman law conceptional of dolus and culpa. By the time of Edward I
the incapacities resulting from infancy and insanity were recognised as defences. By the reign of
Edward III, coercion was a defence in certain cases of treasons and it had become settled that in order
to hold the owner of an animal criminally liable for injuries done by it, his knowledge of its ferocity
must be shown. During fourteenth and fifteenth century, the requirement of mens rea as a necessary
element of crime was established, though there is some evidence to the contrary also. Common law
laid emphasis on moral guilt. Bracton wrote : "We must consider with what mind (animo) or with
what intent (voluntate) a thing is done in fact or in judgment in order that it may be determined,
accordingly what action shoujd follow and what punishment. For, take away the will and every act
wiirbe indifferent, because your state of mind gives meaning to unless the intent to injure (non-
cledivoluntas) intervene nor is a theft committed except with' intent to steal."
Although the mens rea maxim appeared in the Leges Henrici, it does not seem to have' been
used by Bracton. Voluntas nocendi, animo and maleficid are his terms. Equivalent Norman-French is
employed in the Mirror where it is said "...there can be no crime or sin without a corrupt will..." 5 The
first systematic treatment of mens rea was provided by Hale. According to him penal liability was
based on "two great faculties, understanding and liberty of will." 6 iô one incurs penal liability for
doing an act "without intention of any bodily harm to any person." 7 Malice in fact "has become a
deliberate intention of doing some corporal harm to the person of another. 8 .Hall posits that : "the
consent of the will is that, which renders human "actions either commendable or culpable.. Mens rea
consists of two elements. One is the intent to do an act and second a knowledge of the circumstances
that makes that act a criminal offence. 10 Thus mens rea means the intendon to do a wrong act, with
concomitant knowledge of the material facts.1 In sum, the essential meaning of mens rea i.e. that
represented in the intentional doing of a morally wrong act, implying concomitant knowledge of the
1. Fowler v. Padget, (1798) 7J.R. 504 at 541.
2. (1837) 8 C & P, 136 at 139\
3. Pollock and Maitland, History of English Law, 470.
4. Wigmore, Harv. L.R. 1894. He has further observed that : "the owner of ah" animal, the
master of a slave was responsible because he was associated with it as owner, as master."
5. The Mirror of Justices, 138 (Seldon Society ed. 1893) Quoted in Hall (2nd ed.) 81.
6. I Hale, P.C.14, (1736) "...where there is no will to commit an offence, there can be no., just reason
to incur the penalty..." Ibid, at 15.
7. Ibid, at 39..........
8. Ibid, at 451.
3 , Ibid, at 14-15. : . ....
10. Devlin, Patrick; Statutory Offences; The Jl. of the Soc. of Pub. T. of L. p. 213.
material facts, has persisted for centuries. 2 But the concept of mens rea has changed with the advance
of the law and morals in general.
In England the common law doctrine of mens rea was not taken into consideration in many
statutory offences. This maxim still applies in common law offences under the earlier statutes but it
has no general application in case of modern statutory offences and these statutes are regarded
themselves to be prescribing the mental element which is prerequisite to a conviction. 3 However, the
above generalisation does not hold good now. The eclipse of the doctrine of mens rea might be visible
in certain discussions of the courts but the doctrine itself seems to have been revived with greater
vigour after a temporary eclipse as may be witnessed from the observations of Lord Goddard, C. J. :
"The general rule applicable to criminal case is actus non facit reum
nisi mens sit rea...it is of the utmost importance for the protection of the
liberty of the subject that a court should always bear in mind that unless
a statute either clearly or by necessary implication rules out mens rea as a
constituent part of a crime, the court should not find a man guilty of an
offence against the criminal law unless he has a guilty mind."4
Section 22(2f of the Road Traffic Act, 1930 provides that the driver of a
vehicle which collides with another must bring the fact of accident to the notice'
of the proper authority. The trailer of the appellant's vehicle collided with another
motor car. The driver had no knowledge of the collision but he was convicted
by the magistrate for his failure to report the accident. Setting aside his conviction
Lord Goddard, CJ. observed in Harding v. Price : >
"In these days when offences are nullified by various regulations and orders to an extent
which makes it difficult for the most law-abiding subjects in some way or at some time to
avoid offending against the law, it is more important than ever to adhere to this principle."5
Mens Rea and Statutory Offences The question whether the common law requirement of mens rea must be imported into every crime
defined in the statute even where it is not expressly mentioned as an ingredient has been discussed in a number of cases both English and Indian. R. v. Prince6 and Queen v.
Tolsoii1 are the two landmark decisions * on the subject. The conception of mens rea was introduced into the statutory offences by the judges by means of 'construction' without
any Parliamentary sanction. There are two schools of thought. One embodied in the judgment of Wright J., in Sherras v. De Rutzen* that "in every statute mens rea is to be
implied unless the contrary is shown; and the second is that of Kennedy, L. J., in Hobbs v. Winchester Corporation1 that you ought to construe the statute literally unless there is
something to show that mens rea is required. On either view mens rea is implied in certain statutes and not in others, although there are no words in the statute itself to show a
recognition of mens rea and judges provide for it on their own authority.1
For a better illucidation of the subject it would be useful to discuss some of the cases in detail.
The first of such cases is R. v. Prince.2 Henry Prince, the prisoner was charged under section 55 of the
Offence Against the Persons Act, 1861 for having taken one Annie Philips, an unmarried girl, being
under the age of 16 years, out of the possession and against the will of her father. In England it is an
1. Hall, General Principles of Criminal Law (2nd ed.) 83.
2. Ibid.
3. Stallybrass, (1936) 52 LQ.R. 60.
4. Brend v. Wood, (1946) 62 T.L.R. 462-463; See also Harding v. Price, (1948) All. E.R. 283.
5. Harding v. Price, (1948) All. E.R. 283.
6. (1875) L.R. 2 C.C.R. 154.
7. (1889) 23 Q.B.D. 168.
8. (1895) 1 Q.B. 918.
9. (1910) 2 K.B. 471. : . \
offence 'unlawfully to take or cause to be taken an unmarried girl, being under the age of 16 years out
of the possession and against the will of her father or mother or any person having the lawful care and
charge of her.' It was proved that the prisoner did take the girl out of the possession and against the
will of her father and also that she was under 16 years. All the facts necessary to support for
conviction existed except that the girl, though proved by her father to be fourteen years old looked
very much older than that and the jury found upon reasonable evidence that before the defendant took
her away she has told him that she was of eighteen ..years and ..thatjtfifi defendant bona fide believed
that statement, and that such belief was reasonable.
It was contended that although section 55 of the Statute under which this offence was created
did not insist on the knowledge, on the part of the prisoner thatjhe girl was under sixteen, as necessary
to constitute the offence, the common law doctrine of mens rea should nevertheless be applied and
that there could be no conviction in the absence of a criminal intent.
It was held that the prisoner's belief that the girl was eighteen years old is no defence. The
following judgment was delivered by Blackburn, J. :
"In this case we must take it as found by jury that the prisoner took an unmarried girl out
of the possession and against the will of her father, and that the: girl was in fact under the age
of sixteen, but that the prisoner bona fide, and on reasonable grounds, believed that she was
above sixteen, viz. eighteen years old. No question arises as to what constitutes a taking out of
the possession of her father; nor as to what circumstance might justify sucE taking as not being
unlawful; nor as to how far an honest though mistaken belief, that such circumstances as would
justify the taking existed, might form an excuse; for, as the case is reserved, we must take it as
proved that the girl was in the possession of her father and that he took her, knowing that he
trespassed on the father's rights and had no colour of excuse for so doing."
The question, therefore, is reduced to this : whether the words in section-55, that 'whosoever
shall take any unmarried girl, being under the age of sixteen, out of the possession of her father', are
to be read as if they were being under the age of sixteen, and knowing she was under that "age". No
such words are contained in the statute, nor is there the word 'maliciously', 'knowingly', or any other
word used that can be said to involve a similar meaning.
The argument in favour of the prisoner must, therefore, entirely proceed on the ground that, in
general, a guilty mind is an essential ingredient in a crime,
1. Devlin, Patrick; "Statutory offences", The S I . of-the Soc. of Pub. T. of Law (1958) at p. 208.
2. (1875) L.R. 2 C.C.R. 154.
G-NERAL INTRODUCTION
and that where a statute creates a crime, the intention of legislature should be presumed to be to
include knowingly, in the definition of the crime, and the statute should be read as if that word were
inserted, unless the contrary intention appears. We need not inquire at present whether the canon of
construction goes quite so far as above stated, for we are of opinion that the intention of the
legislature sufficiently appears to have been to punish the abduction, unless the girl, in fact, was of
such an age as to make her consent an excuse, irrespective of whether he knew her to be too young
to give an effectual consent, and to fix that age at sixteen.
But what the statute contemplates, and *i what I say is wrong is, the taking of a female of such
tender1 years that she is properly called a girl, and can be said to be in another's possession, in that
other's care or charge. No argument is necessary to prove this; it is enough to state the case. The
legislature has enacted that if anyone does this wrong act, he does it at the risk of her turning out to
be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he
had the father's consent, though wrongly, he would have no mens rea. So if he did not know she was
in anyone's possession, nor in the care or charge of anyone, in those cases he would not know he
was doing the act forbidden by the statute—an act which, if he knew she is in possession and in care
or charge of anyone, he would know was a crime or not, according as she was under sixteen or not.
He would not know he was doing an act wrong in itself, whatever was his intention, if done*
without lawful cause.
In this case a distinction was drawn between acts that were in themselves innocent but made
punishable by statute {malum prohibitum) and acts that were intrinsically wrong or immortal
{malum in se). In the former a belief, a reasonable belief, I in the existence of facts which, if true,
would take the case out of the mischief of the statute, would be a good defence; but in the latter case
such a belief was immaterial unless of course the law made it otherwise. The man who acted under
such erroneous belief took the risk and should suffer the consequence.
The same principle applies in other cases. A man was held liable for assaulting a police
officer in the execution of his duty, though he did not know he was a police officer. Why '? because
the act was wrong in itself. So also in the case of a burglary, could a person charged claim an
acquittal on the ground that he believed it was past six when he entered ?
It seems to me impossible, where a person takes a girl out of her father's possession, not
knowing whether she is or is not under sixteen, to say that he is not guilty; and equally impossible
when he believes, but erroneously, that she is old enough for him to do a wrong act with safety. I
think the conviction should be affirmed.
The Queen v. Tolson,1 is another important case on the subject. In this case the prisoner was
married to Mr. Tolson on September 11, 1880. Mr. Tolson deserted her on December 13,1881. The
prisoner and her father made inquiries about Tolson and learnt from his elder brother and from
general report that- he had been lost in a vessel bound for America, which went down with all
hands on board. On January 10, 1887, the prisoner supposing herself to be a widow, went through
the ceremony of marriage with another man. The circumstances were all known to the second
husband and the marriage ceremony was in no way concealed. In December, 1887, Tolson returned
from America. Thereafter, the prisoner was charged for offence of bigamy under section 57 of the
Offence Against the Persons Act, 1861, for having gone through the ceremony of marriage within
I . (1889) 23 Q.B.D. 168.

seven years after she had been deserted by her husband. The Jury found that at the time of the
second marriage she in good faith and on reasonable grounds believed her husband to be* dead.
Section 57 provides : "Whoever, being married, shall marry any other person during the life
of the former husband or wife shall be guilty of felony." Proviso to the same section lays down :
"nothing in this Act shall extend to any person marrying a second time whose husband or wife shall
have been continually absent from such person for the space of seven years past, and shall not have
been known by such person to be living within that time."
It was held that a bona fide belief on reasonable grounds in the death of the husband at the
time of the second marriage afforded a good defence of the indictment, and that the conviction was
wrong.
In this case the following principles were laid down :
(i) Although prima facie and as a general rule there must be a mind
at fault before there can be a crime, it is not an inflexible rule, and a
statute may relate to such a subject matter and may be so framed as to
make an act criminal whether there has been any intention to break the law
or otherwise to do wrong or not. There is a large body of municipal law
in the present day which is so conceived.
(ii) Prima facie the statute was satisfied when the case was brought
within its terms, and it then lay upon the defendant to prove that the
violation of the law which had taken place, had been committed accidentally
or innocently so far as he was concerned. Suppose a man had taken up by
mistake one of two baskets alike and of similar weight, one of which
contained innocent articles belonging to himself and the other marked
government stores, and was caught with the wrong basket in his hand. He
would by his own act have brought himself within the very words of the
statute who would think of convicting him.
(iii) At common law an honest and reasonable belief in the existence
of circumstances, which, if true would make the act for which a prisoner
is indicted an innocent act has always been held to be a good defence.
This doctrine is embodied in the maxim "actus non facit reum nisi mens,
sit rea". Honest and reasonable mistake stands in fact of the same footing
as absence of the reasoning faculty, as in infancy; perversion of that faculty,
as in lunacy. These exceptions apply equally in case of statutory offences
unless they are excluded expressly or by necessary implication.
(iv) It is a general rule that an alleged offender is deemed to have
acted under that state of facts which he in good faith and on reasonable
ground believed to exist, when it did the act alleged to be an offence.
In this case the accused acted in good faith upon reasonable and probable cause of belief
without rashness or negligence, therefore she is not to be considered as guilty as she was found to be
mistaken. In case of an offence of bigamy the accused can make a defence by proving a continuous
absence for seven years. And that even such an absence will not be a defence if the prosecution can
prove knowledge on the part of the accused, within seven years of the first marriage, that the first
wife or husband, as the case may be, was still, alive.
In R. v. Prince the prisoner knew that in taking the girl away from her father he was,
altogether apart from the question of her age, doing an improper nd immoral act, while in the
present case there was nothing wrong in the remarriage of the prisoner, who reasonably supposed
herself to be a widow.
Rex-v. Thomas Wheat and Rex v. Marion Stocks' is another important case on bigamy. In this
case Wheat's wife had committed adultery. In May, 1919 Wheat instructed his solicitors to obtain a
decree of divorce from his wife. On April 23, 1920 the sblicitors wrote : "We can now proceed with
the matter, and will lose no time over your petition," and in reply to a telegram sent by Wheat, the
terms of which were not in evidence, the solicitors wrote to him on July 1, 1920 : "We have your
telegram and hope to send your papers for signature in the course of a day or two." Wheat was a
man of little education and on receipt of that letter he believed that he was divorced. Wheat was
charged with having on July 21, 1920, married the prisoner Marion Stocks, his wife being then
alive, and the prisoner Stocks was charged with abetting Wheat by aiding in- the commission of that
offence. The Jury found that the prisoner in good faith and on reasonable grounds believed that
Wheat had been divorced at the time he went through the form of marriage with Stocks.
It was held that : "It is no. defence in law to an indictment for bigamy that the prisoner, at the
time of the alleged bigamous marriage, believed, in good faith and on reasonable grounds, that he
had been divorced from the bond of his first marriage, if in fact he had not been divorced."
Of course, it may afford a good reason for the infliction of a nominal punishment. This
decision is not a conflict with the decision in R. v. Tolson. In Tolson's case the accused believed on
reasonable grounds that her husband was dead, therefore she did not intend at the time of second
marriage to do the act forbidden by the statute—namely to marry during his life. Justice Stephen in
that case mainly relied upon the proviso which showed that mere separation for seven years has the
effect which reasonable belief of death caused by other evidence would have at any other time. The
judgment in Tolson, though influenced to a great extent by the proviso, proceeded mainly on the
application of the maxim "Actus non facit reum nisi mens sit rea."
In Comm. v. Presby,2 the doctrine of mens rea has been recognised and read into an American
Statute, although the definition of the offence did not imply a question of evil intent. In this case,
Presby, the defendant, a police officer had \toested one Harford, for being found intoxicated in a
public place. Later on it was found that the person so arrested was not intoxicated. The statute gave
power of arrest in respect of intoxicated persons only. The defendant was therefore, indidted for
wrongful arrest. It was argued that if the man arrested was not intoxicated, a mere belief, however
well founded, that the man was intoxicated could not be pleaded as a defence to the indictment.
Hoar, J. after stating the general rule that 'there can be no transgression of law in absence of a will to
commit an offence' disallowed the contention and observed as follows : "Now the fact of
intoxication, though usually easy to ascertain is, not in most cases a fact capable of demonstration
with absolute certainty. Suppose a watchman to find a man in the gutter stupefied and smelling very
strongly of spirituous liquors. The man may have fallen in a fit and some person may have tried to
to find a man in the gutter stupefied and smelling very strongly of spirituous liquors. The man may
have fallen in a fit and some person may have tried to relieve him by the application of stimulant,
1. '(1921) 2 K.B. 119.

2. 14 Gray 65.
and then have left in search of assistance. Or, in another case, the person arrested may, for purposes
of amusement or mischief, have been stimulating the appearance and conduct of drunkenness. Is the
officer to be held criminal, if using his best judgment and discretion and all the means of
information in his power, in a case where he is called upon to act, he makes a'mistake of fact and
comes to a wrong conclusion? It would be ^singular, indeed, if a man, deficient in reason, should be
protected from criminal1 responsibility, but another, who has obliged to decide upon the evidence
before him, and used in good faith all the reasons and faculties which he had, should be held guilty.
We, therefore, feel bound to decide that if the defendant acted in good faith upon reasonable and
probable cause of belief, without rashness or negligence, he is not to be regarded as a criminal
because he is found to have been mistaken."
In State of Maharashtra v. M.H. George,1 the Supreme Court considered the application of
the principle of mens rea in statutory offences. The accused M.H. George was a passenger from
Zurich to Manila in a Swiss plane. When the plane landed at the airport in Bombay on 28th Nov.,
1962, it was found on search that the respondent carried 34 kilos of gold bars on his person and that
he had not declared it in the "Manifest" for transit. By reason of a Central Government Notification
of the year 1948 the bringing of gold into India was prohibited except with the permission of
Reserve Bank. But by a notification of the Reserve Bank, gold, in through transit from place outside
India to places similarly situated, which was not removed from the aircraft except for the purpose of
transhipment was exempted from the operation of the notification of the Central Government. The
Reserve Bank of India on Nov. 8, 1962 by another notification modified its earlier exemption and it
was necessary that, the gold must be declared in the 'Manifest' of the aircraft. The respondent was
prosecuted lor bringing gold into India in contravention of section 8(1) of the Foreign Exchange
Regulation Act, 1947 read with the notifications issued thereunder and was convicted under section
23(IA) of the Act.
The Presidency Magistrate found him guilty but the Bombay High Court held that he was not
guilty on the ground that mens rea being a necessary ingredient of the offence, the respondent who
brought gold into India for transit to Manila did not know that during the crucial period such a
condition had been imposed which brought the case within the terms of the statute. On appeal by the
State the Supreme Court allowed the appeal and found the accused guilty for contravention of the
provisions of section 8(1) read with Notifications issued thereunder.
The following principles were laid down by the Supreme Court in this case : (i) The Act is
designed to safeguarding and conserving foreign exchange which is essential to economic
life of a developing country. The provisions have, therefore, to be stringent and so framed as
to prevent unregulated transaction which might upset the scheme underlying the controls;
and in a larger context, the penal provisions are aimed at eliminating smuggling which is a
concomitant of controls over the free movements of goods or currencies.
if a condition were to be read into section 8(1) or section 23(IA) of the Act qualifying the
plain words of the enactment, that the accused should be proved to have knowledge that he
1. A.I.R. 1965 S.C. 722.
was contravening the law before he could be held to have contravened the provision.
(iii) The very concept of 'bringing' or 'sending' would exclude an
involuntary bringing or voluntary sending. But if the bringing into India
was a conscious act and was done with the intention of bringing it into
India, the mere "bringing" constitutes the offence and there is no other
ingredient that is necessary in order to constitute a contravention of section
8(1) than that conscious physical act of bringing. If then under section 8(1)
the conscious physical act of "bringing" constitutes the offence, section
23(IA) does not import any further condition for the imposition of liability
than what is provided for in section 8(1).
(iv) Unless the statute either clearly or by necessary implication rules
out mens rea as a constituent part of a crime a defendant should not be
found guilty of an offence against the criminal law unless he has got a
guilty mind. Absolute liability is not to be lightly presumed but has to be
clearly established.
(v) Section 8 and the notifications do not contain an absolute
prohibition against bringing or sending into India any gold. They do not
expressly exclude mens rea. So far as the question of exclusion of mens
rea by implication is concerned, the law does not become nugatory if
element of mens rea was read into it for there would still be persons who
would be bringing into India gold with the knr wledge that they would be
breaking the law. In such circumstances no question of exclusion of mens
rea by necessary implication can arise.
(vi) Mens rea in the sense of actual knowledge that act done is
contrary to law is not an essential ingredient of the offence under section
8(1) read with section 23(IA) of the Foreign Exchange Regulation Act,
1947. Thus mere voluntary act of bringing gold into India without
permission of the Reserve Bank constitutes the offence.
Nathu Lai v. State of M.P.,1 is another important case on the point. In this case the appellant
had in stock 885 maunds and 2-1/4 seers of wheat for the purposes of sale without licence. He
contended that he had stored the foodgrains after applying for the licence and was in the belief that
it would be issued to him. He had also deposited the requisite licence fee. He was purchasing
foodgrains from time to time and sending returns to the Licensing Authority showing the grains
purchased by him. He was prosecuted for committing an offence under section 7 of the Essential
Commodities Act, 1955 for contravening an order made under Section 3 of the same Act. It was
held that : "Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may
exclude the element of mens rea, but it is a sound rule of construction adopted in England and also
accepted in India to construe a statutory provision creating an offence in conformity with the
common law rather than against it unless the statute expressly or by necessary implication excluded
mens rea. The mere fact that the object of the statute expressly or by necessary implication excluded
mens rea, or ibe mere fact that the object of the statute is to promote welfare activities or to
eradicate a grave social evil is by itself not decisive of the question whether the element of guilty
mind is excluded from the ingredients of an offence. Mens rea by- necessary implication may be
excluded from a statute only where it is absolutely clear that the implementation of the object of the
statute would otherwise be defeated. The nature of mens rea that would be implied in a statute
1. A.l.R. 1966. S.C. 43.

creating an offence depends on the object of the Act of the provisions thereof."
In the instant case the storage of foodgrains was under a bona fide belief that he could legally
do so. He did not, therefore, intentionally contravene the provisions of S. 7 of the Act or those of the
order made under S. 3 of the Act. Therefore he was not liable.
State of Gujarat v. D. Pandey,1 is a case on the Bombay Public Trusts Act, 1950 wherein
certain trustees were prosecuted for misusing trust money in violation of section 35(1) of the Act. It
was held that section 35(1) is a regulatory provision enacted with a view to safeguard the interest of
the public regarding trust money. It creates a quasi criminal offence and is an absolute offence. The
court cannot read into it the requirement of mens rea. It was observed that :
Unless a statute either.clearly or by necessary implication rules out mens rea as a constituent
part of the crime, a person should not be found guilty of an offence against the criminal law unless
he has got a guilty mind. But the language of a provision either plainly or by necessary implication
can rule out the application of that presumption. The court may decline to draw that presumption
taking into consideration the purpose intended to be served by that provision.
In Sweet v. Parsley,2 it was observed that where an offence is created by some statute, the
language of the statute should be read with this rebuttable presumption that the common law
doctrine that there can be no crime without mens rea, has not been dispensed with by the statute
concerned.
In R.S. Joshi v. Ajit Mills Ltd.? the Supreme Court observed that a person may be liable for
the penal consequences for the acts done by him whether he has done it with guilty mind or not, it is
a matter of common knowledge that for proper enforcement of statutory provisions, the rule of strict
liability is created and the acts falling in this category are punished even in the absence of guilty
mind.
In Union of India v. J. Ahmad,4 the question was whether in case of disciplinary proceedings
relating to services the misconduct of the employee in question can be treated in the category of
guilty mind. Replying the above question in negative the Supreme Court observed that grave or
habitual negligence in the course of performance of duty cannot be said to be accompanied with
guilty mind but it can be a misconduct with reference to disciplinary proceedings.
Exceptions to Mens Rea
The general principle is that although the statute is silent on the point, a requirement of mens
rea is to be implied. "Acts of Parliament are to be so construed, as no man that is innocent, or free
from injury or wrong be by a literal construction punished or endangered."5
Some less complex and less guilty state of mind that the usual mens rea is sometimes by statutory enactment but hardly by the common .law, made sufficient for the mental
1. 1971 Cr. L.J. 760 (S.C.).

2. (1969) 2 W.L.R. 470 (H.L.); See also Limchyi Ek v. Queen, 1963 A.C. 160.
?. (1977) 4 S.C.C. 94.
4. (1979) 2 S.C.C. 286.
5. Cited in Margate Pier Co. v. Hannam, (1819) 3 B & Aid. at 270; 106 E.R. at 663.
element in criminal guilt.1 These offences are known as crimes of strict liability. Such statutory offences are increasing both in number and importance. Yet they are rare.
The legislature is averse to create these offences except where (i) the penalty incurred is not great, but (ii) the damage caused to the public by the offence is, in comparison
with the penalty, very great, and (iii) where at the same time, the offence is such that there would usually be peculiarity and difficulty in obtaining adequate evidence of the
ordinary mens rea, if that degree of guilt were to be required.2 There is a large body of Municipal law almost in all civilised countries so framed as to makce an act criminal
whether there is an intention to break the law or not. These transgressions are not criminal in the strict sense of the term but are civil, in their nature and for special reasons
are termed as offence. Thus in some of the exceptional crimes, less than the usual mens rea suffices. Sherras v. De Rutzen,3 is the leading case on the point. The appellant, a
licensee of a public house, was prosecuted under section 19(2) of the Licensing Act, 18724 for having unlawfully supplied liquor to a police constable on duty without the
authority of a superior officer of such constable.
On July 16, 1894, the police constable in question, being then on duty entered the appellant's
house and was served with liquor by the appellant's daughter in his presence. Prior to entering the
house the police constable had removed his armlet, and it was admitted that if a police constable is
not wearing his armlet, that is an indication that he is off duty. He was a frequent visitor to the
appellant's house. Neither the appellant nor his daughter made any inquiry of the police constable as
to whether he was or was not on duty, but they took it for granted that he was off duty in
consequence of his armlet being off, and served him with liquor under that belief. The appellant
appealed to Quarter Session against his conviction. The Court of Quarter Sessions upheld the
conviction but stated this case for the opinion of the court. Day, J. was of the opinion that the
appellant had no intention to do a wrongful act; he acted in the bona fide belief that the constable
was off duty and therefore, the contention that he committed an offence is utterly erroneous. Wright,
J. also expressed the same opinion and observed as follows : "There is a presumption that mens rea
an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every
offence; but the presumption is liable to be displaced either by the words of the statute creating the
offence or by the subject-matter with which it deals, and both must * be considered : Nichols v.
Hall.5 One of the most remarkable exception was in the case of bigamy who had married after an
invalid Scotch divorce, which had been obtained in good faith, and the validity of which he had no
reason to doubt : Lolley's case.6 Another exception, apparently grounded on the language of a
statute, is Prince's case,7 where it was held....that a man was guilty of abduction of a girl under
sixteen, although he believed, in
1. Kenny, Outlines of Criminal Law, 43.
2. Ibid., at 43-44.
3. (1895) L.R. 1 Q.B.D. 918.
4. Sec. 16(2) of the Licensing Act, 1872 makes a "licensee liable to penalty for supplying any liquor or
refreshment whether by way of gift or sale to any constable on duty unless by authority of some superior
officer of such constable.
5. (1873) L.R. 8 C.R 322.
6. R. and R. 237.
7. (1875) L.R. 2 C.C.R. 154.
good faith and on reasonable grounds, that she was over that age. Apart from isolated and extreme
cases of this kind, the principal classes of exceptions may perhaps be reduced to three. One is a class
of act which...are not criminal in any real sense, but are acts which in the public interest are
prohibited under a penalty...' Another class comprehends some, and perhaps all, public nuisances 2
...lastly there may be cases in which, although, the proceedings is criminal in form, it is reaily only a
summary mode of enforcing a civil right 3...But, except in such cases as these there must in general
be guilty knowledge on the part of the defendant, or of some one whom he has put in his place to act
for him generally or in a particular matter, in order to constitute an offence."
In an earlier case Cmidy v. Le Cocy* it was held that the prohibition against selling liquor to
a drunken man imposed by S. 13 of the Licensing Act, 1872 is absolute and that knowledge of the
condition of the person served is not necessary to constitute the offence. Further the existence of a
bona fide mistake as to the condition of the person served is not an answer to the charge but is a
matter only for the mitigation of penalties that may be imposed. 5 The two decisions, though,
apparently, contradictory may be reconciled by taking into consideration the fact that in Shera's case
the policeman was not wearing the arm'et which would enable a publican to think that the
policeman was on duty or not. Where as in Cundy's case customer's drunkenness may be discovered
by a publican, much more by a licensee who is accustomed to come to contact with such people. A
policeman on duty may even on inquiry say that he is off duty.
The question of requirement of mens rea in statutory offences was reviewed by the Privy
Council in Bank of New South Wales v. Piper.'' In this case it was held that in order to constitute a
crime, whether common law or statutory there must be mens rea on the part of the accused,
although he may avoid conviction by showing that such mens rea did not exist. It was further
observed that :
"...the question whether a particular intent is made an element of statutory crime, and
when that is not the case where there was an absence of mens rea in the accused, are
questions entirely different, and depend upon different considerations. In cases where the
statute requires a motive to be proved as an essential element of the crime, the prosecution
must fail if it is not proved. On the other hand, the absence of mens rea really consists in an
honest and reasonable belief entertained by the accused .of the existence of facts which, if
true, would make the act charged against him innocent."7
APPLICABILITY OF MENS REA TO INDIAN PENAL LAWS The common law doctrine of mens rea has no general application in India, for the law in India is codified
and offences are carefully defined so as to indicate in the definition itself the precise requirement of mens rea which is essence of a particular offence. Notwithstanding that
the offences in the Indian Penal Code are defined with great care and precision and the Chapter on General Exceptions is very comprehensive, the application of the doctrine
1. Davies v. Harvey, L.R. 9 Q.B. 433. Several such instances are found in Attorney General v.
Lockwood, 9 M a u d W 378; R. v. Woodrmv, 15 M and W 404; Fhzpatrick v. Kelly, L.R. 8
Q.B. 337; Roberts v. Egerton, L.R. 9 Q.B. 494; R. v. Marsh, 2 B. and C. 717; R. v. Bishop,
5 Q.B.D. 259.
2. R. v. Stephens, L.R. 1 Q.B. 702; R. v. Medley, 6 C. and P. 292.
3. Barnes v. Akroyd, L R. 7 Q.B. 474; Modem v. Porter, 7 C.B. (N.S.) 641; 29 L.J. (M.C.) 213; Lee v.
Simpson, 3 C.B. 871; Hargreaves v. Diddams, L.R. 10 Q.B. 582.
4. (1884) 13 Q.B.D. 207.
5. Ibid.
6. (1897) A.C. 383 at 389-90.
7. These observations were approved in Reynolds v. G.H. Austin & Sons Ltd., (1951) 2 K.B.
135.
may on occasions be found useful in remedying defective and incomplete definitions or at least interpreting them or where it is not expressly excluded by the terms of the
statute itself. The Indian Penal Code gives effect to the doctrine of mens rea in two ways. First, the Chapter dealing with General Exceptions which controls all the offences
defined in the Code as well as the offences under special and local laws deals with the general conditions which negative mens rea, and thereby provide a sufficient ground
for exemption from criminal liability. This is how the Code negatively gives effect to the doctrine of mens rea because under these exceptions a large number of cases have
been excluded where there is an absence of evil intent in one form or another. Secondly, every offence in the Indian Penal Code is carefully defined so as to include the
precise evil intent which is the essence of a particular offence. This has been done by using such words as denote the requirement of mens rea such as voluntarily,
intentionally, knowingly etc. These words qualify the consequences of the act and not the act itself.
There are some section in the Indian Penal Code where the words indicating evil intent are
not used. Such cases are of two kinds :—
(i) Where the acts with their consequences are so harmful to the
society or the State that it had been thought just and expedient to punish
those acts irrespective of the intention to cause those consequences; such
as waging war against the Government of India, sedition, kidnapping and
abduction.
(ii) Where the acts themselves are of such a character that they raise
a violent presumption that whoever willed the act must have intended the
consequences; such as counterfeiting of coins and government stamps.
On an analysis the definitions under the Code are found to comprise of the following
elements :—
(a) A human being;
(b) Evil intent : that is an intent on the part of such human being to cause a certain
consequence considered injurious to individuals or to society;
(c) The act willed;
(d) The resultant evil consequence;
(e) A knowledge of the existence of such facts. This element is necessary only
where the intended consequence is not injurious by itself, but is injurious in conjunction with
certain other facts.
The second element i.e., the evil intent is indicated generally by the use of words
intentionally, knowingly, voluntarily, dishonestly, fraudulently, maliciously, malignantly, corruptly,
recklessly, negligently, wantonly and so on.
Words denoting Mens rea
Of the many words used to denote mens rea under the Indian Penal Code, the words
voluntary,1 reason to believe,2 dishonestly,3 and fraudulently4 are defined in the Code itself. Others
1. Section 39.
2. Section 26.
3. Section 24.
4. Section 25.
though frequently used in the Code are not defined in the Code. The meaning of those words that
are defined in the Code will be discussed with the explanation of relevant section. But those words
that are not defined in the Code shall be explained here.
Corruptly.—'Corruptly' occurs in sections 196, 199, 200, 219 and 220. Corruptly denotes
impropriety brought about by bribery, undue influence resulting in acts which are not consistent
with the proper discharge of official duty or the right of others. The words "corrupt" and "corruptly"
usually imply that an act is done dishonestly without integrity for the sake of unlawful gain or
advantage. It also implies moral turpitude and intentional fraud and is synonymous with intentional
wrong doing.1
Malignantly and Maliciously.—'Malignantly' occurs in sections 153 and 270 of the Indian
Penal Code. It is synonymous with 'maliciously'. 'Maliciously' occurs in sections 219, 220 and 270.
A thing is done 'maliciously' if it is done wickedly or in.a depraved, perverse or malignant spirit or
in a spirit regardless of social duty and deliberately bent on mischief. Russel defines 'malice' to be
any formed design of doing mischief. Stephen calls it only a vague general term introduced into the
law,2 while Miller calls it a 'wrongful act done intentionally without just cause or excuse.' 3 'Malice'
in its ordinary sense means any wicked or mischievous intention, a depraved inclination to mischief
or a wanton disregard of the safety and rights of others. But it does not mean in law, as it means in
common parlance, any spite or ill-will against a person.4
Wantonly.—'Wantonly' occurs in section 153. It means doing a thing recklessly or
thoughtlessly without regard to its consequences. It implies a state of mind that is heedless, without
excuse, regardless of the rights of others, reckless and perverse. 5 Thus to kill a cow in an open place
would be a reckless or thoughtless act and therefore a wanton act; but if the act is not illegal,
however wanton or undesirable it may be, there could be no offence under section 153. 6 Where the
accused published a poem giving an account of Hindu-Muslim riot in Bombay in 1883, exalting
thereby Hindu community for the resistance offered by them to the Mohammedan rioters and
exhorted them to fight against and not be afraid of death, he was held not liable under section 153
for his composition could not be regarded as an illegal act, nor was its publication malignant or
wanton within the meaning of section 153.7
Rashly and Negligently.—These words are used in the Penal Code not to denote a positive
evil intent but to denote that want of care with which people of reasonable prudence are expected to
act and the want of which is culpable. Rash and malignant acts are generally those which are done
in haste without due deliberation and caution. They are not premeditated. H.S. Gaur brings out the
distinction between the two terms as follows :
"It produces a result which the offender never expected and which he
may most regret. But he is punished not for the effect produced which he
could not perhaps foresee but for the manner of doing the act which was fraught with danger.
1. Burdwick, The Law of Crime, Vol. 1. pp. 143-144.
2. Stephen, History of English Criminal Law, Vol. II. pp. 118-19.
3. Miller, Handbook of Criminal Law, 69.
4. Holmes, Common Law, 52.
5. Burdwick; The Law of Crime. Vol. I, pp. 142-143.
6. Kari, A.I.R. 1952 Pat. 138.
7. Kulwnji, 18 Bom. 758.
The two terms "rash" and "negligent" are closely allied, but they are nonetheless,
distinguishable. In cases of negligence the party does not perform an act to which he is
obliged; he breaks a positive duty, he does not advert to the act which it is his duty to do. In
rashness the party does not act which he is bound to forbear; he breaks negative duty. Here
he adverts to the act but not to the consequences of the act he does.. Both in rash as well as in
negligent acts no thought is bestowed on the consequence. In the one, there is knowledge of
the consequence, but there is over-confidence which makes one believe its happening
unlikely. In fhe other the consequence is never adverted to."1
These words are used in many sections of the Indian Penal Code. 2 The distinction between
the two terms is not of much practical importance because generally in the Penal Code the two
terms are used together. All these sections have one common feature, that the act is not
premeditated. The question of liability for negligence cannot arise until it is established that the man
who has been negligent owed some duty to the person who seeks to make him liable for his
negligence.3 Simple lack of care such as will constitute civil liability is not enough; for purposes of
criminal law a very high degree of negligence is required before the felony is established.4
In English law "culpable rashness is acting with the consciousness that mischievous and
illegal consequences may follow, but with the hope that they will not, and often with belief that the
actor has taken sufficient precautions to prevent their happening." 5 For example : A, acting as a
surgeon, physician or midwife, causes the death of a patient by improper treatment, arising from
ignorance or inattention. A is not criminally responsible unless his ignorance, or inattention or
rashness is of such a nature that the jury regard it as culpable under all the circumstances of the case.
It makes no difference whether A is or is not a properly qualified practitioner.
IV
SOCIO-ECONOMIC OFFENCES
Introduction
Meaning and Nature
Offences may be divided into two classes : (a) Traditional offences, e.g. theft, robbery,
dacoity and murder etc. and (b) Socio-economic offences. Socio-economic offences are new form of
criminality, in which upper and middle class people are involved and is committed by them in the
course of their occupations. Sutherland has named these crimes as 'White Collar Crimes', while
others have described it with different names i.e. 'Public Welfare Offences', 'Regulatory Offences',
and 'Crimes of Strict Liability'. This form of criminality
1. Gour, H.S.; Penal Law, Vol. I (5th ed.) p. 1389.

2. Sections 279, 280, 283, 284, 285, 286, 287, 288, 289, 304A, 336, 337 and 338.
3. In Le Neve v. Gould, (1893) 1 W.B. 491 at 497. See also Stephen's Digest of Criminal Law,
Art. 232; "Every one upon whom the law imposes any duty, or who has by any wrongful
act taken upon himself any duty, tending to the preservation of life, and who neglects to
perform that, duty, and thereby causes the death of any person commits same offence as if
he had caused the same effect by an act done in the state of mind as to intent or otherwise,
which accompanied the neglect of duty."
4. Andrews v. D.P.P., (1937) A.C. 1983.
5. In re Nidamarli Nagabhusanam, 7 Mad H.C.R. 119 Justice Holway.
iNDiAN PENAL CODE
has spread all over the world in different degrees. The incidence and magnitude of such offences is
much greater in developed countries than in developing countries. Even the under-developed
countries are not free from this vice.
Socio-economic offences are defined as those crimes which either affect the health and
material welfare of the community as a whole or the country's economy and by and large are
committed not by low class people but invariably the middle class and the elite of the community,
most often during the course of their occupation i.e. trade, profession, commerce or business.' The
following are chief characteristics of socio-economic offences :
(1) The socio-economic offences are considered graver wrong than traditional
offences because they affect not only the health and material welfare of the individual but
also the economic structure and social fabric of a nation.
(2) Unlike traditional offences, socio-economic offences are committed by middle
and upper class people of the society in the course of their trade, business or profession.
(3) In traditional offences, the motive behind the commission of such offences are
hate or lust, while in socio-economic offences the motive is greed for money.
(4) Socio-economic offences are committed by way of fraud, misrepresentation etc.
rather than force and the act is deliberate and wilful. Thus socio-economic offences are not
committed in emotions.
(5). Traditional offences are the outcome of guilty or criminal mind while socio-
economic offences are the product of a corrupt mind. Thus corruption is the root cause of this
new criminality.
(6) In reference to a common man, socio-economic offences do not carry with them
any stigma. On the other hand, traditional offences are considered carrying stigma involving
disgrace and immorality.
Scope of socio-economic crimes

In England, under the title 'Public Welfare Offences', Williams2 has included the offences
relating to sale etc. of certain articles of inferior quality or at excessive prices, and certain acts
incidental thereto, keeping unlicensed mental houses, possessing fictitious stamps, failing to provide
safe conditions of work and certain offences connected with road traffic. However, he has conceded
that this list is not exhaustive.
Sutherland3 has branded the following acts as 'white collar crimes'— Promulgating false or
misleading advertisement, illegal exploitation of employees, mislabelling of goods, violation of
weights and measures statutes, conspiring to fix prices, selling adulterated foodstuffs, evading
corporate taxes, misrepresentation in financial statements of corporations, manipulation in stock
exchanges, commercial bribery, bribery of public officials directly or indirectly to secure favourable
contracts and legislation, embezzlement and misapplication of funds, illegal sales of alcohol and
narcotics, performing illegal abortions, illegal services to underworld criminals, fraudulent reports
and testimony in accident cases, extreme cases of unnecessary treatment, knowingly approving false
claims (by insurance agents), infringement of patents, trade marks and copyrights and unfair labour
practices.
1. Mahesh Chandra; Socio-economic Crimes, p. 72.

2. Williams. G.; Criminal Law, (2nd ed. 1961), pp. 234-235.
3. "White Collar Criminality" : American Sociological Review, 1940, Vol. 5. pp. 1-12.
On the other hand, Sayre1 has classified 'Public Welfare Offences' under eight categories—
i.e. (1) illegal sale of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sale of
misbranded articles, (4) violations of anti-narcotic acts, (5) criminal nuisance, (6) violations of
traffic regulations, (7) violations of motor vehicle laws, and (8) violation of general police
regulations passed for safety, health or well being of the community. However, he has not included
the following acts within the ambit of Public Welfare Offences, i.e. (a) offences against taxation
laws, custom and foreign exchange laws, violations of corporate laws, and misuse of their positions
by public servants.
The socio-economic crimes are also listed under the following thirteen heads 2—(1) evasion
and avoidance of lawfully imposed taxes, (2) adulteration of foodstuffs, drugs and cosmetics, (3)
racketeering, profiteering, black-marketing and hoarding, (4) bootlegging and violation of anti-
narcotic legislation, (5) smuggling and other violations of foreign exchange regulations, (6)
violations of standards, weights and measures, (7) violations of rationing and guest control orders,
(8) trafficking in licenses, permits and quotas, (9) embezzlement, misappropriation and frauds and
other malpractices including sharepushing, monopolistic controls in the administration of corporate
and other bodies, (10) bribery, corruption, favouritism and nepotism in public services and by
persons in high authority, (11) violations of specifications in public property, (12) professional
misconducts and, (13) other miscellaneous offences calculated to prevent or obstruct the economic
development of the country and endanger its economic health.
Mahesh Chandra has claimed the above list as exhaustive though there is no scientific basis
for this classification.
Genesis of socio-economic crimes
Traditional crimes have been in existence since the human civilization but scientific and
technological advancement has contributed to this new form of criminality commonly known as
socio-economic crimes. Socio-economic criminality is the product of industrial revolution, although
Renaissance and Reformation also have contributed to the emergence of these crimes in no small
measure. Renaissance had made the people irreligious. The fear of God was lessened in favour of
money and material things. Money became the objective of entire human activity. The ethics and
moral values were thrown away in pursuit of money and all kinds of fraud, misrepresentation came
to be committed by the people in the course of their trade, commerce, business and profession. The
theory of natural rights and policy of laissez faire restrained the State from interfering in the
material pursuits of the individuals. Consequently this new criminality multiplied many times and
engulfed the whole world.3
In India, socio-economic crimes are of recent origin. It started taking some shape during the Second World War. Our country was gripped with many problems in
1947 at the time of independence. After independence "the era of planned development started in order to fulfil the aspirations of the people as given in the preamble of our
Constitution. This naturally multiplied not only scientific and technological development but also increased industrial activity. The state also joined in industrial and
commercial activity and as a result industrial public sector came into existence. The circumstances at that time served the fertile ground for the emergence of socio-economic
criminality. After a very short period the socio-economic criminality multiplied beyond imagination. Criminal jurisprudence underlying Indian Penal Code was considered
ineffective to fully and effectively meet the challenges posed by this new variety of criminality. In consequence, the State adopted a new approach different from traditional
1. "Public Welfare Offences" by Francis B. Sayre, 33 Columbia Law Review, pp. 55-58.
2. Mahesh Chandra; Socio-Econoinic Crimes, p. 76.
3. Ibid. p. 4.
criminal jurisprudence to deal with this new criminality. A lot of legislative measures were taken. Some important legislations are : The Prevention of Corruption Act, 1947,
The Anns Act, 1959, The Dangerous Drugs Act, 1930, The Prevention of Food Adulteration Act, 1954, The Essential Commodities Act, 1955, The Foreign Exchange
Regulation Act, 1973, The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, The Drugs (Control) Act, and The Preventive Detention
Act, 1980.
The above legislative measures relating to socio-economic offences differ with traditional
crimes in two important aspects :
(1) Requirement of mens rea is being curtailed in the context of socio-economic
offences.
(2) A minimum punishment specially imprisonment is needed to be imposed upon
the defaulters to have a deterrent effect.
Socio-economic crimes and Mens Rea
Under the traditional criminal jurisprudence the criminal liability was incorporated in the well
known common law maxim, actus non facit reum, nisi mens sit rea, meaning that an act does not
make one guilty unless there be guilty intention. Thus for imposing penal liability two conditions
must be satisfied, i.e. a wrongful act and a guilty mind. Both the conditions must be simultaneously
satisfied. Thus mere doing of a wrong and prohibited act is not enough in itself to fix criminal
liability, unless it is coupled with guilty mind. In case of traditional offences, generally speaking,
liability is not absolute and is rather related to the intention of the wrong-doer.
However, jvith respect to socio-economic offences, the tendency of the legislature is: to
^curtail the requirement of mens rea for criminal liability. The harm done by these offences are
greater than that of traditional crimes. They are graver than that of traditional crimes. They affect
the morality, health and welfare of the people as a whole and have a tendency to undermine the
economic fabric. Therefore,, the policy of the legislature in such cases is not to be lenient in the
matter of their prevention, control and punishment and the wrong-doer is not allowed to escape
unpunished. The policy can be implemented only if the penal liability in such cases is treated as
strict i.e. without reference to mens rea. However, the element of guilty mind is ever present in
socio-economic offences but it is very difficult to prove it legally. While in such offences, actus
reus may be easily proved. Therefore, it is essential and necessary to formally exclude the
requirement of mens rea from the socio-economic offences. In such cases the burden of the
prosecution is only to prove the actus reus and the burden of proving innocence lies on the accused.
With reference to socio-economic offences, the attitude of the Supreme Court in relation to
mens rea was that it is an essential ingredient of an offence.1
1. Nathu Lai's case, 1965 S.C.R. 322; State of Maharashtra v. MM. George, A.I.R. 1965 S.C. 722 and
Mangaldas v. State of Maharashtra, A.I.R. 1966 S.C. 128.
Doubtless, a statute may exclude the element of mm? rea, but it is a sound rule of construction
adopted in England and also accepted in India to construe a statutory provision creating an offence
in conformity with the criminal law rather than against it, unless the statute expressly or by
necessary implication excluded mens rea. The mere fact that the object of a statute is to promote
welfare activities or to eradicate a great social evil is by itself not decisive of the question whether
the element of guilty mind is excluded from the ingredient of an offence. Mens rea by necessary
implication may be excluded by the statute only where it is absolutely clear that the implementation
of the object of the statute would otherwise be defeated. Thus, the courts proceed with initial
presumption in favour of the need for mens rea but are prepared to dispense with mens rea if it is
ascertained clearly or by necessary implication to be gathered from the language used by the
legislature, objects and purposes of the enactment.
Socio-economic Crimes and Punishment
Every criminal wrong creates a penal liability, commonly known as punishment. The
punishment may be either monetary or physical. Monetary punishment is expressed in the form of
fine or confiscation of property while physical punishment consists of deprivation of life or liberty
of the wrongdoer.
The object behind all the punishments is deterrence, prevention, reformation and retribution.
However, the primary and principal purpose has always been deterrence. The same sentence may
serve all the above four purposes of punishment. This is so in case of imprisonment. By detaining in
jail, it is made to realise that he was suffering for his crime, which is both a retribution and
deterrence, he is also kept out of circulation thereby preventing the recurrence of crime during the
period of detention and simultaneously he is educated in jail to reform him for rehabilitation.
Traditional crime was considered to be the product of certain physical, environmental or
sociological maladjustments of the wrong-doer. Therefore, in such cases reformative effort must
also be made. On the contrary, socio-economic criminality is not the outcome of any maladjustment
but it is the product of greed for money. Their effect is not confined to any particular individual but
they affect the health and welfare of the entire community and sometimes even the entire nation.
Therefore, strict and effective handling is necessary to meet the retributive and deterrent purposes of
punishment. According to Bentham, the evil of punishment must be made to exceed the advantage
of the offence. In reference to socio-economic criminality, no amount of fine, howsoever high,
would exceed the advantage of the offence and therefore, pecuniary punishment would not meet the
requirement of justice, because these offenders have money in plenty. Further, by pecuniary
punishment no stigma is attached and offenders are not looked down upon in society.
In order to control this criminality the punishment of imprisonment would be appropriate.
This would have a deterrent effect on the offenders. Therefore, the legislature must provide
sufficient and minimum imprisonment as punishment in statutes dealing with socio-economic
offences. This minimum mandatory imprisonment would meet the ends of justice. As such it would
also attach a stigma of jail to these perpetrators of crime. Legislatures in India are conscious of this
requirement and have adopted mandatory minimum punishment in the Prevention of Corruption
Act, 1947, the Prevention of Food Adulteration Act, 1954, and a few others. It is hoped that in due
course of time, the legislature shall also extend this form of punishment to other socio-economic
offences also.
V. CAUSES OF CRIME
Prof. Frank Tannenbaum said, crime is eternal, it cannot be abolished except in a non-
existent Utopia.' The Italian criminologist Giorgin Florita says that like sin, crime is normal in
society and it is our sanctions and laws made by man that are abnormal. 2 The traditional approach to
causation of crime has been socio-economic. But there are many more factors which contribute
considerably to the crime causation. A brief analysis of crime causation is discussed in this part.
(1) Constitutional school.—Hooton and Sheldon are pioneers of this
school. The contribution of Positive School of Criminology was to transfer the
emphasis from the crime to the criminal. According to them heredity of an
individual motivates him to commit crime. Criminality in twins has been
advanced as the proof that heredity is of the utmost importance in explaining
anti-social behaviour. The endocrinologists say that persons become criminals
because of the malfunctioning of one or more of the ductless glands. 3 But we
find many criminals whose glands function normally and many law abiding
citizens suffer from certain glandular aberrations. The opposite view is that there
is not the slightest evidence to believe that any one inherits a tendency to commit
crimes. In their view crime is a social condition not a biological condition.
Hooton attempted to show that crime and other forms of anti-social behaviour due almost
exclusively to physical and racial factors. Only by sterilizing these defective types and breeding a
better race it is possible to check the growth of criminality. It is the biologically inferior, the
organically unadaptable, the mentally and physically stunted and warped, and the sociologically
warped, who arc responsible for the majority of the crime committed.
The thesis of Professor William H. Sheldon is that behaviour is a function of body structure,
and with careful measurement, and interpretation, fairly accurate predictions concerning the
individual's behaviour can be made. Admittedly, the individual interacts socially as a biological
organism and his unique organic structure bears a direct causal relation to the manner in which he
plays his role within the social group.
Mental retardation and crime.—According to Cari Murchison the notion that criminals are
mentally retarded or at least below the average in intelligence is based on religious dogma and there
is no scientific justification for this notion. 4 Feeble mindedness is not the universal factor in
delinquency. Even inferior intelligence cannot be considered outstanding feature of the personality
of delinquent.
Many personality problems of children and adults are developed by physical handicaps or
other such anomalies. Compensatory behaviour often develops in itich a manner that forms of
delinquency result. Such disfigurement often produces a complex in the individual that the world
will not accept him. This deformity alone is not responsible but is a contributory factor to crimes.
(2) Geography and crime causation.—Geographers maintain that climate
1. "Foreword" to Barnes and Teeters, "New Horizons of Criminology", 1st Ed. (1943) p. V.
2. Giorgin Florita, "Enquiry into the Causes of Crime". J. Crim. Law Vol. 44 No. 1 (May-June 1953) pp 1-
16.
3. Barnes and Teeters, 'New Horizons in Criminology' (3rd ed.) p. 128.
4. Ibid., p. 135.
and topography exercise considerable influence on behaviour. 1 Montesquieu said,

'Criminality increases in proportion as one approaches the equator and
drunkenness is more prevalent as one approaches the poles. Crimes against the
person were not prevalent in warm climates and crimes against property more
numerous in cold areas. It should be kept in mind that while all persons in a
similar area are exposed to the same geographical conditions, they show different
behavioural patterns. ,
It is also said that crime rates are higher in cities than in rural areas. The reason for more
juvenile crime in cities is the inadequate' provision for normal physical expression on the part of
youth. Those who indulge in gambling have a far greater prospect of remunerative returns in city
communities. Liquor consumption and drinking habits are relatively more common in the cities.
Drug addiction is more prevalent in cities and people resort to drugs in order to dull the strains and
distractions of city life.
Rural culture has also its effects on the individual. The value and respectability of work, of
family stability, the land as indicator of status are all parts of rural pattern. 2 Its effect on the
individual provides conformity and acceptance of laws.
But at the same time many minor offences are left unreported and undetected in rural areas.
So, much of the difference between rural and urban data is due to this fact.
(3) Economic factor and Crime causation.—Poverty is said to be one of the causes of
crime.3 But poverty alone is hardly a cause of crime. This is evidenced by the courage, fortitude
honesty and moral stamina of thousands of poor parents, who would rather starve than do wrong
and who inculcate this attitude in their children. 4 Even in those neighbourhoods where poverty and
wretched housing conditions prevail, crime in' the majority of residents is non-existent and most of
the children grow up to be reasonably good citizen.
Many crimes other than those of violence may be traced to economic causes—greed and not
need. It is not correct to say that most of those who commit such crimes do so because of hunger.
The main cause is that criminals are not satisfied with their meagre income from lawful pursuits.
Many studies in America have revealed that the congestion of poverty-stricken areas and the lack of
adequate recreational facilities have fostered a criminal attitude on the part of youngsters. Actually
it is not the poverty but the contrast that is the disturbing element. Many people commit crime
because of envy and urge to live a rich and comfortable life.
The question is, why living under the same environmental conditions, it is some and not all
the children,who become delinquent. Those who turn out to be criminals are such who at some
stage had been blocked in needs and those suffered frustration, while non-delinquents had nearly
always been without any such acute frustration.
Differential treatment ,by law enforcement agencies to the detriment of minority groups and
to the poor is almost universal but it is most marked in the urban centres. Administrative process is
more favourable to the rich than to the poor.
1. Barnes and Teeters, 'New Horizons in Criminology' (3rd ed.) at p. 143.
2. George B. Void, 'Crime in City and Country Areas', The Annals Vol. 217 (September 1941) pp. 38-45.
3. Barnes and Teeters, 'New Horizons in Criminology' (3rd ed.) p. 147.
4. Ibid, at p. 148.
Poverty-stricken homes cannot inspire socially acceptable behaviour, especially when

children from such homes come in contract with poor frustrated individuals living in the same
neighbourhood who resent any display of wealth or comfort on the part of rich people. It is
submitted that poverty alone does not force a person to commit a crime, but it does produce the
conditions most conducive to crime both personally and socially. It is envy and ambition rather than
hunger or cold that stimulates many petty crimes. It is not lack of clothing but lack of expensive
clothing that tempts hundreds of girls to become prostitutes.1
(4) Sociological theories.—Man is an organic creature and therefore,
behaves according to the general laws of the organic world. 2 According to Shaw
high rates of crimes are usually found in the congested and disorganised urban
area lying adjacent to the central business and ware-house areas and the lowest
rates in the outlying suburbans and residential districts. In their view group
delinquency is deeply embedded in the roots of modern community life. The
competing values of modern life confuse the growing boy and encourage him to
seek a life of excitement in which he can gain a satisfying status with his kind.
Sutherland says, when persons become criminals they do so because of contacts with
criminal patterns. Any person inevitably assimilates the surrounding culture unless other patterns
are in conflict. This theory fails to give any importance to the biological make-up of the individual,
nor does it make any provision for evaluating or weighing the influences in the environment that
impinge upon the structure of that individual.
R. Taft is of the view that in any culture that is highly competitive and materialistic in which
the striving for prestige and status is so strongly impelled by social forces much crime must take
place. He, however, fails to explain why the majority of American people do not succumb to the
materialistic and arrogant culture.3
Some other sociologists maintain that criminal is a deviant who has been unable to adjust
himself to conventional sanctions imposed by the society due to inadequate and unfortunate'
interactions with parents and primary group contacts.4
This theory also fails to explain all sorts of criminal behaviour specially randum individual
delinquency of crime, which is based largely on personal conflict or disorganisation. Nor does it
explain compulsive crime. No one theory can be expected to explain all criminal behaviour. "All
crime" is a concept as broad as that of "all social behaviour". The sociologists have been specially
helpful in describing the condition of environment that tend to precipitate personal hostility, conflict
or frustration.
(5) Minority tensions.—-Tension exists in any area, where a minority
threatens the status or the way of life of the dominant group. 5 Crime causation
resolves into one of cultural non-assimilation and social maladjustment affected
by pure prejudice and differential treatment rather than to any inherent criminal

2. Ibid, at p. 154.
-3. Ibid, at p. 160.'
4. Ibid, at p. 161.
5. Ibid, at p. 163.
G£VE=A- MTCOUCTOS
lender.cies residing in any specific foreign group or combination of groups. 1 In

America Negroes commit more crimes than Whites. Gunnar Myrdal attributes
lbs tendency to discrimination, poverty, ignorance of the law, and lack of
influential connections and the existence of the slave tradition and the caste
situation. Prof. Taft also sees similar reason, e.g. differential treatments by police
and court, faulty education, family disorganisation and despair in attempting to
accommodate to urban life, in higher criminality rate among the Negroes.
Economic factors also play an important role. Marvin E. Wolfgong concludes that
there is a significant association between race and homicide but he does not offer
any explanation.2 *
(6) Influence of Home.—Lack of parental control and absence of parental insight provide
the basis for the criminal behaviour of their children.3 Poor housing is corelated with crime but
thousands of parents living, in sub-standard homes manage to make their children to be useful
citizens.4 Of course confused homes are not healthy places for children.
The home has primary task to fulfil for its young : to shelter and^ nourish infancy in comfort,
without inflicting damage of premature anxiety, enable the child to win health, virility and social
esteem; to educate it to meet behaviour codes of the community to respond effectively to human
situations which produce the great emotions, love, fear and anger. 5 Broken homes whether
psychologically or physically provide a congenial soil for criminality to develop. It is the home
where parents reside. Where there is constant bickering, little respect for the rights of each
individual and where the child is "pushed around" or ridiculed, the criminality has a favourable
climate. In such homes the child is too often rejected, never having the genuine experience of
"belonging" and becomes as a result desolate, anxious, restless or often hostile.
There are two types of broken homes : first, where one parent is missing, making home life a
typical in carrying on its responsibilities towards the individual members and second
Psychologically broken, or disorganised, home where cross purposes are more conspicuous than
harmony. Psychologically broken homes contribute more to delinquency than the physically broken
homes. Prof. Charles W. Coulter lists such disorganised homes as follows6—
(1) Homes with criminal patterns^
(2) Homes in which there are unsatisfactory relations because of domination,
favouritism, non-solicitude, over-severity, neglect, jealousy, a step parent or other interfering
relative;
(3) Homes in which one parent has a physical or mental disability, invalidism,
feeblemindedness, blindness, deafness, psychoneurosis;
(4) Homes socially or morally mal-adjusted because of difference'of race, religion,
conventions and standards, or an immoral situation;
(5) Homes under economic pressures, unemployment, low income,

2. Marvin E. Wolfgong, "Patterns in Criminal Homicide (Philadelphia University of Pennsylvania
Press, 1958) pp. 31-32. , -
3. Barnes and Teeters, 'New Horizons in Criminology' (3rd ed.) pp. 177-178.
4. Ibid, at p. 180. . ■ V
5. Dr. Miriam' Van Waters, Youth in Conflict (New York) : The New Republic 1925, p. 64" (Quoted
in Barnes and Teeters at p. 180).
6. Quoted in Barnes and Jeeters, 'New Horizons in Criminology' (3rd ed.) p. 184.
homes in which mothers work out.1

The conclusions arrived at a study were as follows2—
(a) The central causal factor behind most child neglect and delinquency lies in
family disorganisation;
(b) Disorganisation causes emotional instability in the parent;
(c) A disorganised family life sets in motion process harmful to children who may
react to them by becoming delinquent or by developing traits that lead to breakdown later
on.
(d) From disorganised families come some other serious and costly social
breakdown, such as mental disease, mental deficiency, crime and divorce.
(7) Community influences.—We are all familiar with the role played by school,
playgrounds, chufch, motion pictures, radio and television, press and other character building
agencies.
Press.—Some are of the view that only publicity will awaken the people to the prevalence,
constancy and importance o f crime.3 The constant repetition of crime stories in the press can affect
readers in two different and dangerous ways; it may affect some highly suggestible persons to
commit similar crime, or it may create an ~ indifference to law and' order through the constant re-
iteration and exaggeration of the details of the crimes. The unstable and many of the socially
maladjusted may be affected; and it is from this suggestible and abnormal group ,that most of our
delinquents come.4
At best we can give the newspaper the credit, for dramatising crime and arousing public
opinion to the menace of large scale criminality. But the most disastrous influence that newspaper,
the movies and radio exert on the crime situation lies in the fact that these agencies of publicity are
the most powerful single force preventing the reformation of criminals. 5 The publicity agency can
both frustrate and prevent the crime. The newspapers should-instead of propagating criticism, enlist
the services of a correctional expert to run a column in their paper orienting the public on the whole
process of criminal and correction > procedure.
Motion Picture.—Movies have a great influence on children. Pictures dealing with crime
occasionally show that it is easy to live without working legitimately, that crime is exciting, that
there are methods of enjoying many of the-good uY gs in the life, snappy cars, cleverly dressed
women, luxurious hotels, rich food, hur-ry-up trips, and other glamorous materialistic proofs of
affluence. ¥oung girls find from many movies that love can be thrilling and even pleasingly
dangerous, that clothes make the women, that men seek girls, who have easy virtues, who use finish
in make-up and in wearing their clothes well; that if a girl is astute, she can have the clothes and
good times she craves.6
On the other hand-movies depict tales of heroism, courage; integrity and other socially approved virtues. The movies like athletic events make it possible for the
average person to enjoy many desired activities.'
1. "Family Disorganisation as a Causal Factor in Delinquency and Crime", Federal Probation,.

Vol. 12 No. 3 (September, 1948) pp. 13-17. , -
2. BarneS anc1,. Teeters, 'New Horizons in Criminology (3rd. ed.) p. t84.
3. Proceeding, Attorney Generals, Crime Conference, (Washington, D.C.) (U.S. Govt. Printing
Office)-1934, p. 84.
4. Barnes Cand Teeters, 'New Horizons in Criminology' (3rd. ed.), p. 186.
5. Ibid., p. 188. ' -
6. Ibid, at pp. 189-190.
It is doubtless true that delinquents attend movies more frequently than non-delinquents clue
to their lack of constructive interests. Adventure is top choice of the boys, the romantic love theme
of the girls, although adventure is a close second of delinquent girls also.
Movies are only a part of the conditioning process and are regarded as one contributing
factor in the development of personality of the individual. 2 In the like manner the church, the
school, the place of employment and the neighbourhood equally play their part in determining the
behaviour of a person.
Radio and Television.—Television available at a flick of knob and combining visual and
audible aspects into a 'live' story has a greater impact upon its child audience. It is difficult to gather
proof of a direct causal relationship between the viewing of acts of crime and violence and the
actual performance of criminal deeds. But no hasty judgment can be passed on the roles of radio
and television as precipitators to delinquency and crime on serious scale.3
The Comics.—Comic books are obviously misnamed with few exceptions. They are
definitely not humorous. Some by all standards of culture and decency are dull, unwholesome,
highly suggestive and even pernicious. Others are tolerably respectable and educative. Children and
adolescents are very fond of the comics. Children indulge in bad language. They react to violent
and socially stimulating- 'picture language' of the comics.4 Child is exposed to conflict.
Other Snares.—Salacious literature, pornographic literature and pictures, are highly
suggestive with the art work leaving nothing to the imagination. Such types of art is sexually
stimulating to adolescents. Nudity is the rule and deviate forms of sexual behaviour are graphically
presented. Beautiful girls are depicted in compromising positions and nothing is left undone to
titillate the sexual cravings of those who purchase the pictures. There is no doubt that most of the
purchasers of these pornographic exhibits are maladjusted individuals and as such need community
protection.5 There are many borderline books, magazines and pictures that cause a great deal of
trouble.
Dance Clubs.—Another form of snare for the young adult is the taproom or the suburban
dine-and-dance club. While not outwardly offensive, these places do serve as contact points
between street walkers or hold-up men and their potential partners among the youth. They also
provide easy access to gambling machines and "the book."6
All these things present a variety of temptation to modern youth that were relatively non-
existent in the earlier days. Since most parents are unaware of these potential damages, or are too
busy with their own pleasure or occupations, the police power of the community must accept its
responsibility of controlling them with sustained effort.7
(8) Emotional disturbances as factors in criminality.—The causes of Abnormality are
both physical and psychological. The abnormal types of behaviour that are due to physical causes
may be brought about by disease, toxic or
1. Barnes and Teeters, 'New Horizons in Criminology' (3rd. ed.) at p. 190.
2. Ibid, at p. 190.
3. Ibid, at p. 194.
4. Ibid, at p. 194.
5. Ibid, at p. 195.
6. Ibid, at p. 196.
7. Ibid, at p. 196.
poisonous products in the system, changes due to age and the life. Defects in the endocrine glands
prevent normal responses on the physio-chemical level and may result in diseases that manifest
themselves in pathological excitability; abnormal apathy etc. A serious mental disorder known as
paresis caused by syphilis affects motor-sensory responses and makes it impossible for the
individual to control his reflexes in normal fashion. Senility may bring about bodily changes that
affect the normal responses on these lower levels.1
From the psychological point of view mental abnormality is a marked inability to face reality
with resulting mental conflicts. The life experiences of the individual from earlier childhood
onwards, may have created mental reaction patterns (complexes) which make it very difficult for
him to meet adult responsibilities. Insecurity, rejection or frustration in childhood, harsh living
conditions, disappointments in love, professional failures, economic insecurity and a large number
of other unfortunate experience may make it extremely difficult for some individuals to face the
realities of life. These individuals tortured by mental conflicts tend to escape from this intolerable
reality by creating world of mental fantasy that is more in harmony with their wishes and desires; or
go to the other extreme and become aggressive or even cruel in their behaviour towards others.2
Since few persons have a completely satisfactory set of experiences from birth onward, or
find life entirely to their liking in adulthood, the great majority of normal human beings create for
themselves a realm of fancy in which they realise aspirations denied them in actual life. But in all
these normal cases reality occupies the leading role in their life interests and activities. With the
definitely psychotic, reality is almost wholly abandoned and the realm of fantasy becomes their
main concern.3
The problems of the childhood are the main cause of emotional maladjustment. It is
suggested that instead of dealing with the problem of troubled children if the parents are educated to
prevent frustration, it may bring a better result. We know that insecure or rejected children or
children who crave love and affection but do not receive it become emotionally unstable
adolescents of tomorrow.4 Most parents take their children as they come hoping they will outgrow
by the time. These unwittingly parents do not realise the future consequences. These parents need
guidance by ortho-psychiatrist concerning the potential problems facing these children in the
world.5
The vast majority of babies make necessary adjustments to the social environment. The
dominating factor in these cases are the parents who accept the child and make them feel that it
belongs to him. It is better to place the babies along the mother from the very moment of birth
instead of keeping them away under the care of the over busy and inexperience nurses who cannot
care so much of the child as the mother herself. The child must be given love from the moment of
its birth rather from the time of conception. The harm done to the rejected and uncared baby in
childhood can hardly be cured while they grow up even at the cost of best social tolerance and
environment.
August Aichhorns pointed out that "it is important to know what the child
2. Ibid, at p. 198.
3. Ibid, at p. 198-99.
4. Ibid, at p. 199.
5. Ibid, at p. 199.
is thinking so as to divert his overt anti-social act into corrective channels rather than to repress
them. He views delinquency as symptomatic of a neurosis."
From the very childhood the human nature is aggressive and assertive. When a baby wants
something and is denied, he protests by his cry until he gets the thing wanted or is exhausted, With
the growing of age many of the desires of the child come in conflict with the realities of the world.
Normally some of the desires are fulfilled and some are denied. Society obstructs to many of the
spontaneous expressions of human nature.1
The child from the moment of his birth comes in contact with one or the other form of social
institutions that impact consciously or unconsciously the influences of belief and practices with
respect to social behaviour. The child has to undergo a process of socialisation to which he may
either respond favourably by adjustment or be penalised for acting contrary. Thus there is a conflict
between the latent drives of human nature and social discipline. The wise parents can reduce such a
conflict to a greater extent, whereas the unwise parents add to growing maladjustment by not giving
a proper channel to the child activities.
Children often fail to do what is hopefully expected of them. The punishment and reward
must bear a relation to the behaviour of the child, only then it would give efficient results. The
parents must recognise and understand the roles they must play in dealing with their off-springs,
especially in a family where there are more than one children because in such cases there is always a
great rivalry among children for parental love and recognition. The child must be taught a lesson of
life and sense of responsibility by affectionate behaviour of the parents, because it is mostly the
insecure and frustrated child that is spoiled. The parents must set flexible limits as guides in helping
their children" to make choice of behaviour. 2 The mother can play a very effective role in the
maturation process of the child. Thus it is clear that emotional disorganisation is far more important
as a factor in crime causation.
(9) Multiple causation approach.—Crime is the result of manifold causes which can be
detected by means of careful study. According to Enrico Ferri, the factors of crime can be divided in
individual or anthropological, physical or natural and social. Anthropological factors comprise age,
sex, civil status, profession, domicile, social rank, instruction, education, and the psychic
construction. The physical facts are : race, climate, the fertility and disposition of the soil, the
relative length of day and night, the seasons meteoric conditions, temperature. The social factors
comprise the density of population, emigration, public opinion, customs and religion, public order,
economic and industrial conditions, agriculture and industrial production, public administration of
public safety, public instruction and education, public beneficence, and, in general, civil and penal
legislation.
Crime is assignable to no single source^ it usually springs from multiple influence. Thus
nature of these factors vary from one individual to another. 3 No single cause can explain all crime
pattern. It may be due to conflict or disorganisation, either cultural or emotional. The
constitutionalists explain by morphological - aberrations, the psychiatrists may speak of the "rejected
personality" and the sociologists of the socially maladjusted individual.
Crjme must be recognised clearly as not being a unitary phenomena but as consisting of many
2. Ibid, at p. 202.
3. Cyril Burt, The Young Delinquent, 1st Ed. (Lon.) Univ. of London Press 1938, pp. 599-600.
kinds of behaviour, occurring under different situations. 1 We may explain some crime on one or the
other basis but all crime cannot be explained by resorting to specific hypotheses. 2 A joint and co-
ordinated approach by different experts is desirable. Furthermore, some integration of theory and
practice is surely needed.3 If we desire to grip the problem of crime in our communities,
understanding and tolerance must be nurtured and developed. What is more needed is the
implementation of the theories through social action.4
31
GENERAL INTRODUCTION
VI—STRICT LIABILITY
The question whether a crime can be said to have been committed without the necessary mens
rea has led to considerable controversy. The broad principles accepted by courts in this country as
well as in England are : Where an offence is created by a statute, however comprehensive and
unqualified the language of the statute, it is usually understood as silently requiring that the element
of mens rea should be imported into the definition of crime unless a contrary intention is expressed
or implied.5
Ordinarily a mind at fault is necessary to constitute a crime. But there are some crimes which
do not require any kind of legal fault on the part of the accused. Crimes requiring fault on the part of
some one but the accused are the crimes of vicarious liability and those not requiring fault on the part
of anyone are known as crimes of strict liability. These are the crimes in which the necessity for
mens rea or negligence is wholly or partly excluded.6 Strict liability means liability to punitive
sanctions despite the lack of mens rea? There does not seem to be a crime of strict liability at
common law. There does not also seem any statute that creates it in so many words. The question
arises on the construction of a statute that penalises conduct without express reference or with only a
partial or limited reference to the mental state of the wrong-doer. The general principle of criminal
jurisprudence is that although the statute is silent on the point a requirement of mens rea is to be
ipplied.8
The legislature can, no doubt, dispense with mens rea, punishing the event and not the intent, 9
the principle formerly was that "it lies on those who assert that the legislature has so enacted to make
it out convincingly by the language of the statute." '"vIt is contrary to the whole established law of
England (unless the legislation on the subject has clearly enacted it) to say without an attempt to do
that which the law has forbidden."11
At common law there are three recognised exceptions to the general principle of mens rea : (i)
public nuisance, (ii) criminal libel, and (iii) contempt of court.
Public nuisance.—An employer can be held guilty of the offence even when the offending act is
1. George B. Void Theoretical Criminology (N.Y.) Oxf. Univ. Press. 1958 pp. 313-314.
2. Barnes & Teeters, 'New Horizons in Criminology' (3rd ed.) at p. 209.
3. Ibid, at p. 210.
4. Ibid, at p. 212. \
5. State of Gujarat v. D. Parade, 1971 Cri. L.J. 760 at p. 762.
6. Williams, G.; Criminal Law, (General Part, 1961 Ed.) p. 215.
7. Hall Jerome, General Principles of Criminal Law (2nd Ed.) p. 325.
9. Ibid, at p. 239.
m.Chisholm v. Doulton, (1889) 22 Q.B. at 741.
11? Attorney General v. Bradlaugh, (1885) 14 Q.B.D. at 689 (C.A.),
done by an employee without his knowledge. Public nuisance, as defined by Stephen, is "an act not
warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes
inconvenience or damage to the public in the exercise of rights common to all Her Majesty's
subject."1 Section 268 of the Indian Penal Code creates the offence of public nuisance which is
illustrated from sections 269 to section 294-A. The principle of common injury, danger or annoyance
runs through the acts spreading infection, adulteration of food or drink or drugs, selling obscene
literature and pictures, keeping a lottery office, like the golden thread. But the Indian law is
controlled by age-worn values in these items of crime. For example, the rule laid down in the
Hicklin test almost a century ago still rules the roots, even after the amendment of the relevant
sections relating to sale of obscene book etc. It was held in the Ranjit D. Udeshi v. State of
Maharashtra,2 that the ordinary guilty intention will be required before the offence can be said to be
complete. The circumstances of the case will determine the criminal intent. Positive evidence need
not be given. But this ruling itself expresses doubt about the borderline cases. Even the amendment
made to section 292 after the judgment was pronounced could not bury the Hicklin ghost. Of course,
the distinction recognized between the scientific treatises and journals from those of ordinary books
for common consumption is appreciable although a fine one.3 The exclusion of works of art from the
legal scrutiny is, debatable.4
Private libel.—The absolute rule has been undermined by a provision of the Libel Act, 1843,
which provides a defence to a newspaper proprietor who would otherwise be strictly liable, on his
proving that the alleged defamatory statement has been printed without malice and negligence on his
part and that he has published an apology.5 In India, the press magnate is made liable if the
defamatory publication was done with the necessary intent, knowledge or reasonable belief, although
the journal or the newspaper may be edited by another person appointed by him. Running the paper
and carrying out the policy of the publications is still retained by him. Only illegality on the part of
editor may absolve him.6 The Indian Law on defamation is contained in section 499 and 500 of the
Indian Penal Code. A charge under the relevant provisions of Indian Law does not seem to be a case
of strict liability.
Contempt of Court.—Strict liability in the offence of contempt of court is of recent origin. In
R. v. Evening Standard,1 the defendant newspaper receiver, an inaccurate report of evidence given at
a criminal trial from a reporter anc published it before the jury had considered its verdict. The editor
had nc knowledge of the inaccuracy, but the newspaper was convicted of contempt oi the ground that
the jury might have been influenced by the published inaccurati facts and that the officials of the
newspaper should have known that thi proceedings were continuing. The Indian law on the subject is
contained in tb Contempt of Courts Act, 1971.8 Under the Act every High Court is compete!!
to punish any person guilty of its contempt or guilty of contempt of Courts subordinate to it.
Contempt of Court springs from the adverse effects to the cause of justice. Scandalizing the Court,
1. Stephen, Digest of Criminal Law (8th ed.) p. 184.
2. A.I.R. 1965 S.C. 881.
3. Sukanta Haldar v. State, A.I.R. 1962 Cal. 214 (215).
4. Ramamurthy v. State of Mysore, A.I.R. 1954 Mys. 164 (165).
5. Stewart S.W., A Modern View of the Criminal Law, p. 61.
6. Bhagat Singh v. Lachhman Singh, A.I.R. 1968 Cal. 296.
7. (1954) 1 Q.B. 578.
8. The Contempt of Courts Act, 1952 {See Sec. 3).
abusing the parties before the Court or prejudicing the mankind against those before the cause are
different varieties of the contempt contemplated in the legislation. 1 Aspersions cast against
individual judges or defaming the entire fabric of judiciary may lead to strict responsibility.
Attributing improper motives to the judges of the Court exceeds the limits of fair and bona fide
criticism and amounts to gross contempt.2 Accusation about the competency of the Judge too lead to
minimization of public confidence in judiciary.3
Abduction.—In England the legislature was not thought competent to override the common
law rule of requirement of mens rea as a necessary element of every time even though it is not
expressly mentioned in the Statute. The change in the courts' attitude towards the rule of strict
liability appeared in 1875 in the well-known case of if?, v. Prince/ In this case which we have already
discussed in detail the accused was Convicted of abducting a girl although he was blameless in
respect of mens rea. In an earlier case R. v. Hibbert,5 the accused had met the girl in the street, took
her to another place, seduced her and left her where he had found her. The girl was in the custody of
her father but it was held that in the absence of a finding by the jury that the accused was aware of
this fact or had wilfully abstained from inquiring about the guardianship of the girl, he must be
acquitted. In Hibbert's case the accused was acquitted because he did not have the actual of the
constructive knowledge that the girl was under any body's guardianship. In Prince's case the accused
was convicted because it was emphasised that one who abducts a girl does so at his peril in so far as
her age is concerned. In India cases similar to that of Prince are triable under section 363 of the
Indian Penal Code for kidnapping a girl out of the keeping of lawful guardianship. The defence that
the accused did not know that the girl was under the statutory age or that from her appearance the
girl looked quite older than that age and that the accused took her to have attained the age of consent
could not be accepted/'
Bigamy.—The offence of bigamy in English law has been created by section 57 of the
Offences Against Persons Act, 1861. 7 R. v. Tolson9, and R. v. Wheat,9 are the two important English
cases on the subject, which have already been discussed earlier in detail. Another case is R. v.
Dolman.'" In this case Mr. Dolman had reasonable cause to believe and believed honestly that Mrs.
Dolman was married to a man named Gray when she married him. Mr. Dolman subsequently
1. 1969 Ker. L.J. 453 (D.B.).
2. A.I.R. 1953 S.C. 75 (76).
3. A.I.R. 1967 S.C. 1491.
4. (1875) L.R. 2 C.C.R. 154.
5. (1869) L.R. 1 C.C.R. 164.
6. Krishna Maharana, (1929) 9 Pat. 647.
7. Section 57 provides : "Whosoever being married, shall marry any other person during the
life of the former husband or wife....shall be guilty of felony....provided that nothing in this
section contained shall extend to any person marrying a second time whose husband or wife
shall have been continually absent from such person for the space of seven years then last
past, and shall not have been known by such person to be living at that time or to any
person who at the time of such second marriage shall have divorced frorn die bond of the
first marriage."
8. (1889) 23 Q.B.D, 168.
9. (1921) 2 K.B. 119.
10. (1949) 1 All E.R. 813.
married to one Jenson because he believed that he had never been legally married to Mrs. Dolman.
33
He was acquitted of the charge of bigamously marrying Jenson while in fact he was proved by the
prosecution to be married to Mr. Dolman. On the facts as Mr. Dolman believed them to be, he did
not like or intend to marry during the life of his former wife because unlike Wheat he believed that
he had never been legally married to the woman proved by the prosecution to be his wife. If his
belief had been true, he would not have had to rely on any proviso to section 57 of the Offences
Against Persons Act.
In India bigamy is an offence under section 494 of the Indian Penal Code. Section 494 is very
much similar to the provisions of English law. Although the second exception to section 494
presumes innocence from the fact of continuous absence of other spouse for seven years, it does not
expressly admit of the other exception of English law of 'bona fide belief of the spouse's, death at the
time of the second marriage. Because of this omission there is difference of view between Indian and
English decisions. English decisions support the view that even if seven years had not elapsed before
the second marriage, a bona fide belief in good faith at the time of the second marriage that the first
spouse was dead is a good defence. 1 The Indian Court in a Bombay case 2 under similar
circumstances had taken a view different than that in Tolson's case. Section 494 of the Indian Penal
Code makes a bigamous marriage, irrespective of an intention, an offence so that the plea of
innocence or want of mens rea is no defence-to a charge of bigamy under the Code. However, if the
spouse was continually absent for a period of seven years and had not been heard of by such person
as living, the other spouse is free to marry provided that the person marrying informs of these facts
to the intended partner before marrying. But where seven years have not elapsed before second
marriage, the person marrying may rely on the general exception provided he can show that he had
made inquiries and had bona fide reasons to believe that the other party was dead.
Statutory offences.—In modem times the principle of strict responsibility is more noticeable
in 'public welfare offences'. Public Welfare Offences are statutory offences of minor character
involving minor punishment. They are offences connected with sale of adulterated food or drugs, or
offences of possession or offences connected with road traffic or offences against customs rules and
foreign regulations.
There is presumption that the doctrine of mens rea applies to all crimes including statutory
crimes. But this 'presumption is liable to be ydisplaced either by the words of statute creating the
offence or by the subject-matter with which it deals and both must be considered.'3
We have seen that Cundy v. Le Cocq4 and Sherras v. De Rutzen,5 are the two contrary decisions on this point. The general rule as pointed out by Lord Goddard,
C.J. is actus non facit ream nisi mens sit rea and unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should
not find a man guilty of an offence against the criminal law unless he has guilty mind.1 This view has been approved by the Supreme Court in Ravula Hariprasad Rao v. The
State? Thus we have seen that a large number of modern statutes have in prescribing punishment excluded the requirement of mens rea. The following are some of the reasons
suggested for the recognition of the principle of strict responsibility—
1. R. v. Tolson, (1889) 23 Q.B.D. 168.

2. Shambhu, 1 Bora. 347.
3. Sherras v. De Rutzen, (1895) 1 Q.B. 918.
4. (1884) 13 Q.B.D. 207.
5. (1895) 1 Q.B. 918.
(1) Almost all such offences are of minor nature and involve only pecuniary penalty
and exclusion of enquiry into mens rea is not unjust where the only outcome of the
prosecution is a small pecuniary penalty.3
(2) It would be difficult to procure adequate proof of mens rea in such offences. To
permit such a defence would be to allow every violator to avoid liability merely by pleading
lack of knowledge.4
(3) Public welfare offences serve a social purpose by making that act as punishable
which though not intrinsically wrongful ought to be punished in the public interest. That is
these offences are merely mala prohibita and not mala in se.
(4) Having regard to the number of transgressions that have to be brought before the
courts and to the fact that in most cases the defendant is probably culpable, while the proof of
this mental culpability is difficult, it .would be a waste of time for the court to have to enquire
into the question.5
(5) Another argument in support of strict liability is the claim that it serves as a proof
to stimulate increased care and efficiency even by those who are already careful and efficient.
As to the first argument it is not easy to see why the slightness of the penalty should justify an
abandonment of the requirement of culpability, and in any event the penalty is not the punishment
that the defendant receives—he also has to suffer the humiliation of trial and odium of conviction,
which are present in some degree even with these offences, and which for respectable defendants are
sharper penalties than anything extracted from their pocket. 6 Further in modern times fine is not the
only penalty in such offences. In addition to fine,, imprisonment is also prescribed as punishment in
many cases.
Against strict responsibility it is said that the practice of imposing small fines without enquiry
into mens rea does not deter unscrupulous persons who are the real culprits. 7 An attitude of greater
discrimination between culpable offenders and others, imposing severe penalty on the former instead
of minor ones on all and sundry, would result in better observance of the law.8
Another objection against the principle of strict liability is that it is an abuse of the moral sentiments of the community. To make a practice of branding people as
criminals who are without moral fault tends to weaken respect for the law and the social condemnation of those who break it.9 When it becomes respectable to be convicted
the vitality of the criminal law has been sapped.1 Professor Hall
in his Essays in Criminal Science posits that :

1. Harding v. Price, (1948) 1 K.B. 695.
2. A.I.R. 1951 S.C. 204.
3. Hobbs v. Winchester Corpn., (1910) 2 K.B. 481 (C.A.).
4. Note, 42 Mich. L. Rev. 1103, 1106 (1944).
5. Williams, G., Criminal Law (1953) 268.
6. Ibid.
7. Ibidr^269.
fi.Hall, Jerome; General Principles of Criminal Law (1st ed.) pp. 301-2.
/9. Williams, Gr; Criminal Law p. 269.

: ... \ . " " . . .
"It is becoming increasing by recognised that strict liability has no place whatever in
Criminal law; instead it smacks of,barbarism to punish the people despite the fact that there is
no reason for blaming them at all. I have never any evidence which supports of such liability
in penal law, specially that it raises standards and protects the public." According to Hall, the
sole raison d'etre o f strict liability no longer exists.2
Therefore two alternatives have been suggested—
(1) that public welfare offences be separated from the traditional crimes and enforced
through administrative agencies,3 and
(2) that negligence be accepted as sufficient degree of mens rea in statutory offences4
and the onus be transferred to accused to prove that he acted with due care.5
One of the suggestions made, therefore, is that the public welfare and similar regulations be
removed from the penal law. "That auspicious beginning would render more persuasive, as an initial
reform, the allocation of these rules to a separate code of civil offences requiring negligence and
tried by administrative tribunals or civil courts. If at the same time, inspection, education and counsel
were provided by regulatory boards, and the work of the criminal courts were restricted to violations
involving mens rea, we might be well on the way to the solution of this problem.6
VII—VICARIOUS LIABILITY
The general rule is that a man must be held criminally liable for his own acts and no one can
be penalised for the act of another. But to this general rule exceptions have been found since times
immemorial. The instances of clan-feud, tribal-feud or family feud are easily traceable in the history
of mankind. The idea of punishing the entire family for the acts of any of its member and the like
may seem barbarous but is based on the principle of solidarity of guilt. Collective responsibility rests
principally upon a notion of group unity for the purpose of retaliation or expiation. 7 There are two
justifications in support of this doctrine—
1. The person so made liable will prevent the commission of the crime or will help to
bring the actual offender to book.8
2. The expectation that the vicarious punishment of those he holds dear will deter the
criminal himself.
The common law rule of vicarious liability was enunciated in ft v. Muggins.9 In this case
Barnes and Huggins, the Deputy ^Warden and Warden of
1. Sayre, Harward Legal Essays (1934) 409.
2. Hall, Jerome; General Principles of Criminal Law, p. 251.
3. Friedman also suggests for a clear delimitation of this type of crime. In his opinion public
welfare offences belong-to a branch of administrative rather than penal law which should
consequently be treated as part of the administrative rather than penal process. See Friedman,
Law in a Changing Society, pp. 162-163.
4. Edwards, Mens/Rea in Statutory Offences, (1955) 4. J. Soc. Pub. Teachers of Law, (N.S.).
5. Prevezer, "CrinUnal Law Reform" (1958) C. Leg. P., p. 75.
6. Hall Jerome; General Principles of Criminal Law, p. 359.
8. In Malaya and Kenya collective punishment to towns and villages has been resorted to with
a view to induce villagers to co-operate in giving information about the commission of crime.
9. (1730) 2 Ld. Raymond, 1574 : 92 E.R. 518.
Prison respectively were charged with offence of murder of a prisoner in Fleet Street Prison by
putting him in a filthy room. Barnes the Deputy Warden had put him in the filthy room and Huggins
the Warden had only seen him and turned away. Huggins was not found guilty. It was observed
that :
"Though he was a Warden, yet it being found that there was a deputy, he is not, as Warden,
guilty of acts committed under the authority of the deputy. He shall answer as superior for his
deputy, civil and not criminally....He only is criminally punishable who immediately does the act or
permits it to be done. So that if an act is done by an under officer, unless it is done by the command
or direction, or with the consent of the principal, the principal is not criminally punishable for it." 1
Therefore the common law rule is that no person can be held vicariously liable for the wrongs
committed by someone else unless he has previously authorised or assented to the causing of the
wrong.
Common law Exceptions
There are three exceptions to the common law rule that no person is criminally liable for the
act of another unless he has authorised or assented to it.
1. Libel.—A master is liable for libel published by his servant. This rule was designed
chiefly to punish the newspaper proprietors. Later on Libel Act was passed in 1843. Section 7 of this
Act provides that the proprietor could plead the absence of knowledge or negligence in his defense.
It means he can plead that there has been no lack of due care on his part and that the libel has been
published without his authority.
2. Public Nuisance.—A master is vicariously liable for public nuisance caused by his
servants. The master cannot defend himself by showing that he expressly forbade the Act. A duty is
imposed upon the owners of the land to manage their property in such a manner so as not to injure
the rights of other men of public. A breach of this duty is punishable criminally. In R. v. Stephens,2
the owner of a quarry was managing it through a manager. The manager, servants and other
workmen were instructed not to dump rubbish in the river, where it would cause harm to the public
generally. Inspite of these instructions they dumped the rubbish in the river for which the owner was
indicted and found guilty. It was observed that the object of prosecution is not to punish the
defendant but to prevent the nuisance from being continued."3
The Indian law on public nuisance is contained in section 268 of the Indian Penal Code. In
India any one who does any act or is guilty of an illegal omission which causes any common injury,
danger or annoyance to the public or to the people in general is liable for public nuisance. Therefore
cases of public nuisance in our country have to be tried in accordance with the provisions of Section
268 and the common law cases relating^ to public nuisance do not serve as an authority to the
construction of/the provisions of the Indian Penal Code.
3. Contempt of Court/—Contempt of Court is the third exception to the
common law rule against vicarious liability. 4 The law relating to contempt of
Court has now been modifiefi^by Administration of Justice - Act, 1960. Under
section 11 of this Act the accused may plead that neither he had knowledge nor
x
1. R. v. Huggins, 92 E.R. 518.
2. (1866) L.R. 1 Q.B. 702.
3. Ibid.
4. R. v. Evening Standard, (1954) 1 Q.B. 578.
reasons to suspect that the proceedings which had been published were pending before the court.
Statutory Exceptions.—Like strict responsibility, vicarious liability may also be created by
statute. Vicarious liability may, however, be inferred from the language of the statute. In Allen v.
Whitehead,1 the defendant, an occupier and licensee, of a refreshment house employed a manager
for running the refreshment house. He used to visit it only once or twice a week. He had given
express instructions to the manager that no prostitutes were to be allowed to congregate on the
premises of the house. The manager, in spite of his instructions to the contrary, allowed some
women, whom he knew to be prostitutes, to congregate on the premises. The defendant, even though
had no personal knowledge of it, was held liable for knowingly suffering prostitutes to meet and
remain in the refreshment house. In R. v. Love,2 Love was the director of a company. He was
indicted for printing a book containing some obscene libel. When the book was printed, he was ill
and knew, nothing about its contents. It was held that, while the company was liable for the acts
done in his absence, the director of the company could not be held for such acts done in his absence,
especially when he had no knowledge of it.
Suppose under a statute it is an offence to serve alcohol knowingly to a minor in a bar. A
private limited company owns a bar, the management of which is left exclusively to a paid manager
B. Alcohol is freely served to all including minors by the servants of the bar, B shutting his eyes to
the practice. Accordingly alcohol was served to C a minor by a servant of the Company having
reason to believe that he was a minor, neither B nor any director of the Company knew of this act.
In this case the company as well as B would be liable for serving alcohol to the minor against the
statute because"as a matter of practice alcohol was used to be served to minors within his
knowledge and he never instructed the servants to refrain from this practice. Secondly, the manager
would be liable for the acts of his servants for his failure to employ such persons only who would
act within the permissible limit of the statute.
In Wilson v. Murphy,3 a football pool promoter employed about a large number of collectors
and instructed them that it was illegal to collect money until after the matches had heen played and
also that credit be always given until this event. One of the collectors accepted money at the
'investment'. The pool promoter was not held guilty of offence. This case had been distinguished
from Allen v. Whitehead,4 on the point that in the latter case the "licensee had put into a position of
responsibility (a man who was called upon to exercise a discretion". But we see that it is not a
tenable distinction. The manager in Allen v. Whitehead was given no discretion, but was expressly
forbidden from permitting there resorting of the prostitutes.'In both the cases the servants were
forbidden to break the law. It has further been observed that the licensee in Allen v. Whitehead had
transferred to his manager a discretion which he ought to have exercised. It is hard to understand on
what principle the discretion was held to be non-delegatable unless on the principle that the master
having a public licence was bound to give his personal attention to the premises. This appears to be
the true ground of reconciliation, between the two cases.1
Barker v. Levinson2 is an important decision on the subject. This is a case on Landlord and
Tenant (Rent Control) Act, 1949. Section 2(1) of the said Act provides that no person shall, as a
1. (1930) 1 K.B. 211.
2. (1955) 39 Cr. App. R. 30.
3. (1937) 1 All E.R. 315. .
4. (1930) 1 K.B. 211.
condition of the grant of a tenancy require the payment of a premium. The defendant, a manager of
the owners of a flat authorised the rent collector to let one of the flats to one Mr. S. There was no
evidence that the manager authorised the rent collector to negotiate the terms of the tenancy. The
collector illegally demanded a premium. It was held that the manager could not be held liable for the
offence under section 2(1) of the Act because the collector was not acting within the general scope
of his authority. Commenting upon this case Williams has observed that, "the distinction taken is
infelicitous, for it gives the totally wrong impression that vicarious responsibility is the same in
crime as in tort.3 In Navarro v. Moregrand Ltd.,4 Lord Denning commenting upon the case observes
that, a master is not criminally responsible except for that he has expressly or impliedly authorised.
Williams has further observed that—
"In Barker v. Levinson? the two kinds of responsibility seems to have been confused. It will be
remembered that in statutory offence therein question was that of requiring the payment of a
premium, and the court in effect implied into the statute a provision that the defendant was
vicariously responsible for a premium demanded by another if this were within the general scope of
his authority....The question was not whether the statute created an absolute prohibition but whether
the master was vicariously responsible for his servant's act in requiring a premium. Actually the
defendant in Barker v. Levinson was not even the master, and it is settled that a superior servant can
never be vicariously responsible for his inferior."6 Indian Law.—The offence of vicarious liability
has been created in India through various Acts. For example the Arms Act, 1959 and the Opium
1. Williams, G.; Criminal Law, (1953) p. 284.

2. (1951) 1 K.B. 342.
3. Williams, G.;.Criminal Law, (1953) p. 284.
4. (1951) 2 T.L.R. at 681 (C.A.).
5. (1951) 1 K.B. 342.
6. Williams, G.; Criminal Law, pp. 286-287.
7. 'H.S, Gour, The Penal Law of India, Vol. II, (8th Edn.) p. 1099.
Act, 1878. Under the Indian Penal Code the owners and occupiers of land are vicariously liable
under sections 154 and 155 for unlawful assembly or riot taking place on their land, although he
may be ignorant of the act of his agent or manager. Section 40 of the Criminal Procedure Code,
1973 requires the owners and occupiers of land to give information about the commission of an
offence or apprehension of commission thereof. Under section 154 of the Indian Penal Code the
liability of the owner or occupier does not depend upon his knowledge-X)f the commission of riot
etc. Dr. U.S. Gour observes that : "Owners and occupiers of land have been invested by law with
certain duties of the police, which they are expected to discharge by virtue of their positions as'
land-holders. They are not unconnected with the use of land and their responsibility is declared upon
the assumption that as land-holders they possess the powers of preventing the gathering of men
upon their land and to suppress or disperse disorderly gatherings if they are so minded. The section
was never intended to punish the owner who or whose agent or manager does any of the things
specified in the section."7
51
GEN^HAL INIHUUUUIIUN
Section 155 is a general section and is directed against persons encourage or connive at a
riot, and who consider it to their advantage. Section 156 makes the owner or occupier of land, for
whose benefit the riot is committed, liable. The agent or manager of such person shall be liable if
he having reason to believe that such riot was likely to be committed or that the unlawful assembly
by which such riot was committed was likely to be held, does not use all lawful means /in his
power to prevent such riot or assembly taking place and for suppressing and dispersing the same.'
The application of the doctrine of vicarious liability in crimes seems to have been actuated
by a necessity rather than desirability. The justification of the doctrine is based on public policy
that a person may properly be punished for the crime of his subordinate servants, or agents, because
the threat of such punishment may induce him and others to exercise supervision over the
subordinates. But if this be really the reason, it would, as Glanville Williams suggests, seem better
or phrase that rule as duty to supervise, and it should be a defence (as it is not at present) to prove
that due care was taken to supervise.1 He has further observed :
"But in any event it is debatable whether such a duty to supervise is a necessary or
proper part of criminal law. Vicarious liability is thought to be necessary in tort because the
servant's pocket is usually too shallow to bear the damages that he may negligently occasion;
but criminal punishment can reach the servant as well, as it can reach the master.
Traditionally the responsibility of the master has been confined to what he has authorised,
and if criminal law is to be tainted with notion of justice it would seem to be going too far to
punish the master for his failure to prevent the servant from committing unauthorised
crimes."2
The dislike for the doctrine has not only been expressed by criminal lawyers but the judges
too. Lord Goddard, CJ. in Gardner v. Akeroyd? called vicarious liability as "odius" but observed
that "it is a necessary doctrine for the proper enforcement of modern legislation, but it is not one to
be extended." In Raynolds v. D.H. Austin and Sons Ltd.4 Devlin, J. in search of the reason as {to
why a person be punished for the acts of his servants or for the defects in his business
arrangements, explained that "because it can fairly be said that by such sanctions citizens are
induced to keep themselves or their organisations upto the mark." Baty 5 suggests four reasons for
his dislike of the doctrine :
1. To make an employer an insurer of his servants conduct may be to throw on him
an exceedingly heavy liability beyond what Parliament would have intended.
2. Although the results of the summary process are not very serious, they involve in
the minds of ignorant people a certain amount of discredit.
3. The employer is always liable to be arrested on a warrant.
4. The employer may be forced to attend the court from a remote part of the
country.
Whatever may be the reasons for likes and dislikes of the doctrine by the
1. Williams, G.; Criminal Law, p. 289.

2. Ibid.
3. (1925) 2 Q.B. 743 at 751.
4. (1951) 2 K.B. 135.
5. Baty, Vicarious Liability, 218.
Jits, so long as modern legislation continues to intrude itself into every sphere of trading
business, health and social activities, laying down elaborate codes of conduct to be observed of,
vicarious liability in criminal law will continue to be a necessity.1
VIII—PRINCIPLE OF LEGALITY
A person accused of an offence is put under the peril of his life and liberty. Therefore, it
becomes necessary that certain safeguards should be provided to him. These protections are almost
common to all civilised legal systems of the world including that of ours. One of such principles is
'nullum crimen sine lege, nulla poena sine lege' which means that there must be no crime or
punishment except in accordance with fixed predetermined lawj. The rule is known as the principle
of legality. This has been regarded as self-evident principle of justice ever since the French
Revolution. Dicey wrote that Englishmen are ruled by the law, and by the law alone. An
Englishman may be pjunished for a breach of law, but he can be punished for nothing else. The
reason is that the citizen must be able to ascertain beforehand how he stands with regard to the
criminal law; otherwise to punish him for breach of that law is purposelessly cruelty. Punishment
must ensue on a breach of law, because it is in all its forms a loss of right or advantages consequent
on a breach of law. When it loses this quality it degenerates into an arbitrary act of violence that
can produce nothing but bad social effects.2
51
The maxim 'nulla poena sine lege' conveys four different rules, namely :
(1) Non-retroactivity of penal laws.
(2) Penal statutes should be construed strictly.
(3) Certainty in legislation.
(4) Accessibility of the law.
(1) Non-retroactivity of penal laws.—The rule is that no person shall be punished except in
pursuance of a statute which fixes a penalty for a criminal conduct. It means there can be no ex-
post facto penal law or the penal laws should not have retrospective operation. It would be unjust
that what was legal when done should be subsequently held criminal, that what was punishable by
a certain sanction when committed should later on be punished more severely, that procedural
changes seriously disadvantageous to an accused should be applied retrospectively. 3 No law, made
after a fact done can make it a crime for before the law there is no transgression of the law, said
Hobbes.4 During World War II some increased pecuniary penalties were imposed by Statutes upon
offenders in case of offences committed before such Act was passed. Such orders can be said to be
ultra vires because 'when a penalty is either annexed to the crime in the law itself, or have been
usually inflicted to the like cases, there the delinquent is excused from a greater penalty....For
seeing the aim of punishment is not a revenge but terror and the terror of a great punishment
unknown, is taken away by the declaration of a less, the unexpected addition is no part of the
punishment.5
However, in one way such pecuniary greater penalties can be justified and
1. Edwards, Mens Rea p. 243.

2. Williams, G.; Criminal Law (2nd ed.) p. 575.
3. Hall. Jerome; Principles of Criminal Law, (2nd Ed.) p. 61.
4: Hobbes, Leviathan (1651) Chaps. 27, 28.
5. Ibid. ,. .
GENERAL-INTRODUCTION 40
that is when penalty is regarded as a restoration to society of ill-gotten gains, a kind of quasi-
contractual remedy operating through criminal procedure. 1 These theories can justify, only a
pecuniary penalty and that only to the extent that the law breaker can be shown to have damaged
the community or advantaged himself. Application of ex-post facto laws in the criminal field is
prohibited in French, German, American and many cither constitutions. Art. 11(2) of the Universal
Declaration of Human Rights incorporates the above principle. 2 This was repeated in Art. 7 of the
European Convention on Human Rights, though with an important rider that punishment is allowed
for acts that are criminal according to the general principles of law recognised by civilised nations.
In England although the Parliament is "competent to enact ex-post facto legislation but it
seldom does so in the field of criminal law and the English courts too are reluctant to put such a
construction on a penal statute unless it is clearly intended and expressed by the Parliament. Art.
9(3) of the U.S. Constitution lays down specific prohibition against ex-post facto laws. In India also
this principle is enacted in Art. 20(1) of the Constitution which provides that : 'No person shall be
convicted of any offence except for violation of law in force at the time of the commission of the
act charged as an offence, nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence."
Thus in our country the retrospective operation of the following categories of laws is
prohibited :
(i) No law can make an offence with retrospective operation; and
(ii) No law can subject a person to a penalty greater than that which
might be inflicted at the time when the offence was committed.
The prohibition as contained in American (and also in Indian) Constitution does not prevent
the legislature from enacting retrospective procedural laws, unless it thereby deprives the accused
of a substantial right which is vital for his protection. 3 But the procedural laws should not make an
act which was not an offence to be an offence nor increase the penalty prescribed under the
previous laws.4 The Supreme Court in Rao Shiv Bahadur Singh v. State? has interpreted Art. 20(1)
in the following manner :
"What is prohibited under Article 20 is the conviction of a person or his subjection to
a penalty under an ex-post facto law and not the trial thereof Such trial under a procedure
different from what obtained at the time of the commission of the offence....cannot ipso facto
be held to he unconstitutional. A person accused of the commission of an offence has no
fundamental right to triaL.by a particular procedure except in so far as any constitutional
objection by way of discrimination or the violation of any other fundamental right may be
involved."
An ex-post facto law which is beneficial to the accused is not prohibited by Art. 20(1) of the
Constitution.6
1. Cf. for the difficulties of such a course see Hall Jerome; 43 Col. L. Rev. 1970 p. 1.
2. Art. 11(2)—"No one may be punished for an act which is not expressly foreseen as an offence by die law,
nor with punishments which are not established by the law."
3. Miller, Hand Book of Criminal Law (1934) p. 37, Trompson v. Utah, 170 U.S. 343.
4.. P.P. v. Ayyappan, A.I.R. 1953 Mad 337. ,
5. 1953 S.C.R. 1188 at p. 1200. ^
6. Rattan Lai v. State of Punjab, A.I.R. 1965 S.C. 444.
The following laws are considered as ex-post facto laws1 :

(i) A law that makes an act done before passing of the law, and
which was innocent when done, criminal; and punishes such an act.
(ii) A law that aggravates a crime, or makes it severer than it was
when committed.
(iii) A law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime when committed.
(iv) A law that alters the legal rules of evidence and receives less,
or different testimony, than law required at the time of the commission of
the offence, in order to convict the offender.
In addition to those Cooly adds the following2 :
(v) A law which assuming to regulate civil rights and remedies only
in effect imposes a penalty or the deprivation of a right for something which
when done was lawful.
(vi) A .law which deprives persons accused of crime of some lawful
protection to which they have become entitled; such as the protection of a
former conviction or acquittal or a proclamation of amnesty.
2. Strict Construction.—The rule is that penal statutes must be constructed strictly. 3 Since
all penal laws affect the liberty of the subject, they have to be construed strictly. 4 The rule means
that in the trial of an accused, the court must see that the act or omission charged as an offence is
within the plain meaning of the words used in the provision making that act or omission an offence
and must not strain the words used in defining an offence on any account; such as to provide for an
omission {i.e., causus omissus) or a slip. The person charged has a right to argue that the act or
omission charged is although within the words of the relevant provision, is not within the spirit of
the Act. Criminal statutes cannot be extended by construction. Nothing can be regarded as being
within the meaning of the statute which is not within the letter. Full effect is to be given to every
word used in the statute. The degree of strictness applied in the construction of a penal statute
depends to a great extent on the severity of the statute. Strict construction in relation to penal
statutes requires that' no case shall fall within a penal statute which does not comprise all the
elements, which whether material or not, are in fact, made to constitute the offence as defined by
the statute. The rule requires that where the ambiguous language of a Statute leaves a reasonable
doubt about its meaning and scope, the benefit must go in favour of the accused. The rule of strict
construction applies to penal statutes because the charge of crime endangers the life and liberty of
the person charged. In Liversidge v. Anderson? Lord Atkin observed that :
"In a case in which the liberty of the subject is concerned we cannot
go beyond the natural construction of Statute."
It is sometimes said that the maxim nullum crimen requires strict construction of penal
statutes, but this does not follow. What the maxim forbids is the analogical extension of penal
statutes.6 English Courts have seldom extended analogically penal laws. Maxwell says that now the
1. Gaidar v. Bull, (1798) 3 Dali 386.

2. Cooly, Constitutional Law p. 357. '.'
3. Maxwell on Construction of Statutes (9th Ed.) p. 268.
4. Juggomohan Bafahee v. Ray Mathooranath, 7 W.R. (PC.) 18.
5. 1942 A.C. 206.
6. Williams, G.; Criminal Law, 2nd Ed. p. 586.
position is somewhat changed and a statute now is to be interpreted so as to put upon the language
of the legislature honestly and faithfully, its plain and rational meaning and to promote its object. 1
In short, if an Act of Parliament is so drawn as to make it really difficult to say what was intended
and what facts come within it, the benefit of that obscurity should be given to the accused person.2
The rule of strict construction applies only to the part of the statute creating the crime. It
does not apply to any exemption or defence accorded by the statute which will be interpreted in
favour of the accused. Stephen, J. said in Prince case3 :
"The great leading rule of criminal law is that nothing is a crime unless it is plainly
forbidden by law. This rule is no doubt subject to exceptions....but they are rare and to be
admitted with the greatest reluctance and only upon the strongest reasons."
Judges cannot claim by judicial interpretation to extend crime but can extend defences or
justifications, where this is necessary to accord with the notion of justice.4
3. Certainty in Legislation.-—Nullum Crimen is an injunction to the legislature not to draw its statutes in such broad general terms that almost anybody can be
brought within them at the whim of the prosecuting authority and the judge.5 In England the Statutes offending the maxim must be interpreted restrictively but in the United
States such statutes may be held unconstitutional and void.6 Penal law should be sufficiently definite for those to be affected by it. People must know their duty and be
precisely aware about the prohibition created by law. This is possible only when the law is certain and definite. People can then regulate their conduct and behaviour in
order to avoid the hazard of falling within grips of the penal provisions of laws. Lord Macaulay had also emphasised the need of certainty of penal laws when he said that in
enacting a code you must have uniformity where you can have it, diversity you must have it, but in all cases, certainty. Criminal law should be certain so that men may
know in advance what conduct is criminal. In our country the penal law is enacted law and is, therefore, certain. The penal law of our country, as of rrany other countries,
declares the acts which it considers criminal and hence punishable and a person shall be punished only when he commits any of those acts. Certainty in legislation does not
only mean that crimes should be created by law but it also means that a prohibition must also be drafted in clear, certain and unambiguous language also. Glanville Williams
suggested that, "where it is impossible to draft a clear prohibition the better practice is to allow for an administrative ruling, before the conduct is embarked upon, to settle
the question of legality vel non. Thus instead of forbidding the erection of unsuitable buildings in general terms, Parliament requires the builder to obtain planning
permission and this permission is conclusive of the question whether the building is suitable. Those who object to government licensing usually wish to have no prohibition
at all : licensing may be a lesser evil than a vague criminal prohibition that is given its substance ex-post facto by the courts."1
4. Accessibility of the Law.—The penal law must be accessible and intelligible because it is
addressed to people in society who are bound to obey it on pain of punishment. 2 Thus almost in
every country penal law is enacted. But even such penal law is subject to authoritative
interpretation. There is no branch of the law of which it can be claimed with such assured
conviction that it should be certain and knowable as criminal law. It is notoriously contrary to fact
that.everyone knows the law, but it is very important that he should be able toascertain it. 3
Whatever may be the form of law it must be properly publicised then only it can be said to be duly
1. Maxwell, Interpretation of Statutes 10th Ed. 262.

2. Per Humphrey, J. in Wardale v. Binns, (1946) K.B. 451 at 457.
3. (1884) Q.B.D. 247.
4. Williams, G., Criminal Law (2nd Ed.) p. 600.
5. Williams, G., Criminal Law (2nd Ed.) p. 578.
6. Aiglerid 21 Mich L. Rev. 831 : 38 H.L.R. 963.
promulgated. Emphasising upon the importance of publicity of the law the Indian Supreme Court
in Harla v. State of Rajasthan,4 observed that : "....it would be against the principle of natural
justice to permit the subjects of a State to be penalised by laws of which they had no knowledge
and of which they could not even with the exercise of due diligence have acquired any knowledge.
Natural justice required that before a law can become operative it must be promulgated and
published."
.The rule requires that a compendious and authoritative statement of penal law should be
generally available. This may not be partly necessary where crimes merely put into legal form the
ordinary rules of morality and where many of the •technical legal rules relate only to the distinction
between crimes. The layman does not need to learn the difference between murder and culpable
homicide; in order to understand that he must not kill others^ he should know that he may be
punished if he assaults another. He does not, in general, need to be told the scale of punishment that
may legally follow each particular kind of aggravated assault.
Nevertheless, as has been opined by Glanville Williams, there are doubtful questions of
responsibility even in respect of the major crimes, for their boundaries may be drawn in a way that
is not indicated clearly by lay morality. Murder is wrong; yet it is permissible to kill in order to
prevent some crimes and arrest some criminals. What crimes and what criminals? No statute gives
the answer to this and the case-law is in a difficult condition. It is surely a reaproach to the legal
system that a bank official cannot turn to any authoritative document to discover what he may
lawfully do in resisting armed attack or repossessing himself of stolen property. 5 Thus the rule
requires that any law creating a crime must be accessible to all, it only means that if one wants to
know the law, he must be able to ascertain it.
Critique of the Nullum Crimen

The principle "Nulla poena sine lege, Nullum crimen sine lege" is not without criticism.
Some justifications in favour of it are as follows6 :
1. If punishment is regarded not as a deterrent but as a retribution for moral wrong doing; it
follows that the judge must have power to punish those whe-invent new forms of wrongdoing
within appropriate penalty. Morality can have no special exemption for those who "commit the
oldest sins the newest
1. Williams, G.; Criminal Law (2nd Ed) p. 579.
2. Ibid., p. 582.
3. Stalybrass, Modern Approach to Criminal Law, p. 66.
4. 1952 S.C.R. 110, see also State of Madras v. V.G. Row, A.I.R. 1952 S.C 196.
5. Williams, G.; Criminal Law (2nd Ed.), p. 582.
6. Ibid., p. 601.
43
kind of ways." On the other hand, if punishment can be justified only as a deterrent, new kinds of
evil conduct should be punished only prospectively by the legislature, not retrospectively by the
judge. For if the first wrong-doer had no certain foresight that he would be punished, the threat of
punishment could not deter him, and the punishment would be useless. As for future offenders, they
will be deterred just as much (or as little) the new severe punishment as the wrongdoer by being
punished retrospectively for new crime.
2. The suffering caused to the criminal by inflicting punishment can only serve utilitarian
purpose if it results in a social gain, which is not the case if judgment" is given otherwise than in
accordance with existing law.
Some of the reactions against the maxim are as follows1 :
1. The maxim would be valid only if every prospective criminal were a lawyer. In fact the
ordinary man does not know precisely what conduct is punished by the criminal law and what is
not; and the ordinary criminal does not consult a solicitor in advance of the' crime, to discover the
precise limits of, say, the law of burglary or murder. The assumption that people know the law and
are deterred by its abstract provisions is often a fiction.
2. Criminal law is generally known either because it reflects current morality or because of
convictions reported in the press. As to the first, the. ordinary person who breaks a moral principle
consciously takes the risk that his 1 conduct may be a breach of the criminal law. If it is not criminal,
he is lucky. As to the second, it is said that the existence of mala prohibita comes to the notice of
the ordinary man by convictions for the breach of it reported in the press. If a new crime is created
those who are punished first will probably not have realised that their conduct was punishable;
general realisation will come only when the convictions are reported. Allowance may be made for
the ignorance of those who are first convicted by reducing their punishment There is, therefore, no
moral difference between legislation and law making by judicial decision.
The above/argument is not always true. There may be many cases where the offenders must
have taken into consideration the existence of such crime. For example, Trade Union leaders must
have considered the legal consequences before declaring a strike. A political rebel considers himself
actifig in the true interest of society. There is no possibility of his being deterred by moral
considerations; his morality urges him to act as he does. To deter such offenders the threat of
punishment must be announced beforehand.
The argument that the criminal law becomes known from the reporting of convictions is also
overstated. Such a mode of educating the public is useful for common crimes, but it is relatively
ineffective for infrequent ones. Moreover, even if it were true that the general public is unaware of
the existence of law, *at is no reason for not having legislation laying down in clear language the
Emits of the offence before convictions take place.
3. The power of the judges to expand the criminal law is not incapable
•f being justified even on the assumptions of the strict deterrent theory of
pmishment. If an act falls outside nominated crime the offender will be
■■deterred by the existence of nominate crime but may be deterred by the
ebstence of public mischief. Spinoza says : "he who tries to determine everything
% the law will foment crime rather than lessen it".2 The difficulty is that there
1. Williams, G.; Criminal Law (2nd Ed.), pp. 601-5. X Tract
Theol. Polit Ch 20.
is difference of opinion on whether it is desirable to turn a moral wrong into a punishable crime.
4. Another objection to the maxim Nulla poena sine lege in its application to judge-made law
is that it necessitates the drawing of a tenuous line between interpretation and innovation. If a statute
declares it to be an offence to do a certain act on a vessel, the question may be whether a flying boat
is a vessel. If the court says yes, it is clarifying the criminal law in an extended sense.
To this it may be answered that almost all distinctions are matter of degree.
This fact does not destroy their utility. Secondly, the supporters of the maxim
say that judges do not only extend the law but also it condemns the judicial^
extension of old ones. \
However the maxim can be defended on two grounds—
(a) The desirability of leaving new question of criminal policy to, Parliament rather
than the judges, because of the strong differences of opinion that are apt to arise.
(b) Judges may be influenced in the rules they create by the general bad character of
particular offenders.
IX—PROTECTION TO THE ACCUSED (1) Doctrine of double
jeopardy.—The doctrine of double jeopardy means that no person can be punished more than once
for the same offence. This is an important principle of the administration of criminal justice. The
rule is contained in the common law maxim "autrefois acquit and autrefois convict" which means
that previous acquittal or previous conviction may be pleaded by the accused as a bar to the
subsequent trial. The doctrine is founded on English Common Law rule nemo debet proeadem causa
bis vexari which means that man may not be put twice in jeopardy for the same offence. The
common law rule was stated by Hawkins as follows :
"A man shall not be brought into danger....for the one and the same offence more than
once.'"
Where a criminal charge has been adjudicated upon by a court having jurisdiction to hear and
determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to
the matter so adjudicated upon and may be pleaded in bar to any subsequent prosecution for the
same offence.2
English Law.—Under English law the rule applies in the following cases :
(a) Where the acquittal was for the exact offence charged in the subsequent
indictment; or
(b) Where the subsequent indictment is based on the same act or omission in respect
of which previous acquittal was made and some statute directs that the accused shall not be
tried or punished twice in respect of the same acts or omissions.3 In order to determine
whether or not in a particular case the plea of double jeopardy would be admissible the
following inquiries are relevant—
(i) was the accused in jeopardy on the first indictment,
(ii) was there a final verdict? and
(iii) was the previous charge substantially the same as
1. 2 Hawk C. 35 S. 1.
2. R. v. Miller, 24 Q.B.D. 431.
3. R. v. Same, (1887) C.C.C. Sess. Pap. C. VII 418.
45
S present one?
If the answers to these questions are in the affirmative the plea will succeed.
Final verdict here does not only mean the verdict of conviction but includes the
verdict of acquittal as well. If the previous indictment was illegal, the accused
will not be deemed to have been in jeopardy because no conviction upon an
invalid charge would be effectual. Therefore, if the plea to jurisdiction taken by
the accused succeeds or he gets the previous order quashed, he shall remain
liable to be tried again on the same charge. i
Indian law.—The protection against being twice put in peril for the same offence in our
country is twofold. One is provided by Article 20(2) of the Constitution and the other is contained
in' section 300(1) of the Criminal Procedure Code, 1973. The constitutional guarantee as provided
by Article 20(2) of the Indian Constitution, provides as follows :
"No person shall be prosecuted and punished for the same offence
j more than once."
! In America the protection has been guaranteed by Fifth Amendment to the
i Constitution which provides that, "no person shall be put twice in jeopardy of
j life or limb." The protection under Art 20(2) of the Indian Constitution is
narrower than the protection available in England and America. In our country second trial is a bar
when a person has not only been prosecuted but punished also for the same offence for which, he is
prosecuted again. Therefore, there is no bar to a second prosecution in a case where there has been
no punishment in the first trial. In Kulwanti v. M.P. State? the Supreme Court has said—
"If there is no punishment for the offence as a result of the prosecution, clause (2) of
the Article 20 has no application....and an appeal against an acquittal if provided by the
procedure is in substance a continuance of the prosecution."
Article 20(2) implies three things : (1) a person must be accused" of an
| offence^ (2) the proceeding or the prosecution should have taken place before a
court or judicial tribunal and should be of judicial character, (3) the prosecution must be in
reference to the law which creates the offence and provides for punishment.
: In India this rule has been given statutory recognition by section 26 of the General Clauses
Act, 1897 and Section 300(1) of the Code of Criminal Procedure, 1973. 2 Section 26 of the General
Glauses Act, 1897 provides as follows—
"Where an act or omission constitutes an offence under two or more
t enactments, then the offender shall be liable to be prosecuted and punished
under either or any of these enactments, but shall not be liable to be punished twice for the
same offence."
Section 300(1) of the Code of Criminal Procedure, 1973 provides :
"A person who has once been tried by a court of competent jurisdiction for an offence
and convicted or acquitted of such offence shall, while such conviction or acquittal remains
in force, not be liable to be tried again for the same offence, nor on the same facts for any
other offence for which a different charge from the one made against him might have been
made under sub-section (1) of section 221, or for which he might have been convicted under
sub-section (2) thereof."
1. A.I.R. 1953 S.€^31.
2. Cf. Section 403 of the Criminal Procedure Code, 1898.
In the sub-sections (2) to (6) of section 300 certain exceptions to the rule contained in section 300 (1)
have been provided. The whole basis of the application of section 300(1) is that the first trial should have been
before a court competent to hear and determine the case and to record a verdict of conviction or acquittal and
for that purpose the Code makes a clear distinction between acquittal and discharge. It is also to be
remembered that where there are two alternative charges in the same trial, the fact that the accused is acquitted
of one of them will not prevent the conviction on the other.1
In the light of the above discussion it may be concluded that the protection under the Indian law is of
two kinds : one which is contained in Article 20(2) of the Constitution, and second, that which is provided by
section 300(1) of the Code of Criminal Procedure, 1973. The constitutional guarantee embodies only the
principle autrefois convict and not autrefois acquit, previous prosecution as well as conviction both is
necessary for claiming the constitutional plea against second trial for the same offence.. But as far as the rule
contained in section 300(1) of the Criminal Procedure Code, 1973 is concerned it embodies both autrefois
convict as well as autrefois acquit. Therefore, where there has been no previous punishment or conviction, but
acquittal at the end of a trial for the same offence, the person has to invoke the provisions of section 300(1) of
the Criminal Procedure Code.
(2) Presumption of Innocence.—"A man is presumed innocent until he is proved guilty," is a well-
known common law maxim. The law presumes a man to be innocent. Therefore the burden of proving the guilt
of the accused lies on the prosecution. The prosecution must prove to the satisfaction of the court every fact
essential to constitute the offence with which the accused is charged. The court may convict the accused only
when it is satisfied beyond reasonable doubt that the accused is guilty. It, therefore, follows that benefit of all
reasonable doubts must be given to the accused. This rule is based on the criminal policy that it is better that
several guilty persons should escape punishment than one innocent person should suffer. If the prosecution
fails to discharge the burden of proving the guilt of the accused to the satisfaction of the court, the accused is
entitled to acquittal even though he may have said nothing in his own defence and may not even have led any
evidence in support of his innocence. However, there are some exceptions to this rule. One of the important
category of such exceptions are statutory offences requiring no mens rea for their completion. In such statutory
offences mere non-compliance with the duty imposed by the statute raises a presumption of guilt of the
accused.
Secondly, with regard to receiver of stolen goods, the law relating to the presumption of innocence has
been modified Illustration (a) to section 114 of the Evidence Act provides :
"The court may presume that a man who is in possession of the stolen
goods soon after the theft is either, the thief or has received the goods
knowing them to be stolen unless he can account for his possession."
Thirdly, the most conspicuous modification of the rule is that proof as to previous conviction of the
accused may be given in evidence against him. This rule has been developed to this extent that evidence either
of a previous or subsequent conduct may be given to negative a defence of innocent intent. Section 75 of the
Penal Code permits within certain limits evidence of previous conviction of the accused, but it is only after the
person is found guilty of the offence under trial that such evidence is admitted.
1. State of M.P. v. Veereshwar Rao Agnihotri, 1957 S.C.J. 519.
If the guilt of the accused is proved by the prosecution to the satisfaction of the court, the burden to
prove the circumstances which show that the act of the accused was innocent lies upon the defence. In our
words if the accused pleads any thing in his defence he must prove it by adducing evidence in support of it.
It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Doubt here
does not mean any and every doubt but it means only reasonable doubt; that is a doubt for which reasons can
be given, for everything relating to human affairs and dependent on human evidence is open to some possible
or imaginary doubts. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The
degree of cogence need not reach certainty but it must carry a high degree of probability.'
The presumption which has been very well stated in Woolmington v. D.P.P.,2 is as follows :
"....it is the duty of the prosecution to prove the prisoner's guilt, subject to matters as to the
defence of insanity and subject also to any
statutory exception ............ At the end of the evidence it is not for the prisoner
to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of
the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In
either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the
prisoner, there is no such burden laid on the prisoner to prove his innocence, and it is sufficient for him to raise
a doubt as to his guilt, he is not bound to satisfy the jury of his innocence." Indian Law.—That being the
common law concept of the presumption of innocence of the accused the question is as to how far the rule
applies in our country in view of the provisions of Section 105 of the Evidence Act. Section 105 lays down :
—'When a person is accused of any offence the burden of proving the existence of circumstances bringing the
case within any of the general exceptions in the Indian Penal Code, 1860, or within any special exception or
proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the
court shall presume the absence of such circumstances."
In Prabhoo v. Emperor? a Seven Judges bench of the Allahabad High Court by a majority judgment
held that—
47
"The decision in Woolmington v. Director of Public Prosecution does no more than push to its logical
consequence the doctrine and principles of English law, namely, criminality is never to be presumed and the
accused must be regarded as innocent until the contrary is proved." Accordingly the court declared that these
are fundamental doctrines which are based on principles of natural justice. It is submitted that the burden of
proving the existence of circumstances bringing the case within the exception pleaded is no doubt thrown on
the accused by section 105 of the Evidence Act, but this does not in any way absolve the prosecution of the
burden laid on it
by section 102 of the Evidence Act. Where the evidence adduced by the accused fails to satisfy the court
affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the
1. Lord Denning in Miller v. Minister of Pensions, (1947) 2 All E.R. 372 at 377.
2. 1935 A.C. 462.
3. A.I.R. 1941 All. 402.
accused shall still be entitled to acquittal if, upon a consideration of the evidence as a whole, a reasonable
doubt is created in the mind of the court, whether the accused is or is not entitled to the benefit of the said
exception.1 This principle, however, will not apply when the accused sets up a plea of self-defence, but fails to
establish it or fails to adduce any evidence in' support of it. 2 The burden of proving alibi undoubtedly lies on
the accused setting up the defence, but even then the burden of proving the case against the accused is on the
prosecution irrespective of whether or not the accused has made out a plausible defence. 3 In the absence of
satisfactory evidence the court ought not to treat the case as positively proved beyond reasonable doubt only by
reason of the failure of the accused to put up his defence.4
In Haripada Dey v. State of West Bengal? it was held that in a criminal case the prosecution has got to
prove its case beyond reasonable doubt, and the accused is not bound to open his mouth or lead any evidence.
If the prosecution fails to discharge the burden which lies upon it to prove the charge against the accused, he is
entitled to his acquittal, even though he may have said nothing in his own s defence and may not have led any
evidence of his own.
The law relating to presumption of innocence of the accused was elaborately explained by Subba Rao, J.
in K M . Nanavati v. State of Maharashtra.6 In that case it was said that it is the duty of the prosecution to
prove the guilt of the accused or the accused is presumed to be innocent until his guilt is established by the
prosecution. But when an accused relies upon the general exceptions in the Indian Penal Code or any special
exceptions or proviso contained in any other part of the Penal Code, or in any law defining an offence, section
105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the
said presumption. The Court shall presume the absence of circumstances bringing the case within any of the
exceptions. This presumption may be rebutted by the accused by adducing evidence to support the plea or by
admission made or circumstances elicited by the evidence led by the prosecution or by combined effect of such
circumstances and the evidence adduced by the accused. But section 105 of the Evidence Act does not affect
the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is
charged. That burden never shifts.
From the above discussion it is clear that the law governing the burden of proof, the reasonable doubt
and the presumption of innocence of the accused, subject to the limitations as stated above has attained an
unassailable position in Indian Criminal jurisprudence.
(3) Doctrine of Self-incrimination.—The accused also enjoys the immunity from giving self-
incriminating evidence. In our country this guarantee has been ensured by no less than the Constitutional
provisions. Article 20(3) of the Constitution provides as follows :
"No person accused of an offence shall be compelled to be a witness against himself."
1. Prabhoo v. Emperor, A.I.R. 1941 All. 402. "
2. Bodhen v. Emperor, A.I.R. 1948 All. 223.
3. Gurcharan Singh v. State of Punjab, A.I.R. 1956 S.C. 460.
4. ZwingleJ Ariel v. State of M.P., A.I.R.' 1954 S.C. 15.
5. A.I.R. 1956,. S.C. 757.
6. A.I.R. 1962 S.C. 605.
The guarantee contained in Article 20(3). of the Constitution is said to be the off-shoot of the cardinal
principle of English criminal jurisprudence and that of our's that no one shall be compelled to give tes* :mony
which may expose him to prosecution for crime. The accused need not make any admission or statement
against his own free will and that he must be presumed to be innocent until the contrary is proved. The
essentials of Article 20 (3) as explained by the Supreme Court in M.P. Sharma v. Satish Chandra? case are as
follows :
1. It is a right pertaining to a person who is "accused of an offence".
2. It is a protection against "compulsion to be a witness".
.3. It is a protection against such compulsion resulting in his giving evidence against himself.
The first ingredient makes it clear that this right is available only to a person accused of an offence. A
person is said to be an accused person against whom a formal accusation relating to the commission of an
offence has been levelled which in normal course may result in his prosecution and conviction. 2 It is not
necessary that the actual trial or enquiry should have started before the Court. In M.P. Sharma v. Satish
Chandra? it was held that a person, whose name was mentioned as an accused in the first information report by
the police and investigation was ordered by the Magistrate, can claim the protection of Article 20(3).
Secondly, the protection is against being a witness. "To be a witness" means nothing more than "to
furnish evidence" and such evidence can be furnished through lips or by production of a thing or of a document
or in other modes.4 In short it includes oral, documentary and testimonial evidence.
Thirdly, the protection under Article 20(3) is available only against the compulsion of accused to give
evidence against himself. He may voluntarily waive his privilege by entering into the witness-box or by giving
evidence voluntarily on request. Since request implies no compulsion therefore, evidence given on request is
admissible against the person giving it.5 Compulsion means "duress" which includes threatening, beating, or
imprisoning of the wife, parent, or child of a person. To attract Article 20(3) it must be shown that the accused
was compelled to make the statement likely to incriminate him. The scope of Article 20(3) has been further
limited by the Supreme Court in Yusuf Ali v. State of Maharashtra? In this case a tape recorded statement
made by the accused, though made without knowledge of the accused that/it may be used against him but made
without force or oppression, was held to be admissible in evidence.
The Code of Criminal Procedure, 1973 also provides a number of protections against self-incrimination
of the accused. The accused is not required to make statement on oath. The accused shall not be liable to
punishment for refusing to answer questions or for giving false answers to them. Section 313 of the Criminal
Procedure Code incorporates these provisions as follows :
1. A.I.R. 1954 S.C. 300; See also Raja Narain Lai v. M.P. Mistry, A.I.R. 1961 S.C. 29.
2. Raja Narain Lai v. M.P. Mistry, A.I.R. 1961 S.C. 29; R.K. Dalmia v. Delhi-Administration,
A.I.R. 1962 S.C. 1821; K. Joseph v. Narayanan, A.I.R. 1964 S.C. 1552.
3. M.P. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300; See also R.B. Shah v. D.K. Guha, A.I.R. 1973
S.C. 1196.
4. M.P. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300.
5. State of Bombay v. Kathi Kalu A.I.R. 1961 S.C. 1808.
6. A.I.R. 1968 S.C. 147; See also S.K. Singh v. V.V. Giri, A.I.R. 1970 S.C. 2097^,-
"Power to examine the accused.—(1) In every inquiry or trial for the purpose of enabling the accused
personally to explain any circumstances appearing in the evidence against him, the court—
(a) may at any stage, without previously warning the accused, put such questions to him as the
court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on
for his defence, question him generally on the case :
Provided that in a summons-case, where the court has dispensed with the personal attendance of
the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section (1).
\ (3) The accused shall not render himself liable to-punishment by refusing to' answer such questions, or by
giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such 7 inquiry or trial, and put
in evidence for or against him in any other inquiry into, or trial for any other offence which such answers may
tend to show he has committed."
Similarly an accused person cannot be convicted on the basis of a coerced confession. Section 164(2) of the
Criminal Procedure Code provides as follows— "The magistrate shall before recording any such confession,
explain to the person making it that he is not bound to make a confession and that if he does so, it may be used
as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the
person making it he has reason to believe that it is being made voluntarily." Further protection has been
provided by the Evidence Act. Any confession made by an accused is irrelevant if it has been caused by
inducement, threat or promise.1 A confession made by an accused person to a police officer cannot be proved.2
Similarly ,/a confession by an accused person while in custody cannot be proved.3
(4) Right to Legal Aid.—Another important principle of criminal jurisprudence is that accused must have a
fair trial. It is with that end in view that criminal trials are generally held in open courts and also in presence of
the accused. If an accused is absconding the trial does not lake place until he is apprehended. Trial of an insane
person remains suspended until he is cured of the disease.fn-short we can say that no person can be tried on a
criminal charge unless he has-occasion to answer the charges. For that end it is necessary that the charges must
be made known to the accused at the earliest opportunity and in any case before the trial begins. The accused
has also the right to be defended by a lawyer. Section 303 of the Code of Criminal Procedure, 1973 provides :
"Any person accused of an offence before a criminal court, or against
49
whom proceedings are instituted under this Code, may of right be defended
by a pleader of his choice."
If the accused is in police custody he is also given reasonable opportunity of getting into communication
1. Sec. 24, Evidence Act. .
2. Sec. 25, Evidence Act.
3. Sec. 26, Evidence Act.
with his counsel for the purpose of preparing his defence. In certain cases the accused is entitled to legal
aid at the expense of the State. Section 304(1) of Criminal Procedure Code, 1973 provides as follows :
"(1) Where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where it appears to the Court that the accused
has not sufficient means to engage a pleader, the Court shall assign a
pleader for his defence at the expense of the State."
The provision of section 304(1) stated above may be extended by the State Government in relation to
any class of trials before other Courts in the State.'
In Tara Singh v. State? the Supreme Court has held that the right conferred by Section 340 (now section
303) does not extend to a right in the accused person to be provided with a lawyer by the State or by the police
or by the Magistrate. It is a privilege given to the accused and he must ask for it if he wants to engage a lawyer.
It is the duty of the Magistrate or the Judge to give him that opportunity if he asks for it. In a capital case (i.e. a
case punishable with death sentence) if the accused being poor has no means of engaging a counsel in his
defence, the State should provide for his defence. But there is no fixed rule that if an accused is not provided
with a lawyer in a capital case the trial is vitiated.3
Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to
consult, and to be defended by a lawyer of his own choice. Thus an accused person has two rights under Article
22(1) of the Constitution : (1) the right to be informed as soon as may be, of ground of arrest and (2) the right
to consult and to be represented by a lawyer of his own choice. The former right is necessary to enable the
arrested person to prepare for his defence. Under the latter clause the court is not bound to employ a lawyer
unless a request is made by the accused. There can be no denial of the right to consult a lawyer where the
accused did not make a request to the court.4
In M.H. Hoskot v. State of Maharashtra? it was held that if a prisoner sentenced to imprisonment is unable to exercise his constitutional and statutory right of appeal, inclusive of
special leave to appeal for want of legal assistance, there is implicit in the Court, under Article 142 read with Articles 21 and 39A of the Constitution, power to assign counsel for such
imprisoned individual for doing complete justice. This is a necessary incident of the right of appeal conferred by the Code and allowed by Article 136 of the Constitution. The inference is
inevitable that this is a State's duty and not Government's charity. This legal service must be free to the beneficiary but the lawyer has to be reasonably remunerated for his services. Thus right
to counsel is available not in the permissive sense of Article 22(1) and its wider amplitude but in the peremptory sense of Article 21 confined to prison situations.
In Hussainara Khatoon v. State of Bihar? the Supreme Court discovered

from the lists of under-trial prisoners filed by the Government of Bihar that several
prisoners had been in jail for periods longer than the maximum term for which they
could have been sentenced if convicted. The court observed that the State is under a
constitutional mandate to ensure speedy trial and it is the constitutional obligation of
the Supreme Court to enforce the fundamental rights of the accused to speedy trial
by issuing necessary directions to the State. Thus the continued detention of such
1. Sec. 304 (3) of the Criminal Procedure Code, 1973.
2. 1951 S.C.R. 729.
3. Janardhan Reddy v. State of Hyderabad, A.I.R. 1951 S.C. 217.
4. Ram Swamp v. Union of India, A.I.R. 1965 S.C. 247.
5. 1978 Cr. L.J. 1678 (S.C).
under-trial prisoners being totally unjustified, the court directed that these prisoners
should be released forthwith as "continuance of their detention is clearly illegal and
in violation of their fundamental right under Article 21 of the Constitution." It was
further observed that free legal service to indigent and poor accused is implicit in the
guarantee under Article 21 because free legal service is an inalienable element of
'reasonable, fair and just' procedure.
Another important case on the point is Khatri v. State of Bihar,2 commonly
known as Bhagalpur, blinded prisoner's case. Such prisoners were not produced
before Magistrates subsequent to their first production. They continued in the jail
without any remand order. It was held that the Magistrate or Session's Judge, before
whom the accused appeared, is under an obligation to inform the accused that if he
is unable to engage the services of a lawyer on account of poverty or indigence, he

is entitled to obtain free legal services at the cost of the State. It was further
observed that this constitutional obligation to provide free legal service to the poor
accused does not only arise when the trial commences but is also available when the
accused is for the first time produced before Magistrate. This right is implicit in the
guarantee of the Constitution.
In Kadra Pehadiya v. State of Bihar? the Supreme Court directed the Sessions
Judge, Dumka to provide legal representation by fairly competent lawyers at the cost
of the State to the four under-trial prisoners rotting in jail \ for more than 8 years.
A perusal of the above discussion leads to the conclusion that in spite of the
statutory provisions to provide free legal service to the poor the situation is far from
satisfactory. States have failed in their duty. Very often inexperienced and young
lawyers are engaged on behalf of the accused person. However, judicial mandates
have gone a long way in enforcing the constitutional guarantee of free legal aid to
the poor by issuing necessary direction to the State and to subordinate judiciary.
However certain Bar Associations have set up voluntary legal aid societies
and associations to provide for free legal aid to the poor accused. There has been a
growing public opinion for providing free legal aid to poor accused persons. The
present legislative provisions in this regard can in no way be said to be satisfactory.
Let us hope that the Government would provide for some more purposeful
programme of legal aid to the poor by bringing about some legislation on the
matter.
(5) Protection against illegal arrest, detention and custodial death.—In
1. 1979 Cr. L.J. 1045 (S.C).

2. 1981 Cr. L.J. 470 (S.C).
3. 1981 Cr. L.J. 481 (S.C).
Joginder Kumar v. State of U.P.? the Supreme Court has laid down guidelines governing arrest of a person
during investigation. This has been done with a view to strike a balance between the needs of police on the one
hand and the protection of human rights of citizens from oppression and injustice at the hands of law enforcing
agencies on the other. It was held by the Court that a person is not liable to arrest merely on the suspicion of
complicity in an offence. There must be some reasonable justification in the opinion of the police officer
effecting the arrest that such arrest was necessary and justified.
In the above case, a practising lawyer had been called to the police station in connection with a case
under inquiry on 7-1-1994, but not receiving any satisfactory account of his whereabouts the family of the
detained lawyer filed a habeas corpus petition before the Supreme Court and in compliance with the notice, the
lawyer was produced on 14-1-1994 before the Court. The police contended that the lawyer was not in detention
but was only assisting the police to detect some cases. The Court held that though at this stage the relief in
habeas corpus could not be granted yet it was expedient to lay down certain requirements to be followed by the
police before arresting a person.
The following guidelines were laid down by the Supreme Court :
51
1. An arrested person being held in custody is entitled, if he so requests to have one friend,
relative or other person who is known to him or likely to have an interest in his welfare told as far as
practicable that he has been arrested and where he is being detained.
2. Police officer shall inform the arrested person when he is brought to the police station of this
right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest.
These protections from power of police flow from Article 21 and Article 22 of the Constitution and
therefore they must be enforced strictly.
In an earlier landmark judgment in Nilabati Behra v. State of Orissa,2 the Supreme Court awarded
compensation of Rs. 1,50,000 to the mother of the deceased who died in the police custody due to beating. In
that case the deceased aged about 22 years was taken into police custody at about 8 a.m. on December 1, 1987
by A.S.I, in connection with the investigation of an offence of theft in village and detained at the police
outpost. He was handcuffed, tied and kept in custody in the police station. His mother went to the police station
at about 8 p.m. with food for him which he ate. At about 2 p.m. on December 2, the petitioner came to know
that the dead body of her son with a handcuff and multiple injuries was found lying on the railway track. The
police version was that the deceased had escaped from police .custody at about 3 a.m. by chewing off the rope
and thereafter his body was found at the railway track. On the basis of evidence and medical report it was
found that the deceased had died due to beating and the Court awarded Rs. 1,50,000 as compensation to the
deceased's mother.
In another landmark judgment in D.K. Basu v. Slate of West Bengal? the
1. (1994) 4 S.C.C. 260.

2. (1993) 2 S.C.C. 746 ; 1993 Cr. L.J. 2899 (S.C).
3. A.I.R. 1997 S.C. 610.
Supreme Court has laid down detailed guidelines to be followed by the Central and State investigating and
security agencies in all cases of arrest and detention. The matter was brought before the Court by Dr. D.K.
Basu, Executive Chairman of the Legal Aid Services, a non-political organisation, West Bengal through a
public interest litigation. He addressed a letter to the Chief Justice drawing his attention to certain news items
published in the Telegraph and Statesman and Indian Express regarding deaths in police lock-ups and custody.
This letter was treated as a writ petition by the Court.
Kiildip Singh and Dr. A.S. Anand, JJ., observed that custodial death is perhaps one of the worst crimes
in a civilised society governed by the rule of law. Justice Anand who delivered the said judgment on behalf of
the Court held that, any form of torture or cruel, inhuman or degrading treatment would fall within the
inhibition of Article 21 of the Constitution whether it occurs during investigation, interrogation or otherwise.
It was held by the Court that the precious right guaranteed under Article 21 of the Constitution could not
be denied to convicts, under-trials, detenues and other prisoners in custody except according to the procedure
established by law.
The. Supreme Court laid down following basic 'requirements' to be followed in all cases of arrest or
detention till legal provisions are made in that behalf as a measure to prevent custodial violence—
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a
register.
(2) The police officer carrying out the arrest of the arrestee sh prepare a memo of arrest at the
time of arrest and such memo shall attested by at least one witness, who may either be a member of the
famil of the arrestee or a respectable person of the locality from where the arris made. It shall also be
countersigned by the arrestee and shall contain t time and date of arrest.
(3) A person who has been arrested or detained and is being held ' custody in-a police station
or interrogation centre or other lock-up, shall entitled to have one friend or relative or other person
known to him having, interest in his welfare being informed, as soon as practicable, t he has been
arrested and is being detained at the particular place, unl the attesting witnesses of the memo of arrest is
himself such a friend or relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arres' must be notified by the police
where the next friend or relative of arrestee lives outside the district or town through the Legal Aid
Organisa'" in the District and the Police Station of the area concerned telegraph! within a period, of 8 to
12 hours after the arrest.
(5) The person arrested must -be made aware of this right to someone^ informed of his arrest
or detention as soon as he is put u arrest or is detained.
(6) An entry must be made in the diary at the place of deten regarding the arrest of the person
which shall also disclose the name of
next friend of the person who has been informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any, present on his/her body must be recorded at that time. The 'Inspection
Memo' must be signed both by the arrestee and the police officer effecting the arrest and its copy
provided to the arrestee and fhe> police officer effecting the arrest.
(8) The arrestee should be' subjected to medical examination by a trained doctor every 48 hours
during his detention in custody ^by a doctor on the panel of approved doctors appointed by Director,
Health Services of the State or Union Territory concerned. Director Health Services should prepare such
a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent
to the illaqa. Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
(11) A police control room should be provided at all districts and State headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be communicated by the
officer causing arrest within 12 hours of effecting the arrest and at the police control room it should be
displayed on a conspicuous notice board.
The Supreme Court also made it clear that failure to comply with the above requirements, apart from
rendering the official concerned liable for departmental action would also render him liable to -be punished for
contempt of court and the proceedings for contempt of court could be instituted in any High Court of the
country, having territorial jurisdiction over the matter.
It was further observed that the requirements mentioned above shall be forwarded to the Director
General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to
circulate the same to every police station under their charge and get the same notified at every police station at
a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India
Radio besides being shown on the National Network of Doordarshan and by publishing and distributing
pamphlets in the local language containing these requirements for information of general public. Creating
awareness about the rights of arrestee would in our opinion be a step in the right direction to combat the evil of
custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to
curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to
custodial commission of crimes.
The Court also made it clear that these requirements would, with equal force apply to the other
governmental agencies like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard,
CRPF, BSF, CISF, the State Armed Police, Intelligence agencies like the Intelligence Bureau, RAW, CBI,
CID, Traffic Police, Mounted Police and ITBP.
These requirements are in addition to the Constitutional and statutory safeguards and do not detract
from various other directions given by courts from time to time in connection with the safeguarding of the right
and dignity of the arrestee.
Referring to payments of compensation in cases of custodial death, the Court said monetary or pecuniary
compensation is an appropriate and indeed effective and sometimes the only suitable remedy for redressal for
established infringement of the fundamental right to life of citizen by the public servants and the State was
vicariously liable for their act.
The claim of the citizen is based on the principle of strict liability to which the defence of sovereign
immunity is not available and the citizen must receive the amount of compensation from the State, which shall
have the right to be indemnified by the. wrong-doer, the Court observed.'
53
1. D.K. Basu v. State of West Bengal, A.I.R. 1997 S.C. 610.
/
THE INDIAN PENAL CODE
(ACT NO. XLV OF 1860) (Received the assent o f the Governor-

General on October 6, 1860)
CHAPTER I
INTRODUCTION
Preamble.—Whereas it is expedient to provide a general Penal Code for India; it is enacted as

follows :
1. Title and extent of operation of the Code.—This Act shall be called the Indian Penal Code, and
shall extend to the whole of India except the State of Jammu and Kashmir.
COMMENT
History of Criminal Law.—The history of criminal law in India may conveniently be
studied under three heads, namely, (i) Ancient Hindu criminal law, (ii) Mohammedan criminal law
and (iii) English criminal law.
Ancient Hindu Criminal Law.—The penal law of ancient communities is not the law of
crimes, it is the law of wrongs 1 because in those days there was so such classification of wrongs as
torts and crime. The guilty intention was not necessary element of crime in those days. There was
not much difference in the nature of punishment for the two modern varieties of wrongs. This view
of ancient penal law, though true in case of almost all systems of the world, is not correct in case of
ancient Hindu Criminal Law. In the Hindu Law punishment of crimes occupies a more prominent
place than compensation for wrongs. Although under certain circumstances wrong-doer had to
compensate the person but it was generally levied in addition to or in substitution for the penalty. 2
The right to punish the offender lay in the hands of individual in western criminal jurisprudence and
this right was only during middle ages transferred from individual to the society and later on to the
State. But in ancient Hindu Law it was the duty of the king to punish the offender. The Hindu law-
givers did not expressly distinguish between civil wrong and crime, still the difference in penalties
and procedure which they have prescribed indicates that they clearly realised in what way the
criminal aspect of an act differed from its civil aspect.3
Mohammedan Criminal Law.—After the conquest of the country by Muslims
Mohammedan criminal law was introduced in our country, and Indian Courts applied Mohammedan
criminal law in administration of justice. This law was based on Qoran and Hadis and was
developed through Ijma and Kiyas. The Kazis were responsible for elucidating and expounding of
the laws.
Crimes were divided into two classes, namely (i) crimes against God e.g. adultery and
drunkenness); and (ii) crimes against man (e.g. murder and robbery). The offences against God
were considered as public wrongs and could, therefore, be punished by community or society. The
offences against man were private wrongs and therefore could be punished by individuals. In most
1. Maine; Ancient Law.

2. Sen, P.N.; Hindu Jurisprudence. Ch. XII.
3. Ibid.
( 69 )
of the cases crime was a wrong done to the individual wronged and not to the State. Therefore,
prosecution lay in the hands of the individual. Punishment was of four kinds, namely (i) Qisas
(retaliation), (ii) Diyut (blood money), (iii) Hadd (defined punishment which could neither be
increased nor reduced) and (iv) Tazer and Siyasa (discretionary and exemplary punishment). The
rules of evidence were also defective. Some of them were even against the rules of natural justice.
The procedure to be followed by the courts in trial of criminal cases, was also unsatisfactory. In
some cases the law was defective to such an extent that it was impossible for any civilized
government to administer it. For example, a non-Mohammedan could not be admitted as a witness
in evidence in any case affecting a Mohammedan. Similarly, the punishment of stoning for sexual
offences or mutilation for theft was impossible to enforce.
English Criminal Law.—When East India Company took over the administration of Indian
dominion,. Mohammedan criminal law was in force. In 1765 the East India Company acquired the
Nizamat of the three provinces of Bengal, Bihar and Orissa. The Company had then to administer
justice. In the beginning they adopted the policy of maintaining status quo. Gradually the defects of
Mohammedan criminal law became clear and therefore, efforts were made to remove those defects.
The first attempt was made by Warren Hastings who tried to do away with the punishment of
mutilation for dacoity. Some important criminal reforms were made by Lord Cornwalis. Law of
iiomicide was changed and murder was no more a private wrong. Law relating to robbery, perjury
and sexual offences was also changed. Effort was made to rationalise the punishment by making it
proportionate with the crime. A Regulation of the year 1832 provided that in case of a trial for an
offence under the Regulations non-Muslims could claim exemption from trial under the
Mohammedan criminal law. But the changes introduced in Mohammedan criminal law were not
uniformally applicable to all Presidencies. Most of them applied in Bengal alone. The result was
that different rules prevailed in different Presidencies. These short-comings became quite obvious
when all the Presidencies were put under the control of Central Government. Therefore, a
Commission was appointed to examine these conflicting features and suggest necessary
modifications.
Later on it was realised that not satisfactory improvement was possible by piece meal
legislation and a Penal Code was thought necessary. In the Presidency of Bombay a Penal Code was
enacted under the guidance of the Governor Elphinstone which Code was known as Elphinstone
Code. This Code was short and sketchy and consisted of forty-one sections only. In 1844 a separate
Code was drawn for the Province of Punjab after its annexation. These Codes were meant for the
respective provinces only.
An all India Legislature were created by the! Charter Act of 1833. The office of Law
Member in the Council of Governor General was created, Provision was also made for the
appointment of a Law Commission.
The first Law Commission was appointed in 1834 with Lord Macauley, the then Law
Member as its chairman, Sarvshri Macleod, Anderson and Millet were the other members of the
Commission. The Commission prepared a draft Penal Code for India which was submitted to the
Governor General of India in Council on October 14, 1837. It was revised by Sir Barnes Peacock,
Sir J.W. Colville and several others. The drafting was completed in 1850 and it was presented to
the Legislative Council in 1856. The Bill was passed on October 6, 1860. It received the assent of
the Governor General on the same date and thus became the Indian Penal Code, 1860. The Code
came into operation on 1st January, 1862.
Critique.—During the Moghul rule Courts administered the Mohammedan criminal law to
the exclusion of Hindu Law. But Mohammedan criminal law by and by gave way to English
criminal law with the increase of British influence in the Indian sub-continent. As such prior to
1860, the English criminal law as modified by several Acts, was administered in the three
Presidency-towns of Bombay, Calcutta and Madras. But in mofussil, the administration of criminal
justice was mainly dominated by the Mohammedan criminal law, the glaring defects of which were
partly removed by Regulations of the Local Governments. In 1827 the judicial system of Bombay
was revised and criminal law was provided through Regulations. But in the other two Presidency-
towns of Calcutta and Madras, Mohammedan criminal law continued till, 1860 when it was finally
replaced by the Indian Penal Code.
Title.—The title of a statute is an important part of the Act, and may be referred to for the
purpose of ascertaining its general scope and of throwing light on its construction, although it
cannot override the clear meaning of the enactment.'
Preamble.—The preamble states the object of any statute. The object of this Act is to provide
a general Penal Code for India. Although the object of this Act as embodied in its preamble was to
provide a general Penal Code for India, the Act does not repeal the penal laws which were in force
at the time of coming into force of the Code. This was so because the Code does not contain all the
offences and it was possible that some offences might still have been left out of the Code which
were not intended to be exempted from penal consequences. This Code consolidates the whole of
the law on the subject and is exhaustive on the matters in respect of which it declares the law. It
does not mean that the Penal Code is the exhaustive and complete encyclopaedia of offences and no
offences other than those provided for by the Code can be thought of. In addition to the Code there
are many more penal statutes wherein various offences have been created.
Preamble generally spates the object and intention of the legislature in passing the enactment
and it may be consulted to solve any ambiguity or to fix the meaning of the words which may have
more than one meaning or to keep the effect of the Act within its real scope whenever the enacting
part is in any one of these respects open to doubt. 2 But the preamble cannot either restrict or extend
or modify the enacting part when the language, the object and the scope of the Act are not open to
doubt.3 The preamble of a statute may be relied upon as aid to the understanding of the meaning
thereof, or for determining the general object and intention of the Legislature in passing the
enactment. It may be consulted in solving any ambiguity.4
It is a key to open the minds of the framers of the Act The function of the preamble is to clear
any ambiguity in the enacting part but not to create it.
Operation of the Code.—The,Indian Penal Code extends to the whole of
1. Aswin Kumar, A.I.R. 1952 S.C. 369; Popatlal Shah, A.I.R. 1953 S.C. 274.
2. Maxwell Interpretation of Statutes (7th ed.) at p. 37.
3. Ibid, at p. 39.
4. Secretary of State v. Vasudeo, (1928) 30 Bom. L.R. 1494 at 1498.
India except the State of Jammu and Kashmir. Section 18 of the Penal Code defines 'India' which
means the territory of India excluding the State of Jammu and Kashmir. The territory of India is
defined by Article 1 (3) of the Indian Constitution. It includes : (a) the territories of the States; (b)
the Union territories specified in the First Schedule; and (c) such other territories as may be
acquired. The territorial waters of India also form part of the territory of India. Therefore any
offence committed within the territorial waters of India will also be deemed to have been committed
within India.
2. Punishment of offences committed within India.—Every person shall be liable to punishment
under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which,
he shall be guilty within India.
COMMENT
The criminal Courts in India exercise jurisdiction either because a crime is committed by any
person, national or foreigner within the Indian territory or because a crime though committed
outside or beyond the territory of India, is committed by an Indian national. The former is known as
intra-territorial jurisdiction and the latter as extra-territorial jurisdiction. Jurisdiction is mainly of
two kinds—
(i) territorial jurisdiction, and
(ii) personal jurisdiction.
Territorial Jurisdiction.—Where a crime is committed within the territory of India, the
Code shall apply and the courts can try and punish irrespective of the fact that the person who had
committed the crime is an Indian national or a foreigner. This is called territorial jurisdiction
because submission to the jurisdiction of the court is by virtue of the crime being committed within
the Indian territory. Here jurisdiction attaches with the territory. The Code applies to any offence
committed :
(i) within the territory of India as defined in Article 1 (3) of the
Constitution.
(ii) within the territorial waters of India, and
(iii) on any ship or aircraft either owned by India or registered in
India.
Territorial jurisdiction is again of two kinds :
(i) Intra-territorial jurisdiction; and
(ii) Extra-territorial jurisdiction.
Intra-territorial jurisdiction is one, where a crime is committed within the territory of India by
any person. Section 2 of the Code deals with intra-territorial jurisdiction of the Courts.
Extra-territorial jurisdiction.—Where a crime is committed outside the territory of India
by an Indian national, such a person may be tried and punished by the Indian Courts and such
jurisdiction is known as extra-territorial jurisdiction. Sections 3 and 4 of the Penal Code deal with
extra-territorial application of the Code.
Personal Jurisdiction.—Where a crime is committed by any person whether an Indian
national or a foreigner, within the territory of India, the Code shall apply because the person who
commits the offence causes the effect on Indian soil. Section 2 of the Code deals with such cases.
Admiralty Jurisdiction.—Admiralty Jurisdiction is exercised in trying and punishing the
offences committed on the high seas. High seas are known as no
INTRODUCTION 57
man's territory. The jurisdiction over the ships on the High seas is founded on the principle that the
ship is a floating island belonging to the nation whose flag she is flying. Section 4 of the Code deals
with admiralty jurisdiction.
Intra-territorial jurisdiction.—Section 2 deals with intra-territorial jurisdiction of the
Code. According to this section the Code applies to every person in any part of India for every act
or omission contrary to the provisions of the Code. Section 2 of the Code does not prescribe any
time limit within which prosecution should be launched. It is based on the rule Nullum tempus
occurrit regi which means lapse of time does not bar the right of the Crown.
Every Person.—The words 'every person' under this section means and includes a citizen of
India as well as a non-citizen. Any person irrespective of his nationality, rank, caste or creed is
triable by Indian Courts provided the offences with which he is charged has been committed on any
part of the Indian territory. Any foreigner who enters the Indian territories accepts the protection of
Indian laws, and submits to the operation of the laws and to the jurisdiction of the Indian courts. A
foreigner cannot be allowed to plead that he did not know that the act he was doing was wrong,
because of the act not being an offence in his own country.1
In Esop2 a person, native of Baghdad was charged for committing an unnatural offence on
board an East Indian ship, lying in St. Katherine' dock. That act done would not have constituted an
offence in his home country. It was held that he was guilty of the offence and the fact that the act
would not have amounted to an offence in his own country could not be admitted as a legal defence
if his act constituted an offence in India.
A foreigner who commits an offence within India is guilty and can be punished without any
limitation as to his corporeal presence in India at the time.3
While under the Code there are no exceptions to the jurisdiction in favour of any person,
certain persons are immune either by virtue of the provisions of the Constitution or under the law of
the civilised nations of the world.
1. Foreign Sovereigns.—It is a common understanding between the nations that one
sovereign cannot be subject to the law of the other. One sovereign is in no respect amenable to
another. Sovereignty admits no superior, therefore, it would be incompatible with the concept of
sovereignty to submit to the jurisdiction of some other sovereign. Chief Justice Marshall observed
in Schooner Exchange v. M' Faddon* that one sovereign being bound by the obligations of the
highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights
within the jurisdiction of another, can be supposed to enter a foreign territory only under an express
licence, or in confidence that the immunities belonging to his independent sovereign nation, though
not expressly stipulated, are reserved by implication, and will be extended to him.
2. High dignitaries of the State.—The President of India and the Governors of the State are
exempt from the jurisdiction of the Code. Article 361 of the Constitution provides that 'no criminal
proceedings shall be instituted or continued against the President or a Rajyapal of a State in any
court during the term of his office'.
3. Ambassadors and diplomats.—Ambassadors and some other foreign diplomats enjoy

immunity from the jurisdiction of the courts. They enjoy the same immunity as the sovereign or the
State which they represent. Their immunity is based on the principle that they, being representatives
1. Esop, (1836) 7 C. & P. 456.
2. (1836) 7 C. & P. 456.
3. Mobarik Ali Ahmed v. State of Bombay, A.I.R. 1957 S.C. 857.
4. (1812) 7 Cranch 116.
of the sovereign or the State which sends them, are admitted upon the faith to be clothed with the
same independence of and superiority to all adverse jurisdiction as the sovereign authority whom
they represent would be.1 He does not owe even temporary allegiance to the sovereign to whom he
is accredited. He is supposed to be still living in his own country. 2 For certain purposes the premises
of the foreign missions are not considered as part of this country but as a part of the country which
they represent. They enjoy this immunity on mutual basis. Therefore, offences committed within the
premises of the foreign mission cannot be tried by the local courts. If a person enjoying diplomatic
immunity grossly offends, misuses his office, or does an act detrimental to the interest of the
country, the remedy is to make a demand of his recall by the sending State, where appropriate
action may be taken against him at the discretion of the sovereign whom he represents. Such
privileges and immunities are also available to the United Nations, its representatives as well as to
other international organisations and their representatives.
4. Alien Enemies.—Alien enemies cannot be tried by the criminal courts of India in respect
to their acts of war. If an alien enemy commits a crime unconnected with war as theft, cheating etc.,
he would be triable by criminal court. For acts of war they shall be dealt with under martial law.
1. Per Brett L.J. in the Parliament Beige (1880) 5 P.D. 197 at 207.
2. Magdalena Steam Navigation Company v. Martin, (1859) 2 E. & E. 94 at 111.
58
INDIAN PENAL CODE
5. Foreign army.—When armies of any foreign State are stationed on the Indian soil with
the consent of the Indian Government, they are immune from the jurisdiction of the local criminal
courts. It is a settled international practice.
6. Warships.—Man-of-war of a State in foreign waters are exempt from the jurisdiction of
the State within whose territorial jurisdiction they are. There are two theories relating to jurisdiction
on ships in territorial waters. One is that public ship of a nation for all purposes either is, or is to be
treated by other nations as, part of the territory of the nation to which she belongs. The other theory
is that a public ship in foreign waters neither is, nor is to be treated as territory of her own nation. In
accordance with the principles of international law, certain immunities are accorded to the ships, its
crew, and its contents by the domestic courts. The immunities can be waived by the country to
which the public ships belong. Warships of a foreign country can enter territorial waters of India
only with the permission of the Government of India.
7. Corporation.—The word 'person' is defined in section 11 of the Code. It includes any
company or association, or body of persons, whether incorporated or not. But the words "every
person" in section 2 mean only natural person and do not include judicial persons such as
corporations. A crime, if committed by a corporation, is only punishable as committed by such
members of it as took part in the act.
8. Vicarious liability of master for acts of his servants.—A master is generally liable for
criminal acts done by his servants with his consent, connivance or knowledge or which he had
abetted but the question is whether he is liable for criminal acts of his servants done without his
knowledge but in the course of his employment. A master is not criminally liable for the
unauthorised acts of his servants. He only is criminally punishable, who does the act or permits it to
be done by others.1 The following are some of the exceptions to this rule :—
(i) Statutory liability.—While prima facie a principal is not criminally
responsible for the acts of his servants, yet the Legislature may prohibit an act
or enforce a duty in such words as to make the prohibition or the duty absolute;
in which case the principal is liable if the act is in fact done by his servants.
To ascertain whether absolute liability has been created by a statute or not one
must look to the object of the statute, the words used and the nature of duty
imposed. Statutory liability has been imposed by section 154 of the Penal Code
upon the owner or occupier of the land for the failure of his agent or manager
to give notice to the police officer of any unlawful assembly or riot being
committed on such land within his knowledge. Statutory liability has also been
created under many more enactments such as the Opium Act, the Prevention of
Food Adulteration Act and the Gambling Act etc.
(ii) Public Nuisance.—The owner of works, carried on for his benefit by
his agents, is liable to be charged for public nuisance caused by acts of his
agents, in carrying out the works, though done by them without his knowledge
and contrary to his general orders.2
(iii) Neglect of duty.—If a person neglects the performance of an act,
which is likely to cause danger to others, and entrusts it to unskilful hands he
will be, in certain cases, criminally liable. But if a skilful person is employed,
the employer will not be liable in the absence of express malice. 3 In Dixon? a
master employed a servant to use alum in leaves, the unrestrained use of that
drug being noxious, and did not restrain him in the use of it, the servant used
it in excess. It was held that the master would be liable if the servant used it
in excess, because he did not apply proper precautions against its misuse.
Within India.—A person is triable by Indian Municipal courts only when the offence has
been committed within India. If the offence is committed outside India it is punishable under the
Penal Code only when covered by special provisions such as in sections 3, 4, 108A etc. of the Code.
The words "within India" defines the territorial jurisdiction of the Penal Code. It states the territory
within which the Code shall be applicable. The territory of India includes the territories as defined
by Article 1(3) of the Constitution of India as well as the territorial waters of India. In view of the
Presidential Proclamation of September 30, 1967, the territorial waters of India extend into the sea
upto a distance of twelve nautical miles measured from the appropriate base line. Territorial waters
means that portion of the sea lying along and washing its coast, which is commonly called its
maritime territory. The laws of the State, therefore, apply to that part of the sea also. Any offence
committed wiihin the territorial waters are, therefore, triable and punishable under the provisions of
the Penal Code. -In Kastya Rama5 the inhabitants of a village pulled up and removed a number of
fishing stakes lawfully fixed in the sea within three miles from the shore by the^ inhabitants of a
neighbouring village. It was held that the local criminal court had jurisdiction over the offenders. In
this case the offence committed was mischief. The Penal Code was held to be applicable to this
1. 2 Hale P.C. 114; T.D. Board v. S.N. Moothathu, (1955) Cr. L.J. 845.
2. Stephens, (1886) L.R. 1 Q.B. 702.
3. Srish Chandra Sircar, A.I.R. 1919 All. 385.
4. (1814) 3 M. & S. 11.
5. (1871) 8 B.H.C. (Cr.C.) 63.
INTRODUCTION 59
case. The municipal criminal courts have also jurisdiction over its ports, harbours, river mouths,
land locked bays, wells and mines and upto a certain height in air space.
Constructive presence.—A person may cause injury to a person on Indian territory, although
the offender may be physically present in the territory of another country. For example, a national of
Pakistan fires from the other side of the borders and a person within the Indian border is killed. The
offender may be prosecuted within India if his presence in India for the trial can be secured. 1 If the
relations, friends or other Indians rush and drag the Pakistani to border Indian Police Station, the
Indian Courts can try the offender for murder. It was held in Loise2 case that where a crime is
committed in the territorial jurisdiction of one State as the direct result of the act of a person at the
time corporeally present in another State, international law, by reason of the principle of
constructive presence of the offender at the place where his act took effect, does not forbid the
prosecution of the offender by the former State, should he come within its territorial jurisdiction.
3. Punishment of offences committed beyond, but which by law may be tried within India.—Any
person liable, by any Indian Law, to be tried for an offence committed beyond India shall be dealt with
according to the provisions of this Code for any act committed beyond India in the same manner as if
such act had been committed within India.
COMMENT
Sections 3 and 4 relate to extra-territorial operation of the Code. The Indian criminal courts
have jurisdiction over citizens of India both within and beyond the limits of India. Ordinarily the
courts of a country have intra-territorial jurisdiction and the law of a country can be operative only
within its territory because no State can allow another State to exercise power of government within
its territory. However in exceptional circumstances laws having extra-territorial operation may be
enacted. Article 245 (2) provides that : "no law made by Parliament shall be deemed to be invalid
on the ground that it would have extra-territorial operation".
This section provides that an act constituting an offence in India shall also be an offence
when committed outside India. The words "by Indian Law" used in section 3 restrict the operation
of this section to the cases specified in the Extradition Act, 1962 and sections 187 and 188 of the
Criminal Procedure Code, 1973. The offence may be committed by any person who, at the time of
committing the offence charged, was amenable to the jurisdiction of the Indian Courts. Such person
may or may not be an Indian citizen. If an Indian does an act in a foreign country which is not an
offence in that country but is an offence in India, he may be prosecuted in India. If an Indian
commits adultery in England, which is not an offence in that country, but is an offence in India, he
may be prosecuted in India. A, an English has sexual intercourse with B, wife of C in England,
without consent or connivance of C (adultery being not an offence in England), A can be prosecuted
for the offence of adultery in India provided his presence can be secured in India. In the above case
it will not make any difference if C was living in India provided that B was in England where
adultery was committed. A, an English has a letter of credit upon B, an Indian for Rs. 10,000
written by Z another Indian. A goes back to his home country and there in order to defraud B, he
adds a cipher in the letter of credit and makes the sum 1,00,000 intending that it may be believed by
B that Z so wrote the letter. A has committed forgery and can be prosecuted in India although he is
not corporeally present within India. 1 In all these cases the offence is committed outside India but
1. Mobarik Mi Ahmad v. State of Bombay, 1958 S.C.R. 328.

2. (1927) S.J. 770; L.Q.R. Vol. XLIV, 151.
will be triable in India in the same manner as if such act has been committed within India. Thus the
words "as if such act had been committed within India" used in section 3 create a kind of fiction in
case of offences committed beyond India.
A, a Pakistani national doing business in Karachi with dishonest intention, made 'false
representation to B at Bombay through letters, telegrams and telephonic talks that he would ship
rice to B on receipt of money. The complainant B sent the money in the hope of getting the supply
of rice which was never shipped. A was arrested when he arrived in Bombay and was prosecuted.
Here A has committed the offence of cheating and can be prosecuted in India
4. Extension of Code to extra-territorial offences.—The provisions of this Code apply also to any
offence committed by—
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be;
2
[(3) any person in any place without and beyond India committing offence targeting
a computer resource located in India.]
3
[Explanation.—In this section—
(a) the word "offence" includes every act committed outside India which, it committed
in India, would be punishable under this Code;
(b) the expression "computer resource" shall have the meaning assigned to it in clause
(k) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).]
Illustration
60
INDIAN PENAL CODE
A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder
in any place in India in which he may be found.
COMMENT
This section confers jurisdiction upon Indian Criminal Courts in the following cases :
(i) offences committed by any citizen of India in any place without
and beyond India, and
(ii) offences committed by any person on any ship or aircraft
registered in India wherever it may be.
When an offence is committed beyond the limits of India but the offender is found within the
territorial limits of India then two courses are open :
(i) he may be given up for trial in the country where the offence
was committed i.e. he may be extradited to that country, or
(ii) he may be tried in India.
Extradition.—The first category of cases are covered by the Extradition Act, 1962.
Extradition means the surrender by one State to another of a person who is found within the
territory of the former, and is accused of having committed a crime within the territory of the latter;
or who having committed a crime outside the territory of the latter is one of its subjects and as such
by its law amenable to its jurisdiction. Surrender of a person by one State to another is a political act
and is done in pursuance of a treaty or some ad-hoc arrangement. Any question relating to the
1. Mobarik All v. State of Bombay, A.I.R. 1957 S.C. 857.
2. Inserted by the Information Technology (Amendment) Act, 2008 (10 of 2009).
3. Substituted by the Information Technology (Amendment) Act, 2008 (10 of 2009).
surrender of a criminal is determined according to the domestic law of the State on which
requisition is made.1 However, if the offence complained is of a political nature, the offender,
instead of being surrendered may be granted political asylum. Extradition of a criminal is a well
recognised rule of International law and is governed by the Extradition treaties. Extradition is made,
as to a legal right, in respect of only those countries with which there is an agreement for this
purpose, although countries, generally do not, as a matter of international practice, even in absence
of an Extradition treaty refuse extradition. In India the question of extradition is determined by the
Extradition Act, 1962.
Extra-territorial jurisdiction.—Indian courts have power to try offences committed outside
India on (a) land, (b) high seas, or (c) aircraft.
Land.—By virtue of sections 3 and 4 of the Penal Code and section 18 of the Criminal
Procedure Code, Indian courts can take cognizance of offences committed beyond the territories of
India. When an act, has been done by a citizen of India which would be an offence punishable,
under the Penal Code if it had been committed in India, section 1 of the Code makes it an offence
and it can be dealt with under section 188 of the Criminal Procedure Code. 2 The provisions of
section 4 shall not apply if the offender, at the time of commission of the offence, was not a citizen
of India1.3 A person who was not an Indian citizen at the time of commission of the offence, but
acquired Indian citizenship subsequent to the commission of the offence, cannot be said to be
amenable to the jurisdiction of the Indian courts because subsequent events cannot confer
jurisdiction retrospectively. A person, having committed an offence outside India may be tried at
any place within India where he is found. 'Found' under section 188 of the Cr.P. Code means not a
place where a person is discovered but where he is actually present." A man brought to a place
against his will can be said to be found there. 5 He cannot be allowed to plead that he was forcibly or
illegally brought there from a foreign country. 6 Section 4 applies only when the acts committed
amount to an offence under the Penal Code.7 Where an act constituting an offence is done by an
Indian citizen partly within India and partly outside the territory of India, he can be tried by the
Indian courts provided the two acts together constitute an offence under the Code.8
High Seas.—The jurisdiction to try offences committed on the high seas is known as
admiralty jurisdiction. It is founded on the principle that a ship on the high seas is considered to be a
floating island belonging to the country whose national flag she is flying. Admiralty jurisdiction
extends over :
(1) offences committed on Indian ships on the high seas;
(1) offences committed on foreign ships in the territorial waters of India; and
(3) Pirates.
1. Jugal Kishore More, (1969) 3 S.C.R. 320.
2. Narayan Mohale, (1935) 37 Born. L.R. 885.
3. Central Bank of India Ltd. v. Ram Narain, (1955) 1 S.C.R. 697.
4. Maganlal, (1882) 6 I.L.R. Bombay 622.
5. Lopez and Saltier, (1858) 27 L.J. (M.C.) 48.
6. Emp. v. Vmayak D. Savarkar, (1910) 13 Bom. L.R. 296.
7. Rambharathi, 1923 Bom. L.R. 772; Sheikh Haider v. Syed Issa; 1939 Nag. 241.
8. Moulvie Ahmudoollah, (1865) 2 W.R. (Cr.) 60.
INTRODUCTION 61
Offences on Indian ships.—Admiralty jurisdiction extends over Indian ships, not only on
the high seas but also in rivers below the bridges, where the tide ebbs and flows and where great
ships go.1 It is also extends over Indian ships although they may be at a place where the foreign
municipal authorities may also exercise concurrent jurisdiction, if invoked. All persons on board the
ship, whether citizens of India or foreigners are entitled to the protection of Indian law. 2 With regard
to the seashore, the ordinary criminal courts as well as the courts of Admiralty have alternate
jurisdiction between high and low water mark.3
Offences on Foreign ships.—The admiralty jurisdiction also extends when an offence is
committed on a foreign ship but within the territorial waters of India in this case also the Indian
courts as well as the courts of a foreign country whose flag the ship is flying have concurrent
jurisdiction.
Formerly offences committed on high seas were not triable by ordinary criminal courts, but
later on the jurisdiction in respect of such offences was conferred upon the criminal courts by the
Admiralty Offences Act, 1849 and the Merchant Shipping Act, 1894. After the passing of the Indian
Merchant Shipping Act, 1958 the admiralty jurisdiction of ordinary courts have come to an end.
B, a foreigner, without any justification inflicts a blow on C another foreigner in a foreign
vessel on the high seas. Both of them land in Bombay. C dies in Bombay on account of the injury so
caused to him by B. The Courts in India have no jurisdiction to try B because neither the offender
was an Indian citizen, nor the offence was committed on foreign ship within the territorial waters of
India. Instead of the offence being committed on the high seas in a foreign vessel if it would have
been committed in a foreign vessel within the Indian territorial waters then of course the Indian
courts could try the offender.
Piracy.—Piracy means sailing on the seas for private ends without authorisation from the
Government of State with the object of committing robbery or depredations upon property or acts of
violence against persons. Therefore pirates are persons who attack by sea without any authority
from any State.
Piracy is of two kinds : (i) piracy jure gentium; and (ii) piracy by statute of the country.
Piracy Jure gentium.—It is an offence against all nations. Therefore, every State has power
to punish it. According to Stephen a person is guilty of piracy who being peaceably upon any ship,
seizes or attempts to seize her by violence or by putting those in possession of such ship in fear or
takes and carries away or attempts to take and carry away any of the goods thereon by violence or
those in possession of such ship or by putting them in fear. 4 Both actual robbery and attempt to
commit robbery amounts to piracy jure gentium.5 By engaging in piracy, a person becomes. hostes
humani genesis and forfeits all claims to protection from his country and from any country. A pirate
cannot claim immunity from the tribunal of his captor. Piracy is committed even where the subjects
of the same State commit robbery upon each other on the high seas. If the subjects of different
States commit robbery upon each other on the high seas it would be piracy if their respective States
are in amity and good relations; it would not be piracy if the States are at enmity for enemies can
never commit piracy on each other, their depredations being deemed mere acts of hostility. 1
Piracy by Statute of the Country.—There are certain acts which are not treated as acts of
1. Anderson, (1868) L.R. 1 C.C.R. 161.
2. Anderson Ibid.; Can; (1882) 10 Q.B.D. 76 at 86.
3. 3 Coke 113.
4. Stephen, Digest of Criminal Law, (19th Ed), p. 101.
5. 1934 A.C. 586.
piracy, under international law, but treated as piracy under the laws of a country. Such acts, which
are made piracy by the laws of a country, are punishable by the courts of that country.
Aircraft.—Any offence committed on any aircraft registered in India, wherever it may be,
may be tried in India.
Liability of Foreigners.—Offences committed by foreigners outside India do not constitute
an offence under the Code and therefore, no foreigner can be held criminally responsible by the
Indian courts for acts committed by him beyond the territorial limits of India. When the offender at
the time of commission of the offence is within that territory over which the authority of Indian law
extends, he can be made amenable to the jurisdiction of the Indian courts. The question is not
"where the act was committed" but "where the offender was when the offence was committed." If
the offender was not within the territory of India when the offence was committed the act done by
him is not an offence and the doer will not be liable to be punished as an offender and will also be
not subject to the jurisdiction of criminal courts. 2 However, if a foreigner initiates an offence in a
foreign country which is completed within the Indian territory, he can be tried by the Indian Court
within whose jurisdiction the offence was completed provided that he is found within Indian
territory.3 A, a foreigner, resident in a foreign country instigates the commission of an offence
which, in consequence is committed in Indian territory. A will not be amenable to the jurisdiction of
an Indian court if the instigation has not taken place in India.4
62
INDIAN PENAL CODE
5. Certain Laws not to be affected by this Act.—Nothing in this Act shall affect the provisions of any
Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the
Government of India of the provisions of any special or local law.
COMMENT
This section excludes the jurisdiction of the Code from dealing with mutiny and desertion of
officers, soldiers, sailors or airmen in the service of the Government of India, provisions for which
is made by special or local law.
Special or local law.—Though the provisions of the Penal Code were intended to be of
general application, they are not exhaustive, and offences defined by special or local law have been
excluded from the operation of the Code and are made punishable as under those Acts. An act may
be punishable both under special or local law and the Penal Code. If special law or local law was
intended to be complete in itself, the Penal Code shall have no application but if the intention of the
local or special law is not to exclude the Penal Code, it will apply. No person can be punished under
both the Penal Code and the special law for the same offence, 5 and ordinarily a person should be
punished under the Special Act.6
1. 4 Coke, 154.
2. Musst. Kishen Kour, (1878) PR. No. 20 of 1878; Jameson, (1896) 2 Q.B. 425.
3. Chhotalal, ( m i ) 14 Bom. L.R. 147.
4. Pirtai, (1873) 10 B.H.C. (Cr. C.) 356; Raj Bahadur, A.I.R. 1918 Lah. 49.
5. Hussun Ali, (1873) 5 N.W.P. 49.
6. Kuloda Prasad Majumdar, (1906) 11 C.W.N. 100.
INTRODUCTION 63
The application of the Penal Code is excluded in the following cases :

(i) Martial law, and
(ii) Act of State.
Martial Law.—When martial law is in force the municipal law remains suspended and thus
the operation of the Penal Code is also suspended. However, prosecutions may take place for acts or
omission punishable as offences after the martial law is lifted. Generally Indemnity Acts are passed
to protect persons for acts done during the martial law.
Act of State.—Act of State is an act which is injurious to the person or property of some
person who is not a subject of India at the time of its commission. The act is done by some
representative of the Government of India and it is either previously sanctioned or is subsequently
ratified by the Government of India. Act of State can only be against a foreigner and not an Indian
national because there can be no act of State between the Government and its subjects. The
municipal courts have no jurisdiction to deal with an act of State. Remedy for an act of State may
be obtained only through diplomatic channels.
GENERAL
CHAPTER I I
EXPLANATIONS
This chapter is a detailed interpretation clause and is not only useful but important in
interpretation of the provisions of the Code. It is a key to unfold the meaning of the Code. It defines
the leading terms used in the Code. The terms defined in this chapter are, throughout the Code, to
be assigned the meaning as is given herein.
6. Definitions in the Code to be understood subject to exceptions.— Throughout this Code
every definition of an offence, every penal provisions and every illustration of every such
definition or penal provision, shall be understood subject to the exceptions contained in the
chapter entitled "General Exceptions", though those exceptions are not repeated in such
definition, penal provision or illustration.
Illustrations '■
(a). The sections, in this Code, which contain definitions of offences, do not express that
a child under seven years of age cannot commit such offences; but the definitions are to be
understood subject to the general exception which provides that noting shall be an offence
which is done by a child under seven years of age. "
(b) A, a police officer, without warrant, apprehends Z who has committed murder. Here A is not
guilty of the offence of wrongful confinement for he was bound by law to apprehend Z, and therefore the
case falls within the genera! exception which proyides- (hat "nothing is an offence which is done by a
person who is bound, by law to do it."
COMMENT
Section 6 relates to the effect of the provisions of Chapter IV of the Code. Chapter IV deals
with general exceptions, which are to be read as forming part of various offences created under the
Code1. They are the defences which are to be read as forming part of various offences created under
the Code. They are the defences which an accused can put up in any case. They have been put
together with a view to avoid repetition in each section defining an offence and also to have brevity
in expression.
7. Sense of expression once explained.—Every expression which is explained in any part
of this Code, is used in every part of this Code in conformity with the explanation.
COMMENT
It is a common rule of interpretation that any word or expression used in
a particular statute must be given the same meaning throughout unless the context
necessarily warrants a different meaning which is explicit in the provisions of
the Statute where that word or expression occurs. Therefore the wor.ds or
expressions defined in this chapter have to be given that meaning throughout the
Code. . • ,
. 8. Gender.—The pronoun "he" and its derivatives are used of any person, whether male
or female. .i
9. Number.—Unless the contrary appears from the context, words importing a singular
number include the plural number, and words importing the plural number include the singular
number.
10. 'Man', 'Woman'.—The word "man" denotes a male human being of any age; the
word "woman" denotes a female human being of any age.
COMMENT
A male or a female of whatever age is a man or a woman respectively
( 82 ) under this section. A girl of b years was held to

be a woman for the purposes of section 354.'
11. "Person".—The word "person" includes any Company or Association, or body of
persons, whether incorporated or not.
COMMENT
The word 'person' includes not only a natural' person but artificial or juridical persons as
well. The definition of 'person' includes a company or association or other body of persons. In all
those cases where it is physically impossible for a limijted company to commit offences or where
metis., rea is essential to constitute an offence or where the only punishment is imprisonment, a
limited company (cannot be prosecuted.2^ Since the ,defmition includes unincorporated bodies also
a firm may be tried and punished. 3 An idol is a juristic person capable of owning property and is,
therefore, a 'person'.4 The definition of 'person' includes the Government as representing the whole
—community,5 therefore, prosecution for an offence against Government is possible in certain
circumstances provided that the applicability of law alleged to be infringed by the Government is
not excluded impliedly.6 An unborn child within the womb of mother is a person if its body is
developed sufficiently to make it possible to call it a child.7
12. "Public".-—The word "public" includes any class of the public, or any community.
COMMENT
This section is only inclusive and does not define the word public'. A class or community
residing in a particular locality may come within the term 'public'.8
1
13. [Queen]—Rep. by the A.O. 1950. _
14. Servant of Government.—The words "servant of Government" denote any officer or
servant continued, appointed or employe'd in India by or under the authority of Government.
15. Definition of "British India".—Rep. by the A.O. 1937.
\(>. -Definition of "Government of India".—Rep. by theÂ.O. 1937.
17. Government.—The word "Government" denotes the Central Government or the Government
of a State.
18. "India".—"India" means the territory of India excluding the State of Jammu and Kashmir.
, . - »
19. "Judge".—The word "Judge" denotes not only every person who is officially designated as a
judge, but also every person,—
who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment,
or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by
some other authority, would be definitive, or
who is one of a body of persons, which body of persons, is empowered to give such a judgment.
Illustrations
(a) A Collector exercising jurisdiction in a suit under Act X of 1859 is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge ort, which he has power
to sentence to fine or imprisonment, with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under Regulation VII, 1816 of the
1. Emp. v. Tatia Mahadev, 14 Bom. L.R. 961.
2. Anath Bandhu Samanta v. Corporation of Calcutta, (1954) I Cal. f03. Syndicate Transport
Co., (1963) 66 Bom. L.R. 197.
3. A.I.R. 1929 Rang. 322.
4. Vadivelu, A.I.R. 1944 Mad. 77. -'
5. I.L.R. (1877) 1 Bom. 610.
6. A.I.R. 1967 S.C. 997. -
7. Jabbar v. State, AIR. 1966 All. 590. , .1
8. Harrmndan Lai v. Rampalak Mahto, (1939) 18; Pat. 76.
Madras Code to try and determine suits, is a Judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to
commit for trial to another Court, is not a Judge.
COMMENT
This section defines the word "Judge". Judge means any person who is officially designated
as a Judge. It includes every person who is empowered by law, in any legal proceeding, civilor
criminal, to give definitive judgment. 'Definitive judgment' is a judgment which so far as the court
giving it is concerned, is final. It also includes every person who is empowered by law to give a
judgment which, if not appealed against would be definitive or a judgment which, if confirmed by
some other authority would be definitive. Judge also means a member of a body of persons which
body of persons is empowered by law to give such a judgment.
Any person who does not have the seisin of the case, in which he can give a definitive
judgment, is not a Judge.1 The right to pronounce a definitive judgment is considered the sine quo
non of a court.2 A member of a Panchayati Adalat in Uttar Pradesh is a Judge within the meaning of
this section. Committing Magistrate is not a Judge, as is clear from illustration (d) because he does
not have power to pronounce a definitive judgment, but can only commit the case for trial to
another court. In certain circumstances, a Magistrate can be deemed a Judge but the section does
not say that a Judge would become a Magistrate.3
20." "Court of Justice".—The words "Court of Justice" denote a Judge who is empowered by law
'to act judicially alone, or a body of Judges who is empowered by law to act judicially as a body, when
such Judge or body of Judges is acting judicially.
Illustration
A Panchayat acting under Regulation VII, 1816, of the Madras Code, having power to try and
determine suits, is a Court of Justice.
COMMENT
The following are the constituents of a Court of Justice according to this section :
(i) There must be a 'Judge' or 'a body of Judges';
(ii) The Judge or body of judges must be empowered by law to act
judicially;
(iii) The 'Judge' or 'body of Judges' must be acting judicially at the
material time.
The Court of Justice does not mean the place or building where judicial act is done but the
Judge or body of Judges who conduct judicial proceedings. When the Judges transact only
administrative business they are not a Court of Justice.
21. "Public Servant".—The words "public servant" denote a person falling under any of the description
hereinafter following, namely :— First.—Rep by the A.O. 1937.
Second.—Every Commissioned Officer in the Military, Naval or Air Force of India;
Third.—Every Judge including any person empowered by law to discharge, whether by himself or
as a member of any body of persons, any adjudicatory functions;
Fourth.—Every officer of a Court of Justice including a liquidator, receiver or commissioner
whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make,
authenticate, or keep any document, or to take charge or dispose of any property, or to execute any
judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every
1. Ram Chandra Modak, (1925) 5Pat. 110 p. 115.
2. Brajnandan Sinha v. Jyoti Narayan, A.I.R. 1956 S.C. 66.
3. Krt'snaswami Naidu v. State of Tamil Nadu, 1977 Cr. L.J. 1013.
person specially authorised by a Court of Justice to perform any of such duties;
Fifth.—Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public
servant;
Sixth.—Every arbitrator or other person to whom any cause or matter has been referred for
decision or report by any Court of Justice, or by any other competent public authority;
Seventh.—Every person who holds any office by virtue of which he is empowered to place or keep
any person in confinement;
Eighth.—Every officer of the Government whose duty it is, as such officer, to prevent offences to
give information of offences, to bring offenders to justice, or to protect the public health, safety or
conveyance.
Ninth.—Every officer, whose duty it is, as such officer, to take, receive, keep or expend any
property on behalf of the Government, or to make any survey, assessment or contract on behalf of the
Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting
the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the
pecuniary interests of the Government, or to prevent the infraction of any law or the protection of the
pecuniary interests of the Government.
Tenth.—Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of
any village, town or district, or to make, authenticate or keep any document for the ascertaining of the
rights of the people of any village, town or district.
Eleventh.—Every person who holds any office by virtue of which he is empowered to prepare,
publish, maintain or revise an electoral roll or to conduct an election or part of an election.
Twelfth.—Every person—
(a) in the service or pay of the Government or remunerated by fees or commission for
the performance of any public duty by the Government;
(b) in the service or pay of the local authority, or corporation established by or under a
Central, Provincial or State Act or a Government Company as defined in Section 617 of the
Companies Act, 1956.
Illustration
A Municipal Commissioner is a public servant.
Explanation 1.—Persons falling under any of the above descriptions are public servants, whether
appointed by the Government or not.
Explanation 2.—Wherever the words "public servant" occur they shall be understood of every
person who is in actual possession of the situation of a public servant, whatever legal defect there may be
in his right to hold that situation.
Explanation 3.—The word "election" denotes an election for the purpose of selecting members of
any legislative, municipal or other public authority of whatever character, the method of selection to
which is by. or under, any law presrrihpH a« hy «>l«wHnn
COMMENT
This section does not define 'public servant', but only enumerates the various functionaries
who are designated as public servants. The general characteristic of a public servant is that he
performs certain public functions. All government servants are not public servants. The test to
determine whether a person is a public servant is : (1) whether he is in the service or pay of the
Government, and (2) whether he is entrusted with the performance of any public duty. 1 There are
some offences which by their nature are common to both men of public as weH as public servants.
They can be committed by public servants as well as by men of public and they are, therefore, left
to the general provisions of the Code. But there are some offences which can only be committed by
public servants and not by public generally. The public servants are dealt with more severely than
other persons for they enjoy many privileges peculiar to themselves.
An accused person must be a public servant on the date of commission of the offence. Retirement,
1. G.A. Monterio, A.I.R. 1957 S.C. 13.
resignation, dismissal or removal of a public servant cannot wipe out the offence committed while
in service.'
Chairman of the Central Board of film Censors, 2 branch manager of a nationalised general
insurance company,3 a member of the auxiliary Airforce, 4 khalasis in the Railway Carriage section
who are actually allowed to deal with the preparation and issuance of Railway passes in the office
of the Works Manager5 and the Chief Minister6 are public servant within this section.
Commissioner.—The word "Commissioner" under this section does not only mean a person
designated as "Commissioner"7 but incjudes a Municipal Councillor or Member as well.
In Ramesh Balkrishna Kulkarni v. State of Maharashtra? it was held that a Municipal
Councillor who is not assisting any public servant is not a "public servant" within the meaning of S.
21 of the I R Code. While determining this question the Court held that there are two requirements
for a public servant. One, a "public servant" is an authority who must be appointed by the
Government or a semi governmental body and should be in the pay or salary of the same. Two, a
"public servant" is to discharge his duties in accordance with the rules and regulations made by the
Government. Since a Municipal Councillor lacks both these elements therefore, he is not a "public
servant."
Established.—For the purposes of sub-clause (b) of clause 12 the word 'establish' means 'to
create'. The word 'established' does not mean 'registered' or 'incorporated'.9
Explanation 2.—This explanation provides that a person who in fact discharges the duties of
the office which brings him within the definition of a public servant, is a public servant whatever
legal defect there may be in his right to hold the office. 10 But a person who is in actual possession of
the situation of a public servant is not a public servant unless he has a right to hold that situation,
although in determining that right the legal defect, if any, has to be ignored." A public servant under
suspension does not cease to be a public servant within the meaning of section 21 of the Code.12
Cases.—Any person who was not a public servant appointed as a chairman of the District Advisory Committee may not be a public servant because the office of
the chairman of committee is not such that would make him a public servant. But the position would be different when he, under the instructions issued by the Government
in exercise of its executive power which is co-extensive with the legislative power_of the State, is appointed the chairman of the committee. Therefore, where a Minister is
aslced by a Government notification to preside over the meeting of the District Advisory Committee constituted under such notification, he was discharging his duty as a
public servant. Here minister is a public servant.13 Similarly Chief Minister is a person performing public duties and is a public servant.14
A teacher in a Railway school who was being paid by the Railway department of the Indian
Government is a public servant as he is entrusted with a public duty to teach boys. 1 But a teacher
who acts as an examiner for a university is not a public servant under clause (9) of this section and
as such he cannot be held guilty under section 161 of the Indian Penal Code.2
In S.S. Dhanoa v. Delhi Municipality? it was held that a member of the Indian
1. State ofW.B. v. Manrnal Bhutoria, 1977 S.C.C. (Cri.) 520.
2. Asha Parekh v. State of Bihar, 1977 Cri. L.J. 21.
3. M.S. Thakur v. State of U.P., 1980 Cri. L.J. (N.O.C.) 20.
4. State v. Kailash Chand, A.I.R. 1980 S.C. 522.
5. Bajrang Lai v. State of Rajasthan, A.I.R. 1976 S.C. 1008.
6. M. Karunanidhi v. Union of India, 1977 Cri. L.J. 1876.
7. Banshilal Luhadea, A.I.R. 1962 Raj. 250.
8. 1986 Cri. L.J. 14 (S.C).
9. State of U.P. v. Vishwanath, 1980 Cri. L,J: 494.
10. Krishna Das, (1871) 7 Beng. L.R. 446 at 448.
11. Bira Kishore, A.I.R. 1964 Orissa 202.
12. Dhanpal Singh, A.I.R. 1970 P. & H. 514.
13. Dattatraya v. State of Maharashtra, 1075 Cri. L.J. 1490 (S.C).
14. M. Karunanidhi v. Union of India, 1977 Cri. L.J. 1876 (SC.).
Administrative Service working on deputation with a co-operative society (Super Bazar) registered
under the Co-operative Societies Act is not public servant for the puiposes of section 197 of the Cr.
P. Code because during this period he was not in the service or pay of the Government, nor was he
in the service of a local authority, a corporation established by or under an Act or a Government
Company. It was also held that the word 'corporation' occurring in clause 12 (b) of this section does
not include a Co-operative Society.
In R.S. Nayak v. A.R. Antulay? it was held that looking to the history of section 21, it is clear
that till 1964 M.L.A. could not be comprehended in the expression 'public servant'. The Santhanam
Committee did not recommend its inclusion in the definition of a public servant. The amendment of
the year 1964 also did not bring any change in the position. So M.L.A. is not a public servant.
It was held in Ram Avtar v. State of Bihar? that any surveyor while performing his legitimate
function under any of the Revenue or Civil Court is a public servant. In this case the appellant was
entrusted with survey work for the purpose of consolidation process, therefore, he is a public
servant and for his misconduct a case under section 5(2) of the Prevention of Corruption Act would
be maintainable.
It was held in A.R. Puri v. State? that an Insurance surveyor holding a licence issued by the
Controller of Insurance appointed by an insurance company to survey and assess the loss of the
insurance claimant is not on the staff of the'insurance company. He does not perform any duty
assigned by the Central or State Government. He receives his remuneration in the form of his
professional charges on contract basis from the insurance company depending on the nature of
claim and the work involved. On these facts it was held that his position was that of a contractor
and a mere contractor will not be a public servant although his contract may be with the
Government and he is paid on a commission basis. The Insurance Surveyor is not an assessor
within sectic i 21(5) as the word 'assessor' in section 21(5) goes along with the juror or is connected
with the administration of justice. The Surveyor also does not come within section 21(12) (a) as he
is not in the pay or service of the Government or remunerated by fees or commission for the
performance of a public duty by the Government. Nor does he come within section 21(12) (b) as he
is not in the service of or on pay roll of a local authority or corporation established by law. Since he
is not a public servant he cannot be proceeded against for offences under section 161 Penal Code
and under section 5(1) (d) read with section 5(2) of the Prevention of Corruption Act.
Section 46A of the Banking Regulation Act, 1949 lays down that a chairman, director,
manager and other employees of a banking company "shall be deemed to be a public servant for the
purposes of Chap. IX of the Penal Code." Section 14 of the Acquisition and Transfer of
Undertakings Act, 1970 prescribes that every custodian of a corresponding new bank, viz., a
nationalised bank, shall be deemed to be a public servant for the purposes of Chap. IX of the Penal
1. State of Ajmer v. Shivjilal, AIR 1959 SC 847.
2. State of Gujarat v. M.P. Dwivedi, AIR 1972 SC 392; Section 161 of Indian Penal Code has
now been omitted by Section 31 of the Prevention of Corruption Act, 1988.
3. 1981 Cri. L.J. 871 (S.C).
4. 1984 Cri. L.J. 613 (S.C).
5. 2002 Cri. L.J. 3899 (S.C).
6. 1988 Cri. L.J. 311 (Delhi).
Code. So also Act No. 40 of 1980 in section 14 repeats that they shall be deemed to be public
servant only for the above purposes. It was held by the Bombay High Court in N. Vaghul v. State of
Maharashtra,1 that since the banking statutes show a limitation, it will not be permissible to
overcome these limits by recourse to the general words used in clause 12 (b) of section 21 of I. P.
Code. If the legislature wanted certain specific bank employees to be considered "Public servants"
for a limited purpose, the contrary cannot be held by taking recourse to the wide sweep of section
21 of the Indian Penal Code. Thus bank employees are not public servants under section 21, I.P.C.
In State of Punjab v. Keshan Chand,2 it was held that the President and the secretary of a co-
operative society are not "Public servants" within the meaning of clause 12(b) ôf section 21, IP.
Code and to them the provisions of section 409, I.P.C. are not attracted because the co-operative
society is not a corporation established by a State Act in whose service or pay they supposedly are,
or are assumed to be.
It was held in N.K. Sharma v. Abhimanyu? that a Government officer working on deputation
as Managing Director of co-operative society is not a public servant within the meaning of Section
21 of Indian Penal Code.
In State of Maharashtra v. L.W. Kanchand? it was held that an employee of a nationalised
bank is a public servant.
It was held in National Small Industries Corporation Ltd. v. State (NCT of Delhi) and
others? that a Government company is not a public servant under Section 21 of the Indian Penal
Code but every employee of such company is a public servant.
22. "Movable property".—The words "movable property" are intended to include
corporeal property of every description, except land and things attached to the earth, or
permanently fastened to anything which is attached to the earth.
COMMENT
Movable property under this section is restricted to corporeal property of all description
except land and things attached to the earth. It excludes all choses in action. Corporeal property are
only such rights which are not perceivable. The definition as given in this section is not exhaustive. 6
Salt produced on a swamp are movable property. 7 This section does not include intangible property
like an actionable claim and debt etc.
Land and things attached to the earth.—Land and things attached to the earth 8 or permanently
fastened to anything which is attached to the earth are excluded from movable property. This
section does not exclude "earth and things attached to the earth", but "land and things attached to
the earth". There is, great difference between "land" and "earth" and also between "the earth" and
"earth". Things that are attached to the earth are immovable property. They become movable the
moment they are severed. It is possible to severe 'earth' from the "the earth" and attach it again
thereto. Thus stones and minerals which are beneath the earth, when are severed from the earth
become movable property.9 So also sand or clay or any other component part of the earth when
severed is movable property.10
23. "Wrongful gain".—"Wrongful gain" is gain by unlawful means of property to which
the person gaining is not legally entitled.
"Wrongful loss".—"Wrongful loss" is the loss by unlawful means of property to which the
person losing it is legally entitled.
1. 1987 Cri. L.J. 385 (Bom.).
2. 1987 Cri. L.J. 549 (P. & H.).
3. 2005 Cri. L.J. 4529 (S.C).
4. 1989 Cri. L.J. 697 (Bom.).
5. (2009) II Cri. L.J. 1299 (S.C).
6. R.fC. Dalmia, A.I.R. 1962 S.C 1921.
7. Tamma Ghantaya, (1881) 4 Dad. 228.
8. Ramaswami Aiyer v. Vaithiling Mudali, (1882) Weir 28.
9. -Sh'vram, (1891) 15 Bom. 702.
10. Suri Venkatappayya Sastri v. Madula Venkanna, (1904) 27 Mad. 531 at 535.
Gaining wrongfully : Losing wrongfully.—A person is said to pain wrongfully when such person
retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully
when such person is wrongfully kept out of any property, as well as when such person is wrongfully
deprived of property.
COMMENT
The word 'wrongful' is not defined, though 'illegal' is defined in section 43 of the Code.
'Wrongful' means prejudicially affecting a party in some legal right. The gain or loss in order to be
wrongful within the meaning of this section must be caused by unlawful means. The means are said
to be unlawful when they render liable to an action or prosecutions.'
Ingredients.—"Wrongful Gain" implies :
(i) gain of some property;
(ii) the property to which a person was not legally entitled; and
(iii) gain must be by unlawful means.
Wrongful gain means acquiring wrongfully as well as retaining wrongfully. It means not
only taking anothers property wrongfully but includes retaining of the property wrongfully where
the taking of it was not wrongful.
Similarly "Wrongful Loss" means :
(i) loss of some property;
(ii) the property to which the person losing was legally entitled; and
(iii) loss must have been caused by unlawful means.
Wrongful loss means illegally depriving a person of his property and includes illegally
keeping a person out of his property.2 For either wrongful gain or loss the owner must lose his
property or must be wrongfully kept out of it.
Wrongfully kept out of property.—Keeping wrongfully out of any property means keeping
the owner out of possession of his property with the object of depriving him of the benefit arising
from the possession, even temporarily. 3 Where the owner is kept out of possession temporarily not
with an intention of depriving him of the benefit to the property but with the object of causing him
trouble or mental anxiety and with the ultimate intention of restoring the property to him, without
expecting any recompense, it may not amount to causing wrongful loss. 'A' removed the box of his
master and left it concealed in the cow-shed to give a lesson to his master, it was held that no theft
of the box was committed as there was no wrongful loss. 4 Fees payable to a college for attending
lectures are 'property' within the meaning of this section.5
Wrongful Gain.—in Mahalingayya Pujari? a postman signed the postal receipts of a V.P.
Parcel himself with a view to make it appear that they were received by the addressee and retained
the parcel himself, it was held that retention of the parcel was wrongful gain because postman was
bound to return the undelivered parcels to the postmaster.
Wrongful loss.—In Narashimhulu v. Nagur Sahib,1 the accused demolished a private
structure because it was an encroachment on a public street. It was held that, as the accused had no
justification in law to demolish the structure, their acts amounted to causing wrongful loss and they
were guilty of mischief.
______In Preonath Banerjee v. State? the accused had forcibly and illegally seized
1. AM Ayyar, A.I.R. 1921 Mad. 322.
2. Krishna Kumar, (1960) 1 S.C.R. 452.
3. Nabi Baksh, (1897) 25 Cal. 416; See also Badhan Singh, 1960 Cri. L.J. 1485.
4. Ibid.
5. Soshi Bhusan, (1893) 15 All. 210 at 216.
6. 1959 Cri. L.J. 881.
7. (1933) 57 Mad. 351.
8. (1869) 5 W.R. (Cr.) 68.
bullocks of a widow in satisfaction of a debt due to the accused by her deceased husband. Seizure
of bullocks was held to be a "wrongful loss". But illegal seizure of animals and sending them to a
cattle pond, even though done with malicious intention of subjecting the owners to additional
expense, inconvenience and annoyance does not amount to wrongful loss. 1 In Paltu Goswami v.
Ram Kumar} the accused removed jute kept in pond of the complainant for wetting and requested
the complainant to take it away as the accused bona fide claimed the ownership of the pond, it was
held that no wrongful loss was caused to the complainant.
,24. "Dishonestly".—-Whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person, is said to do that thing dishonestly".
COMMENT
The term "dishonestly" is not used in this section in its popular significance, as it need not
always involve an element of fraud or deceit. 3 In order that an act may be said to have been done
dishonestly under the Code wrongful gain to one and wrongful loss to another is necessary;
'wrongful gain' and 'wrongful loss' are defined in section 23 of the Cede—Therefore, this section
has to be understood in conjunction with section 23. It is not necessary for a thing to be done
dishonestly that there should be an intention to cause both 'wrongful gain' and 'wrongful loss', 4
intention to cause wrongful loss would be sufficient. A person can be said to have dishonest
intention if in taking the property it is his intention to cause gain by unlawful means of the property
to which the person so gaining is not legally entitled or to cause loss by wrongful means of property
which the person so losing is entitled. 5 An actual intention to convert an illegal or doubtful claim
into an apparently legal one makes an action dishonest. 6 In Krishna Rao,1 'A', entitled to possession
of his house from B. sued B for arrears of rent basing his claim on a rent note which was found to
be not genuine. A was not entitled to rent at a rate fixed by the rent note. A had an intention to
cause wrongful gain and therefore, the c|aim was held to have been made dishonestly.
25. "Fraudulently".—A person is said to do a thing fraudulently if he does that thing with intent to
defraud but not otherwise.
COMMENT
In order to determine whether an act was done dishonestly under section 24 or fraudulently
under section 25, intention with which an act is done is very important An act is done fraudulently
if it is done with intention to defraud.
Intent to defraud.—The words 'fraud' and 'defraud' are not defined in the Code. The meaning
of 'defraud' has to be determined with reference to the context in which the word fraudulently is
found," because it may or may not imply deprivation of property. Fraudulently as part of the
definition of a crime implies the following elements :
(i) deceit or an intention to deceive or in some cases mere secrecy;
and _______
1. Dayal, A.I.R. 1943 Oudh 280.
2. A.I.R. 'i960 Tripura 40.
3. Boddepalli Lakshmmarayana v. Subbari Sanyasi Appa Rao, (1959) Cr. L.J. 1141.
4. Ahmed, A.I.R. 1967 Raj. 190.
5. Madhavan Pillai, 1966 Cr. LJ. 728 at 731.
6. Kalyanmal, A.I.R. 1937 Nag. 45.
7. 1953 Cr. L.J. 979.
8. Abbas All, (1896) 25 Cal. 512.
(ii) either actual injury or possible injury or an intent to expose some person either to
actual injury or to a risk of possible injury by means of that deceit or, secrecy.
The injurious deception is usually intended only as a means to an end. In determining
whether the deception was fraudulent or not the question is : Did the author of the deceit derive any
advantage from.it which he could not have had if the truth had been known : if so, it is hardly
possible that advantage should not have had an equivalent in loss or risk of loss, to someone else;
and if so there was fraud.1
Fraudulently does not include the element of actual loss to any member of the community. It
would be enough that the accused had aimed at an advantage by the deception, such advantage
being always regarded as having ah equivalent in loss or risk of loss to some other member or
members of the community.2
The word 'defraud' implies two elements : (i) deceit, and (ii) injury to the person deceived.
Injury may not necessarily be some pecuniary loss to the person deceived. It may be even non-
economic or non-pecuniary loss. In Dr. Vimla? the Supreme Court held that even in those rare
cases where the benefit to the deceiver does not cause corresponding loss to the deceived, the
second condition is satisfied. If there is an intention to deceive and by means of deceit to obtain, an
advantage, there is fraud.4 The, intention to deceive may be from any expectation of advantage to
the party himself or from ill will towards the other. 5 A general intention to defraud, without the
intention of causing wrongful gain to one person or wrongful loss to another, is sufficient to support
a conviction.6 In order to prove an intention to defraud, it is not necessary that some person should
have been defrauded or there should be some who might possibly have been defrauded. A man may
have an intention to defraud, and yet there may not be any person who was or could be defrauded
by his act. B has no account in Bank but A supposes that B has one. A on that supposition forges
B's" name. It was held that 'A' had an intention to defraud, although no person could be defrauded
because B had no account in the Bank. 7 In another case B had his account in Bank. B's friend A
forges B's name to a cheque either to try his credit, or to imitate his hand writing. In this case there
would be no intention on the part of 'A' to defraud although there was a party who might be
defrauded. In Surendra Nath Gh&sh? the accused after the execution and registration of a
document, which was not required by law to be attested, added'his name to the document as an
attesting witness, it was held that he^ was not guilty of forgery because his act was neither
fraudulent nor dishonest.
\Distinction between fraudulently and dishonestly
1. Dishonestly does not require deception or concealment as its ingredient; while deception
or concealment is an ingredient of fraudulently.
2. Dishonestly requires an intention to cause wrongful loss or wrongful gain of property.
Fraudulently does not require such an intention. There can "be fraud even though there is no
1. Ramchandra Gujar, (1937) 39 Bom. L.R. 1184 per Sir James Stephen'/
2. Dharmendra Nath Shastri, A.I.R. 1949 All. 619. V
3. A.I.R. 1963 S.C. 1572.
4. Muhammad Saeed Khan, (1898) 21 All. 113.
5. Vithal Narayan, (1886) 13 Bom. 515.
6. Dhunum Kaz.ee, (1882) 9 Cal. 53 at 60.
7. Per Mauie, J. in Nash's case, (1852) 2 Den. C.C. 492 at 499.
8. (1910) 14 C.W.N. 1076.
intention to cause pecuniary loss or damage to the person deceived.

26. "Reason to believe".—A person is said to have "reason to believe" a thing, if he
has sufficient cause to believe that thing but not otherwise.
COMMENT
A person is said to have reason to believe when he has "sufficient cause" to believe. To
believe a thing is to assent to a proposition or to accept a fact as real without immediate personal
knowledge. To know a thing means to have mental cognition of it. Thus belief is weaker than
knowledge but a well founded belief that certain consequences will follow certain act is ordinarily
as good as knowledge. Suppose 'B' a poor man brings to you for sale a valuable gold ornament. B
comes at late hours in the night in suspicious circumstances and offers the ornament for much less
of the real price. Here you may not know that the ornaments are stolen but you have sufficient
cause to believe that they might be stolen because B offers them at a much low price and at odd
hours in the night.
27. Property in possession of wife, clerk or servant.—When property is in the possession
of a person's wife, clerk or servant, on account of that person, it is in that person's possession
within the meaning of this Code.
Explanation.—K person employed temporarily or on a particular occasion in the capacity of a
clerk or servant, is a clerk or servant within the meaning of this section.
COMMENT
According to this section any property in the possession of a person's wife, clerk or servant,
is deemed to be in that person's possession. Possession must be conscious and intelligent possession
and not merely the physical presence of the accused in proximity to the object. 1 Corporeal property
is in a person's possession when he has such power over it that he can exclude others from it, and
intends to exercise, if necessary, that power on behalf of himself or of some person for whom he is
a trustee. A man's belongings or goods are in his possession not only while they are in his house or
on his premises, but also when they are in a place where he may usually send them, or in a place
where they may be lawfully deposited by him. A permanent mistress is regarded as a wife for the
purposes of this section.
28. "Counterfeit".—A person is said to "counterfeit" who causes one thing to resemble
another thing intending by means of that resemblance to practice deception, or knowing it to
be likely that deception will thereby be practised.
Explanation 1.—It is not essential to counterfeiting that the imitation should be exact.
Explanation 2.—When a person causes one thing to resemble another thing, and the resemblance
is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved that the
person so causing the one thing to resemble the other thing intended by means of that resemblance to
practice deception or knew it to be likely that deception would thereby be practised.
COMMENT
The following are ingredients of 'counterfeit' :
(1) Causing one thing to resemble another thing sufficient to cause deception,
,
(1) Intending by means of such resemblance to practise deception, or
(2) Knowing it to be likely that deception will thereby be played. The resemblance
of one thing with another must be such as was sufficient
to cause deception. In absence of such resemblance there cannot be said to be
!. Wahib Basha, (1961) I Cr. L.J. 533.
'counterfeit', e.g., a counterfeit currency note which would not deceive even a villager. 1 The word
counterfeit does not connote an exact reproduction of the original counterfeited. But the counterfeit
must be of such a character that it would be possible to pass it off as genuine and unless that is so, it
would not be possible to practice deception which is necessary to constitute counterfeit. In
Velayudham,2 it was held that if coins are made to resemble genuine coins and the intention of the
makers is merely to use them in order to foist a false case upon their enemies, those coins do not
come within the definition of counterfeit coins.
The thing may be coin, a piece of metal or some trade mark. Its value is immaterial. The
counterfeit coin may be more valuable in money value than the coin for which it is intended to pass.
Altering used stamps, so as to resemble genuine stamps amounts to counterfeiting.3
In K. Hasim v. State of Tamil Nadu? the Supreme Court held that 'counterfeit' in section 28
does not connote an exact reproduction of the original counterfeited. The explanation 2 of Section
28 is of great significance. It lays down a rebuttable presumption where resemblance is such that a
person might be deceived thereby. In such a case the intention or the knowledge is presumed unless
contrary is proved.
29. "Document".—The word "document" denotes any matter expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be
used, as evidence of that matter.
Explanation J.—It is immaterial by what means or upon what substance the letters, figures or marks are
formed, or whether the evidence is intended, for or may be used in, a Court of Justice, or not.
Illustrations
A writing expressing the terms of a contract, which may be used as evidence of the contract, is a
document.
A cbec[ue upon a banker is a document. A po\
ver-of-aiu>rney is a document.
A map or plan which is intended to be used or which may be used as evidence, is a document.
A writing containing directions or instructions is a document.
Explanation 2.—Whatever is expressed by means of letters, figures or marks as explained by mercantile
or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of the
section, although the same may not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable to his order. The meaning of the
endorsements, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a
document and must be construed in the same manner as if the words "pay to the bolder" or words to that effect
had been written over the signature.
COMMENT
The term 'document' includes everything done by the pen, by engraving, by

printing, or otherwise, whereby, on paper, parchment, wood or other substance, a
representation is made of words or other equivalents addressed to the eye. The
definition appears to be faulty. In English law the material on which words are written
is said to be a 'document'. Under the Penal Code the matter 'written' and not the
1. 'Jwala, (J92S) 51 All 470; Ranchod Mulla, (1961) 2 Cri. L.J. 472; Gulam Rahbani, (1956)
Cri. L.J. 881.
2. A.I.R. 1938 Mad. 80.
3. Ram Lai, A.I.R. 1921 Mad. 86.
4. 2005 Cri. L.J. 143 (S.C).
'material' on which words are written is called a document, but the matter should be
intended to be used as evidence of that matter. The word 'evidence' means the proof of
the existence of the matter and not proof of the truth or otherwise of the contents of the
document. 1 A writing which is not legal evidence of the matter expressed may yet be a
document if the parties framing it believed it to be> and intended it to be, evidence of
such matter. 2 A writing, words printed, lithographed or photographed, a map or plan, an
inscription on a metal plate or stone is a document. A caricature is a document. A
hammer for making sleepers is a document. 3 Letters or marks imprinted on trees and
intended to be used as evidence that the trees were passed for removal by a Ranger of a
forest 1 and a currency note 5 are document.
A guarantee whether written or printed, of the character or quality of a chattel, is not a
document which if false, would be forgery, e.g., the false signature of an artist's name to a picture*
or enclosing spurious goods in a wrapper imitating a trade mark.7
Post-mortem report is a document.8
29-A. Electronic record.—The words "electronic record" shall have the meaning assigned to them in
clause (t) of sub-section (1) of Section 2 of the Information Technology Act, 2000.
COMMENTS
The definition of electronic record as provided in clause (t) of Section 2(1) of the
Information Technology Act, 2000 is as follows :
"Electronic record.—"Electronic record" means data record or data generated, image
or sound stored, received or sent in an electronic form or micro film or computer generated
micro fiche."
30. "Valuable security".—The words "valuable security" denote a document which is, or purports to be,
a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or
whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.
Illustration
A writes his name on the back of a bill of exchange. As the effect of this endorsement is to transfer the
right of the bill to any person who may become to the lawful holder of it, the endorsement is a "valuable
security".
COMMENT
Ingredients.—Ingredients of valuable security are as follows :—
(1) Valuable security is a document;
(2) It is a document whereby any legal, right is created, extended, transferred,
restricted, extinguished or released; or
(3) It is a document whereby any person acknowledges that he lies under legal
liability or has not a certain legal right.
Which is, or purports to be.—The use of the words "which is, or purports to be" indicates
that a document, which, upon evidence being given, may be held to be invalid, but on the face of it
1. Dhannentira Nath Shastri. A.I.R. 1949 All. 619.

2. Slice fail Ally, (1868) 10 W.R. (Cr.) 61. .-
3. A.V. Joseph, (1924) 3 Ran. 11.
4. Krisluappa Khandappa, A.I.R. 1925 Bom. 327.
5. Shyama Charon, A.I.R. 1962 Tripura 50.
6. doss's case, (1858) Dears & B. 460.
7. John Smith. (1858) 27 L.J. (M.C.) 225.
8. Iloraiah v. State, 2003 Cri. L.J. S.C. 1031 (Kant.).
creates, or purports to create, a right in immovable property, although a decree could not be passed
upon the documents, is contemplated within the purview of the section.1
The term "valuable security" applies to originar-document, and not to a copy. A copy of a
valuable security is not a valuable security. 2 Account books containing entries not signed by a party
are not "valuable security".3 The fact that a document has not been stamped or not properly
stamped, and is not, therefore, receivable in evidence, does not prevent it being a valuable security. 4
A settlement of accounts in writing though not signed by any person and containing no promise to
pay,5 a deed of divorce6 a promissory note executed by a minor through force 7 a rent note,8 and a
discharge receipt purporting to have been signed by a fictitious nominee in an insurance policy 9 are
valuable securities. A postal receipt for an insured parcel, 10 a copy of a decree passed by a court,11 a
bill receipted as by a cheque12 and the copy of a lease13 are not valuable securities.
31. "A will".—The words "a will" denote any testamentary document.
COMMENT
A will is testamentry document. It is a disposition or declaration by which the person making
it provides for the distribution'or administration of property after his death. It takes effect after the
death of the testator. It is always revocable by the testator. Section 2(b) of the Indian Succession
Act, 1925 defines "Will" as "the legal declaration of the intention of the testator with respect to his
property which he desires to be carried into effect after his death." It occurs in sections 467 and 477
of the Code.
32. Words referring to acts include illegal omissions.—In every part of this Code, except
where a contrary intention appears from the context, words which refer to acts done extend
also to illegal omissions.
COMMENT
Act.—Act includes an illegal omission also. Act means something voluntarily done by a
person. Act is determination of the will producing an effect. Any external manifestation is an act. It
includes writing and speaking also. Act is not confined under the Code only to some positive
conduct of doing something but includes such omission which is illegal.
Omission.—The word 'omission' is generally used in the sense of intentional non-doing.
Only such omissions are made punishable by the Code which cause, or are intended to cause or are
likely to cause certain evil effect. Any neglect or omission of that which a person is required by law
to do constitutes a culpable omission.14
33. "Act", "Omission".—The word "act" denotes as well a series of acts as a single
act : the word "omission" denotes as well a series of omissions as a single omission.
1. Ram Harakh Pathak, (1925) 48 All. 140.
2. Govind Prasad, A.I.R. 1962 Cal. 174.
3. Hart Prasad, (1955) 1 All. 749.
4. Ramasami, (1888) 12 Mad. 148.
5. Kapalayaya Saraya, (1864) 2 M.H.C. 247.
6. Azimooddeen, (1869) 11 W.R. (Cr.) 15.
7. Ram Narain Sahu, A.I.R. 1933 Pat, 6Q1.
8. Krishna Rao v. State of Madhya Pradesh, (1953) Cri. L.J. 979.
9. Narmada Prasad, (1956) Cri. L.J. 1246.
10. Sadho Lai, A.I.R. 1917 Pat. 699.
11. Charu Chandra Ghose, A.I.R. 1925 Cal. 503.
12. H.K. Shaw, A.I.R. 1936 Cal. 324.
13. Khusal Hiraman, (1867) 4 B.H.C. (Cr.C.) 28.
14. Latif Khan, (1895) 20 Bom. 394.
COMMENT
The word 'act' includes not only a single act but a 'series of acts' which together constitute
one transaction. Similarly the word 'omission' also denotes 'a series of omissions'. On a reading of
section 32 with section 33 of the Code it is clear that "act" comprises one or more acts or one or
more omissions. It was held in Oin Prakash,1 that the word 'act' does not mean only any particular,
specific, instantaneous act of a person but denotes a series of acts also.
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.
COMMENT
Principle of Joint Liability.—There are some provisions in the Penal Code which
determine the liability of a person committing a crime in combination with some others.2 In all such
provisions a joint liability is created either because the intention is common or the object is
common to all the persons forming a group alleged to have committed a crime. Under the Indian
Penal Code the criminal liability of a person is determined according to the manner in which he
becomes associated with commission of the crime. Normally a person may be a participant in a
crime in the following four ways :
(i) When he himself commits a crime;
(ii) When he shares in the commission of it;
(iii) When he, with a view to the commission of crime, sets some third agency to
work, that is, he makes some third party his own agent for
committing the crime;
(iv) When he helps the offender, after the commissions of the crime,
in screening him from justice.
The third and the fourth are related to the Law of Abetment. The second shall be discussed
here as it deals with the principle of joint liability. All cases of crimes committed by one person fall
in the first category and we do not feel much difficulty in fixing up the criminal liability of a person
in such cases. But where a crime consists of different acts big or small done by a group of persons,
it definitely becomes difficult for us to determine the liability of all those persons who constitute
that group. Sections 34 to 38 and section 149 of the Indian Penal Code deal with such situations of
joint criminal liability.
Section 34 has been enacted on principle of joint liability in doing of a criminal act. Section
is only rule of evidence and does not create substantive offence. Distinctive feature of Section 34 is
element of participation in action.3
Section 34 does not say "the common intention of all" nor does it say "an intention common
to all". Under Section 34 essence of liability is to be found in existence of a common intention
animating accused leading to doing of a criminal act in furtherance of such intention.4
The provision of common intention in Section 34 is intended to meet a case in which it may
be difficult to distinguish between acts of individual members of a party who act in furtherance of
common intention of all or to prove exactly what part was taken by each of them.5
The doctrine of combination in crime is, according to Bishop, "that when two or more persons unite to accomplish a criminal object, whether through the physical volition of
1. (1961) 2 Cri. L.I 848.

2 Refer to Sections 34 to 38, Sections 114, 149, 396 and 460 of the Indian Penal Code, 1860.
3. Sewa Ram v. Stale of U.P., 2008 I Cri. L.J. 802 (S.C).
4. Sewa Ram v. State of U.P., 2008 I Cri. L.J. 802 (S.C).
5. Sewa Ram v. State of U.P., 2008 I Cri. L.J. 802 (S.C).
one, or of all, proceeding severally or collectively, each individual whose will contributed to the wrong-doing is in law responsible for the whole, in the same way as though
performed by himself alone.1 Thus, every person whose evil intent contributed to a criminal act and who becomes a party to the commission of crime, howsoever
insignificant his role may be, is in law guilty of the whole crime. If a man sets in motion the physical power of another, he is liable for its result. If he contemplated the result
he would be liable even if it is produced in a manner different from what he contemplated.
Several persons.—In this section 'several persons' means two or more than / two persons,
criminal act must be done by several persons. It was held in Sachin Jana and another v. State of
West Bengal? that act done by two or more persons jointly and intentionally can be taken as if done
by each of them individually by himself. Section 34 enunciates the principle of joint liability. If two
or more persons intentionally do an act jointly, it is just the same as if each of them had done it
individually.3 This section was meant by the framers of the Code to deal with those cases where it
may be difficult to distinguish precisely the part taken by each individual; it was deemed necessary
to declare all the persons liable for the criminal act. It may be pointed out thfi: the expression "in
furtherance of the common intention of all" did not exist in the original Code, but was added by the
Amending Act of 1870. Before that year there was some difference between the English and the
Indian law on the subject; for in English law a person not a sharer in the intentions of his
companions to commit murder could not be held liable for murder. But under the Indian law a
person even though he was not a party to the evil intent of his companions could be held liable for
murder. It was observed by Sir Barnes Peacock, J., that : "When several persons are in company
together engaged in one common purpose, lawful or unlawful, and one of them, without the
knowledge and consent of the others, commits an offence the others will not be involved in the guilt
unless the act was in some manner in furtherance of the common intention."4
In another case the following observations were made by the Privy Council : "When parties
go with a common purpose to execute a common object each and every one becomes responsible
for the acts of each and every other in execution and in furtherance of their common purpose; as the
purpose is common so must be the responsibility."5
It was probably after this case that the words "in furtherance of the common intention of all"
were added in Section 34 in the year 1870. 6 Although the amendment was made with a view to
make the section clearer but these provisions themselves became the source of conflicting
interpretations. All the decisions thereafter have centered round the expression "in furtherance of
the common intention of all". However, this section was interpreted, even before 1870 in the
manner contemplated by the amendment.
Ingredients.—To attract the principle of joint liability under section 34 there should be :
(i) Some criminal act;
(ii) Criminal act done by more than one person;
___________(iii) Criminal act done by such persons in furtherance of the common
1. Bishop, J.P.; Criminal Law, Vol. 1 (3rd Ed.) Section 439.
2. 2008 II Cr. L.J. 1596 (S.C).
3. Byomkesh Bhattacharya v. L.N. Datta, (1978) Cri. L.J. 848.
4. Gorachand Gopi, 1860 B.L.R. 443.
5. Ganesh Singh v. Ram Poja, (1869) 3 B.L.R. 44 (P.C.).
6. Act No. XXVI 1870, Sec. 1.
intention of all of them;
(iv) Common intention in the sense of a pre-arranged plan between
such persons;
(v) Participation in some manner in the act constituting the offence
by the persons sought to be prosecuted;
(vi) Physical presence at the time of commission of crime of all the
persons; but physical presence of all is not necessary in some cases.
It was held in State of M.P. v. Deshraj} that section 34 of Penal Code has been enacted on
the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence
and does not create a substantive offence. The distinctive feature of the section is the element of
participation in action. The liability of one person for an offence committed by another in the
course of criminal act perpetrated by several persons arises under section 34 if such criminal act is
done in furtherance of a common intention of the persons who join in committing the crime. Direct
proof of common intention is seldom available and, therefore, such intention can only be inferred
from the circumstances appearing from the proved facts of the case and the proved circumstances.
In order to bring home the charge of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was a plan or meeting of mind of all the
accused persons to commit the offence for which they are charged with the aid of section 34, be it
pre-arranged or on the spur of moment; but it must necessarily be before the commission of the
crime. The true contents of Section 34 are that if two or more persons intentionally do an act
jointly, the position in law is just the same as if each of them has done it individually by himself.
Existence of a common intention amongst the participants in a crime is the essential element for
application of section 34. It is not necessary that the acts of several persons charged with
commission of an offence jointly must be the same or identically similar. The acts may be different
in character, but must have been actuated by one and the same common intention in order to attract
the provision. Section 34 does not say "the common intention of all", nor does it say "and intention
common to all". Under the provision of section 34 the essence of the liability is to be found in the
existence of a common intention animating the accused leading to the doing of a criminal act in
furtherance of such intention. As a result of the application of principles enunciated in Section 34
when an accused is convicted under section 300 read with section 34, in law it means that the
accused is liable for the act which caused death of the deceased in the same manner as if it was
done by him alone. The provision is intended to meet a case in which it may be difficult to
distinguish between acts of individual members of a party who act in furtherance of the common
intention of all or to prove exactly what part was taken by each of them. Section 34 is applicable
even if no injury has been caused by the particular accused himself. For applying section 34 it is not
necessary to show some overt act on the part of the accused.
It was held that in the instant case accused persons armed with various weapons jointly
attacked resulting in death of victim and causing injuries to other witnesses. Absence of evidence
connecting particular accused with particular injury cannot be made a ground for not recording
conviction under section 300 read with section 34 of I.P.C.
Criminal act.—'Criminal act' used in section 34 does not refer to

individual acts where a crime is committed by a group of persons. Where
a crime is committed by several persons in furtherance of common
intention of all of them, 1. 2004 Cri. L.J. 1415 (S.C).
each of them doing some act, similar or diverse, big or small shall be liable for that act. 'That act'
refers to the 'criminal act' used in section 34 which means the unity of criminal behaviour which
results in something for which an individual would be punishable if it were all done by himself
alone in an offence.1
It was held in Lallan v. State of Bihar,2 that the word "act" used in section 34 denotes a series
of acts as a single act. What is required under law is that the accused persons sharing the common
intention must be physically present at the scene of occurrence and be shown not to have dissuaded
themselves from the intended criminal act for which they shared common intention. Culpability
under section 34 cannot be excluded by mere distance from the scene of occurrence. Therefore, the
requirement of statute is sharing the common intention upon being present at the place of
occurrence. Mere distancing himself from the scene cannot absolve the accused—though the same,
however, depends upon the factual situation of the matter under consideration and no rule steadfast
can be laid down therefor.
Common intention.—The expression 'common intention' has been given various meanings
which are as follows :
(1) Common intention implies a pre-arranged plan, prior meeting of minds, prior
consultation in between all the persons constituting the group.3
(2) Common intention means a desire to commit a criminal act without any
contemplation of the consequence.4
(3) Common intention means the mens rea necessary to constitute the offence that
has been committed.5
(4) It also means evil intent to commit some criminal act, but not necessarily the
same offence which is committed.6
(5) According to some it cannot be given any such meaning which we can apply
everywhere, therefore its exact meaning depends upon the circumstances of each case.7
There are two difficulties in the acceptance of one or the other of the above meanings :
(1) First, is it that all participants in a criminal act should be held guilty of the same
offence, or it is possible to hold them liable for different offences. According to view 1, 3
and 4 all are to be held guilty of the same offence. "The law makes no distinction between
them or between the parts played by them in doing the criminal act. Each is guilty of the
same offence."8 But according to those who agree to view (2) it is possible to connect
different persons for different offences according to the individual mens rea of each one of
them.9
(2) Secondly, whether section 34 will be applicable to those offences which do not
require the mens rea or 'intention' to constitute them or the offences that are punishable
without any requirement of mens rea at all. For example, section 304, Part II makes culpable
homicide not amounting to murder punishable if the act is done with the knowledge that it is
likely lo cause death, but without any intention to cause death; or to cause such bodily injury
as is likely to cause death; under section 34 it is to be proved that the 'criminal act' was done
1. Batendra Kumar Ghose v. Emperor, 52 LA. 40 (P.C.).

2. 2003 Cri. L.J. 465 (S.C).
3. Mahboob Shah v. Emperor, 72 I.A. 148 (P.C.) : A.I.R. 1945 P.C 118.
4. Per Lord, J. in Ibra Akanda v. Emperor, A.I.R. 1944 Cal. 339.
5. Per Das, J. in Ibra Akanda v. Emperor, A.I.R. 1944 Cal. 339.
6. Per Wanchoo, J. in Saidu Khan v. The State, A.I.R. 1951 All. 21 (KB.).
7. Per Khundkar, J. in Ibra Akanda v. Emperor, A.I.R. 1944 Cal. 339.
8. Bashir v. The State, 1953 Cri. L.J. 1505 at p. 1511.
9. Raju V.B., Commentaries on the Indian Penal Code (2nd Ed.) Vol. I., p. 1056.
in furtherance of the 'common intention' of all the participants. The expression 'criminal act'
in section 34 according to one view means a simple and a bare act, according to others it
means a crime or an offence including the mens rea, required to constitute it. Therefore, the
problem is whether a participant in crime could be said to have a common intention, if he
had no intention but only knowledge of the consequences, or did not even contemplate them.
One view is that section 34 applies to cases falling under section 304, Part II. 1 Das, J. has
expressed just a contrary view.2 A third view is that joint liability in case of Part II of
sections 34 and 35 are both applied but not when section 34 alone is applied.
It was held in Anil Sharma v. State of Jharkhand,3 that under provisions of Section 34 the
essence of the liability is to be found in the existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such intention. As a result of the application
of principle enunciated in Section 34, when an accused is convicted under Section 302 read with
Section 34 in law it means that the accused is liable for the act which caused death of the deceased
in the same manner as if it was done by him alone. The provision is intended to meet a case in
which it may be difficult to distinguish between acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what part was taken by each one of
them. Section 34 is applicable even if no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt act on the part of the accused.
It was held in Chaman and Another v. State of Uttaranchal,4 that under the provisions of
Section 34 I.P.C. the essence of the liability is to be found in the existence of a common intention
animating the accused leading to the doing of a criminal act in furtherance of such intention. The
provision is intended to meet a case in which it may be difficult to distinguish between acts of
individual members of a party who act in furtherance of the common intention of all or to prove
what part was exactly taken by each of them. Section 34 is applicable even if no injury has been
caused by the particular accused himself. For applying Section 34 it is not necessary to show some
overt act on the part of the accused.
Common intention implies a pre-arranged plan. Pre-arranged plan means prior concert or
prior meeting of minds. Criminal act must be done in concert pursuant to the pre-arranged plan.
Common intention comes into being prior to the commission of the act in point of time. But there
need not be a long interval of time between the formation of the common intention and the doing of
the act.5 When there is no indication of premeditation or of a pre-arranged plan, the mere fact that
the two accused were seen at the spot or that the two accused fired as a result of which one person
died and two others received simple injuries could not be held sufficient to infer common
intention.6 However the common intention may develop on the spot as between a number of
persons and this has to be inferred from the act and conduct of the accused, and facts and
circumstances of the case.1
It was held in Sewa Ram v. State of U.R,2 that direct proof of common intention is seldom
1. State v. Saidu Khan, A.I.R. 1951 All. 21 (F.B.).
2. Ibra Akanda v. Emperor, A.I.R. 1944 Cal. 339 at p. 355.
3. 2004 Cri. L.J. 2527 (S.C).
4. (2009) I Cri. L.J. 978 (S.C).
5. Ramachander v. State of Rajasthan, 1970 Cri. L.J. 653.
6. Ibid.
available. It can only be inferred from circumstances appearing from proved facts.
The true concept of Section 34 is that if two or more persons intentionally do an act jointly,
position in law is just the same as if each of them has done it individually by himself.3
It was held in Paras Raja Manikyala Rao v. State of A.R,4 that Section 34 really means that if
two or more persons intentionally do a common thing jointly, it is just the same as if each of them
had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts
cannot distinguish between co-conspirators, nor can they inquire even if it were possible as to the
part taken by each in the crime. Where parties go with a common purpose to execute a common
object each and every person becomes responsible for the act of each and every other in execution
and furtherance of their common purpose, as the purpose is common so must be the responsibility.
All are guilty of the principal offence, not of abetment only. In combination of this kind a mortal
stroke, though given by one of the party is deemed in the eye of law to have been given by every
individual present and abetting. It was also made clear that for the application of this section it must
be established that there was a common intention in the sense of a pre-arranged plan between the
two and the person sought to be so held liable had participated in some manner in the act
constituting the offence. Unless common intention and participation are both present, this section
cannot apply. Common intention implies pre-arranged plan and acting in concert pursuant to the
pre-arranged plan. Under this section a pre-concert in the sense of a distinct previous plan is not
necessary to be proved. The common intention to bring about a particular result may well develop
on the spot as between a number of persons with reference to the facts of the case and
circumstances of the situation. Though common intention may develop on the spot, it must,
however, be anterior in point of time to the commission of offence showing a pre-arranged plan and
prior concert.
It was held in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand,5 that for
establishing common intention in every case it is not required for the prosecution to prove a pre-
arranged plan or prior concert. In this case on the dispute on cleaning of drain which took place in
the early hours on the date of alleged incident, the accused party which constitutes members of one
family barged into the house of complainant, manhandled her inside and dragged her out where she
was beaten repeatedly. The act alleged against the accused clearly makes out a case of common
intention against them in committing offence of house trespass and causing hurt to the complainant.
It was held in Nandu Rastogi v. State of Bihar? that to attract section 34, Indian Penal Code
it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown
that they shared a common intention to commit the offence and in furtherance thereof each played
his assigned role by doing separate acts, similar or diverse. The facts of this case are eloquent and
the role played by appellant accused of preventing the prosecution witnesses from going to rescue
1. Kripal Singh v. State of U.P., A.I.R. 1954 S.C. 706.
2. 2008 I Cri. L.J. 802 (S.C).
3. Sewa Ram v. State of U.R, 2008 I Cri. L.J. 802 (S.C).
4. 2004 Cri. L.J. 390 (S.C).
5. 2004 Cri. L.J. 4254 (S.C).
6. 2002 Cri. L.J. 4698 (S.C).
of the deceased was the role played by him with a view to achieve the ultimate object of killing the
deceased.
In Maqsoodan v. State of U.P.} the appellants were related to each other. All of them were
armed with deadly weapon and were all together. Some one ordered them, "kill, kill" and then all of
them simultaneously attacked the deceased and others accompanying him. On these facts, it was
held that common intention is a question of fact. It is subjective but it can be inferred from facts and
circumstances. In Dajya Moshya Bhil v. State of Maharashtra? it was held that in order to attract
section 34 mere proof of each of participating culprits having same intention to commit certain
offence is not sufficient. Common intention can be formed on spur of moment. Therefore each one
of the accused must share intention of others.
In Aizaz and others v. State of U.P.? there was enimity between deceased and one of the
accused persons. Accused persons armed with country made pistol caught hold of deceased and
pushed him to ground. One of the accused fired fatal gun shot on neck of deceased. Evidence of
witnesses was clear and cogent. All accused persons were convicted under Section 300 read with
Section 34. Their plea that only one accused bore enimity and had caused injury, other accused had
not used weapons was held without any substance and the conviction was held proper.
It was further observed that consensus of minds of persons to bring about certain result
having criminal propensity was essential ingredient of common intention under Section 34 IP.
Code. Participation in criminal act in some manner was also essential but physical presence at scene
of occurrence was not always necessary.
Cases.—In order to understand the principle of common intention a survey of some of the
important cases would be useful. In Barendra Kumar Ghosh v. Emperor,4 the appellant was
charged, under section 302 read with section 34 of the Indian Penal Code, with the murder of a sub-
postmaster. On 3rd August 1923, sub-postmaster of Sankari Tola post office was counting money
in the back room. Several persons appeared at the door which opened into the room from courtyard
of the office. They demanded the sub-postmaster to give up the money, and immediately afterwards
fired pistols at him. The sub-postmaster died almost immediately. The assailants fled in different
directions without taking the money, but one of them Barendra Kumar Ghosh was chased by the
post office assistants. Although he fired several rounds with his pistol but was caught with a pistol
in his hand. The pistol was produced at the trial. Hence Barendra Kumar Ghosh was prosecuted and
tried for committing murder under section 302 read with section 34 of the Indian Penal Code. The
appellant contended as follows :
(i) That he was standing outside and had not fired at the sub-postmaster;
(ii) That he was compelled to join others for robbery and had no
intention to kill the deceased;
(iii) That in section 34 of the Indian Penal Code where each of the
several persons did something criminal, all acting in furtherance of a common
intention, each was punishable for what he had done as if he had done it by
himself. If section 34 covered all cases of joint liability, sections 114 and 149
would become unnecessary and meaningless.
The Privy Council agreed with the Calcutta High Court and dismissed the appeal. While
holding the appellant liable for murder the following principles were laid down by the Privy
Council :—
1. 1983 Cri. L.J. 218 (S.C).

2. 1984 Cri. L.J. 1728 (S.C).
3. (2008) 4 Cri. L.J. 4374 (S.C).
4. 52 LA. 40.
(i) Even if the appellant did nothing as he stood outside the door, it is
to be remembered that in crimes as in other things "they also serve who only
stand and wait."
(ii) Section 34 deals with the doing of separate acts, similar or diverse,
by several persons; if all are done in furtherance of a common intention each
person is liable for the result of them all, as if he had done them himself, for
'that act' in the latter part of the section must include the whole action covered
by a "criminal act" in the first part, because they refer to it.
(iii) A "criminal act" means that unity of criminal behaviour which
results in something for which an individual would be punishable, if it were
all done by himself alone, in a criminal offence.
(iv) With regard to the third argument of the appellant it was held that
it fixes attention, exclusively upon the accused person's own act. Intention to
kill and resulting death accordingly are not enough; there must be proved an
act which kills, done by several persons and corresponding to it not identical
with, the same fatal act done by one. The answer is that : if this construction
is adopted, it defeats itself for several persons cannot do the same act as one
of them does. They may do acts identically similar, but the act of each is his
own, and because it is his own and is relative to himself, it is not the act of
another, or the same as that others act. The result is that section 34, thus
construed, has no content and is useless.
It was further pointed out that if A and B put a rope round the neck of C and pull its opposite
ends until C dies. This is the situation that is sought to be met by the rule of liability contained in
Section 34. If each is to be made liable for his act alone, as if he had done it himself, both A and B
can say that they are not liable for murder. They can then at most be held liable for attempt to
murder and not for murder for one might not have succeeded in the absence of the other party.
P, Q and R had common intention to rob S. While P and Q entered into the house of S and
beat and robbed him, R stood outside to warn P and Q of any danger. On being prosecuted along
with P and Q. R pleaded that he did neither commit the robbery nor caused injuries to S and hence
was not guilty of any offence. In this case P, Q and R all the three would be guilty of committing
robbery. The plea of R is not sustainable because it was held in Barendra Kumar Gosh v. Emperor,1
that they also serve who only stand and wait. Since R has a share in common intention to commit
robbery and he only stood outside to warn P and Q of any danger, he was equally liable for the
offence of robbery committed in furtherance of common intention.
Another case wherein the scope of the liability under section 34 of the Indian Penal Code
was discussed is Mahboob Shah v. Emperor? on August 25, 1943 at about sunrise, one Allahdad,
the deceased along with a few others left their village and proceeded in a boat for cutting and
collecting reeds on the bank of the river Indus. When they had travelled about a mile down stream
they saw Mohammad Hussian Shah, father of Wali Shah bathing on the bank of the river.
Mohammad Hussain Shah warned them against collecting reeds from land belonging to him. But
Allhadad inspite of this protest collected reeds from that land and started for the return journey.
While they were returning with the bundle of reeds and sailing upstream in the river, one Ghulam
Quasim Shah, nephew of Mohammed Hussain Shah, asked them to deliver him the reeds that were
collected from his uncle's land. But the party refused to do so. He then caught the rope of the boat
and pushed Allhadad and gave him a blow with a stick which was warded off. Allahadad then
picked up a bamboo pole from the boat and struck Ghulam Quasim Shah. Quasim Shah then
shouted for heIP. It was then that Wali Shah and Mahboob Shah came up with loaded guns. On
1. 52 LA. 40 (P.C).
2. 72 I.A. 148 (P.C).
seeing them, Allahdad and his friend Hamidullah, tried to run away, but they were prevented from
doing so by Wali Shah and Mahboob Shah. Wali Shah fired at Hamidullah who died almost
instantaneously. Mahboob Shah fired at Allahdad causing injuries to him. Wali Shah absconded
and was not apprehended. Mahboob Shah and Gulam Quasim Shah were tried under section 302
read with section 34 of the Indian Penal Code for the murder of Allahdad.
Mahboob Shah was sentenced by the ttial court to seven years' rigorous imprisonment for
attempt to murder. But on appeal the Lahore High Court sentenced him to death under section 302
read with section 34 of the Indian Penal Code for committing murder of Allahdad. Mahboob Shah
appealed to the Privy Council against his conviction. The appeal was allowed by the Privy Council
and conviction for murder was set aside. The following principles were laid down by the Court in
this case :—
(1) Under section 34 of the Penal Code, essence of liability to be found in the
existence of a common intention animating the accused leading to the doing of a criminal act
in furtherance of such intention.
(2) 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 furtherance of the
common intention; if this is so then liability for the crime may be imposed on any one of the
persons in the same manner as if the acts were done by him alone.
(3) Common intention within the meaning of section 34 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.
(4) It is difficult, if not impossible, to procure direct evidence to prove the intention
of an individual, in most cases it has to be inferred from his act or conduct or other relevant
circumstances of the case.
(5) Care must be taken not to confuse same or similar intention with common
intention; the partition which divides "their bounds" is often very thin; nevertheless, the
distinction is real and substantial and if overlooked will result in miscarriage of justice.
(6) The inference of common intention within the meaning of the term under
section 34 should never be reached unless it is a necessary inference deductible from the
circumstances of the case.
In the present case, in the opinion of their Lordships, there was no evidence and there were
no circumstances from which it could be inferred that Mahboob Shah, the appellant acted in
concern with Wali Shah in pursuance of a pre-plan when former along with the latter rushed to the
rescue of Ghulam Quasim. The two had the same intention, namely the intention to rescue Quasim
Shah if need be by use of the guns and that in carrying out this intention, Mahboob Shah picked out
Hamidullah and Wali Shah, the deceased (i.e. Allahdad) for dealing, but where is the evidence of
common intention to commit the criminal act complained against in furtherance of the common
intention, there was no case for convicting the appellant for murder. There was no evidence that
appellant and Wali Shah ever entered into a pre-mediated concert to bring about the murder of
Allahdad in carrying out their intention of rescuing Quasim Shah.
These principles enunciated by the Privy Council have been applied in a number of cases by
the courts in India. In Ram Nath v. State of Madhya Pradesh,1 one Sunder was attacked on a dark
night on the public road by his
1. A.I.R. 1953 S.C. 420.
S. 34 1 RFNPRAI FYPI AMATIHWR
enemies who fired at him. There was no evidence as to who fired the fatal shot. The only evidence
was the dying declaration of the deceased and some statements of neighbouring residents, who said
that all the four accused were seen on the road near Sunder. Ram Nath was convicted by the High
Court under section 302 read with section 34 of the Indian Penal Code for murder. The case was
heard in appeal by the Supreme Court which set aside the conviction of the appellant. Mahajan, J.,
observed, "Even if it is true that all the appellants were seen at the spot at the time of firing, this fact
by itself could not be held enough to prove a common intention of the appellants to murder Sunder.
It can well be that these four persons were standing together and one of them suddenly seeing
Sunder fired at him. This possibility has not been eliminated by any evidence on the record. In such
a situation when it would not be known who fired the fatal shot, none of such persons could be
convicted of murder under section 302 I.P.C. It seems to us that in this case the High Court failed to
appreciate the true effect of the decision of the Privy Council in Mahboob Shah v. Emperor and its
judgment in regard to the applicability of section 34, I.P.C. has to be reversed."
Similarly, in Kripal Singh v. State of U.P.? their Lordships of the Supreme Court refused to
infer common intention to murder. In this case on one morning in their fields they saw two other
labourers named Man Singh and Sher Singh going through that way. They asked them as to where
were they going. Man Singh etc. told them that they were going to harvest sugarcane field of Jairaj.
The appellants abused them and asked them not to go and work there. But Man Singh and Sher
Singh did not listen to them and proceeded on. When they had gone only a few yards the appellants
rushed at them and started beating. Bhupal and Kripal beat with the handle of spears and Sheoraj
with a lathi. Jairaj also arrived and asked as to why were they beating his labourers. He also stopped
them from beating. It was then that Sheoraj hit Jairaj on his legs with the lathi and he fell down.
Kripal stabbed him with his spear near the ear. Bhupal stabbed with spear on the left jaw, put his
legs on his chest and extracted the spear-blade from his jaw. Jairaj died with the coming out of the
spear-blade from his jaw. The High Court upheld the conviction under section 302 read with section
34 of the Indian Penal Code for committing the murder. The case went in appeal to the Supreme
Court. Their Lordships of the Supreme Court observed : "Now having regard to, the sequence of
assaults, the parts of the body on which the assaults of Kripal and Sheoraj were aimed and actual
results of these assaults as above indicated, it is difficult to attribute to either of them any intention
to kill the deceased. Nor it is reasonable to suppose that on the spur of,the moment the common
intention of the three appellants which was at first merely to beat the two labourers developed
suddenly into a common intention to kill Jairaj when ne intervened in the altercation. We are,
therefore, unable to uphold the view taken by the High Court that any common intention to kill the
deceased can be attributed to the three appellants. Therefore the only common intention that can be
attributed to all the three appellants, in so far as assault on Jairaj is concerned, is the common
intention to beat Jairaj also with the weapons in their hands which were likely to produce grievous
injuries."
In view of above observation all the three were held guilty in respect of the assault on Jairaj
for an offence under section 326 of the Indian Penal Code. However, Bhupal alone was declared
guilty for committing murder under section 302 of Indian Penal Code.
l: A.I.R. 1954 S.C. 706.

In Mahboob Shah's' case attention was drawn by the Privy Council not to confuse same or
similar intention with common intention. For an intention to be common it must be known to all the
members and must also be shared by them. Common intention always exists prior to the
commission of crime in point of time. The distinction between same or similar intention and
common intention was brought forth by the Supreme Court in Pandurang v. State of Hyderabad.2 In
this case one Ram Chandra Salke had gone to his field to pick up chillies with his wife's sister,
Rasika Bai and his servant Subhanarao. Rasika Bai and Subhanarao were picking up chillies in one
field and Ram Chandra in another field about a furlong away. A little later Rasika -BaTon hearing
some alarm from that direction rushed along with Subhanarao. They saw all the five accused
attacking Ram Chandra with sticks and axes. Rasika Bai protested against the assault but they
threatened her of grave consequences. Ram Chandra died almost instantaneously. All the five
persons were prosecuted under section 302 read with section 34 of the Indian Penal Code for
committing murder. The conviction of the appellant (i.e. Pandurang) for murder was set aside by
the Supreme Court, on the following ground : "Several persons can simultaneously attack a man
and each can have the intention, namely, the intention to kill, and each can individually inflict a
separate fatal blow and yet none would have the common intention required by the specific section
because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each
would be individually liable for whatever injury he caused but none would be vicariously convicted
for the act of any others, and if the prosecution cannot prove that his separate blow was a fatal one,
he cannot be convicted of the murder however clearly an intention to kill could be proved...."
By applying the above principle the Supreme Court found the accused guilty of causing
grievous hurt under section 326 of the IP. Code. The conviction of the accused for murder was set
aside because the prosecution failed to prove that murder was committed in furtherance of common
intention of all the accused.
In Ninaji Raoji v. State of Maharashtra? Ninaji Raoji and seven others quarreled with
Bhonaji and his sons on impoundings of catties of one of the accused by Bhonaji's sons. There was
some altercation between the accused Ananda and Samadhan and the parties beat each other.
Samadhan received injuries and went to his house to dress them up. His father Bhonaji, was sitting
in front of his house. It is alleged that the accused Ninaji, Raoji and Parashram beat Bhonaji who
later on died. The other accused' took Samadhan to the house of one Trimbak and beat him there. It
was held that—"There was no reliable evidence on the record to prove whether the fatal blow on the
head of the deceased was caused by A or B. Their intention was also to cause injury to the son of
deceased and not to the deceased himself. The other blows did not fall on any vital part of the body,
and in the absence of evidence to establish that their common intention was to cause death, it
appears that the accused had the common intention of causing grievous injury."
Therefore they were, held liable not for causing murder but for causing hurt under section
325 read with section 34.
In Nitya Sen v. State of W.B.,4 one Chintamoni Ghosh, the deceased was employed in a Plant
1. 72 I.A. 148 (PC).
<2. A.I.R. 1955 S.C. 216.
3. A.I.R. 1976 S.C. 1537. 1
4. 1978 Cr. L.J. 481 (S.C).
in Hugli. He used to come to his village every Saturday. When he came to his house on
November 13, 1971, at about 8.30 p.m., he knocked at the 'Khirki' of his house. When his
two brothers Nabjiwan Ghosh and Ratan Ghosh opened the door they saw-that brother
Chintamoni Ghosh was being assaulted by Nitya Sen and two others (namely, Baidynath
Ghosh and Dharam Ghosh) and was being dragged towards a bamboo grove in the east,
where they saw him being struck with daggers. When the two brothers tried to go to the help
of their brother Chintamoni Ghosh, Nitya Sen the appellant who was standing with a pistol
in his hand threatened them. They dealt 11 blows including three fatal blows of great
intensity. The assailants shouted that they had killed the "police agent" and the appellant
fired one shot before they left the place of occurrence. It was held that—"There was not only
ample opportunity for a pre-concert, but the assailants, including the appellant committed the
murder
of the deceased in pursuance of a preconcerted plan, in a cold blooded manner..................................
the prosecution had succeeded in proving that the murder was committed in furtherance of the
common intention of the three accused."
In Nandu Rastogi v. State of Bihar,1 the main accused A-l came to the shop of the informant
at 5 p.m., where informant was sitting with his tenant. A-l warned the informant to caution his son
that he should not interfere in his matters. He threatened that if he did not do so his son may be
killed. So saying he went away threatening the informant with dire consequences. At about 6.45
p.m. electricity supply was cut-off when informant was sitting in his shop along with some other
eyewitnesses and his son. Since it was the Diwali day, candles and earthen lamps were lit in his
shop and elsewhere. 15 minutes later accused A-l alongwith his brother B and some others including
/ and M in all five accused entered his shop armed with country made pistols. A-l and J caught hold
of the son of informant and took him inside the residential apartment which was just behind the
shop at gun point. When the informant and others wanted to intervene, they were prevented by one
of the accused and his companion who stood guard with country made pistols in their hands. They
threatened them to keep quiet. After the deceased was taken inside the house by the accused persons
gun shots were fired. Accused fled away and when informant went inside, he found his son
bleeding and unconscious who died later on in hospital.
It was held that all the five accused persons who came to the shop of the informant had a
common intention to commit the murder and they acted pursuant to a pre-arranged plan and hence
three of them were liable to be convicted with the aid of section 34, Indian Penal Code.
A perusal of the above cases would show that to invoke section 34, prior concert or a pre-
arranged plan has to be established. Though common intention has to be inferred from the act or
conduct of the accused and other relevant circumstances, it is not necessary that any overt act must
have been done by any particular accused. It would be enough if the criminal act has been done by
one of the accused in furtherance of the common intention. 2 The common intention must be to
commit the particular crime although the actual crime may be committed by any one sharing the
common intention and then all others can be held guilty of the crime.3
1. 2002 Cri. L.J. 4698 (S.C).

2. State of U.R v. Iftikhar Khan, A.I.R. 1973 S.C. 863.
3. Hadev Singh v. State of Punjab, 1975 Cri. L.J. 243.
In State of Haryana v. Tej Ram} T and R were brothers who were alleged to have committed
murder of D by attacking him with pharsa and lathi at dead of night. Both were nursing grudge
against the deceased. Both came armed to D's house and made a concerted assault on him. The
nature of injuries revealed that they were caused by sharp edged weapon as well as blunt weapon. It
was held that in the circumstances the accused aimed with lathi cannot be acquitted on the ground
that he did not attack the deceased or that he had no common intention to murder because the
evidence of eye-witnesses that D was attacked by both was supported by medical evidence which
showed two kinds of injuries. Both were convicted under section 302 read with section 34.
In Aher Pitha Vajshi v. State of Gujarat} one Aher Pitha Vajshi and his five sons were
accused of causing homicidal death of Nobha Ram. The accused first dragged the deceased inside
the Deli (doorsteps) of their house and after assault threw the body on the road in front of the Deli.
The/ Supreme Court held that all the accused were active in concert and were associated with each
other in initially dragging Nobha inside the Deli as well as in throwing out Nobha on the road. The
body of Nobha Ram also bore 20 injury marks which corroborated the fact that all the accused had
shared the common intention to cause the death of Nobha Ram.
In Major Singh v. State of Punjab} the deceased Gurtar Kaur was married to Baldev Singh,
brother of the appellant, while the other deceased, Sukho was married to the appellant. Both were
daughters of Pritam Singh. After the death of Baldev Singh, his wife Gurtar Kaur also lived with the
appellant as his wife. None of the two wives had any children. Jeet Singh A-l and Balwant Kaur A-2
along with the appellant Major Singh were constantly harassing the deceased for not bringing
sufficient dowry. A day before the occurrence PW-2 Pritam Singh along with his son Phulel Singh
had visited the house of A-l to bring about a settlement in regard to the dispute of non-payment of
dowry. Both of them stayed overnight in the house of Jeet Singh and the following morning at
about 9 or 10 a.m. both A-l and A-2 picked up a fight with the deceased ladies in regard to the
complaint made by them to their father about dowry demand. During the quarrel A-l picked up a
Karsi and Thana Singh A-4 picked up a Kulhari and assaulted the deceased. At that time, the
appellant caught hold of Gurtar Kaur by her hand while A-2 Balwant Kaur caught hold of Sukho's
hand so as to facilitate the other two appellants namely A-l and A-4 to assault the deceased. The
injury caused to the deceased was so grievous that both of them died on the spot.
It was held that when the assailants picked up the weapons and came to assault the victims,
the appellant held the hand of one of the victims. There is nothing to show that he either released
the hand of the deceased or tried to dissuade the assailants from attacking. In such a situation it is
reasonable to conclude that the appellant also shared the intention of the assailants which was to
commit murder of the deceased.
It was held in Subramani v. State of Tamil Nadu,4 that if the appellants acted in exercise of
their right of private defence of property, it cannot be said that they committed a criminal act in
furtherance of a common intention because section 96 makes it abundantly clear that nothing is an
offence which is done in the exercise of right of private defence. They did not intend to commit any
criminal act or to do anything which may be described as unlawful. Their object was not to kill the
deceased but to protect their property. It may be that some of them might have exceeded their right
of private defence and for that they may be individually held liable. But it cannot be said that
1. 1980 Cri. L.J. 1057 (S.C).
2. 1983 Cri. L.J. 1049 (S.C).
3. 2003 Cri. L.J. 473 (S.C).
4. 2002 Cri. L.J. 4102 (S.C).
murder was committed pursuant to a common intention to commit such crime because the act was
done by them in defence of the property which was in their possession for a long time.
Common intention is a matter of interference.—It was held in Jai Bhagwan v. State of
Haryana? that to apply Section 34, I.P.C. apart from the fact that there should be two or more
accused, two factors must be established : (1) common intention, and (2) participation of the
accused in the commission of an offence. If common intention is proved but no overt act is
attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious
liability, but if participation of the accused in crime is proved and common intention is absent,
section 34 cannot be invoked. In every case it is not possible to have direct evidence of common
intention. It has to be inferred from the facts and circumstances of each case.
In Gyasiram v. State of M.P.,2 there was party faction in the village consisting of two
different communities. On the date of the incident, the persons belonging to the community of the
accused were on the pathway waiting for the deceased. Both the accused persons were armed with
firearms. When the deceased and his companions passed by their side they followed them. Then
they opened fire. There was an indiscriminate firing made by the accused persons and their other
companions. The accused fired a bullet on the buttocks of the deceased after he had fallen down
which proved fatal. Co-accused Angad also fired by aiming at the deceased. Even some
eyewitnesses were injured. It was held that under the circumstances the participation of Angad in
the incident and his sharing common intention with the appellant Gyasiram to commit the murder of
deceased has been established beyond doubt.
Common intention may develop on the spot.—In certain situations common intention may
develop suddenly on the spot3 and such common intention may be inferred from the facts and
circumstances of the case and conduct of the accused. In Rishi Deo Pandey v. State of U.P.,4 'A' and
'B' two brothers were seen near the cot of the victim who was sleeping. One of them was armed
with a gandasa and another with a lathi. Both of them were seen running away from the bed room
of the victim. The victim died of an incised wound on the neck which, according to medical
evidence, was necessarily fatal. The Court found that the two brothers shared the common
intentions to cause death. It was held that common intention may develop on the spot also. But
where it is alleged that the common intention developed during fight, it must be established.5
In Ram Prasad v. State of U.P.,6 four accused, P, M, H and K tried to forcibly stack their bundles of grains in front of R's enclosure. R objected because the land
belonged to him. P and M were armed with lathis and assaulted R with lathis. H and K assaulted him with kicks and fists. R died as a result of head injuries caused by lathis.
It was held that the knowledge of the appellants that the lathis would be fully and effectively used in the process of forcibly occupying the land was not sufficient to establish
the common intention of committing a crime punishable under section 302. But when P and M gave a blow on the head of R, they developed and shared a common intention
of causing such injury to him which in the ordinary course of nature was sufficient to cause his death. Therefore only P and M could be convicted of committing murder by
applying section 34 and the other two could not be convicted under section 302 of the Indian Penal Code.
We know that it is difficult to prove the intentions of a man and so also that the intention was
common amongst several persons. Common intention can be proved from the act or conduct or
other circumstances of the case which throw light on the state of the mind of the accused. The
1. 1999 Cri. L.J. 1634 (S.C).
2. 2003 Cri. L.J. 878 (S.C).
3. Krishna Covind Patil v. Slate of Maharashtra, A.I.R. 1963 S.C. 1413.
4'. A.I.R. 1955 S.C 331.
5. Amrik Singh v. State of Punjab, 1972 Cri. L.J. 465.
6. A.I.R. 1976 S.C. 199.
number of injuries inflicted and also the particular part of the body selected for inflicting injury
provide a strong indication of the common intention. The totality of the circumstances must be
taken into consideration in arriving at the conclusion whether the accused had a common intention
to commit an offence with which they could be convicted.' In Ram Tahal v. State of U.R? six
accused persons were charged for demolishing the thatch of one Ram Badal and for committing the
murder of Ram Harakh and Jagga, brother and mother-in-law respectively of Ram Badal. There was
some dispute between Ram Badal and the accused concerning construction of a chhappar. Ram
Badal constructed a chhappar. The accused threatened Ram Badal to pull that down or face serious
consequences. Ram Badal did not pull down his chhappar. Therefore on 30th November, 1966 at
about 9.30 a.m. Ram Tahal along with his four sons and one daughter came aimed with khurpa,
ballams and lathis etc. and began to pull down the chhappar. Ram Harakh resisted the move and
was beaten by the accused. On an alarm raised by Ram Harakh, Ram Badal and some of his family
members rushed to the scene. They were also beaten by the accused. One of the accused Prem is
said to have struck Jagga with his ballam after she had fallen down. The injured persons raised an
alarm and them a number of village people came on the scene of occurrence. On their intervention
the accused ran away carrying their weapons with them. Jagga died on her way to police station and
Ram Harakh in the hospital on Dec. 5, 1966. Ram Tahal was arrested the same day carrying a blood
stained khurpa and wearing a blood stained kurta. His sons Matadin was also arrested the same day
carrying a blood stained lathi. The accused were also medically examined and some injuries were
found on them also. It was held that—"The totality of the circumstances indicated without doubt
that there was a pre-arranged plan and a common intention to remove the thatch and to attack any
person with the weapons if he resisted."
In this case Supreme Court agreed that common intention should be anterior in time to the
commission of the crime showing a pre-arranged plan and prior concert and that the pre-arranged
plan may develop on the spot during the course of the commission of the offence but the crucial
circumstance is that the said plan must precede the act constituting the offence.
Where several persons had jointly attacked the deceased with lethal weapons which resulted
in twenty four incised wounds on the head, shoulders and forearms, some of which were serious
and taken as a whole were fatal also. On these facts the Supreme Court found the^common
intention to have been proved justifying the conviction under section 302 read with section 34 of
the I.P.C.3
In Dukhmochan Pandey v. State of Bihar? a mob of 200 persons came to the field armed with different weapons with a sole object to desist the prosecution party
from carrying on transplantation of paddy seeds on the field but on spur of the movement on account of certain 'lalkara' being given by some of the accused persons, persons
armed with weapons started assaulting the deceased. Accused Dukhmochan Pandey and Sarbnarain Mishra fired their respective guns as a result of which Rozaullah and
Ahmed Shah fell down. The informant Kapileshwar Pandey FW-18 being terribly frightened ran away to the nearby Janera field and took shelter keeping himself out of the
sight of the assailants. He could see various attacks of Afferent accused persons on the labourers who were in the field, while assault on the labourers was going on some
body cried out that Magistrate with the police has arrived. The accused persons hearing such call ran from the place of occurrance. The Magistrate and the police who were
1. Ram Tahal v. State of U.P., A.I.R. 1972 S.C. 254.

2. Ibid.
3. B.N. Srikantiah v. State of Mysore, A.I.R. 1958 S.C. 672.
4. 1998 Cri. L.J. 66 (S.C).
camping in the village but were not at the place of occurrence of that day arrived soon after coming to know of the incident. The informant PW-18 Kapileshwar Pandey
wrote a detailed account of the incident and gave it to the Magistrate. It was held that all the accused cannot be convicted under section 302/34 for committing murder. The
mere fact that the accused persons were armed with some weapons itself would not be sufficient to attribute common intention of all of them to commit murder from mere
assault even not on vital part of the body which ultimately resulted in causing some minor injuries, it may not be sufficient to establish beyond reasonable doubt that they
also shared a common intention of causing murder of deceased. However, persons firing guns on hearing Ualkaras' would be liable to be convicted under section 302/34, IP.
Code.
It was further held that in a given case common intention may develop at the spur of the
moment in course of the commission of 'offence. But such common intention which developed at
the spur of the moment is different from a similar intention actuated a number of persons at the
same time, and therefore, the said distinction must be borne in mind which could be relevant in
deciding whether section 34 of the IP. Code can be applied to all those who might have made some
overt attack on the spur of the moment. Unless such common intention is established as a matter of
necessary inference from the proved circumstances of the case, the accused persons could be
individually liable for their respective overt attacks and not for the act done by any other person.1
Physical Presence and active participation when necessary.—Physical presence of the
accused at the place of occurrence is essential for application of section 34. In Shree Kantiah v.
State of Bombay? the accused, a public servant was charged under section 409 read with section 34
I.P.C. The accused was incharge of a Government depot. His companions permitted Government
stores to pass out of the depot. The accused had abetted the removal of the goods by planning it
with his companions, although there was no evidence that he was present when goods were
removed out of the depot. It was held that the accused could be convicted for abetment but not for a
charge under section 409 of the I.P.C. because the evidence of planning could only prove a charge
of abetment and not of actual participation. It was observed that the essence of section 34 is that the
accused must be physically present at the actual commission of the offence and must also
participate in the commission of it. He need not be present in the very room the offence is
committed but must be near enough such as standing guard at the gate of the house or keeping
watch by standing on the road ready to warn his companions about any approach of danger, but he
must be physically present and actually participate in the commission of the offence in some way or
other at the time crime is actually being committed.3
This proposition has been slightly modified by the Supreme Court in J.M. Desai v. State of Bombay? in this case J.M. Desai was the Managing Director of a
dyeing concern by the name of Parekh Dyeing and Printing Mills Ltd., Bombay. The company entered into a contract with the Textile Commissioner undertaking to dye a
large quantity of cloth which was supplied to the company for dyeing purposes. Some quantity of cloth was dyed and delivered to the Textile Commissioner while the
1. 1998 Cri. L.J. 66 (S.C).

2. A.I.R. 1955 S.C. 287.
3. Shiv Prasad v. State of Maharashtra, A.I.R. 1965 S.C. 264.
4. A.I.R. 1960 S.C. 889.
remainder was not so delivered in spite of repeated demands made by the Textile Commissioner. Therefore, the Managing Director and Second Director were prosecuted for
criminal breach of trust under section 409 read with section 34, I.P.C. It was held that, "to invoke section 34 successfully participation of several persons in doing the act and
not merely in its planning is necessary. But this participation need not in all cases be by physical presence. In offence involving physical violence normally presence on the
scene of the offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other diverse acts
which may be done at different times and places."
It was held in Krishna v. State,1 that a charge under section 34 of the Penal Code presupposes
the sharing of a particular intention by more than one person to commit a criminal act. The
dominant feature of section 34 is the element of participation in actions. This participation need not
in all cases be by physical presence. Common intention implies acting in concert. There is a pre-
arranged plan which is proved either from conduct or from circumstances or from incriminating
facts. The principle of joint liability in the doing of a criminal act is embodied in Section 34 of the
Indian Penal Code. The existence of common intention is to be the basis of liability. That is why the
prior concert and the pre-arranged plan is the foundation of common intention to establish liability
and guilt.
It was further held that constructive liability under section 34 may arise in three well defined
cases. A person may be constructively liable for an offence which he did not actually commit by
reason of : (1) the common intention of all to commit such an offence (Sec. 34); (2) his being a
member of a conspiracy to commit such an offence (Section 120-A) and (3) his being a member of
an unlawful assembly, the members whereof knew that an offence was likely to be committed (Sec.
149). Section 34 is framed to meet a case in which it may be difficult to distinguish between the
acts of individual members of a party or to prove exactly what part was taken by each of them. The
reason why all are guilty in such cases is, that the presence of accomplices gives encouragement,
support and protection to the person actually committing the act. The provision embodies the
common sense principle that if two or more persons intentionally do a thing jointly it is just the
same as if each of them had done it individually.
It was also held that applicability of section 34 depends upon the facts and circumstances of
each case. As such no hard and fast rule can be laid down as to the applicability or non-applicability
of section 34. For applicability of the section it is not necessary that the acts of several persons
charged with commission of an offence jointly, must be the same or identically similar. The acts
may be different in character, but must have been actuated by one and the same common intention
in ouder to attract the provision.
In the instant case of murder, common intention was proved. Injuries inflicted on the head of
the victim by one of the accused was found to be fatal. Injuries inflicted by another accused on the
back side of victim were not fatal. It could not, however, be said therefrom that the accused who did
not inflict fatal injuries was not liable to be convicted under section 302 read with section 34.
In State of Kerala v. Rajappan Nair? on 1.8.1981 at about 8 p.m. when D was returning
home with Rs. 5018/- in hand, accused A and B followed him and in order to commit theft A beat D
1. 2003 Cri. L.J. 3705 (S.C).

