• Mains Answer writing PYQs

Lecture No.- 05 By- AKRITI MA’AM

 Recap of Previous Lecture

Topic Mains Answer writing - PYQs

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 Topics to be Covered

Topic Mains Answer writing - PYQs

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 Question

Q.1 ‘X’ times, a leading English daily, prints an article aimed at creating hatred
and enmity between two groups of people i.e a capitalist and the labour class.
The article read : “B and the Chief Minister of the State who were good friends
have conspired together and acquired 100 hectares of fertile land belonging to
the local farmers for special economic zone. To persuade and coerce the farmers
not to challenge the acquisition ‘B’ got burnt the houses of farmers and their
standing crops through his henchmen.

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 The promises of ‘B’ that he will employ the local youth is also false as ‘B’ is
getting youth trained from the constituency of the Chief Minister who would
be employed in various Industries to come up in the SEZ area”.
Can the reporter, editor, printer and published of ‘X Times’ be charged for
offence under Section 153A IPC. Give reasons.

Haryana Mains

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 Promoting Enmity between Classes

• This category of public offence comes

under Section 153A and 153B of the IPC.

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 • The punishment under this Section is maximum imprisonment

of 3 years or fine or both.

• However, if the above-mentioned offence is committed inside a

religious institute, then the punishment would exceed up to 5

years and could be liable for fine as well.

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 Essential Ingredients of Section 153A

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 Bilal Ahmad Kalo vs State of Andhra Pradesh

• Mens Rea is an important element to hold a person

liable for punishment under this Section
• The presence of two communities is important to
attract this provision.
• Mere derogation of the feelings of one community
without any reference to any other community is
not considered under this Section.

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 Section153B

• This section was added to contain the rising

disharmony amongst various communities.

• This was added in the year 1972, in which there

was a high level of tension amongst various castes
and this was affecting not only the social harmony
prevalent in the society but was also affecting the
national integrity of the country.

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 Section153B

• Publishes an imputation that certain person who

belongs to a particular class, religion or caste
cannot bear allegiance to the national integrity.
• A certain group of people belonging to particular
castes or community are bereaved of their right to
citizenship.
• Any of the aforementioned act must perpetuate
discord and harmony amongst different classes of
people.
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 Ans.

The factual position being admitted, let us straight away cut to

the chase, and examine whether a case under section 153A
IPC is made out or not. The outcome will depend on the
answer to the following questions :
• Whether the impugned article has the effect of promoting
enmity between different groups on the grounds of religion,
race, place of birth, residence, language, caste, community
or any other ground ? ; and

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 • Whether this act is prejudicial to the maintenance of harmony
between different groups or castes or communities if the acts
disturb the public tranquility ?;

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 In the factual matrix, both the issues are decided in favour of the accused and
no offence is made out, for the following reasons :-
1. Section 153A IPC was enacted to check communal and fissiparous
tendencies. Therefore, the ‘intention to promote feelings of enmity and
hatred’ is conditio sine qua non for liability u/s 153A IPC. There is nothing
on record to prove requisite mens rea on the part of the functionaries of ‘X
Times’.

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 The article, though strongly worded appears to be a legitimate
journalistic exercise, compatible with the constitutional right
and freedom of press. ‘B’ if aggrieved by these imputations, and if
they are infact found to be scurrilous or defamatory, has to have
his remedy elsewhere.

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 2. Secondly, the section is intended to apply with respect to a definite and
ascertainable class of people. The class contemplated under the section
should be capable of being clearly defined and separable. Seen in this
light, ‘capitalists’ or ‘labour class’ do not constitute classes or
communities within the meaning of this Section. These words lack the
certainty required and overlapping inter-se these categories cannot be
ruled out.

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 (Reference in this regard may be had to the judgment in Maniben Kara,
(1932) 34 Nom LT 1642). Therefore, the impugned article of the accused
persons cannot be said to promote enmity or disharmony amongst two
groups/communities/classes as such.

