Theories of Punishment

1. Retributive theory
An eye for an eye/moral justice. Aka Theory of venegeance. Crime was considered private
wrong and therefore the victim himself took the revenge.
As many people in the society would perceive it as, is the most basic, yet inconsiderate theory of
inflicting a penal sentence over a perpetrator. It is based on a very small doctrine, namely the
doctrine of Lex talionis, which if translated, means ‘an eye for an eye’.
2. Deterrent Theory
Jeremy Bentham propounded this theory. Based on hedonism.
Abstain. 2 objectives are first Stop future crimes from the same person and secondly setting an
example for the society.
That simply means, according to this theory if someone commits any crime and he/she is
punished by a severe punishment, then, it may result maybe that the people of the society will be
or may be aware of the severe punishments for certain kinds of crimes and because of this fear in
the minds of the people of the society, the people may stop from committing any kind of crime
or wrongful act.
3. Preventive theory/ theory of disablement
Preventing by (elimination from society) death penalty or life imprisonment. The main idea is to
make the offender helpless. Eg. Suspension from office, cancellation of license.
Preventive theory of punishment seeks to prevent prospective crimes by disabling the criminals.
4. Compensatory theory
Offenders should compensate victim because they did wrong
And state should compensate because it failed in its duty of protecting the citizens.
The main look out in the law of crimes is to penalize the criminal, and/or to seek his reformation
and rehabilitation with all the resources and goodwill available through the Courts and other
Governmental and non-Governmental organizations. It must be seen that the criminals should get
proper judgement for their crimes so caused and the harassment caused to the victim and towards
their family members and property.
Criticism of compensatory theory are not effective like other theories of punishment the
economic position of the offender plays a major role in this theory if the offender is poor, he/she
has no source to pay compensation, if the offender is rich the payment of compensation has no
impact on him, rather it oversimplifies the motive of the crime
5. Reformative theory/Rehabilitative theory
Removal of anti social factors can make offender a better person like education and training.
Hate the crime not the criminal.
The criminal may have executed bad behaviour under conditions which may never happen again.
Hence an effort should be made to transform him during the hour of his confinement. The object
of order should be to accomplish the moral difference in the liable party. He ought to be told and
perform some craftsmanship or industry during the hour of his confinement with the objective
that he may have the alternative to start his life again after his conveyance from jail.
6. Expiatory theory
According to this theory, repentance and expiration by the offender itself is a punishment.
The prisoner or an offender were kept in an isolated cell to repent and expiate or his crime.
This theory believes that every person deserves to be forgiven when he realized his mistake.
It is a matter of morality if an offender didn't realize his offense even after getting severe
punishment soon, he will do another crime but in expiatory theory will make the offender
realize about his/her crime that realization will stop the further offence in the society.
Criticism of expiatory theory are they are not practical in this modern and materialistic society
and it is impossible get inside someone’s mind to know whether they realized their crime or not.

Essentials of Crime
1. Human Being- S.259 of IPC, S.11 (natural and juristic persons)
Company- R vs. Birmingham Railway Co. (1842) 3 QB 223, R vs. Great North of England Railway
Company,

2. Guilty Intention or mens rea

Actus non facit reum nisi mens sit rea- It means an act does not make anyone guilty
unless there is a criminal intent or a guilty mind.
How to determine mens rea- Fradulently (S.25), Dishonestly (S.24), Reason to believe
(S.26), Knowingly (S.151), Voluntarily (S.39).
Exceptions eg strict liability cases- s. 232, s.268, s.359
R vs. Prince (1875), R vs. Tolson (1889)

 Mala prohibita or malum prohibitum- These are acts or omissions which are not
inherently wrongful or immoral by themselves yet because of certain statutes or laws
prohibiting them they are considered crimes. Hence they become punishable under law.
(Intention not important).

 Mala in se or malum in se- These acts or ommissions themselves are inherently wrong
and immoral. (Intention is important).
 3. Act or omission- Professor Kenny for the first time used the word ‘Actus reus’ and defined it
as a result of human conduct which the law seeks to prevent (Actus- Act, reus- forbidden by
law).
The act has to be voluntary.

4. Injury- S.44

Stages of Commission of Crime

1. Intention- mental state (Malafide)
2. Preparation (Exceptions- S.122, 126, 399, 233-235, 255 and 257)
3. Attempt- Act falling just short of commission Inchoate crime-Incomplete crimes
4. Commission

1. The Proximity Test

The proximity test evaluates how close the defendant was to committing that offence. Under this
test, an act comprises an attempt if the accused has completed all or almost all important steps
towards the commission of the crime but falls short of the consequences desired.
2. The Doctrine of Locus Poenitentiae
The Doctrine of Locus Poenitentiae describes the possibility that a person might, after preparing
to commit an offence, change their minds or be compelled by some emotion.
In Malkiat Singh vs the State of Punjab (1968), the accused were driving a truck containing 75
bags of paddy. Under the Punjab Paddy (Export Control) Order 1959, the police arrested the
accused for attempting to export paddy. In the Supreme Court, the accused argued his act was
merely an attempt to commit a crime and not a crime in itself. The Supreme Court accepted the
accused’s point of view and ruled that their acts were still at the stage of preparation. The court
observed that the police arrested the accused 14 miles before the Delhi-Punjab border. It is
conceivable that the accused may have been cautioned that they had no permit to carry the
paddy, and they may have changed their minds at any time before crossing the border.
3. The Equivocality Test
For an act to be an attempt to commit an offence, it must show that it has been done
unequivocally (in a way that leaves no doubt) to accomplish the criminal aim. The steps or
actions taken by the defendant must be self-evident.
In the State vs Parasmal (1968), the Rajasthan High Court discussed the test of equivocality and
observed that whenever a person has the intention to commit a particular crime, he conducts
himself in a manner that shows his intent to do so. Then if he acts in pursuit of that intention in a
way that might help him achieve that intention, it could be argued that he committed the crime of
attempting to commit a particular crime.
4.Social Alarm Test- Common Wealth vs Kennedy
5. Attempting an Impossible Act
If a person attempts to commit a crime which is impossible, then also it will be punishable under
the Indian Penal Code.
If a person attempts to kill someone by empty gun, or steal something from an empty pocket, or
steal jewels from empty jewel box. Then it is considered as an impossible attempt of committing
that crime but here intention to commit the crime is present and also a step is taken towards
completion of that crime. Thus it is considered as ‘attempt to crime’ under Section 511 of the
IPC.

Principles of legal liability

1. Doctrine of double jeopardy- autrefois acquit and autrefois convict- previous acquittal
or previous conviction may be pleaded by the accused as a bar to the subsequent trial.
Nemo debet proeadam causa bis vexari – man should not be put twice in jeopardy for
the same offence. Art 20(2) of the Indian Constitution. S.11 of CPC(res judicata) and
S.300(1) of CrPC.

2. Presumption of Innocence- Beyond reasonable doubt.

Exception- S.114 of Indian Evidence Act
“The Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular case.”

Illustration- That a man who is in possession of 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.

3. Doctrine of Self incrimination

Art 20(3) of Indian Constitution and S.164 of CrPC.

4. Right to Legal aid- Audi alteram partem