2. 1987 Cri. L.J. 1257 (Kerala).
on his head with a rod and when he fell down unconscious the accused committed theft of the
amount. B was charged with the aid of section 34 I.P.C. The only evidence against B was that D
and E saw him in the company of A going ahead of D just before the incident. When D flashed his
torch and identified the persons both accused retreated to a side of the road. On proceeding further
when D looked back he was beaten by A and he fell down. He did not mention the presence of B,
the second accused at that time along with A. On these facts it was held that direct evidence
regarding participation of B was only his presence along with A, the first accused prior to the
incident. Such evidence by itself without proof of presence at the time of commission of offence or
participation in it cannot prove common intention on the part of B. Therefore second accused i.e. B
cannot be held vicariously liable for offence committed by A, the first accused.
In Indar Singh v. The Crown? four persons went armed with guns to the house of P to
commit robbery. P was absent. A and B, the two robbers got the minor son of P to take them to the
field where P was working. During their absence the other two robbers C and D remained at the
house. One of them C stood near the main door of the house which he closed. Two sons of P who
were at their shop close by having had their suspicions aroused, then came to the house and pushed
open to main door, whereupon C fired at them resulting in the death of one of them. It was held that
A was also guilty of murder because though temporarily absent he was participating in the joint
criminal action in the course of which murder was committed.
In Shankar Lai v. State of Gujarat? four accused with common intention to kill M were
shooting at R in the bona fide belief that R was M. The Supreme Court held that they were certainly
doing a criminal act in furtherance of the common intention to kill M within the meaning of section
34. The court held that the accused were guilty under section 302 read with section 34 because in
such cases the question is not whether the committing of a mistake was a part of the common
intention, but whether it was done in furtherance of the common intention.
In Poosaram v. State of Rajasthan? K and D were real brothers, while accused Poosaram
was the son of K. The deceased was also a resident of the same village to which the above three
accused belonged and was also distantly related to them. But his relations with the accused were not
happy for some time. One day when Bhakhra Ram the deceased was in search of his missing
camels in the jungle, all the three accused persons opened a joint and concerted attack on him and
struck blows to him with lathis. Hearing the outcries of the victim Ram Singh, who was with his
livestock nearby saw them striking blows to the victim and requested them not to beat him, but his
request fell on deaf ears. Instead the accused threatened him to be away lest he would also meet the
same fate. When the accused disappeared Ram Singh went to the victim and found his hands tied
with a turban. The turban was also found wrapped round his neck. Beating resulted in multiple
injuries and there was profuse bleeding from his wounds. Ram Singh informed the mother of the
victim about the incident and when she visited the victim, he told that the abovenamed accused had
belaboured him. Thereafter he died. On these facts it was held that the accused had jointly and
conceitedly attacked the victim and the pircumstances were sufficient to infer common intention on
the part of the accused. Therefore, they were convicted for culpable homicide not amounting to
murder under part II of Section 304, IP. Code.
In Sttresh v. State of U.P.,[ the murder was the consequence of land dispute between two
brothers Suresh and Ramesh. On the night of 5-10-1996 when Ramesh and his wife Ganga Devi
were sleeping in his house with their four children, his brother Suresh and Ramji brother-in-law of
1. (1933) 14 Lab. 814.
2. A.I.R. 1965 S.C. 1260.
3. 1984 Cri. L.J. 1848 (Raj).
Suresh cut three children aged 1 year, 3 years and 9 years with axe and chopper. They also cut and
killed Ramesh and1 his wife Ganga Devi. The only surviving member of the family was a 7 year old
male child Jitendra son of Ramesh who too had suffered three incised wounds on the scapular
region. Jitendra narrated the entire incident before the trial court. He also said that his aunt Pavitri
Devi clutched the taft of his mother's hair and yelled like a demoness in the thirst for the blood of
entire family. But the other two witnesses did not attribute any overt act to Pavitri Devi except that
she too was present near the scene of occurrence. All the three accused were convicted for murder
by the trial court but Pavitri Devi was acquitted by the High Court. The other two accused were
awarded death sentence under section 302 read with section 34, Indian Penal Code. It was held by
the Supreme Court that in order to attract the application of section 34, I.P.C. the accused should
have done some act which has nexus with the offence. It is enough that the act is only for guarding
the scene for facilitating the crime. The act need not be overt, it would be enough if it is only a Covert
act provided that such act is proved to have been done by the co-accused in the furtherance of the
common intention. Even an illegal omission can, in certain circumstances, amount to an act e.g. a
co-accused, standing near the victim to move away to escape from the onslaught deliberately
refrained from doing so with the idea that the blow should fall on the victim. Such omission can also
be termed as an act in a given situation. In other words, the accused who only keeps the common
intention in his mind but does not do any act at the scene cannot be convicted with the aid of
Section 34, Indian Penal Code. In the instant case the F.I.R. shows that the accused Pavitri Devi
was standing on the road when the incident happened. Either she would have reached on the road
hearing the sound of the commotion because her house is situated very close to the scene or she
would have merely followed her husband and brother out of curiosity since they were going armed
with axe and choppers during the wee hours of the night. It is not a necessary conclusion that she too
would have accompanied the other accused in furtherance of the common intention of all the other
accused. Thus she had not shared common intention with other accused and hence her remaining
passively on the road is too insufficient for reversing the order of acquittal passed by the High Court
in order to convict her with the aid of section 34, Indian Penal Code.
At the same time the Supreme Court has further observed that even the concept of presence
of the co-accused at the scene is not necessary requirement to attract section 34 e.g. the co-accused
can remain a little away and supply weapons to the participating accused either by throwing or by
catapulting them so that the participating accused can inflict injuries on the targeted person. Another
illustration with advancement of electronic equipment can be cited like this : One of such persons in
furtherance of the common intention, overseeing the actions, from a distance through binoculars can
give instructions to the other accused through mobile phones as to how effectively the common
intention can be implemented. There is no reason why section 34 cannot apply in the case of these
two persons indicated \ in the illustrations.2
Burden of proof.—To attract the application of section 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in
furtherance of common intention of all. In other words the prosecution must prove facts to justify an inference that all the participants of the act had shared a common
intention to commit the criminal act which was finally committed by one or more of the participant.1
1. 2001 Cri. L.J. 1462 (S.C).

2. Ibid.
In Gupteshwar Nath Ojha v. State of Bihar,2 the appellants were present on the spot of the
incident and shouting but did not participate in the act of beating. They were directing the other
persons to attack the deceased. They were convicted on the basis of the common intention. It was
held that it is not necessary that the evidence of common intention must be coming forth
straightway. It can be inferred from the circumstances of the case. It is also necessary to prove that
the accused were members of an unlawful assembly and they were .acting in pursuance of a
common object.
In Allad Naik and another v. The State? it was held that common intention can be inferred
from the surrounding circumstances and the conduct of the accused persons preceding, attending
and subsequent to the occurrence. In this case two accused had not been pulling on well with the
deceased and they have a motive for commission of the offence and both of them challenged and
attacked the deceased and at the instance of one, the other shot an arrow. On the day following, they
carried the severed head of the deceased with a blood-stained axe to the place where they were
apprehended. Both of them had gone to a relation at the place where they were apprehended and
had kept some papers with the relation. Both of them had been seen by a witness with arms in hands
and with an object, which appeared to be a human head soon after the occurrence and during the
course of investigation, incriminating articles had been seized consequent upon their statements
while in custody, those acts and conducts on the part of the accused persons clearly establish that in
furtherance of their common intention to do away with the life of the deceased, they attacked and
killed the deceased by causing injuries sufficient in the ordinary course of nature to cause death.
In Dewan Chand v. State? it was held that where the informant in his statement merely stated
that G one of the accused had conspired with another accused who inflicted the blow but no overt
act showing his common intention was alleged the existence of pre-arranged plan could not be said
to be established and therefore, it could not be said that the injury to victim was caused in
furtherance of common intention of the accused person. That being so 'G' is entitled to benefit of
doubt.
Conviction of one and acquittal of others.—When two accused are prosecuted on the ground
of benefit of doubt, the other accused cannot be convicted under section 302 simpliciter in the
absence of proof of exact nature of injuries caused by each accused. Where common intention is not
proved the prosecution must establish the exact nature of injuries caused by each accused and more
1. Bhaba Nancla Sarma v. State of Assam, A.I.R. 1977 S.C. 2252.
2. 1986 Cri. L.J. 1242 (S.C).
3. 1983 Cri. L.J. 1032 (Orissa).
4. 1984 Cri. L.J. 1045, (Delhi).
5. Baul v. State of U.P., A.I.R. 1968 S.C. 728.
6. Wasim Khan v. State of U.P., A.I.R. 1956 S.C. 400.
7. A.I.R. 1960 S.C. 289.
so when one of the accused has got the benefit of doubt. It cannot be postulated in such
circumstances that the other accused alone caused all the injuries. 5 Therefore, in such a case the
accused can only be convicted under section 325 instead of section 302, I.P.C. But the accused
could be convicted by application of section 34 even if all his co-accused were acquitted provided
that there was a finding that the accused and others had committed the offence in furtherance of
their common intention.6 In Bharwad Mepa Dauna v. State of Bombay? the Supreme Court
declared that the test for determining whether the remaining accused, one or more, could be
convicted with the aid of section 34, is that whether the remaining accused shared a common
intention to commit a crime and participated in its commission. If on the evidence such intention
and participation is established, the remaining accused could be convicted by application of section
34. If after the acquittal of other accused, a single accused remains whose identity is clearly
established, he can be convicted only when it is proved beyond doubt that he shared the common
intention to commit the offence committed with some persons other than the acquitted accused.
Such other persons may be named or unnamed by the prosecution.
A, his two sons B and C, his brother D and his brother's son E were charged for the murder
of 'A's sister-in-law P by several acts done by them in furtherance of the common intention of all.
There was no evidence that A by his act killed P. The Sessions Judge convicted A, B and C
accordingly for murder but acquitted D and E. The High Court, on appeal, acquitted B and C and
confirmed the conviction of A by the Sessions Judge. In this case the decision of the High Court is
not correct because all the other accused have been acquitted and only one of them A was
convicted. There must be at least two persons then only a person can be corivicted under section
302/34 of Indian Penal Code. Since there was no evidence that A by his own act killed P, therefore
when all others charged are acquitted only A cannot be convicted unless it is proved beyond
reasonable doubt that A shared common intention to commit the offence of murder with some
persons other than the acquitted accused. In the present case no such evidence was available.
Therefore conviction of A only is not justified.
In Maina Singh v. State of Rajasthan,1 the accused was prosecuted along with other four
accused for committing murder under section 302 read with section 49 or 34, IP. Code. The other
four accused were given benefit of doubt. It was held that in the absence of evidence that the
accused acted conjointly with some other named or unnamed persons, there would be no conviction
under section 302. In this case all co-accused were acquitted and there was no evidence that the
accused acted conjointly with some other persons unnamed by the prosecution. In Krishna v.
Maharashtra,2 four persons were charged for murder under section 302 read with section 34 of the
IP. Code. Three of them were acquitted and only fourth one was convicted by the High Court. The
Supreme Court held his conviction as wrong and observed as follows :
"The effect of the acquittal of three was that they did not conjointly act
with the 'fourth accused in committing the murder. If that was the case, the
fourth accused could not be convicted for having committed the offence
conjointly with the acquitted persons."
Therefore, on a perusal of the above cases the law on the subject may be stated as follows :
(i) Where more than one persons are charged to have committed an
offence conjointly in furtherance of common intention of all of them and some
of them are acquitted but more than one are convicted, the conviction will be
justified provided the convicted share the common intention.
(ii) But if only one is convicted and all others are acquitted conviction
will be bad unless he is proved by evidence to have committed the offence
conjointly with some other persons whether named or unnamed by the
prosecution.
Individualisation of criminality.—When a crime is committed by the concerted action of a
plurality of persons constructive liability implicates each participant, but the degree of criminality
may vary depending not only on the injurious sequel but also on the part played and circumstances
1. A.I.R. 1976 S.C. 1084.

2. A.I.R. 1963 S.C. 1413.
present, making a personalised approach with reference to each. The Court must consider in an individualised
manner the circumstances of the involvement of the appellant, his non-age and expectation of consequence.'
Distinction between Common intention and Common object.—It was held in
Chittannal v. State of Rajasthan? that section 34 as well as section 149 deal with liability
for constructive criminality i.e., vicarious liability of a person for acts of others. Both
(he sections deal with combinations of persons who become punishable as sharers in an
offence. Thus they have a certain resemblance and may, to some extent, overlap. Both
the Sections 34 and 149 deal with the case of constructive criminal liability. That is to
say criminal liability is attached to a person for an act not actually done by him. But
(here is a clear distinction between the two sections and the scope and extent of the two
Sections should not be confused. The distinction between Sections 34 and 149 becomes
important in cases in which the charge under Section 149 fails in respect of some of the
accused only and as a result even the remaining accused cannot be convicted under that
section because their number falls below live. In such cases the question would be
whether the remaining accused could be convicted under Section 34. In such cases the
Court has to examine the fact and circumstances of the case to determine whether the
elements of Section 34 of I.P.C. exist or not. But a clear distinction is made out between
common intention and common object in that common intention denotes action in concert
and necessarily postulates the existence of a pre-arranged plan implying a prior meeting
of minds, while common object does not necessarily require proof of prior meeting of
minds or pre-concert. Though there is substantial difference between the two sections,
they also to some exienl overlap and it is a question to be determined on the facts of
each case whether the charge under section 149 overlaps the ground covered by section
34. Thus, if several persons numbering five or more, do an act and intend to do it, both
section 34 and section 149 might result in prejudice to the accused and ought not,
therefore, to be permitted. But if it does involve a common intention then the substitution
of section 34 for section 149 must be held to be a formal matter : whether such a
recourse can be had or not must depend on the facts of each case. The non-applicability
of section 149 is, therefore, no bar in convicting the accused under section 302 read with
section 34, Indian Penal Code, if the evidence discloses commission of an offence in
furtherance of the common intention of them all. i
It was held by the Supreme Court in Nanak Chanel v. State of Punjab? that the community of intention
required by Section 34 is replaced in Section 149 by community of object, which is quite a different element.
Common intention presupposes prior concert and meeting of minds, whereas a common object may be formed
without that. There may be cases where the object of group is one, but the intentions of the participants differ.
( 1 ) The basis of liability under section 34 is the existence of common intention
animating the accused persons.
Liability under section 149 is based on the existence of common object or knowledge of the probability
of the commission of the offence i.e. natural consequences as the accused knew to be likely to be committed.
(2) Common intention within the meaning of Section 34 is undefined and
unlimited.
Common object is defined and is limited to the five unlawful objects stated in section 141 of the Code.
(3) Criminal act under section 34 must be done in furtherance of common intention
Criminal act under_ section 149 must be done in prosecution of the common object
or it would be sufficient if the members of the unlawful assembly knew that offence was likely to be committed.
(4) Some act howsoever small or insignificant must be done by every person
1. Hiralal Mallick v. State of Bihar. A.I.R. 1977 S.C. 2236.
2. 2003 Cri. L.J. 889 (S.C).
3. AIR 1953 SC 274.
accused of the commission of an offence i.e.. active participation in commission of
crime is necessary for application of section 34.
Merely membership of the unlawful assembly at the time of commission of crime would be
sufficient for application of section 149. Active participation in commission of crime is not
necessary.
(5) In order to hold a person liable for any offence by application of section 34,
the offence must be committed by two or more than two persons.
For application of section 149, the offence must be committed by five or more persons
because then only they can form an unlawful assembly.
(6) Section 34 enunciates the principle of joint liability but creates no specific
offence. It is of interpretative character.
Section 149 creates specific offence. It is merely declaratory of the principle of joint liability.
(7) Under section 34 the emphasis in respect of physical act and mental state
( i . e . , the State of mind at the time of commission of crime) is divided and is placed
both on the group committing the offence as well as upon the individuals constituting
that group.
Under section 149 the entire emphasis both in respect of physical act as well as mental state
is placed on the unlawful assembly.
(8) Under section 34 the individual offender is associated with the criminal act
both physically and mentally. He is a sharer both in criminal act and the common
intention in furtherance of which the criminal act was done.
Under section 149 an individual is punishable only because of his being a member of the
unlawful assembly at the time of commission of the offence by any member of the unlawful
assembly. He may not have committed the offence.
35. When such an act is criminal by reason of its being done with a criminal knowledge or intention. —
Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is
done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for
the act in the same manner as if the act were done by him alone with that knowledge or intention.
COMMENT
If several persons, having (he same criminal intention or knowledge jointly
murder, each one would be liable for the offence as if he had done (he act alone; hul
if several persons join in act, each having a different intention or knowledge from the
others, each is liable according to his own criminal intention or knowledge. If an act,
which is an offence in itself and without reference to any criminal knowledge or
intention on the part of the doer, is done by several persons each of them is liable for
I he offence. Where a number of persons join in an act which is criminal only by reason
of its being done with a certain knowledge or intention, each person is liable for the act
to the extent of his knowledge or intention. 1 In Adam A H Taluqdar,1 A and B beat C
who died. A intended to murder him and knew that the act would cause death. B only
intended to cause grievous hurl and did not know his act would cause death or such
bodily injury as was likely to cause death. A was held guilty of murder and B of
causing grievous hurt. In Gliurey;' it was held that if an assault is made with a sharp
edged or'piercing weapon or with fire arms, the assailants may be presumed to know
that the result of the causing of injury with such weapons will very likely be death and
in case death actually occurs, everyone of the persons concerned in the fact would be
guilty of murder.____________
1. Adam Ali Taluqdar, A.I.R. 1927 Cal. 324.
2. Ibid.
3. A.I.R. 1949 All. 770.
36. Effect caused partly by act and partly by omission.—Whenever the causing of a
certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence,
it is to be understood that the causing of that effect partly by an act and partly by an omission
is the same offence.
Illustration
A intentionally causes Z's death partly by illegally omitting to give Z food, and partly by beating Z. A
has committed murder.
COMMENT
Section 32 provides that act includes an illegal omission also. It means the legal consequence
of an illegal omission will be the same as that of an act. Therefore, if an offence is committed partly
by an act and partly by an illegal omission, the consequences would be the same as if the offence
was committed by an 'act' or by an 'omission' alone.
37. Co-operation by doing one of several acts constituting an offence.—When an offence
is committed by means of several acts, whoever, intentionally co-operates in the commission of
that offence by doing any one of those acts, either singly or jointly with any other person,
commits that offence.
Illustrations
(a) A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B
administer the poison according to the agreement with intent to murder Z. Z dies from the effects of the several
doses of poison so administered to him. Here A and B intentionally co-operate in the commission of murder and
as each of them does an act by which the death is caused, they are both guilty of the offence though their acts are
separate.
(b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternately for six hours at a time. A
and 15, intending to cause Z's death, knowingly co-operate in causing (hat affect by illegally omitting, each
during the time of his attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger.
Both A and B are guilty of the murder (if- Z.
(e) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z's death illegally (units to supply Z
with food, in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause
his death. A is dismissed from his office and B succeeds him. B, without collusion or co-operation with A,
illegally omits to supply Z with food, knowing that he is likely thereby to cause Z's death, Z dies of hunger. B is
guilty of murder, but, as A did not co-operate with B, A is guilty only of an attempt to commit murder.
COMMENT
Where several acts arc done so as to result together in the commission of an offence, the
doing of anyone of them, with an intention to co-operate in the offence which may not be the same
as an intention common to all, makes the actor liable to be punished for the commission of the
offence.1 In Binglev's case" several persons combined to forge an instrument, each executing by
himself a distinct part of the forgery, and all of them were not present when the instrument was
completed. It was held that all of them were guilty of forgery as principals.
Distinction between S. 34 and S. 37.—Section 34 applies when a criminal act is done by
several persons in furtherance of the common intention of all. Section 37 deals with intentional co-
operation in the offence which has resulted from several acts, each of which standing by itself is not
the offence with which the accused are charged. Therefore, the latter section will have no
application to a case in which the accused are charged with causing simple and grievous hurt by use
of lathis because it cannot be said that there were several acts which resulted in the offence.3
38. Persons concerned in criminal act may be guilty of different offences.—Where several
persons are engaged or concerned in the commission of a criminal act, they may be guilty of
different offences by means of that Act.
1. Harendra Kumar Ghosh. (1924) 52 I.A. 40.

2. (1X21) Russ & R.Y. 446.
3. Makka. 1952 Cri. L..I. 797.
Illustration
A attacks Z under such circumstances of grave provocation that his killing of Z would be only
culpable homicide not amounting to murder. B, having ill-will towards Z and intending to kill him, and
not having been subject to the provocation, assists A in killing Z. Here though A and B are both engaged
in causing Z's death, B is guilty of murder, and A is guilty only of culpable homicide.
COMMENT
Sections 34, 35 and 38 deal with the same subject and should be read together. Section 34
deals with acts done with a common intention and section 38 deals with acts done with different
intentions. The basic principle underlying sections 32 to 38 is that in certain circumstances an entire
act is attributed to a person who may have done only a part of it. Section 34 is based on this
principle wherein emphasis is on the act. As pointed out in Barendra Kumar Ghosh v. Emperor?
section 38 provides for different punishments for different offences as an alternative to one
punishment for one offence, whether the persons engaged or concerned in the commission of a
criminal act are set in motion by the one intention or by the other. This section provides that persons
engaged in the commission of one act may be guilty of different offences owing to the difference in
their intention. In Indar,2 'X' and 'Y' on one side and 'Z' on the other quarreled together. Z abused X
whereupon X struck Z with a stick and Y struck him down with an axe on the head. Z also received
two other wounds with the axe on some other parts of the body. Any one of the three axe wounds
was sufficient to cause death more especially the one on the head. It was held that Y was guilty of
culpable homicide and X was guilty of voluntarily causing hurt.
In Bhaba Nanda v. State of Assam? three accused assaulted the victim, out of them two used
their weapons and the manner in which they gave blows clearly showed their intention to kill the
victim. The third accused did not use his lathi for causing injuries to the victim. The two accused
were held liable for murder and the third accused was held guilty under section 304 Part II as he had
intentionally joined in the commission of the act with the knowledge that the assault on the victim
was likely to result in his death, and that he never had intention to commit murder.
39. "Voluntarily".—A person is said to cause an effect "voluntarily" when he causes it by means
whereby he intended to cause it, or by means which, a^fhe time of employing those means, he knew or
had reason to believe to be likely to cause it.
Illustration -
A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery
and thus causes the death of a person. Here, A may not have intended to cause death, and may even be
sorry that death has been caused by his act, yet, if he knew that he was likely to cause death, he has
caused death voluntarily.
COMMENT
Ingredients.—A person is said to cause an effect voluntarily if :
(i) he causes it by means whereby he intended to cause it; or
(ii) he causes it by means which, at the time of employing those
means, he knew to be likely to cause it; or
(iii) he causes it by means which, at the time of employing those
means, he had reasons to believe to be likely to cause it.
This section defines 'voluntarily' in relation to 'causing of an effect' and not to the doing of
1. (1924) 52 I.A. 40.

2. (1882) 2 A.W.N. 23; See also Mallappa Shivappa, (1961) 2 Cr. L.J. 515.
3. A.I.R. 1977 S.C. 2252.
an act which results in certain effect. The Code makes no distinction between cases in which
a man causes an effect designedly and those where he causes it knowingly or having reason
to believe that he is likely to cause it.
If the effect is a probable consequence of the means, it is said to be voluntarily caused
whether he really meant to cause it or not. It was held in Ram Rup,1 that an act or omission is
voluntary, if it might have been avoided by the exercise of reasonable care and therefore, a
negligent act or omission is willed because the person at fault does not will to prevent commission
or omission.
40. "Offence."—Except in the chapters and sections mentioned in clauses 2 and 3 of
this section, the word "offence" denotes a thing made punishable by this Code.
In Chapter IV, Chapter V-A and in the following sections, namely, sections 64, 65, 66, 67, 71, 109,
110, 112, 114, 115, 116, 117, 2[18, 119 and 120,] 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225,
327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under
the Code or under any special or local law as hereinafter defined.
And in sections 141, 176, 177, 201, 212, 216 and 441, the word "offence" has the same meaning
when the thing punishable under the special or local law is punishable under such law with imprisonment
for a term of six months or upwards, whether with or without fine.
COMMENT
There are three clauses in this section each having a set of meaning of word "offence".
According to clause 1 offence means a thing made punishable by the Code. Punishable means that
the commission or omission of the act the commission or omission of which is prohibited, renders
the person who commits or omits it liable to punishment. 3 This clause is limited to the commissions
or omissions under the Code only and not under other special or local laws.
Clause 2 makes certain acts, punishable under local or special law, an offence within the
meaning of the Code. Clause 3 also defines offence in relation to special or local law for certain
purposes in some special circumstances only. Paragraphs 2 and 3 are exception to Para 1. In the
sections specified in Paras 2 and 3 and subject to the conditions and limitations contained in Paras 2
and 3, an act or omission punishable under a special or local law will also be an offence within the
meaning of this section.
41. "Special I MW ".—A "special law" is a law applicable to a particular subject.
COMMENT
Special law is a law relating to some special subject; e.g. Opium Act, Railways Act, Public
Gambling Act and Cattle Trespass Act etc. Special laws make punishable certain acts which are not
already punishable under the Penal Code.
42. "Local Law".—A "local law" is a law applicable only to a particular part of India.
COMMENT
Local laws are laws applicable to a part of territory or a particular locality e.g. Port Trust
Acts.
43. "Illegal" : "Legally bound to do".—The word "illegal" is applicable to everything
which is an offence or which is prohibited by law, or which furnishes ground for a civil action ;
and a person is said to be "legally bound to do" whatever it is illegal in him to omit.
COMMENT
This section defines the word 'illegal' and 'legally bound to do'. Illegal means :
(i) a thing which is an offence; or
1. (1950) 3 Punj. 192.
2. Inserted by the Information Technology (Amendment) Act, 2008 (10 of 2009).
3. Per Dulhoit, J., in Kandhaia, (1884) 7 All. 67 at 71.
(ii) a thing which is prohibited by law; or

(iii) a thing which furnishes ground for a civil action.
The word 'illegal' has a very wide meaning. It includes a tort as well as a breach of contract
which furnishes ground for civil action, that is to say in respect of which damages could be obtained
under section 73 of the Contract Act or which could be enforced specifically. 1 The words 'illegal'
and 'unlawful' have the same meaning. 2 Omission to perform the duty required by law such as to
provide food, clothing, shelter or medical aid to one to whom the duty is owed, would be illegal, but
not the refusal to perform acts of charity not coupled with a legalduty. 3 In Appayya,4 the accused
submitted to his superior officers a false "nil return" about the land in his enjoyment. He also made
a false statement to the same effect in a revenue inquiry. It was held that no offence was committed
as the act of the accused was not illegal.
44. "Injury".—The word "injury" denotes any harm whatsoever illegally caused to any person, in body,
mind, reputation or property.
COMMENT
Injury has the following elements :
(1) Causing of any harm to any person.
(2) Such harm should have been caused illegally.
(3) Harm may relate to body, mind, reputation or property.
Injury is thus given a very wide meaning and is not limited only to physical injury or
pecuniary damage but extends also to injury to mind or reputation. Death of husband has in one
case been held to be an injury to the woman 5 and in another as not.6 The loss of husband affects a
woman prejudicially if not so much physically then at least mentally and should therefore, be
treated as an injury to the widow. A false charge made before the Police though never intended to
be prosecuted in a court, constitutes an injury. 7 in Habile-ul-Razza,* the accused took away the
catties of complainant and refused to release them until he was paid a certain sum and on the receipt
of that sum he released them. It was held that the accused caused injury to the complainant. So also
threat to use process of law for the purposes of enforcing payment of an amount more than is due is
illegal and therefore such a threat is injury.9
Social boycott by a group of those who refuse to co-operate with them does not amount to an injury within the meaning of this section. Where the barbers and
washermen decide not to serve those who do not provide them better agricultural facilities and therefore boycott those of their own community who do not support their call,
the boycott would not be an injury. So also the threat given by them to deprive certain persons of the services of barber and washermen would also not constitute an injury
punishable under section 506 of the Code.1"
1. Ganpat, (1934) 36 Bom. L.R. 373.

2. Fazlur Rahman. (1929) 9 Pat. 725.
3. Om Prakash Tilak Chand, 1959 Cr. L.J. 368.
..- 4. Appayya, (1861) 14 Mad. 484.
5. SaifAli, (1898) PR. No. 17 of 1898 (Punjab Chief Court).
6. Yalta Gangula v. Mamidi Dali, (1897) 21 Mad. 74 (F.B.).
7. AshrofAli, (1879) 5 Cal. 281.
8. (1923) 46 All. 81.
9. B. Appalasami, (1892) I Weir 441.
1.0. Selathu, (1948) 2 M.L.J. 522.
45. "Life".—The word "life" denotes the life of a human being, unless the contrary ^ftars from the
context.
46. "Death".—The word "death" denotes the death of a human being unless the aatrary appears from
the context.
47. "Animal".—The word "animal" denotes any living creature other than a human
COMMENT
The correctness of the definition of animal under this section is doubtful ■ because if animal
means any living creature other than a human being, it would then include an angel, frog, spawn
and probably a tree.
48. "Vessel".—The word "vessel" denotes anything made for the conveyance by water of human beings
or of property.
49. "Year", "month".—Wherever the word "year" or the word "month" is used, it is to be understood
that the year or the month is to be reckoned according to the British calender.
50. "Section".—The word "section" denotes one of those portions of a chapter of this Code which are
distinguished by prefixed numeral figures.
51. "Oath."—The word "oath" includes a solemn affirmation substituted by law for an oath, and any
declaration required or authorised by law to be made before a public servant or to be used for the
purpose of proof, whether in a Court of Justice or not.
COMMENT
An oath is a religious asseveration, by which a person renounces the mercy, and imprecates
the vengeance of heaven, if he does not speak the truth. 1 The form of oath differs according to
religion of the swearer. A Hindu or a Mohammedan has the statutory right of affirmation instead of
taking an oath.
52. "Good faith".—Nothing is said to be done or believed in "good faith" which is done
or believed without due care and attention.
COMMENT
The definition of good faith in this section is a negative one. It says that an act is said to be
done in good faith if it is done with the due care and attention. It has been held in Bux Soo Meah
Chowdhry v. The King,2 that absence of good faith means simply carelessness or negligence. If an
opinion is expressed with due care and attention, honestly believing it to be true and without
malicious motive it is said to have been made in good faith. 3 The General Clauses Act, 1897 defines
good faith as follows—"A thing shall be deemed to be done in good faith where it is in fact done
honestly, whether it is done negligently or not."
It was held by the Supreme Court in H. Singh v. State,4 that the element of honesty in the
definition of 'good faith' which is introduced by the definition of this term as given in the General
Clauses Act, is not introduced by the definition of the Code.
Good faith in the sense of simple and actual belief is not sufficient, the belief must be
reasonable, and not an absurd belief. That is, there must be some reasonable ground for believing a
thing, then only the belief would be said to be in good faith. A belief in order to be reasonable
requires care and attention relating to the matter in question. Where a man is charged with the duties
of certain office, requiring skill or care and the question arises whether in the discharge of his
functions he has acted in good faith or not, he must show not only good intention but such care and
skill as the duty reasonably demands for its due discharge. 1 The degree of requisite care varies with
1. White, (1786) I Leach 430.

2. A.I.R. 1938 Rang 350.
3. Debajyoli Barman, (1957) 2 Cal. 181.
4. A.I.R. 1966 S.C. 97.
the degree of danger which may result from the want of care. Good faith does not mean logical
infallibility, but due care and attention.
The question of good faith must be considered with reference to the position of the person
whose good faith is in question and the circumstances under which he acted. The law does not
expect the same degree of care apd attention from all persons irrespective of the position they
occupy.2 It varies in different cases3 and is considered with reference to the general circumstances
and the capacity and intelligence of the accused.4 Due care and attention implies genuine effort to
reach the truth and not the ready acceptance of an ill natured belief.
The standard of due care and attention is the standard of the man whose conduct is on trial
and not of a reasonable man. Good faith depends upon three factors :
(i) the nature of the act done by the accused;
(ii) magnitude and importance of the act done; and
(iii) the facility a person has for the exercise of care and attention.
In Sunderlal v. Emperor,5 the warrant of attachment instead of being signed
by the Collector was signed by the Deputy Collector and Treasury Officer. The Amin acted upon
the warrant. It was held that so for as the Amin was concerned the warrant appeared to him to be
valid and the Amin acted in good faith. But in Raghbir's case6 the Amin proceeded to attach a
person's property when the period fixed in the warrant of attachment has expired. It was held that
the Amin did not act in good faith.
In Prag's case7 an Assistant Collector authorised S, an Amin, to execute warrant of
attachment of property in the process of realising arrears of land revenue. S endorsed on warrant his
inability to execute it and sent it back to tehsil. The Naib Tehsildar, instead of returning it to the
Assistant Collector ordered another Amin to execute the warrant and on his own initiative asked for
police heIP. In the process certain catties were attached and on this some fight took place between
the executing officials and the accused persons, the claimants of the cattle. It was held that may be
that the executing party acted with best of intentions and may have in fact believed even to have
been entitled to act but if the Naib Tehsildar had examined the warrants, he would have seen that
only S named in the warrant was authorised to execute it and if he had considered the matter even
for a moment he must have realised that it was not within his power to authorise any other Amin to
execute it. Therefore he was held not to have acted in good faith i.e., with due care and attention.
In Shimbhu Narain} the accused who was an educated person living in a town where medical
attendance was available, chained up his brother, who was suffering from periodical fits of violent
insanity, for over three months in an unnecessarily cruel manner. It was held that the accused did
not act with due care and attention inasmuch as he did not avail of the medical care, instead
1. Gayadin, (1934) 9 Luck. 517.
2. Bliawaojivaji v. Mulji Dayal, (1888) 12 Bom. 377 at 393.
3. Po Mye, (1940) Ran. 109.
A.Âbdul Wadood, (1907) 9 Bom. L.R. 230; Yadali v. Gaya Singh, (1929) 57 Cal. 843. 5.1(1933)
Cr. L.J. 218.
6. 1933 O.W.N. 67.
7. A.I.R. 1942 Oudh. 256.
8. (1923) 45 All. 495.
hastened to subject the victim to undue cruelty.

In Sukaroo Kabiraj v. Empress,1 a Kabiraj, uneducated in science of surgery, his knowledge
being based on practical experience only, operated on a man for internal piles by cutting them out
with an ordinary knife. The man died from haemorrhage. It was held that he had not acted in good
faith although he had performed similar operations on previous occasions.
In Hayat case2 the accused believed that a stooping child whom he caught sight of in the
early gloaming was a spirit or demon. The child was in a place which the accused and his fellow
villagers deemed to be haunted. The accused, acting on this belief, caused the death of the child by
blows he inflicted before he discovered his mistake. It was held that the accused was guilty of an
offence under section 304-A for causing death by negligence. His defence of mistake of fact in
good faith was not accepted. No doubt he acted under a mistaken belief but he did not in good faith
believe himself justified in doing the act because he did not act with due care and attention.
52-A. "Harbour".—Except in section 157 and in section 130 in the case in which the harbour is
given by the wife or husband of the person harboured, the word "harbour" includes the supplying a
person with shelter, food, drink, money, clothes, arms, ammunition, or means of conveyance or the
assisting a person by any means, whether of the same kind as those enumerated in this section or not to
evade apprehension.
COMMENT
The word 'harbour' has been included in the Code as section 52A by an Amendment in the
year 1942. Before that it was defined by section 216B of the Code. While the meaning attached to
the word 'harbour' has been retained in essence, it has been introduced in an amended form. The
definition is inclusive. Ordinarily harbour means providing any kind of assistance with a view to
evade arrest. The law relating to meanings attached to this word as it existed prior to the
amendment was not vary clear because of conflicting and contrary views expressed by different
High Courts. The amendment as such had become necessary to clarify the point. Harbour means :
(i) the supplying a person with shelter, food, drink, money, clothes,
arms, ammunition or means of conveyance, or
(ii) the assisting a person by any means, whether of the same kind
as those enumerated above in this section or not,
(iii) such supplying or assisting must be with a view to evade
apprehension.
Harbour under this section does not include harbour under section 157, and under section 130
of the Code where it is given by the wife or husband of the person harboured.
1. (1887) 14 Cal. 566.

2. (1887) P.R. No. 11 of 1888; See also Ram Baliadur Thapa, A.I.R. 1960 Cut. 88.
CHAPTER III OF
PUNISHMENTS
53. "Punishments".—The punishments to which offenders are liable under the provisions of tins Code
are :
Firstly.—Death ;
Secondly.—Imprisonment for life. Thirdly.
— (Rep.)
Fourthly.—Imprisonment, which is of two descriptions, namely :—
(1) Rigorous, that is, with hard labour ;
(2) Simple.
Fifthly.—Forfeiture of property. Sixthly.—
Fine.
COMMENT
This section enumerates various kinds of punishments to which the offenders are liable
under the Penal Code. This section is not exhaustive in so far as the kinds of punishments are
concerned because some other punishment may be imposed under some local and special law.
These punishments are applicable to offences under this Code only. Generally the Code lays down
the maximum punishment that can be imposed for an offence. There are some exceptions to this.
The punishment in a particular case shall, within the maximum limits fixed by the Code, be
awarded in the discretion of the court. But the discretion should exhibit that a reasonable proportion
has been maintained between the seriousness of the crime and the punishment imposed. The
sentence should neither be disproportionately severe nor should it be too lenient so as to fail to
serve its purpose in producing effect on the offender and as an eye opener to others.1
Considering various aspects of the case and the mitigating circumstances present, if any, the
Court can reduce the quantum of punishment. For example, where the accused is a Government
servant losing service consequent on conviction and is likely to lose pensionary benefits, sentence
may be reduced to period he has already undergone. 2 Similarly age of the accused may also be
taken into consideration in mitigation of the punishment. Where the accused was only 17 years old
when offence was committed, sentence of death may be commuted to life imprisonment in
consideration of his extreme young age.3
In State of Punjab v. Mann Singh,4 it was held that it was the duty of the Court in every case
to award a proper sentence having regard to the nature of the offence, the manner in which it was
committed and to all the attendant circumstances.
While passing sentence the Court has to consider the totality of factors bearing, on the
offence and the offender and award a punishment which will promote effectively the punitive
objective of the law deterrence and habilitation.5 Sentencing is always a matter of judicial discretion
subject to any mandatory
1. Kapur Singh, 1953 Cr. L.J. 1261.
2. K. Duraiswamy v. State of Tamil Nadu, 1982 Cr. L.J. 626 (S.C).
3. Ujjagar Singh v. Union of India, 1981 Cr. L.J. 1690 (S.C).
4. 1983 Cr. L.J. 229 (S.C).
5. Ashok Kumar v. State, 1980 Cr. L.J. 444 (S.C).
1 s
f " *
minimum prescribed by law.1
Death Sentence.—It was held in Kishori v. State of Delhi,2 that capital punishment can be
imposed in the rarest of the rare cases and if there are any aggravating circumstances such as the
accused having any criminal record in the past, the manner of the committing the crime, delay in
imposing the sentence and so on. In this case the riot brokeout in Delhi after assassination of Prime
Minister Smt. Indira Gandhi and her death appears to be the symbol or web around which the
violent emotions were released. Experts in criminology often express that when there is a collective
action, as in the case of a mob, there is a diminished individual responsibility unless there are
special circumstances to indicate that a particular individual had acted with any predetermination
such as by use of a weapon not normally found. If, however, a member of such a crowd picks up an
article or a weapon which is close by and joins the mob, either on his own volition or at the
instigation of the mob responding to the exhortation of the mob playing no role of leadership, then
such a person did not intend to commit all the acts which a mob would commit if left to himself,
but did so under the influence of active fury.
Nature of Punishment.—Punishment is the suffering in person or property inflicted by the
society on the offender who is adjudged guilty of crime under the law. According to some it is the
retribution due for the violation of the rules of the tsociety which are made for its preservation and
peace and the infraction of which is made punishable. The administration of punishment involves
the intention to produce some kind of pain which may be partly physical and partly mental. The
amount of pain actually experienced by the offender will vary from case to case depending on the
circumstances and the personality of the offender. But it is indisputable that some pain in some
form is always felt in punishment.
Prof. Hart defines punishment in terms of the following five elements3—
(i) It must involve pain or other consequences normally considered
unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be of an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human beings other than
the offender.
(v) It must be imposed and administered by an authority constituted
by a legal system against which the offence is committed.
The nature of punishment is, in part, determined by reference to its purposes and function.
The nature of punishment can be drawn with reference to the following characteristics4 :
(1) Punishment is a privation (evil, pain, disvalue).
(2) Punishment is coercive.
(3) Punishment is inflicted in the name of the State; it is authorised.
(1) Punishment presupposes rules, their violations and a more or less formal
determination of that, expressed in a judgment.
(2) Punishment is inflicted upon an offender who has committed a harm and this
presupposes a set of values by reference to which both the
1. R. Chakravarty v. State of M.P., 1976 Cr. L.J. 334.
2. 1999 Cr. L.J. 584 (S.C).
3. Hart, H.L.A.; Punishment and Responsibility, pp. 4-5.
4. Hall, Jerome; General Principles of Criminal Law (2nd ed.) p. 310.
harm and the punishment are ethically significant.

(6) The extent or the type of punishment is in some defended way related to the
commission of a harm, e.g., proportionately to the gravity of the harm, and aggravated or
mitigated by reference to the personality of the offender, his motives and temptation.
In sum, punishment is for the transgression of rules; and it is inflicted by legally authorised
persons.1 Certain modern correctionists hold that punishment is an unmitigated "absolute" evil.
Plato regarded it as having instrumental value, as a necessary cure, no more evil than the bitter
medicine which a physician might administer. 2 Punishment is good since it is corrective, deterrent
and necessary for the public welfare.
According to Bentham punishment is an empirical question of desire and of the infliction of
sufficient pain to provide an effective deterrent.3 And so according to him the offender's temptation
—not his moral culpability or the gravity of the harm—determined the nature and extent of
punishment. In his opinion there is no substantive difference between punishment and
compensation and that all sanctions are punitive. In sum punishment is a coercive deprivation
intimately applied to an offender because of his voluntary commission of a harm forbidden by
penal law and implying his moral culpability.4 THEORIES OF PUNISHMENT
Various theories are advocated to explain the purposes of punishment, namely : (1)
retributive, (2) deterrent, (3) preventive, (4) expiatory and (5) reformative. Expiatory is one
peculiar to Hindu Jurisprudence alone.
(1) Retributive theory.—The origin of retributive theory lies in the primitive notion of
vengeance against the wrong-doer. Punishment satisfies the feeling of revenge. In olden times,
when a man injured another, it was the right of the injured person to take revenge on the person
causing injury. In those days an eye for eye and a tooth for tooth was considered to be the law. The
reason is that then the act, which is not termed as a crime, was considered as a private wrong. Most
of the criminal proceedings were initiated by injured person and not by the State. Kant says that
justification of punishment lies in the fact that evil has been done by him who suffers it.
In modern times retribution is used in more than one sense. In the first sense the idea is that
of satisfaction by the State of the wronged individual's desire to be avenged; in the second it is that
of the States marking its disapproval of the breaking of its laws by a punishment proportionate to
the gravity of the offence. In rbodern penological thought retribution is not so much considered in
the sense of vengeance but in the sense of reprobation. The report of the Royal Commission on
capital punishment emphasis that punishment must not be greater than the Ap&nce deserves.
Retribution is also used by some people in the sense of expiation or atonement. According to them
the offender must suffer some evil not in order to satisfy an aggrieved individual's desire for
revenge, nor as a mark of public disapproval of his conduct but for his own sake so that he may
come to realise the justice of his punishment.
The revenge theory has been criticised by Sheldon Glueck who says that it is natural that we
hate criminals, but to base a policy of social protection upon the hatred of those who commit such
1. Hobbes, Leviathan Ch. 28, reprinted in Vol. 23, 'Great Books of the Western World' 145, (1952).
2. Quoted in Hall, Jerome; General Principles of Criminal Law (2nd ed.) p. 311.
3. Bentham, Rationale of Punishment 29 (1830).
4. Hall, Jerome; General Principles of Criminal Law (2nd ed) p. 318.
act is both uneconomical and unjust. 1 On the contrary Stephen justified punishment on the ground
of hatred and he says that hating the criminal is morally right. In his opinion : "Criminal law stands
to the passion of revenge in much the same relation as marriage to the sexual appetite." 2
Aschenffenburg suggests that a man happens to be a criminal due to circumstances, "chance and
causes" and therefore "he needs to be disciplined". Once he suffers the penalty he is lost for ever
and the State is deprived of a useful, perhaps a necessary member. 3 Dr. H.S. Gour agreeing with
Plato observes that both personal and public sentiments demand that the person who has made
others to suffer unjustly should himself be made to suffer. 4 Whatever may be the merit or demerit
of the theory of vengeance or retribution as the purpose of punishment there can be no doubt, as
Bentham suggests, that revenge is sweet even to modern man.5
Retributive theory considers punishment as an end in itself although the modern trend of
penologists is to regard punishment as a means to an end and not an end in itself. Some forms of
the retributive theory emphasise that punishment should be inflicted not merely in order to attain
certain ends, but solely because the prisoner has committed a crime/' Prof. J.D. Mabbott, while
rejecting the traditional retributive theory presents his own theory of retribution. In his opinion the
only justification for punishing any man is that he has broken a law. He treats punishment as a
purely legal matter. The connection on which he insists is that "between punishment and crime, not
between punishment and moral or social wrong".
He rejects the traditional retributive theories on the following grounds7—
(1) Punishment implies that some one is legally authorised to impose it upon
offenders;
(2) No more than do the reformative and deterrent theories can the traditional
retributive ones account for the serious objections to retroactive penal legislation.
(3) None of the other theories can account for punishment imposed by an official
who disapproves the law which he is enforcing. The fact that rule was violated makes
punishment proper.
(4) His theory escapes the retributionists' difficulty of measuring moral wrong and
equating punishment with it.
According to retributive theory moral blameworthiness of the offender is the basis of
punishment The main defect of this theory is that it does not regard punishment as a measure of
1. 41 H.L.R. 543, Insanity and Criminal Law, pp. 13-14.
2. Stephen, History of Criminal Law, Vol. II, pp. 81-82.
3. Oppenheimer, Rationale of Punishment, p. 252.
4. H.S. Gour; Penal Law of India (4th ed.) p. 331.
6. Paton, Jurisprudence (3rd ed.) p. 321.
7. Mabbott, Punishment 48 Mind fN.S.) 152 (1939).
social security and welfare but considers punishment ,as an end in itself. It neglects the utilitarian
aspect of punishment. Salmond says : i"It is scarcely needful to observe that, from the utilitarian
point of view hitherto taken up by us, such a conception of retributive punishment is totally
inadmissible. Punishment is in itself an evil and can be justified only as the means of attaining a
greater good. Retribution is in itself not a remedy for the mischief of the offence but an aggravation
of it."1
Punishment may be looked at from two different aspects. It can be regarded as a method of
protecting society by reducing the occurrence of criminal behaviour or it can be considered as an
end in itself. In modern times it is the former aspect which is being emphasised because social
welfare is considered to be of paramount importance. Ethical approach to crime which is the main
basis of retributive theory is gradually losing ground in modern times.
(2) Deterrent theory.—The purpose of the punishment is to deter the criminal from
committing crime in future and to set an example that others also who will commit crime will be
punished likewise. By punishing the wrong-doer an example is set that those who will violate the
law will incur the risk of punishment. The idea is that punishment will thus curb the criminal
activities of the prospective offenders. In olden times severe punishments and public executions
were held mainly with the object to deter others and to set an example that violation of law will be
punished. Punishment serves as a deterrence in two ways. It creates fear in the mind of the wrong-
doer and deters him from committing crime in future and it also deters other prospective criminals
from committing crime. The chief purpose of punishment is the protection and maintenance of
individuals interest in the society by deterring the evil minded persons.
In many cases we find that punishment has failed to achieve the object aimed at because
many criminals appear before the Magistrates repeatedly. As far as its effect on general public is
concerned it cannot be denied that it has proved insufficient to check the crime to the desired
extent. However, it cannot at the same time be denied that fear plays some part in arresting the
crime rate. It certainly works in case of those persons who are weak and vacillating. Deterrent as an
aim of punishment, though it has lost much of its former importance, cannot be said to be entirely
eliminated from the policy of modem court of criminal jurisdiction. 2 Bentham also agrees that
general prevention ought to be the chief object of punishment and its real justification.3
If punishment really serves as a deterrent then severe punishment is justified because it would
create greater fear but we find that even more severe punishments have failed to eliminate crimes.
This theory does not prescribe any measure of punishment which will serve as effective deterrence.
Therefore, Holmes criticises this theory of being immoral inasmuch as the measure of punishment
is based on the law-givers subjective opinion.4
It is true that deterrence as one of the purposes of punishment has been very widely recognised since early times, but the punishment does not have that effect in
all-the cases. In many cases offences are committed under the heat of passion or extreme excitement, or provocation, where the offender loses his mental balance and
commits the offence without applying his mind to the consequences. In these cases the punishment hardly works as a deterrent. Secondly, when the offender is once
punished, the punishment, to a certain extent, loses its rigour for him and once an offender undergoes imprisonment, he is no longer afraid of it to the same degree as he was
before he served his first term. Thus the punishment has little deterrent effect upon the offender who has suffered the penalty.
(3) Preventive theory.—According to this theory the purpose of

punishment is to serve as a preventive measure in commission of crimes. The
fear of punishment prevents the prospective law breaker from violating the law.
1. Saimond, Jurisprudence.
3. Ibid.
4.. Holmes, Common Law, pp. 42-43.
The object of punishment is protection of public by prevention of crime. The

preventive object of criminal justice is stressed by punishing preliminary crimes
like abetment, conspiracy and attempt etc. The purpose of punishment is the
compelling of person to cease or refrain from committing crime, by forcing or
persuading them to conform to the established rules of conduct designed for the
protection of government, of life, of property and of other rights, privileges and
immunities guaranteed by law.1 Salmond too appears to have emphasised the
preventive purpose of punishment, when he says that we hang murderers not
merely that it may put into the hearts of others like them the fear of a like fate,
but for the same reason for which we kill snakes, namely, because it is better
for us that they should be out of the world than in it. The preventive theory
concentrates on the prisoner, but seeks to prevent him offending again in the
future.
In ancient times the offender was prevented from crime again by disabling him permanently.
For example, the punishment for theft was cutting of the hand of the offender. The most effective
kind of punishment is the death penalty. It is awarded only in serious offences like murder and
treason. These offences are considered to be most serious and their repetition as most dangerous for
the society. Therefore, death penalty is considered to be the appropriate punishment for such
offences.
In modern times some other measures of prevention are also applied, such as forfeiture of
office, suspension and cancellation of licenses for dealing in goods or driving etc. Apart from them
some other preventive measures are also adopted in our country against those who threaten to
commit offences or who are otherwise dangerous to the society. These measures are : preventive
detention, security for keeping peace and security for keeping good behaviour. But the preventive
measures provided by the Criminal Procedure Code are in one way different in so far as their
nature is not punitive.
Prevention as a purpose of punishment does not seem to be very convincing and does not
work very successfully in checking crime. Persons committing crime under extraordinary
psychological stress seldom repeat the crime. To punish a man who commits a crime under such a
pressure would be meaningless. On the other hand punishment has a demoralising effect upon him
and after suffering the sentence he becomes fearless and shameless and may possibly be turned into
a professional. Every man enjoys his own reputation and is conscious enough to protect it. Once he
chances to commit a crime and is punished, he finds that his social reputation has been affected and
this makes him feel free to repeat the crime because no more he considers himself to be respected
by the society.
(4) Expiatory theory.—This theory is also known as theory of penance.
According to this theory, punishment is necessary for the purification of the
offender. It is a kind of expiation or penance for the misdeeds of a person. Manu
says : "Men who are guilty of crimes, when condemned by the King become
I. Miller, Handbook of Criminal Law, p. 19.
pure and go to heaven in the same way as good and virtuous men go". Men undergo punishment so
that the wrong done by them may be expiated. In view of Hindu Jurists expiation or penance
washes away the sin.
In modern times expiation theory is accepted in a modified form and is considered by some
to be a part of the tetributive theory. Fry observes that punishment should be in order to "adjust the
suffering to the sin,' some maintain that the offender becomes purified either by beating or by
scourging2 while others say that it is the purification not of the individual alone but of the humanity
as a whole.3 Thus Kohler treats suffering {i.e. punishment) as the antidote of one's misdeeds.
Salmond too appears to support this theory when he agrees that punishment blots out crime. 4 "To
suffer punishment is to pay a debt due to the law that has been violated," maintains Salmond.
That being the obvious purpose of the punishment, suffering must be equal to the guilt if it
were to wipe it out. It is difficult to work out this theory successfully in so far as it is difficult to
ascertain an equivalent of guilt in terms of suffering. It is impossible to weigh the guilt in that fine
scale of suffering. Pointing out to this aspect of the problem arising out of the working of this
theory Holmes, J., observes—
"The criminal's upbringing, his material and social circumstances, the personal championship, his
physical and mental conditions, his weakness and strength of will, the accidental incidents which
are so decisive in determining human action, the degree of temptation—how can even the wisest
of us measure these various elements? It requires infinite understanding and a virtue that
is super-human. Who dare attempt it?"5 The second difficulty with regard to this theory is that
suffering cannot be standardised even though it were possible to judge crimes according to moral
scale no equivalent of punishment would be prepared in terms of suffering. The effect to the same
punishment may vary upon two different accused. To one it may amount to torture while to the
other it may be like a child's play. The external conduct of the wrong-doer which led to the
commission of crime cannot be measured. Thus the above theory is not sound because it is out of
men's capacity to work it out.
Expiation is akin to the idea of retribution. On this view crime is done away with or blotted
out by the suffering of its appointed penalty. Guilt plus punishment is equal to innocence. The first
object of punishment is to make satisfaction to outraged law. The penalty of wrong-doing is a debt
1. Blockway, A New Way with Crime, p. 15.
3: Ibid., 189.
4. Salmond, Jurisprudence (10th ed.) p. 112.
5. Holmes, Common Law, Ch. II
6. Salmond, Jurisprudence (12th ed.) pp. 99-100.
7. Ibid, at p. 100.
which the offender owes to his victim, and when the punishment has been endured the debt is paid,
the liability is extinguished, innocence is substituted for guilt. 6 The fact that in the expiatory theory
satisfaction is conceived as due rather to the outraged majesty of the law than to the victim of the
offence, merely marks a further stage in the refinement and the purification of the primitive
conception.7 Salmond calls this kind of satisfaction of debt as purely abstract payment which men
have no moral right to enforce.
(5) Reformative theory.—This theory is also known as corrective or rehabilitative theory.
Reformation means "the effort to restore a man to society as a better and wiser man and as a good
citizen."1 This theory endeavours to make the criminal harmless by supplying him those things
which he lacks and to cure him of those drawbacks which made him to commit crime. If a criminal
is morally regenerated his criminal tendencies also become, if not, extinct then at least less active.
Punishment has, for that reason, been defined as "a physical measure adopted to excite in the soul
of the guilty true repentance, respect for justice, sympathy for their fellow creatures and love of
mankind".2 By reformation of the criminal is meant his moral regeneration, and developing the
sense of honesty. A person who commits a crime and suffers punishment for that comes back to the
society and lives in along with his other fellow beings. Therefore punishment must aim at making a
man worthy of living in the society. The advocates of reformative theory aim at the rehabilitation
of the offender in the society. The reformative theory sees in the readjustment of the prisoner to the
demands of society the greatest need of the criminal. 3 It emphasises upon the study of the
psychology of the criminal and treats punishment as a means to a social end. A man is not a born
criminal. One commits a crime because he suffers from some disease. All sorts of criminal
behaviour is because of some personality defect which they treat a disease and like other diseases it
also needs cure. Therefore, criminal needs sympathy of the society and not punishment for his
misdeeds. What is required is psychological study of the causes of criminal behaviour and
suggesting means to cure him of the defects which led to the delinquent behaviour. Criminal is a
patient and deserves treatment for crime is the result of some disease with which the offender was
suffering. It treats punishment not an end in itself but as a means to an end. That end is the
correction or rehabilitation of the offender.
Reformative view is of doubtful utility in certain cases. First, there are persons who are
incurably bad. To them crime is a habit and they are beyond the reach of any reformative
programme. The protection of society demands at least a measure of disablement to restrain such
persons from further harmful activity. Secondly, if the offenders are kept in prisons very
comfortably, the prisons might turn into dwelling houses at least, for the poor and unemployed, and
may lose their utility to serve as effectual deterrent to those classes from which criminals are
chiefly drawn.4 Professor Hall poses another problem. He says, although involuntary incarceration
is a necessary condition of correction, whether it is possible to eliminate retribution entirely?
Whether corrective treatment is wholly free of punitive element? Also what does the advocates of
corrective treatment say about the incorrigible minor offenders such as pickpockets.5
This theory admits only such types of punishment which are educative and discipline the criminal, not those which inflict pain on the offender. In modem times
reformative measures are adopted in cases of juvenile offenders. In prison they are given some education and are subjected to some such prison programmes so that they
can learn some kind of work which may help them in earning their livelihood after coming out of the prison. The advocates of this theory emphasise that when the prisoner
goes to jail he finds himself quite cut off from the rest of the world. The confinement, the deprivation of social intercourse and other ways of subjection to rigid discipline
never allow him to develop his character. Therefore, what is important is the reformation of the offender by making him worthy of living in the society. Critics of this
1. Prison Commissioners Report 19)2, p. 24.

2. Oppenheimer Rationale of Punishment, p. 244.
3. Paton, Jurisprudence (3rd ed.), p. 320.
4. Salmond, Jurisprudence (12th ed.), p. 95.
5. Hall, Jerome; General Principles of Criminal Law (2nd ed.), p. 305.
theory maintain that if punishment is to be a punishment, it must be unpleasant, while a course of reformatory education is only accidentally unpleasant. We cannot put
remorse ready-made into a criminal mind, but we can stimulate it by giving him a pain akin to that of remorse, making him feel the indignation of impartial observers.1
Reformation only robs punishment of its sting. The criminal is looked upon as an object of pity, not of hatred and punishment becomes the work of charity.2
This theory works well in case of young offenders and some sexual offenders but has no
appreciable effect upon habitual, professional and hardened criminals. According to some
reformists the purpose of imprisonment was to prepare a man for release; hence, the length of
sentence should not be fixed but rather be determined by the rehabilitation of the man. The French
publicist Bonneville advocated a "conditional liberation" later known as parole as sort of mid-term
between an absolute pardon and the execution of the entire sentence, the right conceded by the
judiciary to release provisionally, after a sufficient period of expiatory suffering, a convict who
appears to be reformed, reserving the right to return him to prison, if there is against him any well-
founded complaint.
Another much emphasised reformatory movement was trade or industrial training, otherwise
known as productive labour. Its use as a rehabilitative device was elaborately emphasised by
Colonel Manual Montesinos who wrote : "The prison receives only the man; the crimes remains at
the gate." Criminals can be reformed through employment in a free community, where they are
subjected to ordinary temptations.
One more reformatory movement emphasises upon the provision for every kind of healthy
recreation practicable within an institution, especially for the reformatory age-group. Youths of this
age possess a super-abundance of energy, especially of sexual desire and impetus. One of the main
reasons for disciplinary problems in a reformatory has been that the normal outlets of sex impulses
are completely blocked and there has been no adequate provision for sublimating them through
other forms of activity.
Many more reformatory programmes have been suggested by reformists. The net result of a
good reformatory programme should be to concentrate the attention of the inmates upon the
opportunities for reform and training rather than upon the prospect of release or escape. These
programmes, of course, need to be extended and implemented by specialised professional
knowledge we have gained in certain fields such as physiology, psychology, psychiatry, sociology
and community work.
Critical Appraisal of various Theories
We have discussed above various theories regarding the purpose of punishment. We feel that
while each one of them has some value of its own, none of them is universally acceptable by the
penologists. If correction is espoused, retribution is damned as a vestige of man's instinctual past,
1. Turner, Canadian Bar Review, 1943, p. 91.
while deterrence is excluded as ineffective, rationalistic,, and even as a cause of crime. In official
circles, deterrence is vigorously supported as a necessary and potent defence of social values. There
is the integrative view as summed up by Hall,1 which is receiving wide support in which all types of
justification are combined in an inclusive theory.2 This theory implies that it is fallacious (a) to ask
only for what end is punishment imposed? because this automatically excludes the intrinsic value
of the relevant moral experience as well as the "vindication" of the law, 3 or (b) to assume that just
punishment does not contribute to reformation and deterrence.
Some advocates of the theory of correction criticise the "moralistic" theories of punishment,
but they too fail to answer for the harmful consequences and the need of imprisonment with hard
labour. In the opinion of Paton "today the usual legal approach is utilitarian, for it is recognised that
the law cannot attempt to carry out all the dictates of religion or morality, but can enforce only that
minimum standard of conduct without which social life would be impossible. The law must protect
society and its rules cannot be determined without reference to moral values. But the object of
criminal law is not to reform men's hearts but stamp out courses of conduct which either offend the
minimum ethics or are socially inexpedient. Punishment must be directed both to deterring others
from breaking the law and to readjusting the attitude of the offender to the demands of social life.
But even a utilitarian approach does not mean that we can ignore the inner springs of human
conduct, for punishment based on a real understanding of the mind of the particular criminal is
more likely to be effective than that which metes out the same punishment for the same acts
irrespective of the individuals character.4
Prof. Hall urges to the "pure retributinist", who sees only the intrinsic moral worth of the
public condemnation of attacks of human beings, that the elementary needs of survival require the
deterrence of potential harm doers.
Despite various difficulties it is now recognised that 'the prevention of crime' and 'the
protection of society' are ends asserted by everyone. It also seems to be widely agreed that
involuntary incarceration is punishment regardless of the kindness of the administrators or the
unexceptionable quality of the treatment programme.5 The inclusive theory has been gaining
ground in recent yearsrThis has resulted largely from the recognition that retribution has an
important part in any defensible theory, at least to the extent that punishment should be imposed
only on the guilty,6 and that there should be a fair proportion of punishment to the gravity of harm,
even when acknowledgment of that is made in factual terms of the traditional rating system.7
Whatever might be the relative utility or importance of a particular theory, no uniform, generally recognised and universal theory of punishment for all ages and
for all people exists.1 Therefore, whatever punishment might have been suitable in past may not be so in the present or whatever might be useful in one country may not be
so in another. Then again the same kind of punishment may not bring about the desired effect upon all types of criminals alike. In sum universalisation of punishment is
1. Hall, Jerome; General Principles of Criminal Law (2nd ed.) pp. 303-4.
2. Cf. Asquidi, The Problem of Punishment, The Listener, May 11, 1950 at 821.
3. Raddin, Natural Law and Natural Rights, 59 Yale L.J. 214, (1950) and Coddington; Problems of
Punishment, 46 Proc. Arist. Soc. (N.S.) 155 (1946).
4. Paton, Jurisprudence (3rd ed.) pp. 321-22.
6. Raphael, Justice and Liberty, 51 Proc. Arist. Soc. (N.S.) 167 (1951).
7. Andenaes, Choice of Punishment, pub. in 2 Scandinavian Studies in Law, 59-60 (1958).
impossible. Therefore, we have to study the criminal before prescribing the proper form of punishment to him according to his physical, social, educational or cultural
make-up because the same punishment may not suit all the criminals alike. Modern penologists, therefore, emphasise upon the individualisation of punishment although
they appear to be fully aware with the difficulties in its implementation.
CAPITAL PUNISHMENT
Capital punishment, whilst pretending to support reverence for human life does in fact, tend
to destroy it.2 Arguments are made both in favour and against the retention of capital sentence as a
form of punishment. Capital punishment is generally resorted to in serious offences like murder.
According to one view it is morally excluded and according to the other a moral necessity. But the
central question relates to the efficacy of death penalty in protesting human life.
In the beginning the death penalty rested primarily upon the effort to placate the Gods. The
complete blotting out of the culprit was a practical demonstration of group disapproval of the
particular type of anti-social conduct. Later with the rise of the metaphysical theories of human
conduct, the individual came to be looked upon as a moral agent capable of free choice in every
aspect of his conduct, irrespective of biological heredity or social environment. On these
assumptions the criminal was inevitably regarded as perverse free moral agent, who refused to
think right and who had wilfully chosen to do wrong and outrage his social group and the Gods.
This was revenge theory. The life of the individual who wilfully wronged the social group or
brought serious loss to anyone of its members therefore, deserved to be forfeited.3
Another purpose served by the death penalty is that it discourages to the utmost degree
criminal conduct on the part of those who are aware of the existence and horrors of the painful
mode of treating criminals. Death penalty is far more powerful and effective deterrent than life
imprisonment. Men fear death than imprisonment. So it is stronger deterrent. Some argue that death
penalty is something which morality demands as uniquely appropriate means of reprobation or
retribution for the worst crimes even if adds nothing to the protection of human life.
It serves as a unique deterrent to professional criminals. The alternative of imprisonment
gives rise to serious difficulties. It would be wrong to abolish death penalty unless there is a clearly
overwhelming public sentiment in favour of change.
The major attack on capital punishment is on moral grounds. The following are some of the
arguments against it :—
(1) None of the various methods "sed in executing criminals is absolutely free from
pain or torture.
(2) Far worse than the physical pain is the mental torture experienced by the
condemned man waiting in the death house for reprieve which is
1. Von Holtzen Droff, Aschefeinburg, Crime and Repression, p. 250.
2. John-Bright, Quoted in Arthur, Koestler, Reflections on Hanging, New York, Macmillan, 1957.
3. Barnes & Teeters, "New Horizons in Criminology" (3rd ed.) pp. 314-315.
generally granted very late.
(3) The poignant suffering experienced by the family and friends of those to be
executed is another shocking phenomenon too little appreciated by the public. The infamy
connected w-th the execution can never be eradicated from the memory of the victims. The
children, mothers, wives, and other close relatives are suddenly confronted with an
overwhelming life crisis that is out of proportion to the wrong committed by the criminal.
(4) Many countries in Europe and America have abolished capital punishment,
although most of them with some qualifications. This is enough proof that society can
control criminal activity, even without resorting to this extreme type of punishment.1
(5) Death penalty does not have the effective deterrence to the desired extent upon
the criminals who commit murder as a result of psychopathic compulsions or in fits of rage
or those who are of defective personality or upon professional gunmen. Such a criminal
realises that his chances of being apprehended and punished are inevitably slight and even
though convicted may be pardoned.2
(6) The present defective police, detective and court systems bring about a situation
in which much less than half of those guilty of murder are even arrested, while a large
proportion of those arrested are unjustly freed through the inefficiency of the court and the
trial system. There can be no doubt that a murderer would be more seriously deterred by the
absolute certainty of relatively mild punishment than by a one-in-ten chance of having the
death penalty inflicted on him.3
(7) Some have suggested that if one desired to make death penalty most effective as
a deterring influence, it would be desirable to make a great public spectacle of it and carry it
out under the most brutal and degrading circumstances. But history shows that even most
severe forms of capital punishment, publicly administered, have slight or no deterrent
influence.4
(8) Capital punishment is more expensive than the high cost of maintaining
prisoners, even for long terms, in institutions.5
(9) Some of the sentimental objections to capital punishment are that it is against
the spirit of humanity, it brutalises the human intellect or that God alone has the right to take
human life.
In our country under Code ol Criminal Procedure, i»y8 death sentence was a rule and life
imprisonment an exception in capital offences and whenever the court preferred to award a
sentence lesser than death in such offences it w.-'s required under section 367(5) of the Criminal
Procedure Code to record its reasons in writing. Later on by an amendment in the year 1955 section
367(5) of the Cr. P. Code, 1898 was omitted and thus thereafter the courts became free to award
either death sentence or life imprisonment. In 1962 the question of abolition of death penalty was
referred to the Law Commission. The Commission in its 35th Report did not favour its abolition.
Now the Code of Criminal
Procedure, 1973 in its section 354(3) provides that in case of death sentence special reasons are to
1. Banes & Teeterss, "New Horizons in Criminology" (3rd ed.) p. 312.
2. Ibid, at p. 317.
3. Ibid, at p. 318,
4. Ibid, at p. 318.
5. Ibid, at p. 319.
be stated. Now imprisonment for murder is the rule and capital sentence an exception. In case of
death sentence the court is required to state the reasons which justify its imposition as against the
life imprisonment.1
It would be useful to examine in brief the attitude of the Indian Supreme Court towards this
problem. In Jagmohan Singh v. State of U.P.? it was argued that death penalty was unconstitutional
and hence invalid as a mode of punishment. It was contended that the freedoms guaranteed under
Art. 19 of the Constitution cannot be co-extensive with the Legislature prescribing the punishment
of death as a restriction on the fundamental freedoms. The right to live which is basic to the
enjoyments of freedoms within the permissible constitutional limits, cannot be understood to co-
exist with that legislative injunction which has the character of destroying the life. Therefore, any
legislative attempt on the destruction of life cannot be deemed to be reasonable restriction on the
right to life implicitly found in the fundamental freedoms. Another ground of attack was that
discretion to impose death sentence was not based on any standard of policy, and it thus suffered
from the vice of excessive delegation of legislative power. Since the courts have unguided
discretion to impose death penalty or even lesser punishment for the offence of murder, it violated
the equal protection clause embodied in Art. 14 of the Constitution. Further in the absence of any
procedure established by law in the matter of sentence, the protection given in Art. 21 of the
Constitution was also violated.'
The Supreme. Court did not agree with any of the above contentions and held the death
penalty as valid. The deprivation of life is constitutionally permissible if that is done according to
1Balwant Singh v. State of Punjab, 1976 Cr. L.J. 291.

the procedure established by law. It would be difficult to say that capital sentence per se is
unreasonable or is not in the public interest.
The question of retention or abolition of capital punishment is a controversial one but the
Supreme Court of India has been consistently favouring the retention of death penalty especially in
cases of premeditated, brutal and cold blooded murders.
In Mohinder Singh v. Delhi Administration? the appellant being dissatisfied with the award
made by the arbitration regarding distribution of wages between him and his other partner, killed
the arbitrator. The medical report revealed that nearly sixteen injuries were found on the dead body
of the deceased which in the ordinary course would have been sufficient to cause the death of a
person.
It was held by the Supreme Court that the number of injuries inflicted on the body of the
deceased show that the appellant had acted with violence and brutality on an unarmed and
defenceless person. The various injuries on the hands and palms of the deceased indicate that the
latter must have been desperately trying to save his wife by attempting to ward off the blows with
his hands. All these circumstances clearly show that murder committed by the appellant was brutal
in nature. Under the circumstances, the award of death sentence was perfectly justified.
Rameshwar and another v. State of U.P.? is another case wherein the
2. 1973 Cr. L.J. 370.

3. 1973 Cr. L.J. 610. 4.'
1973 Cr. L.J. 940.
importance of retaining the death penalty, particularly in those cases where the prohibition of grave
conduct like murder is defied thoughtlessly, was emphasised. In this case the Supreme Court did
not hesitate to punish an old man with death, who acted in a high-handed and cruel manner to take
the life on a slight provocation.
On the other hand Mr. Justice Krishna Iyer pleading for abolition of this barbaric relic of the
past observed "Since every saint had a past and every sinner a future, never wright off the man
wearing the criminal veneer attire but remove the dangerous degeneracy in him, restore his retarded
human potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the
repressive, though hidden, injustice of the social order which is vicariously guilty of the criminal
behaviour of many innocent convicts".
Perhaps, therefore, recent trends in public sentiments against capital punishment represent
the broader realisation that correction is more important to society than punishment.
In Rajendra Prasad v. State of U.P.,1 the Supreme Court has observed that capital sentence
may be awarded where survival of the society is in danger. The Court has expressed its fear that
judicial discretion given in awarding death sentence may turn out in judicial tyranny and thus
violate Art. 14 of the Constitution. Therefore the Court has laid down guidelines. In its opinion
section 302 IP. Code and section 354(3) Cr. P. Code, 1973 have to be read in the humane light of
Part III and Part IV of the Constitution, further illuminated by the preamble of the Constitution.
Death sentence may be awarded in case of planned motivation, to white collar criminals, persons
guilty of adulteration etc., hardened murderer beyond rehabilitation or where officers of law are
killed by designers of murder. Further special reasons stated by the court in awarding death penalty
must relate to criminal as well and not to crime alone.
In Bachan Singh v. State of Punjab,1 the Supreme Court while upholding the validity of the
death penalty expressed the opinion that a real and abiding concern for the dignity of human life
postulates resistance to taking a life through laws instrumentality. That ought not to be done save in
the rarest of rare cases when the alternative option is unquestionably foreclosed. The aggravating
circumstances which justify the award of death penalty have been summed up as follows :
(a) If the murder has been committed after previous planning and involves extreme
brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or of a
member of any police force or of any public servant and was committed—-
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done
by such member or public servant in the lawful discharge of his duty
as such member or public servant as the case may be, or has ceased
to be such member or public servant; or
(d) If the murder is of a person who acted in the lawful discharge
of his duty under section 43 of Cr. P. Code, 1973, or who had rendered
1. 1979 Cr. L.J. 792.
2. 1980 Cr. L.J. 636 (S.C).
an assistance to a magistrate or a police officer demanding his aid or requesting his

assistance under sections 37 and 129 of the Code. However, some of the mitigating
circumstances which do not justify award of death penalty may be summed up as follows :
—
(a) where the offence is committed under the influence of extreme mental or
emotional disturbance;
(b) where the accused is young or old;
(c) the probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society;
(d) the probability that the accused can be reformed and rehabilitated. But the State
shall, by evidence, prove that the accused does not satisfy
the condition in clauses (c) and (d) above.
The question as to what are the rarest of the rare cases justifying death penalty lies in the
discretion of the judges. Therefore, this rule has led to an inner conflict in the minds of the judges.
In Machhi Singh v. State of Punjab,1 the Supreme Court has held that the motive for, or the manner
of commission of the crime, or the anti-social or abhorrent nature of the crime are some of the
relevant considerations to justify death penalty. These considerations have been summed up as
follows :—
1. Manner of commission of murder.—When the murder is committed
in an extremely brutal or dastardly manner so as to arouse intense and extreme
indignation of the community. For instance :
(i) when the house of the victim is set aflame with the end in view
to roast him alive in the house;
(ii) when the victim is subjected to inhuman acts of torture or cruelty
in order to bring about his or her death;
(iii) when the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.
2. Motive for commission of murder.—When the murder is committed for a motive which
evinces total depravity and meanness. For instance, murder committed by hired assassin for sake of
money or reward, cold blooded murder with a deliberate design in order to inherit property or a
murder in the course for betrayal of the motherland.
3. Anti-social or socially abhorrent nature of the crime.—When murder of a member of
a Scheduled Caste or minority community is committed in circumstances which arouse social
wrath. For instance, murder committed with a view to terrorise and frighten them into fleeing from
a place or dowry-deaths and bride burning etc.
4. Magnitude of crime.—When the crime is enormous in proportion. For instance, when
murder of almost all members of a family or a large number of persons of a particular caste,
community or locality are committed.
5. Personality of victim of murder.—When the victim of murder is an innocent child, a
helpless woman or a person rendered helpless by old age or infirmity or a public figure.
The above are only illustrative cases indicating a guideline for the application of the
principle of rarest of the rare rule.,
1. 1983 Cr. L.J. 1457 (S.C).

In Kailash Kaur v. State of Punjab} the Supreme Court held that whenever a case of
gruesome murder of a young wife by the barbaric process of pouring kerosene oil on the body and
setting her on fire as the culmination of a long process of physical and mental harassment for
extraction of dowry comes before the court and the offence is brought home to the accused beyond
reasonable doubt, it is the duty of the Court to deal with it in most severe and strict manner and
award the maximum penalty prescribed by the law in order that it may operate as a deterrent to
other persons from committing such anti-social crimes.
Public Hanging.—Execution of death sentence by public hanging is barbaric and violative of
Article 21 of the Constitution even if any Jail Manual provides for public hanging. 2 It would be
unconstitutional.
Conclusion.—In view of the judicial decisions discussed above the Indian position with
regard to capital punishment may be summed up as follows :—
(1) Capital punishment does not offend Articles 14, 19 and 21 of the Indian
Constitution and is therefore, not unconstitutional. But death may be awarded only in
exceptional cases were the collective conscience of the community treats it abhorrent. At the
same time there should not be unreasonable delay in execution of death sentence.
(2) Keeping in view the conditions prevailing in the Indian society and the increase
in criminality the time is not yet ripe to justify abolition of death penalty.
Therefore, the growing complexities of criminal behaviour in the Indian society, their effect
on economic structure and social life lead to the conclusion that retention of capital punishment
would serve greater social good. However, the courts while deciding the question of sentence must
take into consideration not only the crime committed but the criminal as well, the motives behind
the crime, the victim of the crime and the effect of crime on community conscience.
Delay in execution.—Another question relating to death penalty is the effect, of prolonged
delay in execution of the sentence. In TV. Vatheeswaran v. State of Tamil Nadu} the Supreme
Court held that prolonged detention to await the execution of a sentence of death is an unjust,
unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of
death and to commute it into life imprisonment. Delay exceeding two years in the execution of a
sentence of death should be considered sufficient to entitle the person to invoke Article 21 of the
Constitution. It is submitted that the object motivating the above view must have been to ensure
speedy execution of death sentence so as to save the prisoner from mental torture. Speedy
execution is part of Article 21 of the Constitution. But, there are chances of abuse of the above rule
by resorting to frivolous proceeding in order to delay its implementation. The Supreme Court,
therefore, in Sher Singh v. State of Punjab} realising the chances of its abuse, revised its opinion
and held that delay in execution of death sentence exceeding two years by itself does not entitle a
person under sentence of death to demand quashing the sentence and converting it into sentence of
life imprisonment. It may not be proper to have a rule to that effect but unreasonable delay may be
taken into consideration in mitigation of the punishment.
In Javed Ahmed v. State of Maharashtra} the appellant had been convicted of multiple
murders. He killed his sister-in-law, his little niece aged about three years, his baby nephew aged 1-
1/2 years and a child servant aged about 8 years. The motive for the murder was gain.
1. 1987 Cri. L.J. 1127 (S.C).

2. Attorney General of India v. Lachma Devi, 1986 Cri. L.J. 364 (S.C).
3. 1983 Cri. L.J. 481 (S.C).
4. 1983 Cri. L.J. 803 (S.C).
5. 1983 Cri. L.J. 960 (S.C).
He chose to kill them on a night when his brother was away. He had caused multiple injuries. The Supreme
Court declined to interfere with sentence of death, though the accused was 22 years of age and the case rested
upon circumstantial evidence. In the opinion of the court commutation of death sentence into life imprisonment
would be stultifying the course of law and justice. This was held to be the "rarest of rare" cases. In the above
case a petition for review and a petition for clemency were rejected. Thereafter a writ petition under Article 32
was filed praying for commutation of death sentence to imprisonment for life. In this petition he had frankly
confessed the dastardly crimes committed by him. Thus in view of the above facts in Javed Ahmed v. State of
Maharashtra? it was held that in view of delay in execution of death sentence of more than 2 years, tender age
of 22 years, and showing genuine repentance by the petitioner, he could invoke the aid of Article 21 of the
Constitution and was entitled to commutation of death sentence into life imprisonment.
In Triveniben v. State of Gujarat' the Supreme Court overruling its earlier decision in T.V.
Vatheeswaran v. State of Tamil Nadu? held that undue long delay in execution of the sentence of death will
entitle the condemned person to approach the Supreme Court under Art. 32 but the Court will only examine the
nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process
but will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the
sentence of death. The Court may, however, consider the question of inordinate delay in the light of all
circumstances of the case to decide whether the execution of sentence should be carried out or should be altered
into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable.
Life Imprisonment.—In its ordinary connotation imprisonment for life means imprisonment for whole
of the remaining period of the convicted persons natural life. The various State Jail Manuals refer to the life
imprisonment being of a definite period. But without any formal remission by any appropriate government life
imprisonment cannot be treated for a definite period.4 This view has been reiterated by the Supreme Court in
State of M.P. v. Ratan Singh? and Abdul Azad v. State? In Abdul Azad case it was further observed that if any
remission in sentence is granted by the government, the prisoner would be entitled to set-off his period of
detention undergone by him during the period of investigation, inquiry or trial. A review of the various
provisions and judicial pronouncements would lead to the following propositions :—
(1) A sentence of imprisonment for life means a sentence for the entire remaining life of the
accused unless the sentence is remitted by the appropriate government either in whole or in part. A life
sentence does not automatically expire at the end of twenty years.
(2) The State, where the prisoner has been convicted and sentenced, alone has power to remit
the sentence.
(3) The remission of sentence under the rules framed under Prison Acts or Jail Manuals are
mere administrative directions for the administration of jails and prisons, and cannot supersede the
statutory provision of the Code.7
In Zahid Hussain v. State of West Bengal? the Supreme Court reiterated its earlier view that a sentence
of imprisonment for life does not automatically expire at the end of 20 years of imprisonment including
remission, as a sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the
appropriate Government chooses to exercise its discretion to remit either the whole or part of the sentence.
In Bishanr Singh v. State of Punjab? the Court held that having regard to peculiar facts and circumstances of
1. 1984 Cri. L.J. 1909 (S.C).

2. 1989 Cri. L.J. 870 (S.C).
3. 1983 Cri. L.J. 481 (S.C).
4. G.V. Godse v. Tlie State, A.I.R. 1961 S.C. 600; see also Kishori Lai v. K.E., 72 Ind. App. 1.
5. 1976 Cri. L.J. 1192.
6. 1976 Cri. L.J. 315.
7. State of M.P. v. Ratan Singh, 1976 Cri. L.J. 1192.
8. 2001 Cri. L.J. 1692 (S.C).
9. 1983 Cri. L.J. 973 (S.C).
case, if the case cannot be termed as rarest of rare cases, death sentence imposed on the accused may be
commuted to imprisonment for life.
Where a person commits a heinous crime like murder because of very special circumstances like
poverty, he cannot be punished with death sentence.
In State of U.P. v. M.K. Anthony? the accused killed his ailing wife as he could not provide money for
operation. He also killed his two children as they would be neglected after their mother. It was held that
imprisonment for life was justified and not capital punishment because crime was committed out of poverty and
was not actuated by any lust, vengeance or gain.
It was held in Md. Munna v. Union of India,' that life imprisonment is not equivalent to imprisonment
for fourteen years or for twenty years.
There is no provision either in the Indian Penal Code or in the Code of Criminal Procedure whereby life
imprisonment could be treated as fourteen years or twenty-years without there being a formal remission by the
appropriate Government. Section 57 of the Penal Code providing that imprisonment for life shall be reckoned
as equivalent to imprisonment for 20 years is applicable for the purpose of remission when the matter is
considered by the Government under the appropriate provisions.
It was further pointed out that imprisonment for life is to be treated as "rigorous imprisonment for life".
The sentence of imprisonment for life was substituted for transportation. Transportation to overseas penal
settlements implied hard labour for the concerned convicts and the punishment of deportation beyond seas was
considered to be the most dreaded punishment. Section 17 of the Andaman and Nicobar Jail Mannual
specifically says that transportation entails hard labour and strict discipline with only such food as is necessary
for health and mitigation of the above is an indulgence which at any time could be withdrawn in whole or in
part. It is therefore, difficult to understand how such a punishment could be deemed to have been substituted by
simple imprisonment for life.
Rigorous Imprisonment.—In State of Gujarat v. Hon'ble High Court of Gujarat? it was held by the
Supreme Court that imposition of hard labour on prisoners undergoing rigorous imprisonment was legal. In this
case Justice Thomas has observed that it is said that hard labour imposed on the proved offenders would have a
deterrent effect against others from committing crimes and thus the society would, to that extent, be protected
from perpetrating crimes by others. Reformation is now the dominant objective of punishment. Hence an
assurance to a prisoner that his hard labour would eventually snowball into a handsome saving for his own
rehabilitation would help him to get stripped of the moroseness and desperation in his mind while toiling with
rigours of hard labour during the period of jail life. Thus reformation and rehabilitation of a. prisoner are of
great public policy. Hence they serve a public purpose. Therefore a directive from the Court under the authority
of law to subject a convicted person (who was sentenced to rigorous imprisonment) to compulsory manual
labour gets legal protection under exemption provided in clause (2) of Art. 23 of the Constitution because it
serves a public purpose.
While Justice D.R Wadhwa has observed that putting a prisoner to hard labour while he is undergoing
sentence of rigorous imprisonment awarded to him by a Court of competent jurisdiction cannot be equated with
'begar' or other similar forms of 'forced labour' and there is no violation of clause (1) of Article 23 of the
Constitution. Clause (2) of Article 23 has no application in such a case.
It was further observed by the Court that it is imperative that the prisoner should be paid equitable
wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners
the State concerned shall constitute a wage fixation body for making recommendations. Court directed each
State to do so as early as possible. Until the State Government takes any decision on such recommendations
every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government
concerned fixes in the light of observations made above. For this purpose all the State Governments are directed
to fix the rate of such interim wages within six weeks.1
53-A. Construction of reference to transportation.—(1) Subject to the provisions of sub-section (2)
1. 1985 Cri. L.J. 483
(S.C).
2. 2005 Cri. L.J. 4124
(S.C).
and sub-section (3), any reference to "transportation for life" in any other law for the time being in force
or in apy instrument or order having effect by virtue of any such law or of any enactment repealed shall
be construed as a reference to "imprisonment for life".
(2) In every case in which a sentence of transportation for a term has been passed before the
commencement of the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), the offender
shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term.
(3) Any reference to transportation for a term or to transportation for any shorter term (by
whatever name called) in any other law for the time being in force shall be deemed to have been omitted.
(4) Any reference to "transportation" in any other law for the time being in force, shall—
(a) if the expression means transportation for life, be construed as a reference to
imprisonment for life;
(b) if the expression means transportation for any shorter term, 'be deemed to have been
omitted'.
COMMENT
After introduction of this section in 1955 'transportation' as a sentence has been done away
with as a punishment.
At the time the Indian Penal Code was enacted transportation meant transporting a criminal
beyond the seas. It was a punishment lesser than death in gravity. During the British rule in India
such prisoners who were awarded transportation were generally sent to the Andaman Nicobar
Islands. The practice of transporting criminals had been defended by criminologists because it
eliminated those criminals from the population who were beyond reformation and thus this type of
punishment served as an effective means of deterring prospective criminals. It is undoubtedly one
of the vestiges of an out moded correctional philosophy and was one of the most repulsive phases
of human activity in dealing with criminals.2
In Kishori Lai v. Emperor? the Privy Council observed that a sentence of transportation did not
necessarily mean a sentence of transportation beyond the sea. However, during the- British period
such prisoners were generally sent to the Andaman Nicobar Island.
It was held by the Supreme Court in Gopal Vinayak Godse v. State of Maharashtra? that a
person sentenced to transportation for life or any other term, before the enactment of the impugned
section (i.e. Section 53-A) was to be treated as a person sentenced to rigorous imprisonment for life
or for a lesser period as the case might be.
In Naib Singh v. State of Punjab? it was held that sub-section (2) read with sub-section (1)
of section 53-A of the IP. Code affords a clear indication by necessary implication that a sentence
of "imprisonment for life" must be regarded as equivalent to "rigorous imprisonment for life". It
was further held that in the absence of an order of commutation passed by the State Government
either under section 55 of the IP. Code or section 433(b) of the Cr. P. Code, the convict cannot be
released forthwith even after expiry of 14 years.
54. Commutation of sentence of death.—In every case in which sentence of death shall be passed,
the appropriate Government may, without the consent of the offender, commute the punishment for any
other punishment provided by this Code.
1. A.I.R. 1998 S.C. 3164.

2. K.D. Gaur, The Indian Penal Code, 77.
3. A.I.R. 1945 P.C. 64.
4. A.I.R. 1961 S.C. 602.
5. 1983 Cr. L.J. 1345 (SC.).
55. Commutation of sentence of imprisonment for life.—In every case in which sentence
mt imprisonment for Jife shall have been passed, the appropriate Government may, without the
consent of the offender, commute the punishment for imprisonment of either description for a
term not exceeding fourteen years.
55-A. Definition of "appropriate Government".—In sections 54 and 55 the expression "appropriate
Government" means—
(a) in cases where the sentence is a sentence of death or is for an offence against any law
relating to a matter to which the executive power of the Union extends, the Central Government; and
(b) in cases where the sentence (whether of death or not), is for an offence against any law
relating to a matter to which the executive power of the State extends, the Government of the State
within which the offender is sentenced.
56. Omitted.
57. Fractions of terms of punishment.—In calculating fractions of terms of punishment, imprisonment for life
shall be reckoned as equivalent to imprisonment for twenty years.
COMMENT
Only for calculating fractions of terms of punishment 'imprisonment for life' shall be reckoned as
equivalent to imprisonment for twenty years.1 But otherwise the sentence of imprisonment for life is of
indefinite duration. The instances of cases where fractions of terms of punishment have to be calculated are to
be found in sections 116 and 511 of this Code. This section has to be read in these contexts. 2
It was held in Subhash Chander v. Krishan Lai? that section 57 of Indian Penal Code provides that in
calculating fractions of terms of punishment of imprisonment for life shall be reckoned as equivalent to
imprisonment for 20 years. It does not say that the transportation for life shall be deemed to be for 20 years. The
position at law is that unless the life imprisonment is commuted or remitted by appropriate authority under the
relevant provisions of law applicable in the case, a prisoner sentenced to life imprisonment is bound in law to
serve the life term in prison.
58. (Omitted).
59. (Omitted).
60. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple.—In every case in
which an offender is punishable with imprisonment which may be of either description, it shall be competent to
the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly
rigorous, or that such imprisonment shall be wholly simple or that any part of such imprisonment shall be
rigorous and the rest simple.
61. (Omitted).
62. (Omitted).
63. Amount of fino—Where no sum is expressed to which a fine may extend, the amount of fine to which the
offender is liable is unlimited, but shall not be excessive.
64. Sentence of imprisonment for non-payment of fine.—In every case of an offence punishable with
imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without
imprisonment,
and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the
offender is sentenced to a fine,
it shall be competent to the Court which sentences such offender to direct by the sentence that, in default
of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be
in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a
commutation of a sentence.
COMMENT
This section provides for the award of punishment in default of payment of fine in all cases
in which line can be imposed. This section is only permissive and not imperative in character.
65. Limit to imprisonment for non-payment of fine when imprisonment and fine
1. Gopal, (1961) 63 Bom. L.R. 517 (S.C).
2. Basappa Mudakappa. A.I.R. 1959 Mys. 115.
3. 2001 Cr. L.J. 1825 (S.C).
awardable.—The term for which the Court directs the offender to be imprisoned in default of
payment of a fine shall not exceed one-fourth of the term of imprisonment which is the
maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.
COMMENT
This section applies to all cases where the offence is punishable with imprisonment and fine,
or with imprisonment or fine. It does not apply to cases where fine only can be awarded.
66. Description of imprisonment for non-payment of fine.—The imprisonment which the
Court imposes in default of payment of fine may be of any description to which the offender
might have been sentenced for the offence.
COMMENT
If the offence is punishable with simple or rigorous imprisonment, the additional
imprisonment in default of payment of fine shall also be simple or rigorous as the case may be.
67. Imprisonment for non-payment of fine, when offence punishable with fine only.—If
the offence be punishable with fine only, the imprisonment which the court imposes in default
of payment of the fine shall be simple, and the term for which the Court directs the offender
to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is
to say, for any term not exceeding two months when the amount of the fine shall not exceed
fifty rupees, and for any term not exceeding four months, when the amount shall not exceed
one hundred rupees, and for any term not exceeding six months in any other case.
COMMENT
This section provides for the maximum term of imprisonment which can be awarded in
default of a fine where fine is the only punishment for the offence. The scale of imprisonment
prescribed in this section refers to fines actually imposed and not to the maximum fine admissible
for the offence.
68. Imprisonment to terminate on payment of fine.—The imprisonment which is imposed in default of
payment of a fine shall terminate whenever that fine is either paid or levied by process of law.
69. Termination of imprisonment on payment of proportional part of fine.—If, before the expiration of
the term of imprisonment fixed in default of payment such a proportion of the fine be paid or levied that the
term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still
unpaid, the imprisonment shall terminate.
Illustration
A is sentenced to a fine of one hundred rupees and to four months, imprisonment in default of payment.
Here, if seventy-five rupees of. the fine be paid or levied before the expiration of one month of the
imprisonment, A will be discharged as soon as the first month has expired. If seventy five rupees be paid or
levied at the time of the expiration of the first month, or at any later time while A continues in imprisonment, A
will be immediately discharged. If fifty rupees of the fine be paid or levied before the expiration of two months
of the imprisonment, A will be discharged as soon as the two months are completed. If fifty rupees be paid or
levied at the time of the expiration of those two months or at any later time, while A continues in imprisonment,
A will be immediately discharged.
70. Fine leviable within six years or during imprisonment—Death not to discharge
property from liability.—The fine, or any part thereof which remains unpaid may be levied at
any time within six years after the passing of the sentence, and if, under the sentence, the
offender be liable to imprisonment for a longer period than six years, then at any time previous
to the expiration of that period ; and the death of the offender does not discharge from the
liability any property which would, after his death, be legally liable for his debts.
COMMENT
Imprisonment in default of fine does not liberate the offender from his liability to pay the
full amount of fine imposed on him. Imprisonment in default of payment of fine is not a discharge
or satisfaction of the fine but is imposed as a punishment for a non-payment of fine. The offender is
not permitted to
S. 71 ] OF PUNISHMENTS 113
choose whether he will suffer the sentence of imprisonment or pay the fine. The only effect of his
suffering the imprisonment in default of payment of fine shall be that his person shall cease to be
answerable for the fine. But his property shall not be absolved i.e., the fine can be satisfied from his
property. The period of limitation for realisation of fine shall ordinarily be six years. No fine can be
realised by sale of property of the offender after expiry of six years. 1 The limitation starts^ from the
date of passing of the sentence of conviction by the trial Court and not from the date of dismissal of
the appeal or revision.2 The bar of six years may save the property of the offender but not his
personal arrest. The liability for any sentence of imprisonment awarded in default of payment of
fine continues even after expiration of six years. 3 The death of the offender does not extinguish any
liability for fine. It can be recovered from any property, which would, after his death, be legally
liable for his debts.4 To 'levy'-- means to seize for the purpose of collecting the fine or to enforce
execution for a certain sum. It does not mean actual realisation.5
71. Limit of punishment of offence made up of several offences.—Where anything which is an offence
is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the
punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the
time being by which offences are defined or punished, or
where several acts, of which one or more than one would by itself or themselves constitute an offence,
constitute, when combined, a different offence.
the offender shall not be punished with a more severe punishment than the Court which tries him could
award for any one of such offences.
Illustrations
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to
Z by the whole, beating, and also by each of the blows which make up the whole beating. If A were liable to
punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to
one punishment for the whole beating.
(b) But, if, while A is beating Z, Y interferes, and A intentionally strikes Y, here as the blow given to Y is no
part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt
to Z, and to another for the blow given to Y.
COMMENT
This section governs the whole Code and regulates the punishment in cases in which the
greater offence is made up of two or more minor offences. It consists of four parts. Para 1 says that
where an offence is made up of parts, each of which constitutes an offence, the offender shall not
be punished for more than one offence, unless expressly provided. Paras 2 and 4 read together
would mean that where an offence falls within two or more separate definitions of offences the
offender should not be punished with a more severe punishment than the court which tries him
could award for any of such offences. Paras 3 and 5 taken together provide that when several acts,
of which one or more than one would, by itself or themselves, constitute an offence, constitute,
when combined, a different offence, the offender should not be punished with a more severe
punishment than the court which tries him could award for any of such offences.
This section corresponds to section 220 of the Code of Criminal Procedure, 1973. There is
some difference between the provisions of the two Codes.
72. Punishment of person guilty of one of several offences, the judgment stating that it
1. Collector of Broach v. Ochhavlal Bhikalal, A.I.R. 1941 Bom. 147.
2. Palakdhari Singh, A.I.R. 1962 S.C. 207.
3. Garni Sakharam, (1884) Unrep. Cr. C. 207.
4. Sita Ram, (1937) 13 Luck. 306.
5. Ramaswamy, (1962) 64 Bom. L.R. 440.
is doubtful of which.—In all cases in which judgment is given that a person is guilty of one
of several offences specified in the judgment but that it is doubtful of which of these offences
he is guilty, the offender shall be punished for the offence for which the lowest punishment is
provided if the same punishment is not provided for all.
COMMENT
In this section provision is made for punishment in those cases where the actual facts proved
show the commission of one of several offences but it is doubtful as to which of the offences, the
accused is guilty.
73. Solitary confinement.—Whenever any person is convicted of an offence for which
under this Code the Court has power to sentence him to rigorous imprisonment, the Court
may, by its sentence, order that the offender shall be kept in solitary confinement for any
portion or portions of the imprisonment to which he is sentenced not exceeding three months
in the whole, according to the following scale, that is to say—
a time not exceeding one month if the term of imprisonment shall not exceed six months ; a time not exceeding
two months if the term of imprisonment shall exceed six months and shall not exceed one year ;
a time not exceeding three months if the term of imprisonment shall exceed one year.
COMMENT
S. 71 ] OF PUNISHMENTS 114
This section lays down the scale according to which solitary confinement may be imposed.
The conditions for the application of this section are :
(i) a person must have been convicted for an offence under this Code,
and
(ii) the offence must be one for which the court has power to
sentence the accused to rigorous imprisonment.
It is an enabling provision. It gives power to a court to pass a sentence of solitary
confinement as a part of the substantive term of rigorous imprisonment. It also prescribes the
maximum period for which solitary confinement may be imposed.
Solitary confinement means keeping the prisoner isolated from any kind Of intercourse with
the outside world. It is inflicted in order that a feeling of loneliness may exert wholesome influence
and reform the criminal. It cannot be inflicted for\the whole term of imprisonment. 1 It should be
very rarely exercised in most exceptional cases of unparallel atrocity or brutality.2
74. Limit of solitary confinement.—In executing a sentence of solitary confinement, such
confinement shall in no case exceed fourteen days at a time, with intervals between the periods
of solitary confinement of not less duration than such periods; and when the imprisonment
awarded shall exceed three months, the solitary confinement shall not exceed seven days in
any one month of the whole imprisonment awarded, with intervals between the periods of
solitary confinment of not less duration than such periods.
COMMENT
This section deals with the limit of solitary confinement in executing a sentence. It provides
that solitary confinement must be imposed at intervals because if it is continued for a long time it is
sure to produce mental derangement. A sentence inflicting solitary confinement for the whole
imprisonment is illegal, though not more than 14 days is awarded.3
75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous
1. Nayan Suk Mether, (1869) 3 Beng. L.R. 49.
2. Munuswamy, A.I.R. 1948 Mad. 359.
3. Nayan Suk Mother. (1869) 3 Beng. L.R. 49.
conviction.— Whoever, having been convicted,
by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this Code with
imprisonment of either description for a term of three years or upwards,
* - * * *
shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the
like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of
either description for a term which may extend to ten years.
COMMENT
This section provides for enhanced punishment to an offender with previous conviction. For
the application of this section three conditions are necessary :
(1) The offence must be one under either Chapter XII or XVII of the Code.
(2) The previous conviction must have been for an offence therein punishable with
imprisonment for not less than 3 years. It is not necessary that the punishment actually
awarded for the first offence should be imprisonment for three years.
(3) The subsequent offence must also be punishable with imprisonment for not less
than 3 years.
(4) The previous conviction must be by a Court in India. Attempt,—This section
does not apply to cases of attempts not specifically
made offences in Chapters XII and XVII of the Code 1; nor to cases of offences which fall under
Section 511 of this Code.2
Abetment.—The previous conviction of an accused for an offence under Chapter XII and XVII cannot be taken into consideration at a subsequent conviction for
abetment of an offence under those chapters for the purpose of enhancing punishment.3
1. Sricltaran Sauri, (1887) 14 Cal. 357.

2. Chhedi, A.I.R. 1942 All. 889.
3. Kashia Antoo, (1907) 10 Bom. L.R. 26.
CHAPTER IV GENERAL
EXCEPTIONS
Chapter IV deals with the various defences which a person, accused of an offence under the
Code or any special or local law can plead. This Chapter is important from the point of view of
criminal responsibility because sections contained in it control all other sections defining offences.
These defences have been put together in one chapter in order to obviate the necessity of repeating in
every penal clause a considerable number of limitations. Every definition of offence, every penal
provision and every illustration of a definition or penal provision, shall be construed subject to the
provisions contained in this chapter.
Burden of Proof.—The general rule is that it is the duty of the prosecution to prove the
prisoner's guilt1 and if at the end of and on the whole of the case, there is a reasonable doubt created
by the evidence, given by either the prosecution or the prisoner, as to whether the accused had
committed the offence or not, the prisoner is entitled to acquittal on the ground of benefit of doubt. 2
However in Shivaji v. State of Maharashtra,3 Mr. Justice Krishna Iyer commenting on the rule that
benefit of doubt should always be given to the accused has pointed out towards the evils that too
much emphasis upon this rule is likely to create. He observes :
"The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of
social defence and to the soothing sentiment that all acquittals are always good regardless of
justice to the victim and the community, demand especial emphasis in the contemporary
context of escalating crime and escape. The judicial instrument has a public , accountability.
The cherished principles or golden thread of proof beyond reasonable doubt which runs
through the web of our law should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand
guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only
reasonable doubts belong to the accused. Otherwise any practical system of justice will then
break down and lose credibility with the community.... If unmerited acquittals become general,
they tend to lead to a cynical disregard of the law, and this in turn, leads to a public demand for
harsher legal presumptions against indicted 'persons' and more severe punishment of those
who are found guilty."
But the burden of proving the existence of circumstances bringing the case of the accused
within any of the general exception in the Penal Code, or within any special exception or proviso
contained in any other part of the Code, or in any law defining the offence is upon him, and the court
shall presume the absence of such circumstances.1 It means if an accused pleads an exception within
the meaning of this Chapter there is a presumption against him and the burden to rebut that
1. Dahyahhai Chhaganbhai Thakker v. State of Gujarat, A.I.R.. 1964 S.C. 1563.
2. Woolmington v. D.P.P., 1935 A.C. 462; KM. Nanavati v. State of Maharashtra, A.I.R. 1962 S.C.
605; Bhikari v. State of U.P., 1966 Cr. L.J. 63; Yogendra Morarji v. State of Gujarat, 1980 Cr. L.J. 459.
3. 1973 Cr. L.J. 1783 (S.C).
presumption is on him.2 This does not mean that the accused must lead evidence. Circumstances
which would bring the case of an accused within any of the general exceptions may be proved from
the evidence given for the prosecution or otherwise found on the record. Where an accused pleads an
exception in his defence but the evidence given in support of such plea fails to satisfy the court
affirmatively of the existence of circumstances bringing the case within the general exception
pleaded, the accused is still entitled to be acquitted if upon a consideration of the evidence as a
whole, a reasonable doubt is created in the mind of the court, whether the accused is or is not entitled
to the benefit of the said exception.3 If it is apparent from the evidence on the record, whether
produced by the prosecution or by the defence, that a general exception would apply then the
presumption is removed and it is open to the court to consider whether the evidence satisfactorily
shows that the accused is entitled to the benefit of the general exception.
Principles enunciated in Chapter IV are in fact rules of evidence carrying either conclusive or
rebuttable presumptions. They deal with the circumstances which preclude the existence of mens rea.
They are, therefore, enumeration of 'the circumstances that are incompatible with the existence of
mens rea. Huda calls these principles "conditions of non-imputability", and Kenny calls them
"conditions of exemption from criminal liability". If the existence of facts or circumstances bringing
the case within any of the exceptions is proved, it negatives the existence of mens rea necessary to
constitute the offence and thereby furnishes a ground for exemption from criminal liability.
An analysis of the section contained in Chapter IV reveals that they deal with two broad
classes of exceptions, namely, (i) excusable, and (ii) justifiable. Excusable defences are thosef where
the act committed is excused for want of necessary requirement of mens rea: In such cases the act is
not criminal because the intention was not criminal. Sections 76 to 95 of the Penal Code deal with
excusable defences. In case of justifiable defences the act committed is not excused but is justified on
account of some considerations neutralising the liability otherwise incurred. The act though criminal
is not punishable because it was otherwise meritorious. Section 96 to 106 of the Penal Code deal with
justifiable defences.
76. Act done by a person bound, or by mistake of fact believing himself bound, by law.—Nothing is an
offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a
mistake of law, in good faith believes himself to be, bound by law to do it.
Illustrations
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of
the law. A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered by that court to arrest Y, and after due enquiry,
believing Z to be Y, arrests Z. A has committed no offence.
COMMENT
Chapter IV of the Indian Penal Code captioned 'General Exceptions' deals with general
conditions of non-imputability or general grounds of exemption from criminal liability. The nature of
basis of these exceptions seems to be subjective.
1. Section 105 of Indian Evidence Act, 1872.
2. KM. Nanawati v. State of Maharashtra, A.I.R. 1962 S.C. 605.
3. Prabhu v. Emperor, A.I.R. 1941 All. 402 (KB.).
An analysis of sections 76 to 106 of the Indian Penal Code shows that they deal with circumstances
which negative the existence of mens rea. They are mere enumeration of the circumstances that are
incompatible to the existence of mens rea} In order to constitute a crime two things are very
fundamental, namely, an evil intent and a voluntary act in consequence of such an intent. The
essential conditions of criminal responsibility are the following2 :—
(a) free will;
(b) intelligence to distinguish between good and evil;
(c) knowledge of facts upon which the good and evil of an act may depend;
(d) knowledge that the act is prohibited by law. (This is excluded on grounds of
expediency).
Where any one of the above conditions is wanting, responsibility is negatived. Every man is
presumed to be possessed with free will and he is free to act as he likes. When a man acts upon his
own free will the act is voluntary. But when the will that prompts a man to act is produced by force,
fear or compulsion, neither the will is said to be free nor the act, a voluntary one.
It is a conclusive presumption that every human being has sufficient intelligence to distinguish
between right and wrong or good and evil. However that being the recognised rule in law, some
exceptions to this rule are also provided such as infancy, insanity and involuntary intoxication.
The distinction between good and evil necessarily depends on the knowledge of facts. It is
because of this that ignorance or mistake of such fact as is necessary to distinguish between right and
wrong, is admitted as a good ground of exemption from criminal liability. But in order to be an
excuse the ignorance or mistake of fact should not be the result of carelessness or negligence.
Meaning of mistake.—Ignorantia facti excusat, ignorantia legis neminem excusat is a well
known maxim of criminal law. It means ignorance of fact is an excuse, ignorance of law is no
excuse. The maxim ignorantia facti excusat follows the doctrine of mens rea. In simple language it
means a factual error. "All error consists in taking for real what is mere appearance." 3 For example, a
man in the night time looks at a far off object and believes it to be a man. But when he reaches
nearby to it, discovers that it was a log of wood. The previous opinion is proved to be an error. An
opinion, judgment, or a belief is erroneous by reference to another opinion which corresponds to the
facts.4 According to Hall, error implies5 :
(1) that facts exist;
(2) that sense impressions of facts (which Hall calls 'sensa') are different from the
facts;
(3) that the sensa fit (correspond to, are congruent with) or do not fit the facts;
(4) that erroneous sensa (Those that do not fit the facts) or for a time accepted as true
i.e., they are believed to be congruent with the facts; and
(5) that this sensa is later recognised as erroneous i.e., certain opinions become error when they are
1.. ,Huda, S.; Principles of Law of Crimes, p. 216.

2. Ibid.
3. Stout, Error in Studies in Philosophy and Psychology, p. 271 (1930).
4. Hall, Jerome; General Principles of Criminal Law (2nd Ed.) p. 362,
5. Ibid.
subjected to a broader experience, especially when relatively adequate conditions of correct

perception obtain. The word 'ignorantia' is used to mean ignorance and mistake and these two words
are used interchangeably almost to convey the same meaning. Ignorance means lack of knowledge,
or wrong opinion or judgment caused by insufficient knowledge. Pointing out the distinction between
ignorance and mistake Story observes : "Mistake of fact always supposes some error of opinion as to
the real facts; but ignorance of fact may be without any error, but result is mere want of knowledge or
opinion".1 Thus ignorance implies a total want of knowledge in reference to the subject-matter.
Mistake admits a knowledge, but implies a wrong conclusion.2 However, the distinction has no
appreciable effect on the law.3
Mistake of fact to be excuse must be mistake in respect of a material fact, a fact essential to
constitute a particular offence. It is only such ignorance that negatives the mens rea necessary to
constitute the offence and as pointed out by Baron Parke and accepted by Huda "the guilt of the
accused must depend on circumstances as they appear to him." 4 Mistake according to Russel may be
admitted as a defence provided5 :
(1) that the state of things believed to exist would, if true, have justified the act done;
(2) that the mistake must be reasonable;
(3) that the mistake must relate to fact and not to law.
One who sets up mistake as his defence must establish the existence or the probability of the
existence of that attitude of his mind which he asserts: to have been at the time of commission of
crime. If that is established, it has to be seen whether the appearance of facts, which the accused
pleads to have misled him, would have misled a 'reasonable man'. In other words what accused
believed, must be bona fide and in good faith.
Indian Law.—The Indian Law on mistake is contained in sections 76 and 79 of the Indian
Penal Code. Essentials of section 76 may be analysed as follows :—
(i) an act done by a person who is bound by law in doing that; or
(ii) an act done by a person who believes himself to be bound by
law in doing that;
(iii) the belief must be by reason of a mistake of fact and not by
reason of a mistake of law i.e., mistake must relate to fact, and not to law;
(iv) the belief must be a bona fide belief in good faith /.<?., he must
believe in good faith.
If the above conditions are fulfilled, mistake may successfully be pleaded
in defence to any prosecution for any offence. -
Mistake of fact.—Mistake is not mere forgetfulness. 6 It may or may not be due to
forgetfulness, ignorance or imperfect information. It is afslip made, but by mischance. 1 Mistake in
1. Story; Equity Jurisprudence (13th ed. 1886) p. 158.
2. Hutton v. Edgetton, 6 S.C. 485, at p. 489 (1875).
3. Hall, Jerome; General Principles of Criminal Law, p. 36.
4. Huda; Principles of Law of Crimes, p.
5. Russel on Crime, Vol. I (11th Edn.) pp. 79-80.
6. Barrow v. Issacs, (1891) 1 Q.B. 417. ,
order to be a defence must relate to fact and not to law. At common law an honest and reasonable
belief in the existence of circumstances, which, if true, would make the act for which a prisoner is
charged an innocent act has always been held to be a good defence. In R. v. Tolson,1 Justice Coke
observed that honest and reasonable mistake stands in fact on the same footing as absence of the
reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. In this very case Justice
Stephen laid down the general rule that an alleged offender is deemed to have acted under that state
of facts which he in good faith and on reasonable grounds believed to exist when he did the act
alleged to be an offence. The justification is that such an ignorance many times makes the act itself
morally involuntary.3 For example, where A in good faith believed B a human being to be ghost and
caused fatal injuries to him, A will not be liable for any offence. 4 Hence A would be considered in
the same situation as he bona fide imagined them to be. A imagined B to be a ghost and killing of a
ghost is not an offence, therefore, A has committed no offence.
There are two exceptions to the maxim 'ignorantia facti doth excuse'. First, no one is allowed
to plead ignorance of fact, when responsible inquiry would have elicited the true facts. For example,
when a person marries on an honest belief that his previous marriage has been dissolved by a decree
of divorce whereas the decree of divorce has not been granted, he will be guilty of bigamy. 5 Here
mistake will not save the accused because the second marriage was not performed after making
responsible inquiries about dissolution of previous marriage. Secondly, mistake of fact is not
accepted as a plea at all, when the act is penalised by a statute without reference to the mind of the
wrong-doer. For example, selling of adulterated foodstuffs has been made an offence under the
Prevention of Food Adulteration Act, 1954. In case of any prosecution it shall be no defence that the
vendor was ignorant of the nature, substance or quality of the food sold by him.
In R. v. Princes,'' the accused was charged of unlawfully taking an unmarried girl under the
age of 16 years out of possession and against the will of her father. It was found that the accused
bona fide and reasonably believed the girl to be older than 16 years. The accused's mistaken belief
about the age of the girl was held not to be a good defence to an indictment for abduction because he
intended to do and did a wrongful or immoral act, and not an innocent act. Section 55 of the offences
against the Person's Act, 1857 which made the offence of abduction was intended to penalise the
abduction without proof of any-guilty intention on the part of the wrong-doer.
In R. v. Tolson}1 the accused was convicted of bigamy. She had gone through the.ceremony of
marriage within seven years after she had been deserted by her husband. She believed in good faith
and on reasonable grounds that her husband was dead. It was held that a bona fide belief on
reasonable grounds in the death of the husband at the time of the second marriage afforded a good
defence to the charge of bigamy. Similarly, in Sheras v. De Rutzen,1 a statute prohibited a licensed
1. Sandford v. Bed, (1899) 65 L.J.Q.B. 73.
2. (1889) 23 Q.B.D. 168.
3. 1 Hale P.C. 42. '
4. Waryam Singh, (1926) 28 Cr. L.J. 39.
5. R. v. Wheat and Stocks, (1921) 2 K.B. 129.
6. (1875) L.R. 2 C.C.R. 154.
7. (1889) 23 Q.B.D. 168.
dealer of liquor from supplying liquor to a police constable while on duty and the dealer supplied
liquor to a constable on a bona fide belief that he was off duty. He was held to have committed no
offence.
In Cundy v. he Cocq,2 a publican was charged for selling liquor to an intoxicated person, who
had given no indication of intoxication. There the statute made it an offence for any licensed person
to sell any intoxicating liquor to any drunken person. The publican did not know that the person
served was intoxicated. It was held that prohibition under the statute was absolute and knowledge of
the condition of the person served with liquor was not necessary to constitute the offence.
Mistake is a defence because when an act is done by reason of mistake of fact, mens rea
necessary to constitute the crime is absent or is negatived. In Rex. v. Levett,3 the defendant was
awakened in the night by strange noises in his house; thinking he was attacking a burglar, he ran his
sword through a cabinet where the intruder was hiding and killed a friend of his servant present by
the latter's invitation. It was held not to be manslaughter, "for he did it ignorantly without intention of
hurt to the deceased". Some of the illustrative cases where mistake may be pleaded as a defence are :
(1) Where a rail conductor forcibly ejects a passenger believing that the passenger
has not paid his fare, but persistently refuses so to do.4
(2) Where a person voted before he has attained the age of majority prescribed for
exercising the right of franchise, believing that he was of age.5
In Gopalia Kallaiya? a police officer arrested the complainant under a warrant believing in
good faith that he was the person to be arrested. The complainant brought an action for wrongful
confinement. It was held that the police officer was not guilty because he was protected by this
section. In Bhawoo Jivaji v. Mulli Dayal,1 the accused, a police constable saw the complainant early
in the morning, carrying under his arm three pieces of cloth. He suspected the cloth to be stolen and
therefore questioned the complainant. Answers given by him were not satisfactory. He also refused to
allow the constable to inspect the cloth. The constable thereupon arrested the complainant. The cloth
was found not to be stolen and therefore he prosecuted the constable for wrongful restraint and
confinement. The High Court held the conviction of the constable as wrong as he acted under a bona
fide belief that he was legally justified in detaining what he suspected to be stolen property. He was
protected by this section because his mistake related to fact and was made in good faith. The putting
up of questions to the complainant to clear up his suspicion was a clear indication of his acting in
good faith. Therefore he was not liable.
Plea of Superior Orders.—In case of soldiers, the Indian Penal Code does not recognise the
duty of blind obedience for orders of superiors as sufficient to protect him from the penal
consequences of his act. For illegal acts, neither the orders of a parent nor a master, nor a superior
1. (1895) 1 Q.B. 918.
2. (1884) 13 Q.B.D. 207.
3. 79 Eng. Rep. 1064 K.B. (1688).
4. State v. Mc. Donald, 1 Mo App 510 (1879).
5. Gordon v. State, 52 Ala 308 (1875). . .
6. (1923) 26 Bom. L.R. 138.
7. (1888) 12 Bom. 377.
furnish any defence. The maxim 'respondent superior' has no application to such a case. However,
the plea of obedience to an illegal order can be taken into consideration only in mitigation of
punishment but cannot be used as a complete defence. Where a constable fires upon a lawful
assembly under the orders of his superior, he shall be liable and cannot claim benefit of this section
because no one is obliged to obey illegal orders of the superior. If the order of the superior is justified
and is, therefore, lawful no further question can arise as to whether the subordinate servants who
acted in obedience to that order, believed or did not believe that order to be lawful. Such an inquiry
becomes necessary when the order of the superior officer which is pleaded as a defence is found not
to be in conformity with the commands of the law. In such an eventuality no occasion arises for
applying provisions of section 76.1
Belief in good faith or reasonableness of the error.—An actual mistake of fact is not
sufficient. The apprehension of danger must be bona fide and reasonable.2 Not the defendants
erroneous perceptions of the facts but the facts "as they reasonably appeared to him" determine
whether he is criminally liable.3 Thus it is not every mistake that furnishes a defence, mistake must be
reasonable and must have been made in good faith. Therefore, there must be evidence of such a state
of facts which would justify the belief in good faith. The expression "good faith" is interpreted with
reference to section 52 of the Indian Penal Code.
A person, who has acted "unreasonably" seems occasionally to have been held just as culpable
as he would have been if he had actually intended to commit the harm. 4 This is often so in cases of
bigamy and sexual offences. Negligent behaviour implies inadvertence regarding the harm caused;
while in action in ignorance of the facts, the actor intended to inflict a harm which, however, he
would not have committed had he not been mistaken. Thus, it is the defendant's capacity (to know
and to act with due care) which is often emphasised as the salient common element. 5 The defendant's
capacity to acquire necessary knowledge is discussed in terms of whether his ignorance was
"vincible" or "invincible". According to Aristotle when harm is committed "in ignorance" the wrong-
doer is culpable, but where it is done not only "in ignorance" but also "through ignorance" he is not.
The former is "vincible" ignorance, .the latter "invincible". Where the doer was competent to acquire
the necessary knowledge, the ignorance is "vincible", and where he lacked that ability it is
"invincible". Prof. Jerome Hall does not approve of this distinction when he observes as regards the
lack of ability that "Aristotle's position is more discriminating than the common law which holds that
if a person is sane, he is conclusively presumed to have the necessary capacity. If that presumption is
rejected e.g., there are persons who, although sane, are so handicapped in certain respects that they
lack normal skill6 or knowledge, it follows that such person are not morally culpable for harms
resulting from their lack of competence and that they should not be held criminally liable.7
1. State of West Bengal v. Shew Mongol Singh and others, 1984 Cr. L.J. 1683 (S.C.).
2. Hill v. State, 2 A.L.R. 509 (1915).
3. Nalley v. State, 28 Tax. Ct. Appl. 387 (1890).
4. Regina v, Rosa, (1884) 15 Cox. C.C. 540.
5. Hall; Jerome; General Principles of Criminal Law (2nd. ed.) 368.
6. Yates v. People, 32 N.Y. 509 (1865).
7. Hall, Jerome; General Principles of Criminal Law (2nd. ed.) 369.
Where an act is done in ignorance of material facts and no more than negligence is shown, a
person should not be liable. But if the judgment proceeds from a finding of unreasonableness or
vincibility to one of penal liability, it does, in the opinion of Prof. Hall, take account of the crucial
difference between negligence and recklessness. Although the incompetence or ignorance may have
been vincible or unreasonable, it does not follow that the harm in issue was Committed voluntarily.
Harms resulting from inadvertence or ignorance signify incompetence and inefficiency rather than
the voluntary misconduct that is the concern of the penal law. 1 This does not imply that the community
should not be protected from dangerous inefficiency or ignorance. Prof. Hall suggests that "the
elimination of reasonableness" as a substantive restriction of the doctrine of ignorantia facti would
clarify the public mind regarding the nature of criminal conduct. It would facilitate analysis of the
criminal law and stimulate a sounder administration of it. 2 In Sheo Surun Sahai v. Mohomed Fazell
Khan,3 a police officer saw a horse tied up in D 's premises. Sometimes back his father had lost his
horse and this horse quite resembled with that. Therefore, he thought that either D had stolen the
horse himself or had purchased it from the thief. He, thereupon, compelled D to account for the
possession of the horse. He found that D had bought the horse from P. He, then charged P with theft
and compelled him to give bail while an investigation was pending. The police officer did not send
for the supposed owner of the horse nor took the trouble of getting any credible information as to
whether it was his father's horse or not. The court found that the police officer had not acted in good
faith and therefore this section did not protect him.
Acts done in moments of delusion are also protected under section 76. In Chirangi v. State}
the accused in a moment of delusion had considered that his only son was a tiger and accordingly he
assailed him with an axe thinking, by reason of mistake of fact, that he was justified in destroying the
deceased whom he did not regard to be a human being but who, as he thought, was a dangerous
animal. The accused was allowed the defence of mistake of fact and was held not liable for the
offence.
Mistake of Law.—Mistake of law means mistake as to the existence or otherwise of any law
on a particular subject as well as mistake as to what law is. 5 The words "by reason of mistake of fact
and not by reason of mistake of law" used in section 76 of the I P. Code denote the paraphrasing of
the latin maxim "ignorantia facti excusat ignorantia juris non excusat", which means 'ignorance of->
fact excuses, ignorance of law does not excuse.' The maxim ignorantia juris non excusat has received
wide acceptance not only in English and American juridical system but in many others also. Section
76 of the 1 P. Code is an incorporation of that rule in our law. This rule seems to be based on another
rule of evidence that "every man is presumed to know the law." 'Ignorantia corumquoe scire tenetur
non excusat' (i.e., ignorance of those things which one is bound to know does not excuse), observes
Hale.6
Austin gave two reasons in support of the argument as to why ignorance of law is not excused.1 One is, if ignorance of law were admitted as a ground of exemption, the courts
1. Ibid. p. 372.
2. Hall, Jerome; General Principles of Criminal Law (2nd. ed.) p. 372.
3. (1868) 10 W.R. (Cr.) 20.
4. A.I.R. 1952 Nag. 282.
5. The King v. Tuslippda Mandal, A.I.R. 1951 Orissa 284.
. 6f 1 Hale PC. 42.
will be involved in questions, which it were scarcely possible to solve, and which would render the administration of justice next to impracticable. Secondly, ignorance of law
would then always be alleged by the party, and the court in every case, would be bound to decide the point, whether the party was really ignorant of law. Yet another
justification advanced by Willes J. is that such a defence would introduce an element of uncertainty in the administration of justice.2 Others have argued that every body is
presumed to know the law and the duty of the State comes to an end when it promulgates a newly enacted law and that public policy sacrifices the individual to the general
good.3 According to Holmes : "It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse
at all would be to encourage ignorance when the law maker was determined to make men know and obey, and justice to the individual is rightly outweighed by the larger
interests on the other side of the scale.4
Equally forceful are the arguments made against it. If ignorance of fact excuses, ignorance of
law must also excuse for both negative the existence of a guilty mind. 5 In modern times State activity
has immensely increased partly because of the emergence of the concept of welfare State and partly
because of industrial and scientific developments which have opened new dimensions in social inter-
actiotts. Consequently, the bulk of new laws made by the legislature is growing day by day and no
one howsoever vigilant and skilful he might be, can reasonably be expected to know all the laws.
People living in remote parts of the country cannot be expected to be aware with the day-to-day
developments in law making. Sometimes it takes years for such changes to reach to the masses living
in remote villages of our country. Suppose an act is made penal by an Act of the Parliament today
and a person does that act a day after without any knowledge of the existence of any such law or even
without being reasonably expected to know with the exercise of due diligence, about the existence of
any such law having been enacted, he will be culpable because ignorance of law is no excuse. In this
case he will be punished although he cannot be expected to have done that act with the knowledge
that it was prohibited. To many jurists such a rule appears to be quite harsh. But it is said that it helps
to compel people to learn the standard of conduct required of them and to argue otherwise would
mean to encourage ignorance which can never be the intention of the lawgiver. In England such cases
are referred to executive clemency. In America a distinction is drawn between 'malum in se' and
'malum prohibitum' with a view to provide a limited defence of mistake of law. The rule in America
is that, 'where by-consensus of opinion an act is considered wrongful no one should be allowed to
plead ignorance of law as an excuse.' But when some new offence is created by legislation or a
specific intent is a necessary element to the question of his intent, it would be open to a person to
plead ignorance of statute to show that he had no such intent. The former are known as malum in se
and the latter as malum prohibitum.
In our country no such distinction is drawn. It is suggested that such a distinction is much desirable in
1. Austin, Jurisprudence Vol. I, p. 478.
2. R. v. Tolson, 23 Q.B.D. 168 at p. 172 per Willes, J.
3. Holmes, The Common Law, p. 47.
4. Holmes; The Common Law, pp. 47-48.
5. Huda, S; The Principles of the Law of Crimes, 233-34.
our country specially to deal with the exceptional cases where some modification or change is made
in the penal law or when some new legislation is enacted to suit the changing needs of the country. It
would be against the fundamental principles of criminal jurisprudence to punish a man who was
absolutely ignorant about the existence of any such prohibition or who in spite of his due diligence
could not have known the prohibition. Any view contrary to this would require greater degree of
vigilance on the part of the state that it must make criminal law generally known by giving it a wide
publicity. To cite a few illustrations from our own country, it can be said that laws have been made
prohibiting marriages before a certain fixed age and poor and illiterate people residing in remote
parts of the villages may not be aware with them, still if they act against it, they shall be punished.
The law relating to consent under section 375, I.P.C. is another example of it. Originally the age of
consent under clause 51 of section 375 IP. Code was fixed at 10 years. In 1891, it was changed to 12
years. Later on it was changed to 13 years inside and 14 years outside the marital relations. In 1949
there has again been amendment whereby the age of consent has been raised to 15 years inside and to
sixteen years outside marital relations. These changes in age have undoubtedly taken years to be
known to the general masses, yet if they had committed an act, they would have been liable.
Therefore, some solution is desirable to meet with these situations.
It is, therefore, suggested that the best solution in such cases would be to allow the accused to
establish excusable ignorance of law. Of course the burden must lie on him to prove such ignorance.
In support of this suggestion it can be said that since a mistake regarding a mixed question of law and
fact is treated as a mistake of fact pure and simple, therefore, there seems to be no harm in providing
for a limited defence of mistake of law as stated above. In England also the rule is that if the accused
is misled into an error of fact on account of the error of law his mistake shall be treated as a mistake
of fact rather than of law.
Ignorance of law by foreigners.—The maxim ignorantia juris non excusat, in its application to
criminal offence, admits of no exception. Even a foreigner is not excepted, who cannot reasonably be
supposed to know the law.2 In a case two Frenchmen acted as attendant in fatal duel fight. They were
charged with wilful murder. They pleaded that they had no knowledge of the English law that killing
an adversary in a fair duel amounted to murder. Their plea was not allowed and they were found
guilty.3 Another case may be cited to prove the harshness of the rule. In R. v. Bailey,4 the fact charged
in the indictment happened on June 27, 1799. The same act was made an offence by an Act of the
Parliament on May 10, 1799. The accused was the captain of a ship Langley which at that time was
on the coast of Africa and not possibly know that any such Act had been made by the Parliament. In
strict law the prisoner was guilty, though he could not then know that the Act had been passed by the
Parliament but the case was held to be fit for referring to executive clemency which was granted to
him.
Ignorance of a newly passed statute cannot be pleaded in defence in our country because for an
1. Now it is clause 6 of section 375, IP. Code.
2. Escop, (1836) 7 C. & P. 456.
3. Re Barwnet, 118 E.R. 337.
' 4. (1800) P.R. 1. 86 J.P. 77.
Indian law to operate within the territory of India it is not necessary that it should either be published
or be made known outside the country.1 Therefore, where the legislature passed a law prohibiting a
certain act where A, who would be governed by it was far away at sea and A did the act so
prohibited, he would be liable.
Plea of act of State.—The plea of act of State will be available to persons carrying out an act
of State in the following cases—
(1) if the defendant had authority to act on behalf of the State in the matter, and
(2) if in so acting, he was professing to act as a matter of policy, outside the law and
not as a matter of right within the law.
Guiding Rules in defence of mistake.—Whenever the question of justification of an offence
either due to mistake of fact or mistake of law arises, the following guiding rules shall determine the
liability2 :
(1) That when act is in itself plainly criminal and is more severely punishable if
certain circumstances co-exist, ignorance of the existence of such circumstances is no answer
to a charge for the aggravated offence.
(2) That where an act is prima facie innocent and proper, unless certain
circumstances co-exist, the ignorance of such circumstances is an answer to the' charge.
(3) That the state of the defendant's mind must amount to absolute ignorance of the
existence of the circumstances which alters the character of the act, or to a belief in its non-
existence.
(4) Where an act which is in itself wrong is, under certain circumstances criminal, a
person who does the wrong act cannot set up as a defence that he was ignorant of the facts
which turned the wrong into a crime.
(5) Where a statute makes it penal to do an act under certain circumstances it is a
question upon the wording and object of the particular statute whether the responsibility of
ascertaining that the circumstances exist, is thrown upon the person who does the act or not. In
the former case his knowledge is immaterial.
77. Act of judge when acting judicially.—Nothing is an offence which is done by a judge when acting
judicially in the exercise of any power which is, or which in good faith he believes to be, given to him
byjaw._
COMMENT
This section provides protection to a Judge while acting judicially. This section affords
protection to Judge in those cases in which he proceeds irregularly in the exercise of a power given to
him by law and also in cases where he in good faith exceeds his jurisdiction and has no lawful
powers. The exemption under this section is in respect of a criminal proceeding only. In Megh Raj v.
Zakir? the Allahabad High Court held that 'no person acting judicially is liable for an act done or
ordered to be done in the discharge of his official duty within the limits of his jurisdiction and in such
a case the question of acting in good faith does not arise. The question of good faith is irrelevant only
when a judge acts without jurisdiction but when there is a jurisdiction, the immunity extends even to
acts which constitute even an abuse of it.'
78. Act done pursuant to the judgment or order of court.—Nothing which is done in
1. M.H. George v. State Maharashtra, A.I.R. 1965 S.C. 722.

2. The King v. Tustipadi. tandal, A.I.R. 1951 Orissa 284.
3. 1 All. 280.
pursuance of, or which is warranted by the judgment or order of, a Court of Justice, if done
whilst such judgment or order remains in force, is an offence, notwithstanding the Court may
have had no jurisdiction to pass such judgment or order, provided the person doing the act
in good faith believes that the Court had such jurisdiction.
COMMENT
Section 78 is a corollary to section 77. This section affords protection to officers acting under
the authority of a judgment, or order of a Court of Justice. A Judge is protected under section 77
when he acts within his jurisdiction or where he in good faith, believes to be possessed with
jurisdiction, but an officer under this section is immune even if he executes an order of a court which
has no jurisdiction at all provided that he in good faith believes that the court had jurisdiction.
Mistake of law can be pleaded as a defence under this section.
79. Act done by a person justified or by mistake of fact believing himself justified by
law.—Nothing is an offence which is done by any person who is justified by law, or who by
reason of a mistake of fact and not by reason of a mistake of law in good faith, believes
himself to be justified by law, in doing it.
Illustration
A sees Z commit what appears to A to be a murder. A, in the exercise to the best of his judgment, exerted
in good faith of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in
order to bring Z before the proper authorities. A has committed no offence though it may turn out that Z was
acting in self-defence.
COMMENT
Ingredients.—(1) An act done by a person under a mistake of fact.
(2) Mistake must relate to fact and not to law.
(3) Mistake must be, committed in good faith.
(4) The pers6n doing the act is either justified by law or believes himself
to be justified by law in doing an act.
The 'law relating to ■ mistake of fact has been discussed in detail under section 76 of the
Code. Here it is proposed to deal with some important illustrative cases only.
There is no justification within the meaning of this section for a husband to use force or
restraint to compel his wife to live with him. The law equally applies to Hindus as well as to
Mohammedans. In Rainlo,1 it was heldPthat forcible removal of the wife amounts to an offence, and
persons who join the husband in doing so are entitled to the defence under this section. An advocate
is not justified by law in asking a Magistrate to return the money received by the Magistrate as an
illegal gratification.2 In Joseph Thommen v. Joseph Antony,1, it was held that a person is entitled to
cut off those portions of the tree growing on his neighbour's land which overhang his land. Therefore,
cutting of the branches of such trees does not constitute the offence of mischief under section 427.
Distinction between Section 76 and Section 79.—Section 76 deals with cases where by reason
of a mistake of fact the person under a mistake considers himself bound by law to act in a particular
way, although on the true state of facts his act is an offence. Section 79 on the other hand, deals with
cases where by reason of a mistake of fact the person under such mistake considers himself simply
justified by law to act in a particular way. The anti-thesis between the two cases is involved in the
1. 19 Cr. L.J. 955; A.I.R. 1918 S. 69.

2. U. San Uin v. Hia, A.I.R. 1932 R. 83.
3. 1957 Cr. L.J. 166.
words 'bound by law' in section 76 and justified by law' in section 79. Under section 76 there is legal
compulsion and under section 79 there is legal justification.
Both these sections provide for cases which have nothing to do with mistaken cases which fall
within the definition of an offence but are excepted from punishment, because of legal compulsion or
legal justification. Illustration (a) to section 76 falls in this class. It would have been more logical if
one of these sections had dealt with mistakes, and another with cases of legal compulsion or legal
justification, without bringing in the question of mistake at all.
Cases.—In Kesho Sahit v. Saligram Shah.' the accused had helped a policeman to stop the
buffalo cart of the complainant on the suspicion that rice was being smuggled in the carts. Mistake of
fact under section 79 was pleaded in defence against a charge for wrongful confinement. It was held
that the police man had the power to stop the cart on suspicion and the help rendered to him by the
accused on the request of the policeman was given in good faith and on the belief that the offence of
smuggling was being committed. The defence under section 79 would be available even though the
suspicion turned out to be incorrect.
In Char an Das? a constable of the National Volunteer Corps in obedience to the orders of a
superior officer fired a gun and shot a woman inside the tent in which gambling was going on and no
violent mob had gathered there. The accused was held guilty of the offence of murder. The order of
the superior was unlawful and obedience to an unlawful order does not excuse the person who
commits an offence in obedience of such an order. If commands are obviously illegal, an inferior
would be justified in refusing to execute such commands, but as long as the orders of the superior are
not obviously against the law of the land, they must be obeyed.
In a case A was put on trial for stealing the umbrella belonging to B. A in his defence pleaded
that at the time of taking the umbrella he was intoxicated and erroneously believed that the umbrella
was his own. The defence is tenable because A mistook in good faith another's umbrella to be his
own. Where A shoots at B who enters his room at night under circumstances which make A to
believe in good faith that B is a burglar but B was in fact an inmate to the house and had a right to
enter the room, it was held that A will not be liable for shooting B and will be entitled to claim
defence of justifiable mistake under this section.
'P' a police officers after reasonable inquiry arrested 'B' who was not involved in any offence.
In this case the police officer P is entitled to claim the defence of justifiable mistake under section 79
of the IP. Code because he had arrested B after making reasonable inquiry. P did not act negligently
but arrested B in good faith thinking himself to be justified in doing so.
Where the accused and two private persons stopped the carriage, in which the complainant was
going home with a bundle of cloth and took him to the police station on the mere suspicion that the
complainant was removing cloth in breach of the Control Order, it was held that the accused Was not
entitled to the defence under section 79 of the Code because he did not commit the mistake in good
faith but took the complainant to the police station on a mere suspicion without making reasonable
1. 1977 Cri. L.J. 1725 (Orissa).

2. (1950) 52 P.L.R. 331.
efforts to ascertain the truth. Mistake in order to be a defence must not only relate to fact but must
also be reasonable. B and her husband A make a plan to erect a wall on their own land just in front of
the door of D under the bona fide but erroneous belief that D had no right of easement over the land.
Simply making of a plan is not an offence but even though they erect a wall as planned they would be
entitled to the protection of section 79 because of (heir acting though wrongfully but under a
reasonable and bona fide belief.
Similarly, if the Board of Censors acting within their jurisdiction, sanction the public
exhibition of alleged obscene film, the producer and other connected agencies are protected from
prosecution for an offence under section 292 I.P.C. because section 79 exonerates them at least in
view of their bona fide belief that the certificate issued by the Board of Censors is justificatory.1
In Slate of Orissa v. Bhagaban Barik,2 the accused and the deceased had strained relations
over grazing of cattle. On the fateful night the deceased had gone for recital of Bhagabat. Some other
villagers including the accused were also present there. After the Bhagabat was over the deceased
went to the pond to fetch his bell-metal utensil whereupon he was given a lathi blow on his head by
the accused. The defence plea was that during the day time bell-metal utensil of the accused had been
stolen and he was keeping a watch for the thief. He saw a person coming inside his premises and
thinking him to be a thief he dealt a lathi blow but subsequently discovered that it was the deceased.
It was discovered from the dying declaration made by the deceased and the' extrajudicial confession
made by the accused that the deceased had gone to the pond after the Bhagabat to fetch his bell-metal
utensil.
Under the circumstances it was held that there was complete absence of good faith on the part
of the accused and he was not entitled to benefit of section 79 I.P.C. The deceased and the accused
had strained relations, the accused knew that the deceased had gone for the recital of Bhagabat.
Apparently the accused was waiting for an opportunity to settle the account when he struck the
deceased with the lathi blow and there was no occasion for him to have believed that he was striking
at a thief. Even if he was a thief, that fact by itself would not justify the accused dealing with a lathi
blow on the head of the deceased. The deceased had not effected an entry into the house nor was he
anywhere near it. He had gone to the pond to fetch his bell-metal utensil.
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.
Illustration
A is at work with a hatchet ; the head flies off and kills a man who is standing by. Here, if there was no
want of proper caution on the part of A, his act is excusable and not an offence.
COMMENT
Ingredient.—Indian Law on accident is contained in section 80 of the IP. Code. Its ingredients
are as follows :—
(1) The act must be an accident or misfortune;
(2) The act must not be done with any criminal intention ot knowledge:
1. Raj Kapoor v.' Laxman, 1980 Cr. L.J. 436.

2. 1987 Cr. L.J. 1115 (S.C).
(1) The accident must be the outcome of a lawful act done in lawful manner by
lawful means;
(2) The act must have been done with proper care and caution. Meaning of accident
and misfortune.—Section 80 of the Indian Penal
Code is based on the principle that no act is per se criminal unless the actor did it with criminal
intent. To constitute a crime, intent and the act of the wrong-doer must both concur. As the object of
criminal law is to punish only serious infractions of the rules of society, it follows that criminal law
cannot punish a man for his mistake or misfortune. 1 Accident does not mean a happening by chance
but such happening must be unintentional and unexpected. It means an undesigned happening out of
the ordinary course which no man of ordinary prudence could anticipate or provide against. Stephen
observes :—
"An effect is said to be accident when the act by which it is caused is not done with
intention of causing it and when its occurrence as a consequence of such act is not so probable
that a person of ordinary prudence ought under the circumstances in which it is done, to take
reasonable precaution against it."2
Both the words accident and misfortune imply injury to another. Accident involves injury to
another, misfortune implies as much injury to the author as to another unconnected with the act. For
example, where two men A and B went to jungle to shoot wild rats, and they took their positions and
laid wats for the game. After a while some rustle was heard and A believing it to be wild rat, fired in
that direction. The shot caused B's death. A will be protected under this section because death was
caused by accident.3 In this case the gun with which the accused had fired was an unlicensed gun and
it was observed that the use of unlicensed gun can make that person liable for an offence under
section 19 of the Arms Act, but it cannot deprive him of the benefit of section 80. But where two cars
running in opposite directions collide with each other resulting jn injuries to the drivers of both the
vehicles, it will be a case of misfortune. However, in practice no distinction is maintained between
misfortune and accident. An injury is said to be caused accidentally when it is neither wilfully nor
negligently caused. In Stephen's Digest of Criminal Law the following illustrations are given that
elucidate the nature of acts that may be regarded as accident.
(1) A, a school master corrects a scholar in a manner not intended or likely to injure
him using due care. The scholar dies. Death is accidental.
(2) A turns B a trespasser, out of his house, using no more force than is necessary for
that purpose. B resists but without striking A. They fall in struggle and B is killed. Death is
accidental.
(3). A workman throws snow from a roof giving proper warning. A passenger is killed.
Such a death is accidental.
(4) A takes up a gun, not knowing whether it is loaded or not points it in sport at B and
pulls the trigger. B is shot dead. Such a death is not accidental. If 'A' had reason to believe that
the gun was not loaded, the death would have been accidental, although he had not used every
possible precaution to ascertain whether gun was loaded or not.
Lawful act done in lawful manner by lawful means.—In Jageshwar v. Emperor? the accused
1. Goiir H.S.; Penal Law of India, Vol. I (4th ed.) p. 496.
2. Stephen; Digest of Criminal Law (8th ed.) p. 270. „
3. State v. Rangaswamy, A.I.R. 1952 Nag. 268.
was beating a person with his fists, when the latter's wife with a two months child on her shoulder
interfered. The accused hit the woman but the blow struck the child on his head. The baby died from
the effects of the blow. It was held that although the child was hit by accident, the accused, was not
doing a lawful act in a lawful manner by lawful means and therefore the defence under section 80,
I.P.C. could not be availed of by him. A similar situation would arise where B struck violent blows
on the head and shoulders of a woman who was carrying an infant child in her arms, one of the blows
fell on the child and killed it, while the woman received serious injuries. Here again the defence
under section 80 will not be available to the accused. He would be liable for the offence of culpable
homicide not amounting to murder under section 301, I.P.C. and for attempting to commit murder of
the woman under section 307, I.P.C. In this very case if the woman too dies, then the accused would
be liable for committing murder of both.
Where A trespassed into B's house in absence and on return B demanded A to leave but A
refused to do so. This led to an altercation which excited B who gave him a kick causing injury
resulting in death. It was held that—"A kick is not justifiable mode of turning a man out of your
house, though he be a trespasser. If the deceased would not have died but for the injury received, the
prisoner having unlawfully caused that injury, he is guilty of manslaughter."2
In Shakhir Khan v. Crown? a big party consisting of some hundred men went out for shooting
pigs. A boar rushed towards the accused who fired at her, but he missed the boar and the shot struck
the leg of a member of the party. It was held that the death was caused by accident and was not the
result of rash or negligent shooting. In another case A, by shooting at a fowl with intent to kill and
steal it kills Z who is behind a bush, A not knowing that Z was there. Here A will not be guilty of any
offence and will get the benefit of this section.
In Sukhdev Singh v. Delhi State (Government of NCT of Delhi)? the appellant was attached to
Mangat Ram, a Municipal Councillor and Chairman, Works Committee of the Municipality as a
personal security officer. On 14-6-1989 there was an altercation followed by scuffle between the
accused appellant and Devendra (deceased). The deceased had parked his three wheeler opposite the
gate of Mangat Ram's office which was objected to by the appellant who asked him to take away the
vehicle. The deceased refused to comply and thereafter the appellant threatened him to take the
vehicle to police station. The deceased also retorted to see what accused could do. Thereupon the
appellant boarded the vehicle and asked the deceased to take the vehicle to Adarsh Nagar Police
Station. The deceased instead of going to Police Station, Adarsh Nagar tried to proceed in wrong
direction. Appellant asked him to stop and again a scuffle took place during which the accused
appellant took out his pistol and fired at the deceased. The bullet missed the target and instead hit the
thigh of one Vijay Kumar P.W.-7, who was standing nearby. The appellant fired again and the bullet
hit the deceased and he collapsed. The deceased and Vijay Kumar both were taken to hospital where
the deceased was declared to be dead. In the course of trial the defence of accident under section 80,
Indian Penal Code was pleaded on behalf of the appellant.
1. A.I.R. 1924 Oudh 228 : 24 Cri. L.J. 789.

2. Wilel 2 Law C.C. 214.
3. A.I.R. 1931 Lah. 54.
4. 2003 Cri. L.J. 4315 (S.C.).
It was held that section 80 Indian Penal Code exempts the doer of an innocent or lawful act in
an innocent and lawful manner from any unforeseen result that may ensue from accident or
misfortune. If either of these elements is wanting the act will not be excused on the ground of
accident. An accident is not the same as an occurrence, but something that happens out of the normal
or ordinary course of things. An effect is said to be accidental when the act is not done with the
intention of causing it, and its occurrence as a consequence of such act is not so probable that a
person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable
precautions against it. The idea of something fortuitous and unexpected is involved in the word
"accident".
In the present case the factual position shows that the accused who was posted as Personal
Security Officer, deliberately used the gun, of course during the scuffle and the accused appellant did
not say that the bullet went off in the process of struggle and snatching, but the accused specifically
told that as the deceased tried to snatch the pistol, he fired at him. Hence it was not a case of accident
and therefore he would not be entitled to get the benefit of accident under section 80, Indian Penal
Code.
Accidents in unlawful acts.—Where an accident occurs in doing of unlawful act, there may be
no liability for the harm so caused if there is no causal connection between the resulting harm and the
act in question. Macaulay in his draft of the Indian Penal Code had cited two illustrations. A pilot is
navigating in the river with the utmost care. He directs the vessel against a sand bank, the existence
of which was unknown to him till the disaster. Several passengers are drowned in the river. In this
case to hang the pilot as a murderer on account of his misfortune would be an act of atrocious
injustice. If the voyage of the pilot is illegal and an offence, will it make a difference? His answer
then too is in negative. He says that to pronounce the pilot guilty of one offence, because a
misfortune befell him while he was committing another offence—to pronounce him the murderer of
people whose lives he never meant to endanger, whom he was doing his best to carry safe to their
destination and whose death
has been purely accidental.................is surely to confound all boundaries of crime. The
other illustration cited by Macaulay is : hundreds of persons in some great cities are in the habit of
pickets. They know that they are guilty of an offence. But it has never occurred to one of them, nor
would it occur to any rational man that they are guilty of an offence which endangers life. Unhappily,
one of them attempts to take the purse of a -gentleman who has a loaded pistol in his pocket. The
thief touches the pistol and the trigger goes of, the gentleman is shot dead. In his opinion this man
cannot be treated differently than all those pick-pockets who steal under exactly similar
circumstances with exactly the same intention, with no less risk of causing death, with no greater care
to avoid causing death. Therefore, he suggests that he should not be given punishment other than that
any other pick-pocket would get. It means he should only be punished for pick-pocketing and not for
killing.
In his opinion when a person engaged in the commission of an offence causes death by pure
accident he shall suffer only the punishment of his offence without any addition on account of any
such accidental death.
This view of the framers has found expression in illustration (c) to section 299. Therefore, the
pick-pocket will under our law be liable only for pick-pocketing and not for culpable homicide. It is
submitted that we may agree with Macuulay's formulation in the first illustration but it would be
difficult to agree with his view with regard to the second one. The rule is that in harms caused by
accidents the doer will not be liable if there is no casual connection between the resulting harm and
the act in question. In the first case there is no such causal connection and even if we assume it to be
so it is too remote. The voyage is illegal but death is caused because of diverting the vessel towards a
sand bank which act was quite innocent and accident occurred because of that act. Death did not
occur because of the voyage being illegal but because of collision of the vessel with the sand bank. In
the latter case the trigger of the pistol kept in the pocket went off because the pick-pocket put his
hand in it with an intention to steal and therefore, the death was the result of an act which was not
only an offence but which has direct causal connection with the harm caused. Therefore, it is difficult
to agree with the reasoning of Sir Maculay, that in both the cases the harm was caused by accident in
the commission of another offence. True it may be, but there is a case for reconsideration of the law
on the subject.
Act done with proper care and caution.—In Bhupendrasinh A Chaudasaina v. State of Gujarat,1
the appellant Bhupindrasinh an armed constable of Special Reserved Police shot at his immediate
superior Head Constable who died on the spot. The victim and the appellant were posted in the same
platoon at Khampla Dam site which was in danger, some skirmishes developed and deceased had
taken the appellant to task on the ground of dereliction in discharge of the work allotted to him. The
appellant did not lightly take the diatribe hurled against him by the deceased and he was groping for
some opportunity to retaliate. On the evening of 2-7-1983 the appellant noted the victim walking near
the lower of the dam. He aimed his rifle at the deceased and pumped four bullets into his vital part.
The appellant did own the act of firing the rifle but pleaded that he was doing patrolling duty with the
service rifle and at about 7.45 p.m. when it was absolute dark he came near the bridge for proceeding
towards the valve tower. He saw a flame near the tower and saw somebody moving. He suspected
that some miscreant was about to commit mischief with the fire. He could not identify the moving
person due to want of light and shouted at him to stop. Since there was no reply he proceeded further
and repeated the shout and still there was no reply. He had to open fire in discharge of his duties. His
version is that he first fired in the open air and then fired two more rounds and heard the sound of
something falling down. Thereafter he reported the incident in the office. The appellant was charged
and tried for murder. He was acquitted by the trial judge as he entertained doubt about his complicity.
But a Division Bench of Gujarat High Court while reappraising the whole evidence found that it was
a cold blooded murder. Accordingly the acquittal was reversed and the appellant 1. 1998 Cri. L.J. 57
(S.C.).
was sentenced to imprisonment for life. The Supreme Court refused to allow the appellant benefit of
Section 80, IP. Code because the act has not been done with proper care and caution. The Court
observed that the very fact that the accused shot his own colleague at close range without knowing
the identity of his target smacks of utter dearth of care and caution. 1 Another plea taken by the
accused was that his act was justified under Section 103, IP. Code. The Supreme Court refused to
accept his plea as well as it observed that there is a condition for claiming such an extended right of
private defence if the property sought to be protected is a building. It should be a building used for
human dwelling or for custody of property. The dam is not a building of that type and therefore the
person exercising the right of private defence cannot go to the farthest extent of killing another
person unless the threatened mischief has caused a reasonable apprehension that death or grievous
hurt would otherwise be the consequence. The tower which the accused feared to have been under
threat was neither used for human dwelling nor custody of property and there was no apprehension of
death or grievous hurt therefore defence under section 103, IP. Code was not allowed.
In this case the Court observed that the accused did not disclose to any prosecution witness
/that he was unable to identify his immediate superior and the thought him to be a miscreant and fired
to protect valve tower. The plea of private defence was taken only in his statement under section 313,
Cr. P. Code. The right of private defence was far from contemplation of accused when he -opened
fire at deceased, hence accused is not entitled even to restricted right to private defence under section
104, IP. Code.2
Burden of Proof.—In order that the accused may successfully claim a defence under this
section proof of any criminal intention or knowledge behind the doing of the act is necessary. Where
the accused pleads exception under this section that death was caused by accident, the court shall
presume absence of circumstances bringing the case within that exception in view of section 105 of
the Evidence Act and the burden will lie upon the accused to prove that his case falls within the
exception.3 The burden of proving negation of mens rea which lies on the accused is discharged if he
satisfies the court to the extent that a party to a civil proceeding must satisfy to obtain a verdict in his
favour. He need not go to the excluding an reasonable doubt as the prosecution must do to secure a
conviction, mere preponderance of probability is enough.4
Wrestling.—In Tunda v. State} the accused and the deceased were . two. friends who were fond of wrestling. The accused invited the deceased for wrestling bout.
In the bout the deceased was thrown out where his head came in contact with the hard edge of chabutra which resulted in fracture of the skull and death. It was held that when
the two agreed to bout with each other, there was an implied consent on the part of each other to suffer accidental injuries. In this case because the injury was not intentionally
caused but occurred accidentally and further there being no proof of foul play on the part of the accused, his act did not amount to an offence. He was entitled to protection of
this section.
Fire-arms.—In cases of dealing with fire-arms a greater degree of care than in ordinary cases
is required of a man. Sometimes it is said that a man must know that the gun is loaded. In an English
1. Bhupendrasinh A. Chaudasama v. State of Gujarat, 1998 Cri. L.J. 57 (S.C).
2. Ibid.
3. KM. Nanavati v. State of Maharashtra, A.I.R. 1962 S.C. 605.
4. I.L.R. (1967) 1 Ker. 460.
5. A.I.R. 1950 All. 95.
case,1 a man and his wife went to have dinner with a friend. He carried his gun with him, hoping to
meet with some diversion by the way; but before going to dinner he discharged it and set it up in a
private place in his friend's house. His wife brought the gun part of the way. He carried the gun to the
room where his wife was. He in. tacking it up touched the trigger, and the gun went off and killed the
wife, whom he dearly loved. In the course of evidence it was shown that while the man was at
Church a person belonging to the family had privately taken the gun out to shoot and had returned it
loaded to the place where it was put in the friend's house. The accused was acquitted on the ground
that he had reasonable grounds to believe that the gun was not loaded. The death was, therefore, held
to be by accident.
But where 'A' having right to the possession of a gun which was in the hands of B tried to take
the gun by force knowing that the gun was loaded, and the gun went off accidentally and B was
killed, it was held that A was guilty of the offence of murder because the accident was the result of
an unlawful act.2 Although A had a right to the gun but he should not have used force for regaining
his possession. The act was unlawful because of its having been done in an unlawful manner
knowing that the gun was loaded. Suppose A did not know that the gun was loaded, will it make any
difference with regard to his liability for the offence. In my opinion, it will not make any difference
because taking possession by force would still be an unlawful act. A will, therefore, be liable for the
offence. So also where a person pointed a gun in sport at his wife and the gun went off resulting in
her death, he would be liable for the offence.3
In a case A was carrying a loaded gun and seeing a dramatic performance going on in a public
place stood in a corner to watch it. One of the actor who was playing the part of a dacoit to enhance
the effect of his acting approached A and proceeded to snatch the gun. In the course of the struggle
that followed, the gun went off and the actor was killed. Here A would be entitled to the benefit of
section 80 because he had every right to retain the possession of his gun which was already in his
possession and it was the deceased who had illegally tried to snatch it.
Contributive negligence.—Contributive negligence is no defence to a charge in criminal law.
In R. v. Swindall and Osborne,4 Swindall and Osborne were driving their cars on the public road. On
the way they got drunk and began to race with each other. It was night and an old man was run over
and killed. Both of them were tried for manslaughter. There was evidence that only one of the cars
had run over the deceased. It was held that the other accused was entitled to acquittal. Although the
two had concurred to jointly driving furiously along the road which was an unlawful act, but none
could blame that the carelessness or negligence of the other has contributed to the death of another
person if his own conduct had been blameworthy.
1. Foster; Criminal Law, p. 265.
2. Archer, 1 F. and F. 351.
3. Foster, Criminal Law, p. 263.
4. (1846) 2 C. & K. 230.
In R. v. Walker,1 'A' was driving a pair of horses without reins. B was walking on the road and
was intoxicated. A called out to him twice to'get out of the way but since the speed of the horses was
high 'B' was run over and killed. It was found that B was intoxicated and did not mind A's words. It
was held that A was guilty of manslaughter because it was his duty to so drive his buggy as to
prevent any accident or injury to any person; may be that such other person had also been in some
vay negligent. In this case B's intoxication did not reduce the liability of 'A'. It had also been held in
Mohammed Bttx v. State,2 that if a motor driver caused death by his own omission or negligence, the
fact that the deceased was also negligent and contributed to the accident does not afford a defence to
the driver.
Cases.—In State of Orissa v. Khora Ghasi} A caused death of D by shooting arrow under the
bona fide belief mat he was shooting that arrow at a bear which had entered into his field and was
destroying his maize crop. Death was held to be the consequence of accident. In Raja Ram v. State}
A fired his gun at B. his assailant to defend his person but B escaped injury and the shot hit four other
persons, one of whom, died. In the absence of evidence that the accused, 'A' intended to cause injury
to the injured persons it was held that he was entitled to protection under sections 80, 96 and 100 of
the Code.
In Amrendra v. State of Karnataka,5 the accused opened fire at deceased. It was argued in
defence that it was accidental as reaper swung by deceased at accused struck the gun. However, no
reaper was found at place of occurrence. On the basis of evidence of ocular witnesses corroborated
by medical evidence and evidence of ballistic experts it was found that accused fired at deceased at
the instigation of his father and this act of the accused was intentional and not accidental.
81. Act likely to cause harm, but done without criminal intent and to prevent other harm. —Nothing is an
offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without
any criminal intention to cause harm, and in good faitli for the purpose of preventing or avoiding other harm to
person or property.
Explanation.—It is a question of fact in such a case whether the harm to be prevented or avoided was of
such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was
likely to cause harm.
Illustrations
(a) A, the captain of a steam, vessel, suddenly and without any fault or negligence on
his part, finds himself in such a position that, before he can stop his vessel, he must inevitably
run down a boat, B, with twenty or thirty passengers on board, unless he changes the coarse
of his vessel, and that, by changing his course he must incur risk of running down a boat C
with only two passengers on board, which he may possibly clear. Here, if A alters his course
without any intention to run down the boat C and in good faith for the purpose of avoiding
the danger to the passengers in the boat B, he is not guilty of an offence, though he may run
down the boat C by doing an act which he knew was likely to cause that effect, if it be found
as a matter of fact that the danger which he intended to avoid was such as to excuse him in
incurring the risk of running down the boat C.
(b) A, in a great fire, pulls down houses in order to prevent the conflagration from
1 . 1 C . and P. 330.
2. A.I.R. 1935 Nag. 200.
3. 1978 Cf. L.J. 1305.
4. 1977 Cr. L.J. (NOC) 85.
5. A.I.R. 1998 S.C. 1985.
spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that
the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of the offence.
COMMENT
Ingredients.—The Indian Law on defence of necessity as contained in section 81, I. P. Code
may be analysed as follows :
(1) The act constituting the offence is known by the wrong-doer to be likely to cause
harm, but it is done without any criminal intention to cause harm;
(1) The act must have been done in good faith;
(2) The act must have also been done for the purpose of preventing or avoiding other
harm;
(3) The harm aimed to be prevented or avoided may relate to person or property.
Necessity why a defence.—An act which would otherwise be a crime may in some cases be
excused if the person accused can show that it was done only in order to avoid consequences which
could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or
upon others whom he was bound to protect, inevitable and irreparable evil, that no more was done
than was reasonably necessary for that man, and that the evil inflicted by it was not disproportionate
to the evil avoided.1 This principle is incorporated in section 81 of the Indian Penal Code. Section 81
excuses the doing of an evil so that good may result. It permits the infliction of a lesser evil in order
to prevent greater evil. It is intended to give legislative sanction to the principle that where on a
sudden and extreme emergency, one or other of the two evils is inevitable, it is lawful so to direct
events that the smaller only shall occur.2
In some other legal systems the defence of necessity has been much controversial. Some are in favour of such a defence beings permitted while others are against it
because they have found it difficult to circumscribe the limits of this defence. Stephen thought the law relating to necessity so vague that he dropped a section on necessity
from his Draft Code of 1879. Kenny too had left the question in suspense, concurring with the view expressed by Stephen that "it is just possible to imagine cases in which the
expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it but these cases cannot be defined beforehand.3 Very many authorities are
cited in favour of the defence of necessity.4 In Reniger v. Fogossa,' Serjeant Pollard observed as follows—"In every law there are some things which when they happen a man
may break the words of the law, and yet not break the law itself, and such things are exempted out of the penalty of the law, and the law privileges them although they are done
against the letter of it, for breaking the words of the law is not breaking the law, so as the intent of the law is not broken. It is a common proverb, Quod necessitas non habet
legem....(he may do this) where the words of them are broken to avoid greater inconveniences, or through necessity or by compulsion..."
Wherever necessity forces a man to do an illegal act, he will be justified because

no man can be guilty of a crime without the will and intention of the mind. Thus the
law of necessity dispenses with things which otherwise are not lawful to be done. 1 But
it is a defence provided the harm was not otherwise avoidable. 2 The typical instance of
necessity is pulling down a house to prevent a fire from spreading. 3 In Cope v. Sharp e,4
it was held justifiable to burn a ship of heather to prevent a fire from spreading.
Stephen has cited the case of two drowning men struggling for a plank which
could support only one. If one pushes the other who is then killed by drowning, he
would not be guilty because he left him to a chance of picking another plank and he did
1. Stephen, Digest of Criminal Law (8th edn.) Art. II, p. 10.
2. Mayne, Criminal Law of India (4th edn.) Part I, p. 157.
3. For example Britton; Necessitas vincit legem; Fraunce : Necehabet legem; Bacon; Privilegium
non valet contra renipublic, Quod quit ob tutelam corporis sui frecerit, jure id feciss and Hale. Necessitas
est lex temporis et loci.
4. (1550) Plowed 18, 75, E.R. 29-30.
5. Per Lord Mansfield in R. v. Stratum, (1779) 21 How. St.Tr.C. 1223.
so because of compulsion by necessity. This case has been discussed by many and
diverse answers are found. The authorities appear to confuse three situations. 5 (i) The
actor pushes off a person who is already on the plank; or (ii) the actor is on the plank
and he repulses one who seeks to push him off, (iii^ both the persons reach the plank at
the same time and one thrusts the other aside so that he may secure the plank for
himself. In my opinion what Stephen suggested may cover only the latter two situation
and not the first one. Stephen has mentioned another illustration of shipwrecked persons
in a boat which cannot carry all of them.
In Mouse's case,6 a bargeman threw the goods of the plaintiff out of a barge in
order to lighten the barge in a storm and for the safety of the passengers. In an action of
trespass it was held that not only the bargeman but any passenger would be justified in
taking any such action for the safety of the passengers and it would be immaterial that
the bargeman had overloaded the barge.
In Browning v. State,1 Browning was charged with reckless driving. He pleaded
that he was trying to escape serious injury and illegal arrest by police officers who
wished to ambush him. His plea was accepted, because the act was without free will
upon his part. The driving was justified despite the fact that the defendant wanted to
escape and speed up his automobile to that end.
Without any Criminal intention.—In order to avail of the defence under this
section it is necessary that the criminal act is done without any evil intention.
Intentional wrong-doing can in no circumstances be justified. If a person causes harm to
another by doing an act without any criminal intention, but with the knowledge that
some harm may be caused, he will not be responsible for the harmful consequences of
his act, provided the act was done in good faith to avoid or prevent some other harm to
person or property. 'A' sees a tiger attacking B and he feels sure that the tiger will be on
him in a minute, A shoots the tiger fully knowing that B and the tiger are so close that
he might kill B and not the tiger. Here if A kills B, he would be guilty of no offence
because he had no intention to kill B. A intended to kill the tiger to save B.
Act done to prevent harm to person or property.—-The main principle
1. Per Curium in Manby v. Scott, (1672) 1 Leving 4; 83 E.R. 268.
2. Bracton 2 De Legibus, f. 121 at 277 (Twiss ed. 1879).
3. Maleverger v. Spinke, (1537) Dyer at 36 (b) 73 E.R. at 81; Governor etc. of Cast Plate
Manufacturers v. Meredith, (1972) 4 T.R. at 797; 100 E.R. at 1307.
4. (1912) 1 K.B. 496.
Hall, Jerome; General Principles of Criminal Law (2nd Ed.) p. 418 F.N. No. 16.
6. (1608) 77 E.R. 1341.
7. (1943) 244 Ala. 251; 13 S. 2d. at p. 56.
on which this section is based is that, causing of lesser evil may be justified to prevent greater evil
either to person or property. All measures which may become necessary on occasions of contagious
diseases, sieges, famines, tempests, of shipwrecks are covered by this section.
Cases where necessity may be pleaded as a defence.—Necessity may be pleaded as a
defence in the following cases :—
(i) self-defence, and prevention of violence;
(ii) prevention of harm to the accused at the expense of an innocent
person;
(iii) choice of evils affecting person other than the accused.
Self-defence.—Here the accused pleads that he did the prohibited act in
order to defend himself or his property or so as to prevent the commission of an offence against
another's person or property.1 The law relating to the necessity of self-defence is contained in
sections 96 to 106 of the Code.
Prevention of harm to the accused at the expense of an innocent person. —Lord Hale
observes : if the common provision for the ship's company fails the master may under certain
temperaments break open the private chests of the mariners and passengers and distribute the
provision for the preservation of ship's company. But no amount of necessity will justify a man to
steal clothes or food, however extreme the necessity may be although these circumstances may be
considered in mitigating the penalty to be imposed.
Doctrine of self-preservation.—The question is, how far the necessity of preservation of
one's own life justifies the causing of harm to an innocent person. In R. v. Dudley and Stephen,2 three
adults namely, Stephen, Dudley and Brooks and a boy namely, Parker were cast away in a storm on
the high seas and were compelled to sail into an open boat. After sailing for a few days they had no
food or water in the boat. After 18 days Dudley suggested to Brooks to sacrifice the boy. Brooks
disagreed. On 20th day Dudley with the consent of Stephen, but not of Brooks killed the boy but all
the three fed upon the boy for 4 days when they were picked up. It was found that the boy was in a
weaker condition and likely to die earlier than them. If the sailors could not have fed upon the boy,
they would not have survived and f.W., <iWre, uu Cnance or saving lite except by killing some
one for others to eat. It was held that there were no such necessity as could justify the accused in
killing the boy and therefore they was guilty of murder. After examining a number of authorities on
the law of necessity Lord Coleridge observed as follows :—
"To preserve one's life is generally speaking a duty, but it may be the plainest and the
highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but
to die. The duty, in case of a shipwreck, of a captain to his crew, of the crew to the passengers,
of soldiers to the women and children...these duties impose on men the moral necessity not of
the preservation, but of the sacrifice of their lives for others...it is not correct, to say that there
is necessity to preserve one's life. A man has no right to declare temptation to be an
excuse...therefore the prisoner's act was wilful murder."
Grove, J., further observed : "if the two accused are declared to be justified in killing the boy,
all of them will be justifiably killed to give the fourth a chance of surviving and thus the stronger
1. The Indian Penal Code, 1860, Sec. 97.
2. (1884) 14 Q.B.D. 273.
would be justified in killing the weaker."
Stephen is critical of the above judgment. Dr. H.S. Gour deduces three principles from the
above judgment :—
(i) self-preservation is not an absolute necessity;
(ii) no man has a right to take another's life to preserve his own;
(iii) there is no necessity that justifies homicide.
The third principle would mean that no private necessity justifies homicide except when
homicide is committed in self-defence or it relates to public justice or safety.1
Choice of evils affecting persons other than the accused.—An illustration of the cases falling
under this category arises when a doctor has a choice in killing of the child and killing of the mother
delivering the child. If the doctor acting in good faith to save the mother kills the child he would be
justified under this section. In such cases it would be enough that the doctor in good faith considered
the operation to be necessary whether it was so in fact or not. In England the prosecution has to prove
that the accused was not acting in good faith.
Cases.—In Dhania Daji,2 the accused placed poison in a toddy pot with the intention of
detecting thief, in the habit of stealing toddy from his pots. The toddy was drunk by and caused
injury to some soldiers who purchased it from an unknown vendor. It was held that the accused was
guilty under section 328 of the Code and there was no such necessity of detecting the thief as would
justify the taking of risk of "causing to be taken an unwholesome thing with an intent to injure."
Similarly where X, the owner of a property, finding that trespassers were entering his land and using
his bathroom, set a live electric wire in the passage leading to the bathroom in order to deter
trespassers. There was no warning given that the wire was a live one. A trespasser who entered the
property unaware of the wire happened to touch the wire and got a shock as a result of which he died.
Here, X, would be liable for culpable homicide not amounting to murder as there was no such
necessity to deter the trespassers as may justify taking of so grave a risk as may result in death of a
person.
In Bishambhar v. Roomal* the complainant was taken round the village with blackened face
and was given shoe-beating under the orders of the accused who were members of the Panchayat
because the complainant had molested a chamar girl and in consequence of which about 200
members of that community, armed with lathis, collected together and, determined to punish the
complainant, caught hold of him. The accused were prosecuted under sections 323 and 506 of the
Penal Code. It was held that since the accused had intervened in good faith without any criminal
intent, in order to save the complainant from serious consequences resulting from his own indecent
behaviour with his consent obtained in writing and for his own benefit, therefore, they were entitled
to the benefit of sections 81 and 87 of the Code.
In Gopal Naidu* a village Magistrate arrested a drunken person whose conduct was at the time
a grave danger to the public. It was held that he was net guilty of an offence and was protected by
1. Hale P.C. 478.

2. (1868) 5 B.H.C. (Cr.C.) 59.
3. A.I.R. 1951 All. 500.
4. (1922) 46 Mad. 605.
section 81. It may also be said to be an act done in private defence.

82. Act of a child under seven years of age.—Nothing is an offence which is done by a
child under seven years of age.
COMMENT
Infancy is a defect of the understanding and infants under the age of discretion ought not to be
punished by any criminal prosecution whatsoever.1 In legal sense both boys and girls were held to be
infants under the age of 7 years and were immune from punishment under English and Roman Law.
They are under a natural disability of distinguishing between good and evil. Both under English and
Roman Law when the boy became of 14 and the girl of 12 they were said to have attained the age of
discretion, and, therefore, children above this age were held liable for offences committed by them.
So the children before they attained this age were said to be doli incapax, yet if it appears to the court
that he was doli capax and could discern between good and evil, he may be convicted and suffer the
sentence.
In India a child below 7 years of age' is considered to be doli incapax and therefore cannot be
held guilty of any offence. Merely the evidence of that age would be a conclusive proof of the
innocence of a child and would ipso facto be an answer to any charge against him. 2 In Marsh v.
Loader? defendant caught a child while stealing a piece of wood from his premises, and gave into
custody. Since the child was under the age of responsibility (i.e. 7 years) he was discharged. Where
the members of a partnership or coparceners of a joint family arc made liable, under certain law, for
the criminal act of their servant, the case of minor coparceners will be governed by sections 82 and
83 of the Code.4 A child below 7 years of age is absolutely immune from criminal liability.
83. Act of a child above seven and under twelve of immature understanding.—Nothing is
an offence which is done by a child above seven years of age and under twelve, who has not
attained sufficient maturity of understanding to judge of the nature and consequences of his
conduct on that occasion.
COMMENT
The question whether a criminal intent can be negatived in any given case by reason of
immature age of the doer, and subsequent immaturity of intellect, depends upon a variety of
circumstances. The age at which a person may be said to have acquired sufficient intelligence to
judge of the nature and consequence of his acts varies with and depends upon the climatic condition,
education, precocity etc. Upon a certain age, the presumption of innocence is conclusive. In our
country this age of conclusive presumption is fixed by section 82 of the Code at 7 years. 5 In England
this age, is fixed at below 10 years.6
Ingredients.—The following are ingredients of section 83 :—
(i) An act done by a child above 7 years but under 12 years of age.
(ii) The child must not have attained sufficient maturity of
understanding to judge of the nature and consequence of his conduct.
(iii) Incapacity must exist at the time of commission of the act.
1. Blackstone, Commentaries, Vol. IV, pp. 20-22; see also I Coke's Inst. 247; 1 Hawk P.C. 2.
2. Queen v. Lukliini Agradanini, (1874) 22 W.R. (Cr.) 27.
3. (1863) 14 C.B.N.S. 535.
4. Uttamchand, A.I.R. 1946 Lah. 239.
5. Uttamchand, A.I.R. 1946 Lah. 239.
6. Children and Young Persons Act, 1963. S. 16.
Section 83 deals with the cases of qualified immunity because a child above 7 but below 12
years of age is presumed to be possessed with maturity of understanding and capacity to commit a
crime. However, the presumption is rebuttable and the burden to rebut this presumption lies upon the
defendant. A child between 7 to 12 years of age is qualified to avail the defiance of doli incapax if it
is proved that he has not attained sufficient maturity of understanding to understand the nature and
consequences of his conduct on that occasion. In Hiralal v. State of Bihar} the boy participated in a
concerted action and used a sharp weapon for a murderous attack on the accused. In the absence of
evidence leading about the boy's feeble understanding of his actions the defence under section 83 was
not allowed.
Difference between Indian and English Law.—In India a child below 7 years of age is
absolutely immune from criminal liability; in England this age is fixed at 10 years. In India a child
above 7 years but below 12 years of age enjoys a qualified immunity and is presumed to be doli
capax, therefore the burden to rebut the presumption lies upon him by proving that he was of that age
group and was at the same time doli incapax (i.e. incapable of understanding the nature, quality and
consequences of the act). In England a child of 10 years or over but under the age of 14 years is
presumed to be doli incapax i.e., incapable of committing a crime, but his presumption may be
rebutted by evidence of "mischievous discretion" i.e. knowledge that what was done was morally
wrong. In England a boy under 14 years of age cannot be convicted of rape or of any offence
involving sexual intercourse. But in India no such immunity has been extended to boys. Thus the
remarkable distinction between the Indian and English law is that the former presumes maturity of
understanding and capacity to commit a crime in cases falling under section 83, whereas the latter
presumes incapacity to commit a crime in offences falling in the category of qualified immunity.
Test of qualified immunity.—The test of qualified immunity under section 83 is dependent
upon three factors :—
(i) the nature of the act done;
(ii) subsequent conduct of the offender,
(hi) demeanour and appearance of the offender in the court. The maturity of understanding
may be inferred from the fact that the accused had taken pains to conceal himself or the tools after
the act. It can also be inferred from premeditation. In Mussammat Aimona,2 the accused aged about
10 years slept with her mother-in-law on the night before she committed murder. Her husband aged
about 19 years slept with his brother in another hut but in the same homestead. In the early hours of
the fateful day the mother-in-law woke up the accused, and told her to go about her household duties.
Shortly after this the accused was seen running out of the house and her husband was found mortally
wounded on the neck, she hid herself in a field and could be found only in the afternoon. She was
held by the court to be doli capax because it could be inferred from the circumstances of the case and
her conduct that she was possessed with sufficient degree of criminal intent so as to justify her
conviction.
In Queen v. Lukhini Agradanini? a girl over 7 and under 12 years of age was tried for a charge
of arson. The Jury found that the prisoner was aware of the nature of her act, i.e., she was aware that
it would do damage, but that she was not aware that she would be imprisoned in consequence. The
1. 1977 Cr. L.J. 1921 (S.C).
2. (1864) 1 W.R. (Cr.) 43.
Session Judge referred the case to the High Court expressing the opinion that if a person be aware of
the nature of his act, even if he does not know that punishment will follow, be considered capable of
committing' an offence. The High Court hold that the words "consequence of his conduct" in section
83 do not refer to the penal consequences which flow from a voluntary act, such for instance as that
when fire is applied to an inflammable substance it will burn. The circumstances of a case may
disclose such a degree of malice as to justify the maxim nialitia supplet actatem i.e., malice supplies
defect of years. Here malice means knowledge that the act is morally as well as legally wrong.
Critique of Indian Law.—It may be pointed out that the Indian law relating to infancy suffers
from one lacuna. Section 82 deals with an act done by a child below 7 years of age. Section 83 deals
with acts of children who are above seven but below 12 years of age. The two sections make no
provision for an infant who is of exact 7 years. It is submitted that such an infant should be dealt with
under section 82 of the Code because penal statutes are to be interpreted strictly. In order to warrant a
conviction for an offence a case must fall within the ambit of the definition of the offence charged
and the rule is that the benefit of all reasonable doubts must always go to the accused.
It may also be argued that the presumption of capacity and responsibility against the child of
above 7 years under the Indian Law seems to be unreasonable and no judge is likely to hold a child of
that age group criminally responsible without satisfying himself that the child has sufficient maturity
of understanding to judge the nature and consequence of the act. This principle is based on the
principle that quia malitia supplet actatem which means 'malice makes up for age'.
Cases.—in Vila Mahapatra? the accused, a boy of over eleven years but below 12 years
picked up a knife and threatened to cut the deceased to pieces and did actually kill him. It was held
that his action could lead to only one inference, namely that he did what he intended to do, and that
he knew, all along, that one blow inflicted with a knife would effectuate his intention. He was sent to
a Reformatory School for 5 years.
In Krishna? a child of 9 years of age stole a necklace worth Rs. 2-8-0 and sold it to B. the
accused for five annas. Evidence at the trial showed that the child had attained sufficient maturity of
understanding to judge of the nature and consequences of his conduct. Therefore the child would be
guilty of theft and B would be guilty of receiving stolen property under section 411 I.R Code. In a
case,4 a girl of 10 years married again during the life-time of her husband, the marriage was
negotiated and caused to be performed by her mother. The girl wits held not to have attained
sufficient maturity of understanding to judge of the nature and consequences of her conduct on the
second marriage. In Mariamutha,5 a girl aged about 10 years picked up a silver button and gave it
1. (1874) 22 W.R. (Cr.) 27.
2. 1950 Cut. 293.
3. (1883« 6 Mad. 373.
4. Godi, (1896) Cr. R. No. 55 of 1896, Unrep. Cr.C. 876.
5. 9 Cr. L.J. 392 (Mad.).
to her mother. The girl was not held liable for theft because the circumstances did not disclose that
she had attained sufficient maturity of understanding to judge the nature of her act.
84. Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at the time
of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing
what is either wrong or contrary to law.
COMMENT
General Principles.—In order to hold a person legally responsible for a crime, generally
speaking, a criminal intent is necessary and therefore capacity of the wrong-doer to form a criminal
intent is a relevant consideration in determining the criminal liability of that person. A person may
lack sufficient mental capacity to form a criminal intent because of immaturity of age or because of
some defect of the mental faculty. When such defect is caused by some disease of mind, a person is
said to be insane. Therefore, those who are under a natural disability of distinguishing between good
and evil, as infants under the age of discretion, idiots and lunatics, are not punishable by any criminal
prosecution whatsoever.1 Stephen in his Digest of Criminal Law states 2—"No act is a crime if the
person who does it, is at the same time when it is done prevented either by defective mental power or
by any disease affecting his mind (a) from knowing the nature and quality of the act, or (b) from
knowing that the act is wrong."
In R. v. Arnold,3 the defendant was tried for wounding and making an attempt on the life of
Lord Onslow. There was enough evidence of the mental derangement of the accused. In this case
Tracy, J. laid down the test as follows—"If he was under the visitation of God, and could not
distinguish between good and evil, and did not know what he did, though he committed the greatest
offence, yet he could not be guilty of any offence against any law whatsoever."
According to this case a person can claim exemption from liability if by reason of
unsoundness of mind he was unable to distinguish between good and evil and also did not know what
he did. This test is also known as wild beast test. Later on in Lord Ferrer's case4 the above test of
ability to distinguish between good and evil was approved. In this case Earl Ferrers was tried before
the House of Lords for the murder of his steward, who he deliberately shot in revenge for some
imaginary wror^g.: He pleaded insanity in his defence.
The second test known as {nsQiie delusion test was evolved in Hadfield case.5 Hadfield was
charged for high treason in attempting the assassination of King George III. In this case Erskine,
counsel for the accused was successful in obtaining the verdict of not guilty on the ground of insane
delusion with which the accused was alleged to be suffering. The counsel pleaded that insanity was
to be determined by the fact of fixed insane delusions with which the accused was suffering and
which were the direct cause of his crime. He pointed out that besides persons wholly deprived of
their understanding, whether permanently or temporarily and sufferers under delusions of an
alarming description which overpower the faculties of their victims, there were others where the
delusions were circumscribed and did not overpower all the intellectual faculties of the sufferers,
whose conclusions could be sound and reasonable in themselves.
1. Hawkins, I Haw P.C. 1; see also Coke, HI Inst 6. Button, II 217 B; Stephen, History of
Criminal Law, Vol. II, p. 151; 1 Hale P.C. Ch. IV pp. 29, 37.
2. Ait. U. p. 5.
3. (1724) 16 St. Tr. 695.
4. (1760) 19 St. Tr. 885.
5. (1800) 27 St. Tr. 128.
Lastly in Bowler's case1 the test of capacity to distinguish between right and wrong was
formulated. In this case Le Blanc, J. charged the jury that it was for them to determine whether the
accused when he committed the offence was incapable of distinguishing right from wrong or under
the influence of any illusion in respect of the prosecutor which rendered his mind at the moment
insensible of the nature of the act he was about to commit. Ever since the decision in Bowler's case
the courts have laid more stress on the capacity of the accused to distinguish right from wrong,
though they had not yet definitely formulated this test in very clear terms until the M ' Naghten case
decided in 1843.
M'Naghten Rules.—Daniel M'Naghten, a Scotsman was tried for the murder of Edmond
Drummond, Private Secretary of Sir Robert Peel, the then Prime Minister. M'Naghten was under an
insane delusion that Sir Robert Peel had injured him and mistaking Drummond for Sir Robert Peel he
shot and killed him. The accused pleaded insanity in his defence and the medical evidence produced
showed that he was labouring under a morbid delusion because of which he lost his power of control.
The accused was acquitted on the ground of insanity. His acquittal caused much sensation and
became the subject-matter of debate in the House of Lords. The House of Lords, therefore, referred
the matter to a bench of fifteen judges who were called upon to lay down the law relating to criminal
responsibility in case of lunacy. Some questions were posed to the judges to which they were asked
to answer. The questions and answers are known as M'Naghten Rules, which form the basis of the
modern law on insanity. The following principles can be deduced from the answers given by the
judges :—
(1) Notwithstanding the accused did the act complained of with a view, under the
influence of insane delusion, of redressing or revenging some supposed grievance or injury, or
of producing some public benefit, he is nevertheless punishable according to the nature of the
crime committed, if he knew at the time of committing such crime that he was acting contrary
to law.
(2) The jury ought to be told in all cases that every man is to be presumed to be sane
and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary
be proved to their satisfaction, and that to establish a defence on the ground of insanity it must
be clearly proved that at the time of committing the act, the accused was labouring under such
a defect of reason from disease of the mind, as not to know the nature and quality of the act he
was doing, or if he did know it, that he did not know he was doing what was wrong.
(3) If the accused was conscious that the act was one that he ought not to do, and if
that act was at the same time contrary to the law of the land, he is punishable, and the usual
course, therefore, has been to leave the question to the jury, whether the accused has a
sufficient degree of reason to know that he was doing an act that was wrong.
(4) If the accused labours under partial delusion only, and is not in other respects
insane, he must be considered in the same situation, as to the responsibility, as if the facts with
respect to which the delusion exists were real. For example, if under the influence of this
delusion, he supposes another man to be in the act of attempting to take away his life, and he
kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his
delusion was that the deceased had inflicted a serious injury to his character and fortune and
he killed him in revenge of such supposed injury, he would be liable to punishment.
1. (1812) 1 Collinson Lumacy 673. .

(5) A medical man conversant with the disease of insanity who never saw the prisoner
previously to the trial, but who was present during the whole trial and examination of the
witness, cannot be asked to give his opinion as to the state of the prisoner's mind at the time of
the commission of the crime or his opinion whether the prisoner was conscious at the time of
doing the act, that he was acting contrary to law, or whether he was labouring under any
delusion at the time because these questions involve the determination of the truth of the facts
deposed to, which it is for the jury to decide, and the questions are not questions upon mere
matter of science. But where the facts are admitted or not disputed, and the question becomes
substantially one of the science only, it may be convenient to allow the question to be put in
that general form, though this cannot be insisted on as a matter of right.
In the opinion of Huda these answers, although they do not amount to judicial decisions, have
been and are still regarded as authoritative-expositions of the law relating to insanity.1
The following proposition may be drawn from the answers given by the judges
(i) Every man is presumed to be sane and to posses sufficient degree
of reason to be responsible for his crimes, until contrary be proved to the
satisfaction of the jury or the court.
(ii) To establish defence on ground of insanity it must be clearly-
shown that at the time of committing the act, the accused was labouring
under such a defect of reason from disease of mind that he did not know
the nature and quality of the act he was doing or that he did not know
that what he was doing was wrong.
(iii) if the accused was conscious that the act was one which he
ought not to do and if that act was at the same time contrary to the law,
he would be punishable.
(iv) A medical witness who has not seen the accused previous to the
trial should not be asked his opinion whether on evidence he thinks that
the accused was insane.
(v) Where the criminal act is committed by a man under some insane
delusion as to the surrounding facts, which conceals from him the true
nature of the act he is doing, he will be under the same degree of
responsibility as he would have been on the facts as he imagined them to
be.
Indian Law.—The Indian Law on insanity as contained in section 84 of the Penal Code is
based on the first two propositions which have been drawn from answers to questions No. 2 and 3.
This section lays down the test of responsibility in cases of alleged unsoundness of mind.
Ingredients.—The following are ingredients of section

84 : 1. S. Huda; The Principles of the Law of Crimes in British India, p. 286.
1. Act must be done by a person of unsound mind.
2. Such person must be incapable of knowing :
(i) the nature of the act, or
(ii) that the act was contrary to law, or
(iii) that the act was wrong.
3. Such incapacity must be by reason of unsoundness of mind of the offender.
4. The incapacity of the nature stated above in point 2 must exist at the time of doing
of the act constituting the offence.
A man who by reason of mental disease is prevented from controlling his own conduct, and a
man who is deprived, by disease affecting the mind, of the power of passing a rational judgment on
the moral character of the act he meant to do, is entitled to the benefit of section 84."
The accused is not protected if he knew that what he was doing was wrong, even if he did not
know that it was contrary to law or the vice versa. The unsoundness of mind must exist at the time of
commission of the offence and the onus of proving unsoundness of mind is on the accused. 2 But the
accused has not to prove affirmatively beyond any reasonable doubt that the person was of unsound
mind and that by reason of unsoundness of mind he was incapable of knowing the nature of the act.3
The law presumes every person of the age of discretion to be sane unless the contrary is
proved. Where a lunatic had lucid intervals the law presumes the offence to have been committed
during such interval unless it is proved to have been committed during derangement it was held in
Chhagan v. State? that it would be most dangerous to admit a defence of insanity upon arguments
merely derived from the character of the crime. A somewhat queer behaviour on the part of the
accused preceding the commission of crime does not establish that the accused would be called non
combos mentis.
In order to establish legal insanity it is necessary to prove that the cognitive faculties of the
person are such that he does not know what he has done or what will follow his act. 5 In re
Balagopal? the accused was living very amicably with his wife and behaved in a friendly manner
towards her. He murdered her and his son by stabbing them with a knife. No motive could be
suggested. The medical opinion was also definite about the accused not being in a position to
understand the nature of the act. Therefore, the plea of insanity was upheld by the Court. In Phulabai
v. State of Maharashtra? the plea of insanity was granted to the accused who was suffering from
chronic and incurable illness. In this case, the accused in an attempt to commit suicide jumped into a
well along with her child resulting in the latter's death. The accused pleaded unsoundness of mind but
the medical evidence to the effect was lacking. The plea of unsoundness of mind was accepted on the
ground that the absence of medical evidence did not justify exclusion of common sense.
In Shrikant Anand Rao Bhosale v. State of Maharashtra,1 the appellant was a police constable.
He and Surekha were married in the year 1987. On the date of the incident, they were living in police
quarters along with their daughter. On the morning of 24th April, 1994, there was a quarrel between
1. Hakik Shah, (1887) P.R. No. 42 of 1887.
2. Geron Ali, (1940) 2 Cal. 329.
3. Surju Marande v. State of Bihar, 1977 Cr. LJ. 1765.
4. 1976 Cr. L.J. 671.
5. S. Tuba Chetia v. State o f Assam, 1976 Cr. L.J. 1416.
6. 1976 Cr. L.J. 1978.
7. 1976 Cr. L.J. 1519.
husband and wife. While Surekha was washing clothes in the bathroom, the appellant hit her with
grinding stone on her head. The appellant was immediately taken by the police to the quarter guard.
Surekha was taken to the hospital where she was found dead. After usual investigation the appellant
was charged for the offence of murder of his wife. Insanity of the appellant at the time of commission
of crime was pleaded in his defence. The appellant has a family history as his father was suffering
from psychiatric illness. Cause of ailment was not known. Heredity plays a part. Accused was being
treated for unsoundness of mind since 1992 and was diagnosed as suffering from paranoid
schizophrenia. Within a short span, soon after the incident, from 27th June to 5th December 1994, he
had to be taken for treatment of illness to hospital 25 times. The accused was under regular treatment
for the mental ailment. The motive of killing of wife was weak being that she opposed the idea of
resigning the job of a Police Constable. After killing his wife in day light, he made no attempt to hide
or run away.
It was held that keeping in view the totality of facte and circumstances in the light of the
evidence on record the accused was suffering from paranoid schizophrenia. The unsoundness of mind
before and after the incident would be a relevant fact. From the circumstances of the case an
inference can reasonably be drawn that the accused was under a delusion at the relevant time. He was
under an attack of ailment. The anger theory on which reliance has been placed by the prosecution
cannot be ruled out under schizophrenia attack. Having regard to the nature of burden on the accused,
the accused can be said to have proved the existence of circumstances as required by section 105 of
the Evidence Act so as to get the benefit of section 84, Indian Penal Code. In the circumstances it
cannot be said that the crime was committed as a result of extreme fit of anger. A reasonable doubt
can be raised that at the time of commission of the crime, the accused was incapable of knowing the
nature of the act by reason of unsoundness of mind and thus he would be entitled to the benefit of
section 84, Indian Penal Code. Hence accused was not liable for the offence.
It was held in Sudhir Chand Biswas v. State,2 that in a murder case insanity to be recognised as
an exception to the criminal liability under section 84 must be such as to disable the accused person
from knowing the nature of the act when he committed the criminal act. If at the time of committing
the offence the accused knew the nature of the act, he is guilty. Unsoundness of mind means and
implies a state of mind in which the accused is incapable of knowing that he is doing any wrong or
any thing contrary to law and the burden of proving this is upon the person who takes the plea. Mere
eccentricity or strange behaviour of the accused is not enough to constitute his unsoundness of mind.
Moreover, it is only legal insanity that furnishes ground for exemption from criminal liability. In
order to constitute legal insanity the unsoundness of mind must be such as to make the offender
incapable of knowing the nature of the act or that he is doing any act contrary to law. It is precisely
this state of mind at the time of offence neither ante nor post offence which is only material for the
purpose of determining whether the accused was of unsound mind. Insanity must exist at the time of
commission of offence.
Persons of unsound mind.

There are four kinds of persons who may be said to be not of sound mind (non compos mentis)
: (1) an idiot; (2) a lunatic or a madman; (3) one made non compos by illness; and (4) one who is
1. 2002 Cri. L.J. 4356 (S.C).
2. J 987 Cri. L.J. 863 (Cal.).
drunk.
Idiot.
A person who is of non-sane memory from his birth by a perpetual infirmity, without lucid
intervals is said to be an idiot. Idiot is also one who cannot count twenty or tell the days of the week
or who does not know his father or mother or the like.1
Lunatic.
A lunatic is a person who is afflicted by mental disorder only at certain periods and
vicissitudes, having intervals of reason.2 But madness is permanent. Lunacy and madness are said to
be acquired insanity and idiocy as natural insanity.
Non Compos mentis.
A person made non compos mentis by illness is exempted from criminal liability, in cases of
such acts which are committed while under the influence of his mental disorder.3
Disease of mind.
The accused must first of all show that he was suffering form a disease of the mind when he
did the prohibited act. Mere difficulty in exercising self-control due to psychopathy which is liable to
be aggravated by the consumption of alcohol will not suffice. 4 Any mental disorder which has
manifested itself in violence and is prone to recur is a disease of the mind 5 However, the question
whether a disease is a "disease of the mind" within the M'Naghten rules is to be decided by the judge
and jury.6
Secondly, the accused must show that he was suffering from a defect of reason due to disease
of the mind. It must be more than a momentary confusion and amount to a complete deprivation of
the reasoning power.7 The disease of mind must affect his reasoning power to such an extent that it
renders him insane for medical purposes.
Thirdly, the defect of reason so caused must affect legal responsibility. 8 That is, it must affect
a person's capacity to appreciate what he was doing and whether it was lawful. In other words it must
affect his capacity to know the nature of the act or to distinguish between right and wrong.
Fourthly, the defect of reason from disease of the mind must exist at the time of commission of
the offence.
Unsoundness of mind.—The word unsoundness of mind has not been defined in the Code. To
Stephen it is equivalent to insanity. Insanity means a state of mind in which one or more the functions
of feeling, knowing, emotion and willing is performed in an abnormal manner or is not performed at
all by reason of some disease of the brain or the nervous system. 9 Insanity includes lunacy, mental
derangement, mental disorder, madness and so on. Section 84 does not embrace all types of insanity
1. Archbold 35th Edn. pp. 31-32.
2. Russel 12th Edn. Vol. 1. p. 103; 1 Hale P.C. 31.
3. 1 Hale RC. 30.
4. A.G. for Northern Ireland v. Gallagher, (1963) A.C. 349.
5. Bratty v. A.G. for Northern Ireland, (1963) A.C. 386.
6. Kemp, (1957) 1 Q.B. 399.
7. Clarke, (1972) 1 All E.R. 219.
8. Rivett, (1950) 34 Cr. App. Rep. 87.
9. Stephen History of Criminal Law, Vol. II, p. 130.
known to medical science but only such varieties as render a person incapable of knowing the nature
of the act he was doing or that even if he knew it, he did not know it was either wrong or contrary to
law. The expression unsoundness of mind as used in this section is wide enough to include all
varieties of want of capacity whether temporary or permanent, natural or supervening, whether it
arises from disease or exists from the time of birth. There are numerous degrees of insanity. In order
to be an excuse insanity must reach that degree which is described in the latter part of section 84. If a
person is found of unsound mind, his liability for an offence is determined by the ordinary rules in
regard to insanity, it does not matter whether the insanity arose from disease of the brain or from the
persistent indulgence in intoxicating drugs or liquor.1
The Penal Code uses the words "unsoundness of mind" and not the word 'insanity'. The use of
the more comprehensive term "unsoundness of mind" has the advantage of doing away with the
necessary of defining 'insanity'. Mere unsoundness of mind is not a defence, it must be such as affects
the judgment of a person or in other words when it renders the sufferer incapable of knowing the
nature of the act or that he is doing what is either wrong or contrary to law.
It was held in Siddhapal Kamala Yadav v. State of Maharashtra,2 that in case of murder when
defence of insanity is claimed by the accused the onus of proving unsoundness of mind is on the
accused. But where during the investigation previous history of insanity is revealed* it is the duty of
an honest investigator to subject the accused to a medical examination and place that evidence before
the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit
of doubt has to be given to the accused. The onus, however, has to be discharged by producing
evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or
immediately afterwards, also by evidence of his mental condition and other relevant factors. The
burden of proof however, is not so onerous as that upon the prosecution to prove that the accused
committed the act with which he is charged. The burden on the accused is no higher than that resting
upon a plaintiff or a defendant in a civil proceeding.
Insanity brought on by drunkenness.—Drunkenness is no excuse but delirium tremens caused
by drinking from drunkenness, if it produces such a degree of madness, even for a time, as to render a
person incapable of distinguishing right from wrong, afforded a ground of excuse from criminal
responsibility.3 Insanity created by habitual drunkenness, whether it is permanent, or intermittent, is
the same as insanity produced by any other cause and the act is exempt from liability.4
At the time of doing it.—Insanity must be proved to exist at the time of committing the act constituting the offence complained of.5 A plea of insanity at the time of
trial will not help the accused.6 If at the time of commission of crime a man is found to be labouring under such a defect of reason as not to know the nature of the act he was
doing or that, even if he knew it, he did not know it was either wrong or contrary to law then this section applies. In coming to that conclusion, the relevant circumstances, like
the behaviour of the accused before the commission of the offence and his behaviour after the commission of the offence, should be taken into consideration.1 In order to see
whether the accused was insane at the time of commission of the offence, the state of his mind before and after the commission of the offence is relevant.2
1. Harka, (1906) 26 A.W.N. 193.

2. (2009) I Cri. L.J. 373 (S.C).
3. Davis, (1881) 14 Cox 563.
4. Bheleka Aham, (1902) 29 Cal 493.
5. Gunadhar Mondal v. State, 1979 Cri. L.J. (NOC) 178.
6. Nota Ram, (1866) P.R. No. 56 of 1866.
In S.K. Nair v. State of Punjab? the appellant S.K. Nair was charged for committing murder of
Naik B. Chaudhary and causing injuries with a "Khukri" (Nepalese dagger) on Havildar Kashyap and
driver Joga Singh. The accused S.K. Nair, the deceased B. Chaudhary and the injured Havildar
Kashyap used to live in the same barrack. The deceased was to proceed on leave and driver Joga
Singh was deputed to drop him at Ambala railway station. The deceased has asked Havildar Kashyap
to awake him. When Kashyap came to awake the deceased he noticed the accused sitting on his cot
with a Khukri. The accused inflicted two blows on the head of Kashyap who then raised noise and
the deceased B. Chaudhary and Mr. Suresh Kumar got up from sleep and noticed the accused
inflicting blows on Kashyap. Sri Kashyap managed to go out of barrack through a window. Mr.
Chaudhary caught hold of the accused and told him that he would be produced before the officers.
The accused then retorted that he would be produced before the officers only if Sri Chaudhary was
alive by- then and assaulted the deceased with dagger inflicting 19 injuries upon him resulting in his
death on the spot. By this time Joga Singh driver also reached and when he tried to stop the accused,
he was also attacked and suffered one Khukri blow. On information about the incident when Security
Officer reached the place of occurrence alongwith the Doctor they also found the accused standing
with a Khukri in his hand. The accused surrendered himself and handed over the Khukri to the
security officer. It was pleaded on behalf of the accused that he was a paranoid and, therefore, he
must be presumed to have committed the offences being seized of sudden impulsive fits of passion
which prevented him from understanding the consequences of his act. It was held that even if it is
assumed that in the case of paranoid, the ordinary test of lucid interval as applicable in the case of
patients with unsound mind, is not to be applied, and if paranoid is likely to be seized of sudden
bouts of impulsive fits for which temporarily he becomes completely incapable to understand the
implication of his activities, and such sudden bouts may also disappear within a very short time, in
the instant case it has been revealed from the evidence adduced that at the time of commission of the
said offences, the appellant did not completely lose his sense of understanding. The words spoken by
the accused and his acts clearly demonstrate that at the time of commission of murder he could
explain his intended action with logic. Hence the accused was not incapable to understand the
implication of his acts and was therefore held liable for committing murder of the deceased and also
for causing injuries under Section 324 to others.4
Legal Insanity. -In Someswar Bora v. State of Assam? the accused left the place of murder immediately after committing murder and remembered clearly, in a
confession given on the very next day, what he did. It was held that the accused was not entitled to protection of section 84, IP. Code as it could not be said that he did not
know either the nature and quality of the act or that he did not know that what he did was wrong. The fact that he had some sort of abnormality and mental imbalance was
1. Govinda Swami Padayachi, A.I.R. 1952 Mad. 479; Ahmadultah, (1961) 3 S.C.R. 583;
Dahyabhai, A.I.R. 1964 SJC. 1563.
2. S.W. Mohammed v. State of Maharashtra, 1972 Cr. L.J. 1523.
3. 1997 Cr. L.J. 772 (S.C.).
4. 1997 Cr. L.J. 772 (S.C.).
5. 1981 Cr. L.J. (N.O.C.) 51 (Gauhati)
immaterial.
In order to get the protection of section 84 the accused has to establish the existence of what is
known as legal insanity. The rule is that to establish a defence on the ground of insanity, it must be
clearly proved that at the time of committing of the act, the accused was labouring under such a
defect of reason, from disease of the mind as not to know the nature and gravity of the act he was
doing or if he did know it that he did not know he was doing what was wrong.'
In In re, Balagopal,2 the accused appellant committed murders of his wife and his son by
cutting them with a knife for no apparent reason whatsoever. The mother-in-law of the accused
testified that the accused was living very amicably with his wife and his behaviour was very friendly
and there was nothing abnormal in it. There was no suggestion that the murders were committed by
the accused on account of any motive. The doctor was of the definite opinion that the accused would
not have been in a position to understand whether he has committed any particular act which was
wrong or contrary to law.
It was held that the statement of doctor was sufficient to substantiate the pica of insanity and
there was every indication that the accused when he committed murders by reason of unsoundness of
mind was incapable of knowing the nature of the act or that he was doing what is either wrong or
contrary to law.
It was held in Tabu Chetia v. State of Assam,3 that unsoundness of mind as contemplated by
section 84 of the Penal Code is legal insanity which means the state of mind in which an accused is
incapable of knowing the nature of his act or that he is incapable of knowing that he is doing what is
either wrong or contrary to law. In other words his cognitive faculties are such that he does not know
what he has done or what will follow his act.
In Phulabal v. State of Maharashtra* there was no evidence as to how exactly the accused
who was suffering from chronic and incurable illness fell into the well at mid-night along with her
child aged one and half years. The child was also suffering from rickets prior to its death. It was held
that from the mere fact that the body of the accused was found along with the dead body of the child
next morning, it may be possible to hold that the accused attempted to commit suicide by jumping
along with her child, but it is also possible that she was in such unsound state of mind that she did not
know what she was doing when she jumped into the well along with her child. In the absence of any
evidence clearly indicating asx to exactly how they fell into the well, it would be wrong to play on
imagination and hold the accused guilty under section 309 or 302 and exclude the operation of
section 84 Indian Penal Code. Although the
1. Someswar Bora v. State o f Assam, 1981 Cr. L.J. (N.O.C.) 51 (Gauhati).

2. 1976 Cr. L.J. 1978 (Mad.).
3. 1976 Cr. L.J. 1416 (Gau.).
4. 1976 Cr. L.J. 1519 (Bom.).
S. 34 j GENERAL EXCEPTIONS 187
burden of proof of the defence under section 84 is on the accused that burden is not as heavy on the
accused as on the prosecution. The absence of medical evidence does not justify exclusion of
common sense. Therefore, the benefit of section 84 or at least the benefit of doubt must be given to
the accused.
It was held in Sudhir Ch. Biswas v. State? that the unsoundness of mind in order to be a
defence, means and implies a state of mind in which the accused is incapable of knowing that he is
doing any wrong or anything contrary to law and the burden of proving this is upon the person who
takes the plea. Mere eccentricity or strange behaviour of the accused is not enough to constitute his
unsoundness of mind. Moreover, it is only legal insanity that furnishes ground for exemption from
criminal liability. In order to constitute legal insanity the unsoundness of mind must be such as to
make the offender incapable of knowing the nature of the act or that he is doing any act contrary to
law. It is precisely, this state of mind at the time of offence neither ante nor post offence which is
only material for the purpose of determining whether the accused was of unsound mind. Insanity
must exist at the time of commission of offence.
Difference between medical and legal insanity.—Medical insanity and legal insanity
(unsoundness of mind) are different from each other. Medical insanity is solely dependent on
medical grounds while legal insanity depends on the factors required to be proved in a court of law
to enable the accused to be acquitted of the charge. In other words legal insanity furnishes a good
ground of defence from criminal liability while medical insanity does not. In order to establish legal
insanity the necessary elements as provided by section 84 of the Indian Penal Code must be proved.
If there are sufficient medical grounds to hold that a person is suffering from insanity, it is a case of
medical insanity. In other words the existence of medical insanity is to be proved with the help of
medical evidence. Legal insanity (unsoundness of mind) for the purposes of section, 84 Indian Penal
Code means that the defence must prove that at the time of commission of crime with which the
accused is charged, because of unsoundness of mind, he did not know the nature of his act or that he
was doing what was either wrong or contrary to law. The incapacity of the accused must be caused
by some disease of mind and must exist at the time of commission of crime. Medically a person
may be certified sane or insane as the case may be, but legally he will be held insane (of unsound
mind) only if he successfully proves the requirements of the law under section 84, Indian Penal
Code which will entitle him to be acquitted of the charge. If he fails to prove that, the law presumes
him sane at the time of commission of the crime by him, even though medically he may have been
insane at that time.
Proof of Insanity.—Where in a murder case, it is alleged that the accused was suffering from
insanity, the insanity or unsoundness of mind must be proved. The crucial point of time at which it
should be proved is the time when the crime is actually committed and the burden of proving this is
on the accused. An accused need not prove his case beyond reasonable doubt. It is sufficient if his
case is established from the circumstances which preceded, attended and followed the crime. The
defence of. insanity cannot be accepted upon arguments derived merely from the character of the
crime. The mere absence of proof of
1. 1987 Cr. L.J. 863 (Cal.).
motive would not by itself show that a person was insane although it could be
a factor to be taken into consideration along with other circumstances while
judging such a plea.'
Where insanity is pleaded as defence against a crime the conduct of the accused preceding to
the act complained of as well as succeeding the act and also during the act, all call for closure
scrutiny.2 The insanity of the accused must be a legal insanity. Every insanity recognised in medical
science is not legal insanity.3 in a defence of insanity the conduct of the accused before, during and
after the conduct should be examined clearly.4
Incapable of knowing the nature of the act etc.—The M' Naghten Rules declare that if the
accused were conscious that an act was done which he ought not to do and if the act was at the same
time contrary to the law of the land, he is punishable. A man is said to be ignorant of the nature of
the act when he is ignorant of the properties and operation of the external agencies which he brings
into play.5 Where a man's mind or his faculties of ratiocination are sufficiently clear to apprehend
what he is doing, he must be presumed to intend the consequences of his act. 6 For defence under this
section there must be incapacity to realise the nature of the act. The Penal Code uses the words
"nature of the act" as opposed to "nature and quality of the act" used in M' Naghten Rules. A person
is ignorant of the quality of his act if he knows the result which will follow but is incapable of
appreciating the elementary principles which make up the heinous and shocking nature of the
result.7 The words "quality of the act" do not refer to its moral aspect but they deal only with the
physical character of the act. The words "quality of the act" are not used in the Penal Code. The
offender may under the Code be incapable of knowing that he is doing what is either wrong or
contrary to law. The word 'wrong' here means physical wrong. It does not mean an act which is
normally wrong. Similarly in M'Naghten Rules the word "wrong" has been construed to mean
contrary to law and not 'wrong' according to the opinion of men. 8 Insanity, in order to be a defence,
must be such as to disable an accused person from knowing the nature and consequences of his act
at the time of the commission of the offence. If it were not so the responsibility cannot be absolved.
The correctness of the sentence in such a case cannot be questioned by the Supreme Court and the
Court cannot re-examine the facts once the matter has been rejected by the President of India in a
capital offence.9
Irresistible Impulse.—There can be no crime unless the act is voluntary. Therefore sane or insane, an agent is not responsible for an act done by him against his
own will. Criminal law recognise only physical compulsion and not moral compulsion. In the case of person with a sound mind it is a conclusive presumption that in the
1. Mittu Khodia v. State of Orissa, 1983 Cr. L.J. 1385 (Orissa).

2. Prakash v. State of Maharashtra, 1985 Cr. L.J. 196 (Bom.).
3. 1986 Cr. L.J. 1222 (Ker.).
4. Prakash v. State of Maharashtra, 1985 Cr. L.J. 196 (Bom).
5. Mayne, Criminal Law (4th ed.) Part II, p. 173, cited with approval in Jaswanlrao Bajirao, A.I.R. 1949
Nag. 66.
6. Mani Ram, (1929) 8 Lah. 114.
7. Mayne, Criminal Law (4th ed.) Part II, p. 173.
8. R. v. Wlndle, (1952) 2 Q.B. 826.
9. Amrit Bhutan v. Union of India, 1977 Cr. L.J. 376 (S.C).
absence of actual physical compulsion he is free to act as he likes. This presumption of free agency may not be applicable to a person with a deranged mind. The impulse to
do a particular act even though known to the actor to be wrongful may be entirely due to mental disorder or such a disorder as may have weakened the power of resistance
which a sane person is expected to possess.
Criminal law only punishes a man for his faults and not for his misfortunes. Therefore, if a
state of mind exists where a man knows what he was doing and also that it was wrong, nonetheless
he was so diseased in his volitional function as to be unable to keep away from committing the
harms. Psychiatrists have expressed their opinion against the hypothesis that a person's intelligence
may be quite normal but he may nonetheless be unable to keep away from killing or robbing etc. it
would be a case of irresistible impulse. This thesis has some appeal because of common belief that
everyone has sometime in his life succumbed to a desire to do something against his better
judgment. Irresistible impulse when attributable to a diseased mind seems to have been recognised
as a valid excuse in some English cases. Therefore the irresistible impulse test is not whether the
individual be conscious of right and wrong, not whether he had a knowledge of the consequences of
his act, but whether he can properly control his action. 1 The mere fact that an impulse is not resisted
would not show that irresistible. In some cases medical experts have said that irresistible impulse
itself is a disease That is not true. In one sense everything abnormal is a disease, but courts of law
would hardly be justified in accepting such a doctrine as it will have the effect of condonation of
crime to an extent that is dangerous to society at large. 2 Another ground for opposition of this theory
is that if you allow the defence of irresistible impulse, you make irresistible an impulse which now
is resistible and resisted because of the penal law. In Sodeman v. R.? the Privy Council added one
more rule to the M'Naghten Rules by holding that where a man knows that he is doing what is
wrong, nonetheless he may be held to be insane if he is caused to do the act by an irresistible
impulse produced by disease.
Therefore, the correct position appears to be that if a person otherwise proved to be insane
puts forward a plea of irresistible impulse he is excused, not necessarily because the impulse was
irresistible but because the disease has so far weakened his power of resistance that he yielded to the
impulse yield. The plea of irresistible impulse, therefore, will not by itself be a defence, but should
be a good defence only where there is evidence of an antecedent unsoundness of mind.4
In R. v. Haynes,5 the prisoner was charged with the murder of a woman and no motive was alleged by the prosecution. It was urged for the prisoner that it being
impossible to assign any motive for the commission of the offence, he must have been acting under a powerful and irresistible influence, or homicidal tendency. The prisoner
was held guilty for murder. Bramwell, J. observed as follows—"....Circumstances of an act being apparently motiveless is not a ground from which you can safely infer the
1. Knaggs; Responsibility in Criminal Lunacy 69 (1854).

2. Huda S.; The Principles of the Law of Crimes in British India, pp. 287-88.
3. (1936) 2 All E.R. 1138.
4. Huda, S.; The Principles of the Law of Crimes in British India, p. 288.
5. (1859) 175 E.R. 898.
existence of such an influence. Motives exist unknown and innumerable which might prompt the act. A morbid and restless (but resistible) thirst for. blood would itself be a
motive urging to such a deed for its own relief."
It was further pointed out that there are certain restraints that counteract such an influence.
The most powerful restraint is that of law and others being restraint of religion and conscience. But
if the influence itself be held a legal excuse, rendering the crime dispunishable, it would virtually
amount to withdrawal of a most powerful restraint. It is very difficult to ascertain as to what impulse
is controllable and what is not. Secondly, the plea would take away all the incentive towards self-
control.
Similarly, in Kalicharan,1 it has been pointed out that mere absence of motive for a crime,
howsoever atrocious it may be, cannot, in the absence of plea and proof of legal insanity, bring the
case within this section. The mere fact that murder is committed by the accused on a sudden
impulse and there is no discoverable motive for the act can form no basis for accepting the plea of
insanity.2
Generally when there is sufficient intelligence to distinguish between right and wrong, the
mere existence of an irresistible impulse would not excuse liability. Where unsoundness of mind
creates an uncontrollable impulse to act in a particular way, and the impulse is so powerful as to
override the reason ana judgment and to deprive the accused of the power to adhere to the right and
avoid the wrong, the mere intellectual perception of right and wrong would not affect the question.
'Irresistible impulse' says Wharton] is not a defence in a criminal prosecution, unless it exists to
such an extent as to subjugate the intellect, control the will, and render it impossible for the person
to do otherwise than yield.' This irresponsibility will, however, not be extended to one who with no
mental disorder acts from overmastering anger, jealousy or revenge. There must be insanity first.
The law relating to irresistible impulse may be stated as follows :—
(a) The existence of such an impulse is not to be presumed from the mere absence
of a motive for a criminal act.
(b) Where, however, the existence of a diseased mind is proved by other evidence,
such evidence along with the evidence furnished by the act itself may suffice to prove the
existence of an irresistible impulse, and when proved, is a good ground for exemption even
though there may be sufficient understanding that the act is wrong or illegal.
(c) Where, however, the existence of such understanding is not negatived, the mere
irresistible impulse does not seem to be a ground of exemption in India
1. A.I.R. 1947 Nag. 226.

2. Ganesh v. Shrawan,. (1969) 71 Bom. L.R. 643.
146 [ S. 84
INDIAN PENAL CODE
Theory of integration of the self.

Opposed to the psychological hypothesis of "irresistible impulse" and its current equivalent is
the theory of the "integration of the self". 1 Serious mental disease is a drastic impairment of all
principal aspects of the personality. A psychotic person does not actually understand the moral
significance of his conduct. The absence of the power of self-control would involve an incapacity of
knowing right from wrong... It is as true that a man who cannot control himself does not know the
nature of his acts as that a man who does not know the nature of his acts is incapable of self-control. 2
.
Durhum Rule.
In Durham v. United States3 Durhum was charged of house-breaking and he pleaded insanity
in his defence. The Circuit Court of Appeals declared that the 'existing tests of criminal
responsibility are obsolete and should be superseded'. The existing tests included both the
M'Naghten Rule and the "irresistible impulse" test. In this case the court evolved a new test, namely,
"simply that an accused is not criminally responsible if his unlawful act was the product of mental
disease or mental defect". Mental disease and mental defect were defined. Only because the accused
was suffering from a mental disease or mental defect at the time he committed the act in issue would
not suffice. He would still be responsible for his unlawful act if there was no causal connection
between such mental abnormality and the act. If it was proved that the offender was suffering from
such mental abnormality, the burden will then lie upon the prosecution to prove beyond reasonable
doubt that the act was not the product of such abnormality. The two tests M'Naghten Rule and the
irresistible impulse test could still be employed and the Durhum Rule was in addition to those tests.
Thus the Durhum product test means, the simple fact that a person has a mental disease or defect is
not enough to relieve him of responsibility for a crime. There must be a relationship between the
disease and the criminal act, such that the act would not have been committed if the person had not
been suffering from the disease.4
Relevance of the accused's state of mind on other occasion.
The question of sanity of a person is relevant at the time of commission of crime. Besides,
there are three other periods in the history of a person charged with a crime at which his sanity may
be relevant. These periods are : when he is put up for trial, the time of his conviction and after he has
been sentenced. The accused may be quite sane when he did the act charged but he may be insane to
stand trial. That is, he may be insane at the time of trial and may therefore claim that he was "unfit to
plead". In England such an accused may be detained and tried after recovery. In R. v. Podola,5 P was
charged with killing D, a detective being a police officer acting in the exercise of his duty. It was
contended that P being insane was unable to plead in the trial. It was held that an attack of hysterical
amnesia rendering it impossible for the accused to remember what happened at the time of the
events in respect of which he is charged does not make him unfit to plead. The burden of proving
unfitness to plead is on the accused, although he only has to satisfy the jury of his unfitness on the
balance of probability. In England there is considerable legislation touching these points of
procedure but in our country there are neither legislative nor judicial guidelines.
Cases.
Ram Lai v. State of Rajasthan,1 is an important case on the point. In this case Ram Lai lacked
motive in killing the 8 years old boy and the doctor's report showed that he was a case of epilepsy
2. Stephen; 2 H. Cr. L. 171 (1883) Quoted in Hall, ibid at p. 495.
3. 214 F. 2d. 862.
4. Ibid at 864.
5. (1960) 1 Q.B. 325.
with retarded mental faculty so as to put him in the category of severe subnormality. There was no
evidence that at the time of murder the accused was acting in a state of hallucination or under
influence of epileptic insanity. On the contrary his running away to his village after the occurrence
showed that he was conscious of the fact which was enough to defeat the plea of insanity.
S. 84 ] 147
GENERAL EXCEPTIONS
In Shriram v. State of Maharashtra? the accused 'A' killed his three infant grand daughters
with a handle of a grinding stone and he did not try to conceal the body of victims, nor he attempted
to evade law by destroying the evidence of crime and he made no- preparation for killing the three
kids. It was pleaded that the accused was of unsound mind at the time of commission of crime.
It was held that the facts of the case show that there could be no mens rea on the part of the
accused who killed the three kids in the fits of lunacy. Even if the accused was not able to establish
conclusively that he was insane at the time he committed the offence, the evidence placed before the
court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as
regards one or more of the ingredients of the offence including mens rea of the accused and in that
case the Court may acquit the accused on the ground that the general burden resting on the
prosecution to prove the guilt beyond all reasonable doubt had not been discharged.3
It was held in Hari Singh God v. State of M.P.? that the standard to be applied for deciding
applicability of Section 84 is whether according to the ordinary standard, adopted by a reasonable
man, the act was right or wrong. The mere fact that an accused is conceited odd irascible and his
brain is not quite all right or that the physical and mental ailments from which he suffered had
rendered his intellect weak and had affected his emotions and will, or that he had committed certain
unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he
was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his
behaviour was queer cannot be sufficient to attract the application of Section 84 I.R Code. It was
held on facts of case that Section 84 had no application.
85. Act of a person incapable of judgment by reason of intoxication caused against his will.—Nothing is
an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of
knowing the nature of the act, or that he is doing what is either wrong, or contrary to law : provided that the thing
which intoxicated him was administered to him without his knowledge or against his will.
COMMENT
The early common law made no concession because of intoxication. The earliest case in
England wherein the court approved the death sentence for a homicide committed in extreme
intoxication is Reninger v. Fogossa? This rigorous law prevailed upto the early nineteenth century,
although the efforts by Blackstone and Coke to hold drunkenness an aggravation met with no
success.
1. 1977 Cri. L.J. (NOC) 168 (Raj); see also Bewar Singh Tauli v. State, 1977 Cri. L.J. 296
(Gau.).
2. 1991 Cri. L.J 1631 (Bom.).
3. Ibid.
4. (2009) I Cri. L.J. 346 (S.C.).
5. (1551) K.B. 75 Eng. Rep. 1.
S. 85 ]
GENERAL EXCEPTIONS
Wharton held the view that, 'there could rarely be a conviction for homicide if drunkenness avoided
responsibility'.1 Story stressed, "the law not permitting a man to avail himself of the excuse of his
own gross vice and misconduct to shelter himself from the legal consequences of such crime.2
But the role was gradually relaxed in later judicial decisions during that century. And now
actual insanity produced by drunkenness is a, defence against criminal responsibility to the same
extent as if it had originated from other causes.3 However, only involuntary drunkenness may be
pleaded as an excuse but not voluntary drunkenness. The general rule in England • appears to be that
'merely to show that a man's mind was so affected by drink that he more readily : gave way to a
violent passion is no defence.4 To this general rule there are two exceptions :—
(a) Habitual drinking may occasionally lead to such permanent change; in the brain
tissues as to be accounted insanity,5 such as delirium tremens and alcoholic dementia. Where
the intellect of a person has been permanently impaired by vicious habits, the reasons for
excluding the plea of incapacity are no longer applicable.6
(b) Involuntary drunkenness is a defence. This exception may be j justified for the
reason that the plea of involuntary drunkenness is not open to the same abuse as one of
voluntary drunkenness and the offence is not so likely to be repeated.7
As far as voluntary drunkenness is concerned, it was suggested in Rex v.. , Grindley* that,
while of course, voluntary drunkenness could not be an excuse, it should be considered in
determining the issue of premeditation. Later on in ^Regina v. Doherty,9 Stephen, J. said that "you
cannot take drunkenness as any ,'excuse for crime, yet when the crime is such that the intention of the
party committing it is one of its constituent elements you may look at the fact that a man was in drink
in considering whether he formed the intention necessary to constitute the crime.
The exculpatory rule is not observed in cases that outrage public sensibilities."' The
intoxication in order to be available as a defence must be of that degree and extent as renders the
defendant practically an automation" and the burden of proof of lack of capacity to entertain the
required criminal intent is upon the defendant. 12 The rule permitting disproof of relevant mens rea
has been widely accepted.13 Bishop, summarising the prevailing law states :—
"Evidence of intoxication therefore is admissible for the purpose of
ascertaining whether he was incapable of entertaining the specific intent charged, where such intent
1. Wharton, Criminal Law 95 (1932).
2. United States v. Drew, 25 Fed. Case. No. 15, p. 993.
3. Davis, (1881) 14 Cox 563; Beared,-(192Q) A.C. 479 at pp. 520-521.
4. D.P.P. v. Beard, (1920) A.C. 479.
5. Davis, (1881) 14 Cox 563; Beard, (1920) A.C. 479 at pp. 520-521.
6. Criminal Law Commission's 7th Report (1843) Pari. Pap. XIX, 24.
7. William. G.; Criminal Law (2nd) pp. 562-63.
8. Rex. v. Grindley relates to a murder case of (1881) quoted in Rex. v. Carroll, 173 Eng. Rep. 64.
9. 16 Cox C.C. 306 at 308.
10. For example assault with intent to rape.
11. Tata v. Commonwealth, 258 Ky. 685 at p. 695 (J935).
10. Wlson v. State, 60 N.J.L. 171.
12. Hall, Jerome; (2nd ed.) p. 534.
under the law, is an essential ingredient of the particular crime alleged to have been committed." 1
Indian Law.—The Indian Law on involuntary drunkenness is contained
in section 85 of the Code. This section affords the same protection to an accused
as section 84 to a person of unsound mind. In order to claim exemption from
criminal liability under section 85 the accused has to establish that :
(1) at the time of doing the act by reason of intoxication he was
incapable of knowing—
S. 85 ]
GENERAL EXCEPTIONS
(i) the nature of the act; or
(ii) that he was doing what was either wrong or contrary to
law; and
(2) that the thing which intoxicated him was administered to him
without his knowledge or against his will.
Without his knowledge or against his will.—The expression 'without
his knowledge' means ignorance of the fact that what is being administered is or
contains or is mixed with an intoxicant. 2 An act which the doer performed not
out of his own conscious volition but on compulsion by some outside agency by
overpowering or paralysing his will by overt physical acts is an act against one's
will.3
Voluntary drunkenness is no defence for the commission of a crime. 4
Intoxication is a voluntary species of madness which is in party's power to
abstain from, and he must answer for it. But where drunkenness is involuntary,
as when a man is forced to drink or when he is made drunk through stratagem or
the fraud of others, or through ignorance or when any intoxicant is administered
to him without his knowledge or against his will, 5 his criminal act will be judged
with reference to his mental condition at the time the act was committed. Such a
case is exactly on the same footing as unsoundness of mind. The words used in
sections 84 and 85 are identical and all the considerations that arise in case of
insanity also arise in cases of involuntary drunkenness.
The Director Public Prosecution v. Beard? is the leading case on the point. In this
case a girl of thirteen years while going to market passed through the gate of a mill
where the accused Beard was the watchman on duty. The accused attempted to
commit rape. The girl struggled, therefore, accused placed his hand over her mouth
and pressed his thumb on her throat in a bid to prevent her from screaming. In this
endeavour he unintentionally killed her. The Court of Criminal Appeal found him
guilty of manslaughter but the House of Lords restored the conviction for murder.
The following principles' were laid down :— (i) Where a specific intent is an
essential element in the offence, evidence of a state of drunkenness rendering the
accused incapable of forming such an intent should be taken into consideration in
order to determining whether he had in fact formed the intent necessary to constitute
the particular crime. If he was so drunk that he was incapable of forming the intent
required he could not be convicted of a crime which was
1. Bishop, Criminal Law 299>(9th ed) 1923.

2. Jethu Ram, 1960 Cr. L.J. 1093.
3. Ibid.
4. Bodhee Khan, (1866) 5 W.R. (Cr.) 79; Bodh Dass, (1866) P.R. No. 41 of 1866.
5. 1 Hale P.C. 32.
6. 1920 A.C. 47A
/
S. 86 ] GENERAL EXCEPTIONS 150
committed only if the! intent was proved. This does not mean that the drunkenness in itself is
an excuse for the crime but that the state of drunkenness may be incompatible with the actual
crime charged and may, therefore, negative the commission of that crime.
(ii) Insanity, whether produced by drunkenness or otherwise, is a
defence to the crime charged. The distinction between the defence of
insanity in the true sense caused by excessive drinking, and the defence of
drunkenness which produces a condition such that the drunken man's mind
becomes incapable of forming a specific interltion, has been preserved
throughout the cases. The insane person cannot be convicted of a crime.
The law takes no note of the cause of insanity. If actual insanity in fact
supervenes, as the result of alcoholic excess, it furnishes as complete an
answer to a criminal charge as insanity induced by any other cause. Insanity
even though temporary, was an answer. Where the defence pleaded was that
the accused was of unsound mind at the time of commission of the act
and the evidence established that he was suffering from delirium tremens
resulting from over-indulgence in drink, it was held that, "drunkenness is
one thing and the diseases to which drunkenness leads are different things",
and if a man by drunkenness brings on a state of disease which causes
such a degree of madness even for a time, which would have relieved him
from responsibility if it had been caused in any other way, then he would
not be criminally responsible.
(iii) That evidence of drunkenness which renders the accused
incapable of forming the specific intent essential to constitute the crime
should be taken into consideration with the other facts proved in order to
determine whether or not he had this intent.1
(iv) That evidence of drunkenness falling short of proved incapacity
in the accused to form the intent necessary to constitute the crime, and
merely establishing that his mind was affected by drink so that he more
readily gave way to some violent passion, does not rebut the presumption
that a man intends the natural consequences of his acts.2
The second point emphasises the difference between the defence of insanity and
drunkenness. It is only in the case of insanity that the accused's appreciation of the legal
implications of his conduct becomes relevant.3 Allowance must now be made for the decision in
Gallagher's case,4 that a disease of the mind not attributable to drink does not become so
attributable if exacerbated by it.5
86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In
cases where an act done is not an offence unless done with a particular knowledge or intent, a person who
does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he
would have had if he had not been intoxicated, unless the thing which intoxicated him was administered
to him without his knowledge or against his will.
COMMENT
In the opinion of Sir. E. Coke, "as for a drunkard who is voluntarious demon, he hath no
privilege thereby but what hurt or ill so ever he doth, his
1. See also Basudev v. State o f Pepsu, A.I.R. 1956 S.C. 488.

2. Ibid.
3. Cross & Jones; Introduction to Criminal Law (7th edn.) p. 92.
4. A.G. for Northern Ireland v. Gallagher, (1963) A.C. 349.
5. Supra note 3, Cross and Jones, p. 92.
S. 86 ) GENERAL EXCEPTIONS 151
drunkenness doth aggravate it." Now drunkenness does no more aggravate the offence but
drunkenness is an excuse, and an act which, if committed by a sober man, is an offence, is equally
an offence, if committed by one when drunk, if the intoxication was voluntarily caused. 1 Where
habitual drunkenness causes any mental disease and affects the mind such disease is looked upon as
insanity pro tanto.
The leading authorities in English Law are Meade,2 Beard3, and Gallagher.4 Beard has already
been discussed under section 85. In R. v. Meade,5 the accused brutally attacked his wife and killed
her by a blow with his fist. He pleaded drunkenness in his defence. He was convicted for murder, it
was contended on behalf of the accused that the presumption that the appellant intended to murder
was rebutted because, by reason of drunkenness, he had no such intent. It was held chat a man is
taken to intend the actual consequence of his acts. This may be rebutted in the case of a man who is
drunk by showing his mind to have been so affected by the drinks he had taken that he was
incapable of knowing that what he was doing was dangerous, i.e., likely to inflict serious injury. If
this be proved the presumption that he intended to cause grievous bodily harm is rebutted. It was
further pointed out that if a man be too drunk to form an intention to kill or do grievous bodily
harm, he would, nevertheless, have been guilty of manslaughter either because he intended to
commit a battery upon his wife, or else because -he would have been guilty of gross negligence.
In A.G. for Northern Ireland^ v. Gallagher,6 there was evidence that the accused was a
psychopath, and that his psychopathy was a disease of the mind which would be aggravated by
drink in such a way as to cause him the more readily to lose his self-control. When sober, the
accused Gallagher indicated the intention to kill his wife. He then purchased a bottle of whisky and
he may have drunk some of it before he in fact killed his wife with a knife. The defences of insanity
and drunkenness were raised.
The Judge directed the jury to apply the test laid down in M'Naghten Rules to the time when
alcohol was taken and not to the time when the actual murder was committed. Gallagher was
convicted. It was observed by the House of Lords that—
"Gallagher's psychopathy was not a disease of the mind caused by drink, but a
disease of the mind which, without the drink, could not have brought the M ' Na^hten Rules
into play because it merely"" weakened the accused's power of self-control. The defence of
insanity as opposed to that of drunkenness, could not be made good with the aid of whisky,
and the defence of drunkenness was not available because the accused had already .formed
the intent to kill when he took the drink."
Lord Denning said that the case had to be decided on the general rule that drunkenness is no
defence, to a criminal charge. He accepted two exceptions to this rule, namely, one where
drunkenness prevents the formation of a specific intent, and second, where a disease of the mind
leading to a defect of reason within the M'Naghten Rules was induced by drink. Neither of these
exceptions
1. Q. v. Zoolfikar, 16 W.R. (Cr.) 36.
2. (1909) 1 K.B. 865.
3. (1920) A.C. 479.
4. (1963) A.C. 349.
5. (1909) 1 K.B. 865.
6. (1963) A.C. 349.
152 INDIAN PENAL CODE [ S. 86
was applicable to Gallagher's case because he was not suffering from such a disease, and he had
already formed the intention to kill before he took the whisky. Lord Denning suggested that the
case would have been different if the accused had resiled from his intention to kill his wife before
taking the drink. In that case, the question would have been whether the drunkenness was such as to
bring the case within the first exception to the general rule. But "a psychopath who goes out
intending to kill, knowing it is wrong, and does kill, cannot escape the consequences by making
himself drunk before doing it."1
R. v. Lipinan,2 is another case on the subject. Lipman and the deceased girl were both drug
addicts. On one evening after Lipman had consumed a quantity of the drug (L.S.D.) at her flat, he
began to suffer from hallucination and had an illusion of descending to the centre of the earth and
being attacked by snakes with which he fought. While in this hallucinatory state he attack her two
blows on the head causing her to die from asphyxia. He was charged with murder and pleaded that
he had no knowledge of what he was doing whilst under the influence of the drug and that he had
no intention to harm the deceased. Lipman was convicted for manslaughter. It was observed that,
"for the purposes of criminal responsibility no distinction is made between the effects of drugs
voluntarily taken and drugs involuntarily taken; no specific intent is necessary to support a
conviction for manslaughter based on a killing in the course of an unlawful act and when a killing
results from an unlawful act no specific intent has to be proved to convict of manslaughter and thus
self-induced intoxication is no defence."
Two thought provoking cases are mentioned by Lord Denning in Gallagher's case. The first
is that of a drunken nurse who, at a christening put a baby behind a large fire taking it for a log of
wood; the second that of a drunken man who thought his friend (lying in bed) was a theatrical
dummy and stabbed him to death. Both were held to be manslaughter. Verdicts of manslaughter,
could no doubt be justified on the ground of criminal negligence, but what if the baby and the
friend had survived.
Lord Denning's view is that on a charge of unlawful wounding to which drunkenness is the
only defence, the court is bound to infer that the accused foresaw that his act would cause some
bodily harm to his victim, however drunk the accused may have been. This view can only be
supported on the basis that it is contrary to public policy to allow drunkenness to be a complete
defence to charges of offences against the person on which there is no possibility of a conviction of
a lesser crime, rather than something which may mitigate liability for a graver crime. Such an
approach is perfectly reasonable but there is no modern authority in favour of it.
In conclusion it may be observed that drunkenness is a factor which will sometimes have to
be taken into account in determining the sentence which should be passed.
Indian Law.—The law relating to voluntary drunkenness is contained in section 86 of the
Code. A person voluntarily intoxicated will be deemed to have the same knowledge as he would
have had if he had not been intoxicated. In some offences a particular knowledge may be an
ingredient, in others a particular intent is an ingredient. This section does not say that the accused
shall be liable to be dealt with as if he had the same intention as might have been presumed
1. Ibid at p. 382.
2. (1970) 1 Q.B. 152.
if he had not been intoxicated. There is definitely a presumption so far as knowledge is concerned,
although there is no such presumption in offences requiring intention to constitute them. 1 This
section attributes to a drunken man the knowledge of a sober man when judging of his action but
does not attribute the same intention. In other words the same knowledge will be attributed to a man
in a state of voluntary intoxication as to a man not so intoxicated, but not necessarily the same
intention. It is said that a man must know the natural consequences of his act, and if he knows what
the consequences are likely to be he must be held to have intended them. This inference from
knowledge to intention would not arise when a man is drunk. Voluntary drunkenness under section
86 does not afford a defence where merely knowledge required to constitute the offence was
wanting, though it may be used to show that any intent it required was absent. That is, he can only
be punished on the basis of knowledge and not of any particular intention.
Basudeo v. State of Pepsu,1 is the leading Indian case on the subject. Basudeo was a retired
military Jamadar, A boy aged about 15 or 16 had accompanied him to a marriage party. When they
had gone to take meal, the appellant asked the boy to step aside so that he may occupy a convenient
seat, but the boy did not move. This enraged the appellant and he whipped out a pistol and shot the
boy in the abdomen. The boy died. The appellant was drunk at that time. The question was whether
the case fell under section 302 or section 304 of the Code. The Supreme Court while holding the
accused liable for murder observed as follows :—
"So far as knowledge is concerned, we must attribute to the intoxicated man the same
knowledge as if he was quite sober. But so far as the intent or intention is concerned, we
must gather it from the attending general circumstances of the case paying due regard to the
degree of intoxication. Was the man beside his mind altogether for the time being? If so, it
would not be possible to fix him with the requisite intention. But if he had not gone so deep
in drinking, and from the facts it could be found that he knew what he was about, we can
apply the rule that a man is presumed to intend the natural consequences of his act or acts."
Dr. H.S. Gour summed up the law relating to intoxication as follows3 :
(1) Involuntary drunkenness, that is, drunkenness caused without one's knowledge
or against one's will is an excuse.
(2) Voluntary drunkenness is an excuse only as regards "intention" so that it is a
complete excuse in crimes requiring the presence of an "intention" to complete a crime.
(3) But voluntary drunkenness is no excuse for a crime which requires the mere
presence of "knowledge" as distinct from "intention".
(4) In any case though voluntary drunkenness is no excuse for knowledge, it does
not imply actual knowledge giving rise to the inference of presumed intention.
State of Intoxication.—The words "state of intoxication" mean intoxication which renders a
person incapable of knowing the nature of the act or that he is doing what is either wrong or
contrary to law when he commits it. Drunkenness makes no difference to the knowledge with
which a man is credited and if a man knew what the natural consequences of his acts were he must
1. Dil Mohammad, (1941) 21 Pat. 250.
2. A.I.R. 1956 S.C. 488.
3. Gour H.S.; Penal Law of India (7th ed.) p. 382
be presumed to have intended to cause them.1 But this presumption may be rebutted by his showing
that at the time he did the act, his mind was so affected by the drink he had taken that he was
incapable of forming the intention requisite for making his act the offence charged against him. 2
Cases.—in Dasa Kandha v. State of Orissa,3 the plea of the accused that under the influence
of liquor he could not have formed the requisite intention for committing the murder of the
deceased, hence, his offence be treated as culpable homicide not amounting to murder, was not
accepted. It was held that the normal presumption is that a man intends the natural consequences of
his act unless rebutted by the accused by giving such evidence of drunkenness as might have
affected his faculty of understanding to form the requisite intent. In this case the plea was not
accepted because of the clear and cogent prosecution evidence which established the guilt of the
accused.
In Sarthi v. State of M.P.,4 three drunken accused persons had overpowered the deceased and
made him unconscious by rough handling. They had, thus, the specific intent to cause grievous hurt
till then, but the question with regard to the intent became dubious when the accused person hanged
him from the ceiling without taking steps to ascertain whether he was dead or alive. The
recklessness and gross negligence on the part of these accused, under a state of intoxication, gave
the accused a benefit to be convicted for culpable homicide not amounting to murder instead of the
offence of murder.
In a case A had in his possession two bottles of medicine, one containing a poisonous lotion
and the other a medicine for internal use. While he was in a drunken state A mistakenly gave his
child a dose of the poisonous lotion, as a result of which the child died. Here A is not entitled to
plead the defence of intoxication under section 86 and would be guilty for culpable homicide not
amounting to murder because he was guilty of gross negligence.
A' and B', two friends together consume an intoxicant. Being intoxicated 'A' begins to believe
that a wild beast has attacked him and under this delusion kills 'B'. Here A is liable for culpable
homicide not amounting to murder because he was voluntarily intoxicated and voluntary
intoxication is an excuse only as regards intention but is no excuse for offences requiring
knowledge.
87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent.—
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be
likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether
express or implied to suffer that harm ; or by reason of any harm which it may be known by the doer to
be likely to cause to any such person who has consented to take the risk of that harm.
Illustration
A and Z agree to fence with each other for amusement This agreement implies the consent of each
to suffer any harm which in the course of such fencing, may be caused without foul play ; and if A, while
playing fairly, hurts Z, A commits no offence.
COMMENT
Volenti non fit injuria5 is an old maxim of the Roman Jurisprudence.
1. Judagi Mallah, (1929) 8 Pat. 911.

2. Samman Singh, (1941) 24 Lah. 39.
3. 1976 Cr. L.J. 2010.
4. 1976 Cr. L.J. 594.
5. He who consents suffers no injury.
Although theoretically every crime must involve injury to the community at large, a large body of
offences are those which are essentially private wrongs. In such cases the harm to society consists
merely of the general alarm to the public resulting from the harm caused to the individual and there
can be no alarm from an act. done to a person with his own consent. The element of consent
condones offences against the human body and those against property. Broadly speaking there is no
injury to any right when the act of injury is itself consented to by the owner of the right.
All offences against property are offences against alienable rights and if done with the
consent of the owner, is a complete defence both to civil and criminal actions. Offences against the
human body embodying the right to security of life and limb stand on a different footing. This right
upto a certain stage is an alienable right, but beyond that stage it is inalienable and no amount of
consent can condone the person who infringes that right. A man has not only a right to live but it is
also his duty to live.1 The right to live is an inalienable right and no one can consent to give it away.
Causing grievous hurt is also an inalienable right in the above sense. Therefore, consent is a good
defence to all offences against property and to all offences against human body which do not
involve the causing of death or grievous hurt.
Meaning of Consent.—Consent is not defined in the Penal Code, although section 90 states
when consent is not free. Consent means to agree to a thing being done. According to Story consent
means an act of reason accompanied with deliberation of mind, weighing as in a balance the good
and evil on each side. To Stephen 'consent' means a consent freely given by a rational and sober
person so situated as to be able to form a rational opinion upon the matter to which he consents.
Consent is said to be given freely when it is not procured by force, fraud, or threats of whatever
nature.2 So also Kenny observes that consent must be given freely and by a sane and sober person,
so situated as to be able to form a reasonable opinion upon the matter to which the consent is
given.3 It must be understood clearly that consent is a positive operation of the mind and is,
therefore, distinguishable form mere submission, want of dissent or acquiescence although there
may be in proper cases very strong evidence of a consent. There is difference between consent and
submission. Every consent involves submission but mere submission does not involve consent. It
would be too much to say that an adult submitting quietly to an outrage was not consenting but on
the other hand, the mere submission of a child when in the power of a strong man and most
probably acted upon by fear, can by no means be taken to be such a consent as would justify the
prisoner in the point of law.4 It was held in R. v. Nichol,5 that if a master takes indecent liberties
with a female scholar without her consent, though she does not resist, he may be convicted for a
common assault.
Ingredients of section 87.—The main principle underlying section 87 is that consent never
justifies death or grievous hurt. Under this section any harm other than death or grievous hurt even
though intended or known by the doer to be likely to be caused will not be an offence under the
following conditions :
1. Huda, S.; the Principles of the Law of Crimes in British India, pT~326.
2. Stephen, Digest of Criminal Law (8th ed.), Art. 309, pp. 266-67.
3. Kenny, Outlines of Criminal Law, (17th ed.) p. 189.
4. Coleridge J. in R. v. Day, 9 C. and P. 722.
5. R. and R. 130.
INDIAN PENAL CODE [ S, 87
,156
(1) If act is done neither with the intention of causing death or grievous hurt nor the
knowledge that it is likely to cause death or grievous hurt.
The defence of consent is based on two propositions : (1) that every person is the best judge
of his own interest; (2) that no mkn will consent to what he thinks hurtful to himself. Every man is
free to suffer any injury to his person or property. Therefore, if he consents to the injury being done
by another, the doer commits no offence. For example, a man may give away his property,
therefore, if a person takes another's property with his consent, he commits no offence. However,
this section does not permit a man to consent to anything intended, or known to be likely to cause
his own death or grievous hurt. The authors of the Code said, if Z chooses to sell his teeth to a
dentist, and permits the dentist to pull them out, the dentist ought not to be punished for injuring Z's
person.
Sections 87, 88 and 89 of the Penal Code deal with the law of consent. Consent does not
justify causing of death or grievous hurt, As far as death is concerned the prohibition is absolute
and unconditional except where by statutory provision in some cases consent has the effect of
reducing the gravity of the offence. For example, exception 5 to section 300 and section 314 of the
Code. If consent is obtained for the performance of a dangerous act, which results in the death of
the person consenting, the accused will be liable for mitigated punishment only. For example, in a
demonstration 'B' shoots through the lemon placed on A's head, which results in his death, then B
shall only be punished for culpable homicide riot amounting to murder. Similarly, in case of
suicide pacts the survivor shall be guilty, under Indian Law, for culpable homicide not amounting
to murder. In case of grievous hurt the restriction is removed under certain conditions. The law
does not recognise that death can in any circumstance be a benefit to a man even though it may be a
relief in many cases. For example, a man suffering from extreme unbearable pain or torture may
prefer his death and may implore another to shoot him, but if that other shoots him he will be guilty
although under exception 5 to section 300 his offence will be reduced from murder to culpable
homicide not amounting to murder. Sections 87, 88 and 89 do not refer to offences against property
because of the simple reason that the very definitions of those offences exclude the existence of
consent i.e., want of consent is implied in all offences against property.
Manly sports and exercise.—Where an act is in itself unlawful consent can never be allowed
as defence. However, there are some exceptions to this rule. This section ordinarily provides
protection to certain games like fencing, boxing, single sticks, football and the like. The reason
why injuries suffered in the course of any of these games are distinguished from those where death
results in consequence of an intent to do a slight injury is that in games bodily harm is not the
motive or intention of either party. But in order to avail of the defence under this section in such
cases proper caution and perfect fair play must be used on both sides, and if any improper
advantage is taken the act will amount to manslaughter. 1 A prize fight is illegal, and all persons
aiding and abetting therein are guilty of assault, and the consent of the person actually engaged in
fighting the interchange of blows does not afford any answer of the criminal charge of assault, but
1. Alison 144.
mere presence at the prize fight does not as a matter of law render persons so present guilty of an
assault as aiding and abetting in such fight. 1 All persons who by their presence encourage a fight
from which assault ensues to one of the combatants are guilty of manslaughter, although they
neither say nor do anything.2
Punishment by self-constituted panchayat.—Ordinarily a self-constituted Panchayat has
no right to try an offence alleged to have been committed by a person. But where the accused
persons acted bona fide in calling a Panchayat without any criminal intent, in order to save the
complainant from more serious consequences, resulting from his indecent behaviour towards a girl,
with his consent to abide by the decision of the Panchayat, obtained in writing and for his benefit,
the accused shall get benefit of section 87 and also section 81 as discussed earlier under section 81.
88. Act not intended to cause death, done by consent in good faith for person's benefit.—Nothing,
which is not intended to cause death, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, or be known by the order to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that
harm, or to take the risk of that harm.
Illustration
A, a surgeon, knowing that a particular operation is likely-to cause the death of Z, who suffers
under the painful complaint, but not intending to cause Z's death, and intending, in good faith Z's
benefit, performs that operation on Z, with Z's consent. A has committed no offence.
COMMENT
The rule is that consent can never justify an intentional causing of death. But a person for
whose benefit an act is done, may consent that another shall do that act, even if death may probably
ensue although death is never intended by the doer. Under section 87 any harm other than death
and grievous hurt if caused with the consent of the sufferer is justified. Section 88 condones the
infliction of any harm as it is for the benefit of the person to whom it is caused.
If a person gives his free and intelligent consent to take the risk of an operation which in a
majority of cases, has proved fatal, the doctor who operates cannot be punished even if death
ensues. Similarly, if a person is attacked by some wild beast and calls out to his friends to fire at the
beast, though with imminent hazard to himself, it would not be proper to punish them though they
might, by firing, cause his death, and though when they fired they knew themselves to be likely to
cause his death.
Section 88 differs from section 87 in two important ways : one, under section 88 any harm
except death may be inflicted, under section 87 any harm other than death and grievous hurt may
be inflicted : secondly, in section 88 the age of person consenting is not mentioned, under section
87 the age of the person consenting must be above 18 years.
Ingredients.—This section provides that the doer of an act will not be liable even though he
causes the harm resulting in death intentionally or knowing that the act is harmful if :—
(1) the act done is for the benefit of the person who suffers injury,
1. Coney, (1882) 8 Q.B.D. 543.

2. Murphy, (1883) 6 C. and P. 103.
S. 88 ] GENERAL. EXCEPTIONS 203
(2) such act is done with the consent of the person to suffer that harm or to take the
risk of that harm,
(3) consent may be express or implied,
(4) act is done in good faith,
(5) act is done without intention to cause, death though it might have been done
with the intention of causing such harm as may result in death. Act done for benefit.—In
order that the defence under this section may
be availed it is necessary to show that the act was done for the benefit of the person. Mere pecuniary
benefit is not benefit within the meaning of this section or sections 89 and 92 of the Code.
Act done with the consent.—If an-act is done with the consent of the sufferer defence under
this section may be claimed. Consent may be express or implied. But consent must^be a valid
consent. It must have been lawfully obtained consent. Consent must have been given by a person
who is capable in law of giving a valid consent. Persons above 12 years are considered to be capable
of giving consent under this section.
Act done in good faith.—Act which results in harem or injury must be one done in good
faith i.e., it should not be an act done without due care and attention. What is required under this
section is due care and attention and not necessarily special skill and knowledge. In Sukaroo
Kaviraj1 case, the Kaviraj performed an operation on a person for internal piles by cutting them out
with an ordinary knife. The patient died of profuse bleeding. The Kaviraj was prosecuted for
causing his death by doing rash and negligent act. It was held by the Court that he was not entitled
to protection under this section as he had not acted in good faith. However, the Court reduced the
punishment to fine only instead of imprisonment. In Suraj Bali's1 case, a lady was operated upon by
a person for cataract with the result that she lost her eyesight. It was proved that the operation which
resulted in the loss of the eyesight was performed with the consent of the patient and in good faith
and for her benefit. It was performed in accordance with the recognised Indian method of treatment
for cataract. It was held that no offence was committed and that the defence was available under
section 88 of the Code. Persons not qualified as medical practitioners cannot claim the benefit of
this section as they can hardly be deemed to act hi 'good faith' as that expression is defined in
section 52.
Intention 10 cause harm but not death.—Under this section the wrong-doer is protected
even though he has done the act with the intention of causing harm including grievous hurt but not
death. The defence is available because the act is done in good faith and for the benefit of the
victim.
Cases.—A school teacher who administers in good faith moderate and reasonable corporal
punishment to pupils to enforce discipline in the school is protected by this section and will not be
guilty of an offence punishable under section 323 of the Code. 3 If a teacher slaps a dishonest student
who consequently falls down and strikes his head against a portion of the dias severely and the boy
dies because of brain haemorrhage, the teacher would be guilty under section 325 because the
teacher had no intention to cause any harm but has done the act with a view to reform him which
has unfortunately resulted in his death. If the child is above 12 years of age section 88 will provide
him protection and it he is below 12 years, section 89 will protect him.
1. (1887) 14 Cal. 566.
2. 28 A.W.N. 566.
3. Nissan, (1962) 1 J2x.' L.J. 727; A.I.R. 1962 Mad 216, G.B. Ghatge, A.I.R. 1949 Bom 203;
Ganeshchandra Saha, A.I.R. 1965 Cal. 32.
In England one who deals with '^ne life or health of another person must use competent skill
and sufficient attention; if the patient dies for the want of either the person is guilty of manslaughter
89. Act done in good faith for benefit of child or insane person, by or by consent of guardian. —
Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound
mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of
that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause
or be known by the doer to be likely to cause to that person ; provided—
Provisos—First.—That this exception shall not extend to the intentional causing of death, or to the
attempting to cause death ;
Secondly.—That this exception shall not extend to the doing of anything which the person doing it
knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or
the curing of any grievous disease or infirmity ;
Thirdly.—That this exception shall not extend to the voluntary causing of grievous hurt, or to the
attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the
curing of any grievous disease or infirmity ;
Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing
of which offence it would not extend.
Illustration
A, in good faith, for his child's benefit without his child's consent, has his child cut for the stone by
a surgeon, knowing it to be likely that the operation will cause the child's death but not intending to cause
the child's death. A is within the exception, inasmuch as his object was the cure of the child.
COMMENT
This section gives power to the guardian of an infant under twelve years or an insane person
to consent to the infliction of harm to the infant or the insane person, provided it is done in good
faith and for his benefit. This section offers protection to guardians as well as to other persons acting
with the consent of the guardian of a person under twelve years of age, or of unsound mind. Persons
above 12 years are considered to be capable of giving their consent. Under section 88 the consent is
that of the sufferer himself, whereas under section 89 the consent is of the guardian or other person
having lawful charge of the infant or insane.
Ingredients.—In order that a person may avail the defence under section 89 the following
conditions must be fulfilled :
1. Act must be done for the benefit of a person who is either a minor under 12 years
of age or a person of unsound mind;
2. Act must be done in good faith;
3. Act must be done by the guardian or by the consent of the guardian or other
person having lawful charge of that person;
4. The consent may either be expressed or implied.
If the above conditions are fulfilled, the act shall not amount to an offence by reason of any
harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to
cause, provided the case does not fall within one of the four provisos attached with the section.
Benefit—Benefit under this section also like section 88 does not include pecuniary benefit. It
also excludes benefit which might accrue to the guardian. The benefit must be personal, temporal
benefit. The authors of the Code gave
"six illustrations.
/ (1) A, a parent, whips his child moderately for the benefit of the child. A has
committed no offence.
(2) A, confines his child for its benefit. A commits no offence.
(2) A, in good faith, for his daughter's benefit, intentionally kills her to prevent her
from falling into the hands of Pindaries (i.e. robbers). A is not entitled to the benefit of this
section.
(3) A, in good faith, for his child's pecuniary benefit emasculates his child. A is not
within the exception because he has caused grievous hurt to the child and that too for his
pecuniary benefit.
(4) A, intending in good faith for the pecuniary benefit of Z, his daughter, a child
under 12 years of age, abets a rape committed by B on Z. Neither A nor B will get the
benefit of this section.
(5) A, in good faith for his child's benefit, without his child's consent, has his child
cut for the stone, knowing it to be likely that the operation will cause the child's death, but
not intending to cause child's death. A has committed no offence inasmuch as his object was
the preventing of death or grievous hurt to the child.
A school master who for the purposes of enforcing discipline inflicts moderate punishment
upon a minor pupil is protected under this section. Such punishment may be inflicted for offences
committed not only within the school limits but also outside the school walls except when the
school is closed for any length of time for a period of regular holidays.1
Sections 87, 88 and 89 of the Code have no reference to the offences relating to property and
sex offences where consent plays an important part to constitute an offence, for example in theft and
rape etc. In some sex offences such as adultery consent neutralises the offence. Consent excuses the
offence in two cases : (1) in case of any harm other than death and grievous hurt; and (2) even in
case of any harm resulting in death if it was not intended but was caused in good faith for the benefit
of the person.
90. Consent known to be given under fear or misconception.—A consent is not such a consent as is
intended by any section of this Code, if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception ; or
Consent of insane person.—If the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he gives his consent ; or
Consent of child.—Unless the contrary appears from the context, if the consent is given by a person
who is under twelve years of age.
COMMENT
This section does not define consent but describes what is not consent. We have already
discussed the meaning of the word 'consent' under section 87. The object of this section is not to lay
down that a child under 12 years of age is in fact incapable of expressing or withholding his consent
1. Maung Ba Thaung, (1925) 3 Rang. 669.

2. Khalil-Ur-Rahman, (1933) 11 Rang. 213.
to an act, but to prove that where the consent of person may afford a defence to a criminal charge
such consent must be a real consent, not vitiated by immaturity or in other cases by misconception,
misunderstanding, fear, fraud, etc.2 Consent, in order to be a defence, must be a valid consent i.e., it
must be a consent given by a person who is capable of giving a good and valid consent and it must
be given freely by such person. Consent must be free. If consent is illegally or unlawfully obtained
it is no consent in law. In section 90 the word 'consent' is used. The words "free consent" has been
advisedly avoided because consent is not free when it is obtained by fraud, misrepresentation,
coercion or undue influence etc. or where consent is given under misconception of fact. All kinds of
lack of "free consent" are not covered by this section. All those cases where consent is vitiated by
undue influence, coercion, fraud or misrepresentation are not covered by thi^ section. Cases where
consent is given under misconception of fact and such misconception of fact arises out of
misrepresentation, fraud etc. are covered by this section. Cases where consent is given under
misconception of fact and such misconception of fact arises out of misrepresentation, fraud etc. are
covered by this section, provided also that the person playing fraud or misrepresentation knows or
has reason to believe that the consent was given in consequence of such fear or misconception. For
example, if a man takes undue liberties with a woman having obtained her consent by a promise to
pay money which he never intended to fulfil. Here the consent is obtained by fraud, but nonetheless
it is consent and in this case the consent was not given under misconception of fact. It is, therefore, a
good consent The misconception of fact used in this section refers to misconception regarding the
true nature of the act or regarding the effect or consequences of the acts.
In the following cases consent is not a free consent under this section—
(1) Consent given by a person under fear of injury.
(2) Consent given under misconception of fact.
(3) Consent given by a child under 12 years of age.
(4) Consent given by a person of unsound mind.
(5) Consent given by an intoxicated person.
Fear of injury.—According to section 90 if consent is given by a person under fear of injury
and at the same time the person doing the act knows or has reason to believe, that the consent was
given in consequence of such 'fear' it would not be a good consent so as to excuse the act. The
expression "fear of injury" is very wide. Injury seems to be limited mainly to physical injury
although 'injury' as defined in section 44 means fear of harm to body, mind, reputation or property.
In Dasrath Paswan case,1 the accused had failed at an examination for three successive years. He
was very much upset at these failures. Accordingly he decided to end his life. He informed of his
decision to his wife who was a literate woman of 19 years of age. His wife asked him to kill her first
and "then kill himself. In consequence of this pact the accused killed his wife but was arrested
before he could kill himself. It was held that the wife had not given her consent under fear of injury
or misconception of fact. Here the accused would not be liable for murder but for culpable homicide
not amounting to murder as the case is covered by exception 5 to section 300 of the Code.
Misconception of fact.—Consent given under misconception of fact is not a good and valid
consent provided the person doing the act knows or has reason to believe, that the consent was given
in consequence of such misconception. An honest misconception of fact by both the parties does not
invalidate the consent. For example in Baboolun Hijrah case,2 a man of full age submitted himself
to emasculation, performed neither by a skilful hand nor in the least dangerous way, and died from
the injury. The accused pleaded that a similar operation was performed on them, they never
understood that the practice of emasculation was forbidden by law and also that they acted under the
free consent of the deceased. It was held that the accused were guilty of culpable homicide and not
murder.
1. 1958 Cri. L.J. 548.

2. (1866) 5 W.R. (Cr.) 7.
A person consenting under a misconception of fact arising out of misrepresentation of fact 1
or fraud practiced on him cannot be said to have consented. In Poonai Fattemah case2 the accused,
who professed to be a snake charmer persuaded the deceased to allow himself to be bitten by a
poisonous snake, inducing him to believe that he had power to protect him from harm. It was held
that the consent was given by the deceased under a misconception of fact arising out of the
misrepresentation made by the accused that he had power by charms to cure snake bites and the
accused knew that the consent was given in consequence of such misconception and therefore, the
accused was not entitled to protection on the ground of consent of the deceased.
In Lock case,3 the accused was prosecuted for indecently assaulting two boys, each of whom
was 8 years old. The boys stated in evidence that they did not know what he was going to do to
them when he did each of the acts in question. It was held that the accused was guilty for indecently
assaulting boys because the boys merely submitted to his act not knowing its nature. We all know
that mere submission does not amount to consent and that too by children below 12 years of age.
In Udaya v. State of Karnataka,4 the prosecutrix consented to have sexual intercourse with
the present appellant. It was alleged that the accused Uday expressed love and promised to marry
prosecutrix on a later date. She started cohabiting with accused consciously and became pregnant.
The accused was charged and tried for committing rape as the prosecutrix pleaded that she
consented under misconception of fact that the accused shall marry with her. Rejecting this
contention it was held that the appellant/accused Uday was not liable for the offence of committing
rape because prosecutrix was aware of the fact that they belonged to different castes and proposal of
their marriage will be opposed by their family members and yet she started cohabiting with accused
consciously and became pregnant. Consent given by prosecutrix to sexual intercourse cannot be
said to be given under misconception of fact i.e., promise to marry because she also desired for it.
Further a false promise to marry is not a fact within the meaning of the Penal Code.
Misrepresentation.—Where consent is given in misrepresentation of fact it is one given
under misconception of fact. In R. v. Flattery5 the accused professed to give medical and surgical
advice on payment of consultation fee. A girl of 19 years consulted him with respect to illness from
which she was suffering. He advised that a surgical operation was necessary and under pretence of
performing it, had carnal connection with the girl. She submitted to what was done under the belief
that he was merely treating her medically and performing a surgical operation. It was held that the
accused was guilty of rape. Her submission was not to carnal connection, but to something else. She
consented to one thing, he did another materially different in which she had been prevented by his
fraud from exercising her judgment and will.
In Mung Bachit case,6 a licensee removed from Government control timber of the kind which
was not covered by his licence by misleading the officer concerned to accept the revenue and to
issue a removal pass and bill of title. It was held that the consent of officer for removal of the
timber was obtained through misrepresentation and as such it was no consent. In the circumstances,
the accused was guilty of theft of the timber.
Consent obtained by fraud.—A consent obtained by fraud is no consent,7 provided it results into
1. Parshottam, (1962) 64 Bom. L.R. 788.
2. (1869) 12 W.R. (Cr.) 7.
3. (1872) L.R. 2 C.C.R. 10.
4. 2003 Cri. L.J. 1539 S.C.
5. (1877) 2 Q.B.D. 410.
6. (1929) 7 Rang. 821.
7. Bamme, L.R. 1 C.C. 156.
misconception of fact on the part of the person consenting. The accused pleading consent must
show that the person consenting understood the risk he was undertaking. In R. v. O'Shay} a woman
of about 42 years consented to an act of sexual connection under the belief that the prisoner was a
doctor and was making medical examination of her. Ridley, J., followed the opinion expressed in
Stephen's Digest of Criminal Law that rape is overcoming a woman by force and that if a woman
gives conscious permission to the act of connection, the act does not amount to rape in English law
though such permission may have been obtained by fraud, and although the woman may not have
been aware of the nature of the act. However, in India such a consent would not be valid consent
under section 90 of the Code. Similar view has later on been expressed in R. v. Williams,2 in
England also.
In R. v. Benett} a person suffering from a foul disease induced a girl ignorant of his condition
to consent to a connection with him. The accused was guilty of indecent assault because the consent
was given under misconception arising out of fraud. There was misconception regarding the effect
of the act. In many cases of rape the effect of fraud on consent has been considered, but in judging
the effect it should be kept in mind that case of rape stands apart from the rest. Mere fraud will not
vitiate consent in a charge of rape.
Consent of lunatics and infant.—In order to vitiate a consent given by a person of unsound
mind, the degree of unsoundness or of intoxication must be the same as would furnish a defence to
a criminal charge on the ground of insanity or intoxication. In R. v. Fletcher,4 it was held that if a
person had connection with a woman of weak intellect, incapable of distinguishing right from
wrong, and the jury found that she was incapable of giving consent, or of exercising any judgment
upon the matter and that (though she made no resistance) the defendant had carnal knowledge of
her by force and without her consent, that is a rape. In Q. v. Barratt,5 it was held that the mere fact
of connection with an idiot girl who was capable of recognising and describing the prisoner, and
who was a fully developed woman who, notwithstanding her imbecile condition, might have strong
animal instincts is not sufficient evidence of rape.
Revocation of Consent.—Consent given can always be revoked but before the act consented
to has commenced. It cannot be withdrawn after the act consented has commenced. For example, if
a surgeon has begun a surgical operation after obtaining the consent he need not stop thereafter
even though the patient revokes his consent subsequently. The right to revoke a consent is not
affected by the fact that consent was given for a consideration. Consent to an act necessarily
includes consent to all its natural consequences.
91. Exclusion of acts which are offences independently of harm caused.—The exceptions in sections
87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause,
or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose
behalf the consent is given.
Illustration
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is
an offence independently of any harm which it may cause or be intended to cause to the woman.
Therefore, it is not an offence "by reason of such harm" ; and the consent of the woman or of her
guardian to the causing of such miscarriage does not justify the act.
COMMENT
1. .19 Cox 76.
2. (1923) 1 K.B. 340.
3. 4 F. & F. 1105.
4. (1859) Bell 63; 28 I.J. (M.C.) 85; 8 Cox 131.
5. 2 C.C.R. 81.
Section 91 provides that consent will only condone the act causing harm to the person giving
the consent which will otherwise be an offence. If the act is an offence independently of the harm
which it has caused then the doer will not be protected by the consent given. For example, causing
miscarriage, public nuisance, offences against public safety, morals* etc. This section is an
exception to the general exceptions contained in sections 87, 88 and 89 of the Code. The principle
underlying this section according to Huda is that "consent may wipe off an injury to the person
consenting, but if the gravamen of the offence is not the injury to the consenting party but
something else, the consent can have no effect on the offence. In the illustration attached with this
section causing a miscarriage is not an injury to the woman alone but is an offence against the life
of the child as well. The mother's consent, therefore, would not condone the offence. Where an
offence is purely a public offence no question of consent arises."1
92. Act done in good faith for benefit of a person without consent.—Nothing is an offence by reason of
any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's
consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is
incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is
possible to obtain consent in time for the thing to be done with benefit : provided—
First.—That this exception shall not extend to the intentional causing of death, or the attempting to cause
death ;
Secondly.—That this exception shall not extend to the doing of anything which the person doing it
knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the
curing of any grievous disease or infirmity ;
Thirdly.—That this exception shall not extend to the voluntary causing of hurt, or to the attempting to
cause hurt, for any purpose other than the preventing of death or hurt ;
Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing of
which offence it would not extend.
Illustrations
(a) Z is thrown from his horse, and is insensible. A, a surgeon finds that Z requires to be trepanned. A,
not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of
judging for himself. A has committed no offence.
(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not
intending to kill Z, and in good faith intending Z's benefit. A's bullet gives Z a mortal wound. A has committed
no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be
immediately performed. There is no time, to apply to the child's guardian. A performs the operation in spite of
the entreaties of the child, intending in good faith, the child's benefit. A has committed no offence.
(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child
from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and
intending in good faith, the child's benefit. Here even if the child is killed by the fall, A has committed no
offence.
Explanation.—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.
COMMENT
The object of section 92 is the protection of medical practitioners who in order to save the
life of a patient have to risk such patient's life or who may have to inflict pain for relieving pain. It
is intended to meet those cases which do not come either under sections 88 or 89. According to
Mayne1 "under section
1. Huda, S.; The Principles of the Law of Crimes in British India, p. 338.
2. Mayne, Criminal Law, p. 197.
92, consent may be Absolutely dispensed with, where the circumstances are such as to render
consent impossible or where, in the case of a person incapable of assenting, there is no one at hand
whose consent can be substituted. The same limitations apply as in section 89. the protection of
persons who perform the surgical operation, which ends fatally or which produces injurious
consequences that were not anticipated, is made by the Penal Code to rest upon the principle of a
consent, express or implied, having been given to the operation."
This section is very much similar to that of section 89. Under the latter the consent is a
substituted consent while under the former it is an implied consent. Implied consent is of two kinds.
First, where it is impossible to obtain consent because the person who may give consent may not be
available for a long time and the operation is articulate or express or immediate.
In the first case consent is presumed because of the emergency of the case. For example, D
meets with a serious road accident and is immediately moved to the hospital in an unconscious
state. In the opinion of the surgeon immediate amputation of one of his limbs is necessary before he
recovers his senses. He amputates the limb without his consent. It will not be an offence. 1 Similarly
if the accident makes a man mad, the amputation of his limb in spite of his resistance would be no
offence. In another illustration Stephen suggests that B is drowning and is insensible. A in order to
save his life, pulls B out of the water with a hook which injures him. This is no offence. In the
second category fall cases of implied consent, i.e., consent given by implication or inferred from the
conduct of the person. For instance, a modest girl may signify her consent to her lover's proposal by
a 'no' uttered so as to denote a modest 'yes'.
For the application of section the following conditions are necessary :—■
(1) act must be done for the benefit of the person;
(2) act must be done in good faith;
(3) act must be reasonable in the circumstances of the case;
(4) act may be done without that person's consent or without the consent of some
person on his behalf :
(a) if the circumstances are such that it is impossible for that person to
signify consent, or
(b) if that person is incapable of giving consent and has no guardian or other
person in lawful charge of him from whom it is possible to obtain consent in time.
Section 92 does not extend to :—
(1) intentional causing of death.
(2) anything which the doer knows to be likely to cause death for any purpose other
than (a) preventing of death or grievous hurt or (b) the curing of any grievous disease or
infirmity.
(3) voluntarily causing of hurt or attempt to cause hurt for any purpose other than
the preventing of death or hurt.
(4) abetment of (1), (2) and (3) above.
Section 92 recognises four exceptions to implied consent. They are very much similar to
those provided under section 89 except proviso third which extends to the voluntary causing of hurt
or to the attempting to cause hurt instead of voluntarily causing of grievous hurt or to the attempting
to cause grievous hurt under section 89.
1. Stephen, Digest of Criminal Law, p. 267.

The reason for this difference is simple and obvious. In section 89, there is consent of the
guardian but under section 92 there is no consent at all. It is only implied by law on account of
certain circumstances.
Benefit.—Explanation to this section provides that mere pecuniary benefit is not benefit
within the meaning of sections 88, 89 and 92. The expected benefit must in all such cases outweigh
the harm to be inflicted, otherwise there is no benefit to the sufferers by such an act. B's wife is
suffering from a certain incurable disease. B is unable to bear her agony and comes to the
conclusion that she would be relieved of her pain if she died as soon as possible. Accordingly B
kills her. In this case B will not get the benefit of section 92 and would he liable for murder.
'B' while bleeding profusely goes to 'A', a surgeon, and there loses consciousness. Thereupon
'A' immediately performs an operation upon him thinking that it will bring back to consciousness.
But 'B' dies immediately after the operation. A is not liable for any offence beqause he has
performed the operation in good faith and for the benefit of B i.e. to save his live. Therefore A is
entitled to claim the protection of section 92 of the Code.
93. Communication made in good faith.—No communication made in good faith is an
offence by reason of any harm to the person to whom it is made, if it is made for the benefit
of that person.
Illustration
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in
consequence of the shock. A has committed no offence, though he knew it to be likely that the communication
might cause the patient's death.
COMMENT
This section is intended to protect the innocent without unduly cloaking the guilty. 1 In order
that protection may be claimed under this section the communication should have been made (1) in
good faith, and (2) for the benefit of the person to whom it is made. Very often it may be necessary
to warn the patient that his end was near so that he might make his will or may arrange his affairs to
his own satisfaction. In such cases the Doctor will be protected under this section if the patient dies
of the shock resulting from the communication. In this section 'harm' means an injurious mental
reaction.2
94. Act to which a person is compelled by threats.— Except murder, and offences against
the State punishable with death, nothing is an offence which is done by a person who is
compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension
that instant death to that person will otherwise be the consequence : Provided the person doing
the act did not, of his own accord, or from a reasonable apprehension of harm to himself
short of instant death, place himself in the situation by which he became subject to such
constraint.
Explanation 1.—A person who, of his own accord, or by reason of a threat of being beaten, joins a gang
of dacoits, knowing their character, is not entitled to the benefit of this exception, on the ground of his having
been compelled by his associates to do anything that is an offence by law.
Explanation 2.—A person seized by a gang of dacoits, and forced, by threat of instant death, to do a
thing which is an offence by law ; for example, a smith compelled to take his tools and to force the door of a
house for the dacoits to enter and plunder it, is entitled to the benefit of this exception.
COMMENT
'Actus me invito factus non est mens actus' ('an act done by me against
2. Veeda Menez.es v. Yusqf Khan, 1966 Cr. L.J. 1489 (S.C.).
my will is not my act') is a well known maxim of law. It means that an involuntary act is no
offence. In other words a voluntary act is necessary to constitute a crime. But the law that
involuntary act is no offence is subject to some important limitations. The voluntary nature of an act
may be affected either by the act being done under threat of injury or other kind of mental
compulsion or under actual physical compulsion in which case the man acts without a will and is
nothing more than an instrument in the 'hands of others. For example, A catches hold of B and takes
possession of all the money in his pocket, and says T would not return you the money unless you
pick the pocket of C B picks the pocket of C in order to get back his money. Here B acts under a
kind of mental compulsion. But such a kind of mental compulsion is not considered by law to be a
sufficient excuse for a crime.
Indian Law.—According to Mayne1 compulsion is of two kinds : first, arising from the act of
an authority which rightly or wrongly has for the time being superseded the government of the
country and second, from the acts of private persons, who without any show of legality proceed in
open defiance of law. Section 94 refers to the second type of cases. Dr. H.S. Gour has suggested
that in order to justify an act under section 94 three points must be proved,2 namely :—
(a) that the person did not voluntarily expose himself to the constraint;
(b) that the fear which prompted his action was the fear of instant death;
(c) that the act itself was done at a time when he was left with no option but to do it
or die.
According to section 94 no amount of mental compulsion arising out of threat of injury can
under any circumstances excuse the causing of death or the causing of any offence against the State
punishable with death. To this extent the restriction is absolute. The law says in effect "if you have
a choice between your death and the death of another person, you must choose the former." No
amount of mental compulsion, no pressure of necessity, however great, can alter the situation. As
regards the offences against the state punishable with death, it is the right of the State to ensure its
own safety by enacting deterrent punishment, so that if a person wages war against the Government
of India, though under compulsion, he cannot be exempted from criminal responsibility on the
ground that he joined the rebels under compulsion. But any other offence short of murder and
offences against the State punishable with death, will be excused, if the threat under which the act is
committed is one which reasonably causes the apprehension of instant death, provided, however,
"the person doing the act did not of his own accord or from a reasonable apprehension of harm to
himself short of instant death, place himself in the situation by which he became the subject of such
constraint."
From the language of the section and the explanations given, it appears that compulsion
arising from mere necessity is not meant to be included. A man on the verge of death by starvation
may not plead his necessity as an excuse for theft.
English Saw.—The English law on the subject is somewhat different.
2. Gour H.S., Penal Law of India, Vol. I (7th Ed.) p. 416.
English law permits a man to save his life at the expense of the State but the Indian law does not. In
case of murder and offences against the State compulsion under Indian Law does not even go to
mitigate the offence.' In 1746, McGrowther was tried for high treason for having joined the Duke of
Perth in arms against the King.2 He pleaded in defence that being a tenant of the Duke he had been
compelled by him to join the rebel army which had threatened to burn his house and property and
that several of Dukes' men had come to him and threatened him with destruction and bound him
with cords till he consented to serve in the rebel army. It was held that : "the only force that doth
excuse is force upon the person and present fear of death and this force and fear must continue all
the time the party remains with the rebels. It is incumbent on every man, who makes force his
defence, to show an actual force, and that he quitted the service as soon as he could."
Another difference between English law and Indian Law had existed in regard to marital
coercion. In English Law marital coercion was recognised as a defence in offences other than
treason or murder committed by a wife in the presence of her husband. This defence has been
abolished by section 47 of the Criminal Justice Act; 1925. If a wife committed an ordinary felony in
her husband's actual presence, the common law raised a prima facie presumption that she had
committed it under such a compulsion which entitled her to be acquitted, even though there may be
no proof of actual intimidation by him. But if the crime was committed by her not in her husband's
actual presence, his previous orders or threats afforded her no defence. This artificial presumption
did not apply in major offences. The tendency of the modern courts is to do away with such
presumption and to hold a married woman liable for a crime committed in the presence of her
husband, unless she can show actual coercion by him. There are some cases in which an act,
otherwise criminal, if done by the wife will not be a crime if wife and husband are the only partners
in it. For example, wife and husband cannot be convicted of a criminal conspiracy if they were the
only parties to it.3 Furthermore, in English law neither spouse can prosecute the other for a private
libel even if'they are living apart.4 Under Indian Law even though the co-conspirators are wife and
husband, even they are punishable. Similarly harbouring by the wife of husband who has
committed a crime or vice-versa is also not punishable both under the English and Indian Law.5
Cases.—Except murder and offences punishable with death compulsion is an excusable
defence if the act is done under the fear of instant death. Such a fear must be present at the time of
doing the act. If it precedes the doing of the act it will be no defence. In Magan Lai's case,6 it was
held that the witnesses, who in order to avoid pecuniary injury or personal molestation had offered
or given bribes to a public servant, were abettors of the offence of taking an illegal gratification,
another evidence could be treated as that of accomplices.
In Devji Govindji1 it was held that "a policeman is no more justified in torturing a man to-
death, simply because he had been ordered to do so by his superior than a robber can justify his act
1. hwa Munda, A.I.R. 1938 Pat. 258.
2. McGrowther, (1746) 18 St. Tr. 301.
3. Mawji v. R., (1957) A.C. 126.
4. R. v. Lord Mayor of London, (1886) 16 Q.B.D. 772.
5. For Indian Law please refer to Sec. 212 of the Indian Penal Code, 1860.
6. 14 Bom. 115.
7. 20 Bom. 215.
on the plea that he had to obey his fellow confederates." Therefore, the principle followed in Indian
case is that "no man from a fear of consequences to himself short of apprehension of immediate
death arising from threat of injury has a right to make himself a party to committing mischief on
mankind.1
In Bachchan Lai v. State2 the evidence showed that the accused continued to be under the
threat of instant death not only when he held the legs of the deceased but also when he helped the
murderers in removing the body and concealing it, despite the accused's failure to mention in his
statement that he protested against conveying the body and was again threatened with death. It was
held that the accused's conduct in removing the body was also on account of his fear of instant
death at the hands of the murderers if he refused to do so. In another case it was held that where a
person commits the offence of abetment of murder by holding the legs of the deceased under threat
of being killed himself for non-compliance, he would be protected under section 94. 3 Similarly
where a servant removed the dead body of the deceased under coercion by his master, it was held
that he committed no offence as his act of removing the dead body was protected under this
section.4 Thus it is clear that although murder committed under a threat of instant death is not
excused, abetment of murder will be excused.
95. Act causing slight harm.—Nothing is an offence by reason that it causes, or that it is intended to
cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary
sense and temper would complain of such harm.
COMMENTS
This section is based on the principle contained in the maxim de minimis non curat lex which
means that the law takes no account of trifles. No reasonable man complains of mere trifles. Huda
says that no man can pass through a crowded thoroughfare without treading on somebody's toes or
without clashing against somebody and no reasonable man would complain of such small
annoyances. The word 'harm' has been used in this section in a wide sense and it includes physical
injury also. This exception applies not only to acts which are accidental but also to deliberate acts
which cause harm or are intended to cause harm or known to be likely to cause harm. 5 The law does
not concern itself to mattes too trivial to demand its notice which men in their ordinary frame of
mind do not complain.6 Whether an act which amounts to an offence is trivial would depend upon
the nature of the injury, the position of the parties, the knowledge with Which the act is done.7
The following acts are covered by this section :
(1) Where a person takes pods almost valueless from a tree standing on
Government waste land.8
(2) Where the accused committed theft of a cheque of no value.9
1. Huda S., The Principles of The Law of Crimes p. 343.