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3. Furthermore, in order to attract liability under this section, the article has to be
read as a whole, and stray extracts, which might be strongly worded, cannot be
read shorn out of context. The prosecution has not led in evidence the entire
text of the article; In absence of such evidence, it is hard to ascribe the requisite
intention to the accused persons. The court has to be particularly mindful in
cases like the present one, where attribution of liability can have grave
ramifications for the constitutionally guaranteed freedom of speech and
expression, which also has implicit within it, the concomitant citizen’s right to
information.

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 4. Furthermore, the effect of the words must be judged from the standards
of reasonable, strong-minded, firm and courageous men and not those
of weak and vacillating minds. So read, it cannot be said, by any stretch
of imagination, that the contents of the article have the potentiality of
leading to violence, enmity or hatred amongst reasonable men
belonging to either group.

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 Question

#Q. 2 'A' an illiterate boy, servant of 8 years stole a new 'Parker' Fountain Pen
worth Rs. 300/from the table of his employee and sold to B, a student aged 21
years and reading in M.A. for Rs. 10/- only. Both ' A ' and ' B ' are put on trial.
The former is charged with theft and latter for receiving the stolen property.
How would you, decide the case?
(D.J.S. 1996)

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 • Receiving a property that a person knows to be a
stolen one is a crime.
• Such property may have been stolen by way of
theft, extortion, or by any other way.
• It is considered a crime because buying of such
property would encourage crimes like theft,
robbery etc as the person stealing such property
would get money after selling the stolen property.

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 • Therefore, receiving of stolen property is a crime
to prevent the selling of stolen property which may
reward thieves for their criminal acts.
• It also prevents concealing of property by a person
who knows that such property is obtained by an
illegal way.
• There are various provisions related to the
receiving of stolen property in IPC. These are given
under Section 410 to 414 of the IPC.

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 Section 410: Stolen property

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 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.'

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 Ingredients:

1. Stolen property.

2. Whether the transfer has been made, or the

misappropriation or breach of trust has been
committed, within or without India.

3. When stolen property ceases to be "stolen

property".

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 4. If such property subsequently comes
into the possession of a person legally
entitled to the possession thereof.

5. Stolen property coming into

possession of owner before its receipt
by person accused of receiving it.

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 Stolen property:
• A stolen property is one on which the possession of
the property is transferred by -
a) Theft, or
b) Extortion, or
c) Robbery, or
d) Where the property has been misappropriated
criminally, or
e) The property in respect of which the breach of
trust is committed.
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 • The property received must be a stolen one, by any
one of the above mentioned methods.

• The property into or for which the stolen property

is converted or exchanged is not a stolen property.

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 • In Manmohan Roy (1875), it was held that
the money obtained upon a money order
which is a forged one, is not a stolen
property.

• But in Cowell vs. Green, it was held that the

motion obtained by killing sheep which
was stolen alive, was held that it was a
stolen property.

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 When stolen property ceases to be a stolen property:

• The property which treated to be the stolen

property will not longer a stolen property when the
legally entitled person of that property, gets back
possession of that property.

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 • When, the owner of the property gets the possession
of the stolen property, before it is received by some
other person, it ceases to be a stolen property, and if
the other person, having known of the fact that the
property was stolen receives that property, he
cannot be held for receiving stolen property.

• Because, before, he received that, it ceased to be a

stolen property.
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 • For example, if ' A ' steals the watch of ' B ' and ' B '
immediately after somehow gets the watch from the
thief and then ' B ' gives it, ' A ' to sell that watch.
Here, ' A ' cannot be held to receive the stolen
property.