2. A.I.R. 1957 All. 184.
3. Uma Dasi Devi v. Emp., I.L.R. 52 Cal. 112.
4. R. v. Ram Autar, A.I.R. 1925 All." 315.
5. Veeda Menezes v. Yusuf Khan, A.I.R. 1966 S.C. 1773.
6. Devendrappa, 1970 Cr. L.J. 1188.
7. Veeda Menezes v. Yusuf Khan, A.I.R. 196d S.C 1773.
8. Kasyabin Ravji, (1868) 5 B.H.C. (Cr. C.) 35.
9. Ethirajan, 1955 Cr. L.J. 816.
(3) Where the plaintiff complained of the harm caused to his reputation by the
imputation that he was travelling with a wrong ticket.' The following acts are not trivial in
nature :—
(1) Where a blow was given across the chest with an umbrella by a dismissed
policeman to a District Superintendent of Police because his application to reconsider his
case was rejected.2
(2) Where the accused tore up a paper which showed a money debt due from him to
the prosecutor though it was unstamped, and therefore not a legal security.3
(1) Where a respectable man is taken by the ear.4
(3) Where an advocate while cross-examining a witness used filthy words
exhibiting disrespect or indignity towards the mother of the witness. 5 Cases.—In State of
Maharashtra v. Taherbhai? the two accused persons.
were found selling hard boiled sugar confectionery in contravention of the rules framed under the
Prevention of Food Adulteration Act. Section 95 was pleaded in defence. It was held that section 95
is not applicable to any offence under the Prevention of Food Adulteration Act. A slight deviation
from the standard fixed under the rule is not going to cause slight harm as contemplated under
section 95.
In Bichittranand v. State of Orissa,1 the accused had stored for sale mustard oil of a quality
slightly inferior to the purity standard fixed by the rules. It was urged that the variation was only
slight and the appellant should be given the benefit of section 95. The plea was rejected and the
conviction was confirmed.
In State of Karnataka v. Labo Medicals? the respondent was prosecuted under the Essentials
Commodities Act, read with the Drugs (Price Control) Order. It was pleaded that the amount
involved was only about 60 paise and as such the benefit of section 95 be given. Rejecting this plea
the High Court observed that if this was an offence of the classical type, say for example theft of a
few paise, we should have certainly conceded to the submission made by the learned counsel. We
are dealing with a socio-economic offence. We are concerned with only one bill issued by the firm.
Several other bills might have escaped from detection. Hence the offence cannot be considered a
trifle one.
In Kishori Mohan v. State of Bihar? the fraternity of the non-gazetted employees, who were
on strike made a fun of the complainant who was a loyalist co-worker and had not participated in
the strike. A photograph of the loyalist worker was taken with a garland of shoes around his neck,
No photograph was shown to the complainant and it was not published also. In a prosecution under
section 504 it was pleaded that the act was done with a view to be fooling a member of the
fraternity and was trivial in nature. The plea was not accepted and it was held that the complainant
had been subjected to indignity although the court took a lenient view in awarding punishment by
merely admonishing the accused.
OF THE RIGHT OF PRIVATE DEFENCE
1. South Indian Railway Co. v. Ramakrislma, (1889) 13 Mad. 34.
2. Shea Gholamulla, (1875) 24 W.R. (Cr.) 67.
3. Ramasami, (1888) 12 Mad. 148.
4. Shoshi Busan Mukerjee v. Walmsley, (1897) 1 C.W.N, cxxxiv.
5. Bheema Rao v. Venkat Rao, (1964) 2 Cr. L.J. 692.
6. 1978 Cr. L.J. 820.
7. 1978 Cr. L.J. 1050.
8. 1978 Cr. L.J. 1837.
9. 1976 Cr. L.J. 654.
96. Things done in private defence.—Nothing is an offence which is done in the exercise of the right
of private defence.
COMMENT
'A man is justified in repelling force by force in defence of his person, habitation or property
against one who manifestly intends and endeavours by violence or surprise to commit a felony upon
either,' said Russel. In these cases he is not obliged to retreat, but may pursue his adversary till he
finds himself out of danger and if in a conflict between them he happens to kill him, such killing is
justifiable. The right is recognised in every system of law and the extent of the right varies in
reverse ratio to the capacity of the State to protect the life and property of the subject. 1 The reason is
obvious, namely the duty to. protect the life and property of the subject is primarily of the State. But
no State, howsoever large its resources, can provide protection in all situations. Therefore, this
necessary limitation on the resources of the State has given to the subject pro tanto the right to take
the law into his own hands and to provide for his own safety.
According to Mayne2 the whole law of self-defence rests on the following four propositions :
(1) Society undertakes, and, in the great majority of cases, is able to protect private
persons against unlawful attacks upon their person and property;
(2) Where the aid of society can be obtained, it must be resorted to;
(3) Where the aid of society cannot be obtained, individual may do everything
necessary to protect himself;
(4) The violence used must be in proportion to the injury to be averted and must not
be employed for the gratification of vindictive or malicious feelings.
However, there are two important limits on the right of private defence. The first is that the
right of private defence can under no circumstances justify anything which strictly is no defence but
an offence. Secondly, the right cannot be claimed when you have yourself courted the attack.
In Laxman v. State of Orissa3 it was held that the right of private defence, is available only to
one who is suddenly confronted with immediate necessity of averting an impending danger not of
his own creation. The necessity must be present, real or apparent.
It was held in Gordhan v. State of Rajasthan* that the right of private defence should be
based on positive material. It cannot be made out merely on surmises and conjectures. The presence
of injuries on the person of an accused is only a circumstance to be taken into consideration while
evaluating the plea of private defence. Apart from that, the disproportion of injuries received by the
members of the complainant party on one hand and the accused on the other hand, is a factor to be
taken into consideration. Therefore, plea of private defence should not be readily assumed merely
because the accused had sustained insignificant injuries.
It was held in Arun v. State' of Maharashtra} that availability of right of private defence is a question of
1. Huda, S., The Principles of Law of Crimes, p. 382.
3. 1988 Cri. L.J. 188 (S.C).
4. 1987 Cri. L.J. 541 (Raj.).
fact to be determined on facts and circumstances of each case. It is not necessary for accused to plead in so
many words that he acted in self defence. If circumstances show that right of private defence was legitimately
exercised, it is open to Court to consider such a plea. The burden of proof of such right is on accused. In absence
of proof, it is not possible for Court to presume truth of plea. Court shall presume absence of such
circumstances. Burden on accused stands discharged by showing preponderance of probabilities in favour of
that plea. The right of private defence cannot be based on surmises and speculation. In order to decide whether
the right of private defence is available or not entire incident must be examined with care and viewed in proper
setting.
It was observed in Arun v. State of Maharashtra? that right of private defence is essentially a defensive
right circumscribed by governing statute, i.e., Indian Penal Code. It should not be allowed to be pleaded or
availed as a pretext for a vindictive, aggressive or retributive purpose of offence.
In order to find whether right of private defence is available or not, the injuries received by the accused,
the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the
accused had time to have recourse to public authorities are all relevant factors to be considered.
There is no right of private defence under the Code against any act which is not in itself an offence under
it.3 The right of private defence can be exercised only to repel unlawful aggression and not to retaliate. 4 An act
done in the exercise of the right of private defence is not an offence and does not, therefore, give rise to any
right of private defence in return. 5 However, it cannot be said with certainty whether the offender too has a right
of private defence against an act done in exercise of the right of private defence where such right is exceeded
and it poses substantial danger to him. According to some his right of private defence is restricted by the second
limitation stated above that "the right cannot be claimed when a person had himself courted the attack." But
according to some others he has a right of private defence because the other acting in the exercise of his right of
private defence shall forfeit the protection the moment he exceeds the right given to him under law. So long as
the defender's act is within the limits laid down in the Code the aggressor shall have no right of private defence
arising out of his own act of aggression, but the moment the limit of the right of private defence provided under
the Code is exceeded, the act shall become an offence affording a right of private defence to the other party. For
example, A entered the house of B with the intention of committing theft. B and other members of his family
surrounded and attacked A with lathis. Finding his life in danger A whipped his revolver and fired causing the
death of B. Here A will be liable for committing murder because the situation which gave him the right of
private defence as he apprehended danger of his own death was the result of his own wrongful act. As against
this it is argued that because B has exceeded his right of private defence of property which the law affords him
in case of apprehension of theft, A was justified in defending his life. It is submitted that this view appears to be
erroneous because the law does not give this right to an offender. In this case the thief had already come
prepared with a revolver that he had the intention of not only committing theft but if in committing theft he in
any way finds himself in danger, to use the revolver to save himself.
A person who is an aggressor and who seeks an attack on himself by his own aggressive attack cannot
rely upon the right of private defence. In State of U.P. v. Pussu,6 B was fired upon by P and S but P was
deprived of his rifle due to intervention of some persons. Subsequently, however, 'P' managed to obtain the
1. (2009) 2 Cri. L.J. 2065 (S.C.).

2. ((2009) 2 Cri. L.J. 2065 (S.C.).
3. Ganourilal Das, (1889) 16 Cal. 206 at p. 218.
4. Rajesh Kumar v. Dharamvir, 1997 Cri. L.J. 2242 (S.C.).
5. Gorie Shanker v. Sheikh Sultan, (1917) 18 Cri. L.J. 864; Narayanan, 1956 Cri. L.J. 89.
6. 1983 Cri. L.J. 1356 (SC).
pistol of S and' fired at B. who died while he was being carried to the hospital. P was held to have no right of
private defence in the circumstances.
In Ram Raj Shukla v. State of Madhya Pradesh} the deceased was cultivating part of land along with
two labourers and the accused persons were also cultivating the same land in the other comer. In the evening
when the deceased and his labourers had retired and were proceeding towards their houses, the accused persons
attacked and killed one of them. It was held that the right of private defence does not permit a right of
retaliation. Since the accused persons knew that the deceased has been cultivating the same land for the whole
day but they did not take any immediate action, it was only in the evening that they chose to attack. In this case
attack was by way of retaliation than for protection of property. Further the accused and his brother came
prepared on the spot and attacked deceased while he was retreating home and was carrying his bullocks.
Conviction under section 304, Part II of the Penal Code was upheld.
In Buta Singh v. State of Punjab} the deceased, (Balbir Singh) was armed with Takwa (axe), B (Surjan
Singh) was armed with Barchi, C (Buta Singh) was armed with a Dang and two others Meeta and Karnail were
empty handed. The above along with Duleep Singh, a tractor. driver, went to till a disputed land. When the
appellant Buta Singh saw the deceased and his companions attempting to till the land, he sent his minor son
Gurdev Singh aged about 13 years, to warn the tractor driver that the land was disputed one and he should not
till the same. On tractor driver then refusing to till, the deceased and his companions chased the boy to his dera
which was near a tubewell where his father Buta Singh and mother Gurbachan Kaur were present. The deceased
and his companions attacked the appellant, his wife and son. As a result they also picked up weapons in self
defence and caused injuries to the prosecution witnesses and the deceased. Both sides suffered injuries. It was
held that the accused cannot be said to have exceeded his right of private defence. He could not have weighed in
golden scales number of injuries required to disarm the assailants. The appellant and his wife were defending
themselves and they had a right of private defence.
In Vijayan v. State} six persons were charged and tried for the offence of murder of Natrajan but only
one was convicted and the rest were acquitted. Natrajan and his brother were residing in a mohalla in Erode
town and Periyanna was their neighbour. He and his children were residing in adjacent houses. Appellant
Vijayan is one of the son of Periyanna. PW-1 Kandaswamy and deceased Natrajan laid stone stabs over a
drainage which passed through a private passage leading to the houses of above persons. The construction
caused stagnation of water during rainy season and it affected Periyannas' building. So his sons requested the
other party to remove the stone slabs but their request was heeded to.
On the morning of 5-10-1984 appellant Vijayan and his brother forcibly removed the stone slabs. On
coming to know of it PW-1 Kandaswamy along with his brother Natrajan and father Kuppuswamy went to the
house of Pariyanna and questioned their act. It lead to an altercation during which one belonging to the
appellant's faction slapped twice on the cheek of Kuppuswamy, father of PW-1. On intervention of some
neighbour PW-1 and his party went-back to their house. All this happened in the forenoon. At about 2-30 p.m.
the deceased Natrajan was walking along the road. He was followed by Kandaswamy and Chenniappan. As they
passed the house of Periyanna six assailants came out of that house armed with knives, spear and sickles etc.
Sensing danger Natrajan returned towards the opposite direction but the assailants chased him and pushed him
down. Thereafter he was stabbed by the appellant with a knife on the back and also on the front chest.
Appellants brother Thilakan A-2 aimed a blow with a spear on Natrajan but it missed the target and fell on the
crown of appellants head who also fell down. Natrajan who sustained stab injury died on the spot.
The defence version is that at about 2-30 p.m. deceased Natrajan and brother PW-1
1. 1992 Cri. L.J. 1223

(M.P.).
2. 1991 Cri. L.J. 1464
(S.C).
Kandaswamy accompanied by a gang of others went to the house of
Periyanna in retaliation for the forenoon incident. They attacked the
appellant which was resisted but still the appellant sustained injuries. It
was then that the appellant and others acted in self-defence. Prosecution examined three
witnesses PW-1 Kandaswamy, PW-2 Chenniapan and PW-3 Poosappan and all the three supported the
prosecution version as stated above. Trial Court and High Court accepted their evidence. PW-6 Dr. Velmurugan
was examined and he opined that the first injury was necessarily fatal. On the defence side also one Doctor was
examined but he said that x-ray did not reveal any fracture for the appellant. His evidence was not of much use,
the other defence witness a lady, namely Devki stated that she and PW-3 Poosappan were at Salem a different
town on the day of occurrence i.e. on 5-10-1984 afternoon for execution of some sale document in connection
with a lorry transaction. A sale receipt bearing signature of PW-3 was produced. PW-3 then asked about lorry
transaction admitted having sold the lorry to DW-2 Devki but denied having gone to Salem on 5-10-1984 for
that lorry deal. PW-3 Poosappan was recorded as present at the scene of occurrence when the inquest was held
by the Investigating Officer. The trial Court and the High Court did not rely on the sale receipt because it was
possible that signature of PW-3 was obtained much earlier with blank date and the document was prepared on
that date. Moreover PW-3 was shown present at place of occurrence in inquest report which was prepared
between 5 p.m. to 8 p.m. on 5-10-1984.
It was held by the Supreme Court that the sale receipt is not unreliable merely because prosecution
witness was noted as present in inquest report. Presence of prosecution witness Poosappan at the place of
occurrence was doubtful. It was further pointed out that injuries sustained by accused were not satisfactorily
explained. Therefore the defence plea that complainant party trespassed into house of accused and attacked in
retaliation of earlier incident appears to be probable. The defence version had come on official record at 3 p.m.
when appellant told that to PW-6 Doctor. The appellant would not have sufficient time to connect a false story
so soon after the incident. The prosecution version that the blow given by second accused Thilakan missed
Natrajan and hit the crown of appellant was not acceptable because even assuming that Thilakan had been a bad
striker it is difficult to conceive that such an aim fumbling whacking would have landed on the crown of the
another man's head. As regards the plea of exceeding the right of private defence is concerned it was observed
that in the broad spectrum of the case it is not probable to precisely measure the frontier upto which the right of
private defence could have been stretched. Therefore the 'defence of right of private defence was accepted, the
conviction was set aside and the accused was acquitted.
It was held in Ranveer Singh v. State of M.P.} that in order to avail the right of private defence it is not
necessary to raise specific plea of as to that right. The burden of proof of availability of right of private defence
lies on accused. This burden stands discharged by showing preponderance of probabilities in favour of that plea.
Proof beyond reasonable doubt is not necessary. It was also pointed out that the right of private defence
commences as soon as a reasonable apprehension of danger to body arises from an attempt or threat, to commit
the offence. It ceases as soon as cause for reasonable apprehension disappears. Force used in self defence need
not be weighed in golden scales. Such situations have to be pragmatically viewed and not with high powered
spectacles or microscopes to detect slight or even marginal overstepping.
No right of private defence against act of self-defence.—In Pammi v. State of M.P.,2 the appellant
went to the house of one of the partners of a liquor business alongwith other partner. The partners were having a
dispute over the settlement of accounts. The group entered the house of K.K. Jaiswal late in the night to settle
the accounts and were armed. The deceased tried to pacify the parties but the group fired at the deceased who
dies. Another person reached the spot and was also shot at by the appellant. But police later on nabbed the
accused. The accused pleaded the right of private defence under section 96, IP. Code which was allowed by the
Sessions Court but was reversed by the High Court. The Supreme Court dismissing the appeal upheld the
judgment of the High Court and held that the aggressor cannot avail of the right of private defence as entry in
the house of K.K. Jaiswal during night time and that too armed with weapons was an act of aggression. And no
right of private defence can be claimed against an act of self-defence.
1. (2009) 2 Cri. L.J. 1534 (S.C.).
2. A.I.R. 1998 SC. 1185.
In Chacko and others v. State of Kerala,1 Somen, the deceased reached the scene armed with
chopper. Somen reached there when he found that his brother was in great peril as surrounded by armed
assailants. It was held that no aggressor can claim a right of private defence merely on the premise that the
deceased reached the scene armed with chopper particularly when it is proved that the deceased reached there
when he found his brother being surrounded by armed assailants.
In Rizan v. State of Chhatisgarh,2 it was alleged that appellant-accused persons assaulted, injured
with axe and stick while other co-accused persons also hit him with stick. There was credible evidence
regarding assault made by appellants. Accused also sustained injuries and the prosecution failed to explain the
injuries sustained by the accused. Accused pleaded to have acted in private defence. It was held that the accused
can establish his plea of private defence by reference to circumstances transpiring from the prosecution evidence
itself. In such a case the question is of assessing the true effect of the prosecution evidence and not a case of
accused discharging any burden. When the right of private defence is pleaded it must be reasonable and
probable version satisfying the court that the harm caused by the accused was necessary for either warding off
the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of
establishing the plea of self defence is on the accused and the burden stands discharged by showing
preponderance of probabilities in favour of that plea on the basis of the material on record. In order to find
whether right of private defence is available or not the injuries received by the accused, the imminence of threat
to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have
recourse to public authorities are all relevant factors to be considered. Thus running to the house, fetching a tabli
and assaulting the deceased are by no means a matter of course. These facts bear stamp of a design to kill and
take the case out of the purview of private defence.
It was held in Naveen Chandra v. State of Uttaranchal,3 that in order to avail the right of private
defence the entire incident must be examined with care and viewed in its proper setting. Presence of injuries on
body of accused do not raise presumption of availability of such right. Mere non explanation of injuries by the
prosecution may not affect the prosecution case in all cases.
It was also held that specific plea of right of private defence by accused is not necessary. But if pleaded
the burden of proof is on the accused and such burden stands discharged by showing preponderance of
probability. The accused need not prove defence beyond reasonable doubt.
It was held in Shajahan and others v. State of Kerala,4 that the burden of proving self defence lies
on accused. It stands discharged by showing preponderance of probabilities in favour of that plea on the basis of
material on record. It was further observed that the right of private defence is essentially a defensive right
circumscribed by the governing statute i.e., Indian Penal Code. It is available only when circumstances clearly
justify it. It cannot be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of
offence.
97. Right of private defence of the body and of property.—Every person has a right, subject to the
restrictions contained in section 99, to defend—
First.—His own body, and the body of any other person, against any offence affecting the human
body ;
Secondly.—The property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery, mischief or criminal
1. 2001 Cri. L.J. 146 (S.C).
2. 2003 Cri. L.J. 1226 S.C.
3. 2007 Cri. LJ 874 (S.C).
4. 2007 II Cri. L.J. 2291 (S.C).
trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
COMMENT
This section deals with the extent of the exercise of the right of private defence. Section 99
provides the limitations on the right. These two sections combined together lay down the principles
of the right of private defence. The right is a right of defence both of person and property, not
necessarily one's own person and property but also of the person and property of others. English
law in one sense had at one time been narrower than Indian Law. In England a man was justified in
using force against an assailant in defence of himself and of his immediate kindred. Later on those
in immediate protection of a person were also added. The circle has been gradually expanding and
the right is limited to persons who are in a sort of community of interest, i.e. both civil and natural
relations are included, such as wife-husband, master-servant, parent-child and landlord-tenant etc.
The American law is wider. A man. may do for another what he may do for himself. So is the
Indian Law.
In India every person has the right to defend (i) his own body and the body of any other
person against any offence affecting human body; and (ii) the property, movable or immovable of
himself or of any other person against theft, robbery, mischief, or criminal trespass or attempts to
commit any of these offences. Dacoity is only an aggravated form of robbery and is, therefore, not
expressly mentioned, but it was necessary to mention robbery as besides theft it includes extortion.
Under section 97 "every person has a right to defend". The right to protect one's own person
and property against the uncalled for aggressions of others is an inherent right of men. A man owes
a duty to society to protect person and property of others. It concerns the public safety that every
honest man should consider himself as the natural protector of every other.'
Right of private defence to be pleaded.—Normally the accused must plead the right of
private defence. But even if an accused does not plead self-defence it is open to the court to
consider the plea of private defence if it arises from materials on record. 2 The burden on an accused
person to establish the plea of self-defence is not as onerous as the one which lies on the
prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the
accused need not establish the plea to the hilt and may discharge his onus by establishing a mere
preponderance of probability either by laying basis for that plea in the cross-examination of the
prosecution witness, or by adducing defence evidence.3
It was held in Sekar v. State? that whether in a particular set of circumstances, a person acted
in the exercise of the right of private defence, is a question of fact to be determined on the facts and
circumstances of each case. An accused pleading right of private defence is not required to call
evidence; he can establish his plea by reference to circumstances transpiring from the prosecution
evidence itself. The question in such a case would be a question of assessing the true effect of the
prosecution evidence and not a question- of the accused discharging any burden.
In V. Subramani v. State of Tamil Nadu? on 21-12-1993 one Siva sister's son of Ravi Kumar
was grazing the buffaloes of A-l in the land belonging to Pw-l's family. On seeing this Pw-5
assaulted him which was reported to A-l who questioned the conduct of Pw-5 in assaulting him. On
hearing this news deceased and his brother
1. Bentham, Principles of the Penal Code, p. 269.
2. Munshi Ram v. Delhi Administration, A.I.R. 1968 S.C. 702; Rajikant, (1970) 2 S.C.C. 866.
3. Salim Zia v. State o f U.P., (1979) 1 Cri. L.J. 323; See also Mohinder Pal v. State o f Punjab, (1979) 1
Cri. L.J. 584.
4. 2003 Cri. L.J. 53 (S.C).
5. 2004 Cri. L.J. 1727 (S.C).
Pw-6 intervened and they were also assaulted, thereby straining the relationship.
On 22-12-1993 at about 8 a.m. when Pw-1 and 2 were brushing near the common well they
saw A-l was passing nearby. Pw-1 questioned him whether it was fair on his part to assault Pw-5
having grazed the buffaloes in their land. There was a wordy altercation between A-l and Pw-1 in
the presence of Pw-2. A-l became furious, went inside the house of A-6 and brought a stick and
beat Pw-1 on his back. Aggrieved by this conduct of A-l, the two brothers Pw-1 and Pw-2 chased
him and A-l took shelter in the house of A-6. Then Pw-1 and Pw-2 started shouting in front of the
house of A-6. On hearing the threatening calls A-3 yelled, that Pws. 1 and 2 should be assaulted
even if a murder takes place since they had stepped into their house and shouted. Encouraged by
support A-2 assaulted Pw-1 over his head. A-4 assaulted with a reaper and A-l assaulted with iron
rod over his head. On seeing this Pw-3 went there to their rescue. Father of Pws. 1, 3 and 5 rushed
to their rescue. On seeing him A-3 and A-5 assaulted him over his head with yokes, while A-6
caught hold of him, causing serious injuries. Pw-1 chased the accused taking a stick available from
scene. Pw-6 on hearing that his brother was assaulted came there, saw the injured and chased the
accused away and in that process A-l also sustained injuries. The incident was witnessed by Muthu
Krishnan and Nagappan. The deceased in injured condition was taken to hospital at 11.30 a.m.
where he died at about 12-10 p.m. on 22-12-1993.
Considering the background facts stated above it was held that accused persons had not acted
in exercise of light of private defence. The residual plea that only a single blow was given to the
deceased by a wooden yoke of light weight, it cannot be laid down as a general rule of universal
application that whenever death occurs on account of a single blow, section 302 of I.P.C. is ruled
out, the fact situation has to be considered in each case. In view of the above facts conviction was
altered from section 302 of I.P.C. to Section 304 Part I of I.P.C.
It was also held that the number of injuries is not always a safe criterion for determining as to
who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the
body of the accused persons, a presumption must necessarily be raised that the accused persons had
caused injuries in exercise of the right of private defence. The defence has to further establish that
the injuries so caused on the accused probabilise the version of the right of private defence. Non-
explanation of injuries sustained by the accused at about the time of occurrence or in the course of
altercation is a very important circumstance. But merely non explanation of the injuries by the
prosecution may not affect the prosecution case in all cases. In order to find whether right of private
defence is available or not, the injuries received by the accused, the imminence of threat to his
safety, the injuries caused by the accused and the circumstances whether the accused had time to
have recourse to public authorities are all relevant factors to be considered.
It was also observed that in moments of excitement and disturbed mental equilibrium it is
often difficult to expect the parties to preserve composure and use exactly only such force in
retaliation commensurate with the danger apprehended to him. Where assault is imminent by use of
force, it would be lawful to repel the force in self-defence and the right of private defence
commences as soon as the threat becomes so imminent. Such situations have to be pragmatically
viewed and not with high powered spectacles or microscopes to detect slight or even marginal over-
stepping. But, if the fact situation shows that in the guise of self-preservation, what really has been
done is to assault the original aggressor, even after the cause of reasonable apprehension has
disappeared, the plea of right of private defence can legitimately be negatived. The right of private
defence is essentially a defensive right circumscribed by the governing statute i.e., the I.P.C.
available only when the circumstances clearly justify it. It should not be allowed to be pleaded or
availed as a pretext for vindictive, aggressive or retributive purpose of offence.
Applying the above principle it was held that no right of private defence was available to the
accused persons.
In defence of person.—In Nur Miah? the accused, who was attacked by a number of men
armed with various weapons, snatched away a weapon from one of them and struck him with the
weapon causing his death. It was held that the accused had a right to private defence of body
although at the time the deceased man was unarmed. In a case where a woman was forcibly carried
away against her will, those interested in her could not be reasonably expected to wait till the matter
was reported to the police and action was taken by public authorities. The right of private defence
was not affected even if forcible removal was by her own husband.2
In defence of property.—Every person has a right to defend ihe property of himself or of
any other person. Does it mean property rightfully belonging to a person or property which is in his
possession? It means the property in one's possession or without possession no trespass on any
immovable property can amount to theft, robbery or mischief and no trespass on immovable
property could amount to criminal trespass. Where a person had seized a cow with the object of
impounding it and was attacked by the owner it was held that the person who had seized the cow
had the right to defend his possession. Here, there was only possession but no right of property. The
cow belonged to the assailants and the person who seized the cow had nothing but possession to
defend.3 An illegal seizure of cattle with a view to impound them is theft and persons attempting to
resist the seizure by force, act in the exercise of the right of private defence of property and are as
such entitled to the defence under this section.4
A rightful owner is entitled to turn out physically a trespasser or one trying to infringe upon
his rights. A person exercising this right should, however, not use more force than is reasonable to
defend his possession from a trespass. 5 Where a trespasser enters upon the land of another, the
person in whom the right of possession is vested while the trespasser is in the process of acquiring
possession may turn the trespasser out of the land by force and if in doing so he inflicts such
injuries on the trespasser as are warranted by the situation he commits no offence.6
In State of Haryana v. Sher Singh? Phool Singh (P.W. 5) cousin of the deceased Bhim Singh was in possession of the disputed land as tenant for cultivation from
Rameshwar, the father of Kishan Chand, who filed the suit for pre-emption and got a decree in his favour. Rameshwar also executed an agreement of sale in favour of Sher
Singh and received part of sale consideration. Injunction was also obtained by accused against deceased. The complaint was to the effect that deceased and Phool Singh in
contravention of the order of S.D.M. harvested the wheat crop. The accused armed with weapons viz. bhalas, gandasas or lathis came to the land to take forcible possession
and also let loose the catties in field resulting in damage of standing crop. Then the deceased and four others namely, Phool Singh, P.W. 5, Zile Singh, P.W. 6, Dewan Singh.
P.W. 11 and Ghuman Singh reached the spot. When Bhim Singh, the deceased questioned their high handed acts, four of the accused encircled him and started inflicting
injuries with their weapons. P.W. 6 tried to rescue the deceased but he was also attacked by four of the accused who inflicted serious injuries and so also P.W. 11 Dewan Singh and
Ghuman Singh were inflicted injuries by four other accused when they tried to intervene. Bhim Singh succumbed to the injuries on the spot. Bhala blow given by Dalai Singh on the chest of
Bhim Singh proved fatal.
The trial court accepted the prosecution version that deceased party was in possession of disputed land.
But the High Court considering decree of pre-emption obtained by the father of accused, entries in khasra,
injunction obtained by accused against deceased, and failure of prosecution to give evidence regarding
allegation that accused had let in catties in the field held that accused were in possession of disputed land and
the prosecution case was doubtful. The High Court convicted one Dalai Singh under section 304 Part I as he
1. (1945) 50 C.W.N. 169.
2. Daya Ram, (1952) 1 M.B.L.R. 13.
3. Huda, S.; The Principles of the Law of Crimes, p. 391.
4. Madra, A.I.R. 1946 Nag. 326; Lokenath v. Rahas Beura, (1963) I Cri. L.J. 308; Maide Khan, 1965 Cri.
L.J. 476.
5. Ram Krishna Singh, A.I.R. 1922 Pat. 197.
6. Horam, (1949) 50 Cri. L.J. 868.
7. 2002 Cri. L.J. 4120 S.C.
exceeded his right of private defence but the other accused was acquitted.
In special leave the Supreme Court held that in appeal against acquittal under Article 136 the finding
reached by the High Court cannot be interfered with merely because different view as one taken by trial court
was possible. Thus, accused were held to have acted in exercise of right of private defence.
It was further held that since accused was in possession of land and the deceased party tried to take
possession forcibly, one member of deceased party was killed and other grievously hurt. Accused was held to
have exceeded his right of private defence hence his conviction was rightly altered by High Court from Section
300 to Section 304 Part I. But the acquittal of the accused who caused grievous injuries by spear to an unarmed
member of deceased party was improper and he was liable to be convicted under section 326 of Indian Penal
Code.
In Katta Surendra v. State of U.P.,] the incident took place on attempt by villagers to lay road. Accused
alongwith others came armed and objected to laying of road. Mob pelted stones on accused and his men.
Accused gave fatal blow to deceased much after pelting of stones have stopped. It was held that accused was not
entitled to claim protection of right of private defence under Section 97 of Indian Penal Code. It was also held
that the claim of right of private defence cannot be based on surmises and speculations. Tire entire incident has
to be examined in its proper setting to decide availability of right of private defence. However, it was made clear
that the plea of solitary injury is not always sufficient to rule out commission of offence of murder.
In Tanaji Govind Misal v. State of Maharashtra} the accused party consisting of 29 persons had gone to
remove the babul branches belonging to and stocked on the land of the complainant. Since they were asked not
to remove the same they started assaulting complainant party with axe and other weapons with which the
accused were armed. The evidence showed that the property over which the incident took place belonged to
complainant party. Finding by the courts below was that the accused had no right of private defence of property
or of person. Total tally of injuries suffered by members of complainant party was fifty one while total injuries
on accused side were only fifteen injuries on accused were found to be insignificant except one fracture of left
ulna of one of the accused. Since there was no right of private defence the conviction was not altered from
section 302 to section 304, IP. Code.
98. Right of private defence against the act of a person of unsound mind, etc.—When an act, which
would otherwise be a certain offence is not that offence, by reason of the youth, the want of maturity of
understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of
any misconception on the part of that person, every person has the same right of private defence against
that act which he would have if the act were that offence.
Illustrations
(a) Z, under the influence of madness attempts to kill A, Z is guilty of no offence. But A has the
same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a
house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A
1. (2008) 3 Cri. L.J. 3196 (S.C).
2. 1998 Cri. L.J. 340 (S.C).
has the same right of private defence against Z, which he would have if Z were not acting under that
misconception.
COMMENT
The principle underlying section 98 is that the right of private defence does not depend upon the actual
criminality of the aggressor but on the wrongful character of the act attempted. If an act is otherwise an offence
the right of private defence arises against the author of the act, even though he is not punishable by reason of his
personal incapacity to commit a crime or because he acts without the necessary mens rea.1 For instance, if a
lunatic attacks you or runs away with your purse, your right to defend yourself or to take back your purse is not
affected by the fact that the lunatic lacks capacity to form criminal intent and therefore, his act would not
constitute an offence. Whether the aggressor would be liable for what he has done or not, one has the right of
private defence against his unlawful act.
99. Acts against which there is no right of private defence.—There is no right of private defence
against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or
attempted to be done, by a public servant acting in good faith under colour of his office, though that act
may not be strictly justifiable by law.
There is no right of private defence against an act which does not, reasonably cause the
apprehension of death, or of grievous hurt, if done, or attempted to be done by the direction of a public
servant acting in good faith under colour of his office, though that direction may not be strictly justifiable
by law.
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
Extent to which the right may be exercised.—The right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation I . —A person is not deprived of the right of private defence against an act done, or
attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the
person doing the act is such public servant.
Explanation 2.—A person is not deprived of the right of private defence against an act done, or
attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that
the person doing the act is acting by such direction, or unless such person states the authority under
which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
COMMENT
Section 99 lays down the limits within which the right of private defence should be exercised.
It was held in Madan v. State of Madhya Pradesh} that a plea of right of private defence cannot be based
on surmises and speculation. While considering whether the right of private defence of body is available to an
accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In
order to find whether the right of private defence is available to an accused the entire incident must be
examined with care and viewed in its proper setting.
In a case where accused persons allegedly assaulted deceased by lathi and the plea by appellants
accused that they were exercising right of private defence is raised, the evidence was to the effect that appellants
were upto some stage exercising right to protect and defend their properties. But thereafter they exceeded their
right and hence they were liable to be convicted under Section 304 Part I instead of Section 302 IP. Code.
Acts of Public Servants (Clause 1).—There is no right of private defence against an act done by a
public servant if the following conditions are fulfilled :—
(1) Act must be done or attempted to be done by a public servant;
(2) Act must be done in good faith;
(3) Act must be done by the public servant under the colour of
his office;
(4) Act must be such as does not cause reasonable apprehension
2. (2008) 4 Cri. L.J. 3950 (S.C).
of death or of grievous hurt;
(1) Act may not be strictly justifiable by law;
(1) There must also be reasonable grounds for believing that the
act was done by public servant as such or under his authority.
The principle underling the above limitation is that normally it is
presumed that public servants will always act in strict conformity with the
law. Secondly, it is for the good of society that public servants should be
protected in the execution of their duty even where they are in error. 1
However, clause I is always to be read with Explanation I of this section. It is intended to protect persons who
may have acted in ignorance of the fact that the person they were dealing with was a public servant.
This clause applies where a public servant acts irregularly in the exercise of his powers, and not where
he acts outside the scope of his powers. 2 In a case where a police officer acting bona fide under colour of his
office arrests a person but without authority, the person arrested has no right of private defence against the
officer.3 If the act of a public servant is ultra vires the right of private defence may be exercised against him. 4 So
also a police officer carrying out a search without a written authority, cannot be said to be acting "under colour
of his office."5
In a case the property of a person was wrongfully attached as the property of certain absconders and the
attachment was resisted by the rightful owner. It was held that the resistance could not be said to be in the
lawful exercise of the right of private defence as the police officer was acting in good faith under colour of his
office and even supposing that the order of attachment was not properly made, that would in itself not be
sufficient ground for such a defence.6 So also where articles protected from attachment were attached, the
resistance was held not to be justified.7
In Kamvar Singh? case a raiding party organised by the officials of the Municipal Corporation to round
up stray catties within the limits of the corporation was attacked when it had rounded up some cattle and was
leading them to the cattle pound. It was held that the act of raiding party was fully justifiable by law and the
accused had no right of private defence.
In a case where a police officer attempted without a search warrant to enter a house in search of property
alleged to have been stolen and was obstructed and resisted, it was held that, even though the officer was not
strictly justified in searching the house without a warrant, the person obstructing and resisting could not set up
the illegality of the officers proceeding as a justification of his obstruction, as it was not shown that the officer
was acting otherwise than in good faith and without malice. 9 If a police officer attempts to execute a warrant
which is illegally issued, the accused would be justified in their resistance. 10
Reasonable apprehension of death or of grievous hurt.—The right of private defence against an injury apprehended to be done by a public servant extends only to those cases in
which there is a reasonable apprehension of death or of grievous hurt being caused by the act of such public servant. In a case an Excise Inspector pursued an armed smuggler and on getting nearer
to him ordered him to stop and fired his revolver twice to frighten him, whereupon the smuggler drew a sword and cut the Inspector on the thigh. It was held that the smuggler had reasonable
ground for believing that the Inspector intended to cause death or grievous hurt and did not exceed the right
1. Mayne, Criminal Law, pp. 203-204.

2. Deoman Shamji, (1958) 61 Bom. L.R. 30.
3. Mohamed Ismail, (1935) 13 Rang. 754.
4. Jogendra Nath Mukerjee, (1897) 24 Cal. 320.
5. Ram Parves, (1944) 23 Pat. 328.
6. Bohai Lai Chowdhary, (1902) 29 Cal. 417.
7. Poomlai Udayan, (1898) 21 Mad. 296.
8. (1965) II Cri. L.J. 1 (S.C).
9. ■ Pukot Kotu, (1896) 19 Mad. 349.
10. Jogendra Nath Mukerjee, (1897) 24 Cal. 320.
11. Ranjha Mai, (1927) 28 Cri. L.J. 993.
of private defence.'
Raman instigates Krishnan to resist by force a distress made by a public servant Raghavan. As a result of
the instigation Krishnan resists the distress. In offering resistance Raghavan suffers grievous hurt. Raman knew
that Krishnan was likely to cause voluntarily grievous hurt to Raghavan. In this case Krishnan will be liable for
causing grievous hurt under section 325 and Raman will be liable for abeting causing of grievous hurt to
Raghavan. There is no right of private defence against an act done by a public servant unless there is reasonable
apprehension of death or grievous hurt. Therefore in this case no right of private defence can be claimed by
Krishnan because there was no reasonable apprehension of death or grievous hurt from distress made by public
servant Raghavan.
In Bihari Rai v. State of Bihar,2 accused allegedly inflicted blows on deceased with axe. Occurrence took
place in course of sudden quarrel and son of deceased noticed accused inflicting injuries. He has categorically
stated about presence of all eye-witnesses. No cogent evidence was adduced by defence to establish plea of right
of private defence. Therefore conviction of accused under Section 304 Part I was held to be proper and right of
private defence was not allowed to the accused.
In this case it was also made clear that in order to avail the right of private defence extending to
voluntarily causing of death, the accused must show that there were circumstances for apprehending that either
death or grievous hurt would be caused to him. Entire incident must be examined with care and viewed in its
proper setting. To avail this right it is not relevant whether accused may have a chance to inflict severe and
mortal injury on aggressor. The plea cannot be based on surmises and speculation. Further, non-explanation of
injuries sustained by accused is very important circumstance. But mere non-explanation of minor injuries by
prosecution may not affect its case in all cases. It was also made clear that number of injuries is not always a
safe criterion for determining aggressor.
It was held in Arun v. Slate of Maharashtra? that in order to claim whether the right of private defence
extends to voluntarily causing of death, accused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or grievous hurt would be caused to him.
Acts done under the direction of a public servant (clause 2).—Clause 2 must be read conjointly with
explanation 2 to this section. There is no right of private defence against an act done, by any person under the
direction of a public servant if the following conditions arc fulfilled :
(1) Act must be done or attempted to be done, by the direction of a public servant.
(1) Act must be done in good faith.
(2) Such public servant must be acting under the colour of Ms office.
(2) The Act must be such as does not cause reasonable apprehension of death or of grievous
hurt.
(3) The direction may not be strictly justifiable by law.
(3) There must be reasonable grounds for believing that the acts were done by the direction of
the public servant or the person acting under the direction must state the authority under which he acts or
if he has the authority in writing, he must produce it on demand.
Not strictly justifiable by law.—The words 'not strictly justifiable by law' are used both in clauses 1
and 2 of this section. This shows that in order to depriving a person of the right of private defence the act done
or direction given by a public servant may not be strictly justifiable by law. The word 'strictly' has been inserted
by the legislature to serve a definite purpose, namely, that the section was not intended to apply to cases where
the act was wholly unjustified. It does not extend to cases where there is a complete want of jurisdiction. 4 It
applies to cases where there is an excess of jurisdiction as distinct from a complete absence of jurisdiction, to
cases where the official has done wrongly what he might have done rightly, but not to cases where the act could
1. Mga Nan Da, A.I.R. 1920 U.B. 35.
2. (2009) I Cri. L.J. 340 (S.C).
3. (2009) 2 Cri. L.J. 2065 (S.C).
4. Jograj Mahto, A.I.R. 1940 Pat. 696.
not possibly have been done rightly.1 The protection afforded under this section to public servants is not lost by
reason of any mistake on their part in the exercise of their proper functions. 2 It is not intended to cure want of
jurisdiction but only an erroneous exercise of it where the error affects the procedure rather than the principle.
Recourse to the protection of the public authorities (clause 3). — According to this clause
right of private defence does not exist when the party attacked had an opportunity of calling on the public
authorities to intervene. No man has the right to take the law into his own hands for the protection of his
person or property if there is a reasonable opportunity of redress by recourse to the public authorities." But
to call on the Government for aid is only necessary when such aid can be promptly and effectively given.
There are many cases in which a prudent man would decline to cail in Government aid. As a rule,
therefore, we cannot say that self-defence cannot be resorted to, when the party asserting the right could
have protected himself by calling in the Government. 4 The apprehension which justifies a recourse to the
public authorities ought generally to be based on some information of a definite kind, as to the time and
place of danger actually threatened.5 But the law does not intend that a person must run away to have
recourse to the protection of public authorities when he is attacked instead of defending himself. 6
The question whether a person had, in a given case, time to have recourse to the protection of
public authorities depends upon four facts; (1) the antecedent knowledge of the attack; (2) how far the
information is reliable and precise; (3) the opportunity to give information to the public authorities; and
(4) the proximity of the police station or other authorities to which the report might be sent. But these
considerations will not arise when the attack is sudden and unpremeditated or where there are no facilities
for having recourse to the public authorities or where the information having been given, no help is
forthcoming. In such cases one can exercise his right of private defence.
In Ajodhia Prasad v. State of U.P.J the accused received information that they were about to be
attacked by a hostile section in the village. They believed that if they separated they would be pursued and
attacked individually and under this belief they collected together and awaited the attack. The enemies
then appeared on the scene and one of them fired a pistol and hit one of the accused. One of the accused
then fired a pistol and hit the man who had first fired, and then a fight with lathis commenced during the
course of which one member of each party was killed. It was held that the accused were entitled to
exercise the right of private defence and it could not be said that they had exceeded that right.
Excess harm not justified (Clause 4).—Clause 4 lays down that the quantum of harm caused in
self-defence should in no case be in excess of the harm that may be necessary for the purposes of defence.
This is so because the right given to a person is the right of defence and not a right to punish the
aggressor. Therefore, nothing which is done by way of punishment can be justified. For example, it would
be illegal to confine a man who is found ploughing up his neighbour's land by day, in order to keep him
till he can be handed over to the police because trespass is not one of the offences that would raise a right
of private defence.8
But no definite standard of the quantum of harm that may be caused in self-defence may. be laid
down. In fact it is not possible to define them.9
The measure of self-defence must always be proportionate to the quantum of force
.1. Bisu Haldar, (1907) I I C.W.N. 836.

2. Tiruchittambila Pathan,. (1896) 21 Mad. 78.
3. Jairam Mahton v. Emperor, 35 Cal. 103.
5. Narsingh Pattabha',, 14 Bom. 441.
6. Alingal Kunhinaayan, (1905) 28 Mad. 454.
7. (1924) 25 Cri. L.J. 997.
8. Bhola Mahto v. Emperor, 9 C.W.N. 125.
9. Jai Dev v. State of Punjab, (1963) 1 Cri. L.J. 495.
used by the attacker and which it is necessary to repel. In deciding whether more force than was
necessary was used, it would be inappropriate to adopt tests of detached objectivity. The force
which a threatened person uses in self-defence should not be weighed in golden scales. 1 But the
right of private defence cannot be availed as a pretext for a vindictive, aggressive or retributive
purpose.2
In Deoppa Ishwar Shinde v. State of Maharashtra? five persons were injured from side of
defence. There was no explanation of injuries which are substantial in nature sustained by accused
persons. Four out of ten injuries suffered on side of defence were injuries on head. Accused was
alleged to have inflicted two knife injuries on chest of deceased causing his death and thereafter
inflicted two knife blows on back of injured. It was held that there was suppression of genesis and
origin of occurrence as both prosecution and defence had come out with untruthful versions.
Testimony of eye-witnesses who are interested witnesses cannot be accepted. It was probable that
accused and others were first assaulted by complainant party and thereafter they assaulted in
exercise of the right of private defence of their person as they had apprehension of grievous hurt.
Accused had inflicted only two knife blows on person of deceased, he cannot be said to have
exceeded the right of private defence of person. In view of the circumstances he was entitled to
benefit of doubt.
In Abdul Kadir and others v. State of Assam? the two deceased persons and their men had
trespassed into the crop about to be harvested. There were possibility of theft and mischief being
either committed or threatened to be committed when the accused persons exercised their right to
resist their entry, they were given blows by the deceased and their men. It was held that the right of
private defence of body and property was available to the accused persons and in the circumstances
extended to the causing of death. This is not the case to which exception laid down under the
section is applicable.
Justifiable harm.—The following are some of the illustrations of justifiable harm :—
(a) A finding a thief entering into his house at night, through an entrance made in
the side-wall, seized him while intruding his body and held him with his face down to the
ground to prevent his further entrance and thereby caused his death by suffocation.5
(b) A attacked by B with a spear struck a blow with a club which resulted in the
death of B.6
(c) A, a boy whose crop was frequently stolen, found B, stealing and gave him
some blows with a club which resulted in his death.7
(d) A number of armed men attacked a court-house, and one of the inmates shot an
assailant.8
(e) The accused fired his gun against persons whom he thought to be his enemies
entering into the house at dead of night whereas they were policemen who had come to arrest
him and a policeman was killed.9
In State of M.P. v. Mishri Lai?" there was firing between prosecution party and accused
party. Father of one of the accused received five injuries which were dangerous to his life. His son
apprehending danger to the life of his father fired gunshot at that point of time in self-defence. It
was held that in these circumstances the accused cannot be said to have exceeded his right of
1. Jai Dev v. State of Punjab, (1963) 1 Cri. L.J. 495.
2. Munney Khan, (1970) 2 S.C.C. 480.
3. 2002 Cri. L.J. 1026 (Bom.).
4. 1985 Cri. L.J. 1898 (S.C).
5. Kurrim Bux, (1865) 2 W.R. (Cr.) 12.
6. Moizuddin, (1869) 11 W.R. 1 (Cr.) 41.
7. Mokee, (1869) 12 W.R. (Cr.) 15.
8. Ram Lall Singh, (1874) 22 W.R. (Cr.) 51.
9. Dliara Singh, (1946) 49 P.L.R. 38.
10. 2003 Cri. L.J. 2312 (S.C).
private defence.
Excessive harm caused.—The following are some of the illustrative cases where the right has
been exceeded :
(a) Where a thief was caught at night with half his body and his head inside the wall
of a house and was struck with a pole five times on the neck. The accused was convicted of
culpable homicide not amounting to murder.1 More harm was done than was necessary.
(b) Where accused wanted to construct a path through joint land belonging to
himself and the deceased, and was stopped by the deceased which led to exchange of hot
words and the deceased wrested the kodali from the hands of the accused who having
recovered it struck a violent blow driving the kodali right through the skull into the brain
which resulted in death 18 days after. It was held that the prisoner caused more injury than
was necessary.2
(c) Where a Head Constable unlawfully arrested one of the party of gypsies, and all
of them turned out, some four or five being armed with sticks and stones and advanced in a
threatening manner towards the Head Constable and were fired with a gun and one of the
gypsies was killed, and it appeared that the crowd would have retired if the gypsy who was
arrested had been released, excessive harm was held to have been caused.3
(d) where a person caught a thief in his house at night and deliberately killed him
with a pick-axe to prevent his escape, the defence was negatived.4 „
(e) Where a heavy and mechanically propelled vehicle like a jeep was used as a
means or weapon for the exercise of the right of private defence, excessive harm was held to
have been caused.5
(f) A parker finding a boy stealing wood in his master's ground bound him to his
horse's tail and beat him. The horse took fright and ran away and dragged the body on the
ground till his shoulder was broken, whereof he died. This was held to be murder.6
100. When the right of private defence of the body extends to causing death. —The right of private
defence of the body extends, under the restrictions mentioned in the last preceding section, to the
voluntary causing of death or of any other harm to the assailant, if the offence which occasions the
exercise of the right be of any of the descriptions hereinafter enumerated, namely :—
First.—Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault ;
Secondly.—Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault ;
Thirdly.—An assault with the intention of committing rape ;
Fourthly.—An assault with the intention of gratifying unnatural lust ;
Fifthly.—An assault with the intention of kidnapping or abducting ;
Sixthly.—An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to be apprehended that he will be unable to have recourse to the public
authorities for his release.
1. Queen v. Fukeera Chamar, 6 W.R. (Cr.) 50.
2. 6 W.R. (Cr.) 89.
3. 3 All. 253.
4. Durwan Geer, (1866) 5 W.R. (Cr.) 73.
5. Marudevi Avva, 1958 Cri. L.J. 33.
6. Holloway, (1628) 1 East P.C. 327.
COMMENT
The law authorises a man, who is under a reasonable apprehension that his life is in danger or
his body in risk of grievous hurt, to, inflict death upon his assailant either when the assault is
committed or directly threatened. But the apprehension must be reasonable and not an imaginary
one. The injury inflicted must also be proportionate to and commensurate with the quality and
character of the act it is intended to meet.
The right of private defence extends to the causing of death only when the offence which
occasions the exercise of the right is one of the kinds mentioned in this section.1
In Harjinder Singh v. Karnail Singh? the accused entertaining apprehension that the
complainant party had come to take forcible possession of land and to attack them, chased the
complainant party and opened 30 to 40 round of gun shots at complainant party thereby killed some
person. It was held that opening 30-40 rounds of gun shots was unnecessary and therefore accused
exceeded the right of private defence and thereby committed offence under section 304, Part I of
the Indian Penal Code.
Apprehension of death.—In Gulingappa Shidramappa? A and B were being searched by an
armed gang who announced their intention to kill them. The two were hiding in a dark kitchen. The
mob broke into the house and two of them made their way with torches to the kitchen and attacked
A and B, the accused. One of the attacking party was hacked to death by the accused. It was held
that the accused had committed no offence, since they were fighting for life with a murderous mob
in front and an enemy who had made his way into the room where they had taken refuge, and it was
not surprising that they did their best to make sure that their enemy was dead.
In Dhiria Bhavji? it was held that an apprehension in the mind of the accused that death may
be caused due to witchcraft is unreasonable and therefore, there can be no right to private defence
against such apprehension unless physical violence from the opponent is apprehended. In case of
assault with fists and hands it has been held that there can be no reasonable apprehension of
grievous hurt to either of the parties and if one of them uses knife, he takes an undue advantage and
acts in an unusually cruel manner and is not entitled to benefit of the right of private defence. 5
In Rama v. State? the deceased and the accused were brothers. The deceased was stronger and used to harass the accused. On the night of the occurrence the
deceased beat him severely, threw him on the ground and throttled him saying that he was going to kill him, the accused felt suffocated and believing, that the deceased
would in fact kill him, caught hold of the hammer which he found on the ground and hit the deceased on his head resulting in his death. The accused was held not to have
exceeded his right of private defence as he could not be expected, under the contingencies in which he was placed during the scuffle with the deceased, to judge the exact
intensity that he should have given to the blow of the hammer which he delivered on the deceased.
1. Ram Saiya, A.I.R. 1948 All. 165.

2. A.I.R. 1998 S.C. 1648.
3. A.I.R 1921 Bom. 335.
4. (1963) 1 Cr. L.J. 431.
5. Nihal Singh, A.I.R. 1935 Pesh. 155.
6. 1978 Cr. L.J. 1843.
In State of Orissa v. Ghenu,1 the respondent was charged for murdering his brother. Both the
deceased and the respondent were heavily drunk and had a quarrel between them, in the course of
which the deceased rushed towards the respondent with a lathi in order to assault him. The
respondent apprehending danger to his life, dealt a tangi blow on the head of the deceased and in
consequence of this he later died in the hospital. It was held that there was imminent danger to the
person of the respondent and as such he had the right of private defence of his person. While
reaching this conclusion the court considered the mental set up of the parties involved and observed
that the fact that the deceased and the respondent were adivasis and that adivasis were volatile in
nature and their temper and sentiment could not be judged on the same lines as other persons.
In State of U.P. v. Zalim and others,2 a Panchayat was held on 9-5-19761, to resolve certain
dispute relating to possession of a Kotha but it could not be resolved : The discussion lasted for
more than two hours and one Babu Ram (deceased) was also present in the Panchayat. Babu Ram
told in the Panchayat that he owned one third share in the grove which was in the possession of
respondents (accused) and they are continuing in possession. There was some wordy quarrel
between Babu Ram and Partap. Babu Ram used abusive language and took off the shoe from his left
leg and showed it to Pratap, Pyare and Hon Singh. The latter felt insulted by the conduct of Babu
Ram and thereafter they caught hold of Babu Ram and took him in the middle of the road some
persons intervened and tried to separate them but Pratap asked Zalim (accused) to cut off-left hand
of Babu Ram while Pratap and Pyare were holding Baboo Ram in the middle of the road. Therefore
Zalim took out the knife from his pant pocket and tried to give blow on the left hand of Babu Ram.
However the said blow fell on the left side of the chest and Babu Ram collapsed on the ground. All
the four accused fled away. Zalim, Partap, Pyare and Hon Singh were charged for culpable homicide
under Section 304 read with Section 34. The accused pleaded right of private defence. It was held
that the right of private defence of person was exceeded in this case. The fact that deceased was
holding shoe in his hand could not cause reasonable apprehension in the mind of the accused that
there would be danger to their lives. Hon Singh was given benefit of doubt and acquitted by the trial
Court. In appeal other three were also acquitted by the High Court. But the Supreme Court convicted
Zalim, Partap and Pyare under Section 304, Part I as the action of the respondents could not fall
within the right of private defence which could justify causing of death. Even though there was any
such right, it was exceeded by the respondents.
In State of U.P. v. Laeeq,3 the appellant was tried along with three others for committing
murder of Ashfaq Hussain and causing injuries to four others. The other three accused were
acquitted by the trial court as it did not believe the evidence of the eye-witnesses and gave benefit of
doubt. The role played by Laeeq was believed but the court gave him benefit of Exception (4) to
section 300, I.P.C. and convicted him under section 304, I.P.C. and sentenced him to suffer
imprisonment for life. The State filed appeal against acquittals and Laeeq filed appeal against his
conviction in the High Court. Both the appeals were heard together by the High Court and the
appeal by State was dismissed but the
1. 1978 Cr. L.J. 262 (Orissa).
2. 1996 Cr. L.J. 2537 (S.C).
3. A.I.R. 1999 S.C. 1942.
appeal by Laeeq was allowed. Hence this special leave petition in the Supreme Court by the State
was filed. It was held by the Supreme Court that after going through the record we find that neither
in cross-examination of the witnesses it was suggested nor in his statement under section 313, Cr. P.
Code the respondent had stated that he had given the knife blow to the deceased while he feared
death or grievous injury from the deceased or the persons who were with the deceased. Before the
trial court the plea raised on behalf of the respondent was that all the accused had wielded sticks in
self-defence. The trial court rightly did not accept the version of the defence as the injury which was
found on the person of the deceased was an incised wound possibly by a sharp cutting instruments.
The respondent, however, has not stated specially under what circumstances he gave the knife blow
to the deceased. The material on record does not show that the complainant side was armed with
weapons other than sticks. The required justification for causing death in exercise of right of self
defence was neither pleaded specifically nor the material on record probabilises the same. Without
considering this aspect the High Court gave the benefit of section 100, I.P.C. and acquitted the
respondent. Acquittal of respondent was set aside by the Supreme Court as he exceeded his right of
private defence. The respondent was therefore convicted under section 304, I.P.C. and sentenced to
suffer rigorous imprisonment for five years.
The police was taking away A after arresting him illegally. Certain persons tried to rescue 'A'
and followed the police. Three shots were fired by the police. Those persons also returned the fire as
a result of which a constable died. In this case A was illegally arrested by police and certain persons
were trying to rescue him. Shots were first fired by police which must have threatened those persons
with grievous hurt or death which apprehension gave them right of private defence. Therefore these
persons have acted in the exercise of right of private defence of body and will get the benefit of
section 100, I.P.C. and will not be liable for any offence.
In Shanmugam v. State of Tamil Nadu} appellant attacked unarmed deceased with a
dangerous weapon which he fetched from his house and started stabbing. The trouble started by
admonition given by deceased for his misbehaviour in whistling. All of a sudden the accused
entered his house, picked up the weapon and attacked and inflicted injuries on the deceased. But on
being persuaded by his wife he left the spot although he was in a position to give fatal blows to
victim. Some injuries were found on the person of the appellant soon after his arrest two days later.
Lip injury was caused to the accused. It was argued that the accused had acted in self defence as he
has also lost his 2-3 teeth on right front of lower jaw. The doctor who treated him could not say
whether the teeth were lost only two days back or even earlier than that. He referred the accused to a
dental hospital but there was no evidence of further medical examination. If two oy three teeth were
lost as a result of attack, there would have been terrible suffering and some treatment should have
been given even at the private hospital. Therefore it was held that lip injury caused to the accused
does not give rise to a reasonable inference or even probability that deceased violently attacked the
accused. On the other hand it is probable that there would have been some resistance on the part of
the deceased and in that process the accused would have fallen on the hard substance as deposed by
the doctor and got injured
1. 2003 Cri. L.J. 418 (S.C).

thereby. On a consideration of totality of the circumstances it is difficult to impute to the accused the
intention to put or end to the life of the deceased. Nevertheless intention to cause bodily injuries has
to be necessarily imputed to the appellant.
Therefore the plea of self defence is not tenable as there was no reasonable apprehension of
his life from the side of the deceased. The injuries caused by the accused were likely to cause death
and intention to cause severe bodily injuries have to be imputed to the accused and he is liable to be
convicted under section 304 Part I of Indian Penal Code.
In State of Madhya Pradesh v. Rainesh,1 on 20-5-1986 deceased Rajendra and Kuldeep (Pw-
1) were returning after their examination. They were passing in front of house of Ram Kirpal
(acquitted accused) who was a municipal councilor on those days. Ram Kirpal knowing that these
boys were friendly with Dinesh (Pw-2) who was a press reporter of that area, advised them to abjure
company of Dinesh. Finding them non-responsive Ram Kirpal, his two sons Ramesh and Rakesh
and his wife Nonibai started pelting stones on deceased Rajendra and Kuldeep (Pw-1). Thereafter,
Ram Kirpal asked Ramesh to shoot those boys. Ramesh then brought out a 12 bore gun and fired a
shot at deceased Rajendra from a distance of about 5 paces. At that time Dinesh Pw-2 reached there
while the shot was fired. This shot struck Rajendra in the left side of stomach and damaged internal
organs and he died on the spot. It emerged from the right side of the body and struck Krishna (Pw-6)
who also happened to reach by that time. The bullet passed through fleshy portion and then struck
back region and got embedded on the spinal cord, ultimately resulting in paralysis. The first
information report was lodged by Kuldeep (Pw-1) on the same day within 10 minutes after the
incident. The prosecution case was based on the testimony of Kuldeep (Pw.l), Krishna (Pw-6),
Dinesh (Pw-2), Sureshwar Pandey, ASI (Pw-8) who happened to be present there and had witnessed
the incident. Reliance was placed on the medical opinion regarding injuries of Krishna. Medical
report showed that deceased Rajendra had been struck with gun shot and his kidney, spleen and liver
were -injured. The Trial Court accepted the prosecution story, although presence of ASI Sureshwar
Pandey (Pw-8) was not accepted and his testimony was found to be false. The Trial Court held that
firing was deliberate and Ramesh was convicted for murder under Section 302 I.P.C. However, other
co-accused persons were acquitted.
Accused then filed appeal before the High Court and the High Court altered the sentence
under Section 304, Part I. The High Court held that there was some exchange of hot words between
the parties and the boys attacked father of Ramesh and this was a grave and sudden provocation and
exception I to Section 300 would be attracted. The High Court also held that the case is covered by
either exception I or exception II to Section 300 as injuries on the accused are not explained.
It was held by the Supreme Court that for some conclusions the High Court acted without any
evidence and frequently used the expression probably. A new case which was not even pleaded by
the parties was introduced on its own by the High Court. Even the High Court was not sure whether
Exception I or Exception II to section 300 of Indian Penal Code applied. They apply in two different
fields. One relates to grave and sudden provocation and the other to exercise of right of private
defence. Therefore, alteration of conviction of accused to Section 304, Part I from conviction made
under Section 302 by Trial Court would be illegal.
It was also made clear that a plea of right of private defence cannot be based on surmises,
conjectures and speculation. While considering whether the right of private defence is available to an
accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the
1. 2005 Cri. L.J. 652 (S.C).
aggressor. The right of private defence is essentially a defensive right circumscribed by the
governing statute i.e. the Penal Code, available only when the circumstances clearly justify it. It
should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive
purpose of offence. It is a right of defence, not of retribution expected to repel unlawful aggression
and not as retaliatory measure. While providing for exercise of the right, care has been taken in the
Penal Code not to provide and has not devised a mechanism whereby an attack may be a pretense for
killing. A right to defend does not include a right to launch an offensive, particularly when the need
to defend no longer survived.
In State of U.P. v. Chatur Singh,1 accused armed with axe went to house of his brother and
hacked his brother and sister-in-law one after another. Prosecution case was supported by extra-
judicial confession and other evidence. It was nobody's case that accused was beaten by deceased by
lathi. Accused in his examination under Section 313 criminal Procedure Code not stating anything
about beating, murder cannot be said to be committed in exercise of right of private defence. Since
accused's intention and premeditated notion to murder deceased is clear, he is liable to be convicted
for murder.
In Dhaneswar Mohakad v. State of Orissa,2 at about 7.30 a.m. on 23-3-1992 Dhaneswar, A-2
and Ganeswar, A-3 both carrying crowbars and Dasratha, A-4 and Kamala, A-5 both armed with
axes went to the disputed land and started digging pits in order to fix poles therein for construction
of a shop house. Umakant (deceased) with his father Kandum and uncle Bishwanath (deceased)
reached the spot and objected to the said act of the accused persons. On this they were assaulted by
the accused persons with crowbars and axes resulting in death of Umakant and Bishwanath and
caused injury to Kandum (P.W. 7). The incident was witnessed by Mangaraj (P.W. 5) who was
having his hotel nearby the place of occurrence. Later Shankahali (P.W. I), a relative of deceased
lodged the F.I.R. with the police at about 8 a.m. While he was coming from a village he saw on his
way his uncle, Umakant lying dead in an open field and there were several cut injuries on the head
and face of Umakant. The body of Bishwanath was also lying dead in a pool of blood who had
sustained injuries on different parts of his body including head. He saw the daughter and wife of his
uncle sitting and crying near the dead bodies.
During trial the accused persons pleaded not guilty and the evidence of D.W.-3 Nanda Munda
shows that while he was engaged in construction of shop room over his land and was digging pits to
fix poles for the purpose, the deceased persons along with injured P.W. 7 armed with deadly
weapons came to the spot and attacked him and in order to save his life he whirled the axe which he
was holding whereby the deceased persons sustained injuries and died. In short the accused persons
pleaded the right of private defence of body and property. The trial court did not accept the plea of
private defence and verdict of guilty was recorded because apparently the intention of accused was
to cause death of deceased and injuries to Kandum, P.W. 7.
It was held by the Supreme Court that the evidence reveals that there was no imminent danger
to property or person of accused from the act of the deceased. There was no evidence on record to
show that any of the accused has sustained injuries to deduce factum of imminent danger to their
person or
1. 2006 Cri. L.J. 545 (SC.).
2. 2006 Cri. LJ 2113 (S.C).
property. Further the presence of witness examined to establish right of self-defence at place and time of incident
was doubtful. His testimony was not credible. Accused cannot claim self-defence.
In order to plead right of private defence the ingredients required must be proved. In this case deceased
had merely gone to the spot and asked the accused party to get the measurement of land done and tried to
dislodge one of the poles fixed by the accused. Hence conviction of accused under Section 302 read with Section
34 is proper.1
In Ranveer Singh v. State of M.P.,2 complainant Lakhan Singh's cousin, Pappu had some altercation on
31-5-1990 with Kanthshree sister-in-law of appellant. Due to this incident when on 1-6-1990 morning Pappu was
going to answer nature call, he was surrounded by accused appellant Ranveer Singh and his son Munnu alias
Prithviraj and was thrashed to ground. When he shouted complainant Lakhan Singh with many others reached
the spot. Accused thereupon asked his son to bring gun. On being exhorted by appellant his son Munnu fired shot
which hit sister of complainant present there and it proved fatal. In trial for murder accused pleaded that he acted
in exercise of his right of private defence. It was held that accused had exceeded his right of private defence and
was liable to be convicted under Section 304 Part I read with Sections 109 and 34 IP. Code.
It was also held that whether in a particular set of circumstances, a person legitimately acted in the
exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of
each case. No test in the abstract for determining such a question can be laid down. In determining this question
of fact, the Court must consider all the surrounding circumstances. In order to find whether right of private
defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries
caused by the accused and whether the accused had time to have recourse to public authorities are all relevant
factors to be considered.
Reasonable apprehension of grievous hurt.—In Sheo Persan Singh v. State of U.P.,3 a truck over ran two
persons sleeping on the road at night. People ahead of the truck stood in the middle of the road and signalled the
truck to stop. The driver took no heed, speeded away overrunning the people and caused death of several of
them. Against the charge of murder the driver pleaded the right of private defence as he was apprehensive of the
crowd grievously injuring him. It was held that it is no doubt true that in many cases after the accident, the crowd
has seriously dealt with the drivers but it cannot be accepted as a general rule that in every case as soon as the
accident takes place the driver gets a right to speed away after crushing the people who are on the road. The
people on the road in this case had a right to arrest the driver. The driver had no right of private defence in
running away from the scene of occurrence and causing the death of so many people.
In Raza Pasha v. State of Madhya Pradesh,4 the appellant fired from inside of his house at 'A who died
of the injuries so received. The appellant's contention was that in the course of a quarrel which took place
between them shortly before the occurrence the deceased alongwith one or two others armed with different
weapons chased him and tried to attack him by entering his house which generated into his mind a reasonable
apprehension that he would be killed or wounded grievously and it was to avoid the attack, he fired the gun shot
in exercise of his right of private defence. It was held that the right of private defence would not be available to
him because the accused fired from inside of his house at the deceased who was standing at the gate of his house
and he never entered the house of the accused. There was no reasonable apprehension of death or grievous hurt.
It was held in Bahadur Singh v. State of Punjab,5 that the plea of self-defence may be put forward
during the trial even though it was not put forward during the investigation. The accused can even rely on
1. 2006 Cri. LJ 2113 (S.C).
2. (2009) 2 Cri. L.J. 1534
(S.C).
3. 1979 Cri. L.J. 517.
4. 1983 Cri. L.J. 977 (S.C).
5. 1992 Cri. L.J. 3709
the circumstances and admissions made by the witnesses in support of his plea without even setting
up a specific plea.
In Nabia Bai v. State of M.P.} one Ganga Ram happened to pass through the neighbouring field
while, the appellant, her sister, and another were weeding their crop. In the course of some
altercation the deceased inflicted knife injuries on the accused, her sister and the mother. The
appellant anyhow managed to get hold of knife held by deceased and inflicted injuries on the
deceased resulting in his death. It was held by the Supreme Court that the deceased had gone to the
place of incident and the appellant acted in exercise of her right of private defence available to her
under section 100, IP. Code. She inflicted injuries on the deceased in order to save herself from
armed intruder.
In Suresh Singh v. State of Haryana,2 there are two versions of the occurrence, the one believed
by the court and which is a defence version is that the occurrence took place because Mahipal
indulged in abusing under the influence of liquor. The occurrence as alleged by the prosecution did
not take place in front of the house of Mahipal, the deceased but at a distance of about 110 ft. when
the deceased, chased accused Rameshwar and on being so chased he inflicted blows on the deceased
in self-defence. The prosecution version is that Mahipal was sitting in front of his house when the
accused persons ten in number armed with different deadly weapons arrived there. The accused
Rameshwar gave a lalkara that Mahipal should not be allowed to go, the accused persons gave
different blows on different parts of body of Mahipal. Hearing the cries of Mahipal when his brother
Chand Ram, Chander Deep and Rajbir rushed to the spot they were also attacked and thereafter the
accused persons left the scene when villagers collected at the spot. The three appellants and seven
others were tried for offences under sections 148/149/324/325/302/307, I.P.C. for having formed an
unlawful assembly and committing murder of Mahipal as well as having injured Chand Ram,
Chander Deep and Rajbir when they came to the rescue of Mahipal. The trial court acquitted four of
the accused persons of all charges as in its opinion they were not present on the spot, that other six
persons were acquitted for charge under sections 307, 149 but were convicted under sections 148,
302, 323, 324, 325, read with section 149, I.P.C. When the matter went in appeal the High Court
held that the accused persons cannot claim the right of private defence or exception 4 to section 300,
I.P.C. applies which is apparent from the nature of injuries on the deceased. The High Court was of
further view that in view of sudden fight the provisions of section 148/149 or 34, I.P.C. could not be
attracted. Besides the conviction of all accused under sections 323, 324, 325, read with section 149
is not sustainable as the element of voluntariness is lost in case of sudden fight. Therefore the High
Court acquitted three of the accused persons and convicted the three appellants of the charge under
section 302, I.P.C. so far as Suresh and Mohinder are concerned and convicted the appellant
Chander Pal under section 304, Part I, I.P.C. It was held by the Supreme Court that in view of the
fact that injuries found on body of deceased were more grievous than those found on body of
accused and the accused assaulted deceased while being chased by the deceased, the accused
exceeded their right of private defence, therefore the conviction of the accused was altered, from
section 300 to section 304, Part I and the benefit of right of private defence under section 100, IP.
Code was not allowed.
Imam grew paddy on his 3 bighas of land. When paddy was ready for harvesting Kadir and
his men entered the land and attempted to reap the paddy, Imam and his men protested against the
criminal acts of Kadir and his men. The latter attacked Imam and associates had assaulted them with
lathis and spears. Imam's friend Jaffer hit hard Aadam (Kadir's man) on the head and consequently
he fell on the ground and died. Later Imam too died of injuries. The accused in this case Imam and
his men are entitled to claim the right of private defence of property and body both. Kadir and his
men attacked Imam and assaulted them with lathis and spears. This assault was likely to cause death
or grievous hurt
1. 1992 Cri. L.J. 526 (S.C).

2. A.I.R. 1999 S.C. 1773.
therefore under section 100, I.P.C. Imam had right of private defence which extended even to the
extent of causing of death of Kadir's party. Hence Jaffer will not be liable for causing death of
Aadam.
Assault to commit rape.—In Prakash Chandra v. State of Rajasthan,1 at about 8.30 p.m. on
the fateful day Prakash Chandra and his elder brother Radhey Lai were taking meals when Girwar
Singh, Shambhoo Singh and Dhan Singh came to their house and called Prakash. Since he was
taking meals his wife Kamla came to the door to see as to who was calling. Girwar Singh threw
torch light on her and pushed her out. Dhan Singh and Shambhoo Singh started pushing her. She
resisted and cried for heIP. Hearing her cries her husband and his elder brother came out and there
was a scuffle where they caused injuries on the person of the complainant party and ran away from
there. Three days earlier also there was a scuffle between Prakash and the complainant party as they
teased Kamla, wife of Prakash. At the place of occurrence which was about 20 ft. from accused's
house, a number of articles were found spread over including one pair of slippers, one madaliya,
broken pieces of bangles, one broken torch and buttons etc. Dead body of Girwar Singh was found
a little away.
It was held that the appellants are entitled to claim right of private defence under section 100
I.P.C. Dragging out of victim from her house at 9.00 p.m. with an intention to seduce her to sexual
intercourse would certainly' be a circumstance which gave right to accused persons to inflict
injuries on the person of the deceased.
Kidnapping.—A, B and C, who were armed, were escorting two ladies out of a village at
the request of the ladies. X, Y and Z, attempted to kidnap one of the ladies. While doing so X
levelled a loaded revolver against B and thereupon X was stabbed to death by B. Here B would be
entitled to claim the right of private defence of body under this section because there was
reasonable apprehension of death by reason of an assault with intention to kidnap one of the ladies.
Meaning of Abduction.—The word 'abduction' in clause 5 of this section has been
interpreted to mean abduction simpliciter and not abduction as an offence under sections 364, 365,
366 and 367. In Vishwa Nath v. State of U.P.,2 the husband went to his father-in-law's house for
taking his wife. The father-in-law did not agree to Ruksati and thereupon the husband dragged the
wife with a view to take her without her consent. On seeing his sister being dragged her brother
Vishwa Nath gave a knife wound on his brother-in-law resulting in his death. The accused was tried
for the offence of murder. It was held by the Supreme Court that Vishwa Nath had the right of
private defence of the body of his sister against an assault by her husband with the intention of
abducting her by force and that right extended to the causing of death. In Daroga Lohar} the
accused owed some money to the money lender. The money lender sent two,- peons armed with
lathis and kripans to collect the dues. They met the accused and insisted on his "accompanying
them to their master. On his refusal to accompany/the peons dragged him .along. On the way the
accused stabbed one of the peons in the abdomen and the peon died on the next day. It was held
that the act of the peon constituted abduction, but in stabbing the peon the
1. 1991 Cri. L.J. 2566 (Raj).

2. A.I.R. 1960 S.C. 67.
3. A.I R. 1910 Pat. 347.
n
S, 103 ] GENERAL EXCEPTIONS 39
accused exceeded his right of private defence and therefore, was guilty of culpable homicide not
amounting to murder. In Nankan v. State,1 a woman was being abducted by her husband and was
being compelled by force to go away from her paramour's house. It was held that the paramour and
his brother were justified in exercising the right of private defence against the husband who had the
intention to abduct his wife by force.
Assault to commit wrongful confinement.—Clause (6) of this section extends the right of
private defence to the causing of death when the assault is made with the intention of wrongfully
confining a person. If the accused knew that he was wanted by the police and was being taken to the
police station, he has no right of private defence.2
Burden of Proof.—It was held in Dharminder v. State of Himachal Pradesh,3 that onus of
proof to establish the right of private defence is not as onerous as that of the prosecution to prove its
case. Where the facts and circumstances lead to preponderance of probabilities in favour of the
defence case, it would be enough to discharge the burden to prove the case of self defence.
101. When such right extends to causing any harm other than death.—If the offence be not of any of
the descriptions enumerated in the last preceding section, the right of private defence of the body does not
extend to the voluntary causing of death to the assailant, but does extend, under the restrictions
mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.
COMMENT
While dealing with the right of private defence of body sections 100 and 101 must be read
together. Under this section any harm short of death can be inflicted in exercising the right of
private defence of body in any case which does not fall within the provisions of section 100. In case
any harm short of death is caused in the exercise of the right of private defence the accused is
required to prove only that he did not violate the limits laid down in section 99 of the Code. Where
a plain clothed policeman lawfully attempted to arrest A and A mistook him for a robber and
attacked with excessive and unreasonable force, A will be liable for causing- injury to the
policeman. The offence apprehended was only arrest and not robbery, therefore A had no
reasonable cause to believe the policeman to be a robber even though he was not acting under
colour of his office. Here the offence apprehended does not fall within clause (6) of section 100 but
is one falling under section 101, IP. Code. Since section 101 operates subject to the limitations laid
down by section 99 which does not justify causing of more harm than is necessary in self-defence,
A would be liable.
In Yogendra Morarji v. State of Gujarat* there was some dispute with the accused over
payment of amounts claimed by deceased and others in respect of digging of a well in accused's
land. While the accused was returning home in a jeep two persons raised their hands signalling to
the accused appellant to stop the vehicle, while their companions also came close to jeep. On this
the appellant took out his revolver and fired three shots in quick succession resulting in the death of
one person. In doing so he did not wait to assess the necessity of firing in such a quick succession
and then wait to see the effect of the action taken in exercise of self-defence. Thus he exceeded the
right of private defence given to him under section 101.
1. 1977 Cri. L.J. (NOC) 116 (All).

2. Raru, A.I.R. 1946 Sind 17.
3. 2002 Cri. L.J. 4302 (S.C).
4. A.I.R. 1980 S.C. 660.
In Ghunnu v. State of U.P.,1 the accused exceeded the lawful limits, although the attack was made by
the accused after a gunshot had been fired by the persons belonging to the prosecution party. The use of force by
the accused to defend himself by snatching the pistol had led to the presumption that the cause for apprehension
of death or grievous hurt had receded. The firing of pistol shot by the accused in the circumstances was in excess
of the right of private defence.
It was held in Savita Kumari v. Union of India2 that the accused need not prove the plea of self-
defence beyond all reasonable doubt. The Court has to examine the probabilities in appreciating such a plea. In
this context the nature of injuries found on the deceased, other PWs and the accused persons has to be borne in
mind.
102. Commencement and continuance of the right of private defence of the body.—The
right of private defence of the body commences as soon as reasonable apprehension of danger
to the body arises from an attempt or threat to commit the offence though the offence may
not have been committed ; and it continues as long as such apprehension of danger to the
body continues.
COMMENT
This section provides when the right of private defence of body commences and till what time it
continues. It commences as soon as a reasonable apprehension of danger to the body arises and it continues as
long as such apprehension of danger to the body continues. The right commences only on a reasonable
apprehension of danger to the body caused by an attempt or threat to commit an offence. 3 It is not necessary that
the actual offence must have been committed. That is, no actual injury need be received before the right is
exercised.4 There must be an attempt or threat and an apprehension of danger in consequence thereof. For
instance, if a man is preparing himself, as by seizing a dangerous weapon in such a way that he manifestly
intends immediate violence, this seems sufficient justification for the exercise of the right, for his conduct
amounts to a threat and the other has reason to consider the danger to be imminent. 5
It was held in Arun v. State of Maharashtra,6 that the right of private defence commences as soon as
a reasonable apprehension of danger to body arises, the right lasts so long as reasonable apprehension of danger
to body continues.
In Naveen Chandra v. State of Uttaranchal,1 there was family dispute between two brothers and
there was some altercation between the two families in the morning of fateful day. Deceased had received
injuries on his head. Some conciliation was held through Panchayat. In the course of conciliation deceased who
had sustained head injury in morning got in fury and started abusing the accused and in the consequent
altercation that took place accused caused injuries to two persons who were unarmed and also chased other
members of the family. It was held that the accused in such circumstances was not entitled to plead right of
private defence. It was also observed that right of private defence is a defensive right and it cannot be pleaded or
availed of as a pretext for vindictive, aggressive or retributive purposes of offence.
It was also held that the right of private defence of body commences as soon as reasonable apprehension
of danger to body arises and continues till such apprehension lasts. 8 Force used to repel the apprehension has to
be pragmatically viewed and not with high powered spectacles or microscopes to detect slight or even marginal
overstepping.
103. When the right of private defence of property extends to causing death.—The right
of private defence of property extends, under the restrictions mentioned in section 99, to the
1. A.I.R. 1980 S.C. 864 : 1980 Cri. L.J. (NOC)
15 (S.C).
2. 1993 Cri. L.J. 1590 (S.C).
3. Gobardhan Bhuyan, (1870) 4 Beng. L.R. (Appx.) 101.
4. M.C. Dutta v. State, 1977 Cri. L.J. 506 (Gau.).
5. Victor Solomon, 1966 Cri. L.J. 841.
6. (2009) 2 Cri. L. J. 2065 (S.C).
7. 2007 Cri LJ 874 (S.C).
8. Bihari Rai v. State of Bihar, 2009 Cri. L.J. 340 (S.C).
voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of
which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the
description hereinafter enumerated, namely : First.—Robbery ;
Secondly.—House-breaking by night ;
Thirdly.—Mischief by fire committed on any building, tent or vessel, which building, tent or vessel
is used as a human dwelling or as a place for the custody of property ;
Fourthly.—Theft, mischief or house-trespass under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequence, if such right of private defence is not
exercised.
COMMENT
This section enumerates the cases in which the right of private defence of property extends to
the causing of death. A person may cause death in safeguarding his own property or the property of
some one else when there is a reason to apprehend that the person whose death has been caused was
about to commit one of the offences mentioned in this section or to attempt to commit one of those
offences.1 This view finds support in Kanchan v. State of U.P.2 However, in State of U.P. v. Shiv
Murat,3 a new approach was adopted in this connection. In judging whether the action of the
accused in causing injuries to the victim in the purported exercise of right of self-defence is justified
or not, and whether it ceases to be an offence, one has primarily to look into the bona fides of the
accused in causing such injuries. In cases where there is marginal excess of the exercise of such
right, it may be possible to say that the means which a threatened person adopts, or the force which
he uses should not be weighed in golden scales and in judging whether or not the right of private
defence existed it would be inappropriate to adopt tests of detached objectivity which would be so
natural in a court room.
Robbery or housebreaking by night or mischief by fire. —The right of private defence
extends to the causing of death if the offence being committed or attempted to be committed is
robbery, house-breaking by night or mischief by fire.
Theft.—Clause 4 of section 103 deals particularly with cases where the act which causes the
exercise of the right of private defence amounts to theft, mischief or house trespass under such
circumstances which reasonably may cause apprehension that death or grievous hurt would be the
consequence if the right of private defence would not be exercised. 5 It does not apply when the
apprehension of death arises by reason of the intervention of the person who exercises the right of
private defence.5 In a case A entered the house of B at the dead of night with the intention of
committing theft. B struck him with a lathi in the dark and A fell down unconscious. B gave him
one more blow which fell on A's head, causing extensive bleeding and his death. Here the plea of
private defence of property by B would not be available because in case of theft any harm short of
death only could be caused. There was no danger of death or grievous hurt to B. Therefore B will be
guilty for culpable homicide and would not get the benefit of exception 2 to section 300.
Trespass.—The offences against which the exercise of right of private defence of property
extends to causing of death are stated in section 103 of the Penal Code. It was held by the Supreme
Court in Jassa Singh v. State of Haryana? that in case of theft, mischief or house trespass, these
offences must have been committed under such circumstances as may reasonably cause
1. Ali Mea, A.I.R. 1926 Cal. 1012.
2. 1982 Cri. L.J. 1633 (All.).
3. 1982 Cri. L.J. 2003 (All.).
4. State of U.P. v. Shiv Murat, 1982 Cri. L.J. 2003 (All.).
5. State of Orissa v. Raghuram Sahu & others, 1979 Cri. L.J. 502.
6. Ramram Mahton, (1947) 26 Pat. 550.
7. 2002 Cri. L.J. 563 (S.C).
apprehension that death or grievous hurt would be consequence. Though right of private defence is
available in respect of criminal trespass or mischief as against the property owned by himself or of
any other person, but criminal trespass is not enumerated as one of the offences under section 103,
Indian Penal Code. Therefore, the right of private defence of property will not extend to the causing
of death of the person who committed such acts, if the act of trespass is in respect of an open land.
Only a house trespass committed under such circumstances as may reasonably cause apprehension
that death or grievous hurt would be the consequence is enumerated as one of the offences under
section 103 of the Penal Code.
Cases.—In Patil Hari Meghji and another v. State of Gujarat} it was held that where the
accused continued to assault the victims after they had fallen down on the ground and were
rendered harmless and were not in a position to offer any resistance, the plea of the right of private
defence would not be available to him. In Gurdatt Mai,1 the deceased none of whom was in
possession of any dangerous weapon, were harvesting the crop on a plot of land with peaceful
intention under the protection of police. The accused who claimed the crops did not approach the
authorities for redress although they had time to do so, sent away the police constables by a ruse and
then attacked the deceased with guns and other dangerous weapons and shot them down from close
range. It was held that acts of the deceased did not amount to robbery and therefore the accused had
no right of private defence of property.
In Ismail} the accused on being awakened in the middle of the night, discovered the deceased
in his courtyard. The deceased had effected his entrance by scaling the wall which surrounded it on
all sides. The gate of the courtyard was locked. It had an adjoining room in which the accused killed
the deceased by striking him on the head with a club. It was held that the courtyard was a building
though unroofed and that the accused not knowing in the dark, whether the burglar was armed or
not, did not exceed his right of private defence under clause 4 of section 103, by striking him three
times and causing his death.
In Kyaw Zan Hla,4 a thief entered the sugar plantation of the accused and began to cut
sugarcanes with a dah. The accused on hearing the sound aimed with a cross-bow in the direction of
the sound and shot. The bolt hit the thief in the side and caused his death. It was held that since the
thief had the dah (an edged instrument) with him the accused was justified in defending his property
by shooting an arrow at the thief, and with a deadly weapon not actually intending to kill him but
knowing it to be likely that he would kill him, and that the accused had acted in good faith for the
protection of his person and property. Where D forcibly snatches away B's gold necklace, B chases
him but D escaped. Next day B happens to meet D and strikes him on the head with lathi and kills
him, B will not succeed in his defence under this section and will be liable.
In Subramani v. State of Tamil Nadu,5 the deceased Jayavelu purchased land from one
Mudaliar and Savithri. Appellant No. 1 who was a cultivating tenant of the said land was
obstructing delivery of possession of the land to the deceased who had purchased the land. The
1. 1983 Cri. L.J. 826 (S.C).
2. A.I.R. 1965 S.C. 257.
3. (1925) 6 Lah. 463.
4. (1904) 1 Cri. L.J. 997.
5. 2002 Cri. L.J. 4102 (SC.).
dispute could not be resolved even after Panchayat. The deceased attempted to plough the land on
19th April, 1991 but appellant No. 1 protested which compelled the deceased to stop ploughing the
land. After this the deceased party went away. On the next morning at about 6 a.m. the deceased
along with his son, two daughters P.Ws. 2 and 3 and P.W. 1, husband of P.W. 2 and Sikamani again
went to plough the land and commenced agricultural operations. On coming to know of this the
appellants and accused 5 and 6 (since acquitted) came and protested against the ploughing of the
land which was in possession of appellants. It was alleged that appellants 1 to 4 had carried spade,
crow bar, knife etc. while accused 5 and 6 came unarmed. Appellant No. 1 prevented the deceased
from ploughing even though the deceased offered to pay the price of the land. Appellants 1 to 4
assaulted the deceased with their weapons while accused 5 and 6 gave him blows with their fists.
When P.Ws. 1, 2, 3 and Sikamani intervened to save the deceased they were also assaulted.
Sikamani was assaulted by appellant Nos. 1 and A-5 and 6. P.W. 2 was assaulted by appellants 1, 3
and 4 while appellants 5 and 6 gave her fist blows. P.W. 3 was assaulted by appellants 1, 2 and 3
while P.W. 1 was assaulted by all the appellants and the two acquitted accused 5 and 6. As a result
of the assault Jayavelu and P.Ws. 1, 2 and 3 suffered bleeding injuries and fell down. P.W. 6,
daughter of deceased who was a little away from the place of occurrence saw the accused running
away with their respective weapons and also saw the injured lying in the field with bleeding
injuries.
It was held that in this case the appellants were in possession of field since 50 years. The
deceased tried to dispossess the appellants by ploughing the field. In the altercation that took place
deceased was killed and some of his men injured. The .mention of the appellants was not to cause
the death of deceased but they had acted in exercise of their right of private defence. While acting in
exercise of right of private defence, the appellants cannot be said to be motivated by a common
intention to commit a criminal act. Common intention has relevance only to the offence and not to
the right of private defence. Therefore the appellants were not guilty of any offence.
It was further held that in exercise of the right of private defence only such force may be used
as may be necessary. But it is equally well settled that at a time when a person is faced with
imminent peril of life and limb of himself or other, he is not expected to weigh in golden scales the
precise force needed to repel the danger. Even if he, in heat of the moment, carries his defence a
little further than what would be necessary when calculated with precision and exactitude by a calm
and unruffled mind, the law makes due allowance for it.1
104. When such right extends to causing any harm other than death.—If the offence, the committing
of which, or the attempting to commit which occasions the exercise of the right of private defence, be
theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding
section, that right does not extend to the voluntary causing of death, but, does extend, subject to the
restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than
death.
COMMENT
This section justifies causing of any harm short of death.in the exercise of the right of private
defence of property if the offence committed or attempted to be committed is theft, mischief, or
criminal trespass simpliciter. This right is subject to the restrictions mentioned in section 99 of the
Code.
1. Subramani v. State of Tamil Nadu, 2002 Cri. L.J. 4102 (S.C).

As a consequence of section 104 persons already in possession of land have a right to inflict
any necessary injury short of death in the exercise of right of private defence of property to maintain
the possession and eject the accused. This section does not justify causing of death in exercise of the
supposed right of private defence.'
In Kunwar Sen v. Virsen,2 B was passing on pathway running through the field of the
accused. When B was in the midst of the field, accused C, D and E suddenly appeared with lathis
and kulhari and interrogated B. B begged to be excused and promised not to pass on that passage
again. Without listening to B's promises the accused attacked B with their respective weapons. B
received nine injuries and his ulna bone of right arm was. fractured. It was held that the accused
were liable for causing grievous hurt and were not entitled to the defence under this section because
they had exceeded the limits laid down in section 99 of the Code. In another case B assisted by his
friend C retaliated severely on D who trespassed into his house with the object of having intercourse
with his wife. It was held that B and C were not liable for any offence and were entitled to the
defence under this section.3
A finds crops sown by him being uprooted by B. Without having recourse to police help, he
seeks to protect his property and avoid further damage to it by attacking and causing injury to B. In
the fight that ensues B inflicts a knife wound on A which causes A's death. Here A on finding that
damage was being caused to his property was justified in taking all reasonable steps to prevent
further damage to it and the fact of not seeking police help would not deprive him of his right of
private defence. Since A only caused injuries which, being short of death, he was justified in
causing, B would be liable for causing A's death under section 304 I.P.C.
A true owner has a right to dispossess a trespasser while the latter is in the act or process of
trespassing. But once the trespass is accomplished successfully the true owner loses, this right and
in such cases he has to take recourse to the remedies available under the law. 4 In a case B and his
three sons were in unlawful possession of a land belonging to X. They had trespassed into X's land
about two years prior to the incident and had been openly cultivating it. On the eve of the incident B
had sown wheat in the fields. On the day of occurrence X went to his land along with others and
started ploughing the fields unlawfully sown by B. B and his sons tried to resist the ploughing
operations but X and his party persisted in destroying the crop sown by B. Ultimately B used his
lathi and killed X on the spot. On prosecution for murder B raised the plea-of private defence of
property. In this case since the trespass into X's land by B was accomplished, X ought to have taken
recourse to the remedies available under law. But X instead of seeking the remedy available to him
under the law took the law into his own hands by trying to plough the land sown by B, even though
illegally, so B, had the right to defend his property and could lawfully cause any harm short of
death. Since there does not appear to be the apprehension of death or grievous hurt to B, he had
exceeded his right of private defence of property. B would be liable not for murder but for culpable
homicide and would get the benefit of exception 2 to section 300.
A sees B trespassing on his land, he fires at and wounds B. It transpired that B had a right to
walk over A's land. Here A by mistake took B to be a trespasser. As such A had a right to cause any
1. Ramram Mahton, (1947) 26 Pat. 550.
2. (1969) Cr. L.J. 76.
3. Dhanmun Teli, (1873) 20 W.R. (Cri.) 36.
4. Ram Rattan v. State, 1977 Cri. L.J. 433 (S.C).
harm short of death in defence of his property. But because it was a simple case of trespass and A
had fired, it appears that he has caused more harm than was necessary to defend his property from
trespass. Therefore, A would be liable for causing hurt.
The right of private defence extends to protect the property against a
trespasser, but the right can be exercised only if there is no time to have recourse
» to protection of public authorities.1
In Iswar Behera v. State,2 the villagers trespassed into the land of the
accused to construct a house and the latter came to the spot with necessary force
to repel the entry of the aggressors without seeking the aid of public authorities.
It was held that the right of private defence of property justified the action. On
the question of the right of private defence of a person the court held that the
right existed against an offence and an act which gives rise to an offence cannot
be treated as a basis for the exercise of the right of private defence in favour
' of the aggressor.
A entered the house of B with the intention of committing theft. B and other
members of his family surrounded and attacked 'A' with lathis. Finding his life in danger
A whipped out a revolver and fired causing the death of B. Is A guilty of murder ? In
this case since A himself was a trespasser with the intention of committing theft
therefore he cannot claim the right of private defence. Hence A will be guilty of
committing murder. A was himself an offender and has voluntarily put himself in a
situation which gave him an occasion to fire in self-defence. An act which gives rise to
an offence cannot be treated as a basis for the exercise of right of private defence in
favour of the offender.
In Baljit Singh v. State of U.P.,3 it was held that the actual possession of the
disputed land permitted the accused the right to defend the property from being
dispossessed, nonetheless the right if exercised in pursuance of a combined assault on
the aggressors resulting in fatal injuries to them would defy the limits of lawful exercise
of the right.
In Bhaja Pradhan v. State of Orissa* the deceased had stolen the goat from the
cattle shed of the accused who chased him to recover his property and in the process of
recovering it, assaulted the deceased without knowing that the deceased had been hit on
the vital parts. It was held that the accused exceeded his right of private defence of
property and thereby committed offence of culpable homicide not amounting to murder
punishable under section 304, Part II.
In Jai Bhagwan v. State of Haryana,5 accused No. 2 was co-owner and
possessor of land where occurrence took place. He caused grievous hurt by
dangerous weapon. It was held that being one of the co-owners and possessor
* of land in dispute, the accused was entitled to protection of right of private
defence of property under section 104, I.P.C. and therefore his conviction under section
326 was set aside.
105. Commencement and continuance of the right of private defence of property.—The
right of private defence of property commences when a reasonable apprehension of danger tc
the property commences.
The right of private defence of property against theft continues till the offender has
1. M . Rahman v. State, 1977 Cr. L.J. 1293 (Gau.).

2. 1976 Cr. L.J, 611.
3. 1976 Cr. L.J. 1745 (S.C).
4. 1976 Cr. L.J. 1347 (Orissa).
5. 1999 Cr. L.J. 1634 (S.C).
effected his retreat with the property or either the assistance of the public authorities is obtained, or the property
has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or
attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of
instant hurt or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the
offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house-breaking by night continues as long as the house,
trespass which has been begun by such house-breaking continues.
COMMENT
This section indicates the commencement and continuance of the right of private defence of
property.
First clause.—In all offences against property where the right of private defence is available,
the right commences when a reasonable apprehension of danger to the property commences. For the
commencement of the right of private defence commencement of actual danger to the property is
not necessary, but merely reasonable apprehension of danger would be sufficient.' This means one
can act before actual harm is done. It is not a right of retaliation, so one need not wait until the
aggressor had started committing the offence which occasions the exercise of the right.2
A criminal riot broke out in a city. A crowd of one community surrounded the shop of 'A', a
member belonging to the other community. The crowd began to beat the doors of A's shop with
their lathis. A shot was then fired by A that caused the death of 'B' a member of the crowd. This
problem is based on Amjad Khan v. State,7, wherein the Supreme Court had held that the facts of the
case were sufficient to afford to the accused a right of private defence which extended to causing of
death, because the accused had reasonable ground to apprehend that death or grievous hurt would be
caused to his family, if he did not act promptly. He did not have to wait until the doors were broken
open and the mob had entered the shop. The threat to break it was implicit in the conduct of the
mob, and, with it, the threat to kill the inmates once the doors were forced. This was evident from
the fact that other muslim shops had been looted and muslim lives lost. Under the circumstances it
had to be held that the threat to menace of death or at least grievous hurt had already commenced at
the time when the accused fired shots, and that the firing of shots with the intent of staying a
frenzied mob was not use of more force than was necessary.
It was held that under Section 102 and 105 the right of private defence commences as soon as
reasonable apprehension of danger to the human body or the property of oneself or another person
commences to arise from an attempt or threat to commit an offence, even though the offence may
not be committed. While exercising the right of private defence of property, it is not at all necessary
that the person exercising the right should wait until his property or another's is actually looted, or a
house trespass actually occurs.
In determining whether the force employed in the exercise of the right was or was not more
than what was actually necessary, and whether the circumstances in which a person was placed
were or were not such as to warrant the causing of death, it is unreasonable to weigh the facts of a
case in too fine a set of scales i.e., 'golden scales'.
The facts of Amjad Khan's case were that a communal riot had broken out in the town of
1. Clmkradhar, (1964) 2 Cri. L.J. 696.
2. Barisa Mudi, 1959 Cri. L.J. 71.
3. AIR 1952 S.C. 165.
Katni in Madhya Pradesh between Sindhi refugees and local muslims. Muslims shops were looted
and some muslim lives were lost. The mob then approached the shop of the accused and his brother,
which were adjacent, and looted the brothers shop. The mob then beat upon the closed doors of the
shop of the accused with lathis. The dwelling quarter's of the accused's family were situated behind
his brothers shop. Before the mob could break into the shop, the accused fired two shots from his
gun, which resulted in the death of one man in the riotous crowd.1
Second clause.—The right of private defence of property against theft continues till (1) the
offender has effected his retreat with the property; or (2) the assistance of public authorities is
obtained, or (3) the property has been recovered. 2 In the opinion of H.S. Gour this section does not
say what becomes of the right if anyone of the contingencies is satisfied but the property remains
unrecovered. He says the primary object of the right is to enable the owner to recover his property,
therefore, the right exists till the purpose has been attained.3
There seems to be sufficient difference of opinion about the meaning of the words "till the
offender has effected his retreat with the property". One view is that the right of private defence
would come to an end after the offender successfully effects his retreat. Now, suppose A runs away
with B's watch, B, may chase him until he effects retreat, but the right of B does not end with A's
escape. If B sees A wearing the watch on any subsequent day he may forthwith seize A and recover
his watch using as much force as the case allows. 4 Of course, if a policeman be found at hand B
must take his help but he is not bound to put off the capture until he can find assistance of public
authorities. The other view is that once the thief has effected his retreat with the property the right
of private defence of property comes to an end and the owner cannot on subsequent times proceed
with violence against the thief.5 If the stolen property is seen in anothers' house one can enter the
house to regain his property and he would not be liable for criminal trespass. 6 But Nagpur High
Court has given a different opinion. In its view the owner has no right to invade the privacy of
another in order to capture his property. Such an entry 'would be a trespass'. 7 But if the house
belongs to the thief, then the owner may lawfully enter it in pursuit of the thief. 8 Final retreat would
mean when the thief has reached his final destination.9
Mayne expresses a somewhat different opinion when he observes : "The right of defence against injuries to property is governed by the same principles, namely,
the continuance of an injury which may be prevented. Therefore, resistance within justifiable limits may be continued so long as the wrongful act is going on. But when the
robber, for instance, has made his escape the principle of self-defence would not extend to killing him, if met with on a subsequent day. If, however, the property were found
in his possession, the right of defence would revive for the purpose of its recovery.'"
In State v. Sialh Nath Rai,2 the Allahabad High Court has expressed a different view that a
recapture of stolen property after an interval of time, however, justifiable, cannot be deemed an
1. Amjad Khan v. State, AIR 1952 S.C. 165.
2. Punjab Rao, A.I.R. 1945 Nag. 881.
3. Gour, H.S.; Penal Law of India (7th ed.) Vol. 1, pp. 490-91.
4. Jarha v. Surit Ram, 3 N.L.R. 177.
5. Mir Dad v. Crown, A.I.R. 1926 Lah. 74.
6. Jarha v. Surit Ram, 3 N.L.R. 177.
7. Punjab Rao v. Emp., A.I.R. 1945 Nag. 881.
8. Gour, U.S., Penal Law of India (7th Ed.) Vol. 1, p. 492.
9. Mir Dad v. Crown, A.I.R. 1926 Lah. 74.
exercise of the right of private defence of property. What is contemplated by section 105 seems to
be a recovery either immediate or made before the offender has reached his final retreat.
It is submitted that all this discussion about the meaning of the words "till the offender has
effected retreat" seems to be more of academic nature than based on practical considerations. In my
view there can, of course, be no question of revival of the right against a thief as suggested by
Mayne because theft is a continuing offence and if there is any right against the thief it continues so
long as the wrong continues. Further, the owner has every right to regain his property wheresoever
he sees it subsequently, may be that it is not in the exercise of his continued right of private defence
of his property.
Fourth Clause.—Against criminal trespass, the person in possession of the property has the
right of private defence so long as the trespass continues. In Hukam Singh} the accused forcibly
took two carts loaded with sugarcane through the field of M in which there were standing crops, in
transporting the sugarcane to the public passage running by the side of M's field. It was held that so
long as the accused were inside the field, the trespass had not come to an end and M had the right to
prevent the accused from continuing to commit the criminal trespass for whatever short distance
they had still to cover before reaching the public pathway. It was further held that the fact that the
accused's party could not get out of the field without committing further criminal trespass, did not
give them any right for insisting that they must continue the criminal trespass; they had to abide by
the direction of M.
In Rajesh Kumar v. Dharamavir} it was pleaded that the accused party attacked the
complainant party after the latter had damaged the outer door of their house. It was held that even
assuming the above plea as true, the causing of such damage would amount to mischief within
Section 426, IP. Code and therefore, in view of Section 105, IP. Code the accused would have been
entitled to exercise their right of private defence of property so long as the complainant party
continued in the commission of the mischief. In other words, after the damage was done, the
accused had no right of private defence of property. Therefore in this case the accused persons (i.e.,
respondents) had no right of private defence of property.
Fifth Clause.—According to this clause the right of private defence against house-breaking
continues only so long as the house trespass continues. In a case where B followed a thief and killed
him in the open, after the house trespass had ceased, B would not be successful in his plea of private
defence of property.5
106. Right of private defence against deadly assault when there is risk of liarm to innocent person. —If in the exercise of the right of private defence against an assault which
reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends
to

2. A.I.R. 1959 All. 233.
3. A.I.R. 1961 S.C. 1541.
4. 1997 Cri. L.J. 2242 (S.C).
5. Balakee Jalahed, (1868) 10 W.R. (Cr.) 9.
197
S. 106 ] GENERAL EXCEPTIONS
the running of that risk.
Illustration
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of
private defence, without firing on the mob, and he cannot fire without risk of harming young children
who are mingled with the mob. A commits no offence if by so firing he harms any of the children.
COMMENT
This section lays down that under certain circumstances the right of private defence of body
extends to the causing of harm to innocent persons. It is to be noted that this section applies only to
those cases where there is a reasonable apprehension of death and of no other harm lesser than
death viz., grievous hurt. Of course, harm caused to innocent persons must have been necessary
and it must not be excessive as the limitations imposed by Section 99 of the Code shall apply to this
section also by virtue of Section 97 of the Code. This section also justifies the causing of harm to
innocent persons by the person who faces reasonable apprehension of death.
CHAPTER V OF
ABETMENT
107. Abetment of a thing.—A person abets the doing pf a thing who— First.—
Instigates any person to do that thing ; or
Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the
doing of that thing ; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation or by wilful concealment of a material
fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing
to be done, is said to instigate the doing of that thing.
Illustration
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing
that fact and also that C is not Z, wilfully represents to A, that C is Z, and thereby intentionally causes A
to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything
in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to
aid the doing of that act.
COMMENT
When several persons take part in the commission of an offence, each one of them may
contribute in a manner and degree different from the others to the commission of it. The offence
may be committed by the hands of one person at the instigation of another person, while some
others may only be present for offering help at the time of commission of it, and still others may
help the principal culprit in procuring the tools. It is necessary, therefore, to mark the nature and
degree of participation of each of the persons to determine their degree of culpability. However,
several gradations of action do not necessarily imply different measures of guilt with a view to
distinctions in punishment.
English Law.—Under the English law distinction is made between Principals who may be
of the first or second degree and the accessories before and after the fact. Principal in the first
degree is one who commits or actually takes part in the commission of a crime. Principal in the
second degree is one who aids or abets the actual commission of a crime. Whoever directly or
indirectly incites, counsels, procures, encourages or commands any person to commit a felony is
accessory before the fact if the felony is committed in consequence thereof. Such a person if
present at the time of commission of a crime is called Principal in the second degree. Whoever
knowing that a felony has been committed by another person, receives, comforts or assists him in
order to enable him to escape from punishment is known as accessory after the fact. This
distinction in English Law has its relevance only in cases of felony but not in treason or
misdemeanours.
Illustration.-—A instigates B to murder M. C encourages B by saying 'maro, maro' and D
pu\s a lathi into his hand. B thereby kills M. E knowing that B had killed M harbours him in order
to enable him to escape from arrest.
Here B is the person who commits the offence and is therefore Principal in the first degree. \
D aids B by putting lathi into his hand and is therefore,
OF ABETMENT 251
200 INDIAN PENAL CODE f S. 107
incipal in the second degree. A and C are accessories before the fact for they instigate and
encourage B to kill M. E is the accessory after the fact for he assists him in escaping from
punishment.
Indian Law.—The Indian Penal Code makes a broad distinction between principals and
abettors but does not recognise the accessory after the fact except that harbouring of offenders has
been made a substantive offence in some cases.' Under the Indian Penal Code abetment is
constituted in the following ways :
(1) by instigating a person to commit an offence; or
(2) by engaging in a conspiracy to commit an offence; or
(1) by intentionally aiding a person to commit an offence. Abetment is an offence
only if the act abetted would itself be an offence
punishable under the Indian Penal Code or under any other law for the time being in force.
(1) Instigation
Instigation means the act of inciting another to do a wrongful act. One may abet the
commission of an offence by counselling, suggesting, encouraging, procuring or commanding
another to do an act. In order to constitute abetment by instigation some active proceeding towards
the perpetration of the crime is necessary. 2 To instigate means to actively suggest or stimulate by
any means or language, direct or indirect, whether it takes the form of express solicitation, or of
hints, insinuation or encouragement.3 It also means to goad or urge forward or to provoke, incite,
urge or encourage to do an act.4 Any form of language may be used but there must be reasonable
certainty in regard to the meaning of the words which an inciter may use. However, the actual
words need not be proved.5 A and B discovering that C intended to commit theft in Z's house,
arranged together to persuade him to steal therefrom certain articles for them. Here A and B will be
liable for abetment and C for committing theft.
Mere acquiescence, silent assent or verbal permission would not constitute instigation. For
instance, A tells B that he intends to murder C. B says 'do as you like'. A kills C. B cannot be said
to have instigated A to murder C, because instigation means some active suggestion or support to
stimulation to the commission of the Act. Advice per se does not amount to instigation. It may
amount to instigation provided it was meant actively to suggest or stimulate the commission of an
offence.6 Where the persons of influence who are aware of the object of an unlawful assembly
deliberately absent themselves from the locality in order to express sympathy with the object of the
assembly, they are not abettors.7
One Rahim knew that Karim was behind a bush. This fact was not known to Abbas. Rahim intending to cause Karim's death induced Abbas to fire at the bush.
Abbas fired and caused the death of Karim. In this case Rahim is liable for abetting murder of Karim by instigating Abbas to fire at the bush but Abbas will neither be liable
for murder nor for abetting the murder of Karim.
Wilful misrepresentation or concealment of a material fact.—Explanation I to section

107 of the Indian Penal Code says that instigation may be constituted of wilful misrepresentation or
1. Refer to sections 130, 136, 201, 212, 216 and 216-A of the I.P.C.
2. R. v. Taylor, 44 L.J.M.C. 67.
3. Aminudelin, (1922) 24 Bom. L.R. 534.
4. Parlmal Oiatterjee, (1932) 60 Cal. 327.
5. Prem Narain, A.I.R. 1957 All. 177.
6. Raghunath Dass, (1920) 5 P.L.J. 129.
7. Earn Alt Majumdar v. Emp., 4 C.W.N. 500.
wilful concealment of a material fact by one who is bound to disclose it. The illustration to this
explanation amply explains the instigation by wilful misrepresentation. Instigation by wilful
concealment is there where concealment relates to a material fact which one owes a legal duty to
disclose.
Instigation by letter.—Instigation may be direct or it may be by a letter. Where A writes a
letter to B instigating thereby to murder C, the offence of abetment by instigation is complete as
soon as the contents of the letter become known to B. 1 If the letter never reaches B it is only an
attempt to abet but not abetment.2 A mere request to do a thing may amount to instigation. For
instance, A offers bribe to B. a public servant. B refuses to accept but A commits abetment.
Similarly where A offers a bribe to B, a servant to sell his master's goods at less than the price of
the goods, A is guilty of instigations.3
Direct instigation.—Instigation is direct where one commands, orders, counsels or
encourages directly to do an act. For instance, A orders his servant B to beat C. Here A would be
liable for instigating B to cause hurt to C.4
In order to convict a person of abetting the commission of a crime by instigation, there must
be proof of direct incitement; it is not enough that a person has taken part in those steps of the
transaction which are innocent, but it is absolutely necessary to connect him in some way or other
with those steps of the transaction which are criminal. 5 Sometimes even an indirect suggestion
amounts to instigation provided it is affirmative and likely to produce the desired result. For
instance, A knew that B was likely to meet M's wife W for an innocent purpose. A with a view to
provoke M tells him that the likely meeting between B and W is for some illicit purpose. Now here
since the suggestion was made by A with a view to provoke M to attack, B. he would be guilty of
abetment by instigation.
But silent approval shown in anyway that had the effect of inciting and encouraging the
offence is abetment. In Queen v. Mohit,6 a woman prepared herself to become sutti in the presence
of the accused persons. They followed her upto the pyre and stood by her step sons crying "Ram
Ram". One of the accused also admitted that he told the woman to say "Ram Ram". It was held that
all those that followed her to the pyre and stood by her crying "Ram, Ram" would be guilty of
abetment as they actively connived and countenanced the act of becoming 'sutti'.
(2) Abetment by Conspiracy
Abetment by conspiracy consists when two or more persons engage in a conspiracy for the
doing of a thing and an act or illegal omission takes place in pursuance of the conspiracy and in
order to the doing of that thing. Thus in order that abetment by conspiracy may be constituted, three
things are necessary :—
1. Sheo Dial Mai, (1894) 16 All. 389.

2. Ransford, (1874) 13 Cox. 9.
3. Reg. v. De Kromme, 17 Cox. 492.
4. Rasookoollah, (1869) 12 W.R. (Cr.) 51.
5. Queen v. Nimchand, 20 W.R. (Cr.) 41.
6. 3 N.W.P. 316.
S. 107 ] OF 253
ABETMENT
(a) a conspiracy between two or mo/e persons;
(b) an act or illegal omission must take place in pursuance of that conspiracy; and
(c) such an act or illegal omission must also take place in order to the doing of the
thing conspired.
Conspiracy means an agreement between two or more persons :—
(a) to do an illegal act, or
(b) to do an act which is not illegal by illegal means.
Thus it is clear that for an offence under the second clause of section 107 a mere
combination of persons or agreement is not enough; an act or illegal omission must also take place
in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of
the thing agreed upon between them. But for an offence under section 120-A a mere agreement is
enough if the agreement is to commit an offence. 1 For abetment by conspiracy an overt act or
illegal omission in pursuance of that conspiracy must be done even though the agreement is to
commit an offence.
Clause (2) has to be read together with Explanation 5 of section 108, which provides that it
is not necessary to the commission of the offence of abetment by conspiracy that the abettor should
concert the offence with the person who commits it. It would be sufficient if he engages in the
conspiracy in pursuance of which the offence is committed. The illustration attached with the
explanation makes the position amply clear.
A mere conspiracy would not amount to abetment. If conspirators are detected before they
have done more than discussed plans, with a general intention to commit an offence, they would
not be liable as abettors. However, if their plan was to commit an offence they would be liable for
conspiracy under section 120-B of the Code.
In Pandala Venkatasaini,1 it was held that if a person prepares, in conjunction with others a
copy of an intended false document and buys a stamped paper for the purpose of writing such false
document and also asks for information as to a fact to be inserted in such false document, he would
be guilty for abetment of forgery because these are the acts done to facilitate the commission of the
offence. Where a woman, believing herself to be pregnant, but actually not being with child,
conspires with some other person to administer drugs to herself, to use instruments on herself, with
intent to procure abortion, she would be liable for conspiracy to procure abortion.3
Conviction for Conspiracy.—No person can be convicted for conspiracy if the charge against all other conspirators has failed,4 or if other alleged conspirators
are acquitted.5 In case of a charge of conspiracy against several persons, it would not be necessary for the prosecution to prove, before it can be held established that each
conspirator knew and had personal communication with all the rest, because some of them might be intermediaries.6
In Haradhan Chakrabarty v. Union of India,1 the petitioner was charged with offence of
abetment by conspiracy of commission of offence of theft by his officer Major Trilokchand and
nine others. It was alleged that Major Trilokchand committed theft of 250 wheel drums and nine
1. Pramatha Nath v. Saroj Ranjan, A.I.R. 1962 S.C. 876.
2. (1881) 3 Mad. 4.
3. Whitechurch, (1890) 24 Q.B.D. 420.
4. Jogjlban Ghase, (1909) 10 Cr. L.J. 125.
5. Faguna Kant, 1959 Cr. L.J. 917; See also Topandas, (1955) 2 S.C.R. 881.
6. Bum, (1909) 11 Bom. L.R. 1153 : 1909 Cr. L.J. 30.
others including the appellant abetted the offence. Major Trilokchand was found guilty but eight
abettors were acquitted by the Court martial. Later on Major Trilokchand was also acquitted by the
High Court in appeal and the special leave petition filed by the Union of India against the order of
the High Court was also dismissed. Thereafter, Major Trilokchand was reinstated in the service.
The petitioner then claimed that he alone cannot be convicted of abetment by conspiracy and as
such claimed to be reinstated in the service. It was held that the principal offender Major
Trilokchand was acquitted as substantive offence against him was not established and out of nine
abettors eight were also acquitted, therefore, only petitioner cannot be held guilty of abetment by
conspiracy because one cannot conspire with one self.
(3) Abetment by Aid
A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the
doing of that thing. Clause 3 of section 107 must be read with Explanation 2 of the section and if
read together it becomes clear that a person cannot be held guilty of aiding the doing of an act when
the act has not been done at all. Mere intention to facilitate, even coupled with an act calculated to
facilitate, is not sufficient to constitute abetment, unless the act which it is intended to facilitate
actually takes place and is facilitated thereby. 2 For instance, if a servant keeps open the gate of his
master's house, so that thieves may enter, and thieves do not come, he cannot be held to have
abetted the commission of theft. But if such a person, after having opened the door or before it,
informs possible thieves that he is going to keep the door open, then he encourages by his conduct
to commit theft and is guilty of abetment by instigation; or if prior to the opening of the gate he had
entered into an agreement with the thieves to keep the door open he would be guilty of abetment by
conspiracy. To take another illustration, A incites B to kill C by saying maw and D puts a lathi into
B's hand and C is killed or suffers injuries. Here A is liable for abetment by instigation and D
would be liable for abetment by aiding because he had facilitated the act by putting a lathi into B's
hand and the act has actually been committed. Where A hands B a paper bag containing some
poison to put into C's food but "suddenly changing his mind tells him not to do so, A would be
liable for abetment.
A mere giving of an aid does not make the act an abetment of an offence, if the person who
gives the aid does not know that an offence was being committed or contemplated. The intention
should be to aid the commission of an offence. But if the person who lends his support does not
know or has no reason to believe that the act which he was aiding or supporting was in itself a
criminal act, it cannot be said that he intentionally aids or facilitates the doing of the offence. 3 For
instance A, B and C are friends. A and B have fallen out so much so that A is determined to kill B.
A goes to the house of C, and on some pretext or other induces C to call B to his house. C has not
the least idea that A would kill B on his arrival. B arrives and is murdered by A. A had committed
murder.
In this case, there is no doubt that C aided in calling B to his house but he never knew why A
1. 1990 Cri. L.J. 1246 (S.C.).
2. Huda S.; The Principles of the Law of Climes p. 95.
3. Per Mukerjee J. in Ram Nath, (1924) 47 All. 268 at p. 275.
wanted him to send for B. Whatever C did, he did intentionally, for it was certainly his intention
that B should come. But, it was not C's intention that a crime should be committed. Therefore, C
cannot be held guilty of abetment of murder.
'A' intends to kill 'B'. He prepares poison and mixes the same with some food material and
gets the same placed at the dining table of 'B' through B's servant who is in knowledge of the same.
In this case A will be liable for abetting the offence of murder in case B was killed . Otherwise A
will be liable for abetting to attempt to murder. The servant will also be liable for abetment by
aiding.
Mere presence does not amount to aiding.—Mere presence at the commission of an
offence does not amount to intentional aid, unless it was intended to have'that effect. To be present
and aware that an offence is about to be committed does not constitute abetment unless the person
so present holds some position of authority, rank or influence of such a nature, that his
countenancing the offence, under the circumstances, be held a direct encouragement or unless
some' specific duty of prevention rests on him which he leaves unfulfilled in such a manner that he
may be safely taken as having joined in conspiracy for preparation of the offence.'
Aid by illegal omission.—Aid may be rendered by act as well as by illegal omission. When
the law imposes on a person a duty to discharge, his failure to discharge renders him liable to
punishment.2 In Queen v. Kali Churn,3 a head-constable who knew that certain persons were likely
to be tortured for the purpose of extorting confession, purposely kept out of the way. He was guilty
of abetment within the meaning of Explanation 2. In such cases it is necessary to show that the
accused intentionally aided the commission of the offence by his non-interference. 4 But an
omission to give information that a crime has been committed does not amount to aiding, unless
such omission involves a breach of legal obligation.5
Aid by act—In Emp. v. Faiyaz Hossein? a zamindar lent a house to a Police Officer who
was investigating a case, knowing that the house would be used for torturing a suspected thief. He
was guilty of abetment.
In Emp. v. Ram Lai,7 some persons did their best to dissuade a woman from becoming a
suttee. They had also given information to the nearest police station, but finding it impossible to
dissuade her complied with her wishes and helped her in becoming sutti. They were all held guilty
of abetment. Similarly in R. v. Fretwell? an English case, the prisoner procured poison at the desire
of and under a threat of self-destruction by a pregnant woman. The prisoner knew that the poison
was to be used for procuring abortion but he did not administer it to the woman nor cause it to be
taken by her. He also expected that she would change her mind and not resort to it. The woman
who was pregnant took a dose of* poison and died. The prisoner was held not guilty of being an
accessory before the fact.
1. Lakshmi, (1886) Cr.R.No. 5 of 1886 Unrep. Cr. C. 303.

2. Emp. v. Latif Khan, 20 Bom. 394.
3. 21 W.R. (Cr.) 11.
4. Khaja Noorul Hossein v. Fabre Totmere, 24 W.R. (Cr.) 26.
5. Queen v. Khadim, 4 B.L.R.A. (Cr.) 7.
6. 16 A.W.N. 194.
7. 36 All. 26.
8. L. & C. 161.
By affording facility.—The facility given must however, be such as is essential for the
commission of the crime. The mere act of allowing an illegal marriage to take place at one's house
does not amount to abetment.1 Similarly, it was held in Emperor v. Umi,2 that mere consent to be
present at an illegal marriage or actual presence in it, or the grant of accommodation in a house for
the marriage does not necessarily constitute abetment of such illegal marriage; but the priest who
officiates and solemnizes such illegal marriage is guilty of abetting an offence of bigamy under
section 494 Indian Penal Code. So also in Malan,1 the accused who held the antarpat (i.e. Screen)
during the performance of a marriage which he knew was a void marriage under section 494 Indian
Penal Code, was held liable for abetment by aiding.
In Moung Ba Yoke v. Ma Hla Kin* a motor car was so used with the knowledge of the owner
or under his orders, the owner could not be held guilty of abetting abduction. Where A strikes B,
who by such provocation is excited to a violent rage, Z, a bystander puts a knife into B's hand with
an intent to cause B to kill A, and B kills A by stabbing with knife, B will be liable for culpable
homicide not amounting to murder, and Z will be liable for abetment to commit murder because he
had aided B with an intention to kill A.
Attempt.—The abetment of an offence is itself a substantive offence. Abetment is an
offence within the meaning of the term under section 40 I P.C. also. Therefore, attempt to commit
the offence of abetment will be well covered by the provisions of section 511 of the Code.5
In receiving consideration of Rs. 10,000 'A' agrees to supply 'B' with tools so that he could
derail a Calcutta bound train. A supplied the tools to B. In this case the offence abetted by
intentional aiding has not been accomplished. But A has facilitated the commission of derailment
which has not been committed. Therefore A will be liable for attempting to abet by intentionally
aiding the derailment of the train.
108. Abettor.—A person abets an offence, who either abets the commission of an offence, or the
commission of an act which would be an offence, if committed by a person capable by law of committing
an offence, with the same intention or knowledge as that of the abettor.
Explanation J.—The abetment of the illegal omission of an act may amount to an offence although
the abettor may not himself be bound to do that act.
Explanation 2.—To constitute the offence of abetment it is not necessary that the act abetted
should be committed, or that the effect requisite to constitute the offence should be causedr~
Illustrations
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A
is guilty of instigating B to commit murder.
Explanation 3.—It is not necessary that the person abetted should be capable by law of committing
an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any
guilty intention or knowledge.
1. Queen v. Kudum, (1864) W.R. 13.
2. (1882) 6 Bom. 126.
3. (1957) 60 Bom. L.R. 428.
4. A.I.R. 1933 Rang. 297.
5. R. Spier, (1887) P.R. No. 49 of 1887.
Illustrations
(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if
committed by a person capable by law of committing an offence, and having the same intention as A. Here A,
whether the act be committed or not, is guilty of abetting an offence.
(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which
causes Z's death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z's
death. Here, though B was not capable by )aw of committing an offence, A is liable to be punished in the same
manner as if B had been capable by law of committing an offence, and had committed murder, and he is,
therefore, subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of mind being
incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the
house in consequence of A's instigation. B has committed no offence, but A is guilty of abetting the offence of
setting fire to a dwelling-house and is liable to the punishment provided for the offence.
(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's
possession. A induces B to believe that the property belongs to A. B takes the property out of Z's possession, in
good faith believing, it to be A's property. B, acting under this misconception, does not take dishonestly, and
therefore, does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B
had committed theft.
Explanation 4.—The abetment of an offence being an offence, the abetment of such an abetment is also
an offence. ,
Illustration
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that
offence in consequence of B's instigation. B is liable to be punished for his offence with the punishment for
murder, and, as A instigated B to commit the offence, A is also liable to the same punishment.
Explanation 5.—It is not necessary to the commission of the offence of abetment by conspiracy that the
abettor should concert the offence with the person who commits it. It is sufficient if he engages in the
conspiracy in pursuance of which the offence is committed.
Illustration
A concerts with B a plan of poisoning Z. It is agreed that A shall administer the poison. B then explains
the plan to C mentioning that a third person is to administer the poison, but without mentioning A's name. C
agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner
explained. A administers the poison, Z dies in consequence. Here, though A and C have not conspired together,
yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has, therefore,
committed the offence defined in this section and is liable to the punishment for murder.
COMMENT
In case of offence of abetment active complicity, on the part of the abettor, prior to the time
of actual commission of the offence is necessary.'
The abettor must substantially assist the principal culprit towards the commission of the
offence. Para (1) of section 108 defines abettor. Abettor means :
(a) one who abets the commission of an offence, or
(a) one who abets the commission of an act which would be an offence if
committed by a person not suffering from any physical or mental incapacity.
What amounts to abetment is already explained in section 107. Therefore, abettor is one who
instigates, aids or engages in a conspiracy within the meaning of section 107. An abettor falling in
category (b) as stated above may be explained with the help of an illustration. Suppose A instigates
B, a lunatic to kill C. B kills C. Here B being a lunatic would be excused under section 84 of the
1. Molazim Tewari, (1961) 2 Cr. L.J. 266.

Code and would not be liable for murder, but A would still be liable for the offence of abetment
because A has abetted the commission of the offence of killing which would be an offence if
committed by a person who is not a lunatic. Mere subsequent knowledge of the offence does not
constitute abetment.1 Abetment is a substantive offence. Therefore, conviction of an abettor is not
dependent on the conviction of the principal or the person abetted. 2 A person who has been
convicted of an offence as principal cannot be punished as abettor also.3
Explanation 1.—This explanation makes it clear that if a public servant is guilty of an
illegal omission of duty which is made punishable by the Code and a private person instigates or
aids him not to do his legal duty then he is said to have abetted the offence of which such public
servant is guilty, though the abettor, being a private person, could not himself have been guilty of
illegal omission of that duty.
Explanation 2.—There are two parts of the explanation. According to first part the offence
of abetment is complete even though the person abetted refuses to do the act abetted or fails
involuntarily on doing it, or does the act but the expected result does not follow. The offence of
abetment by instigation depends upon the intention of the person who abets, and not upon the act
which is actually done by the person abetted.4
The latter part says that to constitute the offence of abetment it is not necessary that the
effect requisite to constitute the offence should be caused. Illustration (b) explains this situation
fully well. There B in pursuance of the instigation stabbed D and D also recovered from the wound.
A had instigated B to murder D. Since D recovered from the wound it is clear that requisite effect
to constitute the offence of murder was not caused, but even then A is guilty of instigating B to
commit murder. Thus an offence can be abetted though the means which are intended to be
employed are such that it is physically impossible that the effect requisite to constitute the offence
should be caused by them.5
In a case the accused offered money to C for killing or disabling B by means of charms. It
was left upon the choice of C to decide whether to kill or disable B. B was in fact killed. The
accused was guilty of abetment of murder.6
A instigates B to give false evidence, B does not give false evidence. Has A committed any
offence ? In this case A will be liable for instigating B to give false evidence. According to
Explanation 2 of section 108 to constitute an offence of abetment it is not necessary that the act
abetted should be committed.
Explanation 3.—According to this explanation it is not necessary that the person abetted
should have any guilty intention or knowledge at all. He may not be capable by law of committing
an offence. Further, he may not have the same guilty intention or knowledge as the abettor. Thus
the entire emphasis is on the criminality and guilty intention of the abettor and not the person
abetted. The person abetted may do an act without any criminal intention or knowledge or may not
be capable of forming such criminal intention as the offence committed requires, therefore, he
would not be liable. But even then the abettor who instigated that person to do that act would be
1. Shumeeruddeen, (1865) 2 W.R, (Cr.) 40.
2. Maruti Dada, (1875) 1 Bom. 15.
3. Jeetoo Chowdhry, (1865) 4 W.R. (Cr.) 23.
4. Inuimdi Bhooyah, (1973) 21 W.R. (Cr.) 8.
5. Sahib Ditto, (1885) P.R. No. 20 of 1885.
6. Ibid.
liable as abettor although the person abetted was not held liable. 1 Illustration (d) makes it quite
clear that in order that abettor may be punished it is, not necessary that the person abetted should
have committed the offence and been punished. It is also clear from illustration (b), (c) and (d) that
if a man,does, by means of an innocent agent, an act which amount to a crime, the employer is
liable although the agent is not liable. The agent is not liable because he lacks capacity to form the
criminal intent because of his immaturity or unsoundness of mind or he may act under a mistake of
fact.
This explanation applies to all kinds of abetmenl) : instigation, aiding or conspiracy.
Explanation 4.—This explanation makes it clear that abetment of an offence is a substantive
offence. Abetment of an offence is an 'offence' under section 40, I.P.C. also. Therefore, abetment of
abetment is also an offence. Illustration attached to this explanation demonstrates the position very
clearly. However, the words "abetment of an offence being an offence" do not mean that "when an
abetment of an offence is actually committed", then only one who abets the offence of abetment
shall be liable. It simply means that when the offence of abetment according to its definition under
the Code is constituted then abetment of the offence of such abetment shall be an offence. This can
be made easier by an illustration. A instigates B to instigate C to murder D. B does not instigate C
or refuses to incite C but even then A would be liable for abetment. In a case 'A' paid Rs. 50/- to B
to be handed over to C, a medical officer as a bribe. B did not pay the money to C. A brought a suit
of criminal misappropriation against B. of which he was convicted. Later on A was prosecuted for
abetting the commission by B of the offence of bribing a public servant. A was held guilty of
abetment of an offence under section 161 read with section 116, although B did not abet C. 2 The
abetment of an abetment is an offence though the second abetment is ineffective. 3 Thus a person
may make himself an abettor by intervention of a third person, without any direct communication
between himself and the person employed to do the thing. In the illustration mentioned above there
was no direct communication between A and C. C was the person employed to do the desired act. B
was the third person between the abettor and the person employed to do the act.
In Mst. Bakhtawarf the accused asked D, a medical practitioner and her neighbour to supply
her with medicine for the purpose of poisoning her son-in-law. D supplied her with the medicine. It
was held that D was liable as an abettor to abet the lady to commit the murder of her son-in-law.
To take another illustration; suppose A telephones B asking him to procure two girls for
immoral purposes. No particular girls are named. Here A was inciting B to incite the girls to
commit an offence, so A would be liable as an abettor.5
A instigates B to instigate C to murder D. In consequence B writes a letter to C instigating him to murder D. C does not read the letter In this case A is liable for
abetting murder, and B is liable only for attempt to abet murder as he has written the letter instigating him to murder D but the letter was not read by G. Unless the
1. Khushi Mohammad, (1940) 42 P.L.R: 447.

2. Prov. Govt. CP. & Berar v. Murlidhar, 1942 N.L.J. 104.
3. Rajaratnam, A.I.R. 1951 Mad. 626.
4. (1882) P.R. No. 24 of 1882.
5. See Bentley, (1923) 1 K.B. 403.
instigation of B comes to the knowledge of C, B cannot be held liable for abetment of murder but only attempt to commit abetment of murder.
Explanation 5.—This explanation applies to abetment by conspiracy. According to this it is

not necessary that all persons joining in any conspiracy must be aware of every secret or every
minute detail of it. A number of persons may be involved in a conspiracy and each one of them
may play distinct roles. May be that someone of them to do not have the knowledge of the details,
but if he engages in the conspiracy in pursuance of which the offence is committed, he would be
liable. It is not necessary that the abettor should concert the offence with the person who commits
it. Illustration to this Explanation makes the position sufficiently clear. To take another illustration,
A and B conspired together for making and engraving a plate for the purpose of forgery. A only
gave an order to C for the manufacture of the plate. C never saw B until the plate was
manufactured. Here both A and B would be liable for making and engraving the plate although one
of them, namely, B never knew about the innocent agent C
108-A." Abetment in India of offence outside India.—A person abets an offence within the meaning of
this Code, who in India, abets the commission of any act without and beyond India which would constitute an
offence if committed in India.
Illustration
A, in India, instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of abetting murder.
COMMENT
This section provides for the punishment of abetment of the commission of an offence
outside India. The abetment is committed in India though the person abetted is on a foreign
territory, or the offence' abetted is or may be committed outside India. It is also necessary for the
application of this section that the offence abetted shall constitute an offence if committed in India.
This illustration has become obsolete and ought, therefore, to be substituted because Goa,
being part of Indian territory, is no more a place outside India.
109. Punishment of abetment if the act abetted is committed in consequence and where no express
provision is made for its punishment.—Whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code for the punishment of such
abetment, be punished with the punishment provided for the offence.
Explanation.—An act or offence is said to be committed in consequence of abetment, when it is
committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which
constitutes the abetment.
Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's
official function. B accepts the bribe. A has abetted the offence defined in section 161.
(b) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A
is guilty of abetting that offence and is liable to the same punishment as B.
(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it
to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z, in
A's absense and thereby cause Z's death. Here B is guilty of murder. A is guilty of abetting that offence by
conspiracy and is liable to the punishment for murder.
This section provides for the same punishment to the abettor as that which 1. Bull, (1845) i
Cox. 281.
COMMENT
S. 111
OF ABETMENT
may be inflicted on the principal offender provided that—

(a) the act abetted is committed in consequence of the abetment; and
(b) no express provision is made in the Code for the punishment of such an abetment.
This section only lays down that if separate punishment has not been provided by the Code for an
abetment then it would be punishable with the punishment provided for the original offence. 1
The explanation makes it clear that the abetment may be of any one of the three kinds i.e. instigation,
aiding or conspiracy.
In Munnuswamy and others v. State of Tamil Nadu,2 A was waiting for D at roadside. B and C
followed D on bicycle. D was also on bicycle. A, B and C stopped D. Apprehending danger D started running
for life but was overpowered by A and B. Thereafter A and B held hands of D and on being exhorted by A to
stab D the third accused C inflicted blows with a knife on some vital parts of the body of D. Injuries were caused
to vital organs like chest and parietal region resulting in death of D. From the facts and circumstances it is clear
that the three appellants must have entered into a conspiracy for killing D and pursuant thereto A waited at the
spot while B and C followed the deceased on their bicycle. All of them chased D and when he was overpowered
by A and B, C inflicted injuries on being ordered by A. In the facts and circumstances of the case it cannot be
said that the act of C was merely his individual act. It was held that this is a case of abetment by conspiracy in
which all the three conspirators were present and actively participated when plan was executed. Therefore C was
guilty of murder under section 302 and A and B were guilty of the offence under section 302 read with section
109, Indian Penal Code.
110. Punishment of abetment if person abetted does act with a different intention from
that of abettor.—Whoever abets the commission of an offence shall, if the person abetted does
the act with a different intention or knowledge from that of the abettor, be punished with the
punishment provided for the offence which would have been committed if the act had been
done with the intention or knowledge of the abettor and with no other.
COMMENT
This section provides that though the person abetted commits the offence with different intention or
knowledge from that of the abettor, yet the abettor would be punished with the punishment provided for the
offence abetted. This section should be read conjointly with Explanation 3 to section 108. If the two are read
together it becomes clear that the liability of the person abetted is not affected by this section and a person may
be guilty of abetment although the person abetted may not even be capable by law of committing the offence or
has not the same guilty intention or knowledge as that of the abettor. 3
111. Liability of abettor when one act abetted and different act done.—When an act is
abetted and different act is done, the abettor is liable for the act done, in the same manner
and to the same extent as if he had directly abetted it :
Proviso.—Provided the act done was probable consequence of the abetment, and was committed
under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted
the abetment.
Illustrations
(a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child
in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that
of Z. Here, if the child was acting under the influence of A's instigation, and the act done was under the
circumstances a probable consequence of the abetment, A is liable in the same manner and to the same
extent as if he had instigated the child to put the poison into the food of Y.
(b) A instigates B to burn Z's house. B sets Fire to the house and at the same time commits theft of
property there. A, though guilty of abetting the burning of the house, is not guilty of abetting the theft, for
the theft was a distinct act, and not a probable consequence of the burning.
1. Sesha Ayyar v. Venkatasubha Chetty, A.I.R. 1924 Mad. 487.
2. 2002 Cri. L.J. 3915 (SC).
3. Pramath Nalh Harabab, (1953) 1 Cal. 81.
(c) A instigates B and C to break into an inhabited house at mid-night for the purpose of robbery, and
provides them with arms for that purpose. B and C break into the house, and being resisted by Z, one of the
inmates, murder Z. Here, if that murder was the probable consequence of the abetment, A is liable to the
punishment provided for murder.
COMMENT
One of the principles underlying the provisions of section 111 is that "every man is presumed to intend
the natural consequences of his act". Therefore, this section applies only when the act done is the probable
S. 111
OF ABETMENT
consequence of the abetment.' When an act, different from that which was abetted, is committed the abettor shall
be liable for the abetment of that offence if (a) the act done was a probable consequence of the abetment, and (b)
the act was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy
which constituted the abetment.
In Mathura Das,2 it was observed by Straight, J„ that "If one man instigates another lo perpetrate a
particular crime, and that other in pursuance of such instigation, not only perpetrates that crime, but, in the
course of doing so, commits another crime in furtherance of it, the former is criminally responsible as an abettor
in respect of such lastmentioned crime, if it is one which, as a reasonable man, he must at the time of the
instigation, have known would, in the ordinary course of things, probably have to be committed in order to carry
out the original crime."
What is clear from the above observation is that when an act different from that which abetted is
committed it must have been committed in the course of doing the act abetted and it must also be such as the
abettor may fairly be presumed to have foreseen as a probable consequence of his instigation. However, it is not
necessary that the abettor should know it to be a probable consequence.3
Probable Consequences.—In Girija Prasad,4 the Allahabad High Court observed that a probable
consequence of an act is one which is likely or which can reasonably be expected to follow from such act; an
unusual or unexpected consequence cannot be described as a probable one. When the act done is different from
the act instigated, an abettor is only liable for such a different act if it was a likely consequences of the
instigation or if it was an act which the instigator could reasonably have been expected to foresee might be
committed as a result of his instigation.
The three illustrations to the section exemplify the section very clearly. They also make it clear that
section 111 applies not only when an offence other than that which was abetted is committed but also where a
different person is attacked in pursuance of the conspiracy. 5 The test is whether having regard to the immediate
object of the instigation or conspiracy, the act done by the principal is one which according to ordinary
experience and commonsense, the abettor must have foreseen as probable. 6 Where A incites B to steal C's goods
on the road but B breaks into C's house, A would be guilty of abetment provided the house-breaking is in
consequence of A's instigation. In this case it appears to be the probable consequence of instigation by A,
therefore, he would be liable. Where B abets A to murder C and A kills another man D believing him to be C,
but he happened to be a friend of A and B who had no malice against him and were even sorry that he was
killed. In this case B would be liable for abetment and A for murder because the act done was the probable
consequence of the abetment.
112. Abettor when liable to cumulative punishment for act abetted and for act done. —If the act for
which the abettor is liable under the last preceding section is committed in addition to the act abetted and
constitute a distinct offence, the abettor is liable to punishment for each of the offences.
1. Mumtaz All, A.l.R. 1935 Oudh 473.

2. (1884) 6 All. 491 at p. 494.
3. M. & M. 9.
4. (1934) 57 All. 717.
5. See Illustration (a).
6. Per Douglas Straight, J., Mathura Das, 6 All. 491.
S. 114 ] OF ABETMENT 211
Illustration
A instigates B to resist by force a distress made by a public servant. B, in consequence resists that
distress. In offering the resistence, B voluntarily causes grievous hurt to the officer executing the distress.
As B has committed both the offence of resisting the distress, and the oit'ence of voluntarily causing
grievous hurt, B is liable to punishment for both these offences; and, if A knew that B was likely
voluntarily to cause grievous hurt in resisting the distress, A will also be liable to punishment for each of
the offences.
COMMENT
This section virtually pushes to its logical consequence the rule enacted in section 111. It
enlarges the liability of the abettor who shall be liable for the offence abetted as well as the offence
committed provided that the two offences were distinct.
113. Liability of abettor for an effect caused by the act abetted different from that intended
by the abettor.—When an act is abetted with the intention on the part of the abettor causing
a particular effect, and an act for which the abettor is liable in consequence of the abetment,
causes a different effect from that intended by the abettor, the abettor is liable for the effect
caused in the same manner and to the same extent as if he had abetted the aci with the
intention of causing that effect, provided he knew that the act abetted was likely to cause that
effect.
Illustration
A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous
hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death,
A is liable to be punished with the punishment provided for murder.
COMMENT
This section supplements the provisions of section 111. This section deals with a case where
the act done is the same as the act abetted but its effect is different. In this section the liability of the
abettor depends upon 'his knowledge of the likelihood of the effect'. The measure of criminal
liability under section 111 is the probability of the consequence and the measure of liability under
this section is not the probability but the knowledge of the likelihood of the effect produced.
Knowledge is subjective while probability is objective. An act may be probable without the abettor
knowing it to be likely while the abettor may know an act to be likely and yet the effect may not be
probable.
This section does not necessarily exclude a case under section 111 because the act done may
be both the probable consequence of the abetment as well as it may cause an effect which the
abettor knew. For instance, A orders B to take a loaded gun and waylay C and rob him. C was
armed with a sword and A cautions B on no account to kill him unless to save himself. B attacks C,
whereupon C draws his sword and B then fires and kills C and robs him also. Here A is liable both
under Sections 111 and 113, inasmuch as A knew that C's murder was probable.
114. Abettor present when offence is committed.— Whenever any person who, if 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.
COMMENT
For application of this section the following things must exist—
(a) The nature of the act done must constitute an offence;
(b) The act or offence in consequence of the abetment is committed;
(c) The abettor is present at the time of commission of the act or offence, though
another actually commits the offence.
In Barendra Kumar Ghosh v. Emp.,' it was observed that this section "is only brought into
operation when circumstances amounting to abetment of a particular crime have first been proved,
and then the presence of the accused at the commission of that crime is proved in addition...Section
1. (1924) 52 I.A. 40.
114 deals with the case, where there has been the crime of abetment but where also there has been
actual commission of the crime abetted and the abettor has been present thereat, and the way in
which it deals with such a case is this. Instead of the crime being still abetment with circumstances
of aggravation, the crime becomes the very crime abetted. The section is evidently not punitory
because participation de facto... 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 Sec. 34."
Thus the offence of abetment must be complete apart from the mere presence of the abettor 1
and the offence abetted must also be committed. For instance, if A incites B to kill C then A is
liable for abetment; if the offence abetted is committed and A is absent, he would be liable under
section 109; and if he is present at the time of commission of the oifence he is deemed to have
committed the offence and is liable as a principal. The abetment must have been completed before
the actual offence is committed. 2 For the application of this section it is necessary that a person
must abet the commission of the offence sometimes before at a different place and then also is
present when the offence is committed. 3 Thus, it is necessary first to show the circumstances which
constitute abetment, so that if absent, he would have been liable as an abettor, and then to show that
he was also present when the offence was committed. 4 This section is not applicable to a case where
the abetment is committed at the time when the offence takes place and the abettor helps in the
commission of the offence.
A with the intention of causing death of Z instigates B to put poison in R's food. B, a child of
6 years puts the poison given by A in Z's food as a result of which Z dies. A was also present when
B put the poison. In this case the child B will not be guilty of any offence but A who has abetted the
offence and was also present when B put the poison given by A in Z's food although A intended it
to be put in R's food would be liable for abetting murder of Z under section 114 of the Indian Penal
Code. B the child had put the poison in Z's food by mistake in presence of A and A did not prevent
him to do so. Therefore A is liable for abetting the offence of murder.
Meaning of 'present'.—The presence required is at the time when the act abetted is
committed. To be present one need not always be an eye or ear witness of the transaction. He need
not necessarily be present during the whole of the transaction. In the eyes of laws a person is
present if, with the intention of giving assistance, he be near enough to afford it, should occasion
arise.5 The word 'present' means sufficiently near to render assistance. 6 For instance, a conspirator
who remains at watch outside when his fellows loot the house in pursuance of the common design
cannot escape liability because he is deemed to be present.7
Distinction between sections 114 and 34.—Under section 34 if a criminal
. 1. Krishnasami Naidu. (1927) 51 Mad. 263.

2. Ram Ranjan Roy, (1914) 42 Cal. 422; Kochu Cherukka, (1964) 1 Cr. L.J, 375.
3. Nanhoo Kedar, A.I.R. 1962 M.R 91.
4. Chhotcy, A.I.R. 1948 All. 114.
5. Stewart, R & R 363; Kelly, R & R 421.
6. Bingley, R & R 446.
7. Khandu, (1899) 1 Bom. L.R. 351.
acVis Tione~~oy several persons, In furtherance of the common intention of all, each of them is
liable as if it were done by himself alone although only one of them may have committed the actual
crime. Section 114 refers to cases where a person either by instigating or by aiding or by conspiring
previous to the commission of the act-renders himself liable as an abettor by being present only
when the act is committed, although he may have taken no active part in the doing of it. Both these
sections contemplate cases where an offence has been consummated. The effect of section 114
seems to be to confine, the punishment for abetment, as provided in sections 109, 115 and 116, to
persons who abet an offence and are absent when the offence abetted takes place, those who are
present being deemed as principals. Cases under section 114 must fall under section 107 and have
the additional element of presence at the commission of crime. Cases falling under section 34 are,
however, distinct from cases of abetment and will apply to all offences described under the Penal
Code, for otherwise the section would apparently serve no useful purpose.
Section 114 may be said to be wider than section 34 in one respect. For instance, an
instigator working through an innocent agent would not be liable under section 34, while he could
be liable under section 114.
Section 114 introduces a statutory fiction whereby an abettor is treated as if he had actually
committed the offence himself, by reason of his presence at the time and place of the offence. There
need not be any abetment in a case under section 34; so also there need be no common intention in
a case under section 114.
115. Abetment of offence punishable with death or imprisonment for life.—If offence not committed.—
Whoever abets the commission of an offence punishable with death or imprisonment for life, shall, if that
offence be not committed in consequence of the abetment, and no express provision is made by this Code for the
punishment of such abetment, be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine ;
If act causing harm be done in consequence.—and if any act for which the abettor is liable in
consequence of the abetment, and which cause's hurt to any person, is done, the abettor shall be liable to
imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to
fine.
Illustration
A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been
subject to the punishment of death or imprisonment for life. Therefore, A is liable to imprisonment for a term
which may extend to seven years and also to a fine ; and if any hurt be done to Z, in consequence of the
abetment, he will be liable to imprisonment for a term which may extend to fourteen years and to fine.
COMMENT
This section deals with the cases of abetment of certain offences which are either not
committed at all, or not committed in consequence of abetment or committed only in part. This
section applies to those cases of abetment of an offence punishable with death or imprisonment for
life where no express provision is made by the Code for the punishment of such abetment. The
words "express provision" seems to refer to sections in which specific cases of abetment of offence
punishable with death or imprisonment for life are dealt with. 1 Sections 121 and 131 make an
express provision for abetting an offence punishable with death or imprisonment for life.
For the application of para 1 of section 115 two conditions are necessary,
1. Emperor v. Dwarika Nath Gaswami, (1932) I.L.R. 60 Cal. 427.

namely, (i) the offence abetted must not have been committed; and (ii) no express provision is made
by the Code for the punishment of such abetment.
116. Abetment of offence punishable with imprisonment—If offence be not
committed.—Whoever abets an offence punishable with imprisonment shall, if that offence be
not committed in consequence of the abetment, and no express provision is made by this Code
for the punishment of such abetment, be punished with imprisonment of any description
provided for that offence for a term which may extend to one-fourth part of the longest term
provided for that offence, or with such fine as is provided for that offence, or with both ;
// abettor or person abetted be a public servant whose duty it is to prevent offence.—and if the abettor
or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the
abettor shall be punished with imprisonment of any description provided for that offence, for a term
which may extend to one-half of the longest term provided for that offence, or with such fine as is
provided for the offence, or with both.
Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's
official function. B refuses to accept the bribe. A is punishable under this section.
(b) A instigates B to give false evidence. Here, if B does not give false evidence, A has nevertheless
committed the offence defined in this section, and is punishable accordingly.
(c) A, a police officer, whose duty it is to prevent robbery, abets the commission of robbery. Here,
though the robbery be not committed, A is liable to one-half of the longest term of imprisonment provided
for that offence, and also to fine.
(d) B abets the commission of a robbery by A, a police officer, whose duty is to prevent that offence.
Here, though the robbery be not committed, B is liable to one-half of the longest term of imprisonment
provided for the offence of robbery, and also to fine.
COMMENT
Various sections of this Chapter deal with different situations relating to abetment. These are :
(i) Cases where no offence is committed. Here the offender is
punishable under sections 115 and 116 for the mere abetment to commit a
crime.
(ii) Where the very act abetted is committed, then sections 109 and
110 shall apply.
(iii) Where some act different than what was abetted but naturally
flowing from the act abetted is committed, here section 111 or 113 may
apply.
This section provides for the punishment of abetment of an offence punishable with
imprisonment. The two conditions for application of para 1 of this section are very much similar to
those of the preceding section, namely, that (i) the offence abetted be not committed, and (ii) no
express provision is made by the Code for the punishment of such abetment. Illustrations attached
clearly exemplify the position under both the paras.,
117. Abetting commission of offence by the public or by more tluin ten persons.—Whoever
abets the commission of an offence by the public generally or by any number or class of
persons exceeding ten, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
Illustration
A affixes in a public place a placard instigating a sect consisting of more than ten members to meet
at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in
a procession. A has committed the offence defined in this section.
COMMENT
The definition of abetment does not require that the persons abetted should be a defined and
not be a fluctuating body of men. This section is based on this principle and therefore, one may be
punished for abetment though the prosecution may be unable to name the men abetted. The persons
abetted may be "public generally", or "any number or class of persons exceeding ten".
The posting of a leaflet inciting the public to commit an offence would not be punished under
this section, if it was removed before anybody could have read it. In order to constitute an offence
under this section in this case either the public should have read the leaflets or that they should have
been exposed to public gaze.1 But instigating railway workers to lie on the railway line in the event
of a strike would be an offence.2
118. Concealing design to commit offence punishable with death or imprisonment for
life.—Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate
the commission of an offence punishable with death or imprisonment for life,
3
[voluntarily conceals, by any act or omission or by the use of encryption or any other information hiding
tool, the existence of a design] to commit such offence or makes any representation which he knows to be false
respecting such design,
if offence be committed—if offence be not committed.—shall, if that offence be committed, be punished
with imprisonment of either description for a term which may extend to seven years ; or
if the offence be not committed, with imprisonment of either description, for a term which may extend to
three years, and in either case shall be liable to fine.
Illustration
A, knowing that a dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity is
about to be committed at C, a place in an opposite direction, and thereby misleads the Magistrate with intent to
facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design. A is
punishable under this section.
COMMENT
Sections 118, 119 and 120 deal with concealment of design to commit an offence previous to
the commission of an offence. This section deals with the law of criminal concealment. The essence
of the crime consists in the facility given by concealment to the offenders for the perpetration of
crime. This section recognises two kinds of concealment : (i) concealment by misrepresentation, and
(ii) concealment by non-disclosure. The former affects the public generally and the latter only those
upon whom it lies to make the disclosure. A concealment to be criminal must be intentional or, at
least, with knowledge that it will thereby facilitate the commission of crime. Section 118 relates to
an offence punishable with death or imprisonment for life.
There must be an obligation on the person concealing the offence to disclose. 4 It must be
shown that the act or omission was likely to facilitate the commission of an offence.5
119. Public servant concealing design to commit offence which it is his duty to
prevent.—Whoever, being a public servant, intending to facilitate or knowing it to be likely
that he will thereby facilitate the commission of an offence which it is his duty as such public
servant to prevent,
6
[voluntarily conceals, by any act or omission or by the use of encryption or any other information hiding
tool, the existence of a design] to commit such offence, or makes any representation which he knows to be false
respecting such design,
if offence be committed.—shall, if the offence be committed, be punished with imprisonment of any
1. Emperor v. Parimal Chatterjee, A.I.R. 1932 Cal. 760.

2. S. Subramania Ayyar v. Emperor, A.I.R. 1933 Mad. 279.
4. Bahadur, (1882) P.R. No. 34 of 1882.
5. Kesree, (1866) 1 Agra 37.
description provided for the offence, for a term which may extend to one-half of the longest term of such
imprisonment, or with such fine as if provided for that offence, or with both ;
if offence be punishable with death, etc.—or, if the offence be punishable with death or
imprisonment for life, with imprisonment of either description for a term which may extend to ten years ;
if offence be not committed.—or, if the offence be not committed shall be punished with
imprisonment of any description provided for the offence, for a term which may extend to one-fourth part
of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.
Illustration
A, an officer of police, being legally bound to give information of all designs to commit robbery
which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such
information, with intent to facilitate the commission of that offence. Here A has by an illegal omission
concealed the existence of B's design, and is liable to punishment according to the provision.
COMMENT
Section 118 deals with those cases where the offence of concealment is committed by men of
public or those who are non-public servants. Section 119 deals with offences similar to that of
section 118 committed by public servants, that is the same principle as contained in section 118 is
extended to public servants with severe penalty.
120. Concealing design to commit offence punishable with imprisonment.—Whoever, intending to
facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable
with imprisonment,
voluntarily conceals, by any act or illegal omissions, the existence of a design to commit such
offence, or makes any representation which he knows to be false respecting such design,
if offence be committed—if offence be not committed.—shall, if the offence be committed, be
punished with imprisonment of the description provided 'for the offence, for a term which may extend to
one-fourth, and
if the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with
such fine as is provided for the offence, or with both.
COMMENT
Sections 120 and 118 are basically based on the same principle. The main point of distinction
between the two is that section 118 deals with offences punishable with death or imprisonment for
life; while section 120 deals with offences punishable with imprisonment. Offences punishable with
fine only are not included in these sections.
CHAPTER V-A CRIMINAL
CONSPIRACY
120-A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be
done,—
(1) an illegal act, or
(1) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such agreement in
pursuance thereof.
Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is
merely incidental to that object.
COMMENT
A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to
do an unlawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When
two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties promise against
promise actus contra actum capable of being enforced if lawful, punishable if for a criminal means. The number
and the compact give weight and cause danger. 1 The agreement was an act in advancement of the intention
which each person has conceived in his mind.2 To establish the charge of conspiracy there must be agreement,
there need not be proof of direct meeting or combination nor need the parties be brought into each other's
presence; the agreement may be inferred from circumstances raising a presumption of a common plan to carry
out the unlawful design.3 combination is the gist of the offence, there is nothing in the words conspiracy it is the
agreement which is the gist of the offence. 4 Mere passive cognizance of a conspiracy is not sufficients there
must be active cooperation; in other words, joint evil intent is necessary to constitute the offence. In Pulin
Behary Das v. Emp.,5 certain members of a society found to be revolutionary were not acquainted with the real
object of the society, not having been admitted to its secrets. In this case since there was no agreement of two
minds and no mental participation in each others design, therefore, they were not convicted of the charge of
conspiracy.
To constitute a conspiracy an agreement between two or more persons is necessary. An agreement
implies the meeting of two minds with reference to a particular matter, and so long as matters are discussed and
views are interchanged, but the plan of action has not been settled by the concurrence of any two or more of the
conspirators, the stage of criminal conspiracy would not be considered to have been reached.
It was held in Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra,1' that to constitute an offence
of conspiracy meeting of mind of two or more persons is a sine qua non. But it may not be possible to prove
agreement between them by direct proof. The objective of conspiracy can be inferred from surrounding
circumstances and conduct of accused. It is a substantive offence. It renders mere agreement to commit offence
punishable even if it does not take place pursuant to illegal agreement as it is a substantive offence.
In Ajay Aggarwal v. Union of India,1 the appellant a non-resident Indian was running a
concern in the name of M/s. Sales International at Dubai and four others residing in India were
1. Per Willis, J., in Mulchay v. Reg., (1868) 3 L.R.H.L.R. 306.
2. Per Lord Chelmsford in Mulchay v. Reg., (1868) 3 L.R.H.L.R. 306.
3. Barindra Kumat Ghose v. Emperor, 14 C.W.N. 1114.
4. Pullin Behary Das v. Emp., 16 C.W.N. 1105.
5. 16 C.W.N. 1105.
6. (2008) 4 Cri. L.J. 3872 (S.C.).
running their concerns at Chandigarh. All the five hatched a conspiracy at Chandigarh to cheat
Punjab National Bank and in pursuance thereof they succeeded in cheating the bank of an amount of
Rs. 40,30,329. it was found that foreign letters of credit were fabricated on the basis of false and
forged shipping documents submitted by the appellant to a Dubai bank. Accordingly all of them
were charge-sheeted under Sections 120-B, 420, 468 and 471 IP. Code. In this ease appellants
contention was that prior sanction of the Central Government was necessary for taking cognizance
of the offence as he was a non-resident Indian. It was held that the essential ingredient of the
offence of conspiracy is agreement between two or more persons and not the residence of such
persons within India. Even if part of the acts in pursuance of the conspiracy is done in India,
cognizance of the offence can be taken in India. Conspiracy itself is a substantive offence different
from the offence to commit which the conspiracy was entered into. It is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity. It was further held that each conspirator
need not know all details of the scheme.
In State of Tamil Nadu v. Nalini,2 commonly knows as Rajiv Gandhi assassination case, it
was held that the association of the accused with the main accused or even his knowledge about
conspiracy would not make the accused a conspirator because agreement is a sine qua non of
offence of conspiracy.
It was further made clear that it is not necessary for a conspirator to be present at the scene of
the crime.
It was also held that the shelter (harbour) provided to the main accused involved in Rajiv
Gandhi murder knowing that the accused were involved in the commission of the offence would not
be sufficient to infer that the accused, who provided shelter, was a member of conspiracy.
Justification for law.—A number of justifications in support of the law of conspiracy are
advanced. The general justification of conspiracy as an inchoate crime is the same as that of other
inchoate crimes. It enables preventive action to be taken against intended offenders in circumstances
where it is clear that a fixed intention to commit the crime has been formed. Often the acts from
which conspiracy is inferred will evidence an attempt to commit the crime, but the •advantage of
showing a conspiracy is that it dispenses with the difficult requirement of proximity in attempt.
Secondly, conspiracy has been defended on the ground that the combination of two or more
persons to commit an illegal act gives a momentum to the act which justifies its punishment at the
earliest possible stage.
It is difficult to understand why a conspiracy to commit a civil wrong should be indictable at
all because civil wrong, if actually committed, would not be indictable. Two reasons are advanced
in reply to this :
(i) a combination may make oppressive or dangerous that which if
it proceeded from a single person would be otherwise; and
(ii) the very fact of combination may show that the object is simply
to do harm to the exercise of ones just right.
The first reason is sometimes true but not always. One man can often do as much harm as two
or three and there are many injurious objects which combined numbers have no more power to
accomplish than single individual.
1. 1993 Cri. L.J. 2516 (S.C.).
2. 1999 Cri. L.J. 3124 (S.C.).
Thus, there is not necessarily any anti-social significance in the fact of numbers. Either the act is
judged sufficiently harmful to make it a crime or it is not; if not, why should an agreement to do it
should be criminal.
Of the second reason it would be enough to say that conspiracy may be evidence of malice,
but is not the only and may not be sufficient evidence of it, moreover not all malicious conduct is
criminal.
It has also been suggested that the secrecy with which conspirators generally act is another
ground for departing from ordinary principles in dealing with the few that are caught. But whatever
may be the value of explanation or attempt at explanation, one finds it difficult to be convinced that
there is any justification for treating as an offence, the agreement to commit an act, that is merely
illegal and not an offence when done by a single individual.1
Thirdly, the present law is sometimes supported on the ground that circumstances are
infinitely various and that it is not possible to embrace in predetermined laws all that are socially
injurious. Some writers have viewed the law of criminal conspiracy as an outgrowth of the larger
law or criminal attempt. The two have many features in common and are based very largely on the
same general principle. Nevertheless, the two are not the same. One may become guilty of
conspiracy long before his act has come so dangerously near to completion as to make him
criminally liable for the attempted crime.
The idea that a combination may be criminal although its object would not be strictly
criminal apart from the combination first began to take articulate form towards the close of 17th
century in the arguments. The idea was squarely repudiated in Daniel's case.2 The idea gained
ground and became firmly established alter Hawkins case.
Analytical examination of the doctrine raises new difficulties. If the object sought by a
combination is in no way criminal and if the means utilised are in no way criminal, just where lies
any criminality. The mere act of combining can surely not be criminal when no criminal end is
sought and no criminal means are used. In criminal law separate acts, each alone particularly lawful,
may when combined together constitute such an anti-social effect that the actors' conduct as a whole
becomes criminal.
The logic fails to explain the difficulty that criminality consists in anti-social effects rather
than the number of persons who commit the acts. No criminality can be attached where identical
effect is produced by one or two hundred. Is such a thing logically defensible?
Then, is it justified functionally and by the degree of protection which it affords to social and
to individual interests or rights? If it does, it is justified for air law which exists primarily to achieve
justice and thus to promote peace and equilibrium must not be bound down arbitrarily by logical or
on purely analytical consideration any more than by the iron grip of historical precedents and
correctly traced legal generalogies.
The argument is generally based on danger of combination to community. But serious
objection may be put. It is a fallacy to think that huge and powerful corporation which form in the
eyes of law a single person may not be dangerous. C.J. Parker said : 'mere number do not affect the
quality of the act'.
Prof. Syre has rightly said that, it is high time to abandon the prevalent
1. Huda, S.; The Principles or the Law of Crimes, p. 111.
2. (1704) 6 Mad. 99 : 87 E.R. 856.
[ S. 120-A
INDIAN PENAL CODE
and oft repeated idea that mere combination itself can add criminality or illegality to acts otherwise
free from them. Such a doctrine grew out of mistake and has no real basis in law. It is logically
unsound and indefensible. Moreover, it is dangerous, it is utterly unknown to Roman law, it is not
found in modern continental codes; few continental lawyers ever heaid of it.
Rules of Evidence.—The peculiarity in the treatment of criminal conspiracies and the
departure from some of the ordinary principles of criminal law, according to S. Huda, have led to
various other peculiarities relating to rules of evidence. One of such peculiar features is that
anything said or done by any one of the conspirators, having reference to their common intention, is
under certain circumstances evidence against the others. The reason of the law is that, within the
scope of the conspiracy, the position of the conspirators is analogous to that of partners, one being
considered the agent of the other.'
Russel states the law on the subject thus : "When several persons are proved to have
combined together for the same illegal purpose, any act done by one of the party in pursuance of
the original concerted plan, and with reference to their common object, is in the contemplation of
law the act of the whole party and therefore, the proof of such act would be evidence against any of
the others who were engaged in the same conspiracy; and declarations made by one of the party at
the time of doing such illegal act seem not only to be evidence against himself as tending to
determine the quality of the act, but against the rest of the party who are as much responsible as if
they have themselves done the act."
But before one can give in evidence the acts of the conspirator against another, the existence
of conspiracy must be proved. The prosecutor may, however, either prove the conspiracy which
renders the acts of the conspirators admissible in evidence or he may prove the acts of the different
parties and so prove the conspiracy.2
Although on a charge of conspiracy statements made by any conspirator for the .purpose of
carrying the conspiracy into effect are admissible in evidence against the others, statements by one
not made in pursuance of the conspiracy are not so admissible nor are statements made after the
conspiracy had been abandoned or its object attained.
Ingredients.—The following are ingredients of the offence of conspiracy :—
(1) There should be an agreement between two or more persons who are alleged to
conspire.
(2) The agreement should be to do or cause to be done—
(i) an illegal act, or
(ii) an act which is though not illegal by illegal means.
In view of the proviso to the section it appears that a distinction is drawn between an
agreement to commit an offence, and an agreement of which either the object or the means
employed are illegal but does not constitute an offence. In case of an agreement to commit an
offence no overt act apart from mere agreement is necessary. But in case of an agreement to do an
act which would not amount to an offence, some overt act besides the agreement must be done by
one or more parties to such an agreement. It is also necessary that the act so done must be one in
pursuance of the said agreement Thus a mere agreement between two or more persons to do an
illegal act, or an act which is not illegal by illegal means, is of itself an offence of criminal
conspiracy.
1. Huda'S.; The Principles of the Law of Crimes, p. 113.
2. Archbold, p. 307.
It was held in K. Hasim v. State of Tamil Nadu,1 that the essence of a criminal conspiracy is
the unlawful combination and ordinarily the offence is complete when the combination is framed.
From this it necessarily follows that unless the statute so requires, no overt act need be done in
furtherance of the conspiracy and that the object of the combination need not be accomplished, in
[ S. 120-A
INDIAN PENAL CODE
order to constitute an indictable offence. Encouragement and support which co-conspirators give to
one another rendering enterprises possible which, if left to individual effort, would have been
impossible, furnish the ground for visiting conspirators and abettors with condign punishment.
Offence of conspiracy consists not merely in the intention of two or more, but in the agreement of
two or more to do an unlawful act by unlawful means. So long as such a design rests in intention
only, it is not indictable. When two agreed to carry it into effect, the very plot is an act in itself, and
an act of each of the parties, promise against promise, actus contra capable of being enforced, if
lawful, punishable if for a criminal object or for use of criminal means.
Two or more must agree.—It was held in State of H.P. v. Krishna Lai,2 that the offence of
criminal conspiracy consists in a meeting of mind of two or more persons for agreeing to do or
causing to be done an illegal act or an act by illegal means, and the performance of an act in terms
thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of
them will be liable for the offences even if some of them had not actively participated in the
commission of the offences. The essence of the offence of conspiracy lies in the agreement to break
the law. If they agree to do an illegal act, they shall be guilty of criminal conspiracy, though the
illegal act agreed to be done has not been done. 3 So long as the design remains in mind or
constitutes intention only it is not indictable. But when two or more agree to carry into effect their
design, the very plot is an act in itself, and the act of each of the parlies, promise against promise,
actus contra actum, becomes punishable if for a criminal object or for the use of criminal means. 4
The gist of the offence of conspiracy lies not in doing the act or effecting the purpose for which the
conspiracy is formed, nor in attempting to do any of the acts, nor in inducing others to do them but
in the forming of the scheme or agreement between parties.5
P, Q and R decide among themselves to persuade B to steal jewellery from the house of M.
They accordingly do so. 'B' readily agrees and sets out towards M's House in order to steal
jewellery. In this case P, Q and R will be liable for abetment to commit theft. Since B has agreed to
the persuasion of P, Q and R to steal jewellery therefore B will be liable for the offence of
conspiracy to commit theft under section 120-A of the Indian Penal Code.
Conviction of one only.—Another requirement under the section is that two or more persons
must be parties to the agreement and one person alone cannot be held guilty of the offence of
criminal conspiracy for the simple reason that one cannot conspire with oneself. 6 When only two
are charged under section
1. 2005 Cri. L.J. 143 (S.C.).

2. 19S7 Cri. L.J. 709 (S.C.).
3. Major E.G. Barsay, A.I.R. 1961 S.C. 1762.
4. Gulab Singh, A.I.R. 1916 All. 141.
5. Sriramidu Naidu, (1963) 2 Cri. L.J. 546.
6. Topandas v. State of Bombay, (1955) 2 S.C.R. 881 : A.I.R. 1956 S.C. 33.
S. 120-A ] 221
CRIMINAL CONSPIRACY
120-B and one is acquitted, the other alone cannot be punished.1 Where two or more are charged and
all others except one are acquitted, one alone cannot be convicted of the offence of conspiracy. 2
However, in Bimbdhar Pradhan v. State of Orissa? Supreme Court distinguished Topan Das case
and held that "it is not essential that more than one person should be convicted of the offence of
conspiracy. It is enough if the court is in a position to find that two or more persons were actually
concerned in the criminal conspiracy. If it is proved that two or more were engaged in a conspiracy,
although they could not be caught, one alone may be convicted.4
It is not necessary that all the parties should agree to do a single illegal act. It may comprise
the commission of a number of acts. In Major E.G. Barsay; it was held that if the accused are
charged with having conspired to do three different categories of illegal acts, the mere fact that all of
them could not be convicted separately in respect of each of the offences has no relevancy in
considering the question whether the offence of conspiracy has been committed. They can all be
held guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them
may not be liable. It is not necessary that each member of the conspiracy must know all the details
of the conspiracy.6
Illegal act.—To constitute the offence of criminal conspiracy an agreement must be to do an
act which is contrary to or forbidden by law. An agreement, which is immoral or against public
policy, or in. restraint of trade or otherwise of such a character that the courts will not enforce it, is
not necessarily illegal.7 But since an act may be illegal without being criminal it can be said that an
agreement to do an illegal act may amount to criminal conspiracy though it may not be punishable
as such.8 It may be an offence to conspire with another to do an act which, if done alone, would not
be criminal e.g. procuring a woman to become a prostitute, 9 or to have illicit connection, with a
man.10
If a railway worker in violation of any existing rule but in response to an order of the
Commercial Superintendent who is a competent authority delivers coal, and there is no evidence to
the effect that the businessman has conspired with the employee at the time of delivery or the
railway employee has obtained illegal gratification, neither the railway employee who has delivered
the good nor the businessman to whom delivery was made can be punished either under section
120-B or section 420. There is no conspiracy between the two as desired under this section.11
Illegal means.—Agreement to do an act which even though lawful by unlawful means constitutes conspiracy. The end does not justify the means. For instance, it
is not illegal to undersell a rival trader, but it would be illegal for the latter to combine to- ruin the seller of cheap goods by inducing to give credit to a bankrupt purchaser and
thereby cause him loss.'
Overt act.—Where the agreement is to do an act which would not be an offence, some overt
1. Kasim Ali, A.I.R. 1927 Cal. 949.
2. Topan Das v. State of Bombay, A.I.R. 1956 S.C. 33.
3. A.I.R. 1956 S.C. 649.
4. R.V. Thompson, (1851) 16 Q.B. 832.
5. A.I.R. 1961 S.C. 1762.
6. R.K. Dalmki, (1962) 2 Cri. L.J. 805.
7. O' Coimel, II CI. & Fin. 155.
8. Whitchurch, 24 Q.B.D. 420.
9. Howell, 4 F. & F. 160.
10. Delaval, 3 Bur. 1424.
11. Om Prakash Todi v. Sme of Bihar, 1984 Cri. L.J. (N.O.C.) 197 (Pat.).
act in pursuance of the agreement needs to be done in order to constitute criminal conspiracy. The
overt act must be something distinct from that tending to prove merely the agreement. 2 It is not
necessary that every conspirator must be present at every stage of the conspiracy, or that he must
have done some overt act. It may so happen that one may not have done any overt act, but if it is
established that he was a party to the conspiracy that is to say, he had agreed to the common design
and had not resiled from that agreement, it can be presumed that he continued to be a party of the
conspiracy and he is liable for the acts of the other conspirators as well.3
In Rajaram Gupta v. Dharamchand,4 it was held that the overt act constituting a conspiracy
are acts either (i) signifying agreement, or (ii) preparatory to the offence, and (iii) acts constituting
the offence itself. The gist of the conspiracy, therefore, lies in forming the scheme or agreement
between the parties. The external or overt act of the crime is concert by which mutual consent to a
common purpose is exchanged.
Proof of Conspiracy.—An agreement which is alleged to be a criminal conspiracy need not
and cannot often be proved by direct evidence. Very often participation in overt acts in pursuance of
the alleged agreement provides good ground for the inference of participation in the agreement
itself.
[ S. 120-A
222
INDIAN PENAL CODE
The Supreme Court in Hiralal Har'dal Bhagwati v. C.B.I., New Delhi,5 held that to bring
home the charge of conspiracy within ambit of section 120-B of the Indian Penal Code, it is
necessary to establish that there was an agreement between the parties for doing an unlawful act.
However, it is difficult to establish conspiracy by direct evidence.
In Ashok Datta Naik & others v. State,1' it was said that the charge of criminal conspiracy
being an independent offence has to be proved like any other offence. To establish a charge of
criminal conspiracy the prosecution must prove the agreement. The agreement is not always capable
of proof by direct evidence because it is entered into secretly. In fact in cases of conspiracy one
seldom comes across direct evidence. It is generally a matter of inference deducible from certain
criminal acts of the involved parties. It has then to be seen whether in the light of the above there
exists specific proof against the accused person that they individually participated in the design
sought to be established against them. Thus criminal conspiracy may be proved either by direct
evidence or by circumstantial evidence.
In Param Hans Yadav v. State of Bihar,1 the Supreme Court observed that it is difficult to
support the charge of conspiracy with direct evidence in every case but if the prosecution relies
upon circumstantial evidence, a clear link has to be established and the chain has to be completed,
otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the
basis of such incomplete evidence, the allegation of conspiracy cannot be accepted.
1. Esdaile, 1 F & F 213.

2. Culab Singh, 35 I.C. 991 (All.).
3. Ashok Datta Naik & others v. State, 1979 Cri. L.J. (N.O.C.) 95.
4. 1983 Cri. L.J. (M.P.) 612.
5. 2003 Cri. L.J. 3041 (S.C).
6. 1979 Cri. L.J. (N.O.C.) 95.
7. 1987 Cri. L.J. 789 (S.C).
In Jethsur Surangbhai v. State of Gujarat,,' it was alleged that the chairman of a cooperative
society had conspired to embezzle the account of the society. But due to lack of evidence of
conspiracy he was acquitted by the Supreme Court and it was held that he cannot be convicted under
Sections 408, 409, 467 and 471 on the ground of vicarious liability. It further observed that in
serious offences like conspiracy, the element of mens rea cannot be overlooked. If the offence is not
proved, the prosecution will be required to prove whether the accused was engaged in those acts or
omissions personally of which he is charged. In the absence of these facts he cannot be convicted
merely on the ground that he was the head of the institution. Therefore, he was vicariously
responsible for those activities.
Section 10 of the Evidence Act introduces the doctrine of agency. If the conditions laid down
in that section are satisfied the act done by one is admissible against the co-conspirators.
In Ammini v. State of Kerala,1 Tomy and his brother Francis were doing some business in
different firm's names. After death of Francis his wife Ammini was inducted as partner in two firms
and not in third one. Moreover Ammini was annoyed with the behaviour of Tomy for other reasons
as well. Amrnini was at times required to borrow money from others and that is how she came in
contact with Kartikeyan A-2 with whom she gradually developed illicit relations. Once she fell ill
and A-2 was often seen with her in the hospital. Once when Tomy saw A-2 he told Ammini (A-l)
that what she was doing was not proper. Thereafter Ammini thought Tomy and his wife as an
obstacle in her affair with A-2. Therefore both of them decided to ruin Tomy and his family. They
made many attempts by using different methods to finish the family but succeeded only when her
maid servant A-3 and Thomas A-4 who also came in contact with A-l joined the conspiracy. A-4
procured some cyanide from one Chinappan PW-27. As preplanned A-l first went to Tomy's house
at about 7 p.m. and started talking. Thereafter A-3 and A-4 also went there on the pretext to see A-l.
They asked Merli wife of Tomy to get some water to drink. While she was bringing water A-3 and
A-4 caught her from behind and forcibly put cyanide in her mouth. She tried to resist by giving a
bite on the hand of A-3 but she was not successful. Merli died immediately then A-l with the help of
A-3 forcibly gave cyanide to Merli's two children who also died. Ammini then left the house after
removing a gold chain of Merli from a cupboard. It was held that there was evidence regarding
movement of accused persons at relevant time near house of deceased, the find of finger prints of
one of the accused on one of the glasses seized from house of deceased and the confession of one of
the accused, these circumstances along with other evidence proved the guilt of the accused. There
was also sufficient evidence to show that four accused persons entered into criminal conspiracy to
murder deceased persons. In view of the above the court did not interfere in the conviction of the
accused persons under section 300, Indian Penal Code.3
S. 120-A ] 223
CRIMINAL CONSPIRACY
In State N.C.T. of Delhi v. Navjot Sandhu,4 the Supreme Court held that those, who committed the offences pursuant to the conspiracy by indulging in various
overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but the non- participants conspirators cannot be found guilty of the
1. 1984 Cri. L.J. 162 (S.C).

2. 1998 Cri. L.J. 481 (S.C).
3. Ammini v. State of Kerala, 1998 Cri. L.J. 481 (S.C).
4. 2005 Cri. L.J. 3950.
offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a
substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable if he comes within the plain
tenns of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
A distinction was maintained between the conspiracy and the offences committed pursuant to
the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the
conspiracy, a rule of evidence is enacted in Section 10 of the Evidence Act based on the principle of
agency. Section 10 of the Evidence Act provides that anything said, done or written by one of the
conspirators in reference to the common intention of all of them can be proved as a relevant fact as
against each of the conspirators, subject to the condition prescribed in the opening part of the
section. Thus the evidence which is in the nature of hearsay is made admissible on the principle that
there is mutual agency amongst the conspirators. Whether or not the conspirators will be liable for
substantive offences other than the conspiracy and, if so, to what extent and what punishment has to
be given for the conspiracy and the othei offences committed pursuant thereto, depends on the
specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the
principle of agency, if the statute does not say so. For instance, in the case of Section 34 I.P.C. the
constructive liability for the crime is specifically fastened on each of those who participate in the
crime in furtherance of the common intention. But Section 120-B does not convey that idea.
Husband and wife.—In English law if a man and his wife are the only parties to a
conspiracy they cannot be indicted for conspiracy because legally they are deemed to be one person,
but such an indictment will not be barred in India.
Distinction between Section 120-B and Section 107.—Conspiracy is a substantive offence
under section 120-B. It has nothing to do with abetment. Section 120-A provides an extended
definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy
within the meaning of section 107. Where a criminal conspiracy amounts to an abetment under
section 107 it is unnecessary to invoke the provisions of section 120-A or section 120-B because the
Code has made specific provision for the punishment of such a conspiracy. 1 In case of conspiracy
under section 107 a mere combination of persons or agreement between ahem is not enough. An act
or illegal omission must take place in pursuance of\the conspiracy and in order to the doing of the
thing conspired for in case of section 120-A the mere agreement is enough, if it is to commit an
offence.2 So far as abetment by conspiracy is concerned the abettor will be liable to punishment
under varying circumstances detailed in sections 108 to 117. The offence to criminal conspiracy
under section 120-A is punishable under section 120-B.3
120-B. Punishment of criminal conspiracy.—(1) Whoever is a party to criminal conspiracy to commit

an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or
upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be
1. Jageshwur Singh, (1935) 15 Pat. 26.

2. Mulchay v. Queen, (1868) 2 L.R.H.L. 306.
3. Ibid.
punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six
months, or with fine or with both.
COMMENT
The punishment for a criminal conspiracy is more severe if the agreement is one to commit a
serious offence; it is less severe if the agreement is to commit an act which although illegal is not an
offence punishable with death, imprisonment for life or rigorous imprisonment for more than two
years. In the former case the punishment for conspiracy is the same as if the conspirator had abetted
the offence.'
Under section 120-A a conspiracy to commit an offence is itself a substantive offence and a
person can be separately charged with respect to it, i.e. he should be charged for the conspiracy as
well as for the offence committed, The offences created by section 109 and section 120-A are quite
distinct and where offences are committed by several persons in pursuance of a conspiracy it is
unusual to charge them with those offences as well as conspiracy to commit those offences.2
[ S. 120-A
224
INDIAN PENAL CODE
Para (1) of section 120 B. relating to serious offences, applies only where no express
provision is made in the Code for the punishment of a conspiracy to commit an offence.
In Abdul Kadar v. State,1 it was held that if the petitioners were parties to the conspiracy
during its continuance when all of them were in Bombay they clearly committed the offence within
Indian territories, and that being so, it is impossible to hold that the court in India would have no
jurisdiction to try the offence.
Thus it is clear that this section applied to those who are members of the conspiracy during its
continuance. Conspiracy is a continuing offence and whoever is a party to the conspiracy during the
period for which he is charged is liable under this section.
In Lai Chand v. State of Haryana4 one Bhimal obtained thumb impression fraudulently from
an illiterate lady on a document. Through the document he got her entire property entered in his own
name and showed that she sold her property to him. When the lady came to know of this she lodged
a complaint in the Court but did not take any step to protect her interest. The Supreme Court held
that since fraud could not be proved against the accused, therefore, the allegation of gift deed could
not be presumed to be proved beyond reasonable doubt.
Where there is not an iota of evidence to establish that the three accused prior to the
commission of the offence had conspired together with the fourth accused and got forged from him
the ruqqa to secure an entry into the house of the deceased and there is nothing to show that the
fourth accused had been associating with the other accused, the fourth accused is entitled to be
acquitted.'
1. Alim Jan Bibi, (1937) 1 Cal. 484.
2. Subbaiah, A.I.R. 1961 S.C. 1241; Mohd. Hussain v. K.S. Dalilp Singhji, (1970) 1 S.C.R. 130.
3. (1963) 65 Bom. L.R. 864.
4. 1984 Cii. L.J. 164 (S.C).
In State (Delhi Administration) v. Dilbagh Rai and others,2 it was alleged that the accused
had conspired with a view to cheat the officer of C.C.I.E. Delhi and to dishonestly obtain import
licence from M.E.M. on the basis of forged recommendation certificate and forged copy of
acceptance tender by making false representation. In absence of relevant evidence was held that the
accused was not guilty of conspiracy, forgery or cheating. A meeting of mind of the participants
must be proved.
In Raghubir Singh v. State of Bihar3 it was held that where charges of conspiracy and sedition
were framed on the basis of letters recovered in the search of the accused, it could not be said that
the charges were not justified as the accused were not the authors of the letters. Authorship of
seditious material alone is not the gist of any of the offences. Distribution and circulation of such
material may also be sufficient on the facts and circumstances of a case. To act as a courier is
sometimes enough in a case of conspiracy. It is also not necessary that a person should be a
participant in a conspiracy from start to finish. Conspirators may appear and disappear from stage to
stage in the course of a conspiracy.
In M.S. Rau v. G.G. Kamble? the accused company evaded excise duty fraudulently and
dishonestly and the Directors who were responsible for the day-to-day working of the company
conspired together and aided and abetted the commission of the offence of evasion of excise duty by
accused company. The secretary and three Directors retired in 1983 and it was pleaded on their
behalf that they could not be prosecuted for offences committed in 1985 when there was a raid.
Their modus operandi to defraud was to declare the price structure lower than the economic cost
price. During the period the accused Directors were in service additional charges in the form of
handling charges, freight, insurance, surcharge, repair charges were collected and thus the difference
in price was wiped out. Others including those Directors who had retired were charged for
conspiring to evade excise duty. It was held that if the excise duty is evaded by the company, not
only the company but also the persons who committed or conspired to commit such offence would
be liable. Retired Directors will be liable even after retirement if they were involved in conspiracy
which continued even after retirement as in this case. Therefore the company and the Directors were
liable for conspiring in evasion of excise duty.
Now taking an example, if 'P' 'Q' and 'R' decide amongst themselves to persuade 'B' to steal
jewellery from the house of 'M' and they accordingly do so. 'B' readily agrees and sets out towards
M's house in order to steal jewellery. P. Q. and R are liable for conspiracy under section 120-B to
commit the offence of theft. B is not liable for any offence because his act only amounts to
preparation
In Vijayan v. State of Kerala,5 the case of the prosecution is that the two appellants entered
into a criminal conspiracy to cause death of Majeendran who was residing in the city of Cochin.
1. State of U.P. v. Sukhbasi ami others, 1985 Cri. L.J. 1479 (S.C).
2. 1986 Cri. L.J. 138 (S.C).
3. 1987 Cri. L.J. 157 (S.C).
4. 1989 Cri. L.J. 175 (Bom.).
5. 1999 Cri. L.J. 1638 (S.C).
S. 120-A ] 225
CRIMINAL CONSPIRACY
Pursuant to this conspiracy and being instigated by accused Sadansmdan, Vijayan went to the house
of Majeendran at
226 INDIAN fENAL CODE S. 120-B
6 a.m. and fired two shots at him from a revolver. One of the shot hit the chest of Majeendran and
immediately after firing Vijayan left the place. Majeendran was taken to hospital by his neighbours
but he succumbed to his injuries. Sadanandan was a rising contractor and was getting financial help
from his uncle. Deceased Majeendran was also receiving help from Sadanandan's uncle. Sadanandan
thought that his uncle would no longer give the same financial help to him so he conspired with
Vijayan and gave him a revolver and instigated him to punish Majeendran which he did. Though
prosecution examined 70 witnesses and exhibited 110 documents to prove the charge but there was
no eye-witness to the occurrence. The prosecution relied on circumstantial evidence. The session
Judge came to the conclusion that the circumstances those established do not complete the chain so
as to justify conviction and so acquitted both the appellants. The High Court, however, reappreciated
the evidence and recorded conviction of the two appellants. It was held that to bring home the
charge of conspiracy under section 120-B of the I.P.C. it is necessary to establish that there was an
agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to
establish conspiracy by direct evidence and therefore, from established facts inference could be
drawn but there must be some material from which it would be reasonable to establish a connection
between the alleged conspiracy and act done pursuant to the said conspiracy. In the present case
materials produced do not lead to an inference of conspiracy between the two accused persons to do
away with the deceased Majeendran.
In C.B.I, v. V.C. Shukla,' the prosecution could not prove that one of the two accused was
party to conspiracy and therefore it was held that the charge of conspiracy cannot stand against other
accused as in a conspiracy there must be two parties or two persons.
It was held in Devendra Pal Singh v. State of N.C.T. of Delhi,2 that in a case of criminal
conspiracy, acquittal of co-accused on ground of non-corroboration of confessional statement of
accused, the prosecution case regarding criminal conspiracy does not get demolished. The plea that
acquittal of co-accused has rendered prosecution version brittle, has no substance. Acquittal of co-
accused was on the ground of non-corroboration of confessional statement. That principle has no
application to accused himself. The Legislature has set different standards of admissibility of a
confessional statement made by the accused under the TADA from those made in other criminal
proceedings. A confession statement recorded by a Police Officer not below the rank of
Superintendent of Police under section 15 of the TADA is admissible, while it is not so admissible
unless made to the Magistrate under section 25 of the Indian Evidence Act, 1872. Under the
Evidence Act a confessional statement of an accused to a Police Officer except to the extent
permitted under section 27 of the Evidence Act is not permissible. The only common feature
between TADA and Evidence Act is that the confession has to be voluntary.
In K.R. Purushothaman v. State of Kerala? a Bhagwathy temple at Chottanikhera is
administered by Cochin Devaswom Board. One ornament "Golaka" was used on certain special
occasions and the other "Golaka" was used day to day. The latter "Golaka" was found by the Temple
Board unfit for adoring the deity and therefore, a decision was taken by the Board on
13-4-82 to make a new Golaka and for the said purpose sanction was accorded to
1. A.I.R. 1998 S.C 1406.
2. 2002 Cri. L.J. 2034 (S.C).
3. 2005 Cr. L.J. 4648 (S.C).
use 3 Kg. and 499 grams of gold from gold stock available with the Devaswom. It
was subsequently found that the aforesaid quantity of gold was not sufficient and
therefore, Devaswom Board granted permission to utilize 1.5 Kg. gold more from
the offerings in the form of ornaments and gold coins by converting them into
bars and sheets. In pursuance of the order additional quantity of 1 Kg. gold was
entrusted to A-3 who died during the pendency of the proceedings. .The work of
preparing ornaments was entrusted to the 4th accused by the Devaswom Board on
20-7-1987. As per quotation the wastage in making the ornament was 10 grams of
the gold for 1 Kg. By order dated 20-7-1987 the work of making the Golaka was
to be supervised by the Assistant Commissioner of the Tripunithara groups, K.S.
Chakrapani Marar. Much of the work was done before the accused joined as
Assistant Commissioner.
A-2 joined duty as Assistant Commissioner of the Devaswom Board on 1/2-
5-1988. On 10-9-88 the gold bar was taken by accused appellant alongwith A-3
and A-4 to A.K.A. Metals at Irinjalakuda for converting the same into gold sheets.
But when attempt was made to convert the bars into sheets cracks appeared on the
side of the bar due to impurity of the gold. On 15-9-88 the accused appellant
sought permission to take the gold bar to Coimbatore and by resolution dated 20-
9-88 A-3 was authorised to take the gold bar to Coimbatore for converting it into
S. 120-B ] 227
CRIMINAL CONSPIRACY
gold sheets and accordingly gold bar was taken to Coimbatore. When the gold bar
was melted the quantity of pure gold was found to be only 919.500 gm. Therefore
42 gm. of copper was added to it in order to conform the same to the prescribed
Government standard and gold was converted into gold sheets. Out of a total
weight of 4.499 Kg. of gold utilised for making Golaka the weight of ornament
was found to 4.209 Kg. Since 42 gram of copper was used for making Golaka the
total wastage was assessed as 332 gm. A-l the Commissioner after making
inquiries submitted report that 332 gm. of wastage was quite reasonable. In the
audit report it was pointed out that wastage of 332 gm. was unreasonable and the
persons responsible for loss were also named. Charge-sheet was filed against A-l,
the Commissioner, Devaswom Board, A-2 Assistant Commissioner of Board, A-3
officer of Board and A-4 the maker of Golaka. The Trial Court acquitted A-l and
A-4 but convicted A-2 and A-3. The appeal was taken to the High Court by A-2
and the High Court recorded a finding that though there was nothing which
indicated that the appellant was a party to the attempts of melting the gold yet it is
possible that he knew about it. The High Court inferred that when it was found
that it was not possible to convert the gold bars into sheets because of impurity A-
2 had not raised any objection against the same.
The High Court has found A-2 guilty on the basis that he has conspired with
A-3 dishonestly or fraudulently to misappropriate pure gold. The conviction of
appellant is based on conspiracy between appellant and A-3.
It was held by the Supreme Court that co-accused officer of Devaswom who
was entrusted with the gold by Devaswom Board and who was looking after the
affairs of making the ornament "Golaka" used in temple, simply because the
accused appellant had accompanied him to place of making sheet of gold it cannot
be irvferr^d that there was an agreement entered into between them to
ntisapprppriate tpe gold. To constitute conspiracy agreement between two or more
! S. 120-B
INDIAN PENAL CODE
persons for doing an illegal act or an act by illegal means is a sine qua a non. Although the
agreement between the conspirators can be inferred by necessary implication, the inference can only
be drawn on parameters in the manner of proved facts, in the nature of circumstantial evidence.
Whatever be the incriminating circumstance, it must be clearly established by reliable evidence and
they must form the full chain whereby a conclusion about the guilt of the accused can be safely
drawn. Even if at some point of time, the accused appellant had some knowledge or suspicion about
co-accused indulging in fraudulent misappropriation of gold entrusted to co-accused, in the absence
of some positive evidence indicating agreement to that effect, conspiracy could not be inferred. Thus
the accused appellant was not the conspirator to misappropriate the gold with co-accused because
there is no link to show that the conspirators agreed to misappropriate the gold while the gold
ornament was being prepared.
It was further held that the charge of conspiracy being not proved under Section 120-B IPC,
the accused appellant could not be held responsible for the act done by co-accused.1
1. K.R. Purushothaman v. State of Kerala, 2005 Cri. L.J. 4648 (S.C).

CHAPTER VI OF OFFENCES AGAINST THE
STATE
121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India. —
Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging
of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine.
Illustration
A joins an insurrection against the Government of India. A has committed the offence defined in
this section.
COMMENT
All States have the same right of self-preservation as their subjects, and State like men have
from time immemorial, enacted safeguards for their own preservation. and protection. At common
law the crime of treason was created with that end in view. The fundamental characteristic of high
treason consisted in the betrayal of that faith and allegiance which were due from a subject to his
sovereign as the supreme head of a State. To constitute this offence no specified number of persons
is necessary. So also the manner in which the persons are assembled or armed is also not material to
constitute this offence. The true test is the purpose or intention with which the men have assembled.
The object of the gathering must be to attain, by force and violence, an object of a general public
nature thereby striking directly against the Government's authority.1
Ingredients.—The followings are ingredients of this section—(1) the accused waged or
attempted to wage war or abetted the waging of war; and (2) that such war was against the
Government of India.
Waging War.—Any person taking part in organised armed attack on the constitutional
authorities and the object of attack being subversion of Government and the establishment of
another in its place would be guilty of the offence of waging war. 2 This offence may be committed
by citizens or foreigners. Every citizen is free to have his own political theory and also to propagate
and work for its establishment so long as he does not seek to do so by force or violence. To try to
work out a change by peaceful means in the political system or the kind of a Government does not
amount to waging war.3 But if the accused with the object of overthrowing the Government recruits
people and punishes those who refuse to join, he would be guilty of waging war.
In Maganlal Radhakrishan v. Emperor* the following characteristics of this offence were
pointed out :—
(1) No specific number of persons is necessary to constitute this offence;
(2) The number of persons concerned and the manner in which they are equipped is
immaterial;
(3) The true criterion is "Quo Animo", did the gathering assemble?
(1) The object of the gathering must be to attain by force and violence an object of
1. Maganlal, A.I.R. 1946 Nag. 126.
2. In re Umayyathantagatu Puthen Veetilkundi Khader v. Emperor, 23 Cr. L.J. 203.
3. R. Vasu Nair v. T.C. State, A.I.R. 1955 T.C. 33.
4. Ail.R. 1946 Nag. 126.
a general public nature thereby striking directly against the King's authority.
(2) There is no distinction between principal and accessory and everyone who takes
part in the unlawful act incurs the same guilt. Waging war means waging war in the manner usual
in war. In order to support a
conviction under this section it would not be enough to show that the persons charged have connived to obtain
possession of an armory and have when called upon to surrender it, used the rifles and ammunition so obtained
against the State troops. It must also be shown that the seizure of the armory was part and parcel of a planned
operation and that their intention in resisting the troops of the State was to overwhelm and defeat the troops and
then to go on and crush any further opposition with which they might meet until either the leaders of the
movement succeed in obtaining possession of the machinery of Government or until those in possession of it
yielded to the demands of their leaders.1 A deliberate and organised attack upon the Crown force could amount
to a waging of war if the object of the insurgents was by armed force and violence to overcome the servants of
the Crown and prevent the general collection of capitation tax.2
Abets the waging of war.—Abetment of waging war is made a special offence. It is not essential that as
a result of the abetment the war should in fact be waged. Although the general law relating to abetment has
made a distinction for purposes of punishment between the abetment which has succeeded and the abetment
which has failed, this section makes no distinction between the two. There is also no distinction between the
principal and accessory, and all who take part in the unlawful act incur the same liability. 3
So long as a man only tries to inflame feeling, to excite a state of mind, he is not guilty of anything more
than sedition. One is guilty of instigating and thereby abetting the waging of war only when he definitely and
clearly incites to action.4 For instance, in Ganesh D. Savarkar?1 the accused published a book of poems wherein
a spirit of blood-thirstiness and murderous eagerness directed against the Government and "white" rulers ran
through the poems; the urgency of taking up the sword was conveyed in unambiguous language, and an appeal
of blood-thirsty incitement was made to the people to take up the sword, form secret societies, and adopt
guerilla warfare for the purpose of rooting out the demon of foreign rule. It was held that the poems conveyed to
the readers an instigation to wage war and the accused was guilty of abetting the waging of war.
In State (N.C.T. of Delhi) v. Navjot Sandhu,6 terrorists entered Parliament House with sophisticated arms
and powerful explosives when Parliamentary business was being conducted therein. The Supreme Court held
that the undoubted objective and determination of deceased terrorists was to impinge on sovereign authority of
nation and its Government. It amounts to waging war or attempting to wage war against Government of India. It
was also held that to constitute offence of waging war under Section 121 I.P.C., the intention and purpose of the
warlike operations directed against the Governmental machinery is an important criterion. If the object and
purpose is to strike at the sovereign authority of the Ruler or the Government to achieve a public and general
purpose in contradistinction to a private and a particular purpose, that is an important indicia of waging war. Of
course the purpose must be intended to be achieved by the use of force and arms and by defiance of
Government troops or armed personnel deployed to maintain public tranquillity. It was also pointed out that
even a limited number of persons who carry powerful explosives and missiles without regard to their own safety
can cause more devastating damage than a large group of persons armed with ordinary weapons or fire arms.
In the instant case the target chosen was the Parliament—a symbol of sovereignty of the Indian Republic
comprised of peoples representatives. The target, the obvious objective which has political and public
1. Mir Hasan Khan v. State, A.I.R. 1951 Pat. 60.
2. Aung Hla v. Emperor, A.I.R. 1931 Rang. 235 at p. 239.
3. Magan Lai, A.I.R. 1946 Nag. 126.
4. Ganesh D. Savarkar, (1909) 12 Bom. L.R. 105.
5. Ibid.
6. 2005 Cri. L.J. 3950 (S.C).
dimensions and the modus operandi adopted by the hard core 'Fidayeens' are all demonstrative of intention of
launching a war against the Government of India. In view of the above the Supreme Court held that the criminal
acts done by the deceased terrorists in order to capture the Parliament House amount to waging or attempting to
wage war. To constitute offence of waging war, military or other forces need not be the direct target of attack.
Thus imposition of punishment of death sentence on accused who abetted waging of war, was held to be proper.
The apex Court further pointed out that the Court must be cautious in adopting an approach which has
the effect of bringing within the fold of Section 121 all acts of lawless and violent acts resulting in destruction
of public properties etc. and all acts of violent resistance to the armed personnel to achieve certain political
objective.
It was further held that foreign nationals entering Indian territory with a view to subverting functions of
Government and de-stabilising society can be held guilty of waging war under Section 121 I.P.C. 1
It was also held in State (N.C.T. Delhi) v. Navjot Sandhu,2 that in terrorist attack on Indian Parliament
accused was a party to conspiracy, who took active part in series of steps taken to pursue objective of
conspiracy. Deceased also could be said to have abetted offence. Therefore, the offence of abetting waging of
war justifies imposition of death sentence on accused.
121-A. Conspiracy to commit offences punishable by section 121.—Whoever within or without
India conspires to commit any of the offences punishable by section 121, or conspires to overawe, by
means of criminal force or the show of criminal force, the Central Government or any State Government,
shall be punished with imprisonment for life, or with imprisonment of either description which may
extend to ten years, and shall also be liable to fine.
Explanation.—To constitute a conspiracy under this section, it is not necessary that any act or
illegal omission shall take place in pursuance thereof.
COMMENT
Ingredients.—This section deals with two kinds of conspiracies :—
(1) Conspiring within or without India to commit any of the offences punishable by section
121.
(2) Conspiring to overawe by means of criminal force, or the show of criminal force the
Central Government or any State Government.
The words 'conspires to overawe, by means of criminal force or the show of criminal force, the Central
Government, or any State Government' in this section clearly embrace not merely a conspiracy to raise a general
insurrection, but also a conspiracy to overawe the Central Government or any State Government by the
organisation of a serious riot or a large and tumultuous unlawful assembly. 3 The word 'overawe' means
something more than the creation of apprehension or alarm or fear. It connotes the creation of a situation in
which the members of the Central or State Government feel themselves compelled to choose between yielding
to force or exposing themselves or members of the public to a very serious danger. It is not necessary that the
danger should be a danger of assassination or of bodily injury to themselves. The danger might well be a danger
of public property or to the safety of members of the general public. 4 Any conspiracy to change the form of
Government, even though it may constitute an offence under some other section of the Code, is not an offence
under this section, unless it is a conspiracy to overawe such Government by means of criminal force, or show of
criminal force.5
The expression "conspiring to overawe government by means of criminal force or the show of criminal force" was interpreted by the Kerala High Court in Arbind v. State.6 The Court
observed that the word "overawe" means something more than the mere creation of apprehension, alarm or fear. It connotes the creation of a situation in which the government
1. 2005 Cri. L.J. 3950 (S.C).

2. 2005 Cri. L.J. 3950 (S.C).
3. Ramanand, (1950) 30 Pat. 152.
4. Ibid.; Mir Hasan Klian v. Emperor, A.I.R. 1951 Pat. 60.
5. Jliabvala, (1933) 55 All. 1040.
6. 1983 Cri. L.J. 1259 (Ker.).
feels itself compelled to choose between yielding to force or exposing itself or members of the public to a very
serious danger. Therefore, the slogan that the government can be changed through the force, does not mean that
a criminal conspiracy has taken place to change the government through force.
12Z Collecting arms, etc. with intention of waging war against the Government of India. —Whoever
collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging
or being prepared to wage war against the Government of India, shall be punished with imprisonment for
life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to
fine.
COMMENT
Ingredients.—The following are ingredients of this section :—
(1) Collecting men, arms or ammunition etc.;
(2) The intention of the above act should be to wage war against the Government of India.
This section aims at putting down with a hea vy hand pny preparation to wage war against the
Government of India. Attempt, as distinguish fe preparation to wage war is not punishable under this section.
123. Concealing with intent to facilitate design to wage war.—Whoever, by any act, or
by any illegal omission, conceals the existence of a design to wage war against the Government
of India, intending by such concealment to facilitate, or knowing it to be likely that such
concealment will facilitate, the waging of such war, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to fine.
COMMENT
Ingredients.—The following are essentials of this section :—
(1) The existence of a design to wage war against the Government of India;
(2) Such a design must be within the knowledge of the accused;
(3) The accused must have concealed that design; and
(4) The concealment must have been intended to racilitate the design to wage war.
This section makes the concealment of design to wage war against the Government of India by, any act
or omission, so that, such concealment may facilitate the waging of such war, an offence.
It was held in State (N.C.T. Delhi) v. Novjot Sandhu' that the accused had knowledge of conspiracy and
plans of terrorists to attack Parliament House. His illegal omission to apprise police or Magistrate of the design
of conspirators which is act of waging war would make him liable for offence under Section 123 I.P.C. The fact
that no charge was framed against him under Section 123 would not prejudice him because charge of waging
war and other allied offences are subject matter of charges.
124. Assaulting President, Governor, etc. with intent to compel or restrain exercise of any
lawful power.—Whoever, with the intention of inducing or compelling the President of India,
or the Governor of any State, to exercise or refrain from exercising in any manner any of the
lawful powers of such President or Governor,
assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of
criminal force or the show of criminal force, or attempts so to overawe, such President or Governor,
shall be punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.
COMMENT
(1) It is an offence committed against the President of India or the Governor of a State. i
(1) The accused must commit one of the following acts;
(i) Assault or attempt to commit assault; or
(ii) Wrongful restraint or Attempt to restrain; or
1.. 2005 Cri. L.J. 3950 (S.C).

(iii) Use of criminal force or show of criminal force by the accused. (3) Doing one of the
above acts with the intention of inducing or compelling
such person to exercise or refrain from exercising any of his lawful powers.
124-A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards the government established by law in India, shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend to three
years, to which fine may be added, or with fine.
Explanation 1.—The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a
view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt
or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the
Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an
offence under this section.
COMMENT
Ingredients.—The following are two essentials of sedition :
(1) Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite
disaffection towards the Government of India.
(2) Such act or attempt may be done (i) by words, either spoken or written, or (ii) signs, or (iii)
by visible representation.
History.—Section 124-A was added to the Code in 1870 and at that time it was not in the present form.
This section was amended in 1891 and explanations were added to it. During 1870 to 1898 the meaning of the
word 'disaffection' was discussed in a number of cases. In Queen v. Jogendra Chandra Bose,1 C.J. Petheram
explained 'disaffection' to mean as a feeling contrary to affection; in other words dislike or hatred. Disprobation
means simply disapproval. If a person uses either spoken or written words calculated to create in the minds of
the person to whom they are addressed a disposition not to obey the lawful authority of the government, or to
subvert or resist the authority, if and when the occasion should arise and if he does so with the intention of
creating such disposition, among his hearers or readers, they will be guilty under the section. In Queen v.
Balgangadhar Tilak,2 Strachey, J., agreed with the above ruling, holding that a man must not make or try to
make others feel enmity of any kind towards the Government. Amount and intensity of disaffection is absolutely
immaterial except perhaps in dealing with the question of punishment.
These decisions were quoted with approval by Allahabad High Court in Q.E. v. Ambika Prasad.3 The
offence of sedition has been known in England for centuries. Every State whatever its form of government has to
be armed with the power to punish those who by their conduct jeopardise the safety or disseminate such feelings
of disloyalty as have the tendency to lead the disruption of the State or breach of public order.
In Niharendra Dutta Majumdar,4 Sir Maurice Gawyer said : 'The first fundamental duty of every
government is the preservation of order, since order is the condition precedent to all civilization and advance of
human happiness: This duty has no doubt been sometimes performed in such a way as to make the remedy worse
than disease, but it does not cease to be a matter of obligation because some on whom the duty rests have
performed it well, ft is the answer of the State to those who for the purpose of attacking or subverting it try to
disturb its tranquillity, to create public disturbance or to promote disorder or who incite others to do so. Words,
deeds and writings constitute sedition if they have.this intention or Jhis tendency. Public disorder or the
reasonable anticipation or likelihood of public disorder is Aus the gist of the offence. The acts or words
complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their
intention or tendency".
The above statement of law was not approved by their Lordships of the Privy Council in the case of Emperor v.
1. I.L.R. 19 Cal. 35.

2. I.L.R. 22 Bom. Il2.
3. I.L.R. 20 All. 55.
4. A.I.R. 1942' EC. 22 at
26. 1
Soda Shiv Narayan, and they held that the language of section 124-A or of the rules under which the case was
tried not justify the statement of law as made by the C.J. The expression "excite did disaffection" did not include
"excite disorder". The dicta in Tilak and Bensant's case was approved.
After coming into force of the Constitution the validity of this section was considered by the Supreme
Court in Ramesh Thapart2 and Brij Bhusan's cases. As a result of these two decisions Constitution First
Amendment Act was passed in 1951. Thereafter, in Kedar Nath Singh,4 case the validity of this section was
again questioned on the ground of the provisions' of this section being in violation of freedom of speech and
expression. The plea was negatived by the court and the section was held to be constitutional. The explanation to
the section makes it clear that criticism of public measures or comment on Government action, however strongly
worded, within reasonable limits and consistent with the fundamental right of freedom of speech and expression
is not affected. It is only when the words have the pernicious tendency or intention of creating public disorder or
disturbance of law and order that the provisions of the section are attracted.
Any act within the meaning of section 124-A which has the effect of subverting the government by
bringing that government into contempt or hatred or creating disaffection against it would be within the penal
statute because the feeling of disloyalty to the government established by law or enmity to it imports the idea of
tendency to public disorder by the use of actual violence or incitement to offence.
In other words, any written or spoken words, etc. which have implicit in them the idea of subverting
government by violent means which are compendiously included within the term 'revolution' have been made
penal by the section in question.
Exciting disaffection.—To constitute an offence under this section it is not necessary that one
should excite or attempt to excite mutiny or rebellion or any kind of actual disturbance, it would be
sufficient that one tries to excite feeling of hatred or contempt towards the government. 5 In a case
the Federal Court has opined that the essence of the offence of sedition is incitement to violence;
mere abusive words are not enough and that "public disorder or the reasonable anticipation or
likelihood of public disorder is the gist of the offence". The acts or words complained of must either
incite to disorder or must be such as to satisfy reasonable men that it is their intention or tendency. 6
But in a later case this view was overruled by the Privy Council.7
The offence under this section does not require an intention to incite violence, of public
disorder.8 The essence of the offence under this section consists in the intention with which the
language is used. The intention of a speaker, writer or publisher may be inferred from the particular
speech, article or letter. The intention is gathered from the articles. The requisite intention cannot be
attributed to a person if he was not aware of the contents of the seditious publication.9
In B.G. Tilak's case,10 it was pointed out that if, on reading the articles or speeches, the reasonable, natural and probable effect of the articles or speeches on the
minds of those who read them or to whom they were addressed appears to be that feelings of hatred, contempt or disaffection, would be excited towards the government, the
offence is committed. But in considering the intention of the 'accused, and the effect his writings are likely to produce, it is necessary to take into consideration the state of
the country and of the public mind at the date of publication.' Not only the time but the place, the circumstances and the occasion of publication are material. Regard must
1. A.I.R. 1943 P.C. 82.

2. A.I.R. 1950 S.C. 124.
3. A.I.R. 1950 S.C. 129.
4. A.I.R. 1962 S.C. 955.
5. Bal Gangadhar Tilak (1867) 22 Bom. 112.
6. Niharendra Dutta Majumdar, (1942) F.C.R. 38.
7. Sadashiv Narayan, (1947) 49 Bom. L.R. 526.
8. Ram Nandan v. State, A.I.R. 1959 All. 101.
9. Chutmilal, (1931) 12 Lah. 483.
10. I.L.R. 22 Bom. 112.
also be had to the character and description of that part of the public who are expected to read the words.2 To sum up, the time, the place, the circumstances and the occasion
of publication, all are important.
Attempt.—A Person may be charged not only with exciting but also with attempting to
excite and both successful and' unsuccessful attempts to excite disaffection were placed on the same
footing. So even if a person had only tried to excite the feeling he could be convicted. 3 in Surendra
Narayan Adicharya4 it was held that sending through the post of a packet containing a copy of a
manuscript of a seditious publication with a covering letter requesting the addressee to circulate it to
others, when the same was intercepted by another person and never reached the addressee,
constitutes an attempt to commit an offence under this section.
Government established by law in India.—The expression "Government established by
law in India" includes the executive power in action and does not mean merely the constitutional
framework. It includes the State Government as well as the Central Government. 5 Government does
not mean the person or persons for the time being. It means the person or persons collectively, in
succession, who are authorised to administer Government for the time being. One particular set of
persons may be open to objection, and to assail them and to attack them and excite hatred against
them is not necessarily exciting hatred against the government because they are only individuals and
are not representatives of that abstract conception which is Government. 6 To suggest a change in the
form of Government cannot be said to be causing disaffection towards the Government established
by law or to bring present Government into hatred or contempt. 7 A general criticism of certain
officers cannot be deemed to1 be a criticism of Government-established by law in India. Similarly an
attempt to remove from power the ministers in office in any State or any agitation for the repeal of
an Act of Parliament cannot fall under the section if no unlawful means' are employed.8
/Various Forms of Excitement.—Disaffection may be excited in a number
of v/ays. Writing of any kind, poem, drama, story, novel or essays may be used
for, the purpose of exciting disaffection. But seditious writing, if it remains in
the hands of the author or unpublished does not constitute this offence because
publication of some kind is necessary.9 Sending of seditious matter by post
addressed to someone not by name butf by designation as the representative of a
large body (such as of students or teachers) amounts to publication if it is opened
by anybody.1"_______________
1. Per Lord Fitzgerald in Sullivan, 11 Cox. 50 at p. 59.
2. Satyendra Nath Mazumdar v. Emp., A.I.R. 1931 Cal. 33"?
3. B.G. Tilak, (1867) I.L.R. 22 Bom. 112.
4. (1911) 39 Cal. 522.
5. Kshiteesh Chandra Roy v. Emp., A.I.R. 1932 Cal. 547.
6. Blmskar, '4906) 8 Bom. L.R. 421.
7. Arjim Arora v. Emp., A.I.R. 1937 All. 295.
8. Dhirendra Nath Sen, (1938) 2 Cal. 672.
9. Foster 198.
10. Suresh Chandra Sanyal, (1912) 39 Cal. 6Q6.
Not only the author of seditious matter but whosoever uses in any way words or printed
matter for the purpose of exciting feelings of disaffection to the Government is liable under this
section.1 The gravamen of the offence consists in the publication and not in the authorship of the
seditious matter.
The printer, the publisher, the editor or the owner or proprietor of the press of a seditious
publication is also liable like the author unless he proves that he was absent and was not aware of
the contents of the paper beyond the fact that he was the declared proprietor and keeper of the
press.2 In order to escape liability such printer or publisher etc. must prove lack of knowledge on his
part. Sedition does not necessarily consist of written matter; it may be evidenced by a woodcut or
engraving of any kind3 or by exhibition of flags.
Explanation 1.—Explanation 1 makes it clear that the word "disaffection" includes
disloyalty and all feelings of enmity. Disaffection means anything which is 'contrary to affection'. It
is very much nearer to 'hatred or dislike'. To urge people to rise against the Government is
tantamount to trying to excite feelings of disloyalty in their minds. 4 'Feelings of enmity' includes ill-
will, hostility, feelings of dislike amounting to enmity, and anything of a similar class or character
which can be summarised under the expression 'disloyalty and 'feelings of enmity'.5
Explanations 2 and 3.—This section has taken care to indicate clearly that strong words
used to express disapprobation of the measures of government with a view to their improvements or
alternatively lawful means would not come within the section. Similarly, comments however
strongly worded expressing disapprobation of actions of government without inciting those feelings
which generate the inclination to cause public disorder by acts of violence would not be penal.
In other words, disloyalty to government established by law is not the same thing as
commenting in strong.terms upon measures or acts of government or its agencies so as to ameliorate
the conditions of the people or to secure cancellation or alteration of those acts or measures by
lawful means, that is to say, "without exciting those feelings of enmity and disloyalty which imply
excitement to public disorder or use of violence."
Disapprobation.—Disapprobation means disapproval. One may disapprove of man's
sentiments or actions and yet he may like him.6
Liability of editor's etc.—The editor of a paper will be liable for unsigned seditious letters appearing in the newspaper.7 Where extracts of foreign newspapers
'are published as a news,-item, it may attract the provisions of this section if such writings are seditious libels.8 Republication of seditious articles from another
newspaper//one of which only was filed as an exhibit by the prosecution and used ir/the case against the editor of that paper on his trial for sedition, is not a repotf/of the
Court of Justice, and is, therefore, punishable.9
Dramatic Performance.—Any dramatic performance likely to excite feelings of disaffection

to the Government may be prohibited by the Government and persons taking part in any such
performance may be punished.
1. B.G. Tilak, (1667) I.L.R. 22 Bom. 112.
2. Chunni Lai, (1931) 12 Lah. 483.
3. Alexander M. Sullivan, (1868) llôx 44 at 51.
4. Per Fawcett, J. in Phillip S. Pratt 1927 (Unrep. Bom.).
5. Per Blackwell, J. in Krishnaji Khadilkar, 1929 (Unrep. Bom).
6. B.G. Tilak, (1867) 22 Bom. 112.
7. Apurba Krishna Bose, (1907) 35 Cal. 141.
8. Alexander M. Sullivan, (1868) ll'.Cox. 44.
9. Apurba Krishna Bose, (1907) 35 Cal. 141.
125. Waging war against any Asiatic power in alliance with the Government of
India.—Whoever wages war against the Government of any Asiatic power in alliance or at
peace with the Government of India or attempts to wage such war, or abets the waging of
such war, shall be punished with imprisonment for life, to\ which fine may be added, or with
imprisonment of either description for a term which may extend to seven years, to which fine
may be added, or with fine.
COMMENT
This section aims at protecting friendly Asiatic Powers from the ravages of Indian citizens
who may make excursions into their territory, and then run back to the comparative security of their
own homes. The fulfilment of the obligations of the State to allies and friendly powers require that
the abetment of such schemes by its subjects whether by furnishing supplies or otherwise should be
forbidden.
126. Committing depredation on territories^ of power at peace with the Government of
India.—Whoever commits depredation, or makes preparation to commit depredation, on the
territories of any power in alliance or at peace with the Government of India, shall be punished
with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine and to forfeiture of any property used or intended to be used in
committing such depredation, or acquired by such depredation.
COMMENT
This section deals with depredation on territories of powers at peace with the Government of
India. The following are ingredients of this section :—
(1) Depredation or making preparations for depredation;
(1) Such depredation must be on territories of power at peace with the Government
of India. Depredation is briefly plunder. It is pillaging by men or animals.
127. Receiving property taken by war or depredation mentioned in sections 125 and
126.—Whoever, receives any property knowing the same to have been taken in the commission
of the offences mentioned in sections 125 and 126, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to fine
and to forfeiture of the property so received.
COMMENT
This section provides for punishment of persons who knowingly receive property taken by
war or depredation against an Asiatic power in alliance or at peace with the Government of India.
Ingredients.—The following are its ingredients :—
(1) Property in question must have been obtained by waging war against an Asiatic
power in alliance with the Government of India and obtained by depredation in such
territories.
(2) The offence of waging of war or depredation must be such as is made punishable
by section 125 or 126.
(3) The accused must have received such properties.
(4) He must have received the properties with the knowledge of their character as
being obtained by depredation, etc.
128. Public servant voluntarily allowing prisoner of State or of war to escape.—Whoever,
being a public servant and having the custody of any State prisoner or prisoners of war,
voluntarily allows such prisoner to escape from any place in which such prisoner is confined,
sham be punished with imprisonment for life, or imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
( S. 130
COMMENT
Ingredients.—The following are ingredients of this section :
(1) The accused must be a public servant;
(2) The accused had the custody of the prisoner,
(3) The prisoner must be a State prisoner or prisoner of war;
(4) Such prisoner must have escaped from the place where he was confined; and
(5) The accused voluntarily allowed such prisoner to escape.
State Prisoner.—State prisoner is a prisoner whose confinement is necessary in order to
preserve the security of India from foreign hostility or from internal commotion, and who has been
confined by the order of the Government of India
Prisoner of war.—Prisoner of war is an enemy taken in arms who is according to the law of
civilised war to be treat&d as prisoner till the termination of hostilities, and not slain.
129. Public servant negligently suffering such prisoner to escape.—Whoever, being a
public servant and having the custody of any State prisoner or prisoner of war, negligently
suffers such prisoner to escape from any place of confinement in which such prisoner is
confined, shall be punished with simple imprisonment for a term which may extend to three
COMMENT
This section deals with the Government servant, who has the custody of the prisoner, acting
negligently in allowing prisoner to escape.
Ingredients.—The following are ingredients of this section—
1. The accused must be a public servant;
1. The accused had in his custody a State prisoner to escape from place where he
was confined.
2. The accused negligently allowed such a prisoner to escape from place where he
was confined.
130. Aiding escape of rescuing or harbouring such' prisoner.—Whoever, knowingly aids
or assists any State prisoner or prisoner of war in escaping from lawful custody, or rescues
or attempts to rescue any such prisoner, or harbours or conceals any such prisoner who has
escaped from lawful custody, or offers or attempts to offer any resistance to the recapture of
such prisoner, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—A State prisoner or prisoner of war, who is permitted to be at large on his parole
within certain limits in India, is said to escape from lawful custody if he goes beyond the limits within
which he is allowed to be at large.
COMMENT
1. The State prisoner or the prisoner of war in question must be in lawful custody;
2. The accused aided or assisted the escape of such prisoner;
3. The accused must have done so knowingly;
4. The accused rescued or attempted to rescue any such prisoner;
5. He must have harboured or concealed* any "such prisoner; or
6. He must have resisted or attempted to resist the recapture of such prisoner.
The accused must know that the person assisted is a State prisoner or ; prisoner of war. The
use of the word 'whoever' in this section implies that tb accused need not be a Government servant.
238 [ S. 125
INDIAN PENAL CODE
CHAPTER VII OF OFFENCES RELATING TO THE

ARMY, NAVY AND AIR FORCE
131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his
duty.—Whoever abets the committing of mutiny by an officer, soldier, sailor or airman in any
Army, Navy, or Air Force of the Government of India, or attempts to seduce any such officer,
soldier, sailor or airman from his allegiance or his duty, shall be punished with imprisonment
for life, or with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
Explanation.—In this section the words, "officer!1, "soldier", "sailor" and "airman" include any
person subject to the Army Act, the Army Act, 1950, the Naval Discipline Act, the Indian Navy
(Discipline) Act, 1934, the Air Force Act or the Air Force Act, 1950, as the case may be.
COMMENT
The section relates to the offence of abetting mutiny. The term mutiny has not been defined
in the Code. It implies collective insubordination, or a combination of two or more persons to resist
or to induce others to resist lawful military authority. This section only applies to incitement leading
the soldier to mutiny en masse or to the breach of his allegiance or his duty. Distribution of
pamphlets among Indian troops containing an article comparing the lot of Indian soldiers with that
of British soldiers during the British rule in India was held to fall under section 124-A and this
section.1
132. Abetment of mutiny if mutiny is committed in consequence thereof.—Whoever abets
the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air
Force of the Government of India, shall, if mutiny be committed in consequence of that
abetment, be punished with death or with imprisonment for life, or imprisonment of either
COMMENT
Section 132 provides for enhanced punishment in those cases where in pursuance df the
abetment the mutiny is committed.
133. Abetment of assault by soldier, sailor or airman on his superior officer, when in
execution of his office.—Whoever, abets an assault by an officer, soldier, sailor or airman in
the Army, Navy or Air Force of the Government of India, on any superior officer being in
the execution of his office, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine.
COMMENT
This section punishes the abetment of an assault by any one other than a soldier, sailor or
airman.
134. Abetment of such assault, if the assault is committed.—Whoever abets an assault by
an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of
India, or any superior officer, being in the execution of his office, shall, if such assault be
committed in consequence of that abetment, be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine.
COMMENT
This section punishes the abetment of an assault when such an assault is committed in
consequence of that abetment.
1. Pindi Das, (1905) 6 Cr. L.J. 411.
/.
135. Abetment of desertion of soldier, sailor or airman.—Whoever abets the desertion of

any officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of
India, shall be punished with imprisonment of either description for a term which may extend
to two years, or ^with fine, or with both.
COMMENT J
This section punishes the abetment of desertion of soldier, sailor or airfnan. The desertion
abetted need not take place.
136. Harbouring deserter.—Whoever, except as hereinafter excepted, knowing or having
reason to believe that an officer, soldier, sailor or airman, in the Army, Navy or Air Force of
the Government of India, has deserted, harbours such officer, soldier, sailor or airman, shall
be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
Exception.—This provision does not extend to the case in which the harbour is given by a wife to
her husband.
COMMENT
This section punishes a person who harbours a deserter of Army, Navy, or Air. Force. The
word "harbour" is defined in section 52 of the Code. The essence of the offence is concealment of a
deserter to prevent his apprehension. Wife harbouring her husband is an exception.
137. Deserter concealed on board merchant vessel through negligence of master.—The
master or person in charge of a merchant vessel, on board of which any deserter from the
Army, Navy or Air Force of the Government of India is concealed, shall, though ignorant of
such concealment, be liable to a penalty not exceeding five hundred rupees, if he might have
known of such concealment but for some neglect of his duty as such master or person in
charge, or but for some want of discipline on board the vessel.
COMMENT
The master or person incharge of a merchant ship is punished under this section if a deserter
conceals himself on board such ship. The master shall be liable even though he is ignorant of such
concealment.
138. Abetment of act of insubordination by soldier, sailor or airman.—Whoever abets
what he knows to be an act of insubordination by an officer, soldier or airman, in the Army,
Navy or Air Force, of the Government of India, shall if such act of insubordination be
committed in consequence of that abetment, be punished with imprisonment of either
description for a term which may extend to six months, or with fine or with both.
COMMENT
Ingredients.—There are two ingredients of this section :—
(1) The accused abetted the act of insubordination by an officer, soldier, sailor or
airman in the Army, Navy, or Air force of the Government of India; and
(2) The accused knew that the offence abetted was an act of insubordination.
138-A. Application of foregoing sections to the Indian Marine Service.—[Rep. by the Amending Act,
1934, (XXXV of 1934) S. 2 and Schedule (Act XXXV of 1934)].
139. Persons subject to certain Act.—No person subject to the Army Act, the Army Act, 1950, the
Naval Discipline Act, the Indian Navy (Discipline) Act, 1934, the Air Force Act, the Air Force Act, 1950, is
subject to punishment under this Code for any offence defined in this chapter.
140. Wearing garb or carrying token used by soldier, sailor or airman.—Whoever, not being a
soldier, sailor or airman in the Military, Naval or Air Service of the Government of India, wears any garb
or carries any token resembling any garb or token used by such a soldier, sailor or airman, with the
intention that it may be believed that he is such a soldier, sailor or airman, shall be punished with
imprisonment of either description for a term which may extend to three months, or with fine which may
extend to five hundred rupees, or with both.
240 [ S. 125
INDIAN PENAL CODE
S. 140 I OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR FORCE 295
COMMENT
The essence of the offence made penal by this section is the intention of the accused wearing the
dress of a soldier for the purpose of inducing others to believe that he is in service at the present time.
However, merely wearing a soldier's uniform without the specific intention is no offence. Simply wearing
cast-off garbs of soldiers is no offence unless it is done with the intention to pass-off as a soldier.
CHAPTER VIII
OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY
141. Unlawful assembly.—An assembly of five or more persons is designated an "unlawful
assembly" if the common object of persons composing that assembly is—
First.—To overawe by criminal force, or show of criminal force, the Central or any State
Government or Parliament or the Legislature of any State, or any public servant in the exercise of the
lawful power of such public servant ; or
Second.—To resist the execution of any law or of any legal process ; or
Third.—To commit any mischief or criminal trespass or other offences ; or
Fourth.—By means of criminal force, or show of criminal force, to, any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of
water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or
supposed right ; or
Fifth.—By means of criminal force, or show of criminal force, to compel any person to do what he
is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.—An assembly, which was not unlawful when it assembled, may subsequently become
an unlawful assembly.
COMMENT
The object of section 141 is to prevent to resort to criminal force by five or more to do any of
the acts stated in this section.1
In early times mere assembly of men was considered a menace to the society and was,
therefore, regarded unlawful. But later on with the development of democratic societies the
assembly of men became a public necessity. Assembly of men cannot be punished if it is for a
lawful purpose because mere assembly is not punishable unless it is for an unlawful purpose.
Therefore, it becomes necessary to describe those unlawful objects which make an assembly
unlawful. Now the illegality is transferred from assembly to the objects of the assembly. The
essence of offence under this section is the combination of several persons, united in the purpose of
committing a criminal offence, and the consensus of purpose is itself an offence distinct from the
criminal offence which these persons agree and intend to commit.2
Ingredients.—An unlawful assembly is an assembly of five Qr more persons if their common
object is :
1. To overawe by criminal force
(a) The Centra] Government, or
(b) The State Governmental, or
(c) The Legislature, or
(d) Any public servant in the exercise of lawful power.
2. To resist the execution of law or legal process.
3. To commit mischief, criminal trespass, or any other offence.
4. By criminal force.
(a) to take or obtain possession of any property, or
(b) to deprive any person of any incorporeal right, or
1. Pranbandhu Misra, I.L.R. (1952) Cut. 219.

2. Mattivenkanna, (1922) 46 Mad. 257.
(c) to enforce any right or supposed right. 5. By
criminal force to compel any person
(a) to do what he is not legally bound to, do, or
(b) to omit what is legally entitled to do.
Five or more persons.—To constitute an unlawful assembly there must be more than four
persons i.e. five or more persons. They must share the common object of others. Where more than
five are prosecuted for rioting but some of them are acquitted and those who are convicted are less
than five in number, the conviction is illegal.1
Common object.—The essence of an unlawful assembly is the common object of the
persons forming assembly. The object must be common to all those persons who constitute the
assembly; that is they should all be aware of it and must concur in it. The object must be one of
those set out in this section. Mere presence in an assembly does not make a person member of an
unlawful assembly unless it is shown that he had done something or omitted to do something which
would make him a member of the unlawful assembly or unless being aware of the facts that an
assembly is unlawful one intentionally joins that assembly or continues to be its member. 2 An
assembly of five or more persons cannot be called an unlawful assembly if its object is to defend
property by the use of force within the limits prescribed by the law.3
Clause 1.—The first illegal object is to overawe by criminal force the Government, the
legislature or the public servant etc. A person is said to overawe another when he restrains him by
awe, fear or superior influence. Overawing merely by superior influence is not criminal, nor is
overawing by fear illegal unless it is attended by show of criminal force. But where a person is
terrified into doing what he had otherwise no mind to do, and refraining from doing what he had
otherwise a mind to do he is said to be overawed, and where that fear is brought on by the show of
force, he is said to be overawed by show of criminal force. In order that this section may have apply
it is necessary that the assembly should have had the common object to overawe and it is not
enough that the. assembly did have the effect of overawing.
Clause 2.—Under this clause the act resisted must be a legal act. Where a number of persons
resisted an attempt to search a house which was being made by officers, who did not have the
power and authority to do so, this resistance was held to be legal and those involved in resisting
were not guilty of the offence under this section. 4 The execution of any law means the carrying out
of the provision of law or the enforcement of any act warranted by law. Process means a measure,
and a 'legal process' means a measure in accordance with law. Resistance to some law or legal
process, connotes some overt act, and mere words, when there is no intention of carrying them into
effect are not sufficient to prove an intention to resist.5
Clause 3.—Although only two offences are specifically enumerated but the words 'or other
offence' used in this clause means that it is intended to include all offences. But if that was the
intention of the Legislature one fails to
1. Kartar Singh, A.I.R. 1961 S.C. 1787.
2. Baladin, A.I.R. 1956 S.C. 181; Masalti, A.I.R. 1965 S.C. 202; Bishambhar, A.I.R. 1971 S.C. 2381.
3; Mathu Pandey, (1970)1 S.C.R. 358.
4. Narain, (1875) 7 N.W.P. 209.
5. Abdul Hamid, (1922) 2 Pat. 134.
understand as to why only 'mischief and criminal trespass' were specially mentioned.
Clause 4.—This clause aims at punishing the acts because of their injurious consequences
which it is likely to cause to public peace. This clause does not take away the right of private
defence of property. The rule that 'no person is entitled to vindicate his right to possession of any
property by resort to criminal force' appears to be in conflict with the law relating to private defence
of property. But the courts do recognise the right of private defence because if the use of force is
justifiable under one section, it cannot be held unjustifiable under this or any other section.
The expression 'right or supposed rights' makes a division into (i) rights in actual enjoyment
when interfered with, and (ii) rights claimed though not in actual enjoyment when interfered with.'
Where a person is in undoubted possession of his land and it is attacked he has every right to defend
within the limits of law of private defence under the Code. Acts done in defence of property in such
cases cannot be said to be done to 'enforce any right'. But of course in cases of doubtful claims, if
either party used force, that would amount to enforcing a right and in that case there would be no
right of private defence.2
In Rambabu? a licence was obtained for taking out a procession but the procession violated
the conditions of licence by not observing the prescribed route and by crossing the limit upto which
the procession was permitted to proceed. The police and the Magistrate directed them not to do so
but a group of processionists made a determined bid to break through the police cordon. It was held
that the group constituted an unlawful assembly.
Clause 5.—In order to bring a case under this section it would not be enough to prove show
of criminal force or use of criminal force to take possession of property, unless the use of force was
accompanied by some criminal intent. For instance, if A sees B committing theft, A is entitled to
arrest B under section 43 of the Cr. P. Code, 1973. If some other persons intervene to secure release
of the thief from A their act falls within the ambit of clause 5 of this section and they will be guilty
of the offence under section 147 Indian Penal Code.
Explanation.—In Moti Das? case the Supreme Court noted with approval that an assembly
which was lawful in its inception may turn out into an unlawful assembly by the subsequent acts of
its members and without previous concert among its members provided others forming the
assembly have also acquiesced in such unlawful acts. Illegal acts of one or more members, not
acquiesced in by others, do not make the assembly unlawful.
Where some persons associate themselves with the mob with innocent motives, but they take
part in the proceedings even when the assembly has become unlawful, they will be liable as being
members of an unlawful assembly.5 in Tirakadu? certain persons assembled to prevent a procession
by force from passing over a certain street. They neglected the orders of police when asked to
disperse. Therefore, they were held guilty of being members of an unlawful assembly.
Cases.—In Banwari v. State of Rajasthan,1 the accused six in number came armed with
1. Ganouri Lai Das, (1889) 16 Cal. 206.
2. Raju A.1.R, 1961 Mys. 74.
3. (1945) 25 Pat. 125.
4. A.I.R. 1954 S.C. 657.
5. Periapien, (1883) 1 Weir 66.
6. (1890) 14 Mad. 126.
deadly weapons and surrounded .Shiv Prasad and Man Singh. One of them shouted to exterminate
the enemy while others were beating them. It was held that none of the six accused persons who
happened to present at the place of the occurrence and participated in assault could be said to be
there for innocent purpose. The nature of the weapon which they were holding from the very
beginning and the fact that all of them had come together from a pretty long distance at a place
which was neither in front of their house nor in front of their land, as also the fact that all of them
emerged at a time and participated in the assault and went away together after causing numerous
injuries suggested that all those accused constituted themselves into an unlawful assembly. The
common object of the persons comprising that assembly was obviously to commit criminal
offences, namely, murder.
142. Being member of unlawful assembly.—Whoever, being aware of facts which render
any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said
to be a member of unlawful assembly.
COMMENT
This section makes it clear that if a person remains in an unlawful assembly after he became
aware that the assembly was unlawful, he shall be deemed to be a member of an unlawful assembly
and shall be liable as such. In order to attract this section one should either intentionally join
knowing that the assembly is unlawful or continue to be a member after being aware of the fact that
an assembly though not unlawful at its inception has subsequently turned out to be so. Here
'continues' means physical presence with the knowledge of unlawful character of the assembly.
143. Punishment.—Whoever is a member of an unlawful assembly, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine or with both.
144. Joining unlawful assembly armed with deadly weapon.—Whoever, being armed with any
deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member
of an unlawful assembly, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
COMMENT
The offence under this section is an aggravated form of the offence under section 143.
Greater punishment is prescribed under this section because the risk to public tranquillity is
aggravated by the intention of using force evinced by carrying arms. Where the accused is armed
with any thing which, if used as a weapon of offence, is likely to cause death, he shall be liable
under this section.
145. Joining or continuing, in unlawful assembly, knowing it has been commanded to
disperse.—Whoever joins or continues in an unlawful assembly, knowing that such unlawful
assembly has been commanded in the manner prescribed by law to disperse, shall be punished
with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
COMMENT
This section aims at punishing the disobedience of any lawful order promulgated by a public
servant. The order must relate to dispersing an unlawful assembly.
146. Rioting.—Whenever force or violence is used by an unlawful assembly, or by any
member thereof, in prosecution of the common object of such assembly, every member of such
assembly is guilty of the offence of rioting.
1. (1979) Cr. L.J. 161 (Raj).
COMMENT
A riot is simply an unlawful assembly in a particular state of activity, that activity being
accompanied by the use of force or violence. It is only the use of the force that distinguished rioting
from an unlawful assembly.1 The word 'riot' is a term of art and to popular belief a riot may involve
no noise or disturbance of the neighbours though there must be some force or violence.2
Ingredients.—The following are the ingredients of the offence of rioting :—
(1) The accused persons must be five or more in number and form an unlawful
assembly;
(1) The accused must be animated by a common object;
(2) The force or violence must be used by the unlawful assembly or any member
thereof in prosecution of the common object.
Meaning of force or violence.—Force is defined in section 349, IP. Code and it has been
used here in that sense.3 It is restricted to force used against persons only. Violence is not restricted
to force used against persons only but extends also to force against inanimate objects. 4 Thus
'violence' is wider than 'force', because it includes force used against property and other inanimate
objects. Even the slightest use of force by "any member of an unlawful assembly, if proved to be
unlawful, constitutes rioting.5 But force must have been used in prosecution of the common object
of the assembly.
Common object.—The mere use of force by a number of men assembled does not render all
of them liable for rioting. The essence of the offence lies in the use of force to achieve common
purpose. If the common object of an assembly is not illegal, it is not rioting even if force is used by
any member of that assembly.6
Sudden quarrel.—If a number of persons assembled for any lawful purpose suddenly
quarrel without any previous intention or design they would not be liable for rioting.
It is not a riot for a member of the audience in a public theatre to applaud or hiss a
performance, but if a number of men come prepared to interrupt the performance by causing a
disturbance, it may be rioting though they may not use any personal violence or cause any injury to
the house.7 Where two parties meet without any intention to quarrel, but all of a sudden a fight
ensues, in which both sides use force, it cannot be said to be a case of rioting in the absence of any
evidence to previous concert, which cannot be inferred from the mere fact of joint action, for such
action may have been spontaneous and not necessarily the result of a previous design.8
Difference between riot and unlawful assembly.—If the parties assemble in a tumultuous manner and actually execute their purpose with violence, it is a riot,
but if they merely meet upon a purpose which, if executed would make them rioters and, having done nothing, they separate without carrying their purpose into effect, it is
an unlawful assembly.1 It is only the use of force that distinguishes rioting from an unlawful assembly.2
Spectator and wayfarers etc.—Spectators, wayfarers etc. attracted to the scene Of rioting by
1. Per Plowderi,'"., in Rasul, (1889) P.R. No. 4.
2. R. v. Sharp, (1957) 1 All E.R. 577.
3. Ghani Khan, 46 I.C. (Oudh) 844.
4. Samaruddin, (1912) 40 Cal. 367.
5. Ramadeen Doobay, (1876) 26 W.R. (Cr.) 6.
6. Parmeshwar Singh, (1899) 4 C.W.N. 345.
7. Clifford v. Brandon, 2 Camp. 358.
8. Mazhur Hossein, 5 N.W.P.H.C.R. 208.
curiosity, as generally happens in the countryside when a riot or offence is going on, should not, by
reason of their mere presence at the scene of rioting, be held to be members of unlawful assembly
or rioters. But, of course, if they are proved to have marched with the rioters for a long distance,
when the rioters were shouting tell-tale slogans and pelting stones, it will be for them to prove their
innocence under section 106 of the Evidence Act.3
Cases.—In Raghunath Rai,4 several Hindus, acting in concert, forcibly removed an ox and
two cows from the possession of a Mohammedan, not for the purpose of causing 'wrongful gain' to
themselves or 'wrongful loss' to the owner of the cattle, but for the purpose of preventing the killing
of the cows. They were held guilty of rioting. In Jairam Mahton5 the accused and party
accompanied with B, went armed with lathis to fish in a tank in which B had some share. The
complainant who too had a large share in the tank went there, with some of the co-sharers to protest
on the ground that the accused had no share in the tank. A fight ensued in the course of which some
of the complainants' party received injuries. It was held that the accused were guilty of rioting and
voluntarily causing hurt. In a case some stray catties were rounded up by an authorised Inspector in
this regard. The owners stopped him in the way to the cattle pond and demanded immediate release
of the cattle. A fight ensued and the Inspectors' party was hurt. In a charge for rioting and causing
grievous hurt the owners pleaded the right of private defence of property. In this case the defence
will fail because there is no right of private defence against an act of a public servant.
In Deodhari Koeri v. Emperor? there was some family dispute between A and B who were
relatives. Their houses were adjacent to one another. On 18th March, 1936 A and B came to blows
over the use of a cattle trough and pegs just outside the house of A. The evidence showed that A
shouted out : "Help, I am being killed", and on his cry the other petitioners assembled with lathis. It
was held that merely coming to the spot even with lathis or other weapons in response to a cry by
A, that he was being killed, can hardly be considered sufficient to make them guilty of rioting.
It was held in State of U.P. v. Dan Singh,1 that when people are killed during a riot, there
may be a possibility of the incident being exaggerated or some innocent persons being named as
being part of the assailants' party. This may happen wittingly or unwittingly. But just because there
may be some inconsequential contradictions or exaggeration in the testimony of the eye-witnesses
that should not be a ground to reject their evidence in its entirety in the case of rioting, where there
are a large number of assailants and a number of witnesses, it is but natural that the testimony of the
witnesses may not be identical. What has to be seen is whether the basic features of the occurrence
have been similarly viewed and/or, "described by the witnesses in a manner which tallies with the
outcome of the riot viz., the injuries sustained by the victims and the number of people who are
1. Per Patterson J., in Brit, 6 C. & P. 154.
2. Per Plowden J., in Rasul, (1889) P.R. No. 4.
3. In re Arulanandu, A.I.R. 1952 Mad. 267.
4. (1892) 15 All. 22.
5. (1907) 35 Cal. 103.
6. A.I.R. 1937 Pat. 34.
7. 1997 Cr. L.J. 1150 (S.C).
attacked and killed.

147. Punishment for rioting.—Whoever is guilty of rioting, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon.—Whoever is guilty of rioting, being armed with a deadly
weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished
with imprisonment of either description for a term which may extend to three years, or with fine, or with
both.
COMMENT
An aggravated form of rioting is made punishable by this section, and therefore, an enhanced
punishment is also provided for an offence under this section.
In State of Andhra Pradesh v. Thakkidiram Reddy,1 there was bitter enmity between the two
parties. Miscreants armed with various weapons trespassed into house of deceased at midnight after
breaking open the door and the accused dragged deceased out of the bed-room to frontyard and beat
him to death. It was held that the above facts clearly indicated that the accused persons had formed
an unlawful assembly with a common object to commit some offence. In the present case the
common object was to commit murder. In such a case every member of assembly would.be guilty
for the offence committed by any other member of the mob, in furtherance of the common object,
without proof of any overt act committed by him. It was further observed that to ascertain whether a
particular person shared the common object of the unlawful assembly is not essential to prove that
he -committed some illegal overt act or had been guilty of some illegal omission in pursuance of the
common object. Once it is demonstrated from all the facts and circumstances of a given case that he
had shared the common object of the unlawful assembly in furtherance of which some offence was
committed or he knew was likely to be committed by any other person, he would be guilty of that
offence. Undoubtedly commission of an overt act by such a person would be one of the tests to
prove that he shared the common object but it is not the sole test.
149. Every member of unlawful assembly guilty of offence committed in prosecution of
common object.—If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every person who, at the time
of the committing of that offence, is a member of the same assembly, is guilty of that offence.
COMMENT
Ingredients.—The following are the ingredients of this offence :
~~ (1) Some offence must be committed by any member of an unlawful assembly; and
(2) Such offence must have been committed in prosecution of the common object of
the assembly; or must be such as the members of the assembly knew to be likely to be
committed.
Scope of the section.—This section is divided into two parts : (1) an offence committed by a
member of an unlawful assembly in prosecution of the common object of that assembly; and (2) an
offence which the members of that assembly knew to be likely to be committed in prosecution of
the common object.
1. 1998 Cr. L.J. 2702 (S.C).

Offence Committed by members of the unlawful assembly.—The
Supreme Court in Yunis v. State of Madhya Pradesh,1 held that presence of accused as part of
unlawful assembly is sufficient for conviction. The fact that accused was a member of unlawful
assembly and his presence at place of occurrence has not been disputed is sufficient to hold him
guilty even if no overt act is imputed to him.
It was held in Mahmood v. State of U.P.,2 that once it is established that a person was a
member of unlawful assembly, prosecution need not establish any specific overt act to any of the
accused for fastening of liability with the aid of Section 149, I.P.C.
It was held in Ram Dular Rai v. State of Bihar? that mere presence in unlawful assembly
cannot render a person liable unless he was actuated by common object and that object is one of
those set out in Section 141 of I.P.C. Common object is different from a 'common intention' as it
does not require prior concert and prior meeting of minds before attack.
It was held in Ram Dular Rai v. State of Bihar,4 that a common object may be formed by
express agreement after mutual consultation but that is by no means necessary. It may be at any
stage by all or a few members of the assembly and the other members may just join and adopt it.
Once formed it need not continue to be the same. It may be modified or altered or abandoned at any
stage. The expression "in prosecution of common object", as appearing in Section 149 have to be
strictly construed as equivalent to "in order to attain the common object." It must be immediately
connected with the common object by virtue of the nature of the object. There must be community
of object and the object may exist only upto a particular stage and not thereafter.
Mere presence in an unlawful assembly cannot render a person liable unless he was actuated
by common object and that object is one of those set out in Section 141. Common object is different
from a "common intention" as it does not require prior concert and common meeting of minds
before attack.
It was also held that Section 149 applies when presence of five or more than five persons is
established, but only four are identified. Section 149 does not require that all the five persons must
be identified. Non-identification of some of the persons where presence of more than five persons is
established does not in any way affect applicability of Section 149 of Indian Penal Code.
In State of Karnataka v. Chikkahottappa alias Varade Gowda and others, 5 it was observed
that Section 149 of IP. Code consists of two parts. The first part of the section means that the
offence to be committed in prosecution of the common object must be one which is committed with
a view to accomplish the common object. In order that the offence may fall under the first part, the
offence must be connected immediately with the common object of the unlawful assembly of which
the accused was member. Even if the offence committed is not in direct prosecution of the common
object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such
as the members knew was likely to be committed and this is what is required by the second part of
the Section.
The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case
1. 2003 Cri. L.J. 817 (S.C).
2. 2008 I Cri. L.J. 696 (S.C).
3. 2004 Cri. L.J. 635 (S.C).
4. 2004 Cri. L.J. 635 (S.C).
5. (2008) 3 Cri. L.J. 3495 (S.C).
it would be an issue to be determined whether the offence committed falls within the first part or it
was an offence such as the members of the assembly knew to be likely to be committed in
prosecution of the common object and falls within the second part.
In this case the accused persons allegedly formed unlawful assembly and assaulted deceased
with machus, sticks etc. There were three injuries on head and most of them were deep incised
wounds of varying sizes. Additionally multiple fractures on base of occipital bone were noticed.
Intention of assailants as established by evidence of witnesses was to cause death of deceased and
not to cause grievous injury. Accused persons were, therefore, held liable to be convicted under
Section 302 read with Section 149 instead of Sections 326 read with Section 149/148.
It was also pointed out in this case that it is not necessary under law that in all cases of
unlawful assembly, with an unlawful common object, same must be translated into action or be
successful. Under the explanation to Section 141, an assembly which was not unlawful when it
assembled may subsequently become unlawful. It is not necessary that the intention or the purpose
which is necessary to render an assembly an unlawful one comes into existence at the outset. The
time of forming an unlawful intent is not material. An assembly which, at its commencement, or
even for sometime thereafter, is lawful, may subsequently become unlawful. In other words it can
develop during the course of incident at the spot co-instante.
It was also made clear that the expression in prosecution of 'common object' as appearing in
Section 149 have to be strictly construed as equivalent "in order to attain the common object". It
must be immediately connected with common object by virtue of nature of object.
The word 'object' means the purpose or design and in order to make it common, it must be
shared by all. It may be formed at any stage by all or a few members. It may be modified or altered
or abandoned at any stage. Common object may be formed by express agreement after mutual
consultation. But that is by no means necessary. The effect of Section 149 may be different on
different members of same assembly.
It was also made clear that common object is determined keeping in view nature of assembly,
arms carried by members, and behaviour of members at or near scene of incident. 'Common object'
is different from 'common intention'. It does not require a prior concert and a common meeting of
minds before attack. In Section 149 the emphasis is on common object and not on common
intention.
Further, mere presence in unlawful assembly cannot render a person liable unless he was
actuated by common object. If common object of unlawful assembly is not proved, accused cannot
be convicted. In order to convict a person under Section 149 I.P.C. only membership of unlawful
assembly is not enough, the person should have understood that assembly was unlawful and was
likely to commit any of the acts which fall within purview of Section 141.'
In prosecution of the common object.—"In prosecution of the common object" do not
mean "during the prosecution of the common object of the assembly". The words "in prosecution of
the common object" show that the offence committed was immediately connected with the common
1. State of Kamataka v. Chikkahottappa alias Varacle Gowda and others, (2008) 3 Cri. L.J. 3495 (S.C).
object of the unlawful assembly, of which the accused were members. The act must be such as have
been done with a view to accomplish the common object attributed to the members of the unlawful
assembly. The words "in prosecution of the common object" have to be strictly construed as
equivalent to "in order to attain common object."1
In order to bring a case within this section it must be proved that the act was done with a
view to accomplish the common object of the unlawful assembly or the act though not one done in
prosecution of the common object of the unlawful assembly was one which the accused knew
would be likely to be committed in prosecution of the common object. 2 This section is never
intended to punish a member of an unlawful assembly for any offence committed by any member of
it. What is required to punish any member for offence committed by any other member of the
assembly is that it must have been committed in prosecution of the common object of the assembly
and that the person sought to be punished must have been a member of the assembly at the time of
commission of that offence. Accordingly, it must be proved in each case that the person concerned
was not only a member of the unlawful assembly at some stage, but shared the common object of
the assembly at all the crucial stages. 3 The sharing of common object would, however, not
necessarily require the member present and sharing the object to engage himself in doing an overt
act.4 Therefore, this section is inapplicable in a case of sudden mutual fight between two parties.
Constructive criminal liability in such cases cannot be imposed because of the lack of a common
object. The individual acts cannot be grouped together in such cases and the individuals are to be
held responsible for their individual acts.5
It was held in M/s. Siyaram and others v. State of M.P.? that the expression 'in prosecution of
common object' have to be strictly construed as equivalent to 'in order to attain the common object'.
It may be gathered from the course of conduct adopted by members of assembly.
It was observed in M/s. Siyaram and others v. State of M.P.,7 that common object is different
from a 'common intention'. It does not require a prior concert and a common meeting of minds
before the attack.
It was held in Madan Singh v. State of Bihar? that mere presence in an unlawful assembly
cannot render a person liable unless there was a common object and he shared the same or was
actuated by that common object and that object is one of those set out in Section 141 of I.P.C.
Where common object of an unlawful assembly is not proved, the accused persons cannot be
convicted with the help of section 149. The crucial question to determine is whether the assembly
consisted of five or more persons and whether the said persons entertained one or more of the
common objects as specified in Section 141 of I.P.C. It cannot be laid down as general proposition
of law that unless the commission of an overt act is proved against a person, who is alleged to be a
member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing
required is that he should have understood that the assembly was unlawful and was likely to commit
1. Jit Singh, (1959) Punj. 50.

2. Mizaji Lai, A.I.R. 1957 S.C. 572.
3. Musaklian v. State o f Maharashtra, 1976 Cri. L.J. 1987.
4. Sita Ram Pandey v. State of Bihar, 1976 Cri. L.J. 800.
5. Paran v. State of Rajasthan, 1976 Cri. L.J. 674.
6. (2009) 2 Cri. L.J. 2071 (S.C).
7. (2009) 2 Cri. L.J. 2071 (S.C).
8. 2004 Cri. L.J. 2862 (S.C).
any of the acts which fall within the purview of Section 141. The word "object" means the purpose
or design and, in order to make it "common" it must be shared by all. In other words, the object
should be common to the persons, who compose the assembly, that is to say, they should all be
aware of it and concur in it. A common object may be formed by express agreement after mutual
consultation, but that is by no means always necessary. It may be formed at any stage by all or a
few members of the assembly and the other members may just join and adopt it, once formed it
need not continue to be the same. It may be modified or altered or abandoned at any stage. The
expression "in prosecution of the common objects" as appearing in Section 149 have to be strictly
construed as equivalent to "in order to attain the common object", it must be immediately connected
with the common object by virtue of the nature of the objects. There must be community of object
and the object may exist only upto a particular stage and not thereafter. What the common object of
the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be
determined, keeping in view the nature of the assembly, arms carried by the members, and the
behaviour of the members at or near the scene of the incident. It is not necessary under law that in
all cases of unlawful assembly, with an unlawful common object, the same must be translated into
action or be successful. Under the explanation to Section 141, an assembly which was not unlawful
when it assembled, may subsequently become unlawful. It is not necessary that the intention or the
purpose, which is necessary to render an assembly as unlawful one comes into existence at the
outset. The time of forming an unlawful assembly is not material. An assembly which, at its
commencement or even for sometime thereafter, is lawful, may subsequently become unlawful. In
other words it can develop during the course of incident at the spot co-instante.
In Mangal Singh and others v. State of Bihar,1 the incident happened because of land dispute.
Accused party fired at the deceased party after exchange of words. Many members except two of
accused party were armed with fire arms. Those two members who were unarmed had not
committed any overt act. Eye-witnesses did not say that any exhortation was given by them.
Therefore these two cannot be said to have shared common object of assembly and as such they
cannot be convicted. The Supreme Court held the conviction of other members of the accused party
proper.
In Amjad Ali v. State of Assam,2 on 3-8-1989 at about 4 p.m. when three persons namely,
Tara Mia, Saket Ali and Owaz Khan were fishing in the Dhameswari Beel, the accused 26 in
number armed with sticks, spears and other deadly weapons attacked those persons inflicting
serious injuries resulting in their death and thereafter dragged the dead bodies and threw them in the
river. At the time of occurrence, hue and cry was also said to have been raised attracting crowd,
which included Manowara Begum and Hussain Mia. The accused attacked even these two and
caused injuries on their person. In the FIR twenty-four persons were named and the others were not
1. 2005 Cri. L. J. 3755 (S.C).

2. 2003 Cri. L.J. 3545 (S.C).
named. One of them died during pendency of trial. In all eleven witnesses were examined by the
prosecution.
There were faction ridden groups over exercise of right to fish. The eye witnesses were from around
that place of occurrence. Dead bodies of two deceased were recovered after 2/3 days and that of the
third one was not recovered.
It was held that it is incorrect to claim that prior formation of an unlawful assembly with a
common object is a must and should have been found as a condition precedent before roping the
accused within the fold of section 149 Indian Penal Code. No doubt the offence committed must be
shown to be immediately connected with the common object, but whether they have the common
object to cause the murder in a given case would depend and can rightly he decided on the basis of
any proved rivalry between two factions, the nature of weapons used, the manner of attack as well
as all surrounding circumstances. Common object has always been considered to be different from
common intention and that it does not require prior concert and common meeting of minds before
the attack. Common object could develop eo instanti and being a question of fact it can always be
inferred and deduced from the facts and circumstances projected and proved in a given case.
In the present case the assailants formed an unlawful assembly and their common object was
to kill the three deceased because of dispute relating to fishing. In any case, the common object
must have developed co instante, i.e., on the spot.1
It was held by the Supreme Court in Munna Chanda v. State of Assam,1 that common object
is different from common intention. In case of common object prior concert is not required.
Common object can develop on spur of the moment.
Members knew to be likely.—The second part relates to a situation where the members of
the assembly knew that the offence is likely to be committed in prosecution of the common object.
A thing is likely to happen only when it will probably happen or may very well happen. 3 The word
'knew' indicates a state of mind at the time of commission of an offence and not later. 4 Knowledge
must be proved.5 The word "likely" means some clear evidence that the unlawful assembly had such
a knowledge/' The prosecution must prove that the accused not only knew that the offence was
likely to be committed but also that it was likely to be committed in prosecution of the common
object of the assembly.7
In K.C. Mathew? people gathered at dead of night armed with crackers, choppers and sticks
to rescue persons who were guarded by armed police. It was held that they must have known that
murder will be committed and a conviction for murder-cum-rioting was justified.
It was held in Gangadhar Behera v. State of Orissa,9 that the expression-'in prosecution of
common object' as appearing in section 149 has to be strictly construed as equivalent to 'in order to
attain the common object'. It must be immediately connected with the common object by virtue of
nature of the object.
1. Amjad Ali v. State of Assam, 2003 Cri. L.J. 3545 (S.C).
2. 2006 Cri. L.J. 1632 (S.C).
3. Ram Anjore, A.I.R. 1975 S.C. 185.
4. Sindu Gope, A.I.R. 1946 Pat. 84.
5. Hardeo Singh, A.I.R. 1920 Pat. 795.
6. Maiyadin, 1973 Cri. L.J. 1203.
7. Mohammed, A.I.R. 1946 Lah. 106.
8. A.I.R. 1956 S.C. 241.
9. 2003 Cri. L.J. 41 (S.C).
There must be community of object- and the object may exist only upto a particular stage and not
thereafter.
It was further held that section 149, Indian Penal Code consists of two parts. The first part of
section means that the offence to be committed in prosecution of the common object must be one
which is committed with a view to accomplish the common object. In order that the offence may
fall within the first part, the offence must be connected immediately with the common object of the
unlawful assembly of which the accused was a member. Even if the offence committed is not in
direct prosecution of the common object of the assembly, it may yet fall under section 141 if it can
be held that the offence was such as members knew was likely to be committed.
It was also made clear that though no hard and fast rule can be laid down under the
circumstances from which the common object can be called out, it may reasonably be collected
from the nature of assembly, arms it carries and behaviour at or before or after the scene of incident.
The word 'knew' used in the second branch of the section implies something more than a possibility
and it cannot be made to bear the sense of 'might have been known', positive knowledge is
necessary.
It was held in M/s. Siyaram and others v. State of M.P.J that in order to hold a person liable
under Section 149 IPC a person alleged to be member of unlawful assembly should have
understood that assembly was unlawful and was likely to commit any act. Mere presence in an
unlawful assembly cannot render a person liable unless there was a common object and he was
actuated by that common object. The word 'common object' under this section means the purpose or
design. In order to make it common, it must be shared by all. Unlawful assembly may be formed at
any stage by all or a few members of the assembly and other members may join and adopt it.
Members of an unlawful assembly may have community of object upto a certain point beyond
which they may differ in their objects.
It was also pointed out that it is not necessary that intention or purpose which is necessary to
render an assembly an unlawful one comes into existence at outset. Time of forming an unlawful
intent is not material.
Five or more persons.—For the application of this section it is essential to prove that there
were at least five persons sharing the common object. The presence of five or more persons must be
unquestionably proved although it may happen that some of them are unidentifiable or that their
identity was doubtful. In such cases even less than five persons may be convicted. 2 But if it is
doubtful 'that there were at least five persons no conviction is possible under this section. Once it is
shown that an offence has been committed by some members of an unlawful assembly in
prosecution of the common object then whether the principal offender has been convicted for that
'offence' or not, the other members may be punished provided they are found to have had the
necessary intention or knowledge.
Cases.—in Bharwad Mepa v. State of Bombay? twelve named persons were charged with
having formed unlawful assembly with the common object of committing the murder of three
persons. Out of twelve only four were convicted by the High Court and therefore an appeal was
1. (2009) 2 Cri. L.J. 2071 (S.C).

2. Dalip Singh, A.I.R. 1954 S.C. 364.
3. (1960) 2 S.C.R. 172.
made to the Supreme Court, among others, on the ground that conviction of less than five cannot be
sustained under this section. In this case the High Court has reached to the conclusion that though
the number of persons composing the assembly was definitely five or more the identity of all of
them was not established and therefore less than five persons were convicted. The Supreme Court
held that conviction of four only by the High Court in such circumstances was maintainable.
However in Ramaswami v. State of Tamil Nadu,1 the six accused persons could not be considered
confederates in the common object because three of them had been acquitted by trial court.
The above principle has been reiterated by the Supreme Court in Kartar Singh v. State of
Punjab.2 In this case, the Supreme Court observed that, when the number of assailants is definite
and all of them are named and the number of persons found to be proved to have taken part in the
incident is less than five, then it cannot be held that the assailants' party, must have consisted of five
or more persons. The fact that certain persons are named in the charge as composing of an unlawful
assembly, excludes the possibility of other persons to be in the said assembly especially when there
is no occasion to think that the witnesses who named all the accused could have committed mistake
in recognising the assailants. But this does not mean that whenever persons named in the charge are
alleged to constitute an unlawful assembly it is legally not permissible to the prosecution to prove
during the trial that persons in addition to those named in the charge were also members of the said
assembly, In other words, where persons named in the charge are alleged to compose an unlawful
assembly, the court on facts would be slow to come to the conclusion that persons other than those
named in the charge were members of the said assembly. If, however, it appears on evidence that
persons not so named in the charge were members of the unlawful assembly, there is no legal bar
which prevents the courts from reaching that conclusion. In Dharampal v. State of U.P? the
Supreme Court held that if the court holds that the assailants were actually five in number but there
could be doubt as to the identity of two of the alleged assailants and therefore acquits two of them,
the others will not get the benefit of doubt about the identity of the two accused so long as there a
firm finding based on good evidence and sound reasoning that the participants were five or more in
number.
In Kallu v. State of Madhya Pradesh? 27 persons were tried for assaulting complainant. They
were carrying various weapons with the common object of causing injury. It was clear from
evidence that more than five persons took part in the incident. But only four of them were found
guilty and convicted. It was held that conviction of four only under Section 149 IPC does not mean
that there was no unlawful assembly. The mere fact that several accused were acquitted does not
enable the four who are found guilty to contend that Section 149 IPC is inapplicable.
In Jadu Sahani v. State of Bihar? prior to the occurrence there was no friction between the
two parties. The accused persons came to the spot duly armed though not with a purpose of causing
1. 1976 Cri. L.J. 1563.
2. (1962) 2 S.C.R. 395.
3. A.I.R. 1975 S.C. 1917.
4. 2006 Cri. L.J. 799 (S.C).
5. 1999 Cri. L.J. 593 (S.C).
i
any injury to anybody but had, as is usual with villagers, carried weapons while out on a fishing
spot. They were objected to by complainant party resulting in exchange of heated words. It was held
that it cannot be conceived that the unlawful assembly which grew up spontaneously had the sole
object of causing murders but it can be ruled instantly that the common object of the assembly was
to cause assault on the complainant party. The degree and gravity of assault would have to be
guaged in this background. It then transpires that the sole fatal injury on Ram Udgar Singh
deceased, was attributed to Laxmi Yadav by means of an arrow and the sole injury on Biku Singh
deceased was attributed to ladu Sahani, again by means of an arrow. The respective arrows were
detected on post-mortem examination of both the deceased. Therefore it logically follows that
Laxmi Yadav and Jadu Sahani were individually guilty for offence under section 302, I.RC. each
and they had rightly been convicted for offence of murder though with the aid of the section 149,
I.RC. They are individually guilty for offence under section 302. and not read with section 149.
Remaining accused did not touch deceased at all. Therefore they were acquitted of charge under
section 307/149, Indian Penal Code.
In Bharosi v. State of M.P.,1 about four months prior to the incident some quarrel had taken
place between the deceased Baburam and the appellant No. 4 Dataram in relation to raising of
boundary wall. On 12-4-1983 at about 7 p.m. the deceased accompanied by Rarnhet had gone to
Vidyaram (PW-8) to engage some labourers for cutting crop and while returning from the house of
Vidyaram, when the deceased came near the chabutara of appellant No. 4 he shouted to the
remaining accused who were there that the deceased was their enemy and he should not be allowed
to go and kill him. The appellant No. 6 Ramjilal assaulted the deceased with the lathi on his head.
When he fell down on the ground all the appellants assaulted him. In spite of Ramhet intervening,
the appellants did not stop assaulting. When they found that the deceased had died the appellants
dragged his body from the spot to place near Tiwaria of appellant No. 1 Bharosi. Thereafter they
ran away. Bachchulal (PW-10) brother of deceased lodged first information report. Vidyaram (PW-
8) and Kalicharan (PW-13) were eye witnesses of the incident.
The trial court acquitted them but the High Court reversed the order of acquittal and held
them guilty under section 302/149, Indian Penal Code.
The Supreme Court, in appeal, held that it is clear from the evidence that it is appellant No. 6
who hit the deceased with lathi on his head and on that account the deceased died. The doctor has
also categorically opined that the cause of death of the deceased was due to this head injury. There
is nothing in evidence to indicate that the deceased was to go to the place of incident on the date of
occurrence at the given time. The appelants even as per the prosecution version had lathis in their
hands. Having regard to the injuries other than the head injury and the parts of the body on which
the injuries were caused, it could not be said that the appellants 1 to 5 had cither intention or
knowledge to kill the deceased. Appellants 3 and 6 are the sons of appellant no. 1 and appellant no.
2 is the brother of appellant no. 1. Appellants 4 and 5 belong to a different family. The appellants 1
to 5 could be held guilty for an offence under Section 147 having regard to their individual acts and
not for an offence under Section 302, Indian Penal Code as there was no common object to attract
Section 149, Indian Penal Code. But appellant no. 6 Ramji Lai was held guilty under Section 302,
1. 2002 Cri. L.J. 4322 (S.C).
Indian Penal Code.
In a case a large body of men belonging to one faction waylaid another body of men
belonging to a second faction, and a fight ensued in the course of which a member of the first
faction was wounded and retired to the side of a road, taking no further part in the fight. After his
retirement a member of the second faction was killed. In this case taking that the number of men
was five or more it can be said that the wounded man was not liable for murder because he was not
a member of the group when a man was killed as he retired hurt.
A, B, C, D and E enter the house of Z at night in order to beat him with lathis. On being
stopped by Z's servant, A struck him a blow on the head, B stole a gold necklace from Z's almirah,
C alone gave some lathi blows to Z. Here A, B, C, D and E would all be the guilty under Section
149 for causing injuries to Z and his servant because they being five in number formed an unlawful
assembly as their object was to commit an offence i.e. to beat Z, and the offence was committed in
prosecution of their common object. But as far as the stealing of gold necklace is concerned only by
B would be liable for that because the offence of stealing was committed by B neither in
prosecution of their common object nor was such as other members could be expected to have
known to be committed.
In Bhimrao v. State of Maharashtra,1 the appellant/accused along with some others formed
an unlawful assembly with a common object of committing the murder of Prabhakar Gawande.
With that object they went to his house. Some members of the unlawful assembly entered the house
of Prabhakar and assaulted him causing grievous injuries, consequent to which he died about six
days later. Original common object of accused persons was only to assault Prabhakar but some of
them after entering into his house developed different common object to cause grievous injuries.
Accused and some others were only standing outside the house and could not know what transpired
inside the house. It was held that the act of those members of original unlawful assembly who
entered the house cannot be attributed to the members who stood outside. Therefore, the appellants
will be liable to be punished for sharing the original common object which was only to assault the
deceased. They will be liable to be convicted under section 352 read with section 149 and not under
section 326 read with section 149.
In Racham Reddi Chenna Reddy v. State of Andhra Pradesh,2 about six months prior to the
date of occurrence there was some dispute between the deceased and the accused relating to the
passage to the house of accused Nos. 1 to 3. The two deceased persons who were brothers of PW-1
naturally supported PW-1. Again a week before occurrence also there had been an altercation
between the two factions on account of some theft. On the date of occurrence-PW-1 went to the
house of his brother who is one of the deceased and both of them went together to their field. While
they were returning, the accused persons ten in number armed with sickle, battle axes, daggers and
sticks, mercilessly assaulted the deceased. Accused No. 1 first hacked the deceased with a sickle
and then others attacked with their weapons. PW-1 started running away to save his life. He was
chased but could not be caught. The accused persons then brutally assaulted the second deceased
who was returning with PW-3. It was held that the manner in which the accused persons appeared at
1. 2003 Cri. L.J. 1204 (S.C).
2. 1999 Cri. L.J. 1445 (S.C).
the scene of occurrence with lethal weapons in their hands and mercilessly assaulted the deceased
after surrounding him clearly exhibits their common object to kill the deceased. Deceased No. 2
was also killed almost in identical situation and circumstances. Therefore there was no error in
convicting the accused under section 302/149, Indian Penal Code.
In Rajendra Shantaram Todankar v. State of Maharashtra,1 one Mukesh Puran and Ashok
Gaurav were residing in two adjoining localities of Bombay and were ring leaders of their
respective gangs involved in various illegal activities. Five of the eight accused persons were armed
severally with deadly weapons. They initially assaulted the deceased when he was standing on the
ground floor of a multistoried building. After assaulting they chased him by following him on the
stair case leading to fourth floor till the deceased fell in a pool of blood. It was held that in this case
inference can be drawn that accused persons were members of unlawful assembly formed with the
common object of fatally injuring deceased so as to cause his death. Therefore, their conviction
under section 302 read with section 149 of Indian Penal Code is sustainable. It was also observed
that definite and specific finding as to which particular accused caused fatal injury need not be
recorded in such a situation.
The facts of Hardev Singh v. Harbhej Singh,2 are that the appellant, Harbhej Singh (A-l),
Gurbhej Singh (A-2), Amrik Singh, (A-3) and Gurmej Singh (A-4) were real brothers. So also
1. 2003 Cri. L.J. 1277 (S.C).