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 • Another example, 'A' dishonestly, misappropriates
the money of ' B ' who is his manager.
• Afterwards, ' B ' comes to know about this fact and
gets the money so misappropriated. When ' B ' gets
back money, the money ceased to be a stolen money.
• ‘B' then, pays out of that money to ‘A' as his salary.
• Here, ' A ' cannot be held to receive the stolen
property, even though he knew that it was a stolen

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one.
 ESSENTIAL INGREDIENTS
Ownerless Property
• It is based on the concept of res nullius which means
that a property which has no owner or which has been
abandoned by its actual owner.
• A property which has no owner cannot be subject to
theft and hence, receiving it would not lead to receipt of
stolen property.
• For e.g- a bull which has been abandoned by its owner
and belongs to no one, taking it would not amount to
receiving of stolen property.
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 ‘Within or Without India’
• Section 410 says that it is immaterial to consider
whether the transfer has been made, or criminal
misappropriation, or breach of trust has been
committed, within or outside India.
• The transfer of such property can be made within
or without India to qualify it as “stolen property”.

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 Property Obtained Otherwise
• It must be noted that a property obtained by
cheating or forgery is not called a stolen property.

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 Property exchanged or converted
• A property which is obtained by exchanging or
converting stolen property is not stolen property in
itself.

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 • For e.g. if some amount of cash is obtained
by selling a stolen property then that cash
would not be called stolen property.

• However, if an ingot is made by melting a

stolen jewellery or ornament, then that
ingot would be stolen property as it is the
same in substance, though altered in
appearance.

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 Section 411: Dishonestly receiving 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.

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 • This deals with the persons who receive the stolen
property.
• It does not deal with the principal offenders.
• This is meant to prevent those persons who trade in the
stolen article.
• Because, the objective of this section is that the receivers
are actually, encouraging the commission of the crime,
and sometimes, the detection of the stolen property
becomes very difficult due to this intermediary act.
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 • This section constitutes the substantial offence.
• This section does not the same as that of the abettor
or conspirator.
• This section does not depend upon the conviction of
the principal offender.
• And in fact, this section provides for more stringent
punishment than the principal offences.

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 Ingredients:
1. Dishonestly receiving or retaining stolen property.
2. Knowledge or reason to believe at the time of
receipt or retention that the property received or
retained was a stolen property.

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 Ans.

In India a child below the age of 7 years is immune from below the age of 7
years is considered child offence which is done by a child under seven years of
age."
Then section 83 IPC gives a qualified immunity to child who is above seven
years but below twelve years of age. Section 83 says:
"Nothing is an offence which is done by a child above seven years of age and
under twelve, who has not attained sufficient understanding to judge of the
nature and consequences of his conduct on that occasion."

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So a child above the age of seven years and below 12 years may be exempted from
criminal liability provided it is proved that due to want of maturity and
understanding, child did not understand the nature and consequence of his
conduct. In Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236 it was observed that
a child under 14 years is presumed not to have reached the age of discretion and
to be doli incapax; but this presumption may be rebutted by strong and pregnant
evidence of a mischievous discretion, for the capacity to commit crime, do evil and
contract guilt, is not so much measured by years and days as by the strength of the
delinquent's understanding and judgment.

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When a teenager, tensed by his elders or provoked by an earlier attack on his
father avenges with dangerous sticks or swords, copying his brothers, Court
cannot altogether ignore his impaired understanding, his tender age and
blinding environs and motivations causatory of his crime.
In Queen v. Begarayi Krishna, ILR (1883) 6 Mad 373 a child of 9 years of age
stole ornament worth Rs. 2.8 and sold it to ' B ' accused for 5 annas. Evidence at
the trial and conduct of child showed that he had attained sufficient maturity
of understanding to judge the nature and consequence of his conduct,
therefore child was held guilty.

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In every case under section 411, I.P.C., two facts, viz-
(1)that a theft was committed and certain articles were stolen and
(2)that the stolen articles were recovered from the possession of the accused,
have to be established by direct evidence. They cannot be presumed. If these
two facts are established and the recovery from the possession of the accused
is a recent one, it will be open to the Court to presume under illustration (a) to
section 114 of the Indian Evidence Act that the accused is either the thief or a
receiver of stolen property. Although such presumption is discretionary.

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The existence of knowledge of an accused person can be seldom proved
affirmatively by positive evidence. The prosecution in cases under section 411
of the Penal Code, has, therefore, to depend generally either on a presumption
arising from possession of recently stolen properties or from inferences
derived from proof of circumstances which render it difficult to exclude the
fact of knowledge. One great question in that cases is the price actually paid for
the thing. If it was a fair market price, it will in ordinary cases be sufficient to
repel suspicion.

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But if there appears a gross difference between the price paid and the price which
represents its intrinsic value, it will be strong evidence no less to dishonestly than
the property was known or believed to be stolen property.
In the present case, a new Parker pen worth Rs.300/- was purchased by B for Rs.
10 \% only. It is important to note that B is not an illiterate person who can be
said to be ignorant about the quality and the market price of the pen. He
purchased such a costly article for a negligent price from an illiterate boy. These
circumstances are enough to convict B for an offence under section 411 of the
Penal Code.

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 Question

Q.3 Discuss the concept of necessity with case laws.

Chhattisgarh Mains

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 SECTION 6

• Every offence in IPC is subject to general

exceptions

• SECTION 105, INDIAN EVIDENCE ACT :

• Burden of proving that case of accused comes
within exceptions : is on the Accused himself

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 GENERAL EXCEPTIONS

As a general principal of law man is

presumed to know the nature and
consequence of his act and is, therefore
held responsible for it.
However, there are certain exceptions to
this rule wherein a person may be
excused of crime.

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 OVERVIEW

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 SECTION 81 : NECESSITY

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

• US V. HOLMES 1842
• QUEEN V. DUDLEY & STEPHEN 884
• The Defendants, Thomas Dudley (Mr. Dudley) and
Edwin Stephens (Mr. Stephens) (Defendants) and two
other gentlemen, Mr. Brooks and the victim, Richard
Parker (Mr. Parker), were stranded on a boat for
several days. When it appeared that the whole party
would likely die of thirst and starvation, the Defendants
decided to sacrifice Mr. Parker for the good of the rest.
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 • If you are going on road – hilly terrain – coming down – suppose break
fails and find some kids on road with flag at 100 m – there was a car
standing on left side- right side is valley – hit your car to this car to save
children – had fraction of seconds to think – car gets damaged badly – you
took danger of hitting car to save children – car mein 2 ppl – got injured –
did not had intention to cause any harm – will get defence U/Sec 81

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 • Situation of imminent danger – in order to avoid
this harm – took risk of other harm without
criminal intention
• Eg : Tiger caught hold of a man A and took him in
his mouth and taking him away – B had gun in his
hand and aims at tiger – A shouts please don’t
shoot. B shot, But hit A, B will get defence of
necessity U/Sec 81 as he acted in good faith

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 ANSWER

• Section – 81 explains the broad principle of (Necessities No habit ugem) which

means ‘Necessity knows no law’. In this section , defense is available to the
accused that an act done by him w/o criminal intention and in good faith for
the purpose of preventing harm to person or property.
• This is also knows as Doctrine of self preservation.
• The preservation of one’s own life justifies the causing of harm to an innocent
person.

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 Ingredients-
1. Accused had the knowledge that act is likely to
cause harm but done w/o criminal intention.
2. The act must have been done in good faith.
3. Such act must have been done for the purpose of
preventing other harm.
4. The harm aimed to be prevented may relate to
person or property.

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 Necessity may be pleaded as defence –
1. Self defence
2. Prevention of harm to accused at expense of
innocent person.

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 • In this case 3 sailors and a cabin boy were cast
away in a storm on the high seas. After sailing for
few days, they had no water & food on the boat.
To survive themselves they killed a boy so that
they can eat his flesh & blood for survival
otherwise also if they had not fed upon the body
of the boy he wouldn’t have survived

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