2. 1997 Cri. L.J. 727 (S.C).
Sohan Singh (A-5) and Mohan Singh (A-6) were also real brothers and Harbhej Singh and Sohan
Singh are cousins. Similarly, Baldev Singh (since deceased) was the younger brother of Hardev
Singh (PW-2) and Jaswant Singh (PW-1). It is alleged that Hardev Singh was doing some
construction work at his house. On 23rd May, 1985 at about 7.30 p.m. when Hardev Singh was
sitting in his house alongwith his father and younger brother Jaswant Singh, one Suba Singh (PW-3)
and his father, Harbhajan Singh (since deceased) came to his house with a view to help him in the
construction work. At that time all the six accused persons armed with deadly weapons reached the
house of Hardev Singh. Harbhej Singh was armed with double barrel gun, Gurbhej Singh with a
Gandhaji, Sohan Singh with a Kirpan and Amrik Singh, Gurmej Singh and Mohan Singh were
carrying gandasa with them. They trespassed into the house of Hardev Singh and a lalkara was
given to teach a lesson to him and others for causing injuries to Harbhej Singh. Immediately all
those accused persons started assaulting Suba Singh (PW-3) on his chest. In the meantime Harbhej
Singh fired a shot from his gun hitting Harbhajan Singh who fell down. Thereafter Amrik Singh,
Gurmej Singh and Mohan Singh also inflicted blows with gandasa on his shoulder, right thigh and
right ankle respectively. Harbhej Singh fired one more shot from his gun but it did not hit any body.
On an alarm being raised the accused persons fled away. They also gave a lalkara to finish Baldev
Singh. Apprehending danger to his life Hardev Singh and Jaswant Singh ran towards the field
where Baldev Singh had gone to take fodder to inform him about the incident and to caution him. In
the meantime Baldev
Singh passed through the house of Harbhej Singh with a tractor-troliy and he was
surrounded by the accused persons. Baldev Singh tried to escape but in the
meantime Sohan Singh gave a kirpan blow chopping of his right arm. He fell upon
fodder. Harbhej Singh raised an alarm whereupon Amrik Singh chopped of his
leg with gandasa. Gurmej Singh gave two or three blows with a gandasa on his left
arm. Mohan Singh also gave a blow on his chest. Due to these murderous assaults
Baldev Singh fell in the trolly with bleeding injuries. The three injured were then
taken to hospital but two of them, namely, Harbhajan Singh and Baldev Singh
succumbed to their injuries on way to hospital. The trial court convicted Harbhej
Singh, Amrik Singh, Gurmej Singh and Sohan Singh for an offence under Section
302 read with Section 34 but acquitted Gurbhej Singh and Mohan Singh on the
ground that the role attributed to both of them was very minor and further the
simple injuries alleged to have been caused by them could have been caused by
other co-accused. The trial court observed that no specific role was attributed to
these two accused and also that there was no material on record to prove that they
caused any serious injuries to the two victims. It was held by the Supreme Court
that this finding is contrary to the evidence on record inasmuch as both were the
members of the unlawful assembly and did have the common object as it was
implicit in their action i.e., they were armed with deadly weapons; came along
with other accused and participated in the murderous assault on both the victims.
Therefore the order of acquittal of these two accused passed by the trial court and
on appeal affirmed by the High Court cannot be sustained in law. The High Court
was held to have erred in not holding both these accused guilty under Section 300
read with Section 149, IP. Code.1
In Mohd. Yakub v. State of Andhra Pradesh,1 the deceased and accused persons
were friends. The deceased and Mohd. Ghouse the accused No. 1 both had illicit
intimacy with a lady home guard whose brother is P.W. 1. This led to relations
between the deceased and accused no. 1 becoming strained. On 14-10-1993
shortly after midday PW 1, PW 2 and PW 4 and two others including the
deceased had gone to cinema. When they came out accused No. 1 dealt a blow on
the forehead of the deceased with an iron rod. The deceased started running away
for his life towards police club. Accused Nos. 2 to 8 who were differently armed
and were lying in wait chased the deceased and attacked him. The deceased was
assaulted even after he had fallen down. Two of the accused had caused incised
injuries on chest and abdomen of the deceased with knife. Injuries affected heart
and lung of the deceased and proved fatal.
It was held that from the facts and circumstances of the case it is clear that
the accused persons had formed an unlawful assembly, the members whereof
were armed with deadly weapons. The two accused appellants had aimed at vital
1. Hardev Singh v. Harbhej Singh, 1997 Cri. L.J. 727 (SC).

2. 2002 Cri. L.J. 3731 (S.C).
organs of the body of the deceased while inflicting injuries and injuries caused by
them have proved fatal. The attack by the accused persons was indiscriminate and
they were determined to kill the deceased. While inflicting injuries they chased
the deceased and did not allow him to escape and they continued to assault him
even after he had fallen on ground. In this view of the matter the two accused
appellants are liable to be convicted for murder under section 300 read with
section 349.
256 INDIAN PENAL CODE I S. 14?
In Tanaji Govind Misal v. State of Maharashtra? an open site of land (locally known as
Padik) along with babul trees standing thereon belonged to and was in possession of Sheshappa
Vithoba Misal PW-15 and his associates. Four of the accused A-l, A-3, A-5, and A-6 cut some
branches of those trees and left them there. After some days PW-15 and his associates removed
those branches from the Padik and brought them to another open site near the house of one Sida
Pondurang A-6 when asked PW-15 about removal of the branches of babul, the latter replied that
the trees belonged to them and he also questioned the right of A-6 to cut them. On the following
morning twentynine accused persons along with three others came to the place where branches were
stacked, armed with deadly weapons such as axe, spears, iron bars and sticks and started removing
them. On getting that information PW-15, his brothers and associates reached there and asked the
accused persons not to remove the branches. Immediately thereupon A-l inflicted an axe blow on
the head of Ganpati felling him down. When Vithoba went to the rescue of Ganpati A-2 inflicted an
axe blow on his head who instantly slumped down. All the accused persons then started assaulting
Ganpati, Vithoba and other members of the complainant party as a consequence whereof Ganpati
and Vithoba breathed their last on the spot, while Kashinath (PW-8), Sarja Rao (PW-12), Murlidhar
(PW-14), Sheshappa (PW-15) and Jalinder (PW-17) sustained injuries. During the incident accused
A-3 to A-7 also received injuries. It was held that the evidence showed that the motive of accused
party was to remove babul branches from field at any cost and cause such injury as may be
necessary for that purpose. Some of the accused started assault immediately after reaching the spot.
Other persons cannot be conclusively said to have known that murders were likely to be committed
in prosecution of their common object so as to attract the second part of section 149. Such accused
would be liable to be convicted under section 326/149 and not under section 302/149, IP. Code. But
accused who acted beyond common object of unlawful assembly, however were liable to be
convicted under section 302 read with section 34, Indian Penal Code.
In Bhagwan Singh v. State of M.P.,2 the accused persons were on inimical terms with
complainant party and they came on the place of occurrence with some deadly weapons and
attacked the complainant party in which three persons were killed: It was held that generally no
direct evidence is available regarding the existence of common object which, in each case, has to be
ascertained from the attending facts and circumstances. When a concerted attack is made on the
victim by a large number of persons armed with deadly weapons, it is often difficult to determine
the actual part played by each offender and easy to hold that such persons attacking the victim had
the common object for an offence which was known to be likely to be committed in prosecution of
such an object. It is true that mere innocent person, in an assembly of persons of being a by-stander
does not make such person a member of an unlawful assembly but where the persons forming the
assembly are shown to be having identical interest in pursuance of which some of them come armed
others though not armed would, under the normal circumstances, be deemed to be the members of
the unlawful assembly. In the present case the accused persons were held to share common object.
In Haricharan v. State of Rajasthan? five accused persons armed with weapons stopped the bus at
about 1.00 p.m., put the gun on the chest of the driver Satpal PW-6 and threatened him to shoot if he
1. 1998 Cri. L.J. 340 (S.C).
2. 2002 Cri. L.J. 2024 (S.C).
3. 1998 Cri. L.J. 398 (S.C).
drove the bus ahead. They asked the passengers to get down. They caught hold of conductor Ram
Babu and tried to drag him out. Appellant Ramno had fired two shots at Ram babu and other
accused had assaulted him with other weapons. They had run away together. The trial court
convicted four of the accused persons for committing murder of Ram Babu as they formed an
unlawful assembly and committed murder in prosecution of their common object. It was held by the
Supreme Court that the court below relied on the evidence of Kedarnath a passenger of the bus and
Satpal the driver of the bus. In view of the facts stated above the conviction of the accused under
section 302 read with section 149, I.RC. was held to be proper as the murder was committed by
accused persons forming the unlawful assembly in prosecution of their common object.
150. Hiring, or conniving at hiring of persons to join unlawful assembly.—Whoever hires
or engages, or employs, or promotes, or connives at the hiring, engagement or employment of
any person to join or become a member of any unlawful assembly, shall be punishable as a
member of such unlawful assembly, and for any offence which may be committed by any such
person as a member of such unlawful assembly in pursuance of such hiring, engagement or
employment, in the same manner as if he had been a member of such unlawful assembly, or
himself had committed such offence.
COMMENT
Ingredients.—The following are ingredients of this offence :—
(1) The accused must have done one of the following acts :
(a) he hired or engaged or employed a person to join the unlawful assembly,
or
(b) he promoted or connived at the hiring, engagement or employment of
such person to join or become a member of the unlawful assembly.
257 INDIAN PENAL CODE I S. 14?
(2) The persons hired must have committed an offence in pursuance
of such hiring, engagement, or employment.
This section is intended to punish the persons who are neither abettors nor participants but
who nevertheless assist in bringing an unlawful assembly into existence. The hirer will be
punishable for any offence committed as if he were a member of the unlawful assembly and as if he
had committed the offence.1
151. Knowingly joining or continuing in assembly of five or more persons after it has
been commanded to disperse.—Whoever knowingly joins or continues in any assembly of five
or more persons likely to cause a disturbance of the public peace, after such assembly has
been lawfully commanded to disperse, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine, or with both.
Explanation.—If the assembly is an unlawful assembly within the meaning of section 141, the
offender will be punishable under section 145.
COMMENT
For the application of this section the assembly of five or more persons need not be an
unlawful assembly but if such assembly is likely to cause a disturbance of the public peace, then
joining or continuing in such assembly after it has been commanded to disperse is punishable.
However, such joining or continuing must be with the knowledge that it is likely to cause a
disturbance of the public peace and that it has also been commanded ta disperse.
152. Assaulting or obstructing public servant when suppressing riot, etc.—Whoever
assaults or threatens to assault, or obstructs or attempts to obstruct, any public servant in the
1. Silajit Mahto, I.L.R. 36 Cal. 865.

discharge of his duty as such public servant, in endeavouring to disperse an unlawful assembly, or to
suppress a riot or affray, or uses, or threatens or attempts to use criminal force to such public servant,
shall be punished with imprisonment of either description for a term which may extend to three years, or
with fine, or with both.
COMMENT
This section punishes persons who assault or obstruct any public servant endeavouring to
disperse an unlawful assembly. It is intended to prevent the use of force on a public servant in order
to prevent him from discharging his duties. The following are the essentials of this section :—
(1) There must exist an unlawful assembly.
(2) An endeavour to disperse such assembly is made.
(3) The person who endeavours to disperse must be a public servant.
(4) He must so endeavour in the discharge of his duties as a public servant.
(5) The accused must do one of the following acts against such public servant.
(i) he must assault or attempt to assault, or
(ii) he must obstruct or threaten to obstruct, or
(iii) he must use or attempt to use criminal force.
153. Wantonly giving provocation with intent to cause riot—if rioting be committed—if not committed.
—Whoever malignantly, or wantonly, by doing anything which is illegal, give provocation to any person
intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed
shall, if the offence of rioting be committed in consequence of such provocation, be punished with
imprisonment of either description for a term which may extend to one year, or with fine or with both ;
and if the offence of rioting be not committed, with imprisonment of either description for a term which
may extend to six months, or with fine, or with both.
COMMENT
(1) The accused did an act which was illegal.
(2) He caused provocation by such illegal act.
(3) He did the act malignantly or wantonly.
(4) He did the act intending or knowing it to be likely that such provocation may
cause a riot to be committed.
(5) Such riot was committed in consequence of such provocation. Malignantly.—
Malignantly means maliciously.1 'Malignant' means virulent
enmity. Therefore, malignantly means in a manner virulently inimical. It implies disposition bent on
evil or an unlawful act done intentionally without just cause or excuse. 2 It means extreme
malevolence or violently hostile or harmful.
Wantonly.—'Wantonly' means recklessly, thoughtlessly, without regard for light or
consequences.3 it implies a reckless or mischievous disposition. A man may do a thing wantonly
when he has no reason to do it, but he does it because he takes pleasure in doing though he knows
that its consequences to others may be serious.
Cases.—In Indra Singh? the accused unfastened the string of the National flag after flag-
hoisting ceremony and tried to trample on it. It was held that the accused was guilty under this
section as the act of the accused was deliberately insulting to the flag and thereby the accused
intended to wound the feelings and sentiments of the other persons present. In Abdullah,1 the
accused sacrificed a cow in an open place exposed to the view of the public. It was an act done
1. Per Ranade J. in Kahanji, I.L.R. (1893) 18 Bom. 758 at p. 775.
2. Bromage v. Prosser, (1825) 4 B. & C. 247.
3. Kari v. State, A.I.R. 1952 Cal. 138.
4. A.I.R. 1962 M.P. 292.
recklessly or thoughtlessly without regard to the sentiments of those who do not approve of such an
act. It is no doubt a wanton act but it is not an offence under this section, because such killing cannot
be held to be illegal in the absence of any provision of law which prohibits the killing of a cow.
In Vinod Hansraj Goyal v. State of Maharashtra? the allegation against the author of the
book was that one passage from his book had hurt sentiments of people. It was found that author
was a serious and intense scholar and book was found by him worth dedication to his mother. It was
held that in order to justify conviction under Sections 153 and 153-A of I.P.C. intention to cause
disorder or incite people to violence and creating disharmony in society is a sine qua non. Therefore
in view of facts of the case the author, printer ad publisher of book cannot be proceeded for offences
under Sections 153 and 153-A of the Indian Penal Code.
153-A. Promoting enmity between different groups on grounds of religion, race, place of birth,
residence, language, etc. and doing acts prejudicial to maintenance of harmony.—(1) Whoever—
(a) by words, either spoken or written, or by signs or by visible representations or
otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, disharmony or feelings of enmity,
hatred or ill-will between different religious, racial, language or regional groups or castes or
communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different
religious, racial, language or regional groups or castes or communities, and which disturbs or is
likely to disturb the public tranquillity, or]
(c) organizes any exercise, movement, drill or other similar activity intending that
the participants in such activity shall use or be trained to use criminal force or violence
or knowing it to be likely that the participants in such activity will use or be trained
to use criminal force or violence, or participates in such activity intending to use or be
trained to use criminal force or violence or knowing it to be likely that the participants
in such activity will use or be trained to use criminal force or violence, against any
religious, racial, language or regional group or caste or community and such activity for
any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity
amongst members of such religious, racial, language or regional group or caste or
community,
shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Offence committed in place of worship, etc.—(2) Whoever commits an offence specified in sub-
section (1) in any place of worship or in any assembly engaged in the performance of religious worship or
religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also
be liable to fine.
COMMENT
The object of this section is to prevent the various classes from coming into conflict by
mutual abuse and recrimination. It aims to punish those who either attempt to promote or promote
class hatred or class enmity. Such an intention must be inferred from the nature of the words used
and their effect upon the class referred to as also from the State of feeling between the two
communities at the time of the act complained.3
Classes.—The word 'classes' has not been defined. Any definite and ascertainable class of subjects will come within the section, although the classes may not be
divided on racial or religious grounds.4 The term 'classes' connotes a well-defined and readily ascertainable group of subjects having some element of permanence or stability
and sufficiently numerous and widespread to be designated as a "class".1 Every group of persons cannot be designated as a class.2 A small and limited group of 'landlords' or
'zamindars' cannot constitute such a class.3 In Visliambhar Dayal Tripathi v. Emperor? the accused in the course of his speech compared the Taluqdars and the zamindars as a
1. 49 I.C. 776 (All).

2. 2007 III Cr. L.J. 2959 (S.C).
3. Satya Ranjan Bakshi, A.I.R. 1929 Cal. 309 at 314.
4. Vishambhar Dayal Tripathi v. Emperor, A.I.R. 1941 Oudh. 33 at 41.
class and the money lenders and die Government officials with tenants and stated that the Government Officials did not sympathise with their aims. He thus excited the
tenants to organise themselves as their raj was the coming in which the Taluqdars and zamindars will have no share and also that the Taluqdars have deceived and betrayed
the country into the hands of the British Government. His speech was held to have been covered by the section as it attempted to promote feeling of enmity or hatred between
different 'classes' of citizens.
Promotion of class hatred.—The chief ingredient of an offence under this section is the
intention to promote hatred or ill-will between the several classes. Such an intention must be
inferred form the nature of the words used and their effect upon the class referred to as also from the
state of feelings between the two communities at the time of the act complained of. 5 The means
employed are immaterial so long as the intention was to promote hatred and it was likely to produce
that effect. For instance, an attack upon the private life of a Saint or a Prophet of a community with
the object of producing that effect would be punishable under this section.6
There must either be an intention to promote feelings of hatred or such feelings should be
promoted in consequence of the words spoken or written. Both successful and unsuccessful attempts
to promote such feelings of enmity etc. are covered by this section. But mere tendency to promote
such feelings which fall short of attempt is not covered by the section.7
In Hernam Das? the Allahabad High Court held that it would be no offence if the author
adheres to the historical part of his narrative,-however unpalatable it may be to the members of the
other community, but i<" he uses language which shows malice and is bound to annoy the members
of the other community so as to degrade them in the eyes of the other classes, he is promoting
feeling of enmity and hatred. He would be liable both under this section and section 295-A of the
Code.
In Gopal? it was held that under this section it is not necessary to prove that as a result of the
objectionable matter enmity or hatred was in fact caused between the different classes. Intention to
promote enmity or hatred, apart from the writing itself, is not a necessary ingredient of the offence.
It is enough to show that the language of the writing is of a nature calculated to promote feelings of
enmity or haired, for a person must be presumed to intend the natural consequences of his act. If a
writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under this
section that the writing contains a truthful account of past events or is otherwise supported by good
authority. Adherence to the strict path of history is not by itself a complete defence to a charge under
this section.
It was held in Bilal Ahmad Kaloo v. State of Andhra Pradesh, that the common feature in
Section 153-A and Section 505(2) of the Indian Penal Code is promotion of feeling of enmity,
1. Maniben Liladhar Kara v. Emperor, A.I.R. 1933 Bom. 65 at 69.
2. Narayan Vasudeo Phadke, (1940) 42 Bom. L.R. 861.
3. Emperor v. Banomali Maharana. A.I.R. 1943 Pat. 382 at 385.
4. A.I.R. 1941 Oudh. 33.
5. Satya Ranjan Bakshi, A.I.R. 1929 Cal. 309 at 314.
6. Kali Charan, I.L.R. 49 All. 856.
7. Ram, A.I.R. 1924 Ker. 31.
8. (1957) 1 All. 528.
9. (1969) 72 Bom. L.R. 871.
10. 1997 Cri. LJ. 4091 (SC).
hatred or ill-will between different religious or racial or language or regional groups or castes and
communities. Therefore, it is necessary that at least two such groups or communities should be
involved. Merely inciting the feeling of one community or group without any reference to any other
community or group cannot attract either the two sections.
Proof of Intention.—In Shib Sharma v. Emperor? the accused had collected a number of
passages which might be perfectly right and harmless in their proper setting, but when disconnected
or detached might seem indecent and objectionable. It was held that the intention of the accused was
to ridicule the Prophet and his religion and to promote feelings of enmity or hatred between Hindus
and Mohammedans.
In order to ascertain the intention of the accused, the offending article must be read as a
whole and circumstances attending that publication must also be taken into account."
A fair criticism of the character of any two classes, intended to open their eyes to their own
follies, is not an offence, whatever the two affected classes may think. But such a criticism must be
sincere and not malicious, calculated to do good and not produce hatred. Here also the test is the
intention to be gathered as in other cases.3
Cases.—In Shiv Kumar Mishra v. State of U.P.,4 the accused was prosecuted under Section
153-A after publishing an article asking people to boycott the elections and extolling Naxalite
activities and, thereby, creating disharmony between the capitalists and the labour class as also
between those who believed in democratic form of government and those who believed in
totalitarian rule. It was held by the Allahabad High Court that Section 153-A was not applicable to
the facts of the case because in the impugned article the applicant had not said anything to promote
feeling of the enmity or hatred between different religious, racial or language groups or castes or
communities on grounds of religion, race, language, caste or community. The High Court observed :
—
"What views the applicant has expressed in the article, they are purely political in nature. One can,
however, feel tempted to say that this article has given a call to the poor masses to rebel against the
capitalist class, but such a call to rebel is not punishable under Section 153-A, I.P.C. 153-A A.
Punishment for knowingly carrying arms in any procession or organising or holding or taking part in any mass
drill or mass training with arms.—Whoever knowingly carries arms in any procession or organizes or holds or
takes part in any mass drill or mass training with arms in any public place in contravention of any public notice
or order issued or made under section 144-A of the Code of Criminal Procedure, 1973 shall be punished with
imprisonment for a term which may extend to six months and with tine which may extend to two thousand
rupees.
Explanation.—"Arms" means articles of any description designed or adapted as weapons for offence or
defence and includes fire arms, sharp edged weapons, lathis, dandas and sticks."
153-B. Imputations, assertions prejudicial to national integration.—(1) Whoever, by words either
spoken or written or by signs or by visible representations or otherwise,—
(a) makes or publishes any imputation that any class of persons cannot, by reason of their being
members of any religious, racial, language or regional group or caste or caste or community, bear true
faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and
integrity of India, or
(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason
of their being members of any religious, racial, language or regional group or caste or community, be
denied or deprived of their rights as citizens of India, or
_____________(c) makes or publishes any assertion, counsel, plea or appeal concerning the
1. A.I.R. 1941 Oudh 310.
2. Ghulam Sarwar, A.I.R. 1965 Pat. *393.
3. Joy Chandra Sarkar, I.L.R. 38 Cal. 214.
4. 1978 Cri. L.J. 701.
261
INDIAN PENAL CODE
obligation of any class of persons, by reason of their being members of any religious, racial, language or
regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to
cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons,
shall be punished with imprisonment which may extend to three years, or with fine, or with
both.
(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly
engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment
which may extend to five years and shall also be liable to fine.]
COMMENT
This section was added to supplement the existing provisions as contained in sections 153-A
and 295-A of the Code. The existing sections provide for dealing with objectionable activities of
individuals but this section makes provision for dealing effectively with an association which has
for its object objectionable activities. It seeks to curb the objectionable activities of such
associations.
It is couched in very wide language and punishes making or publishing of any imputation,
etc. against any class of persons, by words either spoken or written or by signs or by visible
representation or any other manner. The bona fides or intention of the master or publisher appear to
have no relevance while judging his liability under this section. In estimating the effect of a speech
or a pamphlet the court could look at it as a whole and not pay undue regard to any particular
sentence or phrase.'
154. Owner or occupier of land on which an unlawful assembly is held,—Whenever any
unlawful assembly or riot takes place, the owner of occupier of the land upon which such
unlawful assembly is held, or such riot is committed, and any person having or claiming an
interest in such land, shall be punishable with line not exceeding one thousand rupees, if he
or his agent or manager, knowing that such offence is being or has been committed or having
reason to believe it is likely to be committed, do not give the earliest notice thereof in his or
their power to the principal officer at the nearest police station, and do not in the case of his
or their having reason to believe that it was about to be committed, use all lawful means in
his or their power to prevent it, and, in the event of its taking place, do not use all lawful
means in his or their power to disperse or suppress the riot or unlawful assembly.
COMMENT
This section is an extension of the doctrine of respondent superior to criminal law. It makes
the master criminally liable for the act, or omission of his servant in certain cases. The liability of
the owner or occupier of the land does not depend upon his knowledge of the riot or of the acts or
intentions of his agent.2 They have been invested by law with certain duties of the police which they
are expected to discharge by virtue of their position as landholders. Their responsibility is declared
that as landholders they possess the power of preventing the gathering of men upon their land and to
suppress or disperse disorderly gatherings if they are so minded. Three classes of persons are
responsible under this section : (i) owner, (ii) occupier and (iii) persons having or claiming an
interest in land upon which an unlawful assembly or a riot takes place.
155. Liability of person for whose benefit riot is committed.—Whenever a riot is
committed for the benefit or on behalf of any person who is the owner or occupier of any
land respecting which such riot takes place or who claims any interest in such land, or in the
subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit
therefrom, such person shall be punishable with fine, if he or his agent or manager having
reasons to believe that such riot was likely to be committed or that the unlawful assembly by
which such riot was committed was likely to be held, shall not respectively use all lawful means
in his or their power to prevent such assembly cr riot from taking place, and for suppressing
and dispersing the same.
1. Vishambher Dayal Tripathi v. Emperor, A.I.R. 1941 Oudh 33 at 41.

2. Nripendra Bhusan Roy v. Govinda Bandhu Majumdar, A.I.R. 1924 Cal. 1018 at 1022.
COMMENT
Under section 154 the owner of land is punishable if a riot or unlawful assembly takes place
on his land. This section refers to the commission of riot only and not unlawful assembly. When riot
takes place in the interest of the owner or any person claiming interest in the land, this section
applies. Provisions for heavier punishment has been made under this section because riot not only
takes place on one's land but it takes place in his interest also. An offence under this section is not
complete unless the riot is actually committed.
156. Liability of agent or owner or occupier for whose benefit riot is
committed.—Whenever a riot is committed for the benefit or on behalf of any person who is
the owner or occupier of any land respecting which such riot takes place, or who claims any
interest in such land, or in the subject of any dispute which gave rise to the riot, or who has
accepted or derived any benefit therefrom,
the agent or manager of such person shall be punishable with fine, if such agent or manager,
having reason to believe that such riot was likely to be committed, or that the unlawful assembly by which
such riot was committed was likely to be held, shall not use all lawful means in his power to prevent such
riot or assembly from taking place and for suppressing and dispersing the same.
COMMENT
262
INDIAN PENAL CODE
This section makes punishable the agent or manager of the owner or occupier of land for any
offence for which such owner or occupier shall be liable under sections 154 and 155 of the Code.
However, the agent or manager shall be liable only when he has failed to use all lawful means in his
power to prevent such riot or assembly from taking place and for suppressing and dispersing the
same.
157. Harbouring persons hired for an unlawful assembly.—Whoever harbours, receives
or assembles, in any house or premises in his occupation or charge, or under his control any
persons knowing that such persons have been hired, engaged or employed, or are about to be
hired, engaged or employed, to join or become members of an unlawful assembly, shall be
punished with imprisonment of either description for a term which may extend to six months,
or with fine, or with both.
COMMENT
Section 150 makes the hiring of person to join unlawful assembly punishable; this section
deals with the harbouring, receiving or assembling of persons hired or likely to be hired for an
unlawful assembly. Knowledge on the part of harbourer that persons harboured have been hired or
are about to be hired to join unlawful assembly is essential.
158. Being hired to take part in an unlawful assembly or riot.—Whoever is engaged, or
hired, or offers or attempts to be hired or engaged, to do or assist in doing any of the acts
specified in section 141, shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine or with both,
or to go armed—and whoever, being so engaged or hired as aforesaid, goes armed, or engages or
offers to go armed, with any deadly weapon or with anything which is used as a weapon of offence is likely
to cause death, shall be punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.
COMMENT
This section makes it punishable to hire oneself out to assist in an unlawful assembly or
rioting it consists of two parts. Each part is separable according to the weapon possessed by the
hired person. If a hired person is armed with deadly weapons he deserves greater punishment.
159. Affray.—When two or more persons, by fighting in a public place, disturb the
public peace, they are said to "commit an affray".
COMMENT
The word 'affray' is derived from the french word 'affraier' which means
263
INDIAN PENAL CODE f S. 159
to terrify. In law it means a public offence to the terror of the people. The gist of the offence lies in
the terror it is likely to cause to the public. According to Blackstone, a fighting between two or more
persons in a public place to the terror of His Majesty's subjects is affray in English law.
Ingredients.—-The following are ingredients of this offence :
(i) Two or more persons must fight;
(ii) They must fight in a public place;
(iii) By their fighting they must disturb the public peace.
Two or more persons.—The offence of an affray requires at least two persons. The number
may be more.
Fighting in a public place.—To constitute an affray fighting must take place in a public place.
'Public place' is a place where the public go, no mattei* whether they have a right to go or not. If the
public resort to a place without let or hindrance, it is a public, though, strictly speaking, they may
trespassing.1 Whether a place is public or not does not necessarily depend on the right of public to go
to the place. Though, of course, a place to which the public can go as of right must be deemed to be
public place. The place where the public are in the habit of going is deemed to be public for the
purposes of this offence. For instance, a railway platform, 2 a theatre hall,3 an omnibus,4 a public
urinal,5 a goods yard of railway station,6 a market, a public ferry and a passenger train are all public
places. Many shows are exhibited to the public on private property, yet they are frequented by the
public. They are public places because people go there. 7 A public garden is not a public place at all
hours but it is a public when open to the public. Likewise, a court of law, a hospital, a church, a
mosque or a temple8 are all public places during the hours public have access to them. Therefore, the
nature of a place being private or public varies from time to time. The court has to consider whether
the place in question was at the time a place where the public undoubtedly were.9 Judging from this
test a railway platform when/no train is due except a goods train is not a public place.10
Some fight at public place is necessary to constitute the offence. Mere •-exchange of abusive,
threatening or hot words, however violent, without exchange of blows does not amount to fight. The
fighting means a quarrel accompanied by use of a little force. It connotes a contest or struggle for
mastery. When one side is aggressive and the other is passive, there is no fight. When members of
one party beat the members of another party and the latter do not retaliate, there is no fighting and
therefore, no affray.11
In Jagannath Sah,n two brothers were quarreling and abusing each other on a public road in a town and a large crowd gathered and the traffic was jammed but no
actual fight took place. It was held that no affray was committed in absence of actual fight.
In Babu Ram,1 two persons attacked and overpowered a third one who merely defended
1. Per Coleridge, CJ. in Wellard, 14 Q.B.D. 63 at 65.
2. Davis, (1857) 26 L.J. Ex. 393.
3. In re Muthuswami Iyer, A.I.R. 1937 Mad. 286.
4. Holmes, (1853) 3 C. & K. 360.
5. Harris, (1871) L.R.I.C.C. 282.
6. Cowosji, I.L.U. 26 Bom. 609 (KS4).
7. Per Grove, J., in Wellard, (1884) 14 Q.B.D. 63.
8. 2 Weir 71.
9. Per Coleridge, CJ., in Wellard, (1884) 14 Q.B.D. 63.
10. Madan Mohan, (1883) A.W.N. 197.
11. Jodhey v. State, A.I.R. 1952 All. 788.
12. (1937) O.W.N. 37. .
himself. It was held that they were guilty of this offence as there was a fighting in a public place
notwithstanding the fact that the third person only defended himself in the exercise of his right of
private defence.
The Allahabad University Union decides to celebrate its annual function and hires a private
hall for the purpose. The entry is through tickets which are distributed free of cost to members,
friends and others whom the organisers deem worthy of. Some tickets are also given to the Vice-
Chancellor to be distributed at his discretion. Tickets could not be obtained from any other channel.
About 20 persons constituting dance party gave the show in the hall. A number of youths including
the appellants created disturbance at the dance. Fight developed and some damage was done. They
were charged with others with "fighting and making an affray" in the hall. The charge of affray is
sustainable because the private hall was converted into a public place and by fighting in the hall they
have disturbed the public peace.
Disturb the public peace.—In order to constitute the offence of an affray, there must not only
be fighting in a public place but such fighting must also cause the disturbance of the public peace. 2
Fighting must cause a general alarm and disturbance. Merely causing of public inconvenience is not
264
INDIAN PENAL CODE f S. 159
enough.3 The familiar example, according to H.S. Gour, is a drunken brawl in the public stf&et where
two or more persons shout at and pull about one another.4
Distinction between affray and riot.—The two differ from each other in
the following respects :— '
(1) An affray cannot be committed in a private place; a riot may take place anywhere
i.e., both at a public and a private place.
(2) An affray can be committed by two or more persons, a riot can be committed by
at least five persons.
(3) Rioters are those who first constitute an unlawful assembly; an affrayer need not
be so.
Distinction between affray and assault.—The two are different in the following ways :—
(1) An affray must be committed in a public place; an assault may take place
anywhere.
(2) Affray is regarded as an offence against the public peace; an assault is an offence
against the person of an individual.
(3) An affray is nothing more than an assault committed in a public place and in a
conspicuous manner and it is so called because it makes men afraid. In assault there is no
actual fight or use of force, only gestures of preparations are used so as to cause a person
present to apprehend that criminal force is about to be used.
160. Punishment for committing affray.—Whoever commits an affray, shall be punished with
imprisonment of either description for a term which may extend to one month, or with fine which may
extend to one hundred rupees, or with both.
1. (1930) I.L.R. 53. All. 229.

2. Babu Ram, I.L.R. 53 All. 229.
3. Podan, (1962) 1 Cr. LJ. 339.
4. Gour, U.S.; Indian Penal Law, (9th ed.) Vol. II, p. 1035.
CHAPTER IX
OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS
Sections 161 to 165A (both inclusive) have been omitted by Section 31 of the Prevention of
Corruption Act, 1988 (Act No. 49 of 1988). These sections and the comments relating to tiiem are
retained with a view to give historical backgroung and to help in the disposed of cases pending for
disposal at the time of its enforcement.
'161. Public servant taking gratification other than legal remuneration in respect of an official act. —
Whoever, being or expecting to be a pablic servant accepts or obtahis or agrees to accept, or attempts to
obtain from any person for himself or any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for
rendering or attempting to render any service or disservice to any person, with the Central or any State
Government or Parliament or the Legislature of any State, or with any local authority, Corporation or
Government Company referred to in section 21, or with any public servant, as such, shall be punished
both.
Explanations.—"Expecting to be a public servant." If a person not expecting to be in office obtains
a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve
them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
"Gratification." The word "gratification" is not restricted to pecuniary gratifications, or to
gratifications estimable in money
"Legal remunerations." The words "legal remuneration" are not restricted to remuneration which
a public servant can lawfully demand, but include all remuneration which he is permitted by the
Government, which he serves, to accept.
"A motive or reward for doing." A person who receives a gratification as a motive for doing what
he does not intend to do, or as a reward for doing what he has not done, comes within these words.
Illustrations
(a) A, a Munsif, obtains from Z, a banker, a situation in Z's bank for A's brother, as a reward to A
for deciding a cause in favour of Z. A has committed the offence defined in this section.
(b) A, holding the office of Counsel in a foreign State, accepts a lakh of rupees from the Minister
of that State. It does not appear that A accepted this sum as a motive or reward for doing or forbearing
to do any particular official act, or rendering or attempting to render any particular service to that State
with the Government of India. But it does appear that A accepted the sum as a motive or reward for
generally showing favour in the exercise of his official functions to that State. A has committed the
offence defined in this section.
(c) A, a public servant, induces Z erroneously to believe that A's influence with the Government
has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has
committed the offence defined in this section.
COMMENT
This section is intended to prevent public servants from taking bribe. To constitute an
offence under this section the prosecution must prove that the accused was a public servant and that
he had obtained illegal gratification for showing or forbearing to show, in the exercise of his
official functions, favour or disfavour to some one. If he had used his official position to extract
illegal gratification the requirement of the law is satisfied.' It is not necessary that all the elements
of the section should always be proved because if emphasis is being given on their complete
satisfaction, the prosecution will never succeed. More over to emphasise on its complete
satisfaction is against the reach of judicial decision.2
Public servant.-—Public servant is defined in section 21 of the Code. A public servant on
leave does not cease to be a public servant. 3 Where a person expects to be in office and promises to
do favour on occupying the office and accepts a bribe, the section applies. Where a public servant is
functus officio, when the offer of bribe is made no offence under this section is constituted. 4 But a
contrary view has been expressed in a number of cases, viz. Ajudhia Prasad,5 Gopeshwar Mandat
and Bhim Singh2 etc. The latter view is supported by the Supreme Court in Mahadev Dhanappa
Gunaki v. State of Bombay? A person who de facto discharges the duties of a public servant is
liable under this section.9 Where a convict warder accepts gratification from prisoner for smuggling
certain papers with some person outside the jail he commits the offence under this section.3"
Legal remuneration.—Anything which is given to a public servant by the Government
which he serves or by any person having authority from that Government to give or what is given
to him by any person, whosoever if the Government permits him to accept the gift, is legal
remuneration. In a case where a judicial officer went in company with a litigant in his court to a
cloth shop and accepted a present of cloth which was paid for by that litigant to gain favour with
the judge in his suit, it was held that the judicial officer was guilty under this section."
Motive or reward.—It is essential that a gratification should be obtained as a motive or
reward.12 The motive or reward mentioned in this section is the consideration for showing favour
which is not necessarily identical with the motive or intention of the giver of the illegal
gratification.'3 It is not necessary to show that some favour was done to the briber, it would be
sufficient if he was led to believe that the matter would go against him if he did not give the officer
a present.14 Where A, a civil surgeon accepts a fee of Rs. 5/- for medical examination of B and
certifying that he is a suitable candidate for admission to the police training college Moradabad, A
would be guilty under this section if he had led B to believe that his recommendation would go
against,him if he did not pay the fee even though B was medically perfect.
A public officer has no right to demand any bribe but when he is hauled up before a criminal court
1. Bhanu Prasad Hariprasad Dave v. State of Gujarat, A.I.R. 1968 S.C. 1323.
2. State of Maharashtra v. Narsingh Rao Ganga Rao Pimple, 1984 Cr. L.J. 4 (S.C).
3. In re Venkata Subbiah, A.I.R. 1948 Mad. 63.
4. Venkatarama Naidu, A.I.R. 1929 Mad. 756.
5. A.I.R. 1928 All. 752.
6. A.I.R. 1948 Nag. 82.
7. A.I.R. 1955 Raj. 108.
8. A.I.R. 1953 S.C 179.
9. Ram Kristo Das, (1871) 16 W.R. 27 (Cr.).
10. Saifull Rasul, A.I.R. 1924 Bom. 385.
11. Bhimrao, (1924) 27 Bom. L.R. 120.
12. Shivji Lai, A.I.R. 1959 S.C. 847.
13. A.I.R. 1918 Mad. 738.
14. A.I.R. 1925 Bom. 261.
to answer charge of having taken illegal gratification, the question whether any motive for payment
or acceptance of bribe at all existed is certainly a relevant and a material fact for consideration. 1
In a case a police constable granted bail to the complainant without demanding anything by
way of reward or bribe or gratification before he finished the entire world of granting the bail.
When everything was over he asked for some tip which was given to him. It was held that the act of
the constable in demanding tip did not constitute an offence under section 161.2
Official Act.—Simple acceptance of money is not an offence under this section; it must be
as a motive or reward for an official act. If a person accepts money as a motive or reward for an act
which cannot be said to be an official act he would not be guilty under this section.3
The gist of the offence under this section is the nature of the act and if the act complained of
is not part of the official duty or conduct of the person then it does not become an official act and
any payment made for such act will not amount to an offence. 4 Payment of a sum to a public
servant whether paid before or after doing of official act would constitute-bribe, 5 if it is obtained as
a motive or reward.
2Omitted by Act No. 49 of 1988, Section 31.

3Omitted by Act No. 49 of 1988, Section 31.
Where a person who is a public servant employed in the office where an appointment is to be
made, takes money in order to get the appointment made, he would be taking money under this
section whether he takes for himself or any other person in his behalf in order to get the work
done.6 In Mahesh Prasad? the Supreme Court has held that a public servant who receives illegal
gratification as a motive for doing or procuring an official act would be guilty under section 161,
whether or not he is capable of doing it, or whether or not he intends to do it. But police officer,
who lays a trap and receives a gratification, not with the intention of taking it as a bribe but in order
to bring to book the person who had offered him the gratification, cannot be' said to be an
accomplice and is not guilty under this section."
In Manshankar? the accused who was a lecturer in a Government College, was appointed as
an examiner in one of the examinations. He received a bribe for giving more marks to one of the
examinees. It was held that the accused could not be convicted under this section because as
examiner he was not a public servant and the bribe was not obtained by him in connection. with any
official functions as a public servant.
Gratification.—Gratification need not be confined to payment of money. It is receiving of
anything other than legal remuneration.10 it* is something which gives satisfaction to the recipient. 11
A public servant accepting a donation, to a charity in which he is interested, as a motive for
showing favour to donor in his official acts, is guilty under this section. 1 Even customary payment
1. A.I.R. 1954 S.C. 637.

2. Deep Chand, A.I.R. 1966 Punj. 302.
3. A.I.R. 1952 All. 667.
4. (1956) 9 Sau. L.R. 39.
5. 1970 Cr. LJ. 793.
6. Jagat Singh, (1963) 66 Bom. L.R. 244 (S.C).
7. 1955 S.CJ. 153.
8. Mahadeo Dhanappa, A.I.R. 1952 Bom. 435.
9. 1970 Cr. L.J. 679.
10. C.I. Emden v. State of U.P., A.I.R. 1960 S.C. 548.
11. A.I.R. 1959 Bom. 543.
in the nature of dasturi comes within the mischief of section 161.2
In Madhukar Matu Bhalekar v. State of Maharashtra? the accused a Gram Sevak demanded
some illegal money for transferring the house in the name of the complainant and to allot a number
to the house. Rs. 14/- was payable as taxes due to the Government. Accused allegedly demanded
Rs. 80/- inclusive of Rs. 14/-. as tax. A trap was laid and marked notes to the denomination of Rs.
50/-, Rs. 20/- and Rs. 10/- were handed over to the accused. Smaller notes were enclosed inside
longer one. The accused being unaware of such enclosure accepting the notes under the impression
that it was only 50 rupees but having no remaining change kept it on the table. The accused was
caught by police and charged under section 161 I.P.C. read with section 5(l)(d) of the Prevention of
Corruption Act. It was held that on these facts no case of 'illegal gratification under section 161 IP.
Code was proved because in a situation of this type where two parallel conflicting versions are
possible, the explanation of the accused that he was unaware of the fact that two smaller notes were
inside 50 rupees note and that he searched his pocket to return the balance amount after deducting
Rs. 14/- but finding no change he kept the money on the table asking the complainant to arrange for
change would have to be accepted.
Attempt.—To ask for a bribe is an attempt to obtain one; and a bribe may be asked for as
effectually in implicit terms.4 In a case where an application was made for renewal of licence of
gun and the clerk concerned demanded from the applicants to invest Rs. 100 in war loan in
consideration of his putting up the application before the Sub-Divisional Magistrate it was held that
the demand amounted to an attempt to commit an offence under this section.5
Abetment.—A mere offer of illegal gratification amounts to an abetment of offence under
section 161; actual money or other consideration need not be produced at the time the offer is
made.6 In a case where the accused offered to pay illegal gratification to Food Inspector for giving
certificates in respect of ration cards, though the offence under section 161 was not committed but
the accused would be liable for having abetted the Food Inspector to commit an offence under this
section. Here the question whether ration cards were true or false had nothing to do with the case. 7
A person who in order to avoid pecuniary injury or personal molestation complies with the demand
of a public servant for an illegal gratification is guilty of abetment of an offence under this section. 8
Relevancy of oral evidence.—In appreciating oral evidence under this section the question in each case is whether the witness is a truthful witness and whether
there is anything to doubt his veracity in any particular matter about which he deposes. Where the witness is found to be partly truthful or to spring from tainted sources, the
court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation but a Court is not entitled to reject the evidence
of a witness merely because they
1. A.I.R. 1923 Bom. 44.

2. A.I.R. 1947 Nag. 109.
3. 1992 Cri. L.J. 2366 (Bom.).
4. (1878) 2 All. 253.
5. A.I.R. 1945 Pat. 258.
6. A.I.R. 1925 Pat. 48.
7. A.I.R. 1991 Tripura 8.
8. Pandita, (1950) Nag. 299.
269 I S. 162
INDIAN PENAL CODE
are government servants, who in the course of their duties or even otherwise might have come into
contact with investigating agencies. For that matter it would be wrong to reject the evidence of
police officers either on the mere ground that they are interested in the success of the prosecution. It
is extremely unfair to a witness to reject his evidence by merely giving him a label.1
2
162. Taking gratification, in order, by corrupt or illegal means, to influence public servant —
Whoever accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for
any other person, any gratification whatever, as a motive or reward for inducing, by corrupt or illegal
means, any public servant to do or to forbear to do any act, official or in the exercise of the official
functions of such public servant to show favour or disfavour to any person, or to render or attempt to
render any service or dis-service to any person with the Central or any State Government or Parliament
or the Legislature of any State, or with any local authority. Corporation or Government Company
referred to in section 21, or with any public servant, as such, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.
COMMENT
This section deals with the offence of a private person taking a bribe to influence a public
servant by corrupt and illegal means. Under this section the recipient of consideration is not a
public servant though the motive is the doing of something or showing of a favour by public
servant.3
4
163. Taking gratification, for exercise of personal influence with public servant.—Whoever accepts
or obtains, or agrees to accept or attempts to obtain from any person, for himself or for any other person,
any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any
public servant to do or forbear to do any official act, or in the exercise of the official function of such
public servant to show favour or disfavour to any person, or to render or attempt to render any service or
dis-service to any person with the Central or any State Government or Parliament or the Legislature of
any State, or with any local authority, Corporation or Government Company referred to in section 21, or
with any public servant, as such, shall be punished with simple imprisonment for a term which may
extend to one year, or with fine or with both.
Illustration
An Advocate who receives a fee for arguing a case before a Judge; a person who receives pay for
arranging and correcting a memorial addressed to Government, setting forth the services and claims of
the memorialist; a paid agent for condemned criminal, who lays before the Government statements
tending to show that the condemnation was unjust are not within this section inasmuch as they do not
exercise or profess to exercise personal influence.
COMMENT
Under this section a public servant is sought to be deflected by personal influence. This
section deals with taking gratification by a private individual for the exercise of personal influence
over a public servant. The words "personal influence" is not defined in the Code. It means an
influence to dominate the will of a public servant. The difference between sections 162 and 163 is
that in the former case a public servant is sought to be influenced by corrupt or illegal means and
under the latter section he is sought to be deflected by personal influence.
In Mahendra Singh Chotelal Bhargad v. State of Maharashtra,5 the appellant was convicted
for receiving illegal gratification to induce public servants under section 163. by the High Court. In
this case, the police raided one guest house and found immoral trafficking going on there. The
Inspector and Sub-Inspector struck a deal with the proprietor of the Guest Ho»se for dropping the
1. State of Gujarat v. Raghunath Vaman Rao Baxi, 1985 Cr. L.J. 1357 (S.C).
2. Omitted by Act No. 49 of 1988, section 31.
3. R. Chinnaswami lyenger, li Cr. L.J. 696.
5. A.I.R. 1998 S.C. 601.
prosecution and instructed him to pay the illegal gratification through the appellant. The -proprietor
reported the matter to Anti-Corruption officials who laid a trap and the appellant was trapped. The
trial court held the appellant and the police-officer liable under sections 163 and 161, IP. Code. But
the High Court convicted the appellant under section 163, IP. Code and acquitted the Inspector and
Sub-Inspector as proprietor could not prove as to instructions against them.
The Supreme Court allowed the appeal and acquitted the appellant on the ground that the
deal was struck between the police official and proprietor and not between the appellant and
proprietor. He was just a middle man who did not offer to induce a public servant but public
servants wanted to receive the amount through him. So the Supreme Court found the judgment of
High Court unreasonable on this count.
1
164. Punishment for abetment by public servant of offences defined in section 162 or 163. —
Whoever being a public servant, in respect of whom either of the offences defined in the last two
preceding sections is ' committed, abets the offence shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.
Illustration
A is a public servant B. A's wife, receives a present as a motive for soliciting A to give an office to a
particular person. A abets her doLig so. B is punishable with imprisonment for a term not exceeding one
270 I S. 162
INDIAN PENAL CODE
year, or with fine, or with both. A is punishable with imprisonment for a term which may extend to three
2
165. Public servant obtaining valiuible thing without consideration from person concerned in
proceeding or business transacted by such public servant.—Whoever, being a public servant, accepts or
obtains, or agrees to accept or attempts to obtain, for himself, or for any other person, any valuable thing
without consideration, or for a consideration, which he knows to be inadequate,
from any person whom he knows to have been, or to be, or to be likely to be, concerned in any
proceeding or business transacted or about to be transacted by such public servant, or having any
connection with the official functions of himself or of any public servant to whom he is subordinate,
or from any person whom he knows to be interested in or related to the person so concerned,
shall be punished with imprisonment of either description for a term which may extend to three
Illustrations
(a) A, a Collector, hires a house of Z, who has a settlement case pending before him. It is agreed
that A shall pay fifty rupees a month, the house being such that if the bargain were made in good faith, A
would be required to pay two hundred rupees a month. A has obtained a valuable thing from Z without
adequate consideration.
(b) A, a Judge, buys of Z, who has a case pending in A's Court Government promissory notes at a
discount, when they are selling in the market at a premium. A has obtained a valuable thing from Z
without adequate consideration.
(c) Z's brother is apprehended and taken before A, a Magistrate, on a charge of perjury. A sells to
Z shares in a bank at a premium, when they are selling in the market at a discount Z pays A for the
shares accordingly. The money so obtained by A is a valuable thing obtained by him without adequate
consideration.
COMMENT
Public servants are prohibited from accepting presents under this section. If they are allowed
to take presents they may be induced to take bribes in the shape of presents. Under this section
taking presents with any motive or as reward

271 INDIAN PENAL CODE f S. 165-A
is not relevant.1 This section prohibits taking valuable things without consideration from a person
having any connection with the official functions of the public servant.
2
165-A. Punishment for abetment of offence defined in section 161 or section 165.—Whoever abets any
offence punishable under section 161 or section 165, whether or not that offence is committed in consequence of
the abetment, shall be punished with imprisonment of either description for a term which may extend to three
COMMENT
This section was inserted in 1952. It deals with the offence of abetment of offences under
sections 161 and 165 of the Code. This section provides enhanced penalty for the offence of
abetment in these two cases.3 For a conviction under this section the requirement of section 107
must be satisfied although it is not necessary that the offence abetted should have been committed.4
166. Public servant disobeying law, with intent to cause injury to any person.—Whoever,
being a public servant, knowingly disobeys any direction of the law as to the way in which
he is to conduct himself as such public servant intending to cause, or knowing it to be likely
that he will, by such disobedience, cause injury to any person, shall be punished with simple
imprisonment for a term which may extend to one year, or with fine, or with both.
Illustration
A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced
in Z's favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely
thereby to cause injury to Z. A has committed the offence defined in this section.
COMMENT
The essence of the offence under this section is wilful disobedience of an express direction of
law by a public servant with an intention to cause injury to any person. 5 This section contemplates
breach of some statutory duty with a view to cause injury to any person. A mere breach of
departmental rules or regulations not having fhe force of law cannot fall under this section.
167. Public servant framing as incorrect document with intent to cause injury.—Whoever,
being a public servant, and being, as such public servant, charged with the preparation or
translation of any document or electronic record, frames, prepares or translates that document
or electronic record in a manner which he knows or believes to be incorrect, intending thereby,
to cause or knowing it to be likely that he may thereby cause injury to any person, shall be
punished with imprisonment of either description for a term which may extend to three years,
COMMENT
This section deals with an incorrect framing or translating of a document or electronic record
the preparation or translation of which is within the scope of his official duty provided he was aware
of it and it was done with the intention or knowledge that it was likely to cause injury to any person.
168. Public servant unlawfully engaging in trade.— Whoever, being a public servant, and
being legally bound as such public servant not to engage in trade, engages in trade, shall be
punished with simple imprisonment for ,a term which may extend to one year, or with fine,
or with both.
COMMENT
This section makes punishable those public servants who are legally bound not to engage in
trade. If public servants are allowed to engage in trade they would not be able to devote their
undivided attention to their official work.
1. Pundlik Bhikaji, Ahir, A.I.R. 1959 Bom. 543.
3. Bhajahari, 1959 S.C.R. 1276.
4. Faguna Kanita, 1959 S.C.J. 643.
5. Appaji Narain, (1895) Buc. 764.
Moreover they may take unfair advantage over other traders of their official position for the
advancement of their trade. Trade in its wider sense covers every kind of trade, business, profession,
occupation, calling or industry. The work of preparing plans and estimates is a trade.1
169. Public servant unlawfully buying or bidding for property.—Whoever, being a public servant,
and being legally bound as such public servant, not to purchase or bid for certain property, purchases or
bids for that property, either in his own name or in the name of another, or jointly, or in shares with
others, shall be punished with simple imprisonment for a term which may extend to two years, or with
fine, or with both, and the property, if purchased, shall be confiscated.
COMMENT
This section is an extension of the preceding section. It prohibits a public servant from
purchasing or bidding for property which he is legally bound not to purchase.
170. Personating a public servant.—Whoever pretends to hold any particular office as a
public servant, knowing that he does not hold such office or falsely personates any other person
holding such office, and in such assumed character does or attempts to do any act under
colour of such office, shall be punished with imprisonment of either description, for a term
which may extend to two years, or with fine or with both.
COMMENT
Ingredients.—Section 170 consists of two ingredients :
272 INDIAN PENAL CODE f S. 165-A
(1) A person (a) pretending to hold a particular office as a public servant knowing
that he does not hold such office, or (b) falsely personating any other person holding such
office.
(2) Such person in such assumed character must do or attempt to do an act under
colour of such office.
Pretends to hold office.—Mere personation to hold office is not an offence, but the doing or
attempting to do some act under colour of the office which he pretends to hold is an offence. The
essence of the offence lies in the false assumption of the role of the public servant. 2 It is necessary
that the accused knew that he did not hold the office which he pretended to hold.3
Any act.—The offender must be shown to have attempted to do or to have done some act in
his assumed character 'under colour' of his office. The question whether the offender made or not
any gain out of his activities while he poses; as a public servant is an immaterial consideration.4
Under colour of office.—The act done under the colour of an office is an act having some
relation to the office which the accused pretends to hold. Where a person falsely personated as a
Head constable and under colour of such pretended office collected from villagers a small sum of
money, he was guilty under this section.5
171. Wearing garb or carrying token used by a public servant with fraudulent
intent.—Whoever, not belonging to a certain class of public servants, wears any garb or carries
any token resembling any garb or token used by that class of public servants, with the intention
that it may be believed, or with the knowledge that it is likely to be believed, that he belongs
to that class of public servants, shall be punished with imprisonment of either description, for
a term which may extend to three months, or with fine which may extend to two hundred
rupees, or with both.
1. Mahesh Kumar Dhirajlal Thuchar, 197'4 Guj. L.R. 2.

2. Satyapal Thapar, A.I.R. 1951 All. 482.
3. PR. Gopal Pillai, (1974) M.L.J. (Cr.) 308.
4. Satyapal Thapar, A.I.R. 1951 All. 482.
5. Lakshminarayan Tripathy, A.I.R. 1943 Pat. 378.
273 INDIAN PENAL CODE ! S. 171
COMMENT
Under this section merely wearing of a garb or carrying any token resembling any garb or
token used by that class of public servants with the intention to pose as such public servant is
punishable. If it is garb the accused must wear it and not merely carry it and if it is token he must
exhibit it and not merely keep it in his pocket. It is not necessary that some act must be done or
attempted to be done in the assumed garb.
274 [ S. 171-C
INDIAN PENAL CODE
CHAPTER IX-A OF OFFENCES RELATING TO

ELECTIONS
171-A. "Candidate", "Electoral right", defined.—For the* purposes of this Chapter—
(a) "candidate" means a person who has been nominated as a candidate at any
election ;
(b) "electoral right" means the right of a person to stand or not to stand as, or. to
withdraw from being, a candidate or to vote or refrain from voting at an election.
COMMENT
This chapter seeks to make punishable bribery, undue influence and personation and certain
other malpractices at elections to the Legislative bodies as well as to membership of public
authorities where the law prescribes a method of election. It also seeks to debar persons guilty of
malpractices from holding positions of public responsibility for a specific period.
This section defines a "candidate" and "electoral right"
171-B. Bribery—(1) Whoever—
(1) gives a gratification to any person with the object of inducing him or any other
person to exercise any electoral right or of rewarding any person for having
exercised any such right ; or
(ii) accepts either for himself or for any other person any gratification as a reward for exercising any
such right or for inducing or attempting to induce any other person to exercise any such right, commits
the offence of bribery :
Provided that a declaration of public policy or a promise of public action shall not be an offence
under this section.
(2) A person who offers, or agrees to give or offers or attempts to procure, a gratification shall be
deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed
to accept a gratification, and a person who accepts a gratification as a motive for doing, what he does not
intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the
gratification as a reward.
COMMENT
This section defines the offence of bribery at an election. Bribery as defined in sub-section
(1) also includes offers or agreements to give or offer and attempts to procure a gratification for any
person. Treating will amount to bribery if refreshment is given or accepted with the intent required
by law.
In Deepak Ganpatrao Salunke v. State of Maharashtra,1 a statement was made by the
Deputy Chief Minister of Shivsena-BJP alliance Government of Maharashtra in a public meeting
that if Republican Party of India would support the alliance in the Parliamentary Election he will
see that a member of the R.P.I. is made Deputy Chief Minister of State. It was held that the above
statement does not amount to bribery as defined under section 171-B of the Indian Penal Code,
since such statement is not giving any offer to any individual but it is an offer to RPI and the
condition is that RPI should support BJP-Shivsena alliance in the election. This is nothing but a
political statement made from a public platform describing policy of the party, that if some other
party gives support to
BJP-Shivsena alliance in Parliamentary Elections, the other party, i.e. RPI will be given share in
1. 1999 Cr. L.J. 1224 (S.C).
political power. There is nothing in the statement as indicating that any offer was given to any
individual. Furthermore, there is nothing in the statement inducing any individual to exercise any
electoral right in a particular manner. By the statement no influence is being brought on any
individual with respect to exercising his electoral right, that means to stand or not to stand as, or to
withdraw from being a candidate or to vote or to refrain from voting in the election. Therefore
seeking support of a political party during the course of election and making an offer to political
party of some share in the political power for giving such support cannot be called as giving
gratification as contemplated under section 171-B of the Penal Code.
It was further pointed out that unless there is such give and take policy amongst the political
parties, the political alliances which are now necessary to form a coalition government, are not
possible. When one party on its own cannot get majority in the house, coalition government is the
only alternative solution. Judged in the light of these circumstances, the statement does not amount
to bribery as contemplated under section 171-B of the Indian Penal Code.
171-C. Undue influence at elections.—(1) Whoever, voluntarily interferes or attempts to interfere
with the free exercise of any electoral right commits the offence of undue influence at an election.
(2) Without prejudice to the generality of the provisions of sub-section (1) whoever—
(a) threatens any candidate, or voter, or any person in whom a candidate or voter is interested,
with injury of any kind, or
(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom
he is interested will become or will be rendered an object of Divine displeasure or spiritual
censure,
shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within
the meaning of sub-section (1).
(3) A declaration of public policy or a promise of public action, or the mere exercise
of a legal right without intent to interfere with an electoral right, shall not be deemed to be
interference within the meaning of this section.
COMMENT
This section defines undue influence at elections. Undue influence at an election means
voluntary interference or attempted interference with the right of any person to stand, or not to
stand as, or withdraw from being, a candidate, or to vote or refrain from voting. By the expression
"free exercise of electoral right" does not mean that a voter is not to be influenced. This expression
has to be understood in the context of an election in a democratic society and the candidates and
other supporters are allowed to canvass support by all legal and legitimate means. The exercise of
the right by the candidate or his supporters to canvass support does not interfere or attempt to
interfere with the free exercise of an electoral right.'
In Raj Dev v. Gangadhar,1 a candidate professed that he was Chalanti Vishnu and
representative of Lord Jagannath himself and that anyone who does not vote for him would be
sinner against the Lord and the Hindu religion. It was held that this kind of propaganda would
amount to an offence under section 171-F read with section 171-C.
171-D. Personation at elections.—Whoever at an election applies for a voting paper or
1. Shiv Kripal Singh v. V.V. Giri, (1970) 2 S.C.C. 567.
2. A.I.R. 1964 Orissa 1.
276 [ S. 171-C
INDIAN PENAL CODE
S. 171-H ] OF OFFENCES RELATING TO ELECTIONS 335

votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted
once at such election applies at the same election, for a voting paper in his own name, and whoever abets,
procures or attempts to procure the voting by any person in any such way, commits the offence of
personation at an election.
[Provided that nothing in this section shall apply to a person who has been authorised to vote as
proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such
elector.]1
COMMENT
This section defines 'personation at election', Any person who attempts to vote in another
person's name or in a fictitious name, or one who attempts to vote twice and any one who abets,
procures, or attempts to procure such voting is guilty of personation. What is necessary is that the
accused must have been actuated by a corrupt motive.2
The effect of proviso to section 171-D which has been inserted by the Election Laws
(Amendment) Act, 2003 is that a proxy vote which would have earlier been invalid would now be
treated as valid if it is cast by a person who has been authorised to vote as proxy for an elector
under any law for the time being in force. Now such proxy voter would not be liable for the offence
of personation at an election under this section.
171-E. Punishment for bribery.—Whoever commits the offence of bribery shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine or with both :
Provided that bribery by treating shall be punished with fine only.
Explanation.—"Treating" means that from of bribery where the gratification consists in food,
drink, entertainment or provision.
COMMENT
This section provides punishment for bribery. However bribery by treating is punishable with
fine only.
171-F. Punishment for undue influence or personation at an election.—Whoever commits the
offence of undue influence or personation at an election shall be punished with imprisonment of either
description for a term which may extend to one year or with fine, or with both.
COMMENT
This section prescribes punishment for the offence of undue influence or personation at an
election.
171-G. False statement in connection with an election.—Whoever with intent to affect the result of
an election makes or publishes any statement purporting to be a statement of fact which is false and
which he either knows or believes to be false or does not believe to be true, in relation to the personal
character or conduct of any candidate shall be punished with fine.
COMMENT
This section punishes false statements of fact in relation to the personal character or conduct
of a candidate. General imputations of misconduct unaccompanied by any charges of a particular
acts of misconduct cannot properly be described as statements of fact within the meaning of this
section.3
171-H. Illegal payments in connection with an election.—Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account
of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such
candidate, shall be punished with fine which may extend to five hundred rupees :
1. This proviso to section 171-D has been inserted by the Election Laws (Amendment) Act,
2003. .
2. Venkayya, (1929) 53 Mad. 444.
3. Radha Krishna Ayyar, (1932) 55 Mad. 791.
Provided that if any person having incurred any such expenses not exceeding the amount of ten
rupees without authority obtains within ten days from the date on which such expenses were incurred the
approval in writing of the candidate, he shall be deemed to have incurred such expenses with the
authority of the candidate.
COMMENT
Under this section it is illegal for apy person, unless authorised by a candidate to incur
any expenses in connection with the promotion of the candidate's election.
171-1 Failure to keep election accounts.—Whoever being required by any law for the time being in
force or any rule having the force of law to keep such accounts of expenses incurred at or in connection
with an election fails to keep such accounts shall be punished with fine which may extend to five hundred
rupees.
COMMENT
Failure to keep accounts of election expenses is punishable under this section, if such
accounts are required to be kept by any law or rule having the force of law.
CHAPTER X
OF CONTEMPTS OF THE LAWFUL AUTHORITY OF
PUBLIC SERVANTS
172. Absconding to avoid service of summons or other proceeding.—Whoever absconds
in order to avoid being served with a summons, notice or order, proceeding from any public
se' vant legally competent, as such public servant to issue such summons, notice or order, shall
' £ punished with simple imprisonment for a term which may extend to one month, or with
ane, which may extend to five hundred rupees, or with both ;
Or, if the summons or notice or order is to attend in person or by agent, or to produce a document
or an electronic record in a court of justice, with simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.
COMMENT
The object of this section is to punish disregard of a legal process by one who absconds to
avoid service of summons, notice or order. Under Clause 1 such process may have been issued by
any public servant who is legally competent to issue such summons etc. Clause 2 applies where the
summons, notice or order is (1) for attendance in court; or (2) for production of a document.
Abscond.—Abscond does not necessarily mean departing from a place. It means to hide
oneself whether one departs from a place or remains in it. Where a person was concealing himself
before the process was issued and he continues to do so thereafter also, he is said to abscond.1
The summons, notice or order must be addressed to the person whose attendance is required
and who absconds to avoid service of such summons etc. A warrant is not an order served on an
accused, it is an authority or order given to the police to arrest him. 2 Absconding to avoid arrest
under a warrant is not an offence under this section.3
173. Preventing service of summons or other proceeding, or preventing publications
thereof.—Whoever in any manner intentionally prevents the serving on himself, or on any other
person, of any summons, notice or order, proceeding from any public servant legally competent,
as such public servant, to issue such summons, notice or order,
or intentionally prevents the lawful affixing to any place of any such summons, notice or order,
or intentionally removes any such summons, notice or order from any place to which it is lawfully
affixed,
or intentionally prevents the lawful making of any proclamation, under the authority of any public
servant legally competent, as such public servant, to direct such proclamation to be made,
shall be punished with simple imprisonment for a term which may extend to one month, or with
fine which may extend to five hundred rupees, or with both ;
or, if the summons, notice, order or proclamation is to attend in person or by agent, or to produce
a document or electronic record in a Court of Justice, with simple imprisonment for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or with both.
COMMENT
Intentional prevention of the service of summons, notice or order is made punishable by this
section. A refusal to sign a summon,4 or a refusal to receive summons,1 or the throwing down of a
1. Sriravasa Ayyangar, (1881) 4 Mad. 393.
2. Lakshumi, (1881) Unrep Cr. C. 152.
3. Annawdin, (1923) 1 Rang. ^18.
4. Kalya Fakir, (1868) 5 B.H.C. (Cr.C.) 34.
summons after service do not constitute an offence under this section.2

174. Non-attendance in obedience to an order from public servant.—Whoever, being
legally bound to attend in person or by an agent at a certain place and time in obedience to
a summons, notice, order or proclamation proceeding from any public servant legally
competent, as such public servant, to issue the same.
intentionally omits to attend at that place or time, or departs from the place where he is bound to attend
before the time at which it is lawful for him to depart.
shall be punished with simple imprisonment for a term which may extend to one month, or with fine
which may extend to five hundred rupees, or with both ;
or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice,
with simple imprisonment for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.
Illustrations
(a) A, being legally bound to appear before the High Court at Calcutta in obedience to a subpoena
issuing from that Court, intentionally omits to appear. A has committed the offence defined in this section.
(b) A, being legally bound to appear before a District Judge, as a witness in obedience to a summons
issued by that District Judge intentionally omits to appear. A has committed the offence defined in this section.
COMMENT
To constitute an offence under this section there must be an intentional omission to appear—
(1) at a particular specified place in India,3
(2) at a particular time,
(3) before a specified public functionary,
(4) in obedience to a summons, notice or order.
The order may be written or verbal 4 and the summons etc. must not be defective in form. 5
Summons, notice or order must be issued by an officer having jurisdiction in the matter. 6 In order to
justify a conviction under this section it is necessary that the person summoned, was legally bound
to attend and he must have refused or intentionally omitted to attend.7
In a case where a man attended the court at the time specified in the summons but finding the
Magistrate not present in the court, left the court without waiting for a reasonable time, it was held
that he was guilty of an offence under this section.8
174-A. Non appearance in response to a proclamation under section 82 of Act 2 of 1974.—Whoever
fails to appear at the specified place and the specified time as required by a proclamation published under sub-
section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a
term which may extend to three years or with tine or with both, and where a declaration has been made under
sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with
imprisonment for a term which may extend to seven years and shall also be liable to fine."
175. Omission to produce document to public servant by person legally bound to produce
it.—Whoever, being legally bound to produce or deliver up any document or electronic record
to any public servant, as such intentionally omits so to produce or deliver up the same, shall
be punished with simple imprisonment for a term which may extend to one month, or with
fine which may extend to five hundred rupees, or with both ;
1. Punamalai, (1882) 5 Mad. 199.
2. Antmuga Nadan, (1882) 5 Mad. 200.
3. Paranga, (1893) 16 Mad. 463.
4. Guman, (1873) Unrep. Cr. C. 75.
5. Krishtappa, (1896) 20 Mad. 31.
6. Venkaji Bhaskar, (1871) 8 B.H.C. (Cr. C.) 19.
7. Sreenath Glwse, (1868) 10 W.R. (Cr.) 33.
8. Kisan Bapu, (1885) 10 Bom. 93.
or, if the document or electronic record is to be produced or delivered up to a Court of Justice, with
simple imprisonment for a term which may extend to six months, "r with tine which may extend to one thousand
Illustration
A, being legally bound to produce a document before a District Court intentionally omits to produce the
same. A has committed the offence defined in this section.
COMMENT
Refusal to produce documents which one is legally bound to produce before a public servant
is punishable under this section.
176. Omission to give notice or information to public servant by person legally bound to
give it.—Whoever, being legally bound to give any notice or furnish information on any subject
to any public servant, as such, intentionally omits to give such notice or to furnish such
information in the manner and the time required by law, shall be punished with simple
imprisonment for a term which may extend to one month, or with fine which may extend to
live hundred rupees, or with both,
or, if the notice or information required to be given respects the commission of an offence, or, if required
for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with
simple imprisonment for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both,
or, if the notice or information required to be given is required by an order passed under sub-section (1)
of section 565 of the Code of Criminal Procedure, 1898 (5 of 1898), with imprisonment of either description for
a term which may extend to six months, or with fine wh'ch may extend to one thousand rupees, or with both.
COMMENT
This section deals with those persons who owe a legal obligation to furnish certain
information to public servants and punishes those who commit an intentional breach of such
obligation imposed by law.1
177. Furnishing false information.—Whoever, being legally bound to furnish information
on any subject to any public servant, as such furnishes, as true, information on the subject
which he knows or has reason to believe to be false, shall be punished with simple
imprisonment for a term which may extend to six months or with fine which may extend to
one thousand rupees, or with both.
or, if the information which he is legally bound to give respects the commission of an offence, or is
required for the purpose of preventing the commission of an offence, or in order to the apprehension of an
offender, with imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
Illustrations
(a) A, a landholder, knowing of the commission of a murder within the limits of his estate, wilfully
misinforms the Magistrate of the district that the death has occurred by accident in consequence of the bite of a
snake. A is guilty of the offence defined in this section.
(b) A, a village watchman, knowing that a considerable body of strangers has passed through his village in
order to commit a dacoity in the house of Z, a wealthy merchant residing in a neighbouring place, and being
bound under clause 5, section 7, Regulation III, 1821, of the Bengal Code, to give early and punctual
information of the above fact to the officer of the nearest police station, wilfully misinforms the police officer
that a body of suspicious characters passed through the village with a view to commit dacoity in a certain distant
place in a different direction. Here A is guilty of the offence defined in the later part of this section.
Explanation.—In section 176 and in this section the word "offence" includes any act committed at any
place out of India, which, if committed in India, would be punishable under any of the following sections,
namely, 302, 304, 3S2, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459, and 460;
and the word "offender" includes any person who is alleged to have been guilty of any such act.
COMMENT
This section punishes those upon whom an obligation is imposed by law to give certain
information and they give a false information.
1. Phool Chand Brojobassee, (1871) 16 W.R. (Cr.) 35.
178. Refusing oath or affirmation when duly required by public servant to make
it.—Whoever, refuses to bind himself by an oath or affirmation to state truth, when required
so to bind himself by a public servant legally competent to require that he shall so bind
himself, shall be punished with simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.
COMMENT
The refusal to take an oath or affirmation to state the truth amounts to contempt of court and
is punishable under this section.
179. Refusing to answer public servant authorised to question.—Whoever, being legally
bound to state the truth on any subject to any public servant, refuses to answer any question
demanded of him touching that subject by such public servant in the exercise of the legal
powers of such public servant, shall be punished with simple imprisonment for a term which
may extend to six months, or with fine which may extend to one thousand rupees, or with
both.
COMMENT
This section punishes the refusal to answer a question which is relevant to the subject
concerning which the public servant is authorised to inquire, or which at least touches that subject
in some way. If a person refuses to answer he will be punished under this section but if he gives
false answers he will be guilty under section 193. However, refusing to answer questions of a public
officer investigating a case under section 161 of the Cr. P. Code, 1973 is not an offence under this
section.
In Nandini Satpathy v. P.L. Dani,' the Supreme Court considered two questions : (i) Does mens rea
form a necessary constituent of section 179 and if so what is its precise nature ? (ii) where do we
demarcate the boundaries of benefit of doubt in the setting of section 161 (2) Cr. P. Code and
section 179 of the Penal Code. In its endeavour to find an answer to these questions the court
considered in detail the ambit of section 161 Cr. P. Code and of Art. 20 (3) of the Constitution. The
Court observed : "We have no doubt that section 179 I.P.C. has a component of mens rea and where
there is no wilful refusal but only unwilling omission or innocent warding off, the offence is not
made out. When there is reasonable doubt indicated by the accused's explanation he is entitled to its
benefit and cannot be forced to substantiate his ground lest, by this process, he is constrained to
surrender the very privilege for which he is fighting. What may apparently be innocent information
may really be innocent or noxious viewed in the wider setting."
180. Refusing to sign statement.—Whoever, refuses to sign any statement made by him,
when required to sign that statement by a public servant legally competent to require that he
shall sign that statement, shall be punished with simple imprisonment for a term which may
extend to three months, or with fine which may extend to five hundred rupees, or with both.
COMMENT
Refusing to sign a statement is made punishable by this section. The statement must be such
as the accused may be legally required to sign.
181. False statement on oath or affirmation to public servant or person authorised to
administer on oath or affirmation.—Whoever, being legally bound by an oath or affirmation to
state the truth on any subject to any public servant or other person authorised by law to
administer such oath of affirmation, makes to such public servant or other person as aforesaid
touching that subject, any statement which is false, and which he either knows or believes to
be false or does not believe to be true, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall also be liable to fine.
COMMENT
This section punishes making of a false statement to any public servant, or other person,
authorised to administer oath or affirmation.2 This section shall not
1. 1978 Cri. L.J. 968. - 2. Niaz Ali.
(1882) 5 All. 17.
apply where the public servant administers the oath in a case which is beyond his jurisdiction, 1 or
where he is not competent to take a statement on solemn affirmation.2
182. False information with intent to cause public servant to use his lawful power to the
injuiy of another person.—Whoever gives to any public servant any information which he knows
or believes to be false, intending thereby to cause, or knowing it to be likely that he will
thereby cause, such public servant—
(a) to do or omit anything which such public servant ought not to do or omit if the true state
of facts, respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person,
shall be punished with imprisonment of either description for a term which may extend to six months, or with
fine which may extend to one thousand rupees, or with both.
Illustrations
(a) A informs a Magistrate that Z, a police officer, subordinate to such a magistrate, has been guilty of neglect
of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information
will cause the Magistrate to dismiss Z. A has committed the offence defined in this section.
(b) A falsely informs a public servant that Z has contraband salt in a secret place knowing such information to
be false, and knowing that it is likely that the consequence of the information will be a search of Z's premises,
attended with annoyance to Z. A has committed the offence defined in this section.
(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular
village. He does not mention the name of any person as one of his assailants, but knows it to be likely that in
consequence of this information the police will make enquiries and institute searches in the village to the
annoyance of the villagers or some of-them. A has committed an offence under this section.
COMMENT
This .section deals with false information which misleads a public servant in doing what he
ought not to do. Thus the object of this section is that a public servant should not be misled by any
false information. A person who gives false information to a public servant must have; an intention
to mislead him and he should have known that information to be false. It is not necessary that the
public servant to whom false information is given should act upon such formation or omit to do
anything in consequence of such information; intention or knowledge of the person who supplies
such information is sufficient to constitute an offence under this section. For a defect in the
discharge of a duty it is not necessary to abuse the police from a public platform in order to commit
an offence under this section.3
183. Resistance to the taking of property by the lawful authority of a public
servant.—Whoever, offers any resistance to the taking of any property by the lawful authority
of any public servant knowing, or having reasons to believe that he is such public servant,
shall be punished with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand, rupees or with both.
COMMENT
This section punishes a person who offers resistance in the taking of property by the lawful
authority of any public servant, such resistance to an act of public servant must be with the
knowledge that the resistance is against the public authority.
184. Obstructing sale of property offered for sale by authority of public servant.—Whoever,
intentionally obstructs any sale of property offered for sale by the lawful authority of any
public servant, as such, shall be punished with imprisonment of either description for a term
1. Andy Chetty, (1865) 2 M.H.C. 438.

2. Subba, (1883) 6 Mad. 252.
3. Shiv Kumar Prasad Singh v. State of Bihar, 1984 Cri. L.J. 1417.
which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
COMMENT
Under this section a person who intentionally obstructs sale of property by any public
authority, shall be punished. Physical obstruction is not necessary. A person using abusive language
at an auction-sale conducted by a public servant was held liable under this section.1
185. Illegal purchase or bid for property, offered for sale by authority of public
servant.—Whoever, at any sale of property held by the lawful authority of a public servant,
as such, purchases or bids for any property on account of any person, whether himself or any
other, whom he knows to be under a legal incapacity to purchase that property at that sale,
or bids for such property not intending to perform the obligations under which he lays himself
by such bidding, shall be punished with imprisonment of either description for a term which
may extend to one month, or with fine which may extend to two hundred rupees, or with
both.
COMMENT
This section provides punishment for illegal purchase or bid for property offered for sale by
authority of a public servant. If a person makes a bid at a public sale of property on account of a
party who is under a legal incapacity to purchase it shall be punished under this section.
186. Obstructing public servant in discharge of public functions.—Whoever voluntarily
obstructs any public servant in the discharge of his public functions, shall be punished with
imprisonment of either description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.
COMMENT
A person who voluntarily obstructs a public servant in discharge of his public functions shall
be punished under this section. However, the obstruction or the resistance offered to a public
servant must be in the discharge of public activities authorised by law. The word obstruction in the
section means some overt act of violence or show of violence.
187. Omission to assist public seivant when bound by law to give assistance. —Whoever,
being bound by law to render or furnish assistance to any public servant in the execution of
his public duty, intentionally omits to give such assistance, shall be punished with simple
imprisonment for a term which may extend to one month, or with fine which may extend to
two hundred rupees, or with both ;
and if such assistance be demanded of him by a public servant legally competent to make such demand
for the purposes of executing any process lawfully issued by a Court of Justice, or of preventing the commission
of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an
offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term
which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
COMMENT
Under this section if a person bound by law to render assistance to a public servant in the
discharge of his public duty, intentionally omits to assist shall be punished. The section further
provides for the punishment when the assistance is demanded for certain specified purposes.
188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that,
by an order promulgated by a public servant lawfully empowered to promulgate such order,
he is directed to abstain from a certain act, or to take certain order with certain property in
his possession or under his management, disobeys such direction,
shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of
obstruction, annoyance or injury, to any person lawfully employed, be punished with imprisonment for a term
which may extend to one month, or with] fine which may extend to two hundred rupees, or with both ;
and if such disobedience causes or tends to cause danger to human
1. Prov.
life, healthGovt. CP. & Berar v. Balaram, A.I.R. 1939 Nagpur 139.
or safety, or causes or tends to cause a riot or affray, shall be
punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand
Explanation,—It is not necessary that the offender should intend to produce harm, or contemplate his
disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that
his disobedience produces, or is likely to produce harm.
Illustration
An order is promulgated by a public servant lawfully empowered to promulgate such order, directing
that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby
causes danger of riot. A has committed the offence defined in this section.
COMMENT
(1) a lawful order promulgated by a public servant empowered to promulgate it;
(1) knowledge of the order which may be general or special;
(2) disobedience of such order; and
(2) the result that is likely to follow from such disobedience. Under the section
the accused must have knowledge of the order with the
disobedience of which he is charged. Mere disobedience of an order does not constitute an offence
in itself, it must be proved that such disobedience has resulted into certain consequence, namely
annoyance, obstruction etc.
189. Threat of injury to public servant.—Whoever holds out any threat of injury to any
public servant, or to any person in whom he believes that public servant to be interested, for
the purpose of inducing that public servant to do any act, or to forbear or delay to do any
act, connected with the exercise of the public function of such public servant, shall be punished
with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
COMMENT
This section provides punishment for causing threat of injury to a public servant or to any
other person in whom a public servant is interested. This section deals with such menaces which
would have a tendency to induce the public servant to change his decision. In a case two constables
went at night at the house of a suspect and called out his name from the public road, the brother of
the suspect who lived in the adjoining house came out and threatened to assault the two constables
on duty for the annoyance they have caused. It was held that he was guilty of an offence under this
section.1 Where the conductor of a nationalised bus is threatened by a student for the purpose of
inducing him to deter in the discharge of his duty, the student would be liable under this section.
190. Threat of injury to iiuiuce person to refrain from applying for protection to public
servant.—Whoever holds out any threat of injury to any person for the purpose of inducing
that person to refrain or desist from making a legal application for protection against any
injury to any public servant legally empowered as such to give such protection, or to cause
such protection to be given, shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine, or with both.
COMMENT ,
The purpose of this section is to prevent persons from terrorising others • with a view to deter
them from seeking the protection of public servants against any injury.
1. Yar Muhammad, (1930) 58 Cal. 392.

CHAPTER XI OF FALSE EVIDENCE AND
OFFENCES AGAINST PUBLIC JUSTICE
191. Giving false evidence.—Whoever, being legally bound by an oath or by an express provision of
law to state the truth, or being bound by law to make a declaration upon any subject, makes any
statement which is false ; and which he either knows or believes to be false or does not believe to be true,
is said to give false evidence.
Explanation 1.—A statement is within the meaning of this section, whether it is made verbablly or
otherwise.
Explanation 2.—A false statement as to the belief of the person attesting it within the meaning of
this section, and a person may be guilty of giving false evidence by stating that he believes a thing which
he does not believe, as well as by stating that he knows a thing which he does not know.
Illustrations
(a) A, in support of a just claim which B has against Z for one thousand rupees, falsely swears in a
trial that he heard Z admit the justice of B's claim. A has given false evidence.
(b) A, being bound by an oath to state the truth, states that he believes- a-"certain signature to be
the handwriting of Z, when he does not believe it to be the writing of Z. Here A states that which he
knows to be false, and therefore, gives false evidence.
(c) A, knowing the general character of Z's handwriting, states that he believes a certain signature
to be the handwriting of Z ; A in good faith believing it to be so. Here A's statement is merely as to his
belief, and is true as to his belief, and therefore, although the signature may not be the handwriting of Z,
A has not given false evidence.
(d) A, being bound by an oath to state the truth, states that he knows that Z was at a particular
place on a particular day not knowing anything upon the subject. A gives false evidence whether Z was at
that place on the day named or not
(e) A, an interpreter or translator, gives or certifies as a true interpretation or translation of a
statement or document, which he is bound by oath to interpret or translate truly, that which is not and
which he does not believe to be a true interpretation or translation. A has given false evidence.
COMMENT
Ingredients.—The following are ingredients of the offence under this section :—
(1) A person must be legally bound :—
(a) by an oath, or any express provision of law, to state the truth; or
(b) to make a declaration upon any subject.
(2) He must make a false statement.
(3) He must :—
(a) know or believe it to be false, or
(b) not believe it to be true.
Legally bound by an oath etc.—False evidence to be punishable must be given in a
proceeding in which the accused was bound by law to speak truth. 1 If the Court has no authority to
administer an oath the proceeding will be coram non judice and a prosecution for false evidence
cannot stand.2 Similar will be the case where a Court is acting beyond its jurisdiction.1
1. A.I.R. 1922 Lah. 133.

2. Abdul Majid v. Krishna Lai Nag; (mi) 20 Cal. 724.
An oath or a solemn affirmation is not a sine qua non in the offence of giving false
evidence.2 The offence may be committed although the person giving evidence has neither been
sworn nor affirmed.3 When in a Court a person binds himself on oath to state the truth he cannot say
that as he was not bound under law to go into the witness-box or make an affidavit, a false
statement which he had made after the oath is not covered by this section.4
There must also be specific provision of law compelling a person to state the truth. Where
the accused is not bound by an express provision of law to state the truth he cannot be charged with
giving false evidence.5
To make a declaration upon any subject.—In certain cases the law required a declaration
from a person of verification in a pleading; such a declaration if made falsely will be covered by
this section.
False statement.—Under this section it is not necessary that the false evidence should be
concerning a question material to the decision of the case; it is sufficient if the false evidence does
not bear directly on a material issue in the case being relative to incidental or trivial matters only,
that would be a matter to be taken into consideration in fixing the sentence.6
Degrees of knowledge.—This section deals with three degrees of knowledge : (i) a
statement known to be false; (ii) a statement believed to be false, and (iii) a statement not believed
to be true. The question whether a statement was known to be false to the maker is one of fact,
which must be decided on the proved circumstances of each case. The falsity must be known to the
maker at the time of the making of the statement, for otherwise it is possible that he believed in his
statement at the time he made it and its falsehood was revealed to him later on. Similarly a
statement when made may be believed by the maker to be true. The burden of proving falsity of the
statement is on the prosecution.7 The accused must be established to make a statement which was
false or which he knew to be false or not to have believed it to be true.8
Abetment of giving false evidence.—One person instigating another to make a false
statement may not be guilty of giving false evidence, but he will be guilty of the abetment of that
offence. A person would be liable for abetment when it is shown that he instigated the making of a
statement, and also that it was made falsely. 9 It would be abetment whether the abettor instigates
another to make a false statement or to suppress a true statement. A person asking a witness to
suppress certain facts in giving his evidence would be guilty of abetment under this section.10
Cases.—Declaration made by a person for obtaining a marriage twice falls under this section.11 The criminal intention to give false evidence must be
established.1 Where contradictory statements were made in the same deposition no offence of perjury can be made out.2 A witness falsely deposing in another's name is
1. Chait Ram, (1883) 6 All. 103.

2. (1865) 2 W.R. (Cr.) 9.
3. Ranjit Singh, A.I.R. 1959 S.C. 843.
4. Gobind-Chandra Seal, (1892) 19 Cal. 355.
5. Haricharan Singh, (1900) 27 Cal. 455.
6. A.I.R. 1933 All. 318.
7. Sakhawat Haider, A.I.R. 1920 AH. 242.
8. Mohammad Ishaq, 15 Cr. L.J. 579.
9. Kassim Khan, I.L.R. (1811) 7 Cal. 121.
10. Abdul Rashid Khan, 15 Cr. L.J. 221.
11. Kassim Khan, I.L.R. (1811) 7 Cal. 121.
guilty of giving false evidence.3 So also a person falsely verifying his plaint4 or a person's false return of the service of summons5 would be guilty of giving false evidence.
In Baban Singh v. Jagdish Singh? it was held by the Supreme Court that where a false affidavit is sworn by a witness in a proceeding before a Court, the offence would fall
under sections 191 and 192. It is the offence of giving false evidence or of fabricating false evidence for the purpose of being used in a judicial proceeding.
192. Fabricating false evidence.—Whoever causes any circumstance to exist or makes any false
entry in any book or record or electronic record or makes any document or electronic record containing
a false statement, intending that such circumstances, false entry or false statement may appear in
evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or
before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence,
may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an
erroneous opinion touching any point material to the result of such proceeding is, said "to fabricate false
evidence".
Illustrations
(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box, and
that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a
Court of Justice. A has fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in
imitation of Z's handwriting purporting to be addressed to an accomplice in such criminal conspiracy,
and puts the letter in a place which he knows that the officers of the police are likely to search. A has
fabricated false evidence.
COMMENT
The essence of this offence consists in endeavour to injure another by supplying false data
upon which a judicial decision may rest.
Ingredients.—The following are the ingredients of this offence :
1. Causing any circumstance to exist, or making any false entry in any book or
record, or making any document containing a false statement.
2. Doing one of the above acts with the intention that it may appear in evidence in a
judicial proceeding or in a proceeding taken by law before a public servant or an arbitrator.
3. Doing such act with the intention that it may cause any person who in such
proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion
touching any point material to the result of such proceeding.7
Judicial proceeding.—Judicial proceeding is defined in section 2 (i) of the Criminal
Procedure Code, 1973. However, for the application of this section it is not necessary that any
judicial proceeding should be pending at the time of fabrication. It would be sufficient that there is
a reasonable possibility of a judicial proceeding in future and the document is fabricated with an
intention to be used in that proceeding.1
1. Abdul Rashid Khan, 15 Cr. L.J. 221.

2. Gambhir Bhujua, A.I.R. 1927 Nag. 189.
3. Prema Bhika, (1863) 1 B.H.C. 89.
4. Luxmandas, (1869) Unrep. Cr. C. 25.
5. Shamachurn Roy, (1867) 8 W.R. (Cr.) 27.
6. A.I.R. 1967 S.C. 68.
7. Babu Lai, (1964) I Cr. L.J. 555 (S.C).
Public servant or arbitrator.—This section is not confined to judicial proceeding only, it

applies equally to a proceeding taken by law before a public servant. Such proceedings must'be
legal and authorised by law. This is necessary because there are very many public servants and their
proceedings are also varied and all of which may not enjoy legal protection. For example, a Forest
Officer is a public servant2 and is empowered to hold an enquiry into a forest offence and in the
course of such inquiry to receive and record evidence.3
Similarly an arbitrator is a judge appointed by the consent of the parties to adjudicate upon a
matter in controversy between them. Therefore, his proceedings are also judicial.
Fabrication of a material point.—The fabricated evidence must be material to the issue and
it must be such as to lead the Court or officer concerning to form an erroneous opinion touching
any material point. The false evidence under this section must be material to the case in which it is
given. The question whether a piece of evidence was material or not in a case depends upon the
circumstances of each case.
The evidence fabricated must be intended to be used in a judicial proceeding etc. and the
offence under this section is complete as soon as the fabrication is complete. It would be immaterial
that the proceedings had not commenced by that time 4 or the evidence fabricated has not been
actually used. Mere fabrication is made punishable. It is necessary that the evidence fabricated must
be admissible as evidence.5 It follows that the fact that a document would be ultimately
inadmissible in evidence must take out the offence out of this section. 6 Where a police officer made
a false entry in the special diary relating to a case which he was investigating, but the document in
which the alleged false entry was made was not one which was admissible in evidence, it was held
that he was not guilty. There is difference of opinion amongst the High Courts on this point as some
High Courts are of the opinion that it is the intention that creates the criminal offence and not the
facts as to whether, under the terms of the law, the document is admissible in evidence.
Forming of erroneous opinion.—There could be no fabrication if on the basis of the
fabrication no erroneous opinion could be formed touching any point material to the result of the
proceeding. In a case D purchased a plot correctly described by boundaries but wrongly numbered
as 10. After the registration of the document plot number was altered as 272. It was held that the
alteration was innocuous, as it was not intended to confuse the identity of the property sold, which
was otherwise sufficiently described. The alteration had, indeed, brought the deed in accordance
with the fact, and the accused could not, therefore, be convicted under section 196 read with this
section.7 In another case D made a hole in the wall of his own house, broke open a box belonging to
his uncle of whom he was the next heir and removed the contents, to which he believed himself
entitled but about which there was a dispute. He had done so with an intention to make it appear
that the articles were removed by thieves from outside. 'D' was tried for criminal misappropriation
and fabricating false evidence and it was held that D had committed no offence and that inasmuch
as D did not charge any one with having committed the theft, he could not be charged with the
fabricating of evidence under this section.8
Cases.—In a case D owed Rs. 1000/- to B. D sent an insured packet purporting to send
currency notes in full settlement of the debt, but the addressee on opening it found to contain waste
1. Rajaram, (1920) 22 Bom. L.R. 1229.
2. Section 72, Forest Act, 1878.
3. Section 71, Forest Act. 1878.
4. Mula, (1879) 2 All. 105.
5. Zakir Hussain, (1898) 21 All. 159.
6. But a contrary opinion had been expressed in Mahesh Chandra Dhupi, (1940) 1 Cal. 465.
7. Fateh, LL.R. 5 All. 217 per Mahmud, J.
8. Thewa Ram, 10 C.L.R. 187.
paper instead of currency notes. B filed a suit for the recovery of amount due and was confronted
with the receipt of the insurance letter. It was held that the postal acknowledgment was a
circumstance caused to exist within the meaning of this section. 1 In another case B was in
possession of C's house as a yearly tenant. At about the time the tenancy came to an end B prepared
another rent note for a period of four years and got it registered without C's knowledge. It was held
that B had fabricated false evidence inasmuch as the rent-note, which contained an admission
against the interest of the accused, could be admitted in evidence on his behalf. 2 In Legal
Remembrancer v. Ahi Lai Mondal? the accused wanted to marry one D. Having been unsuccessful in
his attempt he made and registered a writing in her favour falsely reciting that he had married her,
and purporting to convey to her a plot of land in lieu of dowry. It was held that the accused had
acted in furtherance of his desire to obtain her person, that as this could under the circumstances be
done only by judicial proceedings, his intention was to use the document, with its false statements
in a judicial proceeding and thereby to mislead the Court, and that he was, therefore, guilty of an
Attempt.—In a case where the facts revealed that the accused had dug a hole intending to
place salt therein, in order that the discovery of the salt so placed might be used in evidence against
his enemy in a judicial proceeding, it was held that the accused was guilty of an attempt to fabricate
false evidence.4
Abetment.—In a case B instigated C to personate D and to purchase in D's name a stamped
paper, in consequence of which the vendor of the stamped paper endorsed D's name on the paper as
the purchaser of it. B acted with the intention that such endorsement might be used against D in a
judicial proceeding. It was held that B was liable for abetment to fabricate false evidence.''
193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a
judicial proceeding or fabricates false evidence for the purpose of being used in any stage of a judicial
proceeding, shall be punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to tine ;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1.—A trial before a Court-martial is a judicial proceeding.
Explanation 2.—An investigation directed by law preliminary to a proceeding before a Court of Justice,
is a stage of judicial proceeding, though that investigation may not take place before a Court of Justice.
Illustration
A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for
trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of judicial proceeding, A
has given false evidence.
Explanation 3.—An investigation directed by a Court of Justice according to law, and conducted under
the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take
place before a Court of Justice.
Illustration
A, in an enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land,
1. Kunju, A.I.R. 1927 Mad. 199.
2. Rajaram, (1920) 22 Bom. L.R. 1229.
3. (1921) 48 Cal. 911.
4. Nunda. (1872) 4 M.W.P. 133.
5. Mala, (1879) 2 All 105; Durga Charan Giri, (1902) 25 All. 75.
makes on oath a statement which he knows to be false. As this enquiry is a stage of judicial proceeding, A has
given false evidence.
COMMENT
This section deals with punishment for giving false evidence or fabricating false evidence.
The first para applies only to cases in which the false evidence is given in a judicial proceeding, the
second in all other cases. If the offence is committed in any stage of judicial proceeding it is more
severely punishable than when it is committed in non-judicial proceeding. A person who tenders
false evidence or fabricates false evidence must do so intentionally. It is nowhere necessary that the
false statement should be material to the case.
In Re, Suo Motu Proceedings against Mi: R. Karuppan,1 the respondent Mr. R. Karuppan
filed a writ petition in the name of Madras High Court Advocates Association proclaiming himself
to be its President and praying for issuance of quo warranto against the Hon'ble Chief Justice of
India. He also prayed to determine the age of the first respondent (i.e. Chief Justice of India) in the
writ petition as 1-11-1934 and further that the first respondent had attained the age of
superannuation on 31st October, 1999 and had ceased to hold office since then. In support of
averments made in the writ petition Mr. Karuppan also filed an affidavit.
Before the matter was taken up for admission the registry of the Supreme Court received a
petition signed by a number of Advocates claiming to be the members of the said Association and
alleging that the Association had not authorised the respondent to file any writ petition in the name
of the Association.
The petitioner though has represented another advocate who has disputed age of Chief
Justice of India earlier in contempt proceedings. As yet he made statement in the petition supported
by affidavit that President has not determined age of C.J.I. It was .held that the statement made by
petitioner was known to him to be false and/of^-at least did not believe to be true. The petitioner
has prima facie made false statement. Therefore the Supreme Court issued direction to file
complaint under section 193 against petitioner.
The Appex Court further observed that incorporation of offences relating to giving of false
evidence against public justice in Penal Code was based upon recognition of decline of moral
values and erosion of sanctity of oath. Therefore, effective and stern action is required to be taken
for preventing the evil of perjury. Courts should stop taking an evasive recourse despite proof of
such offence.
In State of M.P. v. Badri Yadav,2 two persons were examined by prosecution as eye-
witnesses on 18-12-1990, cross- examined and discharged. They were recalled in exercise of power
under Section 233(3) Cr.P.C. and examined as DW-I and DW-2 on'behalf of the accused on 17-7-
1995. This was for the purpose of defeating the ends of justice, which is nol permissible under the
law. Moreover both the prosecution witnesses are relative of the deceased. Therefore there is no
reason to depose falsely against the accused and allowing the real culprit to escape unpunished. On
21-9-1989 their statements were recorded under Section 164 Cr.P.C. before the Magistrate. On 18-
12-1990 their depositions were recorded before the Sessions Judge. In both the statements they had
stated that they were eye-witnesses and witnessed the occurrence. Both stated that they saw the
accused assaulting the deceased with knives and swords. After a long span of time the two
prosecution witnesses filed false affidavits stating that they were coerced and tutored by police.
They were examined as defence witness on 17-07-1995 when ihcy resiled completely from
previous statements as prosecution witnesses.
1. 2001 Cri. L.J. 2611 (S.C).

2. 2006 Cri L.J. 2128 (S.C).
It was held that their subsequent statements were concocted and after-thought. They were
either won over or were under threat or intimidation from the accused. Hence they were held liable
for the offence of perjury for giving false evidence punishable under Section 193 I.P.C.
194. Giving or fabricating false evidence with intent to procure conviction of capital
offence.—Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it
to be likely that he will thereby cause, any person to be convicted of an offence which is
capital by the law for the time being in force in India, shall be punished with imprisonment
for life or with rigorous imprisonment for a term which may extend to ten years, and shall
also be liable to line ;
if innocent person be thereby convicted and executed.—mid if an innocent person be convicted and
executed in consequence of such false evidence, the person who gives such false evidence shall be punished
either with death or the punishment hereinbefore described.
COMMENT
In this section an aggravated form of offence of giving or fabricating false evidence under
section 193 is made punishable. If a person gives or fabricates false evidence intending thereby to
cause some person to be convicted of a capital offence, commits an offence under this section.
The second para of the section provides for more severe punishment if an innocent person is
convicted and executed in consequence of such false evidence.
195. Giving or fabricating false evidence with intent to procure conviction of offence
punishable with imprisonment for life or imprisonment.—Whoever gives or fabricates false
evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any
person to be convicted of an offence which by the law for the time being in force in India is
not capital, but punishable with imprisonment for life, or imprisonment for a term of seven
years or upwards, shall be punished as a person convicted of that offence would be liable to
be punished.
Illustration
A gives false evidence before a Court of Justice, intending thereby to cause Z to be convicted of dacoity.
The punishment of dacoity is imprisonment for life, or rigorous imprisonment for a term which may extend to
ten years, with or without fine. A, therefore, is liable to imprisonment for life or imprisonment with or without
fine.
COMMENT
In this section if a person gives or fabricates false evidence intending thereby to cause some
person to be punished with imprisonment for life or imprisonment for a term of seven years or
upwards, he shall be punished. This section is similar to the preceding section except as regards the
gravity of offence. The preceding section deals with offences punishable with death, this section
deals with perjury of an offence punishable with imprisonment for life or imprisonment for a term
of seven years or upwards.
195-A. Threatening or inducing any person to give false evidence.—Whoever threatens another with
any injury to his person, reputation or property or to the person or reputation of any one in whom that person is
interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with both;
and if innocent person is convicted and sentenced in consequence of such false evidence, with death or
imprisonment for more than seven years, the person who threatens shall be punished with the same punishment
and sentence in the same manner and to the same extent such innocent person is punished and sentenced.'
196. Using evidence known to be false.—Whoever corruptly uses or attempts to use as
true or genuine evidence any evidence which he knows to be false or fabricated, shall be
punished in the same manner as if he gave or fabricated false evidence.
I . Inserted by the Criminal Law (Amendment) Act, 2006 (Act No. 2 of 2006).
COMMENT
In this section a person who uses evidence known to be false shall be punished. The section
applies to those who make use of such evidence as is made punishable by sections 193, 194 and
195.
197. Issuing or signing false certificate.—-Whoever issues or signs any certificate required
by law to be given or signed, or relating to any fact of which such certificate is by law
admissible in evidence, knowing or believing that such certificate is false in any material point,
shall be punished in the same manner as if he gave false evidence.
COMMENT
Under this section if a person issues or signs a false certificate, he is put on the same footing
as the offence of giving false evidence. The certificate must, however, be false in material point.
The section consists of two ingredients, namely.—
(1) Issuing or signing of a certificate—
(a) required by law to be given or signed, or
(b) relating to a fact of which such certificate is by law
admissible in evidence.
(2) Such certificate must have been issued or signed knowing or
believing that it is false in any material point.
In Haladhara Karji v. Dileswar Subudhi,1 it was held that a caste certificate issued by the
M.L.A. without specifying caste or tribe of applicants for the purpose of enabling the students to
obtain pre-metric scholarships is not certificate within the meaning of Section 197, I.P.C. When
there was no material or record for coming to a conclusion that the certificates issued were false or
the accused issued them knowing or believing that the certificate are false it would not constitute an
offence under Section 197 IP. Code.
198. Using as true a certificate known to be false.—Whoever corruptly uses or attempts
to use any such certificate as a true certificate, knowing the same to be false in any material
point, shall be punished in the same manner as if he gave false evidence.
COMMENT
This section is connected with Section 197 just as Section 196 is connected with Sections
193, 194 and 195.
199. False statement made in declaration which is by law receivable as
evidence.—Whoever, in any declaration made or subscribed by him, which declaration any
Court of Justice, or any public servant or other person, is bound or authorised by law to
receive as evidence of any fact, makes any statement which is false, and which he either knows
or believes to be false or does not believe to be true, touching any point material to the object
for which the_ declaration is made or used, shall be punished in the same manner as if he
gave false evidence.
COMMENT
This section provides punishment for false statement made in declaration which is by law
receivable as evidence. The section has following three essentials :—
(1) Making of declaration which a court or a public servant is bound or authorised
by law to receive in evidence.
(2) Making of a false statement in such declaration knowing or believing it to be
false.
(3) Such false statement must be touching any point material to the object for which
the declaration is made or used.
In Deputy General Manager, Inter State Bus Terminal v. Sudershan Kumari,2
1. 1989 Cri. .L.J. 629 (Orissa).

2. 1997 Cri. L.J. 1931 (S.C).
an affidavit filed by the respondent and attested by a Notary was found to be false. A notice was
issued to the Notary for attesting the false affidavit but it was reported by the Registry of Tis Hazari
Court that there was no such Notary in that name. Hence the counsel for respondent was directed to
ask his client to give the name of the Notary lest proceedings would be initiated against ber for
submitting a false affidavit. Since there was no response from the respondent, therefore, Mrs.
Sudershan Kumari was convicted under Section 199, I.R Code for producing a false certificate and
false affidavit.
200. Using as true such declaration knowing it to be false.—Whoever corruptly uses or
attempts to use as true any such declaration, knowing the same to be false in any material
point, shall be punished in the same manner as if he gave false evidence.
. Explanation.—A declaration which is inadmissible merely upon the ground of some informality, is a
declaration within the meaning of sections 199 and 200.
COMMENT
In this section a person who uses a false declaration is made liable as one who makes it. The
section is connected with the preceding section just as Section 198 is with section 197 or Section
196 with Sections 193, 194 and 195.
201. Causing disappearance of evidence of offence, or giving false information to screen
offender.—Whoever, knowing or having reason to believe that an offence has been committed,
causes any evidence of the commission of that offence to disappear, with the intention of
screening the offender from legal punishment or with that intention gives any information
respecting the offence which he knows or believes to be false ;
if a capital offence—shall, if the offence which he knows or believes to have been committed is
punishable with death, be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine ;
;/ punishable with imprisonment for life—and if the offence is punishable with imprisonment for life, or
with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for
a term which may extend to three years, and shall also be liable to fine ;
if punishable with less than ten years' imprisonment.—and if the offence is punishable with
imprisonment for any term not extending^to ten years, shall be punished with imprisonment of the description
provided for the offence, for a term which may extend to one-fourth part of the longest term of the
imprisonment provided for the offence, or with fine, or with both.
Illustration
A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from
punishment. A is liable to imprisonment of either description for seven years, and also to fine.
COMMENT
Object.—This section deals with the disappearance of any evidence of the commission of an
offence and includes also the giving of false information with the intention of screening an offender
from legal punishment. Sections 202 and 203 relate lo the giving or omitting to give such
information and section 204 to the destruction of documentary evidence.
This section is intended to cover those acts which are beyond the scope of sections 193 and
195 and does not include acts falling under those sections.1
Scope.—The Supreme Court in case of Kalawati,2 has held that the scope of this section is not limited to the case of a person who screens the actual offender it
can be applied to a person guilty of the main offence, though as a matter oi practice, a court will not convict a person both of the main offence and under this section.
However, if the commission of the main offence is not brought home to theaccused, then he can be convicted under this section.' In those cases, where it is difficult to
conclude that a person has committed the principal offence he cannot escape under this section merely because there are grounds for suspicion that he might be the principal
culprit.2
1. Mussammat Sharina, (1884) P.R. No. 42 of 1884.

2. (1953) S.C.R. 546 at p. 557.
In Begu v. King Emperor? it was laid down by the Privy Council that a person accused of
murder could be convicted under this section without any further charge. In this case, five persons
were charged under section 302 with murder, and two of I hem were convicted. It was established
by the evidence that the other three had assisted in removing the body, knowing that a murder had
been committed. As such, they were convicted under this section without making any further
charge. A person cannot be held liable under the section for a statement given to the Police, which
may ultimately turn out to be false.4
In case of Palvinder Kaur: the Supreme Court made it clear that where the evidence showed
that a person had died and his body was found in a trunk and discovered in a well, and that the
accused had taken part in the disposal of the body but there was no evidence to show the cause of
his death, or the manner of circumstances in which it came about, it was held that the accused could
not be convicted for an offence under this section.
Ingredients.
Following are the ingredients of this section :—
1. Knowing or having reason to believe that an offence has been committed,
2. Causing the disappearance of any evidence of the commission of that offence,
with the intention of screening the offender from legal punishment, or
3. With the intention of screening the offender from legal punishment gives any
information respecting the offence which he knows or believes to be false.
Knowing or having reason to believe that an offence has been committed. —For conviction under
this section it must be proved that an offence, the evidence of which the accused is charged with
causing to disappear, has actually been committed 6 and that the accused knew, or had sufficient
information to lead him to believe, that the offence had been committed.7
Intention of screening the offender. —Under this section the intention to screen the offender
must be the primary and sole object of the accused. The fact that the concealment was likely to
have that effect is inadequate."
Help rendered to conceal crime. —Where a person because of fear did not interpose to prevent
the commission of a murder but afterwards helped the murderers in concealing the body, it was
held that he was guilty of an offence under this section. 9 A person is prima facie guilty under this
section if he assists the actual murderers in removing the dead body to a distance from the place of
occurrence unless he can establish that he acted under compulsion.4" In Abdul Rajjak v. Nanhey
1. Nebti Mondal, (1939) 19 Pat. 369.
2. Public Prosecutor v. Venkatamina. (1932) 56 Mad. 63.
3. (1925) 52 I.A. 191.
4. Markose, (1962) 1 Cri. L.J. 610.
5. (1953) S.C.R. 94.
6. Abdul Kadir, (1880) 3 All. 279 (F.B.).
7. Matuki Misser, (1885) 11 Cal. 619.
8. Jamnadas, (1963) 1 Cri. L.J. 433.
9. Goburdhun Bera, (1866) 6 W.R. (Cr.) 80.
10. Autar, (1924) 47 All. 336; Begu, (1925) 52 l.A. 191; followed in' A/a to Din, (1929) 5 Luck.
225.
and others' Nanhey rrid Bandu were charged of committing a murder, it was alleged thai they killed
the deceased in the morning at 10 when he was going to sell clothes in the market. After
committing murder, they severed his head from the body and carried with them. Some persons saw
this incident and they shouted. The accused contended that they did not commit crime. Those who
wanted them to be punished have incorporated their names in the crime. The Supreme Court
refused to accept this contention and held that where the witnesses have no interest in the crime and
where there is no motive to tell a lie, there must be solid base to refuse the evidence. Their evidence
cannot be refused merely by saying that it was erroneous. In Kora Ghaz'i v. Orissa State? it was held
that in the absence of sufficient evidence a person cannot be punished under this section.
In Vijaya v. State of Maharashtra? one Usha was married to accused no. 1 (A-l) brother of
the appellant (A-2) on 16-5-1989. After marriage she came to the house of her parents on 18-5-
1989 and was again brought to the house of A-l after 4-6-1989. Appellant (A-2) was given in
marriage on 15-5-1989 and had come to her brother's (A-l) house. On the fateful day of 24-6-1989
A-l and his wife Usha were sleeping in one room and A-2 was sleeping in another room of the
house. On 24-6-1989, father of Usha (deceased) came to know that his daughter was burnt to death,
though A-l told him that she committed suicide which deceased's father did not believe. The
prosecution case is that the dead body of deceased was found in kitchen. It was alleged that both A-
l and A-2 gave wrong information to the police about the incident. Both A-l and A-2 faced trial
under sections 302, 304-B, 498-A and 201 Indian Penal Code. The trial court acquitted appellant of
offences under sections 302, 304-B and 498-A but held guilty under section 201, Indian Penal Code
but A-l was held guilty under sections 302 and 201, Indian Penal Code. Both appealed to the High
Court but appeals were dismissed. Special leave petition filed by A-1 in the Supreme Court was
also dismissed. The present appeal has been preferred by A-2.
It was held by the Supreme Court that in the present case in addition to the fact that the
appellant A-2 has been acquitted of the charges relating to section 302, Indian Penal Code, there is
41984 Cri. L.J. 187 (S.C).

no material to bring in application of section 201 by allributing knowledge of the commission of the
offence to her. Further charges framed against her were for causing disappearance of evidence. In
view of the court Section 201, Indian Penal Code consists of two parts i.e., (1) causing
disappearance of evidence; and (2) giving false information to screen offender.
It was further held that section 201 requires that the accused must have had the intention of
screening the offender. In other words the intention to screen the offender must be the primary and
sole object of the accused. The fact that the concealment was likely to have that effect is not
sufficient, for section 201 speaks of intention as distinct from a mere likelihood. The ingredients of
section 201 are as follows :
(i). that an offence has been committed;
(ii) that the accused knew or had reason to believe the commission of
such an offence;
(iii) that with such knowledge or belief he :—
(a) caused any evidence of the commission of that offence to disappear; or
(b) gave any information relating to that offence which he then
knew or believed to be false.

2. 1983 Cri. L.J. 692 (S.C).
3. 2003 Cri. L.J. 4318 (S.C).
(iv) that he did so as aforesaid with the intention of screening the offender from
legal punishment.
In the present case admittedly the appellant was sleeping in a different room. Since the death
was by burning, the question of causing disappearance of evidence does not arise. It was also
pointed out that conviction under section 201 is permissible notwithstanding the acquittal of
accused under section 302. But in this case there is no evidence on record to attribute knowledge of
commission of offence under section 201 to accused. Therefore conviction under section 201,
Indian Penal Code is not sustainable.'
In Ravindra Kumar v. State of Bihar,2 one Navin Kumar who suffered certain injuries was
referred by the police to the petitioner a medical officer, for medical examination. He submitted an
injury report stating the nature of injuries as simple and caused by hard blunt substance. Lateron he
referred the injured to Sadar Hospital for X-ray and report. X-ray report suggested gun shot injury.
In the course of treatment of wounds metal like hard substances were taken out by the petitioner
which were preserved and sent to Investigating Officer. The petitioner was prosecuted under
Section 201 for screening the offender by submitting a false injury report. But the Patna High Court
held that the prosecution of the petitioner, if allowed to continue would be an abuse of the process
of the Court. In its view the petitioner had no criminal intention to suppress the nature of injuries to
help the accused. The conduct of the petitioner proved his innocence and good faith inasmuch as he
referred the injured for X-ray and metal like hard substances found by him from the wounds were
sent by him'to the Investigating Officer.
In Mahesh Mahto v. State of Bihar? Umcsh Mahto (A-l), Mahesh Mali to (A-2) and Ram
Dulari Devi (A-3) were charged for committing murder of Meera Devi, wife of Umesh Mahto.
Meera Devi was married to Umesh Mahto. Umesh Mahto demanded a scooter but the said demand
could not be fulfilled by the brother of Meera Devi due to financial difficulties. The accused
persons also made demand for some other articles. Some demands were fulfilled but the harassment
to Meera Devi continued. On 12-9-1984 Ram Vinod Prasad went to Ram Deo Mahto.to pay him the
cost of furniture and thereafter both of them went to the house of Umesh Mahto. When they
enquired about Meera Devi one Bisheshar Mahto told them that she is not in the house since last
three days. None of the inmates of the house was able to give information about Meera Devi. On
inquiry an old lady of the village told Ram Deo Mahto that on Sunday last all the three accused
persons committed murder of Meera Devi and threw her dead body in river Gandak. Ram Vinod
Prasad lodged F.I.R. but the police could not trace the body. However, Ram Vinod Prasad and his
brother continued the search and ultimately the dead body of Meera Devi was found at the bank of
river Gandak on 15-9-1984. The post mortem report indicated chest injuries which were sufficient
to cause death in the ordinary course of nature. The appellant, Mahesh Mahto was younger brother
of Umesh Mahto. There was no evidence on record that the appellant was causing any harassment
or assaulting Meera Devi. In view of the Supreme Court the prosecution failed to prove beyond
reasonable doubt the complicity of the . appellant in committing murder of Meera Devi. But as far
the question of carrying dead body with elder brother, Umesh Mahto and throwing it into river is
concerned there was sufficient evidence in support of it. One Chintaman Mahto, an operator in
Irrigation Department, had seen four persons carrying the dead body on the cot. He had inquired
1. 2003 Cri. L.J. 4318 (S.C).

2. 1991 Cri. L.J. 3052 (Pat).
3. 1997 Cri. L.J. 4402 (S.C).
them whose dead body it was then they told him that it was of some woman. Therefore it was held
that conviction under Section 201 read with Section 34, IP. Code is proper as there was trustworthy
evidence to this effect. Since the accused/appellant was only 18 years old and was living with his
brother at the time of incident, the possibility of having been pressurised by his brother cannot be
ruled out, therefore, the sentence of 7 years' imprisonment was reduced to period already
undergone.1
In Sanjiv Kumar v. State of Hhnacltal Pradesh,2 accused Sanjiv Kumar was nephew of
Kamlesh. Sanjiv Kumar was alleged to have committed murder of Rajesh Sharma. It is stated that
father of deceased Rajesh was posted as Public Prosecutor of Bilaspur. Accused Kamlesh had four
daughters and her eldest daughter Chanchal was class-mate of deceased Rajesh and had developed
some intimacy with him. PW-19, father of deceased did not approve this relationship and once he
requested Kamlesh to refrain her daughter from meeting the deceased. But Kamlesh told PW-19
that he should restrain his son from meeting Chanchal. It was alleged that several threats were
given by Kamlesh and1 Sanjiv to deceased. After committing murder Sanjiv Kumar went to the
house of PW-2 Sapna when his clothes were blood-stained and he requested Sapna to get clothes
being changed from house of Kamlesh. Blood-stained clothes were recovered from Kamlesh's
house. It was held that in view of the fact that Kamlesh handed over set of clothes to Sapna for
main accused Sanjiv Kumar and also that Kamlesh resisted police and other witnesses from
searching her house and she gave a wrong statement about accused that he had been given beating
by some boys and was not traceable and recovery of blood-stained clothes from her house were
sufficient for her conviction under section 201, Indian Penal Code."'
In V.L. Tresa v. State of Kerala? the accused was the wife of the deceased. Deceased, his
wife and their minor child were only inmates of house where incident occurred. As per version of
the accused-wife deceased tried to commit suicide by putting a rope on his neck and while
attempting to do so by reason of an effort to stop him from doing so, the deceased fell on blunt
object and hit himself which caused his death. However, on subsequent discovery and search a
crow bar was found from the said house containing human blood which was proved to be of
deceased. It was held that the circumstances within which deceased died were within the special
knowledge of the accused. It was a deliberate attempt by her to screen offender from legal
punishment by way of providing false information regarding offence. Even if fatal injury was
inflicted on deceased by somebody else, the accused would be liable to be convicted for offence
under section 201, Indian Penal Code. Therefore the conviction of the accused under section 201,
Indian Penal Code was upheld by the Supreme Court.
In Prakash Dhawal Khairnar v. State of Maharashtra? there was dispute between two
brothers with regard to partition of agricultural land and deceased was evading in giving share of
the land to accused. The accused was alleged to have fired gunshots in the house of deceased and
caused deaths of all family members of deceased, his brother including his mother. It was alleged
that the son, co-accused had seen his father, main accused committing multiple murders and he
destroyed evidence relating to those murders by throwing articles from bridge on two separate
occasions. Circumstantial evidence did not establish that there was any common intention or
conspiracy between father and son to commit the offence. Thus proved circumstances did not
involve co-accused for offence punishable under section -302, Indian Penal Code. There was
1. Mahcsh Mahto v. State of Bihar, 1997 Cri. L.J. 4402 (S.C).
2. 1999 Cri. L.J. 1138 (S.C).
3. Sanjiv Kumar v. State of Himachal Pradesh. 1999 Cri. L.J. 1138 (S.C).
4/ 2001 Cri. L.J. 1171 (S.C).
5. 2002 Cri. L.J. 928 (S.C).
sufficient evidence to show that the son destroyed evidence relating to murders with primary object
of saving his father. Therefore, he was held liable to be convicted for offence under section 201,
Indian Penal Code.
In Budhan Singh v. State of Bihar? on 14-1-1979 at about 7 p.m. when Md. Saudagar along
with his co-villagers, Syeduddin, PW-2, Allauddin, PW-3, Deonath Paswan, PW-9 and Lakhan
Paswan (Since deceased), were returning from Rajghat Mela, the accused Devi Dayal Singh,
Mathura Singh, Saijug Singh and Chuta Singh met them in the way, whereupon Syeduddin asked
the accused Devi Singh as regards their identity to which one of them replied that he was his father.
Altercation and abuses, thereafter, followed between both the parties. Devi Dayal and Sarjug Singh
were said to be having country made pistols with them, Chuta Singh had a rifle and Mathura Singh
had a double barrel gun. They threatened to shoot Md. Saudagar and his companions, whereafter
they ran away towards their village raising alarm 'chor-chor'. On hearing alarm Mister Mian
(deceased) brother of Md. Saudagar and several other villagers rushed whereupon Devi Dayal
allegedly ordered to fire shots pursuant whereto four persons were said to have fired shots which hit
the deceased Mister Mian. He fell on the agricultural field. The accused persons thereafter ran
away. The deceased was brought on a cot by Deo Nath Paswan (PW-9), Md. Amanullah PW-8,
Jakiuddin, PW-7, Allauddin PW-3, Amiruddin PW-10 and others at about 8 p.m.
The accused persons snatched away the deceased Mister Mian along with the cot at the point
of arms whereupon people from village Shahpur including Mithila Sharan Singh (PW-1) arrived.
Police was informed and dead body of deceased was recovered from a field situated about 750
yards away from the place from where the dead body was allegedly snatched away.
It was held by the Supreme Court that the above circumstances show that the accused had
knowledge of commission of assault and they knowingly caused disappearance of evidence of
offence and as such were guilty of offence under Section 201 I.P.C.
It was further held that since the accused/appellants, Budhan Singh, Rajendra Singh,
Surendra Singh, Jagdish Singh and Arjun Singh were all aged more than 70 years and were not
connected with the first part of occurrence, the interest of justice would be served if they are
sentenced and each of them who were in custody to the period already undergone by them.
It was held in Jayendra Saraswathy Swamigal v. State of Tamil Nadu? that necessary
ingredient of offence under Section 201, I.P.C. is actually causing any evidence of commission of
offence to disappear. Judged by applying this standard oral threat or inducement allegedly given by
lawyers to approver not to give any statement against accused cannot amount to commission of
offence under Section 201, I.P.C.
202. Intentional omission to give information of offence by person bound to inform.—Whoever,
knowing or having reason to believe that an offence has been committed, intentionally omits to give any
information respecting that offence which he is legally bound to give, shall be punished with imprisonment of
either description for a term which may extend to six months, or with tine or with both.
COMMENT
This section prescribes punishment for illegal omission to give information by those who are
bound by some law to give information, when such omission is intentional. It is similar to Section
176.
1. 2006 Cri. L.J. 2451 (S.C).
2. 2005 Cri. L.J. 4626 (S.C).
203. Giving false information respecting an offence committed.—Whoever, knowing or
having reason to believe that an offence has been committed, gives any information respecting
that offence which he knows or believes to be false, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.
Explanation.—In sections 201 and 202 and in this section the word "offence" includes any act
committed at any place out of India, which, if committed in India, would be punishable under any of the
following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457,
458, 459 and 460.
COMMENT
This section attaches liability to any one who gives false information whether he is legally
bound to furnish such information or not. The object behind the section is to discourage and punish
the giving of false information to the Police in regard to offences which are actually committed and
which the person charged with knows, or has reason to believe, has been actually committed.
204. Destruction of document to prevent its production as evidence.—Whoever secretes or
destroys any document or electronic record which he may be lawfully compelled to produce
as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant,
as such, or obliterates or renders illegible the whole or any part of such document or electronic
record with the intention of preventing the same from being produced or used as evidence
before such Court or public servant as aforesaid, or after he shall have been lawfully
summoned or required to produce the same for the purpose, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine,
or with both.
COMMENT
This section deals with secretion or destruction of a document which a person may lawfully
be compelled to produce in a court. The offence under this section is an aggravated form of the
offence punishable under Section 175 which deals with omission to produce or deliver up any
document to any public servant. The section has its application in the proceedings of both civil and
criminal nature. A person may secrete a document not only when the existence of the document is
unknown to other persons but also when the existence of the document is known to others.'
Secreting document.—The plaintiff was held liable under this section when he, in an
arbitration proceeding, with a view to prevent a witness from referring to an endorsement on a
bond, snatched up the bond which was lying beside the arbitrator, ran away and refused to produce
it.2
Destroying document.—-A Police Officer was held guilty under the section where he took
down at first report of the commission of a dacoity made to him, but subsequently destroyed that
report and framed another and a false report of the commission of a totally different offence.3
205. False personation for purpose of act or proceeding in suit or prosecution.—Whoever
falsely personates another, and in such assumed character makes any admission or statement,
or confesses judgment, or causes any process to be issued or becomes bail or security, or does
any other act hi any suit or criminal prosecution, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.
COMMENT
The offence contemplated under this section is not merely cheating by using a fictitious
name, but by falsely assuming to be some other real person and in that character making an
admission, confessing judgment, or causing any process to be issued, etc.
It was held in Suppakon,' that any fraudulent gain or a benefit to the offender is not an
1. Susenbihari Ray, (1930) 58 Cal. 1051 (F.B.).
2. Subramania Ghanapati, (1881) 3 Mad. 261.
3. Muhammad Shah Khan, (1898) 20 All. 307.
essential element of the offence under Section 205. In this case, A personated B at a trial with B's
consent in order to save himself from the trouble of making an appearance in person before a
Magistrate, it was held that A was guilty of an offence under this section, and B was guilty of
abetment of the offence.
Personation of imaginary person.—As to the question, whether a person commits an
offence under this section by personating as purely imaginary person, there is a set of conflicting
opinion. In case of Bhitto Kahar,2 the Calcutta High Court has held that a person by such
personation commits an offence under this section. On the other hand, the Madras High Court has
held that it is not sufficient to show the assumption of fictitious name but it must also appear that
the assumed name was used as a means of falsely representing some other individual.3
206. Fraudulent removal or concealment of property to prevent its seizure as forfeited or
in execution.—Whoever fraudulently removes, conceals, transfers or delivers to any person any
property or any interest therein, intending thereby to prevent that property or interest therein
from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been
pronounced, or which he knows to be likely to be pronounced, by a Court of Justice or other
competent authority, or from being taken in execution of a decree or order which has been
made, or which he knows to be likely to be made by a Court of Justice in a Civil suit, shall
COMMENT
Sections 206, 207 and 208 have the effect of rendering criminal all collusive modes by
which creditors, or lawful claimants may be defeated of the just remedies. The concealment or
removal of property as contemplated under this section must be to prevent the property from being
taken. The offence under this section is not committed if the property is already taken and the
removal is subsequent.4 This section will have no application, where the removal was open and
without any element of secrecy or deception.5
A creditor is not liable under this section who anticipates other creditors and obtains a
discharge of his debt by the assignment of any property which has not already been attached by
another creditor.6
207. Fraudulent claim to property to prevent its seizure as forfeited or in
execution.—Whoever fraudulently accepts, receives or claims any property or any interest
therein, knowing that he has no right or rightful claim to such property or interest or practises
any deception touching any right to any property or any interest therein, intending thereby to
prevent that property or interest therein, from being taken as a forfeiture or in satisfaction of
a fine, under a sentence which has been pronounced, or which he knows to be likely to be
pronounced by a Court of Justice or other competent authority, or from being taken in
execution of a decree or order which has been made, or which he knows to be likely to be
made by a Court of Justice in a civil suit, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
COMMENT
This section provides punishment to the receiver, acceptor or claimer of property who tries to
prevent its seizure as a forfeiture. Thus, it punishes the accomplice in the same manner as the
1. (1863) 3 M.H.C. 450.
2. (1862) 1 Ind. Jur. O.S. 128.
3. Kadar Ravuttan, (1868) 4 M.H.C. 18. >
4. Murli, (1888) 8 A.W.N. 237.
5. Kudumban v. Dinukaran, 1962 Cr. L.J. 555.
6. Appa Mallya, (1876) Unrep. Cr.C. 110.
preceding section punishes the principal offender.

208. Fraudulently suffering decree for sum not due.— Whoever fraudulently causes or
suffers a decree or order to be passed against him at the suit of any person for a sum not
due or for a larger sum than is due to such person or for any property or interest in property
to which such person is not entitled, or fraudulently causes or suffers a decree or order to be
executed against him after it has been satisfied, or for anything in respect of which it has
been satisfied, shall be punished with imprisonment of either description for a term which may
Illustration
A institutes a suit against Z. Z knowing that A is likely to obtain a decree against him fraudulently
suffers a judgment to pass against him for a larger amount at the suit of B, who has no just claim against
him, in order that B, either on his own account or for the benefit of Z, may share in the proceeds of any
sale of Z's property which may be made under A's decree. Z has committed an offence under this section.
COMMENT
The object of this section is to prevent the abuse of getting someone to file a collusive suit
for recovery of the whole property and suffering a decree to be passed. It provides punishment to
those persons who make fictitious claims in order to secure the property of the defendant against
persons to whom he may become indebted in future.
209. Dishonestly making false claim in Court.—Whoever fraudulently or dishonestly, or
with intent to injure or annoy any person, makes in a Court of Justice any claim which he
knows to be false, shall be punished with imprisonment of either description for a term which
may extend to two years, and shall also be liable to fine.
COMMENT
The section punishes the making of a false and fraudulent claim in a Court of Justice. The
scope of this section is wider than the last section as it applies to a person who is acting
fraudulently or dishonestly. For conviction under this section, not only the claim is required to be
false to the knowledge of the person making it but its object must also be to defraud, to cause
wrongful loss or wrongful gain, to injure or to annoy. The offence under this section is completed
as soon as the suit is filed.
210. Fraudulently obtaining decree for sum not due.— Whoever, fraudulently obtains a
decree or order against any person for a sum not due or for a larger sum than is due, or
for any property or interest in property to which he is not entitled, or fraudulently causes a
decree or order to be executed against any person after it has been satisfied or for anything
in respect of which it has been satisfied, or fraudulently suffers or permits any such act to
be done in his name, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
COMMENT
This section is the counterpart to section 208 in respect of fraudulent decrees. The object of
the Code behind this section is to provide the same penalty to both the parties alike. Thus this
section together with section 208 will enable both the parties to a fraudulent or collusive suit or
execution to be dealt with alike.
Obtains.—The Calcutta High Court in case of Molla Fuzla Karim,] has held that the offence
under this section is committed when the decree is fraudulently obtained and the fact that the decree
has not been set aside, though admissible to prove that there was no fraud will not constitute a bar
to a prosecution under this section.
Causes a decree or order to be executed....after it has been satisfied.—

1. (1905) 33 Cal. 193.
For conviction, under this section, the mere presentation of an application for the execution of a
decree already executed will be inadequate. The accused must have caused the decree to be
executed against the adversary after it had been satisfied,' or obtained an order for attachment for a
sum already paid.2 A decree-holder cannot be convicted under this section if he does not want to
proceed with the execution and gets his execution application dismissed.3
The fact that the satisfaction of the decree is of such a nature that the court executing it could
not recognise will provide no immunity to the decree-holder from being convicted under this
section.4
211. False charge of offence made with intent to injure.—Whoever, with intent to cause injury to any
person, institutes or causes to be instituted any criminal proceeding against that person, or falsely
charges any person with having committed an offence, knowing that there is no just or lawful ground for
such proceeding or charge against that person, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both ;
and if such criminal proceeding be instituted on a false charge of an offence punishable
with death, imprisonment for life, or imprisonment for seven years or upwards, shall be
punishable with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine. ^
COMMENT
This section deals with two distinct offences :
(1) Actually instituting or causing to be instituted a false criminal proceeding
against a person.
(2) Preferring a false charge against a person for having committed an offence.
The first may include the second, but the second may be committed where no criminal
proceedings follow.
Ingredients.—The following are the ingredients of the offences under this section :
(1) The criminal proceeding must be instituted or the false charge made with
intention to injure.
(2) Such institution of criminal proceeding or making of a false charge must be
without just or lawful ground, i.e., it must be made maliciously.
Thus an offence under this section consists of three elements : (i) a false charge should be
brought; (ii) the person bringing such charge must know that there was no just or lawful ground for
such proceeding or charge; and (iii) it should be brought to cause injury to the persons against
whom it was made.5
The difference between paras 1 and 2 of the section is that para 1 covers mere making of a false charge as well as institution of a criminal proceeding in certain
cases. But under para 2 actual institution of criminal proceedings on a false charge shall always be necessary although for certain offences which are more severely
punishable. For the application of second para two conditions are necessary :
(1) Institution of false proceedings on the false charge, and (2) the false charge should be in
respect of an offence punishable with death, imprisonment for life, or imprisonment for seven years
or upwards.
1. Shama Charon Das v. Kasi Naik, (1896) 23 Cal. 971.
2. Hikmat-ullah Khan v. Sakina Begam, (1930) 53 All. 416.
3. Bismilla Khan v. Rambhau, A.I.R. 1946 Nag. 686.
4. Madhub Chunder Mozumdar v. Novodeep Chunder Pandit, (1888) 16 Cal. 126; Mutturaman
Chetti, (1881) 4 Mad. 325; Pillala, (1885) 9 Mad. 101.
5. Sew Rattan Lai Binani v. Emperor, A.I.R. 1939 Cal. 288.
Intent to cause injury.—One of the essentials of an offence under this section is an

intention to cause injury.1
Institutes or causes to be instituted any criminal proceeding.—The first thing to be
established under this section is that the accused instituted or caused to be instituted the criminal
proceeding or made the false charge in question. To institute a criminal proceeding means to set the
criminal law in motion. To prefer a complaint to the police, in respect of an offence which they are
competent to deal with is to institute a criminal proceeding within the meaning of section 211. 2 It is
not necessary that a proceeding should be instituted in a Court of law. 3 Criminal law may be set in
motion in two ways : (i) by giving information to the police, and (ii) making a complaint to a
magistrate. Making a false charge to the police about a cognizable offence amounts to institution of
a criminal proceeding because police has in such cases power to take action. 4 But making a false
charge about a non-cognizable offence does not amount to institution of a criminal proceeding
because police has no power to take any proceeding without orders from a Magistrate. 5 In this case
it would only amount to making of a false charge and not institution of a criminal proceeding. False
charge relating to any offence whether cognizable or non-cognizable before a Magistrate amounts
to an institution of criminal proceeding.
False charges.—To make a false charge means to accuse any person falsely to a person in
authority. To make a charge is something more and different from giving information. "If the
complainant confines himself to reporting what he knows of the facts, stating his suspicions, and
leaving the matter to be further investigated by the police, or leaving the police to take such course
as they think right in the performance of their duty, he may be making a report, but is not making a
charge. But if he takes further step, without waiting for any official investigation, of definitely
alleging his belief in the guilt of a specified person, and his desire that the specified person be
proceeded against in Court, that act of his, whether verbal or written, if made to an officer of the
law authorised to initiate proceedings based upon the complainant's statement, whether amounting
to an expression of the complainant's belief in the guilt of the specified person, or his desire that
Court proceedings be taken against him, amounts to making a charge." 6 A false petition to the
Superintendent of Police, praying for the protection of the petitioner from the oppression of a Police
Sub-Inspector, which may be effected by some departmental action, does not amount to such a false
charge.7 It would be enough that a false charge is made though no prosecution is instituted thereon.8
Any statement, made under section 162, Cr. P. Code, in answer to questions put by a police officer making an investigation under section 161 of the Code cannot
be made the basis of a prosecution under this section.1 So also a statement made to the police of a suspicion that a particular person has committed an offence is not a
1. Gopal Dhanuk, (1881) 7 Cal. 96.

2. Appaji, I.L.R. 22 Bom. 517:
3. Albeit, A.I.R. 1966 Kerala 11.
4. Jijibhai Govind, (1896) 22 Bom. 596.
5. Karim Buksh, (1888) 17 Cal. 574.
6. Kashi Ram v. King Emperor, A.I.R. 1924 All. 778, per Walsh, J.
7. Abdul Hakim Khan Chaudhri, (1931) 59 Cal. 334.
8. Abdul Hassan, (1877)'! All. 497.
charge, nor does it amount to institution of criminal proceedings under this section. Therefore, no conviction under this section is possible on proof that the suspicion was
unfounded.2
Knowing that there is no just or lawful ground.—The expression "knowing that there is
no just or lawful ground" is equivalent to the English phrase "without reasonable and probable
causes". "A reasonable and probable cause" means "an honest belief in the guilt of the accused
based upon a full conviction, founded upon reasonable grounds of the existence of a state of
circumstances, which assuming them to be true, would reasonably lead any ordinarily prudent and
cautious man, placed in the position of the accused to the conclusion that the person charged was
probably guilty of the crime imputed."3
There must be :
(i) an honest belief of the accuser in the guilt of the accused;
(ii) such belief must be based on an honest conviction of the
existence of circumstances which led the accuser to that conclusion;
(iii) the above belief must be based upon reasonable grounds; that is
such grounds as would lead any fairly cautious man in the defendant's
situations to believe; and
(iv) the circumstances, so believed and relied on by the accuser, must
be such as amount to reasonable ground for belief in the guilt of the
accused.
Cases.—In Sivaprakason Pillai? a letter falsely charging a person with having committed an
offence was written and posted at Kumbakonam and was addressed to the Inspector General of
Police, Madras. It was held that an offence in this case could be said to be completed only when the
letter reached the office of the Inspector General of Police. The communication of the false
accusation was, in fact, the laying of the false charge, and unless the matter was actually
communicated to the superior officer it could not be said that a false charge had been made.
In re Subban Samban,5 a gangman reported to the Station Master of a railway station that he
had seen a person removing two keys on the railway line, and that he caught hold of him but he ran
away. This report was found to be false and the gangman was tried under this section. It was held
that the Station Master was not a person entitled to investigate the crime, that the information to
him was made in the due discharge of the accused's duty as a gangman and not to set the criminal
law in motion. The gangman could not be convicted for an offence under this section even though
the report happened to be false.
In a case a man burnt his own house and charged another with the offence. It was held that
he had committed an offence under this section. 6 In another case a woman appeared before the
Station Staff Officer and accused a non-commissioned officer of rape. After enquiry by the military
authority the charge was found to be false. The complainant was thereafter charged under this
1. Rainana Gowd, (1908) 31 Mad. 506.

2. Bramanund Bhaitacharjee '(1881) 8 C.L.R: 233.
3. Hicks v. Faulkener, (1878) 8 Q.Ii.D. 167.
4. A.I.R. 1948 Mad. 893.
5. A.I.R. 1944 Mad. 391.
6. Bhugwan Ahir, (1867) 8 W.R. (Cr.) 65.
section. It was held that no offence under this section was committed because false charge was not
made to a Court having jurisdiction.1
Distinction between sections 211 and 182.—-(1) Section 182 deals with giving to any
public servant any information which he knows or believes to be false; Section 211 deals with
instituting or causing to be instituted any criminal proceeding before a Court of law against any
person or falsely charging any person with having committed an offence knowing that there is no
just or lawful ground for such proceeding.
(2) Knowledge and belief in the falsity of information furnished is necessary for an offence
under section 182; knowledge in the falsity of information furnished is an essential requirement of
an offence under section 211.
(3) An offender under section 182 need not possess malice or want of reasonable and
probable cause; under section 211 malice is an essential element,2
(4) Section, 182 is limited to false information given to the police; 3 section 211 refers to
charges preferred in Court to a Magistrate.
212. Harbouring offender.—Whenever an offence has been committed, whoever harbours or
conceals a person whom he knows or has reason to believe to be the offender, with the intention of
screening him from legal punishment ;
if a capital offender.—shall, if the offence is punishable with death, be punished with imprisonment
of either description for a term which may extend to five years, and shall also be liable to fine ;
if punishable with imprisonment for life or with imprisonment.—and if the offence is punishable with
imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also be liable to
fine ;
and if the offence is punishable with imprisonment which may extend to one year, and not to ten
years, shall be punished with imprisonment of the description provided for the offence for a term which
may extend to one-fourth part of the longer term of imprisonment provided for the offence, or with fine,
or with both.
"Offence" in this section includes any act committed at any place out of India, which, if
committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 392,
393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460 ; and every such act shall,
for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it
in India.
Exception.—This provision shall not extend to any case in which the harbour or concealment is by
the husband or wife of the offender.
Illustration
A, knowing that B has committed dacoity, knowingly conceals B in order to screen him from legal
punishment. Here, as B is liable to imprisonment for life, A is liable to imprisonment of either description
for a term not exceeding three years, and is also liable to fine.
COMMENT
For conviction under this section, some offence must have actually been committed and the
harbourer must give refuge to one whom he knows or has reason to believe to be the offender with
the intention of screening him from legal punishment. This section has no application where the
persons harboured are not criminals but they have absconded merely to avoid or delay a judicial
investigation.4
In Sanjiv Kumar v. State of Himachal Pradesh,1 the allegation was that accused Lekh Raj
1. Jamoona, (1881) 6 Cal. 620.
2. Ragliavendra, 19 Bom. 717.
3. Samokhan, A.I.R. 1925 All. 906.
4. Ramraj Choudltary, (1945) 24 Pat. 604.
took main accused Sanjiv Kumar who committed murder on his scooter. But there was no material
showing that accused Lekh Raj knew about commission of murder by Sanjiv Kumar when he took
him along with him on his scooter. It was held that the ingredients for offence of harbouring
offender were not established and therefore conviction of Lekh Raj under section 212, I.RC. was set
aside.
Exception.—The only exception contemplated under this section is in those cases where
harbour is afforded by a wife or husband. The other relationships are beyond the scope of the
exception. As such, the willful receipt or assistance of felons is not an excuse; a father cannot assist
his child, a child his parent, a brother his brother, a master his servant or a servant his master.
213. Taking gift, etc. to screen an offender from punishment.—Whoever accepts or attempts to obtain,
or agrees to accept, any gratification for himself or any other person, or any restitution of property to
himself or any other person in consideration of his concealing an offence, or of his screening any person
from legal punishment for any offence, or of his not proceeding against any person for the purpose of
bringing him to legal punishment ;
if a capital offence.—shall, if the offence is punishable with death, be punished with imprisonment
of either description for a term which may extend to seven years and shall also be liable to fine ;
if punishable with imprisonment for life or with imprisonment.—and if the offence is punishable with
imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with
fine ;
and if the offence is punishable with imprisonment not extending to ten years, shall be punished
with imprisonment of the description provided for the offence for a term which may extend to one-fourth
part of the longest term of imprisonment provided for the offence, or with fine, or with both.
COMMENT
This section prescribes punishment for compounding of an offence by an; individual on
pecuniary consideration or other gratification. It is the duty of the State to bring the offenders to
book. Therefore, no individual has a right to compound a crime because he himself is injured and
no one else.
Ingredients.—There are two important ingredients, which must be satisfied for conviction
under this section—
1. A person accepting or attempting to obtain any gratification or restitution of
property for himself or any other person.
1. Such gratification must have been obtained in consideration of—
(i) concealing an offence, or -
(ii) screening any person from legal punishment for an offence,
or
(iii) not proceeding against a person for the purpose of bringing
him to legal punishment.
Scope.—This section has no application to cases, where the compounding of an offence is
legal. As to the scope of this section, there are contradictory views of different High Courts. In
Hemchandra Mukherjee,2 the Calcutta High Court opined that this section applies only where there
has been an actual concealment of an offence, or screening of a person from legal punishment or
abstention of criminal proceeding against a person in lieu of some consideration.
However, the Bombay High Court1 has disagreed from this view and has held that this section does
1. 1999 Cr. L.J. 1138 (S.C).
2. (1924) 52 Cal. 151.
not require the actual concealment of an offence or the screening of any person from legal
punishment or the actual forbearing to taking any proceedings. It is sufficient if an illegal
gratification is received in consideration of a person to conceal an offence or screen any person
from legal punishment or resist from taking any proceedings.
214. Offering gift or restoration of property in consideration of screening
offender.—Whoever gives or causes, or offers or agrees to give or cause, any gratification to
any person, or restore or cause the restoration of any property to any person, in consideration
of that person's concealing an offence, or of his screening any person from legal punishment
for any offence, or of his not proceeding against any person for the purpose of bringing him
to legal punishment,
if a capital offence.—shall, if the offence if punishable with death, be punished with imprisonment
of either description for a term which may extend to seven years and shall also be liable to fine ;
if punisliable with imprisonment for life, or with imprisonment.—and if the offence is punishable with
imprisonment for life or with imprisonment which may extend to two years, shall be punished with
fine ;
and if the offence is punishable with imprisonment not exceeding to ten years, shall be punished
with imprisonment of the description provided for the offence for a term which may extend to one-fourth
part of the longest term of imprisonment provided for the offence, or with fine, or with both.
Exception.—The provisions of Sections 213 and 214 do not extend to any case in whfch the offence
may lawfully be compounded.
Illustrations.—[Rep. by the Code of Criminal Procedure, 1882 ( X of 1882, S. 2 & Sch. 1).]
COMMENT
The object of this section is to punish the offence of the gift. Ingredients.—There are two
essential ingredients of this section—
(1) Offering any gratification or restoration of property to some person.
(2) Such offer must have been in consideration of the person's—
(a) concealing an offence, or
(b) of his screening any person from legal punishment for an offence, or
(c) of his not proceeding against a person, for the purpose of bringing him to
legal punishment.
The section presupposes the actual commission of an offence or the guilt of the person
screened from punishment. The intention behind the section is to discourage malpractices, when
offences have really been committed or when persons really guilty are screened, and not to ensure
general veracity on the part of public in regard to imaginary offences or offenders.
215. Taking gift to help to recover stolen property, etc.—Whoever takes or agrees or
consents to take any gratification under pretence or on account of helping any person to recover
any movable property of which he shall have been deprived by any offence punishable under
this Code, shall, unless he uses all means in his power to cause the offender to be apprehended
and convicted of the offence, be punished with imprisonment of either description for a term
COMMENT
Object.—The main object of this section is to punish all trafficking by which a person,
knowing that property has been obtained by crime, and knowing the criminal, makes a profit out of
the crime while screening the offence from justice.
1. Biharilal Kali Charon, (1949) 51 Bora. L.R. 564.
Ingredients—There are three essential ingredients of an offence under this section—
1. Taking or agreeing or consenting to take any gratification under preference or on
account of helping any person to recover any movable property.
2. The owner of such property must have been deprived of it by an offence
punishable under this Code.
3. The person taking the gratification must not have used all means in his power to
cause the offender to be apprehended and convicted of the offence.
Takes or agrees or consents to take.-^-The implication of these words is that the person
giving and taking the gratification has not only agreed as to the object for which the gratification is
to be given but also as to the form which the gratification is to take. In those cases where the
gratification has not actually passed and there is a disagreement as to the form or shape which the
gratification is to take, the idea of agreement or consent is negatived.
Deprived by any offence punishable under this Code.—The act by which the property is
deprived must be the subject of an offence punishable under this Code. In case of Sharfa,1 the
accused took Rs. 12 from the owner of the cow and promised to restore it in 10 days. Later on, he
refused to return either the money or the cow. It was held that no offence was committed under this
section.
Unless he uses all means in his power to cause the offender to be apprehended.—The
burden of proving the negative that the accused did not use all his power to cause the offender to be
apprehended does not lie on the prosecution but it is on the defence to establish that the accused did
all to cause the offender to be apprehended.2
216. Harbouring offender who has escaped from custody or whose apprehension has been ordered.—
Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes
from such custody ;
or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain
person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours
or conceals that person with the intention of preventing him from being apprehended, shall be punished in the
manner following, that is to say ;
if a capital offence.—i f the offence for which the person was in custody or is ordered to be apprehended
is punishable with death, he shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine ;
if punishable with imprisonment for life, or with imprisonment.—if the offence is
punishable with imprisonment for life or imprisonment for ten years, he shall be punished
with imprisonment of either description for a term which may extend' to three years, with or
/
without fine,
and if the offence if punishable with imprisonment which may extend to one year and not to ten years,
he shall be punished with imprisonment of the description provided for the offence for a term which may extend
to one-fourth part of • the longest term of the imprisonment provided for such offence or with fine, or with both.
"Offence" in this section includes also any act or omission of which a person is alleged to have been
guilty out of India, which, if he had been guilty of it in India, would have been punishable as an offence, and for
which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody
in India ; and evtry such act or omission shall, for the purposes of this section, be deemed to be punishable,
as if the accused person has been guilty of it in India.
1. (1914) PR. No. 9 of 1915.

2. Deo Suchit Rai, 1947 A.L.J. 48 (F.B.); D.K. Balai, 1959 Cr. L.J. 1438.
Exception.—The provision' does not extend to the case in which the harbour or concealment is by
the husband or wife of the person to be apprehended.
COMMENT
It was held by the Privy Council in case of Easwaramurthie,1 that to establish an offence
under this section the following must bfc shown :
(1) that there has been an order for the apprehension of a certain person as being
guilty of an offence;
(2) knowledge by the accused party of that order, and
(3) the harbouring or concealing by the accused of the person with the intention of
preventing him from being apprehended.
On a comparison of this section with section 212, it is apparent that this: section deals with
harbouring of an offender who has escaped from custody after being actually convicted of charged
with the offence, or whose apprehension has been ordered. Section 212 deals with the offence of
harbouring an offender who having committed an offence absconds. Thus the offence,
contemplated under this section is an aggravated form of the offence punishable under section 212.
This section takes into account only those cases where the man who is harboured is wanted
for an offence for which a maximum sentence of at least one year's imprisonment is provided. No
provision is made for those cases where he is wanted for offences for which the maximum sentence
is less than one year.2
216-A. Penalty for harbouring robbers or dacoits.— Whoever, knowing by or having reason to
believe that any persons are about to commit or have recently committed robbery or dacoity, harbours
them or any of them, with the intention of facilitating the commission of such robbery or dacoity, or of
screening them or any of them from punishment, shall be punished with rigourous imprisonment for a
term which may extend to seven years, and shall also be liable to fine.
Explanation.—For the purposes of this section it is immaterial whether the robbery or dacoity is
intended to be committed, or has been committed within or without India.
Exception.—This provision does not extend to the case in which the harbour is by the husband or
wife of the offender.
COMMENT
This section prescribes enhanced punishment, where the persons harboured are robbers or
dacoits or where they intended to commit robbery or dacoity. An offence contemplated under this
section will also be covered by section 212, but this section shall be specifically applied in case of
robbers or dacoits.
If the person charged with the offence of dacoity or robbery is acquitted then the other
person, on whom the charge of harbouring the accused in respect of that offence is levelled, cannot
be held guilty under this section.3
216-B. Definition of "harbour" in sections 212, 216 and 216-A.—[Rep. by the Indian Penal Code
(Amendment) Act, 1942 (8 of 1942, S. 3).]
217. Public servant disobeying direction of law with intent to save person from punishment or
property from forfeiture.—Whoever, being a public servant, knowingly disobeys any direction of law as to
the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it
to be likely that he will thereby save, any person from legal punishment, or subject him to a less
punishment than that t which he is liable, or with intent to save, or knowing that he is likely thereby to
save, any property from forfeiture or any charge to which it is liable by law, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or with both.
COMMENT
1. (1944) 71 I.A. 80.
2. Deo Baksh Singh, ( m i ) 18 Luck 617.
3. Subrarnanya Ayyar, A.I.R. 1947 Mad. 793.
This section deals with disobedience on the part of a public servant in respect of his official
duty. The objecTof this section is to punish a public servant who intentionally disobeys any
direction of law to save a person from punishment. It is not essential to show-that the person so
intended to be saved, had committed an offence, or was justly liable to legal punishment.
In case of Amiruddeen? it was held by the Calcutta High Court that the public servant
charged under this section is equally liable to be punished, although the intention which he had of
saving any person from legal punishment was founded upon a mistaken belief as to that person's
liability to punishment.
Legal punishment' does not include departmental punishment.5
218. Public servant forming incorrect record or writing with intent to save person from punishment or
property from forfeiture.—Whoever, being a public servant, and being as such public servant, charged with the
preparation of any record or other writing frames that record or writing in a manner which he knows to be
incorrect, with intent to cause or knowing it to be likely that he will thereby cause, loss or injury to the public or
to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person
from legal punishment, or with intent to save, or knowing that he is likely, thereby to save, any property from
forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine or with both.
COMMENT
This section prescribes punishment to a public servant who intentionally prepares a false
record with the object of saving or injuring any person or property. The intention on the part of the
public servant is an essential ingredient of offence under this section.
For conviction under this section, making of incorrect entry in the record is not sufficient but
it is essential to show that the false entries were made with the intention to cause injury. 6 A public
servant shall be liable under this section even if the person whom he intends to save from legal
punishment is himself.7
'Actual commission of offence not necessary'.—Under this section, actual guilt or
innocence of the alleged offender is immaterial if the accused believes him to be guilty and intends
to screen him.8
In Maulud Ahmad,9 the Supreme Court has held that if a police officer has made a false entry
in his diary and manipulated other records with a view to save the accused from punishment, the
mere fact that the accused was subsequently acquitted will not be of any help to the police officer.
Public servant framing incorrect record to save person from legal punishment.—In case
of Deodhar Singh? a Sub-Inspector was held liable under this section. The fact of the case was that
the Sub-Inspector was given a warrant by the Superintendent of Police under the Public Gambling
Act to arrest persons found gambling in a certain house. The Sub-Inspector, in order to save the
persons from legal punishment under the Public Gambling Act in that house, framed a first
information and a special diary incorrectly.
1. (1878) 3 Cal. 412.
Under this section substitution of one page by another so as to omit a given entry on the
7. (1899) 27 Gtl. 144.
substituted page is penal.1
219. Public servant in judicial proceeding corruptly making report, etc. contrary to
law.—Whoever, being a public • servant, corruptly or maliciously makes or pronounces at any
stage, of a judicial proceedings, any report, order, verdict or decision which he knows to be
contrary to law, shall be punished with imprisonment of either description for a term which
may extend to seven.years, or with fine, or with both.
COMMENT
This section should be read along with section 77. This section is concerned with corrupt or
malicious exercise of the power vested in a public servant for a particular purpose.
220. Commitment for trial or confinement by person having authority who knows that he
is acting contrary to law.—Whoever, being in any office which gives him legal authority to
commit persons for trial or to confinement, or to keep persons in confinement, corruptly or
maliciously commits any person for trial or confinement, or keeps any person in confinement,
5Jungle Led I. (1873) 19 W.R. (Cr.) 40.

6;3. Raghubansh Led, (1957) 1 All. 368.
7\4. Nand Kislwre. (1897) 19 All. 305.
8Hurdul Surma. (1867) 8 W.R. (Cr.) 68.
9(1964) 2 Cr. L.J. 71 (S.C).
in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall
be punished with imprisonment of either description for a term which may extend to seven
COMMENT
This section elaborates the principle laid down in the preceding section. The application of
this section is general while under the purview of the last section come judicial officers. The object
behind -it is to prevent illegal commitments for trial or illegal confinement.
221. Intentional omission to apprehend on the part of public servant bound to
apprehend.—Whoever, being a public servant legally bound as such public servant to apprehend
or to keep in confinement any person charged with or liable to be apprehended for an offence,
intentionally omits to apprehend such person or intentionally suffers such person to escape, or
intentionally aids such person in escaping or attempting to escape from such confinement, shall
be punished as follows, that is to say :—
with imprisonment of either description for a term which may extend to seven years, with or without
fine, if the person in confinement, or who ought to have been apprehended, was charged with, or liable to be
apprehended for, an offence punishable with death; or
with imprisonment of either description for a term which may extend to three years, with or without fine,
if the person in confinement, or who ought to have been apprehended, was charged with, or liable to be
apprehended for, an offence punishable with imprisonment for life or imprisonment for a term which may
extend to ten years ; or
with imprisonment of either description for a term which may extend to two years, with or without fine,
if the person in confinement, or who ought to have been apprehended, was charged with, or liable to be
apprehended for, an offence punishable with imprisonment for a term less than ten years.
COMMENT
The object of sections 221, 222 and 223 is to provide punishment for intentional omission to
apprehend, or negligently suffering the escape of offenders on the part of public servant bound to
apprehend or to keep in confinement.
222. Intentional omission to apprehend on the part of public servant bound to apprehend
person under sentence or lawfully committed.— Whoever, being a public servant, legally bound
as such public servant to apprehend or to keep in confinement any person under sentence of
a Court of Justice for any offence or lawfully committed to custody, intentionally omits to
apprehend such person, or intentionally suffers such person to escape or intentionally aids such
person in escaping or attempting to escape from such confinement, shall be punished as follows,
that is to say :—
with imprisonmnent for life or with imprisonment of either description for a term which may extend to
fourteen years, with or without fine, if the person in confinement, or who ought to have been apprehended, is
under sentence of death ; or
1. Madan
withLai v. Inderjit, A.I.R. 1970 P. &■ H. 200.
imprisonment of either description for a term which may extend to seven years, with or without
fine, if the person in confinement or who ought to have been apprehended, is subject, by a sentence of a Court
of Justice, or by virtue of a communication of such sentence, to imprisonment for life or imprisonment for a
term of ten years or upwards, or
both, if the person in confinement, or who ought to have been apprehended, is subject, by a sentence of a Court
of Justice, to imprisonment for a term not extending to ten years or if the person was lawfully committed to
custody.
COMMENT
This section has similarity with the preceding section. The only point of distinction is that
under this section the person to be apprehended has already been convicted or committed for an
offence. Thus the offence under this section is an aggravated form of offence under section 221.
223. Escape from confinement or custody negligently suffered by public
servant.—Whoever, being a public servant legally bound as such public servant to keep in
confinement any person charged with or convicted of any offence or lawfully committed to
custody, negligently suffer such person to escape from confinement, shall be punished with
simple imprisonment for a term which may extend to two years, or with fine, or with both.
COMMENT
This section punishes a public servant who negligently allows any person charged with an
offence to escape from confinement. The section consists of the following three essentials :—
1. The offender must be a public servant.
2. He must be legally bound to keep in confinement a person charged with or
convicted of an offence.
3. He must negligently suffer such person to escape.
The section will apply only when the custody is lawful. If a public servant is not entitled to
keep a person in custody, he does not commit an offence by allowing that person to escape.
224. Resistance or obstruction by a person to his lawful apprehension.—Whoever
intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself
for any offence with which he is charged or of which he has been convicted or escapes or
attempts to escape from any custody in which he is lawfully detained for any such offence,
shall be punished with imprisonment of either description for a term which may extend to
Explanation.—The punishment in this section is in addition to the punishment for which the person to be
apprehended or detained in custody was liable for the offence with which he was charged, or of which he was
convicted.
COMMENT
This section applies when any person causes resistance or unlawful obstruction against his
own lawful apprehension.
Ingredients.—The section deals with two kinds of offences—
1. Resistance or illegal obstruction by a person to his lawful apprehension for any
offence with which he is charged.
2. Escape or attempt to escape by a person from lawful custody for the offence with
which he is charged or of which he has been convicted. In order to commit an offence under
this section one should escape from
the custody in which he has been detained legally. No person is under legal custody unless he has
been arrested. A suspect of crime who was brought to the Police Station for interrogation ran away
from the place without the permission of the police. It was held that he was not under lawful
custody.1
1. MaheswaV, A.I.R. 1953 Cut. 751.
Explanation.—The explanation provides for separate punishment under this section in
addition to the punishment for which he was originally convicted.
225. Resistance or obstruction to ^lawful apprehension of another person.—Whoever intentionally
offers any resistance or illegal obstruction to the lawful apprehension to any other person for an offence, or
rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, for an
offence, shall be punished with imprisonment of either description for a term, which may extend to two years,
or with fine, or with both ;
or, if the person to be apprehended, or the person rescued or attempted to be rescued is charged with or
liable to be apprehended For an offence punishable with imprisonment for life or imprisonment for a term
which may extend to ten years, shall be punished with imprisonment of either description for.a term which may
extend to three years, and shall also be liable to fine :
or, if the person to be apprehended or rescued or attempted to be rescued, is charged with or liable to be
apprehended for an offence punishable with death, shall be punished with imprisonment of either description for
a term which may extend to seven years, and shall also be liable to fine ;
or, if the person to be apprehended or rescued or attempted to be rescued, is liable under the sentence of
a Court of Justice, or by virtue of a commutation of such a sentence to imprisonment for life, or imprisonment
for a term of ten years or upwards, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine ;
or, if the person to be apprehended or rescued, or attempted to be rescued, is under sentence of death,
shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten
years and also be liable to fine.
COMMENT
Such persons who resist or illegally obstruct to the apprehension of other persons who have
committed offences are punishable under this section. 'Rescue' is the act of forcibly freeing a person
from custody against the will of those who have got him in custody. The act for which the person
rescued is detained must be an offence under the Indian Penal Code.
225-A. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise
provided for.—Whoever, being a public servant legally bound as such public servant to apprehend, or to keep in
confinement, any person in any case not provided for in section 221, section 222 or section 223 or in any other
law for the time being in force, omits to apprehend that person or suffers him to*escape from confinement, shall
be punished—
(a) if he does so intentionally, with imprisonment of either description for a term which may extend to
three years, or with fine, or with both, and
(b) if he does so negligently, with simple imprisonment for a term which may extend to two years, or
COMMENT
A public servant who is bound to apprehend or to confine any person and who intentionally
or negligently omits to apprehend that person is to be punished under this section. The section
provides for such punishments which are not within the purview of section 221, 222 or 223.
225-B. Resistance or obstruction to lawful apprehension, or escape, or rescue in cases not otherwise
provided for.— Whoever, in any case not provided for in section 224 or section 225 or in any other law for the
time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of
himself or of any other person, or escapes or attempts to escape from any custody in which he is lawfully
detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully
detained, shall be punished with imprisonment of either description for a term which may extend to six months,
COMMENT
Such cases which are not covered by section 224 or 225 are dealt with under this section. A
person who escapes from custody when being taken before a magistrate to furnish security to be of
good behaviour cannot be punished under section 225 but he can be punished under this section.
However, there must be a positive act or resistance or obstruction. If a person runs away to avoid
arrest, he cannot be punished because his act does not amount to resistance or obstruction.1
226. (Omitted).
227. Violation of condition of remission of punishment.— Whoever, having accepted any conditional
remission of punishment, knowingly violates any condition on which such remission was granted, shall be
punished with the punishment to which he was originally sentenced, if he has already suffered no part of that
punishment, and if he has suffered any part of that punishment, then with so much of that punishment as he has
not already suffered.
COMMENT
This section deals with such cases in which remission of punishment is made conditional by
Government under section 401 of the Code of Criminal Procedure, 1898. If a person violates any
condition for remission of punishment he shall be punished with the punishment to which he was
originally sentenced.
228. Intentionally insult or interruption to public servant sitting in judicial
proceeding.—Whoever, intentionally offers any insult, or causes any interruption to any public
servant, while such public servant is sitting in any stage of a judicial proceeding, shall be
punished with simple imprisonment for a term which may extend to six months, or with fine
which may extend to one thousand rupees or with both.
COMMENT
This section deals with punishment of a person who intentionally insults in any way the court
administering justice. The object of this section is to preserve the prestige and dignity of the court.
The section lays down the highest sentence that can be inflicted for contempt of court.
Ingredients.—The essential ingredients of the section are as follows :—
(1) intention,
(2) insult or interruption to a public servant, and
(3) the public servant insulted or interrupted must be sitting in any stage of judicial
proceeding.
Such acts are rude behaviour, obstinacy, refusal to answer any lawful question, breach of the
peace or any wilful disturbance whatever, will amount to contempt of court.
It was held in Daroga Singh v. B.K. Pandey,2 that sub-section (3) of Contempt of Courts Act
excluded the jurisdiction of the High Court to take cognizance of a contempt alleged to have been
committed in respect of a Court subordinate to it only in cases where the acts alleged to constitute
contempt are punishable as contempt under specific provisions of the Penal Code, but not where
these acts merely amount to offences of other description for which punishment has been provided
in the Penal Code. Jurisdiction of High Court to take cognizance of contempt is not barred in
respect of offence punishable under section 228 of I.P.C, since under section 228 of I.P.C. offence
is not punishable as contempt of Court under I.P.C. but as intentional insult to a judge or
interruption of Court proceedings.
In the instant case judicial comment^ was passed to the annoyance of police officials,
whereupon the District Judge was attacked in a pre-planned and calculated manner by public
officials in his Court room and when he tried to protect himself from physical harm by retiring to
his chamber, by chasing him there and causing injuries to him. The raising of slogans and
1. Annaudin, (1923) I Ran. 218.
2. 2004 Cri. L.J. 2084 (S.C).
demanding unconditional bail for appellant investigation officer further compounded the offence.
The Courts cannot be compelled to give command orders. It was held that the act committed
amounts to deliberate interference with the discharge of duty of a judicial officer by intimidation
ajjart from scandalising and lowering the dignity of the Court and interference with the
administration of justice. It is a dangerous trend and has to be curbed. The jurisdiction of the High
Courts to take cognizance is not barred.
228-A. Disclosure of identity of the victim of certain offences, etc.—(1) Whoever prints or publishes
the name or any matter which may make known the identity of the person against whom an offence
under section 376, section 376-A, section 376-B, section 376-C or section 376-D is alleged or found to have
been committed (hereinafter in this section referred to as the victim) shall be punished with
imprisonment of either description for a term which may extend to two years and shall also be liable to
fine.
(2) Nothing in sub-section (1) extends to any printing or publication of the name or
any matter which may make known the identity of the victim if such printing or publication
is—
(a) by or under the order in writing of the officer-in-charge of the police station or the police
officer making the investigation into such offence acting in good faith for the purposes of
such investigation ; or
(b) by, or with the authorisation in writing of, the victim; or
(cj where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing
of, the next-of-kin of the victim :
Provided that no such authorisation shall be given by the next of kin to anybody other than the
chairman or the secretary, by whatever name called, of any recognised welfare institution or
organisation.
Explanation.—For the purposes of this sub-section, "recognised welfare institution or
organisation" means a social welfare institution or organisation recognised in this behalf by the Central
or State Government.
(3) Whoever prints or publishes any matter in relation to any proceeding before a court
with respect to an offence referred to in sub-section (1) without the previous permission of
such court shall be punished with imprisonment of either description for a term which may
extend to two years and shall also be liable to fine.
Explanation.—The printing or publication of the judgment of any High Court or the Supreme
Court does not amount to an offence within the meaning of this section.
COMMENT
In State of Karnataka v. Puttaraja,x the Court did not mention the name of the victim of rape
in the judgment. Section 228-A of the Indian Penal Code, 1860 makes disclosure of identity of
victim of certain offences punishable. Printing or publishing name or any matter which may make
known identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or
376-D is alleged or found to have been committed can be punished. The Supreme Court held that
the restriction does not relate to printing or publication of judgment by High Court or Supreme
Court. But keeping in view the social object of preventing social victimization or ostracism of the
victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that
in the judgment, be it of Supreme Court, High Court or lower Court, the name of the victim should
not be indicated.
It was held in Dinesh v. State of Rajasthan,2 that restriction in Section
1. 2004 Cri. LJ. 579 (S.C); See also Bhupinder Sharma v. State of Himachal Pradesh, 2004 Cri. L.J. 1 (S.C).
2. 2006 Cri. L.J. 1679 (S.C).
228-A about disclosure of identity of victim though does not relate to printing or publication of
judgment by High Court or Supreme Court but keeping in view social object of preventing social
victimization or contracism of victim of a sexual offence, name of victim should not be indicated in
judgments of Supreme Court, High Court or Lower Court.
It was held in Om Prakash v. State of Uttar Pradesh? that keeping in view the social object of
preventing social victimisation or ostracism of victim of a sexual offence for which Section 228-A
has been enacted, it would be appropriate that in judgments, whether it be of Supreme Court, High
Court or lower Court name of victim should not be disclosed.
229. Personation of a juror or assessor.—Whoever, by personation or otherwise, shall intentionally
cause, or knowingly suffer himself to be returned empanelled or sworn as a juryman or assessor in any case in
which he knows that he is not entitled by law to be so returned, empanelled or sworn, or knowing himself to
have been so returned, empanelled or sworn contrary to law, shall voluntarily serve on such jury or as such
assessor, shall be punished with imprisonment of either description for a term which may extend to two years,
COMMENT
This section deals with punishment for false personation of a juror or an assessor. It
embodies two classes of cases—
(1) Where the accused had guilty knowledge before he was returned i.e. got himself
enlisted as juror or assessor.
(2) Where he had such knowledge, after he was returned.
229-A. Failure by person released on bail or bond to appear in Court.—Whoever, having been charged
with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of
proving which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be
punished with imprisonment of either description for a term which may extend to one year, or with fine, or with
both.
Explanation.—The punishment under this section is—
(a) in addition to the punishment to which the offender would be liable on a conviction for the
offence with which he has been charged; and
(b) without prejudice to the power of the Court to order forfeiture of the bond."
1. 2006 Cri. L.J. 2913 (S.C).

CHAPTER XII OF OFFENCES RELATING TO
COIN AND GOVERNMENT STAMPS
230. "Coin" defined.—Coin is metal used for the time being as money and stamped
and issued by the authority of some State of Sovereign Power in order to be so used.
Indian coin.—Indian coin is metal stamped and issued by the authority of the Government of India in
order to be used as money ; and metal which has been so stamped and issued shall continue to be Indian coin for
the purposes of this Chapter, notwithstanding that it may have ceased to be used as money.
Illustrations
(a) Cowries are not coin.
(b) Lumps of unstamped copper, though used as money, are not coin.
(c) Medals are not coin, inasmuch as they are not intended to be used as money.
(d) The coin denominated as the Company's rupee is Indian coin.
(e) The "Farrukhabad rupee" which was formerly used as money under the authority
of the Government of India, is Indian coin although it is no longer so used.
COMMENT
Coin is metal used as money under the authority of State or Sovereign. In view of the
definition of Indian coin in this section it is immaterial whether the coins are still current or they
have ceased to be used as money. However, medal is not a coin and if a person represents to an
ignorant person a medal as being money he cannot be convicted of passing counterfeit coin.
Coins need not have any value in rupee fixed by law. Gold mohuxs which do not pass at an
absolutely fixed value, have a current value. The test whether a particular piece of metal is money
or not is the possibility of taking it into the market and purchase any goods in exchange for it.
231. Counterfeiting coin.—Whoever counterfeits or knowingly performs any part of the
process of counterfeiting coin, shall be punished with imprisonment of either description for a
Explanation.—A person commits this offence who intending to practice deception, or knowing it to be
likely that deception will thereby be practised, causes a genuine com to appear like a different coin.
COMMENT
Counterfeiting means causing one thing to resemble another. Under this section it is
sufficient if the resemblance to the genuine coin is so close that it is capable of being passed as
such. It is not essential for coins to be counterfeit that they should have exact resemblances of
genuine coins. It is sufficient that they are such as to cause deception and may be passed as genuine
coins.
232. Counterfeiting Indian coin.—Whoever counterfeits, or knowingly performs any part
of the process of counterfeiting Indian coin, shall be punished with imprisonment foir life or
with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
COMMENT
This section provides heavy punishment in case of offences relating to Indian coin. The Act
intends to deal with severe punishment the counterfeiting of its own coin than the counterfeiting of
foreign coin.
233. Making or selling instrument for counterfeiting coin.—Whoever makes or mends, or
performs any part of, the process of making or mending, or buys, sells or disposes of any die
or instrument, for the purpose of being used, or knowing or having reason to belive that it is
intended to be used, for the purpose of counterfeiting coin, shall be punished with imprisonment
of either description for a term which may extend to three years, and shall also be liable to
fine.
COMMENT
In this section any preparation towards the offence of coining is made substantive offence,
such as the making of dies or other instruments used for the purpose of manufacturing coin.
234. Making or selling instrument for counterfeiting Indian coin.—Whoever makes or
mends, or performs any part of process of making or mending, or buys, sells or disposes of,
any die or instrument, for the purposes of being used, or knowing or having reason to believe
that it is intended to be used, for the purpose of counterfeiting Indian coin, shall be punished
COMMENT
Under this section a person who makes or sells any instrument for counterfeiting Indian coin
shall be punished.
235. Possession of instrument or material for the purpose of using the same for
counterfeiting coin.—Whoever is in possession of any instrument or material, for the purpose
of using the same for counterfeiting coin, or knowing or having reason to believe that the
same is intended to be used for that purpose, shall be punished with imprisonment of either
if Indian coin.—and if the coin to be counterfeited is Indian coin, shall be punished with imprisonment of
COMMENT
This section provides for punishment for possession of any instrument «fld~ materials
capable of counterfeiting. However, possession of such instruments should be with the intention of
counterfeiting coins and the intention must be proved. Mere possession of such instrument is no
crime. A goldsmith may require similar instrument in his possession for his occupation and so he
does not commit an offence under this section. The section provides heavier punishment if the coin
to be counterfeited is Indian coin.
236. Abetting in India) the counterfeiting out of India of coin.—Whoever, being within
India, abets the counterfeiting of coin out of India, shall be punished in the same manner as
if he abetted the counterfeiting of such coin within India.
COMMENT
Any person whether an Indian or a foreigner who supplies instruments or materials for
counterfeiting outside India shall be punished under this section. However the abetment must be
complete in India.
237. Import or export of counterfeit coin.—Whoever imports into India, or exports
therefrom any counterfeit coin, knowingly or having reason to believe that the same is
counterfeit, shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.
COMMENT
This section deals with import or export of counterfeit coins. Any one who imports or exports
any coin knowing to be counterfeit shall be punished under this section.
238. Import or export of counterfeits of the Indian coin.—Whoever imports into India,
Or exports therefrom, any counterfeit coin which he knows or has reason to believe to be a
counterfeit of Indian coin, shall be punished with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years and shall also be liable to fine.
COMMENT
This section punishes the import and export of counterfeits of Indian coin.
239. Delivery of coin, possessed with knowledge tlwt it is counterfeit.—Whoever, having
any counterfeit coin, which at the time when he became possessed of it he knew to be
counterfeit, fraudulently or with intent that fraud may be committed, delivers the same to any
persons, or attempts to induce any person to receive it, shall be punished with imprisonment
of either description for a term which may extend to five years and shall also be liable to
fine.
COMMENT
A person having in his possession a counterfeit coin if fraudulently delivers the same to any
person shall be punished under this section. Sections 239 to 241 deal with the delivery of counterfeit
coins in various stages. Under section 239 the person in possession of counterfeit coin should
actually deliver the same to another person or induce him to receive the counterfeit coin.
240. Delivery of Indian coin possessed with knowledge that it is counterfeit.—Whoever,
having any counterfeit coin, which is a counterfeit of Indian coin, and which, at the time when
he became possessed of it, he knew to be a counterfeit of Indian coin, fraudulently or with
intent that fraud may be committed delivers the same to any person, or attempts to induce
any person to receive it, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
COMMENT
Any one who fraudulently delivers the Indian coin with the knowledge that it is counterfeit
shall be punished under this section. The offence under this sections is an aggravated form of the
offence described in the last section.
241. Delivery of coin as genuine, which, when first possessed, the deliverer did not know
to be counterfeit.— Whoever delivers to any other person as genuine, or attempts to induce
any other person to receive as genuine any counterfeit coin which he knows to be counterfeit,
but which he did not know to be counterfeit at the time when he took it into his possession,
two years, or with fine to an amount which may extend to ten times the value of the coin
counterfeited, or with both.
Illustration
A, a coiner, delivers counterfeit Company's rupees to his accomplice, B, for the purpose of uttering them.
B sells the rupees to C, another utterer, who buys them knowing them to be counterfeit. C pays away the rupees
for goods to D, who receives them, not knowing them to be counterfeit D, after receiving the rupees, discovers
that they are counterfeit, and pays them away as if they were good. Here D is punishable only under this section,
but B and C are punished under section 239 or 240, as the case may be.
COMMENT
This section applies to a casual utterer of base coins. Section 239 deals with professional
utterers.
242. Possession of counterfeit coin by person who knew it to be counterfeit when he
became possessed thereof.—Whoever, fraudulently or with intent that fraud may be committed,
is in possession of counterfeit coin, having known at the time when he became possessed thereof
that such coin was counterfeit, shall be punished with imprisonment of either description for
a term which may extend to three years, and shall also be liable to fine.
COMMENT
Mere possession of counterfeit coin is an offence provided it was kept for fraudulent purpose
and was originally obtained with guilty knowledge. However, it must be proved that counterfeit
coin was possessed with intent to defraud.
243. Possession of Indian coin by person who knew it to be counterfeit when he became
possessed thereof.—Whoever, fraudulently or with intent that fraud may be committed is in
possession of counterfeit coin, which is a counterfeit of Indian coin, having known at the time
when he became possessed of It that it was counterfeit, shall be punished with imprisonment
of either description for a term which may extend to seven years, and shall also be liable to fine.
COMMENT
This section is concerned with the possession of counterfeit of Indian coin. A person who
possess such counterfeit coin shall be heavily punished under this section.
244. Person employed in mint causing coin to be of different weight or composition from
that fixed by law.—Whoever, being employed in any mint lawfully established in India, does
any act, or omits what he is legally bound to do with the intention of causing any coins issued
from that mint to be of a different weight or composition from the weight or composition
fixed by law, shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
COMMENT
This section deals with the offences committed by person employed in a mint. If an such
employee issues any coin of different weight or composition from the weight or composition fixed
by law he shall be punished under this section. The object of this section is to secure purity of
coinage.
245. Unlawfully taking coining instrument from mint.—Whoever, without lawful
authority, takes out of any mint, lawfully established in India, any coining tool or instrument,
seven years, and shall also be liable to fine.
COMMENT
This section provides punishment for unlawful taking out of coining instrument from mint.
Mere taking coining instrument from mint without lawful authority is punishable.
, 246. Fraudulently or dishonestly diminishing weight or altering composition of coin.—Whoever,
fraudulently or dishonestly performs on any coin any operation which diminishes the weight or alters the
composition of that coin, shall be punished with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.
Explanation.—A person who scoops out part of the coin and puts anything else into the cavity alters the
composition of that coin.
COMMENT
Any one who fraudulently or dishonestly diminishes the weight of coin or alters its
composition shall be punished under this section.
247. Fraudulently or dishonestly diminishing weight or altering composition of Indian
coin,—Whoever, fraudulently or dishonestly performs on any Indian coin any operation which
diminishes the weight or alters the composition of that coin, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine.
COMMENT
This section deals with punishment for fraudulently or dishonestly diminishing weight or
altering composition of Indian coin.
248. Altering appearance of coin with intent that it shall pass as coin of different
description.—Whoever, performs on any coin any operation which alters the appearance of that
coin, with the intention that the said coin shall pass as a coin of a different description, shall
be punished with imprisonment of either description for a term which may extend to three
COMMENT
This section refers to change of appearance of coin. If any person alters appearance of coin
with the intention that the said coin shall pass as a coin of different description, he shall be punished
under this section.
249. Altering appearance of Indian coin with intent that it sliall pass as coin of different
description.—Whoever, performs of any Indian coin any operation which alters the appearance
313 ! S. 250
INDIAN PENAL CODE
of that coin with the intention that the said coin shall pass as coin of a different description, shall be punished
with imprisonment of either description for a term which may extend to seven years, and shall also be liable to
fine.
COMMENT
If any person alters the appearance of Indian coin so as to be treated as coin of different
description shall be punished under this section.
250. Delivery of coin possessed with knowledge that it is altered.—Whoever, having coin
in his possession with respect to which the offence defined in Section 246 or 248 has been
committed, and having known at the time when he became possessed of such coin that such
offence had been committed with respect to it, fraudulently or with intent that fraud may be
committed, delivers such coin to any other person, or attempts to induce any other person to
receive the same, shall be punished with imprisonment of either description for a term which
may extend to five years, and shall also be liable to fine.
COMMENT
This section is related to persons who are traders in altered coins. Such persons who possess
altered coin knowingly and deliver the same to other person shall be punished under this section
251. Delivery of Indian coin possessed with knowledge that it is altered.—Whoever, having
coin in his possession with respect to which the offence defined in Section 247 or 249 has been
committed, and having known at the time when he became possessed of such coin that such
offence had been committed with respect to it, fraudulently or with intent that fraud may be
committed, delivers such coin to any other person, or attempts to induce any other person to
receive the same, shall be punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
COMMENT
If the altered coin in possession is Indian coin and same has been delivered to other person,
this section provides heavy punishment in comparison to the previous one.
252. Possession of coin by person who knew it to be altered when he became possessed
thereof.—Whoever, fraudulently or with intent that fraud may be committed is in possession
of coin with respect to which the offence defined in either of the Section 246 or 248 has been
committed, having known at the time of becoming possessed thereof, that such offence had
been committed with respect to such coin, shall be punished with imprisonment of either
COMMENT
Sections 250 and 251 provide punishment for alteration of appearance of coin, and under this
section he is punished for possessing such coin. A person who knowingly possesses such altered
coin shall be punished under this section.
253. Possession of Indian coin by person who knew it to be altered when he became
possessed thereof.—Whoever fraudulently or with intent that fraud may be committed, is in
possession of coin with respect to which the offence defined in either of the Section 247 or
249 has been committed, having known at the time of becoming possessed thereof, that such
offence has been committed with respect to such coin, shall be punished with imprisonment of
either description for a term which may extend to five years, and shall also be liable to fine.
COMMENT
This section refers to those persons who possess altered Indian coin knowingly.
254. Delivery of coin as genuine which, when first possessed, the deliverer did not know
to be altered.—Whoever, delivers to any other person as genuine or as a coin of different
description from what it is, or attempts to induce any person to receive as genuine or, as a
different coin from what it is, any coin in respect of which he knows that any such operation
as that mentioned in Section 246, 247, 248 or 249 has been performed but in respect of which
he did not, at the time when he took into his possession, know that such operation had been
performed, shall be punished with imprisonment of either description for a term which may
extend to two "years or with fine to an amount which may extend to ten times the value of
the coin for which the altered coin is passed, or attempted to be passed.
COMMENT
This section corresponds to section 241. Where possession is acquired innocently but on
subsequent knowledge that the coin is counterfeit if a person delivers it or attempts to delivers it as a
genuine coin, he will be punished under this section.
255. Counterfeiting Government stamps.—Whoever, counterfeits or knowingly performs
any part of the process of counterfeiting, any stamp issued by Government for the purpose of
revenue, shall be punished with imprisonment for life, or with imprisonment of either
Explanation.—A person commits this offence who counterfeits by causing a genuine stamp of one
denomination to appear like a genuine stamp of a different denomination.
COMMENT
This section and the remaining sections of the Chapter deal with offences relating to
Government stamps. The stamps are impressions upon paper or any material used for writing made
by the Government mostly for the purpose of revenue. A person commits an offence under this
section if he counterfeits by causing a genuine stamp of one denomination to appear like a genuine
stamp of a different denomination.
314 ! S. 250
INDIAN PENAL CODE
256. Having possession of instrument or material for counterfeiting Government stamp.—
Whoever, has in his possession any instrument or material for the purpose of being used, or
knowing or having reason to believe that it is intended to be used, for the purpose of
counterfeiting any stamp issued by Government for the purpose of revenue, shall be punished
COMMENT
This section resembles section 235.
257. Making or selling instrument for counterfeiting Government stamp.—Whoever makes
or performs any part of the process of making, or buys or sells, or disposes of, any instrument
for the purpose of being used or knowing or having reason to believe that it is intended to
be used, for the purpose of counterfeiting any stamp issued by Government for the purpose
of the revenue, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
COMMENT
This section corresponds to section 234.
258. Sale of counterfeit Government stamp.—Whoever sells, or offers for sale, any stamp
which he knows or has reason to believe to be counterfeit of any stamp issued by Government
for the purpose of revenue, shall be punished with imprisonment of either description for a
COMMENT
This section resembles section 239.
259. Having possession of counterfeit Government stamp.—Whoever has in his possession
any stamp which he knows to be a counterfeit of any stamp issued by Government for, the
purpose of revenue, intending to use, or dispose of the same as a genuine stamp, or in order
that it may be used as a genuine stamp, shall be punished with imprisonment of either
COMMENT
260. Using as genuine a Government stamp known to be counterfeit.—Whoever uses as
genuine any stamp, knowing it to be a counterfeit of any stamp issued by Government for
the purpose of revenue, shall be punished with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both.
COMMENT
261. Effacing writing from substance bearing Government stamp, or removing from
document a stamp used for it with intent to cause loss to Government.—Whoever, fraudulently
or with intent to cause loss to the Government, removes or effaces from any substance, bearing
any stamp issued by government for the purpose of revenue, any writing or document for
which such stamp has been used, or removes from any writing or document which has been
used for such writing or document, in order that such stamp may be used for a different
writing or document, shall be punished with imprisonment of either description for a term
COMMENT
This section punishes any person who causes loss to Government by (1) the effacing of a
writing stamp, and (2) removing of a stamp from a document.
262. Using Government stamp known to Itave been before used.—Whoever, fraudulently
or with intent to cause loss to the Government, uses for any purpose a stamp issued by
Government for the purpose of revenue, which he knows to have been before used, shall be
punished with imprisonment of either description for a term which may extend to two years,
COMMENT
If any person makes fraudulent use of any stamp which has already once been used shall be
punished under this section.
263. Erasure of mark denoting that stamp lias been used.—Whoever, fraudulently or with
intent to cause loss to Government, erases or removes from a stamp issued by Government
for the purpose of revenue, any mark put or impressed upon such stamp for the purpose of
denoting that the same has been used, or knowingly has in his possession or sells, or disposes
of any such stamp from which such mark has been erased or removed, or sells, or disposes
of any such stamp which he knows to have been used, shall be punished with imprisonment
of either description for a term which may extend to three years, or with fine, or with both.
COMMENT
Any person who causes loss to government by erasing or removing any
mark upon the stamp shall be punished under this section. This section punishes
(1) erasure or removal of a mark denoting that stamp has been used, (2)
knowingly possessing any such stamp," and (3) selling or disposing of any such
stamp. /
263-A. Prohibition of fictitious stamp.—(1) Whoever—
(a) makes knowingly, utters, deals in or sells any fictitious stamp, or knowingly uses for any
postal purpose any fictitious stamp ; or
(b) has in his possession, without lawful excuse, any fictitious stamp ; or
(c) makes or, without lawful excuse, has in his possession, any die, plate, instrument or
materials for making any fictitious stamp,
shall be punished with fine which may extend to two hundred rupees.
(2) Any such stamp, die, plate, instrument or material in the possession of any person for making any fictitious
stamp may be seized and if seized shall be forfeited.
(3) In this section "fictitious stamp" means any stamp falsely purporting to be issued by the Government for
the purpose of denoting a rate of postage, or any facsimile or imitation or representation, whether on paper or
otherwise of any stamp issued by Government for that purpose.
(4) In this section and also in sections 255 to 263, both inclusive the word "Government" when used in
connection with, or in reference to, any stamp issued for the purpose of denoting a rate of postage, shall
notwithstanding anything in Section 17, be deemed to include the person or persons authorised by law to
administer executive Government in any part of India, and also in any part of Her Majesty's dominions or in any
foreign country.
COMMENT
This section declares an offence to manufacture fictitious stamps which are defined to be
stamps purporting to be used for purposes of postage by any foreign Government. The object of the
section is to stop the use of fictitious stamps on letters coming from abroad.
CHAPTER XIII
OF OFFENCES RELATING TO WEIGHTS AND MEASURES
264. Fraudulent use of false instrument for weighing.—Whoever, fraudulently uses any
instrument for weighing which he knows to be false, shall be punished with imprisonment of
either description for a term which may extend to one year, or with fine, or with both.
COMMENT
Under this section any person who fraudulently uses any instrument for weighing shall be
punished. This section has two ingredients :—
(1) Fraudulent use of any false instrument of weighing, and
(2) Knowledge that it is false.
265. Fraudulent use of false weight or measure.—Whoever fraudulently uses any false
weight or any measure of length or capacity, or fraudulently uses any weight or any measure
of length or capacity, as a different weight or measure from what it is, shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine, or
with both.
COMMENT
This section provides punishment for fraudulent use of weight or measure. Section 264
punishes those who use a false balance; this section punishes one who uses a false weight or false
measure of length or capacity.
266. Being in possession of false weight or measure.—Whoever is in possession of any
instrument for weighing, or of any weight, or of any measure of length or capacity, which he
knows to be false, intending that the same may be fraudulently used, shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine, or
with both.
COMMENT y
This section punishes a person who is in possession of a false weight or measure. A measure
is false if it is something other than what it purports to be. If both purchaser and seller are aware of
the actual measure being used, there is no fraudulent intent.
The mere possession of false weights will not in itself be an act of fraud. It is necessary that
the accused must know the weight or measure to be false and also intend to use them fraudulently.
267. Making or selling false weight or measure.—Whoever makes, sells or disposes of
any instrument for weighing, or any weight, or any measure of length or capacity which he
knows to be false, in order that the same may be used as true, or knowing that the same is
likely to be used as true, shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both.
COMMENT
This section provides punishment for a person who makes, sells or disposes of false balance,
weight or measure. The purpose of this section is to prevent circulation of false scales, weights and
measures.
CHAPTER XIV
OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY,
CONVENIENCE, DECENCY AND MORALS
268. Public Nuisance.—A person is guilty of a public nuisance, who does any act or is guilty of an
illegal omission which causes any common injury, danger or annoyance to the public or to people in general
who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.
COMMENT
Nuisance means anything which causes inconvenience, annoyance or damage. Nuisance is of
two kinds : (1) public nuisance or common nuisance, and (2) private nuisance.
Public nuisance is a common annoyance which affects the public and is a substantial
annoyance to all the subjects. Private nuisance is anything which causes material discomfort and
annoyance to a man in the use for ordinary purposes of his house or property. It is an act affecting
some particular individual or individuals as distinguished from the public at large.
In order to constitute a public nuisance there must be an act or an illegal omission. It is not
necessary that the act should be illegal. But as soon as an act becomes a nuisance, it becomes illegal
not because it is per se illegal, but because it has an injurious effect upon and is intolerable to the
public. It is no defence to a charge of public nuisance that the act done was in assertion of one's
right in property, or that it was done on one's own property or that it had been done from time
immemorial. In cases of public nuisance the grievance lies in the inconvenience irv fact-caused, and
not in the intent or knowledge of the person responsible as occupier of the premises on ;which the
nuisance is created or of the owner, if the premises are, in fact, unoccupied. 1 It is no defence to a
charge for nuisance against a master or employer that the nuisance was caused by acts of his
servants, if they were done in the course of their employment.2
There may be an act or illegal omission causing an injury, it does not necessarily amount to a
public nuisance unless the injury so caused is common to the public. It is not a sine qua non that a
public nuisance should injuriously affect every member of the public within its range of operation.
It is sufficient that it should affect people in general who dwell in the vicinity. 3 The question
whether the number of persons injuriously affected by a nuisance is sufficiently large to be
designated as the public is a question of fact which the Court will have to decide, having regard to
the nature of the nuisance and its effect upon the public generally or upon a section of the public
complaining of its existence.
Ingredients.—The following are necessary ingredients of this offence :
1. Doing of any act or illegal omission to do an act.
1. Attorney General v. Tod Heatley, (1897) 1 Ch. 560.

2. R. v. Stephens, (1866) L.R. 1 Q.B. 702.
3. Phiraya Mai v. Emperor, (1904) P.R. No. 9 of 1904.
( 384 )
S. 268 ]
2. The act or omission—

(i) must cause any common injury, danger or annoyance :
(a) to the public, or
(b) to the people in general whoi dwell or occupy property in the vicinity, or
(ii) must necessarily cause injury, obstruction, danger or annoyance
to person who may have occasion to use any public right.
Public.—By 'public' is meant general public and not an individual of particularly refined
susceptibilities. Where a respectable man of 55 years of age passed urine in a grazing ground under
cover of a tamarind tree in a village it was held that it may be that the habit of promiscuous
urination is opposed to the interests of public health, decency and morals, but it would not by itself
constitute an offence of public nuisance. In most of the villages there are no public latrines or
urinals and it is a common practice to pass off urine in public places, of course, without any
indecent exposure and it does not cause any annoyance to villagers in general.'
Prostitution.—Common injury must be to the public at large and not to a particular
individual.2 If the prostitution is carried on in a clandestine or hidden manner, there can be no
public nuisance although persons who come to know of the immoralities committed in the house
may feel their moral sense outraged. In a case a traveller was putting up in a Dak Bunglow and on
his invitation a prostitute paid him a visit. She had been warned against visiting that place. Since
both the elements of common injury and injury to the public were wanting she could not be
convicted for public nuisance.3 Therefore, bare solicitation of chastity, even in a public place, is not
a public nuisance, as it proves or suggests no fact relating to any common injury or annoyance.4
Sale of meat or fish.—Mere sale of meat or fish near or on a public road, cannot be deemed
a nuisance,5 though the fact that such exposure is offensive to the religious susceptibilities may be a
matter for executive action. The kind of annoyance aimed at by the section is not the annoyance
which the religious ideas of class of people may suffer on account of an otherwise innocent act of
another section of the public.6
Gaming houses.—Houses maintained for gambling or the keeping up of lottery or betting
houses attract a number of disorderly persons and thus cause annoyance to the neighbours. In
England, a common gaming house is, as such, a nuisance, 7 but the position of India is different. In
Han Nagji,* it was held that in the absence of any statutory provision, the mere keeping of a
gambling house cannot be penalised, unless there is evidence of an actual annoyance to the public.
This view was accepted by Madras High Court also in Thandu v. Arayudu?
Setting up Tazia.—In Muttvmira,10 some Mohammedan had set up an image during the Mohurrum
1. In re Vedagiri Perumal Naidu, A.I.R. 1937 Mad. 130.

2. Jatindar Nath v. Manindra Nath, A.I.R. 1950 Cal. 331.
3. Masumut Begam, 2 N.W.P., H.C.R. 349.
4. Raji, (1895) Un-rep. Cr.C. 765.
5. Paung Tha Ri, (1880) P.L.J. 94.
6. Janaki Prasad v. Karamat Hussain, A.I.R. 1931 All. 674.
7. Rogier 1 B. & C. 272.
8. 7 B.H.C.R. 74.
. 9. I.L.R. 14 Mad. 364.
10.I.L.R. 7 Mad. 590. "
festival on a piece of waste land forming part of the village site and in the proximity of a Hindu
temple. Setting up of the image was likely to cause annoyance to Hindus. Mohammedans were held
not liable for an offence under this section because this section was not intended to apply to acs and
omissions calculated to offend the sentiments of a class. The erection of a place of worship in a
particular spot is likely to offend the sentiments of the adherents of other creeds residing in the
neighbourhood, but the Penal Code does not regard such an act as public nuisance. Similar view
was adopted in another case where the Jains had complained against the accused, having cut up, in
view, in verandah of his house, meat that was cooked for a dinner. The meat was fresh and was
emitting no noxious smell. Its exposure was, however, revolting to the feelings of the Jains who
resided in the neighbourhood. This too was held not to amount to public nuisance.1 But if the
animals are slaughtered in public so that the groans and blood of the poor slaughtered beasts were
heard and seen by the passers-by, the act would clearly amount to public nuisance.2
Legalised nuisance.—There is a class of nuisance which is known as legalised nuisance such
as cremation of the dead,3 licenced trade4 etc. A public nuisance cannot be legalised by any length
of enjoyment howsoever longer it may be.5
Other cases.—It would be a nuisance to disturb the stillness of the night by making a great
noise with a Speaking trumpet,6 or a nude exposure of one's person to the public, whether from the
balcony of one's own house7 or from a public place such as a urinal 8 an omnibus9 or a bathing place,
however ancient, by which females pass111 or the exhibition of a nude figure covered with sores as
an advertisement by a herbalish.11 Similarly exhibition by beggars in fairs or markets of their
loathsome ailments with a view to exciting pity will also be nuisance though it is generally tolerated
by the apathetic masses. Anything would be nuisance which annoy one whether it is done in a
public place, or in a private place in the view of the public.
If any portion, however small, of a public road is encroached upon, it would cause
obstruction to persons who may have occasion to use the highway, for the public is entitled to use
every inch of a road that has been dedicated to the public ancj it would constitute the offence of
public nuisance.12 So also if prickly pear is allowed to be spread on the road used by the public it
would amount to public nuisance.13 One who appropriates a part of a street by building over it 14 or
by erecting a platform in front of his house which abutted on it 15 and also one who filled up a
portion of a ditch or drain which formed part of a public way and which belonged to the public 1
1. Byramji Edalji, I.L.R. 12 Bom. 437.
2. Zaki Uddin, I.L.R. 10 All. 44.
3. Swaminathan Pillai, I.L.R. 19 Mad. 464.
4. Mohammed Ali, 16 W.R. 6.
5. Ibid.
6. Smith, 2 Stan 704.
7. Thallman, 9 Cox. 388.
8. Harris, 40 L..I. (M.C.) 61.
9. H>lmes, 22 L.J. (M.C.) 122.
10. Grey, 4 F & F 73; Reed, 12 Cox 1.
11. Sounders, 1 Q.B.D. 15.
12. Nisar Muhammad Khan, (1925) 6 Lah. 203.
13. Molaippa Goundou, (1928) 52 Mad. 79.
14. Virappa Chetti, (1896) 20 Mad. 433.
15. Puranmashi, (1935) 58 All. 694.
would be guilty of committing public nuisance. In a case some persons placed a bamboo stockade
across a tidal navigable river for the purpose of fishing. They left in such stockade, a narrow
opening for the passage of boats. The passage was generally kept closed and was opened only for
actual passage of a boat. These persons were held guilty under this section. 2 No suit for declaration
of the existence of public nuisance and for injunction to remove the public nuisance will lie unless
special damage is proved.3
In S. Venkataramaiah v. State? the petitioner uttered certain words to his brother in the
course of cross-examination before the Land Tribunal. There was no quarrel between them but
being irritated and upset by certain question he uttered those unwanted words and thus misbehaved.
It was held that such utterance even if true does not amount to public nuisance under section 268 as
there was no quarrel between the two brothers.
269. Negligent act likely to spread infection of disease dangerous to life.—Whoever
unlawfully or negligently does any act which is, and which he knows or has reason to believe
to be, likely to spread the infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine,
or with both.
COMMENT
This section punishes any person who does any act which is likely to spread infectious
diseases in the society. The infectious diseases are cholera, plague and small-pox etc. However,
such person must have knowledge that his action was likely to spread infectious diseases. Where a
man was suffering from chplera and was aware of its infectious nature, travelled by train without
informing the railway authorities of his condition, it was held that he was responsible for spreading
infection of cholera.5
'A' a prostitute communicated venereal disease to a man who had sexual intercourse with her
on the strength of her representation that she was free from any disease. In this case A will be liable
under section 269 IP. Code for spreading infection of disease as she knew that she was suffering
from venereal disease which was infectious and knowing this fact A misrepresented that she was
free from any disease and, with this representation had sexual intercourse with a man.
270. Malignant act likely to spread infection of disease dangerous to life.—Whoever
malignantly does any act which is, and which he knows or has reason to believe to be, likely
to spread the infection of any disease dangerous to life, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both.
COMMENT
If any person malignantly does any act which may spread the infection of any disease
dangerous to life, he shall be punished. The offence under this section is an aggravated form of the
offence punishable under the last section. The word "malignantly" denotes a deliberate intention to
cause infection of any disease on the part of accused.
1. Roop Narain Dutt, (1872) 18 W.R. (Cr.) 38.

2. Umesh Chandra Kar, (1887) 14 Cal. 656.
3. Barado Prasad, 12 Sub. W.R. 160.
4. 1989 Cri. L.J. 789 (Karn).
5. Krishnappa, (1883) 7 Mad. 276.
[ S. 271
27L Disobedience to quarantine rule.—Whoever knowingly disobeys any rule made and
promulgated by the Government for putting any vessel into a state of quarantine, or for regulating the
intercourse of vessels in a state of quarantine with the shore or with other vessels, or for regulating the
intercourse between places where an infectious disease prevails and other places, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine, or with both.
COMMENT
Under this section disobedience to quarantine rule is punishable. The motive behind such
disobedience is immaterial. A person who knowingly disobeys any rule made by the government
shall be punished whether any injurious consequence flow from it or not.
27Z Adulteration of food or drink intended for sale.—Whoever adulterates any article of food or
drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink,
or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment
of either description for a term which may extend to six months, or with fine which may extend to one
COMMENT
A person who mixes harmful ingredients in food or drink shall be punished under this
section. Mere adulteration with harmless ingredients for the purpose of getting more profit is not
punishable under this section e.g. mixing water with milk or ghee with vegetable oil. "Adulteration"
means to mix with any other substance whether wholly different or of the same kind but of inferior
quality. It is essential that an article or food or drink has been adulterated and that it was intended to
sell such article.
273. Sale of noxious food or drink.—Whoever sells, or offers or exposes for sale, as food
or drink, any article which has been rendered or has become noxious, or is in a state unfit
for food or drink, knowing or having reason to believe that the same is noxious as food or
drink, shall be punished with imprisonment of either description for a term which may extend
to six months, or with fine which may extend to one thousand rupees, or with both.
COMMENT
Ingredients.—The section has three ingredients :—
1. Selling or offering for sale as food or drink some article.
2. Such article must have become noxious or must be in a state unfit for food or
drink.
3. The sale or exposure must have been made with the knowledge or reasonable
belief that the article is noxious as food or drink.
This section punishes sale of noxious food or drink. Under this section the sale of noxious
articles as food or drink is punishable and not the mere sale of noxious article.
274. Adulteration of drugs.—Whoever, adulterates any drug or medicinal preparation in
such a manner as to lessen the efficacy or change the operation of such drug or medicinal
preparation, or to make it noxious, intending that it shall be sold or used for, or knowing it
to be likely that it will be sold or used for, any medicinal purpose, as if it had not undergone
such adulteration, shall be punished with imprisonment of either description for a term which
may extend to six months, or with fine which may extend to one thousand rupees, or with
both.
COMMENT
Under this section adulteration of drugs is punished. The purpose, of this section is to
preserve the purity of drugs for medicinal purposes. It is not necessary that such adulteration of
drugs should become noxious to life, it is sufficient if the efficacy of a drug is lessened.
275. Sale of adulterated drugs.—Whoever, knowing any drug or medicinal preparation
to have been adulterated in such a manner as to lessen its efficacy, to change its operation,
or to render it noxious, sells the same, or offers or exposes it for sale, or issues it from any dispensary for
medicinal purpose as unadulterated, or causes it to be used for medicinal purposes by any person not
knowing of the adulteration, shall be punished with imprisonment of either description for a term which
may extend to six months, or with fine which may extend to one thousand rupees, or with both.
[ S. 271
COMMENT
This section deals with punishment for selling of adulterated drugs. This section not only
prohibits the sale of an adulterated drug but also its issue from any dispensary.
276. Sale of drug as a different drug or preparation.— Whoever knowingly sells, or
offers, or exposes for sale, or issues from a dispensary for medicinal purposes, any drug or
medicinal preparation, as a different drug or medicinal preparation, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
COMMENT
Under this section a person who sells different drug or preparation from what it purports to
be, shall be punished. It is not necessary that there should be any adulteration of drugs. What is
required is that there should be substituted medicine.
277. Fouling water of public spring or reservoir.—Whoever voluntarily corrupts or fouls
the water of any public spring or reservoir, so as to render it less fit for the purpose for
which it is ordinarily used, shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine which may extend to one thousand
COMMENT
If a person voluntarily fouls the water of any public spring or reservoir, he shall be punished
under this section. The water of public spring or reservoir belongs to general public and any person
who fouls it, commits a public nuisance.
Ingredients.—The section includes the following ingredients :—
1. voluntary corruption or fouling of water,
2. the water must be of public spring or reservoir; and
3. the water must be rendered less fit for the purpose for which it is ordinarily used.
278. Making atmosphere noxious to health.—Whoever voluntarily vitiates the atmosphere
in any place so as to make it noxious to the health of persons in general dwelling or carrying
on business in the neighbourhood or passing along a public way, shall be punished with fine
which may extend to five hundred rupees.
COMMENT
This section provides punishment for making atmosphere noxious to health. Such noxious
atmosphere must affect the health of the general public.
279. Rash driving or riding on a public way.—Whoever drives any vehicle or rides, on
any public way in manner so rash or negligent as to endanger human life, or to be likely to
cause hurt or injury to any other person, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend to one
COMMENT
In this section if a person while driving a vehicle is rash or negligent so as to endanger human
life, he shall be punished.
Ingredients.—The following are the ingredients—
1. Driving of a vehicle or riding on a public way.
2. Such driving or riding must be so rash or negligent as to endanger human life or
to be likely to cause hurt or injury to any other person.
322 i S. 280
INDIAN PENAL CODE
280. Rash navigation of vessel.—Whoever navigates any vessel in a manner so rash or

negligent as to endanger human life, or to be likely to cause hurt or injury to any other
person, shall be punished with imprisonment of either description for a term which may extend
to six months, or with fine which may extend to one thousand rupees, or with both.
COMMENT
This section deals with the cases of inland navigation. If a person by rash or negligent
navigation of vessel endangers human life, he shall be punished under this section.
281. Exhibition of false light, mark or buoy.—Whoever exhibits any false light, mark or
buoy, intending or knowing it to be likely that such exhibition will mislead any navigator, shall
be punished with imprisonment of either description for a term which may extend to seven
COMMENT
If a person intentionally misleads any navigator by exhibiting a false light, mark or buoy, he
shall be punished under this section.
282 Conveying person by water for hire in unsafe or overloaded vessel—Whoever knowingly or
negligently conveys, or causes to be conveyed for hire, any person by water in any vessel, when that vessel
is in such a state or so loaded as to endanger the life of that person, shall be punished with imprisonment
of either description for a term which may extend to six months, or with fine which may extend to one
COMMENT
Under this section if a person negligently or knowingly endangers the life of any person by
conveying him by water in any vessel he shall be punished. Certain persons whom the accused, a
ferryman, was rowing across a river were drowned by the sinking of the boat which was an old one
with some holes in the bottom over which planks had been nailed. It was held that the accused was
guilty under this section.1
283. Danger or obstruction in public way or line of navigation.—Whoever, by doing any
act, or by omitting to take order with any property in his possession or under his charge,
causes danger, obstruction or injury to any person in any public way or public line of
navigation, shall be punished with fine which may extend to two hundred rupees.
COMMENT
This section deals with such acts which cause danger, obstruction or injury to any person in a
public line of navigation.
Ingredients.—The section requires following two ingredients :—
1. A person must do an act or omit to take order with any property in his possession
or under his charge.
2. Such act or omission must cause danger, obstruction or injury to any person in
any public way or line of navigation.
284. Negligent conduct with respect to poisonous substance.—Whoever does, with any
poisonous substance, any act in a manner so rash or negligent as to endanger human life, or
to be likely to cause hurt or injury to any person,
or knowingly or negligently omits to take such order with any poisonous substance it his possession
as is sufficient to guard against probable danger to human life from sue! poisonous substance,
shall be punished with imprisonment of either description for a term which may extern to six
months, or with fine, which may extend to one thousand rupees, or with both.
COMMENT
Under this section a person who is rash or negligent with respect t poisonous substance shall
be punished. The poisonous substance should endange human life or should be likely to cause hurt
or injury to any person. In tt second part of this section the person in possession of poisonous
1. Magenee Behara, (1869) 11 W.R. (Cr.) 3.

substance should have omitted to take reasonable care which is sufficient to guard against any
possible danger to human life. It is not necessary that actual injury to hurt should follow the
negligent omission on the part of the person in possession of poisonous substance.
285. Negligent conduct with respect to fire or combustible matter.—Whoever does, with
fire or any combustible matter, any act so rashly or negligently as to endanger human life, or
to be likely to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order, with any fire or any combustible matter in his
possession as is sufficient to guard against any probable danger to human life from such fire or combustible
matter,
shall be punished with imprisonment of either description for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.
COMMENT
This section deals with negligent conduct with respect to fire or combustible matter. It
extends the provisions of the preceding section to fire or any other combustible matter.
323 i S. 280
INDIAN PENAL CODE
286. Negligent conduct with respect to explosive substance.—Whoever does, with any
explosive substance, any act so rashly or negligently as to endanger human life, or to be likely
to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order with any explosive substance in his possession as is
sufficient to guard against any probable danger to human life from that substance,
COMMENT
The previous section deals with fire or combustible matter, this section deals with explosive
substance. Other provisions of both the sections are alike.
287. Negligent conduct with respect to machinery.—Whoever does, with any machinery,
any act so rashly or negligently as to endanger human life or to be likely to cause hurt or
injury to any other person,
or knowingly or negligently omits to take such order with any machinery in his possession or under his
care as is sufficient to guard against any probable danger to human life from such machinery,
COMMENT
This section renders any rash or negligent conduct in respect of machinery punishable.
Machinery is dangerous to human life if proper care is not taken in its working. If an owner of a
machinery compels any person to work in an unsafe condition in a manner likely to endanger
human life, he shall be punished under this section.
288 Negligent conduct with respect to pulling down or repairing building.—Whoever, in pulling down
or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to
guard against any probable danger to human life from the fall of that building, or any part thereof, shall be
punished with imprisonment of either description for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.
COMMENT
This section provides punishment for negligent conduct in respect of pulling down or
repairing building. However any injury complained of must be the direct consequences of such
negligent conduct
289. Negligent conduct with respect to animal.—Whoever knowingly or negligently omits to take such
order with any animal in his possession as is sufficient to guard against any
324 [ S. 290
INDIAN PENAL CODE
probable danger to human life, or any probable danger or grievous hurt from such animal, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine which may extend to
COMMENT
In this section a person who does not take sufficient care of any animal in his possession
which may endanger human life shall be punished. The words "any animal" includes both wild and
domestic animal. Any person who keeps wild animals such as tiger or beer, which escapes and
causes damage shall be punished. Those persons who are in possession of such animals have a
primary duty to protect the public against the mischief resulting for such animal being ai. large.
290. Punishment for public nuisance in cases not otherwise provided for.—Whoever
commits a public nuisance in any case not otherwise punishable by this Code, shall be punished
with fine which may extend to two hundred rupees.
COMMENT
This section deals with punishment for public nuisance falling within the definition given in
section 268 of the Code but not punishable under any other section.
291. Continuance of nuisance after injunction to discontinue.— Whoever repeals or
continues a public nuisance, having been enjoined by any public servant who has lawful
authority to issue such injunction not to repeat or continue such nuisance, shall be punished
with simple imprisonment for a term which may extend to six months, or with fine, or with
both.
COMMENT
. Under this section if a person repeats or continues a public nuisance after he is enjoined by a
public servant not to repeat or continue it, he shall be punished. Under sections 142 and 143 of the
Code of Criminal Procedure a Magistrate is empowered to forbid an act of public nuisance.
292. Sale etc. of obscene books.—(1) For the purposes of sub-section (2), a book,
pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be
deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or
(where it comprises two or more distinct items) the effect of any one of its items, is, if taken
as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to
all relevant circumstances to read, see or hear the matter contained or embodied in it.
(2) Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner, puts into circulation or for
purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his
possession, any obscene book, pamphlet, paper, drawing, painting, representation or figure or any
other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or
having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited
or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to
believe that any such obscene objects are, for any of the purposes aforesaid, made, produced,
purchased, kept, imported, exported, conveyed, publicly exhibited, or in any manner put into
circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to
engage in any act which is an offence under this section, or that any such obscene object can be
procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment of either description for a term which may extend to
two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent
conviction, with imprisonment of either description for a term which may extend to five years, and also with
fine which may extend to five thousand rupees. Exception.—This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure—
(i) the publication of which is proved to be justified as being for the public good
on the ground that such book, pamphlet, paper, writing, drawing, painting, representation
or figure is in the interest of science, literature, art or learning or other objects of
general concern, or
(ii) which is kept or used bona fide for religious purposes ;
(b) any representation sculptured, engraved, painted or otherwise represented on, or
in—
(i) any ancient monument within the meaning of the Ancient Monument and
Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used
for any religious purpose.
COMMENT
Sections 292- and 293 were amended by Act XXXVI of 1969. Clause (1) to the section
explains specifically the connotation of the expression obscenity.
Clause (2) of the section punishes a person who sells or in any manner conveys publicly the
obscene books or any other material of the same effect. The section makes exception in respect of
any representation, sculptured, engraved or painted on or in any ancient monument. Where a person
is charged for having been in the possession of an offending book, an offence under this section
325 [ S. 290
INDIAN PENAL CODE
would only be constituted if possession of the book was for the purposes of its sale. But if such a
book is sold to a customer, the seller would be liable for an offence under sub-section. (2) of this
section.
Obscene.—The main test of obscenity is whether the tendency of the matter charged as
obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into
whose hands a publication of this sort may
fall.1
In this connection the interest of our contemporary society and particularly the influence of
the book on it must not be overlooked.2 in considering the question of obscenity of a publication,
the Court has to see whether a class, not an isolated case, into whose hands the book, article or story
falls suffer in their moral outlook or become depraved by reading it or might have impure and
lecherous thoughts aroused in their minds.3
A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust, revulsion
and boredom where as the obscenity has the tendency to deprave and corrupt those whose minds are
open to such immoral influences. A novel written with a view to expose evils prevailing in society
by laying emphasis on sex and use of slangs and unconventional language did not make it obscene.4
Cases.—It was held in B. Rosaiah v State of A.P.,S that where accused was a mere spectator
of the blue film and it was not alleged that he had intentionally exhibited or arranged exhibition of
the blue film so as to reflect complicity of the accused in the exhibition of the same, this
interposition as a mere spectator to the exhibition of a blue film without any further complicity
cannot be taken to be amounting to abetment of the main offence.
293. Sale, etc. of obscene objects to young person.—Whoever sells, lets to hire, distributes exhibits or
circulates to any person under the age of twenty years any such obscene object as is referred to in the last
preceding section, or offers or attempts so to do, shall be punished on first conviction with imprisonment
1. Hicklin's case, (1868) L.R. 3 Q.B. 360, See also Ranjit D. Udeshi, (1962) 64 Bom. L.R. 356.
2. Ranjit D. Udeshi, (1965) 1 S.C.R. 65.
3. Chandrakant Kalayandas, A.I.R. 1970 S.C. 1390.
4. Samaresh Bose and another v. Amal Mitra and another, 1986 Cr. L.J. 24 (S.C).
5. 1991 Cri. L.J. 189 (A.P.).
of either description for a term which may extend to three years and with fine which may extend to two
thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either
description for a term which may extend to seven years, and also with fine which may extend to five
thousand rupees.
COMMENT
This section provides for enhanced punishment to those who sell, distribute, exhibit or circulate any
obscene object to persons under the age of twenty years. 294. Obscene acts and songs.—Whoever, to
the annoyance of others,
(a) does any obscene act in a public place, or
(b) sings, recites or utters any obscene songs, ballad or words in or near any
public place,
shall be punished with imprisonment of either description for a term which may extend to three months,
COMMENT
Annoyance.—For an act to be punished under this section, it must cause annoyance either to
a particular person or persons in general. The words "to the annoyance of others" do not limit it to
mean the person who is the intended victim of the obscene act of the accused.1
Where the accused had used abusive and obscene words against a medical doctor in a public
place, the accused would be liable under this section because the fact that the doctor and some other
members of the public were impelled to complain about the abusive or obscene words uttered by
the accused was sufficient indication of the fact that they were all annoyed by the use of such words
in a public place.2 But if the abusive language is not used in a public place, there would be no
liability under this section.
Obscene act.—Indecent exposure of one's person or sexual intercourse in a public place will
be punished under this section. Where the accused a Rikshawala stopped his Riksha near two young
girls previously unknown to him and while addressing the girls uttered the following words to the
hearing of other persons : "Ao Meri Jan Merey Rikshey Per Baith Jao. Mein Tumko Pahuncha
Doonga. Mein Tumhara Intezar Kar Raha Hun." The words were held clearly offensive to the
chastity and modesty of the girls and were likely to personate the mind of hearers including the
girls.3
Public Place.—Obscene act must have been done in a public place. Acts mentioned in clause
(b) must be done in or near a public place. Indecent exposure of one's person in an omnibus, 4 in a
public urinal,5 or in a place where the public go6 falls under this section.
326 [ S. 290
INDIAN PENAL CODE
In K.P. Mohammad v. State of Kerala,7 an important question relating to obscenity was
raised. The question was whether the carbaret dance is covered by the expression "obscene" and if it
is so, can its exhibition in hotels and restaurants be stopped? The High Court of Kerala while
throwing light on the history of cabaret dance observed that if exhibition of cabaret dance in public
places such as hotels, restaurants, is in accordance with the standards of our country then its
exhibition may be permitted and no restriction can be imposed on it.
1. Zqfar Ahmad Khan v. The State, A.I.R. 1963 All. 105.

2. Patel H.M. MaUagowda v. State of Mysore, 1973 Mad. L.J. (Cr.) 115.
3. Zafer Ahmad Khan v. The State, A.I.R. 1963 All. 105.
4. Holmes case, (1853) Dears Cr. C. 207.
5. Harm, (1871) L.R. I.C.C.R. 282.
6. Wellard, (1884) 14 Q.B.D. 63.
7. 1984 Cr. L.J. 745 (Ker.).
In Deepa v S.I. of Police,1 in response to an advertisement about performance of cabaret

dance in a posh hotel, some persons purchased highly priced tickets and after witnessing the dance
made a complaint under section 294 of the Code as the dance was so obscene that it caused
annoyance to them. It was held that persons attending a cabaret show in a hotel can complain that
annoyance was caused by the obscenity of the performance thereby attracting section 294 of the
Penal Code. It was further held that an enclosed area in posh hotel where cabaret dance is
performed, restricting entry to persons purchasing highly priced tickets is a public place. Otherwise
any public place could be made a private place by enclosing the same and restricting the entry to
persons who can afford payment of huge amount. Entry to a hotel just like a cinema house, is not
restricted to anybody who is ready to pay for it. Only because the area is enclosed and entry is
restricted to those who opt to make payment it does not cease to be a public place. So also previous
advertisement of what is going to be performed cannot have the effect of converting a public place
into a private place and obscenity into something which is not obscene. The court also refused to
accept the argument that sections 87 and 88 of the- Code bar such a complaint merely because
persons attended the show with full knowledge of what was going to be performed. If such an
argument is accepted an obscene performance could be had with impunity before an exclusively
willing crowd even in a public place. Sections 87 and 88 cannot come into play in these cases where
the interest of the society is involved. No crime can be obviated by consent. So also considerations
of the interest of those who are running the show for profit or those who conduct the performance
for livelihood and the enjoyment and satisfaction of those who derive pleasure by seeing the
performance willingly cannot outweigh the interest of the society which should be of paramount
consideration.
In Deepa v S.I. Police,2 the Kerala High Court distinguished the present case with an earlier
case of K.P. Mohammad v. State of Kerala,1 decided by it. In K.P. Mohammad's case it was held
that cabaret by itself is not in any way obnoxious if understood in the correct sense in which it
ought to be understood. Those were writ petitions concerning the right to perform cabaret dances in
restaurants. The decision in that case was only that there cannot be any objection so long as it does
not become obscene performance or performance in nudity. In Deepa's case the performance was so
obscene that it caused annoyance to some of the onlookers and therefore an offence under section
294 was said to have been committed.
In P. Kullaiah Swamy v. Sub-Inspector of Police, Jaunmalamadugu,4 the theatre of the
petitioner in the name and style of M/s. Sairam Picture Palace was seized and sealed for screening
of obscene film although they had licence for running the theatre. The proprietor of the theatre and
some others were arrested also. Trial was held for offence under section 294 of the Indian Penal
Code.
It was held by the Supreme Court that in so far as arrest of the persons, who are alleged to
have committed the offence under section 294 of Indian Penal Code which is a cognizable offence
and seizing five reels of the offending film
1. 1986 Cri. L.J. 1120 (Kerala).
2. Ibid.
3. 1984 Cri. L.J. 745 (Kerala).
4. 2003 Cri. L.J. 2488 (S.C).
327 [ S. 294-A
INDIAN PENAL CODE
is concerned, there cannot be any objection, for they directly relate to the commission of the
offence. Sealing and seizing of theatre, is however, not authorised in law on allegation that the
licensee of the theatre is screening obscene or pornographic films, licence is cancelled or suspended
and theatre cannot be used for screening any films. However at the stage of investigation the police
do not have any powers to seize the cinema theatre or projector. Therefore the action of police is
without jurisdiction and not authorised by law. It must be remembered that public interest and
public welfare cannot always be as perceived by the authorities enforcing law. If the law permits
certain action, the authorities, however wide their powers might be, cannot come to conclusion that
doing otherwise would sub-serve public interest.
294-A. Keeping lottery office.—Whoever keeps any office or place for the purpose of drawing any
lottery not being a State lottery, or a lottery authorised by the State Government, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine, or with both.
And whoever publishes any proposal to pay any sum, or to deliver any goods, or to do or forbear
from doing anything for the benefit of any person, on any event or contingency relative or applicable to
the drawing of any ticket, lot, number or fugure in any such lottery, shall be punished with fine which
may extend to one thousand rupees.
COMMENT
Any person who keeps lottery unless authorised by the Government shall
be punished under this section. Lottery amounts to gambling as both of them are
games of chance. The section makes punishable (1) the keeping of offices or
places for drawing lotteries, and (2) the publication of any advertisement relating
to them. ^
Ingredients.—The section includes the following two ingredients :—
1. Keeping of any office or place for the purpose of drawing any lottery.
2. Such lottery must not be authorised by any Government.
A lottery is a distribution of prizes by lot or chance without the use of any skill. Such
transactions or competitions which require skill for winning prizes are not lottery.
[ S. 296
CHAPTER XV OF OFFENCES RELATING TO

RELIGION
295. Injuring or defiling place of worship with intent to insult the religion of any class. —Whoever
destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with
the intention of thereby insulting the religion of any class of persons or with the knowledge that any class
of person is likely to consider such destruction, damage or defilement as an insult to their religion, shall
be punished with imprisonment of either description for a term which may extend to two years or with
fine, or with both.
COMMENT
In this section a person who intentionally insults the religion of any class or defiles any place
of worship shall be punished. The object of this section is to prevent those persons who
intentionally wound the religious feelings of others by injuring or defiling a place of worship.
Ingredients.—The section requires two things to constitute an offence :—
1. Destruction, damage or defilement of (a) any place of worship, or (b) any object
held sacred by a class of persons.
2. Such destruction, etc., must have been done (i) with the intention of insulting the
religion of a class of persons, or (ii) with the knowledge that a class of persons is likely to
consider such destruction, etc., as an insult to their religion.
Defiles.—The meaning of this word is not restricted to acts that would make an object of
worship unclean as a material object, but extends to acts done in relation to the object of worship
which would render such object ritually impure.1 It does not only mean making dirty but it means
making ceremonial pollution.
Cases.—The damaging or destroying of a sacred thread normally by a person, who is not
entitled under the Hindu custom to wear it or for whom the wearing of the sacred thread was not
part of his ceremonial observance under the Hindu religion, in assertion of a mere claim to higher
rank, was held to be not insult to his religion.2
295-A. Deliberate and malicious acts intended to outrage religious feeling of any class by insulting its
religion or religious belief.—Whoever, with deliberate and malicious intention of outraging the religious
feeling of any class of citizens of India, by words either spoken or written, or by signs or by visible
representations or otherwise, insult or attempts to insult the religion or the religious beliefs of that class,
shall be punished with imprisonment of either description for a term which may extend to three years, or
COMMENT
This section deals with deliberate and malicious acts intended to outrage religious feelings of
any class, by insulting its religion or religious beliefs. Under this section a person who deliberately
and maliciously outrages the religious feelings of others shall be punished. The provocative and
outrageous remarks should be such as are bound to be regarded by any reasonable man as grossly
offensive and deliberately intended to outrage the feeling of any class of citizen of India.
1. Sivakoti Swami, (1885) I Weir 253.

2. $heo Shankar, (1940) 15 Luck 696.
In Sujata Bhadra v. State of West Bengal,1 the petitioner, a citizen of India filed a petition for
setting aside order of forfeiture of book "Dwikhandita" written by Taslima Nasreen of Bangladesh.
The alleged objectionable material related to Vol. Ill of her autobiographical trilogy. She herself a
woman (professing Muslim religion) had written the alleged offending part in context of the status
of women in the society in Bangladesh emanating from adoption of Islam as a State religion. She
was expressing her own view and political thoughts/philosophy in relation to the Constitution of
Bangladesh of which secularism was one of its salient features since deviated from. In the third
volume of the said book offending passages are written in context of position of women in her
motherland. It was held by the Calcutta High Court that the book does not reflect any intention of
outraging religious feelings to insult religion or religious belief of that class of citizens in India.
Intention of author is not deliberate and malicious for achieving any object of religious hatred. The
order of forfeiture of the book was set aside. In order that a book may fall within the ambit of
Section 295-A of I.P.C. it has to be read as a whole and cannot be read in piecemeal. The offending
passage cannot be read out of context or central theme of the book.
296. Disturbing religious assembly.—Whoever, voluntarily causes disturbance to any
assembly lawfully engaged in the performance of religious worship or religious ceremonies, shall
be punished with imprisonment of either description for a term which may extend to one year,
COMMENT
Under this section any person who voluntarily causes disturbance to any assembly held for
religious worship or for performance of religious ceremonies shall be punished.
Ingredients,—The section requires the following three ingredients—
1. There must be caused a voluntary disturbance.
2. The disturbance must be caused to an assembly engaged in religious worship or
religious ceremonies.
3. The assembly must be lawfully engaged in such worship or ceremonies, i.e., it
must be doing what it has a right to do.
297. Trespassing on burial places etc.—Whoever, with the intention of wounding the
feelings of any person or of insulting the religion of any person, or with the knowledge that
the feelings of any person are likely to be wounded, or that the religion of any person is likely
to be insulted thereby,
commits any trespass in any place of worship or on any place of sepulture or any place set apart for the
performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human
corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies.
shall be punished with imprisonment of either description for a term which may extend to one year, or
COMMENT
This Section punishes a person who trespasses on burial places or on places of sepulture The
essence of the section is an intention, or knowledge of likelihood, to wound feelings or insult
religion and when with that intention or knowledge trespass on a place of sepulture, indignity to a
corpse, or disturbance
1. 2006 Cri. L.J. 368 (Cal.).

[ S. 296
S. 298 ] OF OFFENCES RELATING TO RELIGION 399

to persons assembled for funeral ceremonies, is committed the offence under this section is
complete.1
- Trespass in any place of worship.—Trespass under this section implies not only criminal
trespass but also an ordinary act of trespass with the intention specified in section 441. 2 Trespass
here means any violent or injurious act, committed in a place of worship with such intention or
knowledge as is defined in this section. 3 In a case where some persons had sexual connection inside
a mosque, they were held guilty under this section.4
Indignity to human corpse.—Where a patient dies while under operation by a doctor who
after the death removes the liver of the deceased for transplantation to another patient, without the
knowledge and consent of the deceased's wife, his only heir, who lodges a complaint, the doctor
would he liable under this section for offering indignity to human corpse
298. Uttering words etc. with deliberate intent to wound religious feelings.—Whoever, with the
deliberate intention of wounding the religious feeling of any person, utters any word or makes any sound
in the hearing of that person or makes any gesture in the sight of that person or places, any object in the
sight of that person, shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine, or with both.
COMMENT
Under this section if any person deliberately wounds the religious feelings of any other
person by uttering words or making any gesture in presence of that person, he shall be punished.
The purpose of this section is that no person can be justified in wounding with deliberate intention
the religious feelings of his neighbours by words, gestures or exhibitions.
1. Burhan Shah. (1887) P.R. No. 26 of/. 1887.

2. Jhulan Sain, (1913) 40 Cal. 548. /'
3. Mustan, (1923) 1 Ran 690; Sanoo, A.I.R. 1941 Kar. 316.
4. Maqsud Hussain, (1923) 45 All. 529.
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY

OF OFFENCES AFFECTING LIFE
299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death or
with the intention of causing such bodily injury as 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.
Illustrations
(a) A lays sticks and turf over a pit, with intention of thereby causing death or with the knowledge that death is
likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed. A has
committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely to
cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, but A has
committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush ; A not knowing that
he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not
intend to kill B, or to cause death by doing an act that he knew was likely to cause death.
Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease
or bodily infirmity and thereby accelerates th'i death of that other, shall be deemed to have caused his death.
Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall
be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death
might have been prevented.
Explanation 3.—The causing of the death of a child in the mother's womb is not
homicide. But it may amount to culpable homicide to cause\the death of a living child, if any
part of that child has been brought forth, though the childmay not have breathed or been
completely born. \
COMMENT \
Homicide.—Homicide is the killing of a human being by a human being.' It may either be
lawful or unlawful. Lawful homicide includes several cases falling under Chapter IV of the Penal
Code dealing with General Exceptions. Unlawful homicide is of the following kinds :
(i) murder (sec. 302);
(ii) culpable homicide not amounting to murder (sec. 304);
(iii) causing death by negligence (sec. 304A); and
(iv) suicide (sections 305 and 306).
Ingredients.—The following are essentials of culpable homicide :—
1. Causing of death of a human being;
2. Such death must have been caused by doing an act;
3. The act must have been done :
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely
to cause death; or
(iii) with the knowledge that the' doer is likely by such act to
(1) Whoever causes death.—Death means death of human being. It does 1. Stephen; Digest
of Criminal Law.
cause death.
not include the death of an unborn child, such as a child in the mother's womb. But in view of
explanation 3 it may amount to culpable homicide to cause death of a living child if any part of the
child has been brought forth, though the child may not have breathed or been completely born.
However, it is not necessary that the person whose death has been caused must be the very person
whom the accused intended to kill. The offence of culpable homicide is complete as, soon as any
person is killed by the accused whose mental state is of the kind mentioned in ingredient no. 3 stated
above, i.e., where the accused causes death by doing an act either with the intention of causing
death, or with intention of causing such bodily injury which was likely to cause death, or with the
knowledge that he was likely by such act to cause death.
(2) By doing an act.—Death may be caused in a number of ways; such as by poisoning,
starving, striking, drowning, or communicating some shocking news, etc. Act here includes illegal
omission also. An omission is illegal if it be an offence, if it be a breach of some direction of law, or
if it be such a wrong as would be a good ground for a civil action. Therefore, death caused by illegal
omission will also amount to culpable homicide. Where a gaoler voluntarily causes death of a
prisoner by omitting to supply him food, or a nurse voluntarily causes death of a child entrusted to
her care by omitting to take it out of a tub of water into which it has fallen, or a jail doctor
voluntarily causes death of a prisoner by omitting to supply him medical care, the gaoler, the nurse
or the doctor shall be guilty of murder. A, unlawfully inflicted an injury on D's vital organ certain to
result in death if not treated, as B the guardian of D (who was a minor) refused to get him medically
treated because he desired A to be hanged for the murder of D. D, succumbed to the injury. Here B.
the guardian would be liable for causing the death of the minor because he knew that by illegal
omission to provide necessary medical aid he was likely to cause D's death. A omits to give food to
B. who is a beggar. Here A commits no offence because unlike the cases discussed above B has no
other claim on A than that of humanity. A is a peon stationed by authority to warn travellers from
attempting to ford the river. A omits to tell B that a river is swollen so high that B cannot safely
attempt to ford it and by this omission voluntarily causes B's death. This is murder. It would be
again a murder if A is a guide who contracted B to conduct B because then he would owe a
contractual legal obligation as opposed to a mere humanitarian duty of a passerby who though
aware with the dangers does not care to warn.
Death caused by effect of words.—Death may also be caused by effect of words such as by
making some communication to another which caused excitement which results in death although it
would be difficult to prove that the person, who spoke the words, anticipated from them an effect
which except under very peculiar circumstances and in very peculiar constitutions no word would
produce. A with the intention or knowledge aforesaid, relates some exciting or agitating news to B
who is in a critical stage of a dangerous illness; B dies in consequence. A will be liable of culpable
homicide. Similarly, A with the intention or knowledge aforesaid, gives B his choice whether B will
kill himself, or suffer lingering torture; B kills himself by taking poison. A would be liable for
culpable homicide. These two illustrations were proposed in the original draft of the Code.
3. (i) Intention to cause death.—Intention means the expectation of the consequence in
question. When a man is charged with doing an act, of which the probable consequences may be
highly injurious, the intention is an inference of law resulting from the doing of the act. 1 Intention is
inferred from the acts of the accused and the circumstances of the case. 2 Thus a deliberate firing by
a loaded gun at once leads to inference that the intention was to cause death. The existence of
intention is not to be inferred unless death follows as a natural and probable consequence from the
act. For instance, where death is caused by a blow, which would not cause the death of a healthy
person because the person whose death is caused suffered from a disease, it would not be fair to
infer intention or knowledge. This is so because in such a case the consequence is not natural or
probable consequence of the act done and therefore, it can be said that in the case the accused never
contemplated the result. Hence some extrinsic evidence would be necessary to show the real intent
or knowledge in such a case, e.g., that the offender was aware of the disease and the blow was given
on the diseased part.
An intention also includes foresight of certainty. A consequence is deemed to be intended
though it is not desired when it is foreseen as substantially certain.3
Intention of causing death is not the intention of causing the death of any particular person.
Illustration (a) to this section shows that a person can be guilty of culpable homicide of a person
whose death he did not intend. 4 In that illustration A had the intention or knowledge of causing
somebody's death, though not of a particular person, who treads over the turf believing the ground
to be firm.
3. (ii) With the intention of causing such bodily injury as is likely to cause death. —The
intention of the offender may not be to cause death, it would be sufficient if he intended to cause
such bodily injury which was likely to cause death. The connection between the 'act' and the death
caused by the act must be direct and distinct; and though not immediate it must not be too remote. If
the connection between the act and death is obscure or if it is obscured by concurrent causes, or if it
is broken by the intervention of the subsequent causes, or if the time gap between the act and the
death is too long, the above condition is not fulfilled. Grover, J. has rightly emphasised in
Mohammed Hossein's case5 that "it is indispensable that the death should be clearly connected with
the act of violence, not merely by chain of causes and effects, but by such direct influence as is
calculated to produce the effect without the intervention of any considerable change of
circumstances". The difference between the two expressions 'intention of causing death' and
'intention of causing such bodily injury as is likely to cause death' is a difference of degrees in
criminality. The latter is a lower degree of criminality than the former. But as, in both the cases, the
object is the same, the law does not make any distinction in punishment.6
The expression 'intention to cause such bodily injury as is likely to cause death' merely means an intention to cause a particular injury, which injury is, or turns out
to be, one likely to cause death. It is not the death itself which is intended, nor the effect of injury.7 It is not necessary that the consequences of
1. Per Lord Ellenborough, C.J. in Dixon (1814) 3 M. & S. 11, 15.

2. Ghufar, (1887) P.R. No. 62 of 1887.
3. Rama, A.I.R. 1969 Goa 116.
4. Ballan, 1955 Cr. L.J. 1448.
5. (1864) W.R. (Cr.) 31.
6. Nga Min Po, (1900) 1 U.B.R. (1897-1901) 288.
7. King v. Aung Nyun, A.I.R. 1940 Rang. 259.
S. 299 ] INDIAN PENAL CODE, 1860 403
the injury are foreseen, it would be sufficient that there is an intention to cause injury, which injury
is likely to cause death.
In Sumer Singh,1 A, gave blows on the head of B which he intended or knew to
be likely to smash the victim's skull. A would be taken to have known that he was likely
to cause the death of B. A was, therefore, guilty of culpable homicide 1 not amounting to
murder. In Naga Po Nyein,2 the accused gave one blow to B with a long wooden handle
on the thinner part of the head. He was liable not for murder but for culpable homicide
as the weapon could not be said to be a formidable one and the intention to kill could
not be presumed. *
3. (iii) With the knowledge that he is likely by such act to cause death.— Knowledge is a
strong word and imports a certainty and not merely a probability. 3 Here knowledge refers to the
personal knowledge of the person who does the act. 4 If A, B, C attack M with lathis, the blows
being directed at the head of M, they must be fixed with the knowledge that they were likely to
cause death.5 In Mansel Pleydell? the accused kicked the abdomen of B with such violence as to
cause fracture of two ribs and rupture of the spleen which was normal. B died. It was held that the
accused knew that the abdomen is a most delicate and vulnerable part of the human body and
should, therefore, be presumed to have kicked with the knowledge that by so kicking he was likely
to cause death.
In Jamaludin,1 the accused in exercising the spirit of a girl whom they believed to be
possessed, beat her resulting in her death. They were held guilty of culpable homicide. Similarly
where A kills B for presentation to Kali Devi, A would be liable for culpable homicide.
A and B successively and independently wound C with murderous intent. C dies due the loss
of blood caused by both wounds together when he would not have died from either alone. A and B
both will be liable for the offence pf culpable homicide not amounting murder under section 299,
IP. Code. Both have inflicted injury with murderous intent. Although injury caused by either alone
may not have caused death of C but each one of them knew that the wound was likely to cause
death of C.
In Vineet Kumar Chauhan v. State of U.P? accused and victim were neighbours. The
incident in question preceded by altercation between accused and family members of victim.
Accused returned to his house in a huff, took revolver of his father and fired indiscriminately
towards victims house, victim while trying to close door of his house was hit by bullet which
proved fatal. It was held that accused at best can be said to have knowledge that use of revolver was
likely to cause death and hence he is liable to be convicted under Section 299 CI. (3) and not under
Section 300, IP. Code.
Sometimes even gross negligence may amount to knowledge.—If a person acts
negligently or without exercising due care and caution he will be presumed to have knowledge of
the consequences arising from his act. In Kangla? the accused struck a man with a club, bona fide
believing that the object was not a human being but something supernatural, but, through terror,
without taking any steps to satisfy himself that it was not a human being. Since they had acted with
gross negligence without satisfying himself about the object which he struck, he was guilty of
culpable homicide not amounting to murder.
1. (1941) O.W.N. 791.
2. A.I.R. 1933 Rang. 338.
3. Gabbar Pandey, (1927) 7 Pat. 638.
4. Sunder Singh, (1939) 14 Luck. 660.
5. Harmam, (1921) 22 Cri. L.J. 726.
6. A.I.R. 1926 Lah. 313.
7. (1892) Unrep. Cr. C. 603.
8. 2008 II Cr. L.J. 1367 (S.C).
9. (1898) 18 A.W.N. 163.
What is necessary in such cases is that death must be the direct consequence of the act of the
accused. Therefore, where death was because of some other cause of which the accused was
unaware, he cannot be held guilty of culpable homicide.
Knowledge is to be gathered from the act of the accused and the circumstances of the case.
For instance, Ketabdi Mundul,1 the accused kicked his wife aged about 9 years, on her back with his
barefoot, she fell down and died immediately. It was held that accused was guilty of culpable
homicide not amounting to murder because to kick a girl of tender age with such 'force as to
produce rupture of abdomen in a healthy subject, is an act of such character that no reasonable man
could be ignorant of the likelihood of its causing death. X and 2 others were illegally cutting Sal
tree. A, a forest guard who had been to the reserve forest to check illegal falling of trees demanded
permit from X. On being rebuked and threatened by X and others A kept quiet and tried to retreat.
Thereafter X and others stopped cutting the tree and chased A with axes in their hands, X gave a
blow with the handle of his axe on the back of A who fell down. X then assaulted him on his legs
and knees' joints with the blunt side of the axe. As a result of the head injury A died. X was
prosecuted for the murder of A. X would be liable for culpable homicide as injury inflicted was not
sufficient in the ordinary course of nature to cause death.
In Luxman Kalu,2 A had gone to his father-in-laws house to fetch his wife. There was some
quarrel between A and his brother-in-law B on the question whether his wife should accompany
him by the night train the same day or by the morning train the next day as desired by their in-laws.
During the quarrel A lost his temper and gave one blow with a knife on the chest of B which
resulted in his death. It was held that A was guilty under the second part of section 304 for culpable
homicide not amounting to murder because death was caused by doing an act with the knowledge
that it was likely to cause death.
In Ganesh Dooley,3 a snake charmer exhibited in public a venomous snake, whose fangs he
knew had not been extracted, and to show his own skill, but without any intention to cause harm to
anyone, placed the snake on the head of one of the spectators. The spectator in trying to push off the
snake was bitten, and died in consequence. The snake charmer was held guilty of culpable homicide
not amounting to murder.
In another case Mst. Tulsa,4 an young widow of twenty, wishing to elope with her lover at
night, wanted to elude the vigilance of her parents, who were naturally opposed to her elopement.
With a view to intoxicate them she mixed dhatura seeds in their food. The parents were seized with
illness because of the effects of dhatura and were removed to the hospital where they ultimately
recovered. She was convicted under section 307 and the court held, "we must presume that people
of her age have the ordinary knowledge of what the results may be of administering dhatura."
In Sreenarayan,5 A struck B on the head a single blow with a piece of firewood. B fell down
bleeding from her nose and became senseless. A anc* his wife W thought that B was dead and so
they placed B on a wooden pyre and set fire to it which caused her death. It was held that A and W
were not liable to be convicted under section 302 as they had no intention to cause her death but
were liable to be convicted under section 304 Part II as they had acted with gross negligence. The
rule is that when one acts with gross negligence, law imputes to the offender the necessary
1. (1879) 4 Cal. 764.

2. (1968) 71 Bom. L.R. 244 (S.C).
3. (1879) 5 Cal. 351; See also Poonai Fatemah, (1869) 12 W.R. (Cr.) 7.
4. Tulsa, I.L.R. 20 All. 143.
5. (1947) 27 Pat. 67.
knowledge.
In a similar case Madras High Court had applied the law in a different manner. In this case
the accused struck his wife a blow on her head with a ploughshare, which, though not shown to be a
blow likely to cause death, in fact rendered her unconscious. The accused believing her to be dead,
in order to lay the evidence of false defence of suicide by hanging, hanged her on a beam by a rope,
and thereby caused her death by strangulation. He was held guilty of causing grievous hurt and not
for culpable homicide.1 It is submitted that the view of Madras High Court is not sound. The view
expressed by Patna High Court in Sreenarayan case is a better one.
It is submitted that both Madras and Patna cases are substantially similar but the accused in
the two cases, have been differently dealt with. In Madras case also since the accused had acted
with gross negligence, he should have been guilty for culpable homicide not amounting to murder
under section 304.
A intending to kill B inflicts on B a mortal wound and mistakenly thinking him dead throws
his body in a lake with the result that B dies by drowning. In this case A is liable for causing death
of B by grossly negligent act. A caused a mortal wound to B and mistook him to be dead. B dies
due to drowning. Since gross negligence implies knowledge therefore A is liable for committing
culpable homicide not amounting to murder under section 299 Indian Penal Code as A has acted
with gross negligence.
4. Death caused without intention or knowledge.—The offence of culpable homicide
presupposes an intention, or knowledge of likelihood of causing death. In the absence of such
intention or knowledge, the offence committed may be grievous hurt, or simple hurt. In those cases
where death is attributed to an injury which the offender did not know would endanger life or
would be likely to cause death and which in normal conditions would not be so, notwithstanding
death being caused, the offence will not be culpable homicide but grievous or simple hurt. Every
such case would depend upon the existence of abnormal conditions unknown to the offender. 2 A
person who voluntarily inflicts such injury as was likely to endanger life must always, except in the
most extraordinary and exceptional circumstances, be deemed to know that he is likely to cause
death. If the victim is killed, ordinarily the offence is culpable homicide unless the lack of intention
or the knowledge aforesaid is proved. 3 Once it is proved that the act was deliberate act and was not
the result of accident or rashness or negligence, the offence would be culpable homicide. 4 In the
course ofy an altercation between A and C on a dark night, the former aimed a blow with his stick
at the head of the latter. To ward off the blow C's wife W, who had a child on her arm intervened
between them. The blow missed its aim and fell on the head of the child causing severe injuries, due
to which the child died. It was held that, inasmuch as the blow, if it had fell upon the complainant
would have caused simple hurt, the accused was guilty of causing simple hurt.5
In a case B struck violent blows on the head and shoulders of a woman who was carrying an infant child in her arms. One of the blows fell on the child and killed
it while the woman received simple injuries. In this case B will be liable for causing simple hurt to the woman under section 323 but would be liable under section 304-A
1. Palani Gowulan, (1919) 42 Mad. 547.

2. Bai Jiba, (1917) 19 Bom. L.R. 823.
3. Mima. (1930) 32 Bom. L.R. 1143.
4. Abrahim Sheikh, A.I.R. 1964 S.C. 1263.
5. Chatur Natha, (1919) 21 Bom. L.R. 1101.
Indian Penal Code for causing death of the child by his negligent and rash act. B knew that the woman was carrying the child in her arms and his blows might hit the child.
Therefore he ought to have taken care. B caused the injury with the knowledge that it was likely to cause injury to the child as well and the amount of injury which would
cause only a simple hurt to an adult may cause death of an infant child. In this case if the woman had died on account of the blows then B would be liable for culpable
homicide not amounting to murder under Part LI of Section 304 Indian Penal Code. If the woman and child both were killed, then also B will be liable for causing culpable
homicide not amounting to murder under Section 304, Part II of the Indian Penal Code. This problem is different from Chaturnath? case because in that case the accused
aimed his blows after an altercation to someone whose wife with a child in her arms had intervened and the child had died. In this case the blow was aimed at woman herself
and the accused knew that she was carrying an infant child in her arms.
Judicial decisions relating to deceased spleen appear to be most confusing and they create a
problem to the students. Therefore, with a view to make the point clear a discussion of some cases
is given here.
Hurt,—In Fox2 case the accused, dissatisfied and irritated by the lazy manner in which a
punkha coolie was managing a punkha, went up to him and struck him a few blows. The coolie,
who was suffering from diseased spleen, died from the injuries. The accused was held guilty of
causing hurt. In Punchanun Tantee? the accused after having been provoked by his wife, pushed
her with both arms so as to throw her with violence to the ground and when she fell down he
slapped her with his open hand. The woman died on account of the rupture of her diseased spleen.
He was held guilty of causing hurt.
Grievous Hurt.—In Idu Beg? there was some verbal wrangle between the accused and his
wife, in the course of which he gave her a blow on the left side with great force. She vomited and
bled from the nose and died in about an hour. It was found that death was caused by the rupture of
the spleen. The accused was held guilty of grievous hurt. In Megha Meeah,5 the accused gave a
blow with a light bamboo stick to the deceased who was suffering with diseased spleen on the
region of that organ. He was held guilty of causing grievous hurt.
A hit B a haemophiliac, on his right shoulder with a broken soda water bottle which had very
sharp edges. B died of excessive loss of blood in consequence. Evidence is brought on record to
show that A had not caused the said injury with the intention of causing B's death and that A did not
know that B was suffering from haemophilia. In this case A will be liable for causing grievous hurt
to B and not for culpable homicide because he did not know that B was suffering from haemophilia.
A neither intended to cause death nor intended to cause such bodily injury as was likely to cause
death nor he had the knowledge that his act was likely to cause death.
A hits B on his chest, who is a patient of tuberculosis of the lung and he dies as a
consequence of the the injury, which was otherwise ordinary. In this case the injury caused by A to
1. (1919) 21 Bom. L.R. 1101.
2. Fox, (1879) 2 All. 522.
3. (1866) 5 W.R. (Cr.) 97.
4. (1881) 3 All. 776
5. (1865) 2 W.R. (Cr.) 39.
B was an ordinary one. It was not of the nature likely to cause death of B but she died because she
was a patient of tuberculosis and this fact does not appear to be known to A who hit B on his chest.
Therefore A would be guilty of causing grievous hurt under section 325 of the I.P.C. and not for
culpable homicide.
Culpable Homicide.—In Kusa Majhi v. State of Orissa,1 the deceased admonished her own
son for not going for fishing with the co-villagers. Infuriated on this the accused, the son, brought
an axe and dealt blows on her shoulder and she died. There was no pre-plan or premeditation. The
blows were not on the neck or head region. The accused dealt blows likely to cause bodily injury
which was likely to cause death and he dealt blows on the spur of moment and in anger. Therefore,
it was held to be a case of culpable homicide falling under this section.
In Munnilal's2 case, the accused sat on the chest of D and began to strangle him and did not
desist despite intervention by his relations. D died owing to internal bleeding due to rupture of the
spleen which was enlarged. It was shown that the other injuries were not sufficient to cause death
had the spleen not been ruptured. The fact of the spleen being enlarged was not known to the
accused. Here the accused was held guilty of culpable homicide under the second part of Section
304. D, a burglar breaks into a house carrying an unloaded pistol which he intends to use to frighten
the inmates of the house should he be detected. The owner of the house confronts the burglar who
thereupon points the empty gun at him. The owner dies of fright. In this case D would be liable for
culpable homicide not amounting to murder under second part of Section 304.
In Ramesh Kumar v. State of Bihar,7, H. N. L. Das, father of appellant was murdered. It is
alleged that appellant's father while going to his paddy field was surprised by respondents, namely,
Ram Prakash, Giani Mandal, Mohinder Baitha and Kusheshwar Rai (since deceased). The
respondents relieved the deceased of his loaded pistol, assaulted him with fist blows and kicks and
then neck of the deceased was tied with a rope and he died of strangulation. The accused were
sentenced under Section 302/34 by the trial Court but the High Court in appeal preferred to convert
the conviction under Section 304, Part II, IP. Code. Mr. Ramesh Kumar sob of deceased filed a
special leave petition against the order of the High Court. The Supreme Court did not deem it fit to
interfere with the judgment of the High Court because injuries were caused to the deceased only by
kicks and fist blows although they were in possession of weapons like pistol knife and lathi. Had
the accused shared the common intention to cause the death of the deceased, vnothing prevented
them from using the pistol. The circumstances show that in all vprobabilities the respondents did not
intend to cause death of the deceased and they wanted to severely assault him only.
Explanation 1.—According to explanation 1 a person who caused bodily injury to another
who is labouring under disordered disease or bodily infirmity, and thereby accelerates the death of
that other, shall be deemed to have caused his death. But one of the elements of culpable homicide
as contained in Section
1. 1985 Cr. L.J. 1460.

2. Munnilal, A.I.R. 1943 All. 853.
3. 1993 Cri L.J. 3137 (S.C).
339 S. 300
INDIAN PENAL CODE
299 must be present.1 That is, if the bodily injury so inflicted was not with such intention or
knowledge as required in Section 299 the offence is not culpable homicide.2
Explanation 2.—According to this explanation a plea that death could have been prevented
by resorting to proper remedies and skilful treatment is not allowed to be raised to defeat a
prosecution because it may not always be within the reach of a wounded man. 3 Therefore, if death
results from an injury voluntarily caused, the person who causes that injury is deemed to have
caused death, although the life of the victim might have been saved if proper medical treatment
have been given, and even if medical treatment was given but was not the proper treatment,
provided that the treatment was given in good faith by a competent physician or surgeon. 4 For
instance, where A had kicked his wife and surgeon administered brandy to her as restorative, some
of which went the wrong way and entered her lungs and which might have caused her death, it was
held that the accused was guilty of manslaughter.5
In Sobha,6 A caused simple injury to D and D subsequently died of septic meningitis which
developed on account of the use of wrong remedies and neglect in treatment. It was held that in
such a case the death cannot be said to have been caused by the bodily injury within the terms of
this Explanation and the accused cannot be held liable for culpable homicide under Section 304.
In Davis,7 A gave a blow to D, the injury so inflicted rendered an operation advisable. As a
preliminary to the operation, chloroform was administered to D who died during its administration
and it was agreed that the patient would not have died but for its administration. A was held liable
for manslaughter because he had caused an injury which in the opinion of competent medical men
necessitated the operation.
Explanation 3.—This explanation provides that causing of death of a child in the mother's
womb is not homicide. But it would be homicide to cause the death of a living child, if any part of
that child has been brought forth though the child may not have breathed or been completely born.
Thus complete birth is not a requisite. Instead of an uncertain period which it would be difficult to
define satisfactorily and which would in many cases of infanticide, greatly add to the difficulty of
proof a definite and readily ascertained point of time (that is, the time, when any part of the child is
brought forth) is fixed, to denote when the child may become a subject of culpable homicide.8
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—
2tuily.—If it is done with the intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm is caused, 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—
4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability,
1. Fox, (1879) 2 AH. 522.

2. Ismail (1917) 19 Cr. L.J. 319 : A.I.R. 1918 S.C. 560.
3. Krishnaswami, A.I.R. 1965 Mad. 261.
4. Sah Pai, (1936) 14 Rang. 643.
5. Mc Intyre, (1847) 2 Cox. 379.
6. (1935) 11 Luck. 401.
7. (1883) 15 Cox. 174.
8. M. & M. 231.
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.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes
him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder,
although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person
in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as
would act not in the ordinary course of nature kill a person in a sound state of health, here A, although he may
intend to cause bodily injury, is not guilty or murder, if he did not intend to cause death, or such bodily injury as
in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword cut, or club-wound sufficient to cause the death of a man in the
ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have
intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty
of murder, although he may not have had a premeditated design to kill any particular individual.
Exception 1.—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.
The above exception is subject to the following provisos :—
First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
340 S. 300
INDIAN PENAL CODE
Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such public servant.
Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of
private defence.
Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from
amounting to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This
is murder inasmuch as the provocation was not given by the child, and the death of the child was not caused by
accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending
nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not
committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z.
This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his
powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition,
and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him
from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch
as the provocation was given by a thing done in the exercise of the right of private defence.
(I) Z strikes B. B is by this provocation, excited to violent rage. A, a by-stander intending to take
advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the
knife. Here B may have committed only culpable homicide, but A is guilty of murder.
Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right
of private defence of person or property, exceeds the power given to him by law and causes the death of the
person against whom he is exercising such right of defence without premeditation and without any intention
of doing more harm than is necessary for the purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a
pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself
from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.
Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a
public servant acting for the advancement of public justice, exceeds the powers given to him by law, and
causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due
discharge of his duty as such public servant and without ill-will towards the person whose death is
caused.
Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue
advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or commits the
first assault.
Exception 5.—Culpable homicide is not murder when the person whose death is caused, being
above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Illustration
A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide.
Here, on account of Z's youth, he was incapable of giving consent to his own death; A has, therefore,
abetted murder.
COMMENT
Section 300 deals with the cases where culpable homicide is murder. Therefore, an offence
cannot amount to murder unless it falls within the definition of culpable homicide. Murder includes
culpable homicide, but a culpable homicide may or may not amount to murder. A case of culpable
homicide is murder if it falls within any one of the four clauses of Section 300. In order to ensure
justice in a murder trial the court should go by evidence produced before it. It should remain
dissociated from heat generated outside court room either through news media or through flutter in
public opinion.'
Clause 1—Act by which the death caused is done with the intention of causing death.—
As explained earlier in Section 299 act includes illegal omission also. Death may, therefore, be
caused by illegal omission as well. Thus where parents neglect to provide proper sustenance to their
children although repeatedly warned of the consequences and the child dies, it will be murder. 2 In
R. Venkalu? the accused set fire to the cottage in which D was sleeping, locking the door of the
cottage from outside so that D's servants who were sleeping outside might not come for heIP. He
also took active steps to prevent the villagers from rendering any help to the deceased. Here the
accused had an intention to kill D. Where a man stabs another in a vital part, he must be held to
have intended to cause death, and if death results either directly from the wound or iin consequence
of the wound creating conditions which result in a fatal disease, the person inflicting the wound is
guilty of murder.4
In State of Karnataka v. Gangadharaiah,5 the respondent married the deceased in or about the year 1971. Since then the respondent used to frequently come
home drunk and beat and ill-treat the deceased. On the fateful day in the evening of April 17, 1985 the respondent started quarrelling with his wife and when PW-5 tried to
1. State (Delhi Administration) v. Laxinan Kumar, 1986 Cr. L.J. 155 (S.C.)
2. Ganga Singh, (1873) 5 N.W.P. 44.-
3. A.I.R. 1956 S.C. 171.
4. Nga Dwe, (1904) 1 Cr. L.J. 909.
5. 1997 Cr. L.J. 4068 (SC).
341 S. 300
INDIAN PENAL CODE
intervene the deceased sent him back. At about 9 p.m. when the quarrel reached a high pitch, the deceased called her neighbour, Kala (PW-4) and asked him to fetch her
mother Narsamma (PW-6) who lived nearby. Before they could reach respondent gave a knife blow on the neck of his wife (deceased) which resulted in a severe bleeding
injury. On being so assaulted she started running away but fell down in front of a house. When Norasamma (PW-6) and Kala (PW4) reached they saw Papachhai lying dead.
Presence of accused at the time of incident was proved. Witnesses saw accused running away from his house after death of his wife and could be apprehended only after
three weeks. There was no material showing that eye-witness was either inimical or interested witness. It was held that in the light of the above facts and evidence inference
could be drawn that the accused alone and nobody else have committed murder of deceased. Therefore, accused was held liable for the offence of murder.
In M. Suseela v. State of Tamil Nadu,1 Selvaraj and Suseela, the wife of elder brother of
Selvaraj were tried for murder of Seethalakshmi, wife of Selvaraj (A-l) under Section 302 read with
Section 34, IP. Code. The accused Selvaraj and his elder brother's family were living together in
one room and the accused was a Rikshapuller. The deceased and the accused Selvaraj were married
in October, 1984 but were not having good relations. The deceased was being ill-treated and it was
also rumourred that Selvaraj was having illicit relations with Suseela. Being fed up with this
atmosphere, Seethalakshmi came to her parents' house but her mother, Vijayalakshmi (PW-1) and
father, Thygagarajan (PW-2) consoled her and sent her back. A few days before the incident the
accused and his brother Subramaniam, Suseela and deceased had come to the house of the parents
of Seethalakshmi in connection with some festival. On this occasion the accused insisted that his
mother-in-law should give him some money, but she could not meet this demand. The deceased
came back to his matrimonial house but a week thereafter her parents received a message that the
accused, were ill-treating their daughter. The quarrel was very well-known to the neighbours. On
the fateful day i.e., 11th April, 1985 the quarrel between the two accused and the deceased
continued for quite sometime which was witnessed by many neighbours. Shanmugham (PW-3)
inquired about the quarrel. At about 12.00 noon Krishnamurthi (PW-6) a close relative came to
meet Seethalakshmi and on inquiry the accused told him that she had gone to Kumbakonam. Soon
thereafter both the accused left on a bicycle. When Shanmugham returned at about 1.30 p.m.
Selavaraj (A-l) told him that Seethalakshmi had committed suicide and her body was hanging to the
ceiling. The accused requested him to help him in lowering down the dead body but he refused to
do so. The accused himself lodged F.I.R. at about 8.00 p.m. The case was based on circumstantial
evidence. But the court refused to accept it to be a case of suicide as the height of the roof and rafter
was 12 ft. and it appears a difficult task for Seethalakshmi to tie a Nylon Saree to the rafter in the
ceiling at such a height and then hang herself. It was further held that nail-scratch marks on neck of
deceased and fracture of hyoid bone due to strangulation and indications for suffocation shown in
post mortem report proves that the deceased died a homicidal death. There was no reliable evidence
on record except hearsay evidence to prove that the accused husband had illicit relations with his
sister-in-law and it was because of that she had participated in the said crime. Therefore conviction
of Suseela was set aside by giving benefit of doubt but the conviction of husband was upheld.
In Namdeo v. State of Maharashtra,1 the appellant Namdeo and the deceased Ninaji were
residing in one and the same village and relations between them were strained. The reason was that
the accused suspected that some of his animals died due to witch-craft played by the deceased. On
October 25, 2000. the deceased, Ninaji was sleeping in the back-yard of his house. At about 2.00 to
1. 1997 Cr. L.J. 4390 (SC).

3.00 a.m., Sopan, PW-6 son of deceased Ninaji heard shouts of his father calling "Bapare, Bapare".
On hearing the cry Sopan and his wife rushed towards the back of his house where his father was
sleeping. PW- 6, Sopan saw that the accused was giving axe blows on the head of his father Ninaji.
On seeing Sopan accused fled away from the place taking axe in his hand. Sopan chased him but
could not catch him. The medical opinion was that the injury was sufficient in the ordinary course
of nature to cause-death of the victim. The Supreme Court held that considering the nature of
weapon (axe) used by the accused and the vital part of the body (head) of the deceased chosen by
him for inflicting injuries, it was clear that the intention of the accused was to cause death of the
deceased. Therefore in the circumstances of the case it was covered by Section 300 of Indian Penal
Code and not Section 304 of Part II.
Clause 2—With the intention of causing such bodily injury as the offender knows to be
likely to cause death.—In case of an offence falling under this clause the mental attitude of the
accused is two-fold. First, there is intention to cause bodily harm and secondly, there is the
subjective knowledge that death will be the likely consequence of the intended injury. Here the
offender knows that bodily injury intended to be inflicted is likely to cause death of the person. It
applies to those special cases where the person injured is in such a condition or state of health that
his death would be likely to be caused by an injury which would not ordinarily cause the death of a
person in sound health and where the person inflicting the injury knows that owing to such
condition or state of health, he is likely to cause the death of the person injured. A case would fall
under this clause if the offender, having knowledge that a person was suffering from some disease
or was of unsound health, causes hurt to him which may not have been sufficient in the ordinary
342 S. 300
INDIAN PENAL CODE
course of nature to cause death had the deceased been of sound health, but which with the special
knowledge of the diseased condition of the deceased, his assailant must have known to be likely to
cause his death. Here knowledge on the part of the offender imports certainty and not merely a
probability.2
Cases.—In a case3 B administered arsenic to D, a boy of 9 years with the object of preventing the father of the boy from appearing as a witness against him. It
was held that B was guilty of murder. A woman of 20 years of age administered dhatura (a poisonous herb) to three members of her family. In this case it was held that the
administration of dhatura was likely to cause death although she might not have administered it with that intention.4 In another case a woman administered dhatura to her
husband to save herself from his quarrelsome tongue. He became ill, but did not die. She did not know what the
1. 2007 Cri. L.J. 1819 (S.C).

2. Gabbar Pandey, (1927) 7 Pat. 638.
3. Gaurishankar, (1918) 40 All. 360.
4. Tulsa, (1897) 20 All. 143.
344 OF OFFENCES AFFECTING THE HUMAN BODY [ S. 300
thing administered by her was as it was supplied to her by her lover. It was held that she was guilty under
Section 337 as she administered without care an unknown powder, but her lover was guilty under Section 307
read with Section 309.1 Where two men pursued an old man and each of them gave him a blow on the head with
such force that his skull was cracked, it was held that both of them were guilty of murder. 2
In Karu Marik v. State of Bihar? the accused gave blow with churra (sharp cutting weapon) on chest of
deceased. On deceased trying to run, accused caught hold of deceased's hair and threw her on ground and
inflicted two more blows on abdomen and back. Injuries inflicted were grievous in nature and dangerous to life
which resulted in causing death of deceased. It was held that from injuries caused it is clear that intention of
accused was at least to cause such bodily injury as was likely to cause death. Therefore conviction of accused for
murder was proper.
In Bavisetti Kameshwara Rao alias Babai v. State of A.P.? accused was a motor mechanic. Some verbal
altercation took place between accused and deceased. Thereupon accused inflicted injury on abdomen of
deceased with screw driver. Injury was 12 cms. deep damaging liver and spleen. Death was caused almost
instantaneously. It was held that accused could be said to have intended to cause injury sufficient to cause death.
Use of screw driver a common tool of mechanic cannot be said to be innocuous. The plea of accused that
incident was sudden and without premeditation is not tenable and accused was held liable to be convicted for
murder. It was also pointed out that solitary injury by itself was not sufficient to decide nature of offence but it
would depend on other attendant circumstances.
Clause 3—"Injury sufficient in the ordinary course of nature to cause death".—Where a
man intentionally inflicts bodily injury sufficient in the ordinary course of nature to cause death, he would be
liable for murder.5 If the probability of death is very great then the requirements of the third clause are satisfied
and the fact that a particular individual may because of specially skilled treatment or being in possession of a
particularly strong constitution have survived an injury, which would prove fatal to the majority of persons
subjected to it, is not enough to prove that such an injury is not "sufficient in the ordinaiy course of nature" to
cause death. Where a number of injuries are inflicted it is not necessary that each one of them should be
sufficient to cause death, it would be sufficient if cumulatively such injuries are sufficient in the ordinary course
of nature to cause death. 6 For the application of clause 3 two things need to be proved : one that the injury was
intentionally inflicted and secondly, that the injury inflicted was sufficient in the ordinary course of nature to
cause death of any person. That is, under this clause the emphasis is on the sufficiency of the injury was
sufficient in the ordinary course of nature to cause death or not depends upon the nature of the weapon used or
part of body on which the injury is caused.7
It was held in State of U.P. v. Virendra Prasad? that under clause third of section 300 of I.P.C. culpable
homicide is murder if both the following conditions are satisfied :
(i) that the act which causes death is done with the intention of causing
death or is done with the intention of causing a bodily injury; and
(ii) that the injury intended to be inflicted is sufficient in the ordinary course
of nature to cause death.
It must be proved that there was an intention to inflict that particular bodily injury which in the ordinary
course of nature was sufficient to cause death viz. that the injury found to be present was the injury that was
1. Bhagava, (1916) 12 Born. L.R. 54.

2. Ranjha, (1947) 49 P.L.R. 305.
3. 2001 Cri. L.J. 2615 (S.C).
4. (2008) 3 Cri. L.J. 2987 (S.C).
5. Bhola Bind, (1943) 22 Pat. 607.
6. Brij Bhukhan, A.I.R. 1957 S.C. 474.
7. Anda, A.I.R. 1957 S.C. 148.
8. 2004 Cri. L.J. 1373 (S.C).
intended to be inflicted. Thus, even if the intention of the accused was limited to the infliction of a
bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the
intention of causing death, the offence would be murder. Illustration (c) appended to Section 300
clearly brings out this point.
Distinction between Section 299 CI. (b) and Section 300 CI. (3).—It was held in Budhilal
v. State of Uttarakhand,1 that the distinction between Section 299 clause (b) and Section 300, Clause
(3) lies in that in case of former bodily injury is likely to cause death but in case of latter a bodily
injury is sufficient in the ordinary course of nature to cause death. The distinction is fine but real
and if overlooked may result in miscarriage of justice. Only the intention of causing the bodily
injury coupled with the offender's knowledge of the likelihood of such injury causing the death of
the particular victim is sufficient to bring the killing within the ambit of this clause.
It was further held that the difference between Section 299 CI. (b) and Section 300 CI. (3) is
one of the degree of probability of death resulting from the intended bodily injury. The word likely
in CI. (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility.
The words 'bodily injury' sufficient in the ordinary course of nature to cause death meant that death
will be the "most probable" result of the injury, having regard to the ordinary course of nature, under
clause Thirdly of Section 300, IPC. Culpable homicide is murder, if both the following conditions
are satisfied : i.e.
(a) That the act which causes death is done with the intention of causing death or is
done with the intention of causing a bodily injury; and
(b) That the injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death. It must be proved that there was an intention to inflict that particular
bodily injury which, in the ordinary course of nature was sufficient to cause death, viz., that
the injury found to be present was the injury that was intended to be inflicted.
Cases.—Where the accused dealt several blows with a fairly heavy lathi on the body of the
deceased causing fracture of two ribs, injury to pleura, and laceration and puncture of the right lung,
he was held guilty of murder.2 In Rajwant Singh,3 the accused covered the mouth of the deceased
with adhesive plaster, tied a handkerchief over the plaster, plugged his nostrils with cotton wool
soaked in chloroform, tied his hands and legs with rope and deposited him in a shallow drain with
his own shirt put under his head as a pillow. It was held that the acts of the accused were covered by
clause 3 of Section 300 and they were guilty of murder. In a case the accused inflicted a stab with a
sharp-pointed weapon which entered the upper part of the deceased's stomach causing rupture of it.
He was held liable for murder.
If a person stabs another in the abdomen with sufficient force to penetrate the abdominal wall
and the internal viscera he must be held to have intended to cause injury sufficient in the ordinary
course of nature to cause death.5
In Garasia Rajendrasinh Jethubhai v. State of Gujarat? D, the deceased in the presence of his
father F and brother B scolded the accused for easing near his place. A, left the place with a threat
that he would see him when they would meet alone. A week later A attacked D with a knife and
dealt three blows on vital parts like neck. Two of the blows were given after D fell down after the
first blow. According to the medical evidence the first injury had cut internal carotid artery and
tributaries of internal jugular vein and was sufficient in the ordinary course of nature to cause death.
The accused was held liable for murder.
B and C met each other in a drunken state and started to quarrel, during which
1. (2009) I Cri. L.J. 360 (S.C).
2. Babulal Biharilal, A.I.R. 1945 Nag. 931.
3. A.I.R. 1966 S.C. 1874.
4. Sunnumuduli, (1946) 25 Pat. 355.
5. Dil Mohammad, (1941) 21 Pat 250.
6. 1979 Cri. L.J. (NOC) 68 (Guj).
they abused each other. All this lasted for about half an hour when B ran to his own house, and came back with a heavy
pestle, with which he struck C a violent blow on the left temple causing instant death. It was held to be an offence under
clauses 2 and 3 of section 300.1 In another case,2 A killed one D by striking him one blow on the head with a long and
heavy bamboo. The nature of the injury indicated that very great force was used. It was held that although the weapon
used was not that would of necessity cause fatal injury, the force used was so great as to show that the accused intended
to cause injury sufficient in the ordinary course of nature to cause death and was, therefore, guilty of murder.
In lndar Singh Bagga Singh v. State of Pepsu? the accused gave six blows with a lathi on the person of the
accused. One of the injuries, which later on proved fatal, was kept under observation. The deceased developed slight
symptoms of compression of brain. These symptoms gradually increased, and the deceased became absolutely
unconscious, extradural haemorrhage set in and proved fatal. It was held by the Supreme Court that the lathi not being
iron rod and the deceased being a young man and strongly built the accused could not be held to have been actuated with
the intention of causing the death of the deceased and that the injury, despite medical evidence, was not sufficient in the
ordinary course of nature to cause death in view of the fact that the deceased survived for three weeks and that according
to the evidence on record injury of this kind was not incurable. But the accused knew that he would be causing such
bodily injury, as was likely to cause death and the offence committed by him would fall under section 304 Part I and not
under section 302.
In Charan Singh v. State of Punjab, and Lakha Singh v. State of Punjab* the two appeals were heard together.
The facts are that both the appellants were hiding in the sugarcane field of Dial Singh and as soon as they saw Karamjeet
Singh and others reached near the field, the appellants emerged therefrom and came towards Karamjeet Singh with
gandasa in their hands. Lakha Singh (A-l) then, gave a lalkara to teach a lesson to Karamjeet Singh and immediately,
thereafter gave a gandasa blow from sharp side on the right side of the head of Karamjeet Singh. (A-2) Charan Singh
assaulted Karamjeet Singh with his gandasa on the back side near the shoulder of Karamjeet Singh and when he fell
down A-l gave another gandasa blow near his right ear. It was held that these circumstances of hiding together and
giving gandasa blows indicated that both the accused had shared a common intention to teach a lesson to Karamjeet
Singh who had slapped A-l on the previous night. The eye-witnesses had categorically stated that accused gave gandasa
blows on vital part of deceased and in the opinion of the doctor the injuries were sufficient in the ordinary course of
nature to cause death. The accused were, therefore, rightly convicted under section 302 read with section 34 IP. Code.
In Prakash Hiraman Hingane v. State of Maharashtra,5 the appellant had given ten blows with knife to the
deceased who was unarmed. Merely because there was some grappling between the appellant and the deceased, possibly
because the deceased tried to see that the blow did not hit him, it cannot be said that the accused was entitled to give
these blows in exercise of right of private defence. Further the injuries caused by the accused/appellant to the deceased
were intentional and they were found sufficient in the ordinary course of nature to cause death. Under the circumstances
the accused was held liable under section 302 I.P.C. and not under section 304, Part II, I.P.C.
In Ramashraya and another v. State of Madhya Pradesh? on 19-12-1987 when the deceased Ajeet and his son
Laljee were doing some work in their paddy field, the appellant came there in their bullock cart. It was alleged that the
appellants wanted to drive their bullock cart through the tewda field of deceased which was objected to by him and there
ensued a quarrel between Ajeet and the appellants. Appellant Kripa Ram tried to hit the deceased on his head but the
blow fell on the shoulder of the deceased.
1. Dasser Bhooyan, (1867) 8 W.R. (Cr.) 71.
2. Nga Kluin, A.I.R. 1921 L.B. 4.
3. A.I.R. 1955 S.C. 439.
4. 1998 Cri. L.J. 657 (S.C.)
5. AIR 1998 S.C. 2211.
6. 2001 Cri. L.J. 1452 (S.C).
Seeing this Laljee came near his father, the deceased to save him, but Ajeet shouted "run away son, they are waiting for
you, do not come this way." According to prosecution both the appellants inflicted severe injuries on the deceased Ajeet
and he fell down on the ground. Seeing the altercation and beating being given to his father, Laljee ran away and on the
way met Hirday Kumar. They returned to the place of incident and saw Ajeet lying dead on the ground. The appellants
were convicted under section 300/34, Indian Penal Code. The counsel for the appellants argued that there was no
premeditation and the quarrel took place all of a sudden pursuant to a wordy altercation and the appellants had not taken
undue advantage, therefore the offence committed will not amount to murder but would amount to offence under section
304, Part II, Indian Penal Code. It was held by the Supreme Court that though there was sudden quarrel, series of
injuries were caused by accused on skull and all over the body of deceased. Both accused had brutally attacked the
deceased, hence intention to cause death can be inferred from nature of injuries. Therefore the requirements of clause
third of section 300, Indian Penal Code are fulfilled and the conviction of accused persons under section 300 read with
section 34 was held to be proper.
In Setta v. State of Tamil Nadu? on 22-08-1995 at about 3.30 p.m., Babu, friend of elder brother of deceased met
the deceased at the bus stop and deceased was seen with blood-stained injuries. On being questioned by Babu, deceased
informed him that the appellants 1 to 3 and one another had beaten him. The deceased gave a report to the police and
while the deceased and PW-12 were returning home and passing through college road appellants No. 1 to 3 were seen
standing with weapon. On seeing the deceased, the accused appellant removed a knife which he had kept concealed and
cut the deceased on the left side of his head which caused injury on the left eye brow. He also inflicted injury on the
right ear by the knife. The deceased fell down. Once again appellant inflicted cut on the head of the deceased, the other
appellant No. 2 cut the deceased on his back as well as on his right knee. PW-12 intervened and he also sustained
injuries on the wrist on account of assault by the appellant No. 2 which was warded off.
The occurrence was seen by PW-1 to 8 and PW-12. The victim was taken to hospital where he was examined by
the doctor.
The Supreme Court held that in view of evidence of eye-witnesses the accused No. 1 assaulted deceased on his
vital parts of body with knife concealed by him. His conviction under Section 302 was held proper since fatal injuries
inflicted by him were sufficient to cause death of the deceased. However, co-accused was convicted under Section 304
Part I and the other co-accused was convicted under Section 326 IPC taking into consideration place where injuries were
inflicted by them which were not on vital parts of the body of the deceased.
It was further held that for conviction under clause thirdly of Section 300 it must be shown that (i) the act which
causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and that
(ii) the injury intended to be inflicted is suificient in the ordinary course of nature to cause death. Thus even if the
intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of
nature and did not extend to the intention of causing death, the offence would be murder.
In Amar Sigh Munna Singh Suryawanshi v. State of Maharashtra? the accused, the husband and his wife were
living with their children in one room and besides their children only husband and wife were present in house at the time
of occurrence. The husband poured kerosene oil on body of wife and lit fire was proved. Husband failed to prove as to
why he was absconding for about a month after incident.
It was held that under the above circumstances husband must be held to be aware that such act was likely to
cause death in ordinary course of nature. There was no evidence that the death was the result of accident. Therefore,
conviction of accused for murder was upheld.
1. 2006 Cri. L.J. 3889

(S.C).
Clause 4—Knowledge of imminently dangerous act.—This clause comprehends generally the

commission of imminently dangerous acts which must in all probability cause death or cause such bodily injury as is
likely to cause death. When such an act is done with the knowledge that death might be the probable result and without
any excuse for incurring the risk of causing death or injury as is likely to cause death, the offence is murder. This clause
applies to cases of dangerous action without an intention to cause specific bodily injury to any person, e.g., furious
driving or firing at a target near the public road. 1 However, the act done must be accompanied with the knowledge that
the act was so imminently dangerous that it must in all probability cause (i) death, or (ii) such bodily injury as is likely
to cause death. Further, the accused must have committed the act without any excuse for incurring the risk of (a) causing
death; or (b) such injury as is likely to cause death. Thus a man who strikes another in the throat with a knife, 2 must be
taken to know that he is doing an act imminently dangerous to the life of the person at whom he strikes and that a
probable result of his act will be to cause that person's death.
In Ram Prasad's1, case the Supreme Court observed that although clause 4 of section 300 is usually invoked in
those cases where there is no intention to cause the death of any particular person the clause may on its terms be used in
those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the
person knows that the act is likely to cause death or such bodily injury as is likely to cause death. For example, causing
death by firing a loaded gun into a crowd or by poisoning a well from which people are accustomed to draw water.
It was pointed out in Budhilal v. State of Uttarakhand4 that clause (4) of Section 300 would be applicable where
the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a
particular person being caused from his imminently dangerous act, approximates to a practical certainty. Such
knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the
offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
Cases.—The accused poured kerosene oil upon the clothes of his wife Rajji and set fire to those clothes. As he
had no cause for incurring that risk, he committed an act so imminently dangerous that it was in all probability likely to
cause death or to result in an injury that was likely to cause death. 5 In Nga. Ba Tu? a snake charmer professed by
tatooing to render persons immune from the effect of snakebite, caused a poisonous snake to bite D whom he had
tatooed but who died. It was held that the burden of proving that the accused was justified in believing and in fact
believed that he could give immunity lay on him and because he failed to discharge that burden he was guilty of murder.
In another case the accused offered a child to a crocodile under a superstitious but a bona fide belief that the child would
be returned unharmed but the child was killed. He was held guilty of murder under this clause. 7
In Jagtar Singh v. State of Punjab? a sudden quarrel on a spur of moment arose out of a trivial reason on a
chance meeting between the accused and the victim. The accused caused a single blow by knife in chest of victim
resulting in his death. On these facts it was held that intention to cause death or causing particular injury could not be
imputed to the accused. There was no proof of premeditation or malice. Therefore, merely knowledge on the part of the
accused that he was likely to cause injury which was likely to cause death could be inferred.
_______In Gorachand Gopee9 Sir Barnes Peacock, CJ. pointed out that clause (4) is
1. Lai Bihari Lai v. Emperor, A.I.R. 1946 Nag. 120.
2. Judagi Mallah, (1929) 8 Pat. 911.
3. A.I.R. 1968 S.C. 881.
4. (2009) I Cr. L.J. 360 (S.C).
5. State of M.P. v. Ram Prasad, A.I.R. 1968 S.C. 881.
6. A.I.R. 1921 L.B. 26.
7. Bharat, (1920) 23 Cri. L.J. 179.
8. 1983 Cri. L.J. 852 (S.C).
9. 5 W.R. 45 (F.B.).
designed for that class of cases where the act of the accused is not directed against any one in particular but
there is that recklessness or negligence, which places the lives of many in jeopardy, of which the accused is
well aware. In Emperor v. Dhirajia,1 a young village woman left her home with her six months' old baby
in her arms on account of her husband's ill-treatment. After sometime her husband went out in pursuit of
her and when she heard him coming after her, she turned round in a panic, ran a short distance with the
baby on her arms and then jumped into an open nearby well. The baby died and the woman was rescued
and suffered minor injuries. She was charged with murder of the child and attempt to commit suicide. It
was held that an intention to cause the death of the child could not be attributed to her though she must be
attributed with the knowledge but the panic or fright, into which she was thrown on seeing her husband
pursuing her, was an excuse for incurring the risk and she was liable for culpable homicide not amounting
to murder.
In a case four accused persons were all armed with heavy sticks. They beat and the deceased who
was defenceless and armless fell down. They inflicted several blows completely smashing the skull after he
has fallen down. The accused were all held guilty of murder.2 In another case, the accused a woman left her
house as her life has become unbearable owing to domestic troubles. She went with her three children to a
well and jumped in it along with the children. She was saved but the children died. It was held that the
accused jumped into the well with the knowledge that it was so imminently dangerous that it must in all
probability cause the death of her children and, therefore, she was guilty of murder.3
A placed a bomb in a medical store and gave the people inside three minutes to get out before the
bomb exploded. 'B' an arthritic patient, failed to escape and was killed. The act of A was imminently
dangerous act. Therefore A will be liable for committing murder of B.
In Sahaj Ram v. State of Haryana? a constable fired five shots with his rifle at another constable, as
a result of which he died on the spot. It was held that having regard to the fact that the accused had used a
dangerous weapon like a rifle (being a police constable he must have known that it was a dangerous
weapon) and having regard to the fact that he had fired five shots, one of which was fired after the victim
was hit by a bullet and collapsed on the ground, it is impossible to accept the contention that the appellant
had not done the act with the intention of causing his death. It is naive to argue that intention was merely to
frighten him or to cayse him grievous hurt. The case falls under clause 4 to section 300 IP. Code.
A threat caused by incarnations,5 or a belief in witchcraft6 does not justify the causing of death. So
also 'divine influence or inspiration' cannot be pleaded in defence to a charge of an offence.7 This point was
made clear in a case where the accused had cut the deceased woman with a sword several times, and when
she had fallen down exhausted, surrounded her with hay and set fire to it inspite of the protests of the
relations of the deceased woman. She sustained several burn injuries and died the next day. The accused
pleaded that he did all this for the purpose of exorcising a devii which was believed to have possessed the
woman and that when doing all this he was beside himself owing to divine influence. It was held that such
a defence was not permitted by law and the accused was guilty of murder under clause 4 of section 300.
1. A.I.R. 1940 All. 486.
2. Kanhai, (1912) 11 A.L.J.R. 752.
3. Gyarsibai, 1953 Cri. L.J. 588.
4. 1983 Cri. L.J. 993 (S.C).
5. Gobadur Bhooyan, (1870) 13 W.R. (Cr.) 55.
6. Gcmdura Nayoko, (1882) 1 Weir 305.
7. Munniswami v. Emperor, 1937 M.W.N. 93.
Where a woman, with a motive to get rid of her husband, had administered in his food a fatal dose of
dhatura, the conclusion to be drawn is that she has committed murder unless her explanation is such that it
leads to a conclusion otherwise or creates a doubt in the mind of the Court,1
Distinction between sections 299 and 300.—The distinction between sections 299 and 300 was
made clear by Melvill, J. in R. v. Govinda.2 In this case the accused had knocked his wife down, put one
knee on her chest, and struck her two or three violent blows on the face with the closed fist, producing
extravasation of blood on the brain and she died in consequence, either on the spot, or very shortly
afterwards, there being no intention to cause death and the bodily injury not being sufficient in the ordinary
course of nature to cause death. The accused was liable for culpable homicide not amounting to murder.
For the purposes of comparison and bringing out the distinction clearly section 299 and section 300
may be put as follows :
Section 299 Section 300
A person commits culpable Except in the cases hereinafter
homicide, if the act by which the death excepted culpable homicide is murder,
is caused is done if the act by which death is caused is
done
(a) with the intention of causing (1) with the intention of causing death;
death;
(b) with the intention of causing (2) with the intention of causing such bodily
injury as is likely to cause such bodily injury as the offender death; knows to
be likely to cause the death
of the person to whom the harm is caused;
(3) with the intention of causing bodily injury to
any person, and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death;
(c) the knowledge that he is (4) with the knowledge that the
likely by such act to cause death. act is so imminently dangerous that it
must in all probability cause death, or such bodily
injury as is likely to cause death
(J) Section 300 begins .with the words "except in the cases hereinafter excepted culpable homicide
is murder." This means that culpable homicide is not murder if the case falls within any of the exceptions
mentioned in section 300.3
(2) Whenever there is an intention to cause death it would always be a case of murder unless the case falls within one of the exceptions to section 300.4
1. Mined w/o Hudkia v. Emperor, A.I.R. 1938 Nag. 318.

2. (1876) 1 Bom. 342.
3. Reg. v. Gorachemd Ge>pe, 5 W.R. (Cr.) 45 per Peacock, C.J.
4. Ibid.
350 I S. 300
INDIAN PENAL CODE
(3) The essence of distinction between clause (b) of section 299 and clause (2) of section 300
lies in the knowledge on the part of the offender that the person harmed is likely to die The offence
is murder if the offender knows that the particular person injured is likely, either from peculiarity of
constitution, or immature age, or other special circumstances, to be killed by an injury which would
not ordinarily cause death.1 The distinction is made clear by illustration (b) to section 300. This
clause is intended to meet cases of enlarged spleen and liver which may be easily ruptured by a
blow of no great violence in which case the degree of criminality depends upon the knowledge of
the offender of these faces. Clause (b) of section 299 postulates no such knowledge.
(4) A comparison of clause (b) of section 299 with Clause (3) of Section 300 would show that
the offence is culpable homicide if the bodily injury intended to be inflicted is likely to cause death;
it is murder if such injury is sufficient in the ordinary course of nature to cause death. The
distinction is fine but appreciable. 2 The decision of most of the doubtful cases depends on a
comparison of these two clauses. The word "likely" means "probably." When the chances of a thing
happening are greater than its not happening, we say the thing will "probably" happen. When the
chances of its happening are very high, we say that it will 'most probably' happen. An injury
sufficient in the ordinary course of nature to cause death only means that "death will be the most'
probable result of the injury having regard to the ordinary course of nature". The expression does
not mean that death must result. Thus the distinction between clause (b) of section 299 and clause
(3) of section 300 would depend very much upon the degree of probability or likelihood of death, in
consequence of the injury. As Melvill, J. has observed : "Practically it will generally resolve itself
into a consideration of the nature of the weapon used. A blow from the fist or stick on a vital part
may be likely to cause death; a wound from a sword in a vital part is sufficient, in the ordinary
course of nature, to cause death." 3 It may be pointed out that it is not so much the nature of the
weapon used as the nature of the injury inflicted that would determine the difference here made. The
weapon may be the same, but it may cause injuries of different proportions. It depends upon the
constitution of the man, the part of the body injured and the degree of violence used.
(5) Clause (c) of section 299 and Clause (4) of section 300 appear to apply to cases in which
there is no intention to cause death or bodily injury but knowledge that the act is dangerous and
therefore likely to cause death. Both clauses require knowledge of the probability of the act causing
death. Clause (4) requires knowledge in a very high degree of probability.
The following factors are necessary :
(i) That the act is imminently dangerous;
(ii) That in all probability it will cause death or such bodily injury
as is likely to cause death; and
(iii) That the act is done without any excuse for incurring the risk.
;. Whether the offence is culpable homicide or murder, depends upon the
degree of risk to human life. If death is likely result, it is culpable homicide; if it is the most
probable result, it is murder. Furious driving and firing at a mark near a public road are cases of this
1. Reg. v. Govinda, (1876) I.L.R. 1 Bom. 342 Per Melvill, J. ~~

2. Reg. v. Govinda. (1876) I.L.R. 1 Bom. 342 Per Melvill, J.
3. Reg. v. Govinda, (1876), I.L.R. I Bom. 342. .
description.
Where a man drives a buggy in a rash and negligent manner, or furiously along a narrow
crowded street, he might know that he was likely to kill some person, but he might not intend to kill
anyone. In such a case he would be guilty of culpable homicide unless it should be found as a fact
that he knew that his act was so imminently dangerous that must in all probability cause death or
such bodily injury, etc. as to bring the case within clause (4) of section 300. But if a man drives a
S. 300 ] OF OFFENCES AFFECTING THE HUMAN BODY 351
buggy furiously, not merely along a crowded street, but intentionally into the midst of a crowd of
persons, it would probably be found that he knew that his act was so imminently dangerous that it
must in all probability cause death or such bodily injury, etc. as in Clause (4) of section 300.1
Where a gentleman kills someone by driving furiously to a railway station in a bid to catch a
train to go to a distant place it was found that he could not arrive at his destination in time for his
business by any other train and that at the time of furious driving it wanted only two minutes to the
time of train's starting; that the road was so crowded that he must have known that he was likely to
run over some one, and to cause death. If his intention was to save the train, but that he must have
known that he was likely to cause death, he would be guilty of culpable homicide not amounting to
murder unless the judge should also find that the risk of causing of death was such that he must have
known, and did know, that his act must in all probability cause death within the meaning of Clause
(4) of section 300.2
Firing at a target near the public road may be an act which is known to be likely to cause
death and the liability would, therefore, be for culpable homicide not amounting to murder. But
firing in a crowd of men would be an act which must be said to be known as imminently dangerous
act and if the act was done without any excuse for incurring the risk, the liability would be for
murder.
Commenting upon clause (c) of section 299 and clause (4) of section 300 Plowden, J., in
Barkatulla's3 case observed : "It may be useful here to point out that the Indian Penal Code
contemplates that when an act is culpable homicide, whether amounting to murder or not amounting
to murder, by reason of the act being done with the knowledge described in Clause (3) of section
299 [or with the knowledge described in Clause (4) of section 300], which knowledge satisfies the
definition of Clause (3) of section 299, an intention to cause death or to cause such bodily injury as
is likely to cause death must be present. When intention of either kind co-exists with the knowledge
described, the knowledge merges in the intention, and a higher degree of guilt is imputable. That the
degree of guilt is higher when a murderous intention exists (which intention seems to be deemed to
import the specified knowledge), and is lower when the knowledge is unaccompanied by such
intention, seems a necessary inference from the language of section 304 as to punishment.
"Putting it shortly, all acts of killing done with the intention to kill, or to inclict bodily
injury likely to cause death, or with the knowledge that death must be the most probable
result, are prima facie murder, while those
1. Per Peacock, C.J., in Gorachand Gopee, (1866) 5 W.R. (Cr.) 45 (F.B.).

2. Per Peacock, C.J., in Gorachand Gopee, (1866) 5 W.R. (Cr.) 45 (F.B.).
3. (1887) P.R. No.;32 of 1887.
352 [ S. 300
INDIAN PENAL CODE
committed with the knowledge that death will be a likely result are culpable homicide not
amounting to murder."1
In Augustine Saldanha v. State of Karnataka,2 on 17-5-1989 Paul Saldanha (the deceased) and Felex Saldanha (Pw-1) were returning to their houses after viewing
a movie. When they reached near the house of the appellants, accused Augustine and Rocky along with Henry Saldanha (acquitted) assaulted the deceased. They were armed
with sticks. As a result of the assaults the deceased breathed his last while Pw-1 suffered grievous injuries. The incident took place between 10.00 to 10-30 p.m. On the next
day in the morning around 5.10 a.m. Pw-8 Assistant Sub-Inspector Mulki police station received information from an unknown person of Kumeri that two bodies were lying
at Shadgiri of Alkala village. He made entries in the General Diary and proceeded to the spot along with other police personnel. At the spot he found the dead body of the
deceased and Pw-1 in injured condition. They were taken to hospital and complaint was recorded. Pw-8 registered the F.I.R. after coming to the police station and despatched
the same to the Magistrate at Mulki, which was received at about 11.00 a.m. Investigation was undertaken on the basis of the report of Pw-1 and after completion thereof
charge-sheet was submitted. Further on the basis of the information given by the accused while in custody recoveries were made. In the complaint the informant Pw-1 had
stated that he could see assailants by focussing a torch. He had lost consciousness temporarily, but when he was in sense, could hear that Pws-3 and 4 i.e., the two taxi drivers
were asked by the accused to shift him and deceased to different places; but they refused to do so. In court apart from the evidence of Pw-1 the evidence of Pws 3 and 4 were
also tendered and pressed into service to substantiate the accusations. The Trial Court at Mangalore found the evidence of Pw-1 to be not believable and directed acquittal.
The Trial Court doubted the credibility of the complaint (Exhibit P-l) because the injury sustained by Pw-1 was so serious that he was given treatment in the emergency room
and it was highly improbable that he would have been in a position to give statement. While Pw-8 Assistant Sub-Inspector stated that he had recorded the complaint and
handwriting of the complaint was similar to those in which Exhibits P-8 to P-10 (panchnamas) were written. Prosecution version was also doubted because Pw-2 stated at one
place that he had been taken out of the hospital at the time of spot inspection, whereas, subsequently he stated that Pw-1 was not taken out. There were exaggerations and
improvements and there was no specific mention about identification by torch and moonlight in exhibit P-l as was stated in court. Only in the first information report it was
mentioned that witness was holding a torch. The court also found that recovery of torch from the spot was doubtful. It was noted that the torch was broken and Pw-1 did not
say as to how the torch was broken. There was no explanation as to how the shirt of Pw-1 was torn and this indicated that there was some violence. The Trial Court also noted
that, that Pw-1 did not specifically say as to why Pws-3 and 4 declined to take the dead body of deceased and Pw-1 to a different place, though Pws-3 and 4 gave details in
court. Another circumstance to doubt the version of Pw-1 was that there were several injuries on the body of the deceased and the Pw-1, while Pw-1 stated that one blow each
was given to the deceased and to him. The High Court found that each of the reasons given by the. Trial Court suffered from vulnerability. The High Court found that the
evidence of Pw-1 was credible and cogent. The evidence of Pws-3 and 4 clearly establish the role of accused persons and the veracity of prosecution version. The High Court
found that the conclusions drawn by the Trial Court were erroneous. Therefore the order of acquittal was reversed by the High Court.
It was held by the Supreme Court that the High Court has rightly concluded that the
conclusions drawn by Trial Court were fallacious and based on magnification of trifle and
unimportant materials which in no way affected credibility of prosecution version. The Supreme
Court considered as to which was the appropriate provision to be applied in the present case. In the
opinion of the Supreme Court culpable homicide is genus and murder its specie. All murders are
culpable homicide but not vice- versa. For the purpose of fixing punishment, proportionate to the
gravity of the generic offence, the Indian Penal Code practically recognises three degrees of
culpable homicide. The first is culpable homicide of the first degree. This is the greatest form of
culpable homicide which is defined in Section 300 as "murder". The second may be termed as
"culpable homicide of the second degree". This is punishable under the first part of Section 304.
Then there is "culpable homicide of the third degree". This is the lowest type of culpable homicide.
This is punishable under the second part of section 304 of Indian Penal Code.
In this case the Supreme Curt explained the distinction between murder and
culpable homicide not amounting to murder with the help of following table :
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which the death culpable homicide is murder if the act
is caused is done— by which the death is caused is done—
1. Per Straight, J. in Ida Beg, (1881) 3 All. 776.

2. 2003 Cri. L.J. 4458 (S.C).
S 300 1 OF OFFENCES
AFFECTING THE HUMAN BODY 353
(1) with the intention of causing death, or

Intention (2) with the intention of causing such
(a) with the intention of causing death; or bodily injury as the offender knows to be
(b) with the intention of causing such bodily likely to cause the death of the person to
injury as is likely to cause death; or whom the harm is caused, or
(3) with the intention of causing such
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
354 [ S. 300
INDIAN PENAL CODE
Knowledge
(c) with the knowledge that the (4) with the knowledge that the
act is likely to cause death. act 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 bodily injury as is mentioned above. Clause (b) of Section 299
corresponds with clauses (2) and (3) of Section 300. The mens rea required under clause (2) is the
knowledge possessed by the offender regarding the particular victim being in such peculiar
condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding
the fact that such harm would not, in the ordinary way of nature, be sufficient to cause death of a
person in normal health or condition. The intention to cause death is not an essential requirement of
clause (2). Only the intention of causing the bodily injury coupled with the offenders knowledge of
the likelihood of such injury causing the death of the particular victim, is sufficient to bring the
killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b)
appended to Section 300.
(2) Clause (b) of Section 299 does not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of section 300 can be where the assailant causes
death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver
or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person
as a result of rupture of the liver, or spleen or the failure of the heart, as the case may be. If the
assailant had no such knowledge about the disease or special frailty of the victim, nor an intention
to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence
will not be murder, even if the injury which caused the death, was intentionally given.
(3) In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the
corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature"
have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a
bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but
real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of
Section 299 and clause (3) of section 300 is one of the degree of probability of death resulting from
the intended bodily injury. To put it more broadly, it is the degree of probability of death which
determines whether a culpable homicide is of gravest, medium or the lowest degree. The word
likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere
possibility. The words "bodily injury...sufficient in the ordinary course of nature to cause death"
mean that death will be the most probable result of the injury, having regard to the ordinary course
of nature.
(4) For cases to fall within clause (3), it is not necessary that the offender intended to cause
death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause
death in the ordinary course of nature.
The ingredients of clause (3) of Section 300 may be analysed as follows :— (1) Prosecution
must establish, quite objectively, that a bodily injury is present.
(2) The nature of the injury must be proved. These are purely objective
investigations.
(3) It must be proved that there was an intention to inflict that particular bodily
injury, that is to say that it was not accidental or unintentional, or that some other kind of
injury was intended.
Once the above three elements are proved to be present, the inquiry proceeds farther
and
(4) It must be proved that injury of the type just described made up
of the three elements set out above is sufficient to cause death in the
ordinary course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the offender.
The question, so far as the intention is concerned, is not whether he intended to kill or to
inflict injury of a particular degree of seriousness but whether he intended to inflict the injury in
question and once the existence of the injury is proved, the intention to cause it will be presumed
unless the evidence or the circumstances warrant an opposite conclusion. Illustration (c) appended
to section 300 clearly brings out this point.
S 300 1 OF OFFENCES AFFECTING THE HUMAN BODY 355
In the present case the incident took place in a dark night when visibility was poor but
identification was possible because the victims and the assailants were known to each other.
Therefore, there is nothing wrong in Pw-1 identifying the accused persons. The fact remains that in
the dark night obviously one cannot move without a torch or some other lighted object. In fact, in
Exhibit P-l also there is mention of a torch.
It needs to be noted that only one blow was given in the dark night. Though it cannot be said
as a rule of universal application that whenever one blow is given application of section 302 of
Indian Penal Code will be ruled out and that even a single blow delivered with a heavy or dangerous
weapon on a vital part of the body would make the offence a murder. On the peculiar facts found in
the present case, the court felt that clause 'thirdly' of section 300 cannot be applied. The blow was
said to have been delivered with a stick and in pitch dark night time in the forest surroundings of the
area where it occurred. It could not reasonably be stated with any certainty that the accused chose
that vital part of the body to inflict the injury and that the blow was aimed without any of such
specific intention and which could have landed on the head due to so many other circumstances
than due to any positive intention. Therefore the conversion of conviction of appellant Augustine
Saldanha from Section 302 of Indian Penal Code to Section 304 Part II and custodial sentence of
eight years was held to meet, the ends of justice.
Tn Sarbjit Singh v. State of Uttar Pradesh? the Supreme Court made an attempt to distinguish
between culpable homicide and murder. In this case the accused and the father of the deceased were
not on good terms. He along with certain other persons attacked at the family of the deceased and
attempted to destroy their hut. During the incident the accused lifted up the deceased, who was a
child and threw him on the ground. He received injuries in his head and
1. 1983 Cri. L.J. 961 (S.C).

356
INDIAN PENAL CODE
died. The Court held it to be a ease of culpable homicide and not of murder. The Court further held
that every death cannot be viewed backward, so as to charge the one who caused death as a
murderer. Primarily in any action taken by the criminal, his state of mind is very relevant. The state
of mind may either disclose intention or knowledge and that is a very relevant factor. These are a bit
illusory factors which should be deduced from surrounding circumstances such as the genesis of the
occurrence, the motive, the weapon used, the seat of injury, the ferocity of the attack etc. It is a well
established fact that every grown up man is presumed to know the natural and probable
consequences of his own act.
Therefore, to sum up it may be said that where there is an intention to kill, the liability is for
murder. But in all other cases the difference between culpable homicide and murder is merely a
question of different degrees of probability that death would ensue. It is culpable homicide where
death must have been known to be the probable result. It is murder where it must have been known
to be the most probable result.
In a trial for murder the accused can' be convicted or acquitted on the testimony of a single
witness. No corroboration would be necessary provided the witness is reliable.'
In Siddique v. State of U.P.,2 one Sayeed, his father Waheed Bux and servants Lalla Ram
PW-2 and Shrikrishna were sleeping in the mango grove of Rameshwar Dayal. The appellants A-l,
A-4 and A-6 were armed with lathi, A-2 and A-3 were armed with Kanta and A-5 was armed with
knife, attacked and killed Sayeed by causing injuries with the weapons they were carrying. When his
father Waheed Bux tried to save him, he was also given blows causing as many as a dozen injuries.
When his servant Lalla Ram tried to intervene he was also beaten up causing simple injuries to him.
The doctor who examined PW-2 and PW-4 found that two injuries inflicted on PW-2 were simple
and were caused by blunt object and three of the eleven injuries inflicted on PW-4 were also caused
by blunt object. Another doctor who conducted autopsy of the dead body of the deceased found
twelve injuries on the body of the deceased. Against their conviction by the trial court the accused
persons appealed to the High Court which also confirmed the conviction. On a perusal of the
evidence the High Court founed that PW-1, brother of deceased had come running from a distance
of about 300 yards and had taken the injured witnesses in a Tonga to the police station and the F.I.R.
was lodged promptly. The depositions of injured witnesses PW-2 and PW-4 were fully corroborated
by medical evidence and the presence of those witnesses could not be doubted. The High Court
confirmed the conviction under section 300, Indian Penal Code and hence this appeal to the
Supreme Court. It was held that in view of the fact that depositions of eye-witnesses and statement
of complainant were fully corroborated by the medical evidence, the F.I.R. having been lodged
promptly and the statements of injured witnesses establishing the identity of accused persons the
conviction and sentence awarded to them is just and proper. It was further pointed out that the
accused, the deceased and injured witnesses were not strangers to each other as they belonged to the
same village. They knew each other very well as they were competitors in business.
In State of U.P. v. Kapildeo Singh? during the night of April 27th and 28th, 1976 at about 2
a.m all the six respondents along with some co-villagers had gone to the kutiya of Baba Nageshwar
Das to settle the dispute regarding land of Kapildeo. As Baba insisted that the land having been
given to the deity it was not possible for him to compromise. A quarrel took place. First Ram Das
1. State of U.P. v. Satish Chandra and others, 1985 Cri. L.J. 1921.
2. AIR 1999 S.C. 1690.
was assaulted and thereafter Baba was assaulted. Ram Das died on the spot. Two prosecution eye-
witnesses were examined, one PW-1 Baba Nageshwar Das and the other PW-6 Radhey Shyam. But
Radhey Shyam had not seen the assault but had seen the accused runing away from that place soon
after the offence was committed. The trial court did not believe the evidence of PW-6 but relying
upon the evidence of PW-1 convicted the respondents. The High Court after reappreciating the
evidence held that Baba could not have identified the assailants as there was no light and he was an
old man of 108 years with weak eyesight. Taking these facts into consideration and also the delay of
three months in recording his statement the High Court disbelieved his evidence and acquitted the
respondents. The State preferred an appeal to the Supreme Court. It was held by the Supreme Court
that the accused persons were alleged to have entered kutiya of deceased at late night to settle land
dispute and assaulted deceased with barcha and lathis. Injuries on person of deceased were found to
have been caused by sharp edged weapon. Testimony of eye-witnesses was not corroborated by
medical evidence and evidence of witnesses as to when assailants had come at place of occurence is
also inconsistent, therefore the acquittal of the respondents was proper.
357
INDIAN PENAL CODE
In State of Haryana v. Bhagirathi,2 the respondent was tried and convicted for murder of his
son Subhram who was born blind. Bhagirathi and his brother Kanharam together had 32 acres of
ancestral property. The other two co-accused Hamuman and Kheta who were also tried and
convicted were the sons of Kanharam. The share of deceased in the ancestral property had been
settled as l/6th. Bhagirathi and his wife were not having good relations, therefore she was living
seperately and the deceased Subhram was living with his mother Jamna. Bhagirathi was residing
along with his brother Kanharam and his two nephews— the two co-accused. Dispute arose between
Subhram on one side and his father Bhagirathi and the two co-accused on the other side regarding
enjoyment of land. Perhaps the accused would have thought that Subhram being blind may not get
married and so on his death the properties would revert back to the family. At the age of about 33
years negotiations were going on about the marriage of deceased. A couple months prior to his
murder Subhram excuted a mortgage of his share of the properties to PW-10 Prabhati for a sum of
rupees twenty two thousand. When Prabhti tried to cultivate the mortgaged land it was resisted by
the respondent and his two nephews and so proceedings under section 107 Cr. P. Code were
initiated against both the parties. In the meanwhile Subhram filed a suit for portion of his share in
the properties. Thus the situation became tense.
1. AIR 1999 S.C.1783.

2. 199 Cri. L.J. 2898 (S.C).
358 INDIAN PENAL CODE S, 300
On the fateful day i.e. 8th of August Subhram was going to his sister's house but he missed the bus.
The next bus was to go after two hours so he went to a nearby house and was taking rest there on a
cot. At about 12.30 noon his father Bhagirathi along with Hanuman and Kheta reached there.
Bhagirathi held a grip on the legs of his son while Hanuman and Kheta attacked on his neck with a
kulhari (a heavy sharp weapon). Hearing the cries of the victim the two lady inmates of the house
PW-4 Harbal and PW-6 Hirli where he was resting came out and saw the three accused slaughtering
the deceased. They ran away thereafter. These ladies also raised hue and cry and thereafter some
people from the neighbourhood also rushed to the scene. The trial court relied on the evidence of
PW-4 and PW-6 and convicted all the three accused under section 302 read with section 34 of the
I.P.C. But the High Court acquitted the respondent Bhagirathi by giving him benifit of doubt as he
did not cause any injury, but relying on the testimony of the two lady witnesses PW-4 and PW-6
confirmed the conviction of the other two co-accused. The Supreme Court held that the High Court
has failed to consider the implication of the evidence of the two eye-witnesses on the complicity of
Bhagirathi particularly when the High Court found their evidence reliable. Benefit of doubt was
given to Bhagirathi "as a matter of abundant caution" Unfortunetly the High Court did not point the
area where there was such a doubt. It was further pointed out that the opinion of the doctor that
injury could not have been caused by two strikes with the same weapon was not supported by cogent
reasons. In the opinion of the Court the possibility of two successive strikes with a sharp weapon
falling at the same situs resulting in such injury could not be ruled out. The Court entertained no
doubt that the prosecution has proved with reasonable certainty that Bhagirathi was holding the legs
of the deceased when his nephews cut his throat and after finishing the work all the three ran away.
There is no scope to entertain even a semblence of doubt that Bhagirathi would have shared the
common intention with the other two assailants. Acquilttal of Bhagirathi by High Court by giving
him benefit of doubt was not proper and he was liable to be convicted.
In State of Haryana v. Tek Singh,\there was some altercation between Tek Singh (A-l) and
Chet Singh brother of deceased Gurdev Singh. About 8 to 9 months prior to the occurence Tek Singh
was convicted for causing injuries to Mukhtiar Kaur, his sister-in-law. He was released on parole.
One day prior to the occurrence. On 14th September, 1988 at about 8.30 p.m. Tek Singh and Gurdev
Singh (Both deceased) were sitting on a cot outside the house of Tek Singh, eight accused persons
armed with weapons including gun, rifle and gandasa firing shots and shouting that Tek Singh and
Gurdev Singh should be finished arrived there from the side of Tek Singh's house. On seeing the
accused both the deceased rushed inside the house of Tek Singh, the accused chased them and
entered the house where Mrs. Bant Kaur wife of Tek Singh deceased was present. Three persons
Chet Singlv (PW-5), Bhola Singh (PW-7) and Mohinder Singh also reached at the scene of offence
after returning from their fields. The accused caused injuries to Tek Singh (deceased) by giving
gandasa blows. The witnesses stated that different accused persons gave gandasa blows on different
organs of the body, the details of which were given. Further Gurbachan Singh
1. 1999 Cri. L.J. 2577 (S.C).

(A-2) fired from his rifle hitting Gurdev Singh on his right thigh and other accused persons gave
gandasa blows. Thereafter all the accused left the place and at that time Tek Singh (A-l) and
Gurbachan Singh (A-2) fired from their gun and rifle in the air while leaving the spot. The witnesses
Chet Singh and Bhola Singh lodged a report at 11.30 p.m. All the eight accused persons were
charged and tried under sections 148, 149, and 302 read with section 149. IP. Code for committing
murder and all of them were convicted by the trial court. But in appeal the High Court acquitted 5
accused and confirmed the conviction of remaining three accused namely, Gurbachan Singh (A-2)
Baldev Singh (A-5) and Megha Singh (A-6) for the offence under section 302 read with section 34
IP. Code and their conviction under section 149 was also maintained. The Supreme Court dismissed
the special leave petition against the three convicted acused persons. F.I.R. lodged disclosed the
entire incident and names of accused and also the details of blows inflicted by each individual
seperately. It was held that where the entire incident was over within two to three minutes it would
be difficult for any witness to state exactly which accused inflicted how many blows on the
deceased. In these set of circumstances, if there is some exaggeration in the evidence of witnesses
those exaggerations are to be separated by taking into consideration over all facts in record. Further
with regard to the main part of the prosecution version that accused assaulted Gurdev Singh, the
prosecution evidence is fully corroborated by medical evidence. The medical evidence also
corroborates the version of the witnesses that on both the deceased apart from injury by fire arm
accused assaulted by gandasa. Similarly with regard to Tek Singh there were in all 9 injuries, 3 were
incise wounds and rest were multiple contusions and lacerated wounds. Therefore it cannot be said
that the evidence of prosecution witnesses is not corroborated by medical evidence. It was further
pointed out that some contradictions as to who assaulted whom with what weapon and whether it
was by sharp edge or blunt side of gandasa are bound to be there and particularly when blows are
given in quick succession, it would be against the ground reality to expect the witnesses to depose
exactly on which part of the body the blow landed. In these circumstances, even if there is some
exaggration with regard to the infliction of blows, it would hardly be a ground for rejecting their
testimony.
Further all the accused were arme'd with deadly weapons and came together. In such a
situation when the presence of the accused who were armed with deadly weapons is established
beyond doubt sections 148 and 149 would come into operation and they would be liable for the
offences. Accused Gurbachan Singh had stated that there was some dispute regarding land as Tek
Singh (deceased) was demanding share, therefore the deceased family was having grudge against
them and they were falsely involved in this case by Bant Kaur in consultation with Chet Singh. In
view of such statement it would be difficult to hold that there was no motive on the part of the
accused. In this view of the matter there was no warrant at all for the High Court to reverse the
judgment of the Sessions Court. Therefore, the acquittal was set aside and conviction and sentence
awarded by Sessions Court was restored.
In Rainchandra Obdar v. State of Bihar? there was some dispute between deceased Ram
Prasad and the appellant Ramchandra as regards partition of their joint property. PW-1 wife of
deceased had stated that while she and her husband
1. 1999 Cr. L.J. 1449 (S.C).

were returning from another village to their own village, the appellant, Fago Sao and Aghnu Sao
attacked Ram Prasad and killed him. Her evidence was also corroborated by the evidence of PW-8,
PW-3 and PW-5. PW-3 and PW-5 had stated that after the incident PW-1 wife of the deceased
informed them that the three accused had killed her husband. The Sessions Court convicted all the
three for offence under section 302 read with section 34. But the High Court acquitted the other two
accused. The High Court, on reappreciation of the evidence held that Pandu Mund PW-8 cannot be
believed as he had not given names of the three accused in his police statement. As regard PW-1 the
High Court held that as she had not given names of all the three accused to PW-8 Pandu Munda even
though accused Aghnu Sao and Fago Sao were known to her, it was doubtful if the other two
accused were involved in the commission of the offence. Considering her evidence on probabilities,
the High Court held that it was not likely that she remained at the place of incidence after her
husband was attacked by Ramchandra. The High Court did not rely upon her evidence as regards
presence and involvement of the other two accused. It was held by the Supreme Court that the
prosecution has failed to prove that the other two accused were also with the appellant and had
participated in the commission of the offence. In the absence of any reliable evidence whether any
one else was with the appellant and under what circumstances and by whom further blows were
given to deceased it cannot be said that the appellant had killed the deceased in furtherance of
common intention of himself and some others. Therefore it was not proper and legal to confirm the
conviction of the appellant under section 302 read with section 34 of IP. Code. It was further pointed
out that the medical evidence is silent about the nature of injury caused by the the appellant. The
appellant had given one blow with a sharp edged weapon on the neck of the deceased. Therefore
considering the nature of the weapon, the part of the<body on which blow was given and the size of
jnjury it can be said that the injury caused had endangered his life. Therefore the appellant can be
convicted for the offence punishable under section 326 IP. Code.
In State of Rajasthan v. Major Singh? on 3rd July, 1982 at about 8.30 p.m. Bakshish Singh
had gone to the mohalla of Harijans to find out labour. At that time, informant, his son Baljeet Singh
was taking bath at his residence and he heard the noise of 'marta', 'marta' coming from near the house
of Mai Singh. Hearing the said noise, his mother Basant Kaur and sister Jeet Kaur PW-1 who were
standing outside the house ran towards the scene of offence. After putting on clothes Baljeet Singh
also went and saw that in the lane near the house of Mai Singh, Mohan Singh (A-l), Darshan Singh
(A-3), Major Singh (A-5), Arma Singh (A-6), Balwant Singh (A-8), Ukar Singh (A-9) who were
having gandasa were assaulting his father Bakshish Singh (deceased) and his mother (deceased
Basant Kaur). Mithu Singh (A-4) armed with sword was also present. His sister was crying. Sadhu
Singh (A-2) who was armed with the gun and Gurdayal Singh (A-7) who was armed with gandasa
were also standing and telling that no one should be spared today when Baljeet Singh reached near
his father and mother, Sadhu Singh (A-2) fired from his gun but the fire did not hit him. At that time
also, accused were assaulting his mother and father who fell down on the earth. He also saw his
sister Jeet Kaur lying nearby in injured condition. Looking to him other accused chased to kill him
but he ran away and reached at the house provocation can be established as a defence, 1 (i) it must be
sufficient to deprive a reasonable man of his self-control, so that he might be considered as not being
at the moment "the master of his own understanding; (ii) the fatal blow must be clearly traced to the
passion arising from that provocation; and (iii) the mode of resentment must bear a reasonable
1. 1999 Cr. L.J. 1631 (S.C):

relationship to the provocation. A fourth condition has been added that "there must not have been
sufficient time between occurrence of the provocation and the killing for the accused's blood to cool
and for reason to resume its seat."2
Indian Law on provocation is contained in Exception I to section 300. Commenting upon

these provisions Mayne observes :
"It is intended to embody the general principles laid down by the English Judges that
provocation must be adequate, that the violence used must be in proportion to the provocation
and that the act causing death must be done while the want of self-control caused by
provocation continues."3
In order that provocation may be pleaded in partial defence to a charge of murder for
mitigation of the offence four things are necessary : (1) there must be provocation; (2) provocation
must be grave and sudden; (3) by reason of such grave and sudden provocation the offender must
have been deprived of the power of self-control; and (4) the death of the person who gave
provocation or of any other person, by mistake or accident, must have been caused.4
In order to avail of the protection it is necessary that there should be provocation. What is
provocation is determined in each case by the Court. Under Indian law provocation may be caused
by words and gestures, but under English Law no provocation of words will reduce the crime of
murder to that of man-slaughter.5 The only exception formerly known to English Law was the
confession of a wife that she had committed adultery.
In Mathappa Goitnda,6 the wife of the accused was on terms of criminal intimacy with one Y.
One day she was proceeding to Y's house with the object of continuing her criminal liason. The
accused tried to prevent her from going'to Y's house, but she retorted in a defiant way and
proceeded. The accused caught her and brutally cut her several times with a sharp weapon and she
died. It was held that the defiant tone of the wife's answer, though it might amount to provocation,
was neither sufficiently grave nor surprisingly sudden, and therefore the accused was liable for
murder. However, finding of a spouse in the actual act of adultery or having just completed
adulterous copulation have been held to be sufficient provocation. 7 In such cases both the man and
the woman committing adultery are held to give grave and sudden provocation so that causing the
death of either of them will be culpable homicide/
Provocation must be grave and sudden.—Provocation under this exception must bei>oth
grave and sudden.9 The test of grave and sudden provocation1" is (i)
1. Stephen, Digest of Criminal Law, Art. 265.
2. R. v. Hayward, (1833) 6 C. & P. 157.
3. Mayne, Criminal Law, pp. 489-90.
4. Kanhaiya Led, A.I.R. 1952 Bhopal 21.
5. Rethwell, 12 Cox C.C. 145.
6. A.I.R. 1954 Mad. 538.
7. Mangal, A.I.R. 1925 Nag. 37.
8. Amur Singh, A.I.R. 1956 M.B. 107.
9. Kanhaiyalal, A.I.R. 1952 Bhopal 21.
10. KM. Nanavati v. State or Maharashtra, A.I.R. 1962 S.C. 605.
S. 300 ]
INDIAN PENAL CODE, 1860 361
Whether a reasonable man, belonging, to the same class of society as the accused, placed in the
situation in which the accused was placed would be so provoked as to lose his self-control, (ii) In
certain circumstances words and gestures may also cause grave and sudden provocation, (iii) The
mental background created by the previous act of the victim may be taken into consideradon in
ascertaining whether the subsequent act caused grave and sudden provocation, for committing the
offence, (iv) The fatal blow should be clearly traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time, or otherwise giving room
and scope for premeditation and calculation.'
Provocation must be sudden. It is sudden when there was no time, for the passion to cool
down.2 If the act was done after the first excitement had passed away, and there was time to cool, it
is murder.3 Provocation is grave if it is sufficient to rouse a person's passions. It must be either
illegal or if legal then improper. The test of grave provocation is whether it would deprive a
reasonable man of his power of self-control. In a case A confessed (in the absence of X) to her
husband H at about 2 p.m. that she had illicit intimacy with X. Enraged at the conduct of X, the
husband went to a relation and borrowed his revolver and some cartridges on a false pretext, loaded
the same, went to the flat of X at about 4.30 p.m., entered his bed room and shot him dead. Here H
would not succeed in his plea of grave and sudden provocation because enough time has passed for
the passion to cool down and secondly, because he had gone to his relation ip search of a revolver
to shoot X.
In Sheikh Raft v. State of A.P. and another? incident occurred out of dispute over claim for
partition. Deceased picked up quarrel with mother in morning and with accused in the evening on
fateful day. Accused chased deceased and inflicted 19 knife injuries on deceased who was unarmed.
Injuries were caused in cruel and unusual manner. It was held that number of injuries caused though
relevant but are not determinative of nature of offence. Nineteen injuries caused in quick succession
cannot be as a result of grave and sudden provocation and therefore accused is liable to be
convicted for murder under Section 300 and not under Section 304, Part II, I.P.C.
In Rajendra Rai v. State of Bihar? there was some vacant land between the house of the
accused and the deceased and the dispute regarding the same was going on. The appellant on 12-10-
1991 at about 5.30 a.m in view of land dispute with deceased gave one blow to Krishna Nandan Rai
with 'Hasua' a sharp-edged weapon. When Bir Bahadur Rai, son of deceased
Krishnanandarr~Rai_came there running, hearing shouts of his mother, Nagendra Rai who was with
the appellant, caught him and made him bend down and the appellant gave him three or four blows
with 'Hasua' and severed his neck. The Sessions Court convicted and imposed death penalty upon
the appellant and awarded life imprisonment to Nagendra Rai. Ramji Rao (PW-9) who is an
independent witness deposed that while he was sitting near the door of his house on the date of
occurrence, he saw the appellant and Nagendra Rai going towards their house from their cattle-shed
in a great fury. The appellant Rajendra Rai was carrying Hasua at that time. It was held by the
Supreme Court that Bir Bahadur (deceased) came to be killed as he had gone to that place hearing
shouts of his mother. This does not appear to be a case where the murders of Krishnanandan and Bir
Bahadur were committed because of any premeditation and in a cold-blooded manner. It was also
pointed out that both the courts below have failed to consider the above referred facts and
circumstances and have erroneously proceeded on the basis that the accused committed the murders
in pursuance of a conspiracy, with premeditation and cold-blooded manner. There is no justification
1. Madhavan v. State of Kerala, 1966 Ker. L.T. 112.
2. Khairati Ram, A.I.R. 1953 Punj. 241.
3. Lochan, (1886) 8 All. 635.
4. 2007 III Cri. L.J. 2746 (S.C).
5. 1999 Cri. L.J. 1448 (S.C.)
for taking such a view. The evidence discloses that the act of Krishnanandan in tying his buffalo
and using the disputed land had infuriated the appellant and thus the incident had happened all of a
sudden. Considering the facts and circumstances of this case, the Supreme Court was of the view
S. 300 ]
that this case cannot be regarded as a rarest of rare case where the penalty of death would be
justified. The sentence was, therefore, reduced to life imprisonment.
In State of U.P. v. Lakhmi,1 the accused killed his wife. He saw something lascivious
between his wife and other person when he entered house from field. Giving the benefit of
Exception I of section 300, I.P.C. and holding the accused guilty under section 304, Part I, I.P.C.
the court observed :
"There can be little doubt that if the accused had witnessed any such scene, his mind would have
become suddenly deranged. It is not necessary that the husband should have been hot-tempered or
hyper sensitive to loose his equanimity by witnessing such scenes. Any ordinary man with normal
senses or even sangfroid would be outraged at such a scene." Offender deprived of his power of
self-control.—It must be shown distinctly that the act was done while the person doing it was
deprived of the power of self-control. It must have been done under immediate impulse of the
provocation.2 It must be of such a nature as deprives a reasonable man of his power of self-control.
The power of self-control should not have been lost as a result of anger or other emotion.3 The
provocation must be such as will upset not merely a hasty and hot-tempered or hyper-sensitive
person but one of ordinary sense and calmness.4 It must be shown not only that the act was done
under the influence of some feeling which took away from the person doing it all control over his
actions, but also that the 'feeling had an adequate cause.5 If it appears that the party, before any
provocation is given, intended to use a deadly weapon towards anyone who might assault him this
would show that a fatal blow given afterwards was not to be attributed to the provocation and the
liability would be for murder.6 However the mode of resentment must bear a reasonable relationship
to the provocation.7
R had teased As sister while she was in the field. Coming to know of it, A took a sword and went to R's residence. R, his mother and sister were present in the
house when A reached there abusing them. He said that he would forcibly take away R's sister. The women got frightened and R's mother took her daughter inside a room
and bolted the door. She then went forward with folded hands and requested A to pardon them. A immediately gave a blow on her neck with the sword in his hand and she
fell down dead. At this R started running towards the fields. A chased him abusing. When A was still about 20 feet from him, R jumped into a well to save himself. R's head
hit a hard substance in the well with the result that he lost consciousness and died of asphyxia due to drowning. In this case the act of teasing by R to A's sister was not of
such a nature whereby it can be said that A chopped off R's mother's head under grave and sudden provocation so as to reduce his liability from murder to culpable
homicide. Provocation even though sudden was not so grave as to deprive A of his power of self-control. So A will be liable for murder of R's mother. But so far as''the
question of R's death is concerned it was not the direct result of any act done by the accused i.e. there was no causal connection. A's chasing cannot be said to be the cause of
R's death, so he will neither be liable for murder nor for culpable homicide. But A will be liable for abetment u> commit suicide.
First Proviso.—This proviso requires that provocation must not have been sought by the
accused, instead provocation must come to him. In a case the accused was told one night that his
sister and her paramour were together in a house. He knew of their intimacy for a long time. On
1. AIR 1998 S.C. 1007.
2. Molad Nushyo, (1867) 7 W.R. (Cr.) 27.
3. Deoji Govindji, (1895) 20 Bom. 215.
4. Sohrab, (1924) 5 Lah. 67. ,
5. Huri Giree, (1868) 10 W.R. (Cr.) 26.
6. Thomas, (1837) 7 C. & P. 817.
7. Kundarapu, (1962) 1 Cri. LJ. 261.
getting the above information he broke into that house with an axe and killed both of them. He was
held liable for murder because the provocation was not sudden and it had also been sought by the
accused.1 Provocation is an externalstimulous which must be looked at as such. Grave and sudden
provocation does not arise merely by use of the defamatory words.2
Second proviso.—It is clear from second proviso that if the act is legal, any opposition to it
would be illegal.
Third Proviso.—Provocation is not given by anything done in the lawful exercise of the right
of private defence. For example, if a person forcibly seizes a thief and confines him till the arrival
of police, the thief here cannot complain of any inconvenience that he suffers.
Explanation.—According to this explanation whether the provocation given was grave and
sudden is a question of fact. That it is for the Court to see in each and every case whether the
provocation given was grave and sudden or not.
Cases.—In case of confession of adulterous intercourse grave and sudden provocation may
be pleaded in mitigation of punishment only when the woman concerned is the wife of the accused.
It cannot be claimed where a woman was only engaged to be married 3 or was only in love4 with the
accused.
In Janmluddin? it was pointed out that the defence of provocation may be claimed by
husband, son or brother when wife, mother or sister was caught in the act of having sexual
intercourse with a stranger provided they were living under the protection of the accused, but it
should not be extehded to first or second cousins and others killing a woman, especially when she
was not in the custody or protection of the accused.
In a case the accused and his wife's sister's husband S, were sleeping on the same cot in the
verandah, and the accused's wife 'W was sleeping in the adjoining room. Sometime in the night S
1. Imam Baksh, A.I.R. 1937 Lah. 560.

2: Gura Singh v. State of Rajaitlian, 1984 Cr. L.I. 1423.
3. Palmer, (1913) 2 K.B. 29.
A..Murgi Munna, (1938) 18 Pat. 101.
5. A.I.R. 1955 Mad. 1227. ?
S. 300 ]
got up, and went into the room and bolted the door behind him. The accused also got up and
peeping through a chink in the door saw S and W having sexual intercourse. The accused returned
to his cot and lay down on it/After sometime S came out of the room and lay down on the cot by the
side of the accused. After a short time, when S began dozing the accused stabbed him several times
with a knife and killed him. The evidence showed that the accused did not go anywhere to search
for the knife, which apparently was with him. The case was covered by Exception 1 to Section
S. 300 1 364
OF OFFENCES AFFECTING THE HUMAN BODY
300 notwithstanding the fact of time gap between the seeing of the act of adultery and the killing of
S. The accused having acted under grave and sudden provocation was guilty under Section 304.' A,
a wife, on returning home finds her husband B sleeping on the bed with the maid servant. She
brings out a revolver and kills both. She will get benefit of Exception 1 to Section 300.
This exception does not apply where death of adulterer is caused not in a fit of passion but
with subsequent deliberation. Where the accused suspecting infidelity in his wife, followed her with
a hatchet on one night when she stealthily left his house, and finding her talking to her paramour,
there and then killed her, he was held liable for murder because the accused had followed her on the
basis of his suspicion and such provocation was not sudden.2
In another case the accused finding a man intriguing with his wife, beat him and after taking
him to the bank of a river cut off his head. He was guilty of murder. 3 In the above two cases the acts
were not committed while the accused were deprived of the power of self-control, they were not the
offsprings of the-moment, but were the result of cool and mature consideration after the fresh
excitement had passed away.
'X' strikes 'A. 'A' is by this provocation excited to violent rage. 'Y', a bystander intending to
take advantage of A's rage and to- cause him kill 'X', gives a revolver into 'A's hand for that
purpose. 'A' kills 'X' with the revolver. A is liable for committing culpable homicide not amounting
to murder because he killed X under grave and sudden provocation. Y is also liable for abetting
culpable homicide.
Exception 2—Exceeding right of private defence.—In order that exception 2 may apply
the following conditions must be fulfilled :
(1) Act must be done is exercise of right of private defence of person , or property.
(2) Act must have been done in good faith.
(3) The person doing the act must have exceeded his right given to him by law and
have thereby caused death.
(4) Act must have been done without premeditation and without any intention of
causing more harm than was necessary in self-defence.
The law contained in this exception is based on the rule that in a case in which the law itself
empowers an individual to inflict any harm short of death, it ought hardly to visit him with the
highest punishment if he inflicts death.4
Cases.—In a case A found that B a feeble old woman was stealing his crop, A beat her so
violently that she died from the effect of the attack, it was held that A was guilty of murder and this
exception would not apply.5 In another case A pursued a thief B and killed him after the house
trespass had ceased, A was held guilty of murder.6
A head constable, failing to obtain a bribe from a gang of gypsies, arrested one of them whereupon the gang turned upon him in a menacing attitude armed with
sticks and stones. Before any actual violence was used by the crowd of advancing gypsies, the head constable fired his gun at the crowd when it was about five paces from
him and killed one of the gypsies. The constable was held guilty of culpable homicide on the ground that he had unlawfully arrested one of the gypsies, that he had no right
1. Balku, A.I.R. 1938 All. 789.

2. Mohan, (1886) 8 All. 622.
3. Yasin Sheik. (1869) 12 W.R. (Cr.) 68
4. Durawn Geer, (1866) W.R. (Cr.) 73.
5. Gokul Bowree, (1866) 5 W.R. (Cr.) 33.
6. Balakee Jalahed, (1868) 10 W.R. (Cr.) 9.
of private defence against them, and that their advance did not reasonably cause the apprehension of death or grievous hurt to himself.1
'A' thief enters 'B's house and opens his safe, 'B' raises an alarm and the thief bears a retreat.
While the thief is still in the house. 'B' fires at him and kills him. B would have been justified in
causing any harm other than death in the exercise of his right of private defence. He has exceeded
his right of private defence and will, therefore, be liable for culpable homicide not amounting to
murder.
In a case a thief was seen with half of his body and head through the wall of a house
occupied by women except the accused and his young idiot son and the accused suddenly caught up
a sort of pole-axe, and with it struck the thief five times on his neck and nearly cut off his head. It
was held that the accused inflicted more hurt than was necessary for defence and was guilty of
culpable homicide.2
The relations between 'A' and 'B' were strained. 'A' was going to pond to collect his utensils.
B gave a lathi blow to A as a result of which he died. B has in his defence taken the plea that he
struck the blow taking 'A' to be a thief. In this case even though B thought A to be a thief, he has
exceeded his right of private defeivce of property. In case of theft the right of private defence does
not extend to causing of death. Since B has exceeded his right of private defence he will be liable
for culpable homicide not amounting to murder.
365 [ S. 300
INDIAN PENAL CODE
In a case A attacks B with a stick. In order to defend himself, B takes out his pistol but before
he could fire a shot, A kills B by hitting his head with a heavy stone. In this case if A takes the plea
of self-defence, he will not succeed because he was himself an aggressor. A will therefore be liable
for committing murder of B. B has only taken out his pistol in self-defence as he was attacked by A
with a stick but B did not aim the pistol to A. A had hit B on his head with a heavy stone on a vital
part of his body. His act cannot be said to have been done in self defence and therefore A will be
guilty under Section 300 Indian Penal Code for committing murder of B.
In Bliagwan Swaroop v. State of Madhya Pradesh? the appellant was charged under Section
302 for murder of Man Singh and under Section 307 for attempting to murder Shahid. Mr. Ram
Swaroop, father of appellant was being given lathi blows by complainant party. Ram Swaroop
asked his son Bhagwan Swaroop to fire the gunshot with the licensed gun of his father. The High
Court found that there were two simple injuries caused by hard and blunt object and the other two
injuries could be caused by fall. In the opinion of the High Court these injuries on him could not
give rise to any apprehension of either grievous hurt or death. The Supreme Court disagreeing with
the High Court held that the gunshot was fired by Bhagwan Swaroop to save his father from further
blows because the shot was fired while Ram Swaroop was being given lathi blows by the
complainant. A lathi is capable of causing simple as well as fatal injury, whether in fact the injuries
actually caused were simple or grievous is of no consequence. In a situation like this the son could
reasonably apprehend danger to the life of his father and his firing a gunshot at the point of time in
defence of his father is justified. The accused was therefore, acquitted.
1 . Abdul Hakim v. Emperor, I.L.R. 3 All. 253. 2:
Fukeera Chamar, (1866) 6 W.R. (Cr.) 50. 3. 1992 Cri.
L.J. 777 (S.C).
In Bahadur Singh v. State of Punjab,1 there was some tenancy dispute. To conduct the
litigation both the parties had appointed their own attorneys. Jit Singh (A-l) was attorney of Dhan
Kaur while Pritam Singh the deceased was attorney of Suklidev Singh, the opposite party. The suit
was filed by the accused and others against Sukhdev Singh. All the seven accused were present on
the day of occurrence in the court in connection with the hearing of the case. P.W. 3 left the
deceased to attend the call of the case but the deceased along with P.W. 4 and P.W. 5 also left for
taking tea. PWs 3, 4 and 5 saw all the accused coming in a group. They gave a lalkara that the
deceased should not be left scot free. Jit Singh (A-I) and Bahadur Singh (A-5) were armed with
gandasa and others with takwas. A-l gave a gandasa blow on the head and A-5 gave a blow on the
right jaw of the deceased. Others also inflicted injuries. Sita Singh (A-2) inflicted injuries to PWs.
Accused A-l and A-5 were also examined for their injuries and the medical report indicated that
they had also suffered injuries. In the course of trial the accused pleaded that they were attacked by
the deceased party and in exercise of right of self-defence A-l, A-2 and A-5 inflicted injuries on the
deceased. The prosecution explained that these injuries were the result of brick bats which were
hurled by the deceased party when the accused dealt blows on the deceased. In the opinion of the
Court the accused had suffered injuries at the hands of the deceased party. It was held that having
gone through the medical evidence as well as the specific plea of the accused a reasonable doubt
arises regarding their right of self-defence and, therefore, they are to be given the benefit of right of
self-defence but they have exceeded their right. Therefore, exception II to Section 300 is attracted
and the offence committed by them would be punishable under Section 304, Part I.
In Ram Bilas Yadav v. State of Bihar? prosecution witnesses were alleged to cutting ridges of
field of appellants to allow flow of water. The dispute between both the parties was proposed to be
settled by reconciliation. Appellants on next day started repairing ridge and fight ensued between
both the parties. All the appellants were armed with gandasa, bhala, spade, kudali, etc. and inflicted
various cut injuries on one of the prosecution witnesses who died. There was no evidence to
indicate that prosecution witnesses were armed with weapons. Prosecution witness and deceased
sustained serious injuries and appellant sustained only some minor injuries. It was held that
appellants were aggressors and came to place of incident armed with deadly weapons. Deliberate
intention on part of appellants was clearly discernible. Under the circumstances appellant cannot
claim right of private defence as they came with premeditation and had caused more harm than was
necessary and therefore, appellants were not entitled to benefit of exception 2 to section 300, Indian
Penal Code so as to make the offence of murder as culpable homicide.
In Ram Avtar v. State of U.P.? some police constables were in search of an accused to arrest
him. The complainant party helped the constables and reached in baithak of a house where accused
were sitting. Accused party in order
1. 1992 Cri. L.J. 3709 (S.C).
2. 2002 Cri. L.J. 978 (S.C).
3. 2003 Cri. L.J. 480 (S.C).
to prevent arrest assaulted complainant party and constables. Constables withdrew soon after
receiving injuries but accused continued their assault on complainant party and two members were
S. 300 1 366
killed. Body of one person who was shot dead while running away was found outside the house in
question. It was held that the sequence of events shows that assault by accused continued even after
danger to life of accused had ceased. Therefore the accused exceeded right of private defence
because it is limited to the extent it could have been available against a private individual. It cannot
be for common intention to retaliate. Accused was held liable for the offence of murder.
Exception 3.—In order that this exception may apply the following conditions must be
fulfilled :
(1) Offence committed by a public servant, or by some other person acting in the aid
of such public servant, in the advancement of public justice.
(2) Public servant or such other person exceeds the powers given to him by law.
(3) Death is caused by doing an act which he in good faith believes to be lawful and
necessary for the discharge of his duty as such public servant.
(4) The act must have been done' without any ill-will towards the person whose
death is caused.
This exception shall not apply where the act of a public servant is illegal and unauthorised by
law or if he glaringly exceeds the powers entrusted to him by law. Where A, a police constable fired
at certain reapers under the orders of B, a Superintendent of Police and it was found that neither the
constable nor the officer believed it necessary for public security to disperse those reapers by firing
upon them, it was held that the constable was guilty of murder.' B, a suspected thief who had been
arrested by some police constables escaped from a running train. One of the constables pursued him
with a view to rearrest him and when he was not in a position to apprehend him, he fired at him, but
in that process he hit the fireman of the engine and killed him. Constable was entitled for the
protection of this exception.
In a case a constable verbally ordered two other police constables to arrest two bad characters
on a road and to fire if resisted. The accused challenged both of them and then fired as one of them
did not stop and in consequence killed one man. In this case the constable is not liable for murder
but for culpable homicide. He has exceeded the powers given to him by law to apprehend offenders.
He had power to arrest but only because one of the two suspects did not stop on being asked by him
to do so there was no justification to open fire. The constable will get the benefit of exception 3 to
section 300 and would be liable for committing culpable homicide not amounting to murder.
Exception 4.—Death caused in sudden fight.—For the application of this exception Ahe,
following conditions must be fulfilled :
(1) Death must be caused in a sudden fight.
(2) Sudden fight must be without any premeditation.
(3) It must occur in the heat of passion upon a sudden quarrel.
(4) The offender must not have taken undue advantage or must not
______have acted in a cruel or unusual manner.
1. Sublia Naik, (1898) 21 Mad. 249.
(5) It is immaterial as to which party offered the provocation or committed the first
assault.
(6) The fight must have been with the person killed.
By fight here means something more than a verbal quarrel.' A fight is a combat between two
or more persons whether with or without weapons. 2 Fight per se is not a palliating circumstance, it
must be sudden, nor pre-arranged nor premeditated.3 Therefore, the time gap between the quarrel
and the fight is very important. If there was sufficient intervening time for passion to subside and
for reason to interpose this exception shall not apply. 4 Mere exchange of hot words is not enough,
exchange of blows is necessary, but use of weapons is not necessary. The fight must be with the
person who is killed and not with another person.5 Undue advantage means unfair advantage.6
It was held in Ghapoo Yadav v. State of M.P.,1 that a fight is a combat between two or more
persons whether with or without weapons. It is not possible to enunciate any general rule as to what
shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or
not must necessarily depend upon the proved facts of each case. A fight is sai5 to be sudden and in a
heat of passion when there is no time for the passion to cool down. Further for application of
exception 4 to section 300 it is not sufficient to show that there was a sudden quarrel and there was
no premeditation. It must further be shown that the offender has not taken undue advantage or acted
in a cruel or unusual manner. Undue advantage means unfair advantage.8
Cases.—In Somiruddin v. Emperor? a feast was held at the house of one Fakir Mohammad
when a dispute arose in consequence of some of the parties objecting to dine with one Nusuriddee
on social grounds. The deceased was one of the objectors while the accused was one of
Nusuruddee's supporters. The two quarrelled and from words they came to blows in which both
parties used sticks. The deceased struck the accused on the head so severely that blood came out
from his wound whereupon the accused, while smarting from the blow and possibly apprehensive of
367 [ S. 300
INDIAN PENAL CODE
further violence snatched up a knife lying nearby and with it inflicted wounds on the deceased of
which he died. It was held that the accused was guilty of culpable homicide and his case was
covered by the exception.
In Gali Venkataiah v. State of A.P.,m Gali Krishnaiah, the deceased and the appellant Gali
Venkataiah are brothers. They had strained relations. Prior to the incident the appellant threatened
the deceased that he would kill him. One day at about 8.30 a.m. the appellant with an intention to
kill the deceased armed with a knife went to him, pulled him and stabbed on his left side of chest
and caused vital stab injury, besides causing another cut injury over middle of the left arm. The
knife pierced into the chest of deceased and he died on way to
1. Sunnumuduli, (1946) 25 Pat. 335.

2. Per Verma, J., in Mahanarain v Emperor, A.I.R. 1946 All. 19.
3. Rahimuddin, (1879) 5 Cal. 31.
4. Foster, 296.
5. Naravanan, A.I.R. 1956 S.C. 99.
6. Sarju Parasad, A.I.R. 1959 Pat. 66.
7. 2003 Cri. L.J. 1536 (S.C).
8. See also Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, 2003 Cri. L.J. 3723 (S.C).
-9. 24 W.R. (Cr.) 48.
10. 2008 I Cri. L.J. 690 (S.C).
S. 300 ] 368
INDIAN PENAL CODE, 1860
hospital. Incident started with exchange of hot words, then quarrel between the two and finally it
culminated into the accused inflicting knife blow on chest of deceased. It was held that death was
caused in a sudden fight between the two and the accused was entitled to the benefit of Exception 4
to Section 300, I.P.C. Therefore, accused was liable to be convicted under Section 304, Part I and
not under Section 300, I.P.C.
It was held in Suresh Kumar v. State of Himachal Pradesh? that for the application of
Exception 4 to Section 300, I.P.C. it is not sufficient to show that there was a sudden quarrel and
there was no premeditation. It must further be shown that the offender has not taken undue
advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the
provision means 'unfair advantage'. Where the offender takes undue advantage or has acted in a
cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or
the manner of attack by the assailant is out of all proportion, that circumstance must be taken into
consideration to decide whether undue advantage has been taken or not.
In Hawa Singh and Another v. State of Haryana,2 accused went to house of deceased armed
with deadly weapons. He wanted to teach him a lesson for getting accused convicted. Accused
opened attack on deceased and his family members resulting in death of deceased. It was held that
attack was premeditated and not out of sudden quarrel. Therefore exception 4 to Section 300 has no
application and accused was, therefore, held liable to be convicted for murder.
The distinction between exception I and II of Section 300 IP. Code was explained as follows
in Iqbal Singh v. State of Punjab?
Difference between Exception 1 and Exception 4 of Section 300.—In Naveen Chandra v.
State of Uttaranchal? incident was preceded by verbal altercation in the beginning. In the course of
conciliation by Panchayat accused got in fury and gave blow on vital parts of unarmed persons.
Consequently abdomen of two deceased persons were ripped open. It was held that here accused
acted brutally and benefit of Exception 4 to Section 300 I.P.C. was not available to the accused.
It was further observed that Exception 4 to Section 300 IPC covers acts done in sudden fight.
Exception 4 to Section 300 deals with cases of prosecution not covered by the first exception, after
which its place would have been more appropriate. The exception is founded on the same principle,
for in both there is absence of premeditation. But while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4 there is only that heat of passion which clouds
men's sober reason and urges them to deeds which they would not otherwise do. There is
provocation in Exception 1 but the injury done is not the direct consequence of that provocation. In
fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck or
some provocation given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both the parties puts them in respect of guilt upon equal
footing.
1. 2008 II Cr. L.J. 2247 (S.C).

2. (2009) 1 Cri. L.J. 1146 (S.C).
3. (2008) 4 Cri. L.J. 4679 (S.C).
4. 2007 Cri. L.J. 874 S.C.
The fourth exception of Section 300 I.P.C. covers acts done in sudden fight. The said
exception deals with a case of prosecution not covered by the first exception, after which its place
would have been more appropriate. The exception is founded upon the same principle, for in both
there is absence of premeditation. But while in the case of Exception I there is total deprivation of
self control in case of exception 4 there is only that heat of passion which clouds men's sober reason
and urges to deeds which they would not otherwise do. There is provocation in exception 4 as in
exception 1, but the injury done is not the direct consequence of that provocation. In fact Exception
4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation
given in the origin of the dispute or in whatever way the quarrel may have originated yet the
subsequent conduct of both parties puts them in respect of guilt upon equal footing. The expression
fight occurring in exception 4 is not defined in the IPC. But "sudden fight" implies provocation and
blows on each side. However the expression "undue advantage" means unfair advantage.
It was held in Vishal Singh v. State of Rajasthan,1 that exception 4 applies where murder is
committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
without the offender's having taken undue advantage or acted in a cruel or unusual manner. The
distinction between exceptions 1 and 4 is that there is provocation in exception 4 as in exception 1
but in case of former injury done is not direct consequence of that provocation.
It was also observed that though the expression fight is not defined in IP. Code it implies a
combat between two or more persons whether with or without weapons.
For application of exception 4 it is not sufficient to show that there was a sudden quarrel and
there was no premeditation, it must further be shown that offender has not taken undue advantage or
acted in cruel or unusual manner. The expression 'undue advantage' means 'unfair advantage'.
The difference between Exception 1 and Exception 4 of Section 300, I.P.C. is that though
both are based on the same principle as there is absence of premeditation in both. But while in case
of Exception 1 there is total deprivation of self control, in case of Exception 4 there is only that heat
of passion which clouds men's sober reasons and urges them to deeds which they would not
otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the
direct consequence of that provocation. In fact, Exception 4 deals with cases in which
notwithstanding that a blow may have been struck or some provocation given in the origin of
dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both
parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation
and blows on each side. The homicide committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the
Exception more appropriately applicable would be Exception 1 of Section 300 I.P.C.
A sudden fight implies mutual provocation and blows on each side. The homicide committed
is then clearly not traceable to unilateral provocation nor in such cases the whole blame can be
1. (2009) 2 Cri. L.J. 2243 (S.C).
placed on one side. For if it were so, the exception more appropriately applicable would be
Exception 1. A fight is a combat between two and more persons whether with or without weapons.
It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It
is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4 it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be shown that the offender has not
taken any undue advantage or acted in cruel or unusual manner. The expression undue advantage as
used here means unfair advantage.1
It was held in Bangaru Venkata Rao v. State of Andhra Pradesh,2 that sudden fight under
exception 4 to Section 300 implies mutual provocation and blows on each side. It is not possible to
enunciate any general rule as to what shall be deemed to be a sudden fight. In case of exception 4
there is that heat of passion which clouds men's sober reasons. In order to apply exception 4 to
Section 300 besides showing that there was sudden quarrel and there was no premeditation, it must
be shown that offender has not taken undue advantage where use of weapons or manner of attack by
assailant was found to be out of all proportion it is relevant to decide whether undue advantage, has
been taken.
It was further pointed out that the difference between Exception 1 and Exception 4 to Section
300 or is that in case of Exception 1 there is total deprivation of self control and in case if Exception
4 there is only that heat of passion which clouds men's sober reasons. There is provocation in
Exception 4 as in Exception 1 but injury done is not the direct consequence of that provocation.
In A. Maharaja v. State of Tamil Nadu? murder was committed in the course of a sudden
fight. Accused raised objection to cutting of trees by deceased. This lead to wordy dual between the
two. Thereupon the accused snatched the cutting instrument from hands of deceased. The accused
inflicted cut on the head and shoulders of deceased. It was held that the occurrence took place in
course of sudden quarrel. Therefore exception 4 to Section 300 was applied and conviction of
accused was altered to Section 304 Part I. It was observed that fight is a combat between two and
more persons whether with or without weapons. Whether quarrel is sudden or not depends upon
facts of each case. Exception 4 can be invoked if death is caused : (a) without premeditation; (b) in a
sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the person killed. Exception 4 is different from
Exception 1 to Section 300 IP. Code. In case of Exception 1 there is total deprivation of self-control,
in case of, Exception 4 there is only that heat of passion which clouds men's sober reasons.
It was held by the Supreme Court in Pulicheria Nagaraja v. State of Andhra Pradesh? that
the plea that whenever death is on account of a single blow, offence would be one under Section
304 and not under Section 302, is not tenable. In the instant case accused was convicted under
1. Naveen Chandra v. State of Uttaranchal, 2007 Cri. L.J. 874 (S.C).
2. (2008) 4 Cri. L.J. 4353 (S.C).
3. (2009) Cri. L.J. 315 (S.C).
S. 300 ] 370
Section 300 because accused was carrying a long dagger with a long handle a dangerous weapon
and stabbing was with great force causing injury on vital part of body. All this shows that the
intention of the appellant was to cause death or intention to cause bodily injury sufficient in
ordinary course of nature to cause death. Thus it was held that circumstances to bring the case under
exception 4 to Section 300 did not exist.
In Ramesh Krishna Madhusudan Nayar v. State of Maharashtra? the Supreme Court
explained the distinction between Exception 1 and Exception 4 of Section 300, IP. Code. The
Fourth Exception of Section 300, I.P.C. covers act done in sudden fight. It deals with a case not
covered by the first exception, after which its place would have been more appropriate. The
exception is founded upon the same principle, for in both there is absence of premeditation. But
while in the case of Exception 1 there is total deprivation of self control, in case of Exception 4,
there is only that heat of passion which clouds men's sober reasons and urges them to deeds which
they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury
done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or some provocation given in the origin of the
dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both
parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation
and blows on each side. The homicide committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be placed on one side.
In this case sudden fight or quarrel took place between accused and deceased. Accused
thereupon gave two blows by wooden log on head of deceased. Applying the above principle the
Supreme Court held that the accused under the circumstances was entitled to claim Exception 4 in
his defence and was convicted under Section 304, Part I and not for murder.
In Pappu v. State of Madhya Pradesh? only one lathi blow was given by the accused to
victim. Prior to giving blow accused not armed with any weapon. While the deceased was going to
take his meals the present appellant along with two others reached there and asked him as to who
had invited him. On this there was exchange of hot words and altercation took place. Suddenly
appellant Pappu dealt a lathi blow on the left side of the head of the deceased Mai Singh, the other
accused Munna also caused injury on his left shoulder and left hand. Because of lathi blow the
deceased fell down on the ground. At that moment three witnesses rushed to save the deceased. The
deceased became unconscious because of injuries. Thereafter accused persons tied away from there.
The Supreme Court held that the application of Section 300 cannot be ruled out, on the ground that
there was only one blow. It would depend upon weapon used, size of it in some cases, force with
which blow was given, part of body on which it was given and several such other factors.
1. 2006 Cri. L.J. 3899 (S.C).
2. 2008 I Cri. L.J. 1023 (S.C). See also D. Sailu v. State of Andhra Pradesh, 2008 I Cri. L.J. 686
(S.C); Rakesh v. State of M.P., 2008 II Cri. L.J. 1646.
3. 2006 Cr. L.J. 3640 (S.C).
It was also observed that for application of exception 4 to Section 300 it is not sufficient to
show that there was sudden quarrel and there was no pre-meditation. It must further be shown that
the offender has not taken undue advantage or acted in cruel or unusual manner. Expression 'undue
advantage' as used in this section means 'unfair advantage'.
In the instant case since there was no pre-meditation and accused neither took undue
advantage nor acted in cruel manner and only one lathi blow was given and prior to that accused
was not armed with any weapon, hence conviction of accused under Section 300 was altered to one
under Section 304 Part II.
In Kikar Singh v. State of Rajasthan,1 the appellant and the deceased Jeet Singh were
neighbouring owners^ of lands/There was an altercation between them due to the appellant
throwing soil into the lands of the deceased. The deceased went to the appellant to persuade him not
to throw soil into their field and to have the matter settled amicably through negotiations and if need
be by measuring the lands, yet the appellant was annoyed with the conduct of the deceaseds and his
sons. At the instigation of his son the appellant inflicted with Kassi (spade, sharp-edged cutting
instrument) on the head of the deceased and with its impact the deceased fell down. Thereafter the
appellant inflicted two more injuries on Jeet Singh and he died. It was argued that the appellant had
no intention to cause particular injuries but he committed the offence on spur of moment when
sudden quarrel ensued between the appellant and the deceased. It was held that the appellant will be
liable for murder and exception 4 to Section 300 will not be attracted because even though the fight
was sudden and without premeditation, the appellant has taken undue advantage of his being armed
with deadly weapon, whereas the deceased was unarmed. The accused acted in a cruel manner and
when he inflicted two more injuries on a fallen man it must be held that he intended to inflict those
two injuries though the first injury may be assumed to have been inflicted during the course of
altercation.
In Ghapoo Yadav v. State of M.P.,2 Lekhram (PW-2) and Gopal, deceased were sons of
Ramlal (PW-1). Accused Ghapoo Yadav, Janku, Kewal and Mangal Singh belonged to one family
and Sunder was nephew of Ghapoo. Deceased, the witnesses and accused persons belonged to the
same village and there was land dispute between them. On the request of PW-1 Ramlal the
measurement of land was done by Revenue Authority. It was found that the land belonging to
accused Mangal Singh was in possession of Ramlal (PW1) and there was a tree over the said land.
Though initially the tree was in possession of Ramlal, after measurement he parted with the
possession thereof. Said tree was cut by family members of Ramlal (PW-1) a day prior to the
incident for which deceased had altercations with the accused persons. On 9-6-1986 the date of
incident there were altercations between the accused persons and the deceased, his brother
1. 1993 Cri. L.J. 3255 (S.C).

2. 2003 Cri. L.J. 1536 (S.C).
S. 300 ] 372
Lekhram and father Ramlal. Accused Janku enquired from the deceased as to why they were cutting
the tree. Lekhram replied that it was cut three days prior to the incident as the tree belonged to them
and was planted by their family members. Deceased claimed that he had not cut the tree. This led to
altercations and scuffles amongst them. The accused persons assaulted deceased which resulted in
fracture of his leg. When Ramlal and Lekhram went to save him the accused persons ran towards
them threateningly. Ramlal and Lekhram fled away from that place and later on returned with some
other villagers. Then they took away the deceased on a cot to police station wherefrom he was sent
for treatment and was examined by doctor (PW-3). On examination seven injuries were found on
his body. His dying declaration was also recorded. Later the victim died at 2.00 a.m. on 10-6-1986.
Information of death was sent by the doctor to police station. Initially case was registered under
section 307, Indian Penal Code but after death it was converted into section 302, Indian Penal Code.
Post-mortem of dead body was conducted and after completion of investigation a charge-sheet was
filed under sections 147, 148 and 302 read with section 149. They were found guilty by trial court
and the conviction was held in appeal by the High Court. Hence an appeal was preferred to the
Supreme Court.
It was held that in this case out of seven injuries, only one was of grievous nature or was
sufficient in the ordinary course of nature to cause death of the deceased. The infliction of injuries
or their nature proved the intention of accused-appellants, but causing of such injuries cannot be
termed to be either in a cruel or unusual manner for not availing the benefit of exception 4 to
section 300, Indian Penal Code. Alter injuries were inflicted the deceased had fallen down and
thereafter no injury was inflicted. This shows that the accused have not taken undue advantage or
acted in cruel manner as no injury was inflicted when he was in a helpless condition after having
fallen down. The assaults were made at randoirtr-Even previous altercations were verbal and not
physical. It was not the case of prosecution that the accused appellants had come prepared and
armed for attacking the deceased. The previous dispute over land did not appear to have assumed
characteristics of physical combat. This shows that in the heat of passion upon a sudden quarrel
followed by fight the accused persons had caused injuries on the deceased, but had not acted in
cruel or unusual manner. That being so exception 4 to section 300, Indian Penal Code is clearly
applicable
In Dhirajbhai Gorakhbhai Nayak v. State of Gujarat? Dahiben (PW-1) and the deceased
were staying in Surat city with her two sons Dhanesh PW-3 and Narendra. About 10 days prior to
the date of occurrence accused-appellant had taken his small daughter to the in-laws house and left
her there. On his return the deceased scolded him for leaving a small child at a distant place. On this
there was heated altercation leading to fight between the two and the accused was very angry for
interfering in his personal matters. Subsequently on the date of occurrence at about 1.30 p.m. when
the deceased was sitting at a temple accused appellant challenged him that if he wanted to fight he
was ready for the same. This resulted in exchange of words and a fight. A resident of the locality
and PW-1 separated them. In the evening N (PW-8) a friend of deceased came to his house and told
Dahiben that since the quarrel was going on in the house, he would take the deceased for seeing a
movie. PW-1 agreed and both PW-8 and deceased went to sec a movie late in the night. When they
returned at about midnight PW-8 and deceased slept on the verandah of the house while PW-1 and
1. 2003 .Cri. L.J. 3723 (S.C).

PW-3 slept inside the house. At about 4 a.m. in the morning on hearing shouts for help PW-1
opened the door and both PW-1 and PW-3 saw the deceased in bleeding condition. They saw the
accused appellant giving blows on the deceased. Calling the name of the accused PW-1 asked as to
why was he doing this and if there was any problem it could be sorted out in the morning.
Thereafter accused appellant ran away. Many of the neighbours also came and the deceased was
taken to the hospital where he died at about 4.45 a.m. FIR was lodged at the police station at 5.15
a.m.
- The evidence of the two eyewitnesses wife and son of deceased was analysed minutely by trial
court and High Court and it was found to be credible. There was no discrepancy between medical
and ocular evidence. The Court found that the conduct of one of the prosecution witnesses who
alleged illicit relationship between wife of deceased and other prosecution witness was unusual and
abnormal.
It was further held that exception 4 to section 300, Indian Penal Code deals with cases in
which notwithstanding that a blow may have been struck or some provocation given in the origin of
dispute yet the subsequent conduct of both the parties puts them in respect of guilt upon equal
footing. A sudden fight implies mutual provocation and blows on each side. The homicide
373 f S. 300
INDIAN PENAL CODE
committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole
blame be placed on one side.
Viewed in this light exception 4 to section 300 is not applicable in the present case and the
conviction of accused for murder cannot be interfered with.1
In Sikander v. State (Delhi Admin),2 Ghulam Mohammad (PW-1) had two wives, namely, Firdaus and Zohara Bi Noor Zahan. His first wife was residing at
Seelampur along with her three children Mehboob, Ghulam Hassan and Shabana and her other three children Sikandar, Maqbool and Shamim were residing with him at
Turkman Gate where his second wife Zohra Bi Noor Zahan was also residing along with her six children including one daughter Gulzar Bano (deceased). He.was also
having a house at Bombay where his first wife was residing before shifting to Seelampur Delhi. There was dispute between Ghulam Mohammad on the one hand and his
wife Firdaus and her children on the other hand with regard to the house of Bombay. The appellant/accused and his brother were insisting for the* transfer of house at
Bombay in the name of his first wife Firdaus. For transfering the said house he had gone to Tis Hazari Court on 17-10-1988 but on the advice of the counsel it was postponed
for the next day. At about 6 p.m. when he was sleeping in the house, he woke up on hearing the noise of a quarrel and saw Shamim daughter of Firdaus abusing Zohra Bi. He
slapped Shamim and asked her to desist from abusing Zohara Bi. After this the appellant and-Maqbool came into the house, Maqbool went inside the room along with
Shamim and then came out with a dagger. Maqbool abused him and stabbed on his left eye, he fell down. At that time Zohara Bi protested as to why he was beating his
handicapped.father. At that time appellant snatched away dagger from Maqbool and started stabbing Zohara Bi repeatedly. When her daughter
Gulzaar intervened Maqbool stated that she was the root of all troubles so the appellant started
stabbing Gulzar at her abdomen, neck and other parts of her body. When persons collected outside
appellant ran away and Zohara Bi and Gulzar died on the spot. Sikander, the appellant was
convicted by the Sessions Court under section 302, Indian Penal Code while Maqbool was
convicted under sections 307 and 324, I.P.C. The post-mortem report indicated that there were
sixteen incised wounds on the dead body of Zohara Bi and eleven incised wound on Gulzar. It was
held that there was no sudden fight between the accused and deceased Zohara Bi or her daughter
Gulzar (deceased). Accused Maqbool was inflicting injuries on his handicapped father. Zohara Bi
only protested as to why was he beating her husband. This does not indicate any fight between the
appellant and the deceased. On the face of it, it is apparent that accused acted in a most cruel
manner by inflicting a number of dagger blows on a helpless step-mother and young sister. Hence
1. Ibid.
2. 1999 Cri. L.J. 2098.(S.C).
even assuming that there was no premeditation and the act was done in the heat of passion because
of sudden quarrel between PW-1 on one side and Maqbool and appellant on the other side and that
appellant used dagger which was brought out by his brother Maqbool for inflicting injuries yet main
requirements viz., if) it was a sudden fight and (ii) accused have not taken undue advantage or acted
in a cruel or-ounusual manner of Exception 4 of section 300, I.P.C. are not satisfied. It was further
held that the contention that the accused and PW-1 his father have reconciled and are living together
or that the accused is the sole earning member of the family would be totally irrelevant on the
question of conviction and sentence. The appeal was thus dismissed.
'M' had constructed a house in the Phirni (outer circuitous road) of village Khurd. He had
installed a water pump near his house. R and his father S who belonged to village Kalan had
purchased agricultural land adjacent to the Phirni of village Khurd. 'A' the wife of 'M' was one day
cleaning the utensils at the water pump and M was washing his hands and face. R started digging
earth from the Phirni and started throwing it towards the water pump. M asked him not to do so but
he did not desist and in the meantime S the father of R arrived there with a 'Kansi'. There ensued an
altercation between S and M whereupon S exhorted R to attack M. R gave one blow with sharp-
edged of 'Kansi' on the head of M. M was injured and was admitted to the hospital, where he died
after six days. In this case R had started digging earth and throwing it towards M's water pump
which was objected to by M and in consequence some altercation ensued between S and M. Thus
the death was caused by R without any premeditation but in consequence of an altercation. R will
therefore be guilty of committing culpable homicide and not for murder as he will get the benefit of
Exception 4 to section 300. S has exhorted R.'to attack M, therefore S will be liable for abeting the
offence of culpable homicide not amounting to murder.
In Ram Prakash Singh v. State of Bihar,1 the accused Ram Prakash Singh and deceased
Ramswarth Singh were friends. As a result of some misunderstanding between them their, relation
had become strained. The deceased used to tell others that Ram;Prakash owed some money to him
and was not paying the same. On the day of incident the accused met the deceased and enquired as
to why he is unneccessarily maligning him. That led to a hot exchange of words between them.
During this altercation Ram Prakash Singh took out a knife and gave one blow lo the deceased. The
medical evidence did not state that injury was sufficient in the ordinary course of nature to cause
death. It was held that the injury was caused in sudden quarrel and the accused is liable to be
I. AIR 1998 S.C. 1190.
convicted under section 304, Part II, and not under section 302 of Indian Penal Code.
In Bagdi Ram v. State of Madhya Pradesh,1 Bagdi Ram and Mangilal were neighbours. On
the date of incident the appellant was getting a wall constructed which was objected to by Mangilal
S. 300 ] 374
on the ground that the construction of wall would obstruct passage to his house. An altercation
followed in which the appellant and his sons allegedly abused Mangilal which was objected by
Mangilal. Thereafter the appellant and his three sons started assaulting Mangilal causing injuries on
his back and head. Ramesh, son of Mangilal, intervened but he was also assaulted. All members of
prosecution party who came there subsequently were unarmed and no threat was posed. Members
of accused party adopted an aggressive posture and assaulted members of prosecution party. When
deceased Jagdish came to- rescue his father accused assaulted deceased with pick axe on his head
causing serious injury. It was held that the accused cannot be allowed to plead right of private
defence. However, since only one injury was caused and blow was not repeated and thus there was
no intention to cause death. The accused was thus given benefit of sudden quarrel under Exception
4 to Section 300 and was convicted under Section 304 Part I of Indian Penal Code as blow was
given in heat of passion. That being so the sentence was reduced from 8 years to three years'
rigorous imprisonment.
In Sachchey Lai Tiwari v. State of Uttar Pradesh,2 the complainant Achhaiber Misra (Pw-1)
and both the accused are residents of same village; The agricultural lands of the two also adjoin
each other. The ground level of the field of complainant is slightly higher than those of accused. On
3-11-1995 at about 6.45 a.m. the appellant and party weje dismantling the demarcating line (mend)
between the fields of complainant and the accused. The complainant Achhaiber Misra saw it and he
alongwith his sons Vijay Misra and Surendra Misra reached near the field and asked the accused not
to dismantle the demarcating line of Ihc field. There was exchange of hot words between the two
sides. One Pintoo took out a pistol and handed i t over to the accused Sachchey Lai Tiwari and
thereafter Pintoo and Bachchey Lai exhorted by saying that the complainant side should be killed.
On it Sachchey Lai Tiwari fired with the pistol at deceased Vijay Misra and Surendra Misra, as a
result of which both sustained firearm injuries and died on the spot. The occurrence was witnessed
by Prem Nath Misra, Ramakant Misra (Pw-2) and other villagers and thereafter the assailants ran
away from scene leaving behind dead bodies. It was pleaded before the Supreme Court thai even if
prosecution case is accepted in toto, it only shows that the occurrence took place in course of a
sudden quarrel and therefore Section 302 of I.P.C. has no application.
It was held that to bring a case within exception 4 to Section 300 the fight though not defined
but it takes two to make a fight. Heat of passion requires that there must be no time for the passion
to cool down and in this case, the parties have worked themselves into a fury on account of the
verbal altercation in the beginning. A fight is a combat between two or more persons whether with
or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be
a sudden quarrel. It is a question of fact and it depends upon proved facts of each case. For the
1. 2004 Cri. L.J. 632 (S.C).
2. 2004 Cri. L.J. 4660 (S.C).
application of exception 4 to section 300 of I.P.C. it is not sufficient that there was a sudden quarrel
and there was no premeditation. It must further be shown that the offender has not taken undue
advantage or acted in a cruel or unusual manner. The expression undue advantage means 'unfair
advantage'. In the instant case the exception 4 to Section 300 would not be applicable to the facts of
the case.
In Kulesh Mondal v. State of West Bengal? on 13-2-1994 one girl named Bharati Mondal
was returning her home carrying a bundle of "khasi" on her head which struck on the body of
appellant Kulesh Mondal. On this the appellant Kulesh and his brother, Naresh Mondal, accused
(acquitted by High Court) hurled filthy languages at Bharati. Shocked by the behaviour of accused
persons, the informant Naresh Mondal raised strong protest. Thereafter bickering started between
them and it was followed by hurling of brickbats at the informant. While all this was going on one
passer-by, Chakku Mondal enquired about what had been going on. Finding him there the accused,
Naresh Mondal dragged him to place of occurrence and his brother appellant Kulesh Mondal
delivered a fatal blow with Hasua on the neck of deceased (passer-by) who died on way to the
hospital.
It was held that the act in question was committed without premeditation, in heat of passion,
upon sudden quarrel and accused have not taken undue advantage, nor acted in cruel manner, hence
Exception 4 of Section 300 was applicable and the accused was held liable under Section 304, Part I
and not for murder. It was also pointed out that "undue advantage" used in Section 300, Exception 4
means "unfair advantage".
In Sandhya Jadhav v. State of Maharashtra? the Supreme Court held that exception 1 and 4
to Section 300 are founded on the same principle viz. absence of premeditation but there is
substantial difference between the two. In exception I homicide committed is traceable to total
deprivation of self control, in exception 4 homicide committed is not traceable to unilateral
provocation. Exception 1 applies when accused loses his self control due to grave and sudden
provocation given by the other party, in exception IV sudden fight takes place between the two
375 f S. 300
INDIAN PENAL CODE
parties because of altercations between the two but the accused must not take undue advantage of
his position. Here undue advantage means unfair advantage.
Exception 5.—Death caused with the consent of the person.—For the application of this
exception the following conditions must be fulfilled :
(1) Person whose death is caused must have consented to the causing of his death or
the taking of the risk of death.
(2) The person consenting must be above the age of 18 years. The consent
contemplated by this exception must be unconditional without any
reservation and must be unequivocal that is, there must be no choice of alternatives to which the
person taking the life more or less has driven the person.3
Cases.—In Dashrath Paswan v. State of Bihar? the appellant was a student of'class X. He failed in the annual examination for three successive years. His wife
aged 19 years was a literate woman. He was very much upset by his last failure and left his village and came back after a week. On return he told his wife that he has decided
to end his life. His wife told him in reply that he should first kill her and
1. 2008 I Cri. L.J. 325 (S.C).

2. 2006 Cri. L.J. 2111 (S.C).
3. In re, Ambalath.il Assaenar, A.I.R. 1956 Mad. 97; (1955) 2 M.L.J. 383.
4. A.I.R. 1958 Pat. 190.
S. 300 ] 376
then kill himself. About an hour later, his wife spread a mat on the floor in one of the rooms in the
house and lay down quietly. The appellant first struck her with a Bhana causing a minor injury on
her chest and then took up a sharp weapon and gave her three violent blows on the neck, killing her
on the spot. Thereafter, he ran out of the house with his blood-stained clothes in order to end his
own life. One of the witnesses chased the appellant and brought him under arrest to his house. On a
charge for murder it was held that the deceased was above the age of 18 years and had suffered
death with her consent. It could not be reasonably said that she gave her consent under fear of
injury or under misconception of fact, therefore, the case was covered by this exception and the
accused was liable for culpable homicide not amounting to murder.
A being repeatedly requested by his wife B who was overwhelmed with grief at the death of
her child to kill her, kills her one night while she was asleep. Here A would be liable for culpable
homicide not amounting to murder and not for murder because death was caused with the consent
of his wife.
In Ambalathil Assaenar In re? X was in desperate poverty and tried to persuade his wife to
go to her mother's house. She refused and said that if X insisted it was better that she was killed.
After asking her two to three times if she did not want to live X cut her with a pen knife and killed
her. In this case X will be liable for committing murder of his wife and he will not get the benefit of
exception 5 to Section 300 Indian Penal Code because the consent given by his wife to kill her was
not free consent. Consent of wife to kill her was wrongfully obtained by coercing her. She has not
voluntarily given her consent. She was being repeatedly coerced by her husband to go to her
mother's house and therefore she asked her husband to kill her rather insist on her to go. This cannot
be said to be her free consent.
Consent under this exception must be free consent and not a consent obtained or given under
misconception of facts. For example in Poonai Fattemah v. Emperor? the accused who was a snake
charmer professed that he was able to cure from snake-bites and by so professing persuaded one of
his audience to consent to be bitten by a snake on the belief that he would be able to cure him. The
deceased was bitten by a snake and died. It was held that the case did not fall under this exception
because the consent given by the deceased was founded on misconception of fact based on
misrepresentation made by the accused and the accused knew that the consent was given in
consequence of such misconception. Therefore, the accused was guilty of murder.
A, a snake charmer repeatedly asserts in his performance that he is immune from all kinds of
snake poison. He reveals the fangs of his own snakes to the audience and gets himself bitten by
them several times. One of the spectators produces a snake and challenges the performer to repeat
his performance by being bitten by the new snake. The snake charmer repeats the performance by
being bitten by the new snake. As a result of the snake bite the snake charmer dies. The spectator
will be liable for culpable homicide not amounting to murder and is entitled to claim the benefit of
exception 5 to section 300. The snake charmer by his repeated assertions has himself consented to
the causing of injury which resulted in his death.
Benefit of Doubt.—In Sharad Birdhi Chand Sarda v. State of Maharashtra? the appellant
accused and the deceased were a newly married couple. Nearly four months after the marriage, the
deceased was found dead in her bed. The medical evidence showed that the cause of death was
1. A.I.R. 1956 Mad. 97.
2. (1869) 12 W.R. (Cr.) 7.
3. 1984 Cri. L.J. 1738 (S.C).
unnatural. It was held by the Supreme Court that the prosecution had failed to make out the case
beyond reasonable doubt as to murder by the accused, therefore, the accused is entitled to benefit of
doubt. He was set at liberty.
In Mahantappa v. State of Karnataka,1 it was alleged that seventeen persons having formed
an unlawful assembly assaulted deceased with sword and thereafter threw her dead body in a hut
and set it on fire. The evidence of eye-witnesses was corroborated by objective finding of
investigating officer and medical evidence. They were acquitted by the trial court but in appeal the
377
[ S. 300
High Court acquitted three accused and convicted eleven of them under sections 148, 302, 307,
449, 436, and 201 all read with section 149, I.P.C. While three of them died during pendency of
appeal and hence the appeal against them abated. It was held by the Supreme Court ;hat the
participation of five accused persons A-l, A-2, A-4, A-5 and A-8 and their active roles in incident
was established by two or more eye-witnesses, hence their conviction was proper. However
conviction of two accused persons A-6 and A-7 solely based on identification by one witness only
was set aside. It was further held :hat there was no evidence to establish that the remaining accused
persons A-10 and A-l 3 were members of unlawful assembly, their presence at place of occurrence
as snlookers cannot be ruled out, hence they were given benefit of doubt. It was further ruled that
A-12 was not named in the F.I.R, hence he is also entitled to benefit of reasonable doubt.
In Kalpana Mazumdar v. State of Orissa,2 the F.I.R. was lodged by Chitranjan Mohanty
(PW-7). He reported that four appellants and Sumanchal Padhi had kidnapped his nephew on 30th
April, 1997 and subsequently killed him. It was stated that on 1st May, 1997 in the early morning
while PW-7 had gone out to attend the call of nature he saw that a person was bringing something
on his shoulders and he came towards the pond. That person was accused No. 3. PW-7 caught him
and raised an alarm. People gathered there, some of them who gathered were named in the FIR.
They found that A-3 was carrying the dead body of the deceased and on being asked he said that he
has not murdered the child alone but some other persons were also involved in the murder and he
can identify them. He took all the persons to the house of accused No. 2 (A-2) who finding A-3 and
others -threatened to assault everyone and his servants also came with lathi and tangi. At that time
they came "back but alongwith some other villagers they again went to the house of A-2 and then
found that there was none in the house. In the prayer room of the house they found the nails of the
dead child lying with the blood as also the hair of the child. A-3 told them that in that room the nail,
hair and tongue of the child were cut and Sumanchal Padhi offered prayers, whereafter they took
the child alive in the jeep of A-2 to the house of Accused No. 1 (A-l) where the child was murdered
by holding his leg and hand and throttling his neck. Sumanchal Padhi, A-l and A-2 told A-3 that
they will pay Rs. 25,000/- to throw the boy. When he was throwing the boy in the pond PW-7
caught him red handed. After hearing this all of them went to the house of A-l. There Sumanchal
Padhi 'The Tantrik' said that he had killed the boy and he can give life to him. Padhi offered prayers
near the dead body for three hours and told everybody to wait but he failed to give life to the boy
and ran away from the house but was caught with his associates and handed over to the police.
Harichand Sahu (PW-14) who was an employee of A-l was an eye witness of the entire episode. He
deposed that the day of incident when PW-14 was called by A-l at about 7 p.m. at his house, A-3
brought a child covered with cloth. Then A-l, A-2, A-3, A-4, PW-14 and the Tantrik all went in the
jeep of A-2 to his house. PW-14 stayed in one room and all others stayed in another room. At about
midnight they all went in a jeep to the place where a ditch was dug and there PW-14 was given a
torch with instructions to keep a watch. He further deposed that A-4 Kalpana Mazumdar caught the
leg of boy, A-l pressed his belly, A-2 caught the chest and Tantrik was doing mantra path and A-3
1. 1999 Cri. L.J. 450 (S.C).
2. 2002 Cri. L.J. 3756 (S.C).
caught the neck of the child and the child died. They all returned in jeep from the place where the
child was sacrificed to appease the deities. He did all this on account of fear. He did not narrate the
incident to anyone for 19 days even though he was away to his village.
It was held that if the sole testimony of PW-14 which was not corroborated is not relied
upon, there would be no evidence to connect the appellant except A-3 with the commission of the
offence. Under these circumstances A-l, A-2 and A-4 were entitled to the benefit of doubt.
However the position of A-3 is different. A-3 was caught red handed while throwing the dead body
of the deceased by the side of a tank. There is evidence of PW-7 against him. The testimony of PW-
1, PW-2, PW-3 and PW-6 is also to the effect that A-3 was caught red handed while throwing the
body of deceased. A-3 has made extra-judicial confession before prosecution witnesses which was
recorded in the F.I.R., he was caught red handed and there was no explanation as to how the dead
body came in his possession. All these circumstances go against A-3 and therefore a presumption
against accused A-3 for having committed murder can be drawn and he has rightly been convicted.
Since other accused have been given benefit of doubt, the death penalty awarded to A-3 deserves to
be converted into imprisonment for life.1
In Khima Vikamshi v. State of Gujarat,2 on 11th November, 1982 the deceased Samant
Naran along with his daughter-in-law (PW-4) was going to consult doctor. On account of some old
enmity the appellants alongwith another minor accused forming an unlawful assembly waylaid and
attacked the deceased with axe and sticks consequent to which Samant Naran suffered multiple
bleeding injuries and fell down. The efforts of daughter-in-law, (PW-4) to save deceased went in
vain. After the attack all the accused persons ran away from the place of incident. Hearing the
shouts of PW-4, brother of deceased (PW-5) who happened to pass that way came at the place of
incident and managed a bullock-cart in which Samant Naran was brought to his village. At that time
wife, son and other members of family were present. The injured was then taken for treatment to
another village and his another brother (PW-3) also accompanied him. The doctor of that village
S. 300 ] 378
advised the injured to be taken for treatment at Jamnagar. The injured along with the said doctor
and PWs-3, 4 and 5 were taken in a tempo to Jamnagar but the injured died in the way.
It was found that the eye witness daughter-in-law (PW-4) is a pardanashin lady and her
accompanying the deceased alone at the time of incident itself is a doubtful circumstance. She
stated that she saw the accused persons for the first time when they started assaulting the deceased.
It is highly unnatural because from the Topography of the place of incident, it is clear that the area
in question was a flat land with visibility to a considerably long distance. Further no blood stains on
person and clothes of witnesses were found in spite of their holding body of deceased. There was
absence of blood stained earth at the place of incident. Complaint was not filed at the police outpost
of the village. It was held that these omissions and discrepancies are sufficient to create a
reasonable doubt as to the genuineness of the prosecution case, hence accused persons were entitled
to benefit
1. Kalpana Mazumdar v. State of Orissa, 2002 Cri. L.J. 3756 (S.C).
2. 2003 Cri. L.J. 2025 (S.C).
[ S. 300
379
of doubt and they were acquitted.

In State of M.P. v. Badri Yadav' co-accused was acquitted by giving benefit of doubt because
his name did not figure in the F.I.R. It was held that the same yardstick cannot be applied to
respondent who was named in F.I.R. as one of the assailants and he was also identified by
prosecution witnesses.
Absence of Evidence.—In absence of the evidence the accused cannot be held guilty of the
offence of murder. Where it is alleged that the accused had committed murder of his wife and it is
found that the relations between the two were good but there was no evidence of murder and in
absence of direct evidence the prosecution was relying on the circumstantial evidence the court held
that he cannot be held guilty of murder. It was observed that in a murder case motive plays an
important role but the law is not that in absence of proof of motive other circumstances, howsoever,
clear and clinching can, under no circumstances, bring him the guilt to the accused. After all motive
is something which is looked up in the heart of the culprit and sometime it would not be possible to
have any trace of it. The circumstantial evidence must unerringly point to the guilt of the accused
and that they must be consistent with the guilt of the accused and inconsistent with his innocence.
What is important is the cumulative effect of all the circumstances. It cannot, however, be said that
since no motive is established the chain is broken and prosecution must fail.2
Where it is alleged that the accused had committed suicide and it was by hanging, but
medical evidence showed grievous hurt in her stomach and kidney and it was not possible for her to
hang herself and the conduct of her father-in-law and mother-in-law indicates their active
involvement the accused were held guilty of murder.3
It was held in Main Pal v. State of Haryana,4 that merely because evidence of father of
deceased shows that he acted in an unnatural manner as he left spot seeing his son being attacked
and did not return for a long period is per se not a determinative factor to throw out otherwise
cogent prosecution evidence. Every person cannot act or react in a particular or very same way. It
was made clear that on the spot his reaction in a particular way has to be viewed in the totality of
mental set up of person concerned and the extent and nature of fear generated. Further the evidence
of eyewitnesses which is truthful and credible cannot be rejected on the ground of their being
relatives. It was further held that evidence of doctor is not meant • for implicit acceptance rather it is
liable to be sifted, analysed and tested in like manner as that of other witnesses.
In Dr. V.K. Saxena v. State of U.P? Dr. Saxena was alleged to have committed murder of his
wife but his contention was that she had committed suicide by hanging herself. On investigation it
was found that at the time of alleged suicide, the husband of the deceased and her two years' old son
were present in the house and no rope was found at the place of suicide. It was also found that the
accused had purchased a box, packed into the box dead body of his wife and threw the box from
a .running train on bridge that the box may fell into the river. On these facts the Supreme Court held
that there is no doubt that the accused had committed murder of his wife and he is guilty of murder
under this section.
In Pawan Kumar v. State of Haryana} on 9th July, 1994 the two accused persons Pawan
Kumar and Balwinder Singh hired a taxi at Amritsar for going to Bhatinda. They alongwith an
1. 2006 Cri. L,J. 2128 (S.C).
2. Sarabjit Singh and others v. State of U.P., 1983 Cri. L.J. 961 (S.C).
3. Birbhan Singh v. State of U.P., 1985 Cri. L.J. 1635 (S.C).
4. 2004 Cri. L.J. 2036 (S.C).
5. 1983 Cri. L.J. 1731 S.C. (F.B.).
unknown girl boarded the taxi which was driven by Shamsher Singh alias Shera. They stayed in the
night in Saharan Hotel. On 10 July, 1994 when Mahavir Singh (PW-6) owner of hotel came at about
8 or 8.30 a.m., the waiter Vijay Kumar told him that at about 1.15 a.m. three customers hired room
No. 5 of the Hotel and two of them went away at about 4.30 a.m. saying to Vijay that their uncle
[ S. 300
380
i.e., the driver was sleeping inside the room and he should be supplied by hotel staff, whatever he
needed and that they will be coming back soon but they have not returned. At about 11.30 hotel
owner Mahavir Singh asked Vijay to knock the door of that room and when there was no reply from
inside, Mahavir Singh saw through a hole of the cooler that somebody was sleeping on the bed. The
said room was opened by duplicate key and they found the person lying on the bed in injured
condition dead. Mahavir Singh lodged FIR at 2.55 p.m. against unknown persons. The police during
investigation recovered certain incriminating materials from room No. 5, on the basis of which the
two persons were made accused. Several witnesses were examined by the trial court and various
documents were exhibited to prove the circumstances as it was not a case of direct evidence. Both
were convicted by trial court and their appeal was dismissed by the High Court but only one of them
appealed to the Supreme Court.
It was held that the evidence of hotel owner was only ?. hearsay evidence because he had
stated whatever he was told by the waiter and it cannot be relied upon. More so when the waiter was
not examined by the prosecution. Further the documentary evidence regarding entry alleged to be
made in the register by accused in presence of waiter was not proved. The letter written by accused
to his mother in which accused was alleged to have confessed his guilt was also not proved. Further,
the recovery of gold chain and ring belonging to deceased from accused persons in view of their
disclosure statements was also not reliable. Therefore in this view of the matter the prosecution has
failed to prove circumstances alleged against the accused persons excepting that they hired a taxi,
which alone cannot form the basis of conviction of both the accused. Thus, both the accused were
entitled to be acquitted.2
In Manzoor and others v. State of U.P.,3 the appellants were convicted of the charge of
murder by the High Court. The appellants and the deceased, were not on good terms. They had gone
to attend a Mela. On the night of occurrence the appellant took the deceased to a lime kiln at some
distance from the Mela ground where one of the appellants fired at the deceased and got him injured
in the abdomen. On hearing shrieks of the deceased four homeguard constables who happened to
pass from that place on their night patrol flashed their torches and saw the accused running away.
They took hirri to the police station and thereafter to the hospital where he died. The Supreme Court
held that the case was not proved satisfactorily beyond reasonable doubt so as to convict the accused
persons for murder. The court did not pay due attention to the dying declaration made by the
deceased in which he had implicated the accused persons.
Cases.—In Inderjit Singh v. State of Punjab,4 the dead body of one Gurbax
1. 2003 Cri. L.J. 3552 (S.C).
2. Pawan Kumar v. State of Haryana, 2003 Cri. L.J. 3552 (S.C).
3. 1983 Cri. L.J. 441 (S.C).
4. 1991 Cri. L.J. 2191 (S.C).
381 [ S. 300
INDIAN PENAL CODE
Singh was recovered on the bank of canal and the deceased was last seen in the company of
appellants Inderjit Singh and Mohan Singh. There was no enmity between the accused and the
deceased. There was no direct evidence to connect accused with the crime.
It was held that the only circumstance that the deceased was last seen in the company of the
accused by itself is not sufficient to establish the guilt of the accused. In a case depending on
circumstantial evidence, the prosecution must establish all the circumstances by independent
evidence and the circumstances so established must form a complete chain in proof of guilt of the
accused beyond all reasonable doubts. The circumstances so proved must also be consistent with the
guilt of the accused.
In Sanjay v. State of (N.C.T. of Delhi),1 accused was interrogated in police station at about 8
p.m. and let off after interrogation. He was directed to come again in morning at 10 a.m. on the next
day. Statement of an independent witness regarding involvement of accused was recorded at 9 p.m.
on same day. In this case the offence alleged to have been committed was murder. The question was
about testimony of independent witness as to making of extra judicial confession by Sanjay the
appellant/accused. It was held that the testimony of the said independent witness was reliable and
not suffering from any contradiction. The mere omission of not arresting the accused during night
time cannot be made a basis for discrediting the testimony of the said witness. In this case blood
stained pant and shirt of another accused was recovered in consequence of disclosure statement. It
was held that failure of prosecution to prove the origin of blood on said clothes would not extend
any benefit to accused.
In Ahmed Bin Salam v. State of Andhra Pradesh,1 on 6-7-1990 three accused persons came
on a scooter which was being driven by accused Burhanuddin and the present appellant hurled five
bombs causing injury to PW-1 as well as deceased Gopal Sharma and deceased Kishan Rao
Kandekar. On account of such injuries Kishan Rao died same day and Gopal Sharma died in the
hospital after 3 days. There was some land dispute between the brother of the present appellant and
PW-1 and others and on account of that dispute one Sabir Bin Salam had been murdered about four
months prior to this occurrence and police had registered cases against PWs-1, 2, 6, and 8. After
being released on bail, PW-1 was running a wine shop and was also doing real estate business at a
place opposite to wine shop. PW-1, PW-6 and PW-7 were three eye-witnesses. The name of the
appellant was not mentioned in the F.I.R and it is only after the statement of PW-6 was recorded on
30-7-1990, the appellant was brought into the arena of accused persons. In this case there were
material contradictions in evidence of eye-witnesses as one of the eye-witnesses had stated name of
some other person to have thrown bomb towards deceased persons, in his statement before police,
however in court he changed his version and named accused. The second eye-witness also changed
his version before police in his delayed examination under section 161, Cr. P. Code (for which there
was no explanation by police) and named accused in his deposition before Court, while the third
eye-witness identified the accused in a test identification parade which could not be held to be test
identification parade, and one more eye-witness though identified accused during trial in court after
two years from occurrence and when no identifiction parade was held by police though he did not
state that he knew the accused the Court held that the conviction of the accused under section 302
was liable to be set aside.
In Ram Gopai v. State of Rajasthan,' on the evening there was a quarrel between deceased
and appellant about which a complaint was made by the deceased with the police. In the night by
1. 2001 Cri. 'L.J. 1231 (S.C).
2. AIR 1999 S.C. 1617.
about 11 p.m. when the deceased Gopinath was trying to repair an electric pump, appellant fired his
rifle at him through the window which resulted in Gopinath falling down dead. His brother
Vishwanath (PW-1) rushed to the scene and the appellant aimed a gun shot at him also but he
escaped by ducking down. The another brother Bharat Bhusan rushed up who too was targetted but
S. 300 ] 382
the target missed and Bharat Bhusan caught hold of the firearm and there ensued scuffle between
the two. It is alleged that police came to the scene and nabbed the appellant. It was held that though
PW-1 Vishwanath has not seen the crucial act of firing at deceased his evidence reached very close
to the version of an eye-witness. Although all the eye-witnesses were interested witnesses being
closely related to the deceased but their evidence cannot be discarded merely on that premise
because inmates of house were natural witnesses to occurrence when incident took place in
midnight inside a dwelling house. It was further pointed out that skeletal facts revealed in F.I.R.
found consistent with detailed narration of eye-witnesses in evidence. Therefore conviction of the
accused under section 300, I.P.C. was held to be proper.
It was held in Shriram v. State of Maclhya Pradesh, that it is not an invariable rule that the
prosecution has to explain the injuries sustained by the accused in the same occurrence. If the
witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the
accused beyond reasonable doubt question of obligation of prosecution to explain injuries sustained
by the accused would not arise. When the prosecution comes with a definite case that the offence
has been committed by the accused and proves its case beyond any reasonable doubt, it becomes
hardly necessary for the prosecution to again explain how and under what circumstances injuries
have been inflicted on the person of the accused. It is more so when the injuries are simple or
superficial in nature. In the instant case trifle and superficial injuries on accused are of little
assistance to them to throw doubt on veracity of prosecution case.
In Gurpreet Singh v. State of Haryana? the appellant and his wife deceased Kalpana had a
love marriage. They were living together in a flat at Gurgaon. Since both the wife and husband did
not pull well they filed a joint petition on 14-12-1993 seeking divorce by mutual consent under
section 13-B of the Hindu Marriage Act. Prior to filing of the petition they had purchased the said
flat in which they were living in their joint name. The deceased had 50 per cent share in the flat and
the consent petition for divorce created an obligation for the appellant to pay Rs. 3,00,000 (three
lakhs) to the wife. In the night of 13/14-2-1994 around 11.00 or 11.30 p.m. there were some shrieks
and cries from the house of Gurpreet Singh and Ashok Majumdar a resident of locality got up from
sleep and saw from the window that the smoke was emitting from the apartment of the appellant. He
noticed that appellant and his servant were present there. The neighbourly gesture prompted Ashok
Mazumdar to telephone both police and fire brigade. When the police Sub-Inspector reached he
found the
1. AIR 1998 S.C. 2598.
2. 2004 Cri. L.J. 610 (S.C).
3. 2002 Cri. L.J. 4688 (S.C).
appellant sitting in his room while the victim Kalpana was lying in burnt condition in another room,
the room in which accused appellant was sitting was not having marks of burns. The Sub-Inspector
sent a ruqa that Kalpana had been murdered by setting her on fire on the basis of which FIR was
recorded. The burnt remains of clothes of deceased were taken into possession by Inspector
Murarilal (PW-7). On 16-2-1994 the appellant was arrested because Ashok Mazumdar PW-1
mentioned in his statement that about 15/16 days prior to the occurrence he had seen Gurpreet Singh
appellant beating his wife Kalpana and she was bleeding from her mouth.
It was held that it is to be noticed that there is no eyewitness account of the incident but the
investigating officer found the appellant sitting in the other room and the body of his wife was
totally burnt in a sitting posture, that of course goes on well with the medical jurisprudence that
since heat would have the effect of stiffening and contraction of muscle causing the arms to become
flex and knees bent. The photographs produced before the Court show the devastation of fire,
obviously a definite attempt to see that one does not survive in any event. The appellant accused has
not offered any reason nor explanation except a plea of alibi which was proved to be false. The
chain of events dispel any doubt and there seems sufficient evidence on record to connect the
appellant with a brutal killing of a wife, the motive of which is apparent. Therefore the conviction of
appellant for the offence of murder and sentence of life imprisonment was upheld by the Supreme
Court.1
In Harisingh M. Vasara v. State of Gujarat,2 the appellant accused was alleged to have
inflicted a number of knife blows on deceased, his kept. The occurrence took place in the house of
complainant who was a tenant of deceased. Both the accused and deceased were living as husband
and wife for the last 7-8 years. Two months prior to the date of occurrence the appellant was alleged
to have attempted to kill the deceased with an axe for which the deceased had filed a complaint
before the police. On the day of occurrence the deceased went to the house of complainant, her
tenant. He was sitting on the chair in front of the room of that house. Two girls namely W and 'S' of
that locality were also sitting on the cart. The appellant came in the house of complainant. After
some quarrel with the deceased, he inflicted a number of dagger/knife blows on deceased. Tenant of
deceased lodged complaint with police on next day. Accused himself appeared before police along
with weapon of offence which was seized. Appellant was arrested and his bloodstained clothes and
383 [ S. 300
INDIAN PENAL CODE
weapon of offence were also seized. The medical evidence showed the infliction of a number of
injuries with the weapon used by appellant.
T
' was held that the evidence of complainant was sufficiently corroborated. The appearance of
accused before the police with dagger and bloodstained clothes fully corroborates the prosecution
evidence. It was also proved that the bloodstained clothes and the weapon of offence had the same
group of blood which was that of the deceased. F.I.R. has been promptly lodged with sufficient
details. Evidence of complainant, an eye witness and natural witness of occurrence was corroborated
by medical evidence and other witness. The fact that names of people gathered on spot was not
mentioned in F.I.R. and other witnesses present at place of occurrence were declared hostile would
not render testimony of complainant inadmissible. It was further pointed out that failure of
complainant to intervene to save life of deceased cannot be a ground to discard his testimony
particularly when he was not asked as to what restrained him from intervening. Therefore,
1. Gurpreet Singh v. State of Haryana, 2002 Cri. L.J. 4688 (S.C).
2. 2002 Cri. L.J. 1771 (S.C).
conviction of accused, in circumstances requires no interference.
In Vikas v. State of Rajasthan,1 one Neeta was married with appellant Vikas on 10th March,
1988. The husband of Neeta and his family members were not satisfied with dowry brought by
Neeta. Therefore, she was being ill-treated and tortured. She gave birth to a female child at her
parents' house. On 28th June. 1990 when Neeta was at the residence of PW-3 Smt. Kamlabai (her
father's sister) Vikas went there and both of them went out on a motor cycle. On the next morning
PW-10, Sanjiv was sent by his parents to the house of Vikas to deliver medicines to Neeta but he
was told by appellant that Neeta was not at the residence and he also refused to take the medicine.
Sanjiv went back and narrated this to his father. A search for Neeta was carried out but it did not
yield any result. Therefore, a report was lodged by PW-9, Narcndralal on 29-6-1990. It was
mentioned in the FIR that on 26-6-1990 Neeta came to his house on account of demand for TV.
being made by the appellant and four others and that they were harassing her for want of dowry. On
28th June, 1990 Neeta had gone to the house of Kamlabai PW-3. Vikas came there with a minor
child at about 7 p.m. Neeta went outside and within three minutes she came back and told her aunt
Smt. Kamalabai that Vikas had come to take her on the Vicky. Next day she did not return. PW-10
Sanjiv his son went to give medicines to his sister Neeta. Appellant informed him that Neeta had not
come there and they have not seen Neeta for the last 4 days. It was further mentioned that on 24-6-
1990 when Neeta was being taken towards Gana Khonda Colony on the way one known person met
them and appellant dropped her back at his residence. Neeta was searched but with no result. The
informant expressed suspicion against Vikas and his family members. Hence a case was registered
under sections 364/498A, Indian Penal Code by the police against Vikas, his father, mother and two
married sisters. Later on dead body of Neeta was recovered at the instance of her husband Vikas.
Her ornaments which she had put on when she visited the house of prosecution witness were
recovered from the room of accused husband. Accused failed to inform anybody that his wife was
missing.
It was held that the. deceased used to visit the house of one of the prosecution witnesses and
inform her about demand of dowry. Witnesses corroborated prosecution version of torture of
deceased by accused persons husband and in-laws for non-fulfilment of dowry demand and the
deceased was turned out from her in-laws house. Therefore, in view of the evidence of witnesses
prosecution need not prove that accused husband was owner of motor cycle on which he took away
deceased from house of prosecution witness. Moreover it is also clear from evidence of witnesses
that Neeta was driven out on two to three occasions but she was again sent back to her matrimonial
house. This keenness on the part of parents to see' that their daughter resides at her in-laws house
peacefully has led to this incident. Appeal was dismissed and appellant Vikas was convicted for the
offence of murder under section.302. He was already acquitted by High Court for offence under
section 309-B and for offence under section 498-A. The sentence for the period they had already
served was maintained. The appellant was also acquitted by High Court for offence under Section
364 of Indian Penal Code.2
In Ashok Kumar v. State of Bihar,' on the fateful day deceased a professor and a daily
morning walker was accosted by the four respondent accused two of whom were armed with guns,
1. 2002 Cri. L.J. 3760 (S.C).

2. Vikas v. Slate of Rajasthan, 7WI Cri. L.3. 3160 (S.C).
one with chopper and the fourth one empty handed. Firstly, one of the assailants fired a shot at him,
on receipt of injury he wanted to flee away but the second assailant hit him with shot fired from his
gun. The empty handed accused caught held of the running deceased, whereafter the fourth assailant
gave chopper injuries on his neck. Thinking that he was dead the assailants left the scene of
occurence. PW-4 who was known to the deceased took him to hospital. There the deceased made a
S. 300 ] 384
statement in which he mentioned the manner in which the occurrence took place, naming all the four
respondents as the culprits of the crime as also the presence of PW-4. Significantly in that statement
he did not mention the presence of any other person not even PW-1 and PW-2 who were claimed by
prosecution to be eye-witnesses. The doctor in the hospital found that the deceased was restless, his
pulse was not detectable and his blood pressure was not recordable. It was held that the doctor
attending on the deceased did not certify that the deceased was in fit condition to make a statement.
The police officer was required to ask the doctor whether the deceased was fit to make a statement
whereafter the statement could be recorded. The statement recorded by the police officer, allegedly
at the instance of the deceased, has been thumb marked by the deceased, even though he was a
literate person and could sign. Had he been in senses, we see no reason, why the deceased could not
have signed the statement. Besides that there is no mention in the statement about the presence of
PW-1 and PW-2 who, as it transpires, were agricultural labourers and would not normally be
morning walkers. Under the circumstances the presence of these two witnesses is doubtful and as
such their evidence cannot be relied on. Therefore, order of acquittal passed by the High Court was
not liable to be interfered with.
In State of Punjab v. Jugraj Singh,2 it was alleged that accused persons armed with double
barrel gun and gandasa (a sharp edged weapon) attacked and assaulted deceased resulting into death.
The eye witnesses testified that accused persons fired two gunshots which hit deceased. Medical
evidence also showed that injuries found on deceased person were gunshot injuries. The gun
cartridges recovered showed that firing would have sprayed pellets all around. It could not be ruled
out that deceased could have received more than one or two injuries as witnesses had run away from
the spot to* save their lives. First information report was lodged promptly. It was held that promptly
lodging of F.I.R. and its despatch to Magistrate supports view that there was no possibility of wrong
person being impleaded. Eye witnesses were also proved to be natural witnesses. Deposition of
doctor before court regarding nature of injuries cannot be disbelieved, merely on account of non-
mentioning of gunshot injuries in post-mortem report. Mere non-examination of ballistic expert
cannot be said to have affected credit worthiness of version put forth by eye witnesses. Therefore,
acquittal of accused by High Court disbelieving eye witnesses on finding a number of injuries on
person of deceased was held as not proper.
Din Dayal v. Raj Kumar alias Raju and others,3 is an appeal by special leave against the
common judgment of Delhi High Court filed by Raj Kumar and Pawan Kumar and the other filed by
Uday Singh. All the three appellants were acquitted by the High Court and therefore Din Dayal an
eye-witness in the case and a close relative of deceased Jai Bhagwan has filed this appeal by
obtaining special leave from the Supreme Court. It was held that the eye-witnesses were closely
1. 1999 Cri. L.J. 599 (S.C).
2. 2002 Cri. L.J. 1503 (S.C).
3. 1999 Cri. L.J. 467 (S.C).
related with the deceased but they did not accompany the deceased to the hospital nor had they
taken any trouble of going and informing the police about incident. After seeing the incident they
quietly went back to their home. Their conduct is unnatural. The other eye-witness Din Dayal who
was close relative of Jai Bhagwant and who had accompanied the deceased to the hospital did not
disclose the name of the accused to the police constable on duty even though he disclosed other
facts regarding the incident. All this creates serious doubt regarding truthfulness of evidence of eye-
witnesses and therefore order of acquittal passed by the High Court on reappreciation of evidence
was held to be proper.
In Daljeet Singh v. State of Punjab,11 the two appellants Daljit Singh and Jaspal Singh along
with one Satinder Singh in furtherance of their common intention killed Dharam Singh. At the time
of incident the appellant Daljit was driving a motor cycle and Satinder Singh was a pillion rider, on
a signal given by Jaspal Singh both Daljit Singh and Satinder Singh had gone near the deceased and
Satinder Singh had fired two shots from his pistol. The two eye-witnesses (PW-2) Balbir Singh, who
was son of deceased and (PW-3) Sulkhan Singh who was brother of deceased belatedly reached the
deceased after chasing the accused. Their evidence is contradicted by the evidence of other witness
(PW-4) Gurdip Singh. The conduct of the two eye-witnesses l'W-2 and PW-3 renders their presence
on the spot doubtful. (PW-3) Sulkhan Singh had stated that he had seen the incident while he was
standing near his workshop whereas in police statement he was said to have stated that he was
standing near his house. This witness instead of rushing to the place where his brother had fallen
injured went along with Balbir Singh in search of accused. (PW-4) Gurdip Singh had also not seen
the incident because he had come out of the workshop only after hearing the noise of firing. He
stated that he had seen two young Sikh boys running away on a Hero Honda motor cycle. He did not
identify them. If really appellant Jaspal Singh was standing near the place of incident as stated by
the other witnesses then (PW-4) Gurdip Singh would have definitely noted his presence and would
have identified him because the workshop of Jaspal Singh is situated at a short distance of about 200
yards from his workshop. It was, therefore, held that the prosecution has failed to prove its case and
the appeal was therefore allowed and the conviction was set aside.
385 [ S. 300
INDIAN PENAL CODE
In Amrik Singh v. State of Punjab? the appellant was tried along with three other accused for
causing the death of Manna Singh. The trial court convicted him under section 302 and acquitted the
other accused. The High Court confirmed his conviction as it found that the evidence of the three
eye-witnesses (PW-2) Swaran Singh, (PW-3) Raj Singh and (PW-4) Amar Singh is quite consistent
and their evidence proves that the apppellant had given a barcha blow to Manna Singh on his chest
which proved to be fatal. It was held by the Supreme Court that the eye-witnesses had received
injuries during this very incident, and therefore, their presence at the time of the incident has to be
believed. They have specifically stated that after reaching the spot on hearing cries, they had
prevented the accused from giving further blows to Manna Singh. With respect to this part of their
evidence, they were not contradicted by their police statements. Therefore, there can be no doubt
regarding their having seen the blows given by the appellant merely because they had not
specifically referred to them in their police statements. Merely because witnesses had not
specifically stated in statements recorded by police under section, 161 Cr. P.C. which blow was
given by which accused their evidence cannot be discarded. Conviction was therefore upheld and
the appeal dismissed.
1. 1999 Cri. L.J. 454 (S.C).
2. 1999 Cri. L.J. 463 (S.C).
In Bhola Singh v. State of Punjab,1 the case of prosecution is that on 12-7-1992 at about 5
p.m. Saun Singh (deceased) acompanied by his son Didar Singh and son-in-law Kartar Singh
attempted to cut Kikar trees which was objected to by Puran Singh who asked him to wait till actual
demarcation of trees and refrained him from cutting the trees till then. Saun Singh returned but on
the next morning that is on 13-7-1992 at about 6 a.m Saun Singh accompanied by his son and son-
in-law proceeded towards his field when Balwinder Singh, Bhola Singh (appellant) and Lakhbir
Singh who were armed with gandasa and Jagsir Singh who was armed with a ghop attacked him.
Bhola Singh exhorted that Saun Singh be not permitted to go and be taught a lesson. Appellant
Bhola Singh assaulted Saun Singh from blunt side of the gandasa on his right arm. He also inflicted
a second blow causing injury on the head of Saun Singh again by blunt side of the gandasa. Saun
Singh fell on the ground and Jagsir Singh assaulted him with ghop dangwise which hit Saun Singh
on the right arm where earlier Bhola Singh had inflicted injury. Balwinder Singh assaulted with
gandasa from blunt side which hit on the left and right leg near ankle. Kartar Singh and Didar Singh
raised alarm for help but when accused persons turned towards them they ran away. Kartar Singh
made arrangement for taking Saun Singh to hospital who was found to have died at 8 a.m. Post-
mortem report showed that assault was made from blunt side of weapon. It was held that it is
unlikely that person armed with sharp-edged weapon would only use its blunt side. Eye-witnesses
omitted to mention nature of weapon used. Their version that accused had used blunt side of weapon
was set out to fit in with post-mortem report. Their evidence makes their presence on scene of
occurrence doubtful. In the circumstances accused was entitled to be acquitted.
In Surinder Kumar v. State of Punjab? one Vijay Pal, a veterinary doctor was found dead and
he was alleged to have been murdered. It is alleged that 5 or 6 days after the murder, the appellant,
his two brothers Varinder Kumar and Narinder Kumar and one Sukhbinder Singh alias Sukha met
Shangara Singh PW-6 who was the chairman of the Market Committee of Lohian, the police station
within whose jurisdiction the dead body of deceased was found and confessed that they had
committed the murder. After making the confession they requested him to produce them before the
police as they were harassing their family. PW-6 asked them to come after a day or two but they did
not come and he reported to the police what he had heard from them. There were no eye-witnesses
to the occurrence. The alleged motive was that accused was served with transfer order and the
deceased was to replace him. The Court observed that the evidence of PW-6 who only testified
about extra-judicial confession of guilt is improbable and lacking in credence. It does not stand to
reason—rather it seems odd—that all the accused persons should be seized at the same time by a
mood to approach PW-6 to make a joint confession. It is significant that they had no particular
relationship or connection with PW-6 so as to confide to him and to take his assistance for
surrendering before the police. It was held that the extra-judicial confession made jointly by all
accused was suspicious, improbable and uncoiToborated and motive is not relevant in absence of
proof of any other circumstance pointing of guilt to accused. Therefore the accused was entitled to
acquittal.
3. 1999 Cri. L.J. 1132 (S.C). 2.

1999 Cri. L.J. 267 (S.C).
S. 300 ]
In Deva v. State of Rajasthan,1 the cattle of the deceased entered into the field of the accused
Deva and damaged the crop. Accused therefore put those cattle in. the cattle pond. Deceased
however agreed to give six maund of maize as compendation after which the catties were released.
It is alleged that Deva had gone out and on his return in the evening there was some altercation
between him and the deceased. PW-14 however intervened and got them separated. In the night
while accused was sitting at hotel belonging to PW-7 the deceased came out of his house and seeing
him coming out the accused left the hotel and inflicted injuries upon him by a dagger (churi) on the
stomach of the deceased. The deceased then went to his house and informed his wife PW-6 that the
accused has inflicted the injuries to him by means of a knife. The injury resulted in his death. The
evidence of eye-witnesses showed that when the accused and deceased were grappling with each
other the latter alone was holding a stick in his hand, it is difficult to accept the statement of
deceased's wife PW-6 that the deceased had told her that Deva had given him knife injury. That
apart the nature of injuries are such that on getting these injuries blood must have oozed and in that
case the eye-witnesses could have easily noticed the same but in fact none of them have noticed any
such blood injury on the deceased. The eye-witnesses did not state that the accused had given knife
blow on the deceased. It was held that merely because of alleged recovery of a knife at instance of
accused it cannot be said that accused was perpetrator of crime. Since the guilt of the accused was
not proved beyond doubt his conviction under section 300, Indian Penal Code was set aside by the
Supreme Court.
In Jinat Mian v. State of Assam,2 a special leave petition was filed by the accused against the
judgment of High Court, whereby the accused were held guilty under section 302, read with section
34, and also under section 324, Indian Penal Code. The High Court reversed the judgment of the
trial court acquitting the accused on the basis of non-reliability of evidence. But the High Court held
that the findings of trial court were unreasonable. The Supreme Court in this case upheld the
findings of the High Court and held that the person who had entered the house, attacked the
deceased with sharp-edged weapon in the presence of his wife, lone eye-witness, are guilty of the
offence under section 302/34, as well as under section 324, of Indian Penal Code. The defences of
non-reliability of the only eye-witness, non-examination of other witnesses were found to be
insufficient to decide the case otherwise.
In Liyakat v. State of Uttaranchal,3 the deceased was a child of one and half years. His
parents placed the child in custody of accused and when the parents enquired about the child on
returning from field, the accused offered no explanation about missing child. The dead body of the
child was found burried in a hut which was exclusively in possession of the accused. There was no
explanation by the accused as to how body was found burried in his hut. It was held that the silence
of the accused is a vital circumstance which adds to chain of circumstances leading to death of the
child and therefore accused was liable to be convicted for murder.
It was also observed that for a crime to be proved it is not necessary that crime must be seen
to have been committed and must, in all circumstances be proved by direct ocular evidence by
1. 1999 Cri. L.J. 265 (S.C).
2. AIR 1998 S.C. 533.
3. 2008 II Cr. L.J. 1931 (S.C).
examining before the court those persons who had seen its commission. The offence can be proved
by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly
by means of certain inferences drawn from factum probans, that is, the evidentiary facts. In other
words, circumstantial evidence is not direct to the point in issue but consists of evidence of various
other facts which are also closely associated with the fact in issue that taken together they form a
chain of circumstances from which the existence of the principal fact can be legally inferred or
[ S. 300
387
presumed. When a case rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found to be incompatible with
the innocence of the accused or the guilt of any other person.
In Sanjiv Kumar v. State of Himachal Pradesh? the allegation against the accused based on
circumstantial evidence was that he in furtherance of conspiracy caused murder of deceased. The
accused was last seen in the company of the deceased. The evidence of witness was that the accused
was seen with blood-stained clothes immediately after occurrence. The weapon of offence was
recovered at the instance of the accused. It was held that the chain of circumstances so proved is
complete and the conviction of the accused for murder is proper.
In State of Rajasthan v. Dhool Singh? a complaint was lodged with police station alleging
that on the previous day at about 9 p.m. the respondent herein Dhool Singh had caused serious
injuries with a sharp-edged weapon, allegedly a sword to Amar Singh son of Shanker Singh in a
field known as Pahada which incident according to the complaint was noticed by Ramesh PW-1.
The attack in question was alleged to be due to the dispute between the respondent herein and the
deceased Amar Singh as to the right of the deceased to graze his cattle on the land belonging to the
respondent. Police after investigation filed a charge-sheet against the respondent for offences
punishable under Section 302 of I.P.C. as also under Sections 4 and 25 of the Arms Act. The Trial
Court found the respondent guilty of offences charged against him but in appeal the High Court
found the accused not guilty of offence under Section 302 of I.P.C. but for the offence under
Section 304 Part II of I.P.C. Hence the State preferred an appeal before the Supreme Court against
the order of the High Court.
The Supreme Court held that in the instant case it is true that the accused had dealt one single
blow with a sharp-edged weapon on a vital part of body, namely the neck. This act though solitary
in number had severed stern oclinoid muscle, external jugular view, internal jugular view and
common carotid artery completely leading to almost instantaneous death. Any reasonable person
with any stretch of imagination can come to the conclusion that such injury on such a vital part of
the body with a sharp-edged weapon would cause death. Such an injury not only exhibits the
intention of the attacker in causing the death of the victim but also the knowledge of the attacker as
to the likely consequence of such attack which could be none other than causing the death of the
victim.
1. 1999 Cri. L.J. 1138 (S.C).

2. 2004 Cri. L.J. 931 (S.C). '
It was further held that the number of injuries is not always the determining factor in
ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon
used in causing such injury which are the indicators of the fact whether the accused caused the
death of the deceased with an intention of causing death or not.
In this case the Doctor had opined that cause of death was incised wound on neck which led
to excess bleeding and heart failure. It cannot be said that doctor had not stated that injury was not
sufficient in ordinary course of nature to cause death. The decision of the High Court that accused
cannot be said to have the intention of causing injury likely to cause death was based on improper
construction of medical evidence and was therefore liable to be set aside. It was also held that
although injury caused by sword was not established by evidence but there was clear evidence of
accused having caused serious cut injury in neck of deceased resulting in excess bleeding and death.
The injury was not disputed and such injury cannot but be caused by sharp-edged weapon.
Therefore the fact that use of sword is not established is immaterial.
In State of Tamil Nadu v. P. Muniappan,1 an appeal was filed against the judgment of High
Court of Madras setting aside the judgment of lower court. In this case the respondent was treating
his wife with cruelty and wanted consent for second marriage or divorce as well as asking her to
leave the job and was demanding dowry. Their family life was disturbed and one day the wife was
found hanging in one of the rooms. He was charged for murder. The trial court held him guilty of
the same on the basis of circumstantial evidences but the High Court reversed it and acquitted the
respondent. But the Supreme Court held him liable for the same as the deceased and respondent
only were living in the house. Their life was not smoothly sailing and respondent wanted to'get rid
of her. He could not satisfy beyond doubts as to why he was sleeping out on that fateful day, as well
as on other doubtful evidences which were a pointer towards his invlovement. Therefore, the
Supreme Court held him guilty of causing death on the basis of circumstantial evidences.
In Ram Kumar Madhusudan Pathak v. State of Gujarat,2 the appellant along with his wife
and other family members was living in a four storied house. At the top floor of the house there was
only one room which was used by the appellant and his wife Vasumati (the deceased) as their bed
1. AIR 1998 S.C. 504.

2. AIR 1998 S.C. 2732.
S. 300 ]
room. On January 4, 1984 the date of occurrence the appellant took his evening meal and started
gossiping with other members of the family. Vasumati was not present at that time. Sometime later
appellant went to his bed room and coming down a little later told them that Vasumati was lying
unconscious. He called PW-1 his family physician who examined Vasumati and advised her
removal to hospital. She was taken to hospital in van and was declared dead. It was held to be a
case of homicidal death and not a case of suicide because there was no mark of physical violence on
person of deceased which is likely in case of intruder or of sexual assault. There was no evidence of
theft or attempt to commit theft. Husband and wife were the only persons occupying the said floor
and there was no scope for any outsider to go to the said floor. Accused alone went to the top floor
room where deceased was at the material time. He came down a little later and gave a false version
that deceased was unconscious. In the opinion of the medical expert hardly two or three minutes are
required for causing death by strangulation. There were marks of injuries on person of deceased. In
view of the above facts and also that her body, when first seen was found lying on cot with ligature
mark on the neck and not hanging completely demolishes the theory of suicide and proves that she
was murdered. Moreover the accused's version that the deceased had not taken her food for two or
three days due to certain ailment was falsified as semi-digested food was found in her stomach. In
the circumstances of the case the only conclusion is that accused after strangulating his wife came
out with false version that she was lying unconscious. Therefore the appellant was liable for
committing murder.
In Lichhama Devi v. State of Rajasthan} D was married with P and her mother-in-law 'M'
used to harass her for dowry. Being ill-treated D remained for sometime with her parents. She had
come to her husband's house only 4 or 5 days before the fateful day. On the fateful day she was
found with flames in the kitchen. Upon hearing her pathetic cries, the neighbours rushed but not her
near relatives in the house. The neighbours took her to hospital. P's elder brother 'B' was seen by the
neighbours behind the kitchen and running downstairs when 'D' was in flames. The husband 'P' was
also a silent spectator. He did not take his wife to hospital and he did not make arrangement for
securing blood when she was struggling for life. Her mother-in-law had some hours before burning
struck over the forehead of D with a pan while D was cleaning utensils. The deceased had disclosed
before death to her father and the attending doctor that she was burnt by her mother-in-law.
Neighbours had heard the cry 'bachao-bachao'. When the neighbours came in they found the
kitchen doors closed with an iron chain fastened from outside. The mother-in-law of deceased and
other relatives refused to assist the neighbours in taking D to hospital. Under these circumstances, it
can be said that M, the mother-in-law of the deceased and B elder brother of deceased's husband
will be liable for committing murder of D. Death was caused by M for dowry and she was assisted
by B whereas P had assisted by remaining silent. P positively dissociated himself as if he had
nothing to do with his wife. There appears tacit understanding between P and others who actually
perpetrated the crime. P is liable for abetment.2
Murder in furtherance of common intention.—It was held in Vishwanath Shantha
Nallapa Dhule v. State of Karnataka,3 that if persons assault a person together whereby one accused
gave a fatal blow and other raised his weapon without giving any blow, both are liable for
committing murder because of having a common intention under section 302, read with section 34,
Indian Penal Code.
In Ali Ahmad v. State of U.P.,4 the accused Ali Ahmad and Mahamood Sher initially
assaulted Nathu and chased him right upto the house of Mahmood, the deceased. The accused
entered into the house of Mahmood and fired at him, his wife and child. It was held that Ali Ahmad and
Mahmood Slier acted in concert and it was in furtherance of common intention that they had caused death of
1. 1988 Cri. L.J. 1812 (S.C).
2. Refer to obiter dicta in Lichhamadevi v. State of Rajasthan, 1988 Cri. L.J. 1812 (S.C).
3. AIR 1998 S.C. 246.
4. AIR 1998 S.C. 1232.
Mahmood and bodily injury to others. The accused were inter alia convicted under section 302, read with
section 34, Indian Penal Code.
In Gajjan Singh v. State of Punjab,1 the evidence of PW-5 and PW-6 is quite consistent and it clearly
establishes that both the appellants had fired one shot each at the deceased and caused injuries to him. The
medical evidence shows that one injury was on the forehead and one on the chest of the deceased. It was held
that absence of pellet marks on walls of building is not a valid ground for disbelieving eye-witnesses because
the incident had taken place in the outer part of the building. The witnesses have not stated that shots were fired
from the two guns seized by the police. Therefore non-production of the report of the ballistics expert is of no
consequence. Conviction of the accused requires no interference. It was further held that evidence clearly
establishes that both the accused went together to place of incident and fired shots at deceased. One of them
[ S. 300
389
Gajjan Singh was charged under section 302, read with section 149, Indian Penal Code. Therefore courts below
have not committed any illegality or impropriety in convicting him under section 302, read with section 34 of
the Indian Penal Code.
In Ram Deo Kahar and others v. State of Bihar? accused persons came together heavily armed. They
were searching one person. On being informed by deceased that he is not there accused fired at deceased. Other
accused prevented prosecution witnesses from helping deceased by assaulting them. All accused left place
together. They also fired shot together so as to prevent prosecution witnesses to chase them. On these facts it
was said that common intention stands proved. Merely, because accused caused death of other person than
person they were looking for was not held sufficient to show that they had no intention to cause murder. Further
non-explanation of injuries on accused which were simple was held not sufficient to reject prosecution case.
In Ambaram v. State of M.P.,3 accused persons armed with lethal weapons assembled for no reason in
front of house of deceased for taking drinks and caused nuisance. They attacked landlady on being asked not to
create nuisance there. Deceased who intervened was assaulted by appellant on head with blunt portion of axe.
Other accused also assaulted him with weapon resulting in his death. It was held not to be a case of grave and
sudden provocation under Exception I to Section 300. Appellant took active part in assaulting deceased. He had
also assaulted another person on his head. It was further held that the plea that he had caused single injury was
not available and he was liable to be convicted under Section 300 read with Section 34, I.P.C.
In Pal Singh v. State of Punjab,4 the appellant (P) alongwith Suba Singh (S) went to the house of
Mukhtiar Singh armed with firearms at about 9.30 p.m., scaled the wall of courtyard and went inside the house
of the deceased Mukhtiar Singh where he was sitting alongwith his brother Basant Singh and his uncle Sudagar
Singh and told deceased to handover his tractor which he refused. Therefore Suba Singh opened fire and killed
Mukhtiar Singh on the spot. According to prosecution at that time appellant Pal Singh was also having a pistol
in his hand. After killing Mukhtiar Singh they started running away. Sudagar Singh (PW-3) was able to catch
hold of Suba Singh and Basant Singh (PW-2) was able to catch Pal Singh. Both the assailants managed to
escape but in the scuffle Sudagar Singh was able to snatch away the AK-56 rifle of Suba Singh, Karnail Singh
(K) (PW-4) had seen both the accused running away soon after the incident. Before the trial could begin Suba
Singh was killed in an encounter and therefore, the trial had proceeded only against appellant Pal Singh.
Accepting the evidence of two eye-witnesses (PW-2) Basant Singh and (PW-3) Sudagar Singh and the evidence
of Karnail Singh (PW-4) who had seen both the accused running away after incident the Court convicted
appellant Pal Singh under section 302 read with section 34, IP. Code.
In Munnilal, S/o Gokul Teli v. State of M.P.,1 appellant along with others was alleged to have killed
deceased by assaulting him by axe and sword. Incident was alleged to have taken place out of enimity.
Appellant had no enimity with deceased. He was neither armed nor had done any overt act. It was held that mere
1. AIR 1998 S.C. 2417.
2.(2009) 2 Cri. L.J. 1715
(S.C).
3 .2007 III Cr. L.J. 2743
(S.C).
fact that he was in company of accused who were armed would not be sufficient to attract application of Section
34 IP. Code. Section 34 I.P.C. is based on principle of joint liability and common intention amongst participants
is essential element for its application. But proof of some overt act by every participant is not necessary.
Therefore, conviction of appellant under Section 300/34 was set aside.
In Kishore Eknath Nikam v. State of Maharashtra,2 accused attacked deceased with knife. Co-accused
prevented some other persons who tried to intervene and save deceased from attack by threatening them with
knife. It was held that conduct of the co-accused was sufficient to attract Section 34 of IP. Code as he acted in
furtherance of common intention of main accused in commission of murder. Therefore, conviction of co-
accused under Section 300 read with Section 34 of IP. Code was held to be proper.
It was held that the evidence of both the eye-witnesses was not suffering from any infirmity and was
consistent with evidence of Karnail Singh. There was no reason for witnesses to falsely involve the accused.
Karnail Singh had given reasons in his examination-in-chief for his knowing the accused and no doubt they
were not stated in his police statement but he was not contradicted on this point that he had in fact disclosed
their names to the police. Therefore, his evidence that he had disclosed the names of the two assailants to the
police deserve to be accepted. Thus the evidence clearly establishes the presence and participation of Pal Singh
in commission of crime and sharing of common intention and as such he was liable to be convicted under
section 302 read with section 34, IP. Code.3
In Shivraj Bapuray Jadhav v. State of Karnataka,4 there was enmity between the family of
deceased and the accused on the question of sharing the ancestral residential house. On 27-5-1995
when the deceased Krishna Jadhav was returning to house at about 11.00 p.m. the inmates of his
house heard the barking of dog of accused No. 1 and when PW-1 came out to find whether it was
her husband, A-4 came out of her hut holding a stick and battery and started abusing deceased.
When the decease told that he was not a thief entering the hut and why she had brought the torch
and the stick, A-4 assaulted the deceased with a stick abusing him and she was followed by the
other accused who were holding an axe, an iron pipe and sticks. All the accused started assaulting
the deceased as a result of which he fell on the ground in front of the house of accused and died on
the spot.
The accused persons were acquitted by the trial court but High Court convicted them. Hence
an appeal to the Supreme Court has been made. It was held that incident took place two days prior
to new moon day and when the parties are used to live in midst of nature and accustomed to live
without light, the plea that eye-witnesses could not have seen the occurrence is not tenable. Instead
the witnesses could have identified accused easily not only from the voices but from the fact that
they are known persons and are close relatives and living in the neighbouring huts. Moreover
1. (2009) 2 Cri. L.J. 1590 (S.C).

2. 2007 Cri. L.J. 1007 (S.C).
3. Pal Singh v. State of Punjab, 1999 Cri. L.J. 3962 (S.C).
4. 2003 Cri. L.J. 3542 (S.C).
S. 300 ]
incident occurred very near to the huts of deceased and accused and presence of eye-witnesses at
that lime was normal and not strange. Dispute between accused and deceased over partition of
house was sufficient to constitute motive. Therefore, the High Court has correctly convicted the
accused under section 302 read with section 34 of Indian Penal Code.
It was held in Nallabothu Venkaiah v. State of Andhra Pradesh1 that the conviction under
section 300 simpliciter without aid of section 149 is permissible (a) if overt act is attributed to the
accused resulting in fatal injur)' which is independently sufficient in the ordinary course of nature to
cause tiie death of deceased and is supported by medical evidence; (b) wrongful acquittal recorded
by the High Court even if il stood, would not impede the conviction of accused under section 300
read with section 149 of Indian Penal Code; (c) charge under section 300 with the aid of section 149
could be converted into one under section 300 read with section 34 if the criminal act done by
several persons less than five in number in furtherance of common intention is proved.
In Sunil Kumar v. State Government of NCT of Delhi.2 Rajesh, not finding his brother
Jaikishan in his room in the morning started searching him and at about 7 a.m. he found his brother
Jaikishan in the house of one Mumtaz sitting alongwith Dharamvir and appellant Sunil. When
Rajesh was on way back to his home he heard the voice of his brother and saw him running from
the house of Mumtaz. While so running appellant Sunil caught hold of Jaikishan and appellant
Dharamvir gave him knife blows. Rajesh raised the alarm and thereafter some other persons
reached there. The two accused ran away. Rajesh alongwith Vinod took his brother to the hospital
where he was declared brought dead. Rajesh complained that Mumtaz, Dharamvir and Sunil in
furtherance of their common intention had attacked his deceased brother, Jaikishan. Rajesh was the
solitary eye-witness. It was held that the testimony of solitary eye-witness was clear, cogent and
trustworthy and it cannot be discarded merely because there were some minor omissions
considering the fact that the examination in Court took place years after the occurrence. Eye-
witness has categorically described the assaults on the deceased stating that accused gave several
blows on the person of the deceased Jaikishan while co-accused caught hold of him to facilitate the
assailants. Therefore the conviction of accused persons under Section 302 read with Section 34 on
the basis of sole testimony of eye-witness is proper.
In Kamain Ram Narsaiah v. State of Andhra Pradesh? all the seventeen accused persons
belonging to one political party were waiting for victim to come who belonged to another political
party. They conjointly attacked him with common intention resulting into his death. There were
multiple injuries on body of deceased. There was no evidence as to who caused fatal injury. They
were not charged under Section 34 of I.P.C. It was held that under the above circumstances
conviction of accused persons under Section 302 read with Section 34 was proper even in absence
of charge under Section 34 of I.P.C.
In Ramjee Rai v. State of Bihar? on 21-08-1980, Raj Nath and Baij Nath, the two brothers
had gone to their agricultural land for cutting crop. The appellants together with Bharat Rai and
Ganesh Rai look both of them forcibly on a boat to the Dhab and let the boat move freely. After the
boat had proceeded some distance they started assaulting the deceased. Raj Nath however finding
an opportunity jumped from the boat and started swimming towards higher ground shouting and
crying for heIP. Baij Nath died as a result of assault and his dead body was carried away in boat.
The occurrence had been seen by Satyanand Singh PW-1, Kameswer Singh PW-2 and Pancham
Singh PW-5. Because of flood and night information of incident could not be given to police in the
night but was given by Raj Nath only the next morning. Allegedly the murder of Baij Nath was
1. 2002 Cri. L.J. 4081 (S.C).
2. 2004 Cri. L.J. 819 (S.C).
3. 2004 Cri. L.J. 4217 (S.C).
4. 2006 Cri. L.J. 4630 (S.C).
committed in retaliation on account of some dispute relating to land. As per FIR two accused were
carrying country made pistols while the rest were armed with gandasas, lathis and spears. There
were in all 4 accused persons. The dead body was recovered after five days as it was seen by
chowkidar, PW-4 of the village who reported about it to the informant Raj Nath who identified it.
All the accused persons were convicted by the trial Court for Commission of offence under Section
302/34 read with Section 201 IPC. They were sentenced to undergo life imprisonment for offence
under Section 302/34 and five years rigorous imprisonment under Section 201 IP. Code. Post-
mortem report suggested that sharp cutting weapons had been used. Two accused persons were in
possession of sharp cutting weapons. It was held by the Supreme Court that the appellant accused
persons came in group and some of them started assaulting the deceased with weapon in their
hands. In a case of this nature it was impossible for the first informant to pin-point the. exact overt
acts committed by each of the accused persons individually. Section 34 is therefore clearly attracted
in a case of this nature. Appeal was therefore dismissed and sentence was upheld.
Murder in prosecution of common object.—In Mahantappa v. State of Kaniataka,'
Seventeen persons including the ten appellants formed themselves into unlawful assembly armed
1. 1999 Cri. L.J. 450 (S.C).

[ S. 300
391
with various weapons and in prosecution of their common object, accosted Veerbhadrappa (PW-1)
and Pampane Gowda (the deceased) when they came out of the hotel of Pampayya (PW-4) and
assaulted the former with sword. Thereafter they chased (PW-1) Veerbhadrappa and the deceased
who being frightened took shelter in the nearby house of Neelamma (PW-8), after bolting the door
of the house from inside. They then attempted to set the house of PW-8 on fire by pouring kerosene
soaked lighted cotton inside the house. Finding no other alternative when PW-8 opened the door of
her house, the accused persons trespassed into it assaulted PW-1 and dragging the deceased out of
the house killed him with the weapons they were carrying. They then threw the dead body in the hut
of one Hajamara Mahentappa and set it on fire with a view to destroying the evidence of the
murder. On consideration of the evidence of five eye-witnesses and the doctor the trial court held
that the incident did not occur in the manner alleged by the prosecution and acquitted the accused.
In appeal the High Court reappraised the evidence of eye-witnesses and found (he same reliable and
fully corroborated by other evidence. The High Court convicted the appellant. It was held by the
Supreme Court that the evidence of eye-witnesses was corroborated by objective findings of
Investigating officer and medical evidence and as such the participation of accused persons and
their active roles in incident was established by two or more eye-witnesses and their conviction was
proper. However the conviction of other two accused persons solely on identification by one
witness only was not proper. Further there was no evidence to establish that remaining accused
persons were members of unlawful assembly. Their presence at scene of occurrence as onlooker
cannot be ruled out, hence they were entitled to benefit of doubt. It was further pointed out that the
so called evidential infirmities for which the eye-witnesses have been disbelieved are so trivial that
the trial court should not have referred to them, much less, relied upon. The trial court has
committed error in not relying on the evidence of PW-1 only because he could not say the number
of blows given by each of the accused on his person nor could he say on which part of his body
such blow was inflicted. These are trivial infirmities.
In Kishori v. State of Delhi? three accused persons, namely, Kishori, Mohd. Abbas and Dule
Chand who were members of mob were alleged to have attacked and killed three deceased persons
Sajjan Singh, Hoshiar Singh and several other Sikhs including Kishan Singh. All deceased persons
belonged to one Sikh cojnmunity. In the course of evidence Asandi Kaur (PW-3) is clear in her
evidence that she could identify Kishori and one Lambu as members of mob. She stated that her
husband cried addressing Kishori "Kishori you were my friend and why are you killing me." She
has been firm in stating that death of her husband Inder Singh took place in her presence on account
of injuries inflicted by the mob and she is equally clear about the presence of Kishori in the mob
having khanjer in his hand. The evidence of (PW-4) Burfi Kaur wife of Hoshiar Singh is not that
clear and there are discrepancies. Evidence tendered by (PW-5) Bhakti Bai is categorical in stating
that Kishori, apppcllant was present at the lime of attack by the members of the mob and she was
able to identify him in the Court as well. She is clear that several blows were inflicted on her
husband when she was asked to leave her husband on the threat of dishonouring her but she is
definite that her husband was killed. It was held by the Supreme Court that the record was
thoroughly examined and no discrepancy was found which would have a bearing on the evidence
tendered by the eye-witnesses to the effect of the death of their respective husband and in
identifying the presence of the accused in the mob which indulged in their killing. It was pointed
out that matters of detail as to the roles attributed to the several persons in the mob or narration as to
the succession of events that took place may not be of much relevance. Therefore in Supreme
Court's view the High Court and Sessions Court were justified in affirming the conviction of the
accused Kishori. Guilt of accused persons as members of mob was established and their conviction
was proper.
It was further held that when accused persons in a mob indulged in riots resulting in killing
of innocent person, looting and burning of their properties and when there was no evidence showing
that accused was leader of mob or he exhorted members thereof to kill deceased, acts of mob of
which accused was member was not result of any organisation indulging in violent activities then
reduction of death sentence into life imprisonment would be justified.
In Rameshwar Pandey v. State of Bihar,1 on 28th August, 1994 at about 9 a.m. when five
members of the deceased's family were sitting in the Dalan of the house after taking their breakfast
about 18-20 people armed in Khaki uniform came and surrounded them. Pw-8 a female member of
the family rushed to the door and finding so many persons armed with firearms closed the door and
rushed inside the house. She along with three other female members of the family went to the roof
of the house along with the licensed gun of one of the deceased and a bundle of cartridges. From the
roof of the house she and the other female members saw that those people who had surrounded the
deceased had tied their hands behind their back and were demanding the gun and cartridges. The
father-in-law of Pw-8 implored her to give away the gun other wise all of them would be killed.
Heeding to his advice Pw-8 threw the gun from the roof along with the cartridges. One of the
1. 1999"Cri. L.J. 584 (S.C).

2. 2004 Cri. L.J. 1407 (S.C).
S. 300 ]
members of the mob picked up the gun and cartridges whereafter ali five members of the family
whose hands had been tied were taken by the mob towards the south. Soon thereafter the female
members heard the sound of 10-15 gun shots. Later they were informed that all the live members
have been shot dead. The dead bodies were found in the orchard nearby. These female members are
Pws. 5, 6, 7 and X. On getting information from some passer-by that an occurrence had taken place
the police arrived in the village and on request of S.I. Police Pw-5 opened the door and narrated the
incident to him which was taken down in writing on the basis of which first information report was
drawn up. Pw-1, Sanjay, the son of Pw-8 stated that he had seen the actual incident in which all the
five members were shot dead and then he informed his uncle Pw-4 about it. The Trial Court on the
basis of the evidence of four female members Pws. 5 to 8 convicted the accused under section 300,
384 read with section 149 which was affirmed by the High Court.
It was held that no other inference except the inference of guilt can be drawn from the
circumstances stated above. There is no material on record even to suggest indirectly that the
offence was committed by any other person or persons or that some of the persons who were
initially members of the unlawful assembly dissociated themselves and did not participate in
murder. In the absence of any such plea or material on record the application of section 149 of IPC
cannot be doubted.
Having regard to the facts of. the case that all the members of the mob had come armed with
firearms i.e., deadly weapons with a view to commit the offence under section 384 of I.P.C. all the
members must be attributed the knowledge that it was likely that the offence of murder may be
committed in prosecution of that object. It may be that actual shouting may have been done by one
or some of the accused persons only but applying section 149 each one of them must be held
vicariously liable for the offence committed even by only some of them. Even otherwise the facts
lead to the only conclusion that the unlawful assembly had come determined to commit the offence
of murder. They were all armed, came together and abducted the deceased who were soon thereafter
murdered using fire arms. Hence, conviction of the accused persons under section 384/149 and
302/149 would be proper.1
In Buiinilal Chaudhary v. State of Bihar,2 a relation of PW-10, Yogendra Raut had purchased a she-buffalo from Sattam Chaudhary of his village for Rs. 6800/-
out of which he was short by Rs. 700/-, which was promised to be paid later after intervention of Yogendra Raut, the informant. On the day of occurrence Maniraj
Chaudhary (A-3), son of Sattam Chaudhary called Yogendra Raut at his house where he gave him Rs. 400/- and promised to pay the balance amount of Rs. 300, the next
day. Thereafter Maniraj, A-3 took out a country made pistol and pointed towards him. He shouted for help which attracted his family members who came at the house of
Sattam. He came back to his house along with his family members. Later on while his father Brahmdeo Raut PW-5 and his brother were going to bathan. When they had
reached mid-way they were attacked by appellant/accused A-l and nine others A-2 to A-10 who were armed with different weapons. The accused persons surrounded the two
brothers. In the meantime his younger brother Shambhu Raut reached there and all the accused chased him up to some distance when Bunnilal Chaudhary A-l attacked
Shambu with knife ai the door of Ambika Ram. The blow was given on the left side of the chest. On seeing the incident Brahma Deo Raut PW-5 came running to the house
of Ambika Ram. He was given a knife blow on his head by Magister Chaudhary, A-5. On hearing their noise many village people gathered on the scene of occurrence and
then accused persons ran away. Shambhu Raut being seriously injured fell down at the door of Ambika Ram and blood was oozing out oi his injury. He was taken to hospital
on cot for treatment where the doctor declared him dead. A report was lodged by PW-10, Yogendra Raul and a case was registered against all the ten accused. Post-mortem
was conducted by Dr. Vijay Kumar. PW-11. In all 12 prosecution witnesses were examined most of whom were eye- witnesses. The defence of accused persons was that
they were falsely implicated by complainant. Four independent eye-witnesses had turned hostile to (he prosecution. PW-7, Ram Nath Prasad was a neighbour of informant.
He stated that his statement was not recorded by the police during investigation.
1. Rameshwar Pandey v. Slate of Bihar. 2004 Cri. L.J. 1407 (S.C).

2. 2006 Cri. L.J. 3297 (S.C).
The Supreme Court held that there is no dispute that knife injury inflicted on left side of the
chest of deceased by appellant/accused, Bunnilal Chaudhary is single one. No attempt was made by
accused to cause serious injury on any vital part of the body of deceased. The doctor opined that left
lung was penetrated by this injury but he did not opine that the injury was sufficient in the ordinary
course of nature to cause death. There was no motive or intention of Bunnilal to have murdered
Shambhu Raul. The act done by the accused was done with the knowledge that he was likely by
such act to cause death of deceased. Therefore the case falls within third part of Section 299 which
is punishable under Section 304 Part II. The Supreme Court altered the conviction of appellant A-9
from Section 302 to Section 304 Part II.
The accused persons who attacked in group formed an unlawful assembly as they were
armed. Death of deceased was due to injury caused by main accused. No witness has proved that
other accused persons had come on scene of occurrence with an intention to commit murder of
deceased. None of them had given any blow to deceased with weapons they allegedly were carrying
with them. There was no material to show that other accused persons knew that the offence actually
committed was likely to be committed in prosecution of the common object. Therefore, the
Supreme Court held that the conviction of other accused persons under Section 302 read with
Section 149 was not proper.1
[ S. 300
393
Murder and Robbery.—In State of Kamataka v, David Razxtrio,2 the deceased an old lady
who had three children residing abroad was living alone at Stephen Road, Bangalore. A maid
servant Tayamma (PW-5) was working in her house and also in the house of Joyce wife of Holmes
(PW-10). On 20-12-1986, the maid servant served the coffee and then went to work in house of
PW-10. At about 8 p.m. when she was passing near the house of deceased while on way to her
house she saw that electric lights in the house of deceased were burning. She also noticed that front
door was closed while back door was open. She entered the house through back 1 door and came to
the hall where she saw the deceased sitting on a chair with blood all over the body. The deceased
had head injury which was bleeding. The maid servant PW-5 ran out screaming to the house of
Joyce wife of Holmes (PW-10). PW-10 along with PW-7 came to the house of deceased and took
her to the nursing home of Bikram Chand
1. Ihmnytat Chaudhary v. Slate of Bihar. 2006 Cri. L.J. 3297 (S.C).
2. 2002 Cri. L.J. 4127 (S.C).
PW-14. Since she had sustained serious head injury she was sent in an ambulance to Nimhans
hospital for further treatment where she passed away at about midnight. Information was sent to
police by the doctor and investigation started. On 26-12-1986 the Investigating Officer gathered
information that a tape recorder of foreign make was missing from the house. After some days of
this incident the accused persons were arrested in another case of theft of a T.V. Set. Accused No. 2
led the investigating officer and others to a shop where Dilip Ghodke (PW-21) the owner of shop
was asked by A-2 to bring the tape recorder which he had sold to him. Tape was recovered and on
the basis of information given by the accused persons the weapon i.e., an iron rod was also
recovered. Blood stains found on the rod were of the same blood group as of those found on shawl
of deceased.
The accused were charged and tried for offence of murder under section 302 read with
Section 34 and section 392 read with section 34 Indian Penal Code. For murder they were sentenced
to life imprisonment and for offence under section 392 rigorous imprisonment for a period of 5
years. In appeal the High Court set aside the conviction.
The accused pleaded that for-an article of very small value, no one would kill an old lady
particularly when the articles of higher value were not touched.
It was held that the plea was based on suppositions. Robbery can be committed of articles
which are easy to be disposed of. In view of the credible evidence on record, it is not necessary to
fathom as to what was in the mind of the accused or find out why valuable articles were not lifted.
Therefore the acquittal of accused by the High Court based primarily on fact that the value of tape
recorder was meagre was improper. The accused appellants were convicted for the offence of
murder and robbery under sections 302 and 392 of the Indian Penal Code.
jewels before committing murder in field. All the accused were last seen near the field of the
In Krishnamoorthy and Another v. State by Inspector of Police,' the deceased Dhanabagyam

went, to her field on 5-10-1996, PW-2, Mahadevan, a local resident who was doing some work in a
nearby field heard some noise in deceased's field and saw accused Vijayan (A-l) running from that
field. PW-6, Man aval an of the same village while going on a bicycle at about 12.00 noon saw two
persons, each holding a stone running from east to west. At that time he did not know that any
mishap has happened. At about 2.30 p.m., Suresh Kumar son of the deceased went to the field with
food for his mother and not finding her there shouted her name and searched for her but could not
find her. He came back to the house and searched for her. Around 4 to 4.30 p.m. he went back to the
field along with Padma and again searched her mother. Then he found her mother lying dead on her
back in the field. He noticed head injuries and blood oozing out. Her Mangalsutra and ear rings
were missing. The bruise marks caused by snatching Mangalsutra were visible on her neck and her
ear was torn. PW-6, Manavalan stated that he saw four persons on the day of incident near the field
of the deceased and that he knew them as they were from neighbouring village. Witnesses in
neighbouring field who had seen the accused also identified them in test identification parade and
jewels were recovered on information of accused. The Supreme Court held that there was enough
circumstantial evidence that the accused persons robbed the deceased of her I. 2G07 Cri. LJ 1803
(S.C).
deceased where her dead body was found. Ligature marks on her neck and head injuries established
homicidal death. It was also held that recovery made on information proved guilt of the accused.
Witnesses who had seen the accused persons running also identified them. Further non-mention of
S. 300 ]
jewels in F.I.R. would not be material and the plea of false implication in view of jewels not being
of such great value as to lead to murder was also held not tenable. As such the conviction and
sentence under Section 392/300 was held proper.
Rarest of rare cases.—In Shiv Ram v. State of U.P.,1 24 accused persons who were named
in F.I.R. along with 8 to 10 unidentified persons had come to the house of Bhuvaneshwari. All the
accused were armed with deadly weapons like bankas, DBBL, and SBBL guns and country-made
guns and pistols. On reaching near the Kolhoo where Sukhdarshan and Bhubaneshwari were sitting,
the accused persons started abusing them and their family members. They, then demanded that Ram
Gulam and Sheo Pal be called and they would show how both could remain alive. Saying so all the
accused persons chased Sukhdarshan who out of fear entered the house of Shambhudayal and raised
alarm. Kamlesh (since deceased) son of Shambhudayal and Shakuntala after allowing Sukhdarshan
inside the house tried to shut the door but the accused inserted the barrel of the gun through the door
and fired which hit Kamlesh who fell down. Then they entered the house and fired at Sukhdarshan
who fell down in the courtyard. A-2, A-4 and A-13 thereafter caught hold of hand and feet of
Sukhdarshan and A-l severed his head with banka and kept it in a piece of cloth. The assailants then
suiTounded the house of Mahendra Kumar (PW-1), the complainant, opened the door, demolished
the walls and entered into his house. The ladies in the house requested them not to assault any of the
family members. Surendra was also inside and he had a licensed gun but he closed and bolted the
door of his room from inside. Since the door could not be opened A-l told his associates to sprinkle
the diesel on the house and set it on fire. Then they took out the diesel from a drum sprinkled it on
the chhappar and also poured it into the room through a hole where Surendra was hiding and then
lit the fire. They asked Surendra to come out otherwise all his family members would be done to
death. Sandeep a boy aged about 10 years younger brother of the complainant came out and started
abusing the accused persons. A-6 then fired from his gun on Sandeep causing injuries to him and
thereafter A-6 and A-8 lifted Sandeep and threw him into the fire. Sandeep was burnt alive and died
in the said fire. Surendra then came out and tried to run away but he was fired and he fell down in
the kitchen. Thereafter A-2, A-4 and A-13 caught hold of the hands and legs of Surendra and A-l
severed his head with a banka and kept it in the same piece of cloth where the head of Sukhdarshan
was kept. In the meantime Bhuwaneshwari, grandfather of the complainant also returned from
market and the accused caused fire arm injuries to him also. A-2, A-4 and A-13 caught hold of
hands and feet of Bhubneshwari and A-l severed his head also with a banka and kept it in the same
cloth where the other two heads were kept. The accused persons then searched Sheo Pal but he was
not found. The accused persons then stated that Sheo Pal had committed the murder of Chandrika
Passi brother of A-l and therefore, he must be traced. On request of family members of the
complainant the rest of the family was spared to mourn the deaths of their dear ones. A-l took away
the licenced gun of Sukhdarshan. About two and half month back Chandrika Passi was murdered
and his head was also severed. His family members suspected that the murder of Chandrika was
committed by Sheo Pal and Ram Gulam, the relatives of Sukhdarshan. A-4 made a voluntary
discloser statement under section 27 of the Evidence Act and it led to the recovery of two severed
heads of Sukhdarshan and Bhuwaneshwari. A-l also made a statement leading to the recovery of a
gun from a well. It was held that if object of the unlawful assembly was to take revenge upon Ram
Gulam and Sheo Pal whom they suspected to be responsible for murder of Chandrika brother of A-l
1. 1998 Cri. L.J. 76. (S.C).

then after coming to know that they were not available at the house of Bhuwaneshwari and
Surendra (both since deceased) there was no reason for these accused persons to continue to fire on
these victims indiscriminately; to catch hold of the four victims one by one, severe the heads of
three persons and keep them together in a piece of cloth and threw Sandeep into the smouldering
fire. What sin the young boy of 10 years Sandeep had committed so that he also could not have
been spared from the assault. He was totally innocent and was hardly of an age to understand the
rivalry between the parties to take side of one or the other. He was th.ov.'n into the fire and roasted
alive. Injuries sustained by the deceased persons indicated that it could not be the job of handful of
persons. It was preplanned and well thought of design to commit genocide. There is no doubt that
accused persons formed an unlawful assembly and the object of that assembly was not only to take
revenge against Ram Gulam and Sheo Pal but also to take revenge upon the family members of
Bhuwaneshwri as Ram Gulam and Sheo Pal were related to Sukhdarshan (since deceased) and the
accused persons were under the belief that the victims were giving shelter to them. Therefore
conviction of the accused for the offence of murder with the aid of section 149, Indian Penal Code
was held to be proper.
It was further held that the accused persons forming unlawful assembly committed mass
murders in most barbaric manner as their heads were severed and a boy of 10 years was roasted
alive in smouldering fire. The accused persons were under the belief that family members of
deceased were giving protection to suspects who had earlier murdered brother of main accused by
[ S. 300
395
severing his head, hence they killed the deceased in the same manner by way of revenge. The case
falls within ambit of rarest of rare cases taking into account the manner of commission of crime, its
motive and magnitude of crime and the award of death sentence to A-l, A-2, A-4, A-5, A-8, and A-
13 was proper. The rest of the accused persons who were awarded life imprisonment, their
conviction was upheld. The death sentence awarded to A-6 was converted into life imprisonment.1
It was held in Kulwinder Singh v. State of Punjab, that murder committed in fit of passion
does not fall in category of rarest of rare case. Therefore death sentence is not justified and it should
be reduced to life imprisonment.
In Mahendra Nath Das v. State of Assam? one Harkant Das (deceased) was taking tea at a
stall. The appellant arrived at the scene with a sword like weapon and with it dealt blows to Harkant
Das who fell down on the ground. The appellant amputated the right hand and thereafter severed the
head of Harkant Das (deceased). With the head of the deceased in one hand and blood dripping
1. Shiv Ram v. State, 1998 Cri. L.J. 76 (S.C).
2. 2007 IV Cri. L.J. 4290 (S.C).
3. A.I.R. 1999 S.C. 1926.
weapon in the other hand, he moved towards the police outpost. The occurrence was reported to
police by PW-1 Ratan Rai and was witnessed by persons standing there, of whom PW-3 Kalu Das,
PW-5 Gaya Prasad and PW-8 Gaurishankar Thakur were examined. He was convicted for offence
under section 302, Indian Penal Code by the trial court and was awarded death sentence. It was held
by the Supreme Court that the murder committed was extremely gruesome, heinous, cold blooded
and cruel. The manner in which murder was committed was atrocious and shocking. After giving
blowc with a sword to the deceased when he fell down the appellant amputated his hand, severed his
head from the body carried it through the road to police station by holding it in one hand and the
blood dripping weapon on the other hand. It all depicts extreme depravity of the appellant. The
mitigating circumstances pointed out by the learned counsel, though not stated by appellant himself,
are that he is an young man of 33 years and having three unmarried sisters and aged parents and he
was not well at that time. These circumstances when weighed against the aggravating circumstances
leave no doubt that this case falls in the category of rarest of the rare cases justifying extreme
sentence of death.
In Jai Kumar v. State of M.P.,1 the accused aged about 22 years entered the house and bolted
from outside the mother's room and thereafter removed certain bricks from the wall and choukhat
and entered the room where the deceased sister-in-law in advanced stage of pregnancy was sleeping
with her 8 years' daughter. The mother stated that the accused attempted to commit rape and when
resisted by the sister-in-law he committed the offence. When asked about the mother's statement the
accused answered that all the children of sister-in-law were illegitimate and her visit to her father's
place and affinity with friends in that area had brought about this situation of having two children.
The accused committed the murder of his sister-in-law by porsul blows and then axe blows on her
neck severing her head from the body. He also took away her 8 years old daughter and killed her in
a jungle by axe blows by way of offering to Mahuva Maharaj 'and buried her in the sand covered
with stones. Thereafter the accused came back home and carried the body of deceased sister-in-law
tied in a cloth to the jungle and hung the head being tied on a branch with the hairs and put the body
on the trunk of tree. It was held that the fact that the age of the accused was 22 years cannot be said
to be a mitigating factor. The accused is 22 years of age and the victim was aged 30 years and in
advance stage of pregnancy, the other victim was an innocent girl of 8 years, the murders were cold
blooded while two victims were in helpless and hapless situation. No amount of perversity would
prompt a person to break open the door by removing the bricks from the wall and commit such
gruesome murders on failure to satisfy the lust. There cannot be any mitigating circumstance on
account of such a ghastly act. The evidence of the mother who watched the incident from the creeks
of the window was material evidence. She had also given evidence about the bad characteristics and
the reputation of the accused in the locality. Thus it cannot be said that there are some mitigating
circumstances and there is likelihood of the accused being reformed or rehabilitated. The murder
was cold blooded and brutal without any provocation and it falls in the category of rarest of rare
cases justifying death penaltly. There are no extenuating or mitigating circumstances.
In Ashok Kumar Pandey v. State of Delhi,2 Daya Kant Pandey (PW-2)
1. A.I.R. 1999 S.C. 1860.
2. 2002 Cri. L.J. 1844 (S.C).
396 [ S. 300
INDIAN PENAL CODE
father-in-law of appellant/accused had gone to appellant's house to know about the welfare of his
daughter. The appellant who was an employee in American embassy returned home at about 7 p.m.
The appellant, who was in the habit of consuming liquor and at times assaulted his wife Neelam,
took liquor at dinner. After dinner, Daya Kant Pandey PW-2 and father of appellant DW. 1 went to
the terrace for sleeping. After sometime at about 9.30 p.m. PW-2 heard some noise from downstair.
He heard cries of his daughter whereupon he immediately rushed down and found that the accused
was inflicting stab wounds on his daughter Neelam with a knife while she was bleeding profusely.
He also saw his grand-daughter, Annu lying injured on ground bleeding. The appellant came
towards PW-2 in a state of anger with knife in his hand and PW-2 retracted his steps. At this stage,
appellant ran downstairs. Appellant then raised alarm and the landlord and others gathered there.
PW-2 and DW-1 took the injured Neelam and Annu to hospital where the doctor declared them
dead.
It was held by the^ Supreme Court that the evidence of solitary eye-witness who was father
and grand-father of deceased was found consistent, reliable and corroborated by other evidence. His
presence on place of occurrence was proved. The fact that he rushed to the hospital with injured
instead of going to police station or that he did not try to rescue them when he saw accused
inflicting stab injuries indiscriminately was held to be natural human conduct and no adverse
inference could be drawn from it. Merely because he was related to deceased his evidence could not
be rejected. In facts and circumstances of case it was not rarest of rare case and extreme penalty of
death sentence was not called for and therefore the accused was sentenced for life imprisonment.
In Om Prakash v. State of Haryana,1 on 28th June, 1990 Chater Singh (PW-4) along with his
wife deceased Smt. Daya Kaur was sleeping at his house and his brother Satbir Singh, his wife Smt.
Kamlesh and mother Smt. Khazani (deceased) were sleeping at the house of Satbir, while inside the
house of Satbir, Satbir and two sons of Chater Singh, Aman Kumar, and Mohinder and one
Surender son of Hawa Singh (PW-5) were sleeping. Around 4.00 a.m Chater Singh saw torch light
emanating from his window of the house, upon which he and his wife got up and saw Parmanand
accused holding a torch and Ajit Singh accused (since dead) standing by his side holding a gun. Ajit
Singh fired a shot from his gun, which hit Smt. Daya Kaur who fell down and died. He raised an
alarm whereafter Ajit Singh accused, entered his house from rear door and fired at Chater Singh
from his gun which hit the Fingers of his right hand. Chater Singh caught hold the barrel of the gun
but Ajit Singh got it freed and handed it over to Om Prakash accused present in the courtyard of the
house. One other person not known to Chater Singh was also present in the street. Thereafter all the
four acccused reached the house of Satbir followed by Chater Singh and Hawa Singh and then
accused Om Prakash fired from his gun hitting Smt. Kamlesh wife of Satbir and Smt. Khazani who
succumbed to the injuries. Thereafter the asailants headed towards the house of Satbir where Chater
Singh and. Hawa Singh had already reached. At this place Om Prakash fired indiscriminately from
the gun and shot dead Satbir, Mohinder and Aman Kumar son of Chater Singh and Surendra son of
Hawa Singh (PW-5). Thus after committing the gruesome murder of seven persons accused
Parmanand made out that they had taken the revenge regarding the plot in dispute. All the accused
fled away thereafter with their weapons. Leaving Hawa Singh at the spot Chater Singh went to the
police station and lodged the F.I.R at 7.30 a.m. The Sessions Court convicted the accused Om
Prakash and Parmanand under section 302/307/452/506 read with section 34, IP. Code. Om Prakash
was awarded death sentence as the attempt was to wipe out the entire family of Mange Ram and
Parmanand was awarded life imprisonment. Indiscriminate firing was resorted to on defenceless
sleeping victims to take vengeance over the dispute of a plot. A self loading rifle which was
1. 1999 Cri. L.J. 2044. (S.C).
surrendered by the accused Om Prakash with B.S.F. authorities was used to wreck personal
vendetta. His case falls in the rarest of the rare cases. The conviction was confirmed by the High
Court as well. But the Supreme Court refused to treat the case as rarest of the rare category because
the Court has not appreciated the reasons which drove the appellant to this dastardly act. The
mitigating factors are that the appellant was a member of the Border Security Force. The murder
related to a dispute pertaining to a plot of land (home) with the complainant party. The murder was
committed with premeditation and in a thoughtout manner. It was held by the Supreme Court that
even though it is a gruesome act on the part of the accused in killing seven members of a family in
pre-planned manner yet it is a result of human mind going astray because of constant harassment of
the family members of the accused. It could be termed as a case of retribution or act for taking
revenge. No doubt it would not be a justifiable act at all but the accused was feeling morally
justifiable on his part. Hence it would be difficult to term it as the "rarest of the rare" cases. The
appellant had written a number of letters on different dates to different authorities seeking remedy
against harassment to his parents and family by the complainant party. The letters were on record.
The first letter was written on 22nd March, 1990 to the Deputy Commissioner, Rohtak requesting
for help as the other party was giving open threat that if they would not hand over possession of the
plot they could be killed. He had gone on leave to his village in February, 1990. After his return to
397 [ S. 300
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duty his family was attacked and family members received grievous injuries but his father and
brother were locked up at police station. In his letter to the Commissioner he had stated that he may
lose balance of his mind. The next application was written on 2-4-1990 to the Superintendent of
Police, Rohtak to take action as the complainant party was harrassing his aged father and family
members but all in vain. One more application was written by him on 20-3-1990 to S.P., Rohtak
stating all the details of harrasment by Chater Singh, Hawa Singh and others. Again an application
was written to S.P., Rohtak on 15-5-1990 regarding the incident of causing grievous injuries to
female members of appellants family. Last letter was written on 21st June, 1990 to his brother
Parmanand. It is clear from this letter that the accused was drawing concrete action against the
complainant party. Giving reference to these letters Supreme Court held that this is not a case
committed because of lust for wealth or women, that is to say murders are neither for money such
as extortion, docdity, robbery nor even for lust or rape, it is not an act of anti-social element,
kidnapping, trafficking in minor girls or dealing in dangerous drugs which affects the entire moral
fibre of the society and kills aumber of persons, nor it is a crime committed for power or political
ambition or part of organised criminal activities. It is a crime committed by the accused who had a
cause to feel aggrieved for injustice meted to his family members at the hand of the other party
who according to him were strong enough physically as well as economically and having influence
with authority which was required io protect him and his family. The bitterness increased to a
boiling point and because of the agony suffered by him and his family members at the hands of the
other party and for not getting protection from the police officers concerned or total inaction despite
repeated written prayers goaded or compelled the accused to take law into his own hands which
culminated in gruesome murders, may be his mind got derailed of the track and went astray or
beyond control because of extreme mental disturbance for the constant harassment and disputes.
Further considering the facts and circumstances, it cannot be said that he would be a menace to the
snJety, there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely
to continue criminal acts of violence as would constitute a continuing threat to the society. He was
working in B.S.F as a disciplined member of the Armed Forces aged about 23 years at the relevant
time, having no criminal antecedents. In the result this case cannot be treated as one of the rarest of
rare cases where lesser sentence of imprisonment for life would not at all be adequate. Hence the
sentence of death penalty was altered by awarding the sentence of imprisonment for life to the
accused Om Prakash.1
In State of Maharashtra v. Bharat Fakira Dhiwar,2 the deceased girl aged about 3 years was
complained to be missing by her parents. Next day her dead body was found in a sugar cane field in
the village. In the opinion of the doctor the girl was raped before being killed. Two little boys on
learning the incident went to the house of grand-mother of deceased and informed that on 23rd
October 1995, the day the deceased was alleged to be missing, while they were burning crackers on
the road. They had seen the accused carrying a bag on his shoulder and blood was dripping from the
bag. On receipt of this information grand-mother of deceased first went to the house of accused but
not finding him there went to the police station and lodged a complaint which was treated as the
First Information Report. The child witnesses deposed that they saw the accused going towards the
canal and after sometime they saw him coming back and at that time his shirt was stained with
blood and on seeing them the accused took out his shirt and put in his pocket. The trial court which
had opportunity of watching demeanour and conduct of said witnesses found them to be truthful
and witnesses also stood the test of cross-examination and their evidence was also supported by
other circumstances like recovery of articles stained with blood of deceased at the instance of
accused proved by prosecution. The trial court found the accused guilty and awarded death sentence
but the High Court ignoring those circumstances and disbelieving the evidence of child witnesses
acquitted the accused. The Supreme Court held that acquittal of accused by High Court was not
proper and therefore restored the conviction of accused recorded by trial court but altered the
sentence of death into life imprisonment as the case does not fall into rarest of the rare category, but
sentences on all other counts were unaltered.
In Nirmal Singh v. State of Haryana,3 Tale Ram had three daughters—Punam alias Bimla,
Nirmala and Neelam and two sons named Tinue and Parveen. Wife of Tale Ram was Smt. Krishna.
The two accused Dharampal and Nirmal were distantly related to Tale Ram. The accused Dhararn
Pal was charged in earlier case for committing rape on Punam. In the said proceeding he had given
a threat that if any body gives evidence in the proceeding then he will not be spared.
Notwithstanding the aforesaid threat the victim deposed in the Court and ultimately Dharampal was
convicted. Accused preferred appeal against conviction. While he was released on bail Punam and
1. Om Prakash v. State of Hayana, 1999 Cri. L.J. 2044 (S.C).
2. 2002 Cri. L.J. 218 (S.C).
3. 1999 Cri. L.J. 1836 (S.C).
her husband were staying on the fateful day with Tale Ram. After taking their meals both went on
398 [ S. 300
INDIAN PENAL CODE
the roof top of the house and slept there. At about 3.30 a.m. hearing some voice from the courtyard
where Punam's father and all other family members had taken rest, Punam and her husband got up
and saw accused Dharampal giving blows with kulhari and his brother Nirmal with Burchi on the
family members. Punam and her husband were so terrified that they did not raise any alarm and
after the two accused persons left, both of them came down and found that all the five family
members, namely, father Tale Ram, mother Krishna, sister Neelam and brothers Praveen and Tinue
are dead. Punam approached the neighbours but no one came forward and she became unconscious.
When she regained consciousness about 10.00 am then she went to the village Sarpanch and
accompanied by him went to the police station and lodged F.I.R. The prosecution examined 11
witnesses including Punam (PW-8) and her husband Rajkumar (PW-9) and two Doctors (PW-4)
and (PW-5). The Sessions Judge relying upon the evidence of two eye-witnesses PW-8 and PW-9
came to the conclusion that they are truthful witnesses and their version can be safely relied upon.
Taking into consideration the manner in which the ghastly murder of five members of a family was
committed the Sessions Judge held that the case is rarest of the rare and as such awarded death
penalty to both the accused. In appeal the High Court confirmed the death sentence. It was held by
the Supreme Court that having scrutinised the evidence of two eye-witnesses PW-8 and PW-9 with
utmost care we have found nothing in their cross-examination for which either their presence can be
doubted or their evidence can be impeached in any manner. Both the witnesses have given a vivid
account of the entire incident which they had seen from the roof top. The assailants are not
unknown to them, more particularly to Punam as Dhram Pal had committed rape on Punam and had
been convicted on the basis of her evidence. It was further held that the act of accused Dharampal is
an act of a depraved mind and is of most brutal and heinous in nature and therefore it was held to be
a rarest of the rare case for awarding the extreme penalty of death sentence. But as far the case of
appellant Nirmal is concerned he has no past criminal antecedents. The only aggravating
circumstance is that he had come with his brother and has given 3 blows on deceased Krishna only 1
after Dharampal chased Krishna and gave a kulhari blow on her neck. It is, no doubt, true that the
presence of Nirmal at the scene of occurence with a burchi in his hand has emboldened Dharampal
to take a drastic action of causing murder of five persons. But the fact that Nirmal has not assaulted
any other person except Krishna the case of Nirmal cannot be said to be the rarest of the rare
attracting death penalty. Therefore his conviction under section 302/34, IP. Code awarding death
penalty was commuted into life imprisonment.1
In Ram Anup Singh and others v. State of Bihar,2 the appellant Ram Anup Singh and Madan
Singh were brothers. Madan had no son. He gifted his landed property to his daughter Sita Devi and
son-in-law, Shambhu Saran Dubey. The two brothers were having strained relations for the last
more than 10 years. Land dispute between them was resolved by civil litigation and thereafter they
were having cordial relationship. But, it appears that the appellant was not satisfied and several
times Panchayats were held to resolve the dispute. Even on the date
1. 1999 Cri. L.J. 1S36 (S.C)
2. 2002 Cri. L.J. 3927 (S.C).
of occurrence a panchayat was to be held and some of the panchayatis who had arrived were even
eye-witnesses of the incident. The daughter and son-in-law of Madan Singh lived with him and
looked after Madan Singh and his wife and also cultivated the lands. The incident occurred at about
6.30 a.m. and the police after hearing a rumour that some persons have been killed in village
Dilman Chapra, the investigating officer visited the village and recorded the report made by father
of Shambhu Saran Dubey at about 8.15 a.m. Since a Panchayat was to be held on the date of
occurrence Babu Nand Dubey, father of Shambhu Saran Dubey alongwith his son and some others
had come to village of Dilman Chapra at about 6 a.m. At about 6.30 a.m. when they were near a
Kirana shop of Bhageswar Raut, Babban Singh and Lallan Singh armed with country made pistols
and Ram Anup Singh armed with his licensed gun came near the Kirana shop. Ram Anup Singh
fired his gun in the air as a result of which persons nearby got scared and concealed themselves here
and there. In the meantime Shambhu Saran came on hearing the gun shot. On seeing him one of the
accused caught him and started assaulting him. Ram Anup Singh exhorted his sons to finish the
entire family. Upon this Babban Singh felled Shambhu Saran on the ground and fired at his chest
causing injury resulting in his instant death. The accused then proceeded towards the house of
Madan Singh. Sita Devi, the daughter-in-law of informant came out of the house. Lallan Singh
caught hold of her and fired at her head as a result of which she also died on the spot. Thereafter
Madan Singh and his wife Shivji Devi came out of their house. Babban Singh fired at Madan Singh
who fell down and died. Lallan Singh fired at Shivji Devi and she also died. Ram Anup Singh was
sentenced to death under section 302/34 and section 109 and the other two accused were sentenced
to death under section 302 by the trial court. The High Court refused to confirm death sentence of
Ram Anup Singh and sentenced him to life imprisonment because he did not fire even though he
had a gun. On appeal it was held by the Supreme Court that in view of the facts and evidence the
motivation of appellants to gun down entire family of deceased was not understandable. Past deeds
399 [ S. 300
INDIAN PENAL CODE
also do not suggest that appellants are menace to society. Instead the appellants belong to middle
class farmer family. Therefore, the case does not fall in rarest of the rare category so as to award
death sentence and hence it was converted into life imprisonment.
In Dharmendra Singh v. State of Gujarat} the appellant accused asked his wife to deliver the
milk at dairy. When she left there was none else at the house except the accused with two children
asleep. On her return from dairy she raised alarm seeing the accused assaulting the children with
sharp-edged weapon. Thereupon her husband left the house from the other door. His father, brother
and neighbours arrived. She told them about the incident and the two sons died as a result of injury
received by them. The accused was labouring under the strain suspecting character of his wife. His
wife admitted in her statement in court that quite often there has been quarrel between the two on
that point. A suggestion has been made to wife, eye witness in her cross-examination that the
appellant had been telling her that their sons were not of him but the wife denied it. It is true that
there was no immediate cause before the commission of offence, yet the fact remains that rightly or
wrongly such a painful belief was being entertained by the appellant since long and there had been
quarrels on that count between the two. The father of the accused/appellant though resides in the
same
1. 2002 Cri. L.J. 2631 (S.C).

S. 300 ] 400
house and his brother was residing separately there came on hearing the alarm but none of the two lodged a
report in police. The mother of deceased children herself lodged F.I.R. No conclusion could be drawn from
statement of witnesses that accused was suffering from any mental illness. Prescription of treatment given to
him in hospital was not brought on record. The doctor who may have treated him was also not produced in
support of mental illness of accused. Since the accused/appellant suspected the character of his wife and there
had been quarrels also sometimes, therefore, the Supreme Court held that obviously, the appellant/accused
would have been brooding under that idea which perhaps he could not contain any more. The weapons used
were common in the house and it was picked up by the appellant and the offence was not committed for lust of
power or otherwise or with a view to grab any property nor in pursuance of any organised criminal or anti-social
activity. He also had no previous criminal record and therefore, his case does not fall in the category of 'rarest of
the rare' cases. Therefore, death sentence was commuted to that of life imprisonment. In the circumstances the
conviction of the accused for murder was proper.
In Suresh v. State of U.P.,1 on the night of 5-10-1996 when Ramesh and his wife Ganga Devi were
sleeping in his house with their four children, his brother Suresh and Ramji brother-in-law of Suresh cut three
sleeping children aged 1 year, 3 years and 9 years with axe and chopper. They also cut and killed Ramesh and
his wife Ganga Devi. The only surviving member was a 7 year old male child Jitendra son of Ramesh who too
had suffered three incised wounds on the scapular region. He narrated the entire incident before the trial court.
He also said that his aunt Pavitri Devi clutched the tuft of his mother's hair and yelled like a demoness in thirst
for the blood of entire family. But the other two witnesses did not attribute any overt act to Pavitri Devi except
that she too was present near the scene of occurrence. All the three accused were convicted by the trial court but
Pavitri Devi was acquitted by the High Court. The other two accused were awarded death penalty. Land dispute
between the brothers had resulted in the ghastly murder of the entire family except one. Besides the sole
surviving 7 years old child the other two witnesses were the uncle of both the deceased and the accused and a
neighbour. It was held by die Supreme Court that the accused and his brother-in-law caused death of all family
members of his brother except one child. In view of the reliable evidence of the uncle of the accused and the
deceased and by the neighbour who supported the version of sole survivor of family, a seven year child, the case
squarely falls within exception 'rarest of rare cases'. Therefore imposition of death sentence on both accused
requires no interference.
In Shivu v. R.G. High Court of Karnataka,1 the Jtwo young accused persons aged about 20 and 22 years
attempted twice to rape village girls. On complaint village Panchayat was held and both were admonished.
Emboldened by escape-from punishment in those two incidents they committed rape on a young girl of hardly
18 years and to avoid detection committed heinous and brutal act of her murder.
It was held by the Supreme Court that under the circumstances the case falls in rarest of the rare case and
as such death sentence imposed by Courts below was proper.
In Prajeet Kumar Singh v. State of Bihar,3 accused was living in the house of informant. He was in
arrears of rent and boarding charges. He killed three children and injured one. Informant and his wife who
reached room of incident on hearing commotion were also injured. Accused was living with family of deceased
for years. He committed murder of children without any provocation. Other members who came to spot on
hearing noise were also seriously injured by accused. Multiple injuries were caused to victims when they were
running here and there to save themselves. It was held that all these indicate brutality in manner of execution
and thus act of accused was diabolic of superlative degree in conception and cruel in execution. This indicates
mindset whichcannot be said to be amenable for any reformation. Therefore, the case was held to fall
in rarest of rare category deserving imposition of death sentence.
1. 2001 Cri. L.J. 1462
(S.C).
2. 2007 Cri. L.J. 1806
(S.C).In Sushil Munnu v. State of Jharkhand,10 one Somlal Besra in the evening of 11th December,
1996 found his son Chirku Besra (deceased) aged about 9 years missing from house. He searched
for him making inquiries from various persons. Later information surfaced that the boy was
sacrificed before Goddess Kali by the appellant. Two other persons, his wife and mother were also
said to be parties to the gruesome killing. The prosecution case centred round extra judicial
confession made by accused before a large number of persons, recovery of dead body at the behest
of the accused appellant and evidence of a witness who saw the accused carrying a bag on a bicycle
which was thrown to a pond and after throwing the bag to the pond the accused returning by
bicycle. The severed head was recovered from the bag thrown to the pond. All the three accused
persons were tried for offences punishable under Sections 302 and 201 of the Indian Penal Code.
After trial the Court found the appellant guilty for both offences and was sentenced to death for
committing murder and seven years' rigorous imprisonment for the offence under Section 201 of
I.P.C. and the other co-accused were given benefit of doubt and acquitted. The High Court
confirmed the death sentence holding that the murder was gruesome and death sentence was most
appropriate. In appeal the Supreme Court held that this was an exemplary case of a child of 9 years
sacrificed before deity by appellant for his own prosperity. The fact that appellant was having his
own child of same age at the time of occurrence shows that he was not possessed of the basic
humanness, completely lacked psycle of mind set which can be amenable for any reformation. The
grotesque and revolting manner in which helpless child's head was severed amplified brutality of act
committed by the appellant. It was also pointed out that the imploring face and voice of innocent
child raised no trace of kindness in heart of appellant. The non-challant way in which he carried the
severed head in a gunny bag and threw it in the pond unerringly shows that the act was diabolic of
most superlative degree in conception and cruel in execution. Further superstition cannot and does
102004 Cri. L.J. 658 (S.C).

not provide justification for any killing, much less a planned and deliberate one. The accused was
facing trial of sacrificing his own brother, therefore under the circumstances the case falls in the
category of rarest of the rare case and death sentence imposed calls for no interference. In this case
the test to determine rarest of rare case was also indicated which were very much similar to those
indicated in Machhi Singh v. State of Punjab?
In State of U.P. v. Shri Krishan? it was alleged that when deceased alongwith his wife was
waiting for bus to go to Shahjahanpur for medical treatment of his wife, accused persons suddenly
appeared and attacked deceased with knives resulting into his death. His wife immediately filed a
detailed first information report about the occurrence. The investigation officer recorded her
statement under Section 161 of Criminal Procedure Code (Cr. PC.) after 13 days and the reason for
delay as given by Investigation officer was that she was in a disturbed state of mind and could not
give her statement. Pw-5, police sub-Inspector, reached the place of occurrence after about an hour
of the incident at about 10 a.m. and performing inquest report on the dead body sent the same for
post-mortem examination. The respondent and two others were tried and convicted under Section
302/34 of Indian Penal Code. The prosecution examined three eye- witness, namely Pw-1 wife of
deceased, Pw-2, Suraj Prakash a tea-stall owner and Pw-3, Ram Swaroop, a tailor, both having their
shop near the place of occurrence. Pw-2 and Pw-3 turned hostile. No test identification parade was
held. The High Court in appeal acquitted the accused therefore the State preferred an appeal to the
Supreme Court. Dismissing the appeal the Supreme Court held that the first information report
lodged by Pw-1, the wife of deceased, was quite detailed and if the F.I.R. was really lodged by Pw-
1 which was doubted by the High Court, it cannot be said that she was in such a disturbed state of
mind that she could not give her statement under Section 161 of Cr. P.C. for about 13 days. Further
the entire inquest report was prepared in one ink while the name of the informant in the inquest
report was by a different ink which created a suspicion that when the inquest report was prepared,
the FIR had not come into existence and it had not been decided as to who would be made the, first
2. (1983) Cri. L.J. 1457 (S.C).
3. 2005 Cri. L.J. 892 (S.C).
informant. Later the name of informant was inserted in the inquest report. This gives rise to a great
doubt as to whether the F.I.R. was lodged by the person named therein. It was also observed that the
prosecution could not produce evidence to show that she was waiting for bus to go to Shahjahanpur.
This creates doubt about her presence at the place of occurrence as she could not even disclose the
name of the doctor who was treating her at Shahjahanpur. No test identification parade was held
even though an order was passed to that effect. Failure to hold test identification parade in such
circumstances creates a serious doubt about the presence of Pw-1 on the place of occurrence and
truthfulness of the prosecution case. Therefore, there was no justification to interfere with the order
of acquittal passed by the High Court.
In Mohd. Chaman v. State ( N .C.T. of Delhi),' the appellant aged about 30 years was charged
for committing rape and murder of a girl aged about one and half years. Bindu shah PW-4 father of
the deceased girl was living with his wife •■>d two daughters Soni and Ritu in Gandhi Nagar,
Delhi. He was running a tailoring factory near his house. The appellant was residing in the same
house in a room adjacent to the room of Bindu Shah. On 10-4-1995 at about 7.30 p.m. Bindu Shah
was in his factory and his wife had gone for marketing leaving her both the daughter in her house.
On return Smt. Lalita wife of Bindu Shah did not find Ritu in the house. After a search for the girl
in the locality Smt. Lalita sent her elder daughter to call her brother Vidya Nand Sagar (PW-7).
Vidya Nand Sagar accompanied by Shankar reached the house of Smt. Lalita and made a search of
Ritu but did not find her. Lalita found the room of the appellant half open and on peeping into it saw
her daughter Ritu lying on the floor and the appellant present in the room. On seeing Smt. Lalita the
appellant picked up Ritu from the floor in her unconscious state and handed her over to Smt. Lalita.
At that time the mother found that Ritu was without undergarment and was wearing only a frock.
She observed several bleeding teeth bite marks on cheek and other parts of the body of Ritu. On her
quarry about the condition of Ritu the appellant told her to go away silently otherwise she would
also meet the same fate and the police could do nothing against him. The girl was taken to a doctor
and then to hospital where she was declared brought dead by the doctor. In the mean time some
people who had collected at the place of occurrence kept the appellant under close guard till the
police arrived. In the post-mortem report the injuries to the girl were testified and haemorrhagic
shock consequent to liver injury was shown as cause of death. The accused was awarded death
sentence by the courts below. It was held by the Supreme Court that conduct of accused reveals
dirty and perverted mind of human being who has no control over his carnal desires. However
balancing aggravative and mitigating circumstances emerging from evidence on record it was not a
rarest of rare cast and the accused was not such a dangerous person that to spare his life will
endanger the community. It was further observed that humanist approach should be taken in matter
of awarding punishment. Therefore sentence of death imposed was modified to rigorous
imprisonment for life.
S. 300 ] 402
In Om Prakash v. State of Uttaranchal.2 the accused appellant was employed as a domestic servant
1. 2001 Cri. L.J. 725 (S.C).
2. 2003 Cri. L.J. 483 (S.C).
in the house of Shyam Lai Khanna and was living in the servants quarter of his bungalow. He was
employed about six months prior to the date of occurrence. During this period he proved to be
unreliable as he had stolen some money. He had also killed a pet sparrow of Mrs. Khanna, namely
Rama Khanna. Therefore, they had decided to terminate his services with effect from 1st December
1994 and the accused was informed about it a day earlier to the date of incident. On the fateful day
the accused served bed tea at about 8 a.m. to Mr. Khanna, his wife and his wife's sister. His son
Sant was at that time sleeping in his bed room. After tea Mr. Khanna went for a morning walk and
his wife and her sister went into the bathrooms adjacent to each other. When Mrs. Khanna (PW-1)
wanted to come out of the bathroom she found it bolted from outside. From the window of her
bathroom she communicated to her sister to open the bolt. As her sister had just come out of the
bathroom PW-1 heard her cries for about five minutes and then there was pin drop silence. Then the
accused himself opened the bathroom of PW-1 but before fully opening the door she noticed that
accused was holding chilly powder in one hand and sword of her husband in another. The accused
threw chilly powder on her and attacked with sword. Luckily the sword hit her bangle and her left
wrist was fractured and the bangle got dented. She could any how manage to bolt the door from
inside. In the 'mean time her husband Mr. S.L. Khanna also returned from morning walk and
hearing the panicky voice of his wife he came to bedroom to which the bathroom was attached. She
pleaded her husband to open the door as Raja (the accused) was upto some mischief. Her husband
replied that Raja was not there but immediately thereafter she heard the cries of her husband as the
accused started attacking Mr. Khanna also. She heard her husband saying, "why are you doing this?
we have not harmed you. After sometime the cries of Mr. Khanna also subsided. Thereafter the
accused tried to injure Mrs. Khanna with a danda from window of the bathroom. In the mean time
her husband gathered strength and opened the door of bathroom from outside. Then Mrs. Khanna
(PW-1) ran towards main gate of the house and closed it from inside as the accused was standing
outside it. The accused then started banging the main door repeatedly. When Mrs. Khanna (PW-1)
came inside the bed room she found that her husband was lying injured with profuse bleeding. She
noticed the injuries on his neck and chilly power smeared on his face. Then she rushed to the bed
room of her son and found him dead in a pool of blood with his neck severed from body. A stone
stab was found on his legs. On entry into the room of her sister, she was also found lying dead and
chilly power was spilled all over the room. On opening the window of drawing room she noticed
jamadar Raju PW-4 approaching the house. She cried out and asked him to open the main gate and
told him that her servant Raja had murdered the inmates of the house. Then neighbours gathered
and took her and her injured husband Brigadier S.L. Khanna to ONGC hospital, where Mr. Khanna
was declared dead and Mrs. Khanna PW-1 was given first aid and then dropped back at his house.
A report was made to police at about 10.30 a.m. Police came, took photographs of rooms and sent
dead bodies for post mortem. PW-1 was again taken to hospital where X-ray of her wrist was taken
and she was treated for her fracture.
It was held that the facts and circumstances of the case show that crime had been cleverly
planned and committed in brutal and diabolical manner. There was attempt to kill even the fourth
surviving member of the family. Their son was killed in such a cruel manner that his neck was
severed from his body.
Multiple injuries were inflicted on the vital parts of other victims. The earlier act of the accused
killing a pet bird and piercing feathers in the nose of hen reveals his cruel and savage behaviour.
Thus, crime committed by the accused shocks the conscience of the society at large and of the
Court. It leaves an irresistible feeling that the accused is beyond reformation though young and is a
menace to the society. All essential relevant details of incident were given in F.I.R. Witness who
dictated FIR gave a few more details in her evidence which cannot be doubted on the ground that
there is improvement. FIR need not contain an exhaustive account of incident. The case falls in
rarest of the rare category and death sentence would be the most appropriate punishment for
conviction for offence of murder.
In Hukamchand v. State of Haryana,1 on 6th May 1989 at about 7 a.m. PW-12 Kishorilal son
of Devi Sahai and his brother Uday Chand went to the field of Chaturbhuj where a wheat thrasher
had been installed for thrashing wheat. A cart belonging to Kishori Lai was standing nearby from
where Mani Ram and Tuhia alias Varinder picked up a khes and started filling the fodder in the
tractor trolley by laying the fodder on khes. The complainant side asked them to return the khes and
there was some altercation between the two groups. While altercation was on Mani Ram asked his
son Tuhia to inform his uncle. In pursuance of this call Hukamchand arrived armed with pharsa and
he inflicted a pharsa blow on the head of Uday Chand who fell down. Then Mani Ram gave a lathi
blow on the head of Kishori Lai. Tuhia son of Mani Ram inflicted a ballam blow on the right
shoulder of Kishori Lai. Dayawati wife of Hukamchand also gave a ballam blow to Kishorilal. On
listening the hue and cry some other persons also arrived on the spot and Uday Chand was removed
to the Government Hospital, Faridabad and then to Safdarjung Hospital in New Delhi on 9-5-1989.
It was held that the accused was liable for the offence of murder because accused who was
called to the place of occurrence came armed with a pharsa, a deadly weapon and hit the deceased
on his head by that weapon. The blow was severe and sufficient to cause death. Injury suffered by
deceased was not a chance injury while accused and deceased grappled with each other. The fact
that accused went armed to the place of occurrence indicates intent to use it and cause death. The
accused party pleaded in defence that complainant party was aggressor but no serious injury was
shown to be received by accused party. The plea that deceased received the fatal blow from his own
arm was not found acceptable by the Court. In view of these facts and circumstances the theory of
self defence by accused was rejected and the offence was held murder and not culpable homicide
not amounting to murder.
In State of U.P. v. Satish,2 on 16-8-2001 the victim a girl of less than 6 years had gone to
school but did not return home at the usual time. On the next day in the morning her dead body was
found in a sugarcane field around 6 a.m. She was lying dead and blood was oozing from her private
parts and there were marks of pressing on her neck. Report was lodged and post-mortem was
conducted around 2 p.m. on 17-8-2001. The doctor opined that death occurred within preceding 24
hours. Three persons claimed to have seen the accused nearby the place of occurrence between 1.00
p.m. and 2 p.m. on the date of occurrence. Two of them namely Sanjecv Tyagi (Pw-3) and
Kulbhusan (Pw-5) claimed to have seen the deceased being carried on a bicycle by the accused who
1. 2003 Cri. L.J. 57 (S.C).
2. 2004 Cri. L.J. 1428 (S.C).
was taking the bicycle with the deceased sitting on the handle thereof. Anil (Pw-2) stated that he
had seen the accused in perplexed state around 2.00 p.m. near the place where the dead body of
victim was found. The undergarments of the victim and underwear of accused was also recovered
on the disclosure of the accused. The recovery was treated under section 27 of the Evidence Act.
The Trial Court convicted the accused under sections 363, 366, 376(2), 302 and 201 of the Indian
Penal Code and the crime was treated in the rarest of the rare category justifying death sentence.
S. 300 ] 404
In appeal the High Court acquitted the accused on the ground that the case rested on
circumstantial evidence, secondly the examination of Pws 3 and 5 after a long passage of time
rendered their version unacceptable and no explanation was offered for delay by prosecution.
Thirdly, presence of accused nearby the place from where dead body was recovered may be a
suspicious circumstance but was not determinative. The state preferred appeal and the Supreme
Court allowing the appeal held that acquittal of the accused on the ground of non-mentioning the
name of accused in F.I.R., delay in examination of witnesses and that presence of accused nearby
place where dead body was recovered is only a suspicious circumstance was not proper. Moreover
in view of the fact that undergarments of accused and dcceaserJ^were recovered during
investigation in consequence of disclosure, absence of name of accused in F.I.R. having been
explained, and non-questioning the Investigating Officer about delay in examination of witnesses by
him renders acquittal not justified.
It was also observed that in this case deceased a child of less than 6 years was raped and
thereafter brutally murdered, therefore the case falls in rarest of the rare category justifying death
sentence. Therefore the judgment of the High Court was set aside and that of the Trial Court was
restored.'
In Amit v. State of Maharashtra.1 the father of the deceased and appellant worked in the same
office. The deceased and appellant knew each other. The father of the deceased (PW-5) used to drop
her daughter at the school and as usual on 28th March 2001 at about 7.30 a.m. he dropped her at the
school. She used to return from school around 12.00 noon. Since on that date she did not return
mother of the deceased informed her husband on telephone. He rushed back home from the office
and they searched for their daughter and ultimately not finding her, a missing report was lodged by
PW-5 in the police. The appellant had gone to the house of the deceased at about 11.30 a.m. on 28th
March 2001 and had enquired about deceased as deposed to by PW-6, the elder brother of deceased.
PW-6 told the appellant that the deceased had not come back from school. In his statement under
section 313, Criminal Procedure Code the appellant admitted to have gone to the house of the
deceased. On 29th March 2001 PW-1 accompanied by Ajay PW-11 had gone to rear portion of a
place known as Gaumukh for grazing she-buffaloes. One of the buffaloes went in a dilapidated
building close by. In order to drive out that animal on going inside he noticed the dead body of a
school girl in school uniform lying in a supine condition. He informed the police. The two police
officials came to the site along with him. The said girl was seen by PW-1 and PW-11 the previous
day in the forest in the area where he usually goes for grazing of animals. At that time she was in
the company of a boy aged about 20 years. She was carrying school bag. Boy had a cycle. The boy
on being asked gave his name as Gandhi and stated on
1. Slate of U.P. v. Sati.sh. 2004 Cri. L.J. 1428 (S.C).

2. 2003 Cri. L.J. 3873 (S.C).
being asked that the name of girl is Vidya and she is his sister and also that he had brought her
directly from her school. Later both went by the same bicycle. The girl seen by PW-1 and PW-11
was the same whose dead body had been found. The appellant was arrested at 11.00 p.m. on 29th
March 2001. As per post-mortem report the cause of death is strangulation. It also shows the
commission of sexual, assault on the deceased prior to her death. Post-mortem report was admitted
by the defence. The allegation against accused was that he took the school girl to a secluded place
and committed rape on her and strangulated her to death. The deceased was last seen in the company
of the accused appellant.
It was held that testimony of the witnesses PW-1 and PW-11 who saw accused along with
deceased is trustworthy and reliable. The lime of death of deceased is established on examination of
evidence. There was close proximity of place and time between the event of accused having been
seen with the deceased and the factum of death. No explanation was given by the accused as to how
and in what circumstances the victim suffered the death. Therefore the conviction of the accused
under sections 300 and 376 was proper.
However, keeping in view the fact that the accused was an young man having no previous
record of any heinous crime, committed rape and murder of a school girl aged about 12 years.
Though he deserves severe condemnation but on cumulative facts and circumstances the case does
not fall in the category of rarest of the rare cases. Therefore death penalty awarded by courts below
was modified into life imprisonment by the Supreme Court.'
In Surendra Pal Shivbalak Pal v. State of Gujarat? the appellant was staying in one of the
rooms of a building owned by complainant, Kevalpati, a widow having three children. On 11-9-
2002 at about 10 p.m. the appellant came to Kevalpati (Pw-2) and offered Rs. 150 and sought for
sexual favour. Kevalpati got angry and asked him to go away, but the appellant declined to leave the
place. On being informed Raja Ram, brother and Manoj, son of Kevalpati scolded appellant and he
left the place. During night Kevalpati alongwith her two minor daughters was sleeping outside the
room. At about mid-night she went inside and when she came back at about 1.00 o'clock she found
her daughter Savitri alias Sanju missing. Raja Ram and Manoj searched Sanju and not finding her
got suspicious and went in search of appellant in his house but he was not found. Ram Varan Pw-7
told them thai he had seen appellant going away with a girl on his shoulder. The people in the
locality collected and at about 4 a.m. they saw appellant coming from nearby road. Kevalpati Pw-2
and other took him to the police station where a case was registered. The dead, body of Sanju was
recovered floating on the water of a pond and was identified by relatives. Post-mortem report
revealed a series of injuries on the body and the clothes were blood-stained hymen was completely
ruptured and a lacerated wound was reported on private parts of the deceased and death was caused
due to asphyxia. Prosecution relied on recovery of dead body pursuant to the confession made by the
appellant and evidence of Ram Varan Pw-7, clothes of appellant were sent for chemical
examination. Accused could not give any explanation for presence of blood stains on his clothes
mixed with semen. The Sessions Court found him guilty punishable under Sections 363, 376 and
302 of Indian Penal Code and sentenced to death. The High Court also confirmed the sentence of
accused on all counts.
It was held by the Supreme Court that accused could not give any explanation of blood-stains
on his clothes mixed with semen and a witness has seen him moving during night with a child on his
shoulder, and previous conduct of accused though
1. Ami! v. Slate of Maharashtra, 2003 Cri. L.J. 3873 (S.C).
2. 2004 Cri. L.J. 4642 (S.C).
not admissible in evidence, would prove that he was prone to do such crime. Therefore conviction of
accused for offences under Sections 363, 376 and 302 of I.P.C. was proper.
It was further held that as the accused was aged 36 years at the time of occurrence and there
is no evidence of his involvement in any other criminal case previously, and he was a migrant labour
living in impecunious circumstances, the case does not fall within the category of 'rarest of rare case'
and the death sentence was, therefore, commuted to life imprisonment.
In Bablu Hussain v. State of Rajasthanf on 10-12-2005 at about 5 a.m. in the morning the
accused appellant Bablu came out of his house shouting that he has killed all the five bastards by
strangulation one by one. The accused killed his wife three daughters and a son. The dead bodies
were found placed on the mattresses tying the thumbs of each leg of dead bodies by thread. The
above facts were narrated in the written report submitted by PW-1, Alladeen at police station. The
appellant was charged and tried for commission of offence under Section 300 IP. Code. The ear ring
of wife was recovered from the possession of accused. The evidence of witnesses before whom
alleged extrajudicial confession has been made by accused was found cogent and credible. Presence
of accused in a house wherein alleged incident look place is natural. Recovery of ear ring of wife
from possession of accused was also proved. Thus, the chain of evidence is complete and therefore
the conviction of accused was held to be proper. As for the plea of drunkenness at relevant point of
time of murder is concerned, the Court held that the brutal acts done by accused are diabolic in
conception and cruel in execution. Acts were held not only brutal but also inhumane with no
remorse for the same. Merely because the accused claims to be in a state of drunkenness at relevant
S. 300 ] 406
point of time that does not in any way get diluted because one after another five lives were taken and
that too of four young children. Therefore the court held that the case squarely falls under rarest of
rare category to warrant death sentence. It was held that the defence of drunkenness can be availed
only when intoxication produces such a condition as the accused loses the requisite intention for the
offence. The onus of proof of intoxication due to which the accused had become incapable of having
particular knowledge in forming the particular intention is on the accused. The Court in this case
reiterated the three main propositions laid down in D.P.R v. Beard1 case. Stating those three
propositions the Supreme Court held that in the present case, the pica of drunkenness can never be
an excuse for the brutal diabolic acts of accused; Therefore, the court held that the case has rightly
been held to fall in the category of rarest of rare cases justifying the death sentence.
In State of Punjab v. Gurmej Singh,3 respondent Gurmej Singh and deceased Jagjit Singh
were brothers. The two brothers used to quarrel on account of money transaction. Allegedly the
money which respondent Gurmej Singh had sent to Jagjit Singh from Dubai was not being returned
in spite of repeated demand. Jagjit Singh told Gurmej Singh that the money was spent on the house.
It infuriated Gurmej Singh and that became the cause of assault. Dalip Singh (PW-5), falhcr-in-law
of Jagjit had gone to the village of Jagjit Singh on November 1, 1993. When he reached there al
about 5 p.m. the iwo brothers were quarreling. Dalip Singh persuaded them not to fight and get the
matter settled through Panchayat. But Gurmej Singh was very much annoyed with his brother and
had been planning to assault him. The same day at about 11.00 p.m. Gurmej Singh assaulted his
brother Jagjit Singh, his wife Charanjit Kaur, their son Swaranjit Singh, daughter Gurmeet
Kaar and Amarjit Kaur, daughter of sister of Charanjit Kaur at their house. Dalip Singh father-in-
law of Jagjit Singh who happened to stay on that night in the house of Jagjit Singh got up on hearing
1. 2007 Cri. L.J. 1160 (S.C).
2. 1920 A.C 479.
3. 2002 Cri. L.J. 3741 (S.C).
the commotion and asked Gurmej Singh not to assault, upon which Gurmej Singh assaulted Dalip
Singh as well. It is said that since handle of the Kirpan got broken, Gurmej Singh picked up a dah
and continued his assault with it. On hearing the alarm raised by victims other people arrived at the
spot. As a result of assault three persons, namely Jagjit Singh, his wife Charanjit Kaur and their son
Swaranjit Singh died while others received injuries. Thereafter a report was lodged by Dalip Singh
(PW-5). After investigation Gurmej Singh and his wife both were charge-sheeted. After the trial
Gurmej Singh was convicted for murder under section 302 on three counts for three murders.
After discussing a number of factors that were taken into consideration while awarding the
extreme penalty of death sentence the Supreme Court held that the incident took place because of
mistrust that developed between the two brothers over money sent by accuced to deceased, the
imposition of death sentence was not proper as the case does not fall in rarest of the rare category. It
was also pointed out that the likelihood of accused being released pre-maturely also cannot be a
ground to impose death sentence. Further while awarding death sentence motive of the crime, the
manner of assault, the impact of crime on society as a whole, the personality of the accused,
circumstances and facts of the case as to whether the crime committed is for satisfying any kind of
lust or greed, or in pursuance of any organised anti-social activity or by way of organised crime,
drug trafficking or the like or the chances of inflicting the society with a similar criminal act that is
to say vulnerability of the members of society at the hands of the accused in future or commission of
murder which may be shocking to the conscience are to be taken into consideration.'
In Dayanidhi Bisoe v. State of Orissa,2 the appellant was an agnetic nephew of the deceased
Anirudh Sahu who was residing at Jeypore. The appellant was carrying on business and was resident
of Niranguda village. The appellant used to visit deceased and often stayed in the house of deceased.
The deceased was married to Lata and had a three year old daughter named Puja. The appellant
suffered loss in his business and was in constant need of financial assistance. The visit of appellant
was not liked by Lata wife of deceased as she suspected his character. She had complained about
this to the brother of her husband (PW-15) who in turn had spoken to deceased about the property of
allowing the appellant stay with Anirudh and his family during the visit of the appellant Jeypore.
But the deceased continued to entertain the appellant even against the wishes of his wife and
brother.
On 3rd June 1998 the appellant visited the house of deceased when deceased's wife went to
the house of her neighbour Babu Lanka to call her daughter Puja. The mother of Babu Lenka asked
Lata to stay for a while, she replied that, they had a guest from village and she has to serve the
dinner, so saying she left for the house alongwith her daughter. One betel shop owner of the locality
had also seen the deceased in the company of the appellant at about 9 p.m. Both had gone to his
shop. He also saw the appellant the next day i.e., on 4th June 1998 in the morning going from the
direction of the house of deceased. On 4th June 1998 the neighbours not having seen the members of
deceased's family till late in the morning, the neighbour got suspicious and tried to trace the
deceased. In this process one of the neighbours (PW-9) climbed a tree in front of the flat of the
deceased and saw Anirudh, his wife Lata and daughter Puja lying dead inside the house. Thereafter
the neighbours joined together and broke open the door of the flat which was locked from outside
1. State of Punjab v. Gurmej Singh, 2002 Cri. L.J. 3741 (S.C).

2. 2003 Cri. L.J. 3697 (S.C).
and entered the house where they found dead bodies of all the three having injuries in their neck.
They also noticed that the ornaments normally worn by Lata and Puja were missing. They also saw
that almirah was opened and all the household articles were ransacked. Some witnesses who had
earlier seen the appellant in the company of the deceased in the previous evening noticed that the
appellant was missing. Therefore Babu Lcnka (PW-1) a neighbour of deceased filed a complaint in
police station.
The appellant was convicted for murder and sentenced to death by lower court. The case is
based on circumstantial evidence. The Supreme Court found that accused used to visit deceased very
often and the deceased was last seen in his company. Accused was seen going away from the house
in the morning after the fateful night. The deceased met homicidal death because of injuries caused
by double edged weapon which was recovered at the instance of the accused. Blood stains matching
with blood of one deceased was found. Gold watch and wrist watch belonging to one of the
deceased was recovered from the possession of accused. Finger prints of accused with blood stains
were found at place of incident immediately after incident. Nail clipping of accused was also found
to contain blood.
The Supreme Court held that the circumstances form a complete chain establishing guilt of
accused. The appellant has very often been enjoying the hospitality of deceased but on one night
killed the entire family of deceased including 3 year old child. Murder was committed when victims
were asleep and when there was no provocation from victims. The purpose of cold blooded murder
was only financial gain. The circumstances show cold blooded and premeditated approach of
accused. The case falls in the category of rarest of the rare cases and the award of death sentence is
proper. The fact that accused was only 35 years of age and he had aged parents and minor daughter
and there was possibility of his rehabilitation does not justify imposition of life imprisonment.1
In Subhash Ram Kumar Baid v. State of Maharashtra,1 on 13th lune, 1995 at
about 8--p.mr~thlf deceased and his other family members were seeing television.
Somebody pressed the bell at the door and on hearing the sound maid-servant of
deceased followed by Anjana went to see as to who had pressed the bell. On enquiry
Anjana was told that one of the two standing on the step was Arvind claiming
himself as a friend of deceased. In the meantime deceased Harish also came near
the grill. The person at the step of the grill was talking in a very low voice. In order
to listen as to what that person was talking, Harish, the deceased leaned on the grill
and that person immediately put his hand inside the grill and caught hold of the
Kurta of Harish just to give a violent jerk. He then put his second hand inside the
grill. At that time Anjana saw that he was holding a pistol in his right hand and
pointed it at the abdomen of Harish and started firing. At that time the second
accused person climbed on the grill. He also had a pistol in his hand and started
firing on the head of Harish. Harish collapsed thereafter. Seeing all this Anjana
became almost dumb and started shouting and ran inside a minute later. She went
to western balcony to see them from where she saw that accused Nos. 2 and 3 fled
from the place of occurrence on a vehicle. Harish was shifted to hospital where he
was declared dead. Anjana lodged FIR on the same day at about 10 p.m. From the
scene of occurrence empty cartridges and bullets were recovered. The post-mortem
report conducted by the Doctor showed 17 different injuries. Some internal injuries
were also found by the Doctor. Later on the pistol and revolver was recovered from
the accused persons.__________
1. Dayanidhi Bisoe v. State of Oris.sa, 2003 Cri. L.J. 3697 (S.C).
2. 2003 Cri. L.J. 443 (S.C).
The death sentence awarded under section 302 read with section 34 of Indian Penal Code was
modified by the Supreme Court as it did not treat the case falling in the category of rarest of the rare
case. It was held that at the time of incident in the instant case the victim was unarmed and the
accused persons murdered him by causing gun shot injuries. The brutality was not of such a nature
so as to exercise the discretion of passing an order of capital punishment. Undoubtedly the brutality
is involved but that brutality itself will not bring it within the ambit of the rarest of the rare cases.
The death sentence was modified to that of life imprisonment.
It was further observed that in every incident of murder brutality is involved. Brutality
obviously would be an existing factor but how the same did take place is the relevant and necessary
material to be considered. Ours being a civilised society a tooth for a tooth and an eye for an eye
ought not to be the criterion and as such the question of there being acting under any haste in regard
to the capital punishment would not arise. Our jurisprudence speaks of the factum of the law courts
being slow in that direction and in that perspective a reasonable proportion has to be maintained
between the heinousness of the crime and the punishment. While it is true punishment
disproportionately severe ought not to be passed but that does not even clothe the law courts,
however, with an option to award the sentence which would be manifestly inadequate sentence
S. 300 ] 408
having due regard to the nature of offence since an inadequate sentence would not subserve the
cause of justice to the society.'
In Union of India v. Devendra Nath Rai,1 the respondent-accused, a member of Armed forces
in the Court martial proceedings was awarded death sentence for having caused homicidal death of
two army personnel and for having caused grievous injuries with intent of causing murder of two
others. The award of death penalty by the Court martial was affirmed by the Central Government
under the Army Act, 1950. The accused filed writ application before the Allahabad High Court
against the said order. The High Court upheld the conviction of the accused but held that the case
did not fall in the category of rarest of rare cases to justify award of death sentence. It was held by
the Supreme Court that no balance sheet of aggravating and mitigating circumstances was drawn up
by the High Court to record said finding. Therefore, the abrupt conclusion by High Court about the
case being not covered by rarest of rare category is clearly contrary to principles set out by the
Supreme Court. Therefore, the matter was remitted to High Court to consider the matter afresh and
take decision as to appropriate sentence.
In State (N.C.T. of Delhi) v. Navjot Sandhu,3 on 13th December, 2001 at about noon time five
heavily armed terrorists practically stormed the Parliament House complex while it was in session
and inflicted heavy casualties on the security men on duty. In the gun battle that lasted for about 30
minutes all the five terrorists were gunned down and nine persons including eight security personnel
and one gardener succumbed to the-bullets of the terrorists and 16 persons including 13 security
men received injuries. The abortive attempt of the terrorists to lay a seize of the Parliament House
failed. The investigations spread over 17 days revealed the possible involvement of four accused
persons who are either appellants or respondents herein and some other proclaimed offenders said to
be the leaders of the banned militant organisation known as "Jaish-E-Mohammad". After the
1. Subhash Ram Kumar Baid v. State of Maharashtra, 2003 Cri. L.J. 443 (S.C).
2. 2006 Cr. L.J. 967 (S.C).
3. 2005 Cri. L.J. 3950 (S.C).
conclusion of investigation, investigating agency filed the report under Section 173 Cr.P.C. against
the four accused persons on 14-5-2002 who were tried under various sections of the I.P.C. The trial
concluded within a record period of 6 months. Eighty witnesses were examined for the prosecution
and 10 witnesses were examined on behalf of the accused S.A.R. Gilani. Three accused namely
Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Gilani were convicted for the offence under
Sections 121, 121-A, 122 and Section 120-B read with sections 302 and 307 read with section 120-B
I.P.Code. Accused No. 4 Navjot Sandhu @ Afsan Guru was acquitted of all charges except the one
under Section 123 I.P.Code for which she was sentenced to undergo rigorous imprisonment for 5
years and to pay fine. Death sentences were imposed on the other three accused for the offence
under Section 302 read with Section 120-B I.P.C. (or 120-B read with Section 302 I.P.C). They were
also sentenced to life imprisonment on as many as eight counts under the provisions of I.P.C, Pota
etc. and various amounts of fine. The amount of Rs. 10 lakh which was recovered from the
possession of two of the accused, namely Mohd. Afzal and Shaukat Hussain was forfeited to the
State under Section 6 of POTA.
The Supreme Court held that the conspiracy to commit the offence of murder' in the course of
execution of conspiracy is well within the scope of conspiracy to which the accused was a party.
Therefore, he would be liable to be punished under Section 120-B read with Section 302 IPC. The
punishment applicable is the one prescribed under Section 109 I.P.C. in view of the phraseology of
Section 120-B—"be punished in the same manner as if he had abetted such offence". Section 109
lays down that 'if the act abetted is committed in consequence of the abetment, and no express
provision is made by this Code for the punishment of such abetment, a person abetting the offence
shall be punished with imprisonment provided for the offence'. Thus the conspirator, even though he
may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable
for the punishment prescribed under Section 302 I.P.C. Either death sentence or imprisonment for
life is the punishment prescribed under Section 302 I.P.C. In the instant case, there can be no doubt
that the most appropriate punishment is death sentence. That is what has been awarded by the trial
court and the High Court. The present case which has no parallel in the history of Indian Republic,
presents in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and
overpowering a sovereign democratic institution by using powerful arms and explosives and
imperiling the safety of a multitude of peoples representatives, constitutional functionaries and
officials of Governments of India and engaging into combat with security forces is a terrorist act of
gravest severity. It is a classic example of rarest of rare cases. The gravity of the crime conceived by
the conspirators with the potential of causing enormous casualties and dislocating the functioning of
the government, as well as disrupting normal life of the people of India is something which cannot
be described in words. The incident which resulted in heavy casualties, has shaken the entire nation
and the collective conscience of the society will only be satisfied if capital punishment is awarded to
the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists
and conspirators can only be compensated by giving the maximum punishment to the person who is
proved to be the conspirator in this treacherous act. The appellant who is a surrendered militant and
who was bent upon repeating the acts of treason against the nation, is a menace to the society and his
life should become extinct. Accordingly the death sentence imposed on him was upheld by the
Supreme Court.
301. Culpable homicide by causing death of person other than person whose death was intended. —If a
person by doing anything which he intends or knows to be likely to cause death, commits culpable
homicide by causing the death of any person, whose death he neither intends nor knows himself to be
likely to cause, the culpable homicide committed by the offender is of the description of which it would
have been if he had caused the death of the person, whose death hie intended or knew himself to be likely
to cause.
COMMENT
The underlying idea behind section 301 appears to be that where an act is in itself criminal,
the doing of the act is an offence irrespective of the individuality of the person harmed. It is a
common knowledge that a man who has an unlawful and malicious intent against another and, in
attempting to carry it out, injures a third person, is guilty of what the law deems malice against the
person injured because the offender is doing an unlawful act, and has that which the Judges call
general malice, and that is enough.1
The English doctrine of transfer of malice or the transmigration of motive has been embodied
in section 301 of the Code. Here if A intends to kill B but kills C whose death he neither intended
nor knows to be likely to cause, the intention to kill C is by law attributed to him. 2 If A aims his shot
at B, but it misses B either because B moves out of the range of the shot or because the shot misses
the mark and hits some other person C, whether within sight or out of sight, under section 301, A is
deemed to have hit C with the intention to kill him.
Section 301 makes it clear that culpable homicide, may be committed by causing the death of
a person whom the offender neither intended, nor knew himself to be likely to kill, but whether the
offence is murder or culpable homicide will depend upon the intention or knowledge which the
offender had in regard to the person intended or known to be likely to be killed or injured and not
with reference to his intention or knowledge with reference to the person actually killed.3
Transferred intention occurs when an injury intended for one falls on another. The doctrine is
subject to the following qualifications :
(i) The harm that follows is to be of the same kind. _The reason is that otherwise too
great violence would be done to the doctrine of mens rea and to the wording of the statute
under which the charge is made. One cannot be condemned if his mens rea relates to one
crime and actus reus to different crime because that would be to disregard the requirement of
an appropriate mens rea.
(ii) Since die law of transferred malice does not dispense with the need of proof of the
1. Latimer, 17 Q.B.D. 359.
2. Shankarlal, A.I.R. 1965 S.C. 1260.
3. Survannrtpvmc v- Enmeror, 22 M.L.J. 333.
usual mens rea it follows that defences are in effect transferred with the malice. Thus there is
no guilt if intended force was lawful, unless the accused was criminally reckless or negligent
in respect of the actual victim.
G. Williams suggested that transferred malice should be limited to cases where the
consequence was brought about by negligence to actual victim. Varying opinions have been
expressed about the desirability of such a doctrine. Some say that the doctrine is an arbitrary
exception to normal principles, others say that probably the reason for the doctrine is emotional one.
In a moral view it may be thought that a person who attempts a crime is as bad as he who by better
fortune manages to consummate it. Punishment as moral expiation should fall upon both with the
same severity. In view of some the only theory that explains the present law is crude retaliation
theory, where the degree of punishment is linked rather to the amount of danger done than to the
intention of actor.
S. 300 ] 410
Liability for homicide by mistake.—A person killing by mistake a man other than he intended
to kill is, as regards his criminality, in the same position as if he had killed the person he intended to
kill. Where A gave a poisoned apple to his wife intending to poison her, and the wife, ignorant of the
matter, gave it to a child who took it and died. A would be guilty of murder even though he, being
present at the time, endeavoured to dissuade his wife from giving the apple to child. 1 If a person
prepares poison with intent to kill any reasonable creature, such person is guilty of murder of
whatever reasonable creature is killed thereby. In a case the accused who was carrying on an
adulterous intrigue with the wife of one B intending to kill him, waylaid him in the dusk, and struck
a man as he was coming along the road, mistaking him for B. He was guilty of murder. 2 In another
case, A aimed a blow with a highly lethal weapon like a sharp duo, intending to hit B, but it fell on
and killed her child. A was guilty of murdering the child.3
Cases.—In Narsing Naik's4 case when A, B, C and D were standing in front of their houses, 11 accused persons came there and began attacking B and his
brothers and inflicted injuries on them. The accused had formed an unlawful assembly with common object of murdering B and his brother. When the assault on A, B, C and
D was going on X, Y and Z along with some others came and separated the accused and A, B, C and D. At that time one of the accused M ran into the house of another
accused J which was nearby and brought a gun. When accused M came with a gun and stood at a distance of about 30 to 35 feet from the house, A, B, C and D got frightened
and started running into the house. At that time M fired a shot. This shot hit Honnurappa, a servant of A, who was standing near the door of the house and killed him.
Thereafter A, B, C and D ran into their house and one Lakshmibai, wife of C who was carrying in her arms her child Rukmini aged about 15 years, tried to close the front
door.
Just at that time M re-loaded the gun and fired a shot. This shot hit the child Rukmini who died. It
was held that no fight was going on between the parties and there was no apprehension of danger
when M fired the two shots, therefore, section 301 was clearly applicable to this case and the
liability would be for murder.
In another case1 B, with the intention of killing C, on whose life he had effected insurance,
1. Saunders Plowd. I Hawk P.C.C. 31.

2. Govind Balajee, (1828) Morley's Dig. (N.S.) 125.
3. Bhomonee Abum, 8 CR. 78.
4. re Narsing Naik, 1972 M.L.J. (Cr.) 33.
gave him some poisoned sweetmeat. C ate some of it and threw the rest away which was picked up
by the daughter of B's brother-in-law, aged 8 years without the knowledge of B. She ate it and gave
some to another child also. The two children died from the effect of the poison but C recovered. B
was held guilty of murder. A finding B attacked by C with a knife shoots at C thereby intending to
save B, the shot misses C and kills B. Here A would be liable in the same manner as he would have
been if instead of B, C was killed. Since A shot at C to save B from being inflicted injury by knife
which could be grievous hurt and if C were in fact killed A would not have been liable because he
could claim the right of private defence under section 100 I.P.C. Therefore, A would not be liable
for causing of death of B as well.
A fired his gun at B with the intention of causing his death. The bullet missed the target and
hit C who was killed. Here A is liable for causing murder of C as the doctrine of transferred malice
as contained in section 301, Indian Penal Code will apply. A intented to kill B but he missed the
target and C was killed. His liability in this case would be that as it would have been if B was killed
by A.
A finding B attacked by C with knife shoots at C thereby intending to save B, the shot misses
C and kills B. In this case A intended to fire at C in order to save B who was attacked by C with a
knife which was likely to cause either grievous hurt or death. Had A caused death of C he would
have been entitled to claim the defence under clause second of section 100, Indian Penal Code and
his act would not have amounted to an offence. Therefore as A acted in good faith to save B from
deadly attack by C but unfortunately B was killed as the shot missed C and hit B. Therefore A is not
liable for any offence in this case. The principle of transfered malice as contained under section 301,
Indian Penal Code shall apply.
302. Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment
for life, and shall also be liable to fine.
COMMENT
This section provides punishment for murder. Life imprisonment is the rule and death penalty
is an exception in an offence of murder.2 Section 354 (b) of the Criminal Procedure Code, 1973
requires that special reasons should be recorded while awarding death penalty.
Where from the accused's conduct it appears that he is genuinely repentant for his conduct
and desires to atone for the grievous wrong done by him, the
1. Suryanarayanomoorty, (1912) M.W.N. 136; Ballan, A.I.R. 1955 All. 626.

2. Rajendra Prasad v. State of U.P., 1979 Cri. L.J. 792; See also Jagmohan v. State of U.P. 1983 Cri.
L.J. 370.
Court by taking overall view of all circumstances of the case substitute death sentence by sentence
of life imprisonment.1
An accused can be held guilty of murder on the basis of circumstantial evidence if the circumstances
unerringly point to the guilt of the accused and they are consistent with his guilt. 2 In a conviction for murder if
direct evidence is satisfactory and reliable the same cannot he rejected on hypothetical medical evidence. 3
In Earabhadrappa v. State of Karnataka,4 the accused appellant who was a servant of the deceased,
strangulated her to death and after her death, eloped with her ornaments, silk saries and cash money kept in the
almirah. The offence was committed in the dead of the night when every body in the house was asleep. On these
facts it was held by the High Court to be a preplanned and cold blooded murder for greed. The Supreme Court
held itself to be bound by the decision in Bachan Singh v. State of Punjab,1 in which the Court was moved by
compassionate sentiments of human feelings and had ruled that the sentence of death should not be passed except
in the rarest of the rare cases. But it came to the conclusion that this case does not fulfil the test laid down in
Bachan Singh's case, therefore, the death sentence was reduced to life imprisonment.
In another case the accused had some suspicion about the chastity of his wife and due to this relations
between them were not cordial. Owing to frequent quarrel the wife with her six years old daughter left her
husband's house and went to her brother's house. One day while she was reaping crops in the field with a young
girl aged about 12 years, he came to her and asked her to accompany him to the brook to wash his clothes. Both
mother and daughter accompanied him. After sometimes both mother and daughter were found dead. The
accused was held guilty of murder.6
In order to convict the accused for murder under this section not only the location of the injury is to be
looked into, the intention of the person causing injury has also to be gathered from a careful examination of all
the facts and circumstances of each given case. Thus where the accused caused injury to the deceased in groin
and on his back behind chest by knife and similar injuries were caused to the prosecution witness when he tried
to intervene the accused will be guilty of murder because he has necessary intention to cause death. 7
Where the trial court and the High Court are not unanimous as to the quantum of punishment for an
offence of murder, life imprisonment will be the proper punishment. 8
A delay in execution of death sentence will not by itself be a ground for modification of death sentence
into one of life imprisonment.
The sentence of death should be awarded in rarest of rare cases 1'1 i.e., life imprisonment should be rule
and death sentence exception.
It was observed in Swainy Shraddhananda v. State of Karnataka,11 that in case of conviction for murder
and other capital offences punishable in alternative with death under the Penal Code, the extreme penalty should
be imposed only in extreme cases.
It was also observed that even though the categories framed in Machi Singh,12 case provide very useful
guidelines for awarding death sentence nonetheless those cannot be taken as inflexible, absolute or inimitable.
Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh case.13
In case of Mathura Lohar v. The State,1 the accused had committed brutal murder of his
1. Javed Ahmad Abdul Hamid Pawala v. State of Maharashtra, 1984 Cri. L.J. 1909 (S.C).
2. Tulshiram v. State of Maharashtra, 1984 Cri. L.J. 209 (Bom).
3. 1984 Cri. L.J. 921 (S.C).
4. 1983 Cri. L.J. 846 (S.C).
5. 1980 Cri. L.J. 636.
6. Amrita v. State of Maharashtra, 1983 Cri. L.J. 1057 (S.C).
7. Jaspal Singh v. State of Punjab, 1986 Cri. L.J. 488 (S.C).
8. State (Delhi Administration) v. Laxman Kumar, 1986 Cri. L.J. 155 (S.C).
9. K. Govinda Swami Pillai v. Government of India and others, 1986 Cri. L.J. 1326.
10. Bachan Singh v. State of Punjab, 1980 Cri. L.J. 636 (S.C). ■
11. (2008) 4 Cri. L.J. 3911 (S.C).
12. 1983 Cri. L.J. 1457 (S.C).
13. 1980 Cri. L.J. 636 (S.C).
daughter-in-law and his brother. The cause of dispute was that his son was married by his brother
against his wishes and both the son and daughter-in-law were living with his brother. There used to
be frequent quarrel between them. One night he entered in their house and killed them with an axe.
It was held by the Supreme Court that the case does not fit in the expression "rarest of rare cases"
therefore he will be punished with sentence of life imprisonment only.
In Harpal Singh v. Devinder Singh? one Himat (A-9) was a candidate for Presidentship of the
students' union election and he was opposed by Jasbir Singh. But Himat was ultimately elected. On
the day of occurrence at about 1.30 p.m. Jasbir Singh, Harpal Singh and Randeep Rana (Secretary of
the Union) were standing outside the canteen of Narhari Hostel. Suddenly Himat (A-9), the
President of the Union caught hold of Jasbir Singh and then Sat Prakash (A-6) slapped a knife blow
on the left chest of Jasbir Singh which was followed by Satbir Singh (A-l) inflicting another knife
S. 300 ] 412
blow on the left side of his chest. When Sumer Singh (PW-6) intervened, presumably to rescue his
colleague he was prevented by Jeevan Singh (A-8) and Sandeep Singh (A-10). But right at the same
time Devinder Singh (A-5) gave a stab injury on Sumer Singh. The other assailants also attacked the
deceased with iron rods, clubs and hockey sticks etc. Jasbir Singh breathed his last very soon, but
Sumer Singh who was operated upon at Medical Institute, Chandigarh survived. The case was
registered on the statement of Harpal Singh (PW-3). Sumer Singh the injured was examined as (PW-
6). No other eye-witnesses were examined. The Court observed that it was Harpal Singh who gave
the first information statement to the police in which he claimed to have seen the occurrence and
narrated the incident with all details. He was a resident of the Hostel in the precincts of which the
incident happened. He also helped the injured to reach the hospital at the earliest point of time. In
view of the facts stated above it was held that Devinder Singh. A-5 cannot be convicted of more
than causing grievous hurt to PW-6, Sumer Singh. So also the exhortion made by Himat (A-9)
would amount to facilitation of crime and in the circumstances it was probable that he would not
have intended causing more harm than grievous hurt to Jasbir Singh. Therefore he was also
convicted under Section 326, read with Section 34, IP. Code. But Satbir Singh (A-l) and Sat Prakash
(A-6) were held liable for offence under Section 302, read with Section 34 IP. Code. The order of
acquittal of the remaining accused by the subordinate court was not disturbed.
In Vishwanath Shanthamallappa Dhule v. State Of Karnataka? while deceased Babu Rao and
his son Shaniappa were proceeding from their house to their field carrying food for their father who
was staying in the field and when they were passing through the field of Suleman the appellants
along with three others assaulted Babu Rao. Appellant No. 2. gave a blow with an axe on the neck of
the deceased as a result of which he fell down and soon thereafter died. But appellant No.l only
raised his axe but did not give a blow. On seeing this assault on his father Sharanappa' who was then
a child of about 5 years ran away towards village. PW-4 Bhimashankar who was returning from his
field to the village, saw this assault on the deceased who was distantly related to him. He raised a
cry whereupon the accused ran away. He went near Babu Rao and found
1. 1986 Cri. L.J. 877 (S.C).

2. 1997 Cri. L.J. 356 (S.C).
3. 1998 Cri. L.J. 400 (S.C).
[ S. 302
413 INDIAN PENAL CODE, 1860
him dead. He then proceeded towards the village and there he told PW-5 Irappa and PW-6
Shivagondappa about the assault on the deceased by the accused. He informed his uncle
Gurlingappa (PW-8) also about the incident and then along with other relatives went back to the
place where Babu Rao was lying dead. Father of the deceased PW-3 requested PW-8 to go and
lodge a complaint with the police. The appellants No.l and No. 2 were convicted for the offence
punishable under section 302, read with section 34, but the other accused were acquitted. The Court
relied on the evidence of PW-4 which was corroborated by the evidence of PW-5 and PW-6. No
enmity was shown between the eye-witness and the accused, although he was a relation of the
deceased. It was held that there is no infirmity in the evidence of PW-4 and once his evidence is
believed it establishes that appellant No. 2 had given an axe blow on the neck of the deceased. It is
true that no blow was given by appelant No. 1 but possibly that became unneccessary as after
receiving the first blow the deceased had fallen on the ground. Appellant No. 1 with appellant No. 2
had gone together and assaulted the deceased and appellant No. 1 had also raised his axe to assault
the deceased. Therefore his conviction under section 302, read with section 34, Indian Penal Code
cannot be said to be improper. Therefore appeal was dismissed.
In Ram Khilari v. State of Rajasthan,1 the appellant was convicted for the offence of~fnurder
under section 302, Indian Penal Code on the basis of extra judicial confession made before PW-5
Ram Kishan. The investigating officer had recorded the statement of PW-5 after 20 days. PW-5
Ram Kishan was a close relative of the appellant. The sister of appellant is married with son of Ram
Kishan. It was held that the testimony of the witnesse is reliable and truthful. There is no material
on the basis oe which it can be said that he had any reason to falsely involve the appellant in the
commission of such grave offence. It was further pointed out that since the witness and the
appellant were close relatives it was quite probable that the appellant thought that he would get
shelter in the house of Ram Kishan. Therefore his informing Ram Kishan about the incident was not
improbable. As for the delay in recording the statement of PW-5 by the investigating officer is
concerned the investigating officer has explained that he had summoned this witness but as he was
not found his statement could not be recorded earlier. Evidence of PW-5 Ram Kishan suffers from
no infirmity and therefore there was no reason to interfere with the findings recorded by the court
below that his evidence is reliable and truthful. His evidence is sufficient to establish the guilt of the
appellant. Therefore conviction of the appellant on the basis of the extra-judicial confession was
held to be proper.
Five persons A, B, C, D and E went to a house for settling a dispute. A and B were armed
with axes and C, D and E were armed with sticks. A and B assaulted M and N with the but ends of
the axes. C and D assaulted them with sticks on their hands and legs. E did not participate in the
attack on M and N. M and N died. A, B, C, D and E are tried for forming an unlawful assembly
with common object of murder. In this case A, B, C, D and E all of them went armed to the house
for settling a dispute and if need be by use of the weapons which they possessed. Hence they
formed an unlawful assembly whose object was to commit an offence. A, B, C and D assaulted M
and N. Although E did not take part in assault but he was present with stick on the place of
occurence which must have encouraged his other fellows A, B, C and
D. Therefore all of them would be liable for committing murder in prosecution of their common
object.
1. 1999 Cr. L.J. 1450 (S.C).
In Najjani Faraghe v. State of West Bengal? the appellant's wife died due to burning. The trial
court as well as the High Court held that it is not a case of suicide under section 306, but of
homicide under section 302, Indian Penal Code as the victim has received burn injuries mostly on
inaccessible parts of the body. The Supreme Court upheld the judgment of the High Court and
dismissed the appeal.
In Santosh Rani Jain v. State of West Bengal? Virendra, husband of deceased Neelam and
Santosh Rani mother-in-law and Rabindra brother-in-law of deceased were all convicted by the trial
court under section 302, read with section 34, Indian Penal Code for causing death of Neelam. But
the High Court in appeal acquitted Rabindra, brother-in-law of Neelam, while it convicted the
husband and mother-in-law. The deceased was married with Virendra Kumar Jain about 4 monthes
before the incident. After marriage husband and mother-in-law of deceased started harassing and
torturing her for dowry. Initially Rs. 11000/- was paid and a few days later Rs. 11000/- more was
paid as dowry. But the demand continued and brother of Neelam gave a pay order of Rs. 22500/- in
his name. Some golden ornaments were also given. It is alleged that all the ornaments were taken
away from Neelam by her in-laws. On the day of incident all the three accused mercilessly beat
Neelam and threw her dead body on the pavement outside their residential building. After some
time they took the dead body to the hospital and reported to the hospital that she jumped from 11th
floor of their house and had received injuries as a result of the fall. Medical evidence very clearly
established that it was not a case of suicide but of homicidal death. There was no direct evidence to
prove who caused the death of Neelam. The prosecution relied on circumstantial evidence as stated
[ S. 302
414 INDIAN PENAL CODE, 1860
above and also that no blood was found at the ^ place where dead body was seen lying. Medical
evidence proved that all the injuries \ found on the body of Neelam could not have been caused by a
fall from 11th floor \of a house and were more consistent with her being given blows and being
killed \n that manner. It was held that the defence has not been able to prove how the Evidence
establishing the incriminating circumstances was not reliable. Both the dpurts below have believed
the witnesses. The Supreme Court, therefore held that dfeath of Neelam was caused in furtherance
of the common intention of husband and mother-in-law. Their conviction under section 302, read
with section 34, was upheld.
In Girija Shankar v. State of U.P.? Arun Singh (Pw-1), H.P. Tiwari (Pw-3) and the deceased
were coming after seeing the fair at Bhuvneshwar and were going to their village. On the way at
about 7.30 p.m. near the village Bhawalia the weather was cloudy, it was dark and started raining,
so they decided to stay at the house of Raj Bahadur (Pw-5), who was known to Pw-3. When they
entered the village the accused persons saw them and thought them to be criminals. The accused
shouted that they should be beaten. The deceased and Pw-1, Pw-3 and Pw-5 replied that they were
innocent villagers and had decided to stay in the house of Pw-5 because of rain. So saying they
proceeded towards pw-5. After they had gone few steps, suddenly A-l fired two shots, one of which
hit the deceased and other hit Pw-3 when Pw-1, Pw-3 and the deceased shouted, many villagers
including Pw-5 came there. There was exchange of hot words and A-2, A-3 and A-4 assaulted Pw-
3. A-3 removed gold ring and watch of the deceased. The gun of H.P. Tiwari (Pw-3) was snatched
away by A and it was deposited next day in the police station. The Trial Court convicted the
appellant and 3 others for offences under sections 302 and 307
1. A.I.R. 1998 S.C. 682.
2. A.I.R. 1998 S.C. 2633.
3. 2004 Cri. L.J. 1388 (S.C).
read with section 34 and section 394.

It was held that the evidence on record does not show that the accused persons shared
common intention to kill the deceased. The first reaction of accused was that the deceased and
others were criminals and they should be beaten. They did not even chase them. It is also accepted
that after they had gone some distance A-l fired the gun twice. Evidence shows that A-l "was also
armed with lathi. Other accused were not aware that he was carrying gun and that he intended to
use it. The Trial Court found no evidence to show pre-concert or that it may have developed at the
spot. The inevitable conclusion is that the appellant cannot be convicted in terms of section 302
read with section 34 of I.P.C. As for the conviction under section 307 read with section 34 is
concerned, it was held that to justify a conviction under this section, it is not essential that bodily
injury capable of causing death should have been inflicted. It is not necessary that the injury
actually caused to the victim of the assault should be sufficient under ordinary circumstances to
cause the death of the person assaulted. What the court has to see is whether the act, irrespective of
its result, was done with the intention or knowledge and under circumstances mentioned in the
section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law if
there is present an intention coupled with some overt act in execution thereof. In the present case
victim sustained 11 injuries inflicted by four accused. Injuries inflicted by accused appellant were
not serious. Hence conviction of accused under section 307 read with section 34 needs no
interference. Further, since snatching of the gun and the other articles were not attributed to the
appellant and section 34 was not pressed into service, hence conviction under section 394 in so far
as appellant is concerned cannot be maintained.
In Babu Ram v. State,1 an appeal was filed against order of acquittal of the accused by the
High Court setting aside the judgment of the trial court convicting the accused under section
302/34, Indian Penal Code. In this case an animasity was shown between the deceased and the
accused. One day he caught hold of him in a lane and inflicted injuries on the front and back with
dagger. The Supreme Court restored the judgment of the trial court and held that the High Court
committed a grave error in doubting the prosecution evidences and witnesses.
It was held in Haricharan v. State of Rajasthan,2 that where persons come armed together,
do the act of committing murder and runaway together, the murder can be said to have been
committed in furtherance of common object and such persons are liable under section 302, read
with section 149, Indian Penal Code.
In Banwasi Ram v. State of U.P,3 an appeal was filed against the sessions trial. In this case
the appellants were the members of Pradeshik Armed Constabulary belonging to the 5th batallion
with the headquarter at Ramnagar. An unfortunate and unsavoury incident occurred on account of
the decision of the State Government that the Army would take over charge of the armoury and
magzines of the aforesaid Constabulary as it has become indisciplined. The Army and Civil
Authorities chalked out a plan of action and moved towards the headquarters accompanied by a
Magistrate. When Magistrate ordered them to handover the building and weapons to army, they
became agitated and retaliated. The Magistrate declared their assembly as unlawful and directed
them to disperse, but they opened fire which was retaliated by the Army with permission of
Magistrate. In this firing 12 persons of Army were killed and 32 injured whereas 4 persons
belonging to Conostabulary were killed. But ultimately Army succeeded.
The Supreme Court held that not only those persons who opened fire are liable under section
149, but also those persons who remained present, instead of the order of dispersal of Magistrate,
1. A.I.R. 1998 S.C. 663.
2. A.I.R. 1998 S.C. 244.
3. A.I.R. 1998 S.C. 674.
are liable under section 149 as these presence was sufficient encouragement for others to retaliate.
Supreme Court even held one member of the Constabulary also a member of unlawful assembly
who came at a later stage after the start of firing. Therefore the Supreme Court upheld the judgment
of the High Court convicting the appellant under section 302/149 of Indian Penal Code.
In Bala Seetharamalah v. Perike S. Rao,1 the Session judge did not frame charge against the
accused persons for offence punishable under section 302 of I.P.C. read with section 149 of I.P.C.
The relevant prosecution allegations so as to bring in the ingredients of the offence punishable
under section 302 of I.P.C. read with section 149 of I.P.C. also were not incorporated in the charge
framed by the Session Judge. The accused were not told that they had to face charge of being
member of the unlawful assembly and the common object of such assembly was to commit murder
of the deceased and in furtherance of that common object murder was committed and thereby they
had the constructive liability and thus they committed the offence punishable under section 302 of
I.P.C. read with section 149 of I.P.C. It was held that failure to mention nature, ingredients of
offence committed by accused in charge-sheet is not a mere irregularly. In the absence of any
charge framed against accused under section 302/149 of I.P.C, the alteration of conviction under
section 326 to section 302 read with section 149 of I.P.C. is not permissible. Such failure is not
merely an irregularity.
S 302 ]
INDIAN PhNAL CODE, 1860 416
In Bharat Singh v. State of Uttar Pradesh? five appellants were tried for offences under
section 302/149 and section 148 Indian Penal Code, on the allegation that all of them came armed
and surrounded the deceased Jai Dayal Singh while he was busy in cultivation work at 1.00 p.m.
and opened fire at him. On account of such firing Jai Dayal died. Police guards were posted to
provide security to deceased on account of previous rivalry between parties. These police guards
arrived at the scene of occurrence and even chased the assailants and fired at them but all assailants
escaped. While deceased was on the field PW-1 Jai Prakash and PW-2 Satya Pal Singh were also
there but they ran away for their lives to a certain distance and came only after the assailants left the
place. None of the police guards were examined as witnesses. It was held that the testimony of eye-
witnesses was neither inconsistent nor contradictory. If any of the police guards posted would have
been examined they would have unfolded the fact of their chasing the accused persons and their
escape. But by the time they reached the scene of occurrence the accused had already shot at the
deceased and have tried to escape from the place. It is not proved from the records that police
guards have seen the accused firing the deceased and therefore they cannot be termed as eye-
witnesses to the occurrence merely because they chased the assailants. Therefore non-examination
of such police people.who cannot be termed as eye-witnesses will not be fatal to the prosecution.
Therefore the conviction of the accused under section 302/149, and 148 Indian Penal Code solely
on the basis of testimony of eye-witnesses was held to be proper.
It was alleged in Sanjiv Kumar v. State of Himachal Pradesh,3 that Sanjiv Kumar, Kamlesh
Tyagi and Lekhraj Gupta hatched a criminal conspiracy to kill the deceased Rajesh Sharma and in
furtherance of the said conspiracy accused Sanjiv Kumar caused murder of the deceased whereafter
the accused Sanjiv Kumar and Kamlesh Tyagi caused disappearance of the evidence of the offence.
Accused
1. 2004 Cri. L.J. 2034 (S.C).
2. 1999 Cri. LJ. 829 (S.C).
3. 1999 Cri. L.J. 1138 (S.C).
Lekhraj is alleged to have harboured Sanjiv Kumar knowing him to have committed the offence. It
was held that there was no material showing that there was agreement between both accused to
commit murder of deceased. The mere fact that accused Sanjiv was nephew of co-accused Kamlesh
is not sufficient to lead to an inference of conspiracy. Therefore conviction of accused under section
302/120-B, Indian Penal Code was set aside.
In C.V Covindappa v. State of Karnataka? the deceased, the wife of the appellant came out
running from the house with flames on her body. The husband used to treat the wife with cruelty on
account of non-fulfilments of dowry demands. The wife made the statement that her husband had
set her ablaze. The Supreme Court upheld the judgment of lower court and held the husband guilty
under sections 302 and 498A of the Indian Penal Code.
In Uday Kumar v. State of Karnataka,2 one Parthasarathi (PW-1) along with his wife Ganga
Bai (PW-2) and two children, namely Suresh and Manjunath (PW-3) came to the house of mother
of Ganga Bai on 19-4-1988 to attend some ceremony to be held the next day. The appellant accused
is the real brother of Ganga Bai. Parthasarathi was sleeping in one of the rooms in that house.
Ganga Bai (PW-2) between 4 and 5 p.m. came to the room where Parthasarathi (PW-1) was
sleeping and told him that their son Suresh had been killed. On hearing this news Parthasarathi
(PW-1) and Ganga Bai (PW-2) rushed to the said room where dead body of Suresh, a child aged
about 4 years with head severed was lying on the floor and the appellant was standing there with a
kathi in his hand. Medical evidence showed that deceased met with homicidal death. Testimony of
witnesses that they saw deceased lying dead in the room with head severed and accused was
standing there with blood-stained kathi was corroborated and believable. It was proved that the
accused absconded after the occurrence and the weapon used in the offence was recovered at the
instance of accused. It was held that there is nothing in the evidence to prove enmity of Gangabai
with the accused. The evidence of PW-1 in all material particulars corroborates the evidence of
PW-2. It was also established that the deceased Suresh and one Chandinathan were called by the
appellant in his room under the pretext of giving coconut. It was held that in case of circumstantial
evidence, motive is one of the circumstance which assumes importance but it cannot be said that in
the absence thereof other proved circumstances although complete the chain would be of no
consequence. If the appellant was innocent, instead of absconding, he would have been found in the
house to console his sister who lost his son. Therefore conviction of the appellant under section
302, Indian Penal Code was upheld.
In Gurdev Singh v. State of Punjab? the appellants Gurdev Singh and Satnam Singh along
with three other accused went to the house of Smt. Swaran Kaur on 21-11-1991 at about 9 p.m.
where the marriage of her son was to be celebrated on the next day. Relatives and friends of Smt.
Swaran Kaur had gathered and a feast was going on. Out of the five three accused scaled over the
wall and two remained at the gate. Piara Singh was armed with a double barrel gun and Sarabjit
Singh was armed with service rifle while the appellant was armed with SLR and Satnam Singh and
the other accused Jaswinder Singh who were standing at the gate were also carrying firearms. All
the five accused started firing from their weapons and continued shooting for 10-15 minutes over
1. A.I.R. 1998 S.C. 792.

2. A.I.R. 1998 S.C. 3317.
3. 2003 Cri. L.J. 3764 (S.C).
the persons taking their meals. However, PW-6 Swaran Kaur and her son managed to hide
themselves behind a heap of firewood in the house. When all the five accused left the house they
saw 13 persons lying dead and eight others seriously injured. After leaving the house all the five
accused proceeded to the house of PW-15 Sarabjit. They started firing there also and as a result
Gurpal Singh and Sukh Dev Singh,'father and brother of Sarabjit Singh (PW-15) died on the spot. It
is alleged that the accused went to two other places and killed two persons but there was no
satisfactory evidence with regard to these two.
On receipt of information police arrested Piara Singh and Sarabjit Singh immediately after
the incident. In all 17 dead bodies were sent for post-mortem. PW-6, Swaran Kaur, PW-7, Kashmir
Kaur, PW-8, Baldev Singh and PW-9 son of Swaran Kaur were examined as eye-witness to prove
the first incident where 13 persons died and PW-15 Sarabjit Singh was examined as eye-witness of
second incident in which his father and brother were killed.
It was held that there is no direct evidence regarding the motive of the accused persons
except that there was some confrontation between one of the accused P and son of complainant and
in that one of the servant's of P died. Regarding that also there is no direct evidence. The
aggravating circumstances of the case, however, are that the appellants accused having known that
on the next day a marriage was to take place in the house of the complainant and there would be lot
of relatives present in her house, came thereon in the evening when the feast was going on and
started firing on the innocent persons. Thirteen persons were killed on the spot and eight others
were seriously injured. The appellants thereafter committed another incident wherein also two
persons were killed. Out of the thirteen dead one of them was a seven years old child, three others
were at the threshold of their lives whose age was between 15 to 17 years as per post-mortem
report. They had also their right to live in this world peaceably and these appellants had no
grievance or enmity against any one of them. The entire incident is extremely revolting which
shocked the collective conscience of the community. The acts of murder committed by the
appellants are so gruesome, merciless and brutal that the aggravating circumstances far outweigh
the mitigating circumstances. Moreover the two other accused who were earlier tried are already
sentenced to death and their special leave petition was finally disposed of by the Supreme Court. In
facts and circumstances this is not a case where imprisonment for life is an adequate sentence to
meet the ends of justice. Therefore death penalty was the appropriate punishment in this case.1
In Rampal v. State of U.R,2 the appellant accused alongwith ten others was party to an
incident in which 21 people including young children were murdered by gun shot injuries or by
burning them in latched houses. The incident in question was a sequel to the murder of a close
relative of the appellant and other principal accused which was suspected to have been committed
by the members of the victim's family. Prior to that the victim's family was accused of having
committed the murder of two of the close relatives of the appellant's family, for which some of the
members of the victim's family were being prosecuted. This can be treated as a circumstance which
amounts to provocation from the victim's side. Further the role played by the appellant is somewhat
similar to the role played by the other accused persons who have been given lesser punishment
while the appellant has been sentenced to death that too with the aid of section 149 of Indian Penal
Code. The appellant was not treated by the prosecution itself as the leader of the gang but was
considered to be one amongst other accused who took part in the incident. Accused/appellant has
also spent nearly 17 years in custody after the incident in question. The above circumstances can be
considered as mitigating circumstances, and it would be sufficient for substitution of death sentence
awarded to the appellant
1. Gurdev Singh v. State of Punjab, 2003 Cri. L.J. 3764 (S.C).
2. 2003 Cri. L.J. 3760 (S.C).
lo sentence of imprisonment for life.
It was also held that it is true that the incident in question has prematurely terminated the life
of 21 people, but then number of death cannot be the sole criterion for awarding the maximum
punishment of death. While in a given case death penalty may be the appropriate sentence even for
a single murder, it would not necessarily mean that in every case of multiple murders death penalty
has to be the normal punishment.
In Dharamvir Singh v. State? the appellant, a doctor, was married with Smt. Anandi Kumari.
He had a medical clinic at Etah and was residing with his wife and three children in a rented house
of Sri Roop Narain Johri. Amar Singh brother of Smt. Anandi Kumari had gone to see his sister on
12-7-1993. He found the house locked and was told by neighbour and the landlord that appellant
vacated the house on 10-7-1993. Appellant had told them that his wife was suffering from blood
cancer and therefore he was going to Agra and Aligarh for her treatment. Amar Singh and his
family members made a search but Anandi Kumari and children could not be traced. He therefore,
suspected that his sister and children must have been killed and their body disposed off. The
appellant was not having cordial relations with his wife and therefore he used to beat and assault
her. It was alleged that appellant was having illicit relation with one Madhu Kumari of Etah. Amar
Singh lodged FIR on 17-7-1993 a case under section 364 Indian Penal Code. During investigation it
was found that Smt. Anandi Kumari was murdered. Therefore, a case under sections 302 and 201 of
S 302 ]
Indian Penal Code besides section 364 Indian Penal Code was registered on 16-10-1993. Appellant
was not traceable and ultimately he surrendered before the Court of Magistrate. The investigating
officer recorded the statement of witness Ramesh Chandra Pachauri on 12-10-1993 to whom the
confession of offence was made by the appellant. Evidence of witnesses and letters written by Smt.
Anandi Kumari to her father showed that she was subjected to cruelty by her husband. Injury report
of hospital shows that she was seriously beaten by accused on earlier occasion. Accused suddenly
left his place of residence with his wife and children and the body of his wife was not found.
Accused obtained a false death certificate from another doctor showing that his wife died of cardiac
arrest. The said doctor admitted that the certificate was fabricated in view of the above facts and
circumstances and the evidence of witness with whom accused made extra judicial confession
which was reliable, conviction of the accused under sections 302 and 201, Indian Penal Code was
proper.
In Thangaiya v. State of Tamil Nadu,2 one Selvamani Nadar (deceased) was having an
industry and he employed a number of girls. The accused used to made fun of the girl workers
outside the factory and this was objected to by the deceased several times. On that score there had
been enmity between the deceased and the accused.
At about 8.30 p.m. on 1-5-1990 Pw-1, Pw-2 and one Murugesar were standing in front of
Bensam ground on road. The accused was sitting on the eastern side of a culvert. There was a
tubelight burning and hence there was enough light at that place. At that time the deceased came on
a bicycle proceeding from east to west, took a turn to south. The accused rushed to the deceased
saying "you die, old man" and hit him with a stick on his head. The deceased sustained injuries and
there was profuse bleeding. Pw- 1, Pw-2 and Murugesar immediately went near him and when the
accused saw them coming near ran towards west leaving the weapon viz. stick. Thereafter these
three persons and wife of the deceased took him to Government Hospital at Kulachal. After giving
first aid to the deceased, the doctors of the Hospital advised to take the deceased to Nagercoil for
1. 2003 Cri. L.J. 3452 (S.C).
2. 2005 Cri. L.J. 684 (S.C).
further treatment. They took him to Nagercoil and at the Government Hospital, Kothar where he
was treated by the Doctor (Pw-6). The doctor found several injuries. Pw-1 narrated the incident to
the Head Constable (Pw-10), who recorded first information report under Sections 307, 323 and
341. Later the injured died in the Hospital at about 1.25 a.m. on 2-5-1990 and hence the case was
converted to section 302. The doctor who examined the deceased opined that the injury was
sufficient in the ordinary course of nature to cause death. The Trial Court found the evidence of Pw-
1, Pw-2 and Pw-3 as cogent and credible and convicted the accused under Section 302. The
conviction was upheld by the High Court in appeal and hence this appeal has been made to the
Supreme Court. It was pleaded before the High Court that Pw-1 and Pw-2 were related to the
deceased and Pw-3 was a chance-witness being a passer-by. The Supreme Court held that it cannot
be said as a rule of universal application that whenever one blow is given, Section 302 of I.P.C. is
ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place
where the assault took place, background facts leading to the assault, part of the body where the
blow was given are some of the factors to be considered. In this case admittedly one blow was
given with a small stick, and the place where the assault took place was dimly lit. Inevitable
conclusion is that the case is covered by Section 304, Part I of I.P.C. and not Section 302 of I.P.C.
The conviction was accordingly altered from Section 302 to Section 304, Part I of I.P.C.
It was further held that in a murder trial by describing the independent witnesses as 'chance
witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the
place doubtful. Murders are not committed with previous notice to witnesses; soliciting their
presence. If murder is committed in a dwelling house, the inmates of the house are natural
witnesses. If murder is committed in a street, only passer-by will be witnesses, their evidence
cannot be brushed aside or viewed with suspicion on the ground that they are mere chance
witnesses. Moreover he was an independent witness having no animosity with the accused.
Therefore his testimony was trustworthy.
Quantum of Punishment.—It was held in State of U.P. v. Virendra Prasad,1 that proportion
between crime and punishment is a goal respected in principle, and inspite of errant notions, it
remains a strong influence in the determination of sentence. The practice of punishing all serious
crimes with equal severity is now unknown in civilized societies. It was further pointed out that
after giving due consideration to the facts and circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and
circumstances in which a crime has been committed are to be delicately balanced on the basis of
really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is
indeed a difficult task. No formula of a foolproof nature is possible that would provide a reasonable
criterion in determining a just and appropriate punishment in the infinite variety of circumstances
that may affect the gravity of the crime. In the absence of any foolproof formula which may provide
]. 2004 Cri. L.J. 1373 (S.C).

any basis for reasonable criteria to correctly assess various circumstances germane to the
consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only
way in which such judgment may be equitably distinguished.
303. Punishment for murder by Ufe convict.—Whoever, being under sentence of
imprisonment for life, commits murder, shall be punished with death.
COMMENT
The punishment prescribed under this section will apply even in those cases
where a person undergoing imprisonment for life is convicted either under
Section 302 read with Section 34 or under Section 302 read with Section 149.'
But a convict whose sentence of life imprisonment has been remitted without
condition by Government, cannot be said to be under a sentence of imprisonment
for life, and, therefore, this section will not apply.2
In Mithu v. State of Punjab, the legality of Section 303 was examined by the
Full Bench of the Supreme Court. The majority opinion was that this section
violates the guarantee of equality contained in Article 14 and also the right
contained in Article 21 of the Constitution. The section was held to have been
conceived to discourage assaults by the life convicts on the prison staff but the
legislature choose a language which far exceeded its intention. It was, further
held that the section proceeds on the assumption that life convicts are a dangerous
breed of humanity as a class but that assumption is not supported by any
scientific data. The majority view was that it mainly violates Art. 21 of the
Constitution.
In Bhagwan Bux Singh and another v. State of U.P.? this section has been declared
unconstitutional because it is violative of Arts. 14 and 21 of the Constitution of
India. Now it is no longer available for conviction of any offender. A conviction
under this section will be altered to one under Section 302. But for awarding
death sentence under Section 302 it must be established that the case is rarest of
rare cases. If the case cannot be termed as rarest of rare cases, the sentence would
be converted into sentence for life.
304. Punishment for culpable homicide not amounting to murder.—Whoever commits
culpable homicide not amounting to murder, shall be punished with imprisonment for life, or
imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine, if the act by which death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to cause death ;
or with imprisonment of either description for a term which may extend to ten years, or with fine,
or with both, if the act is done with the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely to cause death.
COMMENT
This section provides punishment for two separate degrees- of culpable
homicide depending upon the intention to cause death or bodily injury likely to
cause death under para 1 and knowledge that the act is likely to cause death under
para 2. In a case the accused, during a quarrel lifted and threw on the ground
from some distance with sufficient force one D who was an old man with an
enlarged and floppy heart. D's ribs were fractured and he died of rupture of the
heart. It was held that the accused was liable under section 325 for causing only
grievous hurt and not under para 2 of section 304 because, he had no intention or
knowledge to cause death.5 In Keshoram v. State of Assam,6 the deceased D entered the land
of the accused and assaulted the co-accused with a lathi which provoked the accused and he
1. Mahabir Gap<< A.I.R. 1963 S.C. 118:
2. Gulam Muhammad, A.I.R. 1943 Kar. 25.
3. 19f3 Cri. L.J. 811 (S.C.) (F.B.). 4.' tt#4 Cri.
LX 928 (S.C).
5. Putti Lai, 1969 Cri. L.J. 531.
6. 1978 Cri. LJ. 1089 (S.C).
purporting to act in self-defence assaulted the deceased and caused his death. As none of the
appellants received any injury the Supreme Court held that the appellants had excelled the right of
private defence and that they were guilty of an offence under section 304, Part II of the Code. It is
submitted that in this case no reasons were given as to why conviction under Part I of section 304
was not possible. In my view a conviction under Part I would have been more appropriate. In A.
Gopaiah v. State of A.P. r as a result of a sudden quarrel accused beat the deceased with stones
which were lying there. It was held that they could be presumed to have known that' the injuries
caused by them are likely to cause death of the deceased" though each of them while beating the
deceased with stones did not know that they were causing fractures of the ribs. Hence they would
be -liable under section 304, Part II read with section 34.
S 302 ]
In State of U.P. v. Premi,2 respondents 1 and 2, their father and another person entered the
house of Raghubir (PW-3) at about mid-night of 15th-16th January 1977 while he was sleeping
with his wife and children. After removing quilt, the respondents held fast PW-3 and hit him on the
head with the butt of a country made pistol. When Budhwati wife of PW-3 Raghubir came to save
him, she was also assaulted with the butt of pistol. On hearing -their cries Mathuri (PW-4) and
Balwant living in the same compound came, whereupon the accused ran away. PW-3 Raghubir and
his wife were assaulted because PW-3 was cited as a prosecution witness against the respondents
and their father in the case of murder of one Rajinder son of Prem Sahai where they were accused.
The police station is at about 9 kms. from the place of incident, the FIR was lodged at 8.30 a.m. by
PW-3 and Budhwati died at about 9 p.m. on 16th January, 1977.
The trial was held and the Sessions Court convicted the three accused on appreciation of
evidence of PW-3, the police official and the doctor. The fourth person was not identified and thus
could not be apprehended. The source of light for witness to identify accused was not mentioned in
the FIR but the investigating officer had mentioned the existence of bulb in the room. The huj&jand
of deceased made categorical statement that he identified the accused/assaiJ4nit|.
The High Court reversed the judgment of trial court afnf acquitted the accused. Therefore
State preferred an appeal to Supreme Court.
The Supreme Court held that the mere fact that only a single blow was inflicted on the- head
by itself is not enough to alter the conviction from section 302 to section 304. As for the question of
light for enabling PW-3 to identify the assailants is concerned the court held that the presence of
bulb was mentioned in the site plan prepared by police. The statement of PW-3 that electric
connection was taken,a year before relate to date of incident and not date of statement. The
inference that he had admitted about non-availability of electricity is not proper. Further, mere
omission to mention about light in the FIR or in the statement under section 1161, Criminal
Procedure Code was wholly inconsequential. The fact that eyewitness stated that deceased was hit
on the head by butt of the pistol and doctor finding injury inflicted by sharp edged weapon but also
stating that injuries in question could be inflicted with the butt of the revolver and mention of use of
butt of pistol in FIR which was recorded promptly cumulatively show that the medical evidence
cannot be so inconsistent with the ocular evidence as to belie the ocular evidence. Therefore
contradictions in injuries and weapon used are not of much importance so as not to justify
conviction under section 302, Indian Penal Code. During the pendency of appeal the third accused
1 . 1978 Cri. L.J. 798 (A.P.).
2. 2003 Cri. LJ. 1554 (S.C).
died, the appeal thus abated against him but the other two accused were convicted under section
302 of Indian Penal Code.
Section 304, Part I.—In Jai Bhagwan v. State of Haryana,1 the incident arose out of land
disputes between the accused and deceased. The two appellant Jai Bhagwan (A-l) and Sushil (A-3)
were charged to have caused the death, by murderous assault by deadly weapon, of their uncle
Prithvi (deceased) on exhortation given by their mother. Appellant No.2 Anil attempted to murder
Wazir Singh (PW-6). The occurrence took place in land in possession of accused persons and the
deceased along with his son Wazir Singh (PW-6) his daughter-in-law, Smt. Krishna (PW-8) and his
daughter Smt. Chander (PW-5) went to the land to irrigate the Same. The deceased party told A-l
that he would have the turn of water and irrigate the land and after settlement of the dispute A-l
could do it. This was objected to by A-l who stated that he would settle the matter right then. A-l
started abusing the deceased and during altercation his mother Smt. Parwari exhorted the accused to
give a blow. A-l who was armed with ballam dealt a blow with it on the head of the deceased. A-3
gave a blow with knife on the face of the deceased who fell down and then A-2 dealt a blow with
gandasi. Others caused several injuries on his body. In the process PW-5, PW-8 and PW-6 were
also injured and A-2 was responsible for injuries on PW-6. It was held that the acts of the deceased
and party amounts only to criminal tresspass within the meaning of section 441, Indian Penal Code.
Therefore the right of the accused extended only to causing of harm other than death. Accused
persons who were already armed with deadly weapons inflicted fatal injuries causing death of the
deceased. It was not a case of free fight and it cannot be said that they did not intend to cause the
injuries inflicted by them. They exceeded their right of private defence of property under section
104, Indian Penal Code and therefore accused A-l and A-3 were rightly convicted under Part I of
section 304 read with section 34 of the Indian Penal Code but accused A-2 who was convicted
under section 326, Indian Penal Code by the High Court was acquitted because he acted in the
exercise of right of private defence of property under section 104 which justifies any harm other
than death.
In State of U.P v. Lakhmi,2 the respondent was charged with the offence of murder. The trial
court held him guilty under section 302, Indian Penal Code. But the High Court acquitted the
respondent owing to non-reliability of witnesses. The accused admitted the fact that he murdered
his wife but High Court did not attach any importance to it. The Supreme Court on examinatioin
found that because the accused had seen one of the prosecution witnesses near his wife which
enraged him and he murdered his wife. The Supreme Court allowed the benefit of grave and sudden
provocation to the accused and held him liable under section 304, Indian Penal Code and not under
section 302, of Indian Penal Code.
In State of Rajasthan v. Raj Narayan? the accused and the complainant were neighbours and
had dispute over boundary wall. On the date of incident quarrel took place between accused and
complainant. The accused brought a knife from his house and aimed at complainant. The knife hit
1. 1999 Cri. L.J. 1634 (S.C).
2. A.I.R. 1998 S.C. 1007.
3. A.I.R. 1998 S.C. 2060.
the complainant's brother who died consequently. It was held that upon considering the fact, the
accused had no intention to cause death of complainants' brother who had intervened in the quarrel,
hence the conviction of the accused under section 304, Part I would be proper.
In Sukumar Roy v. State of West Bengal,' on 11-8-1984, while the deceased Prafulla Nayak
was collecting seedlings from his land, the accused Phani Bhusan Roy, his son the appellant
Sukumar Roy, his wife Urmila Roy and Tarani Roy, the wife of his elder brother entered into the
land with lathi, bhali etc. in their hands and altercation took place between the parties when Phani
Roy told the deceased that he had purchased the land and as such he would cultivate the land. In the
course of altercation the accused Phani struck Prafulla on his head with lathi and his son Sukumar
hit with a bhali which pierced the abdomen of Prafulla. The local persons on hearing hue and cry
rushed to the place of occurrence but the accused persons ran away in the mean time. Medical
examination revealed 4 inches deep wound in abdomen.
The Supreme Court held that the deceased and his men were unarmed and there was no
provocation on their part and intention of accused to kill or cause injury as is likely to cause death is
clearly established by nature of injury caused to the deceased by piercing ballam 4 inches deep in
abdomen. Therefore, conviction under Section 304, Part I read with Section 34 was held to be
proper.
In Mnrali v. State of Tamil Nadu,2 the deceased Vinayagam purchased 2/3rd shares in the
well as well as the pump set belonging to the accused. On 5-3-1990 at about 6.15 p.m. the deceased
was in his tea shop, the accused went there and stabbed on the stomach of the deceased. When PW-
1 Gopal intervened the latter also suffered injuries. The accused then dragged the deceased inside
the room in the business place and bolted the door from inside and thereafter assaulted on the head
of the deceased with iron pipe and stabbed him indiscriminately with a knife and caused his death.
The door was opened after some time by the accused and he came out of the room with a blood
stained knife in his hand and escaped in spite of resistance. Three witnesses were examined. PW-2
Sundaram stated that the accused came out of the room holding Vinayagam with left hand and
holding the knife in his right hand. The deposition of PW-3 was almost identical. The accused had
also suffered some injuries, therefore it was pleaded on his behalf that he acted in self-defence. It
was held that the accused had gone to the business place of the deceased where occurrence took
place. This shows that accused could be aggressor. Further injuries on the accused were minor in
nature since they were restricted to lender depression and abrasion and thus not sufficient to sustain
the plea of private defence. There was no wound, much less any serious injury which may even
prompt a person to take the most heinous step of committing the murder. Therefore the conviction
of appellant under section 304, Part I, Indian Penal Code and sentence of 5 years' R.I. was not liable
lo be set aside.
In Keshavlal v. State of Madhya Pradesh? the accused appellant came unarmed to the house
of parents of his mistress. He came without any pre-planning, picked up a kitchen knife upon a
sudden quarrel and inflicted a single injury on person of deceased in heat of passion. He did not
take any undue advantage during occurrence. All eye witnesses deposed that injury was caused by
accused from behind on body of deceased resulting in cutting of vital pari of body. Report of
Chemical Analyser clearly showed that clothes of accused and weapon of offence were stained with
1. 2006 Cri. L.J. 4776 (S.C).
2. 2001 Cri. L.J. 476 (S.C).
3. 2002 Cri. L.J. 1776 (S.C).
human blood. It was held that only because blood group was not ascertained and according to F.I.R.
injury allegedly was inflicted on the nose of deceased it cannot form basis to discard evidence of
witnesses which was inspiring confidence and accused was entitled to benefit of exception 4 of
section 300, Indian Penal Code. He was, therefore, liable to be convicted under section 304, Part I
and not under section 302. The order of the High Court convicting accused was proper.
In Suresh Sita Ram Surve v. State of Maharashtra? there was enmity between the deceased
and the family of appellant. A day before the occurrence the accused 1 to 6 hurled abuses at the
deceased and his family members in front of the house. On 12th February, 1981 at about 8.30 p.m.
S 302 ]
as the deceased was entering the bye-lane reaching to his chawl, the accused persons were pelting
stones on the chawls and also hitting windows with sticks. Soon thereafter they surrounded the
deceased Prakash Khatkar and began to assault him. He was initially assaulted with Farsi by the
first accused, brother of the appellant, when he fell at the steps leading to Chawl, the appellant
pierced Gupti into the stomach of deceased. There were 9 other accused and the deceased was
assaulted by other accused with the weapons in their hands and when the family members of
deceased intervened they were also not spared. The accused assaulted the brother of deceased (PW-
6), his mother (PW-3), his sister (PW-4) and his brother's wife (PW-5) inside the house. PW-7 who
was the neighbour was the last person to be attacked by the appellant. PW-2 the brother of deceased
took the deceased and other injured to the hospital along with a constable (PW-9) and lodged FIR
on the same night. Post-mortem was conducted which revealed cause of death by four injuries on
chest and abdomen by Gupti.
it was held that in view of the consistent evidence of all witnesses, the appellant pierced
Gupti into stomach and abdomen of deceased. They witnessed only one injury being inflicted by
appellant by Gupti. However, evidence of some of the witnesses reveal that accused surrounded
deceased and more than one person was armed with Gupti. Two Guptis were recovered at the place
near the incident. Under such circumstances it cannot be inferred that appellant caused all the
severe injuries or the fatal injury. Therefore, appellant himself cannot be said to have intended to
cause death. Hence sentence of appellant was modified and he was convicted under section 304,
Part I and not under Section 302, Indian Penal Code.
In Pramod Kumar v. State of U.P..2 the deceased aged about 18 years was employed in
printing section of a mill and the accused was also employed in the same section. The workers used
to observe lunch between 11.30 a.m. and 12.30 p.m. On 24-11-1979 at about 11.45 a.m. there was a
quarrel between the deceased and accused opposite the labour gate of the mill. The accused
assaulted Malkhan Singh with a knife on the chest and pushed him. Malkhan Singh fell bleeding.
Raj Bahadur PW-2 brother of deceased had brought his meals at that time on a cycle. Lai Singh
PW-3 and Rakam Singh PW-4 had their tea shops opposite the labour gate. These persons with
Daya Ram and Ram Murti chased the accused who ran towards eastern side. At a distance of about
400 yards Satpal PW-5 and Bhopal beat and took down the accused. The accused had thrown the
knife in a Nala while fleeing. Accused also received nine injuries including a bleeding lacerated
wound on the right side of his head.
It was held that in view of the facts of the case possibility cannot be ruled out that in the
quarrel the deceased had first hit the accused on his head whereafter accused stabbed him. The case
is covered by exception 2 of section 300, Indian
1. 2003 Cri. L.J. 475 (S.C).
2. 2003 Cri. L.J. 2718 (Alld.).
Penal Code as the accused exceeded his right of private defence in causing the death of the deceased. Further the
act of accused in inflicting single forceful knife blow on the chest of deceased shall be imputed as the intention
of causing such bodily injury to him as was likely to cause his death. Therefore conviction of the accused under
section 302 was altered to one under section 304, Part I of the Indian Penal Code.
In Uday Kumar Pandharinath Jadhav alias Munna v. State of Maharashtra? scuffle took place between
accused and deceased. Deceased was not only Karate expert but also armed with knife. Accused apprehending
injury at hands of deceased admittedly inflicted three injuries to deceased. Fatal injury caused on chest had
penetrated deep into body. In view of the above facts conviction of accused under Section 302 IP. Code was
modified to one under Section 304 Part I, I.P.C.
In State of Madhya Pradesh v. Ghanshyam Singh,2 one Devi Singh (PW-1) with his sister Sushilabai
(PW-3), her husband and his brother Maharaj Singh went to bus stand to see off Sushilabai and her husband. At
the bus stand all the six accused persons reached there with different weapons in their hands. Accused
Ghanshyam Singh had a gun, Sitaram had a farsa, Harnam Singh and Diwan Singh had lathis. All of them
surrounded Devi Singh and jointly assaulted him. Sitaram gave a farsa blow on the backside of his head. Amar
Singh gave a lathi blow on his head which however fell on the hand when he raised a cry for heIP. Thereafter,
Ghanshyam Singh fired at him but the bullet missed. Hearing the alarm Hanuman Singh (PW-4), father of Devi
Singh deceased, Sarnam Singh who was his uncle and Jaswant Singh (PW-5) came on the spot. Accused
Ghanshyam Singh then fired at Jaswant Singh and he received injury on the arm. He fired two shots thereafter
which hit Sarnam Singh on his leg and abdomen. Harbir Singh gave a farsa blow on leg of Hanumant Singh
(PW-4). Udham Singh (PW-12), Jagannath and Banjara were at that time at motor stand and they tried to save
the assault. Subsequently Sarnam Singh died. All the six accused persons including Ghanshyam Singh were
tried for offences under section 302 read with section 149, Indian Penal Code, Section 148, section 307 read
with section 149, Indian Penal Code. Accused persons pleaded innocence and false implication due to strained
relationship. They claimed to have been assaulted by the deceased and his companions. Ghanshyam Singh was
found guilty under sections 302 and 307 read with sections 148 and 149 and other accused persons were
convicted under section 302 read with section 149 of Indian Penal Code. They were also convicted under
section 148 and section 307 read with section 149 of Indian Penal Code. An appeal was preferred before the
High Court and during the pendency of appeal accused No. 6 Diwan Singh died. The High Court found that
Ghanshyam was liable under section 304, Part I because his case fell under exception 4 of section 300 as he
fired in the course of a sudden fight and all other accused persons were held guilty under section 323 of Indian
Penal Code. Special appeal by all accused other than the present respondent was dismissed by the Supreme
Court.
In the present appeal it was held that in view of the purpose for which a sentence is imposed, it cannot be
laid down as a rule of universal application that long passage of time in all cases would justify minimal
sentence. Long pendency of a matter by itself could not justify lesser sentence.
It was further held that undue sympathy to impose inadequate sentence would do more harm to the
justice system to undermine the public confidence in the efficacy of law and society could not long endure under
such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature
of the offence and the manner in which it was executed or committed etc.
It was also held that after giving due consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating
1. (2008) 3 Cri. L.J. 2627

(S.C).
factors and circumstances in which a crime is committed are to be delicately balanced on the basis
of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is
indeed a difficult task. In the absence of any fool proof formula which may provide any basis for
reasonable criteria to correctly assess various circumstances germane to the consideration of gravity
of crime, the discretionary judgment in the facts of each case, is the only way in which such
judgment may be equitably distinguished.
The Supreme Court continued to hold that the punishment to be awarded for a . crime must
not be irrelevant but it should conform to and be consistent with the atrocity and brutality with
which the crime is warranting public abhorrence and it should respond to society's cry for justice
against the criminal. If for extremely heinous crime of murder perpetrated in a very brutal manner
without any provocation, most deterrent punishment is not given, the case of deterrent punishment
will lose its relevance. Hence, even on a liberal approach, custodial sentence for 6 years for an
offence under section 304, Part I was held to serve the ends of justice.
It was held in Chanda v. State of U.P.,' that when an offence is committed in prosecution of
the common object, it would generally be an offence which the members of the unlawful assembly
knew was likely to be committed in prosecution of the common object, that, however, does not
make the converse proposition true. There may be cases which would come within the second part
but not within the first part of Section 149. The distinction between the two parts of Section 149
cannot be ignored or obliterated. In every case it would be an issue to be determined whether the
offence committed falls within the first part or it was an offence such as the members of the
assembly knew to be likely lo be committed in prosecution of the common object and falls within
the second part. However, there may be cases which would be within first part of the offences
committed in prosecution of the common object would also be generally, if not always, within the
second part, namely offences which the parties knew to be likely committed in prosecution of the
common object.
It was further held that where a murder was committed by unlawful assembly comprising of
eight members and accused who had fired a fatal gun shot was acquitted on some technical ground
and appellant accused was proved to have fired a shot though it missed the deceased and pellets
were found by doctor inside body of the deceased, it was held that Part II of Section 149 would be
applicable and appellant/accused knew that there was common object of killing the deceased and
alteration of conviction from Section 300/149 to Section 304, Part 1/149 was justified.
In Prakash v. State of Madhya Pradesh,2 accused persons armed with lathis chased deceased
who was unarmed. Some witnesses intervened and tried to pacify accused but the appellant and
other co-accused did not pay any heed. The accused jumped over a hedge to reach near deceased
and immobilised deceased by attacking his legs. Thereafter co- accused persons caused other
injuries including the fatal one. They were convicted by Trial Court under Section 304, Part I read
with Section 34 IP. Code. Inconsistency in the opinion by doctors was pleaded by the defence as the
deceased was first examined by doctor of Primary Health Centre who noticed only a single injury
on the head of the deceased. But the
1. 2004 Cri. L.J. 2536 (S.C).
2. 2007 Cri. L.J. 798 (S.C).
doctor performing autopsy, noticed injuries on head, on back and on left shoulder. The Supreme
Court held that the inconsistency between medical opinions was not material since while giving
emergency treatment at Primary Health Centre doctor must have paid entire attention to only head
injury. It was held that from the facts and circumstances stated above the common intention of
accused persons is evident and his conviction under Section 304, part I read with Section 34 IP.
Code is proper.
In Lachman Singh v. State of Haryana,1 there was exchange of abuses between accused L, D
and others and the deceased party over issue of flow of water on roof of kitchen. Accused D got
infuriated and all of a sudden asked his son L to bring revolver from inside as the other side
members were always harassing them. L accordingly brought revolver from inside. Thereafter D
S 302 ]
shouted shoot them, whereupon accused L fired and shot hit deceased. Thereafter accused D took
revolver from accused L and started firing shots, which hit other members of deceased party. There
was cogent evidence of injured witnesses about the role played by two of the above accused L and
D. It was held that since parties have worked themselves into a fury on account of verbal altercation
accused L was held liable to be convicted under Section 304 Part I and Section 307 read with
Section 34 and not under Section 302. Accused D was convicted under Section 304 Part I read with
Section 34 Indian Penal Code.
In Gurdev Raj v. State of Punjab,2 one Rajani Bala was married to appellant Gurdev Raj
about one year before the incident. Gurdev Raj was a labour and his relation with his wife were not
cordial as he used to quarrel with his wife on petty matters. Because of frequent quarrels Rajani was
living with her parents. On July 5, 1999 the date of incident Rajani Bala received a message that her
husband was not well. Thereafter, Rajani along with her mother Bhusan Lata and brother's wife
Pooja came to see her husband, the appellant. In the evening on that day a quarrel ensued between
Rajani Bala and her mother Bhusan Bala on the one side and appellant Gurdev Raj. The appellant
got angry and picked up an iron mongli lying inside the room and administered blows on the head
of his mother-in-law, Bhusan Lata. As a result of the injuries Bhusan Lata died. Pooja and Rajani
raised hue and cry but no body from the neighbourhood came to their rescue as they were aware of
strained relations between husband and wife. Gurdev Raj took Mongli with him and fled away
meanwhile. Thereafter the two ladies left the dead body locked the house and went to inform father
of Rajani Bala. Three injuries were sustained by deceased. Medical evidence shows that two of
them which were sufficient to cause death could be caused by one blow.
It was held that in view of totality of circumstances the appellant ought to be convicted for
offence under Section 324, Part I, I.P.C. and not for offence of murder under Section 300 as there
was no intention to cause death.
It was held in Phulia Tudu v. State of Bihar,3 that it cannot be said as a rule of universal
application that whenever one blow is given Section 300, I.P.C. is ruled out. It would depend upon
the facts of each case. The weapon used, size of the weapon, place where the assault took place,
background facts leading to the assault, part of the body where the assault was given are some of
the factors to be considered. In the instant case, admittedly one blow was inflicted by the accused
with a small stick on deceased, and the place where assault took place was dimly lit, therefore,
inevitable conclusion is that the case is covered by Section 304, Part I and not Section 302 of Indian
Penal Code.
1. 2006 Cri. L.J. 4041 (S.C).

2. 2008 I Cri. L.J. 382 (S.C).
3. 2007 IV Cri. L.J. 4690 (S.C).
In Byvarapu Raju v. State of Andhra Pradesh,1 deceased came in intoxicant condition,

abused his son and mother. He also beat mother of his accused son and mother. In the course of
quarrel accused hacked his father, the deceased. It was held that benefit of Exception 4 to Section
300, I.P.C. is available to accused as he has caused death of deceased in sudden fight without taking
undue advantage.
It was also observed that the help of Exception 4 to Section 300, I.P.C. can be invoked if
death is caused without premeditation, in a sudden fight without the offender having taken undue
advantage or acted in cruel or unusual manner and the fight must have been with the person killed.
To bring a case within the Exception 4 all the ingredients mentioned in it must be found. A fight is
a combat between two or more persons whether with or without weapons. It is not possible to
enumerate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of
fact and whether a quarrel is sudden or not must depend upon the proved facts of each case. For the
application of Exception 4 it is not sufficient to show that there was a sudden quarrel and there was
no premeditation, it must further be shown that the offender has not taken undue advantage or acted
in cruel or unusual manner. The expression undue advantage means "unfair advantage."
Main distinction between Exceptions 1 and 4 to Section 300, I.P.C. is that while in Exception
1 there is total loss of self control, in Exception 4 there is heat of passion which clouds one's
sobriety.
Section 304, Part II.—In Tholan v. State of Tamil Nadu,2 the accused started remonstrations
using filthy language against certain organisers of a chit fund who had no connection with the
deceased in front of the house of the deceased. The deceased came out of his house and asked the
accused to go away. The accused on spur of moment gave only one blow with knife to the deceased
and pushed him to some distance. The accused could not be attributed on these facts of requisite
intention to commit murder though he could be attributed with knowledge that he was likely to
cause injury which was likely to cause death. He was held guilty under this part of the section.
In Jagat Singh and another v. State,2, a disputeârOse between the appellants and the family of
the deceased while watching television. Next day when the " deceased with his family was going to
lodge a report to the police, the accused attacked them at the bus stand of the village. The deceased
was given a good beating and when he fell down on the ground, the appellant sat on his chest and he
with one Subh Ram twisted the neck of the deceased. He was taken to the hospital where doctors
declared him dead. The accused were held guilty under this provision because in the circumstances
it could be said safely that they had the knowledge that their act was likely to cause death although
they had no intention to kill him.
In Sandhya Jadhav v. State of Maharashtra,4 the accused persons are tenants of complainant
landlord. Landlord demanded rent from tenants and the accused persons assaulted the landlord.
When nephew of landlord tried to intervene he was also given knife blow resulting in his death. The
Supreme Court held that exception 4 to Section 300 has full application and conviction of the
accused under Section. 302 is liable to be altered to Section 304, Part II as neither there was
intention to kill nor injuries inflicted were sufficient in the ordinary course of nature to cause death.
There was only knowledge that injury was likely to cause death.
1. 2007 III Cri. L.J. 3204 (S.C).
2. 1984 Cri. L.J. 478 (S.C.)
3. 1984 Cri. L.J. 1551 (Delhi).
4. 2006 Cri. L.J. 2111 (S.C).
It was further pointed out that a solitary blow causing death does not always rule out applicability of
Section 302. But fact situation has to be considered in each case.
In Budhilal v. State of Uttarakhand,1 accused husband killed his second wife as he suspected illicit
relationship of deceased with the guest Jaspal who had witnessed accused sitting on chest of deceased and
assaulting her with hands. On being questioned by Jaspal as to why he was doing so, Budhilal told him that he
was telling his wife to behave. Appellant asked Jaspal to sleep in another room. Next morning Budhilal told that
his wife died of pain in her stomach. Jaspal informed the relatives of Budhilal about the death of appellant's wife
Jasu Devi. Post-mortem report revealed that Jasu Devi died due to suffocation as a result of obstruction in
respiration passage. Some ante-mortem injuries were also found on the body of deceased. After trial, appellant
was held liable for committing culpable homicide and punished under Section 304 Part II.
In this case it was observed that in the Scheme of IPC culpable homicide is a genus and murder is its
specie. All murders are culpable homicide but not vice-versa. Speaking generally, 'culpable homicide' sans
special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing
punishment proportionate to the gravity of the generic offence, the I.P.C. practically recognises three degrees of
culpable homicide. The first is what may be called, 'culpable homicide of the first degree'. This is the general
form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable
homicide of the Second degree'. This is punishable under the first part of Section 304. Then there is 'culpable
homicide of third degree'. This is the lowest type of culpable homicide and the punishment provided for it is the
lowest among the punishments provided for all the three degrees. This is punishable under the second part of
Section 304 IP. Code.
In Maniyan v. State of Kerala,2 the accused Maniyan added poison to toddy in pot on coconut tree with a
view to prevent pilfering of toddy. The deceased Chandikunju was a tea-shopowner. He had gone to his father's
house and while coming back from his family house he happened to pass through a field where some of the
coconut trees were used for toddy tapping. He stealthly consumed some toddy from an earthen pot. By about
10.30 p.m. he reached house and retired to his bedroom. He vomited vehemently in the night and was admitted
to the hospital in the morning. He died the next day. It was pleaded on behalf of the defence that this case is
covered by section 304-A but the High Court did not agree with this contention. The Court held that the offence
fell under Part II of section 304 because sufficient quantity of poisonous substance was mixed with the toddy. It
was a kind of insecticide and since the accused was an agriculturist he must have been aware about the potency
of this insecticide. Accused added poison to the toddy without caring for the possible consequence of potential
victims of his negligence. The accused had the knowledge that his act was likely to cause death of any person
who consumed toddy.
In Hari Shankar v. State of Rajasthan,1 while the appellant deceased Bheem Singh and one Shah Megan
were taking tea, an exchange of words took place between the appellant and the deceased on account of the
demand made by the appellant for returning Rs. 50,000/- which he had advanced to the deceased. The appellant
became angry and picked up the burning kerosene wick-stove and threw it on the deceased. Kerosene from the
stove spilled over the clothes of the deceased and as the burning wicks came in contact with his clothes they
caught fire. The deceased ultimately died as a result of the burns received by him. He was convicted by the trial
court under section 302, Indian Penal Code. It was held by the Supreme Court that since the appellant had
thrown a burning stove on the deceased he would have known that his act was likely to cause bums resulting in
death. Therefore in view of the facts and circumstances of the case he can be said to have committed an offence
under section 304, Part II, Indian Penal Code.
In State of M.P. v. Deshraj,1 on 25-5-1980 there was an exchange of words between Harbhan
(Pw-5) and Pratap Singh Thakur over payment of fare relating to hire of bullock cart. According to
1. (2009) I Cri. L.J. 360
(S.C).
2. 1990 Cri. L.J. 2515
(Kerala).
informant the rent was fixed at Rs. 15/- but Pratap Singh Thakur wanted to pay Rs. 13/-. When the
exchange of words was going on, the accused persons armed with various weapons arrived there
and accused Balkishan hit on the head of the deceased. The other accused assaulted him with
various weapons. The deceased ran inside the house for protection but the accused persons
continued the assault. When Brijbhan (Pw-10) and Bina (Pw-9) tried to rescue accused, Maharaj
Singh struck on the head of Bina with Farsa. Bhagwan Das and Badhraj Struck her with lathies.
Maharaj Singh gave a farsa blow on the head of the informant. Bhagwan Das and Badhraj struck on
S 302 ]
the hand with lathi on his left arm while accused Holka struck lathi on the right arm. Jagna struck
him on the shoulder and he fell down. Even then accused persons inflicted lathi blows. Accused
Ram Das also assaulted Brijbhan (Pw -10). On hearing his cries several villagers gathered. They also
witnessed the assaults. Deceased died instantaneously and the informant became unconscious. The
first information report was lodged on 26-5-1980 at 8.15 a.m.
It was held that the fight between the two parties resulting in death and injuries to witnesses
was the result of a sudden quarrel, therefore, it would be appropriate to convict the respondents 2 to
10 under section 304 Part II of I.P.C.
In K. Rama Krishnan Unilhan v. State of Kerala,2 the relationship between the accused and
the deceased Kesava Pillai was strained as the deceased had helped one Velu Pillai with whom the
accused had some property dispute. On 17-4-1985 at 11 p.m. while PW-1 was sitting on the
verandah of a shop near his own house, the accused appellant and his wife passed by that way. As it
was dark, PW-1 could not recognise them and inquired about their identity, wherupon the appellant
used some abusive language and PW-1 in turn also abused the appellant. On this score there was
some scuffle but on dissuation of the wife of the appellant, he left the place. Few minutes later
while PW-1 reached the door step of his house, the appellant accompanied by his son, (the acquitted
accused) reached there and the second accused dealt a blow on the head of PW-1 with a stick and
then caught hold of him and then the present appellant stabbed him with a knife. On hearing hullah,
the sister of PW-1 rushed to the scene of occurrence. At that stage when father of PW-1 reached the
scene of occurrence the appelant stabbed him on his abdomen on account of which he ultimately
died in the hospital on the next day at 11.30 a.m. Statement of PW-1 was recorded at 1.15 a.m.
which was treated as F.I.R. Three eye-witnesses PW-1 to PW-3 were examined by the prosecution.
Of these PW-3 is the daughter of the deceased and PW-2 is a neighbour. PW-8 is the doctor who
had examined accused No. 1, PW-9 is the doctor who conducted post-mortem examination of
deceased Kesava Pillai. PW-14 is the doctor who attended the deceased Kesava Pillai as well as
PW-1 in the Medical College Hospital. The defence gave a different version of the incident.
According to defence PW-1 had abused them on the road but the appellant came away and while he
reached near the house of PW-1, deceased Kesava Pillai suddenly attacked him with a knife.
Appellant attempted to escape but stones were thrown by PW-1-and his father. While the appellant
had caught hold of the hand of deceased Kesava Pillai who had a knife in his hand, a scuffle ensued
and Kesava Pillai fell down and sustained the injuries on his abdomen on that score. The Sessions
Court scrutinised the evidence of PW-1 to PW-3 and the medical evidence and came to the
conclusion that the story of alleged cause of injury on PW-1 stands discredited by medical evidence
of PW-14. The Sessions Judge further concluded that accused No. 2 was never present at the scene
of occurrence and was falsely implicated. The deceased Kesava Pillai died as a result of penetrating
injuries sustained on his abdomen and the death is homicidal in nature. The trial court further said
that when the witnesses have tried to falsely implicate accused No. 2 and on account of
inconsistencies between their statements, the doubt is created in the mind of the court and it must be
held that the prosecution failed to prove charges beyond reasonable doubt and therefore both the
accused are acquitted. The High Court affirmed the order of acquittal of accused No. 2 Sreenivasan.
But on reappreciating the evidence of the eye-witnesses and relying upon the same held that the
1. 2004 Cri. L.J. 1415 (S.C).
2. 1999 Cri. L.J. 2101 (S.C).
prosecution has succeeded in proving beyond reasonable doubt that the accused appellant had
inflicted stab injury on the deceased besides inflicting injuries on PW-1 and therefore he is liable
for being convicted under section 302, as well as under section 324, Indian Penal Code. He was,
therefore sentenced to imprisonment for life. The matter was considered in appeal by the Supreme
Court. It was held that the charge of murder against the appellant on the ground that he gave a
stabbing blow on the deceased on a vital part of the body by means of a knife has been consistently
narrated by the three eye-witnesses. There is no exaggeration in their version. Thus the basic
prosecution case as unfolded through testimony of the three eye-witnesses is fully corroborated by
the medical evidence of the two doctors. Therefore the learned Sessions Judge was not justified in
discarding this part of the prosecution case and in acquitting the appellant the High Court was fully
entitled to reappreciate the evidence of these witnesses and record its own conclusion. We have
ourselves scruitinised the evidence and we are of the considered opinion that the reasons adduced
by the trial court in discarding the evidence are not sound. It was manifestly erroneous and the High
Court was duty bound to interfere with an order of acquittal.
It was further observed that it is established beyond reasonable doubt that the appellant had
given one blow which was quite severe, as a result of which the intestine had protruded out. It is,
however, crystal clear that the appellant had no animosity against the deceased and he was involved
because of the altercations with PW-1. The Scenario in which the appellant has given one blow to
the deceased does not show that it was either with the intention of causing murder or he had the
requisite knowledge that the death would otherwise be the inevitable result. In such situation it was
held that the accused did not commit the offence under section 302, but under section 304, Part II,
Indian Penal Code.
In Ram Prakash Singh v. State of Bihar,1 the appellant and deceased were friends and
because of some misunderstanding their relations became strained. One day, there was hot
exchange of words between the two and the appellant in a heat and passion inflicted a knife injury
on the deceased who died. The doctor held that the injury was not sufficient to cause death in
ordinary course. But the Sessions Court held him guilty under section 302, and the same was upheld
by Patna High Court.
But the Supreme Court while partially allowing the appeal held that he has not committed the
offence under section 302 but under section 304, Part II. As the homicide was done in heat and
passion so it will be culpable homicide not amounting to murder.
In Sudhir Samanta v. State of Bengal? there was a dispute between the accused and the
deceased over a piece of land. The accused persons came to land and instructed the deceased's
father not to harvest the paddy till the dispute is settled through adjudication. But the deceased's
father paid no heed resulting in hot exchange of words. One of the accused gave a lathi blow on the
head of deceased and other accused on other parts. The deceased became unconscious
1. A.I.R. 1998 S.C. 1190.

2. A.I.R. 1998 S.C. 289.
S. 304 J OF OFFENCES AFFECTING THE HUMAN BODY 428
and regained it after some time, then again he became unconscious and finally died. It was held that
the accused had no intention to cause death or such bodily injury as is likely to cause death, but the
knowledge can be imputed that such use of force can cause death. So they can't be held liable under
section 304, Part I but under section 304, Part II of Indian Penal Code.
In Tarsem Singh v. State of Punjab? the appellant and others caused death of Haripur Singh
and Bharpur Singh. The appellant and 12 others were charge-sheeted for various offences, principal
offence among them being one punishable under section 302, Indian Penal Code. The appellant's
group and the complainant, Nazar Singh's group had some dispute in regard to the right to bid for
certain shamlat land which was being auctioned on 04-6-1987, the date of incident. The appellant
and other accused persons assaulted complainants' group and caused injuries to various persons. As
a result of injuries two persons as abovenamed died. The trial court convicted 9 of the accused
persons for offences punishable under section 304, Part II and sentenced them to undergo R.I. for a
period of 8 years and to pay a fine of Rs. 1000/- each. On appeal the sentence was reduced by the
High Court to 5 years' R.I. by taking humane approach. The injuries caused to deceased were found
severe enough to cause death in ordinary course. Accused also had knowledge that injuries inflicted
were likely to cause death. Five of the injuries inflicted over left ear caused fracture of left parietal
and left temporal bone extending to frontal and occipital region. It was held by the Supreme Court
that such injury is not contemplated by section 325 and therefore conviction of accused under
section 304, Part II was proper.
The learned counsel of the defence argued for reduction of sentence before the Supreme
Court but the Supreme Court held that the maximum sentence awardable under section 304, Part II
is imprisonment for 10 years, the High -Court taking a humane view of the incident had already
reduced the sentence from 8 years to 5 years. Therefore, considering the gravity of the offence, as
one of the injuries was severe enough to cause death and the appellant must have had the knowledge
of it, the Supreme Court declined to further reduce the sentence.
In Manke Ram v. State of Haryana? the appellant was in-charge of a police station and
deceased was working as Head Constable under him. On 17th November, 1993 appellant came back
from his duty at about 9.30 p.m. At that time Suraj Mai, the deceased was standing near the quarter
of appellant in the company of his nephew PW-5. On seeing them the appellant invited the deceased
for a drink in his room. The deceased went inside his room leaving his nephew PW-5 outside. While
the appellant and Surajmal were drinking in the room PW-5 Rajpal went into the room and asked
Suraj Mai to get up so that they may have their dinner. Suraj Mai acceded to his request because of
which the appellant got annoyed and abused the deceased in filthy language to which the deceased
objected which further annoyed the appellant and he picking his service revolver fired two shots at
Suraj Mai. The two grappled with each other and came outside the room. On hearing the sound of
gunshots Satbir Singh (PW-6), Hari Ram (PW-9) and Ram Kumar came rushing out and
overpowered the accused and snatched the weapon. Suraj Mai died in consequence of the injuries. It
was held that from the circumstances of the case it is clear that drinking was by mutual consent and
fight started because of intervention of PW-5 Raj Pal. The incident in question took place in a
sudden fight in the heat of passion. Keeping in view the fact that both the appellant and deceased
had consumed considerable amount of alcohol as.is established from the evidence of doctor and the
service revolver being next to the place where the fight took place and was not kept there by planned
1. 2002 Cri. L.J. 1021 (S.C).
2. 2003 Cri. L.J. 2328 (S.C).
act by the appellant, it cannot be ruled out that the shots were fired not with an intention of taking
any undue advantage by the appellant. It is probable that in an inebriated condition, the appellant
used the service revolver because of physical fight between the two. Therefore the appellant was
guilty of an offence punishable under section 304, Part II of Indian Penal Code.
In Ruli Ram v. State of Haryana,1 two young boys namely, Manohar aged about 10 years and
Satish aged about 12 years were playing by the side of a pond. Both the boys were thrown by the
two accused appellants Ruli Ram and his son Ramesh in the pond. Effort was made to take out
victims and save them but they were taken to hospital and declared dead. Datta Ram PW-2 lodged
first information report. The act was stated to be on account of refusal by PW-2 and his family
members to vote in favour of the candidate supported by the accused in Panchayat election which
was being held the same day. As a sequel to the aforesaid incident, there were allegations of booth
capturing and poll violence. The intention of the accused was found to be not to commit murder but
to create disturbances at the polling station in order to divert attention of the crowd collected so that
the booth capturing would be facilitated. No injuries were caused to the deceased boys before they
were thrown in the pond. No attempt was made even to strangulate them. It was, therefore, held that
the accused could be attributed the knowledge that the natural and proper consequences of their acts
[ S. 304
was likely to cause death. In the facts and circumstances of the case proper provision to be applied is
section 304, Part II and not section 300, Indian Penal Code.
In Uday Singh v. State of U.R,2 fight between two parties started all of a sudden as a result of
obstruction caused for digging of the foundation in the portion fallen in share of deceased and there
was no evidence to show that the accused attacked the deceased with deadly or dangerous arms. It
was only a hand to fist fight and in that the two attacked held neck of the deceased with such force
that it ultimately resulted in strangulation and death of deceased. Under these circumstances
common intention to kill cannot be inferred. More so when it was very difficult to coneeive as to
how much pressure was applied by which accused on the deceased's neck so as to cause death.
When it cannot be definitely concluded as to who actually inflicted fatal injury as evidence on
record disclosed that both accused strangled the deceased which action is part of sudden unarmed
fight nor can it be concluded that the accused had an intention to cause death of deceased or to cause
such bodily injury as was likely to cause death, though knowledge could be attributed to them that
such act was likely to cause death, the two accused would be guilty of culpable homicide not
amounting to murder. Hence accused would be convicted for offence under section 304, Part II and
not under section 302 read with section 34.
In State of Karnataka v. Mohamed Nazeer? the respondent accused went to the house of
deceased Aminuddin at about 8.30 p.m. He caught hold of the baifian of deceased, lifted him up on
the right cheek and back portion of the neck. On hearing the commotion, two neighbours (PW-6 and
PW-7) came. The respondent then stated to Aminuddin that he would not leave him alive and kicked
1. 2002 Cri. L.J. 4337 (S.C).

2. 2002 Cri. L.J. 4655 (S.C).
3. 2003 Cri. L.J. 1240 (S.C).
him with the right knee on his private part. Aminuddin fell down saying "O God, I am dying" and he
died there. Respondent tried to run away but was caught by neighbours and handed over to police.
The post-mortem report showed that Aminuddin died due to neurogenic shock resulting from injury
to private parts. The doctor opined that injury was sufficient to cause immediate death. It was held
that the statement of accused that he would not leave the deceased alive followed by kick shows that
he had knowledge that it was likely to cause death. The trial court convicted the accused under
section 304, Part II but the High Court had altered it to section 323, Indian Penal Code. But the
Supreme Court set aside the judgment of the High Court and held that since the State has not chosen
to file any appeal against the judgment of trial court it did not interfere with the conviction of
accused for offence under section 304 Part II of Indian Penal Code.
In Thankachcm v. State o f Kerala? accused in drunken condition was quarreling with his
wife when his son intervened. On son's intervention he picked up a chopper and inflicted cut injury
on the leg of son. Son died due to excessive bleeding. It was held that under these circumstances
accused cannot be said to have intended to cause injury to cause death or to cause injury which he
knew to be likely to cause death and as such accused cannot be convicted for committing murder.
Therefore his conviction was altered by the Supreme Court from Section 300 to Section 304, Part II.
In Sellappan v. State o f Tamil Nadu? the accused appellant was nurturing grievance against
deceased and his family members. Accused beat deceased on head two or three times with stick. On
account of the said injuries inflicted by the accused, deceased fell down and was later on removed to
hospital where he was treated by various doctors. Instead of the said treatment the deceased died in
hospital subsequently. It was pleaded by the accused that with proper treatment life of deceased
could have been saved. The Supreme Court in view of Explanation to Section 299 Indian Penal
Code held the said plea as not tenable and found the accused appellant responsible for death of the
deceased and held liable to be convicted under Section 304, Part II and not under Section 302 Indian
Penal Code.
In Cheiiopalli Cieliminabi v. State of A.P.? on 25th May, 1991 there was an altercation
between the wife of the first appellant and the wife of the deceased in regard to taking water from
the tap. This altercation turned out to a fight in which members of both the families joined and in the
said fight four accused persons stabbed the deceased Mahaboob Saheb on the abdomen and chest.
The deceased was then taken to Government Hospital at Madanapalle where doctor examined the
deceased and sent the intimation of crime to the police station Madanapalle. The accused persons
also reached the hospital at the same time when deceased reached as they have also suffered injuries.
On receipt of the information Head Constable (PW-10) came to the hospital and recorded statement
of deceased. The Doctor of the hospital then referred the deceased to Tirupati Hospital for expert
treatment and accordingly he was shifted to that hospital. Since the incident had taken place within
the jurisdiction of another police station the Head Constable PW-10 informed the concerned police
station at Mudiredu where a case under section 324 was registered. The Sub-Inspector (PW-11) of
Mudiredu recorded another statement of deceased at Tirupati hospital. The deceased died in Tirupati
Hospital on 27-5-1991 and therefore on receiving the said information PW-11 changed the offence
into section 302, Indian Penal Code.
1. 2005 Cri. L.J. 4130 (S.C).

2. 2007 Cri. L.J. 1442 (S.C).
3. 2003 Cri. L.J. 1246 (S.C).
It was held that four accused persons arc staled to have stabbed the deceased whereas one
weapon was recovered. Therefore, the inference that all the four accused have stabbed deceased
cannot be drawn. More so when the accused persons and deceased reached the hospital at the same
time and prosecution failed to explain injuries suffered by the accused and all other eye-witnesses,
i.e., Panch witnesses including wife and son of deceased turned hostile, no such inference can be
drawn.
It was further observed that since altercation started between two ladies and oilier family
members joined the fight and somebody from amongst them stabbed the deceased, fight cannot be
said to be pre-planned and as such there was no material to show common intention. The conviction
of accused appellants was mainly based on dying declaration which was not found to be genuine by
the court. Therefore, it cannot be relied on for basing conviction. The conviction was, therefore, set
aside and appellants were acquitted.1
In Hafiz v. State of U.P.,1 the occurrence took place in the field of the deceased. Accused
pleaded that deceased was cutting bazra crop on the field of the accused and used sickle on accused
and thus he caused injuries to deceased in private defence. The sickle was not found on the place of
occurrence. Co-accused persons had beaten deceased with lathis. The plea of private defence raised
by accused was not proved and accused persons were held to have motive to pick up quarrel with
deceased. However, the incident took place on spur of the moment, therefore, accused was held
guilty under Section 304 Part II and not under Section 300 IPC. As for the co-accused are concerned
they were armed with lathis with the common intention of threatening the deceased and his brother
and causing injuries upon deceased. Therefore, co-accused were held guilty of commission of
offence under Section 326/34 and sentenced to three years imprisonment.
304-A. 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 extend to two years, or with fine, or with both.
COMMENT
For the application of this section it is necessary that death is caused by doing a rash or
negligent act and such act must not amount to culpable homicide. Thus this section shall apply
where there is neither any intention to cause death nor knowledge that the act would in all
probability cause death.3 To impose criminal liability under this section it is necessary that the death
should have been the direct result of a rash or negligent act of the accused, and that act must be the
proximate and efficient cause without the intervention of another's negligence. It must be the causa
causans; it is not enough that it may have been the causa sine qua non.4 Culpable rashness is acting
with consciousness that the mischievous and the illegal consequence may follow but with the hope
that they will not and often with the belief that the actor has taken sufficient precautions to prevent
their happening.5 Culpable negligence is acting without the consciousness that the illegal and
mischievous effect will follow, but in circumstances which show that the actor has not exercised the
caution required of him, and thai if he had he would have had the consciousness. The imputability
arises frorn the neglect of the civic duty of circumspection. 6 Where a chemist gives expired date
medicine to a patient and the patient dies, the chemist would be liable for causing death by
negligence because he has failed to exercise due caution to ascertain whether the medicine that he
was giving was expired date or not.
1. Cherlopalli Cheliminabi v. State of A.P.. 2003 Cri. L.J. 1246 (S.C).

2. 2006 Cri. L.J. 522 (S.C).
3. Sukarno Kaviraj. (1887) 14 Cal. 566.
4. Emperor v. Omkar Rampratap, 5 Bom. L.R. 679.
5. In re Nidamarti Nagabhushnam, (1872) 7 M.H.C.R. 119.
6. Bhalchandra, A.I.R. 1968 S.C. 1319.
Rash or negligent act.—Rash or negligent act is an act done not intentionally or designedly. 1
A rash act is primarily an over-hasty act, and is thus opposed to a deliberate act, but it also includes
an act which, though it may be said to be deliberate is yet done without due deliberation and
caution.2 Negligence is the breach of a duty caused by omission to do something which a reasonable
man guided by those considerations which ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and reasonable man would not do.3
Rashness and negligence are not the same things. Mere negligence cannot be construed to
mean rashness. Negligence is the genus of which rashness is a species. The words "rashly and
negligently" are distinguishable and one is exclusive of the other. The same act cannot be rash as
well as negligent.4 The rash or negligent act means the act which is the immediate cause of death
and not any act or omission which can at most be said to be a remote cause of death. 5 In order that
rashness or negligence may be criminal it must be of such a degree as to amount to taking hazard
knowing that the hazard was of such a degree that injury was most likely to be caused thereby. The
criminality lies in running the risk or doing such an act with recklessness and indifference to the
consequences.6
[ S. 304
In cases relating to rash driving it is the duty of the driver to drive his vehicle at a speed
which will not imperil the safety of others using his road. 7 In order to hold a driver criminally liable
it must be proved that a collision was entirely or at least mainly due to rashness or negligence on the
part of the driver. It would not be sufficient if it was only found that the accused was driving the
vehicle at a very high speed. 8 A person driving a car is under a duty to control the car, he is prima
facie guilty of negligence if the vehicle leaves the road and dashes into a tree and it is for the driver
to explain the circumstances under which the car had left the road. Those circumstances may be
beyond his control, and may exculpate him, but in the absence of such circumstances, the fact that
the car left the road is evidence of negligence on the part of the driver.9
Where due to collision of a vehicle injury or death is caused, it cannot be taken for granted that the driver of the vehicle involved in the accident was guilty of the
crime. There may be exceptional cases where the rule res ipsa locquiter applies. Ordinarily it is for the prosecution to establish the guilt of the accused beyond reasonable
doubt."1 Speed alone is not the criterion for deciding rashness or negligence on the part of the driver. A motor vehicle is intended to be driven in speed. The relationship
between speed and rashness or negligence depends above the place and time. In a straight wide road where obstruction from other vehicles or pedestrians are not there, it
cannot be said that driving in speed or absence of sounding horn by itself will amount to rashness or negligence.
It was held in Jacob Mathew v. Slate of Punjab? that the word gross has not been used in
Section 304-A of I.P.C, yet it is settled that in criminal law negligence or recklessness, to be so held,
must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring
in Section 304-A of the I.P.C. has to be read as qualified by the word "grossly".
In Rathnashalvan v. State of Karnataka? the accused, a driver of a lorry while driving at a
1. Istlingappa v. Emperor, 17 l.'C. (Bom) 542.
2. Nga Myat Thin v. Emperor, (1898) P.J.L.B. 426.
3. Blyth v. Birminghan Water Works Co., 11 Ex. 784.
4. Shakir Khan, A.I.R. 1931 Luck 54.
5. Akbar Ali, (1936) 12 Luck 336.
6. Chamman Lai. 1954 Cri. L.J. 405.
7. Parthasarthy, 1959 Cri. L.J. 1344.
8. Hari Singh. A.I.R. 1969 Raj. 86.
9. Ratnam Mudaliar, A.I.R. 1934 Mad. 209.
10. P. Rajappan v. State of Kerala. 1986 Cri. L.J. 511.
very high speed in a rash and negligent manner dashed against a tree which was by the side of the
road and caused death of Shivanna, Bililyamma and Basheer. Bleeding injuries were caused to CWs
3 to 5 who were travelling in the cabin of the said lorry. Two of them died at the spot and the third
person died on the way to the hospital. Since CWs 3 to 5 sustained grievous injuries the accused was
Charge-sheeted under Section 279, 337 and 304-A of IP. Code. The prosecution examined 10
witnesses as PWs 1 to PW 10 to prove the guilt. The accused denied but he did choose to examine
any witness on his behalf. The evidence of R.T.O. clearly stated that the accident did not occur on
account of any mechanical defects in vehicle. The Supreme Court in view of the evidence of eye-
witnesses some of whom were travelling by the same lorry showing that vehicle was being driven at
a very high speed and that road was quite wide and there was no traffic at the time of accident, held
that the accused was rightly found guilty under Section 304-A Indian Penal Code.
Negligent act not amounting to culpable homicide. —It was observed by Allahabad High
Court in hlu Beg? that "section 304-A is directed at offences outside the range of sections 299 and
300, and obviously contemplates those cases into which neither intention nor knowledge enters. For
the rash or negligent act which is declared to be a crime is one not amounting to culpable homicide,
and it must, therefore, be taken that intentionally or knowingly inflicted violence, directly and
wilfully caused, is excluded. Section 304-A does not say that every unjustifiable or inexcusable act
of killing not hereinbefore mentioned shall be punishable under the provisions of this section, but it
specifically and in terms limits itself to those rash or negligent acts which cause death but fall short
of culpable homicide of either description." Where A takes up a gun not knowing it is loaded, points
in sport at B and pulls the trigger, 'B' is shot dead, A would be liable for causing the death
negligently under this section.
Contributory negligence.—Contributivc negligence is no defence to a criminal charge. A
criminal charge shall be sustainable if the accused had been at fault even though some one else may
have been equally at fault. In such cases the question is : did the accused rashly or negligently do an
act which was likely to endanger the public? If he did such an act, the fact that the actual injury was
brought about by carelessness or contribution of the victim also will be no defence.4
Cases.—In a case where a Homeopathic practitioner, administered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of dhatura
without studying its effect and the patient died of poisoning, it was held that the doctor was guilty for causing death by doing an act negligently.5 Similarly, in De Souza? A,
a compounder while preparing a fever mixture took out certain medicines from a bottle without reading its label and mixed it in the mixture. The mixture was administered to
eight persons out of whom seven died. The bottle was marked poison and contained strychnine hydrochloride and not quinine hydrochloride as he supposed it to be. The
compounder was held guilty under this section.
'A' kept the bottle of medicine in a shelf where some other bottles containing poisonous
solution for photography business were also kept. In a state of drunkenness, before going to bed, 'A
1. 2005 Cri. L.J. 3710 (S.C).
2. 2007 Cri. L.J. 1451 (S.C).
3. (1881) 3 All. 776.
4. Swindall, (1846) 2 C. & K. 230.
5. ' Juggan Khan, A.I.R. 1965 S.C. 831.
6. (1920) 42 All. 272.
mistakenly gave his ailing wife the poisonous solution, as a result of which she died. Here A is
liable for causing death by negligence under section 304-A. Since A was voluntarily drunk, he
cannot claim the protection of section 86 IP. Code.
In Thompson? a railway engine driver failed to sound the whistle before starting the engine,
and a boy, who was painting a wagon on the line was runover and killed. It was held that the driver
was liable for an offence under this section. In a case where a man sets a naked live electric wire in
the passage to a lavatory so that no trespasser may come and use the same, a trespasser manages to
enter the lavatory without touching the wire but receives a shock while coming out and dies. There
was no warning that the wire is live. It was held that the man was guilty under this section. 2 In
Kamruddin? the accused sent two boxes containing fire works for carriage upon a railway falsely
declaring them to contain iron locks, one of the boxes exploded during loading killing one coolie
and injuring another and damaging the railway wagon in which it was being placed. The accused
was held liable under this section. Similarly, in Mussammat Bakhan? a woman had received poison
from her paramour to administer to her husband as a charm. She administered it but she did not
know that the substance given to her was noxious until she saw its effects. The man died and the
woman was held liable for an offence under this section.
In Supadi? a girl aged 17 years was carrying her infant baby tied on her back, she having
been exasperated at an altercation which she had with her husband, attempted to commit suicide by
jumping into a well, she was found alive but her child was dead. It was held that the girl was liable
for causing death of the child by negligent omission and for attempting to commit suicide inasmuch
as she has failed to put the child down before jumping into the well. In Shahu? the accused had
sexual intercourse with his child wife with such violence as to rupture the vagina and destroy the
partition between the vagina and the rectum and the girl died. The accused was liable under this
section.
In a case A beat B, who fell down unconsciously, A thinking B to be dead, put the dead body
in a bag and threw it in the river in a bid to destroy the evidence. The dead body was discovered and
the medical examination revealed that B had died of drowning. In such a case one view is that A
would be liable for causing death by doing an act negligently. However, applying the ruling of Patna
High Court in Srcenarayan,1 A may be held liable under Section 304 Part II. The latter view is a
better one. If a motor driver rashly drives a bus whose hand-brake was ineffective, the foot brake
was defective and the rod and drag link were loose and the bus capsizes resulting in death of some
passengers and injuries to others the driver would be guilty under this section and under Sections
279 and 338.8 But if the mechanical defect in the vehicle is such that it cannot be detected without
meticulous examination of the machinery the driver would not be liable. 1 A gave a blow .to B, his
wife, on the head with a hammer. B fell down unconscious. A thinking that B had died, hanged her
from the ceiling fan with a rope round her neck to make it look like a case of suicide. The medical
1. (1894) Unrep. Cr. C. 721.
2. Chenibin Gregory, A.I.R. 1964 S.C. 205.
3. (1905) PR. No. 22 of 1905.
4. (1887) PR. No. 60 of 1887.
5. (1925) 27 Bom. L.R. 604.
6. A.I.R. 1917 S. 42 : 18 Cri. L.J. 1003.
7. (1947) 27 Pat. 67.
8. Mangal Singh, (1952) 31 Pat. 716.
evidence showed that B was not killed by the blow on her head but her death was caused by
strangulation. A would be liable for causing death under Section 304, Part II because he had acted
with gross negligence and, therefore, the act shall be deemed to have been done with knowledge. A
would also be liable for fabricating false evidence under para 2 of section 193.
A, an unmarried girl gave birth to a child. She left the child in the night by the road side
believing that someone will pick him up and bring him up. She took all the precautions to leave the
child at a lighted place and cover it up properly. The child, however, died of starvation before being
detected by anyone. A would be liable for causing death by starvation.
In another case A was incharge of a police station, the vicinity of which had been much
troubled by thieves. On one occasion a thief had fired at' the station incharge, the accused. On
having come to know that three thieves were prowling about, the accused with two other men, went
out for patrolling. They saw a man crouching under a tree, and thinking him to be thief, the accused
fired at him, and killed him. The man who was shot dead was proved to be a coolie. The accused
was held guilty of a most rash act.2
A was watching his field on one dark night. Hearing a noise in the field he shouted,
whereupon a thief ran out of it whom he followed and struck with a stick. The thief fell down, and
the accused caught him and took him to a Zamindar's house. The thief became insensible and later
on died due to the effects of the blow which the accused had given him. It was held that the accused
was not liable for an offence under this section.3 The accused while driving a motor car at night
[ S. 304
entered a road which being under repairs was closed to traffic. He ran over and killed two coolies
who were sleeping on the road with their bodies completely covered up except for their faces. The
accused was held not guilty of an offence under this section because it could not be said that he
should have looked out for persons making such an abnormal use of the road. 4 But where A while
driving a car ignores the traffic signal and dashes against another car, he would be guilty under this
section and his plea of having fallen asleep while driving will be of no help to him. In
Agasthavalinga Goundan, the accused had kept a bottle of the Atlas tree killer in his farm shed. Two
of his farm servants drank it thinking it to be arrack and died in consequence. The farm owner was
not liable for an offence under this section.
In Bhimabhai Kalabhai v. State of Gujarat, the petitioner constructed a water tank for the
convenience of village people. The tank was filled, with water but it collapsed causing death of
seven persons and injuries to eight persons. The tank collapsed because it could not bear the
pressure of water. The material used in the construction was of a low quality and below the
prescribed standard. The lower court convicted the accused under Sections 304-A and 338 of the
Penal Code and a revision application was filed before the High Court requesting reduction of
sentence. It was held that the High Court cannot reappreciate the evidence in Revision Application
1. Had Singh, A.I.R. 1969 Raj. 86.
2. Waziruzama Khan, (1881) 1 A.W.N. 156.
3. Bhikham, (1881) 1 A.W.N. 103.
4. Smith, (1925) 53 Cal. 333.
5. A.I.R. 1941 Mad. 766.
6. 1992 Cri. L.J. 2585 (Guj.).
and interfere with the conviction. The sentence awarded also cannot be reduced simply on the
ground of lapse of seven years from the date of incident because that would be an injustice to the
victims who lost their lives.
In Abdul Qayyum? A was driving a lorry at a speed of about twenty miles per hour when he
was passed on his right side by another lorry going fast, which went on to the katcha part of the
road, raised a great cloud of dust which completely blinded the driver and hid the road from him.
Instead of stopping the lorry he proceeded further with the result that as he could not see the road, he
drove his lorry on the right side of the road instead of the left. This resulted in collision with another
lorry whereby several persons received grievous injuries and one of them died. A was held guilt of
causing death by rash or negligent act because under the conditions as above it is the duty of all
motorists to stop their vehicles. To continue to driving is obviously dangerous when it is impossible
to see anything at all in the neighbourhood.
In B.P. Ram v. State of M.R,2 it was held that the 'rash or negligent act' means the act which is
the immediate cause of death and not any act or omission, which can at most be said to be a remote
cause of death. To render a person liable for neglect of duty there must be such a degree of
culpability as to amount to gross negligence on his part. It is not every little tip of mistake that will
make a man so liable.
Therefore, where a boy surreptitiously entered into a swimming pool run by the club and was
drowned, it was held that the honorary secretary and chowkidar of club cannot be said to be liable,
under Section 304-A for causing death by negligence in so far as they failed to have a life saving
guard or any notice of caution on swimming pool. Failure 7 to have a life-saving guard or a notice of
caution cannot be said to be the immediate cause of death. The alleged negligence of the club may
make the members of club liable under tort but for aforesaid omission, the members cannot be held
liable under Section 304-A, I.P.C.3
It was held in Suresh Gupta v. Government of N.C.T. of Delhi? that in order to fix criminal
liability under Section 304-A of I.P.C. on doctor or surgeon, prosecution has to come out with a case
of high degree of negligence on the part of the doctor. In this case accused the doctor, a plastic
surgeon was charged for offence under Section 304 for causing death of his patient who was
operated by him for removing his nasal deformity. Medical experts opined that there was negligence
on the part of accused in not putting a cuffed endotracheal tube of proper size and in a manner so as
to prevent aspiration of blood blocking respiratory passage. The Supreme Court observed that the
act attributed to the doctor though can be described as negligent act but not so reckless or grossly
negligent as to make him criminally liable. Therefore criminal proceedings were quashed by the
Supreme Court.
In Vasant v. State of Maharashtra? the deceased was runover by the jeep of appellant. The
trial court held him guilty under section 304-A, and not under section 302, as it found lack of
1. (1940) 21 Lah. 646.
2. 1991 Cri. L.J. 473 (M.P.).
3. B.P. Ram v. State of M.R, 1991 Cri. L.J. 473 (M.P.).
4. 2004 Cri. L.J. 3870 (S.C).
5. AIR 1998 S.C. 699.
intention to kill. But the High Court held that there was enemity between the deceased and the
appellant, and on the fateful day, the appellant after exchange of words with victim ran towards his
jeep and ranover the victim at high speed. There was no point of being rash and negligent as the
road was very broad and there was no traffic. Hence the Court found the appellant guilty under
section 302. The Supreme Court after appreciating the deliberations of the High Court dismissed the
appeal and confirmed the conviction of appellant under section 302, Indian Penal Code.
304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years df her marriage and it is shown that soon before
her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative
shall be deemed to have caused her death.
Explanation.—For the purposes of this sub-section, "dowry", shall have the same meaning as in section 2
of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) whoever commits dowry death shall be punished with imprisonment for a term which shall not be less
than seven years but which may extend to imprisonment for life.
COMMENT
This section was inserted in the Penal Code by an amendment in 1986. Sub-section (1) of this
section defines dowry death.
Essential ingredients.—(i) Death must be caused by burns or bodily injury or it must occur
otherwise than in normal circumstances;
(ii) Death must occur within seven years of marriage; and
(iii) It must be shown that soon before her death the woman was subjected
to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment must be for or in connection with any
demand for dowry.
(v) Here the dowry shall have the meaning as assigned to it under Section
2 of the Dowry Prohibition Act, 1961.
Another important feature of this section, which can be said to be a departure from the normal
feature of the Code is that a minimum of not less than 7 years' imprisonment is prescribed but this
may extend to imprisonment for life.
In Kainesh Panjiyar v. State of Bihar,1 the Supreme Court observed that the marriages are
made in heaven is an adage. A bride leaves the parental home for the matrimonial home, leaving
behind sweet memories there with a hope that, she will see a new world full of love in her groom's
house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She
expects not only to be a daughter-in-law, but a daughter in fact. Alas! the alarming rise in the
number of cases involving harassment to the newly wed girls for dowry shatters the dreams. In-laws
are characterised to be out-laws for perpetrating terrorism which destroys the matrimonial home.
The terrorist is dowry, and it is spreading tentacles in every possible direction.
The deceased Jaikali Devi, daughter of Bachu Mahto (Pw-3) and sister of informant Sudhir
Kumar Mahto (Pw-6) was married to the appellant in 1988. Her parental village was very near to her
matrimonial village. A sum of Rs. 40000/- was paid as Jowry at the time of marriage. Her
Dufagaman (second bidai) was performed in August 1989 and a demand for a she-buffalo was
made.
1. 2005 Cri. L.J. 1418 (S.C).

which was not fulfilled. Informant Sudhir Kumar Mahto went several times to the house of her sister
and requested for her bidai but it was repeatedly refused and he was even abused and the demand of
she-buffalo was repeatedly pressed. The deceased complained of ill-treatment and torture at the
hands of the appellant and other members of his family. On 28-11-1989 at about 7.00 a.m. informant
heard some rumour in the village that his sister the deceased was murdered by the appellant and his
family members and they were contemplating to dispose of the dead body. Thereafter, the informant
along with his father Bachu Mahto (Pw-3), brother Arup Mahto (Pw-5) and uncle Bhuneshwar
Mahto (Pw-7) went to the village of appellant and found the dead body of bis sister lying in the
verandah of the appellant's house and some blood was oozing from her mouth and there were marks
of violence on her neck and it appeared that his sister was murdered by strangulation in the previous
night. Police also reached and a case was registered. After investigation charge-sheet was submitted.
During trial the Sessions Court found that it was not a case of natural death. The Court recorded
conviction under Section 304-B of I.P.C. and ten years sentence was imposed. In appeal the High
Court upheld the conviction but reduced the sentence to 7 years. The accused husband made an
appeal to the Supreme Court and the Supreme Court held as follows :
In order to attract application of Section 304-B of I.P.C, the essential ingredients are as
follows :—
[ S. 304
(i) The death of a woman should be caused by burns or bodily injury

or otherwise than under a normal circumstances.
(ii) Such a death should have occurred within seven years of her
marriage.
(iii) She must have been subjected to cruelty or harassment by her
husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with
demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to
the woman soon before her death.
It was held that a conjoint reading of section 113-B of the Evidence Act and section 304-B of
I.P.C. shows that there must be material to show that soon before her death, the victim was
subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or
accidental death so as to bring it within the purview of the death occurring otherwise than in normal
circumstances. In cases of dowry death the presumption is that requirement of direct evidence is not
necessary. In this the Doctor who conducted post-mortem examination has noticed that blood
stained fluid was tickling from the side of mouth and brain matters were congested. The doctor
unfortunately did not consider the effects of the marks on the neck and trickling of blood stained
fluid from the mouth. Nothing was brought on record by the defence to explain injuries on the neck
of the deceased. There was nothing to show that death was natural, hence conviction of the husband
for offence under section 304-B of I.P.C'was justified.
In Sham Lai v. State of Haryana? Neelam Rani, wife of the appellant died of burns on 17-6-
1987. They were married in 1983. It was alleged that there was dispute regarding dowry and that
Neelam was sent back to her parents' home
1. 1997 Cri. L.J. 1927 (S.C).

S. 304-B ]
and was again taken back to nuptial home after a Panchayat which was held to resolve the dispute.
This happened about ten to fifteen days prior to the occurrence. There was nothing on record that
she was either harassed or treated with cruelty for or in connection with the demand for dowry
during the period between her having been taken to the parental home and her tragic end. When
Neelam's father Bhagwandas on hearing about the precarious condition of his daughter rushed to
the hospital, he could only see her charred body. When he asked the appellant whether she was
killed by him, the appellant answered with folded hands that it was a mistake on his part and for
that he should be forgiven. Neelam died and her husband, his father and grandmother were charged
for offences under Sections 302, 304-B and 498-A of the Penal Code. In absence of eye-witnesses,
the High Court on the basis of circumstances concluded that the appellant had killed his wife by
setting her ablaze after dousing her with kerosene. But the Supreme Court did not agree with the
conclusion reached by the High Court as the circumstances were far too meagre for reaching to that
conclusion. It was held that the appellant could not be convicted under Section 304-B also because
the legal presumption under Section 113-B of the Evidence Act cannot be invoked because there
was no evidence to prove that soon before her death Neelam was subjected to cruelty or harassment
for or in connection with demand for dowry. However, basing on evidence of deceased's father and
the dying declaration which is admissible under Section 32 of the Evidence Act, conviction under
Section 498-A of the Penal Code is sustainable.
In Devinder Singh and others v. State of Punjab,1 it was alleged that deceased committed
suicide on account of harassment by in-laws for non-fulfilment of dowry demand. Evidence given
by father of deceased shows that Panchayat was held in respect of demands made by accused.
Witness examined by accused himself supported this version. Further about a month prior to
incident deceased was again turned out of house to bring demanded articles. It was held that the fact
that the deceased when committed suicide was having a son aged about 15 months and another
child in her womb showed that accused persons had made her life miserable. Therefore conviction
of accused persons was held to be proper.
It was observed in Raja Lai Singh v. State of Jharkhand,2 that the expression soon before
death occurring in Section 304-B, I.P.C. is an elastic term. It can refer to a period either
immediately before death of deceased or within a few days or few weeks before death. What is
relevant is there should be a perceptible nexus between death of deceased and dowry related
harassment or cruelty inflicted on the woman concerned.
In the present case death of deceased occurred about 7 months after marriage. Husband of
deceased, his brother and his wife were charged for the offence. Accused husband and his brother
were living on separate floors. Harassment for dowry was 10 to 15 days before death. Incident took
place in room of her husband. It was held that even if death was by way of suicide, Section 304-B,
I.P.C. would be attracted and husband would be liable for conviction under Section 304-B, but
accused's brother and his wife were entitled to benefit of doubt.
In Public Prosecutor, High Court of Andhra Pradesh v. T. Basava Punniah and other, 3 the
deceased Sivakumari was married to the first accused about three years prior to the date of
occurrence, i.e., 26-6-1987. The father of the deceased
1. 2005 Cri. L.J. 4160 (S.C).
2. 2007 HI Cri. L.J. 3262 (S.C).
3. 1989 Cri. L.J. 2330 (A.P.).
could not pay the dowry upto the expectation of the accused at the time of marriage. The promised
dowry was paid sometime after marriage but the accused continued demanding one thing after
another which the father of the deceased fulfilled. The dowry demand continued and on 24-6-1987
the accused ill-treated and harassed the deceased and sent her to her parent's house. Her mother sent
her back to the house of the accused assuring her daughter that the matter will be settled by her
father. On the night of 25-6-1987 the accused alongwith his father and mother strangulated the
deceased by neck and killed her and kept the dead body on the cot in their house keeping a lungi
tied to a bamboo beam to make it appear that the deceased committed suicide with a view to
S. 304-B ]
suppress the evidence of murder and save them from punishment. On medical examination it was
found that death was caused due to asphyxia due to hanging. It was held that since death was
caused within three years of marriage due to hanging, it occurred otherwise than under normal
circumstances. There is ample evidence of harassment for dowry prior to death. Therefore, even if
she had committed suicide by hanging, still death comes within the scope of Section 304-B as she
was subjected to cruelty by her husband and other relatives in connection with demand for dowry.
In Kundulabala Subrahmanyam v. State of A.P.J on hearing cry of the deceased Kundula
Koti Nagbani, three neighbours namely, Pulapa Lakshmi, Vempati Paparao and Vempati Radha
rushed to the house of the appellant and found the appellant, his mother and father hurriedly
coming out of the kitchen while the deceased was lying on the floor engulfed in flames. Since the
appellant and other inmates were making no attempts to put off the flames PW-2 Pulapa Lakshmi
asked the appellant to give her something so that she could extinguish the fire but he did not
respond. She then requested his father who gave her a bed-sheet and while he was passing it on to
PW-2, the mother-in-law of the deceased told her husband not to give the bed-sheet to PW-2. But
PW-2 took the bed-sheet from the father of the appellant and tried to extinguish the fire. The
deceased had told PW-2 and her brother who came on getting information that her mother-in-law
had poured kerosene over her and her husband had set fire to her. Medical evidence revealed
emission of kerosene smell from the dead body and absence of poison in viscera. It was held that
the accused were liable under Section 302 read with Section 34. Conduct of the accused in not
trying to extinguish the fire and not rendering any first aid to her and also not accompanying the
deceased to the hospital were inconsistent with their plea of innocence and totally betrays the
theory of suicide. Prosecution has established the guilt by circumstantial evidence. Where
occurrence takes place in the house of in-laws, the onus lies on the inmates of the house to explain
circumstances leading to death.
In Prein Singh v. State of Haryana? deceased Sumitra was married to A-l Prem Singh. There
were repeated demands of dowry after marriage and this fact was stated by the deceased to her
parents. When Sumitra deceased gave birth to a male chfrd~her parents expected that this might
bring harmony between their daughter and son-in-law. They gave a she-buffalo but the appellants
were not satisfied and the harassment for dowry still continued. Smt. Shanti (A-2), the mother of
appellant A-l was residing separately from A-l in a separate house. A-2 was not proved to be
present at the time of incident. Deceased died due to burn injuries within 7 years of her marriage.
The evidence of witnesses regarding demand of additional amount of dowry by accused was
consistent and corroborated. No probable explanation was given by accused as to how deceased
1. (.1993), 2 S.C.C. 684.

2. A.I.R. 1998 S.C. 2628.
S. 304-B ]
KNiDWJ D
ENAL CODE, 1860 438
died in his house due to burn mjtincs. As for accused A-2, the mother-in-law of deceased is
concerned there was no positive evidence to show that she was instigating A-l to demand additional
dowry. She was residing separately. Witnesses did not state any specific instance wherein accused
A-2 caused harassment to deceased nor there was any evidence that she instigated her son to
demand dowry. The said demand of dowry was not to benefit A-2. Therefore she was entitled to
benefit of doubt and was acquitted of charge under section 304-B, Indian Penal Code. It was further
held that as for as A-l is concerned his plea that his wife died by consuming poisonous substance
was not supported by medical evidence. Therefore the mere fact that accused/appellant took
deceased to hospital does not demolish the prosecution case as regards unnatural death of deceased.
Guilt of accused was held to have been proved beyond doubt and his conviction under section 304-
B, was proper.
In Meka Ramaswamy v. Dasen Mohan,1 it was held by the Supreme Court that if the wife
dies within four months of marriage and there is absence of demand of dowry as well as ill-
treatment, the husband and his family cannot be held liable under section 304-B, Indian Penal Code.
In Venugopal v. State of Karnataka? Vijayalakshmi the wife of appellant died an unnatural
death within two years of their marriage and before her death she was subjected to harassment by
him because she was not bringing from her parents the remaining amount of dowry promised to
him. Vijayalakshmi was not only harassed but ill-treated and beaten many times. There is evidence
of PW-5 and PW-15 that before the incident which led to her death, there was a quarrel between
husband and wife and therefore she wanted to leave his wife but because of persuation by PW-5 not
to leave at midnight, she had agreed to remain there till next day morning. Their evidence further
proves that ten minutes after Vijaylakshmi had returned to her room PWs-5 and 15 heard some
noise coming from the appellant's room and when PW-5 went there and enquired as to what
happened the appellant said "sorry sister" and closed the door. After some time both of them heard
some more noise and both of them again went there. By that time some other neighbours had also
gathered. The apppellant then opened the door and it was then noticed that Vijayalakshmi was
sitting under a tap with her body fully burnt. It was held that their evidence thus establishes that
soon before her death she was ill-treated by her husband. The defence of the appellant was that she
committed suicide. It was held by the Supreme Court that the High Court had correctly appreciated
the evidence and thought it fit to accept the version of suicide and acquit the appellant under section
302, and convict him under sections 304-B and 498-A, Indian Penal Code because harassment was
proved and the death had taken place within about a year and half from her marriage with the
appellant.
In K. Prema S. Rao v. Yadla Srinivas Rao,3 the deceased Krishna Kumari was married to
Yadla Srinivas Rao (A-l). She was living jointly with her husband and in-laws in the village. Her
father (PW-1) who was a teacher gave Rs. 15,000/- in cash and jewellery of about Rs. 15,000/- at
the time of marriage of his daughter. He also gifted 5 acres of land and a house site as stridhan.
After 3 or 4 months of marriage A-l started pressurising deceased to transfer the land and house site
in his favour. His wife refused to meet the demand and thereafter accused started harassing her.
Since A-l was sub-postmaster in the same village, the mail of the deceased were never delivered to
her. A letter regarding admission to test in university of the younger sister of the deceased was
1. A.I.R. 1998 S.C. 774.
2. 1999 Cri. L.J. 29 (S.C).
3. 2003 Cri. L.J. 69 (S.C).
concealed by A-l and later on when it by chance came in her hand she handed over the same to her
father (PW-1). This incident led to extreme point of harassment. Thereafter, A-l and his parents
drove the deceased out from their house with a stern warning to restore those letters. The incident of
cruelty was so grave that the deceased consumed poisonous insecticide. PW-4 witnessed the scene
of deceased being driven out of the house and also being taken to the hospital at Madhira. PW-4
informed about it to father of deceased (PW-1) who rushed to the house of the accused and found
Krishna Kumari dead. He then filed FIR on the same day.
S. 304-B ]
KNiDWJ D
ENAL CODE, 1860 439
In the instant case cruel treatment and harassment led to the deceased committing suicide. It
was held that to attract the provisions of section 304-B of Indian Penal Code one of the main
ingredients of the offence is that 'soon before her death' victim must have been subjected to cruelty
and harassment "in connection with the demand of dowry". There is no evidence on record to show
that land was demanded as a dowry. It was gifted by the father at the time of marriage and was
stridhan property of deceased. The harassment or cruelty meted out to the deceased wife by husband
after the marriage to force her to transfer the land in his name was not in connection with any
demand for dowry. One of the main ingredient of the offence of section 304-B 'demand of dowry'
being absent the accused could not be said to have committed offence of dowry death.
In Gurucharan Kumar v. State of Rajasthan,1 the deceased Geetu was married to Pravin
Kumar on 28-4-1990. After marriage she started residing with her husband and his parents at
Sriganganagar. Only two and a half months later on 13th July 1990 Geetu committed suicide by
hanging. Her parents were informed and they came to Sriganganagar. Post-mortem of the dead body
was conducted on 14-7-1990, whereafter her body was cremated in the presence of her parents and
other relatives. After the cremation at about 4 p.m., Ved Prakash (PW-1), father of deceased lodged
first information report at 8.30 p.m. After investigation, husband of deceased Pravin Kumar and his
parents were tried for offence under section 304-B of the Indian Penal Code. They were convicted
by the trial court and the High Court in appeal also maintained the conviction. The parents of Pravin
Kumar preferred an appeal to Supreme Court.
The Supreme Court allowed the appeal and set aside the conviction. The Supreme Court held
that the letters alleged to be written by the deceased to her mother and friend do not support the case
of prosecution that deceased was being subjected to torture and harassment or was being constantly
taunted for not bringing car in dowry. On the contrary the said letters showed that she was loved by
all the members of her matrimonial family who showered affection on her. The only indication
therein was that she was finding it difficult to adjust in new surroundings for which she found
herself guilty for entertaining such feelings. The suicide note by deceased does not contain any
statement which can be used against accused her father-in-law and mother-in-law. Moreover,
informant, the father of deceased failed to mention about decision to send demand draft for
purchase of car either in F.I.R. or in his two subsequent statements before police. Thus, the
prosecution failed to prove the case beyond reasonable doubt. Therefore, the two appellants father-
in-law and mother-in-law of deceased were held to be
1., 2003 Cri. L.J. 1234 (S.C).
440
S. 304-8 ] OF OFFENCES AFFECTING THE HUMAN BODY
entitled to acquittal.
The accused No. 1, the husband of deceased did not file appeal on account of the fact that he
has already served out the sentence imposed against him but the Supreme Court held that since
remaining accused have been acquitted, he can also be acquitted of charges levelled against him
even though he has not preferred an appeal.1
In State of Karnataka v. Manjunathe Gowda,2 the marriage of deceased Kamlamma was fixed
to be performed at 10.30 a.m. on 17-5-1987 with Nagesh Gowda. Since the groom did not turn up
the father of deceased and relatives felt humiliated. At this stage the accused A-l Manjunath Gowda
came forward to marry with the deceased on the same day provided Rs. 10,000/- and three sovereign
of gold was paid as dowry. Since the father of deceased did not have that much amount at that time
his relatives and friends contributed Rs. 8,000/-which was immediately given and it was agreed that
the balance of Rs. 2,000/-and gold shall be paid after harvesting the crop. The matter of payment of
dowry after having been resolved the marriage took place the same day in the evening. To establish
the demand and payment of dowry the prosecution examined PW-1 brother of deceased, PW-6,
father of deceased, PW-7 an independent witness who participated in collection of money, PW-12
witnessed the payment of money to A-l and PW-15 solemnised the marriage. Father of deceased
stated that deceased had gone to his house four days prior to Diwali and told that she was being
tortured for bringing the balance amount and gold as dowry. She told that her husband told her not
to come to the house without bringing the dowry amount and gold. After Diwali deceased refused to
go to her husband's house without balance of dowry amount and gold apprehending torture and
harassment. The father ultimately took her on 12-11-1987 to the house of the accused and stayed
there for a night on 13-11-1987. He came back to his own house and on 14-11-1987 at about 8.30
a.m. he received the information that his daughter had died. There was no evidence on record that in
the intervening period of 13-11-1987 and 14-11-1987 there was some settlement with regard to
balance dowry amount and gold.
Accused A-l, husband of deceased caused injuries to his wife inside bathroom in his house.
Body of the deceased was found in a well but there was no evidence to show that there was trail of
blood from house to well where dead body was found. Recovery of clothes, axe and stone from
bathroom was not found reliable. Thus, prosecution failed to establish complete and conclusive
chain of circumstances to bring the guilt of the accused beyond reasonable doubt. Hence accused
was acquitted of the offence of murder.
But as for the accusation of offence of dowry death is concerned it was held that from the
testimony of the brother and father of the deceased, it clearly appears that soon before her death she
was subjected to cruelty or harassment in connection with demand for dowry by her husband. Since
the marriage of deceased was solemnised on 17-5-1987 and she died within 7 years of marriage, it
could be said in the light of evidence that the offence under section 304-B was committed by A-l
husband of the deceased.3
In Ram Kumar v. State of Haryana? the deceased Raj Dulari was married to appellant and her
1. Gurucharan Kumar v. State of Rajasthan, 2003 Cri. L.J. 1234 (S.C).
2. 2003 Cri. L.J. 900 (S.C).
3. State of Karnataka v. Manjunathe Gowda, 2003 Cri. L.J. 900 (S.C).
younger sister Bimla was also married on the same day with brother of the appellant. The first
appellant, the husband of deceased and the second appellant mother-in-law of deceased were
convicted under sections 304-B and 498-A, Indian Penal Code as they were demanding dowry
eversince the marriage. Whenever the deceased visited her parents she used to tell her relations that
the appellants were ill-treating and harassing her on demand of dowry. On receiving information
that Raj Dulari was having severe pain in stomach, PW-7 went along with her husband to the house
of appellant but none including Raj Dulari was found in the house. Their second daughter Bimla
441 INDIAN PENAL CODE [ S. 304-B
was found locked up in a room on the first floor. She told them that Raj Dulari was beaten in the day
by appellants and when she tried to intervene she was detained in the locked room. The dead body
of Raj Dulari was found lying near a well outside the house. It was argued on behalf of the appellant
that had Raj Dulari been ill-treated and harassed for dowry, the 'nuiklawa'' ceremony of her younger
sister would not have been performed about a month before incident. It was held by the Supreme
Court that there is no substance in this contention. Since the marriage was performed there was no
purpose stopping 'muklawa' of younger sister moreover the parents were hoping that if both the
sisters started living together the situation would improve and they would be happy. The
performance of 'muklawa' does not belie the evidence of harassment. Similarly non-production of
letters written by the deceased about ill-treatment was not sufficient to disprove the prosecution
case. It was further pointed out that the names of appellant were mentioned in the F.I.R. and the
F.I.R. could not be falsified by the allegations made in the divorce petition by the younger sister.
The letter is not relevant for considering the truth of the prosecution. There is ample evidence to
prove that there was harassment by the appellants. Therefore the accused were rightly convicted
under section 304-B and section 498-A, Indian Penal Code by the courts below.
In Harjit Singh v. State of Punjab? wife of accused died due to poisoning within 7 years of
marriage. There was no evidence showing that deceased was subjected to cruelty or harassment by
the appellant-husband or any of his relatives for or in connection with any demand of dowry within
the meaning of section 498-A, appellant cannot be convicted either under Section 304-B or Section
306, I.P.C. It was further pointed out that presumption arising either under Section 304-B, IPC or
Section 113-B of Evidence Act could not be invoked against appellant.
In Ram Badan Sharma v. State of Bihar? the deceased was killed by administering poison
due to non-fulfilment of persistent demand of dowry which was being made right from the time of
marriage till her death. She was being harassed, humiliated and beaten by her husband and in- laws.
Even her relatives were not allowed to meet her at her matrimonial home. On the fateful day poison
was given to deceased in Prasad. The accused persons secretly and clandestinely cremated her
without even intimating parents of deceased who were living only a few miles away from their
village. The accused persons did not even take her to hospital nor any kind of medical treatment was
given to the deceased. Since death occurred within seven years of marriage, the conviction of the
accused SCTVT.> under Section 304-B for the office of dowry death was held to be proper, k addition
to that a case has also clearly been made out for offence under Sccijon 201 IP. Code. Therefore the
1. 1999 Cri. L.J. 462 (S.C).
2. 2006 Cri. L.J. 554 (S.C).
3. 2006 Cri. L.J. 4070 S.C.
conviction of accused person under Section ZD: I.P.C. was also held to be justified.
In Pawan Kumar v. State of Haryana? the deceased, the wife of appellant died of burn
injuries within seven years of marriage. The wife committed suicide ivcause of mental cruelty and
maltreatment at the hands of her husband on jivount of non-fulfilment of dowry demands. The
Supreme Court held the appellant liable for causing dowry death under section 304-B and section
498-A ±> well as for abetting suicide under section 306, Indian Penal Code as because of his
treatment the wife had committed suicide.
In Mungeshwar Prasad Chaurasia v. State of Bihar? Sudama Devi was narried to Ram Pukar
son of appellant, Mungeshwar Prasad sometime during i992. Sudama Devi died of unnatural
circumstances on 24-1-1995. Three persons namely, Mungeshwar Prasad A-l, husband of deceased.
Ram Pukar A-2 and her mother-in-law Devanti Devi A-3 were charged under sections 304-B and
201 read with sections 34 and 498-A of the Indian Penal Code. The present appellants A-l and A-3
were sentenced to R.I. for seven years under section 304-B and for two years under section 201,
while no separate sentence was awarded lor offence under section 498-A. The third accused A-2
was convicted for 9 years' R.I. under section 304-B. All the three convicted persons appealed to
High Court but the conviction as well as sentence were confirmed by the High Court. Only A-l and
A-3 appealed to Supreme Court. Both of them were more than 80 years old. The convicted persons
were alleged to have subjected the deceased to harassments with demand for dowry and after her
death she was hurriedly cremated. Four witnesses were examined by the prosecution to prove that
Sudama Devi was subjected to harassment with demand for dowry. It was held that all of them said
in one accord that husband of Sudama Devi demanded dowry a few months prior to her death. Even
if the said period can be treated as falling within the proximity range of "soon before death", the said
acts can be attributed only to A-2 Ram Pukar, the husband of the deceased. None of the witnesses
said either directly or indirectly that the present appellants did any thing during the said period as
against Sudama Devi. Of course some of the witnesses said that soon after marriage these appellants
asked for more dowry. But that demand was made at a time which was beyond the range of "soon
before death".of the deceased. Therefore, conviction of appellants-in-laws A-l and A-3 under
sections 304-B and 498-A was held not sustainable. It was further held that as section 201 of the
442
S. 304-8 ] OF OFFENCES AFFECTING THE HUMAN BODY
Indian Penal Code cannot be separated from substantive offence conviction under section 201,
Indian Penal Code was also set aside.
In Taiyah Khan and others v. State of Bihar (now Jharkhand)? accused husband of deceased
and co-accused, his parents were alleged to have caused death of deceased on account of dowry.
Evidence of witnesses showed that deceased was being constantly harassed for demands on account
of dowry. It was held that mere absence of viscera report showing as to whether death occurred on
account of consumption of poison does not make any difference to the fate of the case. Fact remains
that it is a case of unnatural death. Therefore, the conviction of accused and co-accused-parents of
accused under Section 304-B
1. AIR 1998 S.C. 958.
2. 2002 Cri. L.J. 3505 (S.C).
3. 2006 Cri. L.J. 544 (S.C).
was proper. However, keeping in view the advance age of parents of accused their sentence was
reduced by the Supreme Court from ten years to seven years.
In Trimukh Maroti Kirkan v. State of Maharashtra? the deceased, Revata daughter of
Dattarao was married to the appellant nearly seven years before the incident took place on 4-11-
1996. Maroti is the father and Nilawati is the mother of appellant. The appellant husband of
deceased and Maroti and Nilawati used to ill-treat the deceased Revata and harass her on account of
non-payment of Rs. 25000/- by her parents for purchasing a tempo for appellant. Whenever the
deceased came to her parental home she used to disclose to her family members the ill-treatment and
harassment meted out to her. She came to her father at the time of Panchami festival in 1996 and
stayed there for about 15 days. On this occasion also she narrated the ill-treatment meted out to her.
She was often beaten and not given food. After the festival father of the deceased took her to her
matrimonial village and requested the appellant and in-laws of Revata, the deceased not to ill-treat
her. He also told them that he is not in a position to fulfil their demand of Rs. 25,000/-. A few
months thereafter Dattarao father of the deceased received information from a person of the village
of appellant that Revata had died of snake bite. Information about the incident was also given to
police. The appellant himself showed the place to police where his wife was allegedly bitten by
snake and had died. The post-mortem report revealed that death occurred due to asphyxia as a result
of compression of neck i.e. strangulation. Datta Rao father of the deceased then lodged F.I.R., with
the police on 5-11-1996. The appellant was arrested and on the basis of his disclosure, statement
some recoveries were made. Her body was kept in sitting posture with • her back taking support of
wall so that no one would suspect that she was strangulated. No explanation was given by the
accused about the injuries found on the body of the deceased. It was held by the Supreme Court that
all the above circumstances pointed towards guilt of the accused that it was a case of dowry death
and as such the conviction was held to be proper.
It was held in Trimukh Maroti Kirkan v. State of Maharashtra? that the crimes relating to
killing of bride for dowry are committed in complete secrecy inside the house and it becomes very
difficult for the prosecution to lead evidence to establish the guilt of the accused if strict principles
of circumstantial evidence are insisted upon by the Courts. It was also observed that a judge does
not preside over criminal trial merely to see that no innocent person is punished but he also presides
to ensure that a guilty man does not escape. When an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution
but the nature and amount of evidence to be led by it to establish the charge cannot be of the same
degree as is required in other cases of circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a
corresponding burden on the inmates of the house to give a cogent explanation as to how the crime
was committed. The inmates of the house cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an accused to offer any explanation. In case of no
explanation or false explanation it would become an additional link in chain of circumstance.
1. 2007 Cri. L.J. 20 (S.C).

2. 2007 Cri. L.J. 20 (S.C).
S. 304-B ] 443
Meaning of "Soon before Death".—In Hiralal v. State (Government of N.C.T.), Delhi,1 one
Sunita was married to Surender on 26-11-1995. She committed suicide by consuming poison on 14-
4-1999. Since her death was unnatural a report was lodged by her family members against her
husband Surender, father-in-law, Hiralal and mother-in-law Angoori Devi. It was alleged that she
was subjected to torture for dowry and that led her to commit suicide. It was held that a conjoint
reading of Section 113-B of the Evidence Act and Section 304-B, Indian Penal Code shows that
there must be material to show that soon before her death the victim was subjected to cruelty or
harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring
it within the purview of the 'death occurring otherwise than in normal circumstances. The
expression "soon before" is very relevant where section 113-B of the Evidence Act and section 304-
B of Indian Penal Code are pressed into service. Prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in
that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon
the circumstances of each case and no strait jacket formula can be laid down as to what would
constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period
and that brings in the importance of a proximity test both for the proof of an offence of dowry death
as well as for raising a presumption under section 113-B of the Evidence Act. The expression "soon
before her death" used in substantive section 304-B of Indian Penal Code and Section 113-B of the
Evidence Act is present with the idea of proximity test. No definite period has been indicated and
the expression "soon before" is not defined. It would normally imply that the interval should not be
much between the concerned cruelty or harassment and the death in question. There must be
existence of a proximate and live link between the effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned, it would be of no consequence.2
It was further held that sections 304-B and 498-A of Indian Penal Code cannot be held to be
mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a
common essential to both the sections and that has to be proved. The explanation to section 498-A
gives the meaning of cruelty. In section 304-B there is no such explanation but having regard to
common background to these offences, it has to be taken that the meaning of 'cruelty' or
'harassment' is the same as prescribed in explanation to section 498-A under which cruelty by itself
amounts to an offence. Under section 304-B it is 'dowry death' that is punishable and such death
should have occurred within seven years of marriage. No such period is mentioned in section 498-
A. A person charged and acquitted under section 304-B can be convicted under section 498-A
without that charge being there, if such a case is made out.3
In Prem Kanwar v. State of Rajasthan,4 it was held that the expression, "soon before her death" used in substantive Section 304-B IPC and Section 113-B of
Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to expression "soon
1. 2003 Cri. L.J. 3711 (S.C).

2. See also Kaliyaperumal v. State of Tamil Nadu, 2003 Cri. L.J. 4321 (S.C).
3. Hiralal v. State (Government of N.C.T.), Delhi, 2003 Cri. L.J. 3711 (S.C).
4. (2009) 1 Cri. L.J. 1123 (S.C).
before" used in Section 114 illustration (a) of the Evidence Act is relevant. The expression "soon before" would normally imply that the interval should not be much between
the concerned cruelty or harassment and death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no
consequence.
In the present case the offence alleged against the accused is under Section 304-B, IPC which
makes "demand of dowry" it self punishable. Such demand neither conceives nor would conceive of
any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any
offender would come under the clutches of law. When Section 304-B refers to "demand of dowry" it
S. 304-B ] 444
refers to the demand of property or valuable security as referred to in the definition of dowry under
the Dowry Prohibition Act, 1961.
In Deen Dayal and others v. State of U.P.,[ appellants, husband and in-laws of deceased,
allegedly beat her to death for non-fulfilment of dowry demand. Defence pleaded that deceased fell
down in well accidentally. There was persistent demand of dowry by appellants. They had subjected
deceased to cruelty in connection with dowry dernand. Evidence of brother and parents of deceased
established the said fact and medical evidence fully corroborated prosecution case that deceased was
thrown into well when she was already dead or was dying.-Therefore, appellants were held liable to
be convicted for the offence.
It was also pointed out that the words "soon before her death" used in Section 304-B are to be
understood in relative and flexible sense. Those words cannot be construed as laying down a
rigid/period of time to be mechanically applied in each case.
It was held in Kaliyaperumal v. State of Tamil Nadu,2 that one of the essential ingredients of
section 304-B of Indian Penal Code is that the concerned woman must have been "soon before her
death" subjected to cruelty or harassment "for or in connection with the demand of dowry". The
expression "soon before her death" is very relevant and the prosecution is required to show that soon
before the occurrence there was cruelty or harassment to the woman victim. "Soon before" is a
relative term and it would depend upon circumstances of each case and no straitjacket formula can
be laid down as to what would constitute a period of soon before the occurrence. It would be
hazardous to indicate any fixed period and that brings in the importance of proximity test. It is left
to be determined by the courts depending upon the facts and circumstances of each case. However
the interval should not be much between the concerned cruelty or harassment and the death in
question. There must be existence of a proximate and live link between the effect of cruelty based
on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has
become stale enough not to disturb mental equilibrium of the woman concerned, it would be no
consequence.
Meaning of "husband".—Reema Aggarwal v. Anupam,1 deals with legality of demand of

dowry in respect of invalid marriage. It was held that the concept of dowry is intermittently linked
with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of
1. (2009) I Cri. L.J. 1119 (S.C).
2. 2003 Cri. L.J. 4321 (S.C).
marriage itself is an issue further legalistic problems do arise. If the validity of marriage itself is
under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not
recognizable. Even then the purpose for which Sections 498-A and 304-B of I.P. Code and Section
113-B of the Evidence Act were introduced cannot be lost sight of. The obvious objective of
enacting above sections was to prevent harassment to a woman who enters into a marital
relationship with a person and later on becomes a victim of the greed for money. Can a person who
enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that
since there was no valid marriage the question of dowry does not arise. Such legalistic niceties
would destroy the purpose of the provisions. The Court further observed that the legislative intent is
quite clear from the fact that it is not only the husband but also his relations who are covered by
Section 498-A of IP. Code. Legislature had taken care of children born from invalid marriages.
Section 16 of the Hindu Marriage Act deals with legitimacy of children of void and voidable
marriages. Can it be said that Legislature which was conscious of the social stigma attached to
children of void and voidable marriages closed eyes to plight of a woman who unknowingly or
unconscious of the legal consequences entered into the marital relationship. If such a restricted
meaning is given, it would not further the legislative intent.
The first exception to Section 494 of IP. Code has also some relevance. According to it the
offence of bigamy will not apply to "any person whose marriage with such husband or wife has
been declared void by a Court of competent jurisdiction." It would be appropriate to construe the
expression "husband" to cover a person who enters into marital relationship and under the colour of
such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her
in any manner or for any of the purposes enumerated in the relevant provisions—Section
304-B/498-A Indian Penal Code whatever be the legitimacy of the marriage itself for the limited
puipose of the above sections.
It was also held that the absence of definition of "husband" to specifically include such
persons who contract marriages ostensibly and cohabitate with such woman in the purported
exercise of his role and status as "husband" is no ground to exclude them from the purview of
Section 304-B or 498-A of IP. Code viewed in the context of the very object and aim of the
legislations introducing those provisions.
S. 304-B ] 445
305. Abetment of suicide of child or insane person.—If any person under eighteen years of age, any
insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever
abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for
a term not exceeding ten years, and shall also be liable to fine.
COMMENT
Sections 305 and 306 apply when suicide is in fact committed. These sections have been
inserted because the ordinary law of abetment is inapplicable.
1.2004 Cri. L.J. 892 (S.C).

306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
COMMENT
Those who aid and abet the commission of suicide by the hand of the person himself who
commits the suicide, may be punished under this section. When another person, at the request of or
with the consent of the suicide, has killed that person, he would be guilty of culpable homicide
under exception 5 to Section 300. Those who assist a Hindu widow in becoming sati will be guilty
of abetment of suicide.1 B by instigation voluntarily causes C, a person of 18 years to commit
suicide. B will be liable under this section.
In State of Punjab v. Iqbal Singh,2 Mohinder Kaur, the deceased was a teacher while her
husband Iqbal Singh was a clerk in Punjab State Electricity Board. Relationship between wife and
husband were strained over dowry even to the extent that the wife had sought police protection
apprehending danger to her life. A divorce deed was also executed on 31, December 1977 but it was
not acted upon. Efforts by the wife to get herself transferred to some other school was also foiled by
the husband and pressure for dowry was stepped on death of wife's father. On 7th June, 1983
Mohinder Kaur set herself and her three children ablaze at the residence of her husband Iqbal Singh.
She took the extreme step of putting an end to her life as well as the lives of her three children since
she apprehended that their fate would be worse after her death. Before putting an end to her life she
had left a note stating that her husband was demanding Rs. 35,000 to 40,000 by way of additional
dowry and was ill-treating her under the influence of alcohol. She had also stated that her mother-in-
law and sister-in-law also conspired and made false accusations against her and had also conspired
to kill her on the night of 6th June, 1983 by sprinkling kerosene/petrol on her but their plan misfired.
Children were also ill-treated and she was fed up on account of the beating and has therefore
decided to put an end to her life and that of her children.
It was held that the husband was responsible for creating circumstances which provoked or
forced his wife to commit suicide and he was therefore liable to be convicted under Section 306.
Where it is alleged that the accused abetted to commit suicide but no dependable evidence in
regard to actual abetment by any of the accused is coming forth, the accused would be entitled to be
acquitted.3
In Arvind Kumar v. State of U.P.,* there was consistent reliable and trustworthy evidence to prove that accused husband constantly harassed, humiliated and
tortured his wife for bringing insufficient dowry articles. Consequently wife poured kerosene oil and set her body on fire and sustained 100 per cent burn injuries. Husband
though present in house at the time of incident made no attempt to save his deceased wife. He did not even bother to call doctor. Therefore presumption contemplated under
Section 113-A, Evidence Act would be attracted in facts and circumstances of the case. Accused husband failed to rebut that presumption. Therefore, conviction of accused
under Section 306, I.P.C. and Section 4 of Dowry Prohibition Act was held not to be illegal.
In Bhagwan Das v. Kartar Singh? the deceased Shobha was married to Mangal Singh (since
1. Ram Dayal, (1913) 36 All 26; Tejsingh, A.I.R. 1958 Raj 169.
2. 1991 Cri. L.J. 1897 (S.C).
3. Chanchal Kumari and others v. Union Territory of Chandigarh, 1986 Cri. L.J. 816 (S.C).
4. 2007 IV Cr. L.J. 3741 (S.C).
deceased) on 23-1-1992 and a girl child was born to them in 1999. After her marriage Shobha was
being taunted for bringing less money and was being harassed on account therefor. A sum of Rs.
50,000 was given by her father to her husband Mangal Singh after marriage for his business which
he squandered in gambling and drinking and raised further demand of Rs. 2 lakhs. Sobha was ill-
treated and harassed by present petitioner for not giving birth to a child untill 1999 when she gave
birth to a female child. Since after birth of girl child Mangal Singh was paralysed on account of
accident, the deceased was being taunted that she gave birth to a child which brought bad luck to her
father. Being fed up with this kind of harassment she committed suicide at about 2 a.m. in the night
of 2nd March, 2000 by hanging herself from the ceiling of a room in the matrimonial home.
S. 304-B ] 446
It was held that in case of harassment of wife by husband or in laws due to differences per se
does not attract Section 306 read with Section 107, I.P.C. if the wife commits suicide. For charge
under Section 306, I.P.C. there has to be something more.
In Sohan Raj Sharma v. State of Haryana? the first information report lodged by Shri Rajiv
Lochan Jain stated that Jyoti (hereinafter referred to as deceased) had written in her suicide letter
that her husband Sohan Raj Sharma, the accused/appellant was torturing her for sex in many
different ways, mostly pervert and tired of the same she had poisoned her children and had
consumed poison herself. The F.I.R. further stated that appellant, Sohan Raj Sharma, because of the
circumstances, had compelled Jyoti to consume poison. The suicide note described accused husband
as a sexual pervert. It was stated that the accused was impotent and was trying to defame her. She
also stated that she wanted to take his life. His cruel or insulting behaviour cannot be taken to be an
act of abetting suicide. It was held that ingredients of Section 306 were not established, therefore,
conviction of accused was improper.
It was also observed that abetment involves a mental process of instigating a person or
intentionally aiding that person in doing of a thing. More active role which can be described as
instigating or aiding doing of a thing is thus required before a person can be said to be abetting
suicide.
Instigation by conduct.—In Girija Shanker v. State of M.P.? one Dinesh was married with
Urmila. Sometimes after the marriage Urmila was being ill-treated by her husband and in-laws, who
had in fact started searching for another bride for Dinesh. She was made to strave and work like a
bonded labour and also subjected to mental and physical torture. One day her dead body was found
in a well situated at a distance of about a furlong from the house of appellants. The three were tried
under Section 302 and alternatively under Section 306 IP. Code. They were found guilty under
1. 2007 III Cri. L.J. 3420 (S.C).

2. (2008) 3 Cri. L.J. 2569 (S.C).
3. 1989 Cri. L.J. 242 (M.P.).
Section 306, I.P.C. The Court held that it is not necessary that instigation should be only in words
and may not be by conduct Direct evidence of any instigation or aid is not necessary. It is a matter
which can be deduced from the circumstances. In this case maltreatment and starvation coupled
with a search for another bride for their son was proved and therefore appellants were guilty of
abetment of suicide.
In Sahebrao v. State of Maharashtra? the deceased Sangita, daughter of complainant Ramrao
Laxman Darekar (PW-1) was married with appellant A-2 on 13-5-1990. Just after marriage the
accused husband of deceased demanded for a tape recorder. Father of the deceased persuaded that
tape recorder would be given in due course of time. Just three days after marriage when deceased
came to her parental house she told his father that Sahebrao the present appellant No. 1 was
demanding additional dowry amount of Rs. 10000/- as the dowry paid at the time of marriage was
not according to their status and A-2 was insisting for a tape recorder. A few days later when father
of the deceased visited her she told him that both A-l and A-2 were troubling her for fulfilling
dowry demand. Though PW-1 showed his inability to pay the amour: nut sent PW-3 to purchase a
tape recorder which was sent to accused persons through PW-3 and PW-4. The deceased came to
her parental home along with PW-3 and PW-4. After about a week younger brother of A-2 came to
take Sangita back to her matrimonial home and informed complainant that A-l had demanded Rs.
10,000/- and the deceased would not accompany him unless the money is given. However, PW-1
anyhow managed to send her daughter. A few months later when PW-1 went to see his daughter,
accused persons started questioning as to why he had not paid the amount and asked him to take his
daughter back. Thus, the harassment for dowry demand continued and she was even beaten during
this period. She had showed the marks of beating to witnesses. PW-1 persuaded her reluctant
daughter to go to her in-laws house on 6-9-1990 in the hope that situation would improve in due
course. On this date also A-2 told PW-1 that since the amount was not given PW-1 should take back
his daughter. While PW-1 was returning back on 7-9-90 the deceased daughter met him on his way
and told him that it would be very difficult for her to stay and also that he might not see her again.
On 8-9-1990, the cousin brother of A-2 informed PW-1 that his daughter was ill. When PW-1 along
with others went to the house of the accused he found his daughter dead, and no one of the family
was present. The doctor who conducted post-mortem report opined that cause of death was
respiratory failure due to poisoning.
In view of the facts and circumstances stated above the Supreme Court held that evidence of
father of deceased as corroborated by evidence of other witnesses shows that the deceased on
several occasions within a short span of four months of her marriage informed her father on many
1. 2006 Cri. L.J. 2881 (S.C).

S. 304-B ] 447
occasions about the constant harassment by accused husband and brother in law and showed marks
of beating. These facts clearly establish that accused created such difficult and hostile environment
that she was compelled to commit suicide. Thus, there was direct and reasonable nexus of
commission of suicide with act of cruelty. Therefore conviction of accused person under Section
498-A and Section 306 Indian Penal Code was held to be proper.1
In Didigam Bikshapathi and another v. State of A.P., victim committed suicide having been
insulted and humiliated by utterances made by accused. Suicide note clearly referred to background
in which victim took extreme step of taking away his own life. Further acts of accused appellants
and roles played by them were also referred in suicide note. It was held that under these
circumstances prayer to quash proceedings is liable to be rejected.
In Anand Mohan Sen and another v. State of West Bengal? deceased Bakulbala was married
to appellant No. 2, Gouranga Mohan in 1991. On 3-2-1994 she was found dead at the verandah of
her matrimonial home. Immediately, after the occurrence all the inmates of the house including the
appellants fled away from the house. The house was locked from outside. Father of deceased on
receiving the information of death of his daughter reached the spot and found the dead body of his
daughter lying in verandah. According to medical opinion death was by poisoning.
Thus, it was a case of unnatured death of deceased within 7 years of marriage. Deceased was
subject to physical and mental cruelty by husband and in-laws is clear from her letters. Discord
between parties is also proved as deceased was driven out of matrimonial home many times and
could join matrimonial home only after settlement with intervention of Panchayat. Therefore,
unnatural death of deceased has to be considered in such backdrop and totality of circumstances
must be considered. Further complicity of all members of matrimonial home is proved as there was
necessity of settlement through intervention of Panchayat. The plea of defence that the death was
accidental was held as not tenable because the dead body of deceased a newly wedded girl was
found lying in verandah of matrimonial house and the inmates did not make any effort to take
deceased to hospital. Therefore, conviction of the accused under Sections 306/498-A was held
proper as presumption under Section 113-A, Evidence Act can be raised against the accused.
307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to
fine ; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment
for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.—When any person offending under this section is under sentence of
imprisonment for life, he may, if hurt is caused, be punished with death.
Illustrations
(a) A shoots at Z with intention to kill him, under such circumstances that if death ensued, A would be
guilty of murder. A is liable to punishment under this section.
(b) A, with the iniention of causing the death of a child of tender years, exposes it m a desert place. A has
committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the
gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is
liable to the punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains
in A's keeping. A has not yet committed the offence in this section. A places the food on Z's table or delivers it
1. Saheb Rao v. State of Maliarashtrra, 2006 Cri. L.J. 2881 (S.C).
2. 2008 I Cri. L.J. 724 (S.C).
3. 2007 HI Cri. L.J. 2770 (S.C).
to Z's servant to place it to Z's table. A has committed the offence defined in this section.
COMMENT
This section deals with attempt to murder. It punishes those cases where execution of the
purpose falls short of a complete execution and the consummation is hindered by circumstances
independent of the will of another. The act or illegal omission, although it does not cause death, is
carried to such a length as, at the time of carrying it to that length, the offender considers sufficient
to cause death. The act done must be capable of causing death and death must have been intended.
For example, mixing of poison in food with the intention of causing death will be an offence under
this section even though no death occurs.' Thus in illustration (a) to this section A would be guilty of
attempt to murder even though Z sustains only injuries. Attempt is an intentional preparatory action
which fails to achieve its object because of the intervening circumstances independent of the person
who seeks its accomplishment.2
In State of Maharashtra v. Balram Bama Patil? it was held by the Supreme Court that to
justify a conviction under section 307 it is not essential that bodily injury capable of causing death
should have been inflicted. Although the nature of injury actually caused may often give
S. 304-B ] 448
considerable assistance in coming to a finding as to the intention of the accused, such intention may
also be deduced from other circumstances, and may even in some cases, be ascertained without any
reference at all to actual wounds. The section makes a distinction between an act of the accused and
its result, if any. Such an act may not be attended by any result so far as the person assaulted is
concerned, but still there may be cases in which the culprit would be liable under this section. It is
not necessary that the injury actually caused to the victim of the assault should be sufficient under
ordinary circumstances to cause the death of the person assaulted. What the court has to see is
whether the act, irrespective of its result, was done with the intention or knowledge and under
circumstances mentioned in this section. An attempt in order to be criminal need not be the
penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in
execution thereof.
Whether act committed must be capable of causing death.—In Vasadeo Gogte,4 the accused
fired two shots with a revolver at point blank range at the acting Governor of Bombay, but the bullet
failed to produce the desired result either because of some defect in the ammunition or the
intervention of a leather wallet and currency notes in his pocket. The accused was held guilty of an
offence under this section. It was observed by the Court that "to support a conviction under this
section the accused should have done the act with such guilty intention or knowledge and in such
circumstances that but for some intervening act the act would have amounted to murder in the
normal course of events." This view was also approved by the Supreme Court in Om Prakash v.
State of Punjab? wherein it was held that a person commits an offence under this section when he
has an intention to commit murder and in pursuance of that intention does an act towards its
1. Gem goo, A.I.R. 1942 Nag. 122.
2. Luxman, (1899) 2 Bom. L.R. 286.
3. 1983 Cri. L.J. 331 (S.C).
4. (1932) 34 Bom. L.R. 571.
commission irrespective of the fact whether that act is the penultimate act or not.2
In State of M.R v. Kashiram and others? it was held that it is sufficient to justify a conviction
under Section 307, IP. Code if there is present an intent coupled with some overt act in execution
thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The
section makes a distinction between the act of the accused and its result, if any. The Court has to see
circumstances mentioned in the section. Therefore, an accused charged under Section 307 IP. Code
cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple
hurt.
It was held in Madan Pal v. State of U.P? that if the intention is to commit murder and in
pursuance of that intention a person does an act towards its commission irrespective of the fact that
the act is penultimate or not, the offence under Section 307 Indian Penal Code would be made out.
Further it is not necessary that a bodily injury capable of causing death should have been inflicted
before an offence under Section 307 Indian Penal Code could have been caused. The intention of
the culprit is to be gathered from all circumstances and not merely from the number, location and
nature of the injuries inflected.5
Prior to Om Prakastis case6 where in the law relating to attempt to murder was finally settled by the Supreme Court there was difference of opinion amongst the
High Courts. The Bombay High Court had in Frances Cassidy's case7 held that there may be an attempt to murder under section 511 which does not come within section 307
and section 307 was not intended to exhaust all attempts to commit murder, which could be punishable under the Code. The Bombay High Court has differed with the above
view in Vasudeo Gogte's case8 which was decided in 1932. The Allahabad High Court has also differed with the former view of the Bombay High Court and has held that
section 511 does not apply to attempts to commit murder which are fully and exclusively provided for by section 307.9 The Court has further observed that "a person is
criminally responsible for an attempt to commit murder when, with the intention or knowledge requisite to its commission, he has done last proximate act necessary to
constitute the completed offence, and when the completion of the offence is only prevented by some cause independent of his volition."1 For the application of this section it
is not necessary that the injury inflicted should in itself be sufficient in the ordinary course of nature to cause death. This section applies even if no hurt is caused because the
causing of hurt is only an aggravating circumstances and not a necessary requirement for the offence of attempt to murder.' In Ghulani Qadir? the accused was in love with a
girl but she married with another man. While the girl had been at her parents' house the accused went there and inflicted severe wounds on her neck and jaw, but she
survived. The accused was held guilty of an offence under this section and the Court observed that all that is necessary to support a conviction for attempt to murder is the
intention with which the act is done and if once that intention is established the nature of the act will be immaterial. For the application of this section what is necessary is the
intention or knowledge, not the consequences of the actual act done for the purpose of carrying out the intention. If there is no intention to cause death then there must be
knowledge that the act is so imminently dangerous that it must be likely to cause death.3
1. A.I.R. 1961 S.C. 1782.

2. See also the observations of Mudholkar, J. in Sarju Prasad v. State of U.P, (1965) 1 Cri. L.J. 766 (S.C).
3. (2009) 2 Cri. L.J. 1530 (S.C).
4. 1999 Cri. L.J. 3383 (All.).
5. Per B.K. Sharma J. at 3385-86.
6. A.I.R. 1961 S.C. 1782.
7. (1867) 4 B.H.C. (Cr.) 17.
8. (1932) 34 Bom. L.R. 571.
9. Nidha, (1891) 14 All. 38.
10. Ibid.
S. 304-B ] 449
It was held in R. Prakash v. State of Karnataka? that it is sufficient to justify a conviction
under section 307 if there is present an intent coupled with some overt act in execution thereof. It is
not essential that bodily injury capable of causing death should have been inflicted. Although the
nature of injury actually caused may often give considerable assistance in coming to a finding as to
the intention of the accused. Such intention may also be deduced from other circumstances, and may
even, in some cases, be ascertained without any reference at all to actual wounds. The section makes
a distinction between the act of the accused and its result, if any. The Court has to see whether the
act, irrespective of its result, was done with the intention or knowledge and under circumstances
mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under section
307 of IPC merefy because the injuries inflicted on the victim were in the nature of a simple hurt.
It was held in State of Madhya Pradesh v. Imrat and another? that it is sufficient to justify a
conviction under Section 307 if there is present an intent coupled with some overt act in execution
thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The
whether the act irrespective of the result was done with the intention or knowledge and under
circumstances mentioned in the section. Therefore, an accused charged under Section 307 IP. Code
cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple
hurt.
In the instant case, the first blow was on a vital part, that is on the temporal region. Other
blows were on non-vital parts, that does not take way the rigour of section 307 of I.P.C. Since it is
clear that inspite of interference by five persons, the accused continued the assault. This clearly
indicates the intention of the accused and hence he is liable to be convicted under section 307 of
I.P.C.
1. Ghulam Qadir, (1936) 18 Lah. 111.
2. Ibid.
3. Abdul Raheman, A.I.R. 1943 Nag. 411.
4. 2004 Cri. L.J. 1391 (S.C).
5. (2008) 4 Cri. L.J. 3869 (S.C).
Cases.—In Khandu,1 a man struck another on the head with a stick, and believing him to be
dead set fire to the hut in which he was with a view to destroy all evidence of the crime. Medical
report revealed that the blow only stunned the deceased and the death was really caused by the burn
injuries. The accused was guilty of attempt to murder. The Madras High Court in a subsequent case
has observed that the above case was wrongly decided by the Bombay High Court. In its view the
accused should have been guilty of murder, because if the intention is to kill and the death results,
the accused succeeded in doing that which he intended to do and, if the acts follow closely upon one
another and are intimately connected with one another then the offence of murder has been
committed.2 In Kaliappa Goverdan,3 the accused persons in pursuance of a deliberate plan and with
the intention to kill a woman, decoyed her under pretense of taking her to a sick relation. On the
way they had a struggle with the woman and they dragged her either in an unconscious or semi-
conscious condition on to a railway linef putuher body across the railway line in such a way that her
neck lay across the rails, and she was killed by a passing train. The accused did not plead that they
believed the woman to be dead when they put her body across the railway line. The accused were
held guilty of murder. Similar view has been expressed by the Patna High Court in Lingraj Das* It
was held that if from the very beginning there is an intention to cause death, the offence is murder
even if death results from a series of closely connected acts done at more than one stage. The mere
fact that earlier assault did not result in death and that the victim was killed by a passing train where
she had been placed by the accused would make no difference.
The accused in the course of a quarrel with her sister-in-law and in a fit of anger flung her
three years old child into a pond which was about four feet deep and which was situated by the side
of her house. The child was picked up by a bystander. She had also expressed her wish that the
death of the child should rest as a curse on the woman with whom she was quarrelling. Under the
circumstances, it may be presumed that her intention was to cause death of the child. She was,
therefore, guilty of an offence under this section.5
Roy drew a loaded revolver completely from his pocket, but his arm was seized by Paul
before he could take any aim at Paul. While they were struggling, Roy said several times to Paul,
"You've got to die". In this case Roy will be liable for attempt to murder. If revolver was not loaded
he will not be liable for attempt but may be liable for assault under section 351 IP. Code.
Amar drew a loaded revolver completely from his pocket but his arm was seized by Bai want
before Amar could take any aim at Balwant. Before struggling Amar said several times to Balwant,
1. (1890) 15 Bom. 194.

2. Kaliappa Goundan, (1933) 57 Mad. 158.
3. Ibid.
4. (1944) 24 Pat. 131.
5. Nanaki Babu, (1909) 5 I.C. 138.
S. 304-B ] 450
"I will kill you", but he could not press the trigger of the revolver. Amar will be guilty of attempt to
murder.
In Om Prakash Tilak Chand1 the accused and his mother deliberately starved and ill-treated
accused's wife W because she had not brought any cash as dowry in her marriage. As a result of
starvation her health deteriorated day by day. She was neither given any medical treatment nor was
allowed to contact anybody outside the house. One day when accused's mother was away W
managed to escape from the house and got herself admitted in hospital. She narrated her woes and
sufferings to the doctor. The accused and his mother tried to take W back to their home but were not
allowed to do so. The condition of W was serious and she took about ten months to recoup. The
accused was held guilty for attempt to murder.
In a case a woman administered dhatura (a poisonous herb) to three members of her family.
None of them died. She was held guilty of attempt to murder because she must be presumed to have
known that the administration of dhatura was likely to cause death, although she might not have
administered it with that intention.2 In another case certain sweetmeats containing arsenic (a
poisonous substance) were sent to A with the intention of causing her death, B and C also shared it
but none of them died. The accused was held guilty of attempt to murder A as well as B and C.3
In Sachin Jana and another v. State of West Bengal? accused persons assaulted victim with
blows, kicks, iron rods etc. and poured acid on his face and body and on some other persons. It was
held that pouring of acid caused disfigurement and therefore conviction of accused under Section
307, I.P.C was proper.
In Hari Mohan Mandal v. State of Jharkhand? it was held that it is sufficient to justify a
conviction under Section 307 if there is present an intent coupled with some overt act in execution
thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If
the injury inflicted has been with avowed object or intention to cause death, the ritual nature, extent
or character of the injury or whether such injury is sufficient to actually causing death are really
factors which are wholly irrelevant for adjudging the culpability under Section 307 of I.P.C. The
circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the
charge under Section 307 of I.P.C. merely because the injuries inflicted on the victim were in the
nature of a simple hurt. In the instant case one injury inflicted on body of victim was grievous in
nature and was caused on the vital part and the evidence of prosecution witnesses was truthful hence
conviction of accused under Section 307 was proper. However, in view of the fact that there was no
premeditation or planning of the attack, accused was awarded custodial sentence of five years.
A inflicted a fatal wound on a vital part of C's body which in a short time was bound to result
in death. However, before death could occur B who was not an accomplice of A shot down C
causing instant death. Here B will be guilty of committing murder and A will be guilty for
attempting to commit murder because death was not the direct result of injury caused by A although
1. 1959 Cri. L.J. 368.
2. Tulsha, (1897) 20 All. 143.
3. Lodha Singh, (1920) 3 L.L.J. 191.
4. 2008 II Cr. L.J. 1596 (S.C).
5. 2004 Cri. L.J. 3112 (S.C).
the injury inflicted by him was sufficient in the ordinary course of nature to cause death. A drew a
loaded pistol from his pocket for the purpose of murdering B. but before he could do anything more
in pursuance of his design, the pistol was snatched out of his hand and he was arrested. He was
guilty of, attempting to shoot.' In another case 2 the accused, in a drunken state, was abusing people
in filthy language. A advised him to take rest, to which the accused protested. He immediately went
inside his house and brought out a gun and fired a shot at B but the shot hit C who was standing
nearby and C fell down. The accused was held guilty of an offence under this section read with
Section 301.
In Sahebrao Kisan Jadhav v. State of Maharashtra? eight persons who were workers of a
factory—Crompton Greeves Ltd., one of whom was a trade union leader, stormed into the cabin of
works manager, armed with iron rod and assaulted him resulting in multiple injuries. They also
assaulted some other officials. The assailants were annoyed because of disciplinary action having
been taken against some of them. It was held that the accused who had no right to enter cabins of
factory officers were guilty of criminal trespass as they stormed into their cabins without prior
permission with deadly weapons. The four accused were also liable for attempt to commit murder
under Section 307 and the defence plea that the victims were assaulted in succession and the time
spent in inflicting injury on each one of them was too short would not succeed. It was held that
where a group of persons assaults a single individual with iron rods, the duration of time required to
S. 304-B ] 451
kill would not necessarily be long and therefore the fact that the time spent on each one of them was
relatively short would not change the complexion of the assault.
In Praveen v. State of Haryana,4 on August 3, 1989 at about 11.00 p.m. the appellant
alongwith his two associates namely) Dhirendra and Prakash came in a tractor to 'Sangam Hotel'
which was run by Siri Narain. His two sons Rakesh and Radhey Sham used to help him in the said
business. They demanded empty glasses and cigarette packets. Radhey Sham gave two packets of
cigarettes but refused to give glasses telling that liquor was strictly prohibited in the hotel. The
accused persons then started taking neat liquor from their own bottles. Siri Narain (PW 2) protested
whereupon accused started abusing him and threatened to kill him. In the meantime appellant (A-l)
went to the tractor and brought a gun loaded with two cartridges and fired at Siri Narain. The bullet
did not hit Siri Narain as he stretched on the ground. The occurrence was witnessed by Rakesh,
(PW-3) and Radhey Sham (PW-6), servant Dharamvir and Surender. The double barrel gun was
seized from the appellant and one empty and one live cartridge were seized from the place of
occurrence. The above were testified by the victim and the prosecution case was also supported by
the report of Assistant .Director (Ballistics). It was held that the evidence was trustworthy and the
conviction could be based on his sole testimony. In the opinion of the Court a case under Section
307 has been made out and there was no need to disturb the conviction.
1. Brown, (1883) 10 Q.B.D. 381.

2. Surendra Bisoi, (1965) 2 Cri. L.J. 168.
3. 1992 Cri. L.J. 339 (Bom).
4. 1997 Cri. L.J. 252 (S.C).
In Jag tar Singh v. State of Punjab,1 on September 3, 1991. Naib Singh

(deceased) and his son Nachattar Singh (PW-3) had gone to-Mandi for selling
cattle. In the night -at about 9 p.m. Nidharak (PW-2) and his uncle Ajaib Singh,
brother of Naib Singh went to the house of Naib Singh to inquire whether they
had returned from Mandi. Reaching there they found them standing outside their
house. A little later four accused persons came there armed with deadly weapons
and started assaulting them. Jagtar Singh gave a blow on the head of Nachatter
Singh with a khapra, as a result of which he fell down. Bhura Singh then gave
him a kassauli blow and Harbans Singh a gandasa blow on the left side of the
head of Naib Singh who also fell down. When Nidharak Singh and Ajaib Singh
tried to separate them Jagtar Singh gave one khapra blow to Naib Singh near
his left ankle and Bhura Singh gave a Kassauli blow to Naib Singh on his left
thigh. Then Makhan Singh gave a blow with a sela on his left ankle and another
blow on his left thigh. When Ajaib Singh raised alarm the four accused persons
ran away from the spot. The motive ascribed for the assault was a dispute over
a water course for which proceedings under section 107, Cr. PC. were initiated
against both of them. Ajaib Singh and Gurdev Singh (another brother of Naib
Singh) took the injured to the health centre where they were examined by Dr.
P.C. Singh (PW-7). Naib Singh was transferred to P.G.I. Hospital Chandigarh for
better treatment where he succumbed to his injuries on 10-10-1991. His
postmortem examination was conducted by Dr. M.P. Singh (PW-1). After a
persual of the evidence of the two injured witnesses PW-2 and PW-3 and the
medical evidence the trial court held that only Harbans Singh was responsible
for the murder of Naib Singh and the other accused persons did not share the
common intention to commit the murder even though they also participated in
the assault upon him. The High Court agreed with the trial court that PW-2 and
PW-3 were reliable witnesses, but in disagreement with it held that the two
appellants Harbans Singh and Jagtar Singh shared a common intention in
committing murder of Naib Singh, attempting to commit the murder of PW-3
Nachattar Singh and causing grievous hurt to Naib Singh. The High Court
acquitted the other two accused Bhura Singh and Makhan Singh givipg them the
benefit of doubt. The Supreme Court held that there was no force in the argument
that the deceased Naib Singh died 17 days after the incident due to septicemia
as Dr. M.P. Singh (PW-1) who conducted the post-mortem examination
categorically stated that the septicemia was due to the head injury sustained by
Naib Singh and that the injury was sufficient in the ordinary course of nature
to cause death. The evidence of injured witnesses was reliable and corroborated
by medical evidence. There was no reason for interference in conviction of main
accused. The co-accused assaulted deceased on his left ankle with the weapon
he was carrying. He could be said to have intended to cause grievous hurt to
deceased and not to cause his death. He could be convicted under sections 307
and 326, Indian penal Code. The conviction of the accused under other sections
were set aside. >
In Shqnker Lai v. State of Haryana,2 the allegaions against the appellant were that on 25-6-86
at about 8.30 p.m. he assaulted Devi Lai with a knife and gave repeated stab blows to him in view
of the previous enemity between him and the appellant. In order to prove its case prosecution has
mainly relied on the evidence of victim Devi Lai himself and his father Hari Singh who according
to the prosecution had heard the cries of Devi Lai and seen the assault on him. It was pleaded in
1. 1999 Cr. L.J. 20 (S.C).
2. A.I.R. 1998 S.C. 3271.
defence that the victim was drunk at the time of incident and was beaten by villagers for teasing
woman. It was held that the defence version was denied by the witnesses and there is no other
material on the basis of which it can be said that this witness i.e. the victim was under influence of
liquor and had misbehaved with anyone. Identification of accused was possible as there was
sufficient light and as accused was a known person. As soon as the victim recovered consciousness
he named the appellant as person responsible for giving knife blows. He had categorically stated
that when he was returing after taking medecine for his mother and was near Ram Mandir, he was
attacked by the appellant. Even if the evidence of victim's father is discarded on the ground that
possibly he could not have seen the assault on his son as he had come out of his house after hearing
his cries, that will not have any effect on the conviction of the appellant as the evidence of Devi Lai
is quite sufficient to sustain the conviction of appellant under section 307, Indian Penal Code.
In State of M.P. v. Sangram,1 in case of offence of attempt to murder under Section 307 IPC sentence
of 7 years rigorous imprisonment imposed by the Trial Court and reduced by Appellate Court to less than one
year without assigning any satisfactory reason therefor was held liable to be set aside by the Supreme Court and
the matter was remitted back to the High Court for a fresh consideration of the appeal.
308. Attempt to commit culpable homicide.—Whoever does any act with such intention
or knowledge and under such circumstances that, if he by that act caused death, he would be
guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of
either description for a term which may extend to three years, or, with fine, or with --btifhT
and, if hurt is caused to any person by such act, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or with both.
Illustration
A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby
caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence
defined in this section.
COMMENT
This section is similar to Section 307. If Section 307 is treated as attempt to murder this section is treated
as attempt to culpable homicide not amounting to murder.
309. Attempt to commit suicide.—Whoever attempts to commit suicide and does any act
towards the commission of such offence, shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both.
COMMENT
' If the offender dies in suicide he or she cannot be punished for the offence,
but if the offender survives he or she is punished for attempt to commit suicide.
This is the only instance where actual commission of offence cannot be punished,
only attempt to commit the offence is punishable. R a village woman aged twenty
was ill-treated by her husband. There was a quarrel between the two and the
husband threatened that he would beat her. Late that night the woman taking her six
month old baby in her arms slipped away from the house.. After she had gone some
distance she heard somebody coming up behind her and when she turned round
and saw that her husband was pursuing her she got into a panic and jumped into a
nearby well with the baby in her arms. The baby died but R recovered. In this R
would not be liable for attempting to commit suicide for the word 'attempt' connotes
some conscious endeavour to accomplish the act and the accused in jumping down
the well was not thinking at all of taking her own life but only of escaping from her
husband.2 But she would be liable for committing culpable homicide not amounting to murder because when
she jumped into the well with a small baby of six months she must have known that her act is dangerous enough
1. 2005 Cri. L.J. 4642 (S.C).

2. Dhirajia, I.L.R. 1940 All. 647.
likely to cause death of the child by drowning.
454 INDIAN PENAL CODE i S 309
Where A in a state of drunkenness jumps in a well in an obvious attempt to commit suicide. A

would be liable for an offence under this section because it appears that he was voluntarily drunk and
he has not gone so deep under the influence of drink that he was unaware about what he attempted
to do.
A student leader of a University declared for self-immolation. He got logs piled up in front of
the main gate of the University and sprinkled kerosene oil Over it. Thereafter he climbed over the
pile of v/ood. In the meantime police came and registered a case for committing the offence of
'attempt to commit suicide'. He will not be liable for attempt to commit suicide because his act so
far only amounted to preparation and the possibility to change his mind before litting the fire for
self-immolation cannot be ruled out. But if he was caught by the police just after striking a match to
lit the fire, he will be guilty of attempt to commit suicide.
Z, a political worker in protest against certain orders of the district officials openly declares
that he would fast unto death and then proceeds to refuse to take any nourishment. Seven days after
the fast there is evidence that he is in imminent danger of death. When asked to give up the fast, he
insists on continuing it. In this case Z would be liable for attempt to commit suicide because he has
resorted to fast unto death and was continuing even though there was evidence of imminent danger
of death. It may also be argued that if Z changes his mind and does not proceed further the acts
already done would be harmless and as such no attempt is constituted but in view of the evidence of
imminent danger of death his act would not cease to be an attempt merely because he can prevent
the actual commission of the offence by his discontinuing the fast in pursuance of a changed
intention. He has done an act towards the commission of attempt. 1 But 'when the evidence falls
short of imminent danger, it-cannot be said to be sufficient to sustain the charge.
In State of Himachal Pradesh v. Jeet Singh,2 Sudarshana Devi wife of the accused Jeet Singh
was a young, fair and fashionable lass but ieucoderma' in its nascent stage had erupted small white
patches on her bossom. This became the cause of dislike for her husband towards her as he mistook
it to be a kind of leprosy. Jeet Singh who was an army man went home in April 1987, for his annual
leave. On the fateful night the couple went to bed in the'overy'O'.e. bed room of the house) but on
the next morning Sudarshna Devi was found dead. On getting the news her father rushed to the
house and saw dead body of his daughter. He entertained doubts about some foul play, so he
reported the matter telephonically to police. A joint postmortem conducted by two doctors revealed
that death of Sudarshana Devi was by smothering. Injuries were found on both legs of dead body.
Doctors after seeing the report of chemical analyser stated that poison would have worked fatally in
the victim. The prosecution version is that accused administered some kind of insecticide either
deceitfully or forcefully and smothered her. On discloser by Jeet Singh (PW-24) the Sub-Inspector
of Police recovered a bottle containing green insecticide, 1 a towel, a vest, a steel kauli, a steel glass
and some ground misri. The Sessions Judge counted circumstances adverse to accused that the
spouses were having strained relationship, medical evidence suggested administration of poison and
smothering of the deceased, recovery of incriminating articles on the strenghth of discloser of the
accused, the fact that accused and deceased were in the same room on the fateful night and that she
was found dead on the early morning and subsequent conduct of the accused. The Sessions Judge
reached the conclusion from the aforesaid circumstances that Sudarshana 'Devi was murdered by
the accused. But the High Court differed with conclusion drawn by the trial court and treated it a
1. Ram Sunder, A.I.R. 1962 All. 262.-

2. 1999 Cr. L.J. 2025 (S.C).
case of suicide. It was held by the Supreme Court that in view of large numbers of injuries
particularly injuries found on both legs of dead body, the doctors stating even without seeing
Chemical Analyser's report that death might be by smothering and after seeing the Chemical
Analyser's report doctors stating that poison would have worked fatally in the victim and the
455 INDIAN PENAL CODE i S 309
accused having opportunity to administer poison when he was in same room with the deceased on
fateful night acquittal of accused by High Court on coming to conclusion that deceased had
cornmited suicide is liable to be set aside. Therefore the acquittal was set aside and the order of
conviction passed by Sessions Judge was restored.
In Kavita v. State of Tamil Nadu? when PW-1 went to answer call of nature, he saw the
appellant jumping into a well situated nearby and when he ran to the well and looked down, he saw
that the appellant was struggling for her life and a male child's body was floating. He went to the
village and called three other, PW-2, PW-3 and one Meera to the place of occurrence. Three men
went down the well and brought out the appellant. When questioned by them she replied that she
could not withstand the daily torture at the hands of her husband and decided to bring an end to her
life. The fire service people came and look out the body of the male child from the well. It was held
that there is no witness who had seen the appellant throwing her children into the well. The jumping
of the appellant into the well is spoken to by PW-1 only and his versions are inconsistent. There is
no evidence on record showing that accused jumped into well after throwing her children therein.
The alleged extra judicial confession was not proved satisfactorily. The reason for delay in
conducting the postmortem on the next day is not available on record. The evidence of the doctor
who performed the postmortem is not very clear as to how the body of the son could instantly float
while the body of the daughter was fully sunk in the water. Testimony of the witness that he saw
body of boy floating when he looked into well immediately after accused jumped therein to commit
suicide is contradictory to prosecution case and against the principle of buoyancy of human body.
Guilt of the accused was held not to have been proved beyond doubt and therefore her conviction
under sections 300 and 309, Indian Penal Code, was set aside.
Suicide Pacts.—A and B have been married for some time and due to some family problems
they agree to commit suicide. A, the husband procures some poison which both of them take. A
survives while B. the wife dies as a result of taking poison. Here A would be guilty of attempting to
commit suicide under this section as well as for abetment, by aiding B to commit suicide under
Section 306.
Constitutionality of Section 309.—In Maruti Shripati Dubai v. State of Maharashtra? it was
held that right to live means right to live with human dignity. Right to live includes right to die. The
fundamental rights have positive
1. A.I.R. 1998 S.C. 2473.

2. 1987 Cr. L.J. 743 (Bombay).
456 F S. 310
INDIAN PENAL CODE
as well as negative aspects. If this is so logically it must follow that right to live as recognised by
Article 21 will include right not to be forced to live. The fundamental rights enumerated in Article
19 are only extensiveness of the right to life and have no meaning without it. Therefore Section 309
is violative of the rights guaranteed by Articles 21 and 19 of the Constitution. Further Section 309
also violates the right to equality guaranteed by Article 14 because it treats all attempts to commit
suicide by the same measure without regard to the circumstances in which the attempts are made.
But it was held in Chenna Jagadeeswar v. State of A.P.J that Section 309 IP. Code does not
offend Arts. 19 and 21 of the Constitution. It cannot be said that right to life includes right not to
live, i.e., right to die.
In P. Rathinam v. Union of India? the two writ petitions have been filed; one by P. Rathinam
and the other by Nagbhiisan Patnaik. Through these petitions the validity of Section 309 IP. Code
has been challenged on the ground that it is violative of Articles 14 and 21 of the Constitution. The
second petitioner has also prayed for quashing the proceedings against him under Section 309. It
was observed by the Supreme Court that Section 309 deserves to be effaced from the statute book to
humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a
person again (doubly) who has suffered agony and would be undergoing ignominy because of his
failure to commit suicide cannot be said to be against religion, morality or public policy, and an act
of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes
no harm to others, because of which State's interference with the personal liberty of the concerned
person is not called for. Thus Section 309 violates Article 21, and so, it is void.
But the above decision has been overruled by the Supreme Court in Gian Kaur v. State of
Punjab,3 it was held that Section 309 I.P.C. providing for imposition of punishment for attempt to
commit suicide is not violative of Article 14 of the Constitution. Right to die is not included in the
'right to life' under Article 21. Thus 'right to live' with human dignity cannot be construed to include
within its ambit the right to terminate natural life, at least before commencemerit of the natural
process of certain death. Article 21 cannot be pressed into service to support the challenge based on
Article 14. It cannot therefore be said that Section 309 IP. Code is violative either of Article 14 or
Article 21 of the Constitution.
310. Thug.—Whoever, at any time after passing of this Act, shall have been habitually
associated with any other or others for the purpose of committing robbery or child-stealing by
means of or accompanied with murder, is a thug.
COMMENT
This and Section 311 cover the provisions of the Thugee Act, 1836.
311. Punishment.—Wheover is a thug, shall be punished with imprisonment for life, and
COMMENT
In ancient India, gangs of persons habitually associating for the purpose of duping and
murdering the victim who was usually a traveller or other in order to take his property etc. were
called thug. This was so systematically prevalent that Lord Cornwalis had to make his best efforts to
eradicate this evil from India and Thugee Act, 1836 was passed. The trick was winning of the
1. 1988 Cr. L.J. 549 (A.P.).
2. A.I.R. 1994 S.C. 1844; 1994 Cr. L.J. 1605.
3. 1996 Cr. L.J. 1660 (S.C).
confidence of the victim and then murdering him with the help of scarf and coin putting around the
neck of the victim. Thug were systematically organized. To eradicate them it was essential to give
them a stricter punishment.
Association with persons habitual of committing robbery too is enough, no actual
commission of any act is necessary for the application of Section 310.
457 F S. 310
INDIAN PENAL CODE
OF THE CAUSING OF MISCARRIAGE, OF INJURIES TO UNBORN CHILDREN, OF
THE EXPOSURE OF INFANTS AND OF THE CONCEALMENT OF BIRTHS
312. Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry
shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the
woman, be punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both ; and, if the woman be quick with the child, shall be
punished with imprisonment of either description for a term which may extend to seven years,
Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.
COMMENT
This section deals with causing of miscarriage with the consent of the victim while the next section
deals with those cases where her consent is lacking. Ingredients.—The following are ingredients of
this offence :—
1. Voluntarily causing a woman with child to miscarry;
2. Such miscarriage should not have been caused in good faith for saving the life of
the pregnant woman.
The first ingredient includes the pregnant woman herself or any other person. A woman 'with
child' means a pregnant woman. 'Quickening' means perception by the mother of the movement of
the foetus in her womb. It is immaterial whether pregnancy is so advanced that foetus is moving in
the womb of the pregnant woman for the application of section. In Madras case where a woman was
acquitted on a charge of causing herself to miscarry, on the ground that she had only been pregnant
for one month and that there was nothing which could be called foetus or child, it was held that
acquittal was bad in law.1
Miscarriage means premature expulsion of the child or foetus from the mother's womb before
the completion of natural gestation period. It is always artificial while delivery is natural, though in
case of delivery also sometimes operation or other means are employed.
'Quick with child' literally means having conceived but it connotes the peculiar perception
felt by a pregnant woman when the foetus in the womb begins to move which generally occurs after
fourth or fifth months of the pregnancy.
313. Causing miscarriage without woman's consent.—Whoever commits the offence
defined in the last preceding section without the consent of the woman, whether the woman
is quick with child, or not, shall be punished with imprisonment for life, or with imprisonment
of either descritpion for a term which may extend to ten years, and shall also be liable to
fine.
COMMENT
Under this section miscarriage is caused without obtaining the consent of the woman hence
only the person who causes the abortion is punished and the woman is not punished, while in
section 312 the woman who causes herself to miscarry is also punished.
314. Death caused by act done with intent to cause miscarriage.—Whoever, with intent
1. Aclemma, (1886) 9 Mad. 369.
to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be
punished with imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine ;
If act done without woman's consent.—and if the act is done without the consent of the woman, shall be
punished either with imprisonment for life, or with the punishment above mentioned.
Explanation.—It is not essential to this offence that the offender should know that the act is likely to
cause death.
COMMENT
When miscarriage results in death the section applies. The act of the accused must have been
performed with an intention to cause the miscarriage of a woman with child.
315. Act done with intent to prevent child being born alive or to i cause it to die after
birth.—Whoever before the birth of any child does any act with the intention of thereby
preventing that child from being born alive or causing it to die after its birth and does by
such act prevent that child from being born alive, or causes it to die after its birth, shall, if
such act be not caused in good faith for the purpose of saving the life of the mother, be
punished with imprisonment of either description for a term which may extend to ten years,
COMMENT
This section covers the acts which result in the destruction of the child's life whether before
or after it's birth.
316. Causing death of quick unborn child by act amounting to culpable homicide.—
Whoever does any act under such circumstances, that if he thereby caused death he would be
guilty of culpable homicide, and does by such act cause the death of a quick unborn child,
shall be punished with imprisonment of either description for a term which may extend to ten
Illustration
458 F S. 310
INDIAN PENAL CODE
A, knowing, that he is likely to cause the death of a pregnant woman, does an act which, if it caused the
death of the woman, would amount to culpable homicide. The woman is injured, but does not die ; but the death
of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this
section.
COMMENT
This section deals with the offence of causing death of unborn children when they are in the
advanced stage of pregnancy beyond the stage of quickening i.e., when death is caused after the
'quickening' but before the birth of the child. The principle laid down in section 301 is applied here.
The offence of culpable homicide applicable to a living person (victim) would be applied in this
case where the sufferer is a quick unborn child whose death is caused by any act or omission of the
nature which would have caused the death of a living person as mentioned above.
317. Exposure and abandonment of child under twelve years, by parent or person having
care of it.—Whoever being the father or mother of a child under the age of twelve years, or
having the care of such child, shall expose or leave such child in any place with the intention
of wholly abandoning such child, shall be punished with imprisonment of either description
for a term which may extend to seven years, or with line, or with both.
Explanation.—This section is not intended to prevent the trial of the offender for murder or culpable
homicide, as the case may be, if the child dies in consequence of the exposure.
COMMENT
This Section punishes the parents or guardian for their failure to give proper care to the
children of tender age.
1. The guilty person must be father, mother or the guardian of the
child.
2. Such child must be under 12 years of age.
2. The child must be exposed or left in any place with the intention of wholly
abandoning it.
Expose.—Expose means putting of the child outside physically so that such putting outside
involves physical risk to the child. It suggests that the child would be deprived of the protection
necessary for it's tender age. It includes the risk of climate, wild beasts and the like wherein danger
to life may immediately ensue.
A woman, mother of an illegitimate, six month old child, left the child in charge of a blind
woman saying she would soon return with an intention to never return and factually did not return.
It was held that she could not be convicted under section 317.' In order to make the 'leaving' of child
an offence the child must be left without protection.2
318. Concealment of birth by secret disposal of dead body.—Whoever, by secretly burying
or otherwise disposing of the dead body of a child whether such child die before or after or
during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall
COMMENT
This section is designed to curb infanticide. This section applies where birth of a child is
concealed by secretly disposing of its body.
Ingredients.—The following are ingredients of this section—
1. The dead body of the child is disposed of by burying or otherwise secretly.
2. It is immaterial whether the child dies before, after or during it's
birth.
3. Intention to conceal the birth of the child by secret burial or
disposal of the dead body.
It applies where one intentionally conceals the birth of a child from the world at large. It is
sufficient to show that a 'child' was born and that it was sufficiently developed to have lived if born
alive.3 In case it is a foetus only then sections 312 and 511 of the Code will apply. The offence is
complete when the birth i.e. the delivery of a child dead or living, is concealed by any means.4
Where the accused gave her new born illegitimate dead child to a woman with instructions to
dispose it of secretly, and the latter carried out the instructions to dispose it of by throwing it into a
river, it was held that the accused was not guilty of a substantive offence under this section, though
the facts more appropriately came under the definition of abetment.5
Of Hurt
319. Hurt.—Whoever causes bodily pain, disease or infirmity to any person is said to
cause hurt.
COMMENT
Hurt means causing of pain, disease or infirmity by any person to another. 6 Such pain etc.
may not be caused by direct physical contact between the accused and the victim. Hurt must have
1. Mirchia, (1896) 18 All. 364.
2. Must. Bhuran, (1877) P.R. No. 5 of 1878.
3. Radha, (1899) 1 Bom. L.R. 155.
4. Lallu, (1898) Unrep. Cr.C. 961.
Baji, (1895) Unrep. Cr.C. 775.
Madho Singh, (1878) P.R. No. 22 of 1878.
459 F S. 310
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been caused by some voluntary act of the accused. Causing of nervous shock or mental
derangement by some voluntary act of the offender is covered by this section. The duration of the
state of mental infirmity is immaterial. 1 Acts which or neither intended nor likely to cause death
amount to hurt or grievous hurt according to the nature of the injury caused even though death has
resulted therefrom. The authors of the Code had observed :
"Many of the offences which fall under the head of hurt will also fall under the head of
assault. A stabs a blow which fractures a limb, the flinging of boiling water over a person, are
assaults and are also acts which cause bodily hurt. But bodily hurt may be caused by many
acts which are not assaults A person for example, who mixes a deleterious poison, and places
it on the table of another; a person who conceals a scythe in the grass on which another is in
the habit of walking; a person who digs a pit in a public path, intending that another may fall
into it, may cause serious hurt, and may be justly punished for causing such hurt; but they
cannot without extreme violence to language, be said to have committed assaults we propose
to designate all pain, disease and infirmity by the name of hurt."2
Bodily pain.—Bodily pain, except so slight a harm of which no person of
ordinary sense or temper would complain of, is covered by the definition of hurt.
The duration of pain is immaterial. Pulling a woman by the hair would amount
to hurt.3 \
In a case A the accused went with the Nazir of a court to execute a decree for ejectment from
a house which they had obtained against their sister's husband B, Delivery of possession was
resisted by the accused's sister S the complainant, on the ground that the house belonged to her and
she was not a party to the decree. The accused forcibly dragged the complainant out of the house.
The accused were held guilty under this section because she was not a party to the decree.4
Infirmity.—Infirmity means inability of an organ to perform its normal function which may
either be temporary or permanent.5 It denotes an unsound or unhealthy state of the body or mind;
such as a state of temporary impairment or hysteria or terror.6
Act neither intended nor likely to cause death.—Where there is no intention to cause death or bodily injury as is likely to cause death or there is no knowledge
that death is likely to be caused from the harm inflicted, and death is caused, the accused would be guilty of hurt only if the injury caused was not serious. In Nga Shwe Po,1
the accused struck a man one blow on the head with a bamboo yoke and the injured man died afterwards in a hospital principally from excessive use of opium surreptitiously
administered by his friends, he was guilty of an offence under this section because there was no intention to cause death and the blow in itself was not of such a nature as was
likely to cause death. In another case the accused with a view to chastising her daughter aged about 8 to 10 years for impertinence gave her a kick on the back and two slaps
on the face, as a result of which she died, it was held that the accused was guilty of causing hurt.1
Spleen cases.—In a ca^se,2 a woman died from a chance kick in the spleen inflicted by her
husband on provocation. Her husband did not know about the spleen being diseased and had no
intention or knowledge that the act was likely to cause hurt endangering human life. It was held that
he was guilty under this section. In another cases 3 the accused caused death of a person by throwing
1. Jashamnal v. Brahmanand, (1943) 45 Cr. L.J. 247 : A.I.R. 1944 Sindh 19.
2. Note M.P. 151.
3. (1883) Weir 3rd Ed. 196.
4. Abdul Sattar v. Smt. Moti Bibi, A.I.R. 1930 Cal. 720.
5. Anis Beg, (1923) 46 All. 77 at p. 79.
6. Jashamnal v. Brahmanand, (1943) 45 Cr. L.J. 247 : A.I.R. 1944 Sind 19.
7. (1883) S.J.L.B. 179.
a piece of brick at him which struck him in the region of the spleen and ruptured it. The spleen was
already diseased. Since the accused did not have the intention to cause death or such bodily injury
as was likely to cause death, he was liable for causing hurt only.
Poisoning.—In Anis Beg,4 the accused aged about 16 years was in love with a girl who was 3
to ■ 4 years younger to him. The accused intending to administer to her something in the nature of a
love philtre, induced another younger than himself to give the girl some sweetmeats (peras), which
was taken by the girl as well as some of her family members. All those who took it were seized with
more or less violent symptoms of dhatura poisoning though none of them died. The evidence did
not show that the boy who actually handed over the sweetmeats knew that they contained anything
harmful. The accused was guilty of causing hurt.
Kicking.—In Maraha Goundan,5 the accused demanded one anna from the deceased which
the latter owed him. The deceased promised to pay later Thereafter the accused kicked him twice on
the abdomen and the deceased collapsed and died. The accused was held guilty of causing hurt as it
could not be said that he intended or knew that kicking on the abdomen was likely to endanger life.
320. Grievous hurt.—The following kinds of hurt only are designated as "grievous" First.—
Emasculation^
Secondly.—Permanent privation of the sight of either eye. Thirdly.—
Permanent privation of the hearing of either ear. Fourthly.—
Privation of any member or joint.
460 F S. 310
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Fifthly.—Destruction or permanent impairing of the powers of any member or joint. Sixthly.—
Permanent disfiguration of the head or face. Seventhly.—Fracture or dislocation of a bone or
tooth.
Eightly.—Any hurt which endangers life or which causes the sufferer to be during the space of
twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
COMMENT
Grievous hurt is a more serious kind of hurt. It must be a hurt of any of the kinds stated in
this section and must also be voluntarily inflicted. 6 The authors of the Code observed : "We have
found it very difficult to draw a line between those bodily hurt which are serious and those which
are slight. To draw such a line with perfect accuracy is, indeed absolutely impossible, but it is far
better that such a line should be drawn, though widely, than that offences some of which approach
in enormity to murder, while others are little more than frolics which a good natured man would
ha/dly resent, would be classed together."1
1. Beshor Bewa, (1872) 18 W.R. (Cr.) 29.
2. Bysagoonashyo, (1867) 8 W.R. (Cr.) 29.
3. Randhir Singh, (1881) All. 597.
4. (1923 ) 46 AH. 77.
5. A.I.R. 1941 Mad. 560.
6. Budri Roy, (1875) 23 W.R. (Cr.) 65.
Emasculation.—'Emasculation' means depriving a person of masculine vigour, castration.

Causing such injury to the scrotum as would render a man impotent is covered by this term.
Causing injury to himself resulting in emasculation is not within the purview of this section. 2 What
is required by this section is voluntarily causing such injury to another which deprives that person
of his masculine vigour.
Disfiguration.—'Disfiguration' means causing such injury to a man which detracts from his
personal appearance, but does not weaken him. For example, cutting off of a man's nose or ear or an
injury resulting in some permanent mark on the face of a person. Where the cheeks of a girl were
branded with a red-hot iron, which left scars of a permanent character, the injury was held to be
disfiguration under this section.3
Fracture or dislocation of a bone. —Fracture or dislocation of a bone is also considered to be
a grievous hurt because it causes great pain to the person injured. May be that the bone fractured
may be rejoined or the bone dislocated may be reset but this does not alter the nature of injury
because of painful suffering it causes to the victim. Ordinarily 'fracture' means 'breaking' but in
certain cases bone may not break, there may be only crack. For example fracture, of skull bone. But
if it is a crack it must extend from the outer surface of the skull to the inner surface. 4 If a cut results
only in a scratch and does not go deep into any length into the bone it cannot be deemed a fracture;
but where the bone has been cut to the depth of half an inch it would be a case of fracture. 5 A scratch
or cut which does not go across the bone cannot be said to be a fracture of a bone within the
meaning of this section.6
Any hurt which endangers life.—Where the hurt inflicted is such as only endangers life it
would be grievous hurt and if it is likely to cause death it would amount to culpable homicide not
amounting to murder. The distinction between culpable homicide not amounting to murder and
grievous hurt is very thin. In case of grievous hurt the injury which is actuary found should itself be
such that it may put the life of the injured in danger. 7 For example, a wound on the neck inflicted
with a sharp edged weapon is considered 'dangerous to life'.8
Hurt which causes sufferer severe bodily pain. —Under clause (8) an injury would amount to grievous hurt if "causes the sufferer to be during the space of twenty
days in severe bodily pain, or unable to follow his ordinary pursuits." The mere fact that the suf;rer was hospitalised for twenty or more days would not be sufficient, he must
have been during that period unable to follow his ordinary pursuits.9 Continuance of severe bodily pain for 20 days or disability to follow one's avocation for 20 days
constitutes grievous hurt; if it continues for a period less than 20 days it would be an offence of hurt.10
Acts neither intended nor-likely to cause death may amount to grievous hurt even
though death is caused.—If there was not intention to cause death, or no intention to cause such
bodily injury as was likely to cause death or no knowledge that death was likely to be caused from
the harm inflicted, and death is actually caused, the accused would be guilty of voluntarily causing
1. Note M.P. 151.
2. Madho Singh, (1878) P.R. No. 22 of 1878.
3. Antabin Daboba, (1863) 8 B.H.C. 101.
4. Maung Po Yi v. Mo E Tin, (1937) 38 Cr. L.J. 960.
5. Makkasamy, 1965 Cr. L.J. 48.
6. Kalya, 1955 Cr. L.J. 579.
7. Government of Bombay v. Abdul Wahab, A.I.R. 1946 Bom. 38.
8. Muhammad Raft, A.I.R. 1930 Luck.
9. Va.ua Chela, (1894) 19 Bom. 247.
10. Bislmooram Surma, (1864) 1 W.R. (Cr.) 9.
grievous hurt if the injury caused was of a serious nature. In Gornvulue,1 the accused in his bid to
461 F S. 310
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steal snatched the nose-ring of a woman resulting in cutting of the nostrils and death of tire woman,
he was held guilty under this section and not for murder because death was entirely unexpected and
cutting of the nostrils was to facilitate the theft.
In Fonnina Sebastio Azardeo v. State of Goa, Daman & Diu,2 the deceased (Orlando) was making
publicity about the illicit intimacy between N and his maternal aunt W. It is alleged that on the
fateful day N. W and A, the husband of W caught hold of D and tied him to an electric pole with a
rope and beat him as a result of which he died. None of them was armed with deadly weapons and
none expressed his intention by word or gesture to put an end' to the life of the deceased. N and W
did so simply to teach D a lesson for spreading scandalous information about their illicit
relationship. There was no evidence attributing definite overt act to any of the accused.
It was held that in the absence of any definite evidence attributing specific overt act to any of
the appellants, it would not be safe to allege that the appellants intended to cause the death of th€
deceased. Hence the offence would be punishable under section 326 in so far as N and W are
concerned but A was entided to acquittal for want of proper evidence against him.
Diseased spleen.—In Bharat Singh? the accused in order to rescue his cattle which were
impounded by the deceased gave him a sound beating for his refusal to surrender the cattle. The
deceased, who was an old man aged about sixty, suffering from enlarged heart, succumbed to the
injuries. The accused was held guilty of causing grievous hurt because he had no knowledge of the
condition of the deceased.
Blow aimed at one person falling upon another.—Where the accused aims a blow at one
person but it falls upon another he may be guilty of grievous hurt or culpable homicide not
amounting to murder depending upon the nature of injury. In Kure,4 two parties exchanged blows in
a public place. In the course of fight severe injuries were inflicted and suffered by both sides. On
the side of the complainant a girl of tender age was sitting very close by the side of her father. She
received a sever blow on the head resulting in her death. The accused were held guilty of causing
grievous hurt.
321. Voluntarily causing hurt.—Whoever does any act with the intention of thereby causing hurt to any
person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby
cause hurt to any person, is said "voluntarily to cause hurt".
322. Voluntarily causing grievous hurt.—Whoever voluntarily causes hurt, if the hurt which he intends
to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous
hurt, is said "voluntarily to cause grievous hurt".
Explanation.—A person is not said voluntarily to cause grievous hurt except when he both causes
grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily
to cause grievous hurt, if, intending or knowing himself to be likely to cause grievous hurt of one kind, he
actually causes grievous hurt of another kind.
Illustration
A, intending or knowing himself to be likely permanently to disfigure Z's face, gives Z a blow
which does not permanently disfigure Z's face, but which causes Z to suffer severe bodily pain for the
space of twenty days. A has voluntarily caused grievous hurt.
1. A.I.R. 1945 Mad. 73.

2. 1992 Cri. L.J. 107 (S.C).
3. A.I.R. 1932 Oudh 279.
4. A.I.R. 1919 All. 379.
323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for
by section 334, voluntarily causes hurt, shall be punishable with imprisonment of either
description for a term which may extend to one year, or with fine which may extend to one
COMMENT
This is a general section which provides punishment for voluntarily causing hurt. The other
sections which deal with hurt are 324, 327, 328, 329 and 330 but under certain aggravated form and
circumstances. When there are certain mitigating circumstances due regard for them in punishment
is given under Sections 334, 336 and 337. A prosecution under this section does not abate by reason
of the death of the person injured.1
In Badruddin v. State of U.P.,2 Nizamuddin was armed with knife and the appellant
Badruddin, Hafiz and Siddiqui were armed with lathis. It is alleged that Nizamuddin dealt blows
with knife and Siddiqui dealt blows with lathi upon the deceased. When Mohd. Usman (PW-1),
Mohd. Hanif (PW-5) and Ali Hamze (PW-3) tried to intervene they were attacked with lathis by the
appellant and Hafiz. The allegation against the appellant was that he along with three others had
caused injuries causing death of deceased. The appellant dealt blows with lathi not to the deceased
but to other witnesses. It was held that no overt act in regard to assaulting deceased is attributed to
the. appellant. There is no direct evidence of common intention. There is no evidence of exhortation
by him or of the fact that with a view to keep the said witnesses away from interfering and to
facilitate Nizamuddin to kill the deceased the appellant assaulted the said witnesses therefore having
regard to the facts and circumstances of the case it is not possible to arrive at the conclusion that the
appellant and others shared common intention to kill the deceased Shaukat Ali. Consequently the
462 F S. 310
INDIAN PENAL CODE
conviction of the appellant under section 302/34, Indian Penal Code is not sustainable. The
conviction under section 323/34, Indian Penal Code awarded by courts below was~ confirmed.
In Bhima v. State of Maharashtra? it is alleged that about 22 persons formed an unlawful
assembly with the common object of murdering Vithal and causing injury to Bhimrao brother of
Vithal and also to cause damage to the 'wada' at Dambaldar. These persons who attacked were
armed with sticks or pelted stones which they could find anywhere either near the fields or on their
way. It was not established as to who specifically attacked whom. It is not clear whether the
intention was to cause death. It is more probable that the intention was to give hard beating only.
The court said that even if we accept that the deceased Vithal was pursued right upto the 'wada', the
object of the mob was to teach him a stern lesson who is said to be a bully in the village. In the
circumstances and in the light of evidence the court held that the reasonable inference to be drawn is
that the common object was to commit offences under section 323 and section 325 read with section
147/149 of the Indian Penal Code and not under section 302 read with section 149 of Indian Penal
Code. Thus, the accused appellant persons were held entitled to be acquitted of the charges under
section 302 read with section 149 of the Indian Penal Code.
324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the
case provided for by section 334, voluntarily causes hurt by means of any instrument for
shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely
to cause death, or by means of fire of any heated substance, or by means of any poison or
any corrosive substance, or by means of any explosive substance, or by means of any substance
which it is deleterious to the human body to inhale, to swallow, or to receive into the blood,
or by means of any animal, shall be punished with imprisonment of either description for a
1. Muhammad Ibrahim v. Sha Dawood, (1920) 44 Mad 417.

2. A.I.R. 1998 S.C. 3293.
3. 2002 Cri. L.J. 4293 (S.C).
term which may extend to three years, or with fine, or with both.
COMMENT
The modes described in the section if employed make the hurt so caused grave and as such
liable to more severe punishment.
In Ajay Sharma v. State of Rajasthan,1 it was alleged that the appellant Ajay Sharma along
with two others, namely, Daljeet Singh and Ganeshi came on a motor cycle. Ganeshi and Ajay
Sharma caught hold of Kailash Soni and exhorted Daljeet Singh to strike him. On that Daljeet Singh
gave 2-3 blows with his kripan to Kailash Soni which resulted in his instant death. It was held that
from the averments in the F.I.R as well as from the statement of PW-1 it cannot be said that the
appellant shared common intention to kill. The appellant might not have been knowing that Daljeet
was having a Kripan under his stockings. The instigation by him was only to strike as he said
"maro" and as such his conviction under section 302, read with section 34, is not sustainable. The
conviction was therefore set aside, instead he was convicted under section 324 read with section
110 Indian Penal Code.
In Matadin v. State of Maharashtra,2 the allagation was that co-accused (Matadin) by using
abusive term "maro sale ko" exhorted main accused Ram Singh who thereby assaulted deceased
with knife on his abdomen and on back also. The statement of eye-witnesses corroborated with
dying declaration and medical evidence also showed that injury on person of the deceased was
sufficient to cause his death. Main accused Ram Singh was convicted for the offence of murder
under section 302, Indian Penal Code. The trial court had held that out of many accused only
Matadin gave a "gupti" blow on the back of the deceased and therefore he was also held liable
under section 302 read with section 34, Indian Penal Code by the trial court. It was held by the
Supreme Court that from concurrent findings of fact by both the trial court and the High Court it is
clear that the ingredients of the offence of murder are present in the case of Ram Singh and he has
been rightly convicted for an offence under section 302, Indian Penal Code. It was further pointed
out that the case of Matadin is different as co-accused did not share the common intention with the
main accused to cause death of deceased. Though words 'maro sale ko' were used by Matadin co-
accused in abusive way but from that it could not be said that he exhorted main accused to kill
deceased. Therefore the Supreme Court held that the co-accused was guilty of abetment and as such
he was convicted under section 324 read with section 110, Indian Penal Code.
In Pamula Saraswathi v. State of Andhra Pradesh? ten accused persons formed an unlawful
assembly and committed murder of one Pamula Narayan. They committed theft of Rs. 8,000/- from
the person of the deceased and also attacked and caused injuries to the wife of deceased and
committed theft of ear studs of the wife of the deceased. The ten accused were charged under
sections 148, 324, 326, 379 and 302, Indian Penal Code. No charge was framed under section 34 or
149, Indian Penal Code. Wife of the deceased was the only eyewitness. She deposed that A-l hacked
the deceased on left side of the forehead and below the left knee. Accused No. 2 hacked the
deceased on the right side of the forehead and on the right shoulder, A-6 hacked the deceased on
head and left side of the forehead and A-3 hit the deceased with an axe on the right side of ribs.
Thus, she attributed overt act to these four accused persons and specified the injuries caused by each
463 F S. 310
INDIAN PENAL CODE
one of them. In the opinion of the doctor the death' of deceased was a result of blow to the rib of the
deceased and that blow was given by A-3.
The trial court acquitted all except A-l, A-2 and A-6 and accused A-3 and the three accused
were convicted under section 302 of Indian Penal Code simpliciterle.,
1. A.I.R. 1998 S.C. 2798.
2. 1999 Cri. L.J. 22 (S.C).
3. 2003 Cri. L.J. 2531 (S.C).
without the aid of section 34 or 149 of Indian Penal Code. The trial court also convicted them under
sections 324 and 379 of Indian Penal Code. In appeal the High Court also found the three accused
appellants guilty of offence under section 324 of Indian Penal Code.
It was held by the Supreme Court that- the respondents were not charged under section 302
read with section 34 or 149 of Indian Penal Code. The High Court, therefore, was right in setting
aside their conviction under section 302 of Indian Penal Code. The High Court termed the other
injuries as simple and not on vital parts of the body and were thus not grievous under section 320 of
Indian Penal Code. Obviously there is no evidence on record that any of the other injuries were such
as would, in the ordinary course, have resulted in death. Thus, the Supreme Court saw no reason to
interfere with the conviction under section 324 of Indian Penal Code.
In Parasuram Pandey v. State of Bihar,1 on 24-12-1989 at about 1.30 p.m. when Birender
Pandey (Pw-6), Bharat Pandey (Pw-5) and Kanhaiya Pandey (deceased) were standing in their field,
Raghunath Pandey drove his buffalo to graze crop grown in Birender Pandey's field which was
objected by Birender Pandey. Thereupon Raghunath Pandey abused him which was resisted by
deceased Kanhaiya Pandey. On this Raghunath Pandey went to his residence and returned with
other accused persons armed. Raghunath was armed with rifle, Parasuram Pandey and Bishram
Pandey armed with gun and Somaru Pandey armed with spear. On exhortation by Somaru Pandey
(Pw-2) and Shradha Ram, Raghunath Pandey fired four shots by rifle. Two shots hit Kanhaiya who
fell down after receiving injuries. Thereafter the appellant and other accused persons started
indiscriminate firing by their guns which caused injuries to villagers. Somaru Pandey hurled spear
towards Birender and Bharat Pandey which caused injuries to Bharat Pandey by lathi portion of
spear. In the meantime Surender Pandey and Ram Eqbal Pandey (Pw-4) reached the place of
occurrence and saw it. Thereafter the accused persons ran away. Kanhaiya Pandey was taken to
hospital where he was-declared dead. Death was due to hemorrhage and shock as a result of the
firearm. The 'other injured persons namely, Hriday Shanker Rai, Sampur Kumar Singh, (Pw-2)
Rajesh Singh and Mathura Singh sustained simple injuries which were caused by suspected gun
shot. The Trial Court and High Court relying on the statement of (Pw-3) Surendra Pandey, Ram
Eqbal Pandey Pw-4, Bharat Pandey (Pw-5) and Birender Pandey (Pw-6) convicted the accused
persons Parasuram Pandey, Bishram Pandey and Somaru Pandey under Section 302 read with
Section 149 I.P.C.
It was held that in view of the fact that after verbal altercation accused went home and
returned armed with other armed co-accused and immediately started firing but the co-accused
persons neither fired at deceased nor at witnesses accompanying deceased, therefore, co-accused
persons even if they accompanied accused armed cannot be said to have formed unlawful assembly
with common object to murder deceased as the incident took place within so short a span of time.
Hence, co-accused Parasuram Pandey, Bishram Pandey and Somaru Pandey were acquitted of the
charge under Section 302/149 and convicted under Section 324 read with section 34 I.P.C.
The two accused Parasuram and Bishram were also convicted under Section 307. In this
regard it was held that for an offence under Section 307 of I.P.C.
1. 2004 Cri. L.J. 4978 (S.C).

intention or knowledge to cause death is essential. In this case co-accused were alleged to have
indiscriminately fired at villagers who sustained simple injuries. None of witnesses stated that guns
were used by co-accused to cause injuries to them. Therefore no intention or knowledge to cause
death could be proved and co-accused are entitled to be acquitted of charge under section 307.
However, when co-accused fired indiscriminately, they did so with common intention to ward of
retaliation and hence constituted unlawful assembly. Therefore all co-accused are liable to be
convicted under Section 324 read with section 149 of I.P.C.
325. Punishment for voluntarily causing grievous hurt.—Whoever, except in the case provided for
by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to line.
COMMENT
In Dukhamochan Pandey v. State of Bihar,1 a mob of 200 persons came to the field armed
with different weapons with a sole object to desist the prosecution-party from carrying on
transplantation operation in the field. At the spur of moment on account of certain 'lalkara' being
given by some of the accused persons, some of those armed with weapons started assaulting the
464 F S. 310
INDIAN PENAL CODE
deceased resulting in his death. The accused were charged and tried under Section 302, read with
Section 34. It was held that all the accused cannot be convicted for committing murder. The mere
fact that the accused persons were armed with some weapons itself would not be sufficient to
attribute common intention of all of them to commit murder from mere assault even not on vital
parts of the body which ultimately resulted in causing some minor injuries, it may not be sufficient
to establish beyond reasonable doubt that they also shared a common intention of causing murder of
deceased. In such a case, the conviction of accused under Section 302/34 cannot be sustained and
they would be liable to be convicted under Section 325/34. However, persons firing guns on hearing
'lalkaras' would be liable to be convicted under Section 302, read with Section 34, IP. Code.
In Radhey Shyam v. State of U.P.,2 the appellant and the other two co-accused were convicted
by the the trial court under section 302, Indian Penal Code. In appeal the High Court held that the
accused had acted in exercise of right of private defence but had exceeded that - right and therefore
their conviction under section 302, was not proper and as such it convicted them under section 304,
Part I, Indian Penal Code. The appellant Radhey Shyam was not shown to have given any fatal blow
likely to cause death of deceased. The accused Ramanand had also received injuries during the same
incident. Therefore it was held by the Supreme Court that the three convicted accused had exceeded
the right of private defence but there is no evidence to show that the appellant had given the fatal
blow or any blow which was likely to cause the death of Ram Saran. In absence of such evidence
the appellant could have been convicted only under section 325 and not under section 304, Part I,
Indian Penal Code. Therefore the order of conviction of the appellant was altered from section 304,
Part I to section 325, Indian Penal Code.
In State of Haryana v. Mange Ram? the respondent Mange Ram attacked the deceased by
giving a lathi blow on his left calf, his son Krishan gave a pharsa blow on his right foot and the
1. 1998 Cri. L.J. 66 (S.C).
2. 1999 Cri. L.J. 590 (S.C).
3. 2003 Cri. L.J. 830 (S.C).
other son Joginder Singh hit him with ballam on the right calf and Kaptan Singh brother-in-law of
Mange Ram gave him a lathi blow on the left wrist. Joginder also gave ballam blow on the left
elbow of the deceased felling him on the ground whereafter all the four accused inflicted more
injuries on the deceased while he was lying on the ground. After inflicting these injuries they ran
away from the place of occurrence which was witnessed by PW-5, Bhim Singh and one Sant Ram
in front of whose house the deceased was smoking hukka. Information regarding occurrence was
given by PW-5 to Sube Singh (PW-8), father of the deceased. PW-8 came to the spot. The deceased
was removed to civil hospital where he was medically examined by PW-4 Dr. D.S. Rane. As per
medical report 10 injuries were caused out of which injuries 1, 2 and 8 of the report were of
grievous nature. Dr. Rane deposed that none of the injuries either individually or collectively,
appeared to be dangerous to life. The injured was last attended by Dr. A.N. Gupta (PW-7) in the
Medical College and Hospital Rohtak. According to him the injured was initially given blood of 'A'
group but subsequently blood of that group went out of stock and therefore he was given blood of
'O' positive group. He further deposed that he could not say if the patient died because of blood
reaction or because of injuries suffered by him but he did depose that there was fear in his mind
about blood reaction and therefore he gave medicine to prevent it. Under these circumstances the
Sessions Judge concluded that the possibility of injured having died because of blood reaction
cannot be ruled out thoug doctor conducting the post-mortem had deposed the cause of death as
rupture of liver on account of injuries.
It was held by the Supreme Court that in view of the medical evidence available the view
taken by the Sessions Judge is plausible and therefore the accused has rightly been convicted for
offence under sections 325 and 326 read with section 34 of Indian Penal Code and not for offence
under section 302 read with section 34 of Indian Penal Code.
In Mathai v. State of Kerala? while Krishnan Kutty (Pw-1) was walking along the public
road, the accused hit him on his head and face with a stone causing injuries. The injured was taken
to hospital for the treatment. On the basis of statement given by the injured, Kumaran, the Head
Constable, Pw-7 registered the first information report and Assistant Sub-Inspector Radhakrishnan
took up the investigation and submitted the charge-sheet after completion of investigation. During
trial the injury sustained by Pw-1 on the date of occurrence was not seriously disputed by the
prosecution and the medical certificate issued by the Doctor who examined him also supported the
injuries. The injury was also corroborated by evidence of Pw-2 who was an eye-witness. Thus, the
trial Court convicted him under Section 326 of I.P.C. for causing injury with a dangerous weapon.
The conviction was also upheld by the High Court. In appeal the Supreme Court held that whether a
particular article can per se cause any serious wound or grievous hurt or injury has to be determined
factually. The evidence of doctor clearly shows that the injury that was caused was covered under
1. 2005 Cri. L.J. 898 (S.C).

465 F S. 310
INDIAN PENAL CODE
the expression "grievous hurt" as defined under Section 320 of I.P.C. The inevitable conclusion is
that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous
weapon. It would depend upon the facts. The facts involved in a particular case depending upon
various factors like size, sharpness, would throw light on the question whether the weapon was a
dangerous or deadly weapon or not that would determine whether in the case Section 325 or Section
326 would be applicable. In the instant case, considering the size of the stone which was used, as
revealed by material on record, it cannot be said that a dangerous weapon was used. Therefore the
Supreme Court altered the conviction from Section 326 to Section 325 of I.P.C.
326. Voluntarily causing grievous hurt by dangerous weapons or means.—Whoever, except in the case
provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing
or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or
any heated substance or by means of any poison or any corrosive substance, or by means of any explosive
substance, or by means of any substance which is deleterious to the human body to inhale, to swallow, or to
receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
COMMENT
This section is related to Section 325 in the same way as Section 324 is related with Section
323. The victim had nine injuries caused with a knife. There was an incised wound cutting the
trachea at middle with air coming out, ordinarily causing death according to medical opinion under
the circumstances but the victim survived. It was held that the accused was guilty of causing
grievous hurt with a sharp cutting instrument and was punishable under the section.1
In a case three persons chased and wounded one Gunjarya. Out of the three persons one was
armed with a Dharya (weapon used for cutting) and remaining two were unarmed. The main
accused who was armed with Dharya chased and inflicted two or three blow with his weapon on the
head of the deceased while the remaining two pelted stones at him. It was held the main accused
was guilty of murder and the other two were held guilty of voluntarily causing wound. 2 Where the
medical evidence is in a confused state, conviction of the accused under Section 302 read with
Section 149 will be altered to one under Section 326 read with Section 149.3
In Atmaram Zingaraji v. State of Maharashtra,4 nine persons including the appellant were
charged and tried for murder of Prahlad under Section 302, read with Section 149 and for some
other offences as well. Eight out of nine accused were acquitted on concurrent finding of lower
courts that they were not involved in the said offence, while appellant alone was convicted. As per
evidence none of the other persons formed unlawful assembly. It was held that the evidence also
disclosed that death was not caused by injuries inflicted by accused/appellant alone; on the contrary
the evidence of eye-witnesses and the evidence of the Doctor who held the post-mortem
examination indicated that the deceased sustained injuries by other weapons also and his death was
the outcome of all the injuries. In view of the above facts conviction under Section 302/149 was set
aside and the appellant was convicted under Section 326 for causing grievous hurt.
In Bhagwan Singh v. State of Bihar,5 three accused persons were convicted by the trial court under
1. Sukra, A.I.R. 1958 Cut. 700.

2. Dajya Moshya Bhil and others v. State of Maharashtra, 1984 Cri. L.J. 1728 (S.C.)
3. Dhanna Chaudhary and others v. State of Bihar, 1985 Cri. L.J. 1495.
4. 1997 Cri. L.J. 4406 (S.C).
5. 1998 Cri. L.J. 93 (S.C).
section 302/34. Indian Penal Code. In appeal filed by them the High Court altered their conviction
from under section 302/34 to section 326/34, Indian Penal Code. Two of them were sentenced to 7
years' rigorous imprisonment while the third one Bishwanath Singh was awarded rigorous
imprisonment for 3 years. All the accused filed special leave petition. The appeal of Bishwanath
Singh was dismissed earlier. The appeal of Bhagwan Singh and Raj Nath Singh was heard in the
present appeal. Both the courts below have held that Raj Nath Singh gave a spear blow on the chest
of Brijlal and that the injuries were caused to Brijlal in furtherance of common intention of all the
three accused. The reason why High Court altered the conviction of Raj Nath Singh from that under
section 302/34 to section 326/34 is that the evidence of the doctor who conducted the post-mortem
examination 8 injuries on the person of the deceased were caused and the death of the deceased was
due to pus in the brain and therefore the death of Brijlal was not the direct result of the injuries
caused by the accused. It was held that the finding of the High Court is not correct. Nothing was
brought in the cross examination of the doctor to indicate that any external factor had contributed to
the formation of pus justifying the view that the death of Brijlal was not the direct result of the
injuries caused to him by the accused. That apart, Dr. Rajendra Singh (PW-12) has clearly stated in
his evidence that injury which was found on the abdomen of Brijlal was a grievous injury and on
that evidence alone conviction of the appellant under section 326/34 is justified. The appeal was
therefore dismissed.
In Daulat Trimbak ShewaJc v. State of Maharashtra} the appellant and the deceased and his
family owned neighbouring lands in the village. There was some dispute in regard to the boundary
466 F S. 310
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of lands between these two properties because of which the appellants had filed a civil suit and had
obtained injunction against the deceased and his family from sowing the disputed area of land. But
before injunction could be obtained the deceased and his family had already sown moong crop in
the disputed area in July, 1992. Thus the property was in possession of deceased. Possession of the
said property could not be obtained by virtue of injunction. The accused persons also tried to obtain
police assistance to take possession of their property but they failed. On 4-9-1992 at about 10 a.m.
when deceased and his brother were harvesting the crop, the accused persons came to the field
armed with deadly weapons and assaulted the deceased and his brothers, consequent to which
Keshav died and his brother Baburao (Pw-Il) suffered injuries. The Trial Court found the appellants
guilty of offence punishable under Section 302 read with Section 34 of I.P.C. while appellants 2 and
4 were also convicted for an offence punishable under Section 324 read with Section 34, I.P.C. The
appellant unsuccessfully challenged the conviction and sentence before the High Court,
consequently they filed appeal before the Supreme Court. The appellant pleaded exercise of right of
private defence of rightful possession of their property. But the Court did not agree with this
contention because the appellants themselves had admitted in the injunction application that the
deceased and his party had sown moong crop. Therefore the argument that they were defending
their own property is not tenable. It was held that the fact that the accused came to the field armed
with deadly weapon shows that they shared common intention, but common intention was not to
cause death of deceased. Further the fact that the accused had sought police help indicates that they
did not intend to take law into their own hands in first instance. Furthermore, though 1. 2004 Cri. L.J.
2825 (S.C).
many of accused earned axes, doctor who conducted post-mortem found only one incised wound
and the prosecution failed to identify person who caused fatal injury. Therefore, the accused were
held guilty of causing grievous hurt under Section 326 read with Section 34 and the appellants Nos.
2 and 4 were convicted under Section 324 read with Section 34 of I.P.C. as ordered by the Courts
below.
In Chowa Mandal v. State of Bihar,' the appellant and four others formed themselves into an
unlawful assembly armed with lathis and tangi on 23-6-1980 and went to the field of Pw-4 when
Pw-4 arid his cousin Shanker Mandal were ploughing the land and picked up a fight with them.
Being afraid of attack both of them ran away. Thereafter the accused returned back to the village, on
the way they met Jhalar Mandal, uncle of Pw-4. On being asked as to what the matter was the
appellants got enraged and hit Jhalar Mandal on his head with a lathi as a result of which he
received injury on his head and fell down. Thereafter all other accused also assaulted Jhalar Mandal
which was noticed by Pw-4, Ugan Mandal who raised alarm. On hearing alarm his son Dhanu
Mandal and his nephew Bhuneshwar Mandal also reached the place and they were also assaulted by
the accused. When other villagers came to the place of occurrence the accused persons ran away.
Then Ugan Mandal and other relatives took the injured to hospital where he died. The accused
persons were charged under section 302 read with section 34, 109, 148, 147, 323 of I.P.C. The Trial
Court convicted them and their conviction was upheld by the High Court. Hence this appeal before
the Supreme Court. It was held that the second incident which lead to the death of the deceased
none of the accused was motivated by any particular desire to attack Jhalar Mandal. The incident
occurred on the spur of moment without there being any intention of causing death or of causing
such injury as they knew was likely to cause death and was an act arising out of enmity they had
with the nephew of the deceased and aggravated by the unwarranted questioning by the deceased. It
is clear that the act of the accused cannot be construed as an act other than causing grievous hurt.
Therefore, the offence committed by the appellant/accused would fall under section 326 read with
section 34 and not under section 304 read with section 34 of I.P.C.
In State of Karnataka v. Narayan Babu,2 relations between the two deceased Nagappa and
Babu with the accused, who were closely related to each other were strained due to some family
property dispute. This dispute led to an assault by respondents 1 to 4 on Nagappa when he was
working in the fields and which resulted in his immediate death and also on deceased Babu who
was taking rest in his house, which also led to his death after about 10 days. The prosecution could
not lead any direct evidence regarding the manner in which Nagappa and Babu were killed. But the
trial court relying upon the statement of deceased Babu convicted the respondents. The High Court
on reappreciation of the evidence came to the conclusion that the statement of the deceased Babu
was not at all reliable as it was stated to have been given in presence of PW-3 and PW-12 who
positively stated before the Court that no such statement was given by Babu. The assault on
Nagappa had taken place in the field which was three furlong away from Babu's house and assault
on Babu took place while he was resting in his house. The High Court taking these factors into
consideration came to the conclusion that deceased Babu had not given the statement deposed by
the investigating officer. Dying declaration of one of the deceased as to the said assault was found
unreliable because declarant was resting while he was assaulted. The High Court therefore acquitted
1. 2004 Cri. L.J. 1405 (S.C).

2. 1999 Cri. L.J. 589. (S.C).
467 F S. 310
INDIAN PENAL CODE
the accused. It was held by the Supreme Court that under the circumstances no dying declaration
could be said to have been made and therefore the order of acquittal by the High Court was upheld.
In A.C. Gangadhar v. State of Karnataka? the accused and his companions had started the
assault on the deceased and his children because they protested against cutting of the tree. It was
held that the nature of injury indicates that blow must have been given by A-l with great force on
the forehead of PW-5 as it had caused a fracture. Evidence of injured was corroborated by medical
evidence. The accused was therefore liable to be convicted for offence under section 326, Indian
Penal Code. The accused was not untitled to benefit of private defence as the accused 'and his
companions themselves were aggressors. The sentence of one year imprisonment awarded by the
High Court was not excessive in view of the nature of injury caused by the appellant.
In Smt. Lakhiya Devi v. Girja Yadav? the accused had chased deceased right upto his house
and at that'time they were armed with weapons. They had entered the house of deceased and
forcibly entered into the room in which deceased had taken shelter and that they had assaulted him.
Thus they were all members of unlawful assembly and whatever they had done was done in
prosecution of their common object. However the trial court had held that the common object of'that
unlawful assembly was only to beat the deceased and not to cause his death. It was held that the
evidence of eye-witnesses was corroborated by the evidence of police constables and also the
circumstances on record. The evidence of eye-witnesses was not contradicted by the medical
evidence on record. Therefore the conviction of the accused recorded by the trial court under section
326, read with section 149, Indian Penal Code was restored.
327. Voluntarily causing hurt to extort property, or to constrain to an illegal
act.—Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from
any person interested in the sufferer, any property or valuable security, or of constraining the
sufferer or any person interested in such sufferer to do anything which is illegal or which may
facilitate the commission of an offence, shall be punished with imprisonment of either
COMMENT
Since the object is extorting property from the sufferer this is treated as an aggravated form
of the offence of hurt and as such is severely punished.
328. Causing hurt by means of poison, etc., with intent to commit an offence.—Whoever
administers to or causes to be taken by any person any poison or any stupefying, intoxicating
or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent
to commit or to facilitate the commission of an offence or knowing it to be likely that he will
thereby cause hurt, shall be punished with imprisonment of either description for a term which
COMMENT
For the application of this section and the Constitution of this offence administering of poison
or any other stupefying, intoxicating or unwholesome drug is enough even without causing any
hurt. It is an extension of Section 324 under which actual causing of hurt is essential, while under
this section mere administration of the unwholesome matter is sufficient to bring the offender to
book.
If some one procures or supplies a poisonous drug at the instigation of the other who wishes
1. A.I.R. 1998 S.C. 2381.
2. A.I.R. 1998 S.C. 2395.
to take it, it is not administering it. Where X administered the juice of some leaves to some persons
by way of or deal and some of them showed symptom of poison, 1 where a woman was robbed of
her jewellery while she was unconscious due to administering of Dhatura powder,2 it was held that
an offence under this section was complete. Again where the culprit mixed milk bush juice in his
Toddy knowing that if drunk by a person it would cause injury, for detecting an unknown thief who
was in the habit of stealing his Toddy, but the Toddy was drunk by some soldiers who purchased it
from an unknown vendor, it was held that he was guilty under this section.3
329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act.—Whoever
voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any persons interested in
the sufferer any property or valuable security, or of constraining the sufferer or any person interested in such
sufferer to do anything that is illegal or which may facilitate the commission of an offence, shall be punished
with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and
330. Voluntarily causing hurt to extort confession, or to compel restoration of property.—Whoever
voluntarily causes hurt for the purpose of extorting from the sufferer, or from any person interested in the
sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for
the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the
restoration of any property or valuable security or to satisfy any claim or demand, or to give information which
may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either
Illustrations
468 F S. 310
INDIAN PENAL CODE
(a) A, a police officer, tortures Z in order to induce Z to confess that he committed a crime. A is guilty of
an offence under this section.
(b) A, police officer, tortures B to induce him to point out where certain stolen property is deposited. A
is guilty of an offence under this section.
(c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears of revenue due from Z.
A is guilty of an offence under this section.
(d) A, a Zamindar, tortures a raiyat in order to compel him to pay him rent. A is guilty of an offence
under this section.
COMMENT
Section 327 is similar to this section. Section 327 deals with causing of hurt for extorting
property or valuable security but this section punishes inducing of a person by causing hurt to make
a statement or a confession having reference to an offence or misconduct; and whether that offence
or misconduct has been committed is wholly immaterial. 4 This section aims to control the atrocities
committed by the police during investigation. Where X stood by an acquiesced in an assault on a
prisoner committed by another police man for inducing a confession it was held that X abetted the
offence under this section.5
331. Voluntarily causing grievous hurt to extort confession, or to compel restoration of
property.—Whoever voluntarily causes grievous hurt for the purpose of extorting from the
sufferer or from any person interested in the sufferer any confession or any information which
may lead to the detection of an offence or misconduct, or for the purpose of constraining the
sufferer or any person interested in the sufferer to restore or to cause the restoration of any
property or valuable security, or to satisfy any claim or demand or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment
1. Dasi Pitchigadu, (1833) I Weir 335.

2. Nanjnudappa, 1 Weir, third edition p. 197.
3. Dhania Daji, (1860) 5 B.H.C. (Cr. C.) 59.
4. Nim Chand Mookerjee, (1873) 20 W.R. (Cr) 41. '
5. Latif Khan, (1895) 20 Bom. 394; Dnc Nath, A.I.R. 1940 Nag. 232.
of either description for a term which may extend to ten years, and shall also be liable to fine.
COMMENT
This section is like the previous one except that the hurt should be a grievous one.
332 Voluntarily causing hurt to deter public servant from his duty.—Whoever voluntarily causes hurt to
any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or
deter that person or any other public servant- from discharging his duty as such public servant, or in
consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such
public servant, shall be punished with imprisonment of either description for a term which may extend to three
COMMENT
This section is similar to section 353, the difference being that under this section hurt is
caused to the public servant while under section 353 there is an assault or criminal force for the
same purpose.
In "the discharge of his duty as such public servant" means what the law imposes upon him a
duty but things done under the colour of his office though in good faith will not be treated as duty. 1
To execute a warrant if window of the house of the accused is broken under the circumstances
where it was necessary to effect his arrest, this act of breaking open the window is covered but if it
was not necessary to break open the window and it was broken it will not be covered by the
concluding portion of this section.2
333. Voluntarily causing grievous hurt to deter public servant from his duty.—Whoever
voluntarily causes grievous hurt to any person being a public servant in the discharge of his
duty as such public servant, or with; intent to prevent or deter that person or any other public
servant, from discharging his duty as such public servant, or in consequence of anything done
or attempted to be done by that person in the lawful discharge of his duty as such public
servant, shall be punished with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.
COMMENT
Like the previous section this section covers the aggravated form of the offence and so hurt
caused must be grievous one.
334. Voluntarily causing hurt on provocation.—Whoever voluntarily causes hurt on grave
and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to
any person other than the person who gave the provocation, shall be punished with
imprisonment of either description for a term which may extend to one month, or with fine
which may extend to live hundred rupees, or with both.
COMMENT
This section serves as a proviso to sections 323 and 324.
335. Voluntarily causing grievous hurt on provocation.—Whoever voluntarily causes
grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be
likely to cause grievous hurt to any person other than the person who gave the provocation,
469 F S. 310
INDIAN PENAL CODE
,shall be punished with imprisonment of either description for a term which may extend to
four years, or with fine which may extend to two thousand rupees, or with both.
Explanation.—The last two sections are subject to the same provisos as Exception 1, Section 300.
COMMENT
This section is treated as proviso to sections 325 and 326.
1. Dalip, (1896) 18 All. 246.

2. Ibid, per Edge C.J.
336. Act endangering life or personal safety of others.—Whoever does any act so rashly
or negligently as to endanger human life or the personal safety of others, shall be punished
with imprisonment of either description for a term which may extend to three months, or with
fine which may extend to two hundred and fifty rupees, or with both.
COMMENT
Rash and negligent acts are punished and the Code has covered many fields by sections 279,
280, 284, 285, 286, 287, 288, 289, 304A, 337 and 338. The rash and negligent acts endangering
human life and personal safety of others are punished even though no harm follows.
Where X a priest of a temple deliberately left the temple at night and brick-batted it from
outside to create communal tension and riot between the Hindus and Muslims it was held that the
act was a deliberate one and not a rash or negligent act.'
337. Causing hurt by act endangering life or personal safety of others.—Whoever causes
hurt to any person by doing any act so rashly or negligently as to endanger human life, or
the personal safety of others, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine which may extend to five hundred rupees,
or with both.
COMMENT
When death results in consequence of a rash or negligent act, section 304-A takes care of that
but when hurt is the result this section comes in. This section applies where there is no criminal
intention, only rashness or negligence is in the act. Causing of hurt by negligent handling of a gun
was held to fall within this section rather than section 286.
X, a native physician performed an operation of the* eye with an ordinary scissor and used
ordinary thread and needle without properly disinfecting them, with the result that the patient's eye-
sight was permanently damaged. It was held that the physician acted rashly and negligently and was
held guilty under this section as there was no permanent privation of the sight of the eye.2
338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever
causes grievous hurt to any person by doing any act so rashly or negligently as to endanger
human life, or the personal safety of others, shall be punished with imprisonment for either
description for a term which may extend to two years, or with fine which may extend to one
COMMENT
This section covers 'grievous hurt' while the previous one covers hurt under similar
circumstances. Where a husband had sexual intercourse with his wife aged eleven years and she
died from the injuries thereof, it was held that he was guilty of causing grievous hurt by doing a
rash act under this section.3 Under clause (6) of section 375 the husband will be guilty of rape also.
Where X allowed his cart without any one to attend it along a road and a boy who was sleeping on
the road was run over by it, it was held that X had committed an offence under section 337 or
section 338.4
OF WRONGFUL RESTRAINT AND WRONGFUL CONFINEMENT
339. Wrongful restraint.—Whoever voluntarily obstructs any person so as to prevent that
person from proceeding in any direction in which that person has a right to proceed, is said
wrongfully to restrain that person.
1. Gaya Prasad, (1928) 51 All. 465.

2. Gulain Hyder Punjabi, (1915) 17 Bom. L.R. 384.
3. Hurree Malum Mydiee, (1890) 18 Cal. 49.
4. Malkaji, (1884) Unrep. Cr. C. 198.
Exception.—The obstruction of a private-»way over land or water which a person in good faith believes
himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
Illustration
A obstructs a path along which Z has a right to pass, A not believing in good faith that he has a right to
stop the path. Z is thereby prevented from passing. A wrongfully restrains Z.
COMMENT
Ingredient.—This section consists of the following ingredients :
1. Voluntary obstruction of a person.
470 F S. 310
INDIAN PENAL CODE
2. The obstruction must be such as to prevent that person from proceeding in any
direction in which he has a right to proceed. Obstruction.—Obstruction here means physical
obstruction, though it may
be caused by the use of physical force as well as by the use of menaces or threats. When such
obstruction is wrongful, it becomes wrongful restraint. For a wrongful restraint it is necessary that
one person must obstruct another voluntarily. Wrongful restraint means keeping a man out of a
place where he wishes to, and has a right to be. 1 The slightest unlawful obstruction to the liberty of
the subject to go when and where he likes to go, provided he does so in a lawful manner, cannot be
justified and is punishable under section 341.2
In Saminanda Pillai's* case the complainant was a wanderer, and the police thereupon took
him in custody as a "suspect" and passed him in the charge of policemen from one police station to
another until he reached a certain place where his identity being established, he was set at liberty. It
was held that in view of the fact that he was taken under a police escort, from one police station to
another, the freedom of his movement was at all events wilfully obstructed, and this amounted to
wrongful restraint.
Wrongful restraint is partial restraint of the personal liberty of a man. Every man's person is
sacred and free and law penalises those who abridge personal liberty of another. This offence is
complete if one's freedom of movement is suspend by an act of another done "voluntarily". That is
to say, act done with the intention or with the knowledge or belief in its likelihood.
Restraint necessarily implies abridgment of the liberty of a person against his will. Therefore,
if a person has been deprived of his will-power by sleep-otherwise, he cannot while in that
condition be subjected to any restraint. 4 Obstruction implies a desire to move, if there was no such
desire there could be no obstruction to movement. 5 A person can be deprived of his liberty of
locomotion as much by the exercise of force as by the express or implied threat of it. 6 Therefore
what is important is reasonable apprehension of force rather than its actual use.7
A person may obstruct another by causing it to appear to such other that it is impossible,
difficult or dangerous to proceed as well as by causing it actually to be impossible, difficult or
dangerous for that other to proceed.
The following are some of the illustrations where the accused made it to
1. Note M.P. 154.
2. Saminanda Pillai, (1882) I Weir, 339.
3. Ibid.
4. Fateh Mohammad v. Emperor, A.I.R. 1928 Lah. 445.
5. Pagla Baba v. State, A.I.R. 1957 Orissa 130. '6. Riley
v. Stone, 94 S.E. 434.
7. Om Prakash Tilak Chand v. State, A.I.R. 1959 Punj. 134.
appear, impossible, difficult or dangerous to proceed :—

(a) A illegally omits to take proper order with a furious buffalo which is in his
possession and thus voluntarily deters Z from passing along a road along which Z has a right
to pass.
(b) A threatens to set a savage dog at Z. if Z goes along a path along which Z has a
right to go.
(c) A threatens to set a dog at Z if Z goes along a path along which Z has a right to
go. The dog is not savage, but A makes Z to feel that it is savage and thereby prevents Z
from going along that path.
The following are some of the illustrations where the accused causes it actually to be
impossible or dangerous to proceed—
, (a) A builds a wall across a path along which Z has a right to pass, (b) A was living in a house.
He along with his wife and son goes out for marketing. On his coming back A finds his house
locked by B from outside. A is thus prevented from getting into his house where he has a right to
enter.1 What is required under this section is obstruction to free movement of a person, the method
used for such obstruction is immaterial. Use of physical force for causing such obstruction is not
necessary. Normally a verbal prohibition or remonstrance does not amount to obstruction,2 but in
certain circumstances it may be caused by threat or by mere words3 provided it has the effect of
bringing about the result of desired obstruction. Effect of such words upon the mind of the person
obstructed is more important than the method.4 Mere direction or demonstration will not constitute
wrongful restraint.5
All persons have equal right over public street maintained by the Municipal authorities and
therefore, one section of the community cannot interdict another section of the community from the
lawful exercise of their rights over such streets or from use of such streets. 6 People have a right to
take a corpse along a public road.7
Obstruction to co-sharer.—It was held in Rajinder Singh Katoch v. Chandigarh
Administration and others? that in case of denial of right to co-sharer to enjoy joint family property,
the right should be enforced through remedies available under civil law. Criminal proceedings
under Section 339 I.P.C. cannot be taken recourse to.
Person.—Personal liberty of a person must be obstructed. By a person is meant a human
being. The question whether a child of a tender age who cannot walk of his own and on his own
legs could also be the subject of restraint was raised in Mahendra Nath Chakaravarty v. Emperor.9
It was held that the section is not confined to only such person who can walk on his own legs or can
move by physical means within his own power. It was further said that if only those Who can move
by physical means within their own power are to be treated as a 'person who wishes to proceed' then
the position would become absurd in case of a paralytic or sick person who on account of his
sickness cannot move.
Another point that needs our attention here is whether obstruction to vehicle seated with
1. Arumuga Nadar, (1910) M.W.N. 727.
2. Karaturi Nagaimnan, (1882) 1 Weir, 339.
3. In re Shanmugham,-(\91\) Cri. LJ. 182.
4. Nripendra Nath Bam v. Kisen Bahadur, (1952) 1 Cal. 251.
5. Subba Row, (1908) 8 Cri. L.J. 212.
6. Sundareswara Sranthigal, (1927) 50 Mad. 673.
7. Subramania v. Ganadickam, (1963) II M.L.J. 80.
8. 2008 I Cri. L.J. 356 (S.C).
9. I.L.R. 62 Cal. 629.
passengers would amount to wrongful restraint or not. There is conflict of authority on this point.
The Bombay High Court in Emperor v. Ramlala,1 has said that there is not wrongful restraint if the
person sitting in a vehicle can get down and walk without obstruction. Where it is found as a fact
that the person said to have been obstructed is still able to proceed across the passage in question
though he is hindered from driving a bullock-cart through the passage, he cannot be said to have
been wrongfully restrained. In an earlier case the Calcutta High Court has also expressed a similar
view.2 But a contrary view has been taken by the Madras High Court in a number of cases discussed
below.
In In re Peria Pannuswami Goundan,3 where a person was riding a horse it was held that if
the person is prevented from proceeding it is no defence that he might have got off the horse and
walked in the same direction. In Gopal Reddi v. N. Lakshmi Reddi? it was held that "the voluntary
obstruction of a cart in which persons are travelling would amount to the wrongful restraint of the
person in the vehicle. The fact that the persons may get down and then be left at liberty to proceed
on their way unmolested is immaterial". This decision has also been followed in a later case In re
M. Abraham.5 In this case the driver of a bus purposely stopped the bus across the road in such a
manner as to prevent another bus which was coming from behind from proceeding further. The bus
driver was held guilty of an offence under this section.
Some other High Courts have also supported the view of Madras High Court. In Mangal
Singh v. Emperor,6 the complainant was proceeding on a road in a tumtum. The Patna High Court
held that the accused had committed wrongful restraint by obstructing the tumtum. So also in
Madhav Chandra v. Nalini,1 it was held by the Calcutta High Court that causing obstruction to a
vehicle in which passengers are seated constitutes wrongful restrains. Similar view has been taken
by Kerala High Court in Kottan v. State of Kerala.*
A review of the above cases would reveal that the latter view is correct. It is true that
wrongful restraint is an offence affecting the human body but the offence is complete as soon as the
person proceeding is obstructed and the fact that he is allowed to get down the vehicle and then
proceed is immaterial. The essence of the offence lies in preventing a person from proceeding in
any direction in which he has a right to proceed, and there is no reason to restrict the meaning of the
word "proceeding" to 'going by foot'.
Cases.—The following are some of the illustrations of wrongful restraint :—
(1) A has taken a house from B on rent. A has gone out after closing the house. B
puts his own lock on the premises in A's absence.9
(2) A was on the roof of a house. B removes the ladder and thereby detains A on
the roof.1"
(3) A and B were co-owners of a well. A prevented B from taking out water from
the well on the plea that B had not paid his share of
1. (1912) 15 Bom. L.R. 103.
2. Durga Pada Chatterjee v. Nilmani Ghose, A.I.R. 1935 Cal. 252.
3. A.I.R. 1927>Mad. 507.
4. A.I.R. 1947 Mad. 555.
5. A.I.R. 1950 Mad. 233.
6. A.I.R. 1941 Pat. 384.
7. A.I.R. 1964 Cal. 286.
8. (1960) Ker. L.T. 789.
9. halloo Prasad v. Kedar Nath, (1963) 2 Cri. L.J. 543.
10. Telapolu Subhadu, (1884) 1 Weir 340.
expenses incurred on the '.veil.1
All persons have a right to user of a public place or public way in a lawful manner anchno
one has right to prevent another from using it without incurring the risk of being penalised under
this section.2 If someone puts an obstruction, the other have the right to remove it, 3, though the
same right does not extend to a private way over which a person has merely an easement.4
The following are some cases where no wrongful restraint is constituted :
(1) A prevents the passage of animals by putting certain obstruction
in a road over which B had a right of passage for men and cattle leaving
. a portion of the way for men to pass.5
(2) A and B were two joint owners of a shop. A put his lock on the shop which was
let out by B. the other joint owner without A's consent. The tenant made a complaint against
A. It was held that A had committed no offence inasmuch as A had put his lock to a house of
which he was the joint owner and the complainant was his tenant.6
(3) A put up a tin projection over C's compound wall so as to hang over his paved
courtyard at A height of about 7 feet above the ground and the projection did not prevent any
moving below it. It was held that A did not commit wrongful restraint because the projection
did not prevent any one moving below it.7
(4) A caused some harijans (i.e. low classed people) to stand in a public street in the
vicinity of a temple with the object of preventing C from conducting a religious procession
from fear of pollution. A was not guilty under section 339.8
340. Wrongful confinement.—Whoever wrongfully restrains any person in such a manner as to prevent
that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person.
Illustrations
(a) A causes Z to go within a walled space, and locks Z in, Z is thus prevented from proceeding in any
direction beyond the circumscribing line of wall. A wrongfully confines Z.
(b) A places men with firearms at the outlets of a building and tells Z that they will fire at Z if Z
attempts to leave the building. A wrongfully confines Z.
COMMENT
Ingredients.—The following are essential ingredients of the section :
(1) Wrongful restraint of a person;
(1) Such restraint must prevent that person from proceeding beyond certain
circumscribing limits.
Prevent from proceeding.—Wrongful confinement is a kind of wrongful restraint in which a
person is kept within the limits out which he wishes to go and has a right to go. There must be a
total restraint of the personal liberty of a person and not merely a partial restraint to constitute
confinement. Total restraint of the personal liberty of a person leaving no choice for him to move in
any direction for howsoever short a period it may amounts to wrongful
1. Lahanu, (1925) 27 Bora. L.R. 1419.
2. Swidareswara v. Emperor, I.L.R. 30 Mad. 673.
3. Dharmalinga v. Emperor, I.L.R. 39 Mad. 57.
4. Zipru v. Emperor, I.L.R. 5 Bom. 487.
5. (1899) 8 Weir 340.
6. Bai Samrath, (1917) 20 Bom. L.R. 106.
7. Chhagan Vithal, (1927) 29 Bom. L.R. 494.
8. Venhata Subha Redely, (1910) M.W.N. 72.
474 INDIAN PENAL CODE I S. 340
confinement. If a person merely obstructs the passage of another in a particular direction, whether
by threat of personal violence or otherwise leaving him at liberty to stay where he is or to go in any
other direction if he pleases, he is restraining him, it may be wrongfully, but it does not amount to
confinement, legal or illegal.1 The restraining of a person in a particular place or compelling him to
go in a particular direction by force of^n exterior wills overpowering or suppressing in any way his
own voluntary action, is an imprisonment on the part of him who exercises that exterior will. 2 There
can be no wrongful confinement when a desire to proceed has never existed, nor can a confinement
be wrongful if the person confined chooses to remain where he is. 3 Detention of the person
wrongfully confined must be against his will.
For wrongful confinement proof of actual physical obstruction is not essential. It must be
proved that there was at least such an impression produced in the mind of the person confined, as to
lead him, reasonably to believe, that he was not free to depart and that he would be forthwith
restrained, if he attempted to do so. 4 The mere threat of some future harm in case of departure will
not be sufficient if the victim knows that it is open to him to go away and he refrains from doing so.
But if the circumstances are such as so justify and create the belief that he cannot depart without
being seized immediately, then it would amount to wrongful confinement. 5 In a case a head
constable detained some persons as suspects for several days. They were not fettered but they were
made to stay in a circumscribed limit. Their meals were either brought to them or they were sent
under escort to their houses for meals and were brought back. It was held that the head constable
was guilty under this section.6
Circumscribing limits.—Wrongful confinement means the notion of restraint within some
limits defined by a will or power exterior to our own, 7 "The restraining of a person in a particular
place or the compelling of him to go in a particular direction by force of an exterior will
overpowering or suppressing in any way his own voluntary action is an imprisonment on the part of
him who exercises that exterior will.s For an offence of wrongful confinement certain
circumscribing limits are necessary.
"A prison may have its boundary, large or narrow, visible and tangible, or, though
real, still in conception only; it may itself be movable or fixed; but a boundary it must have;
and that boundary the party imprisoned must be prevented from passing; he must be
prevented from leaving that place within the ambit of which the party imprisoning would
confine him except by prison-breach."9 "If in the course of a night, both ends of a street were
walled up, and there was no egress from the house but into the street, I should have no
difficulty in saying that the inhabitants were thereby imprisoned; but if only one end were
walled up and an armed force stationed outside to prevent any scaling of the wall or passage
that way, I should feel equally clear that there was no imprisonment. If there were, the street
would obviously be the prison; and yet, as obviously, none would be confined to it."1
1. Per Patterson, J., in Bird v. Jones, (1845) 7 Q.B. 742.

2. Paran Kusam v. Stuart, (1865) 2 M.H.C.R. 396.
3. Mohummad Din, (1894) P.R. No. 36.
4. Bhagwat, 1971 Cr. L..J. 1222.
5. Sliamlal Jairam v. Emperor, 4 Bom. L.R. 79.
6. Ibid.
7. Bird v. Jones, (1845) 7 Q.B. 742.
8. Paran Kumar v. Stuart, (1865) 2 M.H.C.R. 396.
9. Bird v. Jones, (1845) 7 Q.B. 742.
Malice.—Malice is not an essential requirement in the offence of wrongful confinement.2

Moral force.—Detention through the exercise of moral force, without the accompaniment of
physical force or actual conflict, is sufficient to constitute wrongful confinement.3
Period of confinement.—To constitute an offence under this section the period of
confinement is immaterial. But the period of confinement becomes material for the purpose of
determining the extent of punishment.4
Cases.—In Gopal Naidu,5 two police officers arrested without warrant a person who was
drunk and creating disturbance in a public street, and confined him in the police station though one
of them knew his name and address. It was not known to what extent that person was a danger to
others or their property. The offence for which he was arrested was non-cognizable one. It was held
that since the arrest was made by the police officers without warrant for a non-cognizable offence,
their action amounted to wrongful confinement. The action of the police officers could only be
justified on the ground of right of private defence or under section 81 I.P.C. and in this case there
was no such justification.
475 I S. 340
INDIAN PENAL CODE
In a case A was on his journey by car from Allahabad to Kanpur. B met him in the way and
requested for a lift upto Fatehpur, an intermediate town. A agreed to his request but on reaching
Fatehpur did not drop B there in spite of his repeated requests. B is carried over to Kanpur against
his wishes. Here A is guilty of wrongfully confining B.
'A' places men with fire-arms at the outlets of a house and warns 'B' that they will fire at 'B'
if 'B' attempts to leave the house. A is liable for the offence of wrongful confinement under section
340 of the Code because B is under fear confined within the limits of his house.
The following are some of the illustrations of wrongful confinement :
(1) B, a Jail Doctor confines an offender, who was already undergoing
imprisonment, in a cell within the jail for the purpose of administering enema against his
will.6
(2) B was living in a town where medical assistance was available. B kept in heavy
chains his brother C who was subject to intermittent insane fits and who was found to be
sane by the District Judge who ordered his production before the Court.7
(3) B brought a woman who was his kept mistress, from Kolhapur, and kept her
with C, a brothel-house-keeper in Bombay. On previous occasions also he had supplied
women to be used as prostitutes. The woman was made to live as a prostitute in the house,
the entrance to which was
1. Bird v. Jones, (1845) 7 Q.B. 742 p. 746, per Coleridge, J.

2. Dliamia v. F.L. Clifford, (1888) 13 Bom. 376.
3. The Acting Government Pleader v. Venkatachala Mudali, (1881) 1 Weir 341.
4. Suprosunno Ghosaul, (1866) 6 W.R. (Cr.) 88.
5. (1922) 46 Mad. 605.
6. Baistab Charan Shaha, (1902) 30 Cal. 95.
7. Shimbhu Narain, (1923) 45 All. 495.
guarded, and a watch was kept over her movements. On certain occasions only she was
allowed to go out under surveillance. B and C both were guilty under this section.1
(4) B, a Superintendent of Police wrote a letter to C who was accused of an offence
for which he could not be arrested without a warrant, directing him to present himself before
a Magistrate, and sent two constables to accompany him and prevent him from speaking to
any one.2
(5) Confining a person in a room.
(6) Compelling a person to move in a particular direction by force of exterior will
suppressing his own voluntary action.
Mistaken exercise of power by police officer.-—In a case where B, a police officer came
from Bombay to a village with warrant to arrest one M. After reasonable inquiries and on well
founded suspicion B arrested S, the complainant under the warrant believing in good faith that S
was M. S brought a suit for wrongful arrest. It was held that B had committed no offence because
he has committed a mistake of fact in good faith.3
Distinction between wrongful restraint and wrongful confinement.— (1) Wrongful
restraint is partial restraint of the personal liberty of a person; wrongful confinement is absolute or
total restraint or obstruction of personal liberty.
(2) Wrongful confinement implies wrongful restraint but vice-versa is not correct. Wrongful
confinement is a form of wrongful restraint.
(3) In wrongful confinement certain circumscribing limits are always necessary, but in
wrongful restraint no such limits or boundaries are required.
(4) In wrongful confinement movement in all directions is obstructed and a person is either
not allowed to move or is compelled to move against his wishes; but in wrongful restraint
movement in only one or some direction is obstructed leaving thereby a choice for the victim to
move in any other direction.
341. Punishment for wrongful restraint.—Whoever wrongfully restrains any person, shall be punished
with simple imprisonment for a term which may extend to one month, or with fine which may extend to five
hundred rupees, or with both.
1. Bandit Ebrahim, (1917) 20 Bom. L.R. 79.

2. P.N. Pantulu v. Captain R.A.C. Stuart, (1865) 2 M.H.C. 396.
3. Gopalia Kallaiya, (1923) 26 Bom. L.R. 138.
342. Punishment for wrongful confinement.—Whoever-wrongfully, confines any person, shall be

punished with imprisonment of either description for a term which may extend to one year, or with fine which
may extend to one thousand rupees, or with both.
343. Wrongful confinement for three or more days.— Whoever wrongfully confines any person for
three days, or more, shall be punished with imprisonment of either description for a term which may extend to
344. Wrongful confinement for ten or more days.—Whoever wrongfully confines any person for ten
days, or more, shall be punished with imprisonment of either description for a term which may extend to three
years and shall also be liable to fine.
345. Wrongful confinement of person for whose liberation writ has been issued.—Whoever keeps any
person in wrongful confinement, knowing that a writ for the liberation of the person has been duly issued, shall
be punished with imprisonment of either description for a term which may extend to two years in addition to any
term of imprisonment to which he may be liable under any other section of this Chapter.
346. Wrongful confinement in secret.—Whoever wrongfully confines any person in such manner as to
indicate an intention that the confinement of such person may not be known to any person interested in the
person so confined, or to any public servant, or that the place of such confinement may not be known to or
discovered by any such person or public servant as hereinbefore mentioned, shall be punished with
imprisonment of either description for a term which may extend to two years, in addition to any othev
punishment to which he may be liable for such wrongful confinement.
347. Wrongful confinement to extort property, or constrain to illegal act.—Whoever

wrongfully confines any person for the purpose of extorting from the person confined, or from
any person interested in the person confined any property or valuable security or of
constraining the person confined or any person interested in such person to do anything illegal
or to give any information which "may facilitate the commission of an offence, shall be punished
with imprisonment of either description for a term which may extend to three years, and shall
COMMENT
This section is similar to section 329 particularly in the aggravating form.
348. Wrongful confinement to extort confession, or compel restoration of
property.—Whoever wrongfully confines any person for the purpose of extorting from the person
confined or any person interested in the person confined any confession or any information
which may lead to detection of an offence or misconduct, or for the purpose of constraining
the person confined or any person interested in the person confined to restore or to cause the
restoration of any property or valuable security or to satisfy any claim or demand, or to give
information which may lead to the restoration of any property or valuable security, shall be
COMMENT
This section resembles with section 330. Under this section confession is extorted by
confinement while in section 330 it is by causing hurt.
OF CRIMINAL FORCE AND ASSAULT
349. Force.—A person is said to use force to another if he causes motion, change of
motion, or cessation of motion to that other, or if he causes to any substance such motion, :>r
change of motion, or cessation of motion as brings that substance into contact with any part
of that other's body, or with anything which that other is wearing or carrying, or with anything
so situated that such contact affects that other's sense of feeling :
Provided that the person causing the motion, or change of motion, or cessation of motion, causes
that motion, change of motion, cessation of motion lh one of the three ways hereinafter described :
First.—By his own bodily power.
Secondly.—By disposing any substance in such a manner that the motion or change or cessation of
motion takes place without any further act on his part, or on the part of any other person.
Thirdly.—By inducing any animal to move, to change its motion, or to cease to move.
COMMENT
The section contemplates as defined in clause (1) of the section that both the persons, one
using force and the other to whom force is directed, must be present to make the offence complete.'
350. Criminal Force.—Whoever intentionally uses force to any person, without that
person's consent, in order to the committing of any offence, or intending by the use of such
force to cause, or knowing it to be likely that by the use of such force he will cause injury,
fear or annoyance to the person to whom the force is used, is said to use criminal force to
that other.
Illustrations
(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus intentionally causes
the boat to drift down the stream. Here A intentionally causes motion to Z, and he does this by disposing
substances in such a manner that the motion is produced without any other action on any person's part. A
has therefore intentionally used force to Z ; and if he has done so without Z's consent, in order to
committing of any offence, or intending or knowing it to be likely that this use of force will cause injury,
fear or annoyance to Z, A has used criminal force to Z.
1. Bihari Lai, (1934) 15 Lah. ,786.

477 I S. 340
INDIAN PENAL CODE
Z is riding in a chariot. A lashes Z's horses, and thereby causes them to quicken their pace. Here A
has caused change of motion to Z by inducing the animals to change their motion. A has, therefore, used force to
Z and if A has done this without Z's consent, intending or knowing it to be likely that he may thereby injure,
frighten or annoy Z, A has used criminal force to Z.
(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the palanquin. Here A has
caused cessation of motion to Z, and he has done this by his own bodily power. A has therefore used force to Z
and as A has acted thus intentionally, without Z's consent, in order to the commission of an offence, A has used
criminal force to Z.
(d) A intentionally pushes against Z in the street. Here A has by his own bodily power moved his own
person so as to bring it into contact with Z. He has, therefore, intentionally used force to Z ; and if he has done
so without Z's consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, he
has used criminal force to Z.
. (e) A throws a stone, intending or knowing it to be likely that the stone will be thus brought into contact
with Z, or with Z's clothes, or with something carried by Z, or that it will strike water, and dash up the water
against Z's clothes or something carried by Z. Here, if the throwing of the stone produce the effect of causing
any substance to come in contact with Z, or Z's clothes, A has used force to Z, and if he did so without Z's
consent, intending thereby to injure, frighten or annoy Z,, he has used criminal force to Z.
(f) A intentionally pulls up a wornan's veil. Here A intentionally uses force to her, and if he does so
without her consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy her, he
has used criminal force to her.
(g) Z is bathing. A pours into the bath water which he knows to be boiling. Here A intentionally by his
own bodily power causes such motion in the boiling water as brings that water into contact with Z, or with other
water so situated that such contact must affect Z's sense of feeling. A has therefore intentionally used force to Z;
and if he has done this without Z's consent, intending or knowing it to be likely that he may thereby cause
injury, fear or annoyance to Z, A has used criminal force.
(h) A incites a dog to spring upon Z, without Z's consent. Here, if A intends to cause
injury, fear or annoyance to Z, he uses criminal force to Z.
COMMENT
The force as defined in the preceding section becomes criminal force when (i) it is used in
order to the committing of the offence and is used without consent and (ii) when it is intentionally
used to cause injury, fear or annoyance to some other person.
The term 'battery' of English law is included in 'criminal force'. The criminal force may be
very slight as not amounting to an offence as per section 95. Its definition is very wide so as to
include force of almost every description of which a person may become an ultimate object.
Ingredients—
(i) Intentional use of force to any person;
(ii) Such force should have been used without the consent of the
victim;
(iii) The force must have been used to commit an offence or with
the intention to cause injury, fear or annoyance to the person to whom it
is used.
Where A spits over B, A would be liable for using criminal force against B because spitting
must have caused annoyance to B. Similarly if A removes the veil of a lady, he would be guilty
under this section.1
'A' a house-owner tortured one of his tenants in order to compel him to pay his rent and
realised his dues. Here A will be liable for using criminal force under section 350 of the Code and
in case some hurt is also caused he may also be liable for causing simple or grievous hurt as the
case may be.
1. See Illustration F to section 350. .
351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely that
such gesture, or preparation will cause any person present to appreheid thai he who makes that gesture or
preparation is about to use criminal force to that person, is said to commit an assault.
Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to
his gesture or preparation such a meaning as may make those gestures or preparations amount to an assault.
Illustrations
(a) A shakes his fist at Z, intending or knowing it to be likely that^he may thereby cause Z to believe
that A is about to strike Z. A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may
thereby cause Z to believe that he is about to \ cause the dog to attack Z. A has committed an ; assault upon Z.
(c) A takes up a stick, saying to Z, "1 will give you a beating." Here, though the words used by A could
in no case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might
not amount to an assault, the gesture explained by the words may amount to an assault.
COMMENT
Causing of some actual hurt is not necessary for constituting assault. Mere threat may
constitute assault.' The essence of the offence lies in the effect which threat creates in the mind of
the victim. In view of the explanation mere words do not constitute assault. But use of words if
accompanied with such gestures or preparation that may cause another to apprehend that criminal
force is about to be used against him amounts to assault. Thus there must be some threatening
"physical act done by the accused by which he causes another to apprehend that criminal force is
about to be used against him. The person threatening must be in a position to carry his threat into
effect.
Ingredients.—The following are essential ingredients of this section :
1. Making of any gesture or preparation by a person in the presence of another.
2. Intention or knowledge of likelihood that such gesture or preparation will cause
the person present to apprehend that the person making it is about to use criminal force to
him.
Making any gesture or preparation.—The apprehension of the use of criminal force must
be from the person making the gesture or preparation, but if it arises from some other person it
would not be assault on the part of that person. Where A points a loaded pistol'at B it would be an
offence of assault.2 Where a person advances in a threatening attitude with an intention to strike
another so that his blow will almost immediately reach the other person, if he is not stopped, he
would be guilty of committing assault, though at the moment when he is stopped he may not be
near enough for his blow to- take effect. 3 In Muneshwar Bux Singh,4 the accused did nothing which
may come within the meaning of assault but made such a gesture that his followers advanced a little
forward towards the complainant in a threatening manner, he was hot held liable for an offence
under this section because criminal force cannot -be-said to be used by one person to another by
causing only some change in the position of others.
Intention or knowledge.—The gist of this offence is the intention or knowledge that the gesture or
1. Rupabati v. Shyaina, A.I.R. 1958 Cut. 710.
2. James, (1844) I C. & K. 530; Vijaidutta Jha, (1947) No. 9, 237.
3. Stephen v. Myers, (1830) 4 C. & P. 349.
4. (1938) 14 Luck 409.
preparations made by the accused would cause such effect upon the mind of another that he would
apprehend that criminal force was about to be used against him. Illustration (b) to this section is
important in this respect. This illustration exemplifies that although mere preparation to commit a
crime is not punishable yet preparation with intention specified in this section amounts to assault.
Explanation.—Explanation attached to this section makes it clearly that mere words do not
amount to assault but the words used by a person at the time may add such meaning to his gestures
or preparations that it may amount to an assault provided that it causes such an effect in the mind of
the person threatened that criminal force was about to be used against him. But a preparation taken
with words which would cause a person to apprehend that criminal force would be used to him, if
he continued in a particular course of conduct, may not constitute assault, if there is no evidence to
the effect that the accused was about to use criminal force to him then and there.1
Cases.—Mere utterance of threatening words does not amount to assault. 2 In a case a person
took a lathi and shouted that he will break head of a police officer if he insists upon taking his
thumb impression. He was not guilty of assault. 3 But where a person shouts that he would be
coming back and teach a lesson to the police officer and accordingly he comes back with a lathi,
moves close to the police officer raising a reasonable apprehension that he was about to use
criminal force, the accused would be guilty under this section.4
A medical examination of a woman without her consent constitutes the offence of assault. 5
Where a person throws brickbats into the house of another person, he would be guilty of assault.6
Difference between assault and criminal force.—Assault is something less than the use of
criminal force. In assault the force is cut short before the blow actually falls upon the victim. It
seems to consist in an attempt or offer by a person having present capacity with force to cause any
hurt or violence to the person of another. In criminal force the assault is consummated as force is
actually used. In assault the accused must be having enough means and ability to carry his threat
into effect and must also cause an apprehension in the mind of another that he was about to use
criminal force but actually there is no use of criminal force. Every use of criminal force includes
assault but in assault there is merely apprehension of use of force and no use of actual force.
352. Punishment for assault or criminal force otherwise than on grave provocation.—Whoever assaults
or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall
be punished with imprisonment of either description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.
Explanation.—Grave and sudden provocation will not mitigate the punishment for an offence under this
section, if the provocation is sought or voluntarily, provoked by the offender as an excuse for the offence, or
if the provocation is given by anything done in obedience to the law, or by a public servant, in the lawful
exercise of the powers of such public servant, or
1. Birbal Khalifa, (1902) 30 Cal. 97.

2. Annakamu Chettiar, A.I.R. 1959 Mad. 392.
3. Birbal Khalifa, (1902) I.L.R. 30 Cal. 97.
4. Ram Singh, A.I.R. W35 Pat. 214.
5. A.I.R. 1932 All. 524.
6. Mahadeo Pandey, A.I.R. 1932 All. 322.
479 I S. 340
INDIAN PENAL CODE
if the provocation is given by anything done in the lawful exercise of

the right of private defence.
Whether the provocation was grave and sudden enough to mitigate
the offence, is a question of fact.
COMMENT
This section provides punishment for assault or use of criminal force when there are no
aggravating circumstances.
353. Assault or criminal force to deter public servant from discharge of his duty.—Whoever assaults or
uses criminal force to any person being a public servant in the execution of his duty as such public servant, or
with intent to prevent or deter U>at person from discharging his duty as such public servant, or in consequence
of anything done or attempted to be done by such person in the lawful discharge of his duty as such public
servant, shall be punished with imprisonment of either description for a term which may extend to two years, or
COMMENT
This section covers the cases of public servants who are assaulted while performing their
official duty imposed by the law. The duty which is purported to be done, though in good faith but
under the colour of the office will not be covered. 1 An assault on a public servant who is not
discharging a duty imposed on him by law when he is assaulted falls under the purview of section
352. If hurt is caused under the circumstances mentioned in this section then section 332 or section
333 will apply.
Where a warrant for the arrest of a person was not signed in full but only initialled by the
issuing officer which was against the provision of section 251 of the Cr. P. Code, 1898 and was
resisted by the person against whom it was issued, it was held that the person was guilty under this
section and the preliminary defect in the warrant formed no defence. 2 But if the warrant is signed by
an unauthorised person3 or if the date fixed for the execution of the warrant is expired 4 or if it has no
seal,5 resistance is legal.
If a search in a house which is without proper written order and authority is resisted there is
no crime under this section. 6 But the Madras High Court in Pukot Kotu1 case expressed a contrary
view, provided the officer was acting in good faith and without malice.
Where a cart owner refused to part his cart to be used by a Forest Settlement Officer who
required it as per executive orders of the Government and the peon of the department was assaulted
by the cart owner to prevent the peon from seizing the cart it was held that the public servant was
not acting in the execution of his duty because of aforesaid rules had not the force of law and a
public servant acting under those rules was not acting in the execution of his duty,8
354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses
criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage
1. Raman Singh, (1900) 28 Cal. 411, at p. 414; Provincial Govt. Central Provinces and Berar v.
Nonelal, A.I.R. 1946 Nag. 395.
2. Janki Prasad, (1886) 8 All. 293.
3. Jagpat Koeri, (1917) 2 P.L.J. 487 : 18 Cri. L.J. 526.
4. Raghubir, (1941) 17 Luck. 311.
5. P.B. Gosain, 1962 Cri. L.J. 91.
6. Narain, (1875) 7 N.W.P. 209.
7. (1896) 19 Mad. 349.
8. Rakhmaji, (1885) 9 Bom. 558.
her modesty, shall be punished with imprisonment of either description for a term which may extend to
two years, or with Sie, or with both.
COMMENT *7
The essential ingredients of Section 354, I.P.C. are :'
(i) that the assault must be on a woman;
(ii) that the accused must have used criminal force on her;
(iii) that the criminal force must have been used on the woman intending
thereby to outrage her modesty.
Meaning of modesty.—Modesty in Section 354 I.P.C. is an attribute associated with female
human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of
pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as
would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be
outraged is sufficient to constitute the offence without any deliberate intention having such outrage
alone for its object.2
It was held in Ram Kripal S/o. Shyam Lai Charmakar v. State of Madhya Pradesh? that the
test to determine whether modesty of a woman has been outraged is whether action of offender is
such as could be perceived as one which is capable of shocking sense of decency of a woman.
It was held in Raju Pandurang Mahale v. State of Maharashtra? that what constitutes an
outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The
culpable intention of the accused is the crux of the matter. The reaction of the woman is very
relevant, but its absence is not always decisive. Modesty in section 354 is an attribute associated
with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The
act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such
as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be
outraged, is sufficient to constitute the offence without a deliberate intention of having such outrage
alone for its object. The ultimate test for ascertaining whether modesty has been outraged is
whether the action of the offender is such as could be perceived as one which is capable of shocking
the sense of decency of a woman.
In Aman Kumar v. State of Haryana? the evidence of prosecutrix and doctor was not specific
about penetration. The evidence of prosecutrix in Court about rape was at variance with her
evidence during investigation. Her father complained only about teasing. Therefore it was held that
conviction for rape is not proper. There was no material evidence to show that accused were
determined to have sexual intercourse in all events. In such a case the offence cannot be said to be
an attempt to commit rape. Accused, was therefore, held liable for offence under section 354 of
I.P.C. It was made clear that the essential ingredients of the offence punishable under section 354 of
I.P.C. are that the person assaulted must be a woman, and the accused must have used criminal
force on her intending thereby to outrage her modesty. An outrage to the modesty of a woman
1. Ram Kripal S/o. Shyam Lai Charmakar v. State of Madhya Pradesh, 2007 II Cri. L.J. 2302
(S.C).
2. Ram Kripal S/o. Shyam Lai Charmakar v. State of Madhya Pradesh, 2007 II Cri. L.J. 2302 (S.C).
3. 2007 II Cri. L.J. 2302 (S.C).
4. 2004 Cri. L.J. 1441 (S.C).
5. 2004 Cri. L.J. 1399 (S.C).
[ S. 354
481 OF OFFENCES AFFECTING THE HUMAN BODY
is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the
accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not
always decisive. Modesty in section 354 of I.P.C. is an attribute associated with female human
beings as a class. It is a virtue which is attached to a female owing to her sex. The act of pulling a
woman, removing her dress coupled with a request for sexual intercourse, is such as would be an
outrage to the modesty of a woman, and- the knowledge that modesty is likely to be outraged, is
sufficient to constitute the offence without any deliberate intention of having such outrage alone for
its object.
Rape is punished under section 376; but an assault short of rape is punished under this
section. Thus in State of Punjab v. Major Singh,1 a female child of 7]/2 months was held to be a
woman and as the accused had caused injury to be private parts he was held guilty under this
section.
In Baldeo Prasad Singh v. State? informant was cooking her meal inside her house along
with her companion B. The petitioner accused entered into the house, caught hold of her and
embraced her and squeezed her breasts. When they shouted neighbours arrived at the spot and the
accused went away. He failed to explain why he was present in the house at the relevant time. He
was held guilty of the offence under this section.
In Vidyadharan v. State of Kerala,3 while the victim of outrage Pw-1 was alone in her house
on 1-10-1992 at about 2 p.m. the accused entered her house, went to the kitchen where she was
cooking and attempted to catch hold of her hand, when she attempted to escape from him by
running to the front room and attempting to close the door, the accused followed her, opened the
door forcibly and caught hold of and grasped her, when she made a hue and cry her brother Pw-3
and other witnesses including Pw-2, a neighbour, came there and at that time the accused left the
victim and pushed down Pw-3, her brother from the verandah and went alongwith his parents who
came there hearing the hue and cry. First information was lodged by the victim the next day i.e., on
2-10-1992. Before the Trial Court it was pleaded that the accused was falsely implicated because
Pw-3, the brother of victim had only a few days before outraged the modesty of the appellant's sister
by trespassing into their house and apprehended legal action therefor. Delay in lodging F.I.R. was
also pleaded. Rejecting the plea of delay and false implication the Court held that though there was
some delay in lodging the F.I.R. it is but natural in a traditional bound society to avoid
embarrassment which is inevitable when reputation of a woman is concerned. Delay in every case
cannot be a ground to arouse suspicion. It can only be so when the delay is unexplained. In this case
the delay is properly explained. Further Pw-2 is an independent witness and a neighbour of both the
accused/appellant and the victim. There is no reason as to why be would falsely implicate the
appellant. A charge under Section 354 is one which is very easy to make and is very difficult to
rebut. It is not that art of enmity false implications are made. It would however be unusual in a
conservative society that a woman would be used as a pawn to wreck vengeance. Courts have a
duty to make deeper scrutiny of the evidence and decide acceptability or otherwise of the
accusation.
It was also held that in order to constitute the offence under section 354 mere knowledge that
1. A.I.R. 1967 S.C. 63.
2. 1984 Cri. L.J. (N.O.C.) 122 (Orissa).
3. 2004 Cri. L.J. 605 (S.C).
modesty of a women is likely to be outraged is sufficient without any deliberate intention of having
such outrage alone for its objects. There is no abstract conception of modesty that can apply to all
cases. A careful approach has to be adopted by the Court while dealing with a case alleging outrage
of modesty. The essential ingredients of the offence under Section 354 of I.P.C. are as under :
(i) That the person assaulted must be a woman;
(ii) That the accused must have used criminal force on her; and
S. 354 ] 482
(iii) That the criminal force must have been used on the woman
intending thereby to outrage her modesty.
Intention is not the sole criteria of the offence punishable under Section 354 of I.P.C. and it
can be committed by a person assaulting or using criminal force to any woman.
In Pandurang Sitaram Bhagwat v. State of Maharashtra,1 the appellant was a constable in
State Reserve Police. One Dilip Phadtare was his monthly tenant in one of the rooms of his house,
quarrels used to take place between other tenants on the one hand and Dilip Phadtare and his wife
Alka on the other hand, the appellant has asked Dilip to vacate the premises and he was also
searching some other premises. On 10-4-1993 at about 5.15 p.m., the appellant entered into the
tenanted premises when Alka (Pw-2) was watching television with her sons Shivaji and Amol. The
appellant enquired about her husband. Alka told him that he was not at home. He thereupon
allegedly entered into the room, closed the door and outraged her modesty by embracing her from
back side and touched her breasts. At that time Pw-3 Dilip came back and found Alka abusing the
appellant. On his questioning as to what had happened, he was assaulted by fists and kicks. The
other three accused thereafter also allegedly came there and assaulted both of them. Dilip allegedly
was also assaulted with stones and bricks. The appellant and the other three accused persons were
tried for commission of Offences under Sections 354, 323, 504 and 506 read with Section 34 of
Indian Penal Code on the basis of first information report lodged by Alka (Pw-2). During trial the
accused pleaded that he was falsely implicated because of enmity as he repeatedly asked Dilip to
vacate the premises. But after trial the appellant was convicted under Section 354 and all other
accused were acquitted. The appellant failed to get any relief from the High Court and hence this
appeal was filed before the Supreme Court.
It was held that ordinarily a lady would not put her character at stake may not be wrong but
cannot be applied universally. Each case has to be judged on its own merits. The law reports are
replete with decisions where charges under Sections 376 and 354 of I.P.C. have been found to have
been falsely advanced. Allowing the appeal the Supreme Court held that the statement of witnesses
should have been accepted keeping in view the admitted animosity between the parties. The
background of the case vis-a-vis continuous animosity between the complainant and her husband,
on the one hand as also and the appellant and his tenants could not have been lost sight of by
learned Trial Judge.
The exact place of occurrence and the manner in which the purported offence of outraging
the modesty was committed by the appellant, further more, materially differ. Whereas Pw-2
asserted that the appellant came inside the house and embraced her from the back when she was
1. 2005 Cri. L.J. 880 (S.C).

watching T.V. silting, Shivajai (Pw-4), son of Pw-2 stated that the incident took place when she was
proceeding towards kitchen. The said discrepancy even if ordinarily could not have been the basis
of passing a judgment of acquittal, but in this case, as noted hereinbefore, the conduct of both Pw-2
and P2-3 being suspect, it would not be safe to rely on a part of their statements as prosecution
witnesses.
355. Assault or crimiiuil force with intent to dishonour person otherwise than on grave
provocation.—Whoever assaults or uses criminal force to any person, intending thereby to
dishonour that person, otherwise than on grave and sudden provocation given by that person,
COMMENT
An accused person while under trial struck the sub-Inspector of police who was in the
witness-box giving evidence against the accused. This section was held to be applicable in his case.1
356. Assault or criminal force in attempt to commit theft of property carried by a person. —Whoever
assaults or uses criminal force to any person in attempting to commit theft of any property which that person is
then wearing or carrying, shall be punished with imprisonment of either description for a term which may
357. Assault or criminal force in attempt wrongfully to confine a person.—Whoever assaults or uses
criminal force to any person in attempting wrongfully to confine that person, shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine which may extend to
358. Assault or criminal force on grave provocation.— Whoever assaults or uses criminal force to any
person on grave and sudden provocation given by that person, shall be punished with simple imprisonment for a
term which may extend to one month, or with fine which may extend to two hundred rupees, or with both.
Explanation.—The last section is subject to the same explanation as section 352.
COMMENT
The provision of mild punishment where the assault is due to grave and sudden provocation
is the theme of this section.
[ S. 354
OF KIDNAPPING, ABDUCTION, SLAVERY AND
FORCED LABOUR
359. Kidnapping.—Kidnapping is of two kinds ; kidnapping from India and kidnapping
from lawful guardianship.
COMMENT
The literal meaning of kidnapping is 'child stealing'. Kidnapping is of two kinds : (i)
kidnapping from India, and (ii) kidnapping from lawful guardianship. In certain cases two forms of
kidnapping may overlap each other. For example a minor kidnapped from India may well at the
same time be kidnapped from his lawful guardianship also.
360. Kidnapping from India.—Whoever conveys any person beyond the limits of India
without the consent of that person, or of some person legally authorised to consent on behalf
of that person, is said to kidnap that person from India.
COMMENT
For an offence under this section the victim may be a male or a female,
1. Ahaf Mian. (1907) 27 A.W.N. 186.

484 [ S. 361
INDIAN PENAL CODE
whether major or a minor. This oi'icnce consists of the following ingredients :—
(1) Conveying of any person beyond the limits of India.
(2) Such conveying must be without the consent of that person.
If a person has attained the age of majority and has given his consent to his being conveyed,
no offence is committed. The age of consent for the purposes of the offence of kidnapping is 16
years for boys and 18 years for girls.
361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under sixteen years of
age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of
the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship.
Explanation.—The words "lawful guardian" in this section include any person lawfully entrusted with
the care or custody of such minor or other person.
Exception.—The section does not extend to the act of any person who in good faith believes himself to
be the father of an illegitimate child, or who in good faith believed himself to be entitled to the lawful custody of
such child, unless such act is committed for an immoral or unlawful purpose.
COMMENT
Object.—The provisions of this and subsequent sections under this head are intended more
for the protection of the minors and the persons of unsound mind themselves than for the right of
guardians of such persons. It may be that the mischief intended to be punished may partly consist,
in the violation or the infringement of the guardian's right to keep their wards under their care and
custody but more important object is to afford security and protection to the wards themselves
against seduction or abduction for improper purposes.'
Ingredients.—The following are essential ingredients of this section :
1. Taking or enticing away a minor or a person of unsound mind.
2. Such minor must be under the age of 16 years, if a male or under the age of 18
years, if a female.
3. The taking or enticing must be out of the keeping of the lawful guardian of such
minor or person of unsound mind.
4. The taking or enticing must also be without the consent of the guardian.
Takes or entices away a minor.—'Takes' means "causes to go, to escort, to get in
possession". In order to prove an offence under this section the prosecution must show that the
accused took some active part in the girl's leaving her lawful guardian's custody and taking shelter
with him.2 The taking need not be by force, actual or constructive, and it is immaterial whether the
girl consents or not.3 The taking of the child out of the keeping of the lawful guardianship is
necessary.
The word 'take' implies want of wish and absence of desire of the person taken. 4 It must be
proved that the accused took some active steps, by persuasion or otherwise to cause the girl to leave
1. State v. Harbans Singh Kishan Singh, A.I.R. 1954 Bom. 339.

2. Chhajju Ram v. Slate of Punjab, A.I.R. 1968 Punj. 439.
3. Manktelow, (1853) 6 Cox 143.
4. Jai Narain v. State of Haryana, (1969) 71 Punj. L.R. 688.
her home.1 If the suggestion to go away with the prisoner comes from the girl and he takes merely
the passive part of yielding to her suggestion, he is entitled to acquittal. 2 The accused must have
done something which led to the girl going out of the keeping of her guardian.3
Although merely allowing minor to accompany a person may not ordinarily amount to taking
by that person, in certain circumstances it may amount to taking. The factors which should be taken
into consideration in deciding whether there has been 'taking' are : the conduct of the parties,
particularly of the accused at the time and before their going away together, the maturity of the girl
and her intellectual capacity to think for herself and to make up her own mind, and the
circumstances under which and the object for which she felt it necessary or worthwhile to leave her
guardian's protection.4
In Varadarajan v. State of Madras,5 a minor girl, who had left the protection of her father
knowing and having capacity to know the full import of what she was doing voluntarily joined the
accused. The Supreme Court observed that there is distinction between taking and allowing a minor
to accompany a person. In the present case the accused was held not to have taken her away from
the keeping of her lawful guardian. Something more has to be shown, that is some kind of
inducement held out by the accused person or an active participation by him in the formation of the
intention of the minor to leave the house of the guardian is necessary.
Enticing.—'Enticing' is inducing a minor to go of her own accord to the kidnapper. It
involves an idea of inducement by exciting hope or desire in the other. One does not entice another
485 [ S. 361
INDIAN PENAL CODE
unless the latter attempted to do a thing which -the person kidnapped would not otherwise do.
'Enticing' means that while the person kidnapped might have left the keeping of the lawful guardian
willingly, still the state of mind that brought about that willingness must have been induced or
brought about in some way by the accused.6
In T.D. Vadgama v. State of Gujarat,1 the accused was charged for kidnapping a minor girl
Mohini, below 15 years of age from the lawful guardianship of her father under section 361, Indian
Penal Code. It was proved that the accused had at an earlier stage solicited or induced Mohini to
leave her father's protection by conveying or indicating and encouraging suggestion that he would
give her shelter. Holding the accused liable for kidnapping the Supreme Court held that the mere
circumstance that his act was not the immediate cause of her leaving her parental home'or
guardian's custody would constitute no valid defence and would not absolve him from the offence
of kidnapping. In this case the Supreme Court has elaborately commented on the meaning of the
word "enticing" and taking as follows :
"The word 'entice' seems to involve the idea of inducement or
allurement by giving rise to hope or desire on the other. This can take
many forms difficult to visualise and describe exhaustively. Some of them
may be quite subtle, depending for their success on the mental state of the person at the time
1. Chathu v. P. Govindcm Kutty, A.I.R. 1958 Ker. 121.
2. R. v. Jarvis, 20 Cox 249.
3. Arathan, 1966 Cr. LJ. 210.
4. Somgir Mangalpuri Karibharthi v. State of Gujarat, 1966 Guj. L.R. 378.
5. A.I.R. 1965 S.C. 942.
6. Sayyad'Abdul Sathar v. Emperor, A.I.R. 1928 Mad. 585.
7. AIR 1973 S.C. 2313.
when the inducement is intended to operate. This may work immediately or it may create
continuous and gradual but imperceptible impression culminating after sometime in
achieving its ultimate purpose of successful inducement."
It was further observed that : 'The two words, 'take' -and 'entice' as used in section 361 I.P.C.
are together so that each takes into some extent its colour and content from the other. The statutory
language suggests that if the minor leaves her parental house completely uninfluenced by any
promise, offer or inducement emanating from the guilty party then the latter cannot be considered to
have committed an offence as defined in section 361. But if the guilty party has laid the foundation
by inducement, allurement or threat and if this can be considered as having influenced the minor or,
weighed with her in leaving her guardian's custody or keeping and going to the guilty party then
prima facie it will be difficult for him to plead innocence on the ground that the minor had
voluntarily come to him.'"
A Hindu girl aged 17 years studying in B.A. was living under, the care and protection of her
parents. She was in criminal intimacy with the shopkeeper running a shop near her house. One day
the girl left her house and went to the shopkeeper and asked him to take her away permanently. The
shopkeeper took her away to several places. Later on he was arrested under section 363, Indian
Penal Code. Unlike T.D. Vadgama v. State of Gujarat? in this case there was no prior inducement
or encouragement from the shopkeeper so as to prompt the girl to leave her parental guardianship.
The girl aged 17 years was a student of B.A. and thus mature enough to think about her future, she
left her father's house of her own without any kind of inducement from the shopkeeper. It can be
said that since she was having criminal intimacy with the shopkeeper, therefore she might have
thought that the shopkeeper may agree to her suggestion. No active part was played by the
shopkeeper in causing the girl to leave her guardianship. When he.took her away she was no more
in the keeping of lawful guardianship. Therefore the shopkeeper is not liable for kidnapping of the
girl under section 363, Indian Penal Code.
In Kuldeep Kumar Mahato v. State of Bihar? it is alleged that Kiran Kumari the prosecutrix
was going to a Bazar on 11-2-93 when she was forcibly made to sit in a tempo by appellant
Kuldeep Kumar who met him in the way and was taken to another place. On the next night the
accused committed rape on the prosecutrix against her will. Both of them were residents of the
same village. On 13-2-93 brother of accused Kuldeep Kumar brought both of them to the village
and it was then that Kiran Kumari (PW-3) narrated the incident to his father. Thereupon a complaint
was lodged on 14-2-93. Prosecutrix was below 18 years of age on the date of incident. Evidence of
prosecutrix did not state that accused had kidnapped her with intention to marry with her against her
will or in order that she may be forced to illicit intercourse. Therefore it was held that ingredients
under section 366, were not proved and conviction of accused under section 366, Indian Penal Code
was not proper.
However it was further held that since the medical evidence showed thai prosecutrix was
below 18 years of age and the fact of her being taken in tempc by the appellant was not disputed
1. T.D. Vadgama v. Stale of Gujarat, A.I.R. 1973 S.C. 2313.

2. AIR 1973 S.C. 2313.
3. AIR 1998 S.C. 2694.
486 [ S. 361
INDIAN PENAL CODE
therefore, the offence of kidnapping from lawful guardianship was made out and he was rightly
convicted for offence of kidnapping under section 363, Indian Penal Code.
When taking is complete.—The offence under this section is complete when the minor is
actually taken from lawful guardianship and the offence is not a continuing one until the minor's
return to his guardian.1 Where A kidnaps a girl B and gives her to C who accepts her not knowing
that she had been kidnapped, A is guilty of kidnapping but C is not. 2 It may sometimes be difficult
to determine the precise moment at which the taking is complete but generally speaking, the
keeping of the guardian would be an end when the person of the minor had been transferred from
the custody of the guardian or some person on his behalf into the custody of the stranger.3 The act of
'taking' is not a continuous process, therefore, once the boy or girl is taken out of the keeping, the
act is completed one and subsequent taking of a minor who has already been kept out of his
guardianship no more constitutes taking in the proper sense of the term under this section.
Therefore, subsequent takers would not be kidnappers because at the time of taking by them the
minor had no more been in the lawful guardianship, then so long as he is kept away and is not
restored to his guardian it would amount to "detaining". 4 In Nemai Chattoraj? a minor girl G was
taken away from her husband's house to the house of K and was kept there for two days. Thereafter
she was taken by B to his house who kept her there for 20 days, after that B clandestinely removed
her to the house of C, the accused and from that the taking away out of the guardianship of the
husband was complete before C, the accused joined the principal offender in taking the girl to
Calcutta, and therefore C could not be convicted under section 363.
In Rekha Rai? B enticed a minor girl G to come out of the terrace to the road and then to the
motor car in which K was sitting, so that K may drive away with her. It was held that the offence of
kidnapping was complete only when he drove away with her.
Since the offence depends not so much on the time during which the girl was away as upon
the intention to remove her from the custody of her guardian, it is possible that there would be
taking when the custody of the girl is gone though the girl may still be in the house. For example,
where A induced a girl G to get married td him, which she did by going to Church, after which she
immediately returned to her parent's home and lived there as before. It was held that A was guilty as
the girl's marriage to him had put an end to the parent's possession, and that the time she was
actually away was wholly immaterial, as her husband had power to take her away whenever he
liked, her whole relationship to her father being altered by the marriage.7
Any person of unsound mind or a minor.—The unsoundness of mind must be because of natural reasons, it should not be temporary? insanity produced due to
alcoholic excess or such other reasons. Where a girl aged 20 years was made unconscious due to dhatura poisoning when she was taken away by A, it was held that A was
not guilty of kidnapping because the girl could not be said to be of unsound mind. The person kidnapped must be under the age of 16 years if a male and under the age of 18
years if a female. Knowledge of the accused that the person kidnapped was below the statutory age is immaterial. Where a girl under the statutory age of 18 years is
1. Jeewan v. Rex, A.I.R. 1949 All. 587.

2. Jeewan v. Rex, A.I.R. 1949 All. 587.
3. Jeetha Natho v. Emperor, 6 Bom. L.R. 785.
4. Nemai Cliattoraj, (1900) 27 Cal 1041.
5. Ibid.
6. (1927) 6 Pat. 471.
7. Baillie, 8 Cox C.C. 238.
kidnapped, it would be no defence that the accused did not know the girl to be under that age or that from her appearance he might have thought that she was of a greater
age.' Any one dealing with such a girl does so at his peril, and if she turns out to be under eighteen he must take the consequences, even though he bona fide believed and had
reasonable ground for believing that she was over eighteen.2 The defence that the girl was of easy virtues would not be sufficient to exonerate the accused.3
Out of the keeping of lawful guardian.—"Keeping" means within the protection or care of
the guardian. A minor is said to be in the keeping of a person where he depends upon him for his or
her maintenance, support or sustenance. It is not necessary that the minor should be in the physical
possession of the guardian. It would be sufficient if he is under continuous control which is for the
first time terminated by the act of the accused. If a minor boy goes out into the street or on the
playground by himself, or goes on a visit to the market or for a fanfare either with or without the
knowledge of the guardian, he is still said to be in the legal keeping of her parents. A minor is no
longer in the keeping or control of the lawful guardian if she was driven away from her parental
roof or she voluntarily abandoned the control of the guardian on account of ill-treatment. In a case
X meets a girl aged 15 years in a park. She tells him that her age is 19 years and that she is ill-
treated in her house by her father and that she would be happy to be taken away from home.
Thereafter X takes the girl to his house and allows her to remain there. In the case X will not be
liable for kidnapping because there is no inducement or active solicitation on the part of the accused
which can be said to be the cause of the girl coming out of her father's house, instead she has
voluntarily abandoned the control of the guardian on account of ill-treatment.
487 [ S. 361
INDIAN PENAL CODE
There must be a taking or enticing of a child out of the keeping of the lawful guardian. If a
minor abandons his guardian with no intention of returning back she cannot be deemed to continue
in the keeping of the guardian. 4 If some body takes or entices her it cannot be said that she was
taken or enticed away out of the keeping of her lawful guardian. 5 In the case a girl had run away
from home in consequence of ill-treatment and meeting A on the road, had agreed to take service as
a coolie and went with him. In this case there was no kidnapping.6
There can be no kidnapping of a minor who has no guardian. Therefore an orphan cannot be
kidnapped because he has no guardian. -Where B, an orphan minor boy is enticed away by A to
Delhi to be given in Adoption to C his intention is not one of those which makes his act an offence.
Lawful guardian.—There is difference between 'lawful guardian' and 'legal guardian'. A
guardian may be lawful without being legal. 7 Lawful guardian is one to whom the care and custody
1. Robins, (1844) 1 C. & K. 456.
2. R. v. Prince, (1875) L.R. 2 C.C.R. 154.
3. 1976 Cr. L.J. 363.
4. Israr Husain, (1941) 17 Luck 128.
5. Ewaz Ali, (1915) 37 All. 624.
6. Gunder Singh, (1865) 4 W.R. (Cr.) 6.
7. Nathmingh, A.I.R. 1942 Nag. 34.
of a child is 'lawfully entrusted'. 'Lawfully entrusted' means that the care and custody of a child has
arisen in some lawful manner.' The word 'lawful' does not mean that the person who entrusts a
minor to the care or custody of another must stand in the position of a person having a legal duty or
obligation to the minor.
Under this section guardian must be lawful, he need not be a legal guardian. Therefore, when
father of a girl sends her to school with his servant or a friend, the servant or such friend is the
lawful guardian without prejudice to the right of possession of the father of the child. The child is
still said to be in the father's possession or keeping even,though the actual physical possession is
temporarily with the servant or the friend.2 Here father is the legal guardian and servant or the friend
would be only lawful guardians.
M, a girl of about 17 years of age, was in love with the accused, a widower who wanted to
marry her. M's mother was agreeable to the accused's proposal but her father did not like his
daughter getting married to a widower. One day when the father had gone out on a tour for four
days the accused took M away with her mother's consent so that they could get married at another
place. In this case the accused would be liable for the offence of kidnapping from lawful
guardianship. Although the girl's father was away on a tour, she would be said to be still under
lawful guardianship of her father.
In Bidyadhar Naik v. State of Orissa? a minor girl Surekha was being taken by her
prospective husband from her father's house to prospective father-in-laws house for solemnisation
of marriage there. As per prevailing custom in the caste society of the victim girl the marriage was
not performed in the house of'the bride. On the other hand, the groom came to the house of the
bride, brought her along with him to his own house and subsequently the marriage was performed.
In this case while the girl was being taken by her husband, she was physically lifted and carried
away by the appellants who committed rape. It was held that the natural guardian of the girl
entrusted her guardianship and custody to her prospective husband and therefore during transit
prospective husband was lawful guardian. Even if this aspect is not accepted yet the girl being
minor still remained under lawful guardianship of her father. She was forcibly taken away which
means it was against the consent of lawful guardian. Therefore the appellants are liable under
section" 361 of the Penal Code.
Entrustment.—"Entrustment" means the giving, handing over, or confiding of something by
one person to another. It involves the idea of active power and motive by the person reposing the
confidence towards the person in whom the confidence is resposed. 4 It may be written or oral,
express or implied. The entrustment may be by a legal guardian who by so doing reposes his
confidence in another (who is called lawful guardian) about the care and custody of the minor.
Entrustment may also, in the absence of express or written authority, be presumed from the conduct
of a person alleged to be lawful guardian or of the person taking upon himself the duties of care and
custody of the minor.5
Without the consent of such guardian.—Under this section the consent of
1. Nathusingh, A.I.R. 1942 Nag. 34.

2. Jagannadhan Rao v. Kaimrajui (1900) 24 Mad. 284.
3. 1990 Cri. L.J. 1579 (Orissa).
4. Nathusingh, A.I.R. 1942 Nag. 34.
5. Ibid.
488 [ S. 361
INDIAN PENAL CODE
the minor or a person of unsound mind is immaterial because they are in law incapable of assigning
a valid consent.1 Therefore, taking or enticing of the minor must be without the consent of the
guardian. Consent given by the guardian after the commission of the offence would not excuse the
offence.2 Consent must be legally obtained consent. Where a man by false and fraudulent
representations induces the parents of a girl to allow him to take her away he would be guilty of an
offence under this section because it is no consent.3
A believing in good faith the age of a girl to be over 18 years took her away from the
guardianship of her parents without their consent. It was later discovered that the girl was below 18
years. Here A would be liable under section 363, Indian Penal Code for the offence of kidnapping
from lawful guardianship because the girl was actually found to be below 18 years of age. His
mistaken belief about the age of the girl would be no defence because knowledge of the offender
about the age of the girl that she is minor is not a neccessary ingredient of kidnapping under section
Marriage of a girl without consent of her guardian.—In Pran Krishna Surma,4 a Hindu
woman left her husband's house and took with her infant daughter. She went to the house of B, and
on the same day and her daughter was married to C, the brother of B without consent of her father.
B was held guilty of committing an offence under sections 109 and 363, of abetting the offence of
kidnapping. In a case a girl G was betrothed to one A by her father. But later on her father changed
his mind and broke off the marriage. The girl was taken away by A without the consent of her
father. A was held guilty of kidnapping under this section.5 In another case a girl who was under the
temporary guardianship of a person was taken away with his consent by A and was married to a boy
with the consent of her father. A was held guilty of kidnapping/'
Hindu Law.—Among Hindus father is the guardian of his children and is
ordinarily entitled to their custody. This rule applies in case of legitimate children.
The mother of an illegitimate child is its proper and natural guardian during the
period of nurture. In case of legitimate children mother does not have right to
the custody adversely to the father of the child. The mother's custody of the
child is considered to be the custody of the father. Therefore, even though mother
removes a girl from one place to another, she does so fully consistent with the
right of the father as guardian and this does not amount to the taking out of the
father's keeping. But if a mother removes a girl from her father's house for the
express purpose of marrying her without his consent she would be guilty under
this section.7._____
If the mother of an illegitimate child while on her death bed entrusts the care of such child to
a person who accepts the trust and maintains the child, such a person would be lawful guardian of
that child because the care and custody of the child was lawfully entrusted to him.8
In a case where a minor girl was in the custody of her mother, under orders of the court when
1. Bhungee Ahur, (1865) 2 W.R. (Cr.) 5.
2. Ganesh, (1909) 31 All. 448.
3. Hopkins, (1842) Car. & Mar. 54.
4. (1882) 8 Cal. 969.
5. Gooroodoss Rajbunsee, (1965) 4 W.R. (Cr.) 7.
6. Jagannadha Rao v. Kamaraju, (1900) 24 Mad. 284.
7. Prankrishna Surma, (1882) 8 Cal. 969.
8. Pemande, (1882) 8 Cal. 971.
the mother had obtained divorce from her husband and the father forcibly removed the daughter
from a school, father was held guilty of kidnapping under this section.1
A minor married girl, until she attains puberty, continues to be under the guardianship of her
father if she is legitimate and of her mother if she is illegitimate. In case of a minor married girl, her
husband is her lawful guardian provided that the girl has attained puberty and husband himself is
also not a minor. If the father of a minor married girl takes away the girl from her husband without
his consent, father would be guilty of Jkidnapping from lawful guardianship even though the father
may have had no criminal intention in doine so.2
A father may be guilty of kidnapping his daughter (i) from her husband if she has attained
puberty and (ii) from her mother if she' is illegitimate. So also mother may be guilty of kidnapping
her child from the father.
Mohammedan Law.—Under Mohammedan law if a Sunni father takes away a son under
seven years or a daughter before she has attained puberty or an illegitimate child from the custody
of the mother he would be guilty under this section because mother is the lawful guardian. 3 Under
Sunni law mother is the guardian of her daughter until she attains puberty which is presumed when
the daughter completes her fifteenth year. In case of a Shia father, if father takes away a son or
489 [ S. 361
INDIAN PENAL CODE
daughter under seven years or an illegitimate child from the custody of the mother he would be
guilty of kidnapping.4 Even a divorced wife is entitled to the custody of her children.5
After mother comes the father so far as guardianship is concerned and then come other
relations standing within the prohibited degrees. When a married girl attains puberty her husband is
the guardian.
Cases.—-In a case a girl on her own accord went to A's house, persuaded him to execute a
marriage agreement, returned to the father's house and told him about the agreement and the father
locked her in a room. After three days the girl forced open the door and went to the accused A, it
was held that A was not guilty of kidnapping under this section. 6 If a minor is taken with the
consent of the guardian and subsequently married improperly without the consent of the , guardian
to any person, such improper marriage would by itself constitute the offence of kidnapping, 7 A girl
student of Bombay, aged 17 years and 10 months was participant in a social service camp of sixty
days duration at Lucknow. On the way to Lucknow X developed acquaintance with A, a
businessman who was travelling in the same compartment. A had several meetings with X in the
course of the camp and also presented gifts to X. On the completion of the camp A took X to
Kanpur, his home town and got married with her. A would not be liable for kidnapping because by
the time of completion of the camp X had become 18 years old and has thus ceased to be a minor.
362. Abduction.—Whoever by force compels, or by any deceitful means induces, any
1. Rcmiji Vithcd, (1957) 60 Bom. L.R. 329.
2. Dhuronihdur Chose, (1889) 17 Cal. 298.
3. Nur Kadir v. Zuleikha Bibi, (1885) 11 Cal. 649.
4. Ibid.
5. Ayshabai, (1904) 6 Bom. L.R. 536.
x
6. 1971 Cri. L.J. 6.
7. Jcdadu, (1911) 36 Mad. 453. ,
490 INDIAN PFNAI CODE f S. 362
person to go from any place, is said to abduct that person.

COMMENT
The section defines the word 'abduction'. Abduction under this section is not a substantive
offence by an auxiliary act which is not punishable by itself but made criminal only when it is done
with one or other of the intentions specified in the following sections.1
Ingredients.—The following are its essentials :—
1. Forcible compulsion or inducement by deceitful means.
2. The object of such compulsion or inducement must be the going of a person from
any place.
Forcible compulsion or inducement by deceitful means.—In case of abduction a person is
compelled either by use of force or is induced by practising deceit to move from one place to
another.2 Actual use of force is necessary and merely show or threat of force is not sufficient. 3 Either
force or fraud must have been practised upon the person abducted.4
In inducement there is some active suggestion on the part of the abductor which is the case of
the person abducted to move to some place where he would not have gone but for this suggestion.
The change of mind of the victim must have been caused by an external pressure of some kind.5
Going of a person from any place.—When force, fraud or deceitful means are used so as to
compel or induce a man to move from one xplace to another the offence under this section is
constituted. So where a womanxis carried away by force against her own will, it would be abduction
even though she is carried -with the object of restoring her to her husband.6
Continuing offence.—Abduction is a continuing offence and a person is liable not only when
a person is first moved from one place to another but all those who are involved in subsequently
moving that person to other places are also liable.7
Abetment.—If a married woman consents to her own abduction and the consent is a free
consent, the offence of abduction is not constituted and the woman would not be liable to abet her
own abduction.8
Cases.—In Mahbub? an orphan girl aged about 17 years was brought up by M as his own daughter. M's neighbour 'A' induced her to leave home on the assurance
that either he himself would marry her or get her married. He did neither, instead debauched her himself and handed her over to one of his friends who also proceeded to have
connection with her. A was held guilty of this offence. It was held that the expression 'deceitful means' is wide enough to include the inducing of a girl to leave her guardian's
house by means of a representation that the person to whom she went would either marry her himself or arrange for her marriage.
Where a girl aged 16 years out of her free will goes out with the accused for sexual intercourse
and there was no evidence of use of force or inducement by deceitful means, the accused would not
be guilty under this section.1
In Attu? the accused came on the roof of a house where W, a woman was sleeping. They woke
her up and asked her to accompany. She refused to accompany, therefore, they lifted her up in order
1. Nanhita Dhirnar, (1930) 53 All. 140.
2. Komul Doss. (1865) 2 W.R. (Cr.) 7; Ram Bharosey, (1956) A.L.J. 849; Arusami, 1959 Cri.
L.J. 852.
3. Nuru, (1950) 51 Cri. L.J. 29.
4. Barret, (1881) 15 Cox. 658.
5. Allahrakhio, A.I.R. 1934 Sind 164.
6. Fatnaya, (1942) 23 Lah. 470.
7. Ganga Dei, A.I.R. 1914 All. 17.
8. Natha Singh, (1883) P.R. No. 11 of 1883.
9. (1907) 4 A.L.J.R. 482; (1905) 6 Cri. L.J. 9.
to carry her away. She then raised an alarm and the accused dropped her on the roof and ran away.
The offence of abduction was not committed in this case because the woman was not compelled to
go from the place where she was put was merely lifted up and dropped down again. Here the accused
were though not liable for abduction but were guilty of attempting to abduct under sections 366 and
511 of the Code. Where a girl was unwilling to follow the accused and accused compelled her by
force to follow, he would be guilty of abduction.3
In Vinod Chaturvedi v. State of Madhya Pradesh? the appellant was alleged to have abducted
the deceased Brindaban. During the course of investigation it was found that Brindaban on being
persuaded by the accused persons and Vinod in particular, went inside his house, came out properly
dressed to accompany the group to village Rampura. It was held that Brindaban was not abducted by
the accused persons.
A, without the knowledge of the guardian takes away B a girl of 16 years old, from her house
on her request. He restored her after one week. A will be liable for kidnapping under section 361 of
the Penal Code because the offence is complete the moment a minor is deprived of lawful
guardianship.
'A' is a minor wife of 'B'. 'C takes her forcibly and without the consent of 'B' and keeps her in
his house for two months. There she develops intimacy with 'X' a neighbour of 'C and runs away
491 INDIAN PFNAI CODE f S. 362
with 'X' to Agra, where both of them are arrested on the report of 'B'. In this case C is liable for the
offence of abduction under section 362 of the Code. 'X' may be liable only when A is taken for some
illegal purpose. In my opinion the law is deficient on this point and provision should be made to
make even taking of such type as an offence. 'X' is not liable for kidnapping because C was not
lawful guardian of A at that time.
Distinction between kidnapping and abduction.—The offences of kidnapping and
abduction differ from each other in following ways :—
(1) The offence of kidnapping is committed only in respect of a minor under 16
years of age if a male and under 18 years if a female or a person of unsound mind. Abduction
may be committed in respect of a person of any age.
(2) In 'kidnapping' the person kidnapped is removed out of lawful guardianship.
Therefore, a child without guardian cannot be kidnapped. There can be no kidnapping of an
orphan. Abduction refers to the person kidnapped. The person abducted need not be in the
keeping of any body.
(3) Simple taking or enticing away of a minor or a person of unsound mind
constitutes kidnapping. In abduction means used are material and therefore, force, compulsion
or deceitful means must have been used.
1. A.I.R. 1952 Raj. 123.

2. A.I.R. 1925 L. 512.
3. A.I.R. 1925 Oudh. 328.
4. Ibid.
Kidnapping may even be innocent.

(4) In kidnapping consent of the person taken or enticed is immaterial because they
are not competent to signify a valid consent. In abduction, consent of a person moved, if
freely and voluntarily given, condones the offence.
(5) In kidnapping the intent of the kidnapper is a wholly irrelevant consideration but
in abduction intent of'the offender is an important factor to constitute the offence because
abduction by itself is not an offence unless committed with certain intent as specified in
section 364 and onwards.
(6) Kidnapping is not a continuing offence, because it is complete
- the moment a person is deprived of his lawful guardianship; whereas
abduction is a continuing offence, and the offence of abduction continues so long as a person
is moved from one place to another.
(7) Kidnapping is a substantive offence, while abduction is only an
auxiliary act, not punishable by itself, but made criminal only when it is
done with one or the other of the intents specified in section 364 and the
following ones.
363. Punishment for kidnapping.—Whoever kidnaps any person from India or from lawful
guardianship, shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
COMMENT
In Shashidhar Purandhar Hegde v. State of Karnataka? the victim Niranjan (Pw-3) son of
Sudhakar Kamat (Pw-1) was taken away from school by accused (A-l) at about 4.00 p.m. on the
pretext that Dr. Prabhu, brother-in-law of victim has asked him to take Niranjan. The accused also
told the boy that he has already taken permission of the class teacher to take him. When the boy
came out he was taken on a motor cycle. On the way A-2 joined him and all the three went by
motorbike. The boy was taken to forest and was not allowed even to keep his bag at his home which
was in the way. On reaching in the forest A-l went for sometime on the pretext to enquire about
victim's brother-in-law. On coming back A-l talked with A-2 privately and thereafter A-2 also went
away to search his lost golden ring. However, the boy became suspicious and asked A-l to leave him
to his house and when the boy insisted on it, A-l threatened him first by saying that there was a ghost
and later by showing a knife. When A-l dragged fJrrt kst?y wri hwi biro, b>j cowirijjjg, bis. mouth
with hands, the victim made some sound. Then Pw-5 victim's brother's friend flashed a torch light
and saw that the boy was being held by A-l. They apprehended A-l and produced him before police.
Pw-1 the victims father was informed on phone by A-l that he had kidnapped his child and he would
be killed if he failed to pay Rs. three lakhs. The fact that A-l had telephoned Pw-1 at about 4.30 p.m.
was spoken to by Rajender (Pw-7) a rice mill owner and P.V. Hegde (Pw-11) manager of shop.
According to Pw-11 at about 6 p.m. A-l had telephoned to someone. It is true that Pws 7 and 11
could not know what he had spoken and to whom he had telephoned. The accused persons were tried
for offences under Sections 363, 368, 506 and 507 read with Section 34 of I.P.C. and were acquitted.
The High Court in appeal convicted the accused person and hence the present appeal to the Supreme
Court.
It was observed that the evidence of victim gives clear picture as to how accused persons
kidnapped and confined him in forest. Merely because witnesses first made
1. 2004 Cri. L.J. 4677 (S.C).
attempt to find out place where accused persons had hidden victim, is no ground
to discard their evidence because some of them are involved in criminal case.
Identification of accused by their description given by classmates of victim clearly
corroborates evidence of victim. Hence, the appeal was dismissed and it was held
that acquittal of accused on account of minor discrepancies is not proper. These
minor discrepancies cannot be termed as contradiction because this word has vide
connotation.
In A.N. Venkatesh v. State of Karnataka,1 a complaint was lodged regarding
missing of a deceased boy and thereafter about receipt of telephonic call
demanding ransom. Accused persons were arrested from a nearby place where
ransom demand was to be met and on their pointing a particular place dead body
was exhumed. No plausible explanation was given by accused persons for their
presence at spot. Further conduct of accused persons in running away on seeing
police party is unnatural. Evidence of witness who has seen boy playing with
accused persons before his death cannot be discarded on account of estimated time
of death given by doctor, more so when dead body was decomposed and exhumed
after two days. Therefore it was held that the circumstances cumulatively taken
together lead to only irresistible conclusion that accused persons alone are
perpetrators of crime. Therefore conviction of accused persons was held to be
proper, i 363-A Kidnapping or maiming a minor for purposes of begging.—(1) Whoever kidnaps any
minor, or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such
minor may be employed or used for the purposes of begging shall be punishable with imprisonment of
(2) Whoever maims any minor in order that such minor may be employed or used for the purposes
of begging, shall be punishable with imprisonment for life, and also be liable to fine.
(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the
purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise
obtained the custody of that minor in order that the minor might be employed or used for the purposes of
begging.
(4) In this section—
(a) "begging" means—
(i) soliciting or receiving aims in a public place, whether under the pretence of
singing, dancing, fortune-telling, performing tricks or selling articles or otherwise ;
(ii) entering on any private premises for the purpose of soliciting or receiving
alms ;
(iii) exposing or exhibiting with the object of obtaining or extorting alms, any
sore, wound, injury, deformity or disease, whether of himself or of any other person or
of an animal ;
(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms ;
(b) "minor" means—
(i) in the case of a male, a person under sixteen years of age ; and
(ii) in the case of a female, a person under eighteen years of age.
COMMENT
This section was added by an amendment of the Code in the year 1959. Its main object is "to
put down effectively the evil of kidnapping of children for exploiting them for begging". Prior to this
amendment there was no special provision for deterrent punishment for the greater evil of maiming
of children so as to make them objects of pity. By this section kidnapping or obtaining custody of a
minor, and the maiming of a minor for employing him for begging have been made specific offences
and deterrent punishment has been provided. Where A takes away a boy under 15 years without the
consent of boy's guardian, for the purpose of employing him for begging he will be liable under sub-
1. 2005 Cri. L.J. 3732 (S.C).

section (1) of this section. Similarly where A entices a boy below 10 years and maims him so that
the boy may be used for begging. A will be liable under sub-section (2) of this section.
364. Kidnapping or abducting in order to murder.— Whoever kidnaps or abducts any person in order that
such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be
punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and
Illustrations
(a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has
COMMENT
In Sacha Singh v. State of Punjab} during the period insurgency was at its peak in State of Punjab
two young Sikhs were abducted by armed assailants from their house on a dark night in the sight of
their parents. They were finished off within a short while by firing them with AK-47 rifles, by the
abductors, a little away from their house. The abductors were charged for murder. It was held that
when more persons than one have abducted the victim, who was later murdered it is within the legal
province of the court to justifiably draw a presumption depending on the factual situation that all the
abductors are responsible for the murder. Section 34 of the Penal Code could be invoked for the aid
to that end, unless any particular abductor satisfied the court with his explanation as to what else he
did with the victim subsequently i.e., whether he left his associates enroute or whether he dissuaded
others from doing the extreme etc. Abductors alone could tell the court as to what happened to the
deceased after they were abducted. When the abductors withheld that information from the court
there is every justification for drawing the inference, in the light of all preceding and succeeding
circumstances that the abductors are the murderers of the deceased.
In Jhapsa Kabari v. State of Bihar} at about 10 a.m. Naseem Kabari was murdered. The accused
persons, who were part of an unlawful assembly of about 50 persons, were armed with deadly
weapons like gun, bhala, farsa, and garasa, in prosecution of their common object caused death of
Shital Singh and Ram Sewak Singh, who along with Khattar Singh were believed by the unlawful
assembly to be responsible for murder of Naseem Kabari. The two deceased Ram Sewak Singh and
Shital Singh are cousin-brothers. Both of them were assaulted by means of farsa by accused Bhikhar
Raut. Accused Deep Narayan Singh cut the neck of Ram Sewak Singh while accused Israel Kabari
assaulted with bhala on the abdomen of Shital Singh. Both died instantaneously. Thereafter, the
unlawful assembly went to the house of Khattar Singh and according to the prosecution, accused
Tarni Prasad Singh, Bhikhar Raut and Tahir Kabari snatched his son Santosh Kumar Singh aged
about 3 years from the lap of wife of Khattar Singh. The child was taken away and on the next day
Santosh Kumar Singh was found murdered and his dead body was found buried in a paddy field
from where it was recovered by the investigating officer. Seventeen persons were tried for charge of
murder under sections 302/34 and 148 of the Indian Penal Code for intentionally and knowingly
causing the death of Ram Sewak Singh, Shital Singh and Santosh Kumar Singh in furtherance of
their common intention. They were also charged under sections 449 and 380 of the Indian Penal
Code. Accused Israel Kabari was separately charged under section 302 Indian Penal Code for
murder of Shital Singh and Deep Narayan Singh was charged for murder of Ram Sewak Singh.
Bhikhar Raut, Tahir Kabari and Tarni Prasad Singh were also charged under section 302/34, Indian
Penal Code for murder of Santosh Kumar Singh.
Out of 17 accused three were acquitted, one died in the course of trial and two did not
challenge their conviction. The remaining are appellants in this case. The accused persons were
convicted by trial court on the basis of evidence of
1. 2001 Cri. L.J. 1734 (S.C).
2. 2002 Cri. L.J. 587 (S.C).
S. 364-A ]
solitary eye witness, wife of one of the deceased. Her deposition was most natural with that of wife
of deceased, reliable and trustworthy and stood the test of cross-examination. It was held that basing
conviction on testimony of said solitary witness is not barred. Merely because another witness, 14
year old boy who lost his father and uncle in the incident, did not name her in F.I.R. in facts of case
would be of no consequence and does not require her evidence to be rejected. No specific
allegations were made against some of the accused. There was no evidence to establish that any
criminal act was done by them in furtherance of a common intention. They were not charged under
section 149. Therefore, in view of total absence of evidence both in respect of offences under
section 34 as well as section 149, conviction of the accused persons with the aid of section 149 or
section 34 was not proper. Further the conviction of three accused persons, namely, Tarni Prasad
Singh, Bhikhar Raut and Tahir Kabari for offence under section 364, Indian Penal Code based on
the testimony of the mother of kidnapped child was proper and no interference was necessary. The
appeal was partly allowed and the conviction of Tarni Prasad Singh, Bhikhar Raut and Tahir
Kabari, under section 364 and of Bhikhar Raut and Israel Kabari under Section 302/34 was
maintained. All others were acquitted.1
In Badshah and others v. State of U.P.,2 a report was lodged by Pahalwan Singh, brother of
Suraj Pal Singh (deceased) at 5.15 p.m. on 23-5-1980 that when Suraj Pal Singh along with Ram
Pal, Sumer Singh, Khetal Singh and Putta Lai were sleeping in their field where crops had been
harvested and ready for thrashing, the appellants and Budhi (since acquitted) reached there armed
with guns and caught hold of Suraj Pal Singh and bodily lifted him. Puttu Lai, Ram Pal and other
persons who were present there, questioned the accused persons as regards their said conduct and
being resisted thereto, they resorted to firing thereby causing panic amongst them. Allegedly they
also said that Suraj Pal Singh was being abducted for being killed. On hearing the hue and cry and
the sound of gun shots, the informant Pahalwan Singh came to the place of occurrence where the
other prosecution witnesses narrated the incident to him. Suraj Pal Singh was searched but was not
found, therefore a report was lodged expressing apprehension of danger to the life of Suraj Pal
Singh. There was deep rooted enimity between accused persons and Suraj Pal Singh and victim has
not been seen alive since thereafter for the last 27 years. It was held that under the circumstances
inference of murder can be drawn even though corpus delicti has not been proved. It was also made
clear that in the event of murder of an abducted person, either by direct or presumptive evidence an
inference of murder can safely be drawn in respect whereof it would not be necessary to prove the
corpus delicti. Therefore, accused persons were liable to be convicted under Section 364, IP. Code.
364-A. Kidnapping for ransom, etc.—Whoever kidnaps or abducts any person or keeps a person in
detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by
his conduct gives rise to a reasonable apprehension that such person who may be put to death or hurt, or
causes hurt or death to such person in order to compel the Government or any other person to do or
abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life,
COMMENT
In Malleshi v. State of Karnataka,2' Vijay Bhaskar (Pw-2) a college student studying in B.Sc.
1st year was staying in his uncle's house. He used to attend college daily by bus. Jagdish was a
classmate and resident of same locality and both of them usually came together to college. On 25-
1. Jhapsa Kabari v. State of Bihar, 2002 Cri. L.J. 587 (S.C).

2. 2008 II Cri. L.J. 1950 (S.C).
3. 2004 Cri. L.J. 4645 (S.C).
11-1997 Vijay Bhaskar (Pw-2), Jagdish (Pw-3) and their friend Raghvendra (Pw-4) came out of the
college after finishing their practical at about 2.45 p.m. At that time a person called Pw-2 by his
name. The boy went to him and he was told by that person that he knew his father Hanumantharao
as he used to come to their village in connection with his business. Then the man enquired from
Vijay Bhaskar about fees etc. and other expenses as he wanted to admit his son in the college. A
jeep was parked nearby and he took the boy towards jeep stating that his son is there. The boy was
then asked to sit in the jeep. Three other persons and two drivers also sat in the jeep. The jeep was
S. 364-A ]
then driven to Challakare on National Highway 4. The boy was treated well till they crossed
Challakare gate. Thereafter he was threatened not to raise any voice. They inquired of the boy about
phone number stating that they will ask his father to pay rupees 4 lakh to them for his release. The
boy told them that such heavy amount cannot be arranged and they may get about 50,000/- (fifty
thousand) by raising loan. They told him that their boss wanted at least 2 lakh. On the way they
allowed the boy to meet the call of nature, however, some of them accompanied him. He was given
water to drink. They stopped the vehicle near Byrapur village and accused persons got down to buy
cigarettes. The driver in the jeep asked the boy to run away and accordingly Pw-2, Vijay Bhasker
ran away and told about the incident to villagers who surrounded the jeep caught hold the accused
persons and informed to the police. They along with jeep were taken to the police station. Later
Vijay Bhasker (Pw-2) gave a complaint which was registered. The Trial Court convicted the
appellant accused under Section 364-A but the other three accused A-2 to A-4 were acquitted. The
High Court also dismissed the appeal and confirmed the judgment of the Trial Court. In appeal the
Supreme Court held that the demand of rasom was clearly conveyed to victim though actually it was
not made to his father who would ultimately have made payment. The person who pays ransom is
not determinative fact. The conviction was proper and only because demand was not conveyed to
father of victim the case does not come out of purview of Section 364-A of Indian Penal Code.
365. Kidnapping or abducting with intent secretly and wrongfully to confine person.—Whoever
kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined,
shall be punished with imprisonment of either description for a term which may extend to seven years,
COMMENT
Where a person is taken away forcefully from his house and is wrongfully confined in the
house of the accused and he is searched out from the house of the accused with sign of injury on his
back, the accused will be guilty of abduction.1
In Tarun Bora v. State of Assam? on Bhola Kakati (PW-1) was taken away on 18-8-1991
from the house of Nandeswar Bora by an ULFA extremist Tarun Bora with the help of 3-4 other
members of ULFA extremists, Bhola Kakati was taken away in the ambassador car by the appellant
and after that he was immediately blind folded and taken to a house and confined there for three
nights. On the first night he was assaulted. Motive behind kidnapping was that Bhola was giving
information to the army about ULFA. An FIR was lodged on 23-8-1991 by PW-6 with Bhimpura
Police Station. Bhola was released by the abductor on 20-8-1991. Pursuant to the FIR dated 24-8-
1991 a case under sections 364/325/307/34 of Indian Penal Code read with section 3/4 of TADA (P)
Act was registered.
It was held by the Supreme Court that during cross-examination of victim a suggestion was
put to him that the accused neither blind folded nor assaulted him, thus this indicates presence of
1. Karam Singh v. Charan Singh and others, 1984 Cri. L.J. (N.O.C.) 89 (Punj. & Har.).
2. 2002 Cri. L.J. 4076 (S.C).
accused during incident. Keeping the motive of accused in view the abduction of PW-1 Bhola
Kakati cannot be said to be for a joy ride. The conduct of the accused appellant thus clearly falls
within the mischief of section 365 of the Indian Penal Code.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or
abducts any woman with intent that she may be compelled or knowing it to be likely that she will be
compelled to marry any person against her will, or in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be
punished with imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine ; and whoever, by means of criminal intimidation as defined in this Code or of abuse of
authority or any other method of compulsion, induces any woman to go from any place with intent that
she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with
another person shall also be punishable as aforesaid.
COMMENT
Ingredients.—This section consists of the following :
1. Kidnapping or abducting of any woman.
2. Such kidnapping or abducting must be :
(i) with intent that she may be compelled, or knowing it to be
likely that she will be compelled to marry any person against her will;
or
(ii) in order that she may be forced or seduced to illicit
intercourse or knowing it to be likely that she will be forced or
seduced to illicit intercourse, or
(iii) by means of criminal intimidation or otherwise by inducing
any woman to go from any place with intent that she may be, or
knowing that she will be, forced or seduced to illicit intercourse.
S. 364-A ]
3. It is immaterial whether the woman kidnapped is married or not.

Kidnaps or abducts any woman.—No girl of 18 years of age or above can be
kidnapped, she can only be abducted. But a girl under the age of 18 years may be kidnapped as well
as abducted if she is removed by force or deceitful means.1
Intent of the accused.—The intention of the accused forms the essence of the offence under
this section. If the intent of the accused necessary to constitute the offence is established the offence
is complete whether or not the accused succeeded in effecting his purposes, and whether or not in
the event the woman consented to the marriage or the illicit intercourse. 2 Where A entices a girl
below 18 years for the purpose of selling her to another person for marriage, he would be guilty
under this section.
In Moniram Hazarika v. State of Assam,3 the victim of kidnapping (Pw-2) was a student of
class VIII standard. At about 6.30 p.m. on 30-3-1990 Paresh Saikia (Pw-1) came to know from his
brother that his sister was missing and also that she was seen in the company of the
accused/appellant in the locality. Therefore suspecting the appellant having kidnapped his sister he
went to the house of accused but he was not allowed to enter the house by the appellant and his
brother. However, he noticed there that arrangements were made for performance of marriage
ceremony. Thereafter (Pw-1) lodged a complaint at about 8.30 p.m. in police station that his minor
sister had been kidnapped by the accused/appellant. After investigation charge-sheet was submitted
and the trial was conducted. The victim was proved to be a minor aged about 16 years on the basis
of school certificate, the opinion of doctor (Pw-5) and the evidence of victim's •father (Pw-4).
Victim (Pw-2) herself has stated in her evidence that on the relevant date when she had gone out to
answer the call of nature the appellant by force took her to his house where his mother and sister-in-
1. Pmfiilla Kumar Basu, (1929) 57 Cal. 1074.

2. Khalil-ur-Rahman, (1933) 11 Rang. 213.
3. 2004 Cri. L.J. 2553.
law were present who made her change her dress and put vermilion on her forehead and prepared
her for the marriage with the appellant.
It was held that the evidence revealed that the accused was known to family of victim girl
and was on visiting terms. He developed intimacy with the minor and promised to marry her. It was
on the basis of this promise that the minor girl abandoned her lawful guardian and went away with
the accused. The evidence also shows that on that date preparation for marriage was also made in
the house of accused. Thus, the act of the accused amounts to enticement of minor. Therefore, the
accused was liable to be convicted for the offence under Section 366 of I.P.C.
Marriage under this section only means going through a form of marriage whether it is valid
or not.1 In Sant Ram,2 the mother-in-law deceitfully induced her widowed daughter-in-law under 16
years of age, to go from one place to another and then handed her over to M and N with the
intention that she might be compelled to marry against her will. It was held that she along with M
and N was guilty of an offence under this section.
The expression 'against her will' means that the act was done not only without consent of the
woman but in spite of her opposition to the doing of it.3
Forced or seduced to illicit intercourse.—The word 'forced' is used in this section in the
sense of its ordinary dictionary meaning and 'seduced' means inducing a woman to submit to illicit
intercourse at any time.4 In Ramesh5 case the Supreme Court disapproved the view that the word
'seduced' used in this section is properly applicable only to the first act of illicit intercourse unless
there be a proof of return to chastity on the part of the girl. Thus seduction does not only mean
inducing a girl to part with her virtue for the first time, but includes subsequent seduction for further
acts of illicit intercourse also.
Cases.—In Jasauli,6 two girls aged below 18 years ran away from their houses and remained
for a few days in the house of a woman of quality and no report was made to the police, the woman
in whose house the girls had stayed was held guilty under this section.
In Gopichand Fattumal,1 it was held that where a girl is kidnapped by a person from the
lawful guardianship and another person unconnected with kidnapping takes the girl for illicit
intercourse, the latter person cannot be convicted under this section.
Where an abducted woman had voluntarily lived with the accused for two months before
seduction as his wife and whom the accused intended to marry, no offence under this section was
held to have been committed.8
In Rajendra v. State of Maharashtra? Shahnaz Bano (PW-1) along with her daughter Sabana Bano (PW-22) had gone to see cinema on 5-6-1997. When both of
them came out of the theatre after the show at 3 p.m., the appellant who was going on a scooter stopped and offered to give them a lift on his scooter upto their house. When
PW-1 declined to accept his offer, the appellant threatened to kill her by pointing out a knife at her. On account of this threat PW-land PW-22 both had gone on the scooter of
appellant. Thereafter, both PW-1 and PW-22 were taken to a lodge owned by PW-3 Smt. Shobha and on reaching that place the appellant is alleged to have held the hand of
PW-1 and started taking her towards a room inside the lodge. The son of PW-3 started closing the door of the room from outside allegedly on direction of the appellant. PW-
1. Taker Khan, (1917) 45 Cal. 641.

2. (1929) 11 Lah. 178.
3. Khalil-ur-Rahman, (1933) 11 Rang. 213.
4. Ramesh, (1962) 64 Bom. L.R. 780 (S.C).
5. Ibid.
6. (1912) 34 All. 340.
7. A.I.R. 1961 Bom. 282.
8. Bhajan Das, A.I.R. 1924 Lah. 218.
9. 2002 Cri. L.J. 4353 (S.C).
S. 364-A ]
1 asked the boy not to close the door and at that time her daughter was also inside the room. Thereafter PW-1 forcibly pulled her hand out of the appellant's hold and both
mother and daughter went out and started crying. On seeing the mob gathering on road the appellant ran away on his scooter. Thereafter both PW-1 and PW-22 went to their
house and narrated the incident to her husband, who went to the police station and lodged a complaint at about 5 p.m. which was registered for offences under sections 341,
354, 366 and 506 of Indian Penal Code at 8.05 p.m. the appellant also reached police station at about the same time and on noticing that case had been registered against him,
he left his scooter in front of the police station and ran away. The scooter was seized by the police and a spear blade was recovered from the dicky of the said scooter. Later
on the appellant surrendered at the police station. He was charge-sheeted and tried. The trial court found the appellant guilty for offences under sections 341, 354, 506 and
366 of Indian Penal Code. In appeal the High Court acquitted the appellant for offences under sections 341 and 506 but maintained his conviction under sections 354 and 366
of Indian Penal Code.
The Supreme Court found that the complainant did not raise any alarm during their travel on
scooter. Neither the complainant disclosed that she went with the accused under some
misrepresentation nor any evidence was adduced on this aspect. Therefore it was held that the
finding of the High Court that the appellant adopted deceitful means to abduct PW-1 and PW-22
cannot be sustained. In order to constitute offence of 'abduction' a person must be carried off
illegally by force or deception, that is to compel a person by force or deceitful means to induce to go
from one place to another. In the instant case neither of these two ingredients are established.
Therefore the order of the High Court affirming the conviction of the appellant under section 366,
Indian Penal Code read with section 354 was set aside.1
In Rajesh v. State of Maharashtra,2 it is alleged that seven accused persons abducted Archana
with the object of getting her married with Navneet accused No. 1. However they were not
successful in taking her away as on hearing her shouts Dr. Mahajan (PW-13) came there, then
followed the appellants in his car, overtook them and prevented them from taking her away while
the appellants were running away, they were followed by the persons who were with Dr. Mahajan
and also by two constables who had come there in the meantime. Appellant Irshad was caught on
the spot but others were able to run away. It was prosecution's case that Irshad after being caught
disclosed the names of remaining accused and also that A-l Navneet and appellant Rajesh and
Taufiq were also caught from a nearby place within a short time after the incident. It was held that
the evidence of Archana (PW-6), Dr. Mahajan (PW-1 3) and police constable Mule (PW-10) clearly
establishes the presence of all the appellants and accused Navneet at Nandura, a place 200 kms.
away from Nagpur where the appellants and accused Navneet were residing. Their evidence also
establishes that accused Navneet and appellant Manoj made the girl sit in the car in which they had
come and were about to take her away. Archana did not name the appellants in her complaint as the
persons whom she had recognised while she was being taken away in the car. It was held that the
accused is liable for conviction and minor omission in testimony of girl was immaterial. However,
considering the fact that Archana and Navneet were known as they were
1. Rajendra v. State of Maharashtra, 2002 Cri. L.J. 4353 (S.C).
2. A.I.R. 1998 S.C. 2724.
499 INDIAN PENAL CODE [ S. Sbrfi
studying at Nagpur and Archana had completed 18 years the accused believed that she would come
with him, his sentence of imprisonment of two years was reduced to one year.
In Gurnam Singh v. State of Punjab,1 the two appellants Gurnam. Singh and Palwinder Singh
were alleged to have kidnapped three victims and killed them. There was testimony of witnesses
that victims, Inder Singh, Puran Singh and Baldev Singh were kidnapped by accused and co-
accused. Evidence also showed that accused were armed with deadly weapons and they had also
given threats to witnesses. Medical evidence showed that death of victims took place shortly after
they were kidnapped. It was held that testimony of witnesses cannot be discarded and the inference
that persons who had kidnapped them can be drawn. However in the absence of evidence regarding
motive for abduction and as regards accused who actually caused deaths of victims, death sentence
cannot be awarded and therefore conviction of accused under section 302 was altered to one under
section 302 read with section 34, Indian Penal Code.
366-A. Procuration of minor girl.—Whoever, by any means whatsoever, induces any minor girl
under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or
knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall
be ^punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
COMMENT
This section deals with procuration of minor girls from one part of India to another for
prostitution.
(1) Inducing a girl under 18 years of age to go from any place or to do an act, and
(2) Intention or knowledge that such girl will be forced or seduced to illicit
intercourse with a person.
Inducement.—In order to constitute an offence under this section, inducement with a
particular object is necessary and when after such inducement the offender offers the girl to several
persons a fresh offence is not committed at every fresh offer for sale. 2 In Ramesh? case it was held
by the Supreme Court that where a woman, below the age of 18 years, follows the profession of a
prostitute, and in following that profession she is encouraged or assisted by some one, an offence
under this section is not committed by such person, for it cannot be said that the person who assists
a, girl accustomed to indulge in promiscuous intercourse for money in carrying on her profession
acts with intent or knowledge that she will be forced or seduced to illicit intercourse.
Seduced.—In this section 'seduced' means inciting or tempting irrespective of whether the
girl has been previously compelled or has submitted to illicit intercourse. 4 If at the time the girl is
removed there is no intention on the part of the accused to have intercourse with her, no offence
under this section is committed.5
366-B. Importation of girl from foreign country.—Whoever imports into India from any country outside India or from the State of Jammu and Kashmir, any girl under the
age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with
imprisonment which may extend to ten years, and shall also be liable to fine.
1. AIR 1998 S.C. 2673.

2. Sis Ram, (1929) 51 All. 1888.
3. (1962) 64 Bom. L.R. 780 (S.C).
4. Gopichand Fattumal, (1960) 63 Bom. L.R. 408.
5. Bishnath Prasad, A.I.R. 1948 Oudh 1.
COMMENT
This section makes it an offence to import into India from any country outside India girls below the
age of 21 years for the purpose of prostitution. Ingredients.—This section requires that—
(1) The girls must be imported into from places outside India including Jammu and
Kashmir.
(2) The age of the girl imported must be below 21 years.
(3) The girls must be imported with the intent that they may be, or knowing it to be
likely that they will be forced or seduced to illicit intercourse with another person.
367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.—Whoever kidnaps or
abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger
of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely
that such person will be so subjected or disposed of, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.—Whoever, knowing
that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be
punished in the same manner as if he had kidnapped or abducted such person with the same intention or
knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
COMMENT
Under this section those who assist the kidnapper are punished. The subsequent abetment is
punished as a substantive offence. A kidnapper cannot be punished under this section.1
- 369. Kidnapping or abducting child under ten years with intent to steal from its person. —Whoever
kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable
property from the person of such child, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
370. Buying or disposing of any person as a slave.—Whoever imports, exports, removes, buys, sells or
disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be
punished with imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.
COMMENT
This section punishes the practice of slavery not only in its strict and proper sense but also in
any modified form where any absolute power is asserted over the liberty of another.
Ingredients.—This section punishes—
1. Import, export, removal, buying, selling of a person as a slave;
2. The disposal of a person as a slave; and
3. Detention, reception and acceptation of any person against his will as a slave.
Slave.—Slave is a human being without any rights of status and is treated as a property of
another as a mere chattel, the owner having absolute power of disposal by sale, gift or otherwise and
even of life or death, over the slave, without being responsible to any legal consequence. 2 There
must be a selling or disposal of a person 'as a slave' that is a selling or disposal whereby one who
claims to have a property in the person as a slave transfers that property to another.'
1. Bannu Mai, (1926) 2 Luck 249.
2. Per Stuart C.J. in Ram Kumar, (1880) 2 All. 723.
Buying of girls.—If the seller and purchaser have an intention to marry her then this section
does not apply. But where A kidnapped a Hindu girl and sold her to B, a Mohammedan who
changed her name and religion and took menial services from her by giving her food and clothing
but no wages and did not allow her to leave the house and the girl escaped after serving for about 4
years it was held that B was guilty under this section.2
B, a girl of thirteen years was purchased by A for Rs. 25/- from S. The sale document
described B as a slave girl purchased by S from P. It was held that A was guilty of buying B as a
slave.3
371. Habitual dealing in slaves.—Whoever habitually imports, exports, removes, buys, sells, traffics or
deals in slaves, shall be punished with imprisonment for life, or with imprisonment of either description
for a term not exceeding ten years, and shall also be liable to fine.
372. Selling minor for purposes of prostitution, etc.—Whoever sells, lets to hire, or otherwise dispose of
any person under the age of eighteen years with intent that such person shall, at any age be employed or
used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral
purpose, or knowing it to be likely that such person will, at any age, be employed or used for any such
purpose, shall be punished with imprisonment of either description for a term which may extend to ten
Explanation I.—When a female under the age of eighteen years is sold, let for hire, or otherwise
disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of
such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that
she shall be used for the purpose of prostitution.
Explanation II.—For the purposes of this section "illicit intercourse" means sexual intercourse
between persons not united by marriage, or by any union or tie which, though not amounting to a
marriage, is recognised by the personal law or custom of the community to which they belong or, where
they belong to different communities, of both such communities, as constituting between them a quasi
marital relation.
COMMENT
Ingredients.—Ingredients of this section are :—
1. A person is sold, or let to hire, or disposed of in any other manner.
2. Such person must be below the age of 18 years.
1. The selling, letting to hire, or other disposal must be with intent or knowledge of
likelihood that the victim shall at any age be employed or used for (i) prostitution, or (ii)
illicit intercourse with any person or (iii) any unlawful and immoral purpose.
This section applies to persons below eighteen years of age. 'Person' includes male and
female. It applies to married or an unmarried female even where such female prior to sale or
purchase was leading an immoral life.4
The ceremony of tying a talimani to a minor girl, worshipping a basin of water by her and distribution of food, is merely a preliminary step before the selling,
letting out or disposing of the girl for the purpose of prostitution, and is no offence under this section.5 The word prostitution includes every act of lewdness and is not
confined to natural sexual intercourse only. The argument of accused that the girl was not destined for a life of prostitution but merely for one act of sexual intercourse is not
reliable.
1. Per Oldfield J. in Ram Kumar, (1880) 2 All. 723 at p. 731.

2. Mirza Sikwxdur Bukhat, (1871) 3 N.W.P. 146.
3. Amino, (1884) 7 Mad. 277.
4. Ismail Rustom Khan, (1906) 8 Bom. L.R. 236.
5. Sahebava Birappa, (1925) 27 Bom. L.R. 1022.
The Dev Dasi custom in which minors are dedicated to the service of a temple as dasis
amounts to a disposal of such minors, knowing it to be likely that they will be used for the purpose
of prostitution, within the meaning of this section.'
373. Buying minor for purposes of prostitution etc.— Whoever buys, hires or otherwise obtains
possession of any person under the age of eighteen years with intent that such person, shall, at any age, be
employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and
immoral purpose, or knowing it to be likely that such person will at any age, be employed or used for any such
purpose, shall be punished with imprisonment of either description for a term which may extend to ten years,
Explanation I.—Any prostitute or any person keeping or managing a brothel, who buys, hires or
otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be
presumed to have obtained possession of such female with that intent that she shall be used for the purpose of
prostitution.
Explanation II.—"Illicit intercourse" has the same meaning as in section 372.
COMMENT
The giver and taker of a person under eighteen years of age for an immoral purpose are
punished conjointly by this section and section 372. The previous section deals with sellers, letters
to hire or otherwise dealers of any person below the age of eighteen years for immoral purpose
while the present section deals with the counterparts who receive, buy or hire or otherwise obtain
possession.
»\ Thus section 372 covers all the parties who sell or let including father, mother or natural
guardians, while section 373 deals with keepers of brothels and all others who earn profits arising
from the general prostitution of girls.
1. Buying, hiring or otherwise obtaining possession of a person.
2. The person should be under the age of 18 years.
3. The buying or hiring etc. should be with an intention or knowledge of likelihood
that the person shall at any age be used or employed for—
(a) prostitution,
(b) illicit intercourse, or
(c) any unlawful and immoral purpose.
The presumption of the explanation will take place only when the accused is a prostitute or is
a keeper or manager of a brothel at the time he or she obtains possession of a girl. 2 The Bombay
High Court in Bhag Chancf case has held that it is not essential to be offence that buying, hiring or
otherwise obtaining possession of the person should be from a third party or person. The offence
becomes complete as soon as the possession of the victim is accomplished with the requisite
knowledge of the use as covered by the section. A person who steals a minor girl below eighteen
years of age with the requisite intention obtains possession of her within the meaning of this
section.4
Because an offence under section 372 which covers disposing of a girl necessarily involves two parties to the transaction it is not necessary that an offence under
section 373 which covers obtaining of possession must involve two parties.5
1. Basava, (1891) 15 Mad. 75; Tippa, (1892) 16 Bom. 737.

2. Banubai Irani, (1942) 45 Bom. L.R. 281 (F.B.).
3. (1934) 36 Bom. L.R. 379.
4. Ibid.
5. Cordhan Kalidas, (1941) 43 Bora. L.R. 847.
This section merely specifies the object of the possession, namely, the prostitution or illicit
intercourse, it does not specify the nature, duration or intensity of the possession. So where a brothel
keeper allowed a girl under eighteen years of age to visit the brothel for two or three hours in the
night and allowed her to prostitute herself to customers for money, it was held that the brothel
keeper was guilty of an offence under this section. 1 The possession of a girl for a single act of
intercourse is not sufficient. Under this section it is more than this. It includes definite control over
person so possessed. It indicates possession with a power to dispose of.2
Possession implies some sort of control. Where a girl elopes with another on her own accord
and there is nothing to show that she cannot leave him at any moment, the man cannot be said to
have possession of the girl.3
At any age.—The introduction of the words 'at any age' covers the offence even if it was
committed after the completion of eighteen years, that is at any time.
374. Unlawful compulsory labour.—Whoever unlawfully compels any person to labour
against the will of that person, shall be punished with imprisonment of either description for
a term which may extend to one year, or with fine, or with both.
COMMENT
This section deals with forced labour. The offence under this section consists in unlawful
compulsion of any person to labour against the will of the person.
Sexual offences
375. Rape.—A man is said to commit "rape" who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the
six following descriptions :—
First.—Against her will. Secondly.—
Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent
is given because she believes that he is another man to whom she is or believes herself to be lawfully
married.
Fifthly.—With her consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to which she
gives consent.
Sixthly.—With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence
of rape.
Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years
of age, is not rape.
COMMENT
Ingredients.—This section consists of the following—
(1) Sexual intercourse by a man with a woman.
(1) The sexual intercourse must be under circumstances falling under any of the six
clauses of Section 375.
Sexual intercourse.—To constitute this offence sexual intercourse by a man with a woman
is necessary. A 'man' is defined by section 10 of the Code as a male human being of any age. Thus a
1. Vithabai Suklia, (1928) 30 Bom. L.R. 613.

2. Bagh Chand, (1934) 36 Bom. L.R. 379.
3. Jateendra Mohan Das, (1937) 2 Cal. 107.
boy above 12 years of age is capable of committing rape under this section, whereas a boy below 12
but above 7 years of age enjoys a qualified immunity.
In Ram Kripal S/o. Shyam Lai Charmakar v. State of Madhya Pradesh? the victim had gone
to field to collect grass. On her way back accused obstructed her and proposed for sexual
intercourse. On her refusal accused forcibly committed sexual intercourse. The evidence of victim
and medical evidence confirmed fact of penetration of his male organ. It was held that in case of
offence of rape penetration of male organ in female organ is a sine qua non which was satisfied in
this case and hence conyiction of accused for offence of rape was proper.
It was held in Sakshi v. Union of India,1 that by a process of judicial interpretation the
provisions of Section 375 of I.P.C. cannot be altered so as to include all forms of penetration such as
penile/vaginal penetration, penile/oral penetration, finger/vagina and finger/penile/and penetration
and object/vaginal penetration within its ambit. Section 375 uses the expression "sexual intercourse"
but the said expression has not been defined. The dictionary meaning of the word "sexual
intercourse" is heterosexual intercourse involving penetration of the vagina by the penis. It was also
held that only sexual intercourse, namely heterosexual intercourse involving penetration of the
vagina by the penis coupled with the explanation that penetration is sufficient to constitute the
sexual intercourse necessary for the offence of rape has been held to come within the purview of
Section 375 of I.P.C. An exercise to alter the definition of rape, as contained in Section 375 of I.P.C.
by a process of judicial interpretation and that too when there is no ambiguity in provisions of the
enactment is bound to result in good deal of chaos and confusion, and will not be in the interest of
society at large.
It was also pointed out that the wide definition which the petitioner wants to be given to
"rape" as defined under Section 375, I.P.C. so that the same may become an offence punishable
under Section 376 of I.P.C. has neither been considered nor accepted by any Court in India so far.
Against her will.—Clause (1) of this section operates where the woman is in possession of
her sense and therefore, capable of consenting. It was held in State of Maharashtra v. M.N.
Mardlkar? that the right of privacy is included in right to live as guaranteed by Article 21 of the
Constitution and a woman of easy virtue is entitled to privacy as and when she likes. She is fully
entitled to protect her person if an attempt ;a *nnAt *co -vrdnte a against 'ner wis'n.
Without her consent.—This clause operates where a woman is insensihle whether because of
the influence of drink or drugs or any other cause, or is so imbecile that she is incapable of giving
any rational consent. Consent of the woman must have been obtained prior to the act. It would be no
defence that the woman consented after the act,4
Every act done "against the will" of a woman, is done 'without her consent' but an act done 'without the consent' of a woman is not necessarily "against her will".
The expression 'against her will' imports that the act is done in spite of the opposition of the woman to the doing of it. Where a man had carnal knowledge of a girls of
imbecile mind and it was found that the act was without her consent as/she was incapable of giving consent because of the defect of understanding, it was held that the man
was guilty of rape.5 The consent of a woman obtained by putting her in fear of death or of
1. 2007 II Cri. L.J. 2302 (S.C).

2. 2004 Cri. L.J. 2881 (S.C).
3. A.I.R. 1991 S.C. 207.
4. Hawk, P.C.C. 16, S. 7, p. 122,
5. Fletcher, (1859) 8 Cox 131.
S. 375 ]
injury is not consent at all. A sleeping woman cannot consent. Therefore, where a man had carnal
knowledge of a woman while she was asleep, he would be guilty of rape.' So also consent given by
a woman of unsound mind or an intoxicated woman is no defence. Where a man made a girl of 13
years quite drunk, and whilst she was insensible violated her person, it was held to be a case of
rape.2
The fact that the girl was virgo intacta upto the date of occurrence is a strong proof against
the intercourse having taken place with the consent of the girl. 3 In the case of charge for rape the
onus lies upon the prosecution to prove that the sexual intercourse was without the consent or
against the will of the woman. It would not be necessary for the defence to prove that the sexual
intercourse was with the consent of the woman.4
If a girl does not resist intercourse in consequence of misapprehension, this does not amount
to a consent on her part. In a case a medical practitioner had sexual intercourse with a girl of 14
years who had gone to him for medical advice. It was found that the girl did not resist because of a
bona fide belief that the doctor was treating her medically, the doctor was guilty of rape.5
So also where a surgeon had sexual intercourse with a girl under the pretence of performing
surgical operation, he was held guilty of rape. 6 In WUliams,1 the accused was engaged to give
lessons in singing and voice production to a girl of 16 years. He had sexual intercourse with the girl
under the pretence that the breathing was not quite right and that he had to perform an operation to
enable her to produce her voice properly. The teacher was held guilty of rape. If a woman was
willing to allow sexual intercourse with her for money consideration, the fact that the consideration
was found to be fictitious would not vitiate the consent.8
In Uday v. State of Karnataka? accused expressed love and promised to marry the
prosecutrix on a later date. Prosecutrix was quite aware that they belonged to different castes and
proposal of their marriage will be opposed by their family members. Yet prosecutrix started
cohabiting with the accused consciously and became pregnant. On a charge for rape the Court held
that the consent given by the prosecutrix for cohabitation cannot be said to be given under
misconception of fact i.e., a promise to marry but because she also desired for it. She had freely,
voluntarily and consciously consented to have sexual intercourse with the appellant not only on
belief of promise for marriage but because of their deep love with each other. The appellant made a
promise to marry on more than one occasion and in such circumstances the promises lose all
significance particularly when" they are overcome with emotions and passions and find them in
situations and circumstances where they in a weak moment, succumb to the temptation of having
sexual relationship. This is what happened in this case and prosecutrix willingly consented to
having sexual intercourse with the appellant. She had sufficient intelligence to understand the
significance and moral quality of the act she was consenting to. Hence appellant is not liable to be
convicted for an offence of rape under section 376, Indian Penal Code.
In Pradeep Kumar Verma v. State of Bihar,10 it was held that in case of a representation
deliberately made by the accused with a view to elicit the assent of victim without having intention
1. Mayers, (1872) 12 Cox. 311.

2. Complin, (1845) 1 Cox. 220.
3. Sultan, (1923) 24 Cri. L.J. 1488.
4. Bhat Prabha Ruda, (1961) 2 G.L.R. 251.
5. Williams case, (1850) 4 Cox. 220.
6. Flattery, (1877) 2 Q.B.D. 410.
7. (1923) 1 K.B. 340.
8. Moti Ram, A.I.R. 1954 Nag. 922.
9. 2003 Cri. L.J. 1539 (S.C).
10. 2007 IV Cri. L.J. 4333 (S.C).
to marry her, will vitiate the consent given by victim. It was also observed that if on the facts it is
established that at the very inception of the making of promise the accused did not really entertain
the intention of marrying victim and the promise to marry held out by him was a mere hoax, the
[ S. 375
consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the
ambit of Section 375 clause second. Such representation would only vitiate the consent.
Consent obtained by putting a woman in fear of death or hurt.— The fear which prompts a
woman to give her consent must be of the kind stated in clause (3) of this section, i.e. consent must
have been obtained by putting a woman in fear of death or of hurt.
Fourth clause.—In Bhupinder Singh v. Union Territory of Chandigarh,1 complainant, Manjit Kaur
was employed as a clerk in a society. She was daily commuting from Ambala to Narsingh Garh.
Bhupinder Singh was employed in State Bank of India, Patiala at Chandigarh. He used to come
office of complainant daily and thus developed intimacy with her and asked her to marry without
disclosing that he was already married. She agreed to the proposal. They married in Gurdwara after
exchanging garlands before holy Granth Sahib in 1990. At that time one Sohan Singh husband of
her cousin sister was also present. Thereafter she started co-habiting with Bhupinder. She became
pregnant but accused got her aborted against her wishes in 1991. She again became pregnant in July
1993. On 6-3-1994 when she had gone to rose garden, she met Devinder Kumar Bansal and Vinod
Sharma, who were friends of her husband. They told Manjit Kaur that Bhupinder was already
married with one Gurinder Kaur and was having children as well. On coming back to her residence
she asked Bhupinder about previous marriage but he left for Patiala on the pretext of attending some
training course. Later she gave birth to a female child on 16-4-1994. But Bhupinder did not turn-up.
She made a complaint to police and a case was registered under Sections 420/376/498-A, IP. Code.
In this case consent for co-habitation was given by Manjit Kaur under the belief that Bhupinder was
her husband. Accused was held guilty of rape because prosecutrix married accused without
knowledge of his first marriage. It was also held that delay in lodging complaint by prosecutrix
cannot, in any event, wash away the offence because consent given under belief that accused is her
husband is no consent. Therefore, Supreme Court refused to interfere with the order of conviction
passed by High Court.
Sixth clause.—-Sexual intercourse with a woman with or without her consent when she is
under 16 years amounts to rape.
The prosecutrix left her mother's house and joined the accused because her mother has turned
down the proposal of her marriage with the accused on the ground that she was too young. While
she was with the accused he had sexual intercourse with her against her will. The act of intercourse
with the prosecutrix will be covered by this clause.2
A, a minor girl, aged 15 years having been rebuked by her mother leaves her house. At
railway station she meets 'B' who takes her to his house. 'B' provides her clothes, money and
ornaments at his house and has sexual intercourse with the girl with her consent. In this case since
the girl has left her guardianship volutarily and met B at the railway station who took him to his
house, B is not liable for kidnapping from lawful guardianship. But B will definitely be liable for
committing the offence of rape even though sexual intercourse was committed with the consent of
the girl because the girl was a minor and could not give a valid consent in view of clause (6) of
section 375. The girl being below 16 years of age is not competent to give a valid consent.
Explanation.—For an offence under this section mere penetration is sufficient to constitute
sexual intercourse. To constitute penetration it must be proved that some part of the virile member
of the accused was within the labia of the pudendum of the woman, no matter how little. 3 The only
thing is whether the private parts of the man entered into the person of the woman or not. It is not
relevant as to how far it has entered.
1. (2008) 3 Cri. L.J. 3546 (S.C).
2. Mana Ramchandra Jadhav v. State of Maharashtra, 1984 Cri. L.J. 852. (Bom).
3. Joseph Lines, (1844) 1 C & P. 393.
Exception.—Sexual intercourse by a man with his wife under 15 years of age is rape
whether, it has been done with or without her consent. Such a check was though necessary to
restrain men for taking advantage of their marital rights prematurely. No man can be guilty of rape
on his own wife when she is over 15 years on account of the matrimonial consent she has given.
Distinction between indecent attack and attempt to rape.—An offence of indecent attack
against a woman is not complete so long as it was the intention or knowledge of the accused that by
such an act her character will be maligned. An indecent attack does not amount to an attempt of
rape unless it is established that the accused was firmly determined to have his lust satisfied inspite
of all obstacles.2
Indecent assault and attempt to commit rape distinguished.—An offence of indecent
assault on a woman cannot be complete unless there is intention or knowledge that the woman's
modesty will be outraged.3 An indecent assault on a woman does not amount to an attempt to
commit rape, unless it is shown that there was a determination in the accused to gratify his passion
at all events, and in spite of all resistance,4
Corroboration of evidence.—A woman who has been raped is not an accomplice. A woman
who was ravished is the victim of an outrage and if she consented there is no rape. In the case of a
girl below the age of consent, her consent will not matter so far as the offence of rape is concerned,
but if she has consented her evidence will be looked upon with suspicion as that of an accomplice.
The true rule of prudence requires that in every case of this type the advisability of corroboration
should be present in the mind of the judge and that must be indicated in the judgment. But
corroboration can be dispensed with if in the particular circumstances of the case the judge is
satisfied that it is safe to do so.5
S. 375 ]
For a conviction for rape corroboration is not necessary. In Indian climate to emphasise for
corroboration is not good. No girl or woman would like to throw light on any incident which is
likely to affect her chastity, she is always afraid of being ousted from the society, from being
chastised by her family members, friends, neighbours, etc. In the presence of all these factors if the
offence is brought before the court, then it must be accepted as true and not fabricated. In principle
the evidence of a victim of rape stands on the same footing on which the evidence of an injured
witness. But the evidence of a raped woman should be given more importance. If the evidence of
the victim does not suffer from any basic infirmity and the probabilities factor does not render it
unworthy of credence, as a general rule, there is no reason to insist on corroboration except from
medical evidence, where having regard to the circumstances of the case, medical evidence, can be
expected to be forthcoming subject to the following qualification : corroboration may be insisted
upon when a woman having attained majority is found in a compromising position and there is
likelihood of her having levelled such an accusation on account of the instinct of self preservation
or when the 'probabilities factors' is found to be out of tune.6
In State of H.R v. Raghubir Singh? a girl Raksha Devi aged about 7/8 years was alleged to have been raped by Raghubir Singh aged about 16 years. Father of the
victim saw the accused lying on top of the prosecutrix under the mango tree. On alarm being raised he ran away carrying with him his underwear. On examination the Doctor
found her hymen ruptured and slight bleeding coming out of the vaginal edges. Blood clot was also present. Shawl on which the prosecutrix was made to lie while
committing the rape was found having some mud and blood-stains, Mud was found on the shawl because it was raining at the time of occurrence. Doctor opined that the
accused was capable of sexual intercourse and the girl was raped. It was held that circumstances such as absence of spermatozoa on the vaginal slide and absence of injuries
on the male organ is not always fatal to the prosecution cases, these circumstances should be considered in the light of the peculiar factual set up of the case. There is no legal
compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Therefore on facts, convincing and trustworthy testimony of
the prosecutrix corroborated by medical evidence and testimony of other prosecution witnesses, conviction is maintainable.
1 . Allen, (1839) 9 C. & P. 31.

2. Shanker, (1881) 5 Bom. 403.
3. Fatlma v. Captain Mc. Comtek, (1912) 6 B.L.T. 21.
4. Shanker, (1881) 5 Bom. 403.
5. Rameshwar, (1952) S.C.R. 377; Sidheshwar Ganguli, A.I.R. 1958 S.C. 143.
6. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri. L.J. 1096 (S.C).
7. (1993) 2 S.C.C. 622.
In Rafique v. State of U.R? the appellant contended that the absence of injuries on the person
of the victim was fatal to the prosecution and corroboration was necessary. Rejecting these
contentions the Supreme Court held that corroboration as a condition for judicial reliance on the
testimony of prosecutrix is not a matter of law, but a guidance of prudence under given
circumstances. When rapists are revelling in their promiscuous pursuits and half of human kind—
women kind—is protesting against its helpless lot, where no women of honour accuses another of
rape, since she sacrifices thereby what is dearest to her, the court cannot cling to a fossil formula
and insists on corroborative testimony, even if, taken as a whole, the case spoken to by the victim
strikes a judicial mind as probable, Krishan Iyer, J., said, "a sensitised judge who sees the totality of
the circumstances wou'd not reject the testimony of the rape victims unless there are very strong
circumstances initially against its veracity.2 Therefore, it is not always necessary, that the testimony
of the victim be corroborated by some other evidence before the accused can be convicted.
Similar views have been expressed in Krishna Lai v. State of Haryana? In this case a girl
below 16 years was sleeping in the night outside her house in the company of her mother and other
children when the accused appellant along with another person carried her away to a nearby
godown under intimidation, raped her and then put her back in the cot, from where she was
removed. In the morning her mother saw blood on the daughter's salwar and on inquiry the victim
complainingly narrated the last night's incident. The accused was, therefore, charged for rape.
Krishna Iyer, J., observed :
"A socially sensitised judge is a better statutory armour against gender outrage
than long clauses of a complex section with all the protections writ into it."
In rape cases the court must bear in mind the human psychology and behavioural probability
when assessing the testimonial potency of the victim's version. The evidence of the victim if
corroborated by circumstances would be sufficient to found conviction under Section 376 I.P.C. The
injury on the complaint to her parents and the presence of blood on her clothes are also testimony
which warrants evidence. To forsake these vital considerations corroboration is to sacrifice common
sense in favour of an artificial notion called judicial probability.
In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat? it was held that : where a person is
alleged of rape and he is found guilty of the same he should be punished by the least punishment if
there are relevant factors for it, such as he has lost his employment, sufficient time has elapsed since
he was punished by the High Court, inability to find a suitable match for his own daughter and
disrespect by the society etc. The cumulative effect of all these factors and entire circumstances of
the case should be taken into consideration.
Accomplice.—In a case of rape the victim is not treated as an accomplice. The evidence of
the victim is to be treated almost like the evidence of an accomplice requiring corroboration. There
must be an indication in the course of the judgment that the judge had this rule in mind when he
prepared the judgment. Where the conviction is based on the evidence of a prosecutrix without any
corroboration, it will not be illegal on the sole ground. In the case of grown up and married woman
it is always safe to insist on.such corroboration. Wherever corroboration is necessary it should be
from an independent
1. (1980) 4 S.C.C. 262,

2. Ibid.
3. (1980) 3 S.C.C. 150.
4. 1983 Cri. L.J. 1096 (S.C).
507 [ S. 375
source but it is not necessary that every part of the evidence of the victim should be confirmed in every, detail by
independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence
or from both.1
It was held in Anion Kumar v. State of Haryana? that it is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her
testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal
than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both
physical as well as psychological and emotional. However, if the Court finds it difficult to accept the version of
the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance
to her testimony. Assurance short of corroboration as understood in the context of an accomplice would suffice.
It was further held that to constitute the offence of rape, it is not necessary that there should be complete
penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the lebia
majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of
rape as defined in the law. The depth of penetration is immaterial in an offence punishable under section 376
I.P.C.
Cases.—In Tukaram v. State? a minor girl of 15 years was detained in police custody because her
brother had made a report of abducting his sister by one Ashok with whom she was in love. While they were
about to leave the police station the girl in custody was dragged by one constable, Ganpat and was taken to a
toilet and raped. After him, another constable Tukaram tried to rape her but being too heavily drunk, did not
succeed. None of the two accused were held guilty for the following reasons :
(1) The girl was not subject to any fear which must have led her to submit to the act.
(2) There were no marks of injury on her person which show that the whole affair was a
peaceful one and that the story of stiff resistance having been put up by the girl is all false.
(3) The girl was not alone when Ganpat, the constable ordered her to stay and she could have
resisted and appealed to her brother. Her conduct in meekly following Ganpat and allowing him to have
his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was
not consent: which could be brushed aside as "passive submission"
This case has been the focus of many demonstrations and criticisms by all sections of the society.
However, in a subsequent case4 the Supreme Court atoned for what it has decided in Mathura case.5
In Rafique v. State of U.P.,6 a middle aged Bal Sewika was raped by the appellant when she was sleeping
in a girl school. The next day she narrated the incident to the Mukhya Sewika of the village and the appellant
was convicted even in absence of injuries on the person of the victim.
In Fagnu Bhoi and another v. State of Orissa? one Santosini, while coming back after taking bath in a
canal was caught hold by the accused persons who dragged her to thrashing floor. They made the victim naked,
made her lie on the ground and were trying to rape her. Santosini was shouting for help and while she was
struggling two persons came from a nearby thrashing floor and on their protest the accused fled away. It was
held that the act of the accused persons was not mere preparation but an attempt to commit rape. No distinction
can be made between a case of raper and attempted rape to urge that in case of rape the victim's evidence
may be sufficient but not in case of urge that in case of rape the victim's evidence may be sufficient
1. Sheikh Jakir v. State of Bihar, 1983 Cri. L.J. 1285 (S.C).

2. 2004 Cri. L.J. 1399 (S.C).
3. A.I.R. 1979 S.C. 185.
4. Rafique v. State of U.R, (1980) 4 S.C.C. 262.
5. Tuka Ram v. State, A.I.R. 1979 S.C. 185.
6. (1980) 4 S.C.C. 262.
7. 1992 Cri. L.J. 1808 (Orissa).
but not in case of attempted rape. Can it be said that a woman is only to be believed after she is
raped, and not after she has been disrobed but successfully warded off the attempt to rape. It was
further held that absence of injuries does not rule out possibility of rape or attempted rape. It would
all depend on the circumstances of the case. There was no evidence that thrashing floor had a rough
surface and resistance on the part of victim may not necessarily result in injuries.
In Balwant Singh v. State of Punjab,1 while Km. Raj want Kaur aged about 19/20 years was
going to her college at 11 a.m. the five accused persons forcibly took her in a car to the canal bank
and there in a grove raped her one after another, She lost consciousness while the last one of them
was committing rape on her. When Km. Kaur did not return home till 5 p.m. her father Dalip Singh
started and she was found lying unconscious under a banana tree near the canal bridge. She was
brought home and in spite medical treatments did not regain consciousness till one hour before dawn
next day. After regaining consciousness she narrated to her father the entire incident. She was
medically examined but the report did not specify the number of persons who committed rape. It
was held that the evidence of prosecution supported by the medical report and by the evidence given
by her father was sufficient to justify conviction of the accused persons who had gangraped her. The
fact that the medical report does not specify the number of persons committing rape cannot defeat
the conviction. It is enough that the report says that there were more than one person. So also
absence of injuries on back of prosecutrix does not make prosecution case disbelievable. The
accused were four in number and the prosecutrix was a girl of 19/20 years. She was not expected to
offer such resistance as would cause injuries to her body.
S. 375 ] 508
In Prahlad Singh v. State of Madhya Pradesh,2 it was alleged that the appellant on 26th May,
1984 committed rape on a minor girl Kumari Sarvesh while she was playing outside her house in the
company of her two younger sisters. The appellant induced her and took her outside the military
camp and subjected her to sexual assault. Her father Siyaram went in search of the girl and found
her crying on the road. The girl then narrated the incident to her father. An identification parade was
held and the prosecutrix identified the appellant. The factum of rape was established beyond doubt.
But during cross examination the prosecutrix deposed that she was tutored by her father and police
to give statement recognising the appellant. The accused was shown to her while he entered the
court. It was held that the identification of the accused by prosecutrix was not acceptable in view of
her above admission and as such complicity of accused in offence was not established. Hence the
appellant was held entitled to acquittal.
In State of Karnataka v. Mehaboob? one Usha was married to Venkatesh. Usha who was
residing at Bangalore went to another town to see her ailing father by bus and from bus stand she
took the auto rickshaw being driven by one of the accused persons to go to her father's place in a
colony. Instead of going to the colony the auto rickshaw went to a lonely place where the
prosecutrix was threatened by the accused persons and bodily carried to a ditch in a nala. She was
raped there by five accused persons one after another. It was pleaded that the absence of injuries
either on the accused or on the prosecutrix showed that the prosecutrix did not resist. It was held that
it might be that being frightened she was unnerved or for fear of being assaulted she had not resisted
but the fact there were no injuries either on the prosecutrix or on the accused was no ground or a
reason to hold that no such sexual offence had been committed. So also the absence of injuries is not
1. 1987 Cri. L.J. 971 (S.C).
2. 1997 Cri. L.J. 4078 (S.C).
3. 1987 Cri. L.J. 940 (Karn.).
by itself sufficient to hold that the prosecutrix was a consenting party or that the story of sexual
assault was unreliable.
It was further held that the evidence of the prosecutrix is treated somewhat on the same lines
as the evidence of an accomplice requiring corroboration for variety of reasons. However,
corroboration is not a rule of law but only a matter of prudence.
In Imrat Lai v. State of M.P.,1 it was held that in case of rape on a girl of 12 years the
conviction can be based solely on the evidence of the prosecutrix if her evidence is worthy of
credence. The rule of corroboration is not a rule of law but only a rule of prudence. Where the
testimony of prosecutrix was corroborated by material evidence and the first information report, the
conviction of the accused under Section 376 is justified.
It was held in Gajanand v. State of Gujarat,2 that merely because the prosecutrix was used to
sexual intercourse there can be no presumption of her consent, that is, it cannot be inferred that she
must have given consent to alleged forcible sexual intercourse. Testimony of a witness can be
accepted in part and can be rejected in part to sustain the prosecution story. 3 The accused can be
convicted on the lone testimony of the prosecutrix without corroboration.4
It was held in Dilip v. State of M.P.,5 that where the age of victim of rape is proved to be
below 16 years, it would be futile to suggest in a case of prosecution under Section 376 that the
sexual intercourse was committed with the consent of the girl because consent of a woman below 16
years furnishes no defence. In such a case medical evidence showing that the girl was habituated to
sexual intercourse and that there were no signs of rape would also be of no help if intercourse by the
accused with the girl is proved.6
It was held in State of U.P. v. Munshi,1 that in rape cases the fact that the victim was
previously accustomed to sexual intercourse, is not a determinative question. On the contrary, the
question which is required to be adjudicated is, did the accused commit a rape on the victim on the
occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity
earlier, it did not and cannot in law give licence to any person to rape her. It is the accused, who is
on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual
behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to any one and
every one, because she is not a vulnerable object or prey for being sexually assaulted by anyone and
everyone.
I n Madan Lai v. State of Rajasthan? the accused Madan Lai untied salwar of a girl Shanti
and put off his own payjama also. He spread his knees on the ground and closed the mouth of the
girl with his hand in order to stop her from
1. 1987 Cri. L.J. 557 (M.P.).
2. 1987 Cri. L.J. 374 (Guj).
3. Ibid.; Dilip v. State of M.R, 1987 Cri. L.J. 212 (M.P.).
4. Gajanand v. Slate of Gujarat, 1987 Cri. L.J. 374 (Guj).
5. 1987 Cri. L.J. 212 (M.P.).
6. Ibid.
7. (2009) I Cri. L.J. 393 (S.C).
8. 1987 Cri. L.J. 257 (Rajasthan).
S 375 1 OF OFFENCES AFFFCTING THE HUMAN BODY 509
crying and slept over her in order to commit rape on her. He could not succeed because certain
other persons arrived who pulled him from over the girl while he was sleeping naked below the
waist. It was held that this shows a determined intention on his part to commit rape on her and if the
witnesses had not intervened, he would certainly have committed rape on her and therefore, all
these series of acts performed by the accused with a clear cut, definite and determined intention to
commit rape on the girl clearly amounted to an attempt to commit rape. It was not a case of
outraging the modesty of a girl. It cannot be accepted that if on account of intervention of the
witnesses, the accused was not able to make an attempt to penetrate his penis inside the vagina of
the girl, the accused cannot be held guilty of the offence under Section 376/511, IP. Code.
In., Kumudi Lai v. State of U.P.J on 7-9-95 about 7.00 a.m. Kumari Marri, aged about 14
years had gone to ease herself in a field near her house and while she was so doing, the appellant
pounced upon her, pinned her down on the ground, committed rape and when she started resisting
and raising shouts, strangulated and killed her by tying her salwar around her neck. On hearing her
shouts her father Mihilal (PW-1) and Awadh Ram (PW-2) who had also gone near that field for
answering the call of nature, rushed to that place. It is alleged that they had seen the appellant
committing rape and on seeing them the appellant got up and ran away. They had chased the
appellant but he was able to escape. The trial court convicted him for offences under sections 376
and 302, Indian Penal Code and awarded death penalty which was confirmed by the High Court. It
was held by the Supreme Court that the evidence on record does not justify the reasons given by the
High Court for confirming death sentence. The evidence does not indicate that Marri was taken by
surprise and that the appellant had proceeded upon her and had rendered her helpless. She had
completely removed her salwar which possibly was not necessary if she had merely gone for easing
her self. No human excreta was found from near the place of incident. If she was assaulted in the
manner believed by the High Court then she would have raised cries earlier and not after appellant
started raping her. The post-mortem notes show that she was average built and was thus not a
physically weak young girl. Not only she had removed her salwar but her kurta was also rolled up
to neck and therefore, it was stated by PW-1 and also the investigaing officer that the body of Marri
was nude. The evidence discloses that both PW-1 and PW-2 were at a short distance of 120-150
yards and would not have taken much time in reaching the place of occurrence. They would have
reached before the appellant could have committed rape on an unwilling girl. The circumstances
indicate that probably she was not unwilling initially to allow the appellant to have some liberty
with her. The appellant not being able to resist his urge for sex went ahead in spite of her
unwillingness for sexual intercourse, offered some resistance and started raising shouts at that stage.
In order to prevent her from raising shouts the appellant tied the salwar around her neck which
resulted in strangulation and her death. The Supreme Court, therefore, did not consider it to be a fit
case for imposing the extreme penalty of death sentence. Therefore the death sentence was altered
to imprisonment for life.
In Kuldeep Kumar Mahato v. State of Bihar? the prosecutrix Kiran Kumari and the accused
Kuldeep Kumar Mahato were residents of the same village. While Kiran Kumari was going to
market, the accused met her in the way and
1. A.I.R. 1999 S.C. 1699.
2. A.I.R. 1998 S.C. 2694.
forcibly made Kiran Kumari to sit in a tempo and was taken to another place. The accused was
alleged to have committed sexual intercourse with prosecutrix against her will on the next night.
Prosecutrix was proved to be below 18 years of age on the date of incident. Medical evidence
showed no injuries on person of prosecutrix including her private part. It was held that conduct of
prosecutrix shows that she was a consenting party to sexual intercourse. It was not a case of
prosecutrix that she was put in physical restraint. Therefore conviction of accused for offence under
section 375, was held not to be proper.
376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits
rape shall be punished with imprisonment of either description for a term which shall not be less than seven
years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless
the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or with both :
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,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed ; or
(ii) in the premises of any station house whether or not situated in the police
station to which he is appointed ; or
(iii) on a woman in his custody or in the custody of a police officer subordinate
to him ; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his
custody as such public servant or in the custody of a public servant subordinate to him ; or
(c) being on the management or on the start' of a jail, remand home or other place of custody established
by or under any law for the time being in force or of a women's or children's institution takes advantage of his
official position and commits rape on any inmate of such jail, remand home, place or institution ; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and
commits rape on a woman in that hospital ; or
(e) commits rape on a woman knowing her to be pregnant ; or
(f) commits rape on a woman when she is under twelve years of age ; or
(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 :
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment of cither description for a term of less than ten years.
Explanation 1.—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.
Explanation 2.—"Women's or children's institution" means an institution, whether called an orphanage
or a home for neglected women or children or a widows home or by any other name, which is established and
maintained for the reception and care of women or children.
Explanation 3.—"Hospital" means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or of persons requiring medical
attention or rehabilitation.
COMMENT
It was held in Aman Kumar v. State of Haryana,' that in order to find the accused guilty of an
assault with intent to commit a rape, Court must be satisfiec that the accused, when laid hold of the
prosecutrix, not only desired to gratifj his passion upon her person but that he intended to do so at
all events, and no
1. 2004 Cri. L.J. 1399 (S.C).
withstanding any resistance on her part. The point of distinction between an offence of attempt to
commit rape and to commit indecent assault is that there should be some action on the part of the
accused which Would show that he was just going to have sexual connection with her.
In State of Chhattisgarh v. Derha? the evidence of doctor showed that the injuries suffered
by the victim could not have been self-inflicted. There was blood on her private part, the hymen
was torn and medial side of the labia minora was inflamed. This was even after 4 days of the
incident. The doctor in specific terms had stated that the victim is not habituated to sexual
intercourse. It was held that the mere fact that to a suggestion made in cross- examination that such
injuries could be suffered by the victim by falling on a hard and blunt substance by itself would not
suffice to reject the evidence of victim who had no enmity whatsoever to implicate the accused. The
suggestion which has come in the form of section 313 statement merely says that there was some
enmity between the parents of the accused and that of the victim. Neither the nature nor gravity of
enmity has been stated, therefore the explanation would be of no assistance to the accused to
establish the fact that he has been falsely implicated. It is well settled law that if the Court is
satisfied from the evidence of victim, a conviction can be solely based on such evidence without
looking for further corroboration. Therefore the factum of injury suffered by victim and the opinion
of doctor that such injury could have been caused by sexual intercourse and the victim having not
been habituated to earlier sexual intercourse itself goes to show that the injury suffered by the
victim was one that could have been caused only by an act of rape. Even the identification of the
accused by the victim was not doubtful because he was known to the victim.
As far the delay in filing F.I.R. is concerned it was satisfactorily explained by the mother of
the victim. Father of the victim was out of station on the date of occurrence. The fact that the
accused did not suffer any injury on his private part will also not be of much help to him because he
was medically examined 4 days after the incident. In the circumstances the acquittal of the accused
would be liable to be set aside.
In Swati Lodha v. State of Rajasthan? one Swati Lodha was allegedly raped by one Raj
Kumar. When she threatened to make this incident known to her parents Raj Kumar assured to
marry her but did not do so later on. At times Raj Kumar also told Swati that he was an M.L.A and
thus influential person. When Raj Kumar married with another girl, Swati filed a criminal
complaint against Raj Kumar for offence under section'376. Later on she gave birth to a male child.
There was no medical examination of Swati after the alleged rape and ravishment to show forcible
sexual intercourse or any other injury on her body to show resistance on her part to show rupture or
her heymen. She applied that blood sample of Raj Kumar be taken and tested and compared with
the blood of baby born so as to establish that the sexual intercourse was committed by Raj Kumar
with her, the product of which was the child.
It was held that taking of blood from veins of accused does not amount to compelling an
accused person to be witness against himself. There is no violation of Article 20(3) ol the
Constitution. Giving of blood does not amount to importing of knowledge by the accused. A blood
cannot rje^-cpncealed or
1. 2004 Cri. L.J. 2109 (S.C).

2. 1991 Cri. L.J. 939 (Rajasthan).
change its intrinsic character. A blood sample by itself is not testimony at all being wholly
innocuous. It is only material for comparison, in order to lend assurance to the court that an
inference based on other pieces of evidence is relevant.
State of Haryana v. Prem Chand? is a review petition filed by the State of Haryana against
the judgment of the Supreme Court in Prem Chand v. State of Haryana?
In Prem Chand v. State of Haryana (1989) the Supreme Court had held that keeping in view
the peculiar facts and circumstances of case coupled with condition of girl not calling of minimum
sentence of ten years' R.I. as prescribed by section 376(2) the sub-minimum sentence provided by
proviso would meet the ends of justice.
It was held in State of U.P. v. Pappu? that in a rape case even assuming that the victim was
previously accustomed to sexual intercourse, that is not a determinative question. On the contrary,
the question which was required to be adjudicated was, did the accused commit rape on the victim
on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her
virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused
who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her
sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to any one
and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone
and everyone. The prosecutrix complaining of having been a victim of the offence of rape is not an
accomplice after the crime. There is no rule of law that her testimony cannot be acted without
coixoboration in material particulars. She stands at a higher pedestal than an injured witness. In the
latter case, there is an injury on the physical form, while in the former it is both physical as well as
psychological and emotional. However, if the Court finds it difficult to accept the version of the
prosecutrix on its face value, it may search for evidence, direct or circumstantial which would lend
assurance to her testimony. Assurance, short of corroboration as understood in the context of an
accomplice would do. Thus the finding of the High Court that the girl being of loose morale and
easy virtues, the accused were entitled to acquittal would be indefensible. Therefore the judgment of
the High Court was set aside and the case was remitted to the High Court for fresh hearing.
In Rajendra Datta Zarekar v. State of Goa? accused, Rajendra, an young man aged about 20
years was living in a room near the house of the victim's father. One day victim, Sonia, a girl aged
about six year was playing in courtyard and her elder sister was studying at her home. At about 5
p.m. on the day of incident Pushpa, mother of victim heard cries of her daughter, Sonia from inside
the room of Rajendra. She rushed to the room and found it closed from inside and therefore she
knocked at the door and when Rajendra opened the door she enquired from the accused as to what
he was doing inside the room along with her daughter, he kept quiet. Sonia the victim narrated to
her mother that Rajendra removed her panty and also his own pant and lied down over her and did
some movement on her private part. After sometime when father of victim came both victims
mother and father went to police station. The girl was medically examined. During trial the accused
pleaded that he was falsely implicated.
It was held that rape leaves a permanent scar and has a serious psychological impact on
victim and also her family members. Therefore, no one would normally concoct a story of rape just
to falsely inplicate a person. It was further pointed out that
1. 1990 Cri. L.J. 454 (S.C).

2. 1989 Cri. L.J. 1246 (S.C).
3. 2005 Cri. L.J. 331 (S.C).
4. 2008 I Cri. L.J. 710 (S.C).
S. 376 ] INDIAN PENAL CODE, 1860
rupture of hymen is not essential to constitute rape. Therefore the accused was held liable under
Section 376, I.P.C. for commission of rape.
In State of Rajasthan v. Om Prakash? the prosecutrix aged about 8 years was alleged to be
raped at 9 a.m. The F.I.R. was registered at about 11.30 a.m. next day, no independent witness oth6r
than family members were examined by prosecution, It was held that when such an act is done, the
natural tendency is not to talk about it to others but, to an extent possible, hide it. There was nothing
unnatural for other villagers not visiting the house of parents of victim.
It was held that the assumption that in natural course of events if rape had been committed,
the young child girl and her mother would have shouted so as to collect others and they would have
visited her house, would not be proper. The prosecutrix was unconscious. There was no question of
prosecutrix shouting as assumed by the High Court. The aspect of the non-exarnination of the
persons other than family members of the victim could not be given undue importance without
having regard to contextual facts. The cases involving sexual molestation and assault require a
different approach which a court may adopt in dealing with normal offence under penal laws. There
is nothing on record to substantiate that there were some disputes between the accused and father of
the prosecutrix over exchange of some land and that is the reason for implicating the accused. No
such suggestion was even put during cross-examination of father of prosecutrix. On the facts, it
could not be said that revenge on account of alleged dispute would be taken by the father of the
prosecutrix by foisting on the accused a false case of rape involving his young daughter particularly
in the setting of a village environment.
It was further held that conviction of accused could not be set aside for the non-examination
of independent witnesses and the accused having played with the life of a child does not deserve
any leniency. Sympathy sought for on ground that, incident took place about 13 years back and by
now accused has matured and become 31 years of age and had already undergone nearly 3 years of
sentence would be wholly uncalled for. Therefore, accused was directed to undergo remaining part
of sentence awarded by trial court.
In Bhupinder Sharma v. State of Himachal Pradesh? the victim aged about. 16 years had
gone to Solan to purchase medicines for her ailing grand-father. She had gone to Solan for the first
time and reached the bus stand at about 2 p.m. Thereafter she enquired from a lady about the
location of the medical shop. The lady showed her ignorance. At this time two persons came there
and asked her to accompany them in a three wheeler as both of them were going to the concerned
shop. The victim was taken by two accused to an isolated place in a jungle. The three-wheeler was
sent back with instruction to come back in the evening. After gagging her mouth she was taken to a
house which was below the road. There were four more boys and three of them were identified by
the victim during trial. The fourth one was not tried as there was no adequate evidence against him.
The victim was sexually abused firstly by accused Ashish followed by Sunil and Shanker. The
appellant Bhupinder and Shanker were in the process of taking off their clothes with a view to
perpetuate sexual abuse when the victim managed to escape. When she reached near road she met
Chaman Lai ASI and two others. She described the story to them and they visited the room where
she had been raped but it was found that all the six accused had fled away. All the six accused were
charged and tried for offence under Section 376 read with Section 34 of I.P.C. and Section 342 read
with Section 34 of I.P.C. After trial Bhupinder Singh was punished with imprisonment for 4 years
for offence under Section 376/34 and 2 years for offence ■nder Section 342/34 of I.P.C. All others
were convicted to rigorous imprisonment for
1. 2002 Cri. L.J. 2951 (S.C).
2. 2004 Cri. L.J. 1 (S.C).
7 years for the offence punishable under Sections 376 and 342 of Indian Penal Code. The reason
stated by the Trial Court for awarding less than the minimum sentence prescribed by the Code for
gang rape was that the appellant has not committed actual rape but was waiting for his turn. It was
held by the Supreme Court that the reasons stated by the trial Court was no ground to impose lesser
sentence in case of gang rape. Therefore, the enhancement of sentence by High Court to prescribed
minimum was proper. It was also held that the corroboration of evidence of victim is not necessary
for basing conviction. To insist on corroboration except in the rarest of rare cases is to equate one
who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood.
It would be adding insult to injury to tell a wornan that her claim of rape will not be believed unless
it is corroborated in material particulars as in the case of an accomplice to a crime.
In State of Rajasthan v. Kishanlal,1 on the night of occurrence husband of prosecutrix had
gone to watch Ramlila after bolting the outer doors. Prosecutrix was sleeping with her 5-6 months
old child and her brother-in-law was sleeping in other room along with his wife nearly 20-25 feet
away. In the night, the accused entered her house whom she recognised in the light of the chimney.
On being asked as to why he had come in the night, the accused replied that he had come to have
sexual intercourse with her. When the prosecutrix cried, the accused put a handkerchief in her
mouth. When she continued to cry, the accused had shown her a knife and threatened her that he
will stab her if she makes noise. She also stated that the accused told her that he will give her Rs.
20/- but did not give the money. The accused had sexual intercourse with her. In the mean time her
husband came and asked her as to whether she had called the accused and she replied in negative.
When the accused started running away her husband caught him. The accused was apprehended in
the house but no knife was recovered from him.
It was held that it is surprising that the accused entered the house at night and though the
brother-in-law of prosecutrix and his wife were sleeping only 20-25 feet away, the prosecutrix
could not raise an alarm so as to attract their attention. It is further clear that the prosecutrix was
known to the accused and that is why the first question asked by her was as to why he had come in
the night. To this accused replied that he wanted to have sexual intercourse with her. The accused
offered her Rs. 20/- and also stated that another persons will also pay her the same amount for
having sexual intercourse. This shows that both were quite intimate. The other surprising feature is
that, the husband of the prosecutrix who entered the house during incident did not straight away
chase the accused. He first questioned his wife whether she had called the accused, and only after
her stating that she had not called the accused and that he had forcibly raped her, the husband
started chasing the accused and caught him. This again probabilises the fact that the husband also
had at least some suspicion about the nefarious activities of his wife, otherwise it would be quite
unnatural for a husband asking his wife, even before attempting to catch the accused, as to whether
she had called the accused and whether the accused had sexual intercourse with her consent. All the
more the non-seizure of the knife raises a serious suspicion about the truthfulness of the prosecution
version that the accused had sexual inter-course with the prosecutrix under threat. In the
circumstances the probability of the accused having had sexual intercourse with the prosecutrix
with her consent cannot be ruled out. Therefore, he was held entitled to benefit of doubt and was
acquitted.2
In Kanhai Mishra v. State of Bihar? the accused on 27th July, 1995 at about 5 a.m. went to a co1villager Ram Sunder Jha, the informant and told his daughter
1. 2002 Cri. .L.J. 2963 (S.C).

2. State of Rajasthan v. Kishanlal, 2002 Cri. L.J. 2963 (S.C).
3. 200! Cri. L.J. 1259 (S.C).
Rita Kumari to go with him to the orchard of Shobha Kant Mishra to pluck flowers. Thereafter Rita
went out of the house for plucking flowers followed by the appellant. At 6 a.m. some of the co-
villagers came to the house of the informant, the father of the girl and intimated him that dead body
of his daughter Rita was lying in the jute field of Prabhu Mishra whereupon he along with them and
his family members went there and found his daughter lying on the ground and her red
undergarment removed from one of her legs. It was also noticed that there were white spots
resembling semen around her genital organ and black marks of scratches around both sides of her
neck. The flower basket with flowers was found scattered there and her chappals were seen at some
distance. It was alleged that the appellant accused enticed Rita, committed rape upon her and killed
her by pressing the neck. It was held that non-examination of material witnesses, who first informed
the informant that his daughter was raped and murdered by accused by strangulation and her body
was lying in jute field caused a material discrepancy and infirmities in evidence of witnesses
regarding going of victim and accused towards orchard and plucking flowers there. The
circumstances that accused and victim were last seen together in field plucking flowers was also not
proved. The evidence that accused was seen fleeing away in vicinity of jute field immediately after
S. 376 ] INDIAN PENAL CODE, 1860
alleged occurrence is not reliable. There was no credible evidence that the accused was absconding
from his house and surrendered in court after about a month. The investigating officer also
suppressed the fact that informer went to police station and narrated incident to him at police
station. Therefore the proof of solitary circumstance of giving proposal to victim for going to
orchard for plucking flowers was not sufficient to convict accused in view of laches on the part of
prosecuting agency in conducting investigation and uial. The conviction and sentence awarded
against appellant were, therefore, set aside.
In Visveswaran v. State,1 the victim of rape who was sleeping with her husband and other
relations at the bus stand was picked up by a police constable on the pretext of interrogation and
raped in a hotel room. The victim and witnesses were unable to identify the accused constable. Test
identification parade was also not held. However, the appellant, a police official, was caught from a
room in a hotel. The hotel record showed booking of the room in that hotel by the appellant and also
payment of advance of Rs. 100/-. The appellant could not explain his whereabouts during the time
the offence was committed. He was not co-operative during investigation. He declined to give
sample of his semen. He was having different appearance at the time of examination of victim and
her husband in Court. At the time of commission of offence he did not have beard and moustaches.
However, when victim and her husband were examined in Court, he had beard and moustaches and
was wearing dhoti. The testimony of the victim and her husband was straightforward. The
witnesses, immediately after the commission of offence, had named the appellant.
It was held that these circumstances unerringly point out the accusing finger towards the
appellant beyond any reasonable doubt. It could not be said that identity of the accused had not been
proved despite the fact that victim was unable to identify the accused in Court and there was
omission to hold test identification parade.
It was further observed that the approach required to be adopted by Courts in rape cases has
to be different. The cases are required to be dealt with utmost sensitivity. Courts have to show
greater responsibility when trying an accused on charge of rape. In such cases, the broader
1. 2003 Cri. L.J. 2548 (S.C).

probabilities are required to be examined and ihc Courts are not to get swayed by minor
contradictions or insignificant discrepancies which are not of substantial character. The evidence is
required to be appreciated having regard to the background of the entire case and not in isolation.
The ground realities are to be kept in view. It is also required to be kept in view that every defective
investigation need not necessarily result in the acquittal. In defective investigation, the only
requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit
the accused solely as a result of defective investigation. Any deficiency or irregularity in
investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise
proved. Therefore the appellant was rightly convicted for offence under section 376, Indian Penal
Code.
In Golakonda Venkateswara Rao v. State of A.P.J the appellant was a neighbour of the
deceased minor girl, Devanaboyina Lakshmi, aged about 15-16 years. The appellant accosted the
deceased about two months prior to the incident on 14-7-1996. The deceased went to graze goats at
water canal bund. The appellant noted the girl going towards the water canal bund, followed her,
and began to talk with her with an evil eye. This fact was witnessed by PW-5 Sala Ankamma. It is
slated that having found no one present around the area, the appellant caught the deceased, dragged
her to a nearby unused shed, gagged her mouth and committed rape on her against her will. It is also
alleged that all the resistance put up by the victim girl went in vain and the accused overpowered
the girl. It is further disclosed that in the process of struggle, upper and inner langa of the deceased
were torn. When the appellant left the deceased alone and was about lo part from the place of
occurrence, the deceased allegedly was said to have told the appellant that she would bring the
matter to the notice of villagers and police. Being frightened by this disclosure, the appellant chased
her, caught her and threw her into the well situated nearby. The appellant also kept a stone in the
well so as to prevent the body from floating and also put some caveltry creepers, with an intention
to hide the offence. The appellant buried the torn clothes of the deceased. When the girl did not
return by the evening her kith and kin started search and not finding the girl PW-1 and the foster
father of the girl PW-2 came to know through PW-5 Sala Ankamma that two months before she had
seen the appellant talking with the deceased. PW-1 then approached the village elders and on being
asked by the elders, the appellant allegedly confessed the guilt of committing rape and throwing the
girl into the well. Thereafter PW-1 lodged First Information Report.
It was held that the evidence of last seen together cannot be discarded merely on grounds that
there is discrepancy in statement of witness about day and time stated by her in First Information
Report. Witness being rustic village woman cannot be expected to have remembered the incident
that had taken place after a lapse of four years with mathematical precision. However, the witness
reaffirmed that they were talking to each other sitting at the place. The fact remains that the said
witness last saw the deceased and the appellant together. This fact has not been demolished and
remains unimpeached. So it can be relied on to base conviction.
It was further pointed out that skeleton remains of deceased were recovered from a well and
articles were recovered from a place dug out on being pointed oul by the accused appellant. The
I . 2003 Cri. L.I. 373) (S.C).

recovery was made on the basis of voluntary disclosure statement of accused. Articles were not
recovered from a place where public have a free access but found from inside a well and unearthed
only after the place was pointed out by the appellant. There is no apprehension that material
exhibits were planted to rope in the appellant with the crime. Articles recovered were fixed by lac
seal. Non production of hairpins and bangles before the Court would not by itself disclose
tampering of evidence. The identity of the deceased and the age was established with the aid of
medical evidence. Therefore the conviction of accused appellant for offence of rape under section
376, Indian Penal Code was proper.'
In Dildar Singh v. State of Punjab,2 the appellant was a drawing teacher in a Government
School where the prosecutrix was studying in Class VIII. On 6th March, 1987 when the prosecutrix
had gone to the school for coaching in science practical, the appellant took her to a class room and
raped her but she did not disclose this fact to any one. Later when she experienced some pain in her
abdomen she was attended by her mother who found thai the prosecutrix was pregnant. On further
inquiry the girl revealed the incident of rape to her mother. Her mother informed her father who was
in service. After her father came to the village the matter was reported to police. The girl was below
16 years of age\ The accused/appellant was tried for offences under Section 376 and 506 IPC and
convicted. The appellant was sentenced to 7 years rigorous imprisonment for offence under Section
376 and imprisonment for 2 years for offence under Section 506 IPC. In appeal the conviction and
sentence was upheld by the High Court. The defence plea for reduction of sentence was rejected by
the Supreme Court and it was held that the fact that a long passage of time has elapsed after the
incident and the teacher has a family to maintain and also that the prosecutrix has since got married
cannot be treated as mitigating circumstances to reduce sentence. It was further observed that the
appellant was a teacher on whom rests the responsibility of building character of students, if he is
found guilty of such a heinous offence, no mitigating circumstance can be pleaded to reduce the
sentence.
In Vimal Suresh Kamble v. Chaluverapinake Apai S.P.,3 the appellant was working as a
domestic servant in five flats including that of respondent in Vasant Vihar, Thane, Mumbai. The flat
of respondent was located at second floor. The prosecutrix appellant used to clean utensils and
clothes in the flat of respondent. On 17th April, 1992 wife and children of respondent had left for
the village and key of the house was handed over to the maid servant by respondent's wife. On
Sunday 26th April, 1992 she went to the flat of respondent No. 1 and started working. When she
went into the bed room to sweep the room respondent No. 1 switched off the light of the bed room
and caught hold of her. She started shouting but no one came for her rescue and respondent raped
her despite her protests at about 12.30 p.m. Thereafter respondent went in the bathroom for washing
his lungi and underwear. The appellant also wore her underwear and went to the main door. She
went on the ground floor and was sitting there for sometime. She again went upstairs and when an
adjacent neighbour of respondent No. 1 asked her about respondent she again opened the door and
told that respondent was not there. When the neighbour asked her as to what had happened
1. Golakonda Venkateswara Rao v. State, of A.P.. 2003 Cri. L.J. 3731 (S.C).
2. 2006 Cri. L.J. 3914 (S.C).
3. 2003 Cri. L.J. 910 (S.C).
she replied saying that she will tell everything when respondent's wife returned. At about 1.30 p.m.
she again locked the door of flat and went home. Thereafter she took her bath, washed her clothes
and took two sleeping pills and went to sleep. She got up at 5.30 p.m. but did not report the incident
to her husband when he returned home from duty, for fear that he would drive her out. For that
reason she did not go to the police station to report the incident.
On the next day she worked in four flats but she did not report the matter to any one. In the
afternoon for the first time she narrated the incident at about 2.45 p.m. to her sister-in-law and her
brothers Babban (PW-3) and Subhash and one Shiv Sena Leader Dr. Manohar Sawant (PW-4).
Then they came to police station and lodged a report at 3.00 p.m. on 27th April, 1992. Respondent
No. 1 was charged for offences under sections 342 and 376, Indian Penal Code and sections 3(1)
and 3(2) of the SC/ST (Prevention of Atrocities) Act, 1989. It was pleaded by the defence that false
case was set up to extort money from him.
It was held that prosecutrix knew that taking bath would cause disappearance of the evidence
of rape and yet she took a bath as she was feeling dirty. Occurrence took place at about midday. She
had been loitering in locality Cor two hours but she did not narrate the incident to anyone, not even
to her husband in the evening but on the next day afternoon to her sister-in-law and brothers. It is
true that in law conviction of an accused can be based upon the evidence of prosecutrix alone but
that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural
and truthful. The evidence of prosecutrix in this case is not of such quality and there is no other
evidence on record which may even lend some assurance short of corroboration that she is making a
truthful statement. Therefore on an over all appreciation of the evidence of the prosecutrix and her
conduct the court came to the conclusion that the evidence of prosecutrix is not reliable so as to
base the conviction of the accused cm the evidence of prosecutrix alone.1
In State of Chhaitisgarh v. Lekhram,2 respondent accused was working in the house of father
of prosecutrix. Respondent abducted the prosecutrix and committed rape on her. Prosecutrix was a
married girl who had come to her parents house after gauna ceremony. There was no evidence that
she was enticed away from custody of her guardian by respondent on a false plea that he would
marry her. She was proved to be below 16 years of age on the basis of statement of her parents and
entry in school register on the date of occurrence. The Supreme Court held that on facts and
circumstances of the case and having regard to the fact that she lived for sometime with the
respondent in a rented house and was a consenting party respondent accused who remained in
custody for about one and a half year was sentenced for the period already undergone by him.
In Malkhan Singh v. State of Madhya Pradesh? the prosecutrix Km. Lusia a tribal girl was a
school teacher aged about 28 years. On March 4, 1992 she boarded a bus to go to her school of
posting and alighted at about 1 p.m. at a place from where her school was one km. away. She
proceeded on foot to school in village Bagod. On her way she noticed that she was being followed
by three persons. When she further proceeded some distance she suspected that some of them had
come very close to her. She moved to the edge of the path giving way to the persons behind her to
go ahead. But one of them later identified as Maharaj Singh caught hold of her hands from behind.
1. Vimal Suresh Kamble v. Chaluverapinake Apal S.P., 2003 Cri. L.J. 910 (S.C).
2. 2006 Cri. L.J. 2139 (S.C).
3. 2003 Cri. L.J. 3535 (S.C).
The prosecutrix objected and raised an alarm but no one came to her rescue. On the other hand
Malkhan Singh took out a knife and threatened her. The other accused appellant Masub Khan also
look out a knife and threatened her into silence. Two of them dragged her towards the canal where
she was further threatened and made to lie on ground. When again she persisted in raising alarm,
appellant Maharaj Singh placed a Knife on her neck and tried to press her neck. Thereafter the
appellants Masub Khan and Malkhan Singh removed her clothes and Masub Khan was the first
person to sexually assault her followed by Maharaj Singh and Malkhan Singh. Thereafter they left
her giving threats of dire consequences if she reported the matter to police and reminded that she
would meet the same fate as Madam Rekha met. She met Deputy Director Education on 6th March
1992 and after narrating the incident requested for her transfer to some other school. She also
narrated the incident to her colleague Mangal Singh on'March 12, 1992 who in turn reported the
matter to Kaluram who was President of District Teachers Association. On March 14, 1992
Kaluram PW-3 took the prosecutrix to the residence of Superintendent of Police where a written
complaint was handed over. The complaint was forwarded to Kotwali Vidisha where a crime report
was registered. The prosecutrix was then medically examined by Dr. Manju Singhai. Her clothes
were seized and handed over to the police. The relevant papers were sent to concerned police
station and after investigation, the accused/appellants were tried. The prosecution did not examine
Mangal Singh and Mr. Dutta, Deputy Director of Education lo whom she had narrated the incident.
The prosecutrix identified the appellants before the trial court and the accused persons were held
guilty for the offence.
[ S. 376
In appeal the Supreme Court upheld the conviction of appellants and held that as a general rule
the substantive evidence of a witness is the statement made in court. Failure lo hold a test
identification parade would not make inadmissible, the evidence of identification in Court. The
weight to be attached to such identification should be a matter for the courts of fact. In appropriate
cases it may accept the evidence of identification even wilhout insisting on corroboration. In Ihe
present case the crime was perpetrated in broad day light. The prosecutrix had sufficient
opportunity to observe the features of the appellants who raped her one after the other. Before the
rape was committed she was threatened and inlimidated by the appellants. After the rape was
committed she was again threatened and intimidated by them. All this must have taken time. This is
not a case where the identifying witness had only a fleeing glimpse of the appellants in a dark night.
She also had a reason to remember their faces as they had committed a heinous offence and put her
to shame. She had, therefore, abundant opportunity to notice_their features. In fact on account of
her traumatic and tragic experience the faces of the appellants must have got imprinted in her
memory and there was no chance of her making a mistake about their identity. The occurrence took
place on March 4, 1992 and she deposed in Court on March 27, 1992. The prosecutrix is a witness
on whom implicit reliance can be placed and there is no reason why she should falsely identify the
appellants as the perpetrators of the crime if they had not actually committed the offence. Therefore
conviction of the appellants can be based on the identification of accused by prosecutrix in court
even if no identification parade is held. 1 1 . Malkhan Singh v. State of Madhya Pradesh, 2003 Cri.. L.J. 3535
(S.C).
In State of M.P. v. Bala, alias Balaram,1 in case of conviction of accused for rape sentence
was reduced below prescribed minimum without assigning satisfactory reasons. The Supreme Court
held that reduction of sentence to nine and half months was liable to be set aside being below the
prescribed minimum because in its opinion long pendency of trial, offer of rapist to marry victim or
age of offender are not relevant reasons for reduction of sentence below prescribed minimum.
The Supreme Court in Om Prakash v. State of U.P.,2 observed that the Indian women who is
a victim of sexual assault in normal course does not like to disclose such offence even before her
family members much less before public or before police. The Indian women have a tendency to
conceal such offence because it involves her prestige as well as prestige of her family. Only in few
cases, the victim girl, or the family members have a courage to go before the police station and
lodge a case. Therefore, the suggestion given by the defence that the victim has falsely implicated
the accused does not appeal to reason. There was no apparent reason for a married woman to falsely
implicate the accused after, scatting her own prestige and honour. Therefore the plea of false
implication was held not tenable.
It was held in State of M.P. v. Dayal Sahu,3 that once the statement of prosecutrix inspires
confidence and is accepted by Court as such, conviction can be passed only on solitary evidence of
the prosecutrix and no corroboration would be required unless there are compelling reasons which
necessitate the Courts for corroboration of her statement. Corroboration of testimony of prosecutrix
as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the
given facts and circumstances. Non-examination of Doctor who examined her and non-production
of doctor's report would not be fatal to the prosecution case, if the statement of prosecutrix and
other prosecution witnesses inspire confidence.
Section 376(2)(f).—In State of Rajasthan v. Madan Singh,4 a case relating to rape on girl
below 12 years of age, it was held that imposition of sentence below minimum prescribed on the
ground that accused was young and only bread earner of his family is not adequate and special
reason for imposing sentence lesser than the minimum prescribed. Therefore the order reducing
sentence to 7 years rigorous imprisonment was held liable to be set aside.
It was also observed that the pleasure of punishment in a case of rape cannot depend upon the
social status of the victim or the accused. It must depend upon the conduct of the accused, the state
and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence
upon women need to be severely dealt with. The socio-economic status, religion, race, caste or
creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of
society and deterring the criminal is the avowed object of law and that is required to be achieved by
imposing an appropriate sentence.
Rape on Pregnant Woman.—The Supreme Court in Om Prakash v. State of Uttar Pradesh?
observed that for punishing an accused by application of Section 376(2)(e) the prosecution has to
establish that the accused knew that the victim was pregnant because it is for this reason that
stringent punishment is prescribed for offence under Section 376(2)(e). In this case there was no
such evidence. The Trial Court has only come to conclusion that there was "full possibility" of the
accused knowing that the woman was pregnant. It was held that there is a gulf of difference
between possibility and certainty. What is needed under this Section is "certainty of knowledge and
not merely" possibility of knowledge. "Where a case relates to one where because of the serious
1. 2005 Cri. L.J. 4375 (S.C).
2. 2006 Cri. L.J. 2913 (S.C).
3. 2005 Cri. L.J. 4375 (S.C).
4. 2008 II Cri. L.J. 1939 (S.C).
5. 2006 Cri. L.J. 2913 (S.C).
nature of the offence, as statutorily prescribed, more stringent sentence is provided, it must be
established and not a possibility is to be inferred. The language of Section 376 (2)(e) is clear. It
requires prosecution to establish that the accused knew her to be pregnant. This is clear from the use
of expression "knowing her to be pregnant". On this criteria the judgment of the courts below are
unsustainable. However, minimum sentence prescribed under Section 376(1) IP. Code is clearly
applicable. Therefore, the sentence of imprisonment was reduced from 10 years to 7 years.
Gang rape.—In Santosh Kumar v. State of M.P.,1 the prosecutrix Halki Bai had been deserted
by her husband. One day in order to maintain herself she came in search of work to Silvani by bus
and reached at about 10 p.m. On 20-05-1985. When she was trying to get down from the bus,
Munim Misra, conductor of the bus told her that she may sleep in the bus in night and may go in the
morning to search work. She slept on the rear seat of the bus. At about mid night when all the shops
at the bus stand had closed the driver of the bus Santosh Kumar, the appellant pressed her breast
and started removing her dhoti which she was wearing. When she tried to raise alarm Munim Misra
caught hold her hands and gagged her and then Santosh Kumar ravished her. Thereafter Santosh
caught hold her and Munim Misra ravished her. Hearing her alarm three constables who weie on
petrol duty and some others came near the bus, but both the accused managed to run away. After
investigation both the accused Santosh Kumar and Munim Misra were tried and'convicted. The
prosecutrix was medically examined at about 2.00 a.m. on 21-5-1985. No injuries were found on
private parts of her body. Dismissing the appeal the Supreme Court held that absence of injury on
private parts of prosecutrix is not a ground to hold that no rape was committed upon her since
victim was a married and grown up lady. The deposition of prosecutrix and evidence of witnesses
including the two police constables and other witnesses was sufficient enough to justify conviction
of the appellant. The defence version that they were falsely implicated on ground of non-payment
of 'hafta' was not found tenable. Hence the conviction of accused persons was found proper.
In Priya Patel v. State of M.P.,2 the prosecutrix was returning by Utkal Express after
attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel
husband of the accused appellant met her at railway station and told her that her father has asked
him to pick up from the railway station. Since the prosecutrix was suffering from fever, she
accompanied Bhanu Pratap Patel to his house. There he committed rape on her. When Commission
of rape was going his wife Priya Patel, the present appellant reached there. The prosecutrix
requested the appellant to save her. Instead of saving her the appellant slapped her, closed the door
of the house and left the place of incident. A report was lodged and after investigation Bhanupratap
was charged under Section 323 and 376, whereas the appellant was charged under Section 323 and
376(2)(g) IPC.
The Supreme Court held that a woman cannot be prosecuted for gang rape. The Court held
that Section 376(2)(g) provides that whoever commits gang rape shall be punished. 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 sub-section (2) of Section 376. Since a woman cannot commit rape, therefore she
cannot be guilty to commit gang rape as well. The explanation is only a deeming provision. By
operation of 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 common intention has committed
rape. The sine qua non for bringing in application of Section 34 IPC is that the act must
1. 2006 Cri. L.J. 4594 (S.C).
2. 2006 Cri. L.J. 3627 (S.C).
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 and therefore appellant accused cannot be prosecuted for alleged commission of the
offence punishable under Section 376(2)(g).
In State of Rajasthan v. Hanif Khan and Another,1 accused persons, allegedly gang raped the
victim and threw her into a pit when they found her dead. Eye-witness wife of accused revealed the
incident but her evidence was discarded by the High Court without any discussion. The complainant
father of victim was not an eye-witness. It was held that the fact that complainant had not indicated
in complaint as to what said eye-witness told him cannot be a ground to discard her evidence. The
reasoning of High Court was wrong and showed total non-application of mind. Therefore, acquittal
of accused was held to be improper.
Submission Sentence.—Explaining the meaning of the word 'conduct' as used in Prem Chand
v. State of Haryana (1989) the Supreme Court made it clear that the factors like the character or
reputation of the victim of rape are wholly alien to the very scope and object of section 376 and can
never serve either as mitigating or extenuating circumstances for imposing the sub-minimum
sentence with the aid of proviso to section 376(2). It was held in the review petition (1990) that the
Supreme Court in 1989 case had not expressed any view that character, reputation or status of a
raped victim is a relevant factor for consideration by the Court while awarding the sentence to
rapist. It was further held that the Supreme Court in 1989 case had used the expression in the
lexigraphical meaning for the limited purpose of showing as to how the victim had behaved or
conducted herself in not telling anyone for about 5 days about the sexual assault perpetrated on her.
[ S. 376
It was held in State of M.P. v. Babtdal,2 that in case of conviction of accused under Section 376,
I.P.C. for imposition of sentence less than the minimum prescribed recording of "adequate" and
"special" reasons is a sine qua non. The reason that the accused was illiterate agriculturist" from rural
area can neither be said to be special nor adequate for reducing sentence to period already
undergone which was only two months and three days. Therefore, sentence was set aside. The
Supreme Court further remarked that undeserved indulgence or liberal attitude in not awarding
adequate sentence was not proper.
It was held in State of Karnataka v. Raju,3 that in case of rape on a 10 years old child, the
imposition of only 3-VS years imprisonment on the accused which is less than the prescribed
minimum, on the ground that he is an illiterate and rustic boy of 18 years is improper and
impermissible in the absence of any reason which could have been treated as "special" and
"adequate reason". The measure of punishment in case of rape cannot depend upon social status of
the victim or the accused. It must depend upon the conduct of the accused, the state and age of
sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need
to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or
the victim are irrelevant consideration in sentencing policy. Protection of society and deterring the
criminal is avowed object of law that is required to be achieved by imposing an appropriate
sentence. There are no extenuating or mitigating circumstances available on the record in this case
which may justify imposition of a sentence less than the prescribed minimum on the respondent. To
show mercy in the case of such a heinous crime would be a travesty of justice and the place for
leniency is wholly misplaced.
In State of Maharashtra v. Abdul Hafiz Farqki,4 the offence of rape was alleged to have been
committed by eight persons and that too twice and that accused had pushed prosecutrix out of
running train after giving kicks. In the first information report given by PW-1 Rukmani her version
was that Kesarbai was taken into latrine of the compartment and therein the accused had committed
rape on her. In her evidence before the court she changed her version and she and Kesarbai both stated that
1. (2009) 2 Cri. L.J. 1765 (S.C).

2. 2008 I Cri. L.J. 714 (S.C).
3. 2007 IV Cri. L.J. 4700 (S.C).
4. AIR 1998 S.C. 2382.
rape was committed on her not inside the latrine but inside the compartment on the floor in between two berths.
Further according to the evidence of PW-1 after the accused had committed rape on Kesarbai they had pushed
her giving kicks upto the door of the compartment and then had thrown her out of the compartment when the
train was passing through Wardha railway yards and was only a short distance away from the station. Kesarbai
has also stated that she was pushed out of the running train. It was held that if really 8 persons committed rape
on Kesarbai and that too twice and pushed her out of the running train after giving kicks then some injuries
would have been found on her person. But except for a small incised wound on her right hand and some minor
superficial abrasions no other injury was found on her person. There was no evidence that prosecutrix raised
shouts while accused were taking her forcibly to railway yard. Therefore there is possibility of prosecutrix going
with the accused willingly and with ulterior motive both of them had falsely involved the accused. Considering
the infirmities in the prosecution evidence, acquittal of accused by the High Court requires no interference.
Conviction based on circumstantial evidence.—In State of U.P. v. Desk Raj? on 21- 2-1979 the
prosecutrix aged about 10 years was missing from her home. Since she did not return, her father, Braj Lai made
an abortive search for her and thereafter on 22-2-79 at about 8.15 filed an FIR. The prosecution examined eight
witnesses and mainly relied on PWs 2, 5, 6 and 7 who had last seen the accused with the victim. Doctor who
conducted post-mortem was examined. PW-1 Braj Lai who lodged FIR was also examined. The witnesses stated
that they had seen the accused with the girl going towards orchard field and later dead body of victim was
recovered from orchard field. Evidence of last seen withstood lengthy cross- examination. While setting aside
the acquittal of the accused the Supreme Court held that injuries described on the body of deceased by the
doctor clearly suggested that victim girl struggled and resisted attempt of rape. Accused could not explain
scratch marks on his face. Although it was a case of last seen and as such was based on circumstantial evidence
but the Court held that the circumstances clearly point to guilt of the accused. The conviction of accused under
Sections 302/376 was held to be proper and hence the acquittal order was set aside.
Quantum of punishment.—In State of Karnataka v. Puttaraja? accused was held guilty by trial Court
for having raped a woman in advance stage of pregnancy. The trial Court imposed a sentence of 5 years
imprisonment. In appeal the High Court reduced the sentence to period already undergone which was 96 days
only, merely for reasons that the accused is a coolie, agriculturist, young man aged 22 years and occurrence
having taken place long back in the year 1985. It was held by the Supreme Court that the sentence imposed by
High Court was not only unjustified but highly disproportionate. The reasons stated by High Court cannot be
said to be adequate and special reasons for reducing sentence to below prescribed minimum. In the opinion of
the Supreme Court this was a case where there was no scope for awarding sentence lesser than the prescribed
minimum and it should have been the highest prescribed. The Supreme Court restored the sentence of 5 years
awarded by the lower Court as no appeal was preferred by the State against award of sentence. The Supreme
Court further held that leniency in matters involving sexual offences is not only undesirable but also against
public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in
such matters would be really a case of misplaced sympathy. In this case the acts which led to the conviction of
the accused are not only shocking but outrageous in their contours.
^ It was held in State of Madhya Pradesh v. Munna Choubey? that both in cases of sub-sections (1) and (2) of
Section 376 the Court has the discretion to impose a sentence of imprisonment less than the prescribed
minimum for adequate and special reasons. If. the Court does not mention such reasons in the judgment there is
no scope for awarding a sentence lesser than the prescribed minimum. It is a statutory requirement that the Court
1. 2006 Cri. L.J. 2108

(S.C).
2. 2004 Cri. L.J. 579
(S.C).
520 i S. 376
has to record 'adequate and special reasons' in the judgment and not fanciful reasons which would permit the
Court to impose a sentence less than the prescribed minimum. What is 'adequate' and 'special' would depend
upon several factors and no strait jacket formula can be indicated. This statutory mandate regarding recording
reasons for a departure from minimum prescribed sentence is equally applicable to the High Court. The only
reason indicated by the High Court in this case is that the accused belonged to rural area. The same can by no
stretch of imagination be considered either adequate or special. The requirement in law is cumulative.
The Supreme Court also observed that rape is an offence affecting the human body as it appears in
Chapter XVI of the I.P.C. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment)
Act, 1983 and several new sections were introduced prescribing minimum sentence. These sweeping changes
reflect the legislative intent to curb with iron hand the offence of rape which affects the dignity of a woman. The
physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted
is not merely physical injury but the deep sense of some deathless shame.
It was held in State of Punjab v. Rakesh Kumar,11 that where a minimum sentence is prescribed under
Section 376 IP. Code, the Court must record adequate and special reasons for awarding punishment below
prescribed minimum. This applies even to Appellate Court. Further the fact that the accused belonged to rural
areas by no stretch of imagination can be considered either adequate or special reason for imposing punishment
below prescribed minimum. So also the fact that the accused and victim had love affair is no ground to reduce
minimum sentence of 7 years R.I. to period already undergone by the accused. This is more so when the victim
was below 16 years of age.
It was held in State of Madhya Pradesh v. Santosh Kumar,12 that in order to exercise the discretion of
reducing the sentence from prescribed statutory minimum the statutory requirement is that the Court has to
record adequate and special reasons in the judgment and not fanciful reasons which would permit the court to
impose a sentence less than the prescribed minimum. The reason has to be not only adequate but also special.
What is adequate and special would depend upon several factors and no strait jacket formula can be indicated. In
this case the accused was found guilty of offence under Section 376 (2)(f) for subjecting six year old child to
sexual abuse, the only reason indicated by High Court for imposing less than the minimum sentence is young
age of the accused and the fact that he belongs to Scheduled Tribe. The Supreme Court held that the said reasons
cannot be considered to be either adequate or special. More so when victim is under 12 years of age i.e., only of
6 years.
In State of Himachal Pradesh v. Asha Ram? the respondent-accused was married to one Kalawati. They
had three daughters and two sons. The accused and his wife Pw-3 had strained relations and were living
separately. One daughter and two sons were living with mother and two daughters were living with accused, the
father. In the intervening night of 23/24 August, 1988 the accused returned home at about 12.30 a.m. and went to
the room where his daughters Km. Uma and Km. Seema were sleeping. He asked his daughter Seema to serve
dinner. When she brought the food to the room of the accused he bolted the door of his room from inside and
after switching off the light asked Seema to sleep in the same room. He then forcibly made Km. Seema to lie on
the bed and after untying the waist band of her salwar started to commit rape on her. The prosecutrix pleaded
with the accused that she is his daughter but he turned a deaf ear and forcibly committed sexual intercourse with
her. When she tried to raise cries, her mouth was gagged by the accused with a piece of cloth. Later when she
came out of her father's room she narrated the entire incident to her sister Uma. On the following morning they
went to their mother to inform her about the occurrence. Later, the prosecutrix Km. Seema accompanied by her
mother went to the police station and on the basis of her statement F.I.R. was lodged under Section 376 I.P.C.
The Trial Court found the respondent Asha Ram guilty under Section 376 I.P.C. and sentenced him to
suffer 5 years rigorous imprisonment and a fine of Rs. 1000.00 and in default 3 months rigorous imprisonment.
On appeal the High Court acquitted the accused hence the State of Himachal Pradesh preferred appeal by special
leave to the Supreme Court. Sentence was enhanced by the Supreme Court from 5 years rigorous imprisonment
2. 2006 Cri. L.J. 3636
(S.C).
3. (2006) Cri. L.J. 139
to life imprisonment and fine amount of Rs. 1000.00 enhanced to Rs. 25000.00 because accused father raped his
own minor daughter and thus offence became more grave and rarest of rare by betraying trust and taking undue
advantage of trust reposed in him by daughter, serving food at odd hours of 12.30 a.m. The accused ravished the
chastity of his minor daughter, jeopardised her future prospect of getting married, enjoying marital and conjugal
life has been totally devastated. The prosecutrix carries an indelible social stigma on her head and deathless
shame as long as she lives.
It was further pointed out that both daughters despite of strained relations between their mother and
father were happily staying with accused father. There was no rhyme or reasons as to why daughter should
depose falsely against any person of rape, much less against h5r father, sacrificing thereby her chastity and also
expose entire family to shame and at the risk of condemnation and ostracization by society. For the same reason
their mother also would not go to the extent of inventing story of sexual assault of her own daughter and tutor
her to narrate story of sexual assault against her husband and father of girl. Testimony of prosecutrix well
corroborated by testimony of mother and sisters and also by medical evidence inspires confidence and therefore
conviction based on her testimony cannot be interfered with.
In State of Madhya Pradesh v. Balu,1 when an young girl named Kusum Bai (Pw-2) aged about 13 years
was going to work near a deserted field, the appellant/accused dragged her and committed rape on her
consequent to which her cloth as well as respondent's underwear were blood-stained. The victim stated before
11(2009) I Cri. L. J. 396 S.C.

12(2009) I Cri. L. J. 396 S.C.
521 i S. 376
the court that while committing rape the accused had put a towel in her mouth so that she could not shout. The
victim had complained about the incident to her father Pw-4 and mother Pw-3 who proceeded along with the
victim to police station and a complaint was lodged with the investigating officer Pw-5 who recorded the
complaint and sent the clothes of victim for chemical examination and also the girl for medical examination. The
accused was arrested the very next day and his blood-stained underwear was also recovered and sent for
chemical examination. The girl was medically examined by Dr. Indira Gupta (Pw-6) who opined that the victim
was subjected to sexual intercourse within a period of 24 hours before her examination. Pw-1 Dr. K.L, Wade
who examined the victim with reference to her age after perusing her x-ray opined that she was about 13 years
old but her age may vary upto 3 years.
During trial the defence challenged the age of the victim but the court after considering material on
record and other evidence held that the victim was less than 16 years of age. The Court also negatived the
contention of accused about the consent of victim and convicted the accused under Section 376 I.P.C. and
sentenced him to 7 years' rigorous imprisonment and a fine of Rs. 1,000/-.
In appeal the High Court by the impugned order reduced the sentence to period already undergone which
was about 10 months. The state preferred this appeal for enhancement of sentence. The defence had first taken
the stand of consent of victim and later of animosity between the accused and victim's family. Neither of the two
stands were acceptable to the Court because the Supreme Court held that two self contradictory stands were not
acceptable and the conviction was proper.
The High Court had reduced the sentence below minimum prescribed on the ground that accused was 17
years old at the time of incident and was an illiterate villager coming from a rural area. It was held by the
Supreme Court that the said reasons are neither adequate nor special as contemplated under Section 376, I.P.C.
to justify reduction of sentence below prescribed minimum mandatory sentence and the sentence awarded is
ridiculously low and not commensurate with gravity of the crime. Therefore sentence of 7 years' R.I. was
restored.
1. 2005 Cri. L.J. 335 (S.C).

S. 376 ] 522
In State of Himachal Pradesh v. Prem Singh? accused, a teacher was alleged to have sexually ravished
prosecutrix and had outraged modesty of not only prosecutrix but of several other girl students of school. The
accused was tried for offences under Sections 376, 354 and 506 IP. Code but on reading of evidence of
prosecutrix was not found guilty of rape. It was held that delay in filing F.I.R. in a case of sexual assault, cannot
be equated with the case involving other offences. There are several factors which weigh in the mind of family
members before coming to the police station to lodge a complaint in sexual assault. In a tradition bound society
prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case
merely on the ground that there is some delay in lodging the F.I.R.
In Dinesh v. State of Rajasthan? the accused was found guilty of rape on a minor girl of about 8 years
and sentence of life imprisonment was awarded by Trial Court and High Court by applying Section 3(2)(v) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In view of the finding that Section
3(2)(v) of the Act of 1989 is not applicable sentence provided in Section 376(2)(f) does not per se become life
sentence. Hence sentence was reduced by the Supreme Court to ten years with a fine of Rs. 2000/- and in default
to further suffer one year simple imprisonment.
Conviction based on testimony of prosecutrix.—In State of Tamil Nadu v. Ravi? on 23-10-1989 at about
3.30 p.m., Arthi (victim girl) aged about 5 years was going to her aunt's house. On the way accused accosted and
took her to his own house stating that they would watch TV.. There were two other persons watching TV. in the
front room. The accused took her to the bed room of his house and after removing her underwear and his pant
placed her on his lap and pressed his male organ on her female organ. She cried in pain. On hearing her cry two
persons who were watching TV. in the front room of the house came there and scolded the accused. At about 4
p.m. she came running to her house and informed her mother about the incident. PW-1 the mother of victim girl
removed all the clothes of PW-2 which contained blood stains. She also washed her clothes and gave a bath to
her daughter with the help of PW-8 and 9. After arrival of her father the victim was taken to Government
hospital wherefrom she was referred to children hospital. She was examined by the doctor in charge (PW-6) of
Government hospital who stated in his report that the girl was conscious, there were no blood stains on her dress
and no external injuries and also no injuries on her female organ but hymen was ruptured and there were no
fresh bleedings from the female organ.
The next day the accused was examined by PW-5, who found the following injuries :
(1) There were no blood stains both on the top and middle portion of the brief of the accused.
(2) His penis was 3 inches in length and his urinary opening was normal and there were no
external injuries.
(3) There was cut wound at the bottom portion of his penis. When pressed at the place of this
cut wound bloodstain was there. There was no sign of fresh semen.
It was held by the Supreme Court that the statement of prosecutrix girl of 5 years is well corroborated by
witness who was at the place of incident. Though doctor who examined prosecutrix stated about non-presence of
blood-stains on her vaginal part and on her clothes, it was categorical statement of mother of prosecutrix that she
was given both and her clothes were washed before taking her to doctor.
It was further observed that doctor having recorded that hymen of vagina was torn was not justified in
giving the opinion that male organ would not have penetrated into young girl's vagina. Doctor who examined
accused finding out wound at bottom of his penis and that when pressed at cut wound he found bloodstains
which was possible when penis was forced into vagina. Doctor further opined that his penis was well developed
and he possessed virility.
Therefore in view of the fact that the testimony oi" PW-2 the prosecutrix was well
1. (2009) I Cri. L.J. 786
(S.C).
2. 2006 Cri. L.J. 1679
(S.C).
corroborated by the evidence of PWs l, 3, 5, 6, 7, 8 and 9 and ocular evidence of witnesses is also
well corroborated with medical evidence. Thus, the High Court committed grave miscarriage of
justice in recording acquittal by reversing the conviction recorded by Trial Court. The order of High
Court was set aside and conviction recorded by the Trial Court was restored. The accused Ravi was
taken back lo custody to serve out the remaining pari of his sentence of 7 years awarded by the Trial
Court.'
Attempt to commit rape.—In Koppula Venkat Rao v. Slate of Andhra Pradesh? the prosecutrix
was returning home after seeing movie during late night on 10-6-1991, that appellant/accused
invited the victim girl to board his bicycle and the victim girl agreed to accompany him and sal on
his bicycle. The accused rode the bicycle at high speed and reached near a cattle shed, stopped the
bicycle, dragged the victim by using criminal force into the cattle shed took out her sari, and got on
top of her before actual intercourse ejaculated. The accused left the victim on hearing some sound
and went away along with his bicycle. In this case sexual connection i.e., intercourse has.not been
established. The Trial Court convicted the accused guilty of ihe offence ol" rape which was
maintained by the High Court. The Supreme Court held that on consideration of the evidence of the
prosecutrix it is clear thai the commission of rape has not been established. However, the evidence
is sufficient lo prove that attempt to commit rape was made. That being the position, conviction was
altered from section 376 of I.P.C. lo section 376/511 of I.P.C.
It was held that in order to find an accused guilty of an attempt with intent to commit rape,
Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to
gratify his passion upon her person, bul thai he intended to do so at all events and notwithstanding
any resistance on her part. Indecent assaults arc often magnified into attempts at rape. In order to
come to a conclusion that the conduct of the accused was indicative of a determination lo gratify his
passion at all events, and inspite of all resistance, materials must exist. Surrounding circumstances
many times throw beacon light on that aspect. The sine qua nan of the offence of rape is penetration,
and not ejaculation. Ejaculation without penetration constitutes an attempt to commit 'rape' and not
actual rape. Definition of 'rape' as contained in section 375 of I.P.C. refers to 'sexual intercourse' and
the explanation appended to Iho section provides that penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape. Intercourse means sexual connection.
Rape and murder.—In Bishnu Prasad Sinha v. State of Assam? victim of incident, a minor 7-8
years old girl was sleeping with her family in waiting room of travel agency. Night watchmen of
waiting room and handyman of another bus allegedly committed rape on girl and also killer her. The
dead body of the girl was recovered from a septic lank. Watchman made a judicial confession about
involvement of both of them and the confession was, not retracted. Handyman could not explain
injuries on his face, his absence from his bus for about an hour and stains on his undergarments. The
Court held both the accused liable and convicted them under Sections 376, 300 and 34 of Indian
Penal Code as the circumstantial evidence and the above facts laid sufficient corroboration to
1. State of Tamil Nadu v. Ravi. 2006 Cri. L.J. 3305 (S.C).

2. 2004 Cri. L.J. 1804 (S.C).
3. 2007 Cri. L.J. 1145 S.C.
524 OF OFFENCES AFFECTING THE HUMAN BODY [ S. 376-B
judicial confession made by the accused.

As for the question relating to death penalty awarded by the Courts below is concerned, the
Supreme Court held that the case was based on circumstantial evidence, ordinarily death penalty is
not awarded in such cases. Moreover accused showed his remorse and repentance in his judicial
confession and even in statement under Section 313 Cr. Procedure Code. Hence it is not a case
where extreme penalty of death should be imposed. Hence death penally was converted into life
imprisonment.
In Amn't Singh v. State of Punjab.1 the deceased Raj Preet Kaur, a girl, student of Hnd standard
has gone to the house of her classmate Amarpreet Kaur, daughter of Gurbax Singh, a cousin of the
complainant. After meeting her classmate she left for her own house and was to some extent
accompanied by Amarpreet. On the way Amarpreet left for her own house. When Raj Preet did not
reach her house, search was carried on. Some persons then found her dead body in the agricultural
field near a neem tree belonging to the appellant situated in front of his house. Some cooten crop
were also found near the dead body. Some dry leaves were found in her hair. In her hand some
streads of human hair were also noticed which was fully smeared with blood. PW-2 disclosed that
he had seen the deceased in the company of appellant at about 5.45 p.m. At that time he was in his
field but he came to know about the incident at about 8 a.m.. the next day. The appellant accused
after being arrested was produced before (lie Magistrate and there he was asked by the police to
give specimen of his hair but he refused.
The evidence shows that the deceased was allured by appellant to accompany him to his own
field which was near his house. Medical evidence showed that death occurred not as a result of
strangulation but because of excessive bleeding from her private part. The appellant accused was
prosecuted for rape and murder and was found guilty of heinous crime of rape of a minor girl and
her death. There was no specific overt act on the part of the accused nor he had premeditation for
commission of offence. Therefore the Supreme Court held that the offence though heinous but it
cannot be said to be rarest of rare case. As such death sentence was altered to life imprisonment.
376-A. Intercourse by a man with his wife during separation.—Whoever, has sexual intercourse with his
own wife, who is living separately from him under a decree of separation or under any custom or usage without
her consent shall be punished with imprisonment of cither description for a term which may extend to two years
and shall, also be liable to fine.
376-B. intercourse by public servant with woman in his custody.—Whoever, being a public servant,
takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public
servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual
intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a
term which may extend (o five years and shall also be liable to fine.
COMMENT
In Oinkar Prasad Verina v. State of Madhya Pradesh,2 the appellant Omkar Prasad Vcrma, a
teacher of Government school was allegedly charged to have committed rape on a student outside
the precincts of the school. He was convicted under Section 376-B by the Courts below. Allowing
the appeal the Supreme Court held that in order to justify conviction under Section 376-B the victim
must have been in the custody of the accused. Though a teacher of Government school is a public
servant but all the students cannot be said to be in the custody of the accused. The expression
1. 2007 Cri. L.J. 298 (S.C).
2. 2007 Cri. L.J. 1831 (S.C).
custody implies guardianship. A custody must be lawful. The same may arise within the provisions
of the statute or actual custody conferred by reason of an order of a court of law or otherwise. Thus,
it further observed that, if a student and a teacher fall in love with each other, the same would not
mean that the teacher has taken undue advantage of his official position. Even then there must be an
inducement or seduction by a public servant st> far as the woman in his custody is concerned.
525 OF OFFENCES AFFECTING THE HUMAN BODY [ S. 376-B
Further, sexual intercourse for the purpose of attracting Section 376-B must take place at a
place where the woman was in custody. In this case the intercourse did not take place within the
precincts of the school. Hence under the circumstances in this case the ingredients of Section 376-B
of the Indian Penal Code are not satisfied and as such the conviction of appellant teacher was not
held proper.
376-C. Intercourse by Superintendent of Jail, remand home, etc.—Whoever, being the superintendent or
manager of a jail, remand home or other place of custody established by or under any law for the time being in
force or of a women's or children's institution takes advantage of his official position and induces or seduces any
female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual
intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a
term which may extend to five years and shall also be liable to fine.
Explanation 1.—"Superintendent" in relation to a jail, remand home or other place of custody or a
women's or children's institution includes a person holding any other office in such jail, remand home, place or
institution by virtue of which he can exercise any authority or control over its inmates.
Explanation 2.—The expression "women's, or children's institution" shall have the same meaning as in
Explanation 2 to sub-section (2) of section 376.
COMMENT
A. a Superintendent of Girls' Hostel commits sexual intercourse in the night with an adult
inmate of the Hostel. Here A will be liable under section 376-C of the Penal Code.
376-D. Intercourse by any member of the management or staff of a hospital with any woman in that
hospital.—Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage
of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not
amounting to the offence of rape, shall be punished with imprisonment of either description for a term which
may extend to five years and shall also be liable to fine.
Explanation.—The expression "hospital" shall have the same meaning as in Explanation 3 to sub-section
(2) of section 376.
OF UNNATURAL OFFENCES
377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence
described in this section.
COMMENTS
This section is intended to punish certain unnatural offences like sodomy, buggery and
bestiality. The offence consists in having carnal knowledge against the order of nature by a person
with a man. or in the same unnatural manner with a woman, or by a man or woman in any manner
with an animal.
______In Fazal Rab Chodhary v. State of Bihar? the accused was charged for
I . 1983 Cr. L.J 632 (S.C).
[ S. 377
committing an unnatural offence upon a young boy. In view of the fact that no force was used, the
sentence of three years imprisonment was reduced to six months. It was held that in judging the
depravity of the action for determining yuantum of sentence, all aspects of the matter having a
bearing on the question of nature of offence must be considered.
In Brother John Antony v. State? the petitioner a sub-warden of a Boarding Home was
alleged to have committed unnatural offence with the inmates. The acts committed by the petitioner
fell in two categories, namely—(1) insertion of the penis into the mouth of the victim boy and doing
the act of incarnal intercourse upto the point of ejaculation of semen into the mouth; and (2)
manipulation and movement of the penis of the petitioner whilst being held by the victim boys in
such a way as lo create an orifice like thing for making the manipulated movements of insertion and
withdrawal upto the point of ejaculation of semen.
It was held that both the above categories of acts fall within sweep of unnatural carnal
offences under section 377. As far the second category is concerned in the process of such
manipulation, the visiting male organ is enveloped at least partially by organism visiled, namely,
the hands which held light the penis. The sexual appetite was thus quenched by the ejaculation of
semen into the hands of the victims.
I . 1992 Cri. L.J. 1352 (Madras).

CHAPTER XVII OF OFFENCES AGAINST
PROPERTY
OF THEFT
378. Theft.—Whoever, intending to take dishonestly any movable property out of the possession of
any person without that person's consent, moves that property in order to such taking, is said or commit
theft.
Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not
the subject of theft ; but it becomes capable of being the subject of theft as soon as it is severed from the
earth.
Explanation 2.—A moving effected by the same act which effects the severance may be a theft
Explanation 3.—A person is said to cause a thing to move by removing an obstacle which
prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.—A person, who by any means causes any animal to move, is said to move that
animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.—The consent mentioned in the definition may be express or impjied, and may be
given either by the person in possession, or by any person having for that purpose authority either
expressed or implied.
Illustrations
(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's
possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has
committed theft.
(b) A puts a bait for dogs in his pocket, and thus induced Z's dog to follow it. Here, if A's intention be
dishonestly to take the dog out of "L's possession without Z's consent, A has committed theft as soon as
Z's dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order
that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of
the treasure.
(d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the
plate, without Z's consent, A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries
the plate to a gold smith and sells it. Here the plate was not in Z's possession. It could not, therefore, be
taken out of Z's possession, and A has not committed theft, though, he may have committed criminal
breach of trust.
(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z's
possession, and if A dishonestly removes it, A commits theft.
(g) A finds a ring lying in the high road, not in the possession of any person. A, by taking it commits no
theft, though he may commit criminal misappropriation of property.
(h) A se^s a ring belonging to Z lying on a table in Z's house. Not venturing to
misappropriate the ring immediately for fear of search and detection, A hides the ring in a
place where it is highly improbable that it will ever be found by Z, with the intention of
taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the
time of first moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A,
not owing to the jeweller, any debt for which the jeweller might lawfully detain the watch as
a security, enters the shop openly, takes his watch by force out of Z's hand, and carries it
away. Here A, though he may have committed criminal trespass and assault, has not committed
theft, inasmuch as what he did was not done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security
for the debt, and A takes the watch, out of Z's possession, with the intention of depriving Z of the
property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out of Z's possession without Z's consent,
not having paid what he borrowed on the watch, he commits theft, though the watch is his own property
inasmuch as he takes it dishonestly.
. (1) A takes an article belonging to Z out of Z's possession without Z's consent, with the intention of
keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly ; A has
therefore committed theft.
(m) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book
without Z's express consent for the purpose merely of reading it, and with the intention of returning it.
Here, it is probable that A may have conceived that he has Z's implied consent to use Z's book. If this was
A's impression, A has not committed theft.
(n) A asks charity from Z's wife. She gives A money, food and clothes, which A knows to belong to
Z, her husband. Here it is probable that A may conceive that Z's wife is authorised to give away alms. If
this was A's impression. A has not committed theft.
(o) A is the paramour of Z's wife. She gives a valuable property, which A knows to belong to her
husband Z, and to be such property as she has no authority from Z to give. If A takes the property
dishonestly, he commits theft.
(p) A, in good faith, believing property belonging to Z to be A's own property, takes that property
out of B's possession. Here, as A does not take dishonestly, he does not commit
theft.
COMMENT
Ingredients.—The following are essential requirements of theft .*—
(1) dishonest intention to take property;
(2) the property must be movable;
(3) the property should be taken out of the possession of another
person;
(4) the property should be taken without the consent of that person;
and
S. 378 ] OF OFFENCES AGAINST PROPERTY 530
(5) there must be some moving of the property in order to accomplish the taking of it.
(1) Intending to take dishonestly.—Intention is the essence of the offence of theft. Intention
must be dishonest and it must so exist at the time of taking of the property. Since some moving of
the property is essential in order to accomplish taking of it, therefore, the intention to take
dishonestly must exist at the time of moving of the property.1
Such an intention exists when the taker of the property intends to cause wrongful gain to one
person or wrongful loss to another person. It is no't necessary that the taking must cause wrongful
gain to the taker, it would be sufficient if it causes wrongful loss to the owner of the property. 2 It
would be no defence to plead that the accused did not intend to procure personal benefits. For
example, where the accused took complainant's three cows against her will and distributed them
among her creditors, he was guilty of theft. 3 Where the accused took a stick from B's hand to beat
him with it, it was not a case of theft.4
'A' in good faith believing property of 'B' to be his own property takes that property out of B's possession. In this case A does not take dishonestly therefore A
will not be liable for theft. A is entitled to claim benefit of mistake of fact under section 79 of the Indian Penal Code. A in good faith believed property of B to be his own
property. He has not taken that property with dishonest intention but under a mistaken belief thinking it to be his own property.
1. See illustratfdn (h).

2. Madra, A.I.R. 1946 Nag. 326.
3. Madaree Clwwkecdar, (1865) 3 W.R. (Cr.) 2.
4. Bailey, (1872) L.R. I C.C.R. 347.
Taking need not be permanent.—Taking need not be permanent or with an intention to

appropriate the thing taken.1 Theft may be committed without an intention to deprive the owner of
his property permanently. Where A snatched away some books from a boy B. as he came out of
school and told him that they would be returned when he came to his house, A was held guilty of
theft.2. If a person takes away any movable property out of the possession of another person even
though temporarily and with an intention to return it later on, it would amount to theft. In Pyarelal?
the accused, working in a Government office removed a file to his house, made it available to an
outsider and then returned it to the office after two days. He was held guilty of theft. A misplaced a
watch in his house which was found by B. Instead of restoring it forthwith to A, B took the watch
to his place and retained it until he could obtain money from A as a reward for restoration. B would
be liable for theft.
Taking in assertion of a bona fide dispute.—If some property is removed in the assertion of a
contested claim of right, however, ill-founded that claim may be, the removal of the property does
not amount to stealing.4 The dispute as to ownership must be bona fide. This defence will not be
available in cases of mere colourable pretence to obtain or keep possession of property.5
Mistake.—Where a person takes another's property believing under a mistake of fact and in
ignorance of law that he has a right to take it, he is not guilty of theft because there is no dishonest
intention even though he may cause wrongful loss/'
Stealing one's own property.—Illustrations (j) and (k) of this section demonstrate that a
person can be convicted of stealing his own property if he takes it dishonestly from another. Where
a person removes his cattle after attachment from the person^ to whom they have been entrusted
without recourse to the court under whose order the attachment has been made, he will be guilty of
theft.7 Similarly, where the accused took a bundle belonging to himself, which was at the time in
the possession of a police constable, he was guilty of stealing because the constable had special
property in the bundle.8
A gives a piece of cloth to B. a tailor for making a suit for him. On demand B refuses to
handover the stitched suit unless A paid the stitching charges. A looks for the opportunity and takes
away his suit without the knowledge of B. Here A will be guilty of theft because he takes his own
suit without paying the stitching charges.
A hung his umbrella at club counter at 5 p.m. on 29.7.1987 but it was not there when he
wanted to be back home at 9 p.m. He was upset by this loss and decided that he would take away
the umbrella of some one else next day. When he was leaving the club next night, he saw an
umbrella on the hanger and took it away. In fact, the man at the counter had kept A's umbrella on
1. See illustration (1).
2. Naushe All Khan, (1911) 34 All. 89.
3. A.l.R. 1963 S.C. 1094.
4. Alagriswami Tevan, (1904) 28 Mad. 304. —-
5. Arfan All (1916) 44 Cal. 66.
6. Nagappa, (1890) 15 Bom. 344.
7. Rama, A.l.R. 1956 Rang. 190.
8. Shekh Hassan, (1887) Unrep. Cr. C. 343.
the counter on 29.7.1987 while leaving for home, considering that some member had forgotten to
collect back and he had put it upon the hanger next evening. In this case A is neither liable for theft
nor for attempting to commit theft.
In execution proceedings on a money decree against X, Court ordered attachment of
movable property of X. X and A were living in one house. One buffalo of A was standing in
common compound of the house. Bailiff under a mistaken belief attached this buffalo. While
Superdar was taking the buffalo away, A struck the animal with a stick and drove the same away to
his fields. In this case A will be liable for theft because although buffalo belonged to him but at the
relevant point* of time it was in lawful possession of Superdar, to whom the possession was
delivered by the bailiff in execution of order of the Court. Bailiff will not be liable for wrongfully
attaching A's property because he acted in good faith believing himself to be justified by law in
doing the act as the buffalo was standing in the common compound of the house.
A, a collector of coins dishonestly took a fistful of coins from the pocket of a fellow coin-
collector but when he examined them he found that they were his own coins previously stolen from
him. In this case A is liable for committing theft because he has taken those coins from the pocket
of another with dishonest intention. The fact that coins were actually his own which were stolen
some times back was not in the knowledge of A when he took a fist of coins from another's pocket.
At the time when coins were taken by A they were in another's possession and were taken without
his consent.
Cases.—A creditor who takes movable property ,out of his debtor's possession, without his
consent with the intention of coercing him to pay his debt, would be guilty of theft.' In a case an
electric kettle was given to a repairer for repairs, the repairer did not complete the work within the
stipulated time or even within a reasonable time thereafter and the owner, forcibly removed the
kettle from the repairer's shop without payment of the sum demanded by the latter for work already
done to it. Here the owner was not held guilty of theft, as his intention was not to cause wrongful
loss to the repairer or wrongful gain to himself within meaning of section 24 of the Code, but to
recover his property after lapse of a reasonable time. 2 In Hands,3 an 'automatic box' was fixed
against the wall of a public passage and anybody who dropped a penny piece coin into the slit and
pushed in the knob could get a cigarette out of it. The accused dropped into the slit in the box a
brass disc about the size and shape of a penny and thus obtained a cigarette, which he took to the
other accused. It was held that both the accused were guilty of larceny. A was put on trial for
stealing the umbrella belonging to B. A in his defence pleaded that at the time of taking the
umbrella he was intoxicated and erroneously believed that the umbrella was his own. In this case
A's erroneous belief is influenced by intoxication which appears to be voluntary one. Voluntary
intoxication may be pleaded in defence in offences requiring intention to complete them. Since in
theft also dishonest intention to take anothers property is necessary and which is lacking in the
present case, therefore, A will not be liable for theft.
A intending to cause a theft to be committed instigates B to take property belonging to J out of J's
possession. A induces B to believe that the property belongs to A. B takes the property, out of J's
1. Sri Chum Chungo, (1895) 22 Cal. 1017, see also Keseri Chand, A.I.R. 1959 Raj. 497.
2. Judah, (1925) 53 Cal. 174.
3. (1887) 16 Cox. 188.
possession in good faith believing it to be A's property, B will not be guilty because he lacks
dishonest intention to take another's property but A is liable for abetting theft.
(2) Movable Property.—Anything which is permanently attached with the

earth or is permanently fastened with anything which is permanently attached
with the earth is known as immovable property. Therefore, a thing other than
the above is a movable property. Explanations 1 and 2 make it clear that things
attached to the land may become movable property by severance from the earth
and that the act of severance may of itself be theft.' Thus, a thief who severes
and carries away is treated like a person who carries' away thing which had
previously been severed.
A cuts down a tree on B's ground with the intention of dishonestly taking the tree out of B's
possession without B's consent. In this case A is liable for theft under section 379, Indian Penal
Code as the trees have become movable property the moment they were cut down. Taking
dishonestly movable property from another's possesion without his consent constitutes theft.
Therefore A is liable for commiting theft.
Value of property.—It is not necessary that the thing stolen must have some appreciable
value.
Electricity.—Electricity running in electric wire is not movable property and, therefore,
dishonest abstraction of electricity does not amount to an offence of stealing under the Code, 2 but a
charge under section 39 of the Indian Electricity Act, 1910 for theft shall be maintainable.
S. 378 ] OF OFFENCES AGAINST PROPERTY 532
Cases.—Cooking gas passing through the pipeline has been held to be movable property.
Therefore, where the accused consumed gas by introducing another pipe into the entrance pipe so
as, to pass the gas to the burners without passing through the meter and thus avoiding payment to
the company, he was held guilty of larceny.3
Human body whether living or dead (except bodies, or portions thereof, or mummies
preserved in museums or scientific institutions) is not movable property. 4 But the fact of idol being
a juridical person for certain purposes is no bar to its being a movable properly and thus a subject-
matter of theft.5
(3) Taking out of the possession of another person.—The property must
be in the possession of the prosecutor,6 whether he is the owner of it or is in
possession of it in some other manner. Thus, there can be no theft of wild
animals but theft is possible of tamed animals, birds or fishes etc. Illustration
(g) demonstrates that where property dishonestly taken belonged to a person who
was dead, and therefore, in nobody's possession, or where it is lost property
without any apparent possessor, not the offence of theft but of criminal
misappropriation is constituted. A movable property is said to be in the possession
of a person when he is so situated with respect to it that he has the power to
deal with it as owner to the exclusion of all other persons, and when the
circumstances are such that he may be presumed to intend to do so in case ol need.1 It would be sufficient if the property is taken against his wishes from the custody of a
1. See Illustration (a).

2. Avtar Singh, A.I.R. 1965 S.C. 666.
3. White, (1853) 6 Cox. 213.
4. Ramadhin, (1902) 25 All. 129.
5. Ahmed, A.I.R. 1967 Raj. 190.
6. Hossenee v. Raj Krishna, (1873) 20 W.R. (Cr.) 80.
person who has an apparent title, or even colour of right to such property.2 Illustrations (j) and (k) fully demonstrate that mere physical control of the prosecutor over the
thing taken is quite sufficient i.e., the person from whose possession the property is taken may not be the owner and may have his possession either rightful or wrongful.
Even owner of the property may be guilty of committing theft of his own property. For
example the removal of crops standing on land attached and taken possession of by the court under
section 145 of the Cr. P.C. amounts to theft.3
Cases.—In H.J. Ransom v. Triloki Nath? B had taken a bus on hire, purchase system from a
company which had reserved the right of seizing the bus in case of default jn payment of
instalments. The company took possession of the bus by force from the driver of the bus who was
B's servant. It was held that the possession of the driver was possession of the master and the
company was not entitled to recover possession of the bus even though default in payment of
instalment had taken place. The question whether ownership had or had not passed to the purchaser
is wholly immaterial as this section deals with possession and not ownership. Therefore, the agents
of the company who had taken possession of the bus forcibly were liable under this section. So also
where a washerman had hung up certain clothes to dry after washing them at the village tank and
the accused dishonestly took the same away, he was held guilty under this section because the
clothes which were washed and hung up to dry were still in possession of the washerman. 5 There
was a dispute between X and Y about the possession of a fish pond which was in the possession of
Y at the relevant time. Soon after the lower court's decision against Y, X fished in the pond without
permission and took away large quantity of fish. X is not liable for theft because he was mistaken
about the fact that immediately after the decision of the court against Y the title has passed to him.
'A' had taken a bicycle on hire-purchase from a bicycle dealer named 'B' on condition that if
the instalments are not paid regularly 'B.' will be entitled to take back the bicycle. There was default
in payment of the instalments. One day as 'C the servant of 'A', was going on the same bicycle, 'B'
forcibly took possession of it. B will be liable for theft in this case.
(4) Taking without consent.—In order to constitute theft the property must have been taken
without the consent of the person in possession of it. Explanation 5 and illustrations (m) and (n)
makes it clear that the consent may be express or implied, and may be given either by the person in
possession, or by any person having for that purpose authority either express or implied. Consent
obtained by false representation which leads to a misconception of facts will not be a valid
consent.6 Where wood was removed from a forest without payment of the necessary fees, even
though with the consent of the Forest Inspector would amount to stealing because the Inspector was
a Government servant and possession of wood by him was possession of the Government itself and
as such his consent was unauthorised and fraudulent.1
1. Stephen's Digest of Cr. Law. 9th edn., Art. 359.

2. Gangaram Santram, (1884) 9 Bom. 135.
3. Bande MX Shaikh, (1839) 2 Cal. 419.
4. (1942) 17 Luck. 663.
5. Mathi, (1886) Unrep. Cr. C. 314.
6. Parshottam, (1962) 64 Bom. L.R. 788.
' Cases.—In Troylukho Nath Chowdhry,2 A asked B to aid him in committing theft of some
property belonging to B's master C. Here B, with the knowledge and consent of C and for the
purpose of procuring A's punishment aided A in the commission of theft. It was held that A was not
liable for theft because the property removed was taken with the knowledge of the owner but A was
guilty of abetment of theft. In my view decision of the court appears to be erroneous because the
property was taken with the knowledge and consent of C but this fact was not at all known to the
thief i.e. 'A'. Secondly, A has not obtained the consent of C, and he had no information that B has
aided in the commission of theft with the knowledge of his master C. In a similar case A suggested
B, a servant of C a plan for the commission of robbery at the C's shop. B the servant pretending to
agree to his suggestion gave the keys of the shop to A who got duplicate keys made and on a day
arranged with B the accused A unlocked the shop with that key and entered the shop. A was
arrested. B the servant had already informed C, the prosecutrix beforehand about A's plan to enter
the shop on the appointed day. The accused was held guilty of having broken and entered the shop
with intent to steal therein. His conviction was justified in spite of the fact that C knew that the
accused (appellant) had been supplied with means of breaking the lock and entering the room by
her own servant.3
'A' intending to commit theft enters the house of 'B' at night and removes from one of the
rooms a heavy box to the courtyard where he opens it. He does not find in the box anything worth
taking and leaving it there goes away. In this case A will be liable for attempting theft and also for
house trespass under section 442, IP. Code.
(5) Moves that property.—The offence of theft is complete when there is dishonest moving
of the property, The least removal of the thing taken from the place where it was before amounts to
taking though it may not be carried off. It is not necessary that the property should be removed out
of its owner's reach or carried away from the place in which it was found. Explanations 3 and 4
show how 'moving' could be effected in certain cases. Illustrations (b) and (c) elucidate the meaning
of explanation 4. Thus, where a guest took bed-sheets from the room with an intention to steal them
and carried them to the hall but was apprehended before he could get out of the house, he was
guilty of theft.
Cases.—In Venkatasami,4 the accused an employee of the postal department while assisting
in the sorting of letters, secreted two letters with the intention of handing them to delivery peon and
sharing with him the money payable upon them. He was guilty of theft as well as of attempt to
commit dishonest misappropriation of property
In Bisakhi,5 the accused cut the string which fastened a neck ornament to the complainant's
neck and forced the ends of the ornament slightly apart in order to remove the same from her neck
with the result that in ensuing struggle between the accused and the complainant the ornament fell
from her neck and was found on the bed later on. The accused was held guilty of theft as there
1. Haimuinta, (1877)
1 Bom. 610.
2. (1878) 4 Cal. 366.
3. Chandler, (1913) I K.B. 125.
4. (1890) 14 Mad. 229.
5. (1917) P.R. No. 29 of 1917.
has been in the eyes of law sufficient moving of the ornament to constitute theft.
Pulling wool from the bodies of live sheep and lambs amounts to theft under this section. 1 A,
at a railway station inserts counterfeit coins into an automatic machine and causes it to eject railway
tickets which A and his friends B. C, and D make use of. Here A would be guilty of theft because
he has dishonestly extracted tickets worth money value from a machine which was in the possession
of Railway and B. C, and D would be liable under section 411 I.P.C. for receiving stolen property as
they had used the tickets.
Explanations 1 and 2.—Explanation No. 1 says that a thing so long as it is attached to the
earth, it is not the subject of theft, but as soon as it is severed from the earth it becomes movable
property and thus a subject-matter of theft. Explanation No. 2 says that the moving by the same act
which effects the severance may constitute theft. Thus mere sale of standing trees is not theft, 2 but
carrying away of them after falling them down is theft. 3 Similarly, cutting of green grass amounts to
theft and moving by the same act which effects severance of it from the earth amounts to taking if it
is with dishonest intention.4 Where A cut paddy belonging to B but did not remove it though the
paddy was ripe for cutting. A would still, be liable for theft if cutting of paddy was with dishonest
intention because severance of paddy crops constitutes its moving as well. This may constitute the
offence of mischief as well.
In Durga Tewari,5 the accused was entrusted to take care and watch paddy crop till it was
ripe when the owners were to give notice to the factory who would reap it. The accused cut the crop
and disposed it off. He was held guilty of theft.
Explanation 3.—Explanations number 3 and/4 deal with the various modes of moving of
property. The three modes according to explanation No. 3 are : (i) by actual moving, (ii) by
separating it from any/other thing and (iii) by removing an obstacle which prevented it from
moving.'
Explanation 4.—According to Explanation No. 4 a person is said to move everything which
is moved in consequence of the motion of animal caused by that person.
Explanation 5.—According to this Explanation consent may be express or implied and it
may be given either by the person in possession or by any person having authority express or
implied to give consent.
Theft by husband and wife.—As far as Hindu law is concerned, husband and wife do not
constitute one single person for the purpose of criminal law. Therefore, a wife may be guilty of theft
if she moves any property belonging to her husband with dishonest intention. 6 Stridhan (woman's
property) is a property which exclusively belongs to wife. Therefore, she cannot be held guilty of
stealing stridhan1 but husband may be guilty of stealing stridhan. So also a Mohammedan wife may
be guilty of stealing her husband's property8 arid the husband may also similarly be held guilty.
Necessitas inducit privilegium quo ad jura privata.—No amount of necessity can justify
an act of stealing.
1. Martin's case, (1777) I Leach 171.
2. Balos, (1882) 1 Weir 419.
3. Bliagu Vishnu, (1897) Unrep. Cr. C. 928.
4. Samsuddin, (1900) 2 Bom. L.R. 752.
5. (1909) 36 Cal. 758.
6. Butchi, (1893) 17 Mad. 401.
7. Natlta Kalyan, (1871) 8 B.H.C. (Cr. C.) 11.
8. Khatabai, (1869) 6 B.H.C. (Cr. C.) 9.
Cases.—In Vinod Samuel v. Delhi Administration,1 one Chandra Kala was travelling in a bus
with her husband Trilokchand. When the bus stopped at Patel Nagar bus stand, one person came
from opposite direction, snatched the chain of Smt. Chandrakala who was sitting by the side of the
window and ran away. She raised an alarm and her husband chased the culprit. With the help of two
others, Guru Dharshan Singh and Harjit Singh, he was overtaken and caught. The gold chain was
not recovered. Nobody had seen the person who snatched the chain. The only reason why the
appellant was apprehended was that he was seen running after the bus stopped at the bus stand.
Nobody saw the appellant dropping the chain while he was being chased.
It was held that the appellant cannot be held guilty of theft. Merely because • for some reason
he was seen running or walking briskly after the incident it does not follow that he was the culprit
although a strong suspicion may arise against him.
Where a bull which is dedicated to an old idol in a temple is caught by B and put to work in
his garden, B will be guilty of theft.
379. Punishment for theft.—Whoever commits theft shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or with both.
380. Theft in dwelling house, etc.—Whoever commits theft in any building, tent or vessel, which building, tent
or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment
of either description for a term which may extend to seven years, and shall also be liable to fine.
COMMENT
This section deals with theft in any building, tent or vessel used as a human dwelling or used
for the custody of property. Building means a permanent edifice of some kind. The object of this
section is to provide a greater security to any property deposited in a house, tent or vessel. Theft
from a verandah,2 or the top of a house, 3 or a compound4 or a brake van of a train 5 is not theft in
building. But theft from a courtyard6 or from an entrance hall surrounded in which there were two
doorways but no doors, which was used for custody of property,7 is theft.
Where there is no evidence to show that the accused had committed theft of clothes from
inside the house, namely, because some clothes were lying outside at the time when the accused was
caught inside the house, it could not be assumed that he was the author of the crime of theft of
clothes from the dwelling house.8
381. Theft by clerk or servant of property in possession of master.—Whoever, being a
clerk or servant, or being employed in the capacity of clerk or servant, commits theft in respect
of any property in the possession of his master or employer, shall be punished with
be liable to fine.
1. 1991 Cri. L.J. 3359 (S.C.).

2. (1870) 1 Weir 435.
3. (1866) 1 Weir 435.
4. Rama, (1889) Unrep. Cr. C. 484.
5. (1880) 1 Weir 436.
6. Chulam Jelani, (1889) P.R. No. 16 of 1889.
7. Dad, (1878) RR. No. 10 of 1879.
8. Penpiles Bagh v. State, 1984 Cr. L.J. 828 (Orissa).
COMMENT
Severe punishment is prescribed by this section when a clerk or servant commits theft
because he has greater opportunities of committing this offence owing to the confidence reposed in
him.
382. Theft after preparation made for causing death, hurt, or restraint in order to the
committing of the theft.—Whoever commits theft, having made preparation for causing death,
or hurt, or restraint, or fear of dc.ith, or of hurt, or of restraint, to any person, in order to
the committing of such theft, or in order to the effecting of his escape after the committing
of such theft, or in order to the retaining of property taken by such theft, shall be punished
with rigorous imprisonment for a term which may extend to ten years, and shall also be liable
to fine.
Illustrations
(a) A commits theft on property in Z's possession ; and while committing this theft, he has a loaded
pistol under his garment having provided this pistol for the purpose of hurting Z in case Z should resist. A has
(b) A picks Z's pocket, having posted several of his companions near him, in order that they may
restrain Z, if Z should perceive what is passing and should resist, or should attempt to apprehend A. A has
COMMENT
For an offence under this section it is not necessary that injury should actually be caused by
thief because if hurt is actually caused when a theft is committed the offence would be punishable
as robbery. A thief under this section is full of preparation to cause hurt but he may not cause it. A,
B and C surround D in such a way as to make resistance on the part of D, useless and then A takes
away his watch without the use of force or threat. Here A, B and C would be guilty under section
382 read with section 34 because they have committed restraint in order to committing of theft.
OF EXTORTION
383. Extortion.—Whoever intentionally puts any person in fear of any injury to that
person, or to any other, and thereby dishonestly induces the person so put in fear to deliver
to any person any property or valuable security, or anything signed or sealed which may be
converted into a valuable security, commits "extortion".
Illustrations
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z
to give him money. A has committed extortion.
(b) A threatens Z that he will keep Z's child in wrongful confinement, unless Z will sign and deliver to A
a promissory note binding Z to pay certain moneys to A. Z signs and delivers the note. A has committed
extortion.
(c) A threatens to send club-men to plough Z's field unless Z will sign and deliver to B a bond binding Z
under a penalty to deliver certain produce to B, and thereby induces Z to sign and deliver the bond. A has
committed extortion.
(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a blank
paper and deliver it to A. Z signs and delivers the paper to A. Here, as the paper so signed may be converted
into a valuable security, A has committed extortion.
COMMENT
Ingredients.—The following are the ingredients of this section—
(1) Intentionally putting a person in fear of injury to himself or to another.
(2) Dishonestly inducing the person so put in fear to deliver to any person any
property or valuable security.
Puts any person in fear of injury.—For an offence under this section the extortioner must put
another person under fear of injury and thereby dishonestly induce that person to deliver property.
The fear must be of such a nature and extent as to unsettle the mind of the person on whom it
operates and takes away from his acts that element of free voluntary action which alone constitutes
consent.1 Where the accused threatened to expose a clergyman, who had criminal intercourse with a
woman in a house of ill fame, to various persons, it was held to be a threat falling under this section
because it was of such a nature as men of ordinary firmness could not be expected to resist. 2 The
threat under this section had nothing to do with the truth of the accusation. 3 The guilt or innocence
of the party threatened is immaterial. A threat to charge may not be before a judicial tribunal, it
would be enough if the threat is to charge before a third person.4
In a case where P, the prosecutor while returning home met a woman on the way to whom he
spoke, whereupon he was accosted by a policeman on duty who threatened to prosecute him for
having spoken to a prostitute on the street for which P made himself liable to pay a fine of 1 pound.
The constable, however, proposed to drop the matter if he was paid a hush money of 5 Sh. which P
paid him. The constable was held liable for this offence.5
But a refusal by A to perform a marriage ceremony and enter the marriage in the register
unless he was paid Rs. 5 does not amount to extortion.'' Similarly, a refusal to allow people to carry
firewood collected in a Government forest without payment of proper fees, 7 a payment taken from
the owner of trespassing cattle under the influence of a threat that the cattle would be impounded if
the payment were refused,8 and the obtaining of a bond under the threat of non-rendering of service
as a vakil9 were held not to constitute an offence under this section.
2. Dishonestly induces the person so put in fear to deliver to any person any property.—The
essence of this offence is dishonest inducement and obtaining delivery of property in consequence
of such inducement. Therefore, an intention to cause wrongful loss or gain is essential; merely
causing of wrongful loss would not be sufficient.
For an offence under this section actual delivery of property by the person put in ('car of
injury is essential."1 Where a person through fear offers no resistance to the carrying off of his
property, but docs not deliver any of the property to those who carry it away, the offence committed
is not extortion but robbery." The offence of extortion is not complete until delivery of property by
the person put in fear.
To any person.—It is not necessary that the threat should be used, and the property received,
by one and the same person. The threat may be used by one person and the property must be
delivered in consequence of such a threat, i.e., the delivery of property to the person who puts in
fear of injury to the one who delivers that property is not necessary, it may be delivered to any
person at the instance of the former and in consequence of the threat used. All those persons who
use threat and to whom property is delivered will be liable for the offence of extortion.12
Valuable security.—The thing delivered under this section may be any
1. Walton, (1863) 9 Cox. 268.

2. Miard, (1844) 1 Cox. 22.
3. Redman, 10 Cox. 159.
4. Robinson, (1837) 2 M. & R. 14.
5. Robertson, 10 Cox. 9.
6. Nizamuddin, (1923 ) 4 Lah. 179.
7. Abdul Kadar, (1866) 3 B.H.C. (Cr. C.) 45.
8. Habib-ul-Razzaq, (1923) 46 All. 81.
9. (1870) 5 M.H.C. (Appex) XIV.
10. Labh Shanker, A.I.R. 1955 Sau. 42.
11. Duleelooddeen Sheikh. (1866) 5 W.R. (Cr.) 19.
12. Shankar Blwgwal, (1866) 2 B.H.C. 394.
538 OF OFFENCES AGAINST PROPERTY [ S. 383
property or valuable security, or anything signed or sealed which may be converted into a valuable
security. Valuable security is defined in section 30 of the Code. The latter expression, i.e. anything
signed or sealed denotes that even incomplete deeds may be the subject of extortion. If a minor boy
is beaten and forced to execute a pronotc, the person using such force would be liable under this
section,1 but forcible taking of thumb impression on a piece of paper which can be converted into a
valuable security docs not amount to extortion but to an offence under section 352 of the Code. 2 But
incomplete deeds may be the subject of extortion. For instance, A signs his name to a promissory
note in which date and amount etc. are not filled up and delivers it to B, the offence of extortion is
committed because promissory note can be completed and used as valuable security.'
Cases.—In a case where the accused took a photograph of a naked boy and a girl by
compelling them to put off their clothes and extorted money by threatening them to publish the
photograph, he was guilty of extortion. 4 Where P, a police officer arrested B and refused to accept
bail until rupees 500 was paid and released him only when the amount demanded was paid, P was
guilty of extortion.? Where A obtains property from B by saying. "Your child is in the hands of my
gang and will be killed unless you send us five thousand rupees". A would be guilty under this
section. A finds B's brief case and writes to him that he will give it on payment of Rs. 500/-. If B
pays Rs. 500 then A will be liable for extortion but if he does not pay then he will be liable for
attempt to commit extortion and also for criminal misappropriation if he does not return the brief
case.
In R.S. Nayak v. A.R. Antulay and another? it was held that for an offence of extortion, fear
or threat must be used. Before a person can be said to put any parson to fear of any injury to that
person it must appear that he had held out some threat to do or omit to do what he is legally bound to
do in future. If all that a man does is to promise to do a thing which he is not legally bound to do and
says that if money is not paid to him he would not do that thing, such act would not amount to an
offence of extortion.
In this case Chief Minister A.R. Antulay, asked the sugar co-operatives, whose cases were
pending before the Government for consideration, to make donations and promised to look into their
maker. It was held by the Supreme Court that these facts do not constitute the offence of extortion.
There was no evidence at all that the managements of the sugar co-opcratives had been put in any
fear and the contributions had been paid in response to threats.
Distinction between theft and extortion.—(1) In theft the offender takes property without the
consent of the owner; extortion is committed by wrongfully obtaining of consent.
(2) Only movable property may be the subject-matter of theft; the property obtained by extortion
is not limited only to movable one, even immovable property may be the subject-matter of extortion.
(3) In theft the property is taken by the offender; in extortion the property is delivered to the
offender.
(4) In theft no force or threat is used or fear is caused in taking the property; in extortion the
property is obtained by intentionally putting a person in fear of injury to that person or any other and
thereby dishonestly inducing him to part with his property.
1. Ram Narain Saliu, A.l.R. 1933 Pat. 601; 35 Cri. L.J. 123.
2- Jadunandan Singh. A.l.R. 1941 Pat. 129.
3. M. & M. 346.
4. I.L.R. (1969) 19 Raj. 141; See also Romesh Chandra Arora, A.l.R. 1960 S.C. 154.
5. A.l.R. (942 Oudh 163.
6. 1986 Cri. L.J. 1922 (S.C).
384. Punishment for extortion.—Whoever commits extortion shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine,
or with both.
COMMENT
Dhananjay v. State of Bihar.1 is an appeal against an order of Patna High Court in not accepting a
compromise reached between the parties as the offence involved was one under Section 384 IP.
Code which is not a compoundable offence. In this case money was admittedly due from informant
to the accused. It was alleged by informant that the accused with unknown persons entered his room
and demanded payment of money more than was due to him. On refusal to pay money informant
was slapped by the accused and money was taken away from his upper pocket. It was held that in
the absence of allegation that money was paid by informant having been put in fear of injury the
offence of extortion is not committed. It was also held that rejection of application for discharge of
accused based on settlement reached between parties on the ground that tho offence of extortion was
not compoundable was improper.
In this case distinction between theft and extortion was made clear. Extortion is carried out by
overpowering will of owner, while in theft offender's intention is to take without that person's
consent.
385. Putting person in fear of injury in order to commit extortion.—Whoever, in order
to the committing of extortion, puts any person in fear, or attempts to put any person in fear,
of any injury, shall be punished with imprisonment of either description for a term which may
COMMENT
This section recognizes the distinction between an inchoate and a consummated offence. The
attempt of extortion by putting a person in fear of injury such fear without actual delivery of the
property though for that purpose is punished by this section.
The injury contemplated must be within the power of the accused. A threat of God that he
will punish is not such an injury. No injury can be caused or threatened to be caused unless the act
done is either an offence or such as may properly be made the basis of civil action.2
X, a cloth seller was threatened for fine if he continued selling foreign cloth. He continued to
sell such cloth and to enforce payment of fine a picketing of his shop was arranged for two hours. In
consequence he lost certain business and had to pay fine. It was held that those who picketed were
guilty under this section as well as section 384.3
Where a Mukhtar in a criminal case threatened with intent to extort money to put questions to
prosecution witnesses which were irrelevant, scandalous and indecent with an intent to annoy and
insult, it was held that he was guilty under this section.4
386. Extortion by putting a person in fear of death or grievous hurt.—Whoever commits
extortion by putting any person in fear of death or of grievous hurt to that person or to any
other, shall be punished with imprisonment of either description for a term which may extend
COMMENT
The punishment is greater in this section because the hurt and fear is of death and grievous
hurt.
387. Putting person in fear of death or grievous hurt, in order to commit
extortion.—Whoever, in order to committing of extortion, puts or attempts to put any person
in fear of death or of grievous hurt to that person 6r to any other, shall be punished with
be liable to fine.
1. 2007 Cri. L.J. 1440 (S.C.).
2. Tanumal Udhasing. A.I.R. 1944 Kar. 146.
3. Clutlurbhuj, (1922) 45 All. 137.
4. Fuzlur Rahman. (1929) 9 Pat. 725.
COMMENT
Like sections 384 and 385 this sections is also related with section 386 in the same fashion.
388. Extortion by threat of accusation of an offence punishable with death or
imprisonment for life etc.—Whoever commits extortion by putting any person in fear of an
accusation against that person or any other, of having committed or attempted to commit any
offence punishable with death, or with imprisonment for life, or with imprisonment for a term
which may extend to ten years, or of having attempted to induce any other person to commit
such offence, shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine ; and, if the offence be one punishable
under section 377 of this Code, may be punished with imprisonment for life.
COMMENT
The intention of the accused to extort money is the base of this section. It is immaterial
whether the person against whom the accusation is threatened is innocent or guilty. The accusation
for a greater offence carries greater punishment, the penalty becomes severer if the accusation is for
unnatural offence.
389. Putting person in fear of accusation of offence in order to commit extortion.—
Whoever, in order to the committing of extortion, puts or attempts to put any person in fear
of an accusation, against that person or any other, of having committed, or attempted to
commit, an offence punishable with death or with imprisonment for life, or with imprisonment
for a term which may extend to ten years, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine, and, if
the offence be punishable under section 377 of this Code, may be punished with imprisonment
for life.
COMMENT
This section is analogous to section 388 and bears the same relation which section 386 bears
with section 385.
OF ROBBERY AND DACOITY
390. Robbery.—In all robbery there is either theft or extortion.
Wlien theft is robbery.—Theft is "robbery" if, in order to the committing of the theft, or in committing
the theft or in carrying away or attempting to carry away property obtained by the theft, the offender for that
end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant
death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.—Extortion is "robbery" if the offender at the time of committing the
extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of
instant death, or of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by
so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.—The offender is said to be present if he is sufficiently near to put the other person in fear
of instant death, or instant hurt, or of instant wrongful restraint.
Illustrations
(a) A holds Z dov/n, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent.
Here A has committed theft, in order to the committing of that theft, has voluntarily caused wrongful restraint to
Z. A has therefore committed robbery.
(b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his
purse. Here A has extorted the purse from Z, by putting him in fear of instant hurt, and being at the time of
committing the extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z's child on the high road. A takes the child, and threatens to fling it down a precipice,
unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by
causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying—"Your child is in the hands of my gang, and will be put to
death unless you send us ten thousand rupees". This is extortion, and punishable as such; but it is not robbery,
unless Z is put in fear of the instant death of his child.
COMMENT
Robbery is an aggravated form of either theft or extortion or of both. The essence of the
offence of robbery is the presence of imminent fear or violence. A large proportion of robberies are
a mixed case of aggravated form of theft and extortion. Para 2 of this section deals when theft is
robbery a,td Para 3 deals when extortion is robbery.
(1) When theft is robbery.—Theft is robbery in the following conditions :—

(i) When someone voluntarily causes or attemptis to cause to any person,
(a) death or hurt or wrongful restraint, or
(b) fear of instant death or instant hurt or of instant wrongful restraint.
(ii) The above acts must be done for any of the following ends :—
(a) in order to the committing of theft, or
(b) in committing theft, or
(c) in carrying away, or attempting to carry away property obtained by theft.
In Venu alias Venugopal v. State of Karnataka,[ appellants allegedly intercepted victim and
robbed gold and cash by threatening with knife. It was held that evidence of victim, her husband
and recovery of vehicle used clearly established commission of offence of robbery by appellants.
Offence was committed at night on public road not a highway, therefore, conviction of appellants is
proper.
It was also observed that robbery is only an aggravated form of offence of theft or extortion
and aggravation is in use of violence, of death, hurt or restraint. Violence must be in the course of
theft and not subsequently. It is not necessary that violence actually should be committed but even
attempt to commit is enough. The words "for that and" used in Section 390 clearly mean that hurt
caused must be with object of facilitating committing of theft or must be caused while offender is
committing theft or is attempting to carry away property obtained by theft.
Carrying away.—For an offence of robbery, death, hurt, or wrongful restraint may be
caused either in committing theft or in order to the committing of theft or it may even be caused
after committing theft but in order to carry away the property obtained by theft. This means that
death, hurt or wrongful restraint may be caused either before, or during or after committing theft but
it must be caused for any of the ends stated in the first part of para 2.
For that end.—As explained above the expression "for that end" indicates that death, hurt,
or wrongful restraint is caused in order to the committing of theft, or in committing theft, or in
carrying away property obtained by theft. But if a person causes hurt simply to avoid his capture
when he is surprised by the owner while stealing, it would be a case of theft and not of robbery.2
But where C and D were stealing mangoes from a tree, and were surprised by B, whereupon C knocked down B and B became senseless, the offence of robbery
was held to have been committed.3 Mere use of violence does not convert the offence of theft into robbery, unless the violence is committed for one of the ends specified in
para 2 of this section. Thus where the accused abandoned the property obtained by theft and threw stones at his pursuers to deter them from continuing the pursuits, he was
guilty of theft and not of robbery.4
1. 2008 II Cri. L.J. 1634 (S.C.).

2. Kaiio Kaio, (1872) Unrep. Cr. C. 65.
3. Hushrut Sheikh, (1866) 6 W.R. (Cr.) 85.
4. (1865) 1 Weir 442.
[ S. 390
542 OF OFFENCES AGAINST PROPERTY
In a case D was relieved of his wrist watch by A in a railway compartment when the train was
about to stop at a station. As D raised an alarm B gave him a slap and both A and B jumped out of
the compartment and ran away. Soon after both of them were found taking tea at a stall situated near
the railway station. Both A and B will be guilty under section 392 read with section 34 I.P.C. because
B in furtherance of common intention to commit robbery and with the intention to save A from being
caught caused hurt to D and has thus helped in carrying away the stolen property.
Voluntarily causes.—The use of the words 'voluntarily causes' in this section is significant
because merely causing of incidental injury does not convert the offence into robbery. The injury
must be voluntarily caused. For instance, in Edward,1 the accused while cutting a string, by which a
basket was tied, with intent to steal it, accidentally cut the wrist of the owner, who at the moment
tried to seize-and keep the basket and ran away with it. He was held liable for theft. In a case the
accused in snatching a nose-ring of a woman wounded her in the nostril and caused her blood to
flow. He was held guilty of robbery.2
Person.—The word "person" is defined in section 11 of the Code. It means both natural and
juridical person. Normally dead body of a human being may not be a person but for the purposes of
this section the word 'person' does not exclude the dead body of a human being who was killed in the
course of the same transaction in which theft was committed.3
(2) When extortion is robbery.—Extortion is robbery if the following conditions are fulfilled
:
(i) when a person commits extortion by putting another person in fear of
instant death, or instant hurt, or of instant wrongful restraint to that person or to
some other person; and
(ii) such a person by so putting another in fear, induces the person so put
in fear then and there to deliver up the thing extorted; and
(iii) the offender, at the time of committing the extortion, is in the
presence of the person put in fear.
Illustrations (b), (c) and (d) to this section are the examples of those cases where extortion
becomes robbery.
In the presence of the person.—For extortion to become robbery it is necessary that the
offender must be present before the person put in fear of injury. Explanation to this section clarifies
that a person is said to be present if he is sufficiently near to put the other person in fear of instant
death, or instant hurt, or of instant wrongful restraint. The offence of extortion becomes robbery if
the offender by reason of his presence is capable enough to carry his threat into effect
instantaneously. That is, the victim delivers ; his property in order to avoid imminent danger of injury
to himself or to some other person. When injury threatened relates to some other person, such other
person would naturally be one in whom the person robbed is interested and, therefore, in order to
avoid injury to that other person he delivers the thing demanded. A takes out a knife and points at B
and says to C that he will kill his son B if she refuses to part with her golden chain. C delivers that
chain to A. A is guilty of the offence of robbery because he extorts money by putting B in immediate
danger to life.
Where A a police officer obtains from B certain ornament by putting him under the fear that
he will immediately be put into prison and will not be released for months, the police officer is guilty
of robbery under this section.
Cases.—In a case of robbery whose identification parade is not held, or identification parade is held
1. (1843) 1 Cox 32.
2. Tikai Bheer, (1866) 5 W.R. (Cr.) 95.
3. Jamnadas, A.l.R. 1963 M.P. 106.
approximately four months after the incident and aggrieved persons did not know the accused,
conviction of the accused will not stand.1
Where the accused attacked his victim by knife many times and succeeded in acquiring the
ear-rings and key from the string of her salwar he will be punished under this section read with
section 34 of the Act.2
A, B, C, D and E set out for committing dacoity in the house of X. E being dead drunk could
not accompany his companions and fell down under the tree. A, B. C and D entered the house of X
and by show of force took away gold ornaments. Thereafter they came to the place where E was
lying under the tree and gave him a part of the booty. E is liable for abetting the offence of robbery
and A, B, C and D will be liable for robbery.
In a case 'P' 'Q' and 'R' had common intention to rob 'S'. While 'P' and 'Q' entered into the
house of 'S' and beat and robbed him, 'R' stood outside to warn 'P' and 'Q' of any danger. On being
prosecuted along with 'P' and 'Q', 'R' pleaded that he did neither commit the robbery nor caused
injuries to 'S' and hence was not guilty of any offence. Here R will not succeed in his defence and he
will be liable for robbery under section 390 read with section 34.
[ S. 390
543 OF OFFENCES AGAINST PROPERTY
A, B and C broke into a locked house and started ransacking it. When a domestic servant
raised alarm, they threatened to kill him. He, however escaped and cried for heIP. A, B and C ran
towards a taxi stand as they were pursued by a crowd. A, on being caught by one of the crowd,
stabbed him. In this case A, B and C all the three will be guilty of attempting to commit robbery. But
while running away from the place of occurrence when A was caught by one of the crowd he stabbed
him, therefore A will be liable for stabbing as well. If in consequence of stabbing the person stabbed
dies then A will be liable for committing murder also as A cannot claim his right of private defence
of body because he was himself an offender having gone there to commit robbery. B and C will also
be liable under Section 111, Indian Penal Code for abetment because they had gone with A to
commit robbery and stabbing may be a probable consequence in the offence of robbery. From the
facts of the case it is clear that A, B and C had conspired to commit robbery in pursuance of which
they had broke into the locked house. So the act alone by A was the probable consequence of act
abetted i.e. robbery.
In a case four persons A, B, C and D go armed with guns to X's house with the intention of
committing robbery. X being absent, C and D proceed to the field where X had gone with a view to
compel him to hand over the keys of the safe. In the mean time Y the son of X pushes open the door
of the house, whereupon A shoots him dead. In this case only A will be liable for committing murder
of Y and B, C, D will be liable for conspiring to commit robbery as all the four A, B, C and D had
gone to X's house with the intention of committing robbery. B, C and D will not be liable for
committing murder because it was not committed in the course of committing robbery.
391. Dacoity.—When five or more persons conjointly commit or attempt to commit a robbery, or
where the whole number of persons conjointly committing or attempting to commit a robbery, and persons
present and aiding such commission or attempt, amount to five or more, every person so committing,
attempting or aiding is said to commit "dacoity".
COMMENT
Robbery committed by five or more persons is dacoity. Five or more persons must either
conjointly commit or attempt to commit robbery, then only the offence of dacoity is constituted. The
word 'conjointly' refers to united or concerted action of the persons participating in the transaction.
When their
1. Mohammad Abdul Hafiz v. State of Andhra Pradesh, 1983 Cri. L.J. 689 (S.C.).
2. Shikander v. State, 1984 Cri. L.J. (N.O.C.) 103 (Delhi).
individual action can be properly referred to their concerted action only then the offence under this
section is committed.1
Five or more persons should be concerned in the commission of the offence and they should
commit or attempt to commit robbery.2 For application of this section it is necessary that all the
persons should share the common intention of committing robbery.3 The accused must be shown to
have committed robbery or aided in the commission of it and that they must be among the body of
persons who extorted money or aided them in extorting money.4
In counting the number of offenders for the purposes of this section the whole number of
persons conjointly committing or attempting to commit a robbery and persons present and aiding
such commission or attempt are taken into account.
Dacoity is different from robbery only in respect of the number of offenders. Dacoity is thus
more severely punishable because the offence is considered to be graver than robbery by reason of
the terror it causes by the presence of greater number of offenders. Abettors present and aiding
when the crime is committed are also counted in the dumber. Dacoity includes robbery and because
robbery is only aggravated form of theft or extortion, therefore, dacoity includes theft and extortion
also. Offering of resistance by the victim is not necessary. Thus, if in a case of dacoity the inmates
of a house, seeing the large number of dacoits do not offer any resistance and, therefore, no force or
violence is required or used by the dacoits, the offence will not be reduced from dacoity to theft. 5
Similarly, where the inmates of a house on simply getting the information that dacoity was about to
be committed left the house and ran away before the attack and several persons attacked the house
and took away property, the offence of dacoity was held to have been committed because the fact of
inmates running away was sufficient proof of the fear of hurt or wrongful restraint.6
Conviction of less than five persons.—If there are only five accused who commit the
dacoity and out of five only three are punished and the other two are acquitted, the conviction of
only three is bad because the offence of dacoity cannot be committed by less than five persons. 7 But
where in spite of acquittal of a number of persons, it is found .as a fact that along with the persons
who participated in the offence, bringing the total number of participants to five or more, the
conviction of the identified persons, though less than five in number, would not be bad.8
In Lachhman Ram v. State of Orissa,9 it was held that in a case of dacoity, the factum of recovery of articles at the instance of the accused persons in the presence
of police officers and panch witnesses who have deposed to the same is itself sufficient to bring the case not only under section 412 but also under section 391 with the aid of
section 114 Evidence Act when the recoveries were made very soon after the occurrence and from places not open and accessible to one and all.
Difference between Robbery and Dacoity :—

(1) Every case of dacoity is primarily a case of robbery but vice-versa is not correct.
1. Dambaru Dhar Injal, (1951) 2 Ass. 365.

2. Shyam Behari, A.l.R. 1957 S.C. 320.
3. Nahu Ltd Tulsi, A.l.R. 1956 A.P. 18.
4. Atum Lengmei, A.l.R. 1962 Manipur 7.
5. Ram Chand, (1932) 55 AIL 117.
6. Kossoree Pater, (1867) 7 W.R. (Cr.) 35.
7. Lingayya, A.l.R. 1958 A.P. 510.
8. Ghamandi, 1970 Cr. L.J. 386.
9. 1985 Cr. L.J. 753 (S.C).
(2) In dacoity the number of participants must be five or more; in robbery the
number of participants is always less than five because robbery committed by five or more
persons is dacoity.
392. Punishment for robbery.—Whoever commits robbery shall be punished with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to fine ; and if the robbery be committed on the
highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
COMMENT
Robbery if committed on the highway between sunset and sunrise is more severely punished.
Where the accused caused knife injury on the victim which enabled him to remove the ear-
rings of the victim and key from the string of salwar she was wearing, the case will be covered by
section 392 read with section 397 and the sentence in view of section 397 could not be less than 7
years and could extend upto 10 years.1
In George v. State of Kerala,2 the deceased had been working for PW-28 at his farm. On 28-
6-1995, as usual, he left for his work at 7 a.m. At the time of leaving his house PW-3 and PW-7 had
seen him putting on two gold rings and a watch. PW-28 had also noticed him putting on the above
said articles. Till mid-day he was at the farm and after having his lunch he had left the place. At
about 9.30 p.m. while PWs-10, 12, and 13 were at their house they heard the deceased saying "take
whatever you want, leave me alone". PW-12 is said to have heard the voice of the appellant as well.
Since the deceased did not turn up to his work in the morning next day, PW-28 sent one of his
employees to the house of the deceased to find out the reason. This is how PW-3 the brother of the
deceased with whom the deceased was living came to know that his brother was missing and started
search for him but with no result. On 30-6-1995 PW-1 saw a dead body floating in thodu. A report
in that connection was registered and the photograph of the dead body was published in the
newspaper which PW-3 saw on 01-7-1995. On that basis he went to the Government hospital
identified the body of his brother. He further noticed that the two gold rings and the watch which
the deceased was putting on were missing. Post-mortem report indicated drowning as cause of
death. No external or internal injury was found on the dead body. The investigating officer came to
know that accused had pledged a gold ring with PW-19 which led to the arrest of appellant on 5-7-
1995 at a toddy shop. The watch and the other ring was also recovered at the instance of the
appellant.
It was held that the case depends on circumstantial evidence which leads to inference that the
accused has himself committed robbery. Since death of deceased was caused by drowning and no
external or internal injuries were found on dead body, death by drowning does not provide any link
1. Shikander v. State, 1984 Cr. L.J. (N.O.C.) 103 (Delhi).

2. 2002 Cri. L.J. 2031 (S.C.).
with robbery and death of deceased. Therefore, the inference that murder was also committed by
accused could not be drawn. The conviction and sentence of the appellant for imprisonment for life
under section 302 was set aside but conviction and sentence awarded under section 392 was upheld.
In Ezhil v. State of Tamil Nadu,1 three persons Ezhil A-l, Saravaran A-2 and Mohammed
Iqbal A-3 were charged for offences under sections 364, 392 and 302 read with section 34 and
section 120-B of the Indian Penal Code. The dead body of deceased who met homicidal death was
found lying near bridge iii a village. Articles belonging to deceased were recovered from possession
of accused persons who were travelling together in a car. Such possession by accused is very much
proximate in point of time to death of deceased. Seizure of blood-stained articles particularly bed-
sheet, lungi and chappals and also passport and driving-licence of deceased from dickey of car was
proved. There was no reasonable and plausible explanation by accused persons as to legitimate or
origin of their possession of articles belonging to deceased. It was held that keeping in views the
proximity of time within which act of murder was supposed to have been committed and body
found and the articles recovered from possession of accused presumption can be drawn not only of
fact that they were in possession of the stolen articles after committing robbery but also committed
the murder of deceased. Therefore, the conviction of accused persons under sections 302 and 392
read with section 34 was proper.
It was further held that accused persons committed grave act of depravity by killing deceased
only for the purpose of enriching themselves of the fortunes brought by deceased, who unaware of
their diabolical scheme got lured into their company for a safe travel to his destination. Therefore,
imposition of 10 years R.I. for robbery and life imprisonment for offence of murder cannot be said
to be harsh or grossly disproportionate.
In Munna v. State (N.C.T. of Delhi),2 Pw-6 Prakash Bablani and his wife Pw-3 Smt. Sadhana
Bablani were residing on the first floor in Shakti Nagar Delhi. At about 11.00 a.m on 5-10-1991,
when the maid servant had left after finishing her daily work and the front door of the house was
open, Smt. Sadhana Bablani who was alone in the house was talking to someone on telephone when
four boys entered the house and bolted the door from inside. They enquired about the keys of
almirah and tied her hands on the back side and a portion of lungi was forcibly inserted in her
mouth so that she may not be able to make any noise. One of the robbers who was holding a country
l."2002 Cri. L.J. 2799 (SC). 2.

2003. Cri.L.J. 4440 (S.C).
made pistol was constantly holding out threats that he would shoot her. The robbers broke open the
lock of steel almirah by using a curtain rod and a screw driver and removed currency notes worth
about Rs. 1.5 to 2 lakhs and some silver coins and other articles. One qf the robbers removed the
golden bangles from the hands of Smt. Sadhana Bablani. When the robbers were still inside the
house Prakash Bablani came from outside and started ringing the electric bell. Not getting any
response from his wife, he kept on ringing the bell for a long time. Smt. Sadhana Bablani then some
how gathered courage and shouted. Thereafter, Prakash Bablani broke open
S. 392 1 INDIAN PENAL CODE, 1860 547
the door and came inside. Seeing him one of the robbers kept the currency notes in a polythene bag
and jumped down on the road from the balcony of the house. Amongst the robbers one person
namely Ravi was caught by Prakash Bablani. The remaining two also succeeded in jumping from
the balcony of the house to the road and managed to escape. Hearing the commotion and noise Pw-5
Mohd. Akbar, Head Constable, who was on patrol duty, had also arrived at the scene and had seen
the robbers jumping from the balcony and running away. He helped Prakash Bablani in
apprehending Ravi, the accused. In order to free himself Ravi had given blows by the country made
pistol on the forehead of Prakash Bablani and in that process the same fell down on the ground.
Thereafter information was sent and the local police came on the spot, who took accused Ravi in
custody. On the basis of the statement of Smt. Sadhana Bablani a First Information Report was
lodged on the same 'day at police Station Roop Nagar. The country made pistol and one cartridge
were taken into possession and a cartridge was unloaded from the pistol. On the basis of disclosure
statement made by the apprehended accused Ravi, the other accused Rakesh alias Ravi was also
arrested. He also disclosed the name of the other two accused persons as Munna and Satnarain alias
Kishan. Currency notes amounting to Rs. 10000/- were also recovered at the instance of accused
Ravi. The bundle of notes bore a stamp of Vijaya Bank and also of Bablani Ply Wood Traders
Private Ltd. Munna was arrested after a few months on 15-2-1992 and a knife was recovered from
his possession. He was produced with his face muffled in the court of Magistrate on 15-2-92 and a
prayer was made for holding his test identification parade but he declined to participate in the same.
A similar application had been moved earlier on 14-10-1991 for holding test identification parade of
Rakesh alias Ravi but he had also declined to participate. All the four accused were charged and
tried for offences under Section 392 read with section 120-B of the Indian Penal Code. The accused
in their statement under Section 313 Criminal Procedure Code denied the charges and stated that
they had been falsely implicated. They did not lead any evidence in their defence. The designated
Court convicted and sentenced Munna, Ravi and Rakesh alias Ravi but the fourth one namely
Kishan was acquitted. Pw-3 Smt. Sadhana Bablani made a statement before the court stating the
facts as above and pointing towards accused Munna she stated that he had removed four golden
bangles from her hands. After pointing towards Ravi she stated that he was holding a country made
pistol in his hand and was threatening her to shoot.
The appeal was dismissed by the Supreme Court and the conviction and sentence of the
appellant as recorded by the designated Court was affirmed. It was held that it is true that the normal
rule is that testimony of a witness, who does not know an accused from before and identifies him for
the first time in the court as a person who had participated in the commission of the crime, without
holding a previous identification parade does not carry much weight. The substantive evidence of a
witness is the statement in court but as a rule of prudence earlier identification proceedings are held
in order to corroborate the testimony of a witness given in court as regards the identity of the
accused who is not known to him from before. However this normal rule can have no application in
the present case on account of own conduct of the appellant. The investigating officer produced
appellant Munna baparda (with his face muffled) in the court and prayed for holding a test
identification parade and the appellant categorically refused to participate in it.
It was further held that where an accused himself refuses to participate in a test identification
parade, it is not open to him to contend that the statement of the eye-witness made for the first time
in Court, wherein they specifically point towards him as a person who had taken part in the
commission of the crime should not be relied upon. This plea is available provided the prosecution
itself is responsible for not holding test identification parade. However, in a case where the accused
himself declines to participate in a test identification parade, the prosecution has no option but to
proceed in a normal manner like all other cases and rely upon the testimony of the witnesses which
is recorded in Court during the course of the trial of the case.
In the present case so far as Pw-3, Pw-5 and Pw-6 are concerned, they are residing in Delhi
and the appellant is resident of Khurja town in the district of Bulandshahar. Both the prosecution
witnesses are respectable persons having a reasonable good status in society. There is absolutely no
reason why they would falsely implicate the appellant. The incident took place during day hours at
about 11.00 a.m. when there was sufficient light. The hands of Pw-3 Sadhana Bablani were tied and
a lungi has been inserted in her mouth and naturally in this process, the robbers were very close to
her. She has specifically assigned the role of removing her golden bangles to the appellant. Her
testimony shows that the robbers remained inside her house for about half an hour. During all this
time, she had ample opportunity to closely see and identify the appellant. Similarly, her husband
Prakash Bablani Pw-6 had got complete opportunity to see the robbers when he entered inside his
house after breaking open the door. The process of jumping from the balcony of the first floor to the
ground would have taken some time. Pw-5 Mohd. Akbar is a Head Constable who, by the very
nature of his work and duty, is trained to recognise and apprehend criminals. The manner in which
the crime was committed and the manner in which the appellant escaped after jumping from the first
floor of the house clearly shows that the three witnesses got full opportunity to see and identify him.
In these circumstances, there is no reason at all for not placing reliance upon their testimony. The
Court concluded that the prosecution has succeeded in establishing the case against the appellant
beyond any shadow of doubt and that the designated court has rightly convicted and sentenced him.
393. Attempt to commit robbery.—Whoever attempts to commit robbery shall be punished with
rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.—If any person, in committing or in attempting to
commit robbery, voluntarily causes hurt, such person and any other person jointly concerned in committing or
attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment
for a term which may extend to ten years and shall also be liable to fine.
COMMENT
This section provides severe punishment when hurt is inflicted while committing robbery.
Where the accused who were alleged to have committed offence under this section belonged
to the neighbouring village at a distance of less than a mile from the police quarter, the police
officials who came to identify the accused had seen them escaping from the place of incident, but in
absence of reliable evidence, the accused were held not guilty of offence under this section. 1 Where
in a dacoity case dangerous weapons were used by the dacoits and they also threw bombs during
1. Bali Ahir and others v. State of Bihar, 1983 Cri. L.J. 434 (S.C).
dacoity resulting in injury of an inmate of the house and his subsequent hospitalization for 10 days,
the accused may be imprisoned for life under this section.'
In Lai Singh v. State of U.P.,2 a firm, Pannalal Banarasi Das of Kanpur, has a branch office in
Chandni Chowk, Delhi. Amarnath Pw-1, Hari Shanker Pw-4, Sharda Charan and Gaya Prasad Lath
Pw-16 are the employees of the said firm. The firm deals in silver and often transport goods from
Kanpur to Delhi. On 28th October, 1980, Harishankar Pw-4 carried a sum of rupees five lakh from
Kanpur to Delhi office. Pw-1 Amarnath and Sharda Charan had also carried silver to Delhi by train.
After reaching Delhi next morning they delivered cash and silver to Gaya Prasad Lath Pw-16.
However, Pw-16 later received instructions on phone from Kanpur to return the sum of rupees five
lakh to the Kanpur office through Amarnath Pw-1 and Sharda Charan. Accordingly he gave Rs. 3.5
lakh to Amarnath and the remaining 1.5 lakh to Sharda Charan to be taken to Kanpur. Pw-1 kept the
amount in a bag and kept it on the left side of holdall while Sharda Charan tied Rs. 1.5 lakh around
his waist. They were returning by Delhi-Howrah Express train in a three tier coach. Pw-1 kept the
holdall below his head and lay on his berth. Several passengers who did not have reservation also
kept sitting or loitering in the gallery. At about 4.45 a.m. on 30th October, 1980 the train left
Shikohabad railway station and was moving at a very slow speed. One of the culprits who was
travelling in the same compartment pulled the holdall from under the head of Pw-1 who covering his
head was lying on the berth but was awake. When he found that the holdall was being removed, he
jumped down from his berth and caught hold of the holdall. A scuffle followed and one of the
accomplices of Pw-1 the snatcher of holdall pressed his gun against his chin due to which a slight
injury was caused to his chin on the right side. Then the one who had snatched the holdall handed
over the same to his other accomplice and both of them jumped from the train. Two of the co-
passengers also jumped from the train behind them. Amarnath Pw-1 attempted to chase the culprits
but was deterred by other passengers from continuing the chase because the culprit holding the rifle
threatened to shoot them if they chased them. He therefore again boarded the same bogie and tried
to stop the train by pulling the chain but the train did not stop. Two of the culprits were wearing
khaki uniform and one of them was armed with a single barrel rifles. The other two characters were
wearing piyjama and bushsherts. There was sufficient light in the bogie and therefore he and other
passengers had seen their faces. The first information report was lodged by Amamath Pw-1 at the
Etawah G.R.P. police station. It was stated in F.I.R. that Kishan Lai TTE who was posted in the said
bogie was also mixed up with the bad characters and he had taken money from them for permitting
them to travel even when they had no reservation. He^ had noticed the rifle wielding character
1. Gafur Sheildi and another v. State, 1984 Cri. L.J. 559.

2. 2004 Cri. L.J. 378 (S.C.).
talking to the TTE for quite some time. The same TTE was on duty on the train by which he had
come to Delhi. A case of train robbery was registered, investigated and charge sheet was submitted
under Sections 394 and 411 of IP. Code. Hukum Singh and Prakash Chandra appellants are brothers
and Lai Singh their associate was a member of the police force and Chandrika Prasad another
appellant is also resident of the same village to which
Hukum Singh belonged. According to prosecution apart from Amarnath Pw-1 and Sharda Charan,
even Gaya Prasad Lath Pw-16 who had gone to see them off at the railway station had seen two
persons strolling on the railway platform wearing dress like the policemen. Those two persons
entered the same bogie in which Pw-1 and Sharda Charan had their reservations. He had seen those
very persons eating chat in a shop opposite the shop of the firm in Chandni Chowk. The
investigating officer received information on 17th December, 1990 that constable driver Hukum
Singh appellant and his brother Prakash Chandra, a dismissed constable were squandering money
and had purchased a motor cycle and other items. The investigating officer recovered Rs. 5,000/-
from pocket of Prakash Chandra and Rs. 7,500/- from Chandrika Prasad. These were 100 rupees
currency notes and on the bodies of notes the seal of the firm and the signature of Gaya Prasad Lath
was found. Subsequently, the involvement of Hukum Singh and Lai Singh was also discovered. On
disclosure made by Chandrika Singh, a Bank pass book, fixed deposit receipts and twelve National
Savings Certificates of the denomination of Rs. 500/- each were also recovered. Lai Singh was also
arrested and a sum of Rs. 63,200/- was recovered from him. There were six bundles of 10,000/- each
and rest 100 rupees notes. Bundles were bearing seal of the firm and signature of Gaya Prasad Lath.
The licensed gun and cartridges belonging ' to Lai Singh were also recovered and seized. Hukum
Singh disclosed that he and his brother Prakash Chandra had out of their share of the looted money,
purchased, utensils, ornaments and a motor cycle. They had also purchased National Savings
certificates for a sum of Rs. 20,000/- and 20,000/- was deposited in bank. These articles were all
recovered by the Investigating officer.
Test identification parade was held on 4th February 1981 at the District Jail' Mainpuri.
Amarnath Pw-1 correctly identified all the four appellant, one Durga Prasad a co-passenger
correctly identified Hukum Singh and Lai Singh appellants. Gaya Prasad also identified Hukum
Singh and Lai Singh. All the three identifying witnesses did not commit any mistake in identifying
the accused.
The Trial Court found all the four appellants guilty of offences under Section 394 and Section
411 of Indian Penal Code. On appeal the High Court set aside the conviction under Section 411
since they had been found guilty of principal offence under Section 394, I.P.C. During trial the
defence raised the plea that there was irregularity in holding test identification parade and
particularly delay was pleaded. Secondly it was pleaded that the victim was not named in the F.I.R.
It was held that the prosecution has produced evidence which 'satisfactorily proves that right from
the day of arrest the accused were kept 'baparda' so as to rule out the possibility of their faces being
seen while in police custody. Even if it is assumed that there was some delay in holding test
identification parade the Court was required to apply the rule of caution. In this case the conviction
of the appellant is based not solely on the evidence of identification by eye-witnesses but also on the
basis of corroborative evidence in the form of recoveries of looted currency notes from possession
of appellants bearing seal and signature. The eye-witnesses travelled almost seven hours in same
compartment and as such had ample opportunity of noticing facial features of accused in light in the
compartment. Under the circumstances there was no irregularity in holding the test identification
parade and evidence of eye-witnesses was trustworthy and the conviction of accused was not liable
to be interfered with. Further the fact that victim is not named in F.I.R. is not of much significance
in case of this nature. Prosecution can prove its case on the basis of recovery of articles which are
subject-matter of offence.
395. Punishment for dacoity.—Whoever commits dacoity shall be punished with
imprisonment for life, or with rigorous imprisonment for a term which may extend to ten
COMMENT
In a dacoity case nine persons had participated out of which only four were convicted by the Court of
Sessions. Out of these four only one was convicted by the High Court and the remaining were discharged, in
these circumstances conviction of only one cannot be justified because in a dacoity at least five persons are
required.1
In a case the appellants were alleged to have committed dacoity in relation to certain railway property.
No direct evidence was available. Only a truck was standing near the railway track on which 63 pieces of C.S.T.
9, plates were found and when asked by the policemen to stop, the truck inmates refused to stop. It was held that
the prosecution case must fail because : firsdy, the fact that what was being carried by the truck were the stolen
goods belonging to the railway was not established. Secondly, stoppage of truck by policeman and resistance
offered by the inmates of the truck cannot be a piece of evidence of dacoity.2
In State of Rajasthan v. Sukhpal Singh and others,3 the respondent along with six others looted the State
Bank of Bikaner and Jaipur. After looting the bank they ran away in a blue Ambassador car which met with an
accident in the way. At that place they were intercepted by the police and after a game of hide and seek and after
a hot chase they were apprehended. The trial court found them guilty of dacoity and punished them under section
395 I.P.C. but the High Court reversed the judgment. In appeal the Supreme Court found them guilty of the
offence of dacoity but instead of punishing them under this section, imposed upon each of them a fine of Rs.
3000 keeping into account their social status and future prospects. Such an attitude of the Court, it is submitted,
is not in the fitness of the thing.
In Pravin v. State of M.P.,4 dacoity was committed in broad day-light. Bank Manager identified one of
the accused which was corroborated by one another bank employee also. It was held that the evidence would be
acceptable in peculiar facts in spite of so called defects shown in identification. Alleged delay in holding test
identification parade was not of any significance. The sum of Rs. 40000/-, Bank slips and some other bank
documents were also recovered from the accused. It was, therefore, held that the presumption under Section 114
of Evidence Act can be raised. Further, recovery of bag of Bank official containing his private documents from
accused was extremely significant. Therefore, in view of facts and circumstances finding that accused was guilty
of offence of dacoity was not liable to be interfered with.
Uniform sentence ought to be imposed on all the accused involved in a dacoity. 5
396. Dacoity with murder.—If any one of the five or more persons who are conjointly
committing dacoity, commits murder in so committing dacoity every one of those persons shall
be punished with death, or imprisonment for life, or rigorous imprisonment for a term which
COMMENT
Dacoity with murder creates co-extensive responsibility of each participant for murder in the act of such
a dacoity.
1. The dacoity must be the joint act of the accused persons.
2. Murder must have been committed in the course of the commission of the dacoity.
If any one of five or more persons who are conjointly committing dacoity commit murder in so
committing dacoity then every one of them shall be liable for murder. For co-extensive liability the presence of
all the accused at the scene of dacoity is not necessary. The house of X was raided by a gang of five
1. Ram Lakhan v. State of U.P., 1983 Cri. L.J. 691 (S.C.).
2. D.C. Sidha Ganesh and others v. State of Maharashtra. 1984 Cri. L.J. 193 (S.C.).
3. 1983 Cri. L.J. 1923 (S.C.).
4. (2008) 3 Cri. L.J. 2980 (S.C.).
5. Laxaman Ram v. State of Orissa, 1985 Cri. L.J. 753 (S.C.).
dacoits one of whom had a gun. After looting, while the dacoits were running away with their booty,
they shot down one villager and inflicted fatal wounds upon another who died afterwards. It was
held that the murder committed by dacoits while carrying away the stolen property was 'murder
committed in the commission of dacoity' and every offender was, therefore, liable for the murder
committed by one of them.1
Where the accused had committed dacoity in a preplanned way and murdered two persons in
cruel manner during the commission of dacoity and buried their bodies with a view to cause the
evidence of crime to disappear, the sentence of punishment awarded in this section cannot be
reduced.2
In Om Prakash and others v. State of U.P.,3 there was an enmity between the accused and the
deceased. The accused along with his companions committed dacoity in the house of the deceased
on a moonlit night. At that time lantern was burning in the house of the deceased. During dacoity the
deceased was killed, his wife and brother-in-law were seriously injured. The dacoits looted
ornaments, cash, clothes also from the house. They also injured a villager. The wife and brother-in-
law of the deceased identified the dacoits in the light of lantern and moon. The accused were held
guilty of dacoity as an act of dacoity and murder was proved beyond reasonable doubt.
In State of U.P. v. Sukhpal Singh and others* accused persons entered premises, looted licensed
gun and other articles and also killed two persons and injured others. All prosecution witnesses
stated that they had known accused persons and they were not. strangers to them. In moon-light and
lantern-light they clearly identified them. It was, therefore, held that holding of test identification
parade was not necessary. Therefore, acquittal of accused persons by High Court on misreading of
entire evidence on record and on the ground of not holding test identification parade was held liable
to be set-aside and the judgment of conviction under Section 396 I.P.C. by Trial Court was restored
by the Supreme Court.
In Kalika Tiwari v. State of Bihar,5 one Saufulla Devi was married to Jag Narain. She had two
sons and three daughters. The eldest son Gauri Shankar was married and the younger one Keshav
Rai was of marriageable age. While the sons were in their infancy properties of Saufulla Devi were
looked after by her brother Inder Deo Rai (A-4). But when the sons reached maturity they did not
feel happy the way properties were dealt with. A few days prior to the date of occurrence, Rama
Shankar Rai (A-l), son of Inder Deo Rai had an altercation with Gauri Shankar. On the date of
occurrence one Hari Narain visited Saufulla Devi for mooting a marriage proposal for her second
son, Keshav Rai. After evening meals when inmates of the house retired for rest the dacoits reached
there armed with guns and other lethal weapons. Rama Shanker Rai (A-l) asked Saufulla Devi to
surrender key of the safe. The dacoits looted the cash and jewellery. They then closed the door of
the room from out where females were sitting and thereafter gunned down Gauri Shankar Rai,
Keshav Rai and their guest Hari Narain. Thereafter, they all left with the booty. In all fourteen
persons were charge-sheeted but trial court convicted only twelve of them under Section 396/120B
but not under Section 302, IP. Code. The High Court confirmed the conviction under Sections 396
and 120-B and additionally convicted them under Section 302 read with Section 34, IP. Code.
Eleven persons filed criminal appeal against the judgment of the High Court. It was held by the
Supreme Court that if a dacoit in the progress of, and in pursuance of, the commission of a dacoity
commits a murder, all of his companions who are participating in the commission of same dacoity
may be convicted under Section 396 IP. Code, although they may have no participation in the
murder beyond the fact of participation in dacoity.' It is not necessary that the murder should have
been within the contemplation of all or some of them when the dacoity was planned, nor is it
necessary that they should have actually taken part in, or abetted, its commission. Indeed they may
not have been present
1. Lashkat, (1921) 2 Lah. 275.
2. Lalli alias Chiranjib Bhowmick v. State of W.B., 1986 Cri. L.J. 1083 (S.C).
3. 1983 Cri. L.J. 837 (S.C).
4. (200) 2 Cri. L.J. 1556 (S.C).
5. 1997 Cri. L.J. 2531 (S.C).
at the scene of murder, or may not have known even that murder was going to be, or in fact been,
committed. But nonetheless they all will be liable for enhanced punishment, provided a person is in
fact murdered by one of the members of the gang in commission of the dacoity. It is not necessary
for the prosecution in such a case to establish either any common intention envisaged in Section 34
or common object contemplated in Section 149 of the IP. Code.
In the above case it was also contended by the Counsel for the appellant that the light inside
the room i.e., an earthen lamp was too meagre for Saufulla Devi to identify the participants of the
crime. In this connection it was held that the identification of accused even in such light would not
be a problem for villagers especially when many of dacoits were direct relations of complainant
Secondly, the visibility capacity of urban people who are accustomed to fluorescent lights or
incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to
country-made lamps. Their visibility is conditioned to such lights and hence it would be quite
possible for them to identify men and matters in such light.1
397. Robbery or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing
robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or
attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall
be punished shall not be less than seven years.
COMMENT
Sections 397 and 398 do not create any substantive offence but only regulate the punishment
already provided for robbery and dacoity. This section fixes a minimum term of imprisonment when
the commission of robbery or dacoity is accompanied with certain aggravating circumstances, viz.,
use of deadly weapons or causing of grievous hurt or attempt to cause death or grievous hurt is
present. Section 34 of the Code has no application in the construction of this section. 2 The accused
himself must possess the deadly weapon. The liability is neither co-extensive nor constructive as in
Section 149.3
Cases.—If a person levels his revolver against another person in order to over-awe him, it is
enough. It is not correct to say that a person does not use a revolver unless he fires it. 4 X was riding
on a pony. With an intention to steal the pony, the accused gave one or two blows with stick
fracturing one of the arms of X causing X to fall on the ground. The accused then tried to mount and
ride off on the pony but was prevented to do so due to the breakage of the saddle of the pony. It was
held that the accused was guilty of an offence under this section.5
It was held in Niranjan Singh v. State of Madhya Pradesh,6 that actual causing of grievous
hurt is not essential for attracting Section 397, IP. Code. Even attempt to cause grievous hurt is
sufficient. In this case accused caused knife injury on chest just below nipple. Therefore considering
place of injury conviction of accused under Section 397, IP. Code was held to be proper.
It was also pointed out that any hurt which endangers life is a grievous hurt. The term
"endangers life" is much stronger than the expression "dangerous to life". Apart from that in the
provision "attempt" to cause grievous hurt attracts application of this section. The question whether
the accused attempted to cause death or grievous hurt would depend upon the factual scenario. In the
instant <;ase knife blow was given on the chest just below the nipple which was on part of body
which endangers life.
In Mukund v. State of Madhya Pradesh? Anuj Dube, his wife Sarita, daughter Jyoti and son
Deepak were residing in Panchwati colony at Bilashpur. On the date of incident Mr. Dube was away
to Bombay in connection with his business. The appellant/accused Mukund was the son-in-law of
Santosh Dube, a cousin of Anuj
1. Kalika Tiwari v. State of Bihar, 1997 Cri. L.J. 2531 (S.C.).
2. Ali Mirza, (1923) 51 Cal. 265.
3. Hazara Singh, (1946) 25 PaL 277.
4. Chandra Nath, (1931) 1 Luck 543.
5. Harnaman, (1900) PR. No. 6 of 1901.
6. 2007 III Cri. L.J. 3523 (S.C.).
7. (1997) Cri. L.J. 3182 (S.C.).
Prasad. About 7 or 8 months back prior to the incident Mukund had taken a loan of Rs. 10,000/-
from Anuj Prasad. The loan was repaid after some problems. But soon thereafter the accused again
started pestering for loan which was refused. In the evening of 17 January, 1994 Shailja a neighbour
of Anuj Dube went to his house and after having a cup of tea with Sarita left and the compound gate
was locked by Sarita as per usual practice. On 18 Jan., 1994 at about 12 noon Shailja called a
bangle-seller to purchase some bangles and expecting that Sarita may also be interested in
purchasing bangle sent her daughter to call Sarita. On being told that Sarita could not be found
Shailja herself went to her house and found Sarita lying dead on the floor in her bed room with legs
and hand tied. The two children were lying dead on the bed. She found household articles scattered
and steel almirah open. Shailja informed other neighbours. One of them Dr. Awadhesh Singh
informed the police and also gave this message to Anuj Prasad at Bombay. The two appellant
accused were arrested and on their information many articles and the blood-stained dagger used in
murder were recovered. It was found that accused being relative used to visit Dube's house even in
his absence. Secondly, the evidence of neighbours clearly established that being conscious of her
safety the Channel gate fixed in compound wall of Sarita used to be locked in the early hours of
night daily and was opened only when she was assured that the person intending to enter was known
to her. There were many other circumstantial evidence. Presence of both the accused persons at
place of occurrence was proved. The accused persons were alleged to have trespassed into house of
the complainant and committed murder for gain. The appellants were held guilty of dacoity with
murder under Section 397 and Section 302, read with Section 34, IP. Code. It was held that if the
prosecution can successfully prove that the offences of robbery and murder were committed in one
and the same transaction and soon thereafter the properties were recovered, a court may legitimately
draw a presumption not only of the fact that the person in whose possession the stolen articles were
found committed the robbery but also that he committed murder. Further if distribution of looted
properties was proved, as in this case, joint participation of both the accused in commission of the
offence is proved. Therefore the conviction of both the accused was held to be proper.
In Pothakamuri Srinivasulu v. State of Andhra Pradesh,1 accused was alleged to have
committed robbery with murder of deceased by taking away her earstuds by cutting her ear lobes.
Injuries caused resulted in her death. The incident happened in a garden of which accused was
watchman. Deceased immediately after incident narrated incident with name of accused to another
watchman and a shephard. She also narrated incident to her sister who came there on getting
information. All the three are natural witnesses and nothing was shown as to why they would depose
falsely. No suggestion was either made to any witness or doctor that deceased could not have made
a statement because of injuries. Deceased died two days after incident. The fact that deceased wore
earstuds and they were removed from the person of the victim by cutting ear lobes was proved by
dying declaration of deceased wherein she named the accused. It was held that dying declaration
deposed to by independent witnesses and corroborated by the promptly lodged F.I.R. cannot be
rejected on assumption that injured had become unconscious and speechless because of the injuries.
The dying declaration was found absolutely reliable since death is inseparably connected with
removal of earstuds. It was held that accused can safely be held responsible for causing injuries to
deceased and also responsible for removing the earstuds. The fact that recovery of earstuds from
accused was doubtful is inconsequential.
It was held in Ashfaq v. State (Government of NCT of Delhi), 2 that no doubt the provision
postulates only the individual act of the accused to be relevant to attract
1. 2002 Cri. L.J. 3569 (S.C).
2. 2004 Cri. L.J. 936 (S.C).
Section 397 of I.P.C. and thereby inevitably negates the use of the principle of constructive or
vicarious liability engrafted in Section 34 of I.P.C. Consequently, tbc challenge made to the
conviction under Section 397 even after excluding the applicability of Section 34 of I.P.C. would
not be tenable for the reason that each one of the accused in this case were said to have been
wielding a deadly weapon of their own, and thereby squarely fulfilled the ingredients of Section 397
of I.P.C. dehors any reference to Section 34 of I.P.C. In this case though one accused alone was in
possession of country made pistol, the others were also armed with and used their knives and that
knife would equally be a deadly weapon, for the purposes of Section 397, I.P.C. Thus the conviction
under Section 397, I.P.C. itself is sustainable.
It was held in Ashfaq v. State (Govt. NCT of Delhi),1 that the meaning of the word 'uses' for
the purposes of Section 397 of I.P.C. is that robbery being committed by an offender who was
armed with deadly weapon which was within the Vision of the victim so as to be capable of creating
a terror in the mind of the victim and not that it should be further shown to have been actually used
for cutting, stabbing, shooting, as the case may be.
In this case among the accused one was already known to the inmates of the house on account
of having white-washed their house and the accused was for quite some time present in the house
holding them at ransom by using threat to relieve them of the valuables. Therefore the evidence of
prosecution witnesses was quite sufficient to properly identify the accused and it could be relied
upon even in absence of test identification parade. One whose identity was known was initially
traced and the said trail led the authorities to others. Thus it could not be said that the identification
of the accused in the Court without holding identification parade earlier and at the relevant point of
time renders the evidence wholly unreliable.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.—If, at the
time of attempting to commit robbery or dacoity, the offender is armed with any deadly
weapon, the imprisonment with which such offender shall be punished shall not be less than
seven years.
COMMENT
This section punishes the cases of attempt to commit robbery as distinguished from actual
accomplished robbery. It applies where the offenders are armed with deadly weapons though they
do not use them in the attempt to rob or commit robbery. It does not apply to other offenders who in
combination with such persons have committed robbery or dacoity.2
399. Making preparation to commit dacoity.—Whoever makes any preparation for
committing dacoity, shall be punished with rigorous imprisonment for a term which may extend
COMMENT
This section punishes preparation which consists in devising or arranging means necessary for
the commission of an offence. Only 3 cases of preparation are punishable in the Code :
1. preparation to wage war against the Government of India (S. 122)
2. preparation to commit depredation on territories of a power at peace with the
Government of India (S. 126).
3. preparation to commit dacoity. (S. 399).
In the popular sense mere assembling to commit dacoity may be an act of preparation, but a
mere assembly without further preparation is not 'preparation' within the meaning of the section.
Section 402 applies to mere assembling without proof of other preparation. A person may not be
guilty of dacoity yet guilty of
1. 2004 Cri. L.J. 936 (S.C.).
2. Ali Mirza, (1923) 51 Cal 265; Nabibux, (1927) 30 Bom. L.R. 88.
554 [ S. 400
INDIAN PENAL CODE
preparation and not guilty" of preparation yet guilty of assembling.1

In Suleman v. State of Delhi2 five accused persons were alleged to have assembled in a
Dharamshala arid were planning to commit dacoity. PW-2 Head Constable Chand Singh who had
gone near the Dharamshala was examined but he did not depose anything about the conversation of
the accused person. He was accompanied by A.Sri Bhagat Ram but the prosecution did not examine
him as a witness. During cross-examination PW-2 disclosed that when he had gone near
Dharamshala it was dark as there was no light either inside or nearby. Dharamshala had only one
room and it had only one door but no window. He had "stood a little away from the door outside the
room. He had only stated that five persons inside the Dharamshala were planning to rob a petrol
pump that night. He had not narrated what they had spoken or discussed. It was held by the Supreme
Court that it is doubtful that they were speaking so loudly that their conversation could be heard
outside. It is also surprising as to how PW-2 could have reported to S.I. Om Prakash that two of them
had pistols and remaining three had knives. As the evidence discloses the weapons were kept
concealed on their persons and there was complete darkness inside the room. PW-2 had not. £ven
gone near the door. This would clearly indicate that PW-2 was not telling the truth when he stated
that he had heard the accused talking about looting a petrol pump. It is, therefore, hot possible to
sustain the conviction of apellants under sections 399 and 402, Indian Penal Code and the same was
set. aside.
400. Punishment for belonging to gang of dacoits.—Whoever, at any time after the
passing of this Act, shall belong to a gang of persons associated for the purpose of habitually
committing .dacoity, shall be punished with imprisonment for life, - or with rigorous
imprisonment for a term which may extend to ten years and shall also be liable to fine.
COMMENT
This section punishes those who associate with habitual gangs of dacoits. Its object is to break
gangs of dacoits. The fact that women lived with dacoits as their wives or mistresses is not enough to
prove that they belonged to a gang of dacoits. It is essential to prove that the women themselves were
associated with the husbands or protectors for the "purpose of themselves habitually committing
dacoities.3
The expression 'belong' implies something more than, casual association for the purpose of
committing one or two dacoities by a person who was ordinarily living by honest means. It refers to
those persons who. habitually associate with a gang of dacoits and actively assist them in their
operations. But if a person of bad past record participates in the commission of dacoity even on one
occasion, in association with a well known gang of habitual dacoits knowing .them to be such a gang
it may9 reasonably be inferred that he. belpngs to that gang unless there is some' other material on
record to justify an inference that the association was of a casual nature.4
401. Punishment for belonging to gang of thieves.—Whoever, at any time after the
passing of this Act, shall belong to any wandering or other gang of persons associated for the
purpose of habitually committing theft or robbery and not being a gang of thugs or dacoits,
shall be punished with rigorous imprisonment for a term which may extend to seven years,
1. Jain Lai, (1942) 21 Pat. 667. ■

2. AIR 1999 S.C, 1707. .
3. Yclla, (1896) Unreported Cr. C. 863.
4. Bhama Shaw, A.l.R. 1956 Cal. 195.
COMMENT
This section punishes those who constitute a gang of thieves or robbers. It is not necessary to
prove that each individual member of the gang has habitually committed theft or has committed any
particular theft in company with the other members.' Being a member of the gang is enough for
punishment.
555 [ S. 400
INDIAN PENAL CODE
402. Assembling for purpose of commuting dacoity.— Whoever, at any time after the passing of this Act,
shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with
rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
COMMENT
Mere assembly of five or more persons for a common purpose to commit dacoity is
punishable under this section.
OF CRIMINAL MISAPPROPRIATION OF PROPERTY
c 403. Dishonest misappropriation of property.—Whoever dishonestly misappropriates or converts to his
own use any movable property, shall be punished with imprisonment of either description for a term which may
extend to two years or with fine, or with both.
Illustrations
(a) A takes property belonging to Z out of Z's possession in good faith, believing, at the time when he
takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake,
dishonestly appropriates the property to his own use, he is guilty of an offence under this section.
(b) A, being on friendly terms with Z, goes into Z's library in Z's absence and takes away a book without
Z's express consent. Here, if A was under the impression that he had Z's implied consent to take the book for the
purpose of reading it, A has not committed theft. But, if A afterwards sells the book for his own benefit, he is
guilty of an offence under this section.
(c) A and B, being joint owners of a horse, A takes the horse out of B's possession, intending to use it.
Here, as A has a right to use the horse, he does not dishonestly misappropriate it. But, if A sells the horse and
appropriates the whole proceeds to his own use, he is guilty of an offence under this section.
Explanation 1.—A dishonest misappropriation for a time only is a misappropriation within the meaning of
this section.
Illustration
A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing that the
note belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore it to Z. A
has committed an offence under this section.
Explanation 2.—A person who finds property not in the possession of any other person, and takes such
property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it
dishonestly, and is not guilty of an offence ; but he is guilty of the offence above defined, if he appropriates it to
his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means
to discover and give notice to the owner and has kept the property for a reasonable time to enable the owner to
claim it.
What are reasonable means or what is reasonable time in such a case, is a question of
fact.
It is not necessary that the finder should know who is the owner of the property, or that any particular
person is the owner of it ; it is sufficient if, at the time of appropriating it, he does not believe it to be his own
property, or in good faith believe that real owner cannot be found.
Illustrations
(a) A finds a rupee on the high-road, not knowing to whom the rupee belongs. A picks up the rupee.
Here A has not committed the offence defined in this section.
(b) A finds a letter on the road, containing a bank note. From the
direction and contents of the letter he learns to whom the note belongs. He
appropriates the note. He is *liilty of an offence under this section.
1. Beta, (1914) P.R. No. 13 of 1914.
(a) A finds a cheque payable to bearer. He can form no conjecture as
to the person who has lost the cheque. But the name of the person, who has
drawn the cheque appears, A knows that this person can direct him to the
person in whose favour the cheque was drawn. A appropriates the cheque
without attempting to discover the owner. He is guilty of an offence under
this section.
(c) A sees Z drop his purse with money in it. A picks up the purse with
the intention of restoring it to Z, but afterwards appropriates it to his own
use. A has committed an offence under this section.
(d) A finds a purse with money, not knowing to whom it belongs; he
afterwards discovers that it belongs to Z, and appropriates it to his own use.
A is guilty of an offence under this section.
(e) A finds a valuable ring, not knowing to whom it belongs. A sells it
immediately without attempting to discover the owner. A is guilty of an
COMMENT
Ingredients.—The following are essential requirements of criminal misappropriation :
(1) Dishonest misappropriation or conversion of property for a person's own use.
(1) Such property must be movable.
Dishonest misappropriation or conversion to one's own use.—For an offence under this
section it is not necessary that the property should be taken with dishonest intention, the possession
of the property may come innocently and then by subsequent change of intention, or knowledge of
some new facts with which the party was not previously acquainted, the retaining of that property
becomes wrongful or fraudulent.1 The essence of offence under this section is that some property
556 [ S. 400
INDIAN PENAL CODE
belonging to another which comes into the possession of the accused innocently, is misappropriated
or converted by the accused to his own use. There must be actual conversion of the thing
misappropriated to the accused's own use. Mere retaining of an article found does not amount to
criminal misappropriation.2 Misappropriation or conversion need not be permanently, it may be even
for a time. Illustrations (a), (b) and (c) show that the original taking was innocent but the offence of
criminal misappropriation is constituted because of subsequent dishonest conversion or
appropriation. Where 'A' took possession of a stray cattle and it was not shown that the cattle was
stolen property, and he dishonestly retained it, he was liable under this section. 3 But where a persor
found a purse on the pavement of a temple and put it in bis pocket, but was immediately thereafter
arrested, it was held that he was not guilty of crimina misappropriation, for it could not be assumed
that by the mere act of picking up the purse or putting it in his pocket he intended to appropriate its
content! to his own use.4
In Makhulshah,5 the accused purchased for one anna, from a child of ( years, two pieces of cloth valued at fifteen annas, which the child had takei from the house
of a third person. The accused would be guilty for crimina misappropriation if he knew that the property belonged to the child's guardiai and knowing that he dishonestly
misappropriated it. In this case he had reason to believe that the cloth belonged to the child's guardian and knowing that h dishonestly misappropriated it.
'Appropriates to one's own use' or 'misappropriation' means 'setting apart for one's own use' to
the exclusion of others. Thus setting apart of an article for use of some person other than himself and
the true owner may amount to misappropriation.1 In Ram Dayal,2 a girl 'A' found a gold necklace and
she handed it over to 'another girl' C. B, brother of A represented to C that the necklace belonged to a
1. Bhagiram Dome v. Abar Dome, (1888) 15 Cal. 388; Pramode, (1965) 2 Cr. L.J. 562.
2. Abdool, (1868) 10 W.R. (Cr.) 23.
3. Phid Chand Dube, (1929) 52 All. 200.
4. Pbuman, (1907) P.R. No. 11 of 1908.
5. (1886) 1 Weir 470.
man of his acquaintance, and thus took it in his possession. On inquiry by a police officer a few
hours later, B repeated the representation but afterwards gave up the necklace. The representations
were proved to be untrue to the knowledge of the accused B. He was, therefore, held guilty of
criminal misappropriation.
In U Dhar v. State of Jharkhand,3 Bokaro Steel Plant awarded a contract to M/s. Tata Iron,
and Steel Co. Ltd. (TISCO) for certain work. TISCO completed supply part of work and erection
part of work was entrusted to M/s. Tata Construction and Projects Ltd. (TCPL). TCPL in turn
awarded contract to a sub-contractor U.Dhar, the appellant. After completion of the work sub-
contractor demanded payment from TCPL, the contractor. When they failed to receive payment, they
filed a complaint under section 403, 406, 420 and 120-B of Indian Penal Code. The complainant
alleged that TCPL, the contractor has already received the money from SAIL for the work in
question and it has misappropriated the same for its own use instead of paying it to the complainant.
It was held that the contract between Bokaro Steel and TCPL is a separate and independent
contract and the contract between complainant and TCPL is altogether a different contract. The
contractual obligations under both the contracts are separate and independent of each other. The
rights and obligations of parties i.e., the complainant and TCPL are to be governed by the contract
between them for which the contract between TCPL and Bokaro Steel has no relevance. Therefore
even if Bokaro Steel has made the payment to TCPL under its contract, it will not give rise to plea of
misappropriation of money because that money is not the money of complainant. Hence there is no
dishonest intention on the part of TCPL, the contractor and it has not misappropriated the property of
complainant to their own use. The offence of criminal misappropriation is not made out. Moreover
the dispute being about recovery of money was purely of civil nature, hence criminal complaint was
not maintainable.
Moveable property.—Only movable property can be the proper subject-matter of an offence
under this section. A bull set at large in accordance with Hindu religions usage is not 'property' of
any one, and not the subject of ownership by any person, as the original owner has surrendered all
his rights as its proprietor and has given the animal freedom to go anywhere it liked.4
Cases.—Where 'A' had taken loan from 'B' and the debt was paid by 'A' but 'A' paid the money again by mistake and 'B', either at the time of receipt or at any time
subsequently, discovers the mistake and decides to appropriate the money, he would be guilty of criminal misappropriation.5 Similarly, where A, the tenant of B who had
already paid the rent, pays to B the rent for the same month again under the impression that it was not paid by him. B accepted the rent and later on discovered that no rent was
due to him. In this case the retention of money by B after finding out that no rent was due amounts to criminal misappropriation. A paid Rs. 50/- to B to be handed over to a
public servant as a bribe. B does not pay the amount to the public servant and also refuses to return the money to A. Here A will be liable for abetment to commit an offence
under section 161, IP. Code and B will be liable for criminal misappropriation.
1. Ram Dayal, (1886) P.R. No. 24 of 1886.

2. Ibid.
3. 2003 Cri. L.J. 1224 (S.C).
4. Bandhu, (1885) 8 All. 51.
5. Shamsoondur, (1870) 2 N.W.P. 475.
557 [ S. 400
INDIAN PENAL CODE
It was held in Gadgayya v. Purun Siddeshwar,1 that the property of an idol or a temple must
be used for the purposes of that idol or temple and any other use of that property, being dishonest,
would amount to criminal misappropriation. Where A is employed to collect money and he collects
and retains money so collected from the debtor of his master, because money is due to him as wages,
he would be guilty under this section.2
In Narain Singh v. State of M.P.,3 it was held that where the accused happened to be Chairman
of a Samiti and he retained a certain amount from money which he had recovered from members of
the Samiti and retention continued even after he ceased to be Chairman, the act of retention would
not amount to criminal breach of trust, because an offence of criminal breach of trust involves
entrustment which is absent in this case. Amounts recovered from members were dues and receipts
were issued to them in respect of the same, the act of the accused would amount to criminal
misappropriation punishable under section 403 of the act.
In Ram Krishna,4 the accused was a Government' servant employed to receive money on
behalf of the Government and pay it into treasury. He retained some money for several months but
on fearing detection paid the amount into treasury, making a false entry at the time in his books with
a view to avert suspicion. He was held guilty of criminal misappropriation. Where a judgment
debtor, whose standing crops were attached, harvested them while the attachmenl was in force, he
was liable under this section. In a case where B and C were on the railway platform. B had a ticket
from Allahabad to Delhi and C had i ticket from Allahabad to Kanpur. B, an illiterate woman handed
over her tickei to C in order to ascertain whether she had a right ticket. C under the pretence of
returning B's ticket substituted therefor his own ticket and kept B 's ticket. C was held liable for
criminal misappropriation and not for cheating.5 In Tomsons case a lady intending to buy a railway
ticket, finding a crowd at the ticke window asked A who was nearer the window, to purchase a ticket
for her an< handed him a ten rupee note. A took the note intending to steal it, and instea< of buying a
ticket with the money ran away with it.
It was held in Tomson,1 that A would be guilty of theft because the lad; had not abandoned her
possession over the currency note but she had only usei the hand of the stranger A in place of her
own hand to buy the ticket. It i submitted that the above view of the Eglish Court is not in conformity
with th codified provisions of the offence of theft under section 378, of the Indian Pern Code. The
essential ingredients of theft are that dishonest intention at the tim of moving of property from
another's possession is necessary and here moving amounts to taking. A has not taken the ten rupee
note from the possession of the lady with dishonest intention. She has voluntarily handed over the
1. (1897) Unrep. Cr. C. 919.
2. Bissessur Roy, (1869) 11 W.R. (Cr.) 51.
3. 1986 Cri. L.J. 1481 (M.P.).
4. (1888) 12 Mad. 49.
5. Raza Hussain, (1904) 25 A.W.N. 9.
6. 32 L.T. (M.C.) 50.
7. Ibid.
possession to A for purchasing the ticket. Money has not been taken by A without consent of the
lady. Therefore A is guilty of criminal misappropriation because he used the money, the possession
of which has come to him innocently but he subsequently misappropriated it. The problem is fully
covered by section 403 of Indian Penal Code. According to some A may be guilty of criminal breach
of trust but in my view there is no entrustment of property misappropriated.
In Mary v. Green,1 a person purchased at a public auction, a bureau in which he afterwards

discovered in a secret drawer, a purse containing money, which he appropriated to his own use. At
the time of sale neither buyer nor seller knew that the bureau contained anything whatever. If the
buyer had express notice that the bureau alone and not its contents, if any, was sold to him, or if he
had no reason to believe that nothing more than the bureau itself was sold, the appropriation of the
money was a felonious taking and he would be guilty of larceny. But if the buyer had reasonable
ground for believing that he bought the bureau with its contents, if any, he had a colourable right to
the property and would not be liable for larceny.
Explanation 1.—Explanation No. 1 refers only to those cases where there is a "dishonest
misappropriation" of property and makes it clear that section 403 includes temporary as well as
permanent misappropriation of that description.2
Explanation 2.—This Explanation makes it clear that thing abandoned cannot form a proper
subject of an offence under this section. 3 For constituting an offence under this section property
appropriated must be owned by somebody. This explanation requires finder of goods, before
appropriating the property found, to make attempt to find the owner, if they have means of so doing.
The finder must wait upto a reasonable time to allow the owner to claim the property, before he
appropriates it. In Sita,4 the accused found a gold mohur on an open plain and sold it the next dayyto
a shrof for "its full value and appropriated the sale proceeds. The accused was not guilty of this
558 [ S. 400
INDIAN PENAL CODE
offence because there was no information as to die circumstances under which the coin was lost and
it was probable that the property in the coin had been abandoned by the original owner. Similarly, if
A finds a hundred rupee note over the road and uses it, he will not be liable unless he can reasonably
trace the owner of the currency note.
Distinction between theft and criminal misappropriation.— (1) In theft the offender
dishonestly takes property Which is in the possession of a person out of that person's possession and
the offence is complete as soon as the offender moves the property.
Criminal misappropriation takes place even when the possession has been innocently come
but where, by a subsequent change of intention or from the knowledge of some new fact, with which
the party was not previously acquainted, the retaining becomes wrongful and fraudulent.
(2) The dishonest intention to appropriate the property of another is common to theft as to
criminal misappropriation. But the intention in theft is sufficiently manifested by a moving of the
1. (1841) 7 M. & W. 623.

2. Jhandu, (1886) P.R. No. 27 of 1886.
3. Bandhu, (1885) 8 AH. 51.
4. (1893) 18 Bom. 212.
property and in criminal misappropriation it is carried into action by an actual misappropriation or

conversion.
404. Dishonest misappropriation of property possessed by deceased person at the time of
his death.—Whoever, dishonestly misappropriates or converts to his own use property, knowing
that such property was in the possession of a deceased person at the time of that person's
decease, and has not since been in the possession of any person legally entitled to such
possession, shall be punished with imprisonment of either description for a term which may
extend to three years and shall also be liable to fine ; and if the offender at the time of such
person's decease was employed by him as a clerk or servant, the imprisonment may extend
to seven years.
Illustration
Z dies in possession of furniture and money. His servant A, before the money comes into the
possession of any person entitled to such possession, dishonestly misappropriates it. A has committed the
offence defined in this section.
COMMENT
This section is enacted to provide protection to a special kind of property. It protects the
property during an interval which elapses between the time when the possessor of the property dies
and the time when it comes into the possession of some person or officer authorised to take charge of
it.1
There is some difference of opinion on the point whether the 'property' referred to in this
section means both movable and immovable property or only movable one. The Bombay 2 and
Madhya Pradesh3 High Courts are of the view that property here only means movable property; but
Allahabad High Court holds a contrary opinion.4
OF CRIMINAL BREACH OF TRUST
405. Criminal breach of trust.—Whoever, being in any manner entrusted with property,
or with any dominion over property, dishonestly misappropriates or converts to his own use
that property, or dishonestly uses or disposes of that property in violation of any direction of
law prescribing the mode in which such trust is to be discharged, or of any legal contract,
express or implied, which he has made touching the discharge of such trust, or wilfully suffers
any other person so to do, commits "criminal breach of trust".
Explanation 1.—A person being an employer of an establishment whether exempted under Section
17 of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, or not, who deducts the
employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family
Pension Fund established by law for the time being in force, shall be deemed to have been entrusted with
the amount of the contribution so deducted by him and if he makes default in the payment of such
contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the
amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.—A person, being an employer, who deducts the employee's contribution from the
wages payable to the employees for credit to the Employees' State Insurance Fund held and administered
by the Employees' State Insurance Corporation established under the Employee's State Insurance Act,
1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted
by him and if he makes default in the payment of such contribution to the said Fund in violation of the said
Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction
of law as aforesaid.
Illustrations '
559 [ S. 400
INDIAN PENAL CODE
(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs
him to divide the effects according to the will, and appropriates them to his own use. A has committed
1. M. & M. 364.
2. Girdhar Dharamdas, (1869) 6 B.H.C. (Cr. C.) 33.
3. Dhulji v. Kanchan, A.l.R. 1956 M.B. 49.
4. Daud Khan, (1925) 24 A.L.J.R. 153.
criminal breach of trust.
(b) A is a warehouse-keeper. Z, going on a journey, entrusts his furniture to A, under a contract
that it shall be returned on payment of a stipulated sum for warehouse-room. A dishonestly sells the goods.
A has committed criminal breach of trust.
(c) A, residing in Calcutta, is an agent for Z, residing at Delhi. There is an express or implied
contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's
direction. Z remits a lakh of rupees to A, with directions to A to invest the same in company's paper. A
dishonestly disobeys the directions and employs the money in his own business. A has committed criminal
breach of trustt
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more
for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in Bank of
Bengal, for Z, instead of buying Company's paper, here, though Z should suffer loss, and should be
entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has
not committed criminal breach of trust.
(e) A, a revenue officer, is entrusted with public money and is either directed by law, or bound by a
contract, express or implied, with the Government, to pay into a certain treasury all the public money
which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly
misappropriates the property. A has committed criminal breach of trust.
COMMENT
Ingredients.—The following are essential elements of the offence of criminal breach of trust :
(1) Entrusting any person with property or with any dominion over property;
(1) The person entrusted—
(a) dishonestly misappropriates or converts to his own use that property; or
(b) dishonestly uses or disposes of that property or wilfully suffers any other
person so to do in violation—
(i) of any direction of law prescribing the mode in which such
trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such
trust.
In any manner entrusted with property.—For application of this section there must be
entrustment of property. Entrustment means handing over the possession of property for some
purpose which may not imply the conferring of any proprietary right.' To constitute the offence
under this section there must be dishonest misappropriation by a person in whom confidence is
placed as to the custody or management of the property in respect of which the breach of trust is
charged. The ownership of beneficial interest in the property in respect of which criminal breach of
trust is committed, must be in some person other than the accused and the latter must hold it on
account of some person or in some way for his benefit. 2 A partner in a partnership firm can be held
guilty of criminal breach of trust in respect of a partnership property. 3 A trust implies a confidence
placed by one man in another. Such confidence must be voluntarily and freely placed. If confidence
is obtained by playing trick, there is no consent and no true entrustment. In order that money be
"entrusted" to the accused person, it should be transferred to him in circumstances which show that,
notwithstanding its delivery, the property in it continues to vest in the prosecutor and the money
remains in the possession
1. Per Lord Haldane in Lake v. Simmons, 1927 A.L.J. 487.

2. CM. Narayan, A.I.R. 1953 S.C. 478.
3. Devakmandan, (1958) 60 Bom. L.R. 1413.
560 INDIAN PENAL CODE IS
and control of the accused as a bailee, and in trust for the prosecutor as a bailor be restored to him
or applied in accordance with his instructions.1 In Pushpa Km v. State of Sikkim,2 the accused was
a conductor of the bus belonging to the Sikl Nationalised Transport and in such capacity had
collected bus fares and frei charges amounting to more than Rs. 2,000. He did not render any
accounts to transport authorities nor did he deposit any amount with them despite seve reminders.
The High Court held that one of the most important elements 'entrustment' is that the property in
respect of which criminal breach of trust alleged to have been committed must have been made
over or transferred or ham over by the aggrieved person, who continues to be the owner thereof, to
accused. In this case there was no entrustment because the amount was not rm over or transferred
or handed over by any one on behalf of Sikkim Transport to i accused. It is submitted that the
above view of High Court is not correct in view the decision of the Supreme Court in Som Nath v.
State of Rajasthan? It was hi in that case that a person authorised to collect money on behalf of
another entrusted with the money when the amounts are paid to him, and though the pers paying
may no longer have any proprietary interest, nonetheless, the person whose behalf it was collected
becomes the owner as soon as the amount is hand over to the person authorised to collect on his
behalf. Thus in view of the decisi of the Supreme Court the accused conductor was entrusted with
the amounts money as soon as he collected the same on behalf of the Sikkim Transport. Whe a
person obtained utensils representing that he was turner and would return t utensils on the very day
after repairing them, but he did not return the utensils a it was discovered that he was not turner, he
would be guilty of cheating and not an offence under this section.4
'A' was the President of a Co-operative Society and B was the Sales Clerk the said Society.
The said Society was entitled to take delivery of levy sugar fro the Central Supplies Corporation
on payment in cash for distribution to certa ration card holders registered with the Society. A and
B took delivery of 20 bags levy sugar from the Central Supplies Corporation on behalf of the
society c payment of sale price therefor. The entire payment was made by A to be recoven later
from the sale of levy sugar by the Society. A and B sold 10 bags of tl aforesaid levy sugar to
persons other than the ration card-holders. In this case A ar B both will be liable for criminal
breach of trust under Section 405 because the have disposed of 10 bags of sugar in violation of
trust.
Property.—In order to constitute an offence under this section property me be movable or
immovable, because the word 'property' is used in this sectic without any adjective. But it must be
a property which belonged to the complainan It does not matter that the complainant on whose
behalf the property is entrusted i the owner of it or not provided there is entrustment of property.5
Dominion over property.—For an offence under this section either th property must have been entrusted to the accused or he must have dominion ove it. A
person is said to be having dominion Over property when he supervises, c exercises control over the property or is in the charge of that property. The Inspectc of Water
Works whose duty is to supervise and check the distribution of water fror the Municipal Water Works is said to be having dominion over the water belongin to his
employer. Therefore, if such Inspector deliberately misappropriates such wate for his own use or for the use of his tenants for which he pays no tax and gives no
information to his employer he would be guilty of criminal breach of trust.'
So far as the criminal liability is concerned there is difference between a person entrusted
with property and one having control or general charge over the property. In the case of
1. Thakarsi, A.l.R. 1949 Nag. 620,
2. 1978 Cri. LJ. 1379.
3. 1972 Cri. L.J. 897.
4. Kundan Tdlumal, A.l.R. 1942 Kar. 288.
5. Dahyalal Dalpatram, (1959) 61 Bom. L.R. 885.
entrustment, the person will be liable to account for the property if it is found missing, without any
further proof or requirement as to actual misappropriation. In the latter case, the person will be
liable only when it is shown that he misappropriated the property or was a party to user or disposal,
etc. of that property by any other person.2
P, a girl was married to S and a dowry of more than Rs. 60,000/ in form of ornaments,
clothes etc. were given by P's father at the time of their marriage. The possession of the entire
dowry was taken by S, his father and brothers. Subsequently ■ P was turned out by S, his parents
561 INDIAN PENAL CODE IS
and brother without returning her ornaments and clothes etc. Repeated demands were made and
ultimately they refused to return. P filed a complaint that S and his parents were wilfully detaining
the entire articles including ornaments and clothes, which were given to them by P's father at the
time of her marriage, were dishonestly using and converting the articles to their own use and were
still in possession of these articles which belonged to her exclusively. In defence, it was argued
that the accused had become co-owners of the entire property, hence they are not liable to return.
In this case the dowry in the form of ornaments and clothes etc. was given to P by her father at the
time of her marriage. It was her stridhan property belonging exclusively to P. The accused persons
cannot be said to be co-owners of the property. P's husband S, his father and brother were only
having dominion over that property which they converted to their own use. They also refused to
return the property. Therefore, they would be liable under section 405, Indian Penal Code for
criminal breach of trust.
In M.G. Mohat v. Shivaputrappa and another3 the respondent had pledged some gold
articles with the State Bank of India branch of Hunagund for securing loan of Rs. 1,500/-. When he
returned the amount of loan he found that the articles returned to him were not those that he had
pledged with the bank. He charged the bank for breach of trust. It was held that branch manager,
who had power to transact business on behalf of the bank had dominion over the pledged articles.
The accountant and head cashier were minor functionaries who only carry on their functions
through manager and under his directions, therefore manager is guilty of jbreach of trust.
In Anil Saran v. State of Bihar4 the question was whether the partner of a firm can be
charged of misappropriating the property of the firm. It was held by the Supreme Court that
partnership firm is not a legal entity but a legal mode of doing business by all the partners, until the
firm is dissolved as per law and the accounts settled, all partners have dominion in common over
the property and funds of the firm. Only after the settlement of accounts and allotment of
respective shares, the partner become owner of his share. Therefore where a partner is entrusted
with property under special contract, such property is held by him in fiduciary capacity and if he
misappropriates it he will be guilty of criminal breach of trust under Section 406, IP. Code.
Dishonestly misappropriates or converts to his own use.—Dishonest intention is the
essence of this offence. But appropriation of a property in assertion
1. Biinala Charan Roy, (1913) 35 All. 361.

2. Kesar Singh, 1969 Cri. L.J. 1595.
3. 1984 Cri. L.J. 969 (Kart.).
4. 1996 Cri. L.J. 408 (S.C.).
562
S. 405 1 OF OFFENCES AGAINST PROPERTY
of a claim, however, unfounded does not constitute an offence under this section. Mere retention of
goods by a person without misappropriation does not amount to criminal breach of trust. 1 Where a
person receives money which he is bound to account for and does not do so, he will be liable under
this section, although no precise time can be fixed at which he was duty bound to pay over the
money.2 In a case A had left his box in B's house and the latter refused to allow A to remove the box
unless debt due to B by A was paid, it was held that this offence was not committed. 3 In a case A
receives Rs. 5,000 from B for keeping in safe custody. A invests the money in his own business.
After a year B demands his money back which is promptly returned back by A. Here A will not be
liable for criminal breach of trust, because although the money is invested by A but he promptly
returns and as such there is no dishonest misappropriation.
In Pratibha Ram v. Suraj Kumar* the appellant alleged that her stridhan property were
entrusted to her in-laws which they dishonestly misappropriated for their own use. She made out a
clear, specific and. unambiguous case against her in-laws. The accused were held guilty of this
offence and she was held entitled to prove her case and no court would be justified in quashing the
complaint.
In Kailash Kumar Sanwatia v. State of Bihar,s the appellant went to the State Bank of India
for taking two bank drafts of Rs. 75,000/- each. His servant Indra Ram was also with him. The
appellant had carried Rs. 1,50,200/- with him out of which 75,100/- was of Mahabir Bhandar of
which he was the owner, while the balance of Rs. 75,100 was of Swastik Bhandar belonging to the
brother of appellant. The total amount was handed over to accused, Ganauri Sao for the purpose of
counting at the instance of accused Gautam Bose, the Head Cashier. The cash peon told him that he
would count the money and return the bag in which the money was carried at 2 p.m. Informant
handed over cash vouchers duly filled in to Amit Kumar Banerjee an officer of the bank and returned
to his shop on being told that the drafts will be handed over around 2.00 p.m. Around 1.00 p.m. the
peon of the bank Jagdish came to his shop and told him that the money handed over by him was
missing from the cash counter. On hearing this both informant and his brother rushed to the bank
where they were told that a complaint had already been lodged by the Bank Manager regarding
missing money. Police had arrived and Ganauri Sao admitted that he was counting the money
handed over by the informant but when he went outside for a short time, during that time the money
had been taken away by some one.
It was held that even if it was proved as contended by learned counsel for the appellant that
the money was entrusted which fact is borne out by the admitted case about missing of money from
the cash counter of the bank, one factor which needs to be decided is whether the accused has
dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used
or disposed of that property. As presented by the prosecution, the money was taken away from the
cash counter. It is not the case of prosecution that money which was given to the accused Gautam
Bose and the cash peon to obtain bank drafts was taken away by accused Gautam Bose or the Cash
peon Ganauri Sao. Because of an intervening situation, the disappearance of the cash due to theft by
some body else the bank drafts could not have been prepared and handed over to the appellant. Even
if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If
due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated
from carrying out the job, that will not bring in application of section 405 of Indian Penal Code or
1. Nirmalabai, A.l.R. 1953 Nag. 813.
2. Welch's case, (1846) I Den 199.
3. Adinarayan Iyer, (1907) 17 M.L.J. 413.
4. 1985 Cri. L.J. 817 (S.C).
5. 2003 Cri. L.J. 4313 (S.C).
section 409 of Indian Penal Code, unless misappropriation or conversion to personal use or disposal
of property is established.'
Dishonestly uses or disposes of that property.—An offence under this section consists of
any one of four positive acts, namely, misappropriation, conversion, user, or disposal of property. A
user in order to be an offence under this section must cause substantial or appreciable loss to the
owner of the property or gain to the accused. Where a printer uses certain blocks entrusted to him to
print the complainants' catalogue for the purpose of printing a rival firm's catalogue, he would be
guilty of criminal breach of trust. 2 A asks B. a jeweller to make him a gold ring and pays him the
cost of the gold required for the ring. B neither delivers the ring nor returns the money. Here B
would be liable under this section.
Trust.—A trust is an obligation annexed to the ownership of property, and arising out of a
confidence reposed in and accepted by him for the benefit of another or of another and the owner. If
there is no entrustment, there is no breach of confidence or trust. The trust need not to be in
furtherance of any lawful object.
Partner.—A partner would be liable for an offence under this section if it can be proved that
he was in fact entrusted with the partnership property or with a dominion over it, and he has
dishonestly misappropriated it or dishonestly converted to his own use. 3 It was observed in R.K
Dalmia v. Delhi Administration,4 that where one partner is given authority by the other partners to
collect money or property of the firm, he is entrusted with dominion over that property and if he
dishonestly misappropriates it, he will be liable under this section.
Pledge.—In Nemchand Parakh,5 the accused in the course of his money-lending business
pledged the goods which were pledged to him. He sub-pledged on the same amount and on the same
dates, as the pledge made to him with his financers to raise capital at a lower rate of interest. There
was no express stipulation in the contract taking away the right to make sub-pledges and there was
no evidence to show that the sub-pledges were made with dishonest intention. It was held that the
accused was not liable under this section and that even if the accused had no right to make the
pledge, he must be deemed to have acted honestly under a mistaken belief as to the extent of his right
as a pledgee, and the sub-pledges of goods could not, in the circumstances, be regarded as amounting
to an offence of criminal breach of trust.
Wilfully suffers any other person so to do.—This expression means that the acts
constituting criminal breach of trust have been done deliberately or intentionally and not by accident
or inadvertence.6
Cases.—In Gurumahanty Appalasamy,1 the accused was entrusted with a
1. Kailash Kumar Sanwatid v. State of Bihar, 2003 Cri. L.J. 4313 (S.C).
2. Keshab Chandra Boral v. Nitya Nand Biswas, (1901) 6 C.W.N. 203.
3. Okhoy Coomar Shaw, (1874) 13 Beng L.R. 307.
4. A.l.R. 1962 S.C. 1821.
5. A.l.R. 1938 Mad. 639.
6. Kedarnath, A.l.R. 1965 All. 233.
7. (1894) 1 Weir 464.
564
pair of ear-rings for the purpose of raising Rs. II- only upon them for the complainant's use; but he
pledged them for a larger amount, gave Rs. II- to the complainant and applied the additional amount
to his own use without telling him what he had done. He was held liable for an offence under this
section.
In Jage Ram? the accused borrowed a cycle from the complainant promising to return the
same within a period of two or three days. He failed to return the cycle as promised, disposed of the
same and appropriated the sale proceeds to his own use. It was held that the relationship between
the complainant and the accused was that of a bailor and bailee as the complainant had given his
cycle to the accused for specific purpose and for a specific time upon contract that after the expiry
of the said period the cycle would be returned to him, and in disposing of the cycle dishonestly and
appropriating the money to his own use, the accused was guilty, of criminal breach of trust.
In Shailendra Nath Mitter? the manager of a bank received Government Promissory Notes
from a constituent as security for over-drafts granted to the latter. Before the overdrafts were
satisfied the manager returned the promissory notes to the constituent. The constituent repledged
the same notes to another bank. Although the notes were returned to the constituent but in the
account book of the bank the notes were shown as still deposited. The manager was liable for the
offence of criminal breach of trust, and the constituent was liable for abetment of that offence.
Violation of legal contract.—The rule is that where a person takes goods on approval under
an agreement that property therein was to pass only if he exercised his option to take them and paid
cash in full for certain goods and in part for others, the trust continues till the option is exercised
and cash payments made and such person shall be liable for criminal breach of trust if he sells them
without such payment.3 In Moses? the accused hired a motor car of B under a hire-purchase
agreement, which provided that until the car was fully paid for by the accused it was to remain the
"absolute property of B", and the accused agreed at the time of hire-purchase agreement that "he
would not assign, underlet oi part with possession" of the car in any way. While the agreement was
in fora the accused pledged the car to three different persons on three different occasions The
accused was held liable for the offence of criminal breach of trust, as th< pledging of the car by him
was a violation of the legal contract made by hin in regard to the hire of the car and that violation
amounted to dishonest intentior X hires a scooter from Y for seven days for his own use but lends it
to hi friends Z, who uses it. Z without the knowledge of X pledges the scooter wit P against a loan
of Rs. 500/-. X has to redeem the pledge with considerabl difficulty and could return it to Y after a
month from the date of hire and th; too with further higher charges. In this case X will be liable for
criminal breac of trust for wilfully allowing his friend Z to use the scooter in violation of tl contract
made with Y.
In Madho Singh v. Kamla Devi,5 the respondent's husband was a memb of a Housing Society
and he had entered into an agreement with the socie whereby the society agreed to sell a plot
measuring 3600 sq. ft. for a sum
1. (1951) 4 Punj. 286.
2. (1943) 1 Cal. 493.
3. Khitish Chandra Deb Roy, (1924) 51 Cal. 796.
4. (1915) 17 Bom. L.R. 670.
5. 1992 Cri. L.J. 1858 (Bom.).
rupees 12,200/-. The money was paid. After the death of her husband Kamla Devi was substituted
as a member of the Society in place of her deceased husband. The Society sold half of the plot to a
third party and handed over to the complainant Kamla Devi a proposed sale-deed for 1800 sq. ft.
only. Kamla Devi filed a complaint under section 405 IP. Code. It was held that though civil
remedy was available in this case but criminal court could not be prevented from taking cognizance
of offence under section 405 IP. Code.
In Balram Singh v. Sukhwant Kaur,x the respondent was turned out of the house by the
husband and she claimed the return of her stridhan property much after.expiry of period of
limitation prescribed under section 468 (2) (c) of the Code of Criminal Procedure. But her stridhan
entrusted to her husband and relations was not returned in spite of her repeated requests. It was
held that the offence of criminal breach of trust under section 406 is a continuing offence and it
gives cause of action until stridhan is returned.
Explanation 1.—This explanation makes the employer liable for dishonest misappropriation
of employees' contribution to Provident Fund or Family Pension Fund because he is deemed to
have been entrusted with the amount of contribution so deducted.
Explanation 2.—Explanation No. 2 makes the employer liable for dishonest
misappropriation of employees' contribution to the Employees' State Insurance Fund because he is
deemed to -have been entrusted with the amount of contribution so deducted by him.
Distinction between Criminal Misappropriation and Criminal Breach of Trust—(1) In
criminal breach of trust there is conversion of property held by a person in a fiduciary capacity i.e.
the property is entrusted to him. In case of criminal misappropriation the possession of property
which is appropriated may come in any way.
(2) In criminal breach of • trust, there is some kind of contractual relationship between the
parties either express or implied, but in criminal misappropriation there is no such relationship.
(3) In criminal breach of trust, the offender is lawfully entrusted with the property and he
dishonestly misappropriates the same or wilfully suffers any other person to do so, instead of
discharging the trust attached to it. In criminal misappropriation the property comes into the
possession of the offender by some casualty i.e. accidently or otherwise and then it is converted by
him to his own use.
It was held in Employees' State Insurance Corporation v. S.K. Aggarwal,2 that Directors of
the company would not be covered by the definition of "principal employer" under section 2(17) of
the Employees' State Insurance Act. It was further held that in the. absence of any express provision
in the Indian Penal Code incorporating the definition of "principal employer" in explanation 2 •to
section 405, this definition cannot be held to apply to the term 'employer' in explanation 2. The
term employer in explanation 2 to section 405 must be understood as in ordinary parlance. In
ordinary parlance it is the company which is the employer and not its directors either singly or
collectively. Therefore the director of a company cannot be held liable for criminal breach of trust
in case of default.in .payment of contribution to Employee's State Insurance^"
406. Punishment for criminal breach of trust.—Whoever commits criminal breach of
trust shall be punished with imprisonment of either description for a term which may extend
1. 1992 Cri. L.J. 792 (P & H). • 2.

AIR 1998 SC. 2676.
to three years, or with fine, or with both.
COMMENT
It was held in S.K. Alagh v. State of U.P. and others? that where demand drafts were drawn
in the name of company for supply of goods and neither the goods were sent by the company nor
the money was returned, the Managing Director of the Company cannot be said to have committed
the offence under Section 406, IP. Code. It was further pointed out that in absence of any provision
laid down under statute, a Director of a Company or an employee cannot be held vicariously liable
for any offence committed by company itself.
407. Criminal breach of trust by carrier etc.—Whoever, being entrusted with property
as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust, in respect of
such property, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
COMMENT
This section punishes those who commit breach of duty in respect of property entrusted to
them under a contract express or implied, for safe custody or carrying from one place to another.
Carrier.—Carrier is a person who undertakes transportation of goods of others or hire from
one place to another.
Wharfinger.—A wharfinger is one who owns or keeps a wharf which is a broac place near
some creek or haven, to lay goods and wares on that which are brought tc or from the water.
Warehouse keeper.—A warehouse keeper is one who keeps a warehouse whicl is a house
to deposit or keep wares in. Ware is an article of merchandise fabric especially in the plural, goods,
commodities, merchandise.
408. Criminal breach of trust by clerk or servant.— Whoever, being a clerk or servar
or employed as a clerk or servant, and being in any manner entrusted in such capacity wit
property, or with any dominion over property, commits criminal breach of trust in respect c
566
that property, shall be punished with imprisonment of either description for a term which ma
COMMENT
This section punishes a clerk or a servant for criminal breach of trust regardin the property
entrusted to them in the capacity of a clerk or servant. Section 381 punishe a clerk or servant for
theft. Here the property is entrusted to them, if they misuse it the are punished.
Clerk.—A clerk does a white collar-chair job for writing purposes.
Servant—Usually for multifarious purposes where the skill and labour of tl Master is not
enough to fulfill the task he takes assistance of others who are known <• servants. The master-
servant relationship is created whereby master controls the moc of working of the servant in return
of wages. The surreptitious withdrawal by tl employee of his security deposit before accounts have
been adjusted amounts to crimin breach of trust on the part of the employee. 2 If a servant receives
money on h employer's account and embezzles it, he is guilty of felony though his employers hai no
right to it and are wrong-doers in receiving it.3
X, a paid supervisor of a cooperative society, debited Rs. 2 as the pay of sweeper woman, took the thumb impression of his nephew against the debit end
certified the thumb impression to be that of the sweeper woman and appropriated tl
1. 2008 n Cri. L.J. 2256 (S.C.).

2. Surendra Nath Basu, (1938) 2 Cal. 257.
3. Beacall, (1824) 1 C. & P. 454.
S. 409 ]
amount to himself. It was held that X was guilty of criminal breach of trust as he misappropriated
the amount and of forgery under section 467 as he caused to be affixed to the debit entry the thumb
impression of his nephew and of falsification of accounts under section 477-A as he made a false
debit entry.1
In respect of commission or presents given to the servant while making payments on behalf
of his master, the law is : if the account is an open one in the account of which the items have never
been checked or settled and if the transaction amounts to a taxation of the bill and a reduction of the
price by the servant, it is obvious that the servant obtains the reduction for his master that the money
in his hands always remains the master's, property, and that if he appropriates it, he steals it. But if
the master himself has settled the account with the tradesman for a specific sum and he sends the
servant with that money and after such payment if the servant is paid some comission or presents by
the tradesman and the servant keeps that present or money with himself, it is not stealing because he
has no intention to steal the presents or money given to him by a person whom he believes to have
right to give. Though as per strict doctrine of Court of Chancery the servant is bound to account the
whole transaction to his master but he cannot be convicted of criminal breach of trust merely
because by mere equitable doctrine of the Court of Chancery, it was obligatory upon him to render
an account.2
409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in
any manner entrusted with property, or with any dominion over property in his capacity of a public
servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits
criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to
fine.
COMMENT
The persons having a fiduciary relationship between themselves have a greater responsibility
for honesty as they have more control over the property entrusted to them, due to their special
relationship. Under this section the punishment is severe and persons of fiduciary relationship have
been classified as public servants, bankers, factors, brokers, attorneys and agents.
A mere carelessness to observe the rules of treasury ipso facto cannot make one guilty of
criminal breach of trust. There must be something more than carelessness, i.e., there should be
dishonest intention to keep the Government out of the moneys. 3 Where under the rules, a public
servant is required to lodge in the treasury any Government money in excess of that shown due to
Government by the registers in his hands and the public servant removes the excess from the office
cash book, he is guilty of misappropriation.4
Moneys paid to Post Master for money-order are public money; as soon as they are paid they
cease to be the property of the remitters and a misappropriation of such moneys will fall under this
section.5 It is not necessary under the section that the property in respect of which the offence is
committed must be shown to be property of the State.
A clerk in a record room made over a document forming part of record in his custody to a
person who was entitled to the document, but who would otherwise have had to present an
application on stampdd paper in order to secure its return in a legal manner. It was held that the
clerk was guilty under this section.6
1. Keshavrao, (1934) 36 Bom. L.R. 1120.

2. Per Petheram, C.J., in Imdad Khan, (1885) 8, All. 120.
3. Lai Raoji, (1928) 30 Bom. L.R. 624.
4. Daya Shanker, (1926) I Luck. 345.
5. Juala Prasad, (1884) 7 All. 174 (KB:).
6. Ganga Prasad, (1904) 27 AH. 260.
A Post Master, who paid at a lesser rate the amount due to certain cash certificate holders and
appropriated the balance himself, was held to be guilty under this section. 1 A Sanitary Inspector
misappropriated night soils, he was held guilty under Section 409.2
S. 409 ]
Disobedience of an order for destroying the goods by misappropriating them for own use or
for selling them for gain is an offence covered by the section. There is a distinction between an
intention to destroy and to abandon and actual destruction and abandonment. In the former case the
owner maintains his right of ownership and the right subsists until the abandonment or destruction is
completed. So it's improper use by the person entrusted to destroy makes him guilty of the offence
of criminal breach of trust.3
A certain consignment of rice lay unclaimed at the docks and was advertised for sale by the
Port Commissioners. But the rice was declared to be unfit for human consumption by the Health
Authorities of Calcutta Corporation and was ordered for destruction by the accused who were
Inspectors in that department. They sold the rice to third party and retained the proceeds of such
sale. It was held that they were not guilty of any offence under the Code, though they might have
been guilty of infringing a departmental rule. 4 The mere passing of of an incorrect Balance Sheet by
the directors does not amount to an offence under this section.5
Where a person is alleged to have committed an offence of criminal breach of trust, then it
must be established beyond reasonable doubt that the thing in respect of which offence has been
committed was entrusted to him. Where it is said that the money was delivered the delivery of
money does not amount tc entrustment because entrustment is possible only by the owner or person:
authorised by him and not by any body else. If there is no evidence to establisl the entrustment of
money or thing there can be no offence of criminal bread of trust.6
In case the appellant, a public servant, was incharge of Courty Ramnaga He was entrusted
with some government money which he used for his person; gain. When it was found that the
appellant had misappropriated money, I deposited the money to supply the deficiency. He was held
to have committe breach of trust with respect to the money over which he had complete dominie by
putting the same to his personal use.7
In State of M.P. v. Prem Pal? Prem Pal was a branch Post Master at Gilloi One Gokul Prasad
had a savings account in that Post Office. An amount Rs. 675/- was in balance in the savings
account of Gokul Prasad on 19.4.19 which was duly accounted by the Post Master. Thereafter
Gokul Prasad h deposited a sum of Rs. 2,328/- on different dates which was not accounted : and was
not credited to his savings account. This amount was deposited by < Post Master before filing of
challan.
It vas held that the Post Master was liable under Section 409 for crimi breach of trust and he
cannot be acquitted on the ground of depositing
1. Sita Ram, (1919) 42 All. 204.
2. Horilal, (1922) 45 All. 281.
3. Jang Bahadur Singh, A.l.R. 1950 Nag. 957.
4. Wilkinson, (1898) 2 C.W.N. 216.
5. Giles Seddow v. Loane, (1910) 11 W.L.J. 624.
6. State of U.R. v. K.P. Jain, 1984 Cri. L.J. 76 (All.).
7. Vishwa Nath v. State of Jammu and Kashmir, 1983 Cri. L.J. 231 (S.C).
8. 1991 Cri. L.J. 2878 (MP.).
S. 409 c
, 409 ] OF OFFENCES AGAINST R91
PROPERTY
appropriated amount before challan.
In Bagga Singh v. State of Punjab,1 the appellant was a Taxation clerk in the Municipal
Committee Sangrur. He had collected arrears to tax from taxpayers but the sum was not deposited
in the Funds of the Committee after collection but was deposited after about 5 months. He pleaded
that the money was deposited with the cashier Madan Lai a co-accused who had defalcated the
same. But the cashier proved that he had not received any such sum and was acquitted by lower
Court. Mr. Bagga Singh had not obtained a receipt from the cashier for passing the money to him. It
was held that there was no practice to pass on money to the cashier without obtaining receipt and
the accused clerk had not obtained any such receipt. Therefore the mere fact that co-accused cashier
was acquitted was not sufficient to acquit accused in the absence of any proof that he had
discharged the trust expected of him. As such the accused was liable under Section 409, IP. Code.
crtised it for In Punjab National Bank v. Surendra Prasad Sinha,2 the Bank's branch at Katni gave a loan
was lent. It of Rs. 15,000 to one Sriman Narain Dubey on May 5, 1984 and the respondent and his wife Anna
was might Poorna stood as guarantors. They executed security bond and handed over Fixed Deposit Receipt
of an under for a sum of Rs. 24,000 which was to mature on Nov. 1, 1988. At maturity its value would be at Rs.
41,292/-. The principal debtor failed to pay the debt. On maturity the Branch Manager adjusted a
sum of rupees 27,037.60 due and payable by the principal debtor as on December 1988 and the
balance sum of Rs. 14,254.40 was credited to the Saving Banks Account of the respondent. The
respondent alleged that the debt became time barred on May, 1987. The liability of the respondent
being coextensive with that of the principal debtor, his liability also stood extinguished on May 5,
1987. Without taking any action to recover the amount from the principal debtor, the loan amount
with interest was adjusted from guarantors F.D.R. It was held by the Supreme Court that the right to
debt continues to exist notwithstanding the remedy being barred by limitation. Therefore when the
principal debtor did not repay the bank loan, the bank as creditor can adjust it at maturity of the
F.D.R. deposited by the guarantor with the bank as security. Though the debt became time barred at
the time of maturity of F.D.R., it is not obligatory to file a suit to recover the debt. Such adjustment
would not amount to offences punishable under sections 109, 114 and 409 of the Penal Code.
In Jiwan Dass v. State of Haryana,3 the appellant Jiwan Dass and Mittar Pal Yadav, who
were posted in the office of the Government Heat Treatment Centre were authorised to bring 10,000
litres of disel oil from the Indian Oil Corporation, Delhi. For that purpose the letter of authority and
the bank draft for Rs. 28,275,83 were given to them. The accused persons deposited the bank draft
with Indian Oil Corporation and took delivery of 10,000 litres of disel but ultimately the quantity of
disel was found to be less by 4,300 litres, the value of which was Rs. 12,160/-. The delivery was
taken by the junior officer Mittar Pal Yadav and he had signed the relevant papers and the register.
Both the accused persons were convicted by the trial court for offence under section 409, Indian
Penal Code. It was pleaded on behalf Jiwan Dass that though he was a senior officer and
authorisation to take delivery of disel had been given in his favour but there was no entrustment of
criminal disel to him or he never had the dominion
iting the 1. 1996 Cr. L.J. 2883 (S.C.).
2. 1992 Cri. L.J. 2916 (S.C.).
3. A.I.R. 1999 S.C. 1301.
571 [ S. 409
OF OFFENCES AGAINST PROPERTY
over it. PW-4 The Depot manager of the Indian Oil Corporation had stated that the cash memo bears
his signature and it was given to Mr. Yadav who had signed in his presence. It was held that oral and
documentary evidence shows that delivery of oil was given to junior officer Mr. Yadav who in token
thereof had signed not only on cash memo but also on register itself. Thus the prosecution had failed
to prove entrustment or dominion of senior officer Mr. Jiwan Dass over disel oil. The mere fact that
the senior officer had taken bank draft and that authorisation had been given in his favour by his
superior officer would not establish entrustment or his dominion over oil. Therefore, conviction of
senior officer Jiwan Dass was liable to be set aside while that of junior officer should be upheld.
In Bachchu Singh v. State of Haryana,1 the appellant was working as Gram Sachiv for eight
Gram Panchayats. He collected a sum of Rs. 648/ from thirty villagers towards the house tax and
executed receipts for the same. He was charged under Section 409 Indian Penal Code. As he was a
public servant, and in that capacity he collected money as house tax but did not remit the same. It
was held that the appellant dishonestly misappropriated or converted the said amount for. his own
use and his conviction under Section 409 Indian Penal Code was upheld by the Supreme Court.
In L. Chandraiah v. State of A.P.,2 A-l was Sub-post Master from April 1986 to May 8, 1987.
He was succeeded by A-2 who continued till November 16, 1987. A-3 was Postal Assistant and A-4
was post-man in the same post office. A-5 was earlier an employee of postal department and had
resigned in 1987. A-6 is a student related to A-3 and staying with him. Recurring deposit accounts
of the workers of M/s. Singareni Collieries Ltd. were opened in the post office by the Management
and the total sum of all was remitted by one single cheque and postal authorities made the necessary
entries in each account as per the list attached with the communication. For withdrawal of any
amount the management after fixing the seal on the withdrawal voucher would send the same to the
Post-Master and the concerned workman would sign the voucher in the presence of the Post-Master
whereafter the withdrawal was permitted.
In this case a large number of withdrawals were made during the period in question and
approximately Rs. 91,280/- was withdrawn pursuant to a conspiracy between the accused. It is
alleged that false vouchers were prepared with forged signatures and forged seal of the management
and payment was made on the basis of said forged vouchers.
The vouchers were prepared by A-3 and the appellants accused who functioned as Sub-post
Master during the relevant period did not take requisite care to verify whether the vouchers were
genuine or forged. In this way they permitted a large number of fraudulent withdrawal on the basis
of forged vouchers.
It was held that, even though it could be said that the appellants accused acted in a negligent
manner and if they had taken due care they would have detected the fraud, but that by itself would
not constitute an offence^ under Section 409 of I.P.C. though il may expose the appellant to
disciplinary action under the relevant rules.
Therefore in the absence of any evidence to show that A-3 was acting a conspiracy with the
appellants or that the appellant had knowledge of the fact that A-' had fraudulently and dishonestly
prepared forged vouchers on the basis of which th amounts were withdrawn the offences under
Sections 467, 471 or 409 I.P.C. could w be said to be proved against the appellants. Consequently,
the offence under tt provisions of the Prevention of Corruption Act would also not be made out. In
the res« the appellants are acquitted of the charges levelled against them.
1. 1999 Cri. L.J. 3528 (S.C).

2. 2004 Cri. L.J. 365 (S.C).
I S. 409
S. 409 INDIAN PENAL 693
CODE, 18
573 [ S. 409
In R. Sal Bharathi v. J. Jayalalitha,' Tamil Nadu Small Industries Corporation Ltd. (TANSI)
sold its defunct units to the highest tender firm of which Chief Minister Jayalalitha was a partner. It
was alleged that the property in question was deliberately sold for less value with a view to confer
pecuniary advantage to the firm consisting of Chief Minister which resulted in wrongful loss to the
Government company. Trial Court convicted all the accused but all were acquitted by the High
Court. On appeal the Supreme Court held that examination of the evidence on record indicates that
the witnesses admitted that the properties in question had no guideline value and hence the charge
for the purchase of properties below the guideline value fails.
It was further held that in view of the failure of the prosecution to show that the guideline
value is Rs. 7.32 lakhs per ground and in view of the positive evidence showing that the value of
i Sachiv | land of Tansi Founding unit could be Rs. 3 lakhs per ground particularly when the sale was by way
towards Son of open tender, it cannot be said beyond reasonable doubt that the property had been undersold and
409 I money there was loss to Tansi. The view taken by High Court was reasonable.
anestly under In ascertaining the true value, the High Court has taken note of several features. Firstly, the
price has been offered by the firm in a tender process pursuant to advertisement. The tender process
1986 to A-3 was transparent and was not vitiated. Secondly, the adoption of Rs. 7.32 lakhs per ground as
riier an l to A- guideline value will have to be in terms of Tamil Nadu Stamp Act and not dehors the same. Thirdly,
3 agareni sum the market value is the price of Rs. 3 lakhs per ground in respect of land sold by Tansi in an earlier
of entries of transaction. The said land forms part of the land out of which a portion is sold to the firms of the
any [ send the
accused. The approach of High Court cannot be said to be irrelevant or perverse.
in the
In State of H.P. v. Karanvir} the complainant Rajbir, who was a teacher had handed over Rs.
iod in spiracy 8000 to the respondent who was post-master for the purpose of purchasing National Savings
forged : basis Certificates. After more than a month passed the depositor was not given certificates. He therefore,
of made inquiries with the postal authorities whereupon he came to know that no such certificate has
been issued. After hearing that an enquiry had been ordered, the respondent deposited Rs. 4200/- on
ioned as ' 30-11-1989 and Rs. 4000/- on 11-12-1989. It is not in dispute that the excess amount of Rs. 200/-
whether aber was deposited.by the respondent on 30-11-1989 by way of interest. On 27-6-1990 FIR was lodged
of and respondent was prosecuted and tried under Section 409 I.R Code. The Trial Court convicted and
punished accused under Section 409 IPC. In revision the High Court held that as the prosecution had
; acted in | not been able to prove misappropriation on the part of respondent, the judgment of conviction and
the fraud, i sentence was unsustainable.
though it The Supreme Court held that we fail to understand as to on what basis the learned judge
opined that the second ingredient of Section 405 IP. Code i.e., misappropriation of the amount by the
[acting in t
respondent had not been proved. The High Court, in our considered view completely misdirected
that A-3 dch
itself in opining that it was obligation on the part of Rajbir Singh PW-3 or Brijpal Thakur PW-4 to
the J could not
I under the i
State in their complaint that accused committed criminal misappropriation with intention to utilise
die result the amount for his personal use. It was made clear that if he did not
1. 2004 Cri. L.J. 286 (S.C.).
2. 2006 Cri. L.J. 2917 (S.C.).
utilise the amount for the purpose for which the same had been deposited an offence must be held to
have been committed. It was also pointed out that the actual manner of misappropriation is not
required to be proved by the prosecution. Once entrustment of money is proved, it was for the
accused to prove as to how the property entrusted to him has been dealt with in view of Section 405
IP. Code. If. the respondent fails to produce any material for this purpose, the prosecution should
not suffer for this. If the accused did not utilise the amount for the purpose it is deposited the
offence is proved.
On the question of punishment and sentence the Supreme Court held that since the accused is
aged 60 years and offence was committed 15 years back, he was arrested by police, he might have
been in custody for some time. Therefore, having regard to the peculiar facts that the accused had
deposited misappropriated amount with interest even before FIR was filed, the Court said that the
interest of justice would be sub-served if no substantial punishment is awarded and only fine is
imposed. Therefore, only a fine of^Rs. 4000/- was imposed in addition to Rs. 1000/- imposed by the
Trial Judge and in default of payment of fine respondent shall go simple imprisonment for three
months.'
OF THE RECEIVING OF STOLEN PROPERTY
410. Stolen property.—Property, the possession whereof has been transferred by theft,
or by extortion or by robbery, and property which has been criminally misappropriated, or in
respect of which criminal breach of trust has been committed, is designated as a "stolen
property" whether the transfer has been made, or the misappropriation or breach of trust has-
been committed, within or without India. But, if such property subsequently comes into the
possession of a person legally entitled to the possession thereof, it then ceases to be stolen
property.
COMMENT
This section enumerates the things covered by the words 'stolen property'.
411. Dishonestly receiving stolen property.—Whoever dishonestly receives or retains any
stolen property, knowing or having reason to believe the same to be stolen property, shall be
COMMENT
Section 410 defines stolen property. This section provides punishment for dishonest receipt
and retention of stolen property. Merc possession of stolen property is not an offence, it must be
received and retained dishonestly and with the knowledge that it is stolen property. The person who
receives or retains stolen property is punished in the same manner as a person who commits theft.
There can be no offence under section 411 unless a thing stolen falls under section 410.-
Ingredients.—-The following are ingredients of this offence :
(i) The accused has received or retained the stolen property
dishonestly.
(ii) He knew or had reasons to believe that the property was stolen
property.
(iii) The fact that the property was stolen.
(iv) That some person other than the accused was in possession of
1. State of H.P. v. Karanvir, 2006 Cri. L.J. 2917 (S.C).

2. Chand Mai A.l.R. 1976 S.C. 917.
the stolen property before the accused got possession.

(1) Dishonestly receives or retains.—In order to commit an offence under this section the
accused must have received or retained the stolen property dishonestly. A person cannot be
convicted of receiving stolen property if he had no guilty knowledge at the time of receipt. But he is
guilty of retaining the same if he subsequently knows or has reasons to believe that the property was
stolen.
(2) The accused knew or had reasons to believe that the property was stolen property.
—-The section requires that the accused should receive the property with the knowledge that it is
stolen property. The word 'believe' involves the necessity of showing that the circumstances were
such that a reasonable man must have known that the property with which he has dealing was stolen
property. This imputes necessary knowledge on the accused.
(3) The fact that the property is stolen property.—In order to constitute an offence under
this section the property must be stolen property within the meaning of section 410 of this Code.
Things which have been stolen, extorted or robbed or which have been obtained by criminal
misappropriation or criminal breach of trust come under the extended significance given to these
words.
A mere reading to section 411 shows that the concerned person should in the first place
dishonestly receive or retain the stolen property. It envisages that before the stolen property goes
into the hands of the accused it must be shown that the said property as a stolen property had been
in possession of some body else before it reached the hands of the accused and that he received it or
retained it dishonestly. The second ingredient is that he should receive or retain the said stolen
property knowingly or having reason to believe the same to be stolen. The burden lies on the
prosecution to lead evidence and to prove that the accused had knowledge or atleast reason to
believe that the said property was stolen.1
Cases.—A, B, C, D, and E started for committing dacoity in the house of M. E being dead
drunk could not proceed and fell down under a neem tree. A, B, C, and D went into the house of M
and after firing into the air took away cash and ornaments. Thereafter they returned to the place
where E was lying and gave him a part of the booty. Here E is liable for receiving stolen property
and also for preparation to commit dacoity under section 399.
The deceased was a senior muneem in an establishment. One night he was murdered and Rs.
8,800 were looted from his possession. Four persons, namely, Vishnu Gopal, Satish Chandra,
Manoharlal and Vishnu Shankar were alleged to have committed the offence under sections 392 and
302 read with section 34 or 411. All the four were acquitted of the charges under sections 392 and
302 read with section 34. Vishnu Gopal and Manoharlal were also acquitted of section 411. Vishnu
Shanker and Satish Chandra were found guilty under this section because they were in possession of
Rs. 2,000 and 3,100 respectively which was looted property.2
412. Dishonestly receiving property stolen in the commission of a dacoity.—Whoever dishonestly receives or retains stolen property, the possession whereof he knows or has reason to
believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe, to belong or to have belonged to a gang of dacoits,
property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and
1. Dashrath v. State o f U.P., 1984 Cr. L.J. 797.

2. Satish Chandra and others v. State of U.P., 1983 Cr. L.J. 683 (S.C.).
577 INDIAN PENAL CODE [ S. -113
COMMENT
This section punishes a receiver of property which is subject-matter of a dacoity with a
purpose to curb the menace of dacoity.
In a dacoity case if stolen goods are recovered at the instance of the accused very soon after
the occurrence in the presence of the police officers and panch witnesses who have deposed the
same, the accused will be convicted not only under the provisions of this section but also under
section 391. The evidence of the panchay is very material especially when the articles is recovered
from a place not accessible to all.1
413. Habitually dealing in stolen property.—Whoever habitually receives or deals in
property which he knows or has reason to believe to be stolen property, shall be punished
with imprisonment for life, or with imprisonment of either description for a term which may
COMMENT
This section punishes severely those who are professional dealers in stolen property. The
occasional dealers, according.to the source of the property, are dealt with in the preceding sections.
Professional dealer means a habitual dealer whose livelihood depends upon such a trade. If a
person receives from different persons different properties which are the proceeds of the different
robberies on the same day he cannot be termed as a habitual dealer. The transactions must occur on
different dates to constitute his habituality.
414. Assisting in concealment of stolen property.— Whoever voluntarily assists in
concealing or disposing of or making away with property which he knows or has reason to
believe to be stolen property, shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.
COMMENT
Ingredients.—Ingredients of this section are as follows :
1. To give voluntarily assistance in concealing, disposing of or making away with
the property.
2. Knowledge or reason to believe that such property is a stolen property.
T, a taxi driver was carrying several persons in the taxi. At a place where the taxi stopped for
some reason not known, two of the passengers alighted the taxi and with 3 or 4 yards away from it
they suddenly attacked, injured and robbed a man of his purse containing Rs. 50/-. The robbers then
again boarded the taxi and the driver in spite of the cries of the victim drove the taxi as fast as he
could. It was held that the driver assisted the robbers in making away with the money so robbed and
as such was guilty under section 414.2
Of Cheating
415. Cheating.—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 omission
causes or is likely to cause damage or harm to that person in body, reputation or property,
is said to "cheat".
Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.
illustrations
1. Lachhman Ram v. State of Orissa, 1985 Cr. L.J. 753 S.C.
2. Hari Singh, (1940) 2 Cal. 97
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly
induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this
article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for
the article. A cheats.
578 INDIAN PENAL CODE [ S. -113
(c) A, by exhibiting to Z a false sample of an article, intentionally deceive Z into believing that the
article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A
cheats.
(d) A, by tendering payment for an article a bill on a house with which A keeps no money, and by
which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly
induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z,
and thereby dishonestly induces Z to lend money. A cheats.
(f) A, intentionally deceives Z into a belief that A means to repay any money that Z may lend to
him and thereby, dishonestly induces Z to lend him money, A not intending to repay it. A cheats.
(g) A, intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo
plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the
faith of such delivery. A cheats ; but if A, at the time of obtaining the money, intends to deliver the indigo
plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is' liable only to a
civil action for breach of contract.
(h) A, intentionally deceived Z into a belief that A has performed A's part of a contract
made with Z, which he has not performed and thereby dishonestly induces Z to pay money.
A cheats.
(i) A, sells and conveys an estate to B. A, knowing that in consequence of such sale
he has no right to the property, sells or mortgages the same to Z, without disclosing the fact
of the previous sales and conveyance to B, and receives the purchase or mortgage money from
Z. A cheats.
COMMENT
A person is said to cheat when he by deceiving another person fraudulently or dishonestly
induces the person so deceived, to deliver any property to him, or to consent that he 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 was not so deceived and which act or omission causes or is likely to
cause damage or harm to that person in body, mind reputation or property.1
Ingredients.—The section requires—
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person—
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain property, or
(b) Intentionally inducing that person to do or omit to do anything which he would not
do or omit if he were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property.
The Supreme Court has in Rain Das v. State of U.P.,2 analysed the ingredients of offence of
cheating as under :—
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;
1. Hari Sao v. State of Bihar, A.I.R. 1970 S.C. 843.

2. Ram Das v. State of U.R, (1971) 2 S.C.J. 264.
(ii) (a) The person so deceived should be induced to deliver any

property to any person, or to consent that any person shall retain any
property; or
(b) The person so deceived should be intentionally induced to do or omit to do
anything which he would not do Or omit if he were not so deceived; and
(iii) In cases covered by (ii) (b), the act or omission should be one
which causes or is likely to cause damage or harm to the person induced
in body, mind, reputation or property.
The essence of an offence of cheating is that damage or harm caused by deception must be
proved in relation to the person deceived. But in transactions of commercial nature the breach of
promises which may resultantly yield loss may not necessarily fall within the ambit of cheating. Irr
Fazlur Rahman v. Surinder Kumar,1 the complainant supplied goods to the accused on the latter's
representation that the price would be sent at a later date, which turned out to be untrue. It would not
be a case of cheating but merely a breach of contract. Deception is not defined in the Code, although
it is an ingredient of cheating. A person is deceived when he was induced to believe that as true
which was untrue. This dishonest intention must be proved to exist at the time of commission of the
act. In Ratan Lai Sharma v. Mangeram Ghanshyamdas,2 the accused refused to take delivery of the
goods on account of fall in prices. It was held that at the time when the goods were consigned the
accused did not have any intention to induce the complainant to part with the goods, and so no
deception had been practised by the accused. In fact in most of the contractual transactions where
deceptions occur the intention is lacking at the time of entering into the transaction.
In a bidding 'K' brings a large sum of money for depositing as earnest money but due to
circumstances beyond his control is unable to deposit it and there is nothing to show that at the time
he made his bid he was not a bona fide purchaser and had no intention of performing the obligation
under which he laid himself by such bidding. In this case 'K' will not be liable for cheating because
he had no intention to deceive. There was no fraudulent or dishonest inducement whereby the
property was delivered and hence there is no liability for cheating.
The cheating is to take place in relation to the delivery of property. It is not necessary that the
property must have a money value or a market value in the hands of the person cheated, but once it
is induced to be parted with and it becomes a thing of value in the hands of the person who may get
possession of it as a result of cheating, it would fulfill the requirements. Thus a passport would be a
property within the meaning of Sections 415 and 420 for it has the characteristics and importance of
being a property as envisaged in these sections.3
1. Deceiving any person.—A person deceives another when he causes to believe what is false or misleading as to a matter of fact, or leads into error. A wilful
misrepresentation of a definite fact with intent to defraud constitutes an offence of cheating. It is not sufficient to prove that a false representation had been made but it must
be proved that the representation was false to the knowledge of the accused and was made to deceive the complainant. Where the accused misrepresented the Public Service
Commission as to his age and qualification, he was found guilty under this section. It was held that although the Commission was an independent statutory body performing
advisory function, the deception of such advisory body was deception of the Government and the accused was liable under this section.1 X applied to Agra University for
1. 1977 Cr. L.J. (N.O.C.) 15 (H.P.).

2. 1977 Cr. L.J. (N.O.C.) 19 (Mad.).
3. N.M. Chakraborty v. State, 1917 Cr. L.J. 961 (S.C).
permission to appear at the M.A. examination as a private candidate representing that he was a graduate having obtained his B.A. degree three years earlier and that he had
been teaching in a certain school. In support of his application he attached certain certificates purporting to be from the Head Master of that school. The University authorities
first gave X permission to appear for the M.A. examination but later on finding that the certificates produced by X were false and that he was not a graduate nor a teacher,
they withdrew the permission. In this case X would be liable for attempting to cheat but if he had appeared at the examination on the basis of permission obtained through
deception then he would be liable for cheating.2
Where a person knows that statements made by another are false, but still acts upon them
with a view to entrap that person, the accused will be guilty of attempt to commit this offence. If a
person buys milk knowing it to be watered in order to prosecute the seller the offence committed by
the seller is only attempt to cheat.3
2. Fraudulently or dishonestly induces the person so deceived to deliver any property.—
The essence of charge under this section is that the accused induces someone fraudulently or
dishonestly. The dishonest intention must either proceed or accompany the act of dishonesty.
Recommendatipn of a person's worthiness is not tantamount to false representation resulting in
inducement. A representation must have been made knowing it to be false resulting in wrongful loss
or wrongful gain. A and B in concert entice away a boy below 15 years in order to murder him. The
boy is actually murdered. A and B anonymously demand a ransom from F, the father of the
deceased boy on the pretext that the boy would return if the ransom was paid. The ransom is paid
but the boy is not recovered. Here A and B would be liable for murder of the boy as well as for
cheating because they have induced F with dishonest intention to pay the ransom. It is not a case of
extortion because ransom is not obtained by threat or intimidation.
In Uma Dutta v. Mahadevan,4 the petitioner had taken a loan of Rs. 10,000 from State Bank
of India by pledging ten tolas of gold ornaments. The petitioner received several letters from Bank
Manager—the respondent for early liquidation of the loan amount. Lastly she received a notice on
14.12.1987 to the effect that unless the loan is—liquidated the ornaments would be put to auction on
15.1.1988. The date of auction was extended on request and before the final date of auction the
balance of loan amount Rs. 9333/20 was paid but the ornaments were not returned. Two days before
the final payment of loan the petitioner was told by the that Bank the ornaments will be returned
only after clearance from controlling office due to her husband's involvement in fraud who was a
farmer bank employee. The complainant petitioner made it clear to the Bank that the ornament was
her stridhan property and the respondent was not entitled to retain the same as she has cleared the
loan. The Manager of the Bank refused to return the ornaments for want of clearance by controlling
1. Kanumukkia Krishnamurthy v. State o f Madras, A.l.R. 1965 S.C. 333.
2. Based on Abhayanand Misra v. State of Bihar, A.l.R. 1961 S.C. 1698.
3. Kalee Modock, (1872) 18 W.R. (Cr.) 61.
4. 1993 Cri. L.J. 3231 (Orissa).
office. It was, therefore, alleged that the accused having been fully aware about the fraud committed
by her husband was determined not to return the ornaments, nevertheless induced the complainant to
make payment of the outstanding loan and thereby caused a wrongful loss of Rs. 9333.20 which she
had paid to the Bank. It was held that the bank manager was not guilty for cheating because he had
no dishonest intention in inducing loanee to pay loan for delivery of ornaments as he had made it
clear that ornaments will be returned only after clearance by the controlling office.
Property.—Property may be movable or immovable.1
3. Intentionally inducing that person to do or omit to do anything which he would not
do or omit, etc.—The person cheated must have been intentionally induced to do an act which he
would not have done or omit to do an act which he would have done due to the deception caused on
him.
Cases.—Where the accused secretly entered an exhibition building without having purchased
a ticket and was apprehended there, his act would not amount to cheating. But if the accused had
said to the gate keeper that he had a ticket, and had thus obtained his entry into the building, he
would be guilty of cheating. Where a railway passenger travelled in a higher class having a ticket
for a lower class3 or where a passenger gave some part of his luggage to a co-passenger to evade the
charge for over-weight luggage4 the offence of cheating was not committed.
Where A gives a cheque which he knows will be dishonoured, he will be liable for cheating.
So also where A writes a book with false titles to himself, A will be guilty of cheating.
In Subodh S. Salaskar v. Jayprakash M. Shah and another? the accused was alleged to have
issued post-dated cheques. Cheques on presentation on a much later date were dishonoured on
ground that account was not operative. It was held that even if accused had closed account
subsequently, intention of accused to cheat complainant right from date of issue of cheque cannot be
inferred. Therefore, Section 420 IP. Code was not attracted.
Where the Commissioner for oaths was induced to attest an affidavit by a wrong
identification made by the appellant, there was no offence of cheating as there was no likelihood of
any damage or harm to body, mind, reputation or property of the commissioner. 6 In a case F called
at the houses of a number of persons and contracted with them to make paintings from photographs.
He obtained payments in advance but did not work in any case and it appeared that he never had any
intention of doing any work. F is guilty of cheating as he has deceived them all by inducing to make
advance payment.
Taking only thumb impressions on blank paper may be a preparation to cheat but unless the
body is filled up neither there is cheating nor attempt to cheating.7
It was held in A.K. Khosla v. T.S. Venkatesan, that untrue praise of goods meant for sale does
not amount to cheating under Section 415, IP. Code.
In Jibrial Diwan v. State of Maharashtra? two letters of invitation were prepared by one Mr.
Patel on the letterhead of Minister to attend a cultural show. The letter was not signed by the
Minister. The invitation letter prepared by Mr.
1. R.K. Dalmia v. Delhi Administration, A.I.R. 1962 S.C. 1821.
2. Meherbanji Bejanji, (1969) 6 B.H.C. (Cr. C.) 6.
3. Dayabhai Parjam, (1864) I B.H.C. 140.
4. Paras Ram, (1903) P.R. No. 25 of 1903.
5. (2008) 4 Cri. L.J. 3953 (S.C).
6. Ram Jos, A.I.R. 1974 S.C. 1811; see also 1970 S.C.C. 740.
7. Sheo Prasad, A.I.R. 1926 Pat. 267.
8. 1997 Cri. L.J. 4070 (S.C).
Patel was delivered to the two invitees by the appellant. Mr. Patel was acquitted by the High Court
but the appellant was convicted and hence he preferred an appeal to the Supreme Court. It was held
that the appellant was not guilty under Section 417 IP. Code as the act did not cause or was likely to
cause harm to any person in body, mind or reputation.
In Rajesh Bajaj v. State NCT of Delhi,1 The appellant/complainant belongs to a company M/s
Passion Apparel Private Limited engaged in manufacture and export of ready made garments. One
Gagan Kishore fifth respondent the Managing Director of M/s Avren Junge Mode Gumbh Hans Der
Model approached the complainant for purchase of ready made garments and induced the appellant
to believe that he would pay the price of goods on receipt of invoice within fifteen days from the
date of invoice which complainant would despatch to Germany. The appellant on belief of the
representation despatched the goods worth 4,46,597.25 D.M. In March/April, 1995 respondent on
receipt of 37 different invoices got the goods released and sold them to others. But the respondent
paid only a sum of 1,15,194 D.M. It was alleged that the respondent induced the appellant to believe
that he was a genuine dealer, but actually his intentions were not clear. The respondent did not
honour even a subsequent understanding reached between the two parties that respondent would pay
200,000 D.M. in lieu of remaining part of price but even that was not honoured. The High Court
quashed the FIR on the ground that the offence under section 420, Indian Penal Code was not made
out and also that in the face of the allegations made "it is purely a commercial transaction which in a
nutshell is that the buyer did not pay the balance amount of the goods as per his assurance. An
appeal was preferred to the Supreme Court against this order. It was held that it may be that the facts
narrated in the complaint would as well reveal a commercial transaction or money transaction. But
that is hardly a reason for holding that the offence of cheating would elude from such transaction. In
fact many cheatings were committed in the course of commercial and also money transactions. The
crux of the postulate is the intention of the person who induces the victim of his representation and
not the nature of transaction which would become decisive in discerning whether there was
commission of offence or not. The complainant in this case has stated in the body of the complaint
that he was induced to believe that the respondent would honour payment on receipt of invoices, and
that the complainant realised later that the intentions of respondent were not clear. He also
mentioned that respondent after receiving the goods have sold them to others and still he did not pay
the money. Such averments would make a case for investigation by the authorities.
Cheating and extortion distinguished.—The offence of cheating is, like that of extortion,
committed by wrongful obtaining of consent. The difference between the two offences is, that the
extortioner obtains the consent by intimidation, and the cheat by deception.
416. Cheating by personation.—A person is said to "cheat by personation" if he cheats by
pretending to be some other person, or by knowingly substituting one person for another, representing
that he or any other person is a person other than he or such other person really is.
Explanation.—The offence is committed whether the individual personated is a real or imaginary
person.
• 1. AIR 1999 S.C. 1216.
Illustrations
(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation.
(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.
COMMENT
Whenever one pretends to be someone else than his real self, by word, act, sign, or dress, the
offence under this section is committed provided some gain has accrued or some loss is incurred by
either party.
Ingredients.—This section requires any one of the following essentials :—
1. Pretending by a person to be some other person.
2. Knowingly substituting one person for another.
3. Representation that he or any other person is a person other than he or such other
person really is.
Impersonation in examinations for someone, in elections for some voter, for getting married
representation of some other castes than the real castes etc. are the cases wherein usually this
offence is committed.
'A' personated as 'B' at the examination, passed the examination and obtained the certificate
in 'B's name, 'B' thereupon applied to have his own name entered in the list of candidates for
Government service. In this case A is liable for the offence of cheating under Section 416 and B is
liable for attempting to cheat because he has applied for entering his name in the list of candidates.
417. Punishment for cheating.—Whoever cheats shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.
COMMENT
This section punishes simple cheating. Where A dines at a hotel and goes away without
paying bill or leaving his name and address he would be liable for cheating under this section.
In Ravichandran v. Mariyammal,1 the petitioner and the respondent fell in love with each
other and the petitioner made persistent efforts to enjoy respondent's blissful company even prior to
their marriage, Mariyammal appeared to have been evading such request all along. But one day the
petitioner requested her to share the bed on the promise that he would marry her in due course.
Believing on such representation Mariyammal complied with his request and consequently she
became pregnant. The fact of pregnancy became known to one and all but the petitioner refused to
marry her. It was held that the petitioner was liable for cheating under section 417 IP. Code because
but for the representation so made and the deception practiced on her, she would not have been a
party for sharing her bed with the petitioner, which is said to have resulted in her becoming
pregnant. It was further held that the contention of the petitioner, that since cheating figured in
chapter relating to offences against property, the case cannot come within the purview of section
417 IP. Code, cannot be accepted.
418.. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound
to protect.— Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person
whose interest in the transaction to which the cheating relates, he was bound, either by law, or by legal contract,
to protect, shall be punished with imprisonment of either description for a term which may extend to three years,
COMMENT
1. 1992 Cri. L.J. 1675 (Madras).
This section punishes those in cheating cases who owe a special responsibility to protect the
interest of those with whom they are transacting. Misuse of trust reposed is punished under this
section. Where a false balance sheet is shown with an intent to secure or renew the deposits for the
company the culprits are taken care of under this section.
419. Punishment for cheating by personation.—Whoever cheats by personation shall be punished
both.
420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby
dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy
the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of
being converted into a valuable security, shall be punished with imprisonment of either description for a
COMMENT
When due to the actions of the cheat there is destruction or delivery of property or alteration
or destruction of any valuable security this section applies. Simple cheating is covered by section
417.
Cases.—X whose, duty was to report market rates, after connivance with market people,
reported higher rates than the prevalent rates and thereby sellers got higher sums than due, it was
held that X was guilty under this section. 1 The culprit made a false representation that he was an
employee of the Calcutta Municipal Corporation, obtained rupees ten as subscription from the
Health Officer of that Corporation, towards the funds of a charitable society. The money was duly
made over by the accused to the charity, but he was subsequently charged with an offence of
'cheating' and was convicted under this section. It was held that he was not guilty as there was no
such deception as to cause 'wrongful loss' or 'wrongful gain.2
It was held in Hiralal Harilal Bhagwati v. C.B.I., New Delhi? that for establishing the
offence of cheating, the complainant is required to show that the accused had fraudulent or
dishonest intention at the time of making promise or representation. From his making failure to keep
up promise subsequently, such a culpable intention right at the beginning that is at the time when the
promise was made cannot be presumed. In the present case it is seen from the records that the
exemption certificate contained certain conditions which were required to be complied with after
importation of the machine by Gujarat Cancer Society (G.C.S.). Since the society could not comply
with it and, therefore, it rightly paid the necessary duties without taking advantage of the exemption
certificate. The conduct of the society clearly indicates that there was no fraudulent or dishonest
intention of either the G.C.S., or the appellants in their capacities as office-bearers right at the time
of making application for exemption. As there was absence of fraudulent or dishonest intention, the
question of committing offence under section 420 of Indian Penal Code does not arise. The charge-
sheet shows that there is no allegation in the First Information Report or the charge-sheet indicating
expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the
appellants right from the time of making the promise or misrepresentation. Nothing has been said on
what those misrepresentations were and how the Ministry of Health was duped and what were the
roles played by the appellants in the alleged offence. Therefore, in view of the Court the appellants
could not be attributed any mens rea of evasion of customs duty or cheating the Government of
India, as the society is a non-profit organisation and therefore the allegations against the appellants
levelled by
1. Permeshar Dat, (1886) 8 All. 201.
2. Ashutosh Mallick, (1905) 33 Cal. 50.
3. 2003 Cri. L.J. 3041 (S.C).
the prosecution are unsustainable.
X manufactured certain spurious trinkets and took them to a goldsmith, showed them to him
and said that they were of gold (which they were not) and they were stolen property (which was also
untrue). He further said that he did not wish to sell them in the market and asked the goldsmith to
buy them. The goldsmith did not buy them and the negotiations went no further. It was held that the
accused was guilty of attempt to cheat. 1 In a case, X leads Y to believe that he can by magic double
the number of currency notes. Y gives currency notes worth Rs. 1,000 to X who puts them in a
black tin box. X then gives the box to Y with instruction to open it after an hour. After X has gone
away Y opened the box only to find it full of waste pieces. X would be Jiable for the offence of
cheating under section 420, I.R Code as he has dishonestly induced Y to deliver the currency notes
to him and has thereby deceived him. In another case C makes D believe that he means to deliver to
D certain quality of wheat which he does not intended to deliver and thereby induced D to advance
money upon the faith of such delivery. Here C will be liable for cheating under this section. In this
problem if C at the time of obtaining money intended to deliver the wheat but afterwards did not do
so then he will be liable for criminal misappropriation under section 403, I.R Code.
Where at the initial stage of transaction accused had no intention to cheat but due to some
subsequent development between the parties, the accused changed his mind and refused the
payment, his subsequent conduct cannot amount to cheating. It is a well established principle of law
that the dishonest intention at the time of initial transaction must appear to be clear. The subsequent
conduct of the accused cannot make the transaction amounting to cheating.2
In Kewal Krishan and others v. State of Punjab? the appellant obtained iron and steel under
control order from Director Industries, to be used in his factory. He obtained the commodity on
payment but utilized the same for a purpose different from that for which it was obtained. It was
held that the accused was not guilty of the offence of cheating under section 420 because firstly, he
obtained the commodity on payment of price, and secondly, when he made the application and
acquired iron and steel, he had no intention to mis-utilize it. But if after having bona fide applied for
the commodity and having obtained it. the accused for some reason, thought of not using it in the
factory, he cannot be said to have cheated the Industry Department. It must be established for an
offence under this section that the accused had an intention to cheat right from the beginning.
In Nageshwar Prasad Singh v. Narayan Singh? an agreement was signed between the
complainant-respondent and the appellant whereby some land was agreed to be sold by the apellant
to the complainants on a consideration and allegedly a part thereof was paid as earnest money, the
balance being payable in the manner indicated in the deed. As per terms of the deed the possession
of the plot would stand transferred to the complainants and possession in fact was delivered to the
complainants over which they have made certain constructions. The complaint was made on the
basis that the appellant had cheated the complainants of the sum of money they had paid as earnest
money as his subsequent conduct reflected that he was not willing to complete the bargain for which
the complainants had to file a suit for specific performance which was pending in the civil court.
The complainants not performing their part in making full payment. It was held that in this case the
liability, if any, arising by breach of contract is civil in nature and not criminal. Therefore criminal
proceedings were quashed and complainant was directed to pay Rs. 10,000/ as compensatory cost
for these vexatious proceedings.
1. Abdullah, (1914) P.R. No. 14 of 1914.

2. Manoranjan Haldar v. MJs. Mechfab Engineering Industries, 1984 Cri. L.J. 1265 (Gau.).
3. 1986 Cri. L.J. 1792 (H.P.).
4. 1999 Cri. L.J. 598 (S.C.)
S. 420 ]
In Poovalappil David v. State of Kerala1 the petitioners are Manager and Managing Partner of
"Blue Diamond Theatre" which is licensed as an air-conditioned theatre. The petitioners used to
switch off the air-conditioning unit after the entry of customers to save the electrical energy for
illegally enriching themselves. It was held that the action of petitioners amounts to cheating under
section 420 of the Code because by advertising the theatre as air-conditioned the petitioners had
dishonestly induced customers to purchase tickets by giving higher fare to have entry into the
theatre.
In N. Devindrappa v. State of Karnataka,2 accused had induced complainant and many others
from parting with their money as part payment for sale of land not owned by him. Bogus receipts
were also issued. It was held that under the circumstances dishonest intention of accused is proved
and his conviction under Section 420, I.P.C. is proper.
In Shankarlal Vishwakarma v. State of M.P.,3 Shankarlal Vishwakarma was Assistant District
Inspector of Schools. He got certain pay bills prepared, containing false claims for salaries of
teachers who had not worked within his jurisdiction and some of them were even imaginary. These
bills were encashed from the treasury but he did not disburse any of the money of pay bills. He also
got false Acquittance Rolls prepared and got signatures forged on the receipts contained in them.
Thus he devoured the entire money withdrawn.
It was held that a man who tricks another to deliver money to him is not a trustee of that
money. Such a man by subsequent misappropriation touching that money does not commit criminal
breach of trust because the money was not initially entrusted to him but was tricked by him from
another. In such a case the offence committed would be cheating and not criminal breach of trust.
It was also held that the bills in question were false as they contained false claims but the
offence committed was not forgery because the accused had not made signatures or writings of
another or had not unauthorisedly altered the pay bills in material particular. Pay bills in question
were written and signed by accused himself and therefore those could not be said to be false
documents and hence not forgery.
In Ram Prakash Singh v. State of Bihar,4 it was held that where the officers of LIC introduced
fake proposals without any actual gain for themselves as well as a real loss for Corporation, still they
are liable for cheating under section 420, as such fake proposals are likely to harm the reputation of
Corporation. The aim of such officers was to show inflated business in their branch and secure the
promotion in future on its basis.
In Sri Bhagwan Samardha Sreepada Vellabha Venkata Vishwanadha Maharaj v. State of
A.P.,5 the accused represented to have divine healing powers through his touches, particularly of
chronic diseases. Complainant approached him for healing his 15 year old daughter who is
congenitally dumb child. Accused assured the complainant that the girl would be cured of her
impairment through his divine powers and demanded a sum of one lac as consideration to be paid in
instalments. The first instalment demanded was Rs. 10,000/- but after some bargaining was fixed at
Rs. 5,000/- which amount was paid to him. Later on the complainant paid Rs. 1,000/- more towards
incidental expenses. He waited eagerly for improvement upto 1994 the time limit indicated by the
appellant for the girl to start speaking but there was no improvement in the girl. A little more amount
of Rs. 516/ was collected for performing a yagyan and the time limit was extended to August, 1994.
But unfortunately nothing of such thing.
brought about any change in the girl. In the meantime, news of some other persoi being defrauded by
1. 1989 Cri. Li. 2452 (Kerala).
2. 2007 III Cri. L.J. 2949 (S.C).
3. 1991 Cri. L.J. 2808 (M.P.).
4. AIR 1998 S.C. 296.
5. 1999 Cri. L.J. 3681 (S.C.)
the accused and that the accused had mobilised more than a croi of rupees from different devotees
reached to ears of the complainant. It was then th realising that fraud was being committed he made
S. 420 ]
a complaint with the police f< cheating. It was held that if some body offers in prayer to God for
healing the sic] there cannot normally be any element of fraud. But if he represents to another that 1
has divine powers and either directly or indirectly makes that another person belie\ that he has such
divine powers, it is inducement referred to in section 415, Indian Pen; Code. Any body who
responds to such inducement pursuant to it and gives to th inducer money as in the present case, or
any other article and does not get the desire result is a victim of the fraudulent representation. Court
can in such situation presum that the offence of cheating falling within the ambit of section 420, of
the Indian Pen; Code has been committed. It is for the accused in such a situation, to rebut th
presumption. It was held that the allegations disclose an offence under section 42( Indian Penal
Code. Hence the Magistrate has rightly taken cognisance of the sai offence and the order of the
Magistrate was not liable to be quashed.
In Veer Prakash Sharma v. Anil Kumar Agrawal? cheques issued by accuse towards purchase
price were dishonoured. It was held that the same by itself does nc amount to cheating. Further fact
that accused had subsequently stated that he knowing! issued fabricated cheques does not show
intention of accused to cheat from ver inception. It was made clear that non-payment or under
payment of purchase price doe not constitute offence of breach of trust or cheating. It is essentially a
civil dispute Therefore, refusal to quash criminal proceedings was held improper. Moreso whei
statement alleged was made in other district and so Magistrate where complaint wa filed had no
jurisdiction to issue summons.
Abetment of cheating.—in Manoranjan Das v. State of Jharkhand,2 the appellan was a
businessman in Jamshedpur. On 26-5-1972, one Loknath Acharya wanted to opet a current account
with Central Bank at Jamshedpur. Accused/appellant introducec co-accused Loknath to Bank for
opening account. Co-accused after six months presentee some bogus draft which were eredited and
later withdrew heavy amount of more thar a lakh. The self cheque for Rs. 1,40,000.00 was first
passed but the Manager smelt i rat and directed the officer-in-charge of current account to verify the
drafts. The accountant-in-charge found certain irregularities and suspected the genuineness of the
drafts. The Manager stopped payment of cheque and sent a telegram to the Srinagai branch of this
bank wherefrom these drafts were issued. Information was received from Srinagar branch that no
such drafts were issued and therefore a complaint was lodged before the police. There was no
evidence showing involvement of accused in fraud committed by co-accused Loknath Acharya, nor
he instigated co-accused to present bogus drafts. The bank had passed self cheque of co-accused
when there was no sufficient money in his credit, by acting on bogus drafts. It was held that under
the circumstances and in the absence of any evidence of his involvement in cheating the bank by co-
accused, the accused was not responsible for loss sustained by bank and the conviction of the
accused for abetment of cheating the bank was not proper. Therefore the appeal was allowed.
In Devendra Kumar Singla v. Baldev Krishan Singla,3 the accused persons D and M
purchased shares from complainant C. Both of them issued post dated cheques in favour of C which
were dishonoured by bank, \ccused D had executed a receipt that shares have been received by him.
It was held that conviction ofaccused D for offence of cheating under section 420 was proper and the
mere fact that cheque was filled in by complainant, is not sufficient to take away effect of statement
1. 2007 IV Cri. L.J. 3735 (S.C).
2. 2004 Cri. L.J. 3042 (S.C).
3. 2004 Cri. L.J. 1774 (S.C).
in receipt that he had received shares and inability of complainant C to tell the number of shares is
not sufficient to disprove evidentiary value of receipt. The statement of D under section 313 that he
did not receive any shares is only his version and not evidence. As for the accused M is concerned
though he has signed the cheque but the same was handed over to the complainant by accused D.
Her presence at the time of transaction was also not proved. It was held that no deception was
established against accused M and therefore her acquittal was proper.
OF FRAUDULENT DEEDS AND DISPOSITION OF PROPERTY

421. Dishonest or fraudulent removal or concealment of property to prevent distribution
among creditors.—Whoever dishonestly or fraudulently removes, conceals or delivers to any
person, or transfer of causes to be transferred to any person, without adequate consideration,
any property, intending thereby to prevent, or knowing it to be likely that he will thereby
prevent, the distribution of that property according to law among his creditors or the creditors
by any other person, shall be punished with imprisonment of either description for a term
COMMENT
This section and other three sections following it deal with fraudulent conveyances as referred
to in section 53 of the Transfer of Property Act and the Presidency Towns and Provincial Insolvency
Act. This section covers insolvency frauds whereby dishonest disposition of property to cause
wrongful loss to creditors is committed. It covers movable and immovable property including
'Benami' transactions.
S. 420 ]
422. Dishonestly or fraudulently preventing debt being available for creditors.—Whoever

dishonestly or fraudulently prevents any debt or any demand due to himself or to any other
person from being made available according to law for payment of his debts or the debts or
such other person, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
COMMENT
Dishonest and fraudulent evasion of one's liability by masking properly to defraud creditors is
the essence of this section.
423. Dishonest or fraudulent execution of deed of transfer containing false statement of
consideration.—Whoever dishonestly or fraudulently signs, executes or becomes a party to any
deed or instrument which purports to transfer or subjects to any charge any property, or any
interest therein, and which contains any false statement relating to the consideration for such
transfer or charge, or relating to the person or persons for whose use or benefit it is really
intended to operate, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
COMMENT
This section deals with dishonest and fictitious conveyances and trusts including dishonest
Benami transactions.
Where the consideration for the sale of immovable property was with the consent of the
purchaser exaggerated in a deed of sale in order to defeat the claim of the pre-emptor it was held that
the purchaser was guilty of this offence.13 Where an accused person had unsuccessfully sought to
obtain a woman in marriage and thereafter made and registered a writing in her favour falsely
reciting that he had married her and purporting to convey to her plot of land in lieu of her dower, it
was held that he was guilty under this section as he intended to cause injury to her and her husband
and to support his own false claim to that status. He was also held guilty under section 193.14
424. Dishonest or fraudulent removal or concealment of property.—Whoever dishonestly
or fraudulently conceals or removes any property of himself or any other person, or dishonestly
13Gurdltta Mai, (1901) P.R. No. 10 of (1901); Mahabir Singh, (1902) 25 All. 31.
14Legal Remembrancer v. Ahi Lai. Mandal, (1921) 48 Cal. 911.
587 INDIAN PENAL CODE ( S. 425
or fraudulently assists in the concealment or removal thereof, or dishonestly releases any demand or claim
to which he is entitled, shall be punished with imprisonment of either description for a term which may
COMMENT
It provides for fraudulent concealment or removal of property from a place where it is
deposited. Where one of the several partners removed the partnership books at night and when
questioned denied having done so,15 where a judgment-debtor whose standing crops were attached
harvested them while the attachment was in force, 16 and where one of the co-sharers in agricultural
production removed some crops and thereby caused a lesser share to the other, 17 it was held that this
offence was committed.
Certain crops were attached in execution of a decree and placed in the custody of a bailiff.
The crops did not belong to the judgment-debtors and the owners cut and removed a portion of them
in spite of the resistance of the bailiff. It was held that no offence was committed.18
Of Mischief
425. Mischief.—Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss
or damage to the public or to any person, causes the destruction of any property, or any such change in
any property or in the situation thereof as destroys or diminishes its value or utility, or affects it
injuriously, commits "mischief".
Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause
loss or damage to the owner of the property injured or destroyed. It is sufficienl if he intends to cause, or
knows that he is likely to cause, wrongful loss or damage to anj person by injuring any property, whether
it belongs to the person or not.
Explanation 2.—Mischief may be committed by an act affecting property belonging t( the person
who commits the act, or to that person and others jointly.
Illustrations
(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongfu loss to Z. A
has committed mischief.
(b) A introduces water into an ice-house belonging to Z and thus causes the ice to mell intending
wrongful loss to Z. A has committed mischief.
(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereb; causing
wrongful loss to Z. A has committed mischief.
(d) A, knowing that his effects are about to be taken in execution in order to satisf a debt from him
to Z, destroys those effects, with the intention of thereby preventing Z fror obtaining satisfaction of the
debt, and of thus causing damage to Z. A has committed mischiel
(e) A, having insured a ship, voluntarily causes the same to be cast away, with th intention of
causing damage to the underwriters. A has committed mischief.
(f) A causes a ship to be cast away, intending thereby to cause damage to Z, who ha lent money on
bottomry on the ship. A has committed mischief.
(g) A, having joint property with Z in a horse, shoots the horse, intending thereby I cause wrongful
loss to Z. A has committed mischief.
(h) A causes cattle to enter upon the field belonging to Z, intending to cause an
knowing that he is likely to cause damage to Z's crop. A has committed mischief.
COMMENT
An offence of mischief under this section requires that the intention of th person committing
the mischief should be to cause loss or damage to the publii or to any person by causing destruction
of any property or any such change i any property or in the situation thereof as destroys or
diminishes its value ( utility injuriously.19
It was held in Nagendra Nath Roy v. Bijoy Kumar Das Verma,20 that mere negligence is not
mischief. Negligence coupled with intention to cause wrongful loss or damage may amount to
mischief. Mischief involves mental act with destructive animus.
Ingredients.—The section requires following elements to constitute an offence under this
section :
(1) Intention or knowledge of likelihood to cause wrongful loss or damage to the
public or to any person;
(2) Causing the destruction of some property or any change in it or in its situation;
and
(3) Such change must destroy or diminish its value or utility, or affect it injuriously.
15Gour Benode Dutta, (1873) 21 W.R. (Cr.) 10.

16Obayya, (1898) 22 Mad. 151.
17Sivanupandia Thevan, (1914) 38 Mad. 793.
18Ghasi, (1929) 52 All. 214.
19Shippatiar Singh v. Krishna, A.I.R. 1957 All. 405.
201992 Cri. L.J. 1871 (Orissa).
1. Intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the
public or to any person.—It is not necessary that there must be damage of destructive nature to
constitute an offence under this section but it requires merely that there should be an invasion of
right and diminution of the value of one's property. Where some persons belonging to one village
pulled and removed fishing stakes lawfully fixed in the sea within three miles of the shore by the
villagers of another village, and the removal of the stakes, though without any intention to
appropriate them, occasioned "damage", it was held that the offence amounted to mischief.21
2. Causes the destruction of any property or any such change in any property etc.—The
main ingredient of this section is the destruction of property or such change in it as destroys or
diminishes its value or utility. The accused on receiving delivery of a registered article from a
postmaster was requested to sign an acknowledgment for the article received by him, but instead of
returning the same duly signed he tore it up and threw it on the ground. It was held that he was
guilty of mischief.22
In Byomkesh Battacharya v. L.N. Datta,23 the accused stopped supply of water to the
complainants flat through operation of wrench valve key and, thereby, turning the main pipe outside
the storage reservoir. It was held by the High Court that the expression "change in the property so as
to destroy or diminish its value or utility" in section 425 does not necessarily mean a change in
character, composition or form : If something is done to the property contrary to its natural use and
serviceableness that destroys or diminishes its value or utility, it will amount to mischief. It is not
necessary that there must be a material change in the property itself nor does section 425 require
that value or utility of the property means its market value or utility. The stoppage of water supply
in the manner in which it was done in this case was something contrary to the natural use and
serviceableness of the water pipe for the purpose it was being used and obviously such act
diminishes or destroys the value or utility of the same.
'Property' under this section means some tangible property which can be forcibly destroyed
but does not include easement. 'Change' means some physical change in composition or form of the
property. The section contemplates a physical injury from a physical cause.
Explanation 1.—It is not necessary that the property destroyed should belong to the person
injuriously affected. It is sufficient if he suffers loss of interest due to destruction of such property.
Illustrations (e) and (f) exemplify this Explanation.
Explanation 2.—One may commit an offence under this section even by the destruction of
his own property. Illustrations (b) and (g) show that a man may commit
21Kastya Rama, (1871) 8 B.H.C. (Cr. C.) 63.

22Sukha Singh., (1905) P.R. No. 24 of 1905.
231978 Cri. L.J. 848.
589 [ S. 427
mischief on his own property. A person who destroys property which at the time belongs to himself,
with the intention of causing or knowing that it is likely to cause wrongful loss or damage to any
body else is guilty of this offence.24
Cases.—In a case A had a dispute about the possession of certain land with C. C dug a well
with a view to cultivate the said land, but A forcibly entered on the land and damaged the well. A
would be guilty of mischief even though C was a trespasser. 25 If a person sets fire to his own house
in order to eject a trespasser, he cannot be said to cause wrongful loss to any person or the public
and will not be liable for the offence of mischief.26
Merely disconnecting electric supply does not amount to destruction of property or to such a
change in property as destroys or diminishes its utility or value, and does not amount to an offence
of mischief.27 Taking earth from some one's land deprives him of or destroys some property which
has some value, therefore it amounts to mischief. 28 Where A dug out tombs of the fore-fathers of C
which stood on A's land, the offence of mischief was not constituted. 29 Where A removed by
reasonable means a projection created by C, the owner to the adjoining house honestly believing that
the projection amounted to a trespass, A must be deemed to have acted bona fide in exercising what
he believed to be his right. 30 In a case A has installed an oil engine on his own property and his
neighbour, C complained that his property was damaged/by reason of vibrations from the engine, it
was held that the offence did not amount to mischief. 31 A lights a match-stick and applies it to the
lay stock of B with a view to setting fire to it. However, A tries to extinguish the fire of his own
accord and in fact succeeds in doing so before he is caught by B and others. Here A will be liable
under this section if he had by setting the fire caused some damage to B.
426. Punishment for mischief.—Whoever commits mischief shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine, or with both.
427. Mischief causing damage to the amount of fifty rupees.—Whoever commits mischief and thereby
causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.
COMMENT
In Anil Ritolia v. State of Bihar? appellant was an authorised dealer stockist of Hindustan
Lever Ltd. Appellant was required to give the respondent Form IX-C prescribed by Bihar Sales Tax
Rules which he failed to supply to the second respondent. Therefore, second respondent filed a
complaint petition alleging commission of offence under Sections 427, 384 and 420/34 of I.P.C.
It was held that non-supply of Form IX-C prescribed by Bihar Sales Tax Rules by itself
cannot ex facie give rise to commission of any offence under Indian Penal Code. If stockist or his
principal failed to perform their duties under the statute, remedy under such statute is required to be
taken recourse to. The second respondent could have filed a suit for damages. It was further pointed
out that stockist dealer did not induce complainant to enter into a transaction so as to deceive him
with a view to cause unlawful loss to complainant and to make unlawful gain to himself. It was also
pointed out that the learned Magistrate has committed an error in taking cognizance of the offence
and the High Court also committed an error in not interfering with the order of the Magistrate. The
appeal was allowed and judgment of the High Court was set aside.
428. Mischief by killing or maiming animal of the value of ten rupees.—Whoever commits
mischief by killing, poisoning, maiming or rendering useless, any animal or animals of the
value of ten rupees or upwards, shall be punished with imprisonment of either description for
a term which may extend to two years, or with fine, or with both.
COMMENT
9. 2008 I Cri. L.J. 353 (S.C).

This section prevents cruelty to animals and consequent loss to the owner. 'Maiming' refers to
those injuries which cause the privation of the use of a limb or a member of the body. Wounding is
not necessarily maiming.
429. Mischief by killing or maiming cattle, etc. of any value or any animal of the value
of fifty rupees.—Whoever commits mischief by killing, poisoning, maiming or rendering, useless,
any elephant, camel, horse, mule, buffalo, bull, cow, or ox, whatever may be the value thereof,
or any other animal of the value of fifty rupees or upwards, shall be punished with
24Harmadas Ghose v. Nusseruddin, (1886) 12 Cal. 660.

25Abdul Hussain, A.l.R. 1943 Kar. 7.
26Ram Kishna Singh, 23 Cri. L.J. 321.
27I.H. Khan v. M. Arathoon, 1969 Cri. L.J. 322.
28Golam Ahija v. Lutful Huda, A.l.R. 1955 Cal. 558.
29Chotutally, (1902) 4 Bom. L.R. 463.
30Jambu Lingam Pillai v. Punnushwami Pillai, A.l.R. 1939 Mad 400.
31Punjaji Bagul, (1934) 37 Bom. L.R. 96.
590 [ S. 427
imprisonment of either description for a term which may extend to five years, or with fine,
or with both.
COMMENT
This section punishes severely if the animal is of greater value.
430. Mischief by injury to works of irrigation or by wrongfully diverting water.—Whoever
commits mischief by doing any act which causes, or which he knows to be likely to cause, a
diminution of the supply of water for agricultural purposes, or for food or drink for human
beings or for animals which are property, or for cleanliness or for carrying on any manufacture,
five years, or with fine, or with both.
COMMENT
This section deals with when the water supply to agricultural purposes is in any way
decreased by the accused illegally so as to infringe some ones right. Section 277 applies when the
water is fouled so as to be unfit for use.
431. Mischief by injury to public road, bridge, river or channel.—Whoever commits mischief by doing any
act which renders or which he knows to be likely to render any public road, bridge, navigable river or
navigable channel, natural or artificial, impassable or less safe for travelling or conveying property, shall
be punished with imprisonment of either description for a term which may extend to five years, or with
fine, or with both.
432. Mischief by causing inundation or obstruction to public drainage attended with damage. —Whoever
commits mischief by doing any act which causes or which he knows to be likely to cause an inundation or
an obstruction to any public drainage attended with injury or damage, shall be punished with
imprisonment of either description for a term which may extend to five years, or with fine, or with both.
433. Mischief by drawing, moving or rendering less useful a light-house or sea-mark.—Whoever commits
mischief by destroying or moving any light-house or other light used as a sea-mark, or any sea-mark or
buoy, or other thing placed as a guide for navigators, or by any act which renders any such light-house,
sea-mark, buoy or other such thing as aforesaid less useful as a guide for navigators, shall be punished
with imprisonment of either description for a term which may extend to seven years, or with fine, or with
both.
COMMENT
This section extends the principles laid down in section 281. Tampering with sea-marks may
lead to disastrous results.
434. Mischief by destroying, or moving, etc., a land-mark fixed by public
authority.—Whoever commits mischief by destroying or moving any land-mark fixed by the
authority of a public servant, or by any act which renders such land-mark, less useful as such,
shall be punished with imprisonment of either description for a term which may extend to one
year, or with fine, or with both.
COMMENT
Since tampering of landmark is not so disastrous in reference to navigation thepunishment is not so
severe.
435. Mischief by fire or explosive substance with intent to cause damage io amount of one hundred or (in
case of agricultural produce) ten rupees.—Whoever commits mischief by fire or any explosive substance
intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the
amount of one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or
upwards, shall be punished with imprisonment of either description for a term which may extend to seven
436. Mischief by fire or explosive substance with intent to destroy house, etc.—Whoever commits mischief
by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause,
the destruction of any building which is ordinarily used as a place of worship, or as a human dwelling or
as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine.
COMMENT
This section contemplates the destruction of a building. A building is not necessarily a
finished structure.32 An unfinished house, of which the walls are built and finished, the roof on and
finished, a considerable part of the flooring laid, and the internal walls and ceiling prepared ready
for plastering, is a building.33
437. Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons
burden.—Whoever commits mischief to any decked vessel or any vessel of a burden of twenty
tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that he will
thereby destroy or render unsafe, that vessel, shall be punished with imprisonment of either
COMMENT
The vessel must be passenger carrying having deck or of twenty tons or upwards burden. It is
to exclude small crafts of all kinds.
438. Punishment for the mischief described in section 437 committed by fire or explosive
substance.—Whoever commits, or attempts to commit, by fire or any explosive substance, such
32Manning, (1871) L.R. 1 C.C.R. 338.

33William Edgell, (1867) 11 Cox. 132.
591 [ S. 427
mischief as is described in the last preceding section, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may extend to ten years,
COMMENT
This section proposes higher penalty due to the dangerous nature of the means used extending
the principles laid down in the previous section.
439. Punishment for intentionally running vessel aground or ashore with intent to commit
theft, etc.—Whoever intentionally runs any vessel aground or ashore, intending to commit theft
of any property contained therein or to dishonestly misappropriate any such property, or with
intent that such theft or misappropriation of property may be committed, shall be punished
with imprisonment of either description for a term which may extend to ten years, and shall
COMMENT
This section punishes acts similar to piracy.
440. Mischief committed after preparation made for causing death or hurt.—Whoever
commits mischief, having made preparation for causing to any person death, or hurt or
wrongful restraint, or fear of death, or of hurt, or of wrongful restraint, shall be punished
with imprisonment of either description for a term which may extend to five years, and shall
OF CRIMINAL TRESPASS
441. Criminal trespass.—Whoever enters into or upon property in the possession of
another with intent to commit an offence or to intimidate, insult or annoy any person in
possession of such property,
or, having lawfully entered into or upon such property, unlawfully remains therewith
intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,
is said to commit a criminal trespass".
COMMENT
In this section any person who enters upon the property of another with intent to commit an
offence or to intimidate, insult or annoy any person in possession of such property, commits an
offence of "criminal trespass". If such person enters upon the property of another lawfully but
unlawfully remains there with intent to insult or annoy such person, he is guilty of an offence under
this section. The use of criminal force is not essential under this section.
Ingredients.—The section requires—
(1) Entry into or upon property in the possession of another.
(2) If such entry is lawful, then unlawfully remaining upon such property.
(3) Such entry or unlawful remaining must be with intent—
(a) to commit an offence; or
(b) to intimidate, insult or annoy any person in possession of the property.
1. Enters into or upon property in the possession of another.—In this section the word
'property' means immovable corporeal property and not incorporeal property such as right of fishery
and right of ferry. The property must be in actual possession of someone other than the alleged
trespasser. If the complainant is not in actual possession of the property this offence cannot be
committed. A man may be guilty of criminal trespass on the land of another without even personally
entering upon it, if, for example, he causes others to build on it against the wishes and in spite of the
protest of its owner.1 In a case A had shot a deer near B's land, he followed it into B's land for the
purpose of killing it, although he was warned off the land beforehand by B. A was not guilty of this
offence because the requisite intention was absent.2
2. Intent to commit an offence.—Criminal trespass depends on the intention and not upon
the nature of the act. If, for instance, a person with intent to save his family and property from
imminent destruction commits criminal trespass on his neighbour's land, and cuts a portion of dam
belonging to his neighbour; he is not guilty of criminal trespass. 3 It is legitimate to think also that
when section 441 of the Penal Code, speaks of entering on property with intent to commit an
offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the
main intention in the action and not any subsidiary intention that may also be present. 4 The accused,
the Vice Chairman of a school committee, entered the school premises which were under the
possession and control of the Head Master and actually beat two boys and abused the Head Master.
He also threatened the Head Master of physical harm as soon as he came out of the school. It was
held that the accused has committed criminal trespass. 5 A passes through the compound of B in spite
of the notice board "trespassers will be prosecuted". Here A would be guilty of trespass if his mere
passing over the land causes annoyance to B and in this case annoyance was very likely in view of
the notice prohibiting trespass.
3. Having lawfully entered into or upon such property, unlawfully remains there.—The
original entry of a person may be lawful on the premises of another but if he remains on the property
with the intent specified in the section, he commits trespass.
1. Ghasi, (1971) 39 All. 722.
592 [ S. 427
2. Chancier Narain v. Faquharson, (1879) 4 Cal. 837.

3. Madan Mandal, (1913) 41 Cal. 662. .
4. Smt. Mathri v. State of Punjab, A.I.R. 1964 S.C. 986.
5. State of Maharashtra v. Tanba Sadashio Kunbi, A.I.R. 1964 Bom. 82.
If a person enters on land in the possession of another in the exercise of a bona fide claim of
right but without any intention to intimidate, insult, or annoy the person in possession, or to commit
an offence, then although he may have no right to the land, he cannot be convicted of criminal
trespass, because the entry was not made with any such intent as constitutes the offence.'
' Cases.—In a case B lawfully seized a cow belonging to A and impounded it in the cattle-
pound. A proceeded to the cattle-pound, opened the lock, entered and drove off the cow after
slightly injuring the watchman who tried to prevent him from so doing. The accused was guilty of
criminal trespass, as his act amounted to an entry upto the property in the possession of another
person with intent to commit an offence and to intimidate the man incharge of the premises. 34 Where
a person enclosed and cultivated a portion of a burial ground he was guilty of this offence as his act
was calculated to cause annoyance to persons using the burial ground. 35 In a case where a person
entered the house of C with intent to have illicit intercourse with C's widowed sister, the accused
was guilty of an offence under this section, because the illicit intercourse was bound to cause great
annoyance to C.36 Where A secretly entered an exhibition building without a ticket, but without any
of the intents specified in this section, the offence did not amount to criminal trespass. 37 The writing
of love letters by a student to an innocent girl, who is a perfect stranger to him was likely to cause
annoyance to her, therefore, when the student enters the girl's house to deliver such a letter his act
constitutes the offence of criminal trespass. 38 A and B were two rival claimants of a shop. A was in
possession of the shop through a tenant. The tenant vacated the shop whereupon B occupied and put
up his own lock, B was not guilty of criminal trespass because B did not have the requisite intention
to constitute an offence under section 441 and also because A could not at the time of occurrence be
said to be in possession of the shop. 39 Where the accused effected his entry into a market through a
bamboo fence instead of through the proper gate with intent to evade payment of market dues, this
offence was not committed.40
A enters a house with intention of committing theft. But moved by the poverty of the house-
holder he drops a rupee note and leaves. In this case A will be liable for criminal trespass.
442. House-trespass.—Whoever commits criminal trespass by entering into or remaining in any
building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for
the custody of property, is said to commit "house-trespass".
Explanation.—The introduction of any part of the criminal trespasser's body is entering sufficient to
constitute house trespass.
COMMENT
Section 442 prescribes a particular criminal trespass in the nature of house trespass. The
offence of criminal trespass may be aggravated in several ways. If any person commits criminal
trespass by entering into or remaining in any building, he is guilty of house-trespass under this
section. Building is defined asa structure intended for affording some sort of protection to the
1. Budh Singh, (1879) 2 All. 101.
persons dwelling inside it or for the property placed therein.for custody. 41 The mere surrounding of
an open space or ground by a wall or fence of any kind cannot be deemed to convert the open space
34Bhola, (1927) 8 Lah. 331.

35(1971) 6 M.H.C. (Appx) XXV.
36Jiwan Singh, 1908 P.R. No. 17 of 1908.
37Mehervanji Bejanji, (1869) 6 B.H.C. (Cr. C.) 6.
38Trilochan Singh v. Diretor 5.7.5. Institute, A.l.R. 1963 Mad. 68.
39Motilal, (1925) 47 All. 855.
40Vanhappa, (1882) 5 Mad. 382.
41Lakshinan Koundes, A.I.R. 1927 Mad. 543.
itself into a building and trespass thereon does not amount to house trespass. 42 A cattle enclosure,
which was merely a piece of ground enclosed on one side by a wall and on the other side by. a thorn
hedge, was held to be not a building.43 A tin shed open from three sides and adjoining a shop was
held not to be a building.44 In order to constitute an offence under this section, the entry must be
necessarily illegal. No one can be convicted of this offence if he enters into the house of another by
leave or licence.
In Mangaraj Bank v. State of Orissa? it was held that for a "building used as human
dwelling", building need not be used as a place of permanent residence. In this sense school is a
building used as human dwelling. Similarly a Railway waiting room is also a building used as a
human dwelling.45
443. Lurking house-trespass.—Whoever commits house- trespass having taken
precautions to conceal such house-trespass from some person who has a right to exclude or
eject the trespasser from the building, tent or vessel which is the subject of the trespass, is
said to commit "lurking house-trespass".
COMMENT
Ingredients.—This section requires the following ingredients—
(1) trespass;
(2) the trespass being of the special kind designated as house-trespass; and
(3) that trespass being made in a surreptitious manner, called "lurking".
This section deals with further aggravation of criminal trespass due to its lurking character.
The first two ingredients have already been considered under sections 441 and 442 of the Code. The
last ingredient depends upon what is house trespass after "having taken precautions to conceal such
house-trespass from some person who has a right to exclude or eject the trespasser."
In order to constitute lurking house-trespass the offender must take some effective steps to
conceal his presence.46 The accused must take precautions to conceal his house-trespass, that is,
both his entry and criminal design to commit an offence.
444. Lurking house-trespass by night.—Whoever commits lurking house-trespass after sunset and before
sunrise, is said to commit "lurking house-trespass by night".
445. House-breaking.—A person is said to commit "house- breaking" who commits house-trespass if he
effects his entrance into the house or any part of it in any of the six ways hereinafter described ; or if, being in
the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he
quits the house or any part of it in any of such six ways that is to say :
First.—If he enters or quits through a passage made by himself, or by any abettor of the house-trespass,
in order to the committing of the house-trespass.
Secondly.—If he enters or quits through any passage not intended by any person, other than himself or an
abettor of the offence, for human entrance, or through any passage to which he has obtained access by scaling or
climbing over any wall or building.
Thirdly.—If he enters or quits through any passage which he or any abettor of the house-trespass has
opened, in order to the committing of the house-trespass by any means by which that passage was not intended
by the occupier of the house to be opened.
5. 1982 Cr. L.J. 1631 (Orissa).
Fourthly.—If he enters or quits by opening any lock in order to the committing of the house-trespass, or
in order to the quitting of the house after a house-trespass.
Fifthly.—If he effects his entrance or departure by using criminal force or committing an assault or by
threatening any person with assault.
Sixthly.—If he enters or quits by any passage which he knows to have been fastened against such
entrance or departure, and to have been unfastened by himself or by an abettor of the house- trespass.
Explanation.—Any out-house or building occupied with a house, and between which and such house
there is an immediate internal communication, is part of the house within the meaning of this section.
Illustrations
(a) A commits house-trespass by making a hole through the wall of Z's house, and putting his hand
through the aperture. This is house-breaking.
(b) A commits house-trespass by creeping into a ship at port hole between decks. This is a house-
breaking.
(c) A commits house-trespass by entering Z's house through a window. This is house-breaking.
(d) A commits house-trespass by entering Z's house through the door, having opened a door which was
fastened. This is house-breaking.
(e) A commits house-trespass by entering Z's house through the door, having lifted a latch by putting a
wire through a hole in the door. This is house-breaking.
42Palani Goundan, (1869) I Weir 523.

43Kohnu, (1914) P.R. No. 24 of 1914.
44Dal Chand, 1966 Cr. L.J. 236.
45State v. Nihal Singh, (1971) 73 Pun. L.R. 440.
46Budha, 17 Cr. L.J. 304.
(f) A finds the key of Z's house door, which Z had lost, and commits house-trespass by entering Z's
house, having opened the door with that key. This is house-breaking.
(g) Z is standing in his doorway. A forces a passage by knocking Z down, and commits house-trespass
by entering the house. This is house-breaking.
(h) Z, the door-keeper of Y, is standing in Y's doorway. A commits house-trespass by
entering the house, having deterred Z.from opposing him by threatening to beat him. This is
house-breaking.
COMMENT
The sanctity of residential places is protected by this section by meeting out a severe
punishment for invasions to residential places. The section describes 6 ways of house-breaking : 1
to 3 describe an entry which is affected by means of a passage which is not ordinary and usual while
4 to 6 deal with entry by force.
Where a hole was made by burglars in the wall of a house but their way was blocked by the
presence of beams on the other side of the wall, it was held that the offence committed was one of
attempt to commit house-breaking and not actual house-breaking, and illustration (a) to this section
did not apply.
446. House-breaking by night.—Whoever commits house- breaking after sunset and
before sunrise, is said to commit "house-breaking by night".
COMMENT
The previous section gives an elaborate definition of house-breaking. The element of time is added
to this section. The ingredients of this section are :
(1) the breaking, (2) the entry, (3) the place, (4) the time, and (5) the intent.
447. Punishment for criminal-trespass.-—Whoever commits criminal trespass shall be punished with
imprisonment of either description for a term which may extend to three months, or with fine which may extend
to five hundred rupees, or with both.
448. Punishment for house-trespass.—Whoever commits house-trespass shall be punished with imprisonment
of either description for a term which may extend to one year, or with
S. 449 ] 596
fine which may extend to one thousand rupees, or with both.

449. House-trespass in order to commit offence punishable with death.—Whoever commits house-
trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment
for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.
450. House-trespass in order to commit offence punishable with imprisonment for life.—Whoever
commits house-trespass in order to the committing of any offence punishable with imprisonment for life, shall be
punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to
fine.
COMMENT
In Surjit Singh and another v. State of Punjab? accused who were policemen entered house
of deceased with intention to commit rape. They failed in committing rape as sons of deceased
shouted for heIP. On suggestion of one accused that deceased if left alive will implicate all accused
persons, another accused killed her. No specific role was assigned to appellant-accused in killing
her. Further there was no proof of common intention, therefore, his conviction was held liable to be
set aside. However, appellant was held liable to be convicted under Section 450, I.P.C. as he has
made forcible entry in house of deceased.
451. House-trespass in order to commit offence punishable with imprisonment.—Whoever
commits house-trespass in order to the committing of any offence punishable with
imprisonment, shall be punished with imprisonment of either description for a term which may
extend to two years and shall also be liable to fine ; and if the offence intended to be
committed is theft, the term of the imprisonment may be extended to seven years.
COMMENT
This section is like sections 449 and 450 with the difference that here the offence to be
committed by the accused is punishable with imprisonment. Where X was convicted for house-
breaking, his object being to have sexual intercourse with the complainant's wife, it was held that the
conviction was valid. In a case where A enters a house with the intention of committing theft, but
moved by the poverty of the house-holder, drops a ten rupees note and leaves, A would be guilty
under section 451.
452. House-trespass after preparation for hurt, assault or wrongful restraint.—Whoever
commits house-trespass, having made preparation for causing hurt to any person, or for
assaulting any person, or for wrongfully restraining any person, or for putting any person in
fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to fine.
COMMENT
The previous section is a general section. This section provides higher punishment where
house-trespass is committed in order to cause hurt, or to assault or to wrongfully restrain any person.
453. Punishment for lurking house-trespass or house-breaking.—Whoever commits
lurking house-trespass or house-breaking, shall be punished with imprisonment of either
description for a term which may extend to two years, and shall also be liable to fine.
COMMENT
This section punishes the offences defined in sections 443 and 444. In all "house-breaking"
there must be 'house-trespass' and in all 'house-trespass' there must be 'criminal trespass'. To
constitute the offences of 'house-breaking' or 'house-trespass' there must be a criminal intent to
commit 'criminal trespass'.
454. Lurking house-trespass or house-breaking in order to commit offence punishable with
imprisonment.—Whoever commits lurking house-trespass or house-breaking, in order to the
committing of any offence punishable with imprisonment, shall be punished with imprisonment
of either description for a term which may extend to three years, and shall also be liable to
fine, and if the offence intended to be committed is theft, the term of the imprisonment may
be extended to ten years.
COMMENT
When the offence described in the previous section is committed in an aggravated form this
section comes into the. picture.
455. Lurking house-trespass or house-breaking after preparation for hurt, assault or
wrongful restraint.—Whoever commits lurking house-trespass, or house-breaking, having made
preparation for causing hurt to any person, or for assaulting any person or for wrongfully
restraining any person, or for putting any person in fear of hurt or of assault or of wrongful
restraint, shall be punished with imprisonment of either description for a term which may
COMMENT
The relationship of sections 452 and 450 is repeated in their relationship of this section and
section 453. This section covers house-trespass of day time while section 456 covers the house-
trespass during night time.
456. Punishment for lurking house-trespass or house-breaking by night.—Whoever
commits lurking house-trespass by night, or house-breaking by night, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also
be liable to fine.
S. 449 ] 597
COMMENT
When lurking trespass is committed during night this section is applied, the intent of criminal
trespass must be there. Where the culprits, execution creditors, broke open the complainants door
before sunrise with intent to capture his property, for which they were charged of lurking trespass by
night or house breaking by night, it was held that as they were not guilty of the offence of criminal
trespass the charge must be quashed.47
Effecting an entrance into a house at night by scaling a wall was held to constitute house-
breaking by night.48 X entered into a house at night and effected his departure after knocking down a
person who stood in the door way. It was held that conviction for house-breaking by night was
good.49 Where a stranger, uninvited and without any right to be there effected an entry in the middle
of the night in the sleeping apartment of a woman, a member of a respectable household, his
conviction under this section was regarded as good.50 But where the accused was in the house in the
similar circumstances on the invitation of the widowed daughter-in-law of the complainant, the
accused was held not to be guilty under this section.51
457. Lurking house-trespass or house-breaking by night in order to commit offence
punishable with imprisonment.— Whoever commits lurking house-trespass by night, or
house-breaking by night, in order to the committing of any offence punishable with
imprisonment, shall be punished with imprisonment of either description for a term which may
extend to five years, and shall also be liable to fine, and, if the offence intended to be
committed is theft, the term of the imprisonment may be extended to fourteen years.
COMMENT
The aggravated form of offence as described in the preceding section is covered here. Where
X was convicted under this section on the charge that he entered into the complainants house in
order to have sexual intercourse with the wife of the complainant without his consent, it was held
that the conviction was proper and it was not necessary that the complainant should bring a
specificcharge of adultery,' because the omission on the part of the husband to prosecute for adultery
does not absolve the offender from criminal liability under this section.52
1. Jotharam Davay, (1878) 2 Mad. 30.
Where X entered the house of the victim during night to commit rape or to outrage the
modesty of a woman, and there was nothing to show that he took any precaution to conceal his act
of house-trespass, it was held that he was not guilty under this section but only under section 451.53
In Pempilas Bagh v. State,54 it was held that where the accused is found to have entered the
house of another, it cannot be assumed in the absence of other evidence that he had committed
house-breaking. A charge under this section must be substantiated by evidence and cannot be
assumed from nothing. The mere presence of a person inside the house of another would not
establish a case of house breaking. If a person is charged of house-breaking and theft and
commission of theft is established, it would not follow that commission of other offence of house-
breaking has also been established.
Where the accused had entered a dwelling-house during night when he was caught and he had
an iron instrument and a torch light with him, it could be said that the accused had committed the
offence of house-trespass under section 448 and not under section 457.55
458. Lurking house-trespass or house-breaking by night after preparation for hurt, assault
or wrongful restraint.— Whoever commits lurking house-trespass by night, or house-breaking
by night, having made preparation for causing hurt to any person, or for assaulting any person,
or for wrongfully restraining any person, or for putting any person in fear of hurt, or of
assault or of wrongful restraint, shall be punished with imprisonment of either description for
a term which may extend to fourteen years, and shall also be liable to fine.
COMMENT
47 2007 III Cr. L.J. 2768 (S.C.).

48Emdad Ally, (1865) 2 W.R. (Cr.) 65.
49Solai, (1892) 1 Weir 530.
50Kailash Chandra Chakrabarty, (1889) 16 Cal. 657.
51Lajji Ram, (1898) P.R. No. 12 of 1898.
52Bandhu, (1894) Unrep. Cr.C. 689.
53Jaldeep Singh, (1952) 2 Raj. 745.
541984 Cri. L.J. 828 (Orissa).
55Ibid.
S. 449 ] 598
This section is like sections 452 and 455. This section is applicable to the house-breaker who
actually has himself made preparations for causing hurt to any person, etc. and not to his
companions as well who themselves have not made such preparations.56
459. Grievous hurt caused whilst committing lurking house-trespass or house-breaking.—
Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt to
any person, or attempts to cause death or grievous hurt to any person, shall be punished with
imprisonment for life, or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.
COMMENT
The offence under this section is the aggravated form of the offence under section 453. This
section applies if the trespasser causes to any person grievous hurt or attempts to cause death or
grievous hurt during the commission of house-breaking and the offence continues so long as the
trespasser remains on the properly in possession of another.
460. All persons jointly concerned in lurking house-trespass or house-breaking by night
punishable where death for grievous hurt caused by one of them.—If, at the time of the
committing of lurking house-trespass by night or house-breaking by night, any person is guilty
of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any
person, every person jointly concerned in committing such lurking house-trespass by night or
house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either
1. Kangla, (1900) 23 All. 82.
description for a term which may extend to ten years, and shall also be liable tc fine.
COMMENT
The co-extensive and constructive liability of persons jointly concerned in committing
'lurking house-trespass' or 'house-breaking by night' is dealt with under this section during the course
of which death or grievous hurt to any one is caused. Every accused person is punished for the act of
any one of them.
The words 'at the time of committing of is very important as while running away if the
offender causes grievous hurt, he will not be punishable under this section.'
461. Dishonestly breaking open receptacle containing property.—Whoever dishonestly oi
with intent to commit mischief, breaks open or unfastens any closed receptacle which contains
or which he believes to contain property, shall be punished with imprisonment of eithei
description for a term which may extend to two years, or with fine, or with both.
COMMENT
This and the following section provide for the same offence.
462. Punishment for same offence when committed by person entrusted with
custody.—Whoever, being entrusted with any closed receptacle which contains or which he
believes to contain property, without having authority to open the same, dishonestly, or with
intent to commit mischief, breaks open or unfastens that receptacle, shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine,
or with both.
COMMENT
As soon as the receptacle is broken open or unfastened the offence is complete.
56Ghulam, (1923) 4 Lah. 399.
1. Muhammad, (1921) 2 Lah. 342.

CHAPTER XVII!
OF OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY MARKS
463. Forgery.—Whoever makes any false document or false electronic record or part of a document or
electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or
title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent
to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document.—A person is said to make a false document or false electronic record,
—
First.—Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any '[electronic signature] or any electronic record;
(a) makes any mark denoting the execution of a document or the authenticity of the '[electronic
signature]; with the intention of causing it to be belived that such document or part of ducument,
electronic record or '[electronic signature] was made, signed, sealed, executed, transmitted or affixed by
or by the authority of a person by whom or by whose authority he knows that it was not made, signed,
sealed, executed or affixed; or
Secondly.—who, without lawful authority, dishonestly, or fraudulently, by cancellation or otherwise,
alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed
with [electronic signature] either by himself or by any other person, whether such person be living or dead at the
time of such alteration ; or
Thirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or
an electronic record or to affix his '[electronic signature] or any electronic record knowing that such person by
reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does
not know the contents of the document or electronic record or the nature of the alteration.
Illustrations
(a) A has a letter of credit upon B for rupees 10,000 written by Z, A in order to defraud B, adds a cipher
to the 10,000 and makes the sum 1,00,000 intending that it may be believed by B that Z so wrote the letter. A has
committed forgery.
(b) A, without Z's authority, affixed Z's seal to a document purporting to be a conveyance of an estate
from Z to A, with the intention of selling the estate to B and thereby of obtaining from B the purchase money. A
has committed forgery.
(c) A picks up a cheque on a banker signed by B, payable to bearer, but without any sum having been
inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupees. A commits
forgery.
(d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting the sum payable and
authorizes B to fill up the cheque by inserting a sum not exceeding ten thousand rupees for the purpose of
making certain payments. B fraudulently fills up the cheque by inserting the sum of twenty thousand rupees. B
commits forgery.
(e) A. draws a bill of exchange on himself in the name of B without B's authority intending to discount it
as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with
intent to deceive the banker by leading him to suppose that he had the security of B, and thereby to discount the
bill, A is guilty of forgery.
(f) Z's will contain these words.—"I direct that all my remaining property be equally divided between A,
B, and C." A dishonestly scratches out B's name, intending that it may be believed that the whole was left to
himself and C. A has committed forgery.
(g) A endorses a Government promissory note and makes it payable to Z or his orderby writing on the bill the
1.words
Substituted by thelnformation Technology (Amendment) Act, 2008 (10
"Pay to Z or his order" and signing the endorsement. B dishonestly erases the words "Pay to Z or
his order" and thereby converts the special endorsement into a blank endorsement. B commits forgery.
(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of bis
estate, executes a conveyance of the same estate to B, dated six months earlier than the date
of conveyance to Z, intending it to be believed that he had conveyed the estate to B before
he conveyed it to Z. A has committed forgery.
(i) Z dictates his will to A. A intentionally writes down a different legatee from the
legatee named by Z, and by representing to Z that he has prepared the will according to his
instructions, induces Z to sign the will. A has committed forgery.
(j) A writes a letter and signs it with B's name without B's authority, certifying that A is a man of
good character and in distressed circumstances from unforeseen misfortune, intending by means of such
letter to obtain alms from Z and other persons. Here, as A made a false document in order to induce Z to
part with property, A has committed forgery.
(k) A without B's authority writes a letter and signs it in B's name certifying to A's character,
intending thereby to obtain employment under Z. A has committed forgery inasmuch as he intended to
deceive Z by the forged certificate and thereby to induce Z to enter into an express or implied contract for
service.
Explanation 1.—A man's signature of his own name may amount to forgery.
Illustrations
(a) A signs his own name to a bill of exchange intending that it may be believed that the bill was
drawn by another person of the same name. A has committed forgery.
(b) A writes the words "accepted" on a piece of paper and signs it with Z's name, in order that B
may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the bill as though
it has been accepted by Z. A is guilty of forgery ; and if B, knowing the fact, draws the bill upon the paper
pursuant to A's intention, B is also guilty of forgery ;
(c) A picks up a bill of exchange payable to the order of a different person of the same name. A
endorses the bill in his own name, intending to cause it to be believed that it was endorsed by the person to
whose order it was payable ; here A has committed forgery.
(d) A purchases an estate sold under execution of a decree against B. B, after the seizure of the
estate in collusion with Z, executes a lease of the estate to Z at a nominal rent for a long period and dates
the lease six months prior to the seizure, with intent to defraud A, and to cause it to be believed that the
lease was granted before the seizure. B, though he executes the lease to his own name, commits forgery by
antedating it.
(e) A, a trader, in anticipation of insolvency, lodges effects with B for A's benefit, and with intent to
defraud his creditors ; and in order to give a colour to the transaction writes a promissory note binding
himself to pay to B a sum for value received, and antedates the note, intending that it may be believed to
have been made before A was on the point of insolvency. A has committed forgery under the first head of
the definition.
Explanation 2.—The making of a false document in the name of a fictitious person, intending it to
be believed that the document was made by a real person, or in the name of a deceased person, intending
it to be believed that the document was made by the person in his life-time, may amount to forgery.
Illustration
A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of
such fictitious person with intent to negotiate it. A commits forgery.
Explanation 3.—For the purposes of this section the expression "affixing '[electronic signature]"
shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information
Technology Act, 2000.
COMMENT
In State of U.P. v. Ranjit Singh,57 the respondent who was stenographer of a Judge of Allahabad High
Court was charged for fabricating a forged bail order for accused Khelawan. The High Court had held that since
the accused has not signed the bail order, the same cannot be said to constitute a document and the ingredients of
the offence under sections 466, and 468, Indian Penal Code have not been satisfied. The bail order in question
was written by the accused. The Supreme Court held that in view of the fact that under section 464,
Indian Penal Code, a person is said to make a false document who dishonestly or fraudulently
makes, signs, seals or executes a document or part of a document, the reasoning of the High Court
that the bail order without the signature cannot be said to be a document thereby not attracting the
provisions of section 464, Indian Penal Code is wholly unsustainable.
It was further held that it is by virtue of preparing a false document purporting it to be a
document of a court of Justice and by virtue of such document a person who is not entitled to be
released on bail could be released then, undoubtedly damage or injury has been caused to the public
at large and therefore, there is no reason why under such circumstances the accused who is the
author of such forged document cannot be said to have committed offence under section 466, Indian
Penal Code. A person is said to do a thing fraudulently if he does that thing with intent to defraud
but not otherwise. The expression 'defraud' involves two elements, namely, deceit and injury to the
person deceived. Injury is something other than economic loss and it will include any harm
whatever caused to any person in body, mind, reputation or such others. A benefit or advantage to
the deceiver will almost always cause loss or detriment to the deceived. The preparation of a forged
bail order by the utilisation of which the person concerned obtained an advantage, of being released
deceiving the courts and the society at large cannot but be said to have made the document
fraudulently, thereby attracting section 466 of the Indian Penal Code.
Affixing digital signature.—As provided by clause (d) of section 2(1)-of the Information
Technology Act, 2000 "Affixing digital signature" with its grammatical variations and cognate
expressions means adoption of any methodology or produce by a person for the purpose of
authenticating an electronic record by means of digital signature.
57A.I.R. 1999 S.C. 1201 ; 1999 Cri. L.J. 1890 (S.C.)

465. Punishment for forgery.—Whoever commits forgery shall be punished with imprisonment of
either description for a term which may extend to two years, or~wHBr fine, or with both.
COMMENT
Forgery is defined in section 463 of the Code. Making of a false document or part of a
document with any one of the intents specified in section 463 constitutes forgery. What amounts to
making of a false document is given in section 464 of the Code.
Ingredients.—The following are essential ingredients of the offence of forgery :—
1. The making of a false document or part of it.
2. Such making should be with intent
(a) to cause damage or injury to (i) public, or (ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property; or
(d) to cause any person to enter into express or implied contract; or
(e) to commit fraud or that fraud may be committed.
Making of a false document.—The offence of forgery is constituted by simple making of a
false document as explained in section 464. It is not necessary that the document should be
published or made in the name of an existing person. This has been made clear by explanation 2.
But the document must either be legally capable of effecting the fraud intended or it must appear on
its face, to be such as, if true, would possess some legal validity. 1 A writing, which though not legal
evidence of the matter expressed may yet be a document, if the parties framing it believed it to be,
and intended it to be, evidence of such matter. 2 Thus forging of a deed will constitute the offence of
forgery, although a statute requires the deed to be in a particular form and to comply with certain
requisites and the deed in fact is neither in that form nor complies with those requisites.3
To cause damage or injury to the public or to any person.—Some
1. Badan Singh, (1922) 3 Lah. 373.
2. Shefait Ali, (1868) 2 Beng. L.R. 12 (Cr.).
3. Lyon's case, (1813) Russ & Ry. 255.
damage or injury must be intended to be caused by the false document to the public or to any
individual. Thus intention is the essence of this offence. Causing of actual damage, injury or fraud
is not necessary.' A Police-Officer who makes any changes in his diary so as to show that he had not
kept certain persons under surveillance is not liable for this offence because there is no risk of loss
or injury to any individual and the element of fraud as defined in section 25 of the Code is absent.58
To support any claim or title.—Illustrations (f), (g), (h) and (i) make it clear that even if a
man has a legal claim or title to property, he will be liable for the offence of forgery if he
counterfeits documents in order to support it. An actual intention to convert an illegal or doubtful
claim into an apparently legal claim is dishonest and will constitute the offence of forgery. 59 The
word 'claim' is not intended to mean to a claim of property only, it includes claim to the custody of
children or wife or a claim to be admitted as a student to any course of study or to any
examination.60
A obtains a cheque of Rs. 1,000, from 'B' and after adding a zero he presented it to the bank
for being cashed. The bank officer expressed suspicion about the writing. 'A' takes the cheque back
and destroys it. In this case A is liable for committing forgery because by adding a zero he had
made a false document with an intention to claim more money from the bank. He has presented the
cheque before bank and has taken it back only when suspicion was expressed by the bank officer.
Therefore in this case A is liable for committing forgery under section 465, as well as for attempting
to cheat the bank under section 415, Indian Penal Code.
To cause any person to part with property.—Where a false document is made with an
intention to cause any person to part with his property it is not necessary that the property must be
in existence at the time when the false document is made. For instance, if B gives an order to C to
make a silver tea-set for him and A before the tea-set is made writes a false letter purporting, but
falsely, to be signed by B, authorising C to deliver to D the tea-set when made, A will be guilty of
an offence under this section by writing that false letter with intent to cause C to part with the tea-
set, when made.61
Intent to commit fraud.—The offence under this section is complete if a document, false in fact, is made with intent to commit a fraud, although it may not
have been made with any one of the other intents specified in section 463 of the Code.62 To constitute fraud an intention to deceive and by means of deceit to obtain an
advantage is necessary and if a document is fabricated with such an intention the offence of forgery is committed. 63 In Dr. Vimla's case/ the Supreme Court has held that the
expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property,
whether movable or immovable, or of money, and it will include an harm whatever caused to any person in body,
1. Kalyanmal, A.I.R. 1937 Nag. 45.
8. (1963) 2 Cr. L.J. 434.

58Sanjiv Ratanappa v. Emperor, A.I.R. 1932 Bom. 545.
59Maheschandra Prasad, (1943) 22 Pat. 292.
60Sliashi Blmshan, (1893) 15 All. 210.
61Ibid.
62Kotamraju Venkatarayadu, (1905) 28 Mad. 90.
63Muhammad Saeekhan, (1898) 21 Alld. 113.
S. 465 ] OF OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY
MARKS 725
mind, reputation or such others. It is non-economic or non-pecuniary loss. A benefit or advantage to

the deceiver will almost always cause loss or detriment to the deceived. Even in those cases where
there is a benefit or advantage to the deceiver but no corresponding loss to the deceived the latter
condition (i.e. injury) is satisfied.
Intention to defraud any particular person is not necessary, a general intention to defraud will
be sufficient to constitute this offence.' But there must at all events be a possibility of some person
being defrauded by the forgery.64 A man may have an intention to defraud and yet there may not be
any person who could be defrauded by his act. Thus the offence of forgery requires two things : an
intention to defraud and the possibility of some person being defrauded, although there may not be
any person who could actually be defrauded. For example, where B has no account in a bank but A
supposes that B has one, and on that supposition A forges B's name, there would be an intent to
defraud although no person could be defrauded.65
If a person 'A', having the blank acceptance of B, be authorised to write on it a bill of
exchange for 2000 and he writes on it a bail of exchange for 5000, with intent to defraud either the
acceptor or any other person, A will be liable for forgery. 66 Where A signs the name of a well known
artist on a picture " painted by 'A' himself and exposes it for sale in a shop, A would be guilty under
this section because A defrauds by giving an impression that the picture exhibited for sale was
painted by a renowned artist whereas in fact it was painted by A himself.
Making of a copy.—The offence of forgery is committed by a person who fabricates a false
document purporting to be a copy of another document for the purpose of the same being used in
evidence. Where A in a suit for possession of land, to support his pedigree, put in a deed of dower,
and a deed of security purporting to be copies of the original documents filed in a previous suit, but it
was found that both the copies contained two more names of witnesses than the original, A would be
guilty of forgery.67
Makes.—Making a false document is defined in section 464. Making of document does not
mean writing or 'printing' it, but signing or otherwise executing it. The word 'makes' means creates or
brings into existence.68 Making of a document does not mean the writing out of the form of the
instrument, but the sealing or signing it as a deed or note. A false document does not mean the
writing of any of words which in themselves are innocent, but the affixing of seal or signature of
some person to the document, knowing that the seal or signature is not his and that he gave no
authority to affix it. Falsity consists in the document, or part of it, being signed or sealed with the
name or seal of a person who did not in fact sign or seal it.69
Signs, seals or executes.—Signing or sealing a document completes its execution. Putting a seal to genuine signature to a document which is invalidwithout a seal is
a forgery.70
1. Dhunum Kaz.ee, (1882) 9 Cal. 53.

Dishonestly or fraudulently.—In order to constitute an offence of forgery the document rrust
be made dishonestly and fraudulently.71 Where A removes from the file of the court a written
statement filed by him and substitutes another writing as if to show that the latter writing was the one
which was originally filed, it amounts to making of a false document fraudulently and dishonestly. 72
Where a person signed a receipt and obtained delivery of milk powder from railway for his benefit,
he was guilty of making a false document fraudulently and dishonestly. 73 Where A had endorsed his
Post office National Saving Certificates in favour of Ration Department and B his heir after the death
of A got retransfer of certificates in the name of A and encashed them by signing A's name and
attesting it, B would be liable for forgery as he has obtained money dishonestly and fraudulently.74
64Marcus, (1846) 2 C. & K. 356.

65Nash's case, (1852) 2 Den. Cr. C. 493.
66Hart, (1836) 7 C & P. 652.
67Surendra Nath Ghosh, (1910) 14 C.W.N. 1076.
68Province of Bihar v. Surendra Prasad, A.I.R. 1951 Pat. 86.
69Per Garth. C.J. in Reasat Ali, (1818) 7 Cal. 352.
70Collins, (1844) 1 Cox 52.
71Sanjiv v. Emperor, A.l.R. 1932 Bom. 545.
72Dharmendranath v. Rex, A.l.R. 1949 All. 353.
731969 Ker. L.T. 1 (S.C).
74G.S. Bansal v. Delhi Administration, A.l.R. 1963 S.C. 1577.
In Kotamraju Venkatarayadu? a candidate for the matriculation examination of the University
forwarded to the Registrar of the University a character certificate and a certificate that he had
completed his twentieth year which purported to be signed by the Headmasters of a recognised
school, but the certificate was, in fact, not signed by him but was signed by the candidates in his own
handwriting. The certificate was held to be a forged document and the accused was liable for forgery.
Clause second of section 464.—Clause second of section 464 requires dishonest or fraudulent
cancellation or alteration of a document in any material part without lawful authority after it has been
made or executed by a person who may be living or dead. Where the date in a bond was altered, even
though the alteration was not required to bring the claim within limitation 75 or the document was not
necessary for the case of the party using it, s the offence of forgery was committed. Where accused
made unauthorised alteration in T.A. Bills and there was no dishonest intention or intention to
defraud any one the offence of forgery was not committed.76
Clause third of section 464.—Clause third of section 464 deals with the cases where the
person making the document is not supposed to know its contents owing to unsoundness of mind or
intoxication or deception.
In a case the accused A obtained signature of B his officer upon a false document by inserting
the document in a heap of papers placed for signature before B. 'A' was not guilty of forgery as no
deception was practised on B to prevent him from knowing the nature of the document.77
Explanation No. 1.—This explanation makes it sufficiently clear that there may be sufficient falsity where a man only signs his own name if he does so in order
that it may be mistaken for the signature of another person of the same name. If a cheque payable to B or order get into the hands of A, who is another person of the same name
as the payee and A knowing that he was not the real person in whose favour it was drawn, endorses it, he would be guilty of forgery.78
Explanation No. 2.—This explanation makes it clear that a document will be forged if it is a
false document even in the name of a fictitious person. In a case the accused advertised that a book
on English idioms by Robert S. Williams was ready and would be despatched against money sent.
Writing a letter under the signature of Robert S. Williams he requested the postal authorities to pay
money sent to R.S. Williams to one Seshagiri Rao and got the money himself signing receipts as
Seshagiri Rao. It was found that both R.S. Williams and Seshagiri Rao were fictitious beings. The
accused was guilty of cheating and forgery.79
6. (1950) 28 Mad. 90.
An idol is a juridical person and therefore, forged signature in a document of an idol would
8. Daya Ram, (1885) P.R. No. 16 of 1885.
constitute the offence of forgery.80
Joint act.—If more than one persons combine to forge an instrument, and each executes by
himself a distinct part of the forgery, and they are not together when the instrument is completed, all
of them would be guilty as principal. 81 Each one of them is a principal, though he does not know by
whom the other parts are executed, and though it is finished by one alone, in the absence of others.82
Abetment.—Where A attested a forged document purporting to discharge a decree debt and
was interested in bringing the document into exercise it was held that A was guilty of abetting the
offence of forgery as the document was not complete until he had signed.83
Cases.—Where A had already paid to B, die sum of debt which he had taken from him and
obtained a receipt thereof. The receipt was lost by A and he, therefore, in order to save himself from
liability of any claim in future prepares another receipt and makes B's signature thereon. A would not
be liable for the offence of forgery because there is r,o dishonest intention to defraud and nobody
could actually be defrauded because money was already paid.
A having lost the receipt for debt which he has paid to B makes out another receipt himself
and when B sues him he puts up the made up receipt in evidence. In this case since there was no
dishonest intention on the part of A as he has already paid the debt to B, therefore A has committed
no offence. A's act does not constitute the offence of forgery because there was no dishonest
intention to defraud as the debt was paid so there was no question of causing any wrongful gain or
wrongful loss. In this case no body could be defrauded as the money was already paid.
466. Forgery of record of Court or of Public register etc.—Whoever forges a document or an electronic
record, purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage
or burial or a register kept by a public servant as such, or a certificate or a document purporting to be made by a
public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings
75Rain Narain, (1881) RR. No. 14 of 1881.

76(1955) 8 Sau. L.R. 226.
77Nujeebutoolah, (1861) 7 W.R. (Cr.) 20.
78Mead v. Young, (1790) 4 T.R. 28.
79Queen Empress v. Pera Raju, (1890) 13 Mad. 27.
80In re Vadivelu, A.I.R. 1944 Mad. 77.
81Bingley's case, (1821) Russ & Ry. 446.
82Kilkwood's case, (1831) 1 Mood. 304.
83In re, P. Rama Naidu, A.I.R. 1942 Mad. 92.
therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine.
Explanation.—For the purposes of this section register includes any list data or record of any entries
maintained in the electronic form as defined in clause (r) of sub-section (1) of Section 2 of the Information
Technology Act, 2000.
COMMENT
This section applies to those cases in which a person forges a document or a record so that it
may appear to have been issued by a public office, e.g., forging a marriage certificate.84
Fraudulent intention must exist in forger's mind only. —A person who forges a document with a
view that it may be accepted as notice under seal and signature of a Deputy Collector in a pending
suit will be guilty of forgery. It is not necessary for this offence that the intention of using the
document fraudulently should also exit in the mind of any person other than the person fabricating
the document.85
Alteration or mutilation of Government Papers.—In Vallabhram's case,86 a Government
correspondence was kept with a clerk by the order of superior officer. Accused Nos. 2 and 3 were
interested in this document. When the clerk was not in his house the accused No. 1, a clerk of the
same office, without his permission removed the correspondence. It was for some time with accused
Nos. 2 and 3 and later on it was replaced from where it was removed. Later on it was discovered that
some of the pages of the correspondence were missing and remaining had either been mutilated or
altered. It was held that accused Nos. 2 and 3 were punishable under this section and section 193 for
altering documents.
As defined by clause (r) of Section 2(1) of the Information Technology Act, 2000 'electronic
form' means as follows—
"Electronic form.—Electronic form with reference to information,
means any information generated, sent, received or stored in media,
magnetic, optical computer memory micro film, computer generated micro
fiche or similar device."
467. Forgery of valuable security, will, etc.—Whoever forges a document which purports
to be a valuable security, or a will, or an authority to adopt a son or, which purports to give
authority to any person to make or transfer any valuable security, or to receive the principal,
interest or dividends thereon, or to receive or deliver any money, movable property, or valuable
security, or any document purporting to be an acquittance or receipt acknowledging the
payment of money, or an acquittance or receipt for the delivery of any movable property or
valuable security, shall be punished with imprisonment for life, or with imprisonment of either
COMMENT
The offence under this section is an aggravated form of the offence prescribed by the
preceding section. The forged document should be one of those mentioned in this section. An
unregistered document, until registered is not a valuable security, nevertheless it will be regarded a
valuable security within the meaning of this section. 87 A blank paper or a bond barred by limitation is
not a document of the kind prescribed in this section. 88 Forgery of a true copy of document which is a
valuable security is not punishable under this section. 89 A person, if by false representation receives
money from a postman that he is the payee when in fact he is not the payee, he will be punishable
under this section.90 If a person fraudulently prepares a registered sale-deed and says that the deed
was executed by the widow of a man and by this act he intends to deceive and hurt the reversioners
of that man he will be guilty of this offence.91
468. Forgery for purpose of cheating.—Whoever commits forgery, intending that the
document or electronic record forged shall be used for the purpose of cheating, shall be
punished with imprisonment of either description for a term which may extend to seven years,
84Juggan ball, (1880) 7 C.L.R. 356.

85Haradhan Maiti, (1887) 14 Cal. 513 (F.B.).
86Vallabhram, (1925) 27 Bom. L.R. 1391.
87Kashi Nath Naek, (1897) 25 Cal. 207.
88Raghoonandan Pattronuvees, (1871) 15 W.R. (Ci\) 19.
89Gobinda Prasad, (1962) I Cr. L.J. 316.
90Jogidas, (1921) 24 Bom. L.R. 99.
91Gaga Dibya, (1942) 22 "at. 95.
S. 471 1 606
OF OFFENCES RELATING TO DOCUMENTS AND TO
PROPERTY MARKS
COMMENT
This section makes punishable forgery for the purpose of cheating, e.g., falsification of
account books for deception,92 or forgery of a school attendance register for the purpose of obtaining
a Government grant.93 For the application of this section, it is not necessary that the accused must
really cheat. His intention or his object is enough for this purpose. 94 A lends Rs. 1,000 to B and
requires him to give a promissory note for the amount. B makes out a promissory note for Rs. 100
only in a language unknown to A and gives it to him. A discovers the fraud one month later and
alters the amount in the promissory note to Rs. 1,000/- Here A by so altering the amount commits no
offence because there was no dishonest intention as the amount was already paid by A to B. But B
would be liable for committing forgery for purposes of cheating under this section.
In Narayan Lai v. State of Rajasthan,95 a Government servant made an attempt to cheat the
Government by submitting forged medical bills. A vaidya prepared the documents by antedating it
and another person signed the document by putting different dates on it to show that the
Government servant visited their dispensary on two different occasions prior to the actual date of
preparation of document. Both the accused are covered by the definition of "making false
document" by preparing parts of document separately by acting in concert with each other.
469. Forgery for purpose of harming reputation.—Whoever commits forgery, intending
that the document or electronic record forged shall harm the reputation of any party, or
knowing that it is likely to be used for that purpose, shall be punished with imprisonment of
either description for a term which may extend to three years, and shall also be liable to fine.
COMMENT
A person who forges a document for the purpose of harming the reputation of another person,
will be guilty of an offence under this section as well as Section 500 of the Code.
470. Forged document.—A false document or electronic record made wholly or in part
by forgery is designated "forged document or electronic record".
COMMENT
This section defines a forged document. If a document is made false either in its totality or in
part by forgery, it will be termed 'a forged document'. Once there is a forgery in relation to a
document, whatever be the nature of forgery, it will be regarded. as forged document.
471. Using as genuine a forged document.—Whoever fraudulently or dishonestly uses as
genuine any document or electronic record which he knows or has reason to believe to be a
forged document or electronic record, shall be punished in the same manner as if he had
forged such document or electronic record.
COMMENT
Section 470 defines what is a forged document and Section 471 makes punishable using a
forged document as genuine. For an offence under this section it is necessary that the document
should be used by a person who has knowledge or reason to believe that the document is forged.
Ingredients.—The following are ingredients of this section.
(1) Fraudulent or dishonest use of a document as genuine.
(2) The person using it must have knowledge or reason to believe that the document
in question is forged.
Fraudulently or dishonestly.—In Jibrial Diwan v. State of Maharashtra,1 a cultural show was
organised by Sri Azhar Hussain, a Minister in the State of Maharashtra wherein some artists were
invited. Two letters were prepared on the letterhead of the Minister by one Mr. Patel inviting Raja
Murad and Javed Khan to this show. These letters were forged as they did not bear the signature of
92Baneessur Biswas, (1872) 18 W.R. (Cr.) 46.

932/ Kuppan Pillai, (1885) Weir (3rd ed.) 336.
94Shivaji Narayan, (1970) 73 Born. L.R. 215.
951984 Cr. L.J. 1495 (Raj.).
S. 471 1 607
PROPERTY MARKS
the Minister. The invitation letter prepared by Sri Patel was delivered to the invitees by the appellant
who attended the show. The second accused Mr. Patel who had prepared those letters was acquitted
by the High Court. The appellant was not the forger of those letters. It was held that an offence
under Section 471 requires some action resulting in a disadvantage which but for the deception the
person defrauded would have avoided. In this case by the delivery of forged letters, there is neither
any wrongful gain to any one nor any wrongful loss to another. The act of the appellant could not
thus be termed to have been done dishonestly. Likewise the appellant cannot be said to have any
intention to defraud because his action resulted in no disadvantage to any one which but for the
deception the person defrauded would have acted otherwise. Therefore the basic ingredients of the
act done 'dishonestly' or 'fraudulently' being missing, the conviction of the appellant under Sections
471 and 465 cannot be held proper.
Uses as genuine.—To constitute an offence under this section genuine use of a forged
document is essential. A mere statement that a document is genuine, does not amount to using it as
genuine.2 This view of Madras High Court has been dissented from by Calcutta High Court which
has taken the view that where a person fraudulently or dishonestly presents a document to another
person as being what it purports to be or causes the same to be so presented, knowing or having
reason to believe that it is forged, the document is used as genuine within the meaning of this
section. It will be immaterial whether it was produced by the accused of his own motion or under
the order of a Court if in the event he uses it as genuine. 3 In another case the same High Court has
taken the view that the nature of the user is immaterial. 4 Effective use of the document is also not
essential. The use to which the document is put by the offender is the only requirement and not
whether the party to whom the document is presented accepts or treats that document as genuine. 5
Acceptance by the Court of such a document is not essential. 6 In the case of Bansi Sheikh,1 the
accused who was a mortgagee defendant alleged that he was in possession of the property originally
as a tenant of the owner and that he had subsequently purchased it by a registered agreement. The
agreement was not filed in the trial Court but the suit was decreed. The accused then filed it along
with his memorandum of appeal. The agreement was a forged document. The agreement was held to
be used by the accused within the meaning of this section.
The use of a document contemplated by this section must be voluntary one and not the mere
production of the document in compliance with an order of the Court which must be obeyed." Filing
of a forged document along with plaint
1. 1997 Cri. L.J. 4070 (S.C).
2. Muthiah Chetty, (1911) 36 Mad. 392.
3. Mohit Kumar Mukerjee, (1925) 52 Cal. 881.
4. Superintendent and Remembrance of Legal Affairs, Bengal v. Daulatram Mudi, (1932) 59 Cal. 1233.
5. Shivaji Narayan, (1970) 73 Bom. L.R. 215.
6. Bansi Sheikli, (1923) 51 Cal. 469.
7. Ibid.
8. Kedarnath, A.l.R. 1935 All. 940.
amounts to a 'user' of the document. 96 Using a forged cheque as genuine with the intention of getting time for
repayment of loan, will be an offence under this section even though loan was repaid and the cheque returned by
the creditor and it was not known who forged it. 97 A person giving a forged document to the investigating officer
during the police investigation and thus causing that officer to do something which otherwise he would not have
done is guilty of having used forged document within this section. 98 One C in order to qualify for appearance at a
certain competitive examination attached a copy of certificate certified as a true copy of original along with his
application. When required to produce the original he produced it. The date of birth in the original certificate was
changed from 5th Jan., 1901 to 15th Jan., 1904 so that he may appear in the examination. It was held that the
original document was forged and C knew that the original document was a forged one inasmuch as the original
date was changed with intent to cause damage and injury to other candidates for the examination and to support
C's claim to appear.99
In Tuisibhai Jivabhai Changani v. State of Gujarat? the appellant/accused used the duplicate certificate
with changes as true certificate knowing it to be false in material particular and got admission in polytechnic
course. He was convicted by the Trial Court for offences under sections 198, 420 and 471. The Trial Court had
noted that it was not proved that the mark-sheet had been forged by the appellant but he was at least aware that
this was not correct mark-sheet and had still used it to gain admission. Therefore he was convicted. The Supreme
Court did not interfere with the conviction but looking to the nature of the offence and the fact that the
appellant's past and present records have been good and also the fact that he has already lost his career and is
now married the punishment awarded was reduced to the period already undergone..
96Idu Jolaha, A.I.R. 1918 Pat. 274.

973 Sau L.R. 8.
98S.C. Biswas, A.I.R. 1920 Pat. 300.
99Emp. v. Charan Singh, A.I.R. 1929 Lah. 152.
S. 471 1 608
PROPERTY MARKS
If a forged document is used before a Court which has no jurisdiction to entertain the proceedings in
which it is produced, no offence under this section shall be deemed to have been committed. 100
2. Knows or has reason to believe to be a forged document.—These are the words of general application.
The person who uses a forged document as genuine must have knowledge or reason to believe that the document
was forged. The mere fact that the document bears a suspicious appearance on the face of it cannot be regarded
as prima facie evidence of guilty knowledge of the accused that it is not a genuine document but a forged one. 101
Mere possession of a forged document is not enough. 102 A person files a document and is interested in
establishing its contents, mere this fact does not raise a presumption that he was aware that the document was
forged, conduct of the accused is the principal criterion of the guilty knowledge. 103
Use of copies of forged document.—The use of certified copies of forged originals by a person who knows that the originals are forged amounts to making use of forged documents
within the meaning of this section.104 Mere circumstances that the document had been forged would not be sufficient to justify a conviction. In order to sustain conviction it is necessary to prove
that the use of the document has been fraudulent and the person using the document knew or had reason to believe that the originals were forged. 105 The Supreme Court has taken the view that this
section penalises the use of a forged document as genuine but where an attested copy would serve the purpose of the original forged document, production of such a copy would amount to use of
the original forged document, as genuine.
5. 2001 Cr. L.J. 741 (S.C).
12. Budhu Ram y. .State of Rajasthan, (1953) 3 S.C.R. 376.
100Sumat Prasad, A.I.R. 1942 All. 42.

101K.B. Gani v. The Custodian of Evacuee Property Hyderabad. A.I.R. 1952 Hyd. 152.
102In re Ramaswamy Chetty, A.I.R. 1949 Mad. 434.
103Mubarak Mi v. K.E., (1912) 17 C.W.N. 94.
104Mulai Singh, (1906) 28 All. 402.
105Mathura Prasad v. K.E., A.I.R. 1926 Oudh 255.
609 [ S. 472
INDIAN PENAL CODE
There mere fact that the document was forged would not conclude the matter for a conviction
under this section. It must be established that the accused was a party to the forgery. 106 Thus under
this section what is to be determined is whether the use made of the* document constituted only
attempt to use it as genuine. If the attempts does not bear fruit at all, user remains only an attempt.
Something must be done or omitted to be done by anybody else to show that the document was
treated to be genuine. The degree of success attained by accused in using the document is not
material.107
In Galla Nageswara Rao v. State of A.P. ,108 the accused produced a certificate of date of
birth alleged to have been issued by his school, for alteration of his birth to get the benefit of a few
years of more service before his superannuation. The representation of the accused along with the
certificate was forwarded by the Branch Manager of State Bank of India to an inquiry officer
appointed to enquire into the genuineness of the said certificate. On inquiry the certificate was
found to be a forged one. It was held that the accused shall be deemed to have knowledge that the
document is forged. The presumption in such a case would be that with dishonest intention by using
a forged document, the accused tried to derive benefit. The fact that the document was not acted
upon is immaterial and for conviction under section 471, the user of forged document need not be
an effective one.
Punishment.—The Madras High Court is of the opinion that a person who both forges a
document and uses as genuine can be sentenced for both the offences. 109 A person dishonestly using
as genuine a forged document can be punished under section 471 with the punishment provided by
section 467.110 According to Supreme Court where using of forged permit is very common, deterrent
punishment is justified.111
472. Making or possessing counterfeit seal, etc. with intent to commit forgery punishable
under section 467.— Whoever makes or counterfeits any seal, plate or other instrument, for
making an impression, intending that the same shall be used for the purpose of committing
any forgery which would be punishable under section 467 of this Code, or with such intent,
has in his possession any such seal, plate or other instrument, knowing the same to be
counterfeit, shall be punished with imprisonment for life, or with imprisonment of either
COMMENT
This section makes punishable making or possessing counterfeit seal, etc. with intent to
commit forgery which is punishable under section 467. It is similar to sections 235, 255 and 256.
473. Making or possessing counterfeit seal, etc. with intent to commit forgery punishable
otherwise.—Whoever makes or counterfeits any seal, plate or other instrument for making an
impression, intending that the same shall be used for purpose of committing any forgery, which
would be punishable under any section of this chapter other than section 467 or, with such
intent, has in his possession any such seal, plate or other instrument, knowing the same to be
counterfeit, shall be punished with imprisonment of either description for a term which may
COMMENT
This section makes punishable making or possessing counterfeit seal, etc.
with the intention to commit forgery which is punishable otherwise than under section 467.
474. Having possession of document described in section 466 or 467, knowing it to be
forged and intending to use it as genuine.—Whoever has in his possession any document or
106M.M. Trivedi v. State of M.P., A.l.R. 1960 MR 269.

1071970 All. W.R. (H.C.) 734.
1081992 Cri. L.J. 2601 (A.P.).
109Sriramulu Naidu, (1928) 52 Mad. 532.
110A.l.R. 1927 Oudh. 630.
111Cajjan Singh v. State of M.P., A.l.R. 1965 S.C. 1921.
610 [ S. 472
INDIAN PENAL CODE
electronic record, knowing the same to be forged and intending that the same shall fraudulently
or dishonestly be used as a genuine shall, if the document or electronic record is one of the
description mentioned in section 466 of this Code, be punished with imprisonment of either
description for a term, which'may extend to seven years, and shall also be liable to line; and
if the document is one of the description mentioned in section 467, shall be punished with
imprisonment for life, or with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
COMMENT
This section resembles with sections 242, 243 and 259.
475. Counterfeiting device or mark used for authenticating documents prescribed in section
467 or possessing counterfeit marked material.—Whoever counterfeits upon, or in the substance
of, any material, any device or mark used for the purpose of authenticating any document
described in section 467 of this Code, intending that such device or mark shall be used for
the purpose of giving the appearance of authenticity to any document then forged or thereafter
to be forged on such material, or who, with such intent, has in his possession any material
upon or in the substance of which any such device or mark has been counterfeited, shall be
punished with imprisonment for life, or with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
COMMENT
This section supplements the provisions of section 472. This section punishes counterfeiting
of marks, etc. if they are counterfeited with a view to appear authentic.
476. Counterfeiting device or mark used for authenticating documents other than those
described in section 467, or possessing, counterfeit marked material.—Whoever counterfeits upon,
or in the substance of any material, any device or mark used for the purpose of authenticating
any document or electronic record other than the documents described in section 467 of this
Code, intending that such device or mark shall be used for the purpose of giving the
appearance of authenticity to any document then forged or thereafter to be forged on such
material, or who, with such intent, has in his possession any material upon or in the substance
of which any such device or mark has been counterfeited, shall be punished with imprisonment
of either description for a term which may extend to seven years, and shall also be liable to
fine.
COMMENT
This section is similar to preceding section but the preceding section punishes counterfeiting
of more valuable documents than this section and therefore, the punishment imposed in that section
is more severe than this.
477. Fraudulent cancellation, destruction, etc. of will, authority to adopt, or valuable
security.—Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the
public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or deface,
or secrets or attempts to secrete any document, which is or purports to be a will, or an
authority to adopt a son, or any valuable security, or commits mischief in respect to such
document, shall be punished with imprisonment for life or with imprisonment of either
COMMENT
The expression "document" used in this section means a genuine document. The offence
defined in this section cannot be committed in connection with a .document which is forged.
477-A. Falsification of accounts.—Whoever, being a clerk, officer or servant, or employed or acting in
the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or
falsifies, any book, electronic record, paper, writing, valuable security or account which belongs to or is in the
possession of his employer, or has been received by him for or on behalf of his employers, or wilfully and with
intent to defraud,makes or abets the making of any false entry in, or omits or alters or abets the omission or
alteration of any material particular from or. in, any such book, electronic record, paper, writing, valuable
security or accounts, shall be punished with imprisonment of either description for a term which may extend to
seven years, or with fine, or with both.
Explanation.—It shall be sufficient in any charge under this section to allege a general intent to defraud
without naming any particular person intended to be defrauded or specifying any particular sum of money
intended to be the subject of fraud, or any particular day on which the offence was committed.
COMMENT
This section is connected with book-keeping and written accounts. This section punishes
falsification of books and accounts even though no evidence is available to prove misappropriation
of specific money on specific occasions.
Ingredients.—Following are the ingredients of this section :
(1) The person coming within its purview must be a clerk, an officer, or a servant or
he might be working as a clerk, or an officer, or a servant.
(2) He must wilfully and with intention to commit fraud—
(i) destroy, alter, or falsify any book, paper, writing or valuable
security, which—
(a) belongs to his employer or is in his possession, or
(a) it has been obtained by him for or on behalf of his employer;
611 [ S. 472
INDIAN PENAL CODE
(ii) make or abet the making of any false entry in or omit or
alter or abet the omission or alteration of any material particular from
or in any such book, paper, writing, valuable security or account.
Falsification to conceal previous Fraud.—With a view to conceal a previous fraud, if a
person makes false entries in a book, or register, he will be covered by the provisions of this
section. To bring a person within the purview of this section what is essential is that he must have
intentionally and with a view to commit fraud, made alteration in a book, paper, etc. If the intention
with which false document is prepared is to conceal a false or dishonest work which has been done
previously then such an intention cannot be regarded different from the intention to commit fraud.
To conceal a fraud committed previously is also a fraud.112
Since this section is connected with falsification of accounts, therefore, to replace new court
fee stamp by an old stamp or to make alteration in the figure written on the document do not come
within this section.113 Where the accused falsified a measurement book of repairs to buildings and a
bill with intent that a contractor's bill for the repair done might be passed without actual
measurement it was held that the act of the accused amounted to a fraudulent falsification of
accounts.114
OF PROPERTY AND OTHER MARKS
478. Trade mark.—[Omitted].
479. Property mark.—A mark used for denotings that movable property belongs to a
particular person is called a property-mark.
COMMENT
This section defines property mark. It means such mark which is used to show that any
movable property belongs to whom. In English law no distinction has been recognised between
Trade mark and Property mark.
480. Using a false mark.—[Omitted].
481. Using a false property mark.—Whoever marks any movable property or goods or any case, package or
other receptacle containing movable property or goods, or uses any case, package or other receptacle having any
mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked
or any property or goods contained in any such receptacle so marked, belong to a person to whom they do not
belong, is said to use false property mark.
COMMENT
Offence defined in this section is related to the using of false property mark. Property mark is
indicative of the fact that a person owns the movable property. That movable property may be of
one-kind or of many kinds.
Ingredients.—There are two ingredients to this section :—
(1) Marking any movable property or goods, or any case, package or receptacle
containing goods; or using any case, package or receptacle, with any mark thereon.
(2) Such marking or using must be in a manner so as to arouse a belief that the
property or goods so marked or property or goods contained in such receptacle, belonged to
the person to whom they did not belong. Trade mark differs from property mark in the sense
that former refers to
manufacture and quality of a commodity while latter refers to the ownership of a commodity In
other words one refers to goods and the other to ownership.
482. Punishment for using a false property mark.—Whoever uses any false property mark shall, unless he
proves that he acted without intent to defraud, be punished wiih imprisonment of either description for a term
which may extend to one year, or with fine, or with both.
483. Counterfeiting a property mark used by another.—Whoever counterfeits any property mark used by any
other person shall be punished with imprisonment of either description for a term which may extend to two
484. Counterfeiting a mark used by a public servant.—Whoever counterfeits any property mark used by a
public servant, or any mark used by a public servant to denote that any property has been manufactured by a
particular person or at a particular time or place, or that the property is of a particular quality or has passed
through a particular office, or that it is entitled to any exemption, or uses as genuine any such mark knowing the
same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.
COMMENT
The offence defined in this section is an aggravated form of the offence defined in the
preceding section. Where the mark used by a public servant is counterfeited, provision for enhanced
punishment is made.
112R.K. Dalmia, (1962) 2 Cr. L.J. 805.

113Bibudhananda Chakravarti, (1919) 47 Cal. 71.
114Sukhamoy Maitra, (1937) 16 Pat. 688.
612 [ S. 472
INDIAN PENAL CODE
485. Making or possession of any instrument for counterfeiting a property
mark.—Whoever makes or has in his possession any die, plate or other instrument for the
purpose of counterfeiting a property mark, or has in his possession a property mark, for the
purpose of denoting that any goods belong to a person to whom they do not belong, shall be
COMMENT
This section punishes the making or possession of instruments for counterfeiting a property
marks.
486. Selling goods marked with a counterfeit property mark.—Whoever sells, or exposes,
or has in possession for sale, any goods or things with counterfeit property mark, affixed to
or impressed upon the same or to or upon any case, package or other receptacle in which
such goods are contained, shall, unless he proves—
(a) that, having taken all reasonable precautions against committing an offence against this
section, he had at the time of the commission of the alleged offence, no reason to suspect the
genuineness of the mark, and
(b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his
power with respect to the persons from whom he obtained such goods or things, or
(a) that otherwise he had acted innocently,
be punished with imprisonment of either description for a term which may extend to one year, or with fine, or
with both.
COMMENT
This section punishes those who sell or have in possession for sale goods marked.
487. Making false mark upon any receptacle containing goods.—Whoever makes any false
mark upon any case, package, or other receptacle containing goods, in a manner reasonably
calculated to cause any public servant or any other person to believe that such receptacle
contains goods which it does not contain or that it does not contain goods >vhich it does
contain, or that the goods contained in such receptacle are of a nature or quality different
from the real nature or quality thereof, shall, unless he proves that he acted without intent to
defraud, be punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
COMMENT
This section is more comprehensive than sections 482 and 486. The fraudulent making of
false mark for the purpose of deceiving public servant, viz. custom officers, is punishable under this
section.
488. Punishment for making use of any such false mark.—Whoever makes use of any such false mark in any
manner prohibited by the last foregoing section shall, unless he proves that he acted without intent to defraud, be
punished as if he had committed an offence against that section.
489. Tampering with property mark with intent to cause injury.—Whoever removes, destroys, defaces or adds
to any property mark, intending or knowing it to be likely that he may thereby cause injury to any person, shall
be punished with imprisonment of either description for a term which may extend to one year, or with fine, or
with both.
COMMENT
This section requires criminal intention or knowledge on the part of the accused.
It was held in K. Hasitn v. State of Tamil Nadu,115 that section 489-A not only deals with
complete act of counterfeiting but also covers case where accused performs any part of process of
counterfeiting.
OF CURRENCY NOTES AND BANK NOTES
489-A. Counterfeiting currency notes or bank notes.—Whoever counterfeits, or knowingly performs any
part of the process of counterfeiting any currency note or bank-note, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable
to fine.
Explanation.—For the purpose of this section and of sections 489-B, 489-C, 489-D and 489-E, the
expression "bank-note" means a promissory note or engagement for the payment of money to bearer on demand
issued by any person carrying on the business of banking in any part of the words, or issued by or under the
authority of any State or Sovereign power, and intended to be used as equivalent to, or as a substitute for,
money.
COMMENT
Sections 489-A, 489-B, 489-C, 489-D and 489-E, have been added to secure protection to
currency notes and bank notes from being counterfeited. Before insertion of these sections the
offences relating to counterfeiting of notes were
1152005 Cri. L.J. 143 (S.C).

613 ! S. 489-C
INDIAN PENAL CODE
- 489-C ] OF OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY MARKS 737
governed by sections 467, 471 and 472. This section is similar to sections 231 and 255.
In State of Kerala v. Mathai Verghese? it was held that the prohibition against counterfeiting
of currency notes in section 489-A operates in respect of currency notes of not only India but of all
other countries also. Had the intention of the legislature been to restrict it only to Indian currency
notes, it would have used that expression. The expression 'currency notes' is large enough to cover
currency notes of 'any country'.
489-B. Using as genuine, forged or counterfeit currency notes or bank-notes.—Whoever sells to, or buys
or receives from, any other person or otherwise traffics in or uses as genuine any forged or counterfeit currency
note or bank note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished
with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years,
COMMENT
This section is similar to sections 239, 241 and 258. It provides against trafficking in forged
or counterfeited notes.
Section 489-B relates to using as genuine forged or counterfeited currency notes or bank
notes. The object of Legislature in enacting this section is to stop the circulation of forged notes by
punishing all persons who knowing or having reason to believe the same to be forged do any act
which could lead to their circulation.116
489-C. Possession of forged or counterfeit currency notes or bank notes.—Whoever has in his
possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same
to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be
punished with imprisonment of either description for a term which may extend to seven years, or with fine, or
with both.
COMMENT
This section resembles with sections 242, 243 and 257. It is connected with counterfeit
currency notes or bank notes. Simply to keep in possession counterfeited notes is not an offence.
Ingredients.—For the application of this section, it is necessary to prove that :—
(1) one knew or had reason to believe that the note kept in his possession was
forged; and
(2) his intention was to use it as genuine.
In Re Md. Yusuf? it was held that the expression "any currency notes" in section 489-C is not
restricted to Indian currency notes alone, it includes dollar, bills also. Explanation to section 489-A
shows that for the purposes of sections 489-A to 489-E the expression "bank notes" means a
promissory note etc. issued by or under the authority of any State or sovereign power. The absence
of such an explanation to section 489-C would indicate that the expression "any currency notes" is
not restricted to Indian currency notes alone.
Possession and knowledge that currency notes were counterfeited notes are essential
elements of Section 489-C. This section is not restricted to Indian currency notes alone.117
1. 1987 Cri. L.J. 308 (S.C).

489-D. Making or possessing instruments or materials for forging or counterfeiting currency notes or
3. 1986 Cri. L.J. 2011 (Mad.).
bank-notes.—Whoever makes or performs any part of the process of making, or buys or sells or disposes of, or
has in his possession, any machinery, instrument or material for the purpose of being used, or knowing or having
reason to believe that it is intended te be used, for forging or counterfeiting any currency-note or bank-note, shall
be punished with imprisonment for life, or with imprisonment of either description for a term which may extend
COMMENT
This section is similar to sections 233, 234, 256, 257 and 485.
489-E. Making or using documents resembling currency-note or bank-notes.—(1) Whoever makes, or
causes to be made, or uses for any purpose whatsoever, or delivers to any person any document purporting to be,
or in any way resembling, or so nearly resembling as to be calculated to deceive, any currency-note or bank-note
shall be punished with fine which may extend to one hundred rupees.
(2) If any person, whose name appears on a document the making of which is an offence under sub-
section (1), refuses, without lawful excuse, to disclose to a police officer on being so required the name and
address of the person by whom it was printed or otherwise made, shall be punished with fine which may extend
to two hundred rupees.
(3) Where the name of any person appears on any document in respect of which any person is charged
with an offence under sub-section (1), or on any other document used or distributed in connection with that
document, it may, until the contrary is proved, be presumed that the person caused the document to be made.
COMMENT
116K. Hasim v. State of Tamil Nadu, 2005 Cri. L.J.' 143 (SC.).
117Ibid.
615 ! S. 489-C
INDIAN PENAL CODE
This section was introduced by Amending Act VI of 1943 because photoprints and other
reproductions of currency notes and bank notes though printed for innocent purposes had passed
into circulation. It was done so because it was considered undesirable in a poor country like India,
where a large mass of population is illiterate and ignorant, to keep such things in circulation.
CHAPTER XIX
OF THE CRIMINAL BREACH OF CONTRACTS OF SERVICE
490. Breach of contract of service during voyage or journey.—[Rep. by the Workmen's Breach of
Contract (Repealing) Act, 1925 (3 of 1925), S. 2 and Sch.]
•491. Breach of contract to attend on and supply wants of helpless person.—Whoever, being bound by a
lawful contract to attend on or to supply the wants of any person who, by reason of youth, or of unsoundness of
mind, or of disease or bodily weakness, is helpless or incapable, of providing for his own safety or of supplying
his own wants, voluntarily omits so to do, shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine which may extend to two hundred rupees, or with both.
COMMENT
Ingredients.—The following are the ingredients of this section :—
1. Binding of a person by a lawful contract.
1. The contract must be in relation to a person who by reason of (a) youth, or (b)
unsoundness of mind, or (c) disease, or (d) bodily weakness is unable to provide for his
safety or supply his wants, and the contract was entered into to attend on or supply the wants
of such a person.
3. Voluntary omission to perform the contract by the person bound
by it.
This section makes punishable the breach of a contract entered into to attend on and supply
wants of helpless persons. The authors of the Indian Penal Code while expressing their views said :
"We agree with the great body of jurists in thinking that in general a mere breach of contract ought
not to be an offence but only to be the subject of a civil action." There are, however, some
exceptions to this general rule. We are of the view that those who contract to supply wants of an
infant, a sick or a helpless person lay themselves under an obligation of a very peculiar kind and if
they omit to discharge their duty may with propriety be punished. They further said, "the misery
and distress which their neglect may cause is such as the largest pecuniary payment would not
repair."
492. {Repealed]
\
CHAPTER XX OF OFFENCES RELATING TO
MARRIAGE
493. Cohabitation caused by a man deceitfully inducing a belief of lawful

marriage.—Every man who by deceit causes any woman who is not lawfully married to him
to believe that she is lawfully married to him and to cohabit or have sexual intercourse with
him in that belief, shall be punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to line.
COMMENT
Ingredients,—The following are elements of offence under this section :—
(1) Deceit causing a false belief in the existence of a lawful marriage.
(1) Cohabitation or sexual intercourse with the person causing such belief.
This section punishes a married or unmarried man who induces a woman to become, as she
thinks, his wife, but in fact his concubine. For completion of offence it is necessary that the woman
on the belief of being that man's wife submits herself to him for cohabitation or sexual intercourse
and that man cohabits with her. The form of the marriage ceremony depends on the race or religion
to which the parties to the marriage belong. If the parties to the marriage do not belong to the same
race or religion, then they can change their religion. This offence shall be deemed to have been
committed when a person falsely induces a woman to believe that he belongs to the same caste or
religion to which she belongs. A marriage solemnised on this belief, in reality is void, but is valid
according to the law under which she lives.
617 ! S. 489-C
INDIAN PENAL CODE
The offence under this section can be punished as rape under section 375, clause (4).
494. Marrying again during lifetime of husband or wife.—Whoever, having a husband
or wife living, marries in any case in which such marriage is void by reason of its taking
place during the life of such husband or wife, shall be punished with imprisonment of either
Exception.—This section does not intend to any person whose marriage with sucli husband or wife has
been declared void by a Court of competent jurisdiction,
nor to any person who contracts a marriage during the life of a former husband oi wife, if such husband
or wife, at the time of the subsequent marriage, shall have beei continually absent from such person for the
space of seven years, and shall not have beei heard of by such persoii as being alive within that time, provided
the person contracting sue) subsequent marriage shall, before such marriage takes place, inform the person with
whon such marriage is contracted of the real State of facts so far as the same are within his or he knowledge.
COMMENT
This section makes punishable that marriage which under English law i known as 'bigamy.'
This section applies to all Hindus, Christians and Parsi whether male or female. But in case of
Muslim it applies only to females bv not to males because under Muslim personal law a male can
have four wives i a time but a female is not permitted to have more than one husband at one time
Ingredients.—This section has following ingredients :
(1) The accused was already married to some person;
(2) Marriage with such a person was valid;
(1) The person whom, 'he or she has married was still alive;
(2) The accused has married another person.
(1) The accused was married to some person.—For the application of section 494 it is
necessary that the accused must have been married to some person when he or she contracted
second marriage. The first marriage must be a valid marriage and it must be subsisting.' If the first
marriage is invalid or it has ceased to exist, no offence shall be committed by contracting a second
marriage. Divorce dissolves a valid marriage, hence divorced persons are entitled to remarry. Under
Muslim law a woman, on termination of her marriage either by death or divorce is required to
observe iddat before contracting second marriage. But if she marries second time before completing
her iddat she will not be guilty of bigamy.118
Option of puberty.—Another unique feature of Muslim Personal law is option of puberty,
that is when a child is given in marriage by any person other than the father or grand-father, he or
she has the option of either ratifying it or repudiating it on attaining puberty provided it was not
consummated. If the girl on attaining puberty contracts second marriage thereby repudiates the first,
she will not be guilty of offence mentioned under this section. Thus, B a Mohammadan girl was
given in marriage by her mother to one J who was sentenced to a term of imprisonment for theft
before she attained puberty. On attaining puberty she contracted marriage with one P. When
released from imprisonment he brought an action against B and P for prosecuting them for bigamy.
It was held that B and P ha<3 not committed any offence because B as given in marriage by her
mother during her minority and on attaining puberty she had option of either ratifying or
repudiating such marriage. Here it will be presumed that by contracting second marriage with P she
repudiated her first marriage with J.119
Contract empowering wife to divorce herself.—If the parties to the marriage happened to
be Muslims and there is a contract between husband and wife at the time of marriage which
empowers the wife to divorce herself in specific contingencies and she exercises that power on the
happening of any one of them, the divorce will take effect as if it has been pronounced by the
husband. No declaration from a Court of law would be necessary. A marriage with a girl after such
a divorce is not covered by this section.120
Mens rea i.e. guilty knowledge is a necessary element of the offence under this section.
Where an accused when he contracts the second marriage acts on the bona fide belief that his
marital ties with his previous spouse has been severed under the deed of divorce entered into
between the parties he is entitled to acquittal of the charge of bigamy.121
118Abdul Ghani v. Azizul Huq, (1911) 39 Cal. 409.

119Badal Aurah, (1891). 19 Cal. 79, 82.
120Siraj Mian v. A. Majid, 1953 Cr. L.J. 1504.
121Sankaran Sukumaran v. Krishnan Saraswaty, 1984 Cr. L.J. 317 (Ker.).
2. Marriage with such a person was valid.—For attracting the provisions of this section it is necessary that his or her first marriage was valid. If first marriage
is void then both partners are free to go through second valid marriage. The validity of the first marriage shall be determined on the basis of the personal law to which they
belong. If the first marriage is void then section 494 will not come into operation but if first marriage is voidable and a decree of nullity has not been pronounced by a
competent Court of law section 494 shall come into operation. If however, first marriage is neither void nor voidable but simply irregular and any spouse to such a marriage
contracts a second marriage, he or she, as the case may be, shall be punished under this section.
1. Smt. Padl v. Union of India, A.I.R. 1963 Him. Pra. 16.

3. Having a husband or wife alive.—In order to attract the provisions of this section it
must be established that at the time of second marriage, the previous valid marriage must be
subsisting,122 that is both the partners to marriage must be alive. Under Muslim and Christian
personal laws a valid marriage is terminated by death of either spouse and second marriage is
permissible. Similarly under Hindu law, on the death of one spouse the living spouse can contract a
second marriage and he or she will not attract the penal provision of this section. A marriage
entered into by a Hindu with second wife after Hindu Marriage Act, 1955 during life time of his
first wife is void by virtue of sections 5, I I and 17 of this Act and hence subsequent marriage by
wife with another is no offence under this section. 123 Under Muslim law a married woman during
the life time of her husband and during the subsistence of her mam age cannot contract second
marriage because under that law polyandry is not permitted but during the life time of his wife a
Muslim male can contract second marriage validly without attracting penal provision of this section
because a Muslim male can have four wives at a time under that law.
4. The accused married another person.—This section comes into operation when the
accused having been married once and marriage still subsisting has gone through marriage second
time. The word "marries" used in this section means "marries by some form of marriage known to
and recognised by the law. This section does not, of course, refer to a valid marriage, yet if the form
of the second marriage is recognised by the law that would be sufficient to satisfy the provisions of
this section.124 The word "marry" in section 494 means going through a form of marriage whether it
be legal and valid or illegal and invalid. 125 The Supreme Court has observed that these words must
mean "whoever marries validly". If the marriage is not a valid one according to the law applicable
to the parties no question of its being void by reason of its taking place during the life of wife or the
husband of the person arises. If the marriage is not a valid marriage it is no marriage in the eye of
law.126 In Kanwal Ram's127 case the Supreme Court held that in a bigamy case the essential
ceremonies constituting second marriage must be proved. Mere admission of marriage by the
accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case. If
the second marriage is not solemnised in the form recognised by the law it would be simply an
adulterous union.128
The fact that the husband had executed a release deed in favour of the wife which he claimed
operated to dissolve the marriage according to the custom of the community to which they
belonged, would not operate as dissolution ofmarriage. 129 A second marriage during the life time of
the first husband and without the first marriage being annulled by divorce or in some formal
manner recognised by caste usage as equivalent to divorce is an offence under section 494. Such a
second marriage though recognised by custom is against public policy and cannot be recognised by
the courts.130
Conversion from Hinduism.—An apostate from Hinduism is not absolved from all civil
obligation the matrimonial bond remains in existence. Hindu law does not recognise polygamous
122Varum v. Biulhu, A.l.R. 1942 Sind 92.

123Smt. Padi v. Union of India, A.l.R. 1963 Him. Pra. 16.
124Mr. Kalan v. Emperor, A.l.R. 1938 Sind. 127.
125Emp. v. Mr. Soni and others, A.l.R. 1936 Nag. 13, 70.
126Bhaurao, (1965),67 Bom. L.R. 423 (S.C).
127Kanwal Ram v. The H.P. Administration, A.l.R. 1966 S.C. 614,
128I.L.R. (1963) Cut. 464.
129Cuanasoundary v. Nalla Tliainbi, A.I.R. 1945 Mad. 516.
130Narayan v. £., A.I.R. 1932 Mad. 561.
619 ! S. 489-C
INDIAN PENAL CODE
marriage therefore, if a Hindu woman who has a living Hindu husband marries either a Muslim or
Christian even after embracing Islam or Christianity commits bigamy.131
Conversion from Islam.—When a person apostates from Islam his marriage comes to an
end and the wife will not be guilty of bigamy if she goes through second marriage. However, now
under section 4 of the Dissolution of Muslim Marriage Act, 1939 renunciation of Islam does not by
itself operate to dissolve her marriage, after conversion she would be required to obtain a decree for
the dissolution of her marriage on any one of the grounds mentioned in section 2 of the Act.
Conversion from Christianity.—If a Hindu embraced Christianity and married a Christian
woman according to the rites of Roman Catholic religion and subsequently he converts to Hinduism
and marries with a Hindu girl while his Christian wife is still living, he will not be guilty of
bigamy.132 If an Indian Christian domiciled in India marries an Indian Christian woman domiciled
in India and subsequently embraces Islam, marries a Muslim woman, his second marriage shall be
legal.133 But if a Christian woman who had married a Christian according to Christian rites converts
to Islam during the life time of her husband and marries a Muslim, she will be guilty of bigamy.134
Conversion from zoroastrianism.—Conversion of one of the parties who were married
according to the zoroastrian rites, to the Islam does not dissolve the marriage.135
Exception.—To repel the charge imposed under this section the accused may plead in his
defence following facts :
(1) That his first marriage was null and void even though he had not obtained a
declaration to that effect under section 18, of the Divorce Act.136
(2) Absence of other spouse for a period of seven years should be established. If the
second marriage takes place on the expiry of seven years under a bona fide belief based on
reasonable grounds that the other spouse is dead, no offence under this section shall be
deemed to have been committed.137
(3) If it is established that the accused and his first wife are living separately for
preceding seven years, then it will be duty of the accused toestablish that during that period
he was aware of her existence. In absence of such a proof from the prosecution, second
marriage of the accused shall be regarded as valid.138
(4) That at the time of second marriage, he informed the fact of his first marriage to
the other party.139
If these facts are established by the accused he or she shall be protected from the offence of
bigamy.
Abetment.—For abetment of the offence under this section it must be established that the
person accused of abetment knew that the person he married was the wife of another man, although
the girl for want of intelligence or knowledge was incapable of committing this offence. 140 The
person who officiates at a bigamous marriage is an abettor punishable under Sections 494 and
109.141 But mere consent of persons to be present at an illegal marriage or their presence in
pursuance of such consent or the grant of the accommodation in a house for the marriage. 142 In
order to succeed in a prosecution for abetment of bigamy the prosecution must establish that the
person who is alleged to have committed bigamy was lawfully married once and the person who
abetted the second marriage knew that the person contracting second marriage was lawfully married
131Badansa Rowther v. Fatima Bai, 26 M.L.J. 260.

132A. Marathanvna v. A. Munuswami, A.I.R. 1951 Mad. 888.
133J.J.C. Dutta v. A.C. Sen, A.I.R. 1939 Cal. 417.
134Mst. Rusi, (1918) P.R. No. 5 of 1919.
135R. Khanuin v. Bomanji K., 48 Bom. L.R. 864.
136Cuanasoundary v. Nalla Thambi, A.I.R. 1945 Mad. 516.
137Tolson, (1899) 23 Q.B.D. 168.
138Curgenven, (1865) L.R.I.C.C.R. 1.
139Enai' Bcebce, (1865) 4 W.R. (Cr.) 25.
140Nand Lid Singh, (1902) 6 C.W.N. 343.
141Umi, (1882) 6 Bom. 126.
142Ibid.
and his first wife was still living. 143 To attract the conviction for abetment for offence under this
section it must be found that the accused abetted the woman intentionally.144
Case.—In Indu Bhagya Natekar v. Bhagya Pandurang Natekar? the appellant India Natekar
was legally wedded wife of Bhagya Pandurang Natekar. She filed a complaint that her husband
Pandurang contracted a second marriage with one Manjula Narayan Kadam on 15-11-1978. She
relied on marriage certificate issued by the Registrar of Marriages in which accused No. 2 Ganpat
Sharma Natekar (her husband's cousin) was a witness to the marriage. The marriage was conducted
by a priest who had also signed the application for registration of the marriage.
It was held that presumption would arise that forms and ceremonies necessary to constitute a
valid marriage had been duly complied with and the document with the evidence of the complainant
which had virtually gone uncontroverted in that there was hardly any cross-examination on the
point was sufficient to hold that the charge was proved. It is not correct to say that in every case of
bigamy, unless the second marriage can be proved by bringing in the evidence of the performance
of the ceremonies itself a conviction under Section 494 is virtually impossible. Accused can be
convicted even if there is other reliable evidence to establish the charge.
In P. Satyanarayana v. P. Mallaiah? the respondent was the first duly married wife of the
appellant who allegedly married with a second wife and was therefore, charged for bigamy under
Section 494 of the Indian Penal Code. The
8. 1992 Cri. L.J. 601 (Bom).

9. 1997 Cri. L.J. 211 (S.C).
143Shaft Ullah v. £., A.l.R. 1934 All. 589.

144B.B. Sarkar v. E., A.l.R. 1940 Cal. 477.
621
accused pleaded that he married ten years after his first wife deserted him and went away. It was
held that such plea of guilt could at best be understood to mean that the husband had taken a wife,
but that admission did not necessarily mean that he had taken the second wife after solemnising of
his Hindu marriage with her after performing due ceremonies for the marriage. Such plea, which he
need not have even entered upon, and which was ignorable by the court, did not absolve the
prosecution to otherwise prove its case, that the marriage in question was performed in a regular
way so as to visit him with penal consequences. Therefore, the appellant was held not liable for the
be ied or offence of bigamy.
495. Same offence with concealment of former marriage from person with whom
lates
subsequent marriage is contracted.—Whoever commits the offence defined in the last preceding
109.4 section having concealed, from the person with whom the subsequent marriage is contracted,
ence for the fact of the former marriage, shall be punished with imprisonment of either description for
the itted a term which may extend to ten years, and shall also be liable to fine.
Kcond COMMENT
ried ait The offence described under this section is an aggravated form of the offence defined in
for jman Section 494.
496. Marriage ceremony fraudulently gone through without lawful marriage.—Whoever,
dishonestly or with a fraudulent intention, goes through the ceremony of being married,
knowing that he is not thereby lawfully married, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to line.
COMMENT
Ingredients.—There are two essential ingredients of this section :—
1. Dishonestly or with a fraudulent intention going through the ceremony of
marriage.
2. Knowledge on the part of the person going through the ceremony that he is not
thereby lawfully married.
This section punishes fraudulent or mock marriages. This section applies to such cases in
which marriage ceremony is complete but in no circumstances constitutes a valid marriage and in
which one of the parties is induced to believe that a valid marriage has been constituted thereby.
Distinction between Section 493 and Section 496.—The two sections are somewhat alike but
they differ in certain respects. Under Section 493 deception is practised by a man on the woman and
sexual intercourse takes place as a consequence of deception. Under Section 496 there is no need of
deception, cohabitation or sexual intercourse. For the application of this section it is necessary that
is
one of the parties to the marriage must have misused marriage ceremony dishonestly or
fraudulently. In brief, we can say that the offence mentioned in Section 493 can be committed by a
duly
male only whereas the offence mentioned in Section 496 can be committed either by a male or a
female.
497. Adultery.—Whoever has sexual intercourse with a person who is and whom he
knows or has reason to believe to be wife of another man, without the consent or connivance
of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the
offence of adultery, and shall be punished with imprisonment of either description for a term
which may extend to five years, or with fine, or with both. In such case the wife shall not be
punishable as an abettor.
COMMENT
This section punishes the offence of adultery committed with a married woman without the
consent or connivance of her husband. The main feature of this offence is that the male offender
alone has been made punishable.1 This
622 [ S- 497
offence is committed by a third person against a husband in respect of his wife. If an act of sexual
intercourse takes place between a married man and an unmarried woman or with a widow or with a
married woman whose husband consents to it, this offence shall not be deemed to have been
committed. It is not required for an offence under this section that the offender should know whose
wife the woman is but he must know that she was a married woman.'
In Smt. Sowmithri Vishnu v. Union of India and another,145 it was contended that section 497
is violative of Arts. 14 and 15 of the Constitution on the ground that it makes an irrational
classification between men and women in that.
(1) it confers upon the husband the right to prosecute the adulteror but it does not
confer any right upon the wife to prosecute the woman with whom her husband has
committed adultery;
(2) it does not confer any right on the wife to prosecute the husband who has
committed adultery with another woman; and
(3) it does not take in cases where the husband has sexual relations with an
unmarried woman with the result that the husbands have, as it were, a free licence under the
law to have extra marital relationship with unmarried woman.
But the Supreme Court rejected these arguments and held that it cannot be said that in
defining the offence of adultery so as to restrict the class of offender to men, any constitutional
provision is infringed. It is commonly accepted that it is the man who is seducer and not the
woman. The Court further observed that this position may have undergone some change over the
years, that women may have started seducing men but it is for the legislature to take note of this
transformation and amend section 497 appropriately.
It was further contended that since section 497 does not contain provision for hearing wife,
therefore, it is violative of Art. 21 of the Constitution i.e. freedom of personal liberty. In connection
with this question the Court observed that this section is not violative of Art. 21 because, although
this section does not contain provision for shearing of married woman with whom the accused is
alleged to have committed adultery but if she makes an application in the trial court that she should
be given opportunity of being heard, she would be given that opportunity. Neither substantive nor
adjective criminal law bars the Court from affording a hearing to a party which is likely to be
adversely affected by the decision of the court directly or indirectly.
Ingredients.—The following ingredients are essential for this offence—
1. Sexual intercourse by a man with a woman who is or whom he knows or has
reason to believe to be the wife of another man.
2. Such sexual intercourse must be without the consent or connivance of the
husband.
1. Such sexual intercourse must not amount to rape.
Woman must be married.—Since in an offence of adultery marriage is an ingredient,
therefore, the fact of marriage must be established fully. 146 It must be established that the marriage
as an event took place and the parties are not simply living together. The particular number of
witnesses must be examined to prove
1. Madhub Chandcr Giri, (1873) 21 W.R. (Cr.) 13.
1451985 Cr. L.J. 1302 (S.C).

146Dcdip Singh v. R., A.l.R. 1949 All. 237.
S. 497 ] OF OFFENCES RELATING TO MARRIAGE 623
the fact of marriage.' The evidence of the husband and wife that marriage between them took place
is not sufficient to prove it.147 According to Rangoon High Court when a man and woman lived
long together as husband and wife, a presumption arises in favour of the marriage which must be
rebutted.148
Connivance.—Connivance is the willing consent to a conjugal offence or a culpable
acquiescence in the course of conduct reasonably likely to lead to the offence being committed. 149 It
is an act of the mind. It implies knowledge and acquiescence. According to the Allahabad High
Court, connivance is a figurative expression meaning a voluntary blindness to some present act or
conduct, to something going on before the eyes or something which is known to be going on
without any protest or desire to disturb or interfere with it. 150 Where the woman has been
abandoned by her husband an inference of connivance cannot be drawn by a Court of law. 151 In a
case the husband was driven out from his house by his wife and the accused lived with her. The
husband, though saw this but filed complaint only after 18 months since cohabitation commenced.
The delay in filing complaint was not explained by the husband, therefore, his act was held
amounting to connivance.152
Wife is not nunishable as abettor.—Under section 497, wife is not punishable as abettor
because authors of the Code were of the view that Indian society is of different kind which may
well lead a man to pause before he determines to punish the infidelity of wives. 153 But the reason
given by the authors of the Code for not punishing the wife has been criticised. Where woman has
abetted adultery she should be punished like a man.
Adultery, whether a continuing offence.—Every act of sexual intercourse amounts to an
offence of adultery and if a person has sexual intercourse with a woman several times, it cannot be
said that the offence is continuing. 154 According to Nagpur High Court it is undesirable that there
should be successive prosecutions.'" Complaint by aggrieved person is necessary. Under this
section the Court shall take cognizance of the offence only upon a complaint made by the husband
of the woman. When the husband is absent complaint can be made by the person who has been
entrusted with the care of the woman with prior permission of the Court. Where the husband is idiot
or lunatic or is unable due to sickness to make a complaint it can be made by some other person on
his behalf. The complaint has to be filed under section 199 Cr. R Code, 1898, or section 198 (2),
Cr. P. Code, 1973.
Where a charge for adultery under this section is definite as regards to the place where
offence was said to have been committed but specific dates cannot be proved on which sexual
intercourse took place, according to Calcutta High Court it is sufficient to specify the period within
which offence was alleged to have been committed and omission of precise date would not affect
the allegationof the husband.155
1. Aziz Khan v. Ekram Hussain, A.l.R. 1937 Pat. 219.
10.Rewa, 1941 N.L.T. 686.

Sentence.—The sentence prescribed for the offence by the law in force when it was
committed cannot be ignored. It must be taken into account in determining the punishment.156
Distinction between Adultery and Rape.—Some main points of distinction between adultery
and rape are as follows :—
147Ibid.
148A.l.R. 1947 Rang. 261.
149Stroud's Judicial Dictionary, Vol. I, p. 580.
150Munir, (1925) 24 A.L.J.R. 155.
151Pathi Gollari v. Ghanni Mondall A.l.R. 1963 Orissa 60; (1963) I Cr. L.J. 312.
152Ibid.
153Moti R.P. 175.
154In re N.S. Navle, A.l.R. 1928 Bom. 530.
155Bhola Nath Miner, (1924) 51 Cal. 488.
156K.K. Maran v. K.D. Naran, A.I.R. 1951 Kutch 17.
S. 497 ] OF OFFENCES RELATING TO MARRIAGE 624
(1) Adultery is an offence under Section 497 of the IP. Code. It is an

offence relating to marriage.
Rape is an offence defined under Sections 375 and 376 of the Code. It is contained in
Chapter dealing with Offences Affecting the Human Body and is an offence relating to the person
of the woman who is victim of rape.
(2) In the case of adultery the consent of the woman is immaterial because
the woman being married it is the husband who is actually the aggrieved party.
In fact in adultery woman is always a willing and consenting party to sexual
intercourse.
But the offence of rape is committed against the will and without consent of the woman or it
may be committed even with the consent if the girl is under sixteen years of age.
(3) Adultery is an offence against the husband. Rape is an offence against the woman herself.
(4) Adultery may be committed only when the women is married and not when she is not
married. No offence of adultery is constituted where the husband consents to his wife having illicit
relationship.
Rape may be committed on any woman whether married or unmarried. Where the woman is
manned and sexual intercourse is committed without her consent the offence is both rape as well as
adultery.
498. Enticing or taking away or detaining with criminal intent a married woman.—Whoever takes or
entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man,
from that man, or from any person having the care of her on behalf of that man, with intent that she may have
illicit intercourse with any' person, or conceals, or detains with that intent any such woman, shall be punished
with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
COMMENT
This section punishes a person who entices or takes away or detains a married woman with a
criminal intent. The gist of the offence under this section consists in the deprivation of the husband
of his custody over his wife with the object of having illicit relation with her. 157 Thus this section
provides protection to the husband who alone can institute prosecution for an offence of this nature.
Only a married woman is the subject-matter of this offence.
This section resembles with Sections 361 and 366 but it comes into operation when these
two sections fail to apply.
Ingredients.—The following are the ingredients of this section :—
1. The woman in question is the wife of another man;
2. She was under the care of her husband, or of some one on his behalf;
157Alamgir, A.I.R. 1959 Pat. 334.

S. 498
OF OFFENCES RELATING TO MARRIAGE 625
S. 49E
in force 3. The accused enticed or took away from her husband or that other person or
unt in detained her;
4. The accused knew or had reason to believe that she was the wife of another
inction person;
5. The accused detained or enticed or concealed such a woman with intent that she
It is an might have illicit intercourse with some person.
1. Takes, entices or detains any woman.—Taking does not mean taking
It is and by force. It implies use of physical, or moral influence by the accused to induce
is an the wife to leave her husband. There must be some influence operating on the
woman or co-operating with her inclination at the time the final step is taken
because party, by the woman or causing separation from her husband. 158 Taking a woman with
to sexual the consent of her husband or of the person who has the care of her is not
taking under this section.159 The fact that the woman accompanied the accused of
consent is her own free will does not diminish the criminality of the act.160
under A person is said to have enticed a woman when he persuaded her to leave her husband's
house. Thus the act of enticement involves some active persuasion or use of moral force by accused
against so that woman may leave her husband or the person having the charge of her care, of her own. For
an offence under this section taking or enticing away of wife is not necessary. If the accused has
and not concealed or detained her with intent that she may have illicit intercourse with another person, he
husband would be guilty under this section.161
With a woman willingly accompanies the accused, this fact will not diminish the criminality
I nnmarried. of the accused if other ingredients of the offence are proved.162
ithout her 2. From any person having the care of her on behalf of that man.—In Ramnarayan Kapur'sh
case Bombay High Court observed that where the brother of a married woman, who had eloped with
married ■ has the accused, lodged a complaint against the accused for an offence under this section, no action was
reason having taken by the Court because it was not shown that he had the husband's authority to take care of her.
the with airy^ Therefore, taking or enticing must be from the lawful authority of the husband or of any person
lied with with
having the care of her.
fine,
3. The woman must be married.—The woman enticed away must be the wife of another man.
The enticement of a woman whose marriage is void is not indictable under this section. A husband
who discarded his wife for many year and recognised her as free person to go where she liked has
no ground for complaining under this section even if she is enticed away by another man from her
father's house where she lives. Taking away such a woman cannot be an offence under this
section.163
4. Accused must know that the woman was married.—For an offence under this section it is
not enough that the woman was married, it is also necessary that the accused knew that the woman
was married. The expression "such woman" used in this section, does not mean such a woman as
ames into
has been so enticed away but means such a woman whom the accused knows or has
158Mahadev Rama, (1942) 45 Bom. L.R. 295.

159Abdul Rahman, (1935) 39 C.W.N. 1055.
160Emp. v. Jan Mohamed, 4 Bom. L.R. 435.
161(1962) 2 Cr. L.J. 159.
162Narayan Chandra Das v. Kainalakshya Das and another, 1984 Cr. L.J. (N.O.C.) 101 (Cal.).
163Pahalwan, 16 Cr. L.J. 216.
S. 498
OF OFFENCES RELATING TO MARRIAGE 626
one on his
6. (1936) 39 Bom. L.R. 61.

reason to believe to be the wife of any other man.164

5. Intention.—In order to satisfy a charge under this section it is necessary that the accused
could be said to have detained the woman and to have detained her with intent that she may have
illicit intercourse with him. The persuasion allurement or blandishment necessary to make out such
detention must be with intent to have such illicit intercourse. 165 In a case Allahabad High Court has
taken the view that sexual intercourse between the woman and any person or other than the person
to whom she had been given in marriage, during the life time of her husband would be illicit within
the meaning of this section.166 Under this section conviction would not be bad merely because the
husband connived at the taking away or concealing of the wife.167
6. Wife cannot be punished as abettor.—In a case of adultery wife is not punished as an
abettor. Therefore, it would be inconsistent to punish her as an abettor of the minor offence
mentioned in this section.168
164Jagannath, A.l.R. 1937 All. 353 (D.B.).

165Jasimadd'm v. Ichohak, 1 C.W.N. 498.
166Naugan, A.l.R. 1915 All. 13.
167Ganesh Ram v. Ram Chand, A.l.R. 1920 P 522.
168Phalla v. Jiwan Singh, (1871) P.R. No. 6. of 1871.
CHAPTER XX-A
OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND
498-A. Husband or relatives of husband of a woman subjecting her to cruelty.—Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished
with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purposes of this section, "cruelty" means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman ; or
(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such demand.
COMMENT
This section was enacted to meet the cases of dowry deaths. It was introduced in the
year 1983. It's objective is to protect a woman who is being harassed by her husband or
relatives of husband. The act of harassment would amount to cruelty for the purpose of this
section. In Inder Raj Malik and others v. Mrs. Sumita Malik169 it was contended that this
section is ultrajsdres Art. 44 and Art. 20 (2) of the Constitution. There is the Dowry
Prohibition Act which also deals with similar type of cases, therefore, both statutes together
create a situation commonly known as double jeopardy. But Delhi High Court negatived this
contention and held that this section does not create situation for double jeopardy. Section
498-A is distinguishable from section 4 of the Dowry Prohibition Act because in the latter
mere demand of dowry is punishable and existence of element of cruelty is not necessary,
whereas section 498-A deals with aggravated form of the offence. It punishes such demands of
property or valuable security from the wife or her relatives as are coupled with cruelty to her.
Hence a person can be prosecuted in respect of both the offences punishable under section 4 of
the Dowry Prohibition Act and this section. It is just a case similar to section 5(2) of the
Prevention of Corruption Act and section 409 of the Indian Penal Code.
It was held in B.S. Joshi v. State of Haryana,170 that the object of section 498-A of
Indian Penal Code was to prevent torture to a woman by her husband or his relatives in
connection with demand of dowry. This section was added with a view to punishing a husband
and his relatives who harass or torture the wife to coerce her or her relatives to satisfy
unlawful demands of dowry. The hypertechnical view would be counter productive and would
act against interests of women and against the object for which this provision was added. In
the present case proceedings were initiated by wife under section 498-A against her husband
and his relatives and subsequently she settled her disputes with husband and agreed for
mutual divorce. Later she moved an application for quashing proceedings initiated by her
against husband and his relatives.
The Supreme Court held that refusal by High Court to exercise the inherent powers under
section 482 Cr.P.C. to quash the proceedings to meet the ends of justice would prevent women from
settling earlier. That is not the object of section 498-A of the Indian Penal Code.
It was further held that the High Court in exercise of its inherent powers can quash criminal
proceedings or FIR or complaint and section 320 of the Cr.P.C. does not limit or affect the powers
under section 482 of the Cr.P.C.
In Inder Raj Malik v. Sumita Malik? it was held that where it is alleged by the complainant
that she was being continuously threatened that her son would be taken away unless she met the
demands of the accused by way of compelling her parents to sell their property, such threats come,
within the purview of section 498-A. The word 'cruelty' is defined in the explanation which inter
alia says that harassment of a woman with a view to coerce her or any related persons to meet any
unlawful demand for any property or any valuable security is cruelty.
This section gives wide discretion to the courts in the matters of interpretation of the words
occurring in the laws and also in matters of awarding punishment. This provision is not ultra vires.
It does not confer arbitrary powers on the courts.
Meaning of Cruelty.—It was held in Kaliyaperumal v. State of Tamil Nadu? that cruelty is a
common essential in offences under both the sections 304-B and 498-A of the Indian Penal Code.
1691986 Cri. L.J. 1510 (Del.).

1702003 Cri. L.J. 2028 (S.C).
The two sections are not mutually inclusive but both are distinct offences and a person acquitted
under section 304-B for the offence of dowry death can be convicted for an offence under section
498-A of Indian Penal Code. The meaning of cruelty is given in explanation to section 498-A.
Section 304-B does not contain its meaning but the meaning ol cruelty or harassment as given in
section 498-A applies in section 304-B as well, Under section 498-A of Indian Penal Code cruelty
by itself amounts to an offence whereas under section 304-B the offence is that of dowry death and
the death must have occurred within seven years of marriage. But no such period ii mentioned in
section 498-A.
Cases.—In Virender Bhatti v. State? it was held that where the suicide hat taken place within
seven years of the marriage and the convincing evidence ha( come on record that the deceased wife
was subjected to cruelty at the hands o the accused, husband, a presumption that it was the accused
who abetted th commission of suicide by his wife could be drawn and thus, the conviction fo
offences under sections 306 and 498-A was proper.
In P. Bikshapathi v. State of A.P.? one Rajyalakshmi aged about 19 year committed suicide as
she was ill treated and harassed continuously by he husband and his parents for not getting the T.V.
set and gold ring from he parents. Her husband was addicted to alcohol and sometimes fell
unconsciou after consuming alcohol. He used to come late and on being objected used t beat his
wife. Thus she was compelled to commit suicide by setting herself o fire by pouring kerosene oil on
her body. It was held that taking drink an coming late home much against the will of wife may not
per se, amount t cruelty but the acts coupled with beating and demanding dowry and harassmei to
bring money clearly amount to cruelty under section 498-A of the Code. Further ill treatment meted
to the deceased by her husband and in-laws prior to the date of her death made her to commit
suicide. The accused were therefore liable under section 306, IP. Code also. It was held in Madhuri
1. 1986 Cri. L.J. 1510 (Del.).
2. 2003 Cri. L.J. 4321 (S.C).
3. 1989 Cri. L.J. (N.O.C.) 196 (Delhi).
4. 1989 Cri. L.J. 1186 (A.P.).
Mukund Chitnis v. Mukund Martand Chitnis,1 that where malicious and vexatious litigations are
instituted by the husband against wife out of a sense of vindictiveness and wife is humiliated and
tortured through execution of search warrants and seizure of personal property it was held that
section 498-A includes even such class of cruelty committed through litigative process.
It was further held that although jail sentence is not compulsory but the sentence even though
only imposition of fine must be in consonance with the gravity of offence.
In Vadde Rama Rao v. State of A.P.,2 the accused V. Rama Rao had gone with his wife to the
house of his father-in-law for demanding additional dowry. Father-in-law showed his inability to
meet the demand. Thereafter husband was coming back and his wife voluntarily followed him. At
the bus stand the accused went out for urinal and after return he found the deceased missing. He
went even to his father-in-law's house to inquire whether the deceased wife came back since she
was missing. He made search with father-in-law and his relatives. Eventually her dead body was
found in a well.
It was held that from the facts and the conduct of the accused an offence under section 304-B
is not made out because the conduct of the accused excluded his presence when the deceased went
near the well. The prosecution has not succeeded in excluding the possibility of death by accident
due to slip into the KONERU (well). Since there was ample proof of cruelty to wife for additional
dowry, accused was held guilty under clause (b) of section 498-A, IP. Code.
It was held in Sankar Prasad Shaw v. State? that mere demand of dowry may not be an
offence under Section 4 of the Dowry Prohibition Act, 1961 but it is an offence under Section 498-
A of the Indian Penal Code. For an offence under the Dowry Prohibition Act dowry should either be
given or agreed to be given but Section 498-A covers even mere demand for dowry as it is covered
by sub-clause (b) of explanation to that section.
It was held in Ramesh Chand v. State of U.P.,4 that a complaint under Section 498-A could
succeed only if it can be proved that there was an "unlawful demand" by the husband of some
money. Mere demand without settlement of dowry at the time Of marriage is no offence. Mere
refusal by the father-in-law to meet the demand does not make the demand unlawful unless the said
demand can come within the definition of dowry.
In Balram Prasad Agrawal v. State of Bihar? respondent No. 2 Paran Prasad Agrawal.
Accused No. 1 was married with the deceased Kiran Devi in 1977. But even about five to six years
of marriage no child was born. Therefore accused No. 3, the elder brother of deceased's husband and
accused No. 2 her mother-in-law wanted to marry Respondent No. 2 with some other girl. However,
father of the deceased the present appellant got his daughter treated by some Specialist Doctor and
she gave birth to two sons. But harassment and cruelty
1. 1992 Cri. L.J. Ill (Bom.).
2. 1990 Cri. L.J. 1666 (A.P.).
3. 1991 Cri. L.J. 639 (Cal.).
4. 1992 Cri. L.J. 1444 (All).
5. 1997 Cri. L.J. 1640 (S.C).
meted out to Kiran Devi for demand of dowry continued and the demand being not fulfilled the
accused started beating Kiran Devi. Being tired of the torture she tried to commit suicide by
jumping in a well but was saved by neighbours. In this respect Kiran Devi had herself made a report
to the police. Thereafter she started living with her father but in consequence of a compromise at the
instance of her father she came back and started living with her-in-laws. In the night of 30th
October, 1988 Kiran Devi fell in a well situated in the compound of the house in which they were
living and at about 10.00 a.m. on 31 October her husband informed the appellant that his daughter
had died after falling in a well. He came and saw the dead body near the well. On 12th November,
the appellant visited the house of his son-in-law to meet his grandson. On that day he was informed
by the neighbours that on the previous night of the date of occurrence there was quarrel in the house
and they had heard Kiran Devi weeping and crying and that she was being assaulted by her in-laws.
An F.I.R. was lodged on this information on 12th November, 1988 about murder. The accused
persons were charged and tried under Sections 498-A, 302 and 120-B of the I.R Code. The
prosecution failed to make out a case under Section 302/34 I.R Code but a charge under Section
498-A was proved. In view of the facts stated above it was held by the Supreme Court that it can be
presumed under Section 114 Evidence Act that the cruel treatment meted out to the deceased by the
accused earlier had continued unabated till the very last when she was forced to commit suicide on
that fateful night. Such a presumption of continuance of cruel treatment which is established on
record points an accusing finger to the accused. Therefore the husband and his elder brother were
convicted under Section 498-A of the I.R Code.
In Satpal v. State of Haryana,171 the deceased Alka was the wife of the appellant. Alka was
admitted in the Medical College Hospital, Rohtak and died in the said hospital on 7th January, 1987.
From the analysis of the contents found in the vicera of the deceased it transpired that alluminium
phosphate usually used in pesticides was the cause of death. The brother of the deceased was the
only witness who deposed that Alka was subjected to humiliation and mental torture on account of
demand for dowry. The co-accused Lajwanti, the mother-in-law of the deceased died before the trial
commenced. The trial court noted that there is no direct evidence for a clear demand of the dowry
but from the facts stated in the deposition that in connection with Jamni, the gifts given by the
parents of the deceased were not accepted because they did not contain gold and also on other
occasions the deceased was treated with cruelty and was humiliated. However the learned trial
Judge came to the finding that even in the absence of direct evidence in connection with demand of
dowry, the evidence of the brother of the deceased should be accepted that there was demand for
dowry, for which the deceased has been dealt with cruelty by the members of the family of husband.
The trial Judge therefore convicted the accused under sections 498-A, 306 and 304-B, Indian Penal
Code. It was submitted that alluminium phosphate is not expected to be consumed by the deceased
inadvertently. It was submitted that under the circumstances it can reasonably be presumed that
being humiliated and mentally tortured, the deceased has consumed the said poison to end her life.
Accordingly the presumption under section 113-B, Evidence Act is attracted in the facts of the case
and the conviction under section 304-B, and also under
1711999 Cri. L.J. 596 (S.C.)

631 [ S. 498-A
OF CRUELTY BY HUSBAND OR RELATIVES OF
HUSBAND
section 306, Indian Penal Code cannot be held to be illegal. But it was held by the Supreme Court
that there is no convincing evidence on the basis of which any finding can be made that the
deceased had committed suicide by consuming poison. Mere possibility of such consumption of
poison by her is not sufficient for conviction under section 306, Indian Penal Code. The possibility
by other means must be ruled out. So far as demand for dowry is concerned there is hardly any
convincing evidence excepting the lone statement of brother of the deceased, for which conviction
under section 304-B can be made. But so far as the conviction of the appellant under section 498-A,
Indian Penal Code is concerned, it appears that there is direct and convincing evidence that the
deceased had been humiliated and treated with cruelty on some occasions by the appellant and the
co-accused. Therefore the conviction under section 498-A, Indian Penal Code is justified.
In Satish Kumar Batra and others v. State of Haryana,172 husband along with his 4 relatives
was charged for offence under Section 498-A IP. Code. Thrust of F.LR. was against uncle and aunt
of victim's husband. Inconsistencies and improvements in evidence of victim and her relatives were
found. Improvements primarily relating to other relations of husband than his uncle and aunt. It was
held that acquittal of only uncle and aunt of husband was improper. All relatives are liable to be
acquitted. As far as the husband is concerned evidence against him is clear and cogent and as such
his conviction was held to be proper.
. It was pointed out that cruelty to wife under Section 498-A was different than offence of
dowry death under Section 304-B. However, cruelty is common essential to both offences. It was
also pointed out that cruelty to wife is distinct from abetment of suicide and the difference is of
intention.
In Arun Vyas v. Anita Vyas,173 it was held that the offence of cruelty defined under Section
498-A, Indian Penal Code read with the explanation appended to it, is a continuing offence and thus
on each occasion on which the wife is subjected to cruelty she would have new starting point of
limitation.
In Pawan Kumar v. State of Haryana,174 death of deceased was caused by burn injuries.
There was evidence that the deceased was tortured for dowry demand of cash as well as Maruti Van
by husband of the deceased from his brother-in-law which was booked by the latter. Dying
declaration put up a story that kerosene in stove got finished and while filling kerosene clothes of
deceased caught fire. It was held by the court that the dying declaration was falsified by the fact that
absence of kerosene would put off the ignition of stove. Therefore the story of accidental death is
unbelievable. In view of preponderance of evidence of torture and dowry demand a presumption
under section 113A of the Evidence Act arises. Hence the conviction of husband and his parents
under sections 306 and 498-A, Penal Code was proper.
In Kishangiri Mangalgiri Goswami v. State of Gujarat? accused was alleged to have tortured
his wife for dowry leading to her suicide. He was also alleged to have written letters to his in-laws
demanding money. It was held that mere proof of cruelty was not sufficient to convict accused
under Section 306 I.P.C. However, accused was held liable to be convicted under Section 498-A IP.
Code and Section 3 of Dowry Prohibition Act, 1961 in view of letters written by him to in-laws.
4. (2009) 2 Cri. L.J. 1720 (S.C).

In Milind Bhagwan Rao Godse v. State of Maharashtra and Another,175 the deceased wife
allegedly committed suicide because of cruelty by appellant husband. The accused pleaded in his
defence that deceased, a highly educated woman, was frustrated in life as she could not get all
luxuries of life. Evidence of her father, sister and neighbour, however, established case of extreme
mental cruelty. Letter written by deceased to her parents showed sadistic pleasure derived by
appellant in perpetuating cruelty practiced with his wife. Evidence on record also indicate that
extreme mental cruelty and harassment compelled deceased to put an end to her life. Therefore,
conviction of appellant was held to be proper.
In Girdhar Shankar Tawade v. State of Maharashtra,176 the accused was married and had a
son and two daughters from his first wife who was dead. After her death he married to one Shobha
in February 1984 who had no parents and had a brother Chandrakant Katkar and a cousin-brother
Vishnu Katkar. Shobha was treated well by her husband for about six months after marriage but the
172(2009) 2 Cri. L.J. 2447 (S.C).

1731999 Cri. L.J. 3479 (SC.).
1742001 Cri. L.J. 1679 (S.C).
175(2009) 2 Cri. L.J. 1736 (S.C).
1762002 Cri. L.J. 2814 (S.C).
S. 498-A ] INDIAN PENAL CODE, 1860 632
conduct thereafter of the accused towards Shobha became reprehensible and went on to the extent
of assault on flimsy grounds. On occasions when Shobha visited to her brothers house she narrated
sordid tales of her plight to her cousin-brother Vishnu, the complainant who was residing opposite
to the house of her real brother Chandrakant. She used to write to her both brothers about ill-
treatment. On one occasion upon coming to know of a bleeding injury having been inflicted, the
complainant Vishnu with one Aba Rao Ingle had visited the residence of the accused so that similar
treatment be not meted out to Shobha in future. It is stated that on 12-8-1988 at about 6 p.m. One
Kodiba Dudhe came to the complainant Vishnu and informed that Shobha got burnt and was
admitted in Ghati hospital and in morning she died. He also informed that Shobha's husband also
performed funeral on the dead body of Shobha. On this information Vishnu, cousin-brother of
Shobha lodged a complaint on 12-8-1988 wherein he stated that Girdhar had not informed to the
complainant and his brother about burn injuries to Shobha and of her admission in the hospital and
without waiting for the near relations, her funeral was also conducted. It also appears from the
complaint that Shobha had committed suicide due to ill-treatment of her husband. On the basis of
this complaint investigation started on 13-8-1988 and a case under sections 306 and 498-A, Indian
Penal Code, was registered against the accused. The investigating officer visited the place of
occurrence and stove and clothes of the victim were attached. The dead body was sent to the
hospital where post-mortem was effected. After recording statement of two brothers of deceased
three letters were attached under Panchnama. The accused was arrested on 11-1-1989 and after
completion of investigation charge-sheet was submitted against the accused for offences under
sections 306 and 498-A, Indian Penal Code. The evidence available on record is the oral statement
of the two brothers but greater reliance was placed on the letters written by deceased in 1986, 1987
and 1988. There was one visit to place of deceased by cousin-brother. PW-1 states that visit was in
July 1986; Vishnu states it in May 1988, but both confirm that letters were received 2-3 months
before death of deceased.
It was held that there were two inconsistent versions of brother and cousin of deceased, as such no
credence can be attributed thereon. The documentary evidence namely, three letters written by
deceased to her cousin and brother fall short of requirement of section 498-A. Even on assumption
that there is no contradiction in the oral testimony available on record, the cousin goes to the
unfortunate girls-in-laws place and requests the husband to treat her well. This by itself would not
bring home the charge under section 498-A. Demand of dowry has not seen the light of the day.
There was a specific finding by trial court and affirmed by High Court that death was an accidental
death and not suicide. Thus if suicide is left out, then in that event question of fulfilling ingredients
of section 498-A would not arise because for that wilful act or conduct ought to be the proximate
cause in order to bring home the charge under section 498-A. Happening of an event sometime back
cannot be a fact to be taken note of in the matter of a charge under section 498-A. The legislative
intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be
a series of acts in order to be a harassment within the meaning of explanation (b) to section 498-A,
the letter by itself though may depict a reprehensible conduct, would not, however bring home the
charge of section 498-A against the accused. It was further held that acquittal of a charge under
section 306 as noticed though not by itself a ground for acquittal under section 498-A, but some
cogent evidence is required to bring home the charge under section 498-A as well, without which
the charge cannot be said to be maintained. However, there was no such evidence available on
record. Therefore the accused would be required to be acquitted of the charge under section 498-A.'
In K. Prema S. Rao v. Yadla Srinivas Rao,7 accused husband of deceased forced deceased to
part with her land received by her in marriage as stridhan. Accused also concealed her postal mail
which she later found and delivered the same to her father. One day accused and his parents drove
her out of house with a warning to restore the letters which were given by deceased to her father.
Refusal of deceased to transfer the land in the name of her husband led to cruel treatment and
harassment of deceased by accused husband. When she was driven out of her in-laws house she
consumed poisonous insecticide which resulted in her death. Accused husband and his parents were
charged and tried for offence under section 304-B which was not proved as there was no evidence
of the deceased being subjected to cruelty and harassment soon before her death in connection with
demand for dowry. The cruel treatment was not in connection with demand for dowry but the
deceased committed suicide only because of cruelty and harassment meted out to her. Therefore, it
was held that on the same evidence they could not be convicted under section 304-B but could be
convicted under section 498-A of Indian Penal Code for offence of cruelty. The accused can also be
convicted for abetment of suicide under section 306 of Indian Penal Code with the aid of section
221 of Criminal Procedure Code.
The fact that specific charge under section 306 of Indian Penal Code was not framed against
accused husband would not preclude court from convicting accused for offence found otherwise
proved.
It was further held that the parents of accused were not liable for the offence because
allegation against in-laws of deceased about their participation with the accused husband in driving
1. Girdhar Shankar Tawade v. State of Maharashtra, 2002 Cri. L.J. 2814 (S.C).
2. 2003 Cri. L.J. 434 (S.C).
633 [ S. 498-A
OF CRUELTY BY HUSBAND OR RELATIVES OF
HUSBAND
out deceased from their house was for thefirst time made by father of deceased only in the
deposition in Court. No other evidence against in-laws except oral testimony of father of deceased
was available. Hence their acquittal was held proper.
It was held in Hansraj v. State of Haryana,177 that the mere fact that a woman committed
suicide within seven years of her marriage and that she had been subjected to cruelty by her
husband, does not automatically give rise to the presumption that the suicide had been abetted by
her husband. The Court is required to look into all the other circumstances of the case. One of the
circumstances which has to be considered by the Court is whether the alleged cruelty was of such
nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life,
limb or health of the woman.
It was further observed that when in a criminal trial against husband for abetment of suicide
by his wife, the prosecution improves its case from stage to stage in as much as the allegations that
the accused did not like to keep the deceased wife with him because she was not good looking, or
that he was addicted to liquor or that the deceased had reported these matters to her parents and
othefs, or that the accused intended to re-marry and had told his wife about it, or that the deceased
had once come to her father's house in an injured condition, or even the allegations regarding
beatings, did not find place in the statements recorded by the police in the course of investigation
and these allegations were made at the trial for the first time and all that was alleged in the F.I.R. or
even at the stage of investigation was that there were frequent quarrels between the husband and
wife, sometimes resulting in physical assault, on account of the husband being addict to the
consumption of 'bhang' and the other allegation that the accused was aggrieved of the fact that his
sister was not being properly treated by her husband who was brother of deceased also appeared to
be untrue, it was held that the presumption under section 113-A of the Evidence Act could not be
invoked to find the accused guilty of the offence under section 306 of I.RC.
It was further held that having regard to the facts of the case, though the prosecution failed to
establish the offence under section 306 I.P.C, the evidence on record justified the conviction of the
accused under section 498-A of I.P.C.
In Mohd Hoshan v. State of A.P.,178 the deceased Razwana Parveen was married to appellant
No. 1 on 26-4-1987. On 9-3-1988 at about 9.30 p.m. the deceased sustained burn injuries in the
house of the appellants where she was living. She was shifted to Osmania General Hospital where
she died on 12-3-1988 due to burn injuries. It was alleged that the deceased committed suicide
because of cruel treatment of the appellants after her marriage and that the appellant was demanding
dowry from her. During the period of about 11 months after her marriage deceased had, for most of
time, been with her parents excepting about two months in different spells. It was alleged that due to
continuous taunting or teasing by accused husband and mother-in-law on one ground or other the
deceased committed suicide by burning herself. Accused did not try to save her despite being
present in the house.
There is no direct evidence to establish the case of the prosecution. The prosecution mainly
relied on the evidence of PWs 3 to 7 who were brother, father and mother of deceased and one more
PW-7, the dying declaration recordedby the Magistrate and report made to head constable. The trial
judge did not accept the prosecution case that scolding and taunting of the deceased by the
appellants for not preparing proper food or that she was not good looking was not such a cruelty so
as to push her to commit suicide. The trial court acquitted the accused persons but in appeal the
High Court reversed the acquittal order.
It was held by the Supreme Court that reversal of order of acquittal by High Court by taking
different view was not improper and accused are liable to be convicted for offences under sections
306 and 498-A of the Indian Penal Code.
It was further observed that whether one spouse has been guilty of cruelty to the other is
essentially a question of fact. The impact of complaints, accusations or taunts on a person
amounting to cruelty depends on various factors like the sensitivity of the individual victim
concerned, the social background, the environment, education etc. Further mental cruelty varies
from person to person depending on the intensity of sensitivity and the degree of courage or
endurance to withstand such cruelty.
In Surender v. State of Haryana,179 the deceased Pushpa was married to appellant Surender in
1994. At the time of marriage sufficient dowry was given but the appellants were not satisfied with
the dowry given. They started harassing her: In order to make them happy father of Pushpa used to
give some money to his daughter whenever she visited him but the demand of appellants always
1772004 Cri. L.J. 1759 (S.C).

1782002 Cri. L.J. 4124 (S.C).
1792007 Cri. L.J. 779 9S.C).
S. 498-A ] INDIAN PENAL CODE, 1860 634
remained on increasing side. They used to beat her. Smt. Pushpa used to tell her father about the
atrocities committed on her whenever she visited hirn." After about two and half years Pushpa gave
birth to a daughter and at that time also Dilbag Singh, father of Pushpa had given sufficient gifts but
the appellants were not satisfied. About three months back the appellant Surender went to PW-4, -
Sombir, maternal uncle of Pushpa with a demand of Rs. 80,000/- for purchase of a tractor but
Sombir refused to oblige him and informed about it to Dilbag Singh, who also told him not to oblige
Surender as he and his father would spend the amount on liquor. Thereafter appellant and his
relatives became more harsh towards Pushpa and started beating her which she told to her father.
She remained in her parental house for about three months and was then taken back by Surender
only 10 days prior to the occurrence after giving assurance that she would be treated nicely.
On 23-4-2002 PW-2 Prema, mother of Pushpa received a telephonic message at about 6-7
p.m. through PW-3, Krishan that Pushpa had ended her life by committing suicide by hanging.
Upon receipt of this information PW-10, Dilbag Singh along with his wife PW-2 Prema, brother in
law, Sombir PW-4 and others reached in the village of Surender and found the dead body of Pushpa
lying in the room at the first floor of their house. Broken pieces of her bangles and her chappals
were also lying there.
Pushpa had committed suicide by hanging as she had been harassed by appellant and his
relatives due to demands of dowry. Surender was tried for offences under Section 498-A and 306/34
IP. Code. There was enough evidence of PW-2, PW-10 and PW-4 that Pushpa had been harassed
for dowry so much so that appellant had gone to Sombir, maternal uncle of Pushpa, demanding Rs.
80,000/- but he had refused to oblige. It has come in evidence that Surender gave beating to Pushpa
to such an extent that she became unable to walk. The deceased was pregnant at the time of
committing suicide. The Trial Courtconvicted all the three accused under Section 306/34 and 498-
A/34, but in appeal the High Court upheld only the conviction of appellant and his parents were
acquitted.
It was pleaded on behalf of the appellant that there was nothing to show any intention to abet
deceased to commit suicide. The Supreme Court held that it is not necessary that express words
should be used in order to instigate. The offence of abetment depends upon the intention of the
person who abets and not upon the act which is done by the person who is abetted. So also the
defence plea that deceased committed suicide due to mental tension owing to pregnancy is also not
tenable in view of the finding of the High Court that a young pregnant woman having a child in
womb would not ordinarily commit suicide unless she was compelled to do so. Hence conviction of
accused was held to be proper under Section 306/34 and also Section 498-A/34 as there was enough
evidence of harassment for demand of dowry.180
Cruelty for dowry demand and murder.—In Balbir Singh v. State of Punjab,181 the
deceased Amarjeet Kaur was married to appellant. She had been complaining of ill-treatment at the
hands of her husband and in-laws. Sometime a Panchayat was held to settle the dispute but ill-
treatment continued while her husband had come home on two months leave. She in view of a
settlement came to her matrimonial home on 12-10-1995. She received 90% burn injuries. In her
dying declaration before the doctor the victim had stated her husband had put kerosene oil upon her
and upon igniting locked doors of both the rooms from outside. The victim was rescued by
neighbours. Victim in her second dying declaration before the investigating officer not only named
her husband but also her mother-in-law. Witnesses in evidence stated how she was maltreated at the
hands of accused persons on account of non-fulfilment of their demand of dowry. The Supreme
Court held that in view of the fact that victim was rescued by neighbour case of suicide must be
ruled out and the conviction of accused under Section 302 IP. Code was held proper. However, in
view of inconsistencies between two dying declarations benefit of doubt must be given to mother-
in-law as for the offence under Section 302 is concerned. However, conviction of both the accused
under Section 498-A was held proper. The mother-in-law was already in custody for four years
therefore, she was ordered to be released forthwith. It was also made clear that only because dying
declaration was not recorded by a Magistrate it by itself may not be a ground to disbelieve entire
prosecution case.
Constitutionality of Section 498-A.—It was held in Satish Kumar Batra and others v. State
of Haryana,182 that merely because there is possibility of misuse of the offence of cruelty to wife
under Section 498-A of Indian Penal Code is not a ground to hold this provision as unconstitutional.
180Surender v. State of Hatyana, 2007 Cri. L.J. 779 (S.C).

181Surender v. State of Hatyana, 2007 Cri. L.J. 779 (S.C).
182(2009) 2 Cri. L.J. 2447 (S.C).
2. 2006 Cri. L.J. 4646 (S.C).

CHAPTER XXI OF
DEFAMATION
499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any imputation concerning any person intending to harm, or
knowing or having reason to believe that such imputation will harm, the reputation of such person, is said,
except in the cases hereinafter excepted, to defame that person.
Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings
of his family or other near relatives.
Explanation 2.—If may amount to defamation to make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount
to defamation.
Explanation 4.—No imputation is said to harm a person's reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person,
or lowers the character of that person in respect of his caste or of his calling or lowers the credit of that
person, or causes it to be believed that the body of that person is in a loathsome state, or in a state
generally considered as disgraceful.
Illustrations
(a) A says—"Z is an honest man, he never stole B's watch", intending to cause it to be believed that
Z did steal B's watch. This is defamation, unless it falls within one of the exceptions.
(b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's
watch. This is defamation, unless if falls within one of the exceptions.
(c) A draws a picture of Z running away with B's watch, intending it to be believed that Z stole B's
watch. This is defamation, unless it falls within one of the exceptions.
First Exception.—Imputation of truth which public good requires to be made or published.—It is not
defamation to impute anything which is true concerning any person, if it be for the public good that the
imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.—Public conduct of public servants.—It is not defamation to expressTn good faith
any opinion whatever respecting the conduct of a public servant in the discharge of his public functions,
or respecting his character, so far his character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching any public question.—It is not defamation to
express in good faith any opinion whatever respecting the conduct of any person touching any public
question, and respecting his character, so far as his character appears in that conduct, and no further.
Illustration
It is not defamation in A to express in good faith any opinion whatever respecting Z's conduct in
petitioning 'Government on a public question, in signing a requisition for a meeting on a public question,
in presiding or attending at such meeting, in forming or joining any society which invites the public
support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of
the duties of which the public is interested.
Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish
a substantially true report of the proceedings of a Court of Justice, or of the result of any such
proceedings.
Explanation.—A justice of the Peace or other officer holding an enquiry in open Court preliminary
to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned. —It
is not, defamation to express in good faith any opinion whatever respecting the merits of any case, civil or
criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party,
witness or agent, in any such case, 01 respecting the character of such person, as far as his character appears in
that conduct, and no further.
Illustrations
(a) A says—"I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest." A is
within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z's
character as it appears in Z's conduct as a witness, and no further.
(b) But if A says—"I do not believe what Z asserted at that trial because I know him to be a man without
veracity." A is not within this exception, inasmuch as the opinion which he expresses of Z's character, is an
opinion not founded on Z's conduct as a witness.
Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith opinion
respecting the merits of any performance which its author has submitted to the judgment of the public or
respecting the character of the author so far as his character appears in such performance, and no further.
Explatwtion.—A performance may be submitted to the judgment of the public expressly or by acts on the
part of the author which imply such submission to the judgment of the public.
Illustrations
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech, in public, submits that speech to the judgment of the public.
(c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the
public.
(d) A says of a book published by Z—"Z's book is foolish; Z must be a weak man. Z's book is indecent ; Z
must be a man of impure mind." A is within the exception, if he says in good faith, inasmuch as the opinion
which he expresses of Z respects Z's character only so far as it appears in Z's book, and no further.
(c) But if A says—"I am not surprised that Z's book is foolish and indecent, for he is a weak man and a
libertine". A is not within the exception, inasmuch as the opinion which he expresses of Z's character is an
opinion not founded on Z's book.
Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is
not defamation in a person having over another any authority, either conferred by law or arising out of a lawful
contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which
such lawful authority relates.
Illustration
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court ; a head of the
department censuring in good faith those who are under his orders ; a parent censuring in good faith of a child in
the presence of other children ; a school-master, whose authority is derived from a parent, censuring in good
faith a pupil in the presence of other pupils ; a master censuring a servant in good faith for remissness in service ;
a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier—are
within this exception.
Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to
prefer in good faith an accusation against any person to any of those who have lawful authority over that person
with respect to the subject-matter of accusation.
Illustration
If A in good faith accuses Z before a Magistrate ; if A in good faith complains of the conduct of Z, a
servant, to Z's master ; if A in good faith complains of the conduct of Z, a child, to Z's father—A is within this
exception.
Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests.—It
is not defamation to make an imputation on the character of another provided that the imputation be made in
good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
Illustrations
(a) A, shopkeeper, says to B, who manages his business—"Sell nothing to Z unless he * pays you ready
money, for I have no opinion of his honesty." A is within the exception, if he has made this imputation on Z in
good faith for the protection of his own interests.
(l>) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character
of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
Tenth Exception.—Caution intended for good of person to whom conveyed or for public good. —It'is not
defamation to convey a caution, in good faith, to one person against another, provided that such caution be
intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested,
or for the public good.
COMMENT
In English law the crime of private libel has the tendency to provoke breach of peace. Under
Indian Penal Code, however, defamation has been made an offence without any reference to its
tendency to cause acts of illegal violence. Mental suffering caused to the person defamed is the gist
of this offence. In English law a distinction has been maintained between libel and slander, but
under Indian law no such distinction has been recognised.
Ingredients.—The section requires three essentials :
1. Making or publishing any imputation concerning any person.
2. Such imputation must have been made by—
(a) words, either spoken or intended to be read; or
(b) signs; or
(c) visible representations.
3. Such imputation was made with the intention of harming or with
knowledge or reason to believe that it will harm the reputation of the person
concerning to whom it is made.
1. Makes or publishes any imputation concerning any person.—Every such person who is
engaged in composing, dictating, writing or in any way contributing to the making of a libel is the
maker of the libel.' Where the matter is dictated by one person and written down by another person,
both shall be guilty of this offence. Similarly if one person speaks, another writes and third approves
of it, all the three shall be guilty. The reason is that all who concur and assent to the doing of an
unlawful act will be guilty of this offence.183
Publication of defamatory matter.—For the offence of defamation publication of
defamatory matter is essential. In other words the defamatory matter must be communicated to some
person other than the person to whom it concerns e.g. dictating a letter to a clerk is publication. 184
Where the defamatory matter is communicated to the person defamed, such a communication will
not amount to publication.185 Thus in Taki Hussain's case, a person-despatched a public officer a
notice by post which was closed in a cover. The notice contained imputation on the character of the
recipient. Allahabad High Court was of the view that since there was no publication of the matter,
therefore, this offence was not constituted. 186 In a case A wrote on a piece of paper filthy abuses and
scandalous matter touching the honour and repute of B and posted it to the latter in a registered
envelope marked 'personal'. B on receiving it, read the contents and wrote counter abuses and
slanders about A on the reverse of the same paper, and sent it back to him in another envelope by
ordinary post. The envelope was, however, opened at its destination by C, who read the whole
matter written by both A and B against each other. In this case neither A nor B will be liable for
defamation because there was no publication of the defamatory matter and it will not make a
difference whether the letters containing scandalous matter were sent by registered or ordinary post
because in both the cases they were addressed to the persons concerned. Where the President of a
Municipal Committee placed a letter containing defamatory matter against him, in the official file,
which was read by the members of the committee, it was held that there was sufficient publication
of the defamatory matter.187
Defamatory matter, if written on a postcard, or printed on a paper will constitute publication
when it is distributed or broadcasted. 188 A defamatory petition presented to a superior public officer,
if sent to a subordinate public officer in due course for inquiry would constitute publication within
the meaning of this section.189 Similarly, if a defamatory letter against wife is sent to the husband or
vice-versa, such a communication will constitute publication190 but uttering of libel by a husband to
his wife or by wife to husband would not constitute publication because they are regarded one in the
eyes of law.191 Sale of each copy of a printed libel is a distinct publication of a fresh offence and
hence the accused will be punished for publishing several copies/'
The writer, and the publisher of an imputation are equally guilty. The publisher will not be
permitted to say that he did not write the imputation. 192 But there are certain communications, which
if made in the ordinary course of business do not amount to publication because they are included in
the category of privileged communication. Hence a person exercising the privilege may
communicate matter to a third person in the ordinary course of business and he would escape
penalty provided for this offence. A solicitor or an advocate who dictates to his clerk a letter
containing defamatory statement regarding a person is not liable for defamation.193
183Bacon's Abridged, Vol. IV, p. 457.

184V. Illath v. K. Keshavan, (1900) I Weir 579.
185Sadashiv Atmaram,(1893) 18 Bom. 205.
186Taki Hussain, (1884) 7 All. 205 (F.B.).
187Sukhdeo, (1932) 55 All. 253.
188Thiagaraya v. Krishnasami, (1892) 15 Mad. 214.
189Raja Shah, (1889) P.R. No. 14 of 1889.
190Wenman v. Ash, (1853) 13 C.B. 836.
191Wetmhak v. Morgan, (1888) 20 Q.B.D. 635.
192J.D. Dixit, (1894) 19 Bom. 703.
193Boxus v. Goblet Freres, (1894) 1 Q.B. 842.
In N.L. Shah v. Patel Maganbhui Revabhai and another? an interesting situation arose for decision. There was agitation of lawyers in Gujarat in connection with
appointment and transfer of Chief Justice of High Courts. On account of the agitation the lawyers ceased to participate in court proceeding and resorted to 'satyagraha'. An
editorial in a newspaper criticised as to whether it behoves to the lawyers as a class to resort to strike. The lawyers were inter alia described as "kajia dalal" i.e. dispute
broker, in the editorial. In a suit for defamation against the editor, the Gujarat High Court held that the editorial did not refer to the complainant personally or to any other
individual but referred to the lawyers as a class and at the most the lawyers of Gujarat. The alleged defamation could not be referred to a determinate or identifiable section or
class of lawyers as distinguished from the rest of the members of lawyers fraternity. The words "Kajia Dalai" was held to be used in relation to the lawyers as a class and is
not referable to a determinate section of lawyers, namely, the lawyers who were participating in the agitation. The thrust of the editorial was thatlawyers should not have gone
on strike. If the imputation is defamatory per se, necessary mens rea will be presumed. The maker of the statement must know that it will harm the reputation of one
concerning whom it is made.
The court distinguished between 'character' and 'reputation'. The term 'reputation' means 'what
is generally said or believed about the persons or things', "character" means fortitude or moral
constitution or strength of a person. It has no relevance with the belief or opinion of others in respect
6. Pundit Mokand Ram, (1883) P.R. No. 12 of 1883.

of a person. Therefore, character is what a person "actually is", while "reputation" is what
9. 1984 Cr. L.J. 1790 (Guj.).

neighbours and others say "what he is". The man may have, in fact, a good character and yet suffer
from bad reputation or vice versa. By no stretch of reasoning, the term 'reputation' can imply ones'
own belief about himself.194
Repetition.—Under the Act no distinction has been recognised in the defamation whether
published for the first time or repeated subsequently. A publisher shall be strictly responsible for
publishing a defamatory matter irrespective of the fact whether he is the originator of the libel or is
merely repeating it.195
Publication of defamatory matter in newspaper.—A newspaper stands, in matters of
defamation, in the same position, as members of the public in general. The publisher of the
newspaper shall be responsible for published defamatory matter whether he was aware of that or
not.196 But an editor's position is somewhat different. He can escape his liability by proving that
defamatory matter was published in his absence and without his knowledge and he had in good faith
entrusted the temporary management of the newspaper during his absence to a competent person. 197
The owner of the paper or journal, however as a qua owner has no responsibility.198 The publication
of a notice in a newspaper conveying an imputation that the complainant is dishonest in the
management of the affairs of the company and thus to conceal the dishonesty by methods that are
themselves dishonest is defamation.199
In Asok Kumar Jain and others v. State of Maharashtra? it was held that where a defamatory
statement against a person is published in a newspaper, the editor, printer and publisher who has
made declaration and is shown in paper as such is liable. Where it is alleged that the Chairman of
Board of Directors of Company and its General Manager took part in selling out newspaper, it is
indicative of the fact that they had prior knowledge of defamatory matter in paper which they could
have prevented but they did not, they would be guilty of the offence and cannot escape liability
under Section 502 unless they can make out a case of exception under Section 499.
In Shatrughna Prasad Sinha v. Rajhhau Surajinal Rathi? the respondent a social activist
belonging to Marwari Community filed a complaint against the appellant for his interview published
194N.L. Shah v. Patel Maganbluii Revabhai and (mother, 1984 Cr. L.J. 1790 (Guj.).
195Harbhajan Singh, A.l.R. 1961 Punj. 215.
196Mc Lead, (1880) 3 All. 342.
197Rama Sami v. Lokaneda, (1886) 3 Mad. 387.
198Bhagat Singh v. A'. Lachman Singh, A.l.R. 1968 Cal. 296.
199M.G. Chitnavis v. N.B. Khare, 1962 Cr. L.J. 1119.
7. 1986 Cr. L.J. 1987 (Bom).
8. 1997 Cr. L.J. 212 (S.C).
in "Star Dust" a film magazine in which he was alleged to have stated that "Marwari community
have no faith and love towards India, their motherland. Complaints were filed by the respondent at
Pune and Nasik. It was alleged in the complaint that this statement was published with deliberate
and malicious intention of outraging the religious feelings of Marwari community and this also
defamed the member of Marwari community as a class". The Magistrate at Pune took cognizance
and issued the process. According to the respondents, these allegations constitute an offence under
Section 295-A and Section 500 read with Section 34 of the Penal Code. The High Court had held
that no offence under Section 295-A could be made out but the allegations prima facie constitute an
offence under Section 500, IP. Code.
As far the complaint filed is concerned it was held that it does not contain any of the
allegations constituting the offence of defamation defined in Section 499. The Magistrate at Pune
was not justified in issuing process against the appellant and hence the complaint is quashed.
But as regard the complaint at Nasik was concerned it was held that it was not for the
Supreme Court to see whether the complaint constitutes an offence under Section 499, IP. Code.
The Magistrate at Nasik came prima facie to the conclusion that the allegations disclosed in the
complaint might come within the definition of Section 499, IP. Code. It is for the Magistrate to
weights the facts at trial and hence at this stage it is not proper for-the Supreme Court to quash the
complaint.
Imputation concerning any person.—Imputation concerning any person may be conveyed
obliquely or indirectly, or by way of question, conjecture, exclamation or by irony. 1 The expressions
such as coward, dishonest man and something worse than either and imputation of bringing false
charge against the accused are regarded defamatory. 2 But it is necessary that the words should
contain imputation concerning some specific person or persons whose identity can be established.
Imputation may concern to an individual or to a class of individuals. A newspaper is not a person
and therefore, it is not an offence to defame a newspaper. Defamation of newspaper may, in certain
cases,- Involve defamation of those responsible for the publication.3
Imputation should have been made by words either spoken or intended to be read by
signs or by visible representation.—In India a person can be defamed not only by writings, he can
also be defamed by spoken words. Here at this point Indian law of defamation differs from English
law of defamation. Under English law only writing, printing, engraving, or some other process only
can constitute defamation. Spoken words never constitute defamation. Under that law spoken words
furnish ground for a civil action. In the Indian Penal Code the words furnish ground for a civil
action. In the Indian Penal Code the word defamation has been used to denote what is known as
libel and slander under English law. The words 'visible representation' will include every possible-
form of defamation which ingenuity can devise. Thus a statute, a caricature, an effigy, chalk marks
on a wall, signs or pictures may constitute a libel, 4 in addition to words spoken. The publication of a
group photograph with a false caption "goonda" would be defamatory.5
Intending to harm, or knowing or having reason to believe that such imputation will
harm.—There must be an intention to harm the reputation of
1. Archbold 35th Edn. p. 3635.
2. Mc Canity, (1887) 9 All. 420.
3. Mating Sein, (1926) 4 Rang. 462.
4. Monson v. Tussands Ltd., (1894) 1 Q.B.D. 671.
5. C. Pillai v. Karanjia, (1962) 2 Cr. L.J. 142.
the complainant or the knowledge that the imputation will harm the reputation of such person. 200 It is
not necessary that actual harm should result.201
200Municipal Board Konch, A.l.R. 1952 All. 114.

201T.G. Goswami, A.l.R. 1952 Pepsu 165.
The test to determine whether any statement is defamatory or not is whether under the
circumstances in which writing was published, a person of reasonable prudence to whom
publication was made would be likely to understand it in a libellous sense.202
Thus where certain article published in a paper contains scandalous accusation against the girl
students of a college which implied that the girls were habitually guilty of misbehaviour described
in the article, each girl thereby individually suffered in reputation and hence some of the girls were
held entitled to maintain action for defamation. 203 A is charged for publishing a defamatory
statement against B in the press. B alleges the statement published in the press is untrue. Here if the
statement is published in good faith without any intention to harm or knowing or having reason to
believe that it may harm, A will not be liable.
By harm is meant imputation on a man's character made and expressed to others so as to
lower him in their estimation. Anything which lowers him in his own estimation does not constitute
defamation.204 Where A files a case of defamation against B and B asserts that A has no reputation,
the plea of B would fail because everybody is possessed with some reputation and therefore, if a
case of defamation is otherwise made out B will be liable.
Where the accused had no malice or ill-will towards the complainant and there was no cogent
evidence that the complainant ever obstructed the entry of the accused to cinema without any ticket
which could have offended the accused and the evidence on the whole creates doubt in the
prosecution version about the guilt of the accused, the accused will be discharged from the
allegation/'
Defamatory article.—In M.P. Narayana Pillai and others v. M.P. Chako and another,205 it
was held that where an article is published in many parts and some containing defamatory materials,
others not, in such a case article as a whole must be read. The impact and effect of the imputations
has to be considered in the background of the entire facts and circumstances stated therein. If the
disreputable part can be removed by the other parts and the conclusions, then no prosecution for
defamation can be launched by picking and choosing the disreputable part alone. The circumstances
under which and the portions of the article wherein the alleged defamatory imputations occur and
their impact on the mind of the reader or reading the article as a whole has to be considered.
Explanation J . —This explanation will come into operation when—
(a) the imputation would have hurt the deceased's reputation, and
(b) it would also have hurt the feeling of his family and relatives. A suit was brought
by the heir and nearest relation of deceased person for
defamatory words spoken of such deceased person but alleged to have caused damage to the
plaintiff as a member of the same family, it was held that thesuit was not maintainable. 206
6. Kami Prasad Sharma v. Sumed Kumar Gupta, 1984 Cr. L.J. (N.O.C.) 134 (All.).
7. 1986 Cr. L.J. 2002 (Kerala).
Explanation 2.—An action for libel will lie at the suit of an incorporate trading company in
respect of a defamation calculated to injure its reputation i the way of its business. 207 A coiporation
has no reputation apart from its propert or trade. It cannot maintain an action for a defamation
merely affecting persons reputation. This explanation covers any collection of persons but such
collectio of persons must be identifiable in the sense that one could with certainty sa that this group
of particular people has been defamed as distinguished from th rest of the community.
In M.P. Narayana Pillai and others v. M.P. Chako and another? it wt held that imputations
against an association or collection of persons can h defamatory only if such persons are definite and
202Luchmi Narayan, A.l.R. 1931 All. 126.

203Wahid Ullah Ansari, A.l.R. 1935 All. 743.
204Taki Husain, (1889) 17 All 205, 220 (F.B.).
205Municipal Board Konch, A.l.R. 1952 All. 114.
206Luckumsey Ronji v. Hurbans Nursy, (1881) 5 Bom. 580.
207S.H. Coal Co. v. N.E.H. Association, (1894) 1 Q.B. 133.
determinable body. Only if thei is a definite association or collection of persons capable of being
identified, could be said that the imputation against it affects all of them and any memb of the class
can say that the imputation is against him also personally so as i entitle him to file a complaint for
defamation. There cannot be defamation again a community as such.
Explanation 3.—A statement innocent in form or in the form of ; alternative will amount to
defamation if it is ironical.208
Explanation 4.—This explanation makes it clear that the term referred to the Explanation has
reference to imputation on a man's character made to low him in the estimation of others and not of
himself.209 Thus describing a worn: that she has paramours wherever she goes, is per se
defamatory.210
An imputation that a person would be ex-communicated if he carries ' i the business of leather,
and if he participates in social functions and takes mea is certainly one which lowers the moral
character of that person not only itself but also in respect of his profession in business of leather.211
Exception 1.—The requirement of this exception are :—
(1) that the impugned statement must be shown to be true; and
(2) that its publication must be shown to be for public good. This exception and
exception 4 requires that the imputation should be tn
The remaining exceptions do not require it to be so; they require that it shoi be made in good faith. It
is also necessary that truth when set up as a defer must extend to the entire defamation and not only
to a part of it.212
No amount of truth will justify a libel unless it is established that publication is for public good. Where the imputation is good but it is ; published for public good
but only for a community such a publication can be held to be good.213 When the allegations are themselves defamatory and tl are not proved true, no question of fair
comment will arise. A mere exaggerat does not make a comment unfair.214" The Bombay High Court has taken the vithat the defamatory article must be read in its entirety
and the court must decide what impression would be produced on the mind of an unbiased reader. 215 In a case A and B were two rival candidates to the Chairmanship of
Town Area Committee, A objected to the nomination of B on the ground that he was a drunkard. In a charge for defamation A can plead that his statement was true and was
made in good faith for public good. Thus he can claim the defence under exception 1 to this section.
In Jawaharlal Darda v. Manoharrao Ganpatrao,216 the respondent Manoharrao Ganpatrao

Kapiskar filed a complaint in the Court of C.J.M. alleging that by publishing a news item in its
3. 1986 Cr. L.J. 2002 (Kerala).
newspaper "Dainik Lokmath" on 4-2-1984. Mr. J.L. Darda the Chief Editor of the daily along with
others have committed offences punishable under sections 499, 500, 501 and 502, read with section
The news item in the instant case was that when a question regarding mis-appropriation of
Government funds was put to the Minister concerned, he had replied that a preliminery enquiry was
10.Murlklhar, 16 Cr. L.J. 141.
made by the Government and it disclosed that some mis-appropriation had taken place. When
questioned further about the names of persons involved, he (the Minister) had disclosed the name of
five persons including that of the complainant. Under these circumstances the complainant alleged
that he had been defamed.
The Supreme Court observed that "what the accused had published in its newspaper was an
accurate and true report of the proceedings of the Assembly. Involvement of the respondent was
disclosed by the preliminary inquiry made by the Government. If the accused bona fide believing
the version of the Minister to be true published the report in good faith it cannot be said that they
intended to harm the reputation of the complainant."
It was held that as the news items was published for public good and not to malign the
reputation of the complainant, therefore, no offence against the accused was made out.
208R. Shankar, A.I.R. 1959 Ker 104.

209Amur Singh, (1962) 2 Cr. L.J. 698.
210J. Chelliah v. Rajeshwari, (1969) Cr. L.J. 571.
211Pokhai v. Dina and others, 1984 Cr. L.J. (N.O.C.) 157 All.
212Chandra Shekhar v. Karthikeyan, A.I.R. 1964 Ker. 277.
213Vinayak, 43 Cr. L.J. 174.
214Luckumsey Ronji v. Hurbans Nursy, (1881) 5 Bom. 580.
215S.M.B. Mehta, A.l.R. 1917 Bom. 62.
216S.M.B. Mehta, A.l.R. 1917 Bom. 62.
Exception 2.—Any person occupying a public position renders himself open to criticism for
his actions while discharging his functions from the position he occupies. Such a criticism must be
made in good faith and it must relate to actions of public servants. Good faith presupposes a
reasonable degree of care and caution in making an imputation which on the face of it is defamatory.
It does not merely imply absence of ill will. In order that the comment may be fair :
(a) it must be based on facts truly stated;
(b) it must not impute corrupt or dishonourable motives to the person whose conduct
or work is criticised except in as far as such imputations are warranted by the fact;
(c) it must be honest expression of the writers real opinion made in good faith; and
(d) it must be for the public good.
Fair criticism, however, does not justify a personal incentive since an attack on a person's
private life is not privileged but sometimes a private question may become a public one if public is
called upon to support it.217 The whole character of a person cannot be under public character alone
is involved.
2. AIR 1998 S.C. 2117.
It was held In re Arundhati Roy,218 that the broad and general proposition that a reply
submitted to a contempt notice can, in no case, amount to contempt of court in the light of second
exception to section 499 of the Indian Penal Code is contrary to the Law of Contempt as adjudicated
by the courts in the country from time to time and the limits prescribed by the Act and the judicial
pronouncements which are well within the knowledge of, all reasonable citizens. The law of
defamation under the Penal Code cannot be equated with the Law of Contempt of Court in general
terms.
It was further held that even a person claiming the benefit of second exception to section 499
Indian Penal Code is required to show that the opinion expressed by him was in good faith which
related to the conduct of a public servant in the discharge of his public functions or respecting his
character so far as his character appears in that conduct. Under the Law of Contempt statements
made in pleadings, petitions and affidavits of the parties, in a number of cases, have been held
defamatory statements amounting to offences under the section unless it is shown that they fall
within any of the exceptions. The benefit of exception even under the law of defamation, much less
in contempt proceedings may not be available if the insinuations are made against an institution of
the State and not restricted to persons as an individual or a collection of persons.
Exception 3.—The conduct of publicists who take part in politics or other matters concerning
the public can be commented on in good faith. In construing a document the courts are not
concerned with what the parties intended but with what the parties did and what they said; the words
actually used by them and language actually employed. Thus the Rangoon High Court has held that
where the editor of a newspaper not content with making a comment upon the happenings in a
municipal office observed that the respondents' conduct was inconsistent and topsy turvy; use of
such expression was unjustified and he will be guilty under section 500, IP. Code.219
Exception 4.—This exception requires that the report of the proceedings of a court of justice
should be without malice. It should be a fair and accurate report of what took place before the
tribunal. This exception does not require good faith. It is not confined to judgment and orders but
also covers pleadings whether relevant or not.220 According to the Supreme Court :
"The fourth exception says that it is no defamation to publish a
substantially true report of the proceedings of a court of justice but does
not make any such concession to proceedings of a House of Legislature or
the Parliament."221
It was held in T. Satish U. Pai v. Narayan Nagappa Nayak,222 that once first information
report is lodged alleging commission of offences under the Indian Penal Code and public authorities
take cognizance of the same initiating necessary legal action, report published in newspaper of any
217Mcleod, (1880) 3 All. 342.

2182002 Cri. L.J. 1792 (S.C).
219U. Po Hugin, A.I.R. 1940 Rang. 21.
220K. Harendra, 1973 Cri. L.J. 1637.
221Dr. J.C. Ghosh, A.I.R. 1961 S.C. 613.
2222002 Cri. L.J. 4416 (Karnataka).
of the proceedings relating to crime giving contents of F.I.R. would not amount to defamation.
Publication of such news item about court proceeding would squarely fall within fourthexception of
section 499, Indian Penal Code and proceedings against journalist are not sustainable.
Exception S.—The administration of justice is a matter of universal interest to the whole
public. Therefore, a free comment on the judgments of the court, the verdict of the jury, the conduct
of parties and of witnesses is necessary. The criticism must not intentionally assail the character of
others or impute criminality to them. A journalist is supposed to discharge his duties fairly and if his
comments are fair no one will be permitted to complain.223
Exception 6.—This exception deals with literary criticism of public performance submitted
to its judgment. It covers criticism of book published on literature, art, painting, speeches made in
public, acting, singing, etc. The criticism must be fair and made in good faith.
Exception 7.—This exception allows a person under whose authority others have been
placed either by their consent or by law to censure in good faith, those who are so placed under his
authority so far as regard matters to which that authority relates. A municipal engineer reported to
the Municipality that stock of meal was taken away by the contractor. It was held that if the report
being made was in good faith this exception will apply. 224 Statements made by a person during
police investigation merely expressing suspicion as to complicity of certain person in crime will not
amount to defamation.225
In Harsh Mendiratta v. Maharaj Singh? the plaintiff was the wife of Arjun Lai Mendiratta
who was working as Assistant to Project Director of Food and Agriculture Organisation of the
United Nations with headquarter at Delhi. It is alleged that the defendant did not give him any
charge of Assistant to the Project Director and instead had been harassing him in many ways. It is
alleged that defendant Maharaj Singh expressed the views that he had no choice but to accept Mr.
Mendiratta with greatest reluctance and this statement reflects on the competence of Arjun Lai
Mendiratta and as such is defamatory causing mental torture, pain and agony to the plaintiff and her
family. It was held by the Delhi High Court that the general remarks made by some authority
regarding the competence of a subordinate would not amount to defamation. The alleged statement
per se, even, if made by Maharaj Singh is not defamatory. It does not reflect adversely on the work,
conduct, reputation or character of Mendiratta or the plaintiff. It was further observed that it is not
the plaintiff's case that the defendant made any allegation in respect of person's character or moral
turpitude against Mendiratta.
Exception 8.—This exception will be attracted if it is proved—
(1) that the person to whom the complaint was made had lawful authority over the
officer complained against; and
(2) that the accusation was made in good faith.226
It is necessary for the application of this exception that the complaint is bona fide and not
made with the intention to injure any one. A complaint to a police constable is not privileged and
will not fall under this exception.227 Astatement in first information report will fall under this
exception oniy if there was good faith of the person making the accusation.'
4. 2002 Cri. L.J. 1894 (Del.).

Accusation in a newspaper is not covered by this exception. 228 Exception 9.—Where a defamatory
statement is made in good faith for the protection of the interest of the person making it, this
exception will come into operation. Interest of the person has to be real and legitimate, 229 e.g. where
a notice was issued on behalf of a Hindu widow, charging the accused with criminal breach of trust
and the reply of the accused was that the widow was living an immoral life, it was held that the
223Woodgate v. Ridout, (1865) 4 F & F. 202, 216.

224J.N. Mukerjee, A.l.R. 1934 Pat. 548.
225G.R.D. Agarwal, A.l.R. 1950 Nag. 20.
226In re K. Anjaneyalu, 17 Cri. L.J. 381.
227Ibid.
228Chandra Shekiiar Pillai, (1964) 2 Cri. L.J. 549.
229Chamanlal, A.I.R. 1970 S.C. 137.
exception applied.230 Even if the imputation is baseless and incorrect but if made in good faith for
the public good exception will apply.231 In L.C. Randhir v. Girdhari Lai,232 G i.e. Girdharilal was
dismissed employee of the Indian Bureau of Mines. G wrote a letter to the Controller of the Bureau
stating certain facts about the financial position and dealings of R (L.C. Randhir) who was also an
employee subordinate to the Controller. According to R that letter constituted defamation and was
written by the accused out of malice with a view to harming the chances of his expected promotion.
The letter contained imputation of the character of R suggesting that in all probability he was
collecting wealth by practising corruption. The imputations could be considered for public good
inasmuch as R was occupying a supervisory position in a Government concern and it could always
be in the interest of the public that the office is without blemish and not occupied by a person
practising corruption. In order to prove that the imputation was made in good faith, it is not enough
to prove that the accused believed it to be true. The belief must have been inspired on rational basis
and if due care and attention is not given by the accused before making the statement, that would
defeat the plea of good faith. In this case considering the circumstances in which the letter in
question was written by the accused to the superior officer of the complainant, non-proof of express
malice materially showing that the accused was careful enough in making the inquiry which is in
fact demonstrated by the admission that most of the articles shown as purchased have really been
purchased during the period indicated by the accused, there was enough ground for holding that the
accused acted with due care and caution, at any rate he was not reckless and there is preponderance
of probability that he acted in good faith. Thus G was not guilty of defamation.
Advocates.—In absence of express malice or wantonness or private motive, the advocate is
protected under the exception.233 The court ordinarily presumes that the defamatory matter was
published in good faith and made on instructions.
Witness.—A witness has no absolute privilege as regards statement made by him. He has
only a qualified privilege under exception 1 or 9. 234 Where a witness is compelled to give an answer
in making a defamatory statement and answer was given on the basis of compulsion he will be
protected by thisexception.235
1. Sanghvi Champak Lai Ogand, A.I.R. 1955 Sau. 19.

Parties.—Parties will be entitled to protection under exception 9 if the statement is bona fide
and with a view to protect their interest.236
Judge.—Section 77, Indian Penal Code protects judges for acts done when acting judicially.
Where the judge censures the conduct of a witness in good faith he is protected. An action for
defamation cannot be maintained against a judge for words, spoken by him whilst trying a cause in
court, even though such words are alleged to be false, malicious and without reasonable cause.237
Club committee.—The committee members of a social club, even if wrong, are given
protection under this exception, but for this exception it would be impossible for such a body to
function.
Reports.—The reports of an officer in the execution of his duty under his superior's orders
which contains defamatory imputations against others, but which does not appear to have been made
recklessly or unjustifiably is covered by this exception. A totally false report, however will not be
protected.238
Legislators.—An absolute privilege is attached to the speeches made on the floor of the
house either of Parliament or State Legislature. Exceptions to section 499 are exhaustive and cannot
be enlarged.239
230Sankaminna, A.I.R. 1925 Mad. 246.

231In re Harinarayan, A.I.R. 1963 M.P. 60.
2321978 Cri. L.J. 879.
233Upendranalh Bagchi, 9 Cri. L.J. 165.
234E.P. Reddi, A.I.R. 1926 Mad. 236.
235Narayan Aiyar, A.l.R. 1951 Mad. 34.
236Sayed Ali, A.l.R. 1925 Rang. 360.
237Raman Nayar v. Subramanya Ayyar, (1893) 17 Mad. 87.
238Rajnarain Sein, (1870) 6 Beng. L.R. (Appx) 42.
239(1969) 1 S.C.C. 37.
Difference between exceptions 8 and 9.—In exception 8, the person to whom the complaint
is made must have lawful authority to deal with the subject-matter of the complaint; while under
exception 9 there is no such requirement, it would be sufficient if communication is made to a
person for the protection of one's own interest alongwith that of the other or is made for public
good.240
Exception 10.—For attracting this exception it must be proved that the accused intended in
good faith to convey a caution to one person against another, intending for the good of the person to
whom the caution was conveyed or to some person in whom the person is interested or for public
good.241 The caution is intended to be given to the person to whom it is intended. The imputation
must be made in good faith.
500. Punishment for defamation.—Whoever defames another shall be punished with
simple imprisonment for a term which may extend to two years, or with fine, or with both.
COMMENT
This section provided punishment for defamation. The quantum of punishment according to
this section may extend to two years, whether with or without fine.
In Rekhabai v. Dattatraya? it was held that where an offence of defamation is committed
through a letter, the case can be tried either at the place where the letter was written and posted or at
the place where the letter was received and read.
501. Printing or engraving matter known to be defamatory.—Whoever prints or engraves
any matter, knowing or having good reason to believe that such matter is defamatory of anyperson, shall
be punished with simple imprisonment for a term which may extend to two years, or with fine, or with
both.
8. 1986 Cri. L.J. 1797.

COMMENT
This section makes a printer or engraver of defamatory matter punishable not as an abettor
but as a principal offender if such a person knows or has reason to believe that the matter printed or
engraved is defamatory. The publisher shall also be liable. 242 For the application of this section
following are the two essentials :
1. The accused printed or engraved a defamatory matter.
2. The accused knew or had reason to believe that such matter was defamatory.
502. Sale of printed or engraved substance containing defamatory matter.—Whoever sells or offers for
sale any printed or engraved substance containing defamatory matter, knowing that it contains such
matter, shall be punished with simple imprisonment for a term which may extend to two years, or with
fine, or with both.
COMMENT
This section supplements the provisions of the previous section by making the seller of
defamatory matter punishable.
Ingredients.—The section requires following essentials :
1. Selling or offering for sale any printed or engraved substance, and
2. Knowledge that such substance contains defamatory matter.
240Kanwal Lai, A.l.R. 1963 S.C. 1317.

241H.P. Baidya, A.l.R. 1930 Cal. 645.
242Ramesh Chander, 1966 Cri. L.J. 292.
CHAPTER XXII
OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE
503. Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or
property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to
that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits
criminal intimidation.
Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is
interested, is within this section.
Illustration
A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is
guilty of criminal intimidation.
COMMENT
The offence of criminal intimidation consists of threat by one person to another or to any
other person in whom that other person is interested. The threat is intended to cause alarm.
Ingredients.—This section has the following essentials :—
1. Threatening a person with any injury—
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person
is interested.
2. The Threat must be with intent—
(i) to cause alarm to that person, or,
(ii) to cause that person to do any act, which he is not legally
bound to do, as the means of avoiding the execution of such threat,
or
(iii) to cause that person to omit to do any act which that
person is legally entitled to do as the means of avoiding the execution
of threat.243
Threatens another with any injury.—For determining whether this offence has been
committed or not one has to see the effect of threat on the mind of the person threatened. .Therefore,
it is necessary that the threat must be communicated to him in some way. If the threat is not
communicated or intended to be communicated, no question of intimidation will ever arise. It is also
necessary that the threat should be one which can be put into execution by the person threatening. It
is, however, not necessary that the injury should be inflicted by the offender. It is sufficient if he can
cause it to be inflicted by a stranger. Punishment by God is not one which a person could cause to
be inflicted or the execution of which he could avoid.244
Mere vague allegation by a person that he is going to take revenge by false complaints cannot
amount to criminal intimidation.245 To be indictable it must be made with intent to cause alarm to
the complainant.
Threat of injury to reputation.—Where a person threatens to cause injury to the reputation
of another person by any means he will be guilty of this offence. Thus in the case of Ramesh
243Ramesh Chandra Arora, A.l.R. 1960 S.C. 154.

244Doraswamy Ayyar, (1924) 48 Mad. 774.
245Govind, (1900) 2 Bom. L.R. 55.
[ S. 503
Chandra Arora,246 the accused, took indecent photograph of a girl and threatened her father that if
"hush-money" was not paid to him, he would publish the photograph. It was held by thp Supreme
Court, that the accused was guilty of criminal intimidation.
Where A abuses B to such an extent as to reduce B to a state of abject terror, it may be said
that A is guilty of criminal intimidation because abuses hurled by A on B were intended to injure
his reputation inasmuch as he was terrified by them.
Threat to ruin by "alse cases.—If one person threatens another to ruin him by cases he
cannot be convicted under this section because no offence is committed by him. But if he threatens
to ruin by false cases he will be convicted under this section. 247 A threat in order to be indictable
must be made with intent to cause alarm to the complainant. A threat by a person who was called
upon to pay house-tax under a warrant for the attachment of his brother's property, that he would
take legal steps was not a threat of injury as defined in the Code.248
Threat of picketing.—Where a person threatens another of picketing he will be guilty of this
offence and will be convicted under this section.249
Threat of social boycott.—A threat of social boycott will not fall under this section because
threat of injury in such cases is not of the nature defined in this section.250
Threat of ex-communication.—Where the accused told the complainant that he should give
up his field otherwise he will be declared an outcaste, the accused will not be guilty of this offence
because threat does not fall under this section.251
Threat of killing.—The indictment for threat of killing will depend on the nature of the
threat conveyed to the complainant. Where one brother ran towards the other with a sword but was
seized by other persons and disarmed, even then he threatened to kill him when he will become free,
it was held that no offence was committed. 252 When however the accused threatened the Revenue
Inspector to desist from destroying his property otherwise he will kill him, he was held to be guilty
of this offence.253
Threat of vengeance.—A threat of vengeance has been held to be an offence within the
meaning of this section.254
Criminal intimidation and extortion.—Criminal intimidation is analogous to extortion. In
extortion the immediate purpose is obtaining money or money's worth; in criminal intimidation, the
immediate purpose is to induce the person threatened to do, or abstain from doing, something which
he was not legally
246A.I.R. 1960 S.C. 154.

247Jowahir Pathak v. Prabhoo Ahir, (1902) 30 Cal. 418.
248Dayabhai Narottomdas, (1906) Cr. Ref. No. 67 of 1906.
249Raghubar Dayal, (1930) 53 All 407.
250Hanuman Prasad Matadin, A.I.R. 1949 Mad. 546.
251Alya Dhurma, (1870) Unrep. Cr. C. 37.
252Dataram, (1882) P.R. No. 45 of 1882. '
253In re Annatamu Chettiar, A.I.R. 1959 Mad. 342.
254Purushottam Vanainali, (1896) Unrep. Cr. C. 850.
a 505 ] OF CRIMINAL INTIMIDATION, INSULT AND 777
ANNOYANCE
bound to do or omit.
Person informed about threatened injury to another must be interested
in him.— Where one person is informed about injury to another he can maintain an action under this
section if he can establish that he is interested in him. In a case a fabricated petition was sent to the
Revenue Commissioner, containing a threat that if a certain Forest Officer was not removed from
the place, he would be killed. It was held that the person to whom the petition was addressed was
not interested in the person threatened, therefore, the act of the accused did not amount to criminal
intimidation.' Had,Revenue Commissioner been interested in the Forest Officer the threat would
have amounted to criminal intimidation. A threat to commit suicide is not within the section unless
the other person be interested in the person giving the threat.255
504. Intentional insult with intent to provoke breach of the peace.—Whoever intentionally
insults, and thereby gives provocation to any* person, intending or knowing it to be likely that
such provocation will cause him to break the public peace, or to commit any other offence,
COMMENT
Ingredients.—Following are the ingredients of this section :—
1. Intentionally insulting a person.
2. The insult must be such as to give provocation to the person insulted. 1
3. The person insulting must intend or know it to be likely that such provocation
will cause him to break the public peace or to commit any other offence.
This section provides a remedy when abusive or insulting language is used. Abusive language
which may lead to a breach of public peace is not an offence. Abusive language must be used with
an intention to abuse. A person can be insulted by words or conduct. If it is by words, the words
must amount to something more than mere vulgar abuse. 256 Mere breach of good manners is not an
offence.257 If insult is of such a nature that a person becomes infuriated to such an extent that he
disturbs the public peace or commits any other offence, the offence shall be deemed to have been
committed.258
Distinction between section 499 and section 504.—The most important difference between
'defamation' mentioned in section 499 and 'insult' mentioned in section 504 lies in the fact that in
defamation, publication to prosecutor alone is not sufficient because it does not affect reputation, but
under section 504 it will be treated as an offence.
505. Statements conducing to public mischief.—(1) Whoever makes, publishes or
circulates any statement, rumour or report,—
(a) with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman
in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail
in his duty as such ; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to
1. Manges Jivaji, (1887) II Bom. 376.

any section of the public whereby any person may be induced to
commit an offence
against the State or against the public tranquillity ; or (c) with
intent to incite, or which is likely to incite, any class or community of
persons
to commit any offence against any other class or community; shall
be punished with imprisonment which may extend to three years, or with
fine or with both.
Statements creating or promoting enmity, hatred or ill-will between classes.—(2) Whoever makes,
publishes, or circulates any statement or report containing rumour or alarming news with intent to create or
promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language,
caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different
religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment
Offence under sub-section (2) committed in place of worship etc.—(3) Whoever commits an offence
specified in sub-section (2) in any place of worship or any assembly engaged in the performance of religious
worship or religious ceremonies, shall be punished with imprisonment which may extend to five years, and shall
255Nubi Bux v. Mst. Omra, (1866) P.R. No. 109 of 1866.

256Pukhraj, (1953) 3 Raj. 983.
257Abraham, A.l.R. 1960 Kerala 236.
258Mohd. Sabad Ali v. Thuleswar Borah, (1954) 6 Assam 279.
Exception.—It does not amount to an offence, within the meaning of this section, when the person
making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that
such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such
intent as aforesaid.
COMMENT
This section punishes those statements which are capable of inducing mutiny or induce one
section of population to commit offence against another. Its object is also to prevent and remove
communal tensions. In the case of Kedar Nath259 the Supreme Court held that this section is not in
violation of the fundamental right of freedom of speech and expression under Art. 19 (1) (a) of the
Constitution.
506. Punishment for criminal intimidation.—Whoever commits the offence of criminal
intimidation shall be punished with imprisonment of either description for a term which may
If threat be to cause death or grievous hurt etc.—And if the threat be to cause death or grievous hurt, or
to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for
life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall
be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or
with both.
507. Criminal intimidation by an anonymous communication.—Whoever commits the
offence of criminal intimidation by an anonymous communication, or having taken precaution
to conceal the name or abode of the person from whom the threat comes, shall be punished
with imprisonment of either description for a term which may extend to two years, in addition
to the punishment provided for the offence by the last preceding section.
COMMENT
Under this section the accused can be convicted if it is established that he committed criminal
intimidation by an anonymous letter. Where A extorts money by sending anonymous letters as if
from God, conveying threats of Divine punishment if certain sum of money be not paid to B, he is
not punishable under this section, because neither he can inflict it nor he can cause it to be
inflicted.260
508. Act caused by inducing person to believe that he will be retuiered an object of Divine
displeasure.—Whoever voluntarily causes or attempts to cause any person to do anything which
that person is not legally bound to do, or omit to do any thing which he is legally entitled to
do, by inducing or attempting to induce that person to believe that he or any person in whom
259A.I.R. 1962 S.C. 955.

260Doraswamy Ayyar, (1924) 49 Mad. 774.
S. 510 ] OF CRIMINAL INTIMIDATION, INSULT AND 779

ANNOYANCE
be is interested will become or will be rendered by some act of the offender an object of Divine displeasure if he does
not do the thing which it is the object of the offender to cause him to do, or if he does the thing which it is the object of
the offender to cause him to omit, shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine, or with both.
Illustrations
(a) A sits dharna at Z's door with the intention of causing it to be believed that, by so sitting, he renders Z an object of
Divine displeasure. A has committed the offence defined in this section.
(b) A threatens Z that, unless Z, performs certain act, A will kill one of A's own children, under such circumstances
that the killing would be believed to render Z an object of Divine displeasure. A has committed the offence defined in
this section.
COMMENT
This section is intended to prevent such practices as dharna. If a person with a view to bring divine
displeasure against another person stages a dharna at his door or kills his son, such a person shall be
punished under this section. A person who is excommunicated by his priest does not become an object of
divine displeasure.261
509. Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending
to insult the modesty of any woman, utters any word, makes any" sound or gesture, or exhibits
any object, intending, that such word or sound shall be heard, or that such gesture or object
shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished
with simple imprisonment for a term which may extend to one year, or with fine or with both.
COMMENT
The essential element of this section is to insult the modesty of a woman. 262 If a person with an
object to insult the modesty of a woman exposes private part of his body to her or uses obscene words or
exhibits obscene drawings, he commits an offence under this section.
Ingredients.—(1) Intention to insult the modesty of a woman.
(2) The insult—
(i) must be caused by uttering any word or making any sound or gesture or exhibiting any
object intending that such word or sound shall be heard or that gesture or object shall be seen by
such woman; or
- (ii) must be caused by intruding upon the privacy of such woman. Indecent overtures.—In a case
the accused was a graduate of a University. He wrote a letter to an English nurse containing indecent
proposals and sent it to her in an envelope. It was held that the accused had outraged her modesty.263
510. Misconduct in public by a druiiken person.—Whoever, in a state of intoxication,
appears in any public place or in any place, which it is a trespass in him to enter, and there
conducts himself in such a manner as to cause annoyance to any person, shall be punished
with simple imprisonment for a term which may extend to twenty-four hours, or with fine
which may extend to ten rupees, or with both.
COMMENT
Mere intoxication is not made punishable by this section. This state of affair is punishable only if a
drunken person goes to a public place or to a place he has no right to visit and causes annoyance to the
public.
Ingredients.—Following are the ingredients for the application of this section :
(1) Appearance of a person in a state of intoxication in any—
(i) public place; or
(ii) place entry on which would amount to trespass.
261De Cruz, (1884) 8 Mad. 110.

262Phiaz Mohammed, (1903) 5 Bom. L.R. 502.
263Tarak Das Gupta, (1925) 28 Bom. L.R. 90.
(2) The person so appearing must have behaved in such a manner
as to cause annoyance; to any person.
CHAPTER XXIII OF ATTEMPT TO COMMIT
OFFENCES
511. Punishment for attempting to commit offences punisltable with imprisonment for life
or other imprisonment.—-Whoever attempts to commit an offence punishable by this Code with
imprisonment for life or imprisonment, 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 with
imprisonment for any description provided for the offence, for a term which may extend to
one-half of the imprisonment for life or, as the case may be, one-half of the longest term of
imprisonment provided for that offence, or with such fine as is provided for the offence, or
264
with both.
; Illustrations ,/
~ (a) A makes an attempt to steal some jewels by breaking open a box, and finds, after so opening the
box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty
under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hands into Z's pockets. A fails in
the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.
COMMENT
In the analysis of criminal conduct, one may distinguish the following stages : (1) conceiving
the idea of committing a legally prescribed harm, (2) deliberation, (3) the mens rea or
contemplation, (4) preparation, (5) attempt stopped before the/necessary conduct was completed,
and (6) completion of that conduct, witli or Without attainment of the end sought. The first two
stages may be relevant to ethical evaluation, they are not legally significant. As regards mens rea
while it is material, it is not sufficient to incur penal liability. 265 The mere intention to commit a
crime is not punishable, for the devil himself knows not the thought of a man. It is always possible
that a human being may change his evil intention, therefore only an evil intention accompanied with
an overt act is made punishable in law. When such an evil intention is expressed in words and can
be inferred from acts of a person he can be held criminally responsible.
After contemplation the next stage is of preparation. Preparation is punishable in certain
exceptional cases only because those cases exclude the possibility of an innocent intention. After
preparation the next stage is that of attempt. Attempt is direct movement towards the commission of
an offence.
Preparation.—Preparation consists in devising or arranging means or measures necessary for
the commission of the offence. Ordinarily preparation is not punishable. The reasons as to why
preparation is not punishable are four fold.266
1. Firstly, a preparation apart from its motive is generally an harmless
act.
2. Secondly, it would be impossible in most of the cases to show
that preparation was directed to a wrongful end or was done with an evil
motive or intent. It is not possible to say definitely that the preparation
made by a person was not with a view to commission of a crime.
3. Thirdly, it is not the policy of law to create and multiply offences and if
preparation were to be punished innumerable offences will have to be created.
4. Fourthly, a mere preparatiotr does not ordinarily affect the sense of security of
the individual to be wronged, nor would the society be disturbed or alarmed as to rouse its
sense~ofrvengeance.
Apart from the above reasons pointed out by S. Huda, if preparation is made punishable there
is danger of innocent persons being harassed when such preparation was even for innocent purpose.
Furthermore there is always possibility of persons repenting and going back from their evil
determinations even though they had made preparations for the same.
Under the Indian Penal Code there are certain exceptions to the rule that preparation is not
punishable. These are :
1. Collecting arms etc. with intention of waging war against the Government of
India (Sec. 122).
264Hali, Jerome; General Principles of Criminal Law, p. 577.

265Hali, Jerome; General Principles of Criminal Law, p. 577.
266Huda, S.; The Principles of the Law of Crimes in British India, p. 47.
2. Committing depredation or making preparation to commit depredation on
territories of any power in alliance or at peace with the Government of India (Sec. 126).
3. Making or selling instrument for counterfeiting coin (Sec. 233), making or
selling instrument for counterfeiting Indian Coin (Sec. 234) and possession of instrument or
material for the purpose of using the same for counterfeiting coin (Sec. 235).
1. Making preparation to commit dacoity (Sec. 399).
It was held in Raman Chettiar267 that mere writing out of bogus telegrams with a view to
despatch them for the purpose of cheating amounts ônly to preparation.
Attempt—There may be a crime where the whole of the actus reus that was intended has not
been consummated. Liability begins only at a stage when the offender has done some act which not
only manifests mens rea but goes someway towards "carrying it out. An attempt to commit a crime
is an act done with intent to commit that crime and forming part of a series of acts which would
constitute its actual commission if it were not interrupted. The point at which such a series of acts
begins cannot be defined but depends upon the circumstances of each particular case. An act done
with intent to commit a crime, the commission of which, in the manner proposed was, in fact,
impossible, is an attempt to commit that crime. The offence of attempting to commit a crime may be
committed in cases in which the offender voluntarily desists from the actual commission of the
crime itself.268
Attempt to commit an offence can be said to begin when the preparations are complete and
the culprit commences to do something with the intention of committing the offence and which is a
step towards the commission of the offence. The moment he commences to do an act with necessary
intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined
and must, therefore be taken to its ordinary meaning.269
It was held in Aman Kumar v. State of Haryana,270 that the word attempt is to be understood
in its ordinary meaning. It has to be distinguished from intention to commit offence and preparation.
Attempt means an act which if not prevented would have resulted in full consummation of act
attempted. The degree of moral guilt of the offender in case of attempt is the same as if he had
succeeded. Moral guilt must be united to injury in order to justify punishment. As injury is not as
great as if the act had been committed, only half the punishment was awarded in this case for
attempt to commit rape.
Any overt act immediately connected with the commission of an offence forming part of a
series of acts which, if not interrupted or frustrated would end in the commission of the actual
offence, is, if done with a guilty intent an attempt to commit offence. 271 Mayne defines attempt as
the direct movement towards the commission after the preparations have been made. In Regina v.
Cheesman,272 Lord Blackburn has said that there is no doubt a difference between a preparation
antecedent to an attempt and the actual attempt, but if the actual transaction has commenced which
would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.
According to Cockburn, C.J., "attempt clearly conveys with it the idea that if the attempt had
succeeded the offence charged would have been committed.273
Attempt has not been defined in the Indian Penal Code, but ordinarily to constitute an attempt
the following elements are necessary :
(i) mens rea to commit the offence;
(ii) an act which constitutes the actus reus of a criminal attempt;
(iii) failure in accomplishment i.e., the act must fall short of completion
of the intended crime. According to Kenny "the actus reus of attempt is reached
in such act of performance as first gives clear prima facie evidence of mens rea.
According to Russel the practical test for the actus reus in attempt is that the
prosecution must prove that the steps taken by the accused must have reached
the point when they themselves clearly indicate what was the end towards
which they were indicated. In other words the steps taken must themselves be
267(1926) 51 M.L.J. 635.

268Stephen, Digest of Criminal Law (8th Ed.) Art. 29, p. 26.
269Ram Kripal S/o. Shyam Lai Charmakar v. State of Madhya Pradesh, 2007 II Cri. L.J. 2302 (S.C).
2702004 Cri. L.J. 1399 (S.C).
271Halsbury's Laws of England (3rd Edn. 1955) Vol. 10, p. 307.
272(1852) 1 L. & C. 140.
273Queen v. McPherson, D. &.B. 202.
sufficient to show prima facie the offender's intention to commit the crime
which he is charged with attempting.274
Proposed definition of attempt.—It would also be useful to present the definition of attempf
as given in the proposed Indian Penal Code Amendment Bill. A new section 120C is proposed to be
added providing definition of attempt. According to this section a person attempts to commit an
offence when—
(a) he, with the intention or knowledge requisite for committing it, does any act
towards its commission;
(b) that act so done is closely connected with, and proximate to the commission of
the offence; and
(c) the act fails in its object because of facts not known to him or because of
circumstances beyond his control.
Proposed illustrations to the above section are as follows :
(a) A intending to murder Z, buys a gun and loads it. A is not yet guilty of an
attempt to commit murder. A fires the gun at Z, he is guilty of an attempt to commit murder.
(b) A, intending to murder Z, by poison, purchases poison and mixes the same with
food which remains in A's keeping. A is not yet guilty of an attempt to commit murder. A
places the food on Z's table, or delivers it to Z's servant to place it on Z's table. A is guilty of
an attempt to commit murder.
(c) A, with an intent to steal jewels, breaks open Z's box, and finds that there is no
jewel in it. As his act failed in its object because of facts not known to him, he is guilty of an
attempt to commit theft.
Distinction between preparation and attempt.—Preparation is a mental act with follow
up of some action to do a particular thing. Preparation consists in devising or arranging the
means or measures necessary for the commission of the offence. Justaposed, an attempt to
commit the offence is a direct movement towards the commission after preparations are
made. It was held in Fagna Bhoi v. State of Orissa? that in order that a person may be
convicted of an attempt to commit a crime, he must be shown first to have had an intention to
commit the offence and secondly, to have done an act which constitutes the actus reus of a
criminal attempt. The sufficiency of the actus reus is a question of law which has presented
difficulties because of the necessity of distinguishing between acts which are merely
preparations to the commission of a crime, and those which are sufficiently proximate to it to
amount to an attempt to commit it. It was further held that an "attempt may be stated to be
an act done in part execution of a criminal design amounting to more than mere preparation,
but falling short of actual commission, and possessing all elements of the substantive crime,
except for failure to constitute the act"
The relative proximity between the act done and the evil consequence contemplated,
largely determines the distinction between preparation and attempt. The law generally
ignores the acts of preparation. It interferes when such preparation precludes the possibility
of an innocent intention i.e., when arranging of means clearly manifests the intention of it
being used for wrongful purposes.
In order to have a criminal attempt, there must be an act "moving directly towards the
commission of the offence",275 or "commencement of consummation"276 or direct movement
tending "immediately" or "proximately".277 According to Holmes "the act done must come
pretty near to the accomplishing that result" 278 or "very near to the accomplishment of the
act".279
In Om Prakash v. State of Punjab? A denied food to his wife B for several days by keeping
her confined in a room with an intention to accelerate her death. B ultimately managed to
escape. Here A was held liable for attempt to murder B.
274Russel on Crime (11th Edn.) p. 195.

275Milner v. State, Ala, App. 157.
276Lee v. Commonwealth, 141, Va 594.
277Skilton, The Requisite Act in a Criminal Attempt. 34 Pitt. L. Rev. 308 (1937).
278Commonwealth v. Kennedy, 170 Mass. 18.
279Commonwealth v. Peaslee, \11 Mass. 267.
"An attempt is an intent to do a particular criminal thing, with an act towards it falling
short of thing intended.280 It is "an intended apparent unfinished crime."281
Secondly, preparations are generally not punishable, whereas an attempt is. The reason
as to why preparations are not punishable has been explained earlier in this Chapter.
The difference between preparation and attempt has been examined by Lord
Blackburn-in Reg v. Cheesman,282 as follows :
"There is no doubt a difference between a preparation antecedent to an attempt
and the actual attempt, but if the actual transaction has commenced which would have
ended in the crime if not interrupted, there is clearly an attempt to commit the crime."
Thus preparation is punishable only in exceptional cases. The exceptional cases are
either where the contemplated offence is so grave that it would be necessary to stopit at its
1. 1992 Cri. L.J. 1808 (Orissa).
earliest stage or where the preparations are so peculiar in nature as to preclude the likelihood of their
being meant for innocent purposes.283 Offences under sections 122 and 126 of the Penal Code are of
the former kind and those tinder sections 233, 234 and 235 are of the latter category.
Acts remotely leading towards the commission of the offence are not to be considered as
7. A.I.R. 1961 S.C. 1782.
attempts to commit it, but acts immediately connected with it are. 284 The word attempt clearly
conveys with it the idea that if the attempt had succeeded the offence charged would have been
committed.285
The test for determining whether the acts constitute attempt or preparation under the Penal
Code is whether the overt acts already done are such that if the offender changes his mind and does
not proceed further in its progress, the acts already done would be completely harmless. But where
the thing done is such as, if not prevented by any extraneous cause would fructify into commission
of an offence, it would amount to an attempt to commit that offence. 286 An attempt to commit an
offence does not cease to be an attempt merely because after the attempt is made and before the
actual completion of the offence the offender may be able to prevent its completion by doing some
other act in pursuance of a changed intention.287
Theories of attempt.—Various theories are advocated to distinguish between preparation
and attempt.
(a) Proximity Rule.—An act or series of acts constitute an attempt if the offender has
completed all or at any rate all the more important steps necessary to constitute the offence but the
consequence which is the essential ingredient of the offence has not taken place. The proximity rule
is embodied in the latin maxim cogitationis poenam nemo patitus which means that no man can be
punished for his guilty purposes, save so far as they have manifested themselves in overt acts which
themselves proclaim his guilt. It covers cases where non-production of the consequence may be
solely due to want of skill on the part of the offender or it may be due to other causes operating on
the offender personally or it may be due to causes in no way connected with the offender. For
instance, A shoots at B intending to kill him but misses the mark for want of skill or any other
defect in the gun and the like. Here A would be liable for attempt. Where A points a gun at B and
presses the trigger in order to shoot him dead, but it turns out that the gun was not loaded, A would
be liable for attempt because he has missed the object due to the gun being not loaded otherwise he
has done everything in his hand towards the commission of the offence.
R. v. Taylor288 case is an illustration of the proximate rule wherein A was found guilty of
attempting to commit arson as he was detected in the act of lighting a match stick behind a haystack
but instead of lighting had A been found only to have purchased or even in possession of match box
he would not have been held liable for attempt because it was difficult to prove that the match stick
280Bishop, New Criminal Law, Vol. I, Sec. 728; see also Om Prakash v. State of Punjab, A.I.R. 1961 S.C.
1782.
281Wharton, Criminal Law, Vol. I, p. 173.
282(1862) I.L. & C. 140.
283Huda, S. : The Principles of the Law of Crimes in British India, pp. 47-48.
284Per Baron Parke in Eagleton, (1855) Dearsly 515.
285Per C.J. Cockburn in M'c Pherson's case, D. & B. 202.
286Tustipad Mandal, A.I.R. 1950 Cut. 75.
287Haricharan, A.I.R. 1950 Orissa 114.
2881895 1 F. & F. 511.
was to commit arson of haystack. However even in the first case it would be difficult to punish A if
he comes out with a plea that striking the match was to light his cigarette.
R. v. Robinson? is another case on the point. In this case a jeweller with the object of
fraudulently obtaining insurance moneys hid his stock of jewellery, tied himself up beneath a chair
and cried for heIP. The police passing along the road hearing the noise entered the house and found
the jeweller in helpless position. The
7. (1915) 2 K.B. 342.

786 N&AN PBWL COOE S 5T7
police was told that the jeweller has been robbed after tying him in this helpless position. The safe was
found open and jewellery missing. Subsequent investigation revealed that the jeweller had made these
false pretensions just to obtain money from the insurance company. The jeweller himself confessed it.
It was held that the jeweller could not be convicted of an attempt to obtain money by false pretences, as
his acts had been merely acts of preparation for the crime and not a step towards it. Thus if a man has
merely made preparations for the commission of an offence and some other step has yet to be taken
towards the commission of the offence, he cannot be punished for attempt.
In Haughton v. Smith,289 a van loaded with goods stolen from a firm in Liverpool was stopped by
the police. The van was proceeding to a rendezvous with the accused in Hertfordshire where the goods
were planned to be disposed of by the accused in London Area. In order to trap the accused the van was
allowed to continue its journey with two police men concealed inside and a disguised police man beside
the driver. The accused met at the destination and he along with one other person started playing a
prominent role in assisting in the disposal of the load. Thereafter the trap was spung and the accused and
others were arrested. The accused was charged with attempting to handle stolen goods believing them to
be stolen goods under section 22 of the Theft Act, 1968. Acquitting the accused the court held that "a
person could only be convicted of an attempt to commit an offence in circumstances where the steps
taken by him in order to commit the offence, if successfully accomplished, would have resulted in the
commission of that offence. A person who carried out certain acts in the erroneous belief that those acts
constituted an offence, could not be convicted of an attempt to commit that offence because he had
taken no steps towards the commission of an offence. In the present case the goods were not stolen
goods at the time of handling and it was irrelevant that the accused believed them to the stolen goods. In
order to constitute an offence under section 22 of the Theft Act, 1968 the goods had to be stolen goods
at the time of handling.
It is debatable whether the rule laid down in Haughton v. Smith will hold good in our country as
well. Section 410 of the IP. Code defines 'stolen property' and Section 411 of the Code makes
dishonestly receiving stolen property an offence. Some are of the opinion that the rule will apply to an
attempt of the offence under Section 411, IP. Code, but the present author submits contrary to this view.
In his view illustration (b) to Section 511 of the Code clearly demonstrates that in case of pick pocketing
even though the attempt fails because \of the pocket being empty still the person attempting is made
liable and his ■erroneous belief is no excuse.
In R. v. Shivpuri,290 the appellant was arrested by Customs Officers while in possession of a suit
case which he believed to contain prohibited drugs whereas on analysis the drugs found in the suit case
were found to be only snuff or harmless vegetable matter. The accused had admitted to the Customs
Officers after his arrest that he was dealing in prohibited drugs. He was charged under section 1 of the
Criminal Attempts Act, 1981 with attempting to commit the offence of being knowingly concerned in
dealing with and harbouring prohibited drugs in violation of Section 170(l)(b) of the Customs and
Excise Management Act, 1979.
The House of Lords held that a person could be held guilty of an attemptonly if he did an act which was
more than merely preparatory to the commission of the offence which he intended to commit, even if the
facts were such that the actual offence was impossible. In the present case since the appellant had
intended to commit the offence of dealing with and harbouring prohibited drugs, which was an offence
under Section 1 of the Criminal Attempts Act, 1981, and since he had done acts which were more than
merely preparatory to the commission of the intended offence, he was liable for attempting to commit
the offence charged.
As far the Indian cases are concerned the proximity rule has been applied in 7?. v. Riasat Ali} In
this case the accused gave orders to a press to print 100 forms similar to those formerly used by Bengal
Coal Company. He had corrected the first proof and also suggested further corrections in the second
proof in order to appear exactly like the form used by the company. At this stage the accused was
arrested and charged with the offence of having attempted to make a false document under Section 464
IP. Code. It was held that the accused was not liable because attempt could not be said to be complete
until the seal or signature of the Bengal Coal Company was affixed to the document. What has been
done in this case was not an act towards making one of the forms of false document, but if he were
caught in the act of writing the name of the company upon, the printed forms and had completed a single
letter of the name, then the actual transaction would have commenced which would have ended in the
crime of forgery and the accused would have been held guilty of the offence of attempt to commit
forgery.
(b) Theory of Impossibility.—At one time the rule was that it would be no crime if a man attempted to
do that which in fact was impossible to perform. The rule was laid down in Queen v. Collins291 case
289(1973) 3 All E.R. 1109.

290(1986) 2 All E.R. 334 (H.L.).
291(188D 7 Cal. 352.
where it was held that if.A puts his hand into the pocket of another with an intention to steal but finds
nothing, he cannot be convicted of an attempt to steal. The absurdity of the above rule was commented
upon by Buttler, J., an American Judge as follows : "It would be a novel proposition that a known pick
pocket might pass around in a crowd in full view of a police man, and even in the room of a police
station, and thrust his hand into the pockets of those present, with intent to steal, and yet not to be liable
to arrest or punishment until the police man has first ascertained that there Was infact money or
valuables in some of the pockets".
Similarly in R. v. Mc Pherson? A was not held guilty for breaking and entering a building and
attempting to steal goods which were not there. Bramwell, J. cited an illustration in R. v. Mc Pherson
case that if A mistaking a log of wood for B and intending to murder B, strikes the log of wood with an
axe, A has not attempted to murder B. R. v. Dodd292 was also decided on the above lines where it was
held that a person could not be convicted of an attempt to commit an offence which he could not
actually commit. In R. v. Brown,293 it was said that the above cases were decided on a mistaken view of
the law.
However Queen v Collins and other cases were overruled in R. v. Ring,294
2. 9 Cox. C.C. 407.

3. (1857) 7 Cox 281.
292(1868) 18 L.T. (N.S.) 89.

29324 Q.B.I). 537. •
294(1892) 17 Cox 49l.
S. 511 1 OF ATTEMPT TO COMMIT OFFENCES 660
where in the accused was convicted for attempting to steal from the hand bag of a woman although
there was nothing in the bag. Illustration (b) to Section 511 of the I.P. Code is based on this
decision. Thus cases earlier to R. v. Ring? were decided on the assumption that no one can be
punished for attempting an impossibility. This was known as "Theory of Impossibility".
Impossible attempts are not punishable but the impossibility must be absolute and not only
relative. Absolutely impossible acts are those where both mens rea and actus reus is present, but the
act in such cases does not cause alarm or sense of insecurity to the society. According to Huda the
following are some cases of absolute impossibility295—
(1) A shoots at a shadow sufficiently near another person so as to put that person in
peril, it is not attempt. However, a different view has been expressed by Wharton in case of
shooting at a shadow.296
(2) A with an intention to kill B administers sugar mistaking it for arsenic. Since no
consequence follows the act, it is not attempt. According to R. v. Osborne? A is not liable
because he was not on job. In this case A had sent some pills to a pregnant woman in order to
cause an abortion. She took them but they appeared to be innocuous and A was held not to
have attempted. Here it is not a case of attempting impossibility but the man is not on job. In
this case Rowlatt, J., held that if a man fires his gun at a stump of tree thinking it is his
enemy and his enemy is miles away; and there is no body in the field at all, he is not near
enough to the job to attempt it; he has not begun it; he has done it all under a
misapprehension; If the thing was not noxious though he thought it was he did not attempt to
administer a noxious thing by administering the innocuous thing. The real question is
whether it was noxious.297
But a contrary view has been expressed in R. v. Spicer? The latter view is more sound and is
supported by the decision of the Supreme Court. Now the intention of the accused as evidenced by
his conduct is more dominant ingredient than that it should be the penultimate act. 298 Now an act in
order to be an attempt need not be the penultimate act towards the commission of the offence but
must be an act during the course of committing that offence.299
(3) A tries to kill B by witch-craft, it is not attempt R. v. White? is an example of relative
impossibility where A with an intention to kill B, administers arsenic, a poisonous substance to B
but the dose is found to be inadequate so as to kill B. Here because arsenic had the quality to kill but
the man was not killed because the dose was inadequate, it would be attempt.
(c) Object Theory.—The Third theory tries to differentiate between cases where the object is
merely mistaken and cases where the object is absent. In Jhe former case it would be an attempt but
the latter would not. Where a pick-pocket
1. (1892) 17 Cox 491.
4. (J920) 84 J.P. 63.

6. (1955) 39 Cr. App. 189.
9. (1910) 2 K.B. 124.
295Huda, S; The Principles of the Law of Crimes in British India, p. 56.

296Wharton p. 213.
297Ibid.
298State of Maharashtra v Mohd Yakub, A.l.R. 1980 S.C. 1111.
299Abhayanand Mishra v State of Bihar, A.l.R. 1961 S.C. 1969.
puts his hand in an empty pocket he is only mistaken but where one shoots at a shadow the object is
absent. Huda has made a distinction between attempts in case of offences relating to property and
those relating to human body. In case of offences against property mens rea plays a prominent role;
in case of offences against human body the objective element, namely the amount of injury inflicted
upon the individual is significant. Section 511 however does not recognise a distinction on the lines
suggested by S. Huda. Huda accepts three exceptions to this rule on the ground that these cases
cause alarm in the society. The exceptions are :—
(i) A intending to kill B shoots at an empty cartridge supposingjt
to be occupied. A has attempted.
(ii) A intending to kill B fires at B's coat hanging in his room
mistaking it for B. A has attempted.300
(iii) A administers to B a drug with the intent to producing abortion,
but the woman was not actually pregnant. A has attempted.301
(d) On the job Theory.—In R. v. Osborne? the accused had sent some pills giving impression that they would provide abortion. They were taken but were found
to be innocuous. It was held that the accused was not on the job and hence he is not liable for attempt. 302 This case has been overruled in R. v. Spicer? and therefore it
would now be an attempt. Some other illustrations of 'on the job' rule may be cited. A intending to kill B, shoots at an empty cartridge believing it to be occupied by B. Here
A has attempted because such shooting will cause an alarm to the society at large. 303 Moreover A was on his job but the desired consequence could, not result because the
object was missing. Similarly A intending to kill B fires at B's coat hanging in his bed room mistaking it for B. A has attempted. 304 In another case A entered into the house
of Ti at night and with an intention to kill B fired in darkness at the bed on which B regularly slept. The aim was perfect but no harm was caused because bed happened to be
empty. A is guilty of attempt. A shoots at B, whose back is turned to him. The attempt fails because B was beyond the range of A's weapon. A is guilty of attempt. A points a
gun at B, whose back is turned to him and pulls the trigger. No harm is caused to B because the gun was not loaded. Here A would be guilty of attempt if he thought that the
gun .was loaded. But if the fact of the gun being not loaded was known to A there will be no attempt. In R. v. Dayal Bauril? the accused was found with a ball of rag
enclosing a piece of burning charcoal near a building. In that village incendiarism had occurred on several occasions produced by a ball of rag with a piece of burning
charcoal in it. The accused was guilty of attempt to commit mischief by fire because a person going about at night with an apparatus specially fitted for committing mischief
by fire intends to commit that mischief and that he has begun to move. In this case Mitter, J., gave a dissenting opinion on the ground that merely being in possession of ball
of rag with a piece of burning charcoal was by no means sufficient towarrant conviction.
Attempt in Penal Code.—The Indian Penal Code deals with attempt in

three different ways : -
(1) In some cases the commission of an offence and the attempt to commit it, are
dealt with in the'same section and the extent of punishment is also the same for both.305
(2) In some cases attempts for committing specific offence are dealt with side by
side with the offences themselves but separately and separate punishments are provided* for
the attempts from those of the offence attempted.306
(3) Provision has been made in Section 511 in respect of those offences which are
not covered by the above two categories i.e., which are not otherwise provided for in the
3. (1920) 84 J.P. 63.
5. (1955) 39 Cr. App. 189.

Indian Penal Code.
8. (1869) 4 B.L.R.A. (Cr.) 55.

Ingredients of Section 511.—Attempt under this section requires the
following ingredients :— \t
(1) Attempt must be to commit an offence punishable by the Indian Penal Code
with imprisonment for life or împrisonment or to cause such an offence, to be committed,
300J . Wharton p. 213.

301R. v. Goodall, 2 Cox C.C. 41.
302Wharton p. 210.
303Wharton p. 213.
304Ibid.
305See Sections 196, 198, 213, 239, 240, 241, 250, 254, 385, 387, 389 and 396 of the Code.
306See Sections 307, 308 and 393 of the Code.
S. 511 1 OF ATTEMPT TO COMMIT OFFENCES 662
(2) The person'attempting must do an act towards the commission of the offence as
stated above.
(3) Attempt under Section 511 is punishable where there is no express provision for
punishment of such an attempt under the Code. : Illustrations (a) and- (b) to Section 511 are
based on R. v. Ring,307 case which
overrules the earlier cases R. v. Collins? R. v. Mc Phersorv308 and R. v. Dodd? that were based on a
mistaken view.
Offence punishable by this Code.—No criminal liability can be incurred
under the 'Code by an attempt to do an act, if done will not be an offence against
the Code.309 '
With imprisonment for life or imprisonment.—The use of this expression makes it clear
that the offences punishable with death only, or fine only, are not covered by Section 511.
To cause an offence to be committed.—The offence attempted may be any offence under
the Code including the abetment of an offence because abetment itself is an offence.
Does any act towards the commission of the offence.—The act must be one immediately
and directly tending towards the execution of the principal crime and committed by the accused
under such circumstance that he has the power of carrying his intention into execution. Thus where
a man goes to the stack with intention of setting fire to it and lights a Lucifer for that purpose but
abandons the attempt because he finds that he is being watched, he would be guilty of attempting to
set fire.310
Where no express provision is made by this Code.—This section does not apply to those
cases of attempts which are made punishable by specific sections of the Code. Its application is
residuary in nature and covers those cases which are not otherwise provided for to be punished as
attempt under the Code.
4. 9 Cox C.C. 497.
5. (1827) D. & B. 197 at p. 202; 7 Cox C.C. 281.
6. (1868) 18 L.T. (N.S.) 88,
Distinction between Section 511 and Section 307.—There is conflict of opinion among the
High Courts about the scope of Section 511 and section 307 of the IP. Code. In R. v. Francis
Cassidy? the Bombay High Court held that Section 511 is wide enough to include all kinds of
attempts~~funishable under the Code including attempt to commit murder, which has been
specifically provided in Section 307 of the Code. In this case it was further held that in order to
constitute an offence under Section 307, it was necessary that there must be an act done under such
circumstances (i) that death might be caused, if the act took effect, (ii) that the act complained of
must be capable of causing death in the natural and ordinary course of things. If the act was not of
that description, a person could not be convicted of an attempt to murder under Section 307, though,
the act was done with the intention of causing death, and was likely, in the belief of the prisoner, to
cause death.311 In Jiwan Pas v. King Emperor? the" former Chief Court of Punjab fiad also
expressed its opinion that Section 511 was much wider than Section 307 of the Code. But the
Allahabad High Court in Queen v.. Nidha? had expressed a contrary opinion and held that Section
511 does not apply to attempt to murder which has been exclusively provided for by Section 307 of
the Code. It was also held that Section 307 is exhaustive and not narrower than Section 511 so far
attempt to commit murder is concerned. Mayne has approved the view of Bombay High Court while
Dr. H.S. Gour supports the view of Allahabad High Court.
It was held in Konee312 that for application of Section 307 the act done must
be one capable of causing death and it must also be the last proximate act
necessary to constitute the completed offence; but under Section 511 the act may
be any act in the course of the attempt towards commission of the offence.
However, the proposition that under Section 307 the act must be the last
proximate or the penultimate act is no longer correct. In view of decision of the
Supreme Court in Om Prakash313 case the position with regard to the penultimate
30717 Cox C.C. 497.

308See Sections 196, 198, 213, 239, 240, 241, 250, 254, 385, 387, 389 and 396 of the Code.
309Mangesh Jivaji. (i887) 11 Bom. 376.
310William Taylor, (1857) 1 F. & F. 511.
311Ibid, per Cough, C.J.
312(1867) 7 W.R. (Cr.) 48.
313(1961) 2 Cr. L.J. 848 (S.C). l: Ibid. •
1. (1867) 4 B.H.C. (Cr. C.) 17.
3. (1904) P.R. 30
of 1904.
4. (1891) I.L.R.
act is the same under both the sections. In this case it was held that like Section
511 and in SectiotK307 too the act need not be the penultimate act. In Om
Prakash314 case the accused denied food to his wife for several days by keeping
her confined in a room with a view to accelerate her death though she ultimately
managed to escape. It was held that the act of the accused amounted to attempt
to murder punishable under Section 307 although his act was not the last
proximate act which would have caused death. Here act does not mean any
particular, specific, instantaneous act of a person but denotes act as defined under
Section 33 of _the Code i.e., the act denotes as well a series of acts as a single
act. ^
314A.l.R. 1961 S.C. 1698.

S. 511 ] 664
OF ATTEMPT TO COMMIT OFFENCES
Some Illustrative Cases and Problems

In Abhayanand Mishra v. State of Bihar? A applied to the Patna University for permission to
appear at the M.A. Examination in English as a private candidate representing that he was a
graduate and that he was teaching in a
certain school. In support attached certain experience
certificate purporting to be from the Head Master of the School and the Inspector of Schools. The
permission was granted. Later on it was found that he was neither a graduate nor a teacher and
therefore, the permission was withdrawn. A was held guilty of attempting to cheat.
The Supreme Court held that-the stage of preparation was complete when the accused
prepared the application for submission to the university and the moment it was despatched the
offence of attempt was complete. In the opinion of the Court a person commits the offence of
attempt.to commit a particular offence when (1) he intends to commit that offence, and (2) 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.
The above principle was reaffirmed by the Supreme Court in Sudhir Kumar, Mukherjec v.
State of West Bengal.315 In this case the question was whether the signing of a challan evidencing
receipt of goods without actually receiving the goods on the part of the accused amounted to attempt
to commit offence under Section 120-B read with Sections 420 and 511 of the Penal Code. The
defence plea was that it was only the stage of preparation because for cheating affixing of stamp to
the challan and again signing of the same by the accused would be necessary. It was held that in this
case quite good amount of money was given to the supplier from the company. The challan had been
prepared and the initials of the concerned clerk were obtained by the accused. All this was a definite
step towards the commission of the offence of cheating though the penultimate step of affixing the
stamp and signing by the accused in order to enable the supplier to receive the payment was not
completed. The act of the accused was not only preparation but it amounted to attempt.
In State of Maharashtra v. Mohd. Yakub? three persons (i.e. drivers of a jeep and truck and a
cleaner of the truck) were convicted for attempting to smuggle silver out of India. They were caught
on receipt of definite information and were found near a sea coast which was accessible to sea-faring
vessels. On search silver ingots were found concealed in the trucks. Further the sound of the engine
of a mechanised vessel was heard from a nearby creek. Accused were held guilty of attempting to
export silver out of India by sea. Sarkaria, I., observed :
"What constitutes an 'attempt' is a mixed question of law and fact, depending largely
on the circumstances of the particular case. 'Attempt' defies a precise and exact definition.
Broadly speaking all crimes which consist of the commission of affirmative acts are preceded
by some covert or overt conduct which may be divided into three stages. The first stage exists
when the culprit first entertains the idea of intention to commit anoffence. In the second
stage, he makes preparations to commit it. The third stage is reached when the culprit takes
deliberate overt steps to commit the offence. Such overt act or step in order to be 'criminal'
need not be the penultimate act towards the commission of the offence. It is sufficient if such
3. 1980 Cr. L.J. 793.
act or acts were deliberately done, and manifest a clear intention to commit the offence
aimed, being reasonably proximate to the consummation of the offence."
In Mohd. Yakuh,316 Chinappa Reddy, J., observed :

"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. In other words, the act must reveal with reasonable certainty, in conjunction with
other facts and circumstances and not necessarily in isolation, an intention, as distinguished
from a mere desire or object, to commit the particular offence, though the act by itself may be
merely suggestive or indicative of such intention, but that it must be, that is, it must be
indicat've or suggestive of the intention."
In this case the truck was driven upto a lonely creek from where the silver could be
transferred into a sea faring vessel. This fact was although not conclusive but suggestive or
315A.l.R. 1973 S.C. 2655.

3161980 Cri. L.J. 793 (S.C).
indicative that the accused wanted to export the silver. Since all this was done in a clandestine
fashion, at dead of night, the court has rightly concluded that there was reasonable certainty about
the intention of the accused to export the silver,
A administers a poisonous substance to a woman B with an intention to cause miscarriage. It
turns out that the woman was not pregnant. A has attempted. 317 A writes and sends to B, a letter
inciting B to commit a felony, B does not read the letter. A has attempted to incite B to commit a
felony.318 A procures dyes for the purpose of coining bad money. A is liable for attempt. 319 A goes to
Birmingham to buy dyes to make bad money. A has not attempted. 320 A procures indecent prints
with intent to publish them. A is liable for attempt. 321 A having in his possession indecent prints
forms an intent to publish them. A has not attempted.322;-
A attempts to suborn a witness B, though B was of such a high character as to make success
impossible, or though the witness was incompetent. A has attempted. 323 A takes null oath before B,
an incompetent Officer. A has attempted.324
Amar drew a loaded revolver completely from his pocket but his arm was seized by Balwant before Amar could take any aim at Balwant. While struggling Amar
said several times to Balwant, "I will kill you" but he could not press the trigger of the revolver. In this case Amar is liable for committing- attempt tomurder because he has
already drawn the revolver from his pocket buf was prevented by Balwant before he could take any aim.
A woman ran to a well stating that she would jump into it, and she was caught before she
could reach it. She jvas not guilty of attempt to commit suicide because she might have changed her
mind before jumping into the well.' A and B, the husband and wife had a bitter quarrel over family
planning so much so that B threatened to commit suicide and ran upstairs to jump down froiri the
second storey. A did nothing to prevent her from faking such drastic step but her maid servant
followed B and held her back from jumping down headlong. In this case B would be guilty of
7. Per Bramwell, B., in R. v. Mc Pherson, D. & B. 201. ;

attempting to commit suicide because she was o*hly saved by the maid servant who held her back
from jumping down headlong. The attempt would have fructified has she not been pulled back, there
was no . chance of changing mind.
'A' with an intention to pick-pocket puts his hand into B's pocket. B has a loaded pistol in his
pocket. The thief touches the pistol and the trigger goes of, whereby B is shot dead. Here in the
opinion \of Lord Macaulay A will be liable only for attempting to pick-pocket and not 'for killing
because A cannot be treated differently than all other pick-pockets who steal under exactly similar
circumstances and same intention, with no less risk of causing death and with no greater care to
avoid it.
A asked a native doctor to supply her with medicine for the purpose of poisoning her son-in-
law. It was not attempt but mere preparation. A might be held liable for instigating the native doctor
to abet the accused\in the commission of murder. 325 B takes away his own umbrella believing it to be
\of some one else. B has not attempted theft because even though no interruption had taken place,
the offence of theft could not have been made out. 326 A goes to B's house in the night with an
intention to steal but moved by his poverty leaves a hundred rupees note and comes back. In this
case A will be liable for committing criminal trespass as well as for attempting to steal under Section
379 read with Section 511 IP. Code. A in order to forge a document purporting it to be executed by
one C takes a deed writer to a place G, where it was represented that C will execute the document.
Having gone to the place G, he sends his servant to a stamp vendor who is induced by false
representation to put on the stamp paper an endorsement to the effect that C was the purchaser of the
stamp. At this stage the servant was arrested and this stopped further progress. Nothing as a fact was
written on the blank form. It was not an attempt to commit forgery but an attempt to fabricate false
evidence.327 A made false statement in order to obtain a certificate which would have* enabled him
317R. v. Goodall, 2 Cox C.C 41.

318R. v. Ransford, (1874) 31 L.T. (N.S.) 488.
319Robert's case, Dearsley C.C. 539.
320Per-Jervis C.J., In Robert's case, Dearsley 551.
321R. v. Dugdale, Dear C.C. 64. ;
322Per-Jervis C.J., In Robert's case, Dearsley 551.
323Wharton 210.
324Wharton 210.
325Musst Baklnawar, (1882) P.R. No. 24 of 1882!
326R. v. Osborne, (1920) 84 J.P. 63.
327R. v. Ram Saran, (1872) 4 N.W.P. 46.
S. 511 ] 666
OF ATTEMPT TO COMMIT OFFENCES
to obtain a refund to Octroi duty. The certificate, however, was not granted and in consequence the
attempt failed. A was not liable for attempt to cheat because A could have avoided the offence by his
change of mind.328
In Bashirbhai Mohamedbhai v. The State of Bombay? the accused represented to Champaklal the complainant that, he could duplicate currency notes. The
complainant gave an impression to the accused that he believed thatstatement and with the knowledge of the police officers handed over currency notes. The accused was
caught by the police in the very act of receiving the currency notes with the alleged materials for duplication. The accused was held guilty of attempting to cheat. The
1. Ramakka, (1884) 8 Mad. 5.

Supreme Court held that in this case a false representation had been made and a sum of Rs. 200/- had been obtained from Champaklal. These clearly are acts done towards the
commission of the offence within the meaning of section 511 of the Indian Penal Code. In fact making the false representation and the delivery of property are the two
ingredients of the offence of cheating under section 420 IP. Code. Both these ingredients took place in this case and the accused brought them about. Therefore, it cannot be
6. A.l.R. 1960 S.C. 979. ,

said that the accused had only made a preparation and not an attempt to commit the offence.
In Queen v. Kalyan Singh,329 one Chaturi calling himself Kheri went to a stamp vendor
accompanied by a man named Kalyan Sing and purchased from him in the name of Kheri a stamp
paper. The two then went to a petition-writer and Chaturi again gave his name as Kheri, they asked
the petition-writer to write for them a bond for Rs. 50 payable by Kheri to Kalyan Sing. The petition
writer commenced to write the bond, but his suspicion being aroused, did not finish it, but took both
Chaturi and Kalyan Sing to the police station. It was held that the acts amounted to much more than
a preparation and they were acts done towards the commission of the offence, therefore Chaturi was
liable for attempt to commit forgery.
In Queen v. Peterson,330 the accused was charged for publication of bans of marriage in his
attempt to commit bigamy. It was held that the act of accused constituted only preparation and not
attempt because he could have changed his intention to marry before any ceremony of marriage was
commenced.
In Padala Venkatasami,331 the accused conspired with other persons for making a false
document and in pursuance of that prepared a draft which he was about to copy on an old stamp
paper produced for the purpose and applied to a witness to supply the Telugu date cbrresponding to
the English date which the document was to contain. The act of the accused amounted only to
preparation and not attempt to forge, but he was guilty of abetment.
In Mw/a's332 case D instigated P to personate B and to purchase in B's name stamp paper.
Consequently the vendor endorsed B's name on the stamp paper as purchaser. D acted with the
intention that such endorsement might be used against B in a judicial proceeding. It was held that the
offence of fabricating false evidence had been actually committed and D was convicted of abetting
of the commission of such offence. It was further held that the accused procured the false
endorsement for the purpose of thereafter using it in a judicial proceeding and he will, therefore, be
liable for attempting to fabricate false evidence.
Where a debtor had sent a parcel containing waste paper by insured post to his creditor, as if
the parcel contained the currency notes and thus induced the creditor to sign the acknowledgment, he
would not be guilty of attempt as. the act only amounted to preparation. But if he files the postal
receipt in Court in support of his plea that he had paid the debt, he would be guilty of attemptingto
use as true, fabricated evidence under section 196 read with section 511 of the Code.'
CONCLUSION
The analysis of various theories relating to attempt and the judicial decisions On the subject
discussed in this chapter reveal that it is not only difficult but impossible to suggest any rules or
guidelines which may conclusively help in deciding whether an act amounts to attempt or not.
However, the following guidelines may help in answering the problem in majority of the cases.
(1) Expectation of change of mind.—The difficult cases are those where
the offender has not gone through the whole series of acts necessary to complete
the offence apart from the resulting consequence. In this regard it has been
328Queen v. Dhundi, (1886) 8 All. 304.

329(1894) 16 All. 409.
330(1876) 1 All. 316.
331(1881) 3 Mad. 4.
332(1879) 2 All. 105.
suggested by Huda that "so long as the steps taken leave room for a reasonable
expectation that the offender may of his own free will still desist from the
contemplated attempt, he will be considered to be still on the stage of preparation.
Such an expectation may be based upon the remoteness of the act done from
the last proximate act that would complete the offence." 333 For instance, where a
man having purchased the gun loads it and goes out with it, meets his enemy
and chases him, but is unable to overtake him, he would be guilty of attempt,
because in all probability he would have fired, if he could overtake his enemy.
Moreover his act will cause as much alarm as if he had fired and missed his
aim. But where A is informed that his enemy is within the town, he loads his
gun and goes out on a motorcycle in search of his enemy, here A is not liable
for attempt because he could of his own free will desist from the act
contemplated. Similarly where A, knowing that B is carrying jewellery, plans to
rob and sets out on a scooter armed with revolver and drives in search of B,
he would not be liable for attempt.
If a man merely purchases a stamp paper with the intention of forging a document, even if the
intention is proved, he should not be punished because his act only amounts to a preparation both
because the presumption of innocence is not negatived and because of the remoteness and
consequent probability of a change of intention. But as soon as he begins to write on the paper,
attempt to forgery is constituted. But where a man is found to have commenced writing on a
stamped paper a year ago and to have left the work unfinished, it would not amount to attempt
because his conduct is clear indication of a change of intention.
Where there has been merely the procuring of means for commission of an offence and there
is a gap between this and the commencement of an act that would, in all likelihood, lead to the
offence, the mere procuring of means does not amount to attempt. A man who procures poison to
kill another is considered to be at the stage of preparation and the man who purchases a dye for
counterfeiting the King's coin, would be guilty of an attempt to counterfeit such coin.
(2) Penultimate act.—In view of decision of the Supreme Court in
Abhayanand Mishra v. State of Bihar? in order to be an attempt the act done
must be with an intention to commit the offence, it need not be the penultimate
act towards the commission of that offence but must be an act during the course
of committing that offence. This principle has been reaffirmed by the Supreme
1. Vythinatliaswami Aiyai; (1926) ,24 L.W. 725.
3. A.I.R. 1961 S.C. 1698.

Court in Sudhir Kumar Mukherjee v. State of West Bengal? wherein it was held that the act must be
a step towards the commission of the offence though the penultimate act was not completed.
Similarly in State of Maharashtra v. Mohd Yakuh? it was held that the overt act or step in order to
be 'criminal' need not be the penultimate act towards the commission of the offence. It would be
sufficient if such act or acts were deliberately done and manifest a clear intention to commit the
offence aimed, being reasonably proximate to the consummation of the offence. The act must be
indicative or suggestive of the intention.
It is in view of the above that administering of sugar believing it to be arsenic with an
intention to kill will be an attempt. Similarly where A administers some pills to a pregnant woman in
order to cause abortion, but the pills are found to be innocuous, A would be guilty of attempt
whether the woman was pregnant or not or even though the substance administered was harmless or
the dose was inadequate.
Therefore intention to commit an offence followed by some overt act towards the commission
of the offence would be sufficient to constitute attempt. Intention is much more important. But still
no hard and fast rule can be laid down to determine whether an act amounts to attempt or not, it; will
all depend upon the facts and circumstances of each case judged in the light of above observations.
333Huda, S; The Principles of the Law of Climes in British India, pp. 62-63.
1. A.I.R. 1973 S.C. 2655.

2. 1980 Cri. LJ. 793 (S.C).

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L Klare H.J.; "Changing Concepts of Crime and Tis Treatment", p. 17.

1. Kenny, Outlines of Criminal Law (11th ed.) 1922, pp. 15-16.

1. Huda, The Principles of the Law of Crimes, p. 2.

(iii) An act committed or omitted in furtherance of such an intent;.

1. Fowler v. Padget, (1798) 7 T.R. 509.

included in the list of illegal omissions.

Meaning of Mens Rea

1. Williams, G., Criminal Law, p. 29.

I . (1889) 23 Q.B.D. 168.

1. '(1921) 2 K.B. 119.

1. A.l.R. 1966. S.C. 43.

1. 1971 Cr. L.J. 760 (S.C.).

authority of a superior officer of such constable.

1. Gour, H.S.; Penal Law, Vol. I (5th ed.) p. 1389.

iNDiAN PENAL CODE

Scope of socio-economic crimes

1. Mahesh Chandra; Socio-economic Crimes, p. 72.

and topography exercise considerable influence on behaviour. 1 Montesquieu said,

Poverty-stricken homes cannot inspire socially acceptable behaviour, especially when

1. Barnes and Teeters, 'New Horizons in Criminology' (3rd ed.) at p. 152.

lender.cies residing in any specific foreign group or combination of groups. 1 In

1. Barnes and Teeters, 'New Horizons in Criminology' (3rd ed.) at p. 166.

homes in which mothers work out.1

average person to enjoy many desired activities.'

1. "Family Disorganisation as a Causal Factor in Delinquency and Crime", Federal Probation,.

suggested for the recognition of the principle of strict responsibility—

1. R. v. Tolson, (1889) 23 Q.B.D. 168.

in his Essays in Criminal Science posits that :

/9. Williams, Gr; Criminal Law p. 269.

1. Williams, G.; Criminal Law, (1953) p. 284.

1. Williams, G.; Criminal Law, p. 289.

1. Edwards, Mens Rea p. 243.

The following laws are considered as ex-post facto laws1 :

1. Gaidar v. Bull, (1798) 3 Dali 386.

1. Maxwell, Interpretation of Statutes 10th Ed. 262.

Critique of the Nullum Crimen

In Hussainara Khatoon v. State of Bihar? the Supreme Court discovered

is unable to engage the services of a lawyer on account of poverty or indigence, he

1. 1979 Cr. L.J. 1045 (S.C).

1. (1994) 4 S.C.C. 260.

1. D.K. Basu v. State of West Bengal, A.I.R. 1997 S.C. 610.

(ACT NO. XLV OF 1860) (Received the assent o f the Governor-

Preamble.—Whereas it is expedient to provide a general Penal Code for India; it is enacted as

1. Maine; Ancient Law.

3. Ambassadors and diplomats.—Ambassadors and some other foreign diplomats enjoy

1. Mobarik Mi Ahmad v. State of Bombay, 1958 S.C.R. 328.

The application of the Penal Code is excluded in the following cases :

( 82 ) under this section. A girl of b years was held to

Madras Code to try and determine suits, is a Judge.

intention to cause pecuniary loss or damage to the person deceived.

The term 'document' includes everything done by the pen, by engraving, by

1. Dhannentira Nath Shastri. A.I.R. 1949 All. 619.

1. (1961) 2 Cri. L.I 848.

Criminal act.—'Criminal act' used in section 34 does not refer to

1. Batendra Kumar Ghose v. Emperor, 52 LA. 40 (P.C.).

1. 1983 Cri. L.J. 218 (S.C).

l: A.I.R. 1954 S.C. 